a S.CJi. StlPR:lllME COURT R1ilPo:tt'l's of the orthodox Dattak adoption or an affiliation altogether different from Dattak adoption. We therefore express no opinion on this question.
The appeal is dismissed with costs. Appeal dismissed. SUNKAVILLI SURANNA AND OTHERS v. GOLI SATHIRAJU AND OTHERS (K. N. WANCHOO, K. c. DAS GUPTA, J. c. SHAH and RAGHUBAR DAYAL, JJ.)
Occupancy Rights-Ryot in possession before permanent Bettlement-Terms as to commencement of tenancy lost in anti- quity-Presumption as lo melvaram and kudirnram.,–Right. of ryots in Z•imindaries-Madras Estates Land Act, 1908 (Mad. 1 of 1908), s. 6.
The lands in question which were within the permanently settled Zamindari in the then Presidency of Madras, belonged to T who, during his lifetime, was cultivating the lands. He died in 1885 leaving behind, inter alia, three daughters.
After the death of the three daughters, the last having died in 1935, the sons of one of them instituted a suit against the descendants of the other two for partition and separate
possession of a third share, int,er alia in the lands in question on the footing that T owned occupancy rights in the lands. The suit was resisted on the plea that T had no proprietary right in the. lands, that he was only an annual tenant of the Zamindar, that after his death the lands were held on similar tenure by different members by his family and that occupancy rights were acquired by those members of his family who were in possession of the lands when the Madras Estates Land Act, 1908, came into force in 1908. There was no evidence .to
sbow that the occupation of the lands by T commenced under the Zamindar, nor was there any evidence as to the terms on which he or his predecessors were inducted on the lands, the commencement of the tenancy and the terms thereof being
lost in antiquity, but he and his descendants were proved to have continued in possession of the lands uninterruptedly till the enactment of the Madras Estates Land Act, 1908. · Iield, that in cases in which a ryot's holding ·is ·not
shown to have commenced oubsequent to the permanent settle- ment, the presumption is that Zamindar was only the holdet Giswa'mi Shru V •l/o!hal1lji v. Goswamini Shru .}[ahalaxmi B•lwji Maharaj
Das Gupta J. Sepuml" 18. SUllkavilliSurattna …. ' ""·Oofi Salhii'llju Shila J. SUI!REill: OOVRT REPORTS (19112] .. · … of the mclvaram being the a3signec of the Government revenue, and that rho kudivaram in the land belongc<l to the ryot who \\·as entilll'd to ·continue in poso;ession as Ion·~ as he paid the rent regularly; and that thi• principle was applicable equally in a suit bct\vr.en persons claiming under the ryot as in a suit against the rynt by the Zamindar.
Ca<e law relating to the rights of ryots in Zamindaries in~theJMadras Presidency reviewed. H.td, further, that Twas the holder of the occupancy rights in the lands, that these rights devolved upon his
successors and that the said occupancy rights '''ere not acquired by virtue of the provisions of the Madras Estates Land Act, 1908. CrvIL APPELLATE JURISDICTIOJiO: Civil Appeal No. 424 of 1958.
Appeal from the judgment and decree dated April 25, 1950, of the llfadras High Court in A. S. No. 67 of 1947. K. Bhirnasankamrn and K. R. Chaudhuri. for the a ppellantg. 3. T. V. R. Tatachari, for respondents Nos. l to
P. Ram Reddy, for respondent Ko. 9. Jf. R. Krishna Pill<1i for respomlont No. 24. 1961. Septemher 18. Tho Judgment of the Court was delivered by SHAII, J.-Onc Thammiah had two· l!ons-
Gangaraju and Ramayya-and four daughtcrs-,- Ammanna, Sesbamma, Gangamma and Bhavamma, of these, the two sons and the daughter Ammanna died during Thammiah 's life time. Gangaraju left
him surviving his widow Chetamma and Ramayya his· widow Vonkamma. Arnmanna was survived by her son Rudrayya, who was brought up by Thammiah. Thammiah died in 1885, Soshamma in 1904, Gangamma in 19:l0 and Bhavamma in 1935.
After tho death of Bhavamma, Pnddarnju (herein- after called the plaintiff}, son of Gnngamma filed Suit No. 53 of I !J44 in the court of. the Subordinate • >–t. 3 S.C.R. .Judge at Rajamundhry against the descendants of
Seshamma apd Ammanna for a decree for partition and separate possession of a third share in 17 lands, described in Schedule B to the plaint as "agricul· tural land and ·measuring in the aggregate 51 acres
72 cents in Patta No. 12 in village Pandalpaka in Pitbapur Zamindari" and in Schedule '0' described as three houses with sites thereof in village Pandal· paka. To this suit Jaggarayudu and Paddaraju,
sons of Venkataraju-brother of the plaintiff-were impleaded as defendants 31 and 32. The plaintiff claimed that Thammiah owned occupancy rights in the ryoti lands in the Pithapuram Zamindari
and that after Thammiah's death the lands were managed with the permission of the plaintiff and his brother Vcnkataraju, in the firnt instance, by the two daughters-in-law of Thammiah-Chetamma
and Rammanna, son of Seshamma and their "possession and management was on behalf of heirs and persons entitled to maintenance out of the estate" and that the right to sue for partition
accrued on the death of Bhavamma on March 18, 1935 . The suit was resisted by the descendants of Seshamma and Ammann a principally on the plea that in the lands described in Schedule 'B' Thammiah had
not proprietary right and that occupancy right there· in accrued to Rudrayya and Veeriah (husband of Seshamma) by virtue of the Madras Estates Lands Act, 1908. It was also pleaded that Thammiah
had made an oral will devising his estate in fav•mr ofVeeriah~who w:is his illatom son·in-law–and Rudrayya in equal shares. This plea about the oral will was negatived by the Court of First Instance
and the High Court and need no longer be consi- dered, because it is not canvassed before us in this appeal. The trial Court held that Thammiah had no proprietary interest in the lands in Schedule 'B'
and on that view decreed the plaintiff's claim for partition of the homes and sites described in Schedule 'C' only· and awarded a third share to him, 19111 Swikavilli Suranna .v4 .. ,< __ -;
Ooii Sal~iraju :…-….,.~-' Shah J. .JNI SunAaBiJ/i Surann.a. v. G~i StU.hir•ju '__,_ S"411J, SUPR!<!ME couiit REPORTS another third share to Ramanna and the remaining third share collectively to defendants 31 and 32-
sous of Venkataraju. In appeal, the High Court of Madras modified tho decree of the trial court holding that in the agricultural lands Thammiah had occupancy rights which on his death devolved on his surviving
daughters, and directed that those lands be also partitioned, and that a third share be awarded to the plaintiff arnl a third share to defendants 31 and 32 together with mcsnc profits from March 18, 1935,
the date of Bhavamma's death. With certificat~ under Art. 133, this appeal is preferred by the descendants of Scshamma and Ammanna. The principal question which falls to be deter·
mined in this appeal is whether Thammiah had, as claimed by the plaintiff, oecuprmcy rights in the lands described in Schedule •B', or as the contesting defendants contend, Thammiah was an annual
tenant of the zamindar and that after his death tho lands were held on similar tenure by different members of the family of Thammiah and that the occupancy right was acquired by Rudrayya and
Veeriah by virtue of the Madras Estates Lands Act, 1908. The lands are within a permanently settled zamindari under l\Iadras Regulation XXY of 1802, and it is common ground that Thammiah was culti·
vating the entire area of the lands during his life ;,ime. There is no ovidencc indicating that his possession was ever disturbed during his J!fc.time. There is again no evidence about the commence-
ment of the occupation of Thammiah or his pre· deceesors : commencement of their occupation is therefore lost in antiquity. The lands are described in the various documents, to which we will presently
refer, as "jeoroyat.i lands"', Thammiah a.s "jecroyati ryot", and after hie cloath his daughters-in-law and grandson Ra.manna were similarly described. Three documentJ!-Exts. D-1, D-2 and D-3-
which catablish that Thammiah was cultivating the landB throw important light on the problem under ., … f 3 S.C.R. discussion. Exhibit D-1 is a muchilika dated July 1, 1883, executed by Thammiah in favour of the
zamindar. Exhibits D-2 and D-3 are similar muchilikas dated respectively August 10, 1884, and July 15, 1885. Each of these muchilikas is in respect of the seventeen pieces of lands described
in Schedule 'B' and the 'cist' settled is Rs. 419/8/-. The terms of the three muchilikas are identical. Thammiah is described in the muchilikas as "jeero· yati ryot" and the lands are described as "jeoroyati
pampus". It is recited in the muchilikas "I have executed and delivered this muchilika agreeing that I should pay the said cist amount of Rs. 419/8/- every fasli according to the instalments mentioned
hereunder to the Officials on your behalf and to obtain rMeipts; ……………… that during the last year of the term, I should not raise gingelly or chiru- veru crop on these pampus but that I should leave
sufficient land for purposes of garden cultivation and seed beds; that I should not cut down any kind of trees without your permission; that I should not raise permanent gardens or construct houses on
these lands without your permission; that I should not cause damage to these lands so as to make them unfit for cultivation purposes; that if at the end of the term you should lease out these pampus
to anyone, whom you like, for a cist amount advantageous to you, I should not raise objection thereto; that if you had leased out these lands to other ryots for the ensuing year after the
expiry of the term, and if the said ryots should carry on necessary works for purposes of cultivation during the ensuing year by way of ploughing seed-beds, sowing seeds and planting
tender sugarcane even before the expiry of this term, I should leave sufficient land to them without rais- ing any objection whatsoever." By the covenants of the muchilikas Thammiah had undoubtedly under-
taken not to raise certain crops, nor to cut trees, nor to put up permanent constructions and had also undertaken to give certain facilities to other tenants Sunkavilli Surttnna v.
Goli Sathiraju Shah]. . -.,,J:aPilli S11Tonnt1 v. Viii Snthiraj" ShGhlJ. [196~] inducted in the lands by the zamindar. The evidence docs not justify the inference that Thammiah was
inducted on tho land by Ext. D-1. There is even no evidence that the land was acquired from the zaminder by the members of Thnmmiah's family or that the ancestors of Thammiah were not on th11.
land before the zamindari rights accrued to the zamindar. It is also not disputed that land in zamind'lries in the Madras Presidcncv were even held in occupancy right by many ryots
before the Madras Estates Lands Act, 1908, was enacted. As observed in Venkata Nara.•imha Naidu v. D-indamudi Kotayyo(') at 301 that "there is absolutely no ground for laying down that the
rights of ryots in zamindaries invariably or even generally had th•'ir origin in express or implied granta made b:v the zamindar. The view that in the large major•tv of instances, it originated other-
wise is tho one most in accord with the history of agricultural land-holding in this country. For, in the first place, sovereigns, ancient or modern, did not here set up more than a right to a share of the
produce raised by raiyah in lands cultivated by them, however much that share varied at different times. And, in thE> language of tho Board of Revenue which long after the Permanent Settlement Regula-
tions wero passed, investigated and reported upon the nature of the rights of ryots in the various pa.rte of the Prosidencv, "whether rendered in service, in money or in kind and whether paid to rajas, jagir<lars,
zamindars, poligarn, mutadars, shroticmdars, inam<lars or to Government officers, such as tehsil- darn, amildars, amins or thannadars, tho paymrnts which havo always been made are universally deemed
the duo of Government" …… Therefore to treat such a payment by cultivators to zamindars 11s 'ront' in tho strict sense of the term and to imply therefrom the relation of landlord and tenant so as to fot in
the preoumption of law that a tenancy ii! genera.IA is one from year to year, would be to mtroduce (I) (1897) [. L. R. 20 Mad.:299. …. 3 8.C.R. ,,- a mischievous fiction destructive of the rights
01 i;reat numbers of the cultivating classes in this province who have held possession of their lands for generations and generations." It was also observed in that case (at p. 303), "It thus seem unquestion-
able that prima f acie a zamindar and a raiyat are holders of the melvaram and kudivaram rights, ~ __, respectively. When, therefore, the former sues to eject the latter, it is difficult to see why the defen-
dant in such a case should be treated otherwise than defendants in possession are generally treated, by being ~ailed upon, in the first instance, to prove that they have a right to continue in possession."
The right to occupy land under the revenue system prevailing in Madras may arise by reason of the ,._. customs in the district in which they are situate. In any event, there is no presumption that the
holder of the land under a zamindar is a tenant at will. In each case the rights of the ryot have to be ascertained in the light of the facts proved. In Appa Rau v. Subbanna ('), Muttusami Ayyar
and Wilkinson, JJ., were called upon to consider whether a zamindari ryot could mortgage his interest .. in his holding. It was observed in that case that "According to the course of decisions, therefore, in
this presidency the landlord may determine the tenancy if there is a contract, express or implied, _.. by exercising his will in accordance with his obliga- tions; that there is no presumption in favour of a
tenancy at will; that an occupancy right may exist r -1· by customs; that a pattadar or raiyat in a mitta is tintitled to continue in possession so long as he regularly pays rent and has a saleable interest, and
that by reason of special oircumstances in evidence the onus of proof may be shifted, even in regard to a permanent occupancy right, from the tenant to the landlord." The court also observed that it would
be "monstrous to hold that every tenant in a .r -.i:amindari is presumably a tenant at will''. (I) ( 1889) I. L. R. 13 Mad. 60. Sunk•Pilli SurPonn v. Qoli Sotkfrajn ShahJ. Sunkm·-![, S:,rmma
v (;o/i Sathir11Ju Shah ]. (1fi0 SUPRE:IIE COURT REPORTS rrntl2J [n Vwcata .l!a./i11l<.1l!shmamma v. lfomajogi ('), a zaminrlar ;;crw<l a notice upon thr rlcfon<lant, who was a cultivating ryot in the zaminrlari calling upon
him to deliver possession of his holding, and on default of complia11ce sued to evid him from his holding. The <kfon<lant plearle<l that he and his anc-estors had bce11 "jiroyati ryots" of the holding
from timeH immemorial. Accor1ling to the High Conrt, the Z;tmin<lar having faile<l tn provl.' that the ryot's tenancy had commPnce1l nn<lcr the zamin<lar or his ancestors, the suit shoulrl be dismissNl.
Tho court obsen·e<l that "in cases in which the raiyat.~' holding is not shown to have commence<! subsequent to the permanent Rcttlcm<·nt, and whl'n upon the c\·i1lenee it is possibly as ancient as the zamindari
itsdf, the prin1·iplc laid tlown with reference to tenancies which a<lmittedly commenced un<lcr the zaminclar" had no application, •111! tlu~t "in such cast•s it is not umcasonablc to hold that the onuR
of showing that the tcnar:cy commenced under the plaintiff or hi8 ancestors rests on the zaminclar, and thl\t until he 8hows it, tbc zamindar may be fairly presumed to have !wen the as8ignec of Government
n·wnue, anc! the tenant liable to pay n fair rent and Pntitled to continue in possC'ssion as long a8 he rei:;11larly pays rent. …. In l'c!lk<1t1& .Y<1rnsimlu1 N11idu '. Dandamudi
l\11f11yya('), which wu h:w" alrca1ly referred, it was h"!1l that a ryot in a permanently settled estate is pri ma fatie not a mere tenant from year to year ., hut the own('}' of tlw kuclh·aram right in the land
he cultivate•, and in a suit in ejectment, the zaminclar "is to prove that the kndivaram right in the disputl'd land subsequently passed to the deft.11- dant or some perHon throu}!h whom he claims under
circumstances which give the plaintiff the right to eject." The Court obscn·etl thnt there is no subs- tantial analogy between an English tenant and an — ..,. Indiau ryot for the right of ryots came into existence
11111892: !. L. R. 16 Mad. 271. (2l (18J7) l.L.R. 20 Mad. 299. 3 S.C.R. ,.,- mostly, not under any letting by the Government of the day or its assignees, the zamindars, but independently of them, according to the Indian
traditions such right were generally acquired by cultivators entering upon land, improving .it and making it productive. After referring to the judg- ment of Turner, C. J., and Muttusami Ayyar, J., in
~ 'I' Siva Submmanya v. The Secretary of State for India(') that the Hindu jurisprudence rested private property on occupation as owner, and to Secretary of State v. Vira Rayan(') that
the right to the possession of lands acquired by the first person who makes a beneficial use of the soil, it was observed that the well-known division in the Madras Presidency of the great interests in land under two main heads of
the melvaram interest and the kudivaram interest made the holder of the kudivaram right, far from being a tenant of the holder of the melvaram right, a co-owner with him. In Gheekati Zam·indar v. Ranasooru Dhora and
others('), Shephard, J., observed at p. 322, "Many of the occupants of zamindari lands are not tenants in the proper sense of the word, and the fair pre- sumption is that, when new occupants are admitted
to the enjoyment of waste or abandoned lands, the intention is that they should enjoy on the same terms as those under which the prior occupants of zamindari lands held. It is open to the zamindar
to rebut the presumption. He may show as was shown in Achayya v. Ht1numantrayudu (') that the i.rsual condition of things does not prevail in his estate or he may adduce evidence as to the particular
contract made between him and his tenant. In other words, he may show that the terms of the contract were different from those which ordinarily prevail between a zamindar and the occupant of
zamindari lands." Subrahmania Ayyar, J. observed, _,_ -…. "Practically the whole of the agr.icultural land there (1) (1885) I.L.R. 9 Mad. 285. (2\ (1885)1.L.R. 9 Mad. 175. (3) (1899) !. L. R. 23 Mad. 318.
(4) (:891) I. L. R. 14 Mad. 269. Sunkarilli Surnnn(t v. -Coli Salhiraju Shah j. $..U.Uli SuraMO v. C.Zi Satliiraju SW J. (1962] is not cultivated by persons who merely hire it for a
limited time. The raiyats most generally hold by no derivative tenure. And even where the right to cultivate passes to them from zamindars tho pay- ment mado by them, in the absence of a contract,
is regulated by custom in the last resort, as provid – ed in s. 11 of the Rent R-0covery Act. Tho raiyats a.re generally entitled .to hold the lands for a nn· " • limited time, that is as long as they wish to retain
it subject to the ·performance of tho obligations incident to the tenure. Nor can it be said that this is true only in regard to so much of the land in tho hands or the raiyats as cannot be shown to have
been obtained by them from zamindars. For in the case of lands which have boen relinquished by the former occupa.nta or which have been lying waste from time immemorial, they too, whon takon
up by a raiyat, aro treated exactly on tho same footing as land into tho possession of which it is notishown that the ra.iyat was let in by a zamindar, and the raiyat holds poSBession of them for an in-
definite period". In Kumbham Lakshnumna and others. v. Tanji- rala Venkateswarlu and Others ('), the Judicial Com- mittee of the Privy Council held that in a suit to eject the tenant of an inamdar from
his holding the burden is on the plaintiff to make out a right to evict by proving that the grant included both tho melvaram and the kudivaram intorosts, or that tho tenants or their predecessors were let •
into DORRllRBion by the inamdar under a t-0rminablo lease. The dispute in that case was between inamdars and a tenant and had to be decidod by the Civil Court, for having regard to the dcfu1ition
in s. 3(2) ( d) of the Madras Estates Land Act, 1908, the Act did not apply t-0 inamdars. By s. 6 of the Act it having boon providod that "every ryot now in pOllsession or who aha.~!
herea.ft~r ~ admitted by a landholder to possession of ryot1 land situated in the estate of such landholder shall have a permanent right of occupancy in his holding," (I) (1949) L. R. 7' I. A.' 202.
3 S.C.R. all tenants in possession of land at the date on which the Act came into operation, were declared to be holders of permanent occupancy rights, but the Act did not justify the inference that the holders
prior to that date did not and could not hold occu- pancy rights. The Privy Council was of the view that in any action by an. inamdar to evict his tenants. and by a zamindar prior to 1908 to evict
his raiyats from their holdings, the burden was on the plaintiff to make out the right to evict by proving that the grant included both the melvaram and the kudivaram interests or that
the holders of land or their predecessors were let into possession by the inamdar or the zamindar under a terminable lease. The Privy Council judg- ment, therefore, recorded its approval to the view
expressed in the earlier cases to which we have referred. But counsel for the respondents contended that this was not a suit between a zamindar and a ryot and the rule as to the onus of proof in a
suit as between a zamindar and a ryot did not apply where the suit was filed by a person like the plaintiff claiming a share in the occupancy right in land in possession of the defendants, and unless
the plaintiff establishes affirmatively that the common ancestor was before 1908 in possession as an occupancy tenant, his suit must fail. We do not think that this is a permissible approach. The
presumption which arises in a suit by a zamindar against a ryot for possession of the letter's holding, rests not on the narrow ground of burden that whoever alleges title and claims relief
on that footing must establish it ; the presumption has its roots in the system of land tenure and in cus· tom of the area in which the lands are situate, and applies in a suit between persons claiming
under the ryot, as well as in a suit against the ryot by the zamindar. Counsel for the re pondent relied upon certain eiroum1tanees which appeared from the evidence Sunkavilli Suranna
v. Coli Sathitaju Shah]. lMI Sun.ktuilli SurOnM Goli Sathiraju 66! [HJ62l as lending supp0rt to the plea of the contestinp: • dcfenrlauts that tlw lan<ls were not held by Thammiah)n occupancy right. Reliance was placed
upon the covenant in Exts. D-1, D·2 and D-3 that the zamindar may on the expiry of the year of tho m11chilika, let out the lands to any tenant at "cist'' advantageous to the zamindar. "rt is true that in
Exts. D-1, D-2 and D-3 it is recited that if ;it tlw end of the terms of the muchilika the z1imi11dar should lease out the lam! t-0 anv one for a "cist" advantageous to him, Thammiah· would not object
thl'rcto, and he further agreed that he would leave sufficient Jami; without raising any objection, for the ryot to carry out the necessary work for cultivation rluring the ensuring year.
But such a co\·enant is by itsc If not sufficient to justify the inference that the ryot's tenure wall precarious. It appca rs that sinct• the dl'cision ef tho Madras High Court in Chockalingc1 I'illi \'. Vythealinga Pundara
Sumuuly (')that neither the rent lteeovC'ry Act, nor the regulations operatt'd to <'Xtcnd a tcnan<'y hoyond the period secured by tho express or implied terms of the contract cn•:iting it, the zamin-
<lars were accustomed to take muchilik:L or other writings from their ryots ndn1 itting, notwithstanding the t1ue nature of thPir rights, that their tenure was restricted or precarious. In
J'enwta J/.1ltc1fokshmamma v. Uamajogi ('),in deal- ing with a muchilika <•XCcuted by a ryot for a period of one year only, l\Iuttusami Ayyar J., obHerved, "Neither a patta nor a muchalka granted
or executed unrlcr Act VIII of 1865 during the eontinnuuce of the holding is conclusive cvidcnco tlmt the holding is :i tenancy from year to year. A pa.tta or muchalka is ordinarily nothing more
than a record of what the tenant has to pay for a particular year with reference to the pro-existing relation of lancllord and tenant. The fact cannot also be lost sight of that tho zamindar is .•!ways a man …,,… of education, status and influence and often exercises
(I} (18711 6 M. H. C.R. 164. 11892! I. L. R. 16 Mad. 271. Ct' ,…_, •. -f- 3 S.C.R. revenue power and control over the village records. On the other hand, the raiyats are illiterate persons
and it would be easy enough to get them sign anything as long as there is no attempt to interfere with their actual occupation and enjoyment of tho land." It would be unre::tsonablc, therefore, to
attach any undue importan8e to the rc"itals of the nature contained in Exts. D-1, D-2 and D-3. The Privy Council in Kumbham Lakshmamma's case (1) referred to tb.e practice among zamindars of taking
muchilikas from ryots negativing the existence of the occupancy rights as being prevalent and to the judicial recognition of such a practice in Peravali Kotayya v. Pnnopalli Ramakrishnayya (
and Zamindar of Chellapalli v. Rajt!lapati Somayyci ('). The Judicial Committee referred w~th approval to the ob~ervations of Wallis, C.J., in the latter case to the effect : "In this connection it is to be borne in
mind that numerous instances have come before the courts in which subsequent to the decision of the Chokalinga's case(') (1871) zamindars succeeded in inserting in pattas and muchilikas terms negativ·
ing the existence of occupancy right", and pointed out that they could not neglect the conside· ration that a ryot so long as he is not evicted, might be prepared to sign anything and that the
evidential value of such a contract should be judged accordingly. It is true that if there were some reliable or substantial evidence to show that the tenancy had commenoad after the zamindari
rights accrued or that otherwise the tenant's right was restricted, the value to bo attached to the reci- tals of the nature set out may be greater ; but there are no (lircumstances in this case lending strength
to the recitals contained in Exts. D-1, D·2 and D-3. After the death of Thammiah, muchilikas were obtained and pattas granted by the zamindar not in favour of the daughters of Thammiah, who
were under the Hindu Law his heirs, but in favour (II (1949) L. R. 76. LA. 202. (2) [1937]2 Mad. L. J. 573. (3) (1914) 27 Mad .. L. J; 718. (41 (1871) 6 M. H. C.R. 164. Su,,kavilli Suranna
G uli SathiraJu Shah]. JP61 tvd:at:ilii S11ro.n11tt v. Coli Scthiraju Shah J SUPREME COl"RT REPORTS [lr62J of his daughters·in.law, in the first instance, and thereafter, in favour of one of the daughters-in-law
and Ramanna, grandson of Thammiah. These documents arc Exts. D-4, D-G, D-G (a), D-6 and D-8. Ext l'-4 is a muc-hilika executed on August 15, 1891 by \'enkamma and Chetamma, daughters-in-
law of Tbammiah. Ext. D-ii is another muchilika executed on August, lG, 1893 by Venkamma. and Chetamma. Each of these mnchilikas is for period of one year. Ext. D-5 (a) isa patta executed on October
IO, 1893 by the zamindar corresponding to muchi- lika Ext. D-5. Ex. D·6 is a patta executed on May 21, 1904, by the zamindar in favour of Chetemma. and Rama.nna-minor by his guardian
Vecriah-and there is Ext. D-8 which is a patta dated January 16, 1906 also in favour of Chetamma and Ramanna. A lI these rnuchilikas and pattas related to the same seventeen pieces of land which
were originally in tiic possession of Thammiah, and the covenants thereof aro identical. It is true that in respect of the first two rnuchilikas the ryots were Chetamma and Vcnkamma, and in
:Exts. D-6 and D-8; the ryots were Chetamma and Ramanna. Counsel for the defendants asks us to infer from Exts. D-4 to D-8 that tho zamindar had at the end of the year for which tho muchilikas or
pattas were cxccut~d exercised his right of evic- tion and had taken possession of the lands and had given them to other persons of his own choice. But it is difficult to draw that inference in the
absence.:.. of any reliable evidence that the zamindar had evicted ryots who had executed the muchilikas and.had then inducted fresh ryots on the land. The reason why'/Vonkamma was omitted after 1893
from.the muchilikae and pattas of the land and in her~ place Ramanna was substituted will be pre- sentlyLmentioned. After tho death of Thammiah, hi1 rights in.the land would undoubtedly devolve by
the law of inheritance upon his survivingdau~~ters with limitoo interest. But the fact that mueh1hka.a wore taken from persons who were strictly not heirs acoording to Hindu law, but wer• 1till
'· . —–· _..,…- 3 S.C.R. representatives of the family, will not ·justify an inference that the right of the original ryots were extinguishe<l and fresh rights in fM·our of persons
who exec•1ted muchilikas were created. The two daughters-in-law–Chetamma and Venkamm:t-after the death of Thammiah, continued to .live in the family house together with Seshamma, Veerayya
and Rudriah, and it is not unlikely that the zamin- dar regarded the two daughters-in-law as represen- tatives of tho family and took muchilikas from them. There is no warrant for the inforence that
they wer•> inducted on the land in inqependent right by the za.mindar and not -as reprepentativ'es of the descendants of Thammiah. The learned Judges of the High Court observed that "in 1895 (when
Ext. D-4 was executed) in country parts likePandal- paka, it is too much to assume such a souud know- ledge of Hiedu law. Besides, Venkn.mma and Chetamma were, admittedly, living a.long with
Veeriah and Rudrnyya and Ramanna and Bhavamma during Thammiah's life-time, and cont;inued to live in that same house after his death … So, we have no doubt that t;he Maharaja of
Pittapur, the zamindar, never intended :in the least to take away the B Schedule lands from '.I'ammayya's heirs and given· them to Venkamma and Chittemn:.a who were not heirs and we hold that he renewed
the patta in favour of these two widows, as they were con:iiderad by him to be representing Tam- mayya's estate, being his widowed daughters-in- law." In our view, this in the circumstances of the
case, is a correct inference. It appears that after 1895 there arose disputes between Veeriah and VenJi:amma-and it was arranged to provide maintenance to Venkamma out of the e11tate of Thammiah. -Ext. P.l dated May
16, 1899 records the terms on which maintenance was granted. This document has a very important bearing on the quei;tion which falls to be decided in this appeal. It is recited in Ext. P-1 that all
ihe propertiell of Tha.=ia.h had devolved, after Sunkavilli Surarma v. l Coli Sdthiraju Shah]. –i S;mJ.aril/i Sur•rmo v. c.1i Sothiro.;u Shah]. 6G8 [196~J his dflath upon his "dowhitras" (da1Jghter's sons),
Rudriah and Ramanna anrl that the two "dowhi· tras'' w<'re bound to maintain th•' widowed <laugh· t.f'fs.in·law-Chetamma and Ycnkamrn11, and that accordingly they were being maintained, but a
\'cnkamma was unwilling- to live in tho family house, it was dceiclrrl to give her for rnaint~nance expcnsl's Rs. 25 and 240 kunchams of white paddy per year besides •~ house for residence.
This deed recites that out of tho estate of Thammiah the two widows-Chctarnma and Venkamma were in fact Lein!! maintained, that the estate was inherito l by Hudriah and Ramanna, and recognises the right of
the widows to rccei\•e maintenance out of the estate. Then' is no evidence on the record that besirles the lands mentionccl in Schedule 'Il' thoro was <\llY other agricultural land of whichThammiah
was possessed and which had devolved upon Rudriah and Ramanna. It is adrnittcdly out of tho property of Thammiah which had devoh·erl upon f{udriah and Ram.anna that maintenance was
agreed to he given, and if Thammiah was not posses· eed of '.l"Y property other than the Jands in Sche· dule 'B·, Ext. P.l must lend strong support to the inferenc" that the lands in Schedule 'B' were
regarded at the dat.e of the maintenance deed as belonging to the estate of Thammiah out of which V cnkamma was entitled to maintenance. The &esumption that the proprrt.y had devolved upon
Rudria.h and Ramanna is evidently not true. So long as the daughte_r~ or any of them were alive, they were, according to the Hindu law applicable to the :Madras Presidency, owners, though for their
lifo·time only, of the estate left by Thammia.h. Ext. P-1 docs therefore land support to the oa.sc of the plaintiff that the property was regarded as belonging to the family in which all persons who
were living in the house of Thammiah, including the ,two daughters·in·law had interest. After maintenance was provided to Venkamma hy Ext. P-1 her name was omitted from the. muchilikas and
.the pattas subsequently executed. Pattas D-G and -'- ·• 3 S.C.R. 66\J D-8 are as we have already stated, in faV"our of Chetamma and Ramanna. It is true that rent was enhanced by the
zamindar from time to time under the muchilikas. During the life-time of Thammiah the annual rent was Rs. 419-8-0 and it remained unchanged, but after his death the rent, even though the area of
the land continued to be the same, was enhanced to Rs. 481-8-0 under Ext. D-4. There is some error in totalling np the amount of rent, but the enhance- ment of rent by Rs. 52 is substantially the result
of alteration of rent of Sr. No. 315. Originally the rent of Sr. No. 315 Was Rs. 20-3-9: it 'lvas enhanced to Rs. 81-3-9. Under Ext. D-5 the rent is Rs. 537 (it should have been Rs. 4 73), but that again, is
the result of some error in totalling, the only enhancement being in respect of No. 358 which was increased from Rs. 5 to Rs. 6-8-0. In Ext, D-6 of the year 1904 the rent of this land was enhanced to
Rs. 60-8-0 and rent in respect of Sr. No. 315 was enhanced to Rs. 91-3-9. The High Court has held that this enhancement of rent of the two lands Nos. 315 and 358 was presumably because the lands
were irrigated, and, having regard to the circum- stances, we think the inference of the High Court is correct. Enhancement of rent of the lands from time to time does not land support to the inference
that fresh pattas and muchilikas were not in recog- nition of the previous rights. It is pertinent to note t-hat in the records of the zamindar all the muchilikas in · respect of the lands bore No. 12,
during the life time of Thammiah and after his death thev bore No. 23. The circumstance that the same. area of land remained in the occupation continuously of the family of Thammiah under
Exts. D-1 to D-8 for a period exceeding 25 years also lends support to the plea of the plaintiff. It is true that by his notice Ext. D-7 the zamindar called upon Ramanna and Chetamma to vacate the
kumatam (which term is translated by the learned counsel for the respondent as 'home.farm') lands of the extent of 51 acres 72 cents. But by the year Sunkavilli Suranna v. Go!i Sathiraju
Shah J. 1961· S.,.luilli s.,..,… v. Gg/i Satltirt1Jtt SW.]. [1962) 1905 it waa well-known that 1egi3lation of the nature, wh icb was ultimately enacted as the Madras Est.au' Land Act, 1908, was on the legislative anvil
and n<> rcl'anco can be placed upon the statements made in th9 notice which docs not appear to have been follo11.·ed by proceedingB, for en for< emc'lt of the claim to po~scssion. It is ocmmon ~r Jund that
on Januar." 16, 1906, the zarnindar issued in favour of Chctamma and Ilamanna a patta in respect of the same lands for an annual rental of R~. 5i8-4-0, rent havin~ been. enh&nced in respect of Sr. No. 46
and 358 or.ly. The]High Court placed ekong reliance upon the circum:itancea that in all the muchilikas and patta~ the land~ were described as "jcroyati lands" nnd the tenants were described as "joroyati ryots".,
The High Court obs('rved that "jeroyati ryot" was a well-known t~·rm indicating prima facie posses- sion of occupancy rights. However, the state of the authorities in the Madra~ High Court to which
cur at.ten ti on has been invited does not j11stify us in expn,ssing any definite opinion on that plea. In Zamindar of Bodokimidy v. Badankayala Bhimayya(' ), Curgenven. J .. held that the phrase 'on jiri.yati
tenure' is onl.v used where occupancy rights exist. But b<>yoncl the bare statement in the judgn,cnt that "tho phrasl)" on jirayati tenure "being, so far 11s my <>XpHienre goee, only used where C•ccupancy
rights exist", there is no further elaboration in the judgment. In (!t-aturi) L1ngayya Ayy11varu v. Eandula &'angiah ('),Wallace, J., without referring to the o>arlier judgmPnt of Curgonven, J., observed
that the te~-m "jeroyatidar" did not imply that, the executant was an occupancy ryut. Herc also no reasons appear to have L1·.en given in support of the view. IuDadamudy Tatayya v.Kelachiria. Venkata-
s·ubbarayya Sast-i ('), D~vadoss, J., in th.c course of hearing ;m appeal cal1cd for a findmg irom the (I) A.1.R. 927 Mad. 76. 12) A.l.R. 1928 Mad. 58. (~) A.l.R. 1928 Mad. 786. .. •
1·.: \ .. , i -r ,.'. .3 .S.C.R. SUPREME COURT REPORT$ trial Court as to the meaning of the word "jero- yati" as used in the Vuyynr Zamindari a~rl a~~~ the meanin()' of the expression "savaram Jeroy1t1
used in doc~ments in that estate. The Subordinate Judge recorded evidence on the question referr.ed to him, and observed after referring to Brown's Di"tionary and Wilson's Glossary, that tho word
"jeroyiti land" may mean "cultivable or arable land", but it was only the context that must decide whioh meaning was to be given to the word. He also observed that the word "jeroyiti" especially when
prefixed to the word "right" or hakku had come to mean "rights of ocaupancy". This report oft.he Subordinate Judge, it appeMs, was accepted by the High Court. These are the only decisions of the .
Madras High Court to whioh our attention was invited. The task of this Court, in ascertaining the special meaning which an expression used in the revenue administration and by the residents of
4 certain area has acquired, is indeed difficult. If the expression "jeerayot" is a local variation of "Zeerait" used in the revenue administration, especially in Northern India. it may mean
"assessed" land, or "agricultural" land. On the materials placed, we are unable to express any definite opinion on thi1 pa.rt ef thit ease of the plaintiff. To summarise, there is no evidence to show
t.Jiat occupa.tion of the Janda by Th'lmmiah commenc- ,;d under the zamindar ; and there is no evidence as to the terms on which Thammiah or his predeces- w,rs were inducted on tho lands : the oommence-
t•lent of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to h11ve continued in possession of land uninterruptedly till the enactment of the Madras
Estates Land Act, 1908. In the light of the pre- . _ . ..,.. sumption that the zamindar is, unless the contrary is proved, the owner of the melvaram and the ryot the owner of the kudivaram the inference is irre-
sistible that Thammiah was the holder of the Sunkat•illi Suran.no v. Coli Sathiraju Sh.ah]. 19C1 Su.ik-:wiUi S11ranna v. Coli Sathirairi . ~hah ]. Gi2 SUPREME COURT' REPORTS (1962]
occup:m:v rights in the lnnds and that t.hese rights cle\·oh·e<l upon his successors anrl that the occu- pancy right.s in the lands were not aoquirNl by virtue of t.lw provisions of ?ifaclras Act I of l!l08.
Ileforn parting with the caso, a minor question relatinir t0 rncsnc prr•fits awarder! to the plaintiff ancl dt·fendants 31 and 32 must be mrntioncd. Ilv his plaint the plaintiff claimed rncmn profits in
respect of his shan• for three years prior to the date of the suit. He valued the claim for mrsno profits at Rs. :i,800-past profits on plaintiffs I/3rd Bhare for two years 1!!40 and lfJ4 I at Rs. 2 ,:?SO and past
nwsm· profits on plaintiff's I /3rd shares for the year W-l:? at Rs.1,520. The trial court dismissed tho pbi11tiff's suit as to his share in property described in Sehcdulr 'B'. The High Court in a.warding a third
sharn lo the plaintiff and another third share to def"n<lanh :u and :l:! collectively also awarded past tn«sn0 pr0fits from the 18th of )farch, I 93.'i, i.e., the elate of the death of Rha\•amma, along with
future mesnc pr'.lfits rrg;mling the shares in the B all!! the C ScheclulPs prnpcrties. But the High Court coul<l not award nwsne profits prior to Auizcrnt, 19JQ which ha<l ne\'!'l' been claimed bv tho
pl<~intifT in the suit. Wr' thcr,.fore mnrlif.v the <lccrce of the High Court and direct th:it nwsne profits bcfon• the suit arc awarded from tlw 4th of August, IU40. Subject to th:it rnodifieation, the dccr!'o
passccl by the Hizh Court is affirmerl and the Appeal iH dismissed with costH payable by the contesting dcfrndants to the plaintiff. App€!'l dismissed subje.rt In modifiw/.ion. ,_\.
C!i\·~ ,,•,