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Judgment
Balakrishna Ayyar, J.—This is an appeal from the order of the Estates Abolition Tribunal, Madurai, rejecting the claim of the Petitioners for
a share in the compensation amount deposited by the Government of Madras in respect of the under tenure estate of Neduvayal.
On 7th September 1949, the State of Madras took over this . estate under Madras Act XXVI of 1948. In accordance with the requirements of
the Act, the State of Madras deposited a sum of Rs. 43,887 as advance compensation. On 12th July 1952, the Government deposited an
additional sum of Rs. 13,068 as further compensation. It appears that there are in all 16 irrigation tanks in this village. The Petitioners claimed that
they were the owners of 14 of these tanks, and that the compensation amount attributable to these tanks should be paid over to them.
The Tribunal found that the Petitioners had title to tank Nos. 1, 2 and 5. By a majority of two to one, however, the Tribunal held that though the
title to these tanks vested in the Petitioners, they were not entitled to any share in the compensation. Hence this appeal.
The compensation which Madras Act XXVI of 1948, requires Government to deposit with the Estates Abolition Tribunal represents the value
of the interests of the landholder or zamindar of the estate, such value being computed in accordance with the principles laid down in the Act. If,
therefore, the landholder was the owner of these tanks, and his rights in respect of these tanks came to be lawfully vested in the Petitioners, they
would be entitled to the compensation attributable to the rights of the landholders in these tanks. It, therefore, becomes necessary to examine what
the title is of the Petitioners in respect of each one of these tanks.
Tanks Nos. 1 and 2.--Vagaikanmoi and Thangamma Kanmoi are tanks 1 and 2 and they are situated in cusba Neduvayal. Exhibit A-2, a
document, dated 24th February 1885, is a sale deed executed by the then landholder of Neduvayal village for a sum of Rs. 4,000. That document
expressly conveys both these tanks. The relevant portion of the sale deed has been translated thus in the order of the second member of the
Tribunal:
The two Endal tanks of Thangamma Vayal and Vatai Vayal within these four boundaries, the nanja chei of one kalam and the punja of the seed
extent of one kalam and six marakkals pertaining thereto . . . and the thittu and thidal, etc., attached thereto.
Therefore, there can be no doubt that the interests of the zamindar or landholder in these tanks has been conveyed. The second member of the
Tribunal thought,
In my opinion, the effect of this conveyance is that the Petitioners have got all the rights of ownership in these banks but only so far and so long as
they are ryots of this village.
The first member of the Tribunal was also apparently of the same view. We are unable to see anything in this document limiting the rights of the
vendee in any such manner. No doubt exhibit A-2 does say that every year a sum of Rs. 75 should be paid as poruppu to the vendor. The
document also provides for the issue of a patta. But then it must be noted that the sale deed includes not merely these tanks but also cultivable
lands included in the pannai of the vendor. The stipulations, therefore, for the payment of poruppu and the issue of patta are not sufficient to whittle
down the effect of the words of conveyance so far as they relate to these tanks. In any case there is nothing in the document to show that the rights
of the vendee in the tanks would enure only so long as they continued to be the ryots of the village. In this connection it may also be mentioned that
exhibit A-23 which contains extracts from the accounts maintained by the Petitioners and their predecessors-in-title show that they have been
deriving income from tank No. 1 from 1926 to 1949, and from tank No. 2 from 1946 to 1949. In other words the enjoyment has been as if the
tank had been conveyed absolutely.
Tank No. 3 is called Solaiambala Kanmoi, and it too is situated in the village of Cusba Neduvayal. Exhibit A-6 is a sale deed, dated 18th
September 1893, in favour of a predecessor-in-title of the Petitioners by two persons, Abdulla Sahib and Fathimissa Bi Bi. The document conveys
two pangus out of a total of five pangus, that is to say, a two-fifths share in the entire property. The property conveyed includes Solaiambala Endal.
The document further states:
You shall hold and enjoy the iruvaram right pertaining to the said nanja sei from son to grandson and so on in succession . . .
The document concludes:
The aforesaid Endal is attached to Neduvayal Palayapattu Zamin. As the Endal has not been divided into shares, it is not possible to state the exact
location.
Exhibit A-3 is another sale deed, dated 5th June 1896, in favour of a predecessor-in-title of the Petitioners by one Sombu Ibrahim Sahib. This
document conveys one pangu out of five pangus, that is to say, a one-fifth share in the property specified in the document. Solaiambala Endal is
specifically mentioned in the document.
Exhibit A-5 is another sale deed bearing the date 3rd September 1890 by which a further pangu equivalent to a one-fifth share is conveyed.
On the same date one more pangu or a further one-fifth share in that village and tank was conveyed under exhibit A-4. The '' Kanmoi'' is also
expressly referred to in these deeds.
It will, therefore, be seen that all these documents put together convey the entire rights in the tank to a predecessor-in-title of the Petitioners. It
is true that the persons executing the conveyance were not the landholders of the estate at the time. But in the circumstances of the case we shall be
justified in presuming that the vendors had derived valid title from the zamindar or landholder concerned. Otherwise it is unlikely that either the
vendors or the vendees would have been permitted to remain in peaceful possession of the property. It may also be mentioned here that exhibit A-
23 shows that the income from the tank was being enjoyed by the Petitioners or their predecessors-in-title from at least 1931 to 1947.
Tank No. 4 is called Ammani Pudukulam Kanmoi. It is also situated in the village of Cusba Neduvayal. Mr. Vedanta-ehariar, the learned
Counsel for the Appellants, referred to exhibit A-7, a sale deed, dated 30th September 1892, in support of the claim of the Petitioners that they
had title to this tank. The document covers seven items of properties. Item 6, it was said, relates to this tank and the relevant description reads as
follows:
Situate in Anmani vayal No. 1, cusba Neduvayal village, attached to the said zamin, lying within these, namely, to the west of your land, north of
your Potta thalai, east of Solai Ambalam''s vayal and south of your land, Dharmasanam No. 12 village, talai 6--land 1/4 plus 3|64.
This description is not sufficient in our judgment to include the tank.
Exhibit A-29 consists of a bundle of cadjan leaves, said to be the olugu accounts for the village of Neduvayal for fasli 1309. This contains a
passage which has been translated as follows:
No. 4, Amman Pudukulam Kanmoi, paimash olugu for fasli 1309 of No. 1, Cusba Neduvayal village.
But neither from this passage nor from the entries either above or below it can be reasonably inferred that the title to this tank vested at any
time in any predecessor-in-title of the Petitioners.
Tank No. 5 called Kuppan Chetty Kanmoi is situated in the hamlet of Manaloor. Exhibit A-8 is a sale deed, dated 15th April 1885, by three
Brahmins, Sivarama Iyer, Nagarathina Iyer and Chinnasami Iyer in favour of the predecessors-in-title of the Appellants. The document expressly
recites that the tank and iruvaram rights in the tanks are being conveyed. The relevant passage has been translated as follows:
The limits of Kuppan Chetty Tended nanja, etc., in the irrigation area of No. 4 Tiruvanthoor west of the western bound of Kattu Chetti oorani and
the ayan uncultivated land, left out in Velanerivayal, north of the northern waste land in Velanerivayal and the achukattu lands of Karuppannan, son
of Vellayan Maniyakaran, east of the eastern parambu land in the punja of N. Palaniyan and the eastern paramba of the Arunji-kallam punja of
Chiranthur Vinayagar Maniyam (land) and south of the south Kalingula channel of the Manali Kanmoi, comprised within these limits, Kuppan
Chetti yendal kulam one and pertaining thereto Kuppan Chetti oorani No. 13.
There can be no doubt, therefore, that this document conveys the rights in the tank No. 5. The sale deed also recites that the anterior title-
deeds were delivered to the vendees. The Tribunal found that the title to this tank vests in the Appellant, and that conclusion appears to be right.
Tank No. 6 which is called Velaneri Kanmoi is situated in Thiruvalandoor, an other hamlet. Exhibit A-9 is a sale-deed, dated 18th December
1905, by which a half-share or pangu in the properties specified in the document is conveyed. The document expressly conveys iruvaram rights
and also all rights relating to tank, fishery rights, tank bund, kanmoi channel, etc., pertaining to the same. The description of the properties
proceeds: ''comprised within these limits, Velaneri vayal 1''. Exhibits A-10 and A-11 are two other documents of the same date by which in more
or less similar terms 1 � pangus are conveyed. Exhibit A-11 specifically states:
you shall hold and enjoy the undermentioned properties and all the high ground, open space, timber and fruit-bearing trees, tank, fishery right,
tank-bund kanmoi, channel, etc., with all absolute rights for ever from son to grandson ...
Exhibit A-12 is dated 9th March 1908, and it conveys a further pangu in these properties. The language used in exhibit A-12 is similar to that
used in exhibit A-11. Between them exhibits A-9 to A-12 exhaust all the three pangus in the village, and therefore they are sufficient to convey all
the rights in the tank.
Tank Nos. 7 and 8.--So far as these two tanks are concerned, even in the memorandum of appeal it is noted that the claim to them is given up.
Mr. Vedantachari, the learned Counsel for the Appellants also confirmed that before us.
The Appellants possess no title-deeds to either tank No. 9 or tank No. 10. Their claim for those tanks cannot, therefore, be accepted.
Tank No. 11.--It is called Kurunkula Kanmoi and it is situated in the village of Veliyankudipatty. Exhibit A-18 is a conveyance, dated 9th
February 1863, executed by the then zamindar in favour of a predecessor-in-title of the Appellants. The document contains this passage:
You shall enjoy the aforesaid nanja and punja lands together with the kudiwaram and melwaram, etc., with all the income pertaining to tank,
fishery, deepening of tank water course, etc., from son to grandson . . .
The document also provides for the payment of theerva as per custom. The description of the property reads:
situated in Veliyangudipatty village limits attached to our Palayapatti, the four boundaries of Kurunkulam kanmoi and attached to it the nanja and
punja are as follows.
It is clear, therefore, that the tank is conveyed by this document.
Under exhibit A-17, dated 11th March 1886, Arunachalam Chetti and two others conveyed to one Annamalai Chettiar one half of the rights of
the vendees under exhibit A-18 which had devolved on them. Under exhibit A-16 the other half was conveyed in favour of an ancestor of the
Appellants on 20th May 1892. There is no sale deed to evidence the transfer by Annamalai Chettiar or any of his descendants of their rights to the
Appellants or their ancestors. But it is stated that the Appellants are in possession and enjoyment and that statement is not controverted.
Exhibit A-23 shows that so far as this tank is concerned, the Appellants have been enjoying the miscellaneous income from it from 1926 to
1947. Taken all together, these circumstances are sufficient to establish the title of the Appellants to this tank.
Tank No. 12 called Pudu Kanmoi is situated in Marava-mangalapatty and the pangu in this tank is included in the conveyance, exhibit A-8,
dated 15--4--1885. Another share or pangu in it is included in exhibit A-7, dated 30th September 1882, and the remaining third in exhibit A-22.
We notice that while exhibit A-8 explicitly includes the tank, exhibits A-7 and A-22 are not quite so explicit. Still reading the documents as a
whole it is a fair inference that the tank was also conveyed.
Tank No. 13 called Mudali Kanmoi is situated in Maravamangalapatty. Exhibit A-19 shows that on 6th January 1886 one Sevugaperumal
Mudaliar sold the village in which this tank is situated to Anumantha Pillai. The document states:
You yourself from the said date shall hold and enjoy the aforesaid village (for your life) and nanja, punja vagaira together with all kinds of
samudayam probathyam such as fruit-bearing and timber trees, etc. . .
In the description of the property conveyed, Mudaliendal is specifically mentioned by name. Exhibit A-20, dated 3rd September 1896, shows
that the vendee under exhibit A-19 conveyed his title and interest in these properties to a predecessor-in-title of the Appellants. We notice that in
exhibit A-20 the earlier title-deed, exhibit A-19 is not referred to. On the other hand the vendor describes the property as ''my ancestral
properties''. But we do not think this makes any difference. This tank which is expressly referred to in exhibit A-19 is not mentioned by name in
exhibit A-20. Despite this we think we shall be justified in taking the view that exhibit A-20 really comprised the properties covered in exhibit A-
19, because we see from exhibit A-23 that from 1926 to 1948, the Appellants and their predecessors-in-title had been in enjoyment of the income
from the tank. The order of the second member of the Tribunal shows that he considered that exhibit A-19 does not cover the tank in question.
That view of his, which was apparently shared by the other members of the Tribunal, does not appear to be correct. The whole village was
convened under exhibit A-20 and the tank which lies within the limits of the village must also naturally go with it. Besides the tank is also mentioned
by name. We consider that the Appellants have established their title to this tank.
Tank No. 14 called Kurudi Kanmoi is situated in Old Neduvayal. Exhibit A-21 shows that on 9th September 1884 one Narayanaswami and
two others conveyed in favour of a predecessor-in-title of the Appellants the undermentioned Dharmasanam Kurudivayal village together with the
iruvaram rights. The document states:
. . . you shall hold and enjoy the first item Endal and second item Old Neduvayal darmasanam nanja lands two items ... together with iruvaram
rights from son to grandson.
In the description of the property, Dharmasanam Kurudivayal village is expressly named. Since the entire village was conveyed the tank
situated in that village must also be included in it. Exhibit A-23 also shows that from 1926 to 1949 the Appellants or their predecessors-in-title
have been enjoying the income from this tank.
On 16th September 1914 the then zamindar of Neduvayal gave evidence in the Court of the Additional District Munsif of Sivaganga. He then
stated:
Mavali Kanmoi and Palaya Neduvayal Kanmoi belong to the zamindar. The other tanks in the Palayapat belong to the ryots. The lands that are not
included in any of the pattas are poramboke lands.
This is important as an admission by the zamindar that so far as these tanks are concerned he had no interest in them.
The Appellants have produced satisfactory evidence of title relating to tank Nos. 1 to 3, 5, 6 and 11 to 14; and also shown that they are in
possession and enjoyment of the miscellaneous revenue from these tanks. We shall, therefore, be justified in concluding that they had title to these
tanks.
Original Petition No. 83 of 1951 was a petition filed by the present Appellants before the. Estates Abolition Tribunal, Madurai, wherein they
applied for payment out to them of a portion of the ''interim payments'' which the State of Madras had deposited. The prayer column in the petition
ran as follows:
It is prayed that this Honourable Court may be pleased to direct an apportionment of the two amounts of interim payments Rs. 251 plus Rs.
1,944, in all, Rs. 2,195, between the Petitioner and Respondents 2 to 5 on the one part in respect of the two villages Mela Vannar Iruppu and
Pannai Kila Vannar Iruppu and the first Respondent in respect of the other villages of the said Palayapattu or Zamin.
Mr. Desikan, the learned Advocate for the Respondents, pointed out that in this petition the Appellants made no claim in respect of any of
these tanks. Original Petition No. 103 of 1951, was another petition filed by one of the present Appellants u/s 42 of the Madras Act XXVI of
1948. That also relates to the advance compensation deposited by the Government in respect of the two villages of Mela Vannar Iruppu and Kila
Vannar Iruppu, which we have already mentioned. In this too they did not claim any compensation in respect of the tanks.
The present, Appellants filed Original Petition No. 936 of 1952, before the Estates Abolition Tribunal. In this too they did not claim that they
were entitled to compensation in respect of these tanks. Therefore, argued Mr. Desikan, they are not entitled to make the present claim.
We are unable to see why. Their omission to make a claim in respect of these tanks certainly does not operate as an estoppel. It is impossible
to say that the documents produced by the Appellants in support of their present claim were brought into existence subsequent to the three Original
Petitions which Mr. Desikan referred to. The most that we can say is that at the time they presented those petitions they were not themselves fully
aware of the full extent of their rights. A perusal of the petition which they filed before the Estates Abolition Tribunal and that of which this appeal
arose shows that the Petitioners and their legal advisers had some difficulty in defining their legal rights. But the difficulty a person or his legal
adviser feels in defining what rights he has under certain documents the genuineness of which is not disputed cannot deprive him of any rights he
had. As we have said before the compensation deposited by Government represents the value of the interests of the zamindar that vested in the
Government under Act XXVI of 1948. That compensation is determined at so many times ''the basic annual sum''. Clause 4 of Section 31 of Act
XXVI of 1948 makes it clear that this basic annual sum includes:
The whole of the average net annual miscellaneous revenue derived from all other sources in the estate specified in Section 3, Clause (b), but not
including lands in respect of which the landholder is entitled to ryotwari patta as ascertained u/s 34.
u/s 34 of the average net annual miscellaneous revenue referred to in Section 31(4) shall be the average of the net annual income derived by
the Government from such sources during the three years specified in that section. In view of our finding that the right to the tanks Nos. 1, 2, 3, 5,
6, 11, 12, 13 and 14 vests in the Petitioners, the compensation attributable in respect of the net miscellaneous income derived from those tanks
must be paid to them. This means that the Petitioners will be entitled to the amount to be ascertained by the application of the following formula--
A|B X C where A represents the net annual miscellaneous revenue derived from the tanks mentioned above by the Government u/s 34 of the Act,
and B represents the basic annual sum in respect of the under-tenure estate of Neduvayal and C represents the compensation amount deposited by
Government. The appeal is allowed to this extent: the Tribunal will compute and ascertain the amount payable to the Appellants under this formula.
There will be no order as to costs.