Nawab Malka Jahan Sahiba vs Deputy Commissioner of Lucknow In Charge of The Nazul Department

Robert P. Collier, J. 1. The material facts in this case may be shortly stated. The Plaintiff was one of the widows of a king of Oudh, Momuddin Mohommad Ali Shah, who occupied the throne some time before the annexation of Oudh. In the years 1839 and 1840 this lady had four sunnuds from the King, granting to her a large tract of land within the city of Lucknow, comprising royal palaces, gardens, houses, and shops. The form of those sunnuds, which are substantially (if not in words) the same, is this:--" We have graciously been pleased to grant to Malka Jahan Nawab Tajun Nissan Begam, according to the details herein given, the baradari on the road, together with the mohul sarai belonging to Government, containing an area of 38,330 square yards, situated in Tilpura alias Dowlatpura, a mohalla of Lucknow city, which is the seat of Government. All the civil clerks, government officers, and daragas, present and future, are directed to transfer the said houses to the possession of the said begam and her descendants in perpetuity, generation after generation, to see that this command is durably executed, and to give no annoyance by demanding any tax. Neither shall they call for a fresh deed year after year." 2. On the suppression of the mutiny in Oudh the well-known proclamation of Lord Canning was issued on the 15th of March, 1858. That proclamation, among other things, contains these words:-- "The Governor-General further proclaims to the people of Oudh that, with above-mentioned exceptions " (in favour of certain loyal talookdars), " the proprietary right in the soil of the province is confiscated to the British Government, which will dispose of that right in such manner as to it may seem fitting." It proceeds: " To those talookdars, chiefs, landholders, with their followers, who shall make immediate submission to the Chief Commissioner of Oudh, surrendering their arms and obeying his orders, the Eight Honourable the Governor-General promises that their lives and honour shall be safe, provided that their hands are not stained with English blood murderously shed. But as regards any further indulgence which may be extended to them, and the condition in which they may hereafter be placed, they must throw themselves upon the justice and mercy of the British Government. To those amongst them who shall promptly come forward and give to the Chief Commissioner their support in the restoration of peace and order, this indulgence will be large, and the Governor-General will be ready to view liberally the claims which they may thus acquire to a restitution of their former rights." It does not appear either that the Plaintiff took any part in the rebellion or that she promptly came forward and gave her support for the restoration of peace and order. 3. Their Lordships have before now had occasion to express the opinion, to which they adhere, that the effect of the proclamation was to divest all the landed property from the proprietors in Oudh, and to transfer it to, and vest it in, the British Government. 4. There followed two proclamations of Sir James Outram, dated respectively the 22nd. of March, 1858, and the 25th of March, 1858. The first is in these terms :--" It is hereby notified for those who have fled away from the city, having locked up their houses, that if they would not return within ten days and re-occupy their houses, the property with their houses will be confiscated." The second, addressed to the landholders, runs thus:--" The Major-General, Chief Commissioner of Oudh, in sending you this proclamation, wishes to inform you that if you at once come in ready to obey his orders, provided you have taken no part in the atrocities committed on helpless Europeans, none of your lands will be confiscated, and your claims to lands held by you prior to annexation will be heard." These proclamations of General Outram cannot be taken as changing the effect of the proclamation of Lord Canning, or having any operation, in as far as they may be inconsistent with it. Certainly they could not have the effect of divesting any property from the British Government which had been vested in it. The object of General Outran, doubtless, was to exhibit a conciliatory policy to those who should promptly come in and tender their submission to the British Government. 5. The next document that it is necessary to refer to is a letter of the 8th of April of the same year, addressed by the Secretary of the Chief Commissioner of Oudh to Mr. George Campbell, who was then the Judicial Commissioner of Oudh, in these terms :--" Sir, the Chief Commissioner requests that you will consider the Nazul Department as under you, and that you will at once order lists to be made out and carefully prepared of all Nazul property." (Nazul property being State property, which had accrued to the State from forfeiture, lapse, or any other cause). " The houses and gardens of all rebels should be prima facie entered in the lists, and can be restored or not, as may hereafter appear expedient. The property of the late royal family will necessarily all come within the lists." 6. It has been contended on the part of the Appellant that for " royal family " should be read " king," but their Lordships do not adopt that construction. The question is, what was done by the Government? And looking to this document, coupled with others which will be referred to, it appears to their Lordships that the intention of the Government, which was carried into effect, was to put upon the Nazul register all the property which in any sense could be considered property of the royal family, or royal property, including the property in question. 7. The next document to be referred to is a letter of the Judicial Commissioner of Oudh to the Commissioner and Superintendent, Lucknow Division, dated the 26th of July, 1858. " Sir, in settling what buildings, &c. are to be retained as Nazul and what restored to the former possessors it will be necessary to distinguish between estates made over in full proprietary right to the proper owners, and those which are in fact Nazul as belonging to the former Government, but are held as residences by the begams and others connected with the Court. The latter are clearly not transferable, but will in most instances eventually lapse to Government, and I trust that you will see that the distinction is maintained. For instance, the great palace hitherto held by the Begam Malka Jahan is evidently a mere jointure house in which she lived when all Lucknow was in possession of the Court, but it is in no way her private property, nor can it be said that her house has been taken from her. She is merely, in the altered circumstances of Lucknow and of the royal family, the occupation of British troops and destruction of so many buildings, assigned accommodation more reasonable and moderate than the enormous palace of other times. In other cases similar arrangements may be made so that those who have lost all by the demolitions may be provided for and those who happen to escape may not unreasonably monopolise the accommodation to the exclusion of others. In the Nazul list there should be first statement of estates in immediate possession, and second, statement of those in which the Nazul has a reversionary interest." It would seem that the Deputy Commissioner acted upon this letter of the Judicial Commissioner, for we find this account of " Proceedings of the Collector''s Office of the Lucknow District recorded by Mr. Simson Nicholas Martin, Deputy Commissioner, on the 3rd of August, 1858. A letter dated the ,28th of July, 1858, No. 212, giving cover to Judicial Commissioners'' letter No. 206, dated 26th idem, has been received from the Commissioner directing a distinction to be made in the Nazul Register between those houses which are in reality Nazul, but which were given to begams to live in; for instance, the large house which was formerly in the possession of Malka Jahan, the Judicial Commissioner says that this house certainly belonged to the king, and was given by the King of Oudh to the begam merely to live in. Where such is the case a note will be entered in the column of remarks to the effect that the house will be regarded as Nazul property after the death of the party at present in possession. Ordered that an injunction be issued to the Nazul Daroga, directing him to make the required note in the column of remarks where such a large house is in the possession of any begam." Whether or not that entry in the Nazul was immediately made is not very clear: it would perhaps be the better opinion that it was made subsequently in June 1859, because on the 2nd of June, 1859, we find the following letter from Mr. A. Abbott, the Commissioner and Superintendent, to the Deputy Commissioner. "With reference to your letter No. 598, dated 23rd ultimo, I have the honour to forward for your information and guidance the annexed copy of a letter, No. 1019, dated the 31st idem, from the Secretary to the Chief Commissioner sanctioning the grant to Mohsan-ud-dowla of that portion of the house of Malka Jahan made over to him by the Judicial Commissioner in full satisfaction of all claims on account of houses demolished, and to request that you will file an acknowledgment of the Nawab to the '' effect stipulated, and see that that portion of the premises in the occupation of Malka Jahan is in the Nazul list. The building was declared Nazul by the Judicial Commissioner in his letter No. 206, dated the 20th of July.. 1858, declaring Malka Jahan to have only a life interest in it. On her death it will lapse to the Government." 8. Probably an entry to that effect in the Nazul list was then made. The allusion to Mohsan-ud-dowla in this letter is thus explained. The Government determined to allow the Plaintiff to reside in a large portion of the great aggregation of buildings, but they thought fit to give a portion of it to Mohsan-ud-dowla, who appears to have deserved well of the Government, in lien of certain property of his which had been taken for military purposes. Whether or not the Plaintiff assented to this division between herself and Mohsan-ud-dowla may be questioned, but is not material. She does not in the present action claim that portion of the palace which was assigned to Mohsan-ud-dowla. 9. A good deal of correspondence was read which took place about this time, and their Lordships infer from it that although there does not appear to be any distinct and formal entry of a notification having been given to this lady that she would be allowed to remain only as occupier for life of the premises, she must have been aware of the terms on which the permission was granted. Indeed, she appears on one occasion to have been heard by her mooktear before the Commissioner or the Deputy Commissioner to state her case. 10. About this time the lady went on a pilgrimage and remained absent for several years, leaving the palace in the possession of her servants in the interim. Upon her return, some time in 1S65, she made a claim for the whole of the palace, and that claim is thus dealt with by the authorities. The Under-Secretary to the. Government of India writes thus to the Chief Commissioner of Oudh, from Fort William, on the 22nd of February, 1866, "Sir,--In reply to your Junior Secretary''s letter, dated 10th instant, No. 563, reporting on the claim of Malka Jahan Begam to the whole of the buildings known as ''Malka Jahan''s Estate,'' I am directed to intimate that the Governor-General in Council, concurring in your view of the case, declines to recognise the claim advanced by the begam, and desires that she may be informed accordingly." 11. In the next year she again pressed her claim, and we have, on the 26th of July, 1867, another letter from the Secretary of the Governor-General to her attorneys, in these terms, "Gentlemen, in reply to your letter dated the 1st of March last, submitting a petition from Malka Jahan, in which she lays claim to the house at Lucknow known as '' Aga Mir Ki Deorlu,'' a portion of which has been made over to Nawab Mohsan-ud-dowla, I am directed to inform you that the Governor-General in Council, after careful inquiry, sees no reason to modify his previous orders respecting this claim." 12. The lady appears to have taken no steps in the matter for six years after this, but on the 7th of May, 1873, she presented a petition to the Commissioner of the Lucknow Division, asserting her right to the premises in perpetuity, and requesting the Government to allow it. She goes on to say: " That certain farmans, bearing the royal stamp, relating to the grant of the said houses, are in my possession, which corroborate the fact that these houses were granted to me as my permanent and transferable property for generation after generation. Notwithstanding all this a strange thing has happened, that on the arrival of a letter from your honourable Court, the said houses have been inserted to the Nazul Register under the hypothesis that the King of Oudh, my deceased husband, has granted me the houses for occupation for life only." Then she says: "As I had proceeded on pilgrimage to ''Karbala,'' therefore no steps could be taken from my side to regulate this error. Whereas the groundlessness of this hypothesis will be developed to you even by a perusal of the above-mentioned farmans, in which it is specifically recorded that the proprietary and transferable right of the houses has been given to me for perpetuity." Then she goes on to say: " It is, therefore, essentially necessary and equitable to correct this mistake by striking off the words '' for occupation only ''"--which are in italics and inverted commas--"from the Nazul Register, because by the existence of such a mistake a considerable loss shall be sustained by me, my heirs, and relatives, whose maintenance and protection are incumbent on Government, in compliance with the testamentary contracts of the late king, my husband. In conclusion I respectfully beg that after the perusal of the farman, and making other necessary inquiries, you will be humane enough to correct this mistake, by making known generally that this property may remain exempt from all interference after me as it now is." On the 18th of September following, she seems to have sent copies of these farmans, with a petition (not set out in the Record) which the Commissioner thus deals with on the 18th of October: " Read a petition dated the 18th of September, 1873, from Nawab Malka Jahan, submitting certain sunnuds, with a view to their genuineness being tested. Ordered that the sunnuds be returned to Petitioner, with the remark that officiating Chief Commissioner has no power to inquire into their validity. If she has any doubts on the subject she had better apply to the Civil Court for a declaratory decree, or such other legal advice which the officiating Chief Commissioner is not competent to give." 13. Thereupon she brings the present action on the 30th of March, 1874. The plaint claims a declaration of Plaintiff''s absolute title in the premises, describing them. It states, " That the Plaintiff has been in absolute proprietary possession of the above houses by virtue of the aforesaid grants for last thirty-six years; that in 1858 the Defendant by proceedings dated the 3rd of August, 1858,"--that is the memorandum which has been referred to of the proceedings in the Collector''s Office in Lucknow, acting on the letter of Sir George Campbell,--" declared that the Plaintiff had a life interest in the houses aforesaid, which were to lapse to the Nazul Department on the death of the Plaintiff, the present holder, as a property of the ex-king of Oudh. That the Plaintiff in 1873 presented a memorial to the local Government setting forth her legal title to the aforesaid houses, on the strength of the royal giants mentioned above, and prayed for the rectification of the mistakes committed by the Nazul Department in respect of the ownership of the aforesaid houses, whereupon she, the Plaintiff, was directed to seek redress in the Civil Court, vide Chief Commissioner''s No 581, of the 28th of October, 1873, herewith inclosed. Plaintiff therefore sues for the declaration of her title in the houses aforesaid as the absolute owner thereof." She further asserts that the cause of action arose when she presented her last petition, and the Government refused to act upon it. 14. The Deputy Commissioner pleads first that the " suit is barred by limitation. The palace having been declared to be a State building in 1858, and Plaintiff having been then informed that it was in no way her private property, and that she was allowed to occupy a portion of it as a jointure house," and then he refers to the letters and proceedings which have been read. " The suit in its present form is inadmissible. Plaintiff really wants consequential relief of a most valuable nature, and hence the suit should be brought on full stamps. The sunnuds relied upon are of no force opposed to the declaration of Government after re-occupation, that the palace was State property and the fact of Government having dealt with it as such. For these reasons the suit should be dismissed, with costs." 15. The suit was first heard by Mr. Lincoln, the Civil Judge, who gave judgment in favour of the Plaintiff. An appeal was preferred to the Commissioner, who gave judgment for the Defendants, on the ground that the act which was complained of, and sought to be set aside, was an act of State, and could not be taken cognizance of in a civil Court. On further appeal to the Judicial Commissioner, he affirmed the judgment on the ground that the claim was barred by limitation, and this is the judgment now appealed against. The Commissioner appears to have supposed that Sir George Campbell and the officers who dealt with this property at Lucknow were acting under Regulation XIX. of 1810, Section 7, which enacts that the general superintendence of all Nazul property is vested in the Board of Revenue. Their Lordships think it right to observe that this regulation, which was never extended to Oudh, was clearly not the authority under which they acted; their authority was the proclamation of Lord Canning, and the other proceedings of the Government which have been referred to. 16. Their Lordships are of opinion that this suit cannot be maintained. The proclamation of Lord Canning, as has been before stated, had the effect of vesting the property, the subject of the suit, together with all other landed properly in Oudh, in the British Government, and all who claim title to it must claim through the Government. The question then is, what interest, if any, has been granted or allowed to this lady by the Government? Their Lordships do not think it necessary to determine the effect of the construction of the sunnuds under which she formerly held, whether they would, if Oudh had remained under the old dynasty, have conferred upon her a life interest or an interest in perpetuity. It does not distinctly appear whether or not these sunnuds were called to the attention of Sir George Campbell, acting as the Nazul officer of the Government; but whether they were, or were not, or whether Sir George Campbell took a right or a wrong view of what the lady''s rights were before the proclamation of Lord Canning, appears to their Lordships immaterial. Those rights, whatever they were, were confiscated, and the sole question is, what interest, if any, was regranted to her? Looking at the whole of the proceedings which have been quoted, it appears to their Lordships abundantly clear that no more was granted to her than a permission to occupy the palace for her life. If the acts which she seeks to impugn on the part of the officers of the Government were nullities, it would follow she has no interest at all, but that her property remains in the British Government to which it was confiscated. 17. Their Lordships may further observe that this being a declaratory suit, it is clearly not maintainable on the ground that no possible relief could be given. The suit thus failing on two grounds, it is not necessary to enter into the question of the Statute of Limitations. For these reasons their Lordships will humbly advise Her Majesty that the judgment of the Judicial Commissioner dismissing the suit be affirmed, and this appeal dismissed, with costs.