Kunwarlalsingh Indrarajsingh v. Provincial Government

1. This judgment will govern Civil suit No. 2 of 1940 and civil Suit No. 1 of 1941. Both are cases brought by certain zamindars of this province to impugn the validity of the Central Provinces Revision of the Land Revenue of Estates Act, 1939 (C.P and Berar Act No. 1 of 1939).

2. The two plaintiffs, as I have said, are zamindars holding zamindari estates in this province. The plaintiff in civil Suit No. 2 of 1940 is Rao Bahadur Kunwarlal Singh and holds three estates known as Kamtha Wadad and Deori Kishori. These are held in zamindari rights and are among the zamindaries known as the Wainganga zamindaris. They are situate in the Bhandara district. The plaintiff in the other case, Civil suit No. 1 of 1941, is Bansha. He is the zamindar of Palasgarh and his zamindari (Palasgarh) is situate in the Chanda district. His status is a little higher than that of the other plaintiff and it is admitted that he is governed by what is known as the Chanda Patent, a document on which he relies. In each case the defendant is the Provincial Government of the Central; Provinces and Berar. The foundation of the argument in both cases is that the impugned Act (C.P and Berar Act No. 1 of 1939) falls foul of Section 299 of the Government of India Act, 1935, in that it compulsorily acquires “land” belonging to the plaintiffs for public purposes without providing for compensation. It was also contended in Civil Suit No. 2 of 1940, though not in the other, that the impugned Act was ultra vires because the matter does not fall within either the Provincial or the Concurrent lists in Sch. 7, Government of India Act, 1935. The cases accordingly turn upon the interpretation of the provisions of the Government of India Act, 1935, which Act it will be convenient to refer to hereafter as the Constitution Act. In my opinion a substantial question of law as to the interpretation of this Act arises in these two cases and it will be necessary for me to grant a certificate to that effect under Section 205(1) of the Constitution Act.

3. The question arises in this way. The zamindars in this Province, among them the two plaintiffs, are assessed periodically for “takoli.” Exactly what this takoli is a matter of dispute in civil Suit No. 2 of 1940, but both plaintiffs admit that they are liable to pay takoli. The plaintiffs were assessed at a certain figure in each zamindari (different in each case) when the settlement of their respective tracts was made. The assessment was offered to them under the provisions of the relevant Land Revenue Act and was accepted by them. These acceptances or kabuliyats have been filed and are not denied. They are, so far as the latest settlements in each case go, Exs. P-4, P-5 and P-6 and Ex. P-E. It is not denied that but for the impugned Act these are sums which the two plaintiffs would have to pay. The Provincial Legislature, however, intervened in 1989 and by the impugned Act raised the figures given in these kabuliyats. The result is that the takoli recoverable from the plaintiffs has been considerably increased in each case though it is still below the figure which would have been recoverable from them bad they been ordinary malguzars. The plaintiffs contend that this could not be done by the Provincial Legislature without providing for compensation and, as I have said, in one Base the plaintiff says it was wholly beyond its competence.

4. I think it will be convenient to deal first with such matters which are common to both cases. As I have said, both plaintiffs admit that they are liable to pay takoli. They also admit that Government is entitled to enhance this from time to time. But they contend that this can only be done in a particular way, that way not being by legislation, unless such Legislation provides for compensation, also that it can only be done by agreement, unless again there is provision for compensation. It is further contended that once there is an agreement the matter cannot be reopened at all by the executive during the period covered either directly or indirectly by the agreement, and by the Legislature, only if provision is made for compensation. These contentions form the subject-matter of issues 5 to 9, in Civil Suit No. 2 of 1940, and of issues 2 to 11 in civil Suit No. 1 of 1941.

5. The burden of showing that the impugned Act is ultra vires is on the plaintiffs. They contend, in so far as the argument is common, that Section 299(2) of the Constitution Act, prohibits any Provincial Legislature from making any law which authorizes the compulsory acquisition for public purposes of land unless the law provides for the payment of compensation. It is admitted that the law in question here makes no such provision. Therefore, if the impugned Act authorizes the compulsory acquisition of the plaintiffs' land, it is ultra vires. The only question is, does an enhancement of takoli amount to a compulsory acquisition of “land”? That depends upon the nature of takoli and upon the definition of “land.” So far as the latter is concerned, the plaintiffs rely on the definition given in Section 299(5) of the Constitution Act:

“In this section ‘land’ includes immovable property of every kind and any rights in or over such property.”

6. They contend that the right to takoli is a right to or in land and is itself “immovable 9 property.” It is conceded’ that the right to levy and take takoli is a right of the Provincial Government and not of the plaintiffs, but the plaintiffs contend that they have the right not to pay more than a certain sum till it is enhanced or altered at some future settlement. They contend that this right, even though it is a negative one not to pay more than a certain amount, is a right to or in “immovable property.”

7. They also put this in another way. They say that if their income from their estates is X + Y + Z, and if they have to pay Z as takoli, then they are left with X + Y. They have a right to this and it is a right to or in “immovable property.” If, however, the takoli is enhanced by Y, then they have to pay Y + Z and so are only left with X. They are thus deprived of their right to Y and this, according to them, is a right to or in “immovable property” within the meaning of that expression in S. 299(5).

8. “Immovable property” is not defined in the Constitution Act, and except for the definition of “land” in S. 299(5) there is no other clue to its meaning except in S. 299(3). The plaintiffs rely on this, while the defendant contends that the fact that the Legislature thought it necessary to include the words “including rights or privileges in respect of land revenue” in sub-s. (3), shows that those rights and privileges were not intended to be included either in the definition of “land” given in sub-s. (5) or in the word “land” used in sub-s. (2).

9. A great deal of learning was expended over the proper way to interpret a Constitution Act. It was contended, on the one hand (by the defendant), that the Act being an Act of the Imperial Parliament in England the expressions used in it must be construed in the sense in which English lawyers use them except in so far as it is otherwise provided in the Act. On the other hand, the plaintiffs argued that the expression “immovable property” is not ordinarily used in the English law, whereas it is familiar to lawyers in India and it is constantly used in Indian Acts as well as in judicial decisions. Therefore, they argue, one must assume that Parliament was familiar with these facts and in so far as it was applying the Constitution Act to India. It intended that the words we are considering should be used in the various senses in which they are understood in India. It was pointed out that sub-s. (5) says that “‘land’ includes immovable property of every kind” and it was argued that this shows that Parliament meant to include in the definition of “land” all the various and varying definitions of “immovable property” which have been given to that expression in India both by Acts of the Legislature as well as by judicial decisions. I think this contention is right.

10. Gwyer, C.J said in 1939 F.C.R 18 (’39) 26 A.I.R 1939 F.C 1 , 180 I.C 161 , %ILR 1939 KAR FC 6 , 1939 F.C.R 18 (F.C), In re the Central Provinces and Berar Soles of Motor Spirit and Lubricants Taxation Act, 1938 (Central Provinces and Berar Act No. 14 of 1938) at p. 53:

“I am entitled to look at the manner in which Indian legislation preceding the Constitution Act had been accustomed to provide for the collection of excise duties; for Parliament must surely be presumed to have had Indian legislative practice in mind and, unless the context otherwise clearly requires, not to have conferred a legislative power intended to be interpreted in a sense not understood by those to & whom the Act was to apply.”

11. So also the Privy Council said in (1933) A.C 156 (’33) 20 A.I.R 1933 P.C 16 , 143 I.C 91 , 1933 A.C 156 , 102 L.J.P.C 6 , 148 L.T 62 , 48 T.L.R 652 , 43 Ll.L Rep. 435 at page 165:

“When a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred the power.”

12. Similar observations were made by the Bombay High Court in I.L.R 1940 Bom. 58 (’40) 27 A.I.R 1940 Bom. 65 , 186 I.C 817 , I.L.R (1940) Bom. 58 , 42 Bom. L.R 10 (F.B) at pp. 77, 79 and by the High Court of Australia in 1 Common wealth L.R 7024 at page 715.

13. Then again, quite apart from Acts of the Legislature, the rule applies even when there is clear judicial interpretation of a word though, of course, in such a case the matter must not be carried too far, as for instance, when the definition occurs in some obscure unreported decision, and in any event the presumption then is perhaps not as strong as in the case of a Legislature. But subject to that qualification the principle applies even in the case of judicial decisions. Viscount Buckmaster said in the House of Lords in 1933 A.C 402 (1933) 1933 A.C 402 , 102 L.J.P.C 33 , 1933 S.C.L.T 338 , 38 Com. Cas. 279 , 149 L.T 169 , 77 S.J 215 , 49 T.L.R 391 , 45 Ll.L Rep. 199 at p. 411.

“It has long been a well-established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.’

14. And Lord Macmillan said at p. 446:

“The principle of the rule is that where the language of a statute has received judicial interpretation, and Parliament again employs the same language in a subsequent statute dealing with the same subject-matter, there is a presumption that Parliament intended that the language so used by it in the subsequent statute should be given the meaning which meantime has been judicially attributed to It. Parliament, in short, is to be presumed to have given statutory effect to the judicial interpretation so as to render it as binding on the Courts as if it had been expressly enacted in an interpretation section.”

15. The learned Law Lord, however, added the caution to which I have referred above.

16. The plaintiffs contend that the words “immovable property” or “interest in immovable property” have been defined by the Privy Council itself in 1 I.A 346 at pp. 52, 53 in a case relating, (according to the plaintiffs), to a levy of the kind in question here. It was contended that Parliament must have had in mind, or be deemed to have had in mind, this important decision when it said generally that “land” includes “every kind of immovable property.”

17. Authorities were also quoted to show that when the Legislature uses the word “includes” in a definition, the intention is to extend the scope of the definition and not to narrow it. I hardly think that requires authority. It seems fairly obvious to me, though of course the extension must not be carried beyond the matter included in the inclusion. The cases relied on are, 1941 F.C.R 12 (’41) 28 A.I.R 1941 F.C 72 , 194 I.C 357 , %ILR 1941 KAR FC 148 , 1941 F.C.R 12 (F.C), In re, The Hindu Women's Rights to Property Act at p. 38, 8 Cal. 5348 at p. 536 and 6 Bom. 5469 at p. 560.

18. I have little doubt on this question. I am clear that the expression must be construed in the light in which it is used in India and that what I have to decide here is whether this enhancement of the takoli has infringed any rights which the plaintiffs have to or in “immovable property” in the sense in which those words are understood in India when used with reference to matters of this kind.

19. Before dealing with this it will be necessary to set out what takoli is. As I have said, this is a matter of dispute. The plaintiff in Civil suit No. 2 of 1940 contended that it is not land revenue but is in the nature of a tribute exacted from persons who have, or at any rate who once had, a quasi sovereign status. His learned counsel conceded that the Crown has the right to demand and take such tribute and admitted that apart from engagements by which it has bound itself it could vary the figure as much as it pleased and enhance the amount to any extent. But he argued that is a prerogative of the Crown which has not been surrendered to the Legislature by the Constitution Act, and as the enhancement here was by the Legislature and not by some representative of the Crown, the legislation is ultra vires. I think it will be more convenient to deal with this argument at a later stage when I consider the contention raised by this plaintiff about his status.

20. Counsel in the other case did not go as far as this. He said that whatever the position of these zamindars may once have been, it is clear that their powers and privileges were gradually whittled away until now they are just ordinary British subjects. He said that, so far as he was concerned, it could be accepted that the nature of the levy made upon these zamindars changed as their status changed from time to time. When they were petty sovereigns, if that was ever the case, the levy would be a tribute taken by the paramount power from a feudatory. But the moment 1 they ceased to have that status and became ordinary British subjects amenable to the ordinary laws of the land, the levy turned at once into ordinary land revenue which ordinary British subjects holding land have to pay.

21. I agree that this is the true position. It would, in my opinion, be absurd to hold that a person who has lost all right to sovereign status, even if he ever possessed it, and is now reduced to the status of an ordinary subject, could nevertheless demand the right to wield the attributes of sovereignty and deal directly with the paramount power and not be amenable to its revenue laws.

22. Similar contentions have twice been raised before their Lordships oil the Privy Council and have been unequivocally rejected. In 39 Cal. 61510 their Lordships were dealing with zamindars in the Raipur district of the Central Provinces. Their status is the same as that of the plaintiff in Civil Suit No. 1 of 1941. Those zamindars also claimed to be governed by the Chanda Patent though the Privy Council held that document could be disregarded for purposes of the case before them. Their Lordships held at p. 657 that the zamindars before them were ordinary British, subjects. As I have said, counsel in civil Suit No. 1 of 1941 accepts this position. It would, I think, be impossible to take up any other after that decision.

23. Their Lordships reached a similar conclusion in 24 N.L.R 25. (’28) 15 A.I.R 1928 P.C 10 , 107 I.C 7 , 55 I.A 45 , 55 Cal. 403 , 24 N.L.R 25 (P.C) They were dealing there with the Amgaon estate, one of the Wainganga zamindaris, in the Bhandara district of the Central Provinces, and though none of the present zamindaris was directly in suit there, all three have been expressly mentioned at one place or another of the judgment and linked up with the Amgaon estate. At page 28 Kamtha, which is in dispute here, is; referred to and is called the parent estate. Kamtha is again referred to at p. 29 and is said there to include Deori-Kishori and Wadad, the other two estates with which we are concerned in Civil Suit No. 2 of 1940. Kamtha is again referred to at p. 82 and is shown there as the parent estate from which six other zamindaris have sprung. Their Lordships held at page 34 that these zamindars were ordinary British subjects. In the face of that it is impossible to claim quasi sovereign status.

24. I hardly think there can be any serious difficulty on this point after the passing of the Constitution Act. The feudatories and independent chiefs are all listed and classified in sch. 1, Government of India Act, which is to be found at pp. 230 to 234 of vol. 1, Constitution Manual. None of the zamindaris we are dealing with here is in that list. I will, however, deal with the historical material placed before me in civil Suit No. 2 of 1940 at a later stage as this case is likely to go further. For the moment I will proceed on the assumption that the plaintiffs are ordinary British subjects amenable to the revenue laws of the province.

25. In order to understand the arguments on this point it will be necessary to go back some years and delve into a little history. In Civil Suit No. 2 of 1940 the plaintiff admits in para. 6 of the plaint that he was assessed to takoli at each of the three settlements which have occurred in his tract in the years, (1) 1868, Lawrence's Settlement known as the 30 years settlement, (2) 1894–1899, Napier, (3) 1916–1922, Gordon. He has only filed kabuliyats relating to the two latter settlements but in view of his admission it can be accepted that he has been assessed and has been paying takoli all through. The kabuliyats filed are (1) in respect of the second settlement (Napier's) Exs. P-1 to P-3 and (2) in respect of the third settlement (Gordon's), Exs. P-4 to P-6. I need not set out the details of the earlier kabuliyats but it is necessary to mention that the last three cover the period from 1st July 1917 to 30th June 1938. The period of agreement (I use the term as distinct from contract), therefore, expired before the suit was launched, but the plaintiff contends that he is entitled under Section 88 of the C.P Land Revenue Act, 1917, to hold at these rates until a new assessment is made at a fresh settlement and is ready to take effect.

26. In the other case, civil Suit No. 1 of 1941, the settlements were as follows: (1) 1869 (Lucie Smith), (2) 1897 to 1906 (Hemingway), and (3) 1922 to 1924 (D.L Swami). The relevant kabuliyats are, Ex. P-A in respect of the first (Lucie Smith's), Exs. P.C and D in respect of the second (Hemingway's) and Ex. P-E in respect of the third (D.L Swami's). Again, I need only refer to the details of the last document. The period covered by it is 1st July 1924 to 30th June 1944. It will be observed that this period has not yet expired.

27. The impugned Act became law on 6th January 1939, and took effect from 1st July 1938. It consequently breaks into the period covered by Ex. P-E but was passed after the expiry of the one covered by Exs. P-4 to p-6 in the other case, not that makes any difference according to that plaintiff's learned counsel. The earliest Land Revenue Act of this province is Act 18 of 1881. Before that the land revenue administration of the province was regulated by executive instructions. These were finally embodied in the Settlement Code of 1863. The first assessments, therefore, of 1867 in the one case (admitted in the plaint) and of 1868 in the other (Ex. P-A), were not the result of legislative authority but of executive instructions.

28. The right to do this is not challenged in either case. It is based on the fact that in the latter part of the 18th century when British administration began, the rulers of the country, who preceded the British, asserted rights as the universal landowners, and when the British took over, they adopted the same attitude. In that capacity they claimed the right to take a portion of the produce and later commuted this to a money payment even after “proprietary rights” were conferred or recognised. (See Baden-Powel's Land Systems of British India, vol. 1, pp. 216, 217). Whether this is a rent, or a tax, or revenue, has at times been the subject of debate, (Baden-Powel considered it was really a tax on agricultural income: see p. 240 ibid), but the matter is not of much consequence here, except for one argument which I shall examine later, because whatever its nature it has been called land revenue in successive enactments and it will be convenient to adhere to that term. These claims were considered by a Division Bench of this Court in First Appeal No. 177 of 1933 First Appeal No. 177 of 1933 and received legislative recognition in Bengal Regulation No. 19 of 1793. The Preamble runs as follows:

“By the ancient law of the country the ruling power is entitled to a certain proportion of the produce of every bigha of land (demandable in money or kind, according to local custom) unless it transfers the right thereto for a term or in perpetuity, or limits the public demand upon the whole of the lands belonging to an individual, leaving him to appropriate to his own use the difference between the value of such proportion of the produce and the sum payable to the public, whilst he continues to discharge the latter.”

29. The first portion of this passage is repeated in the Preamble to Bengal Regulation 37 of 1793 and the following is added:

“As a necessary consequence of this law every grant or alienation of Government's proportion of the produce of lands without its sanction was considered null and void.”

30. In point of fact even in England the King is theoretically “the Lord Paramount either mediate or immediate of all land within the realm.” See 27 Halsbury's Laws of England, Hailsham Edition p. 575 and Topham's Real Property, Edn. 8, p. 2. Badenpowel refers to this when dealing with this situation in India in Vol. 1, p. 218 of his book. He quotes Field and Williams on Real Property, and in vol. 2, pp. 456 to 458, he deals with the effect that the conferral of proprietary rights had in this Province.

31. The legal effect of these “awards” was considered very fully by the Division Bench ruling of this Court to which I have already referred: First Appeal No. 177 of 1933. First Appeal No. 177 of 1933 I need not reproduce what is said there — it is enough to say that the conclusion reached was that the persons upon whom proprietary rights were conferred did not become absolute owners of the land but received an estate which represented only a fraction of the total interests in the land. The remaining interests were divided up among a number of other persons such as “tenants” and “inferior proprietors,” and the State reserved to itself the right to collect “land revenue” and excepted from the “grant” or “award” (there was in point of fact no actual grant—that is also explained in the decision) rights in mines and quarries and certain forests.

32. But much of this is idle now. As the learned Judges of the Calcutta High Court observe in 62 Cal. 346 (’35) 22 A.I.R 1935 Cal. 368 , 159 I.C 98 , 62 Cal. 346 , 60 C.L.J 477 at p. 355 quoting Field:

“One of the effects of making the zamindars proprietors and fixing for ever the Government demand of revenue” (Field is dealing with the zamindars of Bengal) “was that all other rights in land were so completely effaced that at this present hour it is difficult to find a single vestige of them or to ascertain what they were.”

33. And in another passage,

“Under an arbitrary system of Government, where so much depended upon the will of the ruler, rights were not demarcated by metes and bounds as they are under a systematic constitution like that of Great Britain.”

34. And anyway, “the old foundations are buried beneath the new structure.” However, as the Division Bench ruling cited above points out, there was in point of fact no intention at the proprietary rights settlement to confer new estates or titles and there was no actual grant, the old estates continued though for all practical purposes the “award” is the starting point of title; it conferred an estate jure corona : see, 30 Cal. 843 (’03) 30 Cal. 843 , 67 P.R 1903 , 30 I.A 190 , 8 Sar. 455 , 8 C.W.N 81 (P.C) at p. 863. But if the original title can be traced and it is a not inconsistent with the “award” the rights in it prevail. This was based on a number of Privy Council rulings cited there. However, as I have said, for all practical purposes, the settlement award is the starting point of title.

35. In 62 Cal. 346 (’35) 22 A.I.R 1935 Cal. 368 , 159 I.C 98 , 62 Cal. 346 , 60 C.L.J 477 at p. 354 it was argued that the settlement did not create new rights but merely continued pre-existing rights. The learned Judges did not decide the point but referred to an observation of their Lordships of the Privy Council in 53 Cal. 533 (’26) 13 A.I.R 1926 P.C 41 , 94 I.C 974 , 53 Cal. 533 , 53 I.A 100 (P.C) where Lord Phillimore without deciding the point said:

“the argument receives no support from decided cases and appears at first sight to be contrary to the teaching of text books.”

36. I have little doubt that the true position is the one given by the Division Bench baaed as it is on decisions of the Privy Council. In point of fact there was no fresh grant and the intention of the British Government was to continue the old estate as near as may be. But absolute rights in the soil were never recognised in the pre-British era and the British Government had no intention of surrendering these paramount rights and has never done so. The legal effect of the proprietary rights settlement was to create, or at any rate to crystallise, rights jure corona; the old rights continue only in so far as they are not inconsistent with the settlement award.

37. One of the effects of this is that such of the zamindars as were not recognised and classed as feudatories were made amenable to the liability to pay land revenue whatever their previous rights may have been, and as ordinary British subjects they are amenable to the revenue laws of the land. The only ground therefore on which the plaintiffs here can claim exemption is some binding “grant” or “engagement” which prevents Government in spite of legislation from collecting the revenue for assessed, assuming such “grant” or “engagement” can override the Legislature and assuming, of course, that the legislation is valid.

38. In 6 M.I.A 101 (1854-57) 6 M.I.A 101 , 4 W.R 77 , 1 Sar. 606 , 1 Suther 248 (P.C) at p. 110, their Lordships of the Privy Council, dealing with the zamindars of Bengal, observed:

“It was considered by the East India Co., that the first step towards a better system of government and the amelioration of the condition of their subjects, would be to convert the zamindars into landowners and to fix a permanent annual jumma, or assessment to the Government, according to the existing value, so as to leave to the land proprietors the benefit of all subsequent improvements.”

39. My conclusion on this part of the case is, (I will deal with the claim in civil Suit No. 2 of 1940 to quasi sovereign status separately—I do not think there is anything in it), that the plaintiffs, whatever their previous status may have been, are liable and always have been liable since the introduction of British rule into the province, to be assessed to land revenue, and are bound to pay it if and when it is claimed from them, subject, of course, to the revenue laws.

40. The next question is whether this takoli, which the plaintiffs have been paying all along and which they admit they are liable to pay, is land revenue or not. In my opinion it is. As the learned counsel for the plaintiff in Civil Suit No. 1 of 1941 observed, there is no magic in the word. It is derived from “tuka” which simply means a quarter of a rupee. See as to this Lucie Smith's Settlement Report of the Chanda District of 1869, para. 360. (I am referring to the paragraphs rather than to the pages because there have been various reprints of these works in which the pages differ). He says:

“The Government demand on a zamindaree is styled tukolee, and the word appears to be derived from ‘tuka,’ and ancient division of money equal to 1024 cowries or about one-fourth of a rupee.”

41. Therefore, it has no etymological significance. In course of time it came to denote a lenient assessment. This is the definition given in the Glossary of Vernacular Terms appended to Dyer's Introduction to the Land Revenue and Settlement Systems of the Central Provinces. It was written in 1901. “Takoli. A lenient assessment, usually a low fraction of the kamiljama imposed on jagirs and zamindaris.” Kamiljama is defined there as “the full revenue assessment.” Therefore, in so far as the word means anything, it means a low revenue assessment. If so, takoli is revenue.

42. We find it used loosely in a large number of documents, and even by their Lordships of the Privy Council, as the equivalent of, in certain places, “revenue” and, in others, of “tax,” “quit-rent” and “tribute.” In my opinion, the word has no exact meaning and its significance varies according to the connotation in which it is used. In the case of feudatories who are not British subjects, it may possibly, and probably does, connote a “tribute” leviable by the paramount power. But in the case of non-feudatories it is nothing more than a portion of the land revenue.

43. One gathers this also from their Lordships of the Privy Council. In 21 Cal. 14217 at page, 148 they say:

“The Government revenue represents that portion of the produce of the land which from time immemorial has been considered in eastern countries to belong as of right to the sovereign power in the State. In India payment in kind has long since been commuted for a money payment, which in some cases is fixed permanently, and in others is liable to revision by periodical settlements. Sometimes the Government revenue is spoken of as a quit-rent, sometimes as a land tax. But however it may be described and however it may have been assessed, it is the first and paramount charge upon the land, etc.”

44. I will refer to the historical material placed before me during the arguments but the position even historically seems to me to be the one described by their Lordships, “however it may be described and however it may have been assessed” it is at bottom land revenue. The earliest document in point of time is the report of Sir Richard Jenkins on the Territories of the Nagpur Rajah. The report is dated 1827. At pp. 131 and 132 he referred to the levy as “rent,” particularly in the case of the zamindar of Kamptha (the one in question in Civil Suit No. 2 of 1940). But he was speaking of the zamindars in general and has included in his list those who are now recognised as feudatories as well as the lesser ones who are now classed as ordinary British subjects. At pp. 135 and 138 helled it “tribute.” The word “takoli” is not used. Therefore, in the earliest reference to this levy, it is described indifferently as “rent” and “tribute.”

45. In 1868 Sir Richard Temple called the levy “tribute or revenue” in para. 34 of his report on the Zamindaris and other Petty Chieftaincies of the Central Provinces, (he did not use the word “takoli”) and in para. 37 he said:

“This demand……represents the share due to the British Government in the public revenues leviable from the tract in question; the rest of the said revenues being receivable by the Chief. The said Chief is supposed to collect all the public revenues out of which he pays a portion only to Government.”.

46. In 1868 Lawrence in his settlement report of the Bhandara District used the word “takoli.” (This is the earliest use of it that I have been able to find). In para. 22 he called it a “quit-rent” and in para. 195 a “quit-revenue.” In this latter paragraph, he explained why only a quit-revenue was taken and said:

“In consideration of their ancient tenure and their, long acknowledged privileges the State has been pleased to remit a portion of their village jummas.”

47. We next hear of it in Exs. D-2 and D-3. The former is a letter from the Secretary to the Government of India to the Chief Commissioner of the Central Provinces and the latter is the reply. Both are dated 1874. Para. 2 of the former calls the levy a “quit-rent” and para. 2 of the latter “tribute or quit-rent.” In Ex. D-4 the Government of India were more specific. It is another letter from the Secretary to the Government of India to the Chief Commissioner and is written in the year 1892. In para. 6 it is said:

“The payments received from the zemindars are denominated “takoli.” This takoli, it is clear, is not tribute, for the payers are non-feudatory. It partakes more of the nature of a quit-rent, being always considerably short of the ordinary jama of a malguzar, but it is best designated by its vernacular name.”

48. I have already said that in my opinion that 6 is the correct legal position. However, all I am doing here is to point out as a matter of historical interest, since the matter was argued so fully from this aspect as well, the views which were taken from time to time of this levy. Exhibit D-5 is another letter from the Secretary to the Government of India to the Chief Commissioner of the Central Provinces. It was written in 1897. In para. 9 the “excise takoli” is referred to as part of the land revenue.

49. A.B Napier wrote his Settlement Report of the Bhandra District in 1902 and speaks in para. 60 of “a takoli or quit-rent less (as a rule) than the kamil jama assessed on their estates.” Robertson in his letter forwarding this report to the Government of India observes in para. 4:

“The zamindars in this district were at the last settlement deprived of the special powers which they had until then enjoyed and had been reduced to the position of large land owners holding on a privileged assessment of land revenue in consideration of the antiquity of their tenure.”

50. Exhibit D-6 was written in 1903. It is a letter from the Commissioner of Settlements and Agriculture, Central Provinces, to the Chief Secretary to the Chief Commissioner. In it P.C Sly refers to the levy in para. 4 as “the land revenue takoli.” Dyer in his introduction to the Land Revenue and Settlement Systems of the Central Provinces (written in 1921) speaks of this in para. 70 as “takoli or quit revenue” and I think he indicates from paras. 67 and 70 that takoli is at bottom land revenue. I have already referred to his definition of the word in the glossary. Waterfall in his Settlement Report of Raipur and Drug Zamindaris written in 1925 reports at p. 21 (the paragraphs are not numbered) that the zamindars “pay by way of land revenue or takoli only a portion of the malguzari kamil jama.”

51. I do not think it is necessary to refer to any more documents. Those referred to reveal that there has never been any real difference of opinion among a long succession of officers who were in a position to know the conditions of these zamindaris as to what takoli is though they have not been very exact in finding an English equivalent for the term. There has never been any real doubt as to the substance of the thing and all through the difficulty has been to find a neat English equivalent. So far as the substance of the thing goes, their opinions point on the whole to takoli being a portion of the land revenue and thus land revenue rather than tribute.

52. In 39 Cal. 61510 their Lordships of the Privy Council called this payment “tribute” at p. 657 and “revenue” at p. 659. I do not think they were using the term with any greater exactitude than those officers to whom I have referred.

53. I may remark in this connexion that the only plaintiff who contends that takoli is not land revenue is the one in civil suit No. 2 of 1940. But he has not raised any such contention in his plaint. There he refers to the payment throughout as land revenue: see paras. 1, 3, 5 and 6. In view of his express admission in paras. 1 and 3 that he is liable to pay land revenue to Government and his statements in paras. 5 and 6 where he calls takoli land revenue, I do not think he is entitled to raise this 3 issue and I so hold. But seeing that the case is likely to go further I have thought it right to set out the material placed before me for the assistance of a higher tribunal.

54. As I have said, I do not think it matters, what this levy was in its origin; once the plaintiffs were reduced to the status of ordinary British subjects, even if they had been sovereign or quasi sovereign before, they became liable to pay land revenue, and, in my opinion, they have always been paying it, though on a lenient basis. Now, if the plaintiffs are ordinary British subjects, and I think that is undoubted, then they are subject to the ordinary laws of the land and it is for them to show that they are not.

55. I have already said that it has been recognised from the time the British took over from the previous rulers of the country that every acre of land, unless specially exempt, is liable to contribute its quota of land revenue to Government. This has now received legislative sanction in this Province and whether this revenue was in its origin a first charge on the land or not it has since become so by reason of the C.P Land Revenue Act (Act 2 of 1917). Section 56(1) of that Act, provides that:

“All land, to whatever purpose applied and where-ever situate, is liable to the payment of revenue to Government, except such, land as has been wholly exempted from such liability by special grant of, or contract with, Government, or by the provisions of any enactment for the time being in force. Such revenue shall be called ‘land-revenue’.”

56. And sub-s. (3) provides that:

“No length of occupation of any land, nor any grant of land made by the proprietor, shall release such land from the liability to pay revenue.”

57. The earlier Land Revenue Acts of this Province did not have these provisions though the right of the Crown to such revenue was implicitly recognised, for provision was made in them for its assessment and collection. But that makes no difference for, as I have already pointed out, the Bengal Regulations which had the force of a statute expressly set out the Crown's rights in this respect and the Privy Council confirmed them by judicial pronouncement in 21 Cal. 14217 at p. 148. As a matter of fact neither plaintiff challenged the right of the Legislature to make provisions for the taking of revenue in 1917. What was argued in the one case was that takoli was not revenue and so the Act does not apply, and in the other that there is an express grant or contract, etc., which ties the hands of the Crown; also that since the passing of the Constitution Act the Legislature can no longer do what it could before that Act because of Section 299.

58. I may remark at this stage in connexion with the question whether takoli is revenue or not, that, seeing the stress laid by the Crown on its right to collect land revenue from the land of every subject, it would be strange to find it collecting something so akin to land revenue in its origin, its nature, its method of assessment and method of collection, and yet claiming it as something vague which is not revenue. Moreover, what reason is there for not exercising the right? There is no grant touching this matter and there is no contract (I shall deal with this in a moment) while there are repeated declarations that in recognition of the ancient status of these zamindars a lenient assessment is being made and only a fraction of the assessed revenue is being collected.

59. If takoli is land revenue, as I hold it to be, then the power of the Provincial Legislature to make laws regarding it (subject to S. 299) is, I think, undoubted. Land Revenue, including its assessment, collection and alienation, forms item 39 in the Provincial Legislative List in sch. 7, Constitution Act, and is within the exclusive province of the Provincial Legislature. If, on the other hand, it is a tax, then, seeing the manner of its assessment, it can only be a tax on agricultural income and so would still be within the province of a Provincial Legislature because of item 41 in that list; or at the very least it is a tax on land and so falls under item 42. (I have already referred in para. 33 of this judgment to Baden-Powell's opinion that land revenue is really a tax on agricultural income). That agricultural income can be taxed by a Provincial Legislature is settled by 20 Pat. 573 (’41) 28 A.I.R 1941 Pat. 306 , 194 I.C 663 , 20 Pat. 573 , 22 P.L.T 863 (SB) which was confirmed by the Federal Court in A.I.R 1942 F.C 8. (’42) 29 A.I.R 1942 F.C 8 , 199 I.C 1 , 21 Pat. 521 , %ILR 1942 KAR FC 1 (F.C)

60. It will also be convenient to point out at this stage that if the matter rests in contract as is contended in one branch of the argument, then also the Provincial Legislature can deal with it. Contract is item 10 in the Concurrent List, and Section 107(2) of the Constitution Act, provides that:

“Where a Provincial law with respect to one of the matters enumerated in the Concurrent Legislative List” (‘contract’ in this case) “contains any provision repugnant to the provisions of…. an existing Indian law” (the law of contract here) “with respect to that matter, then, if the Provincial law, having been reserved for the consideration of the Governor-General… has received the assent of the Governor-General…. the Provincial law shall in that Province prevail…”

61. Whether the impugned Act was reserved for the consideration of the Governor-General is a question of fact. The validity of this Act 9 was not challenged on this ground in the pleadings and so I am bound to presume that everything which ought to have been done was done. Therefore, even if the impugned Act does interfere with rights of contract, it is not invalid for that reason. See as to this 1939 F.C.R 193 (’39) 26 A.I.R 1939 F.C 74 , 182 I.C 161 , %ILR 1939 KAR FC 165 , 1939 F.C.R 193 (F.C) at p. 197. But even if the Act was not reserved for consideration, nevertheless, in that it received the assent of the Governor-General on 6th January 1939 it is validated by Section 109(2)(b) of the Constitution Act.

62. Having now cleared these subsidiary matters out of the way, and having decided that takoli is land revenue, I go back to the main point, namely, whether the enhancement of the takoli which the impugned Act makes is a “compulsory acquisition for public purposes of any rights in or over immovable property” within the meaning of Section 299(2)(5) of the Constitution Act. (The quotation is not an exact quotation from the Act but is the effect of reading the two sub-sections together). Before going into this, however, it will be necessary to refer to certain cases regarding interpretation which were quoted at the Bar. It was argued on the strength of the Privy Council that in considering the validity of enactments like these “where the law-making authority is of a limited or qualified character” one must look to the “true nature and character of the enactment… its pith and substance,” and that

“it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject-matters… the legislation falls,”

and that

“for this purpose the legislation must be scrutinised in its entirety.” “The legislation must not in the guise of dealing with one matter in fact encroach upon the forbidden field.”

63. The decisions relied on are 1924 A.C 328, (1924) 1924 A.C 328 , 93 L.J.P.C 137 , (1924) W.C & I. Rep. 97 , 130 L.T 738 , 68 S.J 383 , 40 T.L.R 273 , 18 Ll.L Rep. 53 at p. 367, 1937 A.C 355 (’37) 24 A.I.R 1937 P.C 89 , 1937 A.C 355 , 106 L.J.P.C 37 , 156 L.T 307 , 81 S.J 215 , 53 T.L.R 332 at p. 367, 1937 A.C 863 (1937) 1937 A.C 863 , 106 L.J.P.C 161 , 157 L.T 374 , 81 S.J 609 , 53 T.L.R 929 , (1937) 3 All. E.R 598 at p. 870 and 1899 A.C 580 (1899) 1899 A.C 580 , 68 L.J.P.C 118 , 81 L.T 277 , 15 T.L.R 508 at p. 587. These propositions are beyond dispute and were not contested by the Provincial Government. I agree that one must look to the pith and substance of the impugned legislation and not merely to its form to see whether there is here any “compulsory acquisition for public purposes of any rights in or over immovable property.” But, subject to this, it is also necessary to bear in mind what the Privy Council said in 4 Cal. 17225 at pp. 180, 181:

“The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.”

64. The cases relied on by the two plaintiffs for showing that land revenue generally, including the right to collect it and assess it, and the liability to pay it, is either immovable property, or a right in or over immovable property, are the following: 21 Cal. 14217 at p. 148, 1 I.A 346 at pp. 52, 58, 11 Bom. H.C.R 126 at p. 2, 19 Bom. 66327 at p. 667, 23 Bom. 128 at p. 11, 24 Bom. 615, (1900) 24 Bom. 615 , 2 Bom. L.R 427 86 Bom. 174 (’12) 36 Bom. 174 , 12 I.C 716 , 13 Bom. L.R 1047 at p. 180, 27 ALL. 462, (’05) 27 All. 462 , 2 A.L.J 208 , 1905 A.W.N 48 1940 Rang. L.R 7, (’40) 27 A.I.R 1940 Rang. 102 , 187 I.C 762 , 1940 B.L.R 7 4 P.R 1894 (’94) 4 P.R 1894 p. 6 at p. 6, 15 I.C 32,34 A.I.R 1936 Nag. 217, (’36) 23 A.I.R 1936 Nag. 217 , 165 I.C 414 A.I.R 1937 Mad. 303 (’37) 24 A.I.R 1937 Mad. 303 , 173 I.C 307 at p. 306, A.I.R 1933 Bom. 26 (’33) 20 A.I.R 1933 Bom. 26 , 141 I.C 103 , 34 Bom. L.R 1469 at p. 32 and A.I.R 1942 F.C 27 (’42) 29 A.I.R 1942 F.C 27 , 200 I.C 198 , %ILR 1942 KAR FC 40 , I.L.R (1942) Lah. 623 (F.C) at p. 31.

65. I need not look into all these cases. It is true most of them deal with special definitions in special Acts, such as the Limitation Act and the General Clauses Act, and I agree that the definitions of “immovable property” differ in different Acts and that what would be immovable property for the purposes of one Act would not necessarily be immovable property for the purposes of another. But we have the origin of this right to recover land revenue and its nature set out quite clearly in the Bengal Regulations and the Privy Council decision which I have already quoted. Originally, land revenue was a share in the actual produce of the land and it was collected in kind, now the share is not taken in kind but is represented by a money equivalent. The Privy Council held unequivocally in 1 I.A 346 at pp. 52, 53 that the right to receive an annual payment out of the rents and profits of an inam village is an “interest in immovable property” within the meaning of the Limitation Act of 1859. The right of the Provincial Government in the present cases is very similar to that and so, in my opinion, would be an interest in immovable property within the meaning of the Limitation Act.

66. I have already decided in para. 22 of this judgment that the words “immovable property” in the Constitution Act must be construed in the light in which the term is used in India with reference to matters of this kind. If, therefore, the right to collect takoli, which I consider island revenue, would be “immovable property” for the purposes of the Limitation Act, and I so hold, then in my opinion, seeing that there are no words of restriction in the Constitution Act, the right must be considered to be “a right in or over immovable property” within the meaning of S. 299(2)(5). But that by no means concludes the matter. The question is, whose is the right and whose the liability? The right, in my opinion, unquestionably resides in the Crown (and now the Provincial Government), the liability in the plaintiffs. The plaintiffs have no rights to this takoli or to the land revenue. It is true they have the right to collect it, (or to collect what eventually becomes land revenue however it may be called when collected fractionally), from inferior holders such as inferior proprietors, malguzars and tenants, and in so far as those rights are concerned, they are “rights in or over immovable property”, but these rights are not affected by the impugned Act. The plaintiffs are free to collect the village profits and land revenue from others just as freely as before. The impugned Act affects not their right to collect or to demand land revenue from others, but their liability to hand over what is collected.

67. Now, as I have said, the State has continuously asserted its rights to a share in the produce of every acre of land from the earliest times, and the person who collects the produce, or whatever now represents the produce, is bound to hand it over to the State—the whole of it if it is so demanded, though I need not decide that here—but certainly the whole of such proportion of it as the State chooses to assess, (aside of course from releases, grants, contracts, binding engagements and the like—matters I have yet to deal with).

68. The full amount of the assessment is known as the kamil jama. I have already referred to Dyer's definition of it in para. 45. It has since been defined by the Legislature in Section 2(4) of the Central Provinces Land Revenue Act of 1917. The definition given is

“the kamil jama of any estate, mahal or land means the land revenue which would be payable to Government in whole or in part, if the same had not been released, compounded for or redeemed.”

69. An “estate” is defined to mean in S. 2(3)

“any collection of mahals held by the same proprietor, which the Provincial Government may, by notification, declare to be an estate.”

70. The requisite notification has been issued. (It will be found at p. 10 of vol. 1 of the Central Provinces Revenue Manual). The zamindaris in question here, namely Kamtha (No. 1), Wadad (No. 2), Deori Kishori (No. 21) and Palasgarh (No. 56), are declared to be “estates” for the purposes of the Central Provinces Land Revenue Act. The plaintiffs are ordinary British subjects and are bound by this legislation, and in any event the Act does no more than set out the position which has existed at any rate since the introduction of British rule into the Province, and that Act has not been impugned. Therefore, under S. 88 of that Act the plaintiffs are bound to pay whatever their estates are assessed to. All this is a liability vis-a-vis the Provincial Government and not a right. If the Provincial Government chooses not to enforce the whole of the liability against the plaintiffs, that is a concession in the gift of the Government and not a right which the plaintiffs can claim (aside of course from the question of contract, grant etc., which I have yet to consider).

71. Section 299(2) of the Constitution Act, prohibits the compulsory acquisition for public purposes of any rights in or over immovable property. As the rights lie with Government and the liability in the plaintiffs, this enforcing of an enhanced measure of the plaintiffs' liability against them cannot, in my opinion, be called the acquisition of a right. The language of sub-s is of S. 299 can be usefully compared at this stage with that of sub-s. (2). It deals with bills or amendments which make provision for the transference to public ownership of any “land” or for the “extinguishment or modification of rights therein.” and then follows this clause: “including rights or privileges in respect of land revenue.” I have already referred to the argument of the Crown that these words would be unnecessary if “rights or privileges in respect of land revenue” were intended to be included within the definition of “land” in sub-s. (2).

72. There is force in the contention though I confess that its acceptance leads to difficulties with my conclusion that a right to collect land revenue is a right in or over immovable property within the meaning of S. 299(2). The difficulty is this. If the right to collect and demand land revenue is “a right in or over immovable property,” then it would appear to be “a right or privilege in respect of land” within the meaning of sub-s. (3) of S. 299, read with sub-s. (5), and consequently, on that hypothesis, the words “including rights or privileges in respect of land revenue” would be unnecessary. The fact that they are inserted does appear to import the inference that these rights and privileges were not intended to be included within the meaning of “land” in sub-s. (2). That conflicts with my finding. If this contention is correct, then it would seem that my conclusion that a right to collect land revenue is “a right in or over immovable property” and is therefore “land” is wrong. I prefer, however, in spite of this, to adhere to my conclusion, and prefer to regard the inclusion of these words in sub-s. (3) as matter introduced by way of abundant caution.

73. As regards the argument set out in para. 14 of this judgment, I think it imports a fallacy. If a man is allowed to collect X + Y + Z from others but is bound under law to hand over X + Y if demanded, his income is not X + Y but only Z, unless some portion of X or Y is relinquished. X + Y is not his and the mere fact that he has been given the right of collecting it does not make it his—his collection of it is for and on behalf of another. It can only become his if and when the other, for whom it is collected, chooses to relinquish it and as it were make a gift of it to the one who collects. The collector has never had any rights in X + Y beyond the right to collect, and that, as I have pointed out, is not affected by the impugned Act. The moment he collects it he incurs a liability—the ability to pay it over. (As a matter of fact, in the present instance the liability to pay over to Government is there whether the money is collected by the plaintiffs from others or not). If, however, either X or Y is relinquished or not demanded by Government, then it becomes the property of the collector, but by that time it has ceased to be “a right in or over immovable property.”

74. I may refer here to another argument on behalf of the Provincial Government. It is to this effect. Even if it be assumed that the right to collect land revenue is “a right in or over immovable property” (that is not conceded by the Provincial Government), the moment the produce is gathered in or its money equivalent collected, then it ceases to a be immovable property, and the right of Government, thereafter, to collect its share in the shape of land revenue or takoli from the zamindars is not “a right in or over immovable property” but merely a right to obtain a sum of money, or in its origin, to gather up so many handfuls of grain from a heap which had long since ceased to have any connexion with the ground. This argument lends further force to the contention of the Provincial Government about the difference in wording between sub-ss. (2) and (3) of S. 299.

75. I prefer, however, to adhere to my view that the right to collect is “a right in or over immovable property” even when we get to the residuary right of to Government to take its share of the collection from the zamindars who do the actual collecting. The origin of the right, the long number of cases which have taken that view in respect of a series of different Acts, the special manner in which it is enforced, the making it, a first charge upon the land, and the fact that Government can claim the assessment from the zamindar whether he collects anything or not, all appear to point to the conclusion that this is “a right in or over immovable property” even when we are considering the right which Government has over as against the zamindars who are the actual agents for collection. But the right is the right of Government—the plaintiffs have no rights vis-a-vis the Government—they have only liabilities. It follows that the impugned legislation which merely cuts away a portion of the concession which is a free gift of Government does not touch or confiscate any of the plaintiffs' rights.

76. I now proceed to consider the arguments relating to “grants”, “contracts” and “binding engagements”. I will deal first with the question of grant. The plaintiff in civil Suit No. 1 of 1911 does not base his rights on any “grant” in the proper sense of the term. He confines his case to the Chanda Patent and to the effect of the settlement made with him. The plaintiff in the other case however sets up an express grant or sanad. No document importing a grant or amounting to a sanad has been produced, nor is there any oral evidence to indicate that a sanad was ever granted. If such a sanad was granted, no attempt has been made to prove its loss. This plaintiff (the one in civil Suit No. 2 of 1940) stated in his plaint that the sanads (he speaks of more than one) granted by the British Government and by the Rajah of Nagpur were filed in civil suit No. 23 of 1899 in the Court of the Civil Judge, Bhandara, and stated that they are now lost. But no attempt was made to prove the loss. Consequently, secondary evidence of the terms of this grant, even if made, would he inadmissible. But I would be sorry to deal with such an important case in this technical way. There are indications in some of the historical documents that a sanad of some sort was issued and I think it must have been lost though strictly there is no evidence to prove the loss.

77. Hector Mackenzie says in para. 19 of his letter No. 4846 dated 31st October 1863 to the Secretary to the Government of India that: “The Wainganga zamindars Were bound by the old sanads conferring the tenure “to furnish etc.” (The letter will be found at the beginning of Temple's Report on the Zamindaris and other Petty Chieftaincies in the Central Provinces). He however bases this upon Jenkins' Report on the Territories of the Raja of Nagpur and Jenkins says at p. 132:

“The lands of all the zamindars, with the exception of Narbad Patel… seem to have been granted or confirmed…”

78. Had the matter rested there I would have concluded that there was no grant in the case of Narbad Patel, particularly as he already held Kampta as a talukdar. But Sir Richard Temple made an independent survey of these zamindaris and one gathers from his report that he actually saw the sanad pertaining to this estate. He says in Appendix B under the heading of Kampta:

“In A.D 1843 (that would be after Narbad Patel) on the presentation of a nazar of half a lakh of rupees, the present possessor obtained a sanad from the late Raja, granting the estate on zamindari tenure.”

79. He then continues: “No mention is made in the sanad of the amount of revenue payable to Government.” This passage indicates to my mind that he must have seen the sanad unless he was acting on hearsay. Of course it is possible that he was speaking loosely but I do not think it would be fair to conclude that, particularly as it was usual to grant sanads in these cases. However the crucial question is not whether a sanad was granted but what did it contain? and what do the words “on zamindari tenure” import?

80. The defendant rehes on a passage in Lawrence's Settlement Report of the Bhandara District, 1867, where, dealing with Kampta and Deori Kishori (among others), Lawrence states that these estates were handed over to the Lodi Zamindar of Warud by name Narbad Patel and then continues:

“Two years later Major Wilkinson proposed that the estates should be made over to him altogether. No papers with reference to this are forthcoming. See p. 26 of the Appendix).”

81. It is not clear whether the sentence italicised refers to Wilkinson's proposals or to the papers of the estate. Kampta was handed over to Narbad Patel in 1818 as a taluk and was converted into a zamindari in 1843 in the time of Narbad's grandson Yeshwant Rao. I gather Wilkinson's proposals were made in 1820. If that is so, then the sanad relating to the zamindari had not been given. I do not think this tells against the plaintiff. Gordon in his Settlement Report of the Bhandara District, 1916–1921 observes generally in paragraph 70:

“The zamindars of this district hold practically no privileges superior to those of ordinary malguzars save that… They hold no sanads such as obtain in Chanda or Chhatisgarh.”

82. Again, it is not clear whether Gordon means that they hold no sanads at all as contrasted with Chanda where they do, or whether the sanads are not of the same character. I gather however that by this time all these sanads had been lost. But however that may be, the important question is not whether there was a sanad but what did it contain. Jenkins commences Part 4 of his Report (p. 131) by observing: “There are properly speaking no zamindaris in this quarter.” He then sets out that the taluk of Kampta was first granted by the Maharatta ruler of Nagpur Raghoji I to one Ram Rao Patel. But it was granted on talukdari tenure and Ram Rao and his successors were not zamindars. In 1818 the family rebelled and the taluk was handed over to the plaintiff's ancestor Narbad Patel, a Lodhi but still on talukdari tenure. It was not till 1843 that Narbad's grandson Yeshwant Rao was raised to the status of a zamindar. The question is, what did that import in this part of the country? Was it merely a titular honour or did it import ruling powers? I think the last paragraph on p. 132 of the report, coupled with the opening remark in Part IV just quoted, show clearly that no ruling powers were given and that the honour was titular. This is what Jenkins says:

“The lands of all the zamindars, with the exception of Narbad Patel, are either in the bills or immediately under them. They seem to have been granted, or confirmed, to the ancestors of their present possessors, chiefly Gonds and Rajputs by the Mahrattas, as rewards for services, or to enrare their assistance in maintaining tranquility in a country at that time very unsettled and affording great facilities for resisting authority. The tenure, as appears by some old sanads, obliged the zamindaris, besides paying a fixed rent, to furnish a certain number of armed followers to assist the Government officers in police matters.”

83. It seems then that these remarks did not apply to Narbad Patel and it also seems that it was usual to insert in the sanads the “rent” payable to Government. When we get on to Temple's Report (Appendix B dealing with Kampta), we find that Yeshwant Rao did not receive his sanad for services rendered but by reason of a payment of a nazar of half a lakh of rupees. He seems to have been fond of pomp and show and was evidently prepared to pay a high price for privileges which many might regard as empty. Thus only six years later he paid Rs. 20,000 for the privilege of using a palanquin and a silver mace. The important point about this sanad is that it is silent about the revenue payable to Government whereas we gather from Jenkins that this formed an important item in the sanads of these zamindars who rendered service to the ruling power in the shape of policing their tracts and so forth. The very fact that Temple sets out this omission indicates what an important omission it was. Then again, we find from this report that the then talukdari estate of Kampta, to which Yeshwant Rao succeeded, paid the full, or nearly full, assessment of revenue to the Bhonsla Government. After setting out that no mention is made in the sanad of the amount of revenue payable to Government, Temple continues:

“Narbad Patel used to pay Nagpur Rupees 1, 12, 607-12-6; but in A.D 1843 this was reduced to Rs. 1,00,000. In A.D 1849 Yeshwant Rao presented another nazar of Rs. 20,000…. The revenue demand was in that year reduced to Nagpur Rs. 95,000.”

84. Still later, Temple observes that Yeshwant Rao was very ambitious and that:

“Of the property left by his father very little remains; the bulk of it has, according to his own account, been expended in…. paying the Government demand.”

85. It is to my mind clear from these extracts that Yeshwant Rao continued under an obligation to pay revenue to Government and that the sanad did not make any change as this. As a matter of grace the demand was reduced from time to time but that was not by reason of the grant. This will become even clearer when I proceed to deal with the documents which according to this plaintiff, entitle him to claim quasi sovereign status. But before getting on to that I observe that in every case where special powers and privileges were conferred on these zamindars Temple is careful to set them out in detail. See for instance his description of the estate of Mahagaon (listed by him as No. 29).

86. I will deal now with the, claim of the plaintiff in civil Suit No. 2 of 1940 to quasi sovereign status and with his contention that the takoli which he pays is not land revenue but tribute. I have already remarked that none of these matters is raised in his pleadings and that on the contrary there are express admissions in the plaint that what he pays is land revenue. I remark also that it is curious that of the two plaintiffs this is the one who should have raised this contention. There are remarks in some of the official papers which might have justified the other plaintiff in setting up such a plea but I can find no justification for this plaintiff's pretentions. For example, Craddock in his note on the Status of the Zamindars of the Central Provinces points out at p. 15 that the Chanda Zamindars were in a stronger position than those in Bhandara and shows that some of the Chanda Zamindars did at one time exercise quasi sovereign powers though the Privy Council classed them as ordinary British subjects in spite of that.

87. The basis of this plaintiff's contention is that these zamindars were at one time petty sovereigns exercising powers which only sovereigns can claim. They paid a certain tribute to the paramount power of the day but that tribute bad no relation to the land revenue payable by the subjects of the paramount power. In course of time, when the British took over, it became convenient to link up the operations of assessment with the land revenue operations but the distinction between the two was always kept in mind, and now just because, for the purpose of fixing the assessment, it is convenient to grade the takoli according to the land revenue, that does not alter the fundamental nature of the takoli. Reliance is placed for these propositions on paras. 8, 9, 10, 19, 34 and 37 of Hector Mackenzie's letter to the Government of India dated 31st October 1863. This letter is to be found in Temple's Report on the zemindaris and other Petty Chieftaincies of the Central Provinces.

88. Hector Mackenzie was Secretary to the Chief Commissioner of the Central Provinces and his letter is a general summary of the report submitted by Sir Richard Temple. It is true the letter states generally that these zamindars, though British subjects are not ordinary British subjects because they pay “tribute” and wield certain public powers. But it has to be remembered that was only the view of the Chief Commissioner and this view was not accepted by the Government of India except as regards the feudatories now listed in Sch. 1, Constitution Act. (See for example para. 6 of Ex. D-4). Moreover, Hector Mackenzie relies in para. 12 of his letter on Jenkins' Report on the Territories of the Raja of Nagpur as containing “the earliest authentic record of their history,” and Jenkins' report discloses that so far as the ancestors of this plaintiff are concerned, they were anything but sovereigns.

89. Jenkins calls Kampta (the zamindari in Civil Suit No. 2 of 1940) a zamindari, but shows that it was originally only a taluk and calls it such at p. 131 of is report. He commences this part of his report (part IV) by saying that “There are properly speaking no zamindars in this quarter.” He also shows that Kampta was originally granted to a family of patels who agreed to bring it under cultivation at a rent of only sixty rupees. That was all they undertook to do. There was no question of their policing their tracts or exercising any of the attributes and powers of sovereignty. This family rebelled in 1818 and so the “zamindari” (then only a taluk) was handed over to Narbad Patel, a Lodhi, the ancestor of the present plaintiff. This is the description given of Narbad: “Narbad is a mere cultivator, very rich and obedient in every way to the Government.” The again at p. 132 Jenkins states that the zamindars “with the exception of Narbad Patel” were granted their lands as rewards for services or to ensure their assistance in maintaining tranquility, etc. The patel's duties are set out at pp. 84 and 85 of Jenkins' Report. He states that they are merely the agents of Government for apportioning and collecting the rent of the village for which they are responsible, and continues:

“The office is held at the pleasure of Government, being neither hereditary nor saleable and on the ejection or resignation of the incumbent, no malikana is allowed.”

90. At p. 101 Jenkins states that the villages are leased out to the patels and that a “kabuliat” is taken from them regarding the amount of rent which they are to hand over to Government.

91. It is clear from all this that the plaintiff's ancestors never exercised any sovereign powers in the beginning and there is nothing to show that they were expected to do anything more than bring the lands given to them under cultivation. Jenkins' remarks about “tribute” and the like were therefore never meant to apply to the plaintiff's ancestors, on the contrary, he excludes them in express terms.

92. Temple does the same in his report. He deals with Kampta in appendix B and says:

“Kampta was not technically a zamindari until A.D 1843. It seems indeed to have been rather of the nature of a Talukdari tenure. The tract was known as the Kampta Taluk, and its holder was designated a Patel. Further, the Government demand was so high as to leave but a small margin, if indeed any, for the maintenance of the ordinary Government establishments, fiscal and police; which consequently have, during British rule, been kept up at the expense of the State. Kampta was certainly reported by Mr. Jenkins (pp. 238-40) as a zamindari, but nevertheless his report bears out the above remarks. And, moreover, the holder's petition in A.D 1843 begs for, and the Raja of Nagpur's takid (injunction) in reply confers, the title of zamindar for the first time on payment of a heavy nazar.”

93. It is evident from this that Kampta was never an independent chieftaincy and that the zamindar was always a subject of the Nagpur Raja, in fact, nothing more than a glorified patel. He obtained a titular status of zamindar in 1843 on presentation of a nazar of half a lakh of rupees. Page 30 of the report (Appendix B) says:

“No mention is made in the sanad of the amount of revenue payable to Government…. In A.D 1849, Yeshwant Rao “(a successor of Narbad)” presented another nazar of Rs. 20,000 in consideration of which he was allowed the privilege of using a palanquin, a silver mace, etc. The revenue demand was in that year reduced to Nagpur Rs. 95,000.”

94. This leaves no doubt that the plaintiff's ancestors never had any of the attributes of sovereignty, that they had to pay a heavy price for the titular privileges they were permitted to buy, and that they paid revenue. In view of this the admissions in the plaint are more than justified.

95. Moreover, if a change in position and power was intended it would have been set out clearly in the sanad. These petty chieftains did not get their privileges for nothing. They had to render service to the paramount power as well as pay tribute and in each case the nature of the service was carefully set out in the sanad. These services varied greatly as also did the tribute, so “zamindari tenure” as such would have been a meaningless expression apart from its titular advantages. If therefore the sanad is silent on these points, one can only conclude that the intention was to confer nothing but a titular honour and not to make a real change in position and power—not to convert a subject paying revenue into a semi-independent sovereign.

96. This plaintiff also relies on Ex. D-5 for a picture of the kind of sovereign powers the zamindars used to enjoy. But, as I have said, it is no use culling remarks from letters meant to apply to undoubted feudatories and applying them to an estate like the one under consideration which has been excluded from that category from the earhest times in express terms. Then this plaintiff rehes on para. 2, C.P Revenue Department Resolution set out at the beginning of Fuller's Settlement Code to show that the zamindars were excluded from the ordinary malguzari assessments and argues from that this was because of their special status. It is enough to say that by no means follows from the premises given, particularly in view of the express exclusions to which I have referred above. I turn next to the Settlement Reports. The plaintiff I am dealing with (that in Civil Suit No. 2 of 1940) relies in his list upon, among other documents, Letter No. 2380 from the Settlement Commissioner of the Central Provinces to the Secretary to the Chief Commissioner. It is dated 21st August 1867. No copy of the letter has been filed but a reproduction of it, which the other side accepts as authentic, is to be found in Lawrence's Report of the Bhandara District of 1867. Paragraph 21 of this letter, set out at p. 8 of the Report, gives an estimate of the rents and says:

“If allowance be made… for the extra profits which the State concedes to privileged holders, such as zamindars in the Bhundara sense of the word…”

97. And in para. 22 (also at p. 8) the takoli is spoken of as a “quit rent” and in para. 195 as “quit revenue.” Paragraph 97 of the Report proper dealing with the house of Warud says:

“At first they were put in as managers, but in course of time they acquired all the rights that their predecessors had enjoyed; and in 1843 they were granted the dignity of zamindars. To this high eminence had a family of wealthy cultivators arrived.”

98. The histories of Kampta and Warud are set out at pp. 26 to 28 of the appendix and date, so far as Warud is concerned, from 1843. Lawrence states that “no papers with reference to this are forthcoming.”

99. The next Settlement of the Bhandara District, 1894–1899, is Napier's. In para. 60 he states that

“at the time when the Nagpur country came under British rule, the zamindars were little more than malguzars, being only distinguishable by the size and compactness of their estates from the others. True, they had some powers of inflicting fines and of collecting some extra cesses from their tenants, but these powers were taken away before the last Settlement, and the only privilege left to them owing to their former importance was the right to pay a takoli or quit-rent less (as a rule) than the kamiljama assessed on their estates, and to retain the excess forest land which in the case of ordinary malguzars was converted into Government forest.”

100. The form of zamindari wazib-ul-arz is to be found at p. 71 of the Report. There is no difference between this so far as sovereign status is concerned and the ordinary malguzari wazib-ul-arz set out at p. 68.

101. The settlement after this is Gordon's Settlement of 1916–1921. The plaintiff we are dealing with has relied in his list on letter No. 1653-A dated 24th July 1922 from the Settlement Commissioner, Central Provinces, to the Secretary to Government. Paragraph 5 of that letter states:

“The zamindar's tenure is described in para. 70 of the Report. The only advantage these proprietors 0 possess over ordinary malguzars is that in consideration of their position as erstwhile pioneers of civilisation in the backward tracts of the district, they pay, not the full revenue or kamiljama fixed on their estates, but only a proportion of it known as takoli.”

102. Paragraph 70 of the Report states—

“The zamindars of this district hold practically no privileges superior to those of ordinary malguzars, save that they render a quit-revenue known as takoli on their estates as a whole, while the malguzars render the full kamiljama on each village. They hold no sanads such as obtain in Chanda or Chattisgarh and save for the prestige of their position are in fact of little more account than ordinary malguzars.’

103. Kamta, Warud and Deori Kishori are expressly mentioned in this paragraph as falling within that description. These extracts place it beyond doubt that there is no historical foundation for this plaintiff's claims to quasi sovereign status. So far as he and his ancestors are concerned, they have never been anything but subjects and have always paid revenue to the ruling power and as regards the sanad my conclusion is that there was a sanad but that it contained no term abrogating the status of the plaintiff's ancestors as subjects liable to pay land revenue as before.

104. I turn next to the question of contract. The plaintiffs' contention in this behalf is that the kabuliyats taken from them at the 9 various settlements constitute contracts or binding engagements between Government and themselves under which the plaintiffs bind themselves to pay certain sums to Government for the period of the settlement and Government on its side undertakes not to demand more. They rely on the following cases: 6 ALL. 313,39 8 Bom. H.C.R (A.C) 140 at p. 5, 17 Bom. 40741 at p. 412, 18 Bom. 67042 at p. 676, 23 Bom. 51843 at p. 521, 25 Bom. 71444 at pp. 746, 751, 50 Bom. 698 (’27) 14 A.I.R 1927 Bom. 40 , 98 I.C 933 , 50 Bom. 698 , 28 Bom. L.R 1308 at pp. 705, 714, 48 Mad. 282 (’25) 12 A.I.R 1925 Mad. 355 , 85 I.C 419 , 48 Mad. 282 , 47 M.L.J 780 and 48 Mad. 586 (’25) 12 A.I.R 1925 Mad. 1134 , 91 I.C 82 , 48 Mad. 586 , 49 M.L.J 79 at p. 590. They also rely on some of these cases for the proposition that the settlement legislation, for example, the Central Provinces Land Revenue Act, in itself operates as a grant of the unclaimed or relinquished land revenue and thus gives them an interest in or over immovable property which cannot be acquired except on payment of compensation.

105. Before I deal with these cases in detail I will remark generally that none of them deal with what the plaintiff call confiscatory legislation. They are either cases between private parties or cases in which the executive Government has tried to go back on its own grants where there were grants or sanads, or on the effect of its own settlement operations. It is true the terms “contract”, “agreement”, “grant” and “binding engagement”, have been used in some of the judgments to describe the legal relationship between the parties, but with the utmost respect I am unable to subscribe to that if the intention was to apply those terms to the position we find in the cases now before me. I am clear that was not the intention in the majority of the cases cited.

106. In the Privy Council case 6 ALL. 313,39 the dispute was between two private persons and all that their Lordships said at p. 321 was that if a gift is unconditional at the time when the transfer takes place, conditions cannot be attached to it subsequently. But that postulates a gift involving a transfer of property. If I merely undertake not to claim in the future, profits or crops or, revenue which has not yet accrued, but which is to accrue in the future, there is no gift or transfer at any rate until the property comes into being. There may be a good contract or a binding engagement which will prevent me from going back on my agreement but there is no transfer at the time of the making of the agreement at any rate in respect of the future profits or revenue. Therefore, there is no right or interest in or over immovable property at that date.

107. The “agreements” or “contracts” or “binding engagements” relied on in the present cases are the Kabuliyats, Exs. P-4, 5 and 6 dated October 1920 in the one case (Ex. P. 6 is not dated at all but it can be accepted that it bears the same date) and Ex. P-E dated November 1924 in the other. The impugned Act operates from 1st July 1938 and consequently fastens on the contracts (if there be any) as opposed to a grant, between the parties made in 1920 and 1924 not to collect more than a certain amount of land revenue during specified future periods. Consequently, it does not operate on any interest in or over immovable property and, as I have shown, in so far as the Act fastens on contracts, it is not ultra vires because it has received the assent of the Governor-General.

108. An alternative argument was also put forward. It was pointed out that the Act did not receive the assent of the Governor-General till 6th January 1939—or at any rate the assent was not published till then—therefore, it did not come into being till then. But in spite of that, it operates restrospectively from 1st July 1938. Consequently, it fastens on revenues which had accrued due on 6th January 1939 and is therefore confiscatory in respect of this revenue. The assumption underlying this argument is that even if the Kabuliyats did not create interests in or over immovable property in respect of future revenue, it had the effect of operating as a succession of grants which came into being automatically the moment the right to the revenue accrued in each year. Or at any rate, the moment the revenue accrued due the plaintiffs obtained a vested interest in the unrealisable portion of it (unrealisable because of the Kabuliyats).

109. There are many answers to this. I have already dealt with the first, namely, that the interest in or over immovable property is the right to collect the revenue and that vis-a-vis Government the plaintiff has only a liability and not a right. If Government chooses for one reason or another to forego the whole of the amount it is entitled to demand, that is a concession or a gift on the part of Government which creates no rights in or over immovable property so far as the plaintiff is concerned. By the time the money becomes his it has ceased to have any connexion with the land and is merely a sum of money. It is just as if Government took the whole of the Kamiljama and then handed back a portion as “backsheesh,” or remuneration, or as a reward. The second answer is this. If the Kabuliyats are grants, then inasmuch as the grants have been reduced to writing one is governed by the terms of the documents. What do the documents say? I take Ex. P-5 as a sample.

“2. We “(i.e, the zamindars)” are responsible for the collection and payment into the treasury of the jama of any muafi plots situated in our zamindari which may hereafter be resumed by the Government, together with takoli.

3. We hereby further bind ourselves to abide by all the conditions entered in the zamindari Wajib-ul-arz now signed by us.”

110. There is not a syllable in this to suggest that anything flows from Government to the zamindar. It is merely an engagement by the zamindar to pay Government certain dues. That is not a grant, for the essence of a grant is that there is a transfer of property or rights. It must contain words of conveyance and these documents contain none. Apart from these Kabuliyats there is no other document, and, as I shall show presently, there never was any grant of the revenue. The third answer is this. Even if the Act does operate wrongly upon revenue which had accrued due on 6th January 1939, then it is invalid only to that extent. It is well established that when a statute is partly valid and partly invalid, then, provided the invalid portion can be severed from the rest, it must be upheld to the extent that it is good: see, 1941 F.C.R 12 (’41) 28 A.I.R 1941 F.C 72 , 194 I.C 357 , %ILR 1941 KAR FC 148 , 1941 F.C.R 12 (F.C), In re, The Hindu Women's Rights to Property Act at p. 31 and 1939 F.C.R 193 (’39) 26 A.I.R 1939 F.C 74 , 182 I.C 161 , %ILR 1939 KAR FC 165 , 1939 F.C.R 193 (F.C) at p. 213 and also Section 107 of the Constitution Act. The bad portion (assuming that to be the case) can be severed from the rest in this case, because the argument I am now dealing with attacks the Act only in so far as it affects revenue due up till 6th January 1939. The revenues due after that Act can easily be severed from the revenues due up to it and so the Act can and must be upheld in so far as it affects revenue payable after 6th January 1939.

111. Now to go back to the cases relied on 8 Bom. H.C.R (A.C) 140 at p. 5, 17 Bom. 40741 at p. 412, 18 Bom. 67043 at p. 676 and 23 Bom. 51843 at p. 521, all deal with what is known as the Dunlop Proclamation. Government had, at the date of the proclamation, the right to all trees and forests within certain areas. The proclamation stated that in order to encourage the growing of teak etc. in certain areas, Government would in future allow all persons, who owned trees on their private soil, and all persons, who reared them thereafter, to dispose of them as they pleased. This was construed by the Courts to operate as a grant by Government of their rights in the trees covered by the proclamation. After this proclamation Government endeavoured by executive action to go back on its “grant” and the Courts held that it could not do so any more than a private person.

112. But there is no grant in the present cases and no proclamation. All that Government did before the Land Revenue Act was to issue executive instructions to its officers not to recover the full Kamiljama from the zamindars and to take from them agreements or kabuliyats under which the zamindars (not Government) were to agree to pay certain sums during the period of the settlement. After the Land Revenue Act came into force, the hands of Government were still further tied and they are now prevented by reason of legislative enactments from going back executively upon sums fixed at the settlement. But none of this touches the Legislature and in so far as the hands of Government are tied by legislation, what the Legislature can do it can undo. This latter position is the one which arose in 48 Mad. 282 (’25) 12 A.I.R 1925 Mad. 355 , 85 I.C 419 , 48 Mad. 282 , 47 M.L.J 780 and in 48 Mad. 586. (’25) 12 A.I.R 1925 Mad. 1134 , 91 I.C 82 , 48 Mad. 586 , 49 M.L.J 79 Under the Settlement Rules Government was given the power to classify lands as “wet” or “dry” and to assess them accordingly for the period of the settlement. Government classified the lands in suit as “dry” in the first of the two cases. Owing to subsequent changes in the physical characteristics of the surrounding country this land became “wet” and Government endeavoured to alter its assessment accordingly. It was held that having classified the and as “dry” Government had no power to alter that classification during the period of the settlement. The same rule was applied in the other case.

113. 25 Bom. 71444 at pp. 746, 751 and 50 Bom. 698 (’27) 14 A.I.R 1927 Bom. 40 , 98 I.C 933 , 50 Bom. 698 , 28 Bom. L.R 1308 at pp. 705, 714 were both cases of direct transfers. In the one case Government sold a piece of land and set out in the deed that the revenue assessment was only a certain figure. It was held that Government could not alter the figure thereafter. In the other case there was a sanad and the question turned on the terms of the grant. As a matter of fact the decision there was in favour of Government but of course that makes no difference.

114. The expressions “contract” and “binding engagements” were used in 48 Mad. 586 (’25) 12 A.I.R 1925 Mad. 1134 , 91 I.C 82 , 48 Mad. 586 , 49 M.L.J 79 and 50 Bom. 698 (’27) 14 A.I.R 1927 Bom. 40 , 98 I.C 933 , 50 Bom. 698 , 28 Bom. L.R 1308 speaks of a “contract.” With the utmost respect I am unable to find any of the essentials of contract in these “engagements” though it may be convenient to refer to them as such. In the first place, the essence of a contract is that the parties should be free to enter into the contract or not as they please and no penalty is attached to either for a refusal to do so. But what is the position here? Under Section 86(1) of the C.P Land Revenue Act, the “proprietor” is free to accept or refuse to accept the assessment offered to him. But he cannot prevent his lands from being assessed and has no power to stay the settlement operations; also, if he refuses to accept the assessment offered to him, then under S. 89 the Deputy Commissioner is empowered either to let the estate in farm or to take it under his direct management. A transaction of this kind made and signed under duress, even when the duress is legal, can hardly be termed a contract.

115. Then again, what are the sanctions in the case of breach?—not an action for damages but a summary sale of the land free from all encumbrances. I think it is more accurate to say that the position after the passing of the Land Revenue Act is not that of contract but of statutory rights and liabilities imposed by the statute and regulated by it. Both sides are governed by the statutory restrictions imposed upon them. But, as I have said, what a Legislature can do it can undo. Even a grant can be altered by legislation. This is to be seen in the cases where Provincial legislation abrogating permanent settlements has been upheld. See for instance A.I.R 1942 P.C 8 (’42) 29 A.I.R 1942 F.C 8 , 199 I.C 1 , 21 Pat. 521 , %ILR 1942 KAR FC 1 (F.C) and Cl. 17(d) of the Instrument of Instructions, at p. 387 of Vol. 1 of the Constitutional Manual.

116. There is moreover another. If there was any “grant” in the present case it was made subject to reservation?, the relevant one for present purposes being an express or implied stipulation that the remission would not enure for ever but that it was liable to be, altered or resumed at will. (I shall deal with the evidence as to this later) 50 Bom. 698 (’25) 12 A.I.R 1925 Mad. 355 , 85 I.C 419 , 48 Mad. 282 , 47 M.L.J 780 and 17 Bom. 40741 decide that when there is an express reservation in a grant, effect can be given to it.

117. As to the Chanda Patent on which the plaintiff in civil Suit No. 1 of 1941 relies, the document will be found set out at pp. 180 to 183 of the Settlement Report of the Chanda District 1869. A resume of its history will be found at pp. 14 to 21 of Craddock's Note on the Status of the Zamindars of the Central Provinces. It appears from p. 21 that no patent was ever issued to each zamindar separately but that the terms of the patent were embodied in each wajib-ul-urz and the Chanda zamindars were encouraged to regard this document as the charter of their rights and liabilities. The only clause in it relevant to this case is cl. (16). “The revenue from—1. Land * * * shall be enjoyed by the zamindar.”

118. But no one questions that, and in any event it is clear that the patent is not exhaustive, for it is silent about the liability to pay takoli. Both plaintiffs admit that they are under a legal obligation to pay it, so it is evident the patent is not exhaustive. The question there, fore resolves itself into the old problem. Does an omission on the part of Government, or even a promise to that effect, to refrain from collecting the full demand which it is entitled to make, create an interest in or over immovable property? I do not think it does.

119. I do not intend to deal with the evidence about the reservations in the sanads regarding takoli at much length because the position is summed up in the letters filed by the defendant. On 12th June 1874, the Officiating 6 Secretary to the Chief Commissioner of the Central Provinces quoted Mr. Law, (a Commissioner in this Province) in para. 5 of Ex. D-1. In that quotation we find the following sentence:

“True there is nothing in their sanads to prevent Government from levying full tribute from them-Neither do their sanads secure continuance of stipends to those who now enjoy them.”

120. The letter is dealing with the jagirdars of the Chhindwara District, but later letters show that this was also the position in the case of zamindars except here and there. The Government of India replied on 15th August 1874, (Ex. D-2) and asked for a fuller investigation and here referred generally to the “tributes paid by the chiefs.” They wanted to make sure that the amount of this “tribute” had not been fixed in perpetuity. The Chief Commissioner replied to this on 16th October 1874, (Ex. D-8) and said:

“The first point is the interpretation of the Sanads as to the permanency of the quit-rents fixed at the time of the first Settlement in 1820. In all the Sanads with these Hill Jagirdars, a broad distinction is apparent in the terms confirming to them the villages and lands in their possession, and in those stating the quit rents payable by them — the lands are granted ‘to you and to your heirs for ever’ — unmistakably a conveyance intended to be perpetual; but the annual quit-rents are referred to as payable ‘henceforth’ or ‘hereafter’—that is from this time—without reference to permanency or perpetuity in much the same way as the monthly allowances, payable to the Jagirdars from the Government Treasury as stated to be payable ‘in future.’ However much the literal signification of the words may is extended one way or the other, the intention of the sanad seems clear; that while the rights in the lands were recognised and confirmed in perpetuity to the then holders and their heirs for ever, the quit-rent payments then fixed, and the monthly allowances granted, involved a settlement with the then living holders themselves only…. Where the intention was to convey a perpetual title it is clearly so specified; where it was to signify a settlement terminating with the lives of the then holders, or otherwise as policy or necessity might dictate, the words used are simply indicative of immediate continuity. At least this has been the interpretation put upon sanads of a similar kind in other parts of the Province, where the tributes or quit-rents seem to have been fixed more with reference to political than fiscal considerations proper to the time; and where the enhancement determined on has been in all cases so small as to be little more than nominal, being intended more to assert the right of Government to reopen and revise such settlements…. It appears to the Chief Commissioner that no tribute or quit-rent should be looked upon as fixed in perpetuity unless, in so many words, it is clearly so expressed in the sanads. The omission of such specific expression in the sanads, in connexion with the tribute payments, and their specific expression in connexion with the land grants only, would seem to be sufficient evidence of the intention of the grantor, and it has been accepted accordingly in all cases which have come up for decision during the general settlement investigations.”

121. Now of course much of this is merely opinion but in the absence of the grants it is impossible for me to construe them and unless he matter is to be excluded altogether I can only look to the manner in which they were construed and given effect to by officials who ad actually seen the grants to infer what they contained; and in so far as we find that he takoli has been revised from time to time and the right to do that at each Settlement is not denied by either plaintiff) I can only conclude that the sanads permitted this.

122. Exhibit D-4 is a much later document. It ??? a letter from the Secretary to the Government of India and is dated 23rd March 1892. The letter deals with objection raised by the zamindars to an enhancement of the takoli the letter refers to historical material from which it is evident that this takoli “though ??? is certainly not permanent,” and says; “It is thus clear that according to ??? practice the takoli is not exempt from ability to enhancement.” The conclusion sached on a survey of the material, much of which is referred to in the letter, is that there no permanency in the matter.

123. I need not re-quote the historical ??? referred to in these letters, but I conclude om all these facts that the grants or sanads ??? either express or implied stipula on reserving the right to alter or resume the ??? at will. The limitation about doing and only for the period of each settlement time later and was due to legislative action, and so this can be altered or modified by subsequent legislation. This completes the case except as regards ??? of court-fees and the frame of the suit which the defendant had raised. The Provincial Government had contended in its written statements that suits for a mere declaration could not lie because consequential relief could and ought to be claimed; also that ad ??? court-fees would be necessary. At argument stage, however, the learned Advocate-General waived all those objections said that, seeing the importance of the ??? and seeing that a decision could not be ??? indefinitely, Government was ??? to have the cases decided on the merits, that being so, I give no findings on those ??? for the reason that they are abandoned.

124. The result is that both cases fail and the plaintiff's claim in each is dismissed with its. As the cases are very complicated and ??? junior counsel's fees will also be owed in each case.

125. Suits dismissed.