Bakranath Singh; The Secretary of State For India In Council vs Nilmoni Singh Deo

B. Peacock, J. 1. This is an appeal from a decree of the High Court at Calcutta. The appellant is Raja Nilmoni Singh, the raja and zamindar of Pachit. He was the defendant in the suit out of which the appeal arises, and which was brought against him by the respondent, Bakranath Singh, for confirmation of possession of a jaghir mehal, consisting of Mauza Dhekia and other mauzas specified in the schedule to the plaint, by establishing his title to the same, and reversing a summary order of the 10th of August 1874. 2. It appears that the appellant, having obtained a decree against Sir Singh, the father of the respondent, for the sum of Rs. 72 odd, awarded to him for costs, had caused the mauzas in question to be attached in execution of the decree; and that, on the 11th June 1874, a proclamation was issued for the sale of the right, title, and interest of the judgment-debtor therein on the 10th of August in that year. In the proclamation the plaintiff was described erroneously as the judgment-debtor, whereas he was only the heir-at-law against whom the decree had been revived after the death of his father, Sir Singh. 3. On the day appointed for the sale, the respondent presented a petition, stating that he was not in possession of any property of the deceased judgment-debtor, and that the Government jaghir mehal could not be sold on account of the debts of the deceased; that, since the death of his father, the late Sir Singh, he had been appointed jaghirdar; and was in possession of the mauzas attached as ghatwal appointed on the part of Government; that the decree-holder, without describing the mauzas to be jaghir, and without stating the nature of his father''s interest therein, had secretly done the acts relating to the execution of his decree; and that the petitioner, having received information that the jaghir mehals would be sold on the 10th of August, had presented the petition stating his objections. Upon that petition the summary order referred to in the plaint was passed by the Munsif;-"This petition of claim has been filed to-day just before the sale; the claim cannot be allowed at such a time. It is ordered that the petition of claim be rejected." The sale accordingly took place, and the present appellant became the purchaser. 4. The suit, out of which this appeal arises, was originally instituted in the Court of the Munsif of Choki Gangajalghati, in the District of West Burdwan, and the Secretary of State for India was made a pro forma defendant. The suit was subsequently removed into the Court of the Judge of West Burdwan. 5. The Government put in a written statement, in which they alleged that the lands were police service lands, and that they had been held by jaghirdars in lieu of wages for the performance of police duties from before the Permanent Settlement, as had been formerly determined in the presence of the Raja defendant by the Deputy Commissioner of Manbhum, in case No. 105 of 1863, and the several Courts of appeal; that the lands not being transferable, and the Raja defendant having caused them to be sold without any specification that they were service lands, and having himself purchased them at the sale, could acquire no title by the purchase. 6. The Raja defendant, in his written statement, contended, amongst other things, that the mauzas were not a jaghir constituting Government property but part of his permanently settled mal estates, and that they had been granted by his father to the plaintiff''s father as a service tenure. 7. Further, he made the following statement:

Third ''Taruf Dhekia,'' in which these mauzas are comprised, was divided into two (equal) parts, one of which is plaintiff''s ancestral property, and the other was enjoyed by Dhurmo Das Chuckerbutty as a service tenure in the manner described above. Subsequently, the half share of Taruf Dhekia, held by the said Dhurmo Das, having been sold by auction for arrears of rent, his grandson, Udoy Chuckerbutty, brought a civil suit to set aside the sale, alleging the share to be Government jaghir property; but, in the judgment of the High Court, the suit was dismissed, on declaration that the disputed estates appertained to the mal land, and in rejection of the allegation as to the Government jaghir lien, as will appear from the decision. Therefore, the plaintiff''s suit is evidently false. 8. The plaintiff himself was examined, and stated that his profession was that of a ghatwali jaghirdar; that he was jaghirdar of Ghat Dhekia; that he was appointed in 1273 by the Magistrate of Bancoora, and served the Government and carried out the orders issued by the thanna; that the jaghir lands did not remain in his possession unless he performed the services; that the person who is appointed in the place of a dismissed ghatwal holds possession of the land; that, after his appointment, the sub-inspector put him into possession; and that he never did any service for the Raja, and did not receive any permission from the Raja on his appointment. 9. Amongst other issues, the following were raised: 2nd.-Whether the status or condition of the lands as Government service,-i.e., ghatwali or jaghir,-had been decided in a former suit by a Court of competent jurisdiction? 3rd.-Whether the land in suit was held by the plaintiff as service land,-i.e., ghatwali or jaghir-under Government, or as service land under the defendant, Raja Nilmonee Singh? 4th.-Whether the land was land on account of which rent was paid to the Raja by the Raja''s appointee, and whether this rendered the tenure a saleable one? 5th.-Whether the plaintiff''s interest in the land was such an interest as admitted of being brought to sale in satisfaction of a decree due from the plaintiff''s predecessor to the Raja. 10. The case was tried by the Officiating Judge of West Burdwan. On the trial the Government accepted the full burthen of the suit, and supported, the plaintiff. It still holds the same position, having been made a respondent, and having appeared by Counsel before their Lordships and opposed the appeal. 11. The only substantial question to be decided is, whether the mauzas in question, which had been held by the plaintiff''s father during his lifetime, and which at his death descended to the plaintiff as his heir, and to which the plaintiff was appointed by Government, were liable to be seized in execution of a decree against the father as assets by descent in the hands of the plaintiff, his son. 12. Neither the origin of the jaghir, nor the precise time at which it was created, is known; but it appears that, as far back as 1771, corresponding with 1178 B.S., the villages of which it was composed were held by jaghirdars, who paid to Government two-thirds of the annual value thereof as revenue, and retained the other one-third as remuneration for the services under which the jaghir was held. The villages included in the jaghir were permanently settled as part of the zamindari of Pachit, of which the defendant, appellant, is the zamindar. In fixing the Government revenue at the time of the Decennial Settlement, the lands included in the jaghir were assessed at the two-thirds then payable by the jaghirdar to the Government, and the one-third retained by the jaghirdar in lieu of services formed no part of the assets of the zamindari in respect of which the Government revenue was fixed. 13. Jaghirdars were successively appointed or approved by Government up to the time of Gurucharn Mukerji, who was appointed in 1816 in the place of Rup Singh, who was dismissed for misconduct. 14. In February 1817, Gurucharn petitioned the Magistrate for leave to associate Dhurmo Das Chuckerbutty with himself as headman; this was sanctioned, and they divided the jaghir and the duties. On the death of Gurucharn, his son applied to, be installed as his successor, but Rup Singh having applied to be reinstated, his application was granted. In 1834, Rup Singh attempted to oust Dhurmo Das Chuckerbutty, but this was not allowed, and the jaghir has ever since remained divided. 15. In was contended, on behalf of the appellant, that, as the lands, were included in his permanently settled zamindari, the services as well as the rent belonged to him; that the services were private services, and that he had a right to cause the lands to be sold in execution of his decree. 16. In support of his case, the decision of the High Court referred to in the Raja''s written statement was cited. It is set out in the appendix to the record, and was in a suit brought against the, Raja by Udoy Chuckerbutty, who had been appointed successor of Dhurmo Das Chuckerbutty, to obtain possession of the mauzas which constituted that portion of the jaghir, which, upon the division of it, had been allotted to Dhurmo Das, whose right and interest had been sold by the Raja in execution of a decree for rent obtained by the Raja against him. The Government was a party to that suit, and supported the claim of the plaintiff therein. The first Court held that the plaintiff had a right to recover possession of the jaghir lands, but that decision was reversed on appeal by the High Court. In speaking of that case, the Officiating Judge in the present case remarked: "It is not relevant as evidence in this case, but is useful as a precedent or in argument. The Court found in that case that the services exacted by Government were encroachments of the Raja''s rights, and that the duties,-i.e. service,-attached to the holding of the land, and not the holding of the land to the appointment to perform the duties. With respect to the lands in dispute I have to remark that the Raja''s evidence in this case, as well as that of the Government, shows that the opposite is true in this case." Then, after referring to the evidence, he says: "I therefore conclude that the performance of the services is the chief title to the jaghir lands, and that no man has any right to hold these lands except on a title arising out of a valid appointment to discharge the services; to adopt the words of the High Court''s judgment," or rather the converse of it, "to the facts of the case, ''the holding of the lands attaches to the duties, and not the performance of the duties to the holding of the land.''" On the 3rd issue he found that the land in suit was land held by the plaintiff, Bakranath Singh, as service under Government, i.e., not ghatwali but jaghir land, and was not held as service under the Raja. On the 4th issue he found that the land in suit was not land on account of which rent was paid to the Raja by the Raja''s appointees; and on the 5th, that the plaintiff''s interest in the lands was not such as admitted of its being brought: absolutely, and without special conditions, to sale in satisfaction of a decree due from the plaintiff, or his predecessor, to the Raja; but that the interest was saleable for the purpose aforesaid, provided it be sold subject to the performance of the jaghir services by the purchaser, after he has obtained appointment to the duties at the hands of the Magistrate or his representative police authorities, and installation by the same authorities. He accordingly annulled the sale of the lands under the execution, set aside the summary order of the Munsif, and declared that the plaintiff had a right to continue in possession as the service tenant of the Government, and as the rent-paying tenant to the plaintiff. The case was appealed to the High Court. The appeal was heard by a Division Bench, consisting of Mr. Justice Markby and Mr. Justice Romesh Chunder Mitter, J., who differed in opinion. The decree of the Officiating Judge was reversed, and the suit dismissed in accordance with the opinion of the Senior Judge, Mr. Justice Markby, Mr. Justice Romesh Chunder Mitter, J. dissenting, and holding that the decree ought to be affirmed. 17. Mr. Justice Markby agreed with the Officiating Judge that the Raja had not shown that the plaintiff held as his appointee; he relied upon the fact that the lands were part of the revenue-paying lands of the Raja, and also upon an admission of the Advocate-General, on, behalf of the Government, that the tenure was an hereditary one, unless there was some special objection to the person entitled to succeed. He also relied very strongly upon the decision in Udoy Chund Chuckerbutty''s case, already referred to, and added,-"An appeal against this decision was lodged in the Privy Council by the Government, but it has not been prosecuted; and it is admitted that there is no intention to prosecute it." He stated that he thought it was his plain duty to follow the former decision, unless he had the clearest possible reasons for differing from it; and that so far from differing from the decision, having considered the evidence and heard the arguments, he entirely concurred in it. He then proceeded to discuss the question whether the fact that the holders of the lands were liable to perform some services of an exceedingly indefinite. character, but something of a police kind, to Government, took away from this tenure the character of alienability, which it would otherwise possess, and expressed his opinion that it did not. 18. An appeal was preferred under Section 15 of the Letters Patent of the High Court from the decree of the Division Bench to the High Court, and was heard by Mr. Louis S. Jackson, then Officiating Chief Justice, Mr. Justice Ainslie, and Mr. Justice Sewell-White, when the decree of the Division Bench was reversed, and the decree of the first Court affirmed, by a majority consisting of the Acting Chief Justice and Mr. Justice Sewell White against the opinion of Mr. Justice Ainslie. Their Lordships concur generally in the view taken by Mr. Justice Romesh Chunder Mitter, J. and the Acting Chief Justice, and are of opinion that the decree now under appeal ought to be affirmed. The judgment of Mr. Justice White was founded merely upon the form of the proclamation; he concurred with the first Court in holding that, as the proclamation did not describe the lands as held under a service-tenure, the sale to the Raja, under the execution, passed no title to the property; and he abstained from expressing an opinion upon the question as to which Mr. Justice Markby and Mr. Justice Romesh Chunder Mitter differed,-viz., whether the interest of the plaintiff''s deceased father in the lands was such, that when they came into the possession of the plaintiff they were assets of the father and as such liable to be attached and sold for his debts. 19. According to the report of Lalla Kanji, Tahsildar of Pachit, made on the. 18th of July 1799, it appears that there were in Chakla Pachit, in addition to the digwars, three other classes of guards, whom he describes as jaghirdars, as ghatwals, and chauckidars. He says of the first, they hold their mauzas in jaghir, and whenever the digwars require assistance in arresting thieves or rioters, the jaghirdars assist them with their men. Of the second, that is the ghatwals, he says the second were posted at the ghats, 36 in number. In 23 of those the ghatwals were subordinate to the digwars, and were paid by them out of their jaghirs; 13 are occupied by the Raja''s own immediate servants paid by him. 20. It is clear that the jaghirdar in question was not one of the ghatwals, referred to in the report as being subordinate to, and paid by, the digwars out of their jaghirs, for they were paid by the one-third of the malguzari, which they wore allowed to retain as a compensation for their services. 21. Mr. Justice Romesh Chunder Mitter, J. held that the tenure in question was analogous to a ghatwali tenure. Mr. Justice Ainslie treated it as one of the ghatwalis to the south of Birbhum. Their Lordships entertain no doubt that, whether it was a ghatwali or not, the tenure was analogous to a ghatwali tenure of the nature described in the preamble to Reg. XXIX of 1814; and the Acting Chief Justice appears to have entertained the same view, by referring to Mr. Harington''s Analysis of the Regulations, vol. iii, p. 509, where, after mentioning Reg. XXIX of 1814, he goes on to say,-tenures of this description were mentioned generally in a note to the second volume of this Analysis, as held at a low rent by ghatwals or guards of passes. 22. The preamble to Reg. XXIX of 1814 is as follows: "Whereas the lands hold by the class of persons denominated ghatwals, in the district of Birbhum, form a peculiar tenure to which the provisions of the existing Regulations are not expressly applicable, and whereas every ground exists to believe that according to the former usages and constitution of the country, this class of persons is entitled to hold their lands generation after generation in perpetuity, subject nevertheless to a fixed and established rent to the zamindar of Birbhum, and to the performance of certain duties for the maintenance of the public peace and support of the police." Pachit was formerly one of the parganas and mehals of Zilla Birbhum, but by Reg. XVIII of 1805 was separated from the jurisdiction of the Magistrate of that Zilla; and placed under the jurisdiction of a distinct officer denominated Magistrate of the Jungle Mehals (see Sections 2 and 3 of that Regulation). Their Lordships consider that the jaghir in question, although not falling within the Regulation, was a tenure of the nature of those described in the preamble. In the case of Rajah Nilmoney Singh v. The Government of Bengal 6 W.R. 121 it haying, been found by the lower Courts that the lands were held upon a ghatwali tenure, the High Court upon special appeal held, that they were not resumable by the zamindar, upon the ground that the tenure had been forfeited on account of the tenant''s refusal to perform them. The Chief Justice remarked,-"If the Government received only two-thirds of the annual value of the lands as rent or revenue, and allowed the tenant to retain one-third on account of services, the services must have been public and not private. The Government would not have allowed any portion of their revenue in consideration of private services to be rendered to the Zamindar." 23. That case was affirmed by Her Majesty in Council on appeal 18 W. R P.C., 321. 24. The permanent settlement of the lands did not alter the nature of the jaghir or of the tenure upon which the lands were held, nor could it convert the services which were public into private services under the zamindar. The zamindar became entitled only to the rent or revenue which was previously payable to the Government and in respect of which he was assessed, and not to the services in respect of which the one-third of the rent or revenue was allowed to the tenant as compensation for the services. Those services continued to be due to the Government. 25. In the very luminous judgment pronounced by Lord Kingsdown in the case of Rajah Lelanund Singh v. The Government of Bengal 6 Moore''s I.A. 101 the origin and nature of the ghatwali tenures of Birbhum, and the effect of the Permanent Settlement thereon, were fully explained, and it was there held that lands hold under that tenure were not resumable by Government under Beng. Reg. I of 1793, Section 8, Clause 4, as lands included in the allowances to zamindars'' for than a or police establishments. In that case it was no doubt held, that it was the province of the Raja of Khurruckpore to appoint and dismiss the ghatwals (p. 127), but it was also stated that ghatwals held their lands in virtue of sanads granted by the zamindar, except some who had received theirs from the former authorities (p. 123); it was also found that in that case the lands had been granted by the ancestors of the Raja (p. 112), and it was said that the Regulation did not apply to lands which the zamindars had permitted other persons to hold free from rent, or at a reduced rent, or (referring to the cases in which the sanads had not been granted by the zamindar to lands which such persons had a right to hold free from rent or at a reduced rent. 26. The above cases show that the jaghirs of which the lands in question formed one, and which were expressly found, in the case above referred to between the appellant and Bir Singh, the father of the plaintiff, and also in the present case, to be analogous to the ghatwali holdings of Birbhum, are not resumable by the zamindar or by the Government. 27. In the case of Hurlal Singh v. Jorawan Singh 6 Sel. Rep. 204 Ed. of 1873 cited with approbation by Lord Kingsdown, in 6 Moore, 125, it was held, that the ghatwali tenures were not divisible on the death of a ghatwal, but descended to the eldest son. 28. In delivering the judgment in that case Mr. F.C. Smith said,-"Reg. XXIX of 1814 says nothing on the subject; the point must, therefore, be decided with reference to the usual practice and the meaning and the intent of the term ghatwal.'' Now the ghatwali lands are granted for particular purposes, especially of police, and to divide them into small portions amongst the heirs of the ghatwals would be to defeat the very ends for which the grants were made. I have submitted the question to the Judges of the Court, and all, with one exception, are of opinion, that a mehal of this nature cannot be divided, but should, on the death of an incumbent, devolve entirely on the eldest son, or the next ghatwal." 29. It was stated by Mr. D.C. Smith, one of the Judges consulted, that the chakeran lands of Bengal always go to the eldest son or to the nearest member of the family most capable of performing the duty. See also Kustoora Koomaree v. Monohur Deo W.R., Sp. No. p. 39. 30. The jaghirs, although hereditary, are not governed by the ordinary rules of inheritance, under the Hindu or Mahomedan law, and are subject to the condition of the Government''s approval of the heir. 31. The same principle which precludes a division of a tenure upon death must also apply to a division by alienation. Their Lordships are of opinion that the tenure is not transferable or saleable in execution of a decree, and that it is not one of the tenures referred to by the Beng. Reg. XXXVII of 1793, Section 15. 32. In the case of Rajah Lelanund Singh v. Doorgabutty W.R.; Sp. No. p. 249 it was held, that the ghatwalis of Khurruckpore were not capable of alienation by private sale or otherwise, nor liable to sale in execution of decrees except with the consent of the zamindar and his approval of the purchaser as a substitute for the outgoing ghatwal. In that case, however, as in the case already cited from 6 Moore''s Indian Appeals, the ghatwal had been appointed by the Raja, and the Raja, and not the Government, as in the present case, had a right to appoint and dismiss the ghatwal. 33. In the case of Binode Ram Sein v. The Deputy Commissioner of the Sonthal Parganas 7 W.R. 178 it was held, and in their Lordships'' opinion rightly, that the surplus proceeds of a Birbhum ghatwali tenure, which had passed by decent from ancestor to heir, were not liable, in the hands of the heir, for the debts of the ancestor; and reference was made to a decision, of Mr. Hawkins in the Sudder Court, 2 Sevestre''s Reports, 423, in which it was held that the lands were not alienable. 34. In a case also between the appellant and the respondent Bakranath Singh it was held, that the holder of the tenure in question in this suit is not responsible for the debts of a former jaghirdar. The Deputy Commissioner in his judgment said,-"As jaghirdar, the defendant has, what his father had, a life-interest in the jaghir. Whether the son will succeed or not is, notwithstanding the tenure is hereditary, uncertain, as he may at any moment be dismissed from Government employ," rather he should have said may never be sanctioned as jaghirdar.'' He proceeds,-The jaghir is strictly a life-tenure as far as the jaghirdar is personally concerned, he holds the land in lieu of pay, and a new jaghirdar receiving the jaghir would not be bound by any arrangement made by his predecessor. A newly elected jaghirdar would not be held responsible for debts incurred by the late jaghirdar as such, as were he to be so, he would lose the benefit of his pay. Thus, a jaghirdar cannot be held responsible for arrears of rent due by a former jaghirdar." That decision was upheld on appeal to the High Court 10 W.R., 255. The case is expressly in point, for if a successor is not liable for rent of the jaghir due from his predecessor, it follows a fortiori that he cannot be liable for an ordinary debt. It is unnecessary to decide whether the decision is res judicata or not. 35. The above decisions are more than sufficient to outweigh the decision in the case of Udoy Chand Chuckerbutty (unreported) to which Mr. Justice Markby attached so much weight, even if that case had not been decided upon a different finding of facts. Their Lordships, however, are of opinion that the learned Judges took an erroneous view in that case of the effect of the Permanent Settlement. 36. With reference to the argument upon which Mr. Justice Ainslie so strongly relied as to the difficulty under which the zamindar would lie for the recovery of his rent if the lands could not be sold in execution of a decree for rent against his tenant, it is sufficient to say that the zamindar, at the time of the Permanent Settlement, must have been aware of the nature of the tenure upon which the lands were held, and that this case does not involve the necessity of deciding what remedy the zamindar has for recovering his rent, whether by sequestration of the estate or by application to the Government to remove the tenant, or by what other mode. Their Lordships, therefore, abstain from expressing any opinion which would be a mere obiter dictum upon the point. 37. It is quite clear that, if the jaghir were transferable without the consent of Government, either by descent to an heir, or by voluntary sale, or sale in execution, or otherwise, there would be no security that the transferee would be a proper person to discharge the duties in respect of which the lands are held at the reduced rent. The transferee might be a person of questionable or even of bad character, as remarked by the Court in 10 W.R., 240. 38. For the above reasons, their Lordships will humbly advise Her Majesty to affirm the decree of the High Court, from which the appeal has been preferred, and to dismiss the appeal. 39. The appellant must pay the costs of the appeal.