Allowed

G.Ranganathan v. Union of India

Madras HC17 Nov 2017AS/212/2002

Case brief

AI extract

What is this about?

This court allowed an appeal regarding lands granted in 1840 with conditions for building a choultry. The court held that descendants of the grantee proved the land was under cultivation at the time of 1854 enfranchisement, making them absolute owners, thus invalidating the 1963 order to resume the land.

What did the court decide?

The order of the Chief Commissioner reunifying the land with the domain was set aside; descendants declared absolute owners by virtue of the 1854 decree.

G.Ranganathan Vs Union of India — Succession and Inheritance | Madras HC (2017)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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JUDGMENT RESERVED ON: 15.09.2017 JUDGMENT PRONOUNCED ON: 17.11.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

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A.S. No. 212 of 2002 and CMP No.257 of 2017

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Dr.G.Ranganathan ... Appellant/Petitioner
Vs
1.Union of India,
Rep. by Government of Pondicherry
Lt.Governor,
Pondicherry. ... Respondent
2. Rajagopalsamy ... Respondent/
Intervening party

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Appeal filed under Sections 9 and 10 of the Pondicherry Administration Act, against the judgment dated 12.11.2001 made in Administrative case No.13 of 1963 on the file of the III Additional District Judge at Pondicherry.

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For Appellant : Mr.G.Masilamani, Senior Counsel for M/s.G.M.Mani Associates For 1^st Respondent:Mr.R.Gandhiraj, Govt, Pleader (Pondy) Assisted by Mr.J.Kumar, Govt. Adv.

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J U D G E M E N T

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The legal representatives of the petitioner in Administrative Case No.13 of 1963 on the file of the III Additional District Judge, Pondicherry, are the appellants. These proceedings have a chequered history.

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One Ponnamallee, wife of Krishnasami was granted certain lands of an extent about 2 kanies and 39 kuzhies equivalent to about 5 acres by an order of the then French Government on 23.03.1840. The said grant further reads that land bearing mulberry trees, forming part of the farmer grant to St.Hilaire was bestowed on Ponnamallee, husband of Krishnasami, on condition that the grantee causes a choultry to be built

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therein and to dig a pond within a time limit of two years. The said grant was confirmed by an order (Arrete) issued in the name of the King on 05.04.1841. In the said order issued on 05.04.1841, the grant was made subject to certain conditions. One of the conditions that was imposed under the Arrete dated 05.04.1841 was that the grant will be withdrawn if she fails to construct the choultry and dig a pond within two years i.e. by the end of March 1842. It is not in dispute that the grantee, namely Ponnamallee had complied with the conditions imposed by the Arrete dated 05.04.1841 and she continued to be in possession of land along with a choultry and the pond for several years thereafter. While so, by an order dated 25.06.1963, the Chief Commissioner cancelled the grant and the same was given effect by an order/Arrete dated 25.06.1963. The legal representatives of Ponnamallee, who had by then come into possession of the property in question assailed the said cancellation before the “Conseil du contentieum Administratif” at Pondicherry. Upon the enactment of the Pondicherry Civil Courts Act in 1966, the said proceedings stood transferred to the file of the District Court at Pondicherry. The basis of the revocation of the grant was that the purpose for which the grant was made in the year 1841 is no longer relevant, and since 1947, a portion of the land was let out for commercial purposes.

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According to the legal representatives of the grantee, the cancellation itself was at the instance of the tenants, who had defaulted in payment of rents, against whom eviction proceedings were launched by the legal representatives of the grantee. The cancellation of the grant made by the Chief Commissioner was challenged by the legal representatives, questioning the competence of the Commissioner to cancel the grant on the ground that the grant being an unconditional grant, the same cannot be cancelled. It was also contended that in view of the enfranchisement that had taken place in the year 1854 in the French Colony, the grantee has become the absolute owner of the property and the Government as such was denuded of the rights to cancel the grant exercising the sovereign right. It was also contended by the legal representatives of the grantee that the purpose of the grant did survive. In fact the finding of the Chief Commissioner that the purpose of the grant does not survive was attacked by the legal representatives of the grantee as a distortion of fact.

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Apart from the above, several grounds were raised to invalidate the order of cancellation dated 25.06.1963 passed by the Chief Commissioner. The III Additional District Judge, Pondicherry, who had heard the matter, at the first instance,

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by an order dated 10.09.1969, framed the following points for determination.

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Whether the Conseil du contentieum Administratif has jurisdiction to entertain the petition?

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Whether the Administration has got power to cancel the grant?

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Whether the petitioner has acquired an irrevocable right of ownership over the suit property?

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Whether any long term leases have been executed by the grantee and if so whether that fact makes the grant liable to be cancelled?

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Whether the petitioner is bound to keep accounts of income and expenses relating to the grant and if so whether the failure of such an obligation makes the grant liable to be cancelled?

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Whether the petition earned a large sum out of the grant and if so whether such fact makes the grant liable to be cancelled?

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Whether it is a fact that for a number of years the choultry was not frequented and if so whether that circumstance makes the grant liable to be cancelled?

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Whether the object for which the grant was made has ceased to exist and if so whether that circumstances make the grant liable to be cancelled?

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The III Additional District Judge on consideration of the evidence on record concluded that the “Conseil du contentieum Administratif” has got jurisdiction to entertain the petition and on the second point it was held that the administration has no power to cancel the grant unilateraly. In fact, the learned III Additional District Judge concluded that the administration being a party to the grant cannot invest itself with the power of deciding whether the conditions prescribed for the reversion of the land to the domain have been complied with or not.

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On Issue No.3, the learned III Additional District Judge concluded that the grantee or the legal representatives have not acquired a revocable ownership over the suit property. The learned III Additional District Judge further concluded that execution of long lease in favour of the tenants by the grantee

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and her legal representatives cannot be a ground for cancelling the grant. Though the learned III Additional District Judge concluded that the fact of non keeping of accounts would not constitute a ground for cancellation, he also observed that it would be in the interest of the grantee to maintain accounts so that she would be entitled to claim damages in case of illegal cancellation of the grant. On point No.6, the learned III Additional District Judge found that there is nothing wrong in the grantee who undertakes to serve the public to be remunerated for her efforts out of the income arising from the grant. Therefore, Point No.6 was answered against the administration. Point Nos.7 and 8 were taken up together for determination and the learned III Additional District Judge concluded that the grant has become vulnerable as the purpose of the grant is denuded of its scope. Though the administration would claim it has completely ceased to exist, such claim has not been proved by the administration. Upon such conclusion the learned III Additional District Judge found that an unilateral cancellation of the grant is not proper and therefore, the Arrete dated 25.06.1963 canceling the grant made to Ponnamallee was set aside. This order made by the III Additional District Judge, Pondicherry on 10.09.1969, was challenged by the Government of Pondicherry in AS No.24 of 1970 before this Court. The respondents, viz. the legal representatives of the grantee have filed their cross objections also. This Court by judgment and decree dated 21.11.1975, concluded that the Government had the power to cancel the grant. In fact in this court, the claim of the respondents that they have perfected title by having been in possession for over a period of 30 years in view of Article 2262 of the Code Civil was rejected by this Court and this Court concluded that the Government has got the power to cancel the grant. This Court finally concluded that Article 6 of the ordinance of 1828 would apply and the land would reunite in favour of the domain by statutory operation. This Court, however, took note of the enfranchisement that had taken place in the year 1854 and found that such enfranchisement would apply only to lands that were under cultivation. This Court, therefore, felt the need for more evidence and a better and thorough examination of the issue relating to enfranchisement and proof of actual cultivation, set aside the findings of the learned III Additional District Judge and remitted the matter to the trial Court leaving it open to the parties to let in both oral and documentary evidence. I think it will be useful to reproduce the object of the remand, as set out by this Court in the judgment dated 06.12.1975

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“In view of above findings, the cross-objections will stand allowed to the extent covered by the main judgment and the question whether the conditions

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adumbrated under Article 6, namely whether the institution has ceased to serve the purpose for which it was granted, have been satisfied in the instant case and the further question whether the lands were actually under cultivation during the time of enfranchisement would be decided on merits.”

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It appears that a Letters Patent Appeal was filed against the judgment of this Court made in AS No.24 of 1970 in LPA No.12 of 1977 by one of the respondents/legal representative of said grantee Ponnamallee. The Letters Patent Appeal came to be dismissed by the Division Bench on 19.04.1977. Thereafter, the III Additional District Court, Pondicherry, took up the matter for consideration pursuant to the order of remand. By the judgement and decree dated 12.11.2001, the learned III Additional District Judge after remand, framed the following issues:

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Whether the purpose for which the concession was given ceased to exist or ceased to serve the purpose for which it has been created?

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Whether the land and the choultry including the pond have been used strictly in accordance with the mandates as contained in Arrete dated 23.03.1840 and as envisaged in Arrete dated 5^th April, 1841?

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Whether the said property was leased out for any long tern without the authority of the Government?

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If so, whether that cessation/default would ensue in reuniting the entire property given in concession with the Government by virtue of statutory operation?

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Under the second part, the learned Judge framed the

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following issues:

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Whether the said land which was the subject matter of the concession was under cultivation by Ponnammalle or her heirs as on the date of commencement of the decret dated 16.01.1854 or at any time thereafter?

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If so whether Ponnamallee and /or her heirs became the absolute owners of the said property?

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By its judgment dated 12.11.2001, the learned III Additional District Judge concluded that the legal representatives of the grantee are not entitled to benefits of

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the enfranchisement that took place in 1854 inasmuch as they have not established that they have been personally cultivating the land. The learned III Additional District Judge also found that once the land is held to be a land gifted for charitable purposes, it would be covered by Article 6 of the ordinance of the year 1828, and once it is shown that the purpose of the grant had ceased to exist the grant would automatically reunite with the domain. The learned III Additional District Judge would conclude that once it is found that the claimants, viz. the legal representatives of the grantee Ponnamallee are not entitled to the benefits of the enfranchisement, the object of the grant having been ceased to exist, the grant should reunite with the domain and therefore affirmed the order of the Chief Commissioner, dated 25.06.1963.

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Aggrieved by the said judgment and decree dated 12.11.2001, the legal representatives of the grantee are before this Court by way of this Appeal.

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I have heard Sri. G. Masilamani, learned Senior Counsel appearing for M/s.G.M.Mani Associates for the appellant and Sri.R.Gandhiraj, learned Government Pleader, Pondicherry appearing for the 1^st respondent.

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On the side of the appellants P.W.1 to P.W.3 were examined and Exhibits A1 to A34 were marked and on the side of the respondents R.W.1 to R.W.7 were examined and Exhibits B1 to B11 were marked. Exhibits C1 and C2 were marked by the Court.

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Both Sri.G.Masilamani, learned Senior Counsel appearing for the appellant and Sri.R.Gandhiraj, learned Government Pleader, Pondicherry would agree that the only question that it is to be decided in this appeal is as to whether the conclusion of the learned III Additional District Judge, Pondicherry, with reference to the enfranchisement is correct or not. The other issues relating to the power of the Chief Commissioner to order cancellation of the grant etc. have been decided by this Court even in the Appeal in AS No.24 of 1970. The remand itself was necessitated because this Court felt that if the grantee or her legal representatives are shown to be entitled to the benefit of the enfranchisement that took place in 1854, then the question as to whether the grant could be recalled by the Chief Commissioner will have to be decided by this Court. On this issue relating to the question of enfranchisement, the learned District Judge had concluded that neither Ponnmallee nor her legal representatives are personally cultivating the land and

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therefore, they are not entitled to the benefits of the enfranchisement. The learned III Additional District Judge also rejected the evidentiary value of Exs.A1 to A3 on the ground that they have emerged pending the litigation. Upon the conclusion that the legal representatives of the grantee Ponnamallee have not established that they are personally cultivating the lands in question and upon holding that that the legal representatives of the deceased Ponnamallee had let out the property for commercial purposes concluded that the successors in interest of the grantee Ponnamallee had violated the condition of the concession. The learned III Additional District Judge also took note of the fact that the conversion of the land granted, by the legal representatives and diversion of the same for commercial purposes would disentitle them from claiming that they are the owners of the property as per the enfranchisement that took place in 1854. On the above findings, the learned III Additional District Judge upheld that the order of the Chief Commissioner in reuniting the land with the domain. Further, the absence of proof of personal cultivation by Ponnamallee or her descendants was also taken note of by the learned III Additional District Judge to conclude that they are not entitled to the benefits of the enfranchisement.

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Mr. G. Masilamani, learned Senior Counsel appearing for the appellant would contend that the learned III Additional District Judge committed a fundamental error in assuming that Exs.A1 to A3 are documents which came into existence subsequent to the filing of the suit. Inviting my attention to Exs.A1 to A3, the learned Senior Counsel would vehemently contend that the learned III Additional District Judge had taken the date of issue of the copy of the document as the date on which the the document came into existence. He would point out that Exs.A1 to A3 are Revenue Records relating to the year 1850. He pointed out the endorsement in page 3 of Ex.A1, which reads as follows:

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“1850 ml';fy; igkhc&; fzf;fpypUe;bjLj; vGjpa gpujp”

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The learned Senior counsel also pointed out similar endorsements found in Ex.A2 as well as Ex.A3.

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Mr.G.Masilamani, learned Senior Counsel would further submit that the learned District Judge had erred in concluding that these documents came into bing during the pendency of the suit. He would also point out that all the three Exhibits, viz. Exs.A1 to A3 contain an endorsement, which reads as follows:

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M.B.B.S. mth;fSf;fhf V.R.MWKf brl;oahh; nfl;Lf; bfhz;ljpd;nghpy; nkw;go nfs;tpapd; jiyg;gpy; 1965 Mz;L $dthp khjk; 20e; njjpapy; ,iuthp tprhuizf;F gjpYiuath;fs; bfhLj;j cj;jput [g;gof;F mtUf;F ,e;jf; fzf;Fg; gphpj;Jf; bfhLf;fg;gl;lJ/ ”

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Relying upon the above said endorsement the learned Senior Counsel would submit that it is a copy of the Paimash accounts of the year 1850 that were issued to one Aroumouga Chettiar, who had made a request on behalf of Dr.G.Gopalraj, in the year 1965. The learned Senior Counsel would also contend that the rejection of Exs.A1 to A3 by the learned District Judge on such erroneous premise had resulted in the learned District Judge misdirecting himself as to the nature of land in question. The learned Senior Counsel would also rely upon the documents, viz. Exs.A14, A15, A16 and A17, which are lease deeds of the years 1894, 1901, 1918 and 1928 to show that the lands were being cultivated either directly or through lessees as agricultural lands, at the time of enfranchisement and thereafter also.

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The learned Senior Counsel would also contend that the Government itself had treated the legal representatives of Ponnamallee as owners and sought to enter into sale transactions with them under Ex.A10 and A11 dated 29.03.1938 and 02.04.1938. Relying upon the above documents Mr.G.Masilamani, learned Senior Counsel appearing for the appellants would contend that the grantee Ponnamallee has become owner of the property as per the enfranchisement that took place in the year 1854. He would also rely upon the Tax receipts marked as Exs.A20 and A21 to show that the tax free grant was converted into a ownership and the land tax was paid by the legal representatives of the Ponnamallee under Ex.A20 and Ex.21 during the year 1960. The learned Senior Counsel would also contend that the learned III Additional District Judge erroneously came to a conclusion that the land is being utilised for commercial purposes which is contrary to the evidence under Exs. A1 to A3. This conclusion of the learned III Additional District Judge, according to Mr.G.Masilamani, learned Senior Counsel appearing for the appellant, cannot be sustained in view of the fact that the once the lands are shown to be under cultivation at the time of enfranchisement in 1854 the land would vest in the person, who cultivated it and the grantee thus becomes the absolute owner of the property and therefore, whatever he/she does thereafter, cannot be a ground or reason to hold that the grantee is not entitled to the benefits after enfranchisement. In other words the contention of the learned Senior Counsel is that once it is found that Ponnamallee or her descendants are entitled to the benefits of

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enfranchisement, they would become owners as early as in 1854 and therefore whatever they did or do thereafter cannot be taken into the account while deciding as to whether they are entitled to the benefits of enfranchisement or not.

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Placing heavy reliance on Exs.A4 and A5 which is the matrice cadastrale for the year 1950, the learned Senior Counsel would contend that even in the year 1950, the land shows were assessed to tax in the name of Govindarajaswamy S/o.Ponnourangapoulle. He would also draw my attention to Ex.A5 which is the plan of the land in question. According to the learned Senior Counsel, Ex.A6, which came into existence in year 1966, would show that the land was assessed to tax. Pointing out that the original grant was tax free and subsequently the land in question was assessed to tax, the learned Senior Counsel would invite me to draw an inference that the Government had treated the grantee Ponnamallee and her successors in interest as persons who have become owners according to the enfranchisement in the year 1854.

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Per contra, Mr.R.Gandhiraj, learned Government Pleader would submit that the original grant was only to an extent of 2 Kannis and 39 Kuzhies in Cadaster No.121 of Poudoupalayam Village. However, he would point out that in the subsequent land records, a larger extent of land was shown, which according to him was contrary to the pious object for which the land was granted to Ponnamallee besides that the land was converted into a commercial land. He would also submit that the income from the land should have been spent for pious purposes. While admitting that the attempted eviction of the tenants by the successor in interest of the original grantee and the complaint by the tenants had ignited the present proceedings, the learned Government Pleader would contend that the Chief Commissioner who was in-charge of the affairs during the period of transition and he had taken up the proceeding and concluded that the land vested in the Government and directed the authority to take possession.

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The learned Government Pleader would point out that there was no pleadings with reference to the enfranchisement in this case. He would also refer to the decret relating to enfranchisement dated 16.01.1854. The learned Government Pleader would point out that the object of enfranchisement was to make the tiller of the soil the owner. Referring to the objects therein, the learned Government Pleader would contend that the French Government was of the opinion that the tiller of the soil would get more attached to the land or the soil and

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give the land all its productivity value only if he is the owner of the soil and therefore, he would submit that the qualifying factor is the actual physical cultivation and not mere possession. He would also contend that as per the decret dated 16.01.1854 payment of taxes is also a pre-condition. According to him, since Ponnamallee was a grantee without payment of tax, she cannot claim the benefits of enfranchisement. He would also point out that the legal representatives did not assert their right of ownership in the lands in the lease deed that were executed by them.

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Mr. G. Masilamani, learned Senior Counsel by way of reply would point out that this Court while remanding the matter had categorically held that the question relating to cultivation has to be decided on the basis of evidence to be let in and the evidence that was available in the form of Exs.A1 to A3 alone may not be sufficient to decide the question of cultivation. Mr.G.Masilamani, learned Senior Counsel would also draw my attention to the oral evidence of P.W.3, wherein it is stated that the Choultry and the tank were situated in the south east corner of the property and in the rest of the property there was plantation of coconut trees. P.W.3 would further depose that right from the beginning his ancestors were doing paddy cultivation in a remote part and mostly the land was cultivated with coconut plantation.

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From the above arguments, the following point arises for determination in this appeal:

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Whether the grantee Ponnamallee and her successors in interest are entitled to the benefits of the enfranchisement that took place in 1854?

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In British India, pursuant to enfranchisement, Rules were framed in 1859, for enfranchising the Inams granted by surrendering the reversionery interest for an equivalent quit rent and placing the enfranchised Inam on a equal footing with private property. An Authority called Inam Commissioner was appointed and he was authorised to sell the reversionery rights of the ground and to issue title deeds to the Inamdar in proof of enfranchisement. On such title deed being issued the enfranchisement was complete and the Inam became a private property of the citizens, and the title of the grantee ceased to exist. In 1862, Madras Act 4 of 1862, viz. the Enfranchised Inams Act was passed, it exempted enfranchised personal Inams from the operation of the earlier regulation made in 1831. However, in the French regime the enfranchisement seems to have taken place a little earlier in 1854 under the decret dated

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16.01.1854. The said decret issued in the name of the King provides for enfranchisement and the object is set out in the said decret as follows:

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“Considering that under the legislation in force in India, the holders of lands in three Districts of Pondicherry are not absolute owners thereof and that they derived only from the usage and incomplete exercise attached to the ownership of the soil.

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Considering that the explicit acknowledgment of the right of ownership may alone attach the agriculturist to the soil and give to the land all its productive value.“

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The said decree further provides that

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“Those persons who are holding in any capacity whatever and pay the prescribed tax shall be declared to be absolute owners of the land they cultivated”.

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This decree has been promulgated in Pondicherry on the 1st March 1854 under Arratte No.22. Article 1 of the said Arratte No.22 declares that the decree dated 16.01.1854 is promulgated in the colony and Article 2 provides that the Head of the Administrative service is responsible for enforcement of this order and it will be registered everywhere, where it will be necessary. Of course, Mr.R.Gandhiraj, learned Government Pleader appearing for the Government of Pondicherry would contend that the benefit of enfranchisement would only go to those land holders, who had paid tax and they were shown to be in actual cultivation of the land and not to grantees like Ponnamallee, who do not engage in personal cultivation. He would also point out the payment of tax is essential requirement for a person to claim the benefit of enfranchisement.

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I do not think I could really go into the question as to whether the grantee Ponnamallee or her descendants are entitled to the benefits of enfranchisement. In the judgment in AS No.24 of 1970 this Court had in fact considered the decret relating to the enfranchisement and had observed as follows:

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“Having regard to my finding that Article 6 would apply to the instant case which would have the effect of reuniting the grant in favour of the Domaine by statutory operation and further having regard to my above finding that the enfranchisement would apply only to lands which were under cultivation and in as much as these points have not been satisfactorily dealt with by the learned District Judge, I have no

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other option but to remand the matter for fresh disposal. I set aside all the findings of the learned District Judge and direct a rehearing of this matter. Of course, it will be open to the parties to adduce both oral and documentary evidence.”

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Therefore even if Article 6 of the ordinance of the year 1828 is held to apply, if it is shown that Ponnamallee and her heirs are entitled to the benefit of enfranchisement and they become absolute owners of the property that was granted to them in the year 1840, the power of the Government to resume the land would cease. Therefore, I do not think I could really go into the questions, viz (i) Whether Ponnamallee and her descendants are entitled to the benefits of enfranchisement; (ii) Whether by virtue of Article 6 of the ordinance of the year 1828, the land granted being in the nature of the Devasthanam would revert back to the Government or unite in the domain if the purpose of the grant had ceased to exist.

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As already pointed out, this Court, after examining both the provisions of the ordinance of the year 1828, the decree relating to enfranchisement of the year 1854 and the grant made in the year 1840 in favour of Ponnamallee had concluded that if the heirs of Ponamallee could show that the lands were under cultivation at the relevant point of time i.e, at the time of enfranchisement and thereafter, they would be entitled to the benefits of the enfranchisement. In my considered opinion, the scope of remand is very limited to the extent of finding out whether the lands were under cultivation by Ponnamallee and her descendants at the time of enfranchisement and thereafter.

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In order to show that the lands were under cultivation at the time of the enfranchisement i.e., in the year 1854 the appellants would rely upon Exs.A1 to A3, which are Revenue records of the year 1850 which would show that the land in question was covered by coconut trees and also paddy cultivation. Of course the learned Government Pleader would contend that the area of the land covered by these documents is quite larger in an extent than what was gifted to Ponnamallee. I do not think there could be any dispute regarding identity of the property since, it is clear from the description that the property was the land granted for choultry. From the revenue records of the year 1850, it is clear that the grant was in the name of Ponnnamallee and the land was described as dry land and there were coconut trees and a portion of the land has been cultivated with paddy. Similarly in Ex.A2 as well as Ex.A3, it

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is shown that the land in question consisted of coconut trees in Cadastre Nos.288 and 289. Ex.A4 is a similar revenue record of the year 1850 relating to Cadastre No.286 and 287, wherein also it is found that the land has been cultivated and it contains, apart from the choultry, the pond and there are coconut trees also situate in the lands. Apart from Exs.A1 to A3, the appellants have also produced Exhibits. Ex.A7, Tax receipt dated 11.02.1950. It is also seen from Exs.A10 and A11 that a portion of the land that was granted to Ponnamallee was sought to be acquired from Ponnurangam, descendant of Ponnamallee, by the Government by paying the compensation of Rs.325/-. The appellants have also produced Exs. A14, A15, A16 and A17. They are lease deeds dated 02.01.1894, 20.12.1901, 28.12.1918 and 01.05.1929 respectively. All these deeds have been entered into by the descendants of Ponnamallee in respect of the lands now in dispute. The lease deed. Viz. A14 relates to usfructuous of coconut trees. Ex.A15 is a renewal of Ex.A14. Ex.A16 is a lease deed executed by one Sengai Naicker for a period of 3 years. The recitals in this document would show that the lessor, viz. Ponnuranga Pillai was also cultivating portion of the properties and the lessee therein undertakes to irrigate the trees that have already been planted by the lessor and he would also take care that none of the trees that are in existence are affected by his cultivation. Ex.A17 is of the year 1928 where in the descendant of Ponnamallee, viz. one Poonuranga pillai entered into a lease in respect of the usfructuous of the coconut trees in lands in dispute. Exs. A20 and A21 are tax receipts evidencing payment of Tax during the year 1960. Ex.A23 series, bunch of lease deeds and receipts issued for payment of the lease amounts for taping of toddy from the coconut trees in the suit land. Ex.A24 is the series of 17 documents which contain the accounts relating to the cultivation in the suit lands. It shows harvest of coconuts, cultivation of Ragi and planting in the suit land by the descendants of Ponnamallee. Ex.A25 is a letter dated 22.12.1946, addressed to the descendants of Ponnamallee, wherein the author furnished details of sale of coconuts etc. as well as the maintenance of the suit property. Ex.A27 is again a series of three documents which contain the details of expenditure incurred in the maintenance of the suit property. Ex.A28 is another letter addressed to Dr.Gopalraj S/o.Govindaraju Pillai requesting him to grant permission to conduct the float festival of Ellaiamman Temple in the tank situate in the suit property. Exs.A29 and A30 are again the lease deeds dated 03.08.1938 and 15.01.1948, which shows that the lands were taken on lease by lessees for cultivation. Ex.A31 and A32 are also lease deeds dated 20.02.1947 and 09.08.1941 for cultivation of paddy in the suit lands. Though, it is claimed that the object of the grant itself has been lost, the report of the Commissioner dated 18.12.1965 would

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show the existence of the choultry in as much as he observes the choultry and a pond still in existence. It is also stated by the Commissioner that since the grant dates back from the year 1828, the time when such Charitable Institutions was a great utility, the grantee should have incurred expenditure for maintenance of the institution. With regard to the claim for enfranchisement the Commissioner would observe that since the grant is not for cultivation and the land has not being cultivated by the heirs of descendants of the grantee, the same may not apply.

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Relying heavily upon the above said lease deeds, kist receipts as well as the revenue records, Mr. G. Masilamani, learned Senior Counsel would vehemently argue that the fact that the lands were under cultivation in the year 1854 at the time of enfranchisement and long thereafter has been established beyond reasonable doubt. He would also submit that what is required to be established for the purposes of enfranchisement is only the factum of cultivation and not actual cultivation by the grantee by contributing his or her own physical labour. The learned Senior Counsel would also draw my attention to the specific words in the decret of the year 1854 and contend that the words and language employed therein would show that the persons who are holding any land in any capacity whatever and would pay the prescribed tax shall be declared as the absolute owners of the land they cultivated. Therefore, according to the learned counsel, once the factum of cultivation either as Pannai cultivation or through lessees is established, the grantee becomes the owner by virtue of the decret dated 16.01.1854, which was promulgated in Pondicherry by Arrete No.22 dated 01.03.1854. On promulgation of the decret by way of an Arratte, the learned Senior Counsel would submit, that Ponnamallee, the grantee had become absolute owner of the property in question and whatever is done thereafter is in their capacity as absolute owners of the land and therefore, the conclusion of the learned District Judge that the land had been converted into the commercial area and two cinema halls and many commercial establishment have come up in the said area cannot be a ground to deny benefit of enfranchisement.

¶89

According to the learned Senior Counsel the test whether the land was under cultivation during the relevant period i.e,1854 alone is the criteria and what happens after a century in 1962, 1963 or 1964 cannot be taken into account to deny the benefit of enfranchisement to the legal heirs or descendants of Ponnamallee.

¶90

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¶91

The learned Government Pleader, however would contend that the words “they cultivated” occurring Article 1 of the decret dated 16.01.1854 would only mean personal cultivation and not cultivation through tenants. The learned District Judge had rejected Exs.A1 to A3 on the ground they have come into the existence in the year 1965 and therefore it can be concluded that the descendants are not entitled to the benefit of enfranchisement.

¶92

As rightly pointed out by Mr.G.Masilamani, learned Senior Counsel appearing for the appellants the conclusion of the learned District Judge does not appear to be correct. A reading of the contents of those documents namely Exs. A1 to A3 itself would show that they are copies of the Revenue records of the year 1850 which have been issued to one Arumuga Chettiar, who had made request on behalf of Dr.Gopalraj on 20.01.1965. I have already extracted the relevant portion of those Exhibits, which would show that those are revenue records of the year 1850 and it was only the copy that was obtained in the year 1965. Therefore, the conclusion of the learned District Judge that Exhibits A1 to A7 cannot be looked into as that have come into existence during the pendency of the proceedings cannot be said to be correct. Exs.A1 to A3, which are revenue records, clearly shows that apart from the building and the pond, the remaining land was under cultivation. If the original grant in the year 1840 shows that it was a mulberry garden that was granted to Ponnamallee with a condition that she should put up a Choultry and a Pond. After putting up the Choultry and Pond, it is seen that Ponnamallee had brought the remaining area into cultivation by planting coconut trees as well as cultivating paddy. This land appears to have remained as a Coconut grove as well as Nanja land for over a period of 100 years till 1947. This is is seen from Ex.A31, a lease deed dated 20.02.1947. It is also seen from the Ex.A30, a lease deed which is dated 15.01.1948 that nanja cultivation has been carried out in the said lands. Therefore it is futile on the part of the Government now to contend that the lands were never cultivated. An extent of 2 Kannis and 39 Kuzhis is equivalent to more than a hectare i.e, nearly 2 acres and 47 cents. Apart from putting up the choultry and pond in a smaller area, remaining areas were constantly kept under cultivation. Neither the decree dated 16.01.1854 nor the Arrete dated 01.03.1854 require personal cultivation by the grantee.

¶93

The learned Government Pleader would however, contend that the benefits of enfranchisement would not be extended to Tax free grants as in the present case. He would rely upon the Article 1 of the decret which requires the holder to pay taxes. The translated version Article 1 of decree dated 16.01.1854

¶94

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¶95

reads as follows:

¶96

“Pondicherry and the Districts belonging to it, those who are now holding the land at any capacity whatever and would pay the prescribed tax shall be declared absolute owners of the land they cultivate”.

¶97

This only means that they will be absolute owner and they can cultivate the lands, subject to the condition that they should pay the prescribed tax. I do not think the interpretation of the learned Government Pleader could be accepted. If such a meaning is to be attached to the words, who pay the prescribed tax, that will negate the earlier portion of the Article, which reads that the persons who are now holding land in any capacity whatsoever.

¶98

Yet another factor which would probablise the case that the descendants of Ponnamallee were treated as owners of the property after the enfranchisement in 1854 is the fact that the land tax has been collected for this property by the Government even in the year 1950 under Ex.P7 and under Ex.A11 dated 02.04.1938, the Government has chosen to acquire the portion of this property by paying compensation to Ponnurangam, who is admittedly a descendant of Ponnamallee. Subsequently also consistently the Tax has been collected in the year 1946, under Ex.A24 series and 1943 under Ex.A.20 series etc. These documents would undoubtedly establish that the heirs of the grantee Ponnamallee have been treated as the owners of the property right through after the enfranchisement had taken place on 1854. The claim for the benefit of enfranchisement by the descendants of Ponnamallee has been rejected by the learned III Additional District Judge, on the ground that they have converted the lands for commercial use after 1950. I am unable to agree with such conclusion of the learned District Judge. Once it is found that the lands were under cultivation in 1854 and by virtue of the enfranchisement they are declared to be the owners, whatever they do in their capacity as absolute owners thereof, cannot be a factor which would whittle down the entitlement under the enfranchisement itself. Once it is found that the grantee and her descendants are entitled to the benefits of the decret dated 16.01.1854, which was promulgated by the Arrete dated 01.03.1854 in the territory of Pondicherry, they would become absolute owners of the property right from that date. Article 1 of the Arrete 22 dated 01.03.1984 reads as follows:

¶99

“The decret of the dated 16.01.1984, which declared the present holder of the land in cultivation non-transferable owners of these lands is promulgated in the colony.”

¶100

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¶101

Thus it is clear that the intention of the promulgation of the decret dated 16.01.1854 and the Arrete dated 01.03.1854 is to vest the ownership of the lands, which were being cultivated in the persons, who were cultivating them as on 16.01.1854. By virtue of the promulgation of the Arrete dated 01.03.1854 the persons in possession would become absolute owners of the land and they will be entitled to deal with the same as their own property. The fact remains that the property was actually on the outskirts of the Pondicherry in those days and now it has become a part of the Town and had essentially assumed the character of an urban property by passage over a century, but it cannot be a guiding factor to determine whether the grantee and her descendants had become owners under the decret dated 16.01.1854. The decret does not mandate that those persons, who are vested with the ownership should continue to keep the land as agricultural land. It is a common knowledge that by the turn of the century, several cultivable lands have become commercial and housing areas. Thus, I am unable to persuade myself to agree with the conclusion of the learned District Judge, which are based on wrongful rejection of Exs.A1 to A3 and on a reasoning that the conversion of the lands into the commercial use almost after a century after enfranchisement would disentitle the descendants from claiming the benefit of enfranchisement.

¶102

From the evidence on record, viz. Exs.A1 to A3 coupled with other evidence, viz. Lease deeds which are renewed for a period of almost 50 years from 1894 to 1948, I conclude that the descendants of Ponnamallee, were cultivating the lands in question during the relevant period and they are entitled to benefit of the enfranchisement under the decret dated 16.01.1854. A report based on which the enfranchisement was made which is annexed to the said decret would also show that the intention was to modify the land taxes and the manner of regularizing the ownership of the lands in the hands of the natives in the colony. Once it is held that the descendants of Ponnamallee are entitled to the benefits of the enfranchisement and they had become absolute owners of the property in the year 1854 itself, the order of the Chief Commissioner dated 25.06.1963 has to be set aside and the same is accordingly set aside.

¶103

In the result this Appeal Suit is allowed. The Administrative Case No.13 of 1963 will stand allowed. The decree and the order of the Chief Commissioner holding that the lands in question granted to Ponnamallee under the Arrete dated 23.03.1840 will stand reunited with the domain is set aside. It is declared that by virtue of the decree dated 16.01.1854, the grantee Ponnamallee and her descendants have become

¶104

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¶105

absolute owners of the property in question. However, in the circumstances of the case, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.

¶106

Sd/-
Assistant Registrar(CS IV)
//True Copy//
Sub Assistant Registrar
jv
To
The III Additional District Judge,
Pondicherry.
+11cc to M/s.G.M.Mani Associates, Advocate SR.No.181665,81894
Copy to:The Section Officer,
VR Section,
High Court, Madras.
judgement
A.S.No.212 of 2002
1/2
RSI(CO)
sm:26.12.2017

¶107

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G.Ranganathan v. Union of India

Case brief

What is this about?

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G.Ranganathan v. Union of India

Case brief

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