Judgement

SUBBA RAO, C.J. : This is an appeal against the judgment of our learned brother Satyanarayana Raju, J., dismissing the petition filed by the appellant under Art. 226 of the Constitution of India.

2. The facts that gave rise to the appeal may be briefly stated. The village of Narasapuram in Tiruvur taluk was notified as a zamindari estate under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act (hereinafter referred to as the Act) with effect from 7th September 1950. The petitioner, who is the land-holder of the said village, filed an application under Ss. 12 and 15 (1) of the said Act for the issue of a ryotwari patta in respect of certain dry lands bearing S. Nos. 219/9 and 347 of the extent of 58 cents and 1 acre 76 cents respectively. The said two items were purchased by him from ryots in March 1947. The Settlement Officer and, on appeal, the Estates Abolition Tribunal, held that, as the said items were purchased subsequent to 1st July 1945, the petitioner was not entitled to have a patta under S. 12 (b) (ii) of the Act. Satyanarayana Raju, J., who heard the Writ Petition, agreed with them in their conclusion. The first question raised before us is that the conclusion of the learned Judge on the interpretation of S. 12 (b) is wrong. Section 12 reads :

"In the case of a zamindari estate, the land-holder shall, with effect on and from the notified date, be entitled to a roytwari patta in respect of -

(b) (i) all lands which were properly included, or which ought to have been properly included, in the holding of a ryot and which have been acquired by the land-holder, by inheritance or succession under a Will, provided that the land-holder has cultivated such lands himself, by his own servants or by hired labour, with his own or hired stock, in the ordinary course of husbandry from the date of such acquisition or the 1st day of July 1939, whichever is later and has been in direct and continuous possession of such lands from such later date;

(ii) all lands which were properly included, or which ought to have been properly included, in the holding of a ryot and which have been acquired by the land-holder by purchase, exchange or gift, but not including purchase at a sale for arrears of rent, provided that the land-holder has cultivated such lands himself, by his own servants or by hired labour with his own or hired stock, in the ordinary course of husbandry from the 1st day of July 1945, and has been in direct and continuous possession of such lands from that date."

Clause (ii) of sub-s. (b) is invoked in the present case. It is argued that, under the main limb of the clause, a land-holder who purchases lands from a ryot at any time before the Act otherwise than in a sale for arrears of rent is entitled to have a ryotwari patta in respect of that land and that the proviso will apply to a similar purchase made by him before 1st July 1945. In other words, if a land-holder purchases lands from a ryot after 1st July 1945, it is not a necessary condition that he should have been in direct and continuous possession of the lands from, that date. This construction, if accepted, would lead to the anomaly that land-holder purchaser after 1st July 1945, need not be in possession of the land, whereas a land-holder purchaser of an earlier date before he is entitled to a ryotwari patta is subject to an additional condition that he should have been in possession from 1st July 1945. The contention which leads to this unexpected and unjust result cannot be accepted unless the express terms of the clause compels us to do so.

3. In support of the contention, learned counsel relied upon the rule of construction laid down in Cortis v. The Kent Water Works Company, (1827) 108 ER 741 (A). There the question was whether corporations were liable to contribute to poor rate. That question fell to be considered on a construction of the terms of the 16th section of 47, George, Ch. 3, III. By the 16th section the Commissioners are to make rates upon all and every person or persons who do or shall hold, occupy, possess, etc., any land within the parish. The person or persons appealing against the rate were required to enter into a recognisance. As the Corporation could not enter into a recognisance, it was contended that S. 16 could not reach corporations. Without deciding the question whether a corporation was competent to enter into a recognisance but assuming that it could not, Bayley, J., construed the section thus at p. 747 :

"I should say that that part of the clause which gives the appeal applies to all persons capable of appealing, and that the other part of the clause which requires a recognisance to be entered into applies only to those persons who are capable of entering into a recognisance, but is inapplicable to those who are not."

Relying upon the above observations, it is contended that the proviso applied only to land-holders who purchased lands before 1945 and that the condition does not apply to other purchasers, for it is said just in the case cited that the said proviso cannot be confined to the case of persons who cannot possibly comply with that provision. It is one thing to say that, when an express right to appeal is given to a person, a Court will not deprive him of his right for non-compliance with a condition which is not legally or physically possible for him to do and it is another thing to say that, when a limited right is granted to a person, the right can be enlarged by ignoring the limitations of the condition.

4. For the purpose of effectuating the supposed intention of the Legislature, the learned counsel for the appellant attempted to persuade us to add additional words to the proviso and reliance is placed upon the judgment of the Court of appeal in Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481 (B), and particularly on the following passage at p. 499 :-

"A Judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases."

The observations are no doubt graphic and even telling. What the learned counsel contends for is not the straightening out of any ruck in the texture of the section but to remove a portion of it and weave into it a new one. This a Court cannot obviously do.

5. The true rule of construction of a proviso is stated in Maxwell on the Interpretation of Statutes at p. 165 thus :

"There is no rule that the first or enacting part is to be construed without reference to the proviso. The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause and proviso, taken and construed together is to prevail."

So construed, we do not see any repugnance between the enacting limb of the clause and the proviso. The Legislature, for one reason or other, attributes knowledge of the impending legislation as from 1st July 1945. To avoid manipulations and fraudulent acts on the basis of that knowledge, they fixed that date as the date from which a land-holder to be entitled to the benefits of the section should be in direct and continuous possession of the said lands. The Legislature also obviously intended to confer rights only on land-holders who are in direct possession from that date. The section, therefore, enables a land-holder who acquires lands from a ryot by purchase, exchange or gift, to claim ryotwari patta provided he was in possession from 1st July 1945. When a right is subject to a condition, the person claiming the right cannot ignore the condition.

6. Sustenance to the argument is also sought to be derived from cl. (i) of S. 12 (b). Under that clause, a land-holder, who acquires land from a ryot by inheritance or succession under a Will, is entitled to a patta provided he has cultivated the land from the date of the acquisition or from the 1st day of July 1939, whichever is later and has been in direct and continuous possession of such lands from such later date. It is said that the difference in the phraseology used in the two clauses indicates that where the Legislature intended that the proviso should govern all acquisitions irrespective of the date of the acquisition, they have clearly stated so.

On the other hand, the different phraseology used in the two clauses clearly indicates that in the case of cl. (i), the Legislature insisted on direct and continuous possession of the land-holder from the date of the acquisition whereas in the case of cl. (ii) they insisted on direct and continuous possession from 1st July 1945. If the Legislature also intended to impose the condition of direct possession only from the date of purchase, even though that date is subsequent to 1st July 1945, they would have used similar language in cl. (i). The conscious departure in the framing of the proviso in cl. (ii) from that in cl. (i) is indicative of the fact that the condition of direct possession under a purchase from 1st July 1945, is a necessary condition of the right claimable by a land-lord under that clause. We, therefore, hold that the appellant, who purchased lands only in 1947, is not entitled to claim ryotwari patta under S. 12 of the Act.

7. Learned counsel then contended that, though he may not be entitled to a patta as a land-holder under S. 12 of the Act, he would be entitled to have one in his capacity as a purchaser from a ryot under S. 11 of the Act. This contention was not raised either before the Assistant Settlement Officer or before the Estates Abolition Tribunal. The Tribunal, therefore did not consider this point and give its decision thereon. In such circumstances, it is not possible to hold that there is an error apparent on the face of the record :

8. That apart, there are no merits also in the contention. The following provisions of the Act are relied upon in support of the said contention :

"Section 11. - Every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta in respect of -

(a) all ryoti lands which immediately before the notified date, were properly included or ought to have been properly included in his holding and which are not either lanka lands or lands in respect of which a land-holder or some other person is entitled to a ryotwari patta under any other provision of this Act.

Section 64. - Where a person -

(a) is entitled to the ownership or the possession or occupation of any land or building immediately before the notified date, but has transferred his right to the possession or occupation thereof or has been temporarily dispossessed or deprived of his right to the occupation thereof; and

(b) has not on that date lost his right to recover possession or occupation of such land or building; he shall, for the purposes of this Act and subject to the provisions thereof, be deemed to be the owner or to be in possession or occupation, of such lands or building :

Provided that any lawful transferee of the right to the possession or occupation of such land or building shall, save as otherwise expressly provided in this Act, continue to have the same rights against his transferor, as he had immediately before the notified date;

Provided further that any lawful transferee of the title to such land or building shall be entitled to all the rights under this Act of his transferor."

9. The argument is that, under S. 11, every ryot in an estate shall, with effect on and from the notified date, be entitled to a ryotwari patta and, under the second proviso to S. 64, the appellant, being a lawful transferee of the ryots title to the land, would be entitled to the rights of his transferor, i.e., the ryot under S. 11 of the Act. The argument appears to be plausible but, in our view, a clear fallacy underlies it. The right of a ryot under S. 11 is circumscribed by the conditions laid down thereunder. Every quondam ryot before the notified date is not entitled to a ryotwari patta under that section. Every ryot is entitled to a ryotwari patta only in respect of a ryoti land which immediately before the notified date was included or ought to have been properly included in his holding. If he had sold away his ryoti land to a third party before the notified date, he would cease to be a ryot, whose land was included in his holding. Therefore, the purchaser, who satisfied the conditions of S. 11, would be entitled to a ryotwari patta but, under S. 8 of the Madras Estates Land Act,

"whenever before or after the commencement of this Act, the occupancy right in any ryoti land vests in the land-holder he shall have no right to hold the land as a ryot but shall hold it as a land-holder."

10. A combined reading of S. 11 of the Estates (Abolition and Conversion into Ryotwari) Act and S. 8 of the Madras Estates Land Act shows that the transferor of the appellant ceased to be ryot entitled to a patta under S. 11 and that the appellant did not acquire a right thereunder as he held the land only in his capacity as a land-holder. The proviso to S. 64, should be confined only to cases where the transferor is entitled to a right under the Act and, as in the present case he ceased to be a ryot entitled to claim a patta under S. 11, the transferee could not claim rights higher than the transferor himself.

11. In the result, the appeal fails and is dismissed with costs. Advocates fee Rs. 100.

Appeal dismissed.