[The case originally came on before their Lordships Sadasiva Aiyar and Spencer, JJ.]

Spencer, J.

The plaintiffs are the owners of the Shrotriem village of Kollur in the South Arcot District. They brought this suit against the Secretary of State for India in Council for a declaration of their exclusive title to all the rocks and hills lying within the said village except the portion acquired by the Government under the Land Acquisition Act, for the perpetual injunction against interference with their rights, for recovery of damages and for refund of the sums levied from them by way of seignior age or royalties. Though the plaint relates to the title of the lands described as mountains and hills, the parties have gone to trial on the mutual understanding that the matter at issue between them was the right of the State to collect seignior age fees on minerals.

The first issue dealt with the question whether there was an outright grant to the plaintiffs of the village including the minerals in the village and whether it was binding on the defendant. The second issue was directed to a consideration of the question whether the Inam Commissioner at the time of enfranchisement conferred a right to take minerals free of taxation and if so, whether, the Government was bound by his act supposing it to be an act in excess of his authority. The plaintiffs succeeded in both the Lower Courts but the injunction was refused.

The District Munsif found on the first issue that, although the grant impliedly included the right to quarries and minerals, Government did not at the time of the grant disable itself from claiming royalties, i.e. , the States share in the mineral produce. On the second issue he held that by enfranchisement Government had deprived itself of all rights to claim revenue or minerals, and that the prerogative of Government could not give it a right to derogate from a grant once made.

The District Judge found both the issues against the appellant. He held that the right to impose assessment which Government surrendered at the time of the Inam Settlement included the right to collect revenue on all produce of the lands, produce being treated as including minerals.

The Inam Register, Exhibit J., and the Inam title-deeds, Exhibits A, A1 and A2 show evidently that poramboke was included in the grant. Government do not dispute this fact, but they claim, not a full right to minerals but a right to take a share in such produce; in other words, the prerogative right to levy royalties at certain rates which are given in the Appendix to Standing Order No. 25 of the Standing Orders of the Board of Revenue.

On the first point, it must be regretted that the then original documents of title in Hindi, Telugu and Persian referred to in column No. 12 of the Inam Register were not available at the trial. We have been referred to Exhibit I, which is an English translation of a purvana produced from the Collectors Office which purports to be a regrant by Nabob Anavaroodin, Khan Bahadur, on a perpetual shrotriem tenure of the entire village of Kollur to Lakshminarasimhachari, Zemindar, for subsistence, in order that having appropriated to his own use the produce of the seasons each year, he may be assiduous in offering up prayers for the lasting prosperity of the Empire. The document then imposes on him the term that he should pay regularly to the Sirkar the established amount of the shrotriem which is stated to be the sum of 110 Gory Chukrams.

In Chinnan v. Kondama Naidu (I. L. W., 41), we referred to the meaning of Shrotriem tenure as defined in Naryanasawmy Naidu v. Secretary of State for India (24 M.L.R., 36), and in Wilsons Glossary According to that definition, a shrotriem consists of lands or a village held at favourable rates. According to the author of Wilsons Glossary, a shrotriem grant gives no right over the lands and the grantee cannot interfere with the occupants as long as they pay the established rents. In Suryanarayana v. Potanna (15 M. L. T., 268) we referred to Rajya v. Balakrishna Gangadhar (I.L.R., 29 Bom., 415) in which grants to inamdars were considered to be ordinarily grants of the royal share of the revenue. There is no language in Exhibit I which can be regarded as depriving Government of its right to charge royalties on minerals. In Woolley v. Attorney-General of Victoria ((1877) 46 L.J., (P.C.) 18), it was held that the prerogative right of the Crown to minerals in mines in the Colonies would not pass under a grant of waste land from the Crown, unless the intention that should so pass was expressed by apt and precise words. Minerals have been held to include freestone in Bell v. Wilson ((1866) 35 L.J. Ch. 337) limestone in Fishbourne v. Hamilton (25 L. R. Irish, 483); granite in Attorney General v. Welsh Granite Company (35 W. R., 617); clay in Earl of Jersey v. Neath Poor Law Union ((1889) 58 L.J., Q.B, 573); and stone used for mending roads and worked by quarrying from the surface in Midland Railway Co. v. Checklay ((1867) 36 L.J., Ch., 380). In Tituram Mokerjee v. Cohen (I.L.R., 33 Cal., 203) [LQ/CalHC/1905/29] ., the Privy Council agreed with the Calcutta High Court in holding that a grant of rents and profits for the life of the grantee could not be presumed to carry with it the right to open mines and remove minerals which are subjacent portion of the soil.

It is contended for the respondents, that, as the title-deeds, Exhibit A series, and the extract from the Inam Register, Exhibit J, show that poramboke waste and uncultivable land was included in the grant and as quarrying is the only use to be made of land which is bare rock apparent on the surface, Government must have intended to give such use of the land as it was capable of. The Government Pleader concedes that some interest in waste land has passed to the shrotriemdars, but he points to the fact that Government fixed the assessment on the basis of cultivation as an indication that it was the agricultural rights, not other rights, that Government parted with. The District Judges view that, if the proprietary right in the lands belongs to the plaintiffs, then they are the owners of the sub-soil and therefore of the minerals is not supported by authority. The District Munsifs finding that, though the Government could not claim exclusive rights over quarries and minerals in this village, there was no thing to prevent them from claiming the States share of the produce in the minerals is sounder, and this finding is enough for deciding this point in defendants favour, seeing that by imposing charges for quarrying Government did not go further than exercise the right which they claim to share in the mineral produce. Granting that shrotriemdars got by virtue of their grant a right to make use of the surface of the soil for certain purposes and to extend cultivation without liability to further assessment, the prerogative right of the Crown to a share in the minerals which are under ground is not impaired by an absolute grant in which there are no words to signify the surrender of such prerogative.

The second question to be determined is whether the act of enfranchisement in 1862 interpreted in the light of the rules for enfranchising inams and in the light of Acts IV of 1863 and VIII of 1869 had the effect of destroying the rights of Government, if any existed after the grant under Exhibit I in 1750. The scheme of inam enfranchisement was a matter deeply considered by Bhashyam Iyengar, J. in Gunnaiyan , v. Kamakchi Ayyar (I.L.R., 26 Mad., 339). At Page 343, he observes, The declared policy of Government where the Inam Commissioner was appointed in 1859 and rules framed for his guidance was to waive its right of resumption and enfranchise personal inams and convert them into ordinary heritable property and forego its reversionary right in consideration of the holder of the inam agreeing to pay a quit-rent, the rates of which varied with reference to the value and prospect of the reversionary claim of the Government in each case. Before enfr anchisement if the line of the grantee become extinct, the reversion lay with the Government. By the process of enfranchisement what the Government did was to exchange its reversionary rights for a favourable quit-rent or jodi and it gave an indefeasible right to property. That this was its effect is apparent by a reference to Standing Order No. 52 which contains rules for enfranchising inams. The rates of conversion are made more or less favourable in proportion as the inamdar had competent heirs at the date of enfranchisement, or had no heirs competent to continue the family, or was without heirs altogether or had a legally defective title. The rule appears to have been framed purely on a calculation of the chances of the reversion falling in. In Boards Standing Orders, Vol. II, Appendix, page 182, Rule 3, quit-rent is described as a sufficient compromise for the right of reversion possessed by the Government over the inam, and again in Rule No. 2 the inamdar is given an option to convert this restricted tenure into a freehold with the full powers of alienation by gift, sale, adoption or otherwise, by consenting to the payment of an annual quit-rent. No value is placed on the mineral rights in computing the value of the rights parted with and in settling quit-rent at one-eighth, one-fourth, or one-half of the assessment of the land. Rule 28 runs as follows: Inams once converted into freeholds in accordance with the foregoing rules will be subject to no further interference on the part of the Government, except such as may be necessary for the punctual realisation of the quit-rent charge thereon; and even this decree of interference may be avoided, at the discretion of the inamdar, by the purchase, once for all, of the fee simple of the land by paying a sum equal to twenty times the amount of the annual quit-rent. The Respondents Pleader relies on this undertaking of Government not to interfere as forfeiting the rights of Government to make any additional charges. The language of the rule is, no doubt, wide and the importation of the English legal phraseology by the words free-hold, fee simple, is unfortunate and misleading. But I would read this r ule together with the preceding rules and conclude from it that Government only meant that they would not interfere with the estate and interest of the land vested in the inamdar. I do not think that it was intended that these words should affect the existence of the rights of the State over minerals if they then existed.

In the Boards Standing Orders, Edition of 1890, Chapter I, Order No. 15, conditions regarding quarrying and excavating are set out. In this order it is declared that the Sate lays no claim to minerals in enfranchised inamlands. But in the Edition of 1907, there is a change. Here it is declared that no claim to minerals should be made on behalf of the State in lands held on Inam tenure where, apart from the title-deed issued by the Inam Commissioner, there has been conveyance of the States rights to minerals in the original grant either expressly or by necessary implication; and in the next paragraph clause ( e ) it declares that claims should be made to the States share (as determined by the rules below) in all mineral produce in lands held on inam tenure which do not fall under paragraphs 1 ( e ) (stated above) or 3 ( c ) (which relates to service inams). Government appear to have changed their views as to the rights they possessed to minerals in inam lands and this change seems to have taken place about 1905; but the circumstances which led up to it have not been disclosed. The Boards Standing Orders have not the force of law but are merely directions for the guidance of Executive and Administrative Officers of the State in the Revenue Department. In my opinion, any misdirection which appeared through a misconception of what rights were vested in the Crown would not operate as a forfeiture of such rights by its publication in a work of this sort, provided that Government had not expressly or by implication surrendered such rights to the holders of the inam lands by any previous grant or by the act of enfranchisement.

No issue has been taken on the question of estoppel, although the District Munsifs judgment contains some observations on the point.

The question whether the plaintiffs have acquired any prescriptive right is the subject of issue No. 3 and this has been found against them. The District Munsif rightly held that the right of the Crown to claim its share in minerals was a prerogative right which could not be extinguished by limitation. See ( Boddupalli Jaganadham v. The Secretary of State for India in Council (I.L.R., 27 Mad., 16), as to the limitation period within which the Government should exercise its prerogative of imposing assessment). Moreover the District Munsif held that adverse possession had not been proved.

It is unnecessary to consider whether Government has any power to derogate from its grant seeing that I have found that there was no forfeiture of surrender of mineral rights by any grant to these Shrotriemdars at any time. The award of compensation by Government for the acquisition of a certain extent of land in this village taken up for quarry cannot be treated as an admission against them of their rig its to claim a share in the proceeds of minerals, seeing that what was acquired under the Act was, whatever rights the Shrotriamdars possessed in the surface soil of the land in which that quarry was situated:

As I have held that the Inam Commissioner did not dispose of the Governments mineral rights when he enfranchised the inam, it is unnecessary to consider the effect of Acts IV of 1862 and VIII of 1869, which were passed to validate the acts of the Inam Commissioner and to remove doubts as to the rights of third parties.

I would therefore allow this appeal and dismiss the suit with costs throughout.

Sadasiva Aiyar, J. In this case the learned District Munsif Mr. M. R. Narayanaswamy Iyer has written an able and very well-considered judgment which has been confirmed by the learned District Judge who heard the case on appeal. As I agree with the judgments of both the Lower Courts, I shall try to be as brief as possible in expressing the reasons for my own judgment, especially as I need not repeat the facts which have been fully set out by my brother in the judgment just now pronounced by him.

Reading the entries in the Inam Register (J.) with the title-deeds A, A1 and A2 granted by the Inam Commissioner, I think it difficult to come to any other conclusion than that full freehold interest in the whole village was recognised by the Inam Commissioner on behalf of the Government as vesting in the Inamdars, the estate so vesting being not liable to any further imposition of burdens in the shape of revenue assessment by the Government other than the burden of the enhanced quit-rent of Rs. 350 imposed by the Inam Commissioner. As decided in Gunnaiyan v. Kamakchi Ayyar (I.L.R., 26 Mad., 339), Pingala Lakshtnipathi v. Bommireddipillai Chalamayya (I.L.R., 30 Mad., 434), and Subbaroya Chetty v. Aiyaswami Aiyar (I.L.R., 82 Mad., 86), the primary object of enfranchisement by the Inam Commissioner is, no doubt, to give up the reversionary estate vested in the Government, The object was in other words, to free the owners of the lands from the liability to forfeiture of their estates if they made alienations to a stranger and to convert the lands into ordinary heritable and alienable property (not to restrict the inheritance to lineal heirs) and to permit the owner (if a Hindu) to make adoptions according to the ordinary Hindu Law (and not merely from the sons of undivided agnates), that is, the restrictions imposed by the old inam rules in respect of succession, adoption, and alienation were done away with. See I.L.R., 26 Mad., 345.

By the enfranchisement the inam is confirmed in freehold to whoever was the person then entitled to the lands as inamdar and this freehold is paraphrased in the inam title-deed itself as follows:In other words, the inam will be your absolute property to hold or dispose of as you think proper subject only to the payment of the abovementioned quit-rent.

As Dr. Maclean says in his book referred to in paragraph 19 of the Munsifs judgment, these Inam title-deeds show the greatest extent to which the Government has parted with its own powers to make revenue demands upon the lands forming enfranchised inams. The Inam title deed shows property against Government and a quiet-rent fixed for ever. The enfranchised Inamdars are in that book treated as owning a better title in their inam lands as against the Government than even the Zemindars. That Zemindars under the Permanent Settlement sannads have had their varying assessment changed into fixed demands cannot be denied. And Sir Bhashyam Iyengar, J., in Gunnaiyan v. Kamakshi Ayyar (I.L.R., 26 Mad., 889, 350) says that the Inam Settlement has got the same effect as the Permanent Settlement, that is, the effect of changing a precarious tenure into permanent property and a varying assessment into fixed demand and thus enfranchising the estate from a tenure that subjects it to the burden of assessment thereon being increased from time to time at the will and pleasure of the sovereign authority . Sir Bhashyam Aiyangar, J. quotes as authority for this opinion of his, the observation of Sir T. Muthuswami Iyer, J. In Narayana v. Chengalamma (I.L.R., 10 Mad., 1). I am therefore quite clear that the Government has no right to impose further revenue burdens on the inam estate whether they call it royalty or assessment, as inamdars have got a freehold title to their lands under the inam title-deeds granted to them at the enfranchisement.

That the porambokes including the rocks and the mines underneath the land were recognised by the Inam Commissioner, (who was the authorised agent of the Government to inquire into and settle the mutual rights of the Government and the Inamdars) seems to me to be beyond controversy. Before the Inam Commissioner, not only the single title-deed (a copy of a translation of which was filed by the defendants as Exhibit I) was produced for his inspection, but nine other title-deeds which are not now forthcoming seem to have been put forward before him. The Inam Commissioner was the officer fully empowered to go into those title-deeds, and into the previous history of the enjoyment of the inam lands and to recognise on behalf of the Government whatever rights are, in his opinion, proved to exist in the inamdars. His recognition of the title of the Inamdar whichever individual the inamdar may happen to be as the title stood before the enfranchisement and also his power to bargain with the inamdar on behalf of the Government so as to make the inamdar consent to the enfranchisement on certain terms, were not restricted and his decisions within scope of this large authority are clearly binding upon the Government. The recognition of freehold right is the same thing in the eye of the law as the recognition of a right to the soul of waste lands including the rights to all the minerals, rocks and stones, up to the centre of the earth. The recognition of grant of a right to rents and profits during the lifetime of a person may, no doubt, not entitle that person to remove part of the soil itself in the shape of quarried stones or mine minerals, but the recognition or grant of a perpetual freehold right in the soil cannot in my opinion be construed so as to limit the right of the owner to take only agricultural or sylvicultural products from the soil.

While I am always inclined to hold that the State does not lose its right to communal sites like public pathways and the sites of the beds of natural streams even if the streams are not tidal or navigable/whether in Zemindari or inam estates, I feel myself unable to say that a permanent settlement by which a fully authorised officer settles the revenue in perpetuity recognise the pre-existing right of the inamdars in rocky poramboke lands and confirms such right can be repudiated by the Government.

As pointed out by the learned District Munsif the Government till about 1902 never thought that they had any right after enfranchising an inam in perpetuity to impose afterwards an additional assessment upon the inamdar simply because the owner of the enfranchised inam is able to obtain further profits than he was obtaining at the time of the inam settlement from the rocky soil fit for quarrying. Though the quit-rent was based principally upon a calculation of the agricultural rents or profits derived by the inamdar (just as the peishcush was fixed in the case of Zemindaries at the time of the permanent settlement on the actual average profits which the Zemindars are obtaining) that fact was never intended to detract from the right of either a Zemindar or an Inamdar to get in future as much profit from his land by developing his estate (without, of course, detriment to the customary rights of occupancy and other tenants which were protected by Act VIII of 1869).

So far as the Government was concerned, full rights accrued to the enfranchised Inam-holder in his estate, relieving him from liability to pay any further assessment of revenue except the quit-rent. He had even the right to commute the quit-rent in itself by payment of a lump sum to the Government as consolidated quit-rent so as to become a landholder holding an estate in fee-simple question of fact based on the construction of the documents, (including the title-deeds) in this case as to what the nature of the title of the inamdar is in the rocks in the estate comprised in his holding and the lower Courts have, in my opinion, come to a correct conclusion in this matter. I do not see that they have misconstrued any document and they were not entitled from the conduct of the Government Officers which, though it may not be binding upon the Government, is strong evidence against them and from the facts of this case to arrive at the conclusion which they have come to in respect of the extent of the plaintiffs rights. By enfranchising, the Government absolutely renounces its rights on the land and as between the Government and the Inamdar the grantees title becomes absolute. As regards the title given under the original grant by the ruling authority which reigned before the British Government, I agree with the Munsif that the Inam Commissioners entries, remarks and decisions are strong evidence that even the original grant included the soil of the rocky porambokes in the village of Kollur and by necessary implication carried with it the right to the stone quarries and the mines in the Kollur village lands. The British Government at the time of the enfranchisements or at the time of the confirmation of the original Inam might have taken into consideration the possibility of the then useless rocks yielding large profits in future to the inamdar and they might have increased the quit-rent in consequence but their officers failed to do so. This, however, is no justification for the Government going back in 1905 (about 40 year after the inam settlement) from the contract made by their authorized officer by which he gave up the Governments rights to impose in future any assessment upon the holding of the inamdars other than the increased quit-rents imposed by him.

As pointed out by the District Munsif, it must be remembered that Rule28 of the Inam rules framed in 1859 was one of the rules on the faith of which the inamdars in A2 agreed to pay the quit-rent imposed and thereby have the inam enfranchised. That rule gave them the assurance that inams once converted into freeholds in accordance with the rules would be subject to no further interferene on the part of the Government except such as might be necessary for the punctual realization of the quit-rent charged thereon. I agree with the above observation and I may be permitted to express my surprise that after the framing of Rule 28 so long ago as in 1859, the Government should try by indirect means to impose additional revenue simply because the inamdar has been fortunate enough to turn into profit those lands granted to him which were almost useless at the time of the enfranchisement.

In the result I would dismiss this Second Appeal with costs.

Under Sect. 98 (2) of the Civil Procedure Code, the Second Appeal will stand dismissed with costs. Time for Government satisfying the decree will be two months from this date.

(The Letters Patent Appeal against the judgment of Sadasiva Aiyar, J., came on before their Lordships Abdur Rahim, O.C.J., Seshagiri Aiyar and Phillips, JJ.)

The Government Pleader (Mr. V. Ramesam ) for the Appellant:The short question for decision is what was conveyed by the original grant Whatever it was it could not have been enlarged by the enfranchisement. See I.L.R., 26 Mad, 339; I.L.R., 37 Mad., 32

2. The original grant was in 1750. It was for sustenance of the grantee and allows him to appropriate the produce of the seasons. It was not the land itself that was granted. What is meant by a shrotriem is explained in Baden Powells Land Tenures, Vol. III, p. 80 and S.A. No. 1445 of 1910 . Now what was done by the Inam Commissioner was to exchange the reversionary rights for a favourable quit-rent and give the Inamdar an indefeasible title to the inam. The procedure is that laid down in O. 52 of the Standing Orders of the Board of Revenue. The Inam Commissioner fixed a quit-rent on the basis of the value of the land as cultivable land. He did not estimate the quarries, calculate the average profits from quarrying and commute the Governments share of it into quit-rent. Hence only the right to enjoy the agricultural produce was granted and not any right to mines or minerals. Even under the old grant this was all that plaintiffs got. It could not be otherwise. For inam grants in this presidency, it has now been settled, are only of the melwaram and not of the whole fee simple. See 16 M. L. J., 333; 29 Bom., 415; 24 M. L. J., 28

8. I. L. R: 38 Mad., 608, Act VIII of 1869, shows land in such grants does not mean the fee simple.

Seshagiri Aiyar, J. - Then so far as the waste lands are concerned, nothing would pass to the grantee as they are admittedly unfit for cultivation.

I do not say that. Some interest in the waste land also might have passed to the Shotriemdar. He can cultivate it if by any clearance or removal he can do so. But the Government by enfranchisement parted only with their right to share in the agricultural produce.

The right of an Inamdar to mines and minerals is intermediate between the right of a Zamindar and a ryotwari tenant. See Boards Standing Orders O. 25. In ryotwari land, the mines are the Governments, In a Zamin on the contrary they belong to the Zamindar. In the case of the suit quarries, the Government claim therefore only a share and not the entire produce.

[ Abdur Rahim, O. C. J. - If according to the Inam title-deed he gets the entire freehold why is he not entitled tq the mines and minerals In England, a tenant in fee simple is entitled to minerals.]

It all depends on the construction of the grant and the Inam title-deed. In construing the grant the ordinary rule that a grant should be construed strictly against the grantor does not apply wherever the grant is the Crown. See 6 Bom., H.C.R, 191, 12 Bom., 584, 29 M.L.J., 38

9. Therefore whatever is not expressly granted must be presumed to be reserved. The result of the enfranchisement was only the parting with the reversionary rights of the Government for a quit-rent and did not in any way affect the States right to minerals. The enfranchisement is more or less like a perpetual lease and in such a case it has been held that the perpetual lessee has no right to minerals. See 37 LA, 136.

Mr. T. R. Venkatarama Sastriar for the Respondent:The Government have no right to minerals. Whatever rights they might have had, they had parted with them by the enfranchisement. The Inam title-deed says the Inam will be your absolute property to hold or dispose of as you think proper subject only to the payment of the abovementioned quit-rent. Hence so far as the Government were concerned they reserved only their right for a fixed quit-rent and divested themselves of all other rights. The contention that an Inam is always of th e melwaram is unsound. Inams were of two kinds (1) of lands where there were no ryots owning occupancy rights; (2) of lands in which the ryot had an occupancy right. The language of all Inam grants contained the word land and so on. But the Government cannot grant what did not belong to them. Hence to make things clear and to safeguard the rights of the ryots that might be already on the land at the time of the grant, Act VIII of 1869 was passed. Hence that does not mean that in this case where the land was wa ste, the entire free simple did not pass.

The position of an Inamdar is expressed in definite and clear terms in O. 52, rr. 3, 7, 9 and 28 of the Standing Orders of the Board of Revenue. (See B.S.O., Vol. II, p. 182). If I pay 30 years quit-rent, the rules say I get the fee simple. The Government has no option to refuse my making the payment and barring all Governments interference with these lands. Prior to such payment the only right the Government has with respect to the lands is the right to collect its annual quit-rent. See R. 28.

The Inamdar is in the same position as a Zamindar so far as the right to minerals is concerned. See 26 Mad., 339, 350. Inam grants are not all of the same extent or in the same language. Whenever the grant is only of the melwaram it is usually made clear as in the grant in Gunnaiyans case . We should not put such a construction on the grant as will reduce the grant itself to an absurdity. The title-deed conveys the poramboke or waste lands. They are admittedly impossible of cultivation. The only use to which the land can be put to is quarrying. If the Inamdar cannot do that, the result is although the title-deed speaks of a grant of the poramboke the Government really meant nothing by those words and granted nothing under them.

The original grant might have included the mining right or it might not have. But that is really immaterial. It is only the grant of the Inam Commissioner that has to be construed. The conduct of the Government is evidence and very cogent evidence as to what the Government and the Inam Commissioner thought they parted with by the enfranchisement. The conduct in this case in fact precludes the Government from making the present claim. The Government have purchased stones quarried from these very lands. Later on they acquired the lands under the Land Acquisition Act and have paid compensation. The Board of Revenue itself thought the Government had no right to minerals in enfranchised Inam lands. They so stated it in O. 15 of the Boards Standing Orders, Edition of 1890. But they grew wiser and made a change in the Order in question in 1907. But that is immaterial. The Inam title-deed has been understood by the Government and the Inam Commissioner as including minerals and so Government cannot now indirectly lay any claim to minerals. See 28 Mad., 69, 13 M.I.A., 104, 110, 38 Mad., 1025.

[ The Officiating Chief Justice. Is a title recognised by the Inam Commissioner binding on the Government

It would be so unless it is shown clearly that he had no authority or exceeded its limits. Your Lordship Justice Seshagiri Aiyar sitting with the Chief Justice has so held in 1 L. W., 941.

In English Law a tenant in fee simple has a right to minerals. The royal prerogative is confined only to gold and silver. See Stephens Commentaries Bk. II, Part I, para.

8. The decision in (1877) 2 A. C. 163 relied on by Spencer, J., has been misunderstood by his Lordship, and really supports me. Even a tenant for life impeachable for waste, it has been held can quarry mines if that is the only way of enjoying the property. Goodeves Law of Real Property (5th Edition), p. 283.

On the question of construction, there is no rule that it should always be construed in favor of the Government. The same rules apply to Crown as well as ordinary grants, when there is no ambiguity in the expressions of the meaning of the language used. See 12 Moores Privy Council 473, 497 and 18 B., 676. Only where the grant is not sufficiently clear, the rule of construction in Crowns favor applies at all.

The cases in 16 M. L. J., 383, 29 B. 415, 24 M. L. J., 288 and 38 Mad., 608 are all cases between Inamdar and tenant on the land claiming occupancy right and as between them the grant was held to be of the melwaram so far as the Inamdar was concerned. But there is no such question here. They do not militate against the view that so far as the Government were concerned they parted with everything they had as a result of the enfranchisement.

The Government Pleader in reply.The function of the Inam Commissioner was only to confirm grants and not to add to their scope or vary their extent. See I.L.R., 26 Mad., 39

9. The language of the Inam title-deed is absolutely useless so far as it is made to yield a meaning opposed to Anwaradins grant. The subsequent Acts of Government officials or declarations by the Board of Revenue do not affect the question. See 29 M. L. J., 38

9. The rules referred to by the other side simply mean that so far as the Inam, i.e. , the right to cultivate and get the produce was concerned there will be no interruption. None of the rules affect the existence of States right to minerals if they were not granted under the old grant.

Abdur Rahim, O.C.J.

[1] I agree in the judgment which my learned brother Seshagiri Aiyar, J. is going to read.

Seshagiri Aiyar, J.

[2] The facts of the case are fully set out in the judgment of Spencer, J. The question on which the learned Judges differed relates to the right of the Government to levy seigniorage fee on the stones quarried from the lands of the plaintiffs. The village in which the lands are situated was granted by the Nawab of the Carnatic in 1750. It was enfranchised in July 1865. It is conceded that since the enfranchisement Government acquired lands of similar quality and description to those from which stones are quarried from the plaintiffs, under the Land Acquisition Act and paid them compensation (Ex. B.). This document also shows that the Government purchased stones quarried in the village from the plaintiffs. But after some preliminary correspondence, the Government claimed seigniorage fee at a particular rate and levied the same in or about November 1907. The question for decision is whether the Government is entitled to this royalty.

[3] The learned Government Pleader s main contention was that the position of an Inamdar after enfranchisement approximates to that of a ryotwari tenant and not to that of the Zamindar and that consequently the holding is subject to the levy of royalties on minerals in the lands. He referred to the well recognised principle that ordinarily a grant to an Inamdar except in cases of waste lands shall be presumed to be that of the melwaram only and not of the land itself (see Narasimhalu v. Narasimhalu , Rajya v. Balakrishna Gangadhar (1905) I.L.R. 29 B. 415; Lakshminarasimha Bow v. Sitaramaswami and Suryanarayana v. Potanna (1913) I.L.R. 38 M. 608). But I do not think this presumption helps us to solve the question. All that these decisions lay down is that as between the tenant and the landholder, the presumption is that only the right of the Government to the revenue on the land was granted originally. There is no suggestion that in making the grant any reservation was made in favour of the grantor. Whether the land belongs to the grantee or only the right to melwaram from the tenants in occupation, qua the rights of the grantor, everything was parted with. He denuded himsef of all his rights, whatever the respective rights of the ryot and the land-holder may be in the soil.

[4] Mr. Ramesam next referred to the rule of law that, " A grant from the Crown is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words," and quoted Varman Janardhan Joshi v. The Collector of Thana and the Conservator of Forests (1869) 6 Born. H.C.R. 191, The Collector of Ratnagiri v. Antaji Lakshman (1888) I.L.R. 12 B. 534 and The Secretary of State for India v. Janakiramayya (1915) 29 M.L.J. 389 in support of this principle. On the other hand Mr. Venkatarama Sastriar referred us to Lord Commissioners v. The Commissioner for the City of Sydney (1859) 12 M.P.C. 179 In re Antaje Keshav Tambe (1893) I.L.R. 18 B. 670 and Balbir Singh v. The Secretary of State for India in Council (1899) I.L.R. 22 A. 96 for the position that in interpreting grants, the Crown and the subject are bound by the same rules of construction. The two propositions appear incompatible only on the surface. A closer examination shows that the two classes of cases do not clash with each other. The ordinary rule is that in construing the words of a grant, the same principles of common sense and justice must apply whoever may be the grantor. Where the words are not sufficiently clear to gather the intention of the grant, then the doctrine " that if the King s grant can enure to two intents, it shall be taken to the intent that makes most for the King s benefit " may perhaps apply. Therefore the primary duty of the Court is to try to give a meaning to the document evidencing the grant and to see whether by itself, it is not self-contained and plain.

[5] Now, looking at Exhibit I in this light, I fail to see any necessity for invoking the aid of

presumptions. The document says, " A perpetual shrotriein was granted " and that the grantee was " to appropriate his own use, the produce of the seasons " etc. To my mind, the grant is unambiguous and clear and conveys all that the grantor had in the soil. If the grant was in itself defective, I do not think that the enfranchisement would enlarge its scope. I agree with the learned Government Pleader that the title-deed of the Inam Commissioner confers no higher title than what was originally granted. Act IV of 1862, Madras, was designed to convey to the Inamdars the reversionary rights of the Government in consideration of an annual quitrent. But as this Act was construed to mean that the enfranchisement was in the nature of a fresh grant of property by the Government, Act VIII of 1869, Madras was passed which declared that " Nothing con-tained in a title-deed... shall affect the interests of any person other than the Inamholder," or " confer any right to land which he would not otherwise possess." It is enough in this connection to refer to the historic judgment of Bashyam Iyangar, J., in Gunnaiyan v. Kamakshi Aiyar (1902) I.L.R. 26 M, 389 wherein it is stated that the proceedings in enfranchisement cannot operate to confer on the Inamdar any additional rights. See also The Secretary of State for India v. Janahiramayya (1912) I.L.R. 37 M. 32

2. At the same time, it must be remembered that any declaration or finding by the Inam Commissioner regarding the nature and extent of the grant will bind the Government. (Sethumadhava Chariar V. The Secretary of State for India in Council (1914) I.L. W. 941).

[6] Comparing the positions occupied by the three classes of people who hold lands in this Presidency, it seems to me that the Inamdar is in the same position as the zamindar who obtained his sannad by the permanent settlement. It is true that under Regulation 25 of 1802, the Government reserved to itself only certain specified privileges in the lands granted to the zamindar and that royalty on minerals is not among the reserved rights (Section 4 of the Regulation). There is no such clause in the case of Inam grants. But the Government in enfranchising the Inam reserved to itself only a right to a small quitrent until purchase by the grantee. The fact that the land becomes freed from all liability to assessment after paying 20 or 30 years quitrent shows that the freehold in the property has been completely parted with. The quitrent is not subject to periodical revision. The position of the ryotwari holder is very different.

[7] It has been held that the right of the Inamdar with respect to the porambokes is the same as that of the zamindar, Gunnaiyan v. Kamahshi Aiyar (1902) I.L.R. 26 M. 350. See also Maclean s Manual of Administration, page 124. In the Estates Land Act, he occupies the same position as the Zamindar. I therefore do not see any force in the argument of the Government Pleader that the Inamdar has no more rights than an ordinary ryotwari tenant. The decision in Hari Narayan Singh v. Sriram Chakravarthi (1909) L.R. 37 I.A. 136 to which our attention was drawn related to a case of a permanent lessee from a zamindar and their Lordships of the Judicial Committee held that such a transferee did not acquire a right to quarry minerals. The suggestion that an Inamdar is only a permanent lessee from the Government is opposed to Act IV of 1862, Madras and to the language of the grant in this case.

[8] Mr. Venkatarama Sastriar pressed another argument before us. The conduct of the Government in paying compensation under the Land Acquisition Act and in. purchasing stones from the plaintiffs precludes them from claiming any royalty. I do not think that the learned Vakil can contend that there is any estoppel; but the conduct is evidence of a declaration on the part of the Government that they have not the rights now claimed. It is also noteworthy that the Board of Revenue in the earlier years held that the Government have no right to any royalty from the Inamdars. See Order XV in 1890 edition of the Standing Orders. In the revised edition issued in 1913, in Order XXV, the Board of Revenue indicates that the Government have this right. In my opinion the purchase, the grant of compensation, the earlier declaration are all evidence against the present claim of the Government: vide Nawab Aiajuddin Ali Khan v. Secretary of State (1904) I.L.R. 28 M. 96, Brett v. Ellaiya (1869) 13 M.A. 104 at 110 and Rajagopalacharyalu v. Secretary of State (1913) I.L.R. 38 M. 1025.

[9] For all these reasons, my conclusion is that the decision of Sadasiva Aiyar, J. is right and that the appeal should be dismissed with costs. The costs must be paid within 3 months.

Phillips, J.

[10] I agree.