Court cases document about south zamintars

Thanks : https://indiankanoon.org/search/?formInput=zamindar Madras High Court Muthanan Servai Alias ... vs B. Raja Rajeswara Sethupathi ... on 6 January, 1922 Equivalent citations: (1922) 43 MLJ 158 Author: Coutts-Trotter JUDGMENT Walter Salis Schwabe Kt., K.C., C.J. 1. This is a claim by the Rajah of Ramnad against the farmers or tenants of villages in that Zamindari to recover from them the money value of certain annual payments received by them from the ryots of those villages. In 1894 two cowles were executed by the then Rajah in favour of those farmers. Before the cowles the Rajah or Zemindar received 48 per cent, of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. Of that 48 per cent one-fourth or 12 per cent of total was received by the Rajah for certain purposes 3 per cent for charities and 9 per cent for the payment of village officers whom the Rajah was liable to pay. By the cowles the Rajah let for a term of years, all his interest in the villages to the farmers. The villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the Rajah himself. Therefore, what was let was his interest in the lands in the occupation of the ryots in respect of which he received the 48 per cent melwaram and such buildings, lands, trees and etc., as were in his own occupation. There was an obligation on the part of the farmers to do certain repairs. After the cowles the farmers, in fact, received the whole 48 per cent melwaram and paid the village-officers in kind. They agreed by trie cowles to pay to the zemindar in addition to the rent-reserved the 3 per cent for the charities and an amount which they collected for road cess for which the zemindar remained liable as between him and the government though between him and the farmers they took over this obligation. 2. Sir John Wallis, C.J., with whose judgment I entirely agree, holds that the effect of the cowles was that the farmers took over with the village and the waram, the obligation to pay thereout what were in fact, charges on that warm, that is, payments to be made to the village-officers out of the waram. Sadasiva Aiyar, J. held that the obligation was taken over by the farmers by custom. This is probably also correct, but, if there is, as I hold, an implied term as found by Wallis, C.J., it is unnecessary to rely upon the custom, At a later date, by the Madras Act II of 1894, the payment of these officers in kind was abolished, and it would follow, if the matter rested there/that the farmers would be freed from liability to make these payments but could keep that part of the melwaram which was leased to them in order that they could make these payments, that is, the 9 per cent. It is argued that they were receiving and paying away the 9 per cent to the village officers as agents of, or trustees for, the Rajah, I am unable to accept this view or to say that there was an implication of the term in the cowle that the farmers should collect the 9 per cent on behalf of the Rajah and that, if at any time the whole or any part were not required for the payment of the village officers, they should account to him for any unused amounts, Now, it is a well established rule that a term will only be implied when the court is driven to the conclusion that the parties must necessarily have intended that stipulation. This is generally kown as the rule in The Moor (1889) 14 P.D. 64 cook page 64, which was followed and clearly enunciated in Hamlyn v. wood (1891) 2 Q.B. p. 488, I can find no such necessity, for the cowle is equally consistent with the farmers taking over the whole waram and taking the risk of what they might have to pay to these village servants. It would be a perfectly intelligible contract and this in my view, is the proper interpretation of this contract. Acting under the statute in question, the Government which had taken over that liability to pay the village servants and relieved the Rajah from that liability, increased the peishkusli payable by the Rajah with the result that, but for a further provision in the statute in a case like this, the Rajah would have to pay the extra peishkush, whereas the farmers would receive and keep what was still being received from the ryots to provide for the payment of the village officers, that is, the 9 per cent. This would be most inequitable and hence Section 27(4) of the Act provides as follows: "If, in any case, the rent payable to al proprietor in respect of any land has been fixed under an agreement subsisting on the date of this Act coming into force, to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, it shall be lawful for the proprietor or tenant to apply to the Collector for sanction to increase the said rent or to demand its reduction; and the Collector shall, upon receipt of such application and upon satisfactory proof of the justice of the claim, grant such sanction and increase or reduce the rent to the amount at which it would have been fixed had no such agreement been entered into." This applies to this case, unless it can be successfully contended that the fanners in question are not 'tenants within the meaning of that section, as was held by Sadasiva Aiyar, J., and was also held in an un-reported case, S.A. No. 510 of 1918, by Oldfield and Krishnan, JJ. I cannot attach importance to the latter case - we do not know what was argued or whether this question was necessary for the decision in that case. I do not agree with Sadasiva Aiyar, J. on this point or with that other judgment, if it so held. In my view, these farmers were tenants in the proper ordinary sense of the word for the reasons I have pointed out above. Further, I am quite clear that they are tenants within the meaning of this section; for on any other construction of this section, persons in the position of these farmers, who were many and known to be many at the time when the Act was passed, would have been left in possession of the produce of land to which morally they have no sort of right, and I do not think I am driven to such an absurd construction. I do not attach any importance to the fact that it has been held under another or other statutes, such as the Madras Rent Recovery Act, that "farmers" - I use the word in the sense of persons farming the rents - are not "tenants" within the meaning of certain sections of those acts. It follows that, in my Judgment, the Rajah is entitled to apply under that section to the proper authority to have the rent payable by the farmers adjusted in accordance with the terms of that section, namely, by increasing the rent to the amount at which it would have been fixed had no agreement been entered into providing that the farmers should pay the village officers. As far as I can see, the result will be that the Rajah will obtain all that he is asking for in this action. But in my view, this action was entirely misconceived and accordingly the appeal must be allowed with costs, and the decree of the Subordinate Judge will be modified by disallowing the value of the manibham and swatantram with interest. The parties will pay and receive proportionate costs both in the Subordinate Judge's court and before the Division Bench. 3. I agree with the observations of Coutts-Trotter, J as regards the decision in Nallayappa Pillai v. Ambalavana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465. Coutts-Trotter, J. 4. I entirely agree, and I only desire to add two observations of my own. The first is this : It seems to me that, where a court feels itself driven, as we do in this case, to make an implication in a contract which is not there in terms, it should endeavour strictly to limit that implication to what is absolutely necessary to carry out what is believed to be the intention of the parties. In this case that appears to be effected by holding that what was intended was that the defendant undertook, as a personal covenant, the duty of discharging the claims of the village-officers and of indemnifying the zemindar against those claims, That seems to me to carry out sufficiently what we hold the parties to have meant, and I decline to go further and imply such conceptions as that of trusteeship or agency into such a matter. 5. The other observation that I desire to make is with regard to Section 27(4) of the Madras Act II of 1894. I think it is most important in this country to construe the terms of an Act taken from the English Law strictly in relation to the immediate context and to decline to be guided by evidence as to their meaning or judicial interpretations of them when they occur in another context or in other statutes. I look at Section 27(4) of this Act and I find these words: "If the rent payable to a proprietor in resect of any land has been fixed under an agreement to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, then certain consequences shall follow. I think that, for the purposes of that section, it is abundantly clear that the word 'tenant' must be so construed as to mean a person in the nature of those defendants whose case we are considering here. It seems to me that once you have got it that the zemindar here, who is clearly the proprietor within the meaning of this statute, sues for payment of rent - and, in fact, the first branch of Mr. Rangachariar's argument was to insist upon it that what was covenanted for here was rent and nothing else - and if you look at this clause and nothing else, it is inevitable to conclude that the person described as a 'tenant' is the person who pays rent to the proprietor and that the one is the mere correlative of the other. Therefore, I think that there is nothing to prevent our holding that the defendant here is a tenant within the meaning of that statute, and I find nothing in Nallayappa Pilial v. Amhalavana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465 to alter that opinion. I would also point out that that case itself very wisely, if I may respectfully say so, proceeded on very much the same lines as I have indicated, namely, of construing the words in strict relation to the exact context and the portion of the statute in which they occur. I only desire to add this that I am not prepared to hold that the learned Judges, who decided Subbraya v. Srinivasa (1904) I.L.R. 27 Mad. 465 and Bashkaraswami v. Sivaswami (1883) I.L.R. 7 Mad. 580 were wrong. Kumaraswami Sastri, J. 6. If the cowles can be construed to be assignments by the Zamindar of the 48 shares in the produce which were allotted to the Rajah's share at the division of the produce subject to the obligation of the transferee to meet the obligation to discharge which 12 out of the 48 shares were liable and an indemnity in favour of the Zamindar, I agree with my Lord and my brother Coutts Trotter J that the remedy of the Zamindar is to proceed under Section 27 of the Proprietary Estates Village Service Act (Act II of 1894). Having regard to the terms of the cowles which are not mere transfers of the melevaram without any transfer of interest in the lands but which transfer in addition the waste forest and other lands in which the Zamindar had a proprietary interest and which also require certain services to be rendered, the cowledar will be a tenant in the ordinary acceptation of the terms. This distinguishes the case from the decision of Oldfield and Krishnan, JJ in S.A. No. 510 of 1918 Rajam Aiyar v. Raja Rajeswara Muthu Ramalinga Sethupathi. 7. He will be a person liable to pay rent to the Zamindar which has been fixed with reference to an implied agreement to the effect that he shall pay the remuneration to the village officers and Clause 4 of Section 27 will in terms apply to him. 8. I find it however difficult to hold that there was any transfer to the cowledar of the 12 shares out of the 48. 9. The immemorial practice in the Zamindari was for the produce being brought to the threshing floor for division between the tenants and the Zamindar. The tenants took 52 shares and left 48 shares for the Zamindar who had to remunerate the village servants and to contribute towards certain charities (Mahamais). So far as the remuneration of the village Munsif, Karnam and watchman were concerned it was a statutory duty. What the Zemindar did was to set apart 1 share of the 48 left after the tenants took their share to the Dharrna Mahamai, 2 shares to the Jari Mahamai and 9 shares for the remuneration of the village officers. The village officers had the right to receive their shares at the threshing floor at the time of the division. They had the right of suit against the Zamindar if they were not paid and could recover their share of the produce both personally and against the estate of the Zamindar. As regards the charities the Zamindar was bound to account and could be proceeded against for breach of trust if he did not set apart and hand over the share due to the charities. It is clear that at the date of the cowles the Zamindar had no interest in the 12 shares which had by long custom been set apart for the discharge of obligations which were perfectly well known to everybody and could be enforced against the Zamindar. These obligations could not be got rid of by the Zamindar by assignment of the melvaram to somebody else, and he remains liable in spite of the assignment. An assignment of the 12 shares would not benefit the Cowledar while it would not place the Zamindar in any better position than he would have been if there was no assignment. At the date of the cowle the position was this. As soon as the tenants took away their 52 shares 36 shares were set apart for the Zamindar, 3 shares for the charities and 9 shares for the village-officers each party taking what was due. The terms of the cowle show in my opinion that what the Zamindar did was to transfer to the cowledar the 36 shares due to him and as to which He had absolute power of disposal and to ask the cowledar to collect and pay over to him the 3 shares which were due for the charities and make the various payments to be made to the Village officers out of the shares. The terms of the cowles in the 2 appeals are similar and I shall take one of them by way of illustration. 10. The cowle Ex. A. in Appeal 159 begins by stating that the sarasari for each fasli on a 10 years' average was 982-10-1 and it fixes the rent at 425-3-1 on this basis. It is found by the Subordinate Judge and not disputed before us that 982-10-1 represents the amount calculated on the 36 shares which belonged to the Zamindar and excluded the 12 shares which were being set apart for the charities and payment to the village officials so that it is clear that the whole basis of the transaction was on the footing that what was being transferred was the net share of the Zamindar and not the whole of the 48 shares that remain after the tenants took their shares. The deed proceeds to stipulate that the cowledar should "along with the said proppu (rent) amount pay the road cess, Jari Mahamai, Dharma Mahamai etc., amounts fixed upon the respective accounts." It is not disputed that these payments were to be made and were in fact being made during all these years to the Zamindar and not to the Government or the charities direct. No adequate reason is given as to why the Zamindar should require the road cess charity amounts to be paid over to him if the 48 shares were assigned with the obligation to meet the liabilities direct. It is suggested that he wanted the charity amounts to be paid over to him direct in order that he might misappropriate a portion of what would otherwise go to the charities. It is extremely unlikely that a man who was assigning a village yielding more than double of what he required the transferee to pay him as rent would stipulate for the delivery to him of 3 per cent of the income in order that he might have the opportunity of misappropriating a small portion of that amount. The absurdity of it is patent. The reason why the Zamindar wanted these sums to be paid back to him is because he assigned over only the net amount after deducting the 12 shares and the 12 shares will have to be distributed between the charities and servants neither the Zamindar or the transferee having any beneficial interest in it. The village servants having the right to take their share out of the 9 shares of the produce set apart for them there was no necessity for the share being paid to the Zamindar and again paid over by him to the servants, convenience obviously suggesting that the cowlder should deliver it direct to the servants. As regards the Dharma Mahamai and Jari Mahamai which represented the 3 shares, as the practice was for the Zamindar to take 3 shares for payment over to the charities he required the cowledar to collect and pay over the 3 shares to him. 11. It is significant that the cowles nowhere state that the cowledar should discharge the obligations to third parties which the Rajah was under an obligation to discharge, it simply states that the cowledar should pay over to the Rajah the road cess and 3 shares allotted to the charities. It says nothing about the 9 shares payable to theVillage officers, a fact which is unlikely if there was a transfer of the 9 shares to the cowledar under an agreement of indemnity should the cowledar not pay the village servants. I agree with the following observations of Sadasiva Aiyar, J. whose knowledge of the land laws and tenures of this Presidency is unique "both the lessee and the Rajah knew and contemplated that the lessee will pay it according to custom to the village officers direct instead of through the Rajah, The Rajah's direct receipt of it himself at the granary and paying it over at once to his village officers would have resulted in a mere circumlocution and unnecessary trouble" I also agree with him in thinking that the 12 per cent was received by the cowledar as agent of the Raja and not by virtue of his right as assignee of the shares with an obligation to discharge the liability of the Raja to pay J per cent to charities and 9 per cent to the village officials. 12. I would confirm the decrees of the Subordinate Judge and dismiss the Letters Patent Appeals with costs. Supreme Court of India State Of Tamil Nadu Etc vs Ramalinga Samigal Madam Etc on 1 May, 1985 Equivalent citations: 1986 AIR 794, 1985 SCR Supl. (1) 63 Author: V Tulzapurkar Bench: Tulzapurkar, V.D. PETITIONER: STATE OF TAMIL NADU ETC. Vs. RESPONDENT: RAMALINGA SAMIGAL MADAM ETC. DATE OF JUDGMENT01/05/1985 BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. KHALID, V. (J) CITATION: 1986 AIR 794 1985 SCR Supl. (1) 63 1985 SCC (4) 10 1985 SCALE (1)1138 CITATOR INFO : R 1987 SC2205 (13) R 1991 SC 884 (22) ACT: Jurisdiction of the civil court when and under what circumstances barred-Civil Court's jurisdiction to determine the nature of the land in respect where of a Ryot has sought a Ryotwari Patta under section 11 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 is ousted or barred under section 64-C of that Act, read with section 3(16)(a), (b) and (c) of the Tamil Nadu Estate Lands Act. HEADNOTE: Under the Tamil Nadu Estates' (Abolition and Conversion into Ryotwari) Act, 1948, estates of several Zamindars including the Sivaganga Estates and Ramnad Zamindari estates were abolished and vested with the Government. In Civil Appeal No. 474, of 1971, the respondent religious Math, in respect of the land admeasuring 3.55 acres being a portion of survey No. 114 obtained from the erstwhile Zamindar of Sivaganga under an (Order of Assignment (Ex. A-1) dated 29.1.1938 Kudi right (i.e. Right to cultivate), subject to the payment of a nominal nuzzur of Re. 1 per acre and an annual rent of Re. 1 per acre beside cesses and a Teervapat Cowle Patta issued in favour of its trustee Sutha Chaitnya Swamigal. After the abolition of the Zamindari estates, the religious Math applied on 25.11.53 for Ryotwari Patta in respect of the said land to the Assistant Settlement Officer, who, without reference to the respondent passed an order (Ex. B-4) on 25.6.54 that Survey No. 114 was not a ryoti land on the notified date but had been registered as Proromboke (village communal land) and, therefore, no one was entitled to Ryotwari Patta in respect of it. Aggrieved by the order, the respondent filed a Civil Suit O.S. No. 184 of 1959 in the Court of District Munsiff at Manamadurai for declaration of its title on the basis of its long and uninterrupted possession prior to 1938 as also under Ex. A-1 issued to it by the Zamindar and right to continue in possession and enjoyment of the suit land, subject to payment of Ryotwari or other cess to be imposed by Government without any interference from the Government. The appellant State resisted the suit on merits by contending that the suit land was communal land and that the assignment or grant by the Zamindar in favour of plaintiff-Madam was invalid as well as by raising a technical plea that the decision of the Additional Settlement Officer that the suit land was poromboke and not ryoti land was final and the Civil Court's jurisdiction to decide that question was barred under section 64-C of the Act. The Trial Court as well as the Sub Judge in appeal accepted the respondent's case on merits by holding that the suit land was a ryoti land and that the assignment of Kudi right therein by the Zamindar in respondent's 64 favour was valid and negativing the technical plea of want of jurisdiction decreed the suit by granting the necessary declaration and injunction protecting respondent's possession and enjoyment of the suit land. In second appeal preferred by the State of Tamil Nadu to the High Court the plea of lack of jurisdiction in the light of section 64-C of the Act was referred to a Division Bench who negatived the contention and dismissed the appeal. The Division Bench took the view that there was no provision under section 11 read with proviso to cl. (d) of section 3 of the Act for the ascertainment of the character of the land (whether it was ryoti land or communal land) and that the decision of the Settlement Officer whether the land is ryoti or not is an incidental one merely for the purpose of granting the Ryotwari Patta and Civil Court's jurisdiction to adjudicate upon the nature of the land when that aspect is specifically put in issue, is not taken away under section 64-C of the Act and that the respondent's suit was not for obtaining a ryotwari patta in its favour (which matter lay within the powers and jurisdiction of the Settlement Officer) but the suit was for injunction restraining the appellant from disturbing respondent's possession and enjoyment of the suit land on the basis of its title and long and uninterrupted possession and such relief the Civil Court could obviously grant. In Civil Appeal No. 1633 of 1971 after an adverse order had been passed by the Settlement Officer to the effect that the land in question was neither a ryoti land in Ramnad Zamindari nor the private property of erstwhile Zamindar, the respondent filed a suit for declaration of their title to the suit land (based on a registered sale deed) and for injunction restraining the appellants from interfering with their possession. In that suit one of the issues raised pertained to the nature or character of the suit land, whether it was a ryoti land in the erstwhile Ramnad Zamindari which had been taken over under the Act or a Poromboke (communal property) and the plea was that the Civil Court had no jurisdiction to decide this question in view of section 64-C. The Trial Court held that the suit property was Poromboke property and dismissed the suit but in appeal preferred by the respondents the sub-Judge held that it was ryoti land and respondents' title and possession thereto had been proved but the suit was barred under section 64-C of the Act and on this basis he confirmed the dismissal of the suit. The High Court in second appeal accepted the findings of the 1st Appellate Court on merits of the respondents' claims and on the question of Civil Court's jurisdiction to adjudicate upon the real nature or character of the suit land following its Division Bench decision held that the Civil Court had jurisdiction to decide that question and allowed the appeal. Dismissing the appeals, the Court ^ HELD: 1. Whether a Civil Court's jurisdiction to adjudicate upon the nature and character of the land in question has been excluded or ousted under section 64-C of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948 will have to be decided by reference to the principles laid down by the Supreme Court, as to when the exclusion of the Civil Court's jurisdiction can be inferred and in particular two out of seven propositions culled out in Dhulabhai v. State of Madhya Pradesh, [1968] 3 SCR 662. [737-H] 65 2.1 It is true that section 64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act and sub-section (2) thereof provides that no such orders shall be called in question in any court of law. Even so, such a provision by itself is not, having regard to the two propositions stated in Dhulabhai's case decisive on the point of ouster of the Civil Court's jurisdiction and several other aspects such as the scheme of the Act, adequacy and sufficiency of remedies provided by it etc., will have to be considered to ascertain the precise intendment of the Legislature. In between the two sets of provisions dealing with grant of Ryotwari Patta to a Ryot (section II) and the grant thereof to a land-holder (Section 12-15) there is a difference of vital significance, with the result that different considerations may arise while deciding the issue of the ouster of Civil Court's jurisdiction to adjudicate upon the true nature or character of the concerned land. Approaching the question from this angle it will be seen in the first place that section 64-C itself in terms provides that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Act is "for the purposes of this Act" and not generally nor for any other purpose. [77 E-H] 2.2 The main object and purpose of the Act is to abolish all the estates of the intermediaries like Zamindars, Inamdars, Jagirdars or under-tenure holders etc. and to convert all land-holdings in such estates into ryotwari settlements which operation in revenue parlance means conversion of alienated lands into non-alienated lands, that is to say, to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purpose of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that process, if necessary, to deal with claims of occupants of lands, nature of the lands, etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. The object of granting a ryotwari patta is also to enable holder thereof to cultivate the land specified therein directly under the Government on payment to it of such assessment or cess that may be imposed on the land under section 16. [78A-D] 2.3 The expression "for the purposes of this Act" has been designedly used in the section which cannot be ignored but must be given cogent meaning and on a plain reading of the section which uses such expression it is clear that any order passed by the Settlement Officer either granting or refusing to grant a ryotwari patta to a ryot under section 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose. [78 E-G] 66 2.3 Secondly, the principle indicated in the second proposition enunciated in Dhulabhai's case requires that the statute: when it creates a special right or liability and provides for its determination, should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it, suggesting thereby that if there is no such provision it will be difficult to infer ouster of the Civil Court's jurisdiction to adjudicate all other questions pertaining to such right or liability. Since from the notified date all the estate vests in the Government free from encumbrances all the lands lying in such estate including private land of land-holder and ryoti land cultivated by a ryot would vest in the Government and the Act could be said to be creating a new right in favour of a land-holder (re: his private lands) and a ryot (re: ryoti land) by granting a ryotwari patta to them under sections 12 to 15 and section 11 respectively, and the Act provides for determination of such right by the Settlement Officer. [78 H; 79 A-B] 2.5 However, it cannot be said that the Act also provides for determination of all questions about such right by the Settlement Officer. Unlike in the case of an application for a ryotwari patta by a land-holder under section 12, 13 or 14 where an inquiry into the nature or character of the land and the history thereof is expressly directed to be undertaken by virtue of section 15 in the case of an application for a ryotwari patta by a ryot under section 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant. It is true that some inquiry is contemplated if section 11 is read with proviso to cl. (d) of section 3 but even then there is no provision directing inquiry for the ascertainment of the nature of the land, namely, whether it is a ryoti land or communal land but it is obvious that impliedly a decision on this aspect of the matter must be arrived at by the Settlement Officer before he passes his order on either granting or refusing to grant such patta. Obviously such decision rendered impliedly on this aspect of the matter will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an inquiry conducted for revenue purposes cannot be regarded as final or conclusive so as to constitute a bar to a Civil Court's jurisdiction adjudicating upon the same issue arising in a suit for injunction filed by a ryot on the basis of title and or long an uninterrupted possession. Since a fullfedged inquiry on the nature or character of land is provided for under section 15 in the case of an application by a land- holder the character of the Settlement Officer's decision on such issue may be different. [79 C-G] 2.6 Thirdly, having regard to the principle stated by the Supreme Court while enunciating the first proposition in Dhulabhai's case it is clear that even where the statute has given finality to the orders of the special tribunal the civil Court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the Civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Court's jurisdiction. Since under the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, the Settlement Officer has no power, 67 beyond the power to grant or refuse to grant the patta under section 11 read with section 3(d) of the Act on the materials placed before him, to do what Civil Court would normally do in a suit (like granting of injunction), ouster of Civil Court's jurisdiction cannot be implied simply because finality has been accorded to the Settlement Officer's order under section 64-C of the Act. [79 H; 80 A-B; E] Secretary of State v, Mask and Company, [1967] IA 222; and Dhulabhai v. State of Madhya Pradesh, [1968] 3 SCR 662 relied on. M. Chayana v. K. Narayana, [1979] 3 SCR 201; and O. Chenchulakshmamma v. D. Subramanya, [1980]1 SCR 1006 discussed and distinguished. JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 474 of 1971. From the Judgment and Order dated 7.6. 1968 of the Madras High Court in Second Appeal No. 1149 of 1962. WITH Civil Appeal No. 1633 of 1971. From the judgment and decree dated 17.6.69 of the Madras High Court in Second Appeal No. 1773 of 1964. T.S. Krishnamurthy and A.V. Rangam for the appellant. B. Parthasarthy for the Respondent in C.A. No. 4747/1. Gopal Snbramanium and Mrs. S. Balakrishnan for the Respondent in C.A. No. 1633 of 1971. The Judgment of the Court was delivered by TULZAPURKAR, J. These appeals raise a common question of law for our determination, namely, whether a Civil Court's jurisdiction to determine the nature of the land in respect whereof a Ryot has sought a Ryotwari Patta under s. 11 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act 1948 (for short the Act) is ousted or barred under s. 64-C of that Act ? The ma I facts giving rise to the question in both the appeals are almost similar and therefore, it will suffice if facts obtaining in Civil Appeal No. 474 of 1971 are alluded to in details. In this case one Ramalinga Samigal Madam, a religious Math through its trustee Sutha Chaitnya Swamigal filed a suit (O.S. No. 184 of 1959) in the Court of District Munsiff at Manamadurai for declaration of its title to the suit land admeasuring 3.55 acres being a portion of Survey No. 114 and for an injunction restraining the State of Tamil Nadu (Defendant-Appellant) from interfering with its possession and enjoyment of the same. The Plaintiff-Madam claimed title to the suit land on the basis of its long and uninterrupted possession since prior to 1938 as also under an Order of Assignment (Ex. A-1) dated 29.1.1938 issued in its favour by the Zamindar of the erstwhile Sivaganga Estate whereby the Kudi right (i.e. right to cultivate) in that land was granted to it subject to the payment of a nominal nuzzur of Re. 1 per acre and an annual rent of Re. 1 per acre beside cesses and a Teervapat Cowle Patta was directed to be issued in favour of its trustee Sutha Chaithya Swamigal. It appears that the plaintiff-Madam applied on 25.11.1953 for a Ryotwari Patta in respect of this land after the abolition of the Sivaganga Estate under the Act and the Additional Settlement Officer merely informed the Plaintiff-Madam that its petition would receive consideration when s. 11 inquiry would be taken up. But subsequently, without reference to the Plaintiff-Madam the Additional Settlement Officer passed an order (Ex. B-4) on 25.6.1954 that Survey No. 114 was not a ryoti land on the notified date but had been registered as a Poromboke (village communal land and, therefore, no one was entitled to Ryotwari Patta in respect of it. Aggrieved by the order the Plaintiff-Madam filed the suit for a declaration of its title and right to continue in possession and enjoyment of the suit land, subject to payment of Ryotwari or other case to be imposed by Government without any interference from the Government. The State of Tamil Nadu resisted the suit on merits by contending that the suit land was communal land and that the assignment or grant by the Zamindar in favour of plaintiff-Madam was invalid a well as by raising a technical plea that the decision of the Additional Settlements Officer that the suit land was Pmorboke and not ryoti land was final and the Civil Court's jurisdiction to decide that question was barred under s.64-C of the Act. The Trial Court as well as the Sub Judge in appeal accepted the plaintiff's case on merits by holding that the suit land was a ryoti land and that the assignment of Kudi right therein by the Zamindar in plaintiff's favour was valid; the technical plea of jurisdiction was negatived and the suit was decreed by granting the necessary declaration and injunction protecting plaintiff's possession and enjoyment of the suit land. In second appeal preferred by the State of Tamil Nadu to the High Court the lower Courts' decision on the merits of the plaintiff's claim was not challenged but the technical plea of the lack of jurisdiction on the part of the Civil Court in the light of s. 64-C of the Act was pressed. In view of the importance of the question the learned Single Judge referred the case to the Division Bench who negatived the contention and dismissed the appeal. The Division Bench took the view that there was no provision under s. 11 read with proviso cl. (d) of s. 3 of the Act for the ascertainment of the character of the land (whether it was ryoti land or communal land) and that the decision of Settlement Officer whether the land is ryoti or not is an incidental one merely for the purpose of granting the Ryotwari Patta and Civil Court's jurisdiction to adjudicate upon the nature of the land when that aspect is specifically put in issue, is not taken away under s. 64-C of the Act; and what is more the Division Bench further held that the plaintiff's suit was not for obtaining a ryotwari patta in its favour (which matter lay within the powers and jurisdiction of the Settlement Officer) but the suit was for injunction restraining the defendant from disturbing plaintiffs' possession and enjoyment of the suit land on the basis of its title and long and uninterrupted possession and such relief the Civil Court could obviously grant. In the other matter (Civil Appeal No. 1633 of 1971) also, after an adverse order had been passed by the Settlement Officer to the effect that the land in question was neither a ryoti land en Ramnad Zamindari nor the private property of erstwhile Zamindar, the plaintiffs filed a suit for declaration of their title to the suit land (based on a registered sale deed) and for injunction restraining the defendants from interfering with their possession. In that suit one of the issues raised pertained to the nature or character of the suit land, whether it was a ryoti land in the erstwhile Ramnad Zimindari which had been taken over under the Act or a Poromboke (communal property) and the plea was that the Civil Court had no jurisdiction to decide this question in view of s. 64-C. The Trial Court held that the suit property was Poromboke property and dismissed the suit but in appeal preferred by the plaintiffs the Sub-Judge held that it was ryoti land and plaintiffs' title and possession thereto had been proved but the suit was barred under s. 64-C of the Act and on this basis he confirmed the dismissal of the suit. The High Court in second appeal accepted the findings of the 1st Appellate Court on merits of the plaintiffs claim and on the question of Civil Court's jurisdiction to adjudicate upon the real nature or character of the suit land it followed the Division Bench decision in the earlier matter and held that the Civil Court had jurisdiction to decide that question and allowed the appeal. In the instant appeals before us the State of Tamil Nadu has challenged the aforesaid view of the High Court. Counsel for the appellants in both the appeals has relied upon s. 64-C of the Act and s. 11 of the Act read with the definition of the 'ryoti land' given in s. 3 (16)(a)(b) and (c) of the Tamil Nadu Estate Lands Act, 1908 for the purpose of contending that an order passed by the Settlement Officer in an enquiry under s. 11 of the Act to the effect that the land in question is not ryoti land but Poromboke property (communal land) and therefore no ryotwari patta could be issued in respect thereof to the applicant has been given finality under s. 64-C of the Act and the same cannot be questioned in any court of law and therefore the Civil Court's jurisdiction to adjudicate upon the nature or character of the land must be regarded as having been ousted or excluded by the Legislature. In order to appreciate this contention it will be necessary to set out the relevant provisions on which the reliance has been placed by the Counsel for appellants. Section 64-C of the Act runs thus: "64-C. Finality of orders passed under this Act.- (1) Any order passed by the Government or other authority under this Act in respect of matters to be determined for the purpose of this Act shall, subject only to any appeal or revision provided by or under this Act, be final. (2) No such order shall be liable to be questioned in any Court of law." Section 11 so far as is material runs thus: "11. Lands in which ryot is entitled to ryotwari patta.-Every ryoti in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of- (a) all ryoti lands which, immediately before the notified date, were properly included or ought to have been properly included in his holding and which are not either lanka lands or lands in respect of which a land- holder or some other person is entitled to a ryotwari patta under any other provision of this Act; and (b) ... ... ... ..." It is thus clear that before a ryotwari patta can be had under s. 11 (a) two conditions must be satisfied (a) the applicant must be a "ryot" in an estate and (b) the land in respect of which the patta is sought must be "ryoti land". The expression 'estate' has been defined in s. 2(3) of the Act to mean-a 'Zamandari' or an under-tenure or an inam estate. But the expressions 'ryot' and 'ryoti land' have not been defined in the Act but their definitions given in s. 3 of the Tamil Nadu Estate Lands Act, 1908 have been adopted for the purpose of the Act. Section 3(15) of the T.N. Estate Lands Act, 1908 defines 'ryot' thus: 'Ryot' means a person who holds for the purpose of agriculture ryoti land in an estate on condition of paying to the landholder the rent which is legally due upon it. Section 3 (16) defines 'Ryoti land' thus: 'Ryoti land' means cultivable lan 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 granted 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. The definition of ryoti land given above clearly shows that it means cultivable land in an estate other than private land but it also excludes Porombokes or village communal lands under cl. (b). It is thus clear that any cultivable land in an estate will not be 'ryoti land' if it falls under cl. (b). Relying upon the aforesaid provisions Counsel for the appellants urged before us that every refusal of a ryotwari patta by a Settlement Officer in an inquiry under s. 11 involves a decision on his part that either the applicant is not a ryot or the land is not ryoti land; in the instant cases it was the latter and such decision on the nature or character of the land has been given a finality under s.64-C which cannot be questioned in a Court of law and therefore the Civil Court's jurisdiction to adjudicate upon the nature or character of the suit lands must be held to have been excluded or ousted. Counsel therefore urged that the High Court's view deserves to be quashed. On the other hand Counsel for the respondents contended that it is well settled that exclusion of Civil Court's jurisdiction is not to be readily inferred and has to be provided for in express terms or by necessary implication. Counsel urged that there is no express exclusion and if regard is had to the scheme of the Act, particularly the provisions dealing with the grant of ryotwari patta to a Zamindar or landholder under ss. 12-15 in contrast with the grant thereof to a ryot under s. 11 it will appear clear that qua the former there may be such exclusion of Civil Court's jurisdiction but qua the latter none is intended. Counsel also urged us to accept the view taken by the High Court on the point. The principles bearing on the question as to when exclusion of the Civil Court's jurisdiction can be inferred have been indicated in several judicial pronouncements but we need refer to only two decisions. In Secretary of State v. Mask and Company,(1) the Privy Council at page 236 of the Report has observed thus: "It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure." In Dhulabhai v. State of Madhya Pradesh(2) Hidayatullah, C. J., speaking for the Court, on analysis of the various decisions cited before the Court expressing diverse views, culled out as many as 7 propositions; out of them the first two which are material for our purposes are these: "(1) Where the statute gives a finality to the orders of the special tribunal the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not." It is obvious that the question raised before us whether the civil court's jurisdiction to adjudicate upon the nature or character of the land in question has been excluded or ousted will have to be decided by reference to these principles. It was fairly conceded by Counsel for the appellants that there is nothing in the Act which expressly bars the civil court's jurisdiction but such exclusion has to inferred by be clear implication in view of s.64-C which accords finality to any order that may be passed by the Government or other authority under the Act in respect of matters to be determined for the purposes of the Act, subject only to any appeal or revision provided by or under the Act and also because the section goes on to provide that no such order shall be liable to be questioned in any court of law. Therefore, an examination of the scheme of the Act and the relevant provisions thereof including s. 64-C becomes necessary before such exclusion of civil court's jurisdiction by necessary implication can be inferred. The Act, as its Preamble indicates was put on the statute book with a view "to provide for the repeal of the Permanent Settlement, the acquisition of the rights of the land-holders in permanently settled and certain other estates in the State of Tamil Nadu and the introduction of the ryotwari settlement in such estates"; in other words the avowed object or purpose of the Act was to repeal the permanent settlement and acquire the rights of the land- holders i.e. all intermediaries like Zamindars, Jagirdars, under-tenure holders etc. on payment of compensation and convert the land holdings in such estates into Ryotwari settlements. Section 3, which seeks to abolish all the estates under the Permanent Settlement, provides that with effect on and from the notified date (which in relation to an estate means the date on which the provision of the Act shall come into force in that estate) the entire estate (including all communal lands, porombokes, other non-ryoti lands, waste lands, pasture lands, lanka lands, forest mines and minerals, quarries, rivers and streams, tanks, ooranies (including private tanks and ooranies) and irrigation works, fisheries and ferries shall stand transferred to the Government and vest in them free from all encumbrances and the T.N. Revenue Recovery Act, 1864 and the T.N. Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate; and under s. 3(d) Government has been given the right to take possession forthwith of such estate. However. such vesting of the entire estate in the Government on and from the notified date and the Government's right to recover possession thereof are qualified by the proviso thereto whereunder the possession (occupancy right) of a ryot in ryoti land and of a land-holder of his private land in the estate is protected. Section 3(d) together with the proviso is material and it runs thus: "3(d) The Government may, after removing any obstruction that may be offered forthwith take possession of the estate, and all accounts, registers, pattas, muchilikas, maps, plans and other documents relating to the estate which the Government may require for the administration thereof: Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta- (i) if such person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta; (ii) if such person is land-holder, pending the decision of the Settlement Officer and the Tribunal on appeal, if any, to it, as to whether he is actually entitled to such patta." The topic of grant of ryotwari pattas to a ryot in respect of ryoti land in an estate and to a land-holder in respect of his private lands in such estate is dealt with by ss. 11 and 12 to 15. Section 11 which deals with the grant of a Ryotwari Patta to a Ryot in ryoti land, in so far as is material, has already been quoted above. Sections 12, 13 and 14 deal with the grant of a Ryotwari Patta to a land-holder in respect of his private lands in Zamindari estate, inami estate, and under-tenure estate respectively and s. 15which follows upon ss. 12, 13 and 14 and deals with the aspect of determination the nature of character of the lands in which the land-holder is to be granted ryotwari patta is very material and it runs thus: "15 Determination of lands in which the land- holder is entitled to ryotwari patta under foregoing provisions.- (1) The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under section 12, 13 or 14 as the case may be, and decide in respect of which lands the claim should be allowed. (2)(a) Against a decision of the Settlement Officer under sub-section (1), the Government may, within one year from the commencement of the Tamil Nadu Estates (Abolition and Conversion) into Ryotwari) Amendment Act, 1954, or from the date of the decision, which-ever is later; and any person aggrieved by such decision may, within two months from the said date, appeal to the Tribunal. Provided that the Tribunal may, in its discretion, allow further time not exceeding six months for the filing of any such appeal: Provided further that the Tribunal may, in its discretion, entertain, an appeal by the Government at any time if it appears to the Tribunal that the decision of the Settlement Officer was vitiated by fraud or by the mistake of fact. (b) The decision of the Tribunal on any such appeal shall be final and not be liable to be questioned in any Court of Law." Section 16 deals with the liability to pay assessment, etc. for lands held under Ryotwari Pattas to the Government and it runs thus: "16. Liability to pay assessment, etc. to Government.-(1) Every person, whether a land-holder or a ryot, who becomes entitled to a ryotwari patta under this Act in respect of any land shall (for each fasli year commencing with the falsi year in which the estate is notified) be liable to pay to the Government such assessment, as may be lawfully imposed on the land. (2) If in respect of any such land, the ryot was liable immediately before the notified date to make any payment to the landholder otherwise than by way of rent, whether periodically or not, the ryot shall continue to make such payments as accrue on or after that to the Government." It will be seen that elaborate provisions have been made in the enactment to carry out the main objective and other purposes of the Act and ss. 4 to 8 deal with constituting authorities like Tribunals and Board of Revenue and appointing various officers such as a Director of Settlement Officers and Managers of Estates etc. to carry out functions and duties assigned to them under the Act. It will be pertinent to observe that in between the provisions dealing with grant of Ryotwari Patta to a Ryot (section 11) and the grant thereof to a land-holder (ss. 12 to 15) there is a difference of vital significance; whereas in the case of an application for a Ryotwari Patta by a land-holder under s. 12, 13or 14, s. 15 in terms enjoins a duty upon the Settlement Officer to examine the nature and character of the land and history thereof and then decide whether the claim of the land-holder should be allowed or not, in the case of an application for a ryotwari patta by a ryot under s. 11 there is no similar express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant. Even if s. 11 is read with the proviso to cl. (d) of s. 3, whereunder some inquiry is contemplated before granting a Ryotwari Patta to a ryot there is no provision directing an inquiry for the ascertainment of the character of the land, namely, whether it is ryoti land or communal land and the Settlement Officer's decision on this aspect will be incidental to and impliedly rendered only for the purpose of granting or refusing to grant the Ryotwari Patta. There is also this further difference that the Settlement Officer's decision on the nature or character of the land under s. 15 is subject to a regular appeal to the Tribunal under sub-s. (2) thereof while the Settlement Officer's decision to grant or refuse to grant a Patta to a ryot under s. 11 is subject to be revised by the Director of Settlement under s. 5(2) as also by the Board of Revenue under s. 7(c) and the relevant Rules in that behalf and the decision of the Director of Settlement in revision is further revisable by the Board of Revenue under s. 7(d) of the Act. Then comes s. 64-C which accords finality to the orders passed by the Government or other authorities under the Act which we have earlier quoted in extenso. Now turning to the question raised in these appeals for our determination (it is true that s. 64-C of the Act gives finality to the orders passed by the Government or other authorities in respect of the matters to be determined by them under the Act and sub-s. (2) thereof provides that no such orders shall be called in question in any court of law. Even so, such a provision by itself is not, having regard to the two propositions quoted above from Dhulabhai's case (supra), decisive on the point of ouster of the Civil Court's jurisdiction and several other aspects like the scheme of the Act, adequacy and sufficiency of remedies provided by it etc., will have to be considered to ascertain the precise intendment of the Legislature. Further, having regard to the vital difference indicated above, in between the two sets of provisions dealing with grant of ryotwari pattas to landholders on the one hand and ryots on the other different considerations may arise while deciding the issue of the ouster of Civil Court's jurisdiction to adjudicate upon the true nature of character of the concerned land. Approaching the question from this angle it will be seen in the first place that s. 64-C itself in terms provides that the finality to the orders passed by the authorities in respect of the matters to be determined by them under the Act is "for the purposes of this Act" and not generally nor for any other purpose. As stated earlier the main object and purpose of the Act is to abolish all the estates of the intermediaries like Zamindars, Inamdars, Jagirdars or under-tenure holders etc. and to convert all land-holdings in such estates into ryotwari settlements which operation in revenue parlance means conversion of alienated lands into non-alienated lands, that is to say, to deprive the intermediaries of their right to collect all the revenues in respect of such lands and vesting the same back in the Government. The enactment and its several provisions are thus intended to serve the revenue purposes of the Government, by way of securing to the Government its sovereign right to collect all the revenues from all the lands and to facilitate the recovery thereof by the Government and in that process, if necessary, to deal with claims of occupants of lands, nature of the lands, etc. only incidentally in a summary manner and that too for identifying and registering persons in the revenue records from whom such recovery of revenue is to be made. The object of granting a ryotwari patta is also to enable holder thereof to cultivate the land specified therein directly under the Government on payment to it of such assessment or cess that may be lawfully imposed on the land. Section 16 is very clear in this behalf which imposes the liability to pay such ryotwari or other assessment imposed upon the land to the Government by the patta-holder. The expression "for the purposes of this Act" has been designedly used in the section which cannot be ignored but must be given cogent meaning and on a plain reading of the section which uses such expression it is clear that any order passed by the Settlement Officer either granting or refusing to grant a ryotwari patta to a ryot under s. 11 of the Act must be regarded as having been passed to achieve the purposes of the Act, namely, revenue purposes, that is to say for fastening the liability on him to pay the assessment or other dues and to facilitate the recovery of such revenue from him by the Government; and therefore any decision impliedly rendered on the aspect of nature or character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose. Secondly, the principle indicated in the second proposition enunciated in Dhulabhai's case (supra) requires that the statute, when it creates a special right or liability and provides for its determination, should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it, suggesting thereby that if there is no such provision it will be difficult to infer ouster of the Civil Court's jurisdiction to adjudicate all other questions pertaining to such right or liability. Since from the notified date all the estate vests in the Government free from encumbrances) it must be held that (all the lands lying in such estate including private land of land-holder and ryoti land cultivated by a ryot would vest in the Government and the Act could be said to be creating a new right in favour of a land-holder (re: his private lands) and a ryot (re: ryoti land) by granting a ryotwari patta to them under ss. 12 to 15 and s. 11 respectively, and the Act provides for determination of such right by the Settlement Officer. Question is whether the Act also provides for determination of all questions about such right by the Settlement Officer ? On this aspect, as has been indicated earlier (unlike in the case of an application for a ryotwari patta by a land- holder under s. 12,13 or 14 where an inquiry into the nature or character of the land and the history thereof is expressly directed to be undertaken by virtue of s. 15 in the case of an application for a ryotwari patta by a ryot under s. 11 there is no express provision for any inquiry into the nature or character of the land before granting or refusing to grant such patta to the applicant. It is true that some inquiry is contemplated if s. 11 is read with proviso to cl. (d) of s. 3 but even then there is no provision directing inquiry for the ascertainment of the nature of the land, namely, whether it is a ryoti land or communal land but it is obvious that impliedly a decision on this aspect of the matter must be arrived at the Settlement Officer before he passes his order on either granting or refusing to grant such patta. Obviously such decision rendered impliedly on this aspect of the matter will be an incidental one and arrived at in the summary manner only for the purpose of granting or refusing to grant the patta. A summary decision of this type in an inquiry conducted for revenue purposes cannot be regarded as final or conclusive so as to constitute a bar to a Civil Court's jurisdiction adjudicating upon the same issue arising in a suit for injunction filed by a ryot on the basis of title and/or long and uninterrupted possession. Since a fullfedged inquiry on the nature or character of land is provided for under s. 15 in the case of an application by a land-holder the character of the Settlement Officer's decision on such issue may be different but that question is not before us. Thirdly, having regard to the principle stated by this Court while enunciating the first proposition in Dhulabhai's case (supra) it is clear that even where the statute has given finality to the orders of the special tribunal the civil court's jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which Civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or infer exclusion of Civil Court's jurisdiction. Now take the case of an applicant who has applied for a ryotwari patta under s. 11 staking his claim thereto on the basis of his long and uninterrupted possession of the ryoti land but the Settlement Officer on materials before him is not satisfied that the land in question is ryoti land; in that case he will refuse the patta to the applicant. But can he, even after the refusal of the patta, protect the applicant's long and uninterrupted possession against the Government's interference ? Obviously, he cannot, for it lies within his power and jurisdiction merely to grant or refuse to grant the patta on the basis of materials placed before him. But such a person even after the refusal of the ryotwari patta would be entitled to protect his possessory title and long enjoyment of the land and seek an injunction preventing Government's interference otherwise than in due course of law and surely before granting such relief the Civil Court may have to adjudicate upon the real nature of character of the land if the same is put in issue. In other words since the Settlement Officer has no power to do what Civil Court would normally do in a suit it is difficult to imply ouster of Civil Court's jurisdiction simply because finality has been accorded to the Settlement Officer's order under s. 64- C of the Act. Counsel for the appellants invited our attention to two decisions of this Court one in M. Chayana v. K. Narayana,(1) under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948 and the other in O. Chenchulakshmamma v. D. Subramanya(2) under the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948. It may be stated that both the enactments (the A.P. Act as well as the Madras Act) contain substantially identical provisions and in particular s. 56 with which the Court was concerned in the two cases is in identical language. Sub-sec (1) of sec. 56 provides that "whereafter an estate is notified, a dispute arises as to (a) whether any rent due from a ryot for any Fasli year is in arrear or (b) what amount of rent is in arrear or (c) who the lawful ryot in respect of any holding is, the dispute shall be decided by the Settlement Officer". Sub- sec. (2) provides for an appeal to the tribunal against the decision of the Settlement Officer and the tribunal's decision in appeal has been rendered final and not liable to be questioned in a Court of law. In both the cases this Court has taken the view that a dispute between two rival claimants as to who is the lawful ryot entitled to the patta of the holding in question had been exclusively left to the determination of the Settlement Officer under that provision and since finality has been accorded to such determination which is not liable to be called in question in any Court of law the Civil Court's jurisdiction to adjudicate upon such dispute has been excluded. Relying upon these decisions, counsel for the appellant urged before us that the civil court's jurisdiction to adjudicate upon the issue of real nature or character of the land should be held to have been excluded under s. 64-C of the Act which also accords finality to the Settlement Officer's order refusing to grant the ryotwari patta to a ryot unders. 11 of the Act on the ground that the land in question is not ryoti land. It is not possible to accept this contention for the two decisions are clearly distinguishable. In the first place s. 56 with which the Court was concerned in those cases does not contain the words "for the purposes of the Act" which occur in s. 64-C; and presumably in view of the absence of those words in the section this Court in M. Chayana's case observed that there was no warrant for taking the view that the Settlement Officer's decision under s. 56 (1) (c) on the question as to who was the lawful ryot of holding was only for the purpose of indentifying the person liable to pay the arrear of rent. Secondly under s. 56 (1)(c) the Settlement Officer is expressly required to make an inquiry into and decide the question as to who is a lawful ryot of the holding between two rival claimants whereas as stated earlier there is no express provision directing an inquiry into the question of the real nature or character of the land while considering a ryot's application for a patta under s. 11 read with the proviso to s. 3(d). In other words, the two provisions are dissimilar. Moreover, it may be pointed out that so far as the Madras Act is concerned by Madras Act 34 of 1958 s. 56 itself has been repealed with effect from 27th December 1958 and s. 9(2) of the repealing Act (No. 34 of 1958) has gone on to provide that all proceeding pending before the Settlement Officer or Tribunal under that section shall abate. As a result of such repeal the Madras High Court in two decisions, Krishna Swami Thevar's case(1) and A.R. Sanjeevi Naicker's(2) case has held that now there is no machinery available under the Madras Act to have a determination of the dispute between two rival claimants regarding their title as to who would be entitled to the patta and s. 11 does not contain machinery for deciding disputed questions of title. Whatever be the position in regard to dispute concerning rival claims or titles, the ratio of the two decisions of this Court on which counsel placed reliance is inapplicable to the issue raised in these appeals for our determination. Having regard to the above discussion we confirm the High Court's view that the Civil Court's jurisdiction to adjudicate on the real nature of the land is not ousted under s. 64-C by reason of the Settlement Officer's decision to grant or refuse to grant a patta under s. 11 read with the proviso to s. 3(d) of the Act. The appeals are, therefore, dismissed but with no costs. S.R. Appeals dismissed. Supreme Court of India V.T.S. Thyagasundaradoss Thevar ... vs V.T.S. Sevuga Pandia Thevar And ... on 25 February, 1965 Equivalent citations: AIR 1965 SC 1730 Author: K S Rao Bench: K S Shah, R Bachawat JUDGMENT K. Subba Rao, J. 1. V. T. S. Sevuga Pandia Thevar, hereinafter called the Zamindar, was the Zamindar of the erstwhile Estate of Seithur, an impartible Estate, in Ramanathapuram District in the State of Madras. Originally this Zamindari was an ancestral impartible Estate and it continued to be so in the hands of the Zamindar's father, Sundaradoss Thevar. In the year 1895, the said Sundaradoss Thevar executed, a will whereunder he gave this property to his son, the Zamindar. The Government of Madras, in exercise of the powers conferred on it under the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948, hereinafter called the Act, issued a notification dated March 8, 1954, abolishing the said Zamindari. Thereafter, under Section 54-A of the Act the State Government deposited a sum of Rs. 68,589 with the Madras Estates Abolition Tribunal, Madurai, hereinafter called the Tribunal. On January 17, 1955, the Zamindar filed before the Tribunal a claim for the recovery of the said amount under Section 42 of the Act on the ground that the said Estate was his separate property and, therefore, he was entitled to get the entire amount of compensation. His exclusive, claim for the entire amount was resisted by his sons and others entitled to maintenance, inter alia, on the ground that the Estate was an ancestral impartible Estate and, therefore, they were also entitled to share in the compensation or to get maintenance, as the ease may be, under Section 45 of the Act. The Tribunal held that the said Estate was a joint family property and, therefore, the persons mentioned in Section 45 of the Act were also entitled to a share in the compensation in the manner prescribed thereunder. Against the order of the Tribunal the Zamindar preferred an appeal to the High Court of Judicature at Madras making all the objectors respondents to that appeal. That appeal was heard by a Division Bench of the High Court consisting of Rajagopalan and Balakrishna Ayyar, JJ. It held that the said Estate was not an ancestral impartible Estate and that the Zamindar was exclusively entitled to the compensation deposited with the Tribunal. The objectors, by special leave, have preferred the present appeal to this Court. 2. Mr. A. V. Viswanatha Sastry, learned counsel for the appellants contended that the Seithur Estate was an ancestral impartible Estate and, therefore, the Tribunal rightly distributed the compensation between the appellants and the Zamindar in terms of Section 45 of the Act. He elaborated this argument under different heads, which we shall consider seriatim. 3. The first contention of the learned counsel is that under the will Sundaradoss Thevar did not bequeath the said Estate to his son the Zamindar, but the will only contained a recital as to the existence of the said Estate and the fact that it would devolve alter his death on his next heir, namely, the Zamindar. It is not disputed that on the date the will was executed the holder of an ancestral impartible Estate could validly bequeath it to whomsoever he liked. The answer to the question raised, therefore, depends purely on the construction of the will 4. The scheme of the will may briefly be slated thus: The testator at the time of his death owned an ancestral impartible Estate called Seithur Zamin, a self-acquired zamin called the Elumalai Zamin and other movable and immovable properties. He had certain debts and other obligations to discharge; he had to provide, after his death, for the maintenance of his mother, son, daughter, nephew and others. He gave A Schedule property, i.e., the Seithur Zamin, to his son, the Zamindar; B Schedule property, i.e., Elumalai Zamin, to his nephew, C Schedule property, to his daughter; D Schedule property, to Challam, who served his wives faithfully, and E Schedule property to Muthiah Bhagavathar. In addition he made other bequests, directed his debts to be paid and other obligations discharged out of his entire Estate. He appointed an Executor to carry out the terms of his will. 5. Strong reliance is placed by learned counsel for the appellants on the preamble to the will, and, emphasizing on the words "After us there is our only son Sevuga Pandia Dorai, aged 11 years, who is entitled to get all our properties as the heir and at present there is none excepting the said person", an argument is advanced that the said words indicate the intention of the testator that the Estate should go to his son as his heir. But the preamble was not the dispositive clause: it only gave the financial position of the testator, the persons to be provided for and declared his right to dispose of the property in favour of the persons mentioned in the will. Consistent with the preamble, the heading of the clauses making the bequests stated "The arrangements made hereby are as follows". What follows were the arrangements made by him and not what the law of inheritance brought about. Under the will the testator bequeathed A, B, C, D and E Schedule properties to different persons and the clauses making the disposition were couched in the same terminology. Though different words were used in the document as translated, both the learned counsel, who know Tamil, agreed that the same Tamil word was used for bequeathing the different properties to different persons. What is more, whenever the testator wanted to give an absolute Estate to a legatee he used the same words of inheritance such as "shall enjoy hereditarily from son to grandson and so on in succession." It is a well settled rule of construction that the same words used in a document shall be given the same meaning unless there is a clear intention to the contrary. It is not disputed that in the case of C, D and E Schedules the said words of disposition conveyed an absolute interest to the legatees mentioned therein. If that be so, we cannot without violating the said rule of construction and without doing violence to the language used give a different meaning to the clause containing the disposition of the A Schedule property in favour of the Zamindar. Under the relevant clause the testator said "Our son Sevuga Pandia Dorai Avergal shall take the properties set out in A Schedule herein after our lifetime and hold and enjoy the same with absolute rights and from son to grandson and so on in succession." If the testator intended to bequeath an absolute interest to the legatee, he could not have done so in words clearer than the said words. We find it impossible to construe the said words to mean that the testator was only recognizing the rights of the son to the Estate if he died intestate: that will be rewriting the will. The appointment of an Executor to administer all the properties, including the A Schedule property, is another indication that the said property was also subject to a bequest. The appointment of an Executor would not have arisen in respect of the A Schedule property if the said property had not been bequeathed under the will. Further, the testator directed all the debts due by him to be paid out of his entire property including the A Schedule property. If the Zamindar was taking the impartible Estate as an heir, he would take it free from the liabilities not binding on the Estate. He was taking it subject to the liabilities not binding on the Estate, because he was taking it as a legatee and not as an heir. For instance, in the matter of purchase of Elumalai Zamin, which is admitted to be not a part of the impartible Estate, the testator borrowed money from others; he directed the Executor to discharge the said debt from and out of the A Schedule property and the assets relating to the same irrespective of the property that might have been secured in respect of that debt. In respect of other obligations he directed them to be discharged from and out of the entire property bequeathed, including the A Schedule property. For instance, he directed the Executor to spend from the said two zamins amounts necessary to meet the expenses for performing the marriage of his younger brother's son, Muthuswami Pandian, for palace construction and repair and also for making jewels for the wife of Muthuswami Pandian. He also directed him to spend from both the zamins the amounts necessary for performing and conducting festivals. What is more, some items of properties forming part of the impartible Estate, i.e., A Schedule property, were bequeathed to others. The following 3 items prima facie formed part of the Seithur Zamin; (1) a palace in the Seithur Zamin Estate; (2) pannai lands in the Estate purchased from Dalava Madaliar; and (3) Pannai lands in Seithur Zamin in Devadanamkulam village; and pannai lands in Kooraipadugai punja in Pallathavu. Though the palace and pannai lands formed part of the impartible Estate, under the will they were bequeathed to Muthuswami Pandian, Muthathal and others. Under the will the Zamindar got not only the impartible Estate, i.e., the A Schedule property, but also properties other than B, C, D and E Schedules The Estate as well as other properties were bequeathed to him under the same clause couched in the same language. Therefore, it cannot be said that in respect of the A Schedule property there was no bequest and in respect of other properties there was a bequest. Such a construction will introduce inconsistency and incongruity in the dispositive clause. Briefly stated, the testator did not make any distinction in the matter of bequests between the impartible Estate and his other properties. He divided all his properties into A, B, C, D and E Schedules. He asserted his absolute right to dispose of them. Having regard to the circumstances obtaining at the time of executing the will, by using appropriate words he bequeathed them in the manner described by him in the various clauses of the will. He gave to his only son most of the A Schedule property and also some other properties. A small part of the A Schedule property was bequeathed by him to others also. The A Schedule property and other properties were made equally liable to discharge some of the specified debts. There was a clear bequest of the A Schedule property to the Zamindar, subject to the obligations mentioned above and it is impossible to read into the will the contention of the learned counsel that, though in terms it was a bequest, in fact, having regard to the preamble, it was only a recognition of the Zamindar's right to succeed to the Estate. To accept the argument of the appellants is to read into the will something which is not there. Obviously that cannot be done. 6. In the context of this contention strong reliance is placed upon a judgment of the Judicial Committee in Shyam Pratap Singh v. Collector of Etawah, There, a holder of an impartible Estate executed a will, the relevant part whereof read thus: Today K has given his son M to me in adoption and I have taken him in adoption. After my death, my adopted son shall be the "gaddi-nashin" and the owner of my entire movable and immovable property. After my death he shall, like myself, have all the powers. M is yet a minor: therefore, during his minority, my mother, B who was my guardian during my minority and who managed the entire estate very well, shall remain the guardian of my adopted son and shall manage the entire estate. I have, therefore executed this will in a sound state of body and mind and after full deliberation On a construction of the said will the judicial Committee held that taking the document as a whole the only operative part of it was the appointment of the guardian and the rest of it was narrative; and even on the assumption that the document could be construed as a gift of the property to M, their Lordships held that it was not effective to change its character from that of an impartible Raj governed by the rule of lineal primogeniture inasmuch as the testator had not broken the line of succession but on the contrary had given the property to the person who would succeed under the rule of lineal primogeniture. It is a well settled principle that a particular will shall be construed on its own terms. Except perhaps when the terms of two wills are exactly or practically the same, it is not possible even to derive any help from the construction of one will in construing the other will. The will we have extracted above differs in many material particulars from the will which is now under our scrutiny. That apart, the judgment of the Privy Council discloses that the parties who appeared before it were not interested to argue that the will contained a bequest. The following observation of the Privy Council makes that clear: "The first question which arises for decision on these consolidated appeals is whether the view taken by the High Court as to the construction and effect of the alleged will of Raja Hukam is correct. Upon this question the plaintiff and defendant have joined forces in attacking the decision of the High Court, and no argument has been advanced before the Board in support of the decision, since Rani Baisni is not represented. Their Lordships can only decide the question as between the parties to this appeal. Rani Baisni, the only party who was interested to contend that the finding of the High Court that there was a bequest in favour of the adopted son was not represented before the Privy Council. Further, the terms of the will as extracted above did not contain any clause of clear disposition as in the will in the present appeal. The words used therein were susceptible of the construction accepted by the Judicial Committee, namely, that it was only an indication of the testator of the destination of the property in the event of his death. The decision, therefore, does not help the appellants. We, therefore, hold on a fair reading of the express words used in the will that the testator in clear and unambiguous terms made a bequest of the A Schedule property to the Zamindar, his only son. 7. The next argument of the learned counsel for the appellants may be stated thus: Even if there was a bequest, on a true construction of the recitals in the will it should be held that the bequest was impressed with the incidents of an ancestral Estate; that is to say, the legatee had to take it as a joint family property in which his sons had an interest. To put it in other words, it is said that in the hands of the legatee the Estate was a joint family impartible Estate. We find it difficult to appreciate this argument. We have already held in dealing with the first point that under the will there was a clear bequest of the Estate in favour of the Zamindar. We have also expressed the view that the preamble to the will had only described the factual position at the time the will was executed and that it had no impact on the dispositive clause. The relevant clauses of the will making the bequest do not even remotely suggest the idea now canvassed before us. In view of the similarity of the clauses of disposition used in regard to different bequests, all of them should be construed in the same way. If so construed, it cannot be suggested that only in the case of the Zamindar a joint family Estate was given, whereas in the case of others an absolute Estate was given. In terms of the bequest, all of them got a similar Estate, namely, an absolute Estate in respect of the properties bequeathed to them. 8. Can it be said that the nature of the Estate leads to the legal position that the legatee of the said Estate only got a joint family Estate, though under the express words of the bequest he got an absolute Estate ? As the law then stood, a holder of an ancestral impartible Estate could alienate the same in favour of a third party by a deed inter vivos or under a will: in either case the alienee or legatee, as the case may be, got an absolute interest therein. The holder's son could not interdict the said alienation or bequest as he had no right by birth therein. The son had only a right to take the ancestral Estate by survivorship in case the father died intestate. The exercise of the right by a father to alienate destroyed his son's right to take it by survivorship. If one right was exercised, the) other was lost. As the Zamindar got the Estate as a legatee and not as a member of a joint Hindu family by right of survivorship, he got it absolutely in his own right under the terms of the will. 9. The question may be looked at from a different angle. The testator, as we have interpreted his will, conferred an absolute interest in the impartible Estate on the Zamindar. How did that absolute Estate become a joint family Estate in the hands of the legatee ? An absolute Estate so conferred could have been limited by law operating on the bequest or by some inherent disqualification of the legatee to receive an absolute bequest. None of the said two circumstances existed in the present case. 10. The argument of the learned counsel is presumably inspired by the judgment of this Court in C. N. Arunachala Mudaliar v. C. A. Muruganatha Mudaliar. . In that case a father made a gift of his self-acquired property to his son. It was contended that the property was an ancestral one in the hands of the son and, therefore, the latter's sons had a right by birth in the said property. Rejecting that contention, Mukherjea, J., as he then was, speaking for the Court, observed: "The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property on the death of the grandfather or receives it, by partition, made by the grandfather himself during his life-time. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well." Later on the learned Judge expressed the same idea in a happier language thus: "When, however, he makes a gift which is only an act of bounty, he is unfettered in the exercise of his discretion by any rule or dictate of law." On the said legal basis the learned Judge concluded thus: "As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family." On a construction of the document in that case, the learned Judge held that the gift was given exclusively to the donee and not for the benefit of his branch of the family. The said judgment decided two points, namely, (i) if a son gets the property of his father by inheritance or in partition, it being ancestral property under Hindu law, he becomes a co-owner with his son or sons; and (ii) the father can bequeath his self-acquired property to his son or sons absolutely or to the branch of his or their family. The first depends upon Hindu law and the second on the nature of the bequest made. We have already held on a construction of the will in question that the father bequeathed the property, which he was entitled to do under law, absolutely to the Zamindar and not to the branch of his family. As the Zamindar obtained his father's property by way of bequest and not by virtue of his right as a son or descendant there is no scope for invoking Hindu law to hold that in his hands the said property became the joint family property. We, therefore, hold that in the hands of the Zamindar the impartible Estate was his self-acquired property. 11. The next contention is that though under the will the Zamindar did not take the impartible Estate as a joint family property it had become one by reason of Section 4 of the Madras Impartible Estates' Act II of 1904. The said Act came into force on February 8, 1904. To appreciate this contention it will be necessary to know briefly the incidents of an impartible Estate before the said Act was enacted. The law is so well settled that it does not call for copious citation or discussion. It would be enough if an important decision of the Privy Council, where all the incidents are collected, is noticed; that is the decision in Shiba Prasad Singh v. Rani Prayag Kumari Debi There, Sir Dinshah Mulla, speaking for the Board, after considering the case-law on the subject, summarized the legal position thus: "Impartibility is essentially a creature of customs. In the case of ordinary joint family property. the members of the family have (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible Estate, though ancestral, from the very nature of the Estate. The second is incompatible with the custom of impartibility, as laid down in Sartaj Kuari v. Deoraj Kuari, 15 Ind App 5 (PC) and the First Pittapur Case, Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards, 26 Ind App 83 (PC); and so also the third as held in the Second Pittapur Case, Sri Raja Rao Venkata Mahipati Gangadara Rama Rao Bahadur v. Raja of Pittapur, 45 Ind App 148: (AIR 1918 PC 81). To this extent the general law of the Mitakshara has been superseded by custom, and the impartible Estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains, and this is what was held in Baijnath Prasad Singh v. Tej Bali Singh, 48 Ind App 195: (AIR 1921 PC 62). To this extent the Estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquired by birth in joint family property no longer exist, the birth-right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's Estate. It is a right which is capable of being renounced and surrendered. Such being their Lordships' view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate." This is a full statement of the law on the subject. Though some observations made by the Privy Council in a later decision in Collector of Gorakhpur v. Ram Sundar Mal threw some doubt on some aspects of the legal position stated supra, the subsequent decisions of the Privy Council clarified the position and reaffirmed the law as enunciated in Shiba Prasad Singh's Case see Commr. of Income-tax, Punjab v. Krishna Kishore It is, therefore, dear that an impartible Estate could be an ancestral property or a self-acquired property of the holder of the said Estate. Even if it was an ancestral Estate, the sons of the holder had no right to restrain alienations by the head of the family even without necessity, for the said right was incompatible with the custom of impartibility as laid down in Sartaj Kuari's Case 15 Ind App 5 (PC) and the first Pittapur Case, 26 Ind App 83 (PC). The result was that as the law then stood the head of an impartible Estate could alienate the properly, whether it was ancestral or self-acquired. Presumably to preserve impartible Estates, the Madras Impartible Estates Act II of 1904 was passed and it became law on February 8, 1904. The long title of the Act reads: "An Act to declare that certain Estates are impartible and that the proprietors of such Estates cannot exercise unrestricted powers of alienation in respect thereof" "Impartible Estate" is defined to mean an Estate descendible to a single heir and subject to the other incidents of impartible Estates in Southern India. Section 3 says that the Estates included in the Schedule shall be deemed to be impartible Estates. In the Schedule Seithur Estate is included as one of the Estates to which the Madras Act II of 1904 applied. Section 4, on which reliance is placed by the learned counsel for the appellants reads thus: "(1) The proprietor of an impartible Estate shall be incapable of alienating or binding by his debts, such Estate or any part thereof beyond his own lifetime unless the alienation shall be made, or the debt incurred, under circumstances which would entitle the managing member of a joint Hindu family, not being the father or grandfather of the other co-parceners, to make an alienation of the joint property, or to incur a debt binding on the shares of the other coparceners independently of their consent." This sub-section in terms limits the unrestricted power to incur debts or alienate properties possessed by an impartible estate-holder in respect of his Estate. The limits of his power are defined by reference to the power of a managing member of a joint Hindu family, not being the father or grandfather of the other coparceners, to make an alienation of the joint family property or to incur a debt. His power in regard to alienations and debts is equated to that of a manager of a joint Hindu family. While an impartible estate-holder before the Act could alienate the Estate or a part thereof or incur debts binding on the Estate without any restrictions on his power, after the Act he can only do so under the circumstances where a manager of a Hindu joint family can do so. But it is not possible to hold that the sub-section by its own force converted a self-acquired impartible Estate before the Act into a joint family-Estate thereafter. The words of the sub-section do not bear any such contention. If so, it follows that though the Seithur Zamin was an impartible Estate under Madras Act II of 1904, it continued to, be a self-acquired property of the Zamindar. 12. It is then contended that the Zamindar had voluntarily thrown the impartible Estate into the common stock with the intention of abandoning all his separate claims upon it. Mr. Vedantachari, learned counsel for the Zamindar, argued that there was no scope for the application of the said doctrine of blending in the case of an impartible Estate, as the other members of the family had no present interest in the said property. It is not necessary to express our opinion on this question, as the Tribunal as well as the High Court, on a consideration of the evidence placed before them, came to the conclusion that the evidence adduced for that purpose was wholly insufficient to sustain a finding of blending. The finding is one of fact and no exceptional circumstances have been placed before us to make us interfere with that finding. 13. If the impartible Estate was the self-acquired property of the Zamindar, the next question is whether the appellants would be entitled to share in the compensation under the provisions of the Act. The Act and the Rules made thereunder provide for the deposit of the compensation by the State with the Tribunal, for a procedure to enable the claimants to apply to the said Tribunal for the compensation and for the manner of ascertaining and distributing the compensation among them in accordance with the value of their respective interests in the Estate. The material sections then proceed to state thus: Section 44. (2) The value of those interests shall be ascertained- (a) in the case of the impartible Estates referred to in Section 45, in accordance with the provisions contained in that section and in such rules, not inconsistent with that section, as may be made by the Government in this behalf; and (b) in the case of other Estates, in accordance with such rules as may be made by the Government in this behalf. Section 45. (1) In the case of an impartible Estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply. (2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group:-- (a) the principal landholder and his legitimate son grandsons and great-grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great-grandsons adopted before such date (Who are hereinafter called "sharers"); Rules made in exercise of the powers conferred by Section 67 read with Section 44 (2) (b) of the Act: Rule 1. In the case of an Estate not being an impartible Estate governed by Section 45, the value of the respective interests in the Estate of the principal landholder and the other persons mentioned in Section 44 (1) shall be ascertained. Rule 4. (1) In the case of (1) a partible Estate other than that specified in rule (3) or (ii) an impartible Estate not governed by Section 45 the Tribunal shall determine the aggregate compensation payable to all the following persons considered as a single group:-- (i) the persons, who immediately before the notified date, owned the Estate......" The question is whether Section 45 (1) of the Act applied to the Estate, in which case the persons mentioned in Section 45 (2), i.e., the appellants and the Zamindar, would get the compensation, or whether rule 4 (1) would apply, in which case the persons mentioned therein, i.e., the persons who immediately before the notified date had owned the Estate, would get the compensation. Learned counsel for the appellants contends that the impartible Estate mentioned in Section 45 (1) is the same as that described in Section-4 (1) of the Impartible Estates Act II of 1904. We do not see any justification for this contention. Section 45 (1) only gives the description of an ancestral impartible Estate as evolved by judicial decisions. As noticed earlier it has been held by the Judicial Committee that an impartible Estate, though ancestral, is clothed with the incidents of a self-acquired and separate property, but the right of survivorship alone still remains and to that extent the Estate still retains the character of a joint family property. Section 45 (1) of the Act in terms succinctly describes an ancestral impartible Estate in the light of the said decisions. As we have held that Seithur Zamin is not an ancestral impartible Estate in the hands of the Zamindar, it is outside the scope of Section 45 of the Act. It follows that it will be governed by Rules 1 and 4 (1) of the Rules made under the Act. It is not disputed that if Rule 4 (1) applies, the appellants are out of Court, for the Zamindar alone owned the Estate before the notified date. 14. In our view, the judgment of the High Court is correct. The appeal fails and is dismissed with costs. Madras High Court Muttayan Chetti vs Sangili Vira Pandia ... on 10 May, 1882 Equivalent citations: (1883) ILR 6 Mad 1 Author: B Peacock Bench: B Peacock, R Couch, A Hobhouse JUDGMENT Barnes Peacock, J. 1. The appellant in this appeal was the plaintiff, and the respondent the defendant, in a suit, No. 13 of 1875, brought in the District Court of Tinnevelly. It appears that in an original suit, No. 8 of 1867, brought in the District Court of Tinnevelly, the late zamindar of Sivagiri, the father of the defendant, put in a razinama, dated the 20th January 18C8, whereby he acknowledged the sum of Rs. 55,872-12-0 to be due, and agreed that the amount should be paid on the 31st December 1872, together with interest at one per cent, per mensem, by the instalments mentioned therein, and he thereby hypothecated certain lands therein specified, being part of the zamindari, as a security for the payment of the principal and interest. 2. On the 4th September 1868, a decree was passed in accordance with the razinama. The money not having been paid according to the stipulations, the property hypothecated was attached, in the lifetime of the late zamindar, for instalments Nos. 1 to 9 mentioned in the razinama. The plaintiff (appellant), in his plaint in the suit now under appeal, alleged that the whole zamindari was on several occasions attached by other creditors, and that, subsequently to the death of the late zamindar, the plaintiff again attached the hypothecated property, on the 23rd of February 1874, for the 10th instalment of the razinama decree; that the District Court advertised that all the property in the zamindari would be sold in a lot on account of all the creditors; that the plaintiff presented a petition to the said District Court praying for a separate sale of the hypothecated property mentioned in the decree, or for the sale of the whole zamindari subject to his hypothecation lien; that the Court dismissed the said petition, on the 23rd of February 1874, without any inquiry; that subsequently, on the 25th February 1874, the right, title, and interest of the late zamindar in the whole of the zamindari was sold by auction and purchased by Subramania Mudaliar of Tinnevelly; that the defendant presented a petition praying for the release of the attachment made by the plaintiff for the last instalment, and that on the said petition an order was passed by the Court, on the 18th of April 1874, to the effect that the attachment ceased with the sale of the zamindari. The plaintiff further alleged that, by reason of the objections and measures taken by the defendant, the judgment debt remained unpaid, and that the plaintiff' had thereby sustained heavy loss. 3. The plaintiff in his plaint also alleged that the zamindari was the self-acquired property of the late zamindar, and, moreover, that the debt acknowledged by the razinama was a just one, having been contracted by the late zamindar for the up-keep of the zamindari, for the liquidation of debts contracted on the liability of the whole zamindari before the birth of the defendant, and for the benefit of the zamindar's family, and he prayed that a decree might be passed cancelling the orders passed on 23rd February and 18th April 1874, and upholding the attachment made by plaintiff in Suit No. 8 aforesaid, confirming his right to recover the judgment debt of the said Suit No. 8, on the liability of the said Sivagiri zamindari, and adjudging the sum of Rs. 88,062-12-0, as per particulars given, to be recovered by the plaintiff, with subsequent interest and costs from the defendant and on the liability of the property hypothecated to the plaintiff under the decree in the Suit No. 8, and specified in the schedule thereto, and of all other property that had devolved on him from the late zamindar, and granting such other relief as the Court might deem proper and necessary in the case. 4. In the particulars given, the sum of Rs. 88,062-12-0 was made up of Rs. 79,574-13-0 for principal, and Rs. 8,487-9-0 for interest due under the decree according to the terms of the razinama. 5. The property mentioned in the schedule to the plaint was the same as that hypothecated by the razinama. 6. No written statement was put in by the defendant. 7. The case was tried by the District Judge of Tinnevelly, who, on the first hearing, was of opinion that, as the only basis of the plaint was the razinama decree in original Suit 8 of 1867, on which the plaintiff had already taken out execution and received partial satisfaction, the plaint must be thrown out. 8. On appeal, however, the High Court reversed that judgment, stating that " the questions raised in this suit are the liability of the property in the hands of the present zamindar to satisfy the decree, obtained by the plaintiff against the late zamindar ... The question of liability and of its extent being one of very considerable difficulty ... a suit regularly conducted was the most appropriate method of determining it." The case was, therefore, remitted for trial on its merits, and was heard again. 9. On tho hearing, after the remand, the contention of the defendant was, first, that the suit was not legally maintainable ; secondly, that the nature of the debt was not proved to be one legally or morally binding upon the present zamindar; and, thirdly, that the late zamindar had no power for this debt to encumber any portion of his estate beyond his own tenure of the property. 10. The Counsel for the plaintiff sought to show-- first--that the debt which is the basis of the suit was one incurred before the birth of the present zamindar; Secondly --that it was a bond fide debt for absolute necessity and not for mere extravagance ; Thirdly--that the entire zamindari was the self-acquired property of the late zamindar, and could be alienated at will by him, and, therefore, that the hypothecation created by him was enforceable. 11. It was stated by the District Judge in his judgment that, though no issues were settled, the above points were virtually the issues to which both parties at tho final hearing addressed themselves. 12. The following is the history of the zamindari as found by the District Judge and concurred in by the High Court :-- The zamindari of Sivagiri was an ancient paleiyam of the district of Tinnovelly, and was converted into a zamindari with a permanent peshkash by the Government in tho year 1808, and tho then palayagar was granted a sanad-i-milkeut istimrar, and was created first zamindar of Sivagiri. He died on tho 21st February 1819, and, having left no male heir, his only daughter was created second zamindar of Sivagiri (Exhibits E 1 and E 2). She died in 1835 and was succeeded by her elder son Varaguna Rama Pandia Chinnatambiar (Exhibit E 7), the third zamindar. During his time a new sanad was applied for, in consequence of the original being lost, and was issued to him in October 1841. Exhibits E 11 to E 19 give the history of tho sanad, a copy of which is Exhibit 18. It is in the usual form and concludes with the words ' you are hereby authorized and empowered to hold in perpetuity to your heirs, successors, and assigns, at the permanent assessment herein named, the zamindari of Sivagiri.' This man died 27th September 1873, and has been succeeded by his son Sangili Vira Pandia Chinnatambiar, the fourth zamindar, the defendant (respondent). 13. In the course of his judgment, the District Judge, speaking of Suit No. 8 of 1867, made the following observations. He said :-- This suit ended in a razinama by which tho zamiudar pledged himself to pay Rs. 55,872 with interest, and he pledged a certain tank in the village of Sivagiri as security for the amount. It was while that suit was in course of execution that the whole zamindari was attached by this Court, and for three years taken into this Court's management for the liquidation of the judgment-creditors, and these plaintiffs received their shares in the rateable distribution from the produce of the whole estate, viz., Rs. 7,452-13-7 on the 1st July 1872, Rs. 4,230-5-9 on the 21st November 1872, Rs. 7,609-10-10 on the 29th January 1874, and Rs. 3,777-3-5 on the 14th April 1874, in all, Rs. 23,070-1-7 in payment of this razinama A 2. This suit is brought for the balance of that razinama debt, and the whole arguments of the plaintiff's counsel have been directed to show that the claim is due from the whole estate. Even under the razinama A 1, which is the basis of this suit, the lien could have only been against the land therein named, viz., certain lands under one tank, but, under the provisions of Section 271, the plaintiff as mortgagee, if he wanted to hold his lien upon this one tank, cannot, of course, partake in the rateable distribution, and he would have to reimburse, with its accumulated interest, the Rs. 23,070, which he has received, before he could seek to exorcise his right as a mortgagee under Section 271. This principle has been maintained by this Court with regard to other of the judgment-creditors who shared in this distribution, and who, like this plaintiff, having benefited by the attachment of the whole estate and shared in its produce, although he had merely an interest in a fractional portion thereof like this plaintiff, also sought to get an interest which, if he ever possessed it, he had waived by taking part in the distribution. 14. He then, after examining the evidence as to the receipts, the peshkash and the expenses of the estate, proceeded as follows: I find, therefore, upon the record as it is now before the Court, that this plaintiff cannot succeed in the present suit-- First.--Because this claim is based upon a debt which is covered by a decree now in course of execution. This ground has, however, been reversed by the High Court in their judgment. Secondly.--I find that he cannot succeed as, having taken his share of the rateable-distribution of the proceeds of the whole estate, he is legally prevented, by the proviso of Section 271, from still enforcing his share over his mortgage property. This opinion, before stated, has been confirmed by the High Court in appeal in Civil Miscellaneous Regular Appeal No. 260 of 1876. Further, though the plaintiff's counsel urged the plaintiff's lien over the whole estate,. there is no foundation whatever upon the record for such a plea. He sought to establish that the debt was one of family necessity. I find it not to be-so established. The plaintiff says that this debt is one which the son is legally bound to pay for his father. I find that it is not so. The plaintiff has urged that the zamindari was the self-acquired property of Varaguna Rama Pandia Chinnatambiar, the defendant's father, and that he could, therefore, alienate the whole of it at will without reference to his sons, and that it is to be governed strictly by Hindu law. I find that it was not his self-acquired property, although it came to him through his mother, but as ruled in his case by the Sadr Court in Appeal Suit No. 90 of 1851,. wherein the whole of the plaintiff's present argument was advanced and disposed of. I therefore find that the late zemindar had pewer only to alienate his life interest for his debts, and not to alienate his sen's reversion, and moreover that, in point of fact, he did not attempt so to alienate it for the present plaintiff's debt. For all these reasons I find that the estate now in the hands of the zamindar (defendant) is not liable to satisfy the plaintiff's judgment claim against the late zamindar, and further that the plaintiff is, as above stated, legally debarred from bringing this suit. "I therefore dismiss this suit. 15. Their Lordships think it right here to remark that there was great irregularity in the District Judge's proceeding to a final hearing without issues having been settled, so that the parties might, before the trial, know to what points they would have to address themselves, and also in his having, in direct opposition to the judgment of the High Court, held in his judgment, after the remand, that the plaintiff was legally debarred, as above stated, from bringing his suit. 16. The plaintiff appealed from the decree of the District Judge to the High Court upon the following grounds, viz.: (1) That the plaintiff was entitled to a decree for the amount claimed. (2) That the zamindari of Sivagiri came to the defendant burdened with the debts of his father, whether incurred before or after defendant's birth, and, having assets of his father in his possession, he was liable for his father's debts to the extent of the assets. (3) That the District Judge was in error in holding that the Hindu law did not apply. (4) That the zamindari was the self-acquired property of the defendant's father, or, at all events, it was not property in which the defendant acquired any rights by reason of his birth. The defendant merely succeeded to the estate left on his father's death and had no independent rights in the property. (5) That if the zamindari should be held to be ancestral property in which the defendant acquired rights by his birth, the plaintiff was still entitled to charge his debt upon the zamindari, the plaintiff's debt having been incurred in circumstances which would make it a binding charge upon the estate. (6) That the plaintiff was not precluded, as the Judge held, from maintaining the suit. 17. Upon that appeal the High Court, after adverting to the nature of the suit and to the contentions of the plaintiff and defendant respectively, proceeded as follows: The lower Court originally held that the suit was not maintainable, but on appeal it was decided by this Court that the question of the liability of the estate in the hands of the defendant to satisfy the decree against his father was one of considerable difficulty, and that a regular suit was the most appropriate mode of determining it. The history of this zamindari, in so far as it is necessary for the purpose of this suit, is sufficiently set forth in paragraph 8 of the judgment appealed against. In his revised judgment, the District Judge considers that, as the second zamindar was a woman, the third zamindar would, under the ordinary Hindu law, have held the zamindari as his self-acquired property, but that he had not held it as such, by reason of its being an impartible estate, held exceptionally under a sanad (Exhibit E 18) from the Government. The first question for decision is whether the Hindu law is not applicable in this case. It seems to £11] us that the sanad only rendered permanent the peshkash or assessment which had varied from time to time, changed the character of the estate, which had till then been that of a southern paleiyam, into that of ordinary Hindu property, and recognized the ordinary Hindu law as governing the succession to it in order to determine the right of interference exercised by Government on the ground of tenure, without prejudice to impartibility or any other special incident which had already attached to the estate by the custom of the family, originating no doubt in the ancient tenure. We are therefore of opinion that the zamindari, though impartible by custom, is doubtless governed by the Hindu law, subject, as observed by the Privy Council, in Katama Natchiar v. The Rajah of Shivagunga 9 M.I.A. 592 to such modifications as flow from its impartibility. This view brings under our consideration the next question, whether, when the zamindari vested in the defendant's father, it became his self-acquired property. In support of this contention, it is urged for the appellant, 1st, that the second zamindar was a woman; 2ndly, that she took an obstructed heritage; and, 3rdly, that, when it passed into her son's possession, it ceased to be ancestral property in which his son (defendant) had ownership by birth. For the reasons mentioned in our judgment in the Shivagunga case, we think that though a daughter, inheriting to her father, succeeds as heir, and does not take, as is at times stated, merely a life estate, still she takes but a qualified heritage, which, under the text of Katyayana passes, upon her death, to her father's in preference to her own heirs. Her succession being thus rather a case of obstruction, or interposition, than of regular inheritance for herself and her own heirs, and the estate taken by her being, moreover, as observed in that judgment, not her Stridauam, her intervention as heir does not, in our opinion, alter what was originally ancestral into self-acquired property. According to all the texts of the Hindu law of which we are aware, the absence of paternal or maternal property, or of any aid from it, is a necessary ingredient in the conception of self-acquired property, and the author of the Mitakshara defines it as property which has been acquired by the coparcener himself, without any detriment to the goods of the father or mother (Mitakshara, Chapter I, Section IV, p. 2). We think it is clearly erroneous to say that property inherited through a mother is self-acquired as between her son and grandson. It may not be ancestral in the sense in which property inherited by the father from the paternal grandfather is liable to partition, under the Mitakshara law at the instance of the son, but it is not self-acquired property on that ground for purposes other than those of partition. 18. The High Court then, after considering the question whether the restriction as to the alienation of ancestral property, imposed upon a father by the Mitakshara law in regard to property descended from his father, or paternal grandfather, extended to property descended from his maternal grandfather, expressed their opinion that the contention of the plaintiff that the zamindari should be treated, for the purpose of alienation, as if it had been self-acquired by the father was not well founded. 19. They then proceeded thus: The next question for decision is whether the debt sought to be recovered, which, though in part improvident, is neither immoral nor vicious, and which ' is further partly secured by a mortgage,' is binding on the present zamindar, the defendant in the suit and the respondent-in the appeal, who was born when it was contracted. 20. In determining that question they say: As to the contention that a debt may not have boon incurred for family necessity and may still be binding on the son, provided that it is neither immoral nor vicious, we do not clearly see our way to uphold it. According to the text of Yajnyavalkya, the alienation of immovoable property without the son's consent is forbidden and, according to the text of Vrihaspati, the father can only alienate it where there is a family necessity. It is then argued that, as observed by the Judicial Committee, in Girdharee Lall v. Kanton Lall and Muddun Thakoor v. Kantoo Lall 14 B.L.R. 187 : S.C.L.R. 1 I.A. 321, the son is under a pious obligation to pay the father's debt, where such debt is neither immoral nor vicious. There can be no doubt that it is the pious duty of a son to pay his father's debt. Narada says that fathers desire male offspring for their own sake, reflecting ' this son will redeem me from every debt due to superior and inferior beings.' Therefore, a son begotten by him should relinquish his own property, and assiduously redeem his father from debt lest ho fall into a region of torment. If a devout man, or one who maintained a sacrificial fire, die a debtor, all the merit of his devout austerities or of his perpetual fire shall belong to his creditors (1 Dig. Higg. Edition 202). If this text is to be enforced as imposing a legal duty, we shall have to compel sons who have inherited no property from their father, either ancestral or self-acquired, to pay the father's deot, for the text directs him to pay it from his own property. Again,, this pious obligation is confined to the son and grandson, and does not extend to the great grandson, and in the case of the grandson it is limited to the payment of the principal. Vrihaspati says, ' The sons must pay the debt of their father, when proved, as if it were their own, or with interest; the son's son must pay the debt of his grandfather, but without interest, and his son or the great grandson shall not be compelled to discharge it unless he heir and have assets.' Vishnu observes likewise, ' If he who contracted the debt should die, or become a religious anchoret, or remain abroad for twenty years, that debt shall be discharge 1 by his sons or grandsons, but not by remoter descendants against their will (I Dig. Higg. Edition 185). Thus, the obligation does not depend on the relation as partakers of the same funeral cake, and is not co-extensive with the capacity to inherit. Consequently, if there are sons, grandsons, and greatgrandsons, the obligation must be held to be valid to the full extent of the debt as against the first, to the extent of the principal as against the second, and not at all as against the third. Again, the allusion in the text of Narada to ' every debt, due to superior and inferior beings ' would seem to favour the view that pious duties were enforced by Hindu tribunals in the exercise of their jurisdiction-over matters which are purely spiritual. When the learned Advocate-General is pressed with these difficulties in recognizing the son's pious obligation as a legal obligation, he argues that though it is not to be enforced as such where no assets are inherited, still the son's ownership in ancestral property is subordinate to that of the father, and the father's predominant interest gives it the character of the legal duty with respect to the alienation of ancestral property. But in chapter I, Section V, 9, the author of the Mitakshara says, ' The grandson has a right of prohibition, if his unseparated father is making a donation or sale of effects inherited from the grandfather, but he has no right of interference, if the effects were acquired, by the father. On the contrary, he must acquiesce because ho is dependent.' In p. 10, he states, ' Consequently the difference is this; Although ho has a right by birth in his father's and grandfather's property, still, since he is dependent on his father in regard to the paternal estate, and since the father has a predominant interest, as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property; but since both have indiscriminately a right in the grandfather's estate, the son has a power of interdiction (if the father be dissipating it).' According to Vijnanesvara Yogi, the author of the Mitakshara, the son's ownership in ancestral estate is not subordinate but co-ordinate, and it is dependent only where the father himself acquires the property. The course of decisions in this Presidency from the date of Ramasami v. Seshachella 2 Strange N.C. Ed. 1827 p. 74, see I.M.H.C.R. 474) has been to recognize, equal ownership by the son in the grandfather's estate, though it may not be divided between the father and the son, and to uphold the father's alienation only to the extent of his share, though in Bengal it has been hold that an undivided share is not alienable. This difference in the view of the two High Courts is referred to by the Judicial Committee in Deen Dyal Lal v. Jugdeep Narain Singh I.L.R. 3 Cal. 198 : S.C. L.R. 4 I.A. 247. In these circumstances, it is not easy to conclude that the fjords of the Judicial Committee intended to vary the course of decisions in this Presidency, In the decision in Kantoo Lall's case, there are remarks which show that the father and son were probably acting in collusion with one another against the purchaser, and that the suit was not brought till ten years after the sale was completed. The pious duty of a son may be a foundation for presuming the son's concurrence in the alienation by the father when, with the knowledge of it, the son elects to remain in co-pareenery with the father, and takes no step to set aside the alienation, until the father becomes destitute after a considerable lapse of time, when, acting in collusion with him, ho tries to upset a transaction in which he may be fairly presumed to have acquiesced in the special circumstances of the case. Furthermore, the property now in litigation is an impartible zamindari, in which the son cannot protect his interest, as in ordinary property, by electing a division. The only question then which remains to be considered is, whether the debt now in dispute was incurred under family necessity. The Court below holds that there was no necessity for contracting the debt. Though we concur in the view that, under more prudent management, the arrears of peshkash in 1853 might have been avoided, still we think that, in so far as the plaint debt was applied to the liquidation of debts which had been contracted for paying the assessment, it is binding on the defendant. The original lender advanced the money to relieve the zamindari from attachment for arrears of peshkash, and he was bound only to look to the immediate pressure on the estate and the benefit accruing to it from the advance. There is nothing in the evidence to lead us to the conclusion that this was a fraudulent contrivance between the late zamindar and the creditor to enable him to apply the income from the estate to purposes other than those warranted by the law. To this extent we think that the debt is binding upon the zamindari. We shall, therefore, vary the judgment appealed against, so as to adjudge to the plaintiff 26,019-4-7, with proportionate costs on the security of the zamindari, and otherwise confirm it. 21. Upon that judgment the following decree was recorded: This Court, in variance of the revised decree of the Lower Court, doth order and decree that the plaintiff do recover the sum of Rs. 26,049-4-7, with proportionate costs in this Court and in the Lower Court on the amount now adjudged; and this Court doth further order and decree that the zamindari of Sivagiri shall be liable for the satisfaction of the decree amount and costs now adjudged, and that the decree be in other respects confirmed. 22. From that decree a petition of review was presented by the plaintiff. 23. The defendant also applied for a review of judgment, upon the ground that the calculation upon which the decree was based was erroneous, and. that the amount decreed was too high. 24. The reviews were admitted, and in delivering his judgment the learned Judge Mr. Justice MUTTUSAMI AYYAR, before whom the reviews were heard, declared that he still adhered to the principles on which the decision, passed by the late Chief Justice Sir WALTER Morgan and himself, rested, and confined himself, in dealing with the petitions of review, to errors of calculation and to those matters which showed that the decree had not been drawn up in conformity with the judgment, and then after dealing with the errors in calculation and declaring that the error should, be corrected in the mode indicated, proceeded-- It is also from oversight that the decree contains no provision for payment of interest at 6 per cent, per annum until date of payment. The respondent has no objection to the amount decreed being hold to be a special charge on the village mentioned in the plaint. The decree should be amended in this respect also. 25. The first decree of the High Court was accordingly amended, and the final decree passed on review was entered as follows: This Court, in variance of the revised decree of the Lower Court, doth order and decree that the defendant do pay to the plaintiff the sum of Rs. 35,132-11-9, with further interest at 0 per cent, per annum upon Rs. 32,284 from 22nd February 1875, the date of the plaint, till date of payment, and that the zamindari of Sivagiri be liable for the satisfaction of the decree amount and costs now adjudged. And this Court doth further order and declare that the said amount forms a valid charge over the property mortgaged to the plaintiff and described in the schedule hereunto annexed. And this Court doth further order and decree payment of proportionate costs, incurred both in this Court and in the Lower Court upon the amount allowed and disallowed respectively. And it is hereby ordered that the defendant do pay to the plaintiff Rs. 1,692-0-6, being the amount of nett costs, as admitted by both parties, due to plaintiff after deducting the costs due by him to the defendant. Schedule. Rasingaperiakulam, consisting of 589 kotas 4 merkals and 1/8 measure seed wet land> nclusive of maniam lands, in the kusba village of Sivagiri, in the defendant's zamindari. 26. From that decree the present appeal was preferred. The' defendant did not appear or file any cross appeal. 27. It was contended on the part of the plaintiff, first, that the zamindari, having descended to the defandant's father from his maternal grandfather, was. his self-acquired property, or at any rate that he was not, as regards his son, under the same restrictions as to the alienation or hypothecation of the property, as he would have been if it had descended to him from his father or paternal grandfather; secondly, that the whole zamindari, or at least the interest which the defendant took therein by heritage, was liable as assets by descent in the hands of the defendant, as the heir of his father, for the payment of his father's debts. Their Lordships are of opinion that the appellant is entitled to succeed upon the second ground, and they therefore think it unnecessary to express any opinion upon the first. Indeed, as the case has been argued before them on one side only, and the same question may hereafter be raised in some other case, they consider it right to abstain from expressing any opinion upon it, except that they concur with the High Court in holding that the property was not the self-acquired property of the defendant's father. 28. As to the second ground, they consider that the case is governed by the case of Girdharee Lall v. Kantoo Lall 14 B.L.R. 187 : S.C. L.R. 1 I.A. 321. The doctrine there laid down was not new, but was supported by the previous cases therein cited. The principle of that case was adopted by this Board in the case of Suraj Bunsi Koer (I.L.R. 5 Cal. 149; S.C., L.R., 61.A., 88) and has been very properly acted upon in Bengal, in Bombay, and in the North-West Provinces, and although it was not acted upon by the High Court in Madras, as it ought to have been in the case now under appeal, it has since been acted upon in a Full Bench decision by all the Judges of that Court, except two who dissented, of whom Mr. Justice MUTTUSAMI ATYAR was one, in Ponnappa Pillai v. Pdppuvayyangar I.L.R. 4 Mad. 1, decided 1st April 1881. 29. The reasons given in the judgment of the High Court in the present case constitute no ground for the opinion that the case of Kantoo Lall does not apply to the Madras Presidency. It was said in the judgment in that case: "There is no suggestion either that the bond or the decree was obtained benamee for the benefit of the father, or merely for the purpose of enabling the father to sell the family property and raise money for his own purpose. There is nothing of the sort suggested and nothing proved." That statement certainly did not justify the assertion of the High Court, which was clearly a mistake, that ' in that case there were remarks which show that the father and son were probably acting in collusion with one another against the purchaser." 30. One of the grounds relied upon by the High Court for considering that the case of Kantoo Lall was not applicable to the Madras Presidency was that the course of decisions in the Madras Presidency had been to uphold the father's alienation to the extent of his own share, though it was said to have been held in Bengal that an undivided share is not alienable, a difference referred to by the Judicial Committee in Deen Dyal Lal's case (I.L.R. 3 Cal. 198; S.C. L.R. 4 I.A. 247). Assuming without admitting that the difference exists--see the remarks in Suraj Bunsi Koer's case (I.L.R. 5 Cal. 167 : S.C., L. E., 6 I. A. 102)--it is impossible to see how the father's power to alienate his own share could constitute a valid reason for supposing that, where that law existed, the son's share, taken by heritage from the father, was thereby exempted from liability for the payment of his father's debts. The fact of the zamindari being impartible could not affect its liability for the payment of the father's debts when it came into the hands of the son by descent from the father. Their Lordships are of opinion that no order ought to be made for cancelling the orders of the 23rd February and 18th of April 1874,, or for upholding the attachment made by the plaintiff in suit No. 8. By such a decree, the rights of other creditors and those of the purchaser under the sale of the 25th February 1874, might be affected, and none of them are parties to this suit. Those orders and that attachment do not affect the rights of the plaintiff as against the defendant. It would seem from the proceedings in the District Court of Tinnevelly, of the 18th April 1874, and the statement in the 10th paragraph of the plaint, taken together, that the life interest of the late :zamindar, the father of the plaintiff, in the whole zamindari, including the part hypothecated, have been sold to a bond fide purchaser. That sale cannot be affected as to whatever legally passed under it by any decree in this suit. The learned Judge of the High Court who heard the case in review, and who declared in the decree that the amount decreed forms a valid charge over the property mortgaged to the plaintiff, did not allude to the decision of the District Judge as to the abandonment by the plaintiff of his lien under the hypothecation by partaking of a rateable distribution with the other creditors of the father, nor did he intend to affect, nor could, he affect, by that declaration, the rights of persons not parties to the suit, nor did he intend to, nor could he, by declaring that the zamindari of Sivagiri should be liable for the satisfaction of the decreed amount and. costs, affect the rights of the purchaser under the sale admitted by the plaintiff in the 10th paragraph of his plaint. The defendant is liable for the debts due from his father, to the extent of the assets which descended to him from his father, and all the right and interest of the defendant in the zamindari, which descended to him from his father, became assets in his hands, and that right and interest, if not duly administered in payment of his father's debts, is liable, as against the defendant, to be attached and sold in execution of the amount that may be decreed against him. 31. Their Lordships will therefore humbly advise Her Majesty to reverse the decrees of the High Court and of the District Court respectively, and to decree and declare that the defendant, as the son and heir and legal representative of Varaguna Rama Pandia Chinnatambiar, deceased, the late zamindar of Sivagiri, do pay to the plaintiff, out of the property which was of the said Varaguna Rama Pandia Chinnatambiar, deceased, and which came to the defendant by heritage, the amount due on the 2nd of March 1875, under the decree of the 4th of September 1868, mentioned in the plaint filed in the Suit No. 13 of 1875 in the District Court of Tinnevelly, together with interest on the amount so due, at the rate of 6 per cent, per annum, from the 2nd March 1875 to the time of realization, and, further to declare that, so far as the defendant is concerned, all "the right, title, and interest which descended to him from his father and came to him by heritage, as well in that part of the zamindari of Sivagiri which was hypothecated by his father, as in that part thereof which was not hypothecated, rare liable, so far as they have not been administered in payment of his father's debts, to be attached and sold in execution of the amount for which it shall be declared that the defendant is liable, together with such interest as aforesaid, after giving credit for any portions thereof, if any, which, since the said 2nd day of March 1875, have been paid or satisfied; and, further, that the case be remanded to the High Court, with directions to ascertain and determine what amount was on the said 2nd day of March 1875 due under the said decree of the 4th of September 1868, and whether any and what portion or portions thereof has or have been satisfied or discharged since the said 2nd day of March 1875, and to pass a decree in accordance with the above directions, and awarding costs both in the District Court and in the High Court in proportion to the amounts decreed and disallowed respectively. 32. And it is hereby order that the costs of this appeal be paid by the respondent. Madras High Court Periannan And Ors. vs Airabadeeswarar Soundaranayagi ... on 2 December, 1949 Equivalent citations: AIR 1952 Mad 323, (1952) IMLJ 71 Author: S Rao Bench: S Rao, V Sastri, R Rao JUDGMENT Satyanarayana Rao, J. 1. These second appeals and the civil revision petitions arise out of a batch of suits relating to the village of Manamelpatti, a Dharmasanam village, in the Ramnad District. The suits out of which these second appeals arise were instituted by the trustees of Airabhadeswarar Soundaranayagi Amman Temple for ejectment of the defendants from the lands in their respective possession and for recovery of rent for faslis 1349 and 1350 and for future profits. The village comprises 80 pangus out of which the plaint temple in this batch owns 23 1/2 pangus purchased from the original owners and one pangu taken on othi from the owner. The plaintiffs in the batch of suits out of which the civil revision petitions arise are the managers of the Devasthanam of Nagara Vairavanpatti Valaroleeswaraswami Nagara Vairavaswami Devasthanam. This temple owns 54 and 5/8th pangus or shares in the village and suits were instituted for recovery of the balance of amounts due as 'iru bogam' for faslis 1349 and 1350. In both the batches of suits the plaintiffs claimed that they were the owners of mel-waram and kudiwaram interest in the lands which were being enjoyed as "pannai" lands or "private lands" that they were leasing the lands from time to time changing tenants and were also collecting "swami bhogam" in recognition of their full proprietary rights in the lands. They claimed that the tenants had no occupancy rights in the lands; and in the second appeals batch a relief for ejectment of the tenants is also claimed. The defence of the defendants-tenants in both the batches is common. They claimed that the temples owned only the melwaram interest and that they, the tenants, are the owners of the kudiwaram which they have been enjoying hereditarily paying half waram in respect of the nanjas and a fixed money rent for the punja or dry lands according to the "tharam" (classification) of the lands. They denied that they ever paid "swami bhogam" to the temple. In all the suits there is the common plea that the village is an "estate", under Section 3(2) (d) of the Madras Estates Land Act, as amended by the Madras Estates Land (Amendment) Act, 1936 (Act XVIII of 1036), that they had therefore acquired occupancy rights under the Act; that the lands were ryoti and that, therefore, the civil Court had no jurisdiction to try these suits. 2. Appropriate issues covering the contentions of the parties were raised in the two sets of suits and they were disposed of by the same District Munsif in the Court of first instance by similar judgments though not by a common judgment and the same procedure was adopted by the learned Subordinate Judge in appeals. The plaintiffs raised an alternative contention that on the footing that the village is an "estate", the suits lands are private lands or pannai lands of the temples and therefore the defendants acquired no occupancy rights in the lands under the statute and that the civil Court alone had jurisdiction to entertain and try the suits. 3. The main questions that had to be considered by the Courts below were whether the village was or was not an estate under the Madras Estates Land Act, &, if so, whether the lands were private lands as claimed by the plaintiffs or ryoti lands as claimed by the tenants. The further question that even apart from the Estates Land Act whether the defendants had acquired occupancy rights by prescription was also raised and considered. The Jurisdiction of the civil Court to entertain the suits depended upon the decision of the question whether the village was or was not an estate. There were also some other questions of subordinate importance in these suits which were considered and disposed of by the trial Court but they are no longer in issue in these proceedings now before us. They may, therefore, be left out of consideration. 4. On the main question the concurrent findings of the Courts below were that the village was an "estate" under Section 3(2) (d) of the Madras Estates Land Act as amended in 1936, that the plaint temples owned the melwaram and the kudiwaram interests in the lands; that the lands were private lands as defined by the Madras Estates Land Act, that the defendants had acquired no occupancy rights in the lands either under the Act or by prescription and that the suits were properly laid in the civil Court which had undoubted jurisdiction to try the suits. In the second appeals batch the trial Court granted a decree in ejectment, decreed arrears of rent for the two faslis and also decreed future mesne profits until delivery of possession. In the other batch rent was decreed as claimed by the plaintiff. 5. There were appeals by the defendants to the Subordinate Judge of Sivaganga who agreed with the findings of the District Munsif in all the suits; but he refused the plaintiff relief for ejectment in the second appeals batch on the ground that the tenancy which subsisted between the plaintiff and the defendants was not terminated by a proper notice to quit. He therefore modified the decrees irk ejectment granted by the trial Court by disallowing relief for delivery of possession but confirmed it in other respects. 6. The learned Subordinate Judge however while confirming in other respects the decrees of the District Munsif in this batch overlooked the fact that in view of his refusal to confirm the decree for possession he could not confirm the decree for future profits and this relief should have been deleted from the decree. It is now contended on behalf of the respondents that this is a mistake and should be rectified. In the rent batch the learned Subordinate Judge confirmed the decrees of the District Munsif 'in toto'. These second appeals and the revision petitions were preferred by the unsuccessful tenants. 7. When these second appeals and the revision petitions came before me and my learned brother, Raghava Rao, J., in the first instance we directed that these cases should be heard by a Bench of three Judges in view of the conflict of judicial opinion on the question of the test to be applied to determine what constitutes private lands under Section 3(10) of the Madras Estates Land Act. They have accordingly been posted for hearing before us. 8. The questions raised in both sets of cases being common and as the lands in dispute are situated in the same village of Manamelpatti we have heard the cases together. 9. The finding of the Courts below that the temples owned the melwaram and kudiwaram interest in the lands and that the defendants had not acquired permanent rights of occupancy in the lands apart from the Act have not been disputed before us on behalf of the tenants. The dispute is confined therefore to two questions and two questions alone, the first, whether the village is an estate under the Madras Estates Land Act and secondly, whether the concurrent finding of the Courts below that the lands are private lands of the temple is correct or not. 10. The first question therefore for consideration is whether the village of Manamelpatti is an "estate" or not. Both the learned District Munsif and the learned Subordinate Judge were of opinion that it was an estate under Section 3(2)(d) of the Act, notwithstanding the fact that the grant to the village was not confirmed by the British Government in the view that the grant must be deemed to have been "recognised" by the Government as it was entered in the Government register and as Government never disputed the title of the temple to the suit lands and also collected road cess under the Local Boards Act from the plaint temples. 11. In dealing with this question reference is made in this judgment to the exhibits as they are marked in the second appeal batch. The same documents have also been died and exhibited in the rent batch but they were given different exhibit marks. 12. The grant is not forthcoming though it appears from Ex. P. 26 an extract from the register of Manibams forwarded by the District Collector, Madura, to the Board of Revenue in 1815 that there was a grant which was registered in the Collector's office. The earliest document on record which throws any light on the nature of the grant is this extract from the register of manibams. It does not purport to be a register of lands held exempt from payment of revenue as required to be maintained in each District by Section 15 of Regulation 31 of 1802. At the time of the Permanent Settlement 1802, 'Lakhraji' lands were excluded from the settlement by Section 4 of Regulation 25 of 1802 known as the Permanent Settlement Regulation. On the same day on which that Regulation was passed by the Governor-in-Council, namely, the 13th July, 1802 there were other Regulations which were also passed and one of them is Regulation 31 of 1802. Under this Regulation power was reserved by Government to deal on a future date with the alienated lands or 'Lakhraji' lands which have been excluded from Permanent Settlement. For that purpose the Regulation enacted various provisions, one of which, Section 15, required that in each Zilla or district a register should be kept of the lands held exempt from the payment of the revenue and the register, it is directed by that section, should be denominated "register of lands exempt from payment of revenue under grants not being badshahi or royal." This Ex. P. 26 is not a register maintained under that section as was wrongly assumed by the learned Subordinate Judge. The extract shows that the village Manamelpatti was granted for subsistence to one Ramaswami Aiyar and others on 3rd Margali of the year Kalayukthi, 1720. The year 1720 is not the A.D. year but the year of Salyavahana Saka which commenced in 78 A.D. The learned Subordinate Judge thought that the reference is to the A.D. year 1720 but it does not correspond to the year Kalayukthi. The reference must be to the Kalayukthi of the year 1798 A. D. There is an earlier Kalayukthi in the A. D year 1738. The grant is hereditary. Column 4 of the register gives the estimated annual value of the village as 85 -- 22 -- 70. It is not known whether the reference is to pagodas or some other coin or grain measures. Whatever it be, column 10 of the register reveals that the annual rent payable for the village was 80 -- 0 -- 43. This means, whatever the unit may be, that Ramaswami Aiyar the grantee for whose subsistence the grant was made was getting only an income of 85 and odd units and was liable to pay 'as rent' and not 'as revenue' for the village 80 and odd units, leaving to him the insignificant balance of about 5 units. The present extent of the lands in acres as now admitted before us is about 140 acres wet and 86 acres dry making a total of 226 acres. From the entries in this register it will be a legitimate inference to draw that this Ramaswami Aiyar and others were holding the lands on condition of paying 80 units of rent to the grantor. This register was prepared nearly 13 years after the date of the Permanent Settlement. The village was once part of the Ramnad Zamindari but now it is part of the Sivaganga estate. There does not seem to be any grant of inam as is evident from the entries in this register except it be that five units over and above the rent were treated as inam. There are, however, two important documents which throw some light as regards the tenure on which the village was held by the grantees. They are Exs. P. 23 and P. 24 of the year 1882. Ex. P. 23 is a copy of the plaint in O. S. No. 25 of 1882 on the file of the Sub-Court, Madura East. That was a suit by the Zamindar of Sivaganga Estate and the receiver appointed for the estate as plaintiffs against the representative of the grantee for recovery of a sum of Rs. 968-7-11 representing profits for three faslis. The allegation in the plaint was that the village was an 'ayan' village before the Permanent Settlement, that at the time of the faisala in F. 1211 (istimirar feisal), it was assigned as dharmasanam by his predecessor-in-title over which the grantees were paying annually at the rate of Rs. 229-2-0 as 'poruppu', while the Zamindar had to pay to the Government under the Permanent Settlement for their 3/5ths share a sum of Rs. 559-7-7 per year, that this grant by his predecessor at a lower rate which is far less than the rate fixed by the fysal arrangement did not bind the plaintiffs and that, therefore, they were entitled to recover the difference of Rs. 260-5-7 per year for the three faslis with interest thereon. Ex. P. 24 is the judgment in that case which shows that the defence of the defendants was that the village was a 'dharmasanam' from before the faisal and that the plaintiffs had no right to question the act of the 'Isthimirar' Zamindar, that is the Zamindar to whom the zamin was granted under the Permanent Settlement and that the suit was barred by limitation. The finding of the Court was that the grant was not subsequent to the Permanent Settlement but was prior to it and that even if it was granted subsequent to the Permanent Settlement, the grant was binding on the plaintiffs as it was the self-acquired property of the grantor who could make a grant at a low fixed rent. From this it is clear that the grant was a pre-settlement grant but the income was taken into consideration and was included in the assests of the Zamindari at the time of the Permanent Settlement and the peishcush was assessed on that basis. By converting it into dharmasanam village the rent was reduced to Rs. 299 and odd which is payable to the zamindar, the grantor. It is fairly clear from the evidence now adduced in the case that this 'poruppu' is being paid by the two temples in some proportion. The village therefore was not a 'Lakhraji' village at the time of the Permanent Settlement and was not treated as inam grant which was excluded from the assets of the zamindari in 1802. It was treated as an undertenure held by the grantee and his descendants under the zamindar on payment of the 'poruppu' of Rs. 299 and odd every year. It is for this reason I think that the Government abstained from dealing with this village at the time of the inam enquiry of 1860. The grant was not the subject-matter of investigation at the time of those proceedings and the grant was not confirmed or recognised and no title deed was granted to the then holders of the village. The Government must be deemed to have recognised that the reversion had vested in the Zamindari. The learned Subordinate Judge adverted to the question whether the village is held as permanent undertenure within the meaning of Section 3 (2)(e) of the Madras Estates Land Act; but in his opinion there was no evidence to establish that the income of the village was included in the assets of the Sivaganga zamindari at the time of the permanent settlement and he also opined that it was 'lakhraji' land which must have been therefore excluded at the time of the Permanent Settlement from the computation of the assets. The village, at the time of the grant was part of the Sivaganga Zamindari which was permanently settled in 1802. The grantee and his descendants are liable to pay to the grantor and his descendants the 'poruppu' of Rs. 299 and odd annually. The village was included in the assets at the time of the Permanent Settlement and was not excluded. It was not treated as an alienated land or 'lakhraji' land within the meaning of Section 4 of the Permanent Settlement Regulation. The grant therefore consists of a village which is now part of the permanently settled estate of Sivaganga falling under Clause (a) of Section 3(2) of the Act. It is held on a permanent undertenure. Therefore as the grant was not a grant of an inam but the grant of an undertenure it would certainly fall under Section 3(2) (e) of the Estates Land Act and will be an "estate" within the meaning of that clause. It is sufficient under this clause that the grantee holds the village on a permanent undertenure even though the grantee at the time of the grant might have owned the Kudiwaram interest in the lands of the village, Ex. P. 26 shows that what was payable to the zamindar in respect of the village was treated as rent. If the grant consisted of less than a village and the grantor remitted a portion of the rent payable in respect of the land it may be a case which would fall within Section 26 of the Act and the successor of the grantor would not be bound by the grant at a lower rate of rent except in cases falling under Section 26(1); but if a village is granted at a lower rate of rent payable to the grantor the ease would be governed by Section 3(2)(e) and it would be a permanent undertenure within the meaning of that clause. I am therefore, clearly of the opinion that the village is an estate, not falling under Section 3(2)(d) but under Section 3(2)(e). In this view it is unnecessary to consider the question whether there is and if so what constitutes "recognition" of a grant under Section 3(2)(d) of the Act. 13. The next question is whether the lands involved in the suits are the "private" lands of the plaintiffs (temples) or "ryoti" lands as defined by the Estates Land Act. The question essentially is one of fact to be decided on the evidence in the light of the principles laid down by the Estates Land Act as interpreted by the various decisions. If the lower Courts had applied the correct test and come to the conclusion that on the evidence the land is private land, it would not be open to us either in second appeal or in civil revision petition to interfere with such a finding of fact. It is however contended on behalf of the appellants that the Courts below did not apply the correct test to determine the nature of the land and that, therefore, the finding is vitiated and should not be accepted either in second appeals or in the civil revision petitions. As the jurisdiction of the Court to entertain the suits depends upon the decision of this question and if by an erroneous decision the Court assumed jurisdiction to decide the disputes it would be a ground for interference even under Section 115, C. P. C. No objection was therefore taken on behalf of the respondents that in the civil re vision petitions it is not competent for us to go into the correctness of the findings of the Courts below. Indeed in the light of the decisions in 'Atchayya v. Seetharamachandra Rao', 39 Mad 195; 'Balakrishna v. Vasudeva', 40 Mad 793; 'Joychand Lal v. Kamalaksha', 1949-2 Mad L J 6 (PC), such a contention would be untenable. This aspect of the matter was considered by Viswanatha Sastri J. in Narayudu v. Venkataramanamurthi', 1949-2 Mad L J 623, and if I may say so with respect he held correctly that the jurisdiction of this Court in a matter of that kind to interfere is not taken away by Section 115, C. P. C., if a proper case for interference is made out. 14. It has now been found by the Courts concurrently that the temples owned both the warams and this finding has not been challenged before us. The learned Subordinate Judge agreeing with the learned District Munsif has found that in the present case the temples purchased the entire ownership in the lands, that the tenants had executed leases dating from 1886 for short periods admitting the right of the temple to both the warams and also containing surrender clauses agreeing to surrender the land on the expiration of the period of the tenancy. They also paid what is called "Swami bhogam" in recognition of the absolute ownership of the temple to the lands. Sometimes there was also change of tenancy though the tenants have also continued in some cases for a longer period in possession of the lands and the tenants had never asserted the kudiwaram interest in the lands till very recently, that is, some time from or after 1930. There is however, no evidence that the plaintiffs ever cultivated the lands. The leases did not contain the expression "pannai" or any similar terms indicating that the lands are the private lands. On these facts and in view of the opinion of the author of the Ramnad Manual of the year 1890 that in that part of the country the loose expression "iru bogam" or both the warams indicated that the land was owned as pannai or private land, particularly in the case of dharmasanams, the learned Subordinate Judge held that the lands were proved to be private lands. 15. I shall deal with the evidence in detail later but on behalf of the appellants it was urged that even if the facts as found by the learned Judge were correct the inference that they are private lands is not warranted as according to the learned advocate for the appellants the test to determine whether the land is private land or not is to see whether the Zamindar had cultivated the lands himself or by hired labour at some time or other and whether there was indication that the landlord intended to retain the lands as resumable for cultivation for himself even though he might have leased them from time to time for a season. As this test is absent in this case, it is contended, that we should not accept the finding of the Courts below that the lands are private lands. The point therefore for consideration is whether this view is correct. 16. Before referring to the sections of the Act and the decisions bearing upon the question, it will be useful to have a correct picture of what was considered to be private land before the Estates Land Act of 1908 was passed and what the origin and the incidents of the private land were before 1908. 17. Both under the Hindu Kings and later during the time of the Moghul administration the status of a cultivating tenant in a village was defined by usage. The cultivating tenant always rendered to the State a portion of the produce of the land varying with the nature of the crop which is called "melwaram" while the share left to the cultivator was known as "kudiwaram." The words "melwaram" and "kudiwaram" were in vogue in the Tamil country. In the Sircars the share payable to the Government was known as "Ambaram" or 'Raja bhagam" and what was left to the cultivator as palu. In some of the dowls or annual accounts by which settlement was made, reference was made in the documents to 'Sirkar hissab' or the share of the Government (sometimes the Zamindar also was referred to as Sirkar) and the ryot's 'hissab' or the share of the ryot. Sometimes the share of the ryot is 1/2 or 9/20 varying according to the nature of the crops raised on the lands. By common understanding and usage the cultivator was allowed to remain in the land without disturbance so long as he continued to pay the share due to the State. The cultivating tenant was treated as a co-owner with the mel-waramdars, whoever he may be, and not as a mere lessee. The Board of Revenue was charged with the duty of investigating and reporting upon the nature of the rights of ryots in this presidency about the year 1817 or 1818 and the proceedings of the Board of Revenue dated 5th January 1818, quoted in extenso in Diwan Bahadur Srinivasa Raghava Aiyangar's Fifty Years Progress in Madras Presidency contains an exhaustive survey of the relations between the land-holders and the ryots under the customary law of this country. Those proceedings were referred to by Subramania Aiyar J. in 'Venkatanarasimha Naidu v. D. Kotayya', 20 Mad 299 and 'Chidambara Sivaprakasa v. Veerama Reddi', 45 Mad 586. The collection from the ryots of the share of the revenue was entrusted both by the Hindu Kings and later by the Muhammadan rulers to officers variously described as Chowdrie, crorie, zamindars. This procedure was not peculiar to this presidency but it was also common in Bengal. These officers were appointed very often by sanads which denned their duties. They had also other functions to discharge and very often were entrusted with the duty of looking after the peace of the country. These officers by whatever description known were remunerated by various methods. They were paid a portion of the melwaram, very often about 1/10th and were also allowed to collect russooms or fees. To make up the deficiency special grants of lands were very often made to them which were denominated in Bengal, Naunkar (subsistence) and Soverum in the Sircars. With a view to make their presence necessary everywhere in the district in their charge these lands were not granted at one place but were distributed very often to each village to make the supervision effective. These lands formed the property and the absolute property of those persons who later came to be called the Zamindars and they could let them out to tenants or cultivate them personally by themselves or through their servants. But if let to tenants, the tenants had no security of tenure in the sense in which it was understood under the customary law regarding other lands, that is to say, the tenant could not say as in the case of other lands that so long as he paid the rent due to the Zaraindar he should not be disturbed from possession of the property. This usage which applied to other lands did not apply to the lands so granted. Reference may be made in this connection to the fifth report of the Select Committee on the affairs of the East India Company, 1812, Firmingol's Edn. Vol. 1 pages 25, 149 and 151 and also to Mr. Grant's Political Survey of Northern Sirkars, 1786, which is printed as Appendix to Vol III at page 22. Mr. Grant, says that "Nancar" is a Persian term. The Deccan Soverum was derived from a Turkish word with the common Telinga termination "um" signifying in both cases subsistence in bread or livelihood being to arise from small allotments of land freed from any public encumbrances & conveniently dispersed throughout the district so as to make his presence necessary everywhere, give him local attachment and greater effect to general superintendence in attending to his own private interest. Baden Powell on Land Systems in British India Vol. 1, pages 514 and 515 refers to the emoluments received by the Zamindar and points out three sources from which the Zamindar derived his private lands. First, NIJJOT, the Hindu equivalent of the Persian term "Khudkast" the same as "Sir" of other parts, that is, the lands of his family which he cultivates with his own labour and personal superintendence from which the State might or might not take revenue; secondly, lands which the Zamindar reclaimed from waste for his own benefit in which there were no pre-existing ryots and which were cultivated by contract with tenants. Such bind of land was known under the name of Khamar, the Oriya or Bengali word, used for thrashing floor, and indicating lands the produce of which is divided on the thrashing floor between the cultivator or the soil owner. These lands as pointed out by the learned author bad necessarily to be subject to the sharing system as they were waste lands newly brought into cultivation and are subject to depreciations by deer, pigs and wild beasts, from the neighbouring jungles. The loss, if any, would be borne, equally under this system of sharing the produce by both the Zamindar and the tenant. Yet a third category of land is included in it which is 'Nankar' which I have attempted to explain already. If these lands are granted free of revenue the Zamindar absorbs them into his own property. At page 515 the learned author states. "This custom of 'nankar' spread wide, and in the Northern Sirkars of Madras was found enjoyed under the local name of "Savarum". From this short summary it would be evident that private lands were not always cultivated by the Zamindar himself. He let them out on contract of tenancy under the sharing system to persons who had no security of tenure and the lands were not around his house or residence but were purposely distributed throughout the district so as to secure effective supervision by him of the entire district. These lands were not subject to the usage of the tenant acquiring a right to occupy it so long as he paid the rent due to the land-holder as per custom. Various descriptions of these lands were adopted both in Bengal and in this presidency and in other provinces having regard to the purposes for which the lands were granted. They really constituted emoluments or compensation to the Zamindar for the discharge of his duties which were defined and enumerated in the Sanad appointing him as Zamindar. 18. The Permanent Settlement of Madras practically followed and applied the principles of Permanent Settlement in Bengal contained in the Decennial Settlement Regulations, 1793, (Regulation 8 of 1793) as appears from the fifth report a copy of this regulation and the other regulations bearing upon the question were sent to Madras to enable the Madras Government to formulate the principles upon which the Permanent Settlement in Madras should be effected. These principles were embodied in the instructions issued to the Collectors on the 15th of October 1799 by the Special Commission embodying the principles on which the income for purposes of settlement of the Zamindari should be ascertained and the addition and subtractions to be made from that income to arrive at the final figures. 19. Paragraph 25 of the instructions relates to private lands and is modelled on Section 37 of the Bengal Decennial Settlement Regulations 1793. It states: "all private lands at present appropriated by the Zamindars and other landholders to the subsistence of themselves and families as well as all lands held by private servants and dependents will be considered as forming part of the Sirkar land, they are responsible for the public 'Zama'" meaning thereby that the private lands along with other lands in the estate should be liable for payment of the public 'Zama' or peishcush fixed upon the estate. But these lands it will be noted were sirkar lands appropriated by the Zamindar for their subsistence. It is not clear from the instructions whether in the collections made by the Zamindar which formed the basis of the settlement the income received by the Zamindar from private lands was or was not included. Whatever that may be, private lands were treated as part of permanent settlement as is clear from instruction No. 25 (vide also Section 2 of Regulation 25 of 1802). 20. The earliest of the decisions before the Estates Land Act which throws some light as to what constituted private lands or 'pannai' land is the decision in 'Nagayasami Kamayya v. Yiramasami Kone', 7 MHCR 53. That case arose under Section 12 of the Rent Recovery Act, VIII of 1865, which enabled a tenant eject ed by a land-holder without due authority to institute a suit before the collector to obtain rein statement with damages. The defendant in that suit was the Zamindar of Saptur, in the Ram- nad District, who ejected the tenant who was the plaintiff in the action from lands which the defendant claimed to be his 'pannai' or private lands. The defendant contended that the tenant voluntarily relinquished the lands and that in any event the Collector had no power of interference under Section 12 of the Act in respect of the 'pannai' lands, as in such a case the Zamindar would be the tenant of the lands and the plaintiff would be his undertenant. The Zamindar also raised an alternative contention that 'pannai' lands were not part of the Zamindari and there fore Section 12 had no application. The suit was dismissed by the Deputy Collector as he was of the opinion that the relationship between the plaintiff and the defendant was that of a sub tenant. This decision was reversed by the Civil Judge on appeal. The Civil Judge in his judgment considered the nature of the 'pannai' land. According to him "they are lands to which the proprietor had an exclusive right, that is to say, a right to receive the kudiwaram produce, and the right to receive the melwaram; lands regarding which landholders can arrange their own terms of rent as they can with respect to the waste or unoccupied lands alluded to in para 4 of the preceding section. Sometimes these lands are cultivated under the Zamindar's own ploughs, and sometimes they are let out for cultivation by others." He found that the lands formed part of the Estate and that under Section 12 of the Act the tenant was entitled to relief as claimed by him. This decision was affirmed by the High Court. Kindersley J. observed in the course of the judgment that the tenure of the tenant was something more than the tenure of an ordinary ryot; and the Zamindar cannot be said to be a tenant of his own lands. Even if the lands had not the incidents of being originally in the hands of the tenant it would not prevent the lessee when such a land was let from being a tenant of the Zamindar. The contrast, therefore, is between the lands which were originally in the hands of the tenants and lands to which the proprietor had an exclusive right, a right to receive the kudiwaram produce and the right to receive the melwaram. This is the distinction recognised as early as 1872 between the two categories of lands in Zamindari. As pointed out by the Civil Judge, it may be that sometimes the 'pannai' lands were cultivated under the zamindar's own ploughs or sometimes they may be let out for cultivation by others. But the essence of the matter seems to be the distinction between the absolute property of the proprietor and lands in which the proprietor has got only the right to receive the melwaram. 21. Besides waste lands, porombokes 'gramanathams', that there are two broad categories of lands in a village is also made clear by the very illuminating and exhaustive judgment of Subramania Aiyar J. in the well-known 'Cheekati' Case 'Cheekati Zamindar v. Ramasooru Dhora', 23 Mad 318. He there pointed out that the presumption of tenancies from year to year obtaining under the English Law has no application to conditions in this presidency where the ryots hold the land under no derivative title but hold them as co-owners with the landholders. The payment made by the ryots to the Zamindar, in the absence of a contract, is regulated by custom in the last resort, as laid down by Section 11 of the Rent Recovery Act. The ryots are entitled to hold the land for an unlimited time so long as they wished to retain it, but, of course, subject to the discharge of the obligations by them incident to the tenure. This applied according to the learned Judge not only to lands in the hands of the ryots but even to lands relinquished by former occupants or which were lying waste from time immemorial. If a ryot takes up the land again his tenure is treated exactly on the same footing as land into the possession of which it was not shown that he was inducted by the Zamindar. He pointed out the distinction between home-farm lands and the ryoti lands. The treatment accorded by the Zamindar to the two categories of lands is entirely different. The learned Judge cited from a 'Nuzvid Case', AIR 1922 Mad 281 the evidence of the 'kurnam' who deposed to the distinction observed in the treatment accorded to the two categories of lands. The ryoti land in the Kistna District is known as 'seri' which in some other Districts is used in an opposite sense meaning private land. For ryoti lands 'seri' pattas are granted for long periods. If a tenant dies the names of his heirs are substituted. If the lands are transferred pattas are granted to the transferees. The lands are alienable by sale and mortgage but in respect of home-farm lands the pattas are different. They are usually for one year with "quit" clauses to vacate the land at the end of the year. Usually 'khats' are taken in respect of the private lands and the home-farm lands are leased out to the highest bidder. The rent in the case of 'seri' land will never vary except when there is conversion from dry into wet and even that with the consent of the tenant. In the case of home-farm lands the transfer of the holding or succession is not recognised. The description given by the karnam of the Nuzvid estate in the earlier case is as stated by the learned Judge whose knowledge of the land tenures in this presidency was intimate and unique is a fair description of what goes on in most zamindaris in this presidency and shows very clearly that "the prevalent permanent form of agricultural holding in Zamindari tracts extends not only to lands held by ryots immemorially but also to what they take up under Zamindars, provided the lands so taken up do not form part of the home-farm lands of the Zamindars." According to the learned Judge, lands which are home-farm lands of the Zamindar may be under his direct cultivation or they may be let to tenants but the treatment accorded as evidenced by the entries in the accounts and in the engagements entered into with the tenants as well as in the incidents is entirely different from that accorded to a ryoti land. 22. The position in Bengal regarding the nature of the private lands seems to be also similar. The expressions there in vogue to describe private lands are usually, 'Khamar, Nij, Nijjote'. 'Nijjote' is from 'Neech' (under) and 'jote' (to plough) that is land reserved by the zamindar and set apart for his own cultivation. According to the other authorities the expression is derived "from 'nij' -- own, and means the lands in the zamindar's own cultivation. The terms denote the ownership of the land as private land, as distinguished from those let out to the tenants. 'Khamar' lands have always been recognised as being in a special and exclusive sense the private property of the zamindar as distinguished from all the rest of the cultivated or cultivable area which may be called 'ryoti' land, and in respect of which the zamindar's rights were merely to receive a share of the produce or an equivalent in money. Under the rules of the Decennial Settlement, 'khamar' was understood to signify lands appropriated to the subsistence of the zamindar and their families. Under the Permanent Settlement regulation no land was recognised as "khamar" which was not such on the 12th of August 1765, the date of the grant of the 'Dewani' and there is no law recognising the creation as 'khamar' subsequent to that date (vide Guha's land Systems in Bengal and Bihar, 1915, at page 432). 23. Before the introduction of the Estates Land Act, 1908 under the common law of the country, therefore, private land was the absolute property of the zamindar he being the owner of the melwaram and kudjwaram which he could cultivate directly or let out to tenants on his own terms and the rights of the zamindar and his tenant to private lands were regulated by contract and by contract alone and not by custom. In ryoti lands the zamindar had only the right to receive the melwaram which is governed either by the contract or by custom as recognised under Section 11 of the Rent Recovery Act. He could not ordinarily enhance the rent and the rent had to be determined when there is a dispute in accordance with the principles laid down by Section 11 of the Rent Recovery Act. He had no right to eject the tenant though the tenant was at liberty to relinquish the land. But notwithstanding the relinquishment the character or nature of the land remained unaltered. There was the duty to exchange the pattas and muchilikas and the mode of enforcement of pattas and mulchilikas was also prescribed by the Statute. Cultivation therefore by the zamindar of private lands was not treated and recognised as the sole or exclusive test by which the character of private land could be determined. 24. In order to see whether any change was introduced in this behalf by the Estates Land Act of 1908, it is necessary to examine the provisions relating to the private land. Section 3(10) of the Act contains the definition of private land. "Private land" means "the domain or home-farm land of the landholder by whatever designation known, such as 'khambattam', 'khas', 'sir', or 'pannai'. "Khas" and "sir" are not so far as I am aware in vogue in this presidency to denote private land. The Act was somewhat modelled on the Bengal Tenancy Act and some of the expressions were borrowed from the corresponding section of the Bengal Tenancy Act. Even there the word "khas" does not occur in the section. Section 3(16) contains the definition of "ryoti land" which excludes private lands and also tank-beds thrashing floors and other communal lands and lands granted on service tenure. Section 8(3) provides that the merger of the occupancy rights under Sub-sections (1) and (2) of that section shall not have the effect of converting ryoti land into private land. Section 19 excludes from the purview of the Act the relations between a land-holder and his tenants of private land which implies that private land could be let to tenants. Section 134 extends the provisions of the Act relating to the recovery of rent by distraint and sale of movable property, to the recovery of rent by the land holder from a tenant of his private land in the estate provided pattas and muchilikas have been exchanged between them, which is also a clear indication that not only the landlord is entitled to let the private land to tenants and need not necessarily keep it always under his cultivation but that even pattas and muchilikas as denned by the Act could be exchanged in respect of such lands to enable the landholder to enforce payment of rent by distraint and sale of movable property. Of course, the sale of the holding is not possible in such a case as the tenant had no interest at all in the lands as in the case of a ryoti land. Lastly, there is chapter XII relating to private lands of the landholder. Section 181 (before amendment in 1934) excluded the operation of Sections 6, 8, 10, 11, 12 and 46 of the Act to private lands and stated that: "Nothing contained in these sections would confer a right of occupancy on the tenants of private lands." The landholder's right to convert private land into ryoti is recognised by the proviso to the section. Provision is made in Sections 182, 183 and 184 for recording private lands & Section 185provides rules for the determination of the landholder's private land. This section was subsequently altered in 1934 and 1936 but the unamended section was as follows: "When in any suit or proceeding it becomes necessary to determine whether any land is the landholder's private land, regard shall be had to local custom and to the question whether the land was before the first day of July 1898, specifically let as private land and to any other evidence that may be produced, but the land shall be presumed not to be private land until the contrary is shown: Provided that all 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 twelve years immediately before the commencement of this Act shall be deemed to be the landholder's private land." The Act, therefore, recognises two categories pf lands in the estate. Ryoti land in which the tenant who was then in possession or was let into possession subsequently automatically acquired a right of occupancy in the land. Under Section 8 acquisition of occupancy right by the landholder by the modes indicated in that section has not the effect of converting what was once ryoti into private land. The tenant of a private land has no heritable or transferable right as in the case of ryoti land under Section 10 and he has also no right to use the land in his lease in any manner he pleased. Nor has he any right to the trees in the holding. This is the effect of excluding the applicability of Sections 6, 8, 10, 11 and 12 by Section 181 to private land. Section 46 which is also excluded provided for the acquisition of occupancy right by non-occupancy ryot as defined under the Act but this distinction between occupancy and non-occupancy ryot in ryoti land which was old waste and ryoti land which was not old waste has been abolished by the Amending Act, 1934. There, is no mode recognised by the Act by which a tenant of a private land could acquire occupancy right except under a grant by the landholder. Their relations are entirely governed by the contract between them. 25. After the Act the question of determining whether the land in suit is private land or ryoti land came up for consideration in several decisions before the Act was amended in 1934 and 1936. The definition of "private land" did not give any clear indication of the essence of private land. It merely stated that private land means the domain or home-farm land of the landholder -- whatever be the description by which the land was known, whether it was styled "khambattam, khas, sir, or pannai. The Act did not define anywhere the words "domain" or "home-farm" land. When we turn to Section 185 which contains rules for determination of the land-holder's private land some light is thrown on the question. Under the proviso to that section there is one definite and conclusive test to determine the land-holder's private land; and that test is the proof that the land was cultivated as private land by the land-holder himself by his own servants or by hired labour with his own or hired stock for a period of twelve years immediately before the commencement of the Act. It requires therefore proof of cultivation of the land. If that is proved then the land is deemed to be private land whether in fact it was private or not. Even if it was once known to be ryoti according to this test of continuous cultivation for twelve years it is open to the land-holder to convert what was once ryoti into private land. Even if it was ryoti land at sometime, if he proved continuous cultivation within the meaning of the proviso, that is also a mode by which the land could be established to be private land. The proviso applied to cases where the origin of the land or the nature of the land was known to be ryoti and to cases where the origin was not known. 26. But what if the land-holder is unable to prove continuous cultivation and the nature of the land that it was ryoti or private is not known? In such an event resort must be had to the body of the Section 185. Three tests are provided under this part of the section. One is local custom, the second is whether the land was before 1st July 1898, specifically let as private land and the third is any other evidence that may be produced. Here again the three rules are not definite in themselves and create difficulty in gathering the intention of the legislature. By local custom, as I understand it -- and the legislature must have had in mind -- is meant the usage in the village of the estate whereunder the lands which were dealt with in a particular manner were recognised by the community or by the tenants as lands in which they could acquire no occupancy rights by usage or custom and which are in the absolute disposal of the land-holder. The treatment by the zamindar in his estate accounts giving separate patta numbers, exchanging pattas and muchilikas or obtaining 'khats' for short periods with surrender clauses and leasing it to tenants at varying rents and changing tenants from time to time may be a usage which distinguishes ryoti land from private land as pointed out by Subramania Aiyar J. in the 'CHEEKATI CASE', 23 Mad 318. In some cases it may be that in respect of private lands the zamindar always leased out the land on sharing system while all the other ryoti lands were let out for definite money rents. All this applies of course when we start, with no knowledge that the land was once ryoti. The section next refers to specifically letting of private land before the first day of July, 1898, that is, the date on which the first Estates land Bill was introduced. What is meant by specifically letting as private land is by no means clear. Is it meant that in the leases the landholder should describe the land as private land and let it as such? Or placing the emphasis on the word "let" that the letting must be on terms which differed entirely from the terms of letting of ryoti land? Perhaps it is meant to include both. Thirdly, it refers to any other evidence that may be produced. What exactly is the nature of the other evidence that is contemplated by the section is also difficult to understand. It may be proved that the land holder was cultivating the lands himself or was leasing it to tenants according to his convenience; or it may be proved that the tenants themselves had made admissions in the leases and 'khats' that the zamindar, the land-holder is the absolute proprietor of the land in question. It may be that in recognition of his ownership of the kudiwaram interest he was levying from the tenants more rent which is described by various terms such as 'swami bhogam', etc., over and above the melwaram that is payable to him. It is significant that while under the proviso direct cultivation by the land-holder is insisted upon as the sole and exclusive test to determine that the land is private land in none of the three categories of evidence contemplated by the body of the section this test was specifically adopted. 27. There was some conflict of opinion both under the corresponding provision of the Bengal Tenancy Act and in Madras as to whether leases subsequent to 1st July 1898 could at all be considered to determine the question whether the land is private land or not. Sadasiva Ajyar J. in 'Lakshmayya v. Varadaraja Apparao Bahadur', 36 Mad 168, at p. 185 was of the opinion that under Section 185 of the Act leases granted on the 1st July 1898 are wholly shutout as evidence either for the purpose of proving the character of the tenure of the land or even to show that the land was treated in the same manner after July 1898. (Sundara Aiyar J. was of a different view). This was also the view of Wallis and Ayling JJ. in 'Chintam Reddi v. Appalanarasimha', 1914 MWN 766, and of Venkatasubba Rao J. in 'Veerabadrayya v. Zamindars of North Vallur', 50 Mad 201, at p. 214. But this view was not shared in by Abdur Rahim and Oldfield JJ. in 'Appurow v. Kaveri', 7 Mad L W 271, who ruled that an admission of the land-holder's title contained in a document executed by a tenant after 1st July 1898 is admissible to prove the character of the land and it was not excluded by the provisions of Section 185. They followed the view of Sundara Aiyar J. in 'Lakshmayya v. Varadaraja Apparao', 36 Mad 168, and dissented from the view of Sadasiva Aiyar J. The question in my opinion has now been set at rest by the Privy Council in 'Bindeshwari Prasad v. Kesho Prasad', 5 Pat 634 (PC), a decision under Section 120 of the Bengal Tenancy Act, the language of which is in 'pari materia'. It was there held that admissions in the 'kabuliat' regarding the character of the land after March 2, 1883, which is the date fixed under the Bengal Act, were admissible evidence regarding the character of the land. I shall have occasion to deal with this decision more elaborately later but it is sufficient now to refer only to this point which was settled by the Judicial Committee, (see also the observations of Gentle. C. J. in 'Bandharu Jogi v. C. Seetharamamurti', ILR (1948) Mad 223, at pages 246 and 247 FB). 28. The policy underlying the Act is that the Zamindar is not entitled to increase the extent of his private land by encroaching upon the ryoti land and converting it into private land. He cannot obviously do so after the coming into force of the Estates Lands Act in 1908. On the question whether he could do so retrospectively there was a difference of opinion in this Court between Sir John Wallis C. J. and Seshagiri Aiyar J. in the 'Chellapalli Case' 'Zamindar of Chellupalli v. Rajalapati Somayya' 39 Mad 341. The only extent to which under the Act retrospective conversion was permitted is under the proviso to Section 185 by the land-holder proving that he had continuously cultivated the land himself or through his servants for a period of 12 years before the commencement of the Act. Under Section 8(3), the mere merger did not bring about a conversion of ryoti land into private land. If the merger was followed however by continuous cultivation for a period of 12 years before the commencement of the Act, it would be open to the land-holder to claim that the land is private land notwithstanding that it was once ryoti. This was the view of Seshagiri Aiyar J. in the 'CHELLAPALLI CASE', 39 Mad 341. The Privy Council did not resolve this conflict when the decision in the 'CHELLAPALLI CASE', 39 Mad 341, was taken up in appeal in 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 (PC). Since the decision in the 'CHELLAPALLI CASE', 39 Mad 341, the view of Seshagiri Aiyar J. was followed in 'Mallikarjuna Prasad v. Subbiah', 39 M L J 277, by Abdur Rahim and Burn JJ. and by Sadasiva Aiyar J. in the 'Zamindar of Nuzvid v. Lakshminarayana', 45 Mad 39. The opinion 'of Sir John Wallis C. J. was followed by Krishnan' and Venkatasubba Rao JJ. in 'Veerabadrayya v. Zamindar of North Vallur', 50 Mad 201, at page 214. 29. In this state of conflict the question came up for consideration before a Full Bench in Bandharu Jogi v. C. Seetharamamurti', ILR (1948) Mad 223 (FB), which upheld the view of Seshagiri Aiyar J. in 'CHELLAPALLI CASE', 39 Mad 341. The effect of the Full Bench decision then is that even if the land was shown to be ryoti land at some remote past, it is not open to the land-holder by proving either letting it to tenants as his absolute property or by any other means to show that he has since converted the land into private land after acquiring the kudiwaram interest in such land except by establishing that for a continuous period of 12 years prior to the commencement of the Act, he cultivated the land himself. In other words, the land-holder is not permitted to increase the extent of his private land even prior to the Act except by showing continuous direct cultivation for a period of 12 years. The test of cultivation is the sole and exclusive test in the case where the land is known to be ryoti. Even if the land is not known to be ryoti and its character is unknown if the landlord is able to establish his continuous cultivation for a period of 12 years before the commencement of the Act, the conclusion may be reached that the land is private land. So far, the position is perfectly clear and is well settled. 30. If the character of the land is not known what are the essential characteristics of private land and what is the nature of proof required to establish that the land is private land when the landlord is not able to prove continuous cultivation for a period of 12 years? Is it necessary even in such a case to prove that the land-holder cultivated the land personally though not continuously and that he always retained his intention to resume cultivation or is it enough to show that by usage and treatment the land was recognised as private land? Some of the observations in the judgments of this Court lend support to the view that without proof of cultivation at some time and without proof that the land-holder intended to resume cultivation even though he had let the lands now and then, it is impossible to establish that the land is private land. This is the position that is taken up by the learned Advocate for the appellant in these cases and has given room for attacking the finding of the Courts below that the land has been proved to be private land. 31. An examination of the decisions which I propose to do presently, would establish that the test of cultivation and intention to resume cultivation is not the only mode by which the land could be proved to be private land. The essence of private land as understood before the Estates Land Act and under the provisions of the Act in my opinion as I have indicated already is that the land is the absolute property of the zamindar in which the tenant is not entitled to acquire occupancy right except by a grant and not by mere letting into possession. By the amending Act, 1934, the proviso to Section 185 was transferred to the definition in Section 3(10) of the Act, and is divided into two parts Clause (a) and Clause (b); and it was further altered by Act XVIII (18) of 1936 and as the section now stands, Clause (a) applies to private lands in estates specified in Sub-sections (a) and (b), (c) or (e) of Clause (2) of Section 3 and Clause (b) applies to estates within the meaning of Sub-clause (d) of Clause (2) of Section 3. As we have held that the suit village is an estate under Section 3(2)(e) the definition in Clause (a) of Section 3(10) is applicable to the present case. The amendments of 1934 and 1936 have also altered Section 185 and here again the division is between the rules applicable to estates under (a), (b), (c) or (e) of Clause 2 of Section 3 and estates in Sub-clause (d) of Clause (2) of Section 3. There is no substantial variation in Section 185which contains rules of evidence, except that the old proviso is omitted and is transferred to Clause (10) of Section 3 as Sub-clause (a). By continuous cultivation for a period of 12 years under the present definition the land is not deemed but is treated as private land. That is also a change effected by the amendments. The omission, therefore, of the old proviso in Section 185 is also an indication in my opinion that the test of cultivation is not required where the origin of the land is not known. When the proviso formed part of Section 185 the argument was advanced in the 'CHELLAPALLI CASE', 39 Mad 341, that the existence of the proviso was an indication that cultivation though not continuously for 12 years at some time or other is indicated but there was no room for such a suggestion or contention as the proviso is now altogether omitted from Section 185. In none of the clauses in Section 185 is cultivation insisted on to prove the character of the land. It is therefore difficult to see on what basis the test of cultivation in cases falling under the first part of the definition is insisted on. The attempt in some of the decisions is to deduce the test from the use of the expressions 'kambattam, khas, sir and pannai' in the definition and also from the words domain or home-farm land. The words "domain" and "home-farm" lands are not defined in the Act. Wallis C. J. in the 'CHELLAPALLI CASE', 39 Mad 341, adopts the dictionary meaning of the word as given by Webster citing Shemtore. According to Webster it means "the land about the mansion home of a lord and in his immediate occupancy." Seshagiri Aiyar J. in the same case quotes from the Encyclopaedia Brittanica, Vol. III (3) : "Domain" as synonymous to "Demesne" and is explained in the Encyclopaedia Brittanica as follows: '"Demesne -- (Domeine, Demain, Domain etc.) that portion of the land of a manor not granted out in the freehold tenancy, but (a) retained by the lord of the manor for his own use and occupation, or (b) let out as tenamental land to his retainers or "villani." The domesne land originally held at the will of the landlord, in course of time came to acquire fixity of tenure, and developed into the modern copyhold. It is from domesne as used in sense (a) that the modern restricted use of the word comes, i.e.," land immediately surrounding the mansion or dwelling house, the park or chase." The modern restricted use of the word as given in the Encyclopaedia was accepted by Seshagin Aiyar, J. and he concludes that the private land is confined to the lands surrounding the mansion or dwelling house of the Zamindar. As observed by Viswanatha Sastri J. in a recent case 'Pentakota Narayudu v. Venkataramamurti', 1949-2 Mad L J 623 to adopt the dictionary meaning of these English words: "as confined to 'land immediately surrounding the mansion or dwelling house, the park or chase of a lord' which would be the dictionary meaning of these English words, is to import feudal ideas of medieval England into a system of land tenure in this country without adequate justification. The English draftsman of the Bill which afterwards became the Madras Estates Land Act as well as the English Revenue Member of the Executive Council of the day who piloted the Bill through the legislature employed the expressions "domain" and "home-farm" as the nearest English equivalents of the tamil and telugu words "Pannai", "Khambattam" "Seri" etc. It is all very well when talking of the demesne lands of an English Duke or Marquis to use the term as denoting land appurtenant to the mansion of the lord of the manor. The manorial system was not prevalent in this country. Zamindars lived in cities and forts for reasons of security and their private lands were not confined to the vacant spaces surrounding their palaces or residence. It is a farfetched construction to impute to the Madras Legislature an intention to incorporate the English conception of "demesne land" as a test for differentiating the public domain from private land in a zamindari." 32. I respectfully agree with this criticism of the learned Judge and I do not interpret the words in the Act in that restricted sense. In fact, in the arguments before us no attempt was made to restrict it in the manner in which it was done in the 'CHELLAPALLI CASE', 39 Mad 341. In referring to the origin of these private lands I have attempted to show that the grantors of private lands took pains to see that the lands were dispersed throughout the District in order to secure effective superintendence by these zamindars over the various places in the District. There is no reason, therefore, to restrict the private lands to lands surrounding the residence of the landholder. One's experience of these zamindars shows that these private lands are distributed and are to be found in each village comprised in an estate. If there were 150 villages private lands were very often to be found in the most of the villages or at least in a major number of the villages. This is what obtains in the Northern Sirkars and also in the Southern Districts. The framers of the Act could not have been ignorant of this simple fact when the definition was framed. In fact even Mr. Forbes who piloted the bill in the Legislature did not explain the terms in the manner in which it is now sought to be construed. As even in the arguments before us this restricted meaning of the term is not insisted upon, it is not necessary to pursue it further. Even the word "home-farm" is not defined in the Act and in some of the decisions from this expression it was concluded that it must be the land which at some time or other was under the direct cultivation of the land-holder or at any rate even if it were let to tenant he intended to resume cultivation. This conception of home-farm land is negatived and there are clear indications in the Act itself to show that that was not the intention of the Legislature in using these expressions. Section 19 and Section 134 of the Act clearly contemplate leasing of the land to tenants by the landholder of his private land and even exchange of pattas and muchilikas are permitted which negatives the idea of cultivation by himself. Further, the very classification of the lands into two categories, lands in which occupancy rights could be acquired under the statute and lands in which occupancy rights could not so be acquired is a clear indication that the test to determine is not cultivation but the nature of the land at its inception and also the subsequent treatment accorded to it by the landlord and by the tenants of the village. The decision in 'NAGASAMI KAMAYA NAICK v. VIRAMASAMI KONE', 7 M H C R 53 and 'CHEEKATTI CASE', 23 Mad 318, clearly bring about the essential distinction between the two categories of land and it is that that has to be established by the evidence. Of course, it does not shut out proof of cultivation and ordinarily cultivation may be a proper and even a good test but it cannot be sole and exclusive test to determine the nature of the land. 33. The attempt on the part of the learned advocate for the appellant is to deduce from the use of the expressions 'kambattam', 'khas', 'sir', or 'pannai' in the definition that in order to constitute the land in an estate a private land, it should be the land which the land-holder himself cultivated and cultivation at some time or other must be proved. This it is claimed is derived from the meaning of the expressions used. The definition says that private land means "the domain or home-farm land of the landholder by whatever designation known, such as 'khambattam' etc". It does not say that the land would be private land if it is 'khambattam', 'khas', 'sir' or 'pannai' or if it is known to be such. These words are not explanatory of home-farm land as is evident from the expression by "whatever designation known" all that is stated is that the land goes by the name of those expressions 'khambattam' etc. Under the corresponding section of the Bengal Act, Section 120 in Clause (a) it is stated that private land is "land which is proved to have been cultivated as kamar, zirat, etc." by the proprietor himself with his own stock or by his own servants or hired labour for 12 continuous years immediately before the commencement of the Act. This definition insists cultivation as 'kamar' etc., and corresponds to the second part of the definition in the Madras Act which requires continuous cultivation for a period of 12 years immediately before the commencement of this Act. The first part therefore does not mean that it should have been cultivated as 'kambattam', 'khas', 'sir' or 'pannai'. Under the second part of Section 120 (b) of the Bengal Act, private land is cultivated land which is recognised by village usage as proprietors, 'kamar', 'zirat', 'sir' etc. The expression by whatever designation known in the definition in Section 3 (10) must have reference to a recognition in the village as 'kambattam' etc. The attempt on the part of the learned advocate is to make these words and their import as defined by Wilson in his Glossary, the essence of the definition and deduce therefrom that proof of cultivation of the lands is the sole test for determining private land. I am not prepared to read the section in the manner suggested by the learned advocate for the appellant and whatever may be the meaning to be attached to these expressions at present the definition has not made the meaning of those words the essential part of the definition. "Kambattam" according to Wilson's Glossary at page 254 is used in two senses. One is cultivation which a cultivator carries on with his own stock, but by the labour of another, the other is the land which a Zamindar, Jagirdar, or Inamdar keeps in his own hands, cultivating it by labourers, in distinction to that which he lets out in farm. 'Khas' applies according to that Glossary to lands held by zamindars and cultivated by themselves for their own benefit. "Sir" is the name applied to lands in a village which are cultivated by the hereditary proprietors or village zamindars themselves as their own especial share, either by their own labourers and at their own cost, or by tenants at will, not being let in lease or farm; these lands were sometimes allowed to be held at a favourable assessment, or were unassessed so as to provide 'Nankar', or subsistence for the proprietor. The term is also sometimes applied to lands cultivated on account of the state, or to those in which the revenue is paid by the cultivators without any intermediate agent. "Pannai" at page 398 means a field, a rice field; cultivated ground; tillage, husbandry". The two expressions "khas" and "sir" are not in vogue in this presidency so far as my knowledge goes. "Pannai" as defined by Wilson does not import personal cultivation by the zamindar. The only two words that are used in this presidency are therefore 'kambattam' and 'pannai'. The word "kambattam" is used in a general sense also to denote a man's personal cultivation. It is difficult to infer from the meaning of these words as given by Wilson in 1855 that the words have the same meaning and must be understood in the same sense even at the present day or at any rate in 1908 when the Estates Land Act used that expression. As regards "pannai" as pointed out by the Civil Judge in 'NAGASAMI KAMAYA NAIK V. YIRAMA-SAMI', 7 M H C R 53, already referred to it is used to denote land in which the tenants acquired no occupancy rights. It is therefore not possible to infer from these expressions particularly from the meaning as given by Wilson in 1855 that these words have the same meaning and have the common feature of personal cultivation of the lands by the land-holder (see also the meaning of the words as given by Baden Powell cited above). When in the second part of the definition the Legislature definitely insisted upon the test of continuous cultivation, to determine whether a given land is private land or not it is difficult to see if the intention of the legislature even in the first part was to insist upon test of cultivation why it did not expressly say so. The reason is according to me that these lands in estates have acquired a different character by reason of a continuous course of treatment and could easily be ascertained by reference to the documents such as village accounts, pattas and muchilikas and the other mode or manner in which the land-holder enjoyed these lands whether the lands were or were not private lands. The same idea is contained in the Bengal Act. In the village the tenants know with certainty which lands are private lands and which lands are ryoti lands in which they acquire occupancy rights. It is therefore difficult to infer from the first part of the definition that cultivation is the test and is the exclusive test and the sole test for determining the nature of the land. Further, this view receives support from Section 185 which deals with evidence. If what is to be established under the definition is cultivation, it is difficult to understand why the Legislature permitted specific letting before 1898 as a test or as admissible evidence to prove the character of the land. The idea of letting is diametrically opposed to the idea of cultivation. Again local custom which is permissible under the first clause of Section 185 is also unnecessary and could not afford evidence of proof of cultivation. If according to the usage in the village the land was recognised as private land that is also a factor which goes to establish according to the section that the land is private land. The only clause under which cultivation may be proved is under Clause (3) of Section 185 which contemplates any other evidence that may be produced. Reading therefore the definition with Section 185, it is impossible to infer from the definition of the first part that the legislature intended to lay down the test of cultivation as the sole and exclusive mode of determining the character or nature of the land. 34. This leads me to a consideration of the decisions reported and unreported which have been placed before us in the course of arguments by either side. The decision in 'Lakshamayya v. Varadaharaja Apparao,' 36 Mad 168 is a decision relating to the Nuzvid estate of which the Gannavaram estate was a part. The suit was instituted by the Zamindar to eject the defendants from certain lands in a village which he claimed to be soverum or private lands in which he possessed both the kudiwaram and the melwaram rights. The defendants, the tenants, denied the right of the plaintiff to kudiwaram and claimed occupancy rights in the lands and contended also that the civil Court had no jurisdiction to entertain the suits as the lands were not private lands but were ryoti. The tenants were successful in the first Court, but on appeal the District Judge reversed that decision holding that the lands were the private lands of the Zamindar in which he owned both the warams. He relied upon the use of the words "soverum" in the accounts and in some of the muchilikas which according to him indicated that the Zamindar was the owner of both the warams. There was also other evidence which established that the Zamindar treated the lands on a different basis from "seri" or ryoti lands in his estate. In the survey of 1870 the two classes of lands were differently numbered and in the accounts the zamindar was shown as owner of the lands and not the cultivating tenants. The pattas of 1897 contained express admissions by the tenants that the lands were "soverum" lands & that they had no jeroyati or occupancy rights. The Zamindar also paid the water rates himself while in the case of "seri" lands or ryoti lands, the water cess was collected by the Government directly from the ryots. There was an assertion by the zamindar in 1892 that the lands were private lands and the ryots admitted the full proprietary right of the zamindar in the lands. From this evidence the District Judge concluded that the lands were private lands. There were second appeals by the ryots against the decision of the District Judge. The main argument on their behalf was that the interpretation of the word "soverum" given to it by the District Judge that it comprises both the warams was not correct and this argument found favour with the learned Judges, Sundaram Aiyar and Sadasiva Ajyar JJ. who heard the appeals. "Soverum" denoted either the ownership of both the warams or of melwaram alone and so the use of the word in the documents was inconclusive to establish the ownership of both the warams by the zamindar. The learned Judges, however, were of opinion that this error on the part of the District Judge did not vitiate the finding as there was undoubted evidence afforded by the treatment of the lands by the Zamindar, and the admission of the tenants that they had no occupancy rights in the land. On the basis of this evidence, the finding of the learned District Judge was upheld by the High Court and the appeals were dismissed. Sundaram Aiyar J. at page 172 adverted to the origin of private lands and observed: "Sometimes the zamindar was a descendant of a royal family that enjoyed demesne or private lands and remained in possession of them after the family ceased to exercise sovereign powers, but continued to have zamindari rights under the Muhammadan rulers. The holder was allowed to retain these private lands as compensation for services rendered by him to the State and partly also in consideration of his being responsible for the collection and payment of the State revenue. The private land in his own occupation was itself exempt from the payment of any revenue." This description of the origin of private lands agrees with what was stated in the fifth report and by Baden Powell. The learned Judge treats private land as equivalent to "demesne" lands and what is more significant is that the inference of the lands being private was drawn from the treatment and the conduct of the parties in respect of the land extending over a long period of years. The treatment referred to is the mode of dealing with the lands as separate from ryoti lands in the survey and also in the village accounts. Admissions by the ryots before 1898 were also taken into consideration to determine the character of the land. There is no proof in that case that the lands were ever cultivated by the Zamindar nor was there any specific reference to an intention to resume cultivation at any future date. The case definitely falls under the first part of Section 3 (10) and is clear authority for the view that there may be other modes of proof other than cultivation by which an inference that the lands were private may be drawn. This decision it must be mentioned was never questioned or disputed or doubted in this Court and is good law. The decision was pronounced by two eminent Judges who had considerable experience and intimate knowledge of land tenures of this presidency and is entitled in my opinion to the greatest weight. The decision in 'Arthorama Pahu v. Arthopadhi, 25 Mad L J 248, is also a claim by a purchaser from a zamindar lands which were claimed to be private lands." All that is stated in the course of the judgment at page 250 is that the burden of proving that the lands are home-farm lands is on the Zamindar or his representatives. This is clearly laid down by Section 135 of the Estates Land Act; and then it is added that "the question of possession, that is, whether the zamindar had been in direct possession through his private servants is the most important fact to be considered in such cases". This decision is not an authority for holding that cultivation is the test. 35. There are two decisions in 'Chitam Reddi v. Appalanarasimha', 1914 Mad W N 766, and 'Markapulli Reddiar v. Thandava Kone', 1914 Mad W N 798, which have been referred to but they do not throw any light on the question under consideration. 36. I now come to the decision in 'Zamindar of Chellapalli v. Rajalapati Somayya', 39 Mad 341, on which strong reliance was placed by the learned advocate for the appellants and which is the basis in the later decisions for holding that the test of cultivation or at any rate an intention to resume cultivation at a future date should be applied. In that case the lands were definitely proved to be ryoti lands to start with. The Zamindar was not able to prove continuous cultivation for a period of twelve years before the commencement of the Act. He relied upon the treatment of these lands in his accounts and also admissions in muchilikas executed by tenants in proof of the conversion of the lands from ryoti into private. Both the learned Judges agreed on the question that even assuming that retrospective conversion was permissible under the Act such conversion could be proved by other means than that of cultivation for a continuous period of 12 years prior to the commencement of the Act. Both the learned Judges agreed on the finding of fact that the Zamindar failed to prove conversion even by such evidence. Seshagiri Aiyar J. took the view that retrospective conversion was not permissible except to the extent to which it was recognised by the proviso to old Section 185 which is now the second part of the definition in Section 3 (10). Wallis C. J. differed from that view. In the result both the learned Judges agreed in holding that the lands were not shown to be private lands. The discussion by Wallis C. J. of the question whether actual conversion from ryoti into private land has been established by the evidence commences at page 345. He starts the discussion by formulating the question that it is necessary in order to prove actual conversion from ryoti into private land, there should be very clear and satisfactory evidence; and then he proceeds to examine whether the evidence adduced in the case was sufficient for the purpose. The learned Judge adverts to the attempt of the Zamindars after 'Chockalingam Pillai v. Vythealinga Pundara', 6 M H C R 164, to introduce in pattas and muchilikas clauses negativing the existence of occupancy rights and to achieve this object they very often introduce the description of the lands as Kambattam or home-farm lands even though the lands were never cultivated by the zamindar and he had no intention of so cultivating it. He also pointed out that the Zamindar in that case increased the extent of his private land from what it was in 1936 namely 102 acres to about 800 acres by the date of suit which is definite evidence that the Zamindar was endeavouring his level best to withdraw public land and convert it into private land so as to prevent acquisition of occupancy rights by the ryots. It was found that the lands were always cultivated by the tenants. The learned Judge observed at page 346 that it was necessary for the Zamindar to establish that the lands were at some time domain or home-farm lands and the acquisition of kudiwaram right by the zamindar at a subsequent date would not by itself have the effect of converting what was once ryoti into private land. In that connection he observed at the bottom of page 346: "It does not seem to me that calling the lands kambattam and letting them on terms which negative occupancy right with a view to prevent the assertion of such right is sufficient to convert them into private lands within the meaning of the definition." In other words, the sentence in the context means that if the zamindar once knew the nature of the land to be ryoti, by mere introduction of the description of the land as 'kambattam' in pattas and muchilikas which in the very nature of things must be a colourable description would not convert the land into private land. It must be remembered that even according to the proviso to Section 185 the only test that is permissible to prove conversion of what was once ryoti into private land is the test of cultivation. Having this in mind I should think the learned Judge observed at page 347: "The Subordinate Judge has found and I agree with him that the suit lands were never cultivated by the zamindar as part of his home-farm lands, and it seems to me that his treatment of them as 'kambattam was merely colourable for the purpose of defeating the occupancy rights of the tenants. In some parts of India lands of this kind are known as 'sir' lands, and this is one of the terms mentioned in the definition. In Budley v. Bukhtoo', 3 N. W. P. H. C. R. 203 it was held that 'sir' land is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. I think that this test may well be applied here, and that, as the plaintiff has failed to satisfy it, the appeal fails and must be dismissed with costs." This paragraph is the foundation for the argument of the learned advocate for the appellant in the present case and is also responsible for some of the observations in the later cases for concluding that the test to determine the character of the land and the sole test is proof of cultivation by the zamindar himself and proof that he intends to retain or resume for cultivation by himself even when from time to time he demises it for a season. The learned Judge was called upon to decide the question as to what should be established in order to prove conversion of the land into private land. He was not called upon to decide upon the language of Section 3(10) the essentials as to what constitutes domain or home-farm lands. Reference to colourable description in the pattas and muchilikas of the lands as 'kambattam' is a clear indication that what the learned Judge had in mind was what was definitely known to be ryoti land and not a case where the character of the land is unknown and for the first time the Court is called upon to determine its nature on the evidence adduced. In the last sentence in the paragraph extracted above the learned Judge is careful enough to say that "this test" that is, the test of cultivation and the intention to retain may well be applied here, that is in the present case, in which the question of conversion and conversion alone is under consideration. In my opinion this passage cannot be treated as an authority for the interpretation by the learned Judge of Section 3(10), Seshagiri Aiyar J. after referring to "domain" or "home-farm" land at page 350 refers to the proviso and observes: "The object of the proviso is to enable the landlord to say that although the land was 'seri', he has by his own servants, or by hired labour cultivated the land for 12 years preceding the Act and that consequently it should be regarded as his home-farm land. An irrebuttable presumption should be drawn from such a conduct. If one remembers that a home-farm land is that which has been ordinarily cultivated personally by the landlord at the outset, the meaning of such a reservation in favour of the landholder will be apparent. This conclusion carries out the scheme of the legislature which seems to be opposed to the augmentation of the private land of landholders, except in the special instance mentioned in the proviso to Section 185." The learned Judge here uses very guarded language and says that home-farm land is that which has been 'ordinarily' cultivated personally by the landlord at the outset, thereby implying that it need not necessarily be always under cultivation and that at the time of the determination of the question there should have been proof that there was cultivation and the reservation in the proviso to old Section 185was intended to benefit the landholder to the extent of the cultivation which he continuously carried on at or about the time of the commencement of the Act. It is somewhat curious that the decision in 'BUDLEY v. BUKHTOO', 3 N.W.P.H.C.R. 203 which is referred to by Sir John Wallis, in his judgment is also a case of attempted conversion of land in the occupation of cultivating tenant into 'sir' or 'pannai' land. The appellant who was the tenant in that case asserted that the land in his holding was held by him for over 12 years as an ordinary cultivator. The lands were however entered later in the revenue papers as "sir" land. He therefore applied to the Settlement Officer for the correction of the record and for registering him as a tenant with rights of occupancy. This application was opposed by the Zamindar who claimed that the land was his "sir" and had actually been cultivated by him until the preceding year when it was let by his son to the appellant. The Settlement Officer after enquiry found that the case of the tenant was true, that the land was cultivated for more than 12 years by him and that while under his occupation the Zamindar had recorded the land as 'sir' although it was never cultivated by him. He therefore directed that the appellant should be recorded as tenant with rights of occupancy. The Zamindar instituted a subsequent suit contesting the correctness of the decision of the Settlement Officer and claiming that the land was his "sir" land. The Zamindar failed before the Munsif but was successful before the Subordinate judge who reversed the decision of the Munsif dismissing the suit and upholding the contention of the Zamindar as the land was registered in the revenue papers as 'sir' for more than 12 years. There was a further appeal to the High Court which pointed out that the proposition applied by the Subordinate Judge was wholly unsound and that the: "mere entry of land as 'sir' will not make it a 'seer' land. Were this so, it would be in the power of every zamindar to convert the whole of the land of the village into 'seer' by simply recording it as such. Sir land, as we understand it is land, which at sometime or other has been cultivated by the Zamindar himself, and which although he may from time to time for a season demise to shikmees, he designs to retain as resumable for a cultivation by himself or his family whenever his requirements or convenience may induce him to resume it. The Settlement Officer had ruled that seer land must be land which had been cultivated by the proprietor and the Subordinate Judge was in error when he denounced this ruling as erroneous." Just as there was colourable description of the lands in the decision in the 'CHELLAPALLI CASE', 39 Mad 341, in the pattas, negativing occupancy rights of the tenants, in this case also the zamindar got the entries in the revenue records as seer land which of course, would not have the legal effect of changing the character of the land. The test of cultivation, therefore, was applied in both cases to establish conversion of ryoti land into private, The two decisions are not certainly authorities for interpreting the language of the definition. There was an appeal in the 'CHELLAPALLI CASE', 39 Mad 341, to the Privy Council and the decision of the Judicial Committee is 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 (PC). Their Lordships of the Judicial Committee accepted the concurrent findings of fact as to the lands being ryoti which is the opinion of both the Judges, Sir John Wallis, C. J. and Seshagiri Aiyar J. though they differed on the question of law. The Zamindar as pointed out by the Privy Council attempted to prove that by custom the lands were his private lands but failed in his attempt. Their Lordships of the Judicial Committee quoted the passage from the judgment of the Chief Justice just cited above and observed at p. 405 "that the test is obviously suggested by Section 185 of the Act and was rightly applied by the Chief Justice." Upon this observation of the Privy Council the argument was based that the sole test of cultivation as the essence of the definition of private land in Section 3 (10) was accepted by the Privy Council and therefore must be taken as final. In my opinion this proceeds on a total misapprehension of the remarks of the Judicial Committee. The test suggested by Section 185 must necessarily refer to the proviso to Section 185 where alone "cultivation" is referred to. In the three categories of evidence referred to in the body of the section no reference is made to cultivation. Their Lordships, therefore, must have meant when they approved the test laid down by Sir John Wallis C. J. that in order to establish conversion "you must prove cultivation pr intention to retain as resumable for cultivation these lands." They were not considering the definition of private land in Section 3(10). It is a clear case in which to start with the land was known to be ryoti land and Section 185 had no application except the proviso which relates to cultivation for a period of 12 years in which case the land according to the old section was deemed to be private land even though it is known to be ryoti land at its inception. 'Mallikarjuna Prasad v. Subbiah', 39 Mad L J 277, is a case in which the question of conversion of ryoti land into private laud arose for consideration. Both the learned Judges Abdur Rahim and Burn JJ. accepted the view of Seshagiri Aiyar J. that retrospective conversion was not permissible except to the extent recognised by the proviso to Section 185. There was no proof of direct cultivation in that case. Abdur Rahim J. at page 281 states the effect of the decision as follows: "The question what is home-farm land and what is ryoti land within the meaning of this Act has been discussed in a number of cases of this Court and the general conclusion arrived at is that ryoti land is land which is in the occupation of the cultivating ryot in contrast with the home-farm land which the Zamindar is entitled to deal with in any way he chooses by contract without being hampered by the provisions of the Estates Land Act." And then the learned Judge refers to the decision in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, which was confirmed by the Privy Council in 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 (PC), and the test laid therein. The main object of Section 185 was considered as laying down rules of evidence showing whether the land in question is ryoti or private land and that by mere letting out on lease the land which was once ryoti was not enough to convert the land into home-farm land. Burn J. examined the scheme of the Act and at page 291 observed: "The scheme of the Act appears to me to be to divide all cultivable land into two categories (1) private land -- the entire interest in such land is vested in the land-holder. The temporary rights of cultivators of such land are based on contract. They cannot acquire occupancy rights except by the deliberate action of the land-holder. (2) Ryoti land --in all such land two separate interests exist--- the melwaram and Kudiwaram interest-- the former is vested in the land-holder and the latter in the ryot. It seems to me that one, main object of the tenancy law is to preserve these two interests and keep them separate. The kudiwaram interest may be in abeyance but it can never be destroyed. The landholder cannot prevent the acquisition of the right of a ryot. This is so even where a decree had been obtained before the passing of the Act............A land-holder can hold the kudiwaram interest in one case only, i.e. where he possessed it before he became the land-holder -- (Vide Exception to Section 6) and even then the two interests remain separate." The learned Judge construes the decision in 'Zamindar of Chelluppali v. R. Somayya', 39 Mad 341, and 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 (PC), as laying down the test to be applied in deciding whether conversion hag really taken place or not (vide page 293 bottom). Even if there was getting, if there is intention on the part of the lessor to resume direct cultivation the land may be presumed to be private land. 37. The decision in 'Veekabhadrayya v. Zamindar of North Vallur', 50 Mad 201, is no longer good law in view of the decision of the Full Bench in 'Bansharu Jogi v. Seethara Amurti', ILR (1948) Mad 223 (FB). The learned Judges were of opinion that retrospective conversion of ryoti land into private land was permissible under the Act even apart from proof of cultivation for a continuous period of 12 years before the commencement of the Act. The only importance of this decision is in dealing with evidence to determine the nature of the land. Venkatasubba Rao J. points out the distinction between the two species of lands (1) Immemorial 'Kamatam'; (2) lands relinquished by ryots and absorbed into zamindar's kamatam lands. He adverts to the distinction that is kept in the records maintained by the estate between the two categories of lands and the lands in dispute in that case were lands falling under the second category that is lands which were originally ryoti but subsequently added to the Zamindar's private land. On the evidence the conclusion of the learned Judge was that the zamindar has established conversion and with this conclusion Krishnan J. also agreed. There was a specific finding in that case that the Zamindar failed to establish direct cultivation by himself and the question was decided mainly on the documentary evidence in the case. Here again even for inferring conversion the test of direct cultivation was not insisted on. 38. There is the decision of a single Judge of this Court by Madhavan Nair J. (as he then was) reported in 'Chinnarigadu v. Rangayya', AIR (22) 1935 Mad 789, which deals with a case of private land. In that case the land was not known to be ryoti land to start with and the question had to be decided on the evidence whether the land was private land or not. The lands in the village were known as "khas" "khas Bhagayat" which indicated that the lands were cultivated by the zamindars themselves. The learned Judge considers the question as one which falls to be decided under Section 185 of the Estates Land Act, the burden of proof undoubtedly being on the plaintiff, the zamindar. The evidence in the case showed that from 1877 onwards the land was let to tenants and it was not known how it was dealt with prior to that date. There were leases from 1877 to 1891 which contained a description of the land in various ways as 'Kambattam, Samastanam Khanigi' and also contained surrender clauses. The pattas issued to the tenants were described as 'Sagupadi' pattas, in contra-distinction to pattas given to tenants who possessed occupancy rights in the lands. There was a change of tenancy and the rates of rent also varied from time to time, Sometimes rent was collected in kind and sometimes according to the varied cash rate in the village. The ryots were allowed in some cases to continue in possession of the lands from year to year. On this evidence it was held that the finding of the Courts below that the land was private land was justified. Reference was made in the judgment to the 'CHELLAPALLI CASE', 39 Mad 341, and to the test of cultivation by the Zamindar that was laid down in that case. The evidence of direct cultivation was of course lacking in the case but all the same having regard to the dealing by the zamindar of the lands in a manner as he liked, it was held that that was sufficient proof that the land was private land. No doubt in that case it was not contended that the test of cultivation alone is the determining factor but 'CHELLAPALLI CASE', 39 Mad 341, was distinguished on the ground that it related to a land which was originally ryoti and the zamindar attempted to prove that there was conversion. This decision in my opinion establishes that apart from the test of cultivation there may be other modes by which the character of the land may be determined; and in doing so the evidence referred to in Section 185 as permissible evidence may be taken into consideration. The treatment of the land by the zamindar under leases, the terms of which were determined by him at his pleasure and the recognition by the tenants that they had no occupancy rights in the lands were considered as sufficient to warrant the inference that the land was private land. Ryoti lands were treated in a different manner from the private lands. 39. 'Kondayya Rao v. Naganna', 1939-2 Mad L J 778, a decision of Wadsworth J. related to conversion of private land into ryoti under a document by which conversion was brought about. The learned Judge defines at page 781 "home-farm" land as land regarding which the land-holder at least retains an expectation that he will at some not too distant a date use it for his own cultivation and enjoyment. This test, it is claimed, follows from the decision in the 'CHELLAPALLI CASE', 39 Mad 341. The learned Judge, however, in laying down this test does not insist upon proof of direct cultivation at some time or other to establish that a land is home-farm land. A mere intention or an expectation to cultivate it even if it be at a distant date was enough according to the learned Judge to constitute the lands home-farm land. This decision was carried in appeal under Clause 15 of the Letters Patent in 'Kondayya v. Naganna', ILR (1941) Mad 720, which was heard by Sir Lionel Leach C. J....... Venkataramana Rao and Krishnaswami Aiyangar JJ. The majority of the Judges. Krishnaswami Aiyangar J. dissenting, confirmed the decision of Wadsworth J. that the land was converted effectively into ryoti land, as the land-holder sold the kudiwaram right under the document but retained only the melwaram right and they also further held that some of the terms in the sale-deed which were inconsistent with the land being ryoti would not alter the nature and effect of the conversion of the land into ryoti. The only importance of this decision in my opinion, so far as it throws any light in the present discussion, is stated at page 726, by the learned Chief Justice that the essential characteristic of ryoti tenure is the permanent vesting in the tenant of the kudiwaram interest and the permanent retention by the landholder of the melwaram right. It would follow from this definition of the nature of ryoti tenure that if there is no such permanent vesing of the kudiwaram right in his tenant in a particular piece of land and both the rights were retained by the land-holder it would be private land if otherwise the land is not shown to be ryoti land to start with. Krishnaswami Aiyangar J. who dissented from the majority view differed from them and held that a mere conveyance of the kudiwaram interest did not amount in that particular case to a creation of a ryoti tenure in the land conveyed. This decision really lays down the test for determining what constitutes in law a conversion of private land into ryoti which is really the converse of the conversion of ryoti land into private. 40. The next decision which Js of importance is the unreported judgment of Krishnaswami Aiyangar and Somayya JJ. in 'Thiagurajasami Devastanam v. Muthuswami', C. M. A. No. 311 of 1943. The lands in that case were in an inam village which became an estate under the Estates Land Act" (Amendment Act XVIII (18) of 1936); and the sole question for decision was whether the lands in suit were or were not private or home-farm land of the land-holder. 41. It would not be out of place at this stage to advert briefly to the position of an inamdar who owned the kudiwaram in an inam village prior to the Estates Land Act, 1908, and thereafter. Before the Act of 1908, the only question in an inam village was whether the inamdar owned or not the kudiwaram interest in the lands. In many villages the distinction between what was known as private land in permanently settled estates did not obtain. The tenant in the land could acquire occupancy rights either by grant or by prescription. Section 3(2)(d) of the Estates Land Act, 1908, converted some of the inam villages into estates by enacting that if melwaram in a village was granted in inam to a person who did not own the kudiwaram right thereof and if the grant was either made or confirmed or recognised by the Government it was an estate. If the inamdar owned the kudiwaram in the village on the date of the grant the grantee of the melwaram would not be a holder of an estate. In respect of inam villages which became estates under this definition the legislature consciously or unconsciously applied the broad division of the land into private land and ryoti land and an exception was however recognised under Section 8 that if before or after the commencement of the Act, the inamdar acquired the kudiwaram interest in any land comprised in an estate falling within Clause (d) of Sub-section 2 of Section 3 such lands ceased to be part of the estate. It followed therefore that under the old Act even after the date of the grant if the inamdar acquired kudiwaram interest in any particular land whether the acquisition was before the Act or after the Act it did not matter, the land ceased to be part of the estate and therefore ceased to be part of the ryoti land. In such cases it was not necessary for the inamdar to show that in respect of such lands the test in Section 3 (10) of the lands being private is fulfilled in order to prevent the acquisition of occupancy rights in such lands by a tenant who is let into possession after the Act. When we come to the Act of 1936, the situation however was completely altered and inam villages were made estates irrespective of the question whether the grant was of mel-waram alone or not and also irrespective of the question whether the grantee owned the kudiwaram interest at the date of the grant or not. Under the definition of private land in estates falling under Section 3 (2) (d) of the Act, a special definition of private land was embodied in Clause (b) of Section 3 (10); the inamdar or land-holder could prove that the land is private land within the meaning of the definition if he proved continuous cultivation for a period of 12 years either before 1st July 1908 or before the 1st November 1933, but in either case he must further prove that he had since retained his kudiwaram interest without converting it into ryoti land. The first clause of Section 3 (10) (b) is the same as the first clause of Clause (a) of Section 3 (10). Under Sub-clause (b) (iv) a further exception was recognised in the case of lands in which the land-holder had acquired the entire kudiwaram interest in a land before the 1st November 1933, for valuable consideration; but if the purchase was at a sale for arrears of rent, it is further necessary for the land-holder to establish that there was continuous cultivation for a period of 12 years since the acquisition of the land and that he had not converted the land into ryoti. Section 8 (5) recognises a limited right of letting of land in respect of which there is a prior adjudication that the tenant had no occupancy rights which adjudication was before the 1st November 1933, to let the land for a period of 12 years, from the commencement of the Amending Act, 1936 on his own terms. The rules of evidence in Section 185 were also altered as a consequence of the alteration of the definition in Section 3 (10); in the second proviso to that section two Sub-clauses were added. Under the first Sub-clause the expression in a lease or patta of the land executed or issued on or after 1st July 1913 implying that a tenant has no right of occupancy 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 under the second clause such expressions would not by themselves be sufficient for proving the land concerned as private if contained in leases executed or issued before the 1st July 1918. 42. In C.M. A. No. 311 of 1943 the learned Judges had to consider whether the lands in suit were home-farm or private lands within the meaning of the first clause in Section 3 (10) (b), i.e., "domain" or "home-farm" land of the landholder by whatever designation known such as kambattam, khas, sir, or pannai; and it is the same word for word as the first part of the Clause (a). There was proof that the land-holder was the owner of both the warams, but he was not able to establish direct cultivation. The learned Judges held that mere proof that the land-holder was the owner of both the warams would not be sufficient to constitute the land private land. The question had to be decided on the documentary evidence in the case and the other facts established by documents and leases produced in the case. It was argued in that case on behalf of the tenants that the test of actual and direct cultivation by the landholder even though he might let it on leases for some season, or an intention of cultivating it himself should be proved to satisfy the requirements of the definition relying upon the decision in the Chellapalli case, 39 Mad 341. This decision it was held by the learned Judges and the tests propounded therein apply only to cases where the land was admittedly ryoti land to start with and was inapplicable to cases where the character of the land in its origin was unknown. The definition is not confined to lands which are known as khas or sir and they are given only as examples. If the lands are known by these expressions they would be domain or home farm land. But even in the case where these expressions are not shown to have been applied to the lands in dispute it did not follow that by that reason alone they are not domain or home farm lands. If the land is continuously cultivated for a period of 12 years it is unnecessary to go to Clause (i) to determine the character of the land. The very fact that the definition recognises and includes in it lands which are shown to have been cultivated as private lands is a clear indication that there may be other lands which need not satisfy the test of cultivation. The leases in the case established that there was a change in the personnel of the tenants from time to time, the rent was varying and that the tenants had a right only to enjoy the produce from fruit bearing trees other than 'iluppai' trees but had no right to cut them, that the 'iluppai' trees exclusively belonged to the landholder and that the lands were leased out by public auction to the highest bidder. The cumulative effect according to the learned Judges of all these circumstances is to establish that the lands are home farm or private lands. There were also other circumstances showing that the landholder treated himself as the absolute owner of the both the warams and the tenants themselves recognised such ownership in unambiguous terms. This case, therefore, is an authority on the construction of the definition of private land and establishes that apart from proof of actual cultivation or an intention to resume cultivation at a distant date, there may be other tests by which the nature & the character of the land could be determined & that the decision in the 'Chellapalli case', 39 Mad 341 and the tests propounded therein are not the sole and exclusive tests in order to determine whether a land is private or home-farm land or not. The learned Judges held that on the evidence it was established that the lands were private lands. This decision more or less is analogous to the decision in 'Lakshmayya v. Appakao Bahadur', 36 Mad 168 on facts though no reference was made to it. 43. I now come to the decision in 'Jagadeesam Pillai v. Kuppammal', I. L. R. (1946) Mad 687 on which strong reliance was placed by the learned Advocate for the appellant and which was also considered in some of the unreported decisions of this Court. The case related to lands in a village which is part of the Tanjore palace estate. It is an inam village which was an estate under Section 3(2) (d) of the old Act or in any event under Madras Act XVIII of 1936 and the question was whether the lands were private lands or ryoti lands. The Tanjore Palace Estate was by treaty ceded in 1799 to the East India Company by the then Raja, under which the company acquired a right to collect revenue of the lands in the Tanjore country. This was continued till 1855 when the Raja died and the villages lapsed to the East India Company. On representations made by the senior widow of the last Raja on 21st August 1862 after she was unsuccessful in the litigation which was finally disposed of by the Privy Council, the estate was made over to the senior widow. There was again litigation in 1866 between the Ranees when a receiver was appointed by the Court to manage the estate. The village in suit was ultimately allotted to one Subbanandaji Bhonsle Sahib; but the properties were subject to a charge and the plaintiff therein purchased them in auction on 2nd September 1940 in execution of the charge decree. The village of Kudavali which was the subject-matter of the suit was the village proper and has a hamlet called Ponavasal. The earliest 'document in the case indicated that the lands in the village of Kaduveli and its hamlet Ponavasal were ryoti lands in which the ryots had occupancy rights. During the management by the Government in 1860-61, the accounts showed that from the total beriz the melwaram and service manyam melwaram are deducted and the balance was treated as 'miras thunduwaram'. The lands during the period of management of the receivers were leased to tenants but from a document Ex. P. 16 of the year 1873 it appears that the cultivators received an advance for purchasing seeds for wet lands and that the village was "in amani" which term according to the ordinary meaning denotes that the lands were under direct cultivation, though the learned Judge, Wadsworth, O. C. J. expressed a different opinion. There was no other evidence of any direct cultivation of the lands. The effect of confiscation by the Crown of the lands did not affect the rights of the mirasi proprietors. The learned Officiating Chief Justice accepted the interpretation put upon the word "Domain" by Wallis C.J. and Seshagiri Aiyar J. in the 'Chellapalli case', 39 Mad 341, as meaning "land immediately surrounding the mansion or dwelling house, the park or chase" and would connote land appurtenant to the mansion of the lord of the manor, kept by the landlord for his personal use and cultivated under his personal supervision as distinct from lands let to tenants to be farmed without any control from the lord of the manor other than such control as is incident to the lease. The learned Judge further observes : "It seems to us that the Sub-clause (b) (1) of the definition is intended to cover those lands which come obviously within what would ordinarily to 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." I have already shown that this narrow definition of "domain" or "home-farm" land does not fit in with the nature of private land as understood both in Bengal and in this Presidency. Reference was made in the course of the judgment to the unreported decisions of Krishna-swami Aiyangar and Somayya JJ. but the learned Judge differed from the view expressed in that case that' the decision in the 'Chellapalli case', 39 Mad 341 and 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 P. C. were confined to lands which were originally ryoti but which were claimed to have been converted into private land. Apparently from the trend of the reasoning of the learned Judge at page 703 the learned Judge was not inclined to accept this distinction made in the unreported decision. In the opinion of the learned Officiating Chief Justice, Krishnaswami Aiyangar and Somayya JJ. dealt with the definition of private land in a way which was inconsistent with and which was irreconcilable with the decision of the Privy Council in 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 (P. C.). He has however inclined to accept the correctness of the decision in the unreported case on the broad facts and remarked: "but with some of the observations contained in that judgment we must express our respectful disagreement." The learned Judge does not specify the observations to which exception was taken and from which he expressed his respectful disagreement. It is therefore difficult to see on what ground the 'ratio decidendi' of the unreported decision was not accepted by the learned Judge. At page 705 of the report the learned Judge discusses the nature of home-farm land, but from an examination of the discussion by the learned Judge it is by no means clear what exactly is the test which the learned Judge lays down to determine whether a particular land is home-farm land or not. He observed at page 705: "The home farm land is land which the landlord farms himself as distinct from land which he lets out to tenants to be farmed. This first clause therefore is meant to include and signify those lands which are in the ordinary sense of the 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, for instance, lands which are at a distance from the domain or home farm but have been cultivated personally by the landlord for the required period of years, or lands in which the entire tenant's right has been purchased by the landlord from the tenant when the land has never been treated as ryoti land since the purchase; 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 seems to us that the definition read as a whole indicates clearly that the ordinary test for 'private' land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision. No doubt such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character but it does seem to us to be inconsistent with the scheme of the Madras Estates Land Act as amended 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 land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Madras Estates Land Act cannot acquire occupancy rights. It seems to us that there are no materials in the present case to show that these lands have been so cultivated or retained by the land-holder. It is said that they are situated within a mile or two of one of the places in the estate; but they were not in origin home farm lands, before the seizure of the estate from the Raja, and seeing that the estate has been under successive receivers almost continuously since the regrant there is no evidence that the grantee treated these lands as lands kept for his personal use and occupation or cultivated them under his personal supervision. Seeing that the lands cannot come under any other clause of the definition than Clause (b) (1) of Sub-section (10) of Section 3 and having regard to the fact that the presumption is in favour of the ryoti character of the lands, we must hold that the plaintiff has failed to prove that the lands are private lands." In this passage he seems to hold and lay down varying tests. In the first place lands which are far away from the residence of the landholder would not be private lands. He emphasises the distance and adverts to the circumstances that the lands were a mile or two away from the Palace in the estate. Secondly, that home farm lands are lands kept for the landholder's enjoyment and use; and the test of retention by the land-holder of the land for his personal use and cultivation by him under his personal supervision is also emphasised. But at the same time the learned Judge concedes the right of the land-holder to lease out the lands on short term leases, for the convenience of the land-holder without losing their distinctive character. Thirdly, at another place, the learned Judge emphasises the test of cultivation, and fourthly again emphasises an intention to regard the lands as retained for his personal use and that there should also be an origin for home farm lands. If the test is one of intention and if the right to lease the lands is conceded, a land-holder who owns both the warams and has always left the lands on short term leases at varying or fixed rates of rent and also had taken something from the tenant in recognition of his ownership of kudiwaram, it is difficult to see why in such a case an intention to retain the lands for personal use cannot be inferred. The retention of the kudiwaram itself without parting with it in my opinion is clear indication of an intention to resume cultivation even if it be at some distant future date. To restrict the definition to lands "appurtenant to the mansion of the manor" is to overlook the essence of the nature of private land as the history of these lands shows. Sections 19 and 134 of the Act clearly contemplates the leasing of the land to tenants and even the exchange of pattas and muchilikas which is clear indication that the lands need not be shown to have been cultivated at any time. Above all, in the concluding portion of the judgment he emphasises the fact that the lands in suit were not in origin home farm lands before the seizure of the estate from the Rajah. In other words, it means that the lands were shown to be once ryoti and therefore by any possible means they could not be converted into private land except by direct cultivation for a continuous period of 12 years. If this was what was meant in the judgment one need not quarrel with any or all of the observations of the learned Judge. The lands in the case, like the lands in the 'Chellapalli' case, 39 Mad 341 were at their inception ryoti lands and the confiscation did not even affect the rights of the tenants, as held by the learned Judge. If that is so, by any amount of dealing with the property under the leases conversion into private land could not be affected. The actual decision in the case may be right on facts but the narrow and restricted definition of private and home farm lands which the learned Judges have indicated cannot be accepted as laying down the correct test. In my opinion the test was correctly laid down in the unreported decision in C. M. A. No. 311 of 1943. 44. After this decision in 'Jagadeesam v. Kuppammal', I L R (1946) Mad 687, there are some unreported decisions of this Court to which our attention was drawn. In 'Swami Vanniar v. Nagaraju', Section A. No. 847 of 1946 Rajagopalan J. had to consider the test to be applied under Section 3(10)(b) (iv) of the Act to establish retention of the kudiwaram interest in the land after acquisition of the kudiwaram. It was also contended in that case on the strength of the decision in 'Jagadeesam v. Kuppammal', I. L. R. (1946) Mad 687 that the test of cultivation and retention by the landholder for his personal use and cultivation should be established to prove the retention of kudiwaram within the meaning of that Sub-clause. The learned Judge held that the decision in 'Jagadeesam v. Kuppammal', I. L. R. (1946) Mad 687 has no application and that the case before him was really covered by the decision in 'Rajayya v. Laxmana Ayyar', I. L. R. (1946) Mad 181. The lease for short periods according to the learned Judge with varying terms would really indicate a definite intention on the part of the land-holder to retain his kudiwaram interest, not that he intended to part with it in favour of the lessee. The fact that the, lessee was the same is not enough to prove an intention to part with the kudiwaram interest. In my view the intention to retain the kudiwaram interest & the intention to retain for cultivation are not different intentions. If a person retains the kudiwaram interest for what purpose does he retain it? Only for the purpose of leasing it on his own terms and if necessary to resume cultivation. The test applied by Rajagopalan J. to establish retention of the kudiwaram interest may equally be applied to deduce an intention to resume cultivation of the kudiwaram interest owned by the landholder. The learned Chief Justice and Rajagopalan J. in 'Ramakrishna Rao v. Seshayya' App. No. 53 of 1946 considered whether on the broad facts of that case the land was private land or not. One peculiar feature in the case before the learned Judges was that practically the whole extent of the estate claimed as the private land of the land-holder. The land-holder however was unable to prove continuous cultivation but he was able to establish by evidence that he was keeping a large establishment of farm-servants in the village, live stock, agricultural implements and was carrying on personal cultivation of lands which were not taken up by the tenants. It was found that the lands were 1500 acres in extent and were more or less around the house of the land-holder. From these facts, it was inferred that the lands were private lands. The decision in 'Jagadeesan v. Kuppammal', I. L. R. (1946) Mad 687 was referred to in the course of the judgment and the passage from that decision already extracted in this judgment was also cited. The decision proceeded on the facts established in the case & it does not take us beyond the decisions already referred to. Recently the question was examined by Subba Rao and Chandra Reddi JJ. in 'Parish Priest of Karayar Parish v. Thiagarajaswami Devasthanam', App. Nos. 176 to 178 and 493 of 1946. The learned Judges accept the test laid down in 'Jagadeesan v. Kuppammal', I. L. R. (1946) Mad 687. 45. The legal position is summarised as follows: "The legal position having regard to the provisions of the Act and the decisions dealing with them in so far as it is relevant for the purposes of this case may briefly be stated thus. Private land as defined under the Madras Estates Land Act comprises two categories, private lands, technically so called and lands deemed to be private lands. In regard to private lands strictly so called, it must be a domain or home farm land as understood in law. The mere fact that particular lands are described in popular province as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands. The test to ascertain whether a land is domain or home farm is that accepted by the Judicial Committee in 'Mallikarjuna Prasad v. Somayya', 42 Mad 400 i.e. 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. Whenever a question therefore arises whether a land is private land technically so called as defined in Sub-clause (1) of Clause (b) to Section 3 (10) the presumption is that it is not a private land. The recitals in the leases, pattas etc. after 1918 must be excluded and the recitals in similar documents prior to 1918 in themselves are not sufficient evidence. There must be in addition direct evidence that these lands were either domain or home farm lands in the sense that they were in their origin lands directly cultivated by the landlord or reserved by him for his direct cultivation. We are not concerned in this case with the question whether ryoti lands could be converted into private lands." 46. Reference may now be made to the judgment of my learned brother Viswanatha Sastri J. in 'Narayudu v. Venkataramamurti', (1949) 2 Mad L J 623. It arose out of a suit for rent which was instituted in a civil Court by the land-holder. The tenants pleaded that the lands were ryoti lands and that the civil Court had no jurisdiction to try the suit. The question for determination was whether the lands were or were not private lands. The Courts below upheld the contention of the landholder that the lands were private lands and decreed the suits for rent. In the revision petition before the learned Judge this finding was canvassed on the ground that the Court below gave themselves jurisdiction by a wrong decision that the lands were private lands and that they did not apply the correct test to determine the question whether the lands were private or not. The lands were admittedly situated in a permanently settled estate and the question was whether they satisfied the definition of private land in the first part of Section 3(10) (a) of the Estates Land Act. The test adopted in the 'Chelpalli case', 39 Mad 341 and by Wadsworth O.C.J. in 'Jagadeesam v. Kuppammal', I. L. R. (1946) Mad 687 that domain lands are confined to lands appurtenant to the land-holder's residence and kept for his enjoyment and use was rightly rejected by the learned Judge as inapplicable to conditions of land tenure in this presidency and as being opposed to the conception of private lands having regard to its history and nature. The learned Judge makes reference to the decision in 'Lakshmayya v. Appa Rao', 36 Mad 168 and accepts the decision as correct. The learned Judge examined elaborately the provisions of the Act and the decisions bearing upon the question and came to the conclusion that evidence of direct cultivation was not necessary and was not the only mode by which a land could be proved to be private land. Having regard to the course of the dealing by the zamindar of the lands from 1877 to 1939 which established that the zamindar treated the lands as private land and that the tenants acquiesced in the position that they had no occupancy rights in the land, the learned Judge came to the conclusion that the lands in question were private lands. For the reasons given by the learned Judge in his judgment I respectfully agree with his conclusions and also adopt the test applied by him to determine the character of the land as warranted by the provisions of the Act and the nature and character of private land 8g understood before and after the Estates Land Act. 47. This review of the decisions shows the conflict of judicial opinion and that the principle of 'stare decisis' has no application. It is in view of the conflict that these cases were referred to a Full Bench to resolve the conflict. 48. Lastly, I have to refer to the decision of the Privy Council in 'Bindeshwari Prasad v. Keshoprasad Singh', 5 Pat 634 (P. C.) which in my opinion is decisive on the question which we have to decide. It is a decision under Section 120 of the Bengal Tenancy Act and this judgment of the High Court is reported in 'Keshoprasad Singh v. Parameshwari Prasad', 2 Pat 414. Before dealing with this case it will be convenient to refer to the language of Section 120 of the Bengal Tenancy Act: "Section 120(1): The Revenue Officer shall record as a proprietor's private land: (a) land which is proved to have been cultivated as Khamar (zirat, sir) nil, nijlot (or kamat) by the proprietor himself with his own stock or by his own servants or by hired labour for twelve continuous years immediately before the passing of this Act, and, (b) cultivated land which is recognised by village usage as proprietor's khamar (zirut, sir), nil, nijjot (or kamat). (2) In determining whether any other land ought to be recorded as a proprietor's private land, the officer shall have regard to local custom, and to the question whether the land was, before the 2nd day of March 1883, specifically let as proprietor's private land, and to any other evidence that may be produced, but shall presume that land is not a proprietor's private land until the contrary is shown." The rest of the clauses of the section are not important. Clause (a) corresponds to the second part of Section 3(10) (a), Clause (b) corresponds to the first part. Clause 2 corresponds to Section 185. In the case in 'Bindheshwari Prasad v. Kesho Prasad', 5 Pat 634 (P. C.) a suit was instituted by the Maharaja of Dumraon for possession of the lands by ejecting the defendants. The defence was that the defendants had occupancy rights in the lands and therefore they could not be ejected. The Subordinate Judge found that the lands were not zirait lands and that the defendants had rights of occupancy and made a decree dismissing the suit. The plaintiff appealed to the High Court of Patna which reversed the decree of the Subordinate Judge and granted a decree in ejectment to the plaintiff with mesne profits holding that the land was private land. The history of the lands was that they were in the bed of the river Ganga until shortly before 1843, when they emerged from the Ganges and part of it became fit for cultivation. In 1843, the Government who were interested in carrying on a stud farm obtained possession of the land from the Maharaja of Dumaron and cultivated the lands by themselves for a period of 30 years. The fact that the Government held the land under the Maharaja is made clear in the Judgment of the High Court in 'Kesho Prasad v. Parameshwari Prasad', 2 Pat 414. In 1873, the Government surrendered the land to the Maharaja of Dumaron and vacated possession without claiming any interest in the lands. Thereafter the Maharaja let the lands to a Mr. Fox for a term of years which was extended in 1883 by nine years under a kabuliat executed by Mr. Fox on the 21st June 1883. In that kabuliat Mr. Fox admitted that under no circumstances could he claim occupancy rights in the lands and that after the expiration of the term the Maharaja was at liberty to keep the said lands as his private lands or to lease them to others. In 1891 the Maharaja granted occupancy rights to Mr. Fox in consideration of the valuable services rendered by him to the Maharaja. Under the Bengal Tenancy Act occupancy right is a statutory right and is not conferred by gift by the land-holder. Mr. Fox defaulted payment of rent as a consequence of which in a suit instituted for recovery of arrears, a decree was obtained and the right, title and interest of Mr. Fox was sold in execution on 2nd March 1896 which was purchased by the Maharajah himself. Mr. Fox's rights in the lands terminated by this sale. On 2nd March 1896 the Maharaja let the lands to two persons for a term of five years who did not however acquire any occupancy rights in the land. In 1902, the Maharani who succeeded to the estate let the lands to the father of the detendants for a term of seven years from fasli 1309 to 1315 which was followed by an exchange of patta and kabuliat between the parties. Under these documents lands were admitted to be zirait lands and that the lessees had no occupancy rights and that after the expiry of the term the Maharani should be entitled to keep the lands for herself in her possession or let them out to tenants as she pleased. The father of the defendants continued in possession until his death and thereafter the defendant continued in possession. In 1908 the estate was in the management of the Court of Wards. The mother of the defendants who were then minors obtained for their benefit a temporary settlement of the land for a term of nine years from fasli 1316 to 1324 and executed a kabuliat which contained terms by which it was admitted that they had no occupancy rights in the land and that after the expiry of the lease the lands would be surrendered. After the term had expired the defendants refused to surrender possession and a suit was therefore instituted. In 1910 the mother of the defendants as guardian instituted certain suits in ejectment against trespassers and in the plaints in those suits also she admitted that the lands were private lands of the Dumaron Raja which were also recognised by custom as such. One of the questions raised and argued before the Privy Council was whether the admissions in the kabuliat executed after 2nd March 1883 that the lands were the Maharaja's private lands were admissible in evidence. As already stated by me above, the Privy Council held that the said admissions were admissible. Their Lordships of the Judicial Committee considered the question even apart from the admissions contained in subsequent documents. At page 645 it is observed: "But quite apart from that and even if their Lordships had taken a strict view in favour of the appellant of Section 120, the Bengal Tenancy Act, 1885, as if now stands, and irrespective of the patta of 1902 and the kabuliats of 1883 and 1892, still having regard to the facts that the lands which the Government held for 30 years were used by the Government for similar purposes as they would have been used by the Maharaja of Dumaron if he had been the owner of a stud farm, that no one claimed any right in any of them as settled zaiyat or, except trespassers without any title, as having an occupancy right in any of them, and to the statements as to the character of the land by the defendants and their mother in the plaints of 1910, when they were the plaintiffs in the suits against trespassers to which their Lordships have referred, and to the kabuliat given in 1908 by Mussammat Radha Kuar to the Manager of the Court of Wards, their Lordships find that there was ample admissible evidence that the lands were a zirat of the Dumaron Raj, and that the defendants had no right of occupancy in them." From a perusal of the reports of this judgment and the judgment of the High Court in 'Kesho Prosad v. Parameshri Prasad', 2 Pat 414, which was confirmed by the Judicial Committee it would be seen that from 1843 upto the date of the institution of the suit out of which the appeal arose, there was no trace of any cultivation or of an intention to resume cultivation at a future date in the case. The only evidence to prove that the land was private land was the admissions contained in the leases before 1883 and after and on that evidence and on that evidence alone, the Judicial Committee concluded that the lands were proved to be private lands. All that is stated in the definition in Section 120 of the Bengal Act excluding the first Clause (a) which requires continuous cultivation for a period of 12 years is that the land is cultivated land which is recognised by village usage as proprietor's khamar (zirat, sir) nii, nijjot (or kamat). No indication is given in this definition that the land should be within a particular distance of the zamindar's residence and though the words "kamar" etc. occur which have been interpreted as lands which are in the cultivation of the Zamindar, still the Privy Council held that the lands are private lands, even though cultivation was not proved. From this decision which was pronounced by the highest Tribunal under a section which is in 'pari materia' with that in the Estates Land Act, it follows that the test of cultivation or even the test of intention to cultivate is not the only mode by which a land could be established to be private land. This decision and the decision in 'Lakshmayya v. Apparao Bahadur', 36 Mad 168, were not referred to either in the decision in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, by Wardsworth O. C. J. or in the unreported decisions to which reference has already been made. 49. From the foregoing discussion the following propositions are established: 1. If the land is known to be ryoti at its inception the only mode by which it could be converted into private land is by proof of continuous cultivation for a period of 12 years prior to the commencement of the Act. 2. Even if the nature of the land is not known, continuous cultivation for the required period of 12 years before the commencement of the Act would conclusively establish that the land is private land. 3. If there is no proof of cultivation for a continuous period of 12 years before the commencement of the Act, the land may be proved to be private land by other methods; provided the land was not shown to be once ryoti. 4. Cultivation of the lands or leasing of the lands under short-term leases may be one mode of proof. 5. An intention to cultivate or resume for cultivation is also a test to decide that the land is private land and such intention may be established by any other means, not necessarily by cultivation and by cultivation alone. 6. The essence of private land is continuous course of conduct on the part of the land-holder asserting and acting on the footing that he is the absolute owner thereof and recognition and acceptance by the tenants that the land-holder has absolute right In the land. 7. Mere proof that the land-holder is the owner of both the warams is not sufficient to prove that the land is private land. 50. It now remains to briefly refer to the evidence in the case on which the finding of the Courts below is based. The evidence in the second appeals batch and in the civil revision petition batch is similar. Between the years 1815 and 1864 there are no documents throwing light on the question in issue. We do not know how the grantee enjoyed these lands from the date of grant upto 1864. Between the years 1864 and subsequently there are the sale-deeds Ex. P. 1 series under which the temples acquired absolute rights in the property. The recitals in the sale-deeds are more or less similar. Under these documents, the rights of the vendor in the nanja, punja, timber, fruit bearing trees, thottam, well, inclusive of the hamlets together with the cocoanut trees and all trees excluding the residential quarters were conveyed. There is specific reference to the transfer of the "iru varams" that is, both kudiwaram and melwaram in all these sale-deeds which indicates that the vendors were in enjoyment of the kudiwaram right in the lands as well. There are next the leases executed by tenants commencing from 1886 in the second appeals batch and 1873 in the rent batch. The leases in the second appeal batch are Exs. P. 2 series and the clauses in all these leases are more or less similar. The tenants specifically admitted in those documents that the lessor was the owner of both the warams and agreed to harvest the crops under the supervision of the land-holder and measure half of it to the land-holder as melwaram, and in recognition of the right of ownership the Kudiwaram by the land-holder and as lessee thereof they further agreed to pay one pangu of swami bhogam at the rate of 6 Ramalinga Marukkals and two straw bundles including cess for one transplantation at the rate of one anna and take the balances of the produce. There is the further condition that they would render service to the temple in respect of the share. There is also the "quit" clause in all the leases by which the tenants undertook to surrender the lands after the expiry of the term fixed the leases. The leases from 1866 to 1896 were for a period of five years. In 1898 there were two such leases for a period of three years. Then in 1902 there were leases for a period of five years except one which was for a period of four years. In 1919 the leases were all for a period of three years. In the rent batch also the leases were, in some cases for five years, in others, for three years, and there were also some leases for seven and more years. The documents have been analysed by the Courts below and the effect of the documents is summarised by the learned Subordinate Judge in paragraph 16 of the judgment in the second appeal batch and there is also a similar summary in the rent batch as well. He says that the temple owned the kudiwaram and melwaram rights; that though the tenants were not disturbed from possession of the lands; there were some instances in which there was also a change of tenancy. The right of the temple to both the warams was admitted in the leases and there is the further payment of swami bhogam, a share from out of the tenant's share of the produce in recognition of the ownership of the temple to the lands. The tenants never asserted during the whole course of the period till 1930 that they were entitled to kudiwaram interest. On the contrary in almost all the documents there were clear admissions that they had no kudiwaram rights and that the temple owned the kudiwaram right as well as the melwaram. In some of the leases in describing the boundaries the surrounding properties were described as property owned by the temple and not by the cultivating tenants. The payment of swami bhogam by the tenants a very important circumstance in my opinion indicating that the land is private land of which the temple is the full owner and is treated as a category of land in which the ryots could never acquire occupancy rights. The meaning of "swami bhogam" and its significance was considered by Sadasiva Aiyar J. in 'Naina Pillai v. Ramanathan,' 33 Mad LJ 84 at p. 98, "The word 'swami bhogam' used in Exs. A. F. F. 1 and other documents has got a set¬tled meaning in the Tanjore and Chingleput districts. Wilson in his Glossary says: 'Swami bhogam in the tamil country means the share of the produce or rent which is paid to the Mirasidar or hereditary proprietor by the tenant cultivator holding the land in farm for a fixed period". I think the use of the word swami bhogam in Ex. A in almost con¬clusive as to the full proprietorship of both the melwaram and kudiwaram rights in the temple." This decision was affirmed by the Privy Council in 'Naina Pillai v. Ramanathan,' 47 Mad 337. At page 356 of the report the mean¬ing given to local term by the learned Judges of this Court was accepted and their Lordships observed: "All those learned Judges were, from their local knowledge, in a better position than their Lordships are, to correctly appreciate the meaning of the vernacular terms in use in the tamil country of Tanjore in reference to interest in lands, and all those learned Judges in carefully considered and exhaus¬tive judgments found, to state briefly their findings, that the endowed property of the temple, of which the lands in question form-ed part was not an 'estate' within the mean¬ing of Madras Act I of 1908 and that the defendants were not, under the Act or other¬wise, tenants with a right of permanent oc-cupancy". (See also the decision in 'Muhammad Ravuthar v. Muthu Alagappa Cheitiar,' 34 Mad L J 234 at p. 248). In 'Subramania Chettiar v. Subramania Mudaliar,' 52 Mad 549 (P C) the Privy Council considered the meaning of "Tirwa swamibhogam" which was paid by the tenants to the land-holder. "Tirwa" according to the Judicial Committee is the share of the rents payable to the Government and "swami bhogam" is the revenue derived from the tenants or occupiers over and above what was necessary to pay the tax. In 'Sivanpandia Thevar v. Zamindar of Urkaud,' 41 Mad 109 "swami bhogam" was treat-ed as part of the rent though it is something which is paid over and above the melwaram. It is unnecessary in this case to consider the cor¬rectness of that view. If a tenant is called upon to pay more than the lawful rate of rent payable in respect of ryoti land, the excess would be an enhancement. It is however unnecessary to decide whether swami bhogam in such circumstances would not be an illegal en¬hancement. The payment of swami bhogam therefore is a clear indication of not only the admission by the tenant of the ownership of the land-holder of the kudiwaram interest in the land but also an indication on the part of the land-holder of his intention to retain the kudiwaram and the object of such a retention can only be that at some future date he intends to resume for cultivation if necessary. 51. The learned Subordinate Judge points out that according to the Ramnad Pistrict Manual prepared by Mr. T. Rajaram Rao, Dewan of Ramnad Samasthanam, under the orders of the Court of Wards in 1890 "pannai" lands in the district are those in which the Zamindar or Inamdar owns both the landlord's and te¬nants' right and that he can lease out the lands to any one he likes for cultivation and obtain from him "swami bhogam" or Thunduvaram, a rent obtained in acknowledgment to the land¬lord's tenancy right in the soil, in addition to the melwaram or landlord's share, and that most of the Dharmasanams in the zamindari were held under "pannai tenure". This indi¬cates that in this district these incidents are understood by usage as establishing that the tenure is pannai tenure and therefore it follows that the lands are treated by usage as private lands of the land-holder. The evidence there¬fore establishes in this case that for nearly a period of 80 or 90 years to which the docu¬ments relate, the lands are treated as lands in which the tenants under no circumstances ac¬quire occupancy rights. In other words, the land is treated as private land and not ryoti. Apart from the execution of the leases, there are admissions by the tenants themselves even after the Act and even after 1898 establishing that the lands are the absolute property of, the land-holder which can only mean that they are private lands. Such evidence is admissible and it would be legitimate to draw from such ad¬missions that the lands are private lands as has been laid down by the Privy Council in 'Bindeshwari Prasad v. Kesho Prasad,' 5 Pat 634 P C already referred to. The leases were for short terms and con¬tained surrender clauses; and the obligation to pay swami bhogam is also enjoined by the leases. This treatment of the lands by the land-holder and the exercise of the rights by him as the absolute owner of the lands which was acquiesced in and acknowledged by the tenants is clear and cogent evidence from which to infer that the lands were private lands. The usage in the district as recorded in the Ram¬nad District Manual is also to treat the lands with such incidents as private land. Such usage will be local usage and local custom within the meaning of Section 185 of the Estates Land Act, which again is permissible and rele¬vant evidence when the question of determina¬tion of the character of the lands arises. There is also similar evidence and similar findings in the rent batch also and it is unnecessary to re¬fer to them in detail. There is one additional circumstance in the rent batch namely that re-pairs to the nanja lands were effected by the plaint temple which is also an indicative of the lands being private lands. 52. Apart from the ownership of the two warams by the temples we have the undisputed conduct of the parties, recognising the lands as private lands in which the tenants had no occupancy rights. The Courts below in my opinion were alive to the question that had to be decided and approached the evidence in the case from a proper perspective and the finding reached concurrently is not vitiated by any legal flaw so as to justify interference by this Court in second appeal. I have no hesitation therefore in confirming the decision of the Courts below and dismissing the second ap¬peals and the revision petitions with costs. In the second appeals the decree will be modified by deleting the direction to pay future mesne profits. Vishwanatha Sastri, J. 53. The desion of these second appeals and civil revision petitions turns upon the answer to the question whether the lands which formed the subject-matter of the suits were the "private lands" of the plaintiffs land-holders, as defined in Section 3(10)(a) of the Madras Estates Land Act, I of 1908 ; hereinafter called "the Act", or whe¬ther they were ryoti lands in which the defen¬dants-tenants had acquired a right of occupancy by virtue of Section 6(1) of the Act. In the argu¬ments before us, title to a permanent tenancy by prescription, pleaded and found against in the Courts below, has not been relied on and the tenants rested their case entirely on the Act. 54. The essential facts relating to the his¬tory of the land have been set out in the Judg-ment of my learned brother, Satyanarayana Rao J. and I therefore forbear from summaris¬ing them on my own account. I agree that the vil¬lage of Manamelpatti which was originally part of the Sivaganga zamindari is an "estate" fall¬ing within Section 3 (2)' (e) of the Act. The plain¬tiffs are therefore "land-holders" as defined in Section 3 (5) of the Act, The defendants would be "ryots" if the lands in their occupation are "ryoti" as defined in Section 3 (16) and the lands would be "ryoti" unless proved to be "private lands" as defined in Section 3 (10) (a) of the Act. 55. The lands in question have been pur¬chased by the plaintiffs and their predecessors-in-title under a series of sale-deeds ranging from 1864-1914 with both waram rights. In vernacular conveyancing it is customary to speak of the absolute ownership of land as consisting of irwaram rights, i.e., of both melwaram and kudiwaram, even though 'there are no distinct, independent and co-existing in¬terests in the land like melwaram and kudi¬waram in the lands conveyed. In the case of ryptwari lands and "private lands" as defined in the Act the distinction between melwaram and kudiwaram is notional, and the rent pay¬able to the absolute proprietor of the land is called "melwaram" and the tenant's share of the produce "kudiwaram" though the tenant has no permanent right of occupancy in the lands and his rights are regulated solely by the contract of lease between him and the proprie¬tor. The lands in question have been leased in parcels to tenants from time to time under terminable leases for periods ranging from three to ten years- The leases are not continuous but they cover the entire lands. All the leases con¬tain a - provision for the payment of 'swamibhogam' to the lessors in addition to the mel¬waram. Under the leases of 1873 the tenants agreed to surrender the land to the lessors when¬ever required by the latter at the beginning of the Tamil New Year. In the leases of the years 1885 to 1891 there are provisions for surrender of the land after the expiry of the term in the Tamil month of Chitrai. In the leases of 1905 there is a stipulation that if the conditions of the leases are not observed, the lessors would be at liberty to cancel the leases and let out the lands to other tenants even before the ex¬piry of the term. In the leases for the period from 1919 to 1922 there is a provision for sur¬render of the lands by the tenants at the end of the term. In all the leases there is a stipulation for rendering service to the two temples to which the lands belong. The leases are described as 'swamibhogam' leases and the title of the lessor to both warams in the lands is admitted. The leases range from 1873 to 1922. It has been found by the Courts below that though there has sometimes been a change in the personnel of the tenants, in the majority of cases the lands have continued' to be in the occupation of the families of the tenants hereditarily. Before 1930 none of the tenants asserted or claimed a . right of occupancy in the lands. During the years 1930 to 1935 two or three tenants pur¬ported to sell or mortgage their holdings under Ex. D. 4 to Ex. D. 7 but the plaintiffs were not parties to or aware of these transactions. There is no evidence of direct cultivation of any of the lands by the land-holders by their own servants or by hired labour with their own or hired stock at 'any time. 56. The crucial question may now be posed. Are the lands in question the "private lands" of the land-holders as" defined in Section 3 (10)' (a) of the Act? Mr. Sundaram Aiyar for the appel¬lants contends--and this is the pinch of the case that direct cultivation by the land-holder for an appreciable period of time must be proved in every case where a land is claimed to be the "private land" of the land-holder. He says that direct cultivation is implicit in the very definition of private land in Section 3 (10) (a) and that this is the view taken in the decisions of this Court and the Judicial Committee. He conceded the concession being both self imposed and allowed by decisions that occasional or spo¬radic leasing of the lands with the intention of resuming direct cultivation by the land-holder would not be fatal to a claim that -the lands are "private lands". He relied on a number of reported and unreported decisions which will be referred to later. The contention of the respondent is that direct cultivation is only an evidentiary fact, may be an important piece of evidence, but is not a touchstone of the character of land as private land. 57. The draftsman of Act I (1) of 1908 has assumed a certain amount of knowledge of the history and the incidents of land tenures in zamindar areas in this Presidency on the part of those who have to interpret the Act. Of recent years views have been advanced by some learned Judges of this Court which have intro¬duced an element of doubt and perplexity in the interpretation of Sections 3 (10) (a) and 185 of the Act. The arguments in this case fully reflected the uncertainty and conflict discernible in the decisions, attributable, in my humble opinion, to the Judicial embroidery of the lan¬guage of the Act. In my recent judgment in 'NARAYADU v. VENKATARAMANAMURTHI, 1949-2 Mad LJ 623, I ventured to protest, though alone, against the wrong approach to the question now under debate in some of the earlier decisions. I am loath to rely on my own decision as a precedent and I take this opportunity of expressing my views with great deference to those who have held differently and with more elaboration than I thought necessary on the previous occasion. The topic now under discussion has been darkened, rather than illumined, by a false analogy which has been drawn with feudal tenures and manorial customs in England. The substitution of extracts from judgments dealing with cases of conversion of ryoti land into private land for the language of Sections 3 (10) (a); and 185 of the Act and the wholesale adoption of expressions used by learned Judges in that connection, as if they were the words of the Statute itself, have also been responsible for much of the uncertainty in this corner of the law. 58. My own researches have not been as wide as those of my learned brother Satyanarayana Rao J. and in any case I need not cover the same ground. It is necessary, however, to sketch briefly the background of the Legislation which became Act I (1) of 1908. The whole of the lands, whether cultivated or cultivable or waste in the country have been from time immemorial apportioned to a particular village, so that all lands are within the known boundary of some village. Even today the village is the unit of revenue administration. Under what may be called the common Jaw of this part of the country, there are two main beneficial interests in cultivable lands, viz., the melwaram and the kudiwaram. Melwaram belonged to the State or to its assignee who might be zamindar, poligar jagirdar or inamdar and the kudiwaram to the ryoti or cultivating occupants of the land who had a right to remain in possession of the land so long as he paid the rent or revenue exigible. These were the only principal and independent interests in the land but there might be subordinate interests derived from the one or the other. Subordinate tenure-holders from zamindars, ppligars or jagirdars holding under grants either rent free or subject to the payment of a favourable rent to the superior landlords, were themselves in the position of landlords or persons entitled only to the melwaram. Persons holding as sub-tenants under the ryot or kudiwaramdar had no right of permanent occupancy in the lands. So far I have referred to two distinct and independent interests in the cultivable lands. There were also two distinct classes of such lands, viz., one the pannai, kambattam, homefarm or to use the phraseology of the Act "private lands" of the Zamindar, Poligar or Jagirdar and the other, the ayan, zeroyati, seri, or peasant lands, styled as "ryoti" lands in the Act. In the first class of lands both the melwaram and kudiwaram rights belonged to the zamindar, poligar or jagirdar and in the second the melwaram alone. The bulk of the lands belong to the latter class. The former rulers of the country had made special grants of land to the farmers of revenue or rent collectors who later on came to be known as zemindars, poligars, or jagirdars for the subsistence of themselves, their families, followers, retainers and dependants. These dignitaries were also brought under cultivation with their own servants or hired labour waste lands in which there was no right of occupancy. These lands constituted the private lands of the zamindar in which the cultivating tenants had no occupancy rights as contrasted with the public lands in which they could acquire such rights. This was the state of affairs at the time of the Permanent Settlement in 1802. 59. Both in the instructions issued to the Collectors for the purpose of carrying out the Permanent Settlement and under S. 2 of Regulation XXV (25) of 1802 the pannai or homefarm lands of the Zamindar, Poligar or Jagirdar were treated as lands liable to pay revenue to the Government. They were taken into account in calculating the assets of the Zamindari and fixing the peishcush' payable to the Government. The position is thus stated in the first report: "All private lands at present appropriated by the Zamindars and other land-holders to the subsistence of themselves and families as well as all lands held by private servants and dependants will be considered as forming part of the circar land and therewith responsible for the public Jama." Section 2 of the Regulation recognised and vested, the proprietary right of the soil at least in the pannai or private lands, in the zamindar, though its language was much more sweeping and all embracing and inappropriate with reference to the public lands in respect of which he was, under the customary law, entitled to the melwaram. Regulation IV (4) of 1822 was passed declaring that Regulation XXV (25) of 1802 was not intended to define, limit, infringe or destroy the rights of any description of tenants, but as these rights were nowhere defined, there ensued much litigation and controversy regarding the respective rights of zamindars and tenants in public lands. It is unnecessary, for the purposes of this case, to refer to the course of decision in this Court resolving such disputes- Suffice it to say that the first two Indian Judges of this Court, whose knowledge of the land, tenures of this Presidency was only equalled by the lucidity of their exposition of legal principles were largely responsible for according judicial recognition to the permanent occupancy rights of ryots of public lands in zamin areas by their bold declaration that "contractual relations and competitive rents" were incompatible with the status of such ryots. This principle applied not only to lands in the occupation of ryots but also to lands relinquished by former ryots as well as unoccupied but cultivable lands which were all considered to be public lands. See 'Venkata Mahalakshmamma v. Ramajogl', 16 Mad 271; 'Venkatanarasimha v. Kotayya', 20 Mad 299; 'Cheekati Zamindar's Case', 23 Mad 318. But it was only in respect of the "public domain" later on defined in the Act as "ryoti lands" that the cultivating tenant in possession or occupation acquired a permanent right of occupancy. This right was not extended to the kambattam, pannai, or homefarm land, the "private domain" of the zamindar. In the respect of such lands, the tenants did not acquire a permanent right of occupancy by reason of their cultivation of such lands, the relationship between the zamindar and the tenants being regulated by the terms of the contract, between the parties. 60. Reference may here be made to a few decisions of this Court dealing with the rights of Zamindars in pannai lands before the passing of Act I (1) of 1908. Referring to pannai lands in a zamjndari in the Madura District (of which the suit village and the Sivaganga zamindari once formed part) the District Judge observed in an early case as follows: "They are lands to which the proprietor has an exclusive right, that is to say, the right to receive the kudiwaram produce and the right to receive the melwaram; lands regarding which land-holders can arrange their own terms of rent. Sometimes these lands are cultivated under the Zamindar's own ploughs and sometimes they are let out for cultivation of others." This view was affirmed by a Bench of this Court, Kindersley J. remarking: "The Judge says that they are lands to which the proprietor has an exclusive right, a right to the kudiwaram and to the melwaram. This is certainly something more than the tenure of an ordinary ryot, who is not entitled to the melwaram. And it appears to me from this and other cases which I have met with in this Court, that we cannot say that the defendant would have held these pannai lands if be had not been the zamindar." The case was decided by the District Judge in 1870. The decision on appeal is reported as 'Nagayasami Kamayya v. Virasami', 7 M H C R 53. In a later decision in 'Venkatagiri Zamindar v. Raghavan', 9 Mad 142, Turner C. J. stated the characteristic feature of "private" or homefarm lands in a zamindari in these terms: "They are lands which according to a very general custom of the country the Zamindar reserves for his own cultivation when he thinks fit to resume them and on which a right of occupancy does not accrue." That private lands in Zamindari areas were often leased to tenants for cultivation on contractual terms, without the tenants acquiring any right of occupancy, is also clear from the discussion of the evidence of Sir S. Subramania Aiyar J. in the 'Cheekati Zamindar's Case', 23 Mad 318, at pages 325 and 326. 61. Though the kambattam, pannai, homefarm or private lands of the zamindar were distinct from the zeroyati, seri or ryoti lands in a village and the bulk of the lands belonged to the latter class, it was found in practice that the zamindars were gradually extending the area of their private lands by incorporating ryoti lands therein. In a contest between a rich and powerful zamindar and ignorant and poor ryots the odds were of course, immensely in favour of the former. The rights too, whose origin, had to be traced to remote times, were not capable of easy proof. According to contemporary testimony, ryots in the southern Districts held their own against zamindars and even defied them, while in the Northern sircars the zamindars were more grasping and were generally masters of the situation. The Estates Land Act was passed in 1908 in order, as its preamble states "to amend and declare the law relating to the holding of land in estates in the Presidency of Madras". Its general effect may be stated in the words of the Judicial Committee : "In declaring the rights of the occupancy ryots and emphasising the distinction between the landlord's 'private lands' and the 'ryoti' lands, the new Act affirmed the old customary law that had always been recognised by the British administration. Apart from rules relating to procedure and jurisdiction of the revenue Courts, it created one new right in order to settle the constant disputes beween landlords and tenants which had been going on for nearly a century, it gave occupancy rights to all 'ryots' in occupation of lands within an 'estate' at the time of the passing of the Act. It also' gave some security to non-occupancy ryots in the enjoyment of their lands. In other, respects., generally speaking, it declared and gave statutory recognition to existing rights and status......The existence in a village or 'pannai,' lands, in which the tenant cannot acquire occupancy rights except by contract, connotes the existence of lands in which he can acquire such rights by prescription." ('Chidambara Sivaprakasa v. Veerama Reddi', 45 Mad 586 (PC)." "Ryoti land" and "private land" are mutually exclusive categories under Section 3 (16) of the Act, though they may both form component parts of the same village. The distinction between the two classes of lands is maintained throughout the Act in respect of the rights and liabilities acquired or incurred and in respect of the jurisdiction of the Courts that have to adjudicate upon them. The fundamental difference is that the land-holder is the absolute owner of "private land" of both the melwaram and the kudiwaram, though the distinction between the two warams is notional in such a case. Nobody else has an interest except such as the land-holder might create under a contract or grant. The land-holder has a right to enjoy the land as he pleases either by direct cultivation or through tenants. He can lease out the lands at competitive rents and enforce the other terms of the contract of tenancy. The tenant does not acquire a permanent right of occupancy by being admitted to possession of such land. In the case of ryoti land there exists two separate and independent interests the melwaram and kudiwaram the former being vested in the land-holder and the latter in the ryot and the relations between the land-holder and the ryot are governed by the Act. 62. We are concerned in the present case to find put the true character of the land, whether it is ryoti or private land. Section 3 (10) (a) defines "private lands." The reference to Khambattam, khas, sir or pannai is only by way of illustration. The test of direct cultivation prescribed in the second part of Section 3(10) (a) is not laid down for private lands falling within the first part of the clause. It is conceded by all the decisions that lands retained by a zamindar as resumable for direct cultivation by him would be private lands. Section 185 of the Act deals with evidentiary matters that have to be considered in arriving at a conclusion whether a particular land whose origin is not known is private land. 'The two provisions have to be read together. The first proviso is to S. 185 lays down a presumption that a land is ryoti unless the contrary is shown, thereby casting the onus of proof on the landholder. Section 185 does not profess to enumerate or exhaust all the heads of relevant evidence and does not shut out any evidence that would be admissible under the Evidence Act to prove a relevant fact or fact in issue except a particular category of evidence in connection with major inams. The reference to "local customs" in Clause 1 of Section 185 is somewhat vague and indefinite. It evidently contemplates cases where, according to the consciousness of the village community, certain lands are always regarded as the private lands of the zamindar as distinct from serai, zeroyati or ryoti land. It is well known that ryoti lands are treated differently from private lands in many respects. In the case of private lands the rents vary from time to time; the tenants change, periodical leases with provision for eviction or surrender are granted; and the land-holder is recognised and admitted to be the owner of both the warams. In the case of ryoti lands the rents are uniform and fixed; the tenants have hereditary rights and the right of alienation; and pattas and muchilikas do not provide for surrender of possession by tenants. In these and other ways the villagers recognise private lands as distinct from ryoti lands. Section 185(2) requires the Court to have regard to the question whether the land was specifically let as private land before the first day of July 1898, that being the date when the proposal for legislation which became Act 1 of 1908 was first mooted. It cannot be that the legislature required that the expression "private land" which was defined for the first time in Act 1 of 1908 should have been 'used in that sense in leases granted before 1898. The word "let" emphasises the importance of the terms and the conditions of the tenancy and requires attention to the substance of the contract rather than the nomenclature of the land. If the land-holder, had dealt with the lands as an absolute owner and with the tenant as a person who had no higher or other rights than those conferred by the contract of lease, and the tenant had admitted the absolute ownership of the land-holder and his own position as a person without any right of occupancy, evidence of such letting is relevant. Notwithstanding the opinions to the contrary expressed in this Court, it must now be held on the authority of the decision of the Judicial Committee in 'Bindeshwari Prasad v. Kesho Prasad', 5 Pat 634 P. C. decided under the corresponding provisions of Section 120 of the Bengal Tenancy Act that leases subsequent to 1898 negativing a right of occupancy in the tenants are also admissible to prove the character of the land. This was also the vleiw of Sundaram Aiyar J. in 'Lakshmayya v. Apparao Bahadur', 36 Mad 168, of Wallis C.J. in the first 'Chellapalle case', 39 Mad 341 and of Krishnan and Venkatasubba Rao JJ. in the 'North Vallur case', 50 Mad 201, and of Abdur Rahim and Oldfield JJ. in 'Appurow v. Kaveri', 7 Mad L W 271. Indeed Section 185(3) requires the Court to consider "any other evidence" that may be produced and is wide enough to allow -the reception of leases after 1898 in evidence though their probative value might not be as great as those of leases granted before 1898. There was a provision in Section 181 of the Act that Sections 6, 8, 10, 11, 12, 19 and 46 do not apply to a land-holder's private land but this provision was deleted by the amending Act of 1934 on the ground that those sections applied only to ryoti lands and the provision was otiose. The other provisions of the Act clearly also recognise that private lands could be let out by the land-holder without the risk of the lands losing their character as private lands. See Sections 19, 1)34, 158, and 161. Neither leases nor the exchange of pattas and muchijikas impair the character of lands as private lands. To arrive at the conclusion that thoughSection 185 authorises the reception jn evidence of leases containing admissions of tenants negativing their rights of occupancy in order to prove that a Jand is private land, such leasing is an informative circumstance and that the character of the land as private land could in no case be established without proof of the land-holders's direct cultivation, is a leat of mental gymnastics beyond my capacity. It is not in my opinion, legitimate to write into Section 185limitations and qualifications which the Legislature has not thought fit to insert. 63. Section 185(3) permits the production of "any other evidence". It is not 'without significance that in a section dealing with the evidence that has to be considered in arriving at a conclusion as regards the character of the land as private land, no specific reference is made, to what, according to the appellants, is at primary and indispensable evidentiary fact, viz., direct cultivation by the land-holder. I do not say that it is not a relevant or weighty consideration but it comes in only under the omnibus provision allowing "other evidence". 64. The further argument of Mr. A. Sundaram Aiyar for the appellant is that the requirement of direct cultivation by the land-holder is obvious from or at any rate plainly implicit in, the definition of "private land" in Section 3(10) (a) as the domain or home farm land of the landholder. Occasional leasing with an intention to resume direct cultivation being permissible it is said thatSection 185(2)must be read as referring only to such leases. He says thatSection 185, which deals with evidentiary matter should not be construed so as to abrogate the substantive provision found in Section 3(10) (a). The argument has been sought to be sustained by reference to glossaries and dictionaries interpreting the words sir, khas, kambattam and pannai and the authority of prior decisions of this Court and the Privy Council. My learned brother Satyanarayana Rao J. has discussed the dictionary or glossary meaning of these expressions and I need not traverse the same grounds. Section 3(10) (a) deals with two categories of lands (a) private lands properly so-called i.e., home-farm lands of which kambattam and pannai are given as examples, (b) lands whose origin or character is not known or which were once ryoti lands. The enumeration of different kinds of private lands in Clause (a) is only illustrative and not exhaustive. In the case of lands coming under Clause (b) above described, proof of direct cultivation by the iand-holder with his own servants or by hired labour with the own or hired stock for a continuous period of 12 years before 1st July, 1908 without any other evidence, constitutes the lands "private lands". Ryoti land however could be converted into private land only in this manner and no other, and direct cultivation by the land-holder for the requisite period, is an indispensable considition of such conversion as held by this Court in 'Bandharu Jogi v. Seethahamamurti', I L R (1948) Mad 223 F.B. In the case of lands falling under class (b) above stated proof of direct cultivation for twelve years before 1st July 1908 would without more, conclusively establish they are private-lands. In respect of lands once ryoti, direct cultivation for the specified period is the only mode by which they can be deemed to be private lands. The insistence on direct cultivation in the case of one species of lands deemed to' be-private lands is a clear indication that there-might be other private lands which need not satisfy the test of direct cultivation and these-are included in the first part of the definition in Section 3(10) (a). In respect of lands whose character as ryoti or private land is in dispute, direct cultivation for 12 years before 1908, is not the only mode by which their true character can be established. Section 185 renders admissible not only leases before 1898 showing that the lands were specifically let as private lands but also such other evidence as would be relevant under the Evidence Act. It in respect of such lands there is relevant evidence other than direct cultivation is is open to a Court to find on such evidence that the lands are private lands. 65. Before I consider the cases cited at the Bar I wish to clear the ground by stating that we are not concerned in this case with conversion of ryoti land into private land but only with the nature of the evidence required to establish the original character of the land as private land. BeforeSection 185 was amended in 1934, it contained a proviso that land directly cultivated by the land-holder as private land for 12 years before 1st July 1908 shall be deemed to be private land even though the land was originally ryoti. It has always been the law that mere merger of the kudiwaram interest in the melwaram does not convert ryoti land into private land. Before the 'amendment of 1934 conflicting views were expressed by learned Judges as to whether the proviso toSection 185 was exhaustive and retrospectively prohibited other modes by which conversion of ryoti land into private land has been effected before the Act. Wallis C.J. in 'CHELLAPALLI case', 39 Mad 341 and Krishnan and Venkatasubba Rao JJ. in the North Vallur case, 50 Mad 201 took the view that the proviso toSection 185 was not exhaustive and that such conversion was not retrospectively affected by Act 1 of 1908 while Sesha-giri Aiyar J. in the 'CHELLAPALLI case', 39 Mad 341, Abdur Rahim and Bum JJ. in 'Mallikarjuna v. Subbiah', 39 Mad L J 277 and Sadasiva Aiyar J. in the 'Nuzvid case', 45 Mad 39 took the opposite view. A reference to this past controversy is necessary in order to appraise the value of the decision relied on by the appellants. Wallis C.J. who was of the opinion that the proviso toSection 185 (before amendment) did not retrospectively prohibit conversion of ryoti land into private land before the Act or the recognition of such conversion as legal by the Court after the Act, even though direct cultivation for 12 years before 1-7-1908 under the proviso to Section 185 (as it then stood) was not proved observed that the test of direct cultivation found in the proviso might well be applied as a test even to other cases of conversion claimed to have been effected in other modes before the Act came into force. 'Zamindar OF Chellapalli v. Somayya',' 39 Mad 341. On appeal the Judicial Committee approved of the application of the test suggested by the proviso toSection 185 even to cases of conversion not falling within the proviso. See 'Mallikarjuna Prasad v. Somayya', 42 Mad 400, P. C. The force of this observation is considerably weakened by the deletion of the proviso to S 185 in 1934. Though Wallis C.J. started by observing that the case "raises a question of importance as to what constitutes private land under the Act" the further discussion shows that the learned Chief Justice was considering only a case of conversion of what was once admittedly ryoti land into private land. He found that the zamindar had at no time directly cultivated the lands which he claimed to have converted and that his treatment of the lands as kambattam in his accounts was merely colourable for the purpose of defeating the occupancy rights of tenants. He referred to 'Budley v. Bukhtoo', 3 NWPHCR 203, itself a case of colourable conversion of ryoti land merely by means of entries in records ag sir or private land, where the Court had observed that "sir land was land which a zemindar had cultivated himself and intended to retain as resumable for cultivation by himself even when from time to time he demised it for season." Seshagiri Aiyar' J. referred to home farm land as land that "has been ordinarily cultivated personally by the landlord at the outset". The policy of the Act is to prevent an extension of private land in a zamindari by a process of conversion or even by legitimate acquisition of the ryoti interest as shown by Section 8 of the Act. The proviso toSection 185 was deleted and a corresponding provision inserted inSection 3(10) (a) in 1934 to emphasise the position that direct cultivation for 12 years before. 1-7-1908 is the only method of conversion of ryoti land into private land recognised by the Act, thereby overruling the views, of Wallis C.J. in the 'CHELLAPALLE case', 39 Mad 341 and Krishnan and Venkatsub-ba Rao JJ. in the 'North Vallur case', 50 Mad 201, and Sadasiva Aiyar J. in the NUZVID case', 45 Mad 39. That this is the effect ofSection 3(10) (a) after' the amendment of 1934 has now been held by the Full Bench in 'Bandhru Jogi v. Seetharamamurti', ILR (1948) Mad 223. The stringent requirement of direct cultivation imposed by law to discourage conversion of ryoti land and to prevent a land-holder from increasing his stock of private land at the expense of ryoti interests need not be imported into a consideration of the question whether a particular land whose origin is not known, is ryoti or private. 66. In the course of their judgment in the 'CHELLAPALLIE case', 39 Mad 341 Wallis C.'J. and Seshagiri Aiyar J. interpreted' the word "domain" in Section 3(10) (a) of the Act as denoting land immediately surrounding the mansion house, park or chase of a lord of the manor and in his immediate occupancy and applied the same test to determine the 'private land of his Indian counter part, the zamindar. Wadsworth O.C.J. and Koman J. in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687 observed that the word "domain", or home farm would connote land appurtenant to the mansion of the lord of the manor kept by the lord for his personal use and cultivated, under his personal supervision. In the 'TEDLAM case, Ramkrishnarao v. Seshayya', A Section 53 of 1946 decided by. the learned Chief Justice and Rajagopalan J. the latter under the impact of these two decisions, felt bound to refer to the lmprententious village house of an absentee mokhasadar as answering the description of the '"mansion of the lord of the manor" and the lands in the village of an extent of 1500 acres as laying round about the "mansion" house. The decisions in the 'CHELLAPALLI Case', 39 Mad 341 and 'Jagadeesam - Pillai's case', I. L. R. (1946) Mad. 687 were, cited, the latter at great length and followed. In my judgment in 'P. Narayadu v. Venkataramanamurti', (1949) 2 Mad LJ 623 I have expressed my dissent from this narrow interpretation of this term and pointed, out that it has no relation to the actual conditions prevailing in this Presidency. "The mansion house" test would not be applicable to this country except in rare cases. It is a matter of common knowledge that Zamindars, Poligars, Jagirdars and major inamdars owned considerable extents of private land in several villages far removed from their dwellings. In England manorial lands were not contiguous and often lay scattered about amongst and intersected by other lands having nothing to do with the manor. The demesne lands fell into three classes (a) lands occupied by the lord of the manor himself (b) lands which the lord allowed his velliens to occupy and cultivate upon certain terms corresponding to the copyhold lands of later, times (c) lands allowed to lie waste or common in which free tenants and copyholders had important rights along with the lord of the manor. The English country side is not organised on the same lines as Indian villages where by reason of facilities for irrigation, cultivable lands usually form a block separated from the inhabitants houses which lie close together usually in the village natham. 67. 'Yarlagadda Mallikarjuna v. Subbiah', 39 Mad L J 277, decided by Abdur Rahim and Burn JJ. was also a case where lands admittedly once ryoti were claimed to have been converted into private lands by the zamindar of Chellapalle. Abdur Rahim J. referred to home farm land as land which the zamindar is entitled to deal with in any way he chooses by contract without being hampered by the provisions of the Act". Burn J. referred to private land as land in which the entire interest is vested in the land-holder and the rights of tenants are based on contract in contrast with ryoti land in which two separate and distinct interests known as melwaram and kudiwaram exist, the former vesting in the land-holder and the latter in the ryot. The learned Judges agreed with the opinion of Seshagiri Aiyar J. In the earlier 'Chellapalli Case', 39 Mad 341, that the only mode recognised by the Act for converting ryoti into private land was direct cultivation by the land-holder for 12 years before 1908. They also applied the test of direct cultivation or retention of land for direct cultivation adopted by Wallis C. J. in the earlier case and held that as there had been no direct cultivation by the land-holder at any time, the lands retained their original character as ryoti lands. The mere description of ryoti lands as kambattam in leases granted by the zamindar during comparatively recent times and the transfer of ryoti lands to the category of kambattam lands in the zamindari accounts without any change in the tenure of the lands and without any idea of taking up direct cultivation were held to be mere colourable transactions. This case went on the same lines as the first 'Chellappali Case', 39 Mad 341. These two decisions do not compel us to hold that where the question is not whether land once ryoti has since been converted into private land but whether the land is ryoti or private land, it must be considered to be ryoti land in every case where there is no proof of direct cultivation by the land-holder for a substantial period. The test of direct cultivation was not insisted upon even for a conversion of ryoti land into private land to the North Vallur Case, 50 Mad 201, overruled by a Full Bench on another point. 68. I shall now proceed to consider the decisions where the question was not one of conversion but of the ascertainment of the true character of the lands as ryotj or private lands. The earliest reported case after Act I of 1908, so far as I know, is the decision in 'Lakshmayya v. Apparao Bahadur', 36 Mad 168, where this Court held that the lands in dispute were the private lands of the Gannayaram Zamindar. There was apparently no evidence in that case of direct cultivation and certainly no such evidence was referred to, or relied upon, in the High Court. The lands had been leased to tenants under muchilikas from 1892 onwards, the lands being described as 'savaram" lands of the Zamindar, a description which, this Court differing from the District Judge, held to be one of ambiguous and uncertain import. Savaram lands which are analogous to 'nankar' lands in Upper India connote lands kept by the zamindar for the support of himself and the members of his family and would 'prima facie' be his private lands according to the notions prevalent in the Northern Sircars. . This Court posed the real question as being "whether the evidence was sufficient to establish that the zamindar was the owner of both the melwaram and the kudiwaram in the lands" and answered it in the affirmative relying on the following circumstances. The lands were treated in the accounts of the zamindar as different from 'seri' or ryoti lands and were held by tenants on rates of rent different from those prevailing for 'seri' lands. Water cess on the lands was paid by the Zamindar while ryots lands. Water cess on the lands was paid by the Zamindar while ryots paid the cess in respect of ryoti lands. In the 'eases granted since 1892 the zamindar asserted, and the tenants admitted, his full proprietary rights in. the lands. In the leases of 1896 and 1897 the lands were let as private lands. Grain rents had been substituted for money rents and the leases had been granted by auction to the highest bidder. This decision is a clear pronouncement that the character of a land as a private land could be established by the modes than by proof of direct cultivation by the landholder. Sundara Aiyar J. held that the Act did not lay down any definite rule as to all the kinds of evidence that might be produced to prove that the lands were private lands and the leases granted subsequent to July 1898 were not shut out by S. 185 of the Act, a view which waa affirmed by Wallis C. J. in the 'CHELLAPALLI CASE', 39 Mad 341, and Krishnan and Venkatasubba Rao JJ. In 'North Vallur Case', 50 Mad 201, and the Judicial Committee in 'Bindeshwari Prasad's Case', 5 Pat 634 (PC). 69. The decision of the Judicial Committee in 'Bindeshwari Prasad's Case', 5 Pat 634 (PC), has in my opinion a very important bearing on the topic now under consideration. The case arose underSection 120 of the Bengal Tenancy Act corresponding to Section 3 (10) (a)' andSections 185 (1) (2) and (3) of our Act. It ia a matter of common knowledge that our Act was modelled on the Bengal Tenancy Act, the Permanent Settlement having proceeded on the same lines in both provinces. In that case the Maharaja of Dumraon, the land-holder, sued for eviction of his tenants from the large extent of lands situated in the zamindari alleging that they were his 'zerait' or private lands. The tenants pleaded that they were ryoti lands in which they had acquired a statutory right of permanent occupancy underSections 20 and 21 of the Bengal Tenancy Act corresponding to Section 6 of our Act. The lands in question were 225 bighas in extent and had emerged in 1843 by the fiuvial action of the Ganges and become part of the zamindari. The bulk of the lands was suitable for cultivation. The entire lands had been leased from time to time by the Maharaja to the Government from 1843 till 1873 when the Government surrendered possession to him. The lands were again leased in 1873 to a Mr. Fox for ten years, the lease being renewed in 1883 for a further term of nine years under a kabuliat which recited 'inter alia' that the lands were 'zerait' (private lands) of the lessor. In 1891 the Maharaja even granted permanent occupancy rights in the lands to Mr. Fox in consideration of his services. Mr. Fox fell into arrears of rent and the Maharaja filed a suit, obtained a decree and purchased the right, title and interest of Mr. Fox in the lands in 1896. Thereafter the lands were leased by the Maharaja to one Akauri Ram for a period of five years. In 1902 the proprietrix of the Dumraon Raj granted a lease of the lands to Keshav Prasad, the father of the defendants, for a term of 7 years, the lands being described in the kabuliat as the zerait lands of the lessor. The lessee agreed that the lessor would be at liberty to lease the lands to anybody he liked at the end of the term. The lessee, and after his death, his sons, remained in possession for the full term of seven years except during a temporary dispossession from some of the lands by trespassers who had no title and who had set up an untenable claim of occupancy right. In the suits filed by the heirs of the lessee for eviction of the trespassers they had described the lands as zerait lands of the Dumraon Raj. Under a fresh kabuliat executed on B-12-1908 by the heirs of Keshava Frasad, the original lessee, the term of the lease was extended till 1925. This kabuliat also contained admissions by the lessees that the lands were the zerait of the lessor and there were also stipulations to the effect that the lessees would not claim rights of occupancy and that the lessor would be at liberty to take and keep possession of the lands himself or settle the lands on any other person at the expiry of the term. On the expiry of the term of this last kabuliat, the lessees declined to give up possession and asserted that they were ryots who had acquired" occupancy rights. The Judicial 'Committee held, affirming the decision 'of the Patna High Court, that the lands were the private lands of the Dumraon Raj in which the lessees could not and did not acquire occupancy rights. Though the lands had never been under the direct cultivation of the zamindar at anytime since their emergence in 1843 and, had always been leased to tenants as zerait lands for varying terms, they were nevertheless held to be the private lands of the zamindar. This conclusion was based only on the terms of the several leases referring to the lands as zerait lands and the admissions of the tenants that they had no right of occupancy in them. The Judicial Committee also held that the admissions in leases executed by tenants after 1883 (the corresponding date under our Act being 1898) negativing a right of occupancy in the lands were admissible in evidence to prove the character of the lands as private lands. In other words, the Judicial Committee did not exclude any evidence admissible under Evidence Act to prove that the lands were the private lands of the Zamindar. The learned advocate "for the appellant distinguished the case as resting on the terms of Section 120 of the Bengal Tenancy Act and as having no application to the construction oj our Act. I am unable to find any appreciable difference between the two provisions. Section 120 (1) (a) of the Bengal Tenancy Act corresponds to the second part of Section 3 (10) (a) of our Act; Section 120 (1) (b) corresponds to the first part of Section 3 (10) (a); and Section 120 (2) corresponds to Clauses 1, 2 and 3 and the first proviso to Section 185 of our Act. Not only is there no material difference in the law applicable but the facts in the Patna case were very much stronger against the case of the landholder who had even gone to the length of creating occupancy rights in Mr. Fox and might therefore well have been presumed to have given up any intention of direct cultivation. He had even purchased the occupancy rights of Mr. Fox at an execution sale for arrears of rent. Under Section 22 of the Bengal Tenancy Act (corresponding to Section 8 of our Act), an acquisition of occupancy rights by the landholder at a rent sale does not enable him to hold the land as ryoti. Nevertheless the Privy Council held that the transaction by which the Dumraon Raj conferred permanent tenancy rights on Mr. Fox did not affect the character of the lands as zerait and when they came back to the possession of the Raj by a purchase at an execution sale, they regained the character which they originally possessed. It is somewhat unfortunate that this decision has not been the subject of consideration by this Court on many occasions when its relevancy was beyond dispute. 70. I shall now deal with the later decisions of this Court. In 'Chinnarigadu v. Rangayya', AIR (22) 1935 Mad 789, the question was whether certain land was ryoti or the private land of the zamindar. There was no evidence of direct cultivation by the land-holder at any time. On the other hand, the evidence adduced by the land-holder consisted of periodical leases originating from 1877. The tenants had been given 'sagubadi' pattas which were different from those issued to tenants of ryoti lands. The lands were described as kambattam and there was a provision in the leases granted before 1891 for surrender of the land by the tenants at the end of the term. The tenants however had not been turned out of the land but allowed to continue from year to year. On these facts Madhavah Nair J. held that the lands were the private lands- of the land-holder though never directly cultivated by him. In the unreported case of 'SRI Thiagarajasami Devastanam v. Muthuswamp, C. M. A. No. 311 of 1943 Krishnaswami Aiyangar and Somayya JJ. dealt with a case of private lands in a whole jnam village which had been granted with both warams to a temple and which became an estate under Section 3 (2) (d) as amended by Act 18 of 1936. The Court held that the mere fact that the land-holder was the grantee of both 'the warams was not sufficient to show that the land was his private land, having regard to the statutory presumption in Section 185 of the Act that land is ryoti and also to ,the provisions of the Sections 185-A and 185-B of the Act. There was no proof of direct cultivation of the land by the landholder at any time, the land having been periodically leased out as required by a scheme framed for the temple. The case fell within Section 3 (10) (b) (1) of the Act, which, in the case of major inams, corresponds to the first portion of Section 3 (10) (a) applicable to the zamindaris; palayams arid jagirs. It was pointed out by the learned Judges that the words "sir", "khas", "khambattam" and "pannal" were given in Section 3 (10) merely as examples of private lands properly so called and that in the case of lands not bearing the particular nomenclature, the Court would still have to find out whether the lands were private lands, i.e., the domain or home-farm land of tho land-holder. The Court relied upon terms in the leases granted before 1st July 1918 implying that the tenants had no right of occupancy in proof of the private character of the lands. The changes in the personnel of the tenants, the variations in the rent payable, the restrictions on the rights of tenants to enjoy the trees on the land, the fixing of a term of years with a provision for surrender of the lands at the end of the term and the periodical auction of the leases to the highest bidder, were relied upon in support of the conclusion that the lands were private lands of the temple. The Court distinguished the cases in the first 'Chellapalli Case', 39 Mad 341, and the second 'Chellapalli Case', 39 Mad L J 277, on the ground that they were cases where the Court had to consider whether ryoti land had been converted into private land before the Act, in which case the test of direct cultivation might be a crucial test. 71. 'Kondayya v. Naganna', ILR (1941) Mad 720, was an appeal from a judgment of Wadsworth J. in 'Kondayyarao v. Naganna', (1939) 2 Mad L J 778, and dealt with a case of conversion of private land into ryoti land by the grant of a permanent right of occupancy by a Mukhasadar to hjs tenants. Wadsworth J. referred to home-farm land as land regarding which the land-holder at least retained an expectation that he would at some not too distant a date, use it for his own cultivation and enjoyment following the 'Chellapalli Case', 39 Mad 341. After examining the relevant provisions of the Act, Leach C. J. on appeal observed: "There was nothing jn the Act as it stood before 1936, nor is there anything in it now, which prevents a land-holder from leasing his private land on whatever terms he may think fit so long as he does not part with the kudiwaram interest." Towards the end of the Judgment the follow ing passage occurs: "The appellants here could have sold the lands in suit to the first respondent absolutely or they could have leased them at any rent they might have agreed upon without separating the kudiwaram right from the melwaram right, but as they chose to separate the kudiwaram right from the melwaram right and grant a permanent right of occupancy on the basis of the payment of rent relative to the melwaram right, they must, in my judgment, be deemed to have converted the lands into, ryoti lands." Leasing by itself does not, therefore, impair the character of lands as private lands. 'Rajayya v. Lakshmana Aiyar', ILR (1946) Mad 181, was also a case relating to the conversion of 'isuwaram' land into ryoti land under Section 3(10) (b) (IV) of the Act. There a landholder had acquired the kudiwaram interest for valuable consideration before 1st November 1933 and had been letting out the land on leases ever since. It was contended that the land had regained its original character as ryoti in the absence of direct cultivation by the land-holder. The Court (Somayya and Patanjali Sastri, JJ.) negatived this contention in these terms: "The mere fact that the lands have been leased to a tenant for a number of years dees not mean that the land-holder has not retained the kudiwaram and that he has converted them into ryoti lands. Proof of intention on the part of the landlord to part with the kudiwaram right is necessary". In a similar case, 'SWAMI VANNIAR v. NAGARAJA', S. A. No. 847 of 1946 Rajagopalan J. observed as follows: "Leases for short period with varying terms would really indicate a definite intention on the part of the land-holder to retain his kudiwaram interest, not that he intended to part with them in favour of the lessee. The fact that the lessee was the same is not enough to prove an intention to part with the kudiwaram interest." I do not see why the same test should not be applied to a case where both the warams originally vested in the land-holder and the question arises whether the lands have become ryoti or where the presumption under Section 185 of the Act is sought to be relied upon, 72. The next reported case on which considerable reliance has been placed by the appellants is 'Jagadeesam Pillaj v. Kuppammal', ILR (1946) Mad 687, the judgment of the Bench being that of Wadsworth O. C. J. Stripped of unnecessary detail, the facts of the case were these. The Rajah of Tanjore had, before his death in 1855, acquired the mirasi rights, i.e., absolute ownership in the lands of Kaduveli village. On the death of the Rajah all his landed properties were annexed by the East India Company as an act of State and kept in the possession and management of the company and its successor, the British Crown, till 1862, when they were regranted to the widows of the Rajah. Owing to quarrels among the widows, a permanent receiver was appointed by the Court in 1866 to manage the lands and divide the income among the widows. The receivers successively appointed by the Court were in possession of the lands till 1928. Thereafter the Kaduveli lands were divided among the claimants to the estate of the Rajah. In 1934 one of them granted a lease of the lands allotted to his share to a tenant for a term of three years. At the end of the term the tenant claimed that the lands were ryoti and that he had acquired occupancy rights under Section 6 of the Act. The land-holders sued to evict the tenant on the ground that the lands were private lands. The learned Judges of this Court held that the lands were ryoti in which the tenant had acquired occupancy rights under Section 6 of the Act. A Full Bench of this Court in 'Sundaram Iyer v. Ramachandra aiyar', 40 Mad 389, held that the villages comprised in the Tanjore Palace Estate were "estates" within the meaning of Section 3(2) (d) of the Act, as it then stood, though the case related to the village ot Uljikadai with reference to which, as pointed out by Sadasiva Aiyar J. it was conceded that there was a grant only of the melwaram. The learned Judges in 'Jagadeesam Pillai's Case', ILR (1946) Mad 687, traced the history of the Kaduveli lands from 1330. The village was then a mirasi village, the lands being owned by the mirasdars as proprietors of the soil. The mirasi rights had thereafter been acquired by the Rajah of Tanjore and on his death in 1855, vested in the East India Company and its successor, the British Crown. In 1856 the Government teased the lands to a purakkudi or outside cultivator for" a term of three years. In 1860 the Government leased the lands to a different tenant with a stipulation for payment of 'miras thunduwaram' in addition to the melwaram in recognition of the Government's right as a holder of the mirasi rights in the lands. After the grant of the village by the Government to the widows of the Rajah in 1862, the lands which were styled as "palace miras" were leased to a tenant with a provision for a payment of 'miras thunduwaram' in addition to the melwaram. The receivers who came into the management in 1866 and continued till 1926 went on granting periodical leases of the lands to the highest bidder, the lands being stated to be absolute property of the land-holder in the leases granted before 1908 and to the private lands of the land-holder in leases after 1908. The lands were proved to have been cultivated in 'amani' in 1870 which, with all deference TO Wadsworth O. C. J. meant direct cultivation. The Court expressed its conclusion on the facts in these terms: "We do not know how the Rajah of Tanjore acquired the mirasi rights In the main village of Kaduveli; but we may take it as established that after the rendition of the estate (1862) there was no recognition of the Subsistence of any occupancy right hi any tenants of the main village who were holding lands under the receivers or under the actual owners of the estate." It is somewhat difficult to understand the exact process of reasoning by which the learned Judges reached their conclusion. If their view was that the village was an estate even under Section 3 (2) (d) of the Act, as originally enacted in 1908, then the acquisition by the Rajah of the kudiwaram or mirasi right even though it was made before 1855 would not convert the land into private land, see Section 8of the Act. Even after the regrant of 1862 the land would continue to be held on the same tenure unless it came within Section 3 (10) (b) (ii) to (v) of the Act which, however, was not the case. The long history of the lands prior to 1862 narrated in the judgment would not be germane unless the learned Judges thought that the Rajah was only a melwaramdar and that by his subsequent acquisition of the kudiwaram interest there was no merger so as to extinguish the kudiwaram right. In the course the judgment, however, the Court proceeded on the basis that the confiscation swept away all antecedent rights of the Rajah, that the grant of the village in 1882 was a grant of both the warams to the Ranis and that the village became an estate under Section 3 (2) (d) of the Act as amended by Act XVIII (18) of 1936. They then proceeded to discuss the meaning of the term "private land" in Section 3 (10) (b) (i) of the Act in the light of thg observations of this Court and the Judicial Committee in THE CHELLAPALLI'S CASE', 39 Mad 341, affirmed on appeal in '42 Mad 400 (PC). 73. Referring to the earlier Judgment of this Court in 'Thiagarajasami Devasthan v. Muthuswami', C. M. A. No. 311 of 1943, decided by Krishnaswami Aiyangar and Somayya JJ. their Lordships observe: "The learned Judges deal with the definition in a way which, with very great respect, we find difficult to reconcile with the decision of the Privy Council just quoted. (Chellapalli Case', 39 Mad 341, affirmed on appeal in 42 Mad 400 PC). We are not concerned with the correctness of the unreported decision on the particular facts before the learned Judges; but with some of the observations contained in that judgment we must express our respectful disagreement." It is rather unfortunate that the learned Judges did not point to any passage or any of the reasons contained in the judgment they were criticising but considered it sufficient to express a general feeling of dissatisfaction and disapproval. They, however, laid down the tests for ascertaining whether a land was private land or ryoti in an estate in these terms: "It seems to us that 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 land-holder's residence and kept for his enjoyment and use. The home-farm is land which the landlord farms himself as distinct from land which he lets out to tenants to be farmed. The definition read as a whole indicates clearly that the ordinary test for "private" land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision. No doubt such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it does seem to us to be In consistent with the scheme of the Madras Estates Land Act as amended 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 those 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 Madras Estates Land Act cannot acquire occupancy rights." I have already stated that there is no warrant for confining "private lands" to land adjoining or appurtenant to the residence of the land-holder or to land that is kept for the personal enjoyment and use of himself and his establishment. The learned Judges themselves seem to concede that prool of direct cultivation is only one method of establishing the character ol a land as private and that it can be established by some clear indication of an intent to regard the land as retained foV the personal use of the landholder and his establishment. Why may not this indication be gathered from the terms of the leases themselves under which the lands have been let to tenants? The learned Judges did not give any indication ol how "the clear indication" insisted upon by them is to be futher nished or gathered. The short term leases granted by the Receivers as well as by the Government were, as their Lordships themselves point out, qn the footing that the lessors were owners of both the warams and wholly inconsistent with the recognition of any right of occupancy in any of the tenants who were holding under such leases. Except for one year during which the village was cultivated in 'amani', there was no evidence of direct cultivation by the land-holder in that case. In spite of different tests differently worded and indicated in the different portions of the judgment, perhaps the only basis on which the conclusion of the learned Judges rests is that proof of direct cultivation for a substantial period of time Is absolutely essential to prove the character of lands as private lands in cases coming within Section 3(10) (b) (i) of the Act. If so, I am not prepared to go so far as the learned Judges have gone in that case. 74. The decision of the Full Bench In 'Bandharu Jogi v. Seetharamamurti, ILR (1948) Mad 223 (FB), merely decided that in view of the amendment of Section 3 (10) (a) and Section 185 of the Act in 1934, the only mode ef converting ryoti land into private land sanctioned by the Act is by direct cultivation of the land by the land-holder with his own servants or by hired labour and with his own or hired stock for a continuous period of 12 years, before 1st July 1908, the date when the Act came into force. Some of the reported decisions which have already been referred to in this judgment were also noticed by the Full Bench but the case was one of conversion of ryoti land into private land. The Court had not to deal with the situation which has now arisen and to ascertain for the first time whether a particular and was private or ryoti. In 'Narayadu v. Venkataramanamurti, (1949) 8 Mad L J 623, I held that the lands there in question were private lands relying on the course of dealing between the zamindar and the tenants as evidenced by leases from 1877 to 1939. I also pointed out that the test of direct cultivation was a useful test but direct cultivation was not an indispensable part of the evidence requisite for establishing that a land, whose character as private or ryoti is under investigation, falls within the former category. In 'Ramakrishnarao v. Seshayya', A. S. No. 53 of 1946, it was held by the learned Chief Justice and Rajagopalan J. that the lands in question in that case were private lands, relying on the evidence of direct cultivation by the land-holder of different portions of the land at different times with his own stock. Passages from the judgment of Wadsworth O. C. J. in 'Jagadeesam Pillai's Case', ILR (19.46) Mad 687, were quoted 'in extenso' and with evident approval and the tests for mulated in the judgment were applied. As there was ample evidence of direct cultivation by, the land-holder in that case, the further question whetner its absence was fatal to the claim of the land-holder had not to be considered. 75. The last of the cases to be noticed is a decision of Subba Rao and Chandra Reddi JJ. in 'Parish Priest of Karayar Parish v. Kattalai of Sri Thiagarajasami Devastanam', A. S. Nos. 176 to 178 and 493 of 1946, which related to lands in inam villages which had been granted to the Sri Thiaga-rajaswami Devastanam. The learned Judges held that lands of the extent of about 1000 acres involved in those appeals were not private lands of the temple but were ryoti lands in which a lessee of the lands from the Executive Officer of the temple had acquired permanent rights of occupancy as a result ol the amending Act XVIII (18) of 1936. The Court outlined the origin of private lands as lands directly cultivated by tribal chieftains through their farm servants or hired labour and waste lands gradually brought under cultivation by them with their own servants or hired labour. It was pointed out that "even if a land is known as kambattam or pannai, unless it satis fled the characteristics of a domain or home farm land, it cannot be private land within the meaning of the Act". The description o| "domain" land in the Encyclopaedia Brittanica and the definitions of "kambattam", "sir",, "khas" and "pannai" in Wilson's Glossary were referred to. The learned Judges relied upon the 'Chellapalli Case', 39 Mad 341 and 'Jagadeesam Pillai's Case'. ILR (1946), Mad 687, and applied the 'BUDLEY v. BUKTOO', 3 N W P H C R 203, test adopted by Wallis C. J. as a correct test for ascertaining whether a land was ryoti or private land. They laid down that in addition to the recitals in lease deeds, there must in every case ba evidence that the land in its origin was directly cultivated by the landlord or reserved by him for his own direct cultivation. The grant of short term leases with a provision for re-entry by the lessors on the expiry of the term was not sufficient to indicate an intention to resume direct cultivation. They further held that direct cultivation by the land-holder; for a few stray years was of no avail as in their opinion such cultivation might have been necessitated by the dearth of persons willing to take the lands on lease. The previous unreported decisions of this Court were not individually referred to or examined but distinguished on the ground that they were all decisions rendered on their own facts. The learned Judges rested their decision against the landholder Devastanam on various other grounds also which are now not germane. 76 . I may now summarise my conclusion on the legal aspects of the case. Where land prayed or admitted to be once ryoti land is claimed to have been converted into private land, the claim is untenable unless the land-holder proves direct cultivation for a period of 12 years before 1st July 1908. No other mode of conversion is permissible. Where you have to find out whether a land is private or ryoti its original character not being known, proof of direct cultivation of the land by the land-holder for 12 years before 1st July 1908, would, without other evidence, conclusively establish its character as private land, but this is not the only mode of proof permitted to land-holder. Other evidence may be adduced and looked into and might consist, among other matters, of direct cultivation of the land at some period anterior to the 12 years preceding 1st July 1908 but this is not indispensable. Direct cultivation may be valuable and weighty evidence and may be inferred from accounts and other records usually kept by large land-holders. If, owing to lapse of time or other reasons, evidence of direct cultivation is not forthcoming its absence is not fatal to the claim that the land is private. Section 185 of the Act does not shut out, but on the other hand allows all evidence that would be relevant arid admissible under the law of evidence, to prove that fact in issue, namely, whether the land is private or ryoti. Local usage or custom and the letting of the land as private land in leases before 1898 are specifically mentioned in Sections 185(1)and (2) as being relevant evidence but other evidence is also expressly made admissible under Section 185(3). The classification of lands as private lands at the time of the permanent settlement or in the early records of zamindaries, the terms of the grant of an undertenure, the assertion and enjoyment by the land-holder of the right to both the warams, the intention to retain with himself the kudiwaram right and the consequent right to resume direct cultvation if he chooses, ceases of the lands as private lands or with terms and conditions inconsistent with any right of occupancy in the leases, admissions by tenants that the land-holder is the owner of both warams and that they have no occupancy rights, changes in the personnel of the tenants, variations in the rates of rent payable by the tenants -- these and kindred matters would be relevant and admissible in evidence to prove that the lands are private lands. The probative value of such evidence depends on the facts and circumstance of each case. The burden of proof that a particular land in an estate is private land rests on the landholder, the statutory presumption being the other way. This burden is not discharged merely by proving that both the warams were granted to or enjoyed by the land-holder once upon a time. There must be evidence of the treatment of the lands as private lands by the land-holder, either by direct cultivation or otherwise in the manner above stated. 77. There is one feature of these cases which requires special mention. The leases granted from time to time to the tenants are styled "Swamibhogam leases" and there is a stipulation in all of them for payment by the tenant of swamibhogam to the landlords in addition to the melwaram proper. If the tenants had a right of occupancy in the lands they could have objected to the imposition of this liability for swamibhogam in addition to the rent; but they never raised any such objection. It has been pointed out in several decisions that the payment of swamibhogam by the tenants is a clear admission that the landlord is the owner of both the melwaram and the kudiwaram right in the land i.e., that he was the absolute proprietor of the soil 'NAINA PILLAI v. RAMANATAN', 33 Mad L J 84, at p 98; 'MOHAMAD ROWTHER v. MUTHU ALAGAPPA CHETTIAR', 34 Mad L J 234 at p 245; 'SUBRAMANIA v. SIVASUBRAMANIA', 41 Mad L J 175; 'Subramania Chettiar v. Subramania Mudaliar', 57 Mad L J 1 (P. C.). At page 285 of the Ramnad District Manual it is stated as follows: "Pannai lands are those in which the Zamindar or Inamdar owns both the land lord's right and tenant's right He can lease out the lands to anyone he likes for cultivation and obtain from him "swamibhogam" or "thunduwarani", a rent obtained in acknowledgment of the land lord's tenancy right in the soil in addition to the melwaram or landlord's share." 78. 'Swamibhogam' is supposed to be taken out of the kudiwaram or cultivator's share of the produce and paid in addition to the mel waram or landlord's share. It consists of a one-tenth or a greater share of the kudiwaram produce which the tenant pays to the land lord aiong with the melwaram. 'Thunduwaram' resembles very closely the 'swamibhogam' and it is also a portion of the kudiwaram paid by the tenant to his immediate landlord in addition to the melwaram. The 'swami bhogam' is a fixed amount while the 'thundu warani' may vary in proportion to the amount of crop actually harvested. The description of the leases in the present case as 'swamibho gam' leases as well as the provision in these leases for the payment of 'Swamibhogam in ad dition to the melawaram by the tenants to the trustees of the temple would indicate an inten tion on the part of the land-holder not to part with the kudiwaram interest but to retain the lands as resumable by him for direct cultiva tion in the future. Mr. A. Sundaram Aiyar relied on the decision in 'Sivanupandia thevar v. Zamindar of Urkad,' 41 Mad 109 where it was held that "swamibhogam" was part of the rent lawfully payable by a ryot to the landholder. There the lands were admitted to be ryoti and the tenants were ryots. The only question was whether the 'swamibhogam' paid all along to the landholder was an illegal levy or part of the rent lawfully 'payable and it was held to be a part of the rent. The origin of the payment in that case was not known and it had been paid for a long time as a component part of the rent. 79. The evidence adduced in these cases to support the claim of the plaintiffs that the lands are private is somewhat meagre and of a poor quality. At the same time it cannot be said that irrelevant evidence has been admit ted or that there is no evidence in support of the findings of the Courts below. Nor have the Courts below misdirected themselves on any point of, law. I agree with my learned brother, Satyanarayana Rao J. as regards the result of these second appeals and civil revi sion petitions. 80. RAGHAVA RAO J:- These second appeals and civil revision petitions raise two questions of some difficulty (1) whether the village in question is an estate within the Madras Estates Land Act, and (2) whether the land in the possession of the defendants is private land of the plaintiff-land-holders. Both the Courts below have answered both these questions in the affirmative. The defendants are the appellants and the petitioners in these cases. 81. At the conclusion of the arguments I found myself by no means certain in regard to the answer to hbe givne to the second question,' although in regard to the answer to be given to the first I more or less made up my mind in favour of the appellants. I have had the advantage since of perusing the judgments of my learned brethren in order to arrive at a decision in their light as well as in the light of the arguments. 82. On the first of questions I agree with my learned brethren that the suit village must be held to be an estate with reference to Section 3 (2) (e) and not Section 3 (2) (d) of the Madras Estates Land Act. The view of the learned Subordinate Judge On appeal in concurrence with the conclusion of the learned District Munsif at the trial holding the village to be an estate with reference to the latter provision of the statute is beset with too much of error to commend itself to my acceptance. The grant which is not badshahi or royal is not of 1720 A. D. as supposed by the learned Subordinate Judge but of 1798 A. D. The year 1720 referred to in Ex. P. 26 does not relate to the era beginning with the death of Christ but to Saliyahana Saka as found out by us on our investigation at the hearing. Even on the assumption that the Dindigul referred to in Section 2 of Madras Regulation XXXI of 1802 included the area in which the suit village is situate, the grant does not satisfy the description of a grant made before the lath day of March 1792 for it to attract the validating declaration contained in that section. Nor does Ex. P. 26 relate to a register maintained under Section 15 of the Regulation. It may be that the character of the grant as that of a village was not disputed in the Courts below and is not unnecessarily belied by the contents of Ex. P. 26. But the question still remains whether, not having been dealt with by the Inam Commission, the grant can be said to be a village recognised by the British Government as contemplated by Section 3 (2) (d). The declaration in Section 2 of the Regulation not being applicable to the case and the entry in Ex. P. 26 not being one made in a register maintained under the regulation, the only other features remaining for consideration out of those relied tin by the lower appellate Court for bringing the suit village within Section 3 (2) (d) of the Act are, firstly the direction contained in the Inam Rules framed in 1859 or so for the guidance of the officers are concerned with the Inam Settlement, that all inams held uninterruptedly for a period of 50 years should be treated as possessed under a valid title whatever may have been the origin and secondly, the, collection of road cess by the Government from the inamdars. As regards the first, the fact remains that the rules never came into effect with reference to suit village which has been left severely alone arid not at all touched by the Inam Set tlement of the sixties of the last century or in any latter settlement. I am not satisfied that 'Thirumalai v. Bangaru,' 21 Mad 310 which related to the construction of Section 4 of the Pensions Act XXIII of 1871 is of any assistance to the determination of the present point as supposed by the learned Subordinate Judge. The argument in that case was that by confirming the grant of a village by a Sivaganga Zamindar to a Ma-dura Naick at the time of the Inam Settlement the Government must be deemed to have themselves made a regrant, and that a Collector's certificate was therefore required for the suit there in question to be maintainable. The argument was repelled for the reason that assuming that the act of the Government in confirming the inam amounted to a regrant of it, it could not be said that the giving of land free of the revenue is a grant of land revenue- so as to bring the case within the provisions of the Pensions Act. The basis of, the argument there -- namely a confirmation of the grant by the Government at the Inam Settlement -- does not exist here, and, in my opinion, the mere general direction in ihe Inam Rules above referred to not carried out admittedly at any Inam Settlement in relation to the suit village cannot be regarded as a recognition of the suit village by the Government as an inam for the purpose of Section 3 (2) (d) of the Madras Estates Land Act. Nor am I satisfied that the mere collection of road cess by the Government in respect of the suit inam village is such a recognition --a recognition, I mean, of the validity of the original grant which has so far remained untouched by the Government. If as opined by the late Mr. Ramadoss in his commentary on the Act at pages 53 and 54 the word "recognised" might apply to the case of those inam grants which did not form the subject of the Inam Commissioner's inquiry but which have not been disputed, cancelled or resumed by the British Government i.e., those which have been continued by an implied consent without express confirmation, there would perhaps be some point in the reliance placed by the learned Subordinate Judge on the two features above mentioned. The question hpwever has been raised in' a case decided subsequent to the publication of that commentary in 'Sam v. Ramalinga, 40 Mad 664 whether the word "recognised" required something more than acquiescence by the British Government. The inclination of opinion expressed by one of the judges in that case (Srinivasa Aiyangar J. -- later. Sir K. Srinivasa Aiyangar) is that recognition implies something more than acquiescence, something done by the Government, as for instance by acceptance of service, jodi, etc. From that inclination of opinion of that distinguished Judge, I am not prepared to dissent, supported as it is by the analogy of the decision in 'Secretary of State v. Bhamumurthi,' 24 Mad L J 538 which was no doubt a case under ihe Madras Proprietary Estates Village Service Act II of 1894 but which in construing similar words "lands granted or continued by the State" occurring in Section 17 of that Act held that "continuance" in the context of the section implied a recognition by the Government of the right of the inamdar which could have been set up by him in support "of his possession, and that mere sufferance by the Government or forbearance from taking steps which it might have been open to the Government to take or collateral expressions of opinion not intended to be recognition or confirmation of the right of the holder would not amount to. continuance. 83. Section 3 (2) (d) of the Madras Estates Land Act being inapplicable for the reasons indicated, the question is whether Section 3 (2) (e) catches the village concerned in this case. I am distinctly of opinion that it does Exs. P: 23 and P. 24 make it reasonably clear, that the village was the subject matter of a pre-settlement inam included later in the assets of the zamindar at the time ot the Permanent Settlement as an 'ayan' village in respect of which there was a subsequent reduction of rent payable to the zamindar by the 'inamdar' by way ot 'Dharmasanam' grant. That being BO, the village is In the nature of an undertenure (ailing under Clause (e) of Section 3(2). 84. I may state before passing on to the second question arising for determination that I have had to say so much as I have said on the question whether or not the suit village falls within Clause (d) ot Section 3(2) because In answer to an intimation of opinion from the Bench during argument that Clause (e) and not Clause (d) of Section 3(2) would govern the present case--a position which the learned advocates for the respondents accepted without any objection--the learned advocate for the appellants-petitioners stated that he was not prepared to abandon his contention as to the applicability of Clause (d) whatever our opinion about the applicability or inapplicability of Clause (e). 85. On the second question 1 felt a good deal of doubt as to the true view to take during the progress of the argument which did not by any means stand resolved at its conclusion. The uncertainty in which I was left was because of two conflicting considerations. On the one hand there was the natural feeling of the strong reluctance to overrule a whole catena of decisions beginning with 'Zamindar of Chellapalle v. Somayya', 39 Mad 341, a decision of Wallls C. J. and Seshagiri Aiyar J. of 1914 and ending with two latest judgments of this year not yet reported of two different Benches -- that of Rajamannar C. J. and Rajagopalan J. in 'Ramakrishna v. Seshayya', A. S. No. 53 of 1946 and that of Subba Rao and Chandra Reddi, JJ. in 'Parish Priest v. Kattalai of Sri Thiagarajasami Devastanam', A. S. Nos. 176 to 178 and 493 of 1046 all priroa facie speaking In one voice favourable to the contention of the learned advocate for the appellants and petitioners before us except a solitary decision in 'Thiagarajasami Devastanam v. Muthuswami', C. M. A. No. 311 of 1943 striking" a discordant note. Further in between 1914 and 1949 there is the decision of the Judicial Committee of the Privy Council in 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, which affirmed in appeal the decision of the High Court in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341. Further still there are two decisions of Division Benches in 'Mallikarjuna Prasada Naidu v. Subbiah' 39 Mad L J 277 and 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687 and one decision of a Full Bench in 'Bandharu Jogi v. Seetharamamurthi', ILR (1948) Mad 223, in which the test of direct cultivation for ascertaining the character of private land propounded in 'Zamindar Of Chellapalli v. Somayya'. 39 Mad 341, which has been insisted upon .for the appellants and petitioners before us has been accepted. On the other band, there seemed to go against the appellants and petitioners a ruling of the Privy Council in 'Bindeshwari Prasad v. Kesho Prasad', 5 Pat 634, which, if indistinguishable, must needs mean-an end of these appeals and revisions. 86. Before I deal with 'Bindeshwari Prasad v. Kesho Prasad'. 5 Pat 634, I shall deal with the decisions of this Court bearing on the point falling to be decided in order to ascertain their result, and before I deal with them, I wish to draw attention to a few fundamental considerations required to be borne in mind, in my judgment, for a correct construct ion of the statute with which we are concerned in the light of which I propose to ascertain the true interpretation of the relevant provisions of the statute, as I conceive it. 87. The Madras Estates Land Act as pas sed in 1908 is a declaring and amending Act as the preamble shows, and it has since under gone vital changes in the years 1934 and 193.8 in several particulars more especially in regard to the definitions of "estate" and "private land." The original Act & the changes from time to time have, as everybody knows, been dictated by Governmental policies calculated to extend the sphere of "estates" and further the rights of "ryots", to limit the extent and define the character of "private land" and to discourage the growth, and expansion of "private land" by the unjust efforts of land-holders. It is impermissible, in my opinion, for any Court in construing any statute and much more so in construing a statute of this description' passed to amend as well as declare the law re lating to the holding of land In estates in the Presidency of Madras, to press into service his torical knowledge or to resort to the antece dent state of the law, except for resolving doubts arising on the language of the enact ment or for supplementing it in matters not covered or dealt with by it. The Court is not concerned with giving either more or less effect to the policies and purposes of the legislature than is warranted by the letter of the statute except where the golden rule of literal con struction as Lord Wensleydale described it ia an early English case in the House of Lords 'GRAY v. PEARSON', (1857) 6 H L 61 at p. 106, entails anamolies bordering on manifest absurdities and futilities leading to palpable injustice and infringing all reasons whatsoever. "Private land" may have meant anything according to Baden Powell or other text book writerg or Judges prior to the passing of the Estates Land Act. What "private land" means as defined in the statute is, however, a matter to be ascertained in accordance with the precise language of the Statute as interpreted by decisions rendered subsequent to the enactment of the statute without prepossessions or preju dices derived from or founded upon a know- ledge of the prior state of the law. The sta tute must of course be read as a whole, and Section 3 (10) and Section 185 may have to be taken together so as to harmonise with each other - a matter to which I shall address myself in detail in the sequel. But the well-settled principle is that the language of a statute must not be strained and the scope of any definition therein extended so as to make it apply to a case to which it does not legitimately on its terms apply by invoking consideration of the supposed intention of the legislature or by seek ing to assimilate the law under the statute somehow to the law in force prior to the en actment, even if the latter be found to be different in any respect from the former. 88. Then, again, the construction of at statute couched in English language can only be according to the meanings of the English, words used in it, as those meanings can be ascertained from English Lexicons, Law Lexicons preferably and particularly. The employment of English as the vehicle of our statutory enactments had been the inevitable feature of our legislative We so far, and until the day comes when it ceases to be that, it is no good complaining of that feature however unfortunate it may be. It may or may not have been the fault of the legislature to use words belonging to a foreign system of jurisprudence as the best possible approximates or the nearest possible equivalents available in the language of the English Law for giving effect to concepts connected with our own indigenuous system of land tenures. While of course differences in fundamentals between the two systems ought not to be overlooked, affinities where they exist, ought not to be ignored either. Bearing in mind the affinities as well as the differences, if decisions of this Court have construed the English words of the statute in their English sense so as, it may be, to produce results disharmonious to the antecedent state of the law, such disharmony is, in my opinion, no ground for expanding the scope of the statute so as to accord with such a state of the law. No "Judicial embroidery" -- to use the figurative phrase used by my learned brother, Viswa-natha Sastri J. which by the way as I shall show hereafter is with due respect by no means a correct phrase in which to characterise the decisions relied on by the learned advocate for the appellants and petitioners before us -- which has been imported by Judges into the interpretation of the Act need or ought to lure us or confuse us. But no Judge need or ought to reshape the substance at the root, rewrite the language of the enactment itself so as to perpetuate the state of the law prior to the enactment, merely because his notions as derived from that state of the law may stand violated by the English words employed by the legislature understood in their English sense. If there is vice or mischief at the basis of a legislative enactment it is not the province of the Court to remedy it of its own initiative by what is sometimes described as judicial legislation. It is for the legislature itself if it so chooses to intervene to that end and for that purpose. 89. I may observe further that the rule of 'stare decisis' which is an integral part of every system of administration of justice governed by precedents is a rule not to be lightly regarded or readily departed from. I, for one, see nothing wrong in the adoption by Judges in later cases of a 'locus classicus' in an earlier decision which has expounded the definition in a statute in a correct and exhaustive manner or in their construction of the words used in sucb an exposition as if they were themselves the words used ip the statute. As will be shown hereafter, the topic with which we are concerned has not been as supposed by my learned brother, Viswanatha Sastri J. 'darkened' by any false analogies drawn with feudal tenures or manorial customs but only sought to be dimmed by an attempt made in just a case or two to get away from the authority of a fully considered and binding exposition of the law by distinguished Judges such as is contained in 'Zamindar Of Chellapalli y. Somayya', 39 Mad 341, which, affirmed, as it has been, by the Privy Council in 'Zamindab of Chellapalli v. Somayya', 42 Mad 400, and adopted as it has been in later cases by the learned Judges of this Court, has stood the field and governed the notions of litigants, lawyers and Judges in this Province for three decades and a half. 90. I have considered it not only proper but necessary to make the foregoing remarks founded on principles of Statute construction so elementary as even to seem platitudinupus in justification of my dissent from the view of my learned brethren on this part of the case. Of course, if the authority of a superior tribunal such as is alleged to exist in 'Bindeshwari Prasad v. Kesho Prasad', 5 Pat 634, of the year 1926 overruled expressly or impliedly the view taken in earlier decisions here which all the same has been followed by learned Judges in later cases the matter would stand on a different footing. Likewise, should I be satisfied that the statement of law to be found in 'Zamindar or Chellapalli v. Somayya', 39 Mad 341, which has been accepted in later cases is not the 'ratio decidendi' but only an 'obiter dictum' I might not hesitate to disturb the course of decisions if I found the dictum to be obviously erroneous, although, even then, there would be the difficulty in my way that the 'obiter dictum' accepted and approved as it has been by the Privy Council in 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, in an appeal from the same case must of course be followed by me. Even viewing my powers as a member of a Bench of three Judges not necessarily bound by any decision of Divisional Benches one way or the other, I should think that I have still to prescribe for my guidance the considerations expressed in the following passage in Section 557 pages 257 and 258 of Lord Hailsharn's Halsbury's Laws of England, Vol. 19: "Apart from any question as to the Courts being of subordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by Courts of higher authority than the Court establishing the rule even though the Court before whom the matter arises afterwards might not have given the same decision had the question come before it originally But the supreme appellate Court will not' shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside a statute and outside the common law, when no title and no contract will be shaken, no person can complain, and no general course of dealing be altered by the remedy of a mistake: and where the course of practice is founded upon an erroneous construction of an Act of Parliament, there is no principle which precludes, at any rate, that tribunal from correcting the error, although the construction of a statute of doubtful meaning, once laid' down and accepted for a long period of time, ought not to be altered unless the House of Lords can say positively that it to wrong and productive of inconvenience. Furthermore, the same considerations do not apply where the decision, though followed, has been frequently questioned, and doubted. In such case it may be overruled by any Court of superior jurisdiction." After all, this Court is not the supreme appellate Court of the land, although this Bench is of superior authority to that of Divisional Benches. The law laid down in 'Zamindar OF Chellapallj v. Somayya', 39 Mad 341, has been accepted and acted upon for a long time. Neither the Privy Council (leaving alone for the moment 'Bidheshwari Prasad v. Kesho Prasad', 5 Pat 634), nor the Federal Court has so far said that it is wrong and productive of inconvenience. It is not as if the law so laid down has been frequently questioned and doubted. It has been questioned and doubted in just a case or two, as I have already observed, there too not on any valid ground, as I shall show hereafter. 91. Next, before concentrating attention on the view taken in the decisions of this Court I should like to define the exact contentions of counsel before us and to notice the relevant provisions of the Statute. 92. The contention of the appellants and petitioners as I understood it is not that there should be direct evidence of direct cultivation by the land-holder of the property claimed by him to be his private land at some time or other and for an appreciable or substantial period of time. The contention broadly stated is that there must be some proof--direct and positive or indirect and circumstantial it does not matter -- of direct cultivation by the landholder at some time or other and for some time or other. It may be proof furnished by any evidence admissible under the Indian Evidence Act Consistently with the provisions of the Madras Estates Land Act. But it must be evidence tending to show, except where a local custom to the contrary is proved, that at some "time or other and for some time or other the land was actually under the direct cultivation of the land-holder, that is, by himself, his own farm servants or hired labour. If after that, there happens to be any leasing out, as there may well be, the leases must be of such a kind and character as to be consistent with an intention on the land-holder's part to resume direct cultivation in the future. Such direct cultivation except in cases of local custom to the contrary is a fact to be proved as a requirement implicit in the definition of private land before the presumption that all cultivable land in an estate is ryoti can stand rebutted. Where admittedly ryoti land or cultivable land in an estate not proved to have been of the character of ryoti land or of private land at the inception has been proved to have been the subject of direct cultivation by the land-holder for a continuous period of 12 years it automatically gets impressed with the stamp of private land by force of an express statutory provision. Into the case of ascertainment of the character of land as private land for first time as well as into the case of ascertainment of the conversion of admittedly ryoti land or land; the exact character of which is not known, into private land, the idea of direct cultivation as a 'sine qua non' does in the learned counsel's submission enter; only, in the latter case the period of direct cultivation must be full 12 years before the 1st day of July 1908. The contention for the respondents, on the other hand, is that direct cultivation is the exclusive test only in cases of conversion of admittedly ryoti land into private or in cases where land whose exact character as ryoti or private is not known earlier but which is proved to have Been the subject of such cultivation for a period of 12 years immediately before the commencement of the Act is claimed by the land-holder to be his private land. It is also urged that reading Section 3(10)(a) with Section 185 (with the second proviso of the latter section excluded), it becomes clear that there may well be other modes of proof of the character of land as private land than proof of its direct cultivation at some time or other and for some time or other. 93. The relevant provisions of the Madras Estates Land Act are those of Section 3(10) (a) (excluding the inclusive part) and Section 185 (with the second proviso excluded)--one a definition section, the other an evidential section. There are other provisions proving the lettability of private land and providing for exchange of pattas and muchilikas in connection therewith which are not, in my opinion, material, as it is not the contention for the appellants and petitioners that there can be no letting at all of private land which is such by reason of proved prior direct cultivation. The definition section so far as it is plain cannot be controlled in its operation by the evidential section which must accordingly be read except whore it contains matter repugnant, in conformity to the definition section. Only when the definition section is ambiguous can such light as may be thrown upon its meaning by the evidential section be carved in aid of the interpretation of the definition section. 94. The relevant part of Section 3(10)(a) uses two words "domain" and "home-farm" as signifying two categories of private land within the intendment of the statute. The meaning of each one of these two words it is necessary to ascertain in order to arrive at a proper decision in the present case. Neither "domain" nor "home-farm" is defined in the statute; but in regard to "home-farm" in particular, beyond what is implicit in the word itself the legislature gives a further clue to its meaning by use of illustrative terms in the explanatory phrase "by whatever designation known, such as 'kambattam', 'khas', 'sir' or 'pannai". These illustrative terms are popular labels the use of which 'prima facie' connotes the character of the land as "home-farm". The legislature intends them only as interpretative aids by no means either exhaustive or conclusive with reference to the application of the statutory test of "home-farm", the interpretation of which is the primary matter for consideration. 95. To take up the meaning of the word "domain" it has been defined in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, as "the land about the mansion house of the Lord and in his immediate occupancy." To that interpretation of the word no exception has been so far taken except ill a recent decision of my learned brother, Viswanatha Sastri J. reported since the hearing of this case in 'Narayudu v. Venkataramanamurthi', (1949)-2 Mad L J 623, and in his judgment in this case just delivered. The passage in the former judgment which embodies the exception taken is as follows: "There has been, in my judgment, some amount of misconception as regards the meaning of the words "domain" or "home-farm" land of the land-holder -- expressions found in Section 3(10)(a) of the Act. To interpret these words as confined to 'land immediately surrounding the mansion or the dwelling house, the park or chase of the Lord' which would be the dictionary meaning of these English words is to import feudal ideas of medieval England into the system of land tenures in this country without adequate justification ......... It is a far-fetched construction to impute to the Madras Legislature an intention to incorporate the English conception of "demesne" land as a test for differentiating the public domain from private land in a zamindari." In the Judgment of my learned brother just delivered there are two passages pertaining to this point, one is where the conclusion expressed in the passage just quoted is repeated which I need not reproduce. The other is where the conclusion expressed in the passage just quoted is repeated which I need not reproduce. The other is where my learned brother refers to the three classes of demesne lands existing in England in support of his view that the mansion house test as the compendiously describes it, bears no relation to the actual conditions, prevailing in this presidency. "It is a matter of common knowledge", says my learned brother, "that Zamindars, Poligars, Jagirdars and major inamdars owned considerable extents of private land in several villages far removed from their dwellings." The three classes of demesne in England are then described by my learned brother as follows: (a) lands occupied by the Lord of the manor himself; (b) lands which the Lord allowed his villains to occupy and cultivate upon such terms corresponding to the copyhold lands of later times; and (c) lands allowed to lie waste or commons in which free tenants and copy-holders had important rights along with the Lord of the manor". 96. Of the three classes of demesne property in England the first, in my opinion, does correspondingly exist in this country as well. In most cases of land-holders it is common knowledge that they not only have land immediately surrounding their dwelling houses but also have it in their immediate occupancy. There is no fundamental difference in this respect between conditions in England and in India, and I canndt see how if a meaning had to be given to the English word "domain" occurring in an Indian Statute any other meaning could reasonably be given to it than the one given from Webster's Lexicon by Wallis C. J. in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, namely, "the land about the mansion house of a Lord and in his immediate occupancy" in which Seshagiri Aiyar J. concurred after his own independent reference to the Encyclopaedia Britannica which brought into his judgment- more matter, not strictly relevant, about the English feudal tenure of land let out by the Lord of the manor as tenemental land to his retainers or villani --the origin of the modern copyhold tenure in England -- and which has apparently provoked the comment of my learned brother on the undesirability of importing conceptions connected with the feudal tenures of medieval England into the interpretation of a Statute like the Madras Estates 'Land Act. The comment understood in that limited sense may well stand justified; but in the absence of any alternative', interpretation of the word "domain" which certainly has not been vouchsafed by my learned brother and in view of the existence in India of lands about the dwelling house of the land-holder in his immediate occupancy corresponding to such land in existence as demesne in England the meaning of the word as given by Wallis C. J. in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, must, in my opinion, be accepted. In fact, it will be seen from the passage in 'Narayudu v. Venkataramanamurthi', (1949) 2 Mad LJ 623, quoted above that the exception taken by my learned brother is not to the meaning of the word "domain" as such so much as to the meaning of the two expressions "domain" & "home-farm" which, as he supposes, have been taken together & interpreted, rather misinterpreted, as confined to land immediately surrounding the mansion or dwelling house, park or chase of a Lord. I regret I cannot and do not share this view. In fact in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, while the meaning of the word "domain" is specially noticed it is not that the word "homefarm" has been ignored by the learned Judges. It will be seen from the discussion in that case that the word "home-farm" has not been confused with "domain" but interpreted and given effect to with reference to the land in question in that case. The question in that case in fact arose with reference to other than domain land, i.e., land situated far away from the dwelling house of the zamindar and actually in a village of the zamindari known as 'Iyanki' different to the village Chellapalli in whcih the dwelling house of the zamindar was situated. In that case as well as in other cases in which the question of the character of the land as private or ryoti arose with reference to the lands situated far away from the dwelling house or in any other village or villages than- the village in which the dwelling house was situate, the work of the Court in the matter of the determination of the character of the land would have stood absolutely simplified, had the mansion house test been applied. In that case it was not the word "domain" but the word "home-farm" that fell to be applied to the land in question, and the test of direct cultivation propounded was really because of what was implicit in the word "home-farm". It is not correct, in my opinion, to say that the Judges who decided that case treated the words "domain" and "home-farm" together as importing that the zamindar's private land must be confined to land surrounding his place or residence as in the case of demesne land of an English Lord of the manor. I not only feel highly reluctant, I find it in fact wholly impossible to impute to Judges so distinguished and so experienced as those who decided that case any ignorance of the very well known fact that private land in an estate might not only be situate far away from the dwelling house of the zamindari in the same village but might also well lie scattered in different villages throughout the estate, especially when the case before the learned Judges was itself concerned with the latter type of land. I am surprised to find the remark in 'Narayudu v. Venkataramanamurti, (1949)' 2 Mad L J 623, made to this effect: "So far as I know in no case prior to 'Zamindari of Chellapalli v. Somayya', 39 Mad 341, was it suggested that the zamindar's private land must be confined to land surrounding his palace or residence as in the case of demesne land of the English Lord of the manor." But was it so suggested in that case and could it be? I quite agree that the mansion house test which has reference only to the word "domain" is necessarily narrow, for there is the other word "home-farm" in the definition of private land, and land may well be private land if, although not domain land, it is home-farm land. 97. Before I proceed to consider the meaning of the expression "home-farm" land I have a few more remarks to make on the decision in 'Narayudu v. Venkataramana-murthi', (19,49) 2 Mad L J 623, which though not strictly pertinent to the particular point which I am just discussing I may as well make even now and here. In the first place I have no quarrel with the actual decision in the case, and I am not by any means sure that I would not have myself arrived at the same conclusion. There was ample evidence furnished in that case by the descriptions contained in several documents including leases both after and before 1898 that the land in question was 'rajuseri (zamindar's seri or cultivable land), 'sontaseri' (home-farm) or private 'seri' (private cultivable land of the zamindar). There was also oral evidence of actual personal cultivation at some time or other. My learned brother held that the ruling in 'Bindheswari Prasad v. Kesho Prasad Singh', 5 Pat 634, justified the reception in evidence on a question of private land or ryoti land of admissions by tenants in leases subsequent to 1898 whatever their probative value, and virtually, though not in terms, resolved the conflict of judicial opinion on that point in this Court. With this view I perfectly agree. The second remark that I have to make is that in referring to direct or personal cultivation my learned brother observes that it "may be and is often a useful test for determining the character of land in an estate, that is to say, whether it is private land or ryoti land but that teasing by itself is not fatal to the claim, that the land in question is private land." The antithesis in the sentence is between direct cultivation and leasing. The learned counsel for the appellants-petitioners before us has not argued that leasing is 'per se' fatal to any claim of private land. Only he has insisted that the leasing must be of a kind and character not inconsistent with an intention to resume direct cultivation. The third remark that I should make is that white rightly rejecting the mansion house test as too narrow my learned brother accepted and applied the test of direct cultivation subject to the qualification that leasing by itself is not fatal to the claim of private land. Referring to the test of direct cultivation what my learned brother further says is that it is not an indispensable condition that the private lands should be proved to have been cultivated by the landholder himself or his hired labour, be it noted, 'within recent times'. In other words, the direct cultivation test is accepted as the test of private land qualified however in its application by the consideration adverted to in the Judgment. The fourth remark that falls to be made is that the privy council ruling in 'Zamindar of Chellapalli v. Somayya', 42 mad 400 (PC), is referred to by my learned brother as approving the observations made by Sir John Wallis in Zamindar of Chellapalli v. Somayya', 39 mad 341, wun reference to the test of direct cultivation as the test lor the determination of the character of land as private land. The nun and last remark called for is that the case before my learned brother was not a case oi conversion of admitted ryoti land or land of unknown character into private land and yet tile lest of direct cultivation was applied without regard to any differentiation oi the kind auempted by the learned counsel lor the respondent and accepted by my learned brother in the present case. It may be tnat my learned brother has had the chance of a better and fuller consideration of the matter in the light of the arguments before us and has been able to go further than he did in 'Narayudu v. Venkataramanamurthi, (1949) 2 Mad L J 623. All that I am concerned to point out at this juncture is that while that portion of his judgment in that case whcih imputes the mansion nouse test to the learned Judges who decided 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, is in my respectful opinion erroneous, the rest of the judgment is by no means adverse to the contention for the appellants and petitioners before us. Why I am concerned to point out this is that there may be and ought to be no mistaking of that judgment as militating against the whole catena of decisions in this Court relied on in support of that contention. The unreported decision of Krishnaswami Aiyangar and Somayya JJ, in 'Thiagarajasami Devasthanam v. Muthuswami', C. M. A. No. 311 of 1943, is of course no doubt there, in conflict with that catena of decisions, and with that, I shall deal later. 98. Now to turn to the word "home-farm" land I find that the words "home" and "farm" are separately defined and annotated in dictionaries, and what has to be done in order to get at the meaning of the compound is to combine the meaning of the two words after ascertaining them separately in the manner most suited to the context of the definition so as to make of them a compound calculated to hormonise with the common spirit of the several illustrative terms employed by the legislature in the explanatory phrase attached to "home-farm land of the land-holder" occurring in Section 3 (10) (a), namely, "by whatever designation known as such as 'kambattam', 'khas', 'sir', or. 'pannai' ". These terms are no doubt only illustrative and not exhaustive, as the words "such as" preceding them show. Other terms of a like significance it is not difficult to conceive of. We have them in "Sonta Seri" and "Raju Seri" in 'Narayudu v. Venkataramamurthi', (1949) 2 Mad L J 623 and in 'Nagari Iduva' in 'Venkatagiri Zamindar v. Raghavan', 9 Mad 142 and in 'Samasthanam Khanigi' which is found mentiond in the leases discussed in 'Chinnarigadu v. Rangayya', AIR (22) 1935 Mad 789, and to which along with 'Nagari Idhuva' Mr. Vendantachari refers in his commentary on the Act. 'Sonta Kamatam' is another expression also in vogue to the same effect a variant of kambattam'. In my opinion, as J have already Indicated, "domain" and "home-farm" are two different expressions, and the explanatory phrase qualifies only the latter expression and not the former. Pursuing this process for determining the meaning of the compound "home-farm" I find first that the separate meaning of the word "home" suitable to the context is the kind of meaning obtainable from phrases like "at home" and "home-rule", the former of which is explained in the Concise Oxford Dictionary of current English (3rd Edn., Reprinted in 1944) as meaning "in one's 'own' house", and the latter of which is explained in the same Dictionary as meaning "The Government of a country by its 'own' citizens". I find next that the separate meaning of the word "farm" suitable to the context to be found in the same Dictionary is "tract of land used under one .management for cultivation". Putting together the meanings of the two words "home" and "farm" as so chosen I hold that the home farm land of the land-holder means "land of the land-holder in his own cultivation". In fact "home-farm" is also explained in the same Dictionary in the context and under the heading of "farm" itself. "Farm" is first defined in its noun form as meaning "tract of land used under one management for cultivation" (originally of leased land) and then is given the meaning of the word "home-farm" thus--"reserved & 'worked' by 'owner' of an estate containing other farms." I have underlined (here in quotation) the words 'reserved', 'worked & 'owner' from which It seems to me that fn the words 'home-farm land of the land-holder' occurring in Section 3(10) (a) of the Madras Estates Land Act is implicit the idea of land reserved & kept in the land-holder's own or direct cultivation--the idea, to borrow words occurring elsewhere in the same clause of the same Sub-section of the same section, of cultivation by the land-holder himself by his own servants or by hired labour with his own or hired stock. 99. This conception of "home-farm land" according to the Statute thus deducible is further emphasised by the legislature by its use of the pharse by whatever designation known such as "kambattam, khas, sir or pannai." These four illustrative words have about them the common idea, the idea, again, of direct cultivation. They are not, as I have already pointed out, conclusive legal labels which themselves constitute the definition of private land. They are significant, popular, Vernacular terms current in the country at the time that the Madras Estates Land Act was passed, which have been specifically mentioned by the Legislature in the explanatory phrase attached to "home-farm land of the land-holder" in the definition of "private land" In order to serve as aids to the ascertainment of the meaning of "home-farm", not itself separately defined by the Statute. From the mode of treatment accorded by my learned brother, Satyanarayana Rao J. concurred in by my learned brother, Viswanatha Sastri J. wtlhout any discussion of his own, to the question of the relevancy of these words used by the Legislature to the construction of the word "home-farm" and to the question of the exact meanings to be assigned to these words so used I must express my unqualified but deferential dissent. Their utility in the context of such construction has been unduly under-estimated by my learned brother. Satyanarayana Rao J. His Lordship's whole discussion reveals many a point of approach as well as of detail which in spite of my very respectful consideration have unfortunately not commended themselves to me. In the first place, it is said that the Legislature has not made of the four terms and their meanings as given in Wilson's Glossary the essence of the definition of private land. The question is not, in my opinion, precisely that but materially different. The question rather is whether the legislature has not made of the terms the essence of the explanatory phrase attached by it to "homefarm land" in the definition of "private land" whatever may be the meanings that may be attached to those terms in accordance with Wilson's Glossary or by any other means, which is another matter. Has not the Legislature made of the terms which are manifestly illustrative only and not exhaustive, interpretative aids to the ascertainment of home-farm? On what basis did it conglomerate these terms except the basis of some common concept running through them all, whatever the concept may be, which is another matter? For what purpose did it conglomerate except that of illustrating as evident from the words "such as" the designations by which home-farm land may be known in different areas? Is not what is meant by "home-farm" which Is not separately defined by the Act to be gathered from the illustrative words of designation employed in the Act? 100. Secondly, my learned brother observes: "It (i.e., the definition of private land) does not say that the land would be private land if it is 'kambattam, khas, sir', or 'pannai', or if it is known to be such." The words in brackets are, I may say, mine that is by the way. True, the home-farm part of the definition of private land does not say that land would be "home-farm" land and fall within that category of private land only if it was or went by the names of 'kambattam, khas, sir or pannai'; but that part of the definition does say that the land must be "home-farm" land, i.e., must Indeed and in fact be "homefarm land" by whatever designation known such as 'kambattam, khas, sir or pannai' in order to fall within that category of private land. 101. Thirdly it is observed in the judgment of my learned brother that it is not possible to Infer from these four expressions and particularly from the meanings as given by Wilson In 1855 that they would have the same meaning at the present day or, at any rate, in 1908, when the Madras Estates Land Act was passed. It is hardly necessary for me to point out that the high authority of Wilson's Glossary which has been oft relied upon by the High Courts and the Privy Council is too well known to be disregarded or discountenanced except where statutes since passed or judicial decisions since rendered contain anything in express terms or by necessary implication repugnant to the meanings as given in the Glossary so as to render them obsolete altogether or limit their operation. I cannot understand too what significance is implied in the contrast between the present day and the date of the passing of the Madras Estates Land Act in the observations of my learned brother. Surely it has not been so far suggested anywhere that, nor has it been stated by my learned brother why, if the meanings are good today, they were not as good in 1908. The real question is whether in the Act there is any clear evidence of any legislative depart-ture in 1908 from the meanings of Wilson which would only be possible if there had been a departure from them in popular parlance between 1855 and 1908. I have not been able to find evidence of any such departure either of the latter kind or of the former. Our attention has been drawn to no authority suggesting such a departure, derived from Sta tutes in 'pari materia', if they may be so call ed compendiously, in force in other Provinces so far as they may be relevant or from deci sions pronounced under those Statutes or ren dered in this Province prior to 1908, The Ben gal Tenancy Act VIII of 1885 contains no definition of the words current in .Bengal and Bihar to denote private land which are no doubt referred to in Section 120(1) of that Act. The word "sir" used in our Act is not therefore de nned by that Act. The word is also the word current in the Umited North West Provinces of Agra and Oudh and Central Provinces and Berar. I have looked into the definitions of that word in Acts in force in those Provinces given in Section 4, Sub-section (12) of the North West Provinces Land Revenue Act III of 1901, and in Section 4(6) of the Central Provinces Land Revenue Act, XVII of 1881, after calling for the United Provinces Code and the Central Provinces Code not available in the Library of the High Court, from the Library of the Legislatures in the Fort. I have found nothing in those definitions which are partly based on special conditions relating to the previous Revenue Settlements in those Provinces which militates against the ordinary meaning of the word as given in Wilson's Glossary. On the other hand, the idea of cultivation by the proprietor himself with his own stock or by his servants or by hired labour as of the essence of "sir" seems to be recognised by those definitions also, although adapted to such special conditions in the way that the Legislatures of the Provinces deemed fit so to adopt. I do not consider jt necessary to reproduce those definitions here or to pursue this aspect of the matter any further. The meaning of the word "sir" as given in Wilson's Glossary is, it may however be noted, in no way militated against by what is accepted by 'Budley v. Bukhtoo', 3 N W P H C R 203 which is, in fact, based on the same idea as is expressed by the meaning given in the Glossary. In our Province before the Madras Estates Land Act of 1908, although there was no statute denning any one of the four words 'kambattam khas, sir and pannai', there was just one decision reported in 'Nagayasami v. Virasami Kone', 7 Mad H C R 53, defining 'pannai' land. The question there was whether a suit before the Revenue Courts under Section 12 of the Madras Regulation VIII of 1865 by a tenant for reinstatement after the zamindar's ejectment in respect of 'panai' lands was maintainable. The argument for the defendant, the Zamindar, was that it was not, because the 'pannai' lands were of their nature not part of the zamindari, and the defendant was not a zamindar in respect of such lands within the definition of the term "landholders" used in that Act. The Civil Judge negatived the argument holding that 'quoad' such lands the zamindar could not, as contended, be treated as himself a tenant with the cultivator as his Subtenant. For so holding the Civil Judge referred to the character of 'pannai' lands as being lands to which the proprietor had an exclusive right, a right to the melwaram as well as the kudiwaram, adding further what is perhaps more material that those lands are sometimes cultivated Under-the Zamindar's own ploughs and sometimes they are let out for cultivation by others. The High Court after referring to what the Civil Judge had said upheld his view that the suit before the Collector was maintainable notwithstanding that the lands were 'pannai'. I am not able to so read the observations of the Civil Judge accepted by the High Court as to dispense with requirements of proof, if a question of the character of the lands as "pannai" arose, of direct cultivation or in case of letting, of the character of the letting being in its terms in no way inconsistent with an intention on the land-holder's part to resume direct cultivation. 102. Fourthly, it is remarked by my learned brother that the meanings given in Wilson's Glossary do not have the common feature of personal cultivation. One has only to look at those meanings as conveniently reproduced at pages 75 and 76 of Mr. v. Vedanthachari's Commentary of the Madras Estates Land Act to appreciate aright the correctness or otherwise of the remark. I need only observe to avoid a slight confusion which may otherwise result at first sight of the passage in the commentary that the annotation of the word "pannai" as given in the Commentary corresponds to what is given in the Glossary under the word "pannai" as well as the words "pannaiah", "punna" "punnah" the meaning of which latter words follows closely enough on the meaning of "pannah" separated" only by the meanings of two other connected words "pannaikaran" "Pannaissumai" which may also be usefully consulted in this connection, although the meaning given under the words "panniah", "panna", "pannah" taken together is the more relevant. 103. I propose to reproduce here so far as is relevant the Glossary meanings of the four words used in the Statute, not of the two other words connected with one of those words "pannai", namely, "Pannaikaran" and "pannais-sumai". Kamatamu or 'kambattam': The land which a Zamindar, Jagirdar or Inamdar keeps in his own hands cultivating it by labourers in distinction to that which he lets out in farm. 'Khas': As a revenue term it is applied also to lands held by Zamindars and 'cultivated by themselves for their own benefit'. 'Sir': A name applied to the lands in a village which are 'cultivated' by the hereditary proprietors 'or village 'zamindars themselves' as their own especial share either by their 'own' labourers or at their 'own' cost or by tenants at will not being let in lease or farm. 'Pannai': A field, a rice field, cultivated ground, tillage, husbandry. 'Panniah, Punna, Punnah': An estate or farm the property of a Rajah and 'cultivated by his slaves'. 104. It will be seen from the words underlined by me (here in quotations) of each of the Glossary meanings extracted above, that In all of them the features of direct cultivation of the land-holder' is manifestly present. I may add in this connection that in the Tamil Lexicon of 1931 published under the authority oj the University of Madras which I have' consulted, there are several meanings assigned to the word "panna" at page 2453, column 2 of which the seventh and eighth meanings and more particularly the seventh which are material to the present discussion are "direct cultivation" and "establishment of farm labourers" respectively. My learned brother further observes that the words "khas" and "sir" are not words at all used in this Presidency, i regret I cannot appreciate the significance of the observation. The words are there in the Statute and unless they are to be regarded as surplusage-- which is, obviously impossible--their meaning must be ascertained and applied. Assuming the observation to be relevant, I very much doubt with respect, whether that is right. So far as the word "khas" is concerned, reference may be made in this connection to 'Chinnarigadu v. Rangayya', AIR (22) 1935 Mad 789, a case from the District of Chittoor where in regard to a portion of a village called "khasbagayat" it was held that the expression indicated that the lands in that portion were held by zamindars and cultivated by themselves for their own benefit. Moreover, I may say from my personal knowledge that there is in the Zamindari of Pithapuram adjoining the Fort an extent of 20 Or 30 acres of land known as 'kasuthota', i.e., garden in the direct cultivation of the Zamindar which is the only private land comprised in that estate. It may not also be correct, in my opinion, to suppose that the word "sir" has not been known at any time to be in use in this Presidency. It seemed to me strange that a word not in use in this Presidency, as I too first thought of this word though not of the word "khas", was used in a Legislative enactment of the Province as a description designation of home-farm land which is part of the definition of private land. After my mind had been somewhat exercised over this thought it occurred to me that it might possibly be an Uriya word in vouge in the Gan-jam District which when the Madras Estates Land Act was passed in 1908 was a part of this Presidency, though it has since gone into the separately formed provinces of Orissa consisting of the original Orissa part of the province of Bihar and Orissa and the Ganjam District part of the Madras Presidency. Consulting then at the University Library Poorna-chandra Ordia Bhasha Kosha complied by G. C. Prahraj, Advocate, High Court, Patna and published by the Utkal Sahitya Press, Cuttack in 1928, I found therein the word "sir" in fact explained at the top of column 2 of page 8519 as meaning a permanent home-farm of a proprietor-or maphidar or lakharajadar. That is the meaning of the Uriya word "sir" while the meaning to be found in Wilson's Glossary is that of the Hindi word "sir". The two meanings substantially agree. Only, comparatively the one is compendious while the other is elaborate, and possibly the compiler of the Dictionary took the word "home-farm" from the definition of private land in the Madras Estates Land Act. Then as regards 'kambattam' my learned brother himself concedes that it is in Telugu used in a general sense to denote a mans personal cultivation. Born to the language like my learned brother I too cannot understand; the word in any other sense. That in my view, is also the meaning as given in Wilson's Glossary and tne meaning of the word as used in the Act. My learned brother has given, no reason why the undoubted and undisputed meaning of this word should be excluded from consideration in understanding the word "homefarm" in connection with the explanation ot which it occurs in the Act. Nor am I prepared to treat the word "pannai" used in the Act as being of no assistance, because it means nothing more than a field, a rice field, cultivated ground, tillage and husbandry according to the meaning given by Wilson. As I have shown above, it does mean, according to the Tamil Lexicon something, more definite, something clearly in point namely direct cultivation, and it has been applied to the property of a Rajah cultivated by slaves as also pointed out by Wilson himself. In these circumstances I cannot but conclude-that the meaning of the words occurring in Section 3(10)fa) of the Madras Estates Land Act as given in Wilson's Glossary may well be accepted as a safe guide for their interpretation, for the purposes of the present case. 105. Fifthly, my learned brother observes after referring to the words used in Section 120 of" the Bengal Tenancy Act, namely, cultivated as 'kamar, zeroyiti', etc., which no doubt do not occur in our Act that the expression "by whatever designation known" in our Act must have reference to a recognition of certain lands in the village as 'kambattam, khas, sir or pannai'. I respectfully doubt whether this view-point is correct for a two-fold reason : first that thereis the word "home-farm" in the definition in our Act which sufficiently fulfils the purpose of "cultivated" in the Bengal Tenancy Act, second that while 'kambattam, khas, sir and pannai' are words of popular usage meant in recognition of the character of land they have been chosen by the Legislature as illustrative terms entering into the explanatory phrase attached to "home-farm land of the Jand-holder" "by whatever designation known such as 'kambattam, khas, sir, or pannai" because of their appropriateness, attributable to their meanings, as given in the foregoing, to the context of the legislative explanation of home-farm land as part and parcel of the statutory definition of private land. 106. It will be seen that my exposition of the definition of private land in the faregoing certainly favours the submission of the learned counsel for the appellants and petitioners. The lines of argument by means of which the. learned Counsel for the respondents sought to invalidate are, firstly that according to decisions of this Court prior to the Act which ascertained and applied the comomn law right the expression "private land" is much larger in the scope of its context than is warranted by this narrow view of the statute, which ought not ordinarily to be presumed to interfere with the common law unless and until the contrary is shown beyond doubt; secondly that Section 185 of the Act when carefully scrutinised yields considerations warranting the larger view, that is to say, of the common law in force prior to the Act. 107. In connection with the first line of argument reference was made by the learned counsel tor the respondents to 'Nagayasami v. Virasami, 7 Mad H C R 53, which I have dealt already. There is also the case in 'Venkatagiri Zamindar v. Raghava', 9 Mad 142 referred to by my learned brotner, Viswanatha Sastri J, in his judgment in this connection. Tnat case arose witn reference to certain lands in tiie zamindar of Venkatagiri which were the subject matter of a mucmika executed by tne lamer of tne defendants. The piaintitf zammdar sued the defendants in ejectment relying on a condition in the muchilika that the lands were to be returned whenever wanted and " alleging that due notice to quit had been served on the defendants. The muchilika described the lands as 'Nagari Iduva' (i.e. lands belonging to the Samasthanam). The words in brackets are by tlie way mine. The defendants denied that the lands were of that character. They further alleged that the lands were 'Ijara Iduva' not liable to be recovered by the plaintiff but liable only to be delivered by them to the 'Ijaradar' if the lands were leased out by the plaintiff on 'Ijara'. The learned District Judge in the appellate Court held that on the construction of the ' muchilika the defendants could not be ejected unless the lands were let on 'Ijara' by the plaintiff to a stranger. On appeal to the High Court Turner C.J. and Muthuswami Aiyar J". in the judgment of the Court delivered by the former said this: "The Judge has, in our judgment misundeiv stood the condition in the muchilika of fasli 1285. If the lands held by the defendants are what are known as home-farm lands of the Zamindari they are lands which according to a very general custom of the country the zamindar reserves for his own cultivation when he thinKs fit to resume them and on which a right of occupancy does not accrue. The Zamindar when he lets such lands has ordinarily a right to resume them at the end of any agricultural year on giving due notice." On this passage there are two remarks which I desire to make. For one thing it refers to "home-farm land of the land-holder" which is the expression made use of by the Legislature in the definition of private lands in the Act of 1908. For another it recalls to one's mind the passage in the decision in 'Dudley v. Bukhtoo', 3 N W P H C R 203 to which Turner C. J. had been while a puisne Judge of the North West Province a party sitting with Pearson J. of that Court. The passage in the decision runs as follows: " 'Seer' land as we understand it, is land which at some time or other had been cultivated by the Zamindar himself, and which although he may from time to time for a season demise to Shikmese he designs to retain as resumable for cultivation by himself or his family whenever his requlrementsor convenience may induce him to resume it." I cannot read the passage in 'Venkatagiri Zamindar v. raghava' 9 Mad 142 In the way in which my learned brother seems to read it that is to say, as not making of direct cultivation an essential part of the character of home-farm land. It may be that the test of direct cultivation does not apply to the "domain" Jand category of private land which may never be cultivated, although cultivable, because all that "domain" means is "land about the mansion house of the Lord and In his immediate occupancy" and not necessarily in his direct cultivation, although when and if let. out even the leasing of such land must be on terms not inconsistent with an intention on the part of the Zamindar to take it back for his own direct use. The test of direct cultivation is clearly implicit in the very idea of home-farm lands to which the learned Chief Justice refers in terms of 'resumption' for the land-holder's 'own' cultivation. No question of conversion of ryoti land into private land arose in 'Venkatagiri Zamindar v. RAGHAVA', 9 Mad 142 and what the Court did was to enunciate the proposition that home-farm land is land in which a right of occupancy does not necessarily accrue, in contradistinction apparently to ryoti land in which such a right does arise, by letting. 108. The two broad categories of ryoti and private lands in estates with this feature of distinction have existed from time immemorial. As pointed out by the Rt. Hon. Mr. Ameer All in the very passage from the case in 'Sivaprakasa v. Veehama Reddi', 45 Mad 586 at pages 601 (bottom) and 602 quoted by my brother, Viswanatha Sastri J: "One important feature of the Act is worthy of note. It throws into relief the component parts which from immemorial times go to constitute a village; first the lands In the 'direct cultivation' of the proprietor (called by various names); second lands opcupied by tenants or ryots and third old waste lands ' over which by custom the land-holder possessed certain specific rights now crystallised in the statute". It will be seen from the words underlined (here in quotation) by me above that In referring to the first of the three categories of lands going to constitute a village, the Rt. Hon'ble Mr. Ameer All is referring to the home-farm land with the explanatory phrase attached to it which IS part of the definition of private land in Section 3(10) of the Act. It will also be seen that in an earlier page 599, the Rt. Hon'ble Mr. Ameer Ali specifically refers to the definition of "private land" in Sectioin 3 as meaning "the domain or homefarm land" (expressions borrowed from English law) of a land-holder by whatever designation known such as 'kambattam' 'khas' 'sir' or 'pannai'. These words so referred to by him In connection with the definition of "private land" are apparently the words had in mind by him in describing the first of the categories of lands constituting a village at page 602 of the Report. It is further noticeable that while the Privy Council refer to "domain" or "home-farm" land as expressions borrowed from English Law, they make no grievance of the use of such expressions in the Statute, as in any way inappropriate to an Indian Statute dealing with conceptions sometimes different, it may be, from those which are associated with the system of feudal tenures in England, Far from supporting the view urged for the respondents in regard to what "home-farm land" means, the passage in the judgment of the Privy Council Just quoted rather supports the contention advanced by the learned Counsel for the appellants and petitioners that fn order that lands may be held to be home-farm lands and therefore private lands it is essential to prove their direct cultivation on the part of the proprietor, at sometime or other. The statement of law in the passage in question, being Of the highest tribunal, is binding on us and cannot be whittled down by any process ot reasoning whatsoever on the part of any Indian Court. 109. The references which my learned brethren have made--to the decisions in 'Venkatanarasimham v. Kotayya,' 20 Mad 299 and Cheekati Zamindari Case 23 Mad 318 as indicating the gradual growth and evolution of the rights of ryots in estates are absolutely unexceptionable; but they hardly bear speaking with all respect, upon the point what exactly "private lands" are according to the definition of the Statute. On the other hand, assuming such references to be relevant, one should rather imagine that from the unrighteous attempts which the land-holders had been making prior to the Act to expand their private land by seeking to convert ryoti land into private the Legislature was solicitous to define and limit private land in a straight and simple, if somewhat narrow manner which would not only serve to assist the Courts in their determination of the question, which had become confused and complicated by the con duct of land-holders, whether any particulai land claimed to be private or ryoti as such, but also serve to , preclude the land-holders from expanding their private land by persisting even after the Act in the course of such conversion or ryoti land into private. The way in which apparently the Legislature chose to achieve the object that it had in view was insisting irrespectively of historical origins which need no longer be probed Into, upon proof of the character of the land claimed to be private as either that of domain land or as that of home-farm-lands as explained by the Statute itself by means of the expression "by whatever designation known as 'kambattam' 'khas' 'sir' and 'pannai' inserted in the section. Judging from :this standpoint I wonder how the zamindar's private lands even if they consisted of the three categories referred to by Baden Powell in his Land System of British India, Vol.' 1, page 515 as a matter of historical information can be understood in any other sense than what is expressed or implied by or in the definition section of the Madras Estates Land Act 1 of 19,08; Had the intention of the Legislature been to impress with the stamp of private land all land in which the land-holder had at the commencement of the Act a right to both the melwaram and the kudiwaram the definition could well have run in very simple terms expressive of-such an intention. The Legislature could have well adopted in that case the language of the Civil Judge in the case in 'Nagayasami Kamiah Naick v. Virasami Kone', 7 M H C R 53, which is supposed by my learned brethren to be an accurate judicial definition of private land prior to the Act, for the purpose of the definition of private land in the Statute itself. Nothing could have been easier than that. The private land of a land-holder in Ordinary English may well mean in contradistinction to ryoti land. Land In the ownership of the landholder which he has kept for himself without creating any rights in the ryots. But if the legislature lias prescribed a method of ascertainment of such land by limiting it to a specified categories -- domain land and home-farm land -- no Court can in its legitimate function add to the statute so as to restore the expression to its connotation in ordinary par lance. This disposes of the first line of argu ment of the learned counsel for the respon dents in answer to the submission of the learn ed advocate for the appellants and the peti tioners before us so far as it is favoured by my exposition of the definition of private land in the foregoing. 110. Turning now to the second line of argument advanced by the learned counsel' for the respondents it comes to this, shortly stated, firstly that Sectioin 185 of the Act contains nothing to indicate direct cultivation as one of the matters of evidence for the Court to have regard to for determining whether any land' is the landholder's private land; and secondly that the transposition of the proviso of old Sectioin 185 to the second part of Clause (a) of Sub-section 10 of Sectioin 3 is significant as showing that direct cultivation is not the test of home-farm land in the earlier part of the definition of private land in Sectioin 3 (10) (a). 111. Sectioin 185, as I have already observed, is an evidential section while Sectioin 3 (10) (a) is the definition section. The former cannot except by force of its specific terms be read so as to override the latter. The two sections must, as I have already observed, be read so as to harmonise with each other. The object of Sectioin 185 is only to provide for certain matters as being evidence relevant to determining whether any land is the land-holder's private land. It seems to me illogical or at any rate unnecessary for the Legislature to repeat the essential matter already expressed or implied in the definition Section 1 itself. The position might Well be different where, as in the Bengal Tenancy Act, the Legislature did not enact a definition of private land and had therefore to use in Sectioin 120 the words "cultivated as 'khamar' etc." For land to be held to be private land, evidence of direct cultivation at sometime or other and for sometime or other being necessary according to the definition section Itself of our Act by reason of what home-farm land by whatever designation known such as 'kambattam', 'khas'. 'sir' or 'pannai' means, as I have already explained, the Act has in the evidential section only stated that regard shall be had to certain factors bearing on the essential matter of the definition. Local custom comes in, because proof of that may clear up the difficulty in demarcating how far the land about the mansion or dwelling house of the zamindar and in his immediate occupancy extends or may, where trie words used in the Statute, 'kambattam', 'khas', 'sir' or pannai', are not in vogue but other words are in a particular locality, help the Court to decide upon the home farm character of the land by ascertaining the meanings of those other words. Local custom may sometimes even stamp land with the character of private land which does not full within the definition section at all. To that extent the force of the'restrictive definition given in the statute as compared with the larger definition to be found in Baden Powell or in decisions prior to the Act, if any, may well stand cut down so as to bring in tinder the head of private land waste lands and 'Nankar' savaram lands although regularly leased out without regard to., terms and conditions making resumption Of direct cultivation possible, 'pro tanto' rehabilitating that larger definition which, if it existed was taken leave of by the framers of the Act in 1908 not without reason as already pointed out by me. Then comes, in Sectioin 185, Jetting out of Zand specifically as private land before the 1st day, of July 1898, because evidence of that kind relating to a period more than ten years prior to the passing of the Act and relating to a period prior to the publication of the Bill which became afterwards the Madras Estates Land Act of 1908 may well be presumed to be dependable evidence of a conduct on the landholder's part not dictated by an indecent anxiety to create evidence of the character of land as private land in view of the approaching legislation. Any other evidence that may be produced bearing on the character of the land as private land is next referred to in Sectioin 185 and that Includes as ruled by the Privy Council In 'Bindeshwari Prasad v. Kesho prasad', 5 Pat 634, and as not disputed by the learned counsel for the appellants and petitioners, admissions of tenants that the land is private land even in leases subsequent to the 1st of July 1898 whatever their probative value. It is asked by my learned brother, Viswa-natha Sastri J. in his judgment how the definition of private land in the Act which came In only in 1908 could possibly be present to the minds of land-holders and tenants prior to the Act, and how possibly they could describe any land as private land specifically in leases prior to the Act, The answer js firstly that there is no substantial difference between the conception of private land prior to the statute, and the conception under the statute which only throws into relief,, to use the language of the Privy Council in 'Sivaprakasa v. Veerama Reddi', 45 Mad 586 the three component parts which from times immemorial have gone to constitute a village and secondly that if there la any difference while the statutory definition cuts out certain classes of land recognised as private land prior to the Act the definition the Act does not create any category of land for the first time as private land till then unknown. So that, specified letting of land as private land in the usual vernacular terms prior to the passing of the Act is not an impossible species of evidence on the construction of the definition of private land contended for by the appellants and petitioners. 112. Then on the question whether the transposition of the proviso of old Sectioin 185 of the Act to the definition section makes any difference to the interpretation of Sectioin 3 (10) (a). I am distinctly of opinion that it does not. The idea of the proviso was that continuous cultivation of the kind and of the length of time contemplated by it should raise an irrebuttable presumption that land is private land. It is only natural that when the Act of 1008 was amended in 1934 and 1936 the logically appropriate place for the proviso was considered by the Legislature to be the definition section itself in view of the Indistlnguishabllity In practical effect between a provision by way of an irrebuttable presumption that in a certain case the land is private land and a provision by way of Inclusion in the definition section Itself that the land shall in such a case be private, land. What is more, the juxtaposition of the old proviso to Sectioin 189 in relation to the old Sectioin 3 (1) as effected by the transposition is, in my opinion, accounted for by the affinity of ideas between the subject-matter Involved in the definition of private land as home-farm land, and the subject-matter of the old proviso to Sectioin 185 raising the irrebuttable presumption that land Is private land in a certain contingency contemplated by the proviso. It seems to me 'non sequitur' to say that the reference to direct cultivation in the proviso to the evidential section which has become part of the definition section by the amendment dispenses with proof of- direct cultivation which Is a requisite. Implicit in the borne-farm part of the definition of private land as even the dicta of the Privy Council in 'Sivapra Kasa v. Veerama Reddi', 45 Mad 586, to which I have already referred go to show. The only effect of the transposition of the old proviso to Sectioin 135 to the definition section is to emphasise the view which was not unanimous in this Court till 'Bandharijogi v. Seetha' Ramamurthi', ILR (1948) Mad 223, that there is only one mode of conversion of ryoti land into private recognised by the Act, namely, the mode enacted by the old proviso which has now become part of the definition section itself by legislative amendment. 113. I shall proceed next to a consideration of the decision on the construction of- the definition of "private land" in this Court subsequent to the passing of the Act. These decisions may be divided into two categories, decisions pronounced prior to 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, and decisions beginning with that case and coming down to date. 114. Of the first it is unnecessary for me to refer to any other case than the one in 'Lakshmayya v. Apparao Bahadur', 38 Mad 168, in which the two learned Judges who decided it differed on the question as to the admissibillty in evidence of leases subsequent to 1898 in aid of the determination of the character of land as private land, a question, on which there is now the binding, authority of the Privy Council In the cast in 'Bindeshwari Prasad v. Kesho Prasad', 5 Pat 634. It is true that private land is contrasted In that case by Sundara Aiyar J. with that public land, as he calls It, held by ryots with occupancy right and that the former kind ot land is broadly assumed to be land of which the zamindar is the owner of both the melwaram and the kudiwaram. There Is no discussion in that case of the question what the home-farm part ot the definition of private land in the Act means, which is the question raised, before us. Moreover, there was in that case evidence amongst other things of specific letting of the land as private land before the 1st day of July 1898 specifically mentioned in Section 185of the Act. The learned Judges accepted the finding of fact of the lower appellate Court as vitiated by no legal error -and well supported by the evidence which, as I have already observed need not after all be direct evidence of direct cultivation, at some time or other, evidence in the nature of 'Pratyaksha Pramana' but may well be inferential or circumstantial evidence, evidence in the nature of 'Anumana', to use the Sanskrit words of Hindu- Sastras employed by Sadasiva Aiyar J. In that case, The evidence of conduct on the part of the zamlndar in according to the lands in Question there a different kind of treatment to that accorded by 115. To turn next to the second category of decisions it is not denied that but for the un-reported decision of Krishnaswami Alyangar and Somayya JJ. in 'Sri Thiagarajasami Devasthanam v. Muthuswami Odayar', C. M. A. No. 311 of 1943, and possibly the decision of Madhavan Nair J. in 'Chinnarigadu v. Rangayya', AIR (22) 1935 Mad 789, with both of which I shall hereafter deal, the trend of judicial opinion in this Court has been quite unanimous and in a sense favourable to the contention of the learned counsel for the appellants and petitioners before us. Some of these decisions have been attempted to be distinguished in the course of the argument as decisions relating to the conversion of admitted ryoti land into private land. Others which could not be so distinguished were attacked as wrong. With reference to these other decisions, reasons have been given by my learned brethren in their judgments for their view that they are erroneous, reasons, which I have already dealt with in my own judgment herein before. I need therefore only show here that the attempt made by counsel to distinguish those other decisions in which the test of direct cultivation has been laid down as confined in their operation to cases of conversion of ryoti land into private land is not warranted either by the reason of the thing or by the course of decisions which have applied that test to cases like the present as well, In 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, the way in which Wallis C. J. begins his judgment is this: "This case raises a question of considerable importance as to what constitutes private land under the Madras Estates Land Act, 1908." and then he proceeds to consider the meaning of the word "domain" and in effect to apply the home-farm part of the definition of private land to the evidence on record about the lands in question before the Court. He winds up the whole discussion with the following remark: "In some parts of India lands of this kind are known as 'sir' lands, and this is one of the terms mentioned in the definition. In 'Budley v. Bukhtoo', 3 N W P H C R 203, it was held that 'sir' land is land which a Zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even when from time to time he demises it for a season. I think that this test may well be applied here and that as the plaintiff has failed to satisfy it the appeal fails and must be dismissed with costs." From this it will be seen that the test of direct cultivation accepted by the learned Chief Justice and concurred in by his colleague, Sheshagiri Aiyar J. constitutes the very 'ratio decidendi' and is not in the nature of a mere 'obiter dictum'. The distinction between 'ratio decidendi' arid 'obiter dictum' given in Halsbury's Laws of England, Vol. 19, at pages 251 and 252 is as follows: "It may be laid down as a general rule that that part alone of a decision of a Court of law is 'binding upon Courts of co-ordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the 'ratio decidendi'. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose on hand (usually termed 'dicta') have no binding authority on another Court, though they may have some merely persuasive efficacy." Bearing this distinction in mind I have no doubt but that what the learned Judges in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, have said with reference to the test of direct cultivation is really the basis for their decision jn that case and not something which went beyond the occasion. The statement of the law laid down in the case has been accepted by the Privy Council in 'Zamindar of Chellapalli v. Somayya', 42 Mad 400 (PC), in appeal against the decision in the same case. After; setting forth the passage in Wallis C. J.'s judgment which I have myself extracted above, Sir John Edge, delivering the judgment of the Judicial Committee observed that "that test is obviously suggested by Section 185 of the Act and was rightly applied by the Chief Justice". It is said for the respondents that because of the reference to Section 185 of the Act by the Privy Council in accepting the test propounded by the Chief Justice it follows that the decision must be confined only to cases of conversion of ryoti land into private covered by the proviso to Section 185. I think that is a wrong view to take of the meaning of the decision of the Privy Council. Although the test of direct cultivation is not specifically referred to by the Privy Council as a test adopted by the Chief Justice from the language of the definition section, and although the facts of the case before the High Court and before the Privy Council pertained to evidence bearing upon the conversion of ryoti land into private, it is clear that the passage in the learned Chief Justice's judgment which enunciates the test derived from 'Budley v. Bukhtoo', 3 N W P H C R 203, has not been understood by the Privy Council as a test derived only from the proviso to Section 185 of the Act. Clearly, Section 185 of the . Act and not the proviso to Section 185 of the Act alone and in particular is what is referred to generally by the Privy Council in their acceptance of the test of Wallis C. J. as one suggested by that section. The section itself being one which had to be read with the definition of private land in the statute which the learned Chief Justice interpreted and applied by reference to 'Budley v. Bukhtoo', 3 N W P H C R 203, there Is nothing in the general reference to Section 185 of the Act by the Privy Council or in the absence of any reference by them to Section 3 (10) of the Act, which militates against the obvious meaning of the passage in Wallis C. J.'s judgment or confines its operation only to cases of conversion of ryoti land into private. The definition of private land was obviously before the Privy Council as well as before the High Court, and the way in which the judgment of the High Court had referred to the meaning of the word "domain" and had actually applied the home-farm-part of the definition of private land to the case before the Court, winding up the whole discussion with a reference to 'Bukdley v. Bukhtoo', 3 N W P H C R 203, obviously negatives any justification for limiting the test of direct cultivation only to cases of conversion contemplated by the proviso to Section 185 of the Act. 116. The next important decision to which I wish to refer is 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, which when carefully scrutinised is not really the contused and confusing one that it has been supposed to be by my learned brethren. I regret to have tp say that I cannot with all respect to my learned brethren who I know have studied that case with much greater meticulousness than I have done agree with a good deal of the criticism levelled against it by them so far as the exposition of the law there is concerned. With the facts of that case as they were ascertained by the learned Judges in their judgment, I am not so much concerned as with the Question how far the law as enunciated by the learned Judges for the purpose of its application to those facts is correct. I do not consider it material to make sure for myself how far the criticism of my learned brethren against the way in which the Court in that case ascertained the relevant facts is correct. I shall assume with respect that that criticism is correct. I need only say that the Court in that case adopted a two-fold factual basis for its conclusion on the question raised before it whether the lands were private lands within Section 3 (10) (b). The first factual basis was that the lands in question were originally ryoti, and the question which arose for consideration on that basis was whether there was sufficiently effective conversion of the land into private. That was negatived by the High Court in appeal in concurrence with the learned Subordinate Judge at the trial. The second factual basis was that the title of the plaintiff to sue the defendants in ejectment was to be traced solely to the grant of 1862 by the Government after confiscation without reference to the existence of a mirasi tenure in the previous owner. 117. Since the case was considered by the High Court on both the bases I cannot agree with the contention of the learned counsel for the respondent that the case must be treated only as a case of conversion of ryoti land into private like the case in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, and can be distinguished from the present case on that ground. As I have already pointed out, this kind of distinction attempted by the learned counsel for the respondents is of no substance and cannot be accepted. The point to note about the decision in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, which is material to the present discussion is that while dealing with the law on the second factual basis, Wadsworth, p. C. J. delivering the judgment of the Court points out correctly how the direct cultivation test of home-farm land had been laid down by Sir John Wallis C. J. in 'Zamindar of Cheixapalli v. Somayya', 39 Mad 341, with reference to 'Budley v. Bukhtoo', 3 N W P H C R 203, after a consideration of the meanings of "domain" and "home-farm" land, and how that test so laid down was later accepted by the Privy Council In 'Zamindar of Chellapalli v. Somayya', 42 Mad 400. The learned Officiating Chief Justice then proceeds to apply that test himself to the case before the Court which, be it noted, was a case under Section 3 (10) (b) and not one Under Section 3 (10) (a) like the present, after making on the unreported decision in Krishnaswami Aiyangar and Somayya JJ. in 'Sri Thiagarajasami Devasthanam v. Muthuswami Odayar', C. M. A. No. 311 of 1943, an adverse comment to the effect that those learned Judges had dealt with the definition of private land in the statute in a way which with great respect he found it difficult to reconcile with the decision of the Privy Council in 'Zamindar of Chellafalli v. Somayya', 42 Mad 400. In applying Sir John Wallis C. J.'s test of direct cultivation the learned Officiating Chief Justice proceeds to note that in ordinary English usage the term "domain" or "home-farrn" would connote land appurtenant to the mansion of the lord of the manor, kept by the Lord for his personal use (that, so far as domain is concerned, as I think), and cultivated under his personal supervision (this so far as home-farm land is concerned as I think). Having said so with reference to the first clause of Section 3 (10) (b) he proceeds to observe that the other clauses, i.e., (ii), (iii) and (iv), referred to land other than strictly domain or home-farm land within the first clause, and that the definition in Section 3 (10) (b) read as a whole, that is, in all its clauses, indicates clearly that the ordinary test for private land is the test of retention by the land-holder for his personal use and cultivation by him under his personal supervision. Then follow these observations: "No doubt such lands may be let oh short leases for the convenience of the land-holder without losing their distinctive character; but it does seem to us to be inconsistent with the scheme of the Madras Estates Land Act as amended to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams 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 land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Madras Estates Land Act cannot acquire occupancy rights. It seems to us that there are no materials In the present case to show that these lands have been so cultivated or retained by the land-holder." Two lines of criticisms have been levelled by my learned brethren against this case. First it is said that the adverse reference in this case to the unreported decision of Krishnaswami Aiyangar and Somayya JJ. is only an expression of general dissatisfaction and disapproval giving no exact indication of what the dissatisfaction or disapproval is about. I find no difficulty in understanding what the dissatisfaction or disapproval is about. The dissatisfaction or disapproval Is about the way in which the learned Judges in the unreported decision confined the test of direct cultivation propounded in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341. and accepted by the Privy Council in 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, to cases of conversion of ryoti land into private. Nor -- and here comes the second line of criticism -- do I read the passage quoted above from 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, and the preceding discussion as betraying the mansion house test, as my learned brother Viswanatha Sastri J. calls it, as the sole test propounded by the learned Officiating Chief Justice in that case for the ascertainment of the character of private land or as betraying confusion on account of a series of varying tests appearing from place to place and not easy to reconcile with each other or one another. The learned Officiating Chief Justice accepts, in my opinion, the test of domain and home-farm as interpreted according to the ordinary English meanings of those words by Sir John Wallis C. J. in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341, so far as the Clause 1, Section 3 (10) (b) (i) is concerned, and reading the other Clauses (ii) to (iv) of Section 3(10) (b) along with Clause (i), the learned Officiating Chief Justice proceeds to wind up by saying that the definition read 'as a whole' indicates clearly the test of retention by the land-holder for his personal use and cultivation by him under his general supervision. It is impossible for me to believe that a Judge, of such long revenue experience in the Presidency as the learned Officiating Chief Justice restricted home-farm land to land lying about the dwelling house of the land-holder or thought that there could be no home-farm land beyond the precincts of the domain attached to the mansion. I hold that the decision in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, states the law with substantial if not literal accuracy and in loyal and respectful conformity to 'Zamindar of Chellapalli v. Somayya', 39 Mad 341 and 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, so far as concerned the meaning of domain or home-farm land of a land-holder by whatever designation known such as , 'kambattam', 'khas', 'sir' or 'pannai'. 118. This view of private land and of home-farm- land in particular ag defined in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, on the basis of the decisions in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341 ana 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, has been accented in the till-now'unreported judgment of the learned Chief Justice and Rajagopalan J. in 'Ramakrlshna Rao v. Seshayya', A; S. No 53 of 1946 which related to the case of a village in the Tedlem estate falling within Section 3 (10) (b). Rajagopalan J. delivering the Judgment of the Court, and after referring to the finding of the learned Subordinate Judge that there was no proof that the mokhasadars actually cultivated the suit lands continuously for a period of 12 years before the commencement of the Estates Land Act observed that in the circumstances of the case before the Court there could be no question of any statutory 12 years period for cases falling under Section 3 (10) (b) (i) 'even taking Section 185 of the Act into account'. - The learned Judges proceeded to say that the test laid down in 'Zamindar of Chellapalli v. Somayya'. 39 Mad 341, and approved by their Lordships of the Privy Council in 'Zamindar of Chellapalli v. Somayya', 42 Mad 400, was applied in 'Mallikarjuna Prasad v. Subbiah', 39 Mad L J 277, as pointed out by the learned Subordinate Judge. It was the same test, says the learned Judge, that was applied by a Bench of this Court in 'Jagadeesam v. Kuppammal', ILR (1946); Mad 687, from which the relevant passages are thereafter quoted by him 'in extenso'. Then follows a discussion of the facts of the particular case which is not material to the present discussion. It will be seen from this that the conclusion expressed by the Court that there could be no question of any statutory 12 years period for cases falling under Section 3 (10) (b) (i) is on the basis of even taking Section 185 of the Act into account. Section 3 (10) (b) (i) is really the thing corresponding so far as our present case goes to Section 3 (10) (a) first part, I respectfully agree with this decision. The decision of another Bench of this Court, Subba Rao and Chandra Reddi JJ. -- in 'Parish Priest v. Kattalai of Sri Thiagarajasami Devasthanam', A. S. Nos. 176 to 178 and 493 of 1946 -- which is to the same effect so far as the interpretation of the character of the home-farm species of private land is concerned has not also so far been reported. There is a very careful and detailed discussion to be found in that judgment with reference to the entire case law on the subject as well as with reference to the definitions of 'kambattam', 'khas', 'sir' and 'pannai' jn Wilson's Glossary. The decision in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687. is in the result accepted by this Bench as it was by the Bench consisting of the learned Chief Justice and Rajagopalan J. in the 'TEDLAM CASE', A. S. No. 53 of 1946, already referred to. I hope that the two unreported decisions will soon be reported, to render our judgments in this case more fully intelligible even as the decision of my learned brother, Viswanatha Sastri J. in 'Narayudu v. Venkataramamurthi', (1949) 2 Mad L J 623, unreported at the hearing of this case has since been reported. 119. As I have already noted, although not as a matter strictly necessary for their own decision of the particular point which arose in the case in 'Bandharu Jogi v. Seetharamamurthi', ILR (1948) Mad 223, the learned Judges of the Full Bench who decided that case (Gentle C. J., Horwill J. and Rajamannar J.) accepted the test laid down in 'Zamindar of Chellapalli v. Somayya', 39 Mad 341 and 'Jagadeesam v. Kuppammal', ILR (1946)' Mad 637: 1946-1 Mad L J 23 at page 245, of the report. There the learned Chief Justice points out: "In ZAMINDAR OF CHELLAPALLI'S CASE', 38 Mrd 341 and in 'JAGADEESAM PILLAI'S CASE', ILR (1946) Mad 687 : (1946) 1 Mad L J 23, the meaning of "domain or home-farm land"--the expressions used in Section 3(10)' --and the nature of private land were discussed. It was pointed out that the above expressions would connote land appurtenant to the mansion, kept for personal use and cultivated under personal supervision, as distinct from land let to tenants for farming." Then the contrast is brought out between the nature of the land before the Court in that case and domain or home-farm land as interpreted in the decisions referred to, in the following terms: "That is not a description of ryoti land which a land-holder cultivates for less than twelve years after its reclamation from waste land, and then lets to tenants as private land at a considerable profit rental." In the 'passage just quoted I find a considered comment of approval by the Full Bench of the decisions in 'Zamindar of Chalafalli v. Somayya', 39 Mad 341 and 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687, which, in my opinion, is entitled to very great weight when we are called upon to overrule those earlier decisions. 120. I do not think it necessary to discuss any more cases subsequent to the- passing of the Madras Estates Land Act 1908 except that I have still to deal with the unreported decision of Krishnaswami Aiyangar and Somayya JJ. in Thiagakajasami Devastanam v. Muthusami Odayar.', CMA No 311 of 1943 and the decision of Madhavan Nair J. reported in 'Channarigadu v. Rangayya', AIR (22) 1935 Mad 789. To take up the first of these two decisions, that pertains, it must be observed, to a case under Section 3(10) (b). The learned Judges negative the applicability to the case before them of Clauses (ii) to (iv) and in dealing with Clause (i) which was the clause applicable they had, unlike in the present case which refers to a case under Section 3(10) (a) first part, to take into account the second proviso to Section 185 which enacts the admissibility or inadmissibility in evidence of expressions in leases, pattas or the like executed before or after the 1st 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. The relevancy of that decision to the present case consists in this that the learned Judges rejected the argument for the respondent before them that proof of direct cultivation would according to the decisions in 'Zamindar of Chelapalli v. Somayya', 39 Mad 341 arid Zamindar of Chalapalli v. Somayya', 42 Mad 400 be necessary in order to establish the character of land as private land in cases within Section 3(10) (b), Clause (i) Which corresponds to the first part of Section 3(10) (a) dealing with home-farm land as part of the definition of private land. In so rejecting the argument the learned Judges explain away the decisions in 'Zamindar of Chelapalli v. Somayya', 39 Mad 341 and Zamindar of Chalapalli v. Somayya', 42 Mad 400 as cases where the lands were originally ryoti lands and were claimed by the land-holder to have been later converted into private lands. It is on this decision that the learned counsel for the respondents before us based his argument in this regard which I have already repelled. I have already dealt with the decision in 'Jagadeesam v. Kuppammal', ILR (1946) Mad 687 which, in my opinion, also militates against any such manner of distinction. I do not need to say anything more upon this decision except firstly that the learned Judges themselves seem to make it clear that the mere vesting of both the melwaram and the kudiwaram in the land-holder is not sufficient to prove the character of land as private land and secondly that the learned Judges refused sanction for the reporting of their judgment as turning on facts essentially. 121. There remains for consideration only the case In 'Chainnarigadu v. Rangayya', A I R 1935 Mad 789. I am not clear that this strikes a note of dissent from the test, of direct cultivation on which the argument for the appellants and petitioners before us is founded I am rather inclined to think that it favours the argument. All that that decision in my opinion, says is that there need be no direct evidence of personal cultivation. Referring to the case in 'Zamindar of Chalapalli v. Somayya', 39 Mad 341 : 27 Mad L J 718 it is observed by the learned Judge as follows : "In the case quoted (Zamindar of Challapalli v. Somayya 39 Mad 341 : 27 Mad L J 718) it was thought that it was necessary that 'direct evidence of cultivation' should be given to prove that the land in question was private land, because it was proved that the land originally was ryoti land." What the learned Judge had in mind is obviously a contrast between direct evidence of cultivation and indirect evidence of cultivation. In the case before the learned Judge, there was such indirect evidence to support the finding of the lower appellate Court that the land in question was home-farm land which was furnished by the description of the land as 'khasbagayat' in several documents and by the proved fact that the lands in question were let yearwar to different tenants and on different rates of rent. The learned Judge lower down in the judgment observes: "It was not contended before me that the only evidence that will prove that the land belongs to the zamindar as his home-farm land is 'evidence of direct cultivation'. For if that is the case there is no such evidence in the case before us." It is clear therefore that in that case, there was no contention before the learned Judge of the kind which has been advanced before us for the appellants and petitioners, and the case in question even if it is not to be regarded as a decision in their favour cannot certainly be regarded as a decision against them. 122. That disposes of what I consider to be the material case-law which deserves discussion for the purpose of the present case. I am of opinion that the well-settled authority of this Court on the point under consideration which in the bulk if not entirely is in favour of the appellants and petitioners before us ought not to be departed from and that the conflict introduced into the situation by the unreported decision in 'Thiagarajaswami Devastanam v. Mothuswami Odayar', C M A No. 311 of 1943 should be resolved in favour of that well-settled authority. 123. But then it is said that there is a de cision of the Privy Council reported in 'Bindehswari Prasad v. Kesho Prasad', 5 Pat 634, which is inconsistent with the con tention for the appellants and petitioners before us and entails its rejection. The facts of that case have been fully set forth in the judgments of my learned brethren and need not be referr ed to over again by me. It seems to me how ever that before treating the decision in that case as concluding the contention of the appel lants and petitioners before us adversely to them it is necessary to bear in mind in regard to the point under consideration the features of difference as well as of affinity between the Bengal Tenancy Act under which that case arose and the Madras Estates Land Act under which the present appeals and revision petitions have arisen. I am not certain that the two Acts are strictly peaking in 'pari materia' though it is well-known that in no small measure was our Act based on the Bengal Tenancy Act. The Bengal Tenancy Act deals with a more complex system of land tenures than the Madras Act does, and the treatment of private land in the two Acts is not by any means the same or even substantially similar. As observed in Volume 31 of Hailsham's Edition of Halsbury's laws of England at pages 486 and 487 it is difficult to define what constitutes being in "pari materia' and I am by no means clear that the two statutes passed by two different Provincial Legislatures of the country with reference to not altogether similar conditions of land-holding can be regarded as so far as 'pari materia' that a decision under the Bengal, statute must necessarily rule a case under the Madras Act. Even In cases of statutes in 'pari materia' it is laid down at the same place to the same volume of Halsbury's Laws of England that while it may be presumed in the absence of context indicating a contrary intention that similar language is to be similarly interpreted the same word used in different Acts may however have different meanings in each statute according to the intentions of the Acts. A comparative study of Section 3(10) (a) and Section 185 of the Madras Act on the one hand & of Section 120 of the Bengal Act on the other makes it dear that while home-farm land by whatever designation known as 'kambattam, khas, sir or pannai' of Section 3(10) of the former Act corresponds to Section 120(1) (b) of the latter, private land under the latter Act is, as shown by Section 120, not necessarily cultivated land but may well be other than cultivated land. There are no definitions to be found in that Act of ryoti land and private land as we have in ours. Private land is, in that statute, apparently treated as synonymous with land of which the land-bolder is the full owner. That is how their Lordships' reliance upon the facts adverted to by them in the penultimate paragraph of their Judgment in support of their conclusion in favour of the private character of the land in question in that case becomes intelligible. "Any other evidence that may be produced" which is the language of Section 120(2) of the Bengal Tenancy Act could therefore well cover such facts. Similar language in Section 185(3) of the Madras Estates Land Act cannot have the same result because the evidence in question must bear upon the home-farm character, which is part of the statutory definition of private land, of the land claimed to be private, that is, upon the character of the land as land directly or personally cultivated by the landholder himself or under his supervision by his own servants or by hired labour with his own or hired stock. The Privy Council ruling might be useful and apposite if private land meant here, as held by my learned brethren all land in the absolute ownership of the land-holder. Not otherwise. Since I hold that private land does not mean that, according to the Madras Statute the Privy Council ruling has, in my opinion, no application. Moreover, in that case it will be seen that of the facts to which their Lordships had regard In upholding the private character of the land there in question even on the basis of the appellants' construction of Section 120 of the Bengal Tenancy Act and even without reference to the patta of 1902 and the kabuliats of 1883 and 1392 one important fact is the admission on defendants' behalf in the plaints of 1910 as to the character of the land as 'zirait'. The admissions as noted by their Lordships at page 640 of the report are that "in the plaints in each of the suits the lands are described as lands the 'milkiat' interest in which belonged to Dumraon Raj and the lands were stated to be 'zirait' lands and to have been recognised as such by village custom". There was therefore before their Lordships indirect evidence. if not direct, of the character of the land as cultivated land falling within Clause (b) of Subsection (1) of Section 120. I am not like my learned brother--Viswanatha Sastri J., surprised in these circumstances that this case has not been referred to so far in any case of this Court as bearing upon the matter on hand. Nor do I share his view that it is unfortunate that it has not been so referred to. It is also noticeable that no case under the Madras Estates Land Act was cited to the Board in this Patna case as is made clear by the report of arguments to be found in 'Bindeshwari Prasad v. Kesho Prasad Singh', 53 Ind App 165 : 5 Pat 634, as would have been done had the two Acts in the respect with which we are concerned, been regarded as in 'pari materia'. 124. Now, to summarise my conclusions on the question of law they are as follows: 1. that domain land which is one category oft private land is land about the dwelling house of the land-holder and in his immediate occupancy; 2. that there must be proof that at some time or other and for some time or other there was direct cultivation by the land-holder before cultivable land in an estate can be claimed to be "home-farm" land and hence "private land" within the definition of "private land" in the statute; 3. that the evidence may be direct and positive or indirect and circumstantial; 4. that the mere existence in the land-holder of both the warams in a land in an estate does not 'per se' make of it private land; 5. that where there is any letting of any private land, as there may well be, the letting must be on terms and conditions consistent with an intention on the part of the land-holder to resume direct cultivation or personal use; 6. that local custom may well define and demarcate private land in an estate in accordance with customary notions of people of the locality although in a manner different sometimes to what the statutory definition of private land may justify; 7. that, otherwise, any evidence admissible under Section 185 of the Madras Act must be such as satisfies the requirements of the definition of "private land"; and, 8. that cultivable land In an estate must be presumed to be ryoti, unless the contrary is shown, and that the contrary is not shown by the circumstance of the existence of both warams in the land-holder. 125. Next in order to apply these propositions of law to the present case I must turn to the findings of fact of the lower appellate Court which are binding on this Court in second appeal find in revision. The question then will be whether those findings in the light of the law, as I have stated above, justify the rejection of these appeals and revisions or require that they should be allowed. 126. The learned Subordinate Judge holds in paragraph (7) of his judgment that the defendants had never any occupancy right and till recently did not claim any, and points out in paragraph (13) of his judgment that there have been admissions by some of the defendants or their predeeessors-in-title touching the existence of both the warams in the land-holders as by their being parties to the description of land as 'iruvaram' land in documents and by their agreeing to the payment of 'swami bogam' to the land-holder. He holds in paragraph (14) that sometimes there has been a change of tenancy though generally the lands have continued to be in the occupation of the same family hereditarily and observes in paragraph (16) that there is no evidence as to when the defendants or their predecessors-in-title were actually let into possession. He says that we have no evidence as to who brought the lands under cultivation but that from 1864 onwards successors-in-interest of the original inamdars have been claiming both the warams in lands by dealing with them and leasing them out. He does not find that varying rates of rent have been charged or paid. These are essentially the findings of fact of the lower appellate Court. 127. The learned Judge however seems to think, as appears from paragraph (16) of his judgment, that considering the evidence as a whole and having regard to all the circumstances the question for consideration is whether the tenants had any occupancy rights in the land. The question, in my opinion, is not precisely that but rather whether the plaintiffs have established the character of the land as private land and effectively rebutted the statutory presumption that the land is ryoti. He also discusses the case as if it fell under Section 3(2) (d) and Section 3(10) (b) and not under Section 3(2) (e) and Section 3(10) (a) of the Act which are really the relevant parts of the statute for consideration on our conclusion as to the nature of the inam grant. With reference to the law applicable, the learned Subordinate Judge relies on 'Chinnarigadu v. Rangayyai, AIR (22) 1935 Mad 789, with which I have already dealt in the foregoing. He also relies on a statement in the ramnad Manual prepared by Mr. T. Rajaram Rao the Dewan of the Ramnad Samsthanam under the order of the Court of Wards in 1890 which I shall quote and consider presently. 128. On the findings of the lower appellate Court just referred to, it seems to me that applying the law as laid down in the foregoing I can only reach one result--namely that these appeals and revisions must be allowed--subject of course to what I shall have to say 'infra' on the passage in the Ramnad Manual relied upon by the lower appellate Court. The learning about 'swami bogam' and what it means has been referred to in detail in the judgments of my learned brethren; but that word, as I think, emphasises nothing more than the existence of the kudiwaram as well as. the melwaram in the land-holder. It is no doubt a payment in separate recognition of the land-holder's right to the kudiwaram, but cannot in my opinion, afford any evidence however, indirect, of direct cultivation of the lands by the land-holder at sometime or other and for sometime or other, proof of which by means of one species of evidence or another within the intendment of Section 185 of the Madras Estates Land Act is A condtion pre-requisite for the recognition of the lands in suit as private lands. Where there is proof of direct cultivation at some time or other and for some time or other, subsequent letting may not matter, and the respondents can well rely on the leases in the present case as in no way inconsistent with an intention on the land-holder's part to resume direct cultivation. Proof of the direct cultivation required is admittedly lacking in the present case, and the judgment of the lower appellate Court which mistakes the law and also misconceives in a way the rule of 'onus pro-bandi' applicable to the appreciation of the evidence cannot be allowed to stand., After all on the plaintiffs' side the positive evidence adduced to prove the private character of the lands is as rightly remarked by my learned brother Viswanatha Sastri J. poor jn quality and meagre in extent and the statutory presumption of the ryoti character of the lands must in my opinion be held not to have been effectively rebutted. 129. The passage in the Ramnad Manual which has still to be considered is. as quoted by the lower appellate Court in its judgment to the effect that "pannai lands are those in which the zamindar or inamdar owns both the landlord's and tenant's rights and that he can lease out the lands to any one he likes for cultivation and obtain from him 'swami bogam' or 'thunduvaram' a rent obtained in acknowledgment to the landlord's tenancy right in the soil in addition to the melwaram or landlord's share, and that most of the 'dharmasanams' in the zamindari were held under 'pannai' tenure." After all, the manual itself has not been produced before us and I am afraid that this passage, standing by itself, cannot if properly read, be of any conclusive assistance to the respondents. It is not stated in it that every land in which the zamindar or inamdar owns both the landlord's and tenant's right is necessairly 'pannai' land irrespective of the requirement of proof of direct cultivation which is implicit in the word "pannai". What all is stated there is that 'pannai' lands are lands in which the zamindar or inamdar owns both the landlord's and tenant's rights. Then again it may be that 'pannai' lands can be leased out by the zamindar or inamdar to any one he likes for cultivation, and that 'swami bogam' or 'thunduvaram' can be obtained in respect of them. It has not been suggested for the appellants and petitioners or in any of the decisions relied upon by them that 'pannai' lands' cannot be leaded out at all; nor does the fact that 'swami bogam' or 'thunduvaram' can be obtained by the owner of 'pannai' lands from his tenant necessarily show anything more than that there is a distinct recognition of the existence of the kudiwaram right in the land-holder. It was contended in fact before the lower. appellate Court that the fact that in the documents relied upon by the plaintiffs there was reference to both the warams showed that the two interests in the land were kept distinct, which is not possible in the case of pannai lands, and that therefore the lands must be treated as ryoti lands. Whether a contention going go far as that is well founded or : not is another matter; but there is no doubt but that the charging of 'swami bogam' or 'thuriduvaram' by the landholder when leasing out lands is not a necessary indication of the character of the lands as pannai lands. In fact in a case in 'Sivanpandia Tevar v. Zamindar of Urkad', 41 Mad 109 to which our attention was drawn by the learned Counsel tor the appellants and petitioners it was held that 'swamibogam' was part of the rent lawfully payable by a ryot to the land-bolder even in respect of ryoti land. It is remarkable that in none of the documents on record is any description to be found of the suit lands as pannai land, although pannai is a term certainly in vogue in the area from which these cases have come. It is difficult in these circumstances to attach any great importance to the passage in the Ramnad Manual relied upon by the lower appellate Court. Much less am I prepared to read the passage in question as indicative of a local custom whereby if land is shown to be land belonging in both the warams to the Jand-holder on which when leased out 'swamibogam' or thunduvaram' is collected, it is 'ipso facto' liable to be treated as home-farm land and as therefore private land according to the definition of "private land" in the statute. In fact, I may observe that no question of local custom as such was at all argued by counsel before us. Nor does it appear to have been raised in the Courts below. 130. This disposes of all that I consider to be relevant matter for the purpose of the pre sent appeals and revisions, which must, in my opinion, be allowed. I regret that I am obliged to, differ from my learned brethren for the reasons indicated in the foregoing, as I am quite alive, to the consideration that the ruling of this Bench in these appeals and revisions can not of course be quite as authoritative as it would be, if the decision were unanimous. At the same time, I must say that I differ with no sense of diffidence but with every sense of confidence inspired by former judgments of distinguished Judges of this Court which derive support from the dicta of the Privy Council in 'Zamindar of Chelappali v. Somayya,' 42 Mad 400 and 'Chidambara Sivaprakasa v. Veerama Reddi', 45 Mad 586 and which have held the field for more or less an unbroken period of more than three decades. Out of the great sense of deference that I entertain for my learned brethren, I have anxiously considered whether I may not bring my self to agree with their conclusions, whatever my view oi some of their reasoning; but the points of disagreement in perspective and de tail alike have been too marked and too defined to admit of my concurrence at least in the result Out of the same sense of deference, I have had to deal in great detail than I should have otherwise done in a manner perhaps savouring somewhat of the argumentative with parts of the reasoning of my learned brethren which I could not after the most earnest and anxious consideration accept. Some of those parts of the reasoning relate to points not raised or enlarged upon by learned counsel in the case on whom I mean no remark of disparagement on that account. I have had therefore to make references to these points by making references to the judgments of my learned brethren and not to the arguments of the learned counsel. I must say further that I have laboured under some slight sense of embarrassment when called upon to deal with the judgment of my learned brethren, Mr. Viswanatha Sastri J. in 'Narayudu v. Venkataramanamurthi', (1949) 2 Mad L J 6_23 at p. 624, when sitting in his company. His Lordship knows perhaps better than I do to estimate its ambit and explain its import. I have not however felt myself relieved on that account of the responsibility of interpreting that decision in my own way and according to my own lights in the context of the prior case law on the subject. I can only hope that I have performed that rather delicate task with all the success of which the situation admitted. In conclusion I desire to express my sense of grateful appreciation of the judgments of my learned brethren which I have had the advantage of reading before preparing my own & of the able and exhaustive arguments of learned counsel on both sides, on account of the great assistance which I have derived from those judgments as well as those arguments in reaching, in particular, on the second of the points for decision set forth by me at the opening of this judgment, my own conclusion which, although to my regret a dissident one is the only one which I have found it possible to reach in all the circumstances of the case. (In accordance with the opinion of the Majority, the Civil revision petitions and the second appeals are dismissed with costs, subject to the modification indicated above of the decree in second appeals. Rupees five nundred is fixed as advocates' fee in each batch). Madras High Court Kailasam Pillai vs Nataraja Tambiran And Ors. on 5 December, 1916 Equivalent citations: (1917) 32 MLJ 271 Author: J Wallis JUDGMENT John Wallis, C.J. 1. These are appeals in two suits originally numbered Original Suits Nos. 1 and 2 of 1905 in the District Court of Madura brought with the consent of the Advocate-General under Section 539 of the Code of Civil Procedure by different plaintiffs. In Original Suit No. 1, the subject of Appeal No. 317, it was sought to have it declared that there was no lawful trustee of the Tiruvannamalai Mutt and of the dependent Devasthanams or temples, while in the second, the subject of Appeal No. 318, the declaration was only sought in respect of the Devasthanams or temples. The reason for filing the two suits was that it was considered doubtful whether the holder of the religious office of Pandarasannadhi of the Mutt was a trustee within the meaning of Section 539 of the Code of Civil Procedure. The case set up in the plaint was that after the death in May 1893 of Arumugam a former Pandarasannadhi one Tandavaraya took wrongful possession of the Mutt under a will which the Sub-Registrar and the District Registrar subsequently refused to register on the ground of forgery, and that shortly after the first defendant was appointed as his successor "out of fraudulent and sinister motive" and that the appointment was void. The first issue settled in both suits was, "whether the 1st defendant (the de facto incumbent of the office) is a mere trustee of the Mutt and has not got an estate for life in the Adhinam properties? On the 14th March 1906 the District Judge dismissed both suits holding, on the authority of Vidyapurna Tirtha Swami v. Vidyanidhi Tirtha Swami (1904) I.L.R. 27 Mad. 435 that the Pandarasinnadhi was not a mere trustee and that no suit lay he his removal under Section 539, either as regards the Mutt or the trusteeship of the Devasthanams which in his opinion went with it. When the case came before Munro and Abdur Rahim, JJ. on appeal, they held that in any case there was no reason why the properties belonging to the Devasthanams which the 1st defendant admittedly held in trust should not be protected if it were proved that the defendant had been guilty of waste and mismanagement as alleged, or why if a proper case was made out the Court should not make the necessary provision for a proper administration of the trust. They accordingly allowed Appeal No. 90 of 1906 in Original Suit No. 2 of 1905, and adjourned the other Appeal No. 91 of 1906 in Original Suit No. 1 of 1905 pending the answer to a reference which they made to the Full Bench nearly in the terms of the first issue, "does the head of a Mutt hold the properties constituting its endowment as a life-tenant or as a trustee?" The Full Bench answered that he was not a trustee except in so far as it might be shown that he held any particular properties on trust. At the same time they refused to regard him as a life-tenant. See 19 M.L.J. 778 : 33 Mad. 265. When the case went back to Munro and Abdur Rahim, JJ., they stated that the reply was that in the absence of evidence to the contrary the head of a Mutt is not a trustee. They accordingly reversed the decree of the District Court in this suit also, and remanded it for disposal according to law. 2. The two cases after remand were transferred to the file of the Temporary Subordinate Judge of Ramnad and numbered in that Court 17 and 18 of 1912 and they were tried together with a third suit No. 19 of 1912 brought by one Ponnambalam for a declaration that he had been duly elected to the vacant office of head of the Mutt by the thambirans or disciples. This suit was dismissed and the dismissal has become final as no appeal has been filed. 3. As regards the Original Suit No. 1 of 1905 the Subordinate judge found that there was no evidence to the contrary to show that the Pandarasannadhi was a trustee, and he accordingly held that the suit was liable to dismissal on this ground. No attempt has been made to question his finding on the evidence; but it is contended that the decision of the Full Bench is opposed to the recent decision of the Privy Council in Ram Parkash Das v. Anand Das (1916) I.L.R. 43 Cal. 707 : 31 M.L.J. 1 (P.C.). This is strongly contested on the other side, but we do not propose to go into this question, as we consider that the point has already been decided in this suit by a Bench of this Court in the former appeal, and that the proper way of questioning it is by appeal from that decision. 4. The third issue in both suits was "The plaintiffs suing the 1st defendant as a trespasser, is the suit maintainable under Section 539 of the Code of Civil Procedure?" We agree therefore with the Subordinate Judge that as regards Original Suit No. 1 of 1905 (17 of 1912) this must be answered in the negative and the suit must be dismissed in so far as it relates to the office of Pandarasannadhi and its endowments. 5. As regards the second suit O.S. No. 2 of 1905, now 18 of 1912, the defendant's pleader did not press this issue at the trial and it was accordingly found for the plaintiffs, and the suit was held to be maintainable under Section 539 as relating only to the Devasthanam properties. It still involves the question whether the 1st defendant is the lawful Pandarasannadhi as, if he is not, he has no right to the trusteeship of the Devasthanams, and those interested in these charities have a right to sue to have proper provision made for the trust. The Subordinate Judge has accordingly gone into the question of the validity of the 1st defendant's appointment and has found that it is not open to objection and we have now to deal with that finding on appeal. 6. It is unnecessary to summarise the numerous descriptions of this office which are to be found in the decisions of this Court. The evidence shows that, as in the case of other similar Mutts, the Pandarasannadhi for the time being nominates one of the disciples who have received initiation as sanyasis or ascetics to succeed him on his death and confers upon him abishegam, a sort of ordination, which, as appears from the evidence in this and other cases, is regarded as having the effect of deification and also empowers him to initiate disciples as sanyasis. During the life-time of the Pandarasannadhi his successor in this Mutt is said to fill the office of Chinna-pattam. When the nomination is made at the point of death it is not unfrequently made by will as well as by conferring abishegam where possible, the will being intended to evidence the exercise of the power of appointment. 7. In the plaint as already stated the plaintiffs attacked the 1st defendant's appointment on the ground that Tandavaraya under whom he now claims was not himself the lawful Pandarasannadhi and also on account of the circumstances under which the 1st defendant's appointment was made. 8. This last question though distinctly raised in the pleadings was not, to say the least, very clearly taken in the issues in these two suits, but it was the subject of the fourth issue in the third suit which was tried with them : Whether the appointment of the 1st defendant to the Chinna-pattam by the late Pandarasannadhi 'was made mala fide to serve his own purpose, and therefore invalid?" It is, I think, clear that the parties in these two suits also went to trial on this issue, and that we are bound to deal with it. At the hearing in the lower Court it was admitted that Tandavaraya was the lawful head of the Mutt and the case must be dealt with on that basis. It is still however necessary to refer to the circumstances under which he was appointed in so far as they affect the nomination of the 1st defendant as his successor. As already stated Arumugam the former head died suddenly in May 1893 six months after he had been acquitted on a charge of murder. In the proceedings taken for the registration of his alleged will evidence was given that he regarded Tandavaraya one of the Tambirans or disciples of the Mutt as responsible for his prosecution. On his death this Tandavaraya entered on the office under an alleged appointment by the deceased both by will and abishegam shortly before his death. It appears that some suspicion of foul play was entertained and that an investigation was held by the Sub-Magistrate, as one of the reasons given by the District Registrar in Exhibit D for refusing to register the will was that no mention was made of it by Tandavaraya during this inquiry. The result of the inquiry would appear to have been that there was no ground for taking action against any one. The 1st defendant was away at the time, and when he returnel to the District he did not return to the Mutt but went to live under the protection of the Zamindar of Sivaganga who also refused to recognise Tandavaraya and joined with him in opposing the registration of the will put forward by Tandavaraya. On the 11th June 1893 the, 1st defendant presented a petition Exhibit M to the District. Court and another Exhibit U to the District Registrar, and two days later he published notices in the District Gazette and the Madura Mail and circulated a notice to the public Exhibits H, H1 and H2 in which he claimed that he had been appointed to the Chinna-pattam by the late Pandarasannadi and was entitled to succeed and that the will put forward by Tandavaraya was a forgery. In the petition to the District Judge he also accused Tandavaraya of murdering the deceased. A perusal of the District Registrar's judgment (Ex. D) delivered after an elaborate investigation in which both sides were represented by prominent practitioners shows the very serious difficulties which Tandavaraya would have had to face if he had been called upon to substantiate his claims to the succession in a Court of Law by proving the execution of the will. It was in these circumstances that certain persons intervened to bring about a compromise between the 30th April 1894 the date of the judgment and the 2nd July 1894 when Exhibit 1 was executed. The evidence shows that the compromise was mainly brought about by three persons whose respectability has not been questioned. The 1st defendant was first induced to leave the entourage of the Sivaganga Zamindar and go to Madura and after the terms had been settled he returned to the Mutt where Tandavaraya and he executed Exhibit L, The document recites that Tandavaraya had duly succeeded and was in possession, that the 1st defendant had been asserting that he himself had been appointed, and that for the past year they had both been litigating about this and incurring much expense and putting the institution to much inconvenience, and that in the interests of the institution they had both settled the matter amicably on the terms that Tandavaraya was to be the Pandarasannadhi with all the rights of the office and that the 1st defendant was to be the Chinna-pattam or junior head and heir to Tandavaraya, and that during Tanda-varaya's life-time the 1st defendant was to enjoy certain specified properties belonging to the Mutt without interference, and that during his life-time Tandavaraya was not to appoint any one as heir to the Chinna-pattam (sic). Assuming what was conceded by the appellants in the lower Court for the purposes of the case that Tandavarya had been duly appointed, but assuming nothing more we have to deal with two questions : was this a good exercise by the holder of a public religious office of the power vested in him by the usage of the institution to appoint a successor during his lifetime and secondly, is it now not open to question as having been one of the conditions of a bona fide settlement of doubtful claims effected in the best interests of the institution? It will be convenient to deal with the latter question first, as it is contended that if the answer is in the affirmative it is conclusive. In matters like this, it is important to look at the substance rather than the form and the first question is whether this was really a compromise of doubtful claims, or an exercise by Tandavaraya 6f his power of appointment in the first defendant's favour with a view of escaping the very serious difficulties with which he would be confronted if called upon to prove his own appointment in a Court of Law at the instance of the 1st defendant. That the 1st defendant's counter-claim by virtue of a prior appointment was of a most unsubstantial character appears from his cross-examination on which the Subordinate Judge has commented and may be gathered from his written statement Exhibit E1 in a subsequent suit in which he excused his conduct in contesting the will of the late Pandarasannadhi as due to bad advice, ill-feeling, and imperfect knowledge of the facts, and tacitly admitted that his own claim to the office under a prior appointment was without foundation. This claim of itself would never have caused Tandavaraya any uneasiness or afforded a ground for compromise, and on the most favourable view its abandonment formed a very small part of the consideration for the compromise. The substance of that compromise was that the 1st defendant was to abstain from putting Tandavaraya to the proof of his own appointment as Pandarasannadhi in consideration of being appointed his successor with immediate enjoyment of part of the,Mutt properties. In consideration of a private advantage the first defendant was to desist from challenging as he had been doing till then Tandavaraya's claim to have been duly appointed to a public office of a religious character. The 1st defendant having practically no claim at all to this office and Tandavaraya having a claim which it is clear he would have had great difficulty in proving, they agreed to compromise their differences by dividing the enjoyment of the office on the terms that Tandavaraya was to hold it for life and the 1st defendant after him. It was in fact not a bona fide settlement of doubtful claims at all, but an arrangement of a very different character by which Tandavaraya agreed to exercise a power of appointment incident to the office which he claimed for the purpose of obtaining an advantage for himself. In Girijanund Datta Jha v. Sailajanund Datta Jha (1896) I.L.R. 23 Cal. 645 which is a case of the compromise of rival claims to succeed to a religious office the sole consideration on either side was the abandonment of a bona fide claim on the other side and it is unnecessary to consider it further. Much time has been spent on both sides in taking us through a great number of English and Irish cases to show what will and what will not be upheld as the valid exercise of a power, but it is unnecessary to go into them. I find as a fact for the reasons already given that the appointment of the 1st defendant was made by Tandavaraya not in a bona fide settlement of rival claims, but in furtherance of his own interests; and that on that ground it was a bad appointment as held by their Lordships of the Judicial Committee in Ramalingam Pillai v. Vythilingam Pillai (1893) I.L.R. 16 M. 490. In these circumstances I think it unnecessary to discuss the question how far such compromises can be supported. It is said and truly that this arrangement did not prevent other people from questioning Tandavaraya's right to the office and that the Zamindar of Sivaganga tiled Original Suit No. 53 of 1895 in the Subordinate Judge's Court of Madura East contesting the validity of the appointment and claiming the right to appoint as on a vacancy, Exhibit E. The fact that Tandavaraya did not obtain complete security under this arrangement does not make it any the less objectionable. As a matter of fact the Zamindar did not prosecute the suit; possibly because his right to do so was questioned, Exhibit XXXII. There were not the same objections to a suit by the present 1st defendant as one of the Tambirans of the Mutt, and it was no doubt realized that it was of the first importance to buy off his opposition. Once this was done, opposition soon died down and Thandavaraya enjoyed the office for the rest of his days. 9. If this be the true nature of the transaction, it was of a highly objectionable character and the Court cannot countenance it even at this distance of time on the ground that it was considered to be for the benefit of the institution in the sense that it put an end to disputes between the rival Tambirans. It has also been contended that the compromise should be supported as a family settlement; as to this I cannot but think that agreements as to filling up a religious office of importance in the eyes of Hindu worshippers raise very different considerations and that the decisions as to family settlements are inapplicable. The question of limitation was not argued in the lower Court, but has been raised before us, and it has been contended that the suit is barred under Article 120 of the Indian Limitation Act. The position of the Chinna-pattam is analogous to that of an ordinary reversioner with a mere spes successionis dependent on his surviving the Pandarasannadhi who appointed him. Until he succeeds to the office there can be no duty to question his right to succeed and any attempt to do so by a declaratory suit would probably fail. We accordingly modify the decree of the Temporary Subordinate Judge by declaring that the 1st defendant is not the lawful trustee of the Devasthanams and the endowments and removing him from their management, and by directing the Temporary Subordinate Judge to appoint a fresh trustee of the Devasthanams, and by directing that the trustee so appointed be placed in possession. Costs of the plaintiffs in Appeal No. 317 of 1913 will come out of the Devasthanam's estate throughout. There will be no order as to costs in Appeal No. 318 of 1913. Napier, J. 1. These are appeals in respect to two suits tried in the Court of the Temporary Subordinate Judge of Ramnad. They were brought by two sets of plaintiffs and with the sanction of the Advocate-General. In Appeal No. 317 of 1913 the plaintiffs asked for a declaration that one Nataraja Tambiran the presenti holder of the office of Pandarasannadhi of the Thiruvannamala Adhinam is not lawfully entitled to that office and also not entitled to be the trustee of the Anjukovil Devasthanam and the properties appertaining thereto. They therefore pray for his removal from these positions and the appointment of a new trustee for administration of the trust. In Appeal No. 318 of 1913 the plaintiffs confine the relief which they asked for to a declaration and removal from the position of trustee of the Devasthanam and its properties. The suits were tried together in the Subordinate Judge's Court and a third suit, which is unfortunately not before us, was tried with them and evidence taken in all the three suits - a procedure that has given rise to certain difficulties which will be dealt with later on. The position taken up by the defendant Nataraja Tambiran is stated in paragraph 13 of his written statement and is that one Thandavaraya Desikar who was the lawful Pandarasannadhi of the Mutt nominated him as his successor to the Adhinam with appropriate initiation and ceremonies on the 9th July 1894, that the late Pandarasannadhi died on the 16th March 1902 and that he himself succeeded to the headship and trusteeship of the Devasthanam. He raises other defences also which can be dealt with later on. The plaintiffs do not deny the nomination and initiation of the defendant as Chinna-pattam and successor by the late Pandarasannadhi, but plead that it was bad in law for the following reason, namely, that the appointment was not made with a sole view to the benefit which would accrue to the Mutt and to the disciples but with the object of getting rid of an opponent who was at the time both setting up a claim to be the lawful Pandarasannadhi and challenging the truth of the appointment and initiation of Thandavaraya himself. A further contention is raised by the plaintiffs that apart from the intention with which the appointment was made, it is illegal in that no valid appointment can be made by compromise of conflicting claims. The Advocate-General who appears for the defendant has contended that as long as the person appointed belonged to the class from whom the Pandarasannadhi is chosen, it is not for the Court to look into the circumstances of his selection. For this extreme proposition, there is no authority and it is clearly negatived by the decision of the Privy Council in Ramalingam Pillai v. Vythilingam Pillai (1893) I.L.R. 16 Mad. 490. I am satisfied that it is our duty to examine the surrounding circumstances, not for the purpose of ascertaining the motive influencing the appointment, but to see whether the appointment was made with the object and intention of conferring a benefit on the Mutt and the disciples. The admitted facts are as follows : one Chinna Arumuga Desikar was in the beginning of 1893 Pandarasannadhi of the Mutt. He died on the 23rd May of that year, and Thandavaraya Desikar at once claimed the succession, alleging that he had been initiated by the deceased on the day before his death and that the appointment had been confirmed by a will made on the same date by the deceased. His claim, in turn, was at once challenged by Nataraja Tambiran on two grounds, (1) that he had himself been appointed and (2) that the story of the initiation was false and the will a forgery. Thandavaraya presented the will for registration on the 23rd May 1893. The registration was opposed by Nataraja charging the forgery and making a further allegation that Thandavaraya had murdered the late Pandarasannidhi. An exhaustive enquiry was held by the Sub-Registrar who found the will to be a forgery and his decision was confirmed by the District Registrar on the 30th April 1894. On the 9th July 1894 Thandavaraya nominated Nataraja to the post of Chinna-pattam, a position which carried with it the right to succeed to the Pandarasannadhiship, and performed the necessary initiation ceremonies. It is argued by Mr. Krishnaswami Aiyar that the true inference to be drawn from these facts is that Thandavaraya felt himself in a position of grave danger in that the defendant might at any moment apply to the District Registrar for sanction to prosecute him for forgery and that the arrangement was one by which he bought off opposition to his claim, an opposition which had already acquired a very strong position. The Advocate-General has contended that this could not have been the intention because as well as Nataraja, he had a strong opponent in the Zamindar of Sivaganga who was of course not affected by these arrangements and he could not hope to stifle action by the Zamindar and in fact did not do so, as the Zamindar brought a suit against him in the following year challenging his claim to be lawfully" appointed. Mr. Krishnaswami Aiyar relies on the terms of the agreement (Exhibit F.) under which Nataraja was appointed Chinna-pattam with unusual and special rights and privileges. Now Exhibit F is signed by both parties and it recites that Thandavaraya was duly appointed Pandarasannadhi by Arumuga Desikar, the late Pandarasannadhi and has taken possession of the office and its dignities. It further recites that Nataraja had gone away to Madura and other places on account of ill feeling but that he had returned in obedience to the order of the Pandarasannadhi and had been appointed Chinna-pattam and received Abishegam and now holds that office. It then provides that Thandavaraya is to remain in full possession and enjoyment of the office, and that Nataraja shall, as long as he holds the position of Chinna-pattam, be entitled to the possession of the Matam at Kumbakonam and the Matam at Mylapore attached to the Thiruvannamalai Adhinam and also to receive all the income of the villages mentioned in the schedule without any interference by the said Thandavaraya and that he shall manage the said Matams and the charities connected therewith. Thandavaraya is to conduct all the Matams attached to the said Adhinam other than those transferred to Nataraja without any kind of interference by the said Nataraja. And lastly Thandavaraya covenants not to appoint any one else to the office of Chinna-pattam as he has agreed that Nataraja shall succeed him to the Pandarasannadhiship. Now it must be conceded that this is an unusual arrangement. It is true that Thandavaraya remains Pandarasannadhi, but it is clear on the language of this document that there was an actual division of the temporal rights and possessions. The same language is used in the allocation of the properties to each and Thandavaraya reserves no more rights in the alienated properties than Nataraja has in the properties retained, so that it is not merely a case of grant of wide powers of management over certain selected Mutts and properties attached to them. As a matter of fact, Nataraja retired at once to Mylapore and lived there managing the properties, and the Judge has found that he actually allowed some of the Mutt properties to be sold for debts incurred by him, Another some what suspicions circumstance is the haste with which, this appointment was made. It is of course open to the Pandarasannadhi to appoint his successor at any time, but when the appointment is made little more than a year after the Pandarasannadhi succeeds to the office, that circumstance is one to be taken into consideration when the appointment is challenged to have been made with an improper object. 2. A considerable amount of oral evidence was let in on behalf of the plaintiffs to support their case and several witnesses speak to their own belief and to the rumours current that Thandavaraya was at the time in danger of prosecution. A good deal of it is, in my opinion, inadmissible. But plaintiffs' 6th witness speaks to something definite. He says that Thandavaraya asked him to compromise with Nataraja and stop the prosecution, that he went to Madura for this purpose, met Nataraja and asked him not to prosecute as it was a big matter and the prosecution would be a disgrace to both sides. He says that Nataraja agreed to drop the matter if he was appointed Chinna-pattam and an agreement was made under which he would be irremovable and have sufficient properties to maintain his position. As against this evidence there is the fact elicited from him in cross-examination that he did not himself effect the compromise and he admits that he never told anyone about this matter. Plaintiffs' 18th witness too claims to have taken part in the preliminary negotiations, but as he was a witness to the will which was attacked as-forgery, he is not perhaps a very reliable witness. Defendant's 6th witness makes an admission which is important considering that he was supporting the defendant. He states that Nataraja was disputing the will as a forgery and that after the refusal to register it he was intending to adopt further proceedings, but that one Ramasami Aiyar brought Nataraja from Madura and settled the disputes between him and Thandavaraya. Nataraja gives evidence himself as defendant's 13th witness. He was in a somewhat difficult position because he could not admit that his claim was false and at the same time he had to try and to minimise the circumstances attending the arrangement. What he does is to throw the whole blame for the position on the Zamindar of Sivaganga and to deny any knowledge of an attempt to obtain sanction against Thandavaraya. He does, however, make one unguarded admission, which is as follows : "My objections to the registration of the will were all founded on facts." By the term "facts", he cannot, of course, mean anything else than that the will was a forgery. That, coupled with his persistence in the witness box in adhering to the story of his own initiation and appointment, gives no room for doubt that if he had not been satisfied with the arrangement made, he would have persisted in his claim to the Pandarasannadhiship in his opposition to the will as a forgery and even possibly in his charge of murder against Thandavaraya. I think it right to say here that there never was the slightest ground for suspicion of murder, but the attack on the will was very serious indeed. We are bound to presume that the Registrars applied their minds to the case, and they had come to a conclusion which placed Thandavaraya in a very difficult position. The will had been found against him in two exhaustive enquiries, in addition to which Nataraja was alleging an appointment in support of which he would doubtless be able to produce some evidence though I agree with the Subordinate Judge in his view that Nataraja's story of appointment is false. Nataraja in his written statement filed in the suit brought by the Zarnindar of Sivaganga referred to above has endeavoured to evade responsibility. In that suit (O.S. No. 53 of 1895 on the file of the Court of the Subordinate Judge of Madura East), the Zamindar of Sivaganga claimed the right of appointment and asked for the removal both of Thandavaraya and Nataraja. Exhibit E 1 is the written statement of Nataraja. He there relies on his appointment as Chinna-pattam and states that he yielded to the instigation of the plaintiff (the Zamindar) and that owing to his own imperfect knowledge of facts he made certain allegations impeaching the will, but that when he understood the real facts and the bad motives of his advisers, namely, the plaintiff and his officers, he rejoined the Mutt which he had left under evil advice and in the position of a disciple was duly appointed Chinna-pattam. It is. to be noted that he says not one word about his own appointment by Arumuga Desikar and admits that he was only a disciple at the time of his appointment by Thandavaraya. These facts and a number of circumstances of less importance have been examined before us by the learned Vakils and the inference sought to be drawn therefrom has been urged at great length and with great force by both sides. In the result I am satisfied that Thandavaraya would not have appointed Nataraja his opponent, as his successor, were it not for his desire to secure himself from further opposition. In my opinion he did not appoint him in the true interests of the Mutt. He consented to an arrangement of an unusual character under which he parted with a considerable portion of his temporal rights with an eye solely to his own security, and under pressure of great danger to himself. 3. It remains to apply the law to this finding on facts. First as to the question of the compromise : admittedly it was one and admittedly the defendant's right to the Pandarasannadhiship owes is birth to that compromise. But is that fact alone sufficient to make the appointment bad? Mr. Krishnaswami Aiyar relies strongly on a decision in Sundarambal Ammal v. Yogavanagurukkal (1914) I.L.R. 38 M. 850 : 26 M.L.J. 315. In that case, as appears from the judgment of Mr. Justice Sadasiva Aiyar, the Court was dealing with a suit in which the claim in dispute was to one-half share of the puja miras of a certain temple. The puja miras involved certain religious duties and the holder was entitled to some emoluments. A compromise was come to, which was found by the learned Judge to amount to an alienation of a portion of a religious office by one of the parties in favour of the other for a pecuniary benefit, and the learned judge refused to allow the compromise on the ground that it was not a lawful agreement on which a decree could be passed. The proposition he lays down is as follows : "There can be no lawful compromise made of a dispute in respect of a religious office, the proper performance of the duties of which concerns not merely the parties to the compromise but principally affects the religious trust itself and the Hindu public for whose benefit the religious trust exists," The chief authority relied on for this proposition was the well-known case arising out of the dispute between the Rajah of Ramnad and certain Shanars, Rajah M. Bhaskara Sethupathi and Irulappa Nadan v. Narayanasamy Gurukkal (1901) 12 M.L.J. 360. I do not think that this latter case supports the wide proposition laid down by the learned judge. The view taken by the judge in that case was that the so-called compromise was a betrayal of rights successfully established in one Court by the person who vindicated them. In another case, Kunhunni alias Kavi Varma Rajah v. Ramasubramania Pattar (1916) 31 M.L.J. 733, the same learned judge in dealing with a compromise with regard to property the subject of a religious trust and not with regard to the office itself, uses language some-what analogous but I do not think that that case helps us much. Reliance is placed on a case in Muhammad Ibrahim Khan v. Ahmad Said Khan (1910) I.L.R. 32 A. 503, but the point decided there was much narrower, viz. that a dispute as to the right of succession to a mutawalliship could not be settled by arbitration so as to oust the jurisdiction of the Court. The Advocate-General contends that the right to compromise matters of dispute arising in religious and charitable trusts does exist and he relies on a decision of the Privy Council in Ramanathan Chetti v. Murugappa Chetti (1906) I.L.R. 29 M. 283 : 16 M.L.J. 285 but what was settled there was however merely an arrangement made by disputing parties for the due execution of the functions belonging to the office in turns or in some settled order and sequence. The case in Giyana Sambandha Pandarasannadhi v. Kandasami Tambiran (1887) I.L.R. 10 M. 375 is more in point, for there a dispute as to right to appoint between the heads of two different Mutts was compromised by an arrangement under which the persons holding office had their title recognised but the next Chinna-pattam was to be selected from the rival Mutt. Another case, Nilakandan v. Pudmanabha (1890) I.L.R. 14 M. 153 is instructive because it went to the Privy Council. In that case disputes arose between certain parties as to the management of a temple in South Malabar which were temporarily set at rest by a compromise in 1845 and again in 1874, but the question was re-agitated 20 years later and it was urged that the compromise was not binding. It is to be noted that although it was attacked on the ground that it created a new right and thereby varied the original trusts of the institution, it was not argued before the Board that the compromise was unlawful as relating to a religious trust vide Nilakandhen Nambudiripad v. Padmanabha Ravi Varma (1894) I.L.R. 18 M. 1 (P.C.). Girijanund Datta Jha v. Sailajanund Datta Jha (1896) I.L.R. 23 Cal. 645 is a decision directly in point, for in that case a suit was brought on a ekrar executed by the priest of am idol for arrears of maintenance and the defence was raised that the agreement was without lawful consideration as it amounted to a bargaining for the public office of high priest of a public shrine. The Court found that the ekrar was entered into in consequence of attempts made both by the plaintiffs and the defendant to obtain the post of high priest on the death of the last holder of the office and that the dispute concerning this succession was settled by that compromise, The cases on the point were elaborately considered by the Court and the conclusion come to was" that there was nothing contrary to public policy in the fact of the settlement of the dispute as to succession by a compromise. And lastly we have two recent decisions of this Court to both of which the learned Chief Justice was a party, in which this question was discussed. They are Arunachellam Chettiar v. Velappa Thambiran (1915) 28 M.L.J. 410 and Thiruvambala Desikar Gnanasambanda Pandaram v. Chinna Pandaram alias Manikkavasaka Desikar (1915) 30 M.L.J. 274. The result of both these cases may be summed in the language of the Chief Justice in Arunachellam Chettiar v. Velappa Thambiran (1915) 28 M.L.J. 410 at page 419 : "The better view appears to be that compromises of suits entered into by trustees of charitable endowments are not necessarily void." And this doctrine would seem to have been applied both in that suit in which no question of title between disputing claimants was involved, as well as in the latter case in Thiruvambala Desika Gnanasambanda Pandaram v. Chinna Pandaram alias Manikkavasaka Desikar (1915) 30 M.L.J. 274 where the right of a Mutathipathi to remove the junior was in question and a compromise decree had been passed recognising the position of the junior. On a consideration of all the authorities, I have come to the conclusion that a trustee of a religious and charitable trust has, in respect of a litigation not affecting the office, the same right of compromise as an ordinary trustee has, and that a compromise even of conflicting claims to an office is not necessarily unlawful or opposed to public policy but must be scrutinized by the Court before which it is pleaded for the purpose of ascertaining whether it is in violation of the trust of the institution, or affects adversely the interests of the religious public. That disposes of the first objection taken by Mr. Krishnaswami Aiyar. 4. The next objection is one which arises on the view of the law which I have just stated. Mr. Krishnaswami Aiyar has urged the broad proposition that where any benefit is reserved by or accrues to a party entitled to make the appointment, the appointment is bad whether it be by compromise or by agreement. He has relied strongly on the analogy of the exercise of the power of appointment by a donee of a power and has quoted a large number of English cases. The Advocate-General, on the contrary, has invited our attention to a number of cases in which a reservation of rights was not held to vitiate the appointment. In my opinion a great deal turns on the question whether the circumstances relied on to impeach the appointment, constitute a motive for the appointment or whether the appointment was made with the intention of securing a benefit. But I do not think it necessary to examine the cases as in my opinion, although the principles applied in these cases may be of some assistance, they have not sufficient bearing to require detailed consideration. The Advocate-General has relied on the principles by which "an adoption agreement made by a Hindu widow under which she acquires a distinct benefit is not illegal and asks us to apply that rule. I think the analogy still more remote and I will not deal with the cases. I would adopt the language of the Chief Justice in 28 M.L.J. 410 at page 418 in respect of this very question of compromise by a Pandarasannadhi. In that case the position of a Pandarasannadhi as regards alienations had been compared to that of a Hindu widow and the learned Chief Justice in delivering the judgment of the Court said as follows : "We agree with the observation of Sadasiva Aiyar, J. in Muthusami Iyer v. Sreemethanithi Swamiyar (1913) 25 M.L.J. 393 that it is dangerous to press these analogies too far." In the case of an incumbent of a religious office whose rights and duties are mainly governed by usage and whose duties extend to a religious public that knows nothing of the arrangements under which he succeeds to the office, I would prefer to confine myself to the very simple test laid down by their Lordships of the Privy Council in Ramalingham Pillai v. Vythilingham (1893) I.LR. 16 Mad. 490. This decision was on an appeal from our own Court and the question to be determined was whether the appellant was the lawful Dharmakartha or trusses of the Rameswaram temple. On the 30th January 1894 the High Court removed one Ramanatha Pandaram from his office and on the same day he appointed the appellant as his successor purporting to make the appointment on a consideration of the fact that the appellant was a man of learning and of good character. The appointment was held to be bad, because Ramanatha Pandaram had already been removed and had therefore no power to appoint. But their Lordships further observed as follows : "Another objection to the appointment of the appellant is that both Courts have found that it was not made bond fide... The Judges of the High Court, Referring to the proved facts, say; - 'With these facts before us, we cannot say that the Subordinate Judge was not warranted in finding that the appellant's appointment was made by the former Pandaram in furtherance of his own interests and that it was not a bona fide exercise of his power, if any. This finding of both Courts invalidates the whole appointment. It applies to the headship of the Mutt as well as the office of the Dharznakartha". In my opinion we have but to apply this language. The object in that case was certainly more grossly apparent than in this case, because the Pandaram had arranged for a personal allowance to himself after his dismissal, but the principle laid down by the Board seems to me to be of general application. On the conclusion that I have arrived at on the facts, viz., that the appointment was not made with the intention of benefiting the institution but really to protect his own position which was in serious danger, I am of opinion that it is one which could not be upheld if attacked in the proper manner and at the proper time. 5. It remains now to consider certain objections raised by the Advocate-General to our exercise of the power of removing the defendant. The first objection is one of limitation. He contends that the Pandarasannadhiship to which the defendant succeeded in March 1902 was only the taking up of an office which necessarily vested in possession and that the right to succeed to it became vested in 1894; more than six years before the suit. In my opinion this contention cannot succeed. It is admitted that according to the usage of the Mutt, a Chinna-pattam can be removed for misconduct and so his right of succession is not absolute. Further the position of Chinna-pattam is one of greatly inferior sanctity and importance and it might well be that the persons interested would consent to his holding that office, although they were not willing to allow him to become Pandarasannadhi. I am therefore of opinion on the application of Article 120 of the Indian Limitation Act that the right to sue to remove him from the office of Pandarasannadhi vested in persons entitled to sue on the occasion of his taking that office, although the right to sue to remove him from the office of Chinna-pattam vested at the time of the appointment to that office. In this view I do not think it necessary to consider whether the right arises only on the sanction by the Advocate-General. 6. The next objection raised on behalf of the defendant is that by efflux of time the irregularity of the appointment is cured, and a number of English cases were brought to our notice. In my opinion, this is not a case of irregularity of appointment. It might be that if the qualification of a person appointed fell little short of those required by the usage and the appointment was otherwise unobjectionable and was made in the interests of the institution, the Court would not interfere. But here we have an appointment not made in the interests of the institution and the case is entirely different from those in which the appointment of a minister of religion not belonging to the particular sect of the founder, was upheld after it had existed for a considerable time. 7. I will now deal with two objections raised by the Advocate-General on procedure which, he claims, stand in the way of our giving effect to the view we take of the agreement and appointment. The first is that there was no issue raised in either of these suits as to the validity of the appointment. That is in fact so. But the allegation of invalidity was distinctly made in both plaints (vide paragraph 13) and pleaded to in paragraph 19 and further the validity of the subsequent cancellation of the appointment was alleged in the plaint and denied in the written statement in paragraphs 13 and 20 respectively and an issue was foamed on this. (Issue 16). When these suits came on for trial they were heard with another suit, Original Suit No. 19 of 1912, which had been filed some years later. This suit was by a person who claimed the office by virtue of appointment by the Tambirans. The pleadings in that suit are not before us but the issues are and one of them (No. 4) is "whether the appointment of the defendant made by the late Thandavaraya was made mala fide and to serve his own purpose and therefore invalid." The whole of the evidence relating to the three suits was recorded by consent of parties in Original Suit No. 17, that is, Appeal No. 317 (vide Judgment of Lower Court, page 52), and the Judge finds on the question of the validity of the appointment on issues 1 and 2 in the suits before us and on issues 3 to 5 in the other suit. I am satisfied that the matter was treated as in issue in the present suits and that the non-existence of a specific issue at the trial was not considered of any importance there being the issue in the other suit. At the worst, it would only be necessary for us to frame the issue formally in these suits and that can, if necessary, be deemed to be done. 8. The next objection is more serious. It is contended that the Court has no power to remove the defendant in the present suits which are brought under Section 92 with the consent of the Advocate-General. The learned Chief Justice has dealt with the history of these suits and I entirely agree with him in holding that it is not open to us to reconsider a decision already given in Appeal No. 317 of 1913. That decision is part of the Judgment in this appeal and can only be questioned on appeal to the Privy Council. To the extent, therefore, of the relief claimed in Appeal No. 317 of 1913 to remove the defendant from the headship of the Mutt, the matter is already decided and the suit fails. I entirely agree however with the learned Chief Justice that as to the second relief in Appeal No. 317 of 1913 and the whole of the matter in issue in Appeal No. 318 of 1913, we are not prevented by the first decision or the above view from giving effect to our finding. It is our duty to remove the trustee whose appointment is bad and in my opinion the fact that the trusteeship vests ex-officio in the holder of an office which we cannot touch in this suit makes no difference whatsoever. The decrees will be as stated in the Judgment of the learned Chief Justice. Madras High Court Gurusami Pandiyan vs Sendattikalai Pandia Chinna ... on 12 March, 1920 Equivalent citations: (1921) ILR 44 Mad 1 Author: J Wallis Bench: J Wallis, Krishnan JUDGMENT John Wallis, C.J. 1. This is an appeal from the judgment of the Subordinate Judge of Tuticorin in two suits which were tried together. In the first suit the plaintiff sued to recover the impartible estate of Sivagiri from the mother of the late zamindar who died unmarried in 1914, while in the second suit the plaintiff sued for a declaration that he was entitled to succeed as nearest reversioner on the death of the late zamindar's mother. She died in 1918 while the suit was pending, and he was then brought on as the second defendant in the first suit and will be so referred to. The istimrar or grantee of the permanent sanad died in 1819, and was succeeded by his daughter Virammal who died in 1835. She left two sons, Peria Dorai who succeeded her and was the grandfather of the late zamindar, and Chinna Dorai who had two sons, the elder commonly known as Periaswami who was the father of the plaintiff, and the younger, commonly known as Chinnaswami, who was the father of the second defendant, Chinnaswami and his family resided at Veppangulam, a village some twenty miles distant from Sivagiri, in a house which appears to have belonged to his father. Later, in 1843, he received a grant of lands and money in lieu of maintenance, and he and his family were allowed to occupy certain pannai or home farm lands belonging to the zamindari at a favourable rent, and also received occasional allowances for the performance of the usual ceremonies in connexion with births, deaths and marriages. 2. The late zamindar's mother, as first defendant in the main suit, did not rely solely on her title as preferential heir to the plaintiff, but also questioned his legitimacy, and put him to the proof that his father Periaswami was senior to the second defendant's father Chinnaswami, and also alleged that the plaintiff himself was younger than the second defendant. 3. The indication of seniority in the use of the names Periaswami and Chinnaswami is as clear as if one brother had been known as major and the other as minor, and the contention that Chinnaswami was the senior, which was the subject of the first issue, was withdrawn in the course of the trial. It is characteristic, however, of the unscrupulous manner in which the defence was conducted that the second defendant, who had admitted in his own plaint that his father Chinnaswami was junior to Periaswami, subsequently obtained leave to amend his plaint by alleging that his father was senior, and that he did not withdraw this contention until 1st August 1918, as stated by the Subordinate Judge in his judgment, after twenty-five of his witnesses had been examined. Allegations of illegitimacy have been almost in-variably made in suits as to the succession to zamindaris in Tinnevelly and the adjoining districts. In the present case they have been rightly rejected by the Subordinate Judge as baseless. Periaswami, the plaintiff's father, had no other wife but the plaintiff's mother, who was a lady of equal rank with his own, lived with him as his wife for some thirty-five years until his death, and bore him nine children. The case for the defence, which was not fully disclosed until a late stage of the trial, was that the plaintiff's mother was the wife of one Vythilinga of Venganallur village and left him shortly after the marriage to live with Periaswami; and a large number of defence witnesses have come forward to speak to this. The Subordinate Judge has rightly commented on the way in which this part of the case was put forward. 4. The first defendant only pleaded that the plaintiff's mother was not the lawfully wedded wife of Periaswami, though some underling about the same time stated in an affidavit that the union was adulterous. The second defendant was equally vague. 5. [His Lordship discussed the evidence and, continued:] 6. The appellant's case as to this part of the case is really hopeless, and the main issue of fact argued before us was as to whether the plaintiff had proved that he was older than the second defendant, as the Subordinate Judge has found. If the finding be correct, the plaintiff is entitled to succeed as the preferential heir in any view as to the line of succession to the zamindari. 7. [His Lordship discussed the evidence as to whether plaintiff was older than second defendant and continued:] 8. On the whole, I am clearly of opinion that there is no sufficient reason for differing from the finding of the Subordinate Judge, that the plaintiff is proved to be the older of the two. 9. These findings are admittedly conclusive as to the plaintiff's present right to the zamindari, but the question whether he is entitled to the income of the estate as from the death of the late zamindar until the death of his mother some two years later, during which period the estate was in the hands of a Receiver appointed in this suit, depends upon the question, whether on the death of the late zamindar without male descendants the zamindari devolved upon the plaintiff on the ground that the late zamindar and the plaintiff were members of a joint Hindu family in which the plaintiff was the preferential heir, or devolved in the first instance upon the late zamindar's mother on the ground that, as the late zamindar at the time of his death was divided from the plaintiff's family, she was entitled to succeed as next heir to his separate property. In that case, the plaintiff could only claim to succeed on the mother's death as next heir to the separate property of the zamindar. 10. If the late zamindar was undivided from the plaintiff's family, then for the purposes of succession the estate must be treated as if it had been partible; and, as on a partition the plaintiff and his brothers would have represented their deceased father and taken his share, they must also be considered to represent him for the purposes of succession to the impartible zamindari, so as to entitle the plaintiff as the eldest among them to succeed to the zamindari to which their father would have succeeded, if he had survived the late zamindar. This law of succession, which may have had its origin in the theory of dormant coparcenary on the part of the other members of the family, is not affected by the decisions of the Privy Council, beginning with Sartaj Kuari v. Deoraj Kuari (1888) I.L.R., 10 All., 272 (P.C.), and ending with the recent decision of Rama Rao v. Rajah of Pittapur (1918) I.L.R., 41 Mad., 778 (P.C.), that the right of the other members of the family to maintenance must be rested entirely upon custom and was applied by the Privy Council in the very recent case of Tara, Kumari v. Chaturbhuj Narayan Singh (1915) I.L.R., 42 Calc., 1179 (P.C.). 11. That, in ray opinion is a very important decision for our guidance, because it lays down, that in determining which line of succession to follow, the test is whether the last owner who left no male issue was or was not separated from the other members of the family, and expressly negatives the contention that, to let in the rule of succession as to separate estates, there must have been something in the nature of a partition of the impartible estate, or of an abandonment express or implied of the right to succeed to it as joint family property. As regards the first point, their Lordships observed that the claimants had no co-parcenary rights in the impartible estate, and no rights in that estate which entitled them to a partition of the impartible estate. As regards the second point, the result of the decision in my opinion is that the particular line of succession is incident to the status of the family, and depends entirely on whether the family is joint or has become separated. The earlier cases relied on for the respondent must be held to be merely applications of the rule laid down in this last case to the particular facts of those cases; and all we have to do is to decide whether the late zamindar at the time of his death was joint with or separated from the plaintiff's family. In this view of the law I cannot agree with the statement of the learned Subordinate Judge at the end of paragraph 134 of his judgment that it is not shown that "assuming that Periadorai and Chinnadorai had a co-parcenary interest in the zamindari there was at any time a partition in respect of it between them." I think it must be taken that Chinnadorai never had any coparcenary interest in the zamindari, and that all we have to decide is whether Periadorai's branch, to which the late zamindar belonged, was divided at the time of his death from Chinnadorai's branch. 12. When, in 1835, Periadorai on the death of his mother succeeded to the zamindari, as the heir of his maternal grandfather, the istimrar zamindar, ha was joint with his father and his brother Chinnadorai; and, as, if the zamindari had been partible, the two brothers would have taken it as ancestral property with rights of survivorship, as decided in the Juggempet case, Venkayyamma Garu y. Venkataramanayyamma Bahadur Garu (1902) I.L.R., 25 Mad., 678 (P.C.), I see no reason why Chinnadorai should not be considered for the purposes of succession to the zamindari to have been joint with Periadorai. Here I may say that I agree with the learned Subordinate Judge, for the reasons given by him, in rejecting the contention that Periadorai took the zamindari as his separate property under the alleged will put forward by the defendants and that his mother was only given the right to manage. The official correspondence on the istimrar's death in 1819 refers to a will, but it is fairly clear from the correspondence and from the fact that the daughter was recognized as owning the zamindari in her own right that it was not the will put forward by the defence with the view of showing that the zamindari was the self-acquisition of Periadorai and so descendible as his separate property. 13. In the year 1843, when Periadorai was old enough to be given possession of the estate which had been managed by his father, disputes arose and were adjusted by an agreement. The Subordinate Judge has rejected the alleged agreement put forward for the defendants, Exhibit 44(a), and it is unnecessary to rely on it, as the terms of the agreement may be sufficiently gathered from the allegations and admissions of either side, which are recited in Exhibits O and O1, the judgment in the suit instituted by Chinnadorai for partition of the zamindari in 1848. The judgment of the first Court states that the plaintiff Chinnadorai admitted that in 1843 he had accepted an allowance from the zamindar in lieu of all claims. In his grounds of appeal, in Exhibit O1, Chinnadorai stated it was unlikely he would have remained satisfied with land amounting to 30 sangalies and 30 cottavarapadee yielding yearly revenue of only Rs. 200. To this the respondent replied that the evidence in the suit showed that the lands allotted to the defendant for his support were capable of yielding yearly Rs. 1,500, and that additional property valued at Rs. 21,300 hud been given him. The fact that Chinnadorai renounced all claims to the zamindari would not of course include a renunciation of his right to succeed as heir according to the law of succession to joint family property, if the family was undivided when the succession opened. After 1843 Chinnadorai and his father and family went to live at Veppangulam about 20 miles from Sivagiri in a family house, or palace as it is styled, which is said to have been the property of the father. Then came the unsuccessful suit of 1848 for partition of the zamindari. It has been contended before us that the effect of filing this suit was necessarily to effect a division in status between Chinnadorai and his brother Periadorai. In view of some of the earlier cases cited I do not propose to rely on this suit as evidence of division, especially as there is other evidence sufficient to establish it. The lands allotted to him were sold by him and his sons in course of time; and in 1871 when Periadorai had involved himself in difficulties and the zamindari was in the hands of a receiver who was seeking to raise money by the sale of the pannai or home-farm lands, it was reported that Chinnadorai and his family were in the possession of some of these pannai lands as tenants at a favourable rent, and this arrangement was not disturbed. After Chinnadorai's death at the close of 1871 his sons were left in possession of these lands; and during the minority of the late zamindar, as the rent paid by them was in arrears, the Court of Wards decided to sue them for possession and arrears and a plaint was drawn up, Exhibit I, but was not filed. Again on the death of Periasami in 1899 the plaintiff and his brother were similarly left in possession of the lands then in their occupation. Their possession, however, was that of tenants, and was exactly the same as that of their sister Virammal and her family to whom also pannai lands were let on favourable terms. From Periadorai's death until the birth of the late zamindar in 1889 Chinnadorai's family were the next reversioners to the zamindari, a position they again occupied from his succession till his death. They were also very near relations whose claims on his bounty were great. The numerous petitions which they presented to the zamindar for assistance on the occasion of family ceremonies sought his assistance as a matter of grace, and were similar in terms to those presented by other persons, such as their sister Virammal and by mere strangers in whom the zamindar took an interest. In my opinion, the facts that Chinnadorai's family were allowed to occupy pannai lands as tenants and were assisted on the occasion of family ceremonies by the zamindar are entitled to very little weight as evidence that they continued joint in estate with him. In Southern India the test whether the two branches continued joint in worship is inapplicable. On the other hand, the fact that the two branches lived separately, though ordinarily inconclusive, is in my opinion entitled to considerable weight, when the separate living had been going on for seventy years before suit and the existence of joint property at the end of the period is not shown. Exhibit A series, and the other documents referred to in paragraph 126 of the Subordinate Judge's judgment, show that between 1872 and 1897 Periasami and Chinnasami freely alienated their properties without any reference to the zamindar. Exhibit F, which is a petition by Periasami to the Collector, dated. 17th April 1872, alleged that the Veppangulam house had belonged to his father Chinnadorai and that he and his father had been enjoying it for nearly thirty years without dispute and complained that Periadorai was attempting to interfere with his enjoyment, and also with his endeavours to sell his father's lands in satisfaction of his debts. This is opposed to the theory that he and the zamindar were then joint in estate. On the other hand, the fact that Periadorai, who had alienated all his estate and was then living on an allowance from the Court of Rs. 100, tried to assert a claim to the Veppangulam house is of very little weight in view of his desperate circumstances. Exhibit MMMI is open to the same observation, and the fact that Periadorai had included the house in a mortgage of 1854, Exhibit MMM, throws very little light on the state of the family in 1914. He died in 1873 and his son, who succeeded in recovering the zamindari from the alienees, seems to have raised no objection to Periasami and his family dealing freely with their properties by the alienations in Exhibit A and other series. Exhibit XXVII shows that the Veppangulam house, or Periasami's share in it, was sold in a suit on a mortgage executed by him and purchased on 22nd June 1877 for Rs. 251 by one Muthusubba Ayyar, who appears from Exhibit FFF to have been a benamidar for the zamindar. That is a petition complaining that the zamindar's servants had been resisted by Periasami in taking possession, on the ground that delivery had not been given by the Court. Probably the zamindar did not really want to evict his cousins and had only purchased the property to prevent its getting into the hands of strangers. There does not seem to have been any allegation by the zamindar on that occasion that it was not the separate property of Periasami, the mortgagor. Also, as stated by the Subordinate Judge in paragraph 30 of his judgment, Chinnasami afterwards filed a suit against the benami purchaser and Periasami for a half share of the Veppangulam house and succeeded. The decree, Exhibit XXVII(d), states that the suit was brought to recover the scheduled properties which fell to the share of the plaintiff and are being enjoyed by him, and the decree exempted specific portions of the property from the sale apparently as property which had already fallen to the plaintiff on partition. Further, the mortgages and sale-deeds executed by Periasami after his father's death which are found in Exhibit IV series, such as Exhibit IV(p) and IV(q) and others, point to a division by metes and bounds having taken place between Periasami and Chinnasami after their father's death. This is, in my opinion, very strong evidence that they had already become separated in estate from the senior branch. I think the transactions already referred to, and the other transactions mentioned in paragraphs 126 to 128 of the Subordinate Judge's judgment, are sufficient to show that the two branches were separate in status in 1914. In my opinion, the branch of the late zamindar at the time of his death was divided in status from the plaintiff's branch of the family, consequently the zamindari devolved, according to the rule of inheritance applicable under the Mitakshara law to separate property, on his mother. As she left no female issue, the question whether the accumulations should be regarded, as her stridhanam is immaterial, as, even if so, they would devolve on her husband's heirs. 14. Assuming the law of succession to separate property to apply, the finding that the plaintiff is both the representative of the senior branch of his family and the eldest of those who are equal in descent with himself from the common ancestor is sufficient, in my view, to establish his title to succeed on the death of the late zamindar's mother, In the case of succession to separate property the ordinary rule, that to the nearest in blood the heritage belongs, entitles the nearest in descent of whatever branch to succeed in preference to the other claimants. Achal Ram v. Udai Partab Addiya Dat Singh (1884) I L.R., 10 Calc., 511 (P.C.), a decision of the Privy Council, is an application of the same rule. This rule, however, affords no assistance where, as here, the rival claimants are equal in descent. In that event, the Privy Council has decided in Bhai Narindar Bahadar Singh v. Achal Ram (1893) I.L.R., 20 Calc., 649 (P.C.), which relates to the same impartible estate as the case just cited, that the person entitled to succeed as preferential heir is the representative of the senior branch. The facts which gave rise to these two decisions may be briefly summarised. Under the Oudh Estates Act, 1 of 1869, one Prithi Pal had been entered in the first and second of the lists prepared under Section 8 as a talukdar under the Act, whose estates according to the custom of the family and before the 13th February 1856 (the date of the Mutiny) ordinarily devolved on a single heir. It was provided by Section 22 that such estates should be descendible in the line of succession prescribed in Sub-sections (1) to (10) of Section 22, and in default thereof under Sub-section (11). to such persons as would be entitled to succeed to the estate under the ordinary law to which persons of the religion and tribe of such talukdar or grantee, heir or legatee are subject. 15. Prithi Pal was succeeded by his widow, who died in 1870. The estate was then enjoyed by his daughter and her husband Achal Ram. After the daughter's death in 1870, Achal Ram retained possession, and was first sued by Udai Partab who was the representative of the senior line but seventh in descent from the common ancestor. He was nonsuited by the judgment of the Privy Council in Achal Ram v. Udai Partab Adaiya Dat Singh (1884) I.L.R., 10 Calc., 511 (P.C.), on the ground that, though the estate was recognized in accordance with previous family custom as impartible or descendible to a single heir, the single heir must be determined in the circumstances with reference to the rule of Mitakshara as to the succession to separate property. If the succession opened at the death of the widow in 1870 Harbaghat, who was fifth in descent from the common ancestor, was then living, and was the next heir; while, if it opened at the death of the daughter in 1870, there were then living Harbaghat's sons and other collaterals who were sixth in descent, and so nearer than the plaintiff. That case having decided that the succession was to the nearest in blood though belonging to a junior branch, Harbaghat's son Narindar sued to recover the estate, and contended unsuccessfully that the succession opened in 1860 on the death of the widow, when his father Harbaghat was the nearest heir; but it was held by the Privy Council that it opened on the death of the daughter in 1870, that then, nearest collaterals included Harbaghat's son, the plaintiff, and his cousin Jubrag, who were both sixth in descent from the ancestor. As between them the Privy Council held that the estate would go to Jubrag, as he came of a branch senior to the plaintiff's branch. It no doubt may have been, and probably was, the case that Jubrag, the other collateral, not only came of the senior branch but was also older than the plaintiff. That consideration however was treated as immaterial The Act left the succession to the impartible estate in the event which happened to be governed by the ordinary law which included the custom of the family. As this custom did not include the rule of lineal primogeniture the ordinary Mitakshara law of succession to separate property would appear to have been applied; and according to this law, as between collaterals equal in degree, the representative of the senior branch was held to be the preferential heir. It was no doubt suggested by Muttusami Ayyar, J., in Muttu Vaduganatha Tevar v. Dora Singha Tevar (1881) I.L.R., 3 Mad., 290 (P.C.) at 323 and 327, that in such a case the eldest among the heirs of equal degree should be preferred on the ground that he would have a preferential right as regards ceremonies and also to the position of manager if the property had been joint. I agree, however, with the learned Subordinate Judge that, so far as this Court is concerned, the question must be regarded as settled by superior authority. I may add that in my opinion this rule is also superior in convenience, as, having regard to the conditions which prevail here, it is much easier to ascertain who is the senior representative of the senior branch than to ascertain which of a number of collaterals of equal degree was born first. 16. The only other question argued before us was as to which of the properties acquired by the fourth and fifth zamindars should be considered to have been incorporated in the zamindari and to pass with it to a single heir. The recent decision of Rajindra, Bahadur Singh v. Raghubans Kunwar (1918) I.L.R., 40 All., 470 (P.C.) has been cited as deciding that a zamindar cannot incorporate any property in an impartible zamindari, but we think it is not authority for so extreme a proposition. The Crown, in that case, in the exercise of a right now recognized in the Crown Grants Act, had made the estate descendible in a particular manner, and it was held that the holder could not make the same rule applicable to properties acquired by him. As regards estates of persons governed by the Mitakshara law, where estates are by family custom impartible or descendible to a single heir, it has been repeatedly held that it is open to the owner, if so minded, to incorporate his self acquisitions in the impartible zamindari, and this is expressly state in Murtaza Husain Khan v. Muhammad Yasin Ali Khan (1916) I.L.R., 38 All., 552 (P.C.), which was decided not very long before the case already cited. I think we must overrule this contention. As to the properties which should be held to be incorporated in the zamindari, I agree with the judgment of my learned brother and with the order proposed by him in both appeals. Appeal No. 324 of 1918. Krishnan, J. 17. This is an appeal from the decree of the Subordinate Judge of Tuticorin in Original Suit No. 27 of 1914, brought by the plaintiff, Sendatti Kalai Pandya Chinnathambiyar, claiming for himself the zamindari of Sivagiri, which is an ancient impartible estate in the District of Tinnevelly included in the Schedule to the Madras Impartible Estates Act, II of 1904. The suit was originally brought against Rani Gnanamani Nachiar, the mother of the last zamindar Ramalinga, who took possession of the zamindari on his death. But as she died on 23rd November 1916, when. the suit was pending in the lower Court, it became unnecessary to decide who the preferential heir to the zamindari was as between her and the plaintiff to settle the claim to the zamindari. On her death the dispute about the succession to the zamindari became one between the plaintiff and Gurusami Pandyan who was added to the record of this suit as the second defendant. He has already brought a suit himself, Original Suit No. 48 of 1914, in the same Court, admitting the right of the Rani and claiming to be next reversioner entitled to succeed to the zamindari on her death. The two suits were tried together by consent of parties, and appeal from the decree in the second suit is also before us as Appeal No. 325 of 1918. The first and main question for our decision in this appeal is whether the plaintiff or the second defendant is the man entitled to succeed to the zamindari now. 18. The pedigree of the family attached to the plaint is accepted as correct before us, except as regards the ages of certain persons mentioned in it. It may however be noted as a correction that Nos. 35 and 36 were the wives of No. 25 and not his daughters, As stated in this pedigree, Ramalinga (No. 39), was the fifth and last zamindar. He died in Madras in 1914, leaving no issue and no male heirs in his own line, and it is to him that succession has now to be traced. He was the son of Sangili Veerappa, the fourth zamindar (No. 25), who was himself the son of Varaguna Rama Pandya, the third zamindar (No. 13), who was ordinarily known as Periyadorai and who will be referred to hereafter by that name. He had a younger brother, also a Varagunna Rama Pandya, but known ordinarily as Chinnadorai, under which name he will hereafter be referred to. Ho had two sons, Sendatti Kalai Pandyan (No. 26), ordinarily known as Periyasami, and Varagunna Rama Sendatti Kalia (No. 28), ordinarily known as Chinnasami, besides a daughter Veerammal Nachiar (No. 27). Plaintiff (No. 42) is admittedly the eldest son of Periyasami, and the second defendant (No. 50) is the eldest son of Chinnasami. It will be seen therefore that as grandchildren of Ramalinga's grandfather's brother, they stand in the same degree of relationship or agnateship to the last zamindar. But as only one man can succeed to this impartible zamindari, we have to decide who the preferential heir of the two is. The plaintiff contends that he is to be preferred, because he belongs to the senior line, his father being older than second defendant's father, and furthermore that as between himself and the second defendant he is also the senior in age. The second defendant admitted that plaintiff's father was senior to his father, though at one stage of the case he disputed it; but he contended that the plaintiff was an illegitimate son of his father, being born of an adulterous connexion between his parents and as such he was not entitled to succeed at all, and also that even if plaintiff were a legitimate son of his father, he, the second defendant, was the senior in age to him and that seniority in age and not seniority of the line was the deciding factor in the choice of the heir to the zamindari in the circumstances of this case. 19. On these pleas, the first question we have to settle is the question of fact whether the plaintiff is the legitimate son of his father or the illegitimate offspring of an adulterous connexion as alleged against him. The Subordinate Judge has discussed the question at great length in a carefully considered judgment, and I entirely agree with him that the finding must be in favour of legitimacy. 20. [His Lordship discussed the evidence and proceeded:] 21. Accepting the plaintiff's evidence on the point before us as more reliable I concur with the Subordinate Judge in finding that the plaintiff is the legitimate son of his father. 22. Taking that finding, it follows that plaintiff and second defendant are persons who stand in an equal degree of relationship to the last zamindar from whom descent has now to be traced for the zamindari. It was laid down by their Lordships of the Privy Council, so early as in the Shivagunga case, Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A., 543, that in the case of impartible estates, in the absence of a special custom governing the succession to it, the rule of succession must be taken to be that of the ordinary Hindu Law by which the parties are governed, with such modifications only as flow from the impartible character of the estate. This rule was followed in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (1872) 14 M.I.A., 570, and has been accepted ever since. There is no special custom alleged in the present case, and we have thus to turn to the Mitakshara Law by which the parties are governed for the rule of succession. Under that law there is a different line of succession for ancestral property, and for separate or self-acquired property, and accordingly the same difference must arise with regard to succession to impartible estates also. To apply the rules of succession to impartible property one must treat it for a moment as ordinary partible property and see to whom it would pass as such. If it passes to a single individual he or she would be the person entitled to the zamindari. But if it passed to two or more as equally entitled to it, further rules have to be applied to determine which one of them should be selected as the zamindar, as only one person can be the zamindar at a time. If the zamindari is property in which the right of survivorship subsists it would pass like ordinary joint family property by the rule of survivorship, and when there are more persons than one coming within that rule it will, as was held in Naraganti Achammagaru v. Venkatachalapati Nayanivaru (1905) I.L.R., 28 Mad., 508 (P.C.), pass to the nearest co-parcener of the senior line and not to the co-parcener nearest in blood to the propositus. This view was approved of by the Privy Council in the Udayarpalayam Case (1882) I.L.R., 4 Mad., 250, and must be treated as settled. The rule is based on the recognized principle of representation of the father on his death by his sons in taking joint family property. If this rule of succession by survivorship applied to the present case, it is conceded that the plaintiff would be the preferential heir as the eldest son of Periasami whose line is the senior line. In fact he would have excluded the Rani also. At the early stages of this case both the Rani and the second defendant had denied the seniority of Periasami to Chinnasami and the first issue was framed on that plea. But the contention was subsequently given up by the second defendant and the seniority of Periasamr's line was admitted. 23. If on the other hand the zamindari is taken to be the separate property of the last zamindar, as I find later in this judgment, the Mitakshara rule of succession to separate or self-acquired property will apply, and on the death of the last zamindar the Rani would take the estate first, as his mother, there being no nearer heirs, and on her death it must pass to this zamindar's nearest reversioners under the rule that the nearest in blood excludes the more remote. But as both plaintiff and second defendant fall in the category of nearest in blood a further rule has to be applied to choose between them. Plaintiff contends that that rule is the rule of seniority of line, whereas the second defendant maintains that the seniority of age is the proper rule for it. 24. Before however deciding this question, it will be convenient to consider whether the plaintiff or the second defendant is in fact the senior in age, for each claims to be senior to the other. The Subordinate Judge has held that plaintiff is the senior, and I am on the whole inclined to agree with him though the evidence is not so full and satisfactory on this point as on the first question dealt with. 25. [His Lordship discussed the evidence and proceeded:] 26. In these circumstances, I am inclined to think that the Subordinate Judge's finding is right that plaintiff is the senior in age to the defendant and I accept it. On this finding, plaintiff must be held to be the proper heir now to the zamindari in preference to the second defendant, whether the rule of seniority of line or of seniority of age be applied. 27. I may here observe that it was argued by the plaintiff's vakil that even if his client was not the senior in age, and even if we take the zamindari to have been the separate property of the last zamindar, his client would still be entitled to succeed as the representative of the senior line. In other words, he contended that the rule of seniority of line applied where there were two or more reversioners of different lines but of equal degree of relationship to the last holder of the impartible estate, from whom descent has to be traced, competing for the zamindari. He has relied for this contention on the ruling of the Privy Council in Bhai Narindar Bahadur Singh v. Achal Ram (1893) I.L.R., 20 Calc., 649 (P.C.), and that case clearly supports him. Though the impartible estate in that case was one to which the Oudh Estates Act applied, the successor to the last holder had to be found according to Clause (11) of Section 22 of that Act and not according to any of the previous clauses, and under that cause the ordinary Hindu Law of collateral succession had to be applied. Lord Hobhouse who delivered the judgment of the Board says: It may be, and it has so happened in this case, that the heir according to lineal primogeniture is more remote in degree from the ancestor than other collaterals, or other persons in the line of heirship. If so, the degree prevails over the line according to the classification under the Act; though if two collaterals, or persons in the line of heirship, are equal in degree, then, as the property can only go to one, recourse must be had to the seniority of line to find out which that one is. His Lordship again says: But Jubraj comes of a branch senior to the branch of the plaintiff; and therefore if the estate can only go to one, it will go to that one who represents the senior branch. 28. The pedigree of the family is given in Achal Ram v. Udai Partab Addiya Dat Singh (1884) I.L.R., 10 Calc., 511 (P.C.), and that case read with Bhai Narindar Bahadur Singh v. Achal Ram (1893) I.L.R., 20 Calc., 619 (P.C.), shows clearly that in a case of collateral succession though the rule of seniority of line is not applicable in the first instance but the ordinary Mitakshara rule of nearness in blood applies, the former rule applies for the choice of one from among those equal in degree. The ruling in Bhai Narindar Bahadur Singh v. Achal Ram (1893) I.L.R., 20 Calc., 619 (P.C.), thus seems to cover the exact position in the case that we are considering, and following it the plaintiff should be declared to be the preferential heir, irrespective of any question of seniority in age even if the succession is a collateral one. The learned vakil for the appellant tried to distinguish this case from the present case, on the ground that it was decided on some question of custom or on some admission of the plaintiff that Jubraj was the preferential heir if the succession was held to open only on the daughter's death. But there does not seem to be any basis in the judgment of their Lordships for these contentions, nor does it appear that their Lordships were deducing the rule from anything in the Act or from anything peculiar to the estate in suit. He also drew our attention to the judgment of Muttuswami Ayyar, J., in Muttu, Vaduganadha Tevar v. Dora Singha Tevar (1881) I.L.R., 3 Mad., 290 (P.C.), and particularly to the learned Judge's observations on page 327. But, in that case, the dispute was between daughter's sons of the last male holder and it was as between them that the rule of seniority of age was applied. That case is not in point here, and we are relieved from the necessity of discussing on general principles of Hindu Law what rule of preference should be applied between collaterals of equal degree but of different lines as we have the high authority of the Privy Council to prefer the senior line. In this view, even if the finding that the plaintiff is the senior in age turns out to be incorrect, he must still be held to be the rightful zamindar now, as he is admittedly of the senior line. 29. The next question we have to consider is whether the items of properties, included in issues 16 and 17, claimed by second defendant to be partible property and not part of the zamindari are really so or not. Issue 16 refers to acquisitions said to have been made by Sangili Veerappa, the fourth zamindar, and issue 17 to those of Ramalinga, the fifth and last zamindar, respectively. The Subordinate Judge found some to be zamin properties and the rest to be partible properties, and both sides have appealed against the finding in so far as it is against them, the respondents Nos. 1, 4 and 5 appealing by way of memoranda of objections. 30. Before considering this question in detail, it is necessary to notice an argument advanced by the learned Advocate-General, for the appellant, that it is not legally competent to a zamindar to add new properties to his estate, as he will thereby be changing the line of descent with, reference to them to a single heir, a power which it is contended, he is not possessed of. For this argument reliance was placed on the observations of the Privy Council in Rajindra Bahadur Singh v. Raghubanskunwar (1918) I.L.R., 40 All., 470 (P.C.), at page 480, where their Lordships quote and agree with the opinion of Sir Edward Chamier as Judicial Commissioner of Oudh where he says: I take it that is settled law that a subject cannot make this property descendible in a manner not recognized by the ordinary law and that he cannot subject it to a rule of descent such as is contained in the primogeniture sanad granted to Girwar Singh. If thin is so, it appears to me to follow that Balbbadder Singh could not by express declaration, still less by mere volition, whether actual or presumed, subject property acquired by him to the rule of succession entered in the primogeniture sanad granted to Girwari Singh. 31. That case, it seems to me, has really no bearing on the case before us. It related to a taluk in Oudh claimed under a special grant by the Crown with a condition of lineal primogeniture imposed on it by the Crown at the time of the grant. Though the estate was registered under list 2 of Section 10 of the Oudh Estates Act it did not previously descend according to any family custom of primogeniture. The validity of the grant was considered by the Privy Council in Sheo Singh v. Raghubans Kunwar (1905) I.L.R., 27 All., 631 (P.C.), and it appears clear from that judgment that the Crown was imposing for the first time a now line of descent by lineal primogeniture. An addition to that estate will make the special line of descent apply to it. The circumstances of the present case are however entirely different. We have here an ancient zamindari, which descends according to the ordinary Mitakshara Law with only the modification necessary to select a single heir out of a class of heirs when that contingency arises, also derived from that law. When a zamindar adds further property to his zamin all that he can be said to do is to impose on it a condition of impartibility which he is competent to do. I do not think he can be said to impose thereby a new line of descent on the property different from that of the ordinary law. It is not uncommon for provident zamindars in South India to aggrandise their estate by new additions of property, and the only question to be decided in such cases is to find out whether it was intended by the acquirer to incorporate them with the original estate. That has been laid down in several rulings: see Lakshmipathi v. Kandasami (1893) I.L.R., 16 Mad., 54, Ramaswami Kamaya Naik v. Sundaralingaswami Kamaya Naik (1894) I.L.R., 17 Mad., 422, Parbati Kumari Debi v. Jagadis Chunder Dhabal, (1902) I.L.R., 29 Cal., 433 (P.C.), and Janki Prasad Singh v. Dwarka Prasad Singh (1913) I.L.R., 35 All., 391 (P.C.), the last two being rulings of the Privy Council. In the last case their Lordships expressly say, on page 40: As has been pointed out by this Board in the case of Parbati Kumari Debi v. Jagadis Chunder Dhabal(1902) I.L.R., 29 Cal., 433 (P.C.), the question whether properties acquired by an owner become part of 'the ancestral estate for the purpose of his succession" depends on his intention to incorporate the acquisitions with the original estate. 32. Following those rulings, the legal argument addressed to us on the point must I think be overruled and we must consider on the evidence how far the intention to incorporate is made out with reference to the various disputed properties. 33. With regard to properties included in issue 17 and declared by the Subordinate Judge to be partible, no serious attempt was made before us to dispute the finding as regards properties outside the zamindari. There is no proof that they were incorporated by Ramalinga with the zamin. In fact the power-of-attorney, Exhibit XIV (a), which he executed points the other way as observed by the Subordinate Judge. The finding with reference to them must therefore be accepted. But the finding as to the other items included in issue 16 and items in issue 17 has been strongly contested. 34. The first item which is plaint Schedule III, item I, is the Sivagiri palace itself with its site and attached buildings, where the zamindars have been residing all along. It is in fact the official residence of the zamindar at his headquarters. It was brought to sale in execution of the decree in O.S. No. 1 of 1867 against the then zamindar, and was purchased by a Chetti and was taken possession of by him in 1874. In 1882, Sangili Veera, the next zamindar, bought it back from the Chetti by Exhibit V. He used it till his death for his zamindari palace and his son used it similarly after him. In these circumstances I agree with the Subordinate Judge that the proper inference is that it was made part of the zamin estate. The fact that Exhibit V recites that the vendee is given rights of sale, gift and alienation in the property seems to me to be immaterial, as such a statement would usually be made by the vendor in any conveyance. 35. The next item, Schedule III, item 2, is the Teppakulam (or tank) and the adjacent buildings. They seem to stand on the same footing as the palace, as the Subordinate Judge remarks: they are near the palace and were used by the zamindars and were never let out. They were purchased under Exhibits 12(a) and 12(b) in 1877 for Rs. 38-14-0 and Rs. 18. Being neighbouring properties which have not been separately enjoyed, they may, I think, be reasonably treated as appurtenant to the palace itself. 36. The third item, plaint Schedule III, item 40, is a bungalow in Courtallam, a neighbouring hill sanitarium. It was purchased in 1877, under Exhibit XII (h). It is altogether outside the zamin limits. There is nothing in the sale-deed to indicate that it was intended to be used as a hill residence of the zamindar for the time being, and there is no evidence that it was generally or exclusively used by the zamindar; in fact it was let to a stranger, when the Court of Wards was in management. There does not seem to be any point of difference between this property and the bungalows purchased by the fifth zamindar in Courtallam and in Ootacamund, another hill station, except that it was purchased by the father, Sangili. We have held the latter to be partible property and I think we must consistently hold the former also to be property of the same kind. 37. The next items, plaint Schedule III, items 42, 44 and 45, are a bungalow in Sankaranainarkoil and another in Srivilliputtur with another small building there. These are the headquarter stations of the two taluks in which the zamindar's property lies, and the zamindar and his officials have been using them when going to transact zamindari business, as they have often to do. They have not been let out or used for any other purpose. In these circumstances, I am inclined to agree with the Subordinate Judge that though these properties are outside the zamindari limits, they should nevertheless be hold to have been acquired for zamin purposes and made part of the zamin estate for its use. 38. The next items are items 43, 47 and 48 of plaint Schedule III. They are all outside the zamin boundaries. The burden is therefore on the plaintiff to show that they were incorporated with the zamindari. There is no evidence when they were acquired, and in the case of items 43 and 47 there is nothing to show that they were incorporated into the zamindari or used for zamin purposes. As regards item 48, there is, however, Exhibit UU, which seems to show that that item was used for zamin purposes so long ago as 1885. That item, I think, may therefore be reasonably considered to have been incorporated with the zamindari, but not the others, which will therefore be treated as partible property. 39. The next items are items 6, 15, 20, 22 and 30 referred to by the Subordinate Judge in paragraphs 142 and the end of 149 of his judgment. He held them to be impartible properties. They are all within the zamin limits, and being additions to the zamindari property must be hold to have been acquired for the zamindari on the view stated below regarding the next items. 40. The next items are those in plaint Schedule IV(a) to IV(q); they are pannai lands or lands under the cultivation of the zamindar himself. They are of three classes, nanjai lands, and topes or garden lands purchased by the zamindar, and other lands obtained when commuting the rents of some of the estate lands into money. They are all within the zaminari limits and are all properties which were already in the holding of the zamindar or over which the zamindar had melwaram rights. What was subsequently acquired by the zamindar was only the kudivaram rights in them. I agree with the Subordinate Judge that in the absence of clear evidence that they were dealt with as the zamindar's private property they must be held to be part of the zamin. The cases referred to by the Subordinate Judge--Lakshmipathi v. Kandasami (1893) I.L.R., 16 Mad., 54, Ramaswami Kamaya Naik v. Sundaralingaswami Kamaya, Naik (1894) I.L.R., 17 Mad., 422, Sarabjit Partap Bahadur Sahi v. Indarjit Partap Bahadur Sahi (1905) I.L.R., 27 All., 203, Udayarpalayam Case (1903) I.L.R., 28 Mad., 508 (P.C.), and Visvanathaswami Naicker v. Kamalu Ammal (1915) M.W.N.,968--support his conclusion. The properties were zamin properties to start with and the subsequent acquisitions only resulted in an enlargement of the zamin rights in them. As the new rights acquired were not kept separate, they must be taken to have passed as part of the zamindari. It was pointed out that in some of the documents of purchase it is expressly mentioned that the purchase was for the zamindari, and it was argued that we must therefore assume that in cases where such express recitals do not occur the rights purchased were intended to be kept separate as the acquirer's private property. I do not think that it is a valid argument, for even in cases falling in the latter class there are several lands in which the rights obtained by purchase are not claimed to be private property. I therefore agree that all the lands in Schedules IVa to IVq are part of the zamin estate. 41. The next items, those in Schedules Vb to Vg, are ayan patta lands in Government villages belonging to the zamindar. They are ryotwari lands outside the zamin limits and so they could not have been part of the original zamindari. Plaintiff must therefore prove that they were incorporated with the zamindari. There is, it is true, no evidence when they were acquired but that will not justify us in treating them as part of the zamin. I think in the absence of proof they must be regarded as partible properties and not part of the zamindari. Item in Schedule Va was allowed as partible property and it was not argued to be impartible property. 42. It follows then that the Subordinate Judge's finding on this part of the case must be accepted, except as to the house in Courtallam, items 43 and 47, 6, 15, 20, 22 and 30 and the ayan patta lands, which I think should all be included among the partible properties. 43. It may be noticed here that issues 18 to 22 were admittedly not tried in the lower Court as persons other than those who are parties to the suit are interested in them. The title to the properties included in them was left to be settled in a future suit. The decree should accordingly be modified on the point. 44. The next question to be dealt with is whether the award of past profits to the plaintiff from the assets of the first defendant is correct. The amount is large. It is strongly contended that the first defendant was the rightful zamindarni during her lifetime and that therefore she was not bound to account for any profits. If she was the rightful zamindarni the accumulated income of the zamindari during her lifetime, which was collected and paid into Court by the receiver, will be her absolute property; and on her death only a one-sixth share in it, will go to the plaintiff as one of her six heirs. The decision of this question depends on whether the zamindari should be looked upon as the separate property of the last zamindar in which plaintiff had no right of succession by survivorship or whether it was one in which he had such a right. If it is the latter, it is conceded that the plaintiff will be entitled to the whole of the profits as he would have excluded the Rani in the succession, as I have already pointed out. If it is the former, it is equally conceded that plaintiff would be entitled only to a one-sixth share in the money. We have, therefore, to decide in this connexion the question above stated, which it was found to be unnecessary to decide in connexion with the succession to the zamindari itself, as the Rani died during the trial. 45. It was claimed by the respondent's vakil that as Periadorai succeeded to the zamindari as the daughter's son of the Istimrar zamindar (No. 10) in the plaint pedigree, his undivided brother Chinnadorai obtained at the same time a right of succession by survivorship in it, according to the ruling of the Privy Council in the Jaggampet case, Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu (1902) I.L.R, 25 Mad., 678 (P.C.), read with Katama Natchiar v. The Rajah of Shivangunga (1863) 9 M.I.A., p. 543, and that that right has descended to his grandson the plaintiff and is still subsisting. The first answer given by the second defendant to this contention was that Periadorai took the zamindari not as the heir but as the whole legatee under the will of the old zamindar, Exhibit 21, and. thus his brother got no interest in it at all. 46. The Subordinate Judge has held this will to be a spurious document, and I think he is right. 47. [His Lordship discussed the evidence and proceeded:] 48. For these and other reasons stated in great detail by the Subordinate Judge, which I accept, I think that it is quite unsafe to act on Exhibit 21 as a genuine document and that we must leave it out of consideration. 49. The position then is that Periadorai succeeded to his maternal grandfather's estate as his daughter's son. If it were partible property we are bound to hold on the authority of the Jaggampet Case (1902) I.L.R, 25 Mad., 678 (P.C.), that he and his undivided brother Chinnadorai would have taken the property jointly with the rights of survivorship between them; and applying the rule in Kalama Natchiar v. The Rajah of Shivangunga (1863) 9 M.I.A., p. 543, Chinnadorai would have had a right to succeed by survivorship if Periadorai had died before him without male issue and undivided from him. It was however argued that this ruling which was given with reference to partible property should not be extended to an impartible estate because it is said there is co-parcenary in such property. No doubt an impartible estate is the holder's separate property, which he can deal with as he likes except in so far as he is restrained by statute law, such as the Madras Impartible Estates Act. That is the effect of the rulings of the Privy Council in Sartaj Kuari v. Deoraj Kuari (1888) I.L.R., 10 All., 272 (P.C.), Sri Raja Rao Venkata Surya Mahipati Ramakrishna Rao Bahadur v. The Court of Wards (1899) I.L.R., 22 Mad., 383 (P.C.), and Tara Kumari v. Chaturbhuj Narayan Singh (1915) I.L.R., 42 Calc., 1179 (P.C.). Even a right of maintenance does not exist except by custom. See Rama Rao v. Rajah of Pittapur (1918) I.L.R., 41 Mad., 778 (P.C.), decided recently by the Privy Council. Nevertheless, these considerations do not affect the point before us as the rule of succession to an impartible estate has to be deduced not from the existence of any real co-parcenary in that estate but from a notional coparcenary treating it for the purpose as partible property. 50. Mr. Justice Miller has explained the position very clearly in his judgment in Visuanathaswami Naicker v. Kamulu Ammal (1915) M.W.N., 268, and I accept his statement of the law on the point. It thus follows that Chinnadorai had a right at one time to succeed to the zamindari by survivorship excluding the widow and other female heirs. That however is not, the question we have to decide. It is at best only a step in the argument, for the appellant. The question before us is whether as between plaintiff and the last zamindar, Ramalinga, there was any right of survivorship. We must, therefore, consider the effect of the subsequent events proved in the case. 51. Periadorai was a member of a joint family, consisting of himself, his brother, his father and his uncle, which owned some little ancestral property. Periadorai succeeded to the zamindari in 1835, but his father acting under Exhibit (10m) looked after it for him for some years. About 1842 Periadorai wished to assume management and it seems to have led to quarrels between him and his father and others. It would appear from Exhibit 10 that the Collector intervened in 1843 to settle the dispute, and we find in Exhibit N series that the zamindar was put in possession of the zamindari in 1814 and his father separated from him and went away to live in Veppangulam: see Exhibit K. In 1848, Chinnadorai brought a suit against the zamindar for partition and delivery of a half share in the zamindari and in a certain house and other personal property of the zamindar. The zamindar pleaded in defence impartibility, and also an agreement of 1843 by which he alleged his brother gave up all his claims against the estate. Exhibit O is the judgment in that suit and Exhibit O1, the judgment on appeal. A stamped agreement of 1843 was filed in the case: see item (1) in the list of defendant's documents. The trial Court held that the plaintiff had accepted by that agreement 'a specific allowance from the defendant in full of all claims' and rejected his claim to a share in the personal property on that ground: see paragraph 6 of Exhibit O. In the Appeal, Chinnadorai referred to the agreement and said that the words 'no right whatever to the zamindari' were subsequently added to the document after he had signed it and the agreement itself was extorted from him. The Appellate Court, however, confirmed the judgment of the first Court holding that it was 'very much in accordance with the facts and law of the case.' 52. Exhibit 44(a) is now produced by the second defendant as the correct copy of the agreement of 1843 filed in that suit. The Subordinate Judge holds that it is not proved. But whether this copy is properly proved or not, it is clear from the recitals in Exhibits O and O1 that there was an agreement executed by Chinnadorai in 1843 by which he renounced all his claims to the zamindari and the zamindar's personal property in return for an allowance agreed to be given to him. It is sufficient for this case to find that there was such an agreement as above stated. 53. At this time Chinnadorai was living in Veppangulam palace. After his father's death we find him alienating ancestral properties without any reference to Periadorai. Some of the properties alienated belonged to his uncle who had also died; they were in the uncle's patta: see Exhibits IVa and IVb. Exhibits IVc, IVd, IVf and IVg are similar alienations of other ancestral properties. He was also making acquisitions separately for himself: see paragraph 126 of the Subordinate Judge's judgment where the documents are all collected. After his time we find his sons Periaswami and Chinnaswami living separately from each other and holding separate pattas and selling properties separately: see Exhibit A series; this would indicate that probably they became divided between themselves. 54. The Veppangulam palace which was used as the residence of Chinnadorai and his branch, and which is now admitted to be a part of the paternal estate was, it is true, included by Periadorai in a mortgage executed by him in 1854, Exhibit MMM. But for some reason this attempt to claim the property failed, for we find in 1877 the property sold in Court-auction for Periaswami's debt, when his brother Chinnaswami filed a suit and got his half share in it released--see Exhibits 27 and 27(d). No claim was made by the zamindar to a share as he would have done if it was his joint family property in which he had a share. On the other hand what he did was to buy it as Periaswami's property, through his agent Muthusubbier: see Exhibit 27(a). Exhibit MMM1 and MMM2 referred to by the Subordinate Judge merely show that the zamindar was helping Chinnaswami in repairing the building and the wall. As regards the paternal ancestral properties, therefore, except by the inclusion of Voppangulam in Periadorai's mortgage in 1854, there is no evidence whatever of any interference by Periadorai or his descendants with them or of any joint dealings with reference to them. 55. No doubt, as stated by the Subordinate Judge in paragraph 130 and 131 of his judgment where all the documents are mentioned, there were maintenance grants made to Chinnadorai and his descendants from the zamindari, and when they were temporarily resumed, grain was given in substitution. The zamindar also gave occasional grants of timber, fuel, paddy and money. All those however seem to have been made out of grace, as some of the documents expressly say. They were made not only to the male members but also to the ladies of the family, showing that they were not made in recognition of any right of co-parcenary. We may also take it that the members of the zamindar's family and his brother's family were exchanging visits from time to time, as the Subordinate Judge finds in paragraph 132. 56. The question then is whether an this evidence we should find that the two branches were divided or remained undivided. Though there is no proof of a formal partition, I consider that the long course of separate living and separate dealing with properties by each branch, and the absence of proof of any joint dealings at all regarding them, coupled with the fact that Periaswami and Chinnaswami, the sons, apparently also became divided between themselves are strong evidence in support of a finding of complete separation, between the two branches of Ramalinga and of the plaintiff. The way in which Veppangulam palace was dealt with in 1877, as referred to by me earlier, is very significant in this connexion. There was also admittedly separation in food and in worship. But as there was no commensality from the very first as regards worship, separateness of worship may not count for much, But I think there is enough evidence to justify a finding of separation, at any rate in status and as regards all partible properties. It may be that the zamindar's branch, being very well off, did not care to claim any rights in this small paternal ancestral property. But that does not really affect the question. It was then argued that whatever the position may be with reference to the general partible properties of the family the separation regarding them cannot affect the interest of the plaintiff and his branch in the zamindari property, in other words, that the right they originally had to succeed by survivorship is still subsisting, as the zamindari was not the subject matter of any of the transactions from which division has been inferred. The Subordinate Judge has accepted this argument. But I am unable to adopt his conclusion. 57. I may dispose of, first, the argument that the maintenance grants made from time to time from the zamindari assets to Chinnadorai and his descendants have expressly kept alive their right of succession. That junior members have no right of maintenance by law in the zamindari is now settled by the decision of the Privy Council in Rama Rao v. Rajah of Pittapur (1918) I.L.R., 41 Mad., 778 (P.C.), confirming the decision of this Court in Sri Rajah Rama Row v. Rajah of Pittapur (1916) I.L.R., 39 Mad., 396. It has not been shown that in this zamindari there is any customary right to maintenance. It must therefore be taken that the maintenance grants in this case were not made in recognition of any rights but were made as matters of grace; and they cannot therefore be relied on as keeping alive any right of succession. I am unable to agree with the Subordinate Judge's view that it was necessary to show that there was an express division 'as regards the zamindari itself' to affect plaintiff's right to succeed by survivorship. That position I think cannot now be maintained after the recent ruling of the Privy Council in. Tara Kumari v. Chaturbhuj Narayan Singh (1915) I.L.R., 42 Calc., 1179. (P.C.). The Subordinate Judge has, in my opinion, not properly appreciated the effect of that ruling. In that case, their Lordships overruled the contention that an express abandonment of the right to succeed or a partition directly affecting the impartible estate was necessary to put an end to the right of succession by survivorship in the zamindari and to let the widow come in. Their Lordships held that a complete separation in worship, in food and in estate, was proved in the case generally and not particularly with respect to the impartible estate, and gave effect to that finding by preferring the widow's right to succeed. They point out that the Thakur's brother, Bhupat, and his son had at no time any co-parcenary rights in the impartible estate in the bands of the Thakur. Laliteshwar Singh v. Rameshwar Singh(1909) I.L.R., 36 Calc., 481, in which it was held that as regards an impartible raj there could be no separation in estate as there was nothing on which such separation could operate, as the interest of the junior members of the holder's family was only a spes successionis, was cited in argument to their Lordships, and though it is not referred to in the judgment it must be taken to have been overruled. No doubt the view taken in the Calcutta case is a possible view but that view was not accepted by their Lordships. A general partition between the zamindar and the other members of his joint family putting an end to their co-parcenary must, I think, be now held to put an end to their interests, if any, in the impartible estate also. 58. An attempt was made to reduce the importance of this ruling by suggesting that it only embodied a finding of fact as to separation, and two recent decisions--Rani Jagadamba Kumari v. Thakur Wazir N. Singh (1917) 2 Patna L.J., 239, and Baijnath Prosad Singh v. Tej Bali Singh (1916) I.L.R., 38 All., 590 were cited for the purpose. No doubt in every case the question whether there has been a complete separation or not is one of fact to be decided on the evidence in it. But when that fact is found, and it is decided that when the succession opened there was no co-parcenary between the last holder and the person who claims to be his successor, the ratio of the rule of succession by survivorship is gone and succession must then be traced as between divided members. 59. Applying this view to the present case I think it must be held that the plaintiff had no right of succession by survivorship in the zamindari, as I find that he and the last holder were completely separated from each other. The Rani, therefore, succeeded to the zamindari in preference to him and the income during her life was thus her property and plaintiff can claim only a one-sixth share in it as one of her heirs. It was faintly suggested that as she had not drawn it and spent it, it must be taken to have been incorporated by her with the zamindari. Her inability to deal with it was due to the action of the Court in appointing a Receiver and not to any act of volition on her part; and so no inference of any intention of hers to leave it unspent for the benefit of the estate can be drawn. The Receiver of Court holds property for the person rightfully entitled to it and the money collected by him must therefore be treated as the Rani's absolute property. The decree of the lower Court must be modified to give plaintiff only a one-sixth share in the profits that accrued from the impartible estate up to the death of the Rani, he, of course, being entitled to the whole of it thereafter. 60. No other questions or issues were argued before us and I have therefore not dealt with any of them. 61. In the result the decree of the lower Court will be modified with reference to item 40, Schedule III, the Courtallam Bungalow, items 43 and 47, 6, 15, 20, 22 and 30, the Ayyan patta lands in Schedules Vb to Vg, and the properties involved in issues 18 to 22 and past profits in accordance with the findings above stated. In the partible properties and in the outstandings and in the past profits that accrued during the Rani's lifetime, there will be a declaration that plaintiff and the defendants Nos. 2 to 6 are each entitled to a one-sixth share; and a final partition decree will be drawn up by the Subordinate Judge regarding them. 62. As regards the rest of the property the decree of the lower Court must be confirmed. The appeal and the Memorandum of Objections are thus allowed in part and dismissed in part. As regards costs I direct the appellant and the first respondent to pay and receive proportionate costs of the appeal and under Rule XLI of the Rules of Practice fix the appellant's vakil's fee at Rs. 1,000 and the first respondent's, who has succeeded in the main, at Rs. 5,000. In the Memorandum of Objections of the first respondent, he and the appellant will also pay and receive proportionate costs. The costs of the fourth and fifth respondent in the appeal and their own Memorandum of Objections proportionate to their success will come out of the partible estate. Appeal No. 325 of 1918. 63. This is the appeal from the suit brought by Gurusami Pandian for a declaration that he was the nearest reversioner entitled to succeed to the zamindari on the death of the Rani Gnanamani, the mother of the last zamindar who was in possession then. It is now settled that such a declaration cannot be claimed and should not be given: see the ruling of the Privy Council in Janaki Ammal v. Narayanasami Aiyer (1916) I.L.R., 39 Mad., 634 (P.C.). 64. Furthermore, we have found that he has no such right in the connected Appeal. This Appeal therefore fails and must be dismissed. No costs. Madras High Court V.S. Subramania Iyer And Anr. vs Minor Sangili Veerappa ... on 25 January, 1960 Equivalent citations: (1960) 2 MLJ 102 Author: R Iyer JUDGMENT Ramachandra Iyer, J. 1. After taking over the Sivagiri Estate (which was an impartible estate) under the provisions of Act XXVI of 1948, the Government deposited a sum of Rs. 7,899 as an interim payment for fasli 1365. The deposit was made on 16th March, 1957. At the time when estate was taken over, that is, on 3rd January, 1951, the principal landholder, namely, the Zamindar was 'one Varaguna Pandian. The right to the compensation amount will be governed by Section 45 of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act XXVI of 1948). Under that section the compensation amount is first to be paid to the creditors of the impartible estate; of the balance, not exceeding 1 /5th is to be allotted to the maintenance holders, the remainder being divided amongst the sharers, as if they owned such amount as members of a joint Hindu family. The sharers would be (as defined in Section 45(3) of the Act) the Zamindar, his legitimate sons, grandsons and great grandsons in the male line. On the date of the notification Varaguna Pandian had three sons, two by his first wife and one by his second wife. Subsequent to that date, another son was born to him through his 2nd wife. Besides these, he had two illegitimate sons born through a continuously kept concubine, Chellappappal. The illegitimate sons were in existence on the date of the notification. The following genealogy can be usefully referred to, to elucidate the matter in controversy. 2. The compensation amount will, therefore, have to be divided between Varaguna Pandian, the principal landholder, his three sons who alone were in existence on the date of notification (leaving out of account for the present purpose the two sons of the first son who had also been born by then and who would be also sharers) and the persons who had claims for maintenance from the impartible estate. The latter category of persons, namely, the maintenance-holders, would be entitled to a fifth share in the amount. Out of the balance, Varaguna Pandian and his three sons would each take 1/4th with the result that the former would be entitled to have 1/5th share in the compensation amount. Varaguna Pandian died on 16th August, 1955. His interest would devolve on or vest in his coparceners or heirs, as the case may be (that is, whether his interest is considered as coparcenery or separate property). The two sons of Varaguna Pandian born of his first wife had assigned their interest in the compensation amount to V.S. Subramania Iyer and V. Muthuswami Iyer. 3. In O.P. No. 382 of 1957, the 2nd widow and her son, Kutti Raja who was born after the date of the notification, applied to the Tribunal for payment of Varaguna Pandian's share on the ground that they would be exclusively entitled thereto, along with the other widow, they being entitled to 3/4th and the senior widow 1/4th of the share of the deceased. A similar application was filed by the other widow, namely, the first wife of the deceased Zamindar, claiming 1/4th of the 1/5th share that belonged to Varaguna Pandian. To none of these applications, were the illegitimate sons of Varaguna Pandian made parties. The applications were, however, contested by the assignees of the first two sons. The Tribunal held that the 1 /5th share of Varaguna Pandian would be taken by the two widows, each of them being entitled, to 1/4th share, the remaining half of a share being taken by Kutti Raja, the son born after the date of the notification. S.T.A. Nos. 20 and 21 of 1957 arise out of the order in the said applications, filed by the assignees of the first two sons of the deceased Zamindar. 4. O.P. No. 824 of 1957 was an application filed by the two illegitimate sons, namely, Chella Durai and Sami Durai, to the Tribunal claiming that they would be entitled to 1/3rd share of Varaguna Pandian in the interim compensation amount. 5. Their claim was opposed by the second wife of the late Zamindar and her two sons. The Tribunal held that the three sons of the Zamindar, who were alive on. the date of the notification, should be considered as divided sons by reason of Section 45(6) of the Act, and that they would not be entitled to any rights in preference to the undivided son, Kutti Raja, and the two widows. The Tribunal further held that the two illegitimate sons would be entitled to the share to which they would be entitled under the Hindu Law : What they claimed was 1/3 of Varaguna Pandian's 1/5th share. 'The 2nd wife of the Zamindar and her two sons (who will be referred to as the appellants) have filed S.T.A. No. 32 of 1959 against the order of the Tribunal in O.P. No. 824 of 1957, claiming that the illegitimate sons of Varaguna Pandian would have no share in the compensation amount, including the interim payments. 6. It is not disputed that 1/5th share of the compensation amount would go to the maintenance-holder, 3/5th to the three sons of the Zamindar who were in existence on the date of the notification, and that the other 5th which represented the share of Varaguna Pandian would be taken by those on whom his interest in the compensation amount would devolve under the law, there having been no testamentary disposition by him. The question in the appeal is who are the persons that would be entitled to take 1/5th share of Varaguna Pandian and in what proportion. 7. The Tribunal held that the three sons who were in existence on the date of the notification should be held to be divided sons as and from the date thereof with their father by reason of Section 45(6) of the Act, and that the 4th son, Kutti Raja, being undivided would take the property by survivorship, subject to the right of the two widows under the Hindu Women's Right to Property Act, 1937, and that of the two illegitimate sons. 8. The contention on behalf of the appellants is that the illegitimate sons would have no such right. On behalf of the assignees of the first two sons, it is claimed that the notification would not have the effect of disrupting the joint family, that all the sons of the deceased Zamindar should be held to have continued as members of a joint Hindu family, and that, notwithstanding the fact the first three sons had taken their respective shares in the compensation, they, as undivided sons, would be entitled to take along with the rest Varaguna Pandian's share. This claim is contested by the appellants as well as the illegitimate sons. 9. It is first necessary to dispose of an argument: raised on behalf of the appellants that, as the illegitimate sons would not be entitled to any share in the compensation amount under the provisions of Section 45, they would have no right to Varaguna Pandian's share on his death. 10. Section 45, so far it is relevant for the presentcase, runs as follows: (1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply; (2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group: (a) the principal landholder and his legitimate sons, grandsons and great grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great grandsons adopted before" such date (who are hereinafter called 'sharer') and (b) other persons who, immediately before the notified date, were entitled to' maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904, or under any decree or order of a Court, award, or other instrument in writing or contract or family arrangement which is binding on the principal landholder (who are hereinafter called 'maintenance-holders')... (3)... (4)... (5)... (6) The balance of the aggregate compensation shall be divided among the shares, as if they owned such balance as a joint Hindu family and a partition thereof had been effected among them on the notified date. 11. It is contended that the impartible estate having been taken over by the Government, free from all encumbrances, the only right in the erstwhile landholder being what is provided for under the Act, the persons who will be entitled to share the compensation money would be those mentioned in Section 45. And, as Section 4.5, does not recognise an illegitimate son as a sharer, he would not be entitled to any portion of the compensation amount. The argument proceeds on a fallacy. The question now before us does not relate to the distribution of the compensation a mount as such. There is no doubt that the right to the compensation amount will vest only amongst sharers, that is, the principal landholder and his legitimate sons, etc., as if there had been partition on the date of the notification. But once it has so vested, each one of the sharers would be entitled to what he obtained as his property, whether it be regarded a joint family property between himself and his sons, or as his separate property. When, therefore, one of the sharers died after the notified date, the distribution of his share of compensation amount could not be under the provisions of the Act. The Act does not provide for it, but it will be under the ordinary law governing testamentary disposition or succession, as the case may be. In the instant case, under the provisions of Section 45, one fifth of the compensation amount would belong to Varaguna Pandian, as if there was a partition between him and his three legitimate sons on the notified date. When he died in 1955, that. share would devolve according to the Hindu Law, the course of devolution varying, as the property is viewed either as separate or joint family property. 12. It is not disputed that, if the property is considered the separate property of Varaguna Pandian, the illegitimate sons would be entitled to a share. Even if that property were held to be joint family property as between Varaguna Pandian and Kutti Raja, the illegitimate sons would be entitled to a share. In Mulla's Principles of Hindu Law (12th Edition), dealing with the right of an illegimate son, it is stated at page' 484: On the father's death, however, he succeeds to his estate as a coparcener with the legitimate son of his father, with a right of survivorship, and he is entitled to enforce a partition against the legitimate son. 13. In Raja Jogendra v. Nityanand (1890) L.R. 17 I.A. 128 : I.L.R. 18 Cal. 151 (P.C.) there was an ancestral impartible estate. The Zamindar, who belonged to Sudra community, died leaving a legitimate son as well as an illegitimate son. On the death of the Zamindar, his legitimate son succeeded. But he died issueless. The question arose whether his father's illegitimate son could succeed to the impartible estate. The Privy Council held that the illegitimate son having survived the legitimate son would be entitled as a coparcener to succeed to the family estate, which was an impartible estate, on the death of his brother without male issue. In Sham Rao v. Munnabai I.L.R. (1948) Nag. 678 it was held that a dasipulra of a deceased Sudra Hindu could claim partition as against the legitimate son of his father (his half brother) in respect of the property which was ancestral in his father's hands. Gur Narain Das v. Gur Tahel Das (1952) 2 M.L.J. 251 : (1952) S.C.J. 305 : 1952 S.C.R. 869 (S.C.) related to the succession to the separate property of a deceased Sudra. The Supreme Court held that, on the death of the father, the illegitimate son succeeded as a coparcener to the separate estate of his father along with the legitimate son with a right of survivorship inter se and would be entitled to enforce partition as against the legitimate son. Vellaiyappa Chetty v. Natarajan (1931) 61 M.L.J. 522 : L.R. 58 I.A. 402 : I.L.R. 55 Mad. 1 (P.C.) related to a case where the father was himself a member of joint Hindu family. The question arose whether his illegitimate son would have any rights as against the other collateral members of the joint family, of which his putative father died as a member. It was held that, where the father left no separate property and died joint with collaterals, the illegitimate son would not be entitled to demand a partition as against those collaterals. 14. But where the father died having been joint with his sons, the joint family consisting of himself and his sons or his other descendants, and there is no question of a collateral branch being joint or where the father left separate property, the illegitimate sons would be entitled to share along with the legitimate son. Therefore, it would make no difference whether the 1/5th share in the compensation amount to which Varaguna Pandian was entitled, be regarded as his separate property or joint family asset as between him and his undivided sons. In cither case the illegitimate sons would be entitled to their proper share on his death. 15. It was contended on behalf of the assignees of the two sons that Section 45(6) would not have the effect of dividing the members of the joint family, and that, therefore, all the legitimate sons of the deceased Zamindar would be entitled to share what was left by him, namely, his interest in the compensation amount. If that contention were to be accepted, the share of each of the two illegitimate sons would be only 1/14th of 1 /5th. It is now well-settled that the junior members of an impartible Zamindary are not coparceners and have no right in the impartible estate, except the chance of succeeding by survivorship to the estate after the death of the holder. Under the Madras Impartible Estates Act, there is a restraint upon the holder of the impartible estate for the time being from alienating the property. Except for that statutory restriction, the general law is that the holder of an impartible estate can deal with it by way of alienation or otherwise. He is also held to be the absolute owner of income from the estate. But where the holder of the estate died, succession to the impartible estate would be regulated by the rule of survivorship by treating the impartible estate as if it were joint family property. The impartible estate is, therefore, recognised as joint family property only for ascertaining who should succeed on the death of a holder. 16. It was contended that the share that was given to the sons under Section 45(6) was compensation of their chance of succession to the estate and not as a share in any joint family asset, and that, therefore, it could not be held that by reason of Section 4.5 (6) there has been a partition between Varaguna Pandian and his sons. 17. The question whether the share of compensation which the sons of a proprietor obtained under Section 4.5 (6) is a share of joint family property, and whether by reason of the statute there has been a partition between the proprietor and his sons, has to be decided on the terms of the statute. Section 3(b) vests the entire estate, free from all encumbrances, in the Government, on a notification being made under the Act. Section 66 repeals the provisions of the Impartible Estates Act. so far as the estate is concerned from the date when the Act came into force. The repeal of the Impartible Estates Act in regard to the estate does not mean that all the members of the joint family (that is even collaterals) would be entitled to a share in the comper.sation amount. Under Section 3 (e) of the Act, the principal or any other landholder or any other persons whose rights stand transferred and determined under the provisions of the Act shall be entitled only to such rights and privileges as are conferred on him by the Act. Section 45 regulates the rights of various members of the family on the taking over of an impartible estate. Section 45(6) creates a right to the compensation amount in the sharers, namely, the principal landholder, his legitimate sons, grandsons, etc. No other person barring the maintenance-holders) has any right to the compensation amount. In Ranga Rao v. State of Madras a brother of the holder of an impartible estate taken over under the Act by the Government claimed the compensation amount as partible property. The learned Judges negatived the claim. Section 4.5 (6) states that the compensation amount would be divisible between the sharers, as if there is a partition on the notified date.. Therefore, whatever might be the rights of the principal landholder or his sons in the impartible estate before the date of the notification, the compensation amount is treated as (1) property owned by the sharers as if they constituted members of the joint Hindu family and (2) the share of each of the sharers determined as if there had been partition between them on the notified date. In other words, two results follow from the statutory provision; (i) That the compensation amount is joint family property of the sharers and (2) that there had been a partition of that asset on the date of notification between them. 18. Section 45 which enacts a fiction cannot, however, be extended so as to effect a division between the members of the family in regard to other properties, for neither the status of the family nor its other properties are within its operation. 19. It was contended on behalf of the assignees that there could be no partition without a division in status. Reference was made to the decision of the Privy Council in Girija Bai v. Sadashiva Dhundiraj(1916) 31 M.LJ. 455 : L.R. 43 I.A. 151 : I.L.R. 43 Cal. 1031 at 1046 (P.C.) in support of the contention that every partition should be the result of a division in status, and that as there had been no such division in status with respect to the compensation amount, provision of Section 45(6) could not be read as effecting a partition in regard to the compensation amount. 20. That however is not the way to approach the case. The statute which gives right to compensation amount treats it as a joint family property and also treats it as if there has been a partition of that property on the date of the notification. The statute creates a legal fiction for the purpose of compensating those persons, who, but for the Act would be entitled to certain rights in the impartible estate. So far as the principal landholder was concerned, his estate was taken over. So far as the sons and grandsons are concerned their chance of succession to the estate and their rights to maintenance have disappeared. In providing compensation for those persons, the statute creates a fiction by treating the compensation amount as joint family property. While that fiction could not be extended so as to hold that there was a partition in the family of the sharers, its operation could not be belittled either, by holding that it has not done what it purported to achieve. Therefore, so far as the compensation amount, is concerned, the sharers should be deemed to have been divided, but in regard to their other coparcenary properties, they would continue to be as before, that is, undivided. 21. The position, then, will be analogous to a case where members of a family are divided in regard to certain items of property, but continue to remain in undivided status in regard to others. It has been held that it is open to the members of a joint family to sever their interest in respect of a part of the joint estate, while retaining their status as a joint family and holding the rest as the property of the undivided family. The consequence in such a case would be that the character of the undivided family property will be taken away in regard to that part of the estate which was the subject-matter of division, while as regards the rest, the members would retain their joint status. See Approviyer v. Ram Subba Aryan 11 M.I.A. 75 and Ramalinga v. Narayana Annavi (1922) 43 M.L.J. 428 : L.R. 49 I.A. 168 : I.LR.45 Mad. 489 : A.I.R. 1922 P.C. 201 at 205 (P.C.). the relevant passage not being reported in the authorised reports). In such a case, the devolution on the death of a member quoad the undivided property would be by the rule of survivorship, and quoad the divided property, by succession. In our opinion, that rule would apply to the present case on the footing, that by reason of Section 45(6) there has been partition quoad the compensation amount, though there was no partition in regard to other properties. The devolution or succession to the share obtained in such a partition would be on the basis of its being a divided item of property. Therefore, the -1/5th share of the compensation amount, to which Vara-guna Pandian, the deceased Zamindar, became entitled under the provisions of Section 45(6), should be held to be divided property in his hands, and the persons entitled to take it on his death would be, his undivided son, namely Kutti Raja, his two widows and his two illegitimate sons, the other sons being treated as divided in respect of that item of property. The first three sons of Varaguna Pandian will have no interest in the 1/5th share, to which, the deceased Zamindar became entitled under the provisions of Section 45(6). 22. On behalf of the appellants, it was contended that by reason of Section 3 of the Hindu Women's. Rights to Property Act (XVIII of 1937) the illegitimate sons would have no rights in the property of Varaguna Pandian which should be deemed to be the joint family property as between him and his 4th son. Section 3 of Act XVIII of 1937 states as follows: When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other School of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such pre-deccased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such pre deceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a pre-decea-sed son of a pre-deceased son. (2) When a Hindu governed by any Schools of Hindu Law other than the Dayabaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had. (3) Omitted. (4) Omitted. 23. It is contended that under Section 3(2) the widow would represent the same interest as that of her husband, that as the illegitimate sons would not be entitled to any share or interest in the property during the lifetime of their putative father except at his choice, a similar disability would affect their claim during the lifetime of the widow. It was further contended that as the personality of the husband is deemed to inhere in the widow, the widow would take all the interest of her husband and there would be nothing left for the illegitimate sons to take. 24. That contention cannot be accepted. It is well known that the Hindu Women's Rights to Property Act, 1937, was intended to give better rights to women and to the extent of securing them those rights certain inroads were made in the law of succession and joint family. But that cannot mean that other heirs, namely, an illegitimate son who had certain rights of inheritance as a son lost such rights on the passing of that enactment. In Ramaiyya v. Motiyya (1951) 2 M.L.J. 314 : I.L.R. (1952) Mad. 187 it was held that that enactment had not the effect of abrogating the other rules of Hindu Law. In Alamelu Ammal v. Chellammal (1959) 1 M.L.J. 269 it was held that there was nothing in the enactment or in its intendment to create further inroads into the joint family or coparcenary property other than what was necessary for the purpose of giving certain rights in the property to the widow of the deceased person. We cannot accept the contention that the effect of Section 3(2) of the Act was to disinherit an illegitimate son. The provision in Section 3(1) which relates to separate property does not lead to any such conclusion. The purpose of Section 3(2) is to only confer on the widow the same share as that of her husband where partition is sought to be effected between her and her sons. The illegitimate son is. in the position of a son, though the share to which he is entitled at partition would be half of what he would get if he were the legitimate son. Vide Vellayappa Chettiar v.. Natarajan (1931) 61 M.L.J. 522 : L.R. 58 I.A. 402 : I.L.R. 55 Mad. 1 (P.C.). In a case where a person died a member of a coparcenary with his collaterals, the widow alone would get her husband's share but the illegitimate son would not. That is because the illegitimate son is not a coparcener with the collaterals while the widow who suffered under a similar disability before, got her rights secured under the statute. That question however does not arise here, for the property left by Varaguna Pandian would only be the joint family property of himself and his undivided son. In our opinion, the illegitimate son would' be entitled to share in the inheritance along with the widows and the undivided son. 25. The question, then is the quantum of share to which each of the parties would be entitled. It has been held that, after the death of the father, both the legitimate and illegitimate sons take as coparceners, but the latter in a partition would get only half of what he would be entitled to had he been legitimate. The widow would be entitled to a share equal to that of the legitimate son. Therefore, the 1/5th share which belonged to Varaguna Pandian will be taken by his two widows, his undivided son, Kutti Raja, and the two illegitimate sons. The Tribunal has divided that property equally between the three groups. In this, they were not correct. The share of each of the illegitimate sons would be half of what he would get had he been a legitimate son. It should, therefore, be held that each of them would be entitled only 1/8th share in the interest of Varaguna Pandian in the compensation amount and both of them together will be entitled to 1/4th and not 1/3rd (Vide the illustration given at page 119 in Principles of Hindu Law, by Mulla). The remaining 3/4A will be divided between the widows and Kutti Raja, the undivided son, so that each of the widows would get 3/16th share and Kutti Raja 3/8th share of the 1/5th share of the compensation amount which the deceased Zamindar possessed. 26. The order of the Tribunal will be modified accordingly, and the case remanded to the tribunal for working out the reliefs to which the parties would be entitled. No order as to costs. Madras High Court Subramanya Pandy Chokka Talavar vs Siva Subramanya Pillay And Ors. on 13 February, 1894 Equivalent citations: (1894) ILR 17 Mad 316 Bench: M Ayyar, Best JUDGMENT 1. This was a suit to recover the mittas or estates called Perunani and Karaikurichi and the pannai or home-farm lands therein, which had formed part of the zamindari of Maniachi, situated in the district of Tinnevelly. The Subordinate Judge of Tinnevelly, who tried the suit, dismissed it with costs. Appellant (plaintiff) is the present Zamindar of Maniachi, which is admittedly an impartible estate belonging to a joint Hindu family, but capable of being enjoyed by but one member of the family at a time, and respondents are alienees who are in possession of the property in dispute. 2. The transactions which have given rise to this litigation are fully set forth by the Court of First Instance in paragraphs 25 to 57 of its judgment. The Subordinate Judge has also sufficiently stated the substance of the pleadings, the contentions of the several respondents, and the questions arising thereupon for determination, and we do not think it is necessary for us to recapitulate in this judgment. 3. Of the fourteen issues recorded for decision, the thirteenth and fourteenth relate merely to improvements and mesne profits. To the decision on the first three issues, no exception is taken at the hearing before us. The fourth, sixth and seventh issues relate to preliminary grounds of objection urged against the suit, whilst the other issues refer to the merits. 4. The first question for determination is that raised by the fourth issue, viz., whether the suit is barred by the Act of Limitations. The facts, from which it arises, are shortly these. At the commencement of the year 1866, and for some years before it, one Bhuloka Pandya Chokka Talavar was the Zamindar of Maniachi, and the properties now in dispute were then comprised in the zamindari. He died on the 14th January 1866, leaving him surviving seven widows and five minor sons as shown in the sub-joined pedigree: Bhuloka Pandya Chokka Talavar, Zamindar of Maniachi, who died in January, 1866. His seven wives. | ------------------------------------------------------------------------------- | | | | | | | No. 1 No. 2. No. 3 No. 4. No 5. No.6. No. 7. Kattama Rama Udayanna Rama Shanmukha Shanmukha (died Talavachi Talavachi Talavachi Talavachi vadivu vadivu childless.) (died (died (died | Talavachi. Talavaohi. childless). childless). childless.) | | | son Chokka | son Subra- Talavar, | mania Pandya No. 8. | Chokka Talavar | Plaintiff | (Appellant) | No. 12. Three-sons. -------------------------------- | | | Subramanya Vellaya Sendura Pandya Chokka Pandyan, Pandyan, Talavar, No. 10 No. 11. No. 9. (died un- married). 5. On the death of Bhuloka Pandya in 1863, the Government at first recognized as his lawful successor, his soc by the fourth wife, Chokka Talavar, No. 8 in the pedigree. He was, however, junior in years to the eldest son by the fifth wife, Subramanya Pandya Chokka Talavar, No. 9 in the pedigree. But the Government considered that his mother's prior marriage was a legitimate ground of preference. As he (No. 8) was a minor, the Court of Wards/Assumed management of the zamindari under Regulation V of 1804. The late zamindar's fifth wife then instituted Original Suit No. 25 of 1866 on the file of the Civil Court of Tinnevolly, disputing the action of the Government and asserting her eldest son's preferable claim by right of primogeniture. In May, 1868 the Civil Court decreed in his favour. Meanwhile, the Government recalled their recognition of the junior son by the fourth wife and recognized in his stead the eldest son by the fifth wife, No. 9 in the pedigree, Subra-maya Pandya Chokka Talavar, and the Court of Wards since continued in management on his behalf. 6. Of the three sons by the fifth wife, the second son, Vellaya Pandyan, died unmarried during his minority, and the eldest Subramanya Pandya Chokka Talavar, the last recognized zamindar and lawful holder, died during his minority in 1873, leaving him surviving one uterine brother, named Sendura Pandyan, No. 11 in the pedigree, and two half-brothers, Chokka Talavar, No. 8, and the plaintiff (appellant) No. 12 in the pedigree. It is an undisputed fact that of the three surviving brothers, the plaintiff is the eldest. It is also admitted that the zamindari of Maniachi is an impartible estate belonging to a joint Hindu family constituted by its male coparceners, and that the last lawful zamindar was appellant's and Chokka Talavar's half-brother, and the uterine brother of Sendura Pandya, No. 11 in the pedigree. 7. Appellant rests his title to the zamindari in this Court, as in the Court below, on his position as the eldest of the surviving brothers of the last zamindar, while the respondents' case is that the uterine brother, Sendura Pandyan, excludes him from succession. With reference to this contention, it was alleged for the appellant that Sendura relinquished his interest in the zamindari, if any in favour of the appellant by document C, which bears date the 15th August 1885. The plaint, which is dated the 9th June 1885, prayed for a decree (1) establishing appellant's right to the properties in dispute, cancelling the decree in Original Suit No. 14 of 1866 and the auction sale in its execution, and (2) awarding him possession of the properties mentioned in the plaint. It stated that the decree and the execution sale were vitiated by fraud, and that the circumstances constituting fraud came to appellant's knowledge only in March, 1885. The decree in Original Suit No. 14 of 1866 was passed on the 4th May 1867, and the sales in execution of it took place on the 11th and 13th August 1870, and were confirmed by the Civil Judge on the 14th September, 1870. The purchasers were placed in possession on 27th and 29th September 1870. 8. These are the facts which have to be borne in mind whilst dealing with the question of limitation with reference to the arguments addressed to us at the hearing. Treating this suit as one brought to recover immoveable family property unlawfully alienated during appellant's minority, the Subordinate Judge has found that it is barred by limitation. He rests his opinion on the ground that appellant was born on the 5th May 1861 and completed his twenty-first year on the 4th May 1882, and not as alleged by him on 11th June 1882. It is urged on appellant's behalf that this finding is contrary to the weight of evidence. 9. The date of appellant's birth formed the subject of the sixth issue, and the evidence cited with reference to it is partly oral and partly documentary. It must be observed that in the case of the appellant, no horoscope has been kept so as to throw light on the precise date of his birth. Both parties admit that appellant was in existence from the 12th June 1861, the contest being as to whether he was born on that date, or, as found by the Subordinate Judge, on the 5th May 1861. 10. As regards the oral evidence, it is that of plaintiff's witnesses Nos. 4 and 25, and defendants' witnesses Nos. 11 and 12. The two former state that plaintiff was born in the month of Vaiyasi, Andu 1036 corresponding to May--June 1861, and the two latter depose that the plaintiff's birth-day star or lunar mansion was 'Satayam' or the 24th lunar day or star in the month of Chittirai. Both the witnesses for appellant are related to him, the fourth being a distant relative, and the twenty-fifth witness being his maternal uncle. The evidence of the maternal uncle is open to the observation that he is unable to remember the month and year in which his own eldest and other sons were born, though he professes to recollect the month and year in which appellant was born. The evidence of the fourth witness is also open to the remark that the date of the temple festival at Tiruchendur in the district of Tinnevelly in the year 1861 with which he connects appellant's birth shows (as explained by the Subordinate Judge) when it is computed from the calendar, that appellant was born on the 5th May and not on the 12th June. 11. On the other hand, respondents' twelfth witness does not name the month in which special worship or Archanai is performed in the Tiruchendur temple on appellant's Janma Nakshatram day or the day of his birth fixed with reference to the lunar asterism or mansion. According to respondents' eleventh witness it is clear that the appellant's Janma Nakshatram or the star, under which he was born, was the 'Satayam' or the 24th lunar mansion day in the month of Chittirai which corresponds to the 5th May 1861 according to the calendar. Respondents' witnesses are not connected with them. The Subordinate. Judge describes the evidence at length in paragraph 21 of his judgment and comes to the conclusion that appellant was born on the 5th May 1861; and after carefully considering it, we see no reason to disturb his finding. In the first place, respondents' eleventh witness is a disinterested witness. The fact deposed to by him is in the nature of circumstantial evidence. It is a fact which he was in a position to remember from the Archanai or special service being performed every year on the same lunar day of the same solar month. It is corroborated by the date of the Tiruchendur festival in the year 1861 with which, event the fourth witness connects appellant's birth. Respondent's twelfth witness corroborates the eleventh so far as the performance of a special service in the Tiruchendur temple on the zamindar's birth-day and the name of his Janma Nakshatram or the star under which he was born are concerned. 12. On the other hand, the onus of showing that the suit was brought in time is on the appellant. Both his witnesses are related to him, and their evidence is open to the observations mentioned above. The appellant's pleader suggests that his fourth witness may have made a mistake, but it is not likely. The allusion to the Tiruchendur festival as the event which enabled him to fix the month and star of appellant's birth appears to be natural. 13. The documentary evidence bearing on the sixth issue consists of two Exhibits H and XV. The former is a takid sent on the 31st May 1882 by the Sub-Collector of Tinnevelly to the Tahsildar of Ottapidaram taluk. It states that the Maniachi Zamindar attains his majority on the 12th June and directs the Tahsildar to close the accounts of the estate and be ready to deliver the zamindari on the 13th June. Exhibit XV is the letter written by the Sub-Collector to the Collector on the same date and is to the following effect: "It appears the eldest minor of the Maniachi estate has no horoscope and the exact date of his birth is not known. The Tahsildar on examining the previous records and on due inquiry, approximately fixes the date on which the minor attains his age as the 12th June 1882. I propose to issue orders to the Tahsildar to make over the estate to the minor on the 13th proximo." The report of the Tahsildar, to which reference is made in Exhibit XV, is not before us. We cannot say that the exhibits which name the 12th June 1882 approximately as the date on which the appellant attained his majority are inconsistent with the finding that the actual date of birth was the 5th May 1861. It is then said that the zamindari was actually made over to the appellant on the 13th June 1882, but this fact does not carry the case further. No correspondence is produced, from which we can infer that the real date of birth was ascertained by the Court of Wards, and it was enough for that Court that, on the 13th June 1882, when they transferred the estate, the appellant had ceased to be a minor. The Subordinate Judge appears to us to have come to a correct finding as to the date of appellant's birth. 14. With reference to the latter part of the sixth issue, it is argued by respondents' pleader that under the Indian Majority Act IX of 1875, Section 3, the appellant should be treated as having attained his majority on the completion of 21 years, only in case he had lawfully been under the jurisdiction of the, Court of Wards, and that he must otherwise be treated as having attained his majority on the completion of 18 years. We shall presently consider the question whether Sendura Pandyan excludes the appellant from succession and whether an uterine brother succeeds to an impartible estate in preference to a half-brother, though the latter is senior in years to the former. Assuming, for the purpose of dealing with the question of limitation and for that purpose only, that the appellant was not only the de facto but also the de jure zamindar, we see no reason to doubt the correctness of the Subordinate Judge's decision that appellant attained his majority on the completion of 21 years on; the 4th May 1882. 15. There are three more matters in connection with which the question of limitation has been considered by the Subordinate Judge. Adverting to the prayer in the plaint that the decree in Original Suit No. 14 of 1866 and the sales, in execution of it, of the properties in dispute be cancelled, the Subordinate Judge observes that there is no doubt that as a suit to set aside Court sales in execution of a decree to which appellant was a party, it must be governed by the one-year's limitation prescribed by Article 12, Schedule II of the Act of Limitations. He adds, however, that, as the plaintiff was a minor, a period of two years must, under illustration (b), attached to Section 7 of the Act, be added to the one year. It is argued on appellant's behalf that this is a misapprehension of the scope of the illustration, and that the period of limitation prescribed by Article 12 is applicable to minors as well as to adults. 16. That article premises a suit to set aside a sale in execution of a decree and prescribes as the period of limitation one year from the date on which the sale is confirmed. The case premised by illustration (b) of Section 7 is one in which the right to sue for a legacy accrues to A during his minority, and A attains his majority eleven years after such accrual; he would have under the ordinary law one year remaining within which to sue, but under this section an extension of two years will be allowed him, making in all a period of three years from the date of his attaining majority within which he may bring his suit. The Subordinate Judge considers that by reason of the illustration (b) a minor, who is a party to a suit, has three years to set aside a sale therein from the date on which he attains his majority. He relies in support of his opinion on Mahommed Hossein v. Purundur Mahto I.L.R. 11 Cal. 287 and on Suryanna v. Durgi I.L.R. 7 Mad. 258 but neither of thorn is in point. The question whether illustration (b) of Section 7 is an authority for giving a minor the right to sue to set aside a sale falling under Article 12 within three years from She date on which he attains his majority, though Article 12prescribes only one year in the case of adults, was not raised or considered in those cases. 17. The illustration, no doubt, recognises the principle that when the period of limitation prescribed by the ordinary law exceeds three years but expires within three years from the date on which he attains his majority, the minor will have the whole period of three years from the date of his majority. But it does not warrant the inference that it gives three years in cases which are governed by Article 12. If the minor were an adult at the date of the sale which he seeks to set aside, he would have to sue within one year from the date of the confirmation of the sale; and on attaining his majority, he stands in the position of an adult, and there is no reason why he should have three years instead of one year from the date of majority. Section 7 ought to be read together with each article in the second schedule, and when the period prescribed by the latter extends to three years or more and expires within three years from the date of attainment of majority, the intention is that the late minor should have the full three years. But when the period of limitation prescribed by the schedule, as for instance by Article 12, is less than three years, and the minor has that period from the date of his majority, we see no warrant for holding that the intention was to enlarge the period of limitation prescribed by the schedule to three years. We are unable to adopt the view of the Subordinate Judge that the appellant had more than one year to set aside the Court-sales if he were a party to Original Suit No. 14 of 1866. 18. In paragraph 147 of his judgment, the Subordinate Judge observes that as a suit to set aside the decree in Suit No. 14 of 1886 for fraud, the suit is governed by Article 95 which allows the appellant a period of three years from the date on which the fraud came to his knowledge. As he finds however, that no fraud has been proved, the question does not arise in this case, and we shall consider in connection with the merits whether this finding is correct. 19. The Subordinate Judge also refers to Article 44[1], though he considers it to apply only to voluntary sales; but, for the appellant, it is contended that, by analogy to that article, he is entitled to sue to set aside, within three years from date of his majority, an improper Court-sale which took place during his minority with the privity of his guardian. We cannot accede to this contention, as Article 12must be read together with Article 44, and there can be no true analogy when there is an express provision to the contrary. With Articles 12 and 144 before us, we do not think that Article 120, which presupposes the absence of a special provision applicable to the case under consideration can apply. The conclusion we come to on the fourth issue is that the present suit is time-barred as a suit falling under Article 144 or Article 12 and that neither Article 120 nor 44 nor 45 has any application. 20. In dealing with the question of limitation it was assumed that appellant was a party to Original Suit No. 14 of 1866 by his guardian, and that as the eldest surviving brother, though of the half-blood, he is lawfully entitled to the zamindari. We now proceed to consider these questions. 21. The question raised by the fifth issue is whether appellant is entitled to the zamindari of Maniachi in preference to Sendura Pandya Talavar who is still alive. The facts upon which it arises for determination are (1) that the zamindari is an impartible estate; (2) that it belongs to the coparcenary family consisting of the appellant and his brothers; (3) that the propositus was Subramanya Chokka Talavar, No. 9 in the pedigree, who died without male issue; (4) that Sendura Pandyan is his uterine brother, whereas appellant is only his half-brother, and (5) that the latter is older than the former and is the eldest of the surviving sons of Bhuloka Pandya Chokka Talavar. It is admitted that Subramanya Chokka Talavar was the eldest son of the previous Zamindar, and that he succeeded his father by right of primogeniture, no special custom being alleged by either party as controlling the right of primogeniture in ease of disputed succession to the zamindari. The point for consideration is whether, under the Mitakshara law nearness of blood is a ground of preference as between brothers of the half and full blood in case of disputed succession to impartible coparcenary property. 22. The Subordinate Judge decides it in the affirmative, but in that opinion we are unable to concur. Apart from authority, we are of opinion that on general principles the question should be answered in the negative. The first of them is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu Law. The third principle is that, in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. In determining who the single heir is according to these principles, we have first to ascertain the class of heirs who would be entitled to succeed to the property if it were partible, regard being had to its nature as coparcenary or separate property, and we have next to select the single heir by applying the special rule indicated above. 23. Applying the principles mentioned above to the case before us, there can be no doubt that if the property in dispute had been the separate property of the last lawful zamindar, from whom succession has to be traced, the uterine brother would be preferred to the half-brother. In enumerating the classes of heirs to separate property with reference to the Smriti of Yagnavalkya cited in Mitakshara, Chapter II, Section I, Sloka 2, the commentator observes in Chapter II, Section IV, Sloka 5, that "'among brothers, such as are of the whole blood take the inheritance in the first instance', under the text already cited, 'to the nearest sapinda the inheritance next belongs,' since those of the half-blood are remote through the difference of the mothers.'" Vignanesvara Yogi proceeds then to state in Section 6 that "if there be no uterine brothers, those by different mothers inherit the estate," and adds in Section 8 that "in case of competition between brothers and nephews, nephews of the whole blood have no title to the succession in preference to brothers of the half-blood," for their right of inheritance is declared to be on failure of brothers. If the zamindari of Maniachi, from which the property now in litigation was severed by Court-sales, had been the separate or self-acquired property of Subramania Talavar, Sendura Pandya, his uterine brother, would certainly have succeeded to it in preference to the appellant who is his brother by a different mother. The principle which determines the class of kindred entitled to succeed is that, in case of disputed succession to such property, remoteness of blood furnishes a rule of exclusion. This being so, the further question arises whether the same principle applies when the property is the coparcenary property, though impartible, belonging to a joint Hindu family consisting of the deceased zamindar and his brothers. Looking again to the Mitakshara law of succession as applied to partible coparcenary property, the right of survivorship is mentioned as a dominant right which controls the rule of succession applicable to separate property. In Chapter II, Section I, Sloka 20, of the Mitakshara, the commentator premises a case of competition between the coparceners and widows of a deceased person, and refers to the text of Narada 'let them allow a maintenance to his women for life,' and concludes that the widows are entitled only to maintenance, the coparceners being entitled to the property. It follows that in case of coparcenary property, the doctrine of survivorship furnishes an additional rule whereby the class of heirs has to be found. It is also a controlling or dominant right for the reason that, according to Hindu theory, coparcenary property belongs to the coparcenary family, that though coparceners are tenants in common, they have no specific property but only an interest which may ripen into specific property on partition, and that, if the existing coparceners die without male issue, they are to be treated as if they had never been born, and, as if the partible property actually belonged to the body of coparceners who are alive at the time of partition. When, therefore, partible property belongs to a coparcenary family, and when a coparcener dies without male issue, leaving one uterine brother and one half-brother surviving him, the half-brother is entitled to share the property equally with the uterine brother at the time of partition, the deceased brother being considered as if he never had been born, and the property being treated as always vested in the family as a unit, and as never absolutely vested for purposes of inheritance in any one coparcener in preference to another, how much soever the family may change as to the number of coparceners from time to time during coparcenary. To say, therefore, that nearness of blood is a ground of preference in such cases would be tantamount to ignoring the pre-existing coparcenary interest of half-brothers. Nearness of blood being thus no ground of preference under the Mitakshara law in case of disputed succession to coparcenary property when it is partible, it is likewise no ground of preference when such property is impartible. It is conceded that the zamindari belongs to the coparcenary family consisting of all the brothers of the propositus, and the nearest class of kindred in which the single heir ought to be found is that of brothers, whether of the whole or half-blood; and applying the rule of primogeniture as a subsidiary rule of selection, since there is no specific custom, the brother, that is entitled to the zamindari, is the eldest in years, viz., the plaintiff or appellant. 24. This view is in accordance with the course of decisions to which our attention has been called at the hearing. 25. The first is the case of Katama Natchiar v. The Rajah of Shivaganga 9 M.I.A. 539. The point decided in that case was that the zamindari of Sivaganga was the self-acquired property of Gouri Vallabha Tevar, the prior lawful zamindar, that the competition being between his daughter and brother's son, there was no right of survivorship as in the case of coparcenary property, and that, according to the ordinary rule of succession, the class of kindred among whom the single heir was to be found was represented by the daughter and not by coparceners. The question now in dispute did not arise in that case, but there are observations made by the Privy Council which indicate, the principles that should guide our decision in this case. Their Lordships say there are two principles on which the rule of succession, according to the Hindu law, appears to depend. The first is that which "determines the right to offer the funeral oblation and the degree in which the persons making the offering are supposed to minister to the spiritual benefit of lithe deceased; the second is the right of survivorship. It is generally intelligible that upon the principle of survivorship the right of the coparceners in an undivided estate should prevail. Their Lordships say further that in coparcenary property according to the principles of Hindu law, there is coparcenership between the different members of a united family and survivorship following upon it; for there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession. But the law of partition shows that as to the separately-acquired property of one member, the other members of that family have neither unity of interest nor unity of possession, and the foundation, therefore, of a right to take such property by survivorship fails. It is said that these observations are in the nature of obiter dicta, but if so, they are the dicta of the highest judicial tribunal for India, followed in several later cases. Moreover, the two main principles of succession mentioned above are those embodied in the text of Manu, that the inheritance belongs to the nearest sapinda', and in the text of Narada, to the effect that in an undivided family the brother takes the coparcenay property in preference to the widow. 26. The second case is Neelkisto Deb Burmono v. Beerchunder Thakoor 12 M.I.A. 523. That was a suit in the nature of ejectment brought by a brother of the half-blood against the uterine brother on the ground that, as he was the eldest of the class of heirs from whom a jobraj should be selected according to family custom, the appointment by the deceased zamindar of his younger brother, the then defendant, as jobraj, was invalid. The Privy Council held that the appointment was valid by family custom or kulachar which imposed no restriction on the power of the reigning raja to appoint a jobraj from among his kindred. On this point, the Lords of the Judicial Committee remarked that "where there is evidence of a power of selection, the actual observance of seniority even in a considerable series of successions cannot of itself defeat a custom which establishes a right of free choice; and had the instances been uniform and without exception, that alone would have been sufficient to support the appellant's case. Such uniformity of practice was, however, not proved, for, several instances appear of infants appointed to the office of jobraj, whilst relatives within the custom and older in years were living." It is this finding of fact that was the ratio decidendi, but the decision is an authority for the proposition that in determining the right of succession to an impartible estate, we should first ascertain the class of kindred from whom a single heir is to be selected, next see whether family custom or kulachar discloses a special rule of selection, and that in default of such custom, seniority of age constitutes a title by descent to the impartible estate, by analogy to general Hindu law. The Judicial Committee say further that by general Hindu law, the uterine brother would be the heir in preference to the half-brother, were it a disputed succession to divided property. 27. This limitation is also in accordance with the text of the Mitakshara in Chapter II, Section IV, slokas 5 and 6, and is an authority for the proposition that in case of disputed succession to impartible property, which was acquired by, or belonged exclusively to, the deceased zamindar, nearness of blood is a factor to be considered in determining the class of kindred from whom the single heir has to be selected. Respondents' pleader lays considerable stress on the passage in the judgment of the Privy Council which deals with the contention on behalf of the appellant in the Tipperah case, to the effect that the preference of the whole to the half-blood does not extend to a raj, and that, when the estate is ancestral and undivided, brothers of the whole and half-blood are on the same footing. Their Lordships observe as follows: "When a raj is enjoyed and inherited by one sole member of a family, it would be to introduce into the law, by judicial construction, a fiction, involving also a contradiction to call this separate ownership, though coming by inheritance, at once sole and joint ownership, and so to constitute a joint ownership without the common incidents of coparcenership. The truth is, the title to the throne and to the royal lands is, in this case, one and the same title. Survivorship cannot obtain in such a possession from its very nature, and there can be no community of interest; for, claims to an estate in lands and to rights in others over it, such as to maintenance, are distinct and inconsistent claims. As there can be no survivorship, title by survivorship, where it varies from the ordinary title by heirship, cannot, in the absence of custom, furnish the rule to ascertain the heir to a property which is solely owned and enjoyed and which passes by inheritance to a sole heir." It is further argued on behalf of the respondents that the doctrine of survivorship, as a dominant right, has no operation as well in the case of impartible coparcenary as in the case of impartible separate property, and that we are not at liberty to introduce a distinction so as to vary the ordinary rule of succession which, it is contended, applies alike to both. We are unable to accede to this suggestion for several reasons. In the first place, later decisions of the Privy Council recognized survivorship as a material factor when the impartible estate is coparcenary property. In the next place, the Tipperah estate is situated in a part of India governed by the Dayabhaga School of Hindu law, which explains away the Smriti of Narada as inapplicable to married women and denies a place to the doctrine of survivorship in its scheme of succession. It may be, as suggested by Mr. Bhashyam Ayyangar on respondents' behalf, that when the Tipperah case was decided by the Privy Council, there was an impression at Calcutta that, even under the Dayabhaga law, there was survivorship as an exception to the general scheme of inheritance in the case contemplated by Jimutavabana in verse 34, Section 5, Chapter XI of the Dayabhaga. But such a notion was held to be erroneous by the Full Bench of the High Court at Calcutta in Rajkishore Lahoory v. Gobind Chunder Lahoory I.L.R. 1 Cal. 27 and see Sheo Soondary v. Pirthee Singh L.R. 4 I.A. 147 wherein it was decided that by the Hindu law current in Bengal, a brother of the whole blood succeeds in the ease of an undivided immoveable estate, in preference to a brother of the half-blood. The ratio decidendi is that the doctrine of survivorship has no operation under the Dayabhaga law either as part of the general scheme of inheritance or as an exception to it. 28. Again, the recognized foundation of the right of survivorship is the Smriti of Narada cited in Mitakshara, Chapter II, Section 1, verse 7; but Jimutavahana notices this Smriti in Chapter XI, Section 1, verse 48, of the Dayabhaga, and concludes after a consideration of the other Smritis, especially the Smriti of Vrihaspati, that Narada contemplated the case of wives of an inferior rank, who do not possess the status of a Patni or the lawful wife of approved rank. On the construction suggested by him in verse 54, there is no foundation in the Smriti law, on which the doctrine of survivorship can rest. As the Mitakshara, however, differs from the Dayabhaga, the decision in the Tipperah case, although it is in perfect accordance with the Dayabhaga law, has no application in the Mitakshara country. 29. It is further urged by the learned pleader for respondents that assuming that the Tipperah hills and estate are governed by the Dayabhaga law, the reason assigned by the Privy Council for their decision suggests that the character of impartible property as one capable of sole enjoyment by the incumbent for the time being is so much in the nature of separate property that it is inconsistent with the theory of coparcenary of which unity of ownership and unity of possession quoad the property in litigation are essential incidents. 30. This contention is sound only in the Dayabhaga country, for, as explained by this Court in Naraganti Achamma Garu v. Venkatachalapati Nayanivaru I.L.R. 4 Mad. 250 266 he modifications of coparcenary which flow from impartibility consist in this: "where from the nature of the property, possession is left with one coparcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his coparceners, in virtue of their co-ownership--the-obligation to provide them with maintenance and the obligation to preserve the corpus of the estate. The rights of possession and maintenance are to this extent distinct and inconsistent--that they cannot coexist and be enjoyed by the same persons, that the one is a right to the immediate perception of the fruits of the property, the other a right to an indirect benefit, but both rights have a common origin, unity of ownership.... Separate possession but not separate ownership is the characteristic of property, which, although impartible, is ex hypothesi joint. Co-ownership, which is the cause of survivorship, was held not to exist in the case of the Tipperah raj. We should have hesitated to express an opinion at variance with that ruling if we could find no support for our views in a ruling which is equally imperative upon us, and from which, in the Tipperah case, their Lordships expressed no intention to dissent. In Katama Natchiar v. The Rajah of Sivaganga 9 M.I.A. 593 their Lordships declared that, in the absence of proof of a special custom of descent, the succession to a zamindari impartible and capable of enjoyment by one member only of the family at a time, is governed by the general Hindu law prevalent in that part of India with such qualifications only as flow from the impartible character of the subject. The impartibility of the subject does not necessitate the denial of the right of survivorship, and there are not wanting in the admitted rules which govern the enjoyment of such property and the succession to it indici a of co-ownership and consequent survivorship." This case is an authority in the Presidency for the proposition that the very custom by which coparcenary property is rendered impartible suggests survivorship as a necessary incident of impartibility, and that it is not correct to say that there is no coparcenership in regard to such property, the difference being only in the form in which coparcenary exists in respect of partible and impartible property. 31. In this connection our attention is drawn to the decision of the Privy Council in Rani Sartaj Kuari Rani v. Deoraj Kuari L.R. 15 I.A. 51. This case modifies the opinion expressed in the last preceding case to this extent and no further, "when the estate is governed by the Mitakshara law, and it is impartible by the usage and custom of family and descends according to the law of primogeniture on the male heirs of the original grantee, the estate is not inalienable except on proof of special custom." The case is, therefore, an authority for the proposition that inalienability is not one of the modifications which flow necessarily from the impartibility of the subject. As regards survivorship as a cause of succession, their Lordships expressly save it and say, "by the custom or usage, the eldest son succeeds to the whole estate on the death of the father as he would if the estate were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is joint ownership which is a restraint on alienation. It is not so difficult where the holder of the estate has no son, and it is necessary to decide who is to succeed." Referring to the Sivaganga case, their Lordships add "the saying in the Sivaganga case that the zamindari, though impartible, was part of the family property, must be understood with reference to the question which was then before their Lordships." That question was one of succession and not of alienation, inter vivos. 32. Another case referred to is what is called the Totapalli case Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 13 M.I.A. 333. In that case, an impartible estate belonging to a joint Hindu family was usurped by one of the members of the family. The zamindar, by the aid of another member of the family, ousted him and afterwards entered into an agreement with him to pay the revenue. There was no division in the family. It was argued in that case by appellant's counsel that the estate being impartible must, from its very nature, be taken to be separate estate, and consequently that, according to the decision in the Sivaganga case, the succession was determinable by the law which regulates the succession to a separate estate, whether the family be divided or undivided. With reference to the first contention, their Lordships answer was: "It is clear that the mere impartibility of the estate is not sufficient to make the succession follow the course of succession to separate estate. Their Lordships apprehend that if they were to hold that it did so, they would affect the titles to many estates held and enjoyed as impartible in different parts of India. Has it then been shown that, though the family was undivided, the estate was in fact the separate property of the appellant's husband?" After answering the above question in the negative their Lordships answered the second question in these terms: "In the Sivaganga case, the zamindari had escheated to Government, which was free to deal with it as it chose. By a new sannad the Government granted it to Gouri Vallabha, conferring a legal title which none could dispute. But what was done in this case?" After referring to the facts of that case their Lordships state: "This account shows no legal forfeiture, no fresh grant by any person competent to grant a legal title. It only shows that on a dispute between Mallappa Dhora and his superior, another member of the family came in, and, with the strong hand and in concert with the superior, succeeded in ousting Mallappa Dhora and in assuming the position and right of the zamindar." This case is an authority for the position that forcible dispossession produces no change in the nature and tenure of the impartible property. 33. Another case is that of Maharani Hiranath Koer v. Baboo Ram Narayan Sing 9 B.L.R. 274 324 in which the Tipperah case was dissented from. 34. Two other cases were also referred to at the hearing--Ranganayakamma v. Ramaya Mayne § 499 and the Padamathur case I.L.R. 1 Mad. 312. They follow the Sivaganga case. 35. The latest case is that of Raja Jogendra Bhupati Hurri Chundun Mahapatra v. Nityanund Mansingh L.R. 17 I.A. 128. In that case the contest was as to the right of succession to an impartible raj and a zamindari, the rival claimants being the last male holder Nandikishore's three widows and daughter on the one side, and his illegitimate brother on the other. The joint family belonged to the Sudra caste. Their Lordships of the Privy Council held that the illegitimate brother was entitled under the Mitakshara law to succeed by survivorship and observed as follows: 'according to the decision in the Sivaganga case which, as their Lordships understand is not now disputed, the, fact of the raj being impartible does not affect the rule of succession. In considering who is to succeed on the death of the raja, the rules which govern the succession to a partible estate are to be looked at, and, therefore, the question in this case is what would be the right of succession, supposing instead of being an impartible estate, it were a partible one." After discussing the point and concluding that the right of survivorship existed as between the deceased zamindar and his illegitimate brother, their Lordships held that the latter was entitled to succeed to the raj by virtue of survivorship. This case is the latest authority for the position that when the impartible estate belongs to a coparcenary family, the right of survivorship determines the heir entitled to succeed. 36. The next question is whether the suit is barred by Sections 13, 244 and 212[1] of the Code of Civil Procedure. It is conceded that if the eighth issue is determined against the appellant, this question must likewise be decided against him. 37. The eighth issue is whether the plaintiff and his predecessor in title were properly represented in Original Suit No. 14 of 1866. The Subordinate Judge states the facts of the case so far as they bear on this question in paragraphs 96 to 57 of his judgment, and comes to the conclusion that the appellant and the zamindar whom he succeeded were represented for the reasons mentioned in paragraphs 58 to 103. To this finding several objections are taken on behalf of the appellant. 38. The first objection is that though the appellant and his predecessor in title were made defendants in Original Suit No. 14 of 1866, yet they were then minors, and they were not described either as defendants by their mothers and guardians, nor were their mothers, who were also defendants, described as the guardians of their minor sons. It appears from the decree in that suit that the first eleven defendants consisted of six widows and the five minor sons of the former zamindar, Buloka Pandya, including the plaintiff and his predecessor in title, the mother's name being entered first as that of a defendant and the minor's name being entered next as that of her minor son. It is not stated in terms that the mother of each minor was appointed or made a party as his guardian, ad litem; but it is clear that, in each case, the mother was her minor son's natural guardian and that the object in including both as defendants was presumably to make both parties to the suit, the mother as Buloka Pandya's widow and the minor son by his mother and natural guardian. It was Act VIII of 1859 that was in force when the suit was brought, and it contained no provisions as to appointment by the Court of guardians, ad litem, for minor defendants. According to the then practice of the Court, it was sufficient if the mother was made a party as guardian and permitted to act as such on his behalf. It is also in evidence that the mother of Subramania Pandya Chokka Talavar, plaintiff's predecessor in title, applied for a postponement of the sale and preferred an appeal to the High Court from the order of the Civil Judge refusing her application. The conclusion we come to is that in the suit of 1866, as originally framed, appellant and his predecessors' mothers were included to act as their guardians; that the Court allowed them to act as such; that one of them endeavoured in execution proceedings to obtain a postponement of the sale, and that, though the description is defective, the defect is merely one of form and the minors were in no way prejudiced thereby. 39. Even assuming that the description is insufficient, we must still hold that minors were adequately represented and their interests carefully protected by the Collector of the District, as the Agent of the Court of Wards, and as their guardian ad litem. Original Suit No. 14 of 1866 was instituted subsequent to the death of Buloka Pandya Chokka Talavar, but prior to the recognition of his son, Chokka Talavar, by the Government as his successor, and to the assumption of management of the zamindari by the Court of Wards. After the Court entered on the management of the estate, the Civil Judge included the Collector of the District as the twelfth defendant, and he was made a party as the ex officio guardian of the minor heirs. It is clear, therefore, that the minors were sufficiently represented by the Collector as their guardian ad litem, if not also by their mothers previously; but it is urged on behalf of the appellant that the Collector, as Agent of the Court of Wards, was the lawful guardian only of the then recognized zamindar, on whose behalf the Court of Wards held the zamindari, but not of his brothers including the plaintiff and his predecessors in title, the then fifth and ninth defendants. We do not, however, attach weight to this contention, as it is open to the Judge to appoint any competent person as guardian, ad litem, provided that there is no antagonism between his interest and that of the minors in the subject-matter of the suit. The Collector accepted the appointment and acted as guardian of all the minor sons. Representation by him of all minor sons as their guardian under the order of the Court is sufficient, even if it were held that the Collector could only treat under Regulation V of 1804 the particular minor on whose behalf the Court of Wards then managed the zamindari as their proper ward. 40. The second objection is that the mothers of the minors allowed the trial to proceed ex parte, and that summonses were not served upon them. As regards non-service of summonses the allegation was attempted to be supported by oral evidence which the Subordinate Judge has discredited. As to the weight due to the oral evidence on this point, we concur in his opinion. It is true that the copy of the judgment in Original Suit No. 14 of 1866 shows that the Collector alone defended the suit, but the circumstances of the case suggest the inference that the minors' mothers left the defence to be conducted by that officer acting under the direction of the Court of Wards, as he was more competent than themselves adequately to protect the minors' interests. We may here observe that the interests of the then de facto minor zamindar, who was the ward of the Court of Wards under Regulation V of 1804, were identical with those of his brothers so far as they related-to the subject-matter of that suit. 41. The third objection is that the admission by the Collector of the claim was an act not compatible with his position as guardian, ad litem, and prejudicial to the minors. Exhibit XXI proves that the Collector acknowledged the correctness of the plaint in Original Suit No. 14 of 1866, but requested that the debt sued for and other debts might be permitted to be paid rateably from the income of the estate as it was realised. If the claim was true and valid (it will appear later. on from this judgment that such was really the case), it is preposterous to say that the guardian should not' have acknowledged the claim but put the plaintiff to the proof of it. Such conduct on his part would add to the costs of the suit, which would be a needless burden on the estate. We are of opinion that the Collector's action was bond fide and abundantly warranted by the actual facts of the case. 42. It is here argued that of the six instalments for which a decree was asked for in the plaint, only three were overdue at date of suit, that the fourth, fifth and sixth instalments had not then accrued due, and that the Collector ought to have resisted the claim for a declaratory decree in respect of the last-mentioned instalments. It is true that the plaint prayed for an order of the Court directing defendants to pay into Court the fourth, fifth and sixth instalments as agreed on in the razinamas on which the suit was based. It is also true that the Civil Court decided that there must be a decree for the then plaintiff for the amount sued for, and for an order that the fourth, fifth and sixth instalments be paid as they fell due. Assuming that no such order should have been made, the then plaintiff might have obtained separate decrees for those instalments with costs prior to the date of the Court-sale. The omission, therefore, of the Collector to take the technical objection now argued saved the minor the costs of other suits which the creditor was at liberty to institute as each instalment fell due. Considering that he put in the written statement in communication with the Court of Wards and with its sanction, and seeing also that the Collector then asked the Civil Court for indulgence as to payment of the decree amount from the income of the zamindari, his action was perfectly bond fide. It was not then unusual for the Civil Courts in order to avoid multiplicity of suits (though the practice is now considered loose) to include a direction in the decree passed on instalment bonds to pay future instalments due on those bonds as they fell due. 43. Another objection taken to the finding on the eighth issue is that the decree was merely declaratory in so far as it related to the fourth, fifth and sixth instalments, and that the decree was nevertheless executed against the minors' estate. 44. It must be observed, however, that the decree was not declaratory but contained an order for payment as those instalments fell due, and, in fact, the sale now impugned by the appellant took place long after they had become overdue. In our opinion this objection is entitled to no weight. 45. Another objection is that the Collector ought to have objected to the execution of the decree on the ground mentioned in the last paragraph, when he represented the plaintiff's predecessor in title in execution proceedings. In fact the Collector did not then take the objection; but, if it had been taken, it would have been disallowed for the simple reason that on its true construction, the decree was not declaratory after the future instalments became due any more than a decree for payment of future maintenance at a fixed rate would be, and that in execution Courts do not go behind the decree sought to be executed, but take it as they find it, unless it is impugned for fraud or want of jurisdiction patent on the face of the record. 46. It is also an admitted fact that neither the plaintiff's predecessor in title nor any one else on his behalf objected to the execution of the decree at any time before his death, and we do not think that the plaintiff is now at liberty to rip open the decree and to undo proceedings held in its execution, and completed during his predecessor's lifetime, except on the ground of fraud or collusion. 47. The next objection is that the Collector should have obtained an adjournment of the sale and not allowed the property in dispute to be sold. The Subordinate Judge refers to the several applications made for adjournments of the sale, to the several adjournments actually granted to the order of the Civil Judge refusing the last application and to the several attempts made to prevent the sale, and to its being at last found unavoidable as shown by the Collector Mr. Longley's letter. We agree in the opinion that the sale was not due to any laches on the Collector's part as guardian of the plaintiff's predecessor in title, but to its being found otherwise impracticable to clear off the heavy debts left by Buloka Pandya Chokka Talavar. 48. The next objection is that there was no attachment prior to the sale. This is not well founded in fact, and it is inconsistent with the appellant's admission in the plaint. There are also several, exhibits which prove that an attachment preceded the sale. On this point we agree with the Subordinate Judge that the objection has no foundation in fact. 49. Passing on to the ninth issue, we observe that there is not a particle of evidence in support of the alleged fraud. The learned pleader for the appellant states that he relies on the objections taken by him to the decision of the Subordinate Judge on the eighth issue as constituting together a case of fraud. We are of opinion that they do not amount to fraud. 50. The last question which remains to be considered in this appeal is that raised by the tenth issue. The plaintiff's case was that the decree-debt was vicious and immoral, and that, although it had originally been, contracted by his father, yet it was not one binding upon him. The contention for the defendants was that the debt was incurred for purposes binding on the former zamindar, Buloka Pandya's family, and therefore on the plaintiff. The Subordinate Judge has stated the evidence on each side, and, after carefully considering it at length, has come to the finding that the debt was neither vicious nor immoral as alleged by the appellant, but was a debt contracted by a Hindu father for purposes binding on his family. In this opinion we entirely concur. The evidence for defendants clearly traces the nucleus of the decree-debt to debts contracted by appellant's father in 1845 and 1849 whilst the plaintiff was born only in 1861. Original Suit No. 1 of 1845 was brought by an illegitimate son of appellant's grandfather, and, to that suit, the grandfather and Buloka Pandya, appellant's father, were made parties. The object of that suit was to recover possession of a pannai land or home-farm on the ground that it had been sold to the then plaintiff by appellant's grandfather. Appellant's father resisted the claim, but the suit ended in a compromise, whereby it was agreed that appellant's grandfather should pay the then plaintiff Rs. 7,000, that the sale in favour of the latter should be cancelled, and that appellant's father should succeed to the pannai land given up by the then plaintiff. After the compromise, appellant's grandfather died, and appellant's father succeeded to the zamindari and the pannai. land in November 1845. 51. In order to pay the sum of Rs. 7,000 due under the razinamah to pay peishcush, and the then zamindar's installation expenses and palace expenses, appellant's father borrowed Rs. 22,000 from one Vellayan Chetty. That this debt was contracted for the above mentioned purposes is, as observed by the Subordinate Judge, proved by defendants' witnesses Nos. 1, 3, 4, 7 and 8, by plaintiff's witnesses Nos. 4 and 22, and by the compromise V. 52. Vellayan Chetty institutued Original Suit No. 1 of 1849 against appellant's father and another, and the suit terminated also in a compromise, whereby appellant's father undertook to pay the debt in certain instalments. 53. In order to pay Vellayan Chetty, appellant's father borrowed from one; Venkataehellam Chetty, who subsequently brought Original Suit No. 3 of 1854, which suit terminated in a compromise, which secured the debt on the zamindari and moveable property of appellant's father. In execution of the decree several razinamahs were filed, the last of which was for Rs. 36,000. Venkataehellam assigned his right under the razinamah to Chidambaram Chetty, the plaintiff in Original Suit No. 14 of 1866, in execution of the decree in which the Court-sales now in dispute took place. 54. Thus the nucleus of the decree-debt is traced by a series of public documents to the money borrowed from Vellayan Chetty prior to Original Suit No. 1 of 1849, of which Rs. 7,000 was the amout undertaken to be paid to secure to appellant's father the succession to certain pannai land yielding an annual income of Rs. 10,000, and Rs. 15,000 were borrowed for payment of (i) peishcush, (ii) installation expenses, and (iii) palace expenses. It is argued by the appellant's pleader that the razinamah entered into by appellant's father with Venkatachellam Chetty does not operate to create a charge but only evidences a money-debt. We should be inclined to hold that it did create a charge, for the language of the instrument suggests an intention to secure the debt on specific property. The insertion of general words moveable property in addition to the zamindari cannot defeat that intention which is the key to right construction. However, it is not necessary to determine this question for the purposes of the present appeal, as we concur in the opinion of the Subordinate Judge that, before the property in dispute was sold, it had been attached in execution of the decree. On the other hand, the appellant's contention that the decree-debt was immoral rests on mere oral evidence. The Subordinate Judge sets, out the evidence and considers it not trustworthy, and the reasons assigned by him support his conclusion. On reading the evidence, we do not see our way to coming to a different finding. Thus, on the one side there is unimpeachable documentary evidence, whilst on the other side there is only questionable, oral evidence in regard to transactions which took place more than forty years ago, the evidence being produced at a late stage of the final hearing and several of the witnesses being in a position to be influenced by a person in the appellant's position. We have, therefore, no hesitation in adopting the finding of the Subordinate Judge on the tenth issue. Apart from the weight due to the evidence, there are also several reasons why the appellant should not now be permitted to question the nature of the debt, (i) It was held by the Privy Council in Rani Sartaj Kuari v. Rani Deoraj Kuari L.R. 15 I.A. 51 that a Hindu son has no power, unless he has it by special custom, to question the alienation of an impartible estate by his father, and in the present case there is no proof of such custom; (ii) there is also the fact that the debt sued for in Original Suit No. 14 of 1866 had been contracted more than ten years previous to the birth of the appellant; (iii) again the original debt merged into a decree-debt during the lifetime of appellant's predecessor in title and in a suit to which both appellant and his predecessor in title were substantially parties, and there is no proof of fraud nor any other material fact upon which appellant can repudiate the decree in Original Suit No. 14 of 1866 or the Court-sales in its execution. 55. We shall here briefly notice another question which respondents argued at the hearing of this appeal with reference to the relinquishment by the two surviving brothers of the whole blood in favour of the appellant of any interest which they possess in the zamindari. Exhibit C evidences such relinquishment, and it is admitted by both the brothers of the full blood, Sendura Pandya Talavar and Chokka Talavar. Also in their evidence, as the third witness for the plaintiff and as the Court first witness, they acknowledge the appellant's right to the zamindari. The Subordinate Judge held that on the true construction of the document, their rights of survivorship to the zamindari were not the interest relinquished, but we are unable to support this construction, having regard to the language of paragraph 6 of document C. It is in these terms: "Further, as we have given up in consideration for this, all our right, interest and title, etc., in the moveable and immoveable properties, such as the zamindari, etc., capable of improvement by you, as far as our share. of maintenance is concerned, and as what we have received is sufficient for our share of maintenance suitable to our dignity as per zamindari custom and our shares, you and we are not undivided but divided gnathis (bandhus), and we shall live in separate families." The words 'such as the zamindari' and 'we are divided' disclose an intention to regard the zamindari as appellant's exclusive property from the date of the document. 56. The respondents' contention is that appellant's claim, as based on Exhibit C, would be time-barred, and that the relinquishment is not available to appellant as an additional ground in support of his claim. It is argued that, though Sendura Pandyan, the next junior brother of the appellant and the eldest of the surviving brothers of the whole blood, might not be time-barred by reason of his having attained his majority within three years before he executed document C, yet the privilege conferred upon minors by Section 7 of the Limitation Act is personal to them, and does not extend to their adult transferees, and that the transfer of their right after a period of twelve years from the date on which the sale was confirmed and before the expiry of three years, a period which is allowed to them as a personal privilege, is not actionable if the transferee had attained his majority more than three years before suit. In support of this contention reliance is placed on Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas I.L.R. 9 Cal. 663 and Mohommed Arsud Chowdhry v. Yakoob Ally 15 B.L.R. 357. Those decisions involve, however, the apparent anomaly that a minor cannot transfer his title to property though at the date of transfer it is a subsisting interest so far as he is concerned. In the view which we take of the question whether a brother of the whole blood is entitled to succeed to an impartible zamindari in preference to his elder brother of half-blood, it is not necessary for us to determine this question for the purposes of this appeal. Thus, the appellant's claim is barred first by limitation, and next by Sections 13, 244 and 312 of the Code of Civil Procedure, and lastly, it also fails on the merits. 57. As this is a case which may be taken to the Privy Council, and as the original suit was instituted in 1885 and the appeal preferred in 1891, we have deemed it fit to consider at length all the questions argued before us on appeal in order that no occasion may rise for further investigation. The result is that the appeal cannot be supported and must be dismissed with costs. [1] --------------------------------------------------------------------------- Article 44: --------------------------------------------------------------------------- Description of suit. Period of Time from which period begins limitation. to run. ---------------------------------------------------------------------------- By a ward who has attained Three years.... When the ward attains majority. Majority, to set aside a sale by his Guardian. ---------------------------------------------------------------------------- [2] [Section 212: When the suit is for the recovery of possession of immoveable property and for mesne profits which have accrued on the property during a Court may determineperiod prior to the institution of the suit, and the amount of amountof mesne profits such profits is disputed, the Court may either determine the prior to suit, or may reserve amount of the decree itself, or may pass a decree for the inquiry. And direct an inquiry into the amount of mesne profits, and dispose of the same on further orders.] Madras High Court V. Navaneetha Krishna Thevar vs Ramasami Pandia Thalavar And Ors. on 24 November, 1916 Equivalent citations: (1917) 33 MLJ 277 Author: Wallis JUDGMENT Wallis, C.J. 1. Appeal No. 380 of 1914 is an appeal from the judgment of the Subordinate Judge of Tinnevelly in Original Suit No. 30 of 1911 a suit brought by Eamasami Pandia Thalavar claiming to be the nearest reversioner of the last Zamindar of Uttumalai to declare that certain alienations made by the Court of Wards during their management of the estate on behalf of the widow of the late Zamindar, Eanee Meenakshi Sundara Nachiar, now an incapacitated proprietor under Madras Act I of 1902, are not binding on the estate. Under that Act, as amended, suits by and against a ward are to be in the name of the ward but the conduct of the suit is with the manager appointed by the Court of Wards acting as guardian ad litem. Defendants Nos. 2 to 22 are alienees and persons claiming under them. Defendant No. 23 denies the plaintiff's pedigree and claims to be the next reversioner, and has brought a similar suit (Original Suit No. 26 of 1912) to declare the alienations of the properties mentioned in schedules 5 and 6 of the plaint in Original Suit No. 30 of 1911 invalid. He was added as a party to this suit together with defendants Nos. 24 to 31 whoclaim to be remote reversioners and support him. The plaintiff has also brought other suits in the Court of the District Munsif of Ambasamudram (Original Suits Nos. 380 to 382 of 1909) to question an alleged alienation made by the 1st defendant whilst in management in 1901, and these suits have been transferred to the Subordinate Judge's Court of Tinnevelly and tried along with the principal suit (Original Suit No. 30 of 1911) and are now the subject of appeals before us (Appeals Nos. 346 to 351 of 1915). Though this and the connected suits have been brought for a declaration that certain alienations are not binding beyond the life of the 1st defendant, there can be little doubt that the main object of the plaintiffs in the suits was to assert their respective titles as next reversioners to the estate on the death of the 1st defendant. The relationship of the 23rd defendant is admitted, and though the Subordinate Judge found against his reversionary right, it is now admitted that his judgment on that point, cannot be supported. The relationship set up by the plaintiff in the present suit is strongly contested both by the Court of Wards on behalf of the 1st defendant and by the 23rd defendant, and was the main question fought in the Court below. The Subordinate Judge has found that the plaintiff's case is true and that he is the son of Gnanapurani Nachiar, the legitimate daughter of the Zamindar who died in 1850 and of his 2nd wife Gomathimuthu Nachiar who according to the plaintiff's case was the daughter of one Maruthappa Thevar and was married by the Zamindar Navaneetha Krishna Maruthappa Thevar as his 2nd wife between the years 1841 and 1845, and that Gnanapurani's mother was not, as contended by the defendants, a dancing girl named Kuppi who was living with the Zamindar as his concubine when she gave birth to Gnanapurani. He has also held the alienations questioned to be invalid and has given the plaintiff a declaration to that effect. His judgment on the latter point is supported by the 23rd and subsequent defendants but Mr. Nugent Grant instructed by the Manager for the Court of Wards who is the guardian ad litem of the 1st defendant has appealed against this part of the decision also, and contended that the alienations cannot be questioned, and that being so, that the suit should be dismissed without going into the claims of the rival reversioners. 2. The alienations questioned in the main suit were made by the Court of Wards whilst in superintendence of the estate purporting to act under the statutory powers given them by Section 35 of the Act. In 1899 the old Court of Wards Regulation V of 1802 was amended by the insertion of a general chapter intended to enable the Court to take encumbered estates under its management and clear them from encumbrances, and in 1902 the Eegulation was repealed by Madras Act 1 of 1902 which re-enacted the provisions of the Act of 1899 and introduced other changes. Section 35 of the Act is in the following terms: "The Court may mortgage or sell the whole or any part of any property under its superintendence and may give leases or farms of the whole or any part of such property for such terms as it thinks fit, and may make remissions of rent or other dues, and may generally pass such orders and do such acts not inconsistent with the provisions of this or any other Act for the time being in force as it may judge to be for the advantage of the ward or for the benefit of the property." The Subordinate Judge has held that this only enables the Court to sell or mortgage the particular interest of the ward in the property under superintendence unless there are circumstances which would justify the ward himself if sui juris in selling outright. Under the Act, the ward is not necessarily a full owner and may be, as here, a widow, or the owner of an impartible estate with limited powers of alienation under the Madras Impartible Estates Act, 1904, which continued in substance the provisions of the temporary Act passed at the same time as the Court of Wards Act in 1902, or the property may be owned as joint family property by several minors in which case the senior if of age would only have a limited right of sale. In comparatively few cases under superintendence in this Presidency would the ward if sui juris be full owner with power to sell outright. The power to sell, mortgage or lease is in terms absolute, and is not governed by the restriction in the later part of the section, as pointed out in Mohsan Shah v. Mahbub Ilahi 1; and to say that the Court cannot sell outright where the ward has only a life interest unless there are circumstances which would justify the ward himself in selling under the Hindu law is to import into the section the words which are not there and to hamper the Court in the exercise of powers which are conferred (1907) I.L.R. 29 A. 589 upon it as incidental to its right of management for the benefit of the Estate, that is of the ward and those who come after him. The word property under its superintendence means, in my opinion, the moveable and immoveable property itself and not the particular interest of the ward as widow. Further, if the word property be construed as confined to the limited interest of the ward, it Will be necessary to look elsewhere for the Court's power to sell and mortgage outright in cases where the Hindu Law allows it. Powers of selling, mortgaging and leasing are often conferred on trustees and others as incidental to powers of management, the proceeds being held by them as part of the estate, and I see no reason why the section should not be construed as conferring such power upon the Court. To enable it to extricate encumbered estates from difficulties, the legislature in other sections has gone the length of enabling it to oust mortgagees in possession from management of the property under mortgage to them and take over the management. Sales or mortgages of life interests are always highly speculative and unsatisfactory transactions, and were not, in my opinion, the transactions which the section was enacted to validate. It seems to me that the Intention was to enable the Court of Wards to give a statutory title free from the risk of law suits by subsequent heirs etc., and so to enable it to realise the best price for the estate. The decision by their Lordships of the Judicial Committee in Muhammad Mumtaz Alikhan v. Farhat Alikhan (1901) I.L.R. 23 A. 394, did not relate to a sale or mortgage but to a transaction which their Lordships held to be a voluntary alienation not warranted by the latter part of the section which was nearly in the same terms as the present section. 3. As regards the particular alienations in the plaintiff's schedule, that referred to in the sixth schedule was of one of two bungalows possessed by the estate at a watering place called Courtallum. No tenants were to be obtained, it was falling into decay, and the fact that a ruined Zemindar had been allowed to live there by the late Zemindar and had been buried in the compound was against its letting well. I think that the widow herself would have been justified in selling under these circumstances. The property comprised in the 6th schedule is only 1'7 acres. Both these sales were, in my opinion, within the powers of the Court. 4. The alienations complained of in schedules 1 to 4 were in respect of certain pannai lands in which there was admittedly no occupancy right. The tenants who held on leases for fixed terms set up that, in consideration of their having reclaimed the lands, the late Zamindar had promised to grant them permanent leases on favourable terms and that the promise had been confirmed by his widow in September 1891, whilst in charge of the estate on behalf of her minor son. The Court of Wards contested that claim but later on entered into compromises by which on payment of Rs. 160 per kotta of land the tenants were allowed permanent rights of occupancy at a fixed rent. The result was to settle the litigation and to raise money for the satisfaction of the debts incurred during the life of the late Zamindar. The Subordinate Judge is wrong in saying that such debts were binding only if incurred for necessary purposes. The Madras Impartible Estates Act, 1902, did not affect debts already incurred. The estate which has been included in the Impartible Estates Act was presumably impartible, and under the decisions of the Privy Council was alienable by the holder for the time being prior to the passing of the Act of 1902. Assuming that this transaction amounted to sale of the kudiwaram or occupancy right, I think the alienation was covered by the first part of Section 35, and that in any case it was covered by and was also within the powers conferred by the second part. As regards the rates reserved, it is not shown that they were inadequate, regard being had to the premium paid. The other alienations complained of were made by the widow herself and are the subject of the three suits instituted in the District Munsif's Court of Ambasamudram and transferred to the Subordinate Judge's Court of Tinnevelly and tried along with the other suits, and of separate appeals. The complaint is that the 1st defendant granted the tenants permanent leases and converted the waram rents into fixed money rents. The objection that the 1st defendant granted permanent leases is unsustainable, as it is well settled that even before the passing of the Madras Estates Land Act of 1908 there was a presumption in this Presidency that ordinary ryots, such as these, had permanent occupancy rights in the holdings, and it would have been hopeless to contest it. The conversion of rents payable in kind into money rents is, I think, within the powers of a limited owner, such as a widow. In a good year, rents payable in kind may produce more, but in a bad year they may bring in nothing; and as is well known by every one at all acquainted with the subject there are great difficulties in the way of the due realization of the land-holder's share under the waram system. These and other reasons have induced the legislature now to give either party a right to sue for a commutation of waram into money rents. In the present case, the Subordinate Judge has not found, and it is not shown, that the rate of commutation was unfair, and in these circumstances, I do not think, the plaintiff was justified in coming to court and asking for a declaration as to these items. It is therefore unnecessary to consider the other points raised by Mr. Nugent Grant in this connection. 5. The result is that the plaintiffs in these suits have not made out their right to declarations that any of the alienations complained of are not binding on the Estate. It is well settled by a long catena of cases ending with the recent decision of the Privy Council in Janaki Ammal v. Narayanasami Aiyar (1916) I.L.R. 39 M. 684 : 31 M.L.J. 225, that the reversioners are not entitled to sue for a declaration that they are the next reversioners unless the decision of that question is incidental to the grant of some other relief to which they may be entitled. It follows that the only course open to us is to allow all the appeals, reverse the decrees of the lower court and dismiss the suits. 6. As however the case may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 and 2996 of 1916 for the admission of certain documents rejected by the Subordinate Judge, namely, (1) the decree of the Zillah Court of Tinnevelly, dated 3lst May 1859 in Original Suit No. 4 of 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Rajah in 1850, (3) the reply of the Muzumdar, and (4) the Collector's Takid in 1853 on the complaint of the Zemindar's widow as to the conduct of Maruthappa Thevar who according to the plaintiff's case was the father of Gnanapurani's mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate-General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collector's and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. We think however that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Perianayagam Pillai (1874) L.R. 1 I.A. 209 at 238 they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them. Treating this evidence as admissible, Mr. T.R. Ramachandra Aiyar addressed us a very powerful argument in support of the appeal of the 23rd defendant. Putting aside the direct evidence of the alleged marriage in the forties of the last century as interested and unreliable, he argued, in the first place, that there was no presumption in favour of Gnanapurani's mother having been a legitimate wife rather than a concubine. The Zemindar was an elderly man, had a wife living who had borne him issue and in whom he reposed great confidence and admittedly had one concubine already living in the palace. In these circumstances, he went so far as to contend that the presumption was even the other way. Coming then to the official records of the proceedings of the Court of Wards and its subordinates in the exercise of their official and statutory duties on the death of the Zamindar in 1850 leaving a minor heir, he relied very strongly on the facts that the Muzumdar had proceeded to the palace immediately and made inquiries and that the Collector had also had an interview with the minor heir and the agents of the late Zamindar, and that the Muzumdar had also paid a second visit and made certain further inquiries under the direction of the Collector, and that nothing was heard of the Zamindar having left any second wife, whereas one of the grounds given by the Muzumdar in his recommendation that the estate should be handed over to the widow was that she was the sole wife of the Zamindar, a statement which was further admissible under Section 32 of the Indian Evidence Act as made by a person having special means of knowledge. In any case, these proceedings, he contended were clear evidence that Gnanapurani's mother did not enjoy the status of a recognised wife at the death of the Zamindar, and he contended that evidence of subsequent treatment relied on by the other side might be explained by the admitted relationship and the Zamindar's affection for his paternal sister and was of no avail as evidence of habit and repute. He also drew our attention to the Collector's order in 1853 excluding Maruthappa who is now alleged to have been the second wife's father from the palace on the complaint of the Zamindar's widow that he was endeavouring to entrap the minor into a marriage with one of his girls, and to the absence of any reference to the relationship now set up such as we should expect to find if Gnanapurani's mother had really been his daughter and the junior widow of the late Zamindar. He also drew our attention to the pleadings of the same date in which the Zamindar's widow was referred to as the heir of the late Zamindar without any reference to a junior widow as evidence of general reputation. He relied further upon the fact that the mother and daughter did not reside in the palace itself but in a thatched outhouse known as the Thottikattu and on the fact that the name now claimed for her is nowhere to be found in the accounts or conveyances prior to the death of the Zamindar in 1891, whereas on the other hand she is referred to never in her own name but as the Thottikattu Nachiar or Thottikattu lady years after she had left the palace after her daughter's marriage and gone to live with her in the residence provided by the Zamindar at Uttumalai.,. 7. He also relied on the fact that when the Zamindar purchased a village for Gnanapurani in 1885, the sale deed in her name contains no reference to her relationship and does not even accord her the designation of Nachiar. On the other hand, the learned Advocate General on the other side has contended that the very fact that the other widow allowed Gnanapurani's mother to go on living in the palace after the Zemindar's death is strong evidence of habit and repute as, if she had not been his lawful wife, she would have been turned out with her child. There is in my opinion no ground for this suggestion, and I think he was on stronger ground when relying on the subsequent treatment of the daughter, her marriage to a junior member of the Kadambur Zamindar's family, the provision made for her and subsequently for her family who were married into respectable families, and above all, on the correspondence in which Gnanapurani was addressed by the Zemindar as 'sister,' and her mother was addressed as 'mother' and 'my own mother', and the Zemindar's wife referred to the present first defendant as your daughter-in-law. As regards Gnanapurani's marriage, Mr. T.R. Eamachandra Aiyar contended that her husband had been induced to marry her in consideration of the material advantages of the connection. He was unable to provide her with a home and he and his family lived in the Zemindar's palace at Uttumalai and in dependence on him. If Gnanapurani had been legitimate, the Zamindar would have found a husband in a position to take her to his own home and support her as happened in the case of the Zemindar's two sisters who died young without leaving issue. The illegitimacy would have been no obstacle to the marriage of her children into good families in this caste of Sudras as appeared from the case Pandaiya Telaver v. Puli Telaver (1868) 1 M.H.C.R. 478. He also commented on the fact that there had never been any separate provision made for the mother as the junior widow of the Zamindar, and went into the accounts with a view of showing that the treatment of Gnanapurani and her mother and family, and the provision made for the marriages in her family were not such as were to be excepted if the plaintiff's case was true. With regard to the provision made for Gnanapurani herself and her family, I may say that I was not satisfied that there was any inadequacy on which an inference against plaintiff could be based. As regards the fact that the Zamindar had addressed Gnanapurani as his sister and her husband as his brother-in-law, Mr. T.R. Ramachandra Aiyar contended that under the Hindu Law she was his sister, and that in addressing other relations, the Zamindar had ignored the bar of illegitimacy. His letters to the mother were more difficult to get over. And all that can be urged apparently is that they were all written in the closing years of the Zamindar's life when he had no near relations except Gnanapurani and her family and was disposed to treat her family in all respects as his own. Both parties referred to the oral evidence, but these were the considerations chiefly relied on. I express no opinion as to the proper conclusion to be drawn from them with the assistance of the oral evidence in so far as it may be considered reliable and of all the other evidence in the case; but in the circumstances I have thought it better to mention the Course of the argument before us, more especially as it proceeded upon some evidence which was excluded by the Subordinate Judge, and raised considerations very inadequately dealt with by him which will have to be taken into account in deciding whether the evidence on record of habit and repute taken as a whole justifies the presumption of a lawful marriage, if it be considered that the direct evidence of marriage cannot be acted upon. 8. The result will be that Mr. Nugent Grant's Appeals Nos. 428 of 1914 and 346 to 348 of 1915 will be allowed, the decrees appealed from will be reversed, and the suits dismissed with costs throughout of the 1st defendant to be paid by the 1st respondent. Appeal No. 425 of 1914 is also allowed with costs against the 1st respondent. In Mr. T.R. Ramachandra Aiyar's Appeals Nos. 380 of 1914 and 349 to 351 of 1915, we reverse the decrees, appealed from, and dismiss the suits with costs throughout of the 1st defendant to be paid by the plaintiff. His Appeal No. 381 of 1914 against the decree in Original Suit No. 26 of 1912 dismissing, his client's suit must be dismissed with costs of the 1st, 2nd and 3rd defendants (one set). Burn, J. 9. I agree with the learned Chief Justice in holding that the decree from which Appeal No. 380 of 1914 is preferred should be reversed. There can be no doubt that the real object of the litigation is not the securing of a declaration with regard to the transactions of comparatively little importance which are being impugned but the determination of the question of who the nearest reversioner is with a view to claims to succession on the death of the Zemindarni. 10. As the suit is being dismissed on other grounds, it is unnecessary to record any finding on the merits of the claims put forward by the appellant and 1st respondent in Appeal No. 380 of 1914. As however the questions have been fully argued, it may be as well to indicate briefly the view I am inclined to take on some of the principal contentions which have been relied on in the course of the argument. 11. The last male holder was Navaneetha Krishna Maruthappa Thevar who died on 16th December 1891. The rival claimants are his maternal uncle Navaneetha Krishna Thevar (appellant in Appeal No. 380 of 1914) and Eamaswami Pandia Thalavar (1st respondent in Appeal No. 380 of 1914). The right of the former to be considered a reversioner was disputed and was found against in the lower Court but it is conceded that this finding cannot be supported. The latter claims descent from the grandfather of the last male holder as the son of his daughter by his second wife. If this claim be established, the 1st respondent's rights are admittedly superior to those of the appellant. The question at issue regarding his possession is now narrowed down to this. Whether his grandmother was the wife or the concubine of the Zamindar who died in 1850. If she was a wife, he is entitled to succeed. If she was a concubine, his claim fails. 12. The marriage is alleged to have taken place in or about the year 1845 and the production of reliable direct evidence is a matter of great difficulty. The previous litigation in which one of the questions in issue was whether the present Zemindarni was a wife or a concubine illustrates this point. (Exhibit MMMMM and Annapurni Nachiar v. Collector of Tinnevelly (1895) I.L.R. 18 M. 277 : 5 M.L.J. 1 21. It also affords an instance of masses of unreliable oral evidence being produced by both parties. The oral evidence in the present case is, in my opinion, of very small value. I should not be prepared to act on the assertions of the witnesses for either party except where their testimony is corroborated by the documents on the record or by circumstances established independently 13. The Zamindar was about 50 years of age in 1845. It has been urged that it is highly improbable that a man of this age possessed of a wife, a legitimate son, and one concubine would have contracted another marriage. The parties are Maravars. It was open to the Zamindar to take to himself further wives or concubines. A fresh marriage might be unpopular in his own household, but I do not think any presumption can be raised as to how a particular individual would act under these circumstances. 14. The Subordinate Judge gives some credit to the statements of three out of the four witnesses who have deposed to their presence at the marriage. Plaintiff's witnesses Nos. 7 and 13 make absurd statements as to the year of the marriage and P. W. 14 is shown to be unreliable in another connection. No weight can be attached to this evidence. The case of the appellant is that 1st respondent's grand-mother was a dasi who had been duly initiated, and had followed her calling in the usual way for some years at least. The fact that the Zamindar was the father of her child was denied. The subsequent treatment of this daughter (Gnanapurani) and her descendants is inconsistent with any doubt as to the Zemindar having been her father. This contention has now been given up. The importance of establishing that Gnanapurani's mother was a dasi lies in this, that if the fact be proved she could not have been the lawful wife of the Zamindar. There is no documentary evidence such as temple registers to support the allegation. The first public suggestion that she was a dasi appears to have been made in 1892 and a motive for the accusation is shown to have existed. The oral evidence on the point has been examined in detail by the Subordinate Judge and has been rightly discredited by him. The witnesses are nearly all persons of no position whose statements are discrepant and in many particulars inconsistent with facts as ascertained from documents the authenticity of which is not in dispute. 15. The 1st respondent has sought to establish that his grandmother was Gomathimuthu, the youngest daughtor of Kaduvetti Maruthappa Thevar. The Kaduvetti family was one of some importance with members of which the Uttumalai Thevars might well intermarry. The present Zamindarni is connected with it. The 1st respondent's case, if established, would show that his grand-mother was a suitable bride for the Zamindar and would also raise a presumption that she would not have consented to live with him as a concubine. The earliest details as to the pedigree of Gomathimuthu are given in the course of some litigation in 1894. The stock to which she claimed to belong was however referred to incidentally in 1892 (Exhibits T and TTTT). The chief evidence bearing on this matter comes from members of the Kaduvetti family. Several have been examined on either side and they have supported the parties calling them. There is no doubt that one set of witnesses or the other is giving deliberately false evidence. The statements have been successfully criticised by the learned pleaders oh either side. The reasons given by the Subordinate Judge for accepting the version of the plaintiff are not convincing. If it be unlikely that plaintiff's witnesses would claim relationship to a dancing girl, it is also unlikely that the defence witnesses would convert a near relation into dasi to support the appellant's case. There is a curious absence of any evidence of intercourse between Gomathimuthu and her own family during her long residence in Veerakeralempudur and Uttumalai. It is also a significant fact that in Exhibit XXXVII, the order of the Collector of Tinnevelly, dated 17th January 1853, excluding Maruthappa Thevar from the Uttumalai limits, no reference is made to the fact that his own daughter was then living [in the palace at Veerakeralempudur. The evidence for the plaintiff falls short of establishing the relationship upon which he relies. 16. The appellant relies on the evidence regarding the treatment of plaintiff's grandmother both before and after 1850 as being inconsistent with marriage. It is also contended that official records lead to the conclusion that the Zamindar was survived by one widow only. 17. As to treatment prior to 1850, the main fact relied upon is the admission that plaintiff's grandmother did not live in the main building at Veerakeralempudur palace but in a thatched structure detached from the rest of the residence. It was called "Thottikattu." The lady was distinguished by this name at times and the portion of the Uttumalai palace which she subsequently occupied is described by the same name. It is suggested that a distinction was drawn between her and the lawful wife by attaching to her the name of the building which she occupied while under the Zamindar's protection. 18. The records referred to above, relate to the inquiries and reports made by the Board of Revenue and the Collector of Tinnevelly on the death of the Zamindar in 1850. Only one document was admitted in evidence by the Subordinate Judge but for reasons given by the learned Chief Justice in his judgment two more have been admitted now. These are the reports of the Muzumdar of Tenkasi, dated 7th October 1850, and the Collector's takid, dated 2nd October 1850 to which it was a reply. Unfortunately, the whole correspondence is not produced. The earlier reports cannot have been inconsistent with those now before the court but the later reports would have thrown a great deal of additional light on the state of the family of the deceased Zamindar. This appears from the inquiries made by the Collector in his takid of 2nd October 1850. The takid was not replied to as a whole. The answers to the questions bearing directly on the matter now in issue are not filed. The arzi of 7th October 1850 is a reply urgently called for as to the management of the property. The whole of the correspondence produced relates to this matter only and this has to be borne in mind in judging of its evidentiary value. The Zamindar died on 23rd September 1850, and the Collector's report which is incorporated in Exhibit XXXIII was submitted on 18th October 1850. Prior to the dispatch of this report, the Collector had received arzis from the Muzumdar and had been interviewed by the minor son of the late Zamindar with the Estate agents. The documents show that the Muzumdar asserted that the Zamindar had had one wife only and lead to the inference that up to the 18th October the Collector had heard nothing of a second wife. If a second wife existed the fact must have been well known. It seems unlikely that the local officials would have dared to suppress the fact, yet the Collector could hardly have been kept in ignorance of it except by wilful suppression by the Muzumdar, the minor, and kariastans. It may be safely assumed that, whether plaintiff's grandmother was a wife or concubine, there was no dispute as to her status in 1850. If any such question had been raised, it is almost inconceivable that the friendly relations which subsisted for so long could have been maintained. As to treatment subsequent to 1850, the Advocate General for the 1st respondent has laid great stress on the fact that the plaintiff's grandmother and her daughter lived in Thottikattu building during the minority of the young Zamindar, while his mother was managing his property and until 1868. This is another matter which renders improbable the appellant's account of the origin and past career, of the plaintiff's grandmother. It has however to be remembered that there is no wide gulf fixed in the community to which the parties belong between the position of a wife and a permanent concubine. The case for the plaintiff rests mainly on the inference to be drawn from the treatment accorded to his grandmother and her descendants by the Zamindar Hirudalaya Maruthappa Thevar who succeeded in 1850 and died in 1891. Letters, accounts and orders for the period from 1876 to 1890 are relied upon. It appears that there is a quantity of older records in possession of the Agent of the Court of Wards which is now managing the Estate. Neither party seems to have taken prompt and effective steps to have these examined. There seems to me to be no good reason for supposing that the attitude assumed by Hirudalaya from 1876 onwards differed from that taken up previously. The genuineness of the accounts and orders is not disputed and objections have been raised to only a few of the letters. Exhibits QQQQ and RRRR series are impugned and the Advocate General stated that he did not regard them as adding anything material to the strength of his case. Exhibits H and J are of importance if it be proved that they were sent by or with the approval of the present Zamindarini. The evidence as to this is unsatisfactory. 19. With regard to the undisputed documents, the 1st respondent contends that they establish that Hirudalaya addressed plaintiff's grandmother, her daughter Gnanapurani, and their descendants in terms which indicate legitimate relationship, that he had marriages and other ceremonies conducted for them at his expense, and that he made provision for Gnanapurani on a scale appropriate to her position as his legitimate sister. The explanation tendered for the appellant is that there is nothing in any of these acts inconsistent with his case as to the nature of the union between the Zamindar and Gnanapurani's mother. There is no doubt that Gnanapurani was married at the Zamindar's expense and into a respectable family. Hirudalaya was present at the ceremony. Marriages and various other ceremonies for her children were also conducted at the expense of the Estate. The facts do not by themselves prove that the relationship was legitimate but they certainly form important material for consideration along with the other evidence. In this connection, it has to be remembered that plaintiff's grandmother and her descendants appear to have been the only near relatives of Hirudalaya and that as regards Gnanapurani's descendants they were of legitimate birth. The appellant contends that Hirudalaya did not attend in person that the expenditure was on a small scale and not in excess of that incurred on ceremonies connected with other relatives more distantly connected than a step-sister. It is further pointed out that the marriages of Gnanapurani's daughters were not celebrated at the Zamindar's headquarters, while the reverse was the case with some other relatives. There is no clear direct evidence that Hirudalaya attended the marriages and other ceremonies performed for Gnanapurani's off-spring but there is also nothing which indicates that he did not attend. It is admitted that he was present at the marriage of Gnanapurani and there is nothing unlikely in his having attended the marriages of her children. The scale of expenditure appears to have been fairly lavish in connection with the earlier ceremonies at least, and I am unable to find that there is anything in the comparison instituted by the appellant to help his case. The marriages referred to as having been celebrated at Veerakeralampudur were of girls who were permanently living there. After all, Uttumalai was also a palace of the Zamindar and little importance can be attached to the fact that the marriages took place there. 20. The correspondence relates to the time when plaintiff's grandmother and the daughter had moved to Uttumalai. It shows that Hirudalaya took a deep interest in all the affairs of the family and that he addressed the members of it by terms which indicate close relationship. No doubt some of the terms used, for example, to Gnanapurani's husband and her descendants are reconcilable with his mother having been the Zamindar's concubine and not his wife. Instances are given in the evidence in which forms of address literally denoting close relationship were used to persons who were no relations at all. It is common knowledge that this practice prevails. There are however other letters especially those in which Hirudalaya refers to plaintiff's grandmother as his "mother" and subscribes as her " son" and some in which he refers to his own wife as "your daughter-in-law" which cannot be explained away so easily. It is not enough to say that they are mere polite exaggerations. Zamindar Hirudalaya made considerable grants of pannai lands in favour of Gnanapurani and he appears to have managed them on her account. Subsequently in 1885, he purchased Naduvakkurichi Mitta for her at a cost of Es. 22,000. There is no clear evidence of any specific provision having been made for her mother. The latter must, of course, have been maintained from the Estate. The Subordinate Judge draws the inference that Gnanapurani would not have been treated in this way unless she had been a legitimate sister. This does not necessarily follow. The question rather is whether the cumulative effect of the evidence as to the treatment of his relations by Hirudalaya is sufficient to override the inference to be drawn from what happened in 1850 and to establish the plaintiff's case. 21. The last point to which I propose to make reference is the contention for the appellant that the delay in putting forward plaintiff's claim is fatal to its success. During the life-time of Hirudalaya Thevar, Gnanapurani and her nother were well, provided for, and there is nothing to indicate that any occasion arose on which it was necessary for them to assert their position as legitimate relations. On his death the claim was put forward at once. Vide Exhibit UUUU, dated 14th August 1891, and was repeated on several occasions. It is referred to in the Collector's report, Exhibit XXII, dated 12th September 1891. The fact that Minakshi Sundara Nachiar denied that the relationship was legitimate is also mentioned. It is stated that the claim is " not very seriously pressed" and it does not appear that any inquiry was made about it. There were at the time two persons alive who claimed to be widows of the last Zamindar and also an adopted boy. It is true that the claim put forward by Gnana-purani was to immediate possession of the Zamindari on behalf of herself and her sons but unless and until the other claimants' right could be got out of the way, Gnanapurani would have no chance of success. Under the circumstances, no great importance can be attached to the failure to press the claim at this juncture. After the death of the adopted boy, an interpleader suit was filed by the Collector of Tinnevelly with a view to determining the rights of the ladies who claimed to be widows of the late Zamindar. It is urged that Gnanapurani and her sons would have intervened in this litigation had they believed in the status they claimed. Assuming that it was open to them to intervene it may well be that they saw the difficulty of establishing any present right to possession as against both the other claimants. Subsequent to this litigation, it does not appear that with one exception any suitable occasion offered itself for the assertion of these claims in court. Meenakshi Sundara was in possession as limited owner. An alienation of hers was questioned by one of the plaintiff's brothers in Original Suit No. 54 of 1907. The mortgage to which the suit related was however paid off after institution of the suit, and the suit was withdrawn before contest. No claim was made by Gnanapurani's mother for maintenance until 1911, but she had been living with her daughter and as has been seen, ample provision had been made for the latter. Under the circumstances, I do not think that any adverse inference can be drawn from the delay in bringing this suit. 22. There was a good deal of litigation between the representatives of the Uttumalai Estate and Gnanapurani which turned upon whether she was a tenant in respect of the pannai lands which had been granted to her by Hirudalaya. She consistently based her rights on a gift made in consideration of her relationship. The dispute was eventually compromised. On a consideration of the evidence on this point, I cannot see that any inference unfavourable to the plaintiff is necessary. 23. I purposely refrain from expressing any opinion on the effect of the evidence as a whole. 24. I agree with the judgment of the learned Chief Justice as regards the connected appeals. adras High Court Annapurni Nachiar vs Collector Of Tinnevelly And Anr. on 10 April, 1895 Equivalent citations: (1895) ILR 18 Mad 277 Author: Best Bench: Shephard, Best JUDGMENT Best, J. 1. The question for decision in this appeal is whether the appellant (second defendant) or the second respondent (first defendant) is entitled to possession of the impartible Zamindari of Uthumalai in the Tinnevelly district. 2. The first respondent is the Collector of the district, by whom the suit was instituted for the purpose of obtaining a decision as to which of the rival claimants was entitled to the zamindari, of which possession had been taken by him as Agent of the Court of Wards on behalf of a minor named Navanita KrishnaMarudappa Tevar as adopted son of the zamindar Irudalaya Marudappa Tevar, who died on 12th August 1891. The minor also died on 16th December 1891. 3. The fact and validity of the adoption of the boy Navanita Krishna by the late zamindar Irudalaya, whose widows both appellant and the second respondent claim to be, were denied by the appellant and formed the subject of several issues (5 to 8) settled for trial in the suit. These issues are considered by the Judge in paragraphs 60 to 71 of his judgment, and the conclusions arrived at by him are stated in paragraph 72, namely, that there was in fact an adoption and that no reason appears for holding it to be other than valid. 4. The correctness of the finding is not disputed at the hearing of the appeal, and the evidence on record amply supports the conclusions arrived at by the Judge as to the fact of the adoption. 5. Another fact that is not disputed is the marriage of the appellant with the late Zamindar Irudalaya. But the fact of second respondent being also a wife was denied and formed the subject of the first issue. The Judge has found on the issue in favour of second respondent, and his finding as to the fact of second respondent being a wife of the late zamindar is supported by Exhibit UUU--a statement filed by appellant's own father and brothers in criminal proceedings against the zamindar, in which second respondent is expressly spoken of as the second wife of the zamindar, and also by Exhibit F which contains an admission of the fact by appellant herself. In the face of this evidence the learned Advocate-General, who appeared for the appellant, has been unable to contend that second respondent was merely a concubine and not a wife of the late zamindar. He has contended, however, that the Judge is not warranted by the evidence in finding that second respondent's marriage took place at the same time as that of appellant at the latter's village of Kurukalpatti. This was clearly not the second respondent's case--the whole of whose evidence on the point is directed to showing that second respondent's marriage took place at Virakeralampudur, some 11 miles from Kurukalpatti. The story told by second respondent's witnesses is that, after the marriage of the zamindar with second respondent in the morning at Virakeralampudur, the zamindar started off on horseback accompanied by a couple of servants on foot and proceeded to Kurukalpatti to marry appellant, then a girl aged six or seven years. On hearing of which his mother followed him in a palanquin; and on her arrival at Kurukalpatti the zamindar hastily left, not however till after the marriige with appellant had been performed, and returning to Virakeralampudur went on with the ceremonies of the marriage with the second respondent on the next and following days. The Judge has assigned sufficient reasons for disbelieving this story of second respondent's witnesses. 6. The Judge's reason for finding that the marriage of second respondent must have taken place at Kurukalpatti is the statement by the zamindar in his petition, Exhibit DDD, that he married both appellant and second respondent "at one and the same time." But in the same petition the zamindar has stated that he had divorced appellant, which is found by the Judge to be not true. There is thus no good reason for accepting as true the statement that the two marriages took place "at one and the same time," especially when that statement is opposed to the evidence of second respondent's own witnesses and of second respondent herself. 7. It being found that second respondent's marriage did not take place on the same day as that of appellant, and it not being pretended on behalf of second respondent that it took place on any previous day, the only possible conclusion is that it must have taken place on a subsequent day. From, the finding that the marriage did not take place at Virakeralampudur at the time alleged by second respondent and her witnesses, it follows that there is an entire absence of evidence as to where and when it took place, and were it not for the admission contained in Exhibits DUD and F; there would be no reliable evidence of second respondent being in fact a wife of the zamindar, for the statements made by the zamindar himself in the description of second respondent as a wife in official reports pending the dispute between the appellant and the zamindar are clearly not sufficient to place the matter beyond doubt. But the statement in Exhibit DUD by appellant's father and her brothers and in Exhibit F by appellant herself seem to justify the finding that second respondent was also a wife of the zamindar, but only a junior wife, i.e., a subsequently married wife. 8. The alleged divorce of appellant is found to be untrue not only by the Judge in the present suit, but also by the Subordinate Judge in Original Suit No. 17 of 1889--a suit filed by the late zamindar against appellant and which is the subject of Appeal Suit No. 152 of 1891, which is also now before us for decision. 9. The evidence as to the alleged divorce has been carefully considered by the District Judge in paragraphs 46 to 49 of his judgment, and there is no reason for holding that he has come to a wrong conclusion. 10. As already stated, the Advocate-General no longer contests the fact or the validity of the adoption of Navanita Krishna Marudappa by the late zamindar Irudalaya with the second respondent. 11. The real question for decision, therefore, is whether second respondent as the receiving mother is entitled to succeed to the estate as heir of the boy NavanitaKrishna in preference to appellant, though the latteristhe first married wife of Irudalaya. It is first contended on behalf of second respondent that she has a preferential right to succeed to the zamindari on the admitted fact of her seniority in age to the appellant. But as has been contended on behalf of appellant, seniority in the family of the husband must be calculated from the date of the entry of each wife into that family by marriage and so calculated the appellant is clearly the senior wife--the Dharmapatni--the wife married from a sense of duty--see 2, Golebrooke's Digest, page 124, and Strange's Hindu haw, page 137; cf. also Padajirav v. Ramrav I.L.R. 13 Bom. 160. However, the question here is not as to the succession of wives to a husband, but of the mother to an adopted son. 12. The Judge has found that second respondent as the receiving mother is entitled to succeed in preference to the appellant. In support of this finding he has cited the case of Kasheeshuree Debia v. Greesh Chunder Lahoree W.R. (1864) 71 also a dictum in Teencowree Chatterjee v. Dinonath Banerjee 3 W.R. 49 and the opinion of Sir Francis MacNaghten at page 171 of his Hindu Law where he says, "the boy could not be received by three widows jointly. He must be received by one of them and would then be considered as the son of the widow by whom he had been received." See also the answer of a Pandit in the appendix to the same book, which says, 'The widow adopting will be called the mother and the others the step-mothers." So also West and Biihler in Vol. 1, page 1132 (third edition) of their Hindu Law say, "The importance of the right to adopt as between two or more widows becomes evident when it is borne in mind that the one taking the place of mother succeeds first to her son on his death without child or widow." No doubt the writers above referred to have cited no authority for the views expressed by them, and the rule enunciated in Dattaka. Mimamsa, VI, v. 50 and Dattaka Chandrika III, v. 17 to the effect that the "forefathers of the adoptive mother only are also the maternal grandsires of the sons given" differentiates between the adoptive and natural mothers, and not between an adoptive mother who actually joins in the ceremony of adoption and her co-wives. But if it is allowable to a Hindu to authorise one of several wives to take a child in adoption after his death, and in such case the widow so appointed can alone exercise the power as admitted by Mr. W.H. MacNaghten (see page 12 of his introduction), it is difficult to understand why he should have no discretion in selecting one of his wives to join with him in making an adoption during his lifetime. 13. The only authority cited in support of appellant's contention is the passage at page 12 of the introduction to Mr. W.H. MacNaghten's book on Hindu Law, but he expressly states that his remarks have reference only to the rights and privileges accruing to the adopting widow "from the simple fact of her having made the adoption, independently of any intention expressed or implied by the deceased, that such widow alone should be considered as the mother of the adopted child," and adds "if he declared this explicitly, the case would be different; or if such may be reasonably gathered to have been his intention, from some unequivocal indication of his will that his other wives should have no concern with the adoption." 14. In the present case there can be no doubt as to the fact of the adoption of the boy Navanita Krishna Marudappa having been made by the late zamindar in association with second respondent alone. She was the wife with whom he had lived since 1866 at least, whereas (as has been rightly found by the Judge) the appellant never lived with her husband; for there can be no doubt that the evidence adduced by appellant to prove that she ever cohabited with her husband or even went to the palace prior to March 1889 has been rightly disbelieved by the Judge--see paragraphs 50 to 54 of his judgment. It is equally beyond doubt that the deceased's intention was that second respondent and not appellant should occupy the position of mother to the boy adopted, and second respondent, and not appellant, was the 'receiving' mother, which is the literal meaning of the word 'pratigrahitri' which is translated 'adoptive' in Dattaka Mimamsa, VI, 50, and Dattaka Chandrika III, 17. The fact that adoptions under the Hindu law are for the benefit of the man and can be made independently of any wife, does not appear to be a circumstance from which it can be inferred that the man is not at liberty to select one of several wives to be the receiving mother of the boy to be adopted ; and as to Manu, chapter IX, v. 183 it certainly does not prove the appellant's contention, for notwithstanding the statement there made that if among all the wives of the same husband, one bring forth a male child, they are all declared, by means of that son, to be mothers of male issue: nevertheless the actual mother succeeds to the son in preference to her co-wives. There is, therefore, no reason why the mere fact of all the wives being considered as mothers of an adopted son should preclude the wife who is actually associated in the adoption from being considered as the mother, and the other wives merely co-wife mothers (Sapatnimata). 15. The preponderance of authority clearly supports the Judge's finding that where only one of several wives is associated with the husband in making an adoption, she is the preferential heir to the boy. 16. I would therefore dismiss this appeal with costs. Shephard, J. 17. I concur with Mr. Justice Best in his conclusion on the facts of this case. 18. It being assumed then that the late zamindar died, leaving him surviving two widows and a son adopted by him in conjunc-[283jtion with one of them, namely, Meenakshisundara, and that son having since died, the question to be decided is whether the widow Meenakshisundara or the other widow Annapurni has a preferential right to the zamindari, which being impartible can only be enjoyed by one of them. 19. Meenakshisundara's claim is based on the ground that she took part in the adoption and that in point of age--whether or not she was first married--she is the eldest of the two widows. On the other hand, the contention on behalf of the appellant Annapurni Nachiar is that she was the elder wife in the sense of having been first married, and that her rights in that capacity were not affected by the action of the zamindar in preferring to associate his other wife in the ceremony of adoption. 2. The question which arises is what is the precise relation between the co-wives of a Hindu who adopts a son and that adopted son? Are they all to be regarded as mothers of the son or does one of them only, and, if so, which of them stand in that relation? 3. It was conceded by Mr. Bhashyam Ayyangar, and there can be no doubt that the act of adoption inasmuch as it concerns the husband alone may be performed independently of his wife. Her consent is unnecessary. Nevertheless she, if she is the only wife, undoubtedly comes to be regarded as mother of the adopted son, and her parents come to be regarded as his maternal grandparents. Dattaka Mimamsa, Section VI, v. 50. To those parents of the adoptive mother he presents oblations. Generally his position in the family is assimilated to that of a natural-born son. In the case supposed, that of an adoptive father with one wife, the law itself designates the adoptive mother and no difficulty arises. Where, however, there are several wives it is said that the husband is at liberty to designate the one who shall take the place of mother, and that by this means the anomaly of assigning several mothers to the adopted son may be avoided. Otherwise, the adopted son having several mothers would have as many sets of maternal grand-parents from whom he might inherit and to whom he must offer oblations. The two chief authorities on the law of adoption throw no distinct light on the question. The expression 'adoptive mother' used in the verses cited from the Dattaka Chandnka and Dattaka Mimamsa is not used in reference to the case of several mothers; and evidently no distinction is intended to be drawn between the wife who has taken part in receiving the child and any other wife. It would appear, however, that these texts have been treated as supporting the proposition that where there are more wives than one, she who has received the boy should be regarded as his mother. In a case cited by Sir F. MacNaghten in his Considerations (page 171), published in 1824, the point is treated as beyond dispute. Authority had been given by the husband to his three wives to adopt a son, and if they could not agree he directed that a boy should be chosen by his first and second widows, or if they could not agree by his second and third widows. The widows not having agreed, the mother to whom the matter was referred selected one Taracomar, who had been nominated by the second widow. The question then arose which of the three had a right to receive him. "The law is clear and was undisputed," says the author, "the boy could not be received by the three widows jointly. He must be received by one of them, and would then be considered as the son of Luckinarain and the widow by whom he had been received; about this there was not, because there could not be, any dispute." 4. In 1864 the question was raised in Bengal in a case where, as in the present case, a claim was made by one of two widows whose husband had adopted a boy who had subsequently died. It was found as a fact that the deceased Kalee Kant had adopted the boy not as the son of the plaintiffs, but as son of his second wife Mon Mohinee. It was held that the latter was as adoptive mother the heir of the adopted son, Kasheeshuree Debia v. Greesh Chunder Lahoree W.R. (1864) 71. 5. In another Bengal case decided in the following year, it seems to have been assumed by the High Court that the co-wife would stand in the relation of step-mother to one adopted as the son of another wife. The point, it is true, did not arise for decision, and the remark upon it is only an obiter dictum Teencowree. Chatterjee v. Dinonath Banerjee 3 W.R. 49 50. 6. The opinion thus expressed in Bengal, while it does not appear to have been questioned in subsequent cases, has been adopted by commentators, Vyavastha Chandrika, page 161, v. 348; West and Buhler 1131. 7. The rule cited by West and Buhler, "The adopted son succeeds to all his step-mothers," is not at variance with the notion that one wife only is regarded as his mother. They cite, however, a passage from Colebrooke's Digest, which favours the opposite contention. In that passage (page 394) it is said that "if a son be adopted by a man married to two wives, he would have two maternal grandfathers and would claim as maternal ancestry both their lines of forefathers." The writer goes on to speak of this as a seeming difficulty and to suggest a mode of dealing with it. Having regard to the way in which the point is raised and the absence of authority cited, I do not think that this pronouncement of Jagannatha can be allowed to weigh against the authorities already cited. Another and more distinct authority, on which the Advocate-General relies, is to be found in the preliminary remarks forming an introduction to W. MacNaghten's Principles of Hindu Law. Dealing with the case of a husband leaving three widows, to one of whom he has given authority to adopt, he says the three widows of the same man are held to be in a legal point of view one and the same individual. The widow to whom the permission was given may indeed have the privilege of selecting the boy to be adopted, but the adoption being once made, he necessarily holds the same relation to all the three widows of his adopting father. He goes on, however, to say that the case would be different, if the husband declared his intention that the other wives should have no concern with the adoption, see page XII, This latter observation supports the view advocated by Mr. Bhashyam Ayyangar. The proposition that the three widows, alike the one who has been commissioned to adopt and the other two, stand in the same relation to the adopted son is in direct contradiction of the statement made by Sir F. MacNaghten. The author does not refer to this statement, nor indeed in the body of his work does he discuss the question. 8. It is contended that the opinion of the Bengal lawyers in favour of allowing a husband to constitute one of his wives the mother of his adopted son, is in some way connected with the notion entertained by Sir F. MacNaghten and others that plural adoptions were permissible. I fail to see, however, how the weight of his opinion expressed with reference to a case where one adoption was in question is lessened by this circumstance. And seeing that the Judicial Committee pronounced against plurality of adoptions as early as 1846, the contention clearly does not touch the case decided by the High Court of Bengal in 1864. Moreover, the liberty of the husband to make a second adoption was not founded on any right or interest supposed to be possessed by the wife, but on the absence of authority to the contrary and on the principle that many sons are to be desired. See Rungama v. Atchama 4 M.I.A. 1 67-95. 9. In my opinion there is no inconsistency between the recognized principles of the law with regard to adoption, and the position that one of several wives may be selected as the adoptive mother. The maintenance of this position does not militate against, but is rather in consonance with, the principle that the adoption is made solely for the benefit of the husband. It is a mistake to assume that the husband in thus selecting one of two wives necessarily intends to give her any material benefit. Ordinarily it might be expected that the adopted son would survive both the wives, and the fact that, in the other event, the favoured wife would succeed on the son's death would not be taken into account. What may be supposed to be contemplated is that the son will succeed on the death of that wife. It cannot be denied that a Hindu having two wives may confer on one of them an authority to take a child in adoption after his death, nor can it be doubted that the selected widow would alone and to the exclusion of her co-widows have discretion in the matter (2, Strange's Hindu Law, page 91). What would be the relation between the co-widow and the son adopted by the other widow under the authority so given does not appear to have been decided except in the case cited by Sir P. MacNaghten. Indeed, the question is not distinguishable from that raised in the present case. But it certainly would seem reasonable to hold that the widow, who being duly authorised, has taken a boy in adoption, and without whose act the adoption could never have taken place, is the mother of the boy rather than the others who had no concern in the matter. At any rate the case of a husband giving one of his two wives authority to adopt is an instance in which he, for his own purposes, is at liberty to give preference to one of them and thus enable her to defeat the expectations of the other. 10. The proposition that both wives or both widows together constitute the mother of the adopted son, notwithstanding any declaration of the husband to the contrary, gives an importance to the wives in the matter of adoption for which there is no justification. The institution of adoption requires that the son adopted should be deemed the son of the person who has taken him. It is only consistent with this theory that the wife of the adoptive father, if there happen to be one, should also be deemed the mother of the boy. But, in the case of several wives, the theory does not require that they all should be deemed to be his mother. 11. To hold this rather than to hold that this relation is that of step-son to the co-wives other than the one who has been associated in the act of adoption is to introduce a quite unnecessary fiction. 12. We are invited to consider the case in which a husband has made an adoption independently of both his wives and to answer the question which would then arise. The case is not one which is likely to happen, and it seems to me sufficient to say that, because a certain mode of designating the adoptive mother fails, it does not follow that no other exists. 13. In the present case it is sufficient to hold that where the husband has associated one wife with him in adopting a child, that wife is to be deemed mother of the child. This conclusion appears to me to be justified as well by principle as by authority. 14. It follows that the appeal must be dismissed with costs. Madras High Court The Chief Commissioner Of ... vs Zamindar Of Singampatti on 21 February, 1922 Equivalent citations: (1922) ILR 65 Mad 518 Bench: Ayling, C Trotter, Ramesam JUDGMENT 1. This reference arises out of the assessment of income-tax under Act VII of 1918 of the income, derived by the Zamindar of Singampatti from forests and fisheries within the ambit of his zamindari. The assessee objects to the assessment (1) on the ground that the income is agricultural income within the meaning of Section 4 of the Act and, therefore, not chargeable to income-tax; (2) that the assessment is illegal as contravening the terms of his permanent sanad for the zamindari and the provisions of Regulation XXV of 1802. 2. It is convenient to consider first the effect of the sanad, a copy of which has been filed before us, and the terms of the Regulation. The sanad is a lengthy document largely reproducing the language of the Regulation under which it was granted. Its general effect is this--in view of the bad effect of fluctuations in the assessment of land revenue, both in obstructing the development of the country and diminishing the security of property, the British Government has resolved "to fix for ever a moderate assessment of public revenue on the lands" held by Zamindars and others; and to that end has fixed the permanent annual jumma (total, demand) of the Singampatti zamindari at 2,300 star pagodas. Clause (4) of the sanad says: This permanent assessment of the land on your zamindari is exclusive of the revenue derived from the manufacture and sale of salt and saltpetre, exclusive of the sayer or duties of every description, whether by sea or land, the entire administration of which the Government reserves to itself; exclusive of the abkari or tax on the sale of spirituous liquors, and intoxication drugs; exclusive of the excise which is or may be levied on commodities or articles of consumption; exclusive of all taxes personal and professional, as well as of those from markets, fair and bazaar; exclusive of Lakhiraj lands (lands exempt from payment of public revenue) and of all other alienated lands paying a small quit rent (which quit rent uncle angeable by you, is included in the assets of your zamindari) and exclusive of all lands and Russooms heretofore appropriated to the support of Police establishment. The Government reserves to itself the entire exercise of its discretion in continuing or abolishing temporarily or permanently, the articles of revenue included, according to the custom and practice of the country, under the several heads above stated. 2. A later clause (No. 8) provides that no increase of the fixed jumma shall ever be made, whatever changes or improvements the grantee's interest or pleasure may lead him to introduce into the zamindari. 3. This is the grant under which the zamindari has been held since 1802. A dispute at one time arose as to whether it included the forest tracts with which we are now concerned, or only covered the villages and cultivated lands situated on the plains and contiguous thereto. This dispute was settled by the judgment of this Court in Sivasubramanya v. Secretary of State for India (1886) I.L.R. 9 Mad. 285. confirmed on appeal by the Privy Council in the Secretary of State for India in Council v. Nellakutti Siva Subramania Tenar (1892) I.L.R. 15 Mad. 101, and it was decided that the forest tracts a]so were included in the zamindari held under the ganad and that the latter was not confined to the plain villages and cultivated tracts. The learned Government Pleader has however argued that the peshkash was calculated on the rental of cultivated lands actually received by the Zamindar at the time of the grant, and that, no allowance was made for profits to be made out of forests and fisheries. He would have us therefore hold that, income from such sources was not included in the jumma, which was commuted into a fixed peshkash, and is therefore assessable to tax apparently under any designation. 4. Admittedly there is no record of the basis of calculation of the peshkash for this zamiudari. It is quite possible that only the rentals of cultivated lands were taken into account, receipts from other sources being at that time so small as to be negligible. But even assuming this to be so, it does not follow that the neglected items were not included in the commutation. On the contrary, it seems to us they must be held to be covered by the permanent annual jumma of the zamindari. But, in simple language, the effect of the document seems to be that, subject to the payment of the peshkash and the various demands referred to in Clause (4), the zamindari is given to the zamindar to make what he can out of it (the possibilities of improvements and developments being distinctly contemplated) free of all further demands from Government, If it had been intended to exclude profits from forests and fisheries, such profits would surely have been mentioned in Clause (4) along with such items as salt, sayer, abkari, excise and markets. We may add that if tike Government Pleader's contention is correct, then apart from the claim to ownership of the forests, which was first put forward by Government in 1865 and finally negatived by the Privy Council decision in 1891, it was at any time open to Government to add to the peshkash a direct cess on the forests, without having recourse to the indirect medium of the Income-tax Act. As far as f appears, there has never been any question of doing this. 5. It was argued that "Income-tax" is covered by the fifth item in Clause (4) ("all taxes personal and professional"). We do not think this argument can be accepted. The last sentence in the clause shows that as regards Clause (4) the Government had in mind items of taxation then in force; and income-tax is of much later intention. Exactly what imposts were had in mind under this head we arc not in a position to say; but, the allocation of the words "personal" and "professional" seems to suggest taxes on individuals by reason of their status (caste or calling). Power to levy a tax in the shape of a percentage on income derived from the zamindari itself would apply to the rental of cultivated lands just as well as to income from forests and would render entirely nugatory the guarantee of fixity of demand, which was the keynote of the Government's policy. 6. We can only conclude therefore that the peshkash was fixed in commutation, not only of the rentals of cultivated lands but also of all income which might be derived from forests or fisheries; and the sanad and Regulation alike make it clear that these incomes in the lands of the Zamindar were exempted from further taxation by the Government. 7. For the explicit nature of the exemption we may quote the words of Section 1 of the Regulation, which recites that Government has resolved "to fix for ever a. moderate assessment of public revenue on such lands, the amount of which shall never be liable to be increased under any circumstances"; and these words are reproduced in Clause (2) of the sanad with the immaterial substitution of the word "change" for "increase." 8. That this exemption applies to taxes which might be imposed thereafter, as well as to taxes in force at the time of the sanad, is clear from the judgment of the House of Lords in Associated Newspapers, Limited v. City of London Corporation [1916] 2 A.C. 429, and it is no less clear from the same judgment that although it is competent to the legislature to withdraw or modify such an exemption by subsequent enactment, this can only be done expressly and not in general terms or by implication. For the latter proposition we may also refer to Maxwell on Interpretation of Statutes (6th Edition) Chapter VII, Section 3. 9. There is nothing in the Income-tax Act to indicate that the attention of its framers was ever drawn to Regulation XXV of 1802; and we find it impossible to treat as a legal and effective abrogation of the exemption the words of Section 3: 10. Have us hereinafter provided, this Act shall apply to all income from whatever source it is derived, if it accrues or arises or is received in British India, or is, under the provisions of this Act, deemed to accrue or arise or to be received in British India." 11. In our opinion the assessee's objection based on the terms of the sanad is sound and must prevail. 12. It is therefore not necessary to determine whether income from forests and fisheries comes under the definition of "agricultural." At first glance it may seem difficult to include either, and especially the fishery income. It may however be pointed out that a reference to Murray's and Webster's dictionaries shows that the word "Agriculture," while sometimes used in the narrow sense of the art or science of cultivating the ground, is also used in a much wider sense so as to include even "forestry," according to Webster. In which sense it was used by the framers of the Income-tax Act would be a matter for determination and to this end it would not be out of place to consider the probable reason for the exemption of agricultural income from income-tax. No other reason is suggested than the equity of exempting from further burden income which had already paid toll to the State in the shape of land revenue. This applies equally whether the land is liable to ryotwari assessment, or whether Government demands have been permanently commuted as in the case of a permanently-settled estate. Logically, the exemption from further burden should apply to both; and it would seem that it ought to cover all sources of income which had been commuted under a permanent settlemaent. 13. We would answer the Reference by saying that the income from forests and fisheries in the Singampatti zamindari is not liable to income-tax. Madras High Court Sathappayyar vs Periasami on 13 August, 1890 Equivalent citations: (1891) ILR 14 Mad 1 Author: M Ayyar Bench: M Ayyar, Best JUDGMENT Muttusami Ayyar, J. 1. This is a regular appeal preferred by defendant No. 1 from the decree of the Subordinate Judge of Madura, in the plaintiff's favour. The appellant is the paradesi or representative for the time being of a religious foundation called Sat happayyar's mutt, which is situated at Sivaganga, in the district of Madura; and the respondent is the present zamindar of Sivaganga, who succeeded to the zamindari upon his father's death in 1883. 2. The matter in contest between them is the appellant's liability to be removed from possession of the mutt and its endowments in order that they may be made over either to the respondent or to an ascetic whom he may hereafter appoint. The respondent insisted on the appellant's removal from his position, first, because he was a married man living with his wives instead of being an ascetic who had renounced all secular ties, and, secondly, because he had violated the trusts of the institution by diverting the income of the endowment from its legitimate objects and misspending it upon his family and for his own purposes. Admitting his status as a married man, and the fact that he had two wives living with him, the appellant contended that the representative of the mutt was not bound to be an ascetic. He denied the alleged breach of trust and the respondent's right to interfere with the management of the mutt or its endowments. He urged further (i) that the Subordinate Judge had no jurisdiction to entertain the suit, (ii) that it was bad for misjoinder of causes of action, (iii) that it was not maintainable without the sanction prescribed by Section 539, Code of Civil Procedure, or Act XX of 1863, (iv) that the claim was res judicata, (v) that it was barred by limitation, (vi) that the respondent was not entitled to rely on matters which might have been, but had not been, urged by Ranee Kattama Natchiyar, his predecessor in title, in Original Suit No. 20 of 1867, (vii) that he had no cause of action at all, and that, if he had any, he could only sue to compel the appellant duly to perform the trusts of tbe institu-tion. The Subordinate Judge overruled all the preliminary objections, and held on the merits that the paradesi of the mutt must be an ascetic, that the appellant was guilty of breach of trust, and that the respondent was entitled to ask the Court to remove the appellant from his position and to provide for the due performance of the trusts of the mutt by a competent person. On this view of the case, he passed a preliminary decree declaring that the appellant had rendered himself unfit for holding the mutt and its endowments, that he was liable to be ousted therefrom, that unless he obtained an order from the Appellate Court within three months staying further proceedings, the Subordinate Judge would, after issuing a notification in as public a manner as the circumstances of the case might require, calling for candidates for the headship of the mutt and after consulting the wishes and opinions of the appellant and the respondent, proceed to appoint, as a new trustee, such person as might, by his qualifications and character, promise to advance the interests of the Institution, and after such appointment, to place the office and the properties in suit in his possession, removing the appellant therefrom. The Subordinate Judge directed also that the respondent's claim for mesne profits be dismissed and that the appellant do pay the respondent proportionate costs. Hence this appeal. The respondent too has objected to the decree under Section 561 of the Code of Civil Procedure. 3. The institution came into existence in June 1734 under document I, which purports to be a "charity-grant" and to evidence a gift of land made by the first zamindar of Sivaganga to his guru or religious preceptor Sathappayyar. Thus, the relation between the grantor and the grantee was that of disciple and preceptor. The grant was made in perpetuity and designed to endure so long as the sun and moon last and the line of disciples continues to exist. The grant purports also to have been made with power to alienate by sale or gift, but the power of alienation could only have been intended to be exercised consistently with the trusts mentioned in the instrument and without prejudice to the same. Though the transaction is described to be a gift of land, yet the document is termed a dharmasashanam or charity-grant. The land at Sivaganga, as comprised within the boundaries mentioned in the deed of endowment, is declared to be given in order that a muttam may be built thereon, that Sivayoga nishtai and other penances may be performed, and that the expenses of the necessary establishment may be paid. The first object of the gift or the first specific trust created by the document consists, therefore, in the erection and maintenance oil a mutt in perpetuity, in the performance therein by the paradesi or head of the mutt for the time being of Sivayoga nishtai and other penances, and in the maintaining of the necessary establishment. Two more lands are described in the document to be granted for the performance of the annual gurupuja and for dehapuja. 4. Sivayoga nishtai is a form of meditating on god Siva in conventional use among paradesis or men of piety, and it consists in uttering alternately for a certain time, once in the morning and once in the evening, the two sacred words of five and eight letters, respectively, called panchaksharam and ashtaksharam with one's attention devoutly centered in God and in the attitude prescribed for religious meditation. In substance the expression denotes a form of worship and prayer. The expression "gurupuja" signifies the annual ceremony performed by the head of the mutt for the time being in honour and for the spiritual benefit of his guru; and the word "dehapuja" means, in polite language, the self-support of a person who has a sacred or religious status. 5. Apart from the specific trusts indicated by the terms of the grant, there are two more trusts to be noticed. The first of them consists in the distribution of food among paradesis or Sudra ascetics and others whenever gurupuja is performed, but it must be observed that it is not an independent trust, but only the accompaniment or incident of gurupuja according to religious usage. The other trust consists in opening and keeping up a water-shed in the mutt for the supply of drinking water to the poor during the hot season. Though the appellant denied in his evidence that it was customary to open and maintain a water-shed as part of the mutt charity, yet he admitted that the fact was otherwise in Exhibit P, as was deposed to by several witnesses cited by the respondent. The maintenance, therefore, of a water-shed for supplying drinking water during the hot season as part of the mutt charity rests on custom rather than on the original grant. Document I states that succession to the office of paradesi of the mutt shall be in the line of disciples, but it is silent as to how and by whom the successor is to be chosen. It was, however, finally determined in Original Suit No. 20 of 1867 that the right of appointment vested in the head of the mutt for the time being, and that it did not require to be confirmed or ratified by the zamindar. It is also in evidence that the paradesi presiding over the institution first makes a person his disciple by initiating him in what is called "Brahmamantram," then teaches him "Sivayoga nishtai"and other penances and appoints him as his successor. After the death of the original grantee there have been five cases of succession, as shown below: 1 | _____________________________ | Guru Sathappayyar or | | original grantee. | _____________________________ 2 | _____________________________ | Kailasa | | Sathappayyar. | _____________________________ 3 | _____________________________ | Muttunatha | | Sathappayyar. | _____________________________ 4 | _____________________________ | Chitananda | | Sathappayyar. | _____________________________ 5 | _____________________________ | Muthananda | | Sathappayyar. | _____________________________ 6 | _____________________________ | Gauriananta | | Sathappayyar. | _____________________________ 6. As regards the status of these representatives of the mutt, the first three had renounced all secular ties and then entered the order of ascetics or paradesis. The fourth was a married man who left a widow surviving him, the fifth was a widower when he became a paradesi, and the sixth is a married man living with his two wives. It would seem that the third paradesi died without appointing his successor, and that it was the zamindar who selected him. It was probably in advertence to this fact that the High Court observed in its judgment in Second Appeals Nos. 569 of 1870 and 226 of 1871 that it was not to be understood as expressing any opinion against the zamindar's right to appoint a successor in the event of the last holder of the office failing to do so. The foregoing is a summary of facts throwing light on the nature and constitution of the mutt and on its trusts so far as they can be collected from the terms of the grant and the usage of the institution. 7. As to the preliminary objections to the suit, the question of misjoinder is not pressed in appeal. The contention regarding jurisdiction is that under Act XX of 1863, the District Court is the proper forum. This would be so if the institution were endowed and dedicated to any section of the public either as a place of worship, such as a temple, or a religious establishment where religious instruction is to be had like a public mutt. For Act XX of 1863 only replaced Regulation VII of 1817 so far as religious institutions are concerned, which, as shown by its preamble and its provisions, dealt with trusts, express or implied, created for public purposes, But the grant in the case before us discloses no intention to confer a benefit either upon the people in general or upon any class of sectarians; on the other hand, the grantor desired only to perpetuate the spiritual family of his guru by providing for succession in the line of his disciples and the religious services designated Sivayoga nishtai and gurupuja performed by the grantee by enjoining their continuance by his disciples. Neither the general public nor any section of the people had an interest either in the erection and maintenance of the mutt or in the performance of the prescribed religious duties, the motive for the grant being the grantor's conviction that the performance of such services in perpetuity by the class of persons named by him in the mutt and with the aid of funds provided by him was an act of religious charity which would ensure the prosperity of his family. The original grantor and his descendants are thus the only persons interested in seeing that the institution is kept up for their benefit in accordance with the intention of the former. Although a few paradesis and others are fed when gurupuja is performed and a water pandal is maintained in the mutt during the hot season, these were not contemplated as independent charities in which any class of the public was to have a direct and independent interest. The decision in Jusagheri Gosamiar v. The Collector of Tanjore 5 M.H.C.R., 334 proceeded mainly on the ground that the Board of Revenue were bound under Section 4 of Act XX of 1863 to restore every endowment created for some religious purpose, which was in their possession, to the trustee entitled to its management. In Agri Sharma Embrandri v. Vistnu Embrandri 3 M.C.R., 198 it was held that the jurisdiction of the ordinary Courts was not excluded when the plaintiff sued only to establish his right to share in the management of a temple. Neither of these decisions is in point. It may be, as argued by appellant's counsel, that the oral evidence for the respondent is meagre so far as it tends to show that the mutt is the zamindar's private charity, but it is materially corroborated by the nature of the grant and the description of religious and other duties required to be performed in perpetuity. I am of opinion that the Subordinate Judge is well founded in holding that the trusts of the institution concerned in this litigation are in the nature of private trusts. 8. Another contention was that the zamindar had no cause of action. This rests mainly on the fact that Exhibit I does not state expressly that the grant is to be resumed, and that the paradesi is to be removed from his position as the representative of the mutt either if it is not kept up or if the prescribed religious service is not duly performed, but that on the contrary it enables the grantee and his disciples bo alienate the land given by sale, gift, &c. I consider that this contention was properly disallowed by the Subordinate Judge. Exhibit I shows that the land in dispute was given for a specific religious purpose in order that that purpose might be carried out in perpetuity for the benefit of the grantor's family, and the respondent, as the representative of that family for the time being, is entitled to step forth when that purpose is neglected and the produce of the land is misapplied, and to ask the Court to prevent the misappropriation, and to see that the income of the endowment is applied to its legitimate purposes. 9. Again, Exhibit E, the inam register of Marudavayal, describes the grant as jivitam for the support of Sathappayyar's mutt at Sivaganga. Exhibits K, L and M, which are inam title-deeds, describe the land given as held in trust for the support of the mutt, and confirm the grant as one not to be interfered with only so long as the conditions of the grant are duly fulfilled. Exhibits A, N and O also lead to the conclusion that the grant was conditional and not absolute. 10. The objection that the suit could not be maintained without the sanction prescribed by Section 539 of the Code of Civil Procedure is also not tenable, the section purporting in its terms to relate to trusts created for public purposes. The preliminary questions which remain to be considered are those of limitation and res judicata. As to the former, the suit is certainly not barred, the object with which it is brought being to prevent a specific endowment from being diverted from its legitimate object and to re-attach it to that object. It is not simply a suit to remove a person from the management of an endowment on the ground that, although it is duly administered, the defendant has no personal right to administer it. If the appellant's removal from his position as paradesi of the mutt is part of the relief claimed in the plaint, it is only claimed as necessary to ensure due appropriation of the endowment to its original trusts. In this view of the nature of the claim, it falls, as suggested by the respondent's pleader, under section [Section 10:- Notwithstanding anything herein before contained, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property, shall be barred by any lenght of time.] Suits against express trustees and their represen-tatives. of the Act of Limitations. Article 143:- Description of suit. Period of limitation. Time from which period begins to run. Like suit when the plaintiff has become or breach of condition. Twelve years. When the forfeiture is incurred or the condition is broken.] to which our attention has been drawn on the appellant's behalf, is not applicable to suits in which the property has vested in trust for any specific purpose and there has been a continuous breach of trust. 11. Neither is the respondent's claim res judicata by reason of the decree in Original Suit No. 20 of 1867. That was a suit instituted by Ranee Kattama Natchiyar and her lessee to recover half of the village of Marudavayal from the present appellant together with monies collected by the execution-creditor in Original Suit No. 107 of 1865 and to set aside the attachment, made at his instance, in execution of the decree in the same suit. The ground of claim then urged as against the appellant was that the right of appointing heads of the mutt in dispute vested in the representatives of the grantor and that no zamindar appointed the appellant to the office. The High Court held on second appeal that the appellant was appointed by his predecessor in office, that the right of appointment vested in the latter unconditionally, and that the zamindar had no such right as he claimed except when the representative of the institution died without nominating his successor. The ground upon which the present suit is brought is that by reason of his status as a married man and of misappropriation of the endowment to his own purposes the appellant has become unfit to retain his office or continue in charge of the mutt and its endowments. Neither of these matters was the subject of adjudication in the previous suit, and in this sense the claim is not res judicata. But it is argued for the appellant that he had married prior to his accession to the office in 1858 and that his status as a married man and his omission to rebuild and live in the mutt were grounds of attack upon which the ranee did not choose to rely, though they were available to her when she brought Original Suit No. 20 of 1867, and that her omission to do so precludes the respondent from urging them now in support of his claim. It may be that such omission is evidence that there was no breach of trust, but I am not prepared to say that when the breach of trust is clear, its condonation by a prior beneficiary is binding upon his successor so as to enable the trustee to take advantage of his own wrong and justify the continuance of the breach. In this case the disqualification and the misfeasance imputed to the appellant are said to have continued even subsequent to the former suit and up to the date of the present action. 12. Passing on to the merits, the first question to be considered is whether appellant's status as a married man incapacitates him for presiding over the mutt. The Subordinate Judge has decided it in the affirmative, but the contention for the appellant is that a married man is not incompetent to preside over the mutt. The usage of the institution conveys the impression that either an ascetic or a married man is eligible for the office. In former times there was a conventional notion that the management of a religious charity by an ascetic was more disinterested than that of a married man, and, therefore, likely to prove more beneficial, but when the usage of the institution is clear on this point, we are not at liberty to ignore it. In ordinary parlance, the words paradesi and mutt, no doubt, designate a Sudra ascetic and the institution presided over by him, but they are of the mselves inconclusive, since there are mutts in this presidency of which the representatives are not ascetics. Though the direction in Exhibit I is that succession should be in the line of disciples, it loses much of its significance when it is remembered that the succession ordained by the copperplate grant of 2nd May 1733, which was produced and acted upon in Original Suit No. 20 of 1867, was that of sons and grandsons. In Second Appeal No. 569 of 1870, which arose from that suit, the High Court, which then had before it both that grant and Exhibit I, observed that the phrase, in regular succession of sons and grandsons, should not be taken literally, but that succession by disciples qualified to discharge the peculiar trusts was in the contemplation of the parties. Referring to the appellant's evidence that the paradesi for the time being makes one his disciple by initiating him in what is called Brahma mantram and qualifies him for discharging the peculiar trusts of the mutt in question by teaching him Sivayoga nishtai and other penances, it does not appear that the successor must belong to the order of ascetics, though it is clear that he must be a qualified disciple in the sense indicated above. This view receives strong corroboration from the course of succession from the early part of this century. That the fourth paradesi left a widow surviving him at his death is clear from the judgment in Original Suit No. 110 of 1838, Exhibit F. The Sudder Amin Pundit says distinctly that "since it is proved that the defendant is a woman married by the said Sathappayya (the fourth paradesi), and that the said person lived with the said defendant, it follows that the plaintiff (fifth paradesi) should give food and raiment to the said woman and protect her to the end of her lifetime." To this observation the Subordinate Judge declines to give effect and remarks that the Sudder Amin Pundit erred in directing the fifth paradesi to maintain the widow of the fourth, and that it might be that the latter did not live with his wife after he had become paradesi. But I do not deem it proper to impugn a judgment which has become final and hazard a statement at variance with it on mere conjecture. Another material fact overlooked by the Subordinate Judge is the conduct of successive zamindars from the time of the fourth paradesi to the date of the present suit. It is urged that the fifth was a widower, but there is nothing to show that he belonged to the order of ascetics as contradistinguished from that of grahastas. Nor does it appear that the Court of Wards raised any objection to the appellant's succession in 1858, whilst his evidence is that he was then not only married but had two wives as at present. It is, again, strange that Ranee Kattama Natchiyar should have ignored his status as a disqualification, if, as is now suggested, it should have rendered him according to the known usage of the institution ineligible for the office. The result of the evidence is that of the six paradesis who represented the mutt during a period of about 150 years, the first three belonged to the order of ascetics, the fourth was a married man, the fifth was a widower, and the sixth is a married man, whilst the grant did not enjoin, either expressly or by necessary implication, the status of an ascetic as a qualification, and whilst for more than fifty or sixty years there has been no trace of a consciousness either among the zamindars or the paradesis that such status is indispensable. The conclusion, therefore, I come to is that the paradesi for the time being may be either an ascetic or a married man, but that he must be initiated by his predecessor in Brahma mantram and in Sivayoga nishtai and other penances and to this extent be a qualified disciple. 13. I agree, however, in the opinion of the Subordinate Judge that the trusts of the mutt have altogether been violated, and the income of the endowment has been misapplied for a series of years. It is proved that the mutt building has ceased to exist and that no attempt has been made to restore it for more than twenty years. Though the appellant states that he attempted twice to rebuild it, but that he was prevented by the zamindar from doing so there is no evidence to corroborate his interested statement. It appears also that no Sivayoga nishtai or any other penance nor gurupuja has been performed for more than ten years. Several witnesses cited by the respondent depose to that effect, and the appellant has called no evidence in answer to it, although considerable evidence must be available, if, as stated by him, he has continued to perform them in his own house. Another act of mismanagement shown by the evidence is the mortgage of portions of the endowment without adequate necessity. Although the alienees state that the money raised by the mortgage was applied to the payment of arrears of poruppu, the appellant has produced no evidence to explain why the poruppu was not regularly paid from the income derived from the lands. According to the Kurnams of the villages in which the lands are situated their average income is sufficient for the payment of poruppu and for the due execution of all the trusts. It is, again, in evidence that whilst no attempt has been made to keep up the mutt or restore it, the income of the endowment has been spent upon the improvement of the appellant's family house. The period during which these acts of mismanagement have continued shows that it has been wilful, and their continuance after the promise made at the inam inquiry to restore the mutt and after the execution of the kararnama A indicates that the mismanagement has been perverse as well as wilful. I, therefore, concur in the opinion that the appellant has been guilty of breach of trust for a series of years, and that in the circumstances of this case, it is necessary to remove him from management in order to ensure due performance of the trusts of the institution. On this ground I am of opinion that the appeal fails, and that it must be dismissed with costs. 14. As to the memorandum of objections, the first question is whether, in the contingency that has arisen, the respondent is entitled to the reversion of management of the endowment. By Exhibit I it is provided that the endowment should continue in perpetuity and that it should be administered by the head of the mutt for the time being. Consequently no right can be deduced from its terms for the respondent either to resume the endowment or to manage it in person. Though the trust created is one intended for the exclusive benefit of his family, all the members of that family are not plaintiffs in this suit. The only right which the respondent has as the representative and manager for the time being of the grantor's family is a right to claim due performance of the trusts of the institution by a person competent to perform them according to the intention of the grantor and the usage of the institution. 15. Another contention is that the removal of the appellant creates a vacancy, that the power of appointment vests in the zamindar for the time being, and that the appellant, who is found to be guilty of breach of trust and dismissed from his office, ought to have no voice in the appointment of a new trustee. The appellant, who is dismissed, has lost his status as a paradesi of the institution, and the right to name his successor, which is an incident of that status, cannot subsist after the status itself has been lost. The direction, therefore, so far as it recognizes any right in the appellant to name a successor, must be set aside. 16. In the absence of a qualified disciple in whom the right of succession has already vested, the beneficiaries, who are the members of the zamindar's family, are the only persons interested in the appointment and entitled as such to express an opinion regarding the fitness of the proposed new trustee for the office. The case is then analogous to that of a vacancy arising from the death of a paradesi without appointing his successor, The proper decree is to declare the respondent's right to appoint a person qualified to discharge the peculiar trusts as new trustee with the concurrence of the rest of his family, to direct him to do so within a given time, and, upon his doing so, to confirm such appointment after notice to the other members of the respondent's family, and to direct that upon such confirmation the properties in dispute be made over to the person newly appointed to be administered so as to carry out the trusts of the institution in accordance with its usage. The decree should further direct that on default of the zamindar's doing so, the suit do stand dismissed with costs. I see no reason to interfere with the decree of the Subordinate Judge so far as it dismisses the respondent's claim to mesne profits. The decree appealed against will be modified as indicated above. 17. There will be no separate costs on the memorandum of objections. Best, J. 18. This is an appeal by the defendant against the decree of the Subordinate Judge of Madura (Bast) declaring that the appellant has rendered himself disqualified to hold the office of head of a certain mutt and is liable to be ousted therefrom and from the possession of the properties appertaining thereto. 19. The suit was brought by the zamindar of Sivaganga, alleging that the properties in question were given by the zamindar's ancestors "to the guru Sathappayyar in order that a mutt might be built on item No. 1 of the plaint schedule and concentrated meditation on Siva and other devotions might be performed, for the expenses of gurupuja and charities, with a view to the everlasting prosperity of the members of the zamindar's family," that the said properties were held by Sathappayyar, and after him by succeeding gurus till they came to the possession of the present appellant, who has disqualified himself for holding the mutt and its properties by reason that he, (a) instead of being an ascetic, has intercourse with women and indulges in other pleasures, and, (b) instead of appropriating the income of the mutt to the devotions and charities thereof, he expends the same on women and his issue and for his own purposes." 20. It is further alleged in the plaint that, in consequence of misconduct as above on the part of appellant, he was, in January 1883, removed from the headship of the mutt by plaintiff's father, who also attached the properties of the mutt, since which appellant "without any regard to the devotions and charities which should be conducted in the mutt, with a view to the benefit of his issue and departing from the course of succession in the line of disciples," has arranged that his son should get the properties in dispute after his death. Thus the son was included as the second defendant in the suit, and though the decree is silent on the point, the Subordinate Judge has in his judgment stated that his appointment by the first defendant (now appellant) is "clearly fraudulent and unsustainable." The son, however, is not a party to this appeal. 21. The first objection now urged is that the Subordinate Judge had no jurisdiction to entertain the suit, it being one coming within the scope of Act XX of 1863. But even assuming that the suit might have been brought under that Act, I do not find anything in that Act making it obligatory on parties to proceed thereunder and not otherwise. Section 14 merely provides that any person or persons interested in a temple "may, without joining as plaintiff any of the other persons interested therein, sue before the Civil Court," (i.e., the District Court, see Section 2). As remarked in Syed Amin Sahib v. Ibram Sahib 4 M.H.C.E., 112--"The enactments in Sections 14 and 15 are enabling and intended to give to the persons described and who are individually not interested otherwise than in connection with others the right to sue individually;" and the proviso in Section 18 that "no suit shall be entertained under this Act without a preliminary application being made to the Court for leave to institute such suit" was, I take it, intended for the protection of trustees, &c, from a multiplicity of suits. The wording of Section 14 is merely enabling and permissive and intended to apply to the case of only a few of the interested parties suing in the interest of the public. Where all the parties interested join in bringing the suit, and where, therefore, no special sanction of the Court is necessary, I see no reason why the suit should not be entertained in a Court having jurisdiction to entertain ordinary suits of the same value. Moreover, in the present case, the institution happens to be a private one created for the benefit of the plaintiff's family. I agree, therefore, with the Subordinate Judge in finding that this objection is not valid. 22. It is next objected that the suit is bad for want of sanction of the Collector under Section 539 of the Code of Civil Procedure, if not for want of sanction of the District Court under Section 18 of Act XX of 1863. It follows from what I have already said that I do not think the case is one requiring the previous sanction of the District Court under the latter Act, which, it is to be observed, only requires such previous sanction for the entertainment of a suit under that Act--and the present is not a suit brought under that Act; while as to Section 539 of the Code of Civil Procedure, not only has it reference to public charities, but just as is Section 14 of Act XX of 1863 so also is this section merely enabling and permissive, its object being to allow of two or more persons interested in a public institution to sue without joining all the others interested in the same, the previous sanction of a public official being prescribed in order to prevent a multiplicity of suits which might otherwise be brought. 23. It is next contended that the present suit is barred by Sections 13 and 43 of the Code of Civil Procedure as the present objection that appellant is a married man living with his wife and children might and ought to have been taken in the former suit brought against him by the late Ranee of Sivaganga-- the judgments in which suit (1) in the Court of First Instance, (2) in the Appellate Court, and (3) in Second Appeal respectively are filed as Exhibits G., H. and J. That was a suit to remove this appellant from the office of guru on the ground that he had no right to it in consequence of his not having been appointed by the zamindarni. If the fact of his being a married man disqualified him for the office, I think that this objection to him would not then have been lost sight of, for his marriage undeniably dates from a period prior to that suit. Though this objection to him might have been taken, then I am not prepared to say that it ought to have been taken. In any case the present suit alleges acts of misappropriation of the mutt property of more recent date, which could not have been urged in the former suit. I agree, therefore, with the Subordinate Judge in holding that the present suit is not barred either as res judicata or under Section 43 of the Code of Civil Procedure. 24. We now come to the main question which is the subject of the fourth issue recorded in the Court below in the following words: "whether the allegation in clauses (a) and (b) of paragraph 3 of the plaint are true, and if so, has the first defendant become disqualified to continue as the head of the mutt?" 25. Clauses (a) and (b) of paragraph 3 of the plaint are as follows: (a) Instead of being an ascetic he keeps intercourse with females and pursues other pleasures. (b) Instead of appropriating the income of the said mutt for the up-keep of the devotions and charities of the mutt, he expends it on women and his issue and for his own purposes. 26. It is admitted at the hearing that by the "females" in clause (a) and "women" in clause (b) are meant only the defendant's wives, that no actual immorality is laid to his charge, and that the meaning of these two clauses is nothing more than that he lives with his wives and children and maintains them with the produce of the lands given for the maintenance of the mutt. 27. The question, therefore, narrows itself to this:--"Is defendant disqualified for the office of guru by the fact of his living with his wife and children and devoting to their maintenance the produce of this property given as an endowment for the office of guru?" 28. My opinion as to the first part of this question is that the mere fact of the defendant being a married man cannot be held to disqualify him for the office of paradesi of the mutt. Had such been the case, no doubt the objection would have been taken in the Ranee's suit of 1867. Moreover, it is seen from the evidence that the two immediate predecessors of the defendant were both married men and it is also in evidence that defendant was already married when he succeeded to the office of paradesi of the mutt in question. Further, as is seen from the judgments in the suit of 1867, in the copper plate produced in that suit, the succession prescribed was to "sons and grandsons," see Exhibit J. On a consideration of all these circumstances I come to the conclusion that the mere fact of the defendant being a married man and living with his wives and children is not a valid ground for removing him from his office of paradesi of the mutt. 29. But there remains the question whether he has by misappro priating the proceeds of the endowments rendered himself liable to dismissal from this office. It is proved that the mutt itself has ceased to exist and no attempt appears to have been made to restore it notwithstanding the defendant's undertaking at the inquiry before the Deputy Collector on behalf of the Inam Commissioner (in 1864) that he would "build a separate muttam within a period of six months" (Exhibit E) and his subsequent promise to the same effect in the karar A, dated 22nd June 1878. At the same time the defendant's own family house has been improved. Moreover it is shown that the ceremonies for the performance of which the endowment was made have not been performed for some years past. The defendant has entirely failed to prove the performance of these ceremonies at his house, as stated by himself examined as the sole witness for the defence. He has also admittedly mortgaged portions of the endowed property, whereas, as appears from the evidence of the kurnams examined on behalf of the plaintiff, the income of the endowed lands was sufficient for both payment of the poruppu and also for the expenses of the pujas, etc., for which the endowment was made. There can be no doubt, I think, as to the fact of the defendant having for years past misapplied the income of the endowed lands to the maintenance of his wives and children and to the improvement of his family house. This fact alone is sufficient to justify his removal from the office and to uphold the Subordinate Judge's decree to that effect. 30. I would therefore uphold the decree of the Court below modified as suggested by my learned colleague. 31. I agree in disallowing mesne profits and dismiss the respondent's objections taken under Section 561 of the Code of Civil Procedure except in so far as it relates to the first defendant having a voice in the appointment of the new trustee. Madras High Court Senthathikalai Pandiya ... vs Varaguna Rama Pandia ... on 24 April, 1953 Equivalent citations: AIR 1954 Mad 5, (1953) 2 MLJ 387 Bench: S Rao, S Rao JUDGMENT 1. This is an appeal under Section 51 Madras Estates (Abolition & Conversion into Ryot-wari) Act (Act 26 of 1948) (hereinafter called the "Act",) against the decision of the Tribunal to this Bench, which was constituted a Special Tribunal by the Hon'ble the Chief Justice under the said section. 2. Under Section 42 of the said Act, appellant 1 made an application to the Tribunal to direct payment of the entire sum of advance compensation deposited with the Tribunal in respect of the zamin estate of Sivagiri in Tinnevelly district. The zamin-dari of Sivagiri was taken over by the Government under the Act and a sum of Rs. 2,40,000 was deposited with the Tribunal as advance compensation. The father of appellant 1 Varaguna Rama pandia Chinnathambiar was the holder of the zamindari, which is an ancient impartible estate, included in the schedule to the Madras Impartible Estates Act (Act 2 of 1904). The management of the estate however was taken over in 1941 by the Court of Wards, at the request of the zamindar under the Madras Court of Wards Act (Act 1 of 1902) --vide Section 18. Appellant 1 is the eldest son of the zamindar. Respondent 1 In the appeal is the zamindar, who is a ward of the court of Wards and respondent 2 is his second son. On 5-2-1945, the zamindar executed a document, which is styled "relinquishment deed", Ex. A. 1, in favour of appellant 1, the eldest son and respondent 2, the second son represented by his guardian the eldest son. Under this deed, the zamindar purported to relinquish the said zamindari including the properties described in the schedule attached to the deed in favour of the two sons in consideration of : (1) a sum of Rs. 11,000 paid already to the father; (2) Rs. 4000 and Rs. 10,000 respectively to be paid to him and his second Rani as per the promissory notes executed by the eldest son on the same date 5-2-45; (3) a promise to pay an allowance of Rs. 300 per mensem to the zamindar and Rs. 450 per mensem to the second Rani for the first five years to commence from the date on which the estate is handed over by the Court of Wards; (4) an increased allowance of Rs. 700 per mensem for the second Rani after the first five years; (5) a right of residence in one of the palaces at Sivagiri for the zamindar and his second Rani and her sons and other members of the family with a right to ingress into and egress out of the residence; (6) other rights granted under the covenants made by the memorandum of agreement of 5-2-1045. The capitalised value of the maintenance and the lump sum payments made or agreed to be paid was over Rs. 1,70,000. The operative part of the deed is : "I do hereby relinquish, renounce and surrender the impartible zamindari of Sivagiri including the properties described in the schedule below and my right in and to the same in favour of you the remaining members of the coparcenary. I do hereby declare that as the result in law of my such relinquishment, renunciation and surrender, No. 1 among you becomes presently the holder and proprietor of the said impartible zamindari of Sivagiri, the right of succession of No. 1 among you to such a state being accelerated by virtue hereof so as to come into effect on the execution of this deed of relinquishment. I dp hereby declare that I have no further right in or to the said impartible zamindari of Sivagiri except the sums of money, palace rights, monthly allowances and special allowances for festival and all ceremonies granted to me, my second Rani, her heirs and provided for herein above and by the memorandum of agreement of even date as aforesaid. I do hereby declare that No. ,1 among you is at liberty to recover possession and management of the estate from the Court of Wards. I do hereby further declare that No. 1 among you shall by virtue hereof be the hereditary trustee of all devastha-nam chatram and other religious and charitable institutions within the zamindari of which the -zamindar of Sivagiri for the time being is the hereditary trustee". 3. The memorandum of agreement referred to herein however was not filed. After this deed, the zamindar and his son made an application to the Court of Wards to release the estate from its management and to hand it over to the eldest son. This request was rejected by the Court of Wards by its order (Ex. B-1) dated 11-7-1945 as the relinquishment deed by the zamindar was void under Section 34, Court of Wards Act and was, therefore, inoperative to pass any title to the zamindari to the eldest son. There was an appeal to the Government against the decision of the Court of Wards but that appeal also was unsuccessful -- vide proceedings of the Government (Ex. E-3) dated 27-2-1946. 4. The claim by the eldest son before the Tribunal was that by virtue of the relinquishment deed, he was entitled to the advance compensation deposited by the Government with the Tribunal as he became the owner of the impartible estate. The claim was rejected by the Tribunal on the ground that the deed was ineffective to vest any title in appellant 1 and that it was also hit at by Section 34, Court of Wards Act as it virtually amounted to a transfer of the estate by the father to the son. It is against this decision that this appeal was preferred. 5. The learned counsel for appellant l raised three points in the appeal, firstly, that under the document the zamindar renounced the estate in favour of his son and it was therefore effective to make him the owner of the impartible estate on the analogy of renunciation of the interest of a coparcener in favour of other coparceners in the case of partible joint family property and secondly on the analogy of the surrender under Hindu law of the estate by a limited owner to the nearest reversioner. It was maintained that the document operated as a self-effacement of the interest of the father in the property so as to let in the next heir entitled to succeed to the impartible estate on the principle of survivorship as the property is ancestral Joint family property. Lastly it was contended that the notification by the Court of Wards was without jurisdiction as the very foundation for the exercise of that jurisdiction under Sections 18 and 19 of the Act was a declaration under Section 17 that all the coparceners were previously declared to be disqualified under Section 9 and as this was not done, the notification is void. 6. It is admitted that there were other sons of the zamindar, who were not parties to the deed of relinquishment. The last argument based on Section 17, Court of Wards Act need not detain us longer as the question was never raised before the Tribunal and it is too late for appellant 1 to raise it now. The argument assumes that all the sons of the zamindar were holding the impartible estate as coparceners. This argument is also the basis for the first of the three above contentions and, as will be shown later, there is no basis for the assumption that the impartible estate is held in coparcenary by all the persons constituting members of the joint family. This objection must, therefore, be overruled. 7. The point most strongly pressed and strenuously argued on behalf of appellant 1 was the first of the above three contentions. The basis for the argument is that a junior member of an ancient joint family impartible estate has a present subsisting interest in the property practically as a coparcener and the effect of renunciation or relinquishment is only to enlarge that right and to reduce it to possession. The learned counsel for appellant 1 is driven to adopt this position, as the very foundation on which the doctrine of renunciation is rested in the case of partible property is that every coparcener is the owner of the entire family property and has joint possession and the effect of renunciation by one coparcener of his interest in the property is merely to extinguish his right and to reduce the number of shares in the property, thus enlarging the right of the other coparceners. It is an established principle that renunciation to be effective must be in favour of all the remaining coparceners and even if renunciation is in favour of one, it will enure to the benefit of all the remaining coparceners. This principle of renunciation follows, in my opinion, from the conception of the holding of joint family property by coparceners under Mitakshara. law. The very definition of 'vibhaga' or partition in Mitakshara Chapter I Section 1. PI. 4 brings out clearly the fact that there is a common ownership of all the persons of the joint family property and the effect of the partition was only to particularise the right to specific portions of the aggregate of the property so as to create individual ownership. A partition is the "adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several ownership." "Anekhaswamvam" is the ownership of many persons of the Dravyasamudayavishaya, i.e., the aggregate wealth, which implies that each is the owner of the whole Until there was a 'vibhaga' or partition by restricting his right to a particular portion of the property to be held by him in his individual right. Partition in a sense, therefore, is a restriction of the right of an individual to a specified portion of the property and an exclusion of the rights of the other coparceners in that portion which was allotted to a coparcener. So long therefore as common ownership continues accompanied, by joint possession, when one member walks out of the property renouncing or relinquishing his interest, the only effect is to reduce the number of coparceners entitled to share in the properly and increase the quantum of the right of the other coparceners, in law therefore, renunciation of relinquishment in such a case does not operate to transfer any right by one coparcener to the other or others but is merely an extinguishment of his interest. The other coparceners dp not by mis process acquire a new title by virtue of a transfer. They were the owners of the whole property and continue to be the owners notwithstanding one member went out of the coparcenary relinquishing his rights in the property. This aspect was considered by the Judicial Committee in -- 'Altai Venkatapathiraju v. Venkatanarasimharaju', AIR 1936 PC 284 (A), in the passage, which occurs at page 267 : "It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate. But no definement of shares need take place when the separating member does not receive any share in the estate but renounces his interest thereto. His renunciation merely extinguishes his interest in the estate,. but does not affect the status of the remaining members 'quo ad' the family property and they continue to be coparceners as before. The only effect of renunciation is to reduce the number of the persons to whom shares would be allotted if and when a division of the estate takes place." It is necessary to bear in mind these elements of the doctrine of renunciation or relinquishment applicable to the case of partible property in examining the soundness of the contention urged on behalf of appellant 1. It is no doubt true that in the case of ancestral joint family impartible estates, the devolution of the property after the death of the holder for the time being is not according to the rule of succession applicable to separate or self-acquired property governed by Mitakshara law but it is the rule of devolution applicable to joint family property, i.e., the principle of survivorship which of course is modified by custom to the extent that the seniormost member of the family takes it by survivorship to the exclusion of others. For the purpose of ascertaining the heir. the property is treated as joint family property and so long as the family continues joint, the next heir has to be determined by the rule of survivorship and not succession. It is open to establish that the family ceased to be Joint family for the purpose of succession by establishing an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate and this Is practically the only mode by which an impartible estate ceases to be joint family property. It has been recognised that the right to take the property by survivorship is not like the right of a reversioner to succeed to the estate as 'spes successionis' but a present contingent right which could be renounced or surrendered but the right is only to take the estate after the death of the holder for the time being. The point is whether during the lifetime of the holder, a person entitled to take the estate by survivorship, an impartible estate being in the nature of joint family property, has any present Interest in the property itself in the same manner in which a coparcener has in the case of ordinary partible property. 8. The law relating to impartible estates had to undergo several vicissitudes and some of the ob serrations of the Judicial Committee in the leading decisions on the point may seem to be irreconcilable. But it may now be taken that the following principles were settled by decisions. Impartiality is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to Section 4, Madras Impartible Estates Act in the case of impartible estates governed by the said Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the privy council in -- 'Commr. of Income-tax, Punjab v. Krishna Kishore', AIR 1941 PC 120 CB) and -- 'Krishna Yachendra Bahadur Varu v. Raja Rajeswararao', AIR 1942 PC 3 (C). The income of the impartible estate is the individual income of the holder of the estate and is not the income of the Joint family. Vide -- 'AIR 1941 PC 120 (B)'. To this extent, the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self-acquired and separate property to that extent. The only vestige of the incidents of joint family property, which still sticks on to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put sn end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate. That the property is not held to coparcenary was clearly enunciated by the Judicial Committee by Sir George Rankin himself in the latest case in -- 'Ananth Bhikappa v. Shankar Kamachandra', AIR 1943 PC 198 at p. 201 CD), in these terms : "Now an impartible estate is not held in coparcenary -- 'Rani Sartaj Kuari v. DeoraJ Kuari', 10 AH 272 (PC) (E), though it may be joint family property, it may devolve as joint family pro-perty or as separate property of the last male owner. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point; the estate devolves by inheritance from the last male owner in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by custom." See also the decision of the learned Chief Justice find Venkatarama Ayyar J. in -- 'Rangarao v. State of Madras', (P). 9. The learned advocate for appellant l relied strongly upon the observations of Sir George Ran-kin in -- 'AIR 1941 PC 120 at p. 127 (B), where the learned Judge refers to unity of ownership, for he says; . "Unity of ownership, unaccompanied by joint possession on the part of the sons, or any other right of possession would not seem to affect the character in which the income is received. Income is not jointly enjoyed by the party entitled, to maintenance and the party chargeable; and their Lordships see no reason to restrict the observations which they have cited from the judgment in -- 'Jagadamba Ku'mari v. Wazir Narairt Singh', AIR 1923 PC 59 (G), to the special class of cases where no maintenance is payable to any junior member. It cannot in their view be held that the respective chances of each son to succeed by survivorship make them all co-owners of the income with their father, or make the-bolder of the estate a manager on behalf of himself and them, or on behalf of a Hindu family of which he and they are some of the male members." 10. In view of the observations in the later Bombay ease by the same learned Judge Sir George Rankin, it cannot be held that by unity of ownership, the learned Judge intended to convey that all junior members are coparceners of the property which would be contrary to all the decisions of the Judicial Committee, which recognised no interest in the property in the junior members and. for that reason they had no right to partition, no right to interdict an alienation and no right to claim maintenance. All that the learned Judge must have meant was that the property continues to be joint family property in the sense that the joint family is taken as one unit when the question of the heir fails to be determined from among its members and the person entitled to succeed to the estate is selected on the principle of survivorship. The discussion by the learned Judge in the earlier portion of the judgment seems to indicate that the learned Judge did not mean by the expression "unity of ownership" to convey that the junior members had any present title to or interest in the property, the only right being to take the estate by survivorship, if the person survives the death of the holder for the time being. It would revolutionise the law relating to impartible estate as developed by the decisions of the Judicial committee and put the clock back if junior members are considered as having a present interest in the estate. No useful purpose would be served by examining all the decisions in detail in view of the clear and unambiguous pronouncement of the Judicial Committee in the Bombay case where it is stated that the junior members are not coparceners. 11. If therefore appellant 1 had no title to the property at the time of the renunciation except the off-chance of succeeding by survivorship to the estate after the death of his father, the renunciation or relinquishment under the deed would not clothe him with any title to the property. Renunciation must be in favour of a person, who had already title to the estate the effect of which is only to enlarge the right. Renunciation does not vest in a person a title where it did not exist and therefore the deed would be inoperative to make appellant 1 the owner of the impartible estate of Sivagiri. Appellant 1's contention on the construction of the document is that it conveyed no present interest. Appellant 1's advocate is really on the horns of a dilemma. If the document did not convey any title to the property, he gets none as-renunciation is ineffective to confer any title upon appellant 1; if on the other hand the document conveys or transfers property, it will be hit at by Section 34, Court of Wards Act. The learned counsel for appellant 1, therefore did not contend that the document constitutes a deed of transfer though it was the view taken by the tribunal. It is unnecessary for us to express any opinion whether the document in fact conveys, any title to appellant 1 as appellant 1 did not contend before us that it did convey title to him. The first contention, therefore, of the learned counsel for appellant 1 cannot be accepted. 12. The second point viz., the application of the doctrine of surrender is, in my opinion, without any substance. The doctrine is peculiar to the limited owner taking an estate under Hindu law and has never been applied to a full owner. The doctrine proceeds on the basis that a limited owner, widow, daughter, or mother, brings about by surrender a civil death or self-effacement, the effect of which is to accelerate succession and to let in the next reversioner. In other words, it is as if the limited owner died on that date when the law steps in and vests the property in the next reversioner. Such a doctrine has no application to the case of a full owner of property who is himself the stock of descent for the devolution of the property. An impartible estate holder for the time being can clothe the next in succession with a right to the estate by a transfer or gift 'inter vivos' or even by a will. But in Madras in cases governed by the Madras Impartible Estates Act, the transfer is subject to the limitations imposed by Section 4 of the Act and no right to bequeath the property by will exists. The power of alienation is restricted and limited. The doctrine, therefore, of surrender cannot be applied to this case and no case has been cited before us relating to an impartible estate to which the doctrine has been applied. On the face of it, the doctrine, even if it is treated as a surrender, seems to me a clear device to divide the estate. It does not merely contain a provision for maintenance but there are also provisions for lump sum payments to the zamindar and his second Rani. The second contention also therefore fails. 13. We are, therefore, of opinion that the view taken by the Tribunal that appellant l did not become the owner of the impartible estate of Sivagiri and that he is not entitled to the payment of the advance compensation deposited by the Government with the Tribunal is correct and the decision must be affirmed. 14. The appeal is dismissed with costs which we fix at Rs. 750 Madras High Court Ulagalam Perumal Sethurayar ... vs Rani Subbalakshmi Nachiar on 19 March, 1935 Equivalent citations: 168 Ind Cas 753 Author: Ramesam Bench: Ramesam, Stone JUDGMENT Ramesam, J. 1. This is an appeal against the decree of the Subordinate Judge of Tinnevelly granting the plaintiff possession of the properties mentioned in the plaint Schedules A to C and E and the movables mentioned in Schedule I with mesne profits (schedule D) to be ascertained. Schedule A above mentioned consists of the impartible zamindari of Urkad One Section Kottilinga Sethurayar was the zamindar of Urkad on June 2, 1902, when the first impartible Estates Act was passed. On May 29, 1902, i.e., four days before the coming into force of the Impartible Estates Act of 1902, he executed a deed of settlement (Ex. D). At that time he had one son K. Kottilinga Sethurayar by his deceased first wife, and had married a second wife who was enciente. Under the deed of settlement (1) he reserved for, himself the estate for life in the zamindari, (2) he settled the zamindari absolutely on the child to be borne by his second wife Thanga Pandichi provided the child is born alive and a male, with a defeasance clause in case the child pre deceased the settlor without a male issue, (3) in case a male child was not born alive, the property was to be settled on Thanga Pandichi absolutely with a clause of defeasance, in case she died without leaving a male issue, in favour of his brother's son. He makes provision for a house worth Rs. 2,000 for his eldest son and also provides for his maintenance at the rate of Rs. 75 per mensem, for his brother's son at the rate of Rs. 125 per mensem, for his mother at the rate of Rs. 70 per mensem, for his step-grandmother at the rate of Rs. 33-1-3 per mensem and for his second wife at the rate of Rs. 70 per mensem. 2. The document was executed and registered at Mylapore, Madras, where we must have gone for legal advice in connection with the settling of its terms.. A son was born on August 13, 19p2, Meenakshisundara Vinayaga Perumal. Afterwards the second wife died in 1904 in childbirth. The zamindar married a third wife and by her he had a son Ulagalam Perumal who was born in June 1906 and who is defendant No. 1 in the suit. Meanwhile the eldest son, K. Kottilinga died in 1903. It may be mentioned here that the Impariible Estates Bill was published on May 11, 1902, and the zamindar executed the deed of settlement in anticipation of its being passed into an Act. After the Act his power of disposal over the property was very limited as under the Impartible Estates Act the position of a zamindar is analogous to that of the manager of a Hindu joint family or that of a Hindu widow. It is also agreed on all hands that the motive for the execution of the settlement deed was that he conceived a dislike for his eldest son because he entered into a marriage against his father's wishes. The zamindar died on January 7, 1907. On March 4, 1907, the Court of Wards took charge of the estate on behalf of the minor Meenakshisundara and also the guardianship of both the sons, i.e. Meenakshisundara and defendant No. 1 Afterwards in 1923 the estate was handed over to Meenakshisundara when he attained majority. In July 1929 he died leaving his widow Rani Subbulakshmi Nachiar who is the present plaintiff. Immediately after his death the Collector stated that he would recognise defendant No. 1 as the heir and referred the plaintiff to a regular suit. The present suit was tiled on October 1, 1920, to recover possession of the zamindari (schedule A) and other connected properties. Schedule J3 relates to Devasthanams, charities, kattalais and other endowments of which the zamindar for the time being was the trustee. Schedule C relates to jewels, silver vessels and other movables. Schedule D relates to mesne profits. 3. The plaint also contains an allegation that some time alter Meenakshisundara took charge of the estate he and defendant No. 1 entered into a partition arrangement dividing the partible properties under which the properties in schedule E fell to the share of Meenakshisundara and the properties in schedule F to the share of defendant No. 1. Accordingly the plaintiff prayed for possession of the properties. In schedule E also. Defendant No. 2 who is a cousin of Section Kottilinga was impleaded as he was appointed manager by the last zamindar under a trust deed. Defendants Nos. 3 to 11 were tenants under rival leases This portion of the suit has been either decided or compromised and we have got nothing to do with these defendants in appeal. The plaintiff having got a decree as prayed for, defendant No. 1 tiles this appeal. His contention was that even if Meenakshisundara got a vested remainder in the zamindari under the deed of settlement (Ex. D) which had fallen into possession of the debt of his father, still he took it only as a member of the joint family and though for purposes of enjoyment he was the only person competent to enjoy the zamindari on account of its impartible nature still for purposes of succession it is joint property and the next heir has to be chosen on the footing of succession to joint family property, i.e., he contended that the property descended by survivorship to defendant No. 1 and not to the plaintiff who would be the heir only if the suit property is the separate property of Meenakshisundara. This contention was negatived by the Court below and is repeated before us. 4. The main point in the argument for the appellant as urged by his Advocate Mr. Venkatarama Sastri is that though when impartible property is alienated to a stranger, the stranger takes it free of all jointness, i.e., as his separate property, still when the alienation is made to a member of the family the member takes it as joint family property by reason of its character prior to alienation. Almost at the threshold of this argument we are met with this anomaly, viz. that if Meenakshisundara took the zamindari under the settlement as joint property, K. Kottilinga and defendant No. 1 would be members of the joint family of which Meenakshisundara would be the head being the zamindar, and the others would be entitled to maintenance only, so that if Kottilinga survived Meenakshisundara dying without male issue he would be entitled to succeed. But this is the very thing which the settlor desired should not happen. According to the contention of the appellant, then' effect of the settlement is merely to supersede K. Kottilinga and to appoint Meenakshisundara as the zamindar in his stead and he relies on instances of such supersession of one branch in favour of a junior branch as supporting his contention. These instances are; (1) Konammal v. Annadana 51 M. 189 : 108 Ind. Cas. 354 : A.I.R. 1928 P.C. 68 : 55 I.A. 114 : 27 L.W. 497 : 5 C.W.N. 441 : 54 M.L.J. 504 : 47 C.L.J. 488 : 9 P.L.T. 347, 26 A.L.J. 642 : 30 Bom. L.R. 802 : (1928) M.W.N. 252 : 32 C.W.N. 983 (P.C.). In that case it appears that when Lakshmanappa died in 1822 he was succeeded by the second son though the eldest son was living. What happened then was described as a relinquishment by Lakshmanappa to his second son because the eldest son was of weak intellect and his son was an infant. The Courts found as a fact that by an arrangement between the Poligar and the adult members of his family the palaiyam was transferred to the second son Annadana and that information of this was given to the Revenue Officials and was recorded by them (vide p. 197). A similar supersession of an elder by the second line and later on of the younger line by the elder line in Naraganti Achamagara v. Venkatachalapathi Nayninar 4 M. 250 and Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochiah Venkondora 13 M.I.A. 333 : 13 W.R. 21 : 2 Sar. 546 : 20 E.R. 576 (P.C.). It appears in that case the fifth Mansubdar Mallappa Uhora fell out with his overlord, Thereupon Bapan Dhora turned out the said Mallappa Dhora and took possession of the estate as the sixth Mansubdar. But it was held that Bapan Dhora took the estate on behalf of the rest of the undivided family. Now it appears that in the first and third of the above cases there is no document evidencing the transaction and the Courts inferred from the particular facts that a line was superseded or the Mansubdar was expelled with the result that the zamindar in the first of the cases took it as head of the joint family and in the second case, of the rest of the family other than Mallappa Dhora. 5. In the decision in Naraganti Achamagara v. Venkatachalapathi Nayanivar 4 M. 250 two agreements were produced and it was held that they constituted a family arrangement. What was abandoned was only a preferential right to the immediate enjoyment of the dignity of the Palayagar and actual possession of the estate. It was also observed that there was no evidence of any more extensive abandonment of their rights by the elder brothers of Kuppi Naidu (vide p. 261). It must also be remembered that at the dates when the incidents in the above three cases happened it was supposed that the owner of an impartible zamindari was under the same restrictions in respect of the alienation of the zamindari as the owner of partible properly when there are other male members in the family such as sons or brothers. It was only in 1888 that the right of the holder of an impartible zamindari to alienate property to any person he liked without any justifying necessity was recognised. Prior to that date, as no zamindar was conscious of any, larger power, it would be unreasonable to attribute to a zamindar an intention to effect an alienation exceeding his powers as they were then supposed to be. 6. The three instances on which the appellant relies are, therefore, in my opinion dissimilar to the case before us. In my judgment in Annadana Jadaya Gounder v. Konammal 17 L.W. 107 : 71 Ind. Cas. 533 : AIR 1923 Mad. 402 : (1923) M.W.N. 15 affirmed by the Judicial Committee in Konammal v. Annadana Jadaya Gounder 51 M. 189 : 108 Ind. Cas. 354 : A.I.R. 1928 P.C. 68 : 55 I.A. 114 : 27 L.W. 497 : 5 C.W.N. 441 : 54 M.L.J. 504 : 47 C.L.J. 488 : 9 P.L.T. 347, 26 A.L.J. 642 : 30 Bom. L.R. 802 : (1928) M.W.N. 252 : 32 C.W.N. 983 (P.C.), I discussed the facts of each of these cases separately. At pp. i20 and 121 I discussed the facts of Naraganti Achamagaru v. Venkatachalapathi Nayaninar 4 M. 250 and at pp. 122 to 124 I discussed the history of the family in Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Bojchiah Venkandora 13 M.I.A. 333 : 13 W.R. 21 : 2 Sar. 546 : 20 E.R. 576 (P.C.) and it is unnecessary to repeat those observations here. In the present case we have got a zamindar trying to dispose of his property in full consciousness of the power of alienation he possessed according to the decision of the Judicial Committee in Sartaj Kuari v. Dioraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), which was followed up by the decision in Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur v. Court of Wards 22 M. 383 : 26 I.A. 83 : 7 Sar. 481 : 3 C.W.N. 415 : 9 M.L.J. Sup. 1 : 1 Bom. L.R. 277 (P.C.), which was a case of a will and not of alienation inter vivos. With the full knowledge of his power the zamindar intended to set aside his eldest son and for this purpose he executed a deed of settlement Ex. D by which he vested the whole property in favour of his second son who had at that time existed en ventre sa mere and who was the only person in whom he was very much interested. He had not at that time married a third wife. It is doubtful whether if the power of the holder of an impartible is less than the power of alienation conceded to him by the decision in Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.) and Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur v. Court of Wards 22 M. 383 : 26 I.A. 83 : 7 Sar. 481 : 3 C.W.N. 415 : 9 M.L.J. Sup. 1 : 1 Bom. L.R. 277 (P.C.), he can set aside one son in favour of another except by a family arrangement to which all are consenting parties. The first two of the earlier instances must now be regarded merely, as cases of family arrangement to which the superseded persons were consenting parties, and in the third case though Malappa Dhora was expelled, Bapan Dhora came in only as the head of the undivided family. There was no alienation or other transaction in that case which made it possible for one to hold that Bapan Dhora took the estate for himself only. 7. A further argument has been addressed on behalf of the appellant in a somewhat different strain. Assuming that S. Kottilinga intended to settle the property on Meenakshisundara, still the effect of such a transaction under the Hindu Law, it is contended, would be that Meenakshisundara would take it only on behalf of the family independent of the intention of the settlor. For this position Mr. Venkatarama Sastri relies on Mitakshara, Chap. I, Section 4. In verse 2 it is said only that property acquired by the coparcener without detriment to the property of his father shall not appertain to the co-heirs, and it is argued that in the present case it is the father's property that is given to one of the sons. It is true that where the property is joint family property, the father may distribute it among his sons by any equitable arrangement of his own but the sons will take it as ancestral property. But where the property is the father's self-acquired property and he gives it to any of his sons out of favour it is not clear that the son takes it as ancestral property. The learned Advocate-General who appeared for the respondent relies en verse 28 of the same section which says: What is obtained through the father's favour will be subsequently declared exempt from partition. 8. The reference here is to verses 13 and 16 of Section 6: vide Stoke's Hindu Law Books. Where a father gives his self-acquired property to one of his sons, the question whether he takes it as ancestral property or as self-acquired property as between himself and his sons has been very much discussed in a number of cases in India in all the High Courts and the point was finally discussed by the Judicial Committee in Lal Ram Singh v. Deputy Commissioner of Partabgarh 45 A. 596 : 76 Ind. Cas. 922 : A.I.R. 1923 P.C. 160 : 50 I.A. 265 : 26 O.C. 257 : (1923) M.W.N. 591 : 9 O. & A.L.R. 746 : 21 A.L.J. 777 : 33 M.L.T. 355 :10 O.C.L. 513 : 47 M.L.J. 260 : 29 C.W.N. 86 (P.C.), and at p. 601 Page of 45 A.--[Ed.], the Conflict between the decisions of the Indian High Courts was noticed. In Muddun Gopal Thakoor v. Ram Bukhsh Pandey 6 W.R. 71 and Hazari Mall Baboo v. Abaninath Adhuyya 17 C.W.N. 280 : 18 Ind. Cas. 625 : 17 C.L.J. 38 it was held that the property was ancestral. In Madras it was held that the father may determine whether it should be ancestral or self-acquired but if he does not fairly indicate his wish, it is presumed to be ancestral vide Tara Chand v. Reeb Ram 3 M.H.C.R. 50 and Nagalingam Pillai v. Ramachandra Tevar 24 M. 429 : 11 M.L.J. 210. In Bombay it was regarded as self acquired, vide Jagmohandas Inangaldoss v. Sir Mungaldoss Nathubhay 10 B. 528 and Nanabhoi Ganpat Bai v. Achratbai 12 B. 122 so also in Parsotam Rao Tantia v. Janki Bai 29 A. 354 : 4 A.L.J. 257 : A.W.N. 1907: 77. In Rameshwar v. Rukumin 14 O.C. 244 : 12 Ind. Cas. 770 it was held that it would be ancestral. The Judicial Committee after noticing all these decisions finally remarked in Lal Ram Singh v. Deputy Commissioner of Partabgarh 45 A. 596 : 76 Ind. Cas. 922 : A.I.R. 1923 P.C. 160 : 50 I.A. 265 : 26 O.C. 257 : (1923) M.W.N. 591 : 9 O. & A.L.R. 746 : 21 A.L.J. 777 : 33 M.L.T. 355 :10 O.C.L. 513 : 47 M.L.J. 260 : 29 C.W.N. 86 (P.C.) at p. 605 Page of 45 A.--[Ed.]: Their Lordships deem it unnecessary to pronounce upon these points. It may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case. 9. Now it must be observed that in all the cases which have been just mentioned, the only question that arose was whether the son who got the property from the father holds it as ancestral property or as self-acquired property as against his own son and not as against a brother or other collateral. Even in the earliest of these cases Muddun Gopal Thakoor v. Ram Bukhsh Pandey 6 W.R. 71 where the matter was somewhat fully discussed it was observed at p. 72 Pages of 6 W.R.--[Ed.]: It may well be that in property acquired by a man his sons may have an interest though mere co-sharers, such as brothers who have not contributed in any manner to the acquisition may not be entitled to participation, and at p. 73 Pages of 6 W.R.--[Ed.] it was observed that: property distributed by a grandfather amongst his sons does not by such gift become the self-acquired property of the sons so as to enable them to dispose of it without the consent and to the prejudice of the grandsons. 10. And in the case in Lal Ram Singh v. Deputy Commissioner of Partabgarh 45 A. 596 : 76 Ind. Cas. 922 : A.I.R. 1923 P.C. 160 : 50 I.A. 265 : 26 O.C. 257 : (1923) M.W.N. 591 : 9 O. & A.L.R. 746 : 21 A.L.J. 777 : 33 M.L.T. 355 :10 O.C.L. 513 : 47 M.L.J. 260 : 29 C.W.N. 86 (P.C.) though the decision turned on the construction of the Oudh Estates Act, the question was whether in the property of Lachman the plaintiff, his son, had any interest by birth. Now in the present case we are not concerned with any such question and it is not necessary to decide any such question. In Shibaprasad Singh v. Prayag Kumaru Debi 59 C 1399 : 138 Ind. Cas. 861 : A.I.R. 1932 P.C. 216 : 59 I.A. 331 : Ind. Rul. (1932) P.C. 263 : 63 M.L.J. 196 : 9 C.W.N. 691 : 36 C.W.N. 1046 : 56 C.L.J. 92 : 36 L.W. 266 : (1932) M.W.N. 923 : (1932) A.L.J. 919 : 13 P.L.T. 659 : 34 Bom. L.R. 1567 (P.C.), at p. 1413 Page of 59 C.--[Ed.], Sir Dinshah Mulla observes: To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate though ancestral is clothed with the incidents of self-acquired and separate property. 11. It is not suggested that the impartible estate is exactly in the position of self-acquired property, but for certain purposes (one of which is the matter of alienation) it is clothed with the incidents of self-acquired and separate property. Therefore, looking at it as if it is clothed with the incidents of self-acquired property, when Section Kottilinga settled the zamindari under Ex. D upon Meenakshisundara, Meenakshisundara took the property absolutely as his own so far as all the collaterals are concerned, i.e., his elder brother K. Kottilinga, his younger brother, defendant No. 1, and his cousin, defendant No. 2, they have nothing to do with the property--not even the notional joint right useful at least for purposes of succession according to the recent decisions of the Judicial Committee such as Konammal v. Annadana Jadaya Gounder 51 M. 189 : 108 Ind. Cas. 354 : A.I.R. 1928 P.C. 68 : 55 I.A. 114 : 27 L.W. 497 : 5 C.W.N. 441 : 54 M.L.J. 504 : 47 C.L.J. 488 : 9 P.L.T. 347, 26 A.L.J. 642 : 30 Bom. L.R. 802 : (1928) M.W.N. 252 : 32 C.W.N. 983 (P.C.), Shibaprasad Singh v. Prayag Kumar Debi 59 C 1399 : 138 Ind. Cas. 861 : A.I.R. 1932 P.C. 216 : 59 I.A. 331 : Ind. Rul. (1932) P.C. 263 : 63 M.L.J. 196 : 9 C.W.N. 691 : 36 C.W.N. 1046 : 56 C.L.J. 92 : 36 L.W. 266 : (1932) M.W.N. 923 : (1932) A.L.J. 919 : 13 P.L.T. 659 : 34 Bom. L.R. 1567 (P.C.), and Collector of Gorakhpur v. Ramsunder Mal 56 A. 468 : 150 Ind. Cas. 545 : A.I.R. 1934 P.C. 157 : 61 I.A. 286 : 7 R.P.C. 1 : 11 O.W.N. 889 : 40 L.W. 217 : (1934) A.L.J. 779 : 67 M.L.J. 274 : 15 P.L.T. 531 : 60 C.L.J. 67 : (1934) M.W.N. 751 : 36 Bom. L.R. 867 : 38 C.W.N. 1101 (P.C.). It may be that such a question would have arisen if Meenakshisundara had a son so far as that son is concerned. In my opinion, therefore, the argument based on the Mitakshara does not advance the case any further. If the holder of an impartible estate has an absolute right of alienation inter vivos or by will according to the decisions in Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), and Sri Rajah Rao Venkata Surya Mahipathi Rama Krishna Rao Bahadur v. Court of Wards 22 M. 383 : 26 I.A. 83 : 7 Sar. 481 : 3 C.W.N. 415 : 9 M.L.J. Sup. 1 : 1 Bom. L.R. 277 (P.C.), then one has only to follow the logical effect of these decisions and to hold that the alienee takes the property as absolute property, i.e., as self acquired property, and not jointly with other members of the, joint family of which the donor himself and others were members. To so hold would be to say that the holder of the zamindari has not an absolute power of alienation. 12. The argument is that if the alienee is a stranger he would no doubt take an absolute estate, but if the alienee is a member of the family, he would take it only as joint property. Now seeing that even a member of a joint family may hold property as self acquired when it is separately acquired, I do not see how the fact that the alienee is a member of the family can make any difference. To say that where the alienee is a member of the family he must hold it only as a member of the joint family is to really impose a restriction on the full power of alienation as recognised by the decisions of the Judicial Committee above-mentioned, It imposes a disability on the holder of the estate and makes it impossible for him to pass an absolute estate to a member of the family which is inconsistent with the full power of alienation recognised by the decisions. If he has full power of alienation, the immediate result of the alienation is that the alienee gets an absolute property. It is another thing to say that he afterwards threw it into the common stock or dealt with it as joint family property. Such subsequent conduct of the alienee is a different matter. In my opinion the alienation itself must pass an absolute estate. It was very much pressed upon us that the object of the zamindari was only to cut off K. Kottillinga and not to deprive the third son. This is indicated by the fact that the defeasance clause in Ex. D, providing that Meenakshisundara's mother Thanga Pandichi should take the property, if Meenakshisundara dies before the settlor, allows such a defence only if Meenakshisundara dies before the settlor without leaving a male issue. 13. No doubt the object of such a clause is that if Meenakshisundara dies leaving a male issue, the document should not operate and the vested zamindar of Meenakshisundara descends to his son. But this is merely a plain case. The mere fact that the settlor allows the property to go to Meenakshisundara's son gives us no indication that Meenakshisundara's son gets it by survivorship and not by inheritance. It is consistent with either alternative. Again it is said that the object of the defeasance clause vesting the property in Thanga Pandichi is to make it possible for a third son to get the property through her. This is true but the every method by which the result is arrived at shows that it cannot be held as joint family property. If the property goes, after Meenakshisundara, to his mother and then only goes to another son as the heir of the mother, it cannot be joint family property. Therefore it cannot be said that Meenakshisundara himself held it as joint family property. Moreover, if Thanga Pandichi had a son and a daughter instead of a son only, and in such a case Meenakashisundara died without male issue in the lifetime of the settlor, the property would be Sridhanam in the hands of Thanga Pandichi and then it would pass to her daughter in preference to the third son. 14. The settlor had to risk these consequences because there was no means of giving the property direct to the third son after Meenakshisundara, no such son being in existence and it being impossible for a Hindu according to the then law to make a gift in favour of an unborn person as laid down in Jatindra Mohan Tagore v. Ganendra Mohan Tagore 9 B.L.R. 377 : 18 W.R. 359 : 1 A Sup. Vol. 47 : 2 Suther 692 : 3 Sar. 82 (P.C.). The settlor's anxiety to supersede K. Kottilinga was so strong that he was willing to take the risk of things turning out not exactly as one would like. He provided for certain contingencies as far as he could, and beyond that he left matters to take their own course. Again it must be remembered that all the contingencies provided for are only in case Meenakshisundara died during the lifetime of the settlor leaving or without leaving a male issue as the case may be. If he succeeds the settlor and enjoys the property and then dies, the settlor had nothing to say by way of providing for such a contingency. He left the law to take its course. This is of course the contingency that has happened. An impartible estate goes by survivorship to the other members of the family only if at the time the succession opens, it is held as the property of the joint family the other members having no right of enjoyment nor the right of interdicting alienation but the right of maintenance limited only to the son of the zamindar: Gangadhara Rama Rao v. Rajah of Pittapur 41 M. 778 : 47 Ind. Cas. 351 : A.I.R. 1918 P.C. 81 : 45 I.A. 148 : 35 M.L.J. 392 : 24 M.L.J. 276 : 16 A.L.J. 833 : 28 C.L.J. 428 : 5 P.L.W. 267 : 20 Bom. L.R. 1056 : 23 C.W.N. 174 : (1918) M.W.N. 922 (P.C.), and waiting for the chance of succession on the basis of joint family. 15. It is true that such chance of succession may not properly be described as a mere spes successionis is, for here the chance of succession is the logical result of a notional interest in the property. In Shiboprasad Singh v. Prayag Kumaru Debi 59 C 1399 : 138 Ind. Cas. 861 : A.I.R. 1932 P.C. 216 : 59 I.A. 331 : Ind. Rul. (1932) P.C. 263 : 63 M.L.J. 196 : 9 C.W.N. 691 : 36 C.W.N. 1046 : 56 C.L.J. 92 : 36 L.W. 266 : (1932) M.W.N. 923 : (1932) A.L.J. 919 : 13 P.L.T. 659 : 34 Bom. L.R. 1567 (P.C.), at p. 1413, Sir Dinshaw Mulla observes: Though the other rights which a co-parcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered. 16. But the impartible estate will not go by survivorship to another male member if at the time when the succession opens, it is not held as joint property even in the sense described above but is held only as separate property of the propositus. Such cases can occur either by renunciation or by partition in which the zamindari is also taken into account or by some such equivalent transaction. Examples of this are Vadrevu Ravganayakamma v. Vadrevu Bulli Rammayya 5 C.L.R. 439 : 6 C. 131, Guruswami Pandiyan v. Chenna Thambiar 44 M. 1 : 61 Ind. Cas. 242 : A.I.R. 1921 Mad. 340 : 39 M.L.J. 529 : (1920) M.W.N. 660 : 28 M.L.T. 365, Tara Kumari v. Chathurbuja Narayan Singh 42 C. 1179 : 30 Ind. Cas. 833 : A.I.R. 1915 P.C. 30 : 42 I.A. 192 : 19 C.W.N. 1119 : 29 M.L.J. 371 : 18 M.L.T. 228 : 2 L.W. 843 : 13 A.L.J. 1034 : 17 Bom. L.R. 1012 : 22 C.L.J. 598 : (1915) M.W.N. 717 (P.C.) and Periasami v. Periasami 5 I.A. 61 : 1 M. 312 : 3 Sar. 795 : 3 Suther 508. In the present case Meenakshisundara having got the property absolutely as separate property by an alienation of Section Kottilinga, his heir is to be sought on the footing of its being his separate property and on the footing that he held it as a member of the joint family even in the limited sense in which an impartible property held by a single holder can be said to belong to the joint family. That being so, the property cannot go by survivorship to defendant No. 1, but descends by succession to the plaintiff. Moreover, if the settlor intended to give the vested remainder to Meenakshisundara as joint property up to a certain point of time, viz., the death of Meenakshisundara during the lifetime of the settlor without leaving a male issue, as contended for by the appellant, it is doubtful whether the settlor can make any further dispositions at all. Having given it away the property to be held by Meenakshisundara as the property of the joint family of which he is the enjoying head, how can the settlor at that stage change the character of the property and make further dispositions regarding it on the footing of its being the separate property of Meenakhisundara and introduce a clause of defeasance? 17. The moment Meenakshisundara dies without leaving a male issue, it will go by survivorship to any male member then existing, such as K. Kottilinga, if he had lived on or the present defendant No. 1. The settlor can introduce a clause of defeasance so as to override the survivorship only by changing the character in which Meenakshisundara would have held up to his death. In the first place it is doubtful if he can do so. In the second place there are not words in the settlement showing that at that point of time the settlor wanted to impose a change of character on the holding of the property by Meenakshisundara. In my opinion this last consideration is conclusive on the matter but I thought it better, first, to discuss the question apart from it. It is next argued that there is conduct of Meenakshisundara which indicates that he held the estates as joint property. On this part of the case it is unnecessary to deal with the matter at great length. This question is the subject of the seventh issue and the Subordinate Judge has dealt with it in para. 38 of his judgment. It is now said that the zamindar made his brother Diwan and was treating him on affectionate terms. This is true, but to hold that acts of affection amount to throwing the property into the common stock of the joint family is neither logical nor desirable. The only effect of Courts loosely holding that such results follow would be to make zamindars treat their relations such as brothers without the smallest spark of affection or kindness. No one desires 1hat anything that the Courts hold should have such consequences. But apart from such considerations it is impossible to say that Meenakshisunclara thought that he was holding the zamindari as joint property of himself and his brother from any item of conduct that has been brought to our notice. 18. Exhibit 16 shows that defendant No. 1 was getting some maintenance allowance regularly along with the allowance of the Raja. I do not think any inference should be drawn from the fact that these two items are put together and not separately. There is no suchunmistakeble conduct on the part of the zamindar as would indicate that he intended that the zamindari should be regarded as undivided property. I now pass on to the next point which is the subject of the ninth issue, viz., whether there was a division of the partible properties. First we have got a draft partition deed in March 1924, (Ex. H). This is in Tamil and incomplete as it does not state the boundaries and schedules. On the outside there are endorsements by the manager M.S. Subramania Pillai. One endorsement is dated May 30: "Enter boundaries and show." Again in June there is another endorsement: "Why not done yet." Up to this stage defendant No. 1, is a minor and possibly this was the reason why nothing was done. Then we have got a second draft partition deed (Ex. H-1). The month and date are not mentioned but the year is given, 1100 Andu, showing that it must have been drawn up after August 1921. This document seems to be a copy of Ex. H because in the body the clause that the zamindar should pay Rs. 1,000 to defendant No. 1 on April 30, 1921, was repeated without any correction. 19. For some reason the document was never registered though a gift deed to a sister drawn up at the same time was executed and registered: Exhibit 16. However it appears that some of the terms mentioned in Ex. H-1 were carried out. For instance we find that Rs 1,003 was deposited in the name of defendant No. 1 in a local Bank. Exhibit 1 is the ledger page in the bank's accounts in the name of defendant No. 1. Exhibit L-4 is the pass book. There are similar ledger pages in favour of the zamindar and Ex. M is his" pass book. Later on a sum of Rs. 600 is paid into the account to the credit of defendant No. 1: vide Exs. L-1 and L-4. It is now said that, this Rs. 603 represents defendant No. 1's share of the rent in respect of the Periya kulam Pannai lands. Exhibit N is an account of the same showing that for February 1925, Rs. 603 was realized as defendant No. 1's share; vide also Ex. N-3. It shows that for the prior year defendant No. 1's share was Rs. 506, but there is no such account for the earlier year supporting this statement; nor could there have been any partition in February 1924, when defendant No. 1 was a minor. 20. Afterwards the same amount is again debited and a fixed deposit receipt was issued for the whole amount of Rs. 1,600 and interest. This fixed deposit afterwards matured and the amount was drawn by defendant No. 1. Besides the cheque for Rs. 600 he seems to have written another cheque for Rs. 500 but it was not issued. Defendant No. 1 himself denies knowledge of any partition. There is no doubt about the genuineness of Ex. H.1, L and N series. He also denies knowledge of the separate leasing out of his lands. Defendant No. 1 himself would have been just 18 in 1924 and 1925. Later years' entries in the accounts do not show a separate entry of Rs. 600 for defendant No. 1's lands. All that can be inferred is that possibly Meenakshisundara and his manager conceived the idea of bringing about a partition, got a partition deed drafted, made payments amounting to Rs. 1,600, and leased out the lands in different shares, but it does not appear that what they did was known to defendant No. 1. Defendant No. 1 does not seem to be a party to any act of division. Either the zemindar was unwilling to mention to his younger brother his anxiety for a division or the zamindar himself had dropped the idea. If they seriously desired to complete it, there was nothing to prevent it. It is said that the draft partition deed (Ex. H-1) provides for the building of a separate palace for defendant No. 1, but a foundation stone seems to have been laid for a house so long ago as January 1924 when defendant No. 1, was still a minor, and afterwards a house seems to have been built at a cost of Rs. 12,000. Neither the payments of Rs. 1,000 and Rs. 600 nor the building of a separate house for him, nor the fact that a separate bandy and bullocks were allotted to him (which also appears from the evidence) conclusively shows a partition. 21. These transactions are consistent with gifts made by the zamindar to defendant No. 1 on account of affection. Under these circumstances I am unable to agree with the finding of the Subordinate Judge that there was a completed partition. It appears that the house was actually decreed to the plaintiff. This portion of the decree must anyhow be erroneous on any footing. If the house was separately built for him and this is one of the items of the division, defendant No. 1 is entitled to the house. If there was no division, then also defendant No. 1 is entitled to it by survivorship. It is conceded that this portion of the decree cannot stand: Schedule A-II, item C. But on my finding that there was no partition the decree of the lower Court for the whole of the properties in schedule E as well as the house schedule A II item C and the properties in schedule I to the written statement must be vacated and the appeal must be allowed to this extent. It was suggested in one portion of the argument that we might fix the maintenance of defendant No. 1. No such question was raised in the Court below or in the grounds of appeal though to save litigation the amount might as well be fixed now. We cannot do it without the consent of the respondent. The result is except as to the properties in schedule E the appeal is dismissed. The parties will pay and receive proportionate costs throughout. No evidence has been adduced regarding the items referred to in the memo, of objections. It is, therefore, dismissed with costs. Stone, J. 22. As regards the facts, the question of the partible property, and maintenance, I agree with the judgment pronounced by my learned brother and have nothing to add. On the main question debated before us the point is one of importance, is, as to one part, new, and is one of difficulty. I shall endeavour to state what I have to say as briefly as possible. The settlor, Section Kottilinga Sethurayan, was, at the time of the deed of settlement Ex. D (May 29, 1902), possessed of the impartible zamindari of Urkad. He was the senior member of a joint Hindu family which included his brother. He was married and his wife was enceinte. He had a son K. Kottillinga. It was the primary purpose of the settlement to destroy the proprietary rights of K. Kottilinga, who had greatly angered his father by a marriage of which the father disapproved. The wife of the settlor one Thanga Pandichi, gave birth to a male child, Meenakshisundara. She then died. The settlor married again. That wife gave birth to defendant No. 1 who seized the zawindari on the death of Meenakshisundara. The widow of Meenakshisundara now claims. She succeeds if Thanga Pandichi's son took the property as self acquired property disentangled from all joint family rights, for he is then the stock of descent and his brother has no interest (subject to a doubt which is derived from the Mitakahara when dealing with gifts by father to son of the father's self-acquired, property). The plaintiff loses if Thanga Pandicbi's son took the property as successor to his father, the settlor, or in any way that attracted to the property the joint family rights in that property that were attached to it at the time of the settlement. 23. The matter was presented along two lines (1) It is said that it is to be inferred from the terms of the settlement and generally that the settlor did not intend to give to Meenakshisundara this estate as self-acquired property; (2) it is. said in the alternative that the settlor could not in law give to Meenakshisundara alternatively, did not give to Meenakshisundara this estate as self-acquired property, but that the estate began as ancestral and remained ancestral while in the hands of Meenakshisundara and after his death passed to the person entitled to succeed to the joint family estates, i.e. to the defendant. As to the settlor's intention I agree with my learned brother and have nothing to add. As to the alternative line of argument I agree but have to express my conclusions slightly differently. 24. The exact position occupied in Hindu Law by impartible estates of this type--the history of this zamindari is reviewed in Ramalukshmi Ammal v. Sivanatha Perumal 14 M.I.A. 570 : I.A. Sup. Vol. 1 : 12 B.L.R.P.C. 396 : 17 W.R.P.C. 552 : 2 Bather 603 (P.C.)--has been, considered at length by Lord Dunedin in Baijnath Prasad Singh v. Teji Bali Singh 43 A. 228 : 60 Ind. Cas. 534 : A.I.R. 1921 P.C. 62 : 48 I.A. 195 : 19 A.L.J. 317 : 33 C.L.J. 388 : 40 M.L.J. 387 : (1921) M.W.N. 300 : 25 C.W.N. 564 : 2 P.L.T. 257 : 23 Bom. L.R. 654 : 3 U.P.L.R. (P.C.) 35 : 29 M.L.T. 358 (P.C.), by my learned brother in Annadana Jadaya Gounder v. Konammal 17 L.W. 107 : 71 Ind. Cas. 533 : A.I.R. 1923 Mad. 402 : (1923) M.W.N. 15 at p. 114 Page of 17 L.W.--[Ed.], and by Lord Blanesburgh in Collector of Gorakhpur v. Ramsunder Mal 56 A. 468 : 150 Ind. Cas. 545 : A.I.R. 1934 P.C. 157 : 61 I.A. 286 : 7 R.P.C. 1 : 11 O.W.N. 889 : 40 L.W. 217 : (1934) A.L.J. 779 : 67 M.L.J. 274 : 15 P.L.T. 531 : 60 C.L.J. 67 : (1934) M.W.N. 751 : 36 Bom. L.R. 867 : 38 C.W.N. 1101 (P.C.). From the authorities there cited it is clear that up to Sartaj Kuari v Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), apart from Nilkisto Deb v. Birchunder Thakur 12 M.I.A. 523 : 3 B.L.R.P.C. 13 : 12 W.R. 21 : 2 Sar. 467 (P.C.) (a case under the Dayabhaga system), the following propositions had been consistently adhered to so far as Madras is concerned (1) Impartibility does not make the raj separate or self-acquired property; (2) an impartible raj may be self-acquired or may be joint; (3) if the raj be joint, succession will go to that class to whom it would go under the ordinary Hindu Law but it will then become necessary to choose from that class one who will possess for himself alone; (4) though the person chosen will possess for himself alone the joint family will have rights, viz., {a) a right to have the heirs, failing direct descendants, chosen from it, and it alone, accord-ding to the Mitakshara scheme of succession as modified by the nature of impartibility (6) a right of maintenance. 25. By Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.) an important change was made. That decision has been criticised in India and elsewhere. It is, however, not merely binding on us but, as was stated in Collector of Gorakhpur v. Ramsunder Mal 56 A. 468 : 150 Ind. Cas. 545 : A.I.R. 1934 P.C. 157 : 61 I.A. 286 : 7 R.P.C. 1 : 11 O.W.N. 889 : 40 L.W. 217 : (1934) A.L.J. 779 : 67 M.L.J. 274 : 15 P.L.T. 531 : 60 C.L.J. 67 : (1934) M.W.N. 751 : 36 Bom. L.R. 867 : 38 C.W.N. 1101 (P.C.), has been in force so long that it cannot now be disturbed. Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), decided directly that the holder of the zemin can alienate the impartible property to a stranger without necessity and the alienation cannot be challenged by a member of the family. 26. The foundation of that decision appears to be that in an impartible zamin there is no right to partition, i.e., the junior members cannot, as in the case of an ordinary Hindu family, demand a division of property. The inalienability (save for proper cause) of joint family property is founded on the interest in the property possessed at all times by junior members, an interest which crystallizes out into possession on partition, which partition the junior members can always demand. If there is no power to demand a partition, this reason for inalienability disappears and therefore in the case of an impartible property the holder of the zamin can alienate at any time. It might, of course, have been thought that this inroad upon the normal right to partition created by custom in the case of impartible estates was not merely in the interest of the holder of the zamin but was derived from the very nature of the case which imposed an equal obstacle in the way of the holder of the zamin compelling separation by unilateral act. 27. To make clear this point it is necessary to observe that the quality of impartibility is derived, at least in this case, from family custom. The custom arose in order to keep in tact, in olden days for military brother reasons, the family estates. Had the general law applied, untrammelled by custom; as the years passed the estate would have been broken up either on succession or by partition. Custom stopped this in the case of succession by selecting one only out of the class entitled by the general law, all equally to succeed. In the case of partition it was avoided (1) by saying to the zemindar you may not by giving notice cause a partition, for to permit you, who solely enjoy, to give such a notice, and thereby effect a separation would be to allow you, by your unilateral act, to destroy those rights of succession and of maintenance which the junior members of this joint family have or may hereafter have; (2) by saying to the junior members you may not demand partition of the holder for it is the custom that he alone shall enjoy the whole and this custom would be broken if at any moment you could claim a share in the enjoyment.' But though the law prevented either side from compelling a separation or a partition, partition or separation was never impossible. Some of the cases where it can happen are stated by my learned brother in Annadana Jodaya Gounder v. Konammal 17 L.W. 107 : 71 Ind. Cas. 533 : A.I.R. 1923 Mad. 402 : (1923) M.W.N. 15 at p. 114. Family arrangement is one such case; renunciation is another. Thus though it would appear that the inroad undoubtedly made by the custom of impartibility into the ordinary right to claim severance or partition was made in order to maintain intact on one hand the estate without in any way destroying the rights of the joint family, this restriction on the right to claim partition was made in Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), at p. 273 Page of 10 A.--[Ed.], the premises that led to the conclusion that the zamindar could alienate the whole estate to a stranger. The effect was to empower the holder by his unilateral act to effect a partition not of the family, which remained joint, but of the family property which became wholly free from the rights hitherto possessed by the joint family [apart from statutory provisions such as Section 39, Transfer of Property Act). For those rights did not as regards maintenance, avail against a stranger, Gangadhara Rama Rao v. Rajah of Pittapur 41 M. 778 : 47 Ind. Cas. 351 : A.I.R. 1918 P.C. 81 : 45 I.A. 148 : 35 M.L.J. 392 : 24 M.L.J. 276 : 16 A.L.J. 833 : 28 C.L.J. 428 : 5 P.L.W. 267 : 20 Bom. L.R. 1056 : 23 C.W.N. 174 : (1918) M.W.N. 922 (P.C.), and as regards succession did not continue effectively to exist, for the family had now no impartible property to which to succeed. For all practical purposes it is said Sartaj Kuari v Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), enables the holder to do everything he could do, had he been allowed to give a unilateral notice of separation. That would have Enabled him to go away from the family carrying the estates with him; alienation to a stranger does not enable him to go away from the family but it takes all the property away from the family. 28. Subsequent to Sartaj Kuari v. Deory Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.), and the cases following that case, a new chain of cases commences with Baijnath Prasad Singh v. Teji Bali Singh 43 A. 228 : 60 Ind. Cas. 534 : A.I.R. 1921 P.C. 62 : 48 I.A. 195 : 19 A.L.J. 317 : 33 C.L.J. 388 : 40 M.L.J. 387 : (1921) M.W.N. 300 : 25 C.W.N. 564 : 2 P.L.T. 257 : 23 Bom. L.R. 654 : 3 U.P.L.R. (P.C.) 35 : 29 M.L.T. 358 (P.C.). That decision makes it clear that despite Sartaj Kuari v. Dioraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.) the position is now as follows: (1) No partition can be demanded by the junior members on the other hand, no separation can be compelled by the holder. (2) the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has been definitely and emphatically re-affirmed: Collector of Gorakhpur v Ramsunder Mal 56 A. 468 : 150 Ind. Cas. 545 : A.I.R. 1934 P.C. 157 : 61 I.A. 286 : 7 R.P.C. 1 : 11 O.W.N. 889 : 40 L.W. 217 : (1934) A.L.J. 779 : 67 M.L.J. 274 : 15 P.L.T. 531 : 60 C.L.J. 67 : (1934) M.W.N. 751 : 36 Bom. L.R. 867 : 38 C.W.N. 1101 (P.C.), at p. 487. The above, I believe, correctly represent the major points that emerge from the lines of cases exhaustively enumerated in Annadana Jaday Gounder v. Konammal 17 L.W. 107 : 71 Ind. Cas. 533 : A.I.R. 1923 : Mad. 402 : (1923) M.W.N. 15, at 127 et seq and in the most recent decision of the Privy Council Collector of Garakhpur v. Ramsunder Mal 56 A. 468 : 150 Ind. Cas. 545 : A.I.R. 1934 P.C. 157 : 61 I.A. 286 : 7 R.P.C. 1 : 11 O.W.N. 889 : 40 L.W. 217 : (1934) A.L.J. 779 : 67 M.L.J. 274 : 15 P.L.T. 531 : 60 C.L.J. 67 : (1934) M.W.N. 751 : 36 Bom. L.R. 867 : 38 C.W.N. 1101 (P.C.), at p. 484 et seq. What is fresh in this case is this: What is the position when the holder alienates not to a stranger but to a member of the joint family? Before I endeavour to resolve that question, I will mention a point urged by the appellant defendant in order to put it on one side. It is said that (without conceding that the settlor here is in the position, as regards the impartible property of a person holding property as self-acquired) assuming the settlor is in the position of a person holding self-acquired property even then, under the Mitakshara, property given to a son (as here) would in the hands of the son, pass as ancestral property; for the gift is to the detriment of the family estate. The foundation of, and the answer to, this argument will be discovered by turning to Muddun Gopal Thakoor v. Ram Bukhsh Pandey 6 W.R. 71. Having quoted from the texts the learned Judges there observe: It moans no more than that property so acquired is exempt from partition amongst the brethren; 29. That is, in this case had Meenakshisundara had a son or sons, it might be a question whether between Meenakshisundara and his son or sons it was ancestral. If so, as between them it would not be exempt from partition (impartibility apart.) Even that is a matter for doubt see Lal Ram Singh v. Deputy Commissioner of Partabgarh 45 A. 596 : 76 Ind. Cas. 922 : A.I.R. 1923 P.C. 160 : 50 I.A. 265 : 26 O.C. 257 : (1923) M.W.N. 591 : 9 O. & A.L.R. 746 : 21 A.L.J. 777 : 33 M.L.T. 355 :10 O.C.L. 513 : 47 M.L.J. 260 : 29 C.W.N. 86 (P.C.) at p. 599 Page of 45 A.--[Ed.]. But bore the defendant is not the son of Meenakshisundara but a brother. It follows that even accepting Mud dun Gopal Thakoor v. Ram Bukhsh Pandey 6 W.R. 71, the property would under the Mitakshara (impartibility apart) have been exempt from partition as regards the defendant. That is the defendant could not have claimed a partition (impartibility apart) in respect of it, i.e, as against the defendant. Meenakshisundara could have claimed it: as self-acquired property not affected by joint family incidents save the incidents attaching to the joint family made up of Meenakshisundara and his son. Thus the defendant would fail if the impartible property in the hands of the settlor were treated as self-acquired property. A line of authorities was cited to show that it was self-acquired property, e.g., Katama Nachiar v. Raja of Sivaganga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 2 Sar. 25 (P.C.) at p. 588 Page of 9 M.I.A.--[Ed.]. Baboo Beer Partab Sahee v. Maharaja Rajender Partab Sahee 12 M.I.A. 1 : 9 W.R. 15 : 2 Suther 114 : 2 Sar. 348 (P.C.) at p. 33 Page of 12 M.I.A.--[Ed.] Ram Nunden Singh v. Janki Keor 29 C 828 : 29 I.A. 178 : 4 Bom. L.R. 664 : 7 C.W.N. 57 : 178 P.R. 1902 (P.C.) and Ram Kishori v. Balwant Singh 20 A. 267 : 25 I.A. 54 : 7 Sar. 279 : 2 C.W.N. 273 (P.C.). But these are cases where the raj had been confiscated and re-granted. The grantee in such a case starts the line afresh, as though there had never been a raj before, whether he is a member of the same family or even the same person as the former holder: see Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochiah Venkondora 13 M.I.A. 333 : 13 W.R. 21 : 2 Sar. 546 : 20 E.R. 576 (P.C.) at p. 341 Page of 13 M.I.A.--[Ed.]. 30. It appears to me that in this case this settlor held this impartible estate not as self-acquired property but as ancestral properly subject to the custom attaching impartibility. That left at least two rights in the family which would not have been there had his position been that of a person who holds self-acquired property, viz., the right of the joint family (including the holder's collaterals) to succeed by survivorship and the right of junior members of the joint family to claim maintenance. Because a gift by a father of self-acquired property to a son would shut out the donee's brother it does not follow that a gift by a zemindar of an impartible ancestral zemin to a son shuts out the donee's brother. 31. The result, however, will follow, directly if an alienation to a stranger and an alienation to a member of the family stand on the same footing so as to make the property in the hands of the alienee self-acquired property in both cases. As Mr. Sastri pointed out a passage in Baijnath Prasad Singh v. Teji Bali Singh 43 A. 228 : 60 Ind. Cas. 534 : A.I.R. 1921 P.C. 62 : 48 I.A. 195 : 19 A.L.J. 317 : 33 C.L.J. 388 : 40 M.L.J. 387 : (1921) M.W.N. 300 : 25 C.W.N. 564 : 2 P.L.T. 257 : 23 Bom. L.R. 654 : 3 U.P.L.R. (P.C.) 35 : 29 M.L.T. 358 (P.C.), at p. 243 beginning with the words "turning next to Gangadhara Rama Rao v. Rajah of Pittapur 41 M. 778 : 47 Ind. Cas. 351 : A.I.R. 1918 P.C. 81 : 45 I.A. 148 : 35 M.L.J. 392 : 24 M.L.J. 276 : 16 A.L.J. 833 : 28 C.L.J. 428 : 5 P.L.W. 267 : 20 Bom. L.R. 1056 : 23 C.W.N. 174 : (1918) M.W.N. 922 (P.C.)," suggests that a different result would have been arrived at that case if the claimant had accepted the donee as the father donor's son, and that he would then have had a right to maintenance. If that be so then there would appear to be a difference according as the alienation is to a stranger or to a member of the family. In Protap Chandra Deo v. Jagadesh Chandra Deo 54 C. 955 : 102 Ind. Cas. 599 : A.I.R. 1927 P.C. 159 : 54 I.A. 289 : 53 M.L.J. 30 : 25 A.L.J. 623 : 29 Bom. L.R. 1136 : (1927) M.W.N. 513 : 4 O.W.N. 650 : 31 C.W.N. 943 : 39 M.L.T. 1 : 46 C.L.J. 136 : 8 P.L.T. 623 (P.C.) however the same position was taken up as in Gangadhara Ram a Rao v. Rajah of Pittapur 41 M. 778 : 47 Ind. Cas. 351 : A.I.R. 1918 P.C. 81 : 45 I.A. 148 : 35 M.L.J. 392 : 24 M.L.J. 276 : 16 A.L.J. 833 : 28 C.L.J. 428 : 5 P.L.W. 267 : 20 Bom. L.R. 1056 : 23 C.W.N. 174 : (1918) M.W.N. 922 (P.C.) though there was a relationship. It is urged that the problem can be resolved along the following lines: Alienation is a matter of property transfer. The making or non-making of an alienation does not affect the family status; it merely affects the family wealth. If all the property is transferred to a stranger, the right to succeed exists but there is nothing to which to succeed. The right to maintenance continues, but there is nothing out of which the maintenance can be paid. (I am regarding claims against the alienor and put aside Section 39, Transfer of Property Act). There can be no partition but there can be by alienation a complete divesting of the family of property by alienating to a stranger. If the alienation is not to a alienation to a stranger, the family remains undivided; the rights of maintenance and succession remain unaffected. There is, however, a difference arising from the nature of the case. The family has not been divested of its property. One member, the member to whom the property is transferred, has got it. The fact that he and he alone has got it raises no inference that the family has no part in it. This is the common case with impartible property that one man has the sole right of enjoyment. The fact that this settlement would have the effect, had certain events occurred, of first alienating to a member of the family, then alienating to a stranger, then alienating to a member of the family, does not, it is said, affect the matter. The destruction of the rights of the other members of the family is not within the powers of the holder. Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.) decides he can alienate. If he alienates, to a stranger then, from the very nature of the case, he removes from the family the property the existence of which in the family makes the rights of succession and maintenance of some value to the family. He does not thereby destroy the right. The right lives on. The property to which it attaches goes. It does because the right is a right of succession, and a right to require a relative to maintain, i.e., rights dependent on relationship. If the relations have got no property it is a valueless right but still a right. It does not exist, it never did exist against a stranger. If the appropriate relation has got the property then the right which was never destroyed and could not be destroyed by the holder becomes valuable once more because there is something to succeed to. The answer to the above is, I think to be found in the question: "To whom is the person claiming succession claiming to succeed, the alienor or the alienee?" When the property is alienated to a stranger, the right of succession is lost because the succession is to the alienor. It clearly can make no difference if the alienation is to a member of the family. The right of succession is in that case also a right to succeed to the alienor, not to the alienee. But the alienor has divested himself. There is nothing to succeed to. Thus whether the alienation is to a stranger or to a member of the family a person claiming a right to succeed to the alienor is claiming a right of no value once it is established; (a) that the alienor had a right to alienate the property, and (b) he did not in fact alienate. 32. That the settlor here intended to alienate to Meenakshisundara so that Meenakshisundara held the property as the new stock of descent, I have no doubt, for the reason given by my learned brother; that he had the power so to alienate. I regard as settled by Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.); that the property in Meenakshisundara's hands became self-acquired and not ancestral as against collaterals--whatever may be the position as regards sons--I think follows from the reasons above given when considering Muddun Gopal Thakoor v. Ram Bukhsh Pande 6 W.R. 71. On the other hand cases like Konammal v. Annadang Jadaya Gounder 51 M. 189 : 108 Ind. Cas. 354 : AIR 1928 P.C. 68 : 55 IA 114 : 27 LW 497 : 5 CWN 441 : 54 MLJ 504 : 47 CLJ 488 : 9 PLT 347, 26 ALJ 642 : 30 Bom. LR 802 : (1928) MWN 252 : 32 CWN 983 (PC) do not really assist. Those are cases where the family succession is changed yet the right of the family remains. It is said that that is what has occurred here and, by parity of reasoning here also the family rights should remain attached to the estate. But if Konarhmal V. Annandana Jadaya Gounder 51 M. 189 : 108 Ind. Cas. 354 : AIR 1928 P.C. 68 : 55 IA 114 : 27 LW 497 : 5 CWN 441 : 54 MLJ 504 : 47 CLJ 488 : 9 PLT 347, 26 ALJ 642 : 30 Bom. LR 802 : (1928) MWN 252 : 32 CWN 983 (PC) or Naraganti Achamagaru Venkatachalapathi Nayaninar 4 M. 250, a similar case is examined it will be found that the change is not due to an alienation effected by the holder but by an arrangement come to between the members of the family effected being of sound mind and adult. In such cases there is no attempt being made by the holder to defeat the family by his unilateral act; there is merely an alteration effected within the family by bilateral act the holder on the one side, and the junior members on the other hand agreeing. In Konammal v. Annadana Jadaya Gounder 51 M. 189 : 108 Ind. Cas. 354 : AIR 1928 P.C. 68 : 55 IA 114 : 27 LW 497 : 5 CWN 441 : 54 MLJ 504 : 47 CLJ 488 : 9 PLT 347, 26 ALJ 642 : 30 Bom. LR 802 : (1928) MWN 252 : 32 CWN 983 (PC), at p. 197, the Palaiyam (or Raj) was transferred by the Poligar (or Rajah) to his second son. This was in accordance with the arrangement come to between the Poligar and the adult members of his family. Its purpose was to pass over a son of weak intellect and his son a child of tender years. The difference between that case and this is that there the other members of the family' agreed to the alienation of the estate from the Poligar to his second son. It was, by consent of the family, a substitution of one Poligar by another. The family incidents remained throughout attached. But where the property is alienated under the power declared to be possessed by the holder by Sartaj Kuari v. Deoraj Koeri 10 A. 272 : 15 I.A. 51 : 5 Sar. 139 (P.C.) does not the alienation break the connection between property and family so that the alienee, though in the family, as alienee is in the position of a stranger receiving the property; as self-acquired property to which the family rights of other members of the family can no longer attach? 33. Again cases like Vadrevu Ranganaya Kamma v. Vadrevu Bulli Rammayya 5 C.L.R. 439 : 6 C. 131, Sevagana Tenar v. Periasami 1 M. 312 : 5 I.A. 61 : 3 Sar. 795 : 2 Suther 508 (P.C.), Tara Kumari v. Chatunburja Narayan Singh 42 C. 1179 : 30 Ind. Cas. 833 : A.I.R. 1915 P.C. 30 : 42 I.A. 192 : 19 C.W.N. 1119 : 29 M.L.J. 371 : 18 M.L.T. 228 : 2 L.W. 843 : 13 A.L.J. 1034 : 17 Bom. L.R. 1012 : 22 C.L.J. 598 : (1915) M.W.N. 717 (P.C.) and Guruswami Pandiyan v. Chenna Thambiar 44 M. 1 : 61 Ind. Cas. 242 : A.I.R. 1921 Mad. 340 : 39 M.L.J. 529 : (1920) M.W.N. 660 : 28 M.L.T. 365, being cases where the family by family agreement or otherwise have become divided are not in point. No one doubts that in such cases the joint family has been broken up. In such cases the old joint family incidents including succession cease. The result in such cases is, that, as in Vadrevu Ranganaya Kamma v. Vadrenu Bulli Rammayya 5 C.L.R. 439 : 6 C. 131, a woman, the widow of the last zamindar might succeed. In Shibaprasad Singh v. Prayag Kumaru Debi 59 C 1399 : 138 Ind. Cas. 861 : A.I.R. 1932 P.C. 216 : 59 I.A. 331 : Ind. Rul. (1932) P.C. 263 : 63 M.L.J. 196 : 9 C.W.N. 691 : 36 C.W.N. 1046 : 56 C.L.J. 92 : 36 L.W. 266 : (1932) M.W.N. 923 : (1932) A.L.J. 919 : 13 P.L.T. 659 : 34 Bom. L.R. 1567 (P.C.), at p. 1413, at p. 1413 the Privy Council observed: To this extent (i.e. as regards partition alienability, maintenance) the general law of Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartiality. This right, therefore, still remain.... To this extent the estate still retains the character of joint family property... Nor is this right a mere spes succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right, which is capable of being renounced and surrendered. It follows that in order to establish that a family governed by the Mitakshara, in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention express or implied on the part of the junior members of the family to renounce their right of succession to the estate. 34. In that case, it will be observed that the family was assumed still to have an ancestral impartible estate. That is the whole point here. That is not a case where the family has become divided. In my opinion in the case of impartible estates partition cannot be brought about by alienation by the holder. This is a case where the property has been alienated. It is a case where despite the alienation the defendant claims as successor not of the alienee, basing the claim on relationship, but on the alienor, basing his claim on succession as a member of a joint family. It appears to me, however, that even if the defendant established (1) the fact that the family remained joint (2) the right of the family to succeed (3) the fact that the last holder on behalf of the family was the settlor (4) the conclusion that the defendant had the right therefore to succeed--he would fail. Be would fail because the settlor has parted with the property and there is nothing left to succeed to. For the defendant to succeed he must show a right to succeed to Meenakshisundara and this, in my opinion, he has failed to. Madras High Court Sri Sri Sri Rathnamala ... vs The Ryots Of The Mandasa Zamindari on 16 September, 1932 Equivalent citations: (1933) 65 MLJ 423 Author: Ramesam ORDER Ramesam, J. 1. These are two applications for the issue of writs of certiorari in respect of certain proceedings of the Board of Revenue under Chap. XI of the Madras Estates Land Act. In C.M.P. No. 6459 the petitioner is the Zamindarini of Mandasa in the Ganjam District. In C.M.P. No. 5155 the petitioner is the Zamindar of Seitur in the Ramnad District. Connected with the latter petition are C.M.Ps. Nos. 2310 of 1931 and 2074 of 1932 in which the petitioners are different sets of tenants in the Zamindari of Seitur. In all the petitions the first important point that arises for decision is whether a writ can be issued in respect of proceedings passed by the Board of Revenue under Chap. XI of the Madras Estates Land Act. 2. The Zamindarini of Mandasa had previously filed C.R.P. No. 192 of 1926 to the High Court in connection with the same matter. At the time when the revision petition was filed, that is, on 17th December, 1925, there was a decision of Devadoss and Waller, JJ., which held in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 Mad. 499 that a revision petition lies under Section 115, Civil Procedure Code, against a proceeding of the Board of Revenue under Chap. XI of the Act. The remedy by way of revision being open to the present petitioner according to the then existing decision, she could not then apply for a writ of certiorari. While C.R.P. No. 192 of 1926 was pending in the High Court, a Full Bench of this Court, consisting of Phillips, Odgers and Venkatasubba Rao, JJ., held in C.R.P. No. 1027 of 1924 on 12th April, 1928, that no such revision lay. But that decision, Raghunadha Patro v. Govinda Patro (1928) 55 M.L.J. 798 (F.B.), had not been reported in the authorised series and C.R.P. No. 192 came on for hearing before Wallace and Thiruvenkatachariar, JJ. They doubted the correctness of the decision in Raghunadha Patro v. Govinda Patro (1928) 55 M.L.J. 798 (F.B.) and referred the matter to a larger Full Bench. C.R.P. No. 192 then came on for disposal before a Full Bench of five Judges, Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 (F.B.), and it was held by the majority that no such revision petition lay against proceedings of the Board of Revenue under Chap. XI. The very next day the Zamindarini of Mandasa filed the present application for a writ of certiorari. In these circumstances I do not think the application ought to be refused on the ground of delay if it ought to be granted otherwise. 3. It has been strenuously argued by the respondents in these petitions that the Board of Revenue in carrying" out the provisions of Chap. XI of the Estates Land Act is an executive authority and does not act judicially and therefore no writ can be issued against them. Strong reliance was placed upon the judgment of Reilly, J. in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 (F.B.) with which my Lord the Chief Justice and myself concurred. The conclusion of Reilly, J. is expressed thus: My conclusion therefore is that the Revenue Officer when making a settlement of rents under Chap. XI of the Act is not a Civil Court. From this it follows...that the Board of Revenue when directing the revision of his proceedings under Section 172 is also not a Civil Court, and therefore that this Court cannot revise.... 4. In the course of the judgment giving reasons for this conclusion the learned Judge was considering only the question whether the Revenue Board was a Civil Court and not the question whether the Board was such an authority to which a writ of certiorari could be issued. Whatever description the learned Judge applied to the Board of Revenue, and undoubtedly at some places he described it as an executive authority, it was always in contrast to a Civil Court. In paragraph 4 he stated that the proper way to approach the question was to ascertain whether the legislature intended the Revenue Officer to discharge those functions as an executive officer or as a Court. At the end of paragraph 5 he expresses the conclusion that up to Section 167 the Revenue Officer was acting as an executive officer. Then taking up Sections 168 to 171 he stated the contention for the petitioner that he then becomes a Civil Court. In paragraph 6 he refers to Nilmoni Singh Deo v. Taranath Mukerjee (1882) L.R. 9 I.A. 174 : I.L.R. 9 Cal. 295 (P.C.) for the characteristics of a Civil Court and winds it up by saying: We are certainly not in the sphere of ordinary civil rights which can be pursued in the absence of special legislation in a Civil Court. 5. In paragraph 8 he observes that the landholder or ryot is often asking for something which no Civil Court could give. In paragraph 9 he says: "Here we are far removed from any-possible conception of a Civil Court." In paragraph 10, after describing the procedure prescribed for effecting alterations of the record, the learned Judge puts the question "Was ever a Civil Court so treated by the Executive Government?" In paragraph 11 he says that the reliefs include reliefs which no Civil Court could grant. Then he says that the procedure prescribed would be nothing less than scandalous in a Civil Court, and " on the other hand, if the work of the Settlement Officer is done as an executive officer, there is nothing really surprising or unnatural or unreasonable in the procedure". In paragraph 13 he observes that to proceed from that assumption to the conclusion that the Legislature intended to create a travesty of a Civil Court with jurisdiction and procedure, not only unlike those of any Civil Court ever heard of, but foreign to the very conception of a Civil Court, is unjustifiable. 6. I think I have given sufficient number of quotations from the learned Judge's judgment for showing that he was trying to establish that the Revenue Officer and the Board of Revenue are not Civil Courts and in one or two places he also certainly observed that the Revenue Officer was an executive officer. 7. There are other quotations which I might extract for the same purpose, but I think these are enough. It is sought to infer from these extracts that the Board of Revenue is not such an authority as would justify the issue of a writ of certiorari. I have concurred with the judgment of Reilly, J., and I have no desire to recede from the position I have taken in that judgment. But to attribute to me a decision that a writ of certiorari cannot be issued to the Board of Revenue acting under Chapter XI would be to attribute to me what I had not in my mind at all. Anantakrishna Aiyar, J. expressly touched upon this matter and made the following remarks: Decisions relating to writ of certiorari are not of any direct use here. I am not here concerned with the question whether a writ of certiorari would lie only against proceedings of a Court of Justice. It would seem that the category of bodies against which a writ of certiorari can be issued is wider than that of Courts of Justice. 8. He then refers to the judgment in Rex v. Electricity Commissioners (1924) 1 K.B. 171. It seems to me that the fallacy in the argument which seeks to infer from Reilly, J.'s judgment that the Board of Revenue is not such a tribunal as to justify the issue of a writ of certiorari consists in the assumption that an executive body could never discharge a judicial function and an executive act may not also partake of a judicial character. Now, coming to Chapter XI, up to Section 167, it may be that the functions are purely executive. But, when we come to Section 168, it deals with the settlement of a fair and equitable rent; the executive act of settlement may also be said to partake of a judicial character. One has only to look at Clause (2) which speaks of determining the rates of rent and to Clause (4) which refers to the duty of the Revenue Officer to satisfy himself that the amount of rent even when agreed upon between the landlord and tenant is fair and equitable. Section 169(2) refers to "any party aggrieved" and provides that entries shall not be revised until reasonable notice is given to the parties concerned to appear and be heard in the matter. Section 170(2) also provides that no entry shall be amended, or omission supplied, until reasonable notice has been given to the parties concerned to appear and be heard in the matter. In my opinion, though the main purpose of the functions of the Revenue Officer is to carry out an executive act, namely, the preparation of the record of rights including settlement of rent, parts of them undoubtedly are of a judicial character so as to make those functions acts of a tribunal. The determination of those portions of the record in a judicial manner is ancillary and necessary for the main executive work of preparing the record of rights including settlement of rents. The conception of an executive officer occasionally having to discharge duties of a judicial nature in the course of carrying out his executive functions is not new and occurs very frequently in Indian enactments. A Registrar has got to register documents. This is generally a mechanical act. It is purely an executive function; but, where the genuineness of a will presented to him for registration is contested, he has got to examine the witnesses for both the parties and decide the question of genuineness and then proceed to register or refuse to register it as the case may be. Here, though the final act is an executive act, for the purpose of the final act he has to discharge a judicial function and yet it is held that a Registrar of documents is not a Court. An Inam Commissioner enfranchising inams is in general carrying out executive functions; but a question as to the ownership of a certain inam or in whose name it should be enfranchised may arise, and in deciding the actual ownership he may have to discharge a judicial function, though the decision will again result in an executive act, namely, enfranchisement. It is unnecessary to give further examples in view of the English cases to which I shall presently refer and which seem to be conclusive on the matter. 9. In Rex v. Woodhouse (1906) 2 K.B. 501 the question was discussed by the Court of Appeal. There the question arose under the Licensing Act of 1904. It seems to me that the work of issuing licences to alehouses is less judicial than deciding a rate of rent between landlord and tenant. At page 512 Vaughan Williams, L. J., referring to an earlier case decided by Buller, J., says: The reporter seems by his note to doubt whether the decision in that case went beyond deciding that a certiorari would not He to return a ministerial act. He then observed: I ask myself, therefore, the question whether the licensing justices in granting or refusing a licence do a judicial act. In my opinion the grant or refusal of such a licence is a judicial act, and the judgment of Lord Halsbury in Sharp v. Wakefield (1891) A.C. 173 seems to be an authority for this view; for he says....that 'an extensive power is confided to the justices in their capacity as justices to be exercised judicially, and discretion means, when it is said that something is to be done within the discretion of the authorities, that that something was to be done according to the rules of reason and justice'. At page 513 he then observed: It is impossible to read under the title 'certiorari' in Burn's Justice of the Peace the list of the cases in which a writ of certiorari has been granted and the grounds for granting it without seeing that in practice a certiorari has issued in cases in which it is impossible to say that there was a Court and a 'Lis'. Provided that the Board of Revenue is required to do something under Chapter XI of the Estates Land Act according to the rules of reason and justice, the mere fact that it is not a Court does not matter. At page 534 Fletcher Moulton, L. J., discusses the question. He says: It is frequently spoken of as being applicable only to 'judicial acts' but the cases by which this limitation is supposed to be established show that the phrase ' judicial act' must be taken in a very wide sense including many acts that would not ordinarily be termed 'judicial'. He then proceeds to give examples. One is the case of poor rates to be settled by the Poor Law Commissioners. Another is the case of appointment of constables by Justices. He then says: The procedure of certiorari applies in many cases in which the body whose acts are criticised would not ordinarily be called a Court, nor would its acts be. ordinarily termed 'judicial acts'. The true view of the limitation would seem to be that the term 'judicial act' is used in contrast with purely ministerial acts. Can a settlement of rent between landlord and tenant be said to be a purely ministerial act? If a licence can be refused for no ground, it would be a ministerial act; but if it can be refused only on certain proper grounds, it becomes a judicial act in a wider sense of the term. The act of settling rent is an a fortiori case. In Board of Education v. Rice (1911) A.C. 179 the question came up before the House of Lords. The question arose in respect of a decision of the Board of Education, a body which must be described as far less judicial than the Board of Revenue in determining the rates of rent. Lord Loreburn, at page 182, observed that the Board of Education are not bound to treat their enquiry as though it were a trial; they have no power to administer an oath, and need not examine witnesses ; they can obtain information in any way they think best always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. It is true that Reilly, J., in the Full Bench judgment observed that the Revenue Officer may act upon his own experience. But the mere fact that such information can be used cannot make the act less a judicial act after these observations of Lord Loreburn. Lord Loreburn then says: But if the Court is satisfied that the Board have not acted judicially in the way I have described, ...then there is a remedy by mandamus and certiorari. In Rex v. Electricity Commissioners (1924) 1 K.B. 171, the decision quoted by Anantakrishna Aiyar, J., in the Full Bench judgment, Atkin, L.J., discusses the matter at page 204. At page 205 he says: But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority, to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs. Can it be said that the Board of Revenue is not a body of persons having legal authority to determine "questions affecting the rights of subjects "? Is not determination of rent a matter affecting the rights of subjects? Atkin, L.J., then gives examples. The first is fixing a rate for the repair of a county bridge and the case of Poor Law Commissioners prescribing the constitution of a Board of guardians in a parish. He also refers to Board of Education v. Rice (1911) A.C. 179, the case of the Board of Education, and the case under the Licensing Act. The actual case before him was a case relating to the duties of Electricity Commissioners. Here again I may observe that it is a body far less judicial than the Board of Revenue in determining the question of rent. In Frome United Breweries Co. v. Bath Justices (1926) A.C. 586 at 602 Lord Atkinson quotes from the oft-quoted judgment of May, C.J., in the Irish case of Reg. John M'Evoy v. Dublin Corporation (1878) 2 L.R. Ir. 371. There the corporation made illegal payments and then imposed a borough rate to make up the deficiency. It was held that a writ of certiorari will lie. May, C.J., observed: It is established that the writ of certiorari does not lie to remove an order merely ministerial, such as a warrant, but it lies to remove and adjudicate upon the validity of acts judicial. In this connection the term 'judicial' does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances and imposing liability or affecting the rights of others. Here I pause and observe that certainly the Board of Revenue in settling the rent is doing an act with competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights of others. This definition of May, C.J., was approved by Palles, C.B., in two subsequent cases and Lord Atkinson quotes the opinion of May, C.J., with approval. The actual case before him was a licensing case in respect of breweries and Lord Atkinson says that the case before him resembled the case in The Queen v. London County Council (1892) 1 Q.B. 190 where there was a question of licence for music and dancing. The case in Rex v. Minister of Health (1929) 1 K.B. 619 related to a writ of prohibition to the Minister of Health. Lord Hewart, C.J., quotes with approval the judgment in Rex v. Electricity Commissioners (1924) 1 K.B. 171 where it was pointed out that both the writs are on the same footing. The case in Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 is a case from Australia. It was very much relied on before the Full Bench and Anantakrishna Aiyar, J., has dealt with it in his judgment. At page 296 Lord Sankey observed: The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. 10. Within the meaning of this observation we can certainly say that the Board of Revenue is not a Court; but can we say that it is not even a tribunal? At page 297 the Lord Chancellor enumerates some negative propositions. He says: (i) A tribunal is not necessarily a Court in this strict sense because it gives a final decision, (ii) Nor because it hears witnesses on oath, (iii) Nor because two or more contending parties appear before it between whom it has to decide, (iv) Nor because it gives decisions which affect the rights of subjects, (v) Nor because there is an appeal to a Court, (vi) Nor because it is a body to which a matter is referred by another body. 11. He then refers to Rex v. Electricity Commissioners (1924) 1 K.B. 171. The reference shows that these negative propositions were stated for the purpose of showing that the tribunal which he was discussing, namely, the Board of Review, was not a Court in the strict sense of the term. By quoting these negative propositions it was not meant to say that they were not a tribunal in any sense of the term. In that particular case it was contended that the constitution of the Board of Review was such as to contravene Section 71 of the Constitution of Australia which applied to Courts in the strictest sense so called and it was held that the Board of Review was not a Court and Section 71 of the constitution was not contravened. But all this does not involve any decision that the Board of Review is not even a tribunal and I do not see how this case can be relied on by anybody for the purpose of showing that the Board of Review is not a tribunal in a loose sense. The observations at page 298 are still more pertinent: An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called. 12. The Revenue Officer and the Board of Revenue may remain purely administrative authorities, but still they are administrative tribunals and may have to act judicially in at least some portions of their work. The next sentence also shows the same thing: Their Lordships find themselves in agreement with Isaacs, J., where he says: 'There are many functions which are either inconsistent with strict judicial action...or are consistent with either strict judicial or executive action'. 13. Lower down they observe: They (Board of Review) are another administrative tribunal which is reviewing the determination of the Commissioner who admittedly is not judicial, but executive. 14. After the English decisions I have examined above, in my opinion it is unnecessary to examine the Indian decisions on writs of certiorari cited before us, viz., Venkataratnam v. Secretary of State for India (1929) I.L.R. 53 Mad. 979 : 60 M.L.J. 25, Muniswami Chetty v. Board of Revenue, Madras(1930) I.L.R. 55 Mad. 137 : 61 M.L.J. 479 and Venkata Narasimha Rao Bahadur v. The Municipal Council of Narasaraopet (1930) 60 M.L.J. 260. There is nothing in any of these decisions which is inconsistent with the position I have laid down above. The learned Government Pleader appearing for the Board of Revenue relied on the use of the word "non-judicial" in Odgers, J.'s judgment in the Full Bench case already mentioned, Raghunadha Patro v. Govinda Patro (1928) 55 M.L.J. 798 (F.B.). Odgers, J. was not considering a question of writ of certiorari; he must have used the word "non-judicial" in the sense of not strictly judicial. If he meant more, I do not agree with him. But I do not think he meant anything more than what I have said. In my opinion, therefore, provided the case is a proper case for issuing a writ, there is no objection in issuing a writ of certiorari in respect of proceedings of the Board of Revenue under Chapter XI of the Estates Land Act. 15. Having come to the conclusion that we have got power to issue a writ, the next question that arises is whether the facts of the particular cases before us justify the issue of such a writ. I first take up the case of the Zamindarini of Mandasa. In that case the Board of Revenue, after dismissing an appeal under Section 171, took up the matter of its own motion on the suggestion of His Excellency under Section 172 and passed an order reducing the rate of rent by three annas in the rupee throughout. On the merits of the case we cannot say how far this has prejudiced the Zamindarini. We must assume at least that it was done by the Board fairly and impartially with a view to arrive at what is a fair and equitable rate between the landlord and tenant. It is just possible in the case of an individual holding that such reduction may not be justified; but apart from such a suspicion it must be taken until the contrary is shown that the result arrived at is fair and equitable. The complaint made before us by the petitioner is that under Section 172 the Board has no power to alter the record of rights itself, but it can only direct the revision of the record of rights or any portion of it by the Revenue Officer. It seems to me that the phrase "direct the revision" cannot enable the Board to proceed to revise the record itself but can only mean that it should direct the revision by some other officer. The "some other officer," revision by whom is to be directed, can only be the Revenue Officer who made the original settlement. It cannot mean the confirming authority under Section 170 or the superior Revenue authority which hears appeals relating to objections made under Section 169 (which happens to be the Board by the rules of the Local Government). Undoubtedly, therefore, I agree with the petitioner that there has been an irregularity of procedure. But should we issue a writ of certiorari merely because of an irregularity of procedure without any further inequitable consequences appearing on the face of the order? If the Board had merely passed an order giving reasons for some reduction to the extent of three annas in the rupee and then directed the revision by the Revenue Officer in the light of the observations made by the Board, in the main the same result would have been arrived at in revision by the Revenue Officer. Certainly it could not have made a substantial difference. Therefore, unless we are satisfied that the irregularity led to some substantial injury, I do not think we ought to issue a writ. It is complained that, whereas if it come to the Revenue Officer there will be a right of suit before a Civil Court under Section 173 of the Act, there is no such right of suit to question the order made by the Board itself. In the first place, this result is not very clear. Under Section 173(3)(d) the only ground relating to rent in the civil suit is that any entry made under Clauses (e) and (j) of Section 165 is incorrect. But this entry relates to "rent lawfully payable at the time the record is being prepared" and how it has been fixed. It does not look as if a new rate of rent fixed by the Revenue Officer under Section 168 or 169, or the amendment made by the confirming authority under Section 170, or by the Board, if any, under Section 171, can be questioned before the Civil Court. I do not wish to express any final opinion on the matter and it must be taken that these criticisms are only tentative. On the other hand it may be said that no purpose can be achieved by giving a right of suit before a Civil Court to question the rate of rent payable at the time the record is being prepared and not the rate of rent fixed as fair and equitable under Sections 168 to 171. This is no doubt a pertinent consideration and, if this interpretation is correct, undoubtedly the Zamindar is deprived of such a right of suit by the Board acting itself under Section 172 and not sending it back to the Revenue Officer. But, while on the one hand I am unable to decide between the two possible interpretations, I am also doubtful whether we should issue a writ for the purpose of correcting an irregularity of procedure so as to result in giving the Zamindar a fresh remedy without being satisfied on the merits that some kind of interference on our part is called for. On the whole, therefore, I am of opinion that no writ ought to be issued in the case of the Zamindarini of Mandasa. But, having regard to the irregularity of procedure adopted by the Board, I would dismiss the petition without costs. 16. I now come to the case of the Zamindar of Seitur. In this matter the complaint does not relate to Section 172 but only to Section 171. There was an appeal under Section 171. On this appeal an order was passed by the Board of Revenue (Mr. Cotton) laying down certain principles and sending the case back to the Revenue Officer. The Revenue Officer "expressed a difficulty in working out the rents in accordance with the principles enunciated by the Board". Except a statement to that effect in the subsequent order of the Board we have no other paper on the record showing exactly what he did. However, on his expressing the difficulty, the Board (Mr. Souter) then proceeded to fix the rents on the basis of the information available on the record. It does not appear that Mr. Souter proceeded to fix the rents on the principles stated by Mr. Cotton. A perusal of his order shows that there are new matters introduced in his order which were not the subject of the proceedings before Mr. Cotton, particularly the matter referred to in paragraph 3 of Mr. Souter's order relating to illegal cesses, cartage and merchants' profits. Mr. Souter did not hear the parties again before passing his order and it is possible that some injustice might have been done to the Zamindar in fixing the amount to be deducted on account of illegal cesses without hearing him. Mr. Varadachariar strenuously contended that an appeal ought not to be disposed of without hearing the parties. The language of Section 171 is in very strong contrast to that of Sections 169, 170 and 172, and a proviso similar to the provisos in these three sections does not appear in Section 171. I am unable to agree with the contention of Mr. Varadachariar that disposal of an appeal under Section 171 by the Board without hearing the parties is ultra vires or bad for illegal exercise of jurisdiction. It is true that it is desirable to hear the parties when not merely one or two trivial points but a question relating to the rate of rent in regard to a whole zamindari consisting of eight villages and the amount of cess that ought to be deducted on the ground of illegality arises in appeal. But merely on this ground I do not think we would be justified in issuing a writ. Perhaps the Legislature may suitably amend Section 171 and bring it into a line with the other sections. But there is another matter in this case which requires our interference. Some of the tenants have filed a petition for a writ, C.M.P. No. 2074. Their case is that certain lands whose extent is 84 acres and 241/2 cents in Kovilur village were granted to them by a registered document, dated 12th July, 1895, on the footing of pannai lands on a permanent favourable rate of rent. Under Section 185 of the Estates Land Act any document showing that lands were let out by the Zamindar as pannai lands ought to be considered whenever the question whether a land is pannai or ryoti arises. Regard should be had to such a fact and the fact cannot be ignored. The ryots say that they spent large sums of money for reclaiming the lands. All pannai lands are excluded from the Estates Land Act and no record of rights under Chap. XI can be made with regard to them. The Revenue Officer who made the record of rights took them into consideration. He however made a note that the rent was fixed by agreement between the Zamindar and tenants and he fixed a rate which is practically the same as the rate fixed in (Ex. A. Notices were issued to the tenants, but they did not appear to object as they were satisfied with the rate of rent fixed by the Revenue Officer and the mere name of the lands, whether ryoti or pannai, did not matter to them. But in the revised rolls published under Section 169 these lands were shown at an enhanced rate of rent. The ryots appealed to the Board of Revenue under Section 171 and Mr. Cotton in his first order observed: All reference to pannai lands which may be given out for cultivation at the proprietor's discretion should be definitely excluded from the settlement record. 17. He intended that the Revenue Officer to whom the matter went back should enquire into the question of pannai lands and if any lands are found to be pannai lands he should exclude them from the record. But, as I have already mentioned, the Revenue Officer did not act upon Mr. Cotton's order, and Mr. Sorter's order makes no reference to pannai lands at all. It is conceded by all the parties in this case that if the lands are pannai they ought to be excluded. It is contended by the Zamindar and the other tenants that hereafter it may be shown by the petitioners in C.M.P. No. 2074 that the lands are really pannai and if so the record of rights as finally made by the Board would not apply to them. But surely this is highly irregular. The very object of Chapter XI of the Act is to settle and make definite the rights of parties and we cannot have entries in such a record which are contingent in their operation, that is, which will have one effect if the entries are found in one way hereafter and another effect if the facts are found in another way. Such an entry is most undesirable in a record of rights. If the question arose as to whether certain lands are pannai, the fact must be found whether they are so or not and if they are found to be pannai they ought to be excluded from the record of rights. Failure to enquire into this question is failure to exercise jurisdiction vested under Chap. XI which justifies the issue of a writ according to all the English cases. It is not clear that only the petitioners in C.M.P. No. 2074 suffered by this erroneous entry. It may be that the entry is ultra vires and may not bind them and it may be that it is open to them to show hereafter in some other proceedings that the entry is ultra vires. But the rent on the other lands having to be fixed on an average so as not to make substantial reduction in the income of the Zamindar on the whole, which was the principle adopted by Mr. MacEwen, the Revenue Officer, and Mr. Souter, it seems to me that the rate of rent due to the Zamindar on the rest of the lands in the zamindari might have been fixed lower than the proper rate on account of the erroneous enhancement in the rent of the lands claimed to be pannai. If the rent on pannai lands is reduced correspondingly the rents on the other lands or some of them may have to be enhanced if the total payable to the Zamindar is not to be diminished. I do not say this ought to be done. All that I say is, it may have to be done on the principles accepted by Mr. MacEwen and Mr. Souter. So that, in my opinion, a writ ought to be issued quashing the whole proceedings, the main object of the writ being to enable the Board to again enquire into the question of pannai lands and then make the consequential reduction in the case of the other lands if they think it proper to do so. I may here observe that, there being a justifiable complaint by the Zamindar that he was not heard about the proportion of the rates which may be said to be illegal and, having regard to the argument that if he had been heard he would be able to show that only a small portion of the rent should be reduced on account of illegal cesses, and that only in some villages, the Board may well hear the Zamindar on such a point as the whole case is again open before them. But beyond this suggestion, I cannot say anything more. A writ will issue accordingly. 18. The petitioners in C.M.P. No. 2074 will get their costs in this petition. The other parties will bear their own costs. Pakenham Walsh, J. 19. These petitions relate to two orders of the Board of Revenue, the first in connection with the Mandasa Estate in Ganjam District and the second in connection with the Seitur Estate, Ramnad District. 20. Mandasa Estate. - On a settlement of the Mandasa Estate appeals were filed to the Board of Revenue under Section 171, Estates Land Act, against the Special Revenue Officer's order but were dismissed as out of time. Subsequently the ryots waited on His Excellency the Governor when he was touring in the Ganjam District for a review. This request was forwarded to the Board of Revenue who, after notice, acting under Section 172, revised the settlement. 21. A preliminary objection had been raised before the Board that they had no such power. This was overruled by Mr. T. Raghavayya, Commissioner of Land Revenue and Settlement, by his order, dated 27th October, 1925, and his successor, Mr. MacMichael, subsequently revised the rates by his order, dated 17th December, 1925, in the manner narrated by my learned brother. The Rajah of Mandasa invoked the aid of the High Court in revision in C.R.Ps. Nos. 192 and 1109 of 1926. At the time those revision petitions were filed, Devadoss and Waller, JJ. had held in Valluri Narasimha Rao v. The Ryots of Peddamamidipalli (1925) I.L.R. 49 Mad. 499 that the High Court had revisional power over the order of the Board of Revenue on appeals filed under Section 171 of the Estates Land Act. They followed Ramasami Goundan v. Kali Goundan (1918) I.L.R. 42 Mad. 310 : 36 M.L.J. 571 but that was not a case under Chapter XI. But on 12th April, 1928, a Full Bench of three Judges held by a majority of two in Raghunadha Patro v. Govinda Patro (1928) 55 M.L.J. 798 (F.B.) that the High Court had no revisional power either under Section 115 of the Code of Civil Procedure or under Section 107 of the Government of India Act to revise orders passed by the Board of Revenue under Chap. XI of the Estates Land Act or under Section 205 of that Act. That case concerned a matter falling under Section 205 only but the two majority Judges, Phillips and Odgers, JJ., answered also the question relating to Chapter XI in the negative. The dissenting Judge, Venkatasubba Rao, J., declined to answer the question so far as it related to Chapter XI. When the matter therefore came before Wallace and Thiruvenkatachariar, JJ., they referred it to a Full Bench. It has now been held by a Full Bench of five Judges, Sundaram Chetti, J., dissenting, in Rajah of Mandasa v. Jagannayakulu (1931) 63 M.L.J. 450 (F.B.) that the High Court has no power to interfere in revision with a decision of the Board of Revenue under Chapter XI. That decision related to revisional power only. The present petitioners seek to invoke the power of the High Court under a writ of certiorari. This matter was alluded to by Anantakrishna Aiyar, J., in the Full Bench case but merely to say he was not concerned with it. Of the petitions before us, CM.P. No. 6459 is by the Zamindarini of Mandasa against the ryots of the zamindari and relates to the order passed by the Board of Revenue under Section 172. 22. Seitur Estate. - The second order of the Board with which we are asked to interfere in revision is one of Mr. Souter,. Commissioner of Land Revenue, on 19th June, 1930, under Section 171, on certain appeals preferred from the orders of the Settlement Officer deputed to settle the Seitur Estate. The facts leading up to this order are as follows: The Special Settlement Officer, Mr. MacEwen, carried out under Section 168 a settlement of rents for the eight villages comprising the Seitur Zamindari. He submitted his order to the Collector of Ramnad for confirmation. The latter returned it for revision. Meanwhile certain appeals had been preferred to the Board under Section 171. These came before Mr. C.W.E. Cotton, the Commissioner of Land Revenue and Settlement. He passed proceedings on 21st October, 1929, returning the Special Settlement Order for revision on certain lines. The Special Settlement Officer reported that he found difficulty in working out the settlement on the lines indicated. Accordingly Mr. Souter, who had succeeded Mr. Cotton, took the matter up and passed final orders himself settling certain rates. 23. With that order we are asked to interfere by writ of certiorari. The petitions connected with it are C.M.P. No. 5155 of 1930 by the Zamindar and C.M.P. No. 2074 of 1932 by certain of the ryots who claim that lands which they hold are pannai and were therefore wrongly included in Mr. Souter's order. C.M.P. No. 2310 of 1931 is a petition by certain ryots for stay of the Board's order. 24. As there is a common question involved in all the petitions with regard to the power of the High Court to interfere by a writ of certiorari in proceedings of the Board under Chapter XI, all the petitions have been heard together. I agree with my learned brother that we should not refuse to entertain them merely on the ground of the delay in their presentation, which is due to the change in the view of the law. 25. Two questions fall to be decided: 1. Has the High Court power to interfere by a writ of certiorari in proceedings under Chapter XI? 2. If so, should we interfere in either of these cases? 26. With regard to the first question, as we are dealing with only one aspect of Chapter XI, namely, the settlement of rents, I would prefer to confine my decision solely to the matter of rent settlement. In favour of our power of interference by certiorari, Mr. Varadachari argues that the settlement of rents is a matter deciding a dispute between the landholder and the ryots and imposing obligations on the subject, and that, although, according to the ruling of the Full Bench, the Settling Officer is not a Court, yet he acts judicially. The learned Government Pleader, Mr. Venkataramana Rao, on behalf of the Board of Revenue argues that the whole scheme of Chapter XI is to make the procedure under it a purely executive function, that the record of rights prepared under Sections 164 to 167 can be undertaken, if the Local Government thinks fit, without any request from anyone, and that under Section 166(2) the only force of the publication of such a record of rights is that it shall be presumed to be correct until the contrary is proved [Section 167 (3)]. Proceeding to the settlement of rents, he points out that under Section 168 it may be made on the application of the landholder or of the holders of not less than one-fourth of the total extent of the holdings. It may therefore be made without any request on the part of the ryots, and, even when it is made on the request of the latter, it may be against the wishes of three-fourths of them. There need be no dispute between the parties at all with regard to the rents fixed. The Revenue Officer under Section 168(4) may even settle a different rent as fair and equitable from that agreed upon by the parties themselves. So he argues that the discretionary power of the Revenue Officer is unlimited. Some of these powers have been enumerated in the judgment of Reilly, J., who says: He can use the presumption that the existing rent is fair and equitable; but, if something comes to his notice or is disclosed by his experiments which proves that it is not so, he must proceed on such material as he may find available. If some ryots prove that their rents are inequitable, he cannot refuse to apply the result to other similar cases merely because the ryots concerned take no part in the proceedings. 27. It would even seem that contracts or decisions of Courts settling the rates will not necessarily bind the Revenue Officer in the matter of fixing a fair and equitable rent. The confirming officer, the District Collector, may sit in his office miles away and confirm the settlement without giving any of the parties concerned an opportunity of being heard. Hence Mr. Venkataramana Rao argues that none of the parties have any rights at all to be adjudicated upon and that in fact the transaction is a great act of State such as the Inam Settlement has been described by the Privy Council to be, and he quotes Bhashyam Aiyangar, J., in Madathapu Ramaya v. The Secretary of State for India (1903) I.L.R. 27 Mad. 386 at 396 : 14 M.L.J. 37 (F.B.). 28. In reply to this Mr. Varadachari points out that it is not necessary that there should be a "lis" in order to make the matter one in which a writ of certiorari can be issued; vide Rex v. Woodhouse (1906) 2 K.B. 501. He also points out that, though a settlement of rents might be conducted without any "lis", yet in these particular cases there certainly was a "lis" or dispute between the Zamindar and the tenants. 29. I cannot accept the contention of the learned Government Pleader that neither the Zamindar nor the ryots have got any rights and that the Settling Officer's act is therefore a pure act of State. The question whether a settlement between the Government and its own ryots is an act of State need not be discussed here but even in that case Bhashyam Aiyangar, J., remarked in Madathapu Ramaya v. The Secretary of State for India (1903) I.L.R. 27 Mad. 386 at 14 M.L.J. 37 (F.B.) at p. 398: An assessment which is prohibitive and manifestly in excess of what the land may produce is clearly ultra vires of Government and such action of the executive is not exempted from the jurisdiction of the Civil Courts. 30. In a zamindari, as stated by Reilly, J., the rajabhagam which the State is entitled to collect from the ryots represents the traditional Government share of the produce of the land which, if there was no Zamindar, would be collected by the Government direct. This rajabhagam Government by the Permanent Settlement has left the right of collecting to the Zamindar who in return pays the Government peishcush. Now, if the contention of the learned Government Pleader be correct, it would be open to the Settling Officer to say that the ryots need pay no rent at all or a ridiculously small one to the Zamindar, but the latter would still continue to be liable to pay peishcush to Government while he could not collect the amount of peishcush from the ryots. This extreme case shows that the argument that neither party has got rights to be decided is untenable. 31. There have been several dicta as to the cases in which a writ of certiorari will lie. One of those most frequently quoted is that of May, C.J., in Reg. John M'Evoy v. Dublin Corporation (1878) 2 R. Ir. 371, which is mentioned by my learned brother and which I need not therefore repeat. As stated by him it was quoted with approval by Palles, C.B. in In re Local Government Board, Ex parte Kingstown Commissioners (1885) 16 L.R. Ir. 150 and later by Lord Atkinson in Frome United Breweries Co. v. Bath Justices (1926) A.C. 586 at 602. As to the meaning of "acting judicially" the learned Government Pleader drew our attention to the definition of "judicial power" quoted in Shell Company of Australia, Ltd. v. Federal Commissioner of Taxation (1931) A.C. 275 at 295 as given by Griffith, C.J., in Huddart, Parker & Co. v. Morehead (1909) 8 C.L.R. 330 at 337, who says: I am of opinion that the words 'judicial power' as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action. 32. Mr. Venkataramana Rao argues that because the Board of Review was held in that case not to have exercised the judicial power of the Commonwealth in reviewing the decision of the Commissioner of Taxation therefore the Settlement Officer in the present case or, to be more correct, the Board of Revenue was not acting judicially. This argument, however, ignores the difference between "judicial power" and "acting judicially". What was denned in that case was "judicial power" and not "acting judicially". The matter at issue there was whether the Board of Review exercised the judicial powers of the Commonwealth. If it did, under Section 71 of the Constitution the tenure of office by its members other than a life tenure (subject to the power of removal contained in Section 72) was illegal and as the tenure was not for life it followed that the Board of Review was not exercising the "judicial power" of the Commonwealth. The distinction between this and an administrative tribunal acting judicially is clearly seen from the passage at page 298 quoted by my learned brother. Certain negative propositions mentioned on page 207 have also been quoted by him and I need not repeat them. I agree with him that when Odgers, J., in the Full Bench case, Raghunadha Patro v. Govinda Patro (1928) 55 M.L.J. 798 (F.B.), used the word "non-judicial" at page 810 he was distinguishing the executive function under Chapter XI from those of a Court. If otherwise, I would agree with my learned brother in dissenting from him. As to the varied sorts of cases in which it has been held that a writ of certiorari will lie my learned brother has fully enumerated them. I may perhaps however note some cases quoted on the other side. In Sri Iskwarananda Bharathi Swami v. The Board of Commissioners for Hindu Religious Endowments, Madras (1932) 63 M.L.J. 254 it was held that, in an application to a District Court under Section 84(2) of the Madras Hindu Religious Endowments Act in respect of a decision arrived at by the Board on the question whether an institution was a mutt or temple within the meaning of the Act, the jurisdiction of the Court is not restricted to that of an appellate or revisional tribunal. This merely amounts to saying that the Board is not a Court. In re Mrs. Besant (1916) I.L.R. 39 Mad. 1164 : 32 M.L.J. 151 was a case of security for a printing press. A remark of Abdur Rahim, J. at page 1176 may perhaps be quoted. He says: Our attention has been drawn to many English cases in which writs of certiorari have been issued by the King's Bench in England. In some of them it looks as if the line of differentiation between judicial and administrative acts is very faint. But, whether any particular function was of a judicial character or not in those cases depended on the provisions of the particular statutes concerned and no good purpose would be served by reviewing them. 33. In that case the keeper of the press was liable under the law to give security and the action of the Chief Presidency Magistrate calling for such security was held to be purely executive and not capable of being interfered with by writ of certiorari. 34. Venkata Narasimha Rao Bahadur v. Municipal Council of Narasaraopet (1930) 60 M.L.J. 260 was a case of mere record in a minute book by the Chairman of a Municipal Council of the result of a poll as declared by the Presiding Officer. In Desi Chettiar v. Chinnasami Chettiar (1928) 56 M.L.J. 162 it was held that the act of a President in conducting a scrutiny of nominations to the new electoral roll was purely a ministerial act. I hold therefore that in the present case the settlement of rents, whether in the first instance by the Revenue Officer or finally by the Board of Revenue, was an act deciding disputes between the parties and also imposing liabilities. It was therefore liable to be interfered with by a writ of certiorari. So I agree with my learned brother that the first question must be answered in the affirmative in the present case but I should like to guard myself against saying that every action of an executive officer under Chapter XI is liable to be interfered with in certiorari. 35. Turning now to the merits, it has to be seen whether the orders appealed against are so beyond the jurisdiction of the Board or so contrary to justice that the writ should be issued. I take first the Mandasa case (C.M.P. No. 6459). I have already indicated how the Board came to pass a revised rate of rent under Section 172. They gave notice and heard the parties before doing so, so that there is no objection to their conduct under this head. But the argument is that all they were entitled under Section 172 to do was to send back the record of rights for revision and not to revise it themselves. The section runs: The Board of Revenue may, in any case, on application or of its own motion, direct the revision of any record of rights, or any portion of a record of rights, at any time within two years from the date of the final publication under Sub-section (2) of Section 166 or, if there has been a settlement of rent under Section 168, two years from the date of republication under Sub-section (3) of Section 170 but not so as to affect any order passed by a Civil Court under Section 173: Provided that no such direction shall be made until reasonable opportunity has been given to the parties concerned to appear and be heard in the matter. 36. It is pointed out that Section 176 states that, subject to the provisions of Section 173, all rents settled under Sections 168 to 170 and entered in a record of rights finally published under Section 166, or settled under Section 171, shall be deemed to have been correctly settled and to be fair and equitable rent within the meaning of the Act. This section does not mention Section 172. 37. Section 173 which gives the right of suit in certain cases to a person aggrieved by a settlement of record prepared under Sections 168 to 171 similarly does not mention Section 172. But Section 179says: No suit shall be brought in any Civil Court in respect of any order directing the preparation of a record of rights under this chapter, or in respect of the framing, publication, signing or attestation of such a record or of any part of it, or, save as provided in Section 173, for the alteration of any entry in such a record of rent settled under Sections 168 to 172. Here we find Section 172 mentioned, but it seems clear that, as Section 173 does not provide for a suit against a revision under Section 172, this Section (179) will not provide one. The sections of this chapter, as has been remarked more than once, are extremely difficult to construe and several of these difficulties have been noticed in the Full Bench judgment. In the present case the appeals filed in the Board of Revenue under Section 171 were dismissed as time-barred and doubtless the result of the revision by the Board under Section 172 is that a party may be deprived of a right of suit which he would have had under Section 173, the time for institution being six months from the date of final publication of the record of rights under Sub-section (3) of Section 170 or six months from the date of disposal of the appeal. While Section 172 gives the Board of Revenue two years from the date of the final publication under Sub-section (2) of Section 166 or, if, there has been a settlement of rent under Section 166, two years from the date of re-publication under Sub-section (3) of Section 170, an order passed by a Civil Court under Section 173 is no doubt expressly exempted from interference by a revisional order of the Board under Section 172, but parties who had no grievance under the original order or whose grievance had been redressed in appeal under Section 171 might find themselves, if aggrieved by a revisional order under Section 172, time-barred in the matter of bringing a suit under Section 173 and in any case appear to have no right of suit against the order of revision under Section 172. It is argued that this result could not have been intended whereas, if we understand the words "direct the revision of any record of rights" to mean that the record has got to be sent back to the Revenue Officer, in which case there will be fresh opportunities of objection and appeal, this disability is removed. On this point I think that, unless this reading of the section is the only possible one, we should not interfere on a mere hypothetical construction or hold that the Board exceeded its jurisdiction. The interpretation of Section 172 suggested has no doubt attractions, but I find some difficulty in reconciling it with the proviso to Section 172 which runs: No such direction shall be made until a reasonable opportunity has been given to the parties concerned to appear and be heard on the matter. 38. If the Board has determined that the record must be revised the parties could not raise any intelligible objection to the mere sending of it back to the Revenue Officer for this purpose; and it seems hardly likely that the Board should waste its time in hearing objections to the proposed revision itself when the parties will have a fresh opportunity of raising all objections in filing appeals when the record is sent back for revision. The section read with Sections 176 and 179 is undoubtedly obscure and I am not prepared to hold that the Board exceeded its jurisdiction. 39. Another aspect of the matter as noticed by my learned brother is this: - Assuming the power of the Board is only to order the revision, they will order it along certain lines. The Settlement Officer will have no choice except to follow these directions laid down by the Board of Revenue. Consequently for all practical purposes the record will be made in accordance with the directions of the Board of Revenue. Therefore the difference between revising the record itself and ordering its revision is largely formal. 40. In this connection may perhaps be mentioned another difficult matter as to what precisely is the scope of the suit which can be brought under Section 173(3)(d) which states that one of the grounds on which a suit can be filed is that an entry made under Clause (d) of Section 165 is incorrect. Does this mean that a suit can be brought against the fair rent settled by the Revenue Officer under Section 168, or by the Board on appeal under Section 171? This matter was discussed by Reilly and Anantakrishna Aiyar, JJ. in the Full Bench case, though it was not necessary for them to give a final decision on it, nor have we got to do so. Reilly, J. held that a suit could be brought on the ground that the rent settled under Sections 168 to 171 was not correct. He held that otherwise an aggrieved person having merely a right to contest the rent lawfully payable at the time the record is being prepared, that is to say, the rent for the previous year, gains a mere barren privilege. Anantakrishna Aiyar, J. was inclined to take the opposite view though he says that he should have been glad to be able to arrive at the conclusion that the rate of rent fixed under Chapter XI could be challenged in the Civil Courts. I do not agree with Reilly, J., that the power to challenge by the suit the rent entered in the record of rights as payable at the time the record is being prepared, that is, the rent for the previous year, is altogether a barren privilege because the landlord might have to sue for rent, say for the fasli prior to the settlement of the fair rent. Under Section 167(3) every record of right published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until the contrary is proved. It may be material for the landlord to dispute the correctness of this entry in a civil suit and therefore rebut the presumption which arises from it when he sued for the rent of a previous fasli. To my mind the words of Section 165(e) are very clear and I do not see how the rent lawfully payable at the time the record is being prepared can possibly mean the fair rent subsequently to be settled by the Revenue Officer. In this matter I would agree with Anantakrishna Aiyar, J., but I cannot say that I share his feeling as to the desirability that the rate of fair rent fixed under Chapter XI should be the subject of trial by a Civil Court. Reilly, J. 41. Himself states that no Court without special legislation could give the Zamindar or the tenant anything but the lawful rent if they filed a suit. A Civil Court could not disregard contracts or decisions of Courts and proceed to act on its own knowledge and on other evidence not admissible in a Court of law, or reject a rent agreed on by both parties. It seems to me that it would be setting the Civil Court an impossible task to call on it to determine the fair rate of rent and this is a further reason for reading the words of Section 165(e) in their natural sense. Therefore, although the power of the Board of Revenue to revise under Section 172 the settlement of rent at a time when a suit under Section 173 will be barred may deprive the party of some remedy by way of suit under Section 173, it will, in my opinion, be only the deprivation of a minor remedy. In any case it is not for the Courts to re-write the Act. I agree with my learned brother that no writ of certiorari should be issued in regard to Mandasa Zamindari. I do not disagree with his order as regards costs in that case. 42. Turning now to the merits of the Seitur case, this is not an order of the Board of Revenue under Section 172 but an order passed on certain appeals under Section 171. To understand the position it is necessary to give a short account of what happened. The Settlement Officer, Mr. M. MacEwen, found widely different rates being paid on similar lands in the Seitur village. To quote the first order, dated 12th October, 1928, he says: The Zamindari accounts reveal a most extraordinary jumble of rates for both wet and dry lands. Practically every ayacut contains both cash rent lands and waram lands and the cash rates show the most incongruous variation. 43. He continues: This state of affairs is due partly to years of litigation resulting in a wide diversity of rents fixed by different Courts at different times. It is also due in part, in my opinion, to the very haphazard business methods employed in years gone by in fixing the rents. I asked the present manager if he could explain the system under which rents were arrived at fifteen and twenty years ago; he confessed his inability to do so; and I am led to assume that the previous landlords took just as much as the tenants would give them. A further complication, the most embarrassing of all - as far as Settlement work is concerned - is that in many cases wet lands have been granted at favourable rates. In some cases this favourable treatment was due to personal friendship, in some cases it was reward for services rendered and in the majority of cases it was in consideration of premiums paid to the landlord. 44. Then he goes on to say: One of the main virtues of a settlement of rents is the standardising of the rates by which the ryot knows exactly where he stands, and varying charges are directly opposed to the fundamental idea of a settlement. Nor can I entertain the objection that the systematic blocking of wet lands is wrong. I have shown in paragraph 3 above that the existing wet rents are hopelessly erratic. The only method of dealing with this jumble is to treat alike lands that are alike in situation and fertility. 45. As I understand his order, he proceeds in the case of wet lands to take the total amount now paid for lands under each ayacut and to work up to that amount by grouping the lands with reference to their fertility, position, etc. 46. When this order went up to be confirmed, the Collector, Mr. Macqueen, remarked: I take the section [i.e., Section 168(2)] to mean therefore that the Revenue Officer must accept the existing rent or rate of rent as fair and equitable; only if it is proved that it is not so can he proceed to fix it with reference to the considerations which are mentioned in the Act as being proper to the fixing of a rent. No desire to produce order out of chaos will justify the Revenue Officer in interfering with existing rents unless it is proved that they are not fair and equitable. 47. He therefore sent back the record for revision on these lines. Meanwhile there had been appeals to the Board which, after notice, came up before Mr. Cotton for hearing. He passed proceedings on 21st October, 1929. While stating that the award had been worked out with great care he remarked that, as regards wet lands, it was obnoxious to criticism by the assumption that before fixing rents for the various descriptions of lands and for individual fields or group of fields it is necessary to ascertain as accurately as the circumstances permit the existing aggregate rent-roll under each tank in terms of cash and approximate the financial results of the settlement thereto. 48. Then he says: A settlement of rents is not identical with a commutation suit or series of commutation suits, and Government have held that in a settlement of rents it is not essential to deal with each individual field separately. The clubbing of fields into groups or blocks under each ayacut followed by the Revenue Officer in the present case has therefore much to commend it provided that he does not lose sight of the fact that until the contrary is proved the existing rent of each field is fair and equitable. Where there are widely varying rates for adjoining fields of the same fertility and in the same ayacut it is obvious that some revision is inevitable but the new rate to be applied uniformly should be fixed without reference to, and independently of, the effect of its adoption upon the total rental of the block. 49. He sent back the award for revision. The Settlement Officer appears to have felt difficulty in carrying out the instructions and finally Mr. Souter, who succeeded Mr. Cotton, took the whole matter up and settled the rates by his order dated 6th June, 1930. As I understand them, Mr. Souter's main lines of procedure were that he deducted from the aggregate rent-roll certain illegal cesses and, instead of taking the rent under the ayacut of each tank as the standard, he classified the tanks themselves, as Government tanks are classified under various Classes, 3, 4 and 5 and imposed similar rates for lands under similar irrigation sources. The objection raised before us to this order of Mr. Souter is that it departs from and contradicts the order passed by Mr. Cotton and that it was passed without notice to the parties. Taking the last objection first, the question arises as to whether any notice is necessary before an appeal under Section 171 is decided by the Board of Revenue. It is most significant that, while Section 169 has a special proviso that no entry in the record under Section 168 should be revised by the Revenue Officer until reasonable notice shall be given to the parties to appear and be heard in the matter, and in the case of the confirming officer, the District Collector, Section 170 has a proviso that no entry shall be amended or omission supplied until reasonable notice is given to the parties concerned to appear and be heard and, while under Section 172 no direction to revise shall be made by the Board of Revenue unless a reasonable opportunity be given to the parties concerned to appear and be heard in the matter, there is no such proviso in Section 171. The omission cannot be otherwise than deliberate. 50. Mr. Varadachari admits that it must have been deliberately omitted. He argues, however, that it is mere justice at least to give notice to the party. In this connection the case reported in Local Government Board v. Arlidge (1915) A.C. 120 is instructive. It is clear from that case that a party is not entitled, where the decision is by a public body, to know which officer of the Board actually decided the appeal. He is not entitled to be heard in person before the deciding body, but Mr. Varadachari argues that, though it was only held in that case that he had no right of personal hearing, yet he had a right to put in his written argument. That precise point was not in question there. The procedure was entirely different from that with which we are concerned. Section 17 of the House and Town Planning Act, 1909, authorises a local authority to make a closing order. This is an ex parte order and against it the party aggrieved has a right to appeal to the Local Government Board as also against a refusal by the local authority to determine or end that ex parte order. The law requires that on receipt of such appeal the Local Government must first hold a public open inquiry. In that particular case when this inquiry was held the appellant appeared before it. Subsequently he claimed that he was entitled to a copy of the report of the officer conducting the inquiry and that he was also entitled to be personally heard by the Government Board before his appeal was dismissed. Both these claims were negatived. In such a case the appeal is by a person who has not yet been heard as the original order was ex parte; and it is rather noticeable that, under this decision, while he has a right to be heard in person before the officer conducting the inquiry, he has not got this right before the Local Government Board which gives the final decision. It would be obviously opposed to justice that a person should be adversely affected by an ex parte order without an opportunity of being heard against it. Under Chapter XI the aggrieved person has the right, when the officer publishes a preliminary record for the estate, of being present in person and raising all his objections. He has a further right to be present and object when the fair rent is settled. The appeal therefore to the Board of Revenue is not one against an ex parte order but against a decision arrived at after full hearing of all persons affected. We have been shown no ruling which states that any public body is bound to send notice in such cases, i.e., in an appeal against a decision passed after the party has had an opportunity of being heard against the order. Kumaraswami v. Muniratna (1932) M.W.N. 524 : I.L.R. 55 Mad. 942 : 63 M.L.J. 282 is quoted by Mr. Venkataramana Rao in this connection. But it is not perhaps decisive in the absence of full particulars (vide column 2, middle of page 525). 51. Even assuming that Mr. Souter's order is contradictory to that passed by Mr. Cotton, I would not hold that, merely because of the absence of notice, the order passed by Mr. Souter was one beyond his jurisdiction because even Mr. Cotton was not bound to give notice to the parties though he did so. 52. Then it is argued that Mr. Cotton's order being a final one on the appeals, it was not open to Mr. Souter to pass subsequently another final order. But Mr. Cotton's order only laid down certain general principles on which the revision was to be made. The Settlement Officer found it difficult to understand how this revision should be carried out and accordingly Mr. Souter took up the matter and did it himself. In my opinion Mr. Cotton's order was not a final one. 53. But can it even be said that Mr. Souter's order did in fact contradict that of Mr. Cotton? With every desire to understand it, Mr. Cotton's order appears to me to lay down two contradictory principles. He held that the whole award was wrong because the standard taken was the aggregate rent under each tank. He recognised that the principle of clubbing adopted by the Revenue Officer was permissible but then said that the Revenue Officer must not lose sight of the fact that, until the contrary is proved, the existing rent of each field is fair and equitable. This last direction appears to me necessarily to involve that the mere fact that adjacent fields of equal fertility pay widely varying rents is not per se any reason for departing from the presumption that the existing rent of each field is fair and equitable. It must be remembered that the Revenue Officer had distinctly reported that the manager could assign no reason for the difference of rates. Under such circumstances, where the difference of rates could not be traced to any particular reason, this principle obviously means that the differences of fertility, etc., should not be any reason for altering the "lawful rate" in existence. But in the very next sentence Mr. Cotton says: Where there are widely varying rates for adjoining fields of the same fertility and in the same ayacut, it is obvious that some revision is inevitable. 54. That appears to me to be in contradiction to the principle already laid down. And I am fortified in this view by the fact that the Settlement Officer found great difficulty in carrying out what he was called upon to do. When Mr. Souter in these circumstances took up the matter himself and disposed of it on his own lines, can it be said that his order was contradictory of an order which does not appear itself to be entirely consistent? Two departures from Mr. Cotton's order are alleged before us: (1) Mr. Souter held that the total rent under the settlement should be more or less equal to the rent lawfully due to the proprietor, while Mr. Cotton held that there was no necessity to ascertain the aggregate rent-roll under each tank and approximate the financial results of the settlement thereto. (2) Mr. Souter disallowed "illegal cesses" about which Mr. Cotton had said nothing. 55. To take the latter point first, "illegal cesses" we are now told were amongst the matters appealed against so that the question had to be decided even if Mr. Cotton had failed to do so. It is quite possible that when Mr. Cotton said that the aggregate rent-roll under each tank was not to be made a standard he meant that as this might include illegal cesses it was a wrong standard. Anyhow I am not clear that Mr. Souter's disallowance of illegal cesses is in contradiction to Mr. Cotton's orders. As regards the first point, Mr. Souter seems to me by classifying the tanks and assessing the lands with reference to the class of tanks they are under to have complied, at least formally, with the principle that the aggregate rents under each ayacut was not to be assumed as correct. 56. No doubt Mr. Souter held that the total rent under settlement should be "more or less equal to the rent lawfully due to the proprietor". As noted above he qualified this by first deducting illegal cesses, but, in any case, in a zamindari of this sort, where the reasons for the existing unequal rates of rent for lands of the same fertility could not be ascertained, the principle insisted on by Mr. Cotton that the lawful rent should be regarded as correct till the contrary was shown, would in practice lead to the total rent fixed under the Settlement being more or less equal to the aggregate of the rents "lawfully payable". The same result would therefore be reached by both methods. When Mr. Souter further found that Mr. Cotton had also laid down the principle that where there were widely varying rates for adjoining fields of the same fertility under the same ayacut some revision was inevitable, I do not see how he can be held to have departed from Mr. Cotton's order by attempting the best solution he could find of a very difficult problem. There is, however, one particular matter, in which I agree with my learned brother that his order is liable to revision under the certiorari rule. This is in the matter of the appeal by certain ryots that these lands were pannai lands and therefore should not have been included in the rent settlement. In regard to this Mr. Cotton in his order, paragraph 2(G), posed the question "whether pannai should be excluded from the Settlement" and his answer is "pannai lands should be excluded from the Settlement"; but he did not decide whether there were pannai lands or not. Mr. Souter did not specifically answer the question but the lands were entered in the list of lands whose rent was settled under Section 168 with the result that, instead of holding as ryots at a fixed permanent rate of Rs. 10 per acre, with no extra charge for a second crop, the ryots were assessed at a rent of Rs. 14 per acre with a liability to pay a further rate for a second crop. In this case we have the rather peculiar position that the Zamindar is now contending that these were ryotwari lands while the tenants are maintaining that they are pannai lands. It is argued that the tenants, not having objected to the Revenue Officer's notice describing their lands as ryotwari lands, are not at liberty to contend that they are pannai lands. It is to be observed, however, that, as in that order the rent was left at Rs. 10 per acre, there was no reason why the ryots should object to that notice. In fact their position would be better as ryotwari tenants with that rent than as tenants of pannai lands. The lease deed put forward by them is of 1895, so that the presumption under Section 185 of the Act is not applicable. However, we have not here to say whether the claim put forward that the lands are pannai lands is substantiated or not. The fact which entitles us to interfere by writ of certiorari in this matter is that the question as to whether the lands were pannai or not was distinctly raised before the Board of Revenue and had to be adjudicated upon. It was no adjudication merely to say conditionally that pannai lands should be exempted. Though the lands were claimed to be pannai yet in the final order, without any specific adjudication on the point, the fair rent was settled as if they were ryoti lands. Consequently the Board of Revenue failed to exercise a jurisdiction in this matter which it was bound to exercise. On this point I agree with my learned brother that that part of Mr. Souter's order which renders the land liable to assessment must be set aside and, for the reasons given by him, this will entail setting aside Mr. Souter's orders about the other lands also, since the rates fixed for other lands are dependent on the inclusion of those lands which may have to be excluded as not falling under Chapter XI. I agree also that the petitioners in CM.P. No. 2074 should get their costs while the other parties will bear their own costs. Subramania Pandia Chokka Talavar vs Siva Subramania Pillai And Ors. on 13 February, 1894 Equivalent citations: (1894) 4 MLJ 152 JUDGMENT 1. This was a suit to recover the Mittas or estates called Peruruni and Karaikuruchi and the Pannai or home-farm lands thereon which had formed part of the Zamindari of Maniachi, situated in the District of Tinnevelly. The Subordinate Judge of Tinnevelly who tried the suit dismissed it with costs. Appellant-plaintiff is the present Zamindar of Maniachi which is admittedly an impartible estate belonging to a joint Hindu family but capable of being enjoyed by but one member of the family at a time, and respondents are alienees who are in possession of the property in dispute. 2. The transactions which have given rise to this litigation are fully set forth by the court of first instance in paragraphs 25 to 57 of its judgment. The Subordinate Judge has also sufficiently stated the substance of the pleadings, the contentions of the several respondents, and the questions arising thereupon for determination, and we do not think it is necessary for us to recapitulate them in this judgment. 3. Of the fourteen issues recorded for decision, the 13th and 14th relate merely to improvements and mesne profits. To the decision on the first three issues, no exception is taken at the hearing before us. The 4th, 6th and 7th issues relate to preliminary grounds of objection urged against the suit whilst the other issues refer to the merits. 4. The first question for determination is that raised by the fourth issue, viz,, whether the suit is barred by the Act of Limitations. The facts from which it arises are shortly these. At the commencement of the year 1866 and for some years before it, one Bhulokapandiya, Chokka Talavar was the Zamindar of Maniachi and the properties now in dispute were then comprised in the Zamindari. He died on the 14th January 1866 leaving him surviving seven widows and five minor sons as shown in the subjoined pedigree. Bhuloka Pandia Chokka Talavar Zamindar of Maniachi, who died in January 1866. His seven wives. | ________________________________________________________________________ | | | | | | | Kattama Rama Udayanna Rama Shanmukha Shanmukha (died Talavachi Talavachi Talavachi Talavachi Vadivu Vadivu childless) (died (died (died | Talavachi Talavachi childless) childless) childless) | | | son, Chokka | son, Subrah- Talavar | mania Pandia No. 8. | Chocka Talavar | (Plaintiff | Appellant) | No. 12. | __________________________________ | | | Subrahmania Vellaya Sendura Pandia Chokka Pandian Pandian Talavar No. 10. No. 11. No. 9. (died unmarried) 5. On the death of Bhulpka Pandia in 1866, the Government at first recognised as his lawful successor his son by the fourth wife, Chokka Talavar, No. 8 in the pedigree. He was, however, junior in years to the eldest son by the fifth wife, Subrahmania Pandia Chokka Talavar No. 9 in the pedigree. But the Government considered that his mother's prior marriage was a legitimate ground of preference. As he (No. 8) was a minor, the Court of Wards assumed management of the Zamindari under Reg. V of 1804. The late Zamindar's fifth wife then instituted 0.S. No. 25 of 1866 on the file of the Civil Court of Tinnevelly disputing the action of the Government and asserting her eldest son's preferable claim by right of primogeniture. In May 1868 the Civil Court decreed in his favour. Meanwhile, the Government recalled their recognition of the junior son by the fourth wife and recognised in his stead the eldest son by the fifth wife, No. 9 in the pedigree, Subrabmania Pandia Chokka Talavar, and the Court of Wards since continued in management on his behalf. 6. Of the three sons by the fifth wife, the second son Vellaya Pandian died unmarried during his minority, and the eldest Subrahmania Pandia Chokka Talavar, the last recognised Zamindar and lawful holder died during his minority in 1873 leaving him surviving one uterine brother named Sendura Pandian No. 11 in the pedigree and two half-brothers, Chokka Talavar No. 8 and the plaintiff-appellant No. 12 in the pedigree. It is an undisputad fact that of the three surviving brothers, the plaintiff is the eldest. It is also admitted that the Zamindari of Maniachi is an impartible estate belonging to a joint Hindu family constituted by its male coparceners and that the last lawful Zamindar was appellant's and Chokka Talavar's half-brother, and the uterine brother of Sendura Pandian No. 11 in the pedigree. 7. Appellant rests his title to the Zamindari in this Court as in the court below, on his position as the eldest of the surviving brothers of the last; Zamindar, while the respondent's case is that the uterine brother Sendura Pandian excludes him from succession. With reference to this contention it was alleged for the appellant that Sendura relinquished his interest in the Zamindari, if any, in favour of the appellant by document C which bears date the 15th August 1885. The plaint which is dated the 9th June 1885 prayed, for a decree (1) establishing appellant's right to the properties in dispute, canceling the decree in Original Suit No. 14 of 1866 and the auction sale in its execution, and (2) awarding him possession of the properties mentioned in the plaint. It stated also that the decree and the execution sale were vitiated by fraud and that the circumstances constituting fraud came to appellant's knowledge only in March 1885. The decree in Original Suit No. 14 of 1866 was passed on the 4th May 1867 and the sales, in execution of it took place on the 11th and 13th August 1870 and were confirmed by the Civil Judge on the 14th September 1870 by Exhibits M and P and LIV. The purchasers were placed in possession on 7th and 29th September 1870. 8. These are the facts which have to be. borne in mind whilst dealing with the question of limitation with reference to the arguments addressed to us at the hearing. Treating this suit as one brought to recover immovable family property unlawfully alienated during appellant's minority, the Subordinate Judge has found that it is barred by limitation. He rests his opinion on the ground that appellant was born on the 5th May 1861 and completed his twenty-first year on the 4th May 1882 and not as alleged by him on 11th June 1882. It is urged on appellant's behalf that this finding is contrary to the weight of evidence. 9. The date of appellant's birth formed the subject of the 6th issue and the evidence cited with reference to it is partly or and partly documentary. It must be observed that in the case of the appellant, no horoscope has been kept so as to throw light on the precise date of his birth. Both parties admit that appellant was in existence from the 12th June 1861, the contest being as to whether he was born on that date or as found by the Subordinate Judge in the 5th May 1861. 10. As regards the oral evidence, it is that of plaintiff's witnesses Nos. 4 and 25 and defendant's witnesses Nos. 11 and 12. The two former state that plaintiff was born in the month of Vaiyasi Andu 1036 corresponding to May--June 1861 and the two latter depose that the plaintiff's birthday star or lunar mansion was "Satayam" or the 24th lunar day or star in the month of Chittirai. Both the witnesses for appellant are related to him, the 4th being a distant relative and the 25th witness being his maternal uncle. The evidence of the maternal uncle is open to the observation that he is unable to remember the month and the year in which his own eldest and other sons were born, though he professes to recollect the month and year in which appellant was born. The evidence of the 4th witness is also open to the remark that the date of the temple festival at Tiruchendur in the District of Tinnevelly in the year 1861 with which he connects appellant's birth shows, (as explained by the Subordinate Judge) when it is computed from the calendar, that appellant was born on the 5th May and not on" the 12th June? 11. On the other hand, respondents' 12th witness does not name the month in which special worship or Archani is performed in the Tiruchendur temple on appellant's Janma Nakshatram day or the day of his birth fixed with reference to the lunar asterism or mansion. According to respondent's 11th witness it is clear that the appellant's Janma 'Nakshatram or the star under which he was born was the "Satayam" or the 24th lunar mansion day in the month of Chittirari which corresponds to the 5th May 1861 according to the calendar. Respondents' witnesses are not connected with them. The Subordinate Judge describes the evidence at length in paragraph 21 of his judgment and comes to the conclusion that appellant was born on the 5th May 1861; and after carefully considering it we see no reason to disturb his finding. In the first place, respondents' 11th witness is a disinterested witness. The fact deposed to by him is in the nature of circumstantial evidence. It is a fact which he was in a position to remember from the Archanai or special service being performed every year on the same lunar day of the same solar month. It is corroborated by the date of the Tiruchendur festival in the year 1861 with which event the 4th witness connects appellant's birth. Respondents' 12th witness corroborates the 11th so far as the performance of a special service in the Tiruchendur temple on the Zamindar's birth day and the name of his Jantna Nakshatram or the star under which he was born, are concerned. 12. On the other hand, the onus of showing that the suit was brought in time is on the appellant. Both his witnesses are related to him and their evidence is open to the observations mentioned above. The appellant's pleader suggests that his 4th witness may have made a mistake, but it is not likely. The allusion to the Tiruchendur festival as the event which enabled him to fix the month and star of appellant's birth appears to be natural. 13. The documentary evidence bearing on the 6th issue consists of two Exhibits H and XV. The former is a Takid sent on the 31st May 1882 by the Sub-Collector of Tinnevelly to the Tahsildar of Ottapidaram Taluk. It states that the Maniachi Zamindar attains his majority on the 12th June and directs the Tahsildar to close the accounts of the estate and be ready to deliver the Zamindari on the 13th June. Exhibit XV is the letter written by the Sub-Collector to the Collector on the name date and is to the following effect:--"It appears the eldest minor of the Maniachi estate has no horoscope and the exact date of his birth is not known. The Tahsildar on examining the previous records and on due enquiry approximately fixes the date on which the minor attains his age as the 12th June 1882. I propose to issue orders to the Tahsildar to make over the estate to the minor on the 13th proximo." The report of the Tahsildar to which reference is made in Exhibit XV is not before us. We cannot say that the Exhibits which name the 12th June 1882 approximately as to the date on which the appellant attained his majority are inconsistent with the finding that the actual date of birth was the 5th May 1861. It is then said that the Zamindari was actually made over to the appellant on the 13th June 1882, but this fact does not carry the case further. No correspondence is produced from which we can infer that the real date of birth was ascertained by the Court of Wards and it was enough for that court that on the 13th June 1882 when they transferred the estate, the appellant had ceased to be a minor. The Subordinate Judge appears to us to have come to a correct finding as to the date of appellant's birth. 14. With reference to the latter part of the 6th issue, it is argued by respondents' pleader that under the Indian Majority Act IX of 1875, Section 3, the appellant should be treated as having attained his Majority on the completion of 21 years only in case he had lawfully been under the jurisdiction of the Court of Wards and that he must otherwise be treated as having attained his majority on the completion of 18 years. We shall presently consider the question whether Sendura Pandian excludes the appellant from succession and whether an uterine brother succeeds to an impartible estate in preference to a half-brother though the latter is senior in years to the former. Assuming, for the purpose of dealing with the question of limitation and for that purpose only, that the appellant was not only the de facto but also the de jure Zamindar, we see no reason to doubt the correctness of the Subordinate Judge's decision that appellant attained his majority on the completion of 21 years on the 4th May 1882. 15. There are three more matters in connection with which the question of limitation has been considered by the Subordinate Judge. Adverting to the prayer in the plaint that the decree in Original Suit No. 14 of 1866 and the sales, in execution of it, of the properties in dispute be cancelled, the Subordinate Judge observes that there is no doubt that as a suit to set aside court sales in execution of a decree to which appellant was a party, it must be governed by the one year's limitation prescribed by Article 12, Schedule II of the Act of Limitations. He adds, however, that as the plaintiff was a minor, a period of two years must, under illustration (6) attached to Section 7 of the Act, be added to the one year. It is argued on appellant's behalf that this is a misapprehension of the scope of the illustration and that the period, of limitation prescribed by Art. 12 is applicable to minors as well as to adults. 16. That article premises a suit to set aside a sale in execution of a decree and prescribes as the period of limitation one year from the date on which the sale is confirmed. The case premised by illustration (b) of Section 7 is one in which the right to sue for a legacy accrues to A during his minority and A attains his majority 11 years after such accrual; he would have under the ordinary (Sic) one year remaining within which to sue, but under this section an extension of two years will be allowed him making in all a period of three years from the date of his attaining majority within which he may bring his suit. The Subordinate Judge considers that by reason of the illustration (6.) a minor who is a party to a suit has three years to set aside a sale therein from the date on which he attains his majority. He relies in support of his opinion on Mahomed Hossein v. Purundur Mahto I.L.R, 11 C, 287 and on Suryanna v. Durgi I. L. R, 7 M, 258 but neither of them is in point. The question whether illustration (b) of Section 7 is an authority for giving a minor the right to sue to set aside a sale falling under Article 12 three years from the date on which he attains his majority though Article 12 prescribes only one year in the case of adults, was not raised or considered in those cases. 17. The illustration no doubt recognizes the principle that when the period of limitation prescribed by the ordinary law exceeds three years but expires within three years from the date on which he attains his majority, the minor will have the whole period of three years from the date of his majority. But it does not warrant the inference that it gives three years in cases which are governed by Art. 12. If the minor were an adult at the date of the sale which he seeks to set aside he would have to sue within one year from the date of the confirmation of the sale; and on attaining his majority, he stands in the position of an adult and there is no reason why he should have three years instead of one year from the date of majority. Section 7 ought to be read together with each Article in the second schedule, and when the period prescribed by the latter extends to three years or more and expires within three years from the date of attainment of majority, the intention is that the late minor should have the full three years. But when the period of limitation prescribed by the schedule, as for instance by Art. 12, is less than three years and the minor has that period from the date of his majority, we see no warrant for holding that the intention was to enlarge the period of limitation prescribed by the schedule to three years. We are unable to adopt the view of the Subordinate Judge that the appellant had more than one year to set aside the court sales if he were a party to Original Suit No. 14 of 1866. 18. In paragraph 147 pf his judgment, the Subordinate Judge observes that as a suit to set aside the decree in suit No. 14 of 1866 toy fraud, the suit is governed by Art. 95 which allows the appellant a period of three years from the date on which the fraud came to his knowledge. As he finds, however, that no fraud has been proved, the question does not arise in this case and we shall consider in connection with the merits whether this finding is correct. 19. The Subordinate Judge also refers to Article 44, though he considers it to apply only to voluntary sales. But, for the appellant, it is contended that, by analogy to that Article, he is entitled to sue to set aside, within three years from the date of his majority, an improper court sale which took place during his minority with the privities of his guardian. We cannot accede to this contention as Art. 12 must be read together with Art. 44 and there can be no true analogy when there is an express provision to the contrary. With Arts 12 and 144 before us, we do not think that Art. 120 which presupposes the absence of a special provision applicable to the case under consideration can apply. The conclusion we come to on the 4th issue, is that the present suit is time-barred as a suit failing under Art. 144 or Art. 12 and that either Art. 120 or 44 or 45 has no application. 20. In dealing with the question of limitation it was assumed that appellant was a party to Original Suit No. 14 of 1866 by his guardian and that as the eldest surviving brother though of the half blood he is lawfully entitled to the Zamindari. We now proceed to consider these questions. 21. The question raised by the 5th issue is, whether appellant is entitled to the Zamindari of Maniachi in preference to Sendura Pandia Talavar who is still alive. The facts upon which it arises for determination are, (1) that the Zamindari is an impartible estate, (2) that it belongs to the coparcenaries family consisting of the appellant and his brothers, (3) that the propositus was Subramania Chokka Talavar, No. 9 in the pedigree who died without male issue, (4) that Sendura Pandian is his uterine brother, whereas appellant is only his half-brother; and (5) that the latter is older than the former and is the eldest of the surviving sons' of Bhuloka Pandia Chokka Talavar. It is admitted that Subramania Chokka Talavar was the eldest son of the previous Zamindar and that he succeeded his father by right of primogeniture, no special custom being alleged by either party as controlling the right of primogeniture in case of disputed succession to the Zamindari. The point for consideration is whether, under the Mitakshara law, nearness of blood is a ground of preference as between brothers of the half and full blood in case of disputed succession to impartible coparcenaries property. 22. The Subordinate Judge decides it in the affirmative, but in that opinion we are unable to concur. Apart from authority we are of opinion that on general principles the question should be answered in the negative. The first of them is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to particle property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession, is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were particle under the general, Hindu Law. The third principle is that in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. In determining who the single heir is according to these principles, we have first to ascertain the class of heirs who would be entitled to succeed to the property if it were particle, regard being had to its nature as coparcenaries or separate property, and we have next to select the single heir by applying the special rule indicated above. 23. Applying the principles mentioned above to the case before us, there can be no doubt that if the property in dispute had been the separate property of the last lawful Zamindar from whom succession has to be traced, the uterine brother would be preferred to the half-brother. In enumerating the classes of heirs to separate property with reference to the Smriti of Yagnavalkya cited in Mitakshara, Chapter II, Section I, Sloka- 2, the Commentator observes in Chapter II, Section 4, Sloka 5, that "among brother such as are of the whole blood take the inheritance in the first instance" under the text already cited, " to the nearest sapinda, the inheritance next belongs, since those of the half blood are remote through the difference of the mothers." Vignanesvara Yogi proceeds then to state in Section 6 that "if there be no uterine brothers, those by different mothers inherit the estate, and adds in Section 8 that in case of competition between brothers and nephews, nephews of the whole blood have no title to the succession in preference to brothers of the half blood," for their right of inheritance is declared to be on failure of brothers. If the Zamindari of Maniachi, from which the property now in litigation was severed by court sales, had been the separate of self-acquired property of Subramania Talavar, Sendura, Pandiya, his uterine brother, would certainly have succeeded to it in preference to the appellant who is his brother by a different mother. The principle which determines the class of kindred entitled to succeed is that, in case of disputed succession to such property, remoteness of blood furnishes a rule of exclusion. This being so, the further question arises whether the same principle applies when the property is the coparcenaries property, though impartible, belonging to a joint Hindu family consisting of the deceased Zamindar and his brothers. Looking again to the Mitakshara law of succession as applied to particle coparcenaries property, the right of survivorship is mentioned as a dominant right which controls the rule of succession applicable to separate property. In Chapter II, Section 1, Sloka 20 of the Mitskshara, the Commentator premises a case of competition between the coparceners and widows of a deceased person, refers to the text of Narada " let them allow a maintenance to his women for life," and concludes that the widows are entitled only to maintenance, the coparceners being entitled to the property. It follows that in case of coparcenaries property, the doctrine of survivorship furnishes an additional rule whereby the class of heirs has to be found. It is also a controlling or dominant right for the reason that, according to Hindu theory, coparcenaries property belongs to the coparcenaries family, that though coparceners are tenants in common, they have no specific property, but only an interest which may ripen into specific property on partition, and that if the existing coparceners die without male issue, they are to be treated as if they had never been born and as if the partible property actually belonged to the body of coparceners who are alive at the time of partition. When therefore partible property belongs to a coparcenary family and when a coparcener dies without male issue, leaving one uterine brother and one half-brother surviving him, the half-brother is entitled to share the property equally with the uterine brother at the time of partition, the deceased brother being considered as if he never had been born, and the property being treated as always vested in the family as a unit, and as never absolutely vested for purposes of inheritance in any one coparcener in preference to another, how much soever the family may change as to the number of coparceners from time to time during coparcenary. To say, therefore, that nearness of blood is a ground of preference in such cases would be tantamount to ignoring the preexisting coparcenary interest of half-brothers. Nearness of blood being thus no ground of preference under the Mitakshara law in case of disputed succession to coparcenary property when it is partible, it is likewise no ground of preference, when such property is impartible. It is conceded that the Zamindari belongs to the coparcenary family consisting of all the brothers of the propositus and the nearest class of kindred in which the single heir ought to be found is that of brothers, whether of the whole or half blood, and applying the rule of primogeniture as a subsidiary rule of selection, since there is no specific custom, the brother' that is entitled to the Zamindari is the eldest in years, viz., the plaintiff or appellant. 24. This view is in accordance with the course of decisions to which our attention has been called at the hearing. 25. The first is the Sivaganga case reported in 9 M. I. A, 539, Katama Natchiar v. The Rajah of Shivagunga. The point decided in that case was that the Zamindari of Sivaganga was the self-acquired property, of Gouri Vallabha Tevar, the prior lawful Zamindar, that the competition being between his daughter and brother's son, there was no right of survivorship as in the case of coparcenary property, and that according to the ordinary rule of succession, the class of kindred among whom the single heir was to be found was represented by the daughter and not by coparceners. The question now in dispute did not arise in that case but there are observations made by the Privy Council which indicate the principles that should guide our decision in this case. Their Lordships say there are 'two principles on which the rule of succession according to the Hindu law appears to depend. The first is that which determines the right to offer the funeral oblation and the degree in which the persons making the offering are supposed to minister to the spiritual benefit of the deceased; the second is the right of survivorship. It is generally intelligible that upon the principle of survivorship the right of the coparceners in an undivided estate should prevail. Their Lordships say further that in coparcenary property according to the principles of Hindu law, there is coparcenership between the different members of a united family and survivorship following upon it; for there is community of interest and unity of possession between all the members of the family and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession. But the law of partition shows that as to the separately acquired property of one member, the other members of that family have neither unity of interest nor unity of possession and the foundation, therefore, of a right to take such property by survivorship fails. It is said that these observations are in the nature of obiter dicta, but if so, they are the dicta of the highest judicial tribunal for India followed in several later cases. Moreover the two main principles of succession mentioned above are those embodied in the text of Manu, "that the inheritance belongs to the nearest sapinda" and in the text of Narada to the effect that in an undivided family the brother takes the coparcenary property in preference to the widow. 26. The second case is what is known as the Tipperah case reported at 12 M. I. A, 523, Neelkisto Deb Burmons v. Beerchunder Thakoor. That was a suit in the nature of ejectment brought by a brother of the half-blood against the uterine brother on the ground that as he was the eldest of the class of heirs from whom a Jobraj should be selected according to family custom, the appointment by the deceased Zamindar of his younger brother, the then defendant, as Jobraj, was invalid. The Privy Council held that the appointment was valid by family custom or Kulachar which imposed no restriction on the power of the reigning Raja to appoint a Jobraj from among his kindred. On this point, the Lords of the Judicial Committee remarked that "where there, is evidence of a power of selection the actual observance of seniority even in a considerable series of successions cannot of itself defeat a custom which establishes a right of free choice; and had the instances been uniform and without exception, that alone would' have been sufficient to support the appellant's case. Such uniformity of practice was however not proved, for, several instances appear of infants appointed to the office of Jobraj, whilst relatives within the custom and older in years were living. It is this finding of fact that was the ratio decidendi but the decision is an authority for the proposition that in determining the right of succession to an impartible estate, we should first ascertain the class of kindred from whom a single heir is to be selected, next see whether family custom or Kulachar discloses a special rule of selection, and that in default of such custom, seniority of age constitutes a title by descent to the impartible estate by analogy to general Hindu law. The Judicial Committee say further that by general Hindu law, the uterine brother would be the heir in preference to the half-brother, were it a disputed succession to divided property. 27. This limitation is also in accordance with the text of the Mitakshara in Chapter II, Section IV, Slokas 5 and 6 and is an authority for the proposition that in case of disputed succession to impartible property which was acquired by or belonged exclusively to the deceased Zamindar, nearness of blood is a factor to be considered in determining the class of kindred from whom the single heir has to be selected. Respondents' pleader lays considerable stress en the passage in the judgment of the Privy Council which deals with, the contention on behalf of the appellant, in the Tipperah case, to the effect that the preference of the whole to the half-blood does not extend to a Raj and that, when the estate is ancestral and undivided, brothers of the whole and half-blood are on the same footing. Their Lordships observe as follows.:--"When a Raj is enjoyed and inherited by one sole member of a family, it would be to introduce into the law, by judicial construction, a fiction, involving also a contradiction to call this seperate ownership, though coming by inheritance, at once sole and joint ownership and so to constitute a joint ownership without the common incidents of coparcenership. The truth is, the title to the throne and to the royal lands is, in this case, one and the same title. Survivorship cannot obtain in such a possession from its very nature and there can be no community of interest; for, claims to an estate is lands and to rights in others over it, such as to maintenance, are distinct and inconsistent claims. As there can be no survivorship, title by survivorship, when it varies from the ordinary title by heirship, cannot, in the absence of custom, furnish the rule to ascertain the heir to a property which is solely owned and enjoyed and which passes by inheritance to a sole heir." It is further argued on behalf of the respondents that the doctrine of survivorship as a dominant right has no operation as well in the case of impartible coparcenary as in the case of impartible separate property and that we are not at liberty to introduce a distinction so as to vary the ordinary rule of succession which it is contended applies alike to both. We are unable to accede to this suggestion for several reasons. In the first place, later decisions of the Privy Council recognized survivorship as a material factor when the impartible estate is coparcenary property. In the next place, the Tipperah estate is situated in a part of India governed by the Dayabhaga (School of Hindu law which explains away the Smriti of Narada as inapplicable to married women and denies a place to the doctrine of survivorsoip in its scheme of succession. It may be as suggested by Mr. Bhashyam Aiyangar on respondents' behalf, that when the Tipperah case was decided by the Privy Council, there was an impression at Calcutta that, even under the Dayabhaga law, there was survivorship as an exception to the general scheme of inheritance in the case contemplated by Jitnutavahana in Verse 34, Section 5, Chapter 11 of the Dayabhaga. But such a notion was held to be erroneous by the Full Bench of the High Court at Calcutta in Rajkishore Lahoory v. Gobind Chunder Lahoory I. L. R, 1 C, 27, and see Sheo Soondary v. Pinthee Singh L. R, 4 1 A., 147 wherein it as decided that by the Hindu law current in Bengal, a brother of the whole blood succeeds in the case of an undivided immoveable estate, in preference to a brother of the half-blood. The ratio decidendi is that the doctrine of survivorship has no operation under the Dayabhaga law either as part of the general scheme of inheritance or as an exception to it. 28. Again the recognized foundation of the right of survivorship is the Smriti of Narada cited in Mit., Ch. II, Section 1, Verse 7. But , Jimutavahana notices this Smriti in Ch. XI, Section 1, Verse 48 of the Dayabhaga, and concludes after a consideration of the other Smritis, especially the Smriti of Vrihaspati, that Narada contemplated the case of wives of an inferior rank who do not possess the status of a Patni or the lawful wife of approved rank. On the construction suggested by him in Verse 54 there is no foundation in the Smriti law on Which the doctrine of survivorship can rest. As the Mitakshara, however, differs from the Dayabhaga, the decision in the Tipperah case, although it is in perfect accordance with the Dayabhaga law, has no application in the Mitakshara country. 29. It is further urged by the learned pleader for respondents that assuming that the Tipperah Hills and estate are governed by the Dayabhaga law, the reason assigned by the Privy Council for their decision suggests that the character of impartible property as one capable of sole enjoyment by the incumbent for the time being is so much in the nature of separate property, that it is inconsistent with the theory of coparcenary of which unity of ownership and unity of possession quoad the property in litigation, are essential incidents. 30. This contention is sound only in the Dayabhaga country, for, as explained by this Court in Naraganti Achamma Garu v. Venkatachalapati Nayanivaru I. L. R, 4M, 250 at p. 266 the modifications of coparcenary which flow from impartibility consists in this-- " Where from the nature of the property, possession is left with one co-parcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his coparceners in virtue of their co-ownership the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate. The rights of possession and maintenance are to this extent distinct and inconsistent that they cannot co-exist and be enjoyed by the same persons, that the one is a right to the immediate perceptions of the fruits of the property, the other a right to an indirect benefit, but both rights have a common origin, unity of ownership. * * * Separate possession but not separate ownership, is the characteristic of property, which although impartible is ex hypothesi joint. Co-ownership, which is the cause of survivorship, was held not to exist in the case of the Tipperah Raj. We should have hesitated to express an Opinion at variance with that ruling f "we could find no support for our views in a ruling- which is equally imperative upon us, here from which, in the Tipperah case their Lordships expressed (Sic) to dissent. In Katama Natchiar v. The Rajah of Shivagatinct 9 M. I. A, 593 their Lordships declared that in the abseitle by proof of a special custom of descent, the succession to a Zahirship, impartible and capable of enjoyment by one member only tain the family at a time, is governed by the general Hindu law (Sic) which in that part of India with such qualifications only as flow (Sic) on impartible character of the subject. The impartiality of (Sic) a ject does not necessitate the denial of the right of survivorship, (Sic) there are not wanting in the admitted rules which govern and enjoyment of such property and the succession to it indicia (Sic) co-ownership and consequent survivorship." This case is (Sic) authority in this Presidency for the proposition that the very (Sic) torn by which coparcenary property is rendered impartible (Sic) survivorship, as a necessary incident of impartibility and that it (Sic) not correct to say that there is no coparcenership in regard (Sic) such property, the difference being only in the form in which (Sic) exists in respect of partible and impartible property. 31. In this connection our attention is drawn to the decision (Sic) the Privy Council in Rani Sartaj Kuari v. Rani Deoraj Kuari L. R, 15 I. A, 51. This case modifies the opinion expressed in the last preceding case to this extent and no further, " When the estate is governed by the Mitakshara law and it is impartible by the usage and custom of family and descends according to the law of prrmogeniture on the male heirs of the original grantee, the estate is not inalienable except on proof of special custom." The case is therefore an authority for the proposition that inalienability is not one of the modifications which flow necessarily from the impartiality of the subject. As regards survivorship as a cause of succession, their lordships expressly save it and say, "By the custom or usage, the eldest son succeeds to the whole estate on the death of the father as he would if the estate were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is joint ownership which is a restraint on alienation. It is not so difficult where the holder of the estate has no son and it is necessary to decide who is to succeed.-" Referring to the Sivaganga case, their lordships add "the saying in the Sivaganga case that the Zamindari though impartible was part of the family property must be understood with reference to the question which was then before their lordships." That question was one of succession and not of alienation inter vivos. 32. Another case referred to is what is called the Totapalli case, 13 M. I. A, 333, Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora. In that case an impartible estate belonging to a joint Hindu family was usurped by one of the members of the family. The Zamindar by the aid of another member of the family ousted him and afterwards entered into an agreement with him to pay the revenue. There was no division in the family. It was argued in that case by appellant's counsel that the estate being impartible must from its very nature be taken to be separate estate and consequently that according to the decision in the Sivaganga case, the succession was determinable by the law which regulates the successsion to a separate estate, whether the family be divided or undivided. With reference to the first contention, their lordships' answer was, " It is clear that the mere impartibility of the estate is not sufficient to make the succession follow the course of succession to separate estate^ Their lordships apprehend that if they were to hold that it did so, they "would affect the titles to many estates held and enjoyed as impartible in different parts j, of India. Has it then been shown that, though the family was undivided, the estate was in fact the separate property of the appellant's husband ?" After answering the above question in the negative their lordships answer red the second question in these terms.--" In the Sivaganga case, the Zamindari had escheated to Government which was free to deal with at as it chose. By a new Sannad the Government granted it to Gouri Valiabha, conferring a legal title which none could dispute. But what was done in this case?" After referring to the facts of that case their lordships state, "this account shows no legal forfeiture, no fresh grant by any person competent to grant a legal title. It only shows that on a dispute between Mallappa Dhora and his superior, another member of the family came in and, with the strong hand and in concert with the superior, succeeded in ousting Mallappa Dhora and in assuming the position and right of the Zamindar." This case is an authority for the position that forcible dispossession produces no change in the nature and tenure of the impartible property. 33. Another case is that of Maharani Hiranath Koer v. Babooi Ram Narayan Sing 9 B. L. R, 274, at page 324 in which the Tipperah case was dissented from. 34. Two other cases were also referred to at the hearing,--Ranganayakamma v. Ramaya, Mayne 599 and the Padamathur case I. L. R, 1 M, 312. They follow the Sivaganga case. 35. The latest case is that of Raja Jogendra Bhupati Harri Chundun Mohapatra v. Nityanund Mansingh L. R, 17 1 A, 128. In that case the contest was as to the right of succession to an impartible Raj and a Zamindari, the rival claimants being the last male holder, Nandikishore's three widows and daughter on the one side and his illegitimate brother on the other. The joint family belonged to the Sudra caste. Their Lordships of the Privy Council held that the illegitimate brother was entitled under the Mitakshara law to succeed by survivorship and observed as follows:--" According to the decision in the Sivaganga case which, as their Lordships understand is not now disputed, the fact of the Raj being impartible does not affect the rule of succession. In considering who is to succeed on the death of the Raja, the rules which govern the succession to a partible estate are to be looked at and therefore the question in this case is, what would be the right of succession, supposing instead of being an impartible estate it were a partible one." After discussing the point and concluding that the right of survivorship existed as between the deceased Zanindar and his illegitimate brother, their Lordships held that the latter was entitled to succeed to the Raj by virtue of survivorship. This case is the latest authority for the position that when the impartible estate belongs to a co-parcenary family, the right of survivorship determines the heir entitled to succeed. 36. The next question is whether the suit is barred by Sections 13, 244, and 312 of the Code of Civil Procedure. It is conceded that if the 8th issue is determined against the appellant, this question must likewise be decided against him. 37. The 8th issue is whether the plaintiff and his predecessor in title were properly represented in Original Suit No, 14 of 1866. The Subordinate Judge states the facts of the case so far as they bear on this question in paragraphs 86 to 57 of his judgment and comes to the conclusion that the appellant and the Zamindar whom he succeeded, were represented for the reasons mentioned in paragraphs 58 to 103. To this finding several, objections are taken on behalf of the appellant. 38. The first objection is that though the appellant and his predecessor in title were made defendants in Original Suit No. 14 of 1866, yet they were then minors and they were not described either as defendants by their mothers and guardians, nor were their mothers, who were also defendants, described as the guardians of their minor sons. It appears from the decree in that suit (Exhibit XXII) that the first eleven defendants consisted of the six widows and the five minor sons of the former Zamindar, Bhuloka Pandia, including the plaintiff and his predecessors in title, the mother's name being entered first as that of a defendant and the minor's name being entered next as that of her minor son. It is not stated in terms that the mother of each minor was appointed or made a party as his guardian ad, litem but it is clear that, in each case, the mother was her minor's son's natural guardian and that the object in including both as defendants was presumably to make both parties to the suit, the mother as Bhuloka, Pandia's widow, and the minor son by his mother and natural guardian. It was Act VIII of 1859 that was in force when the suit was brought and it contained no provisions as to appointment by the court of guardians ad litem for minor defendants. According to the then practice of the Court, it was sufficient if the mother was made a party as guardian, and permitted to act as such on his behalf. It is also in, evidence (Exhibits XXIX to XXXII) that the, mother of Subhramania Pandia Chokka Talavar, plaintiff's predecessor in, title, applied by Exhibit XXXI for a postponement of the sale and preferred an appeal to the High Court from the order of the Civil Judge refusing her application. The conclusion, we come to is that in the suit of 1866, as originally framed, appellant and his predecessor's mothers were included to act as their guardians, that the court allowed them to act as such, that one of them endeavoured in execution proceedings to obtain a postponement of the sale and that, though the description is defective, the defect is merely one of form and the minors were in no way prejudiced thereby. 39. Even assuming that the description is insufficient, we must still hold that the minors were adequately represented and their interest carefully protected by the Collector of the District, as the agent of the Court of Wards and as their guardian ad litem Original, Suit No. 14 of 1866 was instituted subsequent to the death of Bhuloka Pandia Chokka Talavar but prior to the recognition of his son, Chokka Talavar, by the Government as his successor and to the assumption of management of the Zamindari by the Court of Wards. After the court entered on the management of the estate, the Civil Judge included the Collector of the District as the 12th defendant and Exhibit XXI shows that he was made a party as the ex-officio guardian of the minor heirs. It is clear, therefore, that the minors were sufficiently represented by the Collector as their guardian ad litern if not also by their mothers previously. But it is urged on behalf of the appellant that the Collector as agent of the Court of Wards was the lawful guardian only of the then recognised Zamindar on whose behalf the Court of Wards held the Zamindari but not of his brothers including the plaintiff and his predecessors in title, the then fifth and ninth defendants. We do not, however, attach weight to this contention as it is open to the judge to appoint any competent person as guardian ad litem provided that there is no antagonism between his interest and that of the minors in the subject-matter of the suit. Exhibit F 4 shows that the Collector accepted the appointment and acted as guardian of all the minor sons. Representation by him of all minor sons as their guardian under the order of the court is sufficient, even if it were held that the Collector could only treat under Reg. V of 1804 the particular minor on whose behalf the Court of Wards then managed the Zamindari as their proper Ward. 40. The 2nd objection is that the mother of the minors allowed the trial to proceed ex parte and that summonses were not served upon them. As regards non-service of summonses the allegation was attempted to be supported by oral evidence which the Subordinate Judge has discredited. As to the weight due [to the oral evidence on this point, we concur in his opinion. It is true that Exhibit XXI, copy of the judgment in Original Suit No. 14 of 1866, shows that the Collector alone defended the suit, but the circumstances of the case suggest the inference that the minors' mothers left the defence to be conducted by that officer acting under the direction of the Court of Wards as he was more competent than themselves adequately to protect the minors' interests. We may here observe that the interests of the then de facto minor Zamindar who was the ward of the Court of Wards under Reg. V of 1804, were identical with those of his brothers so far as they related to the subject matter of that suit. 41. The third objection is that the admission by the Collector of the claim was an act not compatible with his position as guardian ad litem and prejudicial to the minors. Exhibit XXI proves that the Collector acknowledged the correctness of the plaint in Original Suit No. 14 of 1866 but requested that the debt sued for and other debts might be permitted to be paid rateably from the income of the estate as it was realised. If the claim was true and valid (it will appear later on from this judgment that such was really the case), it is preposterous to say. that the guardian should not have acknowledged the claim but put the plaintiff to the proof of it. Such conduct on his part would add to the costs of the suit which would be a needless burden on the estate. We are of opinion that the Collector's action was bona fide and abundantly warranted by the actual facts of the case. 42. It is here argued that of the six instalments for which a decree was asked for in the plaint, only three were overdue at date of suit, that the 4th, 5th, and 6th instalments had not then accrued due, and that the Collector ought to have resisted the claim for a declaratory decree in respect of the last mentioned instalments. It is true that the plaint prayed for an order of the court directing defendants to pay into court the 4th, 5th and 6th instalments as agreed on in the Razinamas on which the suit was based. It is also true that the Civil Court decided that there must be a decree for the then plaintiff for the amount sued for and for an order that the 4th, 5th and 6th instalments be paid as they fell due. Assuming that no such order should have been made the then plaintiff might have obtained separate decrees for these instalments with costs prior to the date of the court sale. The omission, therefore, of the Collector to take the technical objection now argued saved the minor costs of other suits which the creditor was at liberty to institute as each installment fell due. Considering that he put in the written, statement in communication with the Court of Wards and with its sanction, and seeing also that the Collector then asked the Civil Court for indulgence as to payment of the decree amount from the income of the Zamindari, his action was perfectly bonafide. It was not then unusual for the Civil courts in order to avoid multiplicity of suits (though the practice is now considered loose) to include a direction in the decree passed on instalment bonds to pay future instalments due on those bonds as they fell due. 43. Another objection taken to the finding on the 8th issue is that the decree was merely declaratory in so far as it related to the 4th, 5th and 6th instalments and that the decree was nevertheless executed against the minor's estate. 44. It must be observed, however, that the decree was not declaratory but contained an order for payment as those instalments fell due and in fact the sale now impugned by the appellant took place long after they had become overdue. In our opinion this objection is entitled to no weight. 45. Another objection is that the Collector ought to have objected to the execution of the decree on the ground mentioned in the last paragraph when he represented the plaintiff's predecessor in title in execution proceedings. In fact the Collector did not then take the objection; but if it had been taken, it must have been disallowed for the simple reason that on its true construction, the decree was not declaratory after the future instalments became due any more than a decree for payment of future maintenance at a fixed rate would be and that in execution courts do not go behind the decree sought to be executed, but take it as they find it unless it is impugned for fraud or want of jurisdiction patent on the face of the record. 46. It is also an admitted fact that neither the plaintiff's predecessor in title nor any one else on his behalf objected to the execution of the decree at any time before his death and we do not think that the plaintiff is now at liberty to rip open the decree and to undo proceedings held in its execution and completed during his predecessor's lifetime except on the ground of fraud or collusion. 47. The next objection is that the Collector should have obtained an adjournment of the sale and not allowed the property in dispute to be sold, The Subordinate Judge refers to the several applications made for adjournments of the sale, to the several adjournments actually granted, to the order of the Civil Judge refusing the last application and to the several attempts made to prevent the sale and to its being at last found unavoidable as shown by Collector Mr. Longly's letter. We agree in the opinion that the sale was not due to any laches on the Collector's part as guardian of the plaintiff's predecessor in title, but to its being found otherwise impracticable to clear off the heavy debt left by Bhuloka Pandia Chokka Talavar. 48. The next objection is that there was no attachment prior to the sale. This is not well founded in fact and it is inconsistent with the appellant's admission in the plaint. There are also several exhibits which prove that an attachment preceded the sale. On this point we agree with the Subordinate Judge that the objection has no foundation in fact. 49. Passing on the ninth issue, we observe that there is not a particle of evidence in support of the alleged fraud. The learned pleader for the appellant states that he relies on the objections taken by him to the decision of the Subordinate Judge on the 8th issue as constituting together a case of fraud. We are of opinion that they do not amount to fraud. 50. The last question which remains to be considered in this appeal is that, raised by the 10th issue. The plaintiff's case was that the decree debt was vicious and immoral and that although it had originally been contracted by his father yet it was not one binding upon him. The contention for the defendants was that the debt was incurred for purposes binding on the former Zamindar, Bhuloka Pandiar's family, and therefore on the plaintiff. The Subordinate Judge has stated the evidence on each side and after carefully considering it at length has come to the finding that, the debt was neither vicious nor immoral as alleged by the appellant, but was a debt contracted by a Hindu father for purposes binding on his family. In this opinion we entirely concur. The evidence for defendants clearly traces the nucleus of the decree debt to debts contracted by appellant's father in 1845 and 1849 whilst the plaintiff was born only in 1861. Original Suit No. 1 of 1845 was brought by an illegitimate son of appellant's grand-father and to that suit the grand-father and Bhuloka Pandia', appellant's father, were made parties. The object of that suit was to recover possession of a pannai land or home farm on the ground that it had been sold to the then plaintiff by appellant's grandfather. Appellant's father resisted the claim, but the suit ended in a compromise, Exhibit V, whereby it was agreed that appellant's grand-father should pay the then plaintiff Rs. 7000, that the sale in favor of the latter should be cancelled, and that appellant's father should succeed to the pannai land given up by the then plaintiff. After the compromise appellant's grand-father died and appellant's father succeeded to the Zamindari and the pannai land in November 1845. 51. In order to pay the sum of Rs. 7000 due under the Razinatna, to pay peishcush, and the than Zamindar's installation expenses and palace expenses, appellant's father borrowed Rs. 22,000 from one Vellayan Chetti. That this debt was contracted for the above mentioned purposes is, as observed by the Subordinate Judge, proved by defendant's witnesses Nos. 1, 3, 4, 7 and 8, by plaintiff's witnesses Nos. 4 and 22 and by the compromise V. 52. Vellayan Chetti instituted Original Suit No. 1 of 1849 against appellant's father and another and the suit terminated also in a compromise, whereby appellant's father undertook to pay the debt in certain instalments (Exhibits VI and XVIII). 53. In order to pay Vellayan Chetti, appellant's father borrowed from one Venkatachellam Chetti, who subsequently brought Original Suit No. 3 of 1854 which suit terminated in a compromise which secured the debt on the Zamindari and moveable property of appellant's father. In execution of the decree several Razinamas were filed, the last of which was for Rs. 36,000. Venkatachellam assigned his right under the Razinama to Chidambaram Chetti, the plaintiff in Original Suit No. 14 of 1866 in execution of the decree in which the court sales now in dispute took place. 54. Thus the nucleus of the decree debt is traced by a series of public documents to the money borrowed from Vellayan Chetti prior to Original Suit No. 1 of 1849 of which Rs. 7,000 was the amount undertaken to be paid to secure to appellant's father the succession to certain pannai land yielding an annual income of Rs. 10,000 and Rs. 15,000 were borrowed for payment of (1) peishcush, (2) installation expenses, and (3) palace expenses. It is argued by the appellant's pleader that the Razinama entered into by appellant's father with Venkatachella Chetti does not operate to create a charge but only evidences a money debt. We should be inclined to hold that it did create a charge, for the language of the instrument suggests an intention to secure the debt on specific property. The insertion of general words moveable property in addition to the Zamindari cannot defeat that intention which is the key to the right construction. However, it is not necessary to determine this question for the purposes of the present appeal as we concur in the opinion of the Subordinate Judge that before the property in dispute was sold, it had been attached in execution of the decree. On the other hand the appellant's contention that the decree debt was immoral rests on mense oral evidence. The Subordinate Judge sets out the evidence and considers it not trustworthy and the reasons assigned by him support his conclusion. On reading the evidence we do not see our way to coming to a different finding. Thus on the one side there is unimpeachable documentary evidence whilst on the other side there is only questionable oral evidence in regard to transactions which took place more than 40 years ago, the evidence being produced at a late stage of the final hearing and several of the witnesses being in a position to be influenced by a person in the appellant's position. We have therefore no hesitation in adopting the finding of the Subordinate Judge on the 10th issue. Apart from the weight due to the evidence, there are also several reasons why the appellant should not now be permitted to question the virtue of the debt. (1). It was held by the Privy Counsel in the case refer red to in paragraph 30 and reported in L. R, 15 I.A. 51 the a Hindu son has no power unless he has it by special custom to question the alienation of an impartible estate by his father and in the present case there is no proof of such custom. (II). There is also the fact that the debt sued for in Original Suit No. 14 of 1866 had been contracted more than 10 years previous to the birth of the appellant. (III) Again the original debt merged into a decree debt during the life time of appellant's predecessor in title and in a suit to which both appellant and his predecessor in title were substantially parties and there is no proof of fraud nor any other material fact upon which appellant can repudiate the decree is Original Suit No. 14 of 1866 or the court sales in its execution. 55. We shall here briefly notice another question which respondents argued at the hearing of this appeal with reference to the relinquishment in favour of the appellant of any interest which they possessed in the Zamindari. Exhibit 0 evidences such relinquishment and it is admitted by both the brothers of the full blood, Sendura Pandia Talavar and Chokka Talavar. Also in their evidence as the 3rd witness for the plaintiff and as the court first witness, they acknowledge the appellant's right to the Zamindari. The Subordinate Judge held that on the true construction of the document, their rights of survivorship to the Zamindari were not the interest relinquished but we are unable to support this construction, having regard to the language of paragraph 6 of document C. It is in these terms in further, as we have given up in consideration for this, all our right, interest, and title, &c., in the movable and immovable properties such as the Zamindari &c, capable of improvement by you as far as our share of maintenance is concerned, and as what we have received is sufficient for our share of maintenance suitable to our dignity as per Zamindari custom and our shares, you and we are not undivided, but divided Guathis (Bandhus) and we shall live in separate families. The words " such as the Zamindari" and " we are divided" disclose an intention to regard the Zamindari as appellant's exclusive property from the date of the document. 56. The respondent's contention is that appellant's claim as based on Exhibit C would be time-barred and that the relinquishment is not available to appellant as an additional ground in support of his claim. It is argued that though Sendura Pandian, the next junior brother of the appellant and the eldest of the surviving brothers of the whole blood might not be time-barred by reason of his having attained his majority within three years before he executed C, yet the privilege conferred upon minors by Section 7of the Limitation Act is personal to them and does not extend to their adult transferees and that the transfer of their right after a period of 12 years from the date on which the sale was conferred and before the expiry of three years a period which is allowed to them as a personal privilege, is not actionable if the transferee had attained his majority more than three years before. In support of this contention reliance is placed on the decisions reported at I. L. R, 9 C, 663, Rudra Kant Surma Sircar v. Nabo Kishore 'Surma Biswas and 15 B. L. E, 357, Mahomed Arsad Chowdhry v. Yakoob Ally. Those decisions involve, however, the apparent anomaly that a minor cannot transfer his title to property though at the date of transfer it is a subsisting interest so far as he is concerned. In the view which we take of the question whether a brother of the whole blood is entitled to succeed to an impartible Zamindari in preference to his elder brother of half blood, it is not necessary for us to determine this question for the purposes of this appeal. Thus the appellant's claim is barred first by limitation, and next by Sections 13, 244, and 312 of the Code of Civil Procedure, and lastly it also fails on the merits. 57. As this is a case which maybe taken to the Privy Council and as the Original Suit was instituted in 1885 and the appeal preferred in 1891, we have deemed it fit to consider at length all the questions argued before us on appeal in order that no occasion may arise for further investigation. The result is that the appeal cannot be supported and must be dismissed with costs. Madras High Court D. Shanmugha Raja, Proprietor Of ... vs A.R.M. Suppiah Servai And Ors. on 9 December, 1946 Equivalent citations: (1947) 1 MLJ 113 Author: Rajamannar JUDGMENT Rajamannar, J. 1. The plaintiff who is the appellant is the proprietor of the Sivaganga Estate represented by his manager. He sued for a declaration that the property, described in the schedule to the plaint, situated in Oorawayal village belonged to him and was in his enjoyment, for a permanent injunction restraining the defendants from trespassing upon its limits and cutting off the trees therein and for damages and other reliefs. He alleged that the village was situate in his estate and that the tank and forest of the village belonged to the estate. In paragraph 6 of his plaint, he alleged that the property described in the plaint schedule had been declared by the Government to be a " Reserved Forest" and that the Zamindar for Sivaganga had been appointed Forest Officer in respect of the said forest. The defendants denied the plaintiff's title and also took objection to the maintainability of the suit. This latter plea was contained in paragraph 11 of their written statement which runs as follows: If there is any truth in the allegation that the suit property is reserved forest, the suit presented by Raja Avergal is not sustainable under law. Only proceedings under the Forest Act ought to have been taken and as such the present suit cannot be entertained and it is liable to be dismissed on that ground alone. The learned District Munsiff of Devakottai who tried the suit overruled the objection raised as regards the maintainability of the suit, found on the other questions in favour of the plaintiff and granted him a decree. 2. On appeal by the defendants, the learned Subordinate Judge of Devakottai without going into the merits of the case, held that the plaintiff was not entitled to claim a declaration that the property belonged to him and also found that the suit brought by him as proprietor of the Sivaganga estate was not maintainable. He accordingly dismissed the suit and the plaintiff has therefore filed the above second appeal. 3. The learned Government Pleader who appeared for the appellant contended that there is nothing in the provisions of the Forest Act or in the rules framed thereunder which takes away the proprietary right of the zamindar to forests to which the provisions of the Forest Act have been made applicable by notifications thereunder. I entirely agree with him. 4. The learned advocate for the respondents tried to maintain the position that after the issue of a notification under the Madras Forest Act, the Zamindar as zamindar ceased to have the right to the possession and management of the suit forest and that he was not entitled to maintain a suit as a zamindar and as owner. 5. My attention has been drawn to Notification No. 452 dated 22nd June, 1937, under which the Provincial Government extended the provisions of Section 26 of the Forest Act to the forests and waste lands in the Estate of Sivaganga. This was done at the desire of the Zamindar. The power to extend the provisions of the Forest Act to lands which do not belong to Government is contained in Section 32 of the Act. Under that section, the owner of any land may, with a view to the formation or conservation of forests thereon, represent in writing to the Collector his desire, inter alia, that all or any of the provisions of this Act or rules made thereunder be applied to such land and the Government may in any such case, by notification, apply to such land such provisions of this Act as it thinks suitable to the circumstances thereof and as may be desired by the applicant. It is clear from the notification No. 452 that what the Zamindar desired the Government to do was to extend the provisions of Section 26 of the Act to the forests and waste lands in his estate. Section 26 confers on the Provincial Government the power to regulate the use of the pasturage or of the natural produce of land and to make rules with respect to such land regulating or prohibiting the clearing or breaking up of land for cultivation and otherwise regulating the use of such land consistent with the objects of the Act. The Provincial Government may also by rules prescribe penalties for infringement of the rules. After extending the provisions of Section 26 to the forests and waste lands in the Sivaganga Estate by notification No. 452 the Government issued another notification No. 453, under which they made rules to regulate the management of the forests and waste lands in the Sivaganga Estate. The first of the rules is as follows: These rules shall be subject to all rights legally vested in any individual or community on the date of their publication. Under Rule 2, forests and waste lands in the Sivaganga Estate and at the disposal of the Zamindar thereof shall, for the purpose of these rules, be classified into reserved lands and unreserved lands. There are rules making due provision for the safeguarding of the forest produce and for the preservation of the forests, with which we are not concerned. It will suffice if we refer to Rule 3, under which it shall be unlawful for any person to fell, remove, girdle, mark, lop, etc., or otherwise damage, any tree, or remove any forest produce unless he is authorised to do so by the Collector or by some one duly authorised by him to grant such permission. The Collector is given several powers under these rules in the management of the forests and waste lands. Rule 7, Sub-rule 3, provides that reserved trees shall not be felled or otherwise interfered with except on a permit granted by the Forest Officer or an official of the Estate authorised by the Collector in this behalf. By Rule 13, a provision is made for punishment of those who infringe the rules. The last rule No. 15, says: In the above rules, the expression ' forest officer' means the Zamindar of the Sivaganga Estate. The learned advocate for the respondent contended that by reason of the notification, the Zamindar was not entitled to maintain the suit as Zamindar. He attempted to support his argument by referring to cases which lay down that a lessor cannot before the termination of the lease granted by him sue to eject a trespasser from the demised property. He cited Ramanadan Chetti v. Pulikutti Servai (1898) 8 M.L.J. 121 : I.L.R. 21 Mad. 288 and Mohideen Ravuther v. Jayarama Iyer (1920) 40 M.L.J. 38 : I.L.R. 44 Mad. 937. I am unable to see the bearing of these cases or the proposition of law which was enunciated therein, on this case. The fact that large powers have been granted by the notification to the Collector for regulating the management of the forest does not mean that either the ownership or the legal right of the Zamindar to possession has been taken away. In any event having regard to the fact that this suit is not a suit to eject the defendants there is no room for an application even by analogy of the principle laid down in these cases. 6. The first prayer in the plaint is for a declaration that the property described as S. No. 2 in Ooravayal village, belongs to and is in the enjoyment of the plaintiff. I have not been referred to any provision of the Forest Act which deprives a Zamindar of his ownership of forest land which has been declared by notification to be "Reserved Forest." What the Zamindar requested the Government to do was to extend the provisions of Section 26 of the Forest Act to the forests and waste lands in his estate. These forests and waste lands do not become the property of the Government on the issue of a notification under Section 32 of the Madras Forest Act. I therefore do not see how the plaintiff as a Zamindar cannot maintain a suit for a declaration that the property belongs to him and is in his enjoyment. 7. It was admitted by the learned advocate for the respondents that neither the sections of the Act nor the rules framed under the Act provide for the institution of a suit by a Forest Officer as such. It is therefore difficult to understand the objection as developed in the lower Courts that the suit was not instituted by the Zamindar as a Forest Officer. The issue in the trial Court was whether the suit was not maintainable as it was not filed by the Forest Officer and in the trial Court reliance appears to have been placed for the defendants on Section 56 of the Madras Forest Act. This section has obviously no application. In the lower appellate Court the argument which appears to have found favour with the learned Subordinate Judge was that the suit should fail inasmuch as the suit was not filed by the Government or under the authority and sanction of the Government or by the plaintiff in his capacity as Forest Officer. I have not been shown any provision under which either the Government or the Forest Officer as such could maintain a suit for a declaration of title and ownership as regards forest lands in the estate. 8. In this case it is not as if the defendants pleaded that their action was justified on account of any permission granted by the Collector under the rules made by the notification, Ex. P-2. There is no conflict in this case between the powers of the Collector under the notification and the rights of the Zamindar as the proprietor of the estate in which the forests are situate. In such circumstances it is imposible for me to accept the contention on behalf of the respondents that the suit is not maintainable. 9. My attention was drawn to the provisions of Madras Act XVIII of 1946 which received the assent of His Excellency the Governor-General on 20th October, 1946. Under Section 5 all suits, proceedings in execution of decrees or orders and other proceedings by way of appeal or revision in which a claim to customary or prescriptive rights in forest is involved,...which are pending at the commencement of this Act...shall stand stayed and shall not be proceeded with until after the expiration of this Act. I am clearly of opinion that the provisions of this Act do not apply to the present case for two reasons: (1) this is not a case in which a claim to customary or prescriptive rights in a forest is involved; and (sic) the Act itself does not apply to reserved forests constituted under the Madras Forest Act of (sic). The learned advocate for the respondents contended that the words " but does not apply to reserved forests constituted under the Madras Forests Act, 1882 " are only an exception to Sub-clause (iii) of Sub-section (2) of Section 1, i.e., to private forests situated in other areas in the Province of Madras and having; a contiguous area exceeding 100 acres which may be declared by the Provincial Government to be forests for the purposes of this Act by notification in the Fort St. Gearge Gazette. It is clear from the terms of the sub-clause that the contention is without any substance. Sub-clause (iii) refers to private forests which will be declared by the Provincial Government to be forests for purposes of the Act by notification in the Fort St. George Gazette. There is no point in saying that to reserved forests among such a class of forests, the Act will not apply, because one would presume that the Government would not declare certain forests to be forests for purposes of this Act, knowing at the same time that under the proviso if they are reserved forests, the provisions of the Act will not apply. In my opinion the words "does not apply to reserved forests constituted under the Madras Forest Act, 1882," will certainly apply to Sub-clause (iii) namely, to forests situated in estates as defined in the Madras Estates Land Act including the suit forest. For these two reasons, I hold that the hearing of this second appeal need not be stayed. 10. As the learned Subordinate Judge did not deal with the merits but dismissed the suit on this preliminary point, the second appeal is allowed and the case is sent back to the learned Subordinate Judge for disposal on the issues other than the issue disposed of by this Court. 11. Costs of the second appeal will abide the final result. Court-fee on the memorandum of appeal will be refunded. (Leave refused). 12. C.M.P. Nos. 3552, 3553 and 5682 of 1945.--These applications are only made for interlocutory relief till the disposal of the second appeal. They are therefore dismissed. If necessary, the plaintiff will be at liberty to make similar applications to the lower appellate Court. Madras High Court Minor D. Shanmuga Raja, Zamindar ... vs Raja Sir S.R.M.M.A. Annamalai ... on 19 April, 1945 Equivalent citations: AIR 1945 Mad 509 Author: P Sastri JUDGMENT Patanjali Sastri, J. 1. The zamindar of Sivaganga, the appellant, instituted the suits out of which these appeals arise for recovery of arrears of poruppu with interest alleged to be duo to him for Faslis 1347 and 1348 from the respondents as joint owners of certain villages in the zamindari granted to their predecessor in title on a permanent cowle on 9th February 1881. The claim is based on the cowle-deed as modified by a compromise decree made in a prior litigation between the parties. The respondents pleaded inter alia, that they were entitled to a deduction of the cess payable to Government by the appellant as landholder on the poruppu due to him as such cess not having been paid by the appellant was recovered from the respondents. The District Munsif, Devakottai, who tried the suits disallowed the deduction claimed, as in his view, the respondents failed to prove that they paid the cess payable by the appellant, and passed a decree for the arrears sued for with interest at 6 per cent, per annum and costs. On appeal the learned Subordinate Judge of Devakottai held, differing from the trial Court, that inasmuch as the zamiadar admittedly did not pay any part of the cess, payable in respect of the villages in question, the entire cess must be taken to have been paid by the respondents who could not have avoided such payment. And, being of opinion that the appellant was liable to pay a proportionate part of the cess calculated on the poruppu payable to him, the learned Judge allowed the deduction claimed in each of the suits and modified the decree of the trial Court accordingly. 2. Two contentions have been raised before us on behalf of the appellant. In the first place, it is argued that after the enactment of the provisions relating to a sub-landholder which were introduced in the Madras Local Boards Act, 1920, by the Amending Act, 11 of 1930, the landholder has ceased to be liable for any part of the cess due in respect of the lands held by the sub-landholder who is made liable directly to the Government for the entire cess payable on such lands with a right to reimbursement from the tenants of one half of the cess paid. It is accordingly claimed that the respondents who are admittedly sub-landholders within the meaning of the Act are not entitled to reimbursement against the appellant as landholder in respect of any part of the cess which they might have paid to the Government. And, secondly, the appellant as landholder cannot, in any case, be held liable for more than half the cess payable on the amount of poruppu and the respondents are not entitled to a deduction of the full amount of such cess as claimed by them. We are of opinion that both these contentions must fail. 3. The questions turn entirely on the true effect of certain rather obscurely worded provisions of the Madras Local Boards Act, 1920, as amended by the Madras Local Boards (Amendment) Act, 1930. These provisions may be summarized as follows: Section 3(9), (21) and (22) define "landholder," "sub-landholder" and "tenant" respectively and, for the purposes of these appeals, the expressions may be taken to refer to the proprietor, the registered holder of an under-tenure and an occupier of land in, an estate respectively. Section 78 provides for the levy of land cess on the annual rent value" of all occupied lands at the rate of one anna and a half for every rupee of such value. Section 79 lays down rules for fixing the annual rent value of lands hold on different tenures, and provides that, in the case of a zamindari estate such as the one here in question, the annual rent payable by the tenants' together with any water rate shall be taken to be the annual rent value of the lands. The District Collector is empowered Under Section 80, to require certain landholders and sub-landholders to furnish lists of their lands specifying, in the case of a landholder who has created an under-tenure a kattubadi, jodi, poruppu or quit rent payable to him by the sub-landholder, and, in the case of a sub-landholder, the annual rent value of the lands occupied by him exclusive of the water rate, if any, payable by his tenants direct to Government, and, Under Section 81, to assess the landholder or sub-landholder "according to such list." Section 88 provides for payment of land cess by landholders and sub-land-holders and reads thus: Every landholder and sub-landholder shall pay to the District Collector or other officer empowered by him to receive it, the land cess due in respect of lands held by him exclusive of the amount of such cess, if any, payable by the sub-landholder or landholder, as the case may be, and by the tenant on or before such dates and in such installments as the district collector under the general orders of the Board of Revenue may, by notification, declare. And if such lands be occupied by a tenant paying water-rate direct to Government, such tenant shall pay to the district collector together with the water-rate the land cess due on the amount of such water-rate: Provided that in all cases where a person holds lands with or without a right of occupancy as an intermediate landholder on an under-tenure created, continued or recognized by a landholder or sub-landholder, it shall be lawful for the landholder or sub-landholder to recover from such intermediate landholder the whole of the cess paid by the landholder or sub-landholder in respect of lands held by: unh intermediate landholder less one half the cess assessable on the amount of any kattubadi, jodi, poruppu or quit rant, payable by such intermediate landholder to the landholder or sub-landholder: Provided also that, in the case of lands occupied by tenants, it shall be lawful for the landholder, sub-landholder or any other intermediate landholder, as the case may be, to recover from his tenant one-half of the amount payable by such landholder, sub-landholder or intermediate landholder in respect of the lands so occupied. 4. It will be seen from these provisions that in the case of an estate it is only the landholder or sub-landholder that is made directly liable to pay land cess to the District Collector and not any other intermediate landholder who is not registered as a sub-landholder nor a tenant occupying the lands. This does not, however, mean that the intermediate landholder or the tenant in occupation goes free, for the two provisos make it clear that the landholder or the sub-landholder as the case may be is entitled to collect from the inter-mediate landholder the whole cess paid by him less half the cess assessable on the amount of the kattubadi etc., payable by such intermediate landholder and, where there is no such intermediate landholder, from the tenants one half of the amount payable by such landholder or sub-landholder. The intermediate landholder who has to pay the cess to the landholder or the sub-landholder is also similarly entitled to collect from the tenants one half of the amount payable by him. In other words under the scheme of assessment, collection and adjustment of the land cess provided for under the Act, the annual rent value of the land is the subject of the charge, and its incidence, in the case of an estate, is distributed equally between the landholder's interest and the tenant's interest in the land, each paying nine pies in every rupee of the rent value; and, where one or more under, tenures have been created in respect of the landholder's interest, the incidence is to be borne, as between the landholder and the intermediate landholders in the proportion in which the annual rent value is divided between them. But it is only the landholder and the intermediate landholder who is registered as a "sub-landholder" in the office of the District Collector that are brought into direct relation with Government for purposes of assessment and recovery of the cess, that is to say, each of them has to pay to Government 18 pies in every rupee of the annual rent value derived by him from the land and recover from the tenants 9 pies for every rupee on which he has paid the cess. The position may be illustrated by slightly modifying the old illustration to Section 88 which, was removed by the amending Act of 1930. A sub-landholder is entitled to receive from his tenants Rs. 500 as the annual rent on 100 acres of land. The sub-landholder has to pay the landholder Rs. 50 as kattubadi, jodi, poruppu or quit rent. The landholder has to pay to the Collector Rs. 4-11-0 on Rs. 50 and the sub-landholder has to pay Rs. 42-3-0 on Rs. 450 and they can recover Rs. 2-5-6 and Rs. 21-1-6 respectively from the tanants who have to bear half the land cess on Rs. 500, viz., Rs. 23-7-0. 5. It is argued for the appellant that, inasmuch as the sub-landholder is required Under Section 80(2)(b)to specify in the list of lands to be furnished by him the annual rent value of the lands occupied by him and the Collector has Under Section 81 to assess the tax "according to such list," the sub-landholder is liable for the entire cess and the landholder is under no liability to pay any part of it. This contention overlooks that the landholder is required Under Section 80(2)(a)(1) to specify in the list to be furnished by him to the Collector the kattubadi, etc., payable to him by a sub-landholder and he has to be assessed by the Collector, Under Section 81, according to such list, just as the sub-landholder is to be assessed according to the list furnished by the latter, while Section 88 provides that: Every landholder and sub-landholder shall pay to the Collector the land cess due in respect of the lands hold by him exclusive of the amount of such cess, if any, payable by the sub-landholder or landholder as the case may be. 6. These provisions clearly indicate that the landholder is directly responsible to pay the land cess to the District Collector on the kattubadi or poruppu payable to him by the sub-landholder and the absence of any provision in Section 88 for reimbursement of the latter in respect of such cess also points to the same conclusion. If, however, the landholder fails to pay the cess due from him and the sub-landholder pays it to avert attachment and sale of the lands, the latter has his remedy Under Section 108(g), T.P. Act, which entitles a lessee to make any payment due from the lessor and recoverable against the property and deduct it with interest from the rent. It is under this provision that the respondents claim the deduction now in question. The appellant next contends that the respondents are not entitled to a deduction of the full cess payable on the kattubadi or poruppu as one half of such cess is to be borne by the tenants. It is true that, in its ultimate incidence, the burden of such cess has to be shared equally between the landholder and the tenants. But as pointed out already, under the scheme of collection and adjustment laid down in the Act, the landholder has to pay to Government in the first instance the whole of the cess payable on the poruppu and recover from the tenants one half of the amount so paid. There is, however, no provision in the Act, enabling the sub-landholder who pays the full cess payable by the landholder to recover from the tenants half the cess paid. The respondents will thus have no means of reimbursing themselves in full if they are not allowed the deduction as now claimed by them. There is nothing to show that they have recovered from the tenants anything more than one half of the amount payable by themselves, that is on the annual rent value of the lands less the poruppu payable to the appellant. The decrees of the Court below are, therefore, affirmed and these appeals are dismissed with costs. Madras High Court The Ramnad Zamindar And Anr. vs Dorasami on 4 February, 1881 Equivalent citations: (1882) ILR 7 Mad 341 Bench: C A Turner, Kt., Kindersley JUDGMENT 1. Sivasami Tevar, the respondent's father, claimed the zamindari of Ramnad, but, in release of his claim, accepted, in January 1861, certain villages and a monthly allowance of Rs. 700 to be paid out of the revenues of the zamindari. Sivasami Tevar died on 1st July 1861, leaving a widow, Kolanathai Nachiar, and according to the respondent's case, another widow, Ramamani Ammal, the mother of the respondent and of his sister since deceased. 2. Kolanthai Nachiar obtained a certificate to collect the debts of the deceased and denied the status of Ramamani Ammal as a widow of the deceased and the legitimacy of her children, consequently Ramamani Ammal instituted Original Suit 13 of 1864 on the file of the District Court of Madura to establish the right of the respondent as the son and sole heir of Sivasami to inherit the movable and immovable estate left by him. Kolanthai Nachiar disputed the claim on the grounds that Ramamani was a prostitute and of a class with which a marriage, if celebrated, would not be valid, and that the respondent was not the son of Sivasami. The District Judge decreed the claim; the High Court reversed the decree of the District Court, and the Privy Council, on 21st November 1871, reversed the decree of the High Court, and restored that of the Court of First Instance. Meanwhile the zamindar of Ramnad had abstained from paying the allowance. Kolanthai Nachiar, having succeeded in the High Court, consequently instituted Original Suit 10 of 1867 to enforce its payment. The zamindar contended that the allowance was personal to Sivasami and did not descend to his heirs, but the plea was overruled and Kolanathai Nachiar obtained a decree. 3. In the suit brought on behalf of the respondent Kolanthai Nachiar had adduced evidence to show that Ramamani Ammal was a dancinggirl attached to the Tiruchuli pagoda, and in the course of there judgment, the Lords of the Privy Council had observed that "they felt strongly that if a few years only before the suit she had been an avowed public dancing girl attached to the temple, clear and abundant evce of the fact might have been given " 4. Having failed in resisting the claim made on behalf of the respondent on the ground of succession, Kolanthai Nachiar instituted Original Suit No. 19 of 1873, claiming to succeed in virtue of an alleged will of Sivasami Tevar. In that suit it was averred that the respondent's mother, Ramamani, was a dancing woman, attached to a temple, and incompetent to contract marriage, and in support of the averment there were filed the exhibits I to XVII, on which the appellant principally relies in the present case. 5. The will was pronounced a forgery, and although the District Judge appears to have considered the exhibits I to XVII were genuine, no application was made on the strength of them by Kolanthai Nachiar to obtain a review of the judgment, which had deprived her of the estate. 6. The respondent, on 9th October 1879, instituted the suit, in which this appeal arises, against the minor zamindar of Ramnad to establish his right to the allowance, and the claim is resisted on the ground that it is barred by limitation, and on the further ground that the respondent is not the legitimate son of Sivasami. We have already held in a connected suit that the respondent came of age in March 1875 when he attained the age of 16 years, and that he cannot claim under the Limitation Act of 1877 a longer period of exemption, on the ground of incapacity, than would have expired on the 1st October 1879; but the right which the respondent seeks to establish is a recurring right, and he is entitled by the present Limitation Act to sue within a period of twelve years from the date on which he demanded and was refused the right. Act XV of 1877, Schedule II, Clause 131. [q.v. supra, 7 Mad. 341.] 7. It is not shown that any demand was made for the payment of the allowance on behalf of the respondent until 1872. It is argued that, because in the suit brought by Kolanthai Nachiar it was pleaded that the payment ceased to be due on the death of Sivasami, it must be taken that the plea amounted to a refusal of the right of the respondent; but, although it may be allowed that the plea was equivalent to a denial of the right as appertaining to any heir of Sivasami, it was not made in answer to a demand by or on behalf of the respondent, and therefore in our judgment the period of limitation is not to be computed from that period. Consequently we hold that the claim is not barred by limitation. It has next to be determined, whether on behalf of the zamindar of Ramnad the title of the respondent can be challenged in view of the judgment which has been given by the Privy Council in his favour? On this point we agree with the Judge that, inasmuch as the zamindar of Ramnad was not a party to that suit, the decision cannot be pleaded as an estoppel, precluding him from putting the respondent to proof of his title in this suit. 8. We proceed then to consider whether the respondent has established his claim as the heir of Sivasami Tevar. It is not now denied that he was the son of Sivasami. The objection to his title is again rested on the allegation that his mother was a dancing woman, dedicated to the service of the pagoda. We do not think it. necessary to enter into a minute discussion of the evidence, seeing that we are not prepared to dissent from the conclusion at which the District Judge has arrived, and agree in the main with the observations he has made. It is possible that some of the exhibits, by which it is sought to prove that there was a Ramamani in the band of dancing girls at the Tiruchuli pagoda, are genuine; but the strongest suspicion attaches to those by which it is sought to prove that the Ramamani to whom those exhibits allude is identical with the lady of that name, who was the mother of the respondent. Exhibits I to XII may be genuine, but we doubt exhibits XIII and XVI, and we consider the grounds sound on which the Judge has held exhibits XVI and XVII to be forgeries, and the identification of the signature to exhibit XV altogether unreliable. 9. The evidence of the woman connected with the temple is such as it would not be difficult to procure, and if it had been possible to adduce in support of it the documentary evidence on which the appellant now relies, we believe that it would have come to the knowledge of the agents of Kolanthai Nachiar, and would have been produced in the litigation with Ramamani. 10. The exhibits XVIII, XIX, XX, and XXI and the evidence of the witnesses who support these documents, adduced to prove the purchase of Ramamani, are, in our opinion, altogether unreliable. 11. We have, on the part of the respondent, evidence of witnesses, who speak to a marriage having been celebrated between Ramamani and Sivasami, evidence that on Sivasami's death, Ramamani was treated by the mother of Sivasami as a lawful wife, that her thali was removed and replaced by a gold chain, as is usual in the case of widows who have been married, that her daughter, the sister of the respondent, was married to a member of the family, and that she herself was addressed as a widow by a close relation of Kolanthai Nachair. It is undoubtedly unsatisfactory, that the respondent has not in this suit gone into evidence to prove the parentage of his mother, though we can understand that the lady herself was reluctant to appear to expose herself to a cross-examination directed to show that she had been a dancing woman. 12. We agree with the District Judge that, on the principle declared by the Privy Council in the former suit, the legitimacy of the respondent has been sufficiently established to entitle him to a decree. 13. In awarding, however, relief to the respondent, we consider the Judge should have acceded to the application on behalf of the zamindar and have granted an injunction restraining Kolanthai Nachair from executing further the decree she has obtained against his predecessor. With this modification we affirm the decree of the District Court and dismiss the appeal with costs. -------------------------------------------------------------------------------- Description of Suit. Period of Limitation. Time from which period begins to run. -------------------------------------------------------------------------------- To establish Twelve years. When the plaintiff is first refused periodically recurring the enjoyment of right.] right. -------------------------------------------------------------------------------- Madras High Court M. Subbayya Thevar, Zamindar Of ... vs Sivagnana Marudappa Pandian on 21 March, 1936 Equivalent citations: (1936) 71 MLJ 568 Author: Varadachariar JUDGMENT Varadachariar, J. 1. This is an appeal by the defendant who has been directed by the decree of the lower Court to pay certain sums of money to the plaintiff, his son, towards maintenance. The plaintiff is an adult and is not under the Hindu Law ordinarily entitled to enforce payment of maintenance as a "personal" obligation of the father. Where the father is in possession of joint family property, the adult son is entitled to be maintained from out of the income of the joint family property but it is doubtful if he can maintain a suit for maintenance against the father when he could as well sue for partition. Where the property in the father's possession is impartible the son would not, even if the impartible estate be joint family property, be entitled to sue for partition and in such cases a suit for maintenance has been permitted. 2. In the present case the plaint proceeded on the footing that the defendant was in possession of the Uttumalai Zamindari in some character other than that of separate property. The plaint also alleged that there was an immemorial and well-known custom prevalent in the Uttumalai Zamindari and all other Zamindaris according to which a person in the position of the plaintiff was entitled to maintenance. The defendant denied that the plaintiff was entitled to maintenance. He asserted that the Uttumalai Zamindari must be regarded as separate property in his hands and not as joint family property out of which the plaintiff can claim maintenance. He also denied the existence of the custom alleged in the plaint; and, in paragraph 2 of the additional statement filed on the 17th December, 1930, it was distinctly asserted: No such custom has hitherto been recognised in judicial decisions at any rate when the impartible estate is the self-acquired property of the holder. 3. In the rejoinder filed by the plaintiff in answer to this statement no new information was vouchsafed, but it was asserted that the Uttumalai Zamin was in no sense the self-acquired property of the defendant. 4. On these allegations, issues were framed, of which it is sufficient to refer to issues 2, 3 and 4. Issue 2 raised the question whether the Uttumalai Zamindari was the joint family property of the parties or the sole property of the defendant. The lower Court rightly found that the property was the separate property of the defendant because he got it by inheritance from his sister's adopted son. This finding has not been attacked before us and it is unnecessary to say more on this issue. 5. The fourth issue was to the effect, "Is that custom true?". It is to be regretted that the issue was framed in a form which did not bring out the nature of the custom pleaded or required for the purposes of the case. The point really in controversy between the parties on the question of custom was whether there was a custom to pay maintenance even when the property is not held by the holder for the time being, as joint family property; if it was joint family property, the right of the first generation of descendants to maintenance, has not been disputed. This way of framing issue No. 4 has led to an obvious mistake in the treatment of the case in the lower Court as we shall presently show. 6. The third issue ran as follows: If the second issue is found for the defendant, is plaintiff entitled to have that Zamindari taken into consideration in the fixing of the maintenance allowance to be awarded to him assuming the custom alleged by him to be true? 7. Issues 1 to 3 were heard as preliminary issues. On the third issue the learned Subordinate Judge curiously enough said that the defendant had made no distinction in his additional written statement as between Zamindaris which are held as joint family properties and Zamindaris which are self-acquisitions so far as the allegation as to the custom was concerned. He forgot that the plaint itself made very little differentiation between judicial decision and custom and the written statement accordingly followed the same lines. It is however obvious from the paragraph which we have already quoted from the additional written statement that the defendant did insist that the plaintiff was not entitled to maintenance if the Court should hold that the Zamindari in his hands was not joint family property. 8. The learned Subordinate Judge disposed of issue 3 in two sentences which we have had great difficulty in understanding. He said: Their Lordships of the Privy Council have referred in Protap Chandra Deo v. Jagadish Chandra Deo(1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to the expression of opinion in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.), though that expression of opinion has been stated in Baijnath Prasad Singh v. Tej Bali Singh(1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) to be obiter. Consequently I have to find the issue for the plaintiff. 9. The learned Counsel who appeared for the respondent before us has explained this judgment of the learned Subordinate Judge to mean that according to the observations of their Lordships in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) the son of the holder of an impartible estate has been recognized to be entitled to maintenance without the necessity of proving the custom in each case and as that decision proceeds upon the footing that in an impartible estate there are neither coparcenary rights nor any of the incidents relating to joint family property, the observations justify the award of maintenance to the son irrespective of the question whether the impartible estate in the possession of the father is joint family property or separate property. The learned Judge however recognised that Lord Dunedin himself in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 at 243 and 244 (P.C.) stated that many of the observations in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) might have to be ragarded as obiter. But as reference has been made in Pro tap Chandra Deo v. Jagadish Chandra Deo (1927) 53 M.L.J. 30 at 37 : L.R. 54 I.A. 289 : I.L.R. 54 Cal. 955 at 968 (P.C.) to Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) he thought he must follow the dictum in that case. 10. When the case came on before another Judge for the trial of the other issues in the case, the learned Counsel for the defendant asked for a separate trial and finding in respect of Issue No. 4. But the then Judge felt himself precluded from dealing with the question because of what he considered to be the implication of the finding already recorded by his predecessor on the third issue. He was good enough, however, in justice to the defendant, as he says, to refer to some of the contentions raised before him, but refrained from giving a finding on the point. Feeling himself precluded from dealing with the question of the plaintiff's right to maintenance, the new Subordinate Judge practically confined himself to the question of the amount of maintenance and other incidental matters. 11. In the course of the argument before us, Mr. Somayya has drawn our attention to the relevant decisions of the Judicial Committee and of all the Courts in India. More than one recent judgment of their Lordships has attempted to state with precision the result of the cases relating to impartible estates; it is therefore not necessary for us to refer to earlier decisions. Taken out of its context, the observation in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is no doubt capable of being understood in the way that the learned Subordinate Judge understood it. But a perusal of the whole judgment and a consideration of their Lordships' later judgments will show that that view is not correct. 12. It is unnecessary for the purposes of this case to discuss the exact basis of the decision in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) because in the later decisions in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) and Collector of Gorakhpur v. Ram Sundar Mal (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.), their Lordships have themselves attempted to state the position with the necessary qualifications. It is sufficient to refer to the observation in Collector of Gorakhpur v. Ram Sundar Mal (1934) 67 M.L.J. 274 : L.R. 61 I.A. 286 : A.I.R. 56 All. 468 at 485 (P.C.) that it has been clearly shown: That there is now no reason why the earlier judgments of the Board should not be followed, such as, for instance, the Chellapalli case, Yarlagadda Mallikarjuna v. Yarlagadda Durga Prasada (1900) 10 M.L.J. 294 : L.R. 27 I.A. 151 : I.L.R. 24 Mad. 147 (P.C.), which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family. 13. We may also add that the observation in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) that has been relied on by the learned Subordinate Judge and by the learned Counsel for the respondent before us does not itself purport to declare the right to maintenance but merely refers to the basis on which the right recognised in the earlier cases in respect of maintenance might be based, the suggestion being that custom rather than joint family right might be regarded as the basis. It was obviously not the effect or the intention of the sentence to recognise the right to maintenance in cases where no such right has been recognised in the earlier cases. Mr. Somayya admitted before u§ that in none of the earlier cases relating to impartible Zamindaris has the Court recognised a right in an adult son to claim maintenance from the impartible Zamindari in the hands of the father even when it was not joint family property. 14. We may refer in this connection to an observation in Sir D.F. Mulla's book, 8th Edn. at page 611 where a sentence from Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 at 785 (P.C.) is reproduced without the context in which it occurs. As it stands, the statement in the book is capable of being misread as supporting a general right to maintenance in favour of the son irrespective of the question whether the impartible estate in the father's hands is joint family property or not. In Commissioner of Income-tax v. Zamindar of Chemudu (1934) 67 M.L.J. 306 : I.L.R. 57 Mad. 1023 (F.B.) a Full Bench of this Court affirmed the principle that the right to maintenance which the son of the holder of an impartible Zamindari possesses is only an incident attaching to its character as joint family property. 15. The observations in Nilmony Singh Deo v. Hingoo hall Singh Deo (1879) I.L.R. 5 Cal. 256 are likewise capable of being misunderstood if the context is ignored. The antethesis drawn in that judgment was between claims by the younger sons against their elder brother on the one hand and claims by the descendants of the younger brother against their uncle. The son's claim against the father was not then before the Court. It is obvious that when one of three brothers inherits an impartible estate from the father, it would be an estate where the younger brothers had lost their right of succession only by reason of its impartibility. In such circumstances the Court thought that the younger sons would be entitled to maintenance without proof of special custom, but they added that as regards members belonging to a lower generation there must be definite proof of custom. 16. We may refer in passing to the way in which the matter has been dealt with in a recent enactment of the Madras Legislature. In Madras Act XII of 1934 which attempted to declare the law as it has been understood even prior to the decision in Rama Rao v. Rajah of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 I.L.R. 41 Mad. 778 (P.C.) and in conformity with the latest pronouncements of their Lordships as regards the true character of impartible estates, the second section which pro-pose's to add Section 9 to the Impartible Estates Act of 1904 is limited to cases where the estate has for the purpose of succession to be regarded as the property of the joint family. There is accordingly no warrant for Mr. Somayya's suggestion that there is a kind of consciousness in this presidency that a Zamindar's son should be entitled to maintenance from his father irrespective of the question whether in the father's hands the Zamindari is joint family property or not. It is not suggested that the evidence in this case establishes any custom to that effect. The decision of the lower Court in favour of the plaintiff is accordingly unsustainable. 17. Mr. Somayya suggested two other grounds in favour of the plaintiff's claim, on 18. The offer in the written statement is more in the nature of a voluntary undertaking and does not amount to any admission of a legal right; that undertaking is coupled with onditions which no Court of law can enforce, namely, that the plaintiff should behave in a particular way and be amenable to the defendant. No decree could be founded on such an offer. 19. The appeal must accordingly be allowed and the suit dismissed with costs both here and in the Court below. Madras High Court Chelladorai Alias Tiruvarasu ... vs Varagunarama Pandia ... on 25 January, 1960 Equivalent citations: AIR 1961 Mad 42, (1960) 2 MLJ 219 Bench: Rajagopalan, R Iyer JUDGMENT 1. These appeals under Section 51 of Act XXVI of 1948 are directed against the orders of the Estates Abolition Tribunal, Madurai in O. P. Nos. 167 and 170 of 1951, rejecting the claim of the respective appellants for a share in the compensation amount. Sivagiri in the Tirunveli District was an ancient impartible estate; and it was also included in the schedule to the Madras Impartible Estates Act (II of 1904). On the passing of the Madras Abolition of Zamindari and Conversion into Ryotwari Act (XXVI of 1948), which hereafter shall be refer-red to as the Act, the Sivagiri estate was taken over by the Government as and from 3-1-1951, the date of the notification. An advance compensation of Rs. 2,40,000 was deposited by the Government with the Chairman of the Estates Abolition Tribunal. 2. Senthattikalai Pandian Chinnathambiar, the previous Zamindar of Sivagiri Estate, died in 1934, leaving him surviving 7 sons, born of lawful wedlock and one Chinnadurai alias Ramchandran, the appellant in S. T. A. No. 138 of 1954, who was born of his continuously kept concubine. On the death of the Zamindar, the eldest of the legitimate sons, Varaguna Panclian, succeeded to the Zamindari. The management of the estate was, however, handed over by him in 1941 to the Court of Wards under Section 18 of the Madras Court of Wards Act. Varaguna Pandian married two wives, and had a concubine as well. He had four sons through his two wives, and two illegitimate sons, Chelladuri and Swamidurai, through his concubine. They are the appellants in S. T. A. No. 132 of 1954. It must be noticed that, on the date of the notification under Act 26 of 1948, Varaguna Panclian was the land-holder, though the management of the Sivagiri estate was in the hands of the Court of Wards. 3. In O. P. No. 170 of 1951, the six brothers of the Zamindar, Varaguna Pandian joining with their illegitimate half brother, Chinnadurai, (viz, the legitimate and illegitimate sons of the previous zamindar), claimed that they were entitled to a share in the compensation amount under Section 45(6) of the Act, or alternatively, to an 'aliquot share of the 1/5th of the compensation amount under Section 45(4) and (5). During the pendency of the petition, an arrangement Was entered into, between the court of Wards and the six brothers of the Zarnindar. The petition, therefore, proceeded before the Tribunal only with regard to 'the claim of the illegitimate son of the previous zammindar. His claim was contested by the Court of Wards. The Court of Wards denied that he was the illegitimate son of the previous Zamindar; it was also contended that, even if he were the illegitimate son of the previous zamindar, he Would not be entitled to any maintenance, out of the impartible estate of Sivagin, and consequently to any portion of the compensation amount. 4. The Tribunal found that Chinnadurai was the Dasi Putra or illegitimate son of the previous zamindar, born to him by his continuously kept concubine. On the other question, the Tribunal held that, as there was no proof of any special custom obtaining in the family, whereby the illegitimate son of the zamindar was entitled to be paid maintenance out of the income from the impartible estate, Chinna Dorai's claim had to fail. In that view, the Tribunal rejected the application of the illegitimate half brother of the Zamindar to a share in the amount, set apart for payment to the maintenance holders under Section 45. Chinna Durai has filed S. T. A. No. 136 of 1954 against the order of the Tribunal. 5. O. P. No. 167 of 1951 was filed by Chella Durai and Sami Durai claiming as the illegitimate sons of Varaguna Pandian, who was the Zamindar at the time of taking over the estate by the Government. They put forth, claims similar to Chinna Durai. Their status as illegitimate sons of the zamindar was, however, not denied. But their right to participate in the compensation amount was denied. The Tribunal held that, under the law the illegitimate, sons of the Zamindar would not be entitled to maintenance out of the income from the impartible estate, in the absence of custom, and that, is there was no proof of any such custom, the petitioners would not be entitled to the reliefs prayed for. In that view, the claim of Chella Durai and Sami. Durai was rejected. S. T. A. No. 132 of 1954 is filed by the aggrieved claimants against the order of the Tribunal. 6. It may be noticed that, in neither of the two cases, was any evidence let in about the existence of any custom in the family of the zamindar of Sivagiri, which would entitle the illegitimate son of a past or present Zamindar to be maintained out of the impartible estate. Such a right, however, has been put before us on the basis, that the custom was too well established to require proof of it in this particular, case, and that judicial notice should be taken of the existence of such a custom. 7. Independent of such a custom, it was also contended that an illegitimate son of the proprietor of an impartible estate would be entitled to be maintained out of it. Reliance for this contention was placed upon the dictum in certain decided cases, that an illegitimate son of a Sudra has the stains of a son would be a member of his putative father's family. It was argued that such an illegitimate son would, be entitled to be maintained out of income from the impartible estate, just as a son would be, and that on the abolition of the zamindari, the illegitimate son would be entitled to a share along with other members of the family in the one-fifth share of the compensation amount under Section 45(4) of the Act.. The validity of the contention depends on the assumption, that independent of a custom every member of a Zamindar's family would be entitled to he maintained from the impartible estate. That we shall show presently is not the law. 8. But before considering that aspect of the matter it is necessary to dispose of the contention regarding the claim to a share of the compensation amount under Section 45(6). 9. Under Section 3(b) of the Act, the entire estate shall stand transferred to the Government and was in them, free of all encumbrances. Under Section 66, [lie Madras Impartible Estates Act, 1904, would cease to apply to tile estate, if it had been governed by that enactment immediately before that date. Under Section 3(b) of the Act, the principal or any other land holder and any other person whose rights stand transferred shall be entitled to such rights arid privileges as are recognised or conferred under the Act. The Act provides for payment of compensation for an estate taken over. Section 45 refers to apportionment of compensation in the case of certain impartment estates. It runs as follows: : "(1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply: (2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group; (a) the principal landholder and his legitimate sons, grandsons and great grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great grandsons adopted be fore such date (who are hereinafter called 'shares') and (b) other persons, who, immediately before the notified date, were entitled to maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904 or under any decree or order of a court, award, or other instrument in writing or contract or family arrangement which is binding on the principal landholder (who are hereinafter called maintenance holders'). Provided that no such maintenance holder shall he entitled to any portion of the aggregate compensation aforesaid, if before the notified date, his claim for maintenance, or the claim of his branch of the family or maintenance has been settled or discharged in full. (3) The Tribunal shall next determine which creditors, if any, are lawfully entitled to have their debts paid from and out of the assets of the impartible estate, and the amount to which each of them is so entitled and only the remainder of the aggregate compensation shall be divisible among the sharers and maintenance holders as hereinafter provided. (4) The portion of the aggregate compensation aforesaid payable to the maintenance holders shall be determined by the Tribunal and notwithstanding any arrangement already made in respect of maintenance whether by a decree or order of a court award or other instrument in writing or contract or family arrangement such portion shall not exceed one fifth of the remainder referred to in Sub-section (3) except in the case referred to in the second proviso to Section 47, Sub-section (2), (5) (a) The Tribunal shall in determining the amount of the compensation payable to the maintenance holders and apportioning the same among them, have regard, as far as possible to the following consideration, namely: (i) the compensation payable in respect of the estate; (ii) the number of persons to be maintained out of the estate; (iii) the nearest of relationship of the person claiming to be maintained; (iv) the other sources of income of the claimant; and (v) the circumstances of the family of the claimant; (b) For the purpose of securing (i) that the amount of compensation payable to the maintenance holders does not exceed the limit specified in Sub-section (4) and (ii) that the same is apportioned among them on an equitable basis, the Tribunal shall have power, wherever necessary, to reopen, any arrangement already made in respect of maintenance, whether by a decree or order of a court, award or other instrument in writing or contract or family arrangement; (6) The balance of the aggregate compensation shall be divided among the shares, as if they owned such balance as a joint Hindu family, and a partition thereof had been effected among them on the notified date". As we pointed out before, on the taking over of an estate under the Act the only rights created in favour of the erstwhile landholder including the members of the family would be those granted under the Act, viz. compensation money ov pattas in certain cases. The Act makes provision for the distribution of the compensation amount. Section 45 contemplates such distribution only amongst the sharers, who have been statutorily defined as the principal landholder and certain of his descendants in the male line; vide Section 45(2). That specifically refers only to legitimate issue. No other member of the family would therefore get a right to a share in the compensation amount under Section 45(6). 10. The claim for a share of the compensation amount would depend on the question, whether a coparcenary existed between the holder of the impartible estate and the various claimants in respect of the compensation amount This question arose for consideration in Janardhana Krishna Ranga Rao v. State of Madras, . It was held in that case that the compensation amount paid by the Government could not be treated as joint family property, and that the custom of impartibility did not attach itself to the compensation to entitle the brother of a zamindar to claim a share therein. The reason was that the younger brother of the principle landholder, who had no interest in the impartible-estate on the date of notification except a right to get his customary maintenance, would not be entitled to any right in the compensation amount, except to such rights therein which are granted to him by the Act in lieu of the right of maintenance he had. The learned counsel for the appellants, although he did not give up the point conceded that this decision is binding on us, which should suffice to negative the right of the appellants to share in the compensation amount under Section 45(6) of the. Act. In our opinion the decision in is decisive on the claim to a share of the compensation amount. 11. The substantial question which is common to both the appeals is, whether an illegitimate SOD of a landholder of an impartible estate, would be entitled to maintenance out of the estate, so as to entitle him to a share in the compensation amount which is set apart under the provisions of Section 45(4) of the Act to the persons entitled to maintenance out of the estate. 12. In certain cases a right to maintenance may or does exist irrespective of the possession of any property. For example, under the Hindu law, there is a personal liability to maintain the wife, minor sons, unmarried daughters and aged parents. 13. This obligation does not depend on the person owning any property. Equally personal is the liability recognised under Section 488 Cr. P. C. which would cover an obligation to maintain an illegitimate child. Such personal obligation very often lapse on the death of the person liable to provide the maintenance. Such rights would not however come under Section 45 of the Act except to the extent of the maintenance holder coming in, in regard to unpaid arrears of maintenance as a creditor of the principal landholder. 14. There is, however, yet another kind of liability. That depends on the existence of property. The basis of such a liability is stated in Mayne on Hindu Law and Usage, 11th Edn. page 813 thus: "The importance and extent of the rights of maintenance necessarily arises from the theory of an undivided family. The head of such a family is bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriage; in other words, those who would be entitled to share in the bulk of the property are entitled to have all their necessary expenses paid out of its income". The principle or theory on which the right is based is that the member had some kind of right in the property as a member of the family, though he was not a coparcener or one entitled to claim a share therein. Therefore, before a person can claim to be entitled to he maintained out of impartible estate, it should be found that he had interest therein. It is now well settled that impartibility is essentially a creature of custom. Ordinarily family property is partible; but property might not be partible by virtue of the express terms in a Sannad or grant made by the Crown or Government, or it may be such by reason of custom. Under the Hindu Succession Act, 30 of 1956, impartibility is recognised only in the case where the terms of a Crown or Government grant impose such a condition. Impartibility by custom has not been recognised and succession to such property would hereafter be regulated by the rules which apply to other property. 15. But the rights of the parties in the present case arose before the Hindu Succession Act, 1955 came into operation and will be governed by the general principles of the Hindu law. Where impartibility is by virtue of custom, it has been held that the property, though it was an ancestral one, was not held in coparcenary by the various members of the family. The junior members have no right to the property. They have no right to interdict alienations by the holder of the estate or to claim partition. In Shibaprasad Singh v. Prayagkumari Debi, ILR 59 Cal 1399 at p. 1413 : (AIR 1932 PC 216 at p. 222), Sir Dins haw Mulla observed. "Impartibility is essentially a creature of custom. In the case of ordinary joint family property, members of the family have (1) the right of partition, (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance, and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility -- To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartiblity This right, therefore, still remains ...... To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property, though the other rights, which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains". It was held that the holder of an impartible estate could alienate by gift inter vivos or by will unless he was prevented from doing so by the terms of the grant or by custom. This rule however would have only a limited application in Madras, where there is a statutory provision regulating the rights over impartible estates which have been included in the schedule thereto. Section 4(1) of that enactment specifically provides that the proprietor of an impartible estate would not be capable of alienating or binding by his debts, except to the extent to which the manager of a joint Hindu family could do. 16. But whether it be under the general law or under the provisions of Madras Act II of 1904, the junior members would have no interest in the impartible estate. Having no interest in the impartible estate they would have no right to maintenance out of that estate on the theory of such liability attaching to fimily properly in favour of its members. An illegitimate son whether of the previous or the present zamindar would therefore have no right to be maintained out of the impartible estate under the general law relating to impartible estates. 17. But right to maintenance could exist if there is a universal local or family custom sanctioning it. In Venkata Mahipati Gangadhara Rama Rao v. Rajah of Pithapur, ILR 41 Mad 778: (AIR 1918 PC 81). the Privy Council he'd that, In the absence of special custom, the grandson of the deceased zamindar would not be entitled to maintenance out of impartible estate in the hands of his successor. Lord Dunedin observed at page 785 (of ILR Mad): (at p. 83 of AIR): "An impartible zamindari is the creature of custom, and it is of its existence that no coparcenery exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the plaintiff is a person who, if the zamindari were not impartible, would be entitled as of right to maintenance, There is no claim based on personal relationship". "This proposition, it must be noted, does not negative the doctrine that there are members of the family entitled to maintenance in the case of an impartible zamindari. Just as the impartibility is the creature of custom so custom may and does affirm a right to maintenance in certain members of the family. No attempt has been as already stated, made by the plain tiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. When a custom or usage, whether in regard to a tenure or a contract or a family right is repeatedly brought to the notice of the Courts of a country, the courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case". 18. In Kondama Naicker v. Kondama Naicker, 1942 Mad WN 71, there was a claim for maintenance by the illegitimate son of a former zamindar of an impartible estate. The zamindari was in the possession of the partner uncle's son of the former zamindar. The claim of the illegitimate son was put on the ground of his right in the impartible estate as a member of the joint family. That claim was negatived by a Bench of this court following the decision of the Privy Council in ILR 41 Mad 778 : (AIR 1918 PC 81). 19. The question was elaborately considered again by the Privy Council in Commissioner of Income-tax, Punjab v. Krishna Kishore, ILR (1942) 23 Lah 1: (AIR 1941 PC 120). It was held that Income from an impartible estate was not the income of the undivided family but that of the holder, notwithstanding the fact that he had sons, and that there was no right to maintenance in the junior members save as such that was impressed by custom. Such custom was held to have been recognised in the case of sons. 20. Section 9 of the Madras Impartible Estates Act recognises the right of certain junior members to maintenance and makes specific provisions as to the persons entitled to maintenance out of an impartible estate and its income where such an estate is joint family property. Section 9 sets out the persons entitled to maintenance. They are the son, grandson and great grandson of the proprietor of the estate of any previous proprietor as well as their childless widows, the widow of any previous proprietor, and the unmarried daughter of the proprietor or of any previous proprietor as well as of a son or grandson, of the proprietor or of any previous proprietor where she has neither father, mother, and brother. An illegitimate son would not come within the category of relations set out in Section 9. Section 12 states: "Nothing contained in this Act shall affect the right to maintenance out of an impartible estate and the income thereof, of any other relations of the proprietor or any previous proprietor under any law or custom for the time being in force". Therefore, before an illegitimate son can claim to be maintained out of an impartible estate or its income, he should prove a custom by which he would be entitled to such maintenance. 21. The ordinary rule is that the party who sets up a custom should prove it. But there may be cases in which the custom is so well recognised that courts might take notice of them as engrafted on the general Hindu law. In such cases it would not be necessary for the party setting up the custom to prove it in the way in which a custom should be proved. In ILR 41 Mad 778 : (AIR 1918 PC 81) it was observed that if a custom, had been re-peatedly brought to the notice of courts and recognised, the courts might accept the same as part of the law of the land without necessity of independent proof in any particular case. 22. There was such recognition in regard to the claim to maintenance by the son of previous proprietor. In Thangavelu v. Court of Wards, Madras 1946-2 Mad LJ 143: (AIR 1947 Mad 38), the rule was recognised in the case of- an illegitimate son as well. In that case Patanjiili Sastri J, (as he then was) observed at page 152 (of Mad LJ): (at p. 44 of AIR): "The sons of a deceased Zamindar are entitled to maintenance out of the impartible estate in the hands of his successor without proof of special custom. The illegitimate son of a sudra has been held to be a member of his putative father's family and to have status of a son for purposes of maintenance. His right to receive maintenance out of the father's impartible estate was recognised and given effect to as well established by judicial precedents as long ago as 1870, in these circumstances we consider that no proof of special custom is necessary to entitle the appellants to maintenance out of the zamindari in the hands of the respondents 1 and 2". 23. The learned Judge referred to the decisions in Chuoturya Run Murdun v. Sahib Parhulad, 7 Moo Ind App 18 (PC), Nargunty Lathmeedevammal v. Venkama Naidoo, 9 Moo Ind App 66 (PC), Muthu-sami Jagaveera v. Vencateswara Yettayya, 12 Moo Ind App 203 (PC), and the same case on remand to the High Court in Yettappa Naicker v. Venkate-swara, 5 Mad HCR 405. The decision in 7 Moo Ind App 18 (PC) related to succession to a Raj. There was a claim by an illegitimate son of the previous Rajah who belonged to the Khatri caste, one of the regenerate castes in Hindu society. It was held that the illegitimate son would be entitled only to maintenance and not to a share in the property on the ground that the previous Rajah was not a sudra. 9 Moo Ind App 66 (PC) related to a disputed succession in regard to a palayam or Raj which was impartible. There is, however, nothing in the report to indicate as to whether the claim was by an illegitimate son. In 12 Moo Ind App 203 (PC), there was a claim by the illegitimate son of the deceased Zamindar against the successor zamindar for maintenance. The courts in India decreed maintenance against the separate property of the zamindar in the hands of the successor. The Privy Council set aside that decree and remitted the matter for determination whether the maintenance could be paid out of income from the zamindari. The judgment of the High Court after remand is reported in 5 Mad HCR 405. The learned Judges observed that it was clear upon the authorities cited, namely, 7 Moo Ind App 18 (PC) and 9 Moo Ind App 66 (PC), that impartible family estate was a fund on which maintenance might property be charged. The learned Judges mention the fact that the Advocate General who appeared for the Zamindar did not dispute that the course of decisions had. settled thaf question. The decision makes it clear that the right of an illegitimate son of the previous zamin-dar to have his' maintenance paid out of impartible estate was recognised from very early times. In Maharajah of Vekatagiri v. Rajarajeswar Rao, ILR 1939 Mad 622: (AIR 1939 Mad 614), a claim was made for'maintenance by the . illegitimate son of a junior member against the holder of an impartible estate on the basis of a grant made in favour of his putative father. The grant was construed as creating no rights in favour of an illegitimate issue. The learned Chief Justice held that there was no sufficient evidence in the case to prove a family or territorial custom. The claim in that ease was not by the illegitimate son of a zamindar but by one born to a junior member. The learned Judges however upheld his claim on the basis that he was a member of the family. That was reversed by the Privy Council in Rajah Krishnayachandra v. Rajeswara Rao ILR 1942 Mad 419 ; (AIR 1942 PC 3), Gurusami Pandian v. Pandia Chinnathambiar, ILR 44 Mad 1: (AIR 1921 Mad 340), was a case relating to the succession to the Sivagiri estate, In the course of the judgment, Krishnan J. stated that it had not been shown in that zamindari there was any customary right to maintenance. That observation was made to repel an argument, that certain maintenance grants were made in recognition of grantees' right in the zamindari. The question of the illegitimate son's claim for maintenance did not arise in that case. As pointed out in 1946-2 Mad LJ 143 : (AIR 1947 Mad 38) there had been no instance in which such a right was put forward and negatived. Indeed there was no such decision brought to our notice. Mr. Natcsan, the learned counsel for the respondents, contended that the decision in 12 Moo Ind App 203 (PC) and that reported in at page 405 of 5 Mad HCR were based on the theory that an illegitimate son, as a member of the family of his putative father, would be entitled to maintenance. That theory having been negatived by the later decisions in ILR 41 Mad 778 : (AIR 1918 PC 81) and in ILR. 1942-23 Lah 1 : (AIR 1941 Pp 120) it was contended that the basis of the earlier judgments was wrong, and they could no longer be relied on as validly recognising an illegitimate son's claim to maintenance. In other words it was said that the earlier cases proceeded not on any custom which was alleged or proved but on the principle of law that an illegitimate son was a member of the family and was therefore entitled to maintenance, and that the decision in 1946-2. Mad LJ 143 :. (AIR 1947 Mad 38), requires reconsideration. We do not agree. The illegitimate son's claim has undoubtedly been recognised all these years. The circumstance that the reason for the Custom has subsequently been found to be wrong cannot affect ifs validity. It must be noticed that it is the usage which makes the law, and not the reason for such is usage. The essentials of a valid custom are that it should be continuous and uniform not immoral or opposed to pubic policy and must have the qualities of antiquity and certainty. All these are present in the instant case. There is no further requirement under the Jaw that a custom in order to be upheld should be deducible from any accepted principle of law. In 1940-2 Mad LJ 143 : (AIR 1947 Mad 38) the learned Judges "rejected a similar contention in these words:- "A right which was considered to be indisputably established more than half a century ago and which is not shown to have since been denied or disputed in any decided case cannot in our opinion, be overthrown on the strength of recently expounded theories regarding its basis". We are in respectful agreement with that view. It would, therefore, follow that it is unnecessary for the appellants in the two appeals to adduce evidence of a custom, that they would be entitled to maintenance out of the impartible estate, as such Custom has been so well recognised as to become part of the law. 24. On behalf of the appellant in S. T. A. No. 138 of 1954 reliance was placed on Ex. A. 1, as amounting to recognition of his right to maintenance from the impartible estate. Ex. A. 1 is a decision of the magistrate on a reference by the Collector on behalf of the Court of Wards to settle the claim of maintenance of the appellants against their putative father, who was then alive. As the putative father would be liable personally to maintain his illegitimate sons, no inference could be drawn from mere fact that maintenance was awarded to the appellant under Ex. A. 1, In view an illegitimate son of a proprietor of an impartible an illegitimate son of a proprietor of an impartible estate would be entitled to maintenance out of the Zamindari, it is unnecessary to consider that matter further. On the finding, that the appellants in both the appeals would be entitled to maintenance, from the impartible estate, they would be entitled to a share in the amount allotted under Section 45(4) to the maintenance-holders of the family. 25. The appeals are allowed to this extent. The order of the Tribunal is set aside and the matter is remanded for fixing the quantum of compensation payable to each of the appellants. The appellants will be entitled to recover their costs from the con testing respondents. Madras High Court Kottilinga Settu Royer, Zamindar ... vs Sahaseanama Iyer And Ors. on 17 January, 1911 Equivalent citations: (1911) ILR 34 Mad 520 Author: Benson Bench: Benson, Sankaran-Nair ORDER 1. Before disposing of this second appeal, we shall direct the District Judge to return a finding on the question whether there has been any increase in the supply of water to the Moolachikulam tank on account of the improvements, if any, made by Government. Further evidence may be received, The finding should be submitted within two months from this date, and seven days will be allowed for filing objections. 2. In compliance with the above order the District Judge submitted the following finding: 3. On this evidence I find that there has been an increase in the supply of water to the Moolachikulam tank on account of the improvements made by Government but the full benefit of this increase has not been experienced owing to the negligence of the ryots in clearing the channel and tank under their control of silt. Case Note: Madras Irrigation Cess Act VII of 1865 - Madras Act II, 1864--'Defaulter,' who is--Person liable to pay cess under Act VII of 1865--The zamindar and not the tenant in occupation liable. JUDGMENT Benson, J. 4. The District Judge has now returned a finding that there has been an increase in the supply of water to the Moolachikulam tank in consequence of improvements carried out by Government. 5. It is conceded that on this finding Government is entitled under Madras Act VII of 1865 (amended by Act V of 1900) to impose the water-cess levied in this case. 6. The only other question is whether it is the zamindar (the second defendant) or the tenant (plaintiff) that is bound to pay it. 7. The District Judge has decided that the zamindar is the person liable, and that, if the circumstances are such as to justify him in demanding an enhancement of rent from the tenants, he should obtain the sanction of the Collector under Section 11 of Madras Act VIII of 1865. 8. I am of opinion that the decision of the District Judge is right, and in accordance with the scheme of the Revenue Recovery Act (Madras Act II of 1864) as explained by this Court in Zamorin of Calicut v. Sitarama (1884) I.L.R. 7 Mad. 405, Secretary of State for India v. Ashtamurthi (1890) I.L.R. 13 Mad. 89 and the recent Full Bench Case of Subramania Chetty v. Mahalingasami Sivan (1910) I.L.R. 33 Mad. 41, & 9. In the first of these cases Turner, C.J., and Muthusaml Ayyar, J., said "According to Section 2 of the Act it is the proprietary right that is liable to be sold. According to Section 1 it is the person in whom such right vests that is the 'land-holder According to Section 3, it is the proprietor that is liable for the payment of she revenue. According to Section 39, it is his right and property that passes by the revenue sale." 10. In the second case Parker, J., said "Regulation XXVI of 1802 provides that Collectors shall keep registers of landed property paying revenue to Government and shall also enter all transfers of landed property from one proprietor to another. The regulation does not appear to contemplate the contingency of the person paying the revenue not being the proprietor... It is admitted that the jenmi is really proprietor.... He therefore is, and has a legal right to be, the landholder within the meaning of Section 1of the Revenue Recovery Act." In the Full Bench Case it was observed that the word 'defaulter' is not defined in the Revenue Recovery Act, but it was held that, reading that Act along with Regulation XXVI of 1802, the term 'defaulter' applied only to the pattadar registered in the Collector's register and that he remained the 'landholder' under the Act, and liable for the revenue under Section 3 even after the real ownership had been transferred to some other person by sale or otherwise. 11. In the present case, however, the tenant relies on the unreported case of Nytiappan Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unrepetted), see 1910 M.W.N., 322 in which it was held that a zamindari tenant in occupation is the holder of land subject to the payment; of revenue direct to Government in respect of the water-cess, and therefore a landholder who becomes a defaulter under the Act." I was a party to that decision, but further consideration in the Full Bench Case of Vidyapurna Thirta Swami v. Ugganu Second Appeal No. 229 of 1907 (unreported), see 1910 M.W.N., 383 and in the present case has led roe to the conclusion that the decision in Nynappa Servai's case is opposed to the decision of the Full Bench in Subramanya Chetty's case above referred to and to the scheme of the Revenue Recovery Act and ought not to be followed. In Subramanya Chetty's case it was held that the term 'defaulter' "applies only to the registered pattadar." I do not think that the Full Bench contemplated any other person as liable to become a 'defaulter' under the Act, whether in respect of land revenue properly so called, or cesses which like land revenue are secured on the land and are recoverable as land revenue. I would therefore confirm the decree of the District Judge and dismiss the second appeals with costs two sets. The memoranda of objections are also dismissed with costs. Sankaran-Nair, J. 12. The finding is that there has been an increase in the supply of water to the Moolachikulam tank on account of the improvements made by Government and it is therefore conceded by all the parties that the water must be treated as Government water and the Government is accordingly entitled to impose water-cess. 13. The next question is who is the person bound to pay such water cess to Government: the zamindar or the ryots? 14. The Judge has held that the zamindar is the person who would suffer if Government proceeded to recover the tax by attachment or sale of the land and therefore he is the person bound to pay. The appellant contends on the authority of the decision in Nynap-pen Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unreported); (1910) M.W.N., 322 that the tenant is bound to pay. 15. As the Judge's opinion that the zamindari itself may be sold by Government if water cess, which is revenue, is not paid seems to be in accordance with the other cases decided by this Court, it seems necessary to review them before we follow the case cited. There is no difference between water-cess and ordinary revenue under Act II of 1864. Both Regulation XXV of 1802 and Regulation XXVI of 1802 contemplate settlement of land revenue only with the proprietors of land and require transfers of land from one proprietor to another to be registered. If the registry is not transferred, the obligation of the registered proprietor continues to subsist and the land remains security for the revenue. They do not contemplate, as pointed out by Parker, J., in Secretary of State for India v. Ashtamurthi (1890) I.L.R. 13 Mad. 89 at p. 115 with reference to the latter Regulation, the contingency of any person paying the revenue not being the proprietor, 16. Section (3) of Act II of 1864 imposes upon every 'landholder' the obligation to pay the revenue due on his land. If it is not paid, he becomes a defaulter and his land may be sold. "The land, buildings upon it and its products" are the security for the land revenue (see Section 3). The context shows that the full proprietary interest in the land is meant, The purchaser succeeds to all the rights and property of the former landholder' (Section 39) i.e., to the full proprietary interest subject to all the agreements between the defaulter and his tenants (see Section 41), Reading now the definition of 'landholder' in section I which a comprises "all persons holding under a Sanad-i-nailkiyat-i-istimrar, all other zamindars, shrotriamdars, jagirdars, inamdars, and all persons farming the land revenue under Government; all holders, of land under ryotwar settlements, or in any way subject to the payment of revenue direct to Government," by the light thrown upon it by the Regulations and the other sections of the Act, I have little doubt that it means the 'proprietor' referred to in the Regulations and not any subordinate tenure bolder or any tenant. 17. The land is the security for the revenue. At a revenue sale the purchaser gets the full proprietary interest subject to the rights of the tenants. Naturally, therefore, the proprietor is the person, entitled to pay the revenue to prevent the land being sold and the person to whom the Government must look for payment. He is therefore the 'landholder.' 18. The decided cases bear out this view. 19. Zamorin of Calicut v. Sitarama (1884) I.L.R. 7 Mad. 405 and Secretary of State for India v. Ashtamurthi (1890) I.L.R. 13 Mad. 89 were oases in which the Government sold the land when the pattadar was not the owner. In the first case the sale was affirmed on the ground that the owner was estopped from putting forward his claim as he had allowed the patta to stand in the name of his tenant, and, in dismissing the suit, the High Court said: "according to Section 2 of Act II of 1864 it is the proprietary right that is liable to be sold. According to Section 1, it is the person in whom such right vests that is the landholder. According to Section 3, it is the proprietor that is liable for the payment of the revenue. According to Section 39 it is his right and property that passes by the revenue sale." The contention that a tenant may be a landholder, and that his interest alone may be sold is inconsistent with this judgment. This principle was enforced in the next case. There a person had taken possession of certain waste land under a cowle from Government, and had subsequently obtained a patta for it after he brought it into cultivation, and the land was sold on default made by him for arrears of revenue. The question was fully argued and in an elaborate judgment the sale was set aside. Mr. Justice Parker held that the Jenmi, the proprietor, "is and has a legal right to be, the landholder within the meaning of Section 1 of the Revenue Recovery Act." Shephard, J., agreed and pointed out the distinction between a tax for which the land is liable to be sold and a personal charge payable by the occupier in respect of the land. In that case though the pattadar was interested in the land and could not have been turned out by the owner without payment for the improvement which consisted in bringing the land into cultivation, the sale was set aside in its entirety, the purchaser not obtaining even the rights which the pattadar admittedly had. Once the land is assessed to revenue in the name of the proprietor, any subsequent transfer will be treated under the Ragulations of 1802 as invalid against the Government claim to realize the revenue from the registered holder by the sale of the land. In Seshagiri v. Pichu (1888) I.L.R. 11 Mad. 452 Muthusami Ayyar, J., held that the real owner is also liable to pay the revenue while Kernan, J., held that though the transferee may be the real owner yet he is not a 'defaulter under Act II of 1864. Relying on the opinion of Muthusami Ayyar, J., it was held in Srinivasa Thatha Chariar v. Rama Ayyan (1894) I.L.R. 17 Mad. 247 that not only registered proprietors but also real owners may be treated as defaulters within the meaning of Section 35 of Act II of 1864. In Boja Sellappa Reddy v. Vridhachala Reddy (1907) I.L.R. 30 Mad. 35 at p. 38 Subramania Ayyar, J., took the opposite view, though curiously enough the cases in Seshagiri v. Pioku (1888) I.L.R. 11 Mad. 452 and Boja Sellappa Reddy v. Vriddhachala Reddy (1907) I.L.R. 30 Mad. 35 at p. 38 are not referred to in his judgment. He was of opinion that the owner cahnot by virtue of his ownership alone be compelled to pay the revenue, and he pointed out that the landholder is the registered holder, and, though the unregistered owner may lose his land if it is sold for arrears of revenue due by the registered holder, he cannot be treated as the defaulter and is not therefore a person bound to pay the revenue, though he may be interested in paying it. In this state of the authorities the question came before the Full Bench in Subramania Chetty v. Mahalingasami Sivan (1910) I.L.R. 33 Mad. 41 and we held that the transferee of the registered holder, though the real owner of the property, is not a 'defaulter' and the reason given is that, reading Act II of 1864 with Regulation XXVI of 1802 "the term 'defaulter' applies only to the registered pattadar," or, in other words, the 'landholder' is the registered pattadar as he alone is the defaulter under the Act. 20. In Nynappen Servai v. The Secretary of State for India Second Appeal No. 1597 of 1907 (unreported); (1910) M.W.N., 322 a different view from that laid down in the previous cases seem to have been taken. Apparently accepting the view that, where there is a registered proprietor, no other person is to be treated as 'a landholder' under the Act, the learned Judges proceeded to decide that when the revenue payable is not under a settlement, any person who may be deemed to be the holder of the land must be comprised in the term 'landholder' and therefore a tenant in occupation is a 'landholder' and 'defaulter' under the Act, with reference to the water cess which is revenue for this purpose. 21. It necessarily follows from this decision that in cases of sales for non-payment of such revenue the purchaser will get only the interest of the tenant, the 'landholder' under Section 39 of the Act. 22. It appears to me that this is opposed to the scheme of the Revenue Recovery Act and to the decisions. As I have pointed out above, the Government look to the full proprietary interest in the land for security for payment of revenue. In order to make that the security, they have to make the proprietor their debtor; for, as pointed out by Shephard, J., in Secretary of State for India v. Ashtamurthi (1890) I.L.R, 13 Mad. 89 at p. 123," a security presupposes an obligation and unless therefore an obligation has been imposed on the landholder, it is difficult to see how his interest in the land can be affected." As decided therein the proprietor is the person under the Act treated as the landholder and none other can be treated as such. The fact that there is no patta cannot make another liable. It is not clear from the judgment whether, besides the tenant, the zamindar also may be treated as the 'landholder' for the purpose of recovering the same debt. The defaulter is also personally liable and it can scarcely have been intended to create two classes of defaulters. 23. I am therefore of opinion that the Judge is right in holding that the person to pay the cess or revenue is the zamindar and that the judgment in the Weekly Notes should not be followed. 24. I accordingly dismiss the appeals with costs--two sets. 25. The memoranda of objections are also dismissed with costs. Madras High Court Ulagalum Perumal Sethurayar And ... vs Rani Subbalakshmi Nachiar on 19 March, 1935 Equivalent citations: (1936) 71 MLJ 1 Author: Ramesam JUDGMENT Ramesam, J. 1. This is an appeal against the decree of the Subordinate Judge of Tinnevelly granting the plaintiff possession of the properties mentioned in the plaint Schedules A to C and E and the moveables mentioned in Schedule 1 with mesne profits (Schedule D) to be ascertained. Schedule A abovementioned consists of the impartible Zamindari of Urkad. One Section Kotilingam Sethurayar was the Zamindar of Urkad on 2nd June, 1902, when the first Impartible Estates Act was passed. On the 29th May, 1902, i.e., four days before the coming into force of the Impartible Estates Act of 1902, he executed a deed of settlement (Ex. D). At that time he had one son K. Kotilinga Sethurayar by his deceased first wife, and had married a second wife who was enceinte. Under the deed of settlement (1) he reserved for himself the estate for life in the Zamindari (2) he settled the Zamindari absolutely on the child to be born by his second wife Thanga Pandichi provided the child is born alive and a male with a defeasance clause in case the child predeceased the settlor without leaving a male issue (3) in case a male child was not born alive, the property was to be settled on Thanga Pandichi absolutely with a clause of defeasance, in case she died without leaving a male issue in favour of his brother's son. He makes a provision for a house worth Rs. 2,000 for his eldest son and also provides for his maintenance at the rate of Rs. 75 per mensem, for his brother's son at the rate of Rs. 125 per mensem, for his mother at the rate of Rs. 70 per mensem, for his step grandmother at the rate of Rs. 33 1/2 per mensem and for his second wife at the rate of Rs. 70 per mensem. The document was executed and registered at Mylapore, Madras, where he must have gone for legal advice in connection with the settling of its terms. A son was born on the 13th August, 1902, - Meenakshisundara Vinayaga Perumal. Afterwards the second wife died in 1904 in child-birth. The Zamindar married a third wife and by her he had a son Ulagalum Perumal who was born in June, 1906, and who is the first defendant in the suit. Meanwhile the eldest son K. Kotlinga died in 1903. It may be mentioned here that the Impartible Estates Bill was published on the 11th May, 1902, and the Zamindar executed the deed of settlement in 'anticipation of its being passed into an Act. After the Act his power of disposal over the property was very limited as under the Impartible Estates Act the position of a Zamindar is analogous to that of the manager of a Hindu Joint family or that of a Hindu widow. It is also agreed on all hands that the motive for the execution of the settlement deed was that he conceived a dislike for his eldest son because he entered into a marriage against his father's wishes. The Zamindar died on the 7th January, 1907. On the 4th March, 1907, the Court of Wards took charge of the estate on behalf of the minor Meenakshisundara and also the guardianship of both the sons, i.e., Meenakshisundara and the first defendant Afterwards in 1923 the estate was handed over to Meenakshisundara when he attained majority. In July, 1929, he died leaving his widow Rani Subbalakshmi Nachiar who is the present plaintiff. Immediately after his death the Collector stated that he would recognise the first defendant as the heir and referred the plaintiff to a regular suit. The present suit was filed on the first October, 1929, to recover possession of the Zamindari (Schedule A)' and other connected properties. Schedule B relates to Devasthanams, charities, Kattalais and other endowments of which the Zamindar for the time being was the trustee. Schedule C relates to jewels, silver vessels and other moveables. Schedule D relates to mesne profits. The plaint also -contains an allegation that sometime after Meenakshisundara took charge of the estate he and the first defendant entered into a partition arrangement dividing the partible properties under which the properties in Schedule E fell to the share of Meenakshisundara and the properties in Schedule F to the share of the first defendant. Accordingly the plaintiff prayed for possession of the properties in Schedule E also. The second defendant who is a cousin of Section Kotilinga was impleaded as he was appointed manager by the last Zamindar under a title deed. Defendants 3 to 11 were tenants under rival leases. This portion of the suit has been either decided or compromised and we have got nothing to do with these defendants in appeal. The plaintiff having got a decree as prayed for, the first defendant files this appeal. His contention was that even if Meenakshisundara got a vested remainder in the Zamindari under the deed of settlement (Ex. D) which had fallen into possession on the death of his father, still he took it only as a member of the joint family and though for purposes of enjoyment he was the only person competent to enjoy the Zamindari on account of its impartible nature still for purposes of succession, it is joint property and the next heir has to be chosen on the footing of succession to joint family property, i.e., he contended that the property descended by survivorship to the first defendant and not to the plaintiff who would be the heir only if the suit property is the separate property of Meenakshisundara. This contention was negatived by the Court below and is repeated before us. 2. The main point in the argument for the appellant as urged by his Advocate Mr. Venkatrama Sastri is that though when impartible property is alienated to a stranger, the stranger takes it free of all jointness, i.e., as his separate property, still when the alienation is made to a member of the family the member takes it as joint family property by reason of its character prior to alienation. Almost at the threshold of this argument we are met with this anomaly, namely, that if Meenakshisundara took the Zamindari under the settlement as joint property, K. Kotilinga and the first defendant would be members of the joint family of which Meenakshisundara would be the head being the Zamindar and the others would be entitled to maintenance only, so that if Kotilinga survived Meenakshisundara dying without male issue he would be entitled to succeed. But this is the very thing which the settlor desired should not happen. According to the contention of the appellant, the effect of the settlement is merely to supersede K. Kotilinga and to appoint Meenakshisundara as the Zamindar in his stead and he relies on instances of such supersession of one branch in favour of a junior branch as supporting his contention. These instances are (1) Konammal v. Annadana (1927) L.R. 55 I.A. 114 : 54 M.L.J.. In that case it appears that when Lakshmanappa died in 1822 he was succeeded by the second son though the eldest son was living. What happened then was described as a relinquishment by Lakshmanappa to this second son because the eldest son was of weak intellect and his son was an infant. The Courts found as a fact that by an arrangement between the Poligar and the adult members of his family the Paliyam was transferred to the second son Annadana and that information of this was given to the Revenue Officials and was recorded by them. (Vide page 197). (2) a similar supersession of an elder by the second line and later on of the younger line by the elder line in Naraganti Achammagaru v. Venkatachala Nayanivaru (1881) I.L.R. 4 Mad. 250 and Sri Rajah Yanumula Venkayamah v. Sree Rajah Yanumula Boochia Venkondora (1870) 13 M.I.A. 333. It appears in that case the fifth Mansubdar Malappa Dhora fell out with his overlord. Thereupon Bapan Dhora turned out the said Malappa Dhora and took possession of the estate as the sixth Mansubdar. But it was held that Bapan Dhora took the estate on behalf of the rest of the undivided family. Now it appears that in the first and third of the above cases there is no document evidencing the transaction and the Courts inferred from the particular facts that a line was superseded or the Mansubdar was expelled with the result that the Zamindar in the first of the cases took it as head of the joint family and, in the second case, of the rest of the family other than Mallappa Dhora. In the decision in Naraganti Achammagaru v. Venkatachalapathi Nayanivaru (1881) I.L.R. 4 Mad. 250 two agreements were produced and it was held that they constituted a family arrangement. What was abandoned was only a "preferential right to the immediate enjoyment of the dignity of the Palayagar and actual possession of the estate". It was also observed that there was no evidence of any more extensive abandonment of their rights by the elder brothers of Kuppi Naidu (Vide page 261). It must also be remembered that at the dates when the incidents in the above three cases happened it was supposed that the owner of an impartible Zamindari was under the same restrictions in respect of the alienation of the Zamindari as the owner of partible property, when there are other male members in the family such as sons or brothers. It was only in 1888 that the right of the holder of an impartible Zamindari to alienate property to any person he liked without any justifying necessity was recognised. Prior to that date as no Zamindar was conscious of any larger power it would be unreasonable to attribute to a Zamindar an intention to effect an alienation exceeding his powers as they were then supposed to be. The three instances on which the appellant relies are therefore in my opinion dissimilar to the case before us. In my judgment in the case in Annadana v. Konammal (1922) 17 L.W. 107 which was affirmed by the Judicial Committee in Konammal v. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 (P.C.). I discussed the facts of each of these cases separately. At pages 120 and 121 I discussed the facts of Naraganti Achammagaru v. Venkatachala Nayanivaru (1881) I.L.R. 4 Mad. 250 and at pages 122 to 124 I discussed the history of the family in Rajah Yanumula Venkayamah v. Sree Rajah Yanumula Boochia Venkondora (1970) 13 M.I.A. 333 and it is unnecessary to repeat those observations here. In the present case we have got a Zamindar trying to dispose of his property in full consciousness of the power of alienation he possessed according to the decision of the Judicial Committee in Sartaj Kuari v. Deoraj Kuri (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) which was followed up by the decision in Sri Raja Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur v. The Court of Wards (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Sup.) 1 (P.C.), which was a case of a will and not of alienation inter vivos. With the full knowledge of his power the Zamindar intended to set aside his eldest son and for this purpose he executed a deed of settlement Ex. D by which he vested the whole property in favour of his second son who had at that time existed en ventre sa mere and who was the only person in whom he was Very much interested. He had not at that time married a third wife. It is doubtful whether, if the power of the holder of an impartible estate is less than the power of alienation conceded to him by the decisions in Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) and Ramakrishna Rao v. Court of Wards (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Sup.) 1 (P.C.) he can set aside one son in favour of another except by a family arrangement to which all are consenting parties. The first two of the earlier instances must now be regarded merely as cases of family arrangement to which the superseded persons were consenting parties, and in the third case though Mallappa Dhora was expelled, Bapan Dhora came in only as the head of the undivided family. There was no alienation or other transaction in that case which made it possible for one to hold that Bapan Dhora took the estate for himself only. 3. A further argument has been addressed on behalf of the appellant in a somewhat different strain - Assuming that Section Kotilinga intended to settle the property on Meenakshisundara, still the effect of such a transaction under the Hindu Law, it is contended, would be that Meenakshisundra would take it only on behalf of the family independent of the intention of the settlor. For this position Mr. Venkatrama Sastri relies on Mitakshara Chapter 1, Section 4. In verse 2 it is said only that property acquired by the co-parcener without detriment to the property of his father shall not appertain to the co-heirs; and it is argued that in the present case it is the father's property that is given to one of the sons. It is true that where the, property is joint family property the father may distribute it among his sons by any equitable arrangement of his own but the sons will take it as ancestral property. 'But where the property is the father's self-acquired property and he gives it to any one of his sons out of favour it is not clear that the son takes it as ancestral property. The lerarned Advocate-General who appeared for the respondent relies on verse 28 of the same section which says: What is obtained through the father's favour will be subsequently declared exempt from partition. 4. The reference here is to verses 13 and 16 of Section 6 (Vide Stokes Hindu Law Books). Where a father gives his self-acquired property to one of his sons, the question whether he takes it as ancestral property or as self-acquired property as between himself and his sons, has been very much discussed in a number of cases in India in all the High Courts and the point was finally discussed by the Judicial Committee in Lal Ram Singh v. Deputy Commissioner of Partabgarh (1923) 47 M.L.J. 260 : L.R. 50 I.A. 265 : I.L.R. 45 All. 596 All. 596 (P.C.) the conflict between the decisions of the Indian High Courts was noticed. In Muddun Gopal Thakur v. Ram Buksh Pandey (1863) 6 W.R. 71 and Hazari Mall Babu v. Abaninath Adhurjya (1912) 17 C.W.N. 280 it was held that the property was ancestral. In Madras it was held that the father may determine whether it should be ancestral or self-acquired but if he does not fairly indicate his wish, it is presumed to be ancestral Vide Tara Chund v. Reeb Ram(1866) 3 M.H.C.R. 50 Nagalingam Pillai v. Ramachandra Thevar (1901) 11 M.L.J. 210 : I.L.R. 24 Mad. 429. In Bombay it was regarded as self-acquired Vide Jugmohandas v. Sir Mangaldoss Nathubhoy (1886) I.L.R. 10 Bom. 528 and Nanabhai v. Achratbai (1886) I.L.R. 12 Bom. 122. So also in Allahabad Parsotam Rao Tantia v. Janki Bai (1907) I.L.R. 29 All. 354. In Rameshar v. MT.Rukmin (1911) 14 Oudh. Cases. 244 it was held that it would be ancestral. The Judicial Committee after noticing all these decisions finally remarked in Lal Ram Singh v. Dy. Commissioner of Partabgarh(1923) 47 M.L.J. 260 : L.R. 50 I.A. 265 : I.L.R. 45 All. 596 (P.C.) (at p. 605): Their Lordships deem it necessary to pronounce upon these points. It may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case. 5. Now it must be observed that in all the cases which have been just mentioned the only question that arose was whether the son who got the property from the father holds it as ancestral property or as self-acquired property as against his own son and not as against a brother or other collateral. Even in the earliest of these cases Muddun Gopal v. Ram Buksh Pandey (1863) 6 W.R. 71 where the matter was somewhat fully discussed. It was observed at page 72: it may well be that in property acquired by a man his sons may have an interest though mere co-sharers, such as brothers who have not contributed in any mariner to the acquisition, may not be entitled to participation, 6. And at page 73 it was observed that property distributed by a grandfather amongst his sons does not by such gift become the self-acquired property of the sons so as to enable them to dispose of it without the consent and to the prejudice of the grandsons. And in the case in Lal Ram Singh v. Deputy Commissioner of Partabgarh (1923) 47 M.L.J. 260 : L.R. 50 I.A. 265 : I.L.R. 45 All 596 (P.C.) though the decision turned "on the construction of the Oudh Estates Act the question was whether in the property of Lachman the plaintiff his son had any interest by birth. Now in the present case we are not concerned with any such question and it is not necessary to decide any such question. In Shibaprasad Singh v. Prayag Kumari Debi (1931) 63 M.L.J. 196 : L.R. 59 I.A. 331 : I.L.R. 59 Cal. 1399 p. (P.C.) Sir Dinshah Mulla observes: To this extent the general law of the Mitakshara has been superseded by custom and the impartible estate though ancestral is clothed with the incidents of self-acquired and separate property. 7. It is not suggested that the impartible estate is exactly in the position of self-acquired property, but for certain purposes (one of which is the matter of alienation) it is clothed with the incidents of self-acquired and separate property. Therefore looking at it as if it is clothed with the incidents of self-acquired property, when Section Kotilinga settled the Zamindari under Exhibit D, upon Meenakshisundara, Meenakshisundara took the property absolutely as his own so far as all the collaterals are concerned, i.e., his elder brother K. Kotilinga, his younger brother the first defendant and his cousin the second defendant, they have nothing to do with the property - not even the notional joint right useful at least for purposes of succession according to - the recent decisions of the Judicial Committee such as Konammal v. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 (P.C.) Shibaprasad Singh v. Prayagkumari Debee (1931) 63 M.L.J. 196 : L.R. 59 I.A. 331 : I.L.R. 59 Cal. 1399 (P.C.) and Collector of Gorakhpur v. Ram Sunder Mal (1934) 66 M.L.J. 588 : L.R. 61 I.A. 286 : I.L.R. 56 All. 468 (P.C.). It may be that such a question would have arisen if Meenakshisundara had a son so far as that son is concerned. In my opinion therefore the argument based on the Mitakshara does not advance the case any further. If the holder of an impartible estate has an absolute right of alienation inter vivos or by will according to the decisions in Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) and Ramakrishna Rao v. Court of Wards (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Sup.) 1 (P.C.) then one has only to follow the logical effect of these decisions and to hold that the alienee takes the property as absolute property, i.e., as self-acquired property and not jointly with other members of the joint family of which the donor himself and others were members. To so hold would be to say that the holder of the Zamindari has not an absolute power of alienation. The argument is that if the alienee is a stranger he would no doubt take an absolute estate but if the alienee is a member of the family he would take it only as joint property. Now seeing that even a member of a joint family may hold property as self-acquired when it is separately acquired, I do not see how the fact that the alienee is a member of the family can make any difference. To say that where the alienee is a member of the family he must hold it only as a member of the joint family is to really impose a restriction on the full power of alienation as recognised by the decisions of the Judicial Committee above mentioned. It imposes a disability on the holder of the estate and makes it impossible for him to pass an absolute estate to a member of the family which is inconsistent with the full power of alienation recognised by the decisions. If he has a full power of alienation, the immediate result of the alienation is that the alienee gets an absolute property. It is another thing to say that he afterwards threw it into the common stock or dealt with it as joint family property. Such subsequent conduct of the alienee is a different matter. In my opinion the alienation itself must pass an absolute estate. 8. It was very much pressed upon us that the object of the Zamindar was only to cut off K. Kotilinga and not to deprive the third son. This is indicated by the fact that the defeasance clause in Ex. D, providing that Meenakshisundara's mother Thanga Pandichi should take the property if Meenakshisundara dies before the settlor, allows such a defeasance only if Meenakshisundara dies before the settlor without leaving a male issue. No doubt the object of such a clause is that if Meenakshisundara dies leaving a male issue the document should not operate and the vested remainder of Meenakshisundara descends to his son. But this is merely a plain case. The mere fact that the settlor allows the property to go to Meenakshisundara's son gives us no indication that Meenakshisundara's son gets it by survivorship and not by inheritance. It is consistent with either alternative. Again it is said that the object of the defeasance clause vesting the property in Thanga Pandichi is to make it possible for a third son to get the property through her. This is true but the very method by which the result is arrived at shows that it cannot be held as joint family property. If the property goes, after Meenakshisundara, to his mother and then only goes to another son as the heir of the mother it cannot be joint family property. Therefore it cannot be said that Meenakshisundara himself held it as joint family property. Moreover if Thanga Pandichi had a son and a daughter instead of a son only, and in such a case Meenakshisundara died without male issue in the life time of the settlor the property would be Stridanam in the hands of Thanga Pandichi and then it would pass to her daughter in preference to the third son. The settlor had to risk these consequences because there was no means of giving the property direct to the third son after Meenakshisundara, no such son being in existence and it being impossible for a Hindu according to the then law to make a gift in favour of an unborn person as laid down in the Tagore case. The settlor's anxiety to supersede K. Kotilinga was so strong that he was willing to take the risk of things turning out not exactly as one would like. He provided for certain contingencies as far as he could and beyond that he left matters to take their own course. Again it must be remembered that all the contingencies provided for are only in case Meenakshisundara died during the life time of the settlor leaving or without leaving a male issue as the case may be. If he succeeds the settlor and enjoys the property and then dies, the settlor had nothing to say by way of providing for such a contingency. He left the law to take its course. This is of course the contingency that has happened. An impartible estate goes by survivorship to the other member's of the family only if at the time the succession opens it is held as the property of the joint family the other members having no right of enjoyment nor the right of interdicting alienation but the right of maintenance limited only to the son of the Zamindar Rama Rao v. Raja of Pithapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 : I.L.R. 41 Mad. 778 : (P.C.) and waiting for the chance of succession on the basis of joint family. It is true that such chance of succession may not properly be described as a mere spes successionis, for here the chance of succession is the logical result of a notional interest in the property. In Shiba prasad Singh v. Prayag Kumari Debee (1931) 63 M.L.J. 196 : L.R. 59 I.A. 331 : I.L.R. 59 Cal. 1399 at 1413 (P.C.), Sir Dinshah Mulla observes: Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on...the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered. 9. But the impartible estate will not go by survivourship to another male member if at the time when the succession opens it is not held as joint property - even in the sense described above but is held only as the separate property of the propositus. Such cases can occur either by renunciation or by partition in which the Zamindari is also taken into account or by some such equivalent transaction. Examples of this are Vadrevu Ranganayakamma v. Vadrevu Bulli Ramayya (1879) 5 C.L.R. 439 (P.C.), Gurusami Pandiyan v. Pandia Chinna Thambiar (1920) 39 M.L.J. 529 : I.L.R. 44 Mad. 1, Tara Kumari v. Chathurbuj Narayan Singh (1915) 29 M.L.J. 371 : L.R. 42 I.A. 192 : I.L.R. 42 Cal. 1179 (P.C.) and Periasami v. Periasami (1878) L.R. 5 I.A. 61 (P.C.). In the present case Meenakshisundara having got the property absolutely as separate property by an alienation of Section Kotilinga, his heir is to be sought on the footing of its being his separate property and not on the footing that he held it as a member of the joint family even in the limited sense in which an impartible property held by a single holder can be said to belong to the joint family. That being so, the property cannot go by survivorship to the first defendant but descends by succession to the plaintiff. Moreover if the settlor intended to give the vested remainder to Meenakshisundara as joint property up to a certain point of time, namely, the death of Meenakshisundara during the lifetime of the settlor without leaving a male issue, as contended for by the appellant, it is doubtful whether the settlor can make any further dispositions at all. Having given it away the property to be held by Meenakshisundara as the property of the joint family of which he is the enjoying head, how can the settlor at that stage change the character of the property and make further dispositions regarding it on the footing of its being the separate property of Meenakshisundara and introduce a clause of defeasance? The moment Meenakshisundara dies without leaving a male issue, it will go by survivorship to any male member then existing such as K. Kottilinga if he had lived on or the present first defendant. The settlor can introduce a clause of defeasance so as to override the survivorship only by changing the character in which Meenakshisundara would have held up to his death. In the first place it is doubtful if he can do so. In the second place there are not words in the settlement showing that at that point of time the settlor wanted to impose a change of character on the holding of the property by Meenakshisundara. In my opinion this last consideration is conclusive on the matter but I thought it better, first to discuss the question apart from it. 10. It is next argued that there is conduct of Meenakshisundara which indicates that he held the estate as joint property. On this part of the case it is unnecessary to deal with the matter at great length. This question is the subject of the seventh issue and the Subordinate Judge has dealt with it in paragraph 38 of his judgment. It is now said that the Zamindar made his brother Diwan and was treating him on affectionate terms. This is true, but to hold that acts of affection amount to throwing the property into the common stock of the joint family is neither logical nor desirable. The only effect of Courts loosely holding that such results follow would be to make Zamindars treat their relations such as brothers without the smallest spark of affection or kindness. No one desires that anything that the Courts hold should have such consequences. But apart from such considerations it is impossible to say that Meenakshisundara thought that he was holding the Zamindari as joint property of himself and his brother from any item of conduct that has been brought to our notice. 11. Ex. XVI shows that the first defendant was getting some maintenance allowance regularly along with the allowance of the Rajah. I do not think any inference should be drawn from the fact that these two items are put together and not separately. There is no such unmistakable conduct on the part of the zamindar as would indicate that he intended that the zamindari should be regarded as undivided property. 12. I now pass on to the next point which is the subject of the ninth issue namely, whether there was a division of the partible properties. First we have got a draft partition deed in March, 1924 (Ex. H.). This is in tamil and incomplete as it does not state the boundaries and schedules. On the outside there are endorsements by the manager M.S. Subramania Pillai. One endorsement is dated the 30th May. "Enter boundaries and show". Again in June there is another endorsement "why not done yet". Up to this stage the first defendant is a minor and possibly this was the reason why nothing was done. Then we have got a second draft partition deed Ex. H. (i) The month and date are not mentioned but the year is given - 1,100 Andu-showing that it must have been drawn up after August 1924. This document seems to be a copy of Ex. H because in the body the clause that the zamindar should pay Rs. 1000 to the first defendant on the 30th April, 1924, was repeated without any correction. For some reason the document was never registered though a gift deed to a sister drawn up at the same time was executed and registered. (Ex. XVI). However it appears that some of the terms mentioned in Ex. H (1) were carried out. For instance we find that Rs. 1000 was deposited in the name of the first defendant in a local bank. Ex. 1 is the ledger page in the bank's accounts in the name of the first defendant Ex. 14 is the pass book. There are similar ledger pages in favour of the zamindar and Ex. M is his pass book. Later on a sum of Rs. 600 is paid into the account to the credit of the first defendant (Vide Exs. L1 and L4). It is now said that this Rs. 600 represents the first defendant's share of the rent in respect of the Periyakulam Pannai lands. Ex. N. is an account of the same showing that for February, 1925 Rs. 600 was realised as the first defendant's share (Vide also Ex. N.3.). It shows that for £he prior year the first defendant's share was Rs. 506 but there is no such account for the earlier year, supporting this statement; nor could there have been any partition in February, 1924 when the first defendant was a minor. Afterwards the same amount is again debited and a fixed deposit receipt was issued for the whole amount of Rs. 1600 and interest. This fixed deposit afterwards matured and the amount was drawn by the first defendant. Besides the cheque for Rs. 600 he seems to have written another cheque for Rs. 500 but it was not issued. The first defendant himself denies knowledge of any partition. There is no doubt about the genuiness of Ex. H, (1) L and N. Series. He also denies knowledge of the separate leasing out of his lands. The first defendant himself would have been just 18 in 1924 and 1925. Later years, entries in the accounts do not show a separate entry of Rs. 600 for the first defendant lands. All that can be inferred is that possibly Meenakshisundara and his manager conceived the idea of bringing about a partition, got a partition deed drafted, made payments amounting to Rs. 1600 and leased out the lands in different shares. But it does not appear that what they did was known to the first defendant. The first defendant does not seem to be a party to any act of division. Either the Zamindar was unwilling to mention to his younger brother his anxiety for a division or the Zamindar himself had dropped the idea. If they seriously desired to complete it, there was nothing to prevent it. It is said that the draft partition deed (Ex. H1) provides for the building of a separate palace for the first defendant but a foundation stone seems to have been laid for a house so long as January, 1924, when the first defendant was still a minor, and afterwards a house seems to have been built at a cost of Rs. 12,000. Neither the payments of Rs. 1000 and Rs. 600 nor the building of a separate house for him nor the fact that a separate bandy and bullocks were allotted to him (which also appears from the evidence) conclusively shows a partition. These transactions are consistent with gifts made by the zamindar to the first defendant on account of affection. Under these circumstances I am unable to agree with the finding of the Subordinate Judge that there was a completed partition. It appears that the house was actually decreed to the plaintiff. This portion of the decree must any how be erroneous on any footing. If the house was separately built for him and this is one of the items of the division, the first defendant is entitled to the house. If there was division, then also the first defendant is entitled to it by survivorship. It is conceded that this portion of the decree cannot stand (Schedule A-(II) item C). But on my finding that there was no partition the decree of the Lower Court for the whole of the properties in Schedule E as well as the house in Schedule A II item Cand the properties in Schedule I to the written Statement must be vacated and the appeal must be allowed to this extent. 13. It was suggested in one portion of the argument that we might fix the maintenance of the first defendant. No such question was raised in the Court below or in the grounds of appeal though to save litigation the amount might as well be fixed now. We cannot do it without the consent of the respondent. 14. The result is except as to the properties in Schedule E the appeal is dismissed. The parties will pay and receive proportionate costs throughout. No evidence has been adduced regarding items referred to in the memo of objections. It is therefore dismissed with costs. Stone, J. 15. As regards the facts, the question of the partible property, and maintenance I agree with the judgment pronounced by my learned brother and have nothing to add. 16. On the main question debated before us the point is one of importance, is, as to one part, new, and is one of difficulty. I shall endeavour to state what I have to say as briefly as possible. 17. The settlor, Section Kotilinga Sethurayan was, at the time of the Deed of Settlement Ex. D (29th May, 1902) possessed of the impartible zamindari of Urkad. He was the senior member of a joint hindu family which included his brother. He was married and his wife was enceinte. He had a son K. Kotilinga. It was the primary purpose of the settlement to destroy the proprietary rights of K, Kotilinga, who had greatly angered his father by a marriage of which the father disapproved. 18. The wife of the settlor one Thanga Pandichi gave birth to a male child Meenakshisundara. She then died. The settlor married again. That wife gave birth to the first defendant who seized the zemindari on the death of Meenakshisundara. The widow of Meenakshisundara now claims. She succeeds if, Thanga Pandichi's son took the property as self-acquired property disentangled from all joint family rights for he is then the "stock of descent and his brother has no interest (subject to a doubt which is derived, from the Mitakshara when dealing with gifts by father to son of the father's self-acquired property). The plaintiff loses if Thanga Pandichi's son took the property as successor to his father the settlor, or in any way that attracted to the property the joint family rights in that property that were attached to it at the time of the settlement. 19. The matter was presented along two lines; (1) It is said that it is to be inferred from the terms of the settlement and generally that the settlor did not intend to give to Meenakshisundara this estate as self-acquired property; (2) It is said in the alternative that the settlor could not in law give to Meenakshisundara alternatively did not give to Meenakshisundara this estate as self-acquired property but that the estate began as ancestral and remained ancestral while in the hands of Meenakshisundara and after his death passed to the person entitled to succeed to the joint family estates i.e., to the Defendant. 20. As to the settlor's intention I agree with my learned brother and have nothing to add. 21. As to the alternative line of argument I agree but have to express my reasons slightly differently. 22. The exact position occupied in Hindu law by impartible estates of this type the history of this zamindari is reviewed in Ramalakshmi Ammal v. Sivanatha Perumal Sethurayar (1872) 14 M.I.A. 570 has been considered at length by Lord Dunedin in Baijnath Prasad Singh v. Teji Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.) by my learned brother in Annadana Jadaya Gounder v. Konammal (1922) 17 L.W. 107 p. 114 and by Lord Blanesburgh in Collector of Gorakpur v. Ramasunder Mal (1934) 66 M.L.J. 588 : L.R. 61 I.A. 286 : I.L.R. 56 All. 468 (P.C.). From the authorities there cited it is clears that up to Sartaj Kuari v. Deoraj Kaur (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) apart from Deb Burmono v. B. Thakoor (1869) 12 M.I.A. 523 (a case under the Dayabhaga System) the following propositions had been consistently adhered to so far as Madras is concerned; (1) Impartiality does not make the raj separate or self-acquired property, (2) an impartible raj may be self-acquired or may be joint. (3) If the raj be joint succession will go to that class to whom it would go under the ordinary Hindu law but it will then become necessary to choose from that class one who will possess for himself alone. (4) Though the person chosen will possess for himself alone the joint family will have rights, viz., (a) a right to have the heirs, failing direct descendants, chosen from it, and it alone, according to the Mitakshara scheme of succession as modified by the nature of impartiality, (b) a right of maintenance. 23. By Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) an important change was made. That decision has been criticised in India and elsewhere. It is, however, not merely binding on us but, as was stated in Collector of Gorakhpur v. Ramsundar Mal (1934) 66 M.L.J. 588 : L.R. 61 I.A. 286 : I.L.R 56 All. 468 (P.C.) has been in force so long that it cannot now be disturbed. Sartaj's case decided directly that the holder of the zamin can alienate the impartible property to a stranger without necessity and the alienation cannot be challenged by a member of the family. The foundation of that decision appears to be that in an impartible zamin there is no right to partition i.e., the junior members cannot as in the case of an ordinary hindu family, demand a division of property. The inalienability (save for proper cause) of joint family property is founded on the interest in the property possessed at all times by junior members, an interest which crystallizes out into possession on partition, which partition the junior members can always demand. If there is no power to demand a partition this reason for inalienability disappears and therefore in the case of an impartible property the holder of the zamin can alienate at any time. 24. It might, of course, have been thought this inroad upon the normal right to partition created by custom in the case of impartible estates was not merely in the interest of the holder of the zamin but was derived from the very nature of the case which imposed an equal obstacle in the way of the holder of the zamin compelling separation by unilateral act. 25. To make Clear this point it is necessary to observe that the quality of impartibility is derived, at least in this case, from family custom. The custom arose in order to keep in tact, in olden days for military or other reasons, the family estates. Had the general law applied, untrammelled by custom, as the years passed the estates would have been broken up either on succession or by partition. Custom stopped this in the case of succession by selecting one only out of the class entitled, by the general law, all equally to succeed. In the case of partition it was avoided (1) by saying to the zamindar: You may not by giving notice cause a partition for to permit you, who solely enjoy, to give such a notice, and thereby effect a separation, would be to allow you, by your unilateral act, to destroy those rights of succession and of maintenance which the junior members of this joint family have or may hereafter have. (2) by saying to the junior members: You may not demand partition of the holder for it is the custom, that he alone shall enjoy the whole and this custom would be broken if at any moment you could claim a share in the enjoyment. 26. But though the law prevented either side from compelling a separation or a partition, partition or separation was never impossible. Some of the cases where it can happen are stated by my learned brother in Annadana Jadaya Gounder v. Konammal (1922) 17 L.W. 107. Family arrangement is one such case, renunciation is another. 27. Thus though it would appear that the inroad undoubtedly made by the custom of impartibility into the ordinary right to claim severance or partition was made in order to maintain intact on one hand the estate without in any way destroying the rights of the joint family, this restriction on the right to claim partition was made in Satraj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 : L.R. 15 I.A. 51 (P.C.) the premises that led to the conclusion that the zamindar could alienate the whole estate to a stranger. The effect was to empower the holder by his unilateral act to effect a partition not of the family, which remained joint, but of the family property, which became wholly free from the rights hitherto possessed by the joint family (apart from statutory provisions such as Section 39 of the Transfer of Property Act). For those rights did not, as regards maintenance, avail against a stranger second Pittapur case, Raja Rama Rao v. Raja of Pittapur (1918) 35 M.L.J. 392 : L.R. 45 I.A. 148 : I.L.R. 41 Mad. 778 (P.C.) and as regards succession, did not continue effectively to exist, for the family had now no impartible property to which to succeed. For all practical purposes it is said Sartaj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 : L.R. 15 I.A. 51 (P.C.) enables the holder to do everything he could do had he been allowed to give a unilateral notice of separation. That would have enabled him to go away from the family carrying the estates with him; alienation to a stranger does not enable him to go away from the family but it takes all the property away from the family. 28. Subsequent to Sartaj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 : L.R. 15 I.A. 51 (P.C.) and the cases following that case a new chain of cases commences with Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 (P.C.). That decision makes it clear that, despite Satraj Kuari v. Deoraj Kuari (1888) I.L.R. 10 All. 272 : L.R. 15 I.A. 51 (P.C.) the position is now as follows: (1) No partition can be demanded by the junior members, on the other hand, no separation can be compelled by the holder, (2) the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has been definitely and emphatically reaffirmed in Collector of Gorakpur v. Ram Sundar Mal (1934) 66 M.L.J. 588 : L.R. 61 I.A. 286 : I.L.R. 56 All 468 (P.C.). The above, I believe, correctly represent the major points that emerge from the line of cases exhaustively enumerated in Annadhana Jadaya Goundar v. Konammal (1922) 17 L.W. 107 at p. 127 et seq., and in the most recent decision of the Privy Council, Collector of Gorakhpur v. Ram Sundar Mal (1935) I.L.R. 56 A. 468 at p. 484 et seq (P.C.). 29. What is fresh in this case is this; What is the position when the holder alienates not to a stranger but to a member of the joint family? 30. Before I endeavour to resolve that question I will mention a point urged by the appellant-defendant in order to put it on one side. 31. It is said that (without conceding that the settlor here is in the position, as regards the impartible property, of a person holding property as self-acquired) assuming the settlor is in the position of a person holding self-acquired property even then, under the Mitakshara, property given to a son (as here),, would in the hands of the son, pass as ancestral property; for the gift is to the detriment of the family estate. 32. The foundation of, and the answer to this argument will be discovered by turning to Muddungopal Thakoor v. Ram Baksh Pandey (1863) 6 W.R. 71 at 73. Having quoted from the texts the learned Judges there observe: It means no more than that property so acquired is exempt from partition amongst the brethren. 33. That is, in this case had Meenakshisundara had a son or sons it might be a question whether between Meenakshisundara and his son or sons it was ancestral. If so as between them it would not be exempt from partition (impartibility apart). Even that is a matter for doubt. See Lal Ram Singh v. Deputy Commissioner of Partabgarh (1923) 47 M.L.J. 260 : L.R. 50 I.A. 265 : I.L.R. 45 All. 596 at 599 (P.C.). But here the defendant is not the son of Meenakshisundara but a brother. It follows that even accepting Muddungopal Thakoor v. Ram Baksh Pandey (1863) 6 W.R. 71 at 73 the property would under the Mitakshara (impartibility apart) have been exempt from partition as regards the defendant. That is the defendant could not have claimed a partition (impartibility apart) in respect of it, i.e., as against the defendant. Meenakshisundara could have claimed it as self-acquired property not affected by joint family incidents save the incidents attaching to the joint family made up of Meenakshisundara and his sons. 34. Thus the defendant would fail if the impartible property in the hands of the settlor were treated as self-acquired property. A line of authorities was cited to show that it was self-acquired property, e.g. Katama Nachiar v. B.G. Taver (1863) 9 M.I.A. 539 at 588 (P.C.), Baboo Beer Pertab Sahee v. Maharaj Rajendar Pertab Sahee (1867) 12 M.I.A. 1 at 33 (P.C.), Ram Nundun Singh v. Janki Koer (1902) L.R. 29 I.A. 178 : I.L.R. 29 Cal. 828 (P.C.) and Balwant Singh v. Rani Kishori (1898) L.R. 25 I.A. 54 : I.L.R. 20 All. 267 (P.C.). But these are cases where the raj had been confiscated and regranted. The grantee in such a case starts the line afresh, as though there had never been a raj before, whether he is a member of the same family or even the same person as the former holder. See Stree Rajah Yanumala Venkayama v. Sree Rajah Yanumala Boochia Venkondora (1870) 13 M.I.A. 333 at 341 (P.C.). 35. It appears to me that in this case this settlor held this impartible estate not as self-acquired property but as ancestral property subject to the custom attaching impartibility. That left at least two rights in the family which would not have been there had his position been that of a person who holds self-acquired property, viz., the right of the joint family (including the holder's collaterals) to succeed by survivorship and the right of junior members of the joint family to claim maintenance. 36. Because a gift by a father of self-acquired property to a son would shut out of the donee's brother it does not follow that a gift by a Zamindar of an impartible ancestral Zamin to a son shuts out the donee's brother. 37. That result, however, will follow directly if an alienation to a stranger and an alienation to a member of the family stand on the same footing so as to make the property in the hands of the alienee self-acquired property in both cases. 38. As Mr. Sastri pointed out a passage in Baijnath Prasad Singh v. Tej Bali Singh (1921) 40 M.L.J. 387 : L.R. 48 I.A. 195 : I.L.R. 43 All. 228 at 243 (P.C.), beginning with the words "turning next to the second Pittapur case", suggests that a different result would have been arrived at in that case if the claimant had accepted the donee as the father-donor's son, and that he would have had a right to maintenance. If that be so then there would appear to be a difference according as the alienation is to a stranger or to a member of the family. In Protap Chandra Deo v. Jagadish Chandra Deo (1927) L.R. 54 I.A. 289 : 53 M.L.J. 30 : I.L.R. 54 Cal. 955 (P.C.), however the same position was taken up as in the second Pittapur case though there was relationship. 39. It is urged that the problem can be resolved along the following lines; 40. Alienation is a matter of property transfer. The making or non-making of an alienation does not affect the family status, it merely affects the family wealth. If all the property is transferred to a stranger the right to succeed exists but there is nothing to which to succeed. The right to maintenance continues but there is nothing out of which the maintenance can be paid (I am regarding claims against the alien and put aside Section 39 of the Transfer of Property Act). There can be no partition but there can be by alienation a complete divesting of the family of property by alienating to a stranger. If the alienation is not to a stranger, still, as in the case of an alienation to a stranger, the family remains undivided; the rights of maintenance and succession remain unaffected. There is, however a difference arising from the nature of the case. The family has not been divested of its property. One member, the member to whom the property is transferred, has got it. The fact that he and he alone has got it raises no inference that the family has no part in it. This is the common case with impartible property that one man has the sole right of enjoyment. 41. The fact that this settlement would have the effect had certain events occurred, of first alienating 10 a member of the family then alienating to a stranger, then alienating to a member of the family does not it is said affect the matter. The destruction of the rights of the other members of the family is not within the powers of the holder. Satraj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. (P.C.), decides he can alienate. If he alienates to a stranger then from the very nature of the case, he removes from the family the property the existence of which in the family, makes the rights of succession and maintenance of some value to the family. He does not thereby destroy the right. The right lives on. The property to which it attaches goes. It goes because the right is a right of succession, and a right to require a relative to maintain, i.e., right dependent on relationship. If the relations have got no property it is a valueless right but still a right. It does not exist, it never did exist, against a stranger. If the appropriate relation has got the property then the right which was never destroyed and could not be destroyed by the holder becomes valuable once more because there is something to succeed to. 42. The answer to the above is, I think, to be found in the question; "To whom is the person claiming succession claiming to succeed. The alienor or the alienee?" When the property is alienated to a stranger the right of succession is lost because the succession is to the alienor. It clearly can make no difference if the alienation is to a member of the family. The right of succession is in that case also a right to succeed to the ali enor, not to the alienee. But the alianor has divested himself. There is nothing to succeed to. Thus whether the alienation is to a stranger or to a member of the family a person claiming a right to succeed to the alienor is claiming a right of no value once it is established (a) that the alienor had a right to alienate the property and (b) he did in fact alienate. 43. That the settlor here intended to alienate to Meenakshisundara so that Meenakshisundarsm held the property as the new stock of descent I have no doubt for the reasons given by my learned brother; that he had the power so to alienate I regard as settled by Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All 272 (P.C.); that the property in Meenakshisundaram's hands became self-acquired and not ancestral as against collaterals - whatever may be the position as regards sons - I think follows from the reasons above given when considering Muddungopal Thakoor v. Ram Baksh Pandey (1868) 6 W.R. 71 at 73. 44. On the other hand, cases like Konammal v. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 at 197 (P.C.) do not really assist, Those are cases where the family succession is changed yet the right of the family remains. It is said that that is what has occurred here and, by parity of reasoning, here also the family rights should remain attached to the estate. But if Konammal v. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 at 197 (P.C.) or Naraganti Achamagaru v. Nayanivaru (1881) I.L.R. 4 Mad. 250, a similar case, is examined it will be found that the change is not due to an alienation effected by the holder but by an arrangement come to between the members of the family affected being of sound mind and adult. In such cases there is no attempt being made by the holder to defeat the family by his unilateral act; there is merely an alteration effected within the family by bilateral act, the holder on the one side, and the junior members on the other hand agreeing. In Konammal v. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 at 197 (P.C.) the Palaiyam (or Raj) was transferred by the Poligar (or Raj) to his second son. This was in accordance with the arrangement come to between the Poligar and adult members of his family. Its purpose was to pass over a son of weak intellect and his son a child of tender years. The difference betweeen that case and this is that there the other members of the family agreed to the alienation of the estate from the Poligar to his second son. It was, by consent of the family, a substitution of one Poligar by another. The family incidents remained throughout attached. But where ths property is alienated under the power declared to be possessed by the holder by Sartaj Kuari v. Deoraj Kuarii does not the alienation break the connection between property and family so that the alienee, though in the family, as alienee is in the position of a stranger receiving the property as self-acquired property to which the family rights of other members of the family can no longer attach? 45. Again cases like Vadrevu Ranganayakamma v. Vadrevu Bulli Ratnayya (1879) 5 C.L.R. 439, Sivagnana Tevar v. Periasami (1878) 5 I.A. 61 : 1 Mad. 312 (P.C.), Tara Kumari v. Chaturbhuj Narayan Singh (1915) 29 M.L.J. 371 : L.R. 42 I.A. 192 : I.L.R. 42 Cal. 1179 (P.C.) and Gurusami Pandiyan v. Pandia Chinna Thambiar (1921) 39 M.L.J. 529 : I.L.R. 44 Mad. 1, being cases where the family by family agreement or otherwise have become divided are not in point. No one doubts that in such cases the joint family has been broken up. In such cases the old joint family incidents including succession, cease. The result in such cases is, that, as in Vadrevu Ranganayakamma v. Vadrevu Bulli Ramayya (1879) 5 C.L.R. 439 a woman, the widow of the last Zamindar might succeed. 46. In Shibaprasad Singh v. Prayag Kumaree Debee (1931) 63 M.L.J. 196 : L.R. 59 I.A. 331 : I.L.R. 59 Cal. 1399 at 1413 (P.C.) the Privy Council observe: To this extent (i.e., as regards partition, alienability, maintena nee) the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains...To this extent the estate still retains its character of joint family property...Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right, which is capable of being renounced and surrendered. It follows that in order to establish that a family governed by the Mitakshara, in which there is an ancestral imp artible estate, has ceased to be joint, it is necessary to prove an intention express or impfeed on the part of the junior members of the family to renounce their right of succession to the estate. 47. In that case, it will be observed that the family was assumed still to have an ancestral impartible estate. That is the whole point here. This is not a case where the family has become divided. In my opinion in the case of impartible estates partition cannot be brought about by alienation by the holder. This is a case where the property has been alienated. It is a case where despite the alienation the defendant claims as successor not of the alienee basing his claim on relationship, but of the alienor, basing his claim on succession as a member of a joint family. It appears to me however, that even if the defendant established (1) the fact that the family remained joint, (2) the right of the family to succeed, (3) the fact that the last holder on behalf of the family was the settlor, (4) the conclusion that the defendant had the right therefor to succeed - he would fail. He would fail because the settlor has parted with the property and there is nothing left to succeed to. For the defendant to succeed he must show a right to succeed to Meenakshisundara and this in my opinion he has failed to. Bombay High Court Tiruneelakantam Servai And ... vs B. Raja Rajeswara Sethupathi ... on 6 January, 1922 Equivalent citations: (1923) ILR 46 Bom 177 Author: C Trotter Bench: W S Schwabe, Kt., K.C., C Trotter, K Sastri JUDGMENT Walter Salis Schwabe, Kt., K.C., C.J. 1. This is a claim by the Raja of Ramnad against the farmers or tenants of villages in that zamindari to recover from them the money value of certain annual payments received by them from the ryots of those villages. In 1894 two cowles were executed by the then Raja in favour of those farmers. Before the cowles the Raja or Zamindar received 48 per cent of the total produce, the ryots or actual cultivators of the land keeping the other 52 per cent. Of that 48 per cent one-fourth or 12 per cent of total was received by the Raja for certain purposes---3 per cent for charities and 9 per cent for the payment of village officers whom the Raja was liable to pay. By the cowles, the Raja let for a term of years all his interest in the villages to the farmers. The villages are defined by boundaries and most of the land in them was in the occupation of ryots, but there were offices, buildings, tanks, trees and possibly waste land and jungle, which were in the occupation of the Raja himself. Therefore, what was let was his interest in the lands in the occupation of the ryots in respect of which he received the 48 per cent melvaram and such buildings, lands, trees, etc., as were in his own occupation. There was an obligation on the ¦part of the farmers to do certain repairs. After the cowles the farmers, in fact, received the whole 48 per cent melvaram and paid the village officers in kind. They agreed by the cowles to pay to the Zamindar in addition, to the rent reserved the 3 per cent for the charities and an amount which they collected for road cess for which the Zamindar remained liable as between him and the Government though between him and the fanners they took over this obligation. 2. John Wallis, C.J., with whose judgment I entirely agree, holds that the effect of the cowles was that the farmers took over with, the village and the waram the obligation to pay thereout what were, in fact, charges on that waram, that is, payments to be made to the village officers out of the waram. Sadasiva Ayyar, J., field that the obligation was taken over by the farmers by custom. This is probably also correct, but, if there is, as I hold, an implied term as found by Wallis, C.J., it is unnecessary to rely upon the custom. At a later date, by the Madras Act II of 1894, the payment of these officers in kind was abolished, and it would follow, if the matter rested there, that the farmers would be freed from liability to make these payments but could keep that part of the melwaram which was leased to them in order that they could make these payments, that is the 9 per cent. It is argued that they were receiving and paying away the 9 per cent to the village officers as agents of, or trustees for, the Raja. I am unable to accept this view or to say that there was an implication of the term in the cowle that the farmers should collect 9 per cent on behalf of the Raja and that, if at any time the whole or any part were not required for the payment of the village officers, they should account to him for any unused amounts. Now, it is a well established rule that a term will only be implied when the Court is driven to the conclusion that the parties must necessarily have intended that stipulation. This is generally known as the rule in The Moorcock (1889) 14 P.D., 64., which was followed and clearly enunciated in Hamlyn & Co. v. Wood & Co. (1891) 2 Q.B. 488..I can find no such necessity, for the cowle is equally consistent with the farmers taking over the whole waram and taking the risk of what they might have to pay to these village servants. It would be a perfectly intelligible contract and this, in my view, is the proper interpretation of this contract. Acting under the statute in question, the Government which had taken over that liability to pay the village servants and relieved the Raja from that liability increased the peshkash payable by the Raja with the result that, but for a further provision in the statute in a case like this, the Raja would have to pay the extra peshkash, whereas the farmers would receive and keep what was still being received from, the ryots to provide for the payment of the village officers, that is, the 9 per cent. This would be most inequitable and hence Section 27(4) of the Act provides as follows: "If, in any case, the rent payable to a proprietor in respect of any land has been fixed under an agreement subsisting on the date of this Act coming into force, to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, it shall be lawful for the proprietor or tenant to apply to the Collector for sanction to increase the said rent or to demand its reduction; and the Collector shall, upon receipt of such application and upon satisfactory proof of the justice of the claim, grant such sanction and increase or reduce the rent to the amount at which it would have been fixed had no such agreement been entered into." This applies to this case unless it can be successfully contended that the farmers in question are not tenants within the meaning of that section, as was held by Sadasiva Ayyar, J., and was also held in Rajam Ayyar v. Raja Rajeswara Muthuramalingam Sethupathi S.A. No. 510. of 1918 (unreported). by Oldfield and Krishnan, JJ. I cannot attach importance to the latter case---we do not know what was argued or whether this question was necessary for the decision in that case. I do not agree with Sadasiva Ayyar, J., on this point or with that other judgment, if it so held. In my view, these farmers were tenants in the proper ordinary sense of the word for the reasons I have pointed out above. Further, I am quite clear that they are tenants within the meaning of this section for on any other construction of this section, persons in the position of these farmers who were many and known to be many at the time when the Act was passed, would have been left in possession of the produce of the land to which morally they had no sort of right, and I do not think I am driven to such an absurd construction. I do not attach any importance to the fact that it has been held under another or other statutes, such as the Madras Rent Recovery Act, that "farmers"---I use the word in the sense of persona farming the rents---are not "tenants" within the meaning of certain sections of those Acts. It follows that, in my judgment, the Raja is entitled to apply under that section to the proper authority to have the rent payable by the farmers adjusted in accordance with the terms of that section, namely, by increasing the rent to the amount at which it would have been fixed had no agreement been entered into providing that the farmers should pay the village officers. As far as I can see, the result will be that the Raja will obtain all that he is asking for in this action. But in my view, this action was entirely misconceived and accordingly the appeal must be allowed with costs and the decree of the Subordinate Judge will be modified by disallowing the value of the manibham and swatantram with interest. The parties will pay and receive proportionate costs both in the Subordinate Judge's Court and before the Division Bench. 3. I agree with the observations of Coutts Teotter, J., as regards the decision in Nallayappa Pillian v. Ambalavana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465. Coutts Trotter, J. 4. I entirely agree, and I only desire to add two observations of my own. The first is this: It seems to me that, where a Court feels itself driven, as we do in this case, to make an implication in a contract which, is not there in terms, it should endeavour strictly to limit that implication to what is absolutely necessary to carry out what is believed to be the intention of the parties. In this case that appears to be effected by holding that what was intended was that the defendant undertook, as a personal covenant, the duty of discharging the claims of the village officers and of indemnifying the Zamindar against those claims. That seems to me to carry out sufficiently what we hold the parties to have meant, and I decline to go further and imply such conceptions as that of trusteeship or agency into such a matter. 5. The other observation that I desire to make is with regard to Section 27 (4) of the Madras Act II of 1894. I think it is most important in this country to construe the terms of an Act taken from the English Law strictly in relation to the immediate context and to decline to be guided by evidence as to their meaning or judicial interpretations of them when they occur in another context or in other statutes. I look at Section 27 (4) of this Act and I find these words:---If the rent payable to a proprietor in respect of any land has been fixed under an agreement to the effect that any portion of the remuneration of the village officers shall be borne by the tenant or the proprietor, as the case may be, then certain consequences shall follow. I think that, for the purposes of that section, it is abundantly clear that the word "tenant" must be so construed as to mean a person in the nature of those defendants whose case we are considering here. It seems to me that once you have got it that the Zamindar here, who is clearly the proprietor within the meaning of this statute, sues for payment T of rent---and, in fact, the first branch of Mr. Ranga Achariyar's argument was to insist upon it that what was covenanted for here was rent and nothing else---and if you look at this clause and nothing else, it is inevitable t to conclude that the person described as a "tenant" is the person who pays rent to the proprietor and that the one is the mere correlative of the other. Therefore, I think that there is nothing to prevent our holding that the defendant here is a tenant within the meaning of that statute, and I find nothing in Nallayappa Pillian v. Ambalanana Pandara Sannadhi (1904) I.L.R. 27 Mad. 465., to alter that opinion, would also point out that that case itself very wisely, if I may respectfully say so, proceeded on very much the same lines as I have indicated, namely, of construing the words in strict relation to the exact context and the portion of the statute in which they occur. I only desire to add this that I am not prepared to hold that the learned Judges, who decided Subbaraya v. Srinivasa (1884) I.L.R. 7 Mad. 580, 582 and Baskarasami v. Sivasami (1885) I.L.R. 8 Mad. 196., were wrong. Kumaraswami Sastri, J. 6. If the cowles can be construed to be assignments by the Zamindar of the 48 shares in the produce which were allotted to the Raja's share at the division of the produce subject to the obligation of the transferee to meet the obligations to discharge which 12 out of the 48 shares were liable and an indemnity in favour of the Zamindar, I agree with my Lord and my brother Coutts Trotter, J., that the remedy of the Zamindar is to proceed under Section 27 of the Proprietary Estates Village Service Act (Act II of 1894). Having regard to the terms of the cowles which are not mere transfers of the melvaram without any transfer of interest in the lands but which transfer in addition the waste forest and other lands in which the Zamindar had a proprietary interest and which also require certain services to be rendered, the cowledar will be a tenant in the ordinary acceptation of the terms. This distinguishes the case from the decision of Old field and Krishnan, JJ., in S.A. No. 510 of 1918, Raj am, Ayyar v. Raja Rajeswara Muthuramalinga Sethupathi S.A. No. 510 of 1918 (unreported). 7. He will be a person liable to pay rent to the Zamindar which has been fixed with reference to an implied agreement to the effect that he shall pay the remuneration to the village officers and Clause 4 of Section 27 will in terms apply to him. 8. I find it, however, difficult to hold that there was any transfer to the cowledar of the 12 shares out of the 48. 9. The immemorial practice in the zamindari was for the produce being brought to the threshing floor for division between the tenants and the Zamindar. The tenants took 52 shares and left 48 shares for the Zamindar who had to remunerate the village servants and to contribute towards certain charities (Mahamais). So Car as the remuneration of the village munsif, karnam and watchman were concerned it was a statutory duty. What, the Zamindar did was to set apart 1 share of the 48 left after the tenants took their share to the Dharma Mahamai, 2 shares to the Jari Mahamai and 9 shares for the remuneration of the village officers. The village officers had the right to receive their shares at the threshing floor at the time of the division. They had the right of suit against the Zamindar if they were not paid and could recover their share of the produce both personally and against the estate of the Zamindar. As regards the charities the Zamindar was bound to account and could be proceeded against for breach of trust if he did not set, apart and hand over the share due to the charities. It is clear that at the date of the cowles the Zamindar had no interest in the 12 shares which had, by long custom, been set apart for the discharge of obligations which were perfectly well known to everybody and could be enforced against the Zamindar. These obligations could not be got rid of by the Zamindar by assignment of the melvaram to somebody else, and he remains liable in spite of the assignment. An assignment of the 12 shares would not benefit the cowledar while it would not place the Zamindar in any better position than he would have been if there was no assignment. At the date of the cowle the position was this. As soon as the tenants took away their 52 shares, 36 shares were set apart for the Zamindar, 3 shares for the charities and 9 shares for the village officers, each party taking what was due. The terms of the cowle show, in my opinion, that what the Zamindar did was to transfer to the cowledar the 36 shares due to him and as to which he had absolute power of disposal and to ask the cowledar to collect and pay over to him the 3 shares which were due for the charities and make the various payments to be made to the village officers out of the shares. The terms of the cowles in the two appeals are similar and I shall take one of them by way of illustration. 10. The cowle, Exhibit A in Appeal No. 159, begins by stating that the sarasari for each fasli on a ten years' average was Rs. 982-10-1 and it fixes the rent at Rs. 425-3-1 on this basis. It is found by the Subordinate Judge and not disputed before us that Rs. 982-10-1 represents the amount calculated on the 36 shares which belonged to the Zamindar and excluded the 12 shares which were being set apart for the charities and payment to the village officials so that it is clear that the whole basis of the transaction was on the footing that what was being transferred was the net share of the Zamindar and not the whole of the 48 shares that remain after the tenants took their shares. The deed proceeds to stipulate that the cowledar should " along with the said poruppu (rent) amount pay the road cess, Jari Mahamai, Dharma Mahamai, etc., amount fixed upon the respective accounts." It is not disputed that these payments were to be made and were, in fact, being made during all these years to the Zamindar and not to the Government or the charities direct. No adequate reason is given as to why the Zamindar should require the road cess and charity amounts to be paid over to him if the 48 shares were assigned with the obligation to meet the liabilities direct. It is suggested that he wanted the charity amounts to be paid over to him direct in order that he might misappropriate a portion of what would otherwise go to the charities. It is extremely unlikely that a man who was assigning a village yielding more than double of what he required the transferee to pay him as rent would stipulate for the delivery to him of 3 per cent of the income in order that he might have the opportunity of misappropriating a small portion of that amount. The absurdity of it is patient. The reason why the Zamindar wanted these sums to be paid back to him is because he assigned over only the net amount after deducting the 12 shares and the 12 shares will have to be distributed between the charities and servants, neither the Zamindar nor the transferee having any beneficial interest in it. The village servants having the right to take their share out of the 9 shares of the produce set apart for them there was my necessity for the share being paid to the Zamindar and again paid over by him to the servants, convenience obviously suggesting that the cowledar should deliver it direct to the servants. As regards the Dharma Mahamai and Jari Mahamai which represented the 3 shares, as the practice was for the Zamindar to take 3 shares for payment over to the charities he required the cowledar to collect and pay over the 3 shares to him. 11. It is significant that the cowles nowhere state that the cowledar should discharge the obligations to third parties which the Raja was under an obligation to discharge. It simply states that the cowledar should pay over to the Raja the road cess and 3 shares allotted to the charities. It says nothing about the 9 shares payable to the village officers, a fact which is unlikely if there was a transfer of the 9 shares to the cowledar under an agreement of indemnity should the cowledar not pay the village servants. I agree with the following observations of Sadasiva Ayyar, J., whose knowledge of the land laws and tenures of this Presidency is unique, " both the lessee and the Raja knew and contemplated that the lessee will pay it according to custom to the village officers direct instead of through the Raja. The Raja's direct receipt of it himself at the granary and paying it over at once to his village officers would have resulted in a mere circumlocution and unnecessary trouble." I also agree with him in thinking that the 12 per cent was received by the cowledar as agent of the Raja and not by virtue of his right as assignee of the shares with an obligation to discharge the liability of the Raja to pay 3 per cent to charities and 9 per cent to the village officials. 12. I would confirm the decrees of the Subordinate Judge and dismiss the Letters Patent Appeals with costs. Madras High Court Musafkanni Ravuthar And Ors. vs Doraisingam And Ors. on 18 October, 1926 Equivalent citations: AIR 1927 Mad 931 Author: Ramesam JUDGMENT Ramesam, J. 1. The finding of the Subordinate Judge is accepted. The finding is to the effect that the wet lands are divided between the several sharers and each sharer is in enjoyment of his specific share. As to the dry lands, half of them are enjoyed by the sharers as tenants-in-common by being held through permanent lessees and the other half similarly through occupancy tenants. The sharers are not in physical possession of the dry lands and practically there is little chance of their getting into physical possession. They have to collect the rent and divide it according to their respective shares. It is also clear that at the time of the inam register, Ex. IV, that is, in 1864, all the lands were undivided and were being held jointly. The poruppu for the chatram portion must have been paid jointly by all the sharers though it was separated from the dues on the dharmsanam portion. The question that now arises is what is the principle of law applicable to the liabilities of the shareholders? 2. We start with the fact that the original agraharamdars were all Brahmins and there is none now among them and even in 1864 most of them, perhaps all relating to the chatram portion, were alienees. It is clear now that they are all alienees. The liability of the assignee of a lessee is primarily by reason of the privity of estates: see Monica Kitheria v. Subraya Hebbera [1907] 30 Mad. 410 Each sharer is therefore liable at least to the extent of his share. The further question is whether they are jointly liable and not merely severally liable for their respective shares. No doubt, in 1861, the payments must have been made jointly. But at that time they were tenants-in-common and were in joint possession and have, as will be shown lower down, been jointly liable for the poruppu. On this ground, they must have paid the poruppu been jointly, but since then the wet lands have been divided into separate shares and there is no joint possession. The petitioner's vakil, Mr. Sesha Iyengar, contends that even as to the dry lands they are not jointly and severally liable. He relies on certain observations in Venkatasubramniam v. Rajah of Venkatagiri [1920] 11 M. L. W. 523 specially the observations of Krishnan, J. The point was not actually decided in that case. The contention based on the fact that some of the defendants were assignees was not raised there in the first Court and in the High Court the decision proceeded on the assumption that all the defendants were the heirs of the original lessees. The observations of Krishnan, J., in favour of the assignees were therefore obiter dicta. When we examine the cases referred to, none of them is quite conclusive, though the inclination in these cases is in favour of the assignees. In the first English case Gamon v. Vernon [1679] 2 Lev. 231 the suit itself was for the proportionate share. In the other case Stevenson v. Lambard [1802] 2 East 575 the defendant was evicted from a certain share by the paramount title of a prior lessee and it was held that the rent may be apportioned. Both these two cases were discussed at length by Green, J., in United Diaries v. Public Trustee [1923] 1 K. B. 469 He is of opinion that the matter was not really decided by the English authorities. He is inclined to agree with the opinion of Kenny, J., in Dooner v. Odium [1914] 2 I. R. 441 It is also the trend of opinion of the text writers: see Foa on Landlord and Tenant. 469. In Jagan Mohan Sarkar v. Brojendera Kumar Chakravarthi A. I. R. 1925 Cal. 1056 B. B. Ghose, J., seems to take the same view. The decision in Kunhi Sou v. Molluli Chathu [1915] 38 Mad. 86 deals with apportionment in the matter of time and it is not clear that the Judges were discussing the case of tenants-in-common in joint possession. I adopt the view of Green, J., in United Diaries v. Public Trustee [1923] 1 K. B. 469 and that of Kenny, J., that is, if the assignee of a share holds his share in 'physical severalty he is separately liable for his share and if they are jointly in possession as tenants-in-common of the whole (even if such possession is through sub-tenants) they will be jointly liable though it will be open to them to cut down their liability by division. The acceptance of joint liability in 1864 is attributable to this principle and would not prevent the assignee-tenants from cutting down their liability by a later division. 3. Mr. Kutti Krishna Menon for the respondents contends that as a specially well-known incident of the agraharam tenure in Southern India all are jointly and severally liable even if there is division. He referred to several cases such as Zamindar of Ramnad v. Ramamany Ammal [1879] 2 Mad. 234 Sundaram v. Sankara [1886] 9 Mad. 334 and Ellaiya v. Collector of Salem 3 M. H. C. R. 59. In some of these cases it is not clear that the tenants were assignees. In none of them the point arose directly and the point seems to have been assumed or conceded without any argument. It cannot be said by reason of cases of this kind that a customary incident has been established in Southern India modifying the general principle of law. I must therefore hold that each defendant is only separately liable in respect of the wet lands in his possession. The shares of the defendants are already known. As to the dry lands they are jointly liable. The only question that has to be determined now is: What is the proportion of the poruppu payable on the wet lands and on the dry lands? 4. The materials on record are not enough to determine this. The Subordinate Judge will now find on the question, how is the poruppu to be proportionately distributed between wet lands and dry lands? He must do this with reference to the assessment of the wet and dry lands and their market value. When he determines this he will then divide the assessment of the wet lands between all the sharers for the three faslis in suit. He will notice in the written statement of the defendants that the shares of sharers Nos. 1 to 8, 10, 12, 13 and 15 are the same for all the three faslis and the proportions differ for the three faslis only in respect of sharers 11, 14 and 16. He will consider then the several receipts filed in the case by the defendants and allow the defendants to appropriate the payments under these receipts as they like for the dry or wet portion in each man's share and ascertain the balance due by each defendant for each fasli. A tabular statement for each of the three faslis for all the sharers would be convenient. 5. He will then pass decree accordingly for the respective amounts against the several defendants. The suit will be remanded for disposal according to law with reference to the above directions. 6. In the High Court, each party will bear his own costs. In the Court below the plaintiff will get from each defendant proportionate costs with reference to the decree he obtains against that defendant. But the plaintiff need not pay any costs to any defendant. Reilly, J. 7. It is admitted that the village with which this suit is concerned has been held under the local Rajh or zamindar for a very long time in 21 shares. It appears from Ex. IV, which contains a descriptive report of the village made by the Inam Commissioner and an extract from the Government inam register of 1864, that 6 of these shares were granted as dharmasanam on a favourable rent or poruppu to some Brahmins by Mahabalivan Raja at an unknown date and that the remaining 18 shares were granted in 1794 by Marudappa Servakaran to certain persons on poruppu in connexion with the endowment of a chatram at Chudiyur; whether the profits of the 18 shares were to be the endowment of the chatram, or only the poruppu was to be the endowment is not clear. But it appears that about 1835, the Zamindar of Sivaganga, the plaintiff's predecessor, became the trustee of the chatram, and from that time at any rate the poruppu of the 18 shares was treated as the endowment. The chatram part of the village is stated in Ex. IV to be distinct from the dharmasanam part. This suit is concerned only with the 18 shares of the chatram part, and the plaintiff sues as trustees of the chatram for the recovery of the balance of poruppu for 3 faslis. The defendants are the present holders of the 18 shares. The plaintiff contends that the defendants are jointly and severally liable for the whole poruppu on the 18 shares. The defendants contend that each of them is liable only for the poruppu on the share or shares held by him. 8. From Ex. IV it appears that the 18 shares were equal but that the land covered by them was not then divided. There is also a remark in Ex.IV: poruppu is paid on the number of vrithies equally and permanently. 9. But that remark appears to be made with reference to the two divisions of shares, viz., 6 dharmasanam shares and 18 chatram shares, and it will be noticed that the area of wet and dry land granted as dharmasanam is exactly 1/3 in each case of the area granted to the chatram. I do not agree with Mr. Sesha Iyengar who appears for the defendants that the remark means that poruppu was being paid to the zamindar on each of the 18 shares individually. I understand I it to mean that the poruppu was fixed permanently and was paid proportionately on the 6 dharmasanam shares and the 18 chatram shares. Ex. IV further shows that at its date the chatram 3/4 of the village to which the 18 shares relate was in the possession of eight persons, to whom the 18 shares had passed from the original grantees or their successors by sale. The defendants are the assignees or heirs of those nine persons. D. W. 1, the only witness examined for the defendants, states that the shares of those nine persons are not shown in the inam register because they were "undivided" by which he can only mean that the land held by them was undivided, as some of them were Hindus and other Mahomedans. In Ex. IV doubt is thrown upon the right of the original grantees or their successors to sell the 18 shares; but there is no doubt that it was by purchase that the nine persons acquired the 18 shares which they held in different proportions. In these circumstances it is clear that the nine persons must have held the land covered by the 18 shares as tenants-in-common. That being so, I see no reason to doubt that they were jointly and severally liable for the whole poruppu on those shares. It is not suggested by the defendants that the nine persons were trespassers. On the contrary the defendant's case is that those nine persons were the lawful assignees of the original grantees, who held on a perpetual lease subject to a covenant to pay the favourable rent or poruppu. By the assignments privity of estate between the nine persons and zamindar as the trustee, to whom the poruppu had to be paid, had been established. As their tenancy-in-common ga e each of them an interest in every part of the of the village covered by the 18 shares the privity of estate between each of them and the zamindar must have extended to the whole of that area. If that view is correct, then the liability of each of them for the poruppu must have been equally extensive. It was only by privity of estate that they were liable to the zamindar for the poruppu, The liability of the assignee of a leasehold by reason of privity of estate to payment to the landlord arises with the assignment to him and ceases with the re-assignment by him and the liability and the privity extend to the whole of the premises covered by the assignment and no further. On principle the assignee of a lessee-tenant-in-common must be liable for the whole of the rent of the property to which his tenancy-in-common relates. In United Diaries v. Public Trustee [1923] 1 K. B. 469 Green, J, stated that he was inclined to this view, and he quotes the opinion of Kenny, J. in Donner v. Odium to the same effect. In Jagan Mohan Sarkar v. Brojendra Kumar Ghakravarthi A. I. R. 1925 Cal. 1056 the majority of a Bench of five Judges adopted this view as a step towards their decision in that case; one of the dissenting Judges explicitly agreed with them on this point, and the other learned judge contented himself with resting on a previous judgment of his own in which this point was not discussed. 10. On the case being sent back to him the Subordinate Judge has now found that the wet land in the chatram 3/4 of the village has been divided among the defendants and that they are in possession of separate plots of it, but that, so far as they are conferned, the dry land in the chatram part of the village is undivided. The Subordinate Judge has not found when the division of the wet land was made; but it is clear that it was done after the date of Ex. IV. The finding is not disputed before us; nor is it disputed that the division of the wet land was made by the defendants or their predecessor-in-title without reference to the zamindar and before the faslis to which this suit relates. When the defendants or their predecessors-in-title divided the wet land among themselves and took separate possession of separate plots according to the number of their shares, there was in effect reassignment to each sharers among them by all the other sharers of their interests in the land allotted to him. By that re-assignment the privity of estate with the zamindar of each sharer in respect of the whole wet land in the chatram 3/4 of the village other than that allotted to him came to an end and a new exclusive privity of estate between him and the zamindar arose in respect of the separate wet land allotted to him. From that moment his liability as a tenant-in-common to pay rent for the whole wet land ceased, and he became liable, so far as the wet land was concerned, only for the rent on the land allotted to him at the division. Had the defendants been heirs of original lessee-tenant-in-common they could not of course have shuffled off their joint and several liability for the whole rent in this way by division among themselves without their lessor's consent. But, as things stand, in respect of wet land for the faslis in question the zamindar is entitled to get from each of the defendants only the rent due on the particular holding. For the dry land on the other hand the defendants as tenants-in-common are still jointly and severally liable for the whole rent. The fact that no part of the dry land is in the actual possession of any of them, but that it is held under them by sub-tenants some of whom have occupancy right and others have a perpetual sub-lease, does not, as Mr. Sesha Iyengar has suggested, in any way affect the position of the defendants towards the zamindar as tenants-in-common of the whole of the dry land. 11. It should not be difficult now for the Subordinate Judge to dispose of the suit if he can determine how much of the whole poruppu is attributable to the wet land and how much to the dry land. If, as appears probably from the defendants' contentions, the separate plots of wet land held by them are proportionate in value to the shares or fractions of shares out of the 18 held by each defendant, the apportionment of the poruppu on the wet land among the defendants will be a simple matter of arithmetic. It is probable that each defendant will wish to appropriate what he has paid already, if anything, first towards what is due on his separate wet land. If so, whatever any defendant has paid in excess of the amount due on his separate wet land will go towards the amount due from all the defendants for the dry land. For any balance due on wet land the Subordinate Judge will make a decree against the defendants concerned individually, and for any balance due on the dry land he will make a decree against all the defendants. 12. I agree with the proposal of my learned brother that the suit should be remanded to the Subordinate Judge for fresh disposal on these principles and also with his proposal in respect of costs. Mosafkanni Ravuthar And Ors. vs Doraisami Alias Gauri Vallabha ... on 18 October, 1926 Equivalent citations: (1928) 54 MLJ 30 Author: Ramesam ORDER Ramesam, J. 1. The finding of the Subordinate Judge is accepted. The finding is to the effect that the wet lands are divided between the several sharers and each sharer is in enjoyment of his specific share. As to the dry lands, half of them are enjoyed by the sharers as tenants-in-common by being held through permanent lessees and the other half similarly through occupancy tenants. The sharers are not in physical possession of the dry lands and practically there is little chance of their getting into physical possession. They have to collect the rent and divide it according to their respective shares. It is also clear that at the time of the inam register, Ex. IV, that is in 1864, all the lands were undivided and were being held jointly. The poruppu for the Chatram portion must have been paid jointly by all the sharers though it was separated from that due on the Dharmasanam portion. The question that now arises is, what is the principle of law applicable to the liabilities of the shareholders? 2. We start with the fact that the original Agraharamdars were all Brahmins and there is none now among them and even in 1864 most of them, perhaps all relating to the Chatram portion, were alienees. It is clear now that they are all alienees. The liability of the assignee of a lessee is primarily by reason of the privity of estate. See Monica Kitheria Saldanha v. Subbraya Hebbera (1907) ILR 30 M 410 : 17 MLJ 258. Each sharer is therefore liable at least to the extent of his share. The further question is whether they are jointly liable and not merely severally liable for their respective shares. "No doubt, in 1864, the payments must have been made jointly. But at that time they were tenants-in-common and were in joint possession and have, as will be shown lower down, been jointly liable for the poruppu. Oh this ground they must have paid the poruppu jointly, but since then the wet lands have been divided into separate shares and there is no joint possession. The petitioners' vakil, Mr. Sesha Aiyangar, contends that even as to the dry lands they are not jointly and severally liable. He relies on certain observations in Venkatasubramaniyam v. Raja of Venkatagiri (1919) 11 LW 523, specially the observations of Krishnan, J. The point was not actually decided in that case. The contention based on the fact that some of the defendants were assignees was not raised there in the first Court and in the High Court the decision proceeded on the assumption that all the defendants were the heirs of the original lessees. The observations of Krishnan, J., in favour of the assignees were therefore obiter dicta, When we examine the cases referred to, none, of them is quite conclusive though the inclination in these cases is in favour of the assignees. In the first English case, Gamon v. Vernon (1679) 2 Lev 231 : 83 ER 532, the suit itself was for the proportionate share. In the other case, Stevenson v. Lombard (1802) 2 East. 575 : 102 ER 490, the defendant was evicted from a certain share by the paramount title of a prior lessee and it was held that the rent may be apportioned. Both these two cases were discussed at length by Greer, J., in United Dairies v. Public Trustee (1923) IKB 469. He is of opinion that the matter was not really decided by the English authorities. He is inclined to agree with the opinion of Kenny, J., in Dooner v. Odium (1914) 2 Ir. R 411 at 415. It is also the trend of opinion of the text-writers. See Foa on 'Landlord and Tenant', p. 469. In Jagam Mohan Sarkar v. Brojendra Kumar Chakravarthi (1925) ILR 53 C 197 (FB), B. B. Ghose, J., seems to take the same view. The decision in Kunhi Sou v. Mulloli Chathu (1912) ILR 38 M 86 : 23 MLJ 695 deals with apportionment in the matter of time and it is not clear that the Judges were discussing the case of tenants-in-common in joint possession. I adopt the view of Greer, J., in United Dairies v. Public Trustee (1923) IKB 469 and that of Kenny, J., that is, if the assignee of a share holds his share in physical severalty he is separately liable for his share and if they are jointly in possession as tenants-in-common of the whole (even if such possession is through sub-tenants) they will be jointly liable though it will be open to them to cut down their liability by division. The acceptance of joint liability in 1864 is attributable to this principle and would not prevent the assignees tenants from cutting down their liability by a later division. 3. Mr. Kuttikrishna Menon for the respondents contends that as a specially well-known incident of the agraharam tenure in Southern India all are jointly and severally liable even if there is division. He referred to several cases such as Zamin dar of Ramnad v. Ramamany Ammal (1880) ILR 2 M 234, Sundaram v. Sankara (1886) ILR 9 M 334) and Ellaiya v. Collector of Salem (1866) 3 MHCR 59 (62). In some of these cases it is not clear that the tenants were assignees. In none of them the point arose directly and the point seems to have been assumed or conceded without any argument. It cannot be said by reason of cases of this kind that a customary incident has been established in Southern India modifying the general principle of law. I must therefore hold that each defendant is only separately liable in respect of the wet lands in his possession. The shares of the defendants are already known. As to the dry lands they are jointly liable. The only question that has to be determined now is, what is the proportion of the poruppu payable on the wet lands and on the dry lands? 4. The materials on record are not enough to determine this. The Subordinate judge will now find on the question, how is the poruppu to be proportionately distributed between wet lands and dry lands? He must do this with reference to the assessment of the wet and dry lands and their market value. When he determines this, he will then divide the assessment of the wet lands between all the sharers for the three faslis in suit. He will notice in the written statement of the defendants that the shares of sharers Nos. 1 to 8, 10, 12, 13 and 15 are the same for all the three faslis and the proportions differ for the three faslis only in respect of sharers Nos. 11, 14 and 1.6. He will then consider the several receipts filed in the case by the defendants and allow the defendants to appropriate the payments under these receipts as they like for the dry or wet portion in each man's share and ascertain the balance due by each defendant for each fasli. A tabular statement for each of the three faslis for all the sharers would be convenient. 5. He will then pass decree accordingly for the respective amounts against the several defendants. The suit will be remanded for disposal according to law with reference to the above directions. 6. In the High Court each party will bear its own costs. In the Court below the plaintiff will get from each defendant proportionate costs with reference to the decree he obtains against that defendant. But the plaintiff need not pay any costs to any defendant. Reilly, J. 7. It is admitted that the village with which this suit is concerned has been held under the local Raja or Zamindar for a very long time in 24 shares. It appears from Ex. IV which contains a descriptive report of the village made by the Inam Commissioner and an extract from the Government Inam Register of 1864, that 6 of these shares were granted as dharmasanam on a favourable rent or poruppu to some Brahmins by Mahabalivan Raja at an unknown date and that the remaining 18 shares were granted in 1794 by Marudappa Sarvakaran to certain persons on poruppu in connection with the endowment of a chatram at Chudiyur. Whether the profits of the 18 shares were to be the endowment of the chatram or only the poruppu was to be the endowment is not clear. But it appears that about 1835 the Zamindar of Sivaganga, the plaintiff's predecessor, became the trustee of the chatram, and from that time at any rate the poruppu of the 18 shares was treated as the endowment. The chatram part of the village is stated in Ex. IV to be distinct from the dhamiasanam part. This suit is concerned only with the 18 shares of the chatram part, and the plaintiff sues as trustee of the chatram for the recovery of the balance of poruppu for 3 faslis. The defendants are the present holders of the 18 shares. The plaintiff contends that the defendants are jointly and severally liable for the whole poruppu on the T8 shares. The defendants contend that each of them is liable only for the poruppu on the share or shares held by him. (2) From Ex. IV it appears that the 18 shares were equal but that the land covered by them was not then divided. There is also a remark in Ex. IV. Poruppu is paid on the number of vrithies equally and permanently. But that remark appears to be made with reference to the two divisions of shares--viz., 6 dharmasanam shares and 18 chatram shares--and it will be noticed that the area of wet and dry land granted as dharmasanam is exactly 1|3 in each case of the area granted to the chatram. I do not agree with Mr. Sesha Aiyangar who appears for the defendants that the remark means that poruppu was being paid to the Zamindar on each of the 18 shares individually. I understand it to mean that the poruppu was fixed permanently and was paid proportionately on the 6 dharmasanam shares and the 18 chatram shares. Ex. IV further shows that at its date the chatram 3|4 of the village to which the 18 shares relate was in the possession of 9 persons, to whom the 18 shares had passed from the original grantees or their successors by sale. The defendants are the assignees or heirs of those 9 persons. D. W. 1 the only witness examined for the defendants states that the shares of those 9 persons are not shown in the inam register because they were "undivided", by which he can only" mean that the land held by them was undivided, as some of them were Hindus and others Muhammadans. In Ex, IV doubt is thrown upon the right of the original grantees or their successors to sell the 18 shares; but there is no doubt that it was by purchase that the 9 persons acquired the 18 shares which they held in different proportions. In these circumstances it is clear that the 9 persons must have held the land covered by the 18 shares as tenants-in-common. That being so, I see no reason to doubt that they were jointly and severally liable for the whole poruppu on those shares. It is not suggested by the defendants that the 9 persons were trespassers. On the contrary the defendants' case is that these 9 persons were the lawful assignees of the original grantee, who held on a perpetual lease subject to a covenant to pay the favourable rent or poruppu. By the assignments privity of estate between the 9 persons and Zamindar, as the trustee to whom the poruppu had to be paid, had been established. As their tenancy-in-common gave each of them an interest in every part of the 3 4th of the village covered by the 18 shares, the privity of estate between each of them and the Zamindar must have extended to the whole of that area. If that view is correct, then the liability of each of them for the poruppu must have been equally extensive. It was only by privity of estate that they were liable to the Zamindar for the poruppu. The liability of the assignee of a lease-hold by reason of privity of estate to pay rent to the landlord arises with the assignment to him and ceases with a re-assignment by him, and the liability and the privity extend to the whole of the premises covered by the assignment and no further. On those principles the assignee of a lessee tenant-in-common must be liable for the whole of the rent of the property to which his tenancy-in-common relates. In limited Dairies v. Public Trustee (1923) 1 KB 469 Greer, J., stated that he was inclined to this view, and he quotes the opinion of Kenny, J., in Dooner v. Odlum (1914) 2 Ir. R 41l at 415 to the same effect. In Jagan Mohan Sarkar v. Brojendra Kumar Chakravarthi (1925) ILR 53 C 197 (FB) the majority of a bench of 5 Judges adopted this view as a step towards their decision in that case; one of the dissenting Judges explicitly agreed with them on this point, and the other learned Judge contented himself with resting on a previous judgment of his own in which this point was not discussed. 8. On the case being sent back to him, the Subordinate Judge has now found that the wet land in the chatram 3|4 of the village has been divided among the defendants and that they are in possession of separate plots of it, but that, so far as they are concerned, the dry land in the chatram part of the village is undivided. The Subordinate Judge has not found when the division of the wet land was made; but it is clear that it was done after the date of Ex. IV. The finding is not disputed before us; nor is it disputed that the division of the wet land was made by the defendants or their predecessors-in-title without reference to the Zamindar and before the faslis to which this suit relates. When the defendants or their predecessors-in-title divided the wet land among themselves and took separate possession of separate plots according to the number of their shares, there was in effect re-assignment to each sharer among them by all the other sharers of their interests in the land allotted to him. By that re-assignment the privity of estate with the Zamindar of each sharer in respect of the whole wet land in the chatram 3 4 of the village other than that allotted to him came to an end and a new exclusive privity of estate between him and the Zamindar arose in respect of the separate wet land allotted to him. From that moment his liability as a tenant-in-common to pay rent for the whole wet land ceased, and he became liable, so far as the wet land was concerned, only for the rent on the land allotted to him at the division. Had the defendants been heirs of original lessee tenants-in-common, they could not of course have shuffled off their joint and several liability for the whole rent in this way by division among themselves without their lessor's consent. But, as things stand, in respect of wet land for the faslis in question the Zamindar is entitled to get from each of the defendants only the rent due on his particular holding. For the dry land on the other hand the defendants as tenants-in-common are still jointly and severally liable for the whole rent. The fact that no part of the dry land is in the actual possession of any of them but that it is held under them by sub-tenants some of whom have occupancy right and others have a perpetual sub-lease, does not, as Mr. Sesha Aiyangar has suggested, in any way affect the position of the defendants towards the Zamindar as tenants-in-common of the whole of the dry land. 9. It should not be difficult now for the Subordinate Judge to dispose of the suit if he can determine how much of the whole poruppu is attributable to the wet land and how much to the dry land. If, as appears probable from the defendants' contentions, the separate plots of wet land held by them arc proportionate in value to the shares or fractions of shares out of the 18 held by each defendant, the apportionment of the poruppu on the wet land among the defendants will be a simple matter of arithmetic. it is probable that each defendant will wish to appropriate what he has paid already, if anything, first towards what is due on his separate wet land. If so, whatever any defendant has paid in excess of the amount due on his separate wet land will go towards the amount due from all the defendants for the dry land. For any balance due on wet land the Subordinate judge will make a decree against the defendant concerned individually, and for any balance due on the dry land he will make a decree against all the defendants. 10. I agree with the proposal of my learned brother that the suit should be remanded to the Subordinate Judge for fresh disposal on these principles and also with his proposal in respect of costs. Madras High Court Sri Rajah Jagaveera Rama ... vs The Collector Of Tirunelveli ... on 4 April, 1961 Equivalent citations: (1962) 1 MLJ 20 Author: Srinivasan JUDGMENT Srinivasan, J. 1. The Ettayapuram Zamin estate was notified under Act (XXVI of 1948) with effect from 3rd January, 1951. The Zamindar moved the High Court by a writ petition challenging the validity of the above Act. His petition failed. He carried the matter in appeal to the Supreme Court. There too he failed. The Government took over possession of the estate on 26th September, 1954. 2. Thereafter, the Zamindar filed a Petition under the above Act before the Assistant Settlement Officer claiming that at the time the Government notified and took over possession of the estate, they included certain villages which were not part of the Zamindari but were really inam villages. He accordingly moved the Assistant Settlement Officer seeking to have determined the nature of 88 villages which, according to him, were not part of the permanently settled estate of Ettayapuram but were really inam estates coming within the meaning of Section 2(7) of Act, XXVI of 1948. 3. These 88 villages fall into two groups, one consisting of 87 villages and the other of a single village of Sivagnanapuram. The claim of the Zamindar was that these villages originally formed part of the Palayam of Panchalankurichi, which Pal ay am was confiscated as a result of the Poligar of Panchalankurichi taking up arms against the then Government represented by the East India Company. In view of the meritorious services rendered by the then Zamindar of Ettayapuram who was a Poligar in assisting the East India Company in quelling the rebellion led by the Poligar of Panchalankurichi, Katta Bomman, the then Government made a " gift in inain " of 79 villages forming part of the confiscated Palayam of Panchalankurichi to the then Poligar of Ettayapuram. It is these 79 villages that have now come to be grouped as 88 villages, the subject-matter of the present appeals. 4. We shall in due course refer to specific terms of the grants. At present, it would suffice to mention that the 'gifts' were completed under formal documents, dated 22nd January, 1800 and 12th September, 1801. Subsequently, however, as part of the Permanent Settlement Proceedings started and completed under the Madras Permanent Settlement Regulation XXV of 1802, the estate of Ettayapuram was permanently settled. It is common ground that at that time no distinction was made between that part of the estate which had all along belonged to the Poligar of Ettayapuram and the other villages of Palayam of Panchalankurichi which were gifted to the holder of the estate of Ettayapuram. On the basis that these disputed villages formed part of separate grants the terms of which grants brought them within the scope of an inam grant, the petitioner moved the Assistant Settlement Officer for a declaration to the effect that this group of villages fell within the description of an inam estate. 87 of these villages are said to be covered by a grant, dated 12th September, 1801 and one village, viz., Sivagnanapuram, is covered by a grant, dated 22nd January, 1800. The Assistant Settlement Officer held both on a construction of the terms of the grants and subsequent events that the grants only purported to incorporate all of these villages in the Zamindari of the appellant, and even if the grants were construed independently, they were intended only to secure to the Zamindar rights similar in their nature to those which he held in relation to the Ettayapuram Zamin. He further held that by reason of the subsequent proceedings under Regulation XXV of 1802, whatever might have been the alleged origin of the Zamindar's rights to those villages, those rights ceased and the Zamindar could not claim to hold these villages except as part and parcel of a permanently settled estate. 5. Appeals from the decisions on the Assistant Settlement Officer were taken to the Estates Abolition Tribunal. In the meantime, Act XXX of 1956, had come into force, whereunder the Tribunal was constituted conferring jurisdiction upon the Tribunal to decide the question which had been raised before the Assistant Settlement Officer. The Tribunal came to the same conclusion as to the Assistant Settlement Officer and dismissed the appeals. The present appeals arise from those decisions of the Estates Abolition Tribunal. 6. It is a matter of history that a large number of Poligars of Tirunelveli District, banded themselves together and rebelled against the then Government represented by the East India Company. This rebellion was headed by Katta Bomman, the then Poligar of Panchalankurichi. It is also undisputed that the East India Company had the advantage of the loyal assistance of the Poligars of Ettayapuram, Maniyachi and Melmandai in quelling this rebellion. For our present purposes it would be sufficient to state that the Palayam of Panchalankurichi was confiscated. In the Gazetteer of the Tirunelveli District, it is recorded: A conspicuous exception amongst the eastern chieftains was the Poligar of Ettayapuram who although a Thotien like Panchalankurichi proved himself in the troubles that followed the staunchest adherent of the company. He was in fact the only Poligar who rendered effective assistance. At page 81: A proclamation was issued by Major Bannerman to all the Poligars notifying the commands of the Government. The Palayam of Panchalankurichi was declared confiscated; likewise the estates of the five Poligars... who had joined in the recent rebellion. Orders were given that all forts should be destroyed and that every firelock, matchlock pike or spear should be surrendered on pain of death. In consultation with the Poligars, it was decided that the work of demolition of forts and of disarmament should be left to their owners, the conduct of the Ettayapuram Poligar be held up to them for emulation. 7. On the 20th June, 1801, the Collector, Mr. Inshington, made certain proposals to the Board of Revenue, which, in so far as they are material for our purpose, are extracted below: 1. Since the reduction of Panchalankurichi, much of time has been given to calm the distractions of that taluk. Though the bulk of the inhabitants have returned to their villages, yet those of the Poligars estate, the Totiens and Kavalgars, keep aloof. * * * * * * 4. The increase in peishkush, the deprivation of caval, the interdiction against the future use of those implements, which had been so long regarded by the Poligars with such fond attachment were extended to all and it will be in remembrance of your Board that die arguments by which it was attempted to reconcile the Poligars to those privations were by none more strenuously combated than by the Poligar of Ettapore, upon the ground of that fidelity which he had ever testified towards the Company. But the mortification he suffered in being treated with the suspicion of a disaffected tributary had no influence upon his public conduct, for he paid the increase with punctuality, and gave no cause for a single complaint against him. * * * * * * 5. Such was the conduct he had observed prior to the present rebellion; during the progress of it he has conducted himself with uniform attachment manifesting on every occasion a sincere desire to aid the efforts of our troops to the utmost of his power. Besides the assistance derived from the Poligar in the reduction of the rebels, his example has had the most happy influence upon the other Poligars and adverting to the justice and policy of rendering the situation of a tributary who has thus conducted himself eligible and easy, it appears to me very expedient that this Poligar should receive some lasting mark of the Company's approbation. * * * * * * 7. From these considerations I take the liberty of submitting to your judgment the propriety of transferring to the Poligar of Ettapore upon a reasonable jumma the lands of Panchalankurichi immediately bordering upon Ettapore according to the enclosed statement A. * * * * * * 9. The havoc since occasioned by death and emigration among the people, the complete destruction of many villages and the great loss of cattle by plunder have so materially reduced the value of the villages, that they are no longer capable of yielding nearly the amount which was realised from them in the last year. It becomes necessary therefore in calculating the sum which the Poligar ought to pay from these lands to make some deduction from the Jumma of the last year on account of the unfavorable circumstances I have stated, and which I conceive cannot be calculated at less than 20 per cent. This deduction made I would propose that the Poligar should pay to the Company two-thirds of the remaining gross revenue, reserving the other third for his own expenses and as a reward for his constant attachment to the Company's Government.... 8. The proposals suggested in Mr. Inshington's letter to the Board appear to have been accepted with some modifications by the Board with the following result. In a letter from the Governor-in-Council, dated 10th August, 1801, addressed to the Collector of Tirunclvcli, the proposals for the future treatment of the Panchalankurichi lands, were dealt with in this manner: 2. The Board have considered and recommended to Government the plan we have proposed for the division of the Panchalankurichi lands amongst the Poligars who have manifested attachment and allegiance during the troubles in the southern provinces. * * * * * * 5. The Government have authorised the annexation of the lands bordering upon Ettapore to the charge of the Ettapore Poligar. You will explain to him that this voluntary addition to his landed property is founded on Government's approbation of his fidelity and that they have bestowed this reward for the meritorious example he has exhibited of attachment to the Company. The jumma of these lands has to be fixed for a period of three years... this period will be sufficient for the country to recover when the revenue should be raised to two-thirds of the gross collections...and that to become the permanent demand on the country which is very moderate. Apparently, intimation of the proposed division of the lands of Panchalankurichi and of the addition of a portion thereof to the "charge of Ettapore Poligar" was given to the Ettayapore Poligar and some objection the nature of which is not quite clear, seems to have been advanced by him. In a letter from the Collector Mr. Inshington to the Poligar of Ettayapuram, Mr. Inshington stated: I have received your letter, dated the 1st of September relative to the lands of Panchalakurichi and as I observe that you have not perfectly understood the motives of His Lordship in Council in thus voluntarily proposing to make a large addition to your landed property, I lose no time in sending to you the letter which in the warmth of my regard for you and in the desire of conferring upon you some lasting mark of the Company's approbation, I wrote to the Government together with His Lordship's answer.... 9. The Poligar's objections were met by the above letter. On the 12th September, 1801, a Parwana was issued, the relevant portions of which are extracted below: Whereas you have conducted yourself faithfully to the Company's administration...whereas it is desired to make you eminent you are given the six Mahanams...within Panchalakurichi jurisdictions. The possession of these six Mahanams is given to you and you are also given greater rights therein as a reward to your work. On account of this you shall keep these six Mahanams in your possession and hold and enjoy the same, for ever from son to grandson. You should treat this gift as something more than what you expected, knowing that greater rights are conferred on you in respect of these six Mahanams, and that these will remain with you and your children for ever. You should be very careful in the matter of getting tenants to these villages and in the matter of raising greater produce, and pay what is due to the company in respect of these Mahanams, and you shall hold and enjoy the balance for yourself.... 10. Simultaneously, a proclamation was issued bringing to the notice of all the citizens of the area that certain portions of the Panchalankurichi Palayam had been granted to Ettayapuram Palayakar and calling upon the tenants to conduct themselves obediently and be subject to the control and direction of the Ettayapuram Palayakar. 11. This grant was in respect of 87 villages. In respect of one other village Sivagnanapuram, the Sannad had been granted on the 22nd January, 1800, which was briefer in its terms and ran thus: Especial confidence being reposed in your fidelity and obedience, the Government of Fort St. George have been pleased to grant to you and to your heirs the village of Sivagnanapuram in token of their approbation. This sannad is therefore to be considered your authority for immediately assuming the said village and for holding the same in perpetuity. It is the proper construction of these two grants that is in question in these appeals. 12. Broadly stated, the Tribunal took the view, that the intention of the Government in making these grants being to make a large addition to the landed property of the Ettayapuram Poligar and to transfer and incorporate certain Mahanams in his zamindari, despite the use of the expression such as 'bestowing a reward in approbation of the faithful conduct of the Poligar', amounted to nothing more than enlarging the extent of the Ettayapore Zamindari. Particular attention was focussed upon the fact that in the grant of the year i8or, the Poligar was under an obligation to pay to the Company jumma that was due. Though they were grants, so the Tribunal held, they were not grants in inam. It was also pointed out that following Regulation XXV of 1802, there was a permanent settlement effected in respect of the Ettayapuram Palayam, including in such permanent settlement these 88 villages, apparently in pursuance of the stipulation, explicitly contained in one of the grants that the Poligar shall pay what was due to the company. In addition, the Tribunal held that the failure of the grantee to have the status of these villages determined at the time of the Inam Commission Proceedings in 1863, alongside the fact that he accepted the permanent settlement of these villages under Regulation XXV of 1802 for the last century and a half must lead to the conclusion that it was never understood at any point of time by the parties thereto that these grants were grants in inam. 13. The arguments before us have covered a very wide field. The principal argument addressed on behalf of the appellant has been that if it is found that the grants of the years 1800 and 1801 were really grants in inam, the subsequent permanent settlement under Regulation XXV of 1802 would not affect the real nature of the grants. It was urged that what Regulation XXV of 1802 purported to effect was only to settle the peishkush that was payable and did not affect the real title to the property. The original tenure, according to Mr. Vedantachari for the appellant, was created by the two grants, and no proceeding under the said Regulation would alter that nature. Special emphasis was laid by the learned Counsel on the term employed in the grants that it was a gift and the creation of greater rights in the properties so granted. 14. The contentions of the respondent, on the other hand, pointed out that though the Poligar was relieved of his obligations under the terms of the earlier tenure to police the area under his control even before 1800, following the Poligar Rebellion the Palayam tenure itself was not altered till proceedings were started under Regulation XXV of 1802. Any grant that was made before the settlement under this Regulation must necessarily be taken as the Palayam tenure under which the Poligar held his other properties. In particular, it was claimed that the obligation of the Poligar to pay what was due to the Company and to hold and enjoy the balance for himself was no different from Palayam tenure. It was also claimed that the grant of a territory as distinct from a village or villages, which was what was intended under the grant of 1801, would take the case out of the scope of Section 3(2)(d) of the Estates Land Act. It was lastly contended that even assuming that the grants had the incidents of grants in inam, the failure to object to the proceedings under Regulation XXV of 1802, which ensured fixity of assessment and the creation of a tenure, cannot be rectified at this distance of time. If the estate was then permanently settled, it became a permanently settled estate within the meaning of Section 2(2)(a), and there was no scope for invoking Section 3(2)(d) of the Estates Land Act. 15. It seems reasonable to hold that a grant of this kind which was made several decades back must necessarily receive its interpretation in the light of the surrounding circumstances and contemporaneous events that were operative and that led to the grants. We have set out in broad detail the reasons that led to these grants. Following upon the passing of Regulation XXV of 1802, a Special Commission was appointed for the purpose of effecting a permanent settlement. This Special Commission paid particular attention to the case of the Poligars, and one of the purposes of the permanent settlement was, in the words of the Special Commission: The absolute suppression of the Military power of the Poligars, and on the substitution of a pecuniary tribute more proportionate than the ordinary peishkush to the resources of the poligar countries and more adequate to the public demand for defraying the expenses of general protection and Government. In paragraph 30 of the Report, the Commission state: The eleven pollams of Ettiapore, etc., have not been subjected to the immediate management of British Officers, the former peishkush paid by those Poligars being compared with their computed resources appears to have been as low as 10 per cent. and in no instance to have exceeded 33 per cent. The permanent assessment of those Pollams proposed by us is with few exceptions less than the peishkush settled or the revenue collected by the Collector in the year 1800 : that which we recommend for the large pollams varies in its proportion to the computed resources from 54 to 57 per cent.... Dealing with the forfeited Palayam of Panchalankurichi, the Report said: ...It further pleased your Lordship in Council to direct that the Pollams of Panchalankurichi...should be declared to be for ever forfeited by the families of the late Poligars; and that the lands should be divided for the purpose of conferring a distinguished reward and a perpetual mark of public favour of the Poligar of Ettiapore...for their particular good conduct, fidelity and assistance during the late rebellion. According to that intention, the lands of Panchalankurichi with the exception of two Mahanams have been transferred to the Poligar of Ettiapore and incorporated in his zamindari.... Apparently, the Special Commission thought that the transfer of the forfeited palayams in the above manner was intended on the part of the Government more with a view to the expediency of the arrangement with respect to the management of those pollams, than to excite those sentiments of gratitude which ought to be produced by a distinguished mark of public appropriation; and in order to convince the Poligars of the principles of the Permanent Settlement the Special Commission suggested that a portion of the pecuniary advantage to be derived from the confiscation of the rebellious pollams should be converted to a substantive and honourable reward of allegiance. In this view, in so far as Panchalankurichi was concerned, the Special Commission advised that it is extremely advisable to reduce the assessment to be imposed on the forfeited lands, and to commence the system of permanent revenue in the southern countries, by transmitting to the Poligars and to their descendants a memorable example of public justice in the punishment of rebellion, contrasted with that of gratuitous generosity in the reward of fidelity. It also appears from the enclosure to the Report of the Special Commission, that, while the jumma proposed in respect of Ettayapuram palayam was fixed at 55 per cent, of the estimated revenue, in the case of Panchalankurichi and other sequestered palayams, this jumma was fixed at 30 per cent. It is this circumstance upon which a great amount of reliance has been placed by the learned Counsel for the appellant in support of his argument, that the favourable treatment of the Panchalankurichi lands in the assessment of peishcush connotes a grant in inam. 16. Leaving tins aspect of the matter for the present, we may deal with the argument, that notwithstanding the permanent settlement effected under Regulation XXV of 1802, it is the earlier tenure created by the documents of grant that still govern these 88 villages, and that they stand unaffected by the Permanent Settlement. We have been referred to certain decisions in support of this argument which we shall now proceed to examine. 17. The Collector of Trichinopoly v. Lekkamani (1874) L.R. 1 I.A. 282, dealt with the palayam of Marungapuri. This palayam was not permanently settled. The Judicial Committee of the Privy Council held that Regulation XXV of 1802 did not create new rights in the owners of the lands not permanently assessed or take away from them any rights which they may have had and that it merely vested in zamindars a hereditary right at a fixed revenue upon the conclusion of the permanent assessment with them. In that case, the question that arose was whether a palayam was hereditary, though not permanently settled; and the contention of the Government that the palayam being unsettled, after the death of the late zamindar the right to appoint a successor vested in the Government, was negatived. Dealing with the recitals contained in the Preamble to Regulation XXV of 1802 the Privy Council observed: The language of the recital applied as much to the zamindars in their lifetime as it did to the heirs of zamindars upon their deaths. If the words were to have the unlimited construction and effect contended for, the Regulation would have justified Government in depriving or dispossessing the deceased poligar in his lifetime, and in transferring the zamindari to a new holder, to the same extent as it would have justified them in dispossessing his heirs after his death. 18. Explaining the Privy Council decision, the Madras High Court said in Narayana v. Chengalamma (1886) I.L.R. 10 Mad. 1: The matter in contest in that case was mainly the character of the tenure as heritable property though with this difference, viz., that the contest was then between the Crown and the heir at law, and that there was an express appointment by Government to divert the estate from the ordinary course of descent.... The learned Judge points out: It has been repeatedly held with reference to ancient palayams and zamindaris brought under the permanent settlement that such settlement only changed a precarious tenure into permanent property and a varying assessment into a fixed demand and did not otherwise alter the incidents of the estates either in regard to their mode of descent or partibility as evidenced by family usage. These two decisions do not however appear to touch the point in issue before us It is true that they laid down the limits of a permanent settlement under Regulation XXV of 1802 and confirmed the earlier decisions that the incidents of family usage regarding heritability stood unaffected by the Permanent Settlement. 19. The decision in Secretary of State for India v. Raja of Venkatagiri (1921) 41 M.L.J. 624 : L.R. 48 I.A. 415 : I.L.R. 44 Mad. 864 (P.C.), is more to the point. In that case, the sannad had been issued to the zamindar in which a reservation was made in favour of the Government with regard to the revenue derived from salt and saltpetre and certain other subjects. But no mention was made of lakhiraj or inam lands. It also appeared that the assessment had been fixed on the whole of the zamindari, irrespective of the assets derived from each particular unit of property within it. Under Regulation XXV of 1802, however, the Government was entitled to reserve to itself certain items of revenue including lakhiraj or inam lands. The proceedings that led to the issue of the sannad to the Raja of Venkatagiri were not however under this Regulation. Later, when the Raja of Venkatagiri resumed such inam lands within the ambit of his estate, the Government attempted to impose additional revenue thereon, relying upon Section 4 of Regulation XXV of 1802. Their Lordships of the Privy Council concluded that when the assessment had been fixed taking the whole zamindari into consideration on the basis of the arrangements which were entirely different from those provided in Section 4 of the Regulation, both the assessment and the sannad were outside the Regulation. Their Lordships emphasised that the sannad was effective from a date anterior to the passing of the Regulation itself and accordingly stood unaffected by the Regulation. This decision would certainly be of great value to the appellant's contention, if it can once be established that the grants made in the present case were of a character entirely different from a palayarn or zamindari tenure. 20. In Sri Raja Satrucharla Jagannadha Razu v. Sri Raja Satrucharla Ramabhadra Razu (1891) L.R. 18 I.A. 45 : I.L.R. 14 Mad. 237 (P.C.), the Merangi Zamindari was formerely held on military tenure, under the Zamindar of Vizianagaram. The question that arose was whether by reason of the subsequent dealings with the zamindari, the nature and terms of the grant under which it was held after 1802, the original impartible character of the estate, even if that should be assumed to have existed, was intended to be continued after the grant of the sannad subsequent to the Permanent Settlement. It would appear that originally the zamindari was held under military tenure from the Raja of Jeypore. Later it became part of the Vizianagram Zamindari by reason of conquest. The grant of the year 1803 was in the ordinary nature of the grants that were made following the Permanent Settlement. Subsequently thereto, the estate came to the possession of the Government having been purchased in public sale for payment of a debt due by the zamindar. The Dewan of the former Zamindar, who had proferred valuable services to the Government, was offered a pecuniary reward, but the Diwan prayed that instead of a pecuniary reward to him, the new grant of the zamindari might be made in the usual terms of a sannad-in-milkiyat-i-istimnari. As usual, a clause in the sannad, conained, a covenant that the grantee was authorised and empowered to hold in perpetuity "to your heirs, successors, and assigns, at the permanent assessment herein, named, the 'zamindari' of Merangi". The question that arose was whether the estate continued to possess the character of impartibility, which it was assumed to have had when the earlier grant had been burdened with the performance of military services. Their Lordships of the Privy Council took the view that there was nothing in the circumstances under which this grant was made to lead to the inference that the Government had in view in making this new grant the creation of an impartible zamindari as an exception to the ordinary rule of succession under the Hindu Law. This decision serves to establish that by reason of a re-grant, which the Government was entitled to make, the original incidents attaching to the estate may become altered, and that it is not axiomatic that in every case the terms of the original grant alone would govern. Learned Counsel for the appellant referred to Kalahastheeswaraswami Temple v. State of Madras (1954) 1 M.L.J. 258, in support of his claim that a new title cannot be deemed to be created by subsequent transactions. That however was a special case where the village of Kalahasthi had been granted in inam to the temple in 1791-92 by the Raja of Kalahasthi. When the zamindari of Kalahasthi was abolished by Act XXVI of 1948, the State notified the village of Kalahasthi as a zamindari estate, and the validity of that notification came to be examined. Reliance was placed by the State in support of its stand that since this was a portion of a permanently settled estate, which was separately registered in the office of the Collector falling under Section 3(2)(b) of the Estates Land Act, it was a zamindari estate. Venkatarama Iyer, J. held that the separate registry and the assessment to separate peishcush were under the provisions of Act I of 1876, which really gave effect to one of the clauses of Regulation XXV of 1802, under which transfers made by proprietors of permanently settled estates could, with the consent of the Government, be registered in the office of the Collector. Unless that was done, the entire estate would be liable to the payment of the peishcush. These provisions were intended to save the rights of the Government with regard to revenue. The conclusion reached was that Act I of 1876 did not confer on the alienee any new title but only recognised a pre-existing right providing, however, for the grant of relief in the matter of liability to pay the revenue. That being the limited scope of Act I of 1876, the learned Judge held that the character of the village of Kalahasthi by the grant in inam to the temple could not be altered by any proceeding under that Act. It is obvious that this decision is of only limited application and does not throw any light upon the dispute in the present appeals. 21. In the Tanjore Palace Estate case (1917) 32 M.L.J. 333 : I.L.R. 40 Mad. 389 (F.B.), the question arose whether the re-grant by the British Government of a large number of villages was of the nature of a grant in inam. The villages originally formed part of the territories of the Raja of Tanjore ceded to the East India Company in 1799. The Company however did not exercise its right of collecting revenue from the villages and after the death of the Raja his territories were taken possession of on behalf of the Crown as an act of State. Thereafter, these villages became the property of the Government, and some years later they were granted as a matter of grace to the heirs of the late Raja. Wallis C.J., delivering the main opinion of the Full Bench observed: The grant now in question appears to have been commonly spoken of as a mokhasa grant and though it cannot be said to have been granted on what is understood as mokhasa tenure, the use of the word goes to show that it was regarded as an inam of a dignified character. There was no distinctive word for a peculiar inam of this kind, and it was probably thought better to use the word mokhasa though not strictly applicable rather than to describe the grantees merely as inamdars, a term which includes large numbers of petty grantees in very humble circumstances. There is, in my opinion, no sufficient ground for supposing that it was intended to exclude from the operation of Section 3(2)(d) grants which were irresumable, as the fact that they were irresumable would not be a ground for excluding them, having regard to the policy of the Act. Sadasiva Iyer, J., in expressing a concurring opinion, referred to the earlier decision to which he was a party, which was overruled by the decision under citation. He said: No doubt, the word 'inam' means 'gift' or 'benefaction' in the widest and most popular sense of that Arabic term which has passed particularly into every one of the Veranacular languages of India. It is a gift by a superior to an inferior and is applied in popular language to any gift, whether of moveable or immoveable and of however petty a value. But it has also got several restricted meanings varying in different parts of India. It is thus clear that when a Madras Statute uses the word inam, it does not singify a gift of whatever kind of property by a superior individual of whatever status to an inferior. Some restriction of the above very wide general significance being assumed... Mr. Justice Napier's opinion was that the legislature when talking of grants 'in inam' could have had in its contemplation only grants in the subject of which the Government retained some reversionary interest to be enforced in certain contingencies. He finally agreed with the opinion of the learned Chief Justice that the mokhasa grant in question, in which the Government had reserved no reversionary interest, was not intended to be excluded from the definition contained in Section 3(2)(d) of the Act. This decision deals obviously with a case of a very peculiar kind, where what were originally private lands of the Raja of Tanjore came to be re-granted under certain special circumstances. That, that was the case was made clear by the decision of the Privy Council in Secretary of State v. Thinnappa Chettiar (1943) 2 M.L.J. 382 (P.C.), where their Lordships refer to the fact that it was not so much a grant that was made in favour of the heirs of the Raja but a restoration of the rights of the previous owners. The following passage from that judgment is instructive: Their Lordships must assume that he held the estate as its absolute owner with all the rights of enjoyment appertaining to such ownership. It was while the property was being thus held that it was seized with the Raj by the company; and some time after, the private estate was restored to the heirs of the last Raja in its entirety.... In the order passed by the Government of Madras under this instruction, on 21st August, 1862, already noted, the Madras Government says that the decision of the Government of India is to the effect that 'the whole of the lands are to be relinquished in favour of the heirs of the late Raja' The word 'relinquished' is significant. This decision can have only one meaning, that is, that the private property was restored to the heirs of the late Raja in all its integrity and without reservation of any kind of right in favour of the Madras Government. The grant was an irresumable inam. In dealing with the question whether the villages were estates within the meaning of the Estates Land Act, they observed: It is said that the grantees of 1882 have been held in Sundaram Ayyar v. Ramachandra Iyer (1917) 32 M.L.J. 333 : I.L.R. 40 Mad. 389 (F.B.), to have been given the land revenue alone without the kudiwaram rights. Their Lordships are not called upon to express an opinion whether the villages are 'estates' within the meaning of the Madras Estates Land Act, and they consider that their proper course is to construe the grant of 1882 upon the materials to which they have referred.... Having regard to the nature of the grant of 1882, their Lordships think that the Tanjore Palace Estate, if treated as an inam, must be treated as a peculiar kind of inam-their Lordships observed that the word inam is no where used in the grant and the estate appears commonly to have been spoken of as a mokhasa which it is not and that under it, amongst the rights obtained by the grantees were included rights which entitled them to use the water for purposes of free irrigation from the sources from which it used to be taken before the grant. Later they observed: It is true that there was no express agreement at the time of the grant not to levy any rent on the estate, but having regard to the intention of the Government to restore the estate to the heirs of the Raja in all its integrity as an act of equity and policy, the decision not to settle any jumma should be understood as an implied agreement not to levy any quit-rent on the estate. There is no evidence that the estate was subject to assessment prior to the grant. No jodi or quit-rent has been levied since.... It means that jama was not fixed at the time of the grant, and nothing more. No jama was settled, for the obvious reason that the Government, while restoring the estate to the Raja's heirs as an act of grace, did not wish to detract from the grant by levying any rent.... These observations would perhaps be relevant when we come to consider the fixation of the jama in respect of the villages now in dispute. 22. The conclusion that we reach on a consideration of the above cases is that while normally the Permanent Settlement did not purport to interfere with the character of the estate in so far as the title thereto was concerned, it was not incompetent to the Government when it chose to make a grant to impose any special terms and conditions. While such proceedings as the Permanent Settlement would not interfere with the rights of the holder of the estate vis-a-vis the members of his family, the mutual obligations between the State as the grantor and of the holder of the estate as the grantee must necessarily be governed by the terms of the grant and the permanent settlement. In the present case, the grant of the year 1801, portions of which we have extracted earlier, is put forward as a grant in inam, and it is claimed that notwithstanding the subsequent permanet settlement it must be deemed to continue to be operative as a grant in inam. It is this contention that has to be examined. 23. In so far as the present appeals are concerned, the claim is that these villages form inam estates within the meaning of Section 2(7) of Act XXVI of 1948. Under this section, an 'inam estate' is defined to mean an estate within the meaning of Section 3, Clause (2)(d) of the Estates Land Act, but does not include an inam village which became an estate by virtue of the Madras Estates Land (Third Amendment) Act, 1936. Section 2(16) also defines a ' zamindari estate' to mean an estate within the meaning of Section 3, Clause (2)(a) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, Clause (2)(e) or (2)(b) of that Act" or an estate within the meaning of Section 3, Clause (2)(6) or (a)(c) of the Estates Land Act, after excluding therefrom every portion which is itself an estate under Section 3, Clause (2)(e) of that Act. It is clear from these two definitions that in so far as "zamindari estate" as defined in Section 2(16) is concerned, it does not take in inam estates which would come within the scope of Section 3(2)(d). The two definitions would appear to be mutually exclusive. The intention of the Abolition Act was to provide different modes of computing compensation payable for zamindari estates and inam estates. If the grants in these two cases should, therefore, fall within the description contained in Section 3(2)(d) of the Estates Land Act, they would be taken out of Section 2(16) and brought within the scope of Section 2(7) of Act XXVI of 1948. It follows that the question we have to consider is whether the grants would come within the scope of Section 3(2)(d) of the Estates Land Act as it stood prior to its amendment in 1936. 24. The learned Advocate-General claimed that at the time of the grant, Panchalankurichi was an unsettled palayam. The terms of the document of grant pertaining to the 87 villages did not purport to establish or afford any positive evidence of a change of tenure, as it only stated that the possession of these villages had been granted to the Ettayapuram Palayakar to be enjoyed by him, but subject to payment of what was due to the Company. There was accordingly the stipulation that the Palayakar should pay what was due to the company and that, in the absence of any settlement of the jumma at that time, must necessarily refer to what was paid formerly in respect of those villages by the previous Palayakar, or what the Government fixed thereafter. If that is the interpretation to be placed upon the terms of this grant, there is nothing to show that the palayam tenure (notwithstanding that the attendant requirement of military service had been discontinued) ceased to be operative. According to the learned Advocate-General, to constitute an inam, the grant should be either rentfree or on a fixed favourable rent. There is nothing in the document, to show that the grant was made on such conditions relating to rent. On the other hand, there was stipulation that what was due should be paid by the grantee. More than all, it was claimed that what was contemplated by this document was only an addition to the Palayam which constituted the Ettayapuram Zamindari; if it was that zamindari that was to be enlarged to the advantage of the zamindar, there is no justification for inferring a grant in the nature of an inam. 25. We have already referred to the Special Commission's Report. It was the finding of the peishcush Collector who was appointed to settle the jumma payable in respect of all these palayams that these palayams had formerly been paying jumma varying between 10 and 33 per cent, of the revenue derivable from these palayams. His view was that they were all considerably under-assessed and he proposed that the jumma should be fixed at as high as 55 per cent, or so and brought into line with the other palayams in this regard. The report of the Special Commission clearly indicate that several factors were taken into consideration in fixing the jumma of the Panchalankurichi area incorporated in Ettayapuram Zamindari. In paragraph 46 of the Report of the Special Commission is set out: The convulsions in the rebellious pollams have prevented the Collector from completing the information respecting the value of the lands in the satisfactory mode observed in the other pollams. The valuation of Panchalankurichi is stated by Mr. Inshington for the year 1802 at Star Pagodas; 23,477; of which the former peishcush amounted to Star Pagodas 6,208. The increased peishcush,. recommended by Mr. Powney amounted to Star Pagodas 14,111; and that which is now recommended by Mr. Inshington in the actual state of the lands of Panchalankurichi amounts to Star Pagodas. 12,185 and bears the proportion of 57.per cent, to the valuation of the gross revenues. Paragraph 49: The permanent jumma proposed by Mr. Inshington for the pollams of Panchalankurichi...will, in his judgment, secure the objects intended by the distribution of those lands; but your Lordships in Council will observe that Mr. Inshington has seen, the havoc occasioned by the sword, and by the devastation of contending bodies in arms throughout these villages; and he knows also that many of the inhabitants who settled themselves for their satisfaction in the Circar lands at that period, are never likely to return to their original villages. Paragraph 50: If the object of your Lordship in Council, in distributing the lands of the forfeited pollams, appeared to be limited to the assessment of a reasonable jumma, we should concur in the moderate sum recommended by the Collector; but under the peculiar considerations which attach to the case, we are of opinion that it is extremely advisable to reduce the assessment to be imposed on the forfeited lands, and to commence the system of permanent revenue in the southern countries, by transmitting to the Poligars and to their descendants a memorable example of public justice in the punishment of rebellion, contrasted with that of gratuitous generosity in the reward of fidelity. Paragraph 51: On these grounds, we recommend that the permanent assessment on the distributed lands of Panchalankurichi...be fixed in the proportion of 30 per cent, to the gross valuation of 1802. 26. The above extracts give unmistakable indication that at the time of the proposed settlement it was found that a large number of tenants of Panchalankurichi village had left those villages and had settled down in the Circar villages and were never likely to return. The previous rebellion had so disorganised the cultivation of the area that the Special Commission was not prepared to agree "that the actual state of the lands in Panchalankurichi would justify fixing of such high percentage as 57 as the jumma." They no doubt took into consideration the services rendered by the Ettayapuram Poligar, and in so far as the reward for his services was concerned, it seems reasonable to infer that the large addition to his landed property that was contemplated by the addition of these villages to his zamindari fully met with that consideration. The fixation of jumma at 30 per cent, does not appear to have been founded upon those considerations. Even if the grant had been made only on zamindari tenure, there is no doubt, that it would yet have been a reward for his meritorious services. The fixation of jumma at a lower figure was clearly governed primarily by the condition of the lands of Panchalankurichi and the exodus of the tenantry therefrom. We are unable to agree with the argument of Mr. Vedantachari, for the appellant that the reduction of the jumma from 57 per cent, to 30 per cent, amounted to a favourable rate of rent. While it was no doubt favourable in the sense that as against the original proposal of 57 per cent., the jumma was fixed at 30 per cent, of the normal revenue, it is clear that even the rent as fixed on the basis 0/30 per cent, which was 7,042 Star Pagodas, was an enhancement of the former peishcush, which was only 6,208. Viewed from this angle that the previous peishcush was not reduced, it is exceedingly doubtful if any inference of an intention to confer upon the Zamindar of Ettayapuram the Panchalankurichi lands on any favourable terms of rent in the sense that such a grant would amount to an inam, can at all be made. We have examined the position as it emerged after the permanent settlement of the entire Ettayapuram zamindari including the additions made to it by the grants of 1801. Obviously the permanent settlement did not itself operate as a grant, and the nature of the grant was left unaffected by the permanent settlement. The grant contemplated the payment of what was lawfully due to the Government, the quantification of that sum as a permanent measure on the basis of the special considerations that applied to the villages of the Panchalankurichi palayman at a reduced ipercentage did not convert the original grant into an inam grant. 27. The point raised by the learned Advocate-General, that in order to constitute a grant in inam there should either be a grant free of the payment of any rent or on favourable terms of rent, appears to have considerable force. In the absence of either of these two features, it is claimed that there cannot be a grant in inam. This argument derives support from Lakskmanna v. Venkateswarlu (1949) 2 M.L.J. 500 : L.R. 76 I.A. 202 : I.L.R. (1950) Mad. 576 (P.C.). Their Lordships of the Privy Council observed: cof 'Arabic' origin which means reward or favour. The word came into use after the Muhammadan conquest. In ancient days, grants of land or revenue, were made by Hindu Sovereigns to individuals, particular families, or communities for various purposes, or to religious institutions for their upkeep. These were known as 'manyams'. The practice was continued by the Muhammadan Rulers and later, by the East India Company also, till it was discontinued in the earlier years of the 19th Century, as a result of instructions received from the Directors of the Company. Thence-forward, gifts of land were granted only in special cases, the ordinary cases being provided for by the grant of money pensions. Inams in the Presidency of Madras are of two kinds : first, those where the proprietary right in the soil and the right to the Government share of the revenue derivable from land coalesce in the same individual, and secondly, those where the proprietary or occupancy right is vested in one or more individuals, whilst the Government share of the revenue has been granted to another. They refer also the "Land Systems of British India" by Baden Powell and the well-known Report of Mr. Blair. 28. In Sellappa Goundon v. Baskaran (1960) 2 M.L.J. 363, the learned Judges had to consider as to what constituted an inam. They referred to the Privy Council decision cited above and observed: Can it be said that the grant by the Raja of Mysore in 1760 which included Komarapalayam was an inam? It was no doubt rent-free. But the essential element of an inam, namely, a benefaction, is lacking. The grant, whether it be of the land, its assessment or both, was one made in consideration of a payment by the grantee. It cannot be held to be an inam. The circumstance, that the grant was treated as an inam at the time of the inam settlement proceedings and title deeds were issued on the basis, cannot affect the original character of the grant. They refer in particular to Sam v. Ramalinga Mudaliar (1916) 30 M.L.J. 600 : I.L.R. 40 Mad. 664, where the word ' inam" was taken to mean a present or gift either to an individual or for public purpose and that an inam implied a grant of land with a remission, partial or total, of the revenue. 29. It is unnecessary to refer to any other decided cases in this connection. There is no doubt that in order to constitute a grant in inam, the mere use of the expression 'inam' or 'gift' is wholly inconclusive, unless, along with that expression, we can find an indication that the grantee was to enjoy the land either totally free of rent or to have partial remission of the Government share of the revenue. It is the contention of the learned Advocate-General that far from such being the case, the intention of the grantor, the then Government, was that the grantee should pay what was due to the Company that is, what was payable to the Government as its share of the revenue derivable from the lands. 30. In answer to this contention, Mr. Vedantachari, for the appellant, contended that the two parts of a grant, viz., the grant itself and the resultant favourable terms with regard to the rent, should be taken separately from each other. According to him, here is the case of a grant made to a person who but for the grant had no right to the property previously. The grant of the year 1801 refers to a gift and confers permanent possession and enjoyment of the property in the grantee. That is absolute in its connotation. Even taking the flatter part of the document, where the grantee is under an obligation to pay what is due to the Company, the further expression "you shall hold and enjoy the balance for yourself" amounts, according to the learned Counsel, to a share of the land revenue being granted in inam. We are unable to agree that such an interpretation of the document of the grant would at all be reasonable in the light of the two decisions that we have referred to earlier. If such an argument is accepted, there would appear to be no distinction whatsoever between a grant of an estate on zamindari tenure and a grant in inam. Even in the case of the former type of grant, the result is certainly the grant of something to a person who was not entitled to it previously, and any such tenure obviously grants to that person a part of the Government revenue, the peishcush payable by the holder of such an estate being only a proportion of the revenue which the Government would otherwise derive from the lands. If this argument is accepted, one can very well say that even in the case of a zamindari grant, there is this incident of a favourable term of rent imposed on the estate in question. We are unable to accept this argument. The result accordingly is that in order to constitute a grant in inam, there must be a clear indication that at the time of the grant, the grantor intended to grant either the land free of the payment of any peishcush or on favourable terms with regard to the peishcush. 31. The circumstance that the peishcush in respect of Panchalankurichi villages was fixed at 30 per cent, as against 55 per cent, which was adopted in the case of Ettayapur Zamindari does not lead to the conclusion that the reduction was indicative of the intention of the grantor to make a grant in inam. We have extracted portions from the Report of the Special Commission. The fixation of the peishcush in respect of the different villages which were comprised in the various palayams was with a view to permanent settlement being effected with the holders of those estates. The mere circumstance that in calculating the land revenue which should be fixed as part of the settlement proceedings, different percentages were adopted in the case of different villages cannot be taken to result in the creation of an inam grant in the case of such of those villages where the percentage was fixed at a lower figure. We must emphasise that there was no rigid and inviolate rule with regard to the fixation of the percentage, and each village or each area appears to have been differently dealt with according to its then condition. 32. On the same day as that on which Regulation XXV of 1802 was passed, that is,, on the 13th July, 1802, Regulation XXXI of 1802 was also passed. This was intended for examining the validity of titles of persons holding or claiming to hold-lands exempted from the payment of revenue under grants not being Badshahi or royal grants. The Preamble to this Regulation notices that: whereas the permanent settlement of the land-tax has been made exclusive of alienated lands; of every description; it is expedient that rules should be enacted for the better ascertainment of the titles of persons holding, or claiming to hold, lands exempted from the payment of revenue to Government under grants not being Badshahi or royal, and for fixing an assessment on such lands of that description as may become liable to pay revenue to Government.... Reference is made to this Regulation XXXI of 1802 only to emphasise the fact that even at that time the then Government was fully aware of the existence of inamsr and while permanent settlement was in process or in contemplation, they took steps, to investigate the validity of such inam grants. They were further aware that in the proceedings for the permanent settlement of estates, such lands were not taken into consideration in fixing the permanent peishcush and this Regulation sought to bring under assessment such inam grants which were not supported by a valid title or had become disassociated with the purposes for which they were granted. It would be remembered that the grants upon which the appellant relies in the present appeals are those of the years 1800 and 1801. Had it been the intention of the Government and had it been understood by the parties that those grants were grants in inam, bringing these lands within the scope of the permanent settlement, despite the passing of Regulation XXXI of 1802, appears to be wholly inexplicable. Indeed, the Judicial Committee of the Privy Council in explaining the scope of the permanent settlement in Probhat Chandra Barua v. King Emperor (1930) 59 M.L.J. 814 : L.R. 57 I.A. 228 : A.I.R. 1930 P.C. 209, observed: The language used in Regulation I, Article VI, does not, in their Lordships' opinion, mean anything other than : 'You have in the past been liable to have the amount of the jama increased according to the actual produce of the estate increased; to enable the Government to obtain this you have been subjected to frequent investigation to ascertain the actual produce and you have even been deprived of the management of your estates. All this shall cease. You shall have fixity of payment and fixity of tenure. If you improve the revenue of your zamindari, you shall enjoy the fruits of your improvements without fear of the Government claiming that because the revenue produced by the estate has increased the payment you make to Government as condition of holding that estate shall be increased also. The Regulation which their Lordships had to consider was the Permanent Settlement Regulation, Bengal Regulation 1 of 1793, which also sought to effect a permanent settlement of the estates. Clearly it is by reason of the permanent settlement which was effected and the sannad that was granted to the Zamindar of Ettayapur as a result of that settlement in 1803, the entire estate, including the Panchalankurichi villages, was brought within the scope of that settlement, and no claim or objection was at any time advanced that the Panchalankurichi villages were covered by a grant which was in the nature of an inam. Though, in the light of the decisions, the character of the grant made in 1800 and 1801 would certainly not be affected by the subsequent settlement, we refer to this feature only to point out that in the context of the then prevailing state of things, neither party, either the grantor or the grantee, understood those particular grants to be of the nature of an inam. 33. We may at this stage refer to another decision of the Privy Council in Parthasarathi Appa Rao v. Bommadevara Satyanarayana (1918) 36 M.L.J. 279 :. L.R. 46 I.A. 38 I.L.R. 42 Mad. 335 (P.C.). In that case, certain zamindari lands were acquired by the Government under the Land Acquisition Act. In lieu of compensation to which the landholder was entitled, other Government lands in another district, of which lands he had already acquired ryoti rights, were granted to him on his request. These newly granted lands were entered in the Collector's register as zamindari lands. The landholder leased out these lands and when on the expiry of the lease he sought to recover possession, the lessee claimed that he had acquired permanent rights of occupancy by virtue of the provisions of the Madras Estates Land Act. The question arose whether the lands in question could be regarded as part of a permanently settled estate. Their Lordships held: It is obvious that when in the hands of the Government, they were not so. What then has made them acquire the character of a settled estate? The appellant's counsel argued that the effect of the transaction detailed above was to make the lands an estate settled at a peishcush of Rs. 777. But a settlement must be effected formally and there should be some recorded evidence of it. It seems impossible here to point to anything which has that effect. There is admittedly no sannad dealing with the lands in terms of the article of the Regulations. That in the opinion of the learned District Judge was per se conclusive. It is, however, enough to say that there is nothing to which the appellant can point as making a settlement. There being no document and the matter being left to inference to be drawn from the facts, it would be possible to suggest more than one mode of settlement. 34. Reliance has been placed by the learned Advocate-General upon this decision for the converse proposition, viz., that where in respect of certain lands a permanent settlement was in fact effected under Regulation XXV of 1802, and a sannad granted in 1803, and that position has been acquiesced in for the last century and a half, it is too late in the day for the appellant to claim that the original character of the estate, which, according to him, was a grant in inam, must still prevail. Though the converse of a proposition may not always be necessarily true, the argument of the learned Advocate-General was that having agreed to a permanent settlement with regard to the Panchalankurichi lands the appellant can no longer be heard to claim that the lands were granted in inam. Since we have found that the grants were not in inam, it is really needless to examine the soundness of the contention that even if the grants were inam grants, the subsequent acquiescence in the permanent settlement barred the acceptance of the present claim that what had been permanently settled still continued to be governed by an inam tenure. 35. Learned Counsel for the appellant put forward another argument which was that under Section 3 of the Government Grants Act, Regulation XXV of 1802 was ineffective to destroy the title conferred by the grants of the years 1800 and 1801. We are unable to appreciate this argument because it has riot been the contention that Regulation XXV of 1802 altered the character of the grant of its own force. If what is contended for is that a fetter was placed on the legislative competency of the State Legislature to interfere with the terms of a Crown Grant, the wording of Section 3 of the Government Grants Act does not appear to lead to that inference. What Section 3 lays down is that the provisions of any such grant shall be valid and take effect according to their tenor. This section came to be considered by the Judicial Committee in Thakur Jagannath Baksh Singh v. The United Provinces (1946) 2 M.L.J. 29 : (1946) F.L.J. 88 L.R. 73 I.A. 123 : 1946 F.C.R. 111 (P.C.), where their Lordships laid down: If, therefore, it be found that the subject-matter of Crown Grant is within the competence of a Provincial legislature, nothing can prevent that legislature from legislating about it unless the Constitution Act itself expressly prohibits legislation on the subject either absolutely or conditionally. The question arose whether a sannad which had been granted by the Crown conferring full proprietary rights, permanent heritable and transferable rights in the estate, confirmed subsequently by the Oudh Estates Act, could not be affected by a subsequent legislation of a Provincial legislature enacted in the United Provinces Tenancy Act, 1939, which sought to consolidate and amend the law relating to agricultural tenancies and other matters connected therewith. Section 3 of the Grown Lands Act, 1895, was relied on in support of this contention. Their Lordships observed with reference to that section: These general words cannot be read in their apparent generality. The whole Act was intended to settle doubts which had arisen as to the effect of the Trasnfer of Property Act, 1882, and must be read with reference to the general context and could not be construed to extend to the relations between a sannad holder and his tenants. Still less could they be construed to limit the competence of the Provincial Legislature under the Constitution Act. They also observe: It is many centuries since the Courts were invited to hold that an Act of Parliament was ultra vires or invalid in law on the ground that it infringed the prerogative of the Crown. So startling a claim as that made in the present case cannot be upheld. That broad and general principle is sufficient to dispose of the claim. No Court can annul the enactment of a legislative body acting within the legitimate scope of its sovereign competence. 36. This decision of the Privy Council was referred to by their Lordships of the Supreme Court in Maharaj Umeg Singh and Ors. v. The State of Bombay . In that case, reliance was placed upon letters of guarantee given by the Dominion Government to the Rulers of Estates subsequent to the agreements of merger, and it was contended that in the face of this guarantee, the State Legislature of Bombay had no legislative competence to enact any legislation depriving the holders of the jagirs of their rights of ownership. Though Section 3 of the Government Grants Act was not specifically relied upon, the arguments addressed were analogous, and their Lordships of the Supreme Court rejected the contention that the legislative compentency of the State Legislature was curtailed in any manner by such covenants contained in the letters of guarantee. 37. The result of the above discussion is accordingly that the grant of the year 1801 covering the 87 villages in question was not a grant in inam. It was as an unsettled palayam that this area, along with the Ettayapuram Zamindari, itself undoubtedly an unsettled palayam, was settled under the Regulation, and this brought the entire area within the scope of Section 3(2)(a) of the Estates Land Act. 38. We must, however, deal separately with the village of Sivagnanapuram, which was granted in 1800. In this case, the sannad however made no mention of any peishcush payable by the zamindar. It is conceded before us that in the permanent settlement proceedings, this village also was taken in as part of the zamindari and permanently settled. The question would then be whether the title created by the grant of the year 1800 was in the nature of an inam. If the underlying implication was that this village was granted rent-free for the reason that no stipulation with regard to rent was contained therein, undoubtedly, it would be a grant in inam. But it seems to us that we cannot ignore the context of the surrounding circumstances. There is no doubt whatsoever that by the date the East India Company had ceased its practice of granting any inams and that fact finds mention even in decided cases. It was not the policy of the East India Company to make grants of inams and that historic fact cannot possibly be ignored in construing this document. The more so when we find that immediately thereafter even this very village was brought within the scope of the permanent settlement. It necessarily follows that the village Sivagnanapuram cannot, therefore, be treated differently from the other 87 villages. 39. In the result, the appeals fail and are dismissed with costs. One set of counsel's fee. 40. One set of counsel's fee. .