Venkatarama Ayyar, J. -
(1.) This is an application under Article 226 of the Constitution for the issue of a writ of: certiorari to quash the decision of the Estates Abolition Tribunal, Mathurai in R. A. No. 369 of 1950. The point for decision is whether the village of Ekkattu Thangal is an Inam estate within the meaning of Section 3(2)(d), Madras Estates Land Act liable to be noted under the provisions of the Madras Act 26 of 1948. The property which is the subject-matter of this dispute is a parcel of land of the extent of about. 179 acres and 35 cents. That was originally granted by the Nawab of Arcot to one Kasim Ali Baig subject to the condition that it should not be alienated. In 1781, the descendants of the grantee became indebted to one Shamier Sultan and in discharge of the debt sold the property to him in. 1787 and put him in possession. Shamier Sultan then applied to the Government for recognition of his title and on that as appears from G. O. No. 2778 of 1913 marked as Ex. Q in Ex. R-6, the Government resumed the inam and granted a lease in his favour for a period of 99 years on 30-9-1796. The lease deed contained a prohibition against alienation and there were also other covenants for breach of which the Government were entitled to forfeit the lease and re-enter on the lands. There was also a provision for renewal of the lease for a further period of 99 years. No rent was payable under the lease, but subsequently a quit rent of Rs. 21 per annum was fixed. Notwithstanding the covenant against alienation, the heirs of the grantee effected various transfers of the lease and in 1895 when the period mentioned in the lease expired it had become vested in one Mr. Raju. There was an application in 1912 by Raju for renewal of the lease in his favour. That was granted and on 7-9-1914 a formal document of lease was executed by the Government in his favour. That deed provided for the payment, of rent and there were also covenants relating to the use of the property demised. There was also a clause empowering the Government to cancel the lease for non-payment of rent or breach of any of the covenants and to re-enter on the land. There was no covenant against alienation on 13-2-1935 the present petitioner obtained a usufructuary mortgage of the properties from the descendants of the grantee and in execution of a decree against them, purchased the property and thus succeeded to their interests under the deed dated 7-9-1914- After the enactment of the Madras Act 26 of 1948 proceedings were started under Section 9 for determining whether the village of Ekkattu Thangal was an Inam estate as defined in Section 3 (2)(d), Estates Land Act. The Settlement officer held that what was granted under the deed dated 7-9-1914 was only a leasehold interest and that it was not an estate which fell within the purview of the Act. There was an appeal by the ryots to the Estates Abolition Tribunal, Mathurai, which held by a majority that the grant under the deed dated 7-9-1914 was of an estate and that it was liable to be notified under Act 26 of 1948. It is the correctness of this conclusion that is challenged in this petition. The principal contesting respondents are the ryots.
(2.) The term "inam" means in its ordinary & accepted sense a grant of a freehold interest. The properties may be transferred free from any obligation; or they may be burdened with payment of nominal amounts or performance of some service and they may be liable to be resumed in certain events, but subject to these incidents the ownership in the properties must pass to the grantee. Where the deed does not divest the transferor of his ownership in the properties, there can be no inam, however extensive the interest which might be conveyed to the transferee. A lease of property therefore cannot be said to be a grant of an inam. It merely transfers the right to possession to the lessee for the period of the lease. The ownership of the properties, however, continues to remain with the lessor and this is so even if the lease is a permanent one. It may be that in, such a case there is not much of a difference in substance between a lease and a transfer of ownership. But the distinction is in law clear and fundamental. As observed by Markby in his "Elements of law"
"however numerous and extensive may be the detached rights, however insignificant may be the residue, it is the holder of this residue of right whom we always consider as the owner." In this case, the lease is not even a permanent one. It is limited for a period of 99 years. It must automatically come to an end at the expiry of that period. The lease deed contains a provision for forfeiture in case of breach of covenants and reentry by the Government. In fact this right was exercised by the Government on two occasions. On 5th May 1925 the Government terminated the lease for default in payment of the rent and this order was cancelled on 22-10-1926 on the application of the lessee. In that order the Government observed
"he is, however, informed that should any default occur in future, the lease will be terminated and the land immediately re-entered upon." There was again a cancellation of the lease by the Government on 1-10-1935 and a direction to the Revenue authorities to enter upon the land; and this order was withdrawn on 2-3-1936. Thus it is seen that the document dated 7-9-1914 which is a formal document executed by the British authorities is described as a deed of lease, in its substance and contents it is a lease and the Government have also enforced their rights as lessors under that deed. It is difficult to see how such a grant can be held to be an inam estate as defined in Section 3(2)(d), Estates Land Act.
(3.) The conclusion of the Tribunal that the deed dated 7-9-1914 could be construed as an estate is based on the decisions in --'Secy, of State v. Srinivasachariar', AIR 1921 PC 1 (A): -- 'Moosa Kutti v. Secy. of State', AIR 1920 Mad 413 (B) and -' Venkataramamurthi v. Venkayya', AIR 1949 Mad 304 (C). In -- 'AIR 1931 PC 1 at p. 2 (A)', the point for decision was whether a shrotriamdar was entitled to work mines within his village. It was held by the Privy Council that without express words a mere shrotriam grant did not carry with it the right to minerals. They observed:
"A grant of this description may be no more than an assignment of revenue and even where it is or includes a grant of land, what interest in the land passed must depend on the language of the instrument and the circumstances of each case; it was not a complete transfer for value of all that was in the grantor; the interest bestowed was merely something carved out of his larger interest which still remained in him as a reversion; the grantor was the ruling power, the grantee a Brahmin whose assiduous prayers were engaged; a jodi was reserved and the purpose of the grant was to ensure the subsistence of the grantee by the appropriation to his use of "the produce of the seasons each year...." It does not accord with the scheme of such a grant that any person taking under it should have the power to consume its subject-matter by quarrying operations, even if an interest in land was created." There is nothing in these observations which supports the contention that a lessee is to be treated as an inamdar. The actual decision was that even an inamdar will not be entitled to work the mines, unless that right is expressly granted. In --'AIR 1920 Mad 413 at p. 414 (B)', the Government had granted a lease of land to the defendants for a period of three years. The lease deed contained a prohibition against erection of buildings. For breach of this covenant the Government cancelled the lease and sued in ejectment. The defendant resisted the suit on the ground that as the lease deed was not registered, it was inadmissible in evidence. The Government relied on Section 90(1)(d). Registration Act which exempted
"sanads, inam title deeds and other documents purporting to be or to evidence grants or assignments by Government of land or of any interest in land" from the provisions of the Act. It was held by Seshagiri Aiyar and Bakewell JJ. dissenting from -- 'Munshilal v. Gopi Ballabh', AIR 1914 All 120 (D) that the words "other documents" in Section 90(1)(d) should not be construed 'ejusdem generis' with the words "sanads and inam title deeds"; and the lease deed in question would be "other document" contemplated by the section. This conclusion is clearly right. The learned Judges then proceeded on to state as follows:
"Further even applying the principle we are not satisfied that a lease of land is not of the same character as a sanad. As the learned Governmen Pleader pointed out there are sanads by Government and Zamindars which grant property on favourable terms. Therefore the idea implied in a sanad is not that of a gift without reservation." It will be noticed that the learned Judges do not say that a lease deed is of the same character as an inam title deed. They only hold that it can be treated as a sanad. These observations do not afford any ground for the contention that a mere lease is an inam estate as defined in Section 3(2) (d), Estates Land Act. In --'AIR 1949 Mad 304 at p. 305 (C)', the question arose with reference to a deed which was styled as a permanent cowle. It was contended by the landlord that a lease could not be an inam estate as defined in Section 3(2)(d), Estates Land Act and that therefore the tenants had no occupancy rights. In overruling this contention Panchapagesa Sastri J. observed:
"It seems to me that the plaintiff's title under this document is to a permanent undertenure of a portion of a village on a small annual payment of Rs. 2 described as kattubadi in the document. The reference to the services rendered by Subba Rao to the proprietors the small amount of kattubadi fixed having regard to the extent of the lands given, which is about 8 acres approximately, the provision that Subba Rao shall be entitled to enjoy the property hereditarily with full powers of alienation, and the further significant clauses that the only right which the proprietors reserve to themselves is a right to recover only the sum of Rs. 2, the Kattubadi amount, and that they 'shall have no right to the land at any time' would all seem to indicate that this is an inam grant and not a mere lease of jeroyti land on favourable terms. On this interpretation of the document, it follows that the grantee is merely a landholder within the meaning of the Madras Estates Land Act and that the defendants in possession will be the ryots who are entitled to occupancy rights." It will be seen that these observations recognise that if the grant was one merely of leasehold right, it will not be an inam estate and is therefore really an authority against the contention of the respondents. What the case decided was that a deed should be construed not according to the name which is given to it, but according to its substance as disclosed by its contents. There cannot be the shadow of a reason for construing the lease deed dated 7-9-1914 as an inam grant. I must accordingly hold, differing from the Tribunal that the grant comprised in the deed dated 7-9-1914 is not an estate as denned in Section 3(2)(d), Madras Estates Land Act and it is, therefore, outside the operation of Madras Act 26 of 1948.;