Decided on April 17,1953



Venkatarama Aiyar, J. - (1.) This is an application on behalf or the Kalahastheeswaraswami Devasthanam for the issue of a writ of mandamus prohibiting the State of Madras from taking possession of the village of Kalahaati. This village formed part of the ancient Zamin-dari of Kalahasti which is one of the impartible estates included in the Madras Impartible Estates Act II of 1904. In the year Virodhikrit (1791-92) the Rajah of Kalahasti granted the village in inam to the temple. On 16-9-1896 the then Zamin-dar of Kalahasti executed a mortgage over this and other villages. There was a suit to enforce this mortgage O. S. No. 14 of 1909 on the file of the Subordinate Judge's Court, North Arcot, and a decree was passed therein for the sale of the hypotheca. A new zamindar having succeeded to the estate, he filed O. S. No. 8 of 1911 in the Court of the Subordinate Judge, North Arcot, as hereditary trustee of the Kalahastheeswaraswami Devasthanam, for a declaration that the mortgage dated 16-9-1896 in so far as it related to the village of Kalahastl was not binding on the temple, as the same was executed for the personal debts of the zamindar. That suit was decreed, the court holding that the grant of the inam was true and that the mortgage was not binding on the temple. This decision was affirmed on appeal to this Court In -- 'A. S. No. 283 of 1911 (Mad) (A)'. The Zamin-dari of Kalahasti is One of the estates abolished by Madras Act XXVI of 1948. On 12-12-1950 the State of Madras notified the village of Kalahasti as a zamindarl estate and it is the validity of this notification that is in question in this petition. The contention of the petitioner is that it should be notified as an undertenure and not as a zaminestate.
(2.) For a proper appreciation of the contentions involved in this petition, it is necessary to exa-mine the scheme of the Act as regards notifica-tion of estates. Section 3(b) provides that on not fication an estate shall in its entirety stand trar ferred to the Government and vest in them. The estates to which the Act applies are classed under Section 2(3) into three categories, zamindari, under-tenure or inam estate. Under Section 2(7) an inam estate is defined as meaning, all inam villages which fall within Section 3(2)(d) of the Estates Land Act excluding those which became estates under the 1936 amendment. Under Section 2(15) an undertenure estate means all estates which fall within the definition of estates under Section 3(2)(e) of the Estates Land Act. The definition of a zamindari estate under Section 3(18) includes estates falling within Section 3(2)(a), (b) and (c) excluding estates which fall under Section 3(2)(e). This three-fold classification of estates has a material bearing on three matters-the amount of compensation which the proprietor is entitled to get under the Act; the right to get the ryotwari patta for lands situated within the estate; and the procedure to be adopted for determining certain rights of holders of inam estates and under-tenures. Under Section 37 the compensation payable is calculated with reference to a scale of "basic annual sum". The principles on which that sum is determined vary with the three classes of estates. Section 27 lays down the principles on which the basic annual sum should be calculated for zamindari estates, Section 31 for inam estates and Section 36 for undertenure estates. It may in general be stated that the compensation payable will be higher in the case of inam estates and under-tenure estates created before 13th July 1802 than in the case of zamindari estates, or under-tenure created after that date. With reference to the right to get ryotwari pattas, a similar difference is observable with reference to inam estates and undertenure created prior to 13th July 1802 on the one hand and zamindaris and undertenures created after that date, on the other. Then again while the ascertainment of what are zamindari estates presents no problems, the question whether an estate is an inam falling within the scope of the Act is often one of difficulty, depending for its decision on whether the grant was of both the warams in an entire village. Section 9 of the Act creates a special machinery for the determination of this question. Under that section the Settlement Officer is empowered to decide suo motu or on the application of parties whether the inam village is an inam estate as defined in the Act or not. Against this decision there is an appeal provided to a Tribunal. Section 10 enacts special provisions with reference to undertenure estates. The landlord has to apply to the Settlement Officer within three months of the notification of an estate as undertenure for a determination of the question, whether the estate was created before the permanent settlement or after. The decision of the Settlement Officer is open to appeal to the Tribunal. This classification of the estates into three categories is, it is clear, mutually exclusive and it would make all the difference in the right of the parties whether a particular estate is classed under the one head or the other.
(3.) Now, the point for determination is whether the village of Kalahasthi which was granted in Inam to the Kalahastheeswaraswami Devasthanam is, as notified by the Government on 12-12-1950, a zamindari estate as defined under the Act. The contention of the petitioner is that it is really an undertenure and should have been notified as such. The contention on behalf of the State is that the village of Kalahasti was separately registered and assessed to separate peshcush on 3-41932 under the provisions of Act I of 1876 and that therefore it was rightly notified as a zamindari estate. This contention proceeds on a mis-apprehension as to the true scope and effect of separate registry. Regulation XXV of 1802 under which estates were permanently settled provided that proprietors should be at liberty to make transfers only with the consent of the Government and that unless such transfers were registered at the office of the Collector and peshcush separately fixed, the entire estate should be liable for the payment thereof. It was held in -- 'Venkateswara v. Alagoo Moot-too', 8 Moo Ind App 327 (PC) (B) that the effect of this section was not to avoid the transaction as between the transferor and the transferee but to save the rights of the Government. One consequence of this was that the lands in the possession of transferees of email portions of zamindaris, were often proceeded against for the recovery of the revenue payable to the Government and considerable hardship was experienced. It was to remedy this state of affairs that Madras Act I of 1876 was passed. Under that Act a right was conferred on the alienee to have the portion transferred to him separately registered and the proportionate peishcush payable thereon fixed. Thus what the Act does is not to confer any title on the transferee but to recognise a pre-existing title and to grant relief in the matter of liability to pay the peishcush. The transferee derives his title not from the separate registry, but the transfer.;

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