Wild Landscape

Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership on Tenants?

Created: 07 Jul 2024 at 23:29

Or, Whether it Stands for Pattom/Tenancy Right alone?

Saji Koduvath, Advocate, Kottayam.

Abstract

  • Does ‘Pandarappattom’ mark Full-Ownership? If so, from which year?
    • Answer: Yes; from 1040 ME (1865 AD) .
  • In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Constitution Bench of Supreme Court held that Pandarappattom properties in the erstwhile Cochin State come within ‘estate’* under Article 31A(2)(a) of the Constitution.
    • * Estate denotes property ownership.
  • Five-Judge-Bench in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216: AIR 1971 Ker 168, held that Pandarapattom land in the Travancore area of the Kerala State satisfied even the orthodox definition of ‘ownership’ by Austin and was ‘estate’ within the meaning of Article 31A(2)(a) of the Constitution.

Introduction

Origin of Land-Tenure – ‘Pandaravaka’

Erstwhile Kingdom of Travancore, situated in southern part of Kerala was ruled by Marthandavarma, the powerful King, from 1729 to 1758. He was successful in bringing all people and properties of Travancore under his administration; and collected tax from all lands except those that were expressly exempted.

Major portion of the cultivable lands, other than the land owned by the Sircar, were under the Devaswoms or temples (Devaswom lands), and the Brahmin Janmies (Brahmaswom lands). Brahmins or their families were the administrators (called ‘Ooralers’) of the temples.  

The Brahmins and prominent Nairs were the territorial lords. They 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.

Travancore – Padmanabha Swamy Temple and ‘Pandara Vaka’ Lands

The King of Travancore, Marthandavarma, placed himself as the servant of the principal deity of the kingdom, Sree Padmanabha adorned the Padmanabha Swamy Temple at Thiruvanamthapuram. 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.

Revenue Settlement of Travancore in 1910

The survey and settlement of Travancore State had been commenced in 1885 during the reign of Sri. Moolam Thirunal; and was finalised in 1910. In the Settlement Register the Sircar lands given to cultivators on various tenures were termed as Pandaravaka lands. The Settlement Register of 1910 is taken as the basic record of land related matters.

Travancore – ‘Jenmi’, ‘Jenmom

Padmanabharu Govindaru Namboodiripad v. State of Kerala (FB) AIR  1963 Ker 86, observed as under:

  • “Coming  to the second category of lands, viz. , Jenmon 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 con-quered 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 culti-vated 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.  We may extract the following passage from Sri T. Madhava Row’s Memorandum regarding the origin and nature of Jenmom rights : 
  • “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 origi-nally 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 fn 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)
  • We  may also refer to certain passages from an article contributed by a former maharaja of Travancore in 1882 :
  • “according to all legends and all available evidence, the Malabar Coast was populated by Aryan emigrants from the eastern side of the ghauts. It is equally a fact that the priestly class not only predominated among the emigrants, but actually monopolised the whole of the land of their adoption to themselves, the rest of the emigrant population being their drawers of water and hewers of wood, thejr serfs or at the most, their tenants-at-will. But to stereotype the configuration of society for all time to come, is as much an impossibility as to fix that of the clouds of the sky. Aggregations and segregations of power, influence and wealth, must ever and anon go on under the guidance of the universal law of struggle for existence and survival of the best. These priests are the wisest, and consequently the most powerful, who, without directly arrogating secular power to themselves, can bring into the meshes of their moral influence, those in whose hands that universal law places such power. The ecclesiastics of the Malabar Coast knew this as instinctively as the ecclesiastics of Rome. But they had the additional advantage of having something more solid than benedictions and indulgences to confer upon their political stewards, vi viz. , sovereignty of the land which exclusively belonged to them. They were equally wise and far-sighted in another step they took. They foresaw that the halo of sanctity which encircled themselves might not be proof against the gradual degeneracy of religious feelings which time must produce, and the consequent encroachment upon their supremacy in the land. And they constitutionalized that sanctity by demising large tracts of land and their revenues to certain temples built and consecrated by them. Men who would not hesitate to rob a priest may still hesitate to commit sacrilege on an object of general religious worship. Of these temples, the priests assumed the proprietary wardenship. Almost every temple of note had a synod of these priestly wardens. They invited the leading layman or chief to a membership of the synod and entrusted to him the stewardship of the whole temple domain, subject to their superior authority. Thus arose those rich temples. Thus arose the sovereignties of the Malabar Coast”. (pp. 6 and 7 of Travancore Land Revenue Manual, vol. IV-1916  ).
  • 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.”
    • Note: 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 KLT 216: 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).

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. Two types of tenures were important in Madras Presidency: landlord-tenures and the ryotwari-tenures. The properties held by Janmis were regarded as their absolute proprietors. A large number of tenants cultivated the land. They paid rent to the Janmies.

Ryotwari System in Malabar – Lease by Government, under Pattas

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.

A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant. Still, such pattadar was virtually taken as a proprietor.

Ryotwari Settlement – Assessment for Revenue

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.

Cochin – Land Situation

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 several Naduvazhis or local chiefs.
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 also called Sircar or Pandaravaka lands.

Cochin-Pandaravaka Verumpattom lands 

Settlement Proclamation of Cochin of 1030 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.

Read Blog: Land Tenures, and History of Land Derivation, in Kerala

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-Tenuers

According to the Travancore Land Revenue Manual, (1915), the tenures fell under two main heads:

  • Sirkar or Pandaravaga;
  • 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

Sirkar or Pandaravaga:

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

  • (a)  Pandarapattom, (b)  Otti, (c)  Enam, (d)  Viruthi, (e)  Special tenures, (f)  Karamolivu,

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)  Karam-olivu

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

Land-Classification in Cochin – Pandaravaka, or Puravaka

All lands were classed under Pandaravaka, or Puravaka. The lands owned by the State (or having the jenmom or proprietary right) were the Pandaravaka lands. The proprietary right over Puravaka land rested with private individuals or public institutions.

The chief land systems of tenancy were called Verumpattom. This was simple leasehold. By a series of legislative enactments, tenants gained occupancy rights in the lands held by them.

Land Reform Measures that Shaped Kerala

The Kerala Land Reforms Act, 1963 made Kerala change tremendously. Modern Kerala is shaped by this Act. The legislation was not a sporadic one. The history shows – there were several ‘pre-independence’ Landmark Enactments that had paved the way to the KLR Act:

Landmark Enactments in Land Tenure Reforms

  1. Travancore Royal Pattom Proclamation, 1040 (1865) pertained to Pandaravaka lands
  2. Cochin Settlement Proclamation, 1080 (1905) pertained to Pandaravaka lands

Travancore Royal Pattom Proclamation of 1040 (1865 AD) – Magna Carta of peasants

During the second half of the 19th 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.

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 at any time, as they were in the nature of temporary leases just like tenements created by private jenmis.

The Pattom Proclamation of 1040 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 1040 ME (1865) declared:

  • “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 plated on a much better footing than at present so as to enhance their value; We are pleased to notify to Our Ryots –
  • 1st. 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 VenPattom, 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, heritable, saleable, and otherwise transferable, property.
  • 3rdly. Accordingly, the sales, mortgages, etc., to these lands will henceforward 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 henceforth 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, etc., and when resumed for such purposes, compensation will be paid by the Sirkar not for improvements only as heretofore, but equal to the full market value of such lands.
  • 7thly. That the foregoing concessions are not how-ever to be understood to affect it 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 ail 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 a 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 Karkatakom 1059.” (Quoted in: Padmanabharu Govindaru  v. The State of Kerala, AIR 1963 Ker 86.)

Cochin Settlement Proclamation of 1080 (1905)

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 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 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 stood repealed by implication by the Land Tax Act of 1961.

‘Jenmam’ and Pndarapattom Land Whether ‘Estate’ Within Article 31-A

‘Jenmam’ 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’.

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

“31A (2). 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.”

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‘.”

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 ‘Inam 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, 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 KLT 216: 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).

‘Pandarapattom’ (Cochin & Travancore) – Proprietary right

In Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694, the Supreme Court held** that Pandarappattom properties (in Cochin) 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’.

  • ** By majority, P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta; and N. Rajagopala Ayyangar, dissenting.

The Supreme Court (majority) held, with respect to Cochin Regulation 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 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.”

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 (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.

Rev. Fr. Victor case – Tenants of Pandarapattom Confered 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 KLT 216: 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, 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 KLT 216: 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.”

Though Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216: AIR 1971 Ker 168,  was overruled in Velayudhan Vivekanandan v. Ayyappan  Sadasivan, ILR 1975-1 Ker 166; 1975  KLT 1, it was without probing into the question – whether the Proclamation conferred, on the tenants, absolute proprietary rights or not. It was observed as under:

  • “4. The Full Bench decision in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216: AIR 1971 Ker 168, also, I think with great respect, has not been correctly decided. The document that was considered therein was styled as ‘Ottikuzhikanam” ….   The Full Bench observed that the words, in the operative portion of the document, would put it beyond any doubt that the property was given for enjoyment.”

Read in this Cluster:

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

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