Case: Sunkavilli Suranna And Others Vs. Goli Sathiraju And Others

1. One Thammiah had two sons-Gangaraju and Ramayya-and four daughters Ammanna, Seshamma, Gangamma and Bhavamma; of these, the two sons and the daughter Ammanna died during Thammiahs life time. Gangaraju left him surviving his widow Chetamma and Ramayya his widow Venkamma. Ammanna was survived by her son Rudrayya, who was brought up by Thammiah. Thammiah died in 1885, Seshamma in 1904, Gangamma in 1930 and Bhavamma in 1935. After the death of Bhavamma Paddaraju (hereinafter called the plaintiff), son of Gangamma filed Suit No. 53 of 1944 in the court of the Subordinate Judge at Rajamundhry against the descendants of Seshamma and Ammanna for a decree for partition and separate possession of a third share in 17 lands, described in Schedule B to the plaint as "agricultural land and measuring in the aggregate 51 acres 72 cents in Patta No. 12 in village Pandalpaka in Pithapur Zamindari" and in Schedule C described as three houses with sites thereof in village Pandalpaka. To this suit Jagggarayudu 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 Pitnapuram Zamindari and that after Thammiahs death the lands were managed with the permission of the plaintiff and his brother Venkataraju, in the first instance, by the two daughters-in-law of ThammiahChetamma, 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, 1935.2. The suit was resisted by the descendants of Seshamma and Ammanna principally on the plea that in the lands describe in Schedule B Thammiah had no proprietary right and that occupancy right therein 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 favour of Veeriah-who was 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 considered, 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 plaintiffs claim for partition of the houses and sites described in Schedule C only and awarded a third share to him, another third share to Ramanna and the remaining third share collectively to defendants 31 and 32 sons of Venkataraju.3. In appeal, the High Court of Madras modified the 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 and a third share to defendants 31 and 32 together with mesne profits from March 18, 1935, the date of Bhavammas death.With certificate under Art. 133, this appeal is preferred by the descendants of Seshamma and Ammanna.

Reasoning:
We lands are within a permanently settled zamindari under Madras Regulation XXV of 1802, and it is common ground that Thammiah was cultivating the entire area of the lands during his life time. There is no evidence indicating that his possession was ever disturbed during his life-time. There is again no evidence about the commencement of the occupation of Thammiah or his predecessors; commencement of their occupation is therefore lost in antiquity. The lands are described in the various documents, to which we will presently refer, as "jeeroyati lands" Thammiah as "jeeroyati ryot", and after his death his daughters-in-law and grandson Ramanna were similarlyevidence does not justify the inference that Thammiah was inducted on the land by Ext. D-1. There is even no evidence that the land was acquired from the zamindar by the members of Thammiahs family, or that the ancestors of Thammiah were not on the land before the zamindari rights accrued to the zamindar. It is also not disputed that lands in zamindaris in the Madras Presidency were held in occupancy right by many ryots even before the Madras Estates Lands Act, 1908 wasright 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 factsdo 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 latters holding, rests not on the narrow ground of burden that whoever alleges title and claims relief an that footing must establish it; the presumption has its roots in the system of land tenure and in the custom 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 thesuch a covenant is by itself not sufficient to justify the inference that the ryots tenure was precarious. It appears that since the decision of the Madras High Court in Chockalinga Pillai v. Vythealinga Pundara Sunnady, 6 Mad HCR 164, that neither the Rent Recovery Act, nor the regulations operated to extend a tenancy beyond the period secured by the express or implied terms of the contract creating it, the zamindars were accustomed to take muchilikas or other writings from their ryots admitting, notwithstanding the true nature of their rights, that their tenure was restricted, orwould be unreasonable, therefore, to attach any undue importance to the recitals of the nature contained in Exts. D-1, D-2 andis true that if there were some reliable or substantial evidence to show that the tenancy had commenced after the zamindari rights accrued or that otherwise the tenant"s right was restricted, the value to be attached to the recitals of the nature set out may be greater; but there are no circumstances in this case lending strength to the recitals contained in Exts. D-1, D-2 andwe have no doubt that the Maharaja of Pittapur, the zamindar, never intended in the least to take away the B Schedule lands from Tammayyas heirs and give them to Venkamma and Chittamma who were not heirs and we hold that he renewed the patta in favour of these two widows, as they were considered by him to be representing Tammayyas estate, being his widowed daughters-in-law." In our view, this in the circumstances of the case, is a correctis no evidence on the record that besides the lands mentioned in Schedule B there was any other agricultural land of which Thammiah was possessed and which had devolved upon Rudriah and Ramanna. It is admittedly out of the property of Thammiah which had devolved upon Rudriah and Ramanna that maintenance was agreed to be given, and if Thammiah was not possessed of any property other than the lands in Schedule B, Ext. P-1 must lend strong support to the inference that the lands in Schedule B were regarded at the date of the maintenance deed as belonging to the estate of Thammiah out of which Venkamma was entitled to maintenance. The assumption that the property had devolved upon Rudriah and Ramanna is evidently not true. So long as the daughters or any of them were alive, they were, according to the Hindu law applicable to the Madras Presidency, owners, though for their lifetime only, of the estate left by Thammiah. Ext. P-1 does therefore lend support to the case 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 by Ext. P-1 her name was omitted from the muchilikas and the pattas subsequently executed. Pattas D-6 and D-8 are, as we have already stated, in favour of Chetamma andHigh 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 circumstances, we think the inference of the High Court is correct. Enhancement of rent of the lands from time to time does not lend support to the inference that fresh pattas and muchilikas were not in recognition of the previous rights. It is pertinent to note that 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 they 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 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 1905 it was well known that legislation of the nature, which was ultimately enacted as the Madras Estates Land Act, l908, was on the legislative anvil and no reliance can be placed upon the statements made in the notice which does not appear to have been followed by proceedings, for enforcement of the claim to possession. It is common ground that on January 16, l906, the zamindar issued in favour of Chetamma and Ramanna a patta in respect of the same lands for an annual rental of Rs. 578-4-0, rent having been enhanced in respect of Sr. Nos. 46 and 358the materials placed, we are unable to express any definite opinion on this part of the case of the plaintiff.17. To summarise, there is no evidence to show that occupation of the lands by Thammiah commenced under the zamindar and there is no evidence as to the terms on which Thammiah or his predecessors were inducted on the lands: the commencement of the tenancy and the terms thereof are lost in antiquity, but Thammiah and his descendants are proved to have continued in possession of land uninterruptedly till the enactment of the Madras Estates Land Act, 1908. In the light of the presumption 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 irresistible that Thammiah was the holder of the occupancy rights in the lands and that these rights devolved upon his successors and that the occupancy rights in the lands were not acquired by virtue of the provisions of Madras Act VI of 1908.18. Before parting with the case, a minor question relating to mesne profits awarded to the plaintiff and defendants 31 and 32 must be mentioned. By his plaint the plaintiff claimed mesne profits in respect of his share for three years prior to the date of the suit. He valued the claim for mesne profits at Rs. 3,800-past profits on plaintiffs 1/3rd share for two years 1940 and 1941 at Rs. 2,280 and past mesne profits on plaintiffs 1/3rd share for the year 1942 at Rs. 1,520. The trial court dismissed the plaintiffs suit as to his share in property described in Schedule B. The High Court in awarding a third share to the plaintiff and another third share to defendants 31 and 32 collectively also awarded past mesne profits from the 18th of March, 1935, i.e., the date of the death of Bhavamma, along with future mesne profits regarding the shares in the B and C Schedules properties. But the High Court could not award mesne profits prior to August, 1940 which had never been claimed by the plaintiff in the