The Secretary of State in Council of India v. Kamachee Boye Sahaba (India)

V X X XOOXE XND. APP., 476 SECRETARY OF STATE IN COUNCIL OF INDIA

further advise Eer Majesty that the Respondtsnt should be condemned i n all the costs

incurred in this litigation.

[For subsequent p r o c ~ i n g s ee 10 Xw. Ind. App. 41.3

[476] THE SECRETARY OF STATE IN COUNCIL O F IND1CA,-Ap~lellant~

~ A M A C H ~ E BOYE ~ A H A B A , - ~ e ~ ~ ~ e n ~ * [July 1, 4, 9, 18591.

OIL a~~~~ f~~~~ the ~ ~ ~ ~ r ~ ~ e COW^ at iWadras.

Transactions of Independent Sovereign Statas between ea& other, are governed

by other laws than those which Municipal Courts administer. Such Courts

h a w neither the means of decreeing what is right, or the power of enforcing

any decision which they may make.

The Rajah of Tanjore, a native independent Sovereign, but in virtue of Treaties

under the p r o t ~ t ~ o n f the East India ~ m p a n y , died ~ t h o u t leaving issue

male, when the East* India ~ o ~ p a n y , in the exercise of their Sovereign power,

and in trust for the British ~ o v e r n ~ e n t , seized the Raj of Tanjore, and the

whole of the property of the deceased Rajah, as an escheat, on the ground that

the dignity of the Raj was extirict for want of a male heir, and that the pro-

perty of the late Rajah lapsed to the British Government. Held, that as the

seizure was made by the British Government, acting as a Sovereign power,

through its delegate, the East India Company, it was an act of State, to

inquire into the propriety of which a X u n ~ c i ~ a ~ Court had no jurisdiction.

~ ~ ~ ~ ~ e . - T l i e r e i s a distinction between the public and private property of a

Hindoo Soyereign, as upon his death his private property g m to one set of

heirs, and the Raj and the public property to the succeeding Rajah.

The general rule of the Hindoo law of ~ n h e r ~ t a ~ ~ c e is p a r t i b ~ ~ ~ t y . The successio~~

of 8 single heir, as in the case of a Raj, is the exception.

An act3 done by an agent of the Gov~rnment, though in excess of his authority,

being ratified and adopted by the Government, held to be equivalent to

previous authority.

Ameer Sing, a former Rajah of Tanjore, was in the year 1787, the absolute

Sovereign of the fort and country of Tanjore, in the Presidency of Madras. I n that

and s u ~ s e c ~ u ~ n t years three Trea-[477]-ties were entered into between the Rajahs of

'Sanjore and the East India Company. The first af these Treaties was dated the 10th

of April, 1787, and made between Sir A r c ~ ~ ~ a ~ d C ~ p b e l ~ , then Governor of

Madras, and Ameer Sing; but as this Treaty was annulled by the Treaty next

~ ~ n t ~ o n e d , it is unnecessar~ to state its p r ~ ~ i s i o n s . The second Treaty, dated the

11th of June, 1793, was made between Sir Charlw Oakley, Bart., then Governor of

Madras, and Ameer Sing, which annulIed the former Treaty, and the ~ ~ p u l a t ~ o n s f

which, so far as material here to be stated, were as follows:--" Art. 1. The friends

and enemies of either of the contracting parties shall be considered the friends and

enemies of both. Art. 2. I n order to execute the fore~oing Article in its full extent,

the East India Company agrees to maintain a niilitary force; and the Rajah of

Tanjore agrees to cont r ibu t~ annually a certain sum of money hereina~ter mentioned

as his share of the expense of the said military force; the said Rajah further

agreeing that the disposal of the aaid sum, together with the arrangement and

employment of the troops supported by it, shall be le fb entirely to the said Company.

Art;. 3. It i s hereby also agreed, that for the further security and defence of the

countries b ~ I o n ~ i n ~ and subject to the contracting parties in the ~ a r ~ a t ~ e ~ e c., that

all forts shall be garrisoned by the troops of the said Company. Art. 8. In case the

* Present: Members of the Judicial Committee,-T~~e Right Hon, Lord Kings-

down, the Right Hon. Dr. Lustrington, the Right Hon. Sir Edward Ryan, and the

Right Hon. Sir John Taylor Cfoleridge. Assessor,-The Right Hon. Sir Lawrence

Peel.

- ~ - - ~ _- -- I l__-_"--_"l- --l_l ---I

388

said Rajah shall a t any time have occasion for any number of troops for the collection

of his revenues, the support of his authority, or the good order and government of

liis country, the said Company agree to furnish a sufficient number of troops for

that purpose, on public representation being made by the said Rajah to the

President in [478] Council of Fort St. George, of the necessity for eniploying such

troops, and of the objects to be obtained thereby. Art. 9. The said Rajah shall

receive regular information of all negotiations which shall relate to declaring war

or making peace, %herein the said Company may engage, and the interests of the

Carnatic and its dependencies niay be concerned; and the said Rajah shall be

considered as an ally of the said Company in all Treaties which shall in any respect

affect the Carnatic and countries depending thereon, or belonging to either of the

contracting parties contiguous thereto; and the said Rajah agrees that he will not

enter into any negotiations or political correspondence with any European or native

power without the consent of the said Company.”

The third Treaty was dated the 25th October, 1799, and was made between

Sevajee, the then Rajah of Tanjore, and Benjamin Tovin, Esq., Resident a t Tanjore,

acting under powers from the Governor-General, the material provisions of which

were as follows:-Art. 2. After reciting that it had become indispensably

necessary to establish a regular and permanent system for the better administration

of the revenue of the country of Tanjore, stipulates ‘‘ that all former provisions for

securing a partial or temporary interference on the part of the Honourable Company

in the government or in the administration of the revenues of the country of Tanjore

shall be entirely annulled; and that, in lieu thereof, a permanent system for the

collection of the revenue, and for the administration of justice, shall be established

in the manner hereafter described.” Art. 3. The Honourable Company shall be a t

liberty, as soon as possible, to ascertain, determine, and establish rights of property,

and [479] to fix a reasonable assessment upon the several Soubahs, Pergunnahs, and

villages of the country of Tanjore, and to secure a fixed and permanent revenue.

Art. 4. A Court, or Courts, shall be established for the due administration of civil

and criminal justice, under the sole authority of the English East India Company.

The said Courts shall be composed of officers to be appointed by the Governor in

Council of Fort St. George for the time being, and shall in no instance whatever be

subjected to the control, authority, or interference of the said Rajah; but shall be

conducted according to such Ordinances and Regulations (framed with due regard

to the existing laws and usages of the country) as shall, from time to time, be

enacted and published by the said Governor in Council. Art. 9. It is stipulated

and agreed that the Rajah shall be treated on all occasions in his own territories, as

well as in those of the Company, with all the attention, respect, and honour which

is due to a friend and ally of the British nation. Art. 10. Whereas his Excellency,

the Rajah, has had occasion to complain of inconvenience to his Excellency and his

servants, from the present mode of garrisoning his Excellency’s hereditary fort of

Tanjore by a part of the Honourable Company’s troops, it is stipulated and agreed,

with a view to the accommodation and satisfaction of his Excellency, that the said

fort of Tanjore shall be evacuated by the Company’s troops entirely, and that his

Excellency shall be a t full liberty to garrison the said fort in such manner as to

him shall seem fit. Art. 12. In complaints brought before any of the Courts of

justice in which it shall appear, either by the application of the Rajah or the repre-

sentation of the Defendant, a t or before the time of giving in his [480] or her

answer, o r by the petition of the Complainant, that both parties are relations, or

servants, or dependants of his Excellency, or inhabitants usually resident within

the fort of Tanjore, i t is stipulated and agreed that such parties shall, in the first

instance, be referred for j’ustice to the Rajah, or to any person he may appoint to

dispense it. Any complaint against the Rajah‘s relations, immediate servants, or

others, residing in the fort of Tanjore, by persons of a different description, shall,

in the first instance, be made to the Company’s representative at Tanjore, who shall

prefer i t to his Excellency. By other articles of this Treaty, provision was made for

the collection of the revenue by the Governor in Council, and for the payment of one-

fifth part of the same to the Rajah.

Subject to the obligations to the British Government imposed by these Treaties,

the reigning Rajah of Tanjore remained Sovereign of the country, and within the

389

VI1 IyfOOaE IND. APP., 481 SECRE~ARY OF STATE W COUNCIL Ofi' INDIA

fort of Tanjore his power continued absolute, extending to the power of life

and death.

On the 29th of October, 1355, Sevajee died at the fort of Tanjore, without leaving

iuale issue, or son by adoption, or any brother hiin surviving. Upon the fact of his

death being communicated to the Court of Directors of the East India Company,

they by a despatch to the ~ v e r n i n e n t of India, dated the 16th of April, 1856, in

concurrence with the opinion of such Government, and o f the Government of Madras,

declared the dignity. of Rajah of Tanjore to be extinct; and dec'lared the Rajah of

Tanjore lapsed to the British G o v e r ~ ~ m e n ~

In consequence of the lapse of the Raj, quest io~~s with rwpect to the ~ a ~ n t e n a n c e

of the late ~ a j a ~ s [4$1] family, and other matters, came before the Government of

Hadras for their decision; and on the 10th of July, 1856, the Chief Secretary to

that Gove~ii~nent addressed a letter from their pditica1 department to the Govern-

ment of India, of which the f ~ ~ l o w i n g is an extract,:---" Par. 5. On the demise of the

Rajah the Government directed the Resident to continue, until further orders, the

~ ~ ~ e n t of all c u s ~ o ~ n a r y pensions, allowances, or wages, to the family, dependants,

or servants of the late prince; but that the recipients were clearly to understand

that these d ~ s b u r s e ~ ~ e n t s had been au~~hor i~ed only tempora~,ily and until the decis~on

of the ~ o n o u r a b ~ e Court upon the whole question was received. Par. 6. The investi-

gation of the ~iunierous claims to p r o v ~ s ~ o n of sonxe kind that will be advanced by

the parties referred to in the preceding paragraphs, will of itself be no light task.

There are, however, several other important subjects for inquiry, in connection with

the late Rajah, besides these claims. Par. 7. First, there are some very valuable

Chuttrums, of Choultries, endowed with lands yielding a n annual revenue of about

a lac and Rs. 2~,000. There are large balances o u ~ t a n d i n g against the holders of

these lands, who, aware of the Rajah's objections to seek the aid of the Co~pany ' s

Courts to enforce his just rights, have wi~fully withheld their rent-s. I n some cmes

the lands have been misappropriated or f ~ a u d u I e n t 1 ~ alienated, and there are

nu~nerous idlers and hangers-on of the palace, servants who hold nseless oEces in

these i~kstitutions. These Chouitry e s ~ a ~ l i s l ~ ~ e ~ ~ t s should be r e ~ o d e ~ l e d and freed

from all abuses, and the property b e ~ o ~ ~ ~ n ~ to them devoted for the purposes for

which i t was originally granted. Par. 8. [4aJ' Seco~id l~ , claims on the par t of

Pagodas to ~ a y n ~ e i i t s of alluwances have to be inve~t~gated, and some scheme laid

down in respect to the ~ont i~ iuance of these endow men^, in some cases, either by

money grants, o r by assigiinient of lands. Par. 9, Thirdly, there are some valuable

villages belonging to the Raj in different parts of the Province, some retained by

Sevajee when the country was assumed by the British Governn~ent~ and some

subseque~~tly acquired by purchase. These should be examined, and any claims to

os liens upon tlteni considered. Par. 10, Four t~ ly , some debts due by the late

Rajah to private parties, or cIaims on behalf of ~ e n i b e r s of the family, still remain

to be settled. Par. 11. Fifthly, a r r a n g e ~ ~ e n t s must be made for the abolition of the

Eajah's Courts, and for the disposal of suits already on the fde, as well as for the

establ ish~~ent of a Compan~'s C o w t (probably that of a District ~ o o n s i ~ ) in the fort

of Tanjore, which will henceforth be under the jurisdiction Gf the civil and criminal

Courts of the ~ i I ~ a ~ ~ . Par. 12. Sixthly, there are in the palace state jewels of p e a &

value, a valuable library of Oriental works, and a n armoury, which have fallen in to

~ o ~ e r i ~ ~ ~ ~ ~ ~ t with the Raj. Par. 13. It appears to this Government, that the several

matters abose recited cannot be duly inquired into except by an Officer specially

deputed for the purpose. The present acting Collector has been but lately ap-

pointed; he is new to the District, has had no experience in the intrigues of a

N a h ~ a t t a Court, and even were h i s a ~ q u a ~ n t a r ~ c e with them greater, the onerous

duties devolving on him as Collector and ~ a ~ i s t r a t e of one of the heayiest Districts

under this ~ ~ e s i d e n c y , mould leave him no leisure for such a task. Par. 14. Under

these considerations, I am directed to suggest, that [4f333 some officer s h o u l ~ be

specially sent as C o m ~ ~ s s i o n e r to Taxijore, should be placed in charge of the Resi-

dency, and be directed to i n v c s t i ~ ~ t e and report upon the various importan&

question^ above e ~ ~ u i ~ e r a t e d , and any others that may hereafter occur to this

~ o v e r n ~ e n t as demanding inquiry in connection with the general subject. Par.

15. If this be approved, the Govern~ent propose to select for the duty, as the officer

best qualified for it, Nr. H. Forbes, at present acting as third ember of the Board

390

‘U. K A ~ ~ A ~ H E E BOUE SAHABA [1859] VI1 NIOORE IND. APP., 484

of Revenue, who has for several years been Resident at Tanjore, as well as Collector

and Magistrate of the district, and who pmsesses an intimate acquaintance with

the affairs of the Durbar.”

I n reply to this letter, the Secretary to the Government of India addressed to a

letter to the Chief Secretary to the Govern~ent of Madras, dated the 8th of Septem-

ber, 1856, of which the following is an extract :-“ Pa?. 3. I n your previous letter,

dated the 10th of July last, the Government of Madras have sufficiently shown that

the subjects which call for investigation and settlement are so numerous and im-

portant, as to require to be dealt with by an officer appointed for that special pur-

pose. The selection of Mr. H. Forbes, late the Resident at Tanjore, for this duty,

is a very proper one, and is accordingly sanctioned by his Lordships in Council.

Par. 4. Of the various questions requiring consideration, those connected with the

Choultries, and lands on which balances of revenue are due, the claims for Pagodas,

the rights over villages retained by the Rajah when the a d ~ i n i s t r a t i o n of the eountrv

was assumed by the British Government, and the abolition of the Rajah’s Courts,

the Governor-General in Council leaves for disposal [484] by the Government of

Madras. Par. 5. But the mode in which it may be proposed to deal with the Rajah‘s

debts, and with the state jewels, library, and armoury, should be reported to the

(~ve rnmen t of India before any nieasures are taken ; as also the apport io~~ment of

Xiensions or gratuities to the family and dependants of the Rajah.”

Upon the receipt of the above letter from the Government of India, the Madrae

Government, on the 25th of September, 1856, appointed Mr. Forbes to be Com-

missioner for the purpose of the matters in question, and furnished him with in-

structions in regard to the conduct of his duties as such Commissioner. The material

portions of those instructions were as followx :-“ Par 2. Under the authority now

conveyed from the Supreme Government, the Right Honourable the Governor in

Council proceeds to appoint Mr. Forbes to be Co~missioner for the purpose of in-

quiring into and reporting upon the various questions demanding settlement in

connection with the extinction of the Raj of Tanjore, Par. 3. These subjects may be

divided into two classes: namely, those which have been left for the disposal of this

Government, and those which are to be reported to the Government of India before

any measures are taken. Par. 4. Under the first head fall-First. The Chuttrums

endowed by the Rajah of Tanjore; the a r r a n ~ e m e n t ~ o be made for their future

~dniinistration, and for placing them upon an improved footing, as well as for the

recovery of the rents due to them, and of lands gradually alienated from them

Second. Allowances to Pagodas by assigiinient of the late Rajah, or his ancestors,

their nature, whether terminable with the Raj, or proper to be continued as per-

petual endowments, [485] and in the latter case, whether by grants of money or of

land. Third. The state of the landed property, villages, or detached lands retained

by Sevajee on the cession of the Tanjore country in 1799, or subsequently acquired

by him or by the late Rajah, the claims to or liens upon them. Fourth. ThG aboli-

tion of the Rajah’s Courts, and provision to be made for the dispensation of civil

and criminal justice by Courts of the Honourable Company of some of the classes

obtaining in their territory. Par. 5. On all these questions it will be for the Corn-

missioner to report to Government after due inquiry, and the Government will then

pass on each such final orders as may appear to be called for. Par. 6. The subjecta

reserved for the ultimate decision of the Supreme Governnien~ are-First. The

debts of the late Rajah. Second. The State property, viz. :-jewels, library, armoury,

etc. Third. Stipends, pensions, or gratuities to the family, servants, and dependants

of the late Rajah. Par. 7. On these matters it will be for Mr. Forbes to report in

detail, and to supply all the information that may be necessary to assist the Govern-

ment of India in their settlement. Par. 8. Lists will of course be taken of all the

jewels belonging to the Raj, and passing with it t o the Honourable Company, as also

of the State armour and weapons, and catalogue of the library. Due means will be

adopted for the safe and careful custody of these valuables, until the pleasure of the

~ o v e r n n ~ e n t of India be known regarding them.”

Acting under this authority Mr, Forbes directed the chief officer of the palace ta

prepare statements of the lands and other State property of the Raj, and on his

arrival at Tanjore, as the statement had not been made out, he addressed a letter,

dated the 17th of October, E4861 1856, to that officer, in which were these para

391

VII HOORE IND. APP., 487 SECRETARY OF STATE I N COUNCIL OF INDIA

graphs :-‘‘ Par. 4. When, on the 15th instant, I communicated to you, to the Durbar

generally, and the nephews of the late Rajah, the decision at which the Gavern-

rnent had arrived with reference to the Tanjore Raj, and the general principles on

which I was instructed to act in resuming the Raj and making provisions for the

family and retainers, I informed you that, while all private property would be

scrupu~ously respected, the public property of the State would pass to the British

Government: that property the Government have ordered me to place in safe and

careful keeping. Par. 5. To enable me to do this, and also t o place it in my power to

obtain all the information I require abount the State property, whether in land,

jewels, or otherwise, i t is my intention to assume possession, in the name of the

British ~overnment, of all the late Rajah’s villages and gardens, iiicluding endow-

ments to Choultries and Pagodas, of the public property now in the fort of Tanjore,

aird of all the reeords connected with the Raj ; but while it is necessary that I should

do this, I have to assure you, and to beg that you will assure others, that a careful

investigation will be made into all claims that may be advanced by institutions or

i i~d~viduals t o any par t of the property, and that all to which a claim may be sub-

stantiated will be restored to its proper owner.”

On the 18th of October, 1865, Mr. Forbes took possession of the property within

the for t of Tanjore, and of the lands held by the late Rajah, or held by those who

held them under Sunnuds of the Rajah.

After taking possession of the property in the manner above mentioned, and

while Mr. Forbes was [487] engaged in making lists and catalogues of the articles

constituting the different descriptions of the property, and selling part of the pro-

perty, a Bill was filed by the Respondent on the 18th of November, 1856, on the

equity side of the Supreme Court a t Madras, against the East India Company. The

Bill stated, that Sevajee at the time of his death, was possessed of and entitled to, as

of his own right and private property, and distinct from the property belonging to

the Raj of Tanjore, large estate.., both real and personal, of the ralue of many lacs

of rupees ; that on the death of Sevajee, the Respondent, as his eldest widow, accord-

ing to Nindoo law, became entitled to inherit and possess his private and particular

estate, real and personal, and to a d ~ i r ~ i s ~ r the same ; and that, with a full know-

ledge of the Respondent’s rights, the East India Company, by their otficers, servants,

and agents acting by their orders, aiid in particular by the Collector and subordinate

officers of the ~oIlectorate of Tanjore, and hy Mr. Forbes, begaii to interaere and

intermeddle with the private estate and effects of Sevajee, and thereby, and from

their power and control over the couiitry, prevented the Respondent from receiving

and possessing the same, and had refused to deliver the same to the Respondent, and

that jhe officers arid servants and agents of the East India Company had possessed

themselves of the whole of the private and particular estate and effects, real and

personal, of Sevajee, and had made, or were making, full and particular lists and

inventories thereof, and had sold and disposed of and destroyed a conside~able part

thereof, and had received the proceeds of the sale and disposal thereof, and retained

the same in [488] their hands, and threateiied and intended, unless restrained by the

injunction of the Court, to sell and dispose of the remainder thereof, and to appro-

priate the proceeds to their own use; and the Bill prayed that the R ~ p o n d e n t , as

the eldest widow of Sevajee deceased, and the first married among his surviving

widows, might be declared by the decree of the Court entitled to inherit and possess,

as his heir and legal representathre, his private and particular estate and effects,

real and personal, left by hini atn the time of his death, subject to the payment and

satisfaction thereout of the private debts, if any, of Sevajee, and to any legal claims

and demands that might exist against such private and particular estate and effects.

That the East India Company might be declared to be trustees for the Respondent

for and in respect of the private and particular estate and effects, real and personal,

left by Sevajee at the time of his death, and possessed by them, their officers, servants,

and agents, as in the Bill mentioned, o r which without their wilful neglect or default

might have been so possessed. That an account migh.t be taken of the private and

particular estate and effects, real and personal, of Sevajee, possessed by the East

India Company, their officers, servants, and agents, or which without their wilful

neglect or default might have been so possessed, and of the value thereof, dist~nguish-

ing what shall remain in specie from what shall have been sold or otherwise dis-

392

9. ICAMACHEE BOYE SAHABA [ 18 59 J VII BBOORE IND. APP., SB

posed of. That the East India Company might be directed forthwith to deliver up

to the Respondent the private and particular estate and effects of Sevajee which may

so remain in specie, and to pay to the ~espondent the value of such part thereof,

which by their wilful neglect or default [48Ef] might not have been possessed by them,

their officers, servants, o r agents, as aforesaid, or which may have been sold or other-

wise disposed of by them, their o%cers, servants, or agents, as aforesaid. That the

East India Company, their officers, servants, and agents, might be restrained by the

injunction of the Court from further interfering, intermeddling with, selling, or

disposing of the private and particular estate and effects, real or personal, left by

Sevajee at the time of his death, and for a receiver.

The Supreme Court a t Madras granted an injunction restrainiilg Mr. Forbes from

proceeding with the sale.

The answer of the East India C o ~ p a n y stated that Rajah Sevajee was up to and

a t the time of his death, Rajah and reigning monarch of Tanjore, and was a

Sovereign prince entitled to and in the exercise and enjoyment of the rights,

privileges, powers, and dignity of an absolute Sovereign within the liniits of the

hereditary fort of Tanjore, and of certain other Districts and lands adjacent thereto,

but subject as to the residue of the country appertaining to the Raj, or kingdom of

Tanjore, to certain engagements and relations between himself and the British

~ v e r n m e n t . And the answer f u r t ~ e r stated, that in entering into the Treaties

before mentioned, and in treating the sovereignty and territories of Tanjore as

lapsed to the East India Company for the purposes of the Government of India in

trust for the British Crown; in appointing, through the Government of India, Mr.

Forbes a8 Special Cornmissioner, and in taking possession of the property of the late

Rajah, they acted in their public political capacity, and in exercise of the general

powers, privileges, and au-[490]-thorities vested in them by the various Charters

and Acts of Parliament, by which the possession and goverument of the British

~ e r r ~ t o r i e s in India, and the powers of making peace and war, and entering into

Treaties, had been committed to them i11 trust for the Crown of Great Britain; and

that all the acts and matters set forth in the answer, were acts and matters of State.

And by their answer the East India Company insisted, that the question as to their

right to take possession of the estate and property which Rajah Sevajee died pos-

sessed of and entitled to as Rajah of Tanjore, or of any and what parts of the estat'e

and property, was a question of State arising from the character of the Rajah as a

Sovereign, and the political relations between the East India Company, acting in

trust for Her Majesty, and the State of Tanjore; and they, therefore, submitted that

the matters set forth in the answer, and on which they rested their right to take

possession of the property which wall of the late Rajah of Tanjore, involved the

construct~on of Treaties and of other acts of State, and were matters which could

not be inquired into by the Court, or in any Municipal Court of justice within Ber

Majesty's dominions. And the answer further stated that, without in any way waiv-

ing the right of the East India Company to retain the whole of the property possessed

by them and mentioned in the schedules thereto annexed, and without in any way

admitting the jurisdiction of the Court to inquire into the grounds on which such

right was vested; it had been deterrnined, as an act State and ~overnment, by the

East India Company, through their overn nor-~~eral of India in Council and their

Governor of Fort St. George in Council, that the 14911 property and effects specified

in certain schedules marked G. H. 0. P. and Q. should be dealt with and disposed of

as i f the same had been the property of Rajah Sevajee as a private ~i~dividual ,

regard being had in the first instance to the just debts of and claims upon Rajah

Sevajee, which debts the East India Company were desirous should be paid from the

estate, they being willing to allow the whole of such estate and property to be delivered

over, subject to the debts of and claims upon the late Rajah, to the person o r persons

who would have been the legal repses~nt&t i~e or representatives of the Rajah, had he

been a privattt individual, upon such p e m n or persons giving adequate securitT, to

the sat~sfaction of the East India nipan any, for the proper adm~njstration of the

property in p a ~ e n t of the debts and otherwise. And the answer further stated,

that the Government had resolved to appropriate the whole of the property mentioned

in certain other scfieddules thereto marked M. and N., and all property s imiIar I~

c i r e ~ ~ ~ t a n c e d which belonged to Rajah Sevajee, and not to third persons who might

P.C. vm. 393 " 13a

VI1 XOORE IND. APP., 499 SECRETARY OF STATE IN COUNCIL OF IR'DZA

claim the same, for the payment of any of the debts due by the deceased Rajall

which might appear to them to be fair and just, and after such payment to appro-

priate the residue of such property towards making a provision for the family of

the Rajah. And the answer submitted, that, in any point of view, the question

whether any and what portions of the property left by Rajah Sevajne were his private

property, or were property of the State of Tanjore, was a question involving the

construction of a Treaty and relations between the States and the general political

powers of the Government of India ; and was, therefore, a question not [492] cog-

nizable by any Municipal Court of justice, And the answer further submitted, that

the Court had no jurisdiction in respect of the mattera aforesaid, being matters con-

cerning the revenues under the management of the Governor and Council. The

answer admitted the state of Sevajee's family, a t the time of his death, as stated in

the Bill, but without admitting that his property was liable to be administered as

that of a private individual; and the Defendants submitted whether, on the death

of Sevajee, all his surviving widows did not become his joint heiresses and repre-

sentatives, and would not have inherited his private and particular estate, if any,

to the extent of the interest of a Hindoo widaw accord~ng to Hindoo law. The

Defendants set forth in schedules annexed to their answer an account of the pro-

perty, estate and effects of Sevajee, including the property claimed by third parties,

possessed by them, or by their officers or agents on their behalf, and of the value

thereof, so far as they were able to form any opinion respecting such value ; but with-

out admitting that the Rajah left any property that could be called his private or

particular property ; and without admitting that the Respondent had any legal claim

or right in respect of any property taken possession of by the East India Company

or their officers or agents, the answer stated that they did not intend to treat the

property of Sevajee in the schedules, marked G. H. 0. P. and Q. respectively, as

belonging to them for their own use, or in trust as aforesaid, or othern' rise, or as

formin8 part of their revenues, or as being applicable to the purposes aforesaid.

Schedule G. of the answer, contained a list of certain property, described as real

property acquired since [&3] 1799, which from its nature was not essentially public

or State property. Schedule H. contained a list of similar property not taken pos-

session of by the East India Company. Schedule 0. contained a list of personal

property described as acquired since 1799, and which from its nature was not

essentially public or State property. Schedules P. and Q- contained a list of personal

property of the same nature, not taken possession of by the East India Company.

Schedule R. contained a list of the horses, elephants, cattle, carriages, etc., of the late *

Rajah which had been sold.

The hearing of the cause took place on the 29th and 30th of September, and the

1st of October, 1857, when evidence not material to state was gone into on both

sides. The cause stood over until the 11th of December, 1857, for judgment, OIL

which day the Court decreed and declared that the Respondent, as the eldest widow

of Sevajee, and the first married among his surviving widows, was entitled to

inherit and possess, as his heir and legal representative, his private and particular

estate and effects, real and personal, left by him a t the time of his death, subject to

the payment and satis~action thereout of the private debts, if any, of Sevajee, and

to any legal claims and demands that might exist against such private and par-

ticuIar estate and effects, and that the Defendants were trustees for the Respondent

for and in respect of the private and particular estate and effects, real and personal,

left by Sevajee at the time of his death and possessed by them, their officers,

servants, and agents ; and the Court ordered that it should be referred to the Master

to take an account of the private and particular estate and effects, E4941 real and

personal, of Sevajee, possessed by the Defendants.

The following reasons for this decree were transmitted by the Chief Justice,

Sir Christopher Raw1inson:-"The Plaintiff by her Bill prays that she may be

declared, as senior or first married widow of Sevajee, the late Rajah of Tanjore, who

died without male issue, to be entitled to the private and particular estate and effects

of her deceased husband, subject tQ the payment of his debts, etc. She also prays that

the Defendants may be declared to be trustees for her of such of the property as may

have been taken possession of by them or their servants ; also for an account and a

Receiver. The Defendants in their answer set up two lines of defence; first, that

394

2). ~ ~ ~ f A ~ ~ E E SOJE SAHABA [1859] VI1 ~ 0 0 ~ ~ IND. APP., 496

the Plaintiff has no case on the merits : and, secondly, that the Court has not any

~urisdiction to try the suit. As regards the first, they submit that the late Rajah

Sevajee was an independent and absolute Sovere~gn, and as such was not possessed

of any private estate as distinguished from the public or State- property; and they

further allege, that, according to Hindoo law, all the widows, and not the senior

widow alone, are entitled to succeed to the estate of a ~ a h r a t t a man dying without

male issue either natural or a~opted. In support of their second line of defence,

namely, that the Court has no jurisdiction, they submit that they took and detained

the property of the late Rajah in their public and political capacity: that their

taking of the p r o p e ~ y was an act of State, and that the question of what portion i s

private and what pub~ic ~ r o p e ~ y involves the constructian of a Treaty, and that

co~sequent~y neither this nor any other ~ u n i c ~ p a K Court in Her ~a je s ty ’ s d o ~ ~ ~ n ~ o n s

has any [4$6] ~ u r i s d i c t ~ ~ n to entertain the question. It was also urged that the

Court had no jurjsdict~on, because the suit has reference ‘ to a matter c o n c e r n ~ n ~

the revenue under the management of the Governor and Council.’ I will now state

what 1 consider to have been estab~ished on the one side and on the other, and how

much of the several defences relied on by the ~ e f e n d a n ~ s have been made out. I

think that ail the material facts set out in the Plaintiff’s Bill have been clearly

proved. X ani of opin~on also that the Pla~ntiff, accord in^ to Bindoo law, Is, as the

senior and first married widow of the late Rajah Sevajee, entitled to her late hus-

band‘s private and particular estate and effects; and that the Defendants have

wholly failed to prove or point out to us any law or custom, such as is alleged

in their answer, under which all the widows succeed to their deceased husband‘s

estate under c i rcum~ances uch a8 have been est~blished in this suit. This ground

of defence, it may be observed, goes only to the ~ ~ q ~ t ~ ~ ~ and not to the root of the

P l a i n t i ~ 8 claim. I am also s a t ~ ~ ~ e d on the evidence that the late Rajah Sevajee,

a Bindoo of the Soodra caste, was not a member of an undivided ~ a ~ i l y , and that

he was possessed of private and se~f-acquired property, both real and personal, and

that a distinction was observed during his life betxseen his State or Crown jewels

and those which he either purchased himself or caused to be made for the use of his

numerous w i v s and their families. An inspection of the scheduies attached to the

answer, as well as the answer itself, confirms me in my opinion that much of the

property detained by the Defendants is of such a nature as cannot allow of its

being consider^ State property. Take, for inBtance, schedule R., the c o n ~ ~ i t s

[@6] of which have been sold by the ~ ~ f e n d a ~ ~ t s . Can it be belierred that all the

carriages, ~ncluding numerous pony carriages and children’s carriages, and palan-

quins, o r the cows and horses, ponies, etc., were State or public property, o r ever

treated as such, or that, all the contents of shedule M., including nunieraus fenia’te

jewels and t r ~ n k e ~ , or that all the female ~ p ~ a r e ~ , clothes, shawls, silks, laces, etc., in

schedule O., are State property? It i s t rue that, as regards same of these schedu~es,

C., IT,, O., P., and Q., the Defendan~s, in their very cautiously drawn a n s ~ e r (and

which, were it not that of a C o ~ o r a t ~ o x ~ whose personal knowledge in most i n s t a n c ~ ~

i s necessarily small, might be considered u n s a t i s f a c t o ~ ~ , admit that the property

in the last-named schedu~e ‘ is not e s s e n t i a ~ l ~ public,’ a somewhat a m ~ ~ g u o u s

phrase; and that as regarded it and some other property, both real and personal,

they do not intend treating it in the same way, or on trust, as the property in the

other schedules, but are willing to give i t up as. if it had been private property, f

will only observe 011 this, that I do not exactly see, unless the property referred to

i s priva~e, how the Defendants can justify t r e ~ t i n g in any other way than as public

property, really public, and which as such has come to their hands in trust, But

thc learned Counsel for the Defendants contend that the contents of the schedules

and the nature of the property are immateria~, as no d~stinction, they say, calf bc

allowed between the public and private property of an absolute Sovereign, a5 he

can dispose of the whole of i t as he may think fit; citing as an a u t ~ o ~ i t y for this

principle the case of The A ~ o c ~ ~ e - ~ e ~ e r ~ of ~~~~~ v. A ~ ~ ~ c ~ u ~ ~ (I Knapp’s

P.C.‘Cases, 329 n.), and The ~ ~ ? - ~ - ~ ~ ~ ~ f f ~ ~ v. &m*d [497f ~ ~ i ~ ~ f f ~ (9 C1. and Fin.

211). This Iast case was referred to for the following ~ ~ e ~ ~ / ~ of Lord Xjroughaitlli’s,

namely, ‘It is only within the last h a ~ f ~ e n t u r y that any private ~ r ~ ~ e r t y

has beexi acknow~edged to exist in the Crown at all: prior to &tat,

all lands d e s c e n d ~ ~ ~ g an the Crown, even from ancestors or collateral

395

VI1 XOORE IND. AE’P., +9%

relatives, were held 3ut.f: caro*pzoe. All the ~ r o p 0 ~ ~ of the Crown i s held

for public purposes, and i s Grown pruperty, except that which the in-

dividual Sovereign has retained a right to deal with in his private and per-

sonal capacity~ This ~~t~~ appears to be ~ n f i n e d to landed property, and,

whether strictly correct as regards all landed property, is, I think, with every respect

to the noble and learned Lord, fairly open to doubt; for, though i t is true that

according to the C o m ~ o n Law of ~ n g ~ a n d the King, being ~ o r p o r ~ t i o n , pu~c~kases

of real property made by him after the assumpt~on of the Crown vest i n him in his

~ o v e r e ~ ~ n capacity, and descends ta his successors, ‘ still purc~~ases made before the

accession to the Crown, or descent. from co~~at0raL ancestors after the acoessiou

of the Crown, vests in a natural capacity ’ (see Co. Litt. 15 b, note 4), showing that

even in Ellgland the Monarch could take real as well as personaf property in his

own right. As was, however, observed by the Bench during the ~rgument , the

Statutes 0% 1 Anne, e. 7, and 39th and 40th Geo. III., c. 88, regulate questions re-

garding the private property o€ the British S o v e r e ~ ~ n ; and it is not by the English

Statute, or Common law, that the questio~s in this suit are to be decided, but by the

Windoo law. And even the statement in the case referred to, 1 Knapp’s P.C. Cases,

329, namely, that there was no d~s t inc t~on between the publ~c and private p ~ o p e r t ~

of [@($J a a absolute Sovereign, must, 1 think, be taken in c o n n ~ t i o n with the facts

of that case, and the point then under the consideration of the Court. In that

case, as well as in to^^ v. ~ e ~ r ~ ~ c ~ ~ ~ (I Knapp’s P.C. Cases, 316), the

question arose out of the seizure of an enemy’s property; and it was held that on

the seizure of the property of a hostile Soverei~n, si. wm ~ ~ ~ ~ u ~ ~ e sed %on dum

ceesmhte beZEo, no distinction could be al lwed between his public and private pm-

perty. Here there is no question as to the seizure of an enemy’s property, or ae to

peace or war, but whetlier the lata Rajah Sevajee possessed any pyivate property,

and if so, whether the detention of such property, now belonging to an inhabit an^

of a territory peaceab~y become part of the British territories in India, can be justi-

fied, and on the grounds set up by the ~ e f e n d a n ~ . But a d ~ i t t i n g that i n the

case of an absolute Soverei~n, such as was contempla~d in the above case, no

distinction can be made between his public and private property (and few such, 1

think, can be found in the present age), can I assume, on the facts before us, that the

late Rajah was such an absolute Sovereign as that he could have disposed of his fort

o r other public buiidings or State jewels as he did of his other property, both real

and personal? There was no proof before us of his ever having dispo~ed of any

of the State property ; and as to his being an absolute Souereign, what evidence had

tho Court before it of that fact? The evidence, as far as it went, tends, I think,

to show that his S ~ 9 e r e i ~ n t y was little more than nominal; that be esercised no

Sovereign powers over the ~ ~ n g d o m of Tanjore j that he resided within the cireum-

scribed limits of the fort of Tanjore (where a resident and officer of the East

[499] India Company was aIways present), enjoying little more than, to use the

e~pressioii of the Directors of the East India Company, a titular Sovereigrity~ and

certainly not more than, to adopt th0 words of the Defendants’ answer, ‘ the outward

state and dignity of the r e ~ g ~ ~ i n g n ~ o n a r c h ~ To what even that ~ ~ o u n t e d was not

very clearly shown. We had evidence, however, that the late Rajah never did any

of the acts that mark Sov0reign poursr; €or instance, he did not send or receive

AnI~assadors, or keep up political relations with any foreign States; he did not

coin money ; he did not collect or in any way manage the revenues of the Kingdom

of Tanjore; but it was shown that he received an annual stipend fro= the East

India Company, some of his receipts for which were put in, for what purpose I

hardly know, unless, perhaps, for the last few words, by which the receipt of a

certain sum on account of the Ea& India Company was acknowl~c~~ed ‘ as part of my

lac of star pagodas and one fifth part of the net revenue of my country for th0

year Upon the whole of the evidence

before us I am satisfied that the late Rajah Sevajee was not the absolute Sovereign

s u g g ~ t ~ d by the Defendants, and that he had private property, both real and

personal, as I have above stated. 1 am further Stren~~Iiened in this last ~onclusjon

hy the fact that, a c c o r d ~ n ~ to Hindoo law and custom, a Eindoo S o v ~ r e ~ g n may have

private property. See Strange’s “ Eindu Law,’” vol. i. p. 209, wheSe, after stating

that a k ~ n ~ d o i n is not divisihle, it is added, that ‘ the effects and private estate of

a Sovere~gn, like those of an ordinary indiv~dual (Hindoo), are in common, and

396

~ ~ C ~ E ~ ~ R Y OF STATE I N COUNCIL OF IXDIA

’; not of any k i n ~ d ~ m , be it observed.

2). K A ~ ~ ~ ~ ~ ~ BOYE SAHARA [lSSS] VU lKOORE IND. BPP., 600

dist r ibuta~~le anio~igst his sons.’ And 2nd vol., App. fSW] 329, is to the same effect.

See also 2 Colebrooke’s Hindu Law, c. 4 , s, 1, et sep. Xy judgment on the above part

of the case has been formed without any reference to the Treaty of 1799, put in

evidence by the ~efendants , possibly for the purpose of supporting one of the points

raised by them, namely, that the Court could not take cognizance of the suit, because

i t involved the construction of a Treaty. Upon this point I would here remark, as *

well as upon some others equally beyond dispute, but which were much dwelt on

by the learned Counsel for the Defendants, that the Court has never entertained any

doubt respecting them, though not able to see their applicability to the facts of the

present case. I refer to such points as that the construction of Treaties, or the

public acts of State between Sovereign powers, or acts relating to peace or war,

could not be tried by any ~ u n ~ c i p a ~ Courts. As little matter of doubt i s i t that

the East India Company, though subjects, have certain Sovereign powers delegated

to them, such as those of making peace and war, and of making Treaties with certain

of the native powers in Asia, and that concern~ng such acts as can be included under

the above heads neither this nor any other munic~pal Court has any jurisdiction to

inquire. But in the way in which the PIaintiff shapes her case before the Court,

I think, that these points do not fairly arise. The ~ l a i n t ~ f f sues as a private indi-

vidual, and as the subject of a country forming part of the British territories iu

India. Of the annexion of the Raj, of the Defendants taking possession of its

revenues, or of the State property of the kingdom, whether consisting of lands, forts,

jewels, or munitions of war, she makes no complaint. She sues only for what

[Sol] she alleges to be her property according to the Hindoo law, namely, the

private estate and effects of her deceased husband, Rajah Sevajee, the whole of

which, she alleges, the Defendants detain frmn her without any justification. Let us

proceed now to the Defendants’ second line of defence, namely, that to the jurisdic-

tion of the Court. They say, a ~ u m ~ n g that there was private property, its seizure

and detention cannot be inquired into by this Court : first, because i t s seizure was

an act of State; and, secondly, because the property seized, or a portion of it a t

least, is revenue. First, then, as to the seizure being ‘ an act of State’ (though

many of my arguments will bear on both lines of defence). What i s an act of

State? It is not every act by a ~ v e r n m e n t , or by those representing the Sovereign

in a foreign country, which will be exempted from the jurisdiction of the Municipal

Court*. (See Canzerm v. Ziyte, 3 Rnapp’s P.C. Cases, 332.) But assuming it11 act

of State to be a n act of the Sovereign power, in relation to peace or war, or an act

done by it as being absolutely necessary for the public safety, or ?se quid detrimelzti

Tes publica capirxt (and under this head a benefit or increase to the revenue can

hardly be included), or acts of a similar description, have the Defendants brought

the acts of seizure and detention of the Plaintiff’s property within the principle of

the protection they set up? And further, was, in fact, the seizure of the private

property an act ordered by any ~ o v ~ r n ~ e n t a t all? Xow what are the facts proved

which bear on this portion of the case? After the death of the late Rajah Sevajee,

which took place in October, 1855, it was determined by the East India Directors

that tlie Raj of Tanjore had lapsed to the East India Company for want of [&)2] male

heirs to Rajah Sevajee. Though this lapse was not immediately publicly announced,

the East India Company must, I think, be considered to haire become the Soverei~n

power throughout the kingdom of Tanjore from the death of Rajah Sevajee. Na

very perceptible change in the government of the country a t large would be made,

as the territories of Tanjore had long been under the ~ a n a g e m e n t and control of

the East India Company. Such then being the state of things, it is only after a

correspondence between the East India Directors and the Government of India and

of Madras, that in September, 1856, Mr. Forbes is appointed, under the direction of

the ~ v e r n m e n t of India, for the purpose of inquiring into and reporting upon thc

various questions d e ~ a n ~ i ~ g s e t t l ~ m e ~ t in connection with the extinction of the

Raj of Tanjore. I n the letter of the G o v e r n ~ e n t of India, of the 8th of September,

1856, authorizing the appointment of an oBcer on this special duty, I. find the

following passage:--‘ %ut the mode in which it may be proposed to deal with the

Rajah’s debts, and with the State jewels, library, and a r ~ o u r y , should be reported

to the Government of India before any measures are taken.’ It might be contended

from the c o ~ c ~ u d i n g words of the above extracts that no authority wfas given or

397

Vfi MOORE INI). APP., M13

intended to be given for the taking p o ~ e s s ~ o n of even the State jewels, etc., till

some further report had been made to the Government of India. Such, however,

does not appear to have been the construction put upon i t by the ~ v e r n m e n t of

~ a d r a s , who, on the receipt of the above letter, instructed Mr. Forbes, in a letter

of the 25th of September, 1856, ‘ to take lists of the jewels belonging to the Raj, and

4 passing with i t to the on our able Company, as also E5031 of the State armour^

and weapons.> Neither of the above letters appear to contemplate, much less to

authorize, the seizure or detention of other than State property, or, in other words,

of the property of the Raj, passing with it to the East India Company. It was

proved, however, I may here remark, that previous to this author~ty being given,

the rents and profits of the villages and lands bought by Sevajee had been received

by Mr. Forbes since the Rajah’s death. The evidence of Ra~iachui~dra Row, uncon-

tradicted, is, that Xr. Forbes had been receiving the rents and profits of those

villages since Sevajee’s death. The sale also of the contents of schedule R. had

taken place early in 1856. On the 18th of October, 1856, i t is that Mr. Forbes,

having received his new authority, which is relied on for making this seizure an

act of State, took possession of the property in the fort of Tanjore. It appears to

have bee11 an indiscriminate seizure, both of public and private property; the orders

of the two govern men^, as I have above pointed out, having been expressly confined

to the State property. ~ ~ u m ~ n ~ thea that. iho taking possessioii of &e public and

State property can be considered an act of State, as ordered by the Government of

India, and as being a necessary consequence, perhaps, of the assumption of the

Raj, how can the seizure and detention of private property (and especially of such

portion as consists of rents and the produce of sales made previous to October, 1856)

come under the same protection? The seizure of the private property can, I think,

be held to be brought within the protect-ion of the act of State plea only on proof

either that the property was &OM @e believed a t the time to be all public, or that.

its seizure was rendered [goa] unavoidab~e from the impossibility of d i s t~n~u i sh ing

the one from the other, or beeause the public could not possibly have been taken

possession of without also seizing the private. This last ground, i t should be

observed, affords no excuse for the detent io~. But we had not any evidence of such

a state of circumstances existing as I have above suggested ; no State property was

shown to have been in danger, nor was there any evidence that there existed any

d i ~ c u l t y in separat~ng the one Prom the other, which ordinary care and patience,

even after the seizure, might not have overcome. I say even after the seizure, for

i t should be borne in mind that the grava~neri of the P1ainti~’s complaint before

the Court is the detention of her private property; not the seizure, which of course

would have been the subject-~at ter of an action of trespass on the plea side of the

Court ; nor had we any proof that t h r e was any h a m fide belief that all was public

property. on the co-iitrary, Mr. F o r ~ s , in his letter of the 17th of October, 1856,

written the day before the seizure, shows that he knew there was private property

a i ~ ~ o n ~ s t that about to be seized, for he expressly states that all property to which a

claim shall be established shall be restored to its owner. It appears then from the

above, that an order having been issued to take possess~on of public property.

private property was taken, and is now detained under the circums~ances above

set out. I am of opinion that such detention cannot be cons~dered an act of State,

nor can I consider that the subseque~t adopt~on by the ~ e f e n d a ~ t s can make that

an act of State which originally was t o t so. The remaining ground relied on by the

~ e f e n d a n t s to bar the jurisd~ction of the Court is, that the seizure ~~~~ related

to a matter of revenue, from inquiry into which the Court is expressly precluded by

the 23rd clause of the Charter establishing the Court. In support of this point the

learned Counsel cited the Statute, 1$th and 17th Qict., c. 95, sec. 27, by which it

is enacted ‘ that all. real and personal estate within the said terr~tories, escheating

or lapsing for want of an heir or successor, and all p~operty within the said

territories devolving as bona ~ a c u ~ ~ ~ ~ for want of a rightful owner, shall (as part

of the revenues of India) belong to the East India ~ o m ~ a n y , in trust for Her ~ a j e s t ~

for the service of the ~overnment of India.’ Looking to the words used in the

Charter, and the inconvenience intended to be guarded against, I am inclined

to think that a sery fair doubt may be entertained as to whether an escheat, or

lapsa tinder the above Statute, comes within the worda of the C l ~ a r ~ e r as ‘ resenue

398

S ~ ~ ~ ~ ~ A R ~ OF STATE IN & O U ~ ~ I L OP INDIA

v. K A ~ ~ A ~ ~ E E BOY BAHABA [I8591 VII MOORE IND. UP., 806

under the management of the Governor (of Fort St. Gorge) and Council, ox as

revenue collected under Regulations made by him.' I think also that the same

reasons do not exist for preventing the subjects of the Queen from resorting to Her

Courts in the case of such escheats as in cases relating to the collection of the ordi-

nary revenue, made as it is to a great; extent in small sums, and under regulations

and usages which it might be exceedingly inconven~ent o submit to the considerat~on

of tlie Queen's Court. I think, however, that this line of defence, namely, that the

property seized was revenue, may be disposed of on the same grounds as I have con-

sidered a sufficient answer tQ the defence that the seizure was an act of State: for

supposing that the seizure of the public property, which had lapsed to the East

India Company under the Statute, &06f to have been an act done in the collection of

the revenue within the meaning of the Charter, can we extend the same protection

over the wilful seizure and detention of private property ; a n act not ordered either

by Governi~ent, or ~ust,ified by any ~ e ~ u l a t i o n , or necessitated by any d i ~ c u ~ t y or

unavoidable necessity, as I have above already shown? I think we should not be

justified in doing so, being of opinion that tlie property was seized and has since

been detained with the knowledge that some of it was private property. This fact,

1 think, distinguishes this case from Spu9ier v. Jccddour (4 Moore's Ind. App. Cases,

353), whicli was relied on in support of the revenue defence as well as that of the

act of State. In that case a slip had been made ; and there can be little doubt, after

reading the facts of that case, but that the Defendant bona fide believed that he might

make the distress for the whole arrears of quit-rent due from the premises, without

regard to the question of whose name was mentioned in the warrant. I fully s u b

scribe to the authority of that case, as well as to the large class of cases establishing

the rule, that paxties b o m fide believing they are acting in pursuance of a Statute

and according to law, are entitled to the special protwtion which the Legislature

may h w e afforded them, though they have been guilty of an illegal act. But I do not

think the pr inci~les there laid down applicab~e to the present case, which is dis-

tinguishable not only on account of the want of bona fides, but also on the ground

that it i s not an action of trespass for the seizure, but a suit for the detention of the

property of the Plaintiff. I must here observe that though I am now deliver in^ the

judgment of the Court, Mr. Justice Davidson, who, owing to his absence, has not

[WTJ had any opportunity of reading this judgment, and consequently is not

answerable for the reasons or observations contained in it, fully concurs with me in

the facts of the case and in the conclusion at which I have arrived, namely, that the

J'laintiff is entitled to a decree, on the ground that, as to part a t least of what they

have done, the defence set up by the Defendants cannot avail them, because they

are unnecessarily and wilfully detaining private property of the late Rajah Sevajee,

with full knowledge that it is such private property, and that they have not any

title to it whatever. The Defendants having then failed to establish any of their

grounds of defence, it remains for me only to declare the Plaintiff entitled to the

decree of the Court as prayed:-First, that as senior, or first married widow, she

is entitled to the private and particular estate and effects of her deceased husband,

the late Rajah Sevajee. Second, that the Defendants may be declared trustees for

her for so much of such property as they have possessed themselves of. Third, for

an accoun~ of all property. The other points { i n c ~ u d ~ n g costs) reserved until after

the Master's report, and for furthe? directions."

The present appeal was from the above decree, and was prosecuted by the

Secretary of State in Council of India, who came in the place of the East India

Company (see Statute, 21st and 22nd Vict., c. 106, for the better Government. of

India ; section 3 declare8 that the Secretary of State is to have the powers formerly

exercised by the East India Company).

Sir Bugh Cairns, Q.C., Mr. Forsyth, Q.C., and Mr, W. H. Melvill, for the Secretary

of State in Council for the affairs in India.

The substantial question is, whether the traking pos-[508]-session of the deceased

Rajah's property by the East India ~ o ~ p a n y , in virtue of Treaties authorizing the

annexation of the Raj of Tanjore, was not such an act of State and Sovereign

authority as cannot be questioned or inquired into by a Municipal Court within the

territories of the East Inditt Company. Three questions are involved in this con-

sideration : First, whether by the Charters and Statutes creating and defining the

399

VI? MOORE ?ND. UP., 609 SECRETARY OF STATE IN COUNCIL OF INDIA

jurisdict~on of the Supreme Court at Madras, the East Indira; Company, as the

governing power in India, is amenable to that. jurisdiction for acts done by them in

their govern~ng and Sovereign character ; secondly, whether the acts complained

of are not acts of State and Gorernment and of such a nature, that. the Govern-

ment who harts done the acts, cannot be made amenable to any ~ u n i c i p a l Court

whatever ; and thirdly, whether, having regard to the fact that the seizure involved

the question of a Sovereignty, namely, the Raj of ‘I’anjore, there was any foundation

for the distinction taken by the Court below between the public and private property

of the late Sovereign the Rajah.

The Supreme Court of Madras was created by the

Charter of 1800. The 21st section of that Chaiter defines the jurisdiction of the

Court, the powers of which are extended by Statute, 4th Geo. IV., c. 71, s. 17. The

23rd section expressly provides that it shall not be competent for the Court to

entertain o r exercise jurisdiction in any suit or action against the Governor-

General or the Governor of Madras for o.r on account of any order, or other act,

matter, or thing done in their public capacity, or acting as Governor-General or

f5W] Governor and Council. The 30th section directs and points out the mode of

suing the East India Compony when it i s capable of being sued in the Supreme

Court. The Calcut t~ Charter of 1774, and the Statutes, 13th Geo. III., c. 63, sec.

13 and 14, and 21st Geo. IIL? c. 70, sec. 2, are in pa& ~~e~~ with the Madras

Charter. The quarrel between Sir Elijah Impey and Warren Hastings respecting

the jurisdiction of the Supreme Court of Calcutta, led to the passing of the latter

Statute (vol. 4 Mills’ Hist. of Brit. India, by Wilson, Book V. ch. 6), which excludes

that Court from taking cognizance of the acts of the Governor in Council. It is

necessary, therefore, to consider the position of the East India Company at the time

the Supreme Court at Madras was created by the Charter of 1800. Cnder the

Statute, 9th and 10th Will. III., e. 44, and the Charter of incorporation of Will 111.

of 1693, and Statute, 33rd Geo. III., ch. 52, sec. 1 and 74, the East India Company

had a twofold charikcter : first, they were a trading Company ; and secondly, they

had Sovereign authority, with the power of making peace and war. “She Statute,

3rd and 4th Will. IT.. c. 85, took away the trading monopoly, biit the Sovereign

rights were left to the East India Coi~pany in trust for the British Gover~~n~eni.-

[Lord Kingsdown : Does your a r g u ~ n e n ~ go to this extent, that the East India Com-

pany could not be sued at all in the Indian Courts?]-No, they were liable to be sued

in the Courts in India, as here, for acts done in their trading capacity. They could

be sued upon a contract. The Bank of Bengal v. The Uiliited CQrnpang (Bignell’s

Reps. 127 ; S.C, 2 Knapp’s P.C. Cases, 245). In Gibs012 v. The East India, Corn-[510]-

pany (5 Bingh. N.C. 273), the Chief Justice Tindal defines the character of the East

India Company and their liability to be sued for acts done in their trading capacity.

He says, “ It i s manifest that the East India Company have been invested with

powers and privileges of a twofold nature, perfectly distinct from each other;

namely, powers to carry on trade as merchants, and (subject only to the prerogative

of the Crown, to be exercised by the Board of Commissioners for the affairs of

India), power to acquire, and retain, and govern territory, to raise and maintain

armed forces by sea and land, and to make peace or war with the native powers of

India.”-[Sir John Coleridge: Doe d, ~ e e ~ ~ ~ ~ t ~ v. The East Zdia ~ o r i ~ ~ n ~ (6

Moore’s Ind. App. Cases, 267), was a case of ejectment brought in the Supreme Court

of Calcutta to iecover a piece of freehoId land which. the East India C o ~ ~ p a ~ ~

claimed to be entitled to.]--The transactions upon which the question in this suit

depended were not matters subject to the jurisdiction of the Madras Court, or indeed

of any Municipal jurisdiction in India. They were matters of State arising out

of a political transaction. The maintenance of such a suit, as is here contended

for, would be inconsistent with principles of public policy.-[Dr. Lushington : That

very question was decided here in 1827, in the case of Tfw East Ind’ia C o m p n 3 V.

Syed A& (see this case, post [7 Moo, Ind. App. 55511, when the Privy Council held

that the Supreme Court had no jurisdiction. That was a, case of resuxrkption of a

Jaghire held as an Altumghah enam under a grant from former Nawabs of the

Carnatic, which the Ea& India Company under the Treaties resumed by virtue of

their Sovereign power. It was determined thab the propriety of the [ G l l ] exercise

of such Sovereign power could not be q ~ ~ t ~ o n ~ by the Supreme Court a t Madras;

400

Upon the first point.

b. KAMACHEE ROYE SSHABA [1859] VI1 MOORE IND. APP., 812

the very Court from whence the present appeal comes.]--That case has not been

reported. It is no doubt most applicable, and is all important to our argument.

There is, however, another case, Dhackjee Dadajee v. The Zast India1 Company, which

is similar in principle, which came before the Supreme Court a t Bombay in 1843,

a report of which is to be found in Sir Erskine Perry’s notes of decided cases (2

Morley’s Dig. 307). That was ail action of trespass brought against the East India

Company, for breaking and entering the Plaintiffs dwelling house by order of the

Bombay Government, and it was held by both the Judges of that Court that no action

would lie against the East India Company, as it was an act done by the authority of

the Governor and Council, and, therefore, an act of State, and for which the East

India Company were not answerable. Being an act of State, it was clear that the

Supreme Court could not take cognizance of the action. On the first head we

submit then, that upon the authorities as well as tho principles of international law,

the seizure and taking possession of the property of the Rajah of Tanjore, pas an

act of Government and State, done by the East India Company in their Sovereign

character, and by virtue of their Sovereign power ; and as such, incapable of being

questioned or inquired into by any Municipal Court, more especially the Supreme

Court of Madras, created by the Madras Charter of 1800. The East India Company

I,. Syed Ally [7 Moo. Ind. App. 5551.

This brings us to the second question involved in the inquiry, namely, whether the

acts done were [512] not only acts of State, but done as acts of State; for if so, as

already shown, they could not be inquired into by the Supreme Court a t Madras.

Now, the authority for the seizure emanated from the Government. The despatch

of the 16th of April, 1856, declared the dignity of the Raj extinct, and that the

Raj had lapsed to the British Government ; and the subsequent correspondence from

the Government to the Collector, and the appointment of Mr. Forbes as Commis-

sioner, were all acts of the Governinent exercising the Sovereign authority, and the

ultimate seizure and possession of the Raj of Tanjore, and property of the deceased

Rajah, by Mr. Forbes, was the seizure of the Government, and an act of State. The

judgment of the learned Judge of the Court below admits that the seizure of the

public property, as it is there described, was an act of the State, and incapable of

being inquired into by the Supreme Court, and limits the remedy to the private

property of the Rajah; thereby affirming the jurisdiction of the Supreme Court to

adjudicate on the validity of the seizure, by determining what was public and what

was private property. Kow, that would be to assume authority over the entire

transaction. For if the Court has power to sever the acts of Mr. Forbes by ad-

judicating upon what they thought was an excess of his authority, they must have

power to ascertain and declare whether his authority in general has been rightly

exercised ; and we insist that in this respect it has not. Suppose an action of trespass

had been brought against Mr. Forbes for the seizure. Could the supreme Court

entertain such action? Certainly not. No person has a locm stand4 to bring such

an action, nor could the Court take cognizance [513] of it. The acts of Mr Forbes

were the a,cts of the Government, and if the Government is not liable to the jurisdic-

tion of the Court, neither is he. But admitting that the authority given to Mr.

Forbes was limited, and that he did exceed it, still his acts have been recognized and

ratified by the Government, which would cure such defect, Burom v. Denmarrz (2

Exch. Rep. 167). The Carolime (3 Phillimore on International law, 51). The

authority of a Prize Court in time of war, is an illustration of the argument upon

this part of the case, that the Supreme Court of Madras had no jurisdiction in a

matter entirely of State policy. In the time of war the maxim “ inter amna silent

Zeges,” would apply ip n Prize Court. That Court is established by Royal Com-

mission; its authority is special, but as affecting the objects of it, universal: t he re

fore, if a seizure be made of an enemy’s ship, though wrongfully, no action can be

maintained against the Government, or any of the parties concerned in such seizure,

in a Municipal Court; resort must be had to the Prize Court, which is the only

Court having authority delegated from the Sovereign power to t ry such a question.

This is distinctly laid down by Lord Mansfield in the cmes of Le C a m v. Eden (Doug.

594), and Lhdo v. R d m e y (Ib. 313, n.), and has been recognized and admitted by

this Court in Elpiinstome v. Bedreeehud (1 Knapp’s P.C. Cases, 316). As regards

the question that no suit will lie against the East India Company for acts done by

40 1

them as a Sovereign power in India, the cases of ~ o o d ~ f f , ~ v. Tfie East ~n~~ GO~Z-

pang (1 Bro. C.C. 469), Tits: RTabob of Arc& v. The East I n d k E5141 C o ~ ~ u n y (4

Bro. C.C. 180), decided in the Court of Chancery in England, are conclusive. SO in

l’andg v. 2’he Earl of ~ e ~ t ~ o r e ~ u n ~ (27 State Trials, 1246), the oEcia1 acts of the

Lord ~ i e u t e n a n t of Ireland were considered acts of State, and not within the cog-

nizance of the Municipal jurisdiction. The Dukt. of 3 ~ u n ~ w ~ c ~ v. The k‘irtg of

Ifanover (6 Beav. 1 S.C. 2 E L . Cases, I), is an authority to show that a Sovereign

Prince, resident in his kingdom, although a peer of the realm, is exempt from the

jurisdiction of the Court of Chancery for acts of State done by him in Hanover.

The same policy has been applied to Governors of Colonies. In MostyTh v. E ’ d ~ i g a s

(COWP. XSl), Lord Mansfi~ld laid it down that no Governor of a C o h y could be

sued while he is exercising the functions of a Governor. This case, it is true, has

been in some degree shaken by the decision in Hilt v. Bigga (3 Moore’s P.C. Cases,

465). That was an action of debt brought upon a contract entered into by the

~ e f e r ~ d a n t before he became Governor, and it was held that, upon such a contract

being utterly unconnected with his political character of Governor he was Iiable

to be sued in the Colony of which he was Goverrror. Cameron v. 2Zyl-e (3 Knapp’s

P.C. Cases, 332), relied upon by the Court below, has nothing to do with the case.

There the Goveriior exceeded the authority conferred upon him by his com~ission.

The late Rajah was, as regards this suit, an absolute Sovereign, and

the decree of the Court below erroneously proceeds on the supposition of there being,

in point of law, a distinction between the public and private property of an

absolute Sovereign. No such distinction exists. In The Advocate-General [515]

of Bowbay v. Amt.rchand (1 Knapp’s P.C. Cases, 329 n.), Lord Tenterden puts the

very question now in dispute. He asks, “ What is the distinction between the public

and private property of an absolute Sovereign? )’ and says, “ When you are speaking

of the property of an absolute Sovereign, there is no pretence for drawing such

a distinction: the whole of it belongs to him as Sovereign, and he may dispose of it

for his public or private purposes in trhatever way he ntay think proper.” Lord

rougha am in The Lwd Aduoea&e v. Lord ~ u ~ ~ ~ ~ s (9 C1. and Fin., 211), says, ‘‘ I

must beg to enter my protest against the distinction which has been taken in arguing

this ease, as to the prerogatives of the Crown being different, where the Crorn is

supposed to be dealing with what is called its private and individual property and

public property. The prerogative of the Crown is precisely the same as regards

what is called the property of the Sovereign, and the property of the public. I t

is only within the last half century that any private property has been acknowledged

to exist in the Crown at all. All property of the Crown is held for public purposes,

and is Crown property; it is public property which the Crown administers for the

~ a ~ n t e I i a n c e of the State.” Comyn’s Dig., tit. “ Praerogative~’ D. 64, supports this

view. The Rajah of Tanjore waa by the Treaties of 1793 and 1799, an absolute

Sovereign in the fort of Tanjore; he had there the power of life and death : as absolute

Sovereign, he could, therefore, have no private property, distinct from State pro-

perty. By the 13indoo law in the case of regalities like this Raj, the succession i s

exempted from the ordinary law of distribution, as the Raj goes to a single heir,

Strange’s “ EIindu Law,” vol. i. p. 209 ; ib. vol. ii., [616] App. p. 328-9 (Edit. 1830).

CoIebrooke’s ‘‘ Dig. of Hindu Law,)’ vol. i. p. 126; ib. ji. 122. It i s asked, then,

whether there is any diEerence between an English Sovereign before the Statute,

39th and 40th Geo. III., e. 85, and a Hindoo Sovereign, as to the right of private

property? No evidence is adduced upon this point, and the onaus undoubtedl!:

lies upon the Respondent to establish that there exists such difference.

Lastly, the decree proceeds on the footing of the Plaintiff, as senior widow,

being entitled to administer the private estate of the late Rajah. Now, there is

nothing in the relations between the Respondent and the East India Company to

sustain a suit in equity. There i s no privity of interest between them sueh as could

sustain a suit. The remedy, if any wrong had been committed, wouId have been

at law by an action of trespass, in trover, or detinue. 2’lie East Id& Coqa.ny v,

~ ~ ~ ~ ~ , ~ ~ ~ u d ~ ~ ~~~~a~~~~~ ~~~~~~~ (5 Moore’s Ind. App. Caserli, 217), ~ ~~ v.

~u~~~ (4 Moore’s Ind. App. Cases, 353). Again, the Respondent asks for an account

when no complexity of accounts exists. Fdey v. 3€iB (2 H.L. Cases, 28), FI7~rFer.

v. l’uyfooi. (3 Drewry, 183), establish the proposition that, if the accounts are not coin-

plicated they are the subject of an action, riot of a Bill i n CImncery. If there was

402

Thirdly.

2’. K A ~ l ~ C ~ ~ ~ BOVE SANAKA 1185!3] VI1 ~ O O ~ € INR. UP., 617

no remedy in law or equity, a petition of right would be the proper course. But if a

suit like the present could be sustained, the only proper decree would have been the

usual decree for the administration of the estate. There should have been first a

reference to the Master to inquire whether the deceased Rajah had any pri-[tjl’?]-

vate property ; and secondly, that the East India Conipany should render an account

of the property 80 found to be private. Such a course has not been pursued in this

case. Upon all these grounds, therefore, we submit, this decree cannot he sustained.

The Attorney-General (Sir Richard Bethell) (a) and Mr. Ayrton for the Respon-

dent.-& will be necessary in the first place tu ascertain the true S ~ U ~ W S of the East

India ~ o m p a [ ~ y , in order to see whether they are not amenable to the ~ u r i s d i c t i o ~ ~

of the Supreme Court of Madras, and accountable before that Court for the wrongful

acts complained of, Our contention is, that the East India Goinpany did not8 stand

in the position of a Sovereign power ; they were only a co~poration endowed, it is

true, with considerable franchises and prerogat iv~ , but by legislative e i iac t~ents

made accountable for their acts. Sovereignty iniplies the exercise of absolute un-

~ontrol lab~e power, without any qualificat~on. How then could the East India

Company be said to possess the Sovereign power i f they a re conzpellabl0 to justify

their acts, and to show that what they did it was within their power? The %tu %e

complain of were arbitrary acts, and can be brought in questioii before the ordinary

legal Tribunals. They were not done in virtue of Treaties or j w e belli. The account

given by the Defendants in their answer is, that the [SlS] annexation of the R a j

of Tanjore and the taking possession of the property was not an act of State, but that

the Raj and property lapsed to the Government; and that, therefore, the East India

( ~ o m p a ~ ~ y as the ~ ~ ~ ~ r n ~ haeres, took poss~ss~on as h o r n ~ ~ c ~ ? ~ ~ ~ a . Now, it can only

be upon the hypothesis that the Company has the same right towards the State of

Tanjore that the Queen of England has with regard to haereditas jcrceT6s that they

could so claim the private property. Such a pretension however is preposterous.

For it is apparent from the letter of Mr. Forbes of the 17th of October, 1856, that

the seizure was irot intended to include, o r was in exercise of any right the East India

Company might have over the private property of the Rajah, whatever they might

claim to have over the Rajah’s State property, for the ~ i ~ ~ r u c t i o 1 ~ is that

‘‘ all private property would be scrupulously respected.” Indeed, no authority for

such a seisure was ever deIegated to Mr, Forbes by the Government. This fact i s an

~dmiss io i~ that the East India Company would not interfere with the rights of tile

rnenzbers of the Rajah‘s family to his private property. The Respondent as the

senior widow was the proper party to sue, ab well for an account of property of her

own, which wad unjustly seized and then was in the East India Company’s posses-

sion, as of her hus~and’s private property. As the East India Company got posses-

sion of the property by the u n a u t h o s ~ z e ~ act of Mr. Forbes, no protection can be

claimed by them on the ground of State policy, nor are they exempt from the juris-

diction of the Municjpal Courts for the c o n ~ n ~ s s i o ~ of such a wrongful act. Bwen

v. ~e~~~ (2 Exch. Rep. 16%’) does noit apply. That wm an action for [GlSl damages

by reason of the Defendant, an odcer in the English navy, destroying slave baracoons.

The English Government, it appeared, adopted his acta as having been done by their

authority, which the Court held ~ u ~ v ~ l e n t to prior instruction^; being a n act of

State, the Crown was aalone responsible, and, therefore, no action would lie against

the Defendant. But here there is, in truth, no act

of State, but a wrongful seizure by the East India Company, who are bound to submit

to an inquiry and to account for their acts. The ’Pu’awab of Surat’s case (see 5 Moore’g

Ind. App. Cases, 499) was under a Treaty almost i*t 4psitmh~is verbis with the Treaties

in question. The Government in that case distributed the Nawab’s property among

his heirs in a certain manner, provided by a special Act of the Legislature of India,

No. XVIII. of 1848. It would be an act of injustice to say the ~espondent has no

remedy. In this country, if the Crown took possession of property, although a Bill

could not be filed in the Court of Chancery, yet a petition of right would issue a t the

instance of the subject aggrieved. The ~ e f e n d a n t s do not franie their answer as if

SO in the case of the Cardine.

( ( 8 ) The Attorney-General (Sir Richard Bethell) had been consulted on behalf of

the R~spondent before his appointment to the office of A~torney-General, and it was

arranged t-hat Sir Rugh Cairns, the late ~ol ic i~r-Genei-al , should a t the hearing,

eonduct the case of the Appellant.

403

VII MOORE END. APP.. 680 SECRETARY OF STATE IN COUNCIL OF INDIA

the seizure had been made in exercise of a Sovereign power, but they justify the

ixsking under an asserted legal title, alleging that the property lapsed to them Now,

we contend, that the East India Company is only a corporation created by Charters

and Acts of ~ a r ~ ~ a m e n t , but that they have not the Sovereign power in India. The

Sovereign power as exercised in India i s alone vested in the Governor-General and

Council, The Governor-General we admit is exempted from the jurisdiction of the

Queen's Courts in India, for acts done relating to State or E5201 public policy, but the

East India Company we submit, like any other British subjects, are liable to the

jurisdiction of the Court.

It will be necessary to establish this proposition to review the Charters and Acts

of €'arliaI~icnt affecting the East India Company. The Charter of King Charles the

First, of 1661, authorizm the East India Company to export warlike stores, and make

peace and w a r with native Princes within limits of their trade. Thc Charter of

1653, coiifers similar powers; but there the Crown reserves the Sovereign rights

over the forts in India, and the power of making peace and war when it shall think

fit to interpose the Royal authority. Now, we submit, tha t the Charter of 1661

was absolutely null and void, as the power of making war and peace are admitted

by all Jurists to be an incommun~cable ~rerogative. By the Chartcr of Will. III.,

of 1698, the powers of the East India Company are restricted to raising forces to

defend the forts; b u t all. Sovereign rights are again reserved, and amongst them the

power of e s ~ a ~ I i ~ ~ n g Courts of ~ u d ~ c a t u r e . The Statute, 13th Gea. III., c. 63, puts

the question of the undoubted Sovereignty of the Crown in India beyond all doubt.

This is the first legislative enactment that introduced a particular provision for the

Sovereign administration of the dominions in tbe East Indies that had been acquired

by the Company. By section 7, such Sovereign rights are vested in the Governor-

General in whom all the civil and military power is vested, who i s really the only

representative of the Crown, in India, and not the East India Company as claimed

by the A~pellant. His powers are defined in section 9 ; and section 13, reserves the

right of the [521] Crown to erect a Supreme Court of Judicature a t Fort ~ i l l i a m ,

to whom the Governor-General and Council a r e made amenable by the 15th section,

in cases of treason or felony; and also, by the 39th section for any crime, niisde-

~ e a n o u r , or offence, to the Court of King's Bench in England. The Statute, 19th

Geo. III., c. 61, sec. 5, renewed the appointment of the Governor-General for five

years: this office was continued by the 20th Geo. III., c. 61, sec. 5. Statute, 21st

Geo. III., c. 65, sec. 8, for tahe first time gave the p r o p r i ~ o i ~ n the stock a title to

share in the Co~~pany ' s territorial acquisitions. If, then, the East India Conipany

had done the act complained of shortly after the passing of this Statute, and, there-

fore, for the benefit of their proprietors, how could i t be said that they did i t in

virtue of a Sovereign power created by that Act? By the Statute, 33rd Geo. III.,

c. 52, sec. 9, the Board of Control have power given them to supe r i~ te I~d all concerns

relating to the civil or military Government or the revenue in the East Indies. Now,

we insist that the Board of Control has no greater power than the East India Corn-

pany, and, therefore, the creation of that Board cannot be said to invest the Company

with any new or increased prerogatives. Sections 40 and 41 empowered the

Governor-General a t Fort-William to superintend the Presidencies of Madras and

Bombay, if not repugnant to orders from England; and the 42nd section ~ ) roh ib i~s

the Go~r~rnor-General in Council froin declaring war, except in a case of ei~iergency,

without the consent of the Court of Uireetors and the Board of Control. Statute,

37th Geo. 111. c. 142, empowers the Crown to erect Courts of Judicature [522] at

Madras and Bombay; and section 10, exempts the Governor er Council of Madras and

Bombay from the jurisdiction of the CourtrJ, except for treason or felony. Now,

this proviso would be unnecessary if, a8 claimed by the Appellant, the East India

Company had the actual Sovereignty. So again under Statute, 53rd Geo. III,, c.

155, sec. 123, provision is made that the general issue may be pleaded in actions or

suits brought against the East India Company or their agents for acts committed

by them in arresking persons not authorized to reside or traffic in the East IndieR.

By Statute, 3rd and 4th Will. IT., c. 85, a further arrangement i s made with the

East India Company €or the government of India for a limited period. Section 10

expressly enacts, that the same remedy by proceedings, legal or equitable, is to

be had against the East India Company, and their property is to he

subject to execution. 33- section 39 the whole power for the government of India,

404

'

‘U. KAMACHEE BOYE SAHABA [1859] VI1 MOORE IND. APP., 623

is vested In ‘‘ The Governor-General of India in Council.” The authorities cked by

the Appellant, Doe d. Seebkl-isto v. The East India Company (6,Moore’s Ind. App.

Cases, as?), The Bank of Bengal v. The East India Gonqmny (Bignell’s Reps. 118),

The Eust India Company v. Nuthumbadoo Peeraswamy MoodeUy (5 Moore’s Ind.

App. Cases, 217), to sustain their proposition that a Bill in Equity was not the proper

remedy, shows that the East India Company are generally liable to the jurisdiction

of the Courts in India ; and the question, then, is reduced to this siniple point, whether

what they have done is an act of State? which we contend it was not.

Secondly. In any circumsta’nces, the East India Compitiiy, as successors to the

deceased Rajah, suc-[523]-ceeded only to the State property attached t o the Raj,

and not, to the private property of the late Rajah. He was a t the time of his death

entitled, as of his own right by the Hindoo law, to private property, consisting of real

estate, cash, jewels, horses, etc., distinct from the rights appertaining to the Raj.

He was of the Soodra caste, and had power, by the Hindoo law to dispose of his private

property, distinct from the Raj. Strange’s “Hindu Law,” vol. i., p. 209 (Edit.

1830), clearly so treats this point. He lays it down that “ the effects and private

estate of a Sovereign, like those of any ordinary individual, are in common, and

distributable among all the sons.” That is an authority that a Hindoo Sovereigli

’can have private property distinct from State property. Allen, “On the Royal

Prerogative,” p. 143, says that “ the ancient Anglo-Saxon Kings had private estates

which did not merge in the Crown, but were divisible by Will, gift, or sale.” So by

international law, as appears from Puffendorf, who, referring to Grotius, points

out the distinction, and lays i t down that the income may belong to the Sovereign,

and be dealt with by him differently from the corpus of the property which goes to

the State (B. viii. c. 6, sections 22 arid 23. Gro. B. iii. c. 9 and 16. See also The Att.-

Gen. v. Weeden (Parker’s Rep. 267), where i t was determined that choses in action

belonging to an enemy are forfeited to the Crown). In modern times the same

right has been recognized. Ryves v. The Duke of Wellington (9 Beav. 579) was a

case in which a legatee filed a Bill against the executor of George the Fourth, claiming

under the Will of George the Third, with respect to a bequest made by that Monarch

of his private property, and the Court of Chancery repu-[524]-diated the jurisdiction

of the Court on the sole ground, that the Will had not been proved in the Prerogative

Court. The cases relating to the exemption of a Governor of a Colony, relied upon

by the Appellant, do not apply. Cameron v. Kyte (3 Knapp’s P.C. Cases, 332) was

confined to the single point of the power of the Governor of a Colony, and it was held

to be fettered by the terms of the Governor’s commission from the Crown. H3Z v.

Bigge (3 Moore’s P.C. Cases, 465) is in our favour, as it determined that the Civil

Court in the Colony had jurisdiction to entertain an action of debt brought against

the Governor while in office in the Colony. CumpbeTI v. Hall (Cowp. 204) was an

action brought against an officer of the Government in Grenada, for the purpose of

trying the question whether the King, having promised the inhabitants of Grenada

a local Legislature, and having by his commission to the Governor authorized the

convocation of an Assembly, could afterwards of his own accord impose taxes. Lastly.

The case of The East Indoh Company v. Syed Ally [7 Moo. Ind. App, 5551 is distin-

guishable from the present. The resumption of the Jaghire by the Company, as the

representative of the Crown, was under the authority of a Treaty made by them in

that character with a native Prince. They had, under the Treaty, the same power

as the former Nawabs. The resumption related to the revenue, and, being a matter

of State policy, the Supreme Court was properly held to have had no jurisdiction.

Sir Hugh Cairns, Q.C., in reply.-The Respondent endeavours to support the

decree appealed from, upon grounds which a re antagonistic [525] to those relied

upon in the judgment of the Court below. It is now urged that the East India

Company are mere traders, who have arrogated to themeslvas the rights of SOV+

reignty, and that their assumption was a mockery of the rights of the Crown. The

argument on the other side goes to this extent, that the East India Company, as a

corporation, have certain powers emanating from the Sovereign delegated to them,

but that the act complained of is ultra wires the East India Company; as the Sove

reign power is only vested in the Governor-General of India. Now, the Court below

treats the proceedings as being within the authority of the East India Company,

but denies what has been done by Mr. Forbes with respect to the alleged private

405

VI1 MOORE IND. APP., 626

propeity to be an act of State. This argument proves too much, as everything which

the East India Conipany did would be wrong; the annexation of the Raj, the seizure

of the public property, which are not complained of, would also be wrongful.

Nothing, however, can be more fallacious than this argument, as a t the time when the

acts in question took place, nothing could be done in India in the shape of Govern-

ment, but through the East India Company, and the Court of Directors under the

supervision of the Board of Control. Supposing, for the sake of the argument, it was

conceded, that it is in the Governor-General in Council that the Sovereign delegated

power exists, we still have then his authoritative sanction, and confirinat'ion of all

the proceedings taken by Mr. Forbes. Hut the true position of the Government of

India is this: The East India Company have power given them by Charters and

Acts of Parliament for the Government of India, and they delegate those powers to

the Goveruor-General as [526] executive in India. The Statute, 21st Geo. III., C.

63, was passed in consequence of the exorbitant exercise of power claimed by the

Chief Justice, Sir Elijah Impey, and that Statute not only exempts the Governor-

General from responsibility for anything he may do, but any one acting under his

instructions who shall plead such instructions in a suit or action. Here the Governor-

General has sanctioned what Mr. Forbes has done, and it must, therefore, be treated

as his act. The principle of legislation as to the Governor-General in India is this :

Anterior to the creation of tha t office, o r any officer in India as the executive

Governor of India, the East India Company, as the executive Government upon +he

spot, had Sovereign powers conferred on them from the Crown, by Charters and by

Acts of Parliament; and, as they could not delegate those powers upon ordinary

principles of law to any one else, i t became necessary to give large powers to an

executive upon the spot, and that was done by parliamentary authority. The first

Act creating the Governor-General was the 13th Geo. III., c. 63, and the Iireanible

shows the evil it intended to remedy in the constitution of the governing body of the

East India Company at home, and the imperfection of the executive Goveriimeiit in

lndia : the 7th and 8th sections appoint a Governor-General, and define his powers.

The Statute relied upon by the Respondeiit, the 53rd Geo. III., c. 155, sec. 123,

obviously contemplates an act which cannot be considered an act of State, done as

a Sovereign power, but as traders, and one which the East India Company might be

sued for, Gibson v. The East India Company (5 Birlgh. N.C. 262). The Statute, 3rd

and 4th Will. IV., c. 85, puts this matter still [527] clearer; that Statute took away

the exclusive trading rights of the Company, and left them their Sovereign rights

only for a limited period. Sovereign powers have, undoubtedly, been conferred

upon the East India Company of levying war or making peace, and making Treaties.

These powers are shown in the case of The Nabob of Arcot v. The East India Company

(4 Bro. C.C. ISO), where it was decided that the particular acts the Nawab complained

of were acts of public policy and State, and that the Court of Chancery had no juris-

diction to take cognizance of those acta. The East I d & Company v. Sycd Ally [7

Moo. Ind. App. 5551 further illustrates this, and shows that the Sovereign power iu

the Carnatic has become vested in the East India Company. If a Treaty was made

between this country and France, a complaint as to the mode in which it was carried

into effect could not be entertained in a Municipal Court. The Respondent argues,

that it has not been pleaded that what was done by Mr. Forbes was an act of State,

and that the defence set up by the answer is, that the East India Company took the

Raj and property by succession. Such is not the fact: the answer clearly treats it

as an Act of State, and negatives such assumption that the seizure was a succession

at law.

No distinction exists between public and private property of an absolute Sove-

reign. The Advocate-GeiLeraJ of Bombay P. Am

is conclusive upon that point. The argument by analogy to Sovereigns in this

country who have made Wills and disposed of their private property does not apply,

as it is not the case of an absolute Sovereign, like the Rajah of Tanjore, but of

Sovereigns whose powers by the constitution are limited. In this country the C528-J

hereditarv revenues of the Crown have been made over by Act of Parliament to the

country, in consideration of a civil list during the life of the Sovereign ; and tlle

39th and 40th Geo. III., c. 88, gave His Majesty, his heirs and successors, full power

of disposition by deed, or Will, of certain real and personal property, a t the same

406

SECRETARY OF STATE IN COUNCIL OF INDIA

‘U. KAMACHEE ROYE SAHABA [1859] VI1 MOORE IND. APP., 629

time subjecting the private property to the payment of private debts contracted

during the Sovereign’s lifetime. There is no allegation or evidence that there is

a custom in this Raj, or by the Hindoo Law, that upon the death of an absolute

Sovereign, no disposition being made by him during his lifetime, there could be a

division made among his family of a certain kind of property. Another error

in the decree is, that it assumes, without proof, that there was private property of

the deceased Rajah.

The case stood over for coneideration.

Judgment was now delivered by

The Right Hon. Lord Kingsdown (July 27, 1859).-This is an appeal from a

decree of the equity side of the Supreme Court of Judicature a t Madras, by which it

was declared that the Respondent, the Plaintiff in the suit below, as the eldest widow

of Sevajee, late Rajah of Tanjore, who had died intestate, was entitled to inherit

and possess, as his heir and legal representative, his private and particular estate

and effects, real and personal, left by him a t the time of his death, subject to the

payment and satisfaction thereout of the present debts, if any, of Sevajee, and

to any legal claims and demands that might exist against such private and particular

estate and effects; and the Court declared that the Defendants, the East [629] India

Company, were trustees for the Plaintiff for and in respect of the private and

particular estate and effects, real and personal, left by Sevajee a t the time of his

death, and possessed by them, their officers, servants, and agents, as in the Bill

mentioned. The decree also proceeded to direct various accounts and inquiries

founded upon these declarations.

In the very able argument addressed to us a t the Bar, many objections were

made by the Appellant’s Counsel to this decree ; but the main point taken, and that

on which their Lordships think that the case must be decided, was this, that the

East India Company, as trustees for the Crown, and under certain restrictions, are

empowered to act as a Sovereign State in transactions with other Sovereign States

in India; that the Rajah of Tanjore was an independent Sovereign in India; that

on his death, in the year 1855, the East India Company, in the exercise of their

Sovereign power, thought fit, from motives of State, to seize the Raj of Tanjore

and the whole of the property the subject of this suit, and did seize it accordingly ;

and that over an act so done, whether rightfully or wrongfully, no Municipal Court

has any jurisdiction.

The general principle of law wa8 not, as indeed it could not, with any colour of

reason be disputed. The transactions of independent States between each other are

governed by other laws than those which Municipal Courts administer : such Courts

have neither the means of deciding what is right, nor the power of enforcing any

decision which they may make.

But it was contended on the par t of the Respondent, that this case did not fall

within the principle, for the following reasons :-

[E301 First. Because, as it was said, the East India Company did not stand in the

position of an independent Sovereign; that such powers of Sovereignty as were

exercised on behalf of the Company were vested, not in the Company, but in the

Governor-General and Council, who are protected by legislative enactment8 for

what they may do in that character. Secondly, that the seizure in this case did not

take place by the exercise of a Sovereign powzr against another independent power ;

but was a mere succession, by an asserted legal title, to property alleged to have

lapsed to the Company. And, thirdly, that there is a distinction between the

public and private property of the Rajah, and that the Company never intended

to exercise their Sovereign powers a8 to the latter, whatever they might do with

respect to the former ; that the Company, therefore, are in possession of property by

the unauthorized act of their officers, for which no protection can be claimed on the

grounds which would protect the public property from the jurisdiction of the

Court.

On the first point their Lordships are unable to discover any room for doubt.

The careful and able review of the several Charters and Acts of Parliament bearing

upon the subject which they had the advantage of hearing at the Bar, has satisfied

them that the law, as it stood in the year 1839, is accurately stated in the following

407

VI1 MOORE IND. APP.. 631 SECRETARY OF STATE IN COUNCIL OF INDIA

passage in the judgment of Chief Justice Tindal in case of Gibson v. The East India

Company (5 Bingh. N.C. 273), in which, after referring to various legislative enact-

ments, he observes that from these-“ It is manifest that the East India Company

have been invested with powers and privileges of a twofold nature, perfectly distinct

from each other ; [531] namely, powers to carry on trade as merchants, and (subject

only to the prerogative of the Crown, to be exercised by the Board of Commissioners

for the affairs of India), power to acquire and retain and govern territory, to raise

and maintain armed forces by sea and land, and to make peace or war with the

Native power8 of India.”

That acts done in the execution of these Sovereign powers were not subject to

the control of the Municipal Courts, either of India or Great Britain, was sufficiently

established by the cases of Z’Jie Nabob of Arcot v. Th,e East India Company, in the

Court of Chancery, in the year 1793; and The East India Company v. Syed Ally

[ 7 Moo. Ind. App. 5581, before the Privy Council in 1827.

The subsequent Statute, 3rd and 4th Will. IV., c. 85, in no degree diminishes the

authority of the East India Company to exercise, on behalf of the Crown of Great

Britain, and subject to the control thereby provided, these delegated powers of

Sovereignty.

The next question is, what is the real character of the act done in this case?

Was i t a seizure by arbitrary power on behalf of the Crown of Great Britain, of the

dorninioiis and property of a neighbouring State, an act not affecting to justify

itself on grounds of Municipal law? or was it, in whole or in part, a possession takeir

by the Crown under colour of legal title of the property of the late Rajah of

Tanjore, in trust for those who, by law, niight be entitled to it on the death of the

last possessor? If i t were the latter, the defence set up, of course, has no foundation.

It is entremely difficult to discover in these papers any ground of legal right,

on the part of the East India Company, or of the Crown of Great Britain, to the

possession of this Raj, or of any part of the pro-[532]-perty of the Rajah on his

death ; and, indeed, the seizure ”was denounced by the Attorney-General (who, from

circumstances expiained to us a t the hearing, appeared as Counsel for the Respon-

dent, and not in his official character for the Appellant), a8 a most violent and

1.1 justifiable measure. The Rajah was an independent Sovereign of territories

undoubtedly small, and bound by Treaties to a powerful neighbour, which left him,

practically, little power of free action ; but he did not hold his territory, such as i t

was, as a fief of the British Crown, or of the East India Company; nor does there

appear to have been any pretence for claiming it, on the death of the Rajah without

a son, by any legal title either as an escheat, or as bona v a c a d a . It should seem,

therefore, that the possession could hardly have been taken upon any such grounds.

Accordingly, the Defendants in their answer, allege that on the death of the

late Rajah, “ i t was determined, as an act of State, by the Defendants and the

British Government” that the Raj and dignity of Rajah of Tanjore was extinct,

and that the State of Tanjore had thereupon lapsed to the Defendants in trust for

Her Majesty; and it was thereupon also determined by the Defendants, as an act of

State and Government, that the whole dominions and Sovereignty of the State of

Tanjore, together with the property belonging thereto, should be assumed by the

Defendants in trust for Her Majesty the Queen, and should become part of the

British territories and dominions in India, in trust for Her Majesty. They then

allege that the whole of the property which they have seized has been seized by

virtue of their Soveieign rights on behalf of Her Majesty, and insist that [533] the

Court has no jurisdiction to inquire into the circumstances of the seizure, or its

justice with respect to theawhole or any part of the seizure.

The facts, as they appear in the evidence, are these:-In Pu’ovember, 1855, the

Rajah died. The Government of Madras, within which Presidency Tanjore is

situated, communicated the fact of his death to the Governor-General of India, and

this fact, with the views of the Government of Madras, and of the Governor-General

in Council as to the steps which ought to be taken upon his death in regard to his

dominion and property, was communicated to the Court of Directors in England.

The letters in which these views were communicated are not found amongst the

papers before us ; but it appears from the letter of the Court of Directors, dated the

16th of April, 1556, that these Governments were of opinion, that the dignity of

408

U. KAMACHEE BOYE SAHABA [1859] VI1 HOORE IND. APP., 634

Rajah of Tanjore was extinct, and that they had taken possession, or were about to

take possession, of the dominions and property of the Rajah, and intended to deal

with them in such manner as appeared to them to be just.

The answer of the East India Company is to the following effect :-After advert-

ing to a suggestion which had been made, to recognize one of the daughters of the

deceased Rajah as his successor, they say:--“ 3. By no law or usage, however, has

the daughter of a Hindoo Rajah any right of succession to the Raj, and it is entirely

out of the question that we should create such a right for the sole purpose of per-

petuating a titular Principality a t a great cost t o the public revenue. 4. We agree

in the unanimous opinion of your Government, and the Government of Madras,

that the dignity of Rajah of Tanjore is extinct. 5. [534] It only remains to express

our cordial approbation of the intentions you express of treating the widow, daugh-

ters, and dependants of the late Rajah with kindness and liberality. R e shall,

doubtless, receive, a t en early period, from you or from the Madras Government, a

report of the arrangements made for carrying these intentions into effect. 6. The

Resident was very properly directed to continue all existing allowances until he

could report fully on them to Government ; but to inform the recipients that Gcvern-

inent were not to be ccnsidered as pledged to their continuance.”

It seems obvious from this letter that the East India Company intended to take

possession of the dominions and property of the Rajah, as absslute lords and owners

of it, and to treat any claims upon i t of his widows, and relations, and dependants,

not as rights to be dealt with upon legal principles, but as appeals to the considera-

tion and liberality of the Company.

The further proceedings were of the same character.

On the 10th of J’uly, 1856, the Government of Madras wrote to the Governor-

General in Council, and after giving an account of different portions of the property

of the late Rajah, and pointing out various difficulties and questions which iuight

arise out of it, they suggested that some person should be specially sent as a Com-

missioner to Tanjore, who should be “ directed to investigate and report upon the

various important questions above enumerated, and any others that may hereafter

occur, to this Goveinment, ab demanding inquiry in connection with the general

subject.”

By a letter of the 8th of September, 1856, the [535] Governor-General in Council

approves of the suggestion of appointing a Commissioner, and of the selection of

Mr. Forbes for the purpose. He points out cer-cain matters; amongst others, the

abolition of the Rajah’s Courts, which he leaves to the disposal of the Govcriiriient of

Madras. “ But the mode in which it may be proposed to deal with the Rajah‘s debts,

and with the State jewels, library, and armoury. should be reported to the Governor

of India, before any measures are taken, as also the apportionment of pensions and

gratuities to the fzmily and dependants of the Rajah. Upon the last point it will

be necessary to lay down rules by which the Government of Madras should be

guided.”

Mr. Forbes was accordingly appointed to discharge this duty, and written instruc-

tions for that purpose were given to him by the Government of Madras, on the 25th

of September, 1856. He was directed not to make any general announcement of the

orders of the Government of India; but to possess the Durbar generally with the

purport of those instructions, informing them that i t had been decided by the home

authorities that the Raj of Tanjore had become extinct, but that all liberality would

ae shown to the members of the family, servants, and dependants. He was also,

should such caution appear called for, to warn them of the consequences that would

certainly ensue frcm any factious opposition to the policy that had been decided on

in the case of the Tanjore Raj.

In what manner Mr. Forbes executed the powers conferred upon him, appears in

his evidence and by the documents proved in the cause.

On the 29th of September, 1856, he caused an order to be made on the Sirkele,

an officer of the late Rajah, directing him to make out a list of the property [636]

belonging to the Raj. No attention having been paid to this order, Mr. Forbes soon

afterwards went himself to Tanjore, and took up his abode at the Residency, and on

the 17th of October, 1856, sent a letter to the Sirkele, in which he informs him of

his intention to take possession of the public property of the State for the British

409

VI1 MOORE IND. APP., 637 SECRETARY OF STATE I N COUNCIL Ob’ INDIA

Government, and to place it in safe keeping. He informs the Sirkele that he

intends to take charge of the public property within the fort, early the next morning,

and to place it in charge of a detachment of the British troops, and he requests

that the Sirkde will meet him a t the east gate of the fort at half-past 5 o’clock, in

company with the Murdeshuns of the Tashackdera, the arsenal, and the various

other departments.

On the following morning, accordingly, taking advantage, as he says, of the

presence of the 25th Regiment of Infantry, he goes to the palace. He takes possessio11

of the property which is found in it. He has it placed in rooms, sealed with his

seal, and stations sentries a t the different doors.

It is clear from Mr. Forbes’s report to the Madras Government of what took

place on the occasion, that though no resistance was offered by the family of the

Rajah, or the inhabitants of the fort, to the seizure of the Raj, and of the palace and

property of the Rajah, it was regarded on both sides as a mere act of power not

resisted, because resistance would have been vain. “ Much sorrow,” he says, “ was

expressed, and much grief was shown; but all submitted a t once to the authority

of the Government, and placed themselves in its hands.”

It is by these acts of Mr. Forbes that the East India Company is in possession

of whatever property it holds now claimed by the Respondent. The acts of [53a

Mr. Forbes were approved by the Governor of Madras by a minute, dated the 21st

of October, 1856; and they are adopted and ratified by the East India Company

in their answer in this suit.

What property of the Rajah was within the authority given to Mr. Forbes, and

what may be the consequence of any seizure in excess of that authority, we will

consider under the next head; but that the seizure was an exercise of Sovereign

power effected a t the arbitrary discretion of the Company, by the aid of military

force, can hardly admit of doubt.

But then, it is rontended, that there is a distinction bctwperi the public and

private property of a Hindoo Sovereign, and that although during his life, if he

be an absolute Monarch, he may dispose of all alike, yet on his death some portions

of his property, termed his private property, will go to one set of heirs, and the

Raj with that portion of the property which itj called public, will go to the succeed-

ing Rajah.

It is very probable that this may be so ; the general rule of Hindoo inheritance

is partibility, the succession of one heir, a8 in the case of a Raj, is the exception.

But assuming this, if the Company, in the exercise of their Sovereign power, have

thought fit to seize the whole property of the late Rajah, private as well as public,

does that circumstance give any jurisdiction over their acts to the Court a t Madras?

If the Court cannot inquire into the act a t all because it is an act of State, how can

it inquire into any part of it, or afford relief on the ground that the Sovereign

power has been exercised to an extent which Municipal law will not sanction 1

It is said, however, that it was not the intention of [5%] the East India Company

that the private property of the Rajah should be the subject of seizure, and i t is

observed in the judgment of the Court below, that the letter of Mr. Forbes to the

Sirkele of the 17th of October, 1856, shows that he knew there was private property

amongst that about to be seized ; and that he expressly states that all property to

which a claim can be established shall be restored to its owner.

But i t appears to their Lordships that in this passage the Chief Justice has not

quite accurately collected the meaning of Mr. Forbes’s letter ; the distinction there

made between private and public property seems to apply, not to property of the

Rajah, but to property which might be seized by the officers as in the possession

of, or apparently belonging to, the Rajah, while in fact it belonged to, or was subject

to, tlie claims of other persons. All claims which might be advanced to any part

of the property seized, by institutions or individuals, were to be carefully in-

vestigated, and all to which a claim might be substantiated would be restored to

the owner.

But, whatever may be the meaning of this letter, it affords no argument in

favour of the judgment of the Court; but rather an argument against it. It

shows that the Government intended to seize all the property which actually was

seized, whether public or private, subject to an assurance that all which, upon in-

41 0

2). KAMACHEE BOPE SAHABA [ 18591 VII MOORE IND. APP., 039

vestigation, should be found to have been improperly seized, would be restored.

But, even with respect to property not belonging to the Rajah, i t is difficult to

suppose that the Government intended t o give a legal right of redress to those who

might think themselves wronged, and to submit the conduct of their officers, in the

execution of a political measure, to the judg-[539]-ment of a legal tribunal. They

intended only to declare the course which a sense of justice and humanity would

induce them to adopt.

With respect to the property of the Rajah, whether public or private, it is clear

that the Government intended to seize the whole, for the purposes which they had

in view required the application of the whole. They declared their intention to

make provision for the payment of his debts, for the proper maintenance of his

widowg, his daughters, his relations and dependants; but they intended to do this

according to their own notims (of what was just and reasonable, and not ac-

cording to any rules of law to be enforced against them by their own Courts. In

the letter already referred to of the 8th of September, 1856, from the Secretary of

the Government in India to the Government of Madras, it is distinctly stated:--

“ The relations whom the Rajah of Tanjore has left are in this position : they are

without any rights of inheritance;” and it then proceeds to enumerate those

relations who are thus without any rights of inheritance, and mentions as the first

amongst them the Queen Dowager, the Respondent in this appeal ; and it proceeds

to speak of all those relations as claimants upon theponsideration of the Govern-

ment, and to describe in what manner those claims are td be met. How is it

possible, in the face of this declaration, to hold that it was the intention of the

Government to recognize the right of inheritance of the Respondent, and to exclude

from seizure, and to subject to process of law, any portion of the property of the

deceased Sovereign? If there had been any doubt upon the original intention

of the Government, it has clearly ratified and adopted the acts of its agent, which

[540] according to the principle of the decision in Buron v. Denmain, is equivalent

to a previous authority.

The result, in their Lordships’ opinion, is, that the property now claimed by

the Respondent has been seized by the British Government, acting as a Sovereign

power, through its delegate the East India Company; and that the act so done,

with its consequences, is an act of State over which the Supreme Court of Madras has

no jurisdiction.

Of the propriety or justice of that act, neither the Court below nor the

Judicial Committee have the means of forming, or the right of expressing, if they

had formed, any opinion. It may have been just or unjust, politic or impolitic,

beneficial or injurious, taken as a whole, to those whose interests are affected.

These are considerations into which their Lordships cannot enter. It is sufficient

to say that, even if a wrong has been done, it is a wrong for which no Municipal

Court of justice can afford a remedy.

They must advise Her Majesty to reverse the decree complained of, and to dismiss

the Plaintiff’s Bill; but they will recommend that no costs should be given of the

proceedings either in the Court below or in this appeal.

The following proceedings took place in India upon the receipt of the above

judgment, as appeared recorded in the minute by the Honourable the President,

Sir Charles E. Trevelyan, dated the 8th of November, 1859.

“ 1. The Lords of the Committee of the Privy Council, conclude their judgment,

on the appeal of The East India Company J. Kamachee Boye Sahaba as follows :--

‘ The result, in their Lordships’ [541] opinion, is, that the property now claimed

by the Respondent has been seized by the British Government, acting as a Sovereign

power, through its delegate, the East India Company; and that the act SO done,

with ita consequences, is an act of State over which the Supreme Court of Madras

has no jurisdiction.

“‘Of the propriety or justice of that act, neither the Court below nor the

Judicial Committee have the means of forming, or the right of expressing, i f they had

formed, any opinion. It may have been just or unjust, politic or impolitic, bene-

ficial or injurious, taken as a whole, to those whose interests are affected. These

are considerations into which their Lordships cannot enter., It is sufficient tQ

41 1

VII M a a ~ E IND. BPP., M ~ ~ C ~ E T ~ ~ Y OF STATE 1N COUNCIL OF INDIA

say that, even if a wrong has been done, it i s a wrong for which no ~ u n i c i p a ~

Court of justice can aiford a remedy^

'' 2. While, on the one hand, the ~ 3 v e r n ~ e n t i s left, by this decision, free to take

whatever course i t considers best j on the other, a serious responsibil~ty has beexi east

upon it. The ~ v e r n m e n t i s declared to be sole arbiter, unrestrained by the

ordinary obligations of Municipal law ; and it is, therefore, peculiarly incumbent

upon us to show that we are prepared to act in the spirit of those ~rinG~ples of

equity and liberaIity which a re the foundation of all law.

" 3. The original proceeding by which the Raj of Tanjore was declared to have

escheated to the ~ o v e r n ~ e n t , of India on the death of the late Raja has often been

described as an act of spoliation. 1 have always

been opposed to what has of late gears been c a ~ ~ e d ' The policy of annexation.' It

has always appeared to me that we~l-const~tuted Native States a re an essential

elenient, of the fFt421 An~Io~Indian Empire; and this view has been amply con-

firmed by the experience acquired during the late convul~ion~ But Tanjore was not

a Native State. The Rajah had neither people nor territory beyond the walIs of his

palace. Ne had no duties of Government to perform. Be and his numerous

d~pendents wore a heavy charge upon the ~ n d u s t r ~ o u s po~*tion of the p o p u ~ a t i o ~ ~ ~

without r e ~ d e r i n ~ any return. So far as any political effect was produced, it was

decidedly injurious, because the arrangement kept alive pretensions which circum-

stances might a t any time quicken into open hostility, as lately happened a t Delhi.

The eirtire c o m n ~ u n i t ~ is interested in the growth of a feeling of foyalty to the

of the Queen's own subjects in Rer own d o ~ ~ n i o n ~ . It has also been proyed iy

numerous examples, that there i s no condition so demoralising as that of a society

w ~ ~ c h , wlAe it i s eIevated above public opinion, has no appropriate duties to

enea e in.

The only

c ~ a i n ~ a n t is his senior surv~ving widow. &fy first twelve years of public service

were passed in the Indian Diplomatic ~ e p a r t ~ e n t , and I have as e&nsive a know

ledge of the customs and practice of Native ~ h i e f s as most people. L mention this

its my , jus t~~cat ion for offering a confident o p ~ n ~ o n , that the ~uccession of females

forms no part of the constitution of Native States or ~h ie~sh ips . It may occasion-

ally have taken place, as in the instance of Bolkar's widow, Arhalaya Bhai, and

the Regum Sumroo, but the special nature of the oircumstances in those cases, shows

that it was a deviation from a n establ~shed rule. No w e ~ l - ~ n f o ~ ~ e d and ~ m - ~ ~ 3 ~ "

partial native would ~ a ~ n ~ a ~ n the right of a~ccession of a female to a ~ i n d o o

Raj.

" 5. I, therefore, consider that, tphether regard be had to the customs of tlie

country or to the public good, this i s a true escheat. The go-called Tanjore Raj

has lapsed to the Government of India. That Government stands in the place of the

late Rajah. While we are bound to fulfil his just o ~ ~ i g a t ~ o n s , it is our duty to

secure, on behalf of the public, ~ v e r ~ h i n ~ belonging to the Raj nor required for

that purpose.

" 6. A. great deal of discussio~ has taken place about what ought to be considered

public or private property. This seems to MB to proceed upon a m ~ s t a k e ~ view

of the nature of the case. Every-

thing which belonged to the late Rajah a t the time of his death, therefore, now

belongs, by right, to the Government. If, previously to his decease, he had made

a b o ~ ~ a $de a~ienation of any property acqu~red out of his savings, that property

has passe@ into tho condit~on of private property. Otherwise, all that he left

would have descended to his heir, if he had had one; and not having had onet

it has ~ a p ~ e d to the paramount authosity r e p r ~ e n t i ~ g the gen5ral ~ u ~ l ~ c . We have

to pay the late Rajah's debts, and to provide for his nui~erous relations and

dependants a8 ~~~~~~~ haeres; and we are entitled, in the same character, to all

that remained of his property. It would not have been possible for any one except.

the successor to the Raj to have undertaken these ob~igations, To any other, th*

Ioas would have greatly exceeded the advantage. The view taken in this p a r a g r a ~ ~

i s the same which i s ~ ~ a i n ~ a ~ n e d by the A d v o c a t ~ ~ e n e r a l s a t ~ a l c u t t a and Madras.

412

I cannot see it in that light.

~ o v e r e ~ ~ n , and there ought to be nothing to interfere with the u*div~ded agea' c~lanct?

a'':. The Rajah had died leaving no ~ e g i t ~ m a ~ or adopted son.

The Raj has merged in the Goverazmeat of India.

v. KAMBCHEE BOYE SAHABA [ 18 5 91 VII MOORE IND. APP., 644

[544] I ' 7. Assuming the correctness of these principles, I will consider the several

points requiring decision.

" First, the late Rajah's debts must be ascertained with a view to their early

liquidation. Experience shows that more than ordinary care should be taken, in

such cases, in order to shut out fictitious claims.

"Secondly, the Supreme Government laid down as long ago as the 8th of

September, 1856, rules for the grant of pensions to the family and dependants. These

are divided into three classes: viz., first, the immediate members of the Rajah's

family ; secondly, his relations ; and thirdly, his servants and pensioners. I n the

case of the third class, these rules have already been acted on, and the pensions

awarded have for some time been paid. The pensions of the chief members of the

family only are heritable. I n the case of a man, they may pass for two generations,

a moiety lapsing on each succession ; while, in the case of a woman, they may descend

with the same deduction for one generation only. The case of those belonging to

the second class, who are not nearly allied to the late Rajah, was considered to be

fully met by the grant of a pension for a single life, which may be commuted for a

gratuity.

"8. Mr. Phillips, the late Commissioner of Tanjore, proposed to place 103

persons in the first class, as follows:-' 1 The mother of the late Rajah. 2. His

senior widow. 3. His fifteen junior widows. 4. His daughter. 5. His two elder

sisters. 6. His niece, her husband and children. 7. His son-in-law. 8. Three

nephews and their families. 9. The late Rajah Sevajee's seraglio, in number 59

persons; including, apparently, 6 natural sons and 11 natural daughters of the

Rajah. 11. The descendants,

four in [545] number, of Tukuji Sahib, fourth Rajah of Tanjore.'

" 9. As fa r as the eighth head, no objection can be made; but I cannot think

that the 59 persons belonging to the late Rajah's seraglio, or the persons who claim

through former Rajahs, are entitled to heritable pensions. This advantage may,

however, be conceded to the natural sons and daughters of the late Rajah.

" 10. Not long before his death, the late Rajah married sixteen wives in one

day. These ladies and their families came from the Deccan; and every facility

should be given, by commuting their pensions, or making the payments elsewhere,

for their returning to their original homes.

No establisli-

ment should be kept up for any one; and the old system of procuring supplies

through the Collector should come to an end. Any additional allowance should be

made which may be required to compensate for the loss of these advantages; and the

agent should continue to protect the interests of the ladies and assist them by his

advice.

" 12. Sukharam, the late Rajah's son-in-law, ought not, I think, to be subjected

to any deduction of his stipend, on account of his inheriting his late wife's settle-

ment; and the Rajah's only surviving legitimate daughter should be allowed an

additional Rs. 6000 a year on her marriage, as proposed by Mr. Phillips. No

difference should be made between those who supported and those who stood aloof

from the senior widow in the late litigation.

'' 13. The contents of the library, armoury, and jewel rooms should be care-

fully examined ; and while such articles as were exclusively State property should

[5&] be held a t the disposal of the Government, the most liberal consideration

should be given to any claim that may be made on behalf of the Ranee or others

connected with the late Rajah.

The bulk was retained

by the Rajah, contrary to the provisions of the Treaty by which the Province was

ceded to the East India Company in 1779 ; but, according to my view, as expressed

in the early par t of this minute, it matters not in what manner property came intu

the possession of the Rajah. Whatever actually belonged to the Rajah a t the time

of his death is included in the escheat, and now belongs to the Government.

" 15. Fourteen villages are claimed on behalf of the mother of the late Rajah

as having been granted to her by her late husband, Rajah Sarabhoji; such a grant

is undoubtedly extant, but if her possession was ever more than nominal, it

altogether ceased in 1827, after which the Rajah dealt with the property entirely

413

10. The Rajah Sarabhoji's seraglio, 1 8 persons.

" 11. The pensions should be in full of every personal claim.

(' 14. The only remaining point is the landed property.

VII MOORE IND. APP., 547 SECY. OF STATE OF INDIA 'U. K. B. SAHARA [ 18 5 91

as liis own. Our Advocate-General is, therefore, rightly of opinion that these

villages must be considered as belonging to the Raj. Mr. Phillips, while he admits

that the Dowager Ranee has no claim, proposes that she should have the enjoy-

ment of these villages during the remainder of her life. I do not concur in this.

The aged lady should have a pension allowed her, sufficiently liberal to enable her

to spend the remainder of her days with all possible ease and comfort ; but more than

this is not required; and it is not desirable that she should have the management

of villages. There are three villages, the Mirasi rights in which were originally

purchased by the widow of Tulasiji, the adoptive father of Sarabhoji. They de-

wended to the late mother of the Rajah's [fi47] only surviving daughter, to whom

they should now be made over, together with the arrears which have accumulated

since her father's death. Alienations from the landed property, which are of the

nature of Enam, should be dealt with under the Enam rules.

" 16. If my colleagues concur in these views, I propose that Mr. Phillips, who is

well acquainted with the whole subject, should be specially appointed as Com-

missioner, to give effect to the arrangements that may be finally approved by the

Supreme Government.

'' 17. There is no reason to doubt the correctness of the data upon which Mr.

Phillips calculated the pensions proposed by him for the several classes of claimants;

but if my views are adopted, some modification will be required in particular cases ;

and if Mr. Phillips should think, on the review he will now have to take of the

subject, that his first proposals should in any other instance be amended, we shall

be ready to reconsider them with him.-C. E. Trevelyan."

" Minute by the Honourable the President, dated 23rd of November, 1859.

" On the first point, i t must be observed, that the villages were not only managed,

but their proceeds were appropriated by the Rajah. In short, they were treated

after 1827, entirely aa his own property. This has been reported by our Com-

missioner, and has been argued upon as a fact by the Law Officers.

(' As regards the objection to Mr. Phillips on the ground of his connection with

the Sudder Court, this case has been expressly declared by the Privy Council to

be beyond the limits of any Municipal jurisdiction.

" C. E. Trevelyan."

" Gindi, 23rd November, 1859."

/Mews' Dig. tit. INTERNATIONAL LAW, I. SOVEREIGN STATES, ETC., a. ; tit.

PRINCIPAL AND AGENT, I. A. 2. Ratification. S.C. 13 Moo. P.C. 22; 7

W.R. 722. See Doss v. Secretary of State f o r India, 1875, L.R. 19 Eq. 534;

Gramt v. Secretary of State f o i In&,, 1877, 2 C.P.D. 455; Miisgrave v.

Pulido, 1879, 5 A.C. 1 1 2 ; Cook v. Sprigg (1899) A.C. 572; Forester v. Secretary

of State for India, 1871-72, L.R. Ind. App. Supp. 10; Rajah Salig Ram v.

Secretary of State f o r India, 1872, L.R. Ind. App. Sup. Vol. 119; Sirdar

Bhagwan Singh v. Secretary of State for India, 1874, L.R. 2 Ind. App. 38;

Mathusri Umanabar Boyi Saiba v. Mathmri Deepamba Boyi Saiba, 1896, L.R. 23

Ind. App. 28; Report of Transvaal Concessions Commispion, 1901, Cd. 623, p.

7.1

41 4