1. The suit which has led to this appeal relates to a. village known as Ravicherla. It was granted to the ancestors of the plaintiffs by a sanad issued by the Government, dated the 2nd of May, 1843.
2. The grant contains two restrictive clauses one relating to the right of succession which provides that Ravicherla shall be held in perpetuity by the grantees and only such of their heirs could take as the Government might recognise for this purpose from time to time. The second clause, the one with which we are concerned in this appeal, imposes a restriction on the right of alienation, no transfer of the village being valid unless the previous consent of the Government has been obtained authorising such transfer.
3. The plaintiffs agreed to sell the property and the proposed vendee having regard to the second provision referred to above desired, them to obtain the consent of the Government to the sale. The plaintiffs accordingly, requested the Government to give consent, but the Government declined to do so. The suit was then laid against the Secretary of State arid the plaintiffs allege that the village, though it was nominally granted by the Government, was really. acquired as a result of a family settlement, the Government merely acting as mediators in the matter. The plaintiffs, urge that in any event the clause in question, imposing a restraint on alienation is void.
4. The Subordinate Judge, agreeing with the plaintiffs gave them a decree and the Secretary of State has filed this appeal.
The following genealogy will serve to explain the facts of the case:
NARAYANA APPA RAO |
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"7. Prior to 1800 A.D., the estate had been transferred to Government management and in that year the Government determined to restore the zemindari and sanads were issued in 1802 to Venkatanarasimha Appa Rao for the pargannahas in the Ellore Sircar now constituting the Zemindari of Ellore or Nidadavole and to Ramachandra Appa Rao for the pargannahas in the Condapalli Sircar now constituting the Zemindari of Nuzvid. Narasimha Appa Rao, the youngest of the three brothers was then a minor and for some reasons which it is unnecessary to go into, his rights were completely overlooked."
8. This, as might be expected, led to litigation which finally ended in the decree of the Sudder Court in 1819 which upheld the division of the zemindari in 1802 as an act of State with which the Courts of Law would not be justified in interfering. Narasimha then attempted to carry the matter to the Privy Council but his circumstances did not permit him to, do so and he at, that juncture appealed to the Government.
9. The Collector Mr. G.E. Russel on the 16th of March, 1820, wrote to the Board of Revenue pointing out that it would have been more proper if at the division of the zemindari a pension had been secured to the claimant and suggesting that the Government might give him some allowance for his maintenance. The Collector also referred to the fact that Narasimha was head and ears in debt and thus observed:
That the good, intentions of the Government will) therefore, be frustrated unless anything which they may give him shall be protected from the fangs of his creditors.
10. The Board of Revenue were averse to adopting the suggestion made by the Collector and the matter had to be finally settled by the Government. Sir Thomas Munro, the Governor of Madras, strongly felt that the claim of Narasimha was substantially just and that he was deprived of his lawful rights by the action of the subordinate officers of the Government and that he failed to get adequate relief from the established Courts of Law.
The Governor in Council" so runs the Government Order, dated the 13th February, 1821, "cannot entertain the idea that it is befitting for the Government to look on with passive indifference at a claim like this or at the fate which, attends it in Courts of Law.
11. The Government recognised that though they were under no legal liability they had in the matter a moral responsibility. I feel tempted to quote the very words:
"The Government are answerable for the injury which he has sustained. They are answerable also for the ruin in which, owing to the ambiguity in which they left his claims and to the course which their judicial institutions led him to adopt, he has been involved. They are answerable for these wrongs not before a Court of Justice, any more than they would have been if, in consequence of similar oversights, the country had been thrown into disorder and the lives and property of its inhabitants exposed to hazard. But their responsibility is a matter of reason and of conscience and should induce them to do all that is, practicable to compensate for the wrongs which have been committed."
12. The Government having issued this order advised the Collector to prevail upon the zemindars, of Nidadavole and Nuzvid to make a settlement with the claimant and intimated that if they failed to take a reasonable view, the Government might the constrained to adopt measures to give effect to what must be presumed to have been their intention at the time of the grant of the sanads.
13. These events bring us up to 1821 and the material before us is silent as to what transpired between 1821 and 1829.
14. It would appear that by this time both the estates of Nidadavole and Nuzvid came under the Court of Wards, both Venkata Narasimha and Ramachandra having died. Venkata Narasimha died having adopted Narayya and Ramachandra died leaving an only son Sobhanadri. No settlement was effected and the Government, resolved to adopt drastic measures and on the 10th; of April, 1829, requested the Sudder Court to draft a Regulation revoking the sanads of 1802. Accordingly Regulation, IV of 1829 was passed on the 23rd of June declaring the sanads of 1802 to be void and empowering the Government to issue fresh sanads granting Narasimha a third of the whole estate. The Board of Directors did not approve of the Regulation and its operation was, therefore, suspended. This takes us to the year 1829.
15. From 1829 10 1835 there is again a gap, but the crucial events are those that happened subsequent to this period. The facts that have been so far narrated are important only as leading up to the events which I shall now set forth.
16. The contention of the plaintiff is that Ravicherla fell to his ancestors in a family settlement between the representatives of the three branches, that though the village was acquired ostensibly under a grant from the Government, the source of title was in fact pot the grant but the family settlement and that, therefore, the restrictive covenants in the grant are void and of no effect. I shall show that this contention is utterly unfounded. There is not the slightest doubt that Ravicherla was settled upon the plaintiff's ancestors by the Government and that the grant took the final shape of the sanad, dated 2nd May, 1843.
17. Narasimha died and his minor sons Simhadri and Venkatadri had come of age. Narayya and Sobhanadri had also taken possession of their estates of Nidadavole and Nuzvid, respectively. In 1835 the then Governor Sir Frederick Adam brought his personal influence to bear upon the zemindars Narayya and Subhanadri and got them to consent to pay-Narasimha's sons Rs. 600 a month for their maintenance. On the 4th February, 1835, two agreements were entered into, one relating to the debt due by Nidadavole to Nuzvid which is for the present irrelevant and the other agreement related to three matters:
(1) There was a debt due by Ramanamma the widow of Venkata Narasimha to the Nuzvid Estate. Sobhanadri agreed to give this up.
(2) Narayya similarly waived his right against Sobhanadri in respect of properties that belonged to Venkamma the mother of the late Venkata Narasimha.
(3) Narayya and Sobhanadri agreed to pay the sons of Narasimha Rs. 600 a month, Rs. 400 to be paid by Narayya and Rs. 200 by Sobhanadri.
18. To these agreements the two zemindars, alone were parties and though a provision was made in favour of the sons of Narasimha they did not execute the agreements.
19. The documents filed in the case make it very clear that this arrangement was brought about by the direct intervention of His Excellency the Governor (in Ex. F both Narasimha's sons and the zemindars say that these agreements were entered into "in the presence of the Right Honourable the Governor").
20. So far it will be seen that there was no reference to Ravicherla. Under orders of the Governor, these agreements were on the 6th of February, 1835, sent on to the Collector. In the letter of that date, Ex. D, there is a reference to the fact that the Governor personally expressed to Simhadri Appa Rao his approbation of the provisions made for the benefit of Narasimha Appa Rao's sons. In the reply of the Collector that followed, dated the 4th March, 1835, we find for the first time a reference to Ravicherla. The matter was raised in, this way. Narayya by the agreements referred to waived his rights to the properties of Venkamma in favour of Sobhanadri. Ravicherla was one of the properties that belonged to Venkamma. The Collector asked--would not the surrender in favour of Subhanadri enure also for the benefit of the sons of Narasimha? The question was raised and it was left open. Mr. Venkataramana Rao the learned Vakil for the plaintiff with great resourcefulness and ability argued that this showed that Ravicherla fell as a result of the agreement to Simhadri. But a perusal of the documents will show, as I have said, that this contention is quite unsound. The Collector merely stated what he believed to be the fact and did not speak from personal knowledge. The question regarding Ravicherla was finally settled by the Government Order, dated the 10th of November, 1836.
21. It says:
The Right Honourable the Governor in Council observes that at the time arrangements were made for adjusting the disputes between the Zemindars of Nidadavole and Nuzvid, it was distinctly understood and repeatedly explained to them that the Mokliasa village of Ravicherla had lapsed to Government.
22. I have already pointed out that His Excellency the Governor was personally present and took part in the arrangements and this minute clearly records that it was distinctly understood that Ravicherla was the property, of the Government. If this be so, Ravicherla could not have passed to Sobhanadri under the arrangements, referred to.
23. The matter is made even clearer by the subsequent proceedings. The sons of Narasimha were sent for the Collector and they refused to accept the terms offered by Nidadavole and Nuzvid. Some months were, thus wasted. They again appeared and expressed their willingness to agree to the terms, provided the Government granted to them for their support three small villages. This was before the minutes of consultation, dated the 10th November, 1836. After the Government had decided that Ravicherla had lapsed to them, the Collector conceived the idea of recommending to the Government the desirability of conferring upon the sons of Narasimha the villages of Ravicherla, Madaca and Rdodravaram. Then after a short interval the Collector suggested Sriramavaram in lieu of the villages of Madaca and Roodravaram. These events must be carefully followed in their chronological order. Exhibit E the letter of the Collector, dated the 23rd of May, 1837, sets forth very clearly the facts which I have referred to. I will quote three passages from it:
(1) The terms on which he grounded his acquiescence were that three small villages might be bestowed upon him for his support on the part of the Government independent of the pension to be granted by his brothers of Nuzvid and Nidadavole.
(2) Shortly after this occurred, the right to the village of Ravicherla became a subject of enquiry and was ultimately assumed and appropriated by Government under their orders, dated 10th November, 1836, and the idea was then awakened of recommending to Government the propriety of conferring it together with the villages, of Madaca and Roodravaram upon him.
(3) In making this recommendation I am perfectly aware that Simhadri Appa Rao will be indebted to the beneficence of Government solely for it not to any personal or private claim but to the operation of those feelings of sympathy which influences Government in all its acts.
24. Can there be any doubt after this, that before even the idea of settling Ravicherla came to be conceived, it had been unequivocally declared that the village was the property of the Government?
25. The matter, however, does not stop here. The two zemindars as well as the two sons of Narasimha appeared before the Collector in September, 1837, that is about four months after the letter of the Collector. referred to above. Simhadri gives a writing dated the 10th September, and Venkatadri, the other son of Narasimha, a writing,, dated the 23rd September. Simhadri says: "It is necessary that I should give my unconditional and unreserved agreement in accepting, the said allowances, when your Collector's recommendation in my favour would be taken into consideration." What is the recommendation that is referred to? It is obviously the grant of Ravicherla and Sriramavaram by the Government. Again Simhadri says "I fearlessly accept the terms proposed by the Board, submitting in every respect to such terms alone as Government in their justice may be pleased to extend to me." Venkatadri in the writing signed by him, agreed to the terms contained in his brother's letter.
26. The four letters signed by the zemindars and the sons of Narasimha formed enclosures to the communication of the Collector, dated the 5th October, 1837, to the Board of Revenue. The Collector says:
"I have pledged myself (without which I could not have effected the present arrangement) that Government, to mark their satisfaction at the good understanding which has taken place between the brother, will make over to Simhadri Appa Rao the villages of Ravicherla and Sriramavaram, alluded, to in my former letter under date the 23rd of May last."
27. It is impossible to contend in the face of this very clear evidence that Ravicherla was not the properly of the Government at the time of the grant.
28. I may, however, trace the subsequent history of these negotiations. On the 17th of November, 1837, the Government decided finally to grant these villages to Narasimha's sons (see Ex. G.) The Board directed the Collector to insert in the sanads conferring on them these two villages, a proviso that the lands should not be liable for any of their debts. The Governor in Council approved of this suggestion of the Board of Revenue. Simhadri and Venkatadari desired that the exemption should extend also to allowance agreed to be paid by Nidadavole and Nuzvid. The officers of the Government could not accede to their wishes because in the words of Ex. IV, dated the 20th September, 1838, the allowances do not immediately emanate from the Government. In the enclosure to Ex. IV Simhadri referred to Ravicherla and Sriramavaram as villages conferred by the Government and requested that the clauses should be inserted in the sanad. The contrast is very marked when he referred to the allowance as payable by Nidadavole and Nuzvid in, regard to which also he desired that restrictive clauses should be inserted. It is unnecessary to refer to the further correspondence in the matter. Exhibit J is the sanad, dated the 2nd May, 1843. This refers to the Government Order, dated the 10th November, 1835, by which Ravicherla reverted to the Government. There is further a reference to the arrangement, dated the 4th February, 1835 and it is clearly stated that at that time there was a distinct understanding and repeated explanations," in pursuance of which Ravicherla lapsed to the Government. This sanad clearly states also that it was the Government that settled the village upon Simhadri and Venkatadri.
29. There can, therefore, be no doubt that it was by reason of the grant that the ancestors of the plaintiffs acquired Ravicherla and that the source of their title is not a family settlement between the representatives of the three branches. The question does not admit of doubt, but owing to the very strenuous argument addressed to us on this subject I have dwelt on this point at this length.
30. This disposes of the question of fact raised in the case. I have come to the conclusion that the Subordinate Judge's finding is wrong and must be reversed.
31. Then remain the points of law that have been raised and I shall now deal with them. It is first contended that the restrictive covenant in question is void. This would be so under the general law, but grants from the Crown are governed by the Crown Grants Act (XV of 1895). Doubts having arisen as to the power of the Crown to impose restrictions upon grants made by it, the Act was passed to remove such doubts. Section 2 makes the Act have a retrospective effect. It says:
Nothing in the Transfer of Property Act shall...be deemed ever to have applied to any grant...heretofore made...by or on behalf of Her Majesty the Queen-Empress or Her heirs or successors...but every such grant shall be construed...as if the said Act had not been passed.
32. Section 3 enacts:
All restrictions...contained in any such grant shall...take effect according to their tenor, any rule of law...to the contrary notwithstanding." I am here quoting only the material portions of the sections.
33. The contention advanced is, that the grant was not made on behalf of the Crown and that the Act will not, therefore, apply to it. The argument is put in this way. In 1858 the sovereignty of India was for the first-time assumed by Her Majesty; it had previously vested in the East India Company. The grant having been made in 1843, it could not be deemed to have been made on behalf of the Crown. If it had not been made on behalf of the Crown, the Crown, Grants Act is inapplicable.
34. Let me examine if this contention is sound. At the time of the grant, the Charter Act that was in force was that of 1833 (3 & 4 Will. IV, Ch. 85). I shall first take the preamble. It recites that the East India Company have consented that all their rights in the territories and, territorial and commercial assets and property shall be placed at the disposal of Parliament. It further recites that it is expedient that the territories now under the Government of the said Company be continued under such Government, but in trust for the Crown, discharged of all claims of the Company to any profit there from to their own use. The first section of the Act gives effect to the intention expressed in the preamble. If the Government by the East India Company was thus in trust, for the Grown of the, United Kingdom, does it not follow that the grant made by the Company should be deemed to be on behalf of the Crown? But the plaintiff's learned Vakil objects that a trustee does not act "on behalf of" his beneficiary and the act of the East India Company cannot, therefore, be deemed to be an act on behalf of the Crown. The answer is that the word "trust" is not used in the Charter Act in its strict technical sense and it will be far-fetched to hold that because the word used is "trust", therefore, the law of trusts as strictly understood, should govern the relations of the Company and the Crown. This could not be the intention of the Legislature and am unable to accept the argument.
35. In this connection, I may notice another argument advanced by the plaintiffs learned Vakil. He contends that under section 1 of the charter act of 1833, what is vested in the Company in trust for His Majesty are "The lands and hereditaments, revenues; rents and profits of the said Company" and not "The territorial acquisitions and revenue?" This objection is not, in my opinion, sound; even granting it is, it does not avail the plaintiff; for, what was granted is, in any event, the land of the Company. Is the objection then sound? I may now glance at the provisions of the earlier and later Charter Acts. In the act of 1853 (16 & 17 vict. ch. 95), the first section provides that ail the territories in the possession and under the Government of the East India Company shall continue Under such Government in trust for Her Majesty. The word, "continue" is in this connection significant.
36. The act of 1858 (21 & 22 vict. ch. 106) refers in similar terms to the Government of the territories being vested in the Company in trust for Her Majesty. It is by this Act that the Government is transferred to Her Majesty. The Statute makes it clear that the rights previously vested in and exercised by the Company in trust for the Crown, shall thenceforth become vested in and be exercised in the name of Her Majesty. This shows beyond all possibility of doubt that it was the Crown that was previously the sovereign and that the rights were exercised by the Company for the Grown but that subsequent to the passing of the Act the Crown directly exercised these rights and not through the medium of the Company.
37. The Royal Titles Act of 1876 (39 Vict. Ch. 10) has been relied on by the plaintiff. It is urged that it refers to a transfer of Government and the word transfer implies that the Crown did not previously possess sovereign rights. It is impossible to uphold this contention, for the very section referred, to by the plaintiff's learned Vakil re-affirms the position that previous to 1858 the Government of India had vested in the East India Company in trust for "Her Majesty.
38. Now turning to the earlier Charter Act of 1813 (53 Geo. Ill, Ch. 155) we find that the sovereignty of the Crown was clearly emphasised and it is affirmed that the territorial acquisitions are under the Government of the Company "without prejudice to the undoubted sovereignty of the Crown."
39. The view I have taken derives support from the observations of the Judicial Committee in Secretary of State y. Kamachee Boye Sahaba 7 M.I.A. 476 : 13 Moo. P.C. 22 : 7 W.R. (Eng.) 722 : 4 W.R.P.C. 42 : 1 Suth. P.C.J. 373 : 1 Sar. P.C.J. 684 : 132 R.R. 7 : 15 E.R. 9 : 19 E.R. 388. At page 531 Page of 7 M.I.A.--[Ed.] their Lordships refer to the powers of the East India Company as delegated powers of sovereignty and at page 540 Page of 7 M.I.A.--[Ed.] they refer to the Company as the delegate of the British Government.
40. In Haji Mahamad Naeurudin Khan Bahadur v. Egambara Mudaly 2 M.L.T. 55 Subramania Iyer and Benson, JJ., assumed (the question was not raised) that the Crown Grants Act applied to a grant of 1818. In Sheo Singh v. Raghubans Kunwar 27 A. : 634 : 9 C.W.N. 1009 : 2 C.L.J. 101 : 15 M.L.J. 352 : 32 I.A. 203 : 8 O.C. 317 (P.C.) there is no discussion but the Act was held to apply to a grant of 1861.
41. The contention raised is, in my opinion, unsound and must be rejected.
42. The next contention of the plaintiff is that the reference to Her Majesty the Queen, in the Crown Grants Act, as "The Queen-Empress" indicates that the Legislature intended that the Act should apply only to grants subsequent to 1876 when that title was assumed by Her Majesty. This distinction is too refined and unsubstantial and I cannot possibly accept it. Long-previous to the Crown Grants Act, the title of the Queen-Empress had become firmly established and it seems unsafe to found an argument on the mere fact that in referring to Her Majesty the words "Queen-Empress" are added. It would be both usual and natural to speak of Her Majesty as the Queen-Empress and much stronger ground, I should imagine, must be shown, for limiting the scope of the Act in the way suggested.
43. The next contention advanced by the plaintiff's learned Vakil is, that the Crown Grants Act is ultra vires of the Indian Legislature.
44. It is urged that the Crown cannot create an estate unknown to the law and that the estate created by the grant is of this description. Mr. Anantakrishna Iyer, the learned Government Pleader, answers that this is not an estate unknown to the ordinary law, and relies upon the passage at p. 487 of Vol. VI, Halsbury's Laws of England:
A grant by the Crown may contain a condition against alienation.
45. His second answer is, that this estate is in any event not unknown to the Indian Law and in support of this he cites Gulabdas Jugjivandas v. Collector of Surat 3 B. 186 : 6 I.A. 54 : 3 Sar. P.C. 3. 889 : 2 Ind. Dec. (N.S.) 125 (P.C.). In the view I have taken it is unnecessary to deal with these points. Granting that the Crown cannot create an estate of this kind, the Crown Grants Act expressly confers this power upon the Crown and. this leads to the consideration of the question whether the Crown Grants Act is ultra vires of the Indian Legislature.
46. Section 22 of the Indian Councils Act, 1861, enacts that the Governor-General in Council shall have power to make laws for all persons and for all places and things in the Indian territories. But the plaintiffs relied upon the proviso that the Governor-General in Council shall not have the power of making any laws which may affect the authority of Parliament. How does the Crown Grants Act affect the authority of Parliament? The prerogative of the Parliament remains unaffected
" and notwithstanding the Act, it can create estates unknown to the law. Further, if the Parliament itself could have passed the Statute, why should not the Indian Legislature created by an Act of the Imperial Parliament, have the same power? As observed by their Lordships of the Judicial Committee in Empress v. Burah 4 C. 172 at p. 180 : 5 I.A. 178 : 3 C.L.J. 197 : 3 Sar. P.C.J. 834 : 3 Suth. P.C.J. 556 : 2 Ind. Jur. 618 : 2 Shome L.R. 63 : 2 Ind. Dec. (N.S.) 110 (P.C) the Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it and when acting within the limits prescribed, it has plenary powers of legislation, as large, and of the"same nature as, those of Parliament itself.
47. See also Hodge v. Reg. (1884) 9 A.C. 117 at p. 132 : 53 L.J.P.C. 1 : 50 L.T. 301 and Powell v. Apollo Candle Co. (1885) 10 A.C. 282 : 54 L.J.P.C. 7 : 53 L.T. 638.
48. The contention, therefore, that the Act is ultra vires fails.
49. It is lastly urged that the sanad contravenes the provisions of Section 8 of Madras Regulation XXV of 1802, which provides that proprietors of land shall be at free liberty to transfer their rights without previous consent of the Government. But this Regulation does not apply, because, in the first place, there was no permanent assessment of the land revenue, no revenue having been imposed at all in regard to this grant; secondly, the Government did not purport to act under the Regulation, nor "was the intention, of the parties that the sanad should be issued under it. The fact that the sanad was granted after the date of the Regulation does not necessarily make it a sanad issued under the Regulation. And the mere use of the words "sanad-i-milkiyat-i istimrar" does not show that the Regulation governs the sanad: see Secretary of State v. Rajah of Venkatagiri 73 Ind. Cas. 741 : 44 M. 864 : 30 M.L.T. 164 : 41 M.L.J. 624 : (1922) M.W.N. 1 : 26 C.W.N. 809 : A.I.R. 1922 P.C. 168 : 48 I.A. 415 (P.C.); thirdly, the form of the grant is not that prescribed for sanads under the Regulation. Why should a grant then not, made under the Regulation, be by a fiction treated as made under it and why should it be assumed by so treating it, that provisions of the Regulation were deliberately infringed?
50. I, therefore, hold that this contention also is untenable.
51. As I have said in an early part of this judgment, the question that has been raised is in regard to the validity of the covenant imposing a restriction on alienation. No argument has been adressed to us in regard to the other restrictive covenant as no question bearing on it arises in the case and I do not desire (and indeed it is unnecessary to do so) to say anything at present regarding that covenant.
52. I have now dealt with all the points urged on behalf of the plaintiff. As 1 have rejected all his contentions, the appeal must be allowed and the suit dismissed with costs throughout.
Srinivasa Iyengar, J.
53. My learned brother and myself have practically heard this appeal twice over and after giving the case my very careful consideration, I have also come to the conclusion that the appeal should be allowed.
54. The appellant is the Secretary of State for India in Council. He was the defendant in the original suit from which this appeal arises, instituted by the present, Raja of Bhadrachalam and his sons as plaintiffs as the owners of a village called Ravicherla and situate in Kistna District. The action was a curious one. The reliefs prayed for were
"that it should be declared that the plaintiffs were absolutely entitled to the village of Ravicherla and to dispose of the same, that the sanad issued in respect of the said village should be construed and it be declared that Clause 3 of the same is void, illegal and invalid and not binding on the plaintiffs, that even if it were held that the consent of the Government is necessary (for the plaintiffs disposing of the said village), the Government have no right to withhold their consent arbitrarily."
55. It may be convenient to dispose of the claim put forward in the last of the prayers above referred to. On the face of it, it is merely an alternative prater, and it is to the effect that if the Court should find that Clause 3 is not invalid or illegal and that the same was binding on the plaintiffs, still it should be declared that the Government had no right arbitrarily to refuse to consent to any alienation, that may be attempted to be made by the plaintiffs. The suggestion of the plaintiffs with regard to this matter must obviously be that the Government was under some sort of obligation to exercise a proper discretion in according or refusing the permission that might be applied for by the plaintiffs to alienate the property and that in declining to accord such permission as stated in para. 8 of the plaint without assigning any reasons, the Government acted arbitrarily and, therefore, illegally. No arguments were addressed to us and no grounds advanced or referred on behalf of the plaintiffs-respondents for establishing that the Government was under any such obligation hot to exercise its discretion arbitrarily or that they were bound to give any reasons for declining to accord the permission applied, for. The third issue in the case was whether the Government acted arbitrarily in not stating the reasons in refusing sanction for the alienation and if so what is the effect thereof." This issue was found against the plaintiffs by the lower Court, and that finding was not attacked in the argument before us. The Subordinate Judge, however, found the other issues in the case in favour of the plaintiffs and granted a decree declaring the right of the plaintiffs, to alienate the property without any previous permission of the Government. It is against this decree that the appeal has been filed on behalf of the defendants, the Secretary of State for India.
56. I have, found some difficulty in understanding the judgment of the learned Subordinate Judge in the Court below. In para. 12 of his judgment he states thus: "If the grant is to be considered as having, been made by the Government, there is nothing illegal or invalid or void and inoperative in the conditions imposed by the Government." This view would seem to be qualified by him in the next paragraph of his judgment where he states thus; "The village of Ravicherla was held under Sarva Mukhasa tenure by Venkatnma. The mare resumption of that village by Government cannot alter its nature, in the hands' of the Government it was an absolute estate (one on an absolute and permanent tenure), It was made over to the plaintiffs' ancestors under Ex. J and the restrictions imposed were intended as a cloak to shield the properties from the fangs of the creditors at the time but not to limit the nature of the estate given over. The plaintiffs hold the village on an absolute permanent tenure".
57. Two arguments would seem to be indicated in the above extract from the learned. Subordinate Judge's judgment and these are (1) because the village had been granted on Sarva Mukhasa tenure, even in the hands of the Government the village was, only Sarva Mukhasa, and the Government had no right to re-grant it to any other person except as a Sarva Makhasa, that is to say, according to the Subordinate Judge, on an absolute and permanent tenure, and (2) that the condition in respect of alienation was not really intended to be operative as between the grantors and the grantees; but was intended to be merely a cloak to shield the properties from the fangs of the creditors. There are obvious difficulties in the way of accepting either of these views. In fact, I did not understand the learned Vakil for the respondents to argue for either of these two positions. There is absolutely no warrant for supposing that even after resumption any conditions or characteristics by the tenure on which it had been previously granted continue attached to any property. And I further fail to see on what ground the learned Subordinate Judge supposes that even after resumption, the absolute owner of property, as he recognised the Government of the day to be, had no right to make a fresh grant of the property to some other person on a different tenure or on terms and conditions different to the previous grant. Sarva Mukhasa tenure is supposed by the learned Subordinate Judge to be absolute property, but apparently it was of a resumable nature. I can see no principle or reason for any of the suppositions made by the learned Subordinate Judge with regard to this aspect of the case. As to the second point above referred to, the view that the learned Subordinate Judge took would appear to be that Clause 3 in the sanad restraining alienation by the grantee except with the permission previously obtained from, the Government was not really intended to be operative as between the parties to the grant and was to be in the grant merely as a cloak to save the property from the fangs of the creditors. It is one thing to say that a particular clause in a document was put in with the object or purpose of saving the property from the fangs of creditors and another altogether to say that it was never intended to be operative or binding between the parties. Assuming that a condition was inserted in a grant with a particular object it does not follow that the condition is valid or operative only to the extent of securing or sub serving the particular object had in view, it cannot be open to parties to a document to contend that in spite of the clear terms of a particular clause in a document, such clear terms should be allowed to be controlled or modified by the avowed object with which the clause was inserted. It is, no doubt, true that the clause appears to have been inserted in the sanad with the primary object of saving the property from the creditors of the grantees; but the restriction imposed was not "that it was incapable of being taken, sold or otherwise dealt with in execution of a decree or at the instance of creditors but that the grantees should have no power to alienate the property. It is, therefore, clear that what was done was to secure the intended object only by restraining the power of voluntary alienation by the grantees and obviously, therefore, to protect the property not only from the creditors but to protect the grantees against themselves. In these circumstances I cannot agree with the learned Subordinate Judge that the clause was not intended to be operative as between the grantors and the grantees.
58. As regards the theory of the clause being a mere cloak, I must take it that what the learned Subordinate Judge means is that the clause being void and inoperative was intended merely as a cloak, that is, as something calculated and designed to conceal the truth, namely, the real alienability of the subject-matter of the grant. It is, only therefore, if, as a matter of fact, the clause restraining alienation was invalid and the subject of the grant was really alienable that the explanation of the clause as a cloak would be of any value. The main question, therefore, for determination in this s appeal is whether the condition against: alienation contained in Clause 3 of the sanad is valid and binding on the grantees and this indeed was the question with regard to which the learned Vakil for the respondents addressed all his argument. It was put in two ways. The first contention might not inaccurately be described as an argument on the facts. It was said that though there was a formal sanad given by the United East India Company, the Government for the time being, to the grantees the ancestors of the plaintiffs, still, the plaintiffs' ancestors did not obtain the property under or by virtue of the grant but the property was either their own, and if not, was obtained by them as the result of a family agreement made by and between their branch and the other branches of their family. Very able and ingenious was the argument advanced by the learned Vakil for the respondents on this aspect of the case. The contention itself is formulated by the plaintiffs in paras. 4 and 5 of their plaint in the following terms: "Hree Raja Venkatadri Appa Rao Bahadur and Sree Raja Simhadri Appa Rao Bahadur, the father and uncle respectively, of the first plaintiff herein were entitled to a "share in the Nuzvid Zemindari. At the original partition of the said estate which took place in or about 1770 they were excluded by mistake. The first plaintiff's father and uncle pressed their claims to the said zemindari. The then Government of Madras interceded and in or about 1835 a settlement was arrived at by which it was inter alia agreed that the village of Ravicherla should be granted to the plaintiff's father and uncle on an absolute and permanent tenure. In pursuance of the said settlement in or about 1840, the said village, was granted to the first plaintiff's father and uncle on an absolute and permanent tenure and put in their possession. Three years thereafter in or about 2nd May, 1843, a sanad-i-milkiyat-i-istimrar was granted in respect of the said property." The real import of this contention is, I take it to be, that the plaintiffs' family obtained the property not from the Government, that the Government had not the property in them to give it away, that it was property which was at any rate in the order and disposal of the other branch of the plaintiffs' family and that the plaintiffs' branch of the family obtained it not as the result of any grant by the, Government but as the result of a family arrangement between the different branches of their family, and that, therefore, the sanad which was granted in respect of the village of Ravicherla subsequently by the Government and accepted by the plaintiffs' branch of the family was not the real source of the plaintiffs' title to the property, was a mere sham deed and should not be looked to for the purpose of determining the plaintiffs' rights. If on the facts I should have been disposed to agree with the contention, it might become necessary to consider whether assuming that the plaintiffs' predecessors obtained the property as the result of the family arrangement between them and the other branches of their family, still 'the acceptance by them of the sanad in question from the Government could affect their, rights to the village and if so in what manner and to what extent, and whether in that view the clause in question would or would not be binding on them. But, in my view, it is unnecessary to consider that question, because after a careful consideration of all the documentary, evidence in the case, that is to say, the only evidence before us, it is clear that even on the facts the contention put forward on behalf of the plaintiffs-respondents could not be accepted. For some reason into which for the purpose of this appeal it, is unnecessary to enquire, the Nuzvid Zemindari was at the time, of the Permanent Settlement early in the last century settled by the then Government not on all the branches of the family but on two of its branches alone, excluding the branch to which the plaintiffs belonged. In consequence of this, the plaintiffs' branch of the family launched on a protracted but unsuccessful litigation for the purpose of recovering from the other branches of their family their share or alleged share in the zemindari. After, however, all this litigation was over, it appear to have been realised by some of the authorities of the Government at the time that the original settlement of the zemindari to the exclusion of the plaintiffs' branch of the family was due to some mistake and that something should be done to repair the injustice, if only in consideration of the helpless condition in which the plaintiff branch of the family then was. We thus find in Ex. III that Mr. Russell, Collector of Masulipatani at the time, addresses the Board of Revenue in the following terms: "Throughout the whole of the correspondence which passed on this subject-there does not appear to be the slightest trace of it ever having been pro posed of intended, to grant a part of the lands to the petitioner; and I confess it seems to me that the only possible blame which the Government can take to themselves for the manner in which they disposed of the country is, the omission to secure the petitioner a pension similar, to those assigned; to some others who were in like situations. That this omission has involved him in, great distress is certain and it is no less, true that the now established denial of bra having had any hereditary right to the lands must for ever preclude him from; obtaining relief from his brothers by declaring the zemindari to have been acquired by them. Under these circumstances, there fore, and more particularly as my official'; situation rendered it my duty to oppose his claim in it's progress through the Courts, I shall feel happy if my present address should be the means of inducing the Government to give him some allowance for his maintenance. But I should not omit to mention that the facility with which the unfortunate decree of the Provincial Court enabled him to borrow money has plunged him over head and ears in debt to. persons who hoped to profit by his obtaining a share of the country and that the good intentions of the Government will, therefore, be frustrated unless anything which they, may give him shall be protected from the fangs of his creditors."
59. The Board of Revenue, however, as will be seen in Ex. II, did not take a favourable: view of the recommendations of the Collector, because they still believed that though, not in the zemindari yet in the other properties pf the joint family, the plaintiffs'; branch might have a right and that in any, case to seek to make a provision for the plaintiffs' branch of the family might constitute, a dangerous precedent with respect to the members of zemindari families all over the country. But the Governor in Council at the time would appear to have taken a refreshingly humane view of the situation, as will be seen at the concluding portion of Ex, A, where the following passage appears: "The Governor in Council cannot entertain the idea that it is befitting for the Government to look on with passive indifference at a claim like this or at, the fate which attends it in Courts of Law. It is not sufficient for the Government that, in the manner of restoring the zemindari, they exercise of a discretion which no body had power to question, that no Jaw has been infringed in the treatment which Narsimha Appa Rao has met with, and that, if he had received better legal advice, the ruin in which he has been involved might Lave been less complete. "The Government must not merely let the law take its course, but must exercise a paternal care over the people. It has to preserve their affections as well as its own authority, hi reviewing the circumstances of the case under consideration, it appears clearly that Narasimha Appa Rao has been cut oil from the provision to which he had an equitable claim. The Government are answerable for the injury which he has sustained. They are answerable also for the ruin in which, owing) to the ambiguity in which they left his claims and, to the course which their judicial institution led him to adopt, he has been involved. They are answerable for these wrongs not before a Court of Justice, any more than they would have been if, in consequence, of similar oversights, the country had been thrown into disorder and the lives and property of its inhabitants exposed to hazard. But their responsibility is a matter of reason and of conscience and should induce them to do all that is practicable to compensate for the wrongs which have been committed. Whether fresh legal proceedings should be instituted is a question of prudence to be determined according to their probable result. But the Governor in Council trusts that the necessity of legal proceedings may be suspended by the influence of the Collector. If out of the revenues of the zemindari, ah adequate provision is made for the future support of Narasimha Appa Rao, and a composition effected with his creditors, the further interference Of the. Government will not be required. But if the zemindar be advised, to rest secure in the terms of the Government grant, it will then remain to be considered what measures will be most advisable with the view of giving effect to what must be presumed to have been the intentions of the Government when that grant was made."
60. In Ex. A-1 the Government asked the Collector of Masulipatam to point out that both in honesty and in law, at least a proper maintenance should be settled on the plaintiffs' branch of the family and asked the Collector to explain these sentiments of the Government to the zemindar and express the anxious hope of the Government that he should lose no time in proposing such effectual relief as may remove from the plaintiffs' branch of the family the distress they were in." This was in February, 1821. But apparently the Collector was not able to achieve anything by persuasion and we find from Ex. B that the Government finding themselves unable to bring the zemindars to any reasonable settlement required the Judges to suggest ways and means of setting right the injustice perpetrated at the time of the Permanent Settlement, and thereupon steps were taken for making and approving of a draft regulation respecting the Nuzvid Zemindari to set aside the inequitable division at the time of the Permanent Settlement and to bring about another Settlement giving a share to the plaintiffs branch of the family. This draft regulation is Ex. C-1. Though this was got ready about June, 1821, in September following, other Counsel would appear to have prevailed and the Government asked the Board of Revenue in Ex. C-3 that no measures be taken for carrying into effect the proposed regulation.
61. It was after this as may safely be surmised from Exs. VII and D that the Governor of Madras sometime early in the year 1835 personally settled all the disputes and, differences between the various branches of the family and persuaded the other two branches of the family to confer a pension for maintenance of Rs. 600 per mensem on the plaintiffs' branch of the family, (see Ex. D-1). The point in this discussion with regard to this pension is that it was refused to be accepted by the plaintiffs' branch of the family at first and as a condition for accepting the same they stipulated for a grant to them of three small villages from the Government independent of the pension to be granted by their brothers of Nuzvid and Nidadavole (see Ex. B). In Ex. F bearing date the 16th day of October,, 1837, the Collector of Masulipatam addressing the Board of Revenue states that he could not have persuaded the plaintiffs' branch of the family to accept the arrangement regarding the pension without pledging himself that the Government, to mark their satisfaction at the good understanding which has taken place between the brothers, will make over to Simhadri Appa Rao the two villages of Ravicherla and Sriramayaram. It is also significant that in the documents obtained by the Collector from the other two branches of the family with regard to their final undertaking of the obligation to pay the pension agreed to, there is not the slightest reference to the village of Ravicherla or the settlement of the same on the plaintiffs' branch of the family. From the terms of Ex. VII it is abundantly clear that even at the time of the original settlement of the disputes and differences between the various branches of the family, it was distinctly understood and repeatedly explained to the Zemindars of Nidadavole and Nuzvid that the Mukhasa village of Ravicherla had lapsed to the Government, and that it had, been even prior to that date attached by the Collector, as being the property of the, Government.
62. Exhibit G speaks of the sanads to be granted by the Government with respect to the villages of Ravicherla and Sriramavaram as conferring the villages on Sim hadri Appa Rao. Again in the arzee, dated 17th August, 1838, submitted by Rajah Simhadri Appa Rao Bahadur to the Col lector of Masulipatam he speaks of the cowle to be granted to him for the villages of Ravicherla and Sriramavaram conferred on him by the Government. Again later on in the same document he states as follows with reference to the contemplated provision regarding the preventing of alienation of property:
"The provision which the Honourable Government have thought proper to make in the cowle that the above villages are not to be liable for sale on account of the debts contracted by my father Rajah Narasimha Appa Rao and my self prior to the date of the grant, will secure to me the villages benevolently conferred by. Government for my permanent subsistence in consideration of the distressed condition of my family."It is also significant that one of the provisions finally agreed to be inserted in the sanad as the result of the negotiations between the plaintiffs' family and the Government was that the succession to the village should devolve upon such of the heirs of the present grantees as the Government may determine after their death (see Exs. V and H)
63. Again in Ex. 'J' the sanad in respect of the suit village, the recitals contained in clear terms a reference to the village of Rawcherla having reverted to the Government.
64. All this mass of documentary evidence makes it abundantly clear that the J of Ravicherla was dealt with at the time of the sanad as property which had reverted to the Government and become vested in it, so as to be capable of being disposed of by the Government at their pleasure when the question arises as regards the ownership of property in some period, the evidence afforded by some urimpeachable ancient documents should seems to me, be accepted beyond question I may indeed go further and state that language of most of these document absolutely inconsistent with the contention put forward on behalf of the respondents that the village of Ravicherla did belong to the Government but was property which still at the time of the grant vested in other branches of the family and that all the documents including he sanad were elaborate devices for the purpose of effecting curious camouflage and making it appear that the property belonged to the Government in order that they may insert in the sanad restrictive provisions regarding the inheritance to and the disposal of the village I am further satisfied; that if what intended was such an elaborate device, the language used would have been entirely different to that employed in the document. I feel, therefore, bound to reject the contention that the plaintiffs' family acquired the property not as the result of a family by the Government and that the plaintiffs' family acquired the property not as the result of any such grant fa family arrangement with the other members of the family. I also fail to see how to the village of Ravicherla being treated as the property of the Government for the purpose of its being granted on the terms setout in the from the Government but as the result of a family arrangement with the other members of the family. I also fail to see how, if indeed all the parties at the time agreed as the property of the Government for the purpose of its being granted on the terms set out in the sanad to the plaintiff family, it could now be contended that there was no such title in the Government o impose any such conditions. However, as I have already observed it is unnecessarily an view of the decision I have arrived at, that the grant was by the Government itself, which had the property vested in it at the time so as to enable if to make the grant, that there should be any further consideration of the legal effect of the plaintiffs family having accepted a sanad in respect of the village from the Government and having purported to continue, to hold it under the terms of the sanad till the other day when they applied to the Government for permission to alienate the property, a permission which was refused.
65. But this conclusion does not dispose of the case, because it is only a conclusion with regard to what may be said to be the argument based on facts. But, assuming that the sanad should be deemed or regarded as the source of the plaintiffs' title to the village in question and that, therefore, the nature and extent of the rights with regard to the prayers in the plaint should be determined by the sanad itself and the terms therein set out, the contentions were even more ingenious and strenuous which were put forward by the learned Vakil for the plaintiffs to establish that the plaintiffs' right to the village should be adjudged to be absolute and untrammelled by any conditions.
66. The first argument had reference to the Crown Grants Act XV of 1895. It was not in its true nature so much an argument as an answer by way of anticipation. The learned Vakil for the plaintiffs assumed" that for the defendant the Crown Grants Act will be referred to and relied upon as enabling or justifying the alienation and began by assailing it in limine. But looking at the preamble and considering the purpose of the Act it cannot be doubted that the Act was rather declaratory in its nature than enabling or enacting. It had to be enacted, so says the preamble, because doubts had arisen as to the extent and operation of the Transfer of Property Act: of 1882. Prior to the Transfer of Property Act, there was no statutory enactment of the Indian Legislature regulating transfers of property But after that Act was passed, apparently doubts came to be expressed or entertained whether that was an Act governing transfers of property by act of parties between subjects of the Grown or whether the provisions of the Act applied also to transfers of property by the Crown. Taking the terms of the Crown Grants Act, the inference seems to be irresistible that prior to the Transfer of Property Act, there was no doubt whatever as to the power of the Crown to make a transfer, of property in any terms, or under any of the conditions, whatsoever. Apart from one argument which shall be referred to hereafter, the learned Vakil for the plaintiffs; did not refer to any limitations oh the power of the Crown to create or transfer estates, previous to the passing of the Transfer of; Property Act. The personal law of the Hindus or Mahammadans or other communities in India could not possibly affect the rights of the Christian sovereign power. If all acts of Legislature, owe their origin to the sovereign power whatever that may be, in the absence of clear indication to the contrary, the provisions of the statutory law should (be regarded as governing transactions only of the subjects of the sovereign power and not of the sovereign power itself. Further the rules of law whether statutory or otherwise, governing and regulating transfers of property as between subject and subject of the soverign power, are based or should be deemed to be based on principles which cannot in, any wise be regarded as applicable to a transfer by the sovereign power itself. As I read the Crown Grants Act, it became necessary for the Legislature to pass such an Act altogether declaratory in its nature, merely accuse of the doubts which came to be entertained after the passing of the Transfer of Property Act. The meaning and significance of Crown Grants Act of 1895 is merely a re-statement of the principle underlying Section 3 thereof, namely, that the Crown is entitled to impose any restrictions, conditions or limitations over, whatsoever, in any grant or transfer it may make whether such restrictions, conditions or limitations over, would be legal or valid or not in any grant or transfer made by one subject, to another, and it became necessary for the Legislature to re-state and re-affirm the principle only because of the doubts that arose subsequent to the passing of the Transfer of Property Act cannot, therefore, regard the Crown Grants Act, as an enacting or enabling measure of the Legislature or even as a ratifying Act with retrospective effect making legal that which was not so. An explanatory and declaratory Act cannot be regarded or construed as if it were an enactment creative or regulative of rights or obligations. It seems to me, therefore, unnecessary to deal in detail with the very longhand learned argument addressed to us for the plaintiffs with special reference to the Crown Grants Act. I am satisfied that the sanad in this case which was a grant by the State or sovereign authority would be binding according to its tenor. I shall, therefore, merely refer briefly to the other contentions of the learned Vakil for the plaintiffs. His first contention was that Section 3 providing for Grown Grants taking effect according to their tenor refers merely to such grant or transfer as aforesaid, and, therefore, refers back to Section 2 and is confined in its operation to a grant or transfer heretofore made or hereafter to be made by or on behalf of Her Majesty the Queen-Empress, her heirs or successors or on behalf of the Secretary of State for India in Council. The Secretary of State for India in Council came into being only on the assumption, by Her Majesty Queen Victoria, of the Government of India in 1858 and the title of Empress of India was conferred on Her Majesty only in 1876 and the argument founded thereon was that, therefore, the grants and transfers of property to which the Act is applicable are only grants and transfers made subsequent to 1858 or 1876. But, I have already come to the conclusion that the Act, as such, is intended to be limited to only grants and transfers subsequent to the passing of the Transfer of Property Act. When Section 2 lays down that nothing in the Transfer of Property Act shall apply or be deemed to have applied to any grant or transfer made before 1895 or to be made after 1895, 1 cannot regard the Act as intended to apply to the construction of any grant made previous to the year 1882. But, at the same time, I cannot accept the argument of the learned Vakil for the plaintiffs that merely because the expression used is "Queen-Empress" and that title was conferred on Her Majesty only in 1876, the Act must on that ground be confined in its operation only to grants or transfers made subsequent to 1876. The mere fact that a person is referred to in a document, albeit a Statute of the Legislature, by his or her present title seems tome to be no reason, apart from the context, to hold that a limitation or definition of the time is thereby introduced impliedly, by referring only to the period of time subsequent to the adoption or conferring of the title and there seems also no reason for supposing that the expression was not used merely to indicate the sovereign bearing the title.
67. The next contention for the plaintiffs was that previous to the assumption of the sovereignty of India by the Crown in 1858, the sovereignty was in the United East India Company and that, therefore, the Grant which was made in. the year 1843 under the sanad issued by the Company could not be regarded as a grant by or even on behalf of the Crown This contention has been to my mind conclusively answered by the learned Government Pleader who appeared for the Secretary of State. The Parliamentary Act 3 and 4 Will. IV, c. 85 both in the preamble and in Section 1, provides and declares that the territories, revenues, etc., of India in the possession, and under the Government of the Company shall remain and be vested in the Company in trust for His Majesty and even in the Government of India Act; 1853,similar words were used. In Gibson v. East India Co. (1839) 5 Brag. (N.C.} 262 : 7 Scott. 74 : 1 Arn. 493 : 8 L.J.C.P. 193 : 132 E.R. 1105 : 8 Jur. 56 : 50 R.R 688 the general principle of law is, referred to that all conquests made by subjects necessarily belong to the Crown and in the case of Advocate-General v. Richmond Perry C.C. 566 at p. 576 : 4 Ind. Dec. (O.S.) 516 it is pointed out that the vesting of the territories and revenues In the United East India Company is in trust for His Majesty for the service of the Government of India: see also Secretary of Stale for India v. Kamtickee Boye Sahaba 7 M.I.A. 476 : 13 Moo. P.C. 22 : 7 W.R. (Eng.) 722 : 4 W.R.P.C. 42 : 1 Suth. P.C.J. 373 : 1 Sar. P.C.J. 684 : 132 R.R. 7 : 15 E.R. 9 : 19 E.R. 388. It seems to me unnecessary to refer to all the cases that have been cited at the Bar in connection with this question, because the terms of the Statute are to my mind perfectly clear.
68. It was also argued by the learned Vakil for the plaintiffs that even assuming that the Government of the country was carried on by the Company in trust for Her Majesty it does not follow that the grant was a grant made, on behalf of Her Majesty. The contention was that the expression "on behalf of" imports some sort of agency and that it cannot be said that a grant by a trustee is on behalf of the beneficiary. I cannot possibly agree with such a contention, and having regard to the context in which the terms have been used I feel no difficulty whatever in holding that when a grant is made by an agency exercising delegated sovereign power, the grant is properly described as made On behalf of the supreme sovereign power. The next argument advanced on behalf of the plaintiffs was not on the Construction of the Crown Grants Act but with regard to the entire Act on the footing that the Act itself was ultra vires of the Indian Legislature. It was said that under the English Common Law the Crown cannot create an estate unknown to law. It may well be asked, unknown to which law? Is it the Common Law of England or India or the Statute Law of England or this country and what is the meaning of the expression "estate unknown to law." An estate inalienable in its nature is not an estate unknown to law. But after all I fail to see, how, assuming for the purpose of the argument that the contention is well founded that, the Crown cannot create an estate unknown to law, that makes the Crown Grants Act ultra vires. The Indian Legislature is, while legislating within the limits imposed by Parliament, in the same position as an independent and absolute Legislature. Under section 22 of the indian councils act, 24 & 25 vict. ch. 67, the Governor-General in Council is empowered to make laws for all persons and for all things whatever. There is, however, in that section a proviso, that the Governor-General in Council shall not have the power of making any laws or regulations which shall repeal or in any way affect any of the provisions of that Act and certain other Acts therein referred or which may affect the authority of Parliament, or the constitution and rights of the East India Company or any part of the unwritten laws or constitution of the United Kingdom of Great Britain and Ireland whereon may depend in any degree the allegiance of any person to the. Crown of the United Kingdom, or the sovereignty or dominion of the Crown over any part of the said territories.
69. Mr. Venkatarama Rao's argument, if I understand him lightly, was to the effect that it was part of the Common Law of the United Kingdom of great Britain and Ireland that the Crown cannot create an estate unknown to law and the said proviso forbids the Governor-General in Council from making any law which will affect any part of the unwritten laws or the constitution of the United Kingdom of Great Britain. But he omitted from consideration altogether the qualifying clause beginning with the words "whereon may depend in any degree the allegiance of any person, etc." I am unable, therefore, to accept the argument that the Crown Grants Act should be regarded as ultra vires for the reason that it enables the Crown to create an estate unknown to the law.
70. A further contention was also advanced to the effect that the Crown Grants Act was ultra vires also because it was calculated to affect the authority of the Parliament. I must confess I was unable to understand the argument of the learned Vakil, with regard to this contention. I cannot even imagine bow, assuming that the Act enables the Crown to create an estate unknown to the law, the authority of the Parliament is thereby affected.
71. For all these reasons, I have no hesitation in rejecting the contention of the learned Vakil for the plaintiffs-respondents that the Crown Grants Act is ultra vires of the Indian Legislature. But, after all, in the view I have taken, that the Crown Grants Act is not an enacting or enabling measure but for which the Crown could not make a particular kind of grant, but is only an explanatory and declaratory Act and in terms refers only to grants made subsequent to 1882, it seems to me futile to examine more minutely the contention that it is ultra tires.
72. The learned Vakil for the plaintiffs has not shown how otherwise the grant in this case should be regarded as void or illegal or not binding on, the plaintiffs.
73. There is only one other contention on behalf of the plaintiffs which remains to be noticed, and that is the argument based on section 8 of regulation xxv of the Madras Regulations. Under that section, it is provided as follows:
"Proprietors of land shall be at free liberty to transfer without the previous consent of the Government, or of any other authority, to whomsoever they may think proper, by sale, gift, or otherwise their proprietary right in the whole or in any part of their zemindaris."But this section and the Act itself apply only to lands for the revenue payable to the Government in respect of which an assessment is permanently fixed. In the case before us, no such permanent assessment is fixed or made payable to the Government under the sanad. This argument also, therefore, fails. In the result, I agree with my learned brother in the conclusion that the judgment of the lower Court cannot be sustained and that, therefore, the appeal should be allowed and the plaintiffs' suit dismissed with costs both in this Court and in the Court below.
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