P.S. Kailasam, J. -
(1.) The Judgment of the Court was delivered by Kailasam J - -The question that arises for consideration in all these Writ Appeals is the scope and effect of the proviso to Sec. 11(b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act XXVI of 1948) (hereinafter referred to as the Act). Writ Appeals Nos. 74 and 112 of 1965, are against the judgment of Veeraswami J. (as he then was) in Writ Petition Nos. 26 and 221 of 1963, where he expressed his opinion on the proviso thus:
Under the proviso, what the Government has to do is to see whether the land in question is a ryoti land, secondly, whether the person claiming patta was admitted into possession by the landholder, thirdly, whether he was so admitted on or after the specified date, and fourthly, whether the transaction was bona fide and was supported by consideration. If these matters have to be answered in the affirmative, there would be no further discretion vested in the Government to deny ryotwari patta.
Alagiriswami J. in Writ Petition Nos. 2406 and 2862 of 1966, out of which Writ Appeals Nos. 384 and 533 of 1969 arise, did not agree with the view of Veeraswami J. (as he then was). Alagiriswami J. was of the view that the proviso proceeded on the basis that after the estate had been taken over, all rights in the estate would become vested in the Government, though certain existing rights are saved, and that under the substantive part of Sec. 11 ryots are entitled to patta in respect of lands which are included or should properly have been included in the holding, but the Government have got an absolute discretion in cases falling under the proviso. In Writ Petition No. 2862 of 1966, Alagiriswami J, reiterated his views expressed in Writ Petition No. 2406 of 1966.
(2.) In order to understand the scope of the proviso to Sec. 11(b), it is necessary to consider the relevant Ss. in the Madras Estates Land Act (I of 1908) and the Madras Estates (Abolition and Conversion into Ryotwari) Act, (XXVI of 1948). The preamble to the Madras Act XXVI of 1948 runs as follows: - -
Whereas it is expedient to provide for the repeal of the Permanent Settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the Province of Madras, and the introduction of the ryotwari settlement in such estates it is hereby enacted as follows.
The object of the legislation is (i) to provide for the repeal of the permanent settlement (ii) the acquisition of the rights of landholders in permanently settled and certain other estates in the province of Madras, and (iii) the introduction of the ryotwari settlement in those estates. It may be noted that while it is intended to acquire the rights of the land holders, there is no mention about the acquisition of the rights of the ryots in ryoti lands. Under the Abolition Act, provision is made for determination of the compensation payable to the land -holders. There is no provision for payment of compensation to the ryots' interest, as obviously it has not been the intention to acquire the rights of the ryots. The Act itself makes provision for the grant of a ryotwari patta to ryots. Whether by virtue of the provisions of the Act the rights of the ryots vest in the Government or not, the intention was not to deprive the ryot of his, interest in the land. Sec. 3(b) of the Act runs as follows: - -
the entire estate (including all communal lands and porambokes; other non -ryoti lands; waste lands; pasture lands; lanka lands; forests mines and minerals; quarries; rivers and streams tanks and irrigation works; fisheries and ferries shall stand transferred to the Government and vest in them, free of all encumbrances; and the Madras Revenue Recovery Act, 1864, the Madras Irrigation Cess Act, 3865, and all other enactments applicable to ryotwari areas shall apply to the estate.
It may be noted that though the definition is an inclusive one, the detailed specifications as to what the entire estate consists of is carefully listed. But ryoti lands are left out from the definition. The proviso to Sec. 3 provides 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. The proviso, therefore, cuts down the right of the Government to dispossess any person of his land for which he is prima facie entitled to a ryotwari patta. If such a person is a ryot, pending the decision of the Settlement Officer as to whether he is actually entitled to such patta, the Government shall not dispossess him. The meaning of the word ryot in the proviso should be given only a restricted meaning as a person on the land. Ss. 11 and 12 deal with the grant of a ryotwari patta to the ryot who is entitled to a ryotwari patta, and for the lands in the Zamindari estate in which landholder is entitled to ryotwari patta.
The purpose of the Act as seen from the preamble is the repeal of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates in the province and the introduction of a ryotwari settlement. The provision for the grant of ryotwari patta to the ryots had been construed as recognising the pre -existing rights to occupancy, and not as conferring any fresh rights. There had been considerable divergence of judicial opinion as to the effect of Sec. 3 of the Act which provided that with effect on and from the notified date and save as otherwise expressly provided in the Act, the entire estate stood transferred to the Government and vested in them free from all encumbrances. In two decisions in State of Madras v/s. Karuppiah Ambalam, (1959) 1 M.L.J. 185 and Soosai Udayar v/s. Andiyappan, (1959) 1 M.L.J. 195, Ramachandra Iyer J. (as he then was) was of the view that after the estate vested in the Government under Sec. 3, the only right the ryot had was to obtain a patta. The same view was expressed by a Bench of the Court in State of Madras v/s. Kamakshia Pillai : (1960) 1 M.L.J. 276 where it was held that the entire estate vested under Sec. 3(b) and the estate would certainly comprise the tank and the right to fish which is also held to be immovable property. In Seethalakshmi v/s. Krishnaswami : (1961) 1 M.L.J. 87 a Bench of this Court held that the ownership of the private lands continues with the erstwhile zamindar with a change in the nature of the tenure, and that a charge created against the interest of the land holder regarding private lands would continue to subsist in respect of the private lands. In State of Madras v/s. Parisutha Nadar : (1961) 2 M.L.J. 285 a Bench of this Court held that the Act does not create new rights of ownership and the grant of ryotwari patta under the Act is not a conferment of rights by way of grant or conveyance, and the obtaining of ryotwari patta by the persons entitled to such patta under the Act can, if at all, be only in recognition of the pre -existing rights of ownership. A ryotwari patta, it is observed, in respect of lands in a Government village is not a title deed, but is only a bill for rent. In Mustafa v/s. Udayanachi Ammal I.L.R. :  1 Mad. 728, Veeraswami, J. (as he then was) in dealing with the question regarding the vesting of the Pannai or private lands was of the view that the ownership in Pannai lands continued with the landholder. He held that the continuance of such ownership with the quondam landholder though under an altered tenure is quite in keeping with the intention of the Act which was directed to, the abolition of the permanent settlement, the acquisition of the rights of landholders in permanently settled and certain other estates and to bring into being ryotwari settlement in such estates. In State of Madras v/s. Ramalingaswamigal Madam I.L.B. :  2 Mad. 742. a Bench of this Court consisting of Srinivasan and Sadasivam JJ. held that there is no provision under Sec. 11 of the Act read with proviso 1 to Sec. 3(2) of the Act for the ascertainment of the character of the land, namely, whether it is ryoti land or communal land and any decision whether a land is ryoti land or not is only for the purpose of granting a ryotwari patta and it is only an incidental determination for the purpose of granting patta. The Court held that as there is no machinery in the Act to determine whether a land in an estate is a ryoti land or communal land, the Civil Court will not be precluded from going into that question in a properly constituted suit. Dealing with the question as to the effect of vesting under Sec. 3 of the Act, the Court took the view that the entire estate vested in the Government and the word used in the Sec. is wide enough to include the vesting of a ryoti land of a ryot and the private land of a landholder. This view, it may be observed, is not quite in consonance with the views taken by the earlier Bench decisions in Seethalakshmi v/s. Krishna -swami : (1961) 1 M.L.J. 87, State of Madras v/s. Parisutha Nadar : (1961) 2 M.L.J. 285, and Md. Mustafa Marakayar v/s. Udayanachi Ammal I.L.R. :  1 Mad. 728. The Bench based its view on the decision of the Supreme Court in Kumararaja of Venkatagiri v/s. State of Andhra Pradesh : (1960) 1 M.L.J. 28 (S.C.) where the contention that the intention of the Act was not to interfere with the right of persons other than the landholders on the estate was not accepted. The Supreme Court observed that on the estate being notified, the entire estate is to stand transferred to the Government and all rights and interests created in or over the estate, before the notified date by the principal or any of the landholder must, as against the Government, cease. The Bench found itself unable to accede to the contentions of the learned Counsel in full and find that the rights of a ryot in a ryoti land are not affected by the Act and they do not vest in the Government. The same Bench in a later decision in State of Madras v/s. Doraipandian : I.L.R.  3 Mad. 623 while stating that the contention of the Government Pleader that even the ryot's interests in the land is destroyed and a fresh right is conferred upon him by reason of the other provisions of the Act is no doubt supported by decisions, held that another view is also possible that in so far as the ryoti lands and ryots in lawful possession of them under patta engagement with the landholder are concerned, the Act did not disturb their right or possession, though the machinery established for the grant of ryotwari patta was intended only to secure those rights in the shape of different tenure. After examination of the various provisions of the Act, the Court expressed the view that the object was to remove the intermediary from the scene and to establish a direct relationship between the State as the overlord and the ryot as the cultivator and it would not have been the intention of the Act to deprive the ryot of his title to or possession of the holding and it is quite possible to look upon the other provisions relating to the grant of ryotwari pattas as a machinery only intended to confirm that pre -existing rights of the ryots though in a different form. The learned Judges decided to express any definite view on this matter. The decision in Kumara rajah of Venkatagiri v/s. State of Andhra Pradesh,  1. M.L.J. 28 (S.C.) in which the Bench baaed its decision in State of Madras v/s. Ramalingaswamigal Madam (1) could be explained On the fact that the decision was rendered by the Supreme Court while dealing with the provisions of Sec. 20 of the Act which regulated the rights of lessees and others under the landholder. The transaction entered into by the landholder creating any right in any land including rights in any forest, mines or minerals, quarries, fisheries or ferries not governed under Sec. 18 or 19 was deemed to be valid and enforceable against the Government. There are three provisos to the Sec. which under certain circumstances make the transaction entered into by the landholder not binding on the Government. While referring to the policy of the Act and Sec. 20, the Supreme Court observed that the assumption that the policy of the Act is not to interfere with rights of persons other than the landholder is not borne out by the substantive provisions of the Act. The Supreme Court was not directly dealing with the question as to whether the rights of a ryot in a ryoti land vested with the Government. In State of Madras v/s. Ramalingaswamigal Madam : I.L.R.  2 Mad. 742, Srinivsan and Sadasivam JJ. though were of the view that what vests in the Government is the entire estate and the words used in the Sec. (section 3) are wide enough to include the vesting of the ryoti land of a ryot and the private land of a landholder, the Bench had second thoughts about this question in the subsequent decision. Though there is a conflict of judicial opinion as to the effect of vesting under Sec. 3, the preponderance of the view is that the interest of the ryot in a ryoti land does not vest in the Government. In this background, the scope of the proviso to Sec. 11 will have to be examined.
(3.) Sec. 11 of the Act provides that every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of all ryoti lands, which, immediately before the notified date, were properly included or ought to have been properly included in his holding. Sec. 11(b) refers to lanka lands. The proviso to the Sec. reads as follows: - -
Provided that no person who has been admitted into possession of any land by a landholder on or after the 1st day of July 1945 shall, except where the Government, after an examination of all the circumstances otherwise direct, be entitled to a ryotwari patta in respect of such land.
There is no specific provision in the Act prohibiting or invalidating the admitting into possession of persons by the landholder after 1st July 1945. While under the main clause a ryot in an estate will be entitled to a ryotwari patta in respect of a ryotwari land which was properly included or ought to have been properly included in his holding before 1st of July 1945, in the case of persons who have been admitted into possession on or after 1st July 1945, no person shall be entitled to a ryotwari patta except where the Government, after examination of all the circumstances otherwise direct. Therefore, in cases where persons who have been admitted into possession after 1st July 1945 they will not be entitled to ryotwari patta except when the Government otherwise direct. The proviso does not state what are the circumstances that are to be taken by the Government for directing that a person admitted into possession after 1st of July 1945, would be entitled to a ryotwari patta. The learned Government Pleader placed before us a Government Notification requiring certain particulars to be furnished by persons claiming patta. Obviously the nature of the particulars required would suggest that in dealing with the lands to which persons have been admitted into possession on or after 1st of July 1945 - - the Government was proceeding on the basis that the lands had absolutely vested in them. We have already pointed out that the assumption that the entire rights of a ryot had vested in the Govern -ment under Sec. 3 of the Act is not justified and the rights of the ryot in respect of his ryoti land stand unaffected by the legislation. But this is different from stating that the ryots will be entitled to a ryotwari patta in the hands of the Government. Obviously in a case in which the admitting into possession of a person by the landholder on or after 1st of July 1945, was a sham transaction and never intended to be acted upon and made for the purpose of defeating the objects of the Act the Government would be entitled to take the stand that the landholder continued to be in possession of the lands and his rights vested with the Government under Sec. 3 of the Act. It is unnecessary for us to attempt to enumerate the circumstances under which the Government may refuse to grant a patta. Whether a refusal by the Government to grant a patta is justified or not will depend on the particular facts of the case. In this view, we are unable to wholly agree with the views of either of the learned Judges Veeraswami J. (as he then was) and Alagiriswami J., in Writ Petitions Nos. 26 and 221 of 1963 and Writ Petition Nos. 2400 and 2862 of 1956 respectively. While under the Sec. it is necessary that the person who is entitled to a ryotwari patta should be a ryot and the land a ryoti land and the ryot admitted into possession by the landholder it may not be necessary that the transaction should be supported by consideration. There may be transactions like bona fide gifts to the members of the family or servants who had faithfully served the landholder with the intention of genuinely conferring occupancy rights, and we do not see how those transactions though unsupported by consideration could be invalidated. Under what circumstances the Government can refuse to grant a ryotwari patta, it is not for us to enumerate. We are unable to agree with the view taken by Alagiriswami J., that the Government, have an absolute discretion in all cases falling under the proviso. All transactions that took place after 1st July 1945, cannot be said to be void thereby vesting the lands absolutely on the Government.;