ZilJSh Judge.

. .

Petitioner's claim t o interest, Cross appeals were presented by both parties t o the

Sudder Dmvanny Adawht, and that Cuarrk, on the 13th of April, '1558, dkmhsed the

L

VI1 MOORE IND. APP., 666 EAST INDIA C'o, 'UI SUED ALLY [I8271

+

Carnatic and the Gvvernor in Council atl Madras, the, aovereign rbh t s b of t.110

Nawab in the Cwrnrttic were vested in the East India. Company.

Held, that a resumption by the Madras Government of a Jaghire granted by 1 -

former Nawah, as Altimghah enam, before the

regrant by the Madras Government to another

8uch an act onf Sovereign power by the East India

Supreme Court at Madras from taking cognizance

date of the Treaty, and a

for1 a life estate only, wa8

Company, aH precluded tlhe

of a. lsuit by the heira of the

L ori-inal 43 grantee in respect of mch resumption.

The Supreme Court at MadrM admitted an appeal to the King in Council after

the expiration of six month8 from an original decree+ Held, tmhat he Court

was not authoIrixed by the Madrm Charter of 1800, creatiIlg the Supreme

Court, to grant leave to appeal.

Upon a Bpecial application to1 the King in Council, founded upon the, fact that the

previous uniform practice of the Supreme Court st Madrams, though upon an

~ r r ~ ~ n e o - u s conatruction of the Charter, wa-s to admit only appeals upon It,

final. decree; leave tro appeal was' granted by tJhe Privy Council.

This was an appeal from t w o decrea of the Supreme Court at Madpas bearing

date the 22nd of May, 1820, and the 28th of Julyp 1821, in a s u i t instituted in that

Court by the, Respondents a8 co-heirs; according trio the Maholmdan law, of their

father, Assim Khan, [566] deceased, against the East India Company,. and Kullee

Moolah Khan 3 the eldest son of Asaim Khan; Ally Moon Niwa Begum, the widow of

Assirn Khan ; Syed Ahmed ; Syed Yahyah;'Nagaboon Nima Begum, the other children

of Assim Khan, as Defendants, for obtaining a partition oIf a Jaghire consisting of

lands and villages,with an account of the rents and profits,in the Province o f Arcot in

the Carnatic,original~yg.ranted to Ass.im Khan by the Nawab Wallaj ah, and re-granted,

on cert.ain conditions, by the Appellants to the Defendant, Kullee Moolali Khan, and

of which, previous to such. re-grant, the Appellants had taken polwession, on, their

general amumption by the Government of the Carnatic in 1801, followed by a Treaty

of cession of the territory from the Nawab of the-Carnatic to the Appe1larit.s.

The suit arose under the following circuxrrstances :-

Wdlajah, the Nawab of the Clarnatic, on the 29th of July3 1789, granted tu Syed

Mahomed Assim, Khan Behander Mcmbaransa Jung, hereinaf t-er1 called Assim Khan,

an officer of high rank in the Nawnab's service, and at the date of the grants one of

his ministers, a Jaghire, o r Etasignment of the Government ahare of the produce of the

land, comprising one hundred and seve.nty-three villages of the yearly value af

37>216 pagodas, situate in the Provinco of Arcot, within the. Carnatic.

Amirn Khan entered into the posplession of the Jaghire under the grant, continued

in the receipt and enjoyment of the revenues and profits thereof, until the time of the

assumption of the Carnatic by the Eastl India Company.

The Nawab Wallajah died on the 30th of November, 1795, and was succeeded by

0mdu.t ul Omrah, who by another grant under his mal, and dated the 30th of August-,

1797, confirmled the grant made by tha Wallajah to the Assim Khan and his descen-

dants, in perpetuity.

Omdut ul Omrah died on the 1st of July, 1801, when the, Governor-General in

Council of Madras, f o r political considerations, under Treatiml of subsidy and

alliance previoualy entered into1 by the Government with the thsn Sovereign of the

Carnatic, took possemion of the territories, and assumed, provisionalIy, the Govern-

was aettled.

On the assumption of the Carnatic by the East India Company, a proclamation

was iasued by the then Governor. in Council, Lord Clive, calling upon the BubjWtB of

Arcot to. pay obedience to the British Government, and stating that all persons in

c.harge o f [W] rel@ms estabhhmmts, relations, Jaghiredam; p.e.nsioners; and

other dependanb on the bounty of the dmemed Nawab should sustain. no injury

from the temporary arrangement by the British Government.

' A negotiation w a ~ immediately opened by the Governor in Council with the

aucceeding Nawab., Azeem ul Dolah, and on the 31st of July, 1801, a Treaty was

concluded between the Nawab of the one part, and the Governor in Council, with the

ment of the Carnaticl, until the succeswm of the Government, then in negotiation 9

sanction of the Governor-General in India on behalf of the East India Colupany, on

418

h h i n g Courta far the administration a€ c iv i l and criminal judicature. The East

0

t

VI1 MOORE IND, APP,, 660 EAST INDIA CO. tL SYED ALLY [I8271

Jaghire had been current for a conside.rable period of time antecedent to that when

t h ~ . territorial possessions of the Nawab of Arcot became more immediately pledgcd

for the security of Hi8 Highneas's engagements to the Eaat Indiab Cbmpahy by the

h a t y of 1792, the Governor in Council deemed it expedient, and resolved t o restore r

the lands tol Ssed Kullee Moolah Khan, t o be held in Jaghire, dependent on the

British Government. The Governor in Council further resolved that the sunnud of

coiifirrnation and investiture should oolntain specific clauses for. that purpose. A

Perwannah was accordingly issued, daked 27th of March, 1802, which renewed -by thatl

- 7

instrument the Jaghire, but without the Sayer, salt or saltpetre dutiea, And it was

by the grant requl'red of Syed Kullee Mollah Khan that, in'taking possession of the

Jaghire, he should not consider any power or authority whatever over the rights,

privileges, liberty, or property of the inhabitants re.siding within the Jaghire to be

- -

thereby conveyed to him, and-that he waa in like manner, with all the other subjects

of the British Government, to be answerable to the jurisdictiun and control of the

Imvs and Regulations existing, or that might be established.

Under this grant, Kullee Modah Khan entered into posaession of the revenue.8

of the Jaghire, and held the same for fourteen yeami.

In the year 1813, the. Respondents commenced litigation in the Courte in India,

respecting their father'a Will.

On the 24th of July, 1817, the present suit waa commenced by a Bill filed in the

Supreme Court at Madraa by the Respondents, in which the East India Company

were, w i t h others, made Defendants. The claim of th.e Respondents at first rested

principally on the ground of alleged fraud and misrepresentation by Kullee Moolah

Khan in obtaining the grant from the Governor in Council by concealment of the real

&ate of his father's family. To this Bill the East India Campany demurred for the

want of equity, and the.demurrer came on to be argued on the 26th and 27th days

o f September, 181T3 when the demurrer wa8 overruled+ The other Defendants then

appeared, and by the answer denied the imputed fraud and concealment alleged by

the Bill. The Respondents amended their Rill, renouncing all claim to any benefit

under the Perwannah, or re-grant, by the East India Cornplan7 to Kullee Moolah

Khan, which they prayed might be delivered up and cancelled; and afterwards, by

their amended Bill, rested. their caae upon the v'a1idit.y and effect of the original

grants by the Nawabs, Wallajah and Omdut [560] ul Omrah, alleging that the late

Assim Khan was, a t the time of his death, seised of the Jaghire, as held in Altamahah b

enam to him and his posterity for ever; and the Bill charged, that the grants of the

Nawabs not only granted the revenue, o r the Government share in1 the produce of

the lands and villages, but alao all rights and privileges, powers, advantages, and

immunities which the Government had in the lands and villages, upon those lands

and villages for the purpose of disposing of, and re-letting, improving and cultivat-

ing such lands and villages, or for any other purpose the Government might have

done, saving and excepting the sovereignty thereof, and also saving and exceptinu t3

the rights and interests the cultivators and inhabitanb had or might have by law, in

the soil and. produce of thO lands and villagee; and that even if the grantsl were

merely the revenue or Government ahare, that in that case the Government would not

have been j us t i f i ed in the resumption of the lands and villages by reason of any

pretended right existing in the Mahornedan Government, for that such grants had

always been considered by the Mahornedan Government to be and were treated as

perpetual grantis> and not resumable at the pleasure of the Govern.rnent, o r on tJhe

change of the reigning Sovereign; and that the Government of Fort St. George, 011

such regumption, used a power which they were not lawfully possessed of, and which

had n o t resided in, o r at any time been exercieed by, the Mahornedan Government

towards their faithful subjects, and which the Government, by the proclamation

aforesaid, had disclaimed all intention of exercisinv e+ And the Bill pra.ved, that it

WaIlajah and Omdut ul Ombrah, to Aasim Khan were and had been in force ever

since the alssumption of the civil and military authority of the carnatic by * the East

India Company, and that Syed Alley, Bucka Sultan and Habiboon Nissa Begum

might be declared entMed t o their several and respective shares of the Jaghire . . lands

and villames B included under the same, namely, Syed Alley e to an equal share with his

might be declamd, either that the original Perwannahs, or grants of t h e Nawabs 3

_ _

other brotherB7 and Bucka Sultan, in right o f Habiboon Nissa Begum his wife, to

420

EAST INDIA CO# n SYED ALLY [ 182'71 vn MOORE IND, APP., 661

equal share wi th his skters, which was half the share of the brotlhers, in the whde

of the lands and villages, and that they might be respectively declared entitled - to

like shares o f the rents, issues and profits thereof which had been received by or by

the order of the Kullee Mollah Khan since the death of AsBim Khan, and for that

purp08e the uaual Bccountg might be taken, [561] w i t h short rests for the calculating

of interest, and that the Perwannah, or re-grant of the Jaghire lands and villages

made by the Eraat India. Company to KuZlee Moolah Khan, might be ordered tlo be

delivered up' and cancelled, and that the East India Company might be. decreed to

make and execute a new grant or Perwannah o f the Jaghire lands and villages in

favour of Respondents and the widow and other children of Aasirn Khan, accurdintr

m

to their severd and respective intereah as representatives t o Assirn Khan, according

to the Mahornedan law, wagesl and customs, in Altunighah or perpetually; or in case

the Court should not see cause to. maintain the validity of thel original Perwannah,

then that Kullee Moolah Khan might be decreed, in respect of t.he several fraudulent

~

proceedin(rs e? and concealments, to come1 to a just and particular account of all the

profits. of the Jaghire lands received by himp o r any other person for his use, sinca

the 27th of October, 1801, the day o f the death of Assirn Khan;and that half yearly

and other frequent rests might be made in taking such acc.ount, and that the int.erest

found due might- be, carried forward a8 principal, and tnhatb Kulke Moolah Khan

might aZso be decreed, in respect of such alleged fraudulent proceeldings and conceal-

menta, to have been and then to be a. trwtee o f the Jaghire lands and villages for

the benefit of the, Respondentis, t o the extent of their respective shares i n the same,

according tol the Mahome.dan Law, and that. the East India Company might be

declared t o have been, during all thet ime of the assumption, seised of the lands and

villages and the, rents and revenues thereof, in t rust for Assirn Ehan during his life,

and since his death fo r the Respondents and his family; and that the East India

Company might be decreed t o account before, the Master for all the rents. and revenues

thereof, which during the assumption came. to, their hands, o r which they had received

since the period of the grant t o Kullee Mudah Khan, or which were by them, under

and by tlhat grant, received and retained for their own use Y and in case1 that Kullee

Momolah Khan should be liable t o make good t o the Respondents the severa.1 amounts

which might be found to have come to his hands under and by virtue of the1 grants,

then that the East India Company might be made to make good t o the Respondents

such deficienciea as might wise or have a r b n by reamn of any of their acts in the

premises, and that Kullee &dah Ehan might alao be decreed t o account in future

with the RePlpondents, half-yearly or otherwise, a8 might. be moat convenient, in

respect of their respective shares of t h e ren6s and profits.

[662] The East India Company by their amwer insisted, that the rimht b of pro-

perty of Assirn Khan in the Saghire waB broken into and upon by the act of asaump-

tion by the Government, and that the Jaghire was assumed in their name and behalf,

under and by virtue of the terms and stipulations contained in t.he Treaty made by

them with t.he late Nawab of the Carnatic. And they further stated, that by the

Treaty they had the right and p0we.r to assume and seize, the property o f every' in-

dividual who held the Bame under the Jaghire grants from the- late, Nabob, Wallajaliy

and his son, Orndut ul Omrah, and submitted t.hat the Government had not by any

act, expressly or otherwise, dischimed o r renounced such right with regard tol any

Jaghire lands, held under Perwannah from thoae several Nawaba, whetlher the Bame

were held under Altumghah enams, or any other description of Perwannahs, a.nd

that they were well justified in go doing by & reamn of the nature of such property, L

the game being merely revenue, o r the Government share, in the produce of the villaws e

comprised in the Jaghire granta; and that, according t o the Mahomeda-n. Law, and

according t o the constant usage of the Mahornedan Government, such grant.s were

always resumable at the pleasure of the Government on the death o r change of t h e

reigning Governmentl, on whatever terms the grantm$ were expressed ? unlesa the

same were afterwards confirmed bv th.e succesmr, and that, therefore, the Appellants

on such resumption as aforesaid, only exercised the sam.e power which hamd been

constantly exercised by the former Mahomedan Government8 of the Carnatic. And

they submitted, whether the Bill contained any matter of equity whereon the Supreme

Court could ground any jurisdiction to pronounce a decree, or give the Respon.denta

relief as a-ainst b them, the mathers of the suit , 80 far as they related t o the Appel-

421

~ ~

VI1 EOORE IND+ APP., 863 EAST INDIA CO. SYED ALLY [ 18271

lents, were o f a political nature, and not cognizable by any Municipal Court of

P m k

Justice,

On the 22nd 0.f May; 1820, the Supreme Cburt pronounced a decree, whereby

it was declared and decreed tha t the original Perwannahs, or grants, granted by the

Nawabs, Walhjah and Omdut ul Omrah, to Asaim Khan and his posterity for ever,

of the Jaghire lands and villagee werel valid and subsisting Perwannahs or gra.nt8,

and that the same were, and had been, in force ever since the assumption of the

Carnatic by the Appellants; and the Respdadents were under the Same entitled to

t.heir several and respective shares in the Jaghire lands and villages, according to the

Mahornedan Law; the Respondent, Syed Alley, to an equal [6631 share with the

brothers, and the Respondent, Bucka Sultan in right of hi8 wife, the Respondent.,

and Halnmiboon Nissa Begum t o an eaual share wi th her sisters. And it wag further

declared, that t.he PlainGffs were al& respectively entitkd t o like ahare8 of the rents,

isaues and profits o f such Jagh.ire lands and villages. And it wa8 decreed, that the

Defendant, H u l k Moolah Khan, should account before the M a s k touching the Jag-

c U

hire landa and villages, and the rents and profit@, and revenues, aLd

of all arrears of rents and profits thereof which had accrued during

the time of the assumptionof the GGvernrnent of Fort St. George, or which had bee;

received by Bullee Modah Khan since the death, o f Awirn Khan, and that the Master

should make half-yearly renh, and compute interest and make just allowances. And

-

the Court further declared that Kullee Moolah Khan had been, and then was, a

tJrustee of the Jaghire lands and villagea, and of the rents and profits thereof, far

the benefit of the Respondents to the elxtent of their respective share8 and interest. in

the mme, according to the Mahornedan Law;' and all further directions and costs

were reserved until a.fter the Master should have. made his report.

The Master having made hia report, the cause came. on to be heard on further

directions on the 28th of July ? 1821, when the Court ordered and decreed that the

Defendant, Kullee. Modah Khan, should forthwith pay to the Respondents, Syed

-

Ally, and t-he other children, their shares in the r e n t s and profits of the Jaghire;

and a h thatl Kullee Moolah Khan should pay interest to the respective parties om

the several Bums of money at the rate of six per cent. per annum? from the Z h t day

of February, 1521; and the Court further ordered that, until the same should have

been fully paid and satisfied, the share andpopor t ion onf the Defendant, Kullee

Modah Khan, o f and in the- Jaghire, should be held and be liable to the payment

thereof t.o the several parties rat>eably and in proportion, according to the amount

due t.0 tmhern respectively; and that the partiens were respectively entitled to have and

possess the Jaghire and the rents and Fevenues thereof to themselve8 and their heirs

in perpetnuity, the. sanx to be divided amongst tlhem in the shares and proportion8

authorized by tmhe Mahornedan Law, and thatupon application8 for that purposel the

parties should be entitled to have a partition thereof accordingly, and t o have

~ ~ s s e ~ i o r l of their several and respective shares, subject t o the mbsisting rights and

interests of the t.enants and occupiers thereof.

On the 2Oth, o f January, lSZi, th.e East India Company pre-[564]-sented a peti-

tion to1 the Supreme. Court, and obtained an order f o r leave to appeal to Hirj Majesty

in Council against/ the decrees of the 22nd of May, 1820, and the 28th of JulyJ821,

and aft.erwards lodeed a a petition of appeal against both decrees in the Privy Council

Office.

The Respondents aft.erwards prese:nted a petition, praying that the petition of

~ ~~ ~ ~ ~

appeal from the above decrees, 80 far as it sought t o reveme the original decme

pronounced by t.he Supreme1 Court of Madraa on-the 22nd of May, 1820, might be

dismissed, the appeal not having been brought. within six months, the time limited

by the Madras: Charter.

The petition now came un fur hearing (Feb. 2, lsZs>.

Mrm Home, R.C., Dr. Lushingt-on (Mr. W. Brougham, K.C., and ML Teed, with

t.hem), for the Respondents, the Petitioners.

T'his application is founded upon the provisions of the. Madras Charter, which

provides t.hat no appeal shall be allowed by the. Supreme Court unlesa tnhe petition

fo r that purpoae be. preferred within six months from the day of pronouncing the

judgment o r determination complained of,'and unless the value of the matter in

dispute exceed the ~ u r n of one thousand Pagodas. The first decree, now appealed

422

Then3 there i~ an-utker c k ~ s e in the Charter, giving power to the King in Cauncil

grant an appeal upon such terms, and under auch Iimitatium3 sestrictians, land

regufrttianrz~ 8s he shuuld think fit; but as it hag been urged in argument, there mu&

be a aptxhl application, stating a strong case t o the Board for permitting that in-

dulgence, and accounting f o r the ~ e g l i g t ~ e in not having appealed in aue time,

It i s unnecessary to say what the opinion of the Board would be upon that applica-

thn, because it i s not before them; the anly appeal before them i a one stated MI a

mattor of course, founded upon the pennisaion given the Appellants by the Supreme

Court; - t h e Board are of opinion, that that permission could oaly be given t o than

to the decree upon fur ther directions, and tnhat 80 much of the prayer of the petition

~ ~ -

m-us.t be granted as prays to restrict the appeal t o the last decree.

nothing upan the question of costs at present.

FVe proaaunce

(Feb, 4, 1826*) The East India -&m.pimy, -in confurmity to the suggestions U€

the Buard, presented a special petition praying fur the indulgence of the Baard It-o

permit them t u appeal frum the decree prunounced by the Supreme Court. af Madras

u n the 22nd of MayT 1520; and in auppart of their application- filed an rtEdavit of

Sir Thomag Strange, Kntb,, €urmerly Recurder of the Supreme Cuurt a t Madras, the

material parts of 'which were a# €dbtp.a :-- '' That he wa8 appointed the first Chief

Justice of the Supreme Court at Madras in 18Cll, and exercised that office €mm that

t ime until the year 1816, when he resigned 3 that during the time whilst he 80 held

t.hat ofice, [567] an established practioe exiated (founded on a prevailing under-

standing o f the intention and construction of the Letters Patent c rea t iw t3 the Court)

of granting leave t o appeal to His Majesty in Council from judgments or determina-

tions tsf the Court only on the ultimate conlcXusisn of a suit, when the whale auit and

everything regarding it, Have only execution, had attained maturity, and when3 the

party dissatisf ied might have the benefit o f such right of appeal to the elztent of

every part of the proceedings on which error might be aseignabW

NL Serjeant Bosanquet7 and Mr. Serjeant Spankie, fur the East India Cumpany.

in the regular time and manner as provided fur by the Madras Charter; althuugh

we were wrung in the cunstruction uf that Charter, &ill we were mialed by an emur

founded on the prevailing practice of the Supreme Court of Madras, The affidavit

o€ Sir Thomas Strange shows tnhat no appeal could have been interposed during the

progress o f the cause; we were b wverneddkby the practice of the Supreme Court;, which

Beemi$ to have been. settled by a decision pronounced by that Court in the caae of

Johnlstom v* The Emt India C o m p w (1 Strange's Madras Cases, 21), In that case

7'

we are now in a state t u accaunt satisfactudy f u r n u t cuming before your Lordships

a petition was presented for leave to appeal againat an interlocutory order, which

waa refused, the Court being of opinion, upan the construction of the Madras

Chaster, that there could be no appeal while the auit was in progress, and declaring

tha t the auii; mu& have reached i t s end, and then, and nut before, the party agirieved

might object t o m y arder by which he could &ow that he had been finally ag.grieved+

Thk ,has been the basis of the practim from, that time to the present, and acting rppon

this authority and- con~kruction, of the Charter, the East India Cumpsny did nut

m

mesent their petition of appeal till the decree un further dire@tions wag pranounced.

cantendhg that nu general rule of $kwtks in the 5kkreme Caurt at Madrag could

overrule the express words of the Charter, by which they inaisted, the Appellants

wera absolutely precluded from their. right to appeal from the original decree pra-

nounced bv the Supreme Court on tihe 20th a9 May3 1820.

Y

[56E(] $he Ma& of the ROUS (Lord Gifford)+-This is an application to the in-

dulgence of tIhe Board by the P'etitiarzers, the East India company, who pray that

t.hey may be permitted to appeal againat a decree made by the Supreme Court of

Madras in 18-20 ; and, considering the power and weight o€ this CompanyJ the Board

will look very narrowly into any indulgence they ask. It appears that t w e l ~ s m.onths

agu an appeal having been lodged, EM a matter of cuurm, by them, not only wainst rn

the decree .upon further directions, but the original decree, an. applkatiun w m made

by the Reapondents that th& appeal, 80 far as it regarded the original deoree, shauld,

be dismiawed, ~ X U W I W G ~ as the Appellants h ~ d not prmented it in due time, It

appears that a suit was imtituted by the Respondents BU lung &go .' as tha year '6820,

againat; the Companhy and &her parties; and une great questian respected tbhO

424

A, decree w a s prorso-unced in the p ~ t r 1.820 by the Supreme Court of Madme, and, a~

I undemtxmd. the decree, i t .did declasativdy pranuunce un the validity of that grant,

and thereby pranouncsd i t 8 final decieion upun that questiun in which tho East

India Company W B F ~ interested# Having made the dedaration which that decree

cQnLEtim9 respecting the validity of the grant, the Court went on t o direct certain

accounts t o bo rendered by other parties in the. cause3 and, thme account;s having

.._..

been taken, the cauBe came on upon the Mmtor’a report. An order, upon furthei

directions, wag made upon that report, but the East India Company were only affected

by the original decree grollounuunced in 1820, because the u t b r proceedings d a t e d t u

the accuuat between other parties, and did not affect them; they had permission tbo

appeal, nu% only again& the decree upun further directiona, bur; from the origirial

decree. The Board were of opinion that, hoking at the terms ~f the Charter, in

which it i s provided “that nu appeal sha31 be allowed by the Court unless the peti-

t ion for that purpose ahdl be prdkrrtd within S ~ X ma nth from the day of pronuuxlc-

ing the judgment or detmminatiaa complained of, and umz’less the value sE the matter

In diqwte &ala exceed the sum of one thsusaad Paguda~~” that the jadgment and

dehmnin.atian comphhed of, w m the decree ariginafly pronounax! upun the bear-

ing of the C&UBQ~ the decree pransunoing declaratively upon t h e great questiun

existing in the cause between the Ea& India Company and the Respondents; [569]

and they* were of opinion that tho Ea& India Company were out of time, so far a8

regarded that d~csee , but that they were still in t i m e to appeal awainst 43 the decree

upon further directions, The AppeIZarsts have now presented a very long petition

to the Board, praying fui- the indulgence uf the Baasd t u admit. them to appeal, upon

the ground that a certain errur has sxistsid in the proceedings sf the Supreme Court

of Madras sixme the granting o f i € s Cltaarker in 1800, up t u the present p r i u d ; and

they have praduced an &davit oF ti% mo& eminent Judge of that Court, holding the

highwt judicial. situation for a great number of yeam? who deposes “ t h a t during

the whole time whilst he so held and exercised the said oflice, an establi&ed. practice

exllsted (founded upon a prevailing understanding of the intentkm and csfaatructiorn

of the mid Letters Patent), of granting leave to appeal t u H ~ B Majesty i a 4 h m d

€rum judgments or determinations of the said Court uf Judicature only un the ulti-

mate concfu~ion of a suit, when the whale s u i t and everything regarding it, save only

esacutioa, had attained maturity> and when the party dissatisfied migh:t have the

benefit of such right of appeal t o the extent of every part of the proceeding, un which

error might he assignable.” He atatea t h a t t o have been the practice; and a cas0

has a3ao been produced before u8, determined 80 long qp aB the year 1799, befora tha

L

granting of this Charter, thuugh the words sf the Charter that then exigted appear

$0 be very similar t u those in the present Charter; and upun that uce;asion tfze Re-

corder determined that it w a ~ not competent to the part$ t u appeal against an, ixzt1er-

Iocutiury t judgment, but that he mu& wai t till the final judgment of the cause to

appeal, It appear8 that the Court at M.ad~as~ hag camidwed that to be the praotice

by d u w i n g the appeal in this particular o ~ e ~ becaufire no doubt seems to have beon

felt when the Appellants applied €or leaxe $0 appeal. Now, under t h e ~ e circum-

stances, the questiun is, whether thie WTQP, which hsta prevailed up tu the period

the .Appellants the indu&ymx3 .they now a&.

It ha8 besn urged before ua-that this cam ought t o be determined, not 8 8 i f a

powerfuI body 1 ik~’ the East India Company were the partiee, but like the cam of an

humble individual; and we think the Board would perhaps look with still greater

jealousy to a ca8e in which a Company 80 powerful as the East India Company were

conmrned, We think, however, tm an errur haa exi8ted in the mind of the Supreme

Court ? ’ it would be tsc, much to shut out the party from the right uf appeal I we3 there-

when this appeal wag presented, i g s-uch an. error as shall induce the Baard eo gran% 4

425

VI1 MOURE IND+ APE, 671 EAST INDIA CO. V* SYED

upon the appeal then laying before the Board, and

orders, nor any application made for the indulgence

ALLY [I8271

no notice was taken of t.hose

they ask; under these circum-

-

stances, i t is impossible to grant this indulgence, bu t u.pon the terms of their paying

not only the costs of this application, b u t any coats that may have been incurred

since February, 1825, and which may in the event have been incurred unnecessarily.

I mean as to the printing of their cases in the .present form, which, I dare say, are

directed only to the decree upon further directions, and, therefore, further. expense

must be incurred in preparing additional casea applicable to this point, which ap-

pears of the greatest importance in the case, namely, the validity of the Jaghire.

I suppose t4here can be no question as to tIhe phart of t lhe co8t.s they ought to pay; the

parties ought to be fully indemnified for all the cost8 that have been incurred in con-

sequence of the delay that has taken place, and the costs of t h k application.

The appeal from both decree8 being admitted, Appellants, in their clase submitted

that the same ought t o be reversed, and relied upon for the following reamns :-

First.,---That the assumption of the Government of the Carnatic in 1801, was

entirely a political meamre, carried into effect by the Governor in Cnouncil of

Madras, for enforcing Treatiea made with the Nawaba $18 reigning Sovereigns, by

the Appellants, in exercise of the powera of Government delegated to them by Royal

Charters and Acts of Legislature; and that the dispossession of Assim Khan, and the

other Jaghiredara and grantees of the public revenues of tbhe Carnatic, formed part

of such assumption; and they submitted that Assirn Khan, under whom the Respon-

dents claimed, never was possessed of t:he Jaghire after tnhe assumption of the Car-

natic by the Governor in Council of Madras; that tlhe acta of resuming the Jaghires

of the Carnatic, and of re-granting to Kullee Moolah Khan the Jaghire in question,

being political acts, had been sanctioned and confirmed by the department of the

British Government expressly appointed by the Legislature for the superintendence

and control of all political acts of the Governors in Council of [671] the Appellants

in India-namely, the Commissioners for the affairs of India, That by the 53rd

Gea. III., c+ 155, the Britialn. Legislature vested in t.he East India Company all the

territorial acquisition# then under their Government, with the revenues thereof', for

a term then unexpired, and thereby confirmed the acquisition and occupation by the

East India Company of the Carnatic, and the disposition of the Jaghires of that

country made by the Appellants; and thBt the acts o f resumption and regrant of

the Jaghire not'being tranaactions of the Appellanta in their ch;aracter of a corn-

rnercial Company, bu t being such political acts as aforesaid, carried into effect by

the authorities legally constituted in that behalf and sanctioned aa aforesaid, were

mattera wholly foreign to the j uriadiction of a Municipal Court, erected for deciding

cause8 between subjects of the British Crown, in cmes of ordinary right wit.hin itis

j uriadiction,

Second,-That without examining how far t.he extensive powers vested in the

Appellants, by the.ir Charters from Charles II., William III., and Queen. Anne, and

recognized by various Acts of Parliaments, were virtually abridged and modified by -

the enactments of the Statute, 13th Geo. III., c, 63, which Statute commenced a

system of -Parliamentary regulation of the Government of India, or by the Act of

24th Geo, III., c, 25, and subsequent Acts constituting the Board of Commissioners

for the affairs of India, it was beyond question that the power of concluding Treaties

with Native Princes on behalf o f the Appellants wag vested in the Governor in Coun-

cil of Madras, with the approbation of the Governor-General of India, in the year

18017 when the Governor in Council, witnh the sanction of t h e Governor-General at

Fort William in Rengal, concluded the Treaty with the Nawab3 ceding the Carnatic

to the Appellanta. That the Treaty of 180'1, transferred t.0 the Appellants, without

~~ m -

any exception whatever, the sole and exclusive administration of the Government of

the Carnatic, together with the full exclusive right to the revenue8 thereof, subject

to a provision of one-fifth'for the maintenance of the Nawabs; the Appellants by

Article 9 3 engaging t u take into consideration the situation of the families of t.he late

Nawab, and of the principal officers of the Government, and to provide them a suit-

able maintenance; a rrtipulaticm which w o d d have been nugatory if the Jaghires had

been considered as private property, cm had been intended to be secured to the

EAST INDIA CO. -SYED ALLY [l827] VII MOORE I N D ~ AFP., 672

featly appear from a comparison between the [672] language of that Treaty9 and

that of former Treat ies between the Nawab and the Appellants. That, in the Treaty

of 1787, forming the basis of arrangements for the joint defence o f the Carnatic,

between the Appellants and the Nawab in the event of war, the 9th Article stipulated

tmhat the Nawab should pay four-fift,hs of hia revenue to t.he Appellants, which four-

fifths were to be taken af ter deducting froin his whole revenue 2,13,431 pagodas

annually, for Jaghires t.0 the family of Hi8 Highness, and 21,366 pagodas annually

for charities; a deduction evincing that. the Jaghires t7 oranted to t:he family were still

conaidered part of the public revenue, and would have entered into the amount

thereof, had they not been. expressly excepted. And that the nest Treaty of 179Z9

between tnhe Nawab and the Appellant~j ixlatead of providing a war subsidv from t h e

Nawab, provided that in the event of war, the Appellants should e.nter intoPull autnbo-

ri ty over the Carnatic, h.? and collect the revenues during t-he war, exceptl t.he Jaghires

of the Nawab’s family of the amount of 2,13,911 pagodas, which on the condition of

the good behaviour of the Jaghiredars, and of t.heir fidelky t.o the Xawab, should be

continued t o them, aubject to the pleasure of the Nawabs. And the Appellants sub-

mitted, tlhat the last-mentioned Treaty being made three years mbsequently t o the

Nawab Wallajah’s grant t o Aasirn Khan, clearly manifested not only tha t without

the exception, Jaghires of all kinds (including even those of the Nawab’s family)

would have been aubject t o the occupation of the Appellants in the event o f war;

but also, by the limited terms of the exception, it must be inferred that the treatring

-

powers never intended to except or protect t.he Jaghire of Assim Khan, or any other

Jaghiredars, except the members o f the reigninm ?3 family. And it wa8 further sub-

mitted by the Appellants as manifest, that the cession. made by tlhe Treaty of 1801,

- _.

contained no exception (while tlhe former Treaties contained such exceptions as

aforesaid) and was unlimited and unqualified, that the Jaghires of the Carnatic were

intended to pass wi th the general revenues t o the Appellants, while the family and

the Jaghiredam, and officers of the Nawab, were to look for provisions t o the ,4ppel- - U +

Iant’s engagement under the 9th article of the Treaty. -

Third,--That the Supreme Court at M.adrals, in making. the! decrees, excee.ded i t s

jur idict ion, as the same was prescribed and defined by the Acts of 37th Geo. IIL9

-

C, 142, and 39th and 40th Geo. III., c, 79, and by the Letters Platent constituting the

Court. That the 37th of Geo. IIL3 c. 142, sec. ii., recited in the 39t.h and 40th

Geo. III., c , 79, and Letters Patent, expressly provided [573] that the Recorder’s

~ ~

Court of Madras ‘‘ shall not have or exercise any jurisdiction in any niatter concern-

ing the revenue under the management of tnhe Governor in Council respectively,

either within or beyond the limits of the said town of Madras, orithe fort.8 or f’act0rie.s

subordinate thereto., or concerning any act done of the Governor o r Cbuncil.” That

by the Act, 39th and 60th Geo, III,, c. 97, mc, 2, His Majesty waB empowered to enrect

the present Supreme Court at Madras, to conaiat of such pemonBy and trio bel invested

with such power and authorities, privileges and immunities, for t.he better adrnini-

atration onf the same, and subject to the same limitations, restrictions and control

within Fort St. George, the town of Madra8, and factories subordinate thereto,

and within the territ6rie.s which now are, or hereafter may’ be, subject to. > or de-

pendent on, the Government o f Madras, as the Supreme Court of Judicature at

Fort William in Bengal, by virtue of any law now in force and unrepealed, or by

t!hat Act did conaist of, is invested with, or subject to, within Fort William, o r the

kingdoms or provinces of Bewal, t7 Bahar, and Oriaaa. That tnhe. Act, of the 21st

Geo. III., c , 70, which was passed For t.he purpose OF aniendinu a and explaining the

13t.h Gm-. III., c, 63, under’thei autlhority of wlzicl- t.he Supreme Court% at Fort- William

waH erected, and for regulating tlhe jurisdiction o f that Court , contained a. clause

and the Lettera Patent of the 26th December (41s t G e a III.), establishincr. the

Supreme Court a t Madraa, contained a clause precisely in the mme words the

last-memntmioned clause of the 37th Geo, III., c , 142, regulating the jurisdiction of

the Recorder’s Court. That neit-her Assim Khan, nor Kullee Moolah Khan, either

under the Government of the Nawab, or of the Appellants, was ever possessed of or

(sec+ 8 ) similar t o tlhe abovementioned clause o f thel 37th Geo. IfI., C, 142 ? sec. 11 9

b

entitled t o any land whatever bv d virtue of the Jaghire in question. That the Jaghire

Y

consisted of the Government share of the produce of the Jaghire landa, and come-

quently passed t o the Appellant8 aa part. of %he public revenue8 of the Carnatic, and

427

became public

APP., 674 EAST INDIA CO. zf* SYED ALLY E18271

revenue of the Appdant’s Government3 under the management of

the Governor in Council o f Madras. That the Appellant’B grant t o Kullee Moolah

Khan. wasl a grant o f a part- of such public revenue8 to him as1 Jaghiredar, and the Jag-

hire remained public revenue in the handa of the grantee, and exempt from all taxes

and charges tu the St-ate, in the Barne manner aa Then the revenue w m in the hands

of the GGernment itself. That the Appellant8 upon the regrant to Kullee Moolah

Khan reserved [574] to themselves their present interest in part of the revenue8

which had not been excepted in the grants to Assim Khan: namely, the Sayer, salt

and saltpetre. That the Appellants-by the terms of such regrant, gave t o Kullee

Moolah Khan an. inkere& inl the Jaghire of an ordinary Jaghiredar only, withoutl

any term of perpetuity, and were, therefore, entitled to the terms of such regrant

(whatever might be the construction of the Perwannahs of the Nawabs), to resume.

such Jaghire as part of the public revenues under all the circumatances in which an

ordinary Jaghire i g rewrnable, That the Appellants, therefore, submitted, that the

decree8 had beea. made upon matters concerning the revenues under the management

of the Governor in Council at Fort St-. George, which were expressly excluded from

the jurisdiction o f that Court, and that the Court had no authority to decree that

the Perwannahs of the Nawaba were valid and subsisting after the assumption of

the Carnatic, o r to decree a partition of the Jaghire, o r to appoint a receiver of the

rents o r profits thereof That if the Appellants’ Government had altogether ref used

to renew the grant of the NEtwa13[3, either ton Aasim Khanp or t o Kdlee Moolah Khan,

after his death, it could hardly have been contended that thO Appellants would be

compellable 80 tu do by a s u i t in the Supreme Court; and yet the decrees proceeded

upon the principle of establishing the Perwannah o f the Nawabs as perpetual grants,

and of invalidating the limitend regrant of the Appellants. That if the authority

of the Supreme Court to rnake these decrees could be maintained, it might by parity

of reasoning be contended, that the whole settlement, of the Carnatic, after its

assumption by the British Government, might be reviaed by t.he Supreme Court,

and that s u i t s might be enbrtained upon the complaint8 of all the former subjects,

or the representatives of former subjects, of the Nawah, who might be diaaatkfied

with the arrangements then made, tmhough sanctioned by the executive and coatrol-

ling authorities appoint.ed by the Legidature. That the field of litigation which

would thus be opened upon every accession of territory to the several Presidencies

in India, might easily be imagined, but from entering upon which, the Appellants,

submitted that the Supreme Courts at those Presidenciea were equally excluded by

principle and the provisions of the Legidature.

Fourth,-Thatl i f the Supreme Cour t at- Madras wag authorized trio take cog-

nizance of the subject-matter in dispute relating to. the Jaghire, the caw did not

justify the decrees which had been made, [675] by which effect and validity have

been given to the Perwannahp, of the Nawah, a8 granta in perpetuity, notwithstand-

Ink r the tran8fe.r of the; Carnaticl tol the Appellants., and their reisumption of the

Jaghire. mat notwithstmanding the language of the Perwannahs expressive of per-

petuity, such grants according to their general acceptation in India, the known and

constant usage and practice o f the Carnatic and other Indian States, and a h from

the nature of the subject-matter granted, were resumable upon a change of mve-

reignty, and could be deemed perpetual. That although the language of tmhe grants

might seem to convey a proprietary interestin the mil, yet the grantees confessedly

possessed no auch interest, the subjectrmattmer of the grant being a mere Jaghire, or

- -

portion of public land revenue, together with the Government powers of collecting

the same, and .that as Assim Khan never entered into possession of anything beyond

such Governm>ent portion of reveiiue, the Ryots or land owners remained in posses-

aion a8 before, That the granta, therefore, being of the nature above mentioned,

must Y according to the character and usage of the Indian Governments, be deter-

minable, if not at pleasure, a t leaat upon the death of the granting Sovereign, or the

change of dynasty.

-

That such grants being in Enam, namely, gratuitous, and not

subject to any payment or other render to the State, being the ordinary mode of

conferring stipends OR the officers and dependants o f the native Princes 3 + from their

-

nature could not extend bevond d t-he life of the granting Prince without often leaving

his sUccessor deprived of the revenues necessary f o r the purpose8 oIf Government,

and without often leaving individuals hostile t-o the existing Government in posses-

428

EAST INDIA CO. V* SYED ALLY il82!7] VII MOORE INDm APP., 676

sion. of the large portions of i t a r evenum Thatm when the executive and legislative

powers were united in the Sovereign Prince, as they always were in IndFap there

were no means by which the State could be protected from eut.ravagant grants by

the reigning Sovereign, and the resumption of such grantns by the succemor, and

the resumable nature of the grants in quwtlion further appeared From the actual re- * *

grant upon the death of Wdlajah, the fmt granting Nawab, to Assim Khan, by

Omdut u1 Omrah, the succeeding Sovereign.

W U

Fifth,----That the laws and wages of Mahomedan State8 respecting grants of

Jaghires, the nature of Alhmghah grants, the precise estate and interest conveyed

by such grants, and the powers of resurnpt:ion or revocation belonging to thel Sove-

reign grantors, were matters respecting which there was no sufficient evidence on

which the Court below could make the. decrees appealed against, and tha t [576] the

Court -

.-

ought to have directed issues, in order to ascertain tnhe fa.cts, and emeciallv d . - . . 1 #

the laws and usagea of the C'arnatic, and uught not to have decided a auestion of such

1 U

-

magnitude and of $0 much novelty and perplexity without granting such issues.

That certain questions relatiw to the Mahornedan law propounded to persons in

Bengal, with the anawers of auch peraons thereto, which had been annexed to the

43

- -

proceedings transmitted by the Supreme Court, formed in the s u i t appealed from, nor were such questions propounded by any party in ~

r * w *

-

ellants to discuss, by argw that s u i t , nor was any opportunity afforded to. the App

mmt, the effect of the answer8 thereto ; conseauentlv.

no part o f tnhe proceedings

that nothing contained in

d = #

those amwers ought in any degree to, have influenced the judgment of the C'ourt, in

pronouncing the decreea, nor ought the same to affect

ia w or appeal.

the judgment of thel Court

r U

First,-Because the Supreme Court of Judicature at Madras was a Court of

competent jurisdiction to decide tihe matters in dispute [577] between all the parties

t o the cause touching their rights t o the Jaghire in question.

Second,--Because the grant made by the Nawabs, V'Vallajah and Omdut ul

Omrah, to Gsaim Khan, were satisfactorily proved by the evidence, to be grantns in

Altumghah enarn; and itl wa8 established that, according to the law and usage of

the Carnatic, such grants conveyed to the grantee an indefeasible interest in per-

petuity in the subject of the grant, and that upon his death, it became devisable

amongst the members of his family, in the shares and proportions declared by t.he

decree of the 22nd of May, 1820.

Bos

Dr.

It was argwd upon this point that it was a question upon tlhe construction of

429