Shaikh Abdul Rahim vs Gobind Lal Singh and Others

Wort, J.—This is an appeal from a decision of the District Judge of Dumka. It raises the question of whether a shikmi ghatwali can grant a lease to enure beyond his life time. The action took the form of a claim for money and the circumstances under which it arose are as follows: The question relates to the estate of Morrow in the Jamtara Sub-Division which was recorded in Mr. Allanson''s settlement report as a shikmi ghatwali under the ghatwali mahal of Ghatti. The late proprietor, Raghunandan Singh gave a lease of eleven mauzas to the appellant Sheikh Abdul Rahim by two mukarrari leases in consideration of certain debts due by Sheikh Abdul Rahim, and Mr. Hoernle in his judgment states that there was no doubt that at the time of the execution of these leases, the appellant was given to understand that they would last beyond the life-time of Raghunandan Singh. Raghunandan died in 6 Pous 1333 B.S., just nine days before the Pous kist was due. Upon his death, his son Gobinda Lal Singh purported to resume the villages and collect the rent from the headmen and in there circumstances, the appellant as plaintiff sued Gobinda Lal Singh for the rents which he had collected.

Both the Subordinate Judge who tried the case and the District Judge held that the lease was invalid beyond the period of the life-time of the grantor. In the words of the District Judge, the question which had to be decided was whether the lease was valid beyond the period of life-time of the grantor or automatically terminated with his death as in the case of a ghatwali. Both courts, as I have already stated, held in favour of the defendants. But the decision of the Subordinate Judge which was affirmed was that the plaintiff was entitled to the rents of the Pous kist less the nine days between the death of Raghunandan and the actual due date of the kist.

The case after the hearing by the Subordinate Judge in the first instance had been remanded by the District Judga to determine the question of whether the shikmi ghatwal of Morrow comes under the definition of ghatwals of the District of Birbum, who pay the revenue of their lands directly to Government under the provisions of Regulation XXIX of 1814, or failing this, whether there is any authority to show that the shikmi ghatwal of Morrow has no power to grant a lease which is valid beyond the period of his life time. The latter question quite clearly was a question of law which ought to have been determined by the District Judge but on the question, whether the shikmi ghatwal of Morrow came within the definition referred to, the answer of the Subordinate Judge was in the affirmative. The finding of the Subordinate Judge, based on certain authorities, was that the incidents of shikimi ghatwalis are neither more nor less than those of the present ghatwalis. The decision, as I have stated, was affirmed by the District Judge.

Mr. P.R. Das arguing on behalf of the plaintiff-appellant has put forward a number of contentions which can be summarised in this way: that the ghatwalis themselves before the Regulation of 1814 were alienable, that the Regulation of 1814 in substance was a contract between the ghatwals and the Government and that such contract between these parties could not affect a, third party, namely, the shikmi ghatwal, the grant of which was made prior to 1814.

The contention on behalf of the respondents is that the ghatwali was always inalienable owing to its very nature, that the Regulation of 1814 merely placed the ghatwals of Birbhum directly under the Government instead of under the zemindar of Birbhum and that the shikmi ghatwali could have no longer incident than that of the ghatwali itself.

In support of the contentions of Mr. P.R. Das the history of the legislation and a number of authorities have been traced. I have referred already to the Regulation of 1814. The operative part of the Regulation is to this effect:

A settlement having lately been made on the part of the Government with the ghatwals in the District of Birbhum, it is hereby declared that they and their descendants in perpetuity shall be maintained in possession of the lands so long as they shall respectively pay the revenue at present assessed upon them, and that they shall not be liable to any enhancement of rent so long as they shall punctually discharge the same and fulfil the other obligations of their tenure.

The ghatwali lands shall be considered, as at present, to form a part of the zemindari of Birbhum; but the rents of ghatwals shall be paid direct to the Assistant Collector at Suri, or to such other public officer as the Board of Revenue may direct to receive the rents.

Then comes the case of Sartukchunder Dey v. Bhugut Bharutchunder Singh (1853) 9 S.D.A.R. Peng. 900 : 13 Ind. Dec. (o.s.) 82. There it was held in a very short judgment that lands assigned by the State in remuneration for specific police services are not alienable or attachable for personal debts. That was the case of ghatwali under the Regulation to which reference has already been made. Then came Act V of 1859 which recited the decisions in these words

Whereas it has been held that the ghatwals of the District of Birbhum who pay the revenue of their lands directly to Government under the provisions of Regulation XXIX of 1814 have not the power of alienating their lands.

The Act, goes on to provide that ghatwals have the power of granting leases for any period which may be deemed most conducive to the improvement of their tenures.

The question, therefore, is whether as the result of the Regulations, the decisions and the Act, it can be said that the character or nature of these ghatwalis was different before the Regulation from their nature afterwards. The substance of the contention on this point is that the Regulation affected the position in as much as such services as would be rendered were to be rendered directly to Government after the Regulation and consequently the ghatwali became inalienable, whereas prior to the Regulation, the services were to be rendered to the zamindar and that the most that can be said against the appellant was that the ghatwali was alienable with the consent of the zamindar. For the decision in the lower courts, reliance has been placed en the case the Bally Dobey v. Gonei Deo 9 C. 388. That was a case in which the question arose whether a shikmi ghatwali tenure could be sold in execution and the decision of Mr. Justice Tottenham and Mr. Justice Ghosh was that it could not. The importance of this decision was that it was relied upon by the Judicial Committee of the Privy Council in the case of Ashutosh Deo v. Bansidhar Shroff 109 Ind. Cas. 730 : 9 P.L.T. 549 : AIR 1928 P.C. 177 : 48 C.L.J. 64 : 55 M.L.J 7 : 32 C.W.N. 880 : 7 Pat. 744 : 28 L.W. 798 (P.C.). Viscount Sumner in delivering the opinion of the Judicial Committee expressed himself in these words:

The inalienability of a ghatwali tenure is a settled principle of the general law; see Nilmoni Singh v. Bakranath Singh 6 Order 187 : 5 Shome L.R. 66 : 4 Sar. P.C.J. 335 (P.C). and, with regard to those in Birbhum, Bengal Regulation XXIX of 1814 and Act V of 1859, which the Regulation of 1910 does not purport to affect, have specifically affirmed it.

The importance of this decision is the generally wide statement which Viscount Sumner makes. He speaks of the Regulation and the Act V of 1859 as affirming the general principle of the law of inalienability. The respondent naturally relies upon these decisions contending that if it is indeed the general principle of law that the ghatwalis themselves are inalienable, it cannot be said that the shikmi ghatwali can have a higher incident in the sense that it is alienable.

In the case of Ashutosh Deo v. Bansidhar Shroff 109 Ind. Cas. 730 : 9 P.L.T. 549 : AIR 1928 P.O. 177 : 48 C.L.J. 64 : 55 M.L.J 7 : 32 O.W.N. 880 : 7 Pat. 744 : 28 L.W. 798 (P.O.) one of the contentions appears to have been that the Regulation there under discussion had the effect of a release or discharge on the part of the Government to have the right of inalienability of the tenure enforced and Lord Sumner in dealing with this matter relied upon the case of Satya Narayan Singh v. Satya Niranjan Chakrawarti 79 Ind. Cas. 825 : 5 P.L.T. 171 : AIR 1925 P.C. 5 : 28 C.W.N. 351 : 3 Pat. 183 : 51 I.A. 37 (P.C.). in which it was stated

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 re-grant 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 observation of Lord Sumner is relevant only on the question of whether the shikmi ghatwalis had any police service to render as it was argued that there were no police services and therefore the character of inalienability which was an incident of the ghatwali itself is hot passed on to the shikmi ghatwali. Lord Sumner was dealing with a ghatwali and not a shikmi ghatwali and with the construction of a sanad it is to be noted, but whatever else may be said, I think it is clear that the shikmi ghatwali when it was created was nothing more then a subdivision or at the most a sub-infeudation in relation to the ghatwali itself. That being so, it is difficult to see how it can be argued that the nature of the shikmi ghatwali differs in any way from the nature of the ghatwali itself. That the shikmi ghatwali had to perform police services at the time of the grant there can be no manner of doubt and the argument, therefore, of Mr. P.R. Das that the responsibility for policing the country having been taken over by Government in any way affects the nature of the shikmi ghatwali cannot be sustained.

In this connection Lord Sumner quotes the maxim "cessante ratione legis cessat ipsa lex" and states that the argument.

really amounts to a claim that a court of law can inquire into the present utility of an ancient incident of tenure and annul it and its enjoyment by the ruling power, whenever in its opinion the incident has survived its usefulness.

He adds

This is a matter of policy, not of interpretation of a legislative instrument or of application of general law, and is beyond judicial powers.

At this stage the argument is repeated that the Regulation of 1814 is nothing more than the form of a contract between the ghatwali and Government or the zamindar and Government at a date subsequent to the creation of the subtenure. This brings us back to the matter which I have already discussed namely, whether the ghatwali was alienable before the Regulation. In pursuance of thin argument some observations in the case of Mukurbano Deo v. Kostoora Koonwaree 5 W.K. 215., were relied upon The statement was this:

Even if the Government had passed a law in 1793 or afterwards, prohibiting the ghatwals from creating any permanent tenures, or even such a tenure as is pleaded by the appellants to be held by them, and even if that law had stated that the original rights acquired by the ghatwals were clearly proved to be so limited as not to admit of a right to create such tenure, it is clear that, not with standing all this, such a law, unless expressly worded to have a retrospective effect could not by itself prejudice any substantial pre-existing rights.

The argument is, as I have already stated, that the effect of the Regulation of 1814 was to make the ghatwali inalienable but that eauld not affect the rights such as that of the shikmi ghatwali which came into existence prior to the Regulation. But although, the general proposition of law which is stated can not be assailed, yet it must be remembered under what circumstances the statement was made. There the question was as between a ghatwali and an under-tenure or shikihi ghatwali and it was held that the Sirdar ghatwdl could not set, aside the grant of a shikmi, ghatwali on the allegation that ghatwalis themselves had become inalienable. It is to be further noted in that case that the grant of the under-tenure was for the purpose of carrying out the very duties which had bean imposed upon the ghatwals themselves.

It is then stated that the argument of the respondent depends upon the question of whether any services are to be rendered; and it being for the reason that services are to be rendered that the ghatwali became or was inalienable, it is asserted that in the shikmi ghatwali, there were no services to be rendered and ih consequence the incident of inalienability disappears. As an answer to this argument I have only to refer again to the judgment of Lord Sumner mentioned above. Farther reliance was placed upon the decision in the case of Satya Narayan Singh v. Satya Niranjan Ghakrazarti 79 Ind. Cas. 825 : 5 P.L.T. 171 : AIR 1925 P.C. 5 : 28 C.W.N. 351 : 3 Pat. 183 : 51 I.A. 37 (P.C.) where Lord Sumner delivering the opinion of the Judicial Committee stating the nature of these ghatwalis makes this observation

Ghatwali duties may be divided into poilce duties and guasi-military duties, though both classes have lost much of their importance, and the latter in any strict form are but rarely rendered. Again the duties of the office may be such as demanded personal discharge by the ghatwal and personal competence for that discharge, they may be, on the other hand, such as can be discharged vicariously by the creation of shikmi tenures.

But there it was held that the tenure was inalienable as they had failed to establish that under a local custom the ghatwali tenures in the zamindari of Kharagpur had been held to be alienable without the zamindars consent.

To revert for a moment to the argument that no services are to be rendered and, therefore, the tenure is alienable, mention must be made again of the case of Ashutosh Deo v. Bansidhar, Shroff 109 Ind. Cas. 730 : 9 P.L.T. 549 : AIR 1928 P.C. 177 : 48 C.L.J. 64 : 55 M.L.J 7 : 32 C.W.N. 880 : 7 Pat. 744 : 28 L.W. 798 (P.C.) Amongst the other matters argued in that case on behalf of the respondent was that the Regulation of 1910 had the effect of commuting for a money payment the only service which the ghatwal had to perform but Lord Sumner in delivering the opinion of the Judicial Committee stated that not only did the Regulation of 1910 not purport to affect the general principle of law of inalienability but specially affirmed it.

Some reliance was placed on the case of Chhatradhari Singh Vs. Hemlal Singh and Others, . where it was held in a judgment to which I was a party that, a khorposh mukarrari jote, unless there was evidence to the contrary, was alienable, that is to say, in the absence of evidence that it was restricted in its enjoyment to the owner personally was alienable. But the question which had to be decided was whether a khorposh mukarrari jote was raiyati holding or a tenure and it was decided that in the absence of evidence as to the original grant in its terms, it was impossible to hold that it was restricted in its enjoyment to the owner personally. This, however, does not assist the appellant.

From whatever point of view we look at the case, the same aspect appears and the question arises what was the character of the ghatwali prior to the Regulation of 1814. It is not seriously contended that, if a ghatwali was inalienable prior to 1814, then a shikmi ghatwali was also inalienable and the argument depends, as stated above, on the assumption of a contention that the Regulation of 1814, made the ghatwalis inalienable for the first time. Having regard to the decisions to which I have already referred, particularly those of Lord Sumner delivered in the Judicial Committee of the Privy Council, I see no reason to doubt the proposition of law that by their very nature the ghatwalis were inalienable and that nothing that may have happened since has affectsd what is described as the general principle of law. It is not denied that the shikmi ghatwali cannot tike upon itself a higher right than that of the ghatwali. In my opinion, therefore, the shikmi ghatwalis were inalienable, the leases which are under discussion in this case cannot take effect after the death of the grantor and, consequently, the decision of the lower court was right and must be affirmed. This appeal must be dismissed with costs.

Mohammad Noor, J.

I entirely agree. The simple question involved in this second appeal is whether the shikmi ghatwali tenure of Morrow appertaining to Birbhum ghatwali of Ghati is alienable; or, in other words, whether the shikmi ghatwal for the time being can create a right in favour of another person which may last beyond his own lifetime, it being undisputed that the ghatwal of ghat cannot do so. Both the courts have answered this question in the negative. The learned District Judge though of a some what different opinion felt himself bound by adeuision of the Calcutta High Court in Bally Dobey v. Ganei Deo 9 C. 388 and another of this Court in Ram Das Singh v. Bzni Deo 116 Ind. Cas. 41 : 10 P.L.T. 143 : AIR 1929 Pat. 198 : 8 Pat. 116.

Mr. P.R. Das, who appears for the appellant, asks us to examine the question on the merits and to hold that the above two cases were not correctly decided, and that, if necessary, we should refer this case to a Full Bench. His contention is that the case in Bally Dobey v. Ganei Deo 9 C. 388, gives no reason and takes it for granted that a shikmi ghatwali partakes, of the nature of the superior ghatwali tenure and that the decision of this Court is also based upon that assumption and upon the decision of the Calcutta High Court. That ghatwals of Birbhum, prior to the passing of the Regulation XKIX of 1814, were under the zemindar of Birbhum, In that year a Regulation was passed which provided that the ghatwali lands

shall be considered as at present to form part of the zamindari of Birbhum, but the rents of the ghatwalis shall be paid to the Assistant Collector statitioned at Suri or such other public officer as the Board of Revenue may direct to receive and that the difference between the amount of revenue assessed on the ghatwals and the fixed assessment of revenue in this portion of the zamindari of Birbhum payable to Government shall be paid to the zamindar of Birbhum and his heirs and successors in perpetuity.

The effect of this Regulation was that the ghatwals, who paid their rent to the zamindar of Birbhum, were brought in direct relation to the Government who was to recoup the zamindar of Birbhum for the rente which the latter used to receive from the ghatwals. After this the question of inalienability or otherwise of the ghatwali tenures came up before the late Sadar Diwani Adawlat in the case of Sartukchundra Dey v. Bhugut Bharutchundra Singh (1853) 9 S.D.A.R. Peng. 900 : 13 Ind. Dec. (o.s.) 82, That court affirmed the decision of a Judge of the court below, which was based to a large extent on the intent and purpose of Regulation XXIX of 1814. Then came Act V of 1859 which was intended to some what relax the law in favour of alienation. It starts with the preamble which says that:

whereas it has been held that ghatwals of the District of Birbhum who pay the revenue of their lands directly to Government under the provision of Regulation XXIX of 1814 of the Bengal Code have not the power of alienating their lands etc, and enacts

that a ghatwal shall have power of granting lease for any period but no lease of any ghatwali land extending beyond the lifetime of the grantor shall be valid and binding upon the Successor of the grantor.

Then, there are other provsions which need not be mentioned here. This is the law which now governs the alienations by a ghatwal. Mr. Dass argument is that prior to the passing of the Regulation of 1814, the ghatwalis were alienable, that the late Sadar Diwani Adawlat on the basis of that Regulation held that they were not; and that Act V of 1859 relaxed this and allowed leases for a period not extending beyond his own life-time. He lays stress upon the preamble of Act V and contends that it starts not on the basis that the ghatwalis were by their very nature not alienable, but on the ground that it was held (presumably referring to the case of the Sadar Diwani Adawlot) to be so. He maintains there fore, that the inalienability is based upon a peculiar historical fact which cannot and should not apply to a shikmi ghatwali. In short, Mr. Dass contentions are these. Ghatwalis like any other property are and were alienable. The ghatwals of Birbhum by agreement came directly under the Government and this was given effect to and recognised by Regulation XXIX of 1814 (see Section 2 of the Regulation). The shikmi ghatwali in question separated from the main ghatwali prior to the passing of this Regulation (see McPhersons Settlement Report, of the Santal Paraganas at page 193). Therefore, he argues that the ghatwals by entering into an agreement cannot bind the shikmi ghatwali which had at that time been already separated or in other words, the ghatwal having created a shikmi ghatwali could not derogate from his own grant by entering into an agreement with the Government the effect of which wes to make the ghatwali inalienable. He relies upon the preamble of Act V of 1859 which relaxed the inalien-ablility of the ghatwali. It refers to these only who paid revenue directly to the government thereby indicating that only such ghatwals were held not to have the power of alienating their land, and not the other ghatwals. Therefore a shikmi ghatwal, who does not pay revenue directly to Government, is not covered by the decisions against inalienability and therefore, Act V ot 1859, did not deal, with them. This being, the contention, it is necessary to consider whether by its very nature, a ghatwali tenure is inalienable.

Let us first see what a ghatwali is District Gazetteer of the Santhal Paralalias by O''Malley says that

the ghatwalis appear to have been originally tenures granted for the protection of the ghats or passes through the hills, and the ghatwals were small hill chiefs who raised small levies for their defence and were responsible for peace and order in the tracts held by them.

Their Lordships of the Judicial Committee in the case of Raja Lelanund Singh v. Government of Bengal 4 W.R. 77 (P.C.) : 6 M.I.A. 101 : 1 Suther 248 : 1 Sar. 505., observed:

Besides the disorder which prevailed generally through the provinces, particular districts were exposed to ravages of a different description. Mountain or hill districts in India were at this time inhabited by lawless tribes asserting a wild independence--often a different race and different religion from the inhabitants of the plains, who were frequently subjected to the marauding expeditions by their more warlike neighbours. To prevent these, incursions, it was necessary to guard and watch the ghats or mountain passes through which these hostile descents were made, and the Muhammadan rulers established the tenure called ghatwali tenure, by which lands were granted to individuals, often of a high rank, at a low rent, or without rent, on condition of their performing these duties and protecting and preserving order in the neighbouring districts.

In the case or Narain Mullick v. Badi Roy 6 C.W.N. 94. their Loraships of the Calcutta High Court referring to the nature of the tenure observed that

ghatwali tenures were created by the Muhammadan Government in order to provide both police and military powers to watch and guard the passes on the western frontier of Bengal against the invasion of lawless hillmen and others. It thus became a necessary incident to such a tenure that it should be incapable of alienation so that the profits might remain unimpaired for the succeeding ghatwal and thus to enable him to render full and efficient service expected of him.

It is, therefore, clear that ghatwali is a service tenure, and by its very nature inalienable. In the case of H. Mathewson Vs. Secretary of State, , Jwala Prasad, J., while discussing the alienability oi service tenures observed as follows:

Upon the principle that the tenure may be available tor service and that in case of dismissal the successor of the dismissed ghatwal may easily obtain possession of the properties, the ghatwal is not competent to alienate by private sale or otherwise, nor is the same liable to sale in execution of decree except with the consent and approval of the zamindar where the services are rendered to him, or of the Government where the services are rendered to the Government.

In the case of Bansidhar Shroff v. Thakur Ashutosh Deo 86 Ind. Cas. 163 : 6 P.L.T. 106 : (1925) Pat. 2 : A.I.K. 1925 Pat. 340 : 4 Pat. 272. which was of Birbhum ghatwali, thin court neld that the inalienability of the ghatwali tenure, was due to the ghatwalis being liable to render police service; and, as the police service was commuted by the Santhal Parganas Rural Police Regulation of 1910, the ghatwalis were no longer inalienable. On appeal, the Judicial Committee reversed this decision. Lord Sumner in delivering the judgment of their Lordships observed: Ashutosh Deo v. Bansidhar Shroff 109 Ind. Cas. 730 : 9 P.L.T. 549 : AIR 1928 P.C. 177 : 48 C.L.J. 64 : 55 M.L.J 7 : 32 C.W.N. 880 : 7 Pat. 744 : 28 L.W. 798 (P.C.)

Apart from the effect of the Santal Parganas Police Regulation, 1910, whatever it may be, it is quite clear that no such order could be made, the alienability of ghatwali tenure is a settled principle of the general law.

The order referred to by their Lordship was the order of the sale of the tenure. Their Lordship referred to the case of Raja Nilmoni Singh v. Bakranath Singh 6 C. 187 : 5 S L.R. 66 : 4 S. P.C.J. 335 (P.C.) and then remarked that so rar as Bironum was concerned, Regulation XXIX of 1814 simply affirmed the general law. It was held that the maxim cessente ratione legis cessat et ipsa lex had no application to these cases. The case of Satya Narayan Singh v. Satya Niranjan Chakravarty 79 Ind. Cas. 825 : 5 P.L.T. 171 : AIR 1925 P.C. 5 : 28 C.W.N. 351 : 3 Pat. 183 : 51 I.A. 37 (P.C.), was of Kharagpur ghatwali not affected; by the Regulation but on the general nature of the ghatwali tenure, their Lordships held it to be inalienable, in the case of Thakurain Fulbati Kumari v. Maharaja Kumar Rao Maheshwari Prasad Singh 74 Ind. Cas. 668 : 4 P.L.T. 473 : (1923) Pat. 161 : A.I.K. 1923 Pat. 453 : 2 Pat. 085., this Court again had to consider the incidents of Kharagpur ghatwali not affected by Regulation XXIX of 1814. A distinction was drawn between a ghatwali afiected by Regulation XXIX of 1814 and a ghatwali not affected by it. It was held that

One of the main distinctions between these two classes is that the Birbhum ghatwali tenures are inalienable except with the consent of the Government by whom the settlements were made and to whom the revenue is paid direct, whereas the Kharagpur ghatwalis are alienable subject to the consent of, the landlord to whom the, rent or revenue is paid.

The distinction is of no importance in this case. The principle is obvious. A ghaiwali had seen created for the rendering of service so the grantor. If the ghatwal is permitted in alienate the land which has been given to him for the performance of service, the rendering of the service may itself be impaired. A tenure which is alienable subject to the consent of the grantor or his heirs cannot be said to be alienable like all the properties. Both classes of ghatwalis are inalienable. Of course if the grantor consents, it is quite a different question altogether. In the case of the Birbhum ghatwali which is held directly under the Government, the Government by enacting Act V of 1859 declared that they give their consent to a particular class of alienation and to no other, whereas if a ghatwali is held under a private landlord, he can always give his consent to the alienation. In the case of Narain Mullick v. Badi Roy 6 C.W.N. 94, a case already referred to, the Calcutta High Court held that as a general principle, a ghatwali is not comptent to grant a lease in perpetuity and his successor is not bound to recognise such an encumbrance. This was a casa of a ghatwal who was not subject to the Regulation. Mr. Das relies upon the case of Mukurbhanoo Deo v. Kostoora Koon-waree 5 W.R. 215 to show that even Birbhum ghatwalis were transferable In my opinion that caae doss not lay down such a proposition. It only decides that a ghatwal is entitled to create subordinate tenures for the very purpose for which the ghatwali was granted. The issue in that case was whether a ghatwal could create an under-tenure of a permanent kind binding upon the successors or at least to create such tenures as were pleaded by the appellant in that case in favour of the junior members of the family or any other person for assisting him in police duties and if such a tenure be illegal when created, could it be allowed to be disturbed. The decision was that such a tenure could be created and that the particular tenure haying been created before the decennial settlement was binding upon the ghatwal, This general question of inalienability or otherwise was not decided. Rediance has bsea placed upon the case of Sarda Devi, Ram Lochan Bhagat 97 Ind. Cas. 210 : 7 P.L.T. 570 : (1926) Pat. 254 : 7 P.L.T. 570 : A.I.E. 1926 Pat. 444. and the case of Ghatradhari Singh v. Hem Lil Singh 105 Ind. Cas. 42 : 9 P.L.T. 283 : A.IR. 1928 Pat. 105. None of these cases is to my miad applicable to the facts of the present case la the former the question was whether a brohmottar grant given by a ghatwal was inalienable because the ghatwali itself was inalienable. It was answered in the negative. The latter case was about khorposh grant ia a ghatwali.

The question of inalienability or otherwise of the ghatwali was not in issue in any one of these cases. The next case relied upon is the decision in W.R. Danes v. Debee Mahtoon 18 W.R. 377 There the question was that the inalienability of a ghatwali tenure does extend to the grant of a mukarrari lease in good faith for clearance of jungle. There is, therefore, concensus of decisions that ghalwalis as such are not alienable.

Now the question is whether a shikmi ghatwali cen have a higher right than the ghatwali himself. I am clearly of opinion that he cannot. The burden of the service is upon the entire tenure Shikmi means belly and shikmi tenure is a tenure which has been carved out from the head tenure by sub-infeudation. This carving out does not relieve the shikmi tenure of the liability of the service which attaches to the tenure as a whole. Therefore, if alienability is attached as a necessary incident to ghatwali tenure, it is attached to a shikmi tenure as well.

I am therefore of opinion that the case of Bally Dobey v. Ganei Deo 9 C. 388 and Ram Das Singh v. Beni Deo 116 Ind. Cas. 41 : 10 P.L.T. 143 : AIR 1929 Pat. 198 : 8 Pat. 116 were correctly decided and must be followed and this appeal should be dismissed with costs.