Travancore Grant Deeds, in Law

Jojy George Koduvath

Contents in a Nutshell
Travancore Grants are made under various Rules.
Grant, in property law, denotes a right or privilege.
Grant is subject to conditions and restrictions.
Salmond includes it under ‘Classes of Agreements’
Travancore Grant Deeds bear the caption “Title Deeds”.
It does not signify absolute ownership.
Guidance may be drawn from S. 15, Easements Act.
It refers to – “claiming title thereto – as an easement”.
In Govt. Grant, the Land Continues to be Govt. Lands.
Court Decisions
A Planter under a Grant from Government is held to be not a Jenmi –
Padmanabharu Govindaru v. State of Kerala, AIR 1963 Ker 86,
Kannan Devan Hills v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Co. Ltd., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan, AIR 1998 Ker 267
The Government cannot assign land on their whims and fancies.
(Mahindra Holidays v. State of Kerala, 2019-2 KLT 978)
If Patta for Personal Cultivation; Assignee cannot have a Better Title.
(Mahindra Holidays v. State of Kerala, 2019-2 KLT 978)
If land is assigned for a purpose, it cannot be used for Other Purposes.
(R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707)
Subsequent Assignees of Pattaadar Cannot Claim More Rights.
Revenue authorities could not have recommended construction.
The local authority could not have issued permit.
This cannot create rights for the holder.
Revenue authorities collude with the assignees.
It causes gross damage to the ecology and environment.
The holders are aware of the conditions of assignment.
The illegalities result in ecological imbalance.
(R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707)
Forfeiture on Claim of Ownership By ‘Grantee’.
(Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).

What is ‘Grant’?

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

Characteristics of ‘Grant‘

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

‘Grant’ – Salmond on Jurisprudence

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

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

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 unearned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public.

Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:

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

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

Govt. Grant – Land Continues to be Govt. Lands

A Planter under a Grant from Government is not a Jenmi

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

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

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

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

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

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

Rules under which Travancore Govt. issued Grants

The Rules included –

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

Grant of Reserved Forest Land

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

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

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

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

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

“11. … Though the learned Senior Counsel attempts to show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the ‘acquisition of rights of any nature’ without a grant or contract on writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted.”

Important Decisions on Grant

Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301	Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272	Company did not acquire absolute proprietary rights over the Concession Area (on grant deeds)
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 –	A coffee planter who holds lands under a grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19	Petitioner contended – ‘grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578	Arguement that deed of ‘grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deed was not accepted

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

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

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

The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.

Points came for consideration were the following:

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

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

The position taken by the State was –

that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
- “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja (Travancore) executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land.
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
- “the grantee can appropriate to his own use within the limits of the grant all timber except … Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer … be immediately made known to the Sircar….”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, ….”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams …. fifty yards …. Similarly … preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”

The Apex Court found the following:

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

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

The Apex Court further found –

The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands. “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
It thus appears that the State grants like
- Kanan Devan Hills Concession and
- Ten Square Miles Concession, and
- Munro Lands,
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.

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

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

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

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

It is observed:

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

It is observed further:

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

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

3. George A. Leslie vs State Of Kerala – AIR 1970 Ker 21

In this case, the grant made under the Travancore Regulation II of 1040 and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 is considered.

It is observed:

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

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

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

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

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

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

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

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

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

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

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

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

Note: Note: In this case, the expression “title deed” does not denote a document conferring full ownership. This can be clarified by the use of the phrase “title thereto” in the definition of ‘Prescriptive Easement’ under the Easement Act.

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

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

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

Note: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 gives us “illuminative information as to the concept of ‘jenmom’” as pointed out in Harrisons Malayalam Limited v. State of Kerala, 2018 2 KerHC 719; 2018 2 KerLT 369 – though this decision was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez, AIR 1971 Ker 168 :1971 KerLT 216).

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

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

In Majeed v. State of Kerala,(2006) 1 KerLT 19 (K.A. Abdul Gafoor, K. Thankappan, K. Hema, JJ.), 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 the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly, there was originally a grant. The scope of the ‘grant’ was disputed.

The question that came before the Full Bench was –

whether, in the light of Section 4 of the Kerala Grants & Leases (Modification of Rights) Act, 1980, ‘seigniorage (or kuttikanam) is liable to be paid for removal of the timber of the trees stated to be planted by the grantee from a property assigned by way of grant by the Government’.

The legal background for reference to Full Bench was the following:

In State of Kerala v. Kannan Devan Hills Produce Co. Ltd., [1991] 2 SCC 272, our Apex Court has held that “the State Government could refuse to permit transportation of timber from the Concession Area” and the “Government being the owner had a right to impose kuttikanam on the removal of the trees out of the Concession Area.
The Division Bench that referred the matter to the (present) Full Bench noted that a similar matter was considered by a Division Bench, and opined that the contention that Kuttikanam (or seigniorage) could not be charged in respect of “such timber which was planted by the grantee in the Concession Area” was negatived by the Apex Court.
The said decision of the Apex Court has been distinguished by yet another Division Bench of the High Court in State of Kerala v. Kannan Devan Hills Produce Co. Ltd.,1998 (1) KLT 28: AIR 1998 Ker 267 (K.K. Usha, N. Dhinakar, JJ.), holding that “if the Government and intended to claim ownership on the trees which are to be cultivated by the grantee, specific reference would have been made to such trees also in the documents”. The Bench, therefore, concluded that if the trees are planted by the grantee, “the grantee is not liable to pay any seigniorage or kuttikanam in respect of timber of those shade trees”.

The Full Bench, in reference, held as under:

“14. Apart from this, the Special Government Pleader has pointed out to us the departmental rules regarding the sale of waste land, subject to which grant has been made as per Ext. R2(a), which categorically makes it clear that: “The other terms of the grant shall be the same as those that apply to waste lands granted under the coffee land dated 7th July 1898.”_{(The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017)}
The rules for the sale of wasteland on the Travancore Hills for coffee or tea cultivation provide for reservation of trees to attract Clause (c) of Section 3 of the Act. She further submits that, the grant in terms of Ext. R2(a) is not absolute. Notwithstanding the terms of the lease, the government can, as per Section 4, demand seigniorage from the grantee.”

The contention of the petitioner was that it was the free hold property.

The Full Bench rejected the contention on ‘free hold’..

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

The High Court rejected the Writ Petition recording as under:

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

No Rule Against Perpetuity in Public Law;

The Government cannot assign land on their whims and fancies

Section 11 of the TP Act says –

where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

But, in Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978 (A. Muhamed Mustaque, J.), it is held as under:

“6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations.
7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest.
8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine the decision taken to cancel the assignment in the light of the public trust doctrine.
9. In Illinois Cent Co. v. State of Illinois City of Chicago [146 US 387 (1892)], principles relating to public trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows:
- ‘The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein’.
10. In M.C.Mehta v. Kamal Nath and others [(1997) 1 SCC 388], the Apex Court observed that the State is the natural trustees of all resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources.
11. In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571], the Apex Court held as follows:
- “53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
- 54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”
12. Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1] at para.114 it was observed as follows:
- “114. It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.”
13. In the Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] at para.75, it was held as follows:
- “75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.””
Note: Appeal to Division Bench (from Mahindra Holidays & Resorts India Limited v. State of Kerala) is dismissed in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679.

Original Patta for Personal Cultivation; Assignee cannot have a Better Title

In Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978, it is held further as under:

“17. Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, anyone can question such use of land for commercial purposes.
18. This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in Haridas v. State of Kerala [2016 (4) KLT 707] and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation.
19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism.
20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one’s own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the Government based on public policy. No action of the Government would bind them if it was against the public policy of the State.”

If Land Assigned for Specific Purposes, it Cannot be used for Other Purposes

Kerala High Court, in Haridas v. State of Kerala, 2016 (5) KHC 615 (K. Vinodchandran, J.), had taken a view that when land is assigned for specific purposes, it cannot be said that if there is no prohibition in using it for any other purpose then, an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. Among others, it was further observed therein that the essence is in the assignment made, for a specific purpose, which survives time and tide. (Referred to in: Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679).

Subsequent Assignees of Pattaadar Cannot Claim More Rights

In R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707, held further as under:

“8. … The title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.
9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. …. The original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.
10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. …. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment ….. . These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.
13. … It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activities without noticing the embargo created insofar as the constructions intended at promoting commercial activity.
14. … The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. ….
16. …. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.
17. … The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. …
20. … The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. ….
21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. …”

Forfeiture on Claim of Ownership By ‘Grantee’

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

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

The answer is – Yes. Following are the reasons:

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

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

Right of Forfeiture is a right arose in Common Law

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

Section 111, Transfer of Property Act reads as under:

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

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

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

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

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

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

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

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

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

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

The answer is, No.

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

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

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

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

Plantation activity is not a simple “agriculture” activity

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

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

End Notes

Grant Deeds Usually Bear the Caption “Title Deeds”

The word title conveys the general idea of ownership or entitlement. It need not always signify absolute ownership in the strict legal sense. Guidance may be drawn from Section 15 of the Easements Act, 1882.

Sec. 15 Easement Act

Sec. 15 Easement Act reads as under:

“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”

What does “claiming title thereto” Mean in this Context?

Answer: Title is not confined to ownership of property; it may also denote a legally recognised right or entitlement, such as an easement.

Peacock in his treatise, “Law Relating to Easements in British India”, Third Edn., at page 608 said as under:

“As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“.

Quoting Peacock, in Surendrasingh v. Phirosahah, (Sinha C.J. and Hidayatullah, J.), AIR 1953 Nag. 205, it is held as under:

“No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

Gale on Easements (15th Edn.),Pages 415, reads as under:

“Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

Mulla – Code of Civil Procedure (14th Edn.) Volume II, at page 986, states the law thus :

“Easement — A party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant.”

‘Title Thereto’ refers to Title of an Easement

Though the word ‘title’ is now generally used to denote absolute ownership, in the Indian Easements Act, 1882, the phrase ‘title thereto’ refers specifically to the title of an easement.

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