Saji Koduvath, Advocate, Kottayam.

Part I: Ancient History of the Land of Kerala
Part II: Classification of lands in Travancore
- Land-Classification in Cochin
- Malabar –‘Jenmi’, ‘Jenmom’ and ‘Ryotwari System’
Part III: Land Reform Measures that Shaped Kerala
Part IV: Art. 31A of the Constitution of India and ‘Jenmam’ & Pndarapattom Land Whether ‘Estate’

History – in Nutshell

Mythology of Parasurama: According to the prevailing mythology, Parasurama, the founder of Kerala, gave lands to Brahmins. The lands belonging to Brahmins constituted Jenmom (Janmom/Genmom) lands.
Jenmies: In the course time, the Brahmins and prominent Nairs came-out as the territorial lords. They were called Jenmies. The rest of the people cultivated the lands under these Jenmies.
Devaswom lands: The Jenmies endowed lands to temples, and thus emerged the Devaswom lands.
Devaswom and Brahmaswom lands: By 8^th century, the entire cultivable lands came under (i) the Devaswoms or temples (Devaswom lands), and (ii) the Brahmin Janmies (Brahmaswom lands).
Sirkar a Jenmi: Sirkar itself became one of the Jenmis, it having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways.
Period of Marthandavarma: In Travancore, during the period of Marthandavarma, the entire assets were regarded as the property that belonged to the Treasury or Offertory (Bhandaram).
Travancore Proclamation of 1040 (1865):In Travancore, by virtue of Proclamation of 1040 (1865), all Sirkar (or Pandaravaga) pattom-lands were converted into full proprietary-lands.
Cochin Settlement Proclamation of 1080 (1905) : In Cochin, Settlement Proclamation of 1080 ME (1905 AD) conferred the holders of Pandaravaka Verumpattom lands ‘full rights to the soil of the lands’.
Settlement of Travancore: The survey and settlement of Travancore were finalised in 1910.
Ryotwari-tenures: In Malabar (formed part of the erstwhile Madras province), two types of tenures were important: landlord-tenures and the ryotwari-tenures (tenancy on Govt. land).
British Government, Permanent settlement: The permanent settlement (to fix revenue to be raised from land) was introduced by the British Government in the Malabar area in 1802.
Ryotwari pattadar a Tenant: Under the ryotwari system, land was given on lease by the government to the ryot under a patta. A ryotwari pattadar was only a tenant.
Sakthan Thampuran, Cochin: Cochinwas brought under the centralised administration by the King, Rama Varma, popularly known as Sakthan Thampuran (1790 – 1805).
Pandaravaka lands: During the second half of 18th century major portion of the lands, in both Travancore and Cochin kingdoms, were brought under the respective Government administration and these lands were called Sircar or Pandaravaka lands.
KLR Act – socio-economic legislation: Except Kerala, no other state in India has implemented the socio-economic legislation like Kerala Land Reforms Act to safeguard the interest of the agricultural classes.
The Kerala Land Reforms Act, 1963 made Kerala change tremendously.

Classification of Lands in Travancore

The lands were classified under 8 heads in the Travancore Land Revenue Manual (1915).

They were –
- (i) Edavagas;
- (ii) Registered lands;
- (iii) Purambokes;
- (iv) Tharisu or assessed waste;
- (v) Thanathuchitta lands;
- (vi) Reserved Forests;
- (vii) Reserved lands or proposed reserves; &
- (viii) Unreserved lands.

Travancore Land-Tenures

According to the Travancore Land Revenue Manual, (1915), the tenures fall under two main heads:
- (1) Sirkar or Pandaravaga (By virtue of Proclamation of 1040 (1865), all Sircar-pattom-lands were converted into full proprietary-lands);
- (2) Janmam.
In settlement (1910), numerous tenancy-tenures had been recognized.

For practical purposes, as per the Travancore Land Revenue Manual, the tenures were classified as under:
- 1. Sirkar or Pandaravaga
- 2. Sirkar Devaswom vaga
- 3. Kandukrishi
- 4. Sreepadam vaga
- 4. Sree pandaravaga
- 6. Janmam (Includes Devaswom, Brahmaswom, Inam etc.)

Land-Classification in Cochin

Pandaravaka lands – The lands owned by the State, or State having the jenmom or proprietary right. (Settlement Proclamation of Cochin of 1080 ME (1905 AD) conferred the holders of Pandaravaka Verumpattom lands ‘full rights to the soil of the lands‘.)
Puravaka land (“outside land”)- The land over which the proprietary right (jenmam right) was vested with private individuals or public institutions (or land in which jenmam right did not vest in the Sarkar, but, “outside”).
- Tenancy in the aforesaid lands: Verumpattom – This was simple leasehold. It was the chief land system of tenancy. By a series of legislative enactments, tenants gained occupancy rights in the lands held by them.

Ryotwari System in Malabar – Lease by Government, under Pattas

Under the ryotwari system, land was given on lease by the government to the ryot under a patta. A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant. In S. Thenappa Chettiarv. State of Tamil Nadu, AIR 1986 SC 1117, it was held, following Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, that the expression ‘estate’ in Article 31A included ‘ryotwari’ land also by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.

‘Jenmam’ (freehold right) is ‘Estate’ within Article 31A

In K. K. Kochunni v. States of Madras and Kerala, AIR 1960 SC 1080 and Govindaru Nambooripad v. State of Kerala, 1962 Ker LT 913 : AIR 1963 Ker 86 it was held that jenmom right was the freehold right with ‘proprietary interest’.
Note: ‘Freehold’ – “In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.

Pandaravaka Verumpattom in Cochin & ‘Pandarapattom‘ in Travancore – ‘Estate’ under Article 31A

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Constitution Bench of Supreme Court held that in the erstwhile Cochin State, Pandaravaka Verumpattom were proprietors of the lands and hold the lands subject to the liability to pay the assessment to the State, and therefore Pandaravaka verumpattom could be regarded as local equivalent of an ‘estate’* under clause (2) of Article 31A of the Constitution.
- * ^{(Note: Estate} ^{denotes, generally, property ownership)}
Five-Judge-Bench in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1: AIR 1971 Ker 168, held that Pandarapattom land in the Travancore area of the Kerala State satisfies even the orthodox definition of ownership by Austin, and was ‘estate’ within the meaning of Article 31A(2)(a) of the Constitution.

Part I

Ancient History of Land of Kerala

Ancient Kerala had a peculiar culture of its own. It experienced an isolated life, protected by the Western Ghats on east and Arabian Sea on west. This land of mountains and forest was divided by a good number of rivers. The term Kerala was first epigraphically recorded as Ketalaputo in a 3^rd century BCE rock inscription by emperor Ashoka (Encyclopaedia Britannica & Wikipedia).

The topographical situations made small and scattered villages with their own leaders or ‘Naduvazhis’ (Local Chiefs). The people here collected Hill Produces and tried agriculture. The calm gulf of Arabian Sea with favorable wind brought several merchants from Persian countries which were highly rich at that time.

The Arian Invasion

The Arian invasion from North India, through the eastern passages in Western Ghats, started in the 3^rd century. It made considerable change in the life and style of the people of medieval Kerala. By 8^th century the Aryans made a complete change in the social scenario. Brahmins, the priestly class, predominated the emigrants. They slowly caught hold of superiority in all fields of life. They were superior in intelligence, and people with ‘knowledge and experience’ in all walks of life. Brahmins made temples and attracted people there.

Rise of Brahmin Janmies

Aryans subjugated the minds of the native people including the rulers and made them consider that Brahmins were the servants of the God and deity. They introduced paddy cultivation and led people do agriculture in a large scale. The fascinating techniques taught by the Aryans miraculously increased the agricultural productivity. They succeeded in getting lands endowed by the Rulers to the temples and Brahmins in the entire erstwhile Travancore, Cochin and Malabar areas. They also made people offer the agricultural produces, and part of their income, to the temple. Temples were centers of collection of wealth. It also became the centers of distribution of food, and other articles. They were centers of learning and art also.

Devaswom Lands and Brahmaswom Lands

The Kings and other ‘Naduvazhis’ relied on Brahmins to carry on their administration in a successful manner. Brahmins or their families became the administrators or ‘Ooralers’ of the temples. Almost the entire cultivable lands were under the Devaswoms or temples (Devaswom lands) , and the Brahmin Janmies (Brahmaswom lands). A myth was rooted, by passage of time, in the minds of people, that this land was one reclaimed by Parasurama from Arabian Sea and that he entrusted this land to Brahmins. It was also believed that Parasurama was a great warrior and that he conquered this land and appointed Brahmins as the territorial lords. Slowly, the Aryans, who monopolised the whole of the land, began to rule the territory, directly or indirectly.

Jenmom lands and Exalted position of Brahmins

The Brahmins and prominent Nairs were the territorial lords. The owners of these lands were called Jenmies; and the lands belonged to them were known as Jenmom lands. The Sirkar (King) was the greatest Jenmi. Apart from original Jenmom lands, the rulers and the King obtained land by gift, purchase, escheat, confiscation etc.

The exalted position of Brahmins in the society increased day by day, during the medieval period. A major portion of the cultivable land remained under the ‘Janmam’ of Brahmins.

Malabar and Chera Kingdom

Malabar was used to denote entire costal land from Goa to Kanyakumari, in ancient times, until the British limited it to the portion of land confined to northern part of present Kerala. During ‘Middle Ages’, till 12^st century, entire Malabar remained under Chera Kingdom (from 9^th Century). After breaking up of this Kingdom, the chieftains of the respective region proclaimed their political independence. They included the Zamorins of Calicut and Kolathiri; rulers of Perumbadappu Swaroopam (Later, Kingdom of Cochin), Naduvazhis of Venad, Valluvanad etc.

The land-scenario heftily changed on the advent of Dutch (1663–1773) and English (1773- 1947). The permanent settlement (fix revenue to be raised from land) was introduced by the British Government in the Malabar area in 1802. It obligated the jenmis to pay revenue to the State. But did not in any way affect their proprietary rights in the lands. (Balmadies Plantations Ltd. v. The State of Tamil Nadu, AIR 1972 SC 2240; Thressiamma Jacob v. Geologist, Dptt. of Mining, 2013 (9) SCC 725).

Travancore – Padmanabha Swamy Temple and ‘Bhandara Vaka’ Lands

The powerful King, Marthandavarma who ruled Travancore from 1729 to 1758, was successful in bringing all people and properties of Travancore (Southern Kingdom at present Kerala) under his administration; and collected tax from all lands except those that were expressly exempted.

The King of Travancore placed himself as the servant of the deity. The entire assets of Travancore were regarded as the property that belonged to the Treasury or Offertory (Bhandaram in Malayalam; Pandaram in Tamil) of the Principal deity – Sree Padmanabha Swamy Temple at Thiruvanamthapuram.

Report on The Census of Travancore, 1911

‘Report on The Census of Travancore, 1911’, Introduction reads as under:

“On the 17th of January, 1750, accompanied by the members of the Royal family, his minister and the principal officers, he proceeded in state to the shrine of Sri Padmanabha Svami at the Capital and publicly dedicated Travancore to the Deity by what is called the Thiruppadidanom ceremony (gift at the sacred foot-steps), undertaking to administer what then became Padmanabba’s State, as His agent and trustee, with the official title of “Sri Padmanabha Dasa” (Servant of Sri Padmanabha). This dedication, prompted by the then necessity, meant that all revenue was to be collected in the name of Sri Padmanabha Svami (Pandaravakai Muthal) and expended for the protection and development of the country’s national life.”

Census of India, 1951 (Travancore-Cochin)

In the official publication, ‘Census of India, 1951 (Travancore-Cochin), District Census Handbook, Trivandrum’, it is laid down as under:

After making the kingdom of Travancore the property of Sree Pandara Vagay, and converting all denominations of the State servants into Sree Pandarakariyum Chaywargal (men who perform the duty of the holy financial administration), the name of the talooks (districts) was changed and styled Mandapathomvathukal (the gate or presence of the pagoda,) and all business was now carried on under the new titles. The MahaRajah having next ordered Rama Iyen Dalawah to frame regular accounts and rules for fixing permanent taxes on lands and gardens, that official commenced a survey of them in 926 M.E. (1751 A.D.) , and conducted and completed this laborious work throughout Travancore in 929 M.E. (1754 A.D. ) The first Auyacattu account (assessment) in Travancore was clearly framed out after this survey, and the holders of lands and gardens were furnished with a Pathivu ( registry ).

Sri Marthanda Varma v. State of Kerala, 2021-1 SCC 225

In the appeal judgment, Sri Marthanda Varma v. State of Kerala, 2020-4 KLT 490: 2021-1 SCC 225, the Supreme Court extracted the history of the Padmanabha Swamy Temple set out by the Kerala High Court (in T. P. Sundara Rajan v. State of Kerala, ILR 2011-1 Ker 604; 2011-1 KHC 386; 2011-1 KLT 634). The High Court Judgment included the following:

“4. Before proceeding to consider the legal issues raised and the jurisdiction of the lower courts and that of this Court which are also issues raised before us based on Article 363 of the Constitution, we have to briefly state the history of the Sree Padmanabha Swamy Temple. Even though the origin of the Temple is shrouded in antiquity and different versions are stated by different Authors, the modern history of this Great Temple starts with Anizham Thirunal Marthandavarma who established the modern Travancore State which was previously known as Venad. For over 200 years prior to the re-establishment of the Princely State and taking over of management of the Temple and the State by Marthandavarma, the Temple was under the control of “Ettarayogam” (group of eight and a half) consisting of seven pottis (Brahmins), one Nair chieftain and the King who had only half a vote, whereas all others had one vote each. While the committee of Potties controlled the Temple, the properties of the Temple were managed by Ettuveettil Pillamars, the 8 Nair chieftains belonging to eight big families spread over in different villages of the State. The King was a low key functionary in the Committee managing the Temple and he had only a very limited authority with half a vote……
The Ettuveettil Pillamars with the help of Brahmins in management of the Temple plotted against Marthandavarma becoming the King and they tried to instal the previous King’s son as the new King in deviation of the practice of the nephew of the King namely, Marthandavarma becoming the King. However, in the protracted battle that followed between the heir to the throne namely, Marthandavarma and his loyalists on the one side and the Ettuveettil Pillamars, the Brahmins, and the King’s son’s loyalists on the other side, Marthandavarma succeeded……
Marthandavarma took over full control of the State and the Padmanabha Swamy Temple and it is he who reconstructed the Temple which was in bad shape after a major fire that took place years back and installed a new idol.
In fact the King surrendered his Kingdom to the presiding Deity namely, Padmanabha Swamy and declared himself the Dasa or servant of the Lord and assumed the name “Padmanabhadasa“. Marthandavarma ruled Travancore from 1729 to 1758 and after him also the Temple continued to be under the direct management and control of the King.

The Supreme Court continued as under:

“5. The act of surrender or dedication of the entire kingdom to Sree Padmanabhaswamy as referred to by the High Court has been described in a book (Published by Bharatiya Vidya Bhavan) [Dr. A. G. Menon – ‘History of Sri Padmanabhasvami Temple Till 1758] titled “Sree Padmanabha Swamy Temple” authored by Princess Aswathi Thirunal Gouri Lakshmi Bayi as under:-
“Thrippati Danam – 5th of Makaram 925-ME/1750 AD Fifth Makaram 925 ME/19th or 20th January 1750 AD (Wednesday asterism Revait) stood witness to the act of a sublime dedication, the ultimate offering possible for a crowned head, carried out in supreme devotion – the Thrippati Danam. [Many historical works (too many to be listed).] Like Arjuna before the Kurukshetra War and Emperor Ashoka after the Kalinga War, the futility of battles as a means to an end and the conscious feeling that the Travancore he created was built on a foundation of sacrifice of the liver and limbs of countless numbers who fell due to him and for him, deeply disturbed and distressed the Maharaja [Sree Uthradom Thirunal Marthanda Varma]. Along with the love which offered Marthanda Varma no satiation however much he might submit to his Lord, this trauma also activated him to surrender to God the Thiruvithamcoor (Travancore) stretching from Kanyakumari to Paravoor which he had won and made.
Before this dedication certain religious ceremonies like Poorna Kalasa Homam, invoking the Deity, and so on were performed, followed later by Mahabhishekam.
Maharaja Anizhom Thirunal Marthanda Varma arrived at the appointed time in the morning accompanied by all male and female members of his family, his trusted Dewan Ramayyan and other officials. In the presence of the Swamiyar, members of the yogam and Brahmins, the Maharaja is submitted to Sree Padmanabha Prajapati by Deed of Gift carrying his signature, his entire State of Travancore along with his total right on it thereof by placing the Crown, the royal umbrella, the twin white chauries (fans), the Manikandha; which were all symbols of royalty along with some Thulasi leaves on the Mandapam. Last but most significant, his famous sword, which had lashed its unleashed valour in countless battle fields, the unquestioned insignia of sovereign authority which the King valued the most, was also placed with utmost reverence by the Maharaja on the step of the Ottakkal Mandapam leading to the sanctum. Then the King received the sword back from the high priest and returned to the Palace after worship. His directive that any further conquest of territory brought under the rule of Travancore by his successors should also be surrendered to Sree Padmanabha Swamy was accepted and scrupulously adhered to with deep respect by the later generations.”
The English Translation of the Original Deed of Dedication which was drawn up in Malayalam is as under:-
“We, Thrippappoor Keezhperur Veera Bala Marthanda Varma, Mootha Thiruvati (Senior member) of Thrippappoor and Sree Pandarakaryam Cheyvarkal, have this day, Wednesday the 5th day of the month of Thai, the seventh day of the bright lunar fortnight with Saturn residing in the eighth sign and Jupiter in the twelfth, Kollam 925, transfer by absolute gift and dedication, to endure as long as the Sun and Moon shall last, all the lands and functions appertaining thereto together with all rights and dignities, positions of honour and all other possessions that we have been hitherto enjoying as of right within the territories between the Thovala Fort in the East and the Kavana River in the West, in favour of Perumal Sree Padmanabha Perumal. In token whereof we have this day executed this deed of absolute gift and dedication.”

VP Menon, who was the Constitutional Advisor to the Governor General

VP Menon, who was the Constitutional Advisor to the Governor General till 1947 and Secretary to the Ministry of States who ‘played a stellar role’ in the integration of the princely States into the Dominion of India, penned-down, ‘in part fulfilment of a promise made to the late Sardar Vallabhbhai Patel’, the “Story of Integration of the Indian States”. While dealing with Travancore-Cochin, VP Menon wrote as under:

“These two States, together with Malabar, have evolved a distinctive custom and culture of their own. The area is divided from the rest of India by the Western Ghats; and if a visitor were to cross the Ghats and enter Malabar, he could not fail to be struck by the change in scenery as well as in the life and customs of the people.
The ruling family of Travancore traces its descent from the ancient Chera kings of South India. In later historic times, Travancore was split up into a number of petty principalities. The consolidation of these into a single State was the achievement of Rajah Marthanda Varma, who ruled in the first half of the eighteenth century. He brought the whole of Travancore under his sway, established order and settled the country. In January 1750, he formally and solemnly dedicated the State to Sri Padmanabha, the tutelary deity of his family; and he and his successors have ever since ruled as ‘Dasas’, or servants of that deity.” (Quoted in: Sri Marthanda Varma v. State of Kerala, 2020-4 KLT 490: 2021-1 SCC 225)

Jenmies and Sircar were Owners of Property in Travancore

In early times, Janmon lands, so long as they continued in possession of the Jenmi, were free from all taxations. King or Sirkar itself was one of the Jenmis. Sri T. Madhava Row’s Memorandum with regard to the origin and nature of Jenmom rights (Travancore Land Revenue Manual, Vol. IV) reads as follows:

“Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, escheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its Jenmom property is extensive. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i.e., from the Sirkar, which is the chief Jenmi, or from some other Jenmi”. (Quoted in: Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1; Kannan Devan Hills Produce Company Ltd v. The State of Kerala, AIR 1972 SC 2301).

Revenue Settlements of Travancore

‘Kettezhuthu’ and Kandezhuthu’

First attempt to make a settlement in Travancore was in 1712. It was on ‘Kettezhuthu’ (what is heard) basis; i.e., on discussions with landholders. Pattas were issued after the settlement. In 1775 a complete survey was conducted on ‘Kandezhuthu’ (what is seen) basis. Pattas were issued to the holders on this basis also. Complete resurvey of garden lands was conducted in 1836. This time measurements were made with the scale if a 10-Feet-Rod. Pattas were issued this time also.

The last settlement of Travancore was during 1882 to 1909. The survey thereon was commenced in 1885 and finalised in 1910.

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court, referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, observed as under:

“Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K.Narendran, J.)

In Sahana Industries v. State of Kerala, Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.

Ryotwari System in Malabar – Lease by Government, under Pattas

Sir Thomas Munro, Madras Governor, introduced ryotwari system throughout the Madras Presidency in 1820.

(See notes below: Malabar –‘Jenmi’, ‘Jenmom’ and ‘Ryotwari System’)

Cochin – Land Situation and Survey Settlement
Cochin was brought under the centralised administration by the King, Rama Varma, popularly known as Sakthan Thampuran (1790 – 1805). The feudal custom prevailed in Cochin had been divided the land under Naduvazhis or local chiefs – Paliyam swaroopam, Cheranellore Karthavu the head of the Anchi Kaimals, Muriyanatt (Mukundapuram-Nadavarambu) Nambiar the head of Arunattil Prabhus, Kodassery Kartha, Mappranam Prabhu, Vellore Nair, Chengazhi Nambiar (Chengazhinad Naduvazhi), Edappali Nampiyathiri etc.

During the second half of 18th century, as in the case of Travancore, major portion of the lands in Cochin were brought under the Government administration and these lands were called Sircar or Pandaravaka lands.

Settlement Proclamation of Cochin of 1080 ME (1905 AD) made a mountainous change in the land situation. Clause 13 of the Settlement Proclamation provided that the holders of Pandaravaka Verumpattom lands would acquire ‘full rights to the soil of the lands‘ they held and that their rights would remain undisturbed so long as they regularly pay the State revenue. Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694; Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.

Following the settlement Proclamation of 1905, a survey-settlement was done in Cochin during 1905-1909.

(See Notes below under the head: ‘Land Classification in Cochin)

Part II

Concept of “Janmam” on Lands, and Classification of Lands, in Travancore

‘Jenmom Lands’ and ‘Janmies’ in Travancore

The concept of ‘Janmam’ (‘inherent right’) is associated with the myth that Parasurama, reclaimed the lands in Kerala from the sea with the help of a hatchet, and gave lands to Brahmins. The lands belonging to Brahmins constituted ‘jenmom’ .

They did not derive their title to lands from any King or Sircar; and it was considered as an ‘inherent right’. It can be equated to ‘allodial properties in Europe’, contra- distinguished from feudal. (See: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)

Till the second half of 18^thcentury, the entire lands were considered to be belonged to some janmi or other.

Official Publication, ‘Census of India, 1951

In the official publication, ‘Census of India, 1951 (Travancore-Cochin), District Census Handbook, Trivandrum’, it is laid down as under:

“6. LAND TENURES
Till a century ago, the State presented an interesting (though from the point of view of economicdevelopment, far too complex) system of land tenures derived from Land Tenures the peculiar conditions of its historical development. They have been considerably simplified by several pieces of land-tenure legislation.
The chief categories of tenure· in this district may be broadly classified:-
.I. (a) Pandaravaka. These (comprising three-fourths of the total area of the State and including the vast majority of holdings) are lands belonging to the Sirkar or government. All tenants are now practically owners of their land, subject to payment of tax.
(b) Kandukrishi lands. They are the home-farm lands of the Maharaja of Travancore.
(c) Sripandaravaka lands (extent, 28,000 acres). These are lands belonging to the temple of Sri Padmanabhaswami in Trivandrum and lie scattered in the various taluks of this district.
(d) Sripadam lands-(area about 15,000 acres). These, lying in the pakuthies of Edakkodu and Attingal in the Chirayinkil taluk, are the private property of the Maharaja of Travancore. In all government lands, the system of land-tenures is based on· the ryot-wari principle, i. e . direct settlement with individual ryots.
II. Jenmom lands. They are the absolute private property of the owners. Under the Jenmikudiyan Acts, ryots holding jenmom lands have been given fixity of tenure, the dues to the jenmi being collected and paid to them by government the collection being made along with the land-tax.
The chief systems of tenancy under which tenants hold lands owned by others are:
I. Verumpattom (venpattom). They are tenants who hold lands on lease for periods and on -conditions, stated in the contract; they are liable to be evicted under the conditions of the contract.
II-Varamdars (Pankuvaramdars). They are people who’ raise crops ron agricultural lands in partnership with the owners of the land; the conditions of partnership vary in different localities.
III-Kudikidappukar. They are persons who were previously allow.ed by the owners of the land to occupy a small portion of it, generally to put up a small house to live in and watch the land or work on it.
IV -Otti (Mortgages). Tenancy under this head take different forms in different regions. The question of giving fixity of tenure to cultivating tenants is under consideration. It may be stated that the ratio of cultivating tenants to non-cultivating owners of land in this district is 4: 1.

Sircar was the largest Janmi

During the second half of 18^thcentury the lands in Travancore and Cochin were brought under the Government administration and these lands were called Sircar or Pandaravaka lands. In certain places local chiefs (Nadu-vazhis) were ’emerged’.

On emergence of the Sircar and Ndu-vazhies, the they were considered as the janmi of those lands belonged to them (got under gift, purchase, escheat, confiscation and other ways – See: Travancore Land Revenue Manual – IV). Regarding Pandaravaka lands it is stated in the Travancore Land Revenue Manual as under:

“Pandaravaka or Sircar lands are lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are (that) derived from the Sircar.”

In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, it is found as under:

“13. It must be clear from what has been stated that all the lands in the Travancore belonged to a body of janmis. There are no lands that do not belong to some janmi or other.
14. Be it remembered that the Sircar itself is one of these janmis, it having come to possess janmam lands by gift, purchase, escheat, confiscation and other ways. It is only a great janmi, great in the sense that its janmam property is extensive.”

In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, it is further observed as under:

15. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.” (Sir T. Madava Row’s Memo.) In Mr. Kunhiraman Nair’s Memo on Land -Tenures it is stated:
“At present the Sircar is the largest Janmi in the State. The janmam lands of all the petty Rajas subdued in the last few centuries and of several Madampies, have lapsed to the State, and other causes such as escheat & c, have tended, to increase the extent of the Janmam possession of the Sircar. About three- fourths of the whole land in the State belong on Janmam to the Sircar, the remaining one-fourth being distributed among the classes mentioned in para 32 It is interesting to note that in certain parts of Madras Janmam rights existed ‘and the ‘Government lands were called government janman lands.
(See Government Order No. 1902 Revenue dated November 1, 1926) Para 3 of that order deals with the janmam estates and reads as under:
“3. JANMABHOGAM.-Paragraph 11 of ‘the Board’s Proceedings-“Lands have neither to been described as-
- Government Janmam, i.e. lands which are held directly from the Government and on which taram assessment and janmabhogam are paid to the Government and
- private janmam, i.e. lands which are held directly from the Government and on which taram assessment but not janmabhogam is paid to the Government.”

“Sree Pandarakaryam Cheyvarkal” Property

Large extent of properties are seen recorded as Sree Pandarakaryam Cheyvarkal (Cheivarkal) properties in the settlement register of 1910 (Travancore). It is pertinent to note that ‘Sree Pandara karyam Cheivarkal’ was the character/name assumed by the King at the time of ‘truppadi danam’. (See notes below under the heading – Travancore, Padmanabha Swamy Temple and ‘Bhandara Vaka’ Lands)

In P. R. Harikumar v. State of Kerala, 30 June, 2011, the High Court of Kerala pointed out the stand of the State of Kerala as regards the ‘Sree Pandarakaryam Cheyvarkal’ as under:

“23. It is the further contention of the Government that “As per the Settlement Register of 1908 maintained by the State of Travancore, the lands aforesaid are “Sree Pandarakaryam Cheyvarkal” measuring about 2203.4 Acres and forest measuring about 1195.98 Acres which are the lands exclusively held by the Government”.

Concept and Emergence of Devaswom lands

Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86, further observed as under:

“18. Coming to the second category of lands, viz., Jenmom lands, the Jenmies have full proprietary rights in the soil. The origin of the title of the jenmies is shrouded in obscurity but the development of this branch of land tenure was on the assumption that Parasurama who conquered the land of Kerala or, as mythology would put it, reclaimed it from the sea, gave it as gift to Malayala Brahmins or Nambudiries. The rest of the people cultivated the lands under the Jenmies. In course of time, the Jenmies endowed certain temples built by them with lands and thus the Devaswom lands came into existence. These were similar in nature and incidents to Jenmom lands. These lands were enjoyed free of tax, the State imposing a light assessment only when the Jenmies alienated the land to others.

The concept of Classification of Lands

The concept of classification of lands emerged in 2^ndhalf of the 19^th century in Travancore and Cochin. The lands were classified under 8 heads in the Travancore Land Revenue Manual, Volume III (1915). They were –

(i) Edavagas;
(ii) Registered lands;
(iii) Purambokes;
(iv) Tharisu or assessed waste;
(v) Thanathuchitta lands;
(vi) Reserved Forests;
(vii) Reserved lands or proposed reserves; &
(viii) Unreserved lands.

Registered lands

Registered lands were that included in Sirkar Revenue accounts as lands held by or granted to individuals, families, institutions, etc.

The revenue from these lands fell under the head, ‘Ayacut’ or ‘Settled Revenue’.
Each of this field had been surveyed and settled.
The functions of the Land Revenue Department were to collect the revenue and see that no encroachment was made on adjoining Sirkar lands (puramboke, tharisu, forests).

Our Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, held as under:

“In the Travancore Land Revenue Manual, Vol. III, Revised Edition, 1936, Registered Lands are described as follows
- “Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. These lands comprise not only the areas brought under cadastral survey but include also coffee, tea, rubber and other estates, cardamom gardens and other special grants outside the limits of cadastral survey.”
The Registered Lands include inter alia, (a) Pandaravaka lands and (b) Janmam lands. Regarding Pandaravaka lands it is stated :
- “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”

‘Jenmom’ was proprietary interest with Liability to Pay Tax (Freehold)

The concepts on ‘janmam’ continued even after introduction of Tax system by Government. ‘Jenmom’ was taken the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:

“Under the definition, any janmam right in Kerala is an “estate”. A janmam right is the freehold interest in a property situated in Kerala.
Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands” and such a janmam right is described as “estate” in the Constitution. Substituting “janmam right” in place of “estate” in cl. 2 (b), the “rights” in Art. 31 A (1) (a) will include the rights of a proprietor and subordinate tenure-holders in respect of a janmam right.
It follows that the extinguishment or modification of a right refers to the rights of a proprietor or a subordinate tenure-holder in the janmam right. A proprietor called the janmi or his subordinate tenure-holder has certain defined rights in janmam right”. Land-tenures in Malabar are established by precedents or immemorial usage. Janmam right is a freehold interest in property and the landlord is called “janmi”. He can create many subordinate interests or tenures therein.” (Quoted in: Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301)

Note: ‘Freehold’ – “In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.

In the Jenmi and Kudiyan Regulation, V of 1071 (1896), Jenmom land is defined as-

“land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in; which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.”

The Travancore Jenmi and Kudiyan Act, V of 1071 (1896), defines ‘Jenmi’ as under:

” ‘Jenmi’ means a person in whom the proprietary right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.”

In Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86, it was observed with respect to the ‘Janmi’ as under:

“What the definition stresses is the proprietary right in the land. We may in this connection extract a passage from the Memorandum of Mr. Kunhiraman Nair, one of the Judges of the High Court of Travancore, about 70 years ago:
“The term ‘Jenmom’ was originally used by the Brahmins exclusively to denote their allodial proprietorship and is still used in that sense in courts and cutcherries in Travancore, though in other parts of Malayalam and in popular parlance in Travancore, the term is now universally employed to denote the full proprietary right in the land of any class of people”.

Concept of ‘Freehold lands’

“In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.

Travancore State Manual Vol. III published by the Travancore Government in 1940, says as to the class of jenmom land which were entirely freehold and exempted from payment of any kind of tax to Government under any circumstances. These were the special properties given by the Ruler to certain individuals considering their valid services or to certain institutions including temples.

Concept of ‘Grants’

The lands granted/leased by Erstwhile (Travancore or Cochin) Sircar continued to be lands belonging to the Sircar, and the grantees did not acquire absolute proprietary rights. It is made clear in the following decisions.

Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301	The Concession from Punjar Valiya Raja and the deed of Ratification of the Travancore Govt. laid down that the grantee was permitted only to hold the land; and it had no absolute ownership.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272	Finding of Trial Court (on Grant deeds) company did not acquire absolute proprietary rights – upheld.
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86	A coffee planter who holds lands under a Grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19	Petitioner contended – ‘Grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578	Arguement that deed of ‘Grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deed was not accepted.

Important Enactments on ‘Grant’

1. The Government Grants Act, 1895

The Government Grants Act, 1895 (known as ‘Crown Grants Act, 1895’), had been enacted with a view to secure the Govt. lands from potential or protracted legal claims. It applies to erstwhile Malabar area of Kerala (part of former Madras State).

The Government Grants Act, 1895 reads as under:

1. Title and extent.-(1) This Act may be called the Government Grants Act, 1895.
(2) It extends to the whole of India except the territories which, immediately before the 1st November, 1956 , were comprised in Part B States.
2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Act, 1882 (4 of 1882 ), contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
3. Government grants to take effect according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.

2. Government Lands Grants Act, 1940 (Cochin)

The Government Lands Grants Act, 1940 (enacted with the same words to effect restrictions as that of the Government Grants Act, 1895) made constraints in the ‘grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever’. By virtue of this Act also, Transfer of Property Act and Tenancy Acts did not to apply to lands given as grant by the Government.

3. Kerala Grants and Leases (Modification of Rights) Act, 1980

Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view to modify the rights under grants and leases, for cultivation, made by the former States of Travancore and Cochin. The Act was made for the reason that such grants and leases brought about heavy loss to the Government and they resulted in huge un-earned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public.

Read blog: Grant in Law

Key Decisions on Grant

In the following cases the effect of “grant” by the Erstwhile Governments was considered.

1. Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala, AIR 1972 SC 2301

The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. The State of Kerala made an Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the possession of the land remained in the possession of the Kannan Devan Hills Produce Co. Ltd.

According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.

According to the State, this land is dealt with under this heading – Pandaravaka Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the company for ‘coffee cultivation’. It asserted –

that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
- “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land. (it is similar to the ‘Grant/Title’ deeds executed by the State in all other ‘Grants’ – under the ‘Grant Rules’).
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
- “The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.

Points came for consideration were the following:

Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)

The Apex Court found the following:

The janmam rights (even if remained with the Poonjar Chief, H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the freehold interest.
The Sircar itself is one of these janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.

The Apex Court observed as under:

“… On the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”.
If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”

The Apex Court further found –

The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
It thus appears that the State grants like Kanan Devan Hills Concession and Ten Square Miles Concession, and Munro Lands, were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar (that is, such Grant-lands were not ‘owned’ by the holders thereof).

On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.

2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272

With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:

“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”

It is observed:

“An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
- “ We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”

It is observed further:

“It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”

The Apex Court upheld and approved “the judgment and findings” of the Trial Court.

3. George A. Leslie v. State of Kerala – AIR 1970 Ker 21, (K. K. Mathew, J.)

Travancore Regulation II of 1040 (1865) and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 considered.

It is observed:

“Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865. It conferred a heritable and transferable interest in the grantees of the land comprised in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding this question. It provides:
- “Grantees can appropriate to their own use within the limits of the grant all timber except the following and such as may hereinafter be reserved, namely, Teak, Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any timber without the limits of the grant, it will be subject to the payment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.
10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

It was pointed out –

Travancore Pattom Proclamation of 1040 (1865), which conferred full rights on tenants of pandarapattom land. They have no application to the land or trees comprised in grants for cultivation of coffee or tea (under Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865).

4. Thomas Philip v. Forest Range Officer – 1923 ‘Grant’ of Travancore Government

Grant made by the Travancore Government, in 1923 was considered in Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578. The Chief Secretary to the Government of Travancore ‘granted’ land ‘for coffee or tea cultivation’. The fifth condition read as under:

“The full right to Royal trees within the grant is reserved and continues to vest in the Government. The Grantee shall be bound to take care of the Royal trees particularised in column 5 of the schedule hereunder written until they are removed or otherwise disposed of by the Government. The Grantee shall also be bound to deliver to the Government all ivory found and other Royalties produced in the land, and all captured elephants, and will be paid the regulated price for the articles of produce, and the regulated reward for the elephant, at the discretion of the Government.”

It was contended that the ‘ownership’ of the land was purchased by the petitioner’s father in 1941. He planted trees. The petitioner made an application in 2006 to the Forest Range Officer seeking NOC for felling rosewood trees and teak wood trees. It was denied in view of the fifth condition of title deed to the effect that the full right over all the trees in the properties were fully vested with the Government. The petitioner argued that the 1923 deed is not a grant, but a title deed. The Government Pleader argued that the property held by the petitioner is a grant which would come under the purview of the Kerala Grants and Leases (Modification of Rights) Act, 1980. In view of the said Act, 1980, the appropriation of teak, Blackwood, etc. were subject to payment of seigniorage at the rates specified. Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:

“4. Grantees and lessees to pay current seigniorage rates- (1) Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”

On the basis of Jose v. State of Kerala, 2020 (2) KLT 560 and Manoj A.N. v. State of Kerala 2013 (3) KLT 649, it was argued for the State that the trees came into existence subsequent to the assignment was also covered by the Act.

Relying on Gopi v. Tahsildar, 2002 (3) KLT 526, and Majeed v. State of Kerala, 2006 (1) KLT 19, it was contended that that the rights obtained in terms of 1923 grant was not absolute. (The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017).

The petitioner argued that the restriction was only in respect of the trees made mention in 1923 title deed and the trees sought to be cut and removed by the petitioner are those planted by the father of the petitioner. The Court held as under:

“But, the fifth condition quoted above would show that the grantee is bound to deliver to the Government other royalties produced in the land also and Government is expected to pay regulated price for the articles of produce. The term ‘other royalties produced’ would indeed include subsequently planted royal trees also…..
In view of sub-section (1) of Section 4 and the non-obstante clause therein, the petitioner is liable to pay seigniorage for the trees proposed to be cut and removed by him. The fifth condition in Ext.P1 (1923) will stand modified to the extent provided under Section 4(1) of the Act, 1980.”

The High Court concluded analysing the Ext. P1 (1923) Title Deed, Kerala Grants and Leases (Modification of Rights) Act, 1980, Kerala Preservation of Trees Act, 1986 and Kerala Promotion of Tree Growth on Non-Forest Areas Act, 2005 as under:

.(1) The fifth condition in Ext. P1 Title Deed will stand modified by the Kerala Grants and Leases (Modification of Rights) Act, 1980, as per which every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the timber cut and removed from any land held under the grant or lease.
(2) For cutting, uprooting or burning any tree falling within the definition of tree as contained in Section 2(e) of the Kerala Preservation of Trees Act, 1986, it is necessary to obtain previous permission of the Authorised Officer.
(3) Notwithstanding anything contained in any other law, except in respect of trees:
- .(i) reserved by the Government at the time of assignment of such land, or
- (ii) trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 every owner of non-forest land shall have the right to cut and transport any tree, other than sandalwood tree standing on his land.”

5. Padmanabharu Govindaru v. The State of Kerala– Coffee Planter under a Grant is not a Jenmi

Following passage from Sri T. Madhava Row’s Memorandum (Travancore Land Revenue Manual) regarding the origin and nature of Jenmom rights is quoted in the Judgment (Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86). Sri T. Madhava Row stated as under:

“A Jenmi is often termed a landlord. But, it must be clearly understood and also always remembered that a Jenmi though certainly a landlord, is a peculiar Kind or landlord. Any person, who holds a pattah from a Collector in a British District and under it holds from the British Government subject to Government tax more or less, is called a landlord in ordinary language.
Even in Travancore, any coffee planter or indeed any ryot, who holds lands under a grant from the Sirkar, etc. , is or may be called a landlord. But, be it remembered, such landlords are not Jenmies.
A Jenmi differs from such landlords in that he does not derive his title to lands from the Sirdar etc. His title to the Jenmom lands is inherent. He is, so far as his Jenmom lands are concerned, a little territorial sovereign in a limited sense. He is landlord of his Jenmom domain exactly in the sense in which this Sirkar is landlord of all the land it grants to planters and indeed to all ryots in general; in the sense in which the British government is landlord of all the Ryotwari lands of the East Coast Zillahs of the Madras Presidency.
It is necessary, in view to avoid errors and misconceptions, to familiarize the mind to this definition of t Jenmi. The origin of Jenmom property may be briefly explained here with a view to make the rights of jenmis clear. Kerala Desom (in which Travancore is included) was originally conquered by Parasurama, and this great warrior parcelled out the conquered lands among a limited number of brahmins. The Brahmins then became territorial lords, each independent of the rest. From that early age, the lands have descended with the tenure almost unimpared. The lands so belonging to each Brahmin are said to constitute his Jenmom, and the Brahmin himself is called a jenmi. These lands, so long as they continue in possession of the Jenmi, are free of all taxation. To this day this exemption continues in full force.
Jenmom lands are precisely what are in Europe called allodial properties as contradistinguished from feudal. It must be clear from what has been stated that all the lands in Travancore belong to a body of jenmis. There are no lands that do not belong to some Jenmi or other. Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its jenmom property is extensive. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i. e. , from the Sirhar, which is the chief Jenmi, or from some other Jenmi”. (pp. 2 and 3 of Travancore land Revenue Manual, Vol. IV)

Note: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 gives us “illuminative information as to the concept of ‘jenmom’” as pointed out in Harrisons Malayalam Limited v. State of Kerala, 2018 2 KerHC 719; 2018 2 KerLT 369 – though this decision was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez, AIR 1971 Ker 168 :1971 KerLT 1).

6. Majeed v. State of Kerala Grant and the Right of Ownership

In Majeed v. State of Kerala,(2006) 1 KerLT 19, the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes and questions arose in the light of of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly there was originally a grant. The scope of ‘grant’ was disputed. The contention of the petitioner was that it was the free hold property. The court did not accept the argument.

The rejected contention was stated by the Court as under:
“The petitioner contends that the respondents have no authority to demand seigniorage in respect of the timber of the trees planted by the company, as the property in question granted in favour of the company is not a leasehold property, but a free hold property, as is revealed by the order of grant Exts. R2(i).”

Edavagais

Edavagai Chiefs of Edapally, Kilimanoor, Poonjar and Vanjipuzhawere the Vassals of the Travancore-Maharaja (Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369). In Harska Turst v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, it is observed as under:

“ The Edavagais were petty kingdoms or principalities which remained independent or quasi independent until the consolidation of Travancore in the 18^th century.
They were outside the State Ayacut and paid no land tax.
The Chiefs, however, in exercise of their ancient sovereign powers, collected Melvaram or Melvara Rajgbhogam from the jenmis inside the Edavagais (See: 1945 T. L. R. 581 and 728).”

The lands in the following areas were recognized in Sirkar Accounts as Edavagas:-

1. Sreepadam.
- It comprised in 7 pakuthies in Chirayinkil Taluk.
- These villages were originally hereditary domain of Ranis Attangal. Subsequently the sovereignty was transferred to Travancore Maha Raja.
- Rent was collected from this land and accounted as public revenue.
2. Kilimanur.
- It comprised in 2 pakuthies in Chirayinkil Taluk.
- This land was granted to Kilimanur Koil Thampurans.
- The land revenue was assigned to the family of Koil Thampurans.
3. Edappally.
- It comprised in Edappally North and Edappally South Pakuthies in Alangad Taluk; Thrukkunnappuzha in Karthikappally Taluk; Kallooppara in Thiruvalla Taluk; and Vazhakkulam in Kunnathunad Taluk.
- The land revenue was assigned to the Chief of the Edappally Edavaga.
4. Vanjipuzha
- The administration and collection of rent from the tenants in this Edavaga was left to be settled by the Chief in 3 Pakuthies in Peermedu Taluk.
5. Poonjar
- A Pandya King, Manavikrama Kulasekhara Perumal, had to flee from Madurai, in the 12th century after a dispute over Madurai. He purchased, after selling his possessions, the Western hills of the Western Ghats (Poonjar) from Thekkumkur Rajas and established a Principality.
- By 15th Century, Marthanda-varma of Travancore had annexed Thekkumkur and Vadakkumkur, to Travancore. During 1749-50 Poonjar Principality was annexed to Travancore. Thereafter, the Poonjar Chief became the vassal of Travancore.

Edavagai Rights Acquisition Act, 1955

‘The Edavagai Act intended acquisition and extinguishing of all Edavagai rights over the Edavagais of Edapally, Kilimanoor, Poonjar and Vanjipuzha’ as observed in Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369. The Edavagai rights were that vested in the –

Edapally Swaroopam,
Kilimanoor Kottaram,
Poonjar Koickal and
Vanjipuzha Madom.

History of Land Tax Collection from Edavagai Lands

Harska Trust v. State of Kerala, ILR 1960 Ker 345, 1960 Ker LT 378, clearly lays down the history. It is pointed out that the collection of Basic-Tax was first introduced by the Travancore Land Tax Proclamation, 1121. Sec. 6 of the Proclamation provided that the Proclamation would not be applicable to certain classes of lands. One of those classes was-

“Freeholds (Adhikara Ozhivus) belonging to the Edavagais of Edapally, Kilimanoor, Vanjipuzha and Poonjar”.

The reason for non-collection of Tax from Edavagais was also laid down in this decision as under:

“Edavagais were petty kingdoms or principalities which remained independent or quasi-independent until the consolidation of Travancore in the 18th century. They were outside the State Ayacut and paid no land tax. The Chiefs, however, in exercise of their ancient sovereign powers, collected Melvaram or Melvara Rajabhogam from the jenmis inside the Edavagais (See 1945 TLR 581 and 728).”

As pointed out in Harska Trust v. State of Kerala, ILR 1960 Ker 345, the next enactment was the Travancore-Cochin Land Tax Act, 1955 which came into force on 1-4-1956. Sec. 17 of the Land Tax Act, 1955, repealed the Travancore Land Tax Proclamation, 1121.

The Act provided no exemption from tax to lands situated within the Edavagais. The reason thereof was the already promulgated Edavagai Rights Acquisition Act, 1955. It is laid down in Harska Trust v. State of Kerala, ILR 1960 Ker 345, as under:

“8. The rights of the Poonjar Chief were acquired by the State under the Edavagai Rights Acquisition Act, 1955, which came into force on 1-1-1956. Edavagai rights is defined in Sec. 2(5) of that Act as follows:
Edavagai rights means all the rights and privileges vested in
- the Edapally Swaroopam,
- the Kilimanoor Kottaram,
- the Poonjar Koickal and
- the Vanjipuzha Matom
relating to heir respective Edavagais and includes in the case of the Poonjar Koickal the right to receive Melvaram in respect of lands situate within the Edavagai of Poonjar.
9. Sub-s.(1) of S.3 of the Act provided that on and from its commencement, the privileges of the Edapally Swaroopam and the Poonjar Koickal relating to Excise Revenues of the Edavagais of Edapally and Poonjar shall stand extinguished, and sub-s.(2):
- “All the Edavagai rights of the Edapally Swaroopam and the Poonjar Koickal other than those mentioned in sub-section [1] and all the Edavagai rights of the Kilimanoor Kottaram and the Vanjipuzha Matom over their respective Edavagais, and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have been assigned by them on Kuthagapattom or other like demises,
- and all rights, title and interests vested in the Chiefs, in respect of waste lands or thanathu lands which have not been so assigned by them are hereby acquired by Government, and all such rights, title and interests shall vest in Government free of all encumbrances.”
Sub-sec. (2) of Sec. 4 fixed the compensation payable by the Government to the Edavagais for the acquisition of the rights, title, and interests mentioned in sub-s.(2) of S.3 at the amounts as specified in the Schedule, being 8 1/3 times the annual income of the respective Edavagais less five per cent for collection charges. It is clear from these provisions that what was acquired was the Chiefs rights, and it is difficult to understand how the acquisition of those rights can possibly affect the right of the State to tax the lands concerned.
10. The right to basic tax is in no sense a manifestation of the Chiefs right to Melvaram. It is a right founded on the Constitution and not on the acquisition of the rights of the Edavagais.”

Edavagai Rights Acquisition Act, did Not change Character of Holdings

The object behind the act is very clear – it was only to ‘acquire’ the rights of the Edavagais; it was not to change the character of the land held by the tenants or purchasers.

Lease-holdings of the Edavagais continued as Lease holdings, but with liability to pay Tax.

In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is pointed out-The Edavagai Rights Acquisition Act, 1955 did not change the character of the holdings and it only interfered with the right, title and interest of the respective Edavagais; they made made to vest with the Government. The effect was that the liability of the tenants to pay rent or other levies to the Edavagais stood altered as liability to tax imposed by the Government.

The 1955 Act is analysed in Harrisons Malayalam Limited v. State of Kerala, as under:

“There was also a saving clause in Section 11 which exempted from vesting, those lands held by the Chiefs as a Jenmy or as a pattadar under the Government and those held by the families, already settled and assessed, as also those lands in the direct possession of the Chiefs and any of the members of the respective families.”

Then it is observed by the High Court of Kerala as under:

“Hence land existing on a lease from either of the Edavagais or as freehold on valid purchase made, continues in the possession and ownership of the land holder/lessee and the liability to payment of rent or other levies to the Edavagais would stand altered as liability to tax imposed by the Government. This does not change the character of the holdings and only interferes with the right, title and interest of the respective Edavagais; which stands vested with the Government.”
It was pointed out-
- “The ‘Edavagai Rights’ is defined under sub-section (5), as the rights and privileges which vested in the families and ‘Chief’ was defined under sub-section (6) as the senior male member of the respective families, in whom the management of the family is vested.”
- “The right, title and interest within the respective Edavagais, existing in favour of the families and the Chiefs, by the enactment, stood vested in the Government, free of all encumbrances.”
Note: Here the High Court of Kerala (in Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369) did not consider the effect of grant.

Did Edavagai Rights Acquisition Act, 1955 confer Title to ‘Registered Holders‘

No.

Sec. 8(1) of the Edavagai Rights Acquisition Act, 1955 reads as under:

“On and from the first day of April 1956, every registered holding in an Edavagai shall be deemed to be a holding registered under Government, and every registered land holder thereof shall be deemed to be a registered holder and pattadar under Government, and the holding shall be liable to basic tax imposed by Government, from time to time, in lieu of the rent assessed thereon at the settlement of the Edavagai.

If we take the words, in Sec. 8(1) – that, “in lieu of the rent assessed thereon at the settlement of the Edavagai” – as that used by the legislature purposefully, we have to say that no title is conferred inasmuch as the lease (associated with rent) is not given-a-go-bye. From Harska Trust v. State of Kerala, ILR 1960 Ker 345 (note the words – “But for Sec. 8(1) of the Edavagai Rights Acquisition Act, 1955, both the basic tax and the Melvaram would have been payable“), it appears that this is the view that is taken in this decision. It reads as under:

“17. It is settled law that if a right has been acquired by virtue of a statute, it is not necessarily taken away by the repeal of that statute (See: AIR 1950 Pat 505). What the argument fails to note is the fact that it is not the repeal of the Travancore Edavagai Act, 1109, which attracts the basic tax to these lands but the positive provisions embodied in the Land Tax Act, 1955. But for Sec. 8(1) of the Edavagai Rights Acquisition Act, 1955, both the basic tax and the Melvaram would have been payable. That sub-section restricts the claim to basic tax.”
18. We are unable to hold that the impugned imposition of the basic tax is in any way ultra vires of the powers of the State under the Constitution or violative of any legal right vested in the petitioners before us. It must follow that these petitions have to be dismissed and we do so with costs, advocates fee Rs. 100 in each of the two petitions.

It can also be seen that the purport of the act is not conferring tile to the ‘registered holdings’.

What is Patta or Pattayam?

Patta is a Certificate or Document issued by the Government

(i) to tenants/grantees/licencees of Govt. property, for cultivation, residence etc., and
(ii) to persons to whom ownership is conferred upon Govt. property.

Following decisions speak as to patta issued to Tenants –

Nature Lovers Movement Vs. State of Kerala, AIR 2009 SC 1573
Kamala Bakshi Vs. Khairati Lal, AIR 2000 SC 1808
Glanrock Estate (P) Ltd Vs. State of Tamil Nadu, AIR 2010 SC 795 (Ryotwari Patta).
M Chinnathambi Alias Muthiah Vs. Ponnathal, 2010-1 Mad WN 725;
Umapathi, K. Vs. Addl. Collector, Thanjavur, 2000-2 Mad LJ 725
KS Shanthilal Vs. Sarojini Ammal, 1996-1 Mad LJ 562, (Ryotwari Patta)

Lessee is Referred to as Pattadhar

In Revenue documents (‘record of rights’) of various States in India, the lessee is referred to as pattadhar.
Several enactments also refer patta as lease-document.

‘Patta’ (or ‘Pattayam’) in Kerala

Now-a-days ‘patta’ is generally used to show absolute Title in Kerala.
But, Patta, as a Revenue-Term, does not express absolute Tile, in Kerala.
Kerala Forest Act, 1961 refers to patta to denote grant or lease.
It was used in erstwhile Travancore, in early times to signify Government- lease of lands; and subsequently it was used also to show conferment of Janmam rights also.

Kerala Government Land Assignment Act, 1960

From The Kerala Government Land Assignment Act, 1960, Sec. 2(2) and 8 it is clear that “Patta” is issued by the Government on assignment of land including that on lease or grant of licence.

Section 2(2) of the Land Assignment Act, 1960 reads as under:

“2. Definitions.- (1) ….
- (2). In this Act, unless the context otherwise requires,- (a) assignment includes a transfer of land by way of lease and a grant of licence for the use of land.”

Section 8 of the Land Assignment Act, 1960 reads as under:

“8. Assignment to take effect with restrictions, conditions, etc., according to their tenor .- All the provisions, restrictions, conditions and limitations contained in any Pattah or other document evidencing the assignment of Government land or of any interest therein shall be valid and take effect according to their tenor, notwithstanding any law for the time being in force or any custom or contract to the contrary.”

Read Blog: What is Patta or Pattayam?

‘Holder of property’ – ‘Pattadaran’

In Kerala, in the Land Tax Act Rules, 1972 and the Tax Receipt, describes the ‘holder of property’ as ‘Pattadaran’. It is definite that he is not the title holder.

Transfer of Registry Rules (Kerala) makes it clear – Patta and Title Different Concepts. In Moideen v. Village Officer, 9 January, 2019(Alexander Thomas, J.) Kerala High Court pointed out with reference to Rule 16 of the Transfer of Registry Rules that the mutation or acceptance of basic land tax, by itself, will not confer or extinguish title and that in accordance with the decisions of the Civil Court pattas will be revised from time to time. It is observed further as under:

“Rule 16 of the Transfer Registry Rules envisages that summary enquiry and decision thereon envisaged under those rule is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases and the prescribed legal rights is always subject to adjudication by Civil Court and pattas will be revised from time to time in accordance with such judicial decisions.”

In Cochin also – “Patta” denoted Lease

‘Patta’ was used in Travancore & Cochin to denote Government-recognition of both lease lands and Janmam lands.

In Harska Trust v. State of Kerala, ILR 1960 Ker 345, it is pointed out as under –

‘According to the petitioners, the issue of the Patta under that Act in respect of these lands was something duly done and the repeal of the Act cannot in any way affect the right granted under that Patta, namely, the right to continue in possession of the lands till the end of 1144 on payment of Rs. 2,665 (about) per year as rent against the basic tax now demanded of over Rs. 12,000 per year’.

Purambokes

Purambokes were unassessed Govt. lands connected with public works or used or reserved for public purposes, such as public road, and margins within their defined boundaries, public lanes and pathways, heads and banks of Rivers, Irrigation and drainage channels, Lakes and Backwaters, Markets, Burial-grounds, and Landing Bhats.

Lands acquired for public purposes were also included under the head ‘Purambokle’ in Revenue Registers.
The functions of the Land Revenue Department were to prevent encroachment.
Where an unobjectionable encroachment, the head of the land was changed to ‘Tharisu’.
Objectionable encroachment was punished with fine and charged to prohibitory assessment till retracted.
Land Revenue Department granted leases of poramboke for putting up shops in Markets and given permission to occupy the land in Festivals.

Tharisu or Assessed Waste

Tharisu was the waste lands ‘at the disposal of the Govt’ and available for ‘extension of cultivation’. It was distinguished from poramboke. Unauthorized occupation of tharisu was also punishable.

Transposition ‘tharishu’ to ‘puthual-registry’:

Detailed procedure was prescribed for transposing ‘tharishu’ to ‘puthual-registry’ in the Revenue Manuel.

Puthuval Assignment

Puthuval lands were lands (i) not assessed and registered in the Sirkar accounts in the name of any individual and (ii) not governed by Regulation II of 1040 (1865). These lands, when remained unregistered, were the absolute property of Government. Title was conferred to individuals by the Grant or assignment by the Government, .
Under the Puthuel Rules (1097 ME : 1922) it had to be done by public auction or by ‘assignment otherwise than by auction’. Such converted lands were treated as ‘pandarappattom’ lands.
In the Puthuval Rules there was provision for ‘Concessional Registry of Lands’. for the assignment to the members of the depressed classes or to indigent families belonging to other communities, on application made to the Tahsildar of the Taluk.

If the encroachment was one where ‘Registry is desired’ an application could be taken from the occupier and dealt with under Puthuval rules. If encroachment was ‘not desired’ or if puthuval registry was refused, steps could have been taken against the encroachment.

Thanathuchitta lands

It was virtually the Govt. land or land at the disposal of the Government. It was occupied by Govt. institutions or sirkar temples (not included in poramboke) or for Govt. purposes. Irippukaram was fixed upon this land. The Sirkar was treated as Pattadar though no patta was actually issued. It was analogous to registered lands, but Sirkar itself was in position of pattadar. These lands were not opened for all sections of public. They cannot be transferred to poramboke or tharisu.

These lands fall under ‘Govt. lands’ other than poramboke in Land Conservancy Regulations. It was the duty of the Land Revenue Department to prevent encroachments.

Reserved Forests

It was the land under Forest Department. It comes under Forest Regulations of 1068 (1893).

Land Revenue Department co-operate with Forest Department in case of trespass.

Reserved lands or proposed reserves

These lands were proposed for reservation under the Forest Regulations.

Land Revenue Department co-operate with Forest Department in enforcing the provisions.

Unreserved lands

It was also under the control of Forest Department. Most of such lands were available for extension of cultivation.

Land Tenures.

Revenue Records – Maintained Promptly

The Land Revenue Department was one of the main departments of the Travancore Government. The ownership remained with the Jenmies and Sircar (Government). The agriculturists, who formed majority of population, had to pay various kinds of remunerations to the Janmies and the Sircar (Government), based on the nature of tenancy and the nature of the ‘Jenmam right’. The lease arrangements were known by various nomenclatures based on the conditions of tenancies. Several enactments were made for proper collection of Taxes, and management of the Govt. lands and the lands upon which the tenants toiled. The Revenue Records were prepared and maintained promptly.

Various Land-Tenuers

The tenures, according to the Travancore Land Revenue Manual, Volume III (1915), fall under two main heads:

(1) Sirkar or Pandaravaga;
(2) Janmam.

760 Types of Tenures in Travancore

In ‘Historical Introduction to the Kerala Land Reforms Act and the Working of the Land Tribunals’ PN Prabhakaran Pillai, says as under:

“The land tenures that existed in the former Travancore area were very complex and special tenures and sub-tenures were numerous It may be seen that there were 760 types of tenures including sub-tenures in Travancore area alone. At the last Revenue Settlement’, an endeavour was made to systematise and simplify the tenures as far as possible. After the settlement, the number of tenures were reduced to a considerable minimum. The numerous tenures which have been recognised at the settlement may be generally traced to one or other of main two heads, viz., Sirkar or Pandaravaka and Jenmom.”

In settlement (1910), numerous tenures had been recognized. For practical purposes, as per the Travancore Land Revenue Manual, the tenures were classified as under:

1. Sirkar or Pandaravaga
2. Sirkar Devaswom vaga
3. Kandukrishi
4. Sreepadam vaga
4. Sree pandaravaga
6. Janmam

1. Sirkar or Pandaravaga:

This tenure represents Sirkar as the landlord. The tenures fall under the following heads:

a) Pandarapattom,

Pandarapattom was originally in the nature of lease without any proprietary or transferable right. By the royal proclamations, the holders of these lands were given with full proprietary rights and declared to be private, heritable and transferrable property. Puthuval lands came under this tenure.
b) Otti

It was originally in the nature of a mortgage. It stood as a real or constructive loan by the State. Interest was deducted from Pattom to be paid by the holder. He had also to pay Rajabhogam (tax).
c) Enams

Enams were service enams or personal enams. Service enams were inalienable. It continue as long as the holder was in service. Personal enams were given to support individuals or families. Such properties could have been transferred by the holders.
d) Viruthi

It stood analogous to service enams. But had permanency if the holder continued his service regularly. When he died the holding passed to legal heirs subject to certain payments.
e) Special tenures

It was in the nature of enam which received special treatment.
f) Karamolivu

All Lands except janmam included under this head. The land was tax-free.

2. Sirkar Devaswom vaga

The lands under this head were originally janmam lands or private property of Devaswoms. They were held on venpattom tenure. Later on, Sirkar took over the Devaswoms and the lands were treated as Sirkar lands. Subsequently, Sirkar Devaswom lands were separated from Sirkar lands; and separate accounts were kept.

3. Kandukrishi

It was the home-farms or the private property of the sovereign. The tenants had no right in such properties.

4. Sreepadam vaga

Sreepadam lands were-
- (i) thelands comprised in the free-hold villages of Idakkode, Illamba, Mudakkal, Alamkodu, Avanavancherry, Attingal and Kilattingal in the Chirayinkil Taluk, the revenue from which was wholly assigned in favour of the Sreepadam Palace; and
- (ii) other lands not being pandaravaka lands situate in the State of Kerala and owned by the Sreepadam Palace (See: The Sreepadam Lands Enfranchisement Act, 1969).

5. Sree Pandaravaga

Sree Pandaravaka land was the land owned by the Sree Padmanabhaswamy Temple and registered in the revenue records as ‘Sree Pandaravaka’ (See: The Sree Pandaravaka Lands (Vesting And Enfranchisement) Act, 1971).
Sree Padmanabha Swamy Temple had originally been administered by Madathil Pillamars. The lands that belonged to the Temple were in the possession of various persons under different tenures. All such persons were liable to pay tax as ‘Rajabhogam’. The grants or Inams were made by the Kingdom for the services rendered. Such Inams included tenures like Adima, Anubhogam, Thiruvulam, Thiruvadayalam etc. The Madathil Pillamars collected the Michavaram due to Devaswom on those lands to be utilized for the poojas and other rituals to be performed in the temple.
When the Revenue Settlement was prepared (in 1910), all the properties that were classified under the names of the different Madoms were brought under the class ‘Sree Pandaravaka’. The lands that were in the names of the family members, received as personal Inams were described as Kudumbaporuthy lands.

6. Janmam

It was the properties owned by Janmies. Regulation of 1071 (1896) attracted these properties. The tax under Rajabhogam had to be paid for this land. But Devaswom and Brahmaswom thanathu lands, though came under the head ‘Janmam’, were exempted from tax, so long as they remained unalienated. When alienated it was charged under Rajabhogam assessment. Devaswom and Brehmaswom properties could have been subjected to outright sale.

Travancore Proclamation of 1040 (1865)

In Travancore, by virtue of Proclamation of 1040 (1865), all Sirkar (or Pandaravaga) pattom-lands were converted into full proprietary-lands.

The Proclamation of 1040 reads thus:

“PROCLAMATION

By His Highness the Maha Rajah of Travancore, issued under date the 2nd June 1865, corresponding to the 21st Edavam 1040.

Whereas we earnestly desire that the possession of landed as well as other property in Our territory should be as secure as possible; and whereas We are of opinion that, with this view, Sirkar Pattom lands can be placed on a much better footing than at present so as to enhance their value; We are pleased to notify to Our ryots

Istly- that the Sirkar hereby and for ever surrenders, for the benefit of the people all optional power over the following classes of lands, whether wet, garden or dry, and whether included in the Ayacut accounts or registered since:
Ven Pattom, Vettolivoo Pattom, Maraya Pattom, Olavoo Pattom, Mara Pattom, and all such Durkast Pattom the tax of which is understood to be fixed till the next Survey and Assessment;
2ndly. that the ryots holding these lands may regard them fully as private, heri-table, saleable, and otherwise transferable, property;
3rdly. accordingly, the sales, mortgages, & e., of these lands will hence-forward be valid; may be effected on stamped cadjans and will be duly registered; the lands may be sold for arrears of tax, in execution of decrees of Courts and such other legitimate purposes, and may also be accepted as security by the Sirkar as well as by private individuals;
4thly. that the holders of the lands in question may rest assured that they may enjoy them undisturbed so long as the appointed assessment is paid;
5thly. that the said holders are hence-forth at full liberty to lay out labour and capital on their lands of the aforesaid description to any extent they please, being sure of continued and secure possession;
6thly. that the aforesaid description of lands will be resumable by the Sirkar like Jenmom and other private lands only for purely public purposes, as for instance, for making roads, canals, public buildings, & e., and when resumed for such purposes compensation will be paid by the Sirkar not for improvements only as here to fore, but equal, to the full market value of such lands;
7thly. that the foregoing concessions are not however to be understood to affect in any way the rights of the Sirkar to regulate the land tax, to resume escheats, to confiscate the property of criminals, and generally such rights as have heretofore been exercised upon all property in general;
8thly. that it is to be understood that when Pattom land being a portion of a holding, is transferred to a pauper, with the view of defrauding the Sirkar of the tax due to it, the Sirkar will have the right of apportioning the tax so as to prevent loss of revenue; and,
9thly. (Repealed by Proclamation dated the 5th Karkadakam 1059). (Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 : Rev. Fr. Victor Fernandez Vs Albert Fernandez, AIR 1971 Ker 168; 1971 Ker LT 1.)

Land-Classification in Cochin

Pandaravaka, or Puravaka

All lands were classed under Pandaravaka or Puravaka.

Pandaravaka lands – The lands owned by the State (or State having the jenmom or proprietary right).
Puravaka land – The land over which the proprietary right (jenmam right) was vested with private individuals or public institutions (or land in which jenmam right did not vest in the Sarkar.

Land-Tenuers in Cochin

Verumpattom

The chief land systems of tenancy under which tenants held lands owned by others were called Verumpattom. This was simple leasehold. By a series of legislative enactments, culminated in the Cochin Tenancy Act (1118 ME – 1943) – hailed as the ‘great charter’ for the tenants, tenants gained occupancy rights in the lands held by them.

Kanam

Verumpattom became a kanam when the landlord acknowledged liability to pay a lump sum to the tenant on the redemption of his lease.

Pankuvaramdars

Under this tenancy tenants raised crops on agricultural lands in partnership with the owners, the terms of partnership varyied from place to place.

Kudikidappukar

Under this arrangement landlords allowed tenants to occupy a portion of their land generally for putting up a house.

Otti (Mortgages)

Tenancy under this head took different forms in different regions.

Cochin Settlement Proclamation, 1080 (1905)

Cochin Settlement Proclamation, was made by his Highness Sir Rama Varma Raja of Cochin on March 10, 1905. It declared that the verumpattom holders of lands would, acquire full rights to the soil of the lands they hold. The Proclamation aimed to make better the status of the men toiled in the agricultural fields and to improve the economic insecurity of the tenants, and thereby increase the revenue of the King also.

Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, describes the 1905 declaration as under:

“This proclamation consists of twenty- eight clauses which deal broadly with all the aspects of land tenure prevailing in the State of Cochin. The preamble to the proclamation recites that the Raja had already ordered that a complete survey embracing demarcation and mapping and the preparation of an accurate record of titles in respect of all descriptions of properties within his entire State shall be carried out, and it adds that directions had been issued that a revenue settlement or revision of the State demand shall be conducted in accordance with the principles laid down by the proclamation. Clause 6 enumerates the tenures of lands prevailing in the State. Under this clause there are two major tenures –
- (1) Pandaravaka and
- (2) Puravaka.
The former are held on one or the other of six varieties of tenures; of these we are concerned with the verumpattom sub-tenure. This clause provides that the Pandaravaka verumpattom tenure shall be deemed as the normal tenure for settling the full State demand and that the other tenures shall be treated as favourable tenures and settled on the lines indicated in cls. 14 to 17. Clause 7 says that the present rate of assessment on Pandaravaka verumpattom nilas varies from one eighth para to twelve paras of paddy for every para of land; and it adds that such a vast disparity of rates is indicative of unequal incidence under the existing revenue system. That is why the clause proceeds to lay down that the State demand should bear a fixed proportion to the produce a land is capable of yielding and so it prescribes that under the Pandaravaka verumpattom tenure the holder should pay half of the net produce to the State. The clause then proceeds to provide for the method in which this half of the net produce should be determined. Clauses 11 and 12 deal with the assessment on tree.
Clause 13 is important. It says:
- “at present holders of Pandaravaka verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in the soil will induce the cultivator to improve his land and thereby add to the prosperity of the land, we hereby declare that the verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue provided that the rights to metals, minerals possessed by the State in all lands under whatever tenure they are held are reserved to the State”.
Under cl. 18 it is provided, inter alia, that in the case of Pandaravaka lands held on the verumpattom tenure the settlement shall be made with the present holder of the land and in regard to Puravaka land with the Janmam. Clause 22 prescribes the procedure and the time for the introduction of settlement. It requires that before the introduction of the new rates of assessment a rough patta shall be issued to each of the landholders showing the relevant detail of his holdings and the assessment to be paid by him hereafter. The object of preparing such a patta is to give an opportunity to the landholders to bring to the notice of the authorities their objections if any. The objections are then required to be heard before the final entries are made. Clause 26 declares that the new settlement shall be current for a term of thirty years. This has been done with a view to secure the utmost freedom of action to the landholders in improving their properties and turning them to the best advantage according to their means and inclination. Clause 27 deals with escheats; and cl. 28 makes general provisions as to the formation of a new land record including reassessment of land and the registration of titles “a work calculated to promote the well- being of a State”.

Malabar –‘Jenmi’, ‘Jenmom’ and ‘Ryotwari System’

Malabar is the northern part of Kerala. It formed part of the erstwhile Madras province in the British India. By the medieval period lands in South India were owned by Jenmis and the tenants cultivated the land giving rent or other remuneration to the landlords. ‘Jenmi’ held ‘jenmom lands’ as his absolute property.

Innumerable varieties of land tenures were prevalent in various parts of South India. Two types of tenures were important in Madras Presidency: landlord-tenures and the ryotwari-tenures. (‘The Land Systems of British India’ by Bedan Henry Powell first published in 1892; ‘Land Tenures in the Madras Presidency’ by S. Sundararaja Iyengar, published in 1916. See: Thressiamma Jacob v. Geologist, Dptt. of Mining, 2013 (9) SCC 725).

In Balmadies Plantations Ltd. v. The State of Tamil Nadu, AIR 1972 SC 2240, the Constitution Bench of our Supreme Court held as under:

“Originally the janmis in Malabar were absolute proprietors of the land and did not pay land revenue. After Malabar was annexed by the British in the beginning of the 19^th century, the janmis conceded the liability to pay land revenue” (Quoted in Thressiamma Jacob v. Geologist, Dptt. of Mining, 2013-9 SCC 725.)

Land owned by the Government was given to the cultivators under the ryotwari system, under a patta. Sir Thomas Munro, Madras Governor, introduced ryotwari system throughout the Madras Presidency in 1820. British Government collected taxes directly from the peasants. The rate of tax was 50% in dry-lands and 60% in irrigated land.

What was ‘Patta’ In Malabar?

In Malabar area ‘Patta’ was originally a word connected to land-lease. “Patta” issued when Lease by Government.

Wanchoo J., observed in Kunhikoman v. State of Kerala AIR 1962 SC 723, as under:

‘Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he bad many of the advantages of a proprietor.”

Ryotwari System in Malabar – Lease by Government, under Pattas

Sir Thomas Munro, Madras Governor, introduced ryotwari system throughout the Madras Presidency in 1820.
Under the ryotwari system, land was given on lease by the government to the ryot under a patta.
A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant.
British Government collected taxes directly from the peasants. The rate of tax was 50% in dry-lands and 60% in irrigated land.
In S. Thenappa Chettiarv. State of Tamil Nadu, AIR 1986 SC 1117, it was held, following Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, that the expression ‘estate’ in Article 31A included ‘ryotwari’ land also by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.

Ryotwari Settlement, 1920 – Assessment for Revenue

As stated above, Sir Thomas Munro, Madras Governor, introduced ryotwari system throughout the Madras Presidency in 1820. The basic idea of ryotwari settlement (revenue-settlement is fixing tax or rent, after survey in most cases) was that every bit of land was assessed to a certain revenue and assigned a survey number for a period of years, which was usually thirty and each occupant of such land held it subject to his paying the land-revenue fixed on that land. But it was open to the occupant to relinquish his land or to take new land which had been relinquished by some other occupant or become otherwise available on payment of assessment (Land Systems of British India by Baden-Powell. See: Thressiamma Jacob v. Geologist, Dptt. of Mining, 2013-9 SCC 725).

Land-Settlements in Malabar

Madras Land Registration Regulation, 1802

The Madras Land Registration Regulation, 1802 (Madras Regulation XXVI of 1802), is the first Settlement. It was promulgated with the object as shown in its preamble –

“Whereas it is expedient that public means should be established for the purpose of ascertaining the public revenue on landed estates paying revenue to the Government as well as for prescribing rules for the transfer,of all lands; wherefore the following rules have been passed for that purpose.”

Malabar Land Registration Act, 1895

The Malabar Land Registration Act, 1895 (Act 3 of 1896), is promulgated with the object as shown in its preamble –

“Whereas Regulation XXVI of 1802 provides that landed property paying revenue to Government shall be registered by the Collector; and whereas such landed property *[in certain areas in the Nilgiri district] has in many cases not been registered in the names of the proprietors thereof; and whereas it is desirable for the security of the public revenue to provide a summary means whereby the Collector may ascertain such proprietors …..”

*[The words “and Certain neighbouring areas in the State of Madras” were substituted for the words “and the Wynaad” by section 45 of the Malabar Tenancy (Amendment) Act, 1951 (Madras Act XXXIII of 1951) and the words “in certain areas in the Nilgiri district ” were substituted for the words ” in Malabar and certain neighbouring areas in the State of Madras” by the Madras Adaptation of Laws Order, 1957. The above Act came into force on the 15th March 1952.]

Prior to independence, the last survey settlement was made in Malabar during 1926-1934. It was done as per the Resettlement Manual of 1930.

Chitta and Adangal in Madras

Chitta: Chitta is a revenue document maintained in Taluk office. It contains extent of land, name of owner and the type of land (wet/dry, irrigated/rainfed, etc.).

Adangal: Adangal is also a revenue record that contains details about the land, such as the ownership, extent, classification of land, and details of cultivators. It is taken as a document for showing the ownership and possession of land. (See: D. Rajamanickam v. M. Pasupathiammal, 2019-2 Mad LJ 208; N. Chandrasekaran v. Arulmighu Thiruvatteeswarar Thirukkoil, 2020-1 LW 631; 2020-5 Mad LJ 227)

Part III

Land Reform Measures that Shaped Kerala

In ‘Historical Introduction to the Kerala Land Reforms Act and the Working of the Land Tribunals’ PN Prabhakaran Pillai, observes as under:

“Most of the Land Reforms Laws enacted by the States have not been effectively implemented. Kerala Land Reforms Act, 1963, as amended upto date is however an exception. The major amendment made in 1969 is considered to be a bold step in the land reforms legislation. No other state in India has introduced a socio-economic legislation of this type to safeguard the interest of the agricultural classes of the society.”

Travancore

Travancore Royal Proclamation, 1040 (1865 AD)
Travancore Royal Proclamation, 1061 (1886)
Travancore Estate Rent Recovery Regulations, 1068 (1893)
Travancore Jenmi and Kudiyan Act, 1071 (1896)
Travancore Royal Proclamation, 1097 (1922)
Travancore Edavagai Regulations, 1934
Travancore Jenmi and Kudiyan (Amendment) Act, 1935.
Travancore Prevention of Eviction Act, 1949
Travancore Kandukrishi Proclamation, 1949
Travancore Holding (Stay of Evictions Proceedings) Act, 1950 (Travancore Act VIII of 1950), Act II of 1951 Act VII of 1952, Act IV of 1953 etc.
Travancore Edavagai Rights Acquisition Act, 1955.
Travancore Cochin Prevention of Eviction Act, 1955.
Travancore Kanom Tenancy Act, 1955
Travancore-Cochin Compensation for Tenants’ Improvements Act, 1956,

Malabar

Malabar Compensation for Tenants’ Improvements Act, 1887
Malabar Tenancy Act, 1929.
Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, Act 26 of 1963;
Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwsri) Act, Act 30 of 1963;
Tamil Nadu Leaseholds (Abolition and Conversion into Ryotwari) Act, Act 27 of 1963.

Cochin

Cochin Settlement Proclamation, 1080 (1905)
Cochin Devaswom Proclamation, 1909
Cochin Tenancy Act, 1914
Cochin Kanom Tenancy Act, 1113 (1938)
Cochin Devaswom Verumpattom Settlement Proclamation (Cochin Verumpattomdars Act), 1118 (1943).

Kerala

Kerala Agrarian Relations Act, 1961.
Kerala Land Reforms Act, 1963.

Kerala Agrarian Relations Act, 1961

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the legislatice History of Kerala Agrarian Relations Bill is given. It reads as under:

“The Kerala Agrarian Relations Bill which has ultimately become the Act was published in the Government Gazette of Kerala on December 18, 1957 and was introduced in the Kerala Legislative Assembly on December 21, 1957 by the Communist Government which was then in power.
The bill was discussed in the Assembly and was ultimately passed by it on June 10, 1959. It was then reserved by the Governor of the state for the assent of the President under Art. 200 of the Constitution, Meanwhile, on July 31, 1959 the President issued a proclamation under Art. 356 and the Assembly was dissolved. In February1960 mid-term general elections took place in Kerala and as a result a coalition Government came into power.
On July 27, 1960 the President for whose assent the bill was pending sent it back with his message requesting the Legislative Assembly to reconsider the bill in the light of the specific amendments suggested by him. On August 2, 1960 the Governor returned the bill remitted by the President with his message and the amendments suggested by him to the new Assembly for consideration. On September 26, 1960 the amendments suggested by the President were taken up for consideration by the Assembly and ultimately on October 15, 1960 the bill as amended in the light of the President s recommendations was passed by the Assembly. It then received the assent of the President on January 21, 1961, and after it thus became law.”

The Supreme Court struck down the 1961 Act as regards its application to the ryotwari lands of Hosdurg and Kasargod Taluks, as unconstitutional, on the ground that it was violative of the Art. 14 of the Constitution, in Kunjikoman V. State of Kerala, AIR 1962 SC 723 .

The High Court of Kerala, declared its application, null and void, as regards the ryotwari lands of Malabar area and the lands held under Kandukrishi, Sreepadomvaka, Thiruppuvaram, Pandaravaka, Viruthi etc., in Govindaru Nampoothiripad v. State of Kerala, 1962 KLT 913, AIR 1963 Ker 86.

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, challenge was made to the Kerala Agrarian Relations Act, 1961 (as regards the Pandaravaka Lands of Cochin),on the basis of Arts. 14, 19 and 31 of the Constitution. It was not not accepted.

The Kerala Land Reforms Act, 1963

The Kerala Land Reforms Act, 1963 made Kerala change tremendously. Modern Kerala is shaped by this Act (though some, including a few who were benefitted, may hesitate).

Landmark Enactments in Land Tenure Reforms that Culminated in KLR Act, 1963

Royal Pattom Proclamation of 1040 (1865 AD) – Fist Gigantic Step

During the second half of the 19^th century several Royal Proclamations were promulgated with a view to confer rights in the land to the tenants who were the real cultivators. Majority of the people were engaged in agriculture; but the lands belonged to Jenmies (Sircar, Brahmins or Devaswoms). The cultivators held the land under lease arrangement known as Pattom, Otti, Inam and Viruthi etc. One of the important Regulations came in the line of agrarian reforms was the Royal Proclamation of 1040 ME (1865 AD). It pertained to Pattom (lease) tenements created (by Sircar) on Sirkar lands known as Pandaravaka lands. It is exalted as the Magna Carta of peasants of Travancore it being led to conferring land to tillers, step by step.

Proclamation of 1040 (1865) – No Proprietary Rights; But, Permanency to Cultivators

Till 1040 ME (1865 AD), the agriculturists, who held the Pandaravaka lands under Pattom arrangement, were liable to be treated as mere tenants-at-will; the land being resumable resumable (by the Government) at any time, as they were in the nature of temporary leases just like tenements created by private jenmis.

The Pattom Proclamation of 1040 (1865) converted the pattom arrangement on pandaravaka lands into permanent leases and conferred on the holders thereof permanent rights of occupancy, heritable and alienable. Though the Proclamation of 1040 ME did not expressly confer full proprietary rights on tenants, it gave the tenants permanency in the Pandaravaka soil; and it recorded the fist gigantic step towards the land reforms in Travancore.

Royal Proclamation of 1061 (1886) Brings in Further Radical Changes

Paragraph 9 of the Proclamation of 1061 says, with reference to Royal Proclamation of the 21st Edavam 1040, as regards Pandarapattam lands, as under:

“these lands were originally the absolute property of Government, and the tenants were mere tenants-at-will; but, by the Royal Proclamation of the 21st Edavam 1040, Government generously waived all right to these lands, and declared them to be the private, hereitable, saleable property of the holders.”

Section 22 of the Settlement Proclamation of 1061 (1886) made radical changes in land tenure.

Those changes were:

(1) no debt shall be recognised as due to the holder;
(2) no interest shall be deducted from the Pattom on such debt;
(3) no reduction of debt or a corresponding enhancement of the Sirkar demand shall be made when such properties were transferred by sale.
The properties held on the tenures in question shall be recognised as so many favourably assessed lands or Inams and confirmed to the holders as such.

Clause 7 of Section 24 of the Proclamation provided as under:

“There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.(Quoted in: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86.)

Jenmi & Kudiyan Act (1896) and Amendments – Made Kudiyan, Full Owner

‘Jenmam land’ is defined in the Jenmi and Kudiyan Regulation, V of 1071 (1896), as land (other than Pandaravaka, Sripandaravaka, Kandukrishi or Sircar Devaswom land, recognised as such in the Sircar accounts) which is either entirely exempt from Government tax or if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of the renewal fees.

This definition is intended for the purposes of the Regulation, which regulates the relations between Janmis and their Kanapattom tenants. A Janmi has not only Kanapattom tenants but has other tenants as well holding on Adima Anubhogam, Thiruvulam and similar other tenures and the Regulation is not concerned with the latter class of tenants in whose case the ordinary law of landlord and tenant is applicable. Revenue law, on the other hand, makes no distinction between a Kanapattom tenant and a non Kanapattom tenant if he holds under a Janmi recognised in the revenue accounts.

Before Travancore Jenmi and Kudiyan Act, V of 1071 (1896), lands were granted as Inams by the Sovereign to Devaswoms and Brahmin jenmies. (Sreekumaran Kesavan Namboori v. Gopalan Madhavan, 1956 KLT 256).

The Jenmi & Kudiyan Regulation of 1071 ME (1896) was passed to stop the injustices perpetrated on the Kudiyans (bond-servants). It was amended by the Amendment Regulation of 1108 ME. The report of the Committee which led to the Amendment Regulation of 1108 ME reads as under:

“6. The outstanding feature of the amendment is that it lays the ghost of the Jenmis’ ownership for ever. The Jenmi has been expropriated and reduced to the position of a mere rentier. Refined considerations in the interests of the reciprocal rights and obligations have all been swept away. The solution of the problem looks like the cutting of the Gordian knot and the process is rather rough and coarse by the side of the Regulation of 1071. The measure is eminently democratic. To some extent it is socialistic also. For, one of the aims of some schools of social reformers, is to make the labourer free by breaking down the relationship of master and servant and similar situations involving superiority and inferiority by means of legislative interference. Whatever it be, to all appearance the jenmi has received the knock-out-blow. Yet it may be asked whether he has not good reason to come back smiling. For what he is entitled to by way of michavaram, renewal fees and customary dues has been consolidated and spread out with the advantage that he is assured of the payment without any worry. The burden on the Kudiyan is clearly fixed and the door has been closed on the chance of his escape. It remains to be seen who is the better for the present amendment of the Regulation”. (Quoted in: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KHC 719; 2018-2 KLT 369)

The changes introduced by the Amended Regulation reads as under:

“i. Jenmi is not the owner of the land hereafter, his right being confined to the receipt of Jenmikaram as fixed by the law;
ii. the Kudiyan is the full owner of the land subject only to the payment of the Jenmikaram to the Jenmi;
iii. Jenmikaram is to be regulated and controlled by the Settlement Pattamicham and not by the Kanappattam contract except till the next general Land Revenue Settlement and, that even, only subject to certain statutory limitations;
iv. no renewals are hereafter obligatory;
v. Jenmis’ dues may be fractioned out and paid annually and in money as prescribed by the Statute;
vi. the rate of interest on arrears of Jenmikaram has been reduced to nine per cent whether payable in kind or in money when collected by the Jenmy direct, or under the provisions of chapter III or otherwise through Court, and to six per cent when collected by the Government under the provisions of chapter IV;
vii. The period of limitation for recovery of arrears of Jenmikaram has been reduced from the former period of twelve years to a period of six years;
viii. Government have undertaken the collection of Jenmikaram and payment thereof over to the Jenmi;
ix. in the case of Government realising the Jenmikaram under the provisions of chapter IV only the land on which the Jenmikaram is a charge shall be sold for arrears of jenmikaram, though this restriction may not apply as regards the movables of the defaulter;
x. Section 45 enacts an equitable method of the distribution between Jenmi and Kudiyan of compensation money granted by the Sircar when the Government compulsorily acquire or purchase jenmom lands”.

Cochin Settlement Proclamation of 1080 (1905)

As shown above, the Sirkar or Pandaravaka tenure holders of the Kingdom of Cochin were conferred with fixity of tenure by the Settlement Proclamation of 1080 (1905).

The Settlement Proclamation of 1905 covered all lands in the State, including lands held under concessional tenures or as tax-free. The Rules made under the Act contained the procedure for the issue of title deeds in respect of lands held under such grants. As stated above, Clause 13 of the Settlement Proclamation provided that the holders of Pandaravaka Verumpattom lands would acquire ‘full rights to the soil of the lands‘ they held. Settlement Proclamation of Cochin of 1080 (1905) Clause 13 provided as under:

“At present holders of Pandaravaka Verumpattom lands do not possess any property in the soil. As we are convinced that proprietorship in soil will induce a cultivator to improve his land and thereby add to agricultural prosperity of the country, we hereby declare that our Verumpattom holders of lands shall, after the new settlement has been introduced, acquire full rights to the soil of the lands they hold and that their rights shall remain undisturbed so long as they regularly pay the State revenue, provided that the rights to metals and minerals, possessed by the State in all lands under whatever tenures they are held, are reserved to the State”.

The Settlement Proclamation of 1905 was expressly repealed by the Land Tax Act of 1955 of the united State of Travancore-Cochin; but this Act, as a whole, was struck down by the Supreme Court in AIR 1961 SC 552. In Kesavan Vadhyan Namboodri v. State of Kerala, AIR 1968 Ker 279, it was pointed out that this Proclamation of 1080 (1905) stood repealed by implication by the Land Tax Act of 1961.

Section 4 of the Cochin Verumpattomdars Act, 1118, reads as under:

“Notwithstanding any law, custom or contract to the contrary, every verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in Section 8 of this act.”

Section 4 concerned with the fixity of tenure, that is, fixity of the period of holding, possession or enjoyment of the land. The effect of such a mere conferment of fixity of tenure was not to continue the lease beyond the period specified therein, but to give to the person who continues to remain in possession of the land after the lease has come to an end the status of a statutory tenant. (Ittiravi Namboodiri Vs. Krishnankutty Menon AIR 1964 Ker 298. Dr. K. A. Dhairyawan V. J. R. Thakur, AIR 1958 SC 789, referred to.)

Travancore Jenmi and Kudiyan (Amendment) Act, 1935

‘Proceedings of the Travancore Sri Chitra State Council’ recorded the speech of Kayalam Paramesvaran Pillai (Additional Head Sircar Vakil) while moving the Travancore Jenmi and Kudiyan Regulation (Amendment) Bill, on 28^th May 1935, as under:

“Sir, I beg to move that the Travancore Jenmi Kudiyan Regulation (Amendment) Bill, as passed by the Sri Mulam Assembly, be taken into consideration. I am sure that honourable members have carefully gone through the Bill and that it is not necessary for me to explain the principles underlying the Bill at great length. It will be noticed that the main point for which this Bill is proposed is in regard to jenmikaram in respect of cherikal lands held on Kanapattom. Honourable members know what a kanapattom transaction is. It is a demise by a jenmi to a person called kudiyan in respect of a Jenmam land on receipt by the jenmi of an amount as loan, called Kanam. The kudiyan has to pay a rent or pattom to the jenmi. The jenmi has to pay interest in respect of the kanam money advanced. The net result is that the kudiyan pays to the jenmi the rent or pattom minus the interest and this residual rent is called michavaram. Besides this michavaram the kudiyan has also to pay certain customary dues and periodical fees. Under the Jenmi and Kudiyan Regulation as amended, all these dues have been consolidated and their yearly value has been taken and fixed as the amount payable every year in lieu of all dues to the jenmi. This is the jenmivaram and this law further lays down what shall be the rent payable and this is called the jenmikaram. The jenmikaram may be “said to be the statutory rent and the jenmivaram the contract rent, and it has been laid down that in the case of Jenmom lands generally jenmivaram shall be the jenmikaram. But in the case of cherikal lands a differential provision is made and it has been laid down that in respect of cherikal lands that jenmikaram shall be the settlement pattamicham minus the interest on the kanam amount. Perhaps I may have to explain what settlement pattamicham is. Honourable members know that settlement pattom is the pattern fixed by Government in respect of Sirkar lands in the settlement of tax. The Settlement Pattamicham means the settlement pattom fixed at the settlement minus the tax actually payable in respect of the land. In respect of cherikal lands what has been fixed is that the kudiyan shall pay to the jenmi the settlement pattamicham minus the interest on the kanam amount. It has been assumed that the settlement pattamicham is the utmost fair rent that may be paid by the kudiyan to the jenmi. But it has been noticed in actual fact that the interest on the kanam is more than the settlement pattamicham, with the result that in many cases the jenmikaram is nil or a minus quantity. This was not the intention of the Legislature. Therefore provision is now proposed, in this Bill, that in respect of cherikal lands either the jenmivaram or settlement pattamicham minus the interest on kanam amount shall be the jenmikaram whichever is greater. I am sure that this will be admitted to be a reasonable arrangement. This is the main principle of the Bill.”

Tamil Nadu Inam-Estate Enactments

In Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, the Constitution Bench considered the constitutionality of various Land Reform enactments that conferred ownership rights in tenants, including

(i) Tamil Nadu Inam Estates (Abolition and Conversion into Ryotwari) Act, Act 26 of 1963;
(ii) Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwsri) Act, Act 30 of 1963; and
(iii) the Tamil Nadu Leaseholds (Abolition and Conversion into Ryotwari) Act, Act 27 of 1963

and held that these Acts were completely protected by Art. 31A of the Constitution. The negative arguments on Article 31 and 31A footed on estate, public purpose etc. were rejected.

‘Estate’ in Article 31A included ‘Ryotwari’ Land also

Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, was followed in S. Thenappa Chettiar Etc v. State of Tamil Nadu, AIR 1986 SC 1117; and held that the expression ‘estate’ in Article 31A included ‘ryotwari’ land also by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.

Kannan Devan Hills (Resumption of Lands) Act, 1971 & Land History

215 sq. miles of Land Belonged to Chief of Poonjar was granted to J.D. Munro for the rent Rs. 3000 (actually nominal, for it is only 3/4 paise per acre) by The Chief of Poonjar (or H.H. the Maharaja – See: Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, Para 11). It was treated as “grant of lease” for coffee cultivation (First Poonjat Concession) in 1877 without limit of time. The tract of land was known as Anchunad and Kannan Devan Hills.

Poonjar Raja was a Janmi

Our Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, observed that the Poonjar Raja was a Janmi (landlord or proprietary interest holder) when the First Concession was granted and the whole lands have fallen within the expression ‘Janmam right‘.

On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed of ratification. By this time a company called the North Travancore Land Planting and Agricultural Society Ltd. had acquired the rights in the said land.

Surrender of rights to Travancore Sircar & Royal Proclamation of 1899

Poonjar Chief or Raja had subjugated himself to Travancore Sircar or Maharaja. Agreement dated 18.09.1899 was entered into between Rohini Thirunal Kerala Varma Raja (the then Chief of Poonjar Koyikkal) and the Travancore Government, under which the ownership of the land described in the First Poonjat Concession had been transferred to the Government of Travancore. (See: Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015). It was a surrender of certain rights of the Poonjar Chief in favour of Travancore Sircar. On 24.9.1899, a Royal Proclamation (of 1899) was made.

The Royal Proclamation made on 24.9.1899 read as under:

“Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
(2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr. J.D. Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D. Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive.
(3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf.” (Quoted in: Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218; Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)

The Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, considered the effect of this surrender, with reference of its previous judgment in Kavalappara Kottarathil Kochuni v. State of Madras, (1960 (3) SCR 887) and observed, on the materials placed before the Court, that it was difficult to resist the conclusion that the lands in dispute (with the Poonjar Chief) fall within the expression ‘Janmam right‘; and that the effect of the Royal Proclamation of 1899 was that the Sircar became the Janmi. In Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218 our Apex Court observed as under:

“It seems to us that on the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”. If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi, and the Sircar becomes a janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.“

Kannan Devan Hills (Resumption of Lands) Act, 1971

For revenue purposes, janmam lands were lands that were entered in the revenue accounts under the heads of Devaswom-vaka, Brahmamaswom-vaka and Madampimar-vaka, i.e., to say a land to be classed as Janmom land should have been recognised as such in the revenue accounts. The mere circumstance that a land belongs to a janmi does not bring it under janmom tenure and conversely the mere fact that janmom land is absolutely transferred to a non janmi does not any the less detract from its original character.

The Apex Court in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, observed that, the State grants like Kannan Devan Hills Concession and Ten square Miles Concession and Munro Lands, were treated under the heading ‘Pandaravaka Lands‘, i.e., lands belonging to the Sircar. (See: Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)

Government of Kerala, successor of the former Government of Travancore, was vested with the right, title and interest of the former Government.

The Kerala Government found that a large extent of agricultural lands in Kannan Devan Hills Village had not been converted into plantations and such lands are not required for the purpose of existing plantations. Accordingly, the Government decided to resume such lands for distribution for cultivation and purposes ancillary thereto. Consequent to this, Kannan Devan Hills (Resumption of Lands) Act, 1971 was enacted. (Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)

Constitution Bench of our Apex Court, in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218, upheld the Kannan Devan Hills (Resumption of Lands) Act.

As already explained, while perusing the nature of ‘janmam right’ it was held by our Apex Court in Kavalappara Kottarathil Kochuni v. State of Madras, 1960-3 S.C.R. 887, Subba Rao, J., as under:

“Under the definition, any janmam right in Kerala is an “estate”. A janmam right is the freehold interest in a property situated in Kerala. Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A janmam interest may, therefore, be described as “proprietary interest of a landlord in lands“, and such a janmam right is described as “estate” in the Constitution.” (Quoted in Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218)

Kerala Grants and Leases (Modification of Rights) Act, 1980

Read Blog (ClicK): Grant in Law (Plantation Lands ‘Granted’ by Erstwhile Governments in South India–Legal Effect)

Part IV

Constitution of India and Kerala Land Reforms Act

Article 31A(2) of the Constitution of India reads thus:

“In this article-
(a) the expression ‘estate ‘ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant, and in the States of Madras and Kerala any janmam right;
(b) the expression ‘rights’, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.”

1. Jenmam – Proprietary right in the soil

In K. K. Kochunni v. States of Madras and Kerala, AIR 1960 SC 1080, the Supreme Court, while dealing with Article 31A of the Constitution, said:

“Under the definition, any jenmom right in Kerala is an ‘estate’. A jenmom right is the freehold interest in a property situated in Kerala. Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A jenmom interest may, therefore be described as ‘proprietary interest of a landlord in lands‘.”
Note: ‘Freehold’ – “In common law jurisdictions such as England and Wales, Australia, Canada, and Ireland, a freehold is the common mode of ownership of real property, or land, and all immovable structures attached to such land. It is in contrast to a leasehold, in which the property reverts to the owner of the land after the lease period expires or otherwise lawfully terminates” (Wikipedia). It doesn’t mean that such lands are free from payment of tax or revenue to the Government.

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court held as under:

“It seems to us that the basic concept of the word ‘estate’ is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part”.

In Govindaru Nambooripad v. State of Kerala, 1962 Ker LT 913 : AIR 1963 Ker 86, it was observed that ‘Thanathu, Thettom, Manavaka, Brahmaswom Vaka, Devaswom Vaka, Kudijenmom, Kanom, Kanom Kudijenmom and Venpattom’ created by Jenmis must be held to be covered by the word ‘Estate’ in Art. 31A of the Constitution. It held further as under:

“20. It cannot be disputed that these Jenmis and Devaswoms had full proprietary right in the soil and that the lands in which they have ‘Jenmom rights’ are ‘Estates’ within the definition of the word in Article 31-A.”
“21. … As regards ‘jnam lands’ it was conceded that the holders had full proprietary rights in the soil. These consist of
- Pandaravaka Adima,
- Anubhogam,
- Thiruvulam,
- Danom,
- Pandaravaka Kudijenmom,
- Erayeli,
- Viruthi and
- Karam Ozhivu.
Inam lands other than Erayeli and Viruthi (Service Inams) were dealt with under S. 24 of the Revenue Settlement Proclamation of 1061 M.E. (1886 AD). Clause 7 of S. 24 provided:
- “There shall be no further interference on the part of the Government with these free holds, except such as might be necessary for the punctual realization of the quit rent payable”.
Note:
- 1. It was held in Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86 (analysing the 1040 ME (1865), Travancore Proclamation) that the provisions of the Proclamation did not confer on the tenants absolute proprietary rights in the soil.
- 2. Overruling Govindaru Nambooripad v. State of Kerala, it was held in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1; AIR 1971 Ker 168, that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a).

2. Pandarapattom lands in Cochin & Travancore – Proprietary right in the soil

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court held _{(by majority, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta; and N. Rajagopala Ayyangar, dissenting)}that Pandarappattom properties come within ‘estate’ under Article 31A of the Constitution. The Apex Court considered the proclamation issued by his Highness Sir Rama Varma Raja of Cochin on March 10, 1905. Clause 13 that rendered ‘full rights to the soil of the lands they hold’.

The Supreme Court (majority) held, with respect to Cochin Regulation, 1905 as under:

“It would thus be seen that under clause 13 the person holding lands on the Pandaravaka Verumpattom tenure is not a tenant. He is given the proprietary right in the soil itself, subject of course to the rights as to metals and minerals reserved in favour of the State, indeed, the whole scheme of the new Proclamation appears to be to change the character of the possession of the Pandaravaka Verumpattom tenure-holder from that of a tenant into that of a proprietor-holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment Into a recovery of rent. The proprietor of the land held on Verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka Verumpattom tenure-holders the holders in turn would let out the the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries. Land revenue record is required to be prepared by the Proclamation and relevant entries showing the extent of the properties belonging to the respective holders and the details about their liability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the ‘lands held by the petitioner under the Pandaravaha Verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State“.

But, N. Rajagopala Ayyangar, J., while descending, observed as under:

“In this connection I might usefully refer to a proclamation of the ruler of Travancore of 1865 (1040 M. E.) regarding Sarkar-pattom lands, with the observation that subject to variations dependent on local usages, the system of land tenure and the concepts as regards the rights of property in land were substantially similar in Travancore and Cochin. Sarkar-pattom lands were what might be termed ‘Crown lands’ of which the ruler was deemed to be the Jenmi or the landlord. Previous to the proclamation the lands were legally capable of being resumed by the ruler, though this was seldom done and the cultivators were not legally entitled to transfer their rights and where this was done the Government had the right to ignore the transaction. The fact that the cultivator was conceived of as having no proprietary interest on the land also bore adversely on the State since the State was deprived of the means of realising any arrears of revenue by bringing the holding to sale. It was to remedy this situation that the proclamation was issued and the preamble and its terms carry the impress of the impact of the ryotwari system of Madras.”

After referring the 1040 (1865) Proclamation, Ayyangar, J. said as under:

“The language employed in the proclamation is of significance. It speaks of the relinquishment or withdrawal of the right of the State and not of the conferment of a right on the ryot so as to render the ryot a grantee from the State, just in line with the Hindu Law theory of the proprietorship of the soil vesting in the occupant-cultivator.”

In Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86 (FB), in spite of the decision in Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694 (pertained to Cochin), it was held that Pandarapattom (or Pandaravaka pattom) lands in the Travancore area cannot have the protection of Article 31A of the Constitution. Analysing the 1040 ME Travancore Proclamation, it was held by the High Court as under:

“11. The provisions of the Proclamation do not, in our opinion, confer on the tenants absolute proprietary rights in the soil. There is no clause by which the Sirkar parted with all rights in favour of the tenants and in the absence of such a provision, the holders of such lands can only be treated as holding such lands on perpetual leases.”

Rev. Fr. Victor Fernandez case – Pandarapattom Confers Proprietary Rights

Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86, was overruled by the larger Bench in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1, AIR 1971 Ker 168, and it was held that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a). (See: Harrisons Malayalam Limited v. State of Kerala, 2018-2 KHC 719; 2018-2 KLT 369).

It was found in Rev. Fr. Victor Fernandez case that by the Proclamation of 1040 (1865 AD), all Sircar-pattom-lands were converted into full proprietary-lands, and rights on tenants of Pandarapattom lands had thenceforth been conferred with proprietary-rights.

In Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 Ker LT 1, AIR 1971 Ker 168, it was observed as under:

Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.:

“11. …. We have already shown how, in the face of the Proclamation of 1040, it is impossible to regard the holders of these lands as tenants in the strict sense of that term having only the right to enjoy the land and no interest in the land as such. We have also drawn attention to the fact that what they pay to the Government is, under the very terms of the Proclamation, assessment or land tax, in other words, land revenue, and not rent properly so-called. As stated in 1962 Ker LT 913 = (AIR 1963 Ker 86 FB). with reference to contemporary documents, the avowed purpose of the Proclamation of 1040 was to place pandarapattam lands on the same footing as ryotwari lands in the neighbouring province of Madras, and wo have no doubt that it succeeded in doing so. If the relations between the holder of a land and the Government are placed on the same footing as the relations between the holder of ryotwari land and the Government, it seems to us that it necessarily follows that the land is held under ryotwari settlement–it is the factual relationship and not the label that counts and no concept of legal rights is involved. ….

Per KK Mathew, J.

17……. To my mind the terms of the Proclamation leave no doubt that full proprietary interest has been conferred upon the holders of pandarapattom lands. ….Clause (2) is the pivotal clause; and it provides that the ryots holding such lands may regard them fully private, saleable and otherwise heritable and transferable property. Clause (4) guarantees the continued undisturbed enjoyment of the land so long as the appointed assessment is paid. Clause (6) makes it clear that the lands will be resumable by the State like other jenmom or private land only for public purpose and when resumed for such purposes compensation will be paid by the Sirkar not only for the improvements but also for the full market value of the property. Clause (7) provided that the rights conferred by the Proclamation would not in any way affect the right of the Sirkar to regulate land tax or to resume escheats or to confiscate the property of criminals. Clauses (6) and (7) are very significant. What are reserved to the Sirkar by Clauses (6) and (7) are not anv proprietary rights in the land. The rights which inhere in every sovereign in respect of every property within his jurisdiction like eminent domain, the right to impose or regulate tax, to resume escheats, to confiscate property of criminals, are alone reserved by those clauses. They not only do not derogate from the grant of full proprietary interest made by Clauses (1), (2) and (4), but would highlight that no proprietary rights have been reserved to the State. If the sovereign was careful to reserve to himself in respect of these lands only those rights which appertain to sovereignty and not any right which relates to dominium, that is a clear indication that no right relating to dominium was intended to be retained by the Sirkar. Even if the clauses were absent, the Sirkar would have those rights as they appertain to sovereignty and not to dominium. In other words, if by way of abundant caution the clauses reserved to the Sirkar only rights which appertain to sovereignty, there was absolutely no reason why the rights, if any, relating to dominium or ownership were not reserved, if the sovereign intended to retain any right in respect of the lands.….. I think, a holder of pandarapattom land satisfies even the orthodox definition of ownership by Austin. Austin defines the right of ownership as a–“right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration, over a determinate thing.” (See ‘Jurisprudence’ by Austin, 3rd Edn., page 817.)
19. The basic concept of ‘estate’ is that the person holding the estate should be the proprietor of the soil and should be in direct relationship with the State by paying land revenue to it except where it is remitted in whole or in part. See AIR 1962 SC 694. As I have said the pattom Proclamation conferred full proprietary rights on tenants of pandarapattom lands, and they are also in direct relation with the State by paying land revenue. Since there is no definition of the word ‘estate’ in the existing local law relating to land tenure, pandarapattom land is the local equivalent of ‘estate,’ because its attributes conform to the basic concept of the term.”

Note: Another decision (with the same parties), Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216, AIR 1973 Ker 55, was overruled in Velayudhan Vivekanandan v. Ayyappan Sadasivan, ILR 1975-1 Ker 166; 1975 KerLT 1.

1840 Travancore Proclamation and 1905 Cochin Proclamation

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court (Rajagopala Ayyankar, J. Minority) pointed out the requirement and purport of these Proclamations. It reads as under:

“The evils which the system gave rise to, the economic insecurity of the tenant and the consequent lack of incentive on his part to put his best exertion on the land and the resultant loss to the state in the shape of revenue as well as the rise of a contented peasantry were exactly parallel to the situation which faced the ruler of Travancore leading to the proclamation of 1865. It was in these circumstances that the ruler of Cochin issued a proclamation on March 10, 1905, which defined with precision the rights of the State and of the cultivator in regard to these lands …”

Ayyankar, J. (Minority) observed that there was “conferment of proprietary rights by the Cochin Proclamation of 1905″ and “relinquishment by the State under the Travancore Proclamation of 1865″.

Finally, the Majority held that by virtue of the Cochin Proclamation of 1905 the holders of the Pandaravaka-verumpattom lands in Cochin were holding the property as “estate” within the meaning of Article 31A of the Constitution, and that the challenge thereon (to the Kerala Agrarian Relations Act, 1961) was not sustainable.

Kesavananda Bharati Case

29^th Amendment of the Constitution of India put Kerala Land Reforms Amendment Act, 1969 and Kerala Land Reforms (Amendment) Act, 1971, in IX^th schedule. It was argued in Kesavananda Bharati case, known is as ‘Fundamental Rights Case’ [His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala: AIR 1973 SC 1461] that the amendments, that took away or abridged ‘fundamental rights’, were invalid.

Kesavananda Bharati case is one of the most important cases taken up by the Supreme Court of India. Largest ever bench of the Supreme Court (13 judges) considered it. Kesavananda credits the longest ever hearing in the history of the Supreme Court; it took 66 days, spread over to 5 months.

Points considered

The 13 judge bench was constituted to consider whether Golak Nath [IC Golak Nath v. State of Punjab: AIR 1967 SC 1643] was correctly decided. It had been held in Golak Nath, by an 11 judge bench, that the Parliament could not amend fundamental rights guaranteed in Part III of the Constitution.

Rival contentions:

Nani A Palkhivala led arguments for the petitioners. He emphasized:

Article 368 (Provision for amendment of the Constitution) does not override Article 13(2). The power of the Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368 which only deals with procedure.
The word ‘amendment’ has ‘limited’ meaning (something can be modified but without change of core) and there are ‘inherentand implied limitations’ to abrogate or repeal the Constitution (though not express; inherent in Constitution itself) for altering the essential features or basic structure of Constitution. It was explained by Palkhivala as under: “The principle of inherent and implied limitations means: deducing that is left unsaid from what is said, and perceiving what is implicit in the express provision and scheme of the instrument”.
Palkhivala argued against unlimited amending power elucidating the essential features of our constitution, which included sovereignty, the republican form of government, the federal structure and the fundamental rights (as a whole). They were unchangeable. Founding fathers of the Constitution considered fundamental rights as ‘fundamental’.
The Constitution is supreme. The Parliament is a creature of Constitution. Therefore, the Parliament cannot increase the power conferred to it or destroy essential/basic feature or basic structure of the Constitution. That is, there is implied limitation for the Parliament.
The Preamble of the Constitution limits ‘unlimited power’ of the Parliament.
If Parliament has unlimited power, it can make judiciary and executive completely subordinate or take over their powers.
Ultimate power is vested with ‘We, the people’.
The Constitution gives the Indian citizen freedoms which are to subsist for ever. If Article 31C is valid, Parliament and State Legislatures, and not the Constitution, will determine how much freedom is good for the citizens.

H.M. Seervai (for State of Kerala) and Niren De (Attorney General) stood for unlimited amending power. They stressed the following:

Unless there are no express words, or compelling implication from the existing provisions, for limiting extent of amendment, then there will be no implied limitation.
Government is duty bound to give effect to Directive principles (Part IV of the Constitution) and to enact ‘Laws’ to achieve those objectives.
The acceptance of concepts like ‘implied limitation’, which have no definite contours, would introduce uncertainty and vagueness.
No test can be applied to essential or non-essential feature.
The constituent assembly made no distinction between essential and non-essential features.
None in the constituent assembly said – fundamental rights could not be amended.
The expression ‘an amendment of this Constitution’ in Article 368 meant amendment of each and every provisions of Constitution. Article 368 not only prescribes the procedure but also gives the power of amendment
If Constitution-makers intended that the fundamental rights should override Article 368, it is reasonable to assume that they would have made an express provision to that effect. The Preamble cannot control the unambiguous language of the articles of the Constitution. The Constitution of India is one of the lengthiest Constitutions, if not the lengthiest of the world.
The expression ‘fundamental’ does not lift the fundamental rights above Constitution itself.
There is distinction between Constituent power and legislative power. Article 13(2) pertains to legislative power alone.
The Constitution did not envisage a constituent assembly, in future, to abridge or change fundamental rights.

Palkhivala contended that wide power to amend the Constitution would result ‘in liquidation of Constitution’. Attorney General (Niren De) retorted that ‘unambiguous meaning of amendment’ should not be destroyed ‘to nurse the theory of implied limitation’.

Final outcome of Kesavananda Bharati

It is a never ending controversy.

13 Judges delivered 11 judgments. (There were two ‘common judgments’.) In the paper titled “View by the Majority” signed by Chief Justice (S.M.Sikri) and other 8 Judges (9 only) contained six points. It stated:

(1) Golak Nath case is overruled.
(2) Article 368 does not enable Parliament to alter the basic structure or frame work of the Constitution.
(3) The Constitution (Twenty-fourth Amendment) Act, 1971 is valid. (It was passed to get over Golek Nath.)
(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. (It pertained to ‘right to property’. Art. 31 & 19(1)(f) and Added Art. 31C.)
(5) The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. (New Article 31C provided: [first part] the laws which give effect to Directive Principles will not be void on the allegation that it is inconsistent with certain fundamental rights.) The second part, namely, “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy” is invalid.
(6) The Constitution (29^th Amendment) Act, 1971 is valid. (It put Kerala Acts in the 9^th Schedule.)
The Constitution bench will determine the validity of the Constitution (Twenty-sixth amendment) Act, 1971 in accordance with law. (It related to abolition of privy purses and privileges of princes.)

(1) Judgment at a glance

Unanimous decision

Article 368 is independent from, and not controlled by, Article 13(2).
Golak Nath is overruled.
24^th Constitutional Amendment Act is valid.

6 Judges accepted argument of Palkhiwala

Following Judges accepted the argument of Palkhiwala and held: (entire) fundamental rights (as such) were essential features of the Constitution and therefore there was implied limitation to abrogate or repeal them (though they could be abridged).

S.M. Sikri, CJ
J.M. Shelat
A.M. Grover
K.S. Hegde
A.K. Mukherjea
P. Jaganmohan Reddi

6 Judges accepted argument of Government

Following Judges accepted argument of Government in this regard. That is, there was unlimited power of amendment – even fundamental rights also could be repealed.

A.N. Ray
D.G. Palekar
K.K. Mathew
M.H. Beg
S.N. Dwivedi
Y.V. Chandrachud

Khanna, J. took ‘Midway’ [as qualified by Palkhivala in (1974) 4 SCC Journal 57]

Khanna, J. rejected argument on ‘essential features’ and ‘implied limitation’ & proceeded on ‘basic structure doctrine’ alone. He held: power of amendment extends to all Articles including fundamental rights; and only restriction is that the basic structure of the Constitution should not be changed.

No essential features; No implied limitation

All Sikri (CJ) – led 6 Judges held: Fundamental rights could not be abrogated, (though they could be abridged, by amendment).
CJ, Sikri led judges (except Jaganmohan, J) accepted argument of Adv. Palkhivala that the fundamental rights are essential features of the Constitution and that there was implied limitation to change or amend the fundamental rights.
J. Ray led 6 judges were of the definite opinion that there was no limitation at all to amend the Constitution and therefore fundamental rights also could be ‘amended’ – it could be abrogated or repealed.
Khanna J discarded both ‘essential features’ theory and ‘implied limitation’ theory; and held: fundamental rights also could be ‘added, altered or repealed’.
Therefore, majority (J. Ray led judges + Khanna, J.) decision emerged was that: There was “no implied limitation” to amend the Constitution; that is, even the fundamental rights could be ‘repealed’

Khanna J. ‘Tipped the scales’

Kesavananda Bharati is fundamental right’s case. The crux was whether fundamental rights could be ‘amended’. CJ. Sikri-led six judges stood for limited power of the Parliament to amend the Constitution. They held – fundamental rights could not be abrogated or repealed. Broadly speaking, J. Khanna joined with them for he held: Parliament has no unlimited power to amend the Constitution.

J. Khanna also joined six J. Ray-led judges when he held – fundamental rights also could be repealed. Therefore the majority decision turned out was that fundamental rights are also subject to ‘amendment power’ of the Parliament.

Finally the ‘mid-way’ stance of J. Khanna ‘tipped the scales’ in favour of CJ. Sikri-led-judges which paved way to emerge basic structure doctrine as the ‘essential feature’ of Kesavananda.

Final outcome – ‘Basic Structure Doctrine’: But, No Common Ratio?

Khanna, J. asserted: Art. 368 cannot be “so construed as to embody the death-wish of the Constitution or provide sanction for what may perhaps be called lawful hara-kiri”.
It is clear that Khanna, J. propounded ‘basic structure’ doctrine not in the way that was upheld by Sikri (CJ.) led judges. It was not in the way exactly argued by Palkhivala also. For discarding the ‘implied limitation’ theory and ‘essential features’ theory (these theories were accepted by Sikri-led judges), Khanna, J. accepted the arguments of Seervai and Attorney General in this regard. But, finally, by the ‘View by the Majority’ signed by nine judges, the view (minority?) of Khanna, J. (ie. basic structure doctrine) was emerged as the ‘ratio’ of the case.
Seervai in his treatise ‘Constitutional Law of India’ stated as under, on page 1626: “If the ‘fundamental rights case’ is stood by itself, it was possible to argue that the judgment of 7 Judges [Sikri (CJ) led judges + Khanna, J.] as to the basic structure disclosed no common ratio”.

Even CJ. Sikri-led-judges ‘diluted’ fundamental rights

CJ. Sikri led (6) judges (six only) held definitely that fundamental rights were not liable to be abrogated by amendment; and it is very important to note that even these 6 judges held that the fundamental rights were subject to reasonable abridgement, in the public interest; and the power of ‘amendment’ reached every part and every article of the Constitution, provided the basic foundation or structure remained the same. All these judges (also) varied from Golak Nath which unconditionally held – fundamental rights cannot be varied/ amended.

Did Khanna J. hold every ‘fundamental right’ was part of basic structure?

Justice Khanna held the following in his Judgment: “Subject to the retention of the basic structure or frame work of the Constitution, I have no doubt (i) that the power of amendment is plenary and (ii) would include within itself the power to add, alter or repeal the various articles including those relating to fundamental rights as well as which may be said to relate to essential features”.

Divergent views as to Judgment of Khanna, J.:

Khanna, J. did not hold– fundamental rights were part of basic structure. Seervai stated as under in ‘Constitutional Law of India’ (Page 1625) – “His (Khanna, J.) Judgment was capable of being read to mean that according to him fundamental rights (as such) were not a part of the basic structure of our Constitution and it was so read by Chandrachud, J. in the Election case (Indira Nehru Gandhi v. Raj Narayan)”. (The idea conveyed is that, by ‘basic structure’ it brought-in broad aspects like ‘democracy, sovereignty, federalism’ etc. and it is not confined to any specific Part or Article.)
Khanna J. held– fundamental rights might be part of basic structure. Bhagawati, J., in Minerva Mills case [AIR 1980 SC 1789], pointed out that Khanna, J. did not hold that fundamental rights (as such) were not a part of the basic structure. Bhagawati, J. observed: “The very fact that Khanna, J. proceeded to consider this question (whether right to property, appertained to basic structure) shows beyond doubt that he did not hold that fundamental rights (as such) were not part of the basic structure; but so far as other fundamental rights were concerned, he left the question open”.
Khanna J. held – fundamental rights were part of basic structure. Khanna, J. himself, also, had ‘explained’ in Election Case (Indira Nehru Gandhi v. Raj Narayanan, AIR 1975 SC 2299) as under:
- “It is difficult to read anything in my judgment to justify the conclusion that fundamental rights (as such) were not part of the basic structure”.

What was the dictum on ‘right to property’?

The following two majority findings in Kesavananda are important:

The right of the Parliament to amend the Constitution is limited. There are certain essential features or basic structure which cannot be discarded. (Sikri (CJ) led judges + Khanna J)
Fundamental rights are also open to ‘amendment’. (J. Ray led judges + Khanna J)

In the light of the aforesaid two majority findings the following decision of Khanna, J. (single Judge) emerges as a declaration/ dictum (having force of law under Art. 141 of the Constitution) of Kesavananda on the right to property: “Right to property in Art. 19(1)(f) does not form part of the basic structure”(so that it cannot be amended).

For the finding of Khanna, J. that right to property did not form part of the basic structure (though a fundamental right) the Constitutional validity of the Kerala Land Reforms (Amendment) Act, 1971 stood upheld.

Conclusion

The Kerala Land Reforms Act, 1963 was not a sporadic one. There were several pre-independent enactments that paved the way to the Act. The Kerala Agrarian Relations Bill, 1957 of the ‘Communist Government’ was a post-independent land-mark mile-stone in that line. The courts in India, especially the Supreme Court of India, supported the wisdom of the Parliament in Land Reform measures observing that they were in concordance with the Constitution of India.

Land Tenures, and History of Land Derivation, in Kerala

Created: 07 Jul 2024 at 23:29

Classification of Lands in Travancore

Travancore Land-Tenures

Land-Classification in Cochin

Ryotwari System in Malabar – Lease by Government, under Pattas

Part I

Ancient History of Land of Kerala

Part II

Concept of “Janmam” on Lands, and Classification of Lands, in Travancore

Key Decisions on Grant

Land-Classification in Cochin

Malabar –‘Jenmi’, ‘Jenmom’ and ‘Ryotwari System’

Part III

Land Reform Measures that Shaped Kerala

Constitution of India and Kerala Land Reforms Act

Land Tenures, and History of Land Derivation, in Kerala

Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy

Relevant Provisions of Kerala Land Reforms Act – on Purchase Certificate, Plantation Exemption & Ceiling Area – in a Nutshell