P. Chandra Reddy, C.J.
1. The question referred to the Full Bench is what is the true construction of Section 9(7) of the Madras Estates (Abolition and Conversion into Roytwari) Act (XXVI of 1948) (hereinafter called the Act). The point has arisen with reference to Akkacheruvupadu Shrotriem of Nellore District. After the Act came into operation, the Settlement Officer started an inquiry as required by Section 9 as to whether it is an 'estate' within the meaning of Section 2(7) of the Act.
As the original grant was not available, he determined the point on the basis of the Inam Fair Register. That document is marked as Exhibit C-l. It shows that Acres 224-3 cents of wet land and Acres 62-25 cents of poramboke lands in that village were granted to the ancestor of the third respondent. It also disclosed the existence of a minor inam which was devadayam measuring 24 cents granted for conducting festivals and performing service to the Goddess Ankamma Perantalu.
From the recitals of that document, it is not possible to say the dates of either of the grants. So also the names of the grantor and grantee of that village do not appear in the Inam Fair Register. The main inam and the devadayam were confirmed by two separate title deeds, T.D. Nos. 1757 and 1758 respectively. Having regard to the entries under the various columns, the Settlement Officer held that a. named village was granted in shortriem and it formed an estate us defined in Section 2(7) of the Act.
2. On appeal, this was reversed by the Estates. Abolition Tribunal which took the view that the onus of proving that the minor inam was in existence prior to the grant in question was not discharged by the tenant.
3. The aggrieved tenants filed an application for the issue of a writ of Certiorari or other appropriate writ for quashing the proceedings before the Tribunal. Justice Umamaheswaram who heard this application declined to issue the writ as he was disposed to agree with the conclusions of the Tribunal. The learned Judge based his decision mainly OR Rama Rao v. Linga Reddi (1956) Andh WR 89: (AIR. 1957 Andh Pra 632). In the result, he dismissed the application. The tenants who were dissatisfied with this judgment have brought the present appeal.
4. As the controversy in this appeal centres round the interpretation of some of the sections of the Act, it is necessary to set them out here. The relevant statutory provisions are ;
2(7) " 'Inam estate' means 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."
9(1) "As soon as may be after the passing of the Act, the Settlement Officer may suo motu and shall on application inquire and determine whether any inam village in his jurisdiction is an inam extute or not."
9 (7) "In the absence of evidence to the contrary, the Settlement Officer and the Tribunal may presume that an inam village is an inam estate,"
It is clear from these provisions that the Settlement Officer either suo motu or on the application by persons defining an interest in it has to start an inquiry to determine whether an inam village is an inam estate. In the determination of that question, he may presume that it is an inam estate. At the outset, it must be noted that the presumption enacted in Section 9(7) is a rebuttable one.
It is also plain that the Section does not involve the presumption that every inam constitutes an inam village. The pre-requisite to the applicability of Section 9 (7) is the existence of an inam village. So as a necessary condition for the application of this section, it should be established that the grant was of an inam village. It is for the person who sets up such a contention to make it out. It is only (hen that the presumption can be called in aid.
5. But the crucial question is, what is the extent of the presumption. Does it bear only on the terms of the grant, i.e., whether it is only one waram or both the warams or does it extend to the whole definition of the estate within Section 3 (2) (d) of1 the Estates Land Act as it obtained prior to the Amending Act (III of 1936), i.e., Article XVIII of 1936, which brought within the scope of that section estates comprising both the warams. The true scope of the presumption depends upon the import of the word 'inam village'.
The interpretation of this word is not altogether free from difficulty. The point that calls for decision is whether the word inam' is used in the factual sense of the term or as signifying an estate as defined in Section 2(7) of the Act. We are invited by the counsel for the respondent to hold that the word 'inam village' occurring in Section 9(7) conveys the same meaning as an inam estate in Section 2(7) and the only presumption envisaged is that it is an estate which could be abolished under the Act.
The contention pressed upon us is that it is not sufficient to prove the existence of an inam village, but it should be further shown that the grantor did not reserve to himself any interest in the village. In other words, the burden of showing that the minor inams within the ambit of the village were pre-existing is placed on the tenant. Before we deal with the question of burden of proof, we will advert to other aspects of the matter.
6. It is worthy of note that under Section 3(2) (d) of the Estates Land Act, every inam does not form an estate. That section postulates that an inam estate, in order to fulfil that definition, should have been granted, confirmed or recognised by the Government. It is significant that Section 2(7) of the Act used the words 'inam estate' in contradistinction to inam village".
It is true that the test furnished by these express-sions is not determinative of the full significance of the expressions employed in Section 9(7); but that enables us to conclude that the true content of those words is not the one that is ascribed to it, namely, that its connotation is not the same as that of "inam estate" defined by Section 2(7) of the Act which excludes what we may compendiously call 1936 estates.
7. It is contended by the learned counsel for the respondents that the initial presumption to be drawn under Section 9(7) is co-extensive with the duties laid on the Settlement Officer and that duty is confined only to consideration of the question whether the grant consisted of one waram or both the warams. We do not think we can assent to the theory propounded by the respondents as regards the nature of his duties. He has to decide whether the inam village fulfils all the requirements of Section 3(2) (d) for the purpose of the Act end not merely whether it comprised of only one waram or not.
The argument that a finality attaches to the decision of the Settlement Officer to the extent it boars on the question whether the grant constituted both the warams or only one, and not to the points as to whether the grant included the whole or a named village or whether the minor inams are anterior or posterior to the grant of the village and therefore the jurisdiction of the Settlement Officer is limited only to the adjudication on the first question and if he proceeds to determine the other issue he would be clutching at jurisdiction over that subject-matter, is inadmissible. Merely because the Act does not invest his decision with finality, that does not mean that he is incompetent to investigate into the other matter.
Before an estate could be notified, it should conform to the definition in Section 3(2) (d). The test of finality is not a decisive one in considering the question whether the Tribunal is competent to try certain issues or not, It cannot be predicated that a Tribunal could adjudicate only on matters which are not justiciable. If that were the situation, all civil Courts whose judgments are subject to appeal should be regarded as acting beyond their jurisdiction in trying matters in respect of which right of appeal is provided by a statute. It is sufficient to say that this contention is deviod of any substance.
In our opinion, the words "inam village" are used in the factual sense and there is no justification to read into it the definition of an 'inam estate.' To interpret an inam village as an inam estate as understood in Section 2(7) of the Act is to strain at the meaning of that word. On the other hand, the construction that the word is used in its ordinary signification i.e., as understood in common parlance, represents a reasonable solution of the ambiguity.
8. In this context, it is not out of place to take into consideration the fact that this section is retained in the statute hook even after the passing of Act XVIII of 1957, bringing within the range of the Act all estates defined in Section 3(2) of the Madras Estates Land Act, while the clause which excluded the 1936 inam estates was omitted in the amended Act. That being so, no useful purpose is served by its retention if the interpretation that is placed on that section by the respondents is correct.
It would be otoise. It is the cardinal rule of interpretation of a statute that no provision of a statute should be regarded as a mere surplusage. No part of the statute should be treated as superfluous and it should be assumed that every provision in an enactment has a meaning and significance. That this is a recognised principle of construction of statutes is seen from the following passage in "Craies on Statute Law" (5th Edition), page 98;
" 'It is a good general rule in jurisprudence' said the Judicial Committee in Ditcher v. Denison (1857) 11 Moo PC 324 at p. 337 that one who reads a legal document whether public or private, should not be prompt to ascribe -- should not, without necessity or some sound reason impute -- to its language tautology or superfluity, and should 6e rather at the outset inclined to suppose every word intended to have some effect or be of some use."
We should therefore proceed on the footing that in allowing that provision to remain on the statute book the Legislature thought that its continuance in the statute serves a useful purpose. This also could be inferred from the circumstances that the clause in Section 2(7) of the Act which took 1936 estates outside the ambit of the Act was omitted in Act XVIII of 1957, thus extending the operation of the Act. The moment the distinction amongst the various kinds of the estate disappeared, the Legislature erased it from the statute book.
That the Legislature intended that this should be kept alive and had an object to serve could also be gathered from the fact that the section was suitably amended in the Amending Act. It is also significant that when earlier Section 1(3) of the Act was inter alia amended by the Madras Estates Land (Andhra Amendment) Act of 1956, no changes were introduced in Section 9(7) of the Act, and it was only in 1957 that the words "or hamlet or khandriga granted as inam" was added to Section 9 of the Act. This is a pointer to the same conclusion.
9. Sri Vedantachary attempted to get over this difficulty by arguing that though estates of all Categories are brought within the sweep of the Act, still, the definitions of under-tenure and zamindari estates are retained and this denotes that the omission to delete these provisions is not pregnant with much significance.
This contention overlooks the fact that despite the Act. covering all categories of estates, the distinction between various types of estates is kept uu lor purpose of compensation. The mode of estimating the compensation payable in regard to each of the three kinds of estates is different from the other as could be gathered from Sections 27 to 36 of the Act.
10. We will now turn to the problem as to the onus of proof. In our judgment, the Legislature would not have contemplated to cast the initial onus on the tenant to show that the minor inams existing in the village emanated from the original grantor prior to the main grant. There can be little doubt that the general intention of the statute is to confer rights of occupancy on the tenants of inam villages.
As 'Such, the legislative intent could not have been to place the onus on the tenant in this behalf. It is well-nigh impossible for any tenant to show as to when exactly the minor inams were carved out of the main village. All the records bearing on the point in issue would normally be in the possession of the landlord and the tenant cannot be expected to throw any light on it. Many of them would have been inducted into possession long after the villages were granted in inam.
That being the position, it would be defeating the very object of the legislation if the tenant is required to establish that the minor inams were not later to the major grant. As far as possible, Courts should so construe a provision in an enactment as to give effect to the legislative policy. If this onerous burden is cast on the tenants they would be deprived of all the benefit that is sought to be conferred on them by the legislation. A construction which would have such a result should be avoided.
11. It is a well-known fact that almost all the inam villages have within their ambit minor inams. Almost invariably, there would be no direct evidence as to the date of the grant of the minor inams and often even the date of the major grant. In several cases, the original grants would not be available and a decision as to the character of the village has to be reached with reference to the entries in the Inam Fair Register. Very often, they do not furnish any clue as to the date of either of the grants.
12. It is in such a situation that Courts often assumed that the minor inams were carved out prior to the main grant. Narayanaswamy Nayudu v. Subrahmanyam, 29 Mad LJ 478: ILR 39 Mad 683: [AIR 1916 Mad 263), is one such instance. There, the zamindar of Nuzvid made a rent-free grant of Venkatapuram Agraharam to Bala Venkateswara Swamy. There were some minor inams in the village, namely, archaka service inams. It did not appear from the records produced whether the grant of the village to the temple was made first or whether the minor inams were granted first.
Notwithstanding this circumstance, it was held that the village of such minor inams formed an estate within the purview of Section 3(2)(d) of the Estates Land Act. In negativing the argument that the existence of the minor inams excluded the village from the category of estates, the learned Judges remarked as follows:
"The definition in Sub-section (2), Clause (d) was obviously intended to exclude from the definition of 'Estate' what are known as minor inams, namely, particular extents of land in a particular village, as contrasted with the grant of the whole village by its boundaries. The latter are known as 'whole' inam villages'. The existence of 'minor inams' in whole inam villages is very common and if these inam villages do not come within the definition of 'Estate', almost all the Agraharam, Shrotriem and mokhasa villages will be excluded. This certainly cannot have been the intention of the Legislature".
This decision illustrates the rule as to the burden of proof, namely, that in the absence of evidence to the contrary it should be assumed that the minor inams were anterior to the grant of the village. The same principle was applied, though without discussion, in Lakshminarasimham v. Veerabhadrudu, 19 Mad LW 671 : (AIR 1924 Mad 589). A similar assumption was made by another Bench of the Madras High Court in Bapi-raju v. Vallayya, 1947-2 Mad LJ 298 : (AIR 1948 Mad 213). In that case, it was not possible to say from an examination of the documents as to which of the grants was earlier. It was assumed that the grant of mokhasa was subsequent to the grant of the minor inams.
13. A judgment of Justice Chandrasekhara Ayar, reported in Seshagiri Rao v. Rammayya, 1945-2 Mad LJ 214 : (AIR 1945 Mad 503), accords with the doctrine of the above-mentioned cases. The observations of Subba Rao, J. (as he then was) in Janakiramaraju v. Appalaswami, , are in consonance with the principles enunciated above.
14. A divergent note was struck by Satyanarayana Rao, J., who delivered the judgment of the Bench in (1956) Andh WR 89: (AIR 1957 Andh Pra 632). That case arose under the Madras Estates Land Act and not under Act XXVI of 1948, and the learned Judges had to interpret Section 23 introduced by Act XVIII of 1936 in the Estates Land Act. In dealing with that problem, the learned Judge summed up the position thus:
"Section 23 of the Act no doubt lays down a presumption and was intended to set at rest the conflict of the decisions of the Judicial Committee beginning from Suryanarayana v. Patanna, 36 Mad LJ 585: 45 Ind App 209: ILR 41 Mad 1012: (AIR 1918 PC 169) and Venkata Sastrulu v. Seetharamudu, 37 Mad LJ 42: 46 Ind App 123: ILR 43 Mad 166: (AIR 1919 PC 111). But for the application of the section, the requirement that the grant was of a village or of a named village must first be established. Then comes in the presumption in aid of the tenant that it shall be presumed until the contrary is shown that such village or part, is an estate. Of course, the burden of showing the contrary, in such an event, would be on the landlord."
The law as propounded in this passage is not in any way in conflict with the views expressed above. We have already pointed out that the onus is on the tenant to show that certain lands constitute an estate. But, in the course of the judgment, the learned Judge said that when it was not possible to say whether the minor inam was created first or later to the grant of the village and by the same grantor or the inamdar himself, the question had to be decided according to the incidence of the burden of proof and the Supreme Court had set the matter at rest "by throwing the burden on the tenant who relies upon the Act to establish that the requirements of the section are satisfied." He also observes:
"The tenants in this particular case have not been able to exclude the possibility of the minor inams having come into existence at a later date under grants which might have emanated from the original grantor."
The rule contained in this passage is contrary to the principles set out above and to the dictum laid down by him in an unreported judgment of his in S. A. No. 666 of 1952 (on the file of the High Court of Madras).
15. The ruling of the Supreme Court in District Board, Tanjore v. Noor Mohamed, , does not touch the point that calls for decision in the case on hand. That case arose out of an action laid in a Civil Court by the landlord for an injunction restraining the tenant from disturbing his possession. In that suit, the tenant pleaded occupancy rights on the ground that the suit lands were comprised in an estate.
In dealing with the question whether the lands granted constituted an estate or not, the Supreme Court laid down that the burden of proving that certain lands constitute an estate was upon the party who pleaded it. The Supreme Court was not concerned with the interpretation of Section 9(7) of the Act. That pronouncement is not, therefore, an authority on the question now raised before us.
16. In Ramanadhan Chettiar v. State of Madras, 1957-1 Mad LJ 348: (AIR 1958 Mad 104), Chief Justice Rajamannar and Panchapakesa Ayyar, J., while dealing with Section 9(7) of the Act, thought in similar terms as in (1956) Andh WR 89: (AIR 1957 Andh Pra. 632). But they were inclined to reconsider the matter as would appear from the reference made by them to a Full Bench in Varadarajaswamivari Temple v. Krishnappa Govinda, W. A. No. 108 of 1906; when another occasion arose to consider an identical question. Majority of the Judges who heard the Full Bench Reference expressed the opinion that in an enquiry under Section 9(7) of the Act a decision should be given on the basis of the material and the question of the burden of proof was irrelevant while the Judge who gave dissenting judgment felt that the question of burden of proof was appropriate in the context of enquiries under Section 9 (7) of the Act. However, all the learned Judges seem to have been of the opinion that it is for the landholder to establish that the grantor reserved for himself some interest in the village at the time of its grant. This is what Justice Rajagopalan says;
"I may however permit myself to indicate that what the statutory authority, which has to determine the question has to satisfy itself is, whether there was any acceptable evidence of reservation of any further interest for the benefit of the grantor in the inam Village after it had been granted in mam as a village."
Justice Ganapatia Pillai expressed himself thus on this issue:
"It is for the tenant to show in the first instance that an inam village was granted as a whole village or as a named village as laid down in Janakiramaraju's case, : it would then be
for the opposite party or for the party contending contra to establish that the village in question falls outside the definition contained in Section 3(2)(d) of Madras Estates Land Act either by showing that minor inams not comprised in the grant were granted contemporaneously with or subsequent to the grant of the village or by reason of any other cause."
We may also mention here that the view of the referring Judges in this matter accords with the proposition stated above.
17. For all these reasons we conclude that the burden of proof on the issue is upon the landholder and not upon the tenant. Finally, our answer is that if it is shown that the grant was of a whole or a named village, the presumption contemplated by Section 9(7) of the Act is invoked. The reference is answered accordingly.
18. I have had the advantage of perusing the judgment delivered just now by my lord the Chief Justice and I regret with great deference that I feel constrained to take a somewhat different view of the matter. The question referred to the Full Bench is:
"What is the true construction of Section 9(7) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Act XXVI of 1948)?"
The facts which have given rise to the reference have been set out in the judgment of my Lord the Chief Justice and also in the order of the Division Bench that made the reference and it is unnecessary to repeat them. The question in the writ appeal to which the Division Bench addressed themselves was whether in proceedings under Section 9 of the Madras Estates (Abolition and Conversion into Ryotwari) Act (1948), hereinafter called 'the Abolition Act.'
"The burden of proof lies upon the tenants to establish that a minor inam was in existence prior to the main grant or that it was a subsequent grant by the main inamdar."
Umamaheswaram, T., had dismissed the writ petition in the view that the burden of proof lay on the tenants, following the ruling in (1956) Andh WR 89: (AIR 1957 Andh Pra 832) which was based on the Supreme Court decision in . On appeal by the tenants the Division Bench expressed that it was an unbearable and impossible burden on the tenants which frustrated the object of the Legislature. They were of the opinion that the burden of proof turned on the construction of Sections 2(7), 9(1) & 9(7) of the Abolition Act and that if the expression 'inam village' in Section 9(7) was understood in its ordinary and factual sense most of the difficulties would disappear. By the ordinary and factual sense of the expression, they meant a village including minor inams which has been granted in inam.
Thus although the question referred to us has been widely worded, the real point is whether, on a true construction of Section 9(7) of the Abolition Act, the expression 'inam village' therein may be held to have been used in a factual sense, which relieves the tenants of their burden of proof for the purpose of Section 3(2)(d) of the Madras Estates Land Act,
19. It is necessary to refer in this connection to Section 1(3) of the Abolition Act, which is in the following terms:
" 'It' (the Abolition Act) applies to all estates as defined in Section 3, Clause (2) of the Madras Estates Land Act (1908) except inam villages which became estates by virtue of the Madras Estates Land (Third Amendment) Act, 1936."
The Abolition Act does not purport to amend the Madras Estates Land Act (1908), and it is clear from sub-s. (3) of Section 1 that the operation of the Act is limited to estates that existed as such under the provisions of Section 3(2) of the Madras Estates Land Act (1908), subject to the exception of what are popularly known as '1936 inams', an exception which was deleted by the Andhra Act XVIII of 1957.
20. The expression 'inam village" is also used in Section 3(2)(d) in the Madras Estates Land Act (1908), and the import of the word 'village' there has been the subject of numerous judicial pronouncements, which have been reviewed in . The most authoritative decision is that of the Supreme Court in . Construing Section 3(2)(d) Mahajan J., who delivered the leading judgment said:
"The question for decision is whether the grant in the case to the predecessor-in-interest of the appellant was of a whole inam village, and if the grant did not incorporate the whole village area, whether the grant was so expressed as to be of a named village and any area excluded from it had been already granted in service or other tenure or reserved for communal purposes within the meaning of Explanation 1.
In other words, the grant must either comprise the whole area of a village or must be so expressed as tantamounts to the grant of a named village as a whole even though in fact it does not comprise the whole of the village area. In this ktter case in order to come within the scope of the definition in must fulfil the following conditions: (a) the words of the grant should expressly (and not by implication) make it a grant of a particular village as such by name and not a grant of a defined specific area only; and (b) that the area excluded had already been granted for service or other tenure; or fc) that it had been reserved for communal purposes. x x x x
Even when the grant is of a particular area in a village, the village has to be named; but in my opinion that is not complying with the conditions mentioned in Explanation 1 to Section 3(2)(d) of the Act. Under the Explanation in express terms a grant has to be of a village hy name and if the grant is expressed in those terms and it is discover ed that it does not incorporate the whole area of the village and certain area has been excluded from it, even then the grant will he deemed to be of an estate provided the area excluded has already been granted on service or other tenure or given for communal purposes.
In Janakirama Sastri v. Jagani Gopalan, , it was
observed^ "any inam village" in Section 3 (2) (d) means "a whole village granted in inam and not anything less than a village, however big a part it may be of that village." In my opinion, this is the true construction of Section 3(2)(d) and the Explanation has a similar meaning. It clarifies the point that notwithstanding the exclusion of certain lands in which the grantee has reversionary interest from the grant, nonetheless it remains a grant of a whole village provided it is so expressed. The other learned Judge, Chandrasekhara Ayyar J., said :
"Explanation I was added by the Madras Act (II of 1945) .... Sub-clause (d) as it originally stood, was susceptible of the construction that if it was proved that the grant did not comprise a whole inam village either because there were parcels carved out earlier from the village, or because of any reservations made by the grantor, what was not an 'estate.' In two Bench decisions of the Madras High Court, this view was actually taken. (See Ademna v. Satyadhana Thirtha Swami, 1943-2 Mad LJ 289: (AIR 1943 Mad 187) and Suri Reddi v. Agnihotrudu, (1943) 2 Mad LJ 528: (AIR 1943 Mad 764), The Legislature felt that this was not satisfactory inasmuch as such villages were as a matter of fact treated as 'estates' and the cultivating tenants therein were regarded as having acquired permanent rights of tenancy. It was to meet this situation that the Explanation was added by Madras Act II of 1945 with retrospective effect from the date on which the Madras Estates Land (Third Amendment) Act (XVIII of 1936) came into force."
Thus by reason of Explanation I, the word "village became a term of art and the grant of an inam village in Section 3(2)(d) means that either (1) the grant incorporates the whole area of a particular village and not anything less or (2) the grant is by express words (and not by implication) of a particular village as a whole by name.
In the latter case, parcels of land may have been carved out from the village by way of minor inams granted on service or other tenure, but this must have been prior to the major grant; parcels of land may have also been reserved for communal purposes. The second alternative held by Mahajan, J. to tantamount to the first, because the grantee of the major grant would naturally have the reversionary interest in the minor inams which alone were available for being granted at the time of the grant.
The point to be noticed is that whenever minor inams are found to exist in an inam village, in order that it might be the grant of an 'inam village' under Section 3(2)(d) read with Explanation I of the Madras Estates Land Act (1908), one of the two following conditions have to be satisfied; (1) either they must have been granted by the major grantee or (2) they must be grants on service or other tenure which had existed as such prior to the major grant.
The proposed factual sense of the expression 'inam village' cuts the Gordian knot and dispenses with the proof of this stubborn condition. It differs in this respect from the true sense as explained by their Lordships of the Supreme Court. The question is whether in the context of Section 9 (7) of the Abolition Act, this factual sense may nevertheless be adopted. I may observe that Section 2 (1) of the Abolition Act says:
"In this Act, unless there is anything repugnant in the subject or context,--
(1) all expressions defined in the Estates Land Act shall have the same respective meanings as in that Act with the modifications, if any, made by this Act."
No modification of the expression 'inam village' has been made by the Abolition Act. I shall deal later with the contention of the learned Government Pleader that the meaning of the expression as understood in Section 3 (2) (d) of the Madras Estates Land Act is repugnant to the context of Section 9 of the Abolition Act, for the present, I shall assume that there may be a repugnancy.
What would be the result of Section 9 (7) of the Abolition Act, construing the expression in its factual sense, i.e., as comprising the grant of a major inam and within the limits of which there are minor inams which are not proved to satisfy the requirements of Section 3 (2) (d)? The Settlement Officer is authorised to presume, in the absence of evidence to the contrary, that such an inam village is an "inam estate' as defined in Section 2 (7) of the Abolition Act. In other words he becomes entitled to give a decision that such a village is an 'estate' within the meaning of Section 3 (2) (d) of the Madras Estates Land Act, not being a '1936 inam'.
But as a matter of fact it may not be an estate at all, because ex hypothesi there is no knowing that the requirements of Section 3(2) (d), Madras Estates Land Act have been satisfied. His decision would not touch the question whether the inam village is an estate and would not be of any use to enable the Government to apply the provisions of the Act.
21. It has been authoritatively held in a number of cases that the decisions of Tribunals mentioned in Section 9 does not deprive the aggrieved party of his right of suit in a civil Court for an adjudication on the question whether a village is or is not an estate. This was the view taken in Venkatanarasayya v. State of Madras, , and the proposition has not been questioned before us by me learned counsel. The latest decision brought to our notice was that of a Full Bench of the Madras High Court in W. A No. 108 of 1956: .
All the three Judges who constituted the Full Bench concurred in the view that the aggrieved party has a right of suit. Rajagopalan J., who spoke for the majority of the Full Bench said:
"While the Settlement Officer and the Tribunal, if an appeal is preferred against the decision of the Settlement Officer, have exclusive jurisdiction to decide whether an inam village is an inam estate, neither has. he been invested with a similar exclusive jurisdiction to decide whether a given village is an estate as defined by Section 3 (2) (d) of the Estates Land Act. That decision is on what could be conveniently termed a jurisdictional issue. If the village in question is not an estate at all, the statutory authority the Settlement Officer (it may not be necessary to specify at each stage the other statutory authority also, the Tribunal) cannot give himself jurisdiction to decide whether it is an inam estate within the meaning of Section 2 (7) of the Abolition Act.
It should be obvious that in such a case the Settlement Officer cannot give himself jurisdiction to decide whether the inam village is an inam estate by a wrong decision on the jurisdictional issue. Whether the village is an estate at all is open to challenge in other proceedings, for example in a suit in a civil Court, as well as in proceedings under Article 226 of the Constitution. The finality accorded by Section 9 (4) (c) of the Abolition Act will not apply to a decision of the Tribunal on the jurisdiction issue.
Similarly Section 9 (6) of the Abolition Act will not cover a decision of the Settlement Officer or that of the Tribunal on the jurisdictional issue, whether the inam village was an estate within the meaning of Section 3 (2) (d) of the Estates Land Act. So, 3 what was not an estate at all is wrongly held to be an estate and is therefore held to be an inam estate as defined by Section 2 (7) of the Abolition Act, neither Section 9 (4) (c) nor Section 9 (6) of that Act can bar an investigation afresh in other proceedings of the question, whether the village was an estate within the scope of Section 3 (2) (d) of the Estates Land Act.
To put it in other words, determination of the jurisdictional issue whether an inam village was an estate, is incidental to the exercise of the jurisdiction under Section 9 of the Abolition Act vested in the statutory authorities. The Act itself did not provide any machinery for a 'final' determination of that question.
That was rectified when the Legislature enacted Madras Estates (Supplementary) Act, 1956 (XXX of 1956)".
Section 8 of Act XXX of 1956 runs:
"In deciding the question whether any inam village or a separated part of an inam village was or was not an estate within the meaning of the Estates Land Act as it stood before the commencement of the Madras Estates Land (Third Amendment) Act, 1956 (Madras Act XVIII of 1936) it shall be presumed, until the contrary is proved, that such area or part was such an estate."
"Thereafter, of course, there was no need for the limited presumption permitted by Section 9 (7) of the Abolition Act, By this amendment Section 9 (7) of the Abolition Act stood repealed."
There is no legislation in Andhra Pradesh corresponding to Madras Act XXX of 1956. If a Settlement Officer declares an inam village to be an inam estate on the above mentioned factual construction of Section 9 (7) and without even entering into the question whether the inam village is an estate at all, the only result of his decision would be to drive the inamdar to a suit and foment, litigation in the Civil Court. It is impossible to attribute such a purpose to the Legislature.
22. I am of opinion that the true construction of Section 9 (7) of the Abolition Act is that it refers only to inam villages to which the Act applies under Section 1(3), i.e., to inam villages which either by themselves constitute or form portions of an estate as defined in Section 3 (2) of the Madras Estates Land Act. Section 9 of the Abolition Act assumes that within the local limits of the Settlement Officer's jurisdiction there is such an inam village and vests in him the function of enquiring and determining whether it is an 'inam estate' as defined in the same Act.
The expression 'inam village' is not used as a term of art but in its ordinary sense, of a whole village held under a beneficial tenure, either free of revenue or at a reduced revenue. The noun 'village' means a village as defined in Section 3(19) of tile Madras Estates Land Act. The adjective 'inam' means briefly a beneticiai grant. (See bundraraja Iyengar's Land Tenures. (1916) Chapter VI and Wilson's Glossary). Sub-section (7) of Section 9 authorises him to make a presumption, in the absence of any evidence to the contrary, only that an inani village situated in the area of an estate is an inam estate.
An inam village situated in the area of an estate may be either an inam estate satisfying the require ments of Section 3(2)(d) of the Madras Estates Land Act (1908) or an under-tenure estate coming under Section 3(2)(e) of that Act or a portion of a zamindari estate coming under Section 3(2) (b) of that Act. Generally speaking, if the inam was excluded from the assets at the time of the permanent settlement and the grant has been made, confirmed or recognised by the Government, then the inam village would come under Section 3(2) (d). If not, of which certain darimila grants and mokhasas furnish instances, then it would come under Section 3(2) (e) where the grant is irresumable, or under Section 3(2) (b) where the grant is resumable. The compensation which has to be determined under Section 39 of the Abolition Act by the Director of Settlements in accordance with Sections 27 to 36 of that Act, is different for these three categories of Estates. Under Section 41, the Govern ment have to deposit the compensation in the office of the Tribunal in order to obtain a discharge.
Doubts have often arisen in regard to inam villages as to whether they are estates under Section 8(2) (d) or under Section 3(2) (e) of the Madras Estates Land Act. See for instance (1947) 2 Mad L.T. 298: (AIR 1948 Mad 213); ; (1945) 2 Mad L.J. 214): (AIR 1945 Mad 503). There may also be disputes in regard to whether an inam village comes under Section 3(2) (b) or Section 3(2)(e), as for instance in respect of those situated in the four western zamindaries (Venkatagiri, Kalahasti, Karvetinagar and Sydapur) since the Government had no right to and could not investigate into the conditions of the inams in those estates. (Secretary of State v. Raja of Venkatagiri, 41 Mad LJ 624: 48 Ind. App. 415: (AIR 1922 P.C. 168).
In order to put an end to such controversies, which could raise problems for the determination and deposit of compensation by the Government, Ss. 9 and 10 of the Abolition Act appear to have been enacted. Section 9 for the determination of inam estates and Section 10 for the decision as to the dates of creation of under-tenure estates. It is true that in the Madras Full Bench decision already referred to, Rajagopalan, J., was persuaded to take the view that the purpose of Section 9 was to enable the Government to decide whether or not it should issue the notification under Section 3 of the Abolition Act.
But there is no machinery provided by the Abolition Act for the determination of zamindari estates and under-tenure estates before they are notified. With all respect to the learned Judges, I am inclined to think that the object of Section 9 is to enable the Government to obtain a binding decision in respect of inam estates for the purpose of determining the comparatively more favourable rates of compensation fixed under Sections 31 to 35 of the Abolition Act.
When there exists an inam village situated in a local area which is either assumed without contradiction or admitted by the persons interested or found after adjudication to be an estate the Settlement Officer is empowered by Section 9(7) of the Abolition Act to presume that it is an inam estate. Such a presumption which is allowed to be made in the absence of evidence to the contrary does not in any way conflict with the provisions or the Madras Estates Land Act.
It does not also adversely affect the landholder as he would otherwise be entitled to a less favourable amount of compensation, unless it happens to be a pre-settlement under-tenure estate in which even under paragraph 1 of Section 36 of the Abolition Act he gets the same compensation as for an inam estate. The division of estates into three categories is a creation of the Abolition Act and there-tore the decision of the Tribunals constituted under the Act, though rather summary in character, is given a statutory finality.
Thus the true construction of Section 9(7) of the Abolition Act is that it applies only to inam villages situate in estates to which the Act applies under Section 1(3). This harmonises with the other provisions of the Abolition Act and the general principles of law. In my opinion, the expression inam village' in Section 9(7) of the Abolition Act is used in its ordinary sense of a whole village held Under a beneficial tenure. I would answer the question referred to us accordingly.
23. It is contended by the learned Government Pleader that the above construction is repugnant to the context, because it would render Section 9(7) otiose and frustrate the very object of the Legislature. It was pointed out that Section 9(7) has been retained even after Section 1(3) of the Act was amended by Andhra Act XVIII of 1957 making the Abolition Act applicable also to 1936 inams, besides hamlets and kandrikas granted in inam.
It was also pointed out that Section 9(7) was held in certain decisions to merely enact a presumption that the grant is of both the warams. Sec Kunjaram Iyer v. State of Madras (W.P. No. 833 of 1951-Unreported). But I have already indicated in the discussion above, that doubts may arise as to whether an inam village situated in the area of an estate is an inam estate or an under-tenure estate or a zamindari estate and that the object of Section 9 of the Abolition Act is to provide a summary method of determining which estates are inam estates for the purpose of fixing the compensation payable under the Act.
If this is the object of Section 9, it cannot be maintained that Section 9(7) became otiose after the enactment of Andhra Act XVIII of 1957. It may be that Inam Registers are not available in a particular case or that there are other lacuna in the evidence in spite of its being established that the inam village is situated within the area of an estate. In such circumstances, the presumption under Section 9(7) enables the Settlement Officer and the Tribunal to give a binding decision that the estate is an inam estate.
With regard to the object of the Legislature it is true that as observed by Venkatarama Ayyar, J. in State of Madras v. Srinivasa Ayyar, , that the object of the Abolition Act is to establish direct relation between the Government and the tiller of the soil and to abolish all intermediate tenures, the rights and obligations in respect or which are regulated by the Madras Estates Land Act, But it is desirable to bear in mind in this connection the caution expressed by the Judicial Committee in Narayana Raju v. Suryanarayadu, (1939) 2 Mad L.J. 901; 66 Ind. App. 278: ILR 1940 Mad 1: (AIR 1939 P.C. 244), that arguments from the presumed general intention of the Act are treacherous and inconclusive.
It is not as if the object of the Abolition Act was to sweep away intermediate tenures by a single measure. Even in ryotwari areas there are intermediaries between the Government and the tiller of the soil. Even when the Abolition Act was originally passed in 1949, the 1936 inams were left over for being dealt with on a future date. When the Legislature in its wisdom subsequently thought fit to enlarge the scope of the Act, it has extended the ambit of the application of the original Act as by the Andhra Acts XXXV of 1956 and XVI and XVIII of 1957 giving them such retrospective effect as was considered necessary.
It may be noticed in this connection that the Andhra Bill of 1956 sought to bring in not only hamlets and kandrigas but also portions of villages not less than half of the total extent of the village which were granted in inam within the definition of estates to be abolished.
But when the Bill emerged as Act XXXV oi 1956, it covered only hamlets and kandrigas and not major portions as such of villages. Courts are concerned only with the object of the Legislature as expressed in the statute. If inam tenures intended to be abolished are found to be unaffected on a true construction of the statute, I have no doubt that the Legislature would rectify the lacuna by amending legislation.
24. The question of burden of proof in proceedings under Section 9 of the Abolition Act, although it gave rise to the reference, has not been actually referred to us. The order of reference implies that in the view of the learned Judges of the Division Bench, but for the construction of Section 9(7) in a way that relieves the tenants of the burden, the question of burden of proof has been correctly decided in (1956) Andh. W.R. 89: (AIR 1957 Andh Pra 632). although it is an unbearable burden. It is not as if their Lordships of the Supreme Court in , were not alive to the difficulties created by the burden, because Mahajan, J. said:--
"It is true that in the absence of actual and authentic evidence as to the nature of the original grant a report contained in the Inam Register has to be given importance, subj'ect to the qualification that the entries in the register have been accurately made and carefully written and they give a complete picture of the history of the grant and show how it originated and in what terms it was expressed."
Basing himself on the decision of the Supreme Court, Satyanarayana Rao J. who spoke for the Division Bench in (1956) Andh, W.R. 89, at p. 98: (AIR 1957 Andh Pra 632 at p. 638) said:--
"Whether a tenant raises the plea that the lands were in an estate and therefore ryoti and the civil court has no jurisdiction or the tenant relies upon the statute in answer to a suit by the landlord either for an injunction, as in the case before the Supreme Court or even for a declaration as in the present case, the burden of proof would undoubtedly be on the tenant to establish the case which he put forward either to exclude the jurisdiction or to negative the right of the plaintiff. The burden will be on him to show that the grant was either a grant of a whole village or grant of a named village."
The learned Government Pleader demurs to the application of this view of the burden of proof, because it is expressed to apply to cases where the tenants are defendants and not to proceedings like those under Section 9 of the Abolition Act where the tenants might not be so arrayed.
25. In this connection reference was made to (1957) 1 Mad LJ 348: (AIR 1958 Mad 104), where a Division Bench of the Madras High Court consisting of Rajamannar, C.J., and Panchapakesa Ayyar, J., took a similar view of the burden of proof in proceedings under Section 9 of the Abolition Act following the view in (1956) Andh. W.R. 89: (AIR 1957 Andh. Pra. 632).
It was pointed out that subsequently in W.A. No. 108 of 1956 since (FB), the same learned Judges
distinguished the burden of proof cast on the tenants by the Supreme Court in (1952) 2 Mad L.J. 586, as being based on the rule that it is for the party who pleads that a civil Court has no jurisdiction to establish that fact and on this ground referred the question of burden of proof in proceedings under Section 9 of the Abolition Act to a Full Bench.
All the learned Judges of the Full Bench affirmed this ground of distinction of . The majority of the Full Bench held that proceedings under Section 9 of the Abolition Act do not amount to a LIS, that the Settlement Officer functions merely as an administrative Tribunal and that the rule of burden of proof as a determining factor for the ultimate decision has no application to the proceedings of the Settlement Officer.
On the ground that the Tribunal had founded its decision on the irrelevant consideration of the burden of proof as to the time of the creation of minor inams, they remanded the matter to the Tribunal. Rajagopalan, J., who spoke for the majority of the Full Bench said:--
"I am of the view that in proceedings under Section 9 of the Abolition Act before the Settlement Officer, whether they were initiated suo motu or on an application by any person interested, the question whether a given inam village was an estate as defined in Section 3(2) (d) of the Madras Estates Land Act read with Explanation I thereto, and the question, should it arise, whether the minor inams in the said village were granted before or after the grant of the major inam where the major grant was of the village as such, have to be decided by the Settlement Officer on the material gathered at the enquiry -- whether such material was placed before him by any of the parties ntitled to participate in the enquiry or whether it was collected by himself--and not with reference to any question of onus, whether the burden be of pleading or of proof."
The learned dissenting Judge, Ganapatia Pillai, J., held that the rule as to burden of proof applies to proceedings before the Settlement Officer, but placed the burden of proof on the landholder thus:--'To start with there is no presumption either way that a particular extent of land is an inam village. It is for the tenant to show in the first instance that an inam village was granted as a whole village or as a named village as laid down in Janakiramaraju's case ; it would then be for the opposite party or for the party contending contra to establish that the village in question falls outside the definition contained in Section 3(2) (d) of Madras Estates Land Act either by showing that minor inams not comprised in the grant were granted contemporaneously with or subsequent to the grant of the village or by reason of any other cause."
I am respectfully in agreement with the passage from the judgment of the majority of the Full Bench which I have quoted just above. It really applies the rules enacted in Sections 101 and 102 of the Evidence Act to which reference was made by the learned Judges. Section 102 cannot be availed of, but the principle of Section 101 and the definition of 'proof' in Section 3 of the Evidence Act apply.
Section 101 gives effect to the ancient rule founded on considerations of good sense that the party who substantially asserts the affirmative of an issue has to prove it. It is well-settled that the effect of the rule cannot be circumvented by manipulating the words of the issue. Phipson in his book on "The Law of Evidence' (9th Edition, p. 33) Says--I have omitted the authorities cited--
"In deciding which party asserts the affirmative, regard must of course be had to the substance of the issue and not merely to its grammatical form, which latter the pleader can frequently vary at will; moreover, a negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party's case, the proof of such allegation rests on him."
The facts which have to be determined by a Settlement Officer on the jurisdictional issue where it arises are: (1) whether the grant was of the whole area of the village or a named village, (2) whether there are minor inams in the village and (3) whether the minor inams were granted by the major grantee or whether they were grants on service or Other tenures which existed as such prior to the major grant. Whoever asserts the existence of these facts has to prove them by evidence and in the absence of evidence they must be found to be not proved.
The law does not authorise any initial presumption in respect of any of these three facts when they are disputed. The Settlement Officer cannot base his decision on the ground that the burden of proof has on one party or the other. He has to base it on the ground of the existence of proof or the absence of proof of one or more of the aforesaid facts.
It will be seen that the result of the decision in (1956) Andh, W. R. 89: (A.I.R 1957 Andh. Pra. 632), is not materially affected because it is the tenants who generally assert the nature and the time of creation of minor inams and if they fail to prove it by evidence where it is disputed that fact must be found to be not proved.
26. Reference was made to the following passage in 29 Mad L.J. 478: ILR 39 Mad 683 at p. 685: (AIR 1916 Mad 263 at p. 264).
"The appellant contends that inasmuch as there are these minor inams in the same village, it would not be said that the Venkatapuram Agraharam is a village of which the land revenue has been granted as inam within the meaning of Section 3, Clause (2) (d) of the Act, his contention being that inasmuch as the land revenue on some of the lands in the village had been granted as inam to third parties, it cannot be said that the temple is the grantee of the revenue of that village.
We are unable to agree in this contention. The definition in Sub-section (2), Clause (d) was obviously intended to exclude from the definition of 'Estate' what are known as minor inams namely, particular extents of land in a particular village as contrasted with the grant of the whole village by its boundaries. The latter arc known as "who e inam villages." The existence of "minor inams" in whole inam villages is very common and if these inam villages do not come within the definition of 'Estate' almost all the Agraharam, Shrotriyam and Mokhasa villages will be excluded.
This certainly cannot have been the intention of the Legislature. These minor inams are generally granted for services to be rendered to the village or to the owner and that seems to be the nature of the minor inams in this case. In all the documents the temple is described as the owner of the whole village and in these circumstances the burden is upon the plaintiff to show that the grant was only of the revenue of a portion of the lands in the village and he has not put in evidence the inam register which would have supported his case if true. We therefore disallow this contention," In ray opinion this does not in any way conflict with the view I have taken. Nobody can demur to the proposition that the mere existence of the minor inams does not by itself take away the inam village from the operation of Section 3(2) (d) of the Madras Estates Land Act. But the further question as to when the minor inams came into existence did not apparently arise for consideration in 29 Mad. LT 478 : ILR 39 Mad 683 at p. 685 : (AIR 1916 Mad 263 at p. 264).
The actual decision was based on the grounds (1) that the minor inams in the case seem to have been granted for service to be rendered to the village or to the owner (2) that the temple was described as the owner of the whole village in all the documents, (3) that in these circumstances the burden was upon the land-holder to show that the grant was of only a portion of the revenue of the village and (4) that adverse inference arose from the fact that thy landholder did not put in evidence the Inam Register which would have supported his case if true.
The learned Judges took into consideration all the circumstances of the case including the adverse inference that arose under Section 114, Illustration (g) of the Evidence Act.
If their Judgment is taken to mean that the time of the creation of the, minor inams was immaterial, that would be against the Legislature's view of the pre-existing law when it introduced Explanation I to Section 3(2) (d) and the Supreme Court's view in . The law does not raise any initial presumption as to the nature of the date of the creation of minor inams. But any presumption of fact which may be legitimately drawn in the circumstances of a particular case before the Settlement Officer may naturally be availed of by him in arriving at his decision.
Mohammed Ahmed Ansari, J.
27. I agree with His Lordship the Chief Justice and have nothing further to add.