Land Tenures, and History of Land Derivation, in Kerala

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

History – in Nutshell

  1. According to the prevailing mythology, Parasurama, the founder of Kerala, gave lands to Brahmins. The lands belonging to Brahmins constituted Jenmom (Janmom/Genmom) lands.
  2. In the course time, the Brahmins and prominent Nairs came-out as the territorial lords. They were called Jenmies. The rest of the people cultivated the lands under these Jenmies.
  3. The Jenmies endowed lands to temples, and thus emerged the Devaswom lands.
  4. By 8th century, the entire cultivable lands came under (i) the Devaswoms or temples (Devaswom lands), and (ii) the Brahmin Janmies (Brahmaswom lands).
  5. Sirkar itself became one of the Jenmis, it  having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways.
  6. In Travancore, during the period of Marthandavarma, the entire assets were regarded as the property that belonged to the Treasury or Offertory (Bhandaram).
  7. The survey and settlement of Travancore were finalised in 1910.
  8. In Malabar (formed part of the erstwhile Madras province), two types of tenures were important: landlord-tenures and the ryotwari-tenures (tenancy on Govt. land).
  9. The permanent settlement (fix revenue to be raised from land) was introduced by the British Government in the Malabar area in 1802.
  10. Under the ryotwari system, land was given on lease by the government to the ryot under a patta. A ryotwari pattadar was only a tenant.
  11. Cochin was brought under the centralised administration by the King, Rama Varma, popularly known as Sakthan Thampuran (1790 – 1805).
  12. During the second half of 18th century major portion of the lands, in both Travancore and Cochin kingdoms, were brought under the respective Government administration and these lands were called Sircar or Pandaravaka lands.
  13. Except Kerala, no other state in India has implemented the socio-economic legislation like Kerala Land Reforms Act to safeguard the interest of the agricultural classes.
  14. The Kerala Land Reforms Act, 1963 made Kerala change tremendously.
  15. The Kerala Land Reforms Act was not a sporadic one. There were several ‘pre-independence’ enactments that paved the way to the Act.

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 fall under two main heads:(1) Sirkar or Pandaravaga;(2) Janmam.
  • In settlement (1910), numerous tenancy-tenures had been recognized. 
  • For practical purposes, as per the Travancore Land Revenue Manual, the tenures were classified as under:
    • 1. Sirkar or Pandaravaga
    • 2. Sirkar Devaswom vaga
    • 3. Kandukrishi
    • 4. Sreepadam vaga
    • 4. Sree pandaravaga
    • 6. Janmam (Includes Devaswom, Brahmaswom, Inam etc.)

Land-Classification in Cochin

  1. 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.
  2. The chief land systems of tenancy were called Verumpattom. This was simple leasehold.
  3. By a series of legislative enactments, tenants gained occupancy rights in the lands held by them.

Ryotwari System in Malabar – Lease by Government, under Pattas

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

‘Jenmam’ 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’.

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

  1. 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.
    • * (Note: Estate denotes, generally, property ownership)
  2. 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 satisfies even the orthodox definition   of ownership by Austin, and was ‘estate’ within the meaning of Article 31A(2)(a) of the Constitution.

Part I

Ancient History of the Land of Kerala

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

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

The Arian Invasion

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

Rise of Brahmin Janmies

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

Devaswom Lands and Brahmaswom Lands

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

Jenmom lands and Exalted position of Brahmins

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

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

Malabar and Chera Kingdom

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

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

Travancore – Padmanabha Swamy Temple and ‘Bhandara Vaka’ Lands

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

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

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

  • “Marthandavarma took over full control of the State and the Padmanabha Swamy Temple and it is he who reconstructed the Temple which was in bad shape after a major fire that took place years back and installed a new idol. In fact the King surrendered his Kingdom to the presiding Deity namely, Padmanabha Swamy and declared himself the Dasa or servant of the Lord and assumed the name ‘Padmanabhadasa’. Marthandavarma ruled Travancore from 1729 to 1758 and after him also the Temple continued to be under the direct management and control of the King.”

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

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

Jenmies and Sircar were Owners of Property in Travancore

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

  • “Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, escheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its Jenmom property is extensive. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i.e., from the Sirkar, which is the chief Jenmi, or from some other Jenmi”. (Quoted in: Rev. Fr. Victor Fernandez Vs. Albert Fernandez, 1971 KLT 1).

Revenue Settlement of Travancore in 1910, Basic record of Land related matters

The survey and settlement of Travancore State had been commenced in 1885 during the reign of Sri. Moolam Thirunal; and was finalised in 1910. The collection consists of Settlement Registers (after survey) of the villages under the State.

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

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

Ryotwari System in Malabar – Lease by Government, under Pattas

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

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 Naduvazhis or local chiefs – Paliyam swaroopam, Cheranellore Karthavu the head of the Anchi Kaimals, Muriyanatt (Mukundapuram-Nadavarambu) Nambiar the head of Arunattil Prabhus, Kodassery Kartha, Mappranam Prabhu, Vellore Nair, Chengazhi Nambiar (Chengazhinad Naduvazhi), Edappali Nampiyathiri etc.

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

Settlement Proclamation of Cochin of 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 and that their rights would remain undisturbed so long as they regularly pay the State revenue. See: Purushothaman Nambudiri v. State of Kerala, AIR 1962 SC 694; Padmanabharu Govindaru  v. The State of Kerala, AIR 1963 Ker 86.)

Part II

Classification of lands in Travancore:

The lands were classified under 8 heads in the Travancore Land Revenue Manual, Volume III (1915).  They were –

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

Registered lands:

In Travancore , the Registered Lands included, inter alia,

  • (a) Pandaravaka lands and
  • (b) Janmam lands (Kannan Devan Hills Produce v.  The State of Kerala, AIR 1972 SC 2301).

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

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

‘Jenmom Lands’ and ‘Janmies’ in Travancore

In the Travancore Land Revenue Manual, Vol. III, Registered Lands are described as under.

  • “Registered lands are lands registered in the revenue accounts as held by or granted to individuals, families, corporations or institutions, and comprise all the different kinds of tenures bearing either the full assessment or wholly or partially free of assessment. …” (Quoted in: Kannan Devan Hills Produce v.  The State of Kerala, AIR 1972 SC 2301)

Regarding Pandaravaka lands it is stated :

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

‘Jenmom’ was the proprietary interest of a landlord in lands (Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080). Subba Rao, J., observed as under:

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

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

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

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

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

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

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

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

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

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. The Act required the Grantees and lessees to pay current seigniorage rates (for the trees cut by the grantees and leases) and rent to the Government. The Collector was authorised to revise assessment and rent.

“Seigniorage” in 1980 Act de hors the Right of Ownership

In Divisional Forest Officer v. Tata Finlay Ltd. AIR 2001 SC 2672, it observed, while interpreting “seigniorage” in Section 4(1), Kerala Grants and Leases Modification of Rights Act, 1980, as under:

  • “In Section 4(1), the expression “seigniorage” is employed to enforce a prerogative of the State de hors the right of ownership in the property.”

In  Majeed v. State of Kerala the State demanded seigniorage under  Kerala Grants and Leases Modification of Rights Act, 1980. Admittedly there was originally a grant. The following contention of the petitioner was not accepted by the Court:

  • “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).”

Edavagas:

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

  • 1.  Sreepadam.  
    • It comprised in 7 pakuthies in Chirayinkil Taluk.
    • These villages were originally hereditary domain of Ranis Attangal. Subsequently the sovereignty was transferred to Travancore Maha Raja.
    • Rent was collected from this land and accounted as public revenue.
  • 2.  Kilimanur.
    • It comprised in 2 pakuthies in Chirayinkil Taluk.
    • This land was granted to Kilimanur Koil Thampurans.
    • The land revenue was assigned to the family of Koil Thampurans.
  • 3.  Edappally.
    • It comprised in Edappally North and Edappally South Pakuthies in Alangad Taluk; Thrukkunnappuzha in Karthikappally Taluk; Kallooppara in Thiruvalla Taluk; and Vazhakkulam in Kunnathunad Taluk.
    • The land revenue was assigned to the Chief of the Edappally Edavaga.
  • 4. Vanjipuzha
    • The administration and collection of rent from the tenants in this Edavaga was left to be settled by the Chief in 3 Pakuthies in Peermedu Taluk.
  • 5.  Poonjar
    • It comprised in Poonjar Pakuthi in Peermedu Taluk.
    • This Edavaga was the property of Poonjar Rajas.
    • They received grants from early sovereigns of Travancore.
    • According to the tradition, the Edavaga was purchased by the Rajas from Thekkumkur and for annexation of Thekkumkur by Travancore, the Poonjar Chief became the vassal of Travancore.

Edavagais

In Harska Turst v. State of Kerala, ILR  1960 Ker 345, 1960 Ker LT 378, it is observed as under:

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

In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is observed as under:

  • “The Edavagai Act intended acquisition and extinguishing of all Edavagai rights over the Edavagais of Edapally, Kilimanoor, Poonjar and Vanjipuzha; then vested respectively in the Edapally Swaroopam, Kilimanoor Kottaram, Poonjar Koickal and Vanjipuzha Madom. Obviously Edavagai Chiefs were the Vassals of the Travancore-Maharaja and had rights over the lands within their jurisdiction as jenmies and otherwise, for collection of rent.”

Edavagai Rights Acquisition Act, 1955

Harska Turst v. State of Kerala, ILR  1960 Ker 345, 1960 Ker LT 378, observed as under:

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

In Harrisons Malayalam Limited v. State of Kerala, 2018-2 KLT 369, it is pointed out-

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

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

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

Purambokes:

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

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

Tharisu or Assessed Waste

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

Transposition ‘tharishu’ to ‘puthual-registry’:

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

Puthuval Assignment

  • Puthuval  lands  were  lands  (i) not assessed  and  registered  in  the  Sirkar  accounts  in  the  name  of  any  individual  and (ii) not  governed  by  Regulation  II  of  1040.  These lands, when remained unregistered, were the absolute property of Government.  Title was conferred to individuals by the Grant or assignment by the Government, . 
  • Under the Puthuel Rules (1097 ME) it had to be done by public auction or by ‘assignment otherwise than by auction’. Such converted lands were treated as ‘pandarappattom’ lands.
  • In the Puthuval Rules there was provision for ‘Concessional Registry of Lands’. for the assignment to the members of the depressed classes or to indigent families belonging to other communities, on application made to the Tahsildar of the Taluk. 
  • If the encroachment was one where ‘Registry is desired’ an application could be taken from the occupier and dealt with under Puthuval rules.  If encroachment was ‘not desired’ or if puthuval registry was refused, steps could have been taken against the encroachment.

Thanathuchitta lands:

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

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

Reserved Forests:

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

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

Reserved lands or proposed reserves:

These lands were proposed for reservation under the Forest Regulations. 

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

Unreserved lands

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

Land Tenures.

Revenue Records – Maintained Promptly

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

Various Land-Tenuers

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

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

760 Types of Tenures in Travancore

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

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

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

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

1. Sirkar or Pandaravaga:

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

  • a)  Pandarapattom,
  • Pandarapattom was originally in the nature of lease without any proprietary or transferable right.  By the royal proclamations, the holders of these lands were given with full proprietary rights and declared to be private, heritable and transferrable property.  Puthuval lands came under this tenure. 
  • b)  Otti
  • It was originally in the nature of a mortgage.  It stood as a real or constructive loan by the State.  Interest was deducted from Pattom to be paid by the holder.  He had also to pay Rajabhogam (tax).
  • c)  Enams
  • Enams were service enams or personal enams.  Service enams were inalienable.  It continue as long as the holder was in service.  Personal enams were given to support individuals or families.  Such properties could have been transferred by the holders.
  • d)  Viruthi
  • It stood analogous to service enams.  But had permanency if the holder continued his service regularly.  When he died the holding passed to legal heirs subject to certain payments.
  • e)  Special tenures
  • It was in the nature of enam which received special treatment.
  • f)  Karamolivu
  • All Lands except janmam included under this head.  The land was tax-free.

2. Sirkar Devaswom vaga

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

3. Kandukrishi

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

4. Sreepadam vaga

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

5. Sree Pandaravaga

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

6. Janmam

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

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.

Land-Tenuers in Cochin

Verumpattom

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

Kanam

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

Pankuvaramdars

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

Kudikidappukar.

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

Otti (Mortgages).

Tenancy under this head took different forms in different regions.

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

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

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

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

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

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

Ryotwari Settlement – Assessment for Revenue

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

Part III

Land Reform Measures that Shaped Kerala

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

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

The Kerala Land Reforms Act, 1963 made Kerala change tremendously. Modern Kerala is shaped by this Act (though some, including a few who were benefitted, may hesitate). The legislation was not a sporadic one. The history shows – the following ‘pre-independence’ and ‘post-independence’ enactments were mile-stones that had paved the way to the KLR Act:

Travancore

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

Malabar

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

Cochin

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

Kerala

  • Kerala Agrarian Relations Act, 1961.
  • Note: The Supreme Court struck down the 1961 Act in Kunjikoman V. State of Kerala, AIR 1962 SC 723 as unconstitutional in its application to the ryotwari lands of Hosdurg and Kasargod Taluks as violative of the Art. 14 of the Constitution.
  • The High Court of Kerala, in Govindaru Nampoothiripad v.  State of Kerala,  1962 KLT 913, AIR 1963 Ker 86, declared the Act null and void in its application to the ryotwari lands of Malabar area and the lands held under Kandukrishi, Sreepadomvaka, Thiruppuvaram, Pandaravaka, Viruthi etc.

Landmark Enactments in Land Tenure Reforms

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

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 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.)

Royal Proclamation of 1061 Brings in Further Radical Changes

Section 22 of the Settlement Proclamation of 1061 made radical changes in land tenure. Those changes were:

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

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

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

Jenmi & Kudiyan Act (1071) and Amendment of 1108- Made Kudiyan, Full Owner

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

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

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

The changes introduced by the Amended Regulation reads as under:

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

Cochin Settlement Proclamation of 1080 (1905)

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.

Travancore Jenmi and Kudiyan (Amendment) Act, 1935

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

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

Tamil Nadu Inam-Estate Enactments

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

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

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

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

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

Part IV

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

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.”

1. Jenmam – Proprietary right in the soil

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

  • “Under the definition, any jenmom right in Kerala is an ‘estate’. A jenmom right is the freehold interest in a property situated in Kerala. Moor in his “Malabar Law and Custom” describes it as a hereditary proprietorship. A jenmom interest may, therefore be described as ‘proprietary interest of a landlord in lands‘.”

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

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

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

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

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

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

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

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

Govindaru Nambooripad v. State of Kerala, AIR 1963 Ker 86, was overruled by the larger Bench in Rev. Fr. Victor Fernandez v. Albert Fernandez, 1971 KLT 216, 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, 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,  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, 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:

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

Published by sajikoduvath

1 Comment

  1. V Ramachandran says:
    October 11, 2022 at 10:36 pm

    An outstanding exposition Sir. Compliments on your erudite compilation. V Ramachandran. Coimbatore

    Like

    Reply

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