Snippet #78

Jojy George Koduvath

PART I

Grant – Introduction

What is ‘Grant’?

‘Grant’ is a generic term to indicate ‘transfer’ of property (e.g., sale, lease, gift etc.).
But, in property-law, ‘grant’ does not convey the idea as to an ‘absolute transfer’, especially when it is used in place of sale, gift etc.; and it manifests a concession, permission or settlement (with conditions).
- Thus, when a ‘grant’ is made, some interest is retained by the grantor; and it arises from a contract, express or implied, with conditions.
The word ‘grant’ is also used to convey the idea as to a donation, aid, easement, dedication to trust etc.
‘Grant’ is also technical term to denote conditional-transfer of lands by sovereign; and, it is more than a licence (which does not create an interest) and less than an outright and unconditional ‘transfer’ of property.
It is used to differentiate from a ‘sale’ – sale being ‘an absolute transfer of all rights in the property sold; and no rights are left in transferor’ (Bai Kanku v. Victorbhai Kanjibhai Khristi, AIR 1969 Guj 239; Basanti Mohanty v. Brahmanand Das, AIR 1996 Ori 86; Bhaskaran v. Raghavan, 2021-3 Ker LJ 498).

Characteristics of ‘Grant‘

Usually it expresses a grant by deed.
Generally it imports a contract with conditions, express or implied.
Ordinarily it will be without consideration.
Conventionally it is creation of an ‘interest’ in property (in case of easement, no interest is created; but only a right of enjoyment).
Mostly irrevocable, as long as the conditions are fulfilled.
Usually conditions are fixed in grant to limit the period of grant.

‘Grant’ – Collins Dictionary of Law

Inferior interest, out of an interest retained by the grantor, e.g. the grant of a lease of land by the person holding the freehold.

‘Grant’ – Earl Jowtt’s Dictionary of English Law

In the widest sense ‘grant’ may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown; e.g. grants of pensions, patents, charters, franchise (Quoted in Mohsin Ali v. State of MP, 1975-2 SCC 122).

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’, as under:

• “…. A contract is an agreement which creates an obligation or a right in Personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth. An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

Black’s Law Dictionary

Black’s Law Dictionary gives the following meaning to “Grant” –

“(i) to bestow; to confer upon someone other than the person of entity which makes the grant;
(ii) to give or present as a right or privilege. (Quoted in: Hajee SVM Mohamed v. The Govt. of TN, 1997-3 SCC 466)

An Easement or Licence is the (express or implied) ‘Grant of a Right’

It is pointed out in Hajee S.V.M. Mohamed v. The Govt. of TN, 1997-3 SCC 466, that the definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of a right made by the grantor and that Sec. 53 and Sec. 54 of the said Act also refer unequivocally to the grant of licence.

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PART II

The Government Grants Act, 1895

The Government Grants Act, 1895 (formerly, before 1950, known as ‘Crown Grants Act, 1895’), had been enacted with a view to secure the Govt. lands from potential or protracted legal claims. It is a small Act with 3 sections. The salient features of the Act are the following-

1. Transfer of Property Act, 1882, does not to apply to Government grants.
2. It applies to “any grant or other transfer of land or of any interest therein“.
3. It applies to grants and other transfers “heretofore made or hereafter to be made by or on behalf of the Government“.

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.

Note:

Grants Act apply to all States except the “Part B States”. Under States Reorganisation Act, 1956, Part B states are Patiala and East Punjab States Union (PEPSU), Hyderabad, Jammu and Kashmir, Travancore-Cochin. Madhya Bharat, Mysore, Rajasthan, and Saurashtra.

By the advent of this Act, (i) no statutory notice – under Sec. 106 TP Act – was necessary for evicting tenants from Govt. lands; (ii) no bar to apply the provisions in Sec. 111 (g) of the TP Act to invoke forfeiture provision (for claiming title or violating any provision in the agreement) with respect to agricultural tenancy lands owned by Govt.

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 Section 2 of this Act also, Transfer of Property Act and Tenancy Acts did not to apply to lands given as grant by the Government.

Efficacy of Grants Act After Independence

Ever so many decisions have come from various courts in India, including the Supreme Court, accepting the efficacy of the Grants Act. In Union of India v. S. Narasimhulu Naidu, 2021-10 SCALE 135, 2021-7 Mad LJ 58, our Apex Court considered effect of the unregistered transfer of land by the State of Andhra Pradesh to the Union, made in 1956; and held as under:

“Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895.”

Grants Act (Special Statute) Prevails Over Transfer of Property Act

In Hajee SVM Mohamed Jamaludeen Bros and Co. v. Govt. of TN, AIR 1997 SC 1368, the Supreme Court has held as under:

“9. The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the government to enforce any condition or limitation or restriction in all types of grants made by the government to any person. In other words, the rights, privileges and obligations of any grantee of the government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law.
14. It is true that the word ‘grant’ is not defined in the Grants Act but it is quite evident that the word has been used in the Act is its etimological sense and, therefore, it should get its widest import. In Black’s Law Dictionary, the word “Grant” is shown to have the meanings (i) to bestow; to confer upon someone other than the person or entity which makes the grant; (ii) to give or present as a right or privilege. (Fifth Edn., Page 629).
15. The definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of a right made by the grantor. Section 53 and Section 54 of the said Act also refer unequivocally to the grant of licence. Thus without a ‘grant’ in the general sense no licence can be created.
16. In Mohsin Ali Vs. State of MP, 1975 2 SCC 122 : AIR 1975 SC 1518, this Court said that ‘in the widest sense grant may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown e.g. grants of pensions, patents, charters, franchise (See Earl Jowtt’s Dictionary of English Law).’
17. The word ‘grant’ used in the Grants Act could, therefore envelop within it everything granted by the government to any person. Thus, the licence which appellant obtained by virtue of the agreement would undoubtedly fall within the ambit of ‘grant’ envisaged in the Grants Act. “

In Pradeep Oil Corporation v. Municipal Corporation of Delhi, AIR 2011 SC 1869, the Supreme Court has held as under:

“17. In the present case grant has been made by the President of India in terms of Section 2 of the Government Grants Act, 1895 and the Transfer of Property Act, 1882 may have little bearing in the instant case. The former, i.e. the Government Grants Act, 1895 being a special statute would prevail over the general statute, i.e. the Transfer of Property Act, 1882. Accordingly, the rights and obligations of the parties would be governed by the terms of the provisions of Government Grants Act, 1895 whereunder the Government is entitled to impose limitations and restrictions upon the grants and other transfer made by it or under its authority.”

In State of Madras v.s T.M. Oosman Haji And Co., AIR 1970 Mad 27, it is held as under:

“The Government Grants Act was passed not only to settle the doubts which had arisen as to the effect of the Transfer of Property Act, 1882, but also, to remove any doubts with regard to the cower of the Government to impose limitations and restrictions upon grants and other transfers of lands made by it, or under its authority.
Section 2 of the Government Grants Act deals with exemptions as regards the Crown Grants from, the provisions of the Transfer of Property Act, 1882, and thus it gives effect to the first object mentioned in the preamble.
Section 3 of the Act provides that Crown Grants should take effect according to their tenor, notwithstanding any law to the contrary.”

In State of UP v. Zahoor Ahmad, AIR 1973 SC 2520, the Supreme Court has observed as under:

“16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of sections 2 and 3 of the Government Grants is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.”

In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court has held that when a perpetual lease granted by the Government for 99 years was not renewed after expiry, the relationship as tenant and landlord stood terminated and party concerned is not entitled for declaration that he is land-holder and after termination of lease, his possession is of trespasser. It was observed as under:

“3…….We find no force in the contention. It is an admitted position that renewal was not granted. Thereby, the previous lease stood expired and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government; thus thereafter, he continued to be in possession as a trespasser. It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the conduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is not a case of taking possession without due process of law. The possession only continues to a facet of the facts. Apart from that there is no other documentary evidence on the basis of which it could be concluded that the title of the Government is defeated by acceptance of the rent or by requisition of the property by mistaken act on the part of the Government.

Lease conditioned by Payment of Rent – Cannot be Irrevocable Grant

Our Apex Court observed in State of Madhya Pradesh v. Binod Mills Co Pvt. Ltd., 2019, (Rohinton Fali Nariman, Sanjay Kishan Kaul, JJ.) as under:

“10. Having heard learned counsel on behalf of the parties, we are of the view that neither the judgment of the Single Judge nor the judgment of the Division Bench can be sustained. It is clear on a reading of the 1912 document as well as the Lease-Acceptance deed that only a lease was entered into of the aforesaid land by the erstwhile Gwalior State in favour of the Binod Mills Co. Ltd., which lease was conditioned by payment of rent and by the condition that the Mill must continue and not cease to exist. In this view of the matter, it cannot be said that any irrevocable Grant had been made by the erstwhile Gwalior State in favour of the Binod Mills Co. Ltd. Further Section 182 of the M.P. Land Revenue Code, 1959, states as follows:
“182. Rights and liabilities of a Government lessee.- (1) A Government lessee shall, subject to any express provisions in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the Government Grants Act, 1895 (XV of 1895).
(2) A Government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely: –
.(i) that he has failed to pay the rent for a period of three months from the date on which it became due; or
(ii) that he has used such land for purposes other than for which it was granted; or
(iii) that the term of his lease has expired; or
(iv) that he has contravened any of the terms and conditions of the grant:
Provided that no order for ejectment of a Government lessee under this sub-section shall be passed without giving him an opportunity of being heard in his defence.”
12. This provision again makes it clear that a land held under a Government Grant can be held as a Government lessee only if no ground for ejectment is made out under sub- section (2). Sub-section (2) has grounds for ejectment, apart from user of land for purposes other than for which it was granted. Failure to pay the rent for a period of three months from the date on which it became due, as also that any other terms and conditions of the grant had been contravened are also grounds for ejectment. It is, thus clear that even if the Mill was running, the Binod Mills Co. Ltd. could have been ejected if they failed to pay rent for a period of three months from the date on which such rent became due. This would show that this is a case of a Government lease and not an irrevocable Grant, as has wrongly been held by both the Single Judge and the Division Bench.”

Grants Act – Not required to Follow any other Procedure or Law

In Azim Ahmad Kazmi v. State of UP, 2012-7 SCC 278, the Supreme Court, relying upon the Grants Act held that when a special procedure is prescribed for resumption of land under the lease deed, the State was not required to follow any other procedure or law.

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.

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 – 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.”

The Act required the Grantees and lessees alsoto pay rent to the Government. The Collector was authorised to revise assessment and rent. The Constitutional validity of this Act was upheld in Majeed v. State of Kerala, 2006(1) KerLT 19.

PART III

Grant – Termination

Effect of Grant that Allows Unilateral Termination

The decision in Hajee SVM Mohamed v. The Govt. of TN, 1997(3) SCC 466, concluded as under:

“The result is that appellant cannot bypass clause 7 of the instrument under which he obtained the right to collect “chank shells” . The said clause adequately empowers the government to unilaterally terminate the arrangement or revoke the grant without assigning any reason whatsoever. The said clause is valid and could be enforced by the government at any time and hence the action of the government in rescinding the contract was valid. Appellant is not therefore, entitled to damages.”

99 Years Lease Not Renewed – Possession of Land-Holder is that of a Trespasser

In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court held as under:

“3…. It is an admitted position that renewal was not granted. Thereby, the previous lease stood expired and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government; thus thereafter, he continued to be in possession as a trespasser.”

In Tata Steel Limited v. State of Jharkhand , Chelameswar, J., 2015-10 SCALE 35, the Supreme Court after considering the Grants Act and Hajee SVM Mohamed Jamaludeen v. Government of Tamil Nadu, held as under:

“19….. Section 2 of the Government Grants Act declares that “nothing contained in the Transfer of Property Act, 1882 applies to any grant or other transfer of land or any interest therein” made by or on behalf of the Government either prior to or after the commencement of the said Act. In other words, when Government transfers land or any interest therein to any person, such a transfer is not governed by the Transfer of Property Act, 1882. The rights and obligations flowing from the transfer of either a piece of land or an interest therein by the Government cannot be determined on the basis of the rights and obligations specified under the Transfer of Property Act, 1882. They are to be ascertained only from the tenor of the document made by the Government evidencing such a transfer. .. ..”

PART III

Govt. Grant – Land Continues to be Govt. Lands

A Planter under a Grant from Government is not a Jenmi

Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86,
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan Hills Produce Co., AIR 1998 Ker 267

During second half of the 19^th century in erstwhile Kingdoms in South India gave very large extent of Government lands, on “grant” to various persons (mostly foreigners) or institutions for putting up plantation.

The lands granted by the 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.-

Acceptance of Rent- Not recognition of Title; Right Not Stand Confirmed by Govt.

In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court held further as under:

“It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the conduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is not a case of taking possession without due process of law. The possession only continues to a facet of the facts. Apart from that there is no other documentary evidence on the basis of which it could be concluded that the title of the Government is defeated by acceptance of the rent or by requisition of the property by mistaken act on the part of the Government.”
See also: R. Hanumaiah v. Secretary to Govt. of Karnataka, 2010 -5 SCC 203.

Rules under which Travancore Govt. issued Grants

The Rules included –

i. Rules for the sale of Waste Land on the Travancore Hills (for Coffee cultivation), 1865.
ii. Rules for the grant of grass lands to Coffee estates, 1877.
iii . Rules for the sale of Waste Lands for Coffee or Tea cultivation, 1913.
iv. Rules for the sale of Government lands on the Travancore Hills for Coffee or Tea cultivation, 1923.

Grant of Reserved Forest Land

Sec. 23 of the Indian Forest Act, 1927, reads as under:

23. No right acquired over reserved forest, except as here provided – No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.

Corresponding provision in the Kerala Forest Act, 1961 is Section 22. It reads as follows –

“22. No right acquired over Reserved Forests except as herein provided –
No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or succession from such person:
Provided that no patta shall, without the previous sanction of the Government be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void.”

Referring Sec. 22 of the Kerala Forest Act, 1961, it is held in Joonktolle Tea And Industries Ltd. v. State of Kerala, Feb. 28, 2020, it is held by the Kerala High Court as under:

“11. Though the learned counsel for the petitioner contends that there is no transfer of interest in the property and that all that has happened is an amalgamation of the companies, a plain reading of the order of the Calcutta High Court would make it clear that there has been a takeover of the company by the present petitioner with all its assets and liabilities. Such an exercise can only be a transfer of the rights and assets as vested in the transferee company. If that be so, the contention raised by the learned Special Government Pleader that such an exercise is not possible in view of the provisions of Section 2 of the Forest (Conservation) Act and Section 22 of the Kerala Forest Act appears to be well founded. In Sunil Kumar v. Divisional Forest Officer [2000(2) KLT SN 7] this Court held that lease of a portion of reserve forest would be impermissible without the prior permission of the Central Government under the Forest (Conservation) Act, 1980. A Division Bench of this Court in State of Kerala and others v. New World Investment (P) Ltd. and others [2015 KHC 7103], considering a case of reserve forest land leased out by the erstwhile Cochin Government held that any further transfer by way of sale or lease or otherwise by the original lessee would be impermissible in view of the clear provisions of the statutes. Though the learned Senior Counsel attempts to show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the ‘acquisition of rights of any nature’ without a grant or contract on writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted.”

What is ‘Patta’?

Patta is a Certificate or Document issued by the Government (i) to tenants/ grantees of Govt. property, for cultivation, residence etc., and (ii) to persons to whom ownership is conferred upon Govt. property.

‘Patta’ was originally a word connected to land-lease. In Revenue documents (‘record of rights’) of various States in India , the lessee is referred to as patta-dhar. Several enactments also refer patta as lease-document.

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)

Important Decisions on Grant

Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301	Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272	Company did not acquire absolute proprietary rights over the Concession Area (on grant deeds)
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

Our Apex Court considered the effect of “grant” by the Erstwhile Governments, in the following decisions. The importance of conditional transfer that restrict interest in the property (contra-distinct to absolute transfer) is emphasised in these rulings.

1. Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
3. Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
4. Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86
5. Majeed v. State of Kerala, (2006) 1 KerLT 19

1. Kannan Devan Hills Produce 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. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.

Points came for consideration were the following:

1. 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.
2. 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.)

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’.

The position taken by the State was –

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.
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 (Travancore) 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.
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 … Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer … be immediately made known to the Sircar….”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, ….”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams …. fifty yards …. Similarly … preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”

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 held that it was difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right” vested with Sircar.

The Apex Court further found –

The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands. “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, i.e. lands belonging to the Sircar.
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.

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 vs State Of Kerala – AIR 1970 Ker 21

Travancore Regulation II of 1040 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 pay ment 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.”

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 216).

It was held in Rev. Fr. Victor Fernandez v. Albert Fernandez that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a).

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 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).”

The High Court rejected the Writ Petition recording as under:

“Except the liability to pay seigniorage, nothing remains to be resolved in this Writ Petition. Necessarily, the aforesaid finding shall result in dismissal of the Writ Petition.”

PART IV

Forfeiture on Claim of Ownership By ‘Grantee’

There is no specific provision for forfeiture of grant for claiming ‘title as owner’, by grantee (similar to the forfeiture of tenancy for claiming ‘ownership’ by a tenant under Sec. 111(g) of the TP Act).

Will claim of ownership (over the granted-property) by grantee amount to forfeiture?

The answer is – Yes. Following are the reasons:

1. Applying the Principles of ‘Forfeiture of Tenancy’ it being on principles on justice, equity and good conscience. The right of forfeiture (for claiming title as owner, by tenant, under Sec. 111(g), TP Act) is a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Rattan Lal v. Vardesh Chander AIR 1976 SC 588).
2. Analogy to Holding-over in Agricultural lease. The right of ‘holding over’ on termination of lease (if lessor accept rent even after termination of the lease period) is provided under Sec. 116 of the TP Act. Though Sec. 117 of the TP Act exempts ‘leases for agricultural purposes’ (from the whole Chapter), it is pointed out in a good number of decisions that the principles thereof (holding over) would apply to agricultural leases also, if no express prohibition, for it contains the principles of justice, equity and good conscience. (See: Amrit Lal v. Mamleshwar, AIR 1973 Del. 75.)
3. Analogy to Forfeiture (itself) in Agricultural lease. Agricultural leases, being specifically exempted in Sec. 117 (it may be argued), the principles on justice, equity and good conscience may not apply to them as regards forfeiture (under Sec. 111). But, the principles thereon definitely apply to grants, for it is not governed by the TP Act (See: Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)

Right of Forfeiture is a right arose in Common Law

Section 111, Transfer of Property Act, 1882 says as to forfeiture as to lease. It being based on the common law principles as to justice, equity and good conscience, the principles can be applied to ‘grants’ also; for, (i) the provisions of the Transfer of Property Act are not applicable to ‘grants’ and (ii) no provision of law (as regards grant) stands contrary these principles (Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).

Section 111, Transfer of Property Act reads as under:

111. Determination of lease – A lease of immoveable property determines—
(a) … to … (f)
(g) by forfeiture; that is to say,
- (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
- (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
- (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event;
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) …

Sec.117 of the Transfer of Proper Act provides as follows:

“117. Exemption of leases for agricultural purposes – None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.”

The right of forfeiture (for claiming title as owner, by tenant) being a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Ratan Lal v. Vardesh Chander AIR 1976 SC 588), it can be applied in “agricultural leases” also, if no express prohibition.

KM Joseph, J. held in Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730 (when he dealt with Sec. 116) as under:

“Whether the principle of Sec. 116 of the Transfer of Property Act will apply in regard to agricultural lease in view of Sec.117 Act ? …
… But there we may notice that the principle of Sec. 116 would apply even to agricultural leases on the basis of it embodying principles of equity, justice and good conscience. In this connection we may refer to a Bench decision of the Delhi High Court in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75).”

The relevant passage in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75) reads as under:

“16. Shri Bindra placed reliance on Section 117 of the Transfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Act. In Anantmal v. Lala, AIR 1964 Raj 88, it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu, AIR 1955 Mad 206, it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable to the new situation. Therefore, clause 9 must be held to be one of the terms of the tenancy by holding over. The tenancy must be held to be one subject to the covenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in
- Krishna Shetti v. Gilbert Pinto, 2nd 42 Mad 654 = (AIR 1919 Mad 12),
- Gangamma v. Phommakka, (1910) 33 Mad 253,
- Mt. Kesarbai v. Rajabhau Sadasheo Rao, AIR 1944 Nag 94,
- Nanjappa Goundan v. Rangaswami Gounda, AIR 1940 Mad 410,
- Moore v. Makhan Singh, Air 1919 Pat 254,
- Eayo George v. Kacki Muthaliyar, AIR 1953 Trav-Co 299,
- Bainani Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co., and
- Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)”

Should Notice Similar to S. 111(g) Necessarily be Issued to Grantees

“Notice in writing to the lessee of his intention to determine the lease” is essential under Sec. 111(g) (on their claiming title). Whether it is required to be issued to (i) agricultural tenants and (ii) grantees on forfeiture of tenancy/grant (on their claiming title)?

The answer is, No.

The potential argument in favour ‘notice in writing is essential’ is the following –

The notice in writing under Sec. 111(g) of the TP Act embodies a principle of justice, equity and good conscience and therefore there can be no forfeiture unless notice in writing is given to (i) agricultural tenants and (ii) grantees though the statutory provisions of the Transfer of Property Act are not made applicable to such transactions.

But, the following are pointed out (in various decisions) in support of the view that no written notice is needed in cases of (i) agricultural tenants and (ii) grantees –

This provision was introduced by 1929 Amendment only.
This provision was not in force in English law.
Institution of suit itself is a notice to (i) agricultural tenants, (ii) grantees, etc.
It is not equitable to argue that a tenant or grantee, who wilfully forfeited the transaction, is entitled for a notice, on principles of equity.

Plantation activity is not a simple “agriculture” activity

There are ever so many decisions of our courts saying that that plantation activity is a business activity and it is not simple “agriculture” activity (that falls under Sec. 117 TP Act). See:

AIR 2001 SC 2672,
2016(8) JT 287; 2016 (7) SCALE 4,
2018(1) Ker LT 84,
2016(3) Ker LT 592,
1999(3) Ker LT 300.

Grant in Property Law

Created: 07 Jul 2024 at 23:29