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2024 (6) KHC J-4
Land Tenures, and History of
Land Derivation, in Kerala -
Grants Acts and Important Decisions*
Sri. Saji Koduvath
Advocate, Kottayam
Part III
Grants Acts and Important Decisions
Important Enactments on ‘Grant’
1. The Government Grants Act, 1895
The Government Grants Act, 1895 (known as ‘Crown Grants Act, 1895’), had been
enacted with a view to secure the Govt. lands from potential or protracted legal
claims. It applies to erstwhile Malabar area of Kerala (part of former Madras State).
The Government Grants Act, 1895 reads as under:
* 1. Title and extent.— (1) This Act may be called the Government Grants Act,
1895.
* (2) It extends to the whole of India except the territories which, immediately
before the 1st November, 1956, were comprised in Part B States.
* 2. Transfer of Property Act, 1882, not to apply to Government grants.—
Nothing in the Transfer of Property Act, 1882 (4 of 1882), contained shall apply or be
deemed ever to have applied to any grant or other transfer of land or of any
interest therein heretofore made or hereafter to be made by or on behalf of the
Government to, or in favour of, any person whomsoever; but every such grant and
transfer shall be construed and take effect as if the said Act had not been passed.
* 3. Government grants to take effect according to their tenor.— All
provisions, restrictions, conditions and limitations over contained in any such grant
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or transfer as aforesaid shall be valid and take effect according to their tenor, any
rule of law, Statute or enactment of the Legislature to the contrary notwithstanding.
2. Government Lands Grants Act, 1940 (Cochin)
The Government Lands Grants Act, 1940 (enacted with the same words to effect
restrictions as that of the Government Grants Act, 1895) made constraints in the
‘grant or other transfer of land or of any interest therein heretofore made
or hereafter to be made by or on behalf of the Government to, or in favour of, any
person whomsoever’. By virtue of this Act also, Transfer of Property Act and Tenancy
Acts did not to apply to lands given as grant by the Government.
3. Kerala Grants and Leases (Modification of Rights) Act, 1980
Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view
to modify the rights under grants and leases, for cultivation, made by the former
States of Travancore and Cochin. The Act was made for the reason that such grants
and leases brought about heavy loss to the Government and they resulted in huge
un-earned profits to the grantees and lessees; and it was found necessary in the
public interest that such undue profits to a few person were to be utilised for the
common benefit of the general public.
Key Decisions on Grant
In the following cases the effect of “grant” by the Erstwhile Governments was
considered.
1. Kannan Devan Hills Produce Co. Ltd. v. The State of Kerala (1972 KHC 77 :
AIR 1972 SC 2301)
The Supreme Court, in Kannan Devan Hills Produce v. The State of Kerala (1972 KHC
77 : AIR 1972 SC 2301, (Sikri, C. J.; Shelat; A. N. Ray; I. D. Dua; H. R. Khanna, JJ.) held
that Kannan Devan Hills Concession (on grant deeds) fall within the
expression “Janmam right” vested with Sircar. The State of Kerala made an
Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the
possession of the land remained in the possession of the Kannan Devan Hills
Produce Co. Ltd.
According to the petitioner Company, ‘it has at all times been holding, cultivating,
enjoying and dealing with the Concession Land as the absolute, owner thereof’.
According to the State, this land is dealt with under this heading – Pandaravaka
Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the
company for ‘coffee cultivation’. It asserted—
* that the petitioner Company was not an absolute owner, but only a lessee under
the Government, especially since the 1899 Proclamation issued by H. H. the
Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
* that the petitioner’s predecessor-in-title was John Danial Munro, who obtained,
the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This
Concession recited that an, application was made for the grant of the above
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property to the Raja for coffee cultivation.
* It was further stipulated in the Concession that
* “you shall clear and remove the jungles, and reclaim the waste lands within the
said boundaries, and cultivate them with coffee up to the year 1058 and from the
year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees”.
* H. H. the Maharaja executed a deed of ratification, dated November 28,
1878, by which the Government ratified the First Pooniat Concession dated July 11,
1877.
* This deed of ratification laid down – the Government permitted the grantee to
hold the land. (it is similar to the ‘Grant/Title’ deeds executed by the State in all
other ‘Grants’ – under the ‘Grant Rules’).
* Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
* “The grantee can appropriate to his own use within the limits of the grant all
timber except the following and such as may hereafter be reserved namely, Teak,
Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber
without the limits of the grant it will be subject to the payment of Kooteekanom, or
Customs Duty............
* The eleventh clause reads — “The land granted shall be held in perpetuity as
heritable or transferable property, but every case of transfer of the grant by the
grantee shall be immediately made known to the Sircar, who shall have the right of
apportioning the tax, if a portion of the holding is transferred”.
* The twelfth clause stipulates — “The discovery of useful mines and treasures
within the limits of the grant shall be communicated to the Sircar, and the grantee
shall in respect to such mines and treasures, abide by the decision of the Sircar”.
* The sixteenth clause provides — “The grantee shall be bound to preserve the
forest trees growing on the banks of the principal streams running through the tract
to the extent of fifty yards in breadth on each side of the stream, the Underwood
only being permitted to be cleared and coffee planted instead. Similarly he shall also
be bound to preserve the, trees about the crest of the hill to the extent of a quarter
of a mile on each side”.
* A Royal Proclamation was made on September 24, 1899 provided that
‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the
inhabitants of the said tract are ‘hereby informed and warned that they are not to
pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.
Points came for consideration were the following:
* Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected
from challenge under Article 31A of the Constitution. That is, whether these lands
fall within expression ‘Janmam right’ or “estate” in Article 31A of the Constitution.
* If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the
Company, the land reform enactment did not have stood valid. (Note: Kesavananda
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Bharathi Case came in 1973.)
The Apex Court found the following:
* The janmam rights (even if remained with the Poonjar Chief, H. H. the Maharaja
became the janmi by the Royal proclamation of 1899.
* The nature of ‘janmam right’ has been examined by this Court previously in
Kavalappara Kottarathil Kochuni v. State of Madras (1960 KHC 389 : 1960 (3) SCR
887) Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the
freehold interest.
* The Sircar itself is one of these janmis and it was the largest Janmi. It
came to possess janmam lands by gift, purchase, escheat, confiscation and other
ways.
* If any person wants land in Travancore, he must obtain it from, some one of the
body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other
Janmi.
The Apex Court observed as under:
* “… On the material placed before us it is difficult to resist the conclusion that the
lands in dispute fall within the expression “Janmam right”.
* If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands
that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat
confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that
the Sircar became the Janmi.
The Apex Court further found—
* The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam
lands.
* Regarding Pandaravaka lands it is stated: “Pandaravaka or Sircar lands are,
lands of which the State is the landlord or the Jenmi and whatever rights which vest
in the ryots are derived from the Sircar”.
* Kannan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka
Lands.
* It thus appears that the State grants like Kannan Devan Hills Concession and
Ten Square Miles Concession, and Munro Lands, were treated under the heading
‘Pandaravaka Lands, i.e. lands belonging to the Sircar (that is, such Grant-lands
were not ‘owned’ by the holders thereof).
On these findings the Apex Court upheld the Kannan Devan Hills (Resumption of
Lands) Act, 1971 and dismissed the challenge of the Company.
2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd. (1991 KHC 1119 :
(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 KHC 1119 : (1991) 2 SCC 272), as under:
* “The Trial Court in a detailed and well-reasoned judgment dismissed the suit of
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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 KHC 29 : 1969 KLT 378 : AIR 1970 Ker. 21), 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
KHC 29 : 1969 KLT 378 : AIR 1970 Ker. 21)) that kuttikanam being the Governments
share of the value of the trees owned by the Government it has the power to fix the
value of the trees. We agree with the reasoning and conclusions reached
by Mathew, J.”.
The Apex Court upheld and approved “the judgment and findings” of the Trial Court.
3. George A. Leslie v. State of Kerala (1969 KHC 29 : 1969 KLT 378 : AIR 1970
Ker. 21) – (K. K. Mathew, J.)
Travancore Regulation II of 1040 (1865) and Rules for the sale of Waste Land on the
Travancore Hills dated 24th April, 1865 considered.
It is observed:
* “Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules
for the sale of Waste Land on the Travancore Hills dated 24th April, 1865. It
conferred a heritable and transferable interest in the grantees of the land comprised
in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for
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the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding
this question. It provides:
* “Grantees can appropriate to their own use within the limits of the grant all
timber except the following and such as may hereinafter be reserved, namely, Teak,
Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any
timber without the limits of the grant, it will be subject to the payment of kuttikanom
or customs duty or both, as the case may be, in the same way as timber ordinarily
felled”.
* 10. We think that if title to the reserved trees passed to the grantees, a provision
of this nature would have been quite unnecessary. There was no purpose in stating
that the grantees will be free to appropriate the reserved trees for consumption
within the limits of the grant, if title to the trees passed to the grantees; the provision
is a clear indication that the grantees were allowed to cut and appropriate
the reserved trees for consumption within the limits of the grant as a matter of
concession”.
It was pointed out—
* Travancore Pattom Proclamation of 1040 (1865), which conferred full rights on
tenants of pandarapattom land. They have no application to the land or trees
comprised in grants for cultivation of coffee or tea (under Rules for the sale of Waste
Land on the Travancore Hills dated 24th April, 1865).
4. Thomas Philip v. Forest Range Officer – 1923 ‘Grant’ of Travancore
Government
Grant made by the Travancore Government, in 1923 was considered in Thomas
Philip v. Forest Range Officer (2021 KHC 211 : 2021 KHC OnLine 211 : 2021 (2) KLT
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
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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) KHC 383 : 2020 (2) KLT 560), and
Manoj A. N. v. State of Kerala (2013 (3) KHC 505 : 2013 (2) KLD 358 : 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 KHC 827 : 2002 (3) KLT 526), and Majeed v. State
of Kerala (2006 KHC 425 : 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 (Varkey Chacko
v. State of Kerala, 2011 KHC 6774) and Crl. M. C. No. 7347/2017 (Raju Sebastian v.
State of Kerala, 2018 KHC 5548)).
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
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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 (1962 KHC 210 : 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 the 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
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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 (1962 KHC 210 : 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) KHC 719 : 2018 (2)
KLT 369) — though this decision was overruled by the larger Bench in Rev. Fr. Victor
Fernandez v. Albert Fernandez (1971 KHC 1 : 1971 KLT 1 : AIR 1971 Ker. 168)).
6. Majeed v. State of Kerala Grant and the Right of Ownership
In Majeed v. State of Kerala (2006 KHC 425 : 2006 (1) KLT 19), the State
demanded seigniorage under Kerala Grants and Leases Modification of Rights Act,
1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea
Company Ltd. Disputes and questions arose in the light of of the Kerala Grants &
Leases (Modification of Rights) Act, 1980. Admittedly there was originally a grant.
The scope of ‘grant’ was disputed. The contention of the petitioner was that it
was the free hold property. The Court did not accept the argument.
* The rejected contention was stated by the Court as under:
* “The petitioner contends that the respondents have no authority to demand
seigniorage in respect of the timber of the trees planted by the company, as the
property in question granted in favour of the company is not a leasehold
property, but a free hold property, as is revealed by the order of grant Exts.
R2(i)”.
(* This is a Six Part series on Land Tenures, and History of Land Derivation, in Kerala
which will be useful for the Bench and the Bar.)
