B HARIHARAMUTHU PILLAI Vs. RAMA SUBBALAKSHMI NACHIAR AVL

JUDGEMENT

(1.) Common questions of law arise in these second appeals which arise out of suits filed in the Court of the District Munsif of Ambasamudram by the respondent for arrears of rent alleged to be due from the appellants in respect of lands belonging to kattalais attached to several temples in the Urkad Zamindari. The respondent who is the Zamindarini is the hereditary trustee of these kattalais attached to the temples. The appellants admittedly are in possession of the properties concerned in the several suits as cultivating tenants. Several pleas were raised in defence. But it is sufficient for the purpose of these appeals to mention only two of these pleas, namely, (1) that the zamindarini was not competent to maintain the suits because the Urkad zamindari had been notified and taken over by the Government under Madras Act (XXVI of 1948) and (2) that in any event the appellants are entitled to the benefit of Madras Act (XXX of 1947) and the plaintiff is not entitled to recover at the rates claimed by her but at reduced rates only. The learned District Munsif decreed the suits as prayed for and on appeal the learned Subordinate Judge of Tirunelveli has confirmed the decrees of the learned District Munsif. Hence these appeals.

(2.) S. Ramachandra Ayyar, learned Counsel for the appellants, pressed before us the above two pleas raised by the defendants. It is necessary for him before he succeeds in his contention to establish that the lands in suit remained all through as part of the Zamindari till the estate was taken over by the Government. This he has signally failed to do. The learned Subordinate Judge has recorded in his judgment that the learned advocate for the appellants before him conceded that the lands in suit were minor inam lands. It is also clear from the evidence that the inams were pre-settlement. In the extract from the Fair Inam Register, Exhibit A-1, there is reference to an account of 1800 (fasli 1210) and the settlement in respect of the Urkad Zamindari was in April, 1803. It follows, therefore, that when the zamindari was permanently settled on the predecessor-in-interest of the plaintiff-respondent, the suit lands were not included in the permanently settled estate because they were minor inams which had already been granted. Having regard to the scheme of the Permanent Settlement and the provisions of Regulation (XXV of 1802), it is impossible to hold that the income from these minor inam lands would have been taken into account in arriving at the peshkush fixed for the zamindari. These inam lands would clearly fall within the 'Lakhiraj' lands referred to in Section 4 of Madras Regulation (XXV of 1802). The only way in which Mr. Ramachandra Ayyar, appellants' counsel, wanted to escape from the position was to contend that what the proprietor must be deemed to have done is to assign his melwaram right in respect of the suit lands to the kattalais. The fallacy here is that except in pannai or homefarm lands, the zamindar would not have been entitled to both the melwaram and the kudivaram and therefore all that the zamindar could assign to the grantee would be his melwaram right. It is not the case of the appellants that the suit lands were at any time pannai lands. The entries in the Inam Fair Register, may be, do not establish beyond doubt that both the warams were granted to the temples. Even so, the lands would not continue to be part of the zamindari once they came within the scope of the inam grant. Pre-settlement inams, whether they were of both the warams or only the melwaram, were excluded from the estates settled on the zamindars, at the time of the Permanent Settlement. It is impossible to accept the argument of Mr. Ramachandra Ayyar that though melwaram might have been granted in inam to the temples for the kattalais, the kudiwaram continued to remain as part of the zamindari. It is obvious that a minor inam cannot be an estate within the meaning of the Estates Land Act and therefore, falls outside the scope of both Madras Act XXVI of 1948 and XXX of 1947. When the zamindari was notified and taken over by the Government under Madras Act XXVI of 1948, pre-settlement inams, whether minor or major, could not in law be deemed to have been notified and taken over as part of the zamindari. They remained outside the scope of such notification. There is therefore no substance in the plea raised by the appellants that it is only the Government that could claim to recover the arrears of rent in respect of the suit lands and not the inamdar, namely, the temple represented by the zamindar as the hereditary trustee.

(3.) For the above reasons the second plea also must be overruled, namely, that the appellants are entitled to the benefit of the provisions of Madras Act XXX of 1947 That Act does not apply to minor pre-settlement inams. As we have already held these lands cannot be treated as part of the zamindari and therefore any notification reducing the rents in respect of holdings included in the zamindari cannot apply to the suit lands. The appellants admit that there is no notification specifically reducing the rents in respect of the suit lands and indeed there could not have been any such reduction under that Act. In our opinion, there is no real defence to the suits for the recovery of arrears of rent.