Bansidhar Sharaff vs Thakur Ashutosh Deo and Another

Ross, J.—This is an appeal from an order of the Subordinate Judge of the Santal Parganas refusing an application for attachment and sale of the right, title and interest of the judgment-debtor in a ghatwali tenure consisting of taluqs Rohini Tilijuri, Satar, Gamardiha and Sardha Kokra in execution of a decree obtained against him. Among the grounds of the application were these: "That the ghatwals, as they are at present, enjoy their estate without doing anything or rendering any service whatsoever save and except paying a lump sum for the maintenance of the village chowkidars and for keeping watch over the villages held by them;" and "that inasmuch as the Government has commuted for a money payment the services due from the ghatwals, at the present time their liability to Police service has taken the form of money payment towards the maintenance of village chowkidars and the Government will not be prejudiced in any way by the tenure in question being sold, it having released the ghatwals from their liability to perform police service subject to a money payment by the ghatwals in the shape of the chowkidari dues." In a petition of which a copy was annexed to the application for execution, the decree-holder narrated the facts leading to the appointment of a Receiver of the income of the Rohini estate for the satisfaction of certain decrees held against the ghatwal; and, on the ground that the payments made by the Receiver to the decree-holders were inadequate, he applied for the sanction of the Government to the sale of the tenure. In his reply to the application the judgment-debtor stated that Birbhum ghatwalis like Rohini are, under the law and immemorial custom and usage not liable to sale; but did not traverse the allegation that the services had been commuted to a money payment. The learned Subordinate Judge in his order discussed the various decisions which establish the inalienability of the Birbhum ghatwalis and on the strength of these decisions refused the application. With regard to the question of commutation all that he said was this: "That the services to be rendered by the ghatwal have at present been commuted to a money payment does not alter the character of the incidents of the tenure which, from the decisions referred to above, is clearly inalienable and not liable to sale for the personal debts of the ghatwal."

In appeal it has been contended that the services attached to this ghatwali have been commuted for a money payment and that consequently the reason for the inalienability has ceased and the inalienability itself has, therefore, ceased; and, secondly, that in any view, the life-interest of the judgment-debtor is saleable.

I shall deal first with the second argument. It was argued from the following words in the preamble to Act V of 1859, "It is expedient that the power of granting leases for periods not limited by the term of their own possession should in certain cases be extended to the possessors of such lands" that the ghatwal always had a power of leasing for his life and that consequently his life-interest is saleable. It is true that the power of leasing for life is recognised, but no other form of alienation is recognised; and, in my opinion, it cannot be inferred from the words quoted that the life-interest of the ghatwal can be sold in execution.

The main argument, however, is on the point of commutation. It is conceded by the appellant that the Birbhum ghatwalis were inalienable--see for example Sartukchunder Dey v. Bhugut Bharutchunder Singh 9 S.D.A.R. 900 : 13 Ind. Dec. (O.S.) 82 and Bally Dobey v. Ganei Deo 9 C. 388 : 5 Shome L.R. 122 : 4 Ind. Dec. (N.S.) 907, a case which refers to the Rohini ghatwali where it was observed that the tenure had been repeatedly held by the Court not to be liable for debt. It is unnecessary to refer to the decisions at length because the point is conceded.

The learned Vakil for the appellant referred to the Regulations and Statute governing this tenure. In Section 1 of Regulation XXIX of 1814, the Birbhum ghatwali Regulation, reference is made to the fact that the ghatwals held their lands in perpetuity subject to the payment of a fixed and established rent to the zemindar of Birbhun "and to the performance of certain duties for the maintenance of the public peace and support of the Police." Act V of 1859 is a legislative recognition of the fact that the ghatwals have not the power of alienating their lands, and gives power to grant leases for terms extending beyond the lifetime of the ghatwal in certain cases for the development of the mineral resources of the country and for the improvement of the lands. Then came the Police Regulation III of 1900. This is now superseded by Regulation IV of 1910 which was enacted for the organization and maintenance of the rural Police in the Santal Parganas and applies to Tapeh Sarath Deoghar within which the Rohini ghatwali is situated.

The Regulation empowers the Deputy Commissioner to form circles and to appoint Sardars for each circle (Section 4); the Sardar may appoint a Deputy Sardar subject to the approval of the Deputy Commissioner (Section 5) and the Deputy Commissioner is to determine the number of chowkidars to be employed (Section 6). Section 7 of the Regulation empowers the Deputy Commissioner to determine the amount required for the salaries and equipment of the Sardars, Deputy Sardars and chowkidars; and Section 8, which is the important section in this connection, enacts as follows: "Where a zemindar or under tenure-holder holds subject to the condition, expressed or implied of supporting the Police within his zemindari or under tenure, he shall be liable to pay the amount determined by the Deputy Commissioner u/s 7." It may be noted that by the definition in Section 3 the ghatwal of Rohini is a "zemindar." The argument is that the payment of the amount determined by the Deputy Commissioner for the support of the rural Police established by the Regulation takes the place of the Police services that have been required from the ghatwal and that, therefore, the condition of inalienability had ceased to attach to the tenure. It is contended that no duty is now imposed upon ghatwal except a money payment which requires no personal qualification and stands on no different footing from the payment of ordinary Government dues. The personal service has been released and has been commuted for a money payment. To use the word of their Lordships of the Judicial Committee in Kumar Satya Narain Singh v. Raja Satya Niranjan Chakravarti 79 Ind. Cas. 825 : 3 Pat. 183 at pp. 205. 217 : A.I.R.1924 (P.C.) 5 : 28 C.W.N. 351 : 5 P.L.T. 171 : 51 I.A. 37 (P.C.): "The lands are merely subjected to a pecuniary charge, so that the personality or the appointment of the holder would be of no importance." Reference was made to the decision in Radha Bai v. Anantrav 9 B. 198 : 5 Ind. Dec. (N.S.) 133, where the following passage occurs in the judgment of West, J., "So long as lands are assigned by the sovereign to the support of a public office or the land-tax payable on lands is remitted in consideration of services to be performed by a particular family or line of holders, the lands are, according to the principles of the Hindu Law and the Customary Law of the country, incapable of an alienation or disposal such as to divert them, or the proceeds of them, from the intended purpose.... When an estate is freed from its connection with a public office, the reason arising from that connection for the preservation of the estate, in tact and unencumbered, necessarily fails. There is not in the lands themselves, according to the Hindu Law, any inherent quality limiting them to special kinds of ownership and devolution. They become subject to the ordinary laws of descent and disposal, just as where a particular custom concerning them has been abandoned." See also Bhagwat Buksh Roy v. Sheo Pershad Sahu 21 Ind. Cas. 481 : 18 C.W.N. 297 at p. 309 : 18. C.L.J. 277, where it is said: "On principle it may well be maintained that when service can no longer be enforced and the tenure consequently ceases to be a service tenure, the land can be alienated: when an estate is freed from the burden of service, the reason for the preservation of the estate as inalienable disappears: alienation can be prohibited only with a view to prevent the permanent severance of the estate from the services annexed to it."

In reply the learned Counsel for the respondent argued in the first place on Section 2 Regulation IV of 1910, which empowers the Local Government by a notification in Gazette to withdraw the Regulation or any part thereof from any portion of the Santal Parganas and to extend the Regulation or any part thereof to any portion of the Santal Parganas from which the same has been so withdrawn, that the Regulation is of a temporary character and cannot affect the permanent incidents of the ghatwali tenures. In my opinion there is nothing in this section to justify the contention that the Regulation is a temporary measure. It is a permanent enactment; and the fact that the power to extend or withdraw its provisions has been entrusted to the Local Government does not affect its permanent character. It was suggested that if the services were taken to have been commuted while the Regulation was in force, the withdrawal of the Regulation, which might occur at any time, would reestablish the duty of Police service in the tenure and that consequently it could not have been the intention of the Regulation to commute the services. This suggestion, however, is contrary to one of the recognized principles of Statute Law. If a right has once been acquired by virtue of some Statute, it will not be taken away again by the repeal of the Statute under which it was acquired. "The law itself" says Puffendorf in his Law of Nature and Nations, Book I, Chap. VI, Section 6 "may be disannulled by the author; but the rights acquired by virtue of that law whilst in force still remain; for together with a law to take away all its precedent effects would be a high piece of injustice" (Craies on Statute Law, 3rd Edition, page 347) This principle is expressly recognized by Section 6 of the General Clauses Act (X of 1897) which provides that the repeal of an Act shall not affect any right, privilege, obligation or liability acquired, created or incurred under any enactment so repealed.

In the second place it was contended for the respondent that there has, in fact, been no commutation. This argument rests on a construction of the words quoted above from Section 1 of Regulation XXIX of 1814, "subject to the performance of certain duties for the maintenance of the public peace and support of the Police." It is argued that all that has been commuted is the duty of support of the Police and that the duties for the maintenance of the public peace remain unimpaired and the tenure, therefore, remains inalienable. It is pointed out that, in Section 8 of Regulation IV of 1910 the words are "subject to the condition, expressed or implied, of supporting the Police." It is argued that this expression by necessary implication leaves the duty of maintenance of the public peace unimpaired and uncommuted.

Learned Counsel supported his argument by a reference to the kabuliyat and mochelka executed by the present ghatwal in 1911, that is, subsequently to the passing of Regulation IV of 1910. He contended that the mochelka provides for the performance of duties personal to the ghatwal beyond the duty of supporting the Police and that these duties have not been commuted by the Regulation.

The learned Government Advocate, who was heard as amicus curiae on behalf of the Government (not a party), supported the argument of the respondent. He contended that the ghatwal was liable for duties of two kinds; first personal duties, and, secondly, duties performed by others under him employed by him and paid by him. What was done by Regulation IV of 1910 was that the amount of money which the ghatwal had to pay to his chowkidars was commuted for a lump sum, to be paid to the Deputy Commissioner of the District who, in turn, paid the chowkidars, and the chowkidars thus became the officers of the Deputy Commissioner; but the personal services of the ghatwal remained in tact. It was argued on the proviso to Section 4 of the Regulation that the ghatwal becomes a Sardar of the circle formed under that section and that power is given by Section 25 to the Local Government to make rules regulating, among other things, the appointment and dismissal of Sardars. It was argued that under the Regulation the ghatwal is still liable to dismissal by Deputy Commissioner and that, therefore, his personal liability remains and the duties of performing the function of Sardar have been commuted.

I shall deal first with the argument of the learned Government Advocate which, in my opinion, is unsound. The proviso to Section 4 does not necessitate the appointment of a ghatwal as Sardar. It merely provides "that, in the damin-i-koh and in the ghatwalis subject to the provisions of the Bengal Ghatwali Lands Regulation, 1814, the circles shall be so formed as to admit of the duties of Sardar being performed by parganaits, Sardars or ghatwals, as the case may be, according to existing arrangements". This merely means that the circles are to be such as to admit of the possibility of the performance of the duties of Sardar by the existing ghatwal: it does not mean that the existing ghatwal is necessarily to be appointed Sardar. The learned Government Advocate was unable to say whether the appellant had been appointed Sardar; and, as the Rohini ghatwali is an estate of large extent, it appears unlikely that the ghatwal should be a Sardar within the meaning of the Regulation whose salary is fixed between the limits of Rs. 8 and Rs. 12 a month. In any case, even if he had been appointed Sardar, the power of dismissal would affect his appointment as Sardar only and not his position as ghatwal, because he is in reality a different person when performing the duties of Sardar from what he is as ghatwal. It may be noted that the regular Police administration is enforced in the Deoghar Sub-Division (see Gazetteer of the Santal Parganas, page 232) and that the rules, which were framed u/s 24 of Regulation III of 1900 corresponding to Section 25 of Regulation IV of 1910, are rules applicable to the Police tracts other than the Deoghar Sub-Division (see the Santal Parganas Manual 1911 at page 110). There is, therefore, no foundation in fact for the argument which has been based upon the proviso to Section 4 and on Section 25 of the Regulation. The rest of the argument of the learned Government Advocate is the same as that advanced on behalf of the respondent and requires an examination of the terms of the kabuliyat and mochelka. Now these terms must be construed in the light of the provisions of Regulation XXIX of 1814 by which it is recognized that the ghatwals therein referred to are entitled to hold their lands generation after generation in perpetuity subject to the payment of a fixed and established rent to the zemindar of Birbhum and to the performance of certain duties for the maintenance of the public peace and support of the Police. The duties imposed by the kabuliyat and mochelka must, therefore, be duties for the maintenance of the public peace and support of the Police. It is conceded that the duties of supporting the Police have been commuted; but it is contended that the mochelka contains terms which impose duties of a personal nature on the ghatwal other than duties of supporting the Police. Learned Counsel referred first to the clause of the mochelka under which the ghatwal undertakes to continue as before arrangement of amlas. This, in my opinion, is nothing more tran an undertaking to respect the law regulating the appointment of officials such as patwaris. He next referred to the clause. "Whenever pilgrims and other persons pass through my taluk I will take them from my jurisdiction to another jurisdiction and make them over to the chowkidar of the same." It is contended that this is a personal duty which has nothing to do with supporting the Police. It is, however, clearly not a personal duty as it would be physically impossible for the ghatwal himself to conduct the pilgrims and other travellers through his taluk. There is a further duty to lodge information of any dacoity, highway robbery, murder and other petty or serious occurrence happening within his taluk and to enquire into it. This is an ordinary zemindari duty. The ghatwal also undertakes not to discharge, without the orders of the Government, such persons under him as have been engaged in doing Police duties, and if it be found necessary to discharge any such person then he will first send an information thereof and report his faults to the authorities and abide by such orders as will be passed by them. This duty has clearly passed away with the control of the chowkidars and is now vested in the Deputy Commissioner by the Regulation, as has also the duty of submitting a list every year to the authorities of such persons as serve under the ghatwal. I can find nothing in this mochelka imposing'' any duty of a special character distinguishable from the duties of an ordinary zemindar with respect to the maintenance of the public peace upon the ghatwal. The duties are the duties imposed by the ordinary zemindari sanad (see Regulation I of 1793, Section 1: the Fifth Report (Firminger, Vol. I, page xlvi); and Sir John Shore''s Minute, para. 166; and the examples of sanad and mochelka in Phillips on the Land Tenures of Lower Bengal, pages 478 and 479). At page 106 Phillips says that "The sanad says what were the duties of the zemindar and that they were duties devolving upon him as a representative of the Government in respect of the revenue as well as in respect of the preservation of order. He was also bound, it seems, to assist the sovereign, in case of invasion. He was further responsible for the peace and order of zemindari." It is only the duty of supporting the Police imposed by Section 1 of Regulation XXIX of 1814 which distinguishes the position of the Birbhum ghatwals from that of the ordinary zemindars, and it is this duty of supporting the Police which is expressly dealt with in Regulation IV of 1910. As that duty has been commuted for a money payment, it appears to me that nothing is left beyond the duties of the ordinary zemindar.

Learned Counsel for the respondent also referred to Act V of 1859 and contended that the necessity for obtaining the sanction of the Commissioner of the Division to leases granted under that Act is inconsistent with the alienability of the ghatwali itself. I can see no inconsistency. If the ghatwali has become alienable it will be alienable subject to the statutory limitations on the nature of the estate itself and I can see no reason why an estate in which long leases can only be granted under certain conditions imposed by Statute should not itself be freely alienable.

Finally reference was made to the decisions in Lakshmi Narain Mahto v. Sataya Narain Chakravarty 36 Ind. Cas. 269 : 1 P.L.J. 197 : 2 P.L.W. 419 and Midnapur zemindar Co., Ltd. v. Ajambar Singh Mura 36 Ind. Cas. 963: I P.L.J. 601 : 2 P.L.W. 427, cases decided after the Regulation of 1914. These cases, however, do not touch the present question. The first was not a case of Birbhum ghatwali, but of a ghatwali of Jamtara under the Raja of Hetampur where the appointment and dismissal of the ghatwal rested with the Raja and not with the Government. Similarly the second case was a case of a Singhbum ghatwali held under the Raja. There is nothing in these decisions inconsistent with the contention on behalf of the appellant in the present case; and the learned Counsel was unable to point out any decision on a Birbhum ghatwali subsequent to 1910 in his favour.

In Kumar Satya Narain Singh v. Raja Satya Niranjan Chakravarty 79 Ind. Cas. 825 : 3 Pat. 183 at pp. 205. 217 : A.I.R.1924 (P.C.) 5 : 28 C.W.N. 351 : 5 P.L.T. 171 : 51 I.A. 37 (P.C.), the Judicial Committee laid down the following rule: "To terminate the ghatwali character of the lands, it seems to their Lordships that it is necessary to find something done or omitted to be done on the part of the Government, as the grantor, which would have the legal effect of a surrender and regrant of the lands on new terms, or, at any rate, of a release of the right to appoint the ghatwal and call for the performance of the services." The learned Vakil for the appellant contends that this is the effect of Regulation IV of 1910. Plainly the burden imposed upon the ghatwal could not be increased. The liability to pay, which is imposed by Section 8, must, therefore, be construed as being imposed in substitution for the pre-existing duty of supplying the Police force. It is argued that this has the legal effect of a surrender and re-grant of the lands on these terms or of a release of the right to call for the performance of the services. For the respondent it is pointed out that there is no express release. But is there not a release by necessary implication? This is the view which has been taken by this Court in Narayan Singh Vs. Nawab Saiyid Dildar Ali Khan and Another, . The fact that in that case it was held that the tenure was not a ghatwali does not affect the reasoning on the subject of commutation, although the case cannot be referred to as an authority deciding the present question. In my opinion the performance of the special services which rendered this ghatwali inalienable has been released in consideration of a money payment. There is no longer any question of the ''personal competence'' of the ghatwal, to use the words of their Lordships of the Judicial Committee in the case already referred to, and there is, therefore, no reason to hold that the ghatwali is any longer inalienable.

I, would, therefore, allow this appeal and reverse the decision of the learned Subordinate Judge and direct that the execution do proceed in due course. The appellant is entitled to his costs here and in the Court below.

It may be added that the learned Vakil for the Manager of the estate argued that there could be no attachment or sale without the leave of this Court, because he is an officer of this Court and the property is in the hands of the Court. This objection appears to be sound, but it was never taken before and the learned Vakil for the appellant says that he is prepared to apply for leave.

Dass, J.

I agree.