Bombay High Court Reports

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REPORTS OF CA~ES I
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GO\' EH.~ i\lE~T l'ENTH1\ L PRE::i1'.
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'l'H£ 1ND1AN LAW REPORTS.
PUBLISHED UNDER AUTHORITY·
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T~.\BLE OF CASES REPORTED.
VOL. xn., p ART I.
um;.
B:ii rn 1.·. Bai M1foik-Hindu Law-Widow-Manager-Son's
·<YUJ-Ora,ul.son's widow .• 79
DIIJ .iraj v. Khat-AV Lad.ha-Limitation-A.et XIV. of 1859-
1 fX . of 1871, Secg. 1 and 22-" Instituted"-" Commenced"-
nfribut.u in-Partnership-Account . . . 97
· ;jr,.r1ii r . Jakana and others-Hereditary Office-Succession-Re-
.,.,umplio:1-Adverse possession-Limitation ... 172
1 :,,pal Ka,ilii l'. Ra.mabai-Suit 1ty a Hindu w-idow having a son-
l,i1T1< i/r,fion-Act XIV. of 1859-0ertificate of guardianship-
A.d XX. l)f 1864-Civ. Proc. Code, Sec. 73 . . . . .. . . . 17
Ila, !,ias Pur;oi otam v. Henry Gamble-English law applicable to
Hi n:l" .,- - Insurance- Valued policy-Overvaluation-Suhroga-
' ·. .• - _·•.,.,ictice-Povnts raised 01i appeal not taken in the Court
belnw-Civ. Proc. Code, Bees. 351 amd 353-0osts 23
Himmatsing 11. Ganpatsing-Hindu law-Maintenance . . . . . . 94
Hirji Jina. v. Na.ran Mulji-Practice-Appealfrom order-Dec-ree-
Oiv. Proc. Oode, Sec. 863 129
Ju,;ab Haji Ja.far 11. Haji Gul Muhammad-Registration Act VIII.
of 1871, Sec. 17, cur. 2 and 3, Sees. 18 and 49-Agreem,e-ntfo1·
purchase of immoveable property contemplating a futiire con.-
ueyance-Payment of earnest money .. . ... .. . . . . 175
Ke11hav Gopal v. Ra.ya.pa.-Partne1·ship-Right11 of a deceased pa1·tner
-.Adj'U8tment of a partne1'ship account-Payments by partner.~
-Presumption-&,ec1,tion-Seizzwe of partnership prope1·ty in
eucution against one partner ... ... •.• ..• . .. 165
Krishna.ji Vyanktesh v. Pandurang-The comp1vrati'.ve weight of
<mtlwrity of Mitciksha1·a and Mayuk/1,Q. in the Southern Mara-
~~~ . ~
Krishnarav v. Govind-Suit by one of two co-sha1·ers to ouat a tenant. 85
Kue.ha.ha. v. Pit6.mbardhari-Regulation IV. of 1827, Sees. 62 and
66 (a)-Title-Limitation .. . 15
I.A1.kahman Ramchandra v. S11J.'88va.tib6.i-Maintenance-A.ncestral
property-Hindu law-Purchaser bona-flde and for value . . . 69
Mah,bala.ya v. Timaya-Undivided Hindu family-Ancestral p1·0-
perty-Attachment and sale of the interest of 011e of the co-
parceners in. the undivided estate-Partition-PosResswn ••• 138
Mir ~muddin v. Zia-un-Niss6.-Sanction-Act XVIII. of1848-
8uwery-Act V. of 1843 ... ... ... ... . .. 156
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11 TABLE OJ' CASES REPORTED.
l'AOE.
M:iw Ali Akbar ,v. Abdul Latiff 8hustri-Practioo-Petilion f()r
ltJaVB to appeal to the Privy Council, and a certificate under J.ct
VI. of 1874, ,~cs. 5, 7, and 9 . .. ... ... ... ...
N1irayan v. Pandurang-8'uit for partition-Omission of a mort-
gagedfieldfrom claim-Subsequent suit-Civil Proc;durc Cud1:,
Sec .. ~-Limitation-&paration in living and B(pamfi,:m b!J
partdio11, .. . . •• .. . ... ••• ... . .. . ,. i ·t .1
Nilava. v. Rudraya-Registrat·ion .Act XX. of 1866, &c. 17-
.Agreement relating to a fa1nily a·1·range1nent . . . ... . ]{ !
Pandura.ng v. Krishnaji Vya.nktesh-The c01nparatfrc w, i']ft of
autlwrity of Mitak1SharaandMayukha in theSoutl,e,..,~ Mar h'-"
Co1mtry . . . .. •.. . •• ... .. . ... ..• o5
Parakh Govardhanbhai v. Ransordas-.Act XXI. of 184-8-BMnt IIJ
Act III. of 1865-Hindu Law-Wagering contracf~-Aye,.i·!J
-Pa·r tnership ..• ... .. . . .. ... ••• ... 51
Prabhakar v. Pandurang-llfortgagee ·in possesswn-Accouul .. 88
Ra.mabai Sa.heh v. Appa.-Jurisdiction-Agent'sC01,rt-S,1 if ogni11~,
a Sardar-Practu:c-Point not ·rai.sed in the Lower Cowrl., ... Ja
Ramabai Saheb v. Gopal-S1iit by a Hincfa widow having <' s,m-
Itimitation,-Act XIV. of 1859-Cert.ificaw of 9u~rtli,i11si,,1,-
Act XX. of 1864-Civ. Proc. Code, Sec. 73 ••• . ... •. 17
Ramchandra. Ballal v. Baba. Esgonda-Decree-Eucutio,1,-AJ,; ·/:{:1,
tion after dl:!cree-.Act XXIII. of 1861, Sec. 11-Jfurt::,:J,.
l'ossesswn--Redemptio1l... .. 163
Ravji Shivram v. K1ilunim-Decree-EJ:ecution-Application aJla
decree-Act XXIII. of 1861, Sec. 11-.Mortgage-Rede-mption. l60
Reg. v. Gula.m Abas-Ori11l. Proc. Code, Sees. 273ar,d453-Appeal-
Aggregate sentence .•• ... ..• ... ..• ..; 148
Reg. v. Ramajirav-bi,d. Pen. Code, Sec. 21, cl 9, and Sec. 193-
Public Servant-Otficer-lufpltatdar-Orim. Proc. Code, Sees.
455 and 456-Chai·ge-Oonvictim• of offencs not charged--
Re-trial . . . I
Sokabai v. Lakshmiba.i~Practice-Costs-Payment ofthe cos(,8 uf n
summons not a condit1-011 precedent to proceeding with tlto suit. 9
Suganchand v. M.Ichand-Jurisdiction-Lette1·s Parent, 1865,
Clause Xll.-Cause of actio·n--Huni!,i-Oonsidemtwn-Usage
of Shro.ffs . .. .. . ;.. . .. . .. . .. . .. . .. 113
Suleman v. Trikamji Velji-Vendor and purchastl'-Sale ofland-
specifo:atiun of urea-Mi.sdescriptwn ... 10
Trimbak Ra.nu ·v. Nana. Bhavani-RegulaHon XVII. of 1827,
Sec. 7, cls. 1 ,ui..d 2-Bombay Act I. ofl865-Ri9ht of occupa-
tion-Miras land-Bm·den of proof H4
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CASES
DECIDED IN THE
IDGH COURT OF BOMBAY.
[APPELLATE 0BIMINAL JuBISDIOTION.]

1875.
February 10.
The Appeal of the Government f/ Bombay.
R:so. v. RA'n'mu'v JIVBA'n&'v and another.
TM Indian PeMl Oode, St.ction 21, Ola~ 9, and Bedion 193-Public 8er-
Mnl-0jtett"-b.d.plwdd.r-The Oode of Oriminal Procedure, Section, 455
and 456-aharge-Oon11ietion of offence not charged-Re-trio.l.
The word "officer'' in Seotion 21, Clause 9, of the Indian Penal Code means
a penon employed to exercise to some extent a delegated function of Govern,
ment : be must be either him8elf Bl'Illed with some authority or repr.en,
tative character, or hia duties muat be immediately auxiliary to those of eome
one who is eo armed. Hence an luiphatddr, i. e., a lessee of a village who hall
undertaken to keep an account of its Forest revenues and pay a certain pro,
portion to the Government, keeping the remainder for him.self, ia not an officer,
and, therefore, not a publfo aervant within the meaning of Section 21.
The making up falsely of acoounts with the int.ention of producing them
before a Forest officer not empowered by law to hold an investigation and
take evidence is not a fabrication of falae evidence within the meaning of
8ec,tion 198 af t.he Indian Penal Code.
Where a person Wllll charged by an Aaaiatant Seaaion Judge with (1) at.
tempting to commit criminal breach of trust aa a public servant; (2) fram.
iDg u a public 16J'Vant an incorrect document to cause an injury; (3) fram.
iDg ae such public iiervant an incorrect document to eave a pen,on from
puniahment, and waa acquitted on the ground that hewas not a public servant,
though the Judge found that he had framed the document with a fraudulent
intmt,
Tbe High Court held that the Judge ought to have convicted him of at-
tanpting to cheat under Sections .Si, 456 of the Code of Criminal Procedure ;
and, as the ucta which he would have hnd to meet on that charge were the
- M he had to meet on the charge of criminal breach of trust, allowed the
objec&laD 11,ged at; the bearing, though not distinctly taken iD their appeal
'1 tbe GGYernmen', and ordere4 a re-trial of the accUHd.
•244--4
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4 OOKBA~ itlGH COURT REPORTS.
1876. Branson and Hon'ble Mandlik for the acquitted accused.

RIIO. Bran,on :-The accused No. I ·is a mere lessee. His
R.i'M.l'~u'v rights and liabilities aroso out of the contract with Govern-
JIVB.t.'mu.'v ment, not by virtue of any office or employment. A person
whom the law considers as subject to an income tax is bound
to account for his profits and income; but he cannot, there-
fore, be an officer. Section 21 distinguishes officers from per-
Sons who are public servants.
Mamdlik :-The Government in their appeal to this

Court do not urge that the Judge below committed an error
in not finding the accused guilty of attempting to cheat ;
and the Government Prosecutor cannot take the objection
now. In Reg. v. Abdul Sciheb (a) MoBGAN, C.J., and HOLLO-
WAY, J., held that, although the Session Judge might have
allowed convictions for some offences for which the accused
were manifestly guilty to stand, they would not, in the exer-
cise of their discretion, reverse the acquittal under Section
272. With regard to the argument that Ramajirav should
have been convicted under Section 193 of the Penal Code,
the forest officer was not by any law empowered to collect
dues.
February 8rd.-W 11:sT, J. :-We are of opinion that the
word "officer" in clause 9 of Section 21 of the Indian Penal
Code ia used ina definite sense. It is not superfluous (the
words "whose duty it is as such officer " sufficiently show
this), and is not merelyequivalent to the word "person," which
occurs in several clauses of the same section. We do not think
that the fact of certain duties being enumerated as constitut-
ing one, who is an officer, a public servant, necessarily has
the effect of making any one, on whom any of thoae dutiea
devolves, an officer. Two things must combine to meet
the requirements of the clause quoted above. In the first
place, there must be an officer ; and, in the second, he must
be under an obligation to perform one of the duties there
enumerated.
(a) 10 .Mad. Jar. 6'
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B<>JmAY moii coun uroBTS. 5.
We must, therefore, see who is an officer. 'It is clear 1875.
that it is not every one who has to do with Government. in Rm.
pecuniary matters, or who has to render accounts, or to sub- RA'.;,~
1RA,.,
mit documents, who is a Government officer. Seeking the J1vBA'.11:u'v
help of English law, we find, in Ba.con's Abridgment at Vol.
6, page 2, the article headed " Of the nature of an officer,
and the several kinds of officers," commencing thus : "It is
said that the word 'officiom' principally implies a duty, and,
in the next place, the charge of such duty ; and that it is a
rule that where one man bath to do with another's affairs
against his will, and without his leave, that this is an office,
and he who is in it is an officer." And the next paragraph'
goes on to say : " There is a difference between an office and
an employment, every office being an employment; but
there are employments which do not come under the deno-
mination of offices; such a.s an agreement to make hay, herd
a flock, &c.; which differ widely from that of steward of a
manor,'' &c. The first of these paragraphs implies that an
officer is one to whom is delegated, by the gupreme autlio-
rity, some portion of its regulating and coercitive powers, or
who is appointed to represent the State in its relations to in-
dividual subjects. This is the central idea; and applying it
to the clause which we have to construe, we think that the
word "officer'' there means some pel'lfOn employed to ex-
ercise, to some extent, and in certain circumstances, a dele-
gated function of Government. He is either himself armed
with some authority or representative character, or his dutiea
are immediately auxiliary to those of som~ one who is so
armed. Dt.Bhmukhs and Deshpande8 would thus bo s~·
cien lywithin the meaning of the clause, t hey b m, ppumt~d
to perform for the State a. portion of its iunctious, or to uitl
thoise who are its active representatives, but not an ];;6.phal•
dt.i.r or lessee such as the accused. In conl:!equenco of rnmo
d' pute pending between him and the Government, the po •
ion of a village is withdrawn from him, but it i6 re-
s ored to him on his undertaking to keep accounts of the forest
revcnu and pay five-sbcteenths of the proceeds to the Go•-
enu.ucnt after making, in the first place, a certain deduc-
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BOKBAY HIGH COURT lll'ORTS.
1875. tion, namely, of one-third of the receipts, for himself. He

Rm. is, we think, not an officer, but a mere contractor bound by
..,AAKA
., ~·Jlll.l,V his engagement, but not, by the terms of an office or em-
JIVli'Juu.'T. ployment, to pay a certain proportion to Government.
There is no delegation to him of any authority for coercion
or interference, nor is he an assistant appointed to help
any one who is vested with such authority. He appears to
have had the rights only of a private proprietor, and to
have exercised them entirely at his own discretion. It de•
pended entirely on him to allow any person at all to cut tim-
ber within the limits of his village. He could make his own
ierms. He was bound by his agreement to give passes to all
who cut timber in order to prevent fraud on the Govern-
ment, but the penalty for omitting to give these passes was
that the timber taken without them was to be treated as
Government property, and thus be subject to a second pay-
ment. A collateral undertaking of this kind did not make
him.an officer, nor did his undertaking to keep accounts.
These were contractual duties, fraudulent deception in dis-
charging which might snbject him to punishment for cheat-
ing, but not duties attached to any office conferred on him
or his predecessor in title, failure to perform which with in-
tegrity could make him liable, as an officer, to the special
penalties prescribed for delinquent public servants.
February 10,-The fabrication of accounts in this case, if

they were fabricated, was not a fabrication of false evidence
within tho meaning of Section 198 of the Indian Penal
Code. To fabricate false evidence is to do something which
sati:sfies the definition in Section 192, and to this it is essen•
tial that there should be an intent that the false entry or
st.at~mcnt should be nsed "in a proceeding taken by law be•
fore a public servant as such." It does not appear that the
forest officer, much less that his subordinate, was empowered
by law to hold an investigation and take evidence in any
matter at all. His functions seem to be purely ministerial,
and no proceedings, by way of investigation, being provided
for and regulated by law, the statement laid before him,
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BOMBA y mon COURT BDOJtTS. 7
though false, would not be false evidence fabricated so as t.o 1875.
expose the fabricator to the penalties of Section 193. RIIO.
The point last t.aken is that the Assistant Judge ought to RA'KA-r~'v
JIVBA'Jm.f.'V
have convicted the accused severally of attempt at cheating
and abetment of that offence. This point was probably not
present to the mind of the Government Prosecutor when he
drew up the appeal, although in a vague way it is covered
by his fourth ground of objection, and we should not have
ellowed it to be argned, had we thought that the accused
would thus be unfairly prejudiced. But we do not think
that they are unfairly prejudiced, and further time has not
been asked for by their advooate on the ground of surprise.
We, therefore, proceed to consider the objection on its
merits.
Section 456 of the Code of Crimirial Procedure, taken with
Section 455 of the same Act, would, we think, have enabled
the Assistant Session Judge to convict the accused in this
case of attempting to cheat and abetting that offence, though
they were not directly charged with these crimes. The legal
character of the acts done by them might well be considered
ambiguous, and the evidence given would apply to the one
offence as well as to the other. In being called on to rebut
the charge of attempt to :commit criminal breach of trust
and of abetment, the accused had to meet the same facts
as if they had been charged with attempt to cheat; it was
only the legal aspect of them that would be varidd in the
two cases. This being so, and the Assistant Session Judge
having held that the accused had in fact falsified accounts
in order to defraud the Government, we think he ought,
holding the view h~ did, to have convicted the accused
nuder the provisions of Section 456, though it would have
been still better had be acted on the suggestion of the com-
mitting Magistrate and prepared charges of attempt at cheat-
ing and abetment of that offence. It would be, we think, a
wrong exercise of our discretion, if we did not, in such a
oue, order a re-trial of the accused, and we, accordingly~
c1irect that they be re-tried.
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~8 B0XB4Y HIG!t C0t1BT REPORTI.
1876 TJsis re-trial is ro be held. by a different Court, but, as held,

Rm. for the purpose of Section 473, in the ease of &g. v. Gu'Lfb-
:a...·....~;w.•v das KuberdaJt (b}, a different court is, we think, constituted
J1TBA'JD1A'v. by the Session Judge from that of the Assistant Seuion
Judge. His mind is as likely robe free from prejudioe a.a
that of any other judicial officer; and looking to the defini-
tion of Criminal Court in Section 4, the requirement of the
law will thus be satisfied at the least cost of public and
private inconvenience,
Order cucordingly.
[ORIGINAL CIVIL JURISDICTION.]
January 19. Suit No. 138 of 1871.
M1BZA' ALI AKBAR, KM.n Bahadur . . . . .. Appellant.

ABDUL LATIFI!' SnusTRI and others •• • .. • Respondents.
Practia-PetUi<ln/or kaw to a!'Pffll to tM Privy OouncU, and a c m ~
tmder .Aet YI. o/ 1874 &ctiom IS, 7, and 9.
I N WxBT,J.,)
reply to a question ro the Court (WBSTBOPP, C.J., and
on the point of practice, by Soobl,e, A. G., who
represented one of the respondents :
W1snoPP, C.J., said :-We think that the petition itself

should distinctly state what the substantial question of law
is that it is proposed to submit to the Privy Council, and
that, at this side of the Court, all petitions for leave to appeal
to the Privy Council should be signed by counsel, and that,
at the other side of the Court, such petitions should be
·signed by counsel, or a pleader.
(b) 11 Dom. B. c. Rep. 98.
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BODAY HIGH COURT REPORTS, 9
[ORIGINAL CIVIL JURISDICTION.]
Suit No. 814 of 1873. 1875.

January 28.
SoKA'BA' 1 Plaintiff.
•••.•• ~.. • • • • . • .. •. • • • • • . • • • . . • • • • . . . • • •
LAKsRM1BA.'1 ................................. ••• Defendant.
Pra.ctice-<J08U-Pagmmt of the cosu of a aummona not a cond.ition precedent

to procuding with the Suit.
The Court will not order, as a condition preoedent to proceeding to the
.bearing of a auit, the payment of the oosta of a aummona adjourned from
chambers into court and there dismissed with ooeta.
&-0ble, A. G., on behalf of the defendant, moved on affida-
vit, and after notice of motion, tha.t ·the plaintiff should be
ordered to pay the costs of a summons in chambers before
:MARB101"1', J., and adjourned by him into Court, and there
dismissed with costs, as a condition precedent to proceeding
to the hearing of the suit.
Iwvera,ri,ty for the plaintiff :-The Court has no power to

make such an order, especially as the summons was dis-
missed on technical grounds, not on the merits. There is no
allegation that the defendant has not exhausted her remedy
by attachment. The only case in which the payment of
costs is made a condition preoedent is when another suit is
brought on the same cause of action: Gibbs v. Goles (a),
Sh<,redicke v. Gilbard (b), and Aime v. Ohinnock (c).
Scoble, in reply :-The plaintiff is purposely keeping out
of the way. The rules of practice here are not so stringent
as those in the common law courts in England. The High
Court in this country absolutely controls the ea.use lists, and,
therefore, has power tt> say that this case sha.11 not come on
until the plaintiff shall have paid the costs of the summons.
These costs were incurred by the action of the plaintiff her-
in taking out the summons in chambers, which was
,iubsequently dismissed.
(a) 7 Dowl 325, (Ii) 8 Dowl. 296. (c) 8 Dowl 786i
JI 244,-b
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JO BOJOAY HIOB COtiJff ~ .
~~ BATLIT, J. :-The learned Advocate-General bas cited no

Sou'a.', cue as an authority for the making of sn~ an order as that
w:u:i.ru'r. for which he asks, while, on the other hand, though in two
of the cases cited by Mr. Inverarity, viz., Gibbs v. Golu and
Aime v. Ohiwnock, the circumstances relied on by the connsel
asking for the order were considerably stro~r in his
favour than they are in the present case, yet the orders
were refused. The defendant appears to me to have taken
quite a mist.aken view of her position. J must, therefore,
refuse to make any such order as that for which she asks.
Tho costs of this application to be borne by the defendant.
[ APPELLA'J'.E 01 VIL J U,RISDIOTION.]
Februar7 to. Special Appeal No. 82 o/lS.74.
Sm,»MA'N VA'nu and three others ...... ... Appellllfft.11.

TRIKAMJt V ELJI ............................. •Resp<mde1.1,t~
r ffldor and Jlwrc1toffl,.....sak of land-Sped~ of a M J - M ~.

The epeoifioation in a deed of sale of land of the area of the llui<l sold prim4
f<uw implie11 that \he area waa regarded ae material by tho partiee, and, un-
1- it I, alear that the P"'°*' area was not regarded as mat.erial, propo~
oompeneation will be awarded to the purchaaer of land. \he real area of which
la found to fall abort of the area 11pecified in the deed of sale.
TB IS was a special appeal from the decision of Dell.

IArpent. Judge of the Distri<'t of Poona, amending \he
dt-eree of the late Court of the Principal Sadar Amin vf Poon•.
The material facts of the case are briefly as follows : -
On t.h<- 17th &-pkmber 1S63, Ladha Ibrahim, whom the
appellants 1'"pl'E'eent, p o ~ from one Ram{bai
!'lp('('ial
a &ld callt'\l Obor\:hilla for R." ~999. On the !6th Sept.em-
bef' following bt' sold it l\l the plaintiff, now special respon-
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l30MBAY HIGH COURT REPORTS. 11
dent, for Rs. 19,999. The deed under which the sale to 1875.
----
the plaintiff took place begins by reciting the purchaae SuLBMA.'N
from Ramabai as well a.s the purchaae by the latter from one VA'DU
"·
Usaf, the original proprietor. It specifies the boundaries, TRIIU.JUl
V.11LJ1.
gives the measurement of the field as 30 acres and a little
more, the same quantity as was mentioned in the previous
deeds; an:d at.ates the price to be at the rate of Rs. 500 per
l>igha. • ft is admitted by both parties that the right mea-
surement of the field is only 19 acres, but this was dis-
covered by the plaintiff in 1865 when he took possession
from the vendor's sub-tenant. The plaintiff, therefore,
brought this suit, and prayed that the sale might be can-
celled (which prayer he abandoned in appeal before the
Judge), or if that could not be done, claimed Rs. 7,000
damages.
With respect to damages, both the lower courts agreed in
awarding them.
The prii1cipal question raised in the High Court was a.s
tb whether the aw,rd of damages was proper.
The speoiA1 appeal was heard by WEST and NA NA 1
BBA 11
1
lwn»A'e, JJ.
'l'arra/n (with hit11 Hon'ble Mandlik) for appellants :-
Ladha sold to the plaintiff what he bought himself, viz., the
field Ohorkhilla, contained within certain boundaries. Thia
de6eription, which is identical with that contained in the pre-
nous deeds, is enough to identify the land, and the mention
0£ the nrea. is surplusnge. A:n error in it does not affect the
transaction, which was completed by the full payment of the
purchase-money. A:nd it is conceded that there is no fraud.
Falsehood without fraud is not actionable : Oollin11 v. Evans
(a), Kennedy v. Panama, New Zealand,and Austral-ian Royal
Mail Company, Liniitecl (b).
Starling (with himinverarity)for the special respondent:-
What the plaintiff contracted to purchase was 30 ac,res at
R • 600 per bigha, and this he did not get. The mention
A biylul, iii about i of an acre.
(a) 5 Q. B. 820. {b) L. R. 2 Q. B. 580, 566,
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BOMBAY HIGH COURT REPORTS.
__1s_1s_._ of the same quantity of land that the vendor had himself
bought makes no difference. A purchaser is entitled to
v. recover part of his purchase-money when the property has
TRIKAMJI
VxLJI. been misdescribed unintentionally : Dart. 124,597; Sugden
27,31, 325; Whittemore v. Whittemore (c). A substantial
misrepresentation, such as this, entitles the plaintiff to be re-
lieved: Dimmock v. Hallett (d), Aberrnanlron Works v. Wic-
kens (e), Demy v. Hancock(!). A conveyance of too much
may be rectified after the purchaser has entered into posses-
sion: Townsend, v. Stangroom (g), Oarpmael v. Powis (h)
referred to in Dart. 683; Garrard v. Frankel (i); Harris
v. Pepperell(;).
WEST, J., delivered the judgment of the Court. After
disposing of a preliminary point, he said :-The land sold is
described in the conveyance as containing 30 acres. It ap-
pears to have contained only 19 ac1·es. This is a very
material discrepancy ; but it is so.id that the specification of
the area following the statement of the survey number and
boundaries was a mere matter of description, and that an error
in this respect, after the transaction had been completed,
affords no ground for compensation. No case precisely on
all fours with the present one has been cited to us from
the English reports. In Whittemore v. Whittemore there
was an express provision against annulment and for com-
pensation in case of misdescription. The question was
whethertheoperationof thiscondition was excluded by another
which in terms excluded compensation on account of
any error as to quantity. Those cases in which a deed,
failing to express the real intention of the contracting
parties, has been relieved against, rest on a. principle not
quite applicable to the one we have to deal with. The ques-
tion seems to be whether the area of the field, as specified,
was an essential part of the consideration for the payment
made by the plaintiff, or whether, although the area is set
down as matter of description, he bought and took the field
as a particular object, identified and estimated for the pur-
(c) L. R. 8 Eq. 603, (d) L. R. 2 Chan. Ap. 21. (e) L. R., id. 101,
(/) L. B. 6 id. 1. (!J) 6 Vee. Jun. 333. (h) 10 Beav, 36.
(i) 30 Beav. "5. (j) L. R. 6 F.q. 1.
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BOllBAY HIGH COURT REPORTS, 13
pose of the contract independently of the circumstance of its __1_87_5_._
area being or not being so much as 30 acres. Prima f acie SuLDU.'N
VA .DU
the specincation of the area implies, we think, that the area.
"·
TluXAJIJl
is regarded as material by the parties, and is the quality, or VBL.JI,
One of the qualities, specially had in view as the basis of
their contract. The Roman law gave an action e:i: empto in
such a case : " Et quidem tenet-ur er. empto. venditor etiamsi
ig,toraw~rit minorem fundi modum esse '': Poth. Pan. L. 19 T,
I. Section 68. Paulus is cited in the next section to the same
effect. Pothier himseli lays down the principle of propor-
tional compensation in his Traite de V ente, Section 258 ; and
Sections 1617, 1622 of the Code Civil embody a similar rule.
It appears to be founded on justice, and to be the one which
should be applied in all such cases, except where it is clear
that the precise area was not regarded as material.
We, therefore, confirm the decree of the District Court
with costs.
Decree confirmed.
[ APPELLATE CIVIL JURISDICTION.]
Special Appeal No. 362 of 1873. February 10.
R.urA'BA'I SA'HEB PATVAR·} Defendants and Appel,.

DB.AN and another . . . . . . la'Tl,ts.
APPA' and others ............ Plaintiffs and Respondents.
J~Agent'a Court-Suit a9ainst a Sardar-Practice-Point Mt
raise.cl in tk Lower C'oum.
Creation of the defendant as Sardal' in 1867 cannot have a retrospective
eftect eo u to affect a suit instituted against her in the civil court in 1861
ad to render the decree of that court one without jurisdiction.
A point not raised in the C01l1't8 below, was diaallowed aa being too late
when nmed in the special appeal for the finrt time.
THIS was a special appeal from the decision of R. F.

Mactier, District Judge of Sata.ra, reversing the decree of
llukund BI.U.ji, Second Class Subordinate Judge of Tasga11DL
•
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14 BOKBAY HIGH COURT REPORTS.
___ 187S. Api,' brought this suit against RamaMi Saheb and Rango
BAJU.'BA'rSA; Keshav to recover from them some land. The court of first
HU PATVAR•.
»HAN and instance t
hrew out t he c larm
. on t h e groundthat the plaintiJf
another.
'1.
failed to prove it. On appeal, the District Judge reversed
APPA' and that decree, and allowed the plaintiff's claim. In special
othen.
appeal, the following two grounds in the memora.ndum of
appeal were particularly urged : -
(c.) The lower court ignored the facts that there was
formerly a suit of ejectment by the present appellants against
their tenants, the present respondents, and in pursue.nee of
the decree of the Bombay Government, 25th March 1858,
the appellants were actually put in possession on the 6th
July 1859, and that for this reason the alleged vendor-,
Rango, could not be in possession at the date of the deed of
sale.
(g.) The lower court had no jurisdiction, inasmuch a.a
the suit ought to have been instituted in the Agent's Court.
The appeal was argued before WEBTBOPP, C.J., and KE11-
BALL, J., on the 10th Febl'llMY 1876.
SMntaram Nm-6,yan for the speci&l appellants.

Leith (with him Bkairavnath Mangeeh) for the special
respondents.
W:HTBOPP, C.J.:-The point as to pos8e88ion in clause (c)

of the memorandum of appea.l was· not raised in the court,
below, and is now too late. The point in cl&nse (g) of the
same memorandum, that Ramabai became a Sardar in i867,
8nd, therefore, that' this suit would lie against her in: the
Agent's Court only, and not in the subordinate civil courts
is unsustainable, inasmuch as the creation of her u a
Sardar in 1867 cannot be permitted to have a retrospec,tive
effect. This Colli't affirms the decree with cost@,
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~ y BIQH COu.&T BIBQBTS.
[ AWELt,A.T.& CIVIL JUB.1SBI01'.ION.]
Special ..d.ppeal No. 182 of 1874. 1815.

V ·1
.A.USHA &
8
•
BIN .&NKROJI
} , ,
FebN~ 15•
.and another ... ... ... PlQ/1,nti.ffs antl Appellants.
PrrA'llBARDHA'm and } Defendants and B,espon-
:GoVINDBA'v .. • ••• ••• ••• dents.
lugt,latiot& I,Y. of 1821, S«:tiou 62 aud 66 (~-2'ill.,-.LimitGlion.
All t.hat ., ._t UDder a coart'a eale UDcler Bega)ation IV. of 1827 (lib a
IIUBilar sale nnder the Civil Procedure Code) was the right. title, and interea
ot the judgment-debtor, whoae property waa proclaimed for ale, and it wu
quite open to a penon claiming such property aa hie own, to contest the
ript of ~e auotion,pnrehaaer (and thoee olaiming nnder him) to Interfere
wnb bia p<11111111ion at any time within 12 yeim of the ocaurrenoe of the dil-
turbanoe.
~ q was a spooial appeal from the decision of G. Ayerst,
Assist.ant Judge at Poona, reversing the decree of the
Principal Sadar Amin of the same place.
The special appe,J. was argued before Kxn.u.L and NA'NA'.
BHA'J llu.lDA1B, JJ.
/JAaira.tm.4th Mhl,geih for the appellant.
BMntarlrm Nfir6.fj(l/ll, (with him Ma11i1tiM Ja~aM.)
oontra.
The facts of the case fully &ppe&r from the following
jndgment of the C-Oart delivered by
KnBALL, J.:-ln this suit the plaintiffs sned for a declara-
tion of title and consequential relief in respect of a certain
house consisting of 5 double khans, alleging that the site of
the house WM given by Bundele to their ancestors some 75
yeal""l ago, when they built the house; that they subsequently
l t 6?i out of the I O kham,.~ to the second defendant, retaining
in their own occupation 3! khan.~ ; that the first defendant
forged a rent-not~, Exhibit No. G, bearing date 30th Novem-
ber 1868, purporting to have been passed by the plaintiffs
to him; further that their tenant, the second defendant,
collusively attorned to the first defendant, and that thus
ir po . c sion and title were ob. tructed. The defendants'
(n) Th c section.a have boon repealed by Act X. of 1861.
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16 BOllllAY HIGH COURT REPORTS,
1876. case waa that some time before the year 1856 (when Regula.
KusBA'&'BIN tion IV. of 1827 was in force), a. decree was obtained a.gain.at
s.ur.:;:~im Bundele when the land and house in dispute (as the property
PIT.a.'~BAR- of Bundele) were sold in execution; that one Baba1ji bin
DHA.'RI .u:» Sadoji became purchaser in July 1856 a.nd re-sold shortly
Go VINDRA. V, ••
after to one Bala31 Ganesh Bhide ; that the first defendant
purchased the said property from the said Bnlaji on the 17th
July 1872, a.nd that the first defendant leased 3! khalM of
the house to the plaintiffs and 6i khans to the second defen-
dant. The Subordinate-Judge, a.fter laying down several
issues, found that the house and site were the property of the
• plaintiffs ; that they were sold as the property of Bundele ;
that they never pa.sse<l to the auction-purchaser nor left the
plaintiffs' possession; tha.t the plaintiffs leased a. portion, con-
sisting of 6i khans, to the second defendant, and tha.t the
rent-note alleged to have been passed by the plaintiffs to the
first defendant, wa.s a. forgery (apparently with good reason,
seeing it is dated four years before the sale to the first
defendant), a.nd accordingly decreed in plaintiffs' favour.
Against this decree the first defendant appealed to the
District Court of Poona, when the Assistant Judge reveraed
the decree of the lower oourt, on the ground tha.t the suit
was barred, the reason being that, under Regulation IV. of
1827, sales under a. decree did not extend merely to the
right, title, and interest of the judgment-debtor ; in other
words, that property so sold passed absolutely to the auction-
purcha.ser, no matter whose property it actually was, or whose
it was declared to be, and tha.t as the sale took place in 1856,
the suit was barred by the lapse of more tha.n 12· years from
that time. But w~ cannot concur in the view ta.ken by the
Assistant Judge of the effect of sales under Regula-
tion IV. of 1827. Then, a.s now, all that passed was the
right, title, and interest of the judgment-debtor, whose pro-
perty was proclaimed for sale, and it is quite open to the
plaintiffs to contest the right of the auction-purchaser, or
those claiming under him to interfere with their possession
at any time within 12 years of the occurrence of the obstruc-
tion. There are several decisions of the old Sadar Court
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l!OMBAY RIOR COURT REPORTS, 17
bearing upon this point, which we think it as well to note-3 18i5.
Morris 53, decided 28th March 1856; 4 Morris 24, 15th May Kus!l4'BA'BIN
)857; 8 Harrington 232, 23rd September 1861; 9 Harrington SA:!ih!rand
294, 31st March 1862; 7 Harrington 132 ; 7 Harrington PrrA ?·MJIAR·
:!18; 7 Harrington 257; 2 Morris 51; and 2 Morris 262. DBA'IU AND
GOVINDRA'V,
The Assistant Judge h~ t.hrown out the case on the preli-
minary point of limitation. We must, therefore, in reversing
his decree, return the case that he may dispose of the appeal
on the merits. Costs to follow judgment,
LAPPELLATE CIVIL J URISD{CTION.]

Cross Special Appeals Nos. 271 and 338 of 1874. !ebruary 19.
N'o. 271.
GoPA L KA'sm ............ ... Defendant and Appellant.
0
RA.M.A 1 BA'ISA1HEB PATVAR- } . tijj·

Plam dD- d t
i s an Lw::spon en s.
DHAN an d anoth er ...
No. 338.
Ruu.'sA'I SA'HEB PATVAR-} . t,i~s an d A pmellan ts.
Plam
OHAN and ano ther ... r
GoPA'L KA'sm ............... Defendant dnd Respondent.
,,,.itby a Hiftdt1 ,oidow lwm,tg a Ron- ./,imilati011- A~ XIV. of 1859- Certi-

:t
ficat, oj r,Nardia11..Jiip;- Act X. o/ 186i---l'ivil Procedure Code, Sectm, i3.
In 1864 a Hindu widow, haviag a minor son, sued, in her own name aud
011 her owo behalf, to recover certain immoveable property. The action
wu brought on a le1111e which e2pired ia IBM. The defeadaat denied the
111- , and coateuded that the suit should be dismissed, as it could not be
mamtained by the widow in her owo uame. Jo 1871, the ion, who had in
tu meantime attained hit m~orit7 in 1866, ,ras made a co-plaintiff Oil
iUII oWJa application:
B 2-K-c;
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.
18 .BOMBAY UTGH COllRT REPORTS.
1875. ll~ld that the suit was barred, iollsmuch as it must, if maintaioable, be
Go;~LKA'SHI deemed to have been instituted in 1871, when the son was made a co-plaintiff
v. the plaint previously to that time having been io the widow's own name
ltA&!A'BA'i
SA'HEB PAT- and expressly on her own behalf, .
VARDHAN and Held also that sa the widow had no certificate of guardianabip, she WIIS pre-
another. eluded by Act XX. of 1864 from bringing a suit in her own name in respect
of h~r son's property, and that making the son a co-plaintiff in 1871 could
not change the character of the suit, as it bad existed previ_oua to that date
80 as to defeat the law of limitation.
Hekl (by Pin hey, J.,) that the minor was wrongly made a plaintiff in 1871.
I>urm Daa Panday v, MMUUmat Sham Soondri (6 Cale. W. R. P. C. H).
distinguished.
THESE were cross special appE!als from the decision of E.
Hosking, Assistant Judge at Satara, amending the de-
• cree of Vasudev Nilkanth, Subordinate Judge of Tasgauw.
Ramabai Sa.heh, widow of the late BMu Sa.heh Patvar-
dhan, in 1864, sued to recover possession of certain land in
Kasbe Bhilawa.di froni the defendant Gopal Kushi, and stat-
ed that the same had been let to the defendant in 1847
under a lease which expired in 1854. The suit was brought
by Rama~ai in her own name, and in her own right as the
heir of her husband, although she had, at the time, a minor
son, named Ganpatrav, who did not attain his majority until
1865. Oopa.1 denied the leaee, and contended that it was not
competent to Ramabni to maintain the suit on her own be-
half, and urged that it should be dismissed. On the 1 7th
March 1871, Oanpatrav was allowed, under Section 73 of
the Civil Procedure Code, to join the suit as co-plaintiff with
Ra.miibai. Thereupon the defendant contended that the
period of limitation should be calculated back from the .
time when Ganplltrav joined the suit, and that, therefore,
the claim was barred by the Limitation Act, as it was
brought after th" lapse of more than twelve years from the
time when .the cause of action accrued in 1854. Both the
lower courts held that Oa.npatrav was properly ma.de a co-
.
plaintiff, and that the claim was not barred by limitation, as
it was filed by Ramabai within the period of limitation.
They, accordingly, decreed in plaintiffs' favour part ef the
land, and rejected the claim to the remaining part, on the
ground that the plaintiffs failed to prove their right thereto
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IOHBAY HIGH COURT REPORTS. 19
In special appeal, .the principal contention was o.n the _ _!_8?_5·_

point of limitation .
The sgecial appeal was argued before SARGENT and P1N- "·
R,uu'u'1
S.+.'BEB PAT·
an, JJ., on the 19th of February 1875. V AB.DIIANand
another.
Bhairavnath Mangesh, for the appellant, contended that
Ganpatrav ought not to have been ma.de a party to the suit,
a.s his interest was not thereby affected within the meaning
of Section 73, Civil Procedure Code: Joy Govind Doss v.
Goureeproshad (a), Mussamat Khodeja v. Ahmed Hossein
(b). Ra.mabai could not be said to have brought the suit on
behalf of her son· while a minor, because she had obtained
no certificate as required by Act XX. of 1864, Section 2, nor
under Section 20 of that Act, could she maintain it in her
own name after the son's minority ceased. Moreover, if it
W&S a suit on behalf of the son, it must be considered .to ha~
been instituted on the 17th March 1871, when he was made a

party, and limitation must be calculated back from that
iime. The claim, therefore, was barred: Kishen Loll Chow.
dhry v. Ohunder Coornar "Roy (c), Manaklal v. Bluiskarrau,
S. A. No. 494 of 1871, decided by GIBBS and MELVILL, JJ., on
the 12th February 1872, Shivram V ithal v. Bhagirthibai (d).
Shan.Mram Naraynn for t.he respondents submitted that

the suit, though instituted by Ramabai in her own name,
might be regarded as brought by her on behalf of her son.
It was so regarded by the Privy Council in a case in which a
Hindu widow (plaintiff) adopted a son after the institution
of the suit by her for the recovery of her husband's share in
the family property : Dnrni Das Panday ·v. M11ssumat Sham
Soo-ndri. (e).
SARGENT, J. :-This action wasoriginallyinstituted by Rama-

Mi Saheb to recover certain lands, which had formed part
of the saranjam of her late husband, Bhan Saheb, on the
ground that.t,hey had been leased to the defendants in 1847
t-1 7 Cale. W. Rep. Ci ... R. 202. (b) 10 Cale. W. Rep. Civ. R. :\69.
W. Rep. for 1864, Civ. R. 152.
(t) C-alv.. (d) 6 Born. H.C. Rep. A.C.J. 20. 22
M 6 Cale. W. Rep. P. C. H.
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. 20 BOMBAY HIGH COURT REPORTS.
_ _1!5_._ for the term of sevefl years. It was brought in her own name,
GoPA'LKA'sa1 purported to be in her own behalf, and did not even men•
R.u,:'sA'i tion the existence of her son Ganpatrav.
SA'HEB PAT• •
VARDIL\N and
1U1oth~. The defendants, by their written statement, contended
that Ra.mih'i had no cause of action, there being a son
living. On 28rd December 1870, she made a representation
to the Court (Exhibit 80), in which she claims exclusively
in her own right as heir of her husband, her son not having
been acknowledged by the British Government. She further
contends that in any case her· son was the only person enti-
tled to take the objection to her title, and that he was living
under her protection, In March 1871, Ganpatrav was made
a co-plaintiff on his own application, notwithstanding the
opposition of the defendants, who filed a supplementary
written statement in July 1871, in which they contended
that Ganpatrb's interest was not affected by Ramablti's suit,
and that Section 78 was, therefore, not applicable. I entertain
but little doubt that, under these circumstances, the making
Ganpl\trav a co-plaintiff was an improper proceeding. As-
suming, however, that Ganpa.~v was properly made a party,
it could only be on the assumption that Rama.Mi was hence-
forth suing on behalf of her son, otherwise there would clearly
be a misjoinder of plaintiffs. Now the right of Ganpatrav, as
son of Bhau Saheb, was to recover possession of the lands in
question on the expiration of the lease to defendants. That
lease expired in 1854. Oanpatrav's right to recover posses-
sion of the lands would, therefore, have accrued at that date,
and his right of action, owing to his not having come of age
until 1865, would be barred in 1868. The suit, however, so
far as it can be deemed to be based on Oanpatrb's title, must
be deemed to have been instituted when he was made a co-
plaintiff in 1871, and was, therefore, too late. This is appa-
rent from the circumstance that the plaint had, previously
to that date, been in Ramab&i's own name as heir of her
lmsband, and was expressed to be in her own behalf.
Moreover, not having a certificate of guardianship, 11he was
-precluded1 by the Minors Act XX. of 1864, from bringing
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BOMBAY HIGH COURT REPORTS, 21
a suit in her own name in respect of her son's property, nor 1875.
could the making Ganpatrav a co-plaintiff in 1871 change GoP~;LK~'sur
the character
a of the suit, as it had existed, previous to that R AMA
v., ,
BA I
date, so as to defeat the statute. It was suggested by Mr. SA'HEB P..tT-
Shantaram that the suit might be regarded as having been VA.::irer~nd
brought in 1864, treating her now as a trustee for Gan-
patrav, and he referred us to the case before the Privy
Council, reported in 6 Cale. W. R. P. C. R. 45. There, no
doubt, a suit brought by a widow in her own right was.
treated as having been continued as trustee for her adopted
son after the date of adoption. There was, however, no
question of the statute in that ease, but merely whether the
widow could be deemed as having any title to Tecover in the
suit after the adoption, and the Court held that she had,
hold.in~ that she must be deemed to be suing as a trustee for
her adopted son. In dealing, however, with the question
of the statute of limitations, which arises in this case, it is
plain that Ramaibai could only be considered as suing as
a trustee for her son, from the time when Ganpatrav was
made a co-plaintiff with her.
We are obliged, therefore, to hold that the suit wa.ci barred,
· and the decrees of the courts below must, accordingly, be
reversed with costs on special respondents throughout.
PINH'EY, J. :-This suit was instituted, in 1864, by Ramabai
Saheb, widow of Bhau Saheb Tasganvkar, to recover posses-
sion of certain property in the possession of the defendant
Oopal Kashi, and said to have been leased to the defendant
in 1847 by the plaintitJ1s deceased husband.
Ramabai sued in her own right as widow and heir of her
late husband. She did not claim the property on behalf of
her infant son, nor did she mention that she had any son.
~oreover, as she had not been appointed administratrix of
her infant son's property under Act XX. of 1864, she was
not competent to maintain or institute this suit on her son's
behalf.
She admits that she had a son, Ganpa.trav, born to her in
1849. It is clear, therefore, to my mind that this suit was
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22 BOKBAY HIGH COURT R11:PORTS.
1875. not maintainable by Ramabai either for herself or for her

, K ,
GoPAL ASBI
infant son, and I am, therefore, of opinion that the suit should
v. have been dismissed.
RAKA'BA'J I
SA'BEB PAT· But in 1871, that is nearly seven years after thesuitwas filed,
VARDHAN and l d
• another. and when Ganpatr,v was 22 years of age, he W8.8 a lowe to
become a party to the suit, and was made by the Subordinate
Court a co-plaintiff with Ramabai. I am of opinion that it
was not competent to make Ganpatrav a co-plaintiff in the
. suit, either under Section 73 of the Code of Civil Procedure
or under Section 20 of Act XX. of 1864, and that, therefore,
his name should be removed from the record. R.amabai, by
her own showing, had no cause of action, and it was not, in
my opinion, competent to Ganpatrav, seven years afterwards,
·to come into a suit, which was bad in itself, and ought to·
have been dismissed years before, and import into the suit
a cause of action which should date back from the date on
which an unmaintainable plaint was filed by Rama.Mi.
Again, up to 1871, when Ganpatra.v was made a co-plain-
tiff, there was no cause of action before the Court on which .
the Court could award against the defendant. If Ganpatra.v
had any cause of action against defendant, he must be held
to have asserted it first in 1871, when he became a plaintiff •
on the record, for he cannot be said to have derived any
right through Ramabai, who up to that time was the sole
plaintiff on the record. But in 1871,. Act XIV. of 1859 was
the law of limitation, and under this Act, his claim was bar-
red. It is admitted by the pleaders on both sides that G&n-
patra.v's claim .was barred by limitation, if Act XIV. of 1859
applies to it, and if his claim dates from the time that he
became a party to the suit.
And, therefore, I also think the decrees of the courts
below should be reversed, and the claim dismissed with coi:;ts
throughout.
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BOMBAY HWH COURT REPORTA. 23
(ORIGINAL CIVIL JnRISIDICTION.] 1875.

February 22.
Suit No. 685 ef 1873 ( Appeal No. 259.)

•
HARIDA's Pt:RSHOTAM} ( Original Defcndant8) Appel-
and others...... . . . lants.
H KNR Y GAMBLE ••....••• ( Original Plainti;ff) Respondent,
E"'.}lwi law applicabk to Hindus--!Murance--Valud policy-~-
valualio1&-Subroga.Jion--Pradice--Points rc,ised on appeal oot takm in th'-
Court be!ow--Cii•il Proctdure Cork, Section;, 35 l and 353--Cosl<I.
Where the defendants, underwriters of a policy of insurance on goods on
board a VeMel bound from Bombay to Calcutta, were Hindus, but no principle
of Hindu law was applicable, the parties having selected the Engliah language
for the expression of their contract, Htul that the case was to he determined
in accordance with the principles of English law.
A valuation of salt, baaed on the loss which -the owner may p088ibly incur
on account of the bonds in respect of the salt passed by him to the Govern-
ment, though greatly in excess of the real value of the salt, is not such an
over-valuation as amounts to proof of fraud.
'Where, in a valued policy of insurance I the goods insured were valued at an •
amount greatly in excess of their real value, which amount was intended to
include the amount in which the insured was liable to Government on
account of bonds executed by him in respect of the goods insured, and after
1068 of the goods Government elected not to enforce the bonds, Held that
· the nuder-writers were entitled to be subrogated in the amount of the
bonds, and were liable to the insured only for the real value of the goods,
together with a fair profit.
The Appellate Court will not remand a caae for re-trial on a point' not
rai.eed in the court below, if the evidence alreaciy recorded is sufficient to
enable the Appenate Court itself to decide that point. But where the
Appellants mcceeded on a point taken by them for the first time in the
Appellat.e Court, they were ordered to pay the respondent's costs of appeal.
THIS was an appeal argued before BAYLEY and GREEN, JJ.,
from a decision of Sir Charles Sargent, J. .
Scoble, A. G., and F::wran, for the appellants.
Latham and Purcell for the respondent.
The facts of the case and the arguments of counsel are
fully stated in the following jndgment of the Appellate
Court delivered by
BAYLBY, J. :-This was a suit brought by Mr. Henry Gam-
ble as Official .Assignee of the estate and effects of Ratanji
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24 BOMBAy mo'a COURT REPORTS.
1876, Edal3i 8ottlewalla., an adjudicated insolvent, .to recovEir

HARIDA'e Rs. 11,000, being the amount for which the defendants
p·uRSHOTAM underwrote in Bombay a policy of insurance in the English
. v. •
~~Rv language and fotm, dated 5th June 1872, the insurance being
OA"'i:effected by the insolvent's agent, Msncha.rji Dorabji, for
· 40,000, and declared to .be upon 800 tons of loose salt on
boa the ship Regina, bound from Bornbay to Calcutta,
valued nt Rs. 50 per ton, free of particular average, unless
stranded, - - ~r burnt.
The plaint allegoo~at the ship with the, said goods on
board thereof saile<l on ~ i d voyage on or a.bout the 7th
June 1872, and that whilst th ship was proceeding on the
. \'oya.ge and during the continuan f the risk, the goods were,
by the perils so insured against, whol lost. The plaint fur•
ther stated that Rat.anji Edalji Bottlew la was adjudicated
an insolvent on 15th October 1872, and th~, by an order of
that date, h;s estate wn.s vested in the plaintiff.,,.Henry Ga.m hie.
• It then alleged that all conditions were fulfiried, all things
happened, and all times elapsed, neceAsary ~ entitle the
plaintiff to be paid the said sum of Rs. 11,000 by'e_defend-
ants, but that they had not pa.id the same. The J. nt also
claimed interest at 9 per cent. per annum from the If March
1873 till payment. ,
• The defendants, by their written ·s tatement, denied t}j.r lia-
bility to pay the plaintiff any part of the money claimed 1 the
plaint. They admitted that they subscribed the pol ic-_fr~~
the ,um of Rs. 11,000, but did not odmitthat Ratanj;
caused himself to be insured as alleged. They denied ·
the goods mentioned in the policy were shipped as all£
•1
or that Ratanji Edelji was interested therein, 'rhey de ,·
that the ship Rflgina sailed as stated, or that t e g
were lost as alleged, and they lastly sui<l, but without , v-
ing the defences before stated, that after subscribing
policy they discovered that the valuation of the said g
contained in the policy was a. valuation grossly in exce•
the real value of such goods, and they stated that
would contend that the said valuation was fraudulent,
•that they ought in no event to be held bound by such
BOMBAY HIGH COURT REPORTfl.
•· ·· ·.. iants saying that the maximum real value of _ I8_i_5_. _

;t .~! :n,-:: t,ioned in the policy was Rs. 10,000. HARrnA's
• PUIUIHOTill
,· ,; ,,,,, ,aeonforhearingbefore_ Sir CHARLES SARGENT "·
HENRY
, tt,. 111. ,h!y 1874, when the following issues were £ram- G.utBLE.
,: . ·-
. , ~ ._ .. Mancha1ji Dorabji was the agent of Ratanji

' '. ·· ci.lla for the purpose of effecting the policy of
·( j•:1 : 1u _; • C .,:ta.ted in the plaint?
\\lie : !Jer Ratanji Edalji Bottlewa.lla was interested in

me goods ment!oned in the plaint, asin the 4th paragraph of
the plaint mentioned?
3. Whether the valuation of the goods contained in the
said J>olicy was a frau~ulent one ?
}!r. Macpherson, who, with the learned Advocate-General,
appeared for the defendants, admitted the shipment of goods,
the sailing of the ship, and the loss of the goods.
The policy of the 5th June 1872, with official translations •
of the Guzerathi writing in the margin, and of the six Gnzera-
thi and three Marwadi underwritings thereto, a notice of the
loss, dated 30th August 1872, and two letters of demand,
dated 20th November 1872 and 6th September 1873, and a
copy of the manifest, were put in evidence on behalf of the
plaintiff; and Mancharji Dora.bji, the agent of Rstanji
t
Edalii Bottlewalla, and the person in whose ns~e the policy
had been effected, Mr. Thomas Lidbetter, who wrote the
1 otiet• of the 0th August 1872, after news of the cyclone had
rrh·ed, in which the ves el is supposed to have been lost,
anJ Ra tamji Ratanji Edalji, son of the insolvent, were
examin d on behalf of the plaintiff.
I,
J., Alter fr. Macpherso~ ~ad ad~essed the Court on behalf
,r
of the defendant , Mr.William Ma1dment, Assistant Collector
- of lt Revenue in Bombay, and Harkisan Jivanda.s, 11 mem-
ber of t o firms in Bombay, which were extensive salt deal-
r
en, w re examined on hehalf of the defend11nts. The vesting
· order and copies of three bonds (to be presently noticed)
put in evidence for the defence. Mr. Latham, on be-
of the plaintiff, ppea • from th
44-d
oogle
26 BOMBAY HJ(JJI COURT REPORTS.
1875. to ha,e tendered evidence of the price of salt at Calcutta,

----
HARIDA's after which the learned Judge found all the issues for the
PURBBOTAH
v. plaintiff, and gave judgment for the plaintiff for Rs. 11,000
HENRY with interest at 9 per cent. from the 1st March 1873 until
• Gusx...
judgment, with cost~ and interest at 6 per cent. upon the
judgment-debt.
Against such judgment the defendant!! appealed, their
memorandum of appeal stating the nine following grounds:-
1. That the Judge erred in finding that the interest of
Ratanji Edalji Bottlewalla in the salt insured by the policy
was July proved.
2. That he erred in finding that the salt was not fraudn-
leutly overvalued in and by the policy.
3. That he erred in not holding that the policy was
vitiated by reason of the fraudulent overvaluation of the salt,
and the plaintiff thereby precluded from receiving the
amount claimed in this action.
4,. That he erred in finding that the liability 0£ the obli-
gors under the bonds (Exhibits Nos. l, 2, and 3,) could
• legally be included in the valuation of tlie salt.
5. 'l'lmt he erre<l in finding that the liability nnder the
bonds was ft1tended to be inclmlod in the valuation of the
' salt.
6. That he gave no wt>ight to the fact tpat' the bonds
had not been enforced, and that the deposits made there-
under were refunded.
7. That he ought to havo hel<l that f.he plaintiff was not
entitled to recover more than the actual value of the salt, a8
proved a.t the hearin~ of the suit.
•
8. That he ought to have passed judgment for the de-
fendants with costs.
9. 'l'liat the decree wos contrary to equity, justice, and
• good conscience.
The appeal was argued before my brother GREEN ~nd
• mpelf in December la.<tt by the Advocate-General and Mr.
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.BOMB.\ Y HIGH f'OVltT REl'ORTfi.
Farran for the appellants, and by Mr. Latham and Mr. 1875.
Pnrcell for the respondent. HARmA's
PURRHOTAM
II.
In answer to a question from the Court, it was stated by HENRY
llr. Latham that this was a specimen case, and that there GAl\lBLE,
wa.s a consolidation rule as to other suits brought against the

other underwriters to the policy of the 5th June 1872.
Upon reference to the proceedings, we find that on the
9th February 1874, by a. Judge's order of that date, entitled
in the snit, and in seven other suits brought by Mr. Gamble,
as Official Assignee, against seven of the other underwriters,
and numbered successively suit 678 of 1873 to suit 684 of
1873, both inclusive, it was, upon reading the consent of
Messrs. Macfarlane and Skipsey, attorneys for the plaintiff
in all the abovementioned suits1 and of Messrs. M:anisty,
Fletcher, and Smith, attorneys for all the defendants in the
above suits, ordered that all further proceedings in such other
suits be stayed un~il a decree should be made in this present
suit, and that in case of an appeal by either of the parties
herein all further proceedings in the other suits should . be
stayed until a decree should be made by the Appellate Court
in this suit, the parties in such other snits undertaking to
be bound and concluded by the judgment that should finally
be made in this suit, unless the Court, whose judgmcnt
should form the judgment in this snit, should certify that •
.
such plaintiffs or defendants should not be bound thereby•
The present snit, therefore, virtually involves the right of
the plaintiff, as assignee of the insolvent Ratanji Edalji
Bottlewalla, to recover the aggregate amount underwritten
by the different underwriters to the policy sued on, viz.,
Rs. 40,000.
Upon the argument before ns it was contended on behalf
of the appellants either (1} that there was such an overvalua-
tion of the salt as to a.mount to £rand, in which case it was
coateoded that the policy would be void ; or (2) that the
IIJldsrwriters were entitled to be subrogated for the assured, .
ia reepeot of the goods ·assured; to such an extent as to render
them liable only for the actual loss sustained by the assured.•
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~8 BOMBAY HIGH COURT REPORTS.
1875. The counsel for the re~pondent, on the other hand, argued
HARIDA'll .(1) that the learned Judge was correct in holding tha.t the
Pt:RSHOTill
·v. liability of Rata.nji Edalji Bottlewalla's agent, Ma.ncharji
Ht;NRY
GAMBLE.
Dorabji, on th~ bonds (Exhibits I, 2, and 3,) might be ta.ken
into consideration by the assured in fixing the high value of
Rs. 50 per ton of salt, that there were no circumstances to
show fraud, and that the valuation could not be opened ; and
(2) that this Court ought not to entertain the question of
subrogation at all, inasmuch as 'the point as to subroga-
tion was admittedly not even mentioned during the hearing
before Sir Charles Sargent.
We entertain, however, no doubt as to our power to
• consider and decide such point, Section 353 of the Civil Pro-
cedure Code having enacted that " when the evidence upon
the record of the lower court is sufficient to enable the
Appellate Court to pronounce a. satisfndory judgment, the
Appellate Court shall finally determine the case, notwithstand-
ing that the judgment of the lower court has proceeded
wholly upon some other ground.''
Now, Mancharji Dorabji stated in his evidence in the
court below that Rs. 5,600, being the total amount of
deposit money at the rate of 4 annas per maund, paid by him
in Bombay when he signed the bonds for the customs duty,
was afterwards returned to him; and Mr. Maidment stated
that no duty is paid on salt exported from Bombay to Cal-
cutta.. Rs. 3-4-0 duty per maund, he said, are payable at
Calcutta., and that bonds are taken from exporters in
Bombay, and a deposit paid at 4 annas per maund, that the
deposit in the present case had been returned, and the bonds
which are in a penal sum fixed at twice the rate of the
Bombay duty, were not enforced in this case, Government
having ordered the deposit to be returned after inquiry had
been ma.de.
There is no necessity for us to remand the ease under Sec-
tion 351 of the Civil Procedure Code for further investiga-
tion. We concur in the remar~s of Sir Barnes Pea.cock, C.J.,
in Ji'uzeelun Bebee v. Omcla}i Bebee and another (a) that
la) 10 Cale. W. Rep. 469 Civ. Rul., seep 4il.
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BOMBAY HIGH COUl:'J' l(El'Ol!TS. 2 !)
"the object of the Act was that th~ Appellate Court should _ 1875.
not remand cases when it has the materials for dcU!rmining HARmA's
them itself. ,.. * * The object of the Legislature was
PlJRllHOTAM
v.
that litigation between the parties should come to an end as llllN"RY
llA.IIUILII:.
soon as it could consistently with justice."
It was, of course, further contended, on behalf of tho re-
spondent, that the underwriters wore not entitled to subroga-
tion at all.
It was stated by the learned counsel, who so ably argued
the case before us, and, so far as we are awu.re, correctly
stated, that there was no decision, either in England or in
India, in which the main question argued before us had
been expressly determined. It was, however, contended
that upon the principles laid down in some of the cases
cited, the appellants ought to have the Rs. 5,600 paid or
credited to them, and that they ought to be relieved from
any liability in respect of the three bonds which the obligees,
viz., the Government of Bombay, have not caused to lje
enforced, and apparently have no intention. of enforcing,
seeing that after inquiry they have ordered the deposits paid
on their execution, to be returned, and which deposits have
been returned to Mancharji Dorabji, Jho principal opligor.
Upon the fac~ proved in the court below, it was contend-
ed before us for the appellants that, taking the cost price of
the salt in Bombay, and adding thereto the maximum profit
of 25 per cent. upon the sale of the salt in Calcutta, that
being the maximum profit according to the evidence of
Ha.rkisan Jivandas upon salt exported from Bombay to Cal-
cutta, the real value of the salt would be a little over Rs. 3,000,
whilst Mr. Latham, on behalf of the respondent, did not
urge that the salt could, at Calcutta, be worth more than
about&. 7,000. Counsel on both sides, at the conclusion of
the argument, agreed that, if necessary, evidence could be
given either in this Court, or, in case of a remand, in the
court below, of the value of the salt in Calcutta.. The duty
to which the 22,400 m.cmnds of loose salt were liabl o in
Bombay amounted to Rs. 40,600. Mr. Maidmcnt, the .Assis-
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30 BOMBAY HIOH COURT REPORTS.
__1_s7_5_._ tantCollector of Se.It Revenue in Bombay, proved that no duty

HARIDA's is pa.id on salt exported from Bombay to Calcutta, but that
PURllHOTAII
ti. bonds are ta.ken from exporters, the penal sum in such bonds
HENRY
GillBLE.
being fixed at twice the rate of the Bombay duty. The three
bonds (Exhibits 1, 2, and 3,) a.re for the respective penal
sums of Rs. 36,250, Rs. 8,700, and Rs. 36,250, aggregating
Rs. 81,200. The bonds respectively recite that Mancharji
Dorabji is indebted to Her Majesty's Government of Bombay
in the sums of Rs. 18,125, Rs. 4,350, and Rs. 18,125 (aggre-
gating Rs. 40,600), being the excise duty on maunds 10,000,
2,400, and 10,000, in all 22,400 maunds of salt, which he has
a.greed and received permission from the Oollector of Salt
Revenue to remove from the salt pans in Te.luka Trombe.y,
I
for the purpose of exporting the same to Calcutta. per ship

Regina, and the condition of each bond is that if Me.ncharji
Dorabji and his two sureties, or either of them, shall produce
to the Commissioner of Customs, within four months after
the date of exportation, a certificate showing that the afore-
said quantity of 'Salt has duly arrived and been landed at
Calcutta, then. the obligation is to be void and of no effect,
but if they, or either of them, shall fail to produce to th.e said
Collector of Salt Revenue, within the said poriod of four
months, such certificate, whatever cause such failure shall
arise from, whether the act of God or othe,rwise, then the
obligation is to be and remain in full force and virtue.
Mr. Maidment stated that the amount of duty on the salt

payable at Calcutta was Rs. 3-4-0 per maund; and on
referring "to the Indian Tariff Act,'' passed by the Gover-
nor General of India.in Council, No. XIII. of1871,Schedule
No. 42, we find that the import duty payable on salt import-
ed from any place, whether within or without British India,
into the territories under the Government of the Lieutenant-
Governor of Bengal is Rs. 3-4-0 per mau.nd, whilst the duty
on salt imported into any other part of British India
( except British Burm.ah) is Rs. 1-13-0 per maund.
The duty payable at Calcutta upon t~e 22,400 mciunds.,
and which would a.mount to Rs. 72,800, would not, of
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BOMBAY HTOH COURT -nEl'ORTS. 31
cour!'le, be payable, unless the salt had arrived there. The _ _ ~~7_5._
ship Regina having been totally lost during the voyage HAR!DA'II
PUR8HOTAM
from Bombay, the obligors were unable to comply with the 1'.
condition in each of the bonds: the bonds were in fact for- 0 HENRY•
.utBLIC,
feited, and the Government of Bombay might, if they pleased,
have enforced them. Although the policy might have been
framed with.more appropriate terms to expressly include the
risk which Mancharji Dora.bji undoubtedly incurred in cnse
of the loss of the salt by the perils insured against, we agree
with the learned J udgo in the court below that such possible
loss may have been the reason why the value was fixed so high
as Rs. 50 per ton, and we concur with him in thinking that the
valuation having apparently been made upon the principle
that the risk on the bonds was included in the insurance, no
fraud was shown, and that the policy cannot be opened on
the ground that the sum inserted as the value of the salt
was so outrageo11Sly large as to make it plain that the assured
intended a fraud on the underwriters. Mr. Justice Willes,
in his ju<lgment in Lidgett v. Se,cretan (b) states that the
result of the decisions in England, as well as in the United
States, and, he believes, in North Germany, was that the value
mentioned in the policy is aoconventional sum not represent-
~ng the real value of the vessel (or goods}, but the sum to
be paid by the underwriters in the event of a loss.
The next question for our determination is whether, under
the special circumstances of this case, the underwriters are
entitled to the benefit, which, owing to the Government of
Bombay having returned the deposit, amounting to Rs. 5,600,
and to their having virtually cancelled the bonds, the as-
sured has undoubtedly received from suoh liberal action on
the part of the Government.
The difficulty arises from the fact that the policy in ques-
tion is a valued one. The defendants in the present suit are
described in the plaint as Hindus, residing in Bombay, and
the defendants in the seven consolidated suits appear, from
their names, to be also Hindus. This being a matter of
contract in which the defendants are Hindus, has to be
(b) L. R, 6 C. P. 61G, see p, 628.
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!32 BOMBAY ilGH COURT RF.PORTS.
__1_s7_5_._ determined in this Court under clause 29 of the old

HARIDA 80
Supreme Court Charter of 1823, continued in force by clause
PURSHOTAlll
18 of the Letters Patent of 1862 and clause 19 of the Lette
"·
HENRY
GAMBLE.
Patent of 1865, by the laws and usages of the Hindus, or by
such laws and usages as the same would have been deter-
mined by, if the suit had been brought and the action com-
menced in a native court, as pointed out by Sir Joseph
Arnould in Davlatram Shriram v. Bulakuuis Khemchand (c).
It was .not, however, contended before us, nor are we
aware, that the Hindu law contains anything which might
be considered applicable to the point now under considera-
tion. The policy on which this suit is brought is in English,
with which language the underwriters were apparently un-
acquainted, as of the nine underwriters six wrote their
subscription to it in Guzerathi and three in Marwadi. In
the absence of any Hindu law or usage the present case
must, we conceive, be determined according to the principles
0£ English law, and more especially as the parties to this
policy have selected the English language for the purpose of
expressing their contract. In Dva1·kadas Lalubhai v. Adam
Ali Sultan Ali (d), which was a special appeal from the Dis-
trict Court of Surat, the suit being brought on a policy of
ins.urance on goods shipped on board a native vessel for a
voyag.e from Surat to Kurrachee, Sir Richard Couch, C. J.,
and his learned colleague decided the case upon the English
authorities as to constructive total loss. In Martin v. Lee (e), .
which was an apµeal from Lower Canada, the question being
as to the construction of the word " children " in a will
made in the English language by a married woman domiciled
in Lower Canada, the Lords of tho Judicial Committee,
without, however, giving au express decision upon the point,
said :-" It may well be that this will, having been written in
the English language, the proper mode of dealing with the
case m&y have been £or the courts in Canada to ascertain
what, according to the English law, was the meaning of the
word' children' as nsed in the will, * * * resorting to
(c} 8 Bom. H. C. Rep. 0.C.J, 24.
(d) 3 Boru. H. C. Rep. A.C.J-1. (e) 14 Moroe P. C. 142.
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RO.MBA Y HIGH COURT RF.PORTS. 33
the foreign" (i.e., English,)" law or language for the purpose of 1875.
deciding the meaning of the words used in the willh (p. 155). HARIDA's
PuasBOTAK
What, then, have been the decisions in England (in India "·
h . d oes not appear as yet to have ansen
t. e pomt . ) upon thi s HE1'RY
OillBLE.
branch of the law of Marine Insurance? Under what cir-
cumstances, and to what extent, has the doctrine of sub-
rogation been held to apply ? And do such cases, or the
principles to be deduced from them, afford any guide for the
determination of the present case? •
The subrogation, i . e., the substitut.ion of the underwriters
in the place of the assured, entitling them to all the rights
of the latter, has, in .c.a.ses of total loss, long been a well
established principle in the law of marine insurance. The
doctrine of abandonment in ciises of constructive total loss
is a familiar instance of that principle.
Lord A hinger, C.B., in delivering the celebrated judgment
of-the Court of Exchequer Chamber in Rouz v. Salvador
(/), said: "The history of our own law furnishes few, if any,
illustrations of the subjects of abandonment before the time
of Lord Mansfield. That great Judge was obliged to resort
to the aid of foreign codes and to the opinion of foreign .
jurists for the rules and principles which he laid down in
the leading cases of Goss v. WitherA (g) and Hamilton v.
Mendez (h). But even those principles are, comparatively
speaking, of modern date." After referring to the Code of
Florence, dated 1523,and to the decisions of the rota of Genoa
as containing no allusion to abandonment, Lord Abinger
proceeds thus:-" But when assurances came to be consi-
dered as contracts of indemnity, and not as mere wagers, it
came nece sary to make some rules for the cond uct of the
p rti~ where the loss wa partial, as well as to secure to the
ured, when it was total, the full measure of his indemnity,
and no more. The obligation of abandonment was the
sary consequence of confirming the object of the oon-
to a strict indemnity ; " and, after refen·ing to the
~ ·nental law upon the subject, he proceeds: " But what-
(,) 3 Bi.ngh. N. C. 266.

(g) 2 Burr 6.>3, (h) 1 W. B!ackst. 276
B 2·14-
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34 BOMBAY HIGH COURT REPORTS.
1875. _ ever lights might have been heretofore derived from foreign
HARmA's codes and jurists, the practice of insurance in England has
PuaSHOTAII
r. ·b een so extens1ve,
.
an d th .
. e questions . .
a.nsmg upon every
HsNRY
0.UIBLIII.
branch of it have been so thoroughly considered and settled,
that we need not now look beyond the authorities of the
English law to illnst.rate the principle on which the doc-
trine of abandonment rests and the consequences which result
from it. It is, indeed, satisfactory to know that, however
the laws.of foreign States upon this s11bject may vary from
each other and frol!l our own, they are all directed to the
common object of making the contract of insumn9e a con- .
tract of indemnity, and nothing mo!o. Upon that prin-
ciplo is founded ~he whole doctrine of abandonment in our
law.'' He then state's several cases of loss, and points out
that if the assured, upon the information he hns received,
elects to treat the case as one of total loss and demand tlm
full sum insured, "as the thing insured, or a portion of. it
still existR, and is vested in him, the very principle of the
indemnity requires that he should make a cession of all hiR
right to the recovery of it, and that, too, witl1in a rea.<;onable
time after he receives the intelligence of the accident, that
the underwriter may be entitled to all the benefit of what
may still be of value, and that he may, if he pleases, take
meaaures at his own cost for realizing or increasing that
value."
In Brot/1.rrston v. Barber (i), the vessel insured was captur-
ed by an American Privateer off the coast of Ireland, on the
19th of April 1814. Notice of abandonment wn.s given on the
25th of April, and the recapture and restoration of the ship
took place before action brought. It was held by the Court
of King's Bench, a partial loss having been sustained,
that the assured could only recover for a partial lolils.
Mr. Justice Bayley said: "This is a contract of indem-
nity only. The ship was captured in the course of her
voyage. Now, capture is an event which may or may not
terminate in a total loss. If it continue and terminate in a
total loss, the assured will be entitled to his full indemnity,
{i) 5 M. and Selw. 418 •
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DO>IBAY HIGH COURT REPORTS. 35
but if the capture be only temporary and the loss partial, it _ _1875._ _
would be against tho spjrit as well as the letter of the con- HARIDA's
PUB<!HOTAIII
tract to hold the underwriter bound to take to the subject- v.
HK!IBY
matter insurP.d, and to allow the assured, who stipulates only G.UIBU:..
for iudemnity, to come upon the underwriter for the whole
amount of his subscription while the subject-matter insured
subsists in perfect safety. What is it that is thUB to outitlo
the assured to dcmond more than the safety of the thing
inso.red ? It is said that abandonment gives this right by
CJosing the transaction· between the underwriter and assured.
Unt notice of a.bapdonmcnt is uo more than a proposal on
the part of the assured, which the underwriter may accept,
and then there will be a new agreement between thorn, bind-
ing on both parties. But while tl10 transaction rests in
abandonment only on one side, the underwriter's responsibi-
lity may vary and cannot amount to a total loss, if by sub-
sequent events it has become otherwise at the time of action
hrought."
Mr. Justice Holroyd, in the course of his judgment, said:
"It is clear that a policy of insurance both in its object ~nd
furm" (he wa.'l speaking apparently of .an open policy), " is
merely a contract of indemnity. It contains no stipulation
respecting a l,andoument. * * * Abandonment has its
origin from the contract being a contract of indemnity. But
it is apparent t.hat if the assured might abandon at his
plea.sure, he might ho a gainer to a mucl1 greator extent
than the value of the loss, which is inconsistent with a con-
tract of indemnity. What, then, is the loss which the assured
in this case have sustainei.l? It is a loss a.rising out of tho
capture of the ship, and if Lho ship had been conveyed injm-
}'rw.&idiu of the enemy aud condemned, this loss would
have been total ; but as events have made it at the time
wlien the action was brought, it is but a partial loss. I am
not I\Waro that in any case a plaintiff can recover larger
damage than what he has sustained at the time of bringing
tbe action."
An a.bandonmenl, although generally in writing, may be
parol : Parmeter v. Todhunter (j), Read. v. Bonham (k).
(j) 1 Campb. 541. (k) 3 Brod, and Bingh. 147.
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36 BOH.IJA Y HIGH COURT .REPORT~.
1875. Where the· underwriter has accepted the notice of aban-

HARIDA'B donment, or where the totality of tqe loss continues down to
PURBHOTA.11
v. the commencement of the action, a notice of abo.ndonment,
HENRY
G.umLB.
if originally valid, has,as Sir Joseph Arnould, in his Treatise
on Marine Insurance, Vol. II., p. 1012 {2nd Edn., 1857,)
states, precisely the same effect in England as eTerywhere
else : '' In such case" {he says) " it operates as a complete and
effectual transfer of property from the assured to the under-
writers, who, in the language of the continental jurists, are
by virt_ue of it subrogated into the plac~ of the assured (par
le delai8sement, l' asswre B'ltbroge les assureurs en son lieu ~l
place). It has even a retrospective effect, and operates as an
assignment of the property not only from the time when it
was given, but from the moment of the loss which justified
it, so t.hat the underwriters are presumed to the extent of
their respective subscriptions to have been the owners of the
thing insured from the period of the loss. In a word, a
valid notice of abandonment under the limitations already
indicated has a retrospective effect, and does of itself without
any deed of cession transfer the right of property to the
underwriters to the e;tent of the insurance from the moment
of the loss."
This view as to the retrospective operation of a valid aban-
donment from the moment of the casualty was held to be
correct in Oammell v. Sewell (l) affirmed in the Exchequer
Chamber (m).
In 2 Arnould on ln;mrance ( 2nd Edn.,) p. IOU, it
is stated that "the rule must now he considered as establish-
ed by a long and uniform course of decisions (Bainb,·idge v.
Nei"8<m, 10 East. 329; Patterson v. Ritchie, 4 M. and S. 893;
Brotherston v. Barber, 5 M. a.nd S. 418; Naylor v. Taylo1·, 9
B. a.nd Cr. 725; Holdsworth v. Wise, 7 B. a.nd Cr. 794), tha.t
even although the facts were such as to justify the assured in
giving notice of abandonment a.t the time he did so, yet he
cannot insist on such notice and recover as for a. total loss,
if the thing insured be restored, before he commences his
action in such a. state that he may reasona~ly be expected to
(l) 4 Jur. N. S. 978. (m) 6 Idem. 918.
•
•
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BOMBAY HIGH cOURT ltEl'OR1'S. 3i
take possession of it. In fact in English law, W mie the 1875.

words of Lord Ellen borough in Mclver v. Henderson (n), liARtDA' I!
•
PllllSHOTAll
' The nature of the damnification at the time when the action v.
is brought is to be regarded a.<; the criterion of the right to liKNll:Y
GAJilBLL
recover as for a total loss ; and jf at that time what had
antecedently been a total loss has,~ subsequent events,
ceased to be so, and become an average loss merely, a com-
pensation for an average loss can alone be recovered'."
These cases, we think, throw much light upon the ques-
tion now under consideration. In several of them, *11.e poli•
cies sued on were valued policies. In Bainbridge v. Neil-
3011 (o) the ship Mary was valued at £6,000, and the
second policy also sued on was upon the freight of the same
ship valued at £4,000. In Patte1·son v. Ritchie (p), the
policy was on goods valued at £14,000, on board the Dis-
patch from Liverpool to Quebec. In Holdsworth v. Wise (q),
the policy was on. the ship Westbury, valued at £1,800.
And in Mclver v. Henderson (r), the two policies sued on •
were on the ship Tartar valued at £3,000 at and from Liver-
pool to Sierra Leone.
They also show that underwriters may undoubtedly ac-
quire rights over, and have the property in, the ship freight
or goods insured transferred to them without any act or as-
sent of their own, and that such rights and property may
ac.crue to, and vest in, them long before they have paid, as on
a total loss, the full amount of their subscriptions, and in-
deed before any action has been commenced against them to
recover the sllm for which they have underwritten. It is
well to bear this latter feature in view, as it will prove that
in the few authorities directly bearing, eo nomine, upon the
point of subrogation, the underwriters paid in each case in the
first instance for a total loss, and it was not until after such
payment in full that the events happened to the benefit of
which the underwriters, not the assured, were held to be
entitled.
(n) 4 M. and S. 576, see p. 583.
(o) 10.Eut. 329. (q) 7 B. and Cr. 794.
(p) • M. and S. 393. • (r) 4 M. and Bel. 576•
•
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38 BOMBAY HIGH COUl?T REroRTS.
~7_5._ _ As already noticed, the difficulty in tho present case 1s

• liARlDA'S caused by the policy on the 800 tons of loose salt being a.
PolU!HO'l'AM
v. valued one, the salt being " valued at Rs. 50 per ton."
HENRY
G,UIBLE. 1n 1 Arnould on Insurance, p. 361 (we quote agaiu from the
2nd Edition, which is tJ.e L'tst one published entirely by Sir
Joseph Arnould himself), it is. stated that in cMes of total
loss the value in the policy has always been held as the con-
clusive standard of indemnity, citing Shawe v. Felton (s)-
" Ai:! a general rule," says tlie learned author, '' the valuation
fixes the amount of the insurable interest as between tho
parties, and can never, except in cases of fraud or excessive
valuation, be set aside; but whether the loss be only total or
partial remains the basis upon which the sum due to the
assured in respect of the loss is calculated."
We think that Sir Joseph Arnould is quite correct in say-
ing, as he does in a note to the above.quoted passage, that the
doctrine thus stated by him is conclusively established :t>Y
• the decision · in the House of Lords in the year 1847 of the
case of lrvin9 v. Mcinning (t).
It was, however, decided by the Court of King's Bench
in the year 1811, in the leading co.so of Forbes v. A11pinnll
(u), that the valuation in the policy, though it fixes the
value of the interest, does not preclude the inquiry wl1e- ·
ther or not .the whole of the interest, intended to ho
insured, and .to which the valuation refers, has, in fact, Leen at
risk. There the insurance was on freight at and from Hayti
to Liverpool valued at £6,500, and it appearing that the vessel
was lost otf the coast of Hayti, when she had only taktm in
fifty-five bales of cotton, which formed but e. small part of
the cargo, intended to be shipped on board her, and on which
the freight was valued, the court would not allow the as-
sured to recover the whole amount of the valuation, but
only such a proportion of it as the goods actually shipped on
board bore to the full cargo intended to be loaded and on
which the freight was estimated.
(s) 2 Eaet. 109. (t) I House of Lords Rep. 28i.
(v) 13 Eaet. 323; S, C. TIAl. L. C. on .Mere. and Marit. Law 185.
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BOIIBAY HIOR COURT REPORTS, 39
That case was argued by the most eminent counsel then 1875.
at the English bar, and in a considered judgment delivered HARIDA'11 -
by Lord Ellenbbrough, C.J., the law is thus lucidly stated:- PuRa!.OTAIJ[
"The object of valuation in a policy is to fix, by agreement HENRv
GAMBLE,
between the parties, an estimate upon the subject insured
and to supersede the necessity of proving the actual value
by specifying a certain sum as the amount of that value. In
fixing that sum, if the assured keep fairly within the prin-
ciple of insurances, which is merely to obtain an indemnity,
he will never go beyond the first cost in the cas~ of the
goods, adding thereto only the premium and commission,
and, if he think fit, the probable profit; and in the case of
freight he wil1 not go beyond the amount of what the ship
would earn with the premiums ancl commission thereupon.
The valuation, however, in the case of goods looks to all the
goods intended to be loaded *, * *; and if, by
the perils insured against in a valued policy on goods, part
only of the goods, intended to be covered, be lost, the valua-
tion must be opened, and the assured can only recover in
respect of that part. * * * If, for instance,
the insurance be generally upon goods, and the goods, in-
tended to be protected, be 500 hogsheads of sugar, and a
valuation be made accordingly, but the shiP,, by accident,
takes on board 100 only, and saila, and is afterwards lost
by one of the perils insured against with those 100 on board,
can it be contended that the assured shall TCfOVer to the
full amount of the valuation, that is, for the whole 500 when
he has iost only 100? * * * and yet to this
extent the plaintiff's argument in this case is carried. The
0
proposition is monstrous. * * * The court,

therefore, will look to very strong authorities before they
yield to such 11. proposition.
"It was pressed upon the argument that in the case of a
valued policy, if any interest be proved to be on board,
and there be no fraud, a total loss will entitle the assured
to recover the sum specified in the valuation. A~ to that
position we accede with this limitation, that is, provided
there is a total loss by any of the perilR inRured agaimit of
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40 BOMBAY HIGH COURT REPORT!!.
1875. the whole subject-matter of insurance to which tke valuation

-liARIDA'S
- - - applied, viz., of all the intended cargo of goods where the
PuasHOTAM
v. insurance was on goods, and of all the intended freight
HENRY where the insurance was upon freight. But if it be meant
GAMBLE.
_ to carry that position to this extent, that the underwriter is
not at liberty to inquire what was intended to have been
included in that valuation, or, when he has ascertained that
point, that he cannot reduce the sum below the valuation
by proving that a part only of what was included in the
.
valuation has been lost by a peril insured against, we deny
the position when so extended."
In Rickman v. Carsta,irs (v), the same principle was acted

upon in the case of a valued policy on goods.
In Tobin v. Harford (w), decided in 1863, and affirmed in
the Exchequer Chamber (.r.), a policy of insurance for twelve
months on ship and cargo, the ship being intended for the
barter trade on the coast of Africa, contained a stipulation
that" outward cargo should be considered homeward in-
t~rest 24 hours 11fter arrival at the first port or place of trade."
By a subsequent, clause, the policy was declared to be "on
the ship valued at £2,000, cargo valued 11t £8,000 with
liberty to in()rease the valuation of the homeward cargo.''
There was also liberty given to the insured "to discharge,
load, unload, sell, barter, exchange, and trade" any part of
the cargo.• The ship arrived at a port on the coast of Africa,
and there discharged one-third of her cargo, and, after a
stay of more than 24 hours., proceeded towards other ports,
in order to take in homeward cargo, and, before arriv!ng at
her next port of destination, she was totally lost. It was
held that the insurers were not liable to pay the whole
£8,000, but a proportion only. That the valuation in the
policy was applicable to what was substantially a. full cargo,
whereas here there was not substantially a full cargo. It
waa also held that the proportion of the £8,000, which the
und~rw~ters were liable to pay, was to be ascertained by
{v) 5 B. and Ad. 651.
(w) rn C. B. N. S. 791 ; S. C. 32 L.J. C. P. lM. {.r) 34 L. J. c. P. 37.
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llOXBA Y HIGH COURT REPORTS. 41
lnding the proportion of a fnll cargo which was on board at __1_s1_5_._

the time of the loss ; and if this proportion could not be found PuHUIDA'B
JISB.Ctl' AK
then the underwriters would be liable as upon an open policy 1'.
HENBY
nnderwriten for .tS,000. GAIIBLS,
It remains to notice the cases cited at the bar, in which

the nnderwrit.ers were subrogated in the place of the assured
aa regards claims made by the assured against third parties.
The earliest was a decision of Lord Hardwicke, C., in the
year 1748, in Ba,n.dul v. Cockran (y). The case is very shortly
l'flJ>Orted, and in the following words :-The King having
granted general lettel'8 of reprisal on the Spaniards for tbe
benefit of his subjects, in consideration of the losses they
sustained by unjust captures, the Commissioners would not
suffer the insurers to make claim to part of the prizes, but
the owners only, although they were already satisfied for their
loss by the insurers, who .thereupon brought the present bill.
The Lord Chancellor was of opinion that the plaintiffs
bad the plainest equity that could be. The person originally
sustaining the loss was the owner, but after satisfaction
made to him, the insurer. No doubt, but from that time, M
t.o the goods themselves, if restored in specie or compensation
made for them, the assured stands as a trustee for the insurer
in proportion for what he paid, although the Commissioners
did right in avoiding being entangled in accounts and in
adjnsting the proportion between them. Their commission
was limited in time ; they see who was owner, nor was it
material to them to whom he assigned his interest, as it wn~
in effect after satisfaction made.
That case was stated by the counsel for the respondent to
be the only one in the books, to which we can scarcely aasent.
The principle on which it was decided, viz., that the assured
oaght not to be paid twice over in respect of a policy which
ia merely a contl-act of indemnity, has been repeatedly acted
llpOll lll England during the century and a quo.rtar which
i.. elapsed since Lord Hardwick's decision in favour of the
IIIMJerwritel'II in that CMe, and it is cited with no indica,tion
() J l Vesey Sen. 98.
. •244-/
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BOMBAY HIOH COURT IEPOJtTS.
1875. of disapproval by Sir Joseph Arnould in the three editions

_HAm>•'a of his Treatise to ·which we haTe had acceu : 2 Arnould on
.-v. . .O'l'4X,
"· Insurance, 2nd Edn. p. 1180, 3rd Edn. p. 867, 4*h i'.dn.
BJIDY
.GAim.&. p. 864.
In Yates v. Whyte (z) it was held that after abandonment
for damage arising from collision, caused by the faolt of
another ship, the underwriters had the same right of action
in the name of the assured against the owner of such ship as
the assured himself bad before abandonment, and might re-
cover in proportion to the extent in which the ship waa
covered by the policy.
In Miller v. Wood/all (aa), Lord Campbell, C. J., in deliver-
ing the jadgment of the Court, said:-" The abandonees
are considered as purchasers of the ship at the moment of
the casualty to which the abandonment refers, and although
the contract of a shipowner does not run with the ship, it is
well settled that, as incident to the ship, the right to the
whole freight, pending at the time of the sale and subse-
quently earned, belongs to the purchaser of the ship. * *
* The abandonee of the ship, like the purchaser, has a
right to the whole of the freight pending at the casualty,
although he could not claim freight paid or completely earn-
ed in a prior part of the voyage : Stewart v. Greenock Mariae
Ins1,rance Company, 2 House of Lords Rep. 159; Tlae
Swttislt Marine Ins1trance ·company of Glasgow v. T1'MMn",
l Meg. Scotch Appeals 334.''
In the Quebec Fire .As,urance Company v. St. Louilt and
another (bb), an appeal from Lower Canada, and which
turned upon the old law of France, it appeared that the
parish church of Borecherville in Lower Canada hav-
ing been, in great pa.rt, destroyed by a fire occasioned by
the negligence of the servants of the respondents (St. Louia
and another), and being at the time insured by a policy
effected by the cure upon the church and sacristy, the cure
and one of the marquilliers in charge, by a notarial instru-
ment transferred to the appellants (theQuebecFire Insurance
(z) 4 Singh. N. C. 272.
(aa) 8 Ell. and Blaeltb. 493. (bb) 7 Moore P.C. :86.
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BOXBAY HlGll COURT RErORTS.
Company), who had granted the policy, in consideration ~f 1875.

the payment by them of part of the amount of the damage Haw&'11
sustained by the fire, the righ.t to ~ue and claim from the Puiw;~.u1
respondents the amount so paid. The Judicial Committee 01!;"~
of the Privy Council held that this constituted a. valid sub-
n>gation of the debt due to the insurers in right of the
fabrique according to the French law prevailing in Lower
Canada.
The judgment of the Judicial Committee was delivered
by the late Loni Wensleydale, and at p, S.16 proceeds thus :
"But the learned counsel contended that an a.ssuree, by a
policy against either maritime or terrestial risks, is clearly
within the equity of the rules, and has a. similar right to
require a subrogation at the time of the payment of the loss.
The authorities cited in support of that position seem to us
to est.i.blish that the assurees have that right." He then
4111otes Alaozel on Assurance, Pardcssus, Quinau]t, Toullierr
Emerigon, and Pothier" on Assurance," p. 248," who" (Lord
Wensleydale proceeds)" lays it down that in the case of a
general average, the assurer, after having indemnified the
ueured against tle losses sustained fott the common benefit,
ought to be eubrogated r.. the rights of the assured to the
oontnoution, which in such case mast be made. These
authorities are so consistent with justice, and founded upon
eo equitable a principle, that we have no difficulty in adopting
t.laem, and we do not think that any of these are shown to
aye been derived, as was suggested in argument, from the
Cede Napoleon, which is not in force in Canada. Assuming
tlama that i, is the old law of France that an assuree may,
on payment, require to be eubrogated, two objections remain
to be answered/'-which it is not neceee&l'y or material for-
• .:0 not.ice here.
...... ·
.·lathe N<WtA of England Iron Swm Ship Insurance
4"to~ v. AfflMwtmg (cc), decided in January 1780, the
of tlae aderwriters, paying on a total loss, to be sub-
~ for the 8181U'ed, was expressly decided. There a
..,.. elected for !&,OOO on the steamer Hetto11.,
(ce) L. R. 6 Q. B. ffl.
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44 BOMBAY •HIGH COURT REPORTS.
_ _1_e1_6_.__ valued at £6,000. She was run down and sunk by another
11.utm•'• st.eamer, and the underwriters paid the owners the !6,000
Pt1B8BOTill
as for a total loss. Afterwards !5,000 was recovered in the
"·
HUBY
Court of Admiralty in respect of the Hetton against the
G.uou.
owners of the other ship. The real value of the Hatton
was £9,000, and there waa no other insnmnce upon her.
The Court held that as between the a.ssnred and the under-
writers the value of the Hetton must be taken to be
!6,000 for a.ll purposes, and that, therefore, the damages re.
covered, which were in the nature of salvage, belonged
entirely to the underwriters.
Cockburn, C.J., says (dd): '' It is conceded by Mr. Smith
that if there were this valued policy and an open polioy, and
the assured were first to sue upon his open polioy, and re-
covered .£3,000, he would not be afterwards entitled to
recover on the valued policy the whole amount in that policy,
but only £3,000, the difference between the :amount recover-
ed on the open policy and the amount of the estimated valne
on the valued policy. So, again, it must be conceded that iC
this sum, by way of damages, had been recovered first from
the owners of the vessel which caused the damage, the
underwriters upon this valued policy could not have been com-
pelled to pay to the assured the whole of the sum insured,
because the value of the vessel a.s between them must always
be taken to be the amount at which it is stated in the policy.
* * * * It has always been considered a settled rule in
insurance law that where there is a total loss, the under-
writers, who pay upon a total loss, whether it is actual 0 ~
whether it is constructive, are entitled to anything that
remains of the vessel, and to anything which would other~
wise have accrued to the owner of the vessel by reason of
his ownership. • • * It is only because it is a valued
policy that these difficultiea present themselves."
There are, no doubt, expressions in the judgments of the
lea.rued Judges in that case, which have a tendency to support
the a1·guments adduced to us on behalf of the respondent,
(dd) lbl.d. 249.
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BOMBAY HIGH COURT &EPORTS. 4S
but we think they must be taken to have 1-eference to the _1875. _

facts then before the Court of Queen's Bench. H..uroA's
PuJumOTAH
The ca.se of ~ruce v. Jones (ee), decided in 1863, is an "·

HuaY
GAIOAI.1
important one, and shows, as does also the already cited case
of Tobin v. Harford (ff) affirmed in the Exchequer Chamber
(gg), that even since the decision in I1·ving v. Manning
(hh), the principle of indemnity is by no means to be dis-
regarded in the case of a valued policy. There the plaintiff,
a ship-owner, brought an action against one of the under-
writers to a policy on the ship, valued in the policy at £3,200,
t.o recover the def«:ndant's share for a total loss. At the
trial it appeared that the plaintiff had effected three other
policies of insurance on the same ship, in which she was
valued at t3,000, ts,000, and £5,000, respectively, and had
received on the three last mentioned policies the sum of
ta,126-13-6.
Mr. Justice Willes, who tried the cause at the Liverpool

Aasizee, a very high authority upon all questions of commer-
cial law, directed the Jury, with respect to the measure of
damages, that insurance was a contract of indemnity, and
that for the purposes of that action, and as between the
plaintiff and the defendant, the value agreed upon and stated
in the policy must be taken to be the real value of the ship,
m., I, 3,200, and that if the plaintiff was entitled to recover
in respect of a total loss, he would be entitled to be indem-
nmed to that amount; that the sum the plaintiff had already
recovered on the other policies must, therefore, be deducted
from such value, and the plaintiff would thus be entitled to
recover from the defendant in that action the difference of
t.hoee soms. The jury found a verdict for the plaintiff for
die difference so estimated, viz., £73-6-6. A rule n1".n ·
Jiaying been obtained for a new trial on the ground of mis-
clirection. as to the measure of damages, the court, consisting
al Pollook, C.B., Martin and Channell, BB., after argument,
C*.ii1ec1 that the direction of Mr. Justice Willes ha.cl been
(ff) 1 H. and C. 769. (gg) 34 ltkm 37.
(Q) 32 LJ.C.P. 13<1. (M) 1 House of Lords Rep. !!87.
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BO.IIB..\T 81GB COCBT B&POITS.
187$ . quite right, discharged the rule, and refused leave to appeal
HAJ1ID.1.'• to the Exchequer Chamber.
Puullor.&JI
"·
Hau
Now, what are the facts in the present case? The skip
GAXISI.E. .&gina having sailed from Bombay on or about the 10th
Jone 1872, is believed to have foundered, with all hands on
board, in the cyclone that occurred soon afterwards in tllie
Bay of Bengal Notice of the alleged tot.al loss was given to
the underwriters by the lett.er of the 30th August 1872 (Ex-
hibit B.)
On the 15th October 1872, Ratanji F..d&lji Bottlewalla, the
owner of the salt, and on whose behalf the policy had been
made, was adjudicated an insolvent, and on the same day a
vesting order was made (Exhibit F), vesting his property in
the plaintiff, Mr. Gamble. It was stated before us by the
Advocate General, and not denied by the counsel for the
respondent, that the deposit upon the three bonds, amount-
ing in the aggregate to Rs. 5,600, was repaid by the Oo,rnn-
ment of Bombay and the bonds virtually cancelled on *fie
3rd July 1873. The plaint in the present suit was filed en
the 30th September 1873.
What then were the right.a of the plaintiff as the assignee of
Rat&nji Ede.lji Bottlewalla·on that day? for to quote again
the passage in 2 Arnould on Insurance, p. 1011, "In Engiida
law the nature of the darnnification at the time when the
action is brought, is to be regarded aa the criterion of the
right to recover as for a total loss, and if, at that time, what
had antecedently been a total loss has, by subsequent even~
ceaaed to be so, and become an average loss merely, a com-
pensation for an average loss can alone be 1'800vered.'\
The salt insured bad, by the perils insured against, been
totally lost, but not salt of anything like the valae · of
Rs. 40,000, the amount at which it was valued in the policy.
Taking the highest eatimat.e suggested in the argumem
before us by the counael for the respondent~ the
utmost Talue pf the salt at Calcutta could not have been
greater than Rt. 7.JOOO. We have e::rpreesed our opinion
that the assured was justified in adding the possible risk
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BOKBAY BIOB COURT UPORTS. 47
apon the bonds, at lee.at that in so doing he rendered what 1875.
otherwise would have been a grosaly exorbitant and frau- H.uID.t. s
.1_,_.. alaa.tion
IIIUIIUI, v
. f . nd 1 . .
a air a
I
egitimate one. t can IIC&l'Ce y,
we think, be doubted that, if the risk on the bonds waa not 0
• motive for the high .,.aloe being fixed, a valuation at about
m times the value of the salt at Calcutta must certainly be
"·
~=-
1 PvuROT,U'-
ooaaidered as so preposterous, so grossly exaggerated, aa to

furnish conclusive evidence of fraud : Joni.des v. Ptmder (ii).
Had Government enforced payment of the bonds, either in
whole or in part, we think that the underwriters would have
been liable, upon this policy, to the amount which the obli-
gors would have been thus legally called upon to pay under
the bonds. But a little more than two months before the
commencement of the present suit, the Government elected
to treat the three bonds as cancelled, and returned ~o
llancharji Dorabji, the principal obligor, the whole of the
deposit paid upon the e1ecotion of the bonds in May 1872.
The "whole subject-matter of insurance to which the
nluation applied," to borrow the language of the Court in
Fcrrbes v. Aspinall (jj ), what was intended to be and what
was in fact included in the valuation, was the 800 tons of
loose salt and the risk on the bonds. If it was not so, then
the policy was void on the ground of an exorbitant and
fraudulent valuation. Assuming, a.a we think we are bound to
do, that such was the whole subject-matter of insurance, the
&s8tlre(i's agent, Mancharji Doral.bji, at the time of the filing
of the present suit, had been freed from his liability in
respect of the bonds, and the plaintiff, the assignee of the
owner and shipper of the salt, cannot, we think, be entitled
~ reoover from the underwriters, as for a total loss, when, so
fa. ea Uie bonds are concerned, there was not, at the com-
.__.ent of this 1uit, any lo88, either total or pa.rlial.
8appoae tbat the Government had not returned the Ra. 5,600
cllpDlii. wJaen they did, if the underwrit.era had in the first
i•I WI J*d 1ihe Ra. 40,000 for whioh they underwrote, and
. . Cioffftl.lDellt, after enforcing the bonds, and after
. . . . J;,een paid their full value, bad, of their own 'lDer&
(ii) L . R. 9 Q. B. 531. ( ji) 13 Eaat 323.
Dig1tizedbyGoogle ---'
.
48 BOMBAY HIGH COURT REPORTS•
.
__1_&_75_._ motion, or upon receiving instructions from the Government
HARIDA'S of India or the Secretary of St.ate, returned the amount so
PURSHOTAK
11, recovered upon the bonds to the auured or to his principal,
HnaY would the insolvent or the plaintiff have been allowed to
G.uniLE.
have retained, for his own benefit, such moneys as well aa
the whole Ra. 40,000 paid by the underwriters ? We think
clearly not, and that upon the authority of the cases we have
cited, such moneys returned by the Government would have
vested in the assured as trustee for the underwriters, or
that, in other words, the underwriters would have been sub-
rogated to the rights of the assured to the extent of such
moneys so returned to him, We are unable to distinguish in
principle such case from the present, and bee.ring in mind the
doctrine of abandonment, and that under a valid notice of ab-
andonment, underwriters may and unquestionably do acquire
rights in the property insured before they are called upon
to pay as upon a total loss, and that, as already pointed out.,
the subsequent restoration of the property defeats the right
of the assured, even in the case of a valued policy, to insist
on his notice of abandonment, we think that it would be
contrary to decided cases, and to the principles to be deduc-
ed from them, as well as contrary to equity and justice, to
allow the plaintiff to recover the whole ~. 40,000 as for a
tot;al loss when the assured had, two months before the
commencement of the present suit, by an act of bounty on the
part of the Government of Bombay, been virtually released
from all liability on the bonds, the possible liability upon
which bonds alone prevented the valuation being excessive
and fraudulent. ·
To quote the words of Lord Mansfield, C.J., in Hamilton
v. Mendez (kk), .where the ship (which was valued in the
policy at £1,200), after capture, after notice of abandon-
ment which the underwriters refused to accept, and before
action brought, was brought into the port of London, the
ship having received no damage from the capture, and the
cargo .was delivered to the freighters, who paid full freight
"the plaintiff's demand'' (said Lord Mansfield) "is for an
(i-k) 2 Burr. 1198, see p. 1210.
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80lil11AY BIGB COU&T IEPO&TS. 49
indemnity. His action then must be founded on the nature __1_87'-5_._

of his damnification as it really was at the time of action H.um•'a
PuRSHOT.t.K
brought. It is repugnant, on a contract of indemnity, to "·
recover as for a total loss when the final event has deter- N:.
mined that the damnification is in truth an average loss."
The decree, therefore, in the court below, which was
based upon the 8.8sumption that the assured suffered a total
loss to the extent of the whole Rs. 40,000 insured by the
underwriters, cannot stand, and must be reversed, and in
, lieu thereof a decree must be passed for such sum as will
represent the value of the salt, with the fair profit thereon,
bad it reached Calcutta. We do not think that the
Rs. 5,600, returned to Mancharji Dorabji, was money had and
received to the use of the underwriters, or that they are
entitled to any part of it as against the insolvent or' his
assignee, the present plaintiff.
We will, if the parties c&nnot agree to the a.mount, take
evidence ourselves of the value of the salt at Calcutta., and
ao a.void sending the case down to the court below.
We think tbnt the order of the lower court as to costs
ought not to be disturbed ; and as the point, upon which •
we decide this appeal, was not put forward in the written
statement, or even alluded to during the hearing before Sir
Charles Sargent, we think that the appellants must pay to
the respondent his costs of this appeal as well as their
own.
AB the sum claimed in the present suit and underwritten
by the appellants, viz., Rs. 11,000, will more that!. cover
the amount which, in our opinion, the plaintiff can recover
upon the policy, we propose, subject to anyt~ing which we
may hear from counsel, that as the seven consolidated snits
brought against seven of the eight other underwriters will
donQtless fail, the same should, in accord nee with the
Judge's order, dated the 19th February 1874, be either dis-
missed or judgment be passed in favour of the defendant.a
in each of such suits, numbered 678 to 684 of J 878 (both
inclusive), each party thereto bearing his own costs.
B 244-g
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50 BO.llBAY HIGH COURT UPOBTS,
1875. The defendants in those strita must pay to the defendants

H•a1».a.'s and appellants in the present suit their rateable contribu-
Pua8HOT.ut:
1'. tion towards the amount which will be hereafter found due
HENRY
G•IOIL&. by the present defendants and appellants to the respondent
as well as their contribution towards the plaintiff's and tho
defendants' and the appellants' costs of the hearing of the
present suit in the court below, and the costs now ordered
to be .paid by the defendants and appellants in this appeal.
Note.-It waa aubeequently agreed between the parties that· Rs. 5,000
should be taken aa the value of the aalt with a fair profit on it, had it reach. •
ed Calcutta, and the decree of the Appellate Court waa accordingly
drawn up, revenring the decree of the court of first instance, in fnour of
the plaintiff'. and reepondent for the sum of Rs. 5,000, being the sum agreed
by counsel for the appellant and respondent to be the amount of the liabi-
lities of the underwriters on the policy in the plaint mentioned according to
the principle !leemed applicable by the Appellate Court, and ordering the
diamiaaal under the provisions of Section 110 of Act VIII. of 1859 of the seven
suite mentioned in the Judge's order of 19th February 1874, and ordering
the defendants in each of such atlita to pay to the plaintiff the sum of Ba. 125.
which the plaintiff had COllllented to take in lieu of his taxed CQBta of such
euita, and ordering the defendants in this and each of such seven suits to pay
to the plaintiff' rateably and in proportion to their respective subscriptions the
ooete of the plaintiff' in thia suit in both courts, and all coats in the aeven
other atlita, and to bear rateably and in proportion aa aforesaid the taxed
coata of all the defendants in the said suits.
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BOJIBAT HIGH COtnn' UPOBTI. 51
1876.
(.!.PPBLLJ.TE CIVIL JuitISDICTION.] March 10.
Regular .Appeal No. 73 of 1872.
PA'RAKH GovARDHANBHA'I HARIBHA'I}

and LAttu HARIBHA'I, owners of Plaintiffa and
~~::;.~.~.~~~:::::~ ~-~~~ Appellants.
'
BANsORDA's DuLABHDHA's, owner of
the shop (or firm) conduc~ Defendant and
1
in the nameof SHA' NATHUBHA'I Jlespondent.
BANSORD •••••.•. • •.•.•.•••• •.... ···J
.Ad XXI. of 1848-BOl!lbay .Act III. o/1865-Hifld" La-Wagm,ig
conl'rtlda-.AgeflC1!-ParlMrahip.
Aet XXI. of 1848 limply annuls all contract& by way of wagering, ancl
prohlliia any llllit in reepect of them, but does not declare them to be un-
lawful ; and neither by the provisions of Act XXI. of 1848 nor by
Hindu law ia the agent of a wagerer precluded from maintaining agaiust
~e latter a IUit for moneys paid by the agent to the other wagerer, or hia
m
agent, respect of the 1088 of the wager, nor from recovering fees and bro·
kenge due to him u agent in eft'ecting, or for servioea in connection with.
the -ngering transaction. Notul.al Heeralal v. J"mnadiu Umrootlal and
aotAer (2 Borr. Rep. 676) overruled.
Bombay Act III. of 1865 has not a retrospective force, and, therefore,
applies neither to agreements collateral to wagering contracts, entered into
prior to it. coming into operation, nor to interest au bsequently accruing due
on nch agreements.
Where the parties to an agreement (prior to the coming into force of

Bombay Act IIL of 1865), collateral to a wagering transaction, stand to
eech other in the relatioDA1hip of partners, and not merely of principal and
agent, they are eenrally liable for contributions, proportionate to their
1everal aharee, toward, the lOBBeB incurred by the partnership in l'8lpec\
of Reh wagering transaction.
THIS was an appeal from the decision of Bholanath S&ra-

bhai, First Class Subordinate Judge of Ahmedabad, ill
original suit No. 742 of 1867.
The facts of the case fully appear from the judgment of

tile Coort.
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52 BO'MBA Y HIGH COURT RRPORTS.
1875. The appeal was argued before WESTROPP, C.J., and Ko-
. PA'LUUI BALL, J. .
GoV,UlDB,Ul·
BJU. 1 BARI·
1 :um,t,. With him oriuntaram
:r,.: t. ( , m. L ,n., ,
i.varayan and TT.• , _7_ D" •
y1,,iaycu; .u.an-
BJU.'I
17• cho,,na) for the appellants.
~S:~s. Starling (with him Dkirajl4l Mathuradas, Government
Pleader,) for the respondent.
Our. adv. wlt.
W ESTROPP, C.J. :-The plaintiffs claim ftom the defendant,
as sole member of the firm of SM NathubMi Ransordas, a
be.lance of Rs. 15,699-i-5, alleged to be due in respect of
various dealings in cotton, opium, &c., between the plaintiffs
and that firm.
With the single and insignificant exception of an item of
"Rs. 59-1-0 debited on account of insurance,'' the defend-
ant denies tliat any of the transactions sued upon were with
the firm of Sha NathubMi Ransordas. That firm he alleges
t.o consist of several partners, none of whom, except the
defendant, have been made parties to the suit. Any dealings,
other than the item of Rs. 59-1-0, which the defendant had
with the plaintiffs, he alleges to have been Batta trausactions,
i.e., time-bargains, falling within Act XXI. of 1848, and
carried on by the plaintiffs not simply as his agents, but aa
partners with him in his capacity as an individual, and not
on behalf of, or with the firm of, Sha Nathubhai Ransordis.
Putting aside the item of Rs. 59-1-0, both parties concur
in regarding the defendant alone as the person concerned
with the plaintiffs in the transactions, the subject of this
suit. The parties, it is true, arrive at that conclusioa by
different roads, inasmuch as the plaintiffs say that he is eo
because they dealt with the firm of Sha NathubMi Ransordas.
and that the defendant is the sole member of that firm.
whereas the defendant avers that he alone is the person
concerned with the plaintiffs in those transactions, inasmuch
as they were dealings with the defendant as an individual_.
and not with his firm of Sha NathubMi Ransord!s.
Whichever of these two reasons be the true one, it is
evident that under neither hypothesis wonld it have been a
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BOMBAY HIGH COURT REPORTS. 53
proper course to have made the alleged partners of the de- 1876.
fendant in the firm of Sha Nathubhai Ra.nsordis parties to PA'RAKH
this emt • m• respect of any of the t ransact·10ns, sued upon by 61:VAJI.DHAK•
BHA'I HAJu.
the plaintiffs other than the item of Rs. 59-1-0, and for the BHA'I
11.
sake of that item alone we do not understand that the RANsoJ1.»A's
• h to
p laintllls
:tt
w1s amen d t h e1r
. p1amt
. b y adding as parties
. to DtrLAJIBDB.t.'s
this suit the persons alleged by the defendant to be his
partners in the firm of ~ha Nathubluii Ransordas. It would
indeed have been imprudent to do so, because if it turned
out either that the defendant expressly contracted on his
own behalf alone with the plaintiffs in respect of the other
items, or that, although he may have professed to enter
into those contracts on behalf of the firm of Sha Nathubhai
Ransordas, yet the other members of that firm did not
authorize him to engage in such transactions, nor did such
transactions come within the proper scopo of the business
for carrying on which the· partnership firm of Sha N athubhai
Raosordas was established, the defendant alone would be
liable in respect of them, and the plaintiffs would have ex-
pvsed themselves to payment, to the partners other than the
defendant, of their full costs, and could not save themselves
therefrom by establishing against them the item of Rs. 59-1-0
inasmuch as it would be a misjoinder to have associated
in one and the same suit that item, which affected the firm,
with the other items, which, on the present hypothesis,
affected only the defendant in his individual capacity. In
that case, moreover, the plaintiffs might find it difficult to
el!ta.blish a right to have the cost.s, which they might be
compelled to pay to those partners, over against the defen-
dant; for he has, th.i·oughout this suit, denied that the tran-
saction , other than the item of Rs. 59-1-0, were matters to
luch the firm of SM Nathubhai .Ransorda.s were privy.
The ea e of the plaintiff , as presented to the court be-
low, was that they acted in the transactions, alleged by the
defendant to be Satta transactions, as agents, anrl not as
wagerer ; that in short the wagers, if the transactions were
. wagers (which t.he plaintiffs denied them to be), were wagers
,b weeu the defendant (under hi commercial description or
J,_ _ Digitized by Google

M, BOllBAY HIGH COURT REPORTS.
1875. atyle of Sha. Nathubhai Ransordas) and third parties, and

PA'RAKH not between him a.nd the plaintiffs, and consequently that
<;~~:H~:;. Act XXI. of 1848 did not apply to this suit. To that ques-
BHA'I
v.
tion of agency the Subordinate Judge mainly directed his
RANSORDA's attention, and held that such agency was not proved He
DuuBHDHA's a1so h eld t h at t he transactions
. were S atta, transactions.
. As-
swning, but not deciding, that he was right on both points,
we must point out that the defendant alleged that he did
enter into Sattd transactions with the plaintiffs, and that the
latter were not his agents, but his partners in those transac-
tions, that is to say, were joint wa.gerers with him in
time-bargains with third parties. The Subordinate Judge
seems to have quite overlooked the legal effect of the case
as thus put by the defendant himself, a.nd so apparently did
his professional advisers in the court below. The defen-
dant denied that the plaintiffs were his agents, thinking
probably that he might thus evade coming within the scope of
the decisions of the Supreme and High Courts, which held that
the agent (usually a shroff) ofa. wagerer might main ta.in against
the latter a suit for moneys paid by the a.gent to the other wage-
er or his a.gent in respect of the loss of the wager, and might
also recover fees and brokerage due to him as agent in
effecting, or for services in connexion with, wagering transac-
tions. Such was thEf case of Joravermal Sivlal v. Beramji
Dddabhai, decided, after due consideration, by Sir M.
Sausse, C.J., in the Supreme Court, on its Plea Side, on the
14th.of'April 1859. It was an action of assumpsit to recover
Rs. 11,001-8-1, being the balance of an account due from the
defendant to the plaintiffs. The items on the debit side of
the account consisted of payments, made by the plaintiffs on
account of, and for the defendant, in satisfaction of losses on
wagers made by the defendant in the names and through
the agency of the plaintiffs, and of commission or brokerage
due to the plaintiffs as such agents of the defendant. The
wagers had been all entered into subsequently to the passing
of Act XXI. of 1848, and were upon the average prices of
opium realized at the Government sales of that commodity
at Calcutta. in 1857 and 1858. The commission or brokerage
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BOKBAY HIGH COURT RIPOBT8.
was for effecting those wagers. Beside pleas of non-assump- 1876.

eit,paymentandfra.ud (which were traversed by the plaintiffs), PA'lU.XB
the defendant pleaded certain special pleas, apparently in- ~~~~:
tended to show the circumstances, under which the payments BBA'I
v.
•ere made, and the brokerage, &c., sought to be recovered, RANsoR»A'~
and that, either by Act XXI. of 1848 or by Hindu law, the DoLABBDBA 8
plaintiffs were debarred from recovering those payments or
the brokerage, &c. To those special pleas the plaintiffs both
specially and gene1"3lly demurred. I contended on behalf
of the plaintiffs that the special pleas were not only bad on
special demnrrer as being informal and unintelligible, but
also were bad in substance, and, therefore, open to general
demurrer, because the contracts sued on were not wagering
contracts, bnt contracts collateral to them, on which a suit
would lie, inasmuch as wagering contracts were only annulled '
and not rendered illegal by Act x.xI. of 1848. Mr. Lewis,
A.G., for the defendant contended, 1st, that Act XXI. of 1848
was applicable to contracts collateral to wagering contracts as
well as to wagering contracts themselves, and in fact render-
ed the htter illegal, which, being so, tainted the collateral
contracts with the same illegality. 2ndly, that, at all events,
by Hindu law, all wagering contracts were illegal, and for
tb.ia he cited 2 Borradaile 415, 621, 1st Ed. (a). As to the
special pleas, the Chief Justice said that there were " strong
reasons for regarding them as bad on spec&l demurrer for
informality and unintelligibility, but that he would not decide
the case on that ground." I have a correct manuscript note
of the judgment made at the time of its delivery, which, a.a
the case bas not been reported, it may be useful now to
quote. He said : " Assuming those pleas to be regular in
form and clear in their meaning, and further assuming that
meaning to be that which it has been argued to be by the
defendant's counsel, and viewing them in the manner most
favourable to thedefendant, those pleas seem to me to be
bad on general demurrer. Treating those pleas either as
ataung that the plaintiffs had paid moneys for the defendant
to tbird parties on losses by the defendant in respect of
(a) ~ . 676, Ed. of. 1862.
Digitized by Google
1875. wagering contracts entered into between him and such third
PA'RAXB parties, or that the moneys sought to be recovered by the
Go~ARHn.u,. plaintiffs in this action are for commission or brokerage fees
BHAl ARI·
BHA'r jn respect of such contract.s effected by the plaintiffs for the
Ril;:;RDA's defendant with third parties, I think that those pleas would
DtrLABBDBA'a be bad on general demurrer. Act XXI. of 1848 of \he
Indian Legi1:1lature is analogous to the English Statute 8 and
9 Vic., C. 109, S. 18, from which the Indian Act is borrowed·
That Statute and the Indian Act make all agreements by
way of gaming or wagering null and void, and prohibit any
suits in respect of such contract.s. Neither the Statute nor
Act declares such contracts unlawful, but merely annul
them. There has been always a distinction preserved be-
tween cases, in which the Legislature declares a contract to
, be ·unlawful, and cases in which the Legislature has declared
a contract to be null and void, and prohibited the parties to
it from suing upon it. That distinction has been very clearly
upheld with respect to the English Statute 8 and 9 Vic., C.
109, S. 18. Several cases in point have been cited by Mr.
Westropp for the plaintiffs. Knight v. Cambers (b) and
Knight v. Fitch (c) appear to rnlethepresentcase. Inchbald
v. Cockerell (cl), and Sims v. Harri.JJ (e),are to the same effect
(f)." (Here Sir M. Sausse referred in detail to those cases and
then continued thus:), "The case cited by Mr. Lewis, A.G·
from 2 Borradaile's Reports 621 (1st Ed.), appears to have
been treated both in this Court (g) and in the Privy Council
(h) as no longer law, if ever law. The 5th and 6th pleas a.re
applicable to the count in the plaint on the account stated.
They seem to be bad for the same reasons as the 3rd and 4th.
The demurrer must be allowed with costs as the authorities
are quite clear on the subject." The case subsequently went
to trial upon the other pleas, on which issues in fa.et had been
(b) 15 C. B. 562; S. C. 1 Jnr. N. S. 625; 2, L, J. N.S. C.P. 121,
(c) 15 C. B. 566; S. C. l Jnr. N. S. 626; 24 L. J, N. 8, C. P. 1~
(cl) , Jur. N. S. 693, Exch. (e) Id. lb., 72.
(/) See a1ao Fikh v. Jone,. 6 E. and B. 238
(g) Opivm C<UU, Perry, O. C., 226,227.
(h) Dvlvbdlu Pitambaf'tUIJI v. Ramlal TWuraidcu, Perry, 0. C.•
232; B. C. 5 Moore LA. 127.
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BOJIUUT HIGH COURT UPOBT8. 57
joined, and the plaintiffs, notwithstanding another struggle 1875.
made for the defendant at the trial, obtained, on the 11th PA'RAKB
November 1859, a verdict against him for Rs. 11,001-8-1 (the°.~?.~~-
and costs.
IIDOllll~ claimed) BRA'!
The contracts1 sued upon in that case and in the analo- RileoaoA •
"·
Dou..BBJ>KA'&
gous cases npon the Stat. 8 and 9 Vi~. cited in it, were the .
contract arising upon either the express or implied request
of the principal that the agent should pay the amount of
the l088e8 incurred on the wagers for the pru,.cipal, and the
express or implied contract that the principal should remu-
nerate the agent for his services as agent. The contracts
aoed upon were not the wagering contracts themselves, bot
contracts collateral to them. It may be gathered from the
eases relied on by Sir M. &asse, from his own decision, and
from .Rouwarne v. Billvn.g (i), Jo,eph v. Lutwyehe (j), aJ1d
other cases, that the fact that a person bas constituted an-
oUaa- person his agent to'enter into and conduct wagering
transactions in the name of the latter, bnt on behalf of the
former (the principal), amounts t.o a request by the principal
to th~ agent to pay the amount of the losses, if any, on those
wagering transactions.
The decision in Joravermal Sivlal v. DadalJMi Beramji
baa been followed in numerous instances in the Supreme and
High Courts [ of which unfortu~tely o~y one, Tribkuvandda
v. Motilal (A), has been reported), and, except in the case of
collateral contracts entered into or arising since Bombay Act
III. of 1865 came into force, bas never been departed from.
The law, as laid down in that case, is still the law in all
partB of British India other than the Presidency of Bom-
bay, throughout which Bombay Act III. of 1865 is in opera-
tion. The only item in the account (the subject of this
llllit) of a date subsequent to the coming into force of Bom-
bay Act m. of 1865 is one for interest. The 4th section
of that Act expressly declares that the Act " shall not be
oonatrued so as to give it a retroepective effect.'' If, under
aach contract or usage as the plantiffs may prove, they would
(1') 15 C. B. N. 8. 316. (11 10 Exch.614.
(k) l Bom. H. C. Bep. 34.
I 244.-h •
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58 BOKBA Y 81GB COU&T · BIPO&TS;
1876. have been entitled · to interest upon the moneys due ~

PA.'a.u.a them in respect of the collateral contracts before the Act
~;:~a:!:· eo
came into force, they will be still. To hold that interest
BBA.'I upon moneys due on collateral contracts, entered into or
"· .
R.uaoa»A.'s OIM8ing before the .Act came into force, ceased to run from
Dur..uB.l>JU'B •
. its .commg• •
mto . to the Aet a retl'06-
fiorce, would be to give
pective operation. - Neither to collateral contract, of such
date, nor to any claim for interest arising thereon, is Bombay
Act III. of 18!>5 applicable. That Aot was passed to sup-
ply the defect which Joraverma/, Sivlal v. Dad.abhai Bera.n~i
and other aimilar cases disclosed in Act XXI. of 1848 (which
excluded suits on wagering transactions), and to close the.
doors of the courts of justice in this Presidency to sui\s.
upon contracts collateral to wagering transactions where such .
•
collateral contractij have been entered into or have arisen
since the Act came into force, a purpose which it bas effec-
tually answered, but the Act was never intended to be appli-
cable to prior contracts. Supposing then the plaintiffs to
have been only the agents of the defendant, and, as such.
to have entered in their own nam63 into the wagering ·trans-
actions on his behalf, the authorities already quoted show
clearly that, notwithstanding that the commission and bro-
kerage were earned in respect of services relating to wager ..
ing transactions, this action would lie for that co~ission
and brokerage, and further that, unless the defendant, before
the plaintiffs paid losses an those wagering transactions
for him, had countermanded their authority as agents, and
forbidden them to make such payments, they wo1dd, be en..,
titled to recover the amount of those paymente. Assuo:\ing,
however, ~t the plaintiffs were, as the defendant alleges.
his partners in the wagerin&' transactions, they woold still,
nevertheless, be entitled to recover from him his share, ~
least, of all losses which they have paid for him, unless it can.
be shown that, before they made such payment, he forbade
them to do so. Lord Wensleydale says (6 Ho. of Lords 417) i
" The law in ordinary partnerships, so far as relates to th.~
powers of one partner to bind the others, is a branch of the
Jaw of principal and agent. Each member of a complet&
•
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l!Olflil'. 81GB . COURT Rl:POK"rS, ~9
partnership is liable for himself, and, as agent for the rest, · 1875.
binds them upon all contracts made in the course of the or- P.t'RUB
.
d 1nary scope of t he partnersh'1p b usm~s.
. ,, M r. L m
' dley BBA'I
Gov,.RDBAN'
Hn1-·
<Vol. I. 743), in discussing the subject of contribution 11.nd 8 1 !~'
indemnity between partners, says :-" It is to be obse~ed R.usoR»•',s
. , DULABBDBA I
t hai every member of an ordi nary fi rm 1s, to a cert.am ex- ·
tent, both a principal and an agent. He is liable as a prin-
cipal to the debts and engagement.'! of the firrq, and he is
entitled to contribution from his co-partners ; for they have
no right to throw on him alone the burden of obligations
whic~ ex h.ypotht>..lli,, are theirs as much as hi!!. Again, each
member, as an agent of the firm, is entitled to be indemni- • · •
fir) by the firm against losses and expenses, bona fide in·
cnrred by him, for the benefit of the firm, whilst pursuing
t.he authority conferred upon him by the agreement entered
'into between himself and his co-partners."
There was an unreported case (.Aban SM SahPh Ali v.
Kassir,fo Baba SaJieb Holkar and other.,) before Sir Mathew
Sausse, C.J., in which the plaintiff filled the character as well
of partner as of agent (in the strict sense of that term) with
the defendants. 'fhe suit was one which had been instituted
at the Eqnity Side of the late Supreme Court, but was decided
in the High C~urt. It may be useful to quote in extenso the
following note of Sir M. Sausse's judgment :-
" This is a demurrer for want of equity to the plaintiff's
bill, which prays for an account of partnership tran8a.ctions,
between the plaintiff and the defendants, in respect of opium
iime-barga.ins or contracts which they bad mutually a.greed to
enter into with third parties through the agency of the plain-
tiff: who also claims, under the partnership agreements, a
brokerage or commission upon each of those transactions, a.a
well as interest upon advances made by him for partnership
pvposes.
· "The plaintiff and defendants, having agreed to speculate
ia opium time-bargains, on the 7th February 1861, entered
.llto the following agreement in writing :- ·
: " ·' To A.ban SM Saheb Ali (the plaintiff), written by the
.....,.iPt:d· As to l;>argains for chests of opium by the
• •
Digitized by Google
60 BODAY HIGH COURT RrPOtml.
1875. fixed time of 25th February 1861, chests will be sold and will
PA'Ru:H be purchased, and earnest money will be paid and received.
oovABDBAN· v· h Jd~ ...... . to be en tered
BHA'i HARI· 1t a ~s .w.anga1··
Jl w1
·11 cause t hese bargams
BRA'•
11,
at your place. Do you be pleased to enter the sawe. For
'RANsoRnA'~ the bargains you may enter, do yon be pleased to send notes
DULilJIDBAII. contammg
• • t h e part1cu
· ·1ars. 7t h F ebruary 1861,
.
"The plaintiff and the several defendants subscribed for
the number of shares attaches to their names respectively,
and in the following form, which is that adopted by the first
defendant:-' In this I have eight a.nnas whether profit or
loss be obtained at the rate of eight annas.,
• • "The plaintiff bad one-sixteenth share only. It was orally
agreed that he should receive a brokerage or commissi8n
of two rupees per chest upon all bargains, and also interest
at 9 per cent. upon all advances made by him in payment of
differences un'der the partnership agreement.
"The plaintiff, with the knowledge and consent of the
other ·partners, received from, and paid to, third parties
several sums on.account of differences. The payments hav-
ing largely exceeded the receipts, a loss accrued to the part-
nership, and, when the plaintiff called upon the partners to
pay their proportion of the losses which had been paid by
him in conformity with the partnership agreement, the de-
fendants refused to contribute. The plaintiff then filed this
bill, and the defendants demurred for want of equity. The
defences relied upon are' : 1stly, that such 'time-bargains•
were rendered illegal by the Indian Wagering Act XXI. of
1848; 2ndly, that, by Hindu law, such wagers or time-bar-
gains are illegal.
" In conformity ·with decisions upon the analogous Eng-
• lish Wagering Statute 8 and 9 Vic., C. 106 (from which the
Indian Act is almost literally copied), this Court has re-
peatedly decided that wagers are not rendered illegal by Act
XXI. of 1848, and it has so held very recently (l) in an
(l) On the 10th August 1861. Hr. Anstey then strongly ineisted on the
illegality, by Hindu Law, of wagering traneactiona, and cit.ed I Borr. 416,
621, Ed. 1st ; Bellasia R. 72; Morris, Part Ill., Sel. Ca. 8. D. A., p. 33;
and Manu Ch. VIII., pl. 7, andCb. IX., pl. 221 to227; butwitbout au-.
An !'ttempt then made by bim to bring the cue within the Bngliah lan
&ga1nst forestalling, regrating and engroeaing, likewise failed •
•
•
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llOlfBAY HTOB COURT RIPOJlT8. 61
action brought by the present defendant, Kassiriv B,ba 1875.

----
Saheb Holksr, against Ramlal Thakorsidas on the Plea P.a.'R.\KH
00VABDBAK·
Side of the · late Supreme Court, when a defence similar to BHA1 1 BARI·
the present was relied upon by Raml».l. mu.'1
"·
" Legis
· 1at1on,
· · E ng1an d an d 1nd.1a, wit
h oth m · h respect to RAwsoeo.a.'a
Dui..a.aBDa.a.'1o
wagers, is very similar in character to that which took place
nearly two centuries ago with respect to other contracts,
when the Statute of Frauds (29 Car. II., C. 3), in the 4th
and 17th sections, declared that no actions should be brought
on certain contracts, and that a certain other class of con-
tracts should not be allowed to be good.
• " Those contracts were never held to be illegal. In the
borry an~ excitement of commercial activity, they are daily
entered into in England, but, o.lthoogh not legally binding
upon the contracting parties, they yet form the legitimate
subject of partnership deali~gs and accounts which are there
investigated and enforced by courts of law.
"With a view to the protection of legitimate commerce
anJ honest tmding from the evil conseqnences of this widely
•pread practice of gambling in India, it might, on the
w~ole, have been better to have declared such wagers to be
illegal, and not simply null and void, but that is for the
Legislature, the province of courts of justice is to administer
law as they find it, and ~ot to make it.
"The first ground of defence then fails altogether. It
bas been strongly urged at the Bar that the Privy Council
bas not yet pronounced any judgment npon the point that
wagers are illegal contracts by .Hindu law, and that it was,
therefore, open to the defendants to rely npon that defence.
"Although there was no express decision upon that PQint
in the jadgment delivered in 1850 by Baron Parke in Dulab-
daa v. Ramlal (m), yet there was a very strong expression of
opinion by the Privy Council that the authorities referred
&o in the arguments did not support the proposition that
1l'lger8 or time-bargains were illegal by Hindu· law; and
ia the cue of Raghunath Ohotalal v. Manakchand (n), which
(111) Perry 0. C. 232. (n) 6 Moore I.,.A. 251.
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62 ~VIIAY HIGH COURT BIPOJlTS.
1876. was decided in 1856, this point of illegality was not raisea,
PA'auH or adverled to, although it would, if supported, have led to
Gov ARDHAN • d . .
BsA'1 HAIU· a contrary ec1s1on.
Ba:" " All the authorities relied upon in the present argument
RANsoaoA·~
D tlLABBDHA 8 were brought before the late Supreme Court in 184,9 in the
case of Ramla.l v. Dulabdas, (o) but there was an unanimous
judgment of the CQurt that wagers were not illegal by Hindu
law. It is so far re., judkata, but, alter hlfving examined.
• all the authorities referred to in argument and in the judg-
ment of the Court in that case, together with any other
which I have been able to discover, .I fully concur in the
soundness of that decision, and with the observations of Chief
Justice Perry, which are to be found at pp. 227-28.
"In Halhed's Gentu Law (published in 1775) tlie text of
Y:ijnyavalkya is given, by which even a common gaming
wager is directed to be enforced ·by law, if made publicJy in
a recognised gambling-house 'and the king's share pai1/
and in the Mayukha, Chap. X.XI., pl. 2, the author treats
Section 224 of Chap. IX. of Ma.nu (which has been relied
upon in argument for the defendants in support of the
demurrer) as declaring the punishment of gambling 'without
the permission of the kiqg.'
" After such a. c)ear recognition of public gam bi ing-houses,
and of gambling debts being recoverable by the aid of the
State, it would, in my opinion, b~ impossible to contend
successfully that all wagers are contrary to the spirit of
Hindu law, or to immemorial and generally accepted Hindu
usage. Indeed, so far as usage is known, it is in favot1r of
the recognition of wagers as a head of legal contract. I
entertain no doubt that wagers are not illegal contracts by
Hindu law beyond the specific instances in which some de-
scriptions of them were prohibited by a recognised law giver,
such as Manu, or by the ordinances of a sovereign.
'' The state of Hind~ law on this subject appears to have
been very. analogous to that of British law before the Stat.
8 and 9 Vic., C. 106, until which period wagers .generally
(o) Perry 0 . C. 22,.
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JSOMBAY HIGH COU.ltT BIPOBT'8. 63
were -lawful contracts, although particular descriptions of 1875.

them, such as gaming with dice, cards, &c., were rendered PA'&u:a
. GovARl>HA!l·
illegal _by Statute. BHA'1 H.uu-
.11HA'1
" As it was stated in argument that a similar defence was "·
.sed
rai
. d d. b f
m a case now epen mg e ore t e
h J d . . R.ANS01U>A'8
u ges s1ttmg at DvuBKDBA's
the Appellate Side of the Court, and that a question upon
the legality of' wagers or time-barga.inJ ( Vdyad& Vyapa.1·)
baa been sent by those Judges to the Hindu law officer for
his decision, I have procured both and find his reply to have •
been that there is no specific provision in the Shastra in
respect of such a transaction.
" I refer to it, not a.s authority upon the subject, but to
show that, as far as oan be ascertained from Hindu works,
either translated or in the vernacular, there is no prohibition
to he found against wagers or time-bargains, as a general
head of contract;
'' The subject-mat.ter of partnership dealings in the present
case was not of an illegal character, and, upon the facts
stated in the bill, the defendants must abide by the~ con-
t.ract with the plaintiff, and contribute their share of the
losses incurred as. woll as pay the stipulated brokerage on
the various tra.nsacbions entered into by him npon their be-
half." Sir M. Sausse then overruled the demurrer with
costs.
The Subordinate Judge having overlooked the bearing of
the law of partnership upon the admission of the defendant
that he had entered into time-bargains in partnership with the
plaintiffs, we must (except as presently mentioned) reverse
his decree. As there must be a new trial, we do not purpose
now to express any opinion whatever upon the questions of
~ ' viz., 1st, whether the plaintiffs were simply agents, or
2nd, whether they were agents and partners, or 3rd, whether
they were partners only of the defendant in th4: transactions
oat of which this suit has arisen, or in any one or more of
those transactions. All of those questions we leave open
for determination by the Subordinate Judge upon the new
iriel, as well aa the amount of the balance or balances (if any)
•
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• -
BOKBA Y BJOB COU&T BSl'Oll'l'8.
=~~--
18'15.
P.A.'uu
au'i
•·
doe from the defendant to the plaintiffs in any one or more of
the three capacities above mentioned. In the inTestigatiou..
of those questions, it will be important that the Subordinate
J odge should carefully consider the question 88 to the genuine-
R.AJ1soa»A'e ness of Exhibits N08. 26 and?:;, or of either of them. · In
l>uL.A.DJ>IU'S d .
omg so, he may resort to oompanson . of t he handwntmg
..
in those documents with that ,in Exhibits ~ . and 31, which
are admitted f>y the defendant to have been written by him.
The Subordinate Judge may, if he thinks fit, take the evidenee
• of independent experts as to the bandwritmg in Exhibits 26
and 27 as compared with the admitted exhibits. The court
below may very possibly have been right in deeming the
dealings between the plaintiffs a.ad defendant to be Batta
transactions or collateral to such transactions, but what bas
been already said 88 to the law of this case shows that to be
an immaterial question. The Subordinate Judge having
held that the defendant failed to prove his ~ross deDl8Dd of
Rs. 5,019-9-0, or any part thereof, and the defendant not
having appealed against that finding, we consider it con-
clusive. upon him. He, therefore, cannot be permitted on the
new trial to re-open that question. If his contention be true
that the dealings sued upon by the plaintiffs were dealin~ in
partnership between them and himself in his individual
capacity, and not with his firm of Sha NathubMi Ransord'8,
which be avers to consist of several partners, he could' not
properly have set up as a counter-claim in this suit the balance
of Rs. 5,019-9-0, which he alleges to be due to that firm .
Any attempt to establish that claim should be in a suit to
which all of the members of that firm were parties.
Except 88 regards the counter-claim of Rs. 5,019-9-0 set·
op by the defendant, the Court reverses the decree of the
Subordinate Judge of th~ 28th of January 1871, and rema~ds
the cause for a new trial on the merits, at which regard should
be had to the observations contained in this judgment, a copy
of which accompanies the decree. Costs of this appeal and
of the cause are to abide the result of the new trial. The
English memorandum of appeal must be amended by render-
ing its heading conformable to that of the plaint and suit.
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~lfBAY HIGH COURT REPORTS. 65
[ APPELLATE CIVIL J URIRDWTION.] 187!',

March 11 .
Cr06s Special Appeals No,. 542 of 1873 and 90 of 1874.

No. 542.
KRISHNA 1JI VYANKTESH •• • •• • Defendant and Appellant.
PA'sou&ANo deceased
his son V' y ANKA,JI ••••••
'
by} Plamtiff
. . and Re.~pondent.
No. 90,
P!'NDURA.NO. deceased, by } Pl ._1·1r d A ll t
his 80Il Vy•lJTT•'
A.1HU\.JI ••• •••
a-i,i iv an ppe an.
KR1saNA 1JI VYANKTESH ••• ••• Defendant and Respondent•
Tle C()flfptiram,e IM(lht of a.utnority of Jlil,dJ:s/iard. and Mayul,:ha. in tk
SOIJlliern MaratM. Country.
lis West.em India, on question, of inheritance, the first place ii aaigned
to the llitabhara, and only a subordinate, though still an import.ant one,
to the :!ilayakba, 011 the authorit7 of the reapoD.881 delivered offloially by the
~ria of the oonrt.s and oral statements of persons learned Jo the Hindu
law ol this PJ'ellidency.
Bdhd:ji KIUAi'lldth v. Anandrov Bluultar commented upon.
THESE were cross special appeals from the decision of
S. Tagore, Assistant Judge at Belgaum, amending the
decree of the Subordinate Judge of Bigalkot.
Pandorang brought this suit for the possession of certain
lands and other property, on the allegation that the same
belonged to his half-brother, V asapa, who died childless,
leaving him surviving his widow, La.kshmibai, that La.ksh-
xnibai died on the 20th December 1864, and that the
plaintiff was entitled to the possession of the property claim-
ed all the next heir of Lnkshmibai's husband. Krishnuji
asserted his own preferential right to the property as a.
nephew (brother's son) of the deceased V asapa, e.nd also
claimed part of the property under some other rights. The
Subordinate Judge, on the authority of the Vyavahar Mayu-
kba, held that the defendant .Krishnaji, the nephew of the
deceaaed Ve.sap§., had a better right to succeed as his
(Vaaipa's) heir than the plaintiff, who was V asapa's balf-
brotber. The first. court accordingly dismissed the plain•
• 244-i
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66 BODAY HIGH COURT RSPORTS.
1875. tiff's claim. In appeal, Mr. Te.gore we.s of opinion that the
KRISHNA'JI authority of the Mitakshara we.s paramount in the Mare.the.
VYANXTBSH •
"· Country, the Mayukhe. bemg used only e.s a secondary autho-
P•'NI>V&uo. rity, e.nd held the pla.intiff entitled to succeed e.s heir of Vasapa
under Mitakshara, Che.pter I., Section 4, pl. 6, and West r..nd
Bilhler, p. 129. He, accordingly, decreed to the pla.intiff
part of the property claimed, and threw ont his cle.im to the
rest, on the ground the.t it was a.liene.ted for proper and
•
necessary purposes according to Hindu law.
In special appee.l, the principal contention we.s, which of

the two authorities, the Mita.kshara or the Mayukha, pre-
vailed in the Southern Mamtha. Country and governed the
present case.
The special appeal was argued before W'El!r and Pmun,

JJ., on the 11th March 1875.
GhanasMm Nilkanth, for the appellant, contended for
• the superior authority of the Maynkhe., and cited Steel, p.
7, 2nd Ed. ; Borra.daile's Pref. to the Mayukha (Stokes H.
L. B., p. 6,) and the_ judgments of Amould, J., in Ramia v.
Bhagi (a), of Sansse, C.J., and Arnould, J .. in Vinayak v.
Laluhmibai (b), and of Melvill and Kemball, JJ., in .NatMji v.
Hari (c). In Viziarangamv. Lakshman (d), Westropp, C.J.,
relied upon the Mayukhe. and not upon the Mitakshara. So
too Sargent, J., expressly gave preference to the Mayukha.
over the Mitaksha.ra in Babaji Kashinath v. Anandra11 Bluis-
kar, decided on the Original Side of this Court. If the Mayu-
kha governs this case, the appellant Krishnaji is entitled to
succeed in preference to Pandure.ng, on the authon"'ty of
Mayukhe., Chap. IV., Section 8, pl. 16; Dinaji v. Bamji (e).
Vishnu Ganash,m, contra :-The Mitakshara is the great-
est of all the Hindu law authorities, especially in Western
India.: 1 Mor. Dig. Introd., p. 204; West and Buhler, Introd.,
(a) l Bom. H. C. Rep. 66, seep. 68. (b) Id. lb. 117, aee p.122.
(c) 8 Bom. H. C. Rep. 67 A.C.J., aee p. 72.
(cl) /tl, lb, 244 O.C.J., seep. 273. (e) Belllllia Scl Ca. 11.
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BO)(BAY HIOll COURT REPORTS, 67
pp. 1, 2; Colebrooke's Preface to the Mit. (Stokes. H. L. B., 1875.
p. 173). Steel and Bormda.ile, so far from s~pporting the KmsHNA'J1
other 81'de, attri'bate sopenor
. authonty
. to t he M'L.C·k
11,11 sharl'
L
over VYANKTESII
11•
the Mayokha: Steel, p. 4, 2nd Ed. ; Borradaile's Preface to PA'Nouiwm..
the Maynkha, (Stokes H. L. B., p. 5). The authority cited
from West and BUhler's Introduction must be considered of
peculiar value, beca.nse it is based on the opinions of Shastris,
as expres.'lly stated there. The opinion of Westn:opp, C.J ., on
the qu~tion of the comparative weight of authority of tho
Mitakshara and Mayukha, in the Bombay Presidency, is ex.
pressed in Nartfyan B<ibaji v. Nana Manohar (J). Babaji
Kaski11ath v. A nandrdv Bhaakar does not apply to the pre·
sent case, as the parties a.re not residents of the island of
Bombay.
The judgment of the Court was delivered by
WEST, J. :-The present caso turns on the compnrative
authority on q11estions of inheritance in the Southern
Maratha Country of the Mitaksho.r:i and Vyavahara. Mayukha..
Their relative weight has been estimated in 1 W, and B.
Introduction I., II., so far a.s an opinion could be gathered
from the numerous responses with which the editors of that
work had to deal, as delivered officially by the Shastris of
the Courts, and from the olt'l statements of persons learned
in the Hindu law· of this Presidency. As to the former the
Privy Council have said, in the case of the Oollect<>r of Madttra
v. Mootoo Ramali1&ga Satlnt?Jathy (g) ·that.,, these opinion11
* * *
could not be shaken without weaken-
ing the foundation of much that is received as the Hindu
law in various parts of British India." The first place is,
on such authority, assigned to the Mitakshara, only a sub.
ordinate, though still an important one, to the Maynkha.
The view there expressed is in accordance with that taken
by the Privy Council in the same case, at p. 435, of tho
" supreme authority " of the Mitakshara., and it has since
Leen repeated by the learned Chief Justice of this Court.
(J) 7 Bom. H. C. Rep. 153 A.C.J., sec p. 167.
t,) 1£ Jlocms I. A. 397, 600 pp. 438 aud 43!).
··~
..
. '·
~. '
Digitized by Google
6i BOllBAT 8108 COCR'r UPORTS.
18i5. At 7 Bom. H. C. Rep. 167 A.C.J., he speaks of the Mitnk-

K.ai.allA'.11 forem~ &Dl0Dg'St legal authorities in Maharastra,"
Shara 88 ''
\'y4.-q;TJWI
"· while of the Vyavahar Mayukha he says, in the same case, at
PA'ncRAllo. p. 169, that it "ranks next in authority in the west of
India and in the Marathi school to the Mitakshaffi." In
cases of direct conflict between the two authorities, there
can be no doubt, after these expressions of opinions, that
preference should, in genera], be given to the Mitakshara
doctrine, although where the Yaynkha's gloss may not seem
easily reconcilable with the text, its construction is to be
received, if not absolutely contradictory to the "supreme
authority."
It is true that that doctrine has, in some instances, been
broken in upon in Guzerat, by an adoption of the different
views propounded in the Mayukha, and in the island of Bom-
bay, wqere a large and intelligent part of the population has.
been furnished by Guzerat, the Mayukha may perhaps rank
as the foremost authority. This is the utmost that can be
deduced from the language attributed to the Chief Justice
in the report of Viziaranyt.im's case. It was not his inten-
tion certainly to lay down a general rule as to the compara-
tive weight of the two authorities at variance with what he
had said but a short time before. The doctrine of the Mayu-
kha was, in a subsequent case (Babaji Kashint.ith v. Anand-
rav Bhaskar), preferred by Sir Charles &rgent to that of
the Mitakshara. in, a case of inheritance between parties resi-
dent in the island of Bombay; but this has no conclusive bear-
ing on a case arising in the Southern Maratha Country. The
conflict of opinion which the learned Judge supposed to have
existed between the Judges in Vizufrangam's case did not
in fact arise ; they were in perfect accord as to the decision
and the grounds of it. The case is not one which could
have much bearing on the one we have now to deal with ;
bnt so far as it does bear on it, it is in favour of the general
paramonnt authority of the Mitaksharn, subject to a local
exception for the island of Bombay.
Accepting the Mitakshara, however, as furnishing the law
Digitized by Google
'BOMBAY HIGH COURT 'REPORTS. 69
by which this case is to be decided, the half-brother's right __18_75_·_

of auooession takes precedence of that of the son of the bro- KRI8HNA
VYANKTJ:8H
JI 1
ther of the whole blood: Stokes H . L. B. 445, 1 W. and B. 11.

P,UWUJU.NO.
129. Severa.I decisions to the same effect have been passed
by the High Court of Bengal, and are referred to in Cowell's
Digest.
The cross appeal of V yank.aji has not been seriously press-
ed. We must confirm the decree of the District Court,
with costs of each appeal on the party appellant therein. ·
Dee1·ee confirmed.
[ APPELLATE CIVIL J U'RISDICTIOS.]

March 16.
Special .Appeal No. 169 of 1874.
•
LAKSHMAN RA'MCHANDRAJ
and others ........ . .'.. Defendants and Appellants.
SARASVATIBA1 1•••• • •••• , •• ••• Plaintiff and Respondent.

Jfai11tenanu-Ance:;tral property-Hindu 1.aw-Purchaaer bond.fide and
/or value.
The maintenance of a Hindn widow is not a charge on any ancestral pro-
perty in the hands of a bond. jide purchaser from her late husband 'a succe,-
l!Orl any more tba.n the payment of unsecured debts due by the family.
Tbe propoaition in Ra.mchunm Tewaru v. Mwaamat Ja800(1,a Koonwer

(2 Agra 134) that the liability of family property, in the bands of a pur-
c:huer, for the maintenance of a widow, depends on the ability of her
ba1band'a heir to support her, dissented from.
THIS was a. special appeal from the decision of W. H .

Crowe, Acting Assistant Judge at Tanna, in Appeal
No. 878 of 1872, confirming the decree of the Subordinate
Judge of Alibag.
The appeal was heard by K1nilBALL and NA NA BHA'1
0 0
Hu1DA s, J J.
1
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1875. Dhirajlal Mathuradaa (Government Pleader) · for the ap-

LAKsR11AN pellants.
RA'MCHAN-
DBA Bli.airavruith Mangeali for the respondent.
"·
8ARAsVAT[ 0
The facts of the case and the arguments on both sides
BA'I.
fully appear from the judgment of the Court delivered by
NA'NA BHA I HARIDA's, J. :-The respondent, SarasvatiMi, a.
1 1
Hindu widow, sued her nephew, MaMdev Narayan (not be-

fo~e the Court now), and the two appellants to recover from
t~em Rs. 48 as her maintenance for 1869-70, and to have
the same declared a charge, during her lifetime, upon cer-
tain ancestral property in the hands of the appellants.
The appellants are bond fide purchasers of that property
for valuable consideration, and the only ground on which it
is sought to charge them with the maintenance is that they
are now in possession of property, which, if it had remained.
undisposed of in the hands of her nephew, would have been
liable for such maintenance.
The plaintiff's husband, according to her own statement,

appears to have died about forty years ago, during the lifetime
of his father. When the plaintiff's father-in-law. died does
not appear, nor is there anything to show when her brother-
in-law, Nariyan, died. But it seems that the property of
the family, after their death, came into the possession of their
sole heir, Mah6.dev Niirayan, her nephew. It further seems
that Mahadev sold a portion of it about seven years ago to
the first appellant, who again sold a P?rtion thereof to the
second appellant.
What the occa.sion for the sale to the first appellant was
has not been ascertained by the court below, though it ap-
pears from the Subordinate Judge's judgment, that tho aale
was made to pay off" debts," which Mahadev N ar:iyan alleg-
ed to have been "contracted for family purposes.'' Whether
such was really the case or not, there is no ground what-
ever for supposing that it was other than a bo1111 fido sale for
valuable consideration.
... Digitized by Google

BOVBAY BJOH COURT RRPORTS. 71
Mah&dev Narayan, among other defences, which it is not I Si5.
----
necessary now to refer to, contended that as in a former suit UKl!HMAK
the plaintiff was declared mititled only to Rs. 12, she could R.A'MCHAK·
DRA
not in this suit claim more. 11.
SJ.RAl!YATI•
BA'J,
The other defendants, the appellants before us, contended
that they were not liable at all, as they were bond fol,e pur-
chasers for valuable consideration.
The Subordinate Judge of Alibag, and the Assistant

Judge in appeal, awarded the plaintiff's claim with costs, de-
claring her entitled, during her life~ime, to receive annually
Rs. 12 from her nephew, and Rs. 36 from the proceeds of the
property in the possession of the appellants, i.e., Rs. 18 from
each of them.
The question which we have, therefore, to decide in this

· special appeal is whether, under the above circumstanceii,
the property in the possession of the appellants is at all lia-
ble to be charged with the plaintiff's maintenance. This
most evidently depend npon what rights Mahadev Narayan
and the plaintiff Sarasvatibai respectively had in the pro-
perty before the sale of it by the former to the first appellant.
If the vendor was absolute owner, it is clear the sale conveye-
ed absolute ownership of the property to the vendee, the
first appellant. But if that was not the case, it is equalJy
clear that by the sale such right only passed to the vendee
u was possessed by the vendor.
Upon the findings recorded by the lower courts, we must

take it that the property in question was the ancestral
property of Sarasvatibai's father-in-law; and such ~ing
lhe case, we must also take it that her husband had, !rom
the time of his birth, a right in that property equal to his
0
father's, which continued to his death, some forty years ago.

In virtue of this right, he might have obtained a partition
of that property from his father and other co-parceners, in
which ea e, upon his death, , a.rasvatibai would have sncceed-
t:'ll to hi share of it. But he died undivided, and, according
Digitized by Google ./ "

'
__1815• to the Hinh bw app'..:C;\b!.? to ~tK'h caees on this side of
t~ India. the pr)p-:-rty veste"l in tl.,:~ ro-parceners, of whom
»u ~ :S~rayan is now the s-:!e snniTor. While in his
~ 4 n. ~ i o n as such, he sold it to the fir.s~ appellant. Unless,
iw. tfierefore, at the time of the sale, 5he had an interest in the
property in the nature of a c ~ 'upon it, it would be diffi-
cult to hold that it did not pa-~ abwlutely to him.
It is contended for the respondent that she had such in-
terest ; that her maintenance was a " charge " on the ances-
tral property; and that, therefore, those who have purchased
it, have done so subject to such" charge.'' In support of
this contention, llr. Bhairavnath has cited to us several
authorities, which we shall now examine to see if they es-
~blish the proposition contended for.
In Shidapa v. Parsya (S. A. 43S of 1871), decided on the
18th December 1872, by Sir Charles Sargent and Mr.
JllStice MelvilJ, their Lordships had not to decide the
question raised here, and they did not decide it. From
the judgment recorded in the case, it would appear to have
been a suit by a Hindu widow to eject a purchaser of
some family property, and her claim was disallowed, their
Lordships observing: "The plaintiff can, if so advised,
bring another action for maintenance, but in the present
suit, as she has failed to establish her claim to the property,
we must reverse the decree of the court below, and dis-
allow the claim." In that case, if they have expressed any
opinion at all on the subject, it is one which rather
doubts the soundness of the proposition now' con~nded for
siJU)e they remark: "In the present case, the defendant is a
stranger, and the property, in respect of which the action is
brought, wonld be liable (if liabl.e at ~ll) only under certain
circumstances, the existence or non-existence of which can-
not be ascertained without raising issues foreign to the con.
tention between the parties, &c. ''
In the case of Mussumat Golab Koonver and others v. The
Oollector of Benares and another (a) there was no queation~
(a) 4•Moore 'I nd. App. 246.
igiti,ed by Goo"gle
ROllBA Y HWH COG RT REPORTS. 73
a.<1 in this case, between a widow and a b0'1tl1, fi(le purchaser _ _187
_ 5_._
for value of ancestral property, and it cannot, therefore, be LAKsBllAK
RA'.IICHAN•
said to have decided the point _now raised. It was a. case of DRA
l'.
confiscation by Government under Bengal Regulation XL of 8ARAt1VJ.TI-
1796 of the whole property of a joint Hindu family, consisting BA'l.
of the widow and four sons of the last owner, for an offence of
which three only of those sons were guilty, the fourth being
a minor, and their Lordships of the Privy Council held that
the confiscation did not affect the right of the fourth son,
or of the widow to her maintenance out of the whole of the
ancestral estate. They virtually declared liable toconfisca.tion
by Government such portion only of the whole estate a.<1,
upon a partition, would have fallen to the share of those
three sons ; and the widow's right to maintenance would ap-
pear to have been tacitly conceded by Government, for the
j1ulgment says ( p. 258 ): "Nothing was urged at the bar
against this right. "
In Mussumat Kltv.krOQ MiB'tain v. Jhoom,uck Lall Das11 (1,),

the question now raised did not properly a.rise between the
parties, and though there is in the juqgment a dictum to the
effect that the widow "could make the estate chargeable
with it into whose hands soever it had fallen under the fore-
closure," no authorities a.re cited in support of the position,
and it rather assumes that her claim for maintenance 1s in
the nature of a. "lien" on the estate. Besides, this dictum has
reference to the contention in argument that as the widow's
claim for maintenance was a charge on the estate, therefore
she had an interest in keeping the estate in the family ; and,
moreover, the estate was only declared to be chargeable, if
the wido'1" failed in getting her maintenance from the mem-
ber~ of her late husband's family.
The case of Ramchandra Dikshit v. Sa'l-itribai (c), prin-

cipally relied upon by the Subordinate J ud~e, and strongly
pressed upon our attention by Mr. Bha.iravnath, though it
(b) 15 Cale. W. Rep. 2113 Civ. Ru!.
(c) . 4 Boin. H . C. Rep. 73 A.C.J.
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_ _1 ~ might at first sight seem to do so, when it lays down that "By
R A MCHAN· Hindu law the maintenance of a widow is a charge upon the
L 4 ~HJU.N
nu whole estate, and, therefore, upon every part thereof,'.' does not
S~v 4 n. in reality determine the question now before us. Whether
BA'I.
her maintenance is such "a charge "or not was not the point
the Court was called upon to decide in that case, and we have
the authority of the learned Judge himself, whose judgment
contains those words, for saying that it did not decide that
point; for, when in a la.~r case (d), the case of Ramchandra
Dikekit v. Savitribai, was cited before him in argument as
deciding that " the maintenance of a Hindu widow is a
charge," &c., he observed: "The question there was as to
whether one brother could be sued alone, and it was held,
that he could "(e).
The case of ShrimatiBlwgabati Dasi, v. KanailalMitter (f)

cited by Mr. Bhairavna.th in support of his proposition, is in
reality more against than for his client. It decides (1st) that
"as against one who takes as heir, a Hindu widow has a right
to maintenance out of the property in his hands," which, no
doubt, is as good law in this Presidency as it is in Bengal,
bnt which does not apply to the present case ; (2ndly) that
she also has a right to maintenance out of such property in
t.he hands of anyone who takes it with notice of her having
set up a claim for maintenance against the heir"-as to the
application of which to this case it is sufficient to say that it
has never been contended that any such claim had been set up
by the plaiptiff, or that the appellants had any notice of it when
they purchased the property sought to be charged; and (8rdly)
that " by the law of Bengal she has no lien on the property for
her maintenance age.inst all the 'World irrespective of such
notice."
The .case of Prosonno Ooomarsein Mozoomdar v. The

Revd. B. F. X. Barbosa (g) does not seem to us to apply to
(d) S. M. Niolarini DaJJi v. Nakltanlal Dull, 9 Beng. LR. 11 •

. (t) Id. lb., p. 'I!/. (.1) 8 Beng. L. R. 225.
(g) 6 Cale•. W, Rep. Civ. B. 263.
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the present case. There "a charge" in the strict sense of __I8_i5_:__
the term having been created by will upon an entire estate l.AKSHMAN
RA'MCHA!i•
in favour of the respondent, and a portion of such estate haviug DRA
come into the appeHant's possession as purchaser, it was held "·
8ARASVATl·
that the person in whose favour the charge was created was BA'l.
at liberty to J>l'OCeed against the party in possession of any

part of the estate subject to the charge, leaving such party
to recouJ> himself by contribution from his co-sharers. To.
apply this decision to the present case, one must &.'lsume the
very point that is sought to be est.ablished, namely, that a
Hindu widow's clsim to maintenance is" a charge" upon the
estate.
The learned authors of the Digest of Hindu Law certainly
srem inclined to think that it is such a charge, and that any
family property in tho hands of a purcha3or should, therefore,
be regarded as.subject to it (h.); but they do not support their
epinion bf any reasoning or texts or decided cases, to enable
one to determine whether it i~ well founded.
We last come .to the cases of Heem Lall v. Mussumat Ko11-

aillah (i)and Ram Ohuru1' Tewaree v. Mussumat Ja,uodaKoon-.
1eer (j) also relied upon for the respondent.
ln the first of these cases the faots arc not fully set out in.·
*he reporl ; but sufficient appears in it to enable one to guess
with tolerable certainty what they were. It w~uld seem that
the amount of the widow's maintenance had been fixed at
"·fonr rupees per month,'.' which must luwe been done either
by a family arrangement or by a decree of the Court ; that
express mention wa.s ma.de ofit in ,the st1le deed, which also
stipulated that. that sum should be paid .by the v~rulor-cir-
cnmstances pointing to the inference that the parties were
dealing with each other· upon the he.sis of that maintenance
being actually charged 011 the property, a.nd that the vendee
was anxious to free it from the charge; that the widow was no
(A) We.t."nd Buhler, Book: II., ,ntroduction, p. xxxvii., para. 2; Ibid.
p. 32.
(i) 2 Agra l2. (j) Id. lb .. 134.
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76 BOJIIBA \" HIGH COC:RT REPORTS.
e 18i5. party to the deed ; and that from the moment she came to
----
LAKSH!IIAN knowofit,she" vigorously opposed the mutation of names." If
RA.JICHAN·
DRA
such were the facts, the general question "whether the widow
has an a.ctnal lien on the proprety of her deceased husband, or
only a right of action against the heir personally, who takes
the property," WM by no means necessary to the detennination
of the caso, BJ1d the court's ans~r t-0 it, that " the widow's
right is a charge on the property which formed the esj.a.te of
her husband," stands upon no higher footing than a dfrtum.
But if we have not rightly conjectured the fads, the case is
certainly a direct authority in support of Mr. Bhairavnath's
,;:ontention, though it is not very clear why the court, hold-
ing as it did, and dismissing the purchaser's appeal, should
h11ve ordered that" the decree should be executed first against
the heir Madho Singh" (who was not a party to the appeal)
"and if he fails to pay it, then against the other defendant,"
the purchaser. If the widow's right was "a charge,'' why was
she not to be at liberty to realize it out of such property in
the first instance, she preferring so to do ?
In the other case of Ram Clwrun Te'll:m·ee v. MusS'Umat
Jasooda Koonwer (k), the doctrine of the widow's mainte-
nance being" a charge" on the estate was sought, but in vain,
to be carried to its logical consequence. The respondent,
nuder Section 348 of the Civil Procedure Code, objected that
•, she shouid ~ permitted to enforce her cJo.im against the
property purchased by the appellant in the first instance, and
not, as the Principal Sadar Amin had decided, afterunsuccess-
fully endeavouring to enforce it " ·against her husband's heirs
and their p;operty. The objection, however, was disallowed, •
although it had been held that the appellant bad purchased
the property in execution of a. decree in his own favour,
which the heirs, in collusion with him, had allowed to pass
against themselves. This case lays down that property in
the hands even of a collusive purchaser is not liable, except
under certain circumstances ; and that the widow should pro-
ceed in the first i~stance against the heirs and their. property.
According to this decision, whether a widow's maintenance in
(kl Vide Sup.
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DOXMY lllGH COURT REPORTS. 77
a given case is or is J?.Ot a charge upon family proper·ty in 'the 1875.•
hand.'i of a purchaser, must depend upon whether her hus- -LA~i'l~M~;;
bund's hoirs are or are not able to support her-a proposition RA'MrnAN·
DRA
which appears to us to be unsupported by reason or authority. "·
If her maintenance is really "a charge " upon the alienated 8ARA::IVATI·
BA'I.
property, it is not easy to perceive how it can cease to be so

by the fact of the heirs having property which may be their
own acquisition, nor, if at the time of the alienation the pro-
perty does not pass to. the alienee burdened with any such
charge, how one can well be imposed upon it subsequently,
merely because the heirs happen at the time to. have no pro-
perty, which may be the result of their own improvidence.
These authorities, then~ do not seem to us to establish that
the m.aintenance of a Hindu widow is a charge on any such
property in the hands of a bona fa.le pnrcha8er from her ]ate
husband's successors, and one of them at all eventais certainly
an aothori ty the other wa.y (Z).
The texts, which relate to maintenance, occurring in the
principal works of a1:1thority on this side of India, la.y down
generally that he who inherits a person's property is bound
to maintain those who111 that person was himself bound to
maintain (m). But it will be seen that similar texts also en-
join upon him "the payment of debts'~ (n), "the iwit·i alion
of the uninitiated as well as " the marriage of the ,unmarried
members of the family" (o), and the perfol"m'anre of certain
ceremonies for the spiritual benefit of that person (p), and
all these are, in Enghish works on Hindu law, spoken of as
"charges on the inheritance" (q) no less than the mainte-
• nance of the dependent members of his family. If the latter,
therefore, is" a charge'' on the inheritance, it is so in no other
sense than that in which the former are so.
(l) 8 Beng. L. R. 225.
(YII) Vyav. May. Ch. IV., Sec. IV., 30; Ibid. Sec. IX.. 22; Ibid Sec. XI.,
I, 3, 9, 12; Mit., Ck. II., Sec. I., 7, 12, 13, 20, 21; /1,id Sec. X., 5, 16.
1•1 Mit. C,'h. II., Sec. XI., 24; Vyav. May. Ch. V., Sec. IV., 12.14, 16, 17, 19.
(") Vyav. May., Ch. IV., Sec. IV., 38-40; Mit., Ch. 1., Sec. VII .. 3-6.
u,12 Coleb. Dig. 576,577 (Mad. Edn.); Vyav. May., Cb. IV., Sec. YIU., 29-
(q) I Str. H. L. 166, liO.
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78 BOMJIAY HIGH COURT REPORTS.
Now it has been held both in Bengal and here that a cre-
LAKSRMA1'
ditor cannot follow the assets of a deceased Hindu into the
RA 1MCHAN· hands of a bona fide parchaser for valuable consideration .
DRA
See S,.mbassapa v. Jfoodkap11, (r),Naroo Httree v. Konheir-
"·
8ARASVATI•
BA l. 0
Mttn-0hur(s),Jamiyatram Ramchandra v.ParbhudasHathi (t),
and U,truYpoorna Da,s1tia v. Gunga Narain Paul (u).
It is indeed laid down in a work of great authority that
<•debts followth.eassets.into whosesoever hands they come"
(v), hut; as observed by Westropp, C.J., in Januyatram Ram-
clumdra v. Pu1·bhudas Hathi (w), the proposition is '' too broad-
ly stated," and is not warrc1.nted by the aQth.o rities upon which
it is based.
If, then, property in the hands of a bond falll purchaser
cannot be pursued by a creditor of the d·eccased proprietor, it.
is difficult to see how the case 0£ a widow, whom he was le-
gally bound to maintain, no less than he was to pay his debts,
is to be distinguished. What is there 'to render such pro-
perty liable in the one.case ttnd not in the other?
Moreover, it is difficult to understand when this '" charge on.
the inheritance" is said to attach to the family property.
The duty of maintaining a female le~lly rests with her hus-
band from the moment of her marriage. No distinction ts
drawn in the Shastras between wives and widows; if, then, her
right to maintenance becomes a charge from. th,e moment of
marriage, every aJienation made subsequently is subject to
such burden-a liability capable of being enforced at a.uy
time when thQ wife or the widow is unable to obtain mainte-
nance from her x:elatives.
We ·must, therefore, reverse tl10 decr~es·of the lower courts·
so far as they affect the speci&l appellants, or the property in
their hands as purchasers. The sum of Rs. 12,.which.t he plaintiff
will receive under those decrees from her nephew Maluidev
Narayan may not be sufficient for her mainteqa.nce; but,.inas-
much as she has chosen not to. appeal against them, and inas-
much as he, Mahadev Narayan, is not before us, we sre unable
(r} 8 Harr. 232. (u) 2 Cale. W. Rep Civ R. 296.
(a) Id. Jh. 289 (t.•) l Str. A- L. 166: 2 Id. 282.
(t) 9 Bom. H. C. Rep. ll6. (w) 9 Bom. H. C. Rep. ll7 .
•
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BOJfBA Y HTOU COURT REPORTS, 79
t~ inquire into, or order any inquiry into, the sufficiency or 1875.

suitableness of that allowance; and as the' special appellants _L.t_K..S_HKAN
__
were improperly made parties to this suit, we think they a.re RA'McHAN-
DRA
entitled to their costs throughout.
"-
8ARA8VATJ-
u'1,
Dec1·ee accordingly.
[ APPELLATE CIVIL J URl8D1rTION.]

March 18.
Regular Appeal No. 42 of 1872.
BA'r AMRIT, widow of J1vA 1 l(Original Plaintiff)
MAHE8HVAR .................. S Appellt:t,nt.
BA' 1 }[A' NIK, widow of MAHESH- l (Original D~fendants)

VAR, and four others ......... S Respondents.
Hiftd• Lau,..- Widow-Manager-Son's widow-Grandaon'a widow.
Alienationa for family purposes of the ancestral estate hy a Hindu widow
lthe mother of a minor son), though she waa not appointed an administra-
trix under Act XX. of 1864, uphold aa made by a defacto manager.
A Hindu died leaving him 11nrviving a daughter-in-law and a grand-
ilOU(the widow and son of a predeceaaed son). Subsequently his grandson
died a minor, leaving his widow (also a.minor) him surviving:
Held that the grandson's widow succeeded in preference to the son's
widow, according to the rule of obstructed heritage, the latter being enti-
tled to maintenance out of the family property_
•
T HIS was an appeal from the decision of Bholanath
Sar:,bhai, 1st Class Subordinate Judge of Kaira, in the
District of Ahmeda.ba.d, awarding to the plaintiff half a
share in a. part of the property claimed by her.
The appeal was heard by WEST and NA.NA BHA'1 HARIDA's
JJ.
Nagindas Tu/,sid{(,8 for the appellant.
Bhantaram Na1·dyan for the first respondent, B&i M&nik.
Dhirajuil Mathuradas, Government Pleader, for the second
and third respondents.
•
•
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80 BO!IBAY HIGH COURT RF.PORT!I.
1875. The fonrth and. fifth respondents did not appear in persoo,
BA'1 AM1t1-r or by pleader.
BA'I Mv~'NIK. The facts, in so far as they are material, and arguments
appear from the following• judgment of this Court delivered
by
NA NA'BHA'1 HARIDA s, J. :-Biti Amrit instituted this suit to
1 1
establish her right to certain property, moveable and un-

moveabl~. and recover possession of · the same from the
defendants.
The fac~s of the case, which are not disputed, are as
follows :-One Ghelabhai Aditram, the head of a joint Hindu
family, died in Samvat 1918 (A.D. 1861-62), leaving some
ancestral property, the subject ·of this suit. The defendant,
Bai Manik, is his daughter-in-law, the widow of his son
Maheshva.r, who had predeceased him in Sa.mvat 1913
(A.D. 1856-57), and the plaintiff Bai Amrit is the widow of
Maheshwar's son, Jivs, who died a minor in Samvat 192·1
(A.D. 1864--65).
The other defendants are Bai Manik's vendees, and as
such are in possession of a portion of the immoveable family
property mentioned above.
The def~ndant, Bai Manik, among other things, cont.end-
ed that she had sold two of the fields mentioned in the
plaint, Nos. 321 and 292, to-pay off family debts; that as to
the rest of the immoveable property, a house and two other
fields, Nos. 456 and 362, she was living in the former and
maintaining ,herself from the produce of the latter, which
amounted only to Rs. 30 a year; that she had always been
in possession of the same from the time of her husband and
father-in-law, and was entitled to continue in possession;
that the plaintiff, being a childless widow, was entitled only
to food and clothing, which she was willing to allow her
according to her means ; that neither by Hindu law nor by
t.he usage of the country or of the caste was the plaintiff
entitled to succeed to the family property ; and that as her
husband, Jiva, being himself deaf from birth and an idiot,
had not succeeded to that propert,y, she could not claim it as
his heir.
• •
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BOIIBAY HIGH COURT REPORTS. 81
The other defendants contended that they were bond, fide 1875.
purchaserM for valuable consideration, the first two from Bai B.n A ~
Manik herself, and the other two from one Bha.iji Raghunath, BA'i M~'imc.
another purchaser from her. •
It has been clearly found by the Subordinate Judge thnt
the sales by Bru. Manik to her first two co-defendants and
to the vendor of the other two co-defendants were for family
purposes, namely, for paying off debts incurred for the
performance of the funeral ceremonies of her father-in-law
and grandmother-in-law, and also of the marnage and
funeral ceremonies of her son Jiva, the plaintiff's husband,
and the appellant he.s failed to satisfy us that the Subor-
dinate Judge was wrong in the view he took of the evi-
d~nce on that point. Bai Yanik at the time of the sales
above mentioned, was the only adult member of the family,
and in management of the family property a.s such. She
wits, moreover, by Hindu law, the guardian of her la.to
minor son and of her minor daughter-in-law, Bai Amrit,
and competent in that cape.city to deal with the family
property for the benefit of the estate : Bai Kesar v. Bai
Ganga (a). It is true that she does not appear to have been
appointed manager by t~e civil court"under Act XX. c,f 1864.
But see_ing that she was mana~er de facto of the family,
her sales in that character of portions of the family property
for ve.luable consideration, which, when obtained by her, was
actually applied to meeting family necessities, cannot, we
think, be questioned. The Hindu law enables even a slave, d
foritwri, therefore, a person in Btii Manik's position, to bind
the family by contracts made under the circumstances found
in this case (a). We must, therefore, disallow that portion
of the plaintiff's claim which relates to the property in pos-
session of the co-defendants e.s purchasers.
AB t.o the rest of the property, which Bai Manik admits
to be in her possession, the question arises what a.re the
respective rights of Bai Amrit, the plaintiff, and Bii Manik,
(o) 8 Bom. H. C. Rep. 31 A.C.J. (b) Coleb. Dig. I. Texts 191-193.

a 244-k
•
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82 BOVBAY HIGH COURT RJCP,ORTII,
18i6. the defendant? It is clear that upon the death of Mahesh-

BA'I AMarr var, in Samvat 1913, during the lifetime of his father,
BA'x M~'?nx. Ghelabhai, no portion of it passed to Bai Ma.nik. She,
no doubt, was entitled to get a suitable maintenance
out of it, but the property itself vested entirely in the
surviving co-parceners, Ghela.bha.i and his grandson Jiva,
unless either of them was by law disqualified to inherit,
in which case it vested exclusively in the other. It has
indeed been contended by Bai Manik that deafness from
birth an~ idiocy excluded Jivn altogether from the inherit-
ance ; that the whole of the property accordingly vested in
Ghelabhai; and that upon his death, it devolved upon
her as bis heir, Jive. and Bai .Amrit being entitled only
to maintenance. If her allegations as to Jiva's deafness and
idiocy were proved, such would, no doubt, be the result ;
but they are denied by the plaintiff, and the evidence in
support of them has failed to satisfy us, as it has failed
to satisfy the court below, that Jiva was either deaf from
birth or an idiot. It is unnecessary for 1;1s to recapitulate
the evidence of the different witnesses which has been
reviewed at somA length by the Subordinate Judge. The
result of it seems to us to be that J iva, though somewhat hard
of hearing, and not by any means a clever boy, did hear what
was said to him in a sufficieti.tly loud tone; that he learned to
speak ; that he was sent to a school, which he att~nded for
about three years ; and that when he left it, at the age of 8, he
was in the fifth class, and had studied as far as the Second
or Third Book of reading. We are, therefore, of opinion
that upon the death of Maheshwar, in 1913, the surviving
members of the family, Ghela.bhai and. Jive., became joint
owners of the whole of the family property, and that, upon
the death of Ghelibhai, in 1918, it vested solely in the
survivor Jiva. Such being the case, it would, upon Jiva.'s
death, in 1921, devolve upon the plaintiff, his widow, Bai
Amrit, unless it be shown that the ordinary rule of Hindu
law does not apply to this case.
It has been contended for Bai lUnik that, according to
the custom of her caste, the property of Jid, upon his
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BOMBAY HIGH COURT REPORT~. 88
death, devolved, not upon his widow, Bai Amrit, but upon 1875. ___
herself, his mother, and that Bai Amrit is entitled only to ,,,
B.t'1 AMRIT
maintenance. In proof of such alleged custom our attention B.t'1 MANIK.

is directed to the evidence of sevelal witnesses, which, how-
ever, we do not consider to be sufficient. It is urged,
indeed, that the existence of such e. custom was admitted by
members of the caste so far back as half a ct:ntury ago, and
in support of this we are referred to Mr. Borradaile's Collec-
tion of Caste Rules. We find in it au answer to Question 6,
given to him by certain members of the caste then residing
in the city of Surat, to this effect :-" When a person at his
death leaves no one but his mother and his wife, the succes-
sion devolves to the mother agreeably to the Sha.stra" (c).
This is perhaps enough to lead one to infer that the witnesses,
who now speak to the existence of the custom, are not
inventing one for the purposes of this suit. But it is by no
means sufficient to establish the custom itself ; and having
regard to the whole of their evidence, and bearing in mind
that it is not shown to have ever been recognised by the
Courts, that the oldest witness (No. 61, who is 72 years of
age,) cannot mention a single case in which it was actually
followed, that the other witnesses, who also depose to its
existence, have, in stating ins~ances, omitted all mention
of the circumstances, or when they occurred, that persons
belonging to, or connected with, the families in which the
instances are deposed to have· occurred have not been called
to prove them, and also thot the. witnesses are not all agreed
as to what the custom really is, we are unable to say that it
is eatisf~torily est!l.blished; and we a.re the more inclined to
this opinion when we find that other members of the same
ca.,te residing at Broach stated to Mr. Borra.daile, abont the
aame time, and in answer to the same question, that
" If thare be no other relation of a deceased man but his
wife and mother, they will divide his inheritance equally
between them'' (d).
(e) Borr. Caste Rulea, Court Library Copy, pp. 14, 279.
(d) Borr. Cute RQ]1111, Court Library Copy, p. 298.
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84 BOKDAY IllOH COURT REPORTR.
1875. Such being our view of the evidence on this point, the
BA'1 A111&1'I respective rights of the plaintiff and Bai Monik are deter-
BA'i ~mx. mined by the ordinary ruled Hindu law, which in a case
like the present, of what is termed " obstructed heritage,"
declares the widow of the deceased to be his heir in prefer-
ence to his mother (e). The Subordinate Judge is clearly
wrong in holding that, according to that rule, the mother
and the widow are both equally his heirs, and the several
texts which he cites in support of his opinion have, to our
minds, little or no bee.ring on the subject. But, although the
widow succeeds in preference to the mother, the latter is
still entitled to get a suitable maintenance out of the family
property. We must, therefore, at the sa.me time that we
fully recognize the plaintiff's right, make a proper provision
for Bai M:inik's maintenance; and having regard to the
amount of the family property in this case, we think sub-
stantial justice will be done by our passing the following
order, namely, (1) that the defendant Bai Manik make over
to the plaintiff a moiety of the moveable property in her
possession, or its value, as found by the Subordinate Judge,
retain,ng the other moiety for her own use ; (2) that the
family dwelling-house be divided into two equal parts, one
of which she is to make over to the plaintiff, retaining the
other for herself to live in during her lifetime; and (3)
that in the same way the two fields also, Nos. 456 and 362,
be divided into two equal parts, one of which she should
make over to the plaintiff; retaining the 'other for her own
maintenance. •
We, therefore, .allow the plaintiff's claim to the extent
specified above, and accordingly modify the Subordinate
Judge's decree, directing Bai .Amrit and Bai Manik each to
pay her own costs, and the former to pay the costs of de-
fendants Nos. 2 to 5 throughout.
Decree accordingly •.
(,) Vyav. May., Ch. IV., S. VIII., I., MiUk., Ch. II., Sec. I., 2.
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BODAY HIGH COURT J!.BPORTS, 8,5
[ APPELLATE CIVIL JURISDICTION,] 1875.

March IS-.
Regular Appeal No. 3 of 187 4.

KRISHNA.RA. 'v JAHA1GIRDA. 1& ... Plaintiff and
Appellant.
Gov1ND TRIM.BAK ......... ... Defendant and Respondent.
Sf&it by one of tr.oo co,sharera to ouat a tenant.
Where a suit waa brought by one of two co-sharers to recover land from
a tenant., not only in the abaence of, but against the express desire of, the
other co-sharer :
HeJJ, that the suit waa not maintainable, and that the plaintiff could
only sue jointly with hia oo-sharer, though the plaintiff was aole manager
of the joint estate,
U1JIQ.M(j 'f', P,mhota:m (S. A. No. 379 of 1873) followed.
T HISquet,wasDistrict
a regularappe.al from the decision of A. Bosan-
Judge of Ahmednagar, in original suit
No. 4 of 1872.
The plaintiff, Krishnarav, brought this suit to recover
from Oovind Trimbak possession of two fields (Survey Nos.
136 and 137), together with a well and trees standing in
No. 136. He alleged in the plaint that as he was willing
to cultivate the fields himself, he gave the defendant notice
to surrender them. The defence of Govind Trimba'lt, amO}\g
other things, was that the plaintiff alone was not competent
to maintain the suit, as there was another co-sharer, who
did not join in the action. The defendant filed copy of a
decree (Exhihit No. 30) passed between the plaintiff
Kri.hnarav and the other co-sharer (Damodharrav), in which
the latter wa held entitled to an equal share in the manage-
ment of the joint property, including the two fields in
qu tion. The Judge, thereon, joined Damodharrav, the
oth r co-sharer, as co-plaintiff, under the provisions 'Of Sec-
tion 73 of the. Civil Procedure Code. Damodharrav filed a
written l:a.tement, and objected that the action had been
instituted without his consent, and stated that he was not
willing to eject the defendant, Govind Trimbak, so long as
h paid the rent. One of the issues raised by the J udgc
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86 BOIIBAT HIOB COURT UPORTB.
____2_~ was, whether the plaintiff alone was competent to main ta.in the
~NARA,'v suit. The Judge at first found that issue in the negative.,
J4BAGIRDA R
"· an d d"1sm1Sse
. d th e pIamti
. .ff's cIaim.
. 0 n t he app1·1cation
. of
-OoVIND
T RIIIBAK. the plaintiff, however, the Judge, on review, reversed this
decision, and awarded the plaintiff's claim on the ground that
as the plaintiff was actually managing the property, he could
maintain the soit alone.
The appeal was argued before KEKBALL and NA NA'BHA·1 1
HumA's, JJ ., on the 15th and J 8th March 1875.

Pandurang Balibhadra for the appellant :-Damodharmv
is admitted to be a co-sharer with the plaintiff in the fielda
occupied by the appellant 88 a tenant. The plaintiff alone,
therefore, cannot sue to oust the appellant, in the absence
of, and against the express wishes of, the co-sharer. He
cited Umanna v. Purshotam (S. A. No. 379 of 1873), in
support of his contention.
Rav Saheb V. N. Mandlik, ronfra, relied upon Sangapp&
V. Sahebana (a).
18th March 1875. KEKBALL, J. :-This is a suit brought
by one of two co-sharers in certain inam villages to recover
possession of two fields, some trees, and a well from an ad-
mitted tenant. In the course of the suit, the other co-
sharer was made a co-plaintiff, and he filed a statement
•
denying the right of his co-sharer to sue alone, and declar-
ing that tho suit was brought without his consent, he being
desirous of allowing the defendant to remain in possession
• so long 88 he paid the l'lllt. The relationship of landlord
and tenant is admitted, so that the only issue for disposal
before us in this Regular Appeal is whether the plaintiff is
entitled to sue in his own name and person to oust the
tenant. It appears that, although the Judge has found that
the plaintiff alone manages the village, lets out lands, and
takes them back at his pleasure, still that right has never been
acquiesced in by the co-sharer Damodharra.v, and that only
three years ago the plaintiff in this case brought his suit
(11) 7 Bom. H. C, Rep, A.C.J. HJ.
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BOMBAY HIGH COURT RBPORT8. 87
against Damodhar to establish his right to manage when 1875.

a decree was taken by consent, Exhibit 30, in which it was KaisHNARA.'v
held that the. plaintiff had failed to prove that he was the JAw.'~~a».1.'a
·sole manager, and it was directed that in future he should TOovnrn
RlllllAK,
transact the business with the consent of Damodharro"v,
providing at the same time for any losses that might accrue
in the event of the one acting without the assent of the
other. Assuming that the Judge is right, in the face of the
award above quoted, in holding that the plaintiff did manage
the village in question so as to bind his co-sharer by his
acts, we think it impossible to hold that he (plaintiff) is em-
powered by his position to bring a. suit, not only in the
absence, but against the express wish, of his co-sharer. In
support of the Judge's decree, we have had quoted to us
the judgment of this Court to be found at page 141 of the
&eventh volume of the reports. We do not think, however,
that that judgment has any application to the present case,
it having been held there that, where a. tenant chose to pay
a co-sharer other than the recognized representative, he was
bound at the suit of such representative to pay over again.
We need not express any opinion on that ruling, for the ques-
tion does not a.rise here. On the other hand, the judgment
in S. A. No. 379 of 1873, decided on the 1st April 1874,
has been brought to our notice, which exactly meets the
present case. In that suit, qne of three co-sharers sought to
obtain rent and oust a tenant, and the District Court. in re-
versing the decree of the Court of first instance, held that
the plainti , as eldest representative manager, could alone
maintain hi action, bat in Special Appeal, it was ruled that •
the plaintiff could only sue jointly with his co-sharers,
"and in that decision we concur. We must, therefore, re-
verse the decree of the District Judge without prejudice,
however, to any right which either of these two co-pa.rceners
may hereafter, either by voluntary partition or by a parti-
tion made in a suit between themselves only, acquire to
proceed severally against the defendant to recover the lands
in dispute, and we order that the plaintiff do pay the costs
throoghout.
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1875. [ APPELLATE CIVIL .JURISDICTION.]

March 2'.
Special Appeal No. 66 of 1874.
Pn~:!:X:.~~~~~<~:.} Plaintiff and Appellant.

l 1 A1 NDURANG VINA1 YAK} DeJe ,;. ndan t and Responden.t
D IKSHIT ... . .......... .
Mortgagu in poueuion-.A.ccoont.
A mortgagee in posae88ion is liable to account for profits arising from
trees planted by himself on the mortgagor's land.
A mortgagee in persooal poasession is, in the absence of any apecial
contract to the contrary, chargeable, with a fair occupation rent, in the
cue of bnildinga pel'IIOnally occupied by him for the purpoee of reaidence
or carrying on trade or busineu, and in the case of land pel'IIOnally occu •
pied or cultivated by him, either with a fair occupation rent or with the
actual net profits realized from the uae of the land.
In aacertaining what thoae profits are, with which the mortgagee ought
to be credited in reduction of his mortgage debt with interest thereon,
the mortgagee ought to be credited for his expenses in obtaining produce
from the land and a moderate interest on the amount of such expenaeL
Principles laid down on which an account ahonld be taken from a mort-

gagee in poneuion.
THIS •was a. special appeal from the decision of H. J.
Parsons, Assistant Judge at Ra.tnagiri, a.mending the
decree of the Subordinate Judge of Guhagar.
Prabhakar brought this suit against Pandurang and two
others to redeem his share in certain immoveable property,
mortgaged by his father for Rs. 12\-11-10 in 1885 and
• 1838. Pandurang, the principal defendant, answered that
he had no objection to allow redemption on being paid the
a.mount that might be ·found due.
The Subordinate Judge, on taking account, found that the
net profits of the mortgaged property during the period of the
mortgage amounted to Rs. 404-13-8, including profits
arising from trees planted by the defendant {mortgagee)
after the date of the mortgage. He fouud that the interest
on the mortgage a.mounted to Rs. 406-14-0 due to the
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BOllBAY HfOH CO'CRT REPORTS . 89
defendant. The Subordinate Judge, therefore, deducting the 1875.
amount of profits from the amount of interest, passed a PRAB~'~
l:HINTA'M4X
decree in favour of the defendant for Rs. 121-11-10 as prin- DutsHIT
cipal and Rs. 92-0-4 as interest, total Rs. 213-12-2, on pay- PA'Ni~aum
ment of which the plaintiff was to redeem the property from V1i..1.' vu
. DIJtSRIT.
the defendant. In appeal (which wa.,; preferred by the de-
fendant), theAssistan~Jndge reduced the amount of the net
profits of the land during the period of the mortgage to
Rs. 70-4--1, and held the plaintiff entitled to redeem, on pay-
ment to the defendant of Rs. 548-5-9, of which Rs. 426-9-11
was the amount of interest. The Assistant Judge reduced
the amount of net profits, because he was of opinion that
the mortgagee ought not to be obliged to account for the pro-
fits of trees which he himself had planted, after entering in-
to possession of the mortgaged property. He observed:-
" Now, I do not at all see why the defendant should be
obliged to account for the profits of trees he himself planted.
A mortgagee is not bound to improve the land, and, if lrn
does so, his mortgagor gets the benefit of the improvementR
when he redeems the land. In this case, it is very doubtful,
indeed, whether the trees are planted in ·the share that was
mortgaged. What was mortgaged was an undefined share
of land, since there has been no division of the Jield, nor
indeed has there been any division of the trees, but at the
time of the mortgage, in 1885, the plaintiff's share was only
eeven trees (as is stated in Exhibit No. 10), and only these
seven trees were mortgaged at that time and no more in
1838 by the deed No. 9. There were more trees in ~he
whole field, as the defendant admits, but they did not belong
to the plaintiff, as he admits in the deed. Of course, I do •
not determine at all that in the trees planted subsequently
to the mortgage, the plaintiff has no share ; what I think
and hold is, that the plaintiff cannot call upon the defendant
to account for profits of trees that were not mortgaged
and were not even in existence at the time of the mortgage,
but were planted subsequently to it by the defendant, it
..., well be in his portion as a co-sharer in the land. The
profitB must be confined to the profits of what wa..~ mort.gaged
1111d WB8 in existence at the time of the mortgage." •
1 2-44-l
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90 "BOMBAY HIGH COURT REPORTS.
1875. In special appeal, it was principally contended that the

PRABHA'KAR account was taken on a wrong basis.
-CHINTA'MAN .
D1KsH1T The special appeal was argued before WEBTBOPP, C.J., and
~ '
'J>A'NDURANO KEMBALL, J.
VJ'NA'YAK
J>ntSHIT. .Rav Saheb V. N. Manillik for the appellant.
Bhairavnath Mangesh for the respondent.
The Court made the following interlocutory order, remand-
ing the ca.se to the lower court to prepare a fresh account
-<>n the principles la.id down.
W1:sTROPP, C.J. :-The Assistant Judge, in taking the
:accounts with regard to profits arising from trees, has fallen
·into the error that the plaintiff is entitled to credit for
profit arising from such trees only as were standing on the
land at the time of the mortgage. There seems to be no
good reason for holding that a mortgagee in possession
would not be liable to account for profits arising from trees
planted by himself on his mortgagor's land, as for profits
arising from rice, maize, or other crops sown originally by
the mort,gagee. There are two modes, in either of which the
mortgagee in personal possession would, in the absence of
i:.ny special contract to the· contrary, seem to be charge-
able. The first and simpler mode would be that the Court
should fix a fair occupation rent for the use and enjoyment
-of the land or buildings mortgaged. In the case of build-
ings in the possession of the mortgagee, persona.Uy occupied
by him for the purpose of residence or carrying on trade
or bnsi:o.ess, a fair occupation-rent would seem to be the only
satisfactory mode of charging him. In the case of land
personally occupied or cultivated by him, he might be charg-
ed either in that way, or with the actual net profits
realized by him in using the land. But in order to ascertain
what these profits should be, with which the mortgagor ought
to be credited in reduction of his mortgage debt and interest
thereon, we think that, not only ought the mortgagee to be
allowed credit for moneys expended in obtaining produce
from the land, such as the cost of seed or young trees, and the
fair expenses of cultivation, but also a moderate interest, say
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BOIi.BAY HIOH COURT REPORTS..
mper cent. per annum, on the capital thus employed ; for it 1875.
WOllld not be fair that the whole of the profitable results Pu.BHJ.'KAIL
, • , CHINTA'MAK
of the employment of that capital should be applied m re- D1KsHIT
duction of the mortgagor's debt. After deducting from PA'K;~RANa
the gross produce of the land the Government assessment,

or other Jawful charges pay!lble in respect thereof, the cost
of 11eed, &c., the proper expense of labour and cultivation
and a fair sum for interest on the capital employed in pro-
ca.ring such seed and carrying on such cultivation, the sur-
plus profits ought to be carried to the credit of the mort-
gagor and in reduction of his debt and interest. We are
not, however, to be understood as maintaining that a mort-
gagee has the right to charge a mortgagor with improve-
ment.s made without the assent of the latter, or to charge
him with interest on capital, where such capital was mis-
applied by the mortgagee, or not resulting in sufficient pro-
duce to cover the interest upon it. No doubt, in the
l'a8e of land (as well as in that of buildings) in the per-
sona} occupation of the mortgagee, it will often be the more
simple course for the Court to ascertain what would be 11
fair occupation-rent, and thus to get rid of the account of
the expense and profits of every crop which the mortgagee
may bring into existence on the land. Where a ~ortgagee-
enters into possession simply by taking the rent from the
tenants in actual occupation of the land or buildings, the sub-
ject of the mortgage, the account of rents and profits can
be easily taken aga.inst him. Circumstanced as this parti-
cular case is, we think that we most require the Assistant
Judge to ascertain and report to this Court what was the
net profit made by the defendant on trees planted by hirn-
lelf, on the A'gar land, during the time in which he has been
in possession of the plaintiff's undivided one-fourth of that
land. In ascertaining this, the Assistant Judge should make
allowance to the defendant for the cost of those trees and
t.be expense of the cnltivation thereof, and six per cent. per
IQum aa interest on such capital as was engaged by the
defendant for these purposes, and shonld credit one-fourth
of lhe balance of profit to the plaintiff in reduction of th.&
_aongage debt for principal and .interest due to the defend-
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92 110:MBAY HlOH COURT REPORTS.
1875. ant. It is necessary that this Court should point out that
Puull;''KAR the Assistant Judge has fallen into a fallacy in saying that
c0::;-;:-1' " it is very doubtful w bather the trees are planted in the share
PA'ND~RANo that was mortgaged.'' He had previously found that there
V1NA'ux had not been any partition of the land, and that the p1ain-
D1XSB1T.
tiff's share was, therefore, an undivided share; that being so,
the plaintiff could not be said to have a share in any one
part of the land more, than any other part of it, but he was
entitled to an undivided fourth part of it, and is accordingly
entitled against his co-parcener and mortgagee, the defend-
ant, who was in possession of the whole, to credit for a
fourth of the net profits of the whole. The Assistant Judge
is to be at liberty to take such fresh evidence as may seem
to him to be desirable and necessary for the purposes of
this inquiry. The Court reserves all further directions and
costs.
On the 15th January 1875, the following report was ma.de
by A. D. Pollen, who in the meantime succeeded H. J.
Parsons as Assistant Judge at Ratnagiri :-
" Having made the calculation in the manner indicated
by the High Court, I find that the profits amounted to
Rs. 229-5-5.
"Oh the application of the parties, evidence was taken
by commission on the spot. The commission, by consent,
was issued to the Mahalkari of Guhagar. His very care-
fully written report is recorded, No. 12, in this inquiry. At
first the parties did not produce any evidence before him,
and he, therefore, took the evidence of four independent
and skilled witnesses. Subsequently other witnesses were
examined at the instance of the parties themselves. · The
result of the inquiry is summed up in the two memoranda,
Exhibits 10 and 11.
"The number of trees planted was found to be 58. They
must have been all planted about the year 1838. The gross
profits a.rising from the trees between that period and 1870
bas been estimated at Rs. 1,817-8-0,of which sum, Rs. 25 7-8-0
were referred to miscellaneous income, such as leavei fire-
wood, &c., and Rs. 1,507 to the actual value of the fruit.
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BOKBAY HIGH COURT REPORTS. 93
The calculation was made after personal inspection, and 1875.
separate estimate of each individual tree and its correctness l'RABRA'ua
:bas been admitted before me by the pleaders on each side. 0;!:!' 1~N
''In estimating the expenses, the Commissioner has discri- PA'N;~No

minated between the expenses incurred in cultivating the VDINA'YAK
IDIUT,
trees up to the time when they commenced to bear, and the
expenses since they began to yield fruit. He considered
that interest was to be calculated on the former kind of
expenses only, and not on the latter. This appears to meto be
an error into which he was led by the Marathi translation
of the expression, 'expenses of cultivation,' which I take to
mean the ordinary expenses which must be incurred each
year to keep the trees in a proper condition.
" The trees were not capable of producing fruit for
t-en yea.rs after being planted. The preliminary exptm-
diture during that period may be taken as amounting to
Rs. 166-14-0.
" This sum includes the original price of the plants, of
planting and digging, of hedging and fencing, of a bullock
for watering, bullock's food, kit, and labour.
" I consider this estimate very correct and fair. The
parties of course argue that the items should ho slightly
varied one way or the other, to suit their own interests, but,
on the whole, they have no valid objection to offer. Interest
on the capital so expended from year to year amounts, at
six per cent., to Rs. 314-5-2, so that the capital expended on
the trees for the first ten yea.rs and the interest on the same
together amount to Rs. 481-3-2.
"After the trees began to bear, they required to be watered
and, as a matter of fact, were watered for fifteen years. The
expenses for this time, including bullocks, kit, food, and
servant, could not have been less than Rs. 204, the details
of which for the fifteen years are as follows :-Two bullocks
Bs-. 24, ; leather kit for ditto Rs. 45 ; food for ditto Rs. 75 ;
servant Rs. 60. The full details of each separate year's
· expenses are shown in Exhibit 11. The Commissioner did
DOt calculate any interest on this sum, but the order of the
Bigh Conrl requires this to be done. I find that the total
Digitized by Google
94- BOMBAY HIGH COURT REPORT~
1875. interest from year to year amounts to Rs. 214-15-0 (vidB

'.PRABaA'u.R Marathi yad annexed, marked Z).
CHlNTA1 MAN
DIXSHIT ''Principal and interest together come to Rs. 418-15-0,.
v.
PA'NDURANG which added to the principal and interest on the first ten
VIN'A1YAX
DIUHIT.
years' expenditure, being the total expenditure (with
interest) of the first twenty five years, to Rs. 900-2-2.
"No water has been supplied to the trees for the last ten
years or so, and there has, the~fore, been no expenditure of
capita.I on them in that period. I have only, therefore, to
deduct Rs. 900-2-2 from the gross profits to get the net
profit. The result is Rs. 917-5-10, of which the plaintiff's.
fourth share would be Rs. 229-5-!j.
" I, therefore, find on the point referred to me that the
net profit was Rs. 229-5-5."
On the receipt of the above report, the case came on for
final disposal before the same bench on the 24th March
1875, when the plaintiff was declared entitled to redeem and
recover possession of his share in the property on payment
by him to the defendant of Rs. 368-8-4 instead of the sum
of Rs. 548-5-9, first awarded by the lower court.
Decree ame11ded.
March 24. Regular Appeal No. 54 of 1873.

HIMMATSINO BECHAR- } Appellant (Original Defen•
SING ...... , , • .. .. • • . • • dant),
styling} Bes
GANPATSING,
himself the son of tlff]dent
O (O . . l p/g,in..
rt,<p~a
liIMMATSING,., ..... ,
Kindu Law-;Mainlenanu.
A suit for maintenance ou\ of ancestral estate by a Hindu son lies agaimlt
hie father where the properly in the hands of the latter is impartible.
Quare :-Whether a like suit lies where the BOD. might sue for partition..
THIS was an appeal from the decision of W. H. Newnham,
Judge of the District of Ahmedabad. _
•
Digitized by Google
The appeal was beard by WEsTROPP, C.J., and KEMBALT,, J. 1875.
StarUng (with him Lang and Dhirajlal Mathuradas, Go- ~=::::

vernment Pleader,) for the appellant. GANP:TSmo.
Branso11, (with him Shantaram Narayan) for the re-

spondent.
The facts and arguments, in so far as they ~re material
for the purposes of this report, appear from the following
extract of the Court's judgment delivered by
WESTROPP, C.J. :-The plaintiff Ganpatsing sued Him-

tnatsing, the Thakur of Sa.rod, to establish his right to receive
maintenance, alleging that he was the son of the defendant
by his wife Saheb Rani. He also claimed arrears of main-
tenance for six years. The estate of Himmatsing being
placed under management in conformity with Act XV. of
1871, the tna.na.ger was also ma.de a defendant under Section
25 of the Act.
Himmatsing pleaded, inter alia, that the plaintiff was not
his son, and even if he were, he could not by custom claim
any maintenance.
The District Judge of Ahmedabad, Mr. Newnham, after
a very careful consideration of the evidence produced before
him, came to the conclusion that the plaintiff was the lawful
son of the defendant Himmatsing by his wife Saheb Ra.ni,
and that he had a legal claim to be maintained by his father.
He accordingly decreed to that effect, and directed that the
manager, having regard to the magnitude of the estate and
its incumbrances, should: decide (subject to the control of
the Government) what amount the plaintiff was to receive
as arrears of maintenance and what he was annually to re-
ceive in future.
In the appeal before us, we have to consider tw0 objections.
It bas been contended on behalf of Himmataing, who alone
appears in this Court, that a son could not sue his father for
maintenance. In support of this contention, it is urged that
a Hindu son has an equa.l share with his father in ancestral
Digitized by Google
96 EOM"BAY IITOJI COURT REPORTS,
1875. property (a proposition which in this particular case, it will

Hnuu.TSING be presently seen, is inconsistent with an admission of
B~.RSING the defendant), and that the plaintiff should, therefore, be
.G.t.NPATBllfG. left to enforce his rights, if he can, by a partition suit. A
custom has also been attempted to be set up to prove that
the plaintiff should be maintained ou~ of the allowance
settled on his mother. It has, a.a we think, been very
properly conceded, on behalf of the defendant Himmatsing,
that the est.ate in question is impartible, being one to which
the law of primogeniture applies ; and no authority was
cited, either in the Court below or in this Court, to show
that, where_a son could not enforce a partition with his
father, he was prevented from suing the latter for mainte-
nance. We are of opinion that the alleged custom is not
proved, and that, on the defendantHimmatsing's own theory,
that the property is impartible, the disowned son would
have no remedy except a suit for maintenance. We say
nothing as to the right of a son to sue for maintenance
where he might sue for partition. (a)
Note.-His Lordship, on the 31st March following, reviewed the evidence.
and came to the conclusion that the District Judge waa right in holding
that the plaintiff' waa the lawful son of Himmataing by his wife SAheb
Rani. The decree of the lower court was, therefore, affirmed in so far aa it
declared the status of the plaintiff and hi.a right to be maintained by the de-
fendant, but Taried in so far aa it awarded arrears of maintenance for six
years. The High Court, in consideration of the incumbrances on Bim-
mataing'11 estate, g&Te the plaintiff' arrears only from the date of the llling
of the plaint at a rate to be fixed, under the control of the Governor of
Bombay in Council. by the manager, who was also to fix the amount of
future maintenance.
{a) See, on that point, Special Appeal No. 394 of 1872, decided by W&S-
TROPP, C.J., and Mxtvn.t, J., on 20th April 1874, the judgment recorded
by WJtSTRoPP, C.J., wherein it is laid down that amongst the male mem-
bers of an ordinary Hindu undivided family, a suit by one co-patcener
against the others for maintenance would be unauatainable. He would be
entitled to sue for a share, but not for maintenance, unleaa indeed he were
illegitimate, deformed, or idiotic, or suffering from some other disability
to inherit, in which case he would not be a parcener entitled to an equal
share with the other members of the family, but only a person entitled to
a maintenance.
. Digitized by Google
BOMBAY HIOR COURT REPORTS.
roR]GI~AL CIVIL JURISDICTION.]
Su.it No. 175 of 1878, App13al No. 257. 1876.

January 14..
DuA'L JAIRA'J ••• , ••...•••••• Plaintiff a.nd Respondent.

Kru.TA'v LADHA' and other
defendants (who did not
appeal.) ..................... Defendant and Appellant.
~ - A c t XIV. of 1859-Act IX. of 1871, Section& l and 22-
" luitlll«I "-'-" Com111au:ed "-Contribution-Partnera/1ip-Account.
Q.are:-Wbether the word "commeo.c ed'' io Section 22 of Act IX. of 1871

iJ equiT..Jent to the Word" instituted" in Section 1, Md Whether Section 1
dee. not exclude from the operation of the Act all suit, instituted before
lit April 1873, even ae to defeudanta added after that date.
Supposing the provisions of Section 22 of Act IX. of 1871 to apply to de-

fa.hnta added by amendment subsequently to lat April 1873, in a suit iu•
!litated before that date, such added defendant.I 11,;U, under the tenn1 of that
ledioa, and if that section doea not apply, then under a general priuciple of
law, ~ allowed to reckon the period of limitation on which they rely from
~ date at which they were added, bnt the periods of limitation provided
bf ht IX. of 1871 do not neces.earily apply to defendants so added.
The plaintiff' and three of the defendants, being four members of a
putDer&hip, conaisting of seven persons, borrowed, in January and February
11185, on acoount of the partnership, from the Commercial Finance and Stock
Xxchange C-orporation, two soma of R11. 11 21,614. and Rs. 1,08,000, for
nic:h they gave their joint and several promissory notl's, and shortly after-
warda two of the partners retired, leaving the plaintiff and the four tlefendanta
aloae constituting the firm. On 27th September 1865 the plaintiff and first
clefeadant were sentenced to transportation for life, and on 15th April 1867
GIie of the other defendants became insolvent. On 25th April 1867 the
Liqaidatora of the Commorcial Finance and Stock Exchange Corporation
GlllaiDed a decree against the plaintiff' and the three defendants who had
jc.-1 in Lhe malting of the promil!80ry notes for the amount due on theit
jaint and 11everal promissory notes and costs. In March 1868 the immoTeable
MCI moveable property of the plaintiff' and the moveable property of the first
~ t were sold io execution, and the whole of the proceeds of the
-,latil'• immoveable property, together with the balance of the procllflds of
dla -..ble properties of the. plaintiff and first defendant, after satisfying
ai..om two prior decrees against them, were applied in part satiefaotion ot
Ille dNree of 2Mb April 1867, and the moneys so recovered wore diatributed
to "8 llhareholdera by the liquidators, who, howe,·er, retained in theit
•Mfr--m
Digitized by Google
98 BOllBA Y RtGH COURT REPORT&.
1875. hands auch portic.n u would have been payable in respect of the aharea
__D_A_V_A-.L- held by the judgment-debters, and thaa the whole decree .wae satiatled,
J.uIU.'J ·leaving a baltlllce of Ra. 25,212. The distribution of aa1ete was made on
KH!;.A'v 3rd April 1869, and the final dividend to shareholder& other than the jndg-
LADJLI. •. ment debtor• paid on 3rd August 1869. Tlie two defendants other than the
first and the insolvent took the benefit of Act XXVIII. of 1865, and
obtained their discharge in April and December 18&9. The ph,intiff,
tbert,fore, sued the first defendant alone on 18th Mo.rch 1873, as contri-
butory for the satiefaction of the joint decree, but subsequently, by
amendment made on the 6th February 1874, added the other d~fendmtll,
and I r"yed for a decree that he waa entitled to receive and appropriate
the balance of Re. 25,212, and that the firat defendant should pay to the
plaintiff the balance of the moneya paid by him in Uce88 of his ahare ill
satisfying the decree of 25th April 1867, with interest, after deducting
three-fourths of the anm of Ra. 25,212, or that, if neceaary, the part.ner-
ahip accounts might be taken, and the plaintiff be paid such snma as
might be found to be due to him :
Held-lat.-Tbat the period of limitation aa t.o all the defendant.a wu
that provided by Act XIV. of 1859, whether the suit. waa to be treated
aa one for a partnenhip aocount, or one for contribution of an as-
certained sum.
2tld.-That as to the first defendant the period of limitation wu to be
reckoned back from 18th March 1873.
3rd,-That aa to the added defendants the period of limitation wu to be
reokoned back from 6th February 1874.
4tA.-That t~e giving of the promieaory notes was not a partnenhip trans-
aotioo ao as to debar the plaintiff from a auit for contribution without
asking for a general account of the partnership dealings.
&A.-Tbat the first defendant, having by bis written statement, pleaded
that if a general partnership account were taken, he would be found not
to be indebted to the plaintiff in respect of the contribution claimed,
could »ot also plead the Limitation Act aa a bar to the taking of such
account.
6th.-Tbat the plaintiff's cause of action aruae in April 1868, when his
property wa11 aold and applied in satisfaction of the joint decree of
25th April 1867, and not on the date of the decree iteeV.
THIS was a.n appeal from the decree of Sargent, J. The

plaintiff originally sued the respondent alone to recover
the sum of Rs. 76,536-7-2, with interest from the 1st March
1868, as money payable by the defendant to the plaintiff for
money paid by the plaintiff for the defendant at his request,
and for interest on money due from the defendant to the
plaintiff, and for money found to be due from the defendant
Digitized by Google
B0¥BAY BIOB COURT BJ:PORTB, 99
to the plaintiff on an account st&ted between them. The __l_ff1_5_._

plaint was filod on the 18th March 18 7;J, and the particulars DAYA'L
JAlltA J
of claim annexed to it showed that the amount claimed, 11.
Rs. 76,536-7-2, was ma.de up of the item of Rs. 21,212, unpaid KHATA'V
Lil>HA',
contribution payable by the defendant towards the sum of
Rs. 2,48,558-8-5 (the amount of a. decree in Suit No. 985 of
1866, with interest and costs), and the item of Rs. 55,324-7-2,
being the moiety of the excess paid by the plaintiff on account
of such decree. The plaintiff, therefore, did not ask for an
account, but treating it as unnecessary, sought only
for payment by the defendant of an ascortained sum of
Rs. 76,536-7-2, as being still due from him as contributory
for the satisfaction of a joint decree. The defendant filed
a written statement in August 1873, insisting on the Limita-
tion Act as a bar to the suit, alleging that he had already
paid all that he was liable to pay, that the accounts of the
partnership were still unadjusted, and the other partners ..
or their representatives were necessary parties to the suit,
and that an account should be taken, under the direction
of the Court, of the partnership dealings and the amounts
paid by the plaintiff and defendant respecfr;' ely in satisfac-
tion of the decree in Suit No. 985 of 1866. The plaint was
theteupon amended on the 6th Febrna.ry 1874, under an
order of the previous day, by ma.king Henry Gamble, (As-
signee in Insolvency of the estate of Dinsha. Ardesir D6.var),
Bhagwand{is Parshotamdas, and Tulsid!s Devji, parties
defendant. 'l'he amended plaint was much extended in the
way of statement, many of such statements being to the
Mme effect as those in the written statement, filed in a:iswer
to the original plaint, and prayed that it might be decreed
that in the events which bad happened,. the plaintiff was
emitled to receive one-fourth of a sum of Rs. 25,212 depo-
sited in the hands of the .Accountant General, and forming
part of the dividends on certain shares belonging to the
partnership, and that the remaining three-fourths might also
be received and appropriated by the plaintiff in th~ mattn~r
in the plaint mentioned, that the Accountant General might
be ordered to pay the same to the plaintiff,. and that the
Dig1tizedbyGoogle -
100 BOKBA Y HIGH COURT REPORTS.
_ _1_67_6._ defendant, Khatav Ladha, might be decreed to pe.y to the

DAYA'l, plaintiff the balance of the sum of Rs. 76,536-7-2 and in-
JATRA'J
11• terest, after deducting three-fourths of the sum of Rs. 25,212,
f.::~'.~ or that, if necessary, the accounts of the dealings of the
partnership might be taken, and that such sums as , might
be found due to the plaintiff might be ordered to be paid
to him by the defendant Khatav Ladha..
At the hearing of the suit, none of the defendants added
by amendment appearing, either by counsel or in person, nine
issues were framed, of which the first two were :
"Whether the plaintiff's claim is barred by the Limitation
Act," and "whether the plaintiff is entitled to an account,
as between himself and the first defendant, Khatav Ladha,
of the partnership transactions referred to in the plaint,
supposing the suit to be barred as against the other defend-
ants, viz., Henry Gamble (the Assignee in Insolvency of
one Dinshi Ardesir Davar), Bhagwandas Parshotamd,s
and Tulsiclis Devji."
By his decree of the same day the learned Judge who
heard the suit ordered a reference to the Commissioner to
take an accoa.nt of the dealings and transactfons of the part-
nership in the pleadings mentioned, and reserved further
directions and costs until after the report of the Commis-
sioner should have been made. Or, in other words, he
found the first issue in favour of the plaintiff and against
all the defendants, and reserved his findings on the other
issues till after the accounts should be taken.
The defendant, Khatav Ladha, appealed against the decree
on, in substance, the following grounds : That the claim of
the plaintiff to the accounts decreed ought to have been held
to be barred by the Limitation Act ; and that, as at any
rate, such claim as against the other defendants ought to
have been held to be barred, and they were necessary
parties to an account as against the defendant Khatav Lad.hi,
the plaintiff was not entitled to any account at all of the
partnership dealings. The question then for the consider-
ation of the Appellate Court was as to the application to
the mit of the Limitation Aot.
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BO:IIBAY HIGH COURT REPORTS. 101
The appeal was argued before BAYLEY and GREEN, JJ. 1875.
Lang and bwerarify for the appellant. DAYA'L

JAIH.A'.J
Scoble, A. G., and Latham for the respondent. 11.
KHATA'V
LA.DILi.'
The judgment of the Court was delivered by
GREEN, J ., who, after reviewing the facts stated above, pro-
ceeded as follows :-As no evidence was given at the hearing
of the suit the facts which we assume as established must be
collected from the statements of the plaint and written state-
ment, so far as uncontradicted by the other side (and on
this footing the learned counsel for the appellant stated
in the argument of the appeal that they were willing the
matter should be argued), and from certain other admissions,
stated to have been ma.de at the hearing below, by the
respective counsel who appeared for the parties, and which
were repeated at the hearing before us, and we think it
desirable to specify those facts which we so assume to be
established. In the year 1864 a partnership was formed for
the purpose of speculating in shares (whether in shares
generally, or only in the shares of the Commercial Fiwmce
and Stock Exchange Corporation, is a point in difference be-
tween the parties), such partnership consisting of the plaintiff,
the defendants Khatav Ladha., Tulsidas Devji, and .Bhag-
1tandas Parshotamdas, Dinsha Ardesir Davar, one Robert
T~ylor, and one Pragji Parshotamda.s. Shortly after the
formation of the partnership, about the 20th February 1865,
Pragji Parshotamdas retired from the partnership, and
Robert Taylor made over his share to Dinsha Ardesir Davar.
In January and February 1865, the plaintiff, the defendants
Khatav LadM and Tulsid:is Devji, and Dinsh:t .Ardesir
Davar (being then Directors of the Commercial Finance and
Stock Exchange Corporation) borrowed from the Corpora-
tion for and on account of the partnership two sums of
Rs. 1,21,61+-8-0 and Rs. 1,08,000, and to secnre the same
gave their joint and several promissory notes, dated respoo-
tiTely 16th January 1865 and 2nd February 1865, and de-
posited 5,107 shares of the Corporation's own shares, the
property of the partnership. On 27th September 1865 the
Dig1tizedbyGoogle ~
102 BO•IIAY HIGH COURT RBPOB'l'8.
1876.
-DAYA
- -L - plaintiff and the defendant Khat.ah Ladha were tried and
1
convicted at a Criminal Sessions of this Court, and sentenced
J.uBA'J
v. to transpc,rtation for life and to forfeiture of the rents and
KaATA'V
L.U>llA'. profits of their immoveable and moveable properties during
the period of their transportation under the provisions of the
62nd Section of the Penal Code. In December 1865 the
Commercial Finance and Stock Exchange Corporation went
into liquidation, and the liquidators afterwards instituted a,
suit, No. 985 of 1866, against the plaintiff, the defendants
Khaliav Lad.ha and Tulsidas Devji and Dinsha Ardesir
Davar, to recover the loans of January and February 1865,
and in that suit a decree was ma.de against the defendants
on 25th April 1867 for the sum of Rs. 2,29,614-8-0, with
Rs. 706-8-0 costs and interest on the decree. On 15th April
1867 Dinsha Ardesir Dttvar filed his petition in the Insolvent
Court, and his estate became vested in the defendant Henry
Gamble. The Government having, in the course of the year
1868, waived their rights under the sentence of forfeiture in
favour of the creditors of the persons so sentenced, attach-
ments issued against the immoveable and moveable property
of the plaintiff, and against the moveable property of the
defendant Khatnv LadM, respectively, in execution of the
decree in Suit No. 985 of 1866, and also in execution of two
other decrees, one in Suit No. 965 of 1866 by the Liquida-
tors of the Kutch Financial Association against the plaintiff
for about Rs. 20,000, and the other in Suit No. 984 of 186&
by the same plaintiffs against the defendant Khatav Lad ha.
for a.bout Rs. 25,448. In Ma.rch 1868 the immoveable and
moveable property of the plaintiff, and the moveable property
of the defendant Khatiiv Ladhti, were sold by the Sheriff in
execution, and realised the amounts following, the immove-
able property of the plaintiff Rs. 1,28,750, his moveable
property Rs. 10,14+-4-5, and the moveable property of the
defendant Khatb LadM Rs. 13,109-4-9. The application of
the money so realised is by the pla.int stated to have been aa
follows, and the statement, though not admitted., is not denied
te be troe by the defendant Khat.a v LadM.. The respective
proceeds of the moveable properties, viz., Ra. 10,1'44-4-5 and
Digitized by Google
OOMBAY HIGH COURT REPORTS. 103
Rs. 13,109-4-9, were applied to the extent of Re. 14,725 in 1875.

----
satisfaction of the claims of the Kutch Financial .Association DAYA L 0
JAJJU.'J
under their decrees in Suits Nos. 965 and 984 of 1866, respec- 1'.
tively,and the balances of those sums of Rs.10,144-4-5 and Rs. KHATA'v
LADILl'.
13,109-4-9 (viz., Rs. 2,781-14-5 belonging to the plaintiff and
Rs. 5,746-10-0 belonging to the defendant Khe.tav Ladha,
aggregating Rs. 8,528-8-5 ), were, togethei-with the sum of Rs·
1,28,750, the proceeds of the immoveable property of the
plaintiff, applied in part satisfaction of the claim of the Com-
mercial Finance and Stock Exchange Corporation under their
decree in Suit No. 985 of 1866 against the plaintiff, the
defendants Khatav Ladha and Tulsidas Devji and Dinsha
Ardesir Davar. The order for payment by the Sheriff to the
solicitors of.the plaintiffs in the suits in which the aforesaid
attachments were issued was ma.de on the 28th April 1868.
The Liquidators of the Commercial Finance and Stock Exchange
Corporation having so recovered the sums of Rs. 1,28,750
and Rs. 8,528-8-5, proceeded to distribute the same to the
shareholders, but retaining in their hands such portion as
would have been payable in respect of the shares held by the
judgment-debtors, namely, the defendants in Suit No. 985 of
1866, and by such retention the whole of the decree in the
said suit became satisfied, leaving as a balance (we assume,
though it is not expressly so stated,) the sum of Rs. 25,212,
st,a,t.ed to be now in deposit with the Accountant General,
and to which a portion of the prayer of the amended plaint
is directed. This distribution of assets was, it is admitted,
made on the 3rd April 1869, the final dividend to share-
solders other than the judgment-debtors having been paid
on the 3rd A.ugast 1869, and in such manner the decree in
Suit No. 985 of 1866 was fully satisfied. As for Tulsidas
De,ji and Bhagwandtis Parshotamdas, it is stated by the
amended plaint that they had taken the benefit of Act
XXVIIl. of 1865, and obtained their discharges respec-
tively on the 5th April 1869 and the 11th December 1869,
and that the plaintiff is advised that tn.ey having included the
innsactions, the subject-matter of the present suit, in their
~unts filed under the said Act, are not liable in respeqt
Digitized by Google
10+ BOK BAY HIGH COURT REPOBTS.
1875. thereof. He has, however, in compliance, we presume, with the

_D_A_v_A-,L-· contention of the defendant Khatav LadM, in his written
JAIRA'J
v. statement, made Bhagw:l.ndas Parshotamdas and T u1sidLas
XHATA'v DeVJ·i parties defendant. Under the aforesaid circum-
1..u>HA'.
stances the plaintiff contends that, as nothing can be recovered
from the estate of Dinsha Ardesir Davar, he is entitled to
recover from the •defendant Khatav Ladhi the sum of Rs.
76,536-7-2, made up as mentioned in the particulars of de-
mand referred to.
The first question is whether Act XIV. of 1859 or Act IX.
of 1871 applies to the suit. So far as the first defendant
Khath Ladha is concerned, there is no doubt that the first-
named Act applies, and not Act IX. of 1871, as the suit was
instituted against him on 18th March 1873, and Section 1 of
Act IX. of 1871 provides that Act is not to extend to any
suit instituted before 1st April 1873, and it was not disputed
that under Act XIV. of 1859 the period of limitation would
have been six years·. But it was insisted that as the defend-
ants, other than the defendant Khatav La.dha., became parties
to the suit after 1st April 1873, namely, on 6th February
1874, and that as by virtue of Section 22 of Act IX of 1871
the suit, so fa.r as they were concerned, was instituted after
the 1st April 1873, then that the latter Act applied to them
and being a bar to the suit as against them according to the
periods of limitation applicable to the case under the last
mentioned Act, and they being necessary parties to the suit
against the defendant Khat:tv Ladha, the suit could not be
maintained against such last mentioned defendant. The
section referred to, so far as it is material, is as follows :
" When after the institution of a suit a new plaintiff or defend-
ant is substituted or added, the suit shall, as regards him,
be deemed to have commenced when he was so made a par"ty.''
This section, it is to be observed, does not say the suit as
against an added defendant shall, as regards him, be deemed
to have been instituted, but commenced at the time of his
so being made a party. Without, however, relying too
strongly on this distinction, it seems to us that the reasonable
construction of Section 22 is that a defendant added by
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BOMBAY HJOR COURT REPORTS. 105
u:iendment is to be allowed to count the period of limitation 1876.

----
en which he relies as a bar to the suit (whatever that period DAY.l'L
of limitation may be) as running not merely down to the time J.lIR~'.J 11.
when the suit to which he is 'added as a defendant was KJUT.l'v
LI.DBA'.
originally instituted, but also down to the time when he is
added as a. defendant. This, as indeed appears from the
CISe of Kaj Ku,horee Dossee v. Buddun Ohimder Shaha (a),
cited by one of the appellant's counsel, had been held to be
the law with reference to Act XIV. of 1859, independently
of Act IX. of 1871, and the object of enacting t.he section in
the latter Act was probably to leave no doubt on the point.
The section, however, supposing it to ~pply at all li,e, sup-
posing Section 1 of Act IX. of 1871 not to exclude the opera-
tion of the Act upon all suits instituted before the 1st April
1873, even as to defendants added after that date), does not
eay that when a defendant bas been added the periods of limi-
tation provided by Act IX. of 1871 are to apply; it says no-
thing expressly as to what period of limitation is to apply. The
oonstruction of Section 22 of the later Ac.t contended for by
the appellant's counsel might, as it appears to us, if adopted,
lead to consequences which cannot be supposed to have been
intented by the legislature, that inasmuch as by the later
A.et the periods of limitation are in many cases considerably
shorter than those provided by the earlier one, different
periods of limitation would be applicable to claims against
sevel'al persons otherwise jointly liable in respect of the
same subject-matter. We were informed, at the bee.ring of
this appeal, that the learned Judge who heard the suit consi•
dered that the periods of limitation provided by Act IX. of
1871, and not those provided by Act XIV. of 1859 a.pplied in
the case of the added defendants. He considered, however, .
that 11nder the latter Act also the period of limitation to a suit
of the natore of t,he present onewas,as before, six years. We
~ of opinion that as to all the defendants the period of limi.-
~on in a suit of this nature, whether it is to be t.reated 9:a
a lllit for a partnership account, or as a suit for contribtt-
tion of an ucert&ined snm tQwards a joint decree, is that
(4) 6 Cale. W. R. 298 Civ. RuL
• 2"--fl.
Digitized by Google
106 BOMBAY BIOB COURT IUCPORT8.
111_5._ provided by Act XIV. of 1859, viz., six years; that ae

__ to the
Dt.Y.t.'L defendant Khatav Ladha such period is to be counted back
JJ.D.t.'J
from the 18th March 1873, but that as to the added defend-
"·
KJl.t.1'.t.V
ants having regard to Section 22 of Act IX. of 1871, if appli-
Lt.»11.t.'.
cable, and if not, on a principle of law independent of tha 1.
section, such period ie to be counted be.ck from 6th February
1s1,.
The next point for consideration then is, when did the
cause of action arise? With reference to this the contention
of the appellant was that the suit could be treated only as
one for a partnership account, and that the cause of such
enit arose on the dissolution, ipao facto, of the partnership
upon the conviction and sentence of the plaintiff and the
defendant Kha.tav Ladha, on 27th September 1865. We
do not, for reasons which will hereafter appear, consider
it necessary to decide when the cause of action ought to be
deemed to have arisen, had the present been a enit exclu-
sively or primarily for the taking of the partnership account,
nor whether the aissolution of the partnership first took place
on the occasion of the conviction and sentence of the plaintiff
and the defendant Khatav La.dM. in September 1865, or on
the occasion of Dinsha Ardesir Dhar becoming insolvent
in April 1867. It was contended. that a suit for contribu-
tion between partners is not maintainable except in the form.
of a suit for a general partnership account, and the case of
SadleT v. Nizon (b) was relied on. Thie case, as appears
from the observations in Lindley on Partnership, wpere it is
mentioned, and from the other cases there cited, has not
been considered wholly satisfactory. The general principle,
no doubt, is well established where the transaction, in respect
of which th~ right to contribute is sought to be enforced,
was a partnership transaction. But was that the case here ?
At the time the loans were obtained from the Commercial
Finance and Stock Exchange Corporation, and at the time
the promissory notes were given as security, the partnership
consisted of seven persons. The loans, however, were made to,
(II) 5 B. and Ad. 938.
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BOMBAY 81GB COU&T Hl'OKTII. 107
and the notes given by, four only of those persons, viz., the 1876.
plaintiff, Dinsha. Ardesir Davar, and the defendante Khatav D4Y4'L
----
J4JJ&4'J
Ladha and TulsidS.s Devji. Now Sedgwick v. Daniell (c)
is a distinot authority that where three persons, being share- Kuu'v "·
L.u>.84'.
holders in a Joint Stock Mining Company (which being un-
incorporated was, and was treated as, an ordinary partner-
ship), had gwen a joint and several promissory note to secure
moneys advanced to the Company by a third party, and one
of the three had paid more than his share, he was entitled
to sue ~or contribution against another of them, not-
withstanding that the money was advanced for the pur-
poses of the partnership, and notwithstanding the relation-
ship of partners between th~ plaintiff and defendant. It was
considered by the Court that the promissory note being
signed by some only of the shareholders of the Company,
must be treated as a transaction separate and apart from
the partnership. Bramwell, B., says (d) : "But if two or three
members of a partnership, not being the whole, think fit to
enter into a separate obligation to a third party, upon the
security of which he advances money to the partnership,
each being liable to_pay the whole and bound to indemnify
the others against the payment of more than their shares,
that cannot be considered as a partnership transaction." We
are of opinion that in the present case the loans to the four
makers of the promissory notes, though for and on behalf
of the partnership, and the giving of the promissory notes,
cannot be considered as a partnership transaction in the
sense that it cannot be made the subject of a suit for contri-
bution without also asking for a general account. That a
suit for recovery of a share of a partnership asset received
by one partner after the dissolution of the partnership may
.he maintainable, even where the right to a genera.I partner-
ship account may have been barred by the Statute of Limi-
tation, is supported. by the opinions of at least three of the
foar learned Lords who took pa.rt in the decision of K,wz v.
O,S (e). '.rhere a partnership between Gye and Thistlethwait&
(e) 2 H. aud N. 319. · (d) Id. lb., p. 328.
(e) L. R. 6 Eng. aud Ir., App. 656.
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108 BOKBA Y HIGH COURT Rl:POBTS.
__1_87_5_
._ had been dissolved by the death of the latter in Decem-
DAYA'{. ber l854. Some years afterwards (the case states in 1862)
JAIU1J
v. a sum of £2,500 was received (under a judgment recovered
Jr:llATA1V
~DB.t,\ against one Rughes) by the anrviving partner Gye, which
would have been part of the partnership assets. A bill
was filed in October 1864 by the plaintiff, in the character of
executor and legatee of Thistlethwaite, praying for accoants
of the partnership from 14lh March 1851 to the time of
ta.king the accounts, that the partnership between Gye and
Thistlewaite might be directed to be wound up, and the
debts of the partnership paid, that an account might be
taken of what was due to the plaintiff in respect of his
share of a sum of tl2,000 (the capital brought in by This-
tlethwaitein 1853), including the whole of the judgment-debt
due from Hughes and interest, and also of the profits of the
partnership between Gye and Thistlethwaite. This bill
was dismissed on appeal to the then Lord Chancellor, Lord
Chelmsford, on the ground that it was barred by the Statute
of Limitations, and his decree was affirmed by the House of
Lords, the theµ Lord Chancellor, Lord Hatherley, who had
heard the case originally as Vice Chancellor, dissenting at
any rate from the reasons given by Lord Westbury for affirm-
ing the decree. Of the four learned Lords who addre.38ed
the house, three, viz., Lords Westbury, Colonsay, and Chelms-
iord, were of opinion that the suit was barred. It is to be
observed in the first place that the judgment is based on
the words of 19 and 20 Vic., Ch. 97 Section 9, which provides
that no action of account, the cause of which arose more than
six years before suit, shall be considered as liable to be sued
upon after such aix years " by reason only of some other matter
or claim comprised in the same account having arisen within
six years next before the commencement of such action or
suit." Lord Westbury appears to have based his decision
on this, that the money received from Hughes having been
received after the lapse of six years from the dissolution of
the partnership by the death of Thistlethwa.ite in 1854, did
not revive the right to an account once taken away by the
statute by the lapse of such period of six years. H~ opi-
... Digitized by Google

nion rather seems to have been that had this sum been 1875.
received within six years from the dissolution (and this DAYA'L
- - --
J.UU'J
mutatis mutandis is the case with regard to the present suit,
as the over-payments by the plaintiffs in J868 were of coune K11ATA
"· 1' 1
l.&DKA'.
within six years from the dissolution of the partnership,
whether taking place in 1865 or 1867), the right to an
account would have been · kept alive. Lords Colonsay and
Chelmsford, on the other hand, deal with the case on the
footing that the sum recovered from Hughes was received
within six years from the death of Thistlethwaite, and hold
ihat the right to an account was nevertheless barred. The
Lord Chancellor in dissenting from the views expressed
by Lord Westbury, lays down some principles which we con-
sider are very applicable with regard to the present case.
He says (j}: -" I apprehend that the right view to take of the
matter would be this : If the partner who has insisted, and
who has a right to insist, upon the benefit of the Statute of
Limitations, says to the executor of the deceased partner,
I am ready to pay you your moiety (that is, if the share should
bes moiety,) of those assets which I have received, but I
decline to enter into any account that is barred. I concede
(as is here done by Mr. Gye) that your testator was once a
partner with me. I concede that he was, as my partner,
entitled to a share. I concede that I have only received this
money by right of the partnership, and that except for the
partnership, I could not have received it; conceding that,
I am willing to pay you that which is your own, but further
than that I will not go; and although I have received this
aum and am ready to hand it over to you, holding,as I must,
aa trustee for you in respect of your interest in the partner-
abip, I will not go back to th~ partnership &e(?Ounts, which
I aay are all settled, and as to which there are no accounts
between us. I think Mr. Gye would have a right to BBY so,
bat he does not. He says, on the contrary, you are a debtor
to me. I believe he says that, and he has a right t.o say so,
1 apprehend that it is he who requires the account in order
• .retain the assets, for be must admit an account to be
(!) Id. lb. , p. 681.
•
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110 80.llBAY 8108 COUBT UPOB:T8.
1876. in order to enable him to retain the assets. That

- - - isnecessary
-DAYA'L my view of the case. I confess I have not heard anything
J.-uu.'1
that justifies me in abandoning that view beyond a proposi-
"·
ICBATA'V
L.\oBA.'. tion which is to me so novel that I cannot accede to it, namely,,
that there is no fiduciary relation at all between a surviving
partner and the executors of a deceased partner. I callllot
accede to that, and not acceding to it, it appears to me
that Mr. Gye had only one of two courses open to him, viz.,,
that of handing over the money he bad· received from Mr.
Hughes, or. the deceased partners share of it,to the executors
of the deceased partner, assuming that all a.ecounts had been
settled up to that period, or to say ' I shall demand an ac-
count, and show by an account that the whole of that money
is mine.' For anything that appears that might have been
the actual result.'' Lord Colonsay says (g) :-" The kind of
suit we are now dealing with is a suit for an account of the
whole partnership concerns. I do not say that if a sum is
unexpectedly recovered after the lapse of six years the exe-
cutor of the deceased partner, though he has lost the right
to sue for an account of the partnership concerns, may uot
in another kind of suit demand a share of the particular
sum so recovered. But I do not think that a suit such as
the present suit, demanding an aooount of the whole partner-
ship concerns, can be brought against tho surviving partner
after the lapse of more than six years from the period at which
he first became liable to be convened in such a suit.»
And Lord Chelmsford says (h) ;-" There may be a difficulty
in determining what is the right of an executor of a deceased
partner where he has allowed the Statvte of Limitations to
run against his claim to an account, and a debt has been
recovered by the surviving partner after the six years have
elapsed. But this is a difficulty occasioned by bis own
}aches, and I see no reason, if he thinks that his interest in
the sum received has not been absorbed by its application
to satisfy debts due from the partnership, why he should not
have a right to sue for his share in this sum (a very different
thing from . a suit for an account of all partnership tra.ns-
(g) Id. lb., p. 678. (h) Id. lb., p. 687.
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BOKBA Y HIGH COURT REPORTS. 111
actions), the surviving partner being a.t liberty to defend 1876.

himself by alleging and proving that the whole of the sum re-
- DAYA'L
---
J.uu.'.1
ceived had been applied, or was applicable, to the payment
of partnership liabilities."
"·
KIUTA·v
LADBA'.
The present case ma.y be considered as somewhat converse
to that suggested by the three learned Lords whose judg-
ments we have cited, viz., the plaintiff, instead of claiming a
share of partnership assets received by one partner after
a dissolution, the right to an account generally being sup-
posed to be barred, claims to be repaid the excess of the
moneys paid by him, under a joint decree against him and
three other of the partners in respect of moneys borrowed
on account of the partnership, over the amount which the
plaintiff was bound to pay as between him and the three
co-partners who joined in the notes. His snit, as originally
framed, was confined to this object. To a claim so framed
the period of six years (the period applicable under Act
XIV. of 1859) began to run in April 1868, when the pro-
perties of the plaintiff and defendant Khatav Ladha. were
sold and applied in satisfaction of the joint decree of the
25th April 1867 in Snit No. 985 of 1866, and not from the
date of the decree itself : Srimati Bimala Debi v. Srimati
Tarasundari hebi (i), and so had not expired when the suit
was commenced against any of the defendants.
It was the defendant Khatav Ladha who first insisted on
the general account being taken. Though the plaintiff' in
his amended plaint does ask for an account, his primary
claim is for contribution without an account, and he only
asks for a.n account if it be found necessary. It is the
defendant Khatav LadM who insists on the whole partner-
ship account being gone into, and then when granted, relies
on the Limitation Act as a bar to such account. He had, it
appears to us, two courses, one or other of which he might
have pursued, either to pay his ~hare, whatever it might be,
of the excess recovered from the plaintiff on foot of the joint
jadgment, or to say " I allow the plaintiff has paid more
(i) 6 Beng L. R. AppL 101.
Digitized by Google
112 IIOllBAT HIGH C()URT REPORTS.
his share on account of the judgment alone; but if the

- - - than
1876.
-DAYA'L whole account were taken I should not be found liable to
J.AIRA'J
1'. pay more in respect of that joint judgment than I have
KB.a.TAY already done." He cannot, we think, be allowed to say cc I
L.a.uu.a.'.
won't pay any further money by way of contribution to an
undoubted payment by the·plaintiff on account of the joint
decree, because if an account were to be ta.ken it would
appmr that I ought not to be called on to make a~y further
contribution, but I object to such account, as it is barred by
the Limitation Act." The alternative for him, we think, is
"either pay your contribution without any account, or, if
• 30n say an account ought to be take.n in your interest,
wnive your objection on the ground of the Limitation Act,
and havetheaccounttaken." On thegrounds, therefore, that
the claim as primarily preferred by the plaintiff appears to
be justified by t.he case of Sed!Jwick v. Daniell, and by the
opinions, as cited above, expressed by three of the learned
Lords who delivered judgment in Knoz v. Gye, and as such
claim is not barred as against any of the defendants, a.nd
that it is the defendant Khatav Ladha. who insists on the
partnership account being taken, and the plaintiff being
willing that such partnership account should be taken, and
without deciding how the case would have stood had the
suit been solely or primarily for a general partnership ac-
count, we have come to the conclusion that the appeal must
be dismissed, and with costs.
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IIO:llli T HIGH COURT RIPORTS •. 113
[ORIGINAL CIVIL JURISDICTION.] 1875.

March 30.
Suit No. 580 of 1872.
SuoANCHAND SHIVDA's •••••••.••••••••••..•...•.. Plaintiff.
M ULCHAND J OHA'RIMAL •••••••••••••••••••••• •• Defendant.
Jari,au:tion-Ldura Paknt, 1865, <Jlauu Xll.-CtwM of .A.ctioll-H11ndi-

l'OMiduaticm-Uaage of Shroffa. •
Tlle High Courts are not courts of ordinary original civil jurildiotion
onr the whole of the territories of the presidencies to which they belong,
and there is no presumption in favour of jurisdietion beyond what is fowid
espressly oonferred by the Charters of coW1titution.
The decisions of the English Courts on Sections 18 tu1d 19 of the

Common Law Procedure Act (15 and 16 Vic., Ch. 76,) relating rather to
~ of proce4111re than of jurisdiction, are not so much in point with
regard to the interpretation of Clause XIL of the Letters Patent, 1865, u
the decisions on Section 128 of the English County Courts Act (9 and 10
Vic., Ch. 95,i which are directed to the marking oat and limiting of the
jarilldiction of a court.
Some remarb of Holloway, J., in DeSouia v. <Jolu (3 Mad. H. C. Rep.

413) u to the propositiou involved in Luchuchan4 v. Zarawar Mvll
(8 Moore I. A. 291) dissented from. '
Where a hu11di had been drawn out of Bombay upon a person in Bombay,
in<lorsed and delivered, out of Bombay, to one who, out of Bombay, indorsed
the same and sent it to a person who, in Bombay, received it, got it accepted
and presented it for payment to the drawee. by whom, in Bombay, it wu
dishono11red :
Held that the dishonour or tbe A"ndi by the drawee in Bombay was a
material part of the caaae of action by ·the Bombay holder against the first
indoraer, and, consequently, that such material part of the canae of action
ha,dng arisen in Bombay, and the holder having obtained leave to bring his
auit under Clause XIL of the Letters Patent, 1865, the Court had ju1iadic-
tion to entertain the suit.
The plaintiff', as agent and banker of au Ajmir constituent, received a

llOldi for collection, and, on its acceptance by the drawee, credited the Ajmir
constituent with the amo11ut u of the date when the h~i would become
payable:
Hdd that, 1111 betweet1 the plaintiff' and the A jmir constituent, the plaintit',
wpon such credit in account being giYen, became a holder for value. •
Held also that on the A1111di being dishonoured at due date by the drawee,
tu p)amti11' wu jua\ified, by the uuge of ahroffa, in treating tht1 .Ajmir
B 244-o ~
.,-
Digitized by Google
114 BOMBAY HIGH COURT RJl!PORTl!I.
1875. coutituent u still entitled to credit for the amount, and himself u a holder
- - - - for value.
SuoANCBilD
BRIVD4'a Hdd alao that, u between the Ajmir constituent and the firet indoraer
M~AND (the defendant), the giving by the Ajmir constituent to the defendant of
.Joa.t.'KIKAL. another hv,idi, which wu never presented in Bombay for acceptance or
payment, was a oonaideration for the indonement by the defendant to the
Ajmir conatituent of the hv!Mli 11ent by the latter to the plaintiff and sued
on by him. •
THISCourt.
case was tried by GREEN, J., sitting alone in a Division
Latham and Farran for the plaintiff.

Pigot and I nverarity for the defendant.
The facts of the case and the authorities cited sufficiently
appear from the following judgment delivered by
GRUN, J. :-This is a suit on a hw,uJ.i, dated the 26th April
1871, drawn by Kassid:la Vanaraidas at Mandusar on the
firm of Bhaichand Zumachhram of Bombay for Rs. 2,500
payable to Shah 45 days after date. The kun~i which we
will refer to as Hw,u/.i A, bears on it the following enface-
ments:-"(This) hun<!,i has been sold by !Ujrup Hansraj to
Bhai Johnrimal Gambhirmal (which is the name of the
defendant's firm). It was sent from Ko~ by Joharimal
Oa.mbhirma.l to Bhai Joharimal Gambhirmal at Ajmir in
order to (the amount) being recovered on my a.ccount.
(This) hun~i has been sold by Joharimal Oambhirmal to Bhai
Popsangji Hardardas. (This) hun<!,i is sent to Bhai Lachh-
mandas Shivdas (the name of the plaintiff's firm) by Popsa.ng
Hardarbaksh from Nasirabad, in order to (the amount).being
recovered on my account."
The hurn!,i, it appears by the evidence, was received by
the plaintiff's firm in Bombay on the 2nd June 1871, and
was presented for acceptance on the following day, namely,
the 3rd June 1871, to the drawees, the firm of Bhaichand
. Zumaohhram. It was, on such presentment, a.ccepted, accord-
ing to usage, by the drawees. On the same day, namely, the
3rd June 1871, according to the evidence of Oambhirchand
Ranchhordas (now cashier, then a Gumasta, in the plaintiff's
Digitized by Google
BOMBAY 81GB COUBT RJ:POltT8. 115
firm,) an entry was made in the journal of the firm which 1875.
entiy was transferred to the ledger, and as appearing in the SuoANCBAND-
ledger, is as follows (Exhibit B). The heading of the Sar:•'11
account is '' An acconnt of Bhai Popsang Hardarbha3' as of JMur.::iBA?fD.
OKA RUU.L..
the cantonment of Nasirabad, being an account relative to
transactions effected on behalf of your house," and the entry
which is a credit one, is as follows:-" Journal, p. 186.
The 11th of Asad Vad [13th June] I hun<!,i [drawn] on
Bombay was [received] from Ajmir payable to you.r account.
It was drawn on Bhaichand Zumachhram on the 6th of
&isnk Sud 26th April [pa,able after 45 days]." The
effect of this was to f!)ve credit, as of the 13th June
1871, to the person sending the hunif,i, viz., Popsang Ha.r-
da.rbaksh in his account with the plaintiffs, for the amount
of the 1,un<!,i, the entry itself being made on the 3rd Juno
1871.
Acoording to the evidence, it is the usage or native shro.ffs
that where a kv;n,4,i has been accepted, the drawee,. on the due
date, sends a man with the money to the person who had
presented the bill for acceptance. If the money is not sent
on the due date, ihe holder sends a man to remind the·
drawee. In the present case, Gi.mbhircha.nd Ranchbordas
(the cashier of the plaintiff's firm) states that as the amount
was not received on the due date (viz.,. the 13th June 1871),.
he sent a man to demand it, who came back without any
money, and he, thereupon, put the matter into the hands
of a solicitor. On the next day (the 14th idem) the liuniµ
•
was protested for non-payment by a notary of Bombay, and:
the notarial certificate, Exhibit C, of such protest has been
put in evidence•
.According to the evidence of Lalcha.nd Haricha~d, a
111ehta of the firm of Bhaichaud Zu:machhram,. the drawees_.
(apealr.ing from entries in books of the firm made, not by
~ , but by another meJ.tti,. at present absent from Bom-
1,ay and at Wadnagar,. but which books, the witness was
ab)& to state, bad been kept in the ordinary course of busi-
nca), on the 19th Jwie 1871, a peJh or duptica.te of th&
Digitized by Google
116 IIOJI.BAY RIOB COURT BJ:POitTI.
1875. same hun~i was presented to the firm of BMichand Zumachh-

8110ANcH.1ND ram, and Was paid OD the 22nd Jone 1871.
8BIVDA'8
1'.
Ml1LCHA'.lfD
Under a commissiov directed to Ajmir in this suit, certain
JOBA'lUll.A.I.. evidence was taken there, and, according to the evidence of
the defendant, called by the plaintiffs as one of their wit-
nesses, the original hunq,i or Hu.n~i A, was sold by the
defendant's agent at Ajmir, one Sura.tram, and indorsed at
Ajmir to Popsang Hardarbaksh, whose name appears on
the hu.n<!,i as an indorsee, and who indorsed the hwru!,i to
the plaintiffs, the considera.t~n for such indorsem~nt by
the defendant's agent of Hun~i .,A, being another huni!,i
(hereafter referred to asHu.n<!,i B), dated the 25th .May 1871,
for Rs. 2,500, drawn by Popsa.ng Hardarbaksh at Ajmir
on the plaintiff's firm of Lachhmandas Shivdas at Bombay
payable to Shah 51 days after date, that is to say, on the
18th July 1871. Besides Hunq,i B, a certain sum in cash
appears to have been paid to the defendant by Popsang
Hardarbaksh a.<1 the consideration of the indorsement by
the defendant of Hun<J,i A, and this in respect of interest
at 8 annas per cent. on Rs. 2,500, for the period which
would elapse between the due date of Hun<!,i A (viz.,
the 18th June), and that of Hun<!,i B (viz., the 18tlt
July).
The firm of Popsa.ng Hardarba.ksh, however, shortly

after the drawing of Huni/,i B, stopped payment (the date
of such stoppage being stated to have been on the 3rd June
1871, and the defendant, being apprehensive, as he says,
that Hun~i B would not be honoured on presentation, filed
a suit in the court of the Deputy Commissioner at Ajmir,
on the 7th June 1871, against Popsa.ng Harda.rba.ksh, to
recover Rs. 2,500 on account of the H un<!,i B. Not, however,
content with having filed this suit, the defendant, as he
states, four or five days after Popsang Hardarbaksh's failure,
procured to be applied for and sent from .Mandusar
(where Hun<!,i A bad been drawn) to Bombay a pe.th or
duplicate o! Hun<J,i A and by means of his agents at Bom-
lmy, had the same pt-esented to the firm of Bhaioband
Digitized by Google
JIOKIIAY BIOB COURT UPOBT8. 117
/
Zumaclhram, and ~his pe.tk was, as before mentioned, paid __1_s_16_._
by the last mentioned firm on the 22nd June 1871. 8UGANCBA1'D
8HIV1>A 8
0
The defendant in his evidencti admits, so also do his 11.

• MULCBA111>
witnesses, that no express condition was made between h1S Joa•'auux..
firm and Popsang Hardarbaksh, that if the l,uni!,i of the latter
(Hunij,i B) was not honoured, or the firm of Popsang
Hardarbaksh failed, he (the defendant) was to realise the
huni!,i he sold them (i.e., Huni},i A).
On the 22nd June 1871, a written statment appears to
have been filed on behalf of Popsang Hardarbaksh in answer
to the suit of the defendant against him in the Ajmir
Court, relying on what would appear to be a good enough
ground of defence, that as the due date of the huni},i sued
upon had not arrived, the suit was premature. The defend-
ant states further, that having heard from BombBy of the
realisation of the pe.th, he applied for leave to withdraw his
suit, and the order allowing this, but giving leave to insti-
tute a fresh suit, on the plaintiff paying the costs, seems to
have been made on the 29th June 1871:
I do not find in the evidence any explanation of the reason
why the firm of Bhaichand Zumachhra.m refused payment on
the 14th June 1871 of the original Huni!,i A, as at that time
·the peJh had not been presented. The practice appears to be
for the drawee to pay the original or the pcJh, whichever is
first presented for payment, and that the drawees had noin-
tention to dishonour the hunij,i altogether, is shown by their
having paid the peJh a few days after the original was pre-
sented for payment. It may reasonably be presumed there-
from that in . the period between 3rd June 187l (when
Popsang Hard.arba.ksh stopped payment) and the 14th June
1871 (when the original Hunij,i A was refused payment)
some COl!lmunication took place at the instance of the defend-
ant with the drawees, in pursuance of which such refusal
•took place. Whether the anticipation of the defendant that
Hvniµ B would not be honoured by the plaintiffs o~ presen-
t&fiM?n was well founded or not, it appears from the defend-
.at'• evidence that he never sent it to Bombay for accept-
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118 BOMBAY HIGH COURT ·Rli:PORTS.
1875. anoo or payment on the plaintiffs as the drawees-'at any

Sua.urcBA11D rate, it never was presented to the plaintiffs in Bombay, and
6 W:"'3 this is an important part with regard to the question whether
M u ~ the consideration for the indorsement to Popsang Hard&r-
.J OKA Rlllil,
baksh of Hun,!,i A can be said to have failed.
A good deal of evidence has been given by several of the-

witnesses as to the cases in which, according to the usage of
shroff1J, payment of the amount of a huni!,i may be obtained
on a peJh or duplicate. The witnesses all seem to agree in
this that when a huni!,i has been lost °" stole~, the right-
ful holder may, according to such usage, ob~in from the
drawer a ptlh or duplicate, and, on presentation of this to
the drawee, has a right to .payment of the amount, the origi-
nal not having already been presented and paid, which, of
course, in the case of a h11,n<!,i payable to Shah, may occflr.
In the present case, however, the defendants, on hearing of
the failure of Popsang Hardarbaksh, to whom they had
indorsed Huni!,i A, and without any such occurrence as
the loss or theft of the h11.ni!,i, procured, as has been men-
tioned, a peJh, and, through their agents in Bombay, got the
same paid by the drawee, though the original had been
already, some days before, presented by the plaintiffs for
payment. They set up the case that, according to the
usage of shroffs, peJhs may also be properly obtained, not
only in the cases of loss and theft, but also that when a
person to whom a hwni/,i has been sold and indorsed has
failed, being indebted to the person from whom he had
obtained such huni!,i, the latter may obtain a pe/h from the
drawer and get payment from the drawee. I do not con-
sider that the evidence clearly establishes sueh a usage~
which would, it appears to me, have a very serious effect in
respect to the negotiability of h'flhU/,is. A subsequent bona
fade indorsee might find, on presentation of the original
kuni!,i, that, by reason of the insolvency of som& preeeding-
indorsee, and of the state of the accounts between. such
indorsee and his indorser-facts of which he mig~t be
wholly ignorantr-a pefh had been obtained and paid by the
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llOMBAY HIGH COURT REPORTS• I 19
.trawee. I do not, however, consider it necessary to decide 1875,

1>n the existence or validity of such an alleged usage. The Suo.u,cRAND
en"dence seems rather to have been given • by way of mee t - 8HJVD4'8
"·
ing any observations, which might have been made on the J~~=1:.. ·,
defenda.ut's conduct in procuring the peJh and getting it
paid than by way of affording an answer to this suit. Had
the suit been against the drawees, the question of the pay-
ment of a ~lh might have been very material, but I do not
see that it is in the present case, which is a ·suit by holder
against form.er indorser.
The first issue raised is, whether this Court has jurisdic-
tion to entertain this suit. A suit for the same matter was
filed in this Court by the present plaintiffs against the
present defendant in 1871 without having obtained the
leave of the Court under Clause XII. of the Letters Patent.
On the hearing before myself in July 1872, the suit was
dismissed for want of jurisdiction. I think the suit was
then rightly dismissed. When the present suit was insti-
tuted in November 1872, the leave of the Court to institute
the Euit was first obtained, and the question is not, as in
July 1872, whether the cause of action arose, but whether
any part of it arose, within the jurisdiction of this Court.
It is contended when a hun.i!,i has been drawn out of. Bombay
upon a person in Bombay, indorsed and delivered out of
Bombay to one who, out of Bombay, indorses the same and
sends it to a person who, in Bombay, receives it, gets it
accepted, and presents it for payment to the drawee, by
whom it is dishonoured, that no part of the cause of action
by the Bombay holder against the first indorser has arisen
within the jurisdiction.
A certain number of cases were cited in the course of the
hearing, being decisions chiefly of English Courts, as to the
meaning of the words" cause of action." In three classes
of oases, chiefly in England, has the meaning of these words
been considered. (1) In cases of applications to change
tlae venue of a transitory action to another county on an
alldavit that the plaintiff's cause of action arose in the
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120 BOllBAY HIGH COURT UPORTII.
1875. county of B, and not in the county of A (where the action

Suo.urnBANI.I was brought), or elsewhere ont of the said county of B.
· SB~.t.·a (2) With reference to the Words of the Act establishing
!'f0 L?BAND County Courts in England (9 and 10 Vic., Ch. 95, Section
.,OBA JlJMAL.
128,) giving an election to proceed in the superior courts,
where (among other cases) "the ea.use of action did noi
arise wholly or in some material point within the jurisdic-
tion of the court where the defendant dwells or carries on
hia business at the tiQle of the action brought.'' And (8)
with reference to the provision of Sections 18 and 19 of tb e
Common Law Procedure Act, 1852 (15 and 16 Vic., Ch. 76),
regulating tho mode of proceeding in the superior courts
against defendants, whether British subjects or not, residing
out of the jurisdiction of such Courts, when a satisfactory
affidavit has been ma.de'' that there i1 a. ea.use of action
which arose within the jurisdiction or in respect of a contra.et
made within the jurisdiction," and when certain other
formal steps have been taken.
Then we have of cases arising in India a certain number
reported, where a judicial interpretation or application has
been given viz. (1) to the words, in Bengal Regulation 11.
of 1803, Sections 3 and 4, "where the cause of action shall
have arisen,'' or to the words, in Section 5 of Act VIII. of
1859, "if the cause of action shall _have arisen," and (2) to
the words, in Clause XII. of the High Court Charters of
1865, "if the cause of action shall have arisen either wholly,
or, in case the leave of the court shall have been first
obtained, in pa.rt' within the loco.I limits of the ordinary
original civil jurisdiction,'' &c.
Of the first class of the English cases, of which a great
ruany are to be found, it will be sufficient to remark generally
that they all treat a cause of action M something divisible
and consisting of parts having possibly a local origin in
different places. I shall content myself with referring to
. three of them : <Jlusold v. Olissold (a), which was an action
for libel, and the libel having been written in Berkshire
(a) I Term Rep. 647.
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JiOMBAY HIGH COURT REPORTS. 121
and directed into Surrey, and the venue being la.id in 1875.
London, an application to change the venue to Berkshire SuGANcHAND
was refused, because the defendant could not truly make Sm~~A's
the usual affidavit that the cause of action arose wholly in MuLcHAND
Berkshire and not elsewhere; Caill.and v. Champion (b), Jo1U'!WlAL.
an action on a policy of life insurance, where it was held
that the whole cause of action could not have arisen in
London, a.a the person, whose life was insured, had died in
Scotland; and Butler v. Fox (c), an action on a policy of
marine insurance made in London, the breach alleged being
non-payment of the value of the goods insured. An appli-
cation to change the venue to London was refused, as it
could not b'e·truly said that the whole cause of action arose
in London, the goods, the subject of the policy, having been
lost on a foreign voyage by perils of the sea.
The second class of English authorities, those, namely, on
the jurisdiction of the local county courts, it is not necessary
to enumerate, as they are all, or almost all to be found,
cited and commented upon in the judgments of Sir Adam
Bittleston or of Mr. Justice Holloway in the case of DeSouza
v. Coles (d). I cannot understand why these cases should
not be treated as authorities, so far as applicable, on the
interpretation of the language of Clause XII. of the Letters
Patent. The High Courts are not courts of ordinary ori-
ginal civil jurisdiction over the whole territories of the
presidencies to which they belong. Though, in some re-
spects, their original civil jurisdiction is wider than that of
the District Courts, yet it is limited, and there is no pre-
samption in favour of jurisdiction beyond what is to be
found expressly conferred by the Charters of constitution.
And the County Courts Act and Letters Patent agree in this
that they both expressly treat a cause of action as consisting
of parts which may have differe~t localities.
The third class of English cases, those, namely, which
have reference to Sections 18 and 19 of the Common Law
Procednre Act, 1852, are Sichel v. Bwch (e}, Allhusen v.
(b) 7 Term Rep. 205. ' (d) 3 Mad. H . C. Rep. SM.
(e) 18 LI. (C. P.) 304. _(e) 2 Hurl and Colt. 9M; S. C. 33. L. J . Exch. 179.
B 24,4,-p
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122 BOMBAY man COURT REPORTS.
1575. !lfal9ar,Jo (.(), Jaebwn v. Spitfal (y), Durl1<tm v. Spence (It),

Clierty v. Tlwmp.~on (i), and Va1111lwn v. JVeldon (j). 'l'he
S110A'SCHA:-.1,
SHl\'DA'l!
,.
1
fi rs t men t·10neu
., case (w h"ICh was m
' th e E xc hequer) wa..c.; a.
JMt•L~HANn suit by indorsee against drawer and indorser of a bill o f
OBA RUIAL.
exchange. 'fhe defendant was a merchant residing in Nor-
way, where he drew the bill on an .English house, and made
it payable in London. He indorsed it in Norway, and sent
it by post to a firm in England, who indorsed it to the
plR.intiff. It was held that tl1c cause of action did not arise
within the jurisdiction, on the ground that the contract was
not wholly made in Englund, Martin, B., one of the members
of the Court, expressly stating that the cause of action in-
clmled the drawi11g and indorsement on the bill of the n3.Dle
of the drawer, both of which took place in Norway. This
case of Sicltcl v. Bo1·clt, in its circumstances, has great simi-
larity to the present one, viz., a bill drawn or indorsed, out
of the jurisdiction, by one not subject personally to it, on a
person ,vithin the jurisdiction, and there dishonoured. Both
in the argument and judgment, it seems to Juwe been
u~snmed that ,,art of the cnuse of action arose within the
jurisdiction, the question being con!-idered to be, did the
11•/wle of it so arise? In the second case (which was in the
Queen's Bench) it was held where a contract was made
out of the jurisdiction, to be performed within the juris-
tliction, that the breach within the jurisdiction did not
constitute a cause of action arising within the jnrisdiction.
In the third cafle, however (which was in the Common
Plen.s), it was held, in the case of a contract made out of
the jurisJiction not to do a certain thing, which contra.et
was broken by doing that thing witl1in the jurisdiction,
that a cause of action did arise within tho jurisdiction. In
the fourth case (which was in the Exchequer again), it wa.-;
held (Chief Baron Kelly, however, dissenting) that in the
case of t1. contract made ont of the jurisdiction, but broken
within th~ jurisdiction, a. cause of action did arise within
the jurisdiction, thus following Jcickson v. Spittal. In the
(f) L . R. 3 Q. B. 3.0. (h) L. R. 6 Exch• .W.
(y) L. R 5 l'. P. 542 . (i) L. H.'; Q. B. 5i3.
(j) L. R. 10 C. P. 47.
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BOMD...\Y HIGH CO'CRT RErORTS. 1:!3
fifth cnse (which was of the Qnc>en's Bench), the case of __ 1s;-:;.__ _ _
Jackson v. S11itf1tl was dissented from and Sichel v. Botch SPnAN<.:H.Ai<o
and Alllwsen- v. M<tlga.ri'JO, expressly aahere
, <l to, b y hold&i
mg SHIVDA'ts
t'.
that in too case of a contract made in Germanv but broken Mui.cKAJSo

• ' JonA'Rl:.JAL.
in EIJglaud, no cause of action arose within the jurisdiction.
The decision, however, went also on another ground, viz.,
that tho breach also took place in Germany. It will be
seen, therefore, that, so far as concerns the word.<; in question
occurring in the Common Law Procedure Act, 1852, there
had been a conflict of decision between Courts in England
of co-ordin!lte jurisdiction, and that the law on the point
must be said to have been in an uncertain state. A diver-
sity, it is further to be observed, seems to exist among tho
Judges who took part in the foregoing decisions, not only
in respect to the interpretation to ho put upon the vvor<ls
of the section . ta.ken in conjunction with other word,;
connected with them, but also in the legal definition to bo
given in general of the phrase "cani;e of action." The point
again arose in the last mentioned case, viz., Viwglwn v.
lVeU(m, and the Judges of all the three courts appear to
have conferred together, and o. majority having expressed
themselves in favour of following tho deci~ion in ,Ta.ck,;on v.
SpiUal, the Judges of the Queen's Bench,. though retaining
t-heir opinion, for the sake of conformity agreed to bo 'Louud
by the opinion of the majority. Though uniformity of
praetice on this point was thus secured, the divergence of
opinion as to the elements of a cause of action has still re-
mained. It is to be borne iu mind also that the provision:i
of tho Common Law Procedure Act, which have given riso t•J
this diversity of decision, concern matters of procedure
and not jurisdiction, that is to say, they furnish a less cum-
brous and simpler means of exercising a jurisdibtion the
Courts already had, and arc not, as the provisions iu the
English County Court Ad and the Letters Patent of the
High Court, directed to the marking out and limiting of
the jurisdiction of a Court. For this reason, it seems to me
that the English decic.ions on the County Court Act are
more in point with reg:i.rd to the interpretation of the
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124 BOMBAY HIGH COURT REI'ORT8.
1875. Letters Patent than those on the matter of venue or of the

SuoucHAND Common Law Procedure Act, 1852.
SmvnA's
"·
!4ULCHAISD
....
Jou'ruxAL. Of the first class of Indian c&Bcs, those, namely, relating
to the effect to be given to the words ''if" or "when the
cause of action shall have arisen," the case of Luclcmi-
chun<l v Zarawurm1dl (k) is of course as an authority, and
so far as it goes, of the highest importance. Mr. Justice
Holloway, in his judgment in DeSouza v Col,es (l), lays it
down that this decision "involves implicitly the following
propositions :-(1) The making of the contract is a matter
perfectly indifferent, and is no part of the cause of action .
(2) The place at which a.n obligation is to be performed ie
its seat, and the pla-0e of jurisdiction. That place of ex-
pected performance may be determined by the circum-
stances of the case, and in a cont~t of· partnership, ite
main seat is the place at which each of the partners is bound
to pay what may be due." With all respect for the opinion
of Mr. Justice Holloway, it does not appear to me that
the case, when considered, does involve the propositions
mentioned, or, at any rate, the first of them. The suit
was brought in the Zillab Court at Agra to 1·ecover
Rs. 10,75,156-1-0, being the alleged share, with interest, of
the defendants of the loss, viz., Rs. 22,67,962, incurred in
respect of certain opium speculations which had been
carried on on the joint account of the plaintiffs and defend-
ants, The plaintiffs , had firms at Muthra (within the
jurisdiction of the Agra Court) and at Rutiam (which was
without it), and the defendants carried on business at Rutlam.
An agreement was made between the two firms in cont.em•
plation of making opium speculations on joint account, and,
in considering the effect of the judgment, it is to be taken
as a fact to be assumed that this agreemenJ; was concluded,
in respect of place, at Rutlam. So far as the terms of the
agreement appear in the report, no place can be sa.id to have
been fixed for the performance of it. The agreement pro-
(k) 8 Moore lnJ. App. :!91 , (l) 3 Mad. H. C. Rep . 413.
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BOllBA Y HIGH COURT REPORTS, 125
vides for the opening ~f a separate set of books £or the joint 1875.
transactions of the parties, fixes their shares, and provides SuoANclL\Nn
that the business was to be conducted by one Saligram, and SHI:.DA'H
the only reference to place is in these words: " In these MuLCHAND
. t·~
t mnsac ti.ons your ('i.e. p1e.m 1us') capita
. 1 at Muth ra shall be JoH.A'llUIAL.
embarked." Larger transactions in opium were thereupon
entered into in various places, the seat of the partnership
being at Ma.thra, where the moneys wei::e supplied by the
plaintiffs, where the partnership books were opened and
kept, and to which place the account sales of opium sold
elsewhere and the proceeds themselves of such sales were
sent. It appears further that at Muthra also the co-partner-
ship dealings and accounts were closed and a balance struck
against the co-partnership amounting to the aforesaid
sum of Rs. 22,67,962, and it was to recover the sum of Rs.
10,75,156-1-0, being the defendants' share of such loss,
that the suit was brought. The Judicial Committee held
that the cause of action arose at Muthra. There is certainly
nothing in the course of the judgment which oan be said to
involve this, that in the particular case the original contract
of partnership formed any part of the cause of action at all.
The decision, however, in my opinon, by no means involves
the sweeping proposition stated by Mr. Justice Holloway,
"that-the making of the contract is a matter perfectly
indifferent, and is no part of the cause of action" in any
case. The decision may rather, it seems to me, be treated
as one involving this, that in such circumstances as there
existed, the contract of partnership, on the footing of which
transactions were engaged in, was not a. part of the
cause of action, and that not being a part of the cause
of action, the Court considered the place where it was made
to be a matter perfectly indifferent. The suit was not one
for a breach of any term of the partnership contract, but
~ther as appears what in English pleading would be called
ua action on an account stat.ed, the statement of such
account having t.a.ken place within the jurisdiction of the
court where the suit was brought. The only other form
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121> BOMBAY IilG It COURT REl'ORTS.
18i6. the suit can have assumed would be for a. partnership

;;:-ANcHAND account, and where else could the cause of such action be
S 11 rvoA':1 said to arise, except where, by consent of the parties,

a .
MuLcHAND the head-quarters of the partnership had been esta.bhshed,
the moneys advanced, the accounts k cpt, and t he fi na (

1
JOHA RlMAL.
accounts of the partnership dealings closed ? The language

of the judgment is, to say the least, consistent with the
existence of the opinion, on the part of the Judicial Com-
mittee, that the making of the contract not being a part
of the cause of action, the fact that it was made out of
the jurisdiction, was immaterial, and did not preclude the
court from entertaining the suit, which was either on an
account stated within the jurisdiction in respect of partner-
ship transactions, the head-quarters of which were within
the jurisdiction, or for an account of such partnership
transactions.
The cases in which, in t.lie courts of British India, the

question as to the meaning of the words "ea.use of action "
in the Letters Patent has arisen, are, besides DeSouza. v.
Coles, the following: Rmjivandas v. Bhal)vandas (111) and
M olhoormohun Roy v. Jmloor11011cy Dossce (n),
In these two cases, the leave of the court had not been
previously obtained to the institution of the suit, but I
thiDk, from what appears in the reports, that · both .Mr.
Justice Phear and Mr. Jm1ticc McPherson would have hel_d,
in a case like the present, that a part of the cause of action
had a.risen in Bombay, and that if leave had been first ob-
tained to institute the suit, the conrt would have had jurisdic-
tion. In the case of Hut!, v. Long (o), however, in an
action on a bill of exchange by the indorsee against drawer,
the fact that notice of Jishonour was given to the defendant
within the jurisdiction of a. particular County Court, where
also the defendant resided, was held sufficient, under the
County Court Act, to deprive the plaintiff of his costs, the
(m) 7 Beng. L. R. 102 and on appeal 535.
(n) 10 Beng. L. R. 122. (o) 10 L. J. Q. B. 325•
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BOMBAY BTOH COURT REPORTS. 127
~uit having been brought in a. superior court. The decision 1875.

involved this, that notice of dishonour was a pnrt, and a suoANCHAN~
mat~rial part, of the cause of action against the drawer of 8 "'~.1.>A'i1
a dishonoured hill of exchange, and that such notice having Mu,.~uAND •
L - •
,.M:"en given • l .
wit nu t he Jnr1s
. . d'1ct1on
. of a certam . Count,y Jou.\ RUL~L.
Court, where the defendant resided, the cause of action in

some material point arose within such jurisdiction. In the
present case the dishonour of the bill itself by the drawee
took place in Bombay, and was, I think, beyond all doubt,
a part, and a material part, of the cause of action against a
prior indorser, and this being so, and the leave of the court
to institute the suit having been obtained, I am of opinion
that this court has jurisdiction to entertain this suit.
With regard to the other questions in the case, it appear11
f~m the evidence that the plaintiffs (who are a considerable
firm of shroffs and bankers in Bombay and other places)
had, for some time, acted as bankers 'and agents of a firm
of Popsang Hardarbaksh who carried on business at Ajmir
and elsewhere, but not in Bombay. The course of the
ordinary business was that the firm of Popsang Hardar-
baksh, if they had lnin~is drawn on Bombay, used to send
them down to the plaintiffs for collection, and nsed them-
selves to draw liun</,is on the plaintiffs' firm in Bombay
against any fllllds of theirs in the plaintiffs' hands, or, if
there were no such funds, the plaintilfs used to honour
such lmn~i.s on the credit of their correspondent. In th!:\
present case it appears that, on receipt by the plaintiffs of
Httn~i A, and on its acceptance by the drawees, tho plain-
tiffs gave credit to Popsang in his account with the plain-
tiffs' firm for the amount as of the date when the lmn~i
would become payable, the drawees being at the same time
debited. At the time when such credit wa.'! given and
after allowing such credit, the balance against Popsang
in account with the plaintiffs was Rs. 13,221-8-0. That
such credit in account is a consideration in the case of an
indorsee of a bill of exchange is illustrated by the case of
Percival v. Frampton (p), and the plaintiffs, though agents
{p) 2 C'r. l'tf. auJ R. 180.
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128 BOICBAY HIGH COURT REPORTS.
1875. of Popsang in receiving the hunq.i for collection, became,

suoAliCHAND upon such credit being given, holders for value. The
SHI!.DA's evidence of the practice followed by shroffs when a hun<!,i
MULCHAND has been sent down to Bombay for collection and when
JoaA'RDIAL.
payment is refused, the amount having been already cre-
dited to the sender, is that in general the hun4,i is returned
to the sender, a debit entry a.gairust him being at the same
time made. In the present case, however, on the refusal
by the drawee to pay the hunq.i, no debit entry was ma.de
to the sender Popsang, but the amount remained credited
to him, the cashier of the plaintiffs' firm in Bombay stating,
as the reason for not so debiting the sender, that they
wished to sue the defendant. The plaintiffs' conduct in
treating Popsang as ell.titled to credit for this hunq.i, though
dishonoured by the drawee, has been consistent, as it
appears, from the evidence ta.ken at Ajmir, that in the suit
filed some months after at .Ajmir by the plaintiffs against
Popsang to recover the balance due to them, they still
allowed credit for the amount of this hun~i. Having
regard to the evidence of usage, I am of opinion that the
plaintiffs were entitled to take the course they did in tree.t-
ing Popsang as still entitled to credit for the hunq.i, though
dishonoured by the drawees, and in tree.ting themselves as
holders of the so.me for value. With regard to the question
of consideration given by Popsang to defendants for Huni!,i
.A, the Hunq.i B was of course in itself a. consideration
besides the payment of a sum in cash for the difference in
interest. The Hun~i B was, as has been seen, never pre-
sented in Bombay for a.cceptance or payment, and · was,
therefore, never dishonoured. How, then, can it be said
that there has been 8/D.J failure of consideration for the
indorsement to Popsang of Hu n4i A 7 There is no ground
1
for any certain conclusion or presumption that Hunq.i B, if

at once presented (as it might have been) for a.cceptance
by the plaintiffs before Popsa.ng's failure was known in
Bombay, would not have been accepted by the plaintiff's,
and as the defendant had given consideration £or it, he
might have sued the plaintiffs upon it, if accepted by them,
•
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BOMBAY H?OH COURT REPORTS. 129
and recovered the amount. I am of opinion, therefore
, - -1875.
-~
that there was consideration for Hnndi A both as between i;uoANcUAND
• SHIVDA'll
Popsang and the defendant and as between Popsang and v.
the plaintiffs, and that of the former consideration no failure J::,~~!~ •
has been shown. On the 2nd, 3rd, and 4th issues, there-
fore, the finding is that, besides the hu.ng,i in para. 3 of the
written statement mentioned, there was payment of a sum
of cash, the amount of which docs not appear, in respect
of interest on Rs. 2,500 for tho period between the due
dates of that hwn4,i 11.nd the hmu!,i sued upon in this suit.
That further the plaintiffs received the hung,i sued upon
as agents of Popsang Hardarbaksh, but that bofore and
at the time of the same becoming payable, and at the time
of the institution of this suit, they became and wore holders
of the same for value, and so far did not hold the same as
agents only of the said Popsang. This being so, tho find-
ing on tho 5th issue is that the plaintiffs arc entitled to
recover the moneys claimed in the plaint. Decree for the
plaintiffs for Rs. 2,500, with. simple interest at 9 per cont
per annum from the 15th June 1871 till this day, and
Re. 10 for notarial charges; costs. Interest on decree at
6 per cent.
Non:.-Thia decree was l!llbeequenUy, on October 15th, 1875, affirmed
with costll by the Appellate Court, WESTROPP, C.J., and
SAROEJST, J., see
I, I. L. R. (Bombay), 23.-Ed. .
[ ORIGINAL CIVIL JURISDICTION.]
Suit No. 47 of 1871. April 2 and 3.
H1R.11 JINA' ...................................... • Plaint-iff.

NA'RRAN l!uw1 and another .......... . . Defendants.
Pradkt-Apptalfrom orcler-Dkru-Oiuil Procedure Code, Settion 363.
The question whethoror not an order is appealable is one for the decision
or the Court.
An order pa8IICd in a suit, referring it to the Commissioner to take the
ICCuunt.s between the parties, is a decree.
An onler, passed on a cc1tilicatc given (under Rnle 371 of the J<.:quity
RaI. of the Supreme Court) by the CollllUissioncr, tt11bm.-q11eutly to the
order of reference, is appcalable,
B244-q
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130 BOKBAY HIGH COURT RIPORTS,
1875. SfJfldhl&di v. Ah-1bhdi (9 Dom. H. C. Rep. 398) explained. TI~ Jiutira .

HtR.11 JINA' of Pm ofCalcuUa v. 1'he ONntal Gtla <Jompa,ng (8 Beng. LR. 433) dia-
o. tiDguiehed.
NA'RU.N
Muw. THE plaintiff, desiring to appeal from an order of Bayl ey,
J., ma.de on the 19th December 1874, by which a deci-
sion of C. E. Fox, Commissioner for taking accounts, was
reversed, lodged a memorandum of appeal with the Pro-
thonotary, who, however, refused to file the appeal, on the
ground that the order was interlocutory, and therefore not
. appealable {a).
Inveraritg, for the plaintiff, on the 2nd April 1875 brought
the facts stated above to the notice of the Appellate Court,
WB8TROPP, C.J., and SAROBNT, J.
PER CURIA)( :-We are of opinion that we ought not to

delegate to the Officer of this Court the decision of a ques-
tion properly cognisa.ble by the Court itself, viz., whether
or not an appeal lies. When a party, desirous of appealing
from an order, lodges his memorandum of appeal within the
proper time, the right course is for the Prothonotary to file
the appeal, and to bring to the notice of the Court the fact
that it is doubtful whether the order is appea.lable. Of course,
if the memorandum is not lodged within the proper time, the
Prothonotary is right in refusing to file the appeal, and the
intending appellant must then apply to the Court by special
motion.
On the following day, April 3rd, 1875, the case again
ea.me on for argument on the preliminary question, whether
or not an appeal lay from the order of Bayley, J., made on
19th December 1874, on the certificate of C. E. Fox, Com-
missioner, dated 2nd October 1874.
The plaint was filed on 24th January 1871, and sought
to recover from the defendant the amount alleged by the
plaintiff to be due to him on the common money counts, and
on an account adjusted on the 18th October 1868. The_
defendant, in his written statement, pleaded: 1st, that the
Court had no jurisdiction to hear and determine the suit;
2nd, that the account was not adjusted as in the plaint
(a) Sondbhdi v• .Ahmedbhdi, 9 Bom, H, C, Rep. 398, aee pp. 405 et ~q.
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BOKBAY HIGH COURT REPORTS, 131
alleged; and 3rd, that the plaintiff's claim was time-oarred. 1875.
The case came on for hearing before Bayley, J., on the 20th_H_IR.J-IJ-1-~.._-.
December 1873, when the learned J udgo held that no ad3.'ust- NA'BB.ilf
"·
ment, either in October 1868 or afterwards, had been proved, M:uLJ1.
and that as to certain items included in the plaintiff's claim
the Court had no jurisdiction, inasmuch as the whole ea.use of
action with regard to those items had not arisen within the
jurisdiction, and the plaintiff had not obtained leave to sue
in respect of them under clause ·12 of the Letters Patent.
On the question of limitation, the learned Judge held that
the plaintiff was entitled to an account extending over
the six years immediately preceding the date of the filing of
the plaint, and referred it to C. E. Fox, Commissioner for
taking accounts, and as such a permanent officer of the
Court, not specially appointed under Section 181 of the
Civil Procedure Code in this cause, to take such account,
directing him to allow the defendant credit fortwo items,.
admitted by the plaintiff in his particulars of claim to have
boon received by him within the six years immediately
preceding the 24th January 1871, but not within the ju-
risdiction of the Court, " as well as for such other sums
as the defendant might prove himself t0 be entitled to credit>
wherever the_same should become payable.'" The plaintiff
filed his account before the Commissioner on the 1st April
1874, giving credit to- the defendant for the two items as
directed by the order of reference, and to this account the
defendant filed a smch&rge on the 23rd June 1874.,. by which
he claimed credit for various payments made by him to the
plaintiff. Before the- Commissioner the plaintiff admitted
having received the psymonts mentioned in the surcharge,
bot contended that the defendant was not entitled to credit
for them in the present account, inasmuch as they had been
appropriated towards the payment of sums due from the de-
fendant. prior to the 24th January 1865, and not included in
ihe account directed by the order of referenee. It was not
pretended by the defendant that at the time of making the
payments be had appropriatQd them to the discharge of any
particular debt, but he contended that, having regard to the
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132 BOMBAY JIIOH COURT REPORTS.
1875, terms of the order of reference of 20th December 1873, the

HIR.n Jn1A' plaintiff was not entitled to appropriate these payments
V,
NA'II.R.AN towards the satisfaction of any claim prior to 24th J anua.ry
Mu1.11. 1865. The Commissioner held that the plaintiff's contention
was right, and that, under the circumstances, the plaintiff was
entitled to appropriate these payments to the liquidation of
the earliest debts due from the defendant. Upon this the
defendant obtained from the Commissioner a certificate,
datod 2nd October 1874,' stating that such had been his de-
cision. On that certificate defendant's counsel moved before
Bayley, J., for a reversal of the decision of the Commis-
sioner, and, on the 19th December 1874, the learned Judge
passed an order directing the Commissioner that the pa.y-
monts made by the defendant after 24th January 1865 could
not be applied to payment of ·the balance due from him before
that date.
Tho question now for the decision of tho Appellate Court
was, whether an appeal lay from this ~rder of 19th Decem-
ber 1874.
lnvcrar-ity for the plaintiff, appellant :-By the practice of
this Court an appeal lies from the order of reference. Dayltl
Jciini,j v. J(hatav Latllul. (b) was nn appeal from such an
order. Whether this order of 19th December 1874 is ap-
pealable, depends on whether the order of reference of 20th
December 1873 is appealaule. If that order is held to be
interlocutory, S0n1.iblui,i v. .11hmedbluli (c) is against me. The
11ucstion, therefore, is, whether the order of reference of 20th
December 1873 is a" decree" within the meaning of Section
3u3 of tho Civil Procedure Code. If it is, the order of 19th
December 1874, which is supplemental to it, is also a decree,
or, if it is not a decree, is still appeoluble as being made after
tho order of 20th December 1873, which is a decree. In the
Justices of Peace of On/.cutta v. Tltc 01·iental Gas Company
(d), a wider construction was put on the word'' judgment"
in clause 15 of the Letters Patent than was done in Sona-
bhrii v. Alnncdbl«ii. DeSoti::li v. Coles (c) gives a still wider
(b) t:.111,ra, p. 97. (rl) 8 Be, g L. R. 433.
(r) 9 Hom. H. V. Rep. 398. (l ) 3 Mai.,. H. C. Rep. 38-!.
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II01lBAY HIGH COURT REPORTS. 133
constrnction to the wonl" jndgment" than either the Bom- 1875.

bay or the Calcn~ case. H the Judge in the court below Hm.n Jui~;
had held that the plaintiff was not entitled to an account., v.
NA'RR.t.N
such a.n order would have been appealable. The order Muu1.
directing the account to be taken must, therefore, also
be appealable. Il, however, the order of reference is not
appealable, then ~ order of 19th December 1874 is not.
In that case we could, under Section 868 of th~ Civil Proce-
dure Code,appeal against both those orders after final decree,
and what would be the result? If the order of 20th Decem-
ber 1873 wero wrong, all proceedings held and accountlf
taken under it wonld be upset, and all the time u.nd money
spent in the proceedings before t~e Commissioner would bo
wasted. [He was here stopped by the Court. J
['V ESTROPP, C.J. :-The separate certificate of tho Commis-
sioner, and tho rulo u.ud pru.ctico of this Court, under which
that certificate was given, u.re entirely outside but not op-
posed to tho provisions of tho Civil Procedure Code. Of
that rule, and of that practice, the defendant has uvailed
himself, by getting the cortificato which tho Commissioner is
authorised to give for the purpose of preventing protracted
litigation. . How then can tho defendant, after this, be
allowed to rely solely upon the Civil Procedure Code?]
Scoble, Advocato-Gcnorol, for the defendant, re!lpondent:

-A 71iandamus is a proceeding tlelwrs the Civil Procedure
Code, yet, on the authority of the Justices oj Peace of Oalcutf<i
v. 'l'he Oriental Gas CMnpany, the order for a vutndctmus is
not appealablo. If by the order of 19th December 1874
the Judge in the court below misinterpreted his own former
order of 20th Decembor 187J, the plaintiff ought to have
waited until the passing of the final decree on the Commis-
sioner's report, and then have appealed against that decree.
The order of 19th December 1874, which is now sought to
be appealed against, does not finally affect the rights of the
parties, and the question whether such an order is appeal-
able must ho decided independently of the fact whether or
not the plaintiff gets anything by tho fiual decree. That
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13~ BOKBAY HIGH COURT KEPORTS.
1875. this order was in a matter not contemplated by the Civil

.H1RJ1 JINA' Procedure Code does not affect the qnest\on, for &nabhai
N.a':RAN v. .Ahmedbhai decides that interlocutory orders are not ap-

MuLJI. pealable; this order is interlocutory, being simply a direc-
tion to the Commissioner to take the account in a particular
way, and it is clearly "prior to decree,, within the meaning
of Section 363 of the Civil Procedure Code, because the
Code contemplates no other decree than t.hc final decree.
The practice adopted by the defendant, no doubt, was that
reserved by the rules of the Court, but, however that may
be, this case must be governed by the decisions of the Courts
of Bombay and Calcutta in the two cases alrP.ady cited. The
order now sought to be appealed against is not decretal in
its nature, even assuming the order of reference to be so.
If the order of reference is not a decree, then this order,
being "prior to decree," is not appea.ia.blc under Section 363
of the Civil Procedure Code. If the order of reference be
a decree, then, with regard to the order now sought to be
appealed against, the plaintiff ought to have proceeded
under Act XXIII. of 1861, for it would be an "order in
execution of a decree." But the order of reference itself
was not decretal, for no account was prayed either in the
plaint or written statement. The new Rule No. 1, at p. 38
of the Rules of this Court (f), shows bow far the old Equity
(f) 1 ' All rules which l\t the time of the abolition of the Supreme Court of
Judicature at Bombay were in force for regulating the practice 'If the Court
at its Plea and Equity Sides, eb&ll extend. l!O far as thf' same are applicable,
and as nearly as may be, to o.ll matt.era of Ordinary Original Civil Juriadiction
in tbi11 Court, except in such respects as the same m&y be contrary to the
Ste.t. 24 and 26 Vic., Chap. CIV., or to the Letters Patent continuing this
Court, bearing date the 28th day of December in the 29th year of the reiga
of Iler Majesty (A.D 1865), or to the Rules uf this Court made, or which
shall hereafter be made, under &nd in conformity with the 37th Section of
the said Letters Patent, or to the proviaiona of Act VIII. of 1859, lllld of any
aubeequent law which baa been made, amending or altering the same by com-
petent legislative authority for India, save so far as the aaid provisions of the
aaid Aot VIII. of 185!1, and subsequent laws as aforcaaid, have been, or here-
after ah&ll be, 116 regards this Court, duly modified by its Rulee which bave
been, or herc&fter shall be, made, 1111 aforesaid, nuder and in co•fonnity with
t~e 37th Section of the aaid Letters Patent. And the practice of tail Court
in all matt.ors of Ordinary Original Civil Jurisdiction aforesaid, aball be like-
wise l"tlgulated by the provisfons, so far as the l'IUDB are applicable, of the aaid
Act VIII. .,f 1859, and of any subsequent law which bas been made amending
or altering the eame by cowpetent legislative authority for India, except so
far aa such provisions are, or hereafter shall be, modified by tbia Court, under
and in conformity with the said 37th Section of the Letters Pateut granted by
Ber laid .Majeaty in punsuance of the said l:tt&t. 24 and 25 Vic., Chap. ClV.,
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BOHBAY HIGH COURT REPORTS. 135
Rules followed by the late Supreme Court a.re to be applied 1875.

in this Court. The old Equity practice of allowing appeals -H-i_RJ_I_J_i_N4-,
from interlocutory orders is contrary to the Letters Patent NA~RAN
and contrary to the Civil Procedure Code. [He cited Pei'i- Mvur.
tion. of Court of Wards (9).] The order sought to be appeal-
ed against is not final, nor even decreta.l, but is simply e.
direction to the Commissioner to take the account in the
way already ordered bythe order of reference, which he had
misinterpreted. But what the plaintiff is seeking to do by
appea]ing againstthis order is to appeal against the order of
reference after allowing the time for so doing to elapse. If
this order is appealable, then whenever an order is passed,
during the pendency of proceedings, to parties to whom
liberty to apply is reserved, it would be open to the other.
aide to say that such orders are decrees, and to claim to be
allowed to appeal from them, whereby litigation would be
indefinitely protracted and great inconvenience occasioned.
Inverarity, in reply :-Such inconvenience does not seem
to be experienced in England, where appeals are allowed from
orders made on applications to vary or discharge the chief
clerk's certificate: Daniell's Chancery Practice, 1226. More-
over, in this country the Letters Patent of 1~66, Clause 40,
clearly contemplate the admissibility of appeals on interlo-
cutory matters.
WESTROPP, C.J. :-The Commissioner decided that the
principle on which the account was to be taken· was that
the plaintiff should beat liberty to show that the defendants'
payments bad been made in respect of matters other than
those included in the account ordered to be taken by the order
of 20th December 1873. This decision materially affects
the merits of the case, and of course the reversal of that
decision would also do so to an equal degree. With this
,..a the St&t. 28 and 29 Vic., Chap. XV. Nothing hereinbefore contained
-11 aff'ect Chap. XVIII. of the Rules of this Cou1t, made on the 25th
a7 of November 1867, regulating the proceedings in its Admiralty and
V°Jc».Admir&lty Juriediction,or theProcedure of this Court in its Testamentary
ucl Intestate J uriadiction, which 1111 heretofore shall continue to be the same
• diat of the .aid SupremeCourt in its like jurisdiction at the time of ite abo•
Jit.ioa.
(g) 7 c.lc, W. R, 222.
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1875. important question affecting the case, the defendants, attor-

lilRJI JINA' ney obtained the certificate from the Commissioner. The
v. practice, by which the Commissioner is entitled to give
NA'RRAN
Muur. such a certificate, was an old and most useful practice in the
Master's office, resting on the Equity Rule No. 371 (h) of
the late Supreme Court. The object of that rule was to enable
parties to bring important questions before the Court as
early as possible. It was for the curtailme!lt of expense· and
avoidance of protracted litigation. By the practice of this
Court, exceptions are argued to separate certificates of tho
Commissioner, JUst as in the late Supreme Court on the
Equity Side to certificates of the Master, and the orders
made on such exceptions are equivalent to decrees. Tho
,old Equity Rules have to a certain extent boon applied in
this Court to suits under the Civil Procedure Code, and are
recognised in the new rule of this Court made in 1872, to
be found at p. 38 of the Rul1:s of the High Court. The Civil
Procedure Code must here be considered in conjunction with
the rules and practice of this Court. According to those rules
and practice, this Court may split its decree, and there can
be in a suit as many decrees as there a.re separate certificates
of the Master on which the Court has passed orders. Ex-
perience has long since shown that separate certificates will
·not be granted on such light grounds, or so frequently in
the course of a cause, as to produce the iuconvonience and
delay suggested in the argument for the defendant. Rule
371 has worked quite in the opposite direction, and been
most conducive to the prevention of the waste of both . time
and money. That rule clearly contemplated that orders of de-
cretal character should be obtained between the decree of 1-e-
ference and the final decree on the Master's report. The order
now sought to be appealed against would be e. decreta.l order
made on the certificate of the Commissioner, for if that order
be not decreta.l matter, it is impossible to say what is. The
order also most materially affects the plaintiff's rights. There
(h) ". In _a.11 matt.era refe~ to him, the Master shall be at liberty, upon
t.he application_ of any ~y ltlterested, to make a separate report or reports
from time to !Jmc, as !'° hu~ shall seem expedient ; the coate of such separate
rcport.e to l.,o 1n the di~cret1011 of the Court."
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is nothing in Section 363 of the Civil Procedure Code exclud- 1875.

----
ing such an order, for it is a decree pro tanto. It cannot be HIRJl JIN ...'
said to be'' prior to a decree," for there ha.R already been a NA'RR.j.N v.
decree to take the account, and, moreover, the order is itself a l\lULJI,
decree. The two cases relied on by the defendant are not

applicable in the preeent instance, for neither of the orders
from which an appeal was sought in those cases was decretal
in its nature. In Tlte, Justices of Ike Peace of Calcutta v. Tlie
Oriental Gas Company, the Calcutta. High Court held that it
wu by its own rule limited to consider the mandamus as a
proceeding under the Civil Procedure Code. In Sonabhai v•
.Ahmeclbhai, the order sought to be appealed against was one
made in chambers for the production of books-a mere matter
of procedure, not a question as to the rights of the parties.
On the other hand, there is a case,~~ported at 2 Ind. Jur.
205, in which there was a partial decree, just as there is in
this case, and it was held to be appealable. We have
been referred to Act XXIII. of 1861. The only section
of that . Act which seems at a.II capable of application to
the present case is Section 38, which provides that in all
" miscellaneous proceedings " the procedure prescribed by
the Civil Procedure Code shall be followed as far as it ca1i
be. I do not consider that the proceedings with regard to
the Commissioner's certificate were " miscellaneous " within
the meaning of that section. They were proceedings in the
regular course of the suit, viz., in that stage of it when it was
in the Commissioner's office for the purpose of having the
acrount taken. We are of opinion that it would be highly
disadvantageom to suitors if an appeal did not lie in such a
case as the present, the appeal must, therefore, be allowed,
and will come on for argument on the merits in due course.
Costs of the preliminary point argued before us to-day a.re
reserved until the disposal of the appeal.
S.uo:&NT, J. :-1 agree that this order is appea.lable, and

ahould not have thought it necessa.ry to add anything to the
remarks of the Chief Justice, had it not been for the argu-
ment which the lea.rne:l Advocate-General based on my
a244-r
J
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138 BOKB.AY HIGH COURT RIPORTB.
- judgment in the case of 8onabhai v. Akmedbhai. At page 408

1875.
-HIB.Jt
-- Jnu.' I a.m reported as saying that "the effect of the rules made
"·
NA'BB,Uf under the 2nd letters Patent is that the Code of Procedure is
MUL.JI. again incorporated in the letters Patent." It is clear from
the context that t&e words "so far as the same is applicable"
have been inadvertently omitted. Having then regard to the
long-established practice of this Court, if Section 363 of the
Civil Procedure Code is to be applied, the word" decree" must
be held to include the decree of reference, in which case the
order of 19th December 1874, which is now sought to be ap-
pealed against, having been made after the decree of reference,
is not one " prior to decree," and being one which decidedly
affects tbe merits of the case is, therefore, appe&lable.
[APPELLATE CIVIL JURISDICTION.]
April 5. Special .Appeal No. 111 of 1874.
MAHA'BALAYA' BIN
MA1YA' and another.
P.A.R·} Plaintilrs
'JI'
and A
PP
ellants.
TrnAYA' BIN APPAYA'}

and two others. Defendants and Respondents.
Vndivid~ Hmau.family-.A.nuatral prvperty-Attadunfflt and aak of tlae

inureat qf one qf tJie co-par~r• in tJie u.ndi11ided eatate,-Partit~Pouu-
aion.
The purchaser at a court', sale of the right, title, and intereet of one of the
co-paroenere in the undivided estate, by his oertillcate, under Section 259 of the
Civil Procedure Code, can take no more than the intereet of euch co-parcener
in the property diapoaed of, &1 a member of the united family.
Coune pointod out u to the &10ertainment of what that intere1t is, and how
the tranaaction can be made good for the benefit of the purcbuer of a co-
parconer's interest in a particular pieoe of property, forming only a part. of the
common eatate.
Where, howevor, the purcbuer eot into ~ i o n and held it with auch
an accompanying right &1 the judgment-debtor could transfer to him:
Held that the purchuer wu in u a t.enant in oommon with the judgment.
debtor', co-paroener1, and that they were entitled to p<l111811ion in oommou
with him, and might enforce their right for aaharo of the enjoyment, or Cor a
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ilonAT moR COURT RIPOR1fl, • 13~
ddaition of the portione in which t!loCh party, in future, wu to ban a 10le 1875.
intereet. Suob OO•parcenel"8, however, are not entitled to eject the purchuer M ,
wholly from a ddned moiety of any particular portion of the joint property. ~.~ :~u-
P.uu1,1'YA'
Tms was 8 special appeal from the decision of A. I,. Spens,
District Judge of Kanara, affirming the decree of A. M.
TIJU.:~, Bnt
APP.HA'.
Cenwi, First Class Snbordinate J ndge of SinL

Mahabalaya and his brother R6.may6. brought this suit to
set aside the sale of certain land and other immoveable
property, made in execution of a.decree obtained by Timm§.
bin Ganpay& (defendant No. 3) against Tima.ya bin Apa.y,
(defendant No. I), and to recover possession. of a moiety of
the said property from the execution-purchaser, Sangan
Ganpay& (defendant No. 2). The plaintiff stated that the
father of Timaya (defendant No. 1) and his own father
Parmay& were foll brothers ; that the property in dispute
was the joint property of the whole family ; that Simgan (de-
fendant No. 2), as purchaser of the right, title, and interest
of Timaya (defendant No. 1), could only claim the share of
the judgment-debtor, and that the debt was not contracted
for any common family necessity or benefit. Timaya did
not appear. The second and third defendants answered
that the debt for which the property in dispute wss sold in
satisfaction of a decree against Timaya was. contracted by
him as manager, and for the common use a,nd benefit of
the joint fmmly, and that, therefore, the sale was binding on
the plaintiffs. Both the lower courts held the debt to have
been contracted for the benefit of the joint family, and threw
out the plaintiff's claim.
The special appeal was argued before WEST and PINHEY,
JJ.
Dkirajlal Matkuradaa (Government Pleader) for the
special appellants.
Ganpatrav Bhad.M and SMmrav Vitllal for the special
respondents.
WS8'1', J. :-We are of opinion that the third defendant in
this case by a certificate, under Section 259, Civil Procedure
Code, conveying to him the right, title, and interest of
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rr
140 • BODAY HIGH COUilT KIPOBTS~
1875. Timayn, could talce no more than the interest 0£ Timay,

- --'---
MARA'BALA· in the property, thus disposed of, as a member of a united
YA! BIN .
PARKA'r A ' family. What that interest was, and how the tranR&Ction
v.
'rlllAYA' BlN
could be made good, if at all, for the benefit of the purchaser
APP4TA'. of a co-parcener's interest in a particular piece of land, form-
ing but a part of the common property, would have to be
disposed of, if he were seeking possession, according to the
principles laid down in the oase of Pandurang v. Blu1skar
(a). In the present case, however, the purchaser has got
into possession, which he now holds with such an accom-
panying right as the judgment-debtor, Timaya, could have
transferred to him. He is in, therefore, as a tenant in
common with Timaya's co-parceners, the plaintiffs. They
are entitled -to possession in common with the purchaser,
and if this is refused, they may enforce their right by a suit
for a share of the enjoyment or for a definition in spede of
the portions in which each party is to have for the future a
solo interest; but they are not entitled to eject the pnrchaser
wholly from a defined moiety of the land. It may turn out
on inquiry that, on an equitable adjustment of the several
rights of the members of the joint family and on a mar-
shalling of the elements of its estate, eo as to give effect.
so far as may be, to the execution sale of land as included in
Timaya's share, the whole of the land in dispute or more
than a moiety of it may be left in' the hands of the defend-
ants. In the meantime, we cannot say that the plaintiffs
are entitled to separate exclusive possession of any particular
portion. The District Judge has rejected their claim alto-
gether. This order we modify so as to declare the plaintiffs
entitled to possession along with the defendants as tenants
in common, but no more. Each party to bear his own costs
throughout.
(a) 11 Dom . H. C. Rep. 72,
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BODAY HIGH COURT RIPORTI. 141
1875.
[APPELLATE CIVIL JURISDICTION.] April 5.
NILAvA' KOY RACHAPPA' ••• ••• Plaintiff and .Appellant.

RuoRAYA' BIN RAcHAP- }
PA' and another. Defendants and Respondents.
Rtgiatration Act XX. of 1866, Section 17-.A.grument relating to ci
family arrang~nt.
Where a document waa in the nature of a family arrangement, and drawn
up mainly for the purpose of ·aett.ling a widow's maintenance, though 10me
right in immoveable property was created or declared by such instrument,
and it was proved that tho actual value of the whole of the immoveable pro-
perty mentioned in the document exceeded Ra. 100, but there WIIB no evi-
dence to show that the value of the widow's right exceeded that aum :
Held that for the purpose of registration under Act XX. of 1866, the
actual value of the whole immoveable property named in the document muat
rms
not be taken to be the value of the right IIO created or declarod.
was a special appeal from the decision of S. Tagore,
Assistant Judge of Belgaum in charge of Kala.dgi,
reversing the decree of the Subordinate Judge of Baga.lkot.
Nilava sued to obtain possession of a field and arrears of
maintenance, according to the terms of two agreements
(Nos. 3 and 4), executed to her respectively by her adopted
son, Rudraya, and his natural father Gurubasayn. She
chiefly relied upon Exhibit No. 3. The defendants denied
the execution of the two documents, and objected to their
being admitted in evidence, under Section 49 of Act XX. of
1866, as they were not registered as required by Section 17
of that Act. The following ik an English translation of
Exhibit No. 3 :-
"To
Nila.va kom Rachappa.
"I, Rudraya bin Ra.chappa, * *
hereby *
execute this agreement to you, my adoptive mother. The
following arrangements arc made for your maintenance.
" I will supply you every year with three gonis jawari
of 10 maunds ('16 seers per maund) old measure for your
subsistence.
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142 DOllBAT BIOH COUKT RIPOBT8.
1876. " You should dwell in the house in which you are now
N1L.t.u' 1t~11 living for the term of your life. I will not deprive you o(
RAc8:.PP.t. the ho•se. If we both like to live together, we shall do so.,
RtJI>liY.t.'
BIN or elee you may occupy 1·t a Ione as Iong as you 1·1ve.
RACBAPPA'. "I have made over to you another house which stands to
the south of the above honse for the expenses of clothing, &c.
"The following ornaments are made over to you for
wearing. • * * •
" I will pay every year 4 rupees for holiday expenses.
" Thus the arrangements are made. I will make over to
you the field of my adoptive father, Rachappa, which is
situated at Mudapur, for your maintenance. If I fail to act
up as above, I shall have no claim to it during your life
time.
"Dated 14th July 1870."
The court of irst instance held that e:x;hibita 3 and 4 did'
not require to be registered, and, finding them proved,
decreed the plaintiff'• claim. In appeal, the question of.
registration was again raised with regard to Exhibit No. 3,
and the ABBistant Judge, deciding it affirmatively, threw
out the plaintiff's claim in reversal of the first court's decree.
He, however, held both the agreementa {Nos. 3 and 4)
proved, and expressed his opinion that the plaintiff's claim
was correct and in accordance with the terms of Exhibit
No.3.
The special appeal was argued before KBKBA.LL and
NA'NA'Bu.&'1 llimD.&'s, JJ.
Dh.irajlal Matkuradas {Government Pleader) for the ap-
pellant :-Exhibit No. 3 is an agreement within the mean-
ing of Act. XX. of 1866, Section 18, Clause 7, and requires no
registration. [NA'NA'BBA~I HARm.&'s, J., referred to WaBUdev
Moruhvar v. Bdma] {a.).
Gh.anasham Nil,kant Nadkarni, contra, cited Bhyrub
Chunder Da88 v. Kake Oh.un<kr Clmckerbutty (b) and Nil-
madhab Sing v. Fatteh Chand (c).
(a) 11 Bom. H. C. Bep. 149. (b) 16 Cale. W, R. 66. Civ. RuL
(cJ 3 Beng. L, B., 310.
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'BOllllAy mou COURT REPORTS. 143
K1nu ,., J. :--This is a suit brought by a widow against __187_5_ ·_

her adopted son and the natural father of that adopted son N 11..t.VA.' ltOK
RAOJUPP.t.'
IO obtain possession of a field of her late husband's, which v.
RtJDU\'.t. 1
the father of the adopted son bad received possession of BIN
from her, promising, in consideration of such possession' lu.CJUPPA.',
either to provide her with maintenance, or, in default of
mch provision~ io restore the field to her. She also claimed
amars of maintenance, and her suit was based on two docu-
ments, exhibits 3 and 4, one passed by the adopted son, de-
fendant No. 1, and the other by his father, defe~dant No. 2·
These two defendants denied every important allegation in
the plaint, imputed adultery to the plaintiff, and contended
that, as the documents above-mentioned had not been regis-
tered, they were inadmissible in evidence. The Subordinate
Judge found that the documents did not require registration.
and that the plaintiff completely established her case. In
Regular Appeal, the Assistant Judge held that document No.
3 required registration, and threw out the claim on that
ground, though he went on to find that the plaintiff had, if
document No. 3 were admissible, a good claim against both
the defendants. The question we have to determine is
whether the Assistant Judge was right in rejecting docu-
ment No. 3. He has grounded his decision on this point on
the fact that the aggregate value of the two houses and the
land comprised therein was shown by evidence to exceed
Rs. 100, but we do not think that this is the proper way to
test the necessity for registration. The document in question
"«as in the nature of a memorandum of a family arrangement,
and was drawn up mainly, as was No. 4, for the purpose of
settling the widow's maintenance ; and although it must be
admitted that some right in immoveable property was created
or declared by those instruments, it would be going too far
&o say that the actual value of the whole immoveable pro-
perty named must be taken to be the value of the right so
created or declared. There is no evidence to show that
the value of the right t,o the immoveable property comprised
in document, Exhibit 3, exceeded Rs. 100. We must,
therefore, hold with the Subordinate Judge that it was ad-
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•
144 BOlfBAY HIGH COURT REl'OBTS.
1875. missible in evidence, although not registered. We come to

~1uvA'xo11 the conclusion with the less hesitation as we feel satisfied of
&c~r•' the justice of the plaintiff's claim. We, therefore, reverse
• RUDR4T4' the Assistant Judge's decree, and restore that of the Sub-
BI.11'
lbcB4l'u'. ordinate Juage with costs on the respondents.

April,.8. Special A.ppeal No. 81 of 1874.
TRIMBAK RA'Nu •.... ... Plaintiff and AppeUant .•••••
NA'NA' BHAVA1NI
ano ther.
and} Defendants and Respondents.
Regulation X Vil. of 1827, S«tion 7, Clauau 1 a.nd 2-Bomha.y Act I.
of 1865-Ri<;ht of occupation-Miras land-Burden of proof.
On the 28th August 1857, the plaintiff pueed a 1:abuldya.t to GoTernment,
and took po1186811ion of certain Miras land, abandoned by the Mircisdctr for four
or five years previous to that date. The plaintiff' continued in p091!easian of
hie land, and paid the OOTemment IMlll688ment from 1864 till 1872. In an
action brought by the plaintiff to recoTer posseB11ion of the land, be alleged in
the plaint tho.t be had taken the defendants u partners in the oultivatioa of
the land, and had boon diep098611118d by them. Both the lower court. rejected ·
the claim. The Lower Appellate Court baaed ite decision on the ground that
ae the plaintiff failed to prove the fact of bis alleged partnership with the de-
fendants be could not suce&d, notwithstanding that court found in the plain-
tiff"a favour t.be other Coote atated abon :
Held in special appeal that M the euit WU one to establish title and recover
poueYion, the Judge should, on the facta found, and haTing regard to Regula-
tion XVII. of 1827, Section 7, clauaee 1 and 2, and Bombay Act I. of 1865,
have called upon the dofendanta to prove their claim to hold po.e11&ion aa
againat the plaintilf'a right of occnpation.
THIS was a special appeal from the decision of A. Bosan-
quet, District Judge of Ahmednagar, affirming the decree
of Purushotam Shidheshwar Binivale, First Class Subordinate
J ndge at the same place.
Trimbak brought this suit to recover possession of a
field (survey No. 59), and alleged that the field belonged to
him ; that about five ye<1.rs before the date of the suit he took
the defendants into partnership with him and cultivated the
field ; that afterwards, when he proceeded to cultivate it
alone, the defendants obstructed him in doing so, and dis-
possessed him- of the land. The defence chiefly was that
the field in dispute was the mfras land of one Khandu Go•
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•
BOimAY BIOB comrr UPOJlT9.
nnda, from whom the defendant Nina Bhavani took it 1875.

for cultivation for a term of nine years, on payment of
----
the TllIXBAI.
RA'so
Government assessment. The defendants denied the part- 17.
•
N,:sA'
nership alleged by the plaintiff. The first co~ rejected BBAVA'lfL
the claim on the ground that the defendants did not get the
field from the plaintiff. In appeal, the Judge affirmed that
decision, on the ground that the plaintiff's evidence failed
to prove his case, because he did 'llot prove the alleged part-
nership. The following extract from his judgment will
show his reasons :-
.. The evidence shows that this land was the mira• of Khan
du valad Govinda. Khandu (No. 47) admits that the land
was waste five or seven years, and that tho plaintiff then
took it from Government. The plaintiff took it from the
Government by a kabulayat (No. 28), dated the 28th
August 1857, The plaintiff's receipt book (No. 29) shows
that he paid the assessment on the field from 1864 till 1872.
The plaintiff's witnesses say that they saw the plaintiff alone
cultivatingthe field for tenor fifteen years, and that afterwards
the plaintiff and the defE_lndant Nana cultivated it together;
but their evidence does not clearly show whether the plaintiff
and the defendant Nana jointly cultivated the whole field,
or wh~ther they each cultivated half. It is remarkable that
the plaintiff says in his plaint that he took the defendants into
partnership four or five years ago. Tho plaint ought to have
been returned to him to specify the exact time. There is
no direct evidence to prove the alleged partnership, and I can-
not infer it from the circumstances above mentioned. • •
* * * * The plaintiff's evidence fails to prove his case.
It is, therefore, needless to review the evidence for the
defence.''
The objections urged in special appeal on behalf of the
plaintiff' were these :-(I.) The lower court was wrong in
holding that the appellant had not shown a better title,
although he proved abandonment of tho field by the llfin,a-
d&r and his occupation under Government. (IJ.) The imit
waa brought on the ground that the appellant was illl'gully
B 244,-tt
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•
146 BOIIBAT HIGH COURT RIPORTS.
~ - ·_ dispossessed, and not on the ground of partnership. The

TRUIBAK lower court, therefore, ought not to have gone into the
RA ' NU
v. question of partnership, but ought to have determined the
• NA'NA' appellant's title.
BBAVA'NI•
The ap~l was argued before KEMBALL and NA1 NA 1BHA1 I

Il-ARIDA18, JJ.
Bhairavn<Wt Mangesh, for the appellant, referred to Regu-

lation XVII. of 1827, Section 7, Clauses I and 2, and Bom-
bay Act I. of 1865, and contended that the facts found by
the District Court sufficiently proved the plaintiff's right to
occupation, and that the burden lay on the defendants to
abow their title to possession as against that right.
Sltamr&v Vithal for the respondents.
KEIIBALL, J. :-It appears to us that the District Judge
has proceeded on a wrong ground in rejecting the plaintiff's
claim by reason of his having failed to prove that he had
taken the defendants into partnership. The Judge has
found in distinct terms that the land was the mira.s land of
one Khandu, that this Khandu had neglected to cultivate it
for six or seven years prior to the 28th August 1857, when tlte
plaintiff passed a kabulayat to Government and took posses-
sion of the land, and that the plaintiff had, at least from
1864 to 1872, paid assessment to Government (Khandn him-
self saying that the plaintiff had been in occupation from
1857 up to the present time), but he went on to hold that,
because the plaintiff had alleged he let the defendants in as
partners four or five years ago, and failed to prove that fact,
therefore he could not succeed, remarking: "The plaintiff's
evidence fails to prove his case. It is, therefore, needless
to review the evidence for the defence." But as this was a
suit to establish title and recover possession, the Judge
should, on the facts found (having regard to Regulation
XVII. of 1827, Section 7, Clauses J and 2, and Bombay Act
I. of 1865), have called upon the defendants to establish their
right to hold possession as against the plaintiff's right of
occupation. It may be that the defendants can show a
collntervailing right, but this is o. point which the Judge has
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BOlfBAY HIGH COURT REPORTS. 147
failed to inquire into and determine. We are unable to find 1875.
-----
facts, and we must, therefore, in reversing the Judge's decree, TRillBil
RA NU 1
return the case for a fresh decision on the real merits. Costs
to follow final judgment.
"·
NA'NA.'
BHAVA'Nf.
(APPELLATE CRIMINAL JURISDICTION.]
REo. v. GuLA'.&l AnA's. • April 15.
TAe Code of Criminal Proadure, Stdio1111 273 and 453-A.ppwl-A.911rtgald

aenUnce.
For purpoae8 of appeal the whole punishment awarded to one penon on
one trial for several instances of the same offence is to be regarded as oue
sentence.
&mble, that where a person is triod at the same time for several instances
of the same offence, it is not necessary that more than a single sentence
should be passed.
But if a separate sentence be passed on each head, lleld that an appeal
brings the aggregate of those sentences, as together constituting the punish-
ment awarded in a single trial, within the jurisdiction of the Appellate
Court.
THIS was a reference, under Section 296 of the Code of Cri-
minal Procedure, by H. M. Birdwood, Session Judge of
Surat. The accused Gulam Ahas was charged under Section
381 of the Indian Penal Codo with having committed theft in
bis master's house on two occasions, and being convicted by
S. P. Pandit, Magistrate F.C., he was sentenced for the first
offence to suffer two years' rigorous imprisonment and to
pay a fine of Rs. 50, or in default to suffer three months
further rigorous imprisonment ; and for the second offenoe
was sentenced to receive sixty lashes with a cat-o'-nine tails.
On appeal, the Session Judge, on a. review of the evidence,
reversed the sentence for the first offence, but was of opinion
that he had no jurisdiction to deal with the sentence pa.si;ed
for the second. He, therefore, reported tho proceedings for
the orders of the High Court.
The reference was heard by WEST and P1NHEY, JJ.
No one appeared either on behalf of the accused person or
the Crown.
Pn CuRIAM :-The prisoner Gulam Ahas was tried at the
ll&Ille time for two instances of the same offence. For such
a trial provision is made by Section 453 of the Code of Cri •
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148 •
BO.IIBAY HIGD COURT REPORTS.
- - - minal Procedure. It does not seem absolutely necessary that

- -1875.
REG. in such a case there should be more than a single sentence,
tl.
Guu'M but if a separate sentence be passed on each head, an appeal
AB 4 ' 11 • brings the aggregate of those separate sentences as together
constituting the pnnishment awarded in a single trial, within
the jurisdiction of the conrt which is competent to hear an
• appea.l. In other words, the whole punishment awarded to
one person on one trial is to be regarded for the purposes of
appeal as one sentence. The High Court could not properly
on review deal with the evidence. It, therefore, directs that
the Session Judge dispose of the case himself.
Ordel' accO'l'dingly.
April 19. Special Appeal No. 280 of 1874.

NA'RAYA'NBA'nA' JIDA' BHOLKAR.Plaint{ff and Appellant.
PA1NDURANO RA'McHANDRA} Defendants and Respon-

DA' BHOLKAR and another dents.
Suit for partition-Omiuion of a fll()rlgaged jkfd f r<Y111, claim-Su I,«.
quent 111it-Oivil Procedure Code, Section 7-Limilalio,1,-Separation in livi11g
and ,eparation by partition.
In 1861 the plaintiff brought a general partition 1Uit (No. 1363) to recover
his share of the family property in the ~•ion of the ~t defendant
and did not include in that claim a field then in the po88e88ion of a mort-
gngeo. The field waa aubsoquently redeemed by the first defendant, who
ngain mortgaged it to the second dofendant. The plaintiff then filed the
present suit to recover hie share in the field. The first court allowed the
plaintiff'• claim, bnt the District Judge in appeal threw it out, on the ground
that it waa barred both by Section 7 of the Civil Procedure Code and by
the Law of Limitation. The Judge baaed the latter finding on certain
aU~ations made by the plaintiff in Suit No. 1363, and in another euit
brought by him against the first defendant and the then mortgagee of
the field, from which allegatioDB the Judge inferred a separation between
the plaintiff and the first defendant :
Held in apecial appeal that the claim waa not barred by Section 7 of the
Civil Procedure Code, because the mortgaged field waa not available for an
actual partition at the time of the former auit, No. 1363 of 1861. Held a1ao
that the suit waa not bl\rre<l by limitation, because the po88eesion of the
first defendant,or of bis mortgagee, was not adveree to plaintiff, the alleged
aeparation being only a separation in living, 1111 distinguished from a separa·
tiou by partition.
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BOMBAY HIGH COURT Rll'ORTS, 149
The true queshon for conaideration in CA80II of this kind ia whether the 1875.
fermer suit 1.-as one in which the plaintiff' might have recovered precisely
NA'RA'YA!f
that which he seek.a to recover in the aecond,and where the former suit ia oae BA' BA'Jl
for III a..-tual division of property, the plaintiff' ia not bound in it to aak fof a v.
dedv.moo defining bill right in property not then capable of division. PA'!IDURAIIQ
RA MCH.lM·
&l.l:ria,\,aa WiUhal "· 1/ariallankra (8 Bom. H. C. Rep. 64 A.C.J.)followed. DRA,
THIS was a special appeal from the decision of R. W.

Hunter, District Judgo of Ratn6.giri, in .Appeals Nos. 302 '
and 331 of 1873 from the Subordinate Judge of Malwan.
The special appeal was argued before KEllBAU. and
N1u'nuA.'1 HABmA'8, JJ.
Slmntciram Narayan for the appellant.
Gha,iaslu.im Nilkant and Sliamroav Witl,al contm.
The facts of the case and the argument of the pleaders on
<'it.her side fully appear from the following jndgment deliv-
ered by
KtlrBALL, J. :-The thiMn, a half share of which the
plaintiff now seeks to recover, was alleged to be joint ances-
tral property, mortgaged by Rimchandra, the father of the
first defendant, for Rs. 200, and subsequently redeemed by
the first defendant, after his father's death, on the 30th April
1871. The plaintiff, as a half-sharer with Pandurang Ram-
cliandra., the first defendant, thereafter applied to him for
\l'>~ion of his half share, offering to pay half the money
advanced, to Ramchandra on the mortgage. This applica-
tion was refused, and accordingly the present action was
brought against Pandurang and the second defendant (who
holds under Pindurang) to recover the said half share.
Pandurang pleaded, 1st, that the plaintiff had no share in
this thik,fo a.t all, and that, even in the ancestral estate, he
had only one-fourth and not half share; 2nd, that the thiklin
in question was purchased by his father and another, after his
n.\her and the plaintiff's father had separated, and that his
latJwir mortgaged it; 3rd, that he succeeded by inheritance to
the entire thikan, which he redeemed for Rs. 825, the greater
JIC)rlion of which was advanced by the second defendant upon
the'&lCurity of the thikan, which is now hold in mortgage by
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•
•
150 JIOJIBAY HIGH COURT REPORTS.
__1s_,s_._ him; and4tb,that the plaintiff's statement, that they were still
NA'RA'YAN in union, was false. The second defendant, Sita.rum Kamat,
BA'BA.'JI
"· generally denied the plaintiff's right, and pleaded that he
r~::!:~ could not be deprived of his security without the mortgage
DRA., money being re-paid. The Subordinate Judge having framed
fitting issues, held on the evidence, 1st, that the plaintiff was
owner of a half share in the thikan in question ; 2nd, that he
was entitled to redeem that ha.If on payment of Rs. 100; and
3rd, that the defendant Pnndurang had failed to establish his
competency to mortgage the plaintiff's share, and passed a
decree in the plaintiff's favour. Both the defendants then
• appealed to the District Judge on the following grounds:-
That the claim was time-barred ; that the thikan was acquired
by Pandurang's father after separation; that the thik<in was
the sole property of Pandurang; that, oven if the plaintiff
had a right by union, he was bound to pay his share of debts
before recovering his half share of the thikan, and that the
defendant Sita.ram was entitled to be paid the whole of the
money advanced by him before he could be dispossessed of
any portion. The District Judge proceeded at the outset to
consider whether the claim was barred, 1st, by Section 7 of
Act VIII. of 1859, and 2nd, by the law of limitation ; and
finding on these two issues against the plaintiff, he reversed
the decree of the Subordinate Judge, and rejected the claim,
Both the courts below, have found that the plaintiff and
the first defendant are members of the same family, and the
District Judge observes that-"The genealogy (23), which is
admitted by all tho parties for the purposes of this suit, shows
them to be second cousins, having one great-grandfather in
common." But before we proceed to consider the grounds
on which the District Judge has refused to entertain the
plaintiff's claim, we think it necessary to sketch briefly the
course which the litigation between these two cousins has
taken. It appears that, on the 27th April 1861, the plaintiff
Narayan Babaji Dabholkar brought four separate suits
against the first defendant, Pandurang,numbered respectively
] 357, 1363, 1364', and 1375. One of these, 1363, was against
Pandurang alone, in respect of such of the joint family pro-
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•
•
1IOJIBAY HIGH COURT REPORTS. 151
perty as was then in his actual possession, to enforce part,- 1875.
tion and to obtain delivery to Narayan of his share in such NA'RA'YAN
property, and the remainder were against Pandurang, cou- BA'!.A'Jt
pied with ·others, to enforce a partition and to recover posses- PA'N,DURANo
• of sueh portions
s1on • of t he JOmt
• • property as were m . t he RA DRA.
MCHAN·
~nds of such other persons.

In the general partition suit, as it may be styled, 1363,
Narayan obtained the decree sought, which was apparently
not appealed against ; but his efforts in the others were
attended with varied success.
In 1364, Narayan sued for partition and possession of a
share in a part.icular field in the possession of Pandura.ng and •
other sharers. Pandurang alone defended the suit. He
alleged tha.t his father had acquired the field after separation
and the plaintiff had no share. However, the Munsif decreed
for the plaintiff, and this decree was upheld in the Senior
Assistant Judge's Court and again in Special Appeal 710 of
1865, decided on the 16th March 1866.
In 1375, Narayan sued for partition and possession of a
share of a thikan as 11gainst Pandurang and the heirs of the
purchaser from him (Bapu Kamble). Pandura.ng denied
that the thik,fo was joint family property and that the plaintiff
had ever any interest in it. Both the Mnnsifand the Joint
Judge held that the land in dispute was proved to have been
the joint property of Narayan and of Pandura.ng, and that
Narayan was entitled to his share subject to the mortgage
made by Pandura.ng's father, R:imchandra., and the Joint
Judge's decree was affirmed in Special Appeal 219 of 1866 on
the 10th January 1868, vido 5 Bom. H. C. R. A.C.J. 30 ; and
we now come to the fourth suit;, 1357, which it will be
necessaryto give somewhat more in detail. It rela.tes to the
dentical tMkan, the subject of the present suit. In that suit
Narayan sought as against Pandurang Ramcbandra. and
B.mchandra Kamat Bhangle to compel partition and to
recover possession of half of this thik&n, which was in
Bhang!e's possession, as mortgagee from Pandura.ng's
father. The mortgage which Naraya_n spoke of was one effect-
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•
lq2 BOIIBU HmR COURT HPORTS.
1875. ed in 1840. The defendants, however, pot in two further

N.t.'RA'Y,\!( mortgages of 1844 and 1850, saying that they had supersed-
BA'BA'Jl
v. ed the first mortgage of 1840. The plaintiff's pleader wu.s
PA'NDURANO questioned by the Munsif 88 to the mortgages of 1844 ana
lu'MCBAN·
DR.A, I 1850, and he refused to acknowledge them; and a.s the
defendants denied the existence of the mortgage of 1840,
and those of 1844 and 1850 only bound Pandurang, the
Monsif decreed possession to the plaintiff of his share, free
of any encumbrance. In Regular Appeal, the District
Court of Ra.tnagiri reversed the Munsif's decree, on the
ground that Nar6.yan had failed to prove his position in the
family, but this ruling again was reversed in special appeal,
and the case remanded to be determined on on its merits·
On remand, the District Court held that Narayan could
not soe to redeem only a. portion of the mortgaged property
the mortgagee, Bhangle, being entitled to have the whole
redeemed. Then Narayan brought a suit, 341 of 1871,
against Pandurang and Bhanglo to redeem the whole, but
88 it then appeared that in the short interval, Pandurang
had redeemed the property from Bhangle, Naraya.n's suit
was thrown out. Pa.ndura.ng, howe\'er, only redeemed the
property ·to again mortgage it to Sita.ram Kamat. The
present action, therefore, was brought against Pandurang
and SiU.ram Kamat to recover Narnyan's share in the said
th-il.:an.
Having thus given an outline of the previous suits between
these two parties, it will be sufficient to state shortly the
reasons, so far as we understand them, which have impelled
the Judge, without going into the merits, to hold that the
plaintiff's claim is now barred. He considered first, that
the subject-matter of the present claim eho~ld have been
included in the general partition suit Ia63 of 1861 and,
therefore, that Section 7 of Act VIII. of 1859 disallowed the
present suit, and second, that 88 Narayan admitt€d in his
plaint in suit 1363 of 1861 " that he had been separated
from the first def~ndant no lees than 28 years before,'' and
also that as hie pleader had in suit 1357 of 1861 repudiated
the mortgage-bonds of 1844 and 1850, therefore his claim
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B01fBA.Y HIGH COURT REPORTS. 153
was, moreover, time-barred; and ho further held that the 1875.

ruling in 8 Bom. H. c. R. 64 A. c. J. could avail Narayan NARA'YAY
nothing" because, from his own plea in Original Suit 1863 of BA'u·J1
"·
1861, it is evident that the possession ofthe first defendant's PA'NouR.lNo
. ts t d
mortgagees un der mstrumen execu e wwr e p amt e
_.t,._ th l . iff' RA'NCHAlf
Du.
separation from the first defendant, should have been treat-
ed by the plaintiff, when he brought that suit, as a possession
under the first defendant, but adverse to himself." But
are these preliminary objections to the maintenanco of tho
present action well founded ? To take first the question of
limitation-the J ridge rests hie decision on certain admissions
made by the plaintiff and his pleader respectively. With.
regard to the allegation contained in the plaint in Original
Suit 1363 of 1861, we think that the Judge has placed an
interpretation upon it, which it does not necessarily bear•
It appears to us that the Judge has confounded separation
in living with separation by partition of property. The one
does not of necessity involve the other, and it may well be
that all the plaintiff intended to say was that he had com-
menced to live apart from the defendant no less than 28
years before, and that admitted fact would not i\1. itself tend
to make the possession, by any one member of the family, or
by an encumbrancer under an encumbrance created by the
manager for family purposes, adverse to any one member;
and as regards the reply of. the plaintiff's pleader in Original
Suit 1357 to the effect that he did not admit the mortgages
of 1844 and 1850, it is sufficjent to say that that answer,
putting upon it a construction most unfavourable to the
plaintiff, is not conclusive proof of the accrual to the plain-
tiff of the puse of action in 1844. It may be that the
subsequent mottgages, though made without the know-
ledge and consent of the plaintiff, were made under circum-
stances which rendered them binding on all the members
of the family, or that the original charge continued notwith-
standing further advances were made on the same security.
It might be a question whether the plaintiff was responsible,
in respect of his share of the land, for the subsequent loans,
but it would uot necessarily follow that the possession of the
B 244,-t
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154 BOIIBAT BIOB COURT UPOBTS.
1875. encumbrancer commenced and continued to be adverse t.o

N.,.-u'Tu . him from the date of such loans. On the whole, we are of
B1.'JU.'n
"· opinion that the facts set forth by the Judge were not such
P.:'1::::;.
0 &a to justify his determining summarily that the maintenance
BRA. of the plaintiff's claim was barred by the law of limitation.
We will, therefore, proceed to discuss 'the other question,
whether the provisions of Section 7 of the Civil Procedure
Code are a ba.r to the institution of the present suit. The
Judge held that the plaintiff was bound to have included
this claim in hi~ suit 1363, and he decided, when this Court's
judgment in Special Appeal 419 of 1870 (vide 8 Bom.
H. C. R. 64 A. C. J.) was quoted, that it availed him no-
thing, because, by reason of the admission~ above considered,
he should have t~eated the possession of the particular thika:n
now in dispute as nuder the defendant Pandurang, but
· '' ad1'81'1e to himself!' We have already decided that the
enoumbrancer'e possession did not necessarily become adverse
to the plaintiff in 1844,, so that the reason for not applying the
ruling in the 8th Volume disappears. But it is argued for
the respondents, in opposition to that judgment, that aa
the cause·oJ action was the right, which the plaintiff posse&1-
ed as a member of the joint family, to demand a partition,
he was bound, by Section 7 of the Civil Procedure Code, to
include in one suit all the joint property in respect of which
he had' a right to, and desired a share and that it was not
competent to him in another suit, filed either on the same
day or at any subsequent period, to ask for a division of any
property omitted from the irst : and in support of the con-
tention that the cause of action was the same, our attention
baa been drawn to the ruling of a Division J}cnch of this
Court in S. A. No. 219 of 1866 in 5 Botn. H. C. R. SO
(noted above when speaking of Original Suit 1375). But
this jndgment cuts both ways as far as it affects the re•
apondent's case, though, indeed, we are not inclined to attach
much weight to it. The fact of the plaintiff having but one
ea.use of action appears to have been accepted without much
consideration, and &8SWI1ing the fact ourselves for a moment
we certainly cannot at all assent to the proposition which
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BOIIBAT HIGH COURT 8SPORT8. 155
follows. On the other hand, we think the judgment in the 1875.
8t.h Volume strictly right in principle. The true question N•'u'Yu
for consideration in cases of this kind appears to us to be 8 • ~'n
whether the former suit was one in which the plaintiff might PA'!mn.uo
RA'J1Cllilf.
have recovered precisely that which he seeks to recover in »u.
the second suit, and in order to apply that test to the present
case, it is necessary to bear in mind the two-fold application
of the word " partition." . There may be a division of right
in joint property, and there may be a division of the pro-
perty itself, i.e., by metes and bounds. Very probably this
distinction may have been in the mind of the plaintiff, at
least as regards those portions of the family property
in the hands of encumbrancers, when he brought his four
1uits simultaneously. However that m"y be, it is abun-
dantly clear that the plaintiff, in his suit 1863, could not have
recovered precisely that which he now seeks to recover, for
the reason that, in that suit, he songht a division of pro-
perty, whereas this particular th1'.kan, being then in the ·
possession of a mortgagee, was not available for an actual
partition. It has been pressed upon us that the plaintiff
might have asked for '' a division of right'' in respeet of this
•
property in the former suit 1363, but that is not the ques-
tion. He sought for a division of property as against Pandu-
rang, and, in respect of this property, he had then no such
cause of action against him. Section 1 of the Civil Pro-
cedure Code did not render it obligatory upon the plaintiff
either to include this division of right in his suit for division
of property or to abandon for the future a.II hope of estab-
lishing it by an action ; and on this point we would refer
to a judgment of the Madras ,High Court, in the case of
Pa.ttaravy M'udali v . .Audimula Mudali (a), which discusses
in connection with it the meaning of the words "cause of
action."
Differing from the District Judge on the two preliminary
objections presented to him, the result is that the case must
go back to be heard and determined on the merits. A.a the
(&) 5 Mad. H. C. Rep. 419•
•
Digitized by Google
156 IIOKBAY HIGH COURT !!EPOltTS.
1875. J d . . . .
- - - u ge appears to think that the plamtiff 1s to blame for the
NA'RA'Y.ur
BA'BA'JI comp}"1cations wh"1ch bave a.nsen,
. we must ob serve t hat, 1n
•
PA'N;traAlfo our view, the plaintiff has done all that he could be expected
RA'M· to do to obtain his right, and where he has been unsuccess-
OHAN»RA. f .
ul, his case, whatever may be the merits of his claim, is no\
undeserving of sympathy.
We reverse the decree of the District Conrt, and remand
the case in order that the appeal from the decree of the Sub..:
ordinat.e Judge may be heard and disposed of on its merits.
Costs to follow final judgment. '
[ APPELLATE CIVIL JURISDICTION. ]

March 21.
Regular .Appeal No. 27 of 1873.
MIR AJH?DDI~ KHA•N, heirl{Plaint-fff) .Appellant.
of FA TMA BEGAM •••••• J .
ZI.A'•UNt·hNISSA' BEGAM and} (Defendant) Respondent ..
ano er.
Santt1011-Act X YI 11. of 1848- Sl.afJer!I-Act V. of 1843;.
The permission of Government in 1858 to the Agent for the Governor or
Bombay at Surat to pay certain money, of the widow of the late Naw,b
of Surat to whomeoever a certificate of heinihip to her might be granted by
the civil court ii not a sufficient authority under Act XVIII. of IMS for
the institution against her granddaughter11 of a general civil 1uit under Re.
gulation IV. of 1827 nr Act VIII. of 1859. Nor doea permiuiongiven in 1.871
to institute a auit authorise the continuation of a auit instituted in 1869.
The effect of Act V. of 1843 ia to prevent the enforcemen~of any right..
which would, if that Act had not been paued, have ariaen out of the etatua
of alavery; and a Buit, brought by the heir of the maater of a alave-girJ.
emancipated by and married to auch muter, in hie lifetime, to recover.
u auch heir, her property in the hands of persona descended from her, ie.
one the cognizance of which ie barred by Section 2 of the Act.
T HIS wM an appeal from the decision of W. H. Newnham,

Judge of the District of Surat.
The original plaintiff, Fatma Begam, who is now dead, and
whom Mir Ajmuddin KMn represents in this appeal, sued
the defendants to recover certain property, moveable and im-
moveable, which belonged to Amir-un-nissa Bega.m, wife of
Afzuluddin Khan, the last Na.wab of Surat, alleging that this.
•
•
Digitized by Google
l!OIIBAY HIGH COURT REPORTS. 157
I
property was a.warded to Amir-nn-nissa Begam by the Agent 1875.
- -
for His Excellency the Governor, but since her death, on M1R.AJll1JD-
--
Dll'I KHA'N
November 10, 1857, had been detained by the defendants;
whereas Amir-un-nissa having been originally a slave-girl ZIA'·U1'•
"·
NlalA'.
purchased by the Nawab, the property went a.t her death, not
to the defendants, her grand-daughters, but to the plaintiff,
Fatma Begam, as heir to her brother, the late Bakshi Mir
Mohinuddin Khan, the heir of the said Amir-nn-nissa.
The defendants contended, inter alia, that the suit was
barred by Acts V. of 1843 and XVIII. of 1848, and that they,
and not the plaintiff or her brother, were the legal heirs of
A mir-un-nissa.
The District Judge rejected the plaintiff's claim with costs,
on the grounds that the plea as to Amir-un-nissa's alleged
state of slavery was inadmissible under Act V. of 1848, and
that, even if admissible, it was not established.
The appeal was heard by. WEs·rBOPP, C.J., and KEHBALL,J.
Pirozeahah Mihirvanji Mehta (with him Khanderav Moroji)
for the appellant.
Blufotartfm Narayan for the first respondent.
Starling and Dhirajlal Mathuradaa, Government Pleader,
for the second respondent.
Pirozeshah Mehta :-Independently of the grounds on which
the J ndge below relied, there was the express sanction of
Government obtained on the 27th October 1871, which,
though given after the institution of the suit, was neverthe-
less prior to the issue of any .writ or process, which was a.II
that was required by Section 1 of Act XVIII. of 1848. As to
the objection that the sanction is for the institution of a suit,
the operative words of the sanction simply say that the
sanction required by the Act is given. With regard to the
point that the suit is barred by Section 3 of Act V. of 1843,
that section does not apply to the present case, in which the
respondents derive their rights from a person holding the
status of a freed woman, not to use the misleading term, an
emancipat-Od slave-a status, as in the civil law, with dis-
Digitized by Google
158 IIOllB.lY DIOR COURT JtlPOJtTS,
1867. tinctly different rights and liabilities from that of a slave.

Mia A.J11uo- Under the Muhammadan law besides, the respondents cannot
DIN KB4'N
"· be sa1'd to have acqm'red posse881on• of the property m ' dis-
!1~.~ pute by inheritance from the freed woman (3 Bedaya 444-45 ;
1 Baillie Dig. 386-87).
As to Section 2 of Act V. of 1843 pointed out by thia
Court, it is only intended for the common cases in which
masters arrogate certain powers over the person and services
{the section leaves out the word property) of their slaves.
It does not apply to a case in which rights of inheritance are
claimed to the estate and in the property of a freed woman.
W ESTROPP, C.J. :-We affirm the decree of theDistrictJ udge,
first, because no sufficient sanction was given by Government
to satisfy Act XVIII. of 1848.
The permission of Government given in 1858 to Mr. Heb-
bert, the Agent for the Governor of Bombay, to pay ovel"
certain money of Amir-un-nissa to whomsoever a certificate
of heirship to her might be granted by the civil court, would
have authorized an application under Regulation VIII. of
1827 (Act XX. of 1864, under which certificates of ad.minis-
tration may be obtained, not having then been passed), but
certainly would not authorize the institution against the
defendants of a general civil suit under Regulation IV. of
1827, or under the Civil Procedure Code, Act VIII. of 1859,
brought, as the present suit was, eleven years after the
order of the Bombay Government.
Nor did the permission given by Government in lk. Wed-
derbarn's letter dated the 27th October 1871, to institute a
suit, authorize the continuation of a suit already instituted,
as the present suit was, so far back as the 8th of November
1869. We see nothing to lead us to suppose that Govern-
ment intended (if it could do so, as to which we say nothing,) .
to deprive the defendants of any benefit arising to them
from the lapse of time.
We refrain from deciding whether, having regard to Act
XVIII. of 1848, the plaintiff could lawfully file a plaint
against the defendanta without the consent of Government
Digitized by Google
BO~AY HIGH COURT REPORTS, 159
first obtained, or, whether the court had any jurisdiction to 1876.
receive such a plaint. It is sufficient for us to say that there Mia A.JMuo·
W88tnot any sueh consent of Government t o th e 1ssumg• · of DIN KHA'M "·
any process, to bring the defenJants before the court in a Zu' -uM-
is1esA'.
suit such as this, instituted in 1869, or to proceed with it
beyond the filing of the plaint, as Act XVIII. of ,1848 at the
very least requires.
Sec<mdly.-We think that Act V. of 1843 deprived the
plaintiff of any right to bring this suit. Amir-nn-nissa died
in 1857, when that Act was in fu.11 force. We think that the.
effect of that Act was to prevent the enforcement of any
rights, which would, if that Act had not been passed, have
ansen oat of the status of slavery. The right claimed by
the plaintiff rests solely upon the alleged fact that Amir-un-
niw. had been at one time the slave of the late Nawab. He is
Mid by the plaintiff to have enfranchised Amir-un-nissa ;
and on the authority of 1 Baillie's Dig. 386-87, and 3 He<l-
aya 444-45, it is contended that he, as her emancipator, or,
he being dead, his nearest ma.le relative, or in default of him,
that male relative's heir, would be her heir, and that neither
her daughter nor the defendants, who are that daughter's
daughters, are so. That . right, if it ever existed, is, in our
opinion, one ariiling out of an alleged property of the late
Nawab in Amir-un-nissli.'s person and services before he
enfranchised her, and as such is one of the rights which
every civil court in British India is prohibited, by Section 2 •
of Act V. of 1843, from enforcing. We a.re not prepared to
11ay whether this case would not also come within the prohi-
bition in section 3 of the same enactment.
It is unnecessary for us to give any opinion as to whether
the doctrine bi.id down in 1 Baillie's Dig. 386-87 and in 3
Hedaya 444-45 would apply to such a case as the present,
in which the plaintiff substantially admits that the mother
of the defendants was the legitimate daughter of the eman-
cipator (the Nawab) by the emancipated (Amir-un-nisslt),
nor do we think it necessary to give any opinion as to th~
extent to which the defendants are bound by the admission
Digitized by Google
160 BOMBAY HIGH COURT REPORTS,
1875. as to the Muhammadan law which the District Judge, in his

Mm AJMUD· judgment, states as made on their behalf.
:PIN KHA' N
v.
W e also deem 1t
. unnecessary to give
• any opinion
' ' on t h e
Za'-UN·
NISSA..,
question as to whether or not Amir-un-niss! had been a
slave. Assuming that she had been so, as contended on be-
half of the plaintiff, we, for the reasons already stated, hold
this suit to be unsustainable.
The decree of the District Judge must be affirmed, with
one set of costs of this Regular Appeal, to be paid by the
plaintiff to the defendants.
Decree affirnled.
(APPELLATE CIVIL JURISDICTION.]
Special Appeal No. 423 o/1872.

1873.
Auguat l3. RA'VJISHIVRA'.MJosm ... (Original Plaintiff) Appellant.
KA'tuRA'M, son of MALux:-1
CHAND, deceased, his widows (Original Defendants)
and heiresses, CHABA1BA1IJ Respondents.
and BHAGA1BA'I, and another.
Dtcru-lib:uution-App~ation q/lerdttrtt-Act XXIII. o/1861, &4ion 11
• -Murtgau-Rtdonption.
An application to the oourt, paaaing a decree for poeseuion in fnoor of
the heira of a mortgagee, for further execution thereof, b1 taking an account,
ia not the proper mode for the mortgagor to redeem the mortgaged laod1
and to reco,er poeae11ion thereof.
The proper oourae for a mortgagor who aeeka for an acoount and redemp-
tion, or for redemption alone, is to bring an indepca .t,nt suit for that
purpoee,
Jcnoji v. B11aul:atah (2 Bom. H. C. Rup. 371) over ruled.
THIS was a case referred for the decision of a Full Bench

by WEITROPP, C.J., and NA NA B1U.'1 fuam.t.'s, J. The
1 1
reference was heard by a full bench consisting of WES-

TBOPP, C.J., MELVILL, WEST, and NA NA IIUA 1 llARIDAS, JJ.
1 1 1
Digitized by Google
BahiravnatTt Ma119eah for the appellant.. 1873.

RA'VJI SHIV•
Dkirajlal Mathuradas (Government Pleader) for the re- BA'11 Jo~uc
v.
spondents. K.t.'Luiu.'11.
The facts and arguments sufficiently appear from the fol-

lciwing judgment of the full court delivered by
WEBTROPP, C.J.-This is a suit for the redemption of a
mortgage. Kalunim (whose widows are, as his heirs, the de-
fendants and respondents here) having, as heir of the mort-
gagee, obtained, in regular appeal in the Zillah Court, a de-
cree, on the 12th September 1850, against the mortgagor for
Rs. 262-18-0 due in respect of the mortgage, with this
direction, "and it is farther ordered that if the defendant
(the mortgagor) fail to pay, the plaintiff is to be placed in
possession for the amount claimed" (Rs. 262-13-0). That was
the ordinary decree to put an unpaid mortgagee in possession,
which possession he might retain until he was paid in full.
Mr. Dhi:rajlal Mathuradtis, fort.be present defendants, made a
preliminary objection that this suit for redemption will not
lie, inasmuch as, he contends, the mortgagor's only proper
mode of recovering possession is by an application, in the
possession suit, for further execution of the decree of the
12th of September 18:iO, which course, he says, is prescribed
by Section 11 of Act XXIII. of 1861, and was successfully
pursued in the following unreported miscellaneous cases : •
Gang6krishna v. Naranbhai, decided by SAuss11:, C.J .,
and TucnR, J., on the 18th April 1866; Dattdtraya v.
Rangu Sltamj,i, decided 4th April 1868; and H-imat8i1UJ v.
Gangadas and others, decided 28th April 1870. Those
authorities were cited to NanabMi Haridaa, J., and myself
when this special appeal first came before us in the Divi-
11ion Court on the 23rd of July last, and we, being of
opinion that they were unsustainable in law, and not being
inclined to follow them,.referred to a Full Bench the following
questions : -
1,t.-Whether an application to the court which passed
the previous decree for possession in favour of the mort-
gagee's heir, for further execution thereof by taking an
B 244,-u
Digitized by Google
162 BOKBAY BibK COUR'r UPOR1'8.
1873. account, &c., is, as held in those cases, the proper mode
RA'vn 8H1v. for the mortgagor to redeem the lands from the heirs of the
RA'lll JOSJU •
K.t.'LuJU.'x. mortgagee, and to recover possession thereof frQm them.
2nd.-Whether, if such be the case, a separate suit for

redemption is prohibited by Section 11 of Act XXIII. of
1861.
We are unanimously of opinion that the first question

tnuat be answered in the negative.
In addition to the cases already mentioned, J&Mji

Bandji v. Vyankatesh Shriwiuas (a) was cited to the Full
Conrt in snpport of Mr. Dhirajlil M.athllffldas's objection.
We think, however, that neither it nor the three unreported
cases can be sustained, inasmuch as, when Kalurim, the
heir of the mortgagee, was pt1t into poBBession of the mort-
gaged premises, the decree of the 12th September 1850
was fully executed, the suit in which that decree was made
being really nothing more tha.n a suit in the nature of an
ejectment, by an unpaid mortgagee, of the mortgagor from the
mortgaged premises. A proceeding for redemption of those
premises is not a question: '' 1-elating to sums alleged to have
been paid in discharge or satisfaction of the decree or the
like, or a question relating to the execution of the decree,"
which we hold to have been fully executed when Kalunim,
the heir of the mortgagee, was put into possession under the
decree. Were we to hold that a mortgagor might apply,
in a possession suit, fot an account and redemption on
the ground that such a proceeding was in further exe-
cution of the decree for possession in favour of the mort-
gagee, it would follow that the mortgagor would be
barred, if the mortgagee had been in possession for three
years under that decree-a result which we feel certain the
• Legislature never contemplated, and which would be quite
contrary to the spirit of clause 15 of Section 1 of Act XIV.
ef 18o9 and Articles 147, 148, and 149 of Schedule II.
of Aot IX. of 1871.
(a) 2 Bom. H. C. Rep. 371,
Digitized by Google
IIOIIBAT HIGH COURT UPOBTS, 163
The answer of this Court to the first question being in 1873.
the negative, the second qnestion does not arise. It follows, RA'v.n SH1v-
u'11 Josm
as a necessary consequence of our answer to the first quee- ,,.
tion, that the proper oourae for the mortgagor who seeks KA'u,.ru.'11.
for &n account and redemption, or redemption alone,. is to.
bring an independent suit for that p.urpose,.

1875.
Miscellaneous Special Appeal No. 24 of 1874. January Ill.
RA'HCBANDRA BALLA'L .... .. Plaintiff andAppellant,.

BA'BA'EsGONDA and others.De/endants ancJRespondents.
Decree-&uctaioll-.Applkation aftn- dec~-Acl XXIII. qf 1861, 8«tion
11-Mr>rtgu.ge-Pouaaion-Rtdemptioo.
A mortgagee was put into poaaesaion of the mortgaged property, under a
decree obtained by him againat the mortgagor, to the effect that the mon,
aagee ahould ffmain in poaellllion until the mortgage debt waa paid. The
mortgagor aubaequently paid into Court tho money due under the mort.
gase decree, and applied to be renored to the p081!881ion of the mortgaged
property. Both the lower courts granted the mortgagor'11 application.
On apecial appeal, h~ld (following the deci11ion of the Full Bench in
.Jlai,ji Shi,mi.mJoahi v. KdlurdmMalukchand. mate p. 161) that such an appli-
cation was 11ot the proper mode for the mortgagor to redeem the pro,
perty and to recover poseellllion from the mort~agee, tlae previous decree
for poaaeaaion having been fully exeonted when the-morlgagee waa put
into po810A10D·
THIS was a miscellaneous special appeal from'.the order of

H. J. Parsons, Assistant Juclge at Ratnagiri, affirming
the order of the Munsif of Malwa.n.
The facts of the case are briefly these :-In 1862 Ramcha.n-
dra sued the defendants, Babu and others, on a mortgage, and
ob.t,a.h1ed a decree age.inst them, that he we.a to .be put into,.
and continue in, possession of the mortgaged property until
the defendants pa.id him Rs. 499. Under that decree, Ram-
chandra was put in possession of the property in 1872. On
the 16th October 1872, the defendants paid Rs. 499 into
court, and applied for restoration of the possession of their
property. This application was made under Act XXIII. of
Digitized by Google
164 .BOVB.n HIGH COURT REPORT!.
_ _1_87_5. 1861, Section 11. The plaintiff contended that his mort-
RA'McHAN- gage decree against the defendants had been fully executed
»tu. !~'L when he obtained possession under it, and that they should
BA'BA'
EsoOND.l.
bring a fresh suit to redeem the property, and not seek to
obtain it by an application under his mortgage decree.
Both the lower courts ordered the plaintiff to receive .the
money and restore the mortgaged property to the defendants.
In special appeal it was again contended that the decree
obtained by the plaintiff had been completely executed, when
/ie waa put into possession, and that it could not be executed
a second time at the instance of the defendants, who should
bring a ~gular suit to redeem the property.
The special appeal was argued before WEST.ROPP, C.J..,.
and KoBALL, J., on the 15th January 1875.
Ghanasham Nilkanth for the appellant :-The question
raised in the present case has already been decided by a Fu 11
Bench of this Court in special appeal No. 423 of 1872, d'ecid-
ed on the 13th August 1873.
SMntarwm Narayan contra.. •
WESTBOPP, C.J. :-The Court reverses the order of the
District Judge of the 21st June 1873, and the order of the
Subordinate Judge of the 17th January 1873, with costs.
This decision is in conformity with that of the Full Bench
in S. A. No. 423 of 1872 (Ravji Shivram Joshi v. Kalurtim
Malukchand), made on the 13th of August 1873. That
was a suit by e. mortgagor fonedemption. The mortge.gees,
who had obtained possession under a decree in a so.it brought
by him for that purpose against the mortgagor, took a. pre-
liminary objection that such suit would not lie, inasmuch as
the mortgagor's proper mode of recovering possession was
by an application to the oourt in the former suit for further
execution ofthe decree therein. Such an applice.tion had been
successful in some unreported cases as well as in a case re-
ported in 2 Bom. H. C. Rep. 371. Those cases, however,
seemed to the Division Court to be unsustainable, and it
referred to a Full Bench the question, whether an appli-
cation to the Court, which passed the previoas decree
Digitized by Google
'BOMBAY DIOR COURT REPORTS, 165
for possession in favour of the mortgagee, for further 1875.

execution thereof, by t.a.king an account of what was due RA'MCHAN·
to t he morigagee, and, on payment by t he mortgagor

DRA B.u.LA'L
"·
of the amount found due, by restoration to him of the ,,.h~A'BA'
-,ONDA.
mortgaged premises, is, as was held in those cases, the
proper mode for the mortgagor to redeem the lands from
the mortgagee and to recover possession of them from
him. The Full Bench, principally on the ground that the
previous decree for possession had been fully executed when
the mortgagee was put into possesssion, overruled these
cases, and answered the question referred to it in the nega•
tive. That decision completely governs the present case.
Orders of tlw lower courts reversed with costs.
[ APPELLATE CIVIL JURISDICTION.] March 3 .
llegul,a,r Appeal No. 76 of 1872.
·
KxsuA v GoPA' L G1NDE } D ,1 d
and t woo th ers...... . e1 en ants and
. Appellants.
fuu'rA' and another ... Plaintiffs and Respondents.
Partnerwp-Riqhu of a <k«OMd parlner-Adjtutment ef a partnership
accounl.--Paymenu bv partnera-Premmption-&«ution-Ser.ure of
partMra/up properly in e:cecution Gf!airut one partner.
A suit baaed on the right of a deceased partner cannot be limited to a
demand for bia share in the proceeds of property alleged to have come into
I.he ~ o n of the partnership during its existence. The agreement on ·
which the partnership was formed, the amounts advanced and drawn out
by the eevenil partners, and the wbaisting liabilities and &8llest8, if any, must
all be taken into account, and the suit mmt demand such a eum, if any,
u, on a general aoo<,unt, and an account between the deceMed partner and
the oo-partnership, being taken, shall appear to be due.
Payments made by the different partners of n firm are preeumod to have
been made out of the funds of the firm where the contrary is not proved
by any aatiafactory evidence, and when a firm coneisting of two members is
dieeolved by the death of one partner, the pNllUDlption is that the deceued
1'lll entitled to a moiety of the existing 11111et.e.
It is an improper way of executing a decree obtained personally against
one of the several partners of a firm to seize part of the partnership pro-
perty, to sell that part, and then distribute the proceeds between the exe•
CUting creditor and tho other partners of the firm.
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..ii
166 '
BOKBA Y HIGH COURT RIPORTII.
1875. Principle on which the account of a diAolved partnership ahould be ad-

KESHAV Go. juatetl, explained.
PA'L ~mDx THIS was a regular appeal from tho decision ,of Dayarain
RuA'PA', Maya.ram, First Clase Subordinate Judge of Belga.um.
, The plaintiffs (1 Rayap& and 2 Keehav Hari) brought this
suit against Keshav Gop,1 Ginde, 2 Apana More, and 3
Kriehnaji Ginde, and sought_ to recover from them 805 logs
of timber (measuring 1,206 candies), or their value,Rs. 34,151>.
The plaintiffs stated that a partnership was formed between
the first plaintiff's brother, Bal{p& (now deceased), and tho
first defendant, Keshav Ginde, eaoh having a half share in
the profit and lose thereof ; that the second plaintiff was a
sub-partner under the deceased Ba.U.pa., and similarly the
second and third defendants were sub-partners under the
first defendant; that on the 11th June 1862 the partners
purchased from one Vithal Kaehirav Bhende 2,210 logs of
timber, consisting of tee.k, black-wood, and mutti, and mea-
suring 2,412 candies, for Rs. 12,000; that Balapa died short-
ly after the timber had been collected in the Godhavli forest ;
that subsequently the defendants sold off the whole timber; •
that they had in their possession the deed of purchase from
Vithal Bhende, and all the papers and books relating to tho
partnership transaction; that out of the originally purchased
2,210 logs (measuring 2,412 candies) the plaintiffs had a
right to 1,105 logs (measuring 1,206 candies); but that as
three hundred logs had been sold in execution of a decree
against the deceased Balapa, by which sale Balapa's judg-
ment-creditor had realized Rs. 2,025, the plaintiffs allowed a
deduction of 300 iogs (or their realized value, Rs. 2,025), and
claimed from.the defendants 805 logs, or their value as men-
tioned above. The defendants denied the plaintiffs' claim,
and stated that Balapa himself had sold the timber and kept
the money and papers belonging to the partnership. Th&
SubordinateJudgefound thequantityoftimber,thatcameinto
the possession of the partnership from Vithal Bhende, to be
1,948 candies, there being a short delivery of 464 candi.es, and
fixed the measurement of the three hundred logs sold undertbe
decree against BalaI>', at 533 candies, andgavo to the plaintiff•
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BOMBAY HIOll COURT REPORTS, 167
adecree for 7,007! logs, or in default, theirvalne, Rs. 21,225 1875.
He fixed 533 candies as the quantity sold in execution, solely KF.'>HAV Go·
from the fact that the plaintiff Rayipa himself set the value PA.L ; : 1NDr.
of the 300 logs at Rs. 16,000 in a petition which Ray6.pa. had RuA'PA',
presented for the removal of the attachment placed on the
300 logs by the deceased Balapa's execution-creditor. The
defendants thereon preferred an appeal to the High Court
against the decree of the Subordinate Judge.
The appeal was argued before WEST and NA NA 0 1
BHA'1
HARIDA's, JJ.
Latham (with him Baltiravnath Mangesh) for the appel-

lants. .
Farran (with him Vishnu Glianasham) for the respondents.
The Court remanded the case for a fresh finding by the

Subordinate Judge, with the following observations as to the
manner in which the partnership account was to be made
np:-
WEsT, J. :-The suit in this case was so erroneoosly con-
stituted, and has been conducted with so imperfect an appre-
ciation of what was essential for its proper disposal, that the
Court must send it back to the court of first instance for
a fresh investigation directed to the points that really arise
between the parties. A suit based on the rights of a deceas-
ed partner cannot properly be limited, as was this one, to a
demand for his share of the proceeds of certain property alleg-
ed to have come into the possession of the firm or partner-
ship. The agreement,on which-the partnership was formed,
the &J\l.Ounts advanced and drawn out by the several partners,
and the subsisting liabilities and assets, if any, must all be
taken into account, and the demand must be for such a sum,
if any, as, on a general account and an account between
the deceased partner and the co-partnership being ta.ken,
shall appear to be due. It was almost futile to go through
a long investigation of how many logs of teak and mutti had
come into the hands of the partners in this case and of the
prices a.t which they might possibly ha.ve sold them, while uo
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168 BOMB.A Y HIGH COURT RJl:PORT8.
1875. &dvert.ence was had to the equally important questions of

KuHAv Go. the amounts, brought into the partnership and expended
PA'L "~iwoz for it by the several partners, and of the loss inflicted on
RuA.'PA'. the partnership by the forced sale of a quantity of its
timber in execution of a decree against Ba1' pa alone. * *
*
The total quantity of timber-purchased from Government
by Vithalrav, the vendor of Ba.la.pi, and the defendants,
seems to have been 2,412 candi.es. This was re-sold at a
profit by Vithalrav to the partnership; but before the timber
was delivered by Government,a quantity of it was destroyed in
a jungle fire. The allowance made by Government on this
account was Rs. 1,000. The suggestion that a larger sum
was allowed is not supported by ~y testimony that can pre-
vail against the Government accounts showing this precise
sum, nor do the Court think it likely that Vithalrav accepted
an allowance sma.llcr in proportion to the whole price than
the quantity destroyed in proportion to the wholequantitypnr-
chased. The Subordinate Judge has estimated the quantity
destroyed according to this proportion as 463! candies,
and;thie the Court think the most reasonable determination
on the point that he could have arrived at.
After the timber had been collected, 300 logs were attached
and eventually sold in execution of a decree against Be.lapa
alone. The defendant Keshav's application to raise the
attachment on the a.llega.tion that Bala.pa (now deceased) had
had no right to the property was rejected, but one-half of
the proceeds was made over to him. It was an improper
way of executing the decree against Ba.l&.pa. merely to seize
pa.rt of the partnership property, to sell that part and then
distribute the proceeds between Balapa's partners and his
judgment-creditor, but this having been done and being
irreversible, Ba.l&.p&.'e representatives must account for the
lose thus ~ioned to the common assets. What this loss
was has been variously computed by the parties and by the
Subordinate Judge. The latter, taking the value of the
whole 300 loga, as set forth by the plaintiff Rayapa, and the
price per candy as estimated in the plaint, has arrived at the
concluaion that the quantity was 533 candies, but if, a.s
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Rayiip& averred in his petition No. 135, the timber was worth 18i5.
Rs. 16,000, it is hardly possible that it should not have KESHAV(lo·
contained more than 533 candies. It appears from defend- P.t.'L v.GJNDE
ant Krishnaji's agreement with Government (145) that teak RnA.'rA'.
eould be bought for delivery in Belgav at Rs. 2! a cubic
foot and mutti at Rs. 2i a foot. The price that could be real-
ized at Tavargati would probably pe some 2 or 3 rupees a
candy lees than these prices. It is probable and almost
certain that a judgment-creditor, with an order empowering
him to attach and sell 300 logs out of nearly 2,000, would
seize the best he could find, and it may be assumed that the
logs actually taken in execution were of teak tim her and of
a large size. The ku.lkarni of the village estimates them as
weighing about 350 candi.es, which is but a trifle over the
average weight of the 2,210 logs all round. Raya.pa's esti-
mate of the value at Rs. 16,000, on the other hand, is
probably quite as excessive in the other direction, and to
fo~ an estimate of the quantity by dividing this sum by
Rs. 30, Raya.pa's valuation of a candy, was a very unsafe
way of proceeding, because, according to the notions of the
parties, and indeed of the Subordinate Judge himself, the
plaintiffs had nothing to lose by an excessive valuation as
to the 300 logs, while they had much to gain if this valuation
could be extended to the remainder of the timber. Among~t
the other numerous anomalies of the case, it appears that
the plaintiffs served the defendants with a notice to prod nee
the accounts relating to the purchase and sale of the timber.
Those accounts do not seem to have been produced or called
for on the further hearing of jhe cause. If they can be pro-
cured, the SuhordinateJudgemaylearnfrom them what is the
cost of carriage of timber per caiidy from Tavargo.ti to Bel-
gav, ·which the Court understands to he the nearest mart.
Their evidence should be supplemented by independent
testimony, and when the Subordinate Judge has thus satis-
fied himself of the cost of conveying timber from Tavargati to
Belgav, he may fairly estimate the proper price at the former
place by deducting such cost per ca;ndy from the sel1ing price
of Rs. 21 a candy at the latter. The same accounts, by
B 244,-v
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170 BO'HB.&.Y HIGH COURT RF.PORTS.
- -~ showing how many cam.dies.were removed and sold after the

KE,BAV Go- attachment, may enable the Subordinate Judge to say with
P,a'L GINDE
v. ,
approxima te certainty
• to h ow many t he attacnmen
-'L · t
extend ed••
R.lY.a.'P..l',
In the absence of this testimony, the quantity cannot, the
Court think, be taken to be more than 450 can.dies, an estirua.te
which allows the logs attached to have been about ~O per
cent. more in bulk than the average. The quantity having
been ascertained or approximately estimated as thus directed,
Bala.pa's account with the partnership will be.made up by
debiting him with the proper price at Tavargati of the 450
candies, or other more aocumtely determined quantity of
timber, and crediting him with the amount handed to the
defendants as their moiety of the proceeds. Keshav's
attempt to get the attachment removed by setting up his
own sole title, and endeavouring to disprove Balapti's interest,
was a fraudulent proceeding, which subsequent events have
shown not to have been entered on with a view to the com-
mon advantage of the partn~rs. Avabai, the widow of
Balapa, appears to have been induced with some difficulty to
lend her countenance to the endeavour, but Rayapa cannot
fairly be charged with any part of the expenses thus incurred.
The defendants must not, therefore, obtain credit for those
expenses in making up their account with the partnership.
If, from or through the accounts, the Subordinate Judge

can obtain satisfactory evidence as to bow the remainder of the
timber was disposed of, he must debit the defendants in
account with the partnership with the amount actually and
in good faith realized by its sale. If the accounts cannot be
•
obtained or cannot be trusted, he must debit them with the
fair market price. of the timber estimated, as the Court
have already indicated. On the other hand, he must credit
them with all sums which they may prove that they actually
and in good faith expended 011 behalf ·of the partnership.
If they are willing to undertake the payment of outstanding
debts due by the partnership, and the Subordinate Judge is
satisfied of their solvency, he may credit then>: with such
sums as are pro,·ed to be due, debiting them at the same
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BOMBAY HIOB COURT REPOR'!fl. I ,1
time with any assets of the partnership that mny appear re- 1875.
coverable, but have not been aotuaUy recovered. KF.~HAV (;9 •
• with the partnership, of which the items

Ba.la.pe.'s account
PA'L GINDE
...
RAYA'P•'·
requiring particular consideration have all'cmly been dealt
with, should be ma.de up on the same principles as t.hat of
the dC'fenda.nts. He is to be credited with sums rea~onably
and properly paid by him on account of the partnei.·ship, and
debited with those pa.id to or for him. Raya pa's expenses in
relation to the atta.ohment aro not to be charged against the
partnel"Ship.
No written agreement embodying the terms of the part.
n.en;lJ.ip has been produced in the case. If such a document
can be procured, the Sub.ordina.te Jw.dge w.ill procure it and
will follow its provisions in finding on the distribution that
5.honld be made of the final assets. In its absence, he wiJI
follow the usual presumption that the capital was to be fur.
nished in equal sharei! by ea.eh principal partner, and that
the tinal assets a.re to he distributed in the same proportions.
Fo-r sums above a moi:ety of the capital la.id out by them, the
defendants will be entitled to. credit before a distribution.
'loo balances finally found due to the partnership by the de•.
fondants on the one hand, and by Bala.pa on the other, will
constitute its assets, which being eqnally divided, a moiety
will he p~yable to the plaintiffs after deduction of the ha.la.nee
due by them to the firm.
The Subordinate Judge will preps.re a.n account,, as thus
directed, taking fresh evidence, if tendered or procurable~
on such material points as h.i,ve not been disposed of, and
will forward it with the evidence to this Court.
On receipt of the Subordinate Judge's finding, the case
egain came on for argume·nt and disposal before WEST and
NA'NA 1 BHA1 1 liARmA.'s, JJ., on the 3rd March 187,5.
Lang (with him. Bnhiravno.th 11,Jangesh) for the appellants.

Farran (with him Vishnu Ghanasham) for the respondents • .
•
Pi:a CuRlul :'-We must, on such materials a.s are before us,
determine that Kesh11,v aud the other members representing
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172 BOMBAY HIGH COURT REPORTS. '
1875. the firm are to pay the plaintiffs Rs. 17,590 as above.* The
Kl"-SRAV Go- evidence fails as to who supplied the capital and on what
P.i'L GIND:&
"· terms t Iie partnersh'1p
. was constitute
. d. TIA°" paymen ts ma.ue
-~
RuA'PA'. by the different partners for the firm were presumably made
out of the funds of the firm, and the contrary is not proved
by any satisfactory evidence. Hence we most fa.II back on
the ordinary presumption that at the moment when the firm
was dissoived by Bal6pa.'s death, he was entitled to a moiety
of the existing assets, i.e., Rs. 58,500, minus a debt for cart-
~ire of Rs ..300. His exeoution-oreditor ·seized and sold
Rs. 13,535 worth of timber, out of the proceeds of which
Rs. 2,025 were handed back to Keshav. The account is
made·up accordingly, and the defendants must pa! the
balance to plaintiffs. Costs throughout in proportion.
• Balapa in account with Keshav & Co.
Dr. Cr.
To Tim her attached in By caah paid to Ke-
execution ............... Ra. 13,535 ehav on account of exe•
Balance .. .. ... ... .... ...... . ,, 17,590 cution ..... ... ... ... ....... Ra. 2,025
A moiety of remaining
assets ... ..... . .. ... ... .
58,500 - 300
31,125 - - - - = 29,100
2
31,l~

March 10. Regular Appeal No. 65 of 1873.
GmIA'PA' ...•..••.•• ••..•.• Plaintiff and Appellant.
JAKANA' and others ... ... Defenda1,ts and Respondents.
llerediiary office-Succuricm-Rtwmption-.A.dver,e poa,uai01r-Lifllitaticn.
J held the office of Pdtil more than fifty years ago as repz:esentative of
two branohea descended from a common ancestor, and then united in inte"
est, there being two other branches descended from the same anOlllltor, but
severed in interest from those repreiented by J. J hal"ing died in 1824, waa
1mccee<lcd by his son T, without any opposition from the two other branch·
e~. T was temporarily displaced from the office by G, who representett the
t"o other branches, but recoYe.red it in li50. In an action l)rought hy the
plaintiff, as representative of G, in 1873, to establish his.clai: to the office
held by T& aona, it was contended on behalf of plaintiff, in lUl.llWer to de,
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fwlanta' pita of limitation that in the absence of evidence of the circnm· _ _1_8_75_._ _
•ian,'81.under which T succeeded to the Patilalup, T must. be preMumed to GIRIA'PA'
hue been nominated tQ that office by all the memben of the toatanddr II.
family jointly, or with their aaaent sought and grantod, and Wall consequent· J,U(ANA',
ly the representative of all of them:
Hdd that the succ88llion of a 11011 to his father in an hereditary office is
primarily to be referred to a right. baaed upon the relation subsisting be-
tween them, just aa would be the son's enccesaion to his father's property.
Held alloth&t the preaumption thus arising againn • having been a nomi-
nee of all the branches of the family, and not having been rebutted by any
evidence of an assertion and admi11ion of the rights of the other branches,
Ta occupation of the Patilahip wa11 adverse to the plaintiff's right, and being
adrene at its begiiming, it WM equally adverse when, after a temporary
diaplacement by G (whom the plaint.ill' now repreaenta), T reoovered it ill
1850.
Hdd alao that an interval of more than twelve yeara having paaaed be.
tween l&io and the institution of the preaent euit in 1873, the claim WM
hatred, and the poN881ion of the office obtained by T', representatives could
noi be diaturbed.
THIS was a regular appeal from the decision of S. Tagore,

Senior Assistant Judge in Kaladgi, in original suit No.
10 of 1873,
The plaintiff, Giriapa, brought this. suit against the three
@ons of Timanii bin J akana, and prayed for e. declaration that
he was entitled to e. fourth share in the Pdtilki watan of ln-
galgi e.nd to officiate as Patil in turn with t.he defendants.
The Assistant Collector was also made a co-defendant, be-
cause ho refused to enter the plaintiffls name in the Patilki
Register of the village. The first three defendants denied
the plaintiff's right, set up an exclusive claim in themselves,
and pleaded the Limitation Aot, saying that they had been
in uninterrupted enjoyment of the office for more than thirty
years previous to the date of the plaintiff's suit. Mr. Ta.gore
found that the plaintiff had originally a fourth share in the
watan, but held that the members of the defendants' branch
of the family had exclusively performed the office of the
1C1almi since the introduction of the British rule ; that for
about four years Timana. was deprived of his offioe by the
plaintiff 'a brother, Govind; that the said Timana, however,
recovered the oflice fr0m Govind, in 1850; that since that
time the PatilBhip continued iu t.hc posscssiun of the said
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'
174 BOMBAY llIGH COURT REPORTS.
____!_!~ Timan~, and after him of his sons and representatives, the
Gm1A'PA' first throe defendants, and that, therefore, theplaintiff'sclaim
1'.
JA.KANA', was barred. Mr. Ta.gore accordingly dismissed the plo.intiit->a
suit with costs.
The appeal was argued before WEST and NA 1 NA 1 Biu'1
HARIDA's, JJ., on the 10th March 1875.

J ardinc ( with Jum Fakirapa) for the appellant.
Fltrmn (with ·him Dhirajuil Mathu,raclas, Go.vernm.ent
Pleader,) for the respondents.
WEST, J.:-It seems to be well ostablished, notwithstand,
ing some vague and inconsistent evidence to the contrary..
that Jakana. held the office of Patil more than 5.0 years ago
as representative of two branches descended from a. common
ancestor,Bhimana, and then united in interest. Thero were
two other branches severedin interest from those represented
by Jakana,and, when Jakan! died, iu 1824, if those branches
had a right to nominate a successor, ~hey oug,ht then to
have asserted it. Jakan:i was in fact succeeded by his son
Timano, and Timana's succession implies, if unexplained, as
it is, that the right to hold the office was confined to Jakana's
line. It has been urged by Mr. Jardine that the circum-
stances, under· which Time.mi succeeded, do not appear, and
he wonld have us infer that Timan:l was nominated by a.II tho
members of the v,atmuufr family jointly, or took the office
with an assent on their part, sought and granted wl1ich
would make him their representative, There is some force
in this argument, but we think that the succession of a son
to his father in an hereditary office is primarily to be refer.
red to a right arising from that relation subsisting between
them just e.s would be his succession to property. A pre.
i;umption thus amses against 'l'imana's having been a nomineo
of all the branches of the family, and this prosumption not
having been met by any ev:idence of an assertion and admis~
sion of their rights, Timana's occupation. of the P,Hilship
must be taken to have been adverse to the right now set up
by the plaintiff, who belongs to one of the branches not re,.
presented by Jakani. Having beeu adverse at its beginning1
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EOllBAY HIGH COURT RtPOUTS, 175
it was equally adverse when after a temporary displace- 1875.

ment by Govind, whom the plaintiff now represents, Timans GIRIA 1 PA'
v.
recovered it in 1850. Between that time and the institution JAJU.N.A',
of the present suit, there was an interval of more than twelve

years, and the possession of the office obta.inod by Tims.mi's
representative could no longer then be disturbed. If the
plaintiff, Giriap~, being united in interest with Timana, had
been necessarily represented, in the absence of a special
agreement by Timana, while Timana waspatil, his right would
not of course have become practically extinguished by limit-
ation, and thus it is that the plaintiff, Venkana, in the other
suit has been enabled to succeed, but here no union of inter-
ests has been averred as the foundation of the plaintiff's
right. He has claimed merely as representative of a sepa-
rated branch against which Timana's tenure of the office was
always adverse.
We must therefore confirm the decree of the District Court
with costs.
•
Nan.-A review was applied for in this case, but the Court (WEST and
N.i.'sA'BeA'I HARIDA's, JJ.,} on the 23rd September 18i5, rejected the peti-
tion, on the ground that no sufficient reason waa shown for the reYieweought.
[ 0RIOINAL CIVIL JURISDICTION.]

March 9.
Suit No. 229 of 1874.
JusAB HA'JI JA'FAR ..................... ••••••••,Plaintiff.
HA'JI GuL MUHAMMAD ...... .................. Defendant.
Rfgistralion Act Vlll. of !Sil, Stclion 17, ClatutS 2 and 3, Stctions 18

and 49-Agre~nt for purcha11e ef immovtable property contemplating a
/wlure ·conveyanre-Payment of earnest-111omy.
A " bargain paper" for the purchase of immoveable property above the
nlue of Ra. 100, which contemplates the execution of a future conveyance
doee not require registration.
Tms was a suit, tried by Sir c. SJ.RGENT, J., in a Division
. , Court on the 15th January 1875, for specific perform-
ance of an agreement to purchase two houses. The agree-
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176 BOlfBAY HIGH· COURT RIPOllTS.
1875. ment, which was in writing, was dated the 25th June 187:J,
JusAB HA'JI and the material portions of it were as follows:-" To Jusab
J A:,AR Haji J afar on behalf of Memon Haji J afar W~yedana, written
:~~~~:~. by Mamon Haji Gul Muhammad Haji Abda Rehamond. To
wit. I give to you this bargain paper as follows :-There
is your property consisting of houses two in numbers."
Here followed a description of the houses, after which the
agreement continued : '' I have made this bargain paper to
purchase the same from you for the value of Rs. 8,250. As
earnest for the 'same I have paid to you in ready cash
• Rs. 1,000. As to the balance of Rs. 7,250, I am duly to pay
the same to you on your signing a new deed of sale in
respect of these two houses. * * * Yon are duly to
deliver the new deed of sale in respect of these houses
prepared through an Attorney. * * • The time for the
performance of this bargain is fixed to be one month. 11
The agreement was not registered.

'
Latham, for the plaintiff (Scoble, A. G., with him,) at the
hearing tendered the agreement in evidence,
Starling, for the defendant(Purcell with him), objected:-
This, being an agreement to purchase, creates an•equitable in-
terest in immoveable property in the purchaser, and extin-
guishes one in the vendor. Therefore, the document is one
which must be registered under Act VIII. of 1871, Section
17, clause 2.
Further, the document itself states the payment of '
Rs. 1,000, and, therefore, under clause 3 of the same section
the document is one which must be registered. Under '
Section 49 of Act VIII. of 1871, the document cannot be
received in evidence.
Latham :-The document is an agreement, and, therefore,
the registration of it is optional under Section 18 of Act
VIII. of 1871;
It creates no interest in immoveable property, for it ma
contra.et, which affects only the person, not a conveyance,
•
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BOJIBAY HIGH COU&T IIPORTS, 177
which affects the property-Maine's Lectures on Ancient 1875.
----
Law (a). JUSAB ffA'Jf
JA'l'AR
He also cited on the question of the necessity for regis- H v.
A'Jr Gur.
tration: Ramtonoo Surmah Sircar v. Gour OhunJ.er Stirmalt MuHAMMAo.
Sfrcar (b); Bunwaree Lal v. Bunguni Lal (c) ; Mark Riddedd
Currie v. 8. V. Mtttu Ramen Ohetty (d) ; Bliafrabnath Kliet-
tri v. Kishori Mohan Shaw (e); Haji .dbdttl Vidorta Jonas v.
Haji Harone Esmile (n; and Port Gowning Land, Ini•est-
ment, Reclamations, and Dock Company ( Limited) v. Smith
(g).
Fati Chand Sahu v. Lilamber Sing Das (h), as being a sale
in present·i, is distinguishable from the present case.
The words in clause 3 of Section 17 of Act VIII. of 1871
refer to the whole sum which is to be paid as the entire consi-
deration, not to a small sum intended only to bind the bargain.
Starling, in reply :-The cases cited against our contention
can all be distinguished, and even if they were applicable to
the present instance, they have all been over-ruled by the
case reported at 9 Bang. L. R. 433. There being no dif-
ference in equity between the sale and the agreement to sell,
the agreement in this case, in the words used at p. 438 in
the case last cited, " presently operates in equity aa a sale of
the property,'' even if the words used in the agreement,'' I
have made this bargain paper for the sale to you," be not
held to be equivalent to the words '' I have bargained and
sold to you." In the case reported at 9 Beng. L. R. 433
the document is described as an ikran11ma, which means
agreement (i). In that case, as in this, a further document
was to be executed.
The words " any consideration " in clause 3 of Section 17
of Act VIII. of 1871 cannot be held to apply only to the whole
(a) Pp. 318, 321 1 et le<J, (b) 3 Cale. W. R. M Civ. Rul
(c) 7 Cale. W. R. 280 Ci,·. Rul, also reported at 3 Wym. 186.
(d) 3 Beng. L R. 126 A.C.J. (e) 3 Beog. L R. App. 1.
(/) 7 Beng. L R. App. 21 (g) L R. 1 Ind. Ap, 124.
(h) 14 Moore I. A. 129 ; S. fJ, 9 Benf{. L. R. 433.
(i) He referred to Forbell'a Hinduatani o;ciionary and 'Johnaou'a
Arabic and Poreian Dictionary.
B244-w
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18~~ -- -consideration or it would be possible t,o save all documents

1
Jv~":,F~{J from thenecessity of registration bythepa.ymen~of one pie less
, v. than the full consideration. Payment of a portion of the pur-
H A JI GuL h
MPJUMMAD. c ase mone~ 1s a
. "transact1on
. a ffectmg
. t he property," an d
therefore Section 49 of Act VIII. of 1871 applies.
'rhe case reported at L. R. 1 Ind. Ap. 124 does not in fact
conflict with that reported at 9 Beng. L. R. 483, and is
no authority for the plaintiff's contention, for the document
in that case did not create or extinguish any interest in
immoveable property, but was simply an agreement that
when rent became due it should be set off against the deben-
tures.
(Ju,•. ad. vult.
SARGENT, J.:_;,_Tbis document is, on the face of it, termed a
"bargain pa.per," and provides for the execution of" a deed
of sale.',' It is, therefore, clear that the parties, at the time
of the making of the agreement embodied in this document,
contemplated the execution of a conveyance at some future
date. I am, therefore, of opinion that this document does n<Jt
need registration. That was the rule la.id down in Bunwaree
Lal v. Sungum Lal (i), where it was held that a deed merely
preliminary t.o the main contract, such as this, need not be
registered. In the case reported at 3 Beng. L. R. 127, the
same argument was urged as in this case, viz., that
equity treats as done what ought t.o be done, but Pea.cock,
C.J., says (k) : "It is not because a Court of Equity
would treat a doeument aa doing a thing which a party
agrees to do, that the document comes within the meaning
of an enactment which refers t.o a. document by which a
thing is done, and not .to an agreement to do it.'' In this
case, as in that, the document is merely an agre,ement to
create such an interest as that contemplated by the Regis-
tration Act, but does not purport to create it. Nor does
the document fall, I think, under Clause 3 of Section 17.
The money paid in this case was earnest money for the
performance of the agreement and not consideration money
(j) 7 Cale. W. R. 280 Civ. Rul. (1') See p. 131.
•
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. . BOMBAY HIGH COURT REPORTS, 179
for the creation of an interest in immoveable property. • 1875.

----
In the case reported at 14 Moore I. A. 179, the docu- JosAa HA'JI
JA°FAR
ment was an instrument acknowledging the payment of v.
HA'JJ GuL
the entire purchase-money. I must, therefore, rule that MtTHA)UlA8.
the document in this case is not one that needs registration,
and is, therefore, admissible in evidence.
•
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•
.....
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ERRATA,, VOL. XI.
PAGB,
Line 7 of head-note, for " was" read " were" 1
Line 4, for" Narian" read" Narain," ••• 16
Line 7 of head-note, for "committed " read " made " ,.. 34
Line 5 of head-note, after " subscribed " insert," and taken by a Second
Class Magistrate under Section 122 of the Code of Criminal Pro-
cedure" · ... 44
Line 11 for " for " read " of " . . . 93
Line 8 for comma after " It is not said " read semicolon 110
Line 5 for full stop after " Court " read comma ••. ib.
Line 6 for " one " read " a " . . . 172
Note (c) line 11 from bottom,/or "plantiff" read" plaintiff" 284
Line 8 dele comma . . . 236
Line 7 from bottom, del,e commas ib.
For the note at the end of the case of Reg. v. Deva. Dayal, read the
following : -
" With ihis case compare that of !leg. v. Daya Anand and a11otltet
(kUpra p. 44), where it was held to be the duty of the Session
Judge of his own motion to reject a confeesion similarly defec-
tive, but taken by a Second Clase Magistrate under Section 122
of the Code of Criminal Procedure " 240
Line 5 for '' when " read " where ", ,.. 245
Line 11 from bottom, for " specified " read "specifies " 263
Line 8 from bottom, dele " even " 283
INDEX.
Line 21 of let col., for " other " read "other," 2
Line 1 of 2nd col., dele " by " . . . 3
Line 2 of 2nd col, before " the obligee" imert " by " 3
Line 12 from bottom of let col., for "committed" read" made" ... 7
Line 25 of let col., for "Narian" read "Narain" 8
Line 17 from bott.om of 2nd col., for "was" read "were" 8
Line 10 bom bottom of 2nd col., for "CBARGBB read ".OKA.RGI:" 12
Line 8 from bott.om of let col., for " 25 " read " 251 " 14,
LiDe 11 of 1st col., after " subscribed," imert "and taken by a
Second Class Magistrate under Section 122 of the Code of
Criminal Procedure" l.'.i
DigitizedbyGoogle ,,.-
j
ii llBATA,
PAGBe
Last line of 2nd col., ft1r " his agreement by father " ,,em1, "agree-
ment by his father." 19
Line 22 of 1st col., fw "Depia" ,,«uJ, "Debi.a" ... 22
Line 16 from bottom of 2nd ooL, ft1r " beins" 'read " being " 27
Line 15 from bottom of 2nd col., ft1r " song" reoa, " sons " 27
Line 14 from bottom of 2nd col., for "sharess" reacl "shares" 27
Linp 9 from bott.om of 1st col., for ." Narian" ,,em1, "Nara.in" 31
Line,17 of 1st col., afw "subscribed" in,ert "and taken by a Second
Cla8s Magistrate m,.der Secti;on 1~2 of the Code of Criminal
Procedure" 32
Line 11 of 1st col., dele " pa.i:t" • 33
Line 4 from bottom of 1st col., for "committed" reacl "ma.de " · 36
Line 20 of 2nd ooL,/or "La.human" 'read "Lak.A-umt.m" .•. 37
Google
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•
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[VoL. Xll. PART II.]
REPORTS .OF CASES

DECIDl:l> IN ·rm]
HIGH COUR'l, OF BOi\IBA Y.
lslllTIW llY
W. E. HART, B.A.,
(OF THE INNER TEMPLE),
BAltlll STER·AT-LAW .
•
~omba11 :
rn1:sn;o AT nm
GOVEltXME~'r CENTRAL PRESS.
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T.A..BLE OF CASES REPORTED.
VOL. XII., PART II.
PAGE
Advocate General ex relatio-ne Daya Muhammad and others v.

Muhammad Rusen Huseni (otherwise called Agn. Kh~n) and
others-Jurisdict·io-n-Rule for the regulation of the rights of
dissident parties in a community distinguished by some religi-
ous profession-Sunis-Shw-Shia Ima.mi Ismailis-Aga
Khan-Kho-jas-Injunction ... .. . .. . . .. . . . 323
Bhauram Madan Gopal v. Ramnanyan-Slamp-Docunient-
Evidence-Act XVIJI. of 1869, Sees. 5, 18, and 28 ... ... 208
Bhav!ni v. Bbavani-Act XI. of 1843-0ivil Court's ju1-isdictio-n-
Patilki walan-Oollector ... 232
De Souza v. De ·Souza-Will-Tru8t-Euc-utor-1nvestment--
S1,,ares-Oonversion-Liability of a.n executm· in Bombay to
make good the loss occasioned to the estate by his 1,eglect to
convert the shares owned by his teBtator... ... .. . ... 184
Gamble v. Abdar Rahiman-Oivil P1·ocedm·e Code, Sees. 106 and
119-Abatement-No-tice-.Dismissal of suit-Limitation ... 257
HirMi v. Gorbni-Kho;jas-Succession-Letters of administration-
Custom ... 294
Ho1'IDasji Karsetji v. W. G. Pedder-Inj11nction-Bombay Act III.
of 1872-ToumDuty-" Spirits "-Toddy ... ... . .. 199
Hormasji Temulji v. Mankuvarbai-Atto-mmJ and client--Vendo1·
and purchaser-Constructive notice-Secrecy-Practice-Oosts. 262
Ib1'him v. Ab.dur Ra.himan-Civil Procedure Code, Sees. 106 and
119-Abatement-Notice-Dismissal of Suit-Limitaf>io-n ... 257
Khusbalchand v. MaMdevgiri-Grant to a Gosaii and his dis-·
ciplu._Life interut ... ••• ... ... ... ... 214
Khushlldas v. SukMram Ramchandra-Oivil P1·ocedure Code,
Sees. 284 and 285-Decree against a 3rd Glass Sirda1·~Eu-
cution against his son . .. .. . 212
Krishnaji v. Antaji Virupaksha-Act VII. of 1870, Sec. 11-
Additional stamp duty-Interest o-n decree .. . .. . .. . 227
Lalbhai Lakhmidas v. Naval Mir Kamaludin-Oe1·tijicate of sale-
Registration-Practice .. . ..• ... .. . . .. .. . 24 7
Madavji Dharamsi, ex parte-High Oo-u't'l-C1·imimil Proeedu,·e Act
(X. of 1875), Sees. 115 and 147-Certiomri-01·der of 1'efer-
ence-Act XIII. of 1856, Sec. 36-0rde1·Jor clelimy of property
-E.1:amination of witnesses . .. .. . ... .. . .. . 217
Makand.is Kalidas v. Shankardas Haribhai-San nio1·tgage (mort-
gage without possession in Guzerat)-Registmtion-Act XX. of
1866, Sec. 50 ... .. . .. . ... . .. .. . ... 241
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)1 TABLE OJ CASES BEPOBTED.
PAOI.
Panha Khnmaji v. Fatta Upaji-Eucution-Sale-Oontut be-
tween two rival auction purchase1·11-0ertijicate of aale-
.A.ct VI II. of 1859, Sec. 259-Regiati-ation-.A.ct XX. of 1866,
Sees. 18 & 50 ... 179
Punja Pallan v. Shekh Adam Abdula-Stamp-Document-Evi-
d~.A.ct XVIII. of 1869, Seu. 5, 18, and 28 . .. . .. 209n
Reg. v. Ramdas Snmaldas-H~h Oourt Cri11iinal Procedure .Act
(X. of 1875), Seu. 115 and U7-Certiorari-Order of refer-
ence-Act XIII. of 1856, Sec. 36-0rder for delivery of p1·0-
p~ty-Examination of witnuaea ... ... ... . .. 217
Reg. v. Tuka.ram Ragho-0.ffence not trio.bk by Subordinate Magia-
trate-Power of D&Btrict Magiatrate to annul conviction-
Orim,inal Proceclu,·e Code, Sees. 284 and 297 •. • ... . . . 234
Sarstedt v. The Agra Ba.nk-Regimen.tal Debta' .Act 1868 (26 and
27 Vic., c. 57), Seca. 3, 4, 5, 6, 7, 8, 10, 12, 22 and 85-Boyal
Warrant, OlaWJe 17-0ommittee of .Adju.tmfflt-Notice-
"Per,on ,,-Bmia fidu .. . ... .. . ... .. . ... 268
Savitriava "· Anandrb-Watan-Partitio-n, of watat.-Ceaaation,
of duti,11 attached to watan .. . .. • •. • .. • . .. 224
Shapurji Jah6.ngirji v. The Superintendent of the Poona City
Jail-Limitation-Act IX. of 1871, Sek. IL, Ol. 63, 84",
and 95-Suit on an indemnity bond-Fraud-Cauae of action. 238
Shivji n,B8,m v. Datu Mavji-Bombay Minora' .Act (XX. of 1864"),
Sec. I-Bengal Minors' .Act (XL. of 1858), &c. 2-.Age of
niajority-Oharge of 1tiinor11' property-Ouatom among Khoju
-Joint Hindu family . . . ••• •. • . .. ••. ••• 281
Sonbji Nasarvanji Dnndu v. The Justices of the Peace for the
Citr of Bombay-Bombay .Act II. of 1865-1.jectment-Limi-
tatwn-Acquiaition of land for pubZic purpoaea-Oom.pen,ation
-Meane projita . . . ... •.. ••• ••• ••• . .. 250
Va.rajlal Sbivl,1 11. Dalaukh Ve.ra.jlal-Oontmct-00n.tideration-
COf1&prom.iae ..• ... . .. ..• . .. ••• . .. 196
Vithoba bin Che.bu v. Ganga.ram bin Bire.mji_:Mortgag8-Bedemp-
tion-Adt1erae po68eaa-ion-Limitatwn-~ct XIV. of 1859,
Sec. 1, Ol. 15 •. • •. • 180
Vrandava.ndas Ramd'8 v. Yam.unaW.i- Undivided Hindu family-
Gifl-Maintenance-Ooncubi11e . . . ••• •. • ..• .. . 229
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£or the creation of a.n interest in immoveable property. 1876.

----
In the case reported at 14 Moore 1 A. 179, the docu- JosAB HA'Jt
JA'FAR
ment was an instrument acknowledging the payment of 11•
the entire purchase-money. I must, therefore, rule that M~~~~~.

the document in this case is not one that needs registration,
and is, there£ore, admissible in evidence.
SpecialAppeal No. 278 of 1874. June 9.
P.rnHA' Kamun ........... .Deferulant and Appellant.

FATTA' UPA JI ............ ...... Plaintiff and Respondent.
1
Ezecution-Bak-C<mtut bdt/Jlln tl/JO rival auction purclu:ut.rs-Ctrtijicau.

efaale, Act V/Il.o/1869, Sution 259-Regi,tra.tion Act XX. qf 1866, Section.I
18 a.11d50.
Plaintiff and defendant were two auction purch&11ers. Plaintiff'• purchase
was prior, but hia eertiftcat.e of aale was not registered. Defendant'• pur-
cbue was subsequent,. but be was in posaeasion, and his certificat.e was re-
gistered. Registration was optional in both casea. In a contest aa to prio•
rity between plaintill' and defendant,
lldd that under the pn>visions of Aot XX. of 1866 1 Section'. 50, the de-
fendant's title mnat prevail against that of the plaintiff.
THISCrowe,
was a special appeal from the decision of W . H.
Assistant Judge at Thana, reversing the deci-
sion of the Subordinate Judge of Penn.
The material facts in this suit, which was instituted by
Futta Upaji against Panha Khumaji to recover ~ertain im-
moveable property, are these :-The property in disp1:1te ori-
ginally belonged to one Posha Aha, and was, on the 11th
Novemb1:;r 1868, sold in execu\ion of a decree against him
and purchased by the plaintiff Futta Upaji. A certificate of
sale was granted to him under Section 259 of the Civil Pro-
cedure Code, but was not registered by him. The property
was again sold in execution of another decree a.gamst the said
Posha, and was, on the 17th November 1869, purchased by
the defendantPa.nha Khuma.ji, who took possession, and got
his certificate of sale registered. Both the sales being for
less than Rs. l 00, registration was optional under Act XX.
• 622-a
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1875. of 1866, Section 18. The Court of first instance dismissed

PANHA the suit on the ground that defendant's claim was stronger
KHCMAJI
v. than that of the plaintiff. In appeal, however, the Assistant
4
FuTr UPu,. Judge reversed that deoree, and awarded the plaintiff claim
on the ground that his purchaae was prior to that of the defen-
dant, and that, therefore, at the time of the sale to die latt.er,
Posh& Aba ha.d no title left in the property sold.
The special appeal was argued before KEKBALL and
1
NA NA BHA I HARIDA's,
1 1
JJ.
Dhirajlal Mathuradas (Government Pleader) for the ap-
pellant.
Shantara1n Ndrciyan for the responde11t.
KEMBALL, J. :-We must reverse the decree of the lower
Court and restore that of the Court of first instance. We
have a. contest between two auction purchasers. The defend-
ant, though his purchase was subsequent, is in possession,
and his certificate of sale, which, un.der Section 259 of the
Civil Procedure Code, is his title-deed, is registered. Where-
as, the plaintiff, though his purchase was prior, failed to
have his certificate registered. Registration was optional
in both cases ; therefore, as each of the parties must depend
on his certificate, it follows, under Section 50 of the Regis-
tration Act, that defendant's title must prevail. Decree of
the lower Court reversed with costs on respondent.
2nne 14. Special Appeal No. 263 of 1874.

VITHOBA' BIN CHABU (Original Plaintiff) ... Appellant.
GANOA'RA'M BIN BrnAMJI {Defendant No. 6) Respondent.
M ortgage-Rukmption--.Advertt po,,usion-Limilation, ..tct XIY.q/ 1859,

Bt.ctioft 1, Clavae 16.
A mortgagor aued his mortgagee to redeem, joining u defendant the penon
in poaaeuion of the mortgaged land, who claimed to hold adverael1 to both
the mortgagor and the mortgagee,
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BOMBAY RIGH COURT REPORTS-, l8t
Hdrl that the poasesaion of the last defendant being a trespass, not on the __ !~
poase88ion of the mortgagor, who had only the equitable estate, but. on the VITHOBA'
possession of the mo~agee, in whom the legal estate waa vested, and the BIN CHABu
person in possession not pretending to be a b&nd fide purchaler Crom the G 11 ', ,
ANOARAM
mortgagee, he did not come within the exception in Section 5 of' Act XIV. of BIN BIR.Ur.JI.
1859; \ha~ the treep1188er oould only mcceed to such estate as the mortgagee
po88essed ; and consequently that the limitation applicable to the suit as
against him was sixty years, according to Section 1, Clanse 15, of Act XIV,
of 1859, the effect of which ie not altered by any hostile. pouession com-
menced on a title independent of the mortgage.
THIS was a special appeal from the decision of G. Druitt,

Acting Assistant Judge of the District of Khandesh at
Dhulia, reversing the decree of the Subordinate Judge of
J alga.m in the same district.
The material facts of the case are briefly these :-The plain.-
tiff alleged that in 1837 a piece of land was mortgaged to
the ancestors of the first five defendants ; that the sixth de-
fendant was in possession of it; and prayed for redemption on
payment of what might be found due. The first five defend-
ants a.dmitted the mortgage ; the sixth denied all knowledge
of it, and set up a title of his own irrespective of it.
The Court of first instance decreed redemption ; that of
appeal rejected the suit, holding it barred by the Limitation
Act.
The- special appeal was heard by Kn:BALL andl NA NA lnIA'r
1 1
H.ARIDA' s, J J.
Dhirajlal Math1mul,as,_Government Pleader, for the ori-

ginal plaintiff (special appellant).-The lower Appellate
Oourt was wrong in holding the suit barred. Under Section
1, Clause 15, of A.et XIV. of 1859 the plaintiff as mortgagor
can sue to redeem within sixty years. The only exception
to the rule enacted in the provision occurs in Section 5
in favour of bond fade pnrcha.l!ers for valuable consideration
from mortgagees.
. Ganesh Hari Patw(l'1'dhan for the sixth defendant, the
special respondent.-Theplaintiff and the _first five defendants
have colluded together to defraud the sixth, who has been
found to be in possession for more than twenty years.
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182 EOIIBAY HIGH COURT REPORTS,
1875. KEKBALL, J. :-This is a redemption suit. The first five de-

v JTHOBA fendants represent the original mortgagees, and the sixth is
BUI CIUBU
v. in present possession. Both the Courts below have foun d
GANBoA'RA'H that the land in dispute was the propertv of the plaintit'f,and
BIN JRAllJI, , .#
that he mortgaged it as a security for the loan of certain
monies in .&..D. 1836. The Court of the Subordinate Judge
farther found that the five first defendants had leased the
said land to the sixth, and decreed redemption on certain
conditions; whereas the Assistant Judge held that there waa
not sufficient evidence o! this letting, and he dismissed the
suit with these observations :-" The land has been in his
(defendant Gang6.ram's) possession considerably more than
twenty years. His possession is adverse both to the mort-
gagor and to · the mortgagees, and the claim seems to me to
be barred. There is no privity whatever between him and
the mortgagees. Certainly no suit could be . maintained
against him by the mortgagees, and I do not see how the
mortgagor can have a better right than they. There is
equally a want of privity between the mortgagor and defend-
ant No. 6 as between the mortgagees and him. The mort-
gage, therefore, does not avail the plaintiff, and the snit is
barred by the law of limitation." ·
The sole question raised in special appeal is, whether the

Assistant Judge was right in thus holding the plaintiff's
right to redeem, barred.
The case at first sight is not without its difficulties, bot

these disappear when we come to consider the position of
the mortgagor and of the mortgagees in their respective
relations to the sixth defendant, whom the Assistant Judge
holds to have been in adverse possession throughout as
against both. It may well be that a mortgagee, in whom
the legal estate is VEZsted, may lose, by lapse of time, his
right to recover possession of his security as against a tres-
passer; but it is difficult to understand bow there can be
any trespass on the mortgagor's possession so long as he baa
only the equitable estate. A mo.tgagor is allowed a period
of sixty years within which he may come in to 1·cdt..>em ; an
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BOMBAY 111GB COURT REPORTS, 183
exception to this rule is made in favour of bona Jule purchas- 1875.

ere for valuable consideration from the mortgagee, where V1THOB4'
Bll!I CHABU
the term for redeeming is considerably abridged ; but in all v.
other cases it appears to us to make no difference how the GANBoA' RA'x
BIN J.RAMJI,
hostile possession has commenced, whetherthrough the fraud-
nlent connivance, or through the neglect, of the mortgagee
who :IB bound to preserve the property. The trespasser, as
the sixth defendant has been found by the Assistant Judge
to be, can only succeed to such estate as the mortglgee pos-
sessed, and we fail to see how the circumstance that the
hostile possession is alleged to have commenced on a title
independent of the mortgage, can alter the effect of Clause 15,
Section 1, of Act XIV. of 1859, which is the law applicable
to the case. We must, therefore, hold that the plaintiff was
not barred from establishing his claim to redeem by reason
of the so-called adverse possession of the sixth defendant ;
and we accordingly reverse the decree of the lower Appellate
Court. We find, however, that the Court of first instance
has decreed redemption on payment, to the first five defend-
ants, of the mortgage money; but they have parted with
their security. We must, therefore, a.mend his decree, and
we direct that the plaintiff do pay to the defendant Ganga-
ram the sum of Rs. 58-5-3 (found to be due) within six
months of this date, and that the said defendant do, on pay-
ment of the said sum within .the time prescribed, remove hie
hut and deliver possession of the land in dispute; and wo
further direct that, in the event of the plaintiff failing to pay
the said sum, within the. time specified, to the said defendant,
he be for !3VOr foreclosed. Costs of this appeal on the special
respondent.
Decree accordingly•
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'184 BOMBAY HIGH COURT REPORTS.
[ ORIGINAL CIVIL J URISD.ICTION,]

1875,
June 28 Suit No. 371 B. of 1869.
M. A. DE SouZA ........................... ...... Plaintij-'

foNAOIO FRANCISCO DE SouzA and others .... Defendants.
Will-Truat-&eculor-lnvestment-Sharu-Oon:oeraion-Liability of an
U£.cuto,yn Bombay to make good. the l-Osa occasioned to the estate by his
negkct to convert the aha.re& owned by hi, teatator.
The rules and decisions of the Court of Chancery in England, relative
to the duty of an e:recutor to convert in the absence of any special direction
to that effect in the will, do not, without great qualifications, apply in the
High Court of Bombay, and the Supreme and High Courts of Bombay liave
not, by any general rule or uniform practice, adopted any Government
security accessible to a priTat.e executor or trustee in such manner aa to
form an authoritative guide to him in his administration of the estate.
Therefore, where the will of a Portuguese testator contaiaed no 1pecial

direction for conversion, nor any sufficient indication of an intention on the
pari of the ~tator that the residuary devieees and legatees should enjoy
the residue successively in BpUie, so a1 to exempt the executors from the
dot, of conversion, and the executors did not convert certain shares belonging
to their testator, which subsequently became much depreciated in value1
lleld that the e:reoutors were not liable for the loss ao occaaioned· to the
estate of the testator.
M ANOEL de Souza, a Portuguese, died on the 2nd Feb-

ruary 1862, having previously me.de his will, bearing
datethe 1st March 1860, by which instrument he appointed
Antonio Domingo de Soum-his eldest son, one Francis
Fernandes, and the first defendant Ignacio Francisco de
Souza (his nephew), his execul:.ors. Francis Fernandes, one
of the executors, died on the 20th May 1867, and· the 80Il,
Antonio Domingo de Souza, on the 24th July 1867. This
suit, for the administration of the trusts of the will, was then
instituted by Manoel Antonio de Souza, the grandson of the
testator and a legatee and devisee under the will, age.inst the
surviving executor and the legal representatives of the two
deceased executors, with the object of ma.king chargeable the
surviving executor, Ignacio Franpisco de Souza, and the
est.ates of the deceased executors, Antonio Domingo de
Digitized by Google
Souza and Francis Fernandes, with certain alleged breaches~!~--
of trust on the part of such executors in relation to their M. A, Ds
administration of the testator's estate. SouZA
v.
IGNACIO
A reference wa.s made to the Commissioner to ta.ke the FRA Ncisco
DE SOUZA,
accounts of the estate, and in the course of the investigation
before him an account No. I, entitled "an account of the
personal and moveable estate of the testator, Manoel de Souza,
deceased, come to the hands of Antonio Domingo de Souza,
deceased, late one of the executors of the said testator,'' was
exhibited by the defendants Leopoldina de Ga, Francis
Xavier Pereira., and Joseph de Silva, as the executrix and
executors of the said Antonio Domingo de Souza. To this
account the plaintiff filed a surcharge, claiming to be credit-
ed, in such account, against the estate of Antonio Domingo
de Souza., with two sums, Rs. 4,092 and Rs. 36,046 respect-
ively, the first being the value of 44 shares of the Charter-
ed Mercantile Bank of the nominal value of Rs. 11,000
together with the premium,as of the 28th February 1863, at
Rs. 93 per share (viz., Rs. 4,092), after deducting Rs. ·11,000
adtnitt.ed in the account, and the second being the value of
36 shares of the old Bank of Bombay, namely Rs. 36,000
(the nominal value of the shares) and premium as of the 28th
February 1863 at Rs. 93 per share, but deducting Rs. 3,302
received in respect of such shares by the receiver in the suit.
The Commissioner disallowed these two items of surcharge,
and at the request of the plaintiff's solicitors certified such
disallowance on the 23rd March 1875. The matter then
came before the Court in the form of a motion on behalf of
the plaintiff to reverse or vary the finding of the Commis-
sioner on these two it.ems as contained in his certificate.
Latham, for the plaintiff, in support of the motion.
Pigot, (with him Farran,) for the defendants, contra.
G&uN, J. :-It was contended on the:part of the plaintiff's
counsel that the Commissioner ought to have allowed these
items of surcharge on the ground that, having regard to the
provisions of the will of tli,e testator and to the general rule
of law applicable in this behalf, it was · the duty of the exe-
Digitized by Google
186 BODAY HIGB COURT REPORTS.
- - cntore of Manoel de Souza to have sold and converted the

1875.
--
:M. A. Dx bank shares, which the testator held at the time of his death,
Souu
11• within a reasonable period, say a year after such event, and,
J:!!~ loss having, by such neglect and by reason of the depre-
D.s Souu. ciation in value of the shares so retained unconverted, oc-
curred to the testator's estate, that the surviving executor
and the estates of the deceased executors (amongst which
was that of Antonio Domingo de Souza ) were bound to
make good such loss.
It will be desirable, in the first place, to state the provi-
sions of the testator's will which have any possible bearing on
the question at issue. After bequeathing divers pecuniary
legacies and giving an annuity to a widowed daughter '' to
be paid by his executors out of the income of the residue of
his property,'' the testator desires his executors to invest
Rs. 10,000 in the purchase of Government promissory notes,
and directs the income to be paid to a grand-daughter,
Angela, for life, and after her decease to her children. The
testator then devises certain specified immoveable estate
to sons and grandsons, charging certain portions of it for
certain religious or charitable purposes. The only portion
of these clauses, relating to his real estate. which may possi-
bly be material, is contained in the clause enabling his trus-
tees, in the case of the minority of any of the devieees, to
apply such part of the net balance of rents and profits as the
trustees think proper for the maintenance and advancement
of such minor, and " to accumulate the residue of the said
rents and profits in the way of compound interest by in-
vesting the same and all the resulting income thereof in ~he
names or name of the said trustees or trustee, with power to
vary the same at their or his discretion,'' &c. The testator
then bequeaths to his trustees '' the sum of Rs. 20,000 in-
vested in Government promissory notes '' upon certain trusts
for two of his grandsons and their children. He then be-
queaths to his trustees "the further sum of Rs. 10,000, in-
vested in like Government promissory notes," upon certain
trusts for the benefit of certain great-grandsons and their
children, and" the further sum of Rs. 10,000 in like Gov-
Digitized by Google
BOMBAY HIOll COURT REPORTg, 187
emment promissory notes " upon certain trusts for the 1875.
----
children of another grandson. The will then proceeds : M. A. DE
SOUZA
" And as to all the residue of my property after payment of 11•
the legacies hereby bequeathed, my just debts, funeral itnd 1 J~:..:i:CO

testamen1la.ry expenses, I give, devise, and bequeath the same Di,; Souu.
unto the said Antonio Domingo de Souza, Francisco Fernan-
des, and Ignacio Francisco de Souza; their heirs, executors,
and administrators, upon the following trusts, that is to say,
upon trust that my said son, Antonio Domingo, shall be per-
mitted to receive the income thereof for his life, and, after
his decease, upon trust to pay the said income to my- said
grandson, Manoel Antonio de Souza (i.e., the plaintiff), for
his life, and, after his decease, upon trust to hold the said
residue and the annual income thereof for all the sons or
· any the son of the said Manoel Antonio de Souza. who ¥tall
survive him and attain 21 years, and, if more than one, in
equal shares." Then follow provisions for the case of default
of issue of Manoel Antonio.
The will, in providing for the minority of persons taking
under the residuary disposition, (amongst other things) pro-
vides that the trustees should, in the case therein mentioned
of the minority of a devisee, accumulate the residue of the
annual income (after providing for maintenance, &c.,) of the
share or interest of such minor " by investing the same and
the resulting income thereof from time to time in or upon
any such investments as are hereinbefore mentioned." 'rho
will, in giving expre~s powers to the executors witl1 re-
ference to getting in, satisfying, compromising, and taking
security for, any debts or liabilities of the estate, gives them
authority "generally to act in regard thereto as they shall
think expedient without being responsible for any loss there-
by occasioned." Then follows a clause making the receipt
of the acting trustees or trustee a. good discharge "for the
purchase money of premises sold or for any moneys, fnnds,
shares or · securities which may be paid or tra.nsferred
to them or him in pursuance hereof of any of the trusts
hereof." The will concludes with clauses providing for the
appointment of new trustees.
B 622-l,
Digitized by Google
1~8 BOMBAY HIGH OOURT REPORTS.
}875. I
Though not ·providing for any investment of the res-illae
M. A. DE generally, the testator does, as we have seen, provide for the
SOUZA
investment of accumulations in the case of minors taking
"·
IGNACIO under the residuary disposition "in or upon any such in-
FRANCISCO
DESOUZA, vestments as are hereinbefore mentioned," though what this
. may refer to, is by no means clear. The only investment

specifically mentioned "is Government promissory notes ;
though the testator had, according to the construction
which I put on his will in a previous clause, authorized the
investment of accumulations of rents and income of real
estate specifically devised "at the discretion of the trustees
or trustee". Lastly, in the receipt clause, it will have been·
'observed, the testator seems to have contem:nlated the acqui-
8ition by the trustees of something more than Government
promissory notes, as he provides that their receipt shall be a
discharge for (inter a,lia) "moneys, funds, shares, or securi-
ties" paid or transfei:red to the trustees, though nowhere do
the _trusts of the will ex[>'ressly authorize the transfer to the
"trustees of shares.
It will be seen that the will contains no directions as to
the kind of securities ii:t which the residue of the testator's
property is to be invested, nor, indeed, except in a pnrticular
state of circumstances, any direction at all for its invest-
ment. In fact, the only express direction as to the kind of
investment is the one in the early part of the will with
relation to the Rs. 10,000 bequeathed to his grand-daughter
Angela. The gifts, in a subsequent part of the will, of Rs.
20,000, Rs. 10,000, and Rs. 10,000 for certain of his grand-
sons and great-grandsons are, it will have been observed,
not of sums to be invested in Government securities, but of
sums apparently already invested and held by the testator in
such securities. TJ,i.e power to invest the accumulations of
income of real estate, in case of ths. minority of a devisee, is
_ very general, and the words '' at their or his discretion'', in
my opinion, refer as much to the first investment of such ac-
cumulation as to the subsequent varying of such i:nvestments
when made. This construction seems to me to follow from
the consideration that othe~wise (that is to say, if the
Digitized by Google
BOHBA Y HJOH COURT REPORTS. 189
trustees were restril'fed to one form of investment, viz., Gov- 1875.

ernment promissory notes) what effect could be given to -M~ A.~
.
th e wo rds to vary sueh mves t ment, w h en t here 1s
. only one SOUZA
,,_
investment which can be resorted to? The gift of the residue FlosA<.'IO
'RASCISCO
,of the testator's property to the trustees, it will have been DE Socu.
<>hserved, is unaccompanied by any direction or power to
invest the same ; the first trust on which it is to be held, is·
tha.t hig son, Antonio Domingo, sha.ll be permitted to receive ·
the income tMreof.
In the Engli~h Chancery there are several rules relative

to the matter now under consideration which have been es-
tablished by a course of decisions. 'fhese ruleR have, how-·
ever, to a certain extent been modified by a recent statute,
as will be hereaftar mentioned. Unless the residue of the
estate of a testator, after satisfying debts, can be at once
distributed to trui objects intended to take beneficially, it is
the duty of the executor or trustee of the will to invest such
residue on some proper security so as to yield income. In
cases wh0t'e the residue is given for life, with remainders
over, it is further hi'> duty, in the absence of special provi-
sions, to see that the funds be not only properly invested
as to security, but also that the securities be of a permanent
and not perishable or terminable nature, so I.hat those in
remainder may, as nearly as possible, have an equal benefit,
in respect of income, as those in immediate enjoyment.
Where any particular s13curities or class of securities a.re in-
dicated by the creator of the trust as the mode of investment
intended by him, the executor or trustee will not be justified
in going beyond such mode of investment from any belief,
well founded or otherwise, of thereby benefiting the cestuis
que t'1"t.U/,en,t. In the abs.ence of any power exp·ressly given by
the will, it is the generaJ duty of an executor to adopt, as
the mode of investment, one of the Government !Jr bank
annuities as answering best the reqnisites of security and
permanance~ and the proper one to select is that in which
the Court itself has been in the practice of making the
investment of the monies of suitors, viz., the 3 per cent.
Digitized by Google
1875. conBOlidated bank annuities. If property is found, at the

----
M A. DE death of the testator, in a state of investment other than
SOUZA
v. Government 3 per cent. consolidated annuities and not corre-
F~o~~~~ sponding with that authorized by any express provision of
D11 8ouZA. the will, the executor or trustee, within a reasonable time,
is bound to convert it · and place it in the state authorized.
If no special mode of investment is expressly authorized, it
is the general duty of the executor or· trustee, by investment
of such property as is not invested at all and by sale and
conversion of such as is already invested, to place the estate
in such state of investment as the Court, as general trustee,
would place it, i.e., in 3 per cent. consolidated annuities; and
the period from the testator's death, within which the Court,
by a. rule of convenience, considers the conversion may and
ought in general to be made, is twelve months. When, how-
ever, a residue is given to several in sucoession in such terms
as to indicat,e that the testator intended that they should
successively enjoy the income of the property in specie and
as it was at the testator's death, then the duty of conversion
into 3. per cent. ceases, and the executor or trustee may, and
is in fact bound to, retain the property, or such portion of it
as was in fact investei in the state of investment it happen-
ed to be at the testator's death, and this whether or not
such state of investment was such as, in other circumstan-
ces, would have been considered secure and permanent. An
executor or trustee, investing any portion of the estate in a
way not authorized by the will and not being a way which
the Court itself is in the habit of adopting for its invest-
ments, is held liable to make good to the cestui que tru.at
any loss occasioned by such breach of duty. Further, where
an executor or trustee is expressly directed to convert
the estate either immediately or within a reasonable time,
and he retains investments, made by the testator, without
reasonable excuse, he will be charged, in case of loas or de-
preciation, with the amount which such investment would
have produced if disposed of_at the time when the Conrt, in
the particular case, deems that the conversion ought to have
been mi.de. These rules and principles are amply illnstrat~
Digitized by Google
ed ·by the cases of Howe v. the Earl of Dadmoiith (<i) a.nd 1875.
- -
Brice v. Stokea, (b) and the notes to those cases in Vol. II. of M.A. Di:
--
Souu
White and Tudor's Leading Cases in Equity. I do not find, v.
however, among the cases there cited, any case, and the F!:~;:
0
learned counsel for the plaintiff admitted that he had not Ds Souu.
been able to find one, where, in the absence of an express
direction in the will to convert, an executor or trustee had
been held personally liable to make good the loss occasion-
ed by the mere retention of an investment held by the tes-
tator a.t the time of his death. The question, however, bas
arisen and been discussed in several of the cases, and the duty
of the e~ecutorortrustee to convert in that case also has been
laid down, but in those cases it was not sought to fix the exe-
cutor or trustee with personal liability, but rather to appor-
tion the benefits which had a.risen from non-conversion as
between those entitled for life and those in remainder, as if
such conversion had taken place. Though the present case,
which is one of seeking to make the estate of Antonio
Domingo de Souza immediately liable for a neglect or omis-
sion to convert the shares in the old Bank of Bombay and
the Chartered Mercantile Bank, may not be exactly covered
by any actual decision, I cannot but be of the opinion that,
had the case a.risen in the English Court of Chancery,
Antonio Domingo de Souza would not have been held justi-
fied in retaining, as he did, these shares from 1862 down to
the time, at least, of his own death in 1867. I say Antonio
Domingo de· Souza, and not the executors generally, as the
question here immediately arises with refrence to a sur-
charge on the estate of Antonio Domingo de Souza, and I
have no materials before me to form any opinion, and do not
express any, as to any question of liability of the first defend-
ant and the estate of Francisco Fernandes for this matter.
I may here mention also that I must treat this case on the
footing that there is no sufficient indication of intention on
the part of the testator that the residuary doviseesa.~d legatees
should enjoy the residue successively in specie, so as to
exempt the executors, on this ground, from the duty of
(a) 7 Vee. 137; seep. 151. (b) 11 Vee. 319.
Digitized by Google
192 BOMBAY BIOH COURT REPORTS,
1875. conversion. I think the case of Tlt&nton v. Ellis(c), andn<1t

M. A. Ds Boys v. Boys (d), is applicable in this point.
Souu
11. But it has been argued that, whatever may be the rule or
IGNACIO
FSANCIBCO whatever would have been the decision of this case in the
Ds Souu.
Court of Chancery in England, there is no instance to be
found of the application of such rule in the Indian Presi-
dency Courts as is here sought to be applied in charging
the estate of the executor. There are further, in my opinion,
certain considerations which appear to me sufficient to make
this Court hesitate, for the first time, to apply the principle
sought to be enforced here. Had there been any express
trust or direction in this will to convert the residua. and
invest it in any particular way, there would, of course, have
been little difficulty in the case. Though the executors
would, in that case, have been allowed a reasonable time and
a certain period of delay within which, in the exercise of
their discretion, to. proceed in the operation of conversion,
yet I am of opinion that, with the express directions of the
testator to guide the executors, a delay of four or five years
would not have been excusable. But here we have a case
of absence of any ·trust or direction to convert and invest
the residue ; and the fa.et of the absence of such trust or
direction, in relation to the residue, may be considered to
have some additional importance from the fa.et that, in respect
to one particular legacy, that of Rs. 10,000 to his grand-
daughter Angela, the testator does give directions as to in-
vestment in Government promissory notes.
The considerations, however, which I have mentioned as
ma.king me hesitating in applying to the present case what
probably would have been the rule applied, had this been
dealt with by the Court of Chancery in England, are the
following :-The practice of the last-mentioned Court in
investing the monies of suitors in its hands in 3 per cent.
consolidated bank annuities has been treated by that Court
as furnishing a rule or example by which trustees and exe-
cutors should, in the absence of special directions by the
creator of the trust, govern their conduct in respect to the
(c) 16 Beav. 193. (d} 28 Beav. 436.
Digitized by Google
investment of the trust estate. It must, however, be remem- I8i5.

bered that the practice of the Court in making such invest- _.M_A_D_ ' • B
ment had been long established before the rule wa.s estab- Souu
lished, or at least in force ; and the fact, that such practice loN.&.010"·
FRA.:-rc1sco
had been loTJg established and notorious, was treated as the D.1 Sou7.A,
ground for imposing on executors and trustees, in the ab-
sence of special provisions in the instrument appointing
them, the obligation of pursuing a like course. The rule it-
self, however, wa.s of gradual growth, though it may be con-
sidered to have been established in England for upwards of
a century. Had the circumstances of India been the same
in respect of this matter as those of England, I should not
have felt the difficulty I do in applying the rule of English
Equity Courts .to this matter, even though no reported
precedent may be producible of its application by the
Supreme or High Courts of India. Though, no doubt,
there have been public securities, which may be treated as
Government securities, in existence in India for a very
considerable period, ( I do not here, of course, refer to the
capital stock of the East India Company,) they have, to by
far the larger extent, ·been the creation of the present cen-
tury and in fa.et of the last twenty-five years. In conjunc-
tion with this I do not find that it has been, by any means,
the uniform practice of the principal Court of original
jurisdiction in Bombay to invest the monies- of suitors
in such funds. From some official correspondence, with
which the Acting Accountant General, Mr. Gordon, has
obligingly furnished me, I find that previously to 1814
the Recorder's Court used to deposit suitors' monies in the
Government Treasury, the Government allowing interest on ·
such deposit. In 1814 the system was altered by reason of
the Government declining any longer to allow interest on
such deposits. Then for some years the practice appears to
have existed of the Recorder's Court directing the Account-
ant General to invest such deposits in Government securities,
but st-ill oftener to lend them out, at interest a.t a. variety of
rates, to individuals on the security of Company's papers
deposited with him. In 1820 the former system was revert-
•
Digitized by Google
194 BOVBAY HIGH COURT REPORTS,
1s7s. ed to, of the Government rec~iving such monies as deposits

.M. A. D.11: in their Treasury and a.Jlowing interest at 4 per cent. This
Sot.TZ.t.
"· system received express recognition by the charter of the
..!._o_N.a.cro
.rKANCISCO
8th December 1823, establishing the late Supreme Court.
D& Sovu. By one of the later clauses of this charter it,. is provided
that all monies, securities, and effects of the suitors, paid
into Court, are to be paid to or deposited with the Governor
or President in Council at Bombay to l?e by them kept and
deposited with the cash and effect.q of the Company1 and
power is given to the Court of Directors to appoint an
Accountant General of the Court to execute and carry into
execution the orders of the Court relating to the payment
and delivery of suitors' money, effects, and securities, and
ta.king them out again, and keeping the accounts with the
Governor and Council and Registrar of the Supreme Court.
The correspondehce, which I have mentioned, shows that this
system of deposit ai interest in the Government Treasury
was in existence in 1837, and, so far as I can learn by
inquiry, was in existence down to a much later period, and,
so far as I can discover, is the only specific mode which has
ever been sanctioned by any provision of a charter or Act
of the Legislature, or general rule of Court, for the invest-
ment of the monies of suitors in the hands of the Court. I
say a general rule of Court, as there is no doubt that, for a.
considerable period (the commencement of which, however.,
I have not been able to discover), it has been the practice
of the Court, by its decrees and orders in each particular
suit, to direct the Accountant General to invest funds, paid
in to the credit of such suit, in promissory notes of the
Government of India.
The rnles of the Supreme Court are, it appears, quite

silent on this head. The Indian Succession Act of 1865
(which, however, would not be applicable to this will) con-
tains provisions, . Sections 301-307, with regard to the
duty of an executor as to investment. The language of
these sections seems to me ~ther to imply that, at the time
of passing the Act in 1865, $e High Courts had not, in
....
fact, by any general rule, indicated any secnrities as the 1875.
----
proper ones for investment by executors; and I am not M. A. Di:
aware that the High Court of Bombay has, ever since that So:~
time, by any general rnle, given any authoritv .I
or direction IGNACIO
F'RANCil!CO
with regard to class of permissible investments. I consi- Ds Souu.
der, therefore, that the statement is supported by the
&.et~ that down to the present day the Supreme and
High Courts of Bombay have not, by any general rnle or
uniform practice, adopted any Government security acces-
sible to a private executor or trustee in such manner as to
form an a.nthoritative guide to h{m in his administration of
the estate. I say a.ccessible·to a private executor or trustee•
for the reason that, though a deposit at interest in the Gov-
ernment Treasnry may be said to be equivalent, in regard
to security, to investment in promissory notes of the Govern-
ment of India., yet it ha.s not been a mode of investment
available for an individual trustee or executor in the absence
of a suit in Court, and, on this account, such individual
trnstee or executor conld not, if he would, as in England,
take as his exam~e the practice of the Court. It is also to
be observed that, at the time of the testator Manoel de
Souza's death in l 862, the rule in England had been con-
siderably modified by Section 32 of 22 and 23 Vic., c. 35, and
the section was ma.de retrospective by Act 23 and 24 Vic.,
c. 38, s. 12. By this provision, trustees and execntors may,
in the absence of express prohibition in the instrument of
trust, invest trust funds in, amongst other things, Btock of
the Bank of London or Ireland or in East India stock. By
this provision the principle of requiring trustees and exe-
cutors to invest in Government securities was departed from,
for it may be observed that stock of the Bank of England or
Ireland are no more Government securities than were shares
in the old Bank of Bombay.
I am not, in the present case, in any way pressed by tile
consideration of the necessity of providing a. rule for the
future guidance of executors, as that object will be attained
so soon as the High Court may exercise the powers, con-
ferred upon it by Sections 301-307 of the Indian Succession
B 622-c
•
Digitized by Google
196 BOKBAT HIGH COURT REPORTS;
187/i. Act, of making genera.I rules which will be a guide to exe~

- - -- -
M. A. DE cutors in this matter, and I intend to call the attention of
Souu.
v. the Chief Justice and my colleagues to ~he necessity, as
foNACJO
FRANCll:ICO
shown by the present case, of at once framing such rules.
DzSouu. For the foregoing reasons, and chiefty having regard to
the fact that the circumstances, by reason of which the rules
in question have been imposed on executors and trustees in
England, have not existed in India, I feel so much difficulty
in the absence of any precedent, in declaring them applic-
able in the present case, that I must refuse the motion to
vary the Commissioner's certificate, and do confirm the same.
· It is no~, in my opinion, a pro~r case to make an order as to
costs of the motion, except that the parties respectively do
bear their own.
[ APPELLATE CIVIL JURISDICTION:]
J11ly 8. Application under E.clra01'dina1:1 Jurisdiction.
VARAJLA'L SHIVLA'L •.• (Original Plaintiff) Applicant.

DALSUKH VARAJLA 1 L .•• ( Original Defendant) Opponetit.
· Contract-Oonrideration-Compromile.
"'hen a claim is once compromieed, and a new contract entered into, the
promisor ie estopped from pleading illegality or absence ·of consideration
for the new contra.et, the real coneideration for it being the withdrawal of
the claim itself, irrespective of the pouibility of ita being proaecnted to a
successful issue. The new contra.et can only be questioned on Uie groand
of fraud, such u want of good faiUi in 'Dl&king Uie claun oomprornieed.
THIS was an application for the exercise of ~he High
Court's extraordinary jurisdiction. The plain,tift"s claim
was rejected by the Subordinate Judge of Kapadwanj, and
on appeal to the District Judge this decree was confirmed.
The application was beard by KEMBALL and LARP&NT, JJ.
•Nagindas Tid.si.das for the applicant.
Gokal.das Kahandas for the opponent.
The facts fully appear from the following judgment of the
Court delivered by
Digitized by Google
l!IODAY moB COURT REPORTS. 197
1875.
KElllBALL, J. :-This is an application for the exercise of
VARAJLA'L
the Court's extra.ordinary jurisdiction, there being no special 8HIVLA L 0
v.
appeal, as the a.mount of the suit was less than Rs. 500. DALSUK
VARAJLA'L.
The facts are short and simple, though the question sub-
mitted for our consideration is one of some importa.nce.
The plaintiff in the present suit, it appears, brought an
action, in 1867, on t\ie original side of the High Court, t,o
recover, from the pi,esent defendant, moneys alleged to have
been pa.id for him at his request. Subsequent to the insti-
tution of the action a compromise was entered into between
the parties, the defendant promising, in consideration of the
withdrawal of the claim from Court, to pay to the plaintiff
a sum of Rs. 901 by instalments. Certain of these instal-
ments having remained unpaid in 1873, the plaintiff brought
this action to recover the amount due with interest. The
defe~dant, in answer, admitted execution of the deed of com-
promise, but objected that the consideration was not legal,
as the deed passed was for sums supposed to have been paid
to persons in Bombay on satta or gambling transactions,
that he did not know whether the sums had really been
pa.id, and that if he must pay, he could not pay the whole at
once. The Subordinate Judge rejected the claim, holding
that the deed sued on evidenced a contrnct by way of securi-
ty for the performance of wagering agreements, and could
not be enforced under Bombay Act III. of 1865, presuming
this from the fact of the plaintiff having failed, without satis-
factory excuse, to produce his account books called for at the
instance of the defendant. In appeal, however, the District
Judge held that, as the transactions, wh.ich were the founda-
tion of the action in the High Court, were ended before the
passing of Act III. of 1865, they" were at that time such as
to give rise to a legal consideration, although the bond was
not pe.ssed until 1867 ;" but he added '' But there is another
gronnd on which, I think, the decree may be upheld. The
defendant, while admitting the deed, pleaded that he did not
know whether the plaintiff ha.d made the payments which
constituted the consideration ; and one of the issues laid
Digitized by Google
198' BOJIBAY HIGH COURT REPORTS.
down by Lhe Subordinate Judge, was whether consideration

1876.
----
V had been paid. The defendant, as he questioned it, was
A.JlAJ LA'L
SH1VLA.'L
tl,
bound to show that it had not. He called for the accounts
D.a.LS~KH of the plaintiff ; but it was answered that they had been
VA.RA.Ju 'L.
produced in. the High Court, and since that time the plaintiff
did not know what had become of them. I agree with the
Subordinate Judge in thinking this a very unsatisfactory
answer. Entire account books do not get mislaid as 8'. sin-
gle document might, and the defendant was deprived of the
principal means of making good his plea by their non-pro-
duction, and this is, I consider, a sufficient reason for reject-
ing the claim under Section 170 of the Civil Procedure
Code.'' And further on : ." The bond was, it is true, passed
after a suit had been filed in Cow·t; but the Subordinate
Judge rightly remarks that there is no proof that the suit
was one which would have succeeded, as a defendant might
be intimidated into' paasing a compromise bond by the fear
of expense and trouble and the chances of law.''
Both the lower Courts, it will thus be seen, have based
their rejection of the plaintiff's claim on his failure to pro-
duce his books, each presuming therefrom that he had no
claim which he could have prosecuted b;y legal proceedings
to a successful issue. The Courts below, however, appear to
us to have mistaken the point in the case, namely, the real
consideration for the defendant's promise, and the plaintiff
has thereby been seriously prej'fidiced. Assuming that the
plaintiff would have been defeated had he prosecuted his
original claim, that in itself would not, as observed by Cock-
burn, C.J ., in Oallisher v. Bischoffshevm (a), "vitiate the con-
tract and destroy the validity of what is !J,lleged as the con-
sideration.'' It was held in that case as settled law that, if
an agreement is ma.de to compromise a disputed claim, for-
bearance to sue in respect of that claim is a good considera-
tion, one of the authorities referred to being the case of
Cook v. Wr«Jht (b), where the question is fully discussed. It
was not contended in the pr08ent case, in the Courts below,
(a) L. R. 5 Q. B. 449. (b) 30 L. J. Q. B. 321. S. C. 1 B. and S. 559.
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BOMBAY HIGH COURT B..l!:POB.TS, 199
that the plaintiff knew that he had no real claim against the 1875.
defendant wheri he brought his action in the High Court (a.
----
VARAJLA'L
SHrvLA'L
very different plea. to that relied on by the District . Judge). i,,
DALBUltR
we must, therefore, a.ssume that his cla.im was honest, and VARAJLA'L,
tha.t the compromise was ma.de bona fide. The agreement
was a perfectly reasonable one ; the plaintiff consented to
forbear prosecuting what he considered to be a. good claim,
and the defendant obtained the a.dva.nta.ge of escaping from
the annoyances attendingala.w-suit. The plaintiff's forbear-
ance to continue his suit constituted a good consideration ;
iri the absence, then, of any allegation, in the written state-
ment, that the plaintiff did not bona fide believe, in·his first
suit, that he had a fair cha.nee of success,-in other words,
that his claim was fraudulent,-it was immaterial in the suit
now before us whether that cla.im was good or bad. There-
fore, assuming that the plaintiff did contumaciously refuse to
give evidence-a point on which we express no opinion-it
was clearly not on a. material fact in the case, and we must hold
that it was a wrong exercise of the discretion given to Courts
under Section 170 of the Code of Civil Procedure to reject
on that ground the plaintiff's claim. We, accordingly, re-
verse the decrees of the lower Courts, and a.ward the claim
in full with costs throughout on the respondent.
Dec1·ee reversed and clai1n awa1·ded.
[0RIGI~AL CIVIL JURISDICTION.]
Suit No. 348 of 1875. July 19.
HoRMASJI KARsETJI and others .......... ...... Plaint{ffs.

W. G. PEDDER., Municipal Commissioner,}De,-r.eni.w,n ,,_ ta.
1
and another . . . . . . . . . . . . . . . . . . . . . ....... ~
J1,j-,1Mtion-BMll1»y Act Ill. of 1872-Town duty-" Spirita"-Toddy.
~e-Whetherthe Court ought to interfere by way of injunction with
the exercise of a right, or alleged right, of officers of a municipal body
to levy taxes and dues.
Toddy-juice, whether in a fermented or unfcrmented state, is not "spirits"
..
wiUiin Yic mcaniJJg of Bombay Act ill. of 1872, and ia, therefore, not liable,
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200 BOKBAY HIOR COURT RIPORT8.
1876. on importation into Bombay, to a town duty of .Aa. 4 per gallon impoted
HoRMASJl on 1piritl by Schedule B of that Act.
KA~JJ THE ,plaintiffs instituted a suit against the defendants, as

W.G.Pi:ooia. Municipal Commissioner and Acting Municipal Com-
missioner of Bombay, for the recovery of damages sustained
by the plaintiffs by reason of the defendants having levied a
town duty of As. 4 per gallon on the plaintiffs' toddy-juice
imported into Bombay from Bhandup.
Farra,~. on behalf of the plaintiffs, on the 13th July 1875
obtained a rule nisi calling on the defendants to show cause
why the! should not be restrained from levying such duty.
The rule came on for argument before GREEN, J., on the
15th July 1875, when
Inverarity on behalf of the defendants showed cause.
Toddy is commonly known as " spirits"_. and is so described
in Regulation XXI. of 1827, Section 54, Clause 2. The pre-
. amble of that regulation shows that one of its objects was to
prevent intoxication amongst the people. Our affidavits
show the intoxicating properties of fermented toddy, that
fermentation has almost invariably set in before the pots are
removed from the trees, and that, on the fermentation set-
ting in, the toddy immediately acquires intoxicating proper-
ties. Toddy, therefore, being known as spirits, and adapted
for the purposes of intoxication, must be considered to be
spirits within the meaning of Bombay Act III. of 1872, and,
consequently, the town duty has been rightly levied on it.
Jardine in support of the rule.-Regula.tion XXI. of 1827,
Section 54, is not embodied in the Bombay Municipal Act,
and the definition of tuddy as a spirit in the Regulation is for
J,he purposes of the Regulation only. The care with which
in that Regulation and in Act XVIII. of 1853, Section 15,
toddy is specially included among spirits, shows that in the
ordinary acceptation of the term toddy is not a spirit. The
two properties of being fermented and being intoxicating, do
not. of themselves constitute toddy a spirit; otherwise beer
would be a spirit; but a duty distinct from that on spirits is
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specially imposed on beer by Schedule B of Bombay Act III. 1875.
of 1872. There being no definition of spirits in that Act, HoRMASJr
.
t I1e ord mary d efi nition must be accepted, viz. " an infla.m- KAR8ETJI
v.
• mable liquid produced by the process of distillation.'' The W.G.Pwogg,
Act, imposing a duty on the subject, must be constrned
strictly against the Government. A duty of As. 4 per gallon
on toddy would be prohibitive.
On the 19th July 1875 the following judgment was deli-
vered by
GiutEN, J. :-By Section 114 of the Bombay Municipal Act
III. of 1872 it is enacted, " Duties at the rates specified in
the Schedule B, annexed to this Act, shall be leviable in
respect of the several articles therein specified when import-
ed from any place into the city of Bombay. The said duties
shall be called Town Duties, and shall be leviable in addi-
tion to any Customs duties prescribed by law.'' In Sche-
dule B are contained, amongst others, the following arti-
cles:-'' Wines and spirits, rate per gallon 4 ai:inas"; '' Beer,
rate per gallon 6 pies."
The plaintiffs are the administrators of one Karsetji Kavasji
Ash burner, and the defendants are, respectively, the Munici-
pal Commissioner and Acting Municipal Commissioner for
the city of Bombay. The plaintiffs claim, as administrators
of the said Karsetji Kavasji, to be owners of certain lands in
the villages of Bhandup, Navur, and Conjuram, in the island .
0
of Salsette, under a grant to their predecessor in title by the

President and Governor in Council of Bombay, under date
the 7th September 1803. By one of the articles of this
grant, after reciting that the Hon'ble Company had exercised,
and then exercised, the right of taxihg certain brab trees
growing on the lands so granted, it was agreed on the pari
or the Company to relinquish all property in the brab and
other trees situate on any part of the Mid lands in favour of
ihe grantee, his heirs, executors, administrators, and assigns.
The plaint alleges that the deceased Karsetji Kavasji (and,
as appears from the grant of letters of administration to the
plaintiffs, his decease took place on the 9th February 1875)
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202 BOKJ!AT HIGH COURT REPORTS.
1875. had, previously to the month of November 1874, been in the

HoRMABJI ha.bit of ea.using the juice called toddy to be drawn from the
'Lutsrr.n bra.b and wild date trees (a.mounting to many thou.sands in
W.G.P~r>ER, number) growing on the said lands, and bringing the same •
to a. distillery at Bhandup and therein distilling from such
juice a. spirit ailled "arrack". That in October 1874 the
deceased, Ka.rsetji Kava.sji,_ ceased to distil spirit.$ from
the said toddy, and under an agreement entered into. with
one Edulji Hormasji and one Pestonji Nanabhoy, of Bom-
bay~ began to import a. considerable portion of the teddy
drawn from his said trees in its natural unfermented state
into the city of Bombay; but the said toddy was for that
purpose put into casks, which were conveyed from Bhandup
to Bombay by the G. L P. Railway, and that a large quanti-
ty of such toddy was thus i~ported by the said Ka.rsetji
Kava.sji into Bombay in the months of November and De-
cember 1874 and during the early portion of the month of
January 1875. On the 2nd February 1875, the plaintiffs
further allege, the Railway Company refused to deliver to
the consignees at Bombay certain casks of unfermented
toddy which had been sent· by the said Karsetji Ka.va.sji
from Bhandup to Bombay, except on payment of town duty
at 4 annas a gallon ; that in so refusing the officers of the
Railway Company stated they were acting at the instance and
under the orders of the Municipal Commissioner, who had
claased toddy-juice, for the purpose of levying duty on it, with
other country liquors. The plaintiffs further allege that, since
the death of the said Ka.rsetji Kava.sji, and on the 19th
.April 1875, they caused another cask of toddy-jnice to be
sent by the railway from Bhandup to ·Bombay, but that
delivery was refused, except on payment of a town duty of
i anna.s per gallon. From the correspondence annexed to
the plaint it appears that the first defendant, the Municipal
Commissioner, and his successor or locum tenens, the Acting
CommiBSioner, contend that, under Section 114 of the Bom-
bay Municipal Act 1872, a.rul Schedule B to the same Act,
they are entitled to levy 4, anna.s per gallon as town duty on
toddy-juice imported into Bombay as being" spirits''. The
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BOHBAY HIGH COURT REPORTS. 203
plaint prays (amongst other things) that the plaintiffs ma.y 1875.
be declared entitled to import toddy drawn from the trees HoaM.~SJ1
IL\RSETJI'
upon the said estate at Bhandup into the city of Bombay v.
without being subjected by the defendants to the payment W .0.PEDDE&.
of town duty upon the same, and that the defendants, their
servants, and agents, may be restrained by injunction from
levying town duty upon the toddy imported by the plaintiffs
into the city of Bombay from the said estate at Bhandup.
On the 13th July, instant, a rule was granted by this Court
calling upon the defendants to sl,low cause why they, their
servants and agents, should not be restrained by injunction
from levying town duty upon the toddy imported by the
plaintiffs inio the city of Bombay from the estate at BMn-
dup in the plaint mentioned. On the 15th July, instant,
the said rule ea.me on to be argued. ·
Had any objection been made by the defendants.on tho
point, I should, as at present advised, have had considers.hie
difficulty in holding that such a case as the present is a pro-
per, or perhaps even an admissible, case for the Court to inter-
fere in by way of injunction. I have not been able to find
any precedent for a Court of Equity issuing an injunction
against officers of Government exercising a right, or alleged
right, of levying taxes or•rates. The dicta in the cases of
Elli.s v. Earl Grey (a), Rank-in v. Huskisson (b), Hill v. Rear-
don (c), and Felkin v. Lord Herbert (d), furnish examples of
the cases with their limitations in which the Court interferes
by injunction against officers of Government. On the other
band, the Anon. case in 2 Ves. 620, and Attorney-General v.
The Mayor of lichfield (e), seem to show thata Court of Equity
has jurisdiction by way of injunction over a municipal
·a uthority to a certain extent with regard t.o the levy of rates.·
However this may be, no objection was made on this ground
on the part of the defendants in showing cause against the
rule. It is very possible that they are content to have
the matter determined in as speedy and simple a. manner as
possible, and the question here is in itself one that may be
(a) 6 Sim. 214, (b) 4 Sim. 13. (c) Jae. 84. 3. C. 2 Ruse. 608.
(d) 30 L. J. Ch. 604. (e) 11 Beav. 120.
II 622-d
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204 BOMBAY HIGH COURT P.EPORT9.
l875. as well decided on a motion for an injunction as ·i n a suit

HoaMASJI grounded on a claim for money had and received, or what in
KAk.~ETJI • •
"· England might have taken the form of aB action of replevin.
W.G.P1tDDKR· Assummg,. h owever, tha t thi
. s C ourt h as JUns
. . diction
. to mter-
.
fere by way of injunction in such a case as the present, the
simple question is, has .the :Municipal Commissioner a right
to levy a town duty on toddy-juice imported into Bombay as
being "spirits" ? The affidavits filed on behalf of the defend-
ants are mainly directed to show that fermellt.ation takes
place in toddy-juice at a very much earlier point of time after
it has been drawn from tlie tree than the affidavit filed on
behalf of the plaintiffs allow, and that, so soon as the process
of fermentation has commenced, toddy-juice begins 1lo have
intoxicating properties. This evidence is intended, I pre-
sume, to show that, having regard to the necessary lapse of
tim~ occupied in collecting the juice from the trees at Bhan-
dup, in·putting it into casks and in the transit of the casks
to Bombay, tl1e toddy-juice when it arrives at Bombay must
be in a considerably advancecl stage of fermentation, and so
becomes an intoxicating liquor. In the affidavits of Dr. Weir,
Health Officer of the Municipality) and Mr.· Wilson (Analy-
tical Chemist), filed on behalf of the defendants, I find it st.nt-
ed that toddy-juice, completely fer~ented, would contain from
5 to 8 per cent. of pure spirit. The argument of the defend-
ants, on this part of the case, seems to be that, because this
toddy-juice when it arrives in Bombay, say, at least, four or five
hours after it has been drawn from the trees near Bhandup,
must be in a considerably advanced stage of fermentation and
possess intoxicating properties, therefore it is spirit. I do not
follow this argument. Wine and beer are both fermented
liquors and intoxicating, and yet are not spirits. It is quite
olear to me that t? constitute" spirits" something beyond fer-
mentation and the possession of intoxicating properties must
be found. Regulation XXI. of 1827, Chapter XI., intituled
"Rules under which spirituous liquors are allowed to be manu-
factured at stations subordinate to the Presidency of Bombay
and duties to be levied thereon," has been relied on by the
defendants li.s showing that, spirit.s ought to be held to include
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BOMBAY BIOH COURT ltEPORTS, 205
toddy-juice. In Clause 2 of Section LIV. it is provided:" The -~7~·-

tenn ' spirit 'or' spirituous liquor' is to be understood to intt.oRMA8JI
. . . b S . l • f KARSETH
elude toddy ma fermented state." So, ago.m, y ect10n J o v.
Act XVIII. of 1853, intituled "An Act.for regulating the sa,le W.G.PEDDZR,
of spirituous liquors, &c., in cantonments," and which recites
that " it is expedient to regulate the so.le of spirituous li-
(JU111's, wine, and intoxicating drugs within military canton-
ments,." it is provided that in the construction of that .Act
" the words' spirituous liquor•· shall include toddy in a state
of fermentation or after' it has been fermented." • But the
very fact of it being considered necessary expressly to pro-
vide that for the purposes of those enactments (which are
very different to th.e purpose of the Bombay Municipal Act
of 1872 in authorising the levy of town duties) spirit or spiri-
tuous liquor shall include fermented toddy-juice, seems to
me rather to show that ea, 1,•i termini and in common parlance
toddy-juice even when fermented· is not" spirits". Beyond
\his it does not seem- to me that Regulation XXI. of 1827,
Chapter XI., has any bearing on the present case, as the
question here. is whether-a town duty can be imposed on
imported toddy-juice under Bombay Act III. of 1872, as be-
ing spirits when the Act contains no provision that spirits
shall he deemed to include toddy. Now, unless it is quite
clear that of itself and in common parlance (fqr, as I have
mentioned, we have no assistance here from an interpretation
clause) the word." spirits" includes toddy-juice, the levy of
a town duty on toddy-juice under the Municipal Act is an
unauthorised levy. Courts of Justice, before they construe
legislative enactments as imposing any tax, due, rate, toll, or
other burthen on the subject, require, according to the well-
settled rule applicable in such cases, that the inten~ion of the
Legislature should be expressed in clear, unambiguous lan-
guage. "fo dttbio," says Lord Brougham, in the Stockton
and Darlington Railwciy Oornpany v. Barret ('(), "you are al-
ways to lean again'st the construction which imposes a bur-
then on the subject.'' The meaning of the Legislature to tax
him must be " clear". In the present case, however, I cannot
(f) 11 Cl. & f'in. 500 ; ~ce p. 60i,
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206 BODAY HIGH COURT REPORTS.
1875. say that I feel even a. doubt that the word" spirits'' in the
RolOIARJI Act in question ought not to be held to include toddy-juice,
lCABSBTJI
v. whether partly or completely fermented. Jn the case of the
W.G.PKD»D • .Attorney.General v. Bailey (g) (brought to the attention of
the Court by the learned counsel for the defendants, more I
should suppose for the· purpose of attempting to avoid the
effect of it than as being an authority in his favour) the Oourt
of Exchequer in England had to consider the meaning of the
word(• spirits,, in the English Excise Acts. There,as here,
there was the absence of any statutable definition of the
word, and the Court had to assume that it was used in those
Acts in the sense in whioh it was ordinarily understood. The
point for decision was whether under those Acts " sweet
spirits of nitre '' (which, it is to be observed, was stated to
contain no less than 80 per oent. of uncombined spirits) was
to be included in the word <'spirits", and the Court decided
that it was not. Rolfe, B., in delivering the judgment of the
Court, says : '' And we think that nothing can be taken to
be 'spirits' within the meaning of the 6 Geo. IV., C. 80 '',
( and he had before stated that he assumed the word to be
used in that Act in the sense ordinarily understood,) '' which
does not oome under· the definition of an inflammable liquid
produced by distillation, either p\U'e, or mixed only with
ingredients · which do not convert it into some article of
commerce not known in common parlance under the genuine
appellation of spirits.11 Itis,l think, essential to the definition
of spirits that it be something produced by distillation, i.e.,
liquid proµuced drop by drop from vapour. As a point of
etymology it is, I think, pretty clear that it. was only by
reason of such very material substances as brandy, rum, and
gin, or ~her their essential element, having onee existed
in a state of vapour, that they came to be designated by a
name in itself so inappropriate as." spirits''. That" spirits"
is a word properly and in common parlance applicable
only to a liquid produced by distillation, is illustrated by the
following description in McCulloch"s Commercial Diction~
ary :- " All inflammable liquors obtained by diatillation, as
(g) 1 Exch. Rep. 281,
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BOMBAY HIGH COURT REPORT& 207
brandy, rum, geneva, whisky, gin, &c., are comprised under 1875.
this designation," i.e., of spirits. So in Smith's W eaJth of HoRMASJ1
Nations, B. V., Ch. 2, we find this passage-" Fermented KAR!I.ETJI 1,.
liquors brewed, and spirituous liquors distilled, not for sale, W.G.PJWD.ER.
but for private nse, are not, in Great Britain, liable to any
duties of excise.''
For these Je6Sons I am of opinion ihat toddy-juice-

though, when fermented, it contains a small quantity of
alcohol (from 5 to 8 per cent.)-!cannot be held tQ be included
under the term" spirits". No doubt, fermen_ted toddy-juice,
when subjected to distillation, will produce spirits or alcohol.
But alcohol or spirit may be obtained by distillation from
many other matters not only fermented liquids, such 88 beer
and wine, but also from molasses, beei root, apples, and wood.
But these substances beca11se they can be made to p.roduce
" spirits" are not tJiemselves "spmts ".
Having, therefore, no other guio.e to the meaning t>f the

word "spirits" as used in Schedule B, than the consideration
of its ordinary meaning within which, in my opinion, toddy.
juice does not come, the conclusion at which I have arrived is
that toddy-juice, whethel' unfermented or fermented, is not
within Schedule B of the Municipal Act, and that on impor-
tation into the oity of Bo]Jlbay it is not liable to town duty.
I may add that it is very improbable that ~he Legislature
could ever ha~ intended by the Act in question to impose
a duty of 4 anna.s a gallon on toddy-juice imported into
Bombay. The object of imposing town duties was to gain
a revenue for the Municipality, not to prohibit the import
of toddy-juice. Having regard, however, to the fact that
the outside retail selling price of toddy-juice in the island
of Bombay is little, if at all, over 3 annas a gallon, it is
evident that to exact 4 a.nna.s a. gallon town duty on its im-
port into the island, so far from yielding any revenue to
the Municipality, would, under ordinary circumsta•ces, act
as an absolllte exclusion of it. The role for an injunction
must be made absolute ; costs a.re reserved to the hearing.
Digitized by Google .J
[ORIGINAL CIVIL JuRISDICTJON.]
1875. Suit No. 827 of 1873.

July 23.
BHA'uRA'1it MADAN GoPA'L ............... ••• Plaintiff.'
v.
RA'MNA,RA 1YAN GoPA1 Land o'thers ...... ... Defendants~
&amp-.Document-Ev-id-.ActXT'lll. o/1869, Section$ 5, l8alld28.
A document, whiob by law requires a one-anna adhesive stamp to be

affixed, must be received in evidence, if, at the time or'its being tendered, it
bean the requisite etamp, even though such stamp · has been· affixed aubse.
ftUently to the exeeution of the document.
T HE plaintiff sued on an account adjusted in his book

and signed by one of the defendants, and on three
subsequent adj'ustments, founded on the first, and contained
in three letters signed by the same defendant. At the
hearing before Pinhey, J.;
lnverarity, who with Purcell appeared for the plaintiff,
put in evidence the adjustment in the plaintiff's book, which
was then duly stamped with a one-anna adhesive stamp.
Badrudin Tyabji, who witliFarran appeared for th{" defend-
ants, in cross-examination of the plajntiff, elicited the fact
that the stamp was not affixed at the time that the signature
to the adjustment was taken, but.was &£fixed by the plaintiff
himself some t~e subsequently to the adjustment.
In his address to the Court, Bacfrudin Tyabj,i contended
that, the stamp having been affixed subsequently to its exe-
cution, the document was not properly admissible in evi-
dence, and ought not to be considered by the Court.
Inverarify called the attention of the Court to an unreport-
ed decision of a Full Bench of the High Court in the case
of Punja Pallan v. Shekk Adam and another.
PINHEY, J. :-I certainly was not aware of the existence of
such a. decision. However, that being the decision of a Full
Bench of this Court, whatever may be my o;wn opinion
I consider that, sitting alone in ·a Division Court, I am
Digitized by Google
BOMBAY HIOtt COURT REPORTS. 209
bound by it. I must, therefore, hold that the adjustment __1_8_75_._

in his book, relied on by the plaintiff, is properly admis· BHA'URA'K
MA'DAN
sible in evidence. GOPAL .
v.
Note.-The case referred to was that of Punja Pallan v. ShiJ:h Adam Ab- RA'MNA'RA'·
YAN GOPA'L.
dula and Baba Saheb Bisla, Cause No. 11315 of 1872 in the Bombay Court of
Small Cause&, referred l;>y J. O'Leary, Fil'llt Judge, for the opinion of the
High Conrt under Act IX. of 1850, Section 55, on 30th August 1872, with tl:e
following statement :- ·
"This case was originally beard on the 16th July 1872 by the Fourth
Judge of this Court, sitting under Section 23 of Act IX. of 1850, and was
non-suited by him under the following circumstances:-
" The plaintiff produced in support of his case a document ( a copy
iranslation of which, marked A, is annexed) the first entry of which, under
Act XVIII. of 1869, Schedule II., Clause 5, required a stamp of one anna.
When it was for the first time tendered in evidence before the Court on 16th
,July, it bore an adhesive stamp of one anna in value; but inasmuch as the
same document had been, on a previous occasion, produced before the same
Judge, and it then bore no stamp, the Judge held that, under Section 28 of
the Stamp A.et, the document cot.Id not be received in evidence, inasmuch as
it had been stamped 'subsequent. to the execution thereof•. The fact
~f the document having been thus stamped after its execution, was also
admitted by the plaintiff.
"The plaintiff, being unable to substantiate his case without the docu-
ment in question, was non-suited.
" On 30th ,July 1872 the plaintiff applied to the Bombay Court of Small
Can-, consisting of tho First, Third, and Fourth Judges, for a new trial
on the ground that the leArned Fourth Judge was wrong in rejecting the
document A,
" The said Cenrt ordered a rule 11i8i to isaue on the said application for a
new trial, which order was, on 13th August, made absolute. But the
,ludges, entertaining doubts upon the question of law involved in the c&11e,
made the said judgment (that the rule be made absolute) contingent upon
the opinion of the High Court on the following case, which they now beg
to state to the High Court.
"When -a document, which under A.et XVIII. of 1869 requireE a stamp

of one anna, is tendered in any Court, and, at the time it is so tendered, bears
the requisite stamp, but it is witl-.in the knowledge of the Court that such
a sta.m.p was affixed to the document subsequent to its execution, is the
Court at liberty to receive th.e document, or is it bound to reject it 1
.. In support of the ruling of the Fourth Judge at the bearing, Section. 28 of
the Stamp Act is relied on as containing an absolute prohibition of the stamp.
&!I it took place in the present case, and Section 29 of the ~ame Act would
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210 BOMBAY HIGH. COU!lT REPORTS.
1875. appear to attach a criminal penalty to the act of stamping as aforeaid.

BHA'uR.4."ll The principle also laid down in De Begni, v. .A.rmat&Jd (10 Biog. 107) and
MA'DAN PergtUJon v. Norman (6 Scott 794), namely, that any contract which is made
GoPAL penal by any atatot.e is void, may perhaps, by analogy, be applied to the
"· ,
R A,MNARA• present cue, and the stamping of the document in violation of Section 28 of
•
YA'N GOPA'L. the Stamp Act may be treated as a nullity. Holding the atampmg aftere:i:e-
cotion to have the effect of making the document admiesible, woold a!lo
appear to opeo a wide door for fraod on the revenue, and would apparently
result in· thit, that the Civil Coorte would recognize and sanction the doing
of 'an act declared by the Legislature to be criminal. ·
"On the other hand the Judges entertain doubts whether, under the
peculiar wording of Section 18 of the Stamp Act, a Court iaauthorized to reject
a document presented to it under the present ciroumatancea. This appea11
to be the only section giving power to a Court to reject, for want of stamp, a
document otherwise legal evidAnce in the cause. The language of that sec-
tion seems exclusively to refer to the state of (acts at the time iji.e docomeot
is produced in Court. The words • unless it shall be stamped according to
the law in force at the time or its execution,' or ally equivalent, seem to be
studiously avoided, and some of ue entertain doubts whether, when ,. docu·
ment, when presented to the Court, ' beal'R a stamp of a value not leas than
the amount of the duty with which it ie chargeable, kc,.' we have any power
to reject it. In other words, we doulit whether we have any right k>
construe Section ,18 as if it contained the words 'unless it shall have been
stamped IIC('ording to law.' It has .been anggest.ed that this form or Section
18 was adopted in order to avoid the exclusion of certain documents which
bore a stamp of eufflcient value, but were not stamped 'according to law,'
e. y., promiBBOry notes payable on demand, executed prior to the preeent
Act, bearing an adhesive stamp of one anna instead of an impressed stamp or
the same value.
"It appears alao not unworthy of notice that if the affixing or a one-enoa
stamp on a document aubseqoent to its execution be a nullity, the Jaw is con•
stantly violated, evon by the officers actuaJly engaged in the collection of the
public revenue. It is believed to be their practice to 11ign, and in effl)'
respoot execute, receipts for taxee in large nombers on unetamped paper, and
only to affix the stamp on pa)'ment of the money.
" Under these circumstances we respectfully request the opinion of the

High Court on the queetion stated above."
The first entry in the document A, rererred to in the foregoing state•

ment, was as follows :-
"The account of Muualman Shekh Adam bekh Abdnla and Ababin Baba
Se.heb Bisla, the two individuals, for Samvat year 1928, the 18th u1 of
ebruary 1872, the day of the week-Sunday.
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llOM'.B.\Y HIGH COURT REPORTS. 211
Cr. Dr. 1873.

120-12. The 18th day or February BHA'URA'M
of the year 1872, the MADAN
balance of the old ac- GoPA.L
v.
count; the money in re- RA'MNA'RA·
spect of rice ia Ra. 120- YAN Clou'L,
12-0. Page 134.
Shekh A.dam bin Shekh Ah-
dula :>:< his signature.
Agreeably to what is writ-
ten above, Ra. 120-12-0.
The hand-writing of Ahmed
bin Soleman Khunad-
kar; this is written at the
request of the parties.
120-12. Aha bin Baba Bisla, his sig•
• nature.Agreeablyto what,
is written above, Rs."
The mference was conaidered by a Full Bench consiating of Sargent, Mel-

vill, and Green, JJ., neither of the parties being represented by counsel, and
the following was the judbnent of the Conrt delivered by
SARGENT, J. :-We ir.reof opinion t~tthe document should have been receiv-
ed in evidence. It is not e:r:oluded by the terms of Section 18, and although
l)f'rhaps excluded by the spirit or the Act, as shown by the express prohibi-
tion against stamping such a document after execution, contained in Sec-
tion 29, co!lpled with the wording or Section 26, still it is not 10 by the
letter of the law.
u
The rule laid down by Lord Cairns in P11rtingwn v . ..d.ttomey General,
(L. R. 4 H. L. 100 ; see p. 122), when discl188ing the oonstrucruon of fiecal
1egislation, is applicable to the preaent caae,
B 622-e
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(.APPELLATE 01vn, JURISDICTION.]
1875. Miscellaneous Special A,ppeal No. 2 of 1875.

September 8.
K~:~~~~~ ~~ . .. ~~~.~~... ~~~~~} AppeUant.

~.i~ ...
SAKHA'RA.'M RA'MCHANDRA DIKSHIT . . • •••••• Respo~dent.
Th, Cod, of Civil Procedure, Section, 284,.5-Decree agaimt a 3rd cla11

Sitrddr-&ecution against liia ,on. ·
Under the authority of Section 281 et seq. tbe Court of the AfFn.t for Sit-
dllrs, not having jurisdiction oTer a Sirdllr's son who is not himself a Sirdar,
cannot transfer a decree passed against the Sirdar to a Civil Court for execu-
tion against the aon. To obtain enforcement, in such a case, against his heir
of a decree against the Sirdar, the decree-holder may file a snit in the ordi-
nary Civil Court on his decree.
THIS was a miscellaneous special appeal from the deci-

sion of Edward Cordeaux, Assistant Judge of the Disti:ict
of Poona, reversing an order of the Subordinate Judge of
Poona.
The facts of the case are shortly these :-The special
• appellant obtained a decree in the Court of the Assistant
Agent for Sirdars in the J?eccan against the grandfather
and father of the special respondent, both of whom were
sirdars of the 3rd class. After their death the decree-
holder obtained a certificate, under Section 285 of the Civil
Procedure Code, from the Assistant Agent's Court, and
sought to attach, through the Court of the Subordinate
Judge at Poona. in execution of his decree, certain property
,vhich was in the possession of the respondent as heir of
the judgment debtors. The respondent, however, was not
himself a sirdar.
The special respondent objected to the execution on the
ground, among others, that the Agent's Court had no jurisdic-
tion over him, as he was not a sirdar, and that, therefore,
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I
the decree could nob be executed by the 1st Class Subordinate 1875.
Judge. This objection was overruled, and the execntiou Kaus,1.'LDAS
was directed to proceed; but on appeal the Assistant Judge s, AK HAv;RA ,N"
held that the order of the Subordinate Judge was without RA.MCHAN-
. . di .
JUI"lS ct10n.
0 n t he author1ty
. of t h e mterpretat10n
. . of t l 10 DRA. Du11Hn
.
Bombay Government on Sections 3, 4, and 5, of Regulation
XXIX. of 1827 in re Sadashiv Ranicliandra,"15th December
1834, and of a resolution of the Sadr Divani Adala.t, 21st
December 1853, in re Yeshwanltrav Parlikar, the Assistant
Judge held that the decree of the Agent's Court could not be
executed by the Subordinate Judge's Court. He was of
opinion that Section 284 of Civil Procedure Code, and the fol-
lowing sections which refer to execution matter, relate to
the cases mwhich the Court, which passed the decree, would
have jurisdiction to execute it.
The special appeal was heard by KEMBA.LL and NA'NA1 BHA'r
lliRIDA's, JJ., 17th August 1875.
Mahadev Chi'.mnji Apte for the special appellant-Section
284 of the Code seems to have been enacted specially to meet
such a case as the present. [KEXBALL, J. :-Can yon cite any
case in support of your contention and showing the practice
of the Court of the A.gent for Sirdars in executing decrees ? ]
Nu, I cannot now.
There was no appearance on behalf of the special respond- •
ent, and the case was at this stage adjourned to allow of
the pleader for the special appellant searching for authorities
in support of his contention. On the case being again called
on for hearing on 8th September 1875 he admitted that he
had been unable to find any.
Per Curiani.-The Assistant Agent for Sirdars could not

transfer the decree of his Court to that of the 1st Class
Subordinate Judge, and, therefore, the latter Court could
not execute it ; but the decree-holder may file a. s·uit in the
Civil Court on this decree against the heir.
Order confinn~d.
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[APPELLATE CIVIL JURISDIOTION.]

187&.
September 28. Miscella'MO'lt8 Special Appeal No. 12 of 1875.
KnusA'LcHAND, heir of deceased A.MAR- } , ll

CHAND
. . l Pla in
(Or igina ~11') ........... . .n.ppe ant.
. tw
MA'HA'DEVGIRI, heir of deceased RAJEN- } n d

(0 rigina ,.;,._.J_ t)
. . l D eJt:"ft,(.{,(.6n .n,espon ent.
DRAGIRI .••.•••••
Gra.nt to a Goaavi and hi& di«iplu-Li/e illterut.
A grant t.o a Goeavi and his disciples in perpetoaf anceeaaion, coupled with
directions which practically make it an endowmeni of a 'T1JOJ.h with a limita-
tion of the enjoyment t.o a particular line of celebrants of the worship
therein, does not entitle an indlridual Goadvi to incumber the endowment
beyond his own life.
· The English law relating to superstitioUB uses d11e1, not apply in the cue
of Hindo religious endowmente.
THISJudge
was an appeal fro~ the decision of A. Bosanquet.,
of the District of Ahmednagar, reversing on
remand from the High Court the decree of Purushotam
Binewale, 1st Class Subordinate Judge of Ahmednagar, who
decided in favour of the plaintiff .
•
The facts of this case are briefly these :-On the 14th of
January 1862 the plaintiff obtained a decree against the
defendant, directing the latter to pay from his mortgaged
mokasa allowance a debt due to the former. In 1867 the
plaintiff applied for execution, and under the order of the Court
attached the allowance and received the proceeds of it from
year to year until 1871. The defendant having subsequently
died, the plaintiff got the pres~nt respondent entered on the
record in his stead as his heir, and got also a. gu~rdian ap-
pointed to him, the respondent himself being a minor. To
the further execution of the plaintiff's decree it was objected.
on the respondent's behalf, that the decea.seci defendant ceased
to have any interest in the mokasa allowance after his death,
and it could not, therefore, be attached. This objection was
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BOMBAY HIGH COURT REPOITS, 215
disallowed by the Subordinate and District Judge, but was 1875.

----
allowed by the High Court in special appeal, and the case KHUSA'L•
was remanded .to determine the nature of the allowance CHAND v.
sought to be attached. On remand the District Judge found M.1.'HA'DBV•
GIRl.
that the grant was by H. H. Jankojirav Scindia to Rajen-
dragiri, the defendant, in 1838, and confirmed an older grant
made by the Peishwa. The grant declared that the allow-
ance was to be enjoyed by Rajendragiri and his disciples
and successors from generation to generation. The purpose
for which the grant was made, was not expressly stated in
the documents, but in a letter by the Rajah of Satara to
Govind Go!!bi the allowance is stated to have been given for
the worship of the goddess of wealth and for feeding and other-
wise supporting poor and deserving people. The District
Judge held that the interest of Rajendragiri under the cir-
cumstances did not extend beyond his life, and he, conse-
quently, decreed against the plaintiff.
Against this order the appeal was heard by WEST and
NA'NA1 BHA'I fuRIDA'S, JJ.
Dhirajl,d,l Mathm·adas (Government Pleader) for the appel-

lant.-The mokasa allowance was the absolute property of
Rajendragiri. It was granted to him and his disciples for
1
ever, and resembles in every respect a grant to a man and

his heirs for ever: There is no restriction whatevE?r placed on
the grantee's ownership.
No one appeared for the respondent.
Per Curi.am :-We cannot accede to the argument urged

for the appellant in this case, that a grant by a sovereign to
a gosavi and his disciples in perpetual succession, being
equivalent to a grant to a man and his heirs, and the latter
conveying a title of which the grantee may immediately dis-
pose, each gosam also in succession has a right to sell or
incumber the property granted to him and his disciples. A
grant to a gosavi and his disciples is intended by a Hindu
gra.ntor to bo a perpetual fountain of merit producing bene-
fit to himself, and this intention would be entirely defeated
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__1_s1_s_._ by the diversion of ti..i:i gift at the will of any unprincipled

KHUSA L•
1
successor of the origina1 ~antee to purely secular uses. In
CHA.ND
11. the particular case before us, the gosavis are the ministers
MA.'HA'DBV•
Olli.I.
of a math, and the Peishwa in making the grant enjoined on
the grantee, in words sufficient to constitute a trust, the cele-
bration of worship to the goddess (" Shri "), the recitation
of prayers, and the entertainment of the poor. Such objects,
however some of them might, according to English notions,
be deemed superstitious uses, are allowable and commendable
according to the Hindu law. See Jagannath's Commentary,
Col. Dig. Bk. II., C. IV., T. 33. Even of the property belong-
ing to a.family it is prescribed by Katyayana. (Vyav. Mayukh,
Ch. IV., Sec. VII., Pl. 23) that any portion once assigned
for purp~ses of religion shall be excepted from partition so
as to be kept available for its intended object. In Bengal it
has been held, in ~he case of Mohant Burm, Suroop Dass T,
Khashee Jha and others (a), that a MohaJit in charge of
an endowment cannot, except distinctly for its benefit, in-
cumber it beyond his own life, and we think that the case of
the gosavi.8 holding under the grant we are now consider.
ing, falls within the same principle. The grant was to the
gosavu and their disciples, but coupled with directions which
practically made it an endowment of the matk with a limita-
tion of the enjoyment to a particular line of celebrants of the
worship therein. This being ' so, an individual gosavi was, in
our opinion, no more at liberty to sell the endowment than a
vatanda1· the endowment of his office. We, therefore, con-
firm the order of the District Judge with costs.
Decree con.ji:rmed,
(o) 20 Cale. W.R. 471; Civ. RuJ.
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BOVBAY mou COURT REPORTS. 217
(CROWN SIDE.]
REG. v. RA'.1toA's SA':MALDA's. 1875.
August_ 17.
Ex parte MA'DAVJI DHARRAMSI. ••••••••••• ••• Applicant.
lligh CQllrt Criminal Proudure Act, X. of 1875, Section, J 15, 147-
Cmiorari-Order of refd'ence-A et XII[. of 1856, Section 36-0rder fo1·
tklivery of property-&amination of witnrBM~.
&mbk that the "case " mentioned in Section 147 of the High Court'11
Criminal Procedure Act, X. of 1875, must refer to some question in the
nature of a criminal proceeding, end not to amatter of a qu<Ui civil character,
such as the reference to a Police Magistrate contemplated in Section 115.
The power of the High Court to issue a writ of cerliorari baa not been taken
away by Section 147 of the High Court's Criminal Procedure Act, X. of 1875.
The words "any ptoperty" in Section 115 of the High Court's Criminal
Procedure Aot, X. of 1875, include aa well property voluntarily produced
before the Magistrate by a witneM in the case, aa property seized by the
Police or found on the person of the prisoner.
The reference to a Magistrate under Section 115 of the High Court's Cri-
minal Procedure Act, X. of 1875, is not a .trial for the final determination
of the rights of the parties, and it is not incumbent npon the Magistrate
on such reference to hear witneaaes, but he may rightly order the delivery
of property to that one of the rival claimants whom he considers, upon the
statement of their respective cases, to have made out a primilfacie case,
and it is not competent to the High Court to review the decision at which
the Magistrate so arrin11.
THE applicant in this case claimed to be the bond fitk
purchaser for value of a certain share certificate in the
new Dhurrumsey Punjabhoy Spinning and Weaving Com-
pany, and as such to be entitled to the possession thereof
against the actual owner and his pledgee, from whom it had
been stolen prior to the sale to the applicant. The Magis-
trate had ordered the share certificate to be restored to the
pledgee of the real owner, and it was in consequence of such
order of the Magistrate that the preB!:lnt application was
made to the High Court.
Inverarity on 27th July 1875 obtained a rule ftisi on be-
half of the applicant, that the case of Beu. v. .Ramdas
Samaldas and all proceedings had and taken therein before
Nana Moroji, Esq., Magistrate of Police for the Town and
Island of Bombay, relating to the share certificate in ques-
tion, should be transferred into the High Court, or that a writ
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1875. of certiorari should issue to the Magistrate to bring into the

Rw. 11• High Court the case and proceedings and all papers relating
R.4.'M»A'll to the matter, unless he should show cause to the contrary.
SA'.MALDA'S. •
Purcell (JardiM with him) showed cause on August 14.
lnverarity in support of the rule.
Our. ad. vult.
The following judgment, setting forth all the facts of the
case, was delivered, on August 17th, by
MARRIOTT, J. :-The matters in question on this rule arise
out of the.conviction of one Ra.md6s Samald6s who pleaded
guilty before me, at the last Criminal Sessions of the High
Court, of the offences of theft and of criminal breach of trust
as a servant of [amougst other property] one share certifi-
cate with blank transfer deed attached in the New Dhurrum-
sey Punjabhoy Spinning and Weaving Company, No. 37,
and standing in the books of that company in the name of
Dhurrumsey Pnnjabhoy. Upon such conviction, in accord-
ance with what has been the ordinary practice of the High
Court when a question respecting the ownership of the stolen
property arises, and for which provision is now made by
Section 115 (a} of the High Court Criminal Procedure Act,
X. of 1875, the matter was referred to the committing Ma-
gistrate, Mr. Nana Moroji, then Acting Second Magistrate
of Police in Bombay. It appears from the affidavit of Hur-
• ridas N uthubhoy, and it is not disputed, that in the month
of Jµne 1874 Dhurrumsey Punja.bhoy had sold the share in
question to the firm of Hurgovundas Cuberda.s, and at the
(a) "When the tri•l is concluded, the Court may make auoh order as it
thinks fit for the dispoeal of any property produced before it, regarding which
any offence appears to have been committed. Any order under this IMIO•
tion may be in the form of a reference t.o a :Magietrat.e, who ehall in 1uch
cue deal with the property u if it had been seized by the Polioe, and the
eeizure duly reported to him.
ExPLAN.a.TroN.-In this section the term 'property' includes not only such
pro~y u has been originally in the poBlle&lion or under the control of
any party, but allo any property into or for which the .same may have
been converted or exchanged, and anything acquired by IIUCh convenion
or exchan&e, whether immediately or othenriee."
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BODAY HIGH COURT BIPORTB, 219
time of such sale had executed a blank transfer and applica- ____
1875,
tion for transfer to that firm ; that in the same month of Rzo. v.
RA'MDA'S
June the firm of Hurgovun.das Cuberdas pledged that share SA'114ALDA'8.
with the firm of Gungadas Vizbukundas, and at the same
time handed over the she.re certificate and blank transfer a.nd
application for transfer to Nursidas Jaitram, the munim of
the firm of Gungad6.s Vizbukundas, as security for a loan.
The prisoner, Ramdas Samaldas, was a. servant of the firm of
Gungad6.s Vizbukundas, and the theft wa.s discovered on
the 18th of February last, but must ha.ve been committed
some days previously. The she.re was transferred from the
name of Durrumsey Punjabhoy into that of Sorn.bji Hor-
masji Jussawalla on the 11th of February last, and it ap-
pears from the affidavit of the applicant, Madavji Dha.r-
ramsi, that he, in the usual course of business, on the 2nd
of April last, purchased the share in the share market in
Bombay through a broker named Cupurchund Cursond6.s, ·
at the then market price of Rs. 1,320, and that on the 5th
of that month the transfer deeds were, together with the
share certificate, deposited a.t the company's office. The
purchase money was pa.id, and on the same day the share
was transferred into the name of the applicant, Madavji
Dharra.msi. In order to effect the transfer to Sorabji
Hormasji Juss!walla, the prisoner must have fraudulently
filled up the blank transfer and application for transfer
signed by Dhurrumsey Punjabhoy. On the 9th of June
last, the she.re certificate was produced by the gumasta of
the applicant before Mr. Nan!\ Moroji, before whom the
prosecution was then pending previous to committal. Mr.
Nana Moroji retained the share certificate as one of the
exhibits in the case, and it was one of the exhibits sent up
to this Court with t~ case. On the 22nd of July last, the
question as to the disposal of the share certificate, under an
order of reference, came on before Mr. Nana Moroji, when
the applicant, M.ada.vji Dha.rramsi, appeared and claimed
by his solicitor, Mr. Rimington, to he entitled to the share
as a bona fide purchaser thereof for value in the open share
market in Bombay, without notice of the fact of its having
B 622-/
Digitized by Google
220 IIO)JBA Y HIGH COURT REPORTS,
1875. been stolen property. But the Magistrate ordered the share
H~ certificate to be delivered up to Nurseyda.s J aitram, the rnunim
8 ~~·:i0
A;;, of the firm of Gungadas Vizbukundas. The rule ni:Ji in this
matter, granted on the 26th of July last, directed that the
case and all proceedings had and taken therein, relating to
a certain share certificate, No. 37, in the New Dhurrumsey
Punjabhoy Spinning and Weaving Company, Limited, be
transfeITed into the High Court, and that the said Nana
:Moroji do transfer the same and all papers relating to the
said matter into tho High Court accordingly ; or that a writ
of ce1tiorari do issue out of the said High Oourt, directed to
him, the said Nana Moroji, to bring before the High Court
the said case and proceedings mentioned, and all other
papers relating to the said matter, &c. The rule was so
granted in the alternative, because I had doubts, when the
rule was moved for by Mr. Invero.rity, whether this was a
matter within the provisi-0ns of Section 147 of the High
Court Criminal Procedure Act, X. of 1875. That section
provides-" Whenever it appears to the High Court of Judi-
cature at Fort William, Madras, or Bombay, that the direc-
tion hereinafter mentioned will promote the ends of justice,
it may direct the transfer to itself of any particular case
from any criminal Court situate within the local limits of its
ordinary original criminal jurisdiction ; and the High Court
shall have power to determine the case so tmnsfe1Ted, and to
quash or affirm any conviction or other proceeding which
may have been had therein, but so that the same be not
quashed for want of form, but on the merits only." It
appeared, and still appears, to me that the "case" mention-
ed in that section must refer to some question in the nature
oh criminal proceeding, and could not refer to a matter of a
quasi civil character, of which a reference to the Police Ma-
•
gistrate under Section 115 of the same Act partakes. But,
be that as it may, it appears clear to me that this Court,
which, like the Court of Queen's Bench in England, has a
· superintendence ovm- all inferior Cow·ts within its jumdic-
t.ion, and may remove all proceedings therein depending and
transfer them to its own jurisdiction, has power to issue a
Digitized by Google
BOMBAY HIGH COURT REPORTS. 22'1
writ of certiorari in a case like the present. It was, indeed', 1875.

----
contended on the argument of the rule that the writ of cer- Rv.o. v.
RA'MDA'tl
tio-rari was ta.ken away by Section 147 of the High Court's SA'!IIIALDA'S~
Criminal Procedure Act; but, although that section gives
power to the Court to remove cases from inferior Courts by
the form of procedure there given, yet I apprehend the
jurisdiction of this Court to issue writs of cerfiorm-i could
only betaken away by express enactment, and that this Court
has still jurisdiction to issue that writ in cases to which that
section does not apply (b ). The rule came on for argument
on Saturday last, when it was objected on behalf of the
applicant that the order of reference to the Magistrate had
not been drawn up, and, therefore, that the Magistrate had
no jurisdiction. It has not been the practice to draw up
these orders, but that does not render t.he order invalid, and
it is not the less an order of the Court because it has not
been drawn up. It was further objected on behalf of the
applicant that, as this share certificate had not been seized
by the police or been found on the person of the prisoner,.
but had been produced before the Police M!Lgistrate by a
witness, the provisions of Section 115 of the Aet did not
apply. The words of the section arc-" When the tria-1
is co~cluded, the Court may make such order as it thinks fit
for the disposal of any property produced before it, regard-
ing which any offence appears to have been committed.
Any order in this section may be in the form of a reference
to a Magistrate, who shall in such ease deal with the property
as if it had been seized by the police, and the seizure duly
reported to him." The share certificate was the property
regarding which the theft, for which the prisoner was con-
victed, had been committed, and the words "any property "
are certainly large enough to include property whether seiz-
ed by the police or produced by a witness in the case. In the
case of Il. v. Stanton (c) the prisoner was indicted for the theft
of a £10 Bank of England note, which had been subsequently
paid by the bank, and which was produced in Court by a
(b) So~ R. v. Rea>e, 1 W. BI. 231; R. v. Allw, 15 E1111t 333.
(c) 70.&l',431.
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222 B0l1BAT BIOB COUET lll'OBTl!I.
1875.
-Rw
--....
- clerk of the bank. The prosecutrix applied for a return of
the note under the Act then applicable, 7 and 8 Geo. IV.,
RA'IIDA 18
&'JlALDA'&
C. 29, S. 57. The Court declined to make the order, as the
note had been paid by the bank, and the proviso of that
section was applicable, but it does not appear that the Court
doubted its power to make the order, because the note was
produced by a witness. To put the construction contended
for on the section, would be not to give full effect to the
words in their natural and ordinary sense, and would, I think,
limit the beneficial effect of the section, which was intended
to provide a simple and immediate means for the restitution
of stolen property. It was further contended that the
Magistrate had refused to permit the applicant to call any
witnesses, and also that no opportunity was given of cross-
examining Nurseydas Jaitrim, whereby it was suggest.eel
such a case of negligence might be made out as would dis-
entitle him to a return of the share certificate. The Magis-
trate has not made any affidavit, and the only account of
what took place before him is that contained in the affidavit
of the applicant. In the 6th para. he says :-" On or about
the 13th July 1875 I was served with another summons
issued by Mr. Nana Moroji, calling on me to attend Hefore
him and show cause why the said certificate of share No. 37,
therein described as having been detained in the case, should
not be returned to the complainant; in obedience to which
I attended with my solicitor, Mr. Rimington, on the 22nd
July, and my said solicitor then urged before the said Magis-
trate that I was the bond-fide purchaser in the open market
of the said share for valuable consideration, without notice
of any claim thereto whatsoever, either on the part of the
complainant Nurseydas Jaitram or of any person other than
the said Sor.ibji Hormo.sji Juss5.walla, who was the regis-
tered holder and owner of the share at the time of such
purchase ; and submitted that, as the certificate on the face
of it showed that I was the registered holder of the.share,
and that 1t bad been transferred from time to time in man-
ner aforesaid, the said share certificate ought to be returned
t-0 me as the person entitled thereto, and from whose custody
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BOJIJU.T HIGH COURT RIPOBTII. 223
it came into the hands of the M::igistrate; and that if the 1875.
Magistrate had any doubt as to my right to have the share Rzo. ,,
certificate delivered to me without further enquiry, I was pre- 8 %=:~~
pared to adduce evidence before him to show that the facts
hereinbefore stated, as to the circumstances nnder which
I acquired the said share, were true. Tho Magistrate, how-
ever, said that he did not wish to hear any evidence on the
subject, that he did not wish to decide anything as to the
legal rights of the parties ; but that he would order the said
certificate to be delivered up to the complainant, and that I
could resort to the civil court to enforce my right to the said
share if I was so advised," &c. Upon that statement it ap-
pears that the applicant had an opportunity, through his soli-
citor, of stating his case, and the effect of the evidence he was
prep&red to adduce, and it does not appear from the affidavit
that any application W88 then made to cross-examine Nursey-
das Jaitram. That suggestion was made on the argument
of the rule. In order to decide whether the Magistrate
was wrong in not permitting the applicant's witnesses to be
examined, it is necessary to look at the character of tho
proceedings before him. Section 115 provides that the
Magistrate, when an ordinary reference is made to him,
"shall in such case deal with the property as if it had been
seized by tho police and the seizure duly reported to him."
In Bombay, jurisdiction as to the disposal of stolen property
is given to Police Magistrates by Section 36 of Act XIII. of
1856, which provides that " it shall be lawful for any Magis-
trate to make an order for the delivery of such property to the
party who shall appear to be the rightful owner thereof,"
and the section also provides that no such order shall bar
the "righ~ of any person to sue the party to whom the
property shall be returned, and to recover such property
from him by action at law, so that the action be commenced
within two months after such order shall have been made."
It appears to me upon that section that tho proceeding
before the Magistrate was not intended t6 take the
form of a regular trial, wherein the rights of the parties
were to be finally determined, but rather of a preliminary
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1875. proceeding, wherein the Magistrate, upon the statements of

----
Rw. v. the respective cases of the rival claimants, should make an
RA'l'III>A's
8A.'HALD AS. order for delivery of property to the one which he considered
had made out a prima fade case. If the correctness of the
Magistrate's decision be impugned, that may be done as in
this case in a. civil suit. That being so, it does not appear
to me that it was incnmbent upon the Magistrate to hear
the applicant's witnesses, the effect of whose evidence and
the alleged legal result therefrom he had heard already stated
before him by the applicant's solicitor, and it is not com-
petent to this Court to review the decision of the Magistrate,
even if I were of opinion-which I am not-that he had
come to a wrong conclusion as to the disposal of the property
upon the state;nents before him of the cases of the respect-
ive claimants (d). For these reasons I think the rule must be
discharged, and with costs.
(d) With regard to the correctness of the Magistrate's conclusion 88 to
the dispos.'\l of the property, see the ca.se of Swan\·, The N. British Awdra-
lcisian Company (Z H. & C. li5) affirming the judgment of the Court of
Exchequer (7 H. & N. 603).
[ Af'PELLATE CIVIL JURISDICTION, l

Rcgul,ar .Appeal No. 24, of 1874.
June 14. SA'VITRIAvA'
ANANDRA'v, deceased
his sons and heirs,
ArA' SA'Hirn and 13A'-
;1
and another .. .Defenuants and Appellants.
. .
Plainfrtfs and Respondents.
BA' SA'HEB ... • ..
Wamn-Partition of watan-Cessation of dutiea attacMd to ,oa.ta,1.
A cessation, (even though sanctioned by the Govcniment,) of the perform-
ance of the duties attached to an impartible watan, does not alter the
nature of the estate and make it. partible.
THIS1st '1tas an appeal from the decision of A. M. Cantem,

Class Subordinate Judge of Dharwar, in original
suit No. 613 of 1866.
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BOVBAY HIGH COURT REPORTS, 225
The appeal was argued before WESTROPl', C.J., and LAR- I8i5.
Pi:NT, J. SA'VITRIAVA'
n_, Sa"e1
.fillV '1 l TT.' 1, 1 ~T' , ,
ru,i·vmiat,i.L,arayan . ·z.. f orth eappell ants.
M amll'l, and another
v.
Bahiravnath l,fa.1u1esh for the respondents. ANANDRA'v,
The facts of the case, in so far as they are material for tl1e
purposes of this report, aro stated in the judgment of the
Court delivered by
WESTJWPP, C.J. :-Mula.pa, the last male who (before the
second defendant) performed the duties of the four offices of
Nadgavdu., Deshgat, Gavda (alias Patil), and Patanshetayuki
of Narendra, and enjoyed the watan thereto appenaant, died
childless in A.D. 1830. The late plaintiff, Anandrav, who
was the son of Dada Tumapa, one of Mulapa's four brothers,
did not institute any suit to obtain a share of the watan
until 1866, i.e., a period of 36 years from the death of Mula.pa.
Sakrava, the elder widow of Mula.pa, succeeded him, and
managed the offices as well as the u·atan until A.D. 1846,
when she, with the consent of the revenue authorities, made
over the management to Savitriava, the junior widow of
Mula.pa, who eoD.tinued to manage the offices and watan
until 1856, in which year, in pursuance of her request made
in 1854, Kumargavda, the second defendant, was substituted
by the revenue authorities as vahivatda1• of the offices and
watan. He is the son of Venkawgavda, who was the eldest
son of Fakirapa, the brother of, and next in seniority tQ
Mulapa. If, as the defendants contend, the watan be im-
pnrtible and should follow in descent the law of primogeni-
ture, K umargavda is the next male heir of Mula.pa. The
plaintiff is in the enjoyment of three fields and a house as
potgi, to which he succeeded on the death of his father Dada
Jumapa in A.D. 1814 or 1815. That potgiis maintenance out
of the family estate ; other junior branches of the family are
also in the enjoyment of pofgi. In 1821 an attempt by suit
against Mulapa made by Basa.pa, one of the brothers of
Mulapa, failed. It was referred to arbitration, and the arbi-
trators in that year (see Exhibit 58), in rejecting-his claim,
stated that BMapa had been in the enjoyment of potgi, and
was not entitled to more, the estate being in their opinion
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226 BOMBAY HIOB COURT REPORTS.
1875. impartible, and proved to be so for several generations.

SA'V1T1t1AVA' The plaintiffs' acquiescence of 36 years in the exclusive pos-
and a:other session, first of Sakrava, next of Savitriava, and, lastly, of
ANANn:u.'v. Kumargavda, and remaining, throughout that time, content
with his pof,gi inherited from his father, tells strongly in
favour of the impartibility, according to custom, of the watan.
The plaintiff (who was divided in food and residence from
Mulapa and his family), evidently sensible that his acqui-
escence would, without some explanation, have that effect,
relied upon Exhibit 54 (purporting to be dated as of the
20th May' 1830) as ench an explanation. But the S.ubordi-
nate Judge has, for apparently good reasons, held it to be
spurious and fabricated. His finding on that point has not
been impeached by the plaintiff on this appeal, although he
has attacked some of the other rulings of the Subordinate
Judge. We, while adhering to our previously expressed
view, (a) that clear and satisfactory evidence of a custom
contrary to the ordinary rule of Hindu law is necessary for
its establishment, are of opinion that the Subordinate Judge
was right in finding that by family custom the watan was
impartible, but we cannot agree in hie decision that it has
now become partible. We differ from him on that point, 1st;
because there is not any evidence that the duties of the four
offices, or of any of them, are no longer performed by the
watandar. The evidence is rather in the opposite direction.
The revenue authorities appear to have recognized first the
elder widow, next the junior widow, and, lastly, Kumargavda,
as the. officiator. But, even if the offices have become, as
conjectured by the Subordinate Judge, sinecures, that cir-
cumstance would not render the watan appendant to them
po.rtible. There is not any authority for holding that a
cessation of the performance· of the duties of the office,
even though sanctioned by Government, would alter tho
nature of the estates appendant to them (b). The decision
(a) See 7 Bom. H. C. Rep. A. C. J. 175, 10 Bom. H. C. Rep. 260.
(b) See Rajkiahen Singh v. RamjoV Surma Mozoomdar, L. R. Ind. App.
P. C. 186, 191, published since this case wae decided, and which supports the
view here exprelllled. See alao Baboo !Bur Pertab Sah« v. Mulw.rajaJ,
Rajwkr Ptrtab SaJiu, 12 Moo, lDd. App. 1.
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BOKBAY RIGll COURT REPORTS, 227
of the Subordinate Judge's predecessor, to which he refers, __ 18_7_5.__
appears to have been appealed against. . It has been stated S..l'VITau v A.'
and another
at the bar by the appellants' pleader to have been reversed, . "·
but there is not any evidence on that point. We, therefore, ANA.XDJU.'V.
do not know what was the result of that appeal, and, for aught
that appears to the contrary, that case may have been decid-
ed in the Court of first instance for want of the evidence of
custom which exists in this case.
Again, even if the merits of this case were with the plain-
tiffs, which in our opinion they are not, their suit is com-
pletely deft?cti.ve for want of parties. None of the junior
members of tJte. family (who would be co-parceners if the
plaintiffs' case be true) have been made parties to it. Further,
these junior branches are hoJders of potgi; and, unless their
potgi as well as that of the plaintiff were brought into
Jiotchpot, no proper partition could be made. The plaintiff
has not even offered to bring his potgi into hotchpot.
It might be a question whether, in the case of so stale a
claim as that of the plaintiff, we could properly allow him
to a.mend his plaint at this stage by adding parties.
It is unnecessary to decide that question, as, for the reasons
already given, he must fail on the merits.
We revel'Se the decree of the Subordinate' Judge, and
direct the plaintiffs to pay to the defendants the costs of the
suit and of this appeal, and dismiss the plaintiffs' claim.
Decree ~ingly.
( APPELLATE CIVIL J URISDIOTION.]

MucellaneOTU Regular .Appeal No. 6 of 1874.
KmsHNARA'v .................. Plai1itijf and Appellant. Jue 15.
A.ErA'JI V1&UPUKSHA ...... Defendant and Respondent.
..id Vil. qf 1870, &ctitm 11-.ddditional --.p dvty-lnurut o. ckcrte.
The Court F-· .Aot (No. VII. or 1870), Section 11, is not applicable to in.
t.ereet aconing upon a decree in a suit. which ie neither !or mesnti profita nor
for ilmnOTeable propert1, nor for an account, but 1impl7 aca act.ion Cor money
Jut.
11 622-g
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228 BO)(BAY mou COURT REPORTS.
1875. THIS was a misce)laneons regular appeal from the order

Ke.1suYAu'v of C. H. Shaw, District Judge of BeJgaom.
"·
A~A-JI
The facts of the case are briefly these :-
Vuu:;J'UKSB.L
On the 8th of March 1875 a decree was pMSed by the
High Court in Regular Appeal No. 11 of 1861 in favour of
the appeJJant. The decree awarded payment, by the respond-
ent to the appellant, of a certain amount of money lent by
the Jatter to the former, together with interest from the date
of suit np to the date of payment. The appellant made the
present application to recover Rs. 34,092-3-0, being interest
<lue on the said decree. The District Judge held that, under
Act VII. of 1870, Section 11, the plaintiff was liable to pay
additional stamp duty (Rs. 1,035) on the amount which he
sought to recover, and made the following order :-
u The Court has no doubt that the intention of Section 11,
Act VII. of 1870, is that only relief to the extent of the value
covered by the de~ree can be afforded, anti, if anything more
is claimable, additional fees mast be paid. Interest is a
constantly accruing cause of action as much as mesne pro-
fits, and the difference of fees must be made up by petitioner.
The Court, however, allows four months' delay, and accedes
to the petitioner as to attachment of the crops, and directs
that they be placed in deposit or the proceeds thereof."
The appeal was heard by WESTROPP, C.J., and LARPENT, J.
Manik,ha Jehli.ngirslui for the appellant.
No one for the respondent.
W ESTROPP, C.J. :-It appearing to the Court that Section 11
of Act VII. of 1870, upon which the District Judge ha.a act-
ed, is not applicable to interest accruing- upon a decree in a
suit-which suit was neither for -mesne profits, nor. for im-
moveable property and mesne profits, nor for an account, but
simply an action for money lent-the Court reverses the order
of the District Judge without costs. H the amount of stamp
· duty, charged by the District Judge u~der that section, has
been lodged, the same should be refunded to the plaintiff.
Order reversed.
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[APPELLATE CIVIL JUBJSD!OTION.]
VRA 1 ND.\.1 VANDA's RAMDA's ... Plaintiff and Appellant. 1875.

June 28.
Y AMUNA'.BA'I .................. Defendant and Respondent.
Undivided Hindu family-Gift-Maintenance-Concubine.
A member of an undivided ltiudu family, on this side of India, cannot,
without the cooeen& of his coJ:J:&rceners, make a gift of his slaare in the un.
divided property.
Gan~dxii v. Ramdnnd (S Bom. H. O. Rep. A.C.J. 88) followed.
G, a member of an undivided Hindu family, died, leaving him 1urviving
iwo nephews, V. A. and V. R., and Y., a concubine of G. V. A. lived with G.
a~ the time of his death, and had the whole of G.'e property, moveable and
immoveable, left in hill (V. A.'e) possession. V. A., before his death, made a
gift ofthoaaid property to Y. in consideration of her having beon G.'s conou.
bine for many years. In a 1uit brought by V. R. to recover the whole pro.
perty from Y, she claimed it by virtue of ihe gift to hor by V. A.
lleltlthat the gift WIid invalid as ngainst V. R., who was entitled to the
whole property, subject to the maintenance of Y. as a ooncubine of G. for
many years; tlae High Court also directed the said maintenance to be
socured for her (Y.) by investment of a 1uffieient part of the property in trust
for that purpose.
T HISGovind
was a. regular appi:ial from the decision of Ma.hadev
Rana.de, 1st Class Subordinate Judge of Poona.
Tho facts of tho case are briefly these :-One Gokaldns,.
a. member of an undivided family, died on tho 27th August
1867, leaving him surviving two nephows, Valabhdas and
Vrand{Lvantlas (plaintiff), and the defendant Yamanaba.i,
who had lived with Gokaldas; for many years, as his con-
cubine. Gokal<las, at tho time of his death, lived in Khed,.
in the District of Poona, with his nephew Valabhdas and
his concubine Yamunabai, while Vr4ndavandas lived in
Barhanpur, in the District of Khandosh. The whole of
Gokaldas's property, movuable and immoveable, was left in
the possession of Valabhdas at the time of Gokaldas's
death. Valabhdas subsequently died on the 5th J nly 1871,
but, before that event took place, had made a gift (in
writing) of the whole of the property to Yamunabai, because
she had been his uncle's concubine for a very long time.
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230 llOKBAY HIGH COURT UPO.BTS.
__:_~ The plaintiff, therefore, brought the present suit to recoTet

VRu»A'· the property from Yamunabai as the sole surviving member
VANDA.'8 1
R.uron of Go~diis s family. The defendant, inkr alia, answered
YAJro!~'.BA.'L that she was entitled to the property by virtue of ~ gif~
ine.de to her by Valabhdas. The Subordinate Judge held
the gift by Valabhdas valid to the extent of his own share
in the property, and awarded to the plaintiff half of the
estate claimed, ginng a decree to the defendant for tae
other half.
In appeal it was contended that the gift, by Valabhdas, of
his nndetermined half share in the joint family property was
invalid without the conaent of the other coparcener, the
plaintiff.
The special appeal was argued before WESTROPI', C.J.,
and LABP.1MT, J., on the 28th Jone 1875.
Gli.anaaMm NilkantAa N<Ukarn.i for the appellant.
Shantaram Naravan for the respondent.
W B8TBOPP, IC.J. :-We so far concur with the Subordinate
Judge as to hold that Valabhdas and the original plaintiff
were brothers united in estate. No partition between them
has been directly established, nor ~re there any circumstances
in the case sufficient to raise a.n implication of a partition.
This being so, the Subordinate Judge was right in holding
that Valabhdas had not power to alienate the whole of the
estate of their deceased uncle, Gokaldas. But he upheld the
deed of gift executed by Valabhdas on the 16th June 1871 to
the defendant to the extent of the share of Valabhdas in
that estate. The deed recites the fact that the defendant had
lived from her infancy with Gokaldas as his wife. No other
consideration for the gift is stated. In point of fact she
lived from the time of her being eleven or twelve years of age
with Ookaldas as his concubine until his death-a period of
about forty years. Assuming for a moment that a past ooh•·
bita.tion of the defendant with Gokaldas would have been
a sufficient moral considera.tion to have supported a deed of
gift by him to the defendant of his share in family property,
we are at a loss to understand how such a ~h11bitation b1
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BOKBAY BIOB COURT REPORTS, 231
the defendant with Gokaldas can be regaTded even as a 1875.
moral consideration for a deed of gift, by his nephew Va• Vu'NDA'
VANDA'&
labhdas, of his share to the defendant. But, further, in. R.uro.&'s
Gangubai v. Bamanna (a) a deed of gift of an undivided share Y1J&u=~·..·,.
in family property by a parcener to his daughter, where the
only consideration was natural love and affection (which
is a monJ consideration), was held void as against his co-
pa.rcene1'8 by Couch, C.J ., Newton and Warden, JJ., in this
Court. The authority of that case was recognized in Vas-udeu
Bhat v. Venkateah. Sanbhav (b) and in Udaram S-itaram v.
Ranu Panduji (c). In those oases the deeds upheld were
executed for valuable consideration. We are not disposed
to carry the assignability of the share of a ooparcener in un-
divided Hindu family property any farther than we felt
compelled to do by the precedents referred to in those cases,
and by the traditions of the Supreme Court and Sadr Adalut
in this Presidency.
What has been said, shows that,we cannot agree with the
learned Subordinate Judge in supporting the deed of gift,
even to the extent of the share of V a.labhdas. We must,
therefore, declare it to be void as against the original plain-
tiff and his son, the present plaintiff.
We think that the defendant has in her defence mistaken

her rights. As the concubine of Gokaldas for many years,
she is entitled to maintenance : Kh.emkor v. Umiash.a nkar ( d);
Vyavaluir Mayukha, Ch. IV., S. 8, pl. 5; Mitak. Ch. II.,
S. I, pl. 7, 27, 28; l West and Biihler92, 98; 1 Stra. 174. W&
most, therefore, although reversing the decree of the Sub-
ordinate Judge, direct him to ascertain what is a scflicient
future maintenance for the defendant, commencing from the
date of this decree. In so doing he should have regard to
her age, her past mode of life, and the extent of the family
estate inherited by the plaintiff and Valabhdas from Gokald'8.
He should also take proper measures to secure that mainte-
(a) 3 Bom. H . 0 Rep, 66 A,O J . (b) 10 Bom. B. 0. Rep. 139, 167,

(e) 11 Bom. B. Q. Rep. 76, 80. (d) 10 Bom. H. C, Rep. 381,
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232 llOKB.AY RIOB COUBT REPORTS.
2_7~ nance for her, either by directing an investment of a sufficient

VRA'NDA'· part of the estate in trust f~r that purpose, or by such other
VANDA S h
RAllDA's µieans as e may
deem su fficient. The present plamtw • :tr
Y,un,=~·BA·t. will, of course, be entitloo immediately to the residue of the
property, and on the death of the defendant to the portion set
a.part for the protection of her maintenance. Under the
peculiar circumstances of the case we shall not award mesne
profits or costs to the plaintiff. The parties must respect-
ively bear their own costs of the suit and appeal. It being
equitable that the plaintiff, in recovering from the defendant
the property, should do so subject to the burden, placed upon
it by Hindu law, of supporting the defendant, we have not
thought it proper to subject her to the expenses of a separate
auit for that purpose.
[APP!!LLATE CIVIL JURISDICTIO~.]

-July
- I. B BAVA •NI sADA,smv •••••• Plainhu
. 'IT and Appellant.
BnAVA.'NI MA'NA1JI ••• ••• Defendant and Responde1it•
.Act XL of 1843-0ivil 001!.rt', juriadicti-On-Patilki Wata-Oolkdor.
The plaintiff bad two shares, and the defendant one ua a pdtilL; eoaloll.
Jn an 11etion brought by the plaintiff to eatabliah his right to officiate twice
as often as the defendant,
Ht 'Id that the plaintiff was not neceaaarily entiUed to auch right, thong!>
the fact of his holding two shares iu ihe watan might be a reason for the
Collector to exercise hie discretion under Act XI. or 18!3 (when it was in
fore~) in favour of tho plaintiff by 1111siguiog to him a longer period of
management than to the defendant, iu the event 0£ the two sharers no•
agreeing as to the person to officiate.
Quare whether the Civil Courts have jurisdiction tA:> entertain such a sail.
THIS was a. special appeal from the decision of G. M.
Macpherson, Senior Assistant Judge of Poona in charge
of Solapur, affirming the decree of the Subordinate Judge
of Pandha.rpur.
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BOMBAY HIGH COU'RT R'KPOBTS. 233
Bhavsni Sadashiv brought this suit against Bhavani __i_s~
Manaji, and stated that he and the defendnnt were sharers BHA\.A NI
8ADA'llHIY
in a certain paUlki 11Jatan consisting of three shares, of wliich
"· NI
the plaintiff held two and the defendant one, and that, there- BHAVA
0
MANA'JI.
fore, the plaintiff was entitled to officiate as patil twice a.s
often as the defendant did. The defence was that the action
was not maintainable, and that the defendant and plaintiff
were appointed by the revenue authorities to perform the
work alternately each year. Both the lower Courts threw
out the plaintiff's claim as not maintainable in a Civil Court.
The special appeal was argued before WESTROPP, C.J.,
and LARPENT, J.
Bahiravnath Man,gcah for the appellant.
Manikslui JaMngiralta for the respondent.
W l!STlWPP, C.J. :-Without deciding whether or not the

Civil Courts have jurisdiction to entertain such a suit as the
present, we are of opinion that, even if it be assumed that
the Civil Court has such a jurisdiction, the plaintiff has fail-
ed to show any authority for ·his proposition, that, because
he is entitled to two shares out of three in tho watan append-
ant to the office of Patil, he is, therefore, necessarily enti-
tled to officiate twice as often as the owner of the third share
in the 1oatan. It might be a reason why the Collector, under
Act XI. of 1843 (when it was law), if the two sharers could
not agree a.s to the person to officiate, might have exercised
his discretion in favour of the plaintiff by assigning to him
a longer period of management than to the defendant; but
we do not see that it was at all imperative on the Collector
to have done so, or that the plaintiff has established any such
right, either by custom or otherwise in himself as owner of
two-thirds of the watan, to entitle him to a declaration from
a Civi~ Court that he has a right to a double period of exercise
of the office. We, therefore, affirm the decree with costs.
Note. -Bee, aa to hereditary officers, Bombay A.et IIL of 1814.
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..
234! BO)(BAY HIGH COURT EIP01t'l'8.
[ C1mnNAL J URISDIC"l'ION.]
1871S.
July 6.
REG. v. TruRA'H RA.'ouo.
Offence not triable by Subordinate Jlogutrau-PO&Off' of Di,trict Nagutf'Glt
to annul COIWieticm-Orimi-Z Pro«d11.re Code, S«tioM 2M a,id 29'1.
Where, on appeal from a oonviction, by a Subordinate lfmgistzat.e, of llll

oft'once triable by him, the lfagiltrate or the dilltricl ii of opinion that lbe
endence in the cue establiabea a graver offenoe apiDlt the accuaed ~
triable by the Subordinate Magiatrat.e,
Htltl. that the lfagiatrate or the di.strict baa no powel' so annul the COD•
viction and sentence under Section 284 of the Code of Criminal Procedure.
but llbould report the matter for the orden of the High Court.
THE following case was stated by W. M. P. Coghlan,
Session Judge of Th6.n6., for the opinion of the High
Court:-
" Tukaram R!gho was convicted by Mr. Shripat Pandu-
rung, 2nd Class Magistrate, of intentionally outraging the
modesty of a woman under Section 354 of the Penal Code.
The prisoner appealed to the District Magistrate, who an-
nulled the conviction and sentence in the following order:-
" The evidence recorded by the Subordinate Court in
this case clearly goes to prove that appellant committed the
offence with which he was charged. In the place of com-
pleting the evidence and passing sentence as he has done,
the Magistrate should have submitted the proceedings in a
case of this nature, in order to a more severe sentence being
passed on the accused than that passed by the Magistrate, as
the offence, if the evidence recorded is to be relied on, is one
of attempting to commit rape (Sections 376 and 511 of the
Indian Penal Code), and, as such, one calling for a severe
sentence,. and which the Subordinate Court is not empowered
to try as beyond its competency.
2. "The Court accordingly annuls the conviction and sen-
tence passed by the Subordinate Court, and directs a retrial of
the case by the 1st Class Magistrate in charge of the ,Karjat
T'1oka, with which view the records, &c., a.re transmitted t.o
that Court (Section 284 of the Code of Criminal Procednre).
DigitizedbyGoogle •
BOlfllA Y HIOH COURT Rli:PORTS, 235
S. "I am of opinion that this order wo.s illegal, in that __1_s1_s_._

the 2nd Class Magistrate had convicted Tukaram Ra.gho of .REG.
"·
an offence triable by him, and that Section 284 of the Code TUKA'RA'M
RA.'GllO.
of Criminal Procedure has no applie&tion to the case. Reg.
v. Ckanveraya (5 Bom. H. C. Rep. 65 Cr. Ca.) appears to be
in point, and shows that the District Magistrate's order wa.s
uUra mres as to Section 284 (corresponding to Section 427
of the former Code).
4. c< It seems from Reg. v. Biram<nt, (8 Cale. W. R.
Cr. Rul. 30) that the Bengal High Court was of opinion
that a. Session Judge sitting in appeal may quash an illegal
conviction and direct proceeding according to law ; but
however this may be, it does not bear on the present case,
in which the conviction by the 2nd Class Magistrate was legal.
5. "It appears that the District Magistrate, on entertain-
ing the opinion (as I gather from this order) that Tukaram
Ragho ought to have been tried for attempt to commit rape,
an offence not triable by the 2nd Class Magistrate, ought
to have reported the matter to the High Court in order that;
the erroneous conviction might be quashed and a new trial
ordered.
Qurere-" Would it have been competent to the District
Magistrate to confirm the 2nd Class Magistrate's convic-
tion under Section 354, and then to have received a. complaint;
of attempt to rape, and have committed for trial at the Ses-
sions 7
6. " The alleged illegal action of the District Magistrate
was argued to be a bar to the trial of the case, in that it
invalidated the committal. I, however, held that, the commit-
tal being by a competent Magistrate, the Court was (Crimi-
nal Procedure Code, Section 197) bound to accept it. ''
The case was reviewed by KElrnALL and NA'NA'Bru.'1, JJ.
KDBALL, J., being of opinion that the District Magistrate
ha.d, and NA'NA'Blli '1 HARmA's, J.,.that he had not power to
annul the conviction by the Subordinate Magistrate, referred,
the point to WESTROPP, C.J., under Sectiou 271 B of the
Code of Criminal Procedure.
622-1,
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__
1s1_s._ July 1.-WEBTROPP, C. J. :-The accused Tuk:i.ram Ragho
Rto. was convicted by a Magistrate of the 2nd Class, under Sec-
v.
TUKA'RA'M tion 354 of the Penal Code, of intentionally outraging the
R4'0HO.
modesty of a woman, which is an offence within the juris-
diction of a 1st or 2nd Class Magistrate. The District Magis-
t,ra.te, on appeal by the accused, being of opinion that the
facts in evidence before the 2nd Class Magistrate constitut-
ed the graver offence of an attempt to commit rape, annulled
the conviction and sentence, the offence of an attempt to
commit rape not being within the jurisdiction of the 2nd
Class Magistrate. My brothers Kemball and Nanabhai
Haridas, JJ.-having differed on the question whether it was
within the authority of the District }{agistrate to annul the
conviction and sentence, or whether he, being of opinion
that the offence actually committed was of a graver charac-
ter than that of which the accused was convicted and beyond
the jurisdiction of the 2nd Class Magistrate, ought to have
referred the case to the High Court in order that it might
be dealt with there-have referred the point to me nnder
Section 271 B of the amended Criminal Procedure Code.
The question turns upon the construction of Section 284
of that Code, which provides that" when anY. Court has con-
victed a person of an offence not triable by such Court, the
Appellate Court she.II annul the conviction and sentence of
such Court, and direct the trial of the case by a Court of
competent jurisdiction." The Appellate Court in this case
was the District Magistrate ; the offence of which the accus-
ed was convicted, was " intentiona.lly outraging the modes-
ty of a woman" which, it is not denied, is an offence within
the jurisdiction of a 2nd Class Magistrate and, therefore,
was triable by him. It may be that the facts alleged, if true,
constituted an attempt to commit rape, which is not an
offence triable by a 2nd Class Magistrate. But the 2nd Class
Magistrate did not try the accused for, or convict him of that
offence. Therefore I thin~ that the District Magistrate had
not any jurisdiction, under Section 284, to annul the con-
viction and sentence on the ground that the evidence,
on which the accused was convicted, warranted a graver
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BOMBAY mau COURT REPORTS. 237
charge than the 2nd Class Magistrate had authority to try. 1875.
-- --
The decision in RB<J. v. Ohanveraya (5 Bom. H. C. Rep. 65 Rm.
Cr. Ca.) of Newton and Tucker, JJ., on Section 427 of TuK:;RA'H
the former Criminal Procedure Code, which is similar in all RA'ouo.
respects to Section 284 of the present amended Code, agrees
with my opinion. A dictum at the conclusion of the Court's
remarks in the case of Reg. v. Heeramun Singh (a) is of an
opposite ohara.cter. But, on looking at the language of
Section 427 of Act XXV. of 1861 and Section 284 of the
present amended Criminal Procedure Code, I think it is
explicit and cannot be extended so .as to comprise such a
case as the present.
The difference in language between Clause 5 of Section
297 of the present amended Code and Section 284 of the
same Code fortifies this conclusion. Clause 5 of Section
297 is that, " if the High Court considers that any person
convicted by a Magistrate has committed an offence not tri-
able by snch Magistrate, it may annul the trial and order a
new trial before a competent Court. ,, Here we find the
Legislature using much more comprehensive language when
it clearly intended to give the power of annulling the previ-
ous proceedings, although the charge and conviction may
have been within the jurisdiction of the trying Court. That
power is here given irrespectively of the nature of the charge
and conviction where the evidence leads the High Court to
believe that the offence committed was graver than that
charged, and for which the accused was convicted in the
Court below.
The reply to the Session Judge of Thana should, I think>
be that the District Magistrate had not power to annul the
conviction and sentence passed by the 2nd Class Magistrate,
but should have referred the matter to the High Court.
July 6.-0oram KEMBALL and NA'NA'BHA'I lliRIDA's, JJ. :
-The District Magistra.$0 had not power to annul the con-
viction and sentence passed by the 2nd Class Magistrate, but
should have referred the matter to the High Court.
(a) 8 Cale. W. R. 30 Cr. R.
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187~ It should be pointed out to the Session Judge that he

Rm. was wrong in holding that the committal, being by a com-
v.
TUKA'RA'JI petent Magistrate, he was, under Section 197 of the Code of
R.a.o'uo. Criminal Procedure, boand to accept it. When the Session
Judge found the order of committal to be contrary to law,
he should have reported the proceedings to the High Court,
under Section 296 of the Code, with a. view to getting it
annulled.
Order accordingly.
Spedal Appeal No. 400 of 1874.
July 6.
J AHA NOIRJI ••• ••••••••• (Defendant) Appellant.
SuA'PURJI 1
THE SUPERINTENDENT OF l (Plainti-lr) Res nd t

THE PooNA CITY JAIL. $ ··· ".II :po en •
Limitation .A.ctl:X.. o/1871, Sdi«lvk II., Clou,u63, 84,atad~Butona,a
indemnity boild-.Fraud-Ca.vu of action.
On the 27th July 1868 plaintiff' received from defendant an indemnity
bond, promising to indemnify plaintiff againat the miebehavioar of a third
person. On the Uh Jnne 1870 the third person oommitted an act of em •.
beulement. In an action brought by plaintiff on the 28th June 1873 on
the indemnit1 bond, the first Court held the claim barred under Clauses 63
and 84 of Schedule II., Act IX. of 1871. In appeal that decree wu revereed,
and the claim allowed under Clau,e 9oof the same ecbedule.
The High Court, on special appeal, Juld that Clauses 63 and 84, and nol
Clause 95, applied to the cue ; ae the suit was one, not for relief on the ground
of fraud, but for breRCh of a contract to indemnify againe\ baud.
THIS was a. special appeal from the decision of H. Crowe,
Assistant Judge of Poona, reversing the decree of
Ma.Mdev Govind Ranade, 1st Class Subordinate Judge
at the same place.
The special appeal was argued before W:zsTROPP, C.J.,
and LA.RPENT, J., on the 6th July 1875.
Gandhibai Jhangirji Modi for the appellant.
• Dhirajlal Mathuradas (Government Pleader) for the re-
spondent.
'rhe facts of the case fully appear from the judgment of
the Court <lclivcred by
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BOllB~Y HIGH COURT REPORTS. 239
WEsTROPP, C.J. :-This suit bas been brought by the ~7~

Superintendent of the Poona City Jail upon a bond, given SaA'PuRJ1
. .
by the d ef endant on t h e 27th July 1868, to mdemmfy, to
1
JAHA NGIRJI
v.
the extent of Rs. 4,000, the plaintiff aD'A.inst
o-
any embezzle- THE SunR-
INTENDENT
ment or other misbehaviour of Dorabji Hormasji Chinay, o.- THE PooNA
CITY JA.IL.
the gaoler. The latter, on the 4th of June 1870, embezzled
a fine of Rs. 1,000 paid to mm by one of the prisoners in
his custody, and was, on the 21st November 1871, convicted
and sentenced in respect of that offence. The plaint was
not filed in this suit until the 28th June 1873. The defend-
ant bas pleaded the Limitation Act IX. of 1871 as bar-
ring the suit, it not having been brought within three years
after the occurrence of the act of embezzlement on the 4th
June 1870.
The Subordinate Judge, Mr. Rina.de, relying on Clauses
84 and 63 of Schedule II. of the Act, has held the plea to
be good and the suit barred.
The Assistant Judge, relying on Clause 95 of the same
schedule, has reversed the decree of the Subordinate Judge,
and made a decree in favour of the plaintiff for Rs. 1,000,
the amount claimed and costs.
The defendant bas specially appealed to this Court against
that decree.
Wo a.re unable to support the decree of the Assistant
Judge.
Clause 95, on which he relied, provides that in suits "for
relief on the ground of fraud " the three years' limit shall
begin to run from the time " when the fraud becomes known
to the party wronged''. It is tme that the fraud of tho
gaoler was the circumstance which entitled the plaintiff to
call upon the defendant to indemnify him. But the cause
of action is not the fraud itself, but the breach of the defend-
ant's contract to indemnify the plaintiff. The suit, there-
fore, is one, not for relief on tho gronnd of fraud, but for a
breach of a contract to indemnify against fraud. And &c-
tion 19 of the Act strengthens our view as to tho question
whether Clause 95, Schedule II., was intended to be appli-
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1875. cable to such a. case as the present. Section 19 provides

SHA'PURJI that " when any person having a right to sue has, by
JAHA'NOIRJI
v. means of fraud, been kept from the knowl edge of sueh ng
• ht
THE SUPER· or of the title " on which it is founded and where any docn-
1.sTENDEsT 1
oF THE PooNA ment necessary to establish such right has been fraudu-
CITY JACL. 1entIy concea.led, t he tune
. . d f or commencmg
1·1m1te . a sui.,
...
(a.) against the person guilty of the fraud ur accessory thereto,
or (b) against any person claiming through him otherwise
than in good faith a.nd for a. valuable consideration, shall be
computed from the time when the fraud first became known
to the person injuriously affected thereby, or, in the case of
the concealed document, when he first had the means of pro-
ducing it or compelling it.a production." Here there has
not been any allegation that the defendant was in any wise
accessory either to the fraud of Dorabji, .the gaoler, or to the
concealment of it. And there is not any provision in Sec-
tion 19 prolonging the right of suit against a.n innocent
guarantor.
The case seems to us to come within the Clauses 63 and

84 relied upon by Mr. Rana.de. Clause 63 provides that in
a suit " upon a promise to do anything at a specified time
or upon the happening of a special contingency, the period
of limitation (three years) shall begin to run at the time
Epecified or at the contingency happening". Here the con-
tingency, viz., the act of embezzlement, occurred on the 4th
June 1870, i.e., 3 years and 24 days before the plaint was
filed. Clause 82 provides for the case of a suit by a surety
against the principal debtor; Clause 83, for a suit by a. surety
against a. co-surety ; and Clause 84 provides for the case of
a suit" upon any other contract to indemnify", and pre-
scribes that the three years' limit ahall commence to run
"when the plaintiff is actually damnified ". Here the plain-
tiff was actually damnified on the 4th June 1870 by the act
of ·embezzlement, a.nd, as already observed, the suit has
not been brought within three years from that time.
We must reverse the decree of the Assistant Judge, and

dismiss the claim with costs of suit a.nd both appeals.
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BOIIBAY HIGH COURT REPORTS°"; 241

MAKANDA's KA'LrnA's and SHANKARDA's 1875.
July 30.
(Original Defendants) ... Appellants.
DA'DA1BHA'1
SHANKARDA's HARIBHA'I (Original Plain-

tiff) ............................ ~. . . . . .. . .. Respondent.
•&in' mortgage (morlgagt tciihout poutuion in G~rdt}-Regi,tration
.A.et XX. of 1866, Section 50.
Under Section 50 of the Registration Act XX. of 1866, a regi1tered in-
strument takes effect aa regard11 the property comprised therein against
every unregistered instrument relating to it, whether or not the grantor of
those illltrumeuts be the same.
Ju between himself and bia mortgagor and also as against any subsequent
unregistered allllignee of the latter, an unregistered adn mortgagee in
Guserat has a perfectly valid .:barge upon the p~rty mortgaged ; but his
right againat such property is liable to be defeated by the mortgagor or his
heir or such 1188ignee oonveying it to another by a registered instrument
while his own title remains unregister..d.
Laklimichand v. Ka$lur (9 Bom. H. C. Rep. 60) dissented from.
Quare-Whether notice, to the purchaserI of the e:1i1tence of a prior un-
registered mortgage would i.n any way aff'ect the provisions of the Registra-
tion Act.
THIS was a special appeal from the decision of J. W.

Walker, Acting Assistant Judge at Ahmedabad, revers-
ing the decree of the Ahmedabad Subordinate Judge.
The appeal was heard by WESTROPP, C.J., and NA'NA BHA 1
1 0
IIA.RIDA'S, J.
Nagindas Tulsidas for appellants.
Dkwajlal Mathuradaa (Government Pleader) for respond-
ent.
The facts and arguments frilly appear from the following
judgment of the Court delivered by
NA'NA'BHA'I lliRIDA's, J. :-This suit was instituted by tho •
plaintiff, Shankardiis Haribhiii, to have his right declared to
sell, (in execution of a decree obtained by him against Lala
Val!,) a house situated in the village of Aslali, in the Ahmed-
abad District-the Subordinate Judge having ordered the
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242 BOMBAY IIIOH COURT RIPORTS.
•
18i5. attachment, placed thereon at the suit of the plaintiff, to be
MAKANDA's raised at the instance of Shankardas Dadabhai, the second
KA'LIDA'S
and
t
def en WLn.
SHANKARDA'S
D.&.'o~.BHA'i The facts of the case, either found by the lower Court or
SHANJUR1!A's not disputed, are as follows :-On the 7th of February 1867
liARIBHA 1• the first defendant, Makandas Kalidas, obtained a money
decree in a suit against Lala Vala and his wife, but did not
proceed to execute it until 1870. In the meantime, on the
26th April 1868, Lala Val6, the owner, mortgaged the house
in dispute to Jora Re.nchhod, who obtained possession of it
under his deed of mortgage; and subsequently, on the 11th
May 1869, Lala Vala also Ban-mortgaged the same house to
Shankardas Haribhai, by Exhibit No. 27, in consideration
of a sum less than Rs. 100. Subsequently, Makandas Kali-
da.s, in ex.ecution of his above-mentioned decree of the 7th
February 1867, attached the house as belonging to his judg-
ment debtor, L6.la Vala, whose interest in it was accordingly
sold by public auction to Kalidas, the father of Maka.ndas,
the first defendant, on the 3rd February 1870. On the 16th
June 1870, Shankardas Haribhai, the present plaintiff, filed
a suit upon his Ban mortgage against Lala Vala, whose interest
in the house, as above stated, had already passed to Kalidas,
and obtained an ez parte decree on the 5th July 1870. In
the meantime, Kalidas by Exhibit No. 10 sold the house for
Rs. 95 to the second defendant, Shankardas Dadabhai, on
the 22nd June 1870, after having redeemed and recovered
. possession of it from ,Tora Re.nchhod. While in Shankardas
Dadabhai's possession, as such purchaser, the house was
attached by the plaintiff, Shankardtis Haribhai, in execu-
tion of his ex parte decree against Ula Vala, and that attach-
ment was raised by the Subordinate Judge, as stated above,
upon Shankardas D6.dabhai's application under Section 246
of the Code of Civil Procedure. Hence this suit by Shankar-
das Haribhai to establish his right to sell the house in dis-
pute in execut.ion of his decree.
It is difficult to understand why Makandas Kalida.s was
made a party. The contest is really one between Shankar-
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•
d:is HnribMi and Shankardas DadabMi, and the question 1875.
---
we hnve to determine is, what are their respective rights? MAKANDA'B
KA'LIDA'S
The lower Appellate Court held thai Kalidas having, at Snui~faoA's

the Court sale, purchased only the right, title, and interest DA'DA'Bw.'1
of Lal.!i Va.la, Shankardiis Dadabhai, the assignee of Kalidas, Sn.&N;~Ro.l'a
,cannot be considered to have acquired anything more ; and HARIBIU'i.
that as Shankardiis Haribhai was entitled, as against Lala
Va.la, to realize his 3(1,fl, lien by the eale of the house, he was
equally entitled to do the same as against Shanlmrdas Dada-
bhai who stood in Lala's place. It is true that in Guzerat
a san mortgage-i.e., a mortgage not intended to be accom-
panied by possession-is perfectly valid even as against a
subsequent pu.rchaser. But there are important circum-
stances which do not appear to have been brought to the
notice of the Assistant Judge, and which have a. very import-
ant bearing upon this· case. Both the sa1t mortgage, Exhibit
No. 27, (which the plaintiff relies upon,) and the deed of
sale, Exhibit No. 10, (which the defendant Shankardaa
Dadabhai relies upon,) are documents whose registration
was optional under Clause 1, Section 18, of Act XX. of 1866,
and relate to the same property, the house in dispute. One
of them-the sa11. mortgage, though prior in date, is unre-
gistered ; while the other, too deed of sale, is registered. in
accordance with the provisions of that Act. Such being the
case, the question is, what is the effect of Section 50 of the Act
upon them ? They were both executed after that Act came
into force. The eection runs thus :-u Every instrument of
the kinds mentioned in Clauses 1, 2 and 3 of Section 18 shall,
if duly registered, take effect, as regards the property com-
prised therein, against every unregistere~ instrument relat-
ing to the same property, whether such other instrument be
<>f the same n.a.ture as the registered instrument or not."
These words a.re very clear, and admit of only one con-
struction. Unless, therefore, it is satisfactorily made out
that Section 50 does not apply to the documents before us,
we are bound to hold that the deed of sale, Exhibit No. 10,
which has been "duly registered", shall "take effect. as
11622-i
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BODAY BIGB COURT REPORTS.
1875. regards the property comprised therein", against the plain-

?tlA.~AsoA·s tiff's" onregistered "Ban mortgage, Exhibit No. 27, "relat-
K.a. Lll>A'8 •
and mg to the same property ".
8BASKA.kDA 8
DA'DA'BHA'I
It was, indeed, argued by Mr. DhiraJ·1a1 Mathuradas for
"· the respondent that Section 50 does not apply to these docu-
8HA'.'iKARDA'a • B
H..uuBHA'I. ments, masmnch as they were not by the same grant.or. ut
we do not find in the Act any indication that the Legislature
intended to provide only for documents by the same grant.or.
The words of the section are wide enough to include docu-
ments executed by different grantors as well as those
by the same grant.or. Besides, it cannot, we think, be
denied that bond-fide purchasers from the original owner's
heirs or assigns require protection again~t se<;ret or concealed
conveyances and charges no less than those from the original
owner himself, and that, therefore, their case is as much
within the mischief the Act was intended to remedy. We
must, accordingly, hold that it is not, by any means, neces-
sary, under Section 50 of Act XX. of 1866, that the two
rival deeds must have been executed by the same grant.or ;
nnd in this view we are fortified by the decision of the House
of Lords in Warburton v. Lovdand (a), where the same
question arose upon the construction of a somewhat similar
Irish Registration Act, 6 Anne, C. 2.
!rt that case the facts were as follow :-A term for years
in land being vested in B for life, with remainder to E his .
daughter absolutely, Band E, on the marriage of the latter,
conveyed, by a deed not registered, to trustees to the use of
B for life, with remainder to W the intended husband for
life, with remainder over. After the death of B, W being
in possession conveyed by a deed which was registered ; it
was held by the House of Lords, in affirmance of the decision
of the Court of Exchequer Chamber in Ireland, which had
affirmed that of the Court of Exchequer, that the lattei: con-
veyance (a lease) was valid against E, who, after the death
of W, claimed the term under the unregistered settlement.
The Court of Exchequer Chamber bad been equally divided
on the question. The decision of the House of Lords was
given in conformity with the unanimous opinion of the
(a) 6 Bligh, N. R. I ; 8. C. 2 Dow and Clark 480, I Hudaouand Brooke 623.
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English Judges. It was in that case contended, on behalf of 1875.

E, that the Irish Registry Act, 6 Anne, C. 2, applied only to MAKANDA'S
KA'LIDA'S
cases of conveyance from the same person, and that, if this and
t th • te ed f st
were no so, e regis r conveyance o a mere ranger DA'DA'BHA'x 8HANKABDA'8
to the title might prevail against the unregiste~ convey- SHANKARDAS"· ,

ance of the true owner; and it was argued that W was a HAJUBHA'I.
stranger to the title, if the unregistered settlement were
laid aside. But this was denied by Tindal, C.J., who gave
to the House the unanimous opinion of the English Judges.
He said that, putting aside the unregistered settlement,
the term for years would, on the death of B, have vested
jure marit·i in W, inasmuch as, independently of the unre-
gistered settlement, his wife E was entitled to the term in
remainder after the death of her father B, and that in
right of E it would have vested in her husband W with full
power in him alone to dispose of it, so he was no stranger to
the title. Tindal, C.J., was careful to guard against any
supposition that a mere stranger to the title could, by the
operation of the Irish Registry Act, ·make a valid convey-
ance, and so also was Burton, J ., in his judgment in the Court
of Exchequer Chamber in Ireland. Referring also to the
English Registry Act, 2 and 3 Anne, C. 4, the latter said :
"It has never been supposed that, under that statute, a pur-
chaser, by a registered conveyance from a mere stranger,
could acquire a title by such a conveyance merely because
unother person, having a title, had theretofore conveyed it by
an unregistered deed" (1 Hnd. and Br. 637).
It was further argued that Lala, after the sa1i mortgage
to the plaintiff, had only the equity of redemption in him,
and that, therefore, Shankardas Dadabhai could not be
considered, by the simple act of registering his deed of sale,
to have acquired any higher right; and the decision in
L,ikhmichand v. Kast1ir (b), which was cited to us, may, no
doubt, be regarded as supporting such contention. But we
are not prepared to follow that decision. Argument, similar
to that addressed to us, was resorted to unsuccessfully in
(b) 9 Bom. H. C. Rep. 60. See, na to the necessity for tbe rt>gistration o{
a cert.ifi~atc of sale, Pndit T, Rnkhmai, 10 Bom. H. (J. R~p. 43[>. ltl11lji v.
A11upram, i Bom. H. (J, Rep. 130 A.V.J.
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246 BOJl'.BAY HIGH COURT REPORTS.
18i5. Warburton v. Loveland,. Besides, such argument would

AKAND•'s equally apply to every subsequent alienation by Lala himself.
KA~~r·s Suppose he had sold the holJSe after redeeming it from Jora
SHANKARDA's Ranchhod and the purchaser had got his conveyance regi·s-
DA'oA '»HA' I '
ti. tered. It could not, we think, be contended that in that
8HANKARDA'8 . h h
HAJUBH.l'L case t o pore aser wou
Id not h ave got the horrse =
L - - L-
uvm
the unregistered san charge. Suppose, again,. that, having
by a registered instrument let it for a term of years,. be had
only the reversion in him, which ho sold, first to A for Rs. 50
by an unregistered deed, and then, before A took possession
(c), to B for Rs. 99 by a registered deed. Here also the argu-
ment would equally apply. As between himself and A, the
unregistered deed having conveyed the whole of his right to
A, he would have nothing remaining in him to convey to B ;
and yet,. as between A and B, the Registration Act distinctly
provides that B's registered deed shall take effect as against
A's prior unregistered one. To hold otherwise would be
entirely to disregard and evade the cle.ar provisions of Sec-
tion 50 of that Act to the prejudice of registered purchasers
whom the Legislature intended to protect. The position,
then, of an unregistered sun mortgagee in Guzorat seems to
ns to be this.-If the mortgagee is one whose registration is
optional, as between himself and his mortgagor., and also as
ago.inst any subsequent unregistered assignee of the latter,
he has a perfectly valid charge upon the property mortgaged;
but his right against such property is liable to be defeated
by tho mortgagor, or his heir, or such assignee, conveying
it to another by a registered instrument while hls own title
remains unregistered.
With reference to the case of Lakhmiiliand v. Kasltlr,
already mentioned, it seems tksirable to observe that the
Privy Council in Raja Enayet HoBBain v. Giri.dhari Lall
(12 Moore's Indian Appeals 366, 378, 379, S. C. 2 Bong. L. R.
75 P. C. C.) held that there was no foundation, in principle
or authority, for any distinction between the right of a person
standing in the position of a claimant under an oxocntion
sale and a claimant under any other conveyance or assign-
{() Sec !l Bom. H, C. Rep. 121, H7.
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ment. The struggle there was to obtain a preference for a 1875.
claimant nnder an execution sale. MAK:ANn,·s
KA'Lrn,·s
In this view of the matter we must reverse the decree of and
the Court below, and reject the claim with costs throughout. 8;:,;!~:_~;s
We may observe that no question of notice or fraud arises SH.&ll:~oA's
in this case, as none such was ever saggested in the Courts fu.1UBHA'1.
below. We are not, therefore, called upon to consider
~hether notice on the purchaser's part of the existence of a
prior unregistered charge would, in any way, affect the pro-
visions of the Registration Act; nor, in the view wo have
taken of those provisions, is it necessary for us· to express
any opinion upon the point raised in the second ground of
appeal to us, namely, whether Kalid,s, having pa.id off Jora.'s
prior mortgage before the term of that mortgage had expired.
did not thereby become an assignee of that mortgage, and,
as such, entitled to resist the plaintiffs claim (d).
Decree reversed and claim rejected;
NoU.-The ruling in this caee was followed in S. A. No. 133 of 1873.
Regular ~ppeal No. 12 of 1875.

LA'LBHA'I LAKIIMIDA's ......... (Plaint(ff) Appellant. September 23.
NAvA'L Mm KAMA'LUDIN HusEN
KHA 1N ........................ (Defe:ndant) Respondent•
. Oertificau of aak-Regiatratwn--Practice.
The plaintiff, aa purchaser at a Court's aale, sued in 1871 for poeaeesion oC
certain immoveable property, and tendered in evidence a sale certi11cate dated
20th September 1865. The first C-ourt decided against' the plaintiff on the
ground, among others, that the certificate wae not registered, though regis-
tration of it was compulsory. On the 9th February 1875 the plaintiff filed
an appeal in the High Court ngainet that decree, and on the 26th July 1875
applied to that Oourt for permi88ion to giTe in evidence a oew certificate of
eale, iuucd on the 1st 1''ebruary 1875, regarding ihe same property as that
to which the certificaw or the 20th September 1865 related.
Held by the High Court that, -aa the new certificate was issued aft.er the
firet Court had made its decree, the High Court ought not to receive it or to
1mggest or facilitate any application to the lower Court for a review of ita
decree on documentary evidence which had no cxis'8nce when that Court
made such decree.
(d) l:iec ltchardm v. .Dnv1frcim, 11 Bom.11. C. Bcp. 41,
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248 '*
BOMBAY HIGH COURT REPORTS•
1875.
(S. A. 437 of 1872).
•
Distinction pointed out. between tltis·cll8e &11d Mohidi11 v. Maluuldji
LA'LBHA'I
LAXHllUDA's Qum-e-Wbether, under the circumstances of this case, the Subordinate
?· M IR Judge, who iaaued the new certificate of sale on the 1st February 1875, ooght.
N AVAL
KAMA'I.UDIN to have so illlued it, in order that the plaintiff might register it, the plaintiff
Huso having &!ready lost, by his own lachea, the right to register the original cerli-
KHA'N. &ate.
Qu~-Wbether the Comt of first instance ought to have reoeived the
aecond certificate if it bad been issued and tendered in evidence euhllequentJJ
to the filing of the euit, bot previously to the original bearing.
T HIS was a regular appeal from the decision of Makundrai

Maned.i, let Cla.ss Subordinate Judge at Surat, in suit
No. 1062 of 1871.
The question raised and argued in this case was,. whether
the plaintiff, who brought his suit a.s purchaser under a certi-
ficate of Court's sale which wa.s not registered, notwithstand-
ing its registration was compulsory, should be permitted in
appeal to give in evidence a new certificate of sale, relating
to the same property, obtained and registered after the suit
had been decid~d.
The appeal was argned before WESTROl'P, C.J., and Kx1l-
BALL,J., on the 23rd September 1875.
Dhirajlal ¥athuradas (Government Pleader) for the appel-
1ant contended that the new certificate of sale, issued on the
1st February 1875, and properly registered, ought to be
received in evidence by the High Court. He cited Mohidin v.
Maluf,daji (S. A. No. 437 of 1872).
Nagindas Tul.sida11 and Ohundulal Mathwradas for the
respondent were not called upon.
WESTROPP, C.J. :-This cause was decided by the Subordi-
nate Judge on the 11th November 1874, and he, amongst
other grounds, made a decree against the plaintiff, because
the two certificates of sale (Exhibits 2 and 3), dated the 20th
September 1865, were unregistered. It is admitted by the
pleader of the plaintiff that the decision of the Subordinate
Judge on that gr?und cannot be impeached, it being folly
supported by Padii v. Rakhmai (a) and many other cases to
(a) 10 Bom. H. C. Rep. 435,
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"
BOMBAY IIlOH C(?UltT RfORTS. 249
tbe like effect. The plaintiff's pleader, however, seeks by 1876.

his darkhast, of the 26th July 1875, presented in this appeal, LA'LBHA'1
which was filed on the 9th February 1875, to retrieve his LAKH:.1DA's
cause by asking permission to give in evidence new certifi- NKAvA:L Mm

AMALUDIN
cates of sale, issued on the 1st of February 1875, of the two Hus&N
villages the subject of this suit, and since registered, and KuA'N.
cites the case of Mohidin v. Maliadaji (S. A. No. 437 of 1872)

decided in this Court on the 16th of June 1873. There
the original certificate of sale had been lost, and the Sadar
Amin granted to the plaintiff a new certificate of sale, which
not only had been registered before the suit was brought, but
also . before the registration of the certificate of sale, which
the defendant there relied upon. And in Lddu Saheb v.
Irbassapa (mentioned in that case) the new certificate of
sale was, on the 4th October 1871, ordered by Melvill and
Kemball, JJ., to be granted to the petitioner, because the
original certificate had been detained, without his fault, in the
Court of the Subordinate Judge until the time for registration
had expired. Those cases, therefore, wholly ·differed in their
facts from that with which we have to deal here. The original
certificates of the 20th September 1868 have not been lost,
and have been filed as exhibits and relied upon in this cause
before the Subordinate Judge. The circumstance that they
are unregistered, was wholly owing to the plaintiff's own fault,
and not to that of any Court. We h~ve strong doubts whe,.
ther, under such circumstances, Mr. Barjorji Edalji, a Subor-
dinate Judge, ought to have issued any new certificates of sale
in order that the plaintiff might register them, he having lost
by his own laches the right to register the original certifi-
cates. Howsoever that may be, the question here, being
whether the plaintiff had a title as purchaser at the time of
the institution of this suit on the 10th of August 1871, we
cannot permit him to give in evidence certificates of sale
obtained and registered some years after the suit was com-
menced,and some monthsafter it was decided. It is more than
questionable whether, if they had been issued and tendered
in evidence .subsequently to the filing of the suit, but pre-
viously to the original hearing, the Judge of first instance
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250 BOXBAJ. HIGH. COURT REPORTS.
1875. ought to have received them. We are quite certain that,

w ·Lruu:1. issued, as they were, after he has made his decree, we ought
L.UtHIIID.A. 8
"· =
no t ,.- receive
• them, nor onght we t.o suggest or faci}"1tate any
~!rA~~!11! application t.o him for a review of his decree on documentary
Htr11u evidence that had no existence when he made it. We affirm
Klli'•· that decree with coats.
Decree a.ffinned.
(ORIGINAL CIVIL JURISDICTION.]
Suit No. 556 of 1873.

Appeal No. 266.
July 3rd. SoRA'BJI NABS.A.RVA'Nn} • •
--- DUNDAS ••• .... • • ••• • • • • • • Plaintiff and Appellant.
THE J USTIOEB •OF THE PEACE } Defendants and Re-
FOR THE CITY OF BOMBAY. spondents.
&mlJay AaJI. o/1865-Ejectmmt--Limitation-Aequiirition of land/or
public purpoau-Compemation-Mesne projiu.
Bombay Act II. of 1865, Section 240, does not apply to suit.a in the nature
of an action of ejectment.
Acts relating to the acquisition of Janda for public purpoees must be con•
&trued strictly in favour of the subject,
The Court will not oblige the plaintiff in a suit in the nature of an action
of ejectment to accept compeneation.
Quare-Whether a claim to recover the mesne profits of land for which the
plaintiff sues in ejectment comes within the provisions of Bombay Act II,
of 1865, Section 240 t
Price. v. Khilat Cha.ndm Ghoae (5 Beng. L. R. App:.r. 50) and the judg-
ment of Phear, J., in POO'TM ChfWkr Ro,;v. Balfour (9 Cale. W. B. 535 Civ.
Rul.) approved,
THIS was an appeal from the decision of Sargent, J.,

di11missing a suit brought t.o recover possession of certain
land of which the plaintiff alleged that he had been deprived
by the defendants in 1868, and to recover the Qlesne profits
of the same land received by the defendants.
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DOKBAY HIGH COURT RIPORTS. 251
..
Pigot and Purcell, for the appellant, cited Poorno Chun- 1875.
der lloy v. Balfour (a), and Price v. KMlat Cha1ulra Ghose (b). SoaA'BJ1
N A88AJW A 'NJI
DUNDAS .
Scoble, Advocate General, and Lang, for the respondents, T 11.
1111: JUSTICRS
cited L<Yr(l Oakl,ey v. Tke Kensington Canal Oompany (c), oF TH.K PEA.ex
Wkitehouse v. FeUcwes (d), Ll,oyd v. Wigney (e), H'J.rdwick v. ~: ~~:.Y
Moss (!), Newton v. Ellis (g), PoulJJum v. Thfrst (h), and
Wilson v. The Mayor, ~c., of HaUfaz (i).
The facts of the case are fully set forth in tho following
judgmentof the Court-WEsTROPP, C. J., and G&EBN,J.-
delivered by
WESTROPP, C.J.:-The first paragraph of the plaint states

that this suit is brought to eject the defendants from certain
land of the plaintiff, and to recover the rents and profits
thereof received by the defendants to the use of the plaintiff.
The second paragraph contains the description and boun-
daries of the plaintiff's land. The 3rd and subsequent para-
graphs, down to the end of the 7th, tnM:le the title of the
plaintiff from one Jamsetji Boga Modi in the year 1798.
The 8th para.. ~lleges that the plaintiff was in possession
of the land from 1858. The 9th para. states that a. portion
of the plaintiff's land consisted of an open yard, not built
upon, situate between the plaintiff's house and Rampart Row,
and about 80 square yards in extent. The 10th and 11th
paras. contain the following averments :-" In the month of
February 1868 the Municipal Commissioner for the City
of Bombay by his servants and agents broke and enter-
ed the said yard of the plaintiff, and fixed certain boun-
dary marks therein. The said Municipal Com missioner
in the month of July 1868, by hie servants and a.gents
without the plaintiff's consent and against his will, took
possceeion of all the ea.id yard lying within the en.id
boundary marks, and proceeded to build certain stalls or
(a) 9 Cale. W. R. 535 Oiv. R.uL (b) 5 Beng. L. R. Appx. 50,

(c) I> B. and Ad. 138. (cl) 10 C. H. N. S. 76~.
(e) 6 Bing-. 489. (/) 7 H. and N. 1:16.
(g) 6 El. and BI. 115. (n)36 L. J. O. P. ~5.
(i) 3 L. R. 114 Exch.
B 622-j
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252 BOlfBAY HIGH COURT RBPORT8,
1875. shops thereon, and has kept the plaintiff out of the poseession
SoRA'BJI and enjoyment thereof, and has prevented the plaintiff, his
N,uisARVA'NJI family and tenants from having ingress and egress through
DtTNDil • '
"· the said yard to Rampa.rt Row." The plaint then prays
THE JUSTICES
or THE Pu.CB that the defendants may be ordered to qmt •
and de}"1ver op
~; &~~ possession to the plaintiff of the piece of land containing
80 square yards, situate between the plaintiff's house and
Rampa.rt Row, and may be ordered to pay to the plaintiff the .
sum of Rs. 11,000 for mesne profits.
The defendants by t.heir written st:.atemeat submit that
the soit, having been instituted more than three months
after the accruer of the ea.use of action, is barred ;under tho
provisions of Bombay Act II. of 1865 and Bombay Act III.
of 1872, or one of them. They further contend that the
so-called yard never was in the possession of the plaintiff
or any of his predecessors in title, but was a piece of vacant
ground in the possession and occupation of Government.
The case came on for hearing before Sir Charles Sargent
on the 17th August 1874, when five issues were raised; but
the learned Judge, holding on the first of them, that the
suit was barred, passed a decree in favour of° the defendants
with costs, without taking evidence or recording findings on
the other issues.
Against that decree the plaintiff now appeals, and the
arguments addressed to us have, of course, turned chiefly on
the question of limitation. There can be no doubt that this
suit is mainly in the nature of an action of ejectment,
brought to recover possession of land, of which the plaintiff
says he has been wrongfully dispossessed, and, as ancil-
lary relief, seeks to recover the mesne profits received by
the defendants from that land. The chief question is,
whether the rule of limitation, contained in Bombay Act
II. of 1865, Section 240, which was in force at the time of
the seizure of the land by the Municipality (Section 287 of
Bombay Act Ill of 1872 is substantially identical with it),
applies to suits in the nature of an action of ejectment, and
for the decision of that q uostion it has been necessary for us
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BOMBAY HIOH COURT UPORTB, 253
to consider the whole Act. Section 240 is as follows :-" No 1875.

writ or process shall be issued against or served upon the SoRA ·BJ1
J ust ices
. oi .p eace f or th e city
. of B ombe.y, or any of them, or NARBARV
DuN»A•
AN.JI
the Commissioner, or any of his officers, or any person acting T H .... Jv.USTJCES
under the direction of the Commissioner, f o,r a,iything done op THE PEAcs
• , • FOR THE CITY
&r intended to be done -under the powers of thu .Act, until the OF Bo1UAY.
expiration of one month next after notice in writing shall
have been delivered or lefl; &t the office of the Commissioner
or at the place of abode of the intended defendant, stating
with reasonable certainty the cause of such action, and the
name and the place of abode of the intended plaintiff and
of his attorney or agent in the cause; and upon the trial of
any such action the plaintiff shall not be permitted to go
into evidence of any cause of action, except such as is stated
in the notice so delivered, and, unless such notice be proved,
the Court shall find for the defendant ; and every such action
shall be commenced within three months nea:t after the accrual
of the cause of action and not afterwards ; and if any person
to whom such notice of action is given shall, before action
brought, tender sufficient ame:-nds to the complainant, such
complainant shall not recover in any such action when
brought, and the defendant shall be entitled to be paid his
costs as between attorney and client~by the complainant;
and if no such tender shall have been made, it shall be law-
ful for the defendant in such action, by leave of the Court;
where such action shall be pending, at any time before issue
framed, to pay into OO'Urt such sum of money as ho shall
think fit, and thereupon such proceedings shall be had as in
other cases where defendants are allowed to pay money into
Court." Assuming, as we must, for the purposes of the
present appeal that the plaintiff truly alleges the property
to be his and to be wrongfully in the possession of tho defend-
. ants, we have to decide whether tho plaintiff is barred of
his remedy because he has not given the notice or filed his
suit within the time required by Section 240 of Bombay Act
II. of 1865. Looking at the provisions of that sE:ction with
respect to the tender of sufficient amends, and as to payment
of money into Court, and also taking into consideration
other sections of the Act, which we shall presently mcntioD,
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BOJDJ.Y mau coun UPOns.
VJ75. we think tJiat Section 240 is not applicable to such a l!l1li&

"' Sou·~· 88 the present, brought for the pmpoee of n,cova iug posaes-
of !---1..}e ~
.P4111AEVA llJ1 •
Dmo,.u 8lOl1 u.uJUUYc:au property. An action
. of e_Jectment
• •
18 no.
THE J~ITlCl'JI brought to reooTer damages (snJlicient amends) for an ad
or TID P&Aca "done or intended to be done " under the nnwers of Bom-
iroa TH& CJTY r- ··
or &1111,u. bay Act II. of 1865. The present is not, in 80 far as it
11eeb restoration of the land, a smt to recover monetary
compensation for a wrongfol act, but to recover poeeession
of property alleged to be that of the plaintiff, and, therefore,
does not appear to be an action of the claas eomemplated
by Section 240.
Were we to hold that an action of ejectment is within the

acope of Section 240 of Bombay Act II. of 1865, we should
be ruling that, by mere seizure and wrongful possession for
three months, immoveable property might be acquired by the
Corporation. Sections 108 and 109 point out how the Corpo-
ration, if it desires to acquire the immoveable property of
others, may lawfully do so. Section 108 rnns as follows:-
" The Commissioner may, with the sanction of the Justices,
agree with the owners of any land for the absolute purchase
thereof for the purpose of laying out and making new streets,
or of widening, enlarging, or otherwise improving any of
the public streets for any purpose whatever connected with
the conservancy or general improvement of the city."
And Section 109 says: "When there is any hindrance to the
acquisition, by purchase, of any land or building required for
the purposes of this Act, the Governor in Council, upon the
application of tho Commissioner, and after such inquiry as
may be thought propet, may declare that the land or build-
ing is needed for a public purpose, and may order proceed-
ings for obtaining possession of the same for Government,
and for determining the compensation to be paid to the
parties interested, according to any laws now or hereafter to
be in force for the acquisition of land for public purposes.
And the Governor in Council may vest such land or build-
ing in the Justices on their paying the compensation
awarded." In the present case both parties agree that the
land has been taken for a public purpose. It is not pretend-
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BOKBAY HIGH COURT R'IPORTB. 255
cd that it has been purchased, and Section 109 provides 1875.
that, where the Justices cannot agree with the owner of the 8oRA'BJ1
• • • NA811ARVA'NJI
land on the pnce to be p&1d for it, they can only proceed DuNnA•
through Government. The Acts which enable Government TH:s j;BTICI!8
to acquire land for public purposes ordain a special procedure, ov THE P.uc11:
POR THE CITY
and it is not pretended that any such procedure has been o• Bo.lUIAY.
resorted to in the present instance. One of the ma.in objects
of the notice required by Section 240 is to enable the Corpo-
ration to make compensation, and it is difficult to suppose
that the Legislature intended to include a suit for tho recov-
ery of land within that section. There is nothing in that
section to compel a person to accept compensation for land
seized by the Corporation ; nor is there in any statute, that
we know of, any provision to the effect that, where wrongful
possession is taken of land, the party suing to recover
possession of his land should be compelled to accept com-
pensation by money paid into Court. We are of opinion
that this part of Bombay Act II. of l 865 only applies to
those cases which a.re cases for compensation, and the Court
never says, in a suit to recover possession of land, that it is
a case for coi:ppensa.tion. It mast decide either that the
plaintiff is entitled to have the land restored to him, or that
he is not.
It is farther to be noticed that in Acts of limitation care

is always taken to provide for the cases of persons beyond
the seas, or under disability, such as minority, coverture,
and lunacy ; but in Section 240 there is no such provision.
We cannot believe that the Legislature intended that a minor,
for instance, whose land had been seized by the Corporation,
and who, by reason of his minority, was unable to sue for
the recovery of it within the period specified in Section 240,
should be deprived of all rumedy.
Moreover, Acts relating to the acquisition of lands for

public purposes must always be construed most strictly in
favour of the subject (see I Boulnois Rep. 565; 9 Bom.
H. C. Rep.190, 191; 15 Q. B. 1045, 1046). The mode of ac-
quisition, being di.i:itinctly laid down in Scctio.as 108 and 109,
Digitized by Google
256 BOMBAY HIGH COURT BBPORTS,
1875. must be followed ; and we should require very clear words to

SoRA'BJ1 that effect in a section so arbitrary as Section 240 before
NA.SBARv.a.'N.JI , • d d . 1d
DuNDil we could hold that 1t was mten e to me o e a. sw m
't . the
,..__ Jv.
.L UIITIC1!8
tu,
nature of an action of eJ·ectment; that is, that the Justices
oF THE PEA.CB should be liable to suit only for three months in cases in
FOR THE CITY • I . li bl f l
OP Bo11BAY, which everyone e se 1s a e or twe ve years.
W e d o not
think tha.t simple seizure and the lapse of three months was
intended by the local Legislature to be a mode in which the
Bombay Municipality may acquire lands ; such a. provision
would be monstrous. We are also of opinion that Section
243, which provides for the apportionment of compensation
by the Court of Petty Sessions, is not applicable to a. case
of the acquisition of lands for public purposes.
We refrain from expressing any opinion aa to whether

the claim to recover the mesne profits of the land ca.n be sus-
tained, or wh.ether such an action comes within the pro-
visions of Section 240, and is, consequently, barred in the
present case. We think the question had better be left lo
be determined at the new trial, if the facts, as then estab-
lished, render its determination necessary.
We are glad to perceive that the view taken of Section 87

of Bengal Act III. of 1864 by .the High Court of Calcutta in
the case of Price v. Khilat Chandra Ghose (J) supports
our construction of Section 240 of Bombay Act II. of 1865.
Phear, J., also, in the case of Poorno Ohunder Roy v. Bal-
four (k) seemed to lean to the same opinion a.s that express-
ed by Loch and Hobhouse, JJ., in the case in 5 Beng. L. R.
The cases cited by the learned Advocate General as to the

scope of the words " intended to be done" in Section 240 of
Bombay Act II. of 1865 a.re not material, unless it can be
shown that Section 240 embraces actions to recover posses-
sion of lands, and this, as we have already stattid, it does not.
We are, therefore, of opinion that the decree appealed

against must be reversed, and the case be remanded for a
(,) 6 Beng. L. R. Ap11x, 50. (k) 9 Cale. W. R, 535 Civ. Rul,
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BOKBAY IlIOH COURT REPORTS. 257
re-trial on the merits. If the plaintiff succeed ultimately in 1875.
recovering the land, he must have his costs of this appeal So&A'BJI
from the defendants. If he do not so succeed, the costs of NA~:~z:Jx
this appeal must be costs in the ea.use. THK j~S'J'ICBS
OF TH.BPI.AC&
Order accordingly. FOR THE C1TY
OH BollUIAY,
[ORIGINAL CmL JURISDICTION.]
Suit No. 760 of 1873.
.Appeal No. 278.
MAHA'SIN •••••• , , ••• , •••••• , •• Plaint-i.ff.

!BRA'HIM BIN September 10.
ABDUR RAHIMA'N BIN .AL1r. ................. Defendant.
HENRY GAMBLE, Official Assignee ..•••• ... Appellant.
ABDUR RAHIMA'N BIN ALLI .................. Respondent.
Civil Proc«lure Code, Se,ctiom 106 and 119-.A.batement-.Notice-

Dinniual of wit-Limitation.
Section 106 of the Civil Procedure Code means that a Bllit abates by the
insolvency of the plaintiff, but \hat the defendant shall not plead the abate-
ment without giving the Official ABBignee an opportunity of prosecuting the
aui.t. Where, therefore, the plaintiff after the iillltitutionof a suit became insolv·
ent, and the defendant thereupon obtained au order that the Official Assignee
ehould give security for the costs of the defendant within fourteen days, and
should be made a party to the suit within one mouth, and that, in default
of such security, the suit should be set down for dismissal within eight days
after the expiration of the time so limited,
Held that BllCh order was irregular.

Held, also, that the Official ABSignee, having notice of the order, was not
entitled to further notice of the setting down of the suit for dismiBl&l, he
not having given the security required, and that the giving of BllCh security
waa a oondition precedent to his being made a party to the suit..
Where the suit was diamiaaed in acoordance with the terms of the order
mentioned above, and the Official Aeaignee did not apply, within thirty
daya of the passing of the order of diamiaaal, either to the Court making
the order or to the Appellate Court, for its .reTeraal,
Digitized by Google
258 DOXBAY man COURT RIPORTS.
1875. Reul that an application to tbo Appellat.e Court for the rcvenial of an
IBRA' un, BIN order discharging a rule niai for the reversal of the order of dismiaaal, and
MARA'SIN for the restoration or the suit to the board for hearing, was barred.
1',
xA'N RAHi-AFTER
ABDUR
BIN t h e institution
' · · of , t h e suit ' t h e plamtiu
' ·a became
.ALLI. insolvent, and his estate and effects vested in tho
Official Assignee. The defendant thereupon, on the 23rd
June 1874, took out a summons in chambers, calling upon
the Official Assignee and the insolvent to " show cause why
the Official Assignee should not proceed with the suit, and
give security for the defendant's costs, and, in default, why tho
suit should not be set down for dismissal." On the 27th Jone
187 4 the order was made absolute in the following terms:-
" Upon reading the Judge's summons, issued herein on the
23rd June 1874, and upon hearing Messrs. Crawford and
Boevey, Attorneys for the defendant, in support of the said
summons, and upon hearing Messrs. Hearn and Cleveland on
behalf of the Official Assignee, and Assignee of the estate
and effects of the plaintiff, an insolvent, I do order that the
Official Assignee do, within fourteen days from the date of this
order, give security for the defendant's costs in the sum of
Rs.1,000, and that he be ma.de a party to this suit within one
month from this date, and that, in default of such security for
cost.a being given within the said period of fourteen days, this
suit be set down for dismissal within eight days after the
expiration of the time so limited, and that, in default of the
Official Assignee being ma.de a party to this suit within the said
period of one month, this suit be at any time thereafter set
down for dismissal." The Official Assignee did not give the
security required, and the suit appeared on the board for hear-
ing on 16th July 1874, when the defendant's counsel, before
the suit was called on, moved for and obtained an order for
the dismissal of the suit in the following terms :- " This
Court doth order that this suit be, and it is hereby, dismissed,
and this Courl doth further order, that the plaintiff do pay
to the defendant his costs of this suit when taxed." On 14th
August 187 4 the plaintiff's counsel obtained a rule nuii
calling on the defendant to show cause w~y the order of 16th
Joly 1874 should not be set aside, and tho cause restored to
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I
BOJIBAY morr COURT REPORTS. 259
tl,e honl'(l for hearing. This rule was dischargo<l, after argu- __1!
_~
ment on 31st August 1874. The Official Assignee then lsRA'mM BIN
' MAHA'SIN
obtained a rule ,i,i,si,on 22nd September 1874 calling upon. v.
f J ·1 87 ABDUR RAHi•
the defendant to show cause why the order o 16th u y l 4 lllA'N BIN
shouJd not be set aside, and the cause be restored to the ALLI.
board for hearing, and on 19th November 187-1. this rule was
also discharged. The present appeal was then preferred by
the Official Assignee on 9th December 1874 against the order
discha.rging the rule l&st mentioned.
The appeal was heard by WEBTROPP, C.J., and GREEN, J.
Scoble {Advocate General) and Purcell for tho appellant.-

The Ii bcrty given by the order of 27th Juno was to set down
the cause for dismissal. This was clearly wrong, for that order
was, on the face of it, fro.mod in accordance with the provisions
of Section 106of theCivilProceduroCode, whichcontemplatos,
not tho dismissal of a suit, but its abatement, so that it can
be subsequently revived at any time not barred by the Limit-
ation Act. If the Official Assignee had boon a. party to the
suit prior to its dismissal, it might havo boon dismissed under
Section .119, but in that case he would havu been entitled to
notice; M it was, he had none, and on 16th July the suit was
dismissed. That order can only be held to have been made
against tho insolvent, for the Official Assignee not having
then joined the suit, the order dismissing it cannot bo said to
have been made ago.inst him, nor, for the same reason, could
he well appeal against it. The order of 27tli June obliges
the Official Assignee to be made a. party, and allows a month
for that purpose. The Civil Procedure Code contains no
provision for the dismissal of a snit. in which tho Official As-
signee ought to be the plaintiff but only for its abatement.
[WESTltoPP, C.,J. :_:_We certainly cannot hold" abate" to

mean the Mme a.'I "dismissed". The meaning of Section 106
Reems to lll'I to he, that a suit abates by the insolvency 0£ the
plaintiff, but that the defendant shall not plead the abatement
without giving the Official Assignee au opportunity of prose-
cuting the suit.]
B 622-k
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260 BOMBAY lJIOH COURT RJ!PORT8.
1875. Jfayhew and Inverarity for respondcnt.-Wc forego the

IBRA'mM nIN costs awarded to us by the order of 16th July dismissing the
MAi~~'srn suit. Marriott, J., discharged the rule for setting aside the
Annu,n RAm- ordct of 16th July. That order wa.s based on the order of
M~~N 27th June, which is still in force, and against which no appli-
cation has yet been made. Of that order the Official Assignee
bad notice, for it was served on his attorneys. According to
the terms of that order the Official Assignee should have
given security within a fortnight. He did not do so, a.nd it
was on that ground that the suit was dismissed, a.nd he did
not apply within thirty days to have that order set a.side. He
had no right to be ma.de a party till he had given security.
We do not say that the order of 27th June is unimpeachable;
but an order may be irregular, or even wrong, but it is not
on that account a nullity. It must be regularly appealed
against within the prescribed period, and in this case the time
for making such an application as the present has expired.
Scoble in reply.-We admit having had not.ice of the or-
der of 27th June, and that we cannot now ask the Court to
interfere with it; but the order of 16th July is not justified
by that order. We never acquiesced in having the. snit set
down for dismissal without the usual notice to which we wero
entitled according to the practice of the office.
[WESTROPP, C.J. :-Were you entitled to notice, not having
given the required security within the prescribed time?)
Had we ha.cl, notice we should have had an opportunity of
pointing out the irregularity in the order of 27th June. That
order does not expressly provide for giving us no further
notice, and the u~ua.l practice is to give four days' notice when
a suit is to be set down for dismissal. Instead, however, of
giving us any such notice, the defendant comes in on 16th
July, and asks for, and gets more than he is entitled to under
the order of 27th June, viz., costs of the suit. Section 119
cannot apply, unless the Official Assignee has been made a
party. In this case he has not, and, therefore, he is not
affected by the order of 16th July, and, consequently, tho
thirty days' rulo does not apply to him.
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DOKBAY HIOIT counT REPORTS. 261
WESTROPP, C.J. :-We think that the order of 27th June 1875.
1874, providing for the dismissal of the suit, was irregular, IBRA'1m1 BIN
and that, had the Official Assignee objected to it, he could have MAU:.'sm
successfully resisted it. But he was not taken by surprise,. Aimu,R R.un-_
MAN BIN
for it is what the summons asked for and what was granted. ALLI.
Further, we think that fourteen days being named at tho time

of making the order as the period within which tho Official
Assignee should give security, and being accepted by Mr.
Cleveland, after consultation with the Official Assignee, the
Judge was justified in thinking that he assented on behalf of
the Official Assignee, seeing that he was present and made no
objection personally. As to setting down the cause for dis-
missal on 16th July without further notico, cui bono should
notice be given, the Official As<Jignee having given no secur-
ity ? Wo do not think such notice was necessary; because
the Ofl;icial Assignee had not availed. himself of the liberty
reserved to him, by .the order of 2.7th June, to come in within
fourteen days. That order, no doubt, is clumsily drawn in
stating that the Official Assignee shall bo made a party, as
though that were obligatory ; but the latter ,part of the ordOl"
shows, we think,. that this was only conditional on security
being given. Now, irregular as the order of 27th June was,
the defendant doubtless wont beyond it by taking on 16th
July, not only the dismissal of the suit, but the costs. Those
costs the defendant's counsel now consent to forego; but, even
did they not, we very much doubt whether the fact of costs
having been awarded to the defendant, would have been a
sufficient ground for reversing the order of Marriott, J. The
Official Assignee made no application whatever to set aside
the order of 27th June; he did not apply, within thirty days
of the making of the order of 16th June to tho Judge who
mado it, to have it set aside, nor did he appeal to us within
thirty days for its reversal ; so that, in whatever light this
application is viewed, it must _bo held to bo time-barred. The
appool must bo dismissed; but, having regard to all the cir-
cumstances of the ea.so, without costs.
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262 l!OllBAY HIGH COURT REPORTS.
(ORIGINAL CIVIL JdRJSDICTION.]
Oririnal Swit No. 698 of 1872.
.Appeal No. 254-.
1875. HoRMASJI TEMULJI ••••••••••••••••••••••••••• Appellcint.

Jnne 18.
- - - MA'NKUVABBA'I ••••••••••••••••••••••••••• •••••• Respondent•
.Attorney and c~-Ve1v.lor a.1ld purchascr-Conatrnctive notico-&cncg-

Practice-C08l1.
The Oo\lrl Wl11 not presume notice to have been given to lus client by an
attorney where such notice would involve a confossion by the attorney of •
fraud practised by himself.
The Court wm not apply the doetri-ne of constrnctive notice where the-
party seeking the benefit of that doctrine baa been guilty of socrccy in $he
•mnsactioo with coustructi ve notice of which he seeks to affect a purchaaer.
Where the rosponu'6nt hod boen guilty of such secrecy, the Appellate Court.
gave tho appellant his costs in both Courts.
THIS was an appeal argued. before WES'l'ROPP, C.J.~ and
GREEN, J., from the decision of Bayloy, J., holding a
purchaser to be affected with constructive ncitico of an
existing mortgage. The facts of the case fully appear in the
judgment.
Stm·ling and .Agnew Turne, for the appellant.
Lathann and Lang for the respondent.
WESTROl'P, C.J :-This is one of the cases a.rising out of the
frauds of Postonji Dinsha, who was admitted to practise, as a
solicitor and attorney of this Court, on the 28th of August
1866. He had served his articles in .the office of Messrs.
Hearn, Cleveland, and Peilo, where he certainly had an oppor-
tunity of learning better pri~ciples than those by which he
seems afterwards to havo been guided. On the Gth of Jone
1868 he purchased from the liquidators of a certain insolvent
}>arsi tho general assets of the insolvent's estate, consisting
of immoveable propcrt.y aud <lebts. Somo members of the
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I
BOHIIAY HIOil COURT REPORTS. 263
insolvent's family now allege that Pestonji Dinsha purchased 1875.

the property of the insolvent at their instigation, and for the -HoRJr1AsJ1
---
' '
purpose of givmg to t hem a portion of the assets he might TKMUWI"·
succeed in recovering, after recouping himself for the ox- MA'::~nR-
penses to which he might be put. However that may havo
been, we find that, on the 4th September 1868, a mortgage
of the immoveable property was executed to Mankuvarbai
by Pestonji Dinsha, who wished to raise the sum of Rs.
25,000 dn that security. Mankuvarbai's usual solicitors were
, Cleveland,and Peile; but in this matter, much
Messrs. Hearn,
against her own wishes and at the special desire of Pestonji
Dinshs, who stated that it would be very damaging to his
credit and would injuriously affect him in his business if it
were known that he was borrowing money, she consented to
employ as her solicitor Pestonji Dinsha, the mortgagor himself.
At his desire, too, and for the same reasons, though greatly
against her own wishes, she abstained from advertising the
intended mortgage. The 4th September 1868 was the day
appointed for the execution of the mortgage deed and the
payment of tho money to Pestonji Dinsha. At the timo
of the purchase of the property by him, the deed of convey-
ance, dated the 6th Jane 1868, was made out, not in the
name of Pestonji DinsM himself, but of his father, Dinsha
Ma.nikji; in fact, Dinsha. Manikji was trustee for his son Pes-
tonji Dinsha, and for the purposes of this suit Pestonji must
ho regarded as tho owner of the equitable estate, for the
claim advanced by tho members of the family of the insol-
vent, from whoso liquidators he purchased, is of so shadowy
a nature that we cannot now take it into consideration. The
mortgage to Mankuvarbai ought, therefore, to have been
drawn up, making Dinsha Ma.nikji, the principal conveying
party, and Pestonji Dinsha, as owner of the equitable estate,
party of the 2nd part. This, however, was not done, and the
mortgage deed was made ou~in the name of Dinsha Manikji
alone: On the 4th September 1868 the mortgage money
was taken to Pestonji Dinsha's office before 5 P.M. by two
persons, of whom one wa.~ Ma.nkuvarbai's general man-
ager, and the other occasionally acted in the capacity of her
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264 BOMBAY HIOII COURT REPORTS.
1875. legal adviser, and both were previously aqua.intcd wjth

HonMA11J1 Postonji. It is in evidence that Dinsha M,nikji we.s in the
TEKUL.JI
v. hab.1t of s1ttmg
• . m • h•1s son1s offic e, and assJS
• ti•ng m
• the work·
M.1.':r.u· there during office hours. 0n this occasion, however, he wa.s
not forthcoming, and Pestonji said he had gone on board
a steamer that day starting for Kurra.chee. At Pestonji's
suggestion the parties bringing the money accompanied
him to .the Apollo Bunder for the purpose of obtaining the
execution of Dinsha Manikji to the mortg9,ge deed; but, on
arriving at the bunder, they found neither the steamer nor
Dinsha Manikji. Pestonji Dinsha then said that he held a.
power of attorney from his father, by virtue of which ho
could execute the mortgage deed. He accordingly took the
others back to his office, where he produced a pa.per which
he said was the power of attorney. He, however, did not read
it to them, nor even open it, but threw it down on the table,
where Mankuvn.rbai's a.gents n.llowod it to lie lmopened,
appe.rently satisfied with Pestonji Dinsha"s 888ertion that it
was the power of attorney, a.nd neith01" of them rood it or
asked to have it read to them. There is no evidence, beyond
that of MankuvarMi's two agents deposing to the fa.et of
Pestonji Dinsha's assertion at tho time, that the paper was
a power of attorney. Pestonji Dinsha might have been
called as a witness to speak to this, but we can understand
the unwillingness of either side to call him. However, the
fact remains that there is a total absence of any evidence of
the existence of any power of attorney. The mortgage deed
was then executed by Pestonji Dinah&, who signed it in
tho following form, "Pestonji Dinsha attorney for Dinsha
Manikji." The disappearance of Dinsha Manikji seems
to point to the suspicion that ho was purposely kept
ont of the way to admit of the property being dealt
with, as it was in fact afterwards dealt with, and to allow
an opportunity to raise money twice on the same pro-
perty, first by mortgage, and afterwards by sale. It is to be
noticed that there was very gross negligence on tho part of
Munkuvarbai's agents both in not inspecting the powor of
attorney, and also in taking Pcstonji Dinsha's word for it
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BOMBAY IlIGlJ COURT REPORTS, 265
that there were no title dcods, which in fnct there were. 1875.
Tho mortgage deed was not lodged for registration until. Hom«ASJI
December of the same year, and the delay was at the request
TDlOLJI
"·
of Peetonji Dinshii, on the ground that his father might return MA'NK~AR·
BAI.
from Kurmchee. However, the deed was ultimately lodged
for registra.tion on the 24th December 1868 ; but Pestonji
Dinsba was not required to acknowledge his execution, and
no summons was issued to compel him to do so until April
1870, and on the 5th May 1870 he did acknowledge the exe-
cution. Another curious circumstance is that, although Man-
kuva.rbai's agents knew that Dinsha Ma.nikji had returned
from Kurmchee before they had succeeded in obtaining
Pestonji Dinsha's ooknowle<lgment of the execution of the
mortgage deed, yet they had no communication with him
either about the deed or the power of attorney. This wa.s
negligence, which largely contributed to the fraud.
On the 11th January 1869 Dinsha Manikji, in whom
the legal estate was vested, executed a bargain pa.per to tho
appellant, Hormasji Temulji, agreeing to sell him a. house,
part of the property included in the mortgage deed of 1868.
Hormasji, before concluding this transaction, advertised the
int,ended purchase in the Timea of India of the let February
1869, and in a Guzerati paper of the 2nd February 1869.
Ho was guilty of no attempt at secrecy. Mankuvarbai's
manager saw neither of these advertisements, but that was
not Horm.asji's fa~lt.
On the 2nd March 1869 a. regular conveyance of the
house by Dinshn Manikji was executed to Hormasji, and
was registered on 31st March 1869; so there was no delay
on his part. The·fact of the registration of the conveyance
shows that Dinsh:i Manilrji might have been brought to
the Registrar's office to acknowledge the execution on his
behalf by Pestonji of the mortgage deed of 1868, had he been
pressed to do so. At the time of the execution of the con-
veyance by Dinsha Ma.nikji the title deeds of the house
were handed over by him to Hormasji a.t Pestonji's office,
a.nd in tho presence of Pestonji.
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200 BO:vBAY HIGH COURT REPORTS.
~~ On the 9th February 1871 Mankuvarbai first became

HoRXAgJI a.ware of Hormasji's claim through a letter written by his
TICIIULII
"· so11C1tor.
· . There 1s
. no doub t th at H ormas31 .. pa1'd h'1s pur-
M'.u~:?.~AB· chase money. So we have two parties here who have paid
their money, and we a.re now asked by the first purchaser
to apply to the second the doctrine of constructive notice,
for it is admitted that Hormasji had no actual notice. The
ordinary doctrine is, no doubt, that if a solicitor is mortgagor
himself, or is solicitor for a mortgagor, and so is aware of
the existence of a mortgage, and afterwards becomes soli-
citor for a purchaser, that purchaser is affected by tho know-
ledge of his solicitor. Of course, thero are certain excep-
tions recognized in equity, but that is the general role.
Wben the parties are equally innocent, the purchaser is
ta.ken to have the knowledge of his solicitor.
There is a case, Kenncc1y v. Green (a), in which Lord
Brougham refused to affirm that the solicitor must be taken
to have communicated his own fraud to the purchaser. Now,
we are strongly inclined to think that case would be appli-
cable on the present occasion, because hero was a double
fraud on the mortgagee : first, the statement that there
was n. power of attorney, and that there was a legal estate
being conveyed to her ; and, second, the assertion that thero
were no title deeds, which there were. Coupled with this
there was gross negligenC'.e on the mortgagee's part in
not looking at the alleged power of attorney, and accepting
without question the assertion as to the non-existence of
title deeds. But it is not on the authority of that case
that we decide; we decide on the ground of the secrecy
preserved by the mortgagee.
We think that the doctrine of constructive notice is only
to be resorted to where the parties a.re on a level in equity,
and that it is a doctrine not to be extended, and we decline
to presume notice in favour of a person who contributed to
make the transaction secret. Mankuvarbai employed her
solicitor for t.he very purpose of concealment. Further,
(a} 3 M. and .K. 699.
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BOKBAY HlOH COURT REPORTS, 267
though she knew of the practice of advertising, she did not 1875.
avail herself of it. Again, she delayed lodging her deed for HoRMASJ1
registration until the 5th May 1870. Now, if the purchaser
TltMULJI
v.
had gone to search the register before that date, he would MA'N~UV.ut·
11.f. I.
not have found any record of the mortgage, as the deed was
lying in Pestonji Dinsha's office, and was not registered
until after Hormasji was in possession of the property and '
had his conveyance registered. Under these circumstances
we think that we should be acting inequitably if we pre-
sumed notice to Hormasji of a transaction which Manku-
varbai had done everything in her power to keep secret. It
is against all probability that the solicitor would ever com-
municate to Hormasji the previous transaction.
It is impossible to say that these parties stand on an
equal footing. Hormasji has done everything above board,
and Mankuvarbai has done everything to maintain secrecy.
That secrecy in such a transaction will militate against a
party to it, is clear: Sharpe v. Foy (b), which in one re-
spect is a stronger case than this, for there the secrecy of
the defendants was in the very matter in which they sought
to affect the mortgagee with constructive notice; but the prin-
ciple is there admitted that, if the secrecy is contributed to
by the party who seeks to apply the doctrine of constructive
notice, the Court will refuse to apply it. It is quite ma.nifest
that ManknvarMi concurred with Pestonji Dinsha in·render-
ing the transaction secret as far as she could, and that Hor-
masji was induced to enter into the transaction in conse-
quence. Under these circumstanoos we must reverse the
decree of the Court below, and with costs, inasmuch as we
think that the conduct of Mankuvarbai has led Hormasji
into the trouble which has reduced him to pauperism, and
that it would be a very great hardship if he were not re-
oouped his expenses throughout this litigation.
Decree reve1·1ed with C<•st,.
(b) L. R. 4 Ch. Ap. 35.
B 622-J
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2138 DOVB.&.Y IIIGB COURT RIPORTB.
[ORIGINAL CIVIL JUKISDICTION.]

Sttit No. 478 of 1873.
1875.
August 14. Appeal No. 273.
E. and another ... (Plaintiffs) Appellant,.
SABSTEDT
THE AGRA BANK, LIMITED ••• { Defendanta) Respondent11.
Rtgimental Debt&' Act 1863, 26 and 'Z1 Vic., O. 57, Stttw,u 3, 4. 5, 6, 7, 8,

10, 12, 22, and 35--Royal W'a,,.ant, CkN,e 17-0otitmiUee ,,I . A ~
-Noate-" Per,on "-&w. fidu,
The president or a committee of adjustment, appointed 'llllder the provi•

lions of 26 and Z1 Vic., C. 57 (Regimental Debts' Act., 1863), wrote to lhe
bank a letter enoloeing the order by which the oommittee had been appoint-
ed, stating that he had given oTer to the widow of a deceased olioer the
whole of the estate of her husband by diredion of the Military Secretary
to Government, and requesting the bank to conform to her instruct.ions
concerning the amount of deposit receipt.e then in charge of the llank in lhe
name of the deoeased officer. The widow had taken out no lette111 of admi·
nistration to the estate of her husband, nor had she a preferential claim or
any preferential charge against It, but she paid all the preferential charges.
On receipt of the letter from the president of"tbe committee of adjmtment.
the l»nk paid over all the moneys of the deceued officer in their handa to
his widow. In a 111it brought against the bank by the tirst plaintiff', (the
grand-daughter of the deceased officer,) who had taken out letters of admi-
nistration to his estate on 6th June 1873, and her husband, the second
plaintiff, to recover two-thuds of the moneya ao paid by the bank to the
widow with interest,
Held that on the payment, by the widow, of the preferential ohargea, the
whole of the property. remaining in the bands of the committee waa
" enrplus," within the meaning of Section 6 of the Regimental Debta' Act of
1863, nnd that, assuming the Agra Bank at Bombay to be "within the
oommand," within the meaning ot' Section 7, the moneys of the deeea.ecl
officer in the bands of the bank, as being part of such " surplus," should
have been dealt with by the committee in accordance with the provisions
of Section 10 of the Regimental Debts Act 1863 and Clause 17 of the Royal
Warrant, and should have been remitted to the Military Secretary to Govern·
moot•
. Held also that the Military Secretary to Govemment bad no authority to
pay or order the payment of such "aurpln11" to any penou except in aooord.
anoe with the provisions of Section 12 of the Regimental Debts Act of 186&.
Held also that. Section 8 of tho Regimental Debts' Act of 1863did not ren-
,lc-r it incumbent on the widow, for the purpose of ousting the jurisdiction of
the committee of adjustment, to pay the preferential charges before th3 com.
mittee had taken any steps under Section 7. The true construction of Section
Sis that,on payment of the pl'efereutial charges, the commi\tco of adjuatmen\
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DOJIBAY HIGH COURT REPORTS. 269
1but be regarded u/Ufldi o.flkio, uoept for the purpose of reporting, and 1875.
ehoald make Ol'er what.ever property they have, which comes under the _E ___S_A_BBTE--DT
den9minat.ion of" 111rplus," in accordance with the t.erms of Section 10. ANDANOTHE&
Held &190 that the letter of the president of the committee of adjustment THE A.ORA
was a sufficient notice to the bank. that the committee were/uncti ojftcio, BANK, Lo.
and that the period had arrived when the civil law stepped in to regulate
tJae cue.
~whet.Mr the bank could be held to be a " person•• within"tbe mean·
iag of Section 22 of the Regimental Debts Act of 1863; but, even if it could,
Held that the bank were not protected by that section, the payment by
them oCK hal'ing been made to a" representative" as defined in the Act.
Held also that the bank were not proteot.ed by Section 35 of the Regi-
mental Debts Act, the payment not having been made" in puranaoco"
of the Act, and the carelessness of the bank in paying the money having
been 11ueh as to amount to potitive negligence, and debar them from pleading
that the7 acted under the bond fou belief that the payment was made in
pursuance of the Act.
P ~ l', 0Aa.pvv.1t (J El. and BI. 210) distinguished.
JOHN Osborne, an Honorary Ensign in the Bombay Army,
and Deputy Assistant Commissary of Ordnance, died intes-
tate at Neemuch on 21st December 1868, leaving him surviv-
ing his widow a.nd a grand-daughter, the first plaintiff, then an
infant a.nd unmarried. At the time of his decease there
were standing in his name in the Agra Bank various sums
of money, aggregating about Rs. 4,000, there deposited by
him from time to time on deposit account at five per cent
per a.nnum. On the day of his death, 21st December 1868,
a committee of adjustment was appointed under the
provisions of the Regimental Debts' Act 1863, 26 and 27
Vic., C. 57, and proceeded to ta.ke steps for securing tho
effects of Mr. Osborne. On 12th January 1869 the pre-
sident of the committee wrote the following letter to the
Manager of the Agra. Bank :-" I ha.ve the honour to inform
you that I have, by direction of the Secretary toGovernment
in the Military Department, given over the whole of the estate
of the late Ensign John Osborne to his widow, Mrs. Maria
Osborne, whose signature is attached, and request you will
conform to any instructions she ma.y give you concerning
the a.mount of deposit receipts, &c., you have in cha.rgo in
the name of John Osborne." Enclosed in this letter was
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270 BOKBAY HIGH COURT REPOK1B.
1875. the order appointing the committee. Mrs. Osborne took out
E. SARSTEDT no letters of administration to the estate of her husband, but
AND A:~THER paid all the preferential charges. On receipt of the letter of
Tm: AoaA the president of the committee, the Agra. Bank pa.id over to
. h . h d
BA.'IK, LD.
Mrs. Osborne all the money m t 011' an s standi ng m. ..1..
i.,ue
na.me of the deceased John Osborne on deposit a.ccount.
This suit was brought by John Osborne's grand-daughter,
Elizabeth Sarstedt, (who ha.d ta.ken out letters of administra-
tion to the estate of her grand-father on 6th June 1873,)
and her husband, to recover from the bank two-thirds of the
money so paid over by the bank to Mrs. Osborne, together
with interest at 5 per cent per annum. The suit came on for
hearing originally before Sir C. Sargent, J., who passed
a decree in favour of the defendants with costs on the 28th
September 1874.. Age.inst this decree the plaintiffs appealed,
and the appeal was argued before WEST.ROPP, C.J., and
BAYLEY, J.
Scoble, Advocate General (with whom was P0ot), for the
appellants.-Under the provisions of Section 8 of the Regi-
mental Debts' Act (a) the widow having paid the preferential
charges, the committee of adjustment were not. entitled fur-
ther to interfere in relation to the property of the deceased,
and, therefore, the letter of 12th January 1869 was not a valid
authority to the bank to pay over any money of the deceased
in their hands to the widow.
(a) Provided t~at ir the representa~ln of the det'ea&ed, or bi1 wido,., (if
any), or any of h11 next of kin, paye in full the preferential chargee the
committee ofadj11.1tment shall not further interfere in relation to the' pro-
perty.
If such payment i1 not made, then, within one month aner the death
the commit~ of adjustment may and ahall, without any repreeentatio~
taken out, and IU! if they were the repreeentativea of the deceased and to
the exclusion of all other authorities and peraona whom11oever sell or 'oonvert
into money such parts of the effecta of the deceued u d~ notooneiat of
money,-and also, where the death oocunout of the Unit.ed Kingdom get in
aud give reoeiptl ( which shall be effectual discharges) for all or any of the
credits formll!g pa_rt of. the estate of the deC6811ed, and being payable or
recoverable Jn India or 1n the colony, or POll8688ion, in whioh the deoeaeed
was quartered (118 the cue may be), and, if they think lit, sue for and reco-
ver any of such credit.I-and, after paying thereont the ezpeneee attending
the discharge of their duties, shall pay thereout the preferential chargee
and secure the 1urpl11s of the effect, or effects and czedita, as the cue ma,
be, rcmaiuiog over after all auch payment.,
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BOXBAY HIGH COUBT RffORTS, 2il
l11;verarily (Farran with him) for the resporidents.-There 1875.

is no evidence that the widow did pay the preferential E. SanlWI'
l . a - a and , if s h e did , 1t
c...._es.,.,, • was not sueh payment as 18
• con- A.'fl) ANOTIUUl
•.
templated by Section 8 of the Act, for the proviso at the ~:et:_
commencement of that section refers back to Section 7, so '
that to oust the jurisdiction of the committee the payment
by the widow of the preferential charges should have been
made immediately on the death of her husband. The com-
mittee had power on 12th January 1869 to claim payment
themselves of the money of the deceased deposited with the
bank. The payment by the bank to Mrs. Osborne was not a
payment to her qua the widow of the deceased but qua the
agent of the committee. Possibly the committee may be
responsible, but not the ba.nk. Even if the committee were
acting ultravires in ordering the payment to the widow, the
bank, on receiving the letter of 12th January, signed by the
president in his character of president of the committee, and
enclosing the order appointing the committee, were entitled
to presume that the committee were acting within their powers,
and were justified in paying the money of the:deceasedin their
hands to the widow or a.ny one else empowered by the com-
mittee to receive it, without seeing to the application of it:
Pimiberto1i v. Chapman (b). If the bank had been put upon
enquiry by receipt of the letter of 12th January, they would
only have referred to Sections 6 and 22 of the Regimental
Debts' Act, and there is nothing in the letter to lead the
bank to suppose that any of the conditions in either of those
two sections had not been complied with. Avt XIV. of 1873,
Sections 5 and 6, in substance reproduce Section 8 of the
Regimental Debts' Act. The policy of both these enactment&
is the speedy collection of the estate, and this policy would
manifestly be defeated if a debtor were to be allowed to ques-
tion the authority of the committee to receive payment them-
aelves or to order it to their nominee. Section 35 of the Act
protects the bank as well as the committee.
Scobk (Advocate General)in reply.-The report of the com-
mittee of adjustment shows that the widow did pay the pre-
(b) 7 El, and BI, 210,
·-
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272 BOKBA.T HIGH COURT HPOJfflJ.
1876. ferential charges, and there is no evidence to the oontrary.

E. ::lill!Twr From the terms of the letter of 12th January 1869 it is clear
.U.D A!IWHU •
"· that the payment was made to Mrs. Osborne qua the widow
~!! f!.0 of the deceased and not qua the agent of the committee. In
fact, the letter amounts to a notice that the committee
is functi officio, and is rather a request than an order ; the
bank, therefore, could not avail themselves of any protection
of which the committ.ee might have availed themselves
before they had concluded their duties, but ought to have
insisted on the widow taking out letters of administration to
the estate of her husband before they made over to her any
of his property in their bands.
Wr.sTBOPP, C.J. :-This suit is brought by Elizabeth
Sarstedt and her husband to recover from the Agra Bank
certain moneys which were deposited there by John
Osborne in his life-time. John Osborne was an honorary
ensign in the Indian Army, and held the appointment of
Deputy Assistant Commissary of Ordnance at Neemuch,
and in our observations regarding him the fact must be
borne in mind that ho belonged to Her Majesty's Indian
Army as distinguished from Her Majesty's Army at large
·-a distinction which is taken in the Regimental Debts
Act 1863. Elizabeth Sarstedt is the administratrix of
John Osborne, who appears to have died intestate. She
was bis grand-daughter, and at the time of his death she
would appear to have been a girl, and unmarried, in the school
at Bycnlla. John Osborne had a wife, who would appear to
have been his second or third wife, but not the mother of
Mrs. Sarstedt's mother. John Osborne's death occurred on the
21st of December 1868. No doubt, if the widow had applied
for letters of administration to this Court, she could have
obtained them, but she seems never to have made any such
application. Therefore she was not armed with such authority
as the ordinary civil law would confer on her to give an
acquittance to the Agra Bank for this money. The bank,
however, as a matter of fact, did make over the whole of the
money to her on some date subsequent to the 12th January
1869, and tliey seek to defend themselves against this claim
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IIOKBA.Y HIOH COURT UPORTS. 273
by saying that they paid the money to her by order. of the 1876.
committee of adjnstment, which assembled on the death of E. 8.ut:rrsDT
• U1> ANOTHD
John Osborne under the Regimental Debts' Act 1863. The "·
question is, whether the committee of adjustment had any i.!1:LAi:'
authority to give such a direction as they did. It was not
contended that the widow held what is called a preferential
claim, or had preferential charges upon the estate of John
Osborne, either to the extent of the money paid her by the
bank, or to any other extent, or that he was in any way .indebt•
ed to her. The report furnished by the committee to Govern-
ment, which has beep. put in evidence here by the plaintiffs,
states that the preferential charges had been all paid by the
widow. I do not know that it is a very material circumstance
in this case whether they had been so paid by her or whether
they had not, becanse, even if they had been paid by her, we
fail to perceive the authority in the Act for making over this
property to her. My impression is, that, in the absence of
evidence to the contrary, we ought to take it that the com-
mittee had performed their duty as they stated they had
done, and that the preferential charges were paid. What
these preferential charges are, is stated in the 4th section of
the Regimental Debts' Act 1863. They are payable in pre-
ference to all other debts and liabilities, and are [1] expenses
of last illness and funeral; [2] military debt.a, namely, sums
due in respect of quarters, mess, band, and other regimental
accounts, military clothing, appointments and equipments,
not exceeding a sum equal to six months' pay of the deceased,
and having become due within eighteen months before his
death, including sums due to any agent or to any paymasterI
quartermaster, or other officer, on any such account, or on
account of any advance made for any such purpose; to which
shall be added, where the death occurs out of the United
Kingdom, [3] servants' wages, not exceeding two months'
wages toeaoh servant; [4] household expenses incurred with-
in a month before the death, or after the last issue of pay to the
deceased, whichever is the shorter period. "The surplus only/'
the 5th section states, " of the personal property of an officer
or soldier dying on service, remaining over after payme:Qt of
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274 IIOVBAY HIGH COURT REPORTS.
1875. preferential charges, shall be considered personal estate of

E. 8.utllTEDT the deceased, with reference to the calculation of probate duty,
...xD A!IOTBD
"· or of any other tax or percentage, or for any of the purposes
~!! i.!. 0 of administration or distribution," so that that: section is
important in this way, showing that the surplas means
whatever personal property is left remaining over after pay-
ment of preferential charges. If, therefore, we take it that
the whole of the preferential charges were paid by the widow
as we are bound to take it [in accordance with the evidence
contained in the report of the committee], the whole of the
property remaining in the hands of the committee was
surplus. Now, the next section to which it is important to
refer, is Section 7 : it says that, "immediately on the death of
an officer or soldier on service, such committes of officers as
may be prescribed by Royal Warrant, according to the
circumstances of different cases, hereinafter called the
Committee of Adjustment, shall secure all such of his effects
as, where the death occurs in the United Kingdom, are in
camp or quarters : and where the death occurs out of the
United Kingdom, are within the station, colony, or com-
mand." Now, we are willing to assume for the defendants, for
the purposes of this case, that this money lying in the Agra
Bank in the city of Bombay was within the command, and was
such property as the committee of adjustment might have
secured under this section. The committee, it appears, on
the 23rd December 1868 wrote to the Military Secretary to
Government, Colonel Macdonald, to ascertain whether, on the
widow paying the preferential charges, the property of the
deceased, John Osborne, might be made over to her, and were
informed in reply by the Military Secretary to Government
that that could be done. Now, we fail to find any authority in
the Act for doing what the Military Secretary to Government
informed the committee of adjustment might be done. We
think that the contention that the property in the hands
of the committee of adjustment, inasmuch as they had not
p11.id the preferential charges, could not be regarded as sur-
plus, is not sustainable. We think that the whole of the
property in their hands, after the preferential charges were
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BODAY mou COURT REPORTS. 275
paid by them or the widow or the next of kin, would be snr- 1875.
plus, and being surplus must be disposed of as the Act E. SARSTEIYI'
directs. The 10th section states how the surplus is to be AND ~OTan
disposed oi It is this :-" The Committee of Adjustment Tax Ao RA
• • • BANK, Lu.
shall, accordmg to the c1rcumstances of the case, reIDlt or
lodge the surplus aforesaid to or in the hands of such pay-
master or officer or person, at such time or times, in such
manner, and together with such accounts, vouchers, report.s,
and information as may be prescribed by Roya\ Warrant."
Then we turn lo the Roya.I Warrant. The clause of the
Royal Warrant applicable to such a case as the present, is
Clause 17, which is as follows:-" Where the death occurs
in India, the deceased not being a soldier of Her Majesty's
Army "-(which was the case here; he was in Her Majesty's
Indian Army ; the distinction is taken throughout the Act)-
" the Committee of Adjustment are to remit the surplus to
the Military Secretary to the Government of the Presidency
in which the deceased was qua_rtered." Then it may be said
that they being so directed by the Royal Warrant, if the
Military Secretary authorized the payment of this money to
the widow, that would be a. sufficient protection to the Agra
Bank for paying to her the money in their bands ; but the an-
swer to that is, that what the Military Secretary bas to do, is
expressly provided by the Act. It is in Section 12. We here '
find the same term " or other officer or person " as is used in
the 10th section. This is what the 12th section says:-
,, Where the death occurs in India, the deceased not being a
Soldier of Her Majesty's Army, the following provisions
shall take effect :-(1) The paymaster or other officer " (that
is,the Military Secretary)" or person aforesaid shall,as soon as
may be, after receiving the surplus aforesaid, publishsuch no-
tice (stating the amount of the surplus, and other :particulars
respecting the deooased and his property,) as may be pre-
scribed by Royal Warrant, together with a notice stating
that all claims by creditors against the property of the de-
ceased are to be lodged with such paymaster or other officer
or person, who shall retain the surplus for two months after
the first publication of such Gazette notice aforesaid, aud
B 622-m
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276 BODAY HIGB C01Jrl' REPOnl.
1875. shall receive and record all claims lodged with him accord-
E. SAJ1STEDT ingly. (2) IC claims are so lodged, not exceeding in the
•ND uoTBsa
11.
whole such absolute amount or such proportion of the nr-
TB11: AoBA . plus as may be prescribed by Royal Warrant, according to
B.uur;, LD. • th h
the circnmst&nces of different cases, en sue paymaster or
other officer or person shall, at the expi1'8tion of the said two
months, proceed to discharge the demands of the claimants
who have lodged claims with him, unless under the special
oircomstan~ of the case of the deceased it appears to him
inexpedient or unjust to do so ,, (but nothing of that kind
seems to have been done in this case by the Military Sec-
retary). "(8) In that case, or in case the claims lodged
exceed in the whole the absolute amount or the propor-
tion aforesaid, then such paymaster or other officer or person
shall, without discharging those claims, or any of them,
transfer the surplus aforesaid to the AdminiAtrator General
for the Presidency. (4) Where such paymaster or other
officer or person does not so transfer the surplus, he shall
dispose thereof, or of so much thereof as remains after the
discharge of any claims, as follows :-Where the amount
exceeds .£100, he shall pay it over to the representative
of the deceased in India, if any; where the amount does
not exceed tlOO, it ehall not be necessary for any pur-
pose that representation to the deceased be taken out in
India, but if representation is taken out there, such pay-
master or officer or other person shall pay the amount
over to the representative in India; whore the amount does
not exceed £100, and representation in India is not taken
out, such paymaster or other officer or person shall dispose
of the amount, or part thereof, in India, (in such.manner as
may be prescribed by Royal Warrant for such cases,) for the
benefit of the widow and of the children or other near rela-
tives (if any) of the deceased, or of some of such persons,
being in India." It is very clear that the Military Secre-
tary, or paymaster, or other officer, where the assets exceed
~l 00, has no authority to make any payment either to the
widow or next of kin unless they are creditors, and here the
assets did coD.Siderably exceed £100. They seem to have
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~ y HIGII OOUBT BIPO&TS, 277
amounW tn about Rs. 16,000. There was not that amount 1875.
in the bank, but the bank had upwards of Ba. 4,000 belonging E. SARST&DT
to the deceased.. We do not find that the Military Secretary AND ~ .oTHu
has in any respect followed the course prescribed for him. ~n Aou
ne uave no evi'dence tL-"
"llllT 'L....
- he published any notice,
. .
no evi- ANK, LD.
dence that he proceeded to discharge the demands of the

claimants, and we have no evidence that be made the moneys
over to the Administrator General : in fact he did not. That
would seem to have been his proper conree if he ha.d assets
1
m liis hands which he bad not applied in payment of debts.

The very pro~sion that, in cases where the assets were less ,
than ~I 00, payment might be made by the proper authority to
the widow or next of kin, is an exclusion of the right to make
such payment in any other case, unless they claim as repre-
sent.atives. I now go back to Section 8. The argument is
that, unless the preferential charges are pa.id immediately on
the death by the widow or next of kin, and before the· com-
mittee of adjustment have taken any steps under Section 7,
they will not be bound to retire from the representation,
bot that does not appear to us to be the true construction of
Section 8. We think that whenever the preferential charges
are pa.id, the intention of Section 8 is that the committee of
adjustment shall not further interfere in relation to the pro-
perty. Now, the word" further" has been relied upon as
referring expressly to Section 7, but the word " interfere " is
coupled with it, and " interfere" is a word of very wide
extent. It would include either a collection of assets or a
distribution of assets ; either wonld be an interference, and
we think that, as soon a.s the preferentia.l debts had been paid,
the committee of adjustment must, except for the pur-
pose of reporting, be regarded as fu1lCti officio, and that they
ought then to have made over whatever property they had,
which would oome under the denomination of surplus, to the
Military Secretary to Government. We have already stated
that the Military &cretary is the " other pe1'80D " pointed
out by the Adt. There is no authority for him, when the
assets exceed £100, to pay to the widow or next of kin ex-
cept upon letters of administration, probate, or certifi.::ate
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278 BOJIBAY RIOB COURT BIPOBTB.
1875. of administration-some authority, in fact, which is sufficient.

E. SARSTBDT However, it is ea.id that this Act is so very obscore and
A.ll'D .\NOTHJCR
v. amb1goous
• • that, masmuc
• h as the comm1'ttee ofad'JUS t ment
Tux AoRA appear to have been acting up to the 18th of March 1869, the
BANK:, Lo. • •
date on which they sent tn their report,
that faet would
entitle us to suppose that the committee were authorized to
direct the application of the money in the hands of the Agra
Bank for such purposes as they might think proper, and
that, if both parties acted bona fid,e (and there was no reason
to suppose the contrary), the bank would be justified in
paying the money over by order of the committee of ad-
justment. Now, we do not think that that is a sound argu-
ment. We think that the very fact, that such a letter as that
of the 12th January 1869 was written by the president of
the committee to the bank, was sufficient to warn the latt.er
that t~e period had arrived when the civil law stepped in to
regulate the case; notifying, as it did, that the committee
had denuded themselves of the property of the deceased
completely, and made it over to the widow. It is true that
they ea.id they did so under the authority of the Military
Secretary to Government, but he had no power under the cir-
cumstances to confer such authority, and they had nothing
left on which they could operate. The mere faot that their
report remained unmade, did not leave them an existing
body for the purpose of dealing with the a.sset:a. Section
22 has been relied upon for the protection of the bank in
connection with the order of the Military Secretary. Th is
section is as follows :-" Any property of an officer or
soldier dying on service coming, under this Act, to the
hands of any paymaster or other officer or person, shall
not, by reason of so coming, be deemed assets or effacts at
the place in which that paymaster or other officer or person
is stationed or resides, and it shall not be necessary by rea.
son thereof that representation should be taken out in respect
of that property for that place. When, under this Act, any
such property is to be paid or delivered over to the repre-
sentative of a deceased officer or soldier or other person en-
titled to receive the same-if such payment or delivery lll to·
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JIOKB.lt BIGB COURT REPORTS. 279
be made in India, then the Military Secretary to the Govern- 1875.

n1ent of the Presidency in which the deceased was quartered; E. SARSTzr>T
and if such payment is t,o be ma.de elsewhere than in India., then AND ~-OTJIU
the Secretary of State for War, or the Secretary of State for l'::x.~
0f;,
India in Council, as the case may be, may order that such
property be transmitt-ed to any other place where the same
can be m~re convenit!ntly paid or delivered over as aforesaid;
and the obedience to any such order by any paymaster or
other officer or person in whose hands such property is, shall
be a sufficient discharge to him, and he shall not be liable in
any manner by reason of such property having been in his
hands and having been transmitted under any such order."
The first thing that strikes one here is, that the payment
which this section contemplates is a payment to the represent-
ative of the deceased officer or soldier, and there has been no
payment on this case~therepreeentative. The representative,
we find in the Act, means any person taking out represent-
ation. It means the person armed with probate, letters of
administration, or certificate of administration, so that that
section cannot possibly protect the bank even if they came
within the words "a person. " But we very much doubt
whether the bank does come within these words. A special
meaning is given to them. It will be found in the 10th sec-
tion. It means paymaster, officer, or person deRignated in •
the Royal Warrant ; and the person designated in the Royal
Warrant in this case for receiving assets is the Military
Secretary to Government. But, even if the words did cover
the bank (it is unnecessary for us to determine that), the pay-
ment referred to is to a representative, and the bank, there-
fore, can claim no protection under it. Lastly, we come to Sec-
tion 35, which says : "Every payment, or application of money
and every sale or other disposition of property, made by the
Secretary of State for W a.r, or by the Secretary of State for
India in Council, or by any Committ~e of Adjustment, or by
any paymaster or other officer or person, in pursuance of
this Act, or of any Royal Warrant for carrying this Act into
effect, Hhall be good and valid as against all persons whom-
::1oever; and every such Secretary of State, and every officer

280 IOIDl.lT HIGH COURT DPOB'l'8.
1875. belonging to any such committee, and every such paymaster,

E. Sil8'1'SM' officer, or person as aforesaid, shall be, by virtue of this Act,
.u» ~-OTHU absolutely discharged from all liability in respect of the
~ A1!~ money or other property eo pa.id, applied, or disposed of. "
x, It is a payment or application of money in pursuance of
the Act which is spoken of. We a.re willing, as far as this suit
is concerned, to give this section-without saying tfiat is the
true construction to give it-the most liberal construction
it can bear, which would be that these words mean any pe.y-
ment, application, or act bona fol,e believed by the party
paying it to be in pursuance of the Act, albeit really it might
not be eo. But there can be no bona fal,es where there is care-
lessness-where there is such carelessness as amounts to '
positive negligence. Here, if the bank had looked into the
Act, they would have seen that neither the committee of ad-
justment nor the Military Secretary to Government had any
right to make over these assets, exceeding, as they did, tl 00
in value, to the widow or next of kin, unless they were armed
with probate or letters of administration, or a certificate of
administration, for the direction is positi~e as to what is to
be done with the assets. Whether the preferential charges
were pa.id or were not paid, there is no authority in the Act
for the pe.yment over b.,v eithel'. the committee of adjustment
• or the Military Secretary to Government, of the assets, or
any portion of them, to the widow or next of kin in such a
case as the present, unless they filled the character of
creditors, preferential creditors, or representatives. This
was not the case here ; and, although the widow might
have become the representative if she pleased, she did not
do eo, and was not in the position of the executrix in the
case of Pemberwn v. Chapman (c) which has been cited . .
The executrix there, even though she had not taken out
probate, had authority under the will. Here the widow was
quite differently situated, having no authority whatever.
For these reasons we think that the decree of the learned
Judge must bE? reversed; and as the plaintiff, have behaved
(c) 7 EL ud BI. 210.
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BOMBAY HIGH COUK'l' BIPOR'l'B, 281
very moderately in claiming only two-thirds of the deposit, 1875.

we think they are entitled to recover two-thirds of the sum E. SilSTSDT
paid·over to the widow, with simple interest at 5 per cent £ND ~arsu.
from the date of such payment till payment by the Bank to THll:AQRA
Bu.11:, LD.
the plaintiffs. We think, too, having regard to all the circum-
stances of the case, and especially to the fact that the bank
displayed such very great readiness to arrest the second
plaintiff, by issuing execution against him on the decree of the
Division Court, and bringing him down all the way from
Jamalpore to Bombay while an appeal was actually pending,
the plaintiffs must have all their costs in both Courts. The
decree will be for the plaintiffs for Rs. 3,444-15-8, with
interest a$ 5 per cent per annum on Rs. 3,242-4-10 from the
llt.h February ·1869 until judgment, with costs of the suit
and appeal, and interest on the judgment at 6 per cent per
annum until payment.
BnLBY, J. :-I entirely concur in the judgment and in all
the remarks of my lord.
[APPELLATE CIVIL JURISDI<Yl'ION.]

1874.
Special ..tl.ppeal No. 316 of 1872. .April 29.
Smvn HA'sui: and others ... (Defendants) Appellants.

DATU MA'vn KB.ou' ......... (Plaintiff)Respondent.
s-l>ay J r - , ' .Act XX. of 1864, Section 1-Bmgal Minor,' .Act XL. of
1858, St.etion 2-.Age of majority-CIIM-ge of minora' ~-Otulom
arn<mg Khojd,a-,/oim Hindu.family.
Under Act XX. of 1864, Section I, it ia the charge of a minor's property

and not the property it.elf which shall vest in the Civil Court-a.di1tinc-
tion which haa been overlooked ill Bai Kuar v, Bdi Ganga (~ Bom H.C. Rep.
A. C. J. 33).
The "meaning of the lat Section of Act XX. of 1864, when regarded in
~tion with the sequel thereof (which providee, for the information at
the Civil Court, no such means, regarding the deaths of persons leaving
infan, children, u would enable the Court to act e;i: mero mot11 in every
.ach cue), ie that the care of the pel'IIOns of all minors (not being European
Blitiah 1Ubjecta) and the charge of their property shall be, u expreulJ
Digitized by Google
282 BOllBAY mau COURT Rl'POR'1'9.
1874. provided in the Bengal Minors' Act XL of 1858," subject to the jnriadictiOll
of the Court," and there ia nothing in the 1ublequent sections of the Bom-
Sa1v.n
HA's.ur ba7 Minors' Act which would lead to the conclusion that, until the Court ia
AND OTHKBS moved to exercise its jariediction, the care of the minors the1111elvea or the
D "M· , eh~ of thea property ii nated in the Court, or that more wu intended
1 --d, th
ATtJ ... VJI
KBOJA', than that, like the Court of Chancery 1n • E nguw e Pr"1001'pal Ci'ril
Courts of districts should have the right, if moved ao to do, and if the7 ao
thinlc proper, to take care of the peraona of minors and charge of their pro-
pert7, and that, until the Court does eo, the minors cannot be regarded u
wards of the Coutt or their property u in its charge.
It is onl7 for the purpoaea of Act XX. of 1864 that eighteen is laid down
as the age of majority (8ection 30). The Legislature baa not, by that Aot, in-
tended to prescribe eighteen u the age of majority for all pel'IIOllll of all cutel
and oreeda and for all p ~ That limit ii not applioable to any penon,
until the Act be brought into play by the exerclae of the ~ivil Court'•
jurisdiction.
It must be considered as the settled rule in Bombay that, in the absence

of aufllcient evidence of usage to the contrary, the Hindu law ia applicable
in matters relating to property, inheritance, and au~on among Kboj&
lrfubammadans, and this rule was held to apply in a cue of Khoju at
Th•na. no evideuoe having been given iD that CUI to show its inapplica•
bility to the Kbojlla of that plaoe.
One member (although an infant) of an 1individed fami17, governed by the
Mit6bhar6 law, baa not ancb an iutereat in the joint property u ia capable
of being taken charge of and managed by she Civil Court or a guardian
appointed under Act XX. of 1864.
~-Whether, under Act XX. of 1864, the principal Civil Court of
Original Jurisdiction in the district can take charge of the property of a
penon who hu completed hie sixteenth year, but ii linder eighteen.
THIS was a special appeal from the decision of G. Ayerst,
Assistant Judge at Thana, affirming the decree of the
Subordinate Judge of the same place.
One Hasam, a Khoja inhabitant of Thana, died, leaving
him surviving 1).is widow, named Manbiii, and three sons,
named, respectively, Shivji, Kasam, and A 1i. The eldest of
these sons, Shivji, after the death of his father, mortgaged
to the plaintiff a house at Thana, formerly the property of
his ~ather, for the sum of Rs. 1,999. The mortgage deed.
which was dated 5th January 1867, was executed by Shivji
for himself. and as guardian of Kasam, in the presence of
Manbii. At the date of the mortgage Shivji was seven-
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BOVBAY HIGH ,COURT REPORTS. 283
teen years and eight months old, Ko.sam fourteen, and A' Ii, 1874.
who was not named as a party to the mortgage deed, was Snrvn
yoonger than Kasam. On 1st December 1869, Shivji, being AN~~!~M
. then over eighteen years of ago ; Kasa.m, being then over D ~M. ,
• ATU A VII
sixteen but under eighteen; and A'li, being then under six- Knou'.
teen, respectively executed a document, to which Manbai
was not a party, in ratification of the original mortgage.
On 30th November 1870 the District Court granted to
Manbai a certificate as guardian of A'li under Act XX. of
1864. In 1870 the plaintiff brought the present suit to
recover the principal sum of Rs. 1,999, together with the
interest due on his mortgage, and joined as defendants the
three brothers and their mother, both as the guardian of
A 1i and in her individual capacity. The defendants all
denied the validity of the mortgage sued upon ; but the
Subordinate J ~dge, holding it to be valid, made a decree
in favour of the plaintiff, and on appeal the Assistant Judge
affirmed that decree. He found that the mortgage had
been executed for valuable consideration and for the benefit
of the family, the money having been borrowed by Shivji
partly for the purposes of the trade originally carried on
by his father Hasam and continued by Shivji as head of
the family for its benefit, and partly to pay off a debt due
to one Hargovind for money expended in building the
house enjoyed by the family at large. He also found that,
after satisfaction of the mortgage, there would still remain
sufficient family property for the maintenance of Manbai.
He further found that the defendants had completely failed
to prove the usage, as alleged by them, of the Khojas, that
a male member of that community did not attain his major-
ity until the completion of his twenty-first year, and held
that a Khoja who had completed his sixteenth year was
adult.
The specie.I appeal, preferred by the defendants against
this decree, was ~eard by WxsTROPP, C.J., and WEST, J.
Naruibhai Haridas for the appellants.-The suit is based
on the mortgage deed (Exhibit No. 3) executed by Shivji
B 622-n
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284 BOJDAY mae courr Ra"OllftJ.
1814. for himself and as guardian of his minor brother Kaisam.

8JDTn But, as both these broihera are found t.o have been under
.J!"C::.. eighteen years of age at the time of the execotioo of thai
l>•n M£'Tn deed, they were minors, and Uie deed is umilid. Every
lt11ou.'. penou who has not attained the age of eighteen years is a
minor: Jfadhunda• Jfanji Y. Debigobitlda Newgi (a).
.Alihoogh that rnling waa under the Bengal Minors' Act XL.
of 1868, the pro'Yisions of that Act are similar to thoee of
the Bombay 1linors' Act XX. of 186', especially regarding
the age of majority. Besides, on the death of Haeam,
leaving three minor aons, Shivji, .Kasam, and A 'li, the pro~
perty in dispute, by Section 1 of Ad XX. of 1864, became
vested in the Civil Court, 1111d Section 18 prevent.ed even
their guardian, snpposing they bad one, from alienating the
property. While by the Bengal :Min018' Act, Section 2,
the property of a minor iB au'bjed to the jurisdiction of the
Civil Court-by the Bombay Minors' Act, Section 1, soch
property vuta in the Civil Coort. The distinction iB pointed
out in Bai KuM v. Bai Ganga (b). [WxsTBOPP, C.J. :-There
is a manifest error in that distinction. Section 1 of the
Bombay Minors' Act clearly says "that the charge of their
(minors) property shall vest in the Civil Court," not Ute
property, and, therefore, the analogy drawn in that case
between the terms in the Bombay Minors' Act and those in
the Insolvent Debtors' Act as to the vesting of property, is
wrong.] Before the passing of Act XX. of 1864 there was
no law under which the Civil Court could Mike care of the
ptoperty of minorB in the MofUBBil. It was then left to the
respective laws of the parties to determine who was to be
the guardian of a minor and to take care of his property·
But that law was changed by Act XX. of 1864". The Civil
Court is now made a sort of a guardian general of all minors.
Even a father is not permitted to sue on behalf of lus minor
son: Sitarambhat v. Sitaram GlVlteah (c). Similarly, a suit
against a minor was not permitted to be proceeded with, un-
lees the minor was represented by .one holding a cert.ificate
(a) 1 Beng. L. B. F. B. 49; S. C. 10 Cale. W. R. 36 F. B.
(b) 8 Bom. H. C. Rep. A. C. J. 33. (c) 6 Bow. H. C. Rep. A. C.J. 250.
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BOllliY BIGB COUBT Bll'O&TS, 285
of administration : Dlwndiha v. K1JJJa (d). Section 2 quali- 1874.

1ies Section 1. Where a person before death makes an ar- SK1vn
.-.ngement for the management of his property dnring the ~~
minority of hie children, by a will or otherwise, the Civil Court D.&TtJ M..-.'vu
is to give effect to that arrangement. As regards the As- Kaol•'·
sist.ant Judge's finding, that the parties to this suit, being
Khojae, are subject to the Hindu law of inheritance applic-
able to a joint and undivided family, I contend that that law
does not govern them. Even, supposing that that law regu-
lates the succession and inheritance of the Khojas in Bombay,
I contend that it. does not govern the Khojas at Tba~, of
which place the present parties are residents.
Macpherson (with him M. 0. ApU) for the respondent.-
The decisions in Hari Mahadaji v. Vasudev Moreshvar (e)
and Gangadhar v. Ohimnaji (j) are in direct conflict with the
Full Bench ruling in 1 Beng. L. Rep. F. B. 49, and lay down
that the Hindn law of minority is not altered by the laws of
limitation, and that the term "minor " must be construed
according to the general law. The reason assigned by Sir
Barnes Peacock, C.J ., in the Full Bench case for holding
eighteen as the age of majority is not satisfactory. Under
Act X. of 1865 (Indian Succession Act), twenty-one is the age
of majority for the purposes of that Act. The same is fixed
to be the age of majority by Act IX. of 1871 (Limitation Act)
and Act V. of 1865 (Indian Marriage Act) repealed (exeept
as to the Straits Settlements) by Aot XV. of 1872. While
this is so, Bengal Regulation XXVI. of 1793 fixes the age of
majority at eighteen. So there is a great anomaly, greater
than what Sir Barnes supposed in the Calcutt.a Full Bench case
there would be. The language of Act XX. of 1864, Section
30, shows clearly that eighteen is the age of majority only
for the purposes of ihat Act. The words are restrictive, and
· must be very strictly construed.
Under.Act IX. of 1872, Section 11, every person is com-
petent to contract on att.aining the age of majority accord- .
ing to hie own law. On the question whether the Hindil\
(d) 6 Bom. H. C. Rep. A. C. J . 219 (e) 2 Bom. H. C. Bep. 325.
(/) 5 Dom. H. C, Bop . A'. C, J, 95.
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286 BOIIBAY HIGH COURT BIPOKTS.
1874. law of inheritance and succession is applicable to Khoja

su~n Muhammadans, I submit, on the authority of Gangbai v•
..!A~ 'fhavar MulM {g), Karim Khatav v. Pardhan Manji (h), and
DATU 111,IA'VJI Hirbai v. Sonabai (i), that it does apply to them.
Kao.1A'. Nanabhai Haruuis in reply.-In the two Bombay cases the

question of majority under Act XX. of 1864 was not before
the Court. The question was considered under Regulation
V. of 1827. There is, therefore, no decision on the point
whether Act XX. of 1864 does or does not affect the age of
majority or minority. As regards the anomaly, the Indian
Succession Act (X. of 1865) and the Marriage Act as well
a.s the Contract Act are intended for the whole of India;
while Act XX. of 1864, as the title clearly shows, is confined
to the Bombay Presidency only. If the term" minor" in
the Succession and other Acts had not been defined, it would
have meant one thing in Bombay, another at Calcutta, and a
third in Madras, and so on.
The following cases also were referred to in the course of
argument :-JadunathMitterv. Bolyec]UJ,ndDutt (j), Archer
v. Watkins (k), Gally Chum Mullick v. Bhuggobutty Churn
Mullick ( l ), Hearsey v. Girdharee Lal (m), Baboo Lekraj
Roy v. Baboo Mahtab Chand (n).
The judgment of the Court was delivered by.:....
WESTROPP, C.J. :-This was a suit to recover Rs.1,999 as
principal, together with such interest as was due upon a
mortgage (dated 5th January 1867) of a house at Than!, the
property formerly of Hasam, a Khoja.
The mortgage (Exhibit No. 8) was executed by Shivji, the
eldest son of Hasam, after the death of the latter, for himself
(Shivji), and aS guardian for his brother K:isam, described in
the mortgage as then aged fourteen years. Shivji was seven-
teen years and eight months old at the date of the mortgage,
A'li is younger than Kasam, and was not named as a. party
to Exhibit No. 3. Those three sons Hasam left surviving
(g) 1 Bom. H. C. Rep. 71. (h) 2 Bom. H. C. Rep. 276.
(i) l'erry'a Or. Ca. 110. (;) 7 Beng. L. R. 607.
(1) 8 lclem 372. ( l) JO Idem 231.
(m) 3 N. W. P. High <.:ourt Rep. 338. (11) 14 Moo. Ind. App. 393.
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:BOMBAY HIGH COURT REPORTS, 287
him, and a widow named ManMi, in whose presence the 1874,

mortgage (No. 3) was executed by Shivji in the manner SHm1
already mentioned. On the 1st of December 1869 Shivji, AN~~!as
being then over eighteen years of age ; Kasam over sixteen, D "M· ,
ATU AV.JI
but under eighteen; and A 'Ii being under sixteen, respect- KHo.1A'.
ively executed a document (No. 27) in ratification of the
original mortgage (No. 3 ). Manbai did not execute it.
Upon the 30th of November 1870 the District Court granted
to Manbai a certificate as guardian of A1i under Act XX.
of 1864.
The mortgagee, De.tu Mavji Khoja, in 1870 brought the
present suit to enforce the original mortgage. Shivji,
Kasam, A'li, and their mother Manb6.i, as guardian of A1i
and in her individual capacity, were defendants to that suit,
and respectively denied the validity of the mortgage sued
upon.
The Subordinate Judge held it to be valid, and made a
decree in favour of the plaintiff. On appeal the Assistant
Judge, Mr. Ayerst, affirmed that decree. He found (inter
alia) that the mortgage (No. 3) was executed for valuable
consideration and for the benefit of the family, the money
having been borrowed by Shivji, partly for the trade origi-
nally carried on by his father Hasam, and continued by
Shivji as head of the family for its benefit, and partly to
pay off a debt due to one Hargovind for money expended
in building the house (value Rs. 4,000) enjoyed by the
family at large. He also found that, after satisfaction of the
mortgage, there would still remain sufficient family property
for the maintenance of Ma.nbai. The Assistant Judge fur-
ther found that the defendants had completely failed to prove
that by the usage of the Khojas (as alleged by the defend-
ants) a ma.le of their community did not attain his majority
until completion of his twenty-first year. The Assistant
Judge held that a Khoja who had completed his sixteenth
year was adult.
Before my brother West and myself it was on special appeal
argued that on the death of Hasam, under Act XX. of 1864,
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BOMBAY HIGH COUBT BBPOBTS.
· 1874. the charge of the property in dispute vested in the District

Bmvn Court (Section 1), and that his three sons being, at the date of
HA'IWI
ilD OO'JlJm8
the ori....: ....1 mortgage, under eighooen years of age (Section
6.....,.
"· 30), even their gnardia.n, if they then had one under the Act,
DAh~:~n could not alienate, sell, mortgage, or otherwise incumber the
honee, or grant a lease thereof for any period exceeding five
years, without the sanction of the District Court previously
obtained (Section 18).
The let section of the Act provides that " the care of tho
persons of all minors (not being European British subjects)
and the charge of their property shall vest in the Civil
Court", subsequently (Section 34) explained to mean the
principal Civil Court of Original J uriediction in the district,
i.e., in the present ca.ee the District Court. It should be
here observed that it is" the charge of the property," not
"the property " itself, which is to " vest " in the Civil Court,
a distinction which seems to have been overlooked in the
judgmeot in Bai Ke11arv. Bai Ganga {o). A like provision to
that in the Act for Bombay exists in the similar Act for Ben-
gal (Act XL. of 1858, Section 2), but with a slight variation.
It enacts that " the care of the persons of all minors (not
being European British subjects) and the charge of their
property, shall be subject to the jurisdiction of the Civil
Court." In Sheo Numlun Singh v. Maasamut Ghumam
Kooeree (p), Phea.r and Morris, JJ., have held, so recently
as the 9th of January last, that one member (although an
infant) of an undivided family, governed by the MitJ.kehar,
law, has not such an interest in the joint property as is cap-
able of being ta.ken charge of and managed by the Court or
a guardian appointed by it under Act XL. of 1858. In that
decision we concur. But it may be ea.id that all of the sons
of Htisam were under eighooen at the time of his death and
of the execution of the original mortgage, and that, even as-
suming them to be members of an undivided family, subject
to Hindu law, the charge of the property of all of them for
that reason and by virtue of the peculiar language of the
(o) 8 Dom. H. C. Rep. 31 A. C. J; eee p. 33.
(p) 21 Cale. W, R. 143 Civ, R.
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BOIIBAY moH OOUBT BIPOBTS. 289
Act for Bombay (Act XX. of 1864) vest.ed. immediately 1874.

upon Hasam's death in the District Court, and ea.me under Sluv.n
the protection of that Act. We do not, however, agree in .u!~
that argoment. We think that the meaning of the first D ~...
. h .-...'.led , , ATU lllA°V.D
section, w en re5 ........ m connection with the sequel of the KHo.rA'.
Act, (which provides no such means for informing the Civil
Court as to the deaths of persons leaving infant children as
would enable the Court to act e:i: mero motu in every such
case,) is that the care of the persons of all minors and the
charge of their property shall be, as expressly provided in
the Act for Bengal, "subject to the jurisdiction of the
Court," and that, by the apparently accidental variation in
language in the let section of the Act for Bombay, no such
consequences were intended as insisted upon in the argument
for the defendants. The subsequent sections show how it
was intended that the Bombay Courts ·should be moved to
exercise their jurisdiction, and we see nothing in those sub-
sequent sections which would lead us to the conclusion that,
until the Court is moved to exercise its jurisdiction, the care
of the minors themselves or the che.rge of their property is
vested in the Court, _or that more was intended than that,
like the Court of Chancery in England, the principal Civil
Courts of districts should ha.ve the right, if moved so to do,
and if they so think proper, to take care of the persons of
minors and charge of their property ; and that until the
Court does so, the minors cannot be regarded 88 wards of the
Court, or their property a.s in its charge. It is only " for the
purposes of the Act " that eighteen is le.id down as the age
of majority (q). We should have expected a very different-
ly worded enactment if, a.s contended for the defendants, the
Legislature intended to prescribe eighteen as the age of major-
ity for all persons of all castes and creeds and for all purposes.
We do not consider that limit a.s applicable to any person
until the Act be brought into play by the exercise of the
jurisdiction of the Court. In the present 0880 the Court dicl
not exercise its jurisdiction (viz., by granting a ~rtificate
of guardianship of A 1i to ManMi) until one, at least, of the
(i) Seo. ao.
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1874. copa.rceners, Shivji, was npwa.rds of eighteen, and, therefore,·

suivJI the Act could not, according to the Calcutta. case, have been
AN!~::RS applied to the property to the extent, a.tall events, of ta.king
v. , charge of it. The charge would rem.a.in in Shivji as a.n adult
DA~!LVJI manager on behalf of the nndivided family. Whether or
not the Court could, under the Act, ta.ke cha.rge of the pro-
perty of a person who has completed his sixteenth year, but
is under eighteen, it is not necessary for us to express any
opinion at ,present.
But it is contended that Khojas are not regulated by the
law applied to Hindus who are undivided in family and
estate.
In the cause ce'lc'bre of The .Advocato Ge11,eral a.t the relation
of Daya Mahomed and others v. H. H . .Aga Khan and others(r)
Sir Joseph Arnould, in his able and eloquent judgment,
pronounced on the 12th November 1866, after a. long and
laborious trial extending over some weeks, arrived at the
conclusion that the Khojas are a -sect of people whose an-
cestors were originally Hindus, and were converted to the
Shia branch of the Muhammadan faith and to the Im.Ami
Ismaili sub-division of that branch, and have, until the recent
dissensions of the present century, throughout a.bided in that
faith, and have always been and still are bound by ties of
spiritual allegiance to the heredita.ry Imams of the Ismailis.
In matters matrimonial they appear to have followed the
Muhammadan law. In the case just mentioned as well as In
the Goods of Mulbai (s), although the circumsta.nce is not
mentioned in the report of the latter case, it appeared in
evidence in the notes of Chief Justice Couch that, until recent-
ly when the division took place in the Khoja community, their
marriages were celebrated by the Kazi of the Suni Muham-
madans, but that, since the division, the marriages of the ma-
jority of the caste have been solemnized in the presence of
His Highness Aga Khan, the minority still resorting to the
Kazi. b the case of Kasam Pirbhai (t) the Muhammadan
law of divorce was recognized. In that case the husband
(r) Reported ifl/rn. (s) 2 Bom. H. C. Rep. 276,
(t) 8 Bom. H. C. Rep, 95, Cr. Ca.
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BOJIBAY HIGH COURT REPORTS. 291
belonged to the minority, who had seceded to the Suni branch 1874.
of .Muhammadanism, a.nd the wife was alleged to belong to SmvJI
the majority who still a.dhereto the Shiii tenets of the Imam HA'sAH
• • AND 0TH II: Ra
Ismaih School. Amongst the Khojas, widows re-marry as "·
amongst other Muhammadans. But in matters rela.ting to DA~:!'.~JI
property, succession, and inheritance, the Khojas appear to
ha.ve retained to a. considerable extent the Hindu law. In
Hirbcti v. Sonlibai (u) they succeeded in showing that the
Koran did not govern the order of succession amongst them.
The facts there, a.s stated by Perry, C.J., were as follow:-
The pla.intiff Hirbai and her infant sister were the only
children of HajibMi Mir A1i, a. merchant in Bombay, who
died intestate, leaving behind him a. widow SonaMi, and pro-
perty, moveable and immoveable, in value a.boot three la.khs
of rupees. He had carried on trade in Bombay with his
brother Sajan Mir A 'Ii, and the latter, on his brother's death,
took possession of the whole of the property and retained the
ea.me until his death in 1843, when he left a. will appointing
his sister-in-la.w Sonnbai a.nd his wife Rahimatbai, his
executrixes. Hirbai filed her bill against these la.dies, claim-
ing, under the Koran, a share of her father's property accord-
ing to Muha.mma.da.n law. The defendants pleaded that the
family belonged to the community of Khojas, who were dis-
tinct from other Muhammadans, and under the government
of la.ws and customs differing in many respects from those of
Muhammadans, and which excluded daughters from any share
of their father's property at his decease, except, if unmarried,
from maintenance and the expenses of their marriage. On
evidence being taken as to the custom amongst Khojns, it
was held that the custom to exclude daughters from inherit-
ing, under such circumstances as presented themselves in
that ca.se, was established, and HirMi's bill was dismissed,
Perry, C.J., saying:" I think that the attempt of these
young women to disturb the course of succession, which has
revailed among their ancestors for many hundred years,
has failed." We may add that neither Sajan Mir A'li nor
Hajibhai Mir A'li left any male issue surviving them. This
(11) Pfrry'• Or. f'a. , llO.

11 622-o
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1874. fact is not stated in the report, but is known to one of the
Smvn members of this Court. According to Hindu law, where
AN!A~;!~R.B brothers are undivided in estate, the survivor takes the
D v. , whole. It seems reasonable to suppose that the two brothers,
, h ·•
ATU MA VJI
Ku0.1.&'. who were tradmg , , .
JOmtly, were m t at position; and that t his
was so is supported by the recorded fact that, although
Hajibh1ii, who died first, left a widow and daughters, Sajan
kept possession of the whole of the estate until his own
death, and, according to Hindu law as administered in this
Presidency, Sajan, the survivor, not having any male issue,
might dispose of his property by will, and did in fact appoint
his wife Rahimatbai and his sister-in-law, Sonab&i, widow
of Ha.jibhai, to be his execotrixes, and their title as such
was upheld against the daughters of Hajibhai. If Sajan
had died intestate, his widow would, according to Hindu
law, have been preferred to his female issue or to the
female issue or widow of Hajibhai The traditionary
doctrine of the Supreme Court and of the High Court
has, for upwards of, at least, twenty-five years, been that,
in the absence of proof of special usage to the contrary,
the law applicable to Khojas is, in matters relating to pro-
perty, succession, and inheritance, the Hindu law as admi-
nistered in this Presidency. Accordingly, in G&ngbai v.
Thavar Mulla (v), we find Sir Matthew Sausse, C.J., saying
that the Khoja caste, although Muhammadan in religion,
has been held to have adopted and to be governed by Hindu
customs and laws of inheritance. In "tlw Goods of Mulbai,
already mentioned, it was held that when a Khoja widow
dies intestate and without issue, property acquired by her
from her deceased husband descends to his relations, and
not to those of the widow. This was established in
evidence before Couch, J., as the usage amongst Khojas,
and is in accordance with Hindu law. The attempt by
Mulb:\i's brother to establish the opposite usage completely
failed. Couch, C.J., said :-'' What may be the origin of
this custom,'' (that in favour of the husband's relatives,)
'' I shall not now inquire. It is very possible that it arises
{t) 1 Bom. II. C. Rep. 71 ; seep. 73,
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DO'MllAY HIGH COURT REPOBTS. 293
from some analogy to be found in the Hindu law. I agree with 1874.
the observations of the counsel for the caveator, that the SHtVJI
law by which the KhoJ·as are governed is not properly HA 'sAM A.ND
1
' OTHERS
speaking, Hindu law, but probably that law modified by 11. ,
. own pecu1·iar customs; and I t h'm k 1t
t hell' . has b een suffi c1-
. DATU M Avn
KuoJA',
ently established that there is a Khojli. custom which ex-
cludes the wife's relations from succeeding to property such
as this."
In a contest for administration in a case of intestacy, which
ha.a lately arisen between the mother and widow of a
Khoja at the Ecclesiastical Side of the High Court, and,
after occupying Sir Charles Sargent many days in hearing,
now stands for judgment, the Ecclesiastical Registrar has
collected several precedents at that side,-some being cases
disposed of by the Court and others by ·the Ecclesiastical
Registrar (w). In all, the Hindu law, as indicating the person
entitled to succeed to the property, would seem to have
been taken as the guide in granting letters of administra-
tion, except in one or two instances, in which the person so
entitled expressly consented to the grant to another.
In the case of the Goods of Vallii M·usan·i administration
was granted by the Court, in 1855, to an undivided brother
of the deceased in preference to the widow. The children of
the deceased were infants. The Hindu law clearly prevailed
in that instance.
We think that we must consider it as the settled rule in
Bombay that, in the absence of sufficient evidence of usage
to the contrary, the Hindu law is npplicable in matters re-
lating to property, inheritance, and succession amongst
Khoja Muhammadans. 'There has not been any evidence
that, in such a case as the present, there is in Bombay
any usage amongst Khojas opposed to the Hindu law.
And no evidence has been given to the effect that the
ordinary rule in Bombay, viz., that of the Hindu law, is .
not applicable to Khojas at Thana. We think, therefore,
that we are bound to apply to them the Hindu law, and, it
being found that the original mortgage was executed by
(111) Infra p. 300,
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BOKBAY HIGH COUBT Rll'OBTS.
1874.
Shivji as head of the falDlly, and for it.a benefit, we musts
-----
8HIVJI hold it to bind the family and to be valid against all of
HA'sAll
Al'ID OTH.IB8 the sons of Hasam and the widow. The decree of the
D.ATu 11:&fA'VJI Assistant Judge is, therefore, affirmed with costs.
Kao.u.',
[ECCLESIASTICAL SIDE.]
Appeal No. 255.
1875.
July 2. In the Goods of Rahimbhai Allubhai, deceased.
HIBBA. 1 1, widow ........................ ...... Applicant.
GoRBA'I, widow, and another .••............ Caveatrizes.
In the abeence of satisfactory proof of a oaat.om, differing from the Hinda

law, the Courts of thia Preaidency apply to Kboj'8 the Hindu law of inherit.
ance and aucceaai.on.
If a custom opposed to Hindu law· be alleged to ei;iat amongst Khojaa,
the burden of proof reats upon the pel'IIOn setting up that custom.
The Khoj4s, having been originally Hindna and converted from the
Hindu religion by a Dai, or Missionary of the Imam of the Ismailis, to the
Muhammadan religion of the Sbia division and Imami Ismaili subdivision,
and being partly regulated by Muhammadan law, pe.rtJy br Hindu law, and
partly by cu,tom, occupy a position so pocul1ar that the Courts do not apply
to them, when seek.ing to prove a cnstom of inberitance or aucceasion, dif.
fering from the Hindu law, the stringent rule that the custom muat be
proved to be ancient, invariable, and submitted to aa legally binding, but
will act upon Hti&factory evidence that it baa been the general custom and
aoccpt.d aa such by the great majority of the Xhoja community.
A Khoja having died intestate, aad without leaving issue, W1l8 survived
by bis mother (a widow), hie wife, and a married eieter.
Held that, according to the custom of the Khoj'8, his mother waa entitled
to the management of his estate, and, therefore, to letters of adminisiration,
in preferenoo to hie wife or his sister.
THE hearing of this cause before Sir Charles Sargent, J.,

commenced on the 15th December 1873, and occupied
six sitting days in that month, fifteen sitting days in January,
and three sitting days in February 1874; that is to say,
twenty-four days in the aggregate.
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BOKBA.Y HIGH COURT REPORTS. 295
Ferguson and .Macpherson for the applicant Hirbai; the 1876.
Advocate General (Scoble) and Pigot for the caveatrix Huuu'1
Gorbai ; Latham and Inverarity for the caveatrix Rahimbhai ; Go~A'I
Mayhew and B. Tyabji for Fazulbhai Kasambha.i and Gulam AND uoTuu
Hu.sen Jaffarblw.i, ca.veators.
The facts and arguments appear with sufficient fulness
in the judgment, which was given on the 22nd of June 1874
by
SARGENT, J. :-The question to be determined in this case
is, who is entitled to administer the estate of one Ra.him-
bhai Allnbha.i, a Khoja, Mahomedan merchant, who died on
20th December 1870 childless, leaving a widow, mother,
and a married sister.
The first application for letters of administration was

made on the 80th of June 1871 by Hirbai, claiming as
widow of the deceased ; on the 17th of July 1871, Gorbai,
the mother of the deceased, applied for letters of adminis-
tration ; and on the 1st of August 1871, Gorbai and Ra.himat-
ba\i, mother and sister of the deceased, respectively filed
caveats against the application made by Hirbni.
On the 7th of August 1871 Gorbni filed an affidavit,
setting forth more particularly the grounds of her claim,
as mother of the deceased, to the administration of the
estate.
In the 11 th paragraph of that affidavit she says:-" I am
informed and verily believe that by the customs and usages
prevailing and recognized by the orthodox or Shi~ lmami
lsmnili Khojas, to which sect or community the said
Rahimbhai .Allubha.i belonged in his life-titpe, and to which
I and my family have belonged and are now belonging, I, as
the mother of the said Re.himbhai Allubhai, and in the ab-
sence of a male member in our said undivided.family, am en-
titled to be recognized as the head member of the family, and,
as such, am entitled to the whole estate, whether movee.ble
or immoveable, of such undivided family, and that the said
llfrbai and Rahimatbai, if residing u11de1· my care a.nd pro-
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296 BOIIBAY HIGH COURT RBPOBTS.
1875. tection, are entitled to receive their maintenance at my hands.

liIRBA'l That, according t.o the said customs and usages, a widow, on
v. . her remarriage is bound to relinquish to the head member
GORBAI '
.cm ANOTHER of her husband's family, whether male or female, all she has
received either from her late husband or from the -undivided
family to which she belonged. That a widow, unwilling
to live with the surviving members of such undivided family,
and who takes up her residence in a separate dwelling-house,
is entitled to a certain sum fixed by the Khoja Shia. Ja.mat
for her maintenance, if the parties themselves do not come
to eome arrangement on amicable terms in that behalf : "
and that any member of the said community, whether male
or female, who does not follow the customs of the caste,
and disobeys the orders of the Jamat in ·that behalf, is
punishable with excommunication or exclusion from the
community. On the 8th of August 1871 Rahimatbai
filed an affidavit, alleging that Hirbai we.a only entitled
to a befitting maintenance, and asking that administration
might be granted to Gorbai as the head surviving member
of the family.
On the 1st of June 18'72 Re.himatbai filed a second affi-
davit stating the custom t.o be as follows :-" That if a ma.le
member of the said sect (known as the Shia sect of the
Khoja.s) dies intestate a.nd without issue and leaving a
widow, a mother, and a sister, the widow is entitled to main-
tenance out of the estate of such deceased person, and the
mother succeeds to the entire estate, subject to such main-
tenance of the widow, and that the widow on her re-
marriage is not entitled to any maintenance, but, on the
contrary, is liable to restore to the estate all the ornaments
and jewels belonging t.o her husband in her possession.
That, in the event of the mother dying intestate, the daughter
succeeds absolutely to the entire estate, subject also to the
maintenance of the widow if not married."
On the 6th April 1872 Hirbai filed an affidavit in answer,
by the 7th paragraph of which she says:-" The Shia. sect
of the Khoja community, being the sect to which the said
Gorbai, Rahimatbai, and myself do belong, is, to the best o(
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BOKDAY HIGH COURT REPOR'IS, 297
my knowledge, information, and belief, governed almost ex- 1875.

clllBively by Hindu law in the matters of inheritance, and HmBA'I
I believe that the statement made in the said affidavit of the Go~BA'I
said Gorbai, and in the said affidavit of Visrambhai Ga.ngji AND ANO'l'HB&
and others, about the law and custom_applicable to the case
of inheritance to the estate of a member of our community
dying intestate without issue and leaving a. widow, a mother,
and a. sister, is incorrect and untrue. The fa.et is, that tho
mother in such case, except that she is, on account of her
relationship to the deceased and of her age, respected by
the members of the family, and is sometimes allowed a share
in the management of the estate, owing to the youth or
ignorance of the other members of the family, is not con-
sidered the head of the family, and is not entitled as of
right to the management of the estate of her deceased son ;
neither is she, as alleged head of the family, entitled to any
property or right beyond what she is entitled to as mother,
and as mother she is only entitled to suitable maintenance.
The widow in such a case is entitled absolutely to all the
personal and all the self-acquired immoveable estate of the
deceased, and to a. life estate in his ancestl'al immoveable
property, and is not bound to live with the mother or sister
of the deceased, and loses none of her aforesaid right by not
living with them or either of them. The sister of the
deceased would in such a case be entitled to no more than a.
suitable maintenance until her marriage, and to have her
marriage expenses, according to the position of the family,
paid out of the estate."
On the 7th .August 1871 Fazulbhai Kasambha.i filed a
caveat, claiming, by his affidavit in support, to be a. distant
male relation of the deceased, and to be entitled with other
distant mole relations to the property of the deceased, and
asking that the estate might be administered by the
.Administrator General.
On the 14th August 1872 J u.:ffarbMi Oulam Husen filed
a caveat, also claiming, in his affidavit, to be a distant ma.le
relation, and together with other distant male relations,
therein particularly referred to, to be entitled by the cus•
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298 BODAY HIGH COURT RIPORTS.
1875, toms of the community to the estate of the deceased, and

asking that the estate may be administered by the Adminis-
_U_m_n_.&_'1-
00~,1 trator General.
dI>ilOTBU
It is at once apparent, from the statement of the grounds
on which the seve~ claimants seek to obtain letters of
administration, that they one and all rely on some rule of
succession differing from what is laid down in the Koran,
which, prim.4 fac:ie, constitutes the substantive law for all
Muhammadans now. As far back as 1847 it was decided by
Sir E. Perry in the case of the Khojas and Memons, reported
in the Oriental Cases, (a) that if a custom as to succession is
found to prevail amongst a sect of Muhammadans and is
valid in other respects, the Court will give effect to it though
not agreeing with the express text of the Koran. That ruling
has always been regarded as having settled the question
as to the admissibility of proof of a special custom of
descent, and was acted upon by Sir Richard Couch in thtJ
Goods of Mulbai, (b) and I have no hesitation in following it
on the present occasion.
The question, therefore, to be determined, as it presents
itself at the outset, is, whether either of the claimants has
satisfactorily shown that there is such a custom of inheritance
among Khojas as that which is relied on for establishing
his or her claim to the_administration of the estate of the
deceased.
Before, however, proceeding to discuss the evidence in the
case, it will be necessary to consider an argument which
was addressed to the Court on behalf of the petitioner Hirb1H.
It was urged that it must be ta.ken as settled by authority
that the Hindu law of inheritance is the customary law of
Khojas in the absence of proof of any other custom to the
' contrary, and that, consequently, all that is necessary for
BirMi to prove is, that she is the widow of the deceased, and
that the cmUB lies upon the opposing claimants to prove the
existence of the respective customs on which each of them
relies.
(a) Perry 0. C. 110 ; see p. 125, {b) 2 Bom. H. C. Rep. 276,
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BOVBAY HIGH COURT REPORTS. 299
It was apparently thought that the judgment of Sir E. 1875.

Perry in the Klwja and Memon case, to which I have refer- Huuu.'1
red, was tantamount to a decision to tha.t effect. On a.n Oo~u'r
examination, however, of that ca.se it is clear, I think, that AND ANOTUR
all that was there decided, was what I have already stated,
with the addition that the particular custom pleaded, viz.,
that females are not entitled to any share of their father's
property but only to maintenance, and the expenses of their
marriage, if unmarried, was satisfactorily proved. At the
same time Sir E. Perry expressed an opinion, as the proba-
ble conclusion from the evidence before him, that the Khojas
were originally Hindus. He says : (c) "The Khojas are a
small caste in Western India, who appear to have originally
come from Sindh or Cutch, and who, by their own traditions,
which are probably correct, were converted from Hinduism
about four hundred years ago by a Pir named Sadr Din.
Their language is Cntchi; their religion Mahomedan; tbeit·
dress, appearance, and manners, for the most part, Hindu.
These latter facts, however, do not wo.rrant the conclusion
being drawn, if such conclusion is necessary for decision of
the case (and I think it is not) that the Khojas were origin-
ally Hindu, for such is the influence of Hindu manners
and opinions on all castes and colours who come into con-
nection with them that gradually all assume an unmistake-
able Hindu tint. Parsis, Moguls, Afghans, Israelites, and
Christians, who have been long settled in India, are seen to
have exchanged much of their ancient patrimony of ideas
for Hindu tones of thought ; and, in observing this pheno-
menon, I have been often led to compare it with one some-
what similar in the black soil in the Deccan, which geologists
tell us possesses the property of converting all foreign
substances brought into contact with it into its own ma-
terial."
It may be clearly gathered, I think, from the tone of the
judgment, and the discussion which the question received,
that it was regarded as res integra.
(c) At p. 112.
11 622- p
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300 BODAY HIGH COURT RIPOBTS.
1875. Bnt it was said that in any case, since the judgment of
lhRBA.'I Sir E. Perry, an uniform practice has r-evailed in this
0o:iiA'r Court in the exercise of its ecclesiastical 3urisdiction, both
AND ANOTHBR in its contentions and non-contentious business, of adminis-
tering the Hindu law of inheritance in the absence of proof

of any special custom to the contrary.
Now an examination of the records of the Ecclesiastical
Side of the Supreme Court (during the interval of 16
yea.re which elapsed between the date of Sir E. Perry's
decision and 1863) shows that there were ae many as ten
applications for letters of administration to Khoja ·estates,
seven of which were disposed of by the Registrar as non-
contentious business and three by the Court itself.
The first of these latter cases is that of V allu Musbi in
1855, (d) who died l~ving a widow, a son and daughter who
were minors, and a brother. The widow applied for adminis-
tration. A caveat was entered by the brother, alleging that
his brother had been his partner and joint in food and estate,
and that the widow was illiterate and unfit to manage the
estate, and that the widow of a Khoja leaving male issue
was only entitled to maintenance. The Court granted letters
of administration to the brother. This decision is in a.ccord-
a.nce with Hindu law on whichever ground the Court pro-
ceeded.
In the next case, that of Pirbhai Manji (e), the deceased
left a widow and an infant son. Application was made by the
widow, and at first opposed by persons who relied on a will;
but, the will having been declared invalid, they alleged that
the deceased had other relations, viz., a maternal grand-
mother and a maternal uncle, and 'his four sons. Adminis-
tration was granted by the Court to the widow, This
decision is in accordance with Hindu law, and exclusively
so, as by Muhammadan law the widow would not be the
natural guardian of her infant son for the purpose of manag-
ing his property, although she might be entitled to the
(d) Decided by Yardley, C.J., 26th November 1855.
(e) Decided by Yardley, C.J., 11th February 1856.
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BOKBAY HIOB COURT B&l'OBT8. SOI
custody of the child if under seven. And, as no custom was 1875,
alleged, it is apparently a decision that the Court will apply HmBA'I
v.
Hindu law. GoRllA.'I
In the last case of Dossa N&nji in 1862 (f) the deceased AND ANOTHU
left a widow and niece. The widow applied for administra-
tion, and the niece objected on the ground that the widow
intended to sell the property ; and the Court, consisting of
Sir M. Sa.usse and Sir J. Aroould, granted administration
to the widow, she undertaking not to sell or mortgage. This
is also in accordance with Hindu law.
Passing to the cases decided by the Registrar, the first is
that of Ja.iraz Dhe.rramsi in 1855, who died leaving a. widow,
four brothers, and no issue. A brother applied for ad-
ministration, and the widow entered a caveat, but with_
drew it, and letters were granted to the brother. The
second is that of Ma.homed Alluwany, where the application
was by a brother, alleging that he had been joint in food
and estate with his brother, and that a widow was only
entitled to :maintenance; and the Registrar, on consent of
the widow, granted letters to the brother. In the third case.,.
Pardhan Ra.vji, the mother applied, there being a widow and
an infant son, and the Registrar refused, unless the widow
consented, which she ultimately did. The fourth is that
of Mithn Somji, where the family le!t consisted of three
sisters, and administration was granted to one,. the others
being in Cutch. The fifth is that of V allubha.i Alvany,
where letters were granted to the widow, there being a,
mother and daughter. In the sixth, that of Dada Al:va.nna
in 1859, the family consisted of a. son, six daughters, and a.
grandson, and administration was given to the son. In the
seventh, that or Pachan Punjani, administration was granted
to the widow.
It is to be remarked that in all these cases,. with the ex-
ception of two, the widow either applied for administration
or entered a. caveat, and that in a.II administration was either
given to the widow, or, if not, it. was with her consent, or
(/) Decided by Sau11110, C.J., and Amould, J., 29th September 1862.
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302 :BO.HBAY HIGH COURT REPORTS,
__1_87_5_._ under special circumstances, analogous to those of an undi-

HIRBA'I vided Hindu family, as in the case of Vsllu Musani.
11.
Al(;:~.. It may be said that it would be unsafe to draw any posi-

tive conclusion from these scanty materi~s as to what the
practice of the Court really was, although they undoubtedly
point to such a practice as !_have stated, and are difficult to
explain on any other supposition.
We are, however, not without corroborative evidence on
this point, and that, too, having regard to the source from
which it comes, of a most valuable description. In 1863
Sir M. Sausse, delivering judgment in G,fo9bai v. Tliavar
Mulla (g), speaks.of the Khoja caste as" one which, although
Muhammadan in religion, had been held to liave adopted and
to be governed by Hindu customs and laws of inheritance.''
In that case the question for the Court was the construction
to be put on the word "charity" in the will of a Khoja.
It was contended that it must be construed with reference to
Hindu notions of "charity", which are expressed by the
Hindu word "dhurm ", and that, consequently, the devise
was bad, having regard to the decisions of the Court as to
devises to charity under the description of dhurm in Hindu
wills. The Court refused to adopt this argument, and held
that the testatrix, having made her will in English, must be
taken to havo intended what was clearly expressed in it, and
that the Court could not speculate on tho particular views
she might have had a.s to charity.
Although, therefore, there was no actual necessity for
deciding the question whether Khojas were governed by
Hindu customs and laws of inheritance, it was assumed
throughout that they were so, or there would have been uo
foundation for the plaintiff's contention, and uo necessity
for the Court'1:1 reasoning to justify its conclusion in favour
of the devise in question. The statement of the learned
Judge was, therefore, something more than a. mere obile)·
dictum as argued he1·e by counsel for the mother, and the
cs:.e shows that the Khoja. caste was koatcd by ull parties
(g) l Bom. H. C. Rc11, 71; sec p . 73.
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BOMRAY HIGH COURT REPORTS, 303
as one which must prima Jacie be taken to be governed by 1875.

Hindu customs and notions. As it is not likely that so care- H1a11,t:1
ful a Judge as Sir M. Sa.usse would have mistaken the real
point decided by Sir E. Perry in the Khoja and Memon ca8e, il» ABOTHD
1 0o:~. .·
his statement as to the law of inheritance by which Khojas
were governed must have reference to the established prac-
tice of the Court in dealing with questions of succession in
any one of its several branches of jurisdiction.
Since 1868 the applications for administration of Khoja
estates have been very few. In 1864, in the Goods of
Pachan Punjani, administration was granted to the widow.
There appears to have been no opposition to it. In 1866
the question of the a<lministration of the estate of Mulba.i
ea.me before Sir R. Couch (h), the question being between
the brother of tho deceased and the relations of her husband
from whom she had inherited the property. The case ~ade
for the brother of the deceased was that his claim was in
accordance both with Hindu and Muhammadan law ; whilst
the caveator contended that the Khoja law of succession was
neither Hindu nor Muhammadan law, but a special law of
their own, which was to a great extent analogous with
Hindu law. Sir R. Couch in his judgment says : (i) "I
agree with the observations of the counsel for the ca.veator,
that tlie law by which the Khojas are governed is not, pro-
perly speaking, Hindu law, but probably that law modified
by their own peculiar customs," and he held the custom
proved in that case. The custom would appear to be in
accordanco with Hindu law according to the authol'ities,
although it does not appear to have been regarded as iuch
either by the learned Judge or counsel for either party.
Although some remarks of the Chief Justice would almost
imply that Hindu law would be applied in the absence of
proof of any modification in it having been adopted by the
community, they can be scarcely relied on as an express
authority to that effect.
, 'l'he case was doubtless ratl1er
treated as one between persons claimiug under two rival
customs.
· (h) 2 .Bom. H. C. Rep. 276. (i) id. ib. 264.
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30i BOMBAY BIOB COURT BBPOBTS.
1875. There was one other case in 1870, in tM Goods of Lillxii,

HUU1A'1 wife of Rahimbbai Dharramsi. She left three sons and a
0o:;....1 daughter, all minors, and a husband, surviving her, and
AliI> .uOTau letters of administration were granted to the husband by the
Registrar on 9th March 1870.

The most important occasion, however, on which the man-
ners, customs, and religion of the Khojiis were brought promi-
nently under the notice of the Court was in the ea.so known
as the .tiga Khan case, decided by Sjr J. Arnould in 1866. (j)
That learned Judge, at p. 11 of his interesting and exhaust-
ive judgment, in answer to the question " who and w bat
are the Khojas f ,, says : " From the evidence adduced in
the case, the more probable conclusion, I think, is that they
were originally Hindus of the trading class inhabiting the
villages and towns of Upper Scinde." That the doubt ex-
pressed by the words " I think " was not intended to apply
to their having been originally Hindus, but only to the
locality from which they came, is conclusively shown by his
making the circumstance of their having been converted
from Hinduism the ha.sis of his very important argument,
which he raises at p. 18, on the religbus book of the Khojaa
called Da8Utar, the first nine chapters of which treat of the
nine incarnations of the Hindu god Vishnu. Unless the
Khojas were originally Hindus, the inference drawn from
that work by the learned Judge in favour of the Pir Sadr
Din, by whom they were converted, having been a Shia and
not a. Suni, would have bad nothing to rest on.
The customs of the Khojas once more engaged the atten-
tion of the Court in the case of Kasam Pirbhai ood M-a wifo
Hirbai (k), but there wa.s no necessity in that case for con-
sidering the present, question, and the jud.gment delivered
by the Chief Justice is silent on it.
This summary of the decisions of this Court, as well a.a
of the cases disposed of by the Registrar in the non-conten-
tious business, explained by the remarks of Sir M. Sausse in
Gatt9bai v. Thavar Mulla (l), satisfactorily shows, I think,
(j) See post. (k) 8 Bom . H. C. Rep. 95 Cr. Ca.
(l) 1 Bom. H, C. Rep. 71. ·
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BOJlllAY HIGH COURT REPORTS. 305
that the Khojas have, for the last 25 years at least, been re- 1875.
garded by the Court, in all questions of inheritance, as HIRBA'1
converted Hindus who originally retained their Hindu law of oo:~A'r
inheritance, which has since been modified by special custolllEI, AND ANO'l'BD
and that an uniform practice has prevailed during that period
of applying Hindu law in all questions of inheritance, save
and except where such a. special custom has been proved.
It may be said that no express decision can be cited in
support of either of the two propositions, that the Khojas
were originally Hindus who were converted to Muhammad-
anism, retaining their Hindu laws and customs, or that this
Court will always apply the Hindu law of inheritance in their
case in the absence of special custom ; but the uniform course
of practice, extending over the last 25 years, has assumed
the truth of the first proposition, and has never, I believe,
deviated from the rule enunciated by the latter.
Lastly, I may add that in a special appeal recently decided
by Sir M. R. W estropp, C.J., and West, J., a question of
inheritance having a.risen as to the estate of a. Khoja, the
Court held that, in the absence of proof of a special custom,
Hindu law must be administered (m). I need scarcely say
that the opinion of the Chief Justice from his long experience
in the ecclesiastical business of this as well as of the late
Supreme Court, is especially valuable on a question of this
nature.
Under these circumstances this Court cannot but throw
upon those who dispute the right of the widow to administer
(a right which would be clearly hers under Hindu law) the
burden of proving the existence of a custom inconsistent with
that right. •
I shall first deal with the claim set up by Faznlbhai
Kasambhai and Gulam Husen Jaffa.rbhai, distant relations
of the deceased.
Their contention is that the female members of the family,
including widow, mother, and sister, a.re only entitled to
maintenance _out of the estate, and that, in default of male
(m) Supra, p. 281.
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306 BOJIBAY HIGH COURT RIPORTS.
1875. issue, the nearest male relation, however distant, or, at least,
Hiau·1 within the degree of relationship in which they stood to the
00 ~ 1 deceased, takes the property, subject to the charge of main-
.um ~OTBu taining the surviving unmarried female members.
In support of this contention they rely generally on the
evidence given by the witnesses called by the other claimants
as elicited in croS.11-examination, but more particularly on
that given in examination-in-chief by Rahimbhai Hemraj,
Ahmedbhai Habibhai, and Bussan Khan Mahomed. Second-
ly, on the evidence of their own witnesses-Alli Mahomed
Bhimji, Mahomed Dharramsi, and Gulam Rusen Hirji-the
first and third of whom mentioned cases, supporting their
view of the custom, which had happened at Jaffefflbad and
Ragoola in the state of Bhaunagar.
Lastly, they urge that the cnstom as alleged by them is
the more reasonable one, having regard to the adi:qitted rule
of the caste, that a widow on her remarriage is bound to
restore to her deceased husband's family all property which
she may have received from him.
Now, of the witneBSes called by Mr. Ferguson for the
widow, Rahimbhai Hemraj and AhmedbMi Ilabibhai, two
of the most respectable Suni members of the Khoja commu-
nity, undoubtedly give direct evidence in support of the
custom as stated by Mr. Tyabji's clients, the distant male
relatives. The first states, as hie view. of the Khoja custom
of inheritance, that, where there a.re no children, the male
relations take the property and maintain the mother, widow,
and sister ; that the male relations may be at any degree of
distance; and that they always take in preference to women,
• who are only entitled to maintenance. The latter says : " I
.consider our settled custom is for ma.le relations to take tl1e
property, and for females only to have maintenance out of
the estate. That is my opinion." Afterwards to the Court
be said: "l say so, because I have always heard it." Evidence
to the same effect was also given by the witnesses called by
Mr. Tyabji-Mahomed DhaITa.msi, a Su.ni merchant of re-
spectable position ; Alli Ma.homed Bhimji, who was certainly
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BOllDAY HIGH COURT REPORTS, 307
a witness of great intelligence ; and Gulam Rusen Hirji, a 1875.
native of Jafferab,d and well advanced in yea.re. None of H1Ru'1
these witnesses, however, were able to mention any instances 0 0;;A'I
in which a. relation more distant than a brother or father of AND ANOTHU
the deceased had ta.ken the property, except the two last
witnesses, who mentioned three or four cases which had
occurred at Jafferab~ and Ragoola. In the case of Valji
Manji a first cousin took ; in Gi~ and Teja Ragvlni, a
nephew; and in Deornj Virji's case apparently more distant
relations took.
It was, however, urged that :Mr. Tyabji's clients C'ould
not reasonably be expected to give many instances in which
very distant relations had taken ; such cases would neces-
sarily be very few and far between. But that, if the custom
were satisfactorily established in the case of brothers, father~,
uncles, nephews, and cousins, that would be sufficient to
establish the principle, and it might well be inferred, at least
in default of evidence to the contrary, that the custom was,
as they broadly state it, in favour of male relations, however
distant. This argument is, perhaps, not altogether unreason-
able.
Passing, . however, to the numerous and important wit-
nesses called by the widow and mother of the deceased, we
find a mass of evidence which satisfactorily shows that, what-
ever difference of opinion there may be as to which of those
relations has the preferable right, there is little or none as
to the right of one or other of them, where there is no male
issue, to take the property and manage it, unless where there
•
is a father living, or the deceased and some near relation, as
uncle, brother, or nephew, bad been living and carrying on
business together, or perhaps simply carrying on business
together•
.AJJ to what their powers over the property might be,
nearly all spoke hesitatingly ; whether they or either of them
could sell or make a good title, whether they or either of
them could spend all the income, or were bound to accumulate
the surplus income after providing for their maintenance,
B 622-q
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808 BOK BAY HIGH COURT REPORTS.
1875. were matters on which it may be conceded they differed not

Hnuu.'1 a little ; but, notwithstanding the many discrepancies and
oo:iu•1 apparent contradictions into which they were led in Ol'088•
.u» .uOTHu examination by the ingenuity of counsel, or the difficulty of
speaking with &eOW'&.OY on such a subject, it is imp<>BSible to
entertain any doubt, after reading their evidence, that they
considered the widow and mother (subject to the above ex-
ceptions) were entitled, at least, to manage the property
during their lives or until they married.
It will, I think, be sufficient to refer particularly to the
evidence of the Mukhi and Kamaria of the caste and one
or two of the most intelligent and elderly members of the
community. The evidence of the other witnesses called by
Gorbai tvas substantially to the same effect.
To begin with Allara.khia Sumar, the Mukki of the Shia
Khojas in Bombay :-This witness was called to support the
mother's claim as against the widow, and in his enmination-
in-chief maintained, in the event of a man dying without
male issue, the right of the mother to the property absolutely
as against all relations but the father. However, lwhen
cross-examined by Mr. Ferguson, he says: "The widow is
only entitled to maintenance. She manages the property if
it is separate." Further on he says: "The brother's son
cannot ta.ke when the widow is alive. How can the uncle
take when the widow is a.live f The son, brother, father,
grandfather can take, but no other male relation whilst the
widow is alive."
The evidence of Khaki Paddamsi, the Kamaria, is to the ea.me
effect. Whilst the mother is living the right of the widow is to
maintenance, bot he distinctly admits her right to the manage-
ment of the property as against the male relations in default
of male issue. He says : "When the mother dies, the brother
takes the property, not the widow-I mean if it is joint pro-
perty; but, if it is separate, the widow takes it." And, again :
"The surplus income, when the widow takes the property,
after providing herself with maintenance, remains with her
during her lifo-time "; and, again : "The brother has oo
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interest in the property during the life-time of the widow, if 18'Z6.

he was separate from his brother." llLu.t.'1
o.
Lal3"i Ladd.hi, after stating tha.t the mother manages the GoBBA'1
.urI>ilOTHD
property if the brothers were divided, says : "H the
deceased leaves only distant relations they tako as far as the
third generation. In that case the widow takes, and it goes
afterwards to the nncle and the uncle's son. Wbere the
relations are distant the widow can spend more than is neces-
sary for her maintenance."
The other witnesses for Gorbui were not questioned parti-
cularly as to the widow's rights as against ma.le relationa
other than male issue, and they necessarily confine them-
selves to stating the mother's rights; but their evidence ia
distinotly opposed to the a.lleged genera.I principle set up by
the distant relations, viz., that a.II female relations are only
entitled to maintena.noe out of the estate, and not to the-
ownership or management of it.
If we pass to the witnesses for Hirbai, excepting Rahim-
bhai Hemraj e.nd Ahmedbhai Habibhai, their evidence is.
clear that the widows of Khojss dying without male issue-
are entitled to take and manage the property as a.gainRt other-
male relations (except, perhaps, under circumstances where
brothers or an uncle and a nephew have been living and
trading together), and the only point on which they speak
with indistinctness is as to her powers, and that the mother
is similarly entitled in default of a widow, or on her death
or remarriage.
I shall refer only to the evidence of two of those witnesses•
Jairaz Pirbhai and Sujibhai Manikbhai. The former'
whom I consider a most trustworthy witness, says : " The
mother has the better right to manage the property, giving
the widow and sister maintenance. If a brother were left,.
he would manage, but not distant relations ; but it would go
to them after the mother.'' Afterwards he says : "There is
no established custom where the property goes after the
mother." In cross-examination by Mr. Tyabji he says:" If
siator or widow survive the mother, I do not think distant
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310 BOXBAY HIGH COURT REPORTS,
Only very
- - - - relations can take. I say this 88 far 88 I know.
1875.
near relations take when the parties are separate.
HIRBA.'l I say that
0o:~, 1
.A.ND .ANOTJIU
only a brother or father would take in that caae."
Sujibhai Manikbbai, who is a cousin of HirMi, considers

that both widow and mother take before all male relations
except a brother, who would manage where he and deceased
had been living jointly. This witness was cross-examined
by Mr. Mayhew respecting the course he took with regard
to the administration of the estate of Kasam Kaman, who
died at Zanzibar, and was his father's paternal uncle's son.
He left no widow or legitimate children, but a mother, and
the witness claimed to be his nearest male relative. It was
pointed out that the power of attorney which he sent in his
own name, and the letters which he wrote to Zanzibar re-
specting his relative's estate, were inconsistent with his
evidence. In the letter (Exhibit No. 1) he doubtless refers
to the mother's right as a right merely to maintenance and
clothing. At the same time in a subsequent letter he urges,
as e.n argument for the property being sent to Bombay, that
the mother is sitting there, and that no one can claim whilst
she is alive. All that can be said is, that the letters show
that he asserted his right to have the property sent on both
grounds. Considering that he was acting with the full
knowledge of the mother, and was obviously on good terms
with her, this is only what he might be expected to do.
Lastly, if we examine the actual cases referred to by the

witnesses, in which a brother or other near male relation has
taken, where there has been a mother or widow surviving,
it will be found that in all of them, where the circumstances
are known, the deceased and such near male relation were
living jointly on the income of anoestra.l property, or were
engaged in trade, or, lastly, it was deemed the more con-
•venient course, or it was the result of a compromise. In the
cases of Jiva. Mfoik, Ve.Hu Musani, Ramji Varji, Vallu
Alva.ni, Piru Sumar, and Kiisam Karmalli, the deceased and
the male relative who succeeded, had been living toge-
ther on ancestral property or engaged in trade. Those of-
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BOK:DAY HIGH COURT REPORTS, 311
Jairaz Dharamsi, Gulam Rusen Dhanji, and Kasam Fakir 1875.

may be explained on one or other of the latter grounds aa HI.au·1
matters of arrangement between the parties. In the former oo!~A'r
case Rahimbhai Dharamsi says that, in the case of his bro- AND .&1wmu
ther Jairaz, the widow said: "I am a woman: where can I
go ? " and of her own accord gave him and the other sur-
viving brothers power. "We administered it for her until
she remarried." In the latter case the witnesses say that
a lump sum was given, which certainly points to the com-
promise of an essential right by the widow to the property,
or, at least, to the management of it, rather than to a pay-
ment in lieu of a simple claim to maintenance.
Looking at the vastly preponderating evidence in favour
of the right of the widow and mother to the management, at
least, of the property, as against any but very near relations,
and those, too, under exceptional circumstances, and that
there are no cases on record of any relation more distant
than a father or brother taking, except three, which are
stated to have occurred at Bhaunagar and Jafferabad, it
would be impossible, I think, to hold that the custom, as con-
tended for by Fazulbhai Kasambhai and Jaffa.rbha.i Gulam
Rusen, has been proved.
I now pass to the consideration of the question as between
the widow and the mother. The two principal witnesses in
support of the mother's claim are the Mukhi and Ka1naria
of the JQ//nat • . The former states that by the custom of the
caste the mother succeeds to the property of her son who dies
leaving no male issue, and can dispose of it as she thinks fit,
providing maintenance for the widow and unmarried female
members of the family. As to the rights of the widow, he
commences by placing them as low as even Mr. Tyabji's
clients could wish. In examination-in-chief he says : " She
is only entitled to maintenance out of the estate ; she cannot
spend the income. She never manages the property where
there are male relations within four generations." In cross-
examination, however, he says : " If a man dies leaving a
widow and nephew who is grown up, the nephew takes it,
and the widow is only entitled to maintenance." Asked the
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312 BOJIBAY HIOB COURT UPOB'l'8.
1875. question again, he says : " I do not know for cert&in." Ask-
Bnuu'1 ed. again, " The cnstom is come down from ancient times.
0o:;,.,1 The widow is only entitled to maintenance. She ID&Dagee
AJr1> .UOJ'BD the property if it is separat.e, and preserves it for the nephew."
Afterwards the witness says : "The widow and nephew would
manage it together," and then that he could not speak posi-
tively. Afterwards he says : "How can the brother's son
take when the widow is alive ? How can the uncle take
when the widow is alive ? " In examination-in-chief he
had stated that some widows acquiesce, and some object
when instigated by others,-" I cannot say which are the
most numerous• .When they object, they compromise it,
and sometimes come to the J amat.,, In answer to me he said :
'' When I say that the mother should succeed in preference
to the widow, I mean that I oonsider it the right role. Not
many widows object to their mothers-in-law taking the
property ; when not on good terms with their mothers-in-
law, they do object. They only object when they are insti-
gated by others. I consider that there is no division of opi·
nion in the caste."
The evidence of KMki Paddamsi, Kamaria of the caste,
was to the same e!fect, but had the advantage of being ex-
pressed with far greater clearness and precision. He says :
" If a. man dies childless, leaving mother, sister,~widow, and
no near male relations, the mother takes. The father takes
if he is alive, bot no other male relation before her. He
becomes absolute owner, bot is bound to pay the widow
maintenance. The sister takes if there is no mother and
widow. If a man leaves a widow and unmarried sister, the
widow manages the property and maintains the sister. On
her death the sister becomes the owner. The widow has no
ownership in the property ; I mean she cannot dispose of it
or sell it. Subject to the claims of the widow and sister, the
mother is absolutely entitled to the property, and can apply
it to any purpose she likes. This is an ·ancient custom ; I
have heard it from old people. I never heard any one say
the widow was entitled before the mother." Further on he
says : " I say it is usual for the widow to acquiesce in tho
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BOJIBAT HIGH COURT BIPOB.TS, 313
mother's taking. The widows who object are few. I heard 1875.
this custom from members of my own and other families in H1aBA'I
Bombay." In cross-examination by Mr. Tyabji he says: oo:ii.•1
u The mother may sell a house, but must put the proceeds AND ilOTBD
out at interest. How can she do what she likes with it
when the widow is entitled to maintenance? She takes the
income, but must keep the property. After her death the
brother would take. Where there is no widow, but only
a brother, she can do what she likes with it. If she remar-
ried, she could not take it to her new husband's house; she
must give it to the brother. When the mother dies, the
brother takes the property, not the widow-I mean if it be
joint property, but if it is separate, the widow takes it.
The surplus of the income, when the widow takes the pro-
perty, remains· with her during her life-time. The brother
bas no interest in the property during the life-time of the
widow if he was separate."
The cases relied on by these witnesses in support of the
superior claim of the mother were those of Virji Rattansi,
Nura Thava., Virji Fakir, Kiisa.m Surji, and Muchi Vallab.
These were all settled in favour of the mother's right to the
management of the property, either privately or by the
Jamat, after the question had been referred to it by the
mother and widow. Whether the mother resisted on prin-
ciple, or merely as to quantum of maintenance, is not so
clear.
The next most important witness was Hussa.nbhai Gulam
Hueen, a ship-owner in a large way of business, having
branches at Zanzibar and Mozambique. This witness spoke
to what have been called "the Zanzibar cases." Those
oases, assuming them to be genuine, undoubtedly go to prove
that the custom, as understood by the Jamat of Zanzibar,
snpports the right of the mother.
Karma.Hi Suji, who had lived forty years at Zanzibar, and

been twice Mukhi, of the Jamat, gives the same account of
the custom at that place.
Dig1tizedbyGoogle~
1875. The other witnesses who were called for Gorbai were nea.r-
HIRu'1 ly all persons engaged in petty trade, or were more or less
<Jo:~A'I closely connected with Gorbai, or on terms of intimacy with
AXI> .uoTBD her relations. Their evidence is substantially the same as
that given by the Mukhi and Ka.maria, but I do not consider
that it can be regarded as adding much independent strength
to that which has been already referred to.
The most important evidence, however, in support of the
mother's superior claim, was given by one 0£ the witnesess
called by Hirbai herself-I allude to Ja.iraz PirbMi. I
have already said that I consider him a most respectable and
reliable witness. He is a man of position in his caste, and
was, I believe, honestly anxious to assist the Court with such
knowledge of the customs of the caste as he possessed. He
says : " Inheritance and succession with us are determined
partly by Hindu law and partly by custom. I say this
partly from what has been decided in the Courts, and partly
from what obtains now in Khojti communities. If a man
dies leaving no children, a widow, mother, and sister, I think
the mother has the better right to manage the property,
giving the widow and sister maintenance. I know of no
instance. I remember one instance of a widow managing.
Vnllu Alvani's. widow did. I do not know Pirbhai Manji,
nor Dossa Manji. I knew Pachan Punja. In that case the
widow ~ e d . I remember the widow of Hirji Manji.
She managed the estate. I do not remember any instance
of the mother managing the estate. There is a strong feel-
ing in the Khoja caste on this case. I believe a few leading
members of the Jamat are making exertions for Gorbai.
They have considerable influence with our community."
Again, "there is no established custom as to where the pro-
perty would go after the mother. The Jamat has ma.de
no custom. I do not think the question is in don bt so far
as the mother is concerned. I · have heard of instances of
small properties, but cannot remember them. It is'not a
fixed custom, but many people are of this opinion. I mean
the Jamat has never assembled and determined it so. I do
not consider it to be a fixed custom 1llltil the Jamat has done
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so." However, afterwards he says : "I do not remember a. 1875.

singleinsta.nce of inheritance being determined by theJamat." HIRBA'1
To the Court he said : " What I have stated as .to the rights oo:nA'I
of mothers and widows, a.re my own views of the custom. u» .utOTllll
In the case of the mother I consider it is well established.
I believe the majority of the community a.re in favour of my
view as to the mother. As to th_e rest of what I have said,
there is not, I think, any well-established custom."
Passing to the other witnesses called by Hirbai, the first is

Kulpan Ratta.nsi, who although a Shia, from his own admis-
sion was clearly not an adherent of Aga. KMn. He con-
sidered there was no settled custom. He says : "The
inftuential party takes the property. Such matters a.re
generally settled privately. There is no settled custom."
Hussan Khan Ma.homed, a. Suni Khoja, who had always

lived in Bombay, said : "The widow, mother, and sister are
all entitled to maintenance, but I cannot say who will suc-
ceed. The Sirkar must decide. The widow's right is pre-
ferable to the mother's"-obviously expressing his own opi·
nion.
Mir Ali Dama says : "I never heard of the mother taking
in preference to the ·widow. They are entitled in equal
shares. The mother and widow would take my property
jointly if I and my brother were separate; that is my view
of it, what I think would be best. I cannot say whe_ther
the mother or widow should take the chief part in the man-
agement. There is no settled custom."
Pirbhai Khimji says : " I believe when a man leaves a
widow, mother, and sister, the widow is entitled, but there
is no settled custom. If the property is small, the question
is usually compromised." In cross-examination he says:
"The mother is entitled to be maintained in good order.
Mter the widow dies, the mother takes. The mother is
much respected. If she is intelligent, she is regarded as the
head of the house. The daughters-in-law should listen to
their mothers-in-law if their husbands are alive, and also
B 622-r
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816 BOVBAT RJGH COU£1' BEPOR'l'S.
afterwards u long as they retain their wits.

1875. Some obey
H;;~ their mothers-in-law and some do not."
Y.
'°"k11"'' Salli Mahomed Gol&m Seya gays: "When a man dies,
• • 0 A!l<trDD •
leaving a mother, widow, •
and 81Ster, J bel"1eve t h e wt"dow
takes. The Hindu law of inheritance is principally the guide
in matters of succession. I never heard of an instance in
which the mother was preferred to the widow. Before the
present case I do not remember hearing the point raised."
Dharamsi Kaku, Rahimbhai Dharamsi, and Sojibbai
Minikbh:ii, all respectable and intelligent witnesses, ga'\'e
Rimilar evidence in favour of the widow's claim. The latter
two, however, are open to the remark that they are connec-
tions of the widow Hirbai.
Such being the evidence on the rival claims of the mother
and widow, it is at once clear, I think, that it is not of a
character to support the pretensions of either party if tested
by the strict role, applied in cases where a custom is set op
at variance with the written law-such, for instance, as would
properly be required where a particular class in the Hindu
community sets up a special law of inheritance differing from
the general Hindu law. Under the special circumstances,
however, of this Khoja community, the question as to the
adequacy of the evidence presents itself un<ler a somewhat
different aspect. This Court having established a practice
bn11ed upon the assumed peculiar circumstances under which
this community became converted to Muhammadanism, the
question is no longer between the written positive law laid
down in the Koran, and the customary law of inheritance, a.s
allege« by a sect of Muhammadans, but rather between such
customary law and that law which this Court has adopted as
the one which presumably is the custom of the community
until the contrary be proved. Such evidence, therefore,
unuer the circumstances of this case, may, I think, be deem-
ed sufficient to rebut that presumption, although it may fall
short of " proof of usage so long and invariably acted upon
in practice as to show that it has by common consent been
submitted to as the governing rulo of tho . collltnunity," to
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BOJCBAY HIGH COURT REPORT& 817
adopt the language of Scotland, C.J., in the case 0£ Sit-,man- 1875.
a,i,ja v. Muttu R,1,m,,linga (n}, and that it will be sufficient HtRBA'I
if, in the la.ngaage of the Jurist 1'hibaut, "a majority, at Go:aA'i
least, 0£ the community look upon the rule as binding, and AND ANOTB&a
it be established by a series of well-known, concordant, and,
on the whole, continuous instances" (o).
Now there is undoubtedly a considerable amount of evi-
dence in this case to show that the great majority 0£ the
community consider that, according to the custom 0£ their
caste, the mother ought to have the management of the pro-
perty in preference to a childless widow, and that that cus-
tom h!Wi (so far as there is any evidence before the Court)
been invariably adopted by the Ja.m.ata of Bombay and Zanzi-
bar, and also in all cases of private arbitration. The cases
to which I have referred in discussing the evidence of the
Mnkhi and· Ka maria establish this sat~factorily as to Bom-
bay. With respect to Zanzibar, the evidence is, of course,
not so satisfactory, becallSe of the difficulty of testing the
accuracy of the statements ; but the witness who gave the
information was a man of respectable position as a merchanb,
and he was confirmed by the Mukhi generally in his state-
ment of the custom, and in particular as to one of the
instances cited by him. On the whole, looking at the close
connection between the Khoj.is of Bombay and those at
Zanzibar, I do not think I sbowd be justified in disregarding
that evidence.
.AJJ to the quality of the evidence generally, it is no doubt
trne that many of the witnesses are such as not to be entitled
to much weight in a question like this, which, as admitted
by the witness Jairaz Pirbhai, has the ruling principal
members of the community enlisted on one side. At the
same time, there a.re i:xll\ny witnesses of a most respectable
position, who, it may fairly be presumed, would not lend
themselves to stating the custom differently from what they
believed it to be, and amongst them I would refer more
especially to Ja.iraz Pirbhai. Again, if we tum to the
(11) 3 Mad. H. C. R. 75; see p. 77. (o) 1 Thib, Sys. de P. R. 15.
Digitized by Google
1875. evidence in support of the widow's claim, it consists ex-

H1u•'1 elusively of . her own relations, and the support which that
oo:~·1 evidence receives from the case of Va.Un Alvaini in 1866, in
AND A..MOTH:&a which letters of administration were granted to the wi.dow
by the Registrar after the mother had been cited. No

evidence, it is true, was given by the other side to explain
why the mother consented to this being done, and the
widow is certainly entitled to the benefit of it. It mnyJ
however, perhaps be explained on the supposition that the
mother and widow were living together in amity, and that
it was a matter of indifference to whom the administration
was granted. In any case, it ought not to be allowed to out-
weigh the rest of the evidence, which, I think, satisractorily
establishes that the leading members as well as the great
majority of the community look upon the custom as alleged
by the mother, to the extent, at least, of giving her the right
to the management of the property in preference to the
widow, as well established; and that the Jamats, which are
the governing bodies of the community in all matters relat-
ing to the caste, regard the custom, as alleged, as the custom
of the caste, and act upon it in all cases referred to them by
the parties interested.
Lastly, if we bear in mirid the circumstance that Khoj,

widows can remarry, and that, as a matter of fact, it is very
common for them to do so, and that on their doing so, as
admitted by all the witnesses, they cease to have any right;
or interest to or in the properties of their deceased husbands,
it is far from unlikely that the mother, who, as the evidence
shows, is treated with unusual respect in the Khoja com-
munity, and would generally be past the age at which women
marry in eastern countries, would gradually come to bl' re-
garded as the safer person to be entrusted with the manage-
ment of the property.
Under these circumstances I think I ought to declare the

custom set up by Gorb!i to be proved, so far and to that
extent only as it confers the superior right on the mother
(being n widow) to the pos::;c:ssion and management of the
Digitized by Google
•
BOMBAY HIGH COURT REPORTS·: 819
property in preference to the widow. The letters of adminis- 1875.

tra.tion must, therefore, issue to the applicant Gorbai. Hirbe.i H1au'1
and Gorbai must both have their costs out of the estate, Go~A'I
considering the importance and unsettled character of the AND iliOTHU
question in dispute between them. Rahimatbh&i and the
other caveators must pay their own costs.
An order was accordinglymade on 23rd June 1874, refus-
ing the application of Hirbai, allowing the caveat of Gorbai,
and dismissing the caveats of the other caveators, and allow-
ing the application of Gorbai for letters of administration.
Against this order Hirbai appealed, and the appeal was
heard on the 18th, 19th, 25th of June, and 2nd of July
1875, by WESTROPP, C.J., and GREEN, J.
Pureell and Lang for the appellant.
Scoble (Advocate General), Latltam, and ·P1'.got for the
respondent Gorbai.
There was not any appearance for the other respondents,
Fazalbhai Kasambhai and J :iffarbhai Gulam Husen.
WEST.ROPP, C.J., in delivering judgment, said :-Though
this case occupied the Court below for twenty-four sitting
days and this Court for four days we think we may deliver
our decision at once, as the learned Judge in the Court below
bas afforded to us such valuable assistance by his elaborate
discussion of the authQ.rities and evidence on the point be-
fore us, viz., whether the widowed mother of an intestate
Khoja, dying without male issue, is entitled by the custom
of that community to letters of administration to the estate
of her deceased son in preference to his widow, on which
question Sir Charles Sargent seems to have availed himself
of every available source of information. No doubt, among
Muhammadans proper or Hindus the evidence adduced in this
case would not be sufficient to establish an ancient and in-
variable custom different from their ordinary law. In con-
sidering a question of custom in a case among Muham-
madans proper or Hindus we have always followed the
doctrine la.id down by the Privy Council, thut the party
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•
320 BOJIBAY 81GB COC'Jt1: llPORTS.
I Si5.
seeking to establish a custom different from the ordinary
- - - - law
HUUl,l'l of his community, must prove thai the custom is an-
"· cient
GoB.BA.11 and invariable, and considered to be legally binding.
UDUClrllD
But; in this case we are dealing, not with Muhammadans
proper or Hindus, but with a caste converted Crom the Hindu
religion about four hundred y ~ ago by Pir Sadrdin, a
Dai or missionary of the Imam of the lsmailis, and their
religion has, since the date of their conversion, been
Muhammadan of the Shi.a division and Ima.mi lsmaili form.
In comparatively recent times a schism has occurred
amongst them in Bombay. A numerical minority, pro-
fessed to belong to the Snni division of .Muhammadans,
insisted that the religion of the Khojas at large was Suni,
that the public property of that community ought to be
applied to Snni purposes, and sought to cast off all allegiance
to H. H. Aga Khan as Imam of the Shi.a lmami ls-
mailis. However in a suit brought by some of the innovat-
ing party with those objects (Daya Muhammad a•id othera
v. H~ H. .Aga Khan a.nd othera) (p), the hearing of which
occupied twenty-four days in A.D. 1866, Sir Joseph Arnould
held u that the Khojas never were Sunis, but that from
the beginning they have been, and (with the exception of
the relators and plaintiffs, and their followers in Bombay)
still are Shias of the Imami lsmaili persuasion.''
In matters matrimonial it is not denied that the Khojas
are regulated by Muhammadan law. On that footing was
the decision in Pirbhai'a case (q), which, so far as we know,
has never been questioned. Amongst ordinary Muhamma-
dans marriages are performed by the Kazi or bis naibs or de-
puties (I Bom. H. C. Rep. 236, and Appendix XV III., XXI.,
XXVIIL). The marriages of all Khojas in Bombay used
to be performed by him until the schism. That fact appear- ·
ed in Daya Muhammad v. H. H. Aga Khan above mention-
ed, and In the goods of Mulbal (r), in the notes of Couch,
C. J., which I have examined, but not in the published report.
Since the schism, however, those Khojas, who regard .Aga
p) See poet p. 323. (q) 8 Bom H. C Rep. 95 Cr. Ca.
(r) 2 Bom. H. C. Rep. 'r/6.
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BODAY HIGH COURT Rli:PORT8, 321
KhG.n as their head, have had their mal'l'iages performed by 1876,
him, while the others continue to employ the Kazi as before. HIRu'1
It bas here been generally assumed that, in the absence of oo:~...•1
proof of custom to the contrary, the law of succession and .UD ANOTam
inheritance amongst the Khojns is the law of their origin,
viz., Hindu. This has generally been assumed to be the
rule, and was so expressiy laid down, in a dictum by
Saussc, C.J., in the case of Gangbai v. TMvar Mulla (s).
Perry, C. J., in HfrbcH v. Sonabhai (t) made a decision in con-
formity with Hindu law, but did not decide that Hindu law
is to be generally followed; and it is to be noticed that the
case before him arose in the same family as that the members
of which were parties to the suit in which occurred the dictum
of Sausse, C.J., to which we have just referred. In Mulbai'a
case (u) Couch, C.J., did not decide on the principles of Hindu
law but on the evidence in the case. The applicant there
sought to come in on a footing of custom, and the custom
proved was contrary to the one set up. AB a matter of fact, the
custom proved was in accordance with Hindu law. Recently,
Shivji Hasan& v. Datu Mavji (v), a special appeal from
Tbanah heard by my brother West and myself, was decided
by us in accordance with Hindu law ; because there was
neither allegation nor proof that there was any custom gov~
erning the matters there in issue, contrary to Hindu law.
In this state of the authorities we think that our brother
Sargent was right in placing the burden of proof on the mother
and the distant male relations of the deceased intestate, as
they were setting up customs not in conformity with Hindu
law, whereas the widow's claim was complettily consonant
with Hindu law.
It is, however, evident, from what has been said, that the
Khojas are not as firmly bound in matters of succession and
inheritaccA by the Hindu law as Muhammadans proper are
by the Muhammadan law, or Hindus by the Hindu law, and
henco it is that it would not be reasonable to require such
(,) I Rom. H. C. Rep. 71. (t) Perry O. C. 110.
(Ii) 2 Bolll. H. C. Rep. 276, (v) Suprci, p. 281.
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322 BOMBAY IIJGD COURT REPORTS.
1875. stringent proof of a custoru of inheritance amongst them

H1a,1u.'1 differing from ordinary Hindu law, as from a Hindu.
v.
GoBB.~'1
~I> ANOTHBR
Now it is manifest that such a state of the law must greatly
encourage litigation,and we cannot help thinking that it would
be most desirable that the Government should take steps, as
was done in the case of the Parsis, to ascertain the views
of the majority of the community on the subject of succes-
sion, and should then pass an enactment, giving effect to
those views. Unanimity, of course, could not be expected,
but the rules which were found generally to prevail might
be made law ; and though the religious difference existing
among members of the Khoj, · caste might create some
difficulty, it would not, we think, be insuperable.
As to the evidence in this case, we think with the learned
Judge in the Court below that it greatly preponderates in
favour of the mother's claim, though, no doubt, there is a
considerable conflict ; and we also think that he rightly
placed great reliance on the evidence of Jairaz Pirbhai.
Though the evidence at large is not such as in the case of
Mul1ammadans proper or Hindus would suffice to establish
an ancient and invariable custom, we think we must hold
that it is sufficient to establish a custom in a community, ·
such as this, placed midway between Muhammadans and
· Hindus. We think that, under such circumstances, the
Court ought to act upon satisfactory proof that the custom
has existed for a considerable time, and has been generally
accepted by the great majority of the Khoja community.
All costs must come out of the estate.
GRnN, J. :-I concur, and would only add that the fact
that all the cases decided on this point by the Jamat, or
public authority in the community, were decided in favour
of the mother, seems not only to support tho view which we
have taken of this case, but _also, inasmuch as the estates in
all those cases were small, to disprove the assertion that the
decisions of the Ja11iat were procured by money or influence.
Order affinned.
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BOKBAY mon COURT REPORTS. 323
NoU.-The following is a report or the .Agd KM• ca,e in which judg-

ment wudelivered by Arnould., J . ,on 12th November 1866, referred to in
both the foregoing judgmente of the lower and appellate Courts.-Ed.
TIDI ADVOCA.TB GBNBRAL ez relationt DAYA' MUHAMMAD, } 1866

April.
, )[11JliJO(Al) SAYA', PI'R MUHilUtAD KA's.u1BHA'1, and Plaimiffe.
F.a.'ZALBRA'I Guu.'M Husu ... ... . ..
tl.
M:~rsHusEN H-~-SENI (o~rwiae ~led A~~· KB.a.'~~ } Difendant,,
J~iow,-RIJ.l,efor tk regulation qf tk rights of di8Ment partitR in

a community dutinpis/ltd by aoJM rdigious pro/euion-Sunis-Shiaa-
Shia lmdmi lnnd.ilia-.Agd KMn-Klwjaa-lnjunction.
In a suit by certain members·of the Khoja community in Bombay for an
acoount of all property belonging to, or held in trust for the community
come to the hands of the treasurer and accountant of the community; for a
declaration that the treasurer and aocount~t had ceased to be such officers
of the community ; for an order directing the treasurer and accountant to
deliver all the property or the community in their handa ; for a declaration
that the property of the community was held and ought to be applied to and
for the original charitable, religious, and public uses or trusts to or for
which they were dedicated and to none other, for the sole benefit of the
X:hoja sect and none other; and that no pel'80n not being or having ceased
to be a member of the same, and in particular no pel'80n professing Sbia
opinions in matters of religiun, waa entitled to any share or interest therein ;
fora echeme to carry such declaration into effect ; and for an injunction re-
straining one of the defendants from interferinginthe management of the
property and affairs of the Khoja community or in the election and appoint-
ment of officers, from excommunicating any members of the community,
from celebrating marriages, and from demanding or receiving any offering :
He"fd that the Coun had jurisdiction to entertain the suit.•
When the Court, in exercise of its charitable jurisdiction, ia called upon
to adjudicate between oon6.icting claims of dissident parties in a community
distinguished by some. religious profeesion, the rights of the litigants 'trill
be regulated by referenoe to the religious tenets held by the oommunity in
ita origin, and a minority holding those tenets will prevail against a majorit,
which haa receded from them.
History of the sects of Sunis, Shiu, and Shi! Imami Ismailia.
History of Aga Khan.
History of the Khojas and their relations with the hereditary Imam or the
Ismail is.
Relations of Aga Khan with the Jamat of the Khoj'8 of Bomb.y.
• See Tiu Ad1>0CJ11tt amm.&I ., . Yincffldtl& ..Ct"'4nlfll, l Bom. B. O. B.p• .A.ppx. p. lz.
B 622-s
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324 BOKBAY 111GB COURT RBPORTS.
1866. The tenet• of Muhammadanism to which the flratKboja\ewereconverted

were tboee of the ~ !Jumi Iamaili &ect.
THJ1 A»vo-
c~x;::!:L In order to enjoy the full privileges of membership in the; Kboji communi.
D.+. TA· ty, a person must be one of that seot whose ancestors were originally Hindus,
lluBAMJdAD which was converted to, and bas throughout abided in the faith of, the ShilL
AND 0~ERS ImAmi Ismllilis, and which has always been and still is bound by tiee of
Muru1U1AD spiritual allegiance to the hereditary !mama of the Iemailis.
HUSJ:N
Husi."NI There is no public property impressed with a trust, either express or
.ii» OT'BJUtl. implied, for the benefit of the whole Khoja oommunity.
Aga Khan, as the spiritual bead oftbe Kbojas, is entitled to exercise a

potential voice in det.ermining who, on religious grounds, aball or shall not
remain members of the Khoja oommunity.
THIS was a suit on the Equity side of the late Supreme Court, instituted
by an information and bill, filed by the relators and plaintiffe, repreeent-
ing a minority of the Kboja community in Bombay, against the defendant.,
representing a majority of that community. The prayer of the bill sought
that anaocount might be taken of all property belonging to, or held in trust for
the Khoja. oommunity of Bombay which had come to the bands of two of the
defendanta, as .Muklu and Kamaria (treasurer and accountant) of the said
community; that those two defendants might be declared to have ceased to
be such .Mul:hi and Kamaria sinoe 8th November 1861, and might be or-
dered to deliver all the property of the community in their posaesaion to
each persons as the Court might direct. The 6th clause or the prayer, which
was the most important, and raised the question on the decision of which
the result of the ,nit virtually depended, was in _the following terms:
- " That it may be declared that the said trust premises are holden and
ought to be applied to and for the original charitable, religious, and p11blic
usee and trusts to or for which the same were dedicated and intended so to
be, and to none other ; and to and for the sole benefit of the K hoja eect and
none other; and that no person not being a member,or having ceased to be
a member of the same, and in particular no person professing Sbia opinions
in matters of religion and religious disoipli11e, is entitled unto. or ought to
have,any share or interest therein, or any voice in the management thereof."
The bill then went on to pray that, if necessary, a scheme might be settled
for carrying into effect the above declaration, and also for the periodical
and regular election, from time to time, of the Mul:hi8 and Kama.ruu of the
community, and generally for the security and management of the property
of the community,and concluded with a prayer for an injunction reatraining
the first defendant, Aga Khan,from interfering in the management of the trust
property and affairs of the Khoja oommunity,or in the election and appoint-
ment of N,ikhi and KamMia, from excommunicating any Khojas from the
said community, or depriving them of the various privileges appertaining·
to membership, from oelebrating marriages in the Jamat Klidnd., from de-
manding or l'f'ceiving from any Kboja. any oblation, cess, otferinga, &c., in
the alleged spiritual or temporal capacity of the first defendant.
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BOJIBAY man COURT REPORTS. 325
The ouo wu heard by Arnonld,J., for twenty-four days daring tho months 1866.
of April r.ndJuoe 1886, when the followiDg OOW118lappearedf0l' the several - - - - -
.... rii.o.a : - THB ADVO-
r-- CATBG&NUAL
Ftr!J!UflA for the .Advoca~ Generat a relatione
HAYA'
.An&teg. ~ •nd M ~ for the relatcn and plaintiffa. M:UB.AMJ(AD
/Jay'lq ( Advocate GenenJ} and HOIOIJl"d for the &rat defendant, Aga Kbin. AN o OTHBB8
NcOriUodi and Gr«:A for Al!Arakhia Su.mar ( the Kamaria) and 8CV8ll other Mua.noun "·
defendant& HusEN
Hu,unn
Lot,;., and H4y~ for AJJWJ Gangji. .lND OTUB8,
!'ayuw toc Dharramai Punjabhai.
Ou behalf of the relaters and plaintilm it was 001ltcnded that the Khojaa
were originally eonvorced to the Suni tenet.a of Muhammadan.ism, which bad
ever einoe beell the religion of the community,and that no one not profcse-
iag &ni teaeta ooald be held to be a Khoja. The defendants, though re-
preeeatiag a namerieal majority of the so-called Khoja sect, y~t, having
renoanced tile Soni tenets and adopted those of the Shias,oould not be held
t.o be Khojis, aud 'W'Ore, therefore, not entitled to the poaseaeion of the pro-
perty of tile eommU11ity or to interfere in any way in the managemenc or
the allaira of the ooamu11ity. The Khoja., have always observed and
still observe Uae Suni forms of ritual, and employ Suni priest& Aga Khan,
being the hereditary Imam or the Imuiilis, ill neoessrily a Shia, and,
theretore,neither he nor those who aclr.nowlodge him 1.18 their spiritual head
can claim to be oonaidered Khojils. The Shias are, in fact, not Muhammadans
at all The Khojas of Bombay ha.ve never recognized Aga Khan as their
spiritual head, but, on the contrary ,aineo 1829 have boon oonatanUy at vnrinnoo
with him. Even if the Suni eect of tbe Xhojas hnd changed thoir religion,
they ought not on that ground to be deprived of their intoroat in the caate
property, according to Act XX.L of 1850.
On behalf of the defendant.a it waa contended that this queetion, being a

caete diepute, wu not within the jurisdiction of the Court. It wa, further
urged that in matt.era of caat.e governance the opinion of the majority muat
prevail . At any rat.e,thecaet.o property muat be shown to have been impl'CSII·
ed with a trust before the party now in po-ion can be turned out. If
the religion to which the Khojae were originally converted, wns that of the
Sbias, the plaintiffs, being Sunie,'muat fail. If thcro ie no evidence what
the original religion was, the opinion of the majority must prevail, in
which case the plaintiffll, being a minority,fail. The main argnment,however,
was oddreesed to the historical queetion as to the tenets to which the Khojas
were originally converted. The converter was himeclf a Shia Imami Ismaili,
and the wholeKhoja community, with the exception of a fow families in Bom-
bay, still profess the tenets of that sect, and have always regarded, 88 their
head, Aga Khan and hie ancestors, the hereditary Imams of the Ismailis.
The use of the Suni ritual was a politic ooncession to avoid persecution,
quite in accordance with the doctrine of mental reservation, which is
allowed by the Shiaa but not by the Snnis, and in other religious practices
the Khojas confurw not to the Suui but to the Shia wnct.s. The Duavalar
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326 BOlCBAY HIGH COURT REPORTS.
1866. or religiou book of the Khoj'8, is evidently Shia in its origin, -ing thal
it UllUlllet u tnre a great J)Al't of the Hindu mythology, which would be
Tuz ADvo• allowed to a Sbia but not to a Sunimieaionary. The so-called property uf
CATE 0 ENBRAL
a relatioM the Khoj'8 corurillte, in. fact, of subecriptiona made by Khoja\a for the bend\
DAY A. of Aga Khan aa the acknowledged spiritual head of the community.
MUBAJOUl>
A.'I D 01'lllBI In the conne of the argument the following worb were extensiTely re-
"·
MUBAMJUD ferred to by couneel on both aidee:-Hamilton'11 Hedaya, the Koran, Korley'a
Huso Administration of Justice in India, Muir's Life of Mahomed, Sale'• Preli-
liUSENI minary Di11COnrse to the Koran, De Sacy's Expose de la Religion dea Dl'Ulld,
Al(]) OTlllCJII.
D'Herbelot's BibHotheque Orientale, Von Hammer', History of the Asaasill8,
Gibbon', Decline and Fall of the Boman Empire, Milman', Notes, Katab
al Waekidi, Burckhardt's Arabic ProTerbe, Dabiatan, Voyagee de Chanlin,
Burton's Pilgrimage to Mecca, Sir J. Malcolm's TranslaUone from the Persian
in Vol. I of the Transaction, of the Literary Society of Bombay, Desatir,
Daaavatar, Watson's History of Pel'llia, MosMn's Account of the Initiation of
Ismailis, the Lokrea, the Ginans, Nesi Khnt Tawarikh, Oclr.ley'e Hiat.ory
of the Saracens, Kitab al Sigaaet, Kinneir's Topographical History of Persia,
History of Sir C. Napier's Administration of Sind, Elphinstone's Hiatory
of India nnderthe Mahomedans, Akbar Shah's Divine Monotheism, Auto-
biography of the Emperor Baber. The following legal authorities were allo
referred to:-Rajah Deedar H~n 'f. Ranee Zulwor-tmuiasa (a), TM Khoja
and Menwn Sucwi,ion Ca«.1 (b), Shore v. AUorney Gt11eral ex :relatione
WU,on (c) ••
ARNOULD, J., in delivering jndgment, after reviewing the ecope of the prayer
of the bill aa staled above, continued as follows :-
The 5th clause of the prayer is the mOl!t important. It, in etiect, raises
that question, with which the evidence in this suit has been principally con·
cerned, as to what, in their origin, were the religious tenets of the Khoja
community, and what from the bt:ginning has been the nature of their re-
lations, spiritual or temporal, with the anceetnre of the DJ'8t defendant, Aga
Khan, who on bis part alleges that he is, and that his ancestors in a long
line of hereditary descent have succP.ssively been the Im,ms or spiritual
chiefs of the Shi' Im,mi Isntailis.
On the one hand the relat.ors and plaintiff's contend that Pir Sadrdin (whom
both sides admit to have originally conve-rted the Khojaa from !Hinduism to
aom(form of Muhammadanism) W88 a Suni; that the Khoj, community has ever
since ita first conversion ooen and now is Suni ; and that no persons calling
themselves Khojae who are not Sunis, are entitled to be coneidered mem hers
of the Khoja community, or to have any 8hare or interest in the public pro-
perty of the Khoja community or any voice in the management thereof.
On the other side it is maintained by the fit'llt defendant, and by the °'her
defendants, who are in the same interest with him, that 'Plr S.drdin was not
a Suni, but a Shia of the Imami Ismaili pel'lluasion; that he ,va.sa Dai, or mis-
sionary, of one of the direct lineal ancestors of th~ first defendant-the Imam
or spiritual chief for the tiwe then being of the Imallll lsmailis ; that from
(«) 2 Ai!QOre I • .A.. (41. (1,) Perry 0. C, 110. (t-) 9 CL and Pm. 316.
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l!OKBAY HIGH COURT REPORTS. 327
the time of the first convenion till now the Khoja\ community baa been and 1866.
still is, ( with the exception of the relatons and p!aintitf, and thOlle oompara-
tively few families among the Bombay Khoju who adhere to them,) of the 0 : :88/ ~ ~
Shia Imami hma\ili pemiaaion; that the saidcommunity(exceptuaforesaid) ez r.latwne
alwaya has been bound in close tiee ofspiritnal allegiance to the ancestors of D.t. YA.'
the first defendant, Aga\ Khan, the hereditary chiebl or lma\ma of the Isma\ilia ~oH!:
whom the Khoja community always have regarded and (except aa above)still "·
regard as their .M.ur,lwu or spiritual heads. M1ii:.::W
It ia to the isaue thua raised that the great m8811 of the voluminous evi• HusBNI
deuce taken in this suit waa directed. It was expres8ly admitted by Mr. AND OTllD8.
Anstey, the very learned and able leading counsel for the relators and plain-
ti11's, that the determination of this issue would, in efi'ect, dispoae of the whole
of the preeent suit.
'' If the Khojiu ", he said, "are prooed in their ori[Jin w haoe been Su.nil,
the relatora and plaintiffs muat ftlcceed : if they are proved to haoe been
originally Shiiu or Shut Imami lhmdilia, or in any way non·Sunia, then the
defendanta muat ,ueceed." An attempt, indeed, was subsequently made,
(after Mr. Anstey's retum to England had left the conduct of the case in
other hands,) to recede' from the position thus taken ; but, after full con-
eideration and for reaeona which I ahall have to state eL!ewhere, I am of
opinion that Mr. Anatey'a view wu the correct one, and that the decision of
the Court upon the issue thus raised, must substantially determine the rights
of the contending parties on this record.
The conclusion thus arrived at, bears upon a point which it is necessary to
dispose of at the outset, the effect, namely, either 88 a decree or u a prece•
dent, of a certain "Declaration of Rights" (set out at leugtb in the Srd para-
graph of the present information and billJ prononnced by Sir Erekine Perry
in the sittings of the late Supreme Court, after the third term of the year,
1851.
This " Declaration of Rights" was pronounced by Sir Erskine Perry in a
suit, commenced by information and bill on 21st February 1850, between
parties, some of whom (as notably the fint defendant) were the same parties,
and all of whom reRpectively repreacnted the same interests as those now repre.
aented by the relatons and plaintiffs on the one side, and the fint and other
principal defendants on the other side, in the present suit. The informa-
tion and bill, indeed, in the presenL suit nnrports to be, and may be taken 88
being, in continuation of the information and bill in the former suit.
All a dteree it is quite clear that thia expression of judicial opinion is not
binding: it was never drawn up as a df'cree, and, mc,reover, contains clear
internal evidence that it was never intended so to be. Sir Erskine Perry, in
the course of hie obaervationa, calla it, 811 it hu con-iuently been termed
above, a " Declaration of Rights", and expresaee a hope that the Khoj'8, by
ita aid, will "be able to elect n Mul:h.i and Kamaria and manage their cute
afl'ail'B among themselvce, without rendering any further application to the
Court neceiisary.''
.Aa a p r ~ I should, from the great learning and ability of Sir Erskine
Perry, and his kllown iamiliarit,1 with the hiatory and wiagea of the Native
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328 BOJIBAY HIGH COURT REPORTS.
1866. populations of India, be inclined to pay this expreuion of judicial opinion the
highest respect on all point.a in regard to which I oould treat it as an adjudi-
c.!!~;;1'~ cation upon precisely the same queatio1111 asthoae now before me, and pro-
e:c relation4 nounced upon the same or a very similar i,tate of proved facts.
Mu~!~ For in.stance, upon the question, whether this Court-that is, the ~te
AND oTHBBB Supreme Court on its Equity side-haa jurisdiction to entertain this Cll8e at
"· all, regardod as a matter of caste dispute arising in a Native community-
lluBA1DUD
HusKN upon this question which, n.s appears from his Declaration of Rights, wu ex-
HusBNI pre88ly raised before Sir Erskine Perry in argument, and decided by him in
AND O'l'll&B8, the afllrmative, I ahall follow his judgment u a binding precedent.
Upon other point.a affecting the relative rights of the Khoja community of
Bombay and of Aga Khan, the principal defendaat in that suit as in the
preeent suit, I ahould not feel bound by Sir Erskine Per,y's decision, unleae I
were certified, which, from the nature of the case I have not been and cannot
be (no authorized report of the evidence and proceedings in this former suit
being in existence), that his decision was arriv.id at upon the 83me or
substantially the 83me evidence as that which baa so exhaustively been
adduced before me during the protracted hearing of the present suit, which
occupied the Court for no lees than twenty-four days.
As to the great question in the present suit, that upon the determination
of which, ne already intimated, the decision of the controversy between these
• litigant.a, in my judgmeot, really turns-the question, namely, whether the
Khojls are, and from the first have been Suuis or non-Sunia, aubordinate to
the Imam of the Ismailia as their spiritual head or not so subordinate-this
doer. not appear to have been a question upon which Sir Enwoe Perry was
called upon to pronounce, it is one, certainly, upon which he has not pro-
nounced any adjudication whatever.
Sir Enkine Perry declared, upon the evidence before him, that certain
property and certain privileges belonged to the Khoja community, but he did
not decide, nor iB there anything to ahow he ever wa& called upon to decide,
to1"1t are !111! condition& offull membership in tk Khoja communit~whether
tho circumstance of being a non-Suni (aa the relatore and plaintiffii contend),
or of being a Suni and 88 BUch disowning spiritual allegiance to the hereditary
Imam 0 f the lemailis (as the first defendant and thoee who join with him
contend), is to exclude from caate membership in the Khoja community, and
to disentitle a man from sharing or having an iotereet in the public property
of-the community, or a voice in the management thereof.
The principal quCBtion, then, in the present suit, viz., aye or no, wero tho
Khojas, in their origin as a separate religious community, Sunis or non-Sunis
-Suni or Shia Imami Ismaili-bound or not bound by ties of spiritual
allegiance to the Imams of the Imami Iemailia-this question is quito
untouched by any previous judicid deciaion.
It is an historical question, to be decided by evidence as to matt.or of fact,
and is quite ne much within the competency of the Equity aide or the late
Supreme Court, in the exercise of what is technically called its charitable
juriadiction, ae any other question of fact arising out of the ar.ate di.tputea of
the Khoja community.
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BOKBAY IllOH COURT RBPOBTS. 329
The CUM in which aimilar queetione have been entertained by Engliah 1866.
Court., of Equity are well known, and were oopioualy referred to at the bar. T AD
They are that cl- of - of which the cue of Lady Hewley's charities, re• CA~ENE~
ported as Shore v. Wil.9on (d), is probably the moat familiar, and which all er rtlat~
proooed upon and illU!trate the now well-established principle that, when M DAYA'
. tn
Courta Of Eqwty, . t hO exerc111e
. Of th811'. 80-termed. Cha-'•-11. . ,_.,._..
TKUUI<: JUru,u11;,1on,
URAM.HAD
AND OTIIEBS
are called upon to adjudicate between the conflicting claims of diaeident partiee ti.
in communities held together or distinguished by some religious profeaaion or M°:~:!AD

denomination, the right.a of the litigant.a will be regulated by reference to what Husul
upon inquiry tum out to have been the religious tenete and opinions held by AND OTHBRS.
the community in ita origin or at .ita foundation,
A minority, howevornumerically email, holding faet by these opinions, will
be entitled to prevail againet a majority, however numerically large, which
can bo ehown to have receded from or renounoed them,
The Xhoja community is a community of 'this kind. The fact of a man
being a Khoja indicates that he holds by some form or other of religious
belief. What that form of religious belief was at the origin of the Xhojaa 118
a separate and distinct community, is, therefore, a queetion of fact which, if
disputed, must bo determined by evidence in a Court of Equity, when asked, in
the exerciee of what is called its charitable jurisdiction, to decide on the rela•
tive rights of the diaaident bodice within the same sect.
The rolaton and plaintiffs have, in eeveral paeeagee of their information

and bill, spoken of the Khojas as a ,ect: they notably do so in the 5th clause
of their prayer, in which they aeked for a declaration thatthe public property
of the community ought to be applied to the original "reli!]iOU8" trusts for
which they were originally dedicated, and for the sole benefit of the Kboja
" Bed," and that no person not boing a momber of such eeot, especially that no
person profotBing Shia opinions in matt.era of religion and rtligioua discipline,
ia entitled to o.ny share or intereet therein.
Before entering upon the direct investigation as to whether the Khojaa, in
their origin as a distinct and eeparate community, were Sunie or non-Sunia, it
will bo neceeeary, in order to a duo appreciation of the evidence, tint to oonai-
der the following questions : -
Firat- W7iat arc the SuNIS a, diltinct/rom the SRIA.'11 ?
Booondly-Who and what are the SHIA' IMA'MI ISMA'ILIII?
Thirdly-W/t0 and what is the first dcfe11dant, Ao A' KHA'II?
Fourthly-WI«> and wlial. (independtmtly of I.heir distinctive rcligiou~ belief)
are the KnOJA's, and what are and have been their rclatio118 with the
Jir,t defendant and his ancutor, 1
Fifthly- What have been tJ&e relatioll8 qf the fir,t defertdant, AoA' K1IA's,
tDith the particular community to which the rclators and plaintiffs bclo'llfl,
tliz., the Khoja community ofBombay 1
Pint, then, u to the Sunie and the Shiae, and their respective peculiarities
of religious opinion and practice.
(d) 9 Cl, and Pin. a
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330 BO.IIBAY HIGH COURT REPORTS.
1866. The Sunis are the orthodox lf1191n}mana, the people or the Sonna or TNIJi.
THE ADvo· tion. Their hum, or profBMion of faith, is the simple one-" There ia no God
C.&.TBG~RAL but God and Mahomet is the Apoetle of God." To this the Shiu add, "and
a relatione Ali, the companion of Mahomet, is the Vicar of God "
DAYA' '
lfUHilDUD
AND OTHEJIS
The e1evation of Ali to an almoet co-equal position with the A.poetle of God
v. himself, may be stated popularly 1111 the great distinctive t.enet of the Shiu.
MUHAM1lAD
HusEN Etymologically the word " Shiu" meaneeither " Separatiets" (which ii pro-
HUSENI bably the more correct derivation), or penone who are pure (Sbiae) from the
AND OTH:KB&
blood of those membere of the family of Ali who early fell victi.ma to the
hostility of the Suni Ommeiadee, the Caliphs of Dama.lClla.
It will conduoo to clearntl!ls if I here recall in rapid outline the history of

the earlieet divi.eione in Ialam.
The ApoaUe of God dled without appointing a " caliph " or 1uooeuor.
The caliph or succeasor of the Apostle of God (who had been both a tem.
poral and epiritual sovereign) wu to succeed him in both theee capacitiM; he
wu to be both '' Emir-al-MQmenin '' or " commander of the true belieYen"
i.nd alao "[md.fn...al-MoBkmin'' or "spiritual chief of the devout "-we1hould
•1 in our Latin or W estem phrue, " Supreme Pontiff 1111 well 1111 Imperator
or temporal ruler."
The general expectation of Islam had been that Ali, the first dieciple, the
beloved companion of the Apostle of God, the huehand of his only 1n"iving
child Fatima, would be the first caliph. It wu not so to be. The inlluenoe
of Ayeeba, the young and fayourite wife of Mabomet, a rancoroue enemy of
Fatima and of Ali, procured the election of her own father Abubekr ; to
A.bubekr 1ucooeded Omar, and to him Oeman; upon whose death, in the year
655 of our era, Ali'wu at last railed tothe caliphate. He wu not eYen then
unopposed ; aided by AyMha, Moawiyah, of the family of the Ommeiade1,
oonteeted the caliphate with him, and while the strife wae still doubtful, in the
year A .D. 660, Ali WIii slain by a Kharegite, or HUNUlman fanatic, in the mosque
of Ovfa, at that time the principal Mahomet&n city on the right or west bank
of the Euphratee,-it.aelf long einoe a ruin, at no great distance from the ruins
of Babylon.
Thie 11111181ination of A.Ii caueed a profound sensation in the llahometan
world. He wu, and deae"ed to be, deeply beloved, being clearly and beyond
oomparieon the moet heroic of that time fertile in heroee-a man brave and
wi11e, and msgnanimoue and juet, and 11elf-denying in a degree hardly ei:ooeded
by any character in history. He wu, beeidee, the hueband of the only and
beloved child of the Apoetle of God, and their two 1one Haaean and Hooeein
had been the darlings of their grand-father, who had publicly ginn them the
title of "the foremoat among the youth of paradise."
Of these eone, H..-n, the elder, a saint and a recluee, on the death of hie
father told his birthright of empire to Hoawiyah for a large annual revenue,
which during the remainder of hie life be expended in worb of charity and
religion at Hedina. In the year A,D, 669 thia devout and blamel- grand-10n
of tho Apoetle of God no poiloned by ono of hi1 wine, who had been bribed
Digitized by Google
BOVBA Y HIGH COURT REPORTS. 831
to that wickedne• by Yelld, the aon of Moawiyah and the 111COnd of the 1866.
Ommeiad Calipbe of Damucua.
THE Anvo-
There thua remained, 1111 head of the direct lineage of the Apostle of Ood CATE GENERAL
Hooeein, the younger aon of Fatima and Ali, a brave and noble man, in whoU: ex relatione
dwelt much of the apirit of hia father. Mu~~AD
Eleven yean after hia elder brotber'a murder, in the year 680 of our era, AND OTHil:B8
,-ielding to the repeated entreatiea of the cluef Moalem people of Irak A.rabi, 11 •
MUHAKMAD
(or Meaopotamia), who promiaed to meet him with a boat of armed eupportere HmuilN
H~in Ret forth from Medin& to Cufa to &886rt his right to the caliphate Hus:ux
againat the hated Ommei&dea. He crOllled. the deeert with only a feeble train- AND OTBKB8.
his wife, hie sister Fatima, two of hia sons, and a few armed honemen, when
on reaching Korbela, th n a desert station about a day's jou1·ney from the west
hank of the Euphr d in the near neighbourhood of Cufa, he found drawn
up to meet him a boat, not of retainers, but of fooe. The narrative of what
follows ia among the moat pathetic in .Il history. The noble eon of Ali and
Fatima, the favourite grand-eon of the Apostle of God, at\er deeds of valour
romantic even in an Arab of that age, fell pierced through and through with
the arron ancl javelins of the cowardly 1188&ilante who did not dare to come
within the aweep of hie arm. One of hie eone and & nephew bad already been
alain in hie eight. Hie other eon, hie wife, and his eieter were carried away
captive to Damaacus. They emote off the head of the son of Ali, and p~raded
it in triumph through the street.a of Cufa. Aa it paaaed along, the brutal
Obiedollah, the governor of the city, struck the mouth of ·th11 doad man with
hie staff. "Ah", cried an aged Mueaulman whom horror and just wrath made
bold, c, What a foul deed ia that?-on thoee lipa I have soon the lips of the
Apoetle of Ood."
Thi, tragic e-ient stirred the hoart of Islam to it.a very depth,, and even
now, at\er the lapse of nearly 1,200 years, it aeparatee, oe from the first it
aeparated, the Mahometan world into the two great and hoatile divieiona of the
Sunieand the Shi'8,-ofthe,Sunie, who bleae the memory and are zealous in
the cauae of A,-eeh& and Abubekr and Omar and Oaman-and of the Shiu,
who execrate the memory of the three 1lrat caliphs, and, hardly in a Ieee degree,
that of A,-eeh& heraelf; who by dagreca have como to regard Ali aa eomething
more than mortal-aa not only the Vicar, but in eome mystic eenee an !near.
nation of God; who venerate Fatima aa the first among women; and yearly
oelebrate the martyrdom of Hooaein, not only with the outward eigne but with
the inward i:1'1WtY of lamentation and mourning and woe.
It was on the tenth day of the month Mobarram (which happened to coincide
with the 9th of October of the year 680 of our ora) that Hooaein fell martyred
on the aanda of Kerbela. The .M&homotan year being lunar, and ours solar,
the tenth day of tho Moh&rram occurs at varioua periods of our calendar ;
but, whenever it comes round, in all part.a of Asia where Shiu are to be
found, it ie obaerved &a a day of sorrow and of tears and of beating of
the breast.a in grief.
In Persil\-which (with a brief exception under Nadir Sha from A.D. 1736 to
1747) ha&, ever since the I\CCEl8Sioo of the Saffevi Jyna11ty at the commence-
ment of the 16th ccutury of our era, been the gr,at Shii ewpire, iwd whose
B t.i22-t
Digitized by Google
33!
1866, poptt?a\ion hu C01111eq11enlly been able, without dread tiL Sani pe,-.
cution, to indulge freely in the exprNSion of it.a lofll ad IOl'10W for Uw ..r•
Tn .ADvo• . ·-L L- • b
C!Ml'B0ttNERAL tym IOJI o( Ali and Fat1w.-t.... oe,e ration o
. f th ~oh .
em arram • a na
tio-1
a relatioste eeremuny of mourning, ooaducted in tl&e capital of the BhUn-Sha (killg of
DAY A' kingll) with a IIOleDID megnifioenoe tllat, with all it.a pomp, cauoot deaden, or
IIVBAJl:IIA'D • _....._ '-'-b _. d b
.aNJ> orBim& even tone down, the hysterical ptu1110n w~w. w..... e..en ••rong 1111 nYe
11 men liBt,eo to the oft-recited story o( the grw. martyrdom <- Claanliie.
JlvHauouD PoUd, Morie!', and ot/&er l r ~ in Pemo). hi India, where the Shiu baYe
VSB!C
HvSZNJ lilway1 been comparatinly few and the Sums many and powerful, the
..._ l1rBKa Hoharram ls celebrated, by the Sonia with riot and ill-managed merri•
ment. wi$b n1leld je.te, and the ooane antice of mountebaoka dreaeed up iu
th.i ekine of wild beast, ; the Sbiaa, 011 ·the oilier h1111d, a.ssem'ble eadly in
their houBe8, or their Im6mbarM, where they lwten with leant and loud il0b-
bing1 t.o the pathetic story ; or, if they join in the procession at all, aud are
aot interfered with by the regulations of the J>olice (as hH laiterly been the
eaee in Bombay), they lead along, mourning and beating tlleir bl'e8Bt. 1111 they
So, a riderless white hOl'lle, representing that from which H06l8ein, parched
with th~ diemounted to take his Jut cup of water at haienl door, whm
the remoneleu and accursed Shamer ahot through hie lipe with 1111 arrvw u
•• drank, mud mingled hie dying blood with the dra•ght (e).
The ueighbonrhood of Kerbela is to the Sai'8 wu\ the Mighllourlux>d
was t.o ariy Chrme:odom.
of JM'Ull&lem .
Near Nijuf, a day's joarney from the west banl of the Euphrates and
about 120 miles aouth•weet of Bagdad, rises .Me&hwl .dZ., the superb ma'OIIO-
leum of the huabaud or Fatima, the companion Ad ihe eon-in-law of the
Apostle ol God,
About aoother day's jolJl'lley to tbe north-west of Meahed Ali, sb11 oo
the same or western bank oC the great river, &t Kerbela, now a plaee of
e.>nsiderable size and importance, ie Mea/Jed Hooeein, the holy sepulchre al
Booeein, the " Shehad " or martyr.
These tombs (thoogb standing in the lerrit.ories c,f the Soni Turks) haTe
from time w time been adorned with the utmost magnifioence by the Sbii
IIO't'ereigns ol Persia, anrl they are constantly attended 1)1 a large body or
8yuds (deaeendants of Ali), whOll8 services are largdy rewuded 1)1 the piow,
l>tmefamon• of the faitltful
From all parts of Asia and at all periods or the year a coostsnt abeam of
~hiA pilgrims ftowa towards theee holy tombs. Nor is it the Jiving only
who crowd there : the fondest wish of wealthy and pioua Shiaa at the ap,
proR.Ch of death, is to be buried in the sacred dust that snnounds the tombs
of Ali or of Hoosein ; and from the river-bank long strings of camels may be
Hen traveraing the sands towards the holy places laden with the coffins of
,he de't'out vot.ariee. who are th1111 making their last pilgrimage to Nijllf or
to Kerbel&.
The aacred dust of KerbeTa is made into monids (called in India Noltura,
from their resemblance in shape and size to pieces of coined money), and into
(•) Ockley·1 Riot. of the S a ~ Dy-y ol the Ommeiades. Yeoid l, GIW>oll'• lledl•
81\d 1'1111 orn,e baplre a.. 60, .
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BO•BAY BIOD COURT Rll'OltTS. 333
lllri11g1 or large heacle. Wheaever the Shi' praye, which he does three 1866.
limes a clay, (at aanriae, noon, nnaet,) no\ live timee a day, u theSWW1 do, TH A
• • II PYO-
•e II careful to put lua mohur, or mould of the claet of Kerbel.a, on the OATB0BNBR.&I,
groand, 10 that it may meet hi. foreh-1 in the ac& of proatrati<>n; a.nd, e:r rd<uione
when la prayer lle lll,llle& the name of God, he touchee one of \he beads M DAYA'
UJIAIOUD
luhioned out of the du\ of Kerbela that are awnng on his roaary. Ou. AND OTJIBBS
aore aolema occaaiou. each as at the new moons, the Ramuan, or the "·
Mtreill~
lloharram, the Shij la iJa \he habit of partaking of uortofsacramentaloup Rusu
c,oll8iating of wat.er miaglad with the daat of Kerbel a. Hus&NJ
In ahort, the whole rellgiona life of the Shia ie completely ateeped in a AND OTIIU8
earren\ of thoaght.e, belief,, traditions, and ohaervancee, which all haTe
&heir source ia All and Fatima, &Dd tlaeir two eons Huan and Hooaein-
the fuar venerated namea which with that of the Apoetle of God eompoee
tbe p o ~ (or Peatad) f)f tlie .Ala Sabtl, or Holy F11mily of IslAm.
Now all this the Banta regard • ao much deplorable aupentition. They
tell yon, indoed. they respect Ali III the son-in-law of the Apoat.le of God and
as a good man, the eolemn oareing of Ali, however, was continued long after
'11e IICOelllion to power of the Suni line of the A basaicle caliphs, the 1uc08ll80ra
of the Ommeiadea (!); bat to revere Ali u tlae Vicar ofOod, still mere u a11
Incarnation of God, is 11~terly abhorreni to all the religious feelings of a pious
and orthodu 81111i. To go on pilgrimage to Kerbel&, to bow the Corehea.d
in prayer on mo11lda made of the dusi of Kerbela, to drink, on the greas
llahomet.an anniveraariee, water mixed with the dust of Kerbelr.-theee are
all practicea wbiola a SuDi Kuuulm1111 abrinb from 118 eo many fcirbiddea
eupentitiou,
The Sanl praya fl.vea \imea a day ; the Shh\ only three times : the Suni
with his &rm1 folded acrosa his breast ; the Shia. with hia arms held straigat
down by hia side : the Shut venerates Ali and FatimlP. as something more
&ban mortal, and execrates the memory of Abubekr and 0111111' and Osman ;
the S~ni paya siacere reverence t11 these three caliphs, and introduces tboir
namea iato the Khootheh ( or Friday prayer), and into the dedicatory
lucrlptiona in his muequee: the Soni, in India at least, celebrates the
lloharram with ribllld buffoonery ; the Sltia wish heart fe_It lameatatione.
In a word, agreeing ia reverencing Mahomet u\he Apostle, and the Korn
u t.he word, of God, the Banis and Shi'8 agree in little else except hati11g
.-eh other with the 111mt cordial and bitter haU'ed. The quarrel of Ayeahe
ud Fatima 11 an undylng one, and Islam I.a 1till divided by the fierce enml-
tiea or the respeot.ive partisaas of the favourite wife and of \lae only daughter
of the Apollltle of God.
The nut qaeat.lota ie, Who are rheShid l111ami lmtdilia I Pormally the7 are
thoee among the Shiaa who hold Ismail, the a-ntl in deecent flom All, &o
have beeathe laa~ of the revealed Imams; and who also hold that. until
t.be final manifeetation or Ali who (u an Incarnation of God) ii to come be-
fore the end of all things to judge the world-the musoud o( the lmimat.e
or in Latin Idiom the office of Supreme Pontiff) ill rightfully held bJ' 1111
U) Olbboa"1 DecllDe and Pall of the Bo111aa Empire Oh. 6:.
Digitized by Google .... -- .

334 BOIIBAY HTaH COURT REPO'RTB.
1866. hereditary sncoeasion of 11nre11ealed Ima\ms, the lineal de9C8ndanta of AU

through Isma\iL
THK Aovo-
CATEG.EN~RAL The re11ealed Imams, acoording 'to the Iamailie, are theee Wfen :-1, Ali
u: D~~;?ne 2, H111111an. 3, Hooaein. 4, Zeinaledeen (this was that eon of Hoosein
MUHAMMAD who snrvived the Dl88811Cre of Ke,rbela). 5, Mohammed Bauker. 6, Jaffir
AND OTHEBS Seeduck. 7, Ismail (who died before hi.a father, and ia called, from hi1
tl.
MuHAMKAD father's name, llmail-bin-Jallir Seeduck).
HusEN
HusENI Under the dominion of the earlier Abassides (the caliphate of the Abu-
.UI> OTHBR.S. sides of Bagdad extended from A.I>. 760 to A.D. 1272), the Tama\ilis, like
all other opponents of the Suni or orthodox faith, were e:ii:poeed to severe
persecution. Their doctrine of the Ima.mate made them peculiarly obnox.
ioua. As already explained, every caliph, or successor of the Apostle of God,
held, as part of his sot'ercignty, the office of lmdm-ai..MiMlemin (Supreme
Pontiff' of the Devout); 110 that the doctrine of the lsma\ilis, in the eyes or
the Soni princes, wu not only here91 in religion, bta tre.aaon agai,wt tlu
State.
The result wu that, from the beginning, they weie compelled to teach
and apread their tenets secretly.
In all essentials the Ismailis were Shias, bat they held in addition certain
pocnliar tenets, such as this respecting the Ima\mate, which would appear
to have been first fonnulized into a regular system (with different aaccod.
ing degrees of initiation and stages of more or less esoteric doctrine) about
the beginning of the 10th century of oar era by the famous Abdallah-bin-!\lai-
mnn, who tanght first at Ahwae, in the south-weat of Persia, and afterwards
ai Salemieh in Syria (g). Abdallah-bin-Maimun, together with several tenetl
derived from the Magians or Zoroastrians, is said to have adopted from the
Hindu philosophy, and to have engrafted into the higher stages of the
Isinaili initiation, certain principles of pantheism which by doing away
with the notion of a pcrBOnal God and personal conscious immortality, are
easily represented as involving the doctrine of hum:m non-accountability
and even that of the moral indiffereocy of Mtion.-a reproach frequently
brought, bat apparently without good reason, against the more esoteric
teachings of the Iem:lili system,
Orie of the initiated disciples of Abdallab-bin-Maimum-himeelf a lineal

descendant from Iemail.(h), the 7th Imam-the Dai Abdolla-or Obeidollah,
about the middle of the 10th century of our era, laid in Africa the foonda.
tiona of what afterwards became the Fatimite Oalij,hal.e of Cairo, and which
laated till overthrown by the orthodox Suni Saladin (the clrlvalrous rival
in arms of Camr de Lion) about the year of Chri,t 1171.
This Fatimite Caliphate was a dynasty of Ismailia ; it was named
after Fatima\, the wife or Ali and eole daughter of the Apostle of God, from
(g) Von lhmmer'1 Bia. of the Aaualn", tranalated b:, Dr. Wood. lido. of 1836,
Lon,lon. p. :Ill,
(h) ld<m : '"' also De S.C1 Bzpoee de la Bellgloa d• DrUIN. Bdn. or 1118, Faria.
rng,ti,ed by Google
BOMBAY BIOH COURT REPORTS. 335
whom ita caliphs traced their descent through Obeidollah and Ism!il, the 1866.
7th lm!m.
TBB ADvo-
lo Cairo, under the dominion or the Fatimite Caliphs, the religious eye- C.ATBGENKRAL
tem of the Jsmaili8, with its secret lodges, its many stage11 of initiation, and u; n:~!i,one
ltuomewhat mystic ceremonies, waa matured and perfected. MuHAIIMAD
AND OTHKRII
It is not necessary to go into the details of these d~velopments. Von 17.
Hammer a "Hiat<wy of tAe ~uamn.," (translated, not with any great felicity, Mu JI.Alf MAD
by Dr. Wood) ; Silvestre de Sacy'a "Religion of the Druaea" ; the Dabiatan liUSl!N
HusENJ
and other oriental authorities cited at the bar, by the exhaustive industry .ANDoTHJme.
of Mr. Anstey on the one side and Mr. Howard on the other, supply ample
materials for a dilllertation on a subject of considerable interest, both his·
t.orical and theological, for whioJi, however, thie is not the place.
Two points, however, connect.ed with this part of the subject have sooh
an importani bearing on the main question at iaue in this case, that they
must bo noticed with some degree of attention.
These two points are,firat, the universal prevalenoe among the lsmailis of
the practice of " Tal:ia.h," or concealment of religions opinion; euondl11,
their method of eeeking to make converts by BSauming to a great extent
the religious standpoint of the person whom they desire t.o convert,
modcatly hinting a few doubts and difficnUiee, and then, by degrees, suggest-
ing, a.a the only possible solution of these, the peculiar tenets of their own
system.
As to thefir8t point, the word "Tal:ia.h" was of constant recurrence in
the evidence taken in this suit; it was rendered, not perhaps quite ade-
quately, • mental rcservat.ion' ;-its full meaning is something more than
that. It ia an Arab word, whose root-meaning is "fear or caution" : it1
full-applied meaning is "concealment of a man's own religiou1 opinione
and adoption of alien religious forms,''-either from a desire t.o avoid giving
offence or from dread of pel'IIOOntion.
The polite Orientals (the Suni Mnasulmane excepted) willingly BBCri6oe
some of their religious scruples, and conceal a portion of their.religioue zeal
rather than hurt the feelings of those opposed to them in religious matters.
This sort of religious comity is not absolutely confined to the East; even
Rritish Protestants of the laxer sort are, I believe, occaBionally known in
Catholic countries to raiao their hats, or otherwise show eome token of
outward respect, AS the more solemn procesaions of the Romish Church
pB88 by. This is•' Takiah," outward conformity, in order to avoid giving
offenco, or hurting the religious feelings of others.
Of the " Tal:iah" caused by the dread of insult or penecution, a familiar
and amusing instance may be found in the demeanonr of thoee Shi'8 who
make tho Hadj-i.e., go on pilgrimage to Mecca. In that centre of Suui
bigotry and intoleranco the Shia pilgrims out of " Tal:ia.h" abandon their cus-
tomary times and rorma of pl'llyer, praying five times a day with arms croued,
in8tead of throe timt'11 a day with arms held straight down to their eid89,
Captain Burton in hie nry interesting " Pilgrimage to Mecca"' deecribee with
conaiderable humour how the Shii pilgrim, even force themaelvM t.o pay out.
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336 BOIIBAY RIOB COURT RIPOBT8.
1866, wvd 111d mOtt reluotant hotDllp to the tombe of Abobekr, Omar, and Otman
THs A.Dvo- -the bitter foee of their venerated Ali, and the objecta or their own mOlt un-
OATSGPUAL compromiaing and religioua hat.red. Thi, ia " Taiiah ," adopted with the
a relatione 'View of avoiding penecutiou, iueult, or ill-oage for religion'• eake.
DAYA'
MuBAIIIIAD The peculiar teneta or the Itnil.ilil with regard to the Imamate, impoeecl
UD Ol'BDII upon them a peculiar l'MIOn for pl'IICtieing " Ta.nah" in all countriee within
Mu~AD the sway of the Som ca.liphe ; thie long-enforoed habit grew at lut into a
H usn eecoud nature, and the pniotioe or " TakiaA " became oniTenal among the
Husu1 IemAilil-the offtpring of penecotion and rear.
.UDOTBJWI.
The other peculiarity of the hmailie-tbat., namely, of -uming or admit-
ting the tl'Uth of the greater portion of .the roligioue tenet. of thON wbpm
they wished to convert to their owu-ia copioualy illuatrated by SilTeetre de
Bacy (t), citing from an IemAili work of authority, t.he Kitub-al·fiv/M6l, which
contains, among other things, illlt.ructiou for the preoeecliap of the Daw or
miaeionariee of the IemAilia.
If the Dai, or mileionary, hu a Shi! (not of the Imami Iamaili peraoui.on)
to deal with, he ia to repreeent himeelf (111 in thi1 cue he might do wit.h per-
fect truth) 111 a -1ou1 parti,an of all the Shia doctrine, He ia to dwell with
unction on the cruelty and injustice with which the Sunie treated Ali and hie eona
-on the martyrdom of Hooeein and the captiTity of hi, family. He ia to
abute the Suni oaliphe of both linee, the Ommeiadee and the Abueidee, and
then, ha'ring thua prepared the way, he ie to insinuate, 111 the n-.ry com.
pletion of the Shi! eyetem of faith, the more esoteric doctrinee of the Iemailie.
la it a Jew he hu to deal with P-be ia to speak diaparagingly of the Chrie-
tiane and the M'.ua,ulmane, to agree with hie intended convert in still looking
forward to a promieed M'.818iah, but by degreee to bring hie mind to the per-
snuion, that thie promiaed M-iah can be none other than Ali, the gred
)leseiah of the Itmaili ,yatem.
If it be a Cbrietian he hopes to bring over, he mutt expatiate on the obetU1&e7
of the Jew, and ignoranoe of the M1118Dlman1, must profese hie reTerence for
all the chief article& ot the Cbrietian creed, but gently hint that they are
symbolic, and point to a deeper meaning, to which the lsruaili eyatem alone
c:an supply the key ; he may 1nggeet that the Ohrietiane have eomewhat mie-
interpreted the doctrine of the Paraclete, that a Paraclete there ia, and thu .
it i1 to thil-tbe true Paraclete-that the !Ja.i, or miaeionary, would letd bia
enquiring friend.
It ia needle9 to pursue the18 illutration, at greater length.
Two point.a may be taken as concluainl7 eetabliehed with reprd to tbt
Im,ilia :-
1. That they habitually enjoined and carried out the practice of " fa.tiaA,"
i.t., concealment of their own peculiar TilWI in religion, and outward adop-
tion of religious forms not their own.
2. That their Dau, or miuionariee, were direot.ecJ; a, a general rule, to eet
about the work of making oonverte by aauming to a great extent the religioua
eland-point of thoee whom they wished to bring over to their own faith,
(1) Rcllgio11 dOI DrlUOII, Vol. I., IAtroductlon, pp, 1'8·16'.
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Both theee point, will be found to have an important bearing on tbe ap- 1866.
precrlation of the eTidence adduoed in tbie cue. -----
TBB ADVO•
A.nd now we muet notice a curioue paaage in history which connect, CATBGBNBRA.L
the principal defendant in thie cue, Aga Khan, with the " SMil:h el Jubal ', e:i: relat~
or "Old Man of tAe Mountain," or Marco Polo-with the Chiefa or (accord• M~::!uo
ing to Von Hammer) the hereditary Grand Mutere or the .A.IIIOHina of .lND OTBBRS
.A.lamut. Muu:;,MAD
After the ItmAili ey1tem had been elaboratel7 completed at Cairo under the Husu
Fatimite Caliphs, receiving there a eupentructnre of Egyptian hierophantilm Ht1BBNI
upon the baeie or Magian and Indian dogma, which it had derived from ite AND OTB&BI.
Pereian fouD41en, it had the fortune, a little after the middle of the 11th cen-
tury of our era-about the time tha, William the Norman wu winning the
battle of Hutings-to attmct the attontion of a very accomplished young
Persian of Arabian deBCCnt and of Shi&\ faith, who had alread1 given promiee
of a brilliant career.
Thie waa Hauan-bin-Saba, the eon of a learned Shi&\ doctor of the cit7 of
Bhai in Peraia.
Haeaan-bin-Saba had been carefully trained in all the learning of hie tiine,
hie great friend and fellow-etudent being Nizam-ul-Mulk, afterwards the
renowned minister of Togrul Beg and of Malek Shah, the two first of the 'foorki
or Seljukian Sultana of Irak, whoae aeate of empire were Nieabhur and Bhai
In his earl1 manhood llaNan-bin-Saba metwitb, and had been deeply impress•
ed by the teachings of a Dai, or mieeionary, of the Fatimite Iama\ilia. An ad·
venturoua life of action had weakened, but not effaced, the,e earlier impree-
aioDB when, being checked in hie career of ambition b1 the superior fortunee
of hie rival Nizam-ul-Malek, he resolved to repair to Egypt in order to be in-
atructed at the fountain-head in tbe more eaoterio dootrinee of the lemailia.
A three-yeors' residence in Cairo made him an adept and an enthuaiut in
the lemaili faitb, and hereturned te Pereia eager to propapte the teneta ho
had embraced.
Persia at that time was in the moet rigid bonds of Suni orthodoxy, tho
Shepherd Chiefs of Central Aeia (and auch in their origin were tbe Seljukian
Saltane of Irak) having always been among the moet devoted upholden of the
etniteet traditions of lalam,
Huaan-bin-Saba eoon found that be could only attempt openly to pro-
pagate his new creed at the imminent risk of hie,.J.ife. Be formed his plan. Part-
JY by force Md partly by fraud he poaeeesed himseU of the impregnable moun-
tain stronghold of Alamut (the Vulture,' neat) built on a commanding crag oa
the Elburz monntaina-the range that eeparate& from the rest of Peraia the
provinces that lie immediately to the aouth of the Caspian.
Here he eetabliahed himself in the year 1090 of our era juat 700 years, 11
Von Hammer is oarelul to inform ua, before the commencement of that other
great combination (aa he views it) against the eatabliahed order of society-the
Conlt.ituent Aaembly of revolutionary France.
Here, for 35 of the remaining yean of a life which waa protracted beyond
I.he age of 90, HNl&ll-bin-&k employed all the remarkable powe11 of hia
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338 BOKBAY RJOH COURT HPORTS.
1866. mind in organizing 'a ayatem of terror which hught with the dagger against
- - - - - the sword, and revenged pereecution by auauinalion. He and hie eucoeuora
T~S,ADvo· have the infamous renown of having introduced-that word into the vocabula·
OATAu&NDAL • fE I , lik
u: relatione nee o urope. t 18 • oly11nough, indeed, that the etymology insisted on by
DAYA' Silveetre do Bacy may be correct, and that the word by which the Iam,ilis
!u:~~ of AJamut and Hauiat were doaignated . in the Eastern languages wae
11• H<Ulmhin-a word derived from the use of the HaMW. (a preparation of
MURAIUIAD hemp, or bhang,) with which H&111&n-bin-Saba and hie eucceeeore subdued
liUllBN
Huas,n. the aoule, while they inffamed_tho enorgiee of the Fe,lawi, "the self.
A!ID oTUBB& ofl'11ring or devoted," whom they employed, to use the language of Dryden,
aa their " blind, unthinking instruments of death." Bo this a.a it may, the
word .Aaaauination ha.a long been naturalized in all the languagee of Europe.-
to signify the vilest eort of murder-mvder done to order.
I must resist the temptation of pUl'lluing in farther detail the story of the
Is~ilis of Alamnt, whose offshoot the ~ i n s of Maeeiat (a correspond-
ing rook.fortress on the mountain range north of Lebanon) were the terror
of Syria and Western Asia during the second Crusade. I take up the
thread of the narrative whore it becomes connected with the princip.u
defendant in this suit, Aga Khan, as it does in the person of Haaean-Ala•
Sikrihi-oe-Salam (or Bleased-be-his-name), shortened into Zakareaalam, the
lth in ancceaaion from Haaea.n-bin-Saba, of those whom Von Hammer
calla " the hereditary Grand llluwre of the ' Order of the Aasaasine of
Alamnt.'"
Tho founder himself, Hassan-bin-Saba (that is "of the lino of Saba")
thongh a fanatic Iamaili in religion, was not-as his family name 1hows-
an Ismaili by birth : ho was not a descendant, either lineal or collateral·
from lsmaili, the 7th 1~m, the son of Jallir Seedack.
Huaan-ala-Zakaresalani, OD the other hand, asserted for himself a direct
_lineal descent from Ismail, the 7th Im,m, through Nisar, a son of Y:ostansir
(one of the Fatimite Caliphs of Egypt.) who had been brougbt to Alamut in
the time of Hauan-bin-Saba, and whom Zakaroealam declared to have been
his progenitor.
Von Hammer, drawing exclusively, as he admita, from Soni aonrcos,

leavee this statement of paternity involved in groat doubt and GbflCllrity, which
ia oertainly not oleued up by the p111111ge extracted from thelOth book of the
Persian History, of which a translation was put in by the relators and plain•
tifti. The mystery that hangs about the story -ms in some degree to juatify
the expression of Witnoas No.-1, when ho said that he had oomo to doubt
the validity of Aga Khan's hereditary claims (from Ali and Ism,n through
the Fatimite Caliphs of Cairo) ever since he had found that ho traced hia
pedigree through this Zakarcsalam.
This is not the place, of oonne, for any attempt to clear up the obscurity
of an Asiatic pedigree (a task which even Gibbon was obliged to renounce
u hopolesa), bat it may be obee"ed in pasaing that the recorded follies of
this ZakareB&lam are snob aa to make it primd.fac~ not unlikely that be
might roally have beell a blQQd descendant flvm the Fatimite Caliphs Clf
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BOXBAY HIGU COURT REPORTS, 339
Egypt, among whom arc to be found, as notably in the case of Hakim• 1866.
Biamr-Allah, the Mad Measiah of the Drme9 of Lebanon, some of the most
fatuous and extravagant of all the Mussulman princes who have ever cJ.:xEG~~;~
ruled in any part of the East (j). a relaticme
DAYA 0
By one of his proceedings, Zakaresalam excited more horror among ortho- MUHAJIIMAD
dox Mnssulmans than had been called forth even by the organized system AND OTHERS
of 11888.Ssination established by the Chiefs of Alamnt. On the 17th day or v.
MUHAMMAD
Ramazan he caused a public pulpit to be raised in the Mosella, or place of HusKN
prayer at the base of the castle of Alamut, and thence proclaimed himself HusxNI
the Vioeregent of God, abolished all Moslem ordinances or poaitivo religion, AND OTHUS.
declared that that sacred day of tbe Muhamadan calendar shonld thenceforth
be celebrat.ed ns the Femt qf the Revelatio11 qf tlie. Imam, and that the people
should then and there (as, from the narrative, they appear to have done
without much scruple) eat the flesh of the swine and drink, even to
drunkenness, of the juice of'. the grape.
After a short reign of about four years this self-asserted, and certainly
worthy, dcscendsut of Hakim-Biamr-Allah was himself cut off'by the dagger,
and' the hereditary Grand-mastership of the Assassins of Alamut passed
through the hands of four eucceeaore, (all of whom, with one, probably
accidental, exception, arc recorded in the pedigree or Aga Khan), until
the year of Christ 1258, when Alamut fell to rise no more (it has ever since
been a heap of ruins) under the irresistible might of Holagou, one of the
grand-sons of the great Zinghis Khan (k). Althongh, by this utter overthrow,
in which men, women, and children were unsparingly put to the edge of the
swonl, the Assassins of Alamut celljled to be a terror to Asia, yet the race
of the Ismailis still survived in Persia, and the hereditary succession of their
,mrevealed Imams is traced in unbroken line down to Aga Khan, ihe first
defendant in this snit, in the pedigree already referred to. Of these names,
history knows nothing; one, indeed, Shah Islam Shah the 14th in the
aacendinp: line from Aga Khan, is currently mentioned by a tradition, very
prevalent in the Khoja caste, as the Imam of whom Pir Sadrdin, the converter
of the Khojae, was the missionary or Dai. It appears probable that from
the time the rulers of Persia became Shia, as they did from the establish-
ment of the Saft'cvi dynasty about the commencement of the 16t'!!. century
of our era, all active peraecntion of Ism6.ilis ceased. After the tronblous
times of the Aff'ghan invasion and of Nadir Shah, and during the period
preceding the rise of the present or Kajar dynasty, when tho Zend princes
'had the principal power in the south of Persia (say from A,D, 1750 to A,I>,
1786), we find that Abool Hassan, the grand-father of Ag6. Khan, was
governor of the very important city of Kerman.
About the year 1813 MACdonnell Kinner, as cited by Von Hammer (l),
notes in his " Topogmphical History of Persia" that in the district of the
(j) "The Fat.lmlt!ee," "nya Gibbon, "were eilher raah or pualllADlmom." "Decline and
Fall," Cb. 62. See s,1vestn, DeSacy'a Religion df8 Drnu..
(.I-) The Aslaaalns of MU11lat a.od ot.ber roclt·fortain Sytia were supre•ed b1 ~he Kam•
l11lt illllAns of Egypt about A.I>, 11180.
(II Hi•t. ortheAlll&6aiwl, pp, 210-211.
B 622-1'
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34,0 BOKBAY HIGH COURT RBPORTB,
1866. Penian highlands (or KuAisttJn), especially near the ruins of Alamut, are
- T-A- - - still to be found a remnant of the Ismailis who 90 by tJie raame of Hooseiail;
HJI DVO• I .. .
CATBGBNBRAt. be alao remarb that the amaihe of Persia recognize as
. the1r
. c h"1ef an
e.r. relatiom Imam " dwelling near Kekht" whose descent they de<lucc from Ismail,
DAYA.
M AHAIIIMA.D the son of Jaffir Seeduck, and that as this Imam, according to their doc-
• •
Al(D OTHEIUI trine, is an emanation from t'1e Deity, the Iama1lis, some of wllom are d ...
v. :persed as far a6 India, go on pilyrimage ''froin the banb of tM Ga»gta or

MunA11uun
HusEN
1::...1 .. -L•-· L" ._ ed" ,·
nc.tUB t-0 UU<Uln ,.,, ue:n ic -ion.
HusKNI These statements, read by the light which the evidence in this case
AND OOB&RS, throws upon them. are not without interest. The Hooe&inis, who still dwell
about the ruins of Alamut, are of the race who regard as iheir lma\m the firn
defendant in this suit, whose own proper name, as distioct from hie titular
designation, is" Mahomed Husaain HoOdtini." , The Imam of the "lamailia
dwelling near Kekht," at the time of Macdonnell Kinneir's stay iD Persia,
wu Sha Kbalilulla, the father of the first defendant. The rotaries who
·went oo pilgrimage from India to reeeive his benedictions, conBiMed mainly
of ~ Khoj6.s, who. as we shall SOOD see, bad for a loog period ,,t time hff•
in &be babii or making pilgrimages io what they called Dur!Amta, i.e., to
&he head-qnarl.en, or principal residence for the time being, of '1ieir Mtird«l,
or Spiritual Head, the Hereditary Imam of the .I amllis.
The queation JJ'ho is ...4ga Klid,i t has lhns already been partly anewered.
•• Mahomed Hussain Booseini, otherwise Aga Kbb," or, u he ia more
formally styled when addrell8tld or mentioned in offieial documenia by the
Bombay Government, "His Highness Ag, Khan, Mehelati," is the here-
ditary chief and unrevealed Imam or the lamailis-the present or living
holder of the MOBDud of the lm,mate-claiming delMlent i11 direct line from
Ali, the Vicar or God, though the 7th and (8CCOrding to the Ism£ili creed)
&he la.M of the Retieal«l Imama-lsm£ili, the 1011 of Jaftlr Seeduck.
Bia own peraonal history has been aomewhat adventnl'Ollll and romantic.
His gtand-fllther Abdul Ha.asan, aa already mentioned, was governor, under
the Zeod princes. of the important city of Kerman. Oli quitting that office,
Abdul Haasan went io reside in the districl of Mebelati, where the famil~
appear, io have long had considerable poseeasioos, aud whenoe Aga KhAQ
deriTes bis territorial title. Mehelati is betweenHamadan (the old Echatan•
of the Medes) and Koom, the latter a city about midway between IspahaJ\
and Tebemn, and important as t.he burial-place of more than one oF~
ShAs of the Saffevi dynasty (I.he "Sofis" of ShaktiSpeare) ; of Fatim6, elw\· ~
daughter of Imam Rcsa, the great saint of Persia ; And mote recent11 df·
Futteh Ali Sha, the 2nd io succession of the Ka.jar, or now niling, dynalt,,
who after a long rcigt:l extending from A,D, 1798 to A.D. 1834 lies l , ~
here in one of the 1D011t superb mausoleums that have ever DHD raised ·
even to a Moslem prince.
The father of Aga Khan, Shah Khalillula, having for a time taken up bia
abode at the city of Y ezd, the principal seat of the P,rsia (Uie remnant of
the Magians or Zoroaetria.na of ancient Persia), wu slain there, with eneral
of hia houae-hold, in the year of Chriet 1817, in the coune of one of
those tuwultulU')' brawls which are Dot 1111common among the lawle1•
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BOXBAY HIGH COURT R!POR'l'S. 34,I
mobe of the ill-polioed Fenrian cities. "The news of thill event," 1866.
11aya Mr. Wateon in hla recent History of Persia (m), 11 waa received with the - - - - - -
. THI!: ADVO•
greatest concern by the Shah, who dreaded lest be should beheld re11ponsi\,le by CATE GENERAL
tha dangerous sect of the l&miilia for the death of their sacred chief." Futteh ex rdatiolwi
Ali Shah accordingly cauaed severe puniahment to be inflicted on all the chief
~::~MX:
DAYA·
auailanta in thia murderous fray, and he conferred on the young Aga Khan
(the eucceuor of hia father in the lmamate) large possessions in addition v.
to thoee which had deacended on him through his anceators, the government MuHAIIIMAD
Hu~KN
of the entire district of Kocm and Mehelati, and the hand of one of hia H u8 En
daughters in marriage. AlfD OTBDII.
From thia period (aay 1818) till the year 1838 nothing more is recorded
of Ag& Khan. That (1838) WBB the year In which Mahomed Ali Shah,
the 3rd in 11ucoe.ion of the Khoj& dynasty (be reigned from 1834 to 1848),
retreated from t.he diaaatroUII siege of Herat so memorably defended by Eldred
Pottinger.
In that year Ag& Khan raised the standard of revolt and seiled the govem,
ment of Kerman, where hia grand.father had once presided, and where he
himself had numerous adherents.
Mr. Watson (n) states somewhat vaguely, ae the ,-on for this rising, that
the Ag& "thought the time had now come when he might aeeert with ad,
vantage the religious character of which he waa inheritor." The native Per-
sian historian ueigns what ill, perhaps, a more probable reason. Haclji Mil'IIII
Ahaai, who bad been the tutor of Mahomed Ali Shah, waa during the whole
reign of hie royal pupil (from 1834 to 1848) the prime minister of Persia.
A Persian of very low origin, formerly in the service of Ag4 Khan, had be,
come the chief favourite and minion of the all-powerful minister. Thie person,
through hie patron, had the impudence to demand in marriage for his son one
of the daughters of Ag& Khan-a grADd-J.augbter of the late Shah-in-Shah I
Thia, says the Persian historien, " waa felt by Aga Khan to be a great insult,"
and the request, though strongly pressed by the prime minister, waa iodignRntly
refused. Having thus made the moat powerful man in Persia his deadly ene-
-,,,;, Agil Kh&n probably felt that his beat chance of safety waa to aaaert him-
WU Jn - - eourse not uncommon with the great feudatoriee of dieorganis-
\ia Penta. Ha.king Kerman hie head-quarters. he appears to have kept up
tlll 8ght with various fortunes through the years 1838-39 and part of 1840.
·. a tlJe latter year, overpowered by numbers, he WU forced to take to flight
• • : ~ with diftlculty made hill eecape, attended by a few horsemen, through
· : . deeerta of Beluchlatan, to Bind, where be appears to have been
. · ~pltably received by the Talpur Ameers. In Sind he would, of coorse,
· • >Jlhd no money difflcultiea to contend with. The Khojas of that province
(numbering nearly 3,000 hollll68 or families) have always been among his
moet zealoua adherents, and from them and hie other Khojil devot.ees in
nrloua parts of India and the East, there can be no doubt, he reoeh·ed
ample sapplies. Thatextraordinal')'. levy the "Bnkkus "-which the witneu
No, 2' (the Aga's Kamaria or Colleotor General for all Sind) describes,
(m) Edn. ol 18118 London, Vol. 1 .. p. 192. M Hilt . orPcrala. p. S3l ..
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34! BOKBAY HJOB COURT REPORTS.
1866. u a payment by Khojas to their spiritual bead " <I a knth <I 'their tdtole
TH;-~ }J088emons·•-was probably last resort.ed to at thie period of emergency and
CATEGENERAL diatreas. "No order for such a levy," said this witnese, "baa been made
ex relatiom /or the laat twentg-,even year,, " an answer implying that it had been made
DAYA'
MUHAMMAD w=•,
··-- w hioh would be about the yean 1839·40.
AND 0Tllltll8
Muu:;.MAD Supplied with auch reaouroos, Aga Khan waa able, during his residence in
HusEN Sind, to raise and maintain a body of light horse, who, daring the latter
HusxNI stagea of the Afl'ghan war (in 1841 and . 1842) were of some service both to
AND OTHERS. General Nott in Candabar and also to General England in bis advance from
Sind to join Nott. For these servioca and for others which he was enab\ed
to render to Sir Cbarlce Napier in bis conquest of Sind in 1843-44, Aga
Khan received, and it seems still enjoys, a pension from the British
Government of lndia(o).
In 1846 Agi. Khan came to Bombay, whore, as appears from the evidence
of witness No. H and No. 18, he was received by the cordial homage
9( the whole Khoja population of this city and its neighbourhood. With
the exception of a certain period of absence at Calcutta in the years 1846-47
and 48 (OOCMioncd, it is said, by the remonstrances of Mahomed Ali Shah,
whose govcmment was uneasy at the preeenoe of the Ismaili chief in a port
of such ready access to Persia as Bombay)-with this exception Aga Khlln
has ever since made Bombay his principal place of residence-hie " Dur.
khana" or bend-quarters. His habit during this period has been occasion-
ally to preside a, the Jamdt Kl«t,,d, or council hall of the Bombay Khoju,
on the more sacred annivcrsariee of the Muhammadan calendar. At tho
.Moharram he attends there with some state to hear the solemn recitation, by
Shia Moolas, or the legend of the Great Mattyrdom. On that occasion, at
the Ramazan, at tho new moons, and on other stated days, he leads the
Nimmaz, or daily prayer, in the Jamdt K"4nd, and also presides over the
distribution of water mixed with the holy dust of Kerbola. Every week on
Saturday (when in Bombay) he holds a clarlxir (levce) in the Jamdt Kltd11d.
at about 1 or 8 o'clock in the evening, when all the members of the Khoja
community who please may attend and have the honour of kiBBing hie hand.
The above, taken from the evidence of his very intelligent private IK'crctary, ·
Karrim Khan, appear to be the principal public and religious duties perform-·
cd by the Aga in Bombay.
His yearly income, derived from his votaries in many various and somo
very n,motc parts of Asia, is said, by the same witncss, to avcr11gc a net
aum equal to about £10,000 sterling of our money. Of this considerable
income the greater portion is spent by the Aga in horse-racing-a pursuit of
which in Bombay he is, and for some time has been, one of the principal
patrons.
(n) Seo Major Rawllneon'a lt'tter to Mr. YRddoclr, 6th Nmrmber 11142 ; Parliament.ary
papeno rt"latiug to n,illlary opt•r ..t1011s In Alfghuni•tan, 1@4:1 ; Hlr W. Naplcr"1 Hh,t. of
Sir c. Na1>1t:r·• Admlnt.tral.iou of 6dnde, Knd. o( 18:11, Loudon.
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BOXJ3AY HIGH COURT RIPORTS, 343
The ne~t queation is, Wlio 11nd what are the Klwjd8, and who.t ho.11t bem 1866.
tieir relation& with the her,,ditary Imam, of tu 1117114ilia, tk cmcutora of A9d - TA - -
HE DVO•
Klut,a 1 CATXGENERAL
e:i: rdatio11e
From the evidence adduced in this case, the more probable conclusion, DAYA'
I think, ia that the Khojas were originally Hindus of the trading class, MuuAMMAD
inhabiting the villages and towns of Upper Sind. Their language is AND OTll.11:RS
Sindi or Cutchee-a cognate dialect, and such ancient religious wqrks as MUHAMMAD "·
they possess are written in the Sindi language and character. Sind, an HlT::!EN
lilTSENI
early Mahometan conquest (p), has long had a large Mahometan population,
AN 1> OTB.BBS.
but a considerable portion both of the retail and wholesale business of the
country has always remained in the hands of the Hindus. The position
and circumstances of these remote and isolated Hindu traders were mani-
festly such as to favour their conversion to some form or other of Mahome-
tanism.
That they were so converted by Pir Sadrdin about 400 years ago, is ad-
mitted by both the oontending parties in the Khoja community. It is also
agreed that the tomb of this Pir (or saint) is at Ootch, a town of about;
l,800 houses in the Native State of Bhawulporc, on the left bank of the
Punjnund-the channel through which the collective waters of the five
rivers of the Punjab flow into the Indus-and about 40 miles above ita
point of junction with the latter river. Here the agreement ends; accord-
ing to the traditions of tho great body of the Khoja community, P!r Sadrdin
came from Khoraaan and was an Ismaili Dai, or missionary, sent by Shah
Islam, one of the ancestors of Aga Khan, and the form of Mahometanism
which ho taught his converts was the Shia lmami Ismaili faith. According
to the rclatoJ'S and plaintiffs, and those of the Khoji\ community of Bombay
who aide with them, P{r Sadrdin was a Soni, whose place of residence was
at Multan, and who converted the first Khojaa to Soni Mahometanism.
The term " Khoja " means both "the honourable or worshipful per-
eon " and " the disciple. " Its full meaning, as applied to the community
converted by Plr Sadrdin, may, perhaps, fairly be taken to amount to this,
" the h<>1iourabk or worsl&ipfiil convert.,. " It is in this sense that it is to be
foaad used in Von Hammer's History of the Assassins (p. 75), where he
,relates how one Khoj6Mahomcd Sheristani, having been sent from Alamut
on some embaesy to the court of one of the Seljukian Sultans of Irak at
Rhai, was there massacred "on lllllving the presence" by the ferocious Soni
populace of that orthodox city, who rose en ma&e agai11St the Ismaili
convert or disciple.
From Sind the Khoja conversion would appear to have spread into
Catch, thence into Kattywar, and through Guzerat to Bombay, In the
(p) The ftrst Arabian Ccnqt"'9t was as early •• A. D. 775; but in 750 the M:al1ometan
conquerors ,.ere dri•en out, and Slnd appears not AitRin to have ~omc mulcr Maho-
m•wn dominion till the 12th oentnry of our era : Kipblcst.ono'e lllatory of lu<ila, p.
ffi·:l6:I and Appe11dis, 'l'it. k Sclnde," p. 628.
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344, BOJIBA Y HIOB COURT RIPOB.TS.
1866. preaent time, Khoja communities are to be found in almost all the large
- - - - - trading communities of Weatern India and 011 the eeaboard of the Indian
c.!:o!::~ Oceau. The Khojaa are all, u a rule, engaged either in retail trade or
11:1: relatione oommerce, and freq11ent11 proeec11te both with conaiderable 111coeea.
DAYA'
Mull.AIIIIAD In Sind, aa appeaz11 from the eTideuce in this caae, the1 nnmbur 2,800
AND OTBBBS
11• houaee or familiee; in Kattywar about 6,000 familiee. In Cutch and
:u~=
MulLUOU.D Guzerat the numbers are not stated, but mutt be considerable ; Bhnj, the
capital of Cut.eh, having long been one of their principal seat& In Zanzibar
AKD OTBBB8. (on the African Coast) there are 460 Khoja families-in MIIIICllt 400-and so
on. In Bombay and ita immediate neighbourhood the1 'IJJII.Y probabl1
number about 1,400 families, of whom about 400 side with the relatora and
plaintiffs, the rest with Aga KhAn.
Beyond the limit.a of Bomba1 and it.a immediate neighbourhood no differ.

ence of religion& opinion appears to prevail among the Kboj'8. All or "the
overwhelming majority of the Kboji communit1 in all parts of India and the
Bast, except Bombay, are the staunch adherents of Aga Khan: to take an
illllBtration (which seeme to be quite a fair one) from the evidence of wit.
neai No. 23, i t ~ that "6 out of the 450 families who compoee
the Kboji community of Zaru:ibar have recently signed a paper of adhesion
to the Aga and to die views he ia understood to repreaent.
WhereYet a Khoji community ia to be found, however small, it.a organi-
sation ia the same: it has a Ja'IMU, a Jamat-Khd.n4, a Nukhi, and a Ka.ma·
ria.
The "Jamat" is the' con~tion of thepeople,' theaaiembly in council
of all the adult male members of the Kboja community of the plaoe.
The "161118' Khini" ia the coUDcil-hall or guild-hall of the community.
fte ":Mnkhi" ia the tl'eal1lrer or steward, and the '' Kamaria" the ao•
o,antant.
It may u well be JMntioned llere (aa it is the clear l'Nol, of the mdence,
and efl'ect.u.lly diepoeea ot the 2nd, 8rd, and a portion of th" 6th clauee of
the pra1er of this information and bill) ,hat theee two functionariee, the
N..tli and KGtNria, are not, accol'ding to the naage cA. the Khoji oomma.
m.lty. electied for any u,ertained and bed period, but appear to hold their
ofiioe (if they wish 80 to do) as long aa they gi'fe aatiefaction. Numeroua
inatanoee were depoaed to in which the1 oontinaed to hold oflice for several
coD1111Cntive years-eometimee for lile-d one inatance, at leaat, w1111·men-
tioned in which the father had been succeeded in oflice by his eon. Besidee
theee local ra..tll. and kaMGriaa, proof waa given that in Bind and Katt1•
war (it may aleo be the cue elaewbere) provincial mt1111riae are appointed
1t1 and hold office under the Imam, for the time being, of the lsmailla. The
duty of these functionaries is to collect and forwahl for transmission to the
Imam, wherever he may chance to reeide, tb.e oontributions raised on Ilia
account by the Kb.oja oommanit.,.
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BOIIBAY HIGH COURT RIPOR'1'8,
to
It la conclusively abown, partly by direct evidence of account books going tij6.
back considerably beyond the commencement of the preeent century (thoae - - - - -
of Sind to A.D. 1772, those of Kattywar to A,D. )782) partly by evidence of cI:xxG~~=~
tradition in the caste or eect aa reliable aa any other evidence of tradition ex relatione
adduced in this caee (quite asrelial,Je, for instance,aa that which represent.a DAYA'
Pfr Sadtdin to have been the original converter of the Khoj'8) that, for a 0~ ~!,t1
time "beyond which the memory or man rnnneth. not to the contrary"- "·
from the origin-from the very outeet of their aeparate exiatence aa a HtrRA)(XAJ)
Husu
distinctive c1,mmunity-the Khoj'8 have been in the habit of transmitting HtrSENI
as to their " Sirkar-Sabib" (lord and maater), voluntary ol!eringe (Zabt) out ABD OTJIU8.
of religion& feeling (Dbarm) to the Im,m for the time being of the lamailil,
whom t.bey revered aa their Murahed or apiritual bead.
The mase of evidence adduced on this point is too strong to be reeist.ed,
Even the witnesees called for the relators and plaintiffs were compelled to
admit, that, according to the uniform reputation and tradition in the Khoja
caate, their fathera " Crom the beginning " bad been in the habit of making
voluntary contributions to the fa,hera of Aga Khi\n : while the positive evi-
dence adduced oo the other side makes it impossible to entertain a reasonable
doubt that the Khojas have throughout been in the habit of aending
periodical collections to the Imams of the lsmailil in Persia, in the earlier
and ruder times in the form of coin or treasure sent by special messengers
called'' Raia") in leathern bage (called" Jowlies"); afterwards, as commer,
cial facilities increased, by means of hundill (bills of exchange) principally
drawn upon and cashed at Mnscat.
Not only were 'the Khoju, from the first, in the habit of transmitting
contributions to the Imams of the lamailie, but it waa also, from the origin,
a frequent practice with them to make pilgrimages into Persia for the sake
of beholding and doing homage to these their spiritual chiefs. This practice
also (called pilgrimage to " Durkhana ", i.e., to the principal residence for
the time being of the Imam) is shown not only by the admissions of witnessea
for the relatora and plaintiffs, but by the poslti ve testimony of the witnessea
for the defendants, to have been, according to uniform tradition in the caste,
a practice obaerved by the Khoju from the earliest times of their existence
as a separate community : " From all time our fathers used to go on pil-
grimage to Durkhana."
One witne1111 (No. 20) gave a narrative of a pilgrimage of this kind that
he made in 1836-37 to Kerman where Aga Khan at the time happened to
be residing. The witnees, hie father and mother, a brother, and two aietera,
with a party of about 100 other Khoja pilgrims, sailed from Bombay to
Bonder Abbas, a portion of the Persian Coast, near the outlet of the Persian
Golf. Thie body of pilgrims bad offering& with them, in money and rioh
staffs, to the collective value of about £2,000 sterling of our money. They
stayed aome time at Bunder Abbaa, waiting for other Khoj'8 to collect thera
from other quarters, before ,tarting on their tedious and somewhat periloua
journey of twenty-one days across the mountain rangea of Soutbem Persia from
Bander Abbaa to Kerman. At length, about 500 R'.boj'8 haviDg colloted
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340 BOKBAY HIGH COURT REPORTS,
1866. from all parts at Bunder Abbas, the caravan was formed, and they made
TA-- their way to Kerman. Therethey were lodged, at the expense of the Im,m,
CAT=~EN~~L in a large rude building, built round three aides of a great open conrt. They
ex relatioM stayed in Kerman about a month or six weeks, during which period, having
DAYA'
M UHAMMAD first made their offerings, they were admitted ten or twelve times to the
AND OTHERS presence of the Imam. " The Aga," says the witness, "sat on his mumud ;
v. we beheld bis face, kiaaed bis hand; and retired." It was for that they bad
:MUHAMll'.AD
HosEN come, and with that they were well satisfied.
Ho!!KNI
AND OTll.ERS. The pilgrimage and the presents cost the witness's father about :£500 of
as
our money-a enm which, the man was only a dealer in grain and dried
fruits in a moderate way of business, eeems to the modem English miud a
somewhat considerable outlay to haTo made for such a purpose. But the
West can never understand the East, especially the modern and mercantile
West. To an Englishman of Chaucer's day such an expenditure for such
an object might have appeared more intelligible, provided, of course, that
the pilgrimage was made to a shrine or saint of Christendom, not of Pay.
nimrie or Heatheneaae. ·
It is not necessary to go into the detail of the different fees -fees on birth,
on death, on marriage, at the new moons, &c., of which (as the evidence of
the witnesses and of the exhibits shows) the customary or voluntary contri-
butions of the Khoja.s to their Imam were made up. The principal was the
" Dusaoon," a percenl.age on income. This payment has throughout been
and still is paid by all Khoj6s, except those of Bombay. In Bombay it has
for some time been resisted, and is now paid here, not as a rule, but as an
exoeption.
It is more important to observe that all these payments are made under
· headings, such aa '' Sirlclr-Sahib," " Pir Sabl,mut," &o., which, though
varied in form, all indicate one and the same appropriation-an appropri-
ation, namely, to the Imam of the lemAilis, as the Miu-shed or spiritual
head of tho Khojas.
All the offerings or contributions of the KhojA community appear, from the
evidence, to bavo this primary destination. It ia out of the fund thus raised,
after consultation with the agent (Warms) of the Imam, that .the necOSBary
local public expenses of the various communities are defrayed.
The witness No. 28, a Bombay KhojA and one of th011e who had
never paid the Dussoon, though he was in the habit of paying the other
customary fees, 11&id that he paid them "as a matter of 1lharm or religions
feeling." "I pay thei;n," he said, '' for the Ag,; if I knew they went to
any one else except our M.urshed (spiritual head) I would not pay anythi~g
at all."
Allarakhia SumAr (No. 18), tbo .Mukhi of the Khoja Jamitt of Bombay,
a very respectable and reliable witness, said : " It baa been ordained from
the beginning that whatever funds are collected, should go to the Murshed-
the Hlirshed and the Janidt (the spiritual head and the asaembJ 1 of the
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Khoja\s) are identical. Uthe .Mul:hi and Kamaria did not hand over the 1866.
monies to the Aga, the Khoja community would pay no more fees."
THE ADVO•
Witness No. 20 said: "All the expenses of • the estate account ' of 'the CA.rEGEN~RAL
' ex relat,one
estate expenditure account' and of the • Jamdt Khdna account,' are defray. DAYA '
ed out of fees paid 'on• Birkil.r-Sahib's (the Imam's) accoW1t.'" And the truth MUHAMMAD
of this statement is completely borne out by the voluminous translated A.!rn OTHERS
v.
entries f rom the books which have been filed in this suit among the exhibits MnHAlnfA.D
for the defendants. HusEN
Hus&NI
To the same effect is the evidenoe of witnessess No. 24 and No. 25. AND OTHKU,
This latter witness, the Kamaria·general for the province of Kattywar,
says : "All the Ja,ndt Khdna, in Kattywar are built and purchased by the
consent of the Warras (agents) of the Aga ont of Sirk:lr-Sahib's money, and
are entered in an account called the • Jamat Khana account.' All the
Khojas in Kattywar know that their contributions go (primarily) tu the
Aga ; otherwise they would not pay a pie."
It is not necessary to cite further from the eviaence on this point ; a full
consideration of the whole mass of it (and very voluminous it is) has led me
clearly to the two following conclusions:-
1. That, except the comparatively small nnmbersof Bombay Khojas who
form the party of the relaters and plaintiffs, the Khoja community would
make nri contributions at allfor public or caste purposes except in the name
and primarily on account of their Sil'kar-Sahib, the lmi\m of the Iemailis.
2. That the great bulk of the so•called public property of the Khoja
community, both in Bombay and elsewhere, has been acquired by monies
paid out of this Sirk:lr·Sahib's fund, with the approval and oonsent of the
properly ~onslitnted local agents of AgA Khan and his predecessors.
As a rule the Khojis have no musjids or mosques-in fact, the only
KhojA musjid till very recently in existence was that erected in A,D . 1822
in the Khojl'I burial-ground of Bombay. The Nimmdz, or daily prayers,
among the Khojas are repeated, or 1 as the approved phrase seems to be,
performed in their Jamdt Klutnds: and in order to complete the proof of the
close and peculiar connexion subsisting betweeu the Khojas and their
Murshed, the Imam of the lsmtlilis, it may here be mentioned that the
pedigree from Ali through Ism1iil of the lml'lm for the time being, is
chanted three times a day as part of the service of the daily prayer or
Nimmdz iti a form of words called the " Dowa" throughout all the Jmndt
Khdnas of the Khoja community, iucludiog tho Jmndt Kltdmt of IJombny.
Such, then, in its origin aocl its past and present relations with the here.
ditary Imams of the Ismnilis appears to me upon the cvideace to be and to
have been the Khoju community.
The next point to eC'nsider is-what have been tlie relatio11s of .Agd Kltdn
himself with the particular Jamal, or community oftl,e Klwjds of Bo111bay?
His first recorded intercourse with them ,vas one ofcontroversy and strife.
In 1829 the same party th:il are now ,cpl'CJcntcd by the relatvrs and 1,lain-
B 622-11
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1866. tlffil, headed by Habib Ibrihim, the father of Ahmed BabibbhAi (the mOtlt
Tnz ADvo- active and inlluential among the present relatom and plaintiffs), resisted the
canGzNERAL oastomary payment of the Dtu,oon, or percentage on income. Aga Khan,
u relatioM in order to overcome this oppoaition, sent to Bombay as his special agent
M~;::~ one Mirza Abdul Kassim, accompanied by a very energetic lady, the Ag6.'a
All'D oTHBR8 maternal grand-mother, Marie-Bibi, who hel'l!elf appe&l'I! to have haraugaed
v. the Bombay Khojaa in Jamat Khtna 888embled, and with very considerable
Mu;::;::n effect, in 1upport of the claims of their Jdumhed. It was in .the coUl'l!e of
Bt:8.1!:NI these proceedings that the bill of .&.D. 1829 was filed for the purpose of
Alm 0Tllll8, enforcing these payments by a decree of the late Supreme Court. Aga Kh6.n
(in the 4th paragraph of bis answer) has denied that this suit was filed with
his authority ; but a power of attorney sealed with the seal of the Ag6.
clearly recites "that as in Bombay some reprobate persons had laid the
foundations of disobedience, it is necessary that he (Mirz6. Abdul) do bring
~n aotion in the English Court." Authority having been thus formally
given, the suit was filed, but it was not proceeded with, the bill having
been diami.ued for want of proeecution on the J2nd July 1830.
I do not think much importance can fairly be attached to the circum.
stance of filing this bill. Aga KhAn, a Pemian nobleman, then resident in
Pel'l!ia, was in all probability very imperfectty informed as to the inferencea
that would be df&wn in an English Court from the attempt to enforce by
legal proceas such payments as these. As he did not prosecute the suit,
the fair and reuonable inference is, that, on being xqore correctly informed,
he found he had adopted a mistaken COUl'l!e, and consequently abandoned
the proceedings. What is certain is, that after abandoning the suit he
~irected the reouaanta to be summoned before the Jamdt of Bombay, and,
on their continued refusal to pay the fees demanded of them, to be tnmed
out of caste. Accordingly in A.D. 1830 BI.bib Ibrahim and his partizans,
called from their then number the Bdrbhdi, or twelve brethren, were
outoasted by the whale Khoja Jdm<tt of :Qombay in Jdmat Khdnd assem,
bled. In A.D 1835 they, on their own petition and by the direction of the
.Aga, were re-admitted on condition of paying (which they did) the arre&r1
Qf contribution due from them, and engaging in future to pay all the cus-
tomary fees that ahciuld tl>,enceforth be (\em~nded of thein on account of tho
Sirk4r-Sahib,
From this time till the Aga's arrival in Bombay in 1864 there ia no record
of any further disturbance in the comm1lllity.
l>arioa the absence of tlie Aga in Oalcntta in 184647 and 48, a litigatiOll
,,.. carried on and concluded, which again divided the Khojaa of Bombay
into two hostile parties; it was the well-known case aa to the rigbta of
female inheritance among the Khoju (~lled Bajun-Jdir-Ali'e case) ~II.
which Sir Erskine Perry in 1847 pronounced a learned jadgment (founded
on the evidence of caste usage and cnstom) against the rights of Khota
females to inherit acoording to the rules of Mal1omedau law (q).
(![) Perry 0. C. 110,
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In this litigation the Aga, then repreaented in Bombay by bia brother 1866.
Mabomed Bauker Khan, had endeavoured to uphold the rule of inheritance - - - - -
u laid down in the Koran, Habib Ibrahim and the party of the Barbluti J~o!:'~
iook an active part on the other side. e:i: relatione
DAYA'
Tbia wu the commencement of freeb feuds, leading, in 1848, to a eeoond MUHAJOCA.1>
excommunication of Habib Ibrahim and hie supporters, followed by a general A.NDOTDBS
17,
aeceeeion of the Bcirbluti party from the body of the Khoja community-the MUHAJDU.D
lecedera establishing themaelvea in a new Jamdt Klutna in a di.tl'erent part of HUBBN
the Native Town. HUSBNI
AND OTHDB.
In 1850 a deplorable event, arising out of theae feuds, occurred in the JamdC
Khdnd at Mahim. Four Khojaa of the Barbluti party were murdered there
by eeveral Khojas of the opposite faction, nineteen of whom were tried for the
offence before the late Supreme Court in the December 1888iona of 1850, aad
four capitally aentenced and hanged.
From the reluctant admissions of witness No. 20, himself one of those
wao were arraigned, but acquitted, on that oce&11ion, it 11uffioiently appears
that the bodiea of these four murderers, after having been given up to the
Khoja community of Bombay, were treated with undue funeral honours with
the connivance, if not by .the direction, of Aga Khan-a circumstance which
ahowa the demoralising effects of religious zeal, and retlecte the deepest discredit
on the lint defendant.
In A.D. 1850 the information and bill was fl.1,d, of which the pre,ent infor•
mation and billp urporta to be the continuation, and in A.D. 1851 Sir Erskine
Perry pronounced the Declaration of Right,, to which reference hlll already
been made.
Thie bad the elf'ect of producing a state of peace in the community, which
lasted unbroken for upwards of ten years. The outcaated were re-admitted to
caate; the new Jamdl, Khcina of the seceder& was abandoned, and all went
emootbly until, on the 20th October 1861, Aga Khan thought fit to publish the
paper, ~ translation of which ia printed in Schedule B to hia answer, and ia
also filed ae Exhibit No. 19.
In this paper Aga Khan expresses hie desire to bring the Khojae to conform
to the practices "of the ImamujAh creed of bia holy ancestors" (in other
words, of the cre,ed of the Shii-Imami Ismailie) in respect of "marriages,
ablutions, and funeral ceremonies." He statea that, having aeen it in print
that the Khojas are Sunis, and that a certain person (meaning hilll.8elf)
ia "peremptorily inviting them to embrace the Imamujah creed," he baa
prepared thia pa.per in order that (as under the English Government the
exerci.ee of all religions is free) the Khoj&s who believe in the Shia-Im,mi
Iamaili faith may now act openly according to the practicea of that religion,
" which their anoeators h11ld secretly," especially as regards the:celebration of
marriages, funerals, &c. The paper enda thns :-" Now be who may be willing
to obey my orders shall write hia name in this book " (the paper is written at
the commencement of a book with blank leavea for aignature,) " tbat I may
know him."
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350 BOllBAY HIGH COURT REPORTS.
1866. The proximate oanae of preparing and pnbliahing this paper, ie etated
T HE A DVO· in the paper itself, to have been the :r.ppearance, in print, of statements that
.. . . .
CATEGKNERAL the KhoJa.. were Sums, and that Aga Khnn was attemptmg by coercion to
ex relatione make Shiaa of them. This alleged reason i6 likely enough in itself, and ia
, 1 DAYA' borne out by the evidence of witness No. 18, who says: "In consequence
i . ·UHA:IIMAD
.um OTHE&S of certain newspaper articles stating that the Khojas are Sunis, the Agn got
v. a writing prepared : he told me'' (the witness was M11l:hi of the Bombay
HUHAMMEJ>
HusEN Jamdt) "he shoulcl like to see who of the Khojas were Sunis and who were
HusENI Shi:is ; those who were Shins should come and sign that writing."
AND OTHER~.
Accordingly the paper lay for signature at the house of one of the Aga's
,ons in the Native Town at Bhendy Bazaar, and was signed by soine 1,700
male, but not all adult, Khojlis of Bombay, Salsette, and Mahim.
Copies were circulated among the Khoja communities of other parts of
India and the East-in Si.nd, Kat.tywar, Cutch, Zanzibar, and other places,
in all of which, as might be expected from the d".l\•otcd adherence of all
Khoj:i~ except a small minority in Bombay, to their SirkAr-Sahib, it, as a
n1Je, rec()i\'Cd an almost unanimous 11cU1esion. In fact. the only exception
disclose,! by the evidence waa that spoken to in cross -ex·amination by
witness No. 25-the refusal to sign the writing by about 20 Khoja
families at Mown, a large cotton-exporting port near Bhaunagar in Katty.
war. The alleged reason for their refusal to sign was, that by doi,ng so
they might offend those members of the Khoja community of Bombay who
adhere,l to the relatora and plaintiffs and with whom they had a large and
lucrative business connection. They snid: ",ve are Shill.a already; why
ahould we sign this writing ?" and they refueed to do so, or to give up1.heir
long-establishecl practice of marrying before the Suni Kazi.
It is not unimportant clearly to bear in mind the precise nature of tbie
writing. It is not, as it has been occasionally but incorrectly termed, a
profession of Shia faith. It is a mere declaration or pledge on the part of
those Khojus who, in matters of religious opinion, are already Shius, or
rather Shia Imami lsmiilis, that they will, from the timo of signing it,
perform their funeral and marriage ceremonir!!, not according to the Slllli
form, as it is aclmitted they had heretofore done, but according to the Shia
form. It is an engngement that those who have all along been Shina, or
Sltia-Im:1wi Ism:iilia in religions opinion, shall thenceforth be so alao in all
the departments of religions practice.
Such as it wa.q, however, it was regarded as a fresh declaration of Jar by

the party of the relatora and plaintiffs. It led at once to a refusal by that
party any longer to pay the customary fees and offerings to the Sirki\r.
Sahib, It led, further, to the filing of the preRent information and bill,
(filed originally in June 1862 as amended in September 1862), the great
object of which, as already intimated, is to obtain from this Court an author·
itative declaration, that the Khoja community in its origin was throughout,
has been, and still is, Soni, and that no Shia (a fortiori that no Shill. Imll.mi
Iamaili) ia entitled to any share, interest, or voice in the management of the
trust or public property belonging to the Khoja community of Bombay.
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These proceedings of the relators and plaintiffs and their party led to 1866.
certain retaliatory proceedings on the other side, which, as they were subse. T u ~
qnent in date to the filing of this suit, cannot, aa already intimated at the CATXGESEHAL
hearing, be l'flgarded as affecting the legal status of th~ relators and plain• e;x; ,·elati~ne
tiffs. As, however, they ha,e been deposed to by several witnesses and Mu~:!~AD
largely commented on by counsel on both sides: as they are requisite to AND oTIIERB
complete the narrath·e of the relative position of the contending parties : v.
Muu.u1:MAD
as, moreover, they furnish the best illustrntion of the mode in which the Hust:N
process of outcasting is actually carried on in the Khojn community under HusENI
the superintendence of Aga Khan, it will be desirable not to pass them .UID OTHERS,
over without mention.
On th., 16th of August A.D. 1862 a meeting of the whole Khoja Jamdt
or Bombay waa solemnly convened in the Jamdt Khand. This meeting, the
relators and plaintiffs and their partizans, though duly summoned thereto,
did not attend ; noither was Aga Khan there, nor any specially constituted '
agent of his, though there can be no manner of doubt that all that was done
at that meeting, and all that followed, was done in concert with him and
by his direction. At this meeting a form of notice WPl! nnauimously agreed
'to, dated August 23 (set out in para. 22 of the answer of the first defend-
ant), by which it was intimated to the party of the relntors and plaintiffs,
that if they consented to abide by all present and future rules framed by
the whole Jamdt for the guidance and benefit of the community, and to pay
all fees and contributions due from them up to that day, then the Jamdt
would receive them with joy as brethren-if not, then, within twenty-one
days from the presentation of the notice, they would be turned out of C1111te.
After the expiration of the twenty-one days, the required conditions not
having been complied with, the Jamat again solemnly assembled in the
Jamdt. Khdnd.. Again none of the party of the relntors and plaintiffs, though
again duly summoned, were present: nor was Aga Khan there, nor any
special agent of his. At this second meeting, by the unanimous vote of all
the Khojns in Jamat assembled, the relators and plaintiffs and their
adherents were solemnly turned out of caste, and have remained outcasted
ever since.
Jn February 1£!64 a further and final step was tnken by turning the
officiating 8uni Moola ont of the old mosque in the Khoja burial-ground,
since which worship in the old mosque has been carried on by Shia Moolas
and according to Shia forms.
Since these tra.neactioue the party of the relaters nncl plaintiffs have been
in the occupation of a separate Jamcit Khd11a, and have opened for thcm-
aelves a separate musjid.
We now pass to the consideration of the question, as a matter of direct
historical fact upou the evideuoe, as to who Pir Sadrdin was, aud what was
the form of Mal ,ometanism to which he converted the Khojas.
According to tho tradition uniformly prevailing among the great bulk of
the Khoja community- aruoug all Khoj:ia in short, except that uuw< rioally
DigitizedbyGoogle ...
1866. small proportion of them who are represented by the relaton and plaintift"s-
-T--A- Pir Sadrdin came from Khorasan as a Dai or mieaionary of one of the
HB DVO·
CATEG:r.NJIBAL anceeton of Aga Khan (Shah Islam Shah), and converted the fint Khojaeto
n relatione the Shia Imami Isruaili form of Mahometaniem.
DAYA'
MUHAMIIUD On the other hand the relators and plaintiffs maintain that P!r Sadrdin
.A.ND OTHERS was a Suni Mn88ulman, a native of and resident in Multan, and that he
"·
MUHAMM.A.D
converted the Khojae to the Suni form of Mahometaniam.
HU SEN Two witneBBea were' called-No. 9 by the relaton and plaintilra, and
HUSENI
AND OTR.EBS. No. 22 by the defendants-both of whom were Syuds, and both, as they
deposed, lineal deacendanta of Pfr Sadrdin, who each gave exactly opposite
acoounta of the religioua opinions of that oonverter of the Khojaa. W itneaa
No. 9, whose ancestora had, as he said, lived in Surat for the laat 100
years, declared that he himself and all hie progenitors including Pir Sadr-
din, were, and always had been, Sonia. WitneBB No. 22, whose family
had, aooording to his atatement, been for 200 years in Surat, declared with
equal confidence and with equal apparent credibility that he, and they, and
all his progenitora, including Plr Sadrdin, were and alwaya had been Shiu
of the Imami Iamaili persuaaion.
The teatimony of one of these witneaaes may be set olr against that of the
other, subjeot only to the remark that the testimony of the Shia witneu
No. 22 is in aocordance with, while that of witness No. 9 opposes the tra-
dition of the greatly preponderating majority of the Kboja community.
But there are three considerations which lead me to the conclusion thali
the truth is with the m~ority.
The first consideration is this : If Pir Sadrdin had been, ae the relators and
plaintilrs allege, "a Soni teacher who converted the first Khojas to Suni
Mabometaniem," he must have stood forth before the Khoja community as
the great ol>ject of Khoja veneration, with nothnig between him and the
Apostle of God. In snob cue the homage, the devotion, the pilgrimagee
whioh have been proved to h11ve been made from the beginning by the
Xhojas to the Imams of the Ismailis, would naturally have been paid to the
holy tomb of the great founder and saint who had converted the Khojas to
the religion of Islam.
Now nothing of this kind ie or ever has been the case. Pir Sadrdin lie1
boriedin North-Western India at Ootch, in Bhawnlpore; bnt no pilgrimage•
are made, no extraordinary devotion is shown to hie tomb. Not a 1ingle
Khoja witness baa been produced on either side who bas ever made a visit.
to the tomb of Plr Sadrdin; the only witneBS who gave any information about.
it at all, was No. 24, a witness for the defendants. He, indeed, on orou-
examination Aid that be had known a few Khojas of Bind who had been
to Ootoh, and told him that the Pir had a fine durgci or tomb there kept op
by Syods, descendants of Pir Sadrdin, who were all Shiae: he himself, the
witness added, had occasionally paid some trifling dues for keeping the tomb
in repair ; but it was not common for Khojas to go and visit that tomb-he
did not know why.
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D0)(BAY HIGH COURT REPORTS. 353
Now this, in my judgment, is a 1tate or thing, quite inoompatible with the 1866.
theory that Pir Sadrdin, or his own mere motion u an independent rounder T A
and originator, had converted the ancestora or the Khoj'8 to the Suni faith CA.!-1:Git.,:i.:a~
or I.am. On the other hand, it ia e:ractly what might reuonably be expeot· a rtlatio11e
ed, iC the tradition or the great body or the Khojl. oommunity be well ,., DAYA
.inUHAlDlAD
rounded, vis., ~ t Pir &drdin wu a mere Dai, or mil8ionary, of a living, AND OTHERS
though cliBtant, Im~ or the I11t111.ilia, to whom, u to a living concrete object 11.
or reapect and worship, he Crom the first directed the 1piritual allegiance MtmAJOlAD
Huso
and veneration or the new oon~ert1. Hus&NI
.um OTIISRS.
The NOOnd ooDBideration is thie : a11 already lhown, it is proved llll clearly
a11 any oircumatanoe orthe kind ia.oapable of proof among a people where
oral tradition 1upplies the plaoe of written recorda, that the Khoj, com.
munity from the beginning made pilgrimages and paid oontributions to the
hereditary !ml.ml of the I1ml.ilis. Now, how la this clearly-established Caot
to be aooonnted Cor ? On the 1npposltion that Pir Sadrdin was a Dai or
miuionary or the then !mama of the Iam4ilis, the explanation is clear and
nmple; but if this be denied, what other explanation ia to be given of the
faatB P Waa there a subsequent oonveraion and a seoond founder P Thie is not
even pretended, and, if there had been, some tradition of it it would oertain•
ly have been preaerved, whereas no inch tradition ei:iatl or is pretendtid to
e:s:iat. When one allegation, 1npported by an exceedingly strong and uniform
ourrent or tradition, clearly explains a proved state or facts, which no other
1111gg811ted hypotheaiB will account Cor, it ii 1nrely not enough for those who
diapu'6 that allegation, limply to 11et np a oounter-allegation, 1nppqrted by
a far weaker onrrent of tradition, which iDBtead of explaining the proved
faata, makes them nnaooouotable. If Pir Sadrdin Wall a Suni, and oonverted
the first Khojas to Suniam, how are we to acoount for the well-eatablished
faot that the Khojal.B, from the beginning, have been bound by tiea of close
eplritual allegillllce, evidtmced by outward aot1 of homage and devotion, to
the hereditary lm&mB of the Iamailis P
The third oonsideration arilles out Qf the oharacter of the ancient religion•
books of the Khoju, and especially of the" Daaavatar," the chief of them.
?iow, by a tradition long univereal in the B;hojaoommunity, lllld never, I
believe, oalled in queation by any Khoja, till the appearance, in the witnen.
box, during the progreu of thi1 suit, of two or three or the more zealous
witneB11es for the relatora and plaiiltiffB, the authorship or the Dluallatar ia
ucribed to Plr Sadrdin.
If it be not hie, then the y.me difficulty ari1e1 aa wu suggeated under the
lut head of obee"ation. If the original oonvertor or the Khoja1 were not
the compoaer, or (which for thi1 purpose amounts to the 1a111e thing) the
introducer to the BeOt, u a leading book of religions teaohiug, ofthe Ddaava•
tar, how oomea it that that boolr. baa been from the beginning the accepted
•criptnre, eo to •peak, of the Khnja 1ect r
That it baa been ao, and, with the exception of the party or the relatora
IIJld plaintiffil, ,till is eo, is abundantly ole11r on the evidence. The preaent
Wormation &Qd bill (in ita .lirst paragraph), adopting u true the 1tatemeiit
Digitized by Google ,.
354 BOMBAY BJOR COURT REPORTS.
1866. to that effect continued in the information and bill of 1850, allege&" that
------ the Ddaavatar is invariably read over Khoju who are at the point of death."
C~T~t!,~~ The evidence taken in this Calle proves incontestibly that in all the Jama,
u relatione Khdnd.a of the Khojas throughout India and the East, " including that of _
.,. 1DAYA' Bombay, the Dcua1Jalar" is publicly and periodically read aa a matter of
,.. lJRAMMAD
AND oTHES.S stated religious observance.
II.
MUHAMMAD If Pir Sadrdin, according to the vastly preponderating tradition in the
HusEN community, composed this work, or if he introduced it as a work of principal
Hus&NI religious authority to the first Kboja converts, the explanation of its ocmti-
AND OTHUS.
nuoue and all but universal nee in and by the Khoja community ia easy and
plain. On any other supposition it remaipa inexplicable, unless, indeed, the
relaters and plaintiffs had come prepared with proof, not a shadow of which
· have they even attempted to give u to when, how, and by whose instru-
mentality, if not that of Pir Sadrdin, this book became adopted by the
Khojas a.s the most saored volume of their religioue litere.tore.
It is impossible to ovade the foroe of these considerations; it is impossible

not to see that the evidence on this point leads, as the only reasonable infer-
ence, to the conclusion that the Ddaa11atar, if not composed by Pir Sadrdin,
which is the more probable supposition, was, at all events, introduced by
him as a leading religious tractor text.book for the ll8e of the first converts
among the Khoju. ·
Regarding, then, Pir Sadrdin as the author, compiler, or adapt.er of the

Dcisavatar, what is the inference that arises from the nature of that work
u to the nature of his religious opinions P
What is the Ddsavatar? It is a treatise in 10 chapters containing(as, indeed,

its name imports) the account of ten avah.rs or incarnations each dealt with
in a. separate chapter. The liral 9 of thue chapters treat of the ni11e incarna.
tions of t!u Hi11d11 god Vishnu; the l 0th chapter trec,.t, of the incarnation of the
"Most Holy Au."
The negative conclusion is clear at onoe. No Suni could have composed,
compiled, or adapted such a work as this; the idolatry of the first 9 chapters,
the semi-deification of Ali implied in the 10th chapter, alike are utterly
impossible.
On the other hand it is precisely such a book as a D!i or missionary of the
Ismailis would compose or adapt if he wished to convert a body of not very
learnod Hindus to the Imluni Iamaili faith. It precisely carries out, what it
baa already been shown, were the standing iuetruotions to the Dais·of the
Iemliililo, viz., to procure conversions by a&llfflting, a, in great pan trne, t!u
religiou, atand-point of the intended con11ertite. Thie is exactly what this book
doee : it assumes the nine incarnations of Vishnu to be trne as far aa they
go, but not the whole truth, and then supplements the imperfect Vishuuvite
system by snperadding the cardinal doctrine of the Iemailis, the incarnation
and coming manifestation (or Avatar) of the "Most Holy Ali. " When the
book is read in the Ja,~d.t Khdna of the Khojas, it is this 10th chapter (as
appears from the evidence) which ill alone now-a-days seriously attended to.
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Wh "lt1 th~t ch~pter is commenced, the congregation of the people rises and 1866.
remains standing till it is concluded, making profound reverences whenever THE~
the reader pronouucos the name vf the ' M08t Holy Ali' ( Mow/a or Moti:.ir CATEGKNERAL
.Ali). u relalione
DAYA'
The above considerations leave me in no doubt as to the only reasonable MUHAMMAD
AND OTHBBS
conclusion to be drawn from the evidence on the point immediately under v.
discussion ; that conclusion is, that the preponderating tradition of the Khoja MuHAM!U.J>
community is substantially correct, that Pir Sadrdin was a Dai or mission• HHusEN
· USE~I
er, of the hereditary Imams of the lamailis (probably of Shah Islam Shah), AND oTHERI.
and •hat ho converted the first Khojas to the Shia Imami Ismaili form or
Mahometanism (r).
Bat, then, it is said, if this be so, how is it to be accounted for that, from
the beginning, the Khojas in their fw1era.l~ aiul in tlteir ,narria!Jel have
followw. tire practice& and tlte rite& q/ tlu Suni Mal1ometa11&1
The fact that they have done so, is not seriously contested by the defend-
ants, and hll8 been most conalusively established by the evidence adduced
on behalf of the rolators and plaintiffs.
The answer given to the abovo question by the defendants is ,that the Kho-
jas have observed these practices from the beginning out of " Tttkial, ''-
concealment of their own religious views and adoption of alien religious cere-
monies out of drea.d of persecution for religion's sake.
It has already been shown that "Takiah," in.this sense, has been uniform·
ly recommended by the te.&ohings and illustmted b:, the practice of the
Shia Ima.mi Ismailis.
The doctrine· and practice of " Takiah" is unknown to the Suuis : ae the
orthodox and dominant body in Islam they never had occasion for it ; but
it is frequently practised, as already seen, by the Shias, and it ie still more
deeply ingrained into the habits of the Ismailis who, of all other sects, have
been most obnoxious to the persecution of the fierce and orthodox Sunis.
What the fierceness of Soni bigotry amounts to, is a matter difficult to

convey adequately by any general terms-it will be better judged of by a
Bingle well-attested illustration.
The great Emperor Akbar ruled over India from A.D. 1546 to A.D. 1605:
as is well known, he was au ardent religions reformer, who attempted, if be
did not com,1>lete, the establishment of1U1 eclectic system that approached
pretty nearly to pu~ theism (a).
lie was also a great patron or literature, especially Hindu literature, the
principal works of which he caused to be translated from Sanscrit into
Persian . Among those employed by the Emperor in these labours was the
very learned Suni Moola-Abdul Kadir-whosc task it was, very much
(r) Sir Erskine Perry, Ra llppeara by a note to his reported judgment In the case of
Khoj,1 lnhorlt.ance, had, on farther red=loo, arrived at the e11me couolualoo. B« nou
lop, 113 of Perry'• Or~Alal Ca.Ml,
(•) Elpbln•toM's Hist. or Inclia, Book IX, Chap. 3; Akbar Shah'a Di vino Honothei8Dl,
by E. Behat.oek, &lo. of 18'!6, Bombay.
B 622-w
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856 BOKBA.Y HIGH COURT HPO'BTS.
1866. again.It the grain, to tranalate for hia Imperial patron considerable portiom
-T _A
___ of the Ramayana, the great epic of " thoee accuned pagan, and idolaterw."
11B DVO· • • • •
CATKGKNl!:IUL 81 the learned Sun, called hi.a Hindu fellow-anbJecta.
u rtlatione
DAYA'
Mt1JLUOUD Abdul Kadir has left behind him a -iea
~r-
of diA,...,
-.,
oalled the "Manta·
.urD kab-al-Tawarikh," which presents a liYely picture of the court and of the
OTlll.118
11. religio1111 projects of Akbar. This diary ia oft.en referred to, by Mountnuan
:M 1r8::.!ADElphi1111tone in hia admirable ' History of India under the Maliom~teie...
Huaux and has lately been in part rendered into English by Mr. EdwardR!hataek.
AND OTBU8. who haa now collected into a small •olume (Bomllay Umo" Preu,' 1816! •
eeriea of tranelationa from it which had previously appeared in the colnmna
of Nat~ Opinion., a •811 able periodical conducted by Natin gentlemen
who ha•e received and illustrate the advantages of an English education.
From the diary ao translated I take, with omiaaiona, the following notice, by
Abdul Kadir, or the ass&88ination and of what followed the aaaasaination of
Moola Ahmad, a celebrated Moola among the Shi'3, who by favouring the
Emperor's viewa of religious reform, had drawn down upon himself the es-
pecial wrath of the Sunis. " In this year (A,D,
1587) Mirza Fullad Beg
Birll81 deooyed Moola Ahmad, the heretio-who had publicly curaed the
oompanions of the Prophet" (i.e. the three 6nt oalipha)-" out of the house
and killed him, and the words ' Hurrah for the dirk of ,uel' aa well u the
words ' TM ,wine of Ht.ll' embody the date (t). Verily tclaen tl&at ho1llld
too.I in Ai, la,t agony, I btkla hi, coununa.nce like that of a lu,g, and
other, ha.tie ~ e ,em it in the ,a.me form." For thia orime the ~ n
waa executed, or, 81 Abdul Kadir expreaeea it, "attained the rank of
martyrdom" in the city of Lahore. He then proceeds thus:-'' The mur-
dered man aurvi•ed his murderer only three or four days. A.fter he wu
buried, Sheikh Fay1dy and Sheikh Abulfad&l appointed watohmen over hia
gran ; but, as the oourt went that year to Cuhmere, the inhabi~t, of
Lahore dilmurred one mght hia ,tmlci11g carca.M and b11rnt it." ( Page 79 of
Mr. /uAal«J:'a Tra.nalation.) In the above pamage breathee the full spirit
of the Suni bigot-the Pharisee of Islam-narrow, and formal, and fierce.
If suoh thinge oould happen under the reign of the great and powerful
Air.bar, to a Shia who enjoyed his oloee penonal friendship, it may Mlily be
undentood what would in all probability have been the lot of the earlier
Khoju if they bad openly prof~ the hated faith of the Iamailia, and
had not resorted to the Suni Klkil for the oelebration of their marriagee and
to the Suni m01quee and :Moolu for the perfol'llWlOB of their funerals.
To do eo, indeed, wu a matter of oonvenienoe, almoet of n-ity, as well

u of Ta./ria.h. EYen now, in wealthy and proeperoua Bombay, SAid :Xoolaa, aa
it appeara on the eYidenC(I, are not to be found without eome difficulty. How
were the Khojaa, dispersed in remote and rural distriote, and who, u the
evidenoe in this case shows, had neT'er any muejide of their own-how were
they to aet funeral oeremoniee performed at all, uni- they employed the sole
(t) It la a fuoorlte e11erolle of Pentan lnpnaltJ, In reoordlng any effllt, to compoee

a motto Inv-, which, while eapr-1Dg eome 1e11t1me11t approprlat.e to the eftllt, allo
reoorda la date.
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BOK.BAY HIOB COURT Rll'ORTS. 357
agency they could hd at hand-that of the Suni Moolu officiating_ in the 1866,
Suni moequeaP AA regard, marriagee, the principle of coovenienoe waa still .,,_ A
, .1..u& DVO•
more BtroDgly in faTour of celebrating them before the Suni Kdzu, who keep CATB0DB1UL
a regular and careful regiater, capable of eupplying eaay and authoritative ez relatione
Proof of the fact of marriage-& fact which it ie 10 often of great importanoe M UHAKIUDDATA'
to have the meane of establishing by legal proof. Add to this, the clau of A.ND OTB.US
motiYee which in England, eTen since the pa1111ing of what ia called the Dia- "·
MD&er'• Jlarriage ADt (6 and 7 Will. IV. c. 85.) which came into force on Mu~=AD
la March J837, still induoe ao large a proportion of the di.enting body to HusBNI
marry according to the rites and ceremonie1 of the Church of England. From A.ND OTHEBS.
the laet Annual Report of tk Regiatrar Gener11l of Birth., Death,, and
.Marriagu in England (Of' Uicyear 1864 pruented to P11rliament in 1866, it
appean that out of the whole number of marriage• celebrated in plaoee or
public wonhip in England, the proportion of ID6l'riages in churches to thoee
in Dieeenting chapels is 9 to I. After making due allowance for the mar.
riagee which take plaoe, without any religious ceremony, in the offl.oee of the
Superintendent Regietrar, thie proportion ia IIO greatly in e:i:oeae of that borne
by the Church or England to the Diuenting population, that it ehowe, u the
Regiatrar General obaenee, that large numben of Dieeenten willingly aocept
the churoh ritual in Uie performance ol their marriage oeremoniee.
Of coune, it would be pnpoeterous to infer from thia that the Dieeentera '°
DW'l'1ing cooform in other reepecte to the doctrine and diacipline of the
Church of England-the fact being notoriouely the reTene. It only ehowe
that, partly from the inll.uenoe of long-preniling practioe, partly from notion•
of fuhion and reepectability, great numbere of Diaeentere prefer being mar-
ried by the regular functionary and in the orthodox form,-by a clergyman of
the eetabliehment in the pariah church.
Moti't'et!I of t.hi8 claN operate quite • 1trongly in the Eaat aa in the Weet;
and it will be the etrongeet poeeible.proof of the influence of the Aga o't'er the
Khoja community, if he ultimately succeed, in inducing them to abandon the
long-eetabliabed and oon't'enient practice of celebrating their marriages before
the Suni Kd.zil.
Aa to the argument that, though '' Ta.kiah " might account for auch compli.
ance with Suni praotioea in timee of penecutioo, yet it could not 110COunt for
their continuance after the dread of peneoution had dieappeared-thia reuon,
ing can haTe no force with thoee who coneider the all but omnipotent power
of uae and wont in the ordinary ueagee of aocial life, and who rellect on the
long continuance of practicee and inetitutione (and that not only in the Eut)
long after the reuon of their llnt eetablilhmenl, and all euJllcient ground, for
their perpetuation haTe puaed away.
It appean to me that, in the prellt'Dce of such oc.nsideration1 aa th81B, the

eetabliehed fact of the perforU1ance by the Khoju,from the beginning, of their
funeral and marriage rite. after the fuhion of the Sunia, baa no appre-
ciable bearing on the queetion u to what, from the be1inning, were their
religion• opinion• and tenets.
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-
1866. It is much the aame with the inference endeuoured to be drawn from the
- ; ; - - ~ erection and maintenance, since A.D, 1822, of the Suni mosque in the old
c1.-:!:~EN:~L Khoja burial-ground of Bombay. That this. mosque wu dedicated u a Suni
u: relatione mosque (though without the usual Suni dedicatory in1Cription containing the
M DAYA' names of the first three caliphs) and that it wu used. and attended by a
i.:::,::.,,":s
.oertain limited portion of the Khoja comnumity of Bombay, for the celebra-
v. tion of worship in Suni form-is quite clear upon the evidence. But thia
MW::AD does not touch the question, even of the religiom belief of the bulk of the
HusENI Khoja population of Bombay frolll 1822 to 1864, fo.r leaa \be sole question
.&JfD OTHEJt& with which this enquiry is really concerned, via., the religioue belief .of .the
Khojaa in their origin aa a distinct community,
Thie mosque wu built in the old Khoja burial-ground, and by the great
majority of the Khoia community of Bombay it waa only used, u the evidence
clearly shows. for funeral purp01es, The small minority-the p&rty of the
relaton and plaintifft-the wealthy Khojll.1 of Bombay who for a couple of
generations or so have adopted the respectable and orthodox faith of the
Bunis-they, indeed, habitually frequented thia moeque for the purpolBI of
religioua wonhip. But the maas of the Khoja community of Bombay still
continued, 88 of old, to worship in their Jaflldt Khdnd, where, 88 the evidence
showi,, they prayed in Shia faahion with their arm, to their lidBB, bowed
their beads in prayer on moulds made of the duet of Kerbela, occuionally
partook of water mixed with that sBCred earth, and three t.imes a day recited,
in the Dowa, the long bead-roll of the anceston of their • Murshed,' Aga
Khan, the hereditary chief of the Iamailis.
As, for funeral purposes, the whole community used this moeque and
also the services of the officiating Suni Moola, it was but natural and
reasonable that that functionary should be paid (as in fact he wa.ir paid) by
the Mukhi and Kamaria on account of the JanuU; but from such a payment
as this it would be preposterous, in the face of such facts as have been e11tab-
lished by evidence io this case, to infer that the Suni form of Mahometa-
nism was or ever had bcoa the religion of the Khoja community of Bombay.
From the above circumetauces, then, (i.e. performanoe of funerals and
marriagea in Suni fashion), and the e:ristence for 42 years in Bombay
of a Suni mosque attended by a part of the Bombay Khojaa, no clear in-
ference can be drawn 118 to the original religious opinions of the Khoja
community. There are, however, oiher practice.ir of a relii,ioiu, ,iat11re, jrm11
the obaen..a11ce or non-olmn-ance qf which by the Khojda tl1e inftrencc a, to
their relii,io11,11 opinion i& almoat irremtibly Btrong.
Take the Hadj, or pilgrimage to Mecca, for instance. If there be one

religious duty which more than any other is regarded as imperative on all
Sunis haviug the means and ability to fulfil it, it is the Hadj or pilgrimage
to Mecca. Once, at least, in his life every Suni who co.u afford to do so is
bound by every principle of religious duty to visit tho spot, which to Sunis
is the most sacred in the whole habitable globe. 'J.'hat the Sunis of India
are not less zealous than those of other parts of the East in the perfonnance
of this duty, ia clearly proved by the vast stream of pilgrims which, exce1,t
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BOMBAY HIGH COURT RIPORTS. 359
d~g the prenlence of the eouth-westem monsoon, makes its wny from 1866.
all the large ports of India acroea tbe Arabian Sea to Jcddah, and thence
to Mecca. THE ADVo-
CATKG.ENER.lL
Now, wh~t ill the case with the Kboj1111 f Why, the evidence is, that not n relatione
more than eight or ten Khojas in all can be named who from any nn.rtof M DAYA'
• ,- UHAIIJMAD
India and the East have ever made the Hadj or pilgrimage to Mecca ; and AND OTH&Ra
yet these SIi.me people, according to the same evidence, go in hundreds, nay "·
· t b ouaands, to Kerbela, a pilgrimage quite as difficult, coeUy, nnd danger. llfUHAJIOl!D
1n B USEN
ous as that to Mecca, and which, though regarded by Sbias as a pious duty, Hu11ENI
ia reg.ded byi:Junis as a euperstitioas act of folly, even if it be not a AND OTB&as.
positively prohibited and unlawful practice.
And, then, what is to be said of the prayera performed three times a day
(not live times) in all the Jamal Khdn<h of the Kbojas, and with ar1De held
down to the sides, not crol!Sed on the breaet ; of the prostrations on moulds
made of the dast of Kcrbela, the solemn drinking, at stated anniversaries, of
water mixed with the dust of Kerbela; of the refusal to mingle in the Suni
mummeries of the Moburrum, the mourning at home or in their Jamdt
Khd1uu overthememory of Hoossein, the "Shehad" or martyr-the martyr
done to death by those whom the l:iunis venerate as the lawful caliphs or
ancceasors of the Apostle of God ?
The people who do these things-the people who omit to perform the
Hadj bnt who crowd to Kerbela-the people who are zealous for the perform-
ance of Dll the most dil!tinctive religious practices or the Shias,-these
people are not and cannot be Sunis ; they may be either Shias, or Shia
lmami lsmailia; and the evidence in this case clearly shows they are the
latter.
One final proof may be adduced on this point, and that is the practice of
making pilgrimages to Durkbaua-a practice which, as baa already been
shown, was habitual with the Khoja.s from the beginning. Until Aga. Khan
left that country in 1839-40, these pilgrimages were always made to some
place or other in Paaia, the country in which, from the fall of Alamut till the
flight of Aga Khan, the hereditary chiefs of the Ismailia have throughout,
as a rule, resided. Now, if there be one thing more than another which a
Suni religiously avoids, it is the setting his foot, without compulsion, on the
heretical soil of Persia. A striking illustration of this is to be found in a
, work which I have always regarded as one of the most instructive and en.
tertaining in the whole range of Oriental Literature-" the Autobiography
of the .Emperor Baber," the celebrated conqueror and founder of the Mogul
dynasty (1 vol. 4to., London, 1826) translated partly by Dr. Leyden, but
principally by Mr. William Erskine, the latter the son-in-law of Sir Jamea
llackintoah and the father of the present occomplished member of the
Bombay Council, the Honourable Claud ins Erskine. lu a note to the 244th
page of that most interesting work Mr. Erskine writes as follows:-" An
Usbck Moola (from Bokbara) whom I consulted" (in Bombay) " had just
made the pilgrimage to Mecca. On my enquiring if he had passed through
Persia, he esprcBBCd great horror. I found that, to avoid touching the soil
of Peraia, he had gone frow Bokhara to Khuk.an, thenco lo C~hiar, thence
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360 BOIi.BA Y HIGH COUBT UPOBTS,
1866. to Astrakhan, thence by the Crimea to Con,tautinople. He then went by

,.._ A - to Aleundria, and joined the caravan of Cairo. I eaw him in Bomba7
......s DVO• whither
cu-xGBNKRAL • ·'-'- g t he Had"J· He wu '"be
he had come from Jed d ah after m........ • n
t.:i: rdatione preparing to return home by Delhi, Lahore, and Peehawar in order to avoid
DAYA' coming into oontact with the Peraian ShiAL"
MUJLUO[AD
And yet the Court ia asked to believe thata community which W'U from
ABD OTHBR.I
Mua:~w the beginning in the habit of making pilgrimages to various part.a of Persia
A.N~=~
HuaKN was alao from the beginning Suni, and this, too, though the object of thoee
pilgrimages was to pay devout homage t.o the hereditary Imam of the
Ismail.ii, a personage whom all orthodox Sunia regard as a very chief and
prince of herette1.
It is UDDeceeeal'1 to add anything more. The clear conclusion at which
I have arrived upon a full consideration of the evidence before me ia thie-
t}ial, the Klwjda ne11er were Suma, but tAal, from the beginning tliey have 6eell
and (with the eueption of the rtlatora and plaimifa and their /ollotDtr, m Bom-
bay) ,till a~ Shitu q/fk Imamilamd.ili persuasion.
And tbia in effect dispoeee of the whole cue against the relatora and plain,
tifl1. Fully conceding to Mr. Scoble the authority of the c... and dicta he
oited on this point, it appears to me that they are not applicable to the piwmt
cue. Thia ia not a cue in which the plaintil! ha, mistaken hie remedy, bnt
one in which he hu failed in hie proof. The relaton, and plaintilf• in thi,
cue are qnit.e right in the etand,point they haYe aaswned, vis., that the Kboj,
l60t ie a community held toge«.her and diatinguiahed by certain religious opin·
ions. Where they hne failed, ia in proving that theee religioue opinion, aN
thoee of the Suni Mahometane. The Court, ia now in a poeition to give an
adequate deaoription of the K.hojl. sect; it ia a aect of people u,ho.,e ancutot1
totre Hindu, in origin, which wa., contltrled to and ha, tli.rovghotu abidt.d iA
IM/o.UA of the Shia /mdmi lamd.ilia, and which 1u,,a alWGya btM o.nd ,till i,
bound by tiu o/ ,piritual o.Utgia.nce to the heredito.'1! /mama q/ the InnaiU..
In order to enjoy the full privilegea of membership in the Khojll. com,
munity; all the terms of the above deacription must be oomplied with ;
a penon, more especially who it not a Shi'- of the !ml.mi Iami.ili penu,.-
lion, ii, to uae, with a reveraed application, the language of the 5th pan.-
graph of the prayer, "not entitled unto, nor onght; he to have any ahare
or interest II in the public property of the Khojl. community "or any voioe
in the management; thereof. 11
Mr. Anstey wu quite right when he aid " 11 the Klwjda are 811ni,, w
if tliey art not Suni,, toe fail."
(the ~latora and plainttfa) ,uccttd;
In fact, there ii no ground left upon the evidence on whioh the relaton
and plaintufa can aeek relief from thie Court, either in ite oharit;able or an7
other jurildiction.
Looking, for i.mtanoe, at the Khoja community of Bombay in an td1'CC1,,o

tional point; of view, no cue for the interferenoe of the Court hu been made
out.
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BODAY HIGH OOURT RBPORTS, 861
No deed, writing, or ecrap of paper of any kind waa produced 1howi.ng 1866.
any gifte of property to the Khojll. Jamdt of Bombay with an ulterior THB A.Dvo-
deetination to be applied in the eetablilhment or maintenance of 1choole CATBGES&RAL
for the public uae and benefit of the whole commllllity. e:i: relatione
DAYA'
Bat waa there any proof of an implied traet of this kind-any proof of MuHAJDU.D
the exi.ateace, in fact, at any time of any school maintained oat of the AND ~
public moniee of the oommunity for the general educational purpoae of the Muu.unu.D
communi-? · Husu
•:, HUSENI
No proof. of thia kind waa ol!ered ; there waa, m ' deed, an d there etill 11,
' AND OTJBBS,
a echool held in a building adjoining the Ja.mdt Klldnd, and open, apparent-
ly, to all children of the Khojll. oommllllity; but the evidence ia that this
1ehool was origiaally establilhed, and haa. been throughout maintained, by
the prioate mlllliftcence of Mr. Kuaambhll.i Nathubhll.i and three or four
other wealthy Khoju of the party of the relatora and plaintiff's. Mora•
over, aa to thla school, it waa clearly and positively stated by witneu
No. 1 that the relatore and plainti.ft'a had no oomplaint whatever to make.
Then look at the Khoja community of Bombay aa an ek.emoay,w.'71 insti-

tution, and the result ia the same. Here, again, there ia no proof whatever
of there ever having been any expreu gifts in truat for the poor of the oom,
munity; but there ia proof that the poor of the community have, in fact,
long enjoyed a certain amount of maintenance and support at the public
ezpenae. They have been allowed free quartere on the ground-ftoor of
the Ja.mdt Khand. and eome other public buildings belonging to the Jamat;
they frequently receive relief in the form of food and clothing ; and they
are buried in the Khoja burial-ground at the public expense.
But the evidence ia clear and decisive that, whatever benefit in the way
of MID!' and maintenance the poor of the Khojt\ community have ever
enjoyed, they enjoy still in aa ample a measure aa at any former time ;
and there haa been no kind of proof that theae benefits have been in the
alightest degree interfered with by any act or om.ieaion of the ftnt defendant
or hia adherents.
It remains, then, only to consider the prayer for an injunction. This,
again, ia to a great extent, if not entirely, diapoeed of by the ooncluaiona
already drawn from the esyidence in thia cue.
In ao far, for instance, aa it aeeke to reetrain the first defendant from

interfering with the election of ltfuld,.i and Kamoria, the evidence clearl7
eho'WII that it ia, and throughout haa been, the cuatom in all the Khoja
Ja,mdta to conault the " Munhed" or hia agents before appointing either
of theae important functionariee. Considering the relation, now fully as-
certained by the evidence, in which the hereditary head of the Iamailia, the
SirUr-B,heb, haa alwaya atood to the Khoj, commllllity, and considering
that the Jfu/d,.i and KMMria. (aa the evidence a1eo eho'WII) are the oftlcera
apecially charged with collecting and admin.ietering the moniee raised on
the Sirkar-Saheb'1 account, 1 can 1ee no ground whatever for an injunction
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1866. in the ciroumatances-(a.nd nothing more is proved) that theae officers are
THJr: Aovo- not, as a rule, .appointed without consulting either the Murshed, or, w hia
CATKGENBRAL absence, his lawfully constituted agents.
ex D~~it,>ne As to that part of the prayer for an inj'!lnction which aska the Court to
MUHAMMAD intervene between the Khojas who on the one side are ready to make, and
AND OTll&RS the Aga!. who on the other aide is willing to receive, voluntary offerings
MUHA~D and customary contributions, it will not bear, and does not require any
HuszN serious discuSBion.
HUS&NI
AND OTH.IBS.
As we have already seen, the great body of the Khoja.s, uuleBB they
thought they were making payments to and for the benefit, primarily, of
their Sirka.r-Siheb, would not contribute a single pie towards the public
ei;pensea of the community. To interfere, therefore, in the way desired,
would be simply, even if such Bll interference could be carried out, to
reduce the Khoja!. community, as a public community, to insoh·ency. But,
virtually, it could not be carried out, and this Court has too much respect
for itself to issue an order of this kind, which would be a mere brulum
/ulmm, liable to almost infinite modes of evasion, and only enforceable, if
at all, by issuing attachment. against more than two-thirda of the whole
Khoja. community of Bombay.
If Government, indeed, should be of opinion, that the receipt of some
.£10,000 a year by Aga!. Kh(l.n, while continuing to reside in Bombay, from
the Khoja!. communities dispersed through India and the East, is, as auggest-
ed by the learned leading counsel for tl:ie relators and plaintiffs, on political
grounda objectionable, they have the remedy in their own handa. But;
till they have applied such remedy (and I venture to think it extremely
doubtful if they ever will), either by removing Aga Kha!.n from Bombay, or
prohibiting such payments being made to him while he remains here, I
can see no ground on which the making of such payments on the one side,
or demanding them on the other, can be made the subject of an injunction
by this Court.
The only point remaining, relates to the subject of out-caating or excom-
munication. Now, the evidence shows that this extreme and ultimate
mode of punishing a violation of the conditions of caste-membenhip,
although, doubtless, never, in fact, resorted to except with the concurrence
and by the direction of the Spiritual Head or Murshed of the Khojas, is,
in form, the act of the whole Khoja!. community in Ja-nm assembled.
Allnrukhia!. Suma!.r, the M1d:hi of the Bombay Jamcit, was mu.eh pressed in
cross-examination as to the point, whether, if the Jamal considered a direc-
tion by the Aga to turn any Khoja!. out of caste unjust or ungrounded,
they would refuse to comply with such direction. The witness had conai•
derable difficulty in contemplating the possibility of such a case (as much
difficulty as a strong IDtramontane Romanist might have in conceiving that
the Pope could possibly go wrong in any matter relating to the government
of the Church) ; but when, at length, he had been brought to entertain the
hypothesis, his answer was that, in such case, the Jamat would first
protest, and, if that proved vain, would finally refuse to comply with a
direction to out.caste which they felt to be unjust.
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No doubt in severtJ paaaagea of his answer the firatdefendant pitches his 1866.
elaims pretty high. SpiritutJ heads of communities are not generally THE -A~~
remarkable for the modesty with which they state their pretensions. But cATElh:NKRAL
in the 30th paragraph of his answer he sets forth his claim in accorclance ex rtdalione
with them em which excommurucat1on
• od. • . . appears upon the evi"dence to Mnu:11MAD
DAYA'
have been uniformly carried out in the Khoja community. In that para- AND O"rIIER.'1
graph, after stating that " he claima to be and is the Spiritual Head of the , 1 . v.
Khojas, " he goes on to say "tbat allKh oj ....
,_ res1Btmg
. . my d octrmes
. " (,.e.,
. J.> t:llAM)UD
Ht:SEN
the docuinea of the Shia Imami Ismaili faith) are liablt> to be expelled H r~t:x1
"at my request by the Jamdt from the Khoja caste." AND OTJIEll~
It iaquite clear that in every community having to a certain extent a

religious character-and such the evidence shows to be the case with the
Khoja community-there must be vested an ultimate power, in cases of
obstinate refusal to complY. with tbe defined conditions of communion, to
deprive rec11811Dts of the privileges of communion,-in other words, to
excommunicate them ; nor do I see how such a power can be more properly
exerciaed than by the act of the whole community on the suggestion and
hy the direction of its Spiritual Head. That Aga Khdn is the Spiritual
Head of the Khojlls hu, in my jndgment, been clearly made out by the
el'idence; and to say that as such, he is not to have a potential voice in
determining who, on religious grounds, shall or shall not remain members
of the Khoja community, appears to me entirely unreasonable.
In fact, in every community, whether of a religious nature or uot-
whether Church, or Chapel, Caste or Club-there must, as requisite for
the preservation of a community, and as inherent in the very conception
of a community, neceuarily exist a power-not, indeed, to beexertecl except
in extreme caeee and on justifying grounds-of depriving of the priYileges
of membership those who persistently refuse, after due notice and warning,
to comply with those aecertained conditions of membership, to which, by
the very fact of being members of the community, they must be held to have
given an implied, if not an expreae, consent.
AA it does not appear to me on the evidence that any other or greater
stretch of power than this haa ever been exerted by the Khoja community
nuder the direction of it.a Spiritual Head, I must decline to grant the in-
junction on thia ground ; nor ia there any ground whatever on which the
injuncuon, as prayed, ought, in my judgment, to be allowed,
Upon the whole case, therefore, the decree which the Court must pro,
nounce ia quite clear. It ia-
That this suit be dismissed as againBt the first defendant Hie Highness
Ap Khan, as againBt AllarukhiaSumar and his co-answering defendants,
as against ANO Gangj, with costs M to all the said defendant. to be paid
by the relators and the plaintiJf&
AA against the other defendants on the record, not in the same interest
as the defendants above named the decree is that the auit be dismissed but
without coeta.
B 622-:t
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APPENDIX TO VOLUME XII.
THE KAXJRA LA/D ASSESS1\IENT OA1 E.
FROM THE DI 'TRICT COURT, K,LTA.RA.
~UIT No. l OF 1 71.
YYAKU.'TA BAPUJI.. .. . . ............ Pfoi,tii.ff.
'l'HE GOYER... TME.NT OP IlOMBAY ...... .. Defe1ul,w/.
------- ~--
DECIDED BY
WES11ROPP, C.J., AND WE T, J.,

lst May 1875,
IN THE HIGH COURT OF BOMBAY, EXTRAORDINARY
ORIGll AL CIVIL JURISDICTION.
iSomba;:
T THE GOVER MENT CENTRAL PRESS.
1876.
[EXTRAORDINARY ORIGINAL CML JURISDICTION.]
From the District Court, Kanara.

Suit No. 1 of 1871.
VYAKUNTA BAPUJI, Inhabitant of tho village' .May I.
of Bad, in the taluka of Karwar ...... •.. Plaintiff. 1875,
vs.
The GOVERNMENT of BmrnAY ••• •••• •••••••• Defendants.
Muli-Lancl Revenue-Kanarri-Lan{l Tenure-Bombay Act VII. q/'1863

-BO'ITlbay Act I. of 1865-B())nbay Regul{ttion X VII. of l8'rl,
The Mulavargdar, a II.older of land on M11li tenure in Kanara, enjoys an
hereditary and transferable property in the soil, and eaunot be onsted so
long as he pays the land revenue assessed upon his land.
In the absence of special terms to the contrary, Government may en•
hance· the land revenue payable in respect of land so held.
The history of the Land Revenue in Kann.ra narratod.
The question of the cultivating rayut's property in the soil considered
both with reference to the Hindu and the Muhammadan Law.
Similarity of the Kirasi, Kaniyatchi, the Janmakari, the Swasthyan, and
the Muli tenures mentioned.
The rule of the Hindu and Muhammadan as well as of the English Law
ia Nullum tempu, occurrit regi.
The extent to which that maxim bas been restrained by legislation in
the Presidency of Bombay considered.
Construction of Bombay Act VII. of 1863, Section 21, and Bombay
Act I. of 1865, Sections 25 and 49.
The revenue system of Akbar under .Todar Mul, and of Aurangzib
diacuaaed.
If there be no specific limit, either by grant, contract, or law, to the right
of Government to assess land for the purpose of land revenue, the Civil
Court. have no jorisdiction under Bombay Regulation XVII, of 18'r7,
Sections 4 and 7, to entertain a suit to rectify the assessment made by the
Collector or other competent revenue authority.
THIS case came on for he11,ring, upon the 18th of Jannary

1875, before Sir Michael Roberts Westropp, Chief Jus-
tice, and )fr. Justice West, in the High Court under its Ex-
11 117-a
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j
J!()llBAY HIGH COURT ~11:PORTB,
1876. traordinary Jurisdiction. The arguments of counsel extended

vv.uu1nA over fourteen sitting days, viz., the 18th, 19th, 21st, 22nd,
B"';.un 25th, 26th, 28th, 29th of January, and the 1st, 2nd, 4th, 5th,
GoVDNBo mNT 8th, and 9th of February 1875.
or IIBAY.
The counsel, who appeared for the plaintiff, were Mr.
S t ~ . Farran, Mr. Branson, and Mr. Budrudin Tyabji.
The couusel, who appeared for the defendants, were the
Honourable A. R. Scoble (Advocate General), Mr. Latham,
Mr. Tyrrell Leith, and Mr. Hart.
The oral evidence had been taken, under commission
from the High Court, by Mr. Spens, District Judge at Kar-
war, on the 23rd, 24th, 25th, 26th, ~7th, 28th, and 80th
of June, and the 1st, 2nd, 3rd, 4th, 5th, 28th, and 29th of
July 1873. Mr. Shaw Stewart, formerly Collector of North
Kanara, had been examined de bene esse, on behalf of the
plaintiff, before the Prothonotary, on the 81st March 1878;
and again, before the Deputy Registrar, on the 6th Novem-
ber 1874.
The documentary evidence, prepared for the cause, was
~oluminous, and, a considerable portion of it being in the
vernacular, occupied a long time in translation. It chiefly
consisted of an octavo volume of letters relating to the
early revenue administration of Kanara, printed in 1866
for the Government of Bombay, and three volumes in folio,
containing a great variety of documents, printed at the 1
close of the year 1874 for this case. The 1st folio volume
(printed in 1820 for the Court of Directors) containing a
selection of Revenue and other Records at the India House,
Gleig's Life of Munro (3 vols.), Mountstuart Elphinstone'e
History of India, and Wilk's History of Mysore, were ex-
tensively referred to. Several documents in manuscript
w:ere likewise given in evidence.
The object of the suit was to dispute the right of the
Bombay Government to enhance the assessment charged on
the plaintiff's lands in Kanara.
The facts sufficiently appear in the ju.dgment.
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JIOVBAT HIGH COURT REPORTS. 3
Farran, on behalf of the plaintiff, contended that Bombay 1875.

Act I. of 1865 was not meant to apply to lands held in pro- VuKu;:-
priet.ary right by the subject, and that therefore any en- BA!~JI .
hance ment under that Act ot the assessment charged on GovxBoRNlllBNT
or lllBAY.
muli lands in Kana.re. was iltegal. That the ancient land tax,
(known as the sltist,) together with the greatest exaction .Argvfflfflt.
enforced by any Government prior to the British, (known
as the shamil,) had been adopted in the year 1800, by
the British Government, as the maximum limit of assess-
ment, under the name of tlie ka<lim beriz. That tlie
Crown had no ownership in muli lands in Kanara., where the
Mulgars, ever since tha British occupation of Kana.re., had
been treated as absolute owners of their muu vargs, subject
only to the payment o~ the shist and shamil, and that there-
fore the attempt to apply the· provisions of Bombay Act I'.
of 1865 to muli lands in Kanara was tantamount to an
attempt to confiscate private property, which tbe Bombay
legislature had no power to do. That on a true construction
of Bombay Act r. of 1865 the plaintiff's lands, being entered
in the registers as liable only to the shist and shamil, must
be considered as land" partially exempt.,.,. That the Act, not
having been originally intended to apply to Kana.re., must;
be read mutatis mutandis, its spirit being to record and to
reta.in e-xisting settlements. That the right of the Vargdars
of Kana.re. to sub-divide and seH their vargs had always been
flistinetty recognised by the Ge>vernment, and that any con-
struction of the Act other than that now contended for would
make of it an act of confiscation such as would be ultra vireR
of the Bombay Government. That the muli lands in Kanara
were private property, as evidenced by tlie report of Major
Munro, dated 81st May 1800', and by the existence of Mul-
gaini· tenants at a fixed rent in perpetuity ; for inasmuch
as the Mul'ga'r could not raise the rent of his Mul-gaini
ten&nt, if the Government assessment were raised on his
own lands, he would virtually be deprived of his esta.~
That the Government of Madras frequently expressed an
intention of introducing a permanent settlement lower than
the shist and sltamil, but never hinted at the possibility ci
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BOKBAY HIGH COURT R'IPORTS.
1875. exceeding that limit, thus virtually admitting that the shut
VYAKUNTA and .shamil together formed the maximum assessment which
BA~~Jx they were entitled to charge. That to exceed that limit
OovBoBRNllENT would be a confiscation of private property to effect which
01' MBAY,
an Imperial Act would be necessary; but Bombay Act I. of
.Argument. 1865 was not intended to interfere with existing rights, and
therefore the local Government had no authority under that
Act to raise the rate of a.ssessmen t in Kanara. That Mr.
Blane in his Report of 20th September 1848 distinctly
asked the Government whether they were pledged to the
existing order of affairs, and recommended them, if they
were not, to order a survey ; but no survey being ordered,
the inference was that the Government were pledged to the
then e:risting order of things, that is to the tltarav settlement
wherever it had been introduced, and to the kadim beriz, or
shist and shamil, wherever it had not. That to succeed in
their contention the Government must show that they have
the _power to alter the fixed assessment over the whole of
Kanara. That even if this assessment were in the first
instance fixed without authority, yet the Government had
by long f:\Cquiescence recognised it as binding on them, and
the plaintiff had thus acquired a prescriptive right under
Bombay Regulation V. of 1827 which had been extended
to Kana.re. by Bombay Act III. of 1863. That the only
increase of revenue expected by the Madras Government
was that to be gained from the extended cultivation of
waste lands, and not from an increase of the ~sessment on
lands already under cultivation. That in the debates on Act
I. of 1865, previous to its passing, the word Kanara. never
once occurs, whence it was to be inferred that the Act was
not intended to apply to Kane.ra. That so to apply the Act,
was ultra vfres of the Bombay Government, for the Act
empowering local Governments to legislate, provides that the
laws to be passed by them are to be for the peace and good
government of the country, which an Act of confiscation
cannot be said to be. That this Act as applied to Ka.nara
was opposed to the spirit, if not the letter, of the Queen's
proclamation of lst November l 8ti8. But that, whether
··•
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:BODAY HIGH COURT RBPORTS. 5 ••
ultra vires or not, the .Act must be held from its title to be 1875.
intended not to interfere with existing proprietary rights. VvAKUNTA
In the course of his argument he cited principally Major B~.uJI
Munro's letter to the Roard of Revenue, 31st May 1800; GovBoERNXKNT
OF .M.BA.Y.
Letter of the Board of Revenue to the Governor General,
28th August 1800; Reply of Governor General to Board of .Argummt.
Revenue, 20th September 1800; Mr. Harris' letter to the
Board of Revenue, 27th August 1817; Major Munro's letter
to the Tahsildar of the Taluka of Sa.da.shivgad, 4th January
1800; Major Munro's proclamations of 26th and 27th March
1800; Mr. Read's proclamations of 12th July 1800, 10th
June 1801, and 6th September 1805; Mr. Harris' procla-
mation of 6th June 1819; Major Munro's report to the
Board of Revenue, December 1800; Major Munro's letter to
the Collectors of Kanara, 9th December 1800; Mr. Road's
report to the Board of Revenue, 1st January 1814; Minute
of the Board of Revenue, 28th April 1817 ; Latter of Mr.
Harris to the Board of Revenue, 27th August 1817; Reply
of the Board of Revenue to Mr. Harris, 30th October 1817;
Correspondence between the Board of Revenue and Mr.
Harris, and orders and minutes of the Board of Revenue
extending _from 12th ·October 1817 to 28th July 1819;
Resolution of the Board of Revenue, 15th January 1850;
Resolution of Government, 5th March 1850; Report of Mr. ·
Harris to the Board of Revenue, 2nd August 1820 ; Extra.et
from the Proceedings of the Board of Revenue, 28th Decem-
ber 1820; Mr. Harris' report to the Board of Revenue, 14th
June 1821; Mr. Babington's letter to the Board of Revenue,
24th August 1825 ; Extract from the proceedings of the
Board of Revenue, 15th September 1831 ; The 5th report of
the Special Committee of the House of Commons ·1812;
Mr. Stokes' report to the Board of Revenue, _12t.h January
1833; Extract from the proceedings of the Board of Rev-
enue, 11th January 1836; Memo. by the Head Sheristedar;
Extract from the proceedings of the Board of Revenue, 16th
November 1843; Extract from the Minutes of Consultation,
2nd January 1847; Mr. Blane's report to the Board of Rev-
enue, 20th September 1848 ; Extrad £row the Proceedings
Digitized by Google
6 BOKl!AY HIGH COURT REPORTS.
i875. of the Board of Revenue, 8th May 1851; Mr. Ooldingha.m's

vvuuNT.&. minute on Mr. Blane's report, 5th November 1850; Mr.
BA!~11 Mii.ltby's letter to the Board of Revenue, 22nd July 1839 ;
GovuNMBNT Calcutt.a Review Vol. 21, 2nd No. for 1853, p. 856 et seq.;
OJ' BoMBAY, 1
Buchanan s Journey; Letter from Mr. Dalyell to Mr. Sim,
.Al'fl1'ment. 2nd April 1862; Oollector of Trichinopoli v. Lekkamani
L. R. 1 Ind. Ap. 282; and Letter from Mr. Shaw Stewart
to Mr. Havelock, 24th July 1871, with its anne:mres.
He was followed by Branson, who contended that Act I.

of 1865 was not intended to apply to est.ates held in proprie-
tary right, but, as shown by the title, only to estates held
by the tenants of Government, the Aot itself drawing a
distinction between occupants and owners, and that it was
only with regard to tenants that the Act had any assessive
force. That even if Act I. of 1865 did apply to the Mul-
gars of Ka.na.ra, still they could not under that Act be
assessed without limit, inasmuch a.a the power of assessment
is by e. 25 limited to " such an amount as is in accordance
with the previous pl'&Ctice," and that there was an agree:.
ment, between Major Munro, as the implicitly trusted a.gent
of the British Government, and the landholders of Kana.re.,
that the assessment should not be increased beyond the
shist and shamil. That until the present proceedings the
Government had never questioned the authority of Major
Munro to make such an agreement, nor even the fact of
such an agreement having been made, and no attempt had
subsequently been ma.de by the Madras Government -to raise
the assessment beyond the shist and shamil.
He cited principally Major Munro's letter to thi} Board of

Revenue, 31st May 1800; Major Munro'·s report to the
Board of Revenue, December 1800 ; Major Munro's letter
to the Collectors of Kana.re., 9th December 1800 ; Major
Munro's letter to the Board of Revenue, 28th June 1800,
and Sub-Oollector of Oouiba v. Ganesh I O Bomb. H. C. R.
216 A. C. J.; and the Coller.tor of K~nara v. Kanapu, Mad.
S. A. Sp. Ap. 9 of 1831, decided on 21st November 1832.
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BOVBAY HIOH COURT Rl:POR'l'B, 7
Scoble, A. G., for the defendants, argued that Bombay Act 1875.
I. of 1865 became applicable to Kanara by virtue of the VuxuNu
Acts and proclamations mentioned in the case of Reg. v. &!~n
V yankatsvami, (reported a.t 2 Bomb. H .. C. Re~. 106,) and ~~~~
that on the face of it the Act was evidently mtended to .
apply to the whole of the Bombay Presidency. That the .drgvlllfflt.
Stat. 24 and 25 Vic. C. 67, S. 43, shows what Acts are
ultra 'Vires of the local Government, and that it must be
presumed that this Act was not so, from the fact of its
h1'ving received the sanction of the Governor General on
6th January 1865. That there was no force .in the argu-
ment that the nature of land tenure in Kanara is such as to
render Bombay Act I. of 1865 inoperative in that province,
for a Mulga1· is admittedly a holder of land bound to make
a certain payment to the Government, in default of which
his land is liable to be sold. That Mulga.rs come under the
definition of " superior holders " as contained in Bombay
Act I. of 1865, there being nothing in the Act to prevent a
"superior holder" being also an" occupant"; whereas the
term " owner " under the Act means an absolute owner or
inamdar, not liable to pay any revenue at all. That the
definition of" alienated villages '' in Bombay Act l of 1865,
contemplating a documentary title, would not apply to the
lands of the plaintiff, who had produced not a single docu-
ment of title. That even assuming it to be possible for any
prescription against taxation to exist, Sec. 25 of Bombay Act
I. of 1865 destroyed the force of all the argument as to the
plaintiff's prescriptive right. That Sec. 3 of Bombay Act I.
of 1865 confirmed existing Survey Settlements of land rev-
enue, but there never was any Survey Settlement made by
Major Munro confirmed by the Governor in Council, while
Sec. 30 provided for a fresh survey and revision of assessment,
and Sec. 4 empowered the extension of the survey to Ka.nara,
That the rights of the M1dga1· of Kanara were neither more
nor less than the rights of the Mfrasdar of the Deooan,
described by Mr. Grant Duff as a tenant, the word Mulgar,
derived from mul, a root, meaning in fact a rooted tenant,
one who might be said to be adse1-iptus glebce, and the terms
Digitized by Google
8 BODAY HIGH COURT RIPORTB.
1875. mulgar and mirasdar being capable of being used inter-

VvAKUNTA changeably, a.s appears from the derivations of those words
B"!.un in Wilson's Dictionary. That the lands of the plaintiff being
OoVBR!OftmT situate in Soonda., and not in Ka.nara proper, such of his
OJ' BoJIIBAY,
· arguments were not applicable to the case as were based on
Argument. expressions contained in reports and minutes referring only
to Kana.re. proper. That Major Munro's powers, thou.gh
great, were not absolute, nor did he himself consider them
as absolute, or his acts binding on his successors in office.
That by the term " private property " Major Munro meant
not absolute freehold, but pr-0perty held in right of payment
of the revenue to Government, and that by "fixed'' he meant
not" unchangeable for all time," but " not subject to con-
stant fluctuations," as appears from his use of the word "per-
manent '' as distinguished from " fixed '' ; or he might have
meant "uniform " as distins-uished from "arbitrarily ex-
acted from each landholder according to his ability to pay."
That the survey assessment now sought to be imposed
a.mounted only to 15 per cent of the gross produce, or one-
half proportionately of that imposed by Major Munro.
That the shist was fixed, under the Hindu rule, in A.D,
1618, and all subsequent additions thereto, whether by Hindu
or Muhamma.da.n rulers, ea.me under the denomination of
ahamil, but ·none of these exactions were computed on the
value of the land. That Major Munro, on ta.king charge of
the province at the da.te of the British occupations, had in
view a. two-fold object: 1st, to get what he could for the
Company, and 2nd to conciliate the people by granting
them remissions from the exactions which he found had
been imposed on them by their former native culers, but tha.t
such remissions were only granted temporarily for the present
purposes of administration. That even if by the word" fixed"
Major Munro meant " permanent, " still his expressions
a.mounted only to suggestions, which had never been tl.dopted
by the Government as the basis of a. permanent settlement.
That had Major Munro ever promised the landholders of Ka-
nara that no addition should ever be made to the assessment
charged on their lauds, he would infallibly have reported to
Digitized by Google
BOKB.lY HIGH COURT REPORTS. 9
the Government the fact of his having made such a promise ; 1875.
bui no report to that effect existed, nor could it be shown that VYAKUNT.A.
the Government were ever aware of, or sanctioned, any such BAPUJl 11•
promise. That neither did MaJ·or Munro himself consider his GovuBoNKBKT
o-, llBAT.
successors bound by his acts, nor did his successors or the
Government consider themselves bound by his expressions Argunwmt.
of opinion. That what the policy of the Madras Government
was appears from Regulations XXV. of 1802 and XXXI. of
1802, passed after the departure of Major Munro from Ka.-
na.ra. That Regulation XXV. of 1802, providing for the
introduction of a permanent settlement, never was applied to
Kanara and Soonda, nor were sanad8 of the kind contemplat-
ed in Sec. 3 of that Regulation ever issued in those districts.
That Regulation XXXI. of 1802 applied in terms to Kanara
and Soonda. That the case of Collector of Trichin<>poli v. Lek-
kamani (reported at L. R. 1 Ind. Ap. 282) shows that what
the Government reserved in those two Regulations was the
right to raise the revenue from time to time, and that those
two Regulations, being authoritative evidence of what the
opinion of the Madras Government was at the time they
were pa.seed, effectually disposed of the plaintiff's argument
that the Madras Government had then already empowered the
Collectors to introduce a. permanent settlement of any kind.
That this contention was further supported by the subsequent
passing of a Regulation (L of 1803) defining the powers of
the Board of Revenue, and another (II. of 1803) defining
the powers of Collectors. That a survey was necessary for
the satisfactory settlement of the assessment, because no
reliable revenue accounts had ever been kept, the persons
who actually kept them being those most interested in falsi-
fying them. That the whole shist together with the whole
ahamil was not considered the maximum limit in those
moganies into which the survey was introduced. That if
there had then existed any idea. among the ra.yuts that the
Government were not justified in settling the assessment as
they pleased, some trace of such an objection would have
appeared amongst the Government records of the period,
which, however, only show that the Revenue Board consi-
B 117-b
Digitized by Google
10 BODAY HIGH COUBT R:ll'OBTS.
1871S. dered it their duty as well as their right t,o regulate the
~~ assessment according to circumstances. That the conclu-
Buu.n
"· ·
s1ons, t o b e dra wn fr om t he d ocuments m
· evi"d ence 1n
· t he
';;':'~X:::.T case, were : 1st, that no permanent or maximum settlement
had been established by Major Munro either with or without;
.Argtttaent. the sanction of Government, who, so far as they adopted any
suggestions by Major Munro, adopted them only partially
and provisionally. 2nd, that the 888esament introduced by
Major Munro under the provisional sanction of Government
was departed from by his immediate successors, its principle
was departed from in ancient Kanara by the introduction of
the tarao, and in ancient Soonda by the introduction of a
survey, and the whole correspondence showed a desire on
the part of the Collectors to reintroduce Major Munro's
principle of assessment, giving to the Government a one-
third share of the gross produce. 3rd, that Major Munro's
assessment was based on false, fraudulent, and fa.lla.cious ac-
counts, which were furnished to him by interested persons,
and which were the only information he had. 4th, that the
survey assessment had been recommended from the first by
Major Munro, and his recommendation followed by all his
successors, the survey was introduced and partially carried
out in Soonda, and the Madras Government contemplated
the carrying of it out in North Kanara down to within two
years of the transfer of that province ro the presidency of
Bombay. 5th, that the Madras Government had done no-
thing to interfere with the paramount right of a Government
to fix such assessment as they please. 6th, that the Govern-
ment, in their dealings with the holders of land, took up the
same position as in correspondence with Government officers,
none of the mulpattas granted by the Government holding
out any intimation to the grantees that the assessment had
been fixed, but on the contrary expressly reserving to Gov-
ernment the right thereafter to introduce a permanent set-
tlement, which might be greater or might be less, and none
of the beriz pattas granted by Government professing t,o do
more than show the assessment for the current year, and
relating to muli as well as other lands. 7th, that not even
Digitized by Google
the transactions between the inhabitants of Kanara them- 187S.
selves show that there was amongst them any impression,. VYA1tUNT.&.
at the date of Major Munro's assessment, that that assess- BA!~n
ment would not be exceeded. 8th, that while the plaintiff GonBoRIOoBllT
01' JIUIAY,
-had produced not a single document of title,. but based his
whole claim~ be considered a mulgar on the fact of his .drgumeilt.
la.nds being entered as muU in the Government books, the
whole evidence went to show that the proprietary right was
in the Government, and that none of the lands come under
any of the exceptions in Seetion 25 of Act I. of 1865.
In the course of his argument he referred principally to
Major Munro's letter to the Board of Revenue, &lst May
1800; Minute of 31st December 1824 ;. Mr_ Harris' report
to the Board of Revenue, 14thJune 1821 ; Mr. Lewin's letter
to Mr. Babington, 5th September 1827; Major Munro's
letter of instructions, 1st February 1800; Regulations for
the Collectors in the Madras Presidency, Appendix 15 to
the 5th Report of the Special Committee of the House of
Commons 1812; letter Qf the Board of Revenue to the Gov-
ernment, 1st February 1800; Oleig's Life of Munro; Letter
of Government to the Board of Revenue,. 20th September
1800; Major Munro's letter to the Collectors of Kanara,
9th December 1800; Minute of the Board of Revenue, with
Major Munro's remarks, 28th April lSl 7; Extract from the
Proceedings of the Board of Revenue, 15th September 1831;
Mr. Blane's report to the Board of Revenue, 20th Septem-
ber 1848; Mr. Rea.d's report to the Board of Revenue, let
January 1814; Rajah Midtu v. Perianyagam, L. R. 1 Ind.
Ap. 209; Mr. Rea.d's report to the Board of Revenue, 19th
January 1874; Government to the Collector in Ka.nara, 20th
October 1817 ; Mr. Harris' letter to the Board of Revenue.,
27th August 1817; Reply of the Board of Revenue to Mr.
Harris, 30th October 1817; Mr. Harris' letter to the Board
of Revenue, 30th December 1819; Reply of the Board of
Revenue to Mr. Harris, 10th January 1820 ~Report of Mr.
Harris to the Board of Revenuf:', 2nd August 1820; Extract
from the Proceedings of the Board of Revenue, 28th Decem-
ber 1820; Mr. Harris' reports to the Board of Revenue, 14th
Digitized by Google
12 BOKBAY HIGH COURT RIPO'ITS.
1875, Jane l821, 17th June 1822, 17th June 1823, and 27th
VuxuNTA. May 1822; Letter from Mr. Cotton to Mr. Babington, 30th
BAl'U.JI
"· June 1825; Mr. Babington' s report to the Board of Reve-
GovnBon,:DT nue, 24th August 1825; Extract from the Proceedings of
o-, l1Ul4Y,
the Board of Revenue, 30th April 1827; Letter from the
Argumnat. Government to the Board of Revenue, 28th March 1828;
Letter from Mr. Lewin to Assistant Judge of Honore, 16th
August 1827; Letter from Mr. Babington to the Board of
Revenue, 15th August 1828; Memorandum by the Head
Sheristedar; Letter from Mr. Viveash to the Board of Reve-
nue, 31st August 1833; Minute of the Government, 16th
February 1836; Extract from the Proceedings of the Board
of Revenue, 20th March 1837 ; Minute of the Government,
16th May 1837; Mr. M.altby's Jummabundyreport of Fasli
1248; Extract from the ;Froceedings- of the Board of Rev-
en,ue, 16th November 1843; Mr. Reade's report to Mr. Blane,
6th September 1847; Mr. Blane's reports to the Board of
Revenue, 12th October 1847 and 12th October 1849; Mr.
Maltby's reports to the Board of .Revenue, 7th October
1850, and 12th February 1853; Extracts from the proceed-
ings of the Board of Revenue, 28th April 1853, and 7th
April 1856; Letter of Mr. Fisher to Mr. Newill, 9th Nov-
ember 1860; the following letters in MS., Board of Rev-
enue to Major Munro, 27th September 1800, Government to
the Board of Revenue, 1st November 1800, Board of Rev-
enue to Major Munro, 13th November 1800, and Board of
Revenue to the Government of Bombay stating that no
order had been made on the letter of 9th September 1819
(Exht. B); Sub-Collect-Or of Oolaba v. Ganesh, 10 Bom.
H. C. Rep. 216; and Ramsden and Dyson, L. R. 1 Eng.
and Tr. Ap. 129.
He was followed by Latham, who al'gued that the bal'den
of proof lay wholly on the plaintiff. That the Sarvey Ad
applies generally to the whole of the presidency of Bombay.
That existing rights were sufficiently protected by Sec-
tion 25 of that Act, but that it rested on the plaintiff to show
that he came, and how he came, within the provisions of
that section. That the evidence of the plaintiff's witnesses
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went principally to prove two points, 1st that muli lands in 1875.
Kana.ra. had been exempt.ed by proclamation from additional Vrau11TA
assessment, and 2nd that muli lands in Kanara. 'were by pre- B~~n
scription liable to one fixed assessment only, viz. ahiat. GovnBotoOMT
01' KB4Y,
That in support of the oral evidence on the 1st point 7
bulnamas bad been put in evidence, of which 5 on the ..trgumclll.
face of them admitt.edly referred only to wast.e lands, and
one appeared navel' to have been signed or promulgated,
while the last (Exhibit E) was evidently intended to have
only t.emporary application; for not only bad Major Munro
no power to make a permanent settleme1;1t, but in his letter
of 81st May 1800, written after the date of the last mentioned
kaulnama, he makes no mention of having introduced any
permanent settlement. That the plaintiff sought to establish
the 2nd point by the evidence of 7 witnesses, of whom 4
did not come from Soonda., and one bad no landed property
in North Kana.re., while none of them seemed to know any-
thing ~bout the history of the alleged permanent assessment.
That whatever assessment was introduced by the Hindu
rulers, both Hindu and .Muhammadan Kings seemed to have
added to it at pleasure. That if the British Government
succeeded to the rights of Tippoo, it succeeded to them all
in their integrity, and not only to the extent to which he
might have chosen to avail himself of them. That the
plaintiff's counsel had urged a 3rd point, viz., that the com-
munications between the Government of Madras and its
officers led to the inference that the Government had fixed
a maximum of assessment, but that it was perfectly mani-
fest from the statements of plaintiff's witnesses that they had
never drawn any such conclusion from the communications
of the Government to its officers, to which they could have
had no recognised access. That such communications were
private and could not be considered as_proclamations to the
people, even if some of the rayutB bad succeeded in gaining
some knowledge of their purport. That if the muU lands
in Kanara. were private property, still they were subject, in
the absence of a special aanad, to the right of the Govern-
ment to increase the assessment.
Digitized by Google .I""

BODA! HIOB COURT BIPOBTS.
1875. 1'arran in reply urged tha.t though Bombay Act I. of

VT.uUNTA 1865 might contain no special words rendering it locally
Buun
11.
ina.pplica.ble to Kana.re., yet it could
•
operate in tha.t province
Oovmunmn only where there wa.s a. proper subject for it to operate on,
OJ' BoKBAY. • • • •
and that if the Act were rea.d a.coording to its true mtent
Arpment and meaning it would be seen that muli lands were not a
subject on which it could operate. Tha.t in construing the
Act the Court should apply the rnles for the construction of
English statutes. Tha.t the object of the Act wa.s not t.o
interfere with existing private rights, a.nd there were no
express words in the Act ta.king a.way any such rights, the
words "whether hitherto a.ssessed or not " applying to Gov-
ernment wa.ste lands and alluvion. That the plaintiff came
under the provisions of Section 25, or must be treated as the
proprietor of a.n a.liena.ted villa.ge. Tha.t it mattered little
whether or not the plaintiff wa.s a. " superior holder " within
the definition of the Act, a.s that expression occurred only in
Sections 43 and 44, but that he could not be deemed a.n occu-
pant, as it was only after a Revenue Survey ha.d been intro-
duced that" occupants" came into being. That the Gov-
ernment had no right simply by surveying the plaintiff's
lands to convert him into an occupant, their power of entry
on the lands being only for the parpose of fixing boundaries.
Tha.t not only wa.s there no proof of muli a.nd mirasi lands
being identical, but they had even been distinguished by the
officers of Government. That the definition of private· pro-
perty, as given by ,he Government, applied to the pla.intitt'e
lands, for he had the exclusive right to the hereditary
possession of them, and the usufruct of the soil. That
though the plaintiff's lands we1·e in Soonda, yet the irresist-
ible presumption was that the muli rights there were the
same a.s in the adjacent district of Kana.re., a.nd though
Major Munro did not make the same minute enquiry into
the land tenures of Soonda. a.CJ of Kanara, yet he points to the
fa.et of the greater part of Ankola being on the same footing
as Ka.nara, and the survey of 1822 ha.d been introduced only
above the ghauts. That Major Munro's procla.ma.tion of a
fixed assessment was not ultra we, under the old rules of
Digitized by Google
B011BAY mou COURT RJ:PORTS, 15
1791, Sections 27 and 42, but was in fact merely an announce- 1875.
ment to the people that he would be guided by the principles of VuurnA
•
international law, according to which a change of sovereigns BA.PU.TI "·
niakes no change in the condition of private property. That GovnBo:in1BxT
OJI IIBAY.
Munro's object was to announce to the people a maximum
assessment, and induce Government to grant reductions, ..drptllffll,
and Government tacitly accepted the principle of the maxi-
mum assessment. That all additions, made to the assessment
by native rulers prior to the British Government, were made
on particular occasions, and for particular objects, showing
that they had no right to raise the beri.z at pleasure ; so that
even if a limited monarchy, such as the English, could be
said to succeed by right of conquest to the despotic powers
of the native dynasties; it would only succeed to those pow-
ers subject to the same limits and modifications as existed in
the days of the native role.
In the course of his argument he referred to Broom's
Comm. p. 6; Object and Reasons, published with Bombay Act
I. of 1865; Major Munro's minute of 1824; Tucker's Review;
Revenue Selections I. p. 906; Minute of the Board of Revenue
with Major Munro's remarks ; Major Munro's report to the
Board of Revenue, 31st May 1800; Gleig's Life of Munro;
Major Munro's letter to the Board of Revenue, December
1800; Major Munro's letter to the Collectors of Kanam, 9th
December 1800; Wheaton's International La.w,Seo. 163 ;and
Regulations XXV. of 1802 and IV. of 1822.
The following judgment* of the Court was, on the 1st of
May 1875, delivered on behalf of himself and .Mr. Justice
West by
W11:sTROPP, C.J. :-The plaint in this suit was filed in the JIJllgrnffll.
Court for the District of North Kanara (held at Karwar),
on the 1st of June 1871, against Colonel William Coussmaker
Anderson, as Revenue Survey Commissioner, and against the
Collector of the same district as the defendants. Subsequent-
ly upon the application of the defendants, assented to by the
plaintiff, the suit WM, by order of this Court, made on the 20th
• Note.- The footnotes to this judgment are thoee of the Court iteelf.-&t•
. Digitized by Google
... --
16 BODAY HIGH COURT BffOBT8.
1875. of January 1872, transferred, upon certain conditions which i~

Vu1tuNu is not necessary now to specify, for trial by it under it.a
BAPUJI
11• extraordinary jurisdiction.
GovBnNJONT
A further order of this Court, of the 9th of April 1878.,
OJ' BolUU.Y,
permitted the plaintiff to amend his plaint by substituting

J~.
the Government of Bombay as defendants in lieu of the
Revenue Survey Commissioner and the Collector. ·
By his plaint, the plaintiff., claiming as owner in perpetuity
of certain lands in his possession., which he stated to be
liable from time immemorial to a fixed assessment of
Rs. 200-5-7 and no more, complained of an order of the
Governor in Council (dated the 29th of March 1870), where-
by Act I. of 1865 of the Bombay Legislature had been im-
properly applied to those lands, and the assessment for land
revenue enhanced "so as to render his ownership and enjoy-
ment not perpetual.'' The plaint concluded with a prayer
that the order should be set aside, that the assessment should
be declared to be fixed at Rs. 200-5-7, and the plaintiff's
right to the lands decreed to be perpetual.
On the 17th of February 1872, the plaintiff (upon cer-
tain terms as to payment of the old rate of land revenue,
and as to security for the enhanced rate, if ultimately estab-
lished, and other matters,) obtained an injunction restrain-
ing the defendants from levying the enhanced rate of land
revenue until the hearing of the suit or further order of
this Court.
The defendants, in their written statement in defence, filed
on the 20th of April 1872, denied that the plaintiff is
entitled to the relief prayed by him, and that any permanent
settlement of the land revenue binding on the British Gov-
ernment has ever been made, or that the plaintiff has any
such permanent right in the lands, or any part thereof, in the
plaint mentioned, as alleged therein ; and the defendants
alleged that those lands were liable to be assessed under
Bombay Act I. of 1865, and have, in pursuance of that Act,
and by virtue of an order of the Governor in Council of
Digitized by Google
Bombay, made on the 29th of March A.D. 1870, and issned 1875.
under the powers conferred on them by the same Act, been ~;;:;;;:-
assessed at Rs. 468-14-0, and were, upon survey, found to ~-uJi
contain 116 acres 30 goonta.s 4 anna.s, and that the assess- GovxRNKENT
• • OF 8oKBAY.
ment was so fixed m accordance with the Act.
Jt«lgmtnt.
On the 9th of April 1873 the following issues were settled
with the consent of counsel on both sides : -
" 1st, Whether the plaintiff is entitled to the absolute
ownership and proprietary right in perpetuity to the lands
in the plaint mentioned free from any estate or interest
therein of the Crown, save and except the right of the Crown
to the receipt of a certain fixed and unalterable assessment
payable in respect of the ea.me lands ; 2nd, whether the
assessment made in 1800 by Major Thomas Munro, then
Collector of Kanara, upon the said lands, was a. fixed and
permanent and unalterable assessment ; 3rd, whether such
a.ssessment was made by the said Major Thomas Munro as
the duly authorised agent in that behalf of the late East
India Company, and whether the same W88 ratified and con-
firmed by the said East India Company, and whether the
same became valid and binding as against the Crown; 4th,
whether Bombay Act I. of 1865 in any way applies to or
affects the said lands; 5th, whether such lands are alienated
villages within the meaning and exception of Sec. 49 of
the said Act; 6th, whether the passing of the ea.id Act by the
Local Government of Bombay, in so far as it purports to
affect or alter the said annual land assessment payable in
respect of the said lands, was ultra vires; 1th, whether the
order of the Government of Bombay of the 29th March 1870
is null and void so far as it purports to affect the said lands ;
8th, whether the plaintiff is entitled to the relief prayed for
or any part thereof."
Amongst the various territories, now officially designated as

the collectora.te of North Kannra, is included the ancient pro-
vince of Soonda (Sunda), which is divided by the great chain
of Ghats running parallel to the Mal11.Lar Coast. That portion
B 117-c
Digi'ized by Google
18 BOlfBAy mou COURT R:IPOBTB.
1875. which skirts the sea has long been known as Soonda payen
~ ; ; ; Ghat (Soonda below the Gbe.uts). and the inland portion as
s ...:~11 Soonda bala Ghat (Soonda above the Ghauts) (a). The
Oov1tR10,SNT taluka Ankola (Ankola.b Unkolah) as con&titut.ed bv
o• BoKJl.&.Y. ' ' J
British authority, comprised two divisions. Of these, the
Jwdgment. northern division was called the Pa.nch :Mahale (corruptly
Panjymahl), and is identical with Soonda payen Oh&t (b).
It consisted of five magania (e), viz., Kudra (Cadera), Sivesh-
war, Bad, Kndavad (Cudavad) and magani Ankola. The
southern division is called Ooknrn, and extends so far 80llth
as the Tuddri River. That division alone of the ta1ub
Ankola formed part of ancient Kanara. The northern divi-
sion of Ankola (the Pa.nch Mahala aliaa Soonda payen Ghat)
with which the Court is now :principally concerned, extends
no further south than the Oangavali River, and, together
with Soonda bala Ghat and Soopa, at one time formed the
dominions of the Raja of Soonda (d). In Bid, one of tbe
fi.vo maga.nis comprised in the Pa.nch Mahala or northern
division of Ankola, are included three villages : namely Kusba
Bad, Kattina.kone, and Kodibagh (e). The lands, the righl
to enhance the Government revenue of which is in contro-
versy in this suit, are situated in those villages.
The plaint, in setting forth those Jands in detail. de-
scribes each lot as a Nrg (or tJarga, cormptly ,uurg). I~
treats twenty-three lots as in the village of Kusba Bild,
seventeen of which it describes as Varg-muli (Mula-1,argo
[corruptly Moolwurg], Mulgari), and six as Varg-9aini (or
(a) At fim, after the fall of Tippoo, Lord Momington eel apart; SoooJ.a
bala GhAt with other territory for the Peiabwa. but for excellent ,-ons
1peedily abandoned that arrangement.-Welloaley's Deapatchee. Vol 11,
pp. 32, 77, 1,n, 174, 181, 182.
(b) Plaintill"s Exhibit A, pp. 28, 68.
(c) .A.lieu Maga.nam. Mogani, Magni, a group consining usually cl mar
eeven:villngce, and being a sub-division of a taluka.-See Wileon'• Gloaary,
p. 316.
(d) Defendant's Exhibits Noe. 9 and 18, Vol. III., Printed Boob, pp.~
70.
(t) Dcfend:wt's Exhibit No. 9, Vol. ,III., Printed Books p. 55.
Digitized by Google
BOIIBAY BIOII COURT REPORTS. 19
Gaini-Varg). It further states that there are two varg6 in nm.

the village of Kattinakone, and two in the village of Kodi·
----
VYAKUNu
BAPUJI
bagh, all of which four Iota are in the pl&int descn'bedi aa v.
Varg-mu.li. GoviraNMEKT
OF BoXB.6.Y,.
Our Kana.rese \n.nslator renders vargf11 or tmrg as an

estate or holding (!). It has,. in the course of the a.rgu-
ment, been said to have originally meant an account relat-
ing to an estate in land, &11.dr in the progress of time, to be
used, as n4>'1V, to indicate the estate itself (f). .A. varg. (or
estate}, as described by Munro, was often composed of
unconnoote<l parts sftuated in different vilfages,. and some-
times even fn diff'erent distrfots, witliout having-any specific
rent affixed to the di'fl'erent parts, but only one general rent
for the whole (g).
Wilson, in his Glossary: (p. 542), says that in Ka.me.ta
(Kana.rese) it signifies an ancestral hereditary estate, and
that Mulavarga means original proprietary right in land,
anJ that M·ult1,,:argdar (corruptly MoolW'l,lh·gdar o~ MQol-
gar) is the proprietor of an ancestral hereditary estate.
JJ,Jula is derived from the Sanscrit Mid,. signifying literally
a root,. and figuratively (ffiter alia) the root 0£ a tree or
origin of a family. Hence arises the character of perma-
nence OT perpetuity which we find in it when used in com-
position as in Mulavarga. and Mulavargdar above instanced,.
and as also in Mtd-gaini, presently to be again mentioned.
(See Wiison 7s Glossary, 353, 354.}
Gaini, also read geni, and corruptly g'Mtnie or gtue»y, is
by Wilson (Glossary, 162) rendered" rent paid to the land-
lord or proprietor." He notes ,hat it is incorrectly ex-
(I> See, 118 to Mrf!8, Oleig's Life of Munro, Vol. I., p. 294; Selections
from Revenue and Recorda of the E. I. Ce., puf>lished at London in 1820,
p. 894. Exhibit A, p.. 208 (Mr. Blane's Letter) ; Exhibit U (Printed
Books, VoL IL, p. 28.)
(Jn And see Papel'I on Mimai Rights published at Madra.cr in 1862•
. p. 488, nute, and Appenclix p. vi., note.
(9) Exhibit A, p. 69, Munro's Letter of 9th December 1800 to his suc-
cessors, 1>ara. 11, and Mr. Blane's Letter uf 20th Septt,mber 1848, para. 59,
Ex. .A., p. 208.
Digitized by Google
20 BOKBAY HIGH COURT BEPOBTS.
1875. plained in the Glossary to the 5th Parliamentary Report as

VYA~ "Tenant."* He adds that " the word itself is rather doubt-
BA:~JI ful, and does not occur in Reeve's Ka.mate. Dictionary," and
GovimNMKNT " should possibly be gehini, (from geha, Sa.nscrit and Kar-
OF BolllBAY.
nata, a. house,) relating to a house, house rent, &c. Brown
Judgment. says " it is the same as kaini, a field.'' The'most likely deri-
vation of gaini appears to be from the Sanskrit root grahan,
with the sense of taking or receiving. From the same root
the Mahra.ttas obtain their verb gltene, to take.
For the plaintiff it is contended that a Muli-varg is an
hereditary and alienable estate, of which the Mulavargdar
is complete proprietor in perpetuity, subject to a fixed land
revenue, or quit-rent, payable to the sovereign, and which
cannot be lawfully enhanced ; and that a gaini-varg was,
originally, land held from the sovereign liable to payment of
land revenue in the ordinary way, but has been since per-
mitted by the British Government to become a property in
the hands of the tenants similar in all points to a Muli-varg.
The learned counsel, at the commencement of his speech for
the plaintiff, stated that his case for resisting the enhance-
ment of rent was much stronger in respect of the M11li-vargs
than of the gaini-vargs. It has been admitted by him that
Government, in order to realise the land revenue, has the
right to sell land held under either of those tenures, if the
land revenue, lawfully due, be unpaid.
A gaini-varg must not be confounded with a mul-gaini
{corruptly moolgeni) holding. The gaini-varg · is held, as
already stated, directly from the State, whereas the mul-gaini
tenure is said to be a permanent tenancy under the rayut or
mula-vargdalr at a fixed, and, (with the exception, recorded
by Sir Thomas Munro, which we shall mention,) invaritble
rent (h). In some cases a fine would appear to have been
• See also Exhibit U (Printed Books, Vol II., p. 28.)
(A) See Exhibit A, pp . 70, 79, 82, 88, 84, 85, 86, 87, 131, 132, 133, 220.
See a1ao Selectiona from &venue, &c., Recorda, p. 894, Exhibit U. Mid.
p. 28 t.t aeq. , Defendanta' Exhibit No. 4, Vol. III., Printed Boob,
pp. 1, 2, 3, Mr. Ravenshaw·a Report 7th A.ugnst 1801, Fifth Parliamentary
&port (M:adraa &print) Vol. II., p. 472.
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BOKBAY HIGH COURT RBPORT8. 21
paid by the tenant (mul-gainidar) to the landlord (i). The 1875.
chalie-gainida1· is a tenant-at-will or temporary tenant under VvuuNu
the rayut or niula-vargdar. In certain remarks of Sir Tho- B"!~JI
mas Munro, made in July 1801, and quoted by 'Mr. Read OovERNIONT
• • OF Bo:auu.Y.
m para. 24, column 2 of hIS report of the 1st January 1814
to the Madras Board of Revenue (J), tlte former says:-'' I Judg,,...
think it also probable that the chalie-gainis or tenants-at-will
in some places have been called Mulgainia or tenants by
purchase, that is for ever, because the landlords may get
some additional rent from the· former whenever there is a
higher offer ; but they can get none from the latter, because
their rent can be raised only by Government, which was
seldom done except at long intervals in former times when
the additional assessment was imposed after a new valuation.''
Appaji Subhrao, a. witness for the plaintiff, on cross-examina-
tion as to Munro's assertion of the right of Government to
raise the rent of the mul-gainidar, attempted (k) to explain
away or qualify the force of that assertion, but with what
degree of success, it is unnecessary that we should now
say. The result of an enhancement by the State of the 11iula-
vargdar's assessment to an amount exceeding or equalling
tho rent received by him from the mul-gainido11·, would be
an annihilation of the interest of the mitla-vargdar in his
property, if the State had not, or failed to exercise, the
power, imputed to it by Munro, of raising the mul-gainidar's
rent in proportion to the enhancement of the assessment on
the muli-varg. · For the plaintiff it was said, in the course
of the argument, that, in soveral instances i:n Kanara and
Soonda, the property of mula-vargda1·s bad been thus ex-
(i) Exhibit .A, pp. 70, 133; Exhibit U, Printed Books, Vol. II., p, 29.
(i) Exhibit .A, pp. 85, 86, Fifth Parliamentary Report, p. 467, Madrati
Reprint Vol. IL, and see to the aame effect by Mr. Ravenahaw in hia report
of 7th .August 1801, ibid. p. 468, et vide i11/ra p. 99. Mr. Thackeray, in
hia report of 4th .August 1807, ibid. p. 481, when aaying " the Mulgainia,
or fixed tenants, have not been obliged to contribute anything when the pro-
prietor baa been extra aaaeAed," must, we think, be regarded aa limiting
hia remark to the East India Company's raj, then only of seven years' stand·
ing. He added that ho thought they ought to be made to contribute.
(k) Printed Book&, Vol I., p. 127.
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22 DOKBAY HIGH COURT REPORTS.
1875. tingnished during the recent Revenue Slll'!'ey ; but, on behalf

~ ; ; ; - of the defendants, it was replied that, on those cases being
B~.11" 1 brought to the notice of Government, relief against the
GonBoaiourn aasessment had been granted to the mula-vargdars, and that
01' IIBAT. ·
directions had been given that in future, in making the new
JtAdgmeM. assessment, allowance should be made to the rayut or mula-
vargdar, where m:ul-gaini tenancies existed. In the pre.,ent
case there do not appear to be any mul-gainular, under the
plaintiff, so we are exonerated from any further discussion
of mul-gaini. rights. We have referred to mul-gaini hold-
ings merely for the purpose of distinguishing them clearly
from gaitli-carg,.
The plaintiff has not produced any sanad, grant, deed,
mul-patta (corruptly mool-potta.h), or other documents be-
longing to himself or those persons under whom he claims,
specially relating to the lands mentioned in the plaint,
or showing his title to them. The only document, ex-
clusively relating to those lands, upon which he does
rely, is his Exhibit A. E., consisting of three statements
respectively lettered B, C, and D. Of these, Statements B
and D are compilations from the Government books in the
Collector's kutcherry, furnished by the Collector, and con-
taining statistics regarding the lands to a share in which
the plaintiff is entitled. 1.'he correctness of those statistics
is not disputed on either side. Statement C, we were
informed by the counsel for the defendants, was compiled
from information supplied to the Collector by the plaintiff,
and this was not impeached. It shows the modes whereby
the plaintiff acquired the various parcel of land, and, to a
certain extent, the dates of acquisition. Two estates or vargs
appear to have been acquired by inheritance, one partly by
inheritance n.nd partly by purchase, one by mortgage (l), and
all of the rest by purchase. Statement B agrees with the
plaint in describing (in column 2) seventeen of the varg,
in the village of Bad as muli ( corruptly 1Moly), and both
of those in the village of Kodibagh and one in Kattin-
(l) .A. to mortgagee eeo Exhibit U, Prinwd Books, Vol. U. , p. 30.
Digitized by Google
llOJfllAY mon COURT REPORTS. 23
konc also as muli, but the remaining varg in Kattinkone is 1875,
described as Melwaski, i.e., Melvasi, which word is rendered ~~
. t erprete r as meanmg
b y our m . " a ddit'10ns, excess, or a ddi - B.A.l'V,TI
"·
tion made to the rate of Government assessment" (ll). Col- GovBoaaNllB:KT
OJ' MliY,
wnns 4 and 5 of Statement B respectively show the results
of certain surveys of the vargs in the years 1822-23 and Juag,llffll.
1852-53 of the Christian era, whereby it would appear that
in every instance except three, the quantity of ground
under cultivation, ranged under the names of the several
vargs, was slightly larger in the year 1852-53 ( Fusli
1262) than in the year 1822-23 (Fusli 1232). We say
u under cultivation," because we do not understand that any
land lying waste at the time of either survey was then taken
into account. The learned Advocate General contended that
the increase in the quantities in the latter year showed en-
croachment on the pad of the varg<lar upon Government
waste land, but Mr. Farran for the present vargdar (plaintiff)
denied that this was a necessary inference, inasmuch as he
said that in most vargs there was waste land belonging to ea.eh
vargdar, and the quantity of land, which each varg<la,· culti-
vated in his varg, frequently varied from year to year accord-
ing to his means, or his industry (m). There was not any
(U) Meltmi signifies that the land bears an uaesament exceeding the
amount properly lcvfable according to its produce. Mnnro in his letter to
the Collector of Kanam, 9th December, 1800 (Exhibit A, p. 70) says, that
reductions of Melvasi are not to be made until the concealed inama are
brought into the. account. The meaning of this ia that, in many placee,
land bad been withdrawn from varga as m,m, and held tree from aaaeas.
ment, the whole asaeaament (which thus became exceaaive) being plaoed
on the remaining lands in the varg. See Exhibit HH, Printed Books,
Vol. III , p.'¥1:
paragraphs 7 and 8, and Exhibit No. 18; Mr. Lewin'& letter,
6th September 1827, ibid. p. 70.
(m) As to waste lands generally see Plaintiff's Exhibit A, pp. 12, 17, 18,
19, 20, 26, 128, 129, 130, 149, 178, 182, 186 to 198, 201 to 207, 235 to 238;
Gleig's Life of Munro, Vol, III., pp. 328 to 330; Elph. Hist. of India,
p. 69, 4th ed.; Defendant's Exhibit No. 24, Printed Books Vol. III.
p. 19, para. 28, and p, 110. The evidence of Mr. Shaw Stewart has been
relied upon by Mr. Farran as supporting his argument. See also, aa to
waste lan<le, the Miraai Papers published in 1862 with the permission of
the Madras Government.
Digitized by Google
1876, evidence on this question given upon either side with regard
Vux.u.11TA to these particular lands, and it, in the view taken by us of
BAPUJI
"· this case, becomes unimportant. Therefore we shall not give
~~v:::rav:::,rany opinion upon it, although presently again we may find it
necessary to notice a distinction in law t.aken between culti-
Ju.dg,nfflt. vated and waste lands.
The total (Rs. 200-5-7) at the foot of column 7 of B is the

amount at which (in his plaint) the plaintiff says his assess-
ment ought to be regarded as ina.lterably fixed. The total
(Rs. 468-14-0) at the foot of column 13 of Bis the amount
at which his assessment has been fixed by the recent survey
of 1870, and has occasioned the present action. Statement
D is much relied upon by the plaintiff as showing that, from
the Fusli year 1209 (A.D. 1800-1) to the Fusli year 1279
(A.D. 1869-70), the land revenue, taken by Government from
sixteen of the several vargs now eelonging to the plaintiff
has not in any year exceeded the amount mentioned in co-
lumn 4 of that statement, as the old assessment (kadim beriz)
leviable in the Fusliyear 1209 (A.D. 1800-1) from those varga.
That old assessment is there described as shist and BhamU,
terms which we shall Eresently explain.
Of the sixteen vargs, whose shUJt and shamil in Fusli 1209
(A.D. 1800-1) is mentioned in D, only one (No. 23) is a
gaini-varg. With that simple exception a.11 of the-gaini-
vargs a.re, in the 15th column of D, stated to be new varys,
which would appear (see columns 8 to 14) to have been created
at various periods in the interval between the years 1810
and 1870 of the Christian era, and not to have been formed
until several years after Major Munro had ceased to be Col-
lector of K.a.nara. For six Muli-vargs and the MelvMi-1,,arg
the shist and shamil are not mentioned in column 4 of D.
Some other remarks in the 15th column of D, beside thosa
already noticed, might have required special consideration on
our part, had not the general view which we take of the plain-
tiff's case rendered that special consideration superfluous.
The phrase "permanent settlement of the Land Revenue "
occurs very frequently in tho books and documentary evi-
Digitized by Google
DOlfBAY man COURT REPORTS. 25
dence l"eferrcd to in this case. It is sometimes employed to 1875.
denote any permanent settlement of that revenue, but it is Vv.urnNTA
BAPUJl
far more frequently used to signify a proposed permanent 11•
settlement of the Land Revenue1 of the same species as OovaRNMRNT

OF BoMBAY,
that introduced into Bengal, Bahar, and Orissa in 1793,
during the Governor.Generalship of the Marquis Cornwallis, J11dgm,;111.
with respect to which, therefore, some observations become
necessary. In the discussions which preceded and in those
which followed that settlement, and more especially as to
the parties with whom Government should negotiate it, a
controversy arose 88 to the ownership of the soil in India,
involved in which was the question 88 to the character in
which native governments claimed, from the occupants of
the land, payments either in money or in produce in respect
of the land. Were these payments rent or revenue ? Some
maintained that those payments were rent, not revenue;
because, it was said, the land could only be occupied and
cultivated by the permission of the sovereign, and that
such produce, as there may be in excess of what sufficed
for the bare subsistence of the cultivators and for the ex·
penses of cultivation, is the property of the sovereign.
Others maintained that the sovereign was only entitled to
a fixed portion of the produce, and that the surplus beyond
that portion, plus the subsistence of the rayuts (cultivators)
and the cost of cultivation, belonged to a class of great
landlords between the sovereign and the rayuts, which
intermediate class consisted of zemindars, talukdars or
similar personages ; while others again strongly contended
that, subject to a land.tax payable to the sovereign, the
property in the soil was vested in the cultivators, sometimes
in the form of village communities holding corporately, at
other times as individuals holding in severalty, or jointly as
members of an undivided family. In 1793, (either upon the
ground that the soil was v~sted in the sovereign power, arid
that it was expedient that, by that power, a landed aristo.
cracy should be created, or upon the ground that the land,
subject to the revenue assessment, i .e., the king's (or State's)
share of the produce, ought to be public} recognised u.s
B 117-d .
Digitized by Google
26 BO'IIBAY HIGH COURT BIPORTS,
1875, vested in the class of zeminda.rs, &c., as landlords) the

VYAKUNTA permanent settlement in Bengal, Bahar, and Orissa was
BAPU.11
"· ma.de by the Government of Lord Cornwallis, by recogniz-
GovBoBRNMBNT ing the zeminda.rs, &c., as the proprietors of the soil, and
OP lllBAY,
entitled to transfer it, and by fixing, once for a.II, the land-
Judgmene. ta.x payable by them to the State at a.n immutable annual
rate (n). Doubtless this arrangement was, by a large pro-
portion of the statesmen of that day, both in England and
India, conscientiously believed and intended to be an &et of
justice and benevolence (o), and it bas been well said that
"the distinguished character of Lord Cornwallis, and the
authority which the permanent settlement derived from
the approbation of Mr. Pitt, of Lord Grenville and Lord
Melville, clothed it with an awful veneration which for
many years precluded the agitation of any question a.a to its
merits" (p). Yet subsequently, though honourably main-
tained in thO!le parts of India to which it wa.s ma.de appli-
cable, the perma.nont settlement system of 1793 has by
numerous critics been classed in the order of well-meant,
but maladroit and unfortunate experiments, which zealous,
but insufficiently informed foreigners, acquiring dominion in
a country remote from their native land, a.re prone, in the
infancy of their rule, to essay. There has been a remark-
able concurrence amongst the many able men (q), who,
(n) Beng. Reg. I. of 1793.

(o) Warren Hastings, however, denied the right of the zemind&r11 to be
landlordll-aee Galloway's Law and Constitution of India p. 42.
(p) See note I top. 292, Mill and Wilson's Hist. or India, 5th ed. VoL VII.
(q) Ex. Gr. Mr. Mill [Milland Wilson's Hist. Vol. V., Bk. VI., Ch.V., pp.
339, 340, 5th ed.); Mr. H. H. Wilson [/bid. p. 338 n. and Vol. VII., Bk. I.
Ch. VIL, pp. 310 d. uq. 316 n.]; Colonel Wilks [Hist. Mysore Ch. V., pa.,·
aim]; Patton [Principles of Asiatic Monarchies, pp. 77 to 82 et BelJ• 115, ll6,
117, 131 to 133 d 11eq. 159, 171, 190); General Galloway [Law and Con-
Btitution of India, Chap. II. pa111Jim] ; Sir Thomas Munro [Exhibit A.,
pp, 59, 62; Gleig'a Life of Munro, Vol II., pp. 68, 258 ; Vol III., pp. 320,
340,381, 382, 425J; ProfeBBOr R. Jones [Essay on Rent, p. 111.] ; Sir H. S.
Maine [Village Communities, Lecture IV., p. 105]; Profl'Bllor McCullocla
[Note XIX., p. 581 1 to .Adam Smith's Wealth of Nations, 5th ed.) Beng.
L R. F. B., p. 295per Morgan J.; Grant Duff [Hist. Vol. I., p. 31, Bombay
reprint J ] Rev, Bel. Vol. I., p, 5'n, para. 7; p. 639, para. 75, et ,eq.
Digitized by Google
BOllBAY HIGH COURT REPORTS. 27
during the last half century and upwards, have, from 1875.
various points of view,-Hindu, .Mahomedan, and British,- VvurrNTA
_______ .J h l BAPUJl
dil:l(,~ t e permanent sett ement of Lord Cornwallis, in "·
the opinion that, generally speaking, (for there were many GovBRNMBNT
• d e1cept1ons
aJ.m1tte • (,-) ) t ho zem1a~rs
• .3_ were not landlords, O"I Bo.II.BAY.
but were hereditary collectors of Government revenue, (cus- Jwl!J'ITl,f"'·
toms and excise as well as land-tax) in the large district over
which they exercised authority; and that, in establishing
them as landlords, the right of the rayuts, as proprietors,
was overlooked and set aside. Although in his Moderu
Indi11 (p. 303) Sir George Camp bell, previously to his service
in .Bengal, had adopted this opinion, his subsequent official
andjudicial e•perience in that province led him to a different
ooncl usion. In his Essay on the Land Tenures of India, of
which, without binding ourselves to a.II its details, we may
say that it affords the best genera.I view of those tenures
with which we a.re acquainted, he expresses his opinion to
bo that Lord Cornwallis and his advisers" quite understood
aud did not over-estimate the real position of the zemindars,
who were ma.de proprietors, not in recognition of a. right,
but in pursuance of a. deliberate policy ; '' and that the Gov-
ernment, " having found the uncertainty of tenure of the
zeminda.rs and others to be attended with much evil, ma.de
the zeminda.rs in one sense proprietors. .As between the
Government and the zemindars, the claims of the former
were strictly limited, and the zemindars became proprietors,
instead of mere revenue officers ; but they were by no means
ma.de sole and a.bsolutA proprietors." After pointing out
the provision11 enacted for the protection of the rayuts'
interest, and the effete condition of the village system in
Bengal, and that the sP-ttlement was not exclusively ma.de
with great zemindars, but with holders of small degree
when .they were supposed to have stronger claims, so that
" in one or two of the ea.stern districts of Bengal the set-
tlement is, for the most pa.rt, to all intents and purposes
(r) Mill and Wilson's Hist., Vol. VII., p. :116, Note ), oth ed.; Mount-
1tuart Elphinatone's Hiat. of India, pp. 72, 78, •th ed.; Tucker'a Indian
Government, by Kaye, p. 120 et ~eq.
Digitized by Google
1875. ra.yutvar," he said : " On the whole, my impression is that

V Y A K ~ (perpetuity of revenue apart) the principles of the perma.-
BA!.uJI nent settlement of Bengal were in the main good and sound,
GovBoERNMENT and that the ground for subsequent complaints is to be
OF lllBAY.
found not so much in those principles as in the failure pro-
Judrrment. porly to carry them out, and in the ideas which afterwards
arose from a misinterpretation of them." Sir George Camp-
bell then pointed out how the provisions for the protection
of the rayuts and inferior holders were neglected and allowed
to fall into disuse. The fixing of the Government revenue
demand for ever instead of for a long period, he thought to
be " a financial mistake." He shows that zemindars were
not homogeneous in origin. They were, he said, variously
descended, some from old tributary rajas, others again from
heads of Hindu castes or clans, robber chiefs, or collectors
0 r farmers of revenue, although the word " zemindar " is a
Persian word signifying actually " landholder." In Bengal
it was generally applied to the great middlemen who rose to
power on the decline of the Mogul Empire, while in the
Pan jab it is applied to the peasantry. The term, in its
ordnary English acceptation, he observed, implies a holder
between the State and the actual cultivator. Inasmuch as
we have not, in the present case, to deal with zemindars, it
not having been asserted on either side that any claims of
a zemindari nature here present themselves, it would be
irrelevant to treat in detail of the rights and duties of
the zemindari class previously to " the permanent settle-
ment.'' It has been admitted, on both sides, that a perma-
nent settlement of the zemindari species has never been in-
troduced into Kana.re., although such a settlement was made
in some other provinces in the presidency of Madras (rr).
Sufficient has been said to indicate the meaning of the
phrase "permanent settlement,'' as most frequently, though
not invariably, employed by ~he writers of the letters and
minutes in evidence before us. The contest here is not one
of the State with the zemindar, nor of the zemindar with the
(rr) Mentioned in detail in the note to Rev. Sel. Vol. I., p. 885, and m
the fifth Puliament.ary Report, Vol. II., p. 122, Ma<lru Repriut,
Digitized by Google
rayut, but between the State and the rayut. The term ~ - -
,, rayut," " which is familiar to all acquainted with Indian VYAKU.NTA.
finance as applied to designate the cultivators of the soil in 8 ":_llJI
genera.I' " is here used by ns '' to distinguish that particular GovxRNM&NT
~Bo~L
cl888 only among them who employ, superintend, and some-
times a.ssist the labourer, and who are everywhere the far- Judvment.
mers of the country, the creators and payers of the Land
Revenue " (s).
Previously to considering the questions of proprietorship
in the soil as treated from the Hindu point of view, it will
be convenient shortly to state the substance of the texts of
Hindu Lawgivers relating to Land Revenue.
It is declared in Manu, Chapter VII., pl. 130, 181, 132;
also in Ch. X., pl. 118, 119, 120; and i Jaga.nuatha's
Digest, Bk. II., Ch. IJ., Sec. I., pl. XIV., XV., XVI!.,
XVIII., XIX ., XXIII., quoting Manu, Parasara, Vidyaranya
fthe Madhaviya], Vrihaspati,andKalidasa, that theking may,
in ordinary times, take a twelfth, eighth or sixth part of the
crops of the land, " according," adds Culluca Bhatta, " to the
difference of the soil, and the labour necessary to cultivate
it "-and that a military king, in times of war, invasion or
great public adversity, may take even a fourth part of the
crops. A passage in the drama of Sakuntala by Kalidasa
also shows that, at the date of its composition, the sixth
part was, at least popularly, recognised as the royal share({) .
.And Narada's text is: '' Both the sixth pa.rt of what is ac-
quired in some other customary way, and the sixth part of
(a) Selection& from Revenue, &c., Records, Vol. I., p. 888, para. 17 of
:Minute of Madrae Board of Revenue of 5th January 1818. See also ibid.
P· 886, paras. 7, 8. Mr. St. George Tucker (Indian Government ed. by
Kaye, p. 126,) eaid : " the term 'rayut • ia very indefinite. 1.'here are
rayuta who may justly be esteemed petty landholdera ; there are others
who are tenant& with a right of perpetu&l occupancy; othera, again, who
are not domiciled on the laud (the Payunkaaht rayut), who are moveable,
aometimea cultivating in one •village and sometimes in ano\her, and who
may be regarded ae contractors for carrying on the cultivation ; and,
laatly, there are rayuta who are mere labourera for hire, who J>Oll88.'ill
neither cattle, nor plough, nor stock of any kind, and who are supplied
even with tho seed-grain, receiving the wages of labour uaually in kiud.''
(t) Chap. Vlll., v. 304, 308.
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30 BO.IIBAY HIGH COURT REPORTS,
1875. the produce of the land, is the king's due, the reward ob-
Vv AKUNTA ta.ined by him for the protection of his subjects." A pre-
BAPUJI vious text of the same Smriti writer is :-" The income of
"·
GoVBRNM.BNT kings is comparable to the inffux of clean and unclean Hoods
or BoJOAY, whi ch mmg
· le m· the ocean. As tin· b ecomes clea.n when 1t·
Judgment. is brought into a blazing fire, wealth, acquired by whatever
means, becomes clean in the hands of a king" (tt).
We now proceed to mention the Hindu texts mainly re-
lied upon in support of the sovereign's claim to the pro-
prietorship in the soil (u). Amongst them is the following
from the Nerasinha Purana :-" Thrice seven times extermi-
nating the military tribe, Parasu Rama gave the earth to
Kasyapa as a gratuity for the sacrifice of a horse" (v). From
this highly figurative and nebulous passage, which belongs
to the regi_on of allegory or mythology and not to that of his-
tory or law, the author of the Digest, Jagannatha Tercapan-
chanana, has been erroneously regarded by some critics as
successfully evolving the doctrine that the soil is vested in
the sovereign. That theory has been adopted by the elder
Mill in his History, and the Haileybury Professor, Mr. Jones,
in his Essay on Rent (w). However, in relation to the very
next text (pl. XIII., taken from Yajnyavalkya) which Jagan-
natha cites, his commentary admits, in accordance with the
text itself, that a Brahman, taking possession of unclaimed
property, may retain the whole of it as against the king, and
that any other person than a Brahman, occupying unclaimed
property, on giving up o. sixth po.rt of it to the king, may re-
tain the residue. If this be so as to unclaimed property, a
fortiori would it seem to be so as to property long cultivated
by the occupant. He admits that " the cultivator has a
subordinate usufructuary property, not a royal property;"
(U) Dr. Jolly'• tr&Dllat.ioo. of Narada, p. 115, pl 44-47.
(u) A1 to the sources of property according to Hindu Law, see Mana,
Ch. X., pl. 115; Alitacshara, Ch. I., Sec. I., pL 8 ; Mayukha Ch. IV., Sec. L,
pl. 1, 2.
(I,) 1. Digest translated by Colebrooke, Bk. II., Ch. ll., Sec. I., pL 12.
(w) P. 106.
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and refers also to Srikrishna Terka.lankara's opinion that 1875.

cc there may be, in the same land, property of vn.rions kinds, VvAKUNTA
BAPU.JI
vesting in the king, the subject, and so forth.'' Sub- 11,
sequently, Jagannatha says (:i:) that "others hold that GovBonNMBNT

OP MBAY.
the king has no property in the soil, nor power to dispose
of the subject's abode, because all have a right in the soil; Judgmtnt.
since the earth was created for the support of living animals
as expressed in the S:;-i Bhngavatta : ' the earth which God
created for the abode of living creatures;' and because Manu
has only declared that" the subjects shall be protected by the
king" (y) ; and Ja.gannatha adds :--" The subject's pro-
perty in the soil is weaker than the king's, for the subject is
weaker than the king ; but it is founded on the reason of the
law and on settled usage: therefore the land of the subject
ought not to be sold by the king to another;" and, finally, he
admits that "the meaning of the text, which describes the
earth as the abode of living creatures, is positively this : the
property is his who uses the land where he resides, and while
he uses it; and thus when land belonging to any person is
sold by the king, it is a ea.le without ownership." (z)
(z)'Colebrooke'e Tranalation of the Digeet, Bk. II., Ch. II., Sec. I., pl.
XII.; ed. of 1801, p. 461 ; and Ibid, pl. XXIV. pp. 471, 472.
(y) Ibid. pl. XXIII., p. 471.
(z) Ibid. pl. :XXIV., pp. 471, 472, 473, 474, The myth of the gift to
KL,yapa appe&l'I, as narrated by Jagannatha, in the Santi Pa"ana, whence
it is extracted by Dr. Muir (Sanskrit Texts, Vol. I., p. 452 d. aeq.) A refer-
ence to this will show that the same legend, which establishes Kaa;rapa's
dominion, states also an abdication by him in favour of the Brahmaos, who
proving to be inefficient governon, the earth (Prithivi) ·wa11 about to sink
through despair into Ohaot, when Kasyapa sustained her, and, at her behest,
appointed the remnants of the Kahatriyaa to be ki~ (pp. 463, 454). There
are aeveral variations of this myth, in two of which Prithivi remonstrates
u to the unauthorised mode with which she waa dealt, threaten, to eubaide
into Cbaoe, and ridicules Visvakarman (the alleged donor in this version of
tbe tale), by saying that his conduct ia that of a simpleton in 11ttempting to
bestow that which was not his own. She denies that any mortal can give her
away. (Muir, S. T., VoL I., pp. 456,457,464; Vol. IV., p. 369, t.t ibid. note
117), But what ie meant as the object of the git\ of Kas;rapa, or Visv&-
karman, ia clearly the lordehip of the earth, not the u1nfruct of the soil.
One indeed of the oppreaione under whioh Prithivi had groaned was that,
" in consequence of there being no Government, the weak were oppreased by
Digitized by Google
82 DOXDA y man COURT REPORTS,
1875. the Btrong, and no one was master of any property;" and K,gyapa's inter•
- - - - - - vention would have been in vain had be installed the Kshatriyas in power
VYAKUNTJ. • f · 't
BAPUJI to perpetuate rather than to remedy th1e state o msecun y.
GovE:~MENT It is important, however, to note that J agannatba, immediately before that
pusage cited from the Nemsinha Purana, and as the basis of his dieqnisi-
01' Bo11BAY.
tion on property in the soil, refers to the legend of Prithivi as the wife or
Judgment. Prithu, the illustration chosen by Mann (Ch. IX. pl. 44), with which Jagau-
natha must have been perfectly familiar, to show that property arille8 by
occupation. But Kas) apa himself is oo~monly regarded as the grandson
of Brahma. He is called also the self-generated, and is accepted as the father
of the twelve Adilyas, and a Prsjapati or Praja erij, i.e., a creator of beings
(Muir, 8. T., Vol. I., pp. 116, 195, 196; Vol. III., p. 285; Vol. IV., pp.
27, 33, 118, 119; Williama' Sanskrit-Eng. Diet., p. 608, col, 2). The divided
empire, which Parasu Rama ehares with him, is thus a mythical embodiment
of the dominion of external nature enjoyed by man (aa in Psalm VIII. v. 6)
under a gift from the deity, and aooompanied by a still subsisting power in
him. This agrees with Mann's notion. Manu is called the bard as well as
the grandson of Kt.syapa, an idea that could not well have arisen if bis
interpretation of the tale had been disparagir,g to the dignity of Kuy11pa
ae then understood. An argument for the non-existence of private property
in the soil could hardly have begun by a reference to .Mann ; and a close
e:mminationof Jagaunatha's disquisition does not seem to justify the opia•
ion that he intended to make the rights of the king or St:i.te absorb the
ownership of the individual. When, in his commentary on Yajnyavalkya's
text, Dig. Bk. II., Ch. II., pl. Xlll., he saye :-" But whence is it deduced
that ench property ve~ts in the cultivator!" he means not the usufrnctuary
property, mentioned immediately before in hie statement of Srikrisbna's
t.heory, but the absolute property excluding even jura r~galia, which only
Jagannatha, as he shows immediately before, pl. XIII. cl. 2, sought to
refute. The concluding portion of his commentary on that placitum i1
equally inconsistent with a denial of private ownership. After describing
the theory of thoee who take the view that private ownership arises from 11n
express or implied grant on condition of payment of revenue, he concludes
by suggesting that, when land is delivered, a specific undertaking 1hould
be obtained from the tenant. This would be necdleBS if he had accepted
the theory to which he refers in the oonclnsion of his commentary on
placitum XXVII. of the king's sole ownership. He thinks rather that
there are concurrent rights, those of the king subsisting necessarily for the
protection of the subject (Dig. Vol. I., pp. 470,471, Ed. of 1801 ). •• The cul-
tivator," he says, "has a subordinate usufmctuary property, not a roy11l
property" (p. 462), and the right both of the king and the subject in the
soil is proved upon the concurrent opinions of many authors (p. 472).
This is a doctrine not in Rnr wise more unreasonable than that of the
coexistence of the dominium directum and dominium utik recognized by
European jurists, and still operative in Scotland (2 Bell. Comm., 6th Ed.,
pp. 730, 731, and see Mackeldey Lib. 1, Cap. IV. pl. 296, note (a), p. 306
Ed. Lipailll 184); Potbie? Vol. X., pp. 102, 103, Buguet's Ed. of 1861, {
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Mr. Mill, after making several quotations, most of whiclt ~~

were irrelevant to this question of Hindu Law, ea.id:-" From VvAKUNTA
.
t hese facts only one conclusion can be drawn-that t e
h BAPUJI
11•
P roperty of the soil resided in the sovereign ; for if it did GoVEBoRNMBNT

or MBAY.
not reside in him, it will be impossible to show to whom it
belonged: The cultivators were left a bare compensation, Judgmmt.
often not so much as & bare compensation for the labour
and cost of cultivation : they got the benefit of their labour :
all the benefit of the land went to the king" (a). Previ-
ously (b) Mr. Mill had quoted an ordinance of Yajnyavalkya,
whence he argued that it appeared" that the kings alien•
ated their lands within their dominions, in the same mannor
and by the same title as they alienated any portion of their
revenues." The text (bb) will be found in Vol. II., Bk. II.,
Ch. IV., Sec 2., pl. XXXIV. of Jagannatha's Digest, p. 162 of
the ed. of 1801, and is translated by Mr. Colebrooke thus:-
HLet a king having given land, or assigned a corody, cause
his gift to be written for the information of good princes
who will succeed him," &c. In the translation relied on by
Mr. Mill, we find in lieu of "or assigned a corody," the words
u or assigned revenue." For present purposes it is unneccs-
Oru. Dig. 8). It agrees very closely with the observations of Lord Romilly,
to which we ahaU presently refer (infra p. 40). The learned grammaria11
(Jagannatha) ea tangles himself (Dig. Vol. L, pp. 471, 47~ in eome perplexing
subtilties arising, it would seem, from the identity of the word "swamitra"
(which aometimea is osed to expre118 sovereignty and at other times owner•
ship), and the technical impoasibility of a gift of that which has not yet
come into exiat.ence; but li.is cc,nclosion is uoexoeptiooable-that the subject's
property in the soil, though weaker than the king's, as the subject i1
weaker than the king, "is founded on the reason of the law and oponset-
tled usage: therefore the land or one subject ought not to be sold by the
Iring to another." Nay more, he places the s11bject's right so high, that,
ia the commentary on pl. 28 (p. 477), he is uoBble to recognize a complete
transfer of the rayut's ownership, even for the realbation of a penalty,
without the owner's assent, though with a not uou1ual moral inconsistency
he ihinb that, in despite of Maou to the contrary (Dig. p. 458, pl. 10),
this may be obtaisled by compulsion.
(a) Mill and Wilson's Hist. of India, Vol. I, p. 216, 5th Ed. (by Wilson).
(b) Ibid., p. 213, (bb) See also Mayukha, Ch. II., Sec, 1, pL 6.
B 117-e
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1875. sary to consider which of these is the better rendering of

VvuoNu the original. In both translations occur the words" Let
BAPUJI
11. a king h avmg
. given
. 1an d ;" which words Mr. Mill treats as
~'&::.._~ applicable to all of the la.nds in the king's dominions, where-
as those words would be satisfied by applying them to waste
Judgm,nt. or escheated lands, or lands abandoned by the rayute (some-
times described in Ksnara. as kulnasht or koolnu,ht), or to
the royalties in the land.
Mr. Mill (c) also relied on Ma.nu, Ch. VIII., pl. 39, "of old
hoards and precious minerals in the earth, the king is en•
titled to half by reason of his general protection, and because
he is the lord paramount of tlte soil," and substituted the
word "supreme" for "po.re.mount" used by Sir Willia.m
Jones, being of opinion that the latter "has no meaning,
but as it relates to the feudal institutions of Europe, and is
calculated to convey an erroneous idea..'' He also refers to
pl. 243 in the so.me chapter of Ma.nu, which empowered the
king to punish the farmer ifhe neglected to sow -his field (d) .
But Professor H. H. Wilson, in his note (e) to this por-
tion of Mr. Mill's History, shows that the latter completely
misapprehended the meaning of Ma.nu. The note is as fol-
lows:-
" With regard to the right of the Hindu Raja, it is by
no means analogous to those of the rulers of Egypt, or of
Turkey, or of Africa, supposing them to be accurately
stated in the text (of Mr. Mill); and the texts which have
been conceived to warrant such an inference are wrongly
interpreted or understood. He is not lord of the 'soil,'
he is lord of the earth, of the whole earth or kingdom,
not of any parcel or allotment of it ; he may punish a
cultivator for neglect in order to protect his acknowledged
share of the crop ; and when he gives away lands and
villages, he gives away his share of the revenue. No
donee would ever think of following up such a donation
by actual occupancy ; he would be resisted if he did. The
(c) Mill and Wilson's Hiat., Vol. I., p. 212.
(ii) Mill and Wil10n'a Hist., Vol. I ., p. 213. (e) Ibid. p. 212.
Digitized by Google
BOllBAy mou COURT REPORTS-. 35
truth is that the rights of the king a.re a theory, an a.bstrac- __i s ~
tion; poetically (() and politically speaking, he is the lord, VYAKUNT.A.
the master, the protector of the earth (Prithvi pa.ti, Bhn- B-'-!~n
miswa.ra, Bhumipa.} just as he is the lord, the master, the ~~~=T
protector of men (Narapati, Nareswara, Nripa). Such is
the purport of the common title of a king; but he is no Judgment,.
more the actual proprietor of the soil than he is of his
subjects : they need not his permission to buy it or to sell
it, E>r to give it away, and would be very much surprised
and aggrieved if the king or his officers were to buy or sell or
give away the ground which they cultivated." In a subse-
quent page {224) the author (Mr. Mill) is forced to admit, that
" all which is valuable in the soil, after the deduction of
what is due to the sovereign, belongs of incontestable right
to the Indian hnsbandman." To the same effect is the
note by Professor Wilson at p. 296 of Vol. VII. of Mill
and Wilson's Hist., being Vol. I. of Wilson's continuation
of Mill. In weighing the value of the title, given by Mann
to the king, of supreme or paramount lord of the earth,
we should recollect that the same sage has (Chap. VII. pl. 7)
described the king as ' the regent of waters ' and 'lord of
the firmament.•
:Moreover Manu and his most trustworthy commentator Cul-
luc6. Bhatta. expressly assert the ownership of the cultivator.
In Chap. IX. pl. 44 of Sir William Jones' translation of
Mann, we road that " sages, who know former times, consider
this earth (Prltihivi) as the wife of King Prithu ; and thus
they pronounce cultivated land to be the property of him
who cut away the wood, or tcho cleared and tilled it; and
the antelope of the first hunter, who mortally wounded it."
The words " or who cleared and tilled it" in italics, are the
gloss of Culluca Bhatta. The portion of Mann in which
({) A.a to the birth of Pritbu-(the Cecrops of India) and his subjugation,
by agriculture, of the earth (Prithivi), see the Vishnu Purana translated by
H. H. Wilson Vol. I. Cb. XIII.
In the Apocrypha, we find an oriental potentate, Nabochodonosor, king
of the A88yrians, speaking of himself M " the b'l'eat king, the lord of the
whole earth"; Ju11it.h, Chap. 11., vv, 4 aml 5.
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36
1875. that passage occurs is the Chapter on Judicature and on
VuKuNu the commercial and servile classes. Endeavouring to ex-
BAPuJI
11, plain the same pa.ssa.ge away, Mr. Jones of Haileybury,
GovnNKENT in his Essay on Rent (g) writes :-" Mano is in fact
or Boll1lAY. ,
deciding to whom the children shall belong, born of an
JIMJ,gment. adulterous intercourse between a married woman and her
paramour. 'Learn now that excellent law universally salu-
tary, which was doclo.red, concerning issue, by great and
good sages formerly born.' And, illustrating this in his own
allegorical fashion, he compares the earth to the lady ; and
declares that he who received her virgin charms should ~
the owner of all the progeny she might produce, under any
circumstances, however strong, of detected or permitted
faitnlessness; and that as cultivated ground belonged to him
who first tilled it, and the antelope to the first hunter who
mortally wounded it, so ' men who have no marital property
in women, but sow in the fields owned by others., may raise
up fruit to the husband, but the procreator can haTe no
advantage from it.' This subject Ma.nu pursues from pl
31, p. 291 to pl. 55, p. 295 of Haughton ; and follows up his
illustration by putting o. variety of cases, which I certainly
shall not quote, but which, onco read, will effectually (I
should think) prevent any person's again referring to tlw
passage as a gra.vo authority for tho laws relating to landed
property in India." That argument, however, was antici-
pated and completely refuted by the historian of Mysore,
Colonel Mark Wilks, who has, in the 5th chapter of his
scholarly work (h), discussed, with remarkable ability and
learning, the question as to the ownership of the soil. He
strongly m!\intains that Hindu Lo.w declares the proprietor·
ship of the soil to be in the cultivators. From pp. 75, 76
of the Madras reprint we extract this passage : -
" The most ancient and authentic authorities accessible
to tho English reader are the institutes of Manu, translated
by Sir William Jones; and the texts from a great variety
of books of sacred law, which are collected and arranged in
(g) Appendix p,1350 published in 1844. (h) Vol. l.
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the Digest of Hindu Law already mentioned. The author 1875.
of that work (Ja.ga.nnathaY informs us in his commentary, Vuxu=A
that Chandesw1J1·a and others explain the word husbandman, BAruJI t'.
as owner of ihe field, and endeavours to remove the difficulty Govs&NMZNT
of reconciling th.ese auth ont1ee . h h'1e own courtly opinion
. . wit . . or Bo.lUIAY.
(founded on the text from the Ncrasinha Pura.na) already JudgmeJtL

mentioned, by a series of quibbles, which I will not attempt to
discuss, because I profess myself unable ·distinctly to com-
prehend them (hh). This author has not thought proper to
quote a text of which he could sca1·cely be ignorant, viz.:-
' Cultivated land is the property of him who cut away the
wood, or who first cleared and tilled it;' a passage which
distinctly establishes the existence of private property in
land in the days of Manu. It may possibly be objected
that this passage occurs not in a disquisition concerning
land, but for the purpose of illustrating a question o -
filiation, by comparing the respective claims of the owner
of seed and the owner of the land in which it is sown ; but
this apparent objection, as I conceive, materially strength-
ens the authority ; we illustrate facts which are obscure, by
reference to facts of genera.I notoriety ; and it is manifest
that this origin of landed property, so consonant to the
dictates of reason, and to the genera.I opinion of mankind,
must have been familiarly known and acknowledged as a
practical rule of society at the period when the code of
Mann was compiled (for it professes to be a compilation),
viz. about 800 years before tho Christian era and 553 before
the expedition of Alexander."
In the Essay on the Mimansa of Jaimini (i), Mr. Cole-
brooke says:-" A question of considerable interest, as
(M) The quibbloe, which Colonel Wilks professes himself unable to
understand, deserve perhaps to be ealled by that name ; but he has, we
think, mistaken their design, which was to eetnblieh and not to abolish the
cultivators' ownership, by proving that it might co-exist with the higher
" dominium" of the sovereign (as described in the note of Professor Wilson
to which we have referred), but which Jagannatha could not conceive as
aubaiating without a kind of ownership in the eoil
(i) Colebrooke's E1111ay1, Vol. II., p, 34G, originally publiahed Vol. I,
Trau. Royal Aaiatio Society 458.
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88 BOMBAY HIGH COURT REPORTl'f.
1875. involving the important one concerning property in the soil

Vn1tuNu of India, is discussed in the sixth lecture. At certain sacri-
BuuJ1
•. flees, such as that which is called viswajit, the votary, for
GovBoERNMENT whose benefit the ceremony is performed, is enjoined to
OJ' HB.&.Y.
bestow all his property on the officiating priests. It is
Judgment. asked whether a paramount sovereign shall give sll the land,
including pasture ground, highways, and the site of lakes
and ponds ; an universal monarch, the whole earth ; and
a subordinate prince, the entire province over which he-
rules f To that question the answer is : the monarch has·
not property in the earth, nor the subordinate prince in the
land. By conquest kingly power is obtained, and property
in house ·and field which belonged to the enemy. The
maxim of the law that ' the king is lord of all excepting
sacerdotal wealth,' concerns his authority for correction of
the wicked and protection of the good. His kingly power
is for government of the realm and extirpation of wrong;
and for that purpose he receives taxes from husbandmen,
and levies fines from offenders. But right of property is not
thereby vested in him ; · else he would have property in
house and land appertaining to the subjects abiding in his
dominions. The earth is not the king's, but is common to all
beings enjoying the fruit of their own labour. It belongs,
says Jaimini, to all alike : therefore, although a gift of a
piece of ground to an individual does take place, the whole-
land cannot be given by a monarch, nor a province by a
subordinate prince ; but house and field, acquired by pur-
chase and similar means, are liable to gift."
Nilakantha (a high authority on Hindu Law in thia

presidency), in his Vyavahara Mayukha, Ch. IV., Sec. 1,
pl. 8, supports the same view thus :-" In conquest also,
where the conquered possesses ownership of houses, lands,
money or the like, over the same objects the conqueror
obtains ownership; but, if the conquered had only the
right to take taxes, that alone, not ownership, accrues to
the conqueror. Thus in the .6th Book of the Mimansa
'the whole earth ~ not to bo given away by the king ol.
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JIOKBAY mGH COURT REPORTS, 39
the world, nor a whole district by its ruler. The property 1875.
in each village, house, or other part of the whole earth or VYAKUNTA.
BAPUJI
of a district belongs solely to the holder of the soil or 11•
other propertv.>I
The revenue only is to be taken by the OowBoRNMRNT
OF MBAY,
prince.' Therefore in a gift, or other alienation (by him)
of such lands as aforesaid, gift-of-land is not effected: it Judgment.
is only a. provision of an income, but, in purchases from
the landholder, ownership does accrue in the houses, land
-Or other property purchased, and, through ownership thus
acquired, and such objects thus given, the benefits (to the
'donor) of the gift-of-land may really be obtained." This
is a revised translation, the rendering of the same passage
in Borrodaile's translation being obviously incorrect.
Mr. Mountstuart Elphinstone, in his History of India (J),

when treating of the controversy as to the bearing of
Hindu Law upon the question of the proprietorship of the
soil, sums up against the king in these words:-" The con-
clusive argument is that the king's share being limited, as
above, to one-sixth, or at most one-fourth, there must havo
been another proprietor for the remaining five-sixths or three.
fourths, who must obviously have had the greatest interest
of the two in the whole property shared." Subsequently
(p. 74") he says:-" It has been mentioned that the king
can alienate his share in a village. In like manner he often
alienates large portions of territory, including numerous vil-
lages as well as tracts of unapproprio.ted waste. But in
all these cases it is only his own rights that he makes over :
those of the village landholders and permanent tenants,
(where such exist), of district and village officers, and of
persons holding by previous grants from himself or his pre-
decessors, remaining unaffected by the transfer." And,
in a note to the same passage, he observes that" want of
advertence to this circumstance has led to mistakes regard-
ing the property in the soil. The natiYe expression being
'to grant a village' or' a district,' it bas been inferred that
(114th ed., p. 21,
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BODAY HIOH COURT REPORTS,
1875. the grant implied the whole, and excluded the notion of any
VYAKUNT.t. other proprietor."t We may point to an instance of such
8 .U:,~31 an error by Mr. Mill in his note (3) to page 213 of his
GonBoaNMENT History of India, Vol. I., 5th ed., and in the text of the
OP MBAY.
same page.
Judgment.
Some observations of Lord Romilly in giving the judg·
ment of the Privy Council in Gunga Gobind Mundul and
the Collector of the Twenty·foui· Pergtinnahs (99) may be
advantageously quoted here. He says:-" If, as the Gov-
ernment contend, these lands were rent~paying lands, the
title of the Government was simply to the rent, the nature of
which was that of a jamo. or tribute ; and if the holders of
these lands asserted then or subsequently a groundless claim
to hold them free of rent, as Lakiraj, that claim would not
destroy their proprietary right in the lands themselves, but
simply subject their owners to liability to be sued in a re-
sumption suit, the object of which is, not to obtain a for-
feiture of the lands, but to have a decree against the alleged
rent-free tenure, involving the measurement and assessment
of the lands and the liability of the person in possession,
if he wishes to retain possession, to pay the revenue so
• assessed" And again (hh), " the interest of the person in
possession is not a limited, but an absolute interest ; the
title to the lands is one inheritance, the title to the khiraj
or rent is another.'' And again, "it is not the case of a
lease at all, still less of a lease of temporary duration ; it is
the case of an absolute ownership of the lands ; and the
title of the Government rather resembles a seignory than
that of a lessor with a reversion" (ii). And age.in, "there
is no relation of landlord and tenant in such a case between
the Government and the owner of the lands, who is the
+ Et 1'ide Gleig's Life of :Munro, Vol Il., pp. 330, 331, and 4 Bom. H. C.
Rep., p. 7, A. c. J.
(gg) 11 Moore, Ind. App. 346. The title, relied upon in that case, existed
A. D. 17831 and waa, therefore, independent of the Cornwallis pennanent
aettlement.
(M) /1,id,, pp. 369, 360, (it) Ibid., pp. 361, 862,
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BOMBA y man COURT REPORTS. 41
lt1.ndlord, and not a ra.yut. The Government has a title to the _ 1875.
rent or jams. By whatever name it may be called, the VYAKUNTA.
. ht a.nd t1·tle 1s
ng • to t h e ront sub stant1a
. 11y : 1t
. d oes not m·
. BAl'UJt
r.
elude a. right to the posseuion of the lands, though such a. ~~v;~:=:;.T
right might a.rise by forfeiture or extinction of the owner-
ship" (jj). ' Judgmi!nt.
The Court of Directors, in a. despatch written in 1822 to

the Government of Bombay, speaking of a. draft Regulation
prepared for the purpose of giving greater validity to the
result of surveys yet to be undertaken, said :-" The pre-
amble, as it originally stood in the draft prApo.red by Captain
Willia.ms, is much more correct than the preamble as altered
at the suggestion of Mr. Prend~t (a. member of coun-
cil), which o.sserts the proprietary right in the land to be
vested in the Ruling Power, whereas in the draft of Captain
Williams it is stated that the Ruling Power is entitled to a.
certain she.re of the produce of the land." Rev. Sel., Vol.
IV., p. 646, paro. 59.
Sir Thomas Munro, indeed, in a letter of the 15th August
1807 (Revenue Selections, Vol. I ., p. 94), proposing, to the
Board of Revenue, a plan for permanently settling the Ceded
Districts on the rayutva.ri principle, said:-" Nothing can
be plainer than that private landed property has never
existed in India, excepting on the Male.bar Coo.st." The
context, however,of that letter shows that by" private landed
property " he meant land assessed so low as to_ command
a ready sale. Referring to Aurangzib's opinion that "one-
half of the gross produce was in general enough for the
rayut, and that he ought in no case to have more than two-
thirds," .Munro says :-" The mode of assessment, in the
Ceded Districts and in the Dekkan, still limits the share of
the rayut to those proportions, but makes it commonly
much nearer to one-half than two-thirds of the produce.
If, by fixing the Government rent at one-third, he wore
allowed to enjoy the remainder, and all such future increase
as might arise from his industry, he would never relinquish
(.iJ) [bid., p. 362.
B 171-/
Digitized by Google A
~ - his farm, and all cnltivated land wonld soon become private
VvAKUNTA property. If more than one-third is demanded as rent,
BA!_un there can be no private property ; for it is found, when land,
GoVJ1:Bo1tNMBNT which has formerly been inam, is assessed, that as long as
OF MBAY.
the rate is not more than one-third of the prodnce, the
Judgmmt. land is regarded as a private esta~, and can generally be
sold; but that whenever the rate exceeds one-third, the land
is scarcely ever saleable, is no fonger reckoned private proper-
ty, and is often abandoned." A minute, from which we shall
largely quote, written by Munro in 1824 when he was
Governor of Madras, and when his knowledge of India had
become much wider than it was in 1807, admitted the exist-
ence of private property in land in many regions besides
that of the Malo bar Coast, within which coast he doubtlees
intended to include Ko.nara when he wrote in 1807.
Mr. J. W. Ellie, a very weighty authority on ench a subject

(a), accounting for the absence of texts, in the Hindu Law-
booke, ~pressly conferring upon the raynte property in land,
"· thongh the existence of such property under a variety of
terms, and for a variety of purposes is allnded to in every page,"
adds :-" The fact is that the thing existed in India when the
Lawgivers wrote, and it was evidently snperfiuoue for them
to prescribe what they found fully established'' (b). Immo
magna auctoritatis hoe j11..s habet,lr, <[I.IAX1, in tantutn proba-
tum est, ut non fuerit necesse scripw id comprehendere (c).
In hie judgment in Thakooranee Dossee v. IJi&heshur
Mookerjee (d), Morgan, J., regards property in land under
the native rulers as "a kind of joint ownership between
the Government and the cultivator." He says:-" The
(a} He rendered considerable asaiatance to Sir Thomae Strange in com-

posing his treatise on Hindu Law, aa hu been acknowledged by that learned
author-I Stra. H. L., Preface, p. xxiii. of Ed. of 1830.
(b) MiraBi Papen published in 1862 by permiaeion of the Madru Goy.
emment, p. 197, note 89, et vide Ibid p. 82, paras. 99 and 100, to the ume
effect by Mr. LuahiDgion, Collector of Tinnevelly, in his Report of 29th
December 1800.
(c) I Dig. 3, 36 (Paulus. ) (J) Beng. L. R. F. B. 295.
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BOMBAY HlOil COURT REPORTS. 43
right of the cultivator to hold his land as long as he paid 1875.
assessment to Government never was questioned."
----
VYA.ltUIITA
BA.PUJI
Theoretically, it may be th&t proprietorship may, as Sav- Go 11•
• VD1'11B!M:
1gny (e) argues, be regarded as derived from the State, by ol' BoKBA.v.
whose sanction and under whose protection it springs into Jvdgment.
existence and is perfected, in which sense it was said of
the contribution fonci~e, when imposed by the Constituent
.Assembly upon landed property in France : " On pourrait
done dire avec jmtesse que c'est la propriete qui e11t soul6
ch.a,,·gee de la contribution, et que le proprietaire n'est qu' un
a.gent qui l'acquitte pour elle avec un porti-On des fruit,
qu' elle lui donne" (!). This right of participation of the State
in the produce of the land, which always may and in urgent
circumstances must be asserted, prevents, a.s Jagannatha
substantially contended, an unburdened ownership, but no
more excludes private proprietorship than the Land Tax
in England, which, in the time of William III., is said to
have amounted to 40 per cent of the Public Revenue (g).
This proprietorship of the soil took various aspects and
names in India. It is found in the village communities formed
in early Hindu times (h}, which still exist in great strength
in the Panjab {i), and of which the most perfect types in this
Presidency are the Bhagdari and Narvadari villages in parts
of Guzerat (j). In the western and southern regions of India
the property of the rayuts in the soil has in recent centuries
been widely known under the name of Miras, a term borrow-
ed from the Mahomedan invaders and rulers of a great part
of the country. Some of the wisest of these no doubt revived
that proprietorship in districts where it had become faint or
(e) Trait6 de Droit Romain plac. L Vil. Traduction Franoaiae, par M.
Ouenoux, Tome L, p. 375, 1st Ed.
(/) DeParien, TraiM dea lmpote, Vol. J., p. 2211, 2nd Ed.
(g) Ibid. p. 178, and Journal of the Statistical Society, Vol I., p. 247.
(4) Campbell'• Modern India, 84 et uq.
(i) Ibid. and Campbell's Land Tennrea of India, pa,sim.
(j) Capt. Cruickahank'a Report loth October 1827, paras 27, 28; Robert.
son's Glo88ary, 27 (8), 35 (1), 42 (6, 7, 8, 9); Mr. Pedder', Report, Bombay
Printed Government Records No, CXIV, pa~~ini; Bom. Reg. VIII. of 1827,
Bombay Act V. of 1862.
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BO){JIAY HIGH COURT REPORT!!.
1875. nearly extinct in the presence of oppression, war and rapine,

VvAKUNTA and hence have been sometimes accredited with its crea-
BA!.uJI tion. It would, however, be a partial and snperficial new
GovERNMENT of the subject of the rayu"t'.s property in the soil to hold
OF BOMBAY, • • Th ,,.. '
that it originated with the Mussulmam pnnces. e .lllll'&SJ
J11dument. Papers published in 1862 by Mr. W. Huddleston, Secretary
to the Madras Board of Revenue, with the sanction of the
Government of Madras, exhibit the various phases and
names under which the Mirasi tenure existed in that Pre-
sidency or the greater part of it. In some places the
traces of it were faint, in others almost obliterated, and in
these virtun.lly extinct. In others again it was at.ill strong.
Amongst these papers (p. 176) is the valuable reply of Mr.
F. W. Ellis to the seventeen questions, as to Mira.si right,
put by the Government of Madras to its Collectors in August
1814 (k). That reply is also published in the Revenue Selec-
tions, Vol. I., p. 812. He says that the word 'Miras' is
Arabic, originally signifying inheritance (l), but, like other
revenue terms, passed to the languages of India through the
Persian (whence the final "i" with which it is often written),
and is in Southern India employed as a general term to
designate a variety of rights, differing in nature and degree,
but all more or less connected with the proprietary possession
or usufruct of the soil or of its produce." In describing
the various acceptations in which it is used, he says :-
" That right to the hereditary possessum, or, as some con-
sider it, to the occ11pation of land, differing locally in mode.,
but always the same in essence, universally known by the
people and generally allowed by Government in all the
provinces under this Pre'1idency, the Northern Circars and
the Ceded Districts excepted, is called Mira11" .His note
upon that passage is important; it is this :-" 0 enerally
speaking, Mirasi right in land prevails wherever the Tamil
language is spoken, and all terms~ expressive of this right
and its incidents, belong to this language; this specification
(k) Those questions are printccl in the Mirasi Papers, pp. 165, 156,
,t sr,q.
(l) Wilson's Glo88ary, 342, and Forbes' Hind. and Eng. Die. concur in
Uus interpretation of .Mir!l8.
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JK)MBAY HIGH COURT REPORTS. 45
does not exclude the provinces now called Malo.bar and 1875.
Kanam, for Malayalma, the dialect of the former, and Tuluva., VvAKUNTA
BAPUJI
the dialect of the latter (for Ka.narese is not the Native 11•
tongue of this country, but of the conquerors or colonists GoVEBo11.NMBNT

OJ' MBAY.
of it), are immediate derivatAves from the same source as the
modern Tamil." The word Miras, when adopted into Tamil, Judt.rment.
Mr. Ellis says, "taking the idiomatic termination of that
tongue, becomes Mirasu" (m). But the ancient Tamil desig-
nation of it is Kaniyatchi (corruptly Oaniyatchi, Canachi,
Kanachi, Oainatchy). It is derived from kani, a. Tamil
word signifying " property, possession, right of possP.ssion,
hereditary right," and atchi, which is Tamil for heritage,
inheritance, a domain, or lordship obtained by inheritance,
a right, a privilege, power or dominion (n). Professor Wil-
son says that Kaniyatchi is used in the Tamil countries,
and is equivalent to the term Mirasi (o). Mr. Ellis, in his
note to Sa.nkarya's replies to the Government questions,
observes that Kaniyatchi," in its general sense, is the native
term for which the foreign term Mirasi has in latter times
been substituted," but that "in the districts to which "
Sa.nka.rya.'s answers "more particularly apply, it is restrict-
ed to mean the Manyams, Cuppatams, and other special pri-
vileges of tho Mira.sudar, considered as the symbol of their
proprietary right in the soil" (p). Uzhava<lei has the same
meaning as Mirasu or Kaniyatchi when used as a general
term (q). In Malo.bar the Sanskrit word Janma (signifying,
in its primary sense," birth," corruptly Jalm, Jalma, Jenm,
&c.; and in Tamil, J anmam is used to indicate birthright
and hereditary property in land. The hereditary proprietor is
there styled Janmakaran, or Janmkar, corruptly Jcmnaca·r
or.Jelmkar (1'). Amongst Brahma.us, Mirasi land is known
(m) Mirasi Papers, p. 176, note I.
(n) Wilson's Glosll&l'y, pp. 38, 268, Mirasi Papeni, 182 (n. 19).
(o) Wilson's Glosll&l'Y, 258.
(p) Miraai Papeni, p. 218 (note 2). The districts in which this special
meaning is given to Kaniyatchi is Tanda-Mandalalh.
(q) Jbitl., p 218 note 3.
(r) Wilson's Glossary, 231, 232; Monier Williams' Sansk. Bnd Eng. Die.
33, 8; Miraai Papers, 177 (n. 5), 179 (para. 6), 180 (para. 7.), 201 (para. 12);
Revenue Selections, Vol. I., 889 to 894.
Digitized by Google
46 BOMBAY HIOB COURT .REPORTS.
1876. by the Sanskrit term Swaathyam and t-he Mira.sidar I i

Vvuul(TA Swastiyamdar (s). Swaathyam is derived from the San-
BAPUJI
"· skrit Sva, which, when treated as a pronoun, signi fi ea et OWD,
GovuBoNMBNT one's own, my own, his own, &c.," according to the context;
~ MUL .
but, used as a substantive, means " kmsman " or et pro·
Judgment. perty" (t). A compound of jt, Sva-,tl,ana, means u one's
own place, own home'' (u). It is necessary here to re-
call to memory what we have already mentioned, that,
in Kanarese, Mulavarga denotes original proprietary right .
in land, and Mulavargdar, (which the plaintiff claims to i
be) the proprietor of an ancestral hereditary estate.
The whole tenor of the report of Mr. Ellis, in 1816, 01
Mirasi tenure and the ancient documents, translations ol
which he furnished in the appendix to it, favour the opinion
that, notwithstanding its modern name of Miras, the tenure
was of Hindu origin, and was no other than that priva~
property in the soil which, if not directly expressed, wu,
he thought, unmistakeably implied in the writings of the
ancient Hindu lawgivers (v). There is, as we shall presently
see, reason to believe that the same remark may be made
with regard to Mirasi tenure in the Presidency of Bombay.
Mirasi land must be distinguished from official Miraei (the
Mirasi of village officers), of which we shall say no more than
to notice its existence (w). Miraei in land is the only cl,w
of .Miras which demands our attention in this case (z).
Our object in treating of it will become more apparent
when we revert to Munro's minute of 1824. Whatever
diversity of opinion as to the ownerahip of waste lands
may have existed amongst the Revenue Officers and other
authorities whose views are preserved in the Mirasi Papers,
(a) Wilson's Gloaaary, ,97 ; Miraai Papers, 106.

(t) Monier Willi.am.e' S. and E. Die., 1156.
(u) Ibid., 1167.
(v). See also Mr. Lnshington'a Report aa Vollector of Tinnevelly, oa
29th Deeember 1800; Mirasi Papers, p. 82, para, 99, to the same ell'ec:t..
. (w) Miraai Papers, pp. 176, 177 t.t ,eq. ; p. 373, para fr1 et 1tq.
(x) "In Malabar," .Mr. Ellis aaye, "there is no official Miraai, in Kanan. ,
none but that of Shanabhogaa (i,e. village accountant, and n,venue o8ioen). '
Jl.,i<l. p. 181.
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BOMBAY lllOll COURT REPORTS. 47
there would seem ~ have been a general consensus of opinion 1875.

amongst them that, in cultivated lands held on .Mirasi tenure, VYAK.UNTA
the holders enjoy an hereditary and transferable estate (Y).. BA!~JI
Mr. Smalley, Collector of Cningleput, on November 4th, GoVER.NHBNT
1820, writing to the Madras Board of Revenue in support ov Bo.llllAY.
of the Mirasidars, then known as Caneyatchi carsrs, says : - JtAd(lmem.
"Within the last sixty years there is, I think, a very sub-
stantial proof of the nature and value of Kaniyawhi, which
is that Rayaji, Dewan of the Nawab of the Kame.tic, pur-
chased it in order to present a village to some Brahmans" (i).
And the Court of Directors, in a despatch of August f 8th,
1824, to the Madras Government, say:-" The right of Miras-
dars, to the lands which they themselves cultivate, is, in
· general, indisputable " (a).
This right must of course be understood as dependent on
the performance by them of the duties which, in respect
of it, they owe to the State (b).
Miras differs considerably in the various districts. In
the tract of country which received the special attention
of Mr. Ellis, known to the natives by the name of Tonda-
Mandalam, extending from the limits of Nellore nearly to
the Coleroon River, and embracing the two divisions of
Arcot and the Jagir, Miraei land is, he says, "marked by
distinctions nowhere e18e known, the proprietary Mirasidars
holding a certain extent of land free of all assessment, " such
exempted land being called Kaniyatchi~Manyam, whence
the Mirasidare known in other provinces by the names of
Kanikarer, Kareikarer, Janmalrarer, &c., are in Tonda-Man-
da.lam called Kaniyatchilrarer (c). Continuing hie descrip-
tion of the Mirasidare in Tonda-Mandalam, he says that they
are " entitled to receive fees under the various denominations
(y) Miraai Papera, pp. 85, 89, 90, 91, 94, 98, 99, 106, 106, 154 (para. 17),
)96, 197, 226, 394,400,401, 406, 423.
(z) Mi.rasi Papers, pp. 401, 402. See u to Caneyatchi, pp. 218, (n. 2),
177, 372, 373, 37 5.
(a) Mi.rasi Papers, p. 423.
(b) Mirasi Papen, pp. 82 (para. 100), 85, 89, 186,221,222,400,410,411,
414, 415, 421, 425 (para. 17).
(c) Mirasi Papers, p. 177,
Digitized by Google
48 D01'DAY IIIOO COURT REPORTS,
1875. of Cuppatnm, &c., &c. This species of Mimsi is divided int,)

VYAKU!ITA two kinds: Pas1.1,ngcarei (Pasunkarai) where the whole
BAPUJI •
"· lands of the village are held jointly, and either cultivat-
0:;~~~~ ed in common, or divided yearly or at some fixed period.
according to established custom among the proprietors :
Judvment. A rudikarm'., where tlie lands are held in severalty and subject
consequently to no periodica.l distribution,, (d),
With regard to provinces other than Male.bar and Kanan,

we do not gather, either from the report of Mr. Ellis, or th~
other documents comprised amongst the Mirasi Papers, th3t
the rent or revenue payable by Mirasidars to the State w-a,
permanently fixed. As to Ma.la.bar and Kanara, what Mr.
Ellis says is as follows :-" In the three southern provinc~
of the tract called by the natives Malayalam, the coast of
Malabar, there are no villages and consequently no rights
of any kind in common; each family of N6.yers (Nairs)
reside ape.rt on their own estate and hold their janmam
right free of all participation or control, and,form,erly, free of
all rent, the share which the law gives the sovereign in the
produce of land having been commuted for military service,
each N&du or district being assessed at &10 many armeJ
Nayers (e), instee.d of so many measures of grain, or so many
veray fanams. This was also the condition of the fourth
or northern division of Malaya.lam, Tulu-Nadu, now called
Kanara, before the foundation of the Vidyanagara, or, a.i
corruptly called, the Dijanugger empire, in which this dis·
trict was, by force or agreement, included : a general assess-
ment was then introduced, grounded on the share allowed
by law to the sovereign in landed produce, one-sixth ; this
has since, by successive additions, been considerably increased,
but does not appear to have operated any considerable altera-
tion in landed tenures, which, divested of all community of
rights, like those of Ma.lo.bar, are nearly the same as those
which obtain in the A rudi-karei villages to the south of
(d) Mirasi Papers, p. 178, Wilson'a Glossary, 33, 406.

(e) It will be aeen infra p. 78 that Munro, Col. Wilk.a, and the Board .i
Revenue state that the grain ae111i1111ment of one-sixth existed from ume
immemorial previously to the Vidy"nagara empire.
Digitized by Google
BODAY HIGH COURT RJ:PORTS, 49
the .Coleroon. There appears, however, in practice to exist 1875.

this essential difference, that, though the mortgage, assess- Vu1tUNT.A.
Buv.n
ment, and temporary or permanent lease of Mirasi land "·
are known in the districts of Taniore,
.J
Madura, and Coim- GovnBoNKDT
011 ~Y.
batore, they are not generally prevalent, the actual cultiva-
tion of the lands being more or less in the hands of the JtMlgmffll.
Mirasidars, by whom the Sarkar revenue is paid ; on the
contrary, subordinate tenures of all kinds are very common
in Kanara.; and, in many districts of Malabar, the possession
of the land has passed. from the proprietary Janmakar to
under-tenants of various descriptions, who render him a
Swami-bhogam or acknowledgment of superiority, pay the
Government rent, and enjoy all remaining profits"· (!).
With respect to the Mirasi tenure, it was necessary to quote
that passage from the report of Mr. Ellis here, although it,
to some extent, anticipates the history of the land revenue
in Kana.ra, of which subsequently · we must speak at some
length. Until the conquest of Malabar (A.D, 1766 (g) ) by
Hyder Ali, that province remained free from land tax, but
he immediately declared half the produce to be the share
of the Sarkar. The mode in which his revenue officers
carried this declaration into effect was by assessing each
Janmkar's estate at the rate of 50 to 60 per cent on the
patom (rent) receivable by hilll from his tenants (patomkars)
· (h). It would seem also that Hyder Ali's deputy introduced
the system of a quinquennial revision of the land revenue
(i). ~ the conquest of Malabar by the British it was found
that its assessment was very unequally distributed (;), and
that few of the Janmkars were in occupation of their lands,
although many still retained a considerable portion of the land-
lord's rent. This condition of the ancient proprietors was
caused partly by the oppression exercised by Hyder Ali an,sl
(f) Mirui Papers, p. 179.

(g) Wilke' Hist . of Myeore, pp. 289 to 293, Hadru reprint of 1869.
(la) Minute of Madru Board of Revenue of 5th January 1818, para. 31
and note• thereto. Revenue Selections, Vol. I, pp. 891,892.
(i) Ibid. note t to para. 82 P• 892.
(j) Ibid. pAra1. 32 to 34. Viele infra pp. 99, 100, u to periodical reYiaion
of land uee111t11ent.
B 117-g
DigitizedbyGoogle ~
60 DOKBAY HlQll 000'1!.1' Rl'POK'l'B,
1875. Tippoo and partly by the indebtedness of the J anmbn.

VuxuNTA The lands were, for the most part, in the hands of Kanum-
BuuJ1
•. kars (mortgagees without power to foreclose) or Pat.om.bn
~B!~~ (tenants) (k).
.,~- Mr. Mountstnart Elphinstone., in his valuable report of the
25th October 1819 (l) on the territories conquered from the
Peishwa, now forming part of the Presidency of Bombay,
in treating of the Mira.si tenure, says that the result of the
reports of his three Collectors and of his own inquiries
was :-" That a large portion of the rayuts are the pro-
prietors of their- estates, subject to the payment of a fixed
land-tax to Government; that their property is hereditary
and saleable, and they are never dispossessed while they
pay their tax, and even then they have for a long period
(at least ·thirty years) the right of reclaiming their estate
on paying the dues of Government. Their land-tax is bed;
, but the late Mah.ratta Government loaded it with other
impositions, which reduced that advantage to a mere name;
so far, however, was this from destroying the value of their
estates, that, although the Government took advantage of
their attachment to make them pay considerably more than
an Oopari (corruptly Oopree), and though all the Mirasidan
were, in ordinary ea.see, obliged to make up for fail1Jl'e8, in
the payment of each of their body, yet their lands were
saleable, and generally at ten years' purchase. This fact
(he adds) might lead us to suppose that, even with all of the
exactions of the late Mahratta Government, the share of the
rayut must have a.mounted to more than half the produce
of the land ; but experience shows that men will keep their
estates, even after becoming a losing concern, until they are
obliged to part with them from absolute want, or until
oppression has lasted so long that the advantages of pro-
prietorship, in better times have been forgotten. The
Mira.side.re are perhaps more numerous than the Ooparis
all over the Mahratta Country • In the Kama.tic, I am
(k) Ibid. paraa. 35 to 39, pp. 892 to 894.
(l) Revenue Selections, Vol. IV., p. 159, 160and twice since eeparately
printed.
' Digitized by Google

IIOKB.&Y HIGH COURT lt'BPOB'l'lt, &1
informed by Mr. Chaplin, that they do not exist at all. 18715.
:Beside ' Miraeidar > they are called ' Thulknri ' about Poona. VYAKUNTA
• 1 _ BAJ'OJJ
~n opinion pr•vaila throughout t,116 Makratta Country, "·
that under, the old Hindu Government all t"Ae lan.d wa., GoVBRBoNllBKT
OJ' llDIA1',
Aeld by M1,rallia; and that the Ooparis were introduced, a.a
the old proprietors sunk unqer the tyranny of the Ma.ho- Judgmml.
medans. This opinion is supported by the fact that the
greater part of the fields, now cultivated by Ooparis, are
recorded in the village books as belonging to absent pro-
prietors; and affords, when combined with circumstances
observed in other parts of the Peninsula, and with the light
land-tax authorized by Manu, a strong presumption that the
revenne system under the Hindns (if they ha.d a uniform
system}, was founded on private property in the soil. All
the land which does not belong ,o the Mirasis, belongs to
Government, or those to whom Government has assigned
it. The property of the zemindars in the soil has not been
introduced or even hei.rd of in the Me.hre.tt.a Country. The
cultivated land belonging to Government, except some parts
which it keeps in its own hands to be managed by M1m-
la.tdars, was always let out to Oopa.ris, who ha.d a lease ; with
the expiration of which their claims and duties expired.'•
Subsequently he remarks:-" The assignment, by Govern-
ment, of it.a own revenue or share of the produce will be
mentioned heree.fter. It need only be observed that, in
making these grants, it could not transfer the share of a.
Mirasidar. .Even Bajirao, when he had occasion for Mira.si
land, paid the price of it.'' In saying the zemindars have
no property in the soil, be was speaking of the soil a.t largeA
and not intending to deny that they were occasionally
owners of portions of land in the pe,rga.nas in which they
exercise their offices. This appears from his observations
(pp. 20, 21) upon Deshmukhs and Deshpandes, who per-
formed in Maha.rashtra. duties somewhat similar to those of
the zeminda.rs of Bengal, and were sometimes found to be
proprietors of five acres in each hundred. He further (p.
22) says :-" Deshmukbs and Deshpandes, as well as Patils
and Kulkarnis, sell their own land and fees (or vatan e.s both
Digitized by Google
52 BO)[liY MGR COURT UPORTS,
18711. are calleclj, but neither pretend to any property in the rest
VYAKUNTA. of the lands.''
BA.PUJI
"·
GonRNMB!IT The Board of Revenne
.
at Madras, in their elaborate mi-
o• Bo11Bu.
nute of the 5th January 1818, speaking of the rayut land-
Judgmmt. holdel'B, said : -
" 18. The universally distinguishing cha.?'8.Cter as well as
the chief privilege of this class of people, is their exclusive
right to the hereditary possession and usufruct of the soil,
so long as they render e. certain portion of the produce of
the land, in kind or money, as public revenue; for whether
rendered in service, in money, or in kind, and-whether paid
to RajB?-s, Jagirdal'B, Zemindars, Polyga.rs, Mootehdars,
Shotriumdars, Manie.mda.rs, or Government officers, such as
Tehsilda.rs, &c., the payments which have always been made
by the rayut are universally termed and considered the does
of the Government."
"19. The hereditary right of the rayut, as above de-
scribed, though everywhere of the same, or at least of a
similar nature, is in value very different in different districts.
After discharging the wages of his hired labourers, and
defraying the subsistence of his slaves, or other immediate
expenses of cultivation, if the public assessment payable
by him is so moderate as to leave him a. considerable annual
surplus, his interest in the soil is that of the landlord. and
his land yields a clear land rent, and is of course a saleable
and transferable property; but where the revenue payable
by him is so high as to absorb the whole of the landlord's
rent, and to leave him a bare and precarious subsistence only,
his interest in the land dwindles into mere occupancy, and
from a landlord he is reduced to a landholder, still indeed
clinging to the soil and subsisting by tilling it, but no longer
possessing any saleable 11roperty in it."
" 20. The value of the rayuts' right, therefore, varies with
the weight of the public assessment of the land, which is gen-
erally found to be heavy in proportion to the length of time
that the country may have been subjected to the :Mahom-
meda.n Government. Ou the west~rn coast of the PeninsulaI
Digitized by Google
BOKllY HIGH COtJBT UPO:IT8, 53
-where the Moasulman'a power was both of the moat reoent 1876.
introduction and of the shortest duration, this right con- Vua:un.A.
B.A.PtJJI
stitotes a property of great value, which is vested in each 11•
individual rayut. In the Tamil country it is vested more o;;::

frequently in all the rayuts of a village collectively than in
each individually, and is of less value than in Kanara and ludgr,t,ertl.
Malabar, and sometimes of little or no value as a saleable
property. In the Ceded Districts and Northern Circars, which
weTe the longest under Mahommedan rule, though the
Coonbees, Reddies, Naidoos, and other kadim (ancient} inha-
bitants assert their hereditary right to a priority and pre-
ference of occupaJ1cy, they do not now appear to possess
any saleable property in the soil."
This review of the authorities leads us to the conclusion

arrived at also (after careful discussion of the question) by
Professor H. H. Wilson (m}, that "the proprietary right
of the sovereign derives no warrant from the ancient laws
or institutions of the Hindus, and is not recognized by
modern Hindu lawyers as exclusive, or incompatible with
individual ownership."
We shall now consider how the qneation, as to the prop~r-
ty in the soil of India., stood by Mahomedan Law, and, inci-
dentally thereto, the amount of land revenue leviable under
the same law by the State. These points have been the
subject of an able disquisition by General, afterwards Sir
Archibald Galloway, who, in his work on the Law and Con-
stitution or India, published in 1825, contended with much
ability that the Mahomedan Law was the le:t 1-0ci or India.
He would, however, appear to have regarded the Hindu Law
as far more completely abrogated and fallen into oblivion
throughou, India during the seven centuries of Mahomedan
dominion of which he speaks (n), than history would at all
seem to ju11tify. On reference to Steele's Law and Customs
of Hindu Castes, in which there is a long list of Hindu Law
books written in Sanskrit, frequently exhibiting the respec-
(m) Mill and Wilson's Hiat., Vol. VIJ., p. 298, 6th Ed.
(11) P. 7, d letJ, 11 d WJ• 31 et ,e'J.,
Digitized by Google
IOJDU.T HIGH COUBT DPOBTI.
tive dates of their composition, it will be seen that nry

1875.
many of those books were written during the Mahomedan
Vu1u:r:irr1.
B~~n period. Amongst them is the Mayukha Vy a ~ from
'!:~=.-'
which we have already quoted. It wu written about 300
years before the publication of Steele's work in 1827, and
J ~ ia there stated (p. 7) u "of chief notoriety in the Karnatio.,
though attended to both in Poona and at Benares ;" to which
we may add-and especially so in Guzerat and Bombay.
There are in that list many other Hindu Law books of later
date. It should also be recollected that at times the
Mahomeda.n power greatly fluctuated, and that, even when
it was at ita zenith, there were always some parta of India
under Hindu Governments and Hindu influence. The
considerable extent of that influence even on Ma.homedan
sovereigns is clearly indicated by Mr. Patton in Parts II.
and Ill of his Principles of Asiatic Monarchies. (See also
Grant _Duff's Hist., Vol. L, pp. 26 et aeq., 70, 92.) However,
as to what the Mahomedan Law itself was, considerable
reliance may be placed on Genera.I Galloway (o). At page
13 of his work he speaks thus :-
" The Moohummuda.n law of conquest is explicit; and the
first act of the conqueror is required to be to carry the law
into effect, either by partitioning the spoil and lands among
the conquerors, or by fucing the khardj, or public revenue, on
the lands, and the capitation-tax (jirzeeah) on the heads of
the conquered. The inhabitants are first called to embrace
the faith. If they become converts, they enjoy all the pri-
vileges of Moslems ; if they refuse, they are then called
upon to pa.y the capitation-tax ; for, if they consent to this
and to pay the kharaj, it is not lawful to put them to death."
In the case of" all land conquered by force of arms and
suffered to remain in the hands of the people, the Imaum
shall fix the capitation-tax upon the inhabitants (lit. on
their necks), if they do not embrace the faith; and, on their
lands, the khatij, whether they embrace the faith or not."
This latter passage he quotes from Suranj ool Vuhanj,
(o) &e 7 Mill and Wilson's Biat., 6th ed., p, 297, Note 3.
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BOllBJ.T HIGH COURT HPORT8. 55
At page 32 General Galloway quotes from the same author 1876.
thus :-" The land of the Suwand of Irak (a conquered VTAK.U.NT.t.
B.il'U.Tl
province) is the property of its inhabitants. They may 11•
alienate it by sale and dispose of it as they please; for when c::;v~.;.s;_r

the Imaum conquers a country by force of arms, if he permit
the inhabitants to remain in it, imposing the kharaj on their Jwlgment.
lands and the jizeeah (capitation-tax) on their heads, the
land is the property of the inhabitants ; and eince it is their
property, it is lawful for them to sell it, or to dispoee of it
as they choose" (p). This statement is confirmed in 2
Hedaya, Bk. IX., Ch. VII., p. 205 of Hamilton's translation.
The Mahomedan Law, as laid down in the above passages,
is that of the school of Ha.n.ifa, which was that mainly
prevalent in Hindostan. In support of that predominance
General Galloway (q) gives the following extract from the
introduction to a Farman of the Emperor Alam Gir (Aurang-
zib) :-" We have deemed it expedient to issue our royal
edict to all officers interested with the management or affairs
throughout Hindostan, directing them to levy the khartij
in the mode and proportion enjoined by the holy law and
the tracts of Abu Ha.nifa." The three other sects of the
Suni persuasion (the Shafeas, Malikias, and Humbulias) were
in favour of the vesting of the property in the soil in the
State (Galloway, pp. 37, 38, 39; Mill and Wilson's Hist.,
Vol. VII., p. 297).
At page S9 General Galloway continues :-
" Adverting to the difference of tenets among the Soni
Imanms, the learned Hanifia SurrukhRee observes that 'the
learned have differed in opinion with regard to land conquer-
ed by force of arms, on which the Ima.um has suffered the
inhabitants to remain on paying the kharaj and jizeeah.
Some say that the lands are the property or the Moslemen
(i.e., of the State) and that the inhabitants are slaves-
aabeed-of the Moslemen, upon whom may be imposed
whatever burden the liege shall determine, as a master may
(p) See alao Galloway, p. 65. (q) P. 37,

j
56 JIOKB.lY HIOII COURT UPOM'B.
1876. on his slave. But, according to our law (the Hani&.a) the
Vu1mrr..a. inhabitants ittre freemen, as zimmees ; their lands are their
B.u;,~.u indefeasible property, and that which is exact.eel from them
C:.1!=. is kharaj.'" And again:-" On the whole then, according
to the Hanifia. law, if a Moslem army conquered a non-
Jv.dg,M,il. Moslem province or kingdom by force of arms, and the con-
queror chose to suffer the inhabitants to re~in in it, hi,
duty would be, either himself or by commissioners (as Omar
did in settling the kharaj of the province of Ira.k), to parti-
tion the lands among them and to fix the land-tax. Tho,e
who share in this partition are the proprietors of the soil for
·ever, and may not be disseised of it, without their consent,
ao long as they pay the land-tax."
Colonel Wilks (z,) gives these quotations to the same
effect:-
" In the book Khaianatul Rewaya.h it is written :-' Tri-
butary land is held in full property by its owner ; and 90 is
tithed (or decimated) land; a sale, a gift, or a charitable
devise of it is lawful, and it will be inherited like other pro-
perty. Thus in the book Mohodeyah, in a passage quot.ed
from .Almohit (a work of the lawyer Mahomed,) lands are
held in full property by them, they shall inherit those lands,
and shall pay the tribute out of them ;' and · in the book
.Alkhanujah it is written, ' The sovereign has a right of
property in the tribute or rent; ' so in the book Modena
8ha-rhi Baai it is written, ' A town and the district annexed
to it shall not be sold by the sovereign, if it pay tribute or i
rent to the crown, nor shall it be given, nor inherited, nor
shall it belong to the royal domains; for inherit.a.nee is i
annexed to property, and he who has the tribute from the .
land has no property in the land ; hence it is known thas 1
the king has 1w right to grant the land whi'ch pa.y• tribll.u.
'but that he may grant the tribute arinng from it.' "
General Galloway (p. S5) cites Abu Yusuf as holding that
if the tenant of khar,ji land can afford to cultivate it, bui
(p) Hilt. of Myaore, Vol I., p. 117, lrfadnl reprint of 1869.
Digitized by Google
neglects to do so, he shall not compel him to labour, but he 1875.
shall take from him the, kharaj. If the tenant sublet his Vu1nrNTA
B4PVII
land, he is still held to be the cultivator and responsible to "·
the State for the kharaj (Ibid 37). '::;~
The Mahomedan La.w, even of the Hanifia School, made Jtldgme1t1.
a strong distinction between cultivated and waste land.
General Galloway, at p. 91 of his work, says :-
" By the Moohummudan law the land revenue of the
crown wa.s fixed on the amble la.nd only. That alone was
given away to the husba.ndma.n, who became the owner.
All other lands ~mained the property of the State, and were
ready to be given away, on application, to any one who
would undertake to cultivate them. If he did cultivate,
well ; if not, within a reasonable time, which was limited to
three years, the land was ta.ken from him, and might be
given~ another. By la.w, therefore, it is evident that no
right can exist in a.uy individual, or body of individuals, to
any oth~r description of land than that which is cultivated.''
The different rule as to waste land is also thus noticed in
· the Hedaya., Vol. IV., p. 129 :-
" Whosoever cultivates waste lands, with the permission
of the chief, obtains a property in them; whereas, if a per-
son cultivate them without such permission, he does not in
that case become proprietor, according to Hanifa. The two
disciples maintain that, in this case also, the cultivator be-
comes proprietor, because of a saying of the prophet, ' Who-
aoever cultivate, waste lands does thereby ar.quire the pro-
perty of tliem ;' and also because they a.re a sort of common
goods, and become the property of the cultivator in virtue
of his being the first possessor ; in the same manner as in
the case of seizing game or gathering firewood. One ar-
gument of Ha.nifa on this point is a. saying of the prophet,
' Nothing is lawful to a11y person but what is permitted by
tM Imam; ' and with respect to the saying quoted by the
two disciples, it is to be construed merely into a judicial
permission (for the prophet was himself an Imam), in \he
B 117-/t
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58 BOMBAY HIGH COURT REPORT&~
1875. same manner as where he sa.ia, ' Whoever killa an infidel

VvuusTA i, entitled to hi-8 cwmour.' Besides, all waste lands are
BAPUJI
"· plunder, seeing that the Mnseulmans acquired the posses-
~~~:=::.T sion of them by conquest ; and hence no person can assume
a property in them without the consent of the Imam, as
Judgment. holds in all cases of plunder."
At p. 131 it is stated that, according to Hanifa, the con-

sent of the Imam is necessary in the case of a zimmee, as
well as of a Mussulman, before a zimmee can acquire pro-
perty in the waste lands which he may cultivate.
Both Sir Thomas Munro and Mr. Mountstuart Elphin-

stone maintained that the waste lo.nd now belongs, and
has always belonged, to Government. The former, in a
Minut.e of the 31st December 1824, penned by him as Gov-
ernor of Madras, when his experience had reached its
ripest maturity, after referring to the opinion of Mr. Ellis,
that the waste land in Miras villages in Arcot belonged to
the Mirasdars jointly, denied that they had " the right of
ownership" (s). He added, "The Circar (sarkar) from
ancient times has everywhere, even in Arcot as well as in
oilier p1·ovinces, granted waste in ina.m, free of every rent
or claim, public or private, and appears in all such grants
to have considered the waste as being exclusively its own
property. It may be objected that if this were the case, it
• may give away the whole waste lands of a village, and
injure. the inhabitant::1 by depriving them of their pastures.
It certainly might give away the whole, but whether the
exercise of this right would be injurious to the inhabitants
would depend on circumstances (t). And again he says: "In
all villages, whether miras or not, the inhabitants reserve
to themselves the exclusive use of the waste. But this right
is good only against strangers, not against the Circar
(•) Gleig'11 Life of Munro, Vol. III., 328. (Minute of 31st Dec. 1824.)
Mr. Ellis said, however, that the right was limited by the nature of the
waste, and therefore the Miraadara could not cultivate or cut clown the
uluable timber on immemorial waete.-Mirui Papers, p. 184.
(I} Ibid., p. 329,
Digitized by Google
BOJIBAY HIGH COURT REPORTS, 59
( sarkar), which possesses, I think, by the usage of the country, 1875.
t.be absolute right of disposing of the w&ate a.sit pleases, VvuuNu
B.uOJI
in villages which are miras a.s well a.s in those which are. "·
not. In the Dekk~n, in miras villages, the corporation h&a not ~v=:!~
t.he right of disposing of unoccupied l&nd, but the Circar
has" (u). And Mr. Elphinstone says :-" The unoccupied Judgmem.
'1VBBte, &a m a.11 other cases where society has assumed a regu-
larform, must no doubt have belonged to the Ste.te; but the
king, instead of transferring this property to the int~nded
cultivators for a. price paid once for all, or for a. fixed
a.nnna.l rent or quit rent (as is usual in .other countries),
reserved a. certain proportion of the produce, which increased
or diminished according to the extent and nature of the
cultivation. The rest of the produce belonged to the com-
munity of settlers" (v).
The State, he subsequently, at some length, shows, might

grant those waste lands on such terms as it deemed fit and
found practicable. In fact, those terms frequently varied.
The general rule, that waste lands in India belong to the
State, was, A.D. 1843, distinctly recognized and enforced
by the Supreme Court of Bombay (Roper, C. J., and Perry,
J.) in Doe d. East India Company v. Hirabai (w). The
(u) Gleig's Life of Munro, Vol IIL, pp. 329, 330.
(v) Hist. of India, p. 69, 4th ed. See, however, Sir H. S. Maine's Vil-
lage Collllllunities, p. 120. Sir George Campbell, in his E.say, says : -
" A nry important difference between a rnyutvar system and the others
which have been described is thi1, that in the rayutvar provinces all the
waste and unoccupied lands are considered to be Government property,
and, being separately &BB888ed in fields or survey plots, are available to
the first oomer, native of the village or ltranger, who chooses to take.
them upon the prescribed terms. Whether the settlement be made with
the Bengal zemindar or with the Panj!b village community, the lump sum
111118888d includes all the lands of each village area, cnltivated and nncul-
tiv'ated ; and the proprietors may make their own managements for culti-
vating the waste without increase of revenue, except when there is a new
settlement. In Madras and Bombay it is not so ; there, for every new
field cultivated, the Government has an additional revenue."
(to) Sir Erskine Perry'• Oriental C~s, P• 480; and see l Madras H. C•
.RP.ports, 12, 4{17.
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60 BOMBAY HIGH COURT BBPO~.
1875. same rule probably aided Sir James Mackintosh in making

VYAIUNTA the decision, at which he arrived with manifest reluctance.
BA.run
11• a..D. 1805, in Sltaik .Abdul .Amlity v. Ncairvanji Kavasji
UoVDlODNTBo (:i:) in the Recorder's Court, as to the right of the East India
o• Mll.t.v.
Company to resume foras land from a tenant of upwards of
Judgmml.. thirty years' possession, and who had given, to the previous
occupant, valuable consideration for the land. The foras
land question has since been settled by legislation founded
on compromise (y).
Whether certain lands in Kanara which the Mulavargdara
olaim to be their private property, as forming part of their
rorg•, in support of which contention they relied (intm- alia)
upon paragraph 24 of Mr. Blaue's Report (20th Septem-
ber 1848) Exhibit A, pp. 181, 182, are to be regarded as
exceptions to the general rule as to waste lands in India, ia
a. question which, though raised, as already mentioned, it ia
unneceBSary to decide in the present case, and therefore we
do not offer any opinion upon it.
As to the amount 0£ land revenue (tribute) which a
Mussulma.n sovereign may levy in a conquered country, we
first refer to the Hed~ya, Vol. II., Bk. IX., Chapter VIL,
p. 205 : -
" The learned in the law allege that the utmost extent of
tribute is one-half of tke actual product, nor is it allowable
~ exact more; but the ta.king of a half (z) is no more t.han
atnct justice, and is not tyrannical, because, as it is lawful
to take the whole of the peraons and property of infidels
and to dititribute them among the Mlissulmans, it follows
that ta.king half their incomes is lawful a forli-Ori" (a). And,
again, at p. 208 :-" The compiler of the Hed§.ya remarks
that, in oar country, tribute is levied upon all lands in C<Uh :
(z) Mr. LeMeuurier's Report on the Foras Lands. Bombay Govern-
ment Records, VoL Ill, New Series, p. e, para. 17.
(y) Act VL of 1851, 4 Bom. H. C. Rep., p. 40 note {h), 0. C. J., p. 103,
note (t·) ; 5 Bom. B. C. Rep., pp. 13, 14, O. C. J,
{z) Acc. Patton, p. 91.
(a) See aleo, to the same el'ect, Willu' Bi1t. Myaore, VoL I., pp. 101,
102, Madras reprint of 1869.
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BOIIBAY BIOB COURT RKPORT8. 61
but this is immaterial, because the amount of the tribute is 1875.

due, according to ability, either in ca8h, or in the actual VuxuNT.1.
Buu.n
product of the land. If the land be incapable of yielding "·
the established tribute, the Imam must make an abatement, ~~v;::=:::.T
and it is lawful so to do, where the product falls short.
According to Mahommed, it is lawful to exact beyond the Judgment.
established tribute where the product happens to exceed,
judging of a case of incre<Ue from a case of defidency. But,
according to Aboo Yoosa.f, it is not lawful to take more
than the utablished tribute : and this is approved, because
Omar never exacted anything beyond what was established,
upon being inforID;ed of any increase of produce: if, however,
anything be voluntarily given in addition to what is estab-
lished, it may be a.cceptea."
General Galloway, at p. 34 of his work, records arespon8Um
prudenlu, which there is reason to believe was ,occasionally
the rule of practice, at least when the Mahomedan power
wa.s on the wane, an.d especially in the territories ruled by
Hyder Ali and Tippoo Sahib. It is this :-
" But the great Hanifia lawyer, Shums-ool-Aymah-ool-
Surrukhsee, in speaking of kharaj, on the question, What
is the utmost extent of khar6j which land can bear 1 says :
'Imam Muliummud hath said, regard shall be had to the
cultivator, to him who cultivates. There shall be left for
~very ons who cultivates his land as much as he req nires for
hi8 own BU,pport till the next crop be reaped, and that of his
family, and for seed. This much shall be left him; what
remains is kharaj, and shall go· to the public treasury.' ''
Professor H. H. Wilson justly observes (b) that the pro-

perty, which, under snch circumstances, the Mahomeda.n
Law recognised as vested in the cultivator, would seem not
to be very valuable. The same learned and discreet writer(c)
remarked that the ancient Hindu rule, which gave to the
State a twelfth, eighth, or sixth in ordinary times, or a max-
(b) Mill and Wilson's Biat., Vol. VII., p. 299, note 41 5th ed.
(c) Ibid,, p. 209 in the text.
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-
62 BODAY BJOB coun JlZPORrS.
1875. imom of a fourth (and thM only in time of war, invasion,
\"rAXr!n'A or public adversity), " evidently left such a share to the cu}.
BAPt"n
.. tivator 88 W88 equivalent to a profit upon bis cultivation, or
°:.~ to a rent enabling him at bis will to transfer the task of
cultivation to tenant farmers, and placing him in the posi-
Jwlgat& tion of a landed proprietor as far 88 ownership of rent is
evidence of such a tenure." Bot with reference to the
:Moslem rule, 88 enunciated by the Hanifia lawyer, Shums-
ool-Aymah-ool-Sarrukhsee, first cited, Mr. Wilson says " it '
established a totally dilferent proportion. It ext.ended the
claim of the crown to the whole of the net produce ; assign-
ed to the cultivat-0r only eo much of the crop 88 would suf.
fice for one year's snbsistence of himself and his family, and
£or seed ; and reduced him to the condition of a mere la-
bourer on his own land. The whole of the profit or the
rent went to the sovereign, who thus became the universal
landlord." That no doubt practically would have been so
wherever that rule was enforced, although, theoretically, the
llahomedan law of the Hanifia School, as already mentioned,
vestro the property in the cultivator. .Mr. Wilson conti-
nues :-" The more equitable spirit and sounder judgment
of Akbar limited the demand of the sovereign to one-third
of the average produce of different sorls of land; the
amount to be paid preferably in money, but not to be
increased for a definite number of years (d). Under more
(d) Ayin .Akbui, tnnalated b7 Gladwin, Yol. L, Ch. ill., pp. 306. 314.
Sir Thomu Munro, however, in hia Report of t.he 15th August 1807 on
the Ceded Di.stride (Rev. Set, Vot I., pp. 94. 95), said: "The ueeeaneni
of Akbar ia emmated by Abul-Ful at one-third, and by other authorities
at one-fourth oUhe groea produce. But it undoubtedly wu higher thu
either of th- rates; for had it not been eo, enough would have re-
mained w the rayut, after defraying all e x ~ w render the lllDll
private property ; and 1111 this did not take place, we may be certain thai
the nominal one-fourth or one-third wu nearly one-half. Thia aeema to
have been the opinion of Auraugzib, for he directs that not more than one-
half of the crop ahall be taken from the rayut ; that where the crop Jau
mfrered injury, auch remiaion ahall be made u may leave him one-laalf
of what the crop might have been; and that where one rayut diea and
another occupies hi.a land, the rent ahoald be redu~ if more than one-
half of the produce, and nmed if leaa than a third. U ia evident, tliere-
Google
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:OOKBAY HIGH COURT REPORTS. 68
modern Governments, whether Hindu or Mahomedan, the 1875.
demand seems to have fluctuated from a third or ho.If of the VuxUNTA
• BAPU.JJ
gross produce, to the whole of the net produce, or even to 11.
have exceeded those proportions; leaving to the cultivator 0°,.~~

0
insufficient means of subsistence, and not unfreqnently com-
pelling him to aba;pdon in despair tlie cultivation of the Judgment.
lands which his forefathers had tilled, and to which his
strongest affections chained him, extortion being thus punish-
ed by dearth and depopulation'' (c).
Speaking of the extent of the interest of the Stare in the
land in his own time, Mr. Mountstuo.rt Elphinstone says : -
" The sovereign's full share is now reckoned at one-half;
and a country is reckoned moderately assessed where he
takes only one-third. This increase has been made, not so
much by openly raising the king's proportion of the crop as
by means of various taxes and cesse~. some falling directly
on the land, and others more or less circuitously affecting
the cultivator. Of the first sort are taxes on ploughs, on
cattle, and others of the same description ; of the second,
taxes on the use of music at certain ceremonies, on marriages
witb widows, &c., and new taxes on consumption. Besides
these there are arbitrary ceases of both descriptions, which
were professedly laid on for temporary purposes, but have
fore, that Aurangzib thought that one-half was in general enough for the
rayut, and that he ought in no case to have above two-thirda."
The meaning attached by Sir T. Munro to the phrase'' private property"
is stated in/ra, p. 66 et sq.
(e). In Ankola the rent was still payable in kind, though 1ubject to
commutation, fifty years before the time at which Mr. Harris wrote his
report of the 14th June 1821 (Exhibit No. 9, para. 58, Printed Bk. Vol.
III., p. 53), and when the demands of the Government were not evaded
by the fraudulent artifices which that officer describes; he shows that
these demands in many instances rose to the full amount of the gaini-
hutvali or rack rent, equal to two-thirds of the grOBB produce of the land.
This method of asse11Bment would obviously, in 1ome cases, 11wallow np all
of the rent of the land, and like tithes (see Adam Smith, Wealth of
Nations, Bk. Y., C. II.), but in a higher degree, it tended to check an ex.
temion of cultintion at increased expen.ee. It was probably only by
artificial eetimates and local adjustments that it was made compatible
with the general welfare of the agricultural class, and, when itl natural
unevennell8 was exaggerated by proportional celllles, the burden which it
imposed must in many cases have become intolerable.
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64 BOXBAY HIOH COURT REPORTS.
1875. been rendered permanent in practice. Of this kind are a

VvuuNTA cess on all occupants of land, proportioned to their previoas
B~~n payments, and a ceas on the emoluments of village and dis-
GoVD!fKBNT trict functionaries" (f).
OJ'BollBAY.
The Madras Board of Revenue, in their Report of the
Jiulgmffll. 28th January 1813 (Rev. Sel., Vol. I., p. 562), in speaking of
the sovereign's share, say:-" Now ,this rent or share is
supposed to amount generally to the value of little less than
one-half, and, in some situations, to even more than one-half
of the gross produce."
Grant Duff, in the first volume of his History of the
Mahrattas (p. 26, Bombay reprint), says :-'' By the evi-
dence of the Shastrs, one-sixth· of the crop is the lawful
share payable by the rayut or cultivator to the raja. But
this usage of remote antiquity has been long unknown in
practice ; and different rates and modes of collection have
been fixed or enacted by succeeding rulers as wisdom and
good policy suggested, or as rapacity and necessity may
have urged."
Sir George Campbell, in his Essay on the Land Tenures
of India, says :-'' It must not be supposed that the custom-
ary rent consisted of a uniform share of the produce levied
eqttally on all crops and under all circumstances. On the
con\rary, the system was to a remarkable degree adapted to
the circumstances, with much regard to principles which
we should call political economy. Not only did the share
taken vary in different parts of the country, but it also
varied in respect of different kinds of crops and different
modes of cultivation. For instance, crops raised by artificial
irrigation (not supplied from Government works) usually
rendered a. smaller proportion than those raised without
irrigation, because in the former case a larger proportion was
due to the labour and capital of the cultivator. The more
valuable products, as sugar-cane, cotton, vegetables, &c.,
paid money rates according to the measurement of the land-
the produce not being divided. The proportion of grain
crops ta.ken as rent or revenue may be said in modern times
(/) Elphinatone's Hillt., p. 70, 4th ed.
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BOKBA Y HIGH COURT RIPORTB. 65
to have varied from one-fourth to one-hnlf, one-fourth being 1875.
n. decidedly light assessment, one•half the heaviest. One- VvBAKUNTA
A.PUJI
third and two-fifths were, I should say, the most common 11.
rates. The grain only was divided, the cultivator usually 0;~~~
retaining the straw. In ordinary agricultural villages he
also had free grazing for his cattle in the village common, Judgmu,t.
but in parts of the country where a large proportion of
the land was given to grazing, a ces~ per head was levied
on the cattle."
In a minute written by Sir Thomas Munro eo recently as
in the year 1822, on a decision of the Supreme Court at
Madras, we may, without committing ourselves to an adop·
tion of all of the views there expressed, quote with a.dvan•
tage the following description of the revenue of Indian so-
vereigns:-" A small part of the public revenue arose from
customs; the rest, about nine-tenths of the whole, from the
land revenue or tax. A~l land was assessed to the public
revenue ; a part of thu land was allotted to religious and
charitable purposes and to municipal institutions, and the
public revenue of such lands was enjoyed by the incum-
bents. But the public revenue of all other land came to the
royal treasury, unless when assignments of particular vil-
lages or districts were ma.de to civil and military officers for
their personal allowances and the pay of their respective
establishments ; all which assignments, however varied,
ceased at the will of the sovereign. As there was no public
body, no class of nobles or clergy, which had any right to in-
terfere in the settlement of the land-tax ; as this power was
vested in the sovereign, n.nd as he could raise orlowC'f' the tea as
he saw proper; and as the whole produce was at his disposa.1,-
it is manifest that be could derive no advantage from, and
therefore hnve no motive for holding, as 'private possessions
of the crown,' any lands apart from the general mass of the
Sarkar or Government lands of the empire ; and it is also
obvious that whenever he granted land rent-free, he granted
the public revenue'' (g).
(9) Gleig's Life of Muuro, Vol. II., pp. 3.10, 331.
11 117-i
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J
66 BOJIBAT UIOB COURT .UPOBTB.
1875. We revert to the Minate of 1824,, as illustrating the gen-

VYA&;;;;; eral views of its writer, Sir T. Munro, in. regard to what
B~~"1 constituted " private property "-e. term much used by him
GovBoBRNJUNT in his earlier correspondence preeently to be discussed. He
06 IIB.A.Y,
·said :-'' The Hindu Governments seem to have often wished
J"'1g,Mnt. that land should be both an hereditary and saleable pro-
perty ; but they could not bring themselves to adopt the
only practicable mode of effecting it-a low assessment" ( h ).
In suggesting that otherwise the rayut·s holding W&B neither
"hereditary" nor" saleable," Sir T. Munro did not mean tha\
the heirs of a ra.yut might not, if they pleased, succeed
to his land, or that the rayut (if not, by reason of special
circumsta.nces in connexion with the law of his caste, re·
stricted from alienation) might not, without any opposition
on the pa.rt of the State, alienate the land if he pleased, bu\
that the assessment was too high a.a well to induce the heirs
to ea.re to retain it, a.a to enable the rayut or them to find a
purchaser. Munro seemed to think that generally there waa
little to choose in point of moderation in assessment be-
tween Hin do and Mahomedan princes (,j. '' We find, " he
said, " the assessment as high in the territories of Hindu
a.s of Mahomedan Chiefs. ,, And again :-" Among the
Chieftains of the Northern Circa.re, descended from the
ancient sovereigns of Orissa, and who have for ages been
in a great measure independent, as well as among
many of the Rajahs of the upper and lower Ca.ma.tic, de·
scended from the sovereigns of Vizia.na.gar (Vidyana.gar,
Bijanagar), or their deputies, and who also since the fall
of that empire have, in a great measure, been independ·
ent, we find the same rate of asseument, amounting
'U.SUally to about one-half, ond jl:uctuating, according to Ute
soil, from two-flftlLB to three-fifths of the gro,s produce with
little variatio-n, except that in some pla.ces it is'.paid in kind,
and in others in money. '' And again :-" The few imperfec\
records which have reached us of the revenues of Viziana.-
gar, the last of the great Hindu powers, do not show thai
(h) Gleig'e Life of Munro, Vol. III., p. 332.
(i) See aleo Elph. Hiat., p. 423.
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BODAY HIGH COURT RIPOB'l'S. 67
the assessment was lighter under that Government than 1875.

under its Mabomedan suocesaors. If, then, there ever did Vr;'"UNT"'
in any age prevail throughout India a moderate land-tax, ~~.rr
.its loss must be attri•buted to some other cause than that of GOVDNl'1UIT
o• Bo:o.u.
Mahomedan invasion 11 (j). He then refers to the modera-
tion in assessment and to the financial reforms of the great J ~ .
Mogul Emperor, Akbar, also recorded by .Mr. Elphinstone
(k), and. Mr. Patton (l). Both of the latter authors speak
of Akbar,s celebrated Brahman Minister, Raja Todar Mul
(m). Mr. Patton particularly notices the employment of such
e. revenue minister as a signal instance of the influence of
Hindus upon Mabomedan Governments, and of the wisdom
of the enlightened sovereign, by whom he was appointed, in
making such a selection. To some of Akbar's measures we
must presently recur. Ambar Malik, when conducting the
Government of the Niza.m Shabi dynasty at Abmadnagar,
with the liberality of spirit which influenced Akbar, is P.aid
to have introduced the Mirasi system in the Dekkan (n). It
is, however, for the reasons we have already mentioned..
probable that he was only the reviver of it. Sir Thomas
Munro's Minute of 1824 continues thus :-" There is, how-
ever, no ground, either from tradition or record, or from the
present state of the country, for believing that a moderate
land-tax was ever at any time throughout India the general
principle of its revenue system. It is much more likely that
a variety of systems have always prevailed in different pro-
vinces at the same time,-some more, some less favourable to
the people; some admitting of private landed property, some
rejecting it ; that in the same province different systems have
(i) Gleig'1 Life of Munro,.Vol. III., pp. 333, 3M.

(k) Elph. Hilt., p. 471 et «q., p. 474.
(l) Princfplea of Aaiatic Monarcbie1, p. 110 et ,eq., p. 114 et uq.
(m) Occaaionally spelled Tudor Mull and Tooril Mui, Patton l ll., Wilk.'
Myaore, p. 102, Madras reprint; Elph. Hilt., pp. 443, 474.
(n) Elpb. Hiet., pp.482, 483; Gleig'11Life of Munro, Vol. III., pp. 3.'W,
335. Rev. Sel, Vol. IV., pp. 409 tt ae,q., 418 et seq. top. 430, by Mr.
Robert.Bon ; and pp. 318, 472 et lf-q. by Mr. Chaplin commenting on Mr.
Roberllon'a remarks.
•
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68 BODAY HIGH COURT RIPORTS.
1875. predominated at different times ; and that the system of aft

VYA1r.t1KTAland being the property of the Circar (Sarkar) has sometime!
BAP"~Jl succeeded that of private landed ·property, . and sometimt>s
~~~::1' given way to it. At Vizianagar, the seat of the last grwJ
Hindu Government, and in the countries immediately aromid
Judgment. it, where, according to the theory of private landed property I
having been the ancient Hindu system until destroyed by
foreign invasion, we might naturally hope to see it in its
greatest perfection, we find no trace or record of it.a haring
ever existed. In the countries in the PeniD.811la it is mosi
pedect in Kanara, which was long, and in Malabar,which was
a:considerable, time under a Mahomedan Government. Nen
to these provinces it is most complete in Travancore, which
never was subdued by that power. In Arcot and Tanjoreit is
lees valuable than in Trava.ncore, and in Madura and Tinne·
velly still less so than in Aroot. In a narrow strip of country
along t.he eastern side of the Western Ghaute, from the
south of Mysore to Sata.ra, it is found nearly in the same state
as in the adjoining districts below the Oha.ute. With the
exception of this narrow slip, · it is unknown in Mysore, in
the Southern Mahratta Country, 'in the ceded districts, and
in the Northern Circare. It is unknown in BijapClr; it
is found further north at Sholapftr, on the same footing
as at Satara, but again disappears to the eastward on the
Nizam'e frontier. In Sate.re. the proportion of Mirasdars
to other occupants of the land is two to one ; in Poona three
to one; and in Ahmadnagar about equal. In Khandesh
there are very few Miraedare, and it is thought by the
Collector, Captain Briggs, that mirae has generally ceased
in that province since its conquest by the Mahomedans in
1306. But Mr. Chaplin thinks that there is no proof that it
existed antecedent to the Mahomedan conquest. The Mira&
system (o) was established in Ahmadnagar about the year
(o) Grant Duff, in speaking of the Dekkan, 11&ya :-" The MirMdar ia
an hereditary occupan~ whom the GoYernment eannot displace aa Jong aa
ho pays the asseesmont on hia field. With various privileges and diatinc·
tiona in his village, of miuor couac<JUCnce, the Mil'Bll<lar baa t-ho import.ant
power of scl.li.Dg or transferring hie right of occuplUlcy at ploa.su.rc. To
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BOMBAY HIGH COUKT REPORTS. 69
· 1600, by Malik Ambar, the Ma.homedan ruler of that pro• 1875.
vinco, and in some other provinces where it is found, and VvnuNu
BAPUJI
which were long under the Mahomedan dominion. It is "·
.. _:_ h th 't .
uncerlGlll . w e er 1 1s o f Hi d M ul . . . OoVJtRNHENT
n u or use maru ongin. OJ' Boxs.t.v.
It is no doubt possible that private landed property may in
somo countries have been swept away by the violence of Judgment.
M.a.homeda.n invasion, and the long continuance of oppres·
sive government ; but it is equally possible that the same
thing may have been produced long before the Ma.homed.an
conquest, by the wars arising among the Hindus themselves,
and by tlte subversion of one great Hindu empire by another;
and it is probable that enlightened princes, both Hindu and
Mahomedan, seeking tho welfare of their subjects, may
have either revived or introduced private landed property
into their dominions'' (p). He then proceeds to say that
"in most dislricts the miras is worth little, and has no
value that might not be easily given to the lands in every
province by a moderate reduction in the assessment. It
is much more imporlant to ascertain how this moderate
assessment is to be gradually introduced, and private lands
and property reared upon it, than to seek to trace the origin
and the fluctuations of miras. It is only on the Malaba1'
Coast that the miras yields such a landlord's rent as to
make it saleable. In Arcot it yields little landlord's rent,
and though nominally saleable can seldom be sold. In the
southern provinces it gives hardly any landlord's rent, and
render this right saleable, of cour11e infers a low rate of aueasment ; and
much diecusaion a11 to his being the proprietor of the soil, has in conse-
quence arisen in different parts of British India. It is a current opinion
in the Mahratta Country that all of the lands were originally of this de-
a~ription."-Gnmt Duff's Hist., Vel. I., p. 22. As to Miras iq Southern India.
eee Rev. Sel., Vol. L, 811 a aeq. and pp. 900, 906; Rev. Sel., Vol IV.,
p. 474, para. 114.
(p) Gloig'e Life of Munro, Vol. III., pp. 335, 336. Mr. {afterwards Sir
Henry) Pottinger writing, a11 Collector of Ahmednagar, in 1822, said :-
" The Miraai tenure has existed in this part of India {in common, I believe,
with all others) from timo iinmomorfal, and when I have inquired about
the period of its oetablishment, I have been tolcl I might all well in11uiro
where tho soil wae maclo. ·• ltev. Sol, Vol. IV., p. 736 .
•
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70 BOKBAY HIGH COURT UPORTB.
1875. in the Dekkan the assessment is uawilly so high as to leave

VuxuNT.&. little or none, and the land when thrown up by the Mirasdar
BAPUJI
"· can seldom pay the old rent, because the uncertain tenure
ol' Boia.u. of the culti'vator (oopan') prevents his b estowmg
GOVBRNIIBNT ' the same
labour upon it. It may, therefore, be assumed that, exoept
J ~ . in a few districts, miras land yields no landlord's rent. But
thi.a does not hi'YUUr it from 'being a duirahk propmy ; for aa
a man cannot always find employment for his labour and
stock, it is of great importance to possess land by which
this employment may be secured. In Oirkar (SarkM)
'land, as well aa miraa, rayuta som,time, have a landlof'tl'•
9'ent ; for it is evident that whenever they so far improve
their land a.s to derive from it more than the ordinary pro-
fit of stock, the excess is le.ndlord's rent; but they are
never sure of long enjoying this advantage, as they are con-
stantly liable to be deprived of it by injudicious over-assess-
ment. While this state of insecurity exists, no body of
substantial le.nd.holders can ever arise ; nor can the country
improve, or the revenue rest on a solid foundation. In order
to make the land generally saleable, to encourage the rayuta
to improve it, and to regard it as a permanen\ hereditary
property, the &BSeesment must be fixed, and more moderate
in general than it now is; and, above all, so clearly defined
as not to be liable to inorease from ignorance or caprice.''
This is a. long quotation, but we have thought it better to
allow Sir Thoma.a Munro to'.speak for himself as to hie meaning
of private landed property than to abridge his remarks. Ho
evidently regards the miras of the Dekkan as private landed
property, although he believed that, in many districts, it
yielded but little, if any, landlord's rent, and although the
a.sseeem..ent was not permanently fixed. Taken 88 a whole,
his remarks amount to this-tba.t miras, even withoat a. per-
manently fixed a.ssessment~ is the private le.nded property
of the mirasdar, but not so valua.ble 88 when the asaessment
is permanently fixed. Further, it is evident that he regarded
the landed property belonging to the rayuts in Kanara,
Soonda, and Ankola as a species of mire.a. He said that on
the Malabar Coast only did miras yield such a landlord's l'ent
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BOK.BAY moB COURT Bm'OBTS. 71
as to make it sa.leable. In the Malabar Coast are included 1875.

Kanara, Soonda, and consequently Ankola (as being part of Vv.uc~
Soonda) and other provinces. With all due respect for B"!_uJI
bis opinion, that on the Malabar Coast only waa the miras ~~v&=:.:;.T
marketable, we must observe that any one familiar with this
Presidency, or who has sat in its Sadr Adalut or High Judgment,
Court, must be aware that not only miras lands, but lands
held on inferior t.enure, have been the subject of alienation
and charge in the provinces of this Presidency, and that
such sales and incumbrances have been recognised by those
courts. Miras lands have been and are so aold and incum-
bered and treated as privat.e property, albeit that the claim
to fixity of assessment has been long since extinguished by
the Mahratta Government (q).
Sir T. Munro, as we have seen, admits, in his Minute of
1824, that even the common Sarkari t.enant may have a pro-
perty in the soil. It seems also to be nearly certain that,
in advocating, as above, a fixed rent, he did not mean a rent
fixed for ever. In a subsequent part of that Minute (r) he
speaks of the introduction of a fixed assessment into Bara-
m:i.hl, Coimbatore and the Ceded Districts, in all of which
he says the survey assessment has, besides giving a begin-
ning to private landed property, simplified and facilitated
the collection of the revenue.'' He, however, adds:-
" No survey assessment of a great province can ever be
made so correct as not to require future alteration ; when,
therefore, it has been completed with as much care as
possible, a trial should always be made of it for six or
seven years. This period will be sufficient to discover all
defects in the assessment. A general revision of it should
then be made, and wherever it might be found too
high, it should be lowered, and it may then with safety
be made permanent. None of the districts, however, in
which the survey assessment had been introduced had
(q) Rev. Sel., Vol. IV., pp. 474, 475, 479, 541, 649; Mr. Chaplin'& Beporl
of 20th August 1822, paragraphs 114, 122, 130, 143; Capt. Robertson's Re-
port, 10th Oct.ober 1821, para. 51 ; and Capt. Grant's Replies, 17th June 1822.
(r) Gleig'e Life of Munro, Vol. III., pp. 349, 350.
-~
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72 BOKBAY HIGH COURT RSPOBT8.
1875. the bonefit of such a trial, ns in all of them a permanent

VvAKUNT.t. settlement, or lease, was introduced very soon after the
B.t.!~.11 completion of the survey. Coimbatore was more fortun.atA,
GoVERNHDT than the rest; it escaped the decennial lease, and is now
o•BollJIAY,
the best ordered, the most easily managed, and the mosi
JudgmtRt. thriving district under the Madras Government. A sur·
vey assessment, besides its other advantages, preventa
thousands of disputes and litigations about rent and boun,
daries:, and itfurnisht11 a standard by which the revenue of
tlus country can at any time be raised or lowered acc()rdmg tu
tl,,e state of affairs may require an increase of the burdefla of
the peoplt1 or may admit of their diminution. I trust that we
shall never have occasion t,o go beyond the original 888e811·
ment, and that we shall in time be able to make considerable
reductions in it. The fixed assessment will not for some
years have the same effect in encouraging improvements as
it had before the introduction of the leases and permanent
settlements; because these measures have shaken the con·
fidence of the ra.yuts in the continuance of the present sys-
tem, and will render them cautious in undertaking improve-
ments, lest they should be prevented from enjoying the full
benefit of them by being placed under a renter or a zemin·
dar. Some years, therefore, must yet elapse before this appre·
hension can subside, and the survey assessment have its
full effect in encouraging 'improvement and promoting the
growth of landed property. " In the conclusion of the
same minute he says :-" I have, in the course of this
minute, urged again and again the expediency of lowering
our land revenue, and of establishing a moderate and fiutl
assessment, because I am satisfied that this measure a.lone
would be much more effectual, than all other measures com-
bined, in promoting the improvement both of the country
and of the people. But before w~ can lower the land reve-
nue to the best advantage, we ought to know clearly what
it is we are giving up. .As the information requisite for
this purpose can only be obtained from an accurate survey
of each province, these surveys, where still wanting, should
be undertaken wherever the Collectors are competent to the
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80llll.lY llIGH COURT RJilPOR'l'S. 73
task. When completed, they will furnish a. groundwork on 1875.
'Which the land revenue of the country ma.y with safety Vux.1.''IIU
BAPU.JI
hereafter be lowered or raised, according to circumstances. "·
We should look forward to a time when it may be lowered. GonBoaNiu:NT
or MBAY,
India. should, like England, be reliev-ed from a part of her
burdens whenever the state of affairs ma.y permit such & Judg,,w,l.
change. Whatever surplus might remain after the payment
of a.11 civil and military charges, a.nd of all charges connected
with the improvement or protection of tM country, should
be remitted. The remission granted in peace might be
again imposed in war, a'ltd enen. sometlting additional, This
would probably obviate, in a great measure, t.he necessity of
raising money by loans on the recurrence of war. The
people would bear the addition willingly, when they knew
that it was for a tempora.ry object; and the remission, which
had been previously granted, would dispose them the more
readily to place confidence in the assurance of Government,
that the increase was not intended to be pern;ianent '' (s).
By a. fixed assessment he distinctly appears to have meant
fixed sui modo, not inalterably fixed. He intended that the
right to raise the land revenue, if necessary, should be
reserved, but that the resort to such a. measure should be
rare, and that the Government should decide whether or not
the occasion ha.d arrived for a.n exercise of the power of
enhancement. This minute of 1824 is a. statement of the
general policy of Sir Thomas Munro. The passages, which
we have quoted, should be kept_in mind, when we come to
his letters written in 1800, with regard to Kanan, e.s to some
extent furnishing a key to the sense in which he used the
terms" private property'' and" fixed assessment."
In advocating his favourite ra.yutwa.ri system in the ea.me
Minute (t), and with it the gradual introduction of a fixed
and moderate money assessment, he is careful to impress on
his ~aders that " before we endeavour to make such a change
in a.ny district, it is absolutely necessary that we should s~ey
its lands, and ascertain as nearly e.s possible its average
(•) Gleig'a Life of Munro;Vol. III., pp. 389, 390.
(t) lb.tl. pp. 353, 354..
D 117-j
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1875. revenue for a long series of years. If we attempt, without

VvAKUNTA this previous knowledge, to convert a fluctuating into a
BAPUJI
"· fixed rent, we shall certainly fail, even if our knowledge
GovERNMENT should be so complete as to enable us to distribute fairly
OF BoMBAY.
upon the land a. fair assessment exactly equal to its former
.!1tdgnlfflt. average revenue." And here may be appropriately quoted
one of his ap~orisms (u) :-" There is nothing we ought to
avoid so cautiously as precipitancy in committing the faith
of Government in permanent measures of which we cannot
possibly foresee the consequences, and which may often be
quite contrary to our expectations. We ought always to ·
keep open the, road for correcting ocr mistakes, and never
to bind ourselves in such a way, by ha.sty regulations, a.s to
render our injustice, once committed, permanent.'' We are
inclined to infer from this, and the preceding quotations,
that Sir Thomas Munro would have d~emed the imposition
of an inalterable assessment so light in its pressure upon one
province or one individual as to render it necessary for Gov•
ernment to lay a proportionately heavier tax upon other
provinces or other individuals, in order to bring the revenue
up to the level of the exigencies of the State, as precipitate
and unjust.
There has not been any more able or more zealous up-
holder of the hereditary and indefeasible right of the rayut
in India to property in the land and stronger opponent of
the zemindari permanent settlement system than Colonel
Wilks, who has devoted the 5th ChaptP.r of his History of
l\fysore to those subjects; but he, while objecting to frequent
fluctuation in Government assessment, maintained that an
inalternbly fixed rate of assessment was not a necessary
element in tho constitution of such property Wlct was objt'c-
tionable (mi).
In a despatch of the Government of Madras, of the 24-tlt
October 1808, to the Court of Directors (Rev. Sel., Vol. I.,
p. 481, para. 62), the former speaks of private property m
(11) G!eig'e Life of Munro, Vol. II., p. 263.
(1111) History of Mysore, Yo!, I., p. 12'2. Madra!> rei,riut.
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BOKDAY HIGH COURT REPORTS. 75
Ka.nara in the same sense, thus :-" With the exception of ~ -
the provinces of Maia.bar and Ka.nara, and other districts in VvaKUNTA
which the traces of private property e:itisted when they be- Ba~~n
oame subie<?t
J
to the British Government' or1 perhaps ' 'more Oov&RNMENT
OF BoMBA.Y,
rorrectly spea,king, where the assessment on the land is com-
paratively light, the provinces subject to the Presidency of Ju.dgment.
Fort St. George are described as exhibiting nearly the same
system of landed property and revenue policy. The interest
in tho soil was divided between the Sarkar and the rayuts,
and the share of Government constituted so large a. portion
of the produce as to leave little more to the ra.yut than the
interest of an hereditary tenant.''
The term " proprietor of l?,nd ", as used in the Regula.
tions of the . Madras Government, had a technical statutory
signification conferred upon it by Madras Reg. XXVII. of
1802, Sec. 2, which enacted that the" designation of proprie-
tor of land,'' " whenever it occurs in any Regulation, shall
describe zemindars, independent talukdars, and all actual
proprietol'S of land who pay the revenue assessed upon their
estates immeruately to Government." A portion, however,
of the preamble to Madras Reg. XXV. of 1802, (which was
passed with " view to the establishment in the Presidency
of Madras of a. perma.nent settlement on the Cornwallis
principle) a.fter stating that it had been customary to regu-
late the augmentation of the assessment of land revenue by
the inquiries a.nd opinions of the local officers a.ppointed by
the ruling power for the time being, recited " that, in the
attainment of a.n increased revenue on such foundations, it
bas. been usual for the Government to deprive the zemindars,
and to a.ppoint persons on its own behalf to the ma.nagement
of the zemindaries, thereby 'reserving to the ruling power
the implied right, and the actual exercise of the proprietary
possession of all lands whatever," but admitted that such a
mode of administration wa.s injurious to (inter ali<i) the
security of "private property" ; a.nd Sec. 2 provided that,
upon the fixing of an assessment under that Act, " the pro-
prietary right of the soil shall become vested in the zemin-
~ or other propriotors of laud, and in their heirs and law-
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'16 BOKBAY HIGH COURT R'EPOBT8,
1875. ful successors for ever." Madras Reg. XXXI. of 1802.,

VYAxuNTA (passed for trying the validity of the titles of persons hold.
BAPUJl
11• ing, or claiming to hold, lands e~empted from the payment
GovBRN1uorr of revenue &c.} in its preamble recited that "the ruling
OJ' Boi,uu,Y. 1 ' ,
power of the provinces, now subject to the Government of
Judgfnmt, Fort St. George, has, in conformity to the ancient usages of
the country, reserved to itself, and ha.s e:r.erciaed the actual
proprietary right of lands of every desoription/' and that
'' consistently with that principle all alienations of land.,
e:x;:cept by the consent and oqthority of the mling power.,
are violations of that right; but'' that " considere.ble por..
tions of land have been alienated by the unautborw,d en. _
oroaohments of the present posaessors, by the clandestine
collusion of looal oftioers., and by other fraudulent means.~
Doubts having arisen as to the oonstrnction -of Reg. XXV.
of 1802, and of Regulations XXviII. and XXX. of 1802
(which two latter enactments professed to regulate to ~
certain e:x;:tent the relations of landlord and tenant), the
Madras Legislature., by Reg. IV. of 1822, "declared that the
provisions of Regulations XXV ., XXVIII. and XXX. of
1802 were not meant to define., limit, infringe OJI destroy, the
actual rights of any description of landboldera or tenanta 1
but merely to point out in what manner t,enanta might be
proceeded against, in the event of their not payiug the rents
jqstly due from them, leaving them to recover their rights,
if infringed, with full costs and damages, in the established
courts of justice." This Regulation did not touch Reg.
XXXI. of 1802, but, in the reoent case of tlu, Collector of
7,lrichinopoly v, I.,akkamani (v), it has been decided by H . M.,
Privy Council that the object of that Regulation was only
the protection of the revenue from invalid 1,akhiraj grants.,
11,nd to pt'Ovide for the mode of trying the validity of the
titles of persons claiming to hold their lands ~empt fro~
the payment of revenue, and that it was llOt intended to
confer upon GovernmeQt any title which did not then exist.
The words '( alienations of land,,. were held to refer not to
lllere transfers from one proprietor to another, but to grants
(v) l,aw Rep., 1 Iodi•!.I A pp~alll, ~32, 304, 808,
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BOKBAY RIOH COURT REPORTS. 77
for holding lands exempt from the payment of revenue. It 1875.
was in the same case ruled that the preamble of Reg. XXV. VTAX111'T4
of 1802 must be regarded as recognizing the rigat of private B~.un
property, and not a.s a.sserting a right on the part or Govern- G o ~
ment to deprive or dispossess zemindars in their lifetime, o• HBAY,
or, after their deaths, their heirs, for the purpose of trans- Judpt,t,,I.
ferring their rights to Government, or to new holders at the
will of Government, independent of any considerations con-
nected with the realimtion of the revenue, and that the
affirmative words in the 2nd section of that Regnla.tion
neither ga.ve new rights to the owners of la.nds not perma-
nently a.ssessed, nor took awa.y from them any rights which
they then had, but merely vested iI). all zeminda.rs, &c, an
hereditary right at a fixed revenue upon the conclusion of
the permanent a.ssessment with them. That decision finally
dispoees of any inferences hostile to the right of private
property in the soil which ha.d previously been drawn from
the inartistically penned prea.mbles of Regs. XXV. and
XXXI. of 1802. To the preamble of Reg. XXV. of 1802,
to fa.r aa it relates to the right of Government to enhance
the a.ssessment of la.nd revenue, we shall presently again
advert. That regulation, in introducing the Cornwallis per-
manent settlement in the territories of Madras, has never
bee:q. a.cted 111>911 in the province of Kanara.
Having given a general view of the Hindu and Ma.homeda.n

law a.s to the proprietorship of la.nd in India, and as to the
revenue payable in respect of it to the State, and the opinions
of Mountstuart Elphinstone, Sir Thomas Munro, Professor
Wilson, Colonel Wilks and other writers on those questions as
they stood at the commencement of the British Rule, we, with
a vivid sense of the wisdom of the rema.rk of Mr. Elphinstone,
•
(fortified as it was by a similar expression of opinion by Sir
ThoD188 Mamo already quoted) that "many of the disputes
about the property in the soil have been occasioned by apply-
ing, to all parts of the country, facts which are only true of
particular tracts, and by including, in oonclnsiona drawn
from one sort of tenure, other tenures totally diuirniJar in
A"
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78 BOK.BAY UIOH COURT REPORTS,
1875. their nature" (w), now proceed to consider the history of the
· vva=• district in which the plaintiff's lands a.re situated, and
B~uJI whether, in opposition to what would seem to have been the
GonRJOBNT general rule, that history reveals any special and permanen~
o•· BollQIAY. }" • •
umtation of t he sovereign
• 1s share of t he produ~ ensting
• • m .
{,ulgme'lll. practice before the acquisition of the provinces of Soonda
a.nd Kanara. in 1799 by the East India Company, or made
by any duly constituted authority since that event. Such
we deem to be practically the question to be d.aterlllinecl.
The history of the Land Revenue of Kanara. is to be found
chiefly in Munro's Report of the 31st May 1800 addressed to
the Madras Board of Revenue (:i:), Colonel Wilks' History
of Mysore (y), and a Minute of the ¥a.dra.s Board of Revenne
of the 5th January 1818 (z),
The Nairs (Nayrs) seem to have been the fil'St ra.yut land.
lords or mula-va1·gda1·s of whom there is any record. Un-
der them were, as tenants, two classes, the tnul-gainir
(permanent tenants) and. chali-gainis (tempo.ra.ry tenants)
already mentioned. Land originally waste or which had
devolved upon the State by esoheat or abandonment, when
let to a tenant by the State, was called a gaini-varg. A
'Yltuli-var-1 was both hereditary and alienable, a.nd so long
as the mula-vargdar paid the Government le.nd,revenue he
could not be disturbed.
From time immemorial until the conquest of Kanara
(circa 1252 of the Christian era) by the Pandia.n princes of
Madura, one-sixth of the produce (in rough grain), accord-
ing to Hindu Law, is stated to have been paid by the land-
lord for the support of the State (a). The conquerors al-
• tered the mode of payment to a delivery of the sixth divested
(tD) Elph. Hist., 4th ed., p. 73. (a:) Exliibit A, pp. 6, 9, et. ,eq,
(y) P. 95 tt aeq. Madrai reprint.
(z) Exhibit U, Printed Boob, Vol. IL, p. 28; and Rev. Sel., Vol. L,
pp, 885, 894.
(a) Munro, Esh. A., p, 9, 'para. 6; Col Wilb' Jd110re, Vol. I., p•. 94;
BeY. 8fsi. VoL L, p. 896~ para. 48,
..
-
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flOMBAY HIGH COURT REl'OR'fS. 79
of the husk, which change had the effect of increasing the 1875.
assessment to the extent of a.bout 10 per cent. VvAKUNTA
BA:P'ITJl
On the Pandia.n conquest inost of the Nair landlords are 11.
sa1·d to have been expo11ed, and the1r· pnyi· ·1eges appear to GovoNM.11:N'l
o, Boiuu.v.
have been conferred on the ancestors of the present Hullers
and various other castes now in possession of the muli-vargs. Jvdgmem.
The descendants of the Mulgainidars who held under the
Nair landlords are ea.Bed Nair-Mulgainul.a1·s to distinguish
them from the Sh1ul-Mulgainular11, who subsequently ac-
quired mulgaini holdings under the new landlords. We,
however, must limit our remarks to the rights of the Mula-
tJa1·9dar11 and the Gaini-vargda1·s, inasmuch as the plaintiff
in the present case occupies these positions only (b).
The assessment of one-sixth of the produce in grain
divested of the busk continued until A.D. 1336 (c), when the
(b) Rev. Sel., Vol I, p. 895. In the Fil\h Parliameot&J7 Re!port of 1812.
p. 77. of ihe Madras reprint, th~ . .commit~ have confounded the Nair•
Mulgainid<tr.11 (or, as they have styled them, the Nair Mul·gumiu), with the
Mulavargdar11 (or M11lgar11), who are the landlords, the Nair·Mulflainidar,
being, as above described, only a claas 0£ tenants of high degree. The error
. aeems t.o have ~ n from a misapprehension by the Committee of the
remarks made by Munro, after he had left Kariara, on Mr. Ravenabaw'a
survey of Barcoor, on the 1st July 1801, printed in the Appendix to the fifth
Report at p. 467 of the Madras reprint, under the incorrect title of extracts
of Report from Principal (it ought to have been Ex-Priocipai) Collector of
Kanara. The passage in Munro;s remarks· is as follows :-" Besides the
Mu.lgaini, or tenant by purchase, there ia in aolne parts of Kanara, and
probably in Barooor, another species of tenants for ever, called the Nair-
gaini. The origin of this tenure is, by some, derived from the t.enauta
having held of the Nairs, who were in ancient times masters of the ooun-
try : but the more C-Ommon opinion derives it from agricultural services,
which gav~ the ri~ht of ploughing ; the word Nair signifying a plough ; and
in this way it. oorreepoode in some degree to the description, which has·
sometimes been given of the socage t.enure. The Nair Mulgaini, aa it ia
usnally called, is both a more ancient and more secure tenure than the
other, properly deuominated Shud .Vu.i,.gaini, or tenure by simple purchase.
In this last case, when the descent to heirs is not particularly specified,
there are instances of the landlords resuming the farm on the death of the
tenant ; but he is never allowed to retain it, unless where he is 1upported
by the revenue servants." See also Exhibit A., pp. 85 1 86, containing only
a portion of Munro's remarks on Mr. Ravenshaw's survey of Barcoor.
(r,) Wilks' Hilt. of My,ore, p. 94.
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J
80 BOIIBAY HIGH COURT REPORTS,
1875. Pandian dynasty yielded to the new Government established

Vvaun.t. at Viziana.ga.r (Vijeya.nuggur or Bijeyanuggur), founded by
B"-1:,~n fugitives from the subverted Government of Varangul.
GoV.IBKIOlllT
o•Bollll.t.Y,Hurryhnr Roy (d) (whose minister was the author Vidya.-
Judgmenl. ra.nya.),. subsequently to his acquisition of Kane.re. and before
the year A,D, 1347, ma.de a new assessment of that province
purporting to be in accordance with the principles laid down
in the Shastre, which (ea.ye Sir Thomae Munro) "suppoae
the produce to be to the seed as twelve to one, and which
prescribe the proportions into which it is to be divided be-
tween the Sarkar, the landlord and the cultivator. Agreeably
to the Shastrs, therefore, he (Hurryhur Roy) reckoned that
21 katis of seed yielded SO k'tis of paddy (rice in husk),
which he divided as follows : -
To the landlord 7i
To the cultivator or labourer 15
To the Sark&r 7l
80
and still following the Sbastre he divided the Sarkar's share
as follows : -
For the Sarkar one-sixth of the gross
produce 5
Dewastha.n ... 1
Brahmans, one-twentieth Ii
71
He reckoned the 7l katis of paddy equal to half or 3f
k'tis of rice, from which he deducted 4 hanis or one-tenth
for beating it from the paddy. The balance, 3 k'tis and
15 hanie, he supposed to be the fund from which the
Sarkar rent of one Ghetti Pagoda to 2i k!tie of land was to
be paid. Though it is said that, in the 71 parts of the gross
produce ta.ken a.s the Sarkar's share, 21 are for Pagodas
(Dewasthan) and Bra.hmane, it appears from a. statement of
(cl) lwihar Bai.
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JIOJO.lT HIGH COURT RIPORTS. 81
Ina.ms that the share actually allowed them was little more 1875.
thl\n one. This curtailment wa.s made on the idea of their VnKu11T.1.
B.&.PUJI
possessing lands to a large amount not included in the Jama v.
(e) (revenue), and it appears from investigations made in°;~~~
subsequent periods that these Ina.ms, added to what they
held, openly exceeded the 21 parts which ought to have Jud.gmmt.
been allotted to them. Besides Ina.ms to Brahmans and
Pagoda.s, there were many loams to Polygars and Patels,
not entered in the Jama, which were brought forward and
added to it in succeeding reigns."
"This settlement of Hurryhur Roy, which is referred to
in all after a.ssessments, and is the foundation of the present
land rent of Kana.re., is not supposed to have been ma.de
from any actual measurement, but merely from the rough
estimate of the quantity of seed reported to have been usual-
ly sown in each field." This is what is called the Bijavari
(corruptly Beejwarry) mode of computation (!). In continu-
ation Sir Thomas Munro said :-" The distance of Kan&.ra
from the seat of Government might have been the reason
why it ( the assessment) wa.s conducted either very careless-
ly or with great indulgence to the inhabitants, for, between
the years 1348 and 1366, additions were made to the Ja.ma
of above 20 per cent., a.rising solely from lands not entered
in the original settlement. From this time down to the
year 1587, when Sada.siv Roy made over Kana.re. on certain
conditions to Chnnna.pa Gour of Keldi, the founder of the
Bednore Government, the Sarkar rental continued unaltered.
It was so light that the inhabitants could have no pretence
for demanding a. reduction of it."
Subsequently Sir T. Munro observes :-" The Bednore
family ma.do no additions till 1618, when they imposed an
additional a&888ment of 50 per cent. on the wltollJ of the Jama,,
_(e) Corruptly Jumma.
.(/) So called from Bij, which signifies seed. Printed Books, Vol. III.,
p. 232. Plaintiff's Exh. II., para 42. The demerits of the Bijavari prinriple
of aaeeannent are tally exposed by Mr. Rlane in paragraphs GO and 61 of hie
Report of Sept.. 20, 1848, Exh, A., pp. 184, 208, 209, 231.
B 117-k
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82 :BOXBAY mmr COURT R:l:POR'l'S.
1875. except in 1that is called the Hooblee of Mangalore (g), which

VvAKUNTA comprises about one•third of Kanars., and which, being at
BAPU.JI
"· the time held by a number of tributary Polygars, was only
OonBoRNMKNT partially subject.ed to this assessment. Between this period
o• llBAY,
and 1660 the only considerable addition they made to it
J~nt. was by an assessment of cocoanut a.nd other fruit trees,
,vbich, under the Vizianagar Government, do not seem ever
to have paid any rent exclusive of the land rent. The
Vizianagar assessment, with all additions down to this era
incorporated with it, has been more than a century consi-
dered as the Rekah or standard rent, of all the lands in
the country, cultivated and waste." From it was deducted
all kulnasht (corruptly koolnUBht or coolnUBht (h)) land, an-
cient waste, and such as was found too highly assessed or
unfit for cultivation. The remainder was the shist or actual ·
demand (i). All subsequent additions to the assessment of
land in Kanara are called shamil. The shist and sltamil
(g) In South Kanara.
(h) Soe Revenue Doard'e minute of 16th November 1848, Exhibit LI.,
Printed Books, Vol. III., p. 232, para. 42. The word • sbist' literally
signifies a line, and its derivative senees are easily referred to this primitive
meaning. Thus it is sometimes used for tho border lino of a field between
two boundary marks, and even for the aim or direction of a gun. In the
aoconnt of a raynt the standard or rekah demand being placed opposite to
his name was followed in the same lino by a serics of deductions on acoonnt
of waste and over-lllllleBlled lands, and lands unfit for cultivation where these
were included in his varg or estate. At the end of the line the remainder,
after the snm of these several deductions had been subtracted from the
rtkah or 11tandard aaseB1ment or the Vizianagar Government, was caet out
and conatitnted the actnal demand subject to casnal temporary remiBBions
dependent on the circumstances of the particular year which were anowed
in settling thejamabandi, viz.: the revenue demand to be actually paid in
that year. The aggregate of the several shists of the rayuts was the shiat
of tho-village, and this was obviously arrived at by placing the rayuts'
names, the euma dne from them according t.o the rekab, and the reoogniecd
ordinary deductions, in columns properly headed on a tabular atatoment.
Thus as the individual rayut'e ,hist came to mean the eum claimable from
him, so tho aggregate ~f such shista became the shist or the village and of
the magani.
(1) Kulmuht is composed of two worde; kul, a cultivator or rayut, and
na&l,t, lou. The compound kulnaJ11il usually means a ttarg or laud aban•
doned or deserted hy the proprit>tary cultivator, Rel:al, 1Ulfl&t usually means·
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BOIIBAY HIGH COURT REPORTS. 83
conjointly a.re known as tho beriz, and are sometimes de-
scribed o.s the kadim beriz, i.e., old assessment. -1875.
--
VvAKUNTA
BAl'UJI
The remarks of Colonel Wilks upon these stages of the v.
h . t f K
revenue 1s ory o anara, w c hi h diff l' h 1 fr th Gov1tRNMBX'I
er s 1g t y om ose eF BollBAY.
of Munro, to whose reports he had access, deserve quotation.
After referring to the work of Vidyaranya, Minister of J,"1!]111tfft.
Hurryhur Roy, which was intended as a manna.~ for the
officers of State, Colonel Wilks says '' it is founded on the
text of Parasara., with a copious comm~nta.ry by Vidyaranya,
assigning as usual to the king one-sixth as the ·roy~l share
of the crop, and very rudely pronouncing the king who takes
more to be infamous in this world, and consigned to
(Na.reka) the infernal regions in the next. This share ho
was desirous of converting from. a grain to a m_oney pay-
ment, and established fixed rules for th.e conversion,. found.-
ed on the quantity of land, the requisite seed, th.e average
.increase, and the value of g_rain. The result litcl'.11,lly con-
forms to the law of the Digest, viz,~ one.-sixt.h to the kins.•
one-thirtieth to the Brahma.us, one-twentieth to the gods,
the rest to the proprietor. It is unnecessary to enter
further into this detail, than to state that thirty is the whole
number on which the distribution is lll!Mle; of which it is
calculated that fifteen, or one-half, is consum_ed in the ex-
pcmses of agriculture, and the mail).tenance of the farmer's
family. The distribution o~ the ro~inins. fifteen stands
thus:-
land fit for oaltivatlon but.prillll)vall7 or immemorially waste, and in 1'811pect
of which, as wut.e, a remission waa made by the Visianagar Government
from the rdah iu ascertaining the ,AW. The term ,UJBhl eeema to bayo
been appllod to land periodically overflowed by the sea in creeks, &o. ; land
torn up and rendered uncultivable br the actjon.of riYO?l or null.aha (wator-
ooul'9e8), land never cultivated· 11ince tho time of the Vizianagar Government,
and which, from its situation Qlllongst bills Mid jungles, being deemed
unlikely to be ever again oultivatcd, w,a wit.hdrawn.froin the sum of tho
general as8088mcnt of the oonntry. See, as.to auch. lands, Exhibit A., pp.
67, 119, 128, 129, 178, 186, 187, 188 et «q., to 198, 200, 201 to 204, 206,
207; Exh. X, Printed Bks., V.ol, n.,. p. 48,_para. 3; Exh. No. 29, pa111, 18;
Exb. No. 30, para. 30; Ex,h. G.G., 11th January 1836, para. HI; Exh. A. K.
1806, 1807; Exh. I.I. (10th November 18(3), p11ras. 16, 17, 18, 29. l'ril!Jcl,l
Bks., Vol lll., pp. 108, 109, 185, 201, 22.J, '1:J:i, :M:l..
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84, BOKBAY HIGH COURT REPORTS.
1875. To the sovereign one-sixth of the crop produce. 5

VYAKUNTA. To the Brahmans one-twentieth 1i
BAPUJI
To the gods one-thirtieth l
"·
GOVERNMDT Remains proprietor's share, which is exactly
Oi' BoMBAY,
one.fourth I • t •
Judgment.
15
The share payable to the Brahma.ns and the gods was
received by the sovereign and by him distributed; so that
the sum actually received by the sovereign and by the
proprietor were equal Instead of satisfying himself with
leaving things as they were, and taking from this province
a smaller revenue on account of its remote situation, as sug-
gested in the report" (of Munro) [" it is in fact not remot.e
compared with many other pal'ts of the dominion,] it is evi-
dent that Hurryhur Roy called in the aid of Shastrs for the
purpose of raising the revenue ; and did actually raise it
exactly 20 per cent. by his skill in applying that aut,hor-
ity to his calculations ; the result of the whole detail being
that he received one Ghetti Pagoda fol' two k6.tis and a
half of land, the same sum only having been formerly paid
for three k:itis. From 1336 until 1618, when the hereditary
Governors of the province begsn to aim at independence,
this rate continued unaltered; but soon after this latter
period an additional assessment of 50 per cent. was levied
on the whole revenue, with some exceptions, in which the
usurper was opposed by minor usurpations ; but even at
this period lands were saleable at ten years' purchase,·and, in
some instances, so high as tw-enty~four and thirty .n
The astute application of the Hindu Law by Hurryhur
Roy was" in raising the land revenu,e 20 per cent., a thinly
veiled violation of that law. In further augmenting that
revenue 50 per cent., the Bednore Government did not even
affect to take the Hindu La.w for their guide.
Munro, in his same report of the 31st May 1800, enu-
merates the subsequent additions to. the land revenue of
Kanara. These were : -
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BO)(BAY HIGH COURT REPORTS . 85
"The PagcJi or extra assessment of 1711, imposed by the 1875.

wife of the Raja., who wa.e regent during the madness of her fuK~
husband, on the occasion of the marriage of her son Buswa.pa BA!~JI
Naique; it was at the rate of one-sixteenth of the shist or GovnBoNKD"l'
OJ' MBA.Y.
standard rent, and wa.e for a few yeal'B levied as a N uzza.,
bat soon came to be considered a.ea part of the Ja.ma. JtMlg,nffll.
"The Putti or extra. assessment of 1718, imposed by the

Rajah of Soonda for the purpose of discharging the- Mogul
Peshk~h (tribute) at the rate of 30 per cent. upon all
gardens, o.nd from 2i to 12! upon all fields of rice. The
addition under this head in Buntwal (.7) was made by the
Adju Polygar who then rented part of that district.
" The Chucker or extra. assessment of 1720 wa.e imposed
in lieu of interest pa.id to the sa.vka.rs who advanced the
early kists (instalments of revenue) for the rayuts. In
Bednore always 50 per cent. had been pa.id by the middle
of October, but only 12! per oent. in Ke.ne.ra.. The Rajah
wished to regulate the kists of Ka.nara in the ea.me manner ;
but the inhabitants, from the lateness of their crops, being
unable to comply, it was agreed that he should borrow the
money, and that they should pay him as interest half an
anne., or one-thirty.second part additional on the shist of
standard rent,
" The assessment of Buswa.pa Naique was made in 1728
at the rate of one.tenth of an anna, or one hundred and
sixtieth pe.rt of the standard rent in order to erect chuttera
(k) and feed pilgrims on account of the mmder of hi11
father."
The next in order mentioned by Munro a.re extra assess..
ments by petty Polygars in Manga.lore Hooblee, and" Nuz.
zurs formerly made to the Rajahs of betel-nut and popper
converted into money and a variety of other trifling ar.
ticles."
(j) In South Kanan..
(k) l)lwtDaa,las, flace& of alielter for pilgrims And tr•vollen.
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86 BOKBAY HIGH COUBT REPORTS,
1875, "The addition of 1758 was made by the .Rani to discharge

VYAKUNTA the arrears of the Mahratta Chant."
BAPU.JI
"· They had accumulated to so great a sum that she pre-
Gov&RNMJ:NT ,
op BollBAY. tended she could not pay them off without a Nuzzerana
from the inhabitants equal to one year's rent. To this de-
Ju.dgmenl. mand they utterly refused to submit, and when she at-
tempted to force compliance, they rose in a body upon the
Amilda.rs. The matter was at last accommroated by their
consenting to pay 50 per cent. in four years e.t the rate of 121
per cent. each year, but on the 5th year when it was to have
been remitted, Hyder ordered it to be made permanent.
" Extra. assessments me.de by petty Polyga.rs in the dis-
tricts which they rented, to supply deficiencies from increase
of waste lands.
" ~n increase of 21 per c-ent. in Soonda, which wa.s_ the
advantage gained by substituting the Sava.noor for the
Dhe.rwar Pagoda.a. It contains also a. small additional rent
upon salt pans, the produce of.cocoa.nut trees formerly pre-
sented to Amildars at festive.ls, a.nd a great variety of other
~rifling articles.''
On Hyder (Haidar) Ali's conquest of Bednore (which in-
cluded Kamna. and Soonda) in 1763 (l) he is stated by Sir
T. Munro to have ea.used "an investigation to be me.de into
every source of revenue for the purpose of augmenting it
wherever it could be done." In a tabular statement in con-
nexion with his report, Sir T. Munro particularised the extra
assessment imposed by Hyder Ali. Having been "informed
that e. great part of the deductions made in three preceding
centuries had been granted in consequence of false ste.te-
pients, he (Hyder), therefore, ordered that such a portion of
these lands as amounted, when all extra assessments were
~ded, to their standard rent, should be added to their
Jama; but as it appeared on inquiry that no such lands
wore actually in cultivation, this sum was added to the rent
of those that were so. He ordered the extra. assessment of
(l) Wilka' Hilt., Mysorc, Vol. I., p. 05, wdpoat ChAp. XlL
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BOKBAY HIGH COURT RBPORTS. 87
1711 to ho imposed npon the lands of Patels and other head 1875.
raynts who had then been excused, and an additional assess- VvAKUNTA
m.ent of 12,000 Pagodas to be laid upon the Mangalore BAPuJI 1'.
Hooblee, because it had been only partially subjected to the GonRNn:NT
additional 50 per cent. of 1618." OP Bo1D1Av.
Jfldu,,,tflt.
Munro next mentions the additions made to the 8,SSCSS-
ment of Kanara and Soonda by Shaik Ayo:,. (m), who was
appointed by Hyder .Ali, Dewan of the provinces of N uggur
and Kanam. He restored to the standard rent the chargo
in respect of Tunkas (n) to peons which had been previously
remitted. "He raised the rent of all cocoanut plantations.
He calculated the amount of all Roosooms, services, &c.,
usually exacted from Amilda.rs and Killadars, and added
them to tae land rent. These 'various heads taken together
form the greatest extra assessment next to that imposed imme-
diately after the conquest by Hyder himself, and as it is also
one of the most recent it is always most complained of; and
on this account Dhoondia, nfter taking Nuggur in June last
promised in the Kaulnamn.s which he sent into Kanara. to
abolish it."
Munro, after mentioning some further extra assessments
made in the time of Hyder Ali, proceeded to the reign of
his successor Tippoo, during which the chief " addition
made to the land rent was by the total resumption of all
Inams." He then continued thus:-" Tho other heads of
actual increase, being similar to those of his father, require
no explanation; but there is, in column 64 (of Munro's
tabular statement) a nominal increase of no less than Star
Pagodas 2,52,589-27-66, no part of which was ever col-
lected. It is composed of a tax upon cocoa.nut trees
amounting to Star Pagodas 17,753-32-54 ordered in 1789,
of an additional land tax of 30 per cent., and of a tax
a.mounting to 7i per cent. of the land rents, which, it was
supposed, might be raised from shroffs and tobacco, by
(m) Ae to Shaik Ayaz, see Wilk.a' Hist., Myaore, Vol. I., p. 406 Madras
reprint.
(11) See Exhibit. A, l>P· 12, 14.
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88 BODAY HIGH COURT RBPOBTS.
1875. farming the sale of coins. to particular shrotfs and raising

VYARUNTA the price of tobacco. This 87 i per cent. imposed in 179_.
BAPWI
11. as well as a Nnzzerana in 1792 of 50 per cent., seem to
':;;~=: have been suggested to Tippoo by his advisers merely with
a view of involving his accounts in confusion, that they
Judgm,,&t. might with the more safety embezzle the revenue ; for in
fact it was only the land rent that was collected and entered
in the village accounts, but which was afterwards in the
Kutcherries classed under the heads of N nzzera.na 87 i per
cent. additional and ' Land Rent,' and the simple balance of
land rent by being divided into these three classes, grew into
such a confused mass of balances as to set all investigation
at defiance." After stating that those portions of the land
rent which had been received in kind were commuted for
a money payment, Munro says :-" The increase of land rent
is in his tabnlar statement divided into 'extra. assessments'
and 'new heads of revenue,' because it is the extra assess-
ments alone that add to the burthen of the landholders,
and exhibit the excess of the modern above the ancient
assessment of the same lands. The annual assessment is
still written, not only in all general accounts of districts,
but in those of every landholder. It is alone considered
as the due of Government ; all subsequent additions are
considered as oppressive exactions. They are not called
rent, but are stigmatised with the names of chaut, imposts,
fines, &c., and distinguished by the name of the Dewan
who first levied them. They were always opposed by the
inhabitants, and it was, therefore, necessary to make them
as general and equal as possible by an even rate of per-
centage. This forms a remarkable distinction between the
land rent of Kanara. and th.at of Mysore and the neighbouring
countries, for there the rent of every village and of almost
every rayut fluctuates yearly because it is .not fixed upon
the land, but is regulated according to the supposed ability
of the cultivator."
In a previous part of the same report (o) he had spoken
of the accounts kept by the Kumums or Sbanbogues in
{o) Exhi"bit A, p. 9:
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BOKDAY IIIGIJ COURT REPORTS, 89
black books, which at that time (A.D. 1800) were he said 1875.
in a sufficient state of preservation " to furnish a complete VYAKUNTA.
BAPUJI
abstract of the land rent during a period of more than four v.
hundred years' ,, Those books appear to have since' for GoVERNllENT
OF BOMBAY,
the most part, been mutilated by insects or destroyed by
:fire (p). Subsequently (q) he,Bays thatthoseaccounts "de- Jllllg1Mnl.
monstrat.e that tho fourth of the gross produce, saiJ to have
been taken as the Sarkar's share in the Vizianagar assess-
ment, was fully as much as was paid by the rayuts under
that Government, for after the addition made to it by the
Bednore family, in 1618, of 50 per cent., besides many smaller
additions making about 20 per cent. more, it appears to
have been little felt by the inhabitants. Indeed it appears
that the Sarkar's share was reckoned higher than it ought
to have been by adopting the Shastr rule of the seed yiclu-
ing 12 to 1 as the basis of cultivation; for an ancient esti-
mate of produce and the expenses of cultivation drawn up
at the time of the original assessment makes the Sarkar
share one-sixth, which was probably nearer the truth than
one-fourth. Whatever proportion it might have been to
the gross produce in 17G2-G3, at the time of the conquest of
Kana.ra by Hyder, it still seems to have been sufficiently
moderate to have enabled the country, if not to extend its
cultivation, at least to preserve it in the same flourishing
state in which it had been in earlier times. Where di~tricts
were in a decline, it was not caused by the land rent, but bad
been the consequence of the diminution of their population
during the frequent re~olts of their numerous petty Polygars,
or it had been occasioned by temporary acts of oppression ;
for the Rajahs of Bednore, though they adhered to the prin-
ciple of a fixed land rent, frequently permitted their favour-
ites and dependants, when placed in the management of
(p) Exhibit A, p. 164. See also Printed Bke., Vol. III., pp. 73, 78, 80,
81, et Mq. 234; viz. Exh. 12, paras. 71 to 75; Exh. H. H., paraa. 2,5; and
Exh. I.I., para 53, which show that the val.ne of the black books waa
wholly over-eatimate<l by Munro. J'ide i11Jra, p. 134, note (,,), and p. 201
el aeq.
(ql /bul., p. 19.
B 117-l
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90 BOJIBAY HIGH COURT REPORTS,
1875. districts, to ruin many of the principal inhabitants by the

Vv.&KUNTA exaction of exorbitant fines under various pretences. From
BAPUJI
v. these and other causes there were, in many parts of the
~Pv&=~ country, tracts of waste land which paid no rent, and which
could not be sold (r) ; bnt the lands which were occtWied
Judgment. could, for the most part, be sold at the rate of from one t-0
eight or ten years' purchase of the Sarkar rent. I have
met with some instances of fields which had been sold
so high as twenty-fiTe and thirty years under the Bednore
princes ; therefore the outstanding balances which have since
been common in Kanara were almost unknown. It was
thought unnecessary to keep annual details of the state of
cultivation. It was never inquired what portion of his estate
a landlord cultivated or left waste. It was expected that in
whatever state they were he was to pay the whole rent.''
Munro then states that sales 'of land for arrears of revenue
were of rare occurrence and considered harsh measures.
Time was usually granted, or a loan of money given, or the
debt remitted.-" The village or district was·scarce ever as-
sessed for individual failures. On the whole the revenue was
then easily realised, and when there were at titpes outstand-
ing balances, they seem to have proceeded rather from mis-
management than from the operation of the land rent."
He then laments that "Kanara has, however, now (1800)
completely fallen from the state of prosperity," that its lands
have to a great extent become waste or unsaleable, and its
inhabitants as poor as those of the adjacent countries. He
particularises Ankola (with others) as having become depo-
pulated, and attributes the decadence of Kanara and Ankola,
&c., to the oppressions of Hyder Ali and Tippoo. Speak-
ing of Hyder Ali, he says that " the whole conrse of the
administration of his deputies seems to have been nothing
but a series of experiments made for the purpose of dis-
covering the ntmost extent to which the land rent could be
carried, or how much it was possible to extort from the
farmer without diminishing cultivation."
(r) That is, for which a purchaser could aot be found.
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BOIIBAY HIGH COURT BEPOBT8. 91
The reign of Tippoo, his successor, as we have already 1875.
stated, was marked by heavier assessment and oppression VvAKUNTA
BAPUJI
and greater mismanagement. When the revenue fell into v.
a.rrea.r " he knew no way of ma.king up for failures, but GovxBxNMBNT
OP OMBAY.
by compelling one pa.rt of the rayuts to pay for the defi-
ciencies of the others. He made them pay not only those J~nt.
which Sl'OSe from the waste lands, but also of dead and de-
serted rsynts, which failures were daily increasing. Severity
and a. certain degree of vigilance and control in the early part;
of his Government kept the collections for some time ncal'ly
at their former standard ; but it was impossible they could
remain so long, for the amount of land left unoccupied from
the Bight or death of its cultivators became at last so great
that it could not be discharged by the remaining part of
t,he inhabitants, and the collections before the end of his
reign fell short of the sssessment from 10 to 60 per cent.
The measure wh.i£h he adopted to preserve his revenue was
that which most effectually destroyed it, He forced the
raynts, who were present, to cultivate the lands of thoso
that were absent, but, as the inoressed rent of their own la.nds
required all their caz,e and labour, by turning a. part of it
t,o those new lands, the produce of their own Wllo8 diminished,
and they beca.me incapable of paying the rent of either" (..,}.
'!'his policy extinguished very many oi the e.ncieu.t proprie-
tors and rendered mnd unsaleable. The pmctice of furc-
ing lands upon cultivr.tors Munro described a.a prevalent
more or less through Kanara, and as very general everywhere
to the north of Kundii.pur (Cundspoor) i.e., through Soonda.
and Ankole. (t),
In paragraph 4 of the same.report (·u), Munro speaks of

the inhabitants of Kana.ra (except in the districts claimed by
the Polygars) as "having once been in possession of a fixed
land rent " and as " still universally possessing th.eir la~ds
as private property-circum1:1tances which distinguish Ka-
(a) Munro's Report, 31st May 1800, Exhibit A, p. 22.

(t) Jhi<l., pp. 22, 23. (,() Exhibit A, p. 8.
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"'-- ·
92 BOXBAY HIGH COURT REPORTS.
-1875. nara in a remarkable manner from all the countries beyond

VvAKUNTA the Ghauts, and which must be attended to in whatever aystem
B~~11 may hereafter be fram,ed for its management." Again, in
GonBRlOlKNT
OF OMBAY .
paraurA:ph
o · -.
22, he says :-" The demand of the Sarkar W88
fixed for two centuries and a half under the Vizianagar Oov-
Jud!]ffleflt. ernment, and may be said to have been fixed under the
Bednore Rajahs, also, during more than a century ; for in
all that period the fiud additi<ma to it hardly amounted
to ten per cent.'' And in paragraph 23 he said:-" The
alienation of land by sale or otherwise was unrestrained ; for
nothing but gift, or sale, or nonpayment of rent could take
it from the owner. If he absconded with balances standing
age.inst him, it was transferred to another person, but if he
or his heir returned at ever so distant a period, it was restor-
ed on either of them paying a reasonable compensation for
the balance, and such extra expenses as might have · been
incurred on account of improvements." And in paragraph
26 :-" The lands of Ka.na.ra. are still to be considered as held
under the same conditions, and governed by the S&Ine rules
of transfer, as they were under the ancient Government.. The
increase of assessment by Hyder and Tippoo Sultan has in
some places annihilated the old proprietors, and it has every-
where diminished the quantity '' (qu.an-e value or interest)
"but not altered the nature of the property." He then tes-
tifies to the earnestness with which they cherish the residue
which has been left to them ; and that " the destruction of
part of the property by the heavy demands of the Sarkar
seems rather to have increased than impaired the attach•
ment of the proprietor to the remainder. He never quits the
estate of his ancestors while he can live upon it as a farmer
or a labourer. But if, after paying the Sarkar rent, and
what is due to himself for his labour, there remains the
most trifling surplus, he will almost as soon part with his
life as with his estate." "Disputes" (i.e., between ·private
individuals) " concerning land, where tho property frequently
does not amount to ten pagodas, aro often carried beforo
every successive Amildar £01· twenty years."
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DOKDAY HIGH COURT REPORTs, 93
The right, here mentioned by Sir Thomas Munro to have 1875.
existed in ancient times, whereby proprietors who had desert- VYAKUMTA
BAPUJJ
ed their lands might, after the ]apse of an indefinite period, 11.
come back and reclaim them, has been in some instances ~:rV:;~~~
acknowledged; but Mr. Blane, in his report as Collector of
Kanara, made on the 20th September 1848, a State paper, J ~ .
which is preeminent in ability and accumcy amongst the
many which have been given in evidence in this case, says
that " this right" to recover the land " is not at all well estab-
lished, even as a theoretica.l one" (v). The same right has
in bygone years been claimed by, and in some instances
allowed to, Mira.sda.rs in this Presidency ; but that pretension,
though often made in the High Court, haa never, so far a.a
we know, been recognised by it in any actual decision. On
the contrary the claim to miras land has, for a long time
past, been regarded here as subject to the same laws of limit-
ation as regulate suits to recover other immoveable property.
Salu v. Ravji (w). Arjuna v. Bhavan (z). A dictum in 10
Bombay High Court Reports 326, not essential to the deci-
sion there pronounced, if intended, (a point perhaps not quite
certain,) to indicate different doctrine, would appear to have
been ma.de without a. recollection of those caaes, which have
been frequently followed, and should, we think, be regarded
as settled law in this Court. We shall presently see that
Munro himself in practice limited very strictly the supposed
right to claim the restoration of deserted land. To his
Minute of 1824 we have already referred as placing private
immoveable property in Kanara in the same category with
miras. His own narrative of the history of the revenue in
Kanara (in his report of the 31st May 1800) shows that in
describing it as once having had a fixed rent, he cannot mean
absolutely fixed even before the conquest by Hyder Ali.
That narrative exhibits how the land revenue previous-
ly to that event varied, and that the variation was almost
uniformly in the direction of augmentation. The fl.uctua.-
(v) Exhibit A, p. 238. (w) 1 Bom. H. C. Bep. 41.

(;z:) 4 Ibid., 133 A. C. J. ; and dee 6 Ibid. 66 A. c. J .
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BOJIBAY HIGH COURT REPORTS.
1875, tione were neither so frequent nor so violent as in many

Vn1iwNTA othct parts of India, but they sufficiently indicated that the
B4PUJI
"· rulers of Kanara. did not regard themselves ae coQ.fined
or BoJD1A.Y. Wl"thin any 1mpassa
GOVERNJRNT . . the na.t ure of an mvana-
ble boundary ill . .
ble standard. Munro, therefore, in epealtjng of the past
J~
condition of that province, must be understood as using the
term " fixed " with respect to land revenue in a. compara-
tive and not in an absolute sense. His previous experienc.e,
as an Assistant Collector, in a province {y) where the land
revenue was high and in frequent fluctuation, c.aused its
comparative lightness and steadiness in Ka.nara previously
to its subjugation by Hyder Ali to strike him. more forcibly
than would have happened had his financial career com-
menced in Ma.la.bar or other favoured provinces where, as
already remarked, he would have found what he, Col Wilks,
and other writers on Indian affairs describe as private landed
property, i.e., where the land-holding ra.yut is subjected to
so moderate an assessment as to leave him a. profit beyond
the expenses of cultivation sufficient to render his land
marketable. This does not necessarily imply an assessme11t
absolutely inalterable. The subsequent experience of Munro
in the Dekka.n in 1817 and 1818 considerably extended his
information, and, as his Minute of 1824 indicates, enabled
him to identify private property in land in Kanara with the
Miras tenure in that region.
The fa.et, that the British Government succeeded neithel"
the Visia.naga.r nor Bednoro raj in Kana.re., bat the Maho-
medan rule of Hyder and Tippoo, must not be forgotten, and,
as we shall presently find, was not omitted from the consi-
deration of Munro. Those sovereigns, at the least enforced,
if they did not transcend, the Hanifian Canon that-" there
shall be left for every one who cultivates his land as much as
he requires for his own support till tho next crop be reaped
and that of his family a.nd for seed. This much shall be left
him. Wha.t remains is Kharaj, and shall go to the public
treasury."
(y) Baramahl
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We now pass to the revenue history of North Kana.re. in 1875.
so far as it regarded the Province of Soonde.. Of the.t pro- VYAKUNTA
BAPUJI
vince, Munro, in the report of the 31st May 1800 (z), se.ys : - "·
GOVERNMENT
'' Soonda has undergone e. much greater reverse the.n oF BOMBAY.
even Kanara, but it has not been occasioned solely by the Judgmtnt,
tyranny of the Mysore Government. Its decline seems to
he.ve begun under the Mahomedan princes of Bijapur, and
to have continued under its own raje.hs, who were succes-
sively tributaries t.o the Bijapur sultans e.nd the Mogul em-
perors, and who, besides the payments of their Peshkash,
were compelled to satisfy the rapacity of the Omrahs, under
whose control they were placed, by heavy exactions from
their subjects."
" Soonda has, like Ke.nara, an ancient land rent. Sanads
mention _a survey made in the 2nd century : but whether
what is now called the old land rent is the same or a more
modern assessment is uncertain.
" Gardens or plantations of cocoanut, betel and pepper are
considered as private property, and follow the same rule as
in Kanara, but all other land u supposed to belong to tlte
Sarkar. It is also understood that, even in gardens, the
property of the soil is vested in the Sarkar, and that only
the trees belong to the owner. AB the Sarkar, however,
has no right t.o the ground whilst the garden remains,
this is a distinction that never can be attended with any in-
convenience to him; for when a garden is once planted it
may be kept up for ever by a succession of young trees, so
that he may be said to be the proprietor of the soi] as well
as of the produce. As in Soonda Payen Ghant one-third
of the land rent arises from cocoanut and betel-nut gar-
dens ; as all rice lands are occupied b-iJ Sarkar tenants
who are not removeable while they pay their rents, except
in the case of another person offering a nuzzarane.,
which seldom happens ; as in Soonda Balaghaut about
three-fourths of the land rent is drawn from gardens of
(z) Exhibit A, p. 27.
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96 BOXBAY HIGH COURr REPORTS .
1875. betel-nut and pepper ; and, as it is only in a few villages

VvAKuNTA on the Mahra.tta frontier that the ra.yuts ever quit their lands,
BA!.un there seems to be nothing else wanting but a redaction of
GovxBoRNMENT the present assessment, in order to constitute the rice lands
OJ' MBAY.
private property as well as the gardens. There is even now
Jvdgment. a certain class of them distinguished by the name of Shassa.n
or Sanad lands which have in this manner become private
property. They were originally waste lands for which a nuz-
zarana was paid to the Sarkar, in consideration of which
they were ma.de over to the purchaser for the simple shist
or standard rent exempt for ever from all extra assessment.
They amount to a.bout six or eight per cent. of the Sarkar
lands. All rice lands cultivated and waste, which have no
sa.nad, being liable to be sold by the Sarkar, lands highly
improved were ,sometimes taken from the ancient tenant
and given to a stranger for a nuzzarana, who, at the same
time, received a sanad which secured him against all future
increase of rent."
"Exclusive of those two descriptions of sanad lands, no

land in Soonda is saleable except gardens, and many of
them even, in consequence of the rent with which they are
loaded, a.re unsaleable. Punjymahl (Panchma.hal) or Soonda.
Pa.yen Ghant, is nearly in the same state with respect to
cultivation as the most desolate districts of Kanaro.; but
Soonda Balaghaut is much worse than either. It is nearly
a complete desert ; it has not throughout its whole extent a
cultivated spot of a mile square, except a few small openings
thinly scattered; all the rest of the country is overgrown
with so thick a forest that it can only be penetrated in the
few places where roads have been made. Most of the heads
of villages formerly retained parties of thieves in their
service ; for Soonda having long been a frontier country
touching upon the boundaries of several different powers,
and its jungles affording the most complete cover to banditti,
it has probably been accustomed to plunder all its neigh-
bours, and to be plundered by them ever since those circum-
stances concurred to favour such disorder."
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BOIIBAT HIGH COURT REPORTS. 97
From the foregoing description of Soonda we learn that, in 1875.
Munro's opinion, the lands there for the most part belonged Vvuu1'··u.
to the State, and that private property was exception · al (a }• Buu.nv.
Certain limited species of lands, such as gardens, &c., he GoVERBo.!IKENT
OJ' KBAY.
deemed to be private property, bnt rice lands he affirms
to have been genera.Uy occupied by Government tena.nts Judgme11t.
who ordinarily were not removed so long as they pa.id their
rents, unless a.nother person offered a nuzzara.na (a fine,
or benevolence). It is important to observe that the pla.in-
tiff's vargs have been admitted by his counsel, in the conrse
of the hearing before us, to be all rice lands (b). Certain rice
lands, called shassan or sanadi lands, held by some persons
under special sanads, containing a proviso age.inst increase of
assessment, Munro esteemed to be private property. These
were exceptional ; all other rice lands he asserts 'to belong to
the State. For not one, of the many vargs in respect of which
the plaintiff has brought this suit, has he, as already noted
in the commencement of this judgment, proauced a sa.na.d,
mulpa.tta, ka.ul, or other title-deed. In para.graphs 54, 55
of the report of Mr. Harris, as Collector of Kanara., to the
Madra.s Board of Revenue, dated 14th June 1821 (c), he
notices the extreme difficulty experienced by Munro in
Ankola in obtaining any revenue accounts or documents,
and he states that all were suppressed by the Shanbogues
(village accountants), who pretended that during invasions
they had been lost or destroyed. These officers had entered
into a confederacy to conceal every account which contained
information as to the productive powers of the land or
mode of assessment under former Governments. Mr. Harris
subsequently succeeded with great difficulty in obtaining •
aome few accounts. He speaks of a Rekha ( or shi.st) as es-
(a) See, to the like effect, the reports of Mr. Alex. Read (Collector of N.
Kanara), of l11t May 1801, and 30th April 1802 in the Appx. to tha Fifth
Parliamentary Report (1812), Madras reprint of 1866, pp. 466 and 477 ;
and Report of Hr. Harri11 of 14.th June 1821, para. 24, Exh. No. 9, Printed
Bu., Vol. III., pp. 33, 39.
(b) A11 to the unT&rying nature of the crops, ,u plaintiff"& Exhibit U,,
Printed Books, Vol. II., p. 31.
(c) Defendant's Exhibit No, 9, Printed Books, Vol III., pp. 5!1, 53.
B 117-11i
Digitized by Google
98 BOlfBAY HJOB CO'U'RT RJ!POR'l'8,
1875. tablished by the Adil Shah dynasty (Ma.homedan) of Bijapur

~ ; ; : ; - founded (1489 A.D.) by Ynsuf (Eusof) Adil Shah, the south-
BA:,u,i ern boundary of whose kingdom Monntstua.rt Elpbinstone
GovnNMZNT describes aa the river Tumbadra (Toongbuddra), one of the
OJ' Boll(]IAY.
principal sources of which the maps represent as lying to
Jwdgmffll. the southward of Soonda and Bilghi. In the same manner
as the Roman Emperors assumed the title of Cresar, so did
the kings of Bijapur that of Adil Shah (d). From Yusuf
Adil Shah, the Portuguese conquered Goa. (Ferishta, Vol.
III., 29, 30, 34). Ankola (together with other territory)
was wrested from the last of his successors by the celebrated
Mahratta Chief Sivaji, A.D. 1673-1675 (e), in whose pos·
session it was when visited by Dr. Fryer, A.D. 1675-76.
Sivaji built there at Karwar (Carwar) the forj; of Sadasiv-
ghur (f). He died A.D.1680, and was succeeded by his son
Sambhaji, l"who was executed by the command of the Em-
peror Aurangzib in 1689 (g). In his Mahrati provinces,
Sivaji's r.evenue system was founded upon that of Dadaji
Konedeo, (as to which see Grant Duff's Hist., Vol. I., p. 93),
which was similar to that of Malik Ambar, (described in the
same volume, pp. 70, 71). Grant Duff says:-" The assess-
me~ts were made on the actual state of the crop, the propor•
0
tionate division of which is stated to have been three-fifths

to the rayut, and two-fifths to Government. As soon as
Sivaji got permanent possession of any territory, every
species of military contribution was stopped ; all farming of
revenue ceased ; and the collections were made by agents
appointed by himself." (Ibid., pp. 169, 170). To what ex-
tent (if any) he ca1Tied his system into effect in Ankola,
there is not any evidence before us. That country does not
appear to have been subject to the Mahrattas for more than
nine to eleven years. Dr. Fryer's account of that country
(d) Fryer's Travele, p. 168, (ed. of 1698).
(e) Grant Duff's Hist. of the Mahrattas, VoL I., pp. 188, 1~, 250;
Elph. Hist., p. 566 ; Fryer's Travela, Letter IV., (.,"hap. I., pp. 146, 158,
(/) Grant Duft', Vol. I., p. 195. (g) Ibid,, p. 261.
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BOlrnAY moH COURT RIPORTS. 99
in A.D. 1675-76 leads to the supposition that Sivaji had not 1876.
then a very firm grasp of it. ~-:;:;-
BAPUJI
The Dessais of Karwar and the Chief or Raja of Soonda v.
. a\} egiance
appear to have ca.s t off th cir . to Sam bha31
. . A.D. 0oVER!i'MEKT
, BousAv.
0
1684, five years previously to bis death (h). The kingdom of
Bijapurwa.sextinguished A.D. 1686, on the capture of Bijap6.r Jadgmmt.
by Aurangzib in that year. The last of the Kings, Sultan
Sikander Adil Shah, fell, while yet in his minority, into the
hands of his conqueror, was kept a close prisoner in the
Mogul camp for three years, when he died suddenly, not
without suspicion of having been poisoned by Aurangzib (i).
The Emperor Akbar and his minister Todar Mul, after
settling for the Mogul dominions the quantity of produce
due to the State as land revenue, provided for its commuta-
tion into money, and, having regard to the fluctuations in
the value of money, provided that the rate of commutation
should be periodically reconsidered, and, if necessary, read-
justed (j). Todar Mul's system was afterwards introduced
into the Dekkan by Shah Jehan (k}. A quinquennial scrn-
(h) Grant Duff', VoL I., p. 238.
(i) Ibid., p. 246. A liat of the Adil Shahs of Bijapur down ~ the
period at which the History of Fcriahta terminate• (see Vol. III. Ferishta
by Briggs, pp. l to 188), is given by Mountstuart Elphinstone in his
History (Appx. to 4th. ed. p. 667). The last name mentioned in that list
ia Ibrahim Adil Shah II . He died A,D, 1627, much about the eame time
p.
u Ambar Malik (Elph. Hist., 505, Grant Duff', Vol. I., pp. 73, 74), and wna
eucceeded by bis son Muhammad Adil Shah, who died A.D. 1656, (Elpb.
Hist. p. 516, Grant Duff' Vol. I., 113), who was succeeded by his son Sultan
Ali Adil Shah II., who died A.D. 1672, and was succeeded by his son Sultan
Sikander Ali Shah, then in his fifth year (Grant Duff', Vol. I., p. 186 ; Elph,
Hist., p. 566. See Fryer's Travels, Chap. IV., Letter IV., pp. 168, 173).
Some of the Adil Shahs profe88ed to be of the Sbia faith, others to be
Sunis of the Hanifa school. Yusuf, the founder of the dynasty, oscillated
between those creeds-(Ferishta by Briggs, Vol. III., pp. 22 to 25, 29, 34).
His sncce88or Iemael was a Shia, (Elph. Hist., p. 668). Ibrahim I. was a
Suni (Ibid; and Ferishta, Vol. llI., p. 78). His son Ali was a Shia. Ibrahim
II. WM a Suni of the Hanifa persuasion (Ferishta, Vol. III., pp. 116,169;
Elph. Hist., p. 668). In his time the Sunisobtained the supremacy. (Ibid.)
(j) Ayin Akbari, Vol. I., p . 315; Elph. Hist., p. 473, 4th ed.; Galloway,
214.
(t) Grant Duff, VoL I., p. 22; Elph. Hiat., p. 614.
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100 BOJIBAY HIGH COURT RBPOBTS,
1871S. tiny is, under the name of Reka.h Jirti, (jharti .(l) ), spoken
Vv~ of by Mr. Harris as existing in Ankola in the time of the Adil
BAPUJt
v.
Shah dynasty. It would seem to have been of the same
OonaNJDNT character as Todar Mul's system of readjustment with the
0
" BoMBAY. additional object of detecting frauds committed by the here-
Jr,,dgmal, ditary accountants {Shanbogues, Kulkarnis, Kurnnms,) of the
district {m). Mr. Blane mentions that periodical revisions of
assessment also took ple.ce in Ka.nara (n), and Sir T. MUD.l'O
states that on those ocoasions only, which he describes as
of rare ooourrenoe, oould the rents of Mul-gaini tenants be
raised when a.n additional assessment was imposed upon their
landlords "after a new valuation" (o).
In addition to the shist, various other assessments were
imposed by the Governments which prevailed from time
to time in Soonda and Ankola, including that of Hyder
Ali and Tippoo. That country was conquered for Hydel"
Ali by Fazul Oolla Khan {Hybut Jung) in December
. 1763 (p). The additional assessments were, as in Kanara
proper, styled shamil, and accordingly we find in the plain-
tiff's Exhibit AE. (already mentioned) that the revenue
charges upon his vargs appear under the name of shist and
eha.mil. One of these extra assessments, the Putti, was
imposed, as previously stated by us, to the extent of 30 per
cent. on all gardens, and from 21 to 12! per cent. upon all
(l} A Mahrati word signifying an inspection, examination, or scrutiny
(m) Report of Mr. Harris to Ml\dras Board of Revenne, 14th Jane i821,
fIL,
aragmphs 25 and 52 to 64.
p. 39.
(Defta.' Exhibit No. 9,) Printed Books, VoL
(n) Report of Mr. Blane of 20th Sept. 1848 to Madras Board of ReT•
enue, para. 71, Exhibit A., p. 218.
(o) Exhibit A, pp. 85, 86, where Mr. Read, in his report of the lit Jan•
nary 1814, extracts the passage from Munro's remarks on Mr. Ravenabaw'a
Survey of July 1801, et trnle 111pra p. 21. In Mall\bar there waa a new
IMl&eBBment of garden laud every twelve years; Rev. SeL, VoL I., p. 857,-
Mnnro'a Report of the 4th July, 1817. As to occasional enhancement of
land revenue payablo by ::\{iraadars in the Deccan, aee Rev. Sel., Vol. IV.,
pp. 318, para. 35; p. 477, para. 130; p. 479, para. 143, nnd p. 527, para. 17;
and as tQ oorroction of ine<1ualities of assessment by new surveys under
Native Governments, wi p. 481, para. 151, in Mr. Chaplin'• Reporte of 1821
and 1822.
(Jl) Wilke' Myeore, Ch. Xll., pp. 280, 281.
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BOKBAY HIGH COURT RIPOJtT8. 101
fields of rice, by the Rajah of Soonda, for the purpose of 1876.

discharging the Mogul Peshkash (q), these Rajahs having ~~
become tributary to the Emperor of Delhi from or shortly &:,un
after the conquest of Bijapur by Aunmgzib. Hyder Ali and GoVKJCBo!illlllft
o:r llBA.Y.
Tippoo seem to have dealt with Soonda in the same way as ·
with Kanara. Munro, in paragraph 33 of his report of the 31st Jwlg,,w,d.
May, speaking of both of these provinces, says:-" There can
be little doubt that both Hyder and Tippoo generally raised
rents as high as they could go, and frequently beyond what
the lands could bear'' (r) ; and in paragraph 36 he describes
Honore and Ankola as '' in a much more desolate state than
any other part of Kanara " (s). The name of Kana.ra was
there, as frequently on other occasions used by him and
other writel'S, as including ·Soonda Balaghaut and Soonda
Payen Ghant.
We now proceed to the acquisition of Kanara and Soonda

by the British in A.D. 1799.
In order to be near to the scene of action during the pre-

parations for the final campaign against Tippoo Sahib, the
Earl of Mornington (afterwards Marquis Wellesley), Gov-
ernor General of India, leaving Fort William, repaired in
December 1798 to Madras, and by proclamation of the 2nd
of January 1799 assumed, under the St.at. 83 Geo. III. C. 52,
Sec. 52, the duties of Governor of Madras, where .he conti-
nued until the 5th of September in that year making the
an-angements rendered necessary by the fall of Seringa-
pata.m and death of Tippoo Sahib, which occurred on the
4th of May 1799 (t). In a letter of the 1st of June 1799,
addressed to Lieutenant-General Stuart of the Bombay
Army, who had ta.ken a brilliant part in the campaign,
Lord Mornington after directing him to take possession of
(q) Report of Munro, 31Bt May 1800, para. 10 (Exhibit A, p. 13).
(r) Exhibit A, p. 29. (,) Ibid., p. 31.
(I) Welle~le7 Deepateh111, Vol. I., pp. 3M, 388,389,390, 391, 392, {-06 ;
Vol. IV., p. 119. Mill's Hiet., Vol. V., p. 76, lith edition.
Digitized by Google .,("'

1875.Kana.re. (u), which had formed part of the dominions of

~-;;;;- Tippoo, said:-
BAPu.n
11. "I now proceed to add such general directions as occur
GoVmtNMENT •
0 ., BoMBAY. to me with respect to the first settlement of the country,
if it should fall into our hands. With respect to the policy
J""1gmmt. to be observed upon our entrance into the Government of
Kanara, our great object should be -to reconcile the inhabit-
ants to our authority by the utmost degree of indulgence to
their prejudices and customs, and by refraining from any
other changes of system than such as evidently tend to
alleviate oppression, if oppression were felt by the people
under the former Government. With this view I empower
you to establish such a temporary ayatem_ of administration
of revenue and justice as may appear best .calculated to
maintain order and tranquillity, and to conciliate the affec-
tions of the people" (v).
The Commissioners first appointed for Mysore (4th June
1799), amongst whom was Colonel Barry Close, were by
Lord Mornington directed not to interfere with General
Stuart in the management of Kanara (w).
Subsequently, the duties of the Commission seem to have
devolved on Colonel Barry Close alone as Resident of
Mysore.
Captain Munro (already so frequently mentioned as Sir
Th<Jma.s Munro, in reputation one of the brightest amongst
the many illustrious names which adorn the British annals in
the East) was, by Lord Mornington, appointed Collector of
Kana.rain June 1799 (a:). He had previously distinguished
himself as A,ssistant to Colonel Read in the newly acquired
district of Baramahl, which Munro was reluctant. ~ leave.
On public grounds alone he accepted his new office m
(u) Kanara is here ueed in ita widest sense, including Soonda.
(11) Wellesley Deapatchee, Vol. II., p.18.
(10) Wellesley Despatches, Vol. II., p. 22.
(:z:) let Gleig's Life of Munro, pp. 224, 225, 232, 233, '1:fl; Wolleeley
Despatches, Vol. II., pp. 68, 87.
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BOMBAY HIGH COURT RBPORTB. 103
Kanara (y). AtTiving there in July 1799, he laboured in- 1875.

cessantly in obtaining information as to the revenue and VYAK.UNTA
land tenures of that province, as to which he made highly B~.uJI
valuable reports to the Government of Madras which have GovuNJDNT
•h d
f urms • . OJ' BoUBAY.
e most important matenals for the arguments
addressed to us on both sides in this case (z). The anxiety Jvdgment, ,
which he expressed for removal to some other district, drew
forth strong expressions of the confidence which that Gov-
ernment reposed in his capacity.. Lord Clive (Governor
of Madras) through Mr. Wehbe, Chief Secretary, sent to
Munro this message:-" Pray tell him my desire of detain-
ing him on the Malabar Coast has arisen from my opinion
and experience of his superior management and usefulness ''
(a), and Mr. Cockburn, a distinguished member of the Mad-
ras Revenue Board (b), in reply to a letter from Munro,
dated 28th February 1800, said:-" I regret your situation
should be so extremely irksome ; the more so, as any
attempt to procure your removal would be considered treason.
to the State. Such is the estimation of your services, that no
one is deemed equal to the performance of the difficult task
you are engaged in; and though I can consider no reward
adequate to the sacrifice you make, yet I trust you will be
able to overcome your difficulties, and that Government will
do you ample justice when you have brought the country
into some degree of arrangement" (c).
Munro, who had in the meantime been promoted to the
rank of Major, remained in Kanara until November 1800,
when, in compliance with his own wishes, he was transferred
(y) 1st Gleig, pp. 227, 228, 234, 285, 242. 3rd Gleig, pp. 118, 115,
(z) Soo plaintiff's Exhibit A, pp. 1 to 64-Reporta dated 4th May 1800,
31st May 1800, 28th June 1800, 4th November 1800, and his letter to his
IJUCOOIBOl'B dated 4th December 1800.
(a) 1st Gleig, p. 310, and aee alao Exhibit C, Vol. III., Printed Boob,
p.209.
(b) WellesleyDe,patchee, Vol. II. 1 p. 239.
(c) Ibid., p. 246, and aee Gleig'a Life of lfunro1 Vol. n., p. 237,
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10(. , BOMBAY HIGH OOURT REPORTS.
1875. to the Collect.orship of the t.errit.ories acquired in 1792 and

Vn.xUNT.t. 1799 under the treaties of Seringa.patam and Mysore by the
BAPU.11
.,, Niza.m, subsequently ma.de over by hi·m on certain terms to
GoVDN.BoKDT the E. I. Company, and thenceforward known as the Ceded
0~ IIBAY,
Districts (d). It is to Munro's career in Ka.na.ra. that our
Judgmtnl. attention must be directed, and to that we now revert.
At or very soon after his appointment as Collector of

Kana.ra he appears to have been, in that capacity, placed
under the immediate authority of Colonel Barry Close, the
Resident at Mysore, but not to have continued so long. On
the 1st of February 1800 Munro was transferred by the
Government of Madras from the immediate control and
superintendence of the Resident at Mysore to that of the
Board of Revenue at Madras, but still was left subject to
the general pol·itical powers of the Resident, as ~ shown by
the following documents in evidence on behalf of the defend-
ants as Exhibits Noa. 1 and 3 : -
DEFENDANTS' ExHmIT No. 1.

To
CAPTAIN THOMAS MUNRO,
Collector of Kanara.
SIR,
Circumstances having now rendered it practice.hie to
place the provinces of Ka.nara and Soonda under the imme-
diate control and superintendence of the Board of Revenue
at the Presidency, in the, same manner as all other parts of
the Company's territorial possessions under this Presidency
are subjected to their authority, I am directed by the
Right Honourable the Governor in Council to desire that
you will obey all such orders as you may receive from that
Board, and that you wiJl make such reports and communi-
cations to it as may be necessary for the administration of
the Civil Government and of the revenues of the provinoe
under your charge.
(d) &hibit No. 40 H. B. ; Gloig, Vol L, pp. 300, ao., 808.
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BOXBA Y HIGH COURT REPORTS. 105
Considering, however, the intimate connection between 1875.

those provinces and the territories of His Highness the VYAKUNTA
Rajah of Mysore. a.s well . a.s their distance from the seat of BAPuJI ~
Government, the Governor in Council still judges it cxpe- GovuNMENT

dient, and accordingly directs, that you shall continue to be or BoxlllY.
subject to the general political powers which have bi:ien . Jvdgmtm.
vested in the Resident of Mysore for the conduct ol affairs
in the conquered countries.
As the Governor in Council considers yon to be the sole

judge on the spot ( subject, as stated, to the orders of the
Board of Revenue and of the Resident in Mysore,) of all
questions relating to the adminiatration of the revenues
and of the Civil Government, His Lordship has deemed it
necessary to furnish the Officer Commanding in Kanara with
an explanation of the powers entrusted to you, and with
orders for a compliance with your requisition for military aid
according tp the established usage under this Presidency ;
these orders are herewith transmitted to be delivered by
you, and I enclose a copy of them for your information.
I am, &c.,
( Signed) J. WEBBE,
Secretary to Government.
Fort St. Georl)e, 1st FebruanJ 1800.
DE:VENDANTS' EXHIBIT No. 3.

&_tract of a letter from Government to tlu, Board of
.Revenue, dated 1st February 1800.
17. The ea.uses which rendered it necessary to place
the Collector of Kana.ra under the immediate authority of
the Resident in Mysore, having, in a. great degree, ceased
to be operative by the general establishment of tranquillity
throughout the conquered countries, we deem it necessary
to place the provinces of Kanara. and Soonda under your
superintendence and control, and we desire that you will
B 117-n.
Digitized by Google
l 06 llODAY 'RIOH COURT RllPORTS.
1815. furnish the Collector with all such orders and instructions
Vvuul'ITA. as yon may judge neoossaiy for ebe administration of the
BAPu.n Civil Government, and of the revenues of thoee provinces.
"·
Govmunrm,rr
18. Under the ericiting arrangement for the conduct
OF BolOIA.Y.
of affairs in Mysore, we still, however, judge it expedient
J ~ . that Captain Munro shall be subject to the.general political
powers which have been necessarily entrusted to Lieutenant

Colonel Close; and we desire that your communications to
the Collector may be made with due refer~noe to this ar-
rangement.
19. Having the fullest reliance on the experience, judg-
ment, and integrit.v of Captain Munro, we wish him to be
as little restrained as possible in the exercise of his own
discretion; but as nothing can more impede the settlement
of the provinces than the revival of antiquated claims to
independent jurisdictions, ri,ghts and la'11.d$, we deRire that
he may be cautioned to receive such pretensiorui (which
appear to have been too frequently advanced) with the
greatest degree of caution. .As we consider Captain Munro
to be the sole judge on the spot in cases of this nature, we
have furnished the Officer Commanding in Kanara with
positive orders to comply with tbe requisitions of the Col-
lector for military aid, to the extent of :b.is means."
In the instructions (e} issued t,o Collectors under the Gov--

ernment of Madras, dated in June 1791, which place them
under the -OODtrol of the Bolll°d of Revenue (!), we do not
find any authority given to Collectora to abandon the right
of Government to vary from time to time the assessment
of lands. Rule 27 is:-" That the Collector do give the
most unremitting attention to ascertain the rules and rates
of assessment on the rayuts under his jurisdiction, and en·
(e) Defendants' Exhibit 2, and Fifth Report of Parliamentar1 CommiLtee
1812. Original ed. p. 709. Madna reprint, pp. 290 to 298.
(/) S« eepeoirJly Rulea 84, 38, 4.5, 70, 11, 14, 17, 24, 26, &o.
Digitized by Google
BOllllA:Y lllGR COURT REPORTS; 107
deavour to fix upon some mode by which they may be 1875.

- -
regulated on general, fair, and ascertained prineipfes.'' And VYAKUNTA
--
BAPUJl
Rule 42 is :-" That no Collector shouid be authorised to
"·
confer grants of lands, or authorise any alienations,. sale, GovKRNK&NT
• 01' BolllBAY.
mortgage, or other transfer of landed property, without the
express sanction of the Board of Revenue ; and that he pre- Ju.dgmmt.
vent all alienations, or grants of lands, by zeminQ.BJJS or
others under his authority.n
These rules direct the Collectors to ascertain existing

rules and rates of assessment,. but do not empower them to
abandon any right which the Government may have then
had to vary the rate of 88Sessment,. nor, of their own author-
ity, to make any such variation.
Even if Munro had carried· with him full powers to fix the
assessment of Kanara and Soonda. once and for ever, the
condition of those countries during his brief sojourn in
them and the a.mount of information which· he could in that
time accumulate were such as to render it improbable that
he would have so bound himself and Government. In
his report to the Board of Revenue-, d&ted the 31st May
1800 (a), he thus describes the condition in which he
found Ka.nara and Soonda. :-" When I entered Kanara
from the southward in July last, the districts of Coombla
and Vittel, lying between Bekul and Mange.lore (b), were
in the possession of two chiefs,. styling themselves Ra-
jahs, who had long been pensioners of the Bombay Gov-
ernment. Jumalabad ha.d refused to surrender (c). A great
part of tae country from Nulsaram to Barcoor had been
ravaged by the Cooroogs. In many places the cattle had
been swept away, the villages burnt, and the inhabitants,
men, women and children, carried off into captivity. The
(a) Plaintilf'1 Exhibit A., p. 6.
(b) Tbeee four plACea are in South Kanara, of which Mount Delly eee1111
to be the eouthernmoet point.
(c) Welleeley Deepatcbes, Vol. II., pp. 11,, 266,
Digitized by Google ....r·

108 BOJOIAY KIG11 corn DPORTI.
1875. followers of Dhoondia (,1) had made an irruption from

Yvunu Bednore into the district of Cnndapoor. Bilghi was in
B.u·cn
r. possession of a Polygar. .A.nkola and Sadasivghur were
G,,.-n!f~ garrisoned by the Sultan's ~poo's) troops and the Rajah
or Bo•a.u·. ' ... 'l' '
of Soonda had :entered that district as his ancient inherit-
Ju,J.,JfflDll. ance. It was the height of the monsoon, and rivers, which
cross the country at the distance of every five or six miles,
were all full, and could only be crossed at the few places
where there were canoes, so that it was extremely difficuh
either t.o commu~cate orders or assemble the ryot.e of the
neighbouring districts in order to settle their rent.I;." Munro
bad only two European Assistant-a, (one of whom was Mr.
Alexander Read, hereafter to be more especially mentioned,)
and erperienced great difficulty in procuring natives capable
of giving him any efficient aid (e). In a letter of the 20th
December 1i99 to Mr. Cockburn, he says:-" It cannot be
tmpposed that I yet know much of the state of landed
property. I have seen enough, however, to convince me
· that it is very different in different parts of the country," &c.
(!). This he wrote from Huldipore (called Haleydapoor
on Stanford's Map of India), a place to the southward of
the river Tuddri and Gokurn, and before he had reached
An kola, which, as already observed, lies to the northward of
Gokurn and its northern boundary, the river Gangavali. Yet
we are asked on behalf of thfl plaintiff to believe that within
fifteeu days afterwards, possibly before he bad yet set foot
in An kola-certainly before he could have had any adequate
information respecting it (g), he determined finally and for
all time what should be the maximum of assessment in that
(d) Dboondia Waugh, Welleel.ey Deepatcbee, Vol. ll., pp. 53, Ul, 261,
eventually defeated and slain by the forces under Col Welleeley on Sept.
10th, 1800; Oleig, Vol. I., p. 268, and see lbicl. p. 247, et uq.
(e) Gleig, Vol. I., pp. 239, 240. PlaintiJf'e Exhibit A., p. 6.
lbicl., p. 240.
(g) The jamabandi of Soonda for Fusli 1209 waa not finished until ~
middle of April 1800. See Munro's letter of the 4thMay 1800 to the Board
of Revenue in Exhibit A, p. 1, paragraph 1. And see the concluding portion
of paragraph 3 of.his letter of the 31st May 1800 to the Boan!, iu &}ubii
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BOMBAY mou COURT REPORTS. 109
country. That is the effect which the plaintiff attributes to 1875,
Exhibit E, a document bearing dat.e on the 4th of Janaary VYAKUNT..l
BAPUJl
1800, which has been dealt with by his coansel as of cardi- 11•
na.l importance, virtually as if it were the princinA.1

r-
muni- GoVERB IIIIDfflT
01' OIi.BAY.
ment of the rights of the landholders of Ankola. It is
difficult to suppose that an officer, so not.ad for ability and Jwdgmol,t.
discretion as Munro, would, at the inception of his mission,
when he was candidly admitting the scantiness of his
knowledge and the varieties in the landed properties in the
districts with which he had to deal, have compromised
himself and the Government which he served.
That exhibit is as follows : -
PllINTll':r'a E.mm1T E (k).
"To
The dignified Govindrav,

Tahsildar of the Talooka. of Sadashivgad, &c.
Compliments.-At this time [be it known that] the vil-
lages of the Kasha of Ankola are being surveyed in order
to [the making of] an estimate of the crops [Azmaish].
Therefore the ryots will be somewhat disheartened. By
the survey being made the total assessment will not at all
be increased. The estimate is being made for (the prepa-
ration of) the Sa.rkar's accounts, but [this]' is not being
done for raising the total assessment. Due notice in ac-
cordance herewith should be -caused to be given to the
ryots. There is no occasion whatever for any fears being
entertained. Consequently the ryota should be duly in-
formed. And, besides this, in those places where the as-
sessment [shist] of (i. e. on) the ryots appears to be heavy,
there it will be reduced, but the total assessment will not
A, p.- 8, in which he 11&)'11 that the Kanara jamabandi was not finished until
January and that of Soonda delayed his report until May. See al110 his
letter of the 28th February 1800 to Mr. Cockburn in Gleig's Life of Munro,
Vol, I., pp. 244, 245.
(h) Printed Books, VoL 11., p. 6.
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110 BOKBAY RIOB COURT REPORTS.
1875. be increased. In accordance herewith the ryots should be

Vv.utUNT..l informed. If twenty personst rope-bearers, be collected and
B"!~.n brought, the wages of the said (persons) will be fixed ac·
OoYDNlRNTBo cording to the pay of the peons in (this) office. If the office
OF IIBAY.
people request [you to supply] rope~ wood, &c., that may
J"'1gtnfflt. be required for the survey, then what is necessary should
be brought and supplied. Credii will be given to you by
the Sarkar for the amount of the price thereof. May [this]
be known.
The date the 4th of January. Shidharte Savatsar (A.D.

1800).
THOMAS MUNRO.
Postscript.-The Moktesars and the village accountants

of the village should be warned to appear before Babo~v
for the purpose of pointing out the boundaries of the Kasha.
The ryots of the respective vargs (i.e., ancestral estates)
sho~ld be warned to be present at the time of the mea·
aurement to point out their respective lands. .May this be
known.
The date as above.
THOMAS MUNRO."
An endorsement shows that this letter was received on

the day of its date.
In estimating the scope and purpose of this letter address-

ed to the Ta.bsildar, it must be recollected that Munro was
only St3ttling the land revenue for the then current year
1209 of the Fmli Era. The commencement of his first
letter (dated 4th May 1800), printed in Exhibit A and
addressed to the Madras Board of Revenue, shows this to
be so. It began thus :-" I now send you my Moyen (Mn·
aiyan) Zabitahs and estimates for the cuJTent year Fusli
1209." " Mua.iyan Zabita.h " for Fusli 1209, means the ap-
pointed or established arrangement of_ jamabandi for . that
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BOJl13A Y HIGH COURT REPORTS, 111
year. Many passages in his reports, made while he was in 1875.
Kanara, indicate clearly that it was for that year only he VvAKUNTA
BAPUJI
was settling the land revenue (i), and it will be presently "·
manifest that he could not have then had authority to do OoVEBoRNMENT
OJ' IIBAY,
more. In considering that point it is indispensable to. bear
in mind that the popularity amongst statesmen of the Judg,tlfflt.
Bengal Permanent Settlement System wa.s, A.D. 1'799, at
the time of the fall of Seringapa.tam and the conquest of
Kamna and the adjacent provinces, though near its culmi-
nating point, still in the ascendant. In fact some portions
of territory within the Madras Presidency were subsequently
brought under the Permanent Settlement Zemindari Sys-
tem (:l), In his despatch to Lord Mornington of the 21st
Marcil 1799, received at Fort William on the 5th August
1799 (k), Mr. Secretary Dundas (afterwards Lord Melville)
speaks of the Permanent Settlement System in terms of
admiration, although admitting that there was then in
Bengal what he regarded as only a temporary increase of
arrears of land revenue. He says :-" On the subject of
Bengal I have much satisfaction in feeling that I have oc-
casiom to say very little. The wise system adopted during
Lord Cornwallis's administration, and to which I make no
doubt you m1.l adhere, leaves me no reason to apprehend
any real danger to the wealth and resources of the valuable
provinces under your administration.''
On the 24th October 1799, Lord Momington in his des•
patch to Mr. Dundas said :-
" We are now employed in framing a code for the intro-
duction of a permanent Bettlement of revenue, and a system
of judicature for the Company's possessions in the Penin-
sula. I have ordered two members of the Board of Rev-
enue to proceed immediately from Madras to Calcutta for
(i) s~ also Exh. 9, (14th June 1821), end ofpara. 19, Printed Bka., Ill,
p. 38, the statement of Mr. Harris to that effect.
(j) ThOBe placea are enumerated in Rev. Sel., Vol L, p. 885, note, and
ittp. 911,
(k) Wellealey Deapatohee, Vol. II., p. 107,
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1875. the purpose of aiding in this salutary work ; and I ni

VvAKUNTA that its benefits will be extended in a short time over thf
BAPUJl
v. whole of the Northern Circars, the Jaghire, the countri~
GovnNKBNT under the Company's dominion ceded in the last war and
~B~u~ '
those conquered in this (with the exceptfon of Malabar alld
Judg11U11t. Kanara), the countries·of the Southern, Eastern and Western
Polygars, and the Kingdom of Tanjore " (l).
And, so late as the 5th of March 1800, Lord Morningt.on

wrote in bis despatch to Mr. Dund~ as representing the
Home Government, thus : -
" The conquest of Mysore will, I trust, enable us to settle

Malabar and Kanara on a systematic and durable plan of Go,-
ernment. The subject is now under my consideration" (m).
Hence it is evident that, so late as the 5th of March

1800, the Governor General had not determined the basis on
which the settlement of Maia.bar and Kanara should be
made, and, therefore, that he, who originally appointed Munro
as Collector, up to that time had not empowered him to
• bind the Government by any final settlement. In the term
' KanM&,' as there and in the previous despatch of the 24th
October 1799 issued by Lord .M:ornington, we understand
Soonda and therefore Ankola to be included.
The first paragraph of Munro's letter of the 9th of Novem-

ber 1800 to the Board of Revenue, in which he acknowledges
a letter from the Board of the 26th March 1800, shows that
he bad been by them warned in that letter that be "might
be suddenly called upon to make a permanent settlement,"
and is of much importance as establishing that he had receiv-
ed that information before he had penned either of his two
(l) Wellesley Despatches, VoL II., pp. 128, 130. The inatructiom 11
to the mode in which a permanent settlement ahould be made in the pro-
vinces other tha.n Malabar and Kanara, appear to have been illllued b7
Lord Mornington'11 Government' on the 3let December 1799. Rev. Sel.,
Vol. IV., p. 930, para. 31.
(m) Ibid., p. 248.
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BOMBAY BIOB COURT RErORTS. 113
principal letters to the Board of Revenue, viz., those of the 1876.

31st May 1800 a.nd 9th of November 1800. A "permanent VYAKUNTA.
8A.PUJl
settlement," {in the sense in which that phrase, then gen- "·
era.Uy and by Munro individually (n), as those and other of his ~;~!i~~
letters show, was understood,) implied the creation of a land-
ed gentry of the zemindari type, a recognition of them as JudfTIIU»J.
proprietors of the soil, and a fixing, with them, in perpetuity
of the revenue payable to Government, an arrangement,
which if carried into effect on the Bengal model, would
have been irreconcilable with a recognition of the existing
rayuts {whose holdings or va.rgs were for the most part very
small) as owners of the soil paying the land revenue directly
to Government. It would undoubtedly have been a derelic-
tion of duty, so grave on the part of Munro under such cir·
cumstances, not to have inf6rmed the BoarJ, at the earliest
moment after receiving their letter of the 26th March 1800,
that he had already entered into an arrangement with the
ray~ts in Kana.ra and Soonua or either of them wholly in-
consistent with any such permanent settlement, and whereby
!he maximum of their quit ront or land-tax had been fixed
with them for ever Q8 enjoying their lands directly under Gov-
ernment, that we could not believe, without the most dis-
tinct proof, that an office~ of his probity and intelligence
would have been guilty of such an -omission, if he believed
that he had so compromised Govemment. In non') of his
letters do we find any admission or suggestion that he had
done so, or that he conceived that he had any authority so to
bind Government on his own responsibility. Strong recom-
mendations by him on the subject of a maximum of assess-
ment and in favour of a reduction of assessment, we do find,
but no statement of any pledges given by him to the
rayuts on those points. He evidently did not for a momtnt
presume that he had any power to give them. He writes
to Mr. Cockburn, on the 20th December 179!) (o) :-" I was
resolved, after making allowances for the desolation of two
wars, to bring the revenue back to what it had been in
(•) .Exhibit A, pp. 56, 59, 62. (o) Gleig's Life of Muw·o, Yo!. l., p. 238.
JI 117-o
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114 BOJOIAY HIGH COURT RXFORTI.
_ _1875_._ 1789, the last year of any regular government in Tippoo's

VvAKUNTA reign, and then to leave it to Government to relinquish as
BA:~JI much of it as they might think fit." And in his letter of

OoVEa!>'un the 31st May 1800 {p) he says·-" I considered myself
OF BoMBAY. •
merely as a Collector, who was to investigate and report
Jll(/ymmt. upon the state of the country." Any measures which he then
described himself 88 having taken, the whole tenor of that
letter shows that he regarded as temporary and pending the
final determination of Government. It is too as " a Collec•
tor " simply that Lord Mornington described him in bis
despatch of the 3rd August 1799 to the Court of Direc-
tors (q).
And Munro prefaces his account of the vicissitudes of the
revenue of Kanara and Soonda. thus (r) :-" In order to
enable the Board to determine as to the principle on which
the permanent assessment of this country is to be made, it
is necessary that I should offer some remarks on the an-
cient and present state of its landed property.''
And in his report of the 9th November 1800 to the Board

of Revenue (s) he said:-
" 23. Supposing, however, that it may be expedient for
the present to adopt the ~ystem of great estates, the regula-
tions I have recommended will apply to every part of Ka-
nara and to the greater part of Ankola, Soonda, and Bil-
ghi ; but in many villages in Bilghi and Ankola, and
throughout the whole of the villages in Soonda running
along the Ma.hratta frontier, the land belongs to the Sirkar
and may, therefore, be div.ided into estates, and given away
at the pleasure of Government. These villages are in gene-
ral in such a. desolate state that a permanent settlement of
them would now be made under very great disadvantages.
It would, for many reasons, be best to defer the settle-
ment of them and also of Kanara for at least five years. The
Collector can hardly in a shorter period gain the requisite
(p) ExhihitA, p. 18. (q) WellesleyDeapatcbes, Volll. ,p.87.
(r) ExhiLit A, p. 23, paragraph 2".l. (s) ExbiLit A, p. 62, paragraph 23,
-.....
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BODAY HIGH COURT REPORTS. 115
knowledge of the country for carrying into execution a. 1875.

measure of so much importance.'' So that here, acting Vv.-1.11:uNTA
• BAl'UJl
m the spirit of the aphorism already quoted (mpra, p.74), 11•
in which he condemns precipitancy in entering into bindil'\D' GoVKRBNME!'T

-n •:r OMBAT,
engagements, he proposes that any final arra,ng.ement as to
Anko~ and Soonda should be deferred for at least five Judgw:nt.
years. That he was not over-cautious in that advice is
evident from the fact that the opinion ofMr. Harris 21 years
afterwards, i. e., in 1821, eoncmTed in~ the Board of Rev-
enue, was that the informe.tion regarding the resources of
Ankola and Soonda W88 even then too imperfect to justify
any final arrangement as to tlaem (t),. lt is imJX>ssible t~
suppose that Munro, holding such language in November
1800 as that which we have jnst quoted,. could have believ-
ed that, on the 5th or January in the same year, he had
irrevocably pledged the Staie never te increase the assess-
ment in Ankola, in which he had then, at the utmost, only
just set his foot for the first time, e.nd as to the final
arrangement of which he, in the November following,
professed himself unable to decide, and advised Gov-
ernment to defer its own judgment for at least five
years. The survey, contemplated in the letter (E) to the
Tahsildar, if it ever took place, m\ll!t have been of the
most s~mmary and imperfect kind. No record of it is forth-
coming, and Munro does not appear to have, in any of his
reports or letters to the Boord of. Revenue or-GoTernment,
ever mentioned it. The only snrvey,. which he states to have
been made in Ka.nam or Soonda. in his time, was in Barcoor
in South Kanara, and that was proceeding when he left
Kanara for the Ceded Districts (16).
(t) Sec his letter of the 14th June 1821 to the Board of Revenue, Print.
ed Boob, Vol. III., p. 33 et ~q. and Exhibit A, p. 154 paragraph 50 of the
Board of Revenue's Minute of the 15ih Septemaer 1831, and their Minute
of the 29th October 1821, Exh. No. 85 M. S.
(u) Se,, Emibit A., pp. 3, 69, 75, para. 7 of Munro's Jetter of 4th May
1800 ; para. 11 of his letter of 9th December 1800; para. 11 of Mr. RelM!'s
Jetter of 1st JM. 1814; and Exhibit A. J., daterl 31st May 1800, being copy
of a MS. letter from Government authorising the survey of Barcoor.
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116 BOMBAY HIGH COURT RBPORTS.
1875. Writing on the 4th May 1800 to the Board of Revenue m

VYAKUNTj. para. 7 of his letter he ~ays : -
BAPUJI
Govo:·MBIIT " In the charges extraordinary the first article is the sur-
OJI BoKBAY. vey establishment, tlie lands in this country never having been
61.trveyed. The extent of cultivated and waste being un-
known, and the fielcls being so mixed and divided that
hardly anybody but the owner~ knew to whom they belong-
ed, I saw that, without surveying one district, it would be
impossible to form any judgment of the rate of assessment;
I, therefore, began upon the district of, Barcoor, and ii will
yet be several months before it is finished" (v).
That passage is especially important as proving tnat,

without some adequate survey of at least one district, he
thought it would be impossible to form any judgment as to
what the rate of assessment should be. The document E
was issued in anticipation of, and to prevent, possible opposi-
tion on the part of the rayuts to a rough survey, and nos
after such information, as it might afford, he.d been obtain-
ed. The only allusion throughout the documentary evi-
dence which we find to any survey, as having taken place
in the northern taluka.s of Kana.ra, previously to 1821-22,
is in the 15th paragraph of the letter of Mr. Harris of the
2nd August 1820 (w). It is not quite clear when that survey
took place. He describes it as merely " a partial field sur-
vey." Assuming it to have been the survey spoken of in
Munro's letter of the 4th January 1800 to the Ta.hsil.dar tE),
we a.re of opinion that it must have been made simply for
the purpose of fixing the land revenue in Ankola for that
year (Fusli 1209), and that Munro's promise not to increase
the assessment meant that he would not augment it for that
particular year. More than this we think he had neither
the power nor the intention to promise.
Another document relied upon for the plaintiff was Ex-

hibit F, which is an alleged copy of a Kowl (Kaul), the
(v) Exhibit A, p. 3. (10) Printed Books, Vol, III., p. 16.
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BO)(BAY HIGH COUllT REPORTS, 117
original of which is, by a memorandum on the same Exhibit 1875.
(F), asserted to have been signed by Munro. This Exhibit VvAKUN'l'A ---
Fis said to have been found in the Tahsildar's Cutcherry, BA!,UJI
but there is not any proof that it is an authentic copy of any GovERNMENT
. . 1 was ever issue
. . I, or t h at sue h ongma
or1gma . d to t h e pu bl"1c. OF BoHBAY,
The style of it is unlike that of Munro as will be seen by Jud1ment.
comparing it with plaintiff's Exhibit H, which is in pa1·i
materia, and is authentic, bearing, as is admitted, Munro's
signature. In Exhibit H we find nothing as to the
villainy of Tippoo's Government, as there is in Exhibit F.
The memorandum upon Exhibit F contains a further state-
ment that the original was forwarded with a report on the
22nd March, Fusli 1236, A. D. 1827, under order No. 224 of
Mr. Malcolm Lewin, Assistant Sub-Collector. Exhibit Fis
as follows :-·
"Copy of Munro Saheb's ·Kaul (or writing of assur-
ance)" (x) "A Kaulnama (or writing of assurance) to the
address of the subjects (or tenants) i.e. [Riaya] a.nd persons
free to stay or depart [Khooshbash] of the 'l'aluka of Ankola,
&c., as follows:-
" Under the late Government of Tippoo, in consequence of
all [ manner of] villainy, and the Rayuts having fled away
[or ·absconded], the whole of the lands have been lying
waste. Therefore, with regard to the cultivation of the
lands in future, a message for the assurance of the Rayuts is
given as follows :-
" Should any Rayuts cultivate lands, the levying in future
of more than [ what was levied as] the sum of the ancient
assessment, as well as [ what was levied aa] Albhat under the
late Government should be deferred. . Should any one cul-
tivate lands, the settlement of the revenue [Jamabandi] will
...
be made with all indulgence (or kindness) as may be proper
according to (the yield of) the produce, in this way :
(namely) at one-fourth [the assessment] for the first year, half ·
for the second year, three-fourths for the third year, and
(.c) For th.ia E.xhibit, see Printed Book.a, Vol, 11., p. 2.
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118 BOXBAY B'IGH COURT BBPOKTB,
1876. the full [assessment] for the fourth year. Wherefore the
VnxuNTA people, (who are) the R&yuta, having come, should cultivate
BAPU.11
o. l, _,,_,:j
their lands. This will not be CI.LCOUfSvu
0
by t he Sarkar. The
Gov&allllur date the 26th of March in the Christian year 1800."
OFBoKB.I.Y. .
J~.
Memorandum on a.hove Exhibit.
" There is on the original the English writing of Monro
Saheb."
"The original was forwarded with a. report (on) the 22nd
of March in the Fusli year 1236, A.D. 1827, under order
No. 224 of Mr. Malcolm Lewin, A : (ie., a.ddition&l) Sub-
Collector."
It will be observed that the date of Exhibit F is the
26th March 1800, whereas the date of Exhibit H (y) is the
following day, the 27th Ma.rch 1800. The correspondence
relating to the forwarding in 1827 to Mr. Malcolm Lewin of
a. Ka.ulnama is a.t p. 403 of Vol. II. of the Printed Books mark-
ed G. In that correspondence the Ka.ulnama. is simply describ-
ed as granted by Munro A.D. 1800. Neither the month nor
day of the month on which it bore date is given. The cor-
respondence shows that the original Kaulna.ma. was for-
warded to Mr. Lewin, and was returned by him, and re-
placed in the Da.ftar at the- Ta.hsilda.r's Cutcherry at Ankola.
on the 3rd April 1827. No original, identica.1 with F or
dated on the 26th March 1800, has been found in that Cut-
cherry, but Exhibit H, (which is a Ka.ulna.ma bearing date
on the 27th March 1800, and, like F, relates to waste or
deserted lands only,) is produced from the DaftM of that
Cut-0herry, and we believe that it must have been the Ka.ul-
na.ma forwarded to and returned by Mr. Lewin. ·It is un-
necessary to go so far as to say that Exhibit F has been
,,. fabricated for the purpose of the present litigation ; it is suf-
ficient to say that its genuineness is wholly unproved. It
wears very much the aspect of a clumsy paraphrase or sum·
mary, from memory, of Exhibit H, probably made by a.
(y) Printed Books, VoL II., pp. 3, 4, and 5.
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BODAY DIOR COURT DPOBTI. 119
kark{m on the occasion of the despatching of Exhibit H 1875.
to Mr. Lewin, and intended to be kept in the Da.ftar as a VYA~
memorial of Exhibit H. B.u,rJ1

"·
GOVER!IIIENT
Even, however, if we asmme F to be a correct copy of an °• BoJ1BAY.
original Ka.ulna.ma, signed by Munro, it does not aid the Jwdg,nen,.
plaintiff's case. 1st. Because it relates only to lands which
were waste or deserted A.D. 1800, and the plaintiff's vargs
are not proved to be of that description ; and, 2ndly. Because
it does not contain any pledge that the revenue shall not be
eventually raised beyond the former aeseSBment. It merely
states that any such augmentation should be '' deferred/'
Exhibit H, which has also been relied on for the plaintiff

as fixing a maximum of assessment, relates only to lands
which were waste or deserted in the year 1800. The firsi
part of it is appli~ble to such landa in the Panchmahals in
Ankola. The 2nd part to similar lands in " Mirjan and other
places" in Ankola. Mirjan, though in Ankola, is not in
the Panchmahals, where the plaintiff's vargs are situated. b
is worthy of special remark that Munro, in Exhibit H,
directs that the waste or deserted lands should be offered in
the first instance to the original proprietors (Moolkars, i.e.,
Mulgars or Mulavargdars) and,if they were not forthcoming,
to such persons as might apply for the lands, and that if the
original Mulgars, within a twelvemonth, repaid to the suc-
cessful applicants the expenses of cultivation and one year,s
assessment, the former might recover the lands from the
latter, but otherwise the latter should be confirmed in their
holdings. This was a very great curtailment of the alleg-
ed right of the Mulgars to recover their mula•vargs after
any lapse of time.
In his report of the 31st Ma.y 1800 (para. 3.) Munro thus
describes the difficulties against which he had to contend in
making his settlement of the revenue for the Fusli year
1209 (z) :-
(z) Exhibit A, pp. 7, 8.
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120 BOllBAT utan COURT RIPORT8.
1875. "Previous to the conquest of Kanara by Hyder, all laoda

Vl'AKUNTA were private property, the rents 1Vere fixed (a) and moderate;
BA:.uJI but the Amildars of Hyder and Tippoo laid on one assess--
GovERNMENT ment after another till at last rents were as high as in
OJI' BoM:BAY, '
Mysore. The inhabitants, anxious to recover what they
Jt.Ulgm,ent. had lost, had frequently been in a state of partial insurrec-
tion, and had frequently been severely punished. The prin-
cipal men among them, however, never lost sight of their
object; they kept up a general correspondence from one end
of the province to the other by means of confidential peo-
ple, who were maintained by private contributions among
themselves. They made an attempt, on every change of a
Dewan or Asoph, to gain their point, and they had so far
succeeded in 1796 as to obtain a nominal remission of about
twenty per cent, which· was paid the first year as a bribe to
the officers of Government, and went the following two years
partly to the revenue servants and partly to the inhabitants,
especially the higher classes who least wanted it. They
thought the transfer of the country to the Company a
favourable opportunity of securing what they had so reoont-
ly gained, and what they could only have expected to hold
by large and continual payments to the officers of revenue.
With this view, therefore, wherever I went they sent me in
a paper, a kind of bill of rights, stating this deduction as
the only preliminary. on which they could agree to come to
any discussion at all of their settlements. I, of e~urse,
refused to adniit any previons stipulati-Ons. I answered
them that the revenue must first be brought back to its
former standard, and that then whatever appeared oppres,.
sive should be remitted. Finding that, after several weeks
wasted in messages, I would not give up, they at last came
m. The other districts followed their example, and, after
the fall of, J umalabad in the beginning of October, the
(a) We have already pointed out that Munro's own historical narrative
of the Revenue is inconsistent with this assertion, if the won! " fixed" were
nse,l by him to indicate that the rents were invariable. He could not, how,
ever, have meant that, and must have used the expresaion iu a modified
1en11e.
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country being forced from the enemy, the ryots made very 1875.
little further oppositi0n to the settlements. Those of Kanara. VYAKUNu
BAPUJI
were finished in January, and the Ja.mabandi might have v.
been forwarded to you in February, had not the placing GonaNJRNT
011 BOMBAY.
Soonda under my charge made it necessary to wait for the
settlement of that province, which, from its desolate state J~nt.
and from the disorders to which it had long been exposed,
required a. much longer time in proportion to its rent than
Kane.re.."
In the same report Munro strongly inculcates the ad.van.
rages of moderation in the assessment of land. When (he
says) the land revenue re is fixed and light, the farmer sees
that he will reap the reward of his own industry ; the cheer-
ful prospect of improving his situ~tion animates his labours,
and ~na.bles him to replace in a short time the losses he may
sustain from adverse sea.sons, the devastations of war, and
other accidents" (b). In pa.ra. 33 ho continues thus : -
~, Having thus explained at some length the ancient and
present state of Kanara a.nd Soonda, it only remains for me
to offer a few remarks respecting what ought to be the rate
of assessment, and the extent of farms, under a fixed settle-
ment ; but as the assessment is of much greater importance
than the division of the country, I shall confine ,myself ·en•
tirely to it in the present letter. It may be supposed that
without the aid of a previous survey, ·or of the experience
to be derived from a long residence, I cannot form any
correct judgment upon the subject. This may be true
with respect to the assessment of farms or villages in detail,
but there aro certain points from which sufficiently just con-
clusions may be drawn with rogard to wha.t ought to be the
total amount of the assessment. There ea~ be little doubt
that both Hyder and Tippoo generally raist,d rents as high
e.s they could go, and frequently beyond what •the lands
could bear. Their example, therefore, ought certainly not
to be our guide; but the assessment of tM current year (c)
(b) Exhibit A., para.19, p. 21, and ,u the concluaion of para. 32, p. 29.
(e) Fusli 1209, A.D. 1800.
B 117-p
rng,u,edbyGoogle
122 BOIIBAY HIGH COURT REPORTS.
1875. upon the sam·e quantity of land is nearly at1 high a8 «"11
VYAJWNTA By<ler's was at a.ny time, and is higher than Tippoo'a cdlt,:-
B.tPuJr
v. tio>M were, except dtwing a few years in the early part of hi,;
<::V:O!':~ reign, as appears from the Statement No. 2" (annexed to 1w
report). "But when it is considered how mnch the country
Jttdg,M1tt. has suffered, both in population and property, within the
last twenty years, I am perfectly convinced that the settle-
ment is now, in proportion of the resources of the inhabitant-$,
full as heavy as it ever was in any year, under either Hyder
or Tippoo Sultan. It might always be realised in times of
tranquillity; but without a reduction of it, land would never
become generally saleable, and it ought, therefore, to be
rejected as inconsistent with the liberal principles of the
Bengal system."
After premising that "it may very safely be assumed

that no Native Government is ever more indulgent in the
assessment. of its subjects than the British ought to be,"
he concludes that it may " be admitted that the whole of
the land in cultivation ought not to be assessed at a higher
rate -than it was under the Bednore Government at the time
of Ryder's invasion'' (d). After estimating the amount
of the reduction which it would be necessary to make from
the assessment of the then current year in order to bring
down the assessment to the Bednore rate at the time of
Ryder's invasion, he observes that "as Government have
determined, on the inti-oduction of the permanent Bystem,
to abolish all road customs and all duties whatever ou grain,
which will in a. certain degree have the same effect, thongh
not so directly, as a reduction of the land rent would have,
it will not be necessary to grant the whole of the proposed
abatement" of the land revenue (e). Bot as the abolition
of the custom duty on grain would not largely benefit
Honawa.r (Honore) and Ankola., which were then in a much
more desolate state than any other pa.rt of Kana.ra, he re.
commended that the land revenue there should be reduced
(d) Exhibit A., ~ M, p. 80. (e) Ibid., para. 85, p. 30.
- .....
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BOMBAY HIGH COURT REPORT&
• 123
to the Bednore assessment. As~ Kundapore, Bilsawur, Ba.r- 1875.

coor, Soonda., Balagh&t and Bilghi, he advised that the reduc- VvAKU1'TA
BAPUJI
tion should be to the Bednore assessment pl'U8 25 per cent. "·
of the extra assessment.a of Hyder, and that in all other GovBoER!iMBNT
OJ' lllBAY,
districts the reduction should be to the Bednore assessment
plus 80 per cent. of the extra. assessments_ of Hyder. He J ~
estimated the total loss of land revenue which would be
incurred in Kanara and Soonda by those reductions as a.bout
80,000 pagodas(/).
He then proceeded thus : -

" Whether the Board may think it expedient to adopt the
assessment here proposed, or any other, as the fou_ndation of
a permanent settlement, it is very clear that, whatever it
may be, it must be greatly below the existing one; and as
it is certainly desirable that the inhabitants should, as early
as possible, partake of the benefits of the sy:stem intended
to be introduced, no time ought to be lost in making some
reduction of the land rent and abolishing a considerable
part of the customs. This might be done by remitting in
the settlement of the ensuing year one-half of the proposed
reduction of the land rent, by abolishing all duties on rice
in Ankola and Honore, and all except one Pahadri Pagoda
per corgo in exportation by sea in the other districts of
Ka.nara, and by abolishing all duties on rice and one-fourth
of the duties on pepper in the districts above the Ghaut (g)."
Annexed to the report of the 81st May 1800 was a tabu-

lar statement, whereby Munro, displayed a.t one view the
changes which the land revanue of Kanara. and Soonda had
undergone from A.D. 1660 to .A.D. 1799-1800 (Fusli 1209).
That statement is not printed in Exhibit A. (the Govern-
ment compilation of 1866), bnt it does appear in Vol. II. of
the Fifth Parliamentary Report. -It shows the Rekah or
assessment in gross of that country, and, deducting thence
so much of that assessment as was not levia.ble by or avail-
(/) Exhibit A, para. 36, p. 31. (u) Ibid., para. 37, p. 32.
Digitized by Google ~
124 •
BOMBAY HIGH COtJBT BEPOKTS.
1876. able for Government, viz :. the usessment in respect of

Vvuu•u inams, waste lande, nasht, kulnaeht (h), &c., it e.xhibiw
B.t.PUJI
"· "'--
under the name of shi$l the btfowce of assessment actun.uy
--11
GovnBoNJHNT leviablef rom the landed proprietors in A.D. 1660, i.e., pago-
ow IUl.t.Y.
das 2,46,623. After setting forth in detail the additions
Judgmod. made to the shist by the Rajah of Bednore, amounting to
pagodas 27,043, and those made by the Rani of Bednore
amounting to pagodas 40,339, and the village taxes, it shows
that the shist stood in A.D. 1763 (the time of Hyder Ali's
conquest) at pagodas 3,20,827, thus exceeding the shist of
A.D. 1660 by pagodas 74,204, i.e., by nearly one-fourth-a
very substantial enhancement in fact, though notper.haps very
much when compared with what took place in other parts
of India during the same period of 103 years. It was, how-
ever, quite enough to' be fatal to the contention that the
shist was immutably fixed in A,D. 1660. The tabular state-
ment next shows the various additions to and deductions
from the land revenue subsequently to 1763 by Hyder A.Ii,
the general result of which was that the land revenue stood, at
the time of his death in December 1782, at pagoda.I! 5,33,202.
Subsequently are specified the additions made from 17132
to 1799 by Tippoo &bib, whereby he raised the land assess-
ment to pagodas 8,68,678, of which, however, Munro states
that pagodas 2,52,589 were never collected. Taking the bal-
ance, or land revenue actually levied, pagodas 6,16,089 as his
guide, and deducting thence, in respect of lands lying waste
at the time of the British conquest, pagodas 1,50,940, he
wrrived (in round numbers) at pagodas 4,65,149 as the assess-
ment which he imposed upon Kanara and Soonda in Fusli
1209 (A.D. 1799-1800), whereof pagodas 2,84,604 were shiat
and pagodas 1,80,~45 (including Rs. 10,565 village taxes)
were sht1mil or extra assessment.
His next report to the Board of Revenue was dated from

Kunda.pore on the 28th June 1800, and beyond the allu-
sion, with which it opened, to the intention of Government
" on the introduction of a permanent system" to abolish
(,\) Vide uote (i), 1,qn-a, p. 82.
...
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BOKBAY HIGH COURT &SPORTS. 125
road customs and all duties of every description upon grain, _ _
187_5._
is not material in this suit (i). VYAKUNTA
BAPU.Jl
The Board of Revenue, under cover of a letter of the 28th OOVJ:RNM'&tff
"·
August 1800 (;) forwarded Munro's reports of the 31st or BoJOU.Y,
May and 28th June 1800 to the Governor (Lord Clive) in ./""1,me,14
Council of Madras. The Board of Revenue in their letter
said :-" We are not prepared to enter into a consideration
of Major Munro's suggestions for reducing the land as-
sessment of the districts in the proportions he has pointed
out, ~t appearing to us on examination of the statement (k),
and the apparent inequalities that would subsist by their
adoption, to require further investigation and elucidation ;
a delay which is of the less consequence, 88 the relief which
we shall propose by the abolition and reduction of the heavy
duties will operate in a great measure as a diPeCt reduction of
land tax, and from its effects better enable the collector to
j~dge what further relief may be necessary'' (l).
They then proceeded to recommend even a more extensive
abolition of duties and customs than suggested by Munro.
'fhey also advised that nothing further should be under-
taken " in regard to making a general survey of the coun-
try until that of Barcoor is completed," when Government
would "be better able to judge of the necessity and advan-
tages of continuing it by the infermation derived therefrom."
The reply of the Government of Madras (m) dated 20th
September 1800 is a document of great importance. It
highly extols the ability of Major Munro (n) as displayed in
his reports. His information Government thought "suffici-
ently authentic to lay the foundations of permanent improve-
ment,'' and observed "with particular satisfaction that the
(i) Exhibit A, p. 33, (J1 Exhibit B., Vol. III., Printed Boob, p. 205,
(k) Annexed to Hunro'e report of the Slet May 1800.
(l) Ibid., p, 206, and - to the 1NUDe e!ect p. 208.
(m) 'Exhibit C., Printed Boob, VoL IIL, p. 209.
(n) Ibid., paragrapba 1 and 20, pp. 209, 212.
Digitized by Google
1875. proprietary rights in the lands of Kanara have been derived

Vyu-;;;;; from so remote a period, and that the existing knowledge
BA:,uJI and estimation of the value of these rights among the des-
Gov.nBoNKBNT cendants of the original proprietors indicate the easy means
or KBAY,
of introducing a permanent system of revenue and judica-
Jwlgr,w,14. ture." The letter then proceeds thus : -
" Considering the antiquity of the Rekah, and the affec-

tion with which it appears to have been cherished by the
people of Ka.nara, we are disposed to think that, if the sub-
sequent deductions and extra.ordinary assessment have an
equal proportion to that original standard, the materials we
possess would afford us the immediate means of adopting a
general principle on which to fix the settlement of the land
revenue; but on a minute observation of your" (the Board
of Revenue's) "objections, founded on the inequality of the
proportions, we concur in your opinion that a further in-
vestigation of the causes of that disproportion is indispens-
able to the formation of a final settlement" (o).
While admitting that inequalities, " produced by local
causes of abundance or sterility, facility or difficulty of sale,"
must always exist in the assessment of lands, the Govern-
ment of Madras, after noticing in some detail the great ine-
qualities which disclosed themselves in Munro's assessment
for Fusli 1209, remarked that" it is difficult to conceive
that these disproportions arise from the local ea.uses above
stated. And as the effects to be produced on the public
revenue of Ka.nara by a decision of this point are of very
considerable extent, we are desirous that the subject may
be referred to the further inquiry and serious consideration
of the Collector" (p). " We think this caution the more neces-
sary, beca.nse a reduction to the amount of 1,50,000 pagodas
(q) has already been made in the current revenue from the
(o) Exhibit C., Printed Books, Vol IIL, para. S, p. 209.
(p) Ibid, para. 4 :-" From the groat inequality of the land-tas in Kanara
it appMn that some eetal8 sell aa low aa one and others ae high u thirty-
ave year,' purchue." Rev. Sol., Vol. I., p. 899, pr.ra. 63.
(2) Ibid, para. 5.
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B011'.BAT HIGH COURT REPORTS. 127
assessment la.id on the provinces of Ka.na.ra. and Soonda by 1875.

the late Tippoo Sultan, and although that assessment may VuKu;,;;
justly be considered to have exceeded the productive powers BA:uJI
of the country, the punctual discharge ~f the remainder is GovBoBR~ll&NT
01' llBAY,
no indecisive proof of the relief which the people have de-
rived from the change of Government" (r). After observing Judgmfflt,
that the Board of Revenue confined their recommendation
to the abolition of the export duty on grain and to a suspen-
sion of the internal duties, the Government of Madras, while
approving of that tecommendation, expressed its concurrence
with the Collector (Munro), that, having regard to the condi-
dition of Ka.nara. and Soonda at that time, further immediate
relief was necessary in the form of a remission of land rev-
enue in order to augment the industry of the landholders.
The letter of the Madras Government then continues thus :-
9. " Independently of the objections which we have al-
ready stated against a permanent remission of land rent, we
observe that the Collector, in recommending this measure,
co.n siders the original Shist, with the extra. assessment of the
Bednore Government, and thirty per cent. of the assessment
of Hyder Ali, to form a just standard for the land revenue.
But we remark that . Major Munro does not appear to have
included in his calculation the amount of inams, being
pagodas 1,43,886-12·20, deducted from the Rekah. Although
this amount did not constitute any part of the public revenue
under the Hindu Government, it formed a part of the aggre-
gate resources of the province ; the particular grounds on
which these inams. were granted have not been explained by
the Collector ; but as a considerable deduction was made in
forming the Shist on account of waste lands and other causes
affecting the resources of the country, it may justly be pre-
sumed that the inams were granted for services performed, or
other objects of a personal nature. The inums having been
entirely resumed by the House of Hyder Ali, the original
(r) 1 Pagoda or Hoon ~ 4 Rupeea. 10 Phalama ... 1 Hoon.

16 KanarOIO Annu • 1 Phalam.
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128 130JIBAY HIGH COURT .REPORTS,
1875. grounds on which they were granted have been subverted,

VYA.;;;;;:;; a.nd the Company ha.ring s~cceeded to the right actually
B"!.u~ exercised by Tippoo Sultan, it ca.nnot be incumbent on them
GovnBoNXKNT to revert to the original institution of those grant.a."
01' IUl41r,
10. "It is probable. that ma.ny of those in!ms were be-
Jwlgmmt. stowed on religious institutions, a.nd that the descendants
of the first grantees possess the mea.ns of establishing their
claims. In these cases the Governor in Council will be
ready to give the most liberal consideration to the nature of
such claims; but in a.11 other respects it is -manifest that the
inams have eschea.ted to the State, and ought to be included
in the rolls of Malguzari lands.''
11. " The a.mount of the inams deducted from the Rekah
being greater tha.n the subsequent extra. additions made by
the Bednore Government, and the 30 per cent. of Hyder
Ali's assessment, proposed to be retained by the Collector, it
follows that the aaseeamtmt now propoaeil by Major Munro
oannot be considered an adequatt, revenue for Kanara, wit1t
'reference to the principles of ths Rekak. But from the
information a.nd reasoning of the Collector, it is evident that
he calculates the assessment recommended by him on the
present actual productive powers of the country, and, there-
fore, tho aggregate a.mount may~ considered to bear a jnst
proportion to those powers. Und<J'I" ths circumstance.a, hou:-
ever, already stated, the principle of adopting the 81,ist, the
Bednore asse,ement, and the 30 per cent. of Hyder .Ali
as the found,ati-O'n of the permanent revenue, ought to be re-
ceived with caution, because a.s the existing stock must,
according to Major Munro, be inadeq-g.ate to the purposes or
the whole province, it can neit.11er be nece88ary nor ezpediem
"that the resumable ins.ms, and the dieproportiO'Tlate <U8U8·
ment ariaing from general impoyerialtment should be finally
eul,udedfrom the available resources of thiJ Government; for
if the present stock is unequal to the whole agriculture of the
province, this deprivation could a.dd nothing to the reso11J'C('8
of the landlords; and if a portion of the lands muat lie
waste for want of stock and inhabitants, the right of the
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BOJIBAY HIGH COUBT BBP0IT8, 129
Government should be · reserved for the eventual retarn of 1876,
population and prosperity." VY.ilt1n4
Buv.11
12. "To accelerate those happy events, the demands of 11.
the State must be regulat.ed by the principles described in °:~

our instructions to you of the 2nd June last, and the tempo-
rary assessment of Kanara proportioned to its actual pro- .Tvclg,ilat, ·
duotive powers : we adopt, therefore, tho suggestion of the
Collector on this point, and authorize an immediate reduc-
tion of the land revenue assessed on the province for the
last Fus1i 1209."
13. " In granting this remission of the land rent we should
be disposed to wait for an explanation of the disproportion
obsel'Ved in the rates recommended by the Collector; but,
being convinced that immediate relief in this respect is
indispensably necessary, we can have no anxiety in trusting
the immediate application of it to the known prudence and
discretion. of Major Munro. We accordingly desire that
you will convey to him our authority and permission for
assessing the whole of the lands in cultivation at the rate11
recommended by him, viz., Ankola and Honore at the Bed-
nore assessment ; Kundapore, Bilsawer, Barcoor, Soond,
Baila Ghant, and Bilghi at the Bednore assessment, with 25
per cent of the additionaJ assessment of Hyder Ali; and all
the other districts at the Bednore assessment, with 30 per
cent of Hyder Ali's extra asseesment."
14. " In leaving, however, this latitude to the Collector,
we direct his particular attention to the disproportion in the.
rate of assessment recommended by him, and empower him
to make such alterations as subsequent information and
reflection may render expedient in his judgment. But it i.
oiw particular instruction, that this sacrifice tohich we have
made to the welfare of the people of Kana1·a shall not bs
converted into an inst-}'ument injurious to the public 'l'evenue
and the rights of the Oompany : we dfrect, therefo1·e, tlLat tl1e
amount of tliis deduction sJ,,all not be entered in tl1e accounts
of the province as a diminution of any of the e~isting prin-
ciples of assesemenf, but that tho 11Jh-0le aviottnt shall be
11117-q
Dig1tizedbyGoogle ....
130 BOKBAY HIGH COURT RIPOBTS.
1875. entered under a sepamte Ttead of ' tempMalr!f gratU,W)IU

be deducted from, the agg·regaf.e 06BUmu·nt of
Vvuu.ll'l'A Temission' to
BAPvR
"· Fusli 1209."
~~ The Government of Madras in the same letter assented to
the suggested relief to Kanara in respect of customs, roed
and inland duties, and, recurring to the proposed remission
of land revenue for Fusli 1209, said :-"We think it, however,
necessary to direct the particular attention of the Collect.or
to the extent of the present sacrifice, and if in the p ~
of his further inquiries, founded on the orders contained in
this letter, sufficient ground should be established for doubt-
ing the necessity or expediency of the proposed aggregate
remission, we ~ly on the judgment of Major Munro for
availing himself of this latitude to such an extent only as
may be requisite from local causes." Then, after warmly
commending Major Munro's ability and industry, the Gol"-
ernment concluded its letter by desiring that the surrey
should for the present be limited to the district of Barcoor.
It is manifest that, in that cautious letter, the Government
of Madras made no permanent concession whatever with
respect to land revenue, and did not authorise Munro to
take any such final step. On the contrary, it desired that
the remission in that respect, which it did empower Munro
to make, should be entered as temporary, and should not be
regarded as impairing in any respect " the existing princi~
pies of assessment"-namely those of Hyder Ali and Tippoo,
which the British found there on occupying the country in
1799. It is also evident that the great inequalities of assess-
ment, which existed in Ko.nara. and Soonda; had attracted
the attention of the Madras Government as a matter de-
manding further inquiry and consideration. We have not
discovered in the evidence in this suit any trace of an in-
tention on the part of that Government to abandon its right
to remove those inequalities.
On the 9th November 1800, Major Munro addressed to
the Madras Board of Revenue his promised letter (s) as to
(~) Exhibt A. p. 41.
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DOlIDA y ruon COURT REPORTS. 131
the extent to which a pei:manent settlement of the Ben· 1875.

gali type could be applied to Kana.ra.. He commenced, how- VvuuNT.&
ever, with what was evidently an allusion to the letter of the BAPU.JI
v.
Madras Government (Exhibit C). His estimate of reduc- GoVlUlNJIR!CBo
OF llBAY,
T
tion of the revenue of Kanara, proposed in bis letter of the

31st May 1800, was, he said, framed on t.he principle, " of Jvd,gmmt.
making it so ample as to provide for every possible contin-
gency." He then proceeded thus :-" By obtaining the
sanction of Government, I wa..:; secured against every chance
of a failure of revenue, and I was, at the same time, at liberty
to stop as. much short of tho reduction as might seem to be
advisable on further investigation. The letter, too, of the
Board, dated the 26th March 1800, which I had just received,
led me to suppose that I might be suddenly called upon to
make a permanent settlement, and induced me to propose a
greater reduction than I should otherwise have done, from
an apprehension that a failure in some quarter or another
might be the consequence of a higher assessment. It never
was my idea, however, that my settlement should have been
so permanent as to be exempted from all future change,
but only that it should have been so far fixed as not to be
liable to partial and frequent alterations, and that the
right should have been reserved for Government to avail
itself of the increasing resources of the country by adding
to the jarna a certain portion of the abatement at some
after period, when it might appear that it could bo
effer.ted without detriment to the country." A careful
etudy of that letter of the 9th November 1800 shows that
the first sixteen paragraphs contain Munro's views as to
what the assessment should be if a permanent settlement of
the Bengal kind were adopted, and that the residue of the
letter is a sketch of what he deemed to be the only scheme
by which, consistently with vested rights, any approxima•
tion to such a. settlement could be made as regarded the
division of Kanara and Soonda into estates on the
zemindari pattern, and that such approximation would
be but a. distant imitation of the original. As neither
the system of division then suggested by MUilt'o nor any
Digitized by Google
182 JIODAY moH COURT REPOJmJ.
1876. other perm&nent settlement system of the zemindari

Vr.urnxu species was at that time or has ever since been adopted
B.4Pun
... for Kanara or Soonda, it is unnecessary for us to enter
(}oVEJUBo:omrr into the details of Munro's scheme. It is doe to him t.o
01' IDIAY,
add that he put it forward merely because he believed that
Jwdptffll. Government had resolved upon introducing everywhere a
permanent settlement system of the Cornwallis type, and
that he was, as their servant, bound to indicate the only
practicable approach which could be made to it. His let-
ter, however, contains many strong arguments against such
settlements generally (t), and especially in Kanart, In the
17th paragraph ho says:-" In Kanara, where. almost all
land is private property derived from gift or purchase or
descent from an antiquity too remote to be traced, where
there arc more title-deeds, and where the validity of these
deeds have probably stood more trials than all the estates
in England, great proprietors cannot be established without
annihilating all the rights of the present landlords ; nor do
I believe that, by any arrangement for placing a number
of small estates under the collection of one head landlord,
any facility in the collection, or any security could be
obtained that may not bo obtained from letting the estates
remain as they now stand." The 22nd para.graph con•
eludes with what amounts t-0 a prediction of the general
collapse of permanent settlements of the zemindari clBSs,
and an assertion that the only species of permanent settle•
ment, which is sound in principle, is the rayutvari system,
of which he was subsequently the most earnest advocate.
He says :-" A11 systems of Indian revenue must, I imagine,
end in making a direct settlement with every independent
landholder, without the intervention of any superior lord, and
in making every one of them answerable for his own rent, and
the whole of the estates composittg a l'illage or d~trict an•
steerable for the fai.l1o·e of any pai·ticula1· estate therein by a
(t) His colTellpondence is full of condemnation of the Bengali ayatem of
permanent settlement, and of n<lvocncy of the rayutvari system.-Sre
especially Glelg'a ·life of Munro, Y ol. III., p. 340, 353, 381 1 421, 425, and
Bev. Sel., Vol. I , p. 94 et aeq, (his report of th1 16th Anguat 1807),
Digitized by Google
BODAY mGK COURT B1PORT8. 188
•eoond aueument." The liability thus imposed upon the 1875.
whole, in the event of a failure of a part, would have the Vu1tt1nA
effect occasionally of considerably enhancing the amount of B~u.1,
revenue payable by the individual landholder. Munro°:&:!;~
adhered to this part of his scheme in his letter of advice
to his immediate successors (para. 11 Exhibit, A, p. 69). ./fl4fl'IM'M.
Reverting to the first part of that letter, which relates to
assessment, we find that Munro's opinion was that, if a
permanent settlement of the Bengali kind were immediately
made, the remission of land revenue ought to be larger than
if that settlement were deferred ; that he had formed a.
more favourable opinion of the condition of the country
than he had entertained when writing his previous letter of
'May 31st in the same year ; and for this change of view he
gives his re&aons--amongst these were the vigour and quan-
tity of litigation with respect to land. While admitting
that a careful survey would be the best means of obtaining
information on which to base a satisfactory assessment, he
says that it would be very expensive, and that, "next to a
survey, the best way of gaining this knowledge would be
by keeping a register for some years of the rent and pro-
dnco of all lands that became the subject of litigation" (u),
and that " the average produce of such lands might be
taken as that of the whole district, or, at least, would not be
far from it after deducting Sarkar lands, which, from not
having an owner, are but poorly cultivated." This discus-
sion as to the best means of aniving at an assessment is
inconsistent with the supposition that Munro had already
irrevocably pledged Government to a fixed assessment. In
the sixth paragraph he treats of the extent of the landlords'
rent, which, in the causes relating to land which came be-
fore him, he found to be more frequently "above than
below 50 per cent of tho net produce ; in many instances it
was 60, 70 and 80 per cent." He had hop~ to have ob·
tained a detail of one thousand estates, and to have thus
M &e aJao 1 Gleig, 291, and aee tbia puuge criticiled by Mr. Blane in
Exhibit A. p. 173 and p. 210, and in Rev, S.L VoL I., p. 858.
~
..
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134 BOKBJ.Y HIGH COURT REPORTS.
1875, arrived at an average, but his limited sojourn in Kanara

VYAltUNT..\ prevented this. He conjectured from such opportunities as
BuuJI
t', he had " that the average rent of landlords is about 50 per
Govnmmrr cent of the net produce in all the districts below the gbauts,
01' BoMllAY,
except Mulki, Kandapur, and Bekul, where it may be from
Jwlgmmt,
30 to 40; and Aukola, and part of Honore, where it is some·
what less." Munro next (para. 7) observes that "anything
like equality of assessment can hardly be supposed to exist
throughout so extensive a tract of country. The clear rent
in many instances is as low as 15, and in many as high as 80
per cent of the net produce. The disparities arc oftener
owing to the different proportions of labour bestowed on the
land than to the assessment; many of these estates, which
now yield the smallest proportions of rent, were formerly
amongst the most productive." The exaction of nuzzur-
anas for the Sarkar, fines for pretended or trifling offences,
presents for an endless succession of Asophs and Amildars,
kists of arbitrary and uncertain amount, anticipation of them,
by particular landlords, against whom they were directed by
bribed Amilde.rs in order to coerce those landlords to sell
or mortgage their estates to the bribers, and, above all, gra-
tuitous services for the Sarkar, whereby the labourers of the
minor class of landholders were ta.ken from the vargs, are the
causes enumerated by Munro as causing those inequalities.
But in the 9th pa.re.graph he glanced at what subsequent Col-
lectors (u) (who had a longer experience of Kanara) perceived
much more distinctly than did Munro to be the main cause
{II)&. gr. Mr. Harria, Defendants' Exhibit No. 9, Printed Books., Vol.
III, pp. 54, 55. Letter of 14th Aug. 1821; para.a. 62, 63, 66, 67, 68. Hr. Ba.
bington, Defendant's Exhibit No. 19, Printed Books, Vol. III., p, 73. Letter
15th August 1826, para.a, 71 to 75 ; and most e11pecially Mr. Blane, in
paras. 14 to 16 of hie letter of 20th September 1848, Exhibit A, pp. 173
to 177, and pp. 247 to 256 where in the Appendix are Noe. 4, 5 1 6, 10, 11,
14, all being instances of such frauds inAnkola; and see Exhibit H. H., being
an undated Memorandum by the Collector's Head Sherietedar, Krishna
Rao, forwarded by Mr. Dickinson, Principal Collector of Kanara, to the
Board of Revenue, with hie letter of the JSth June 1830, and print.eel at
pp. 77 to 98 inclusive of Vol. III. of the Printed Books. The cau1e1 of the
numerous irregularities are very fully stated in para. 11 of the Memonn·
dum, Vol. IIL, p. 96. The writer evidently po888118ed an cnen,ive know·
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BOMBAY IDGH COURT REPORTS. 135
of those inequalities, viz., " the falsification of accounts" by 1875.
the landholders and other village officers. He admitted that VY.HtmTA
BAPVJI
the shist or rekrth " can no longer be implicitly followed v.
as a guide." He added : " It is safer to be directed by the ~~~:»~~T
present condition of the inhabitants and of the revenue
with a retrospect to what it has been for · the last twenty Juclome11 t.
years." He continued : "No guide is so sure as collection."
This was the principle of the sarasari system, upon which
the tliarav assessment of certain parts of Kanara, not
including Ankola, was afterwards based. To that nssess-
ment we presently shall briefly advert. Tho inapplica-
bility of such n. principle to Kanara forms the subject of an
able disquisition by Mr. Blane (w). In paragraph 8, Munro
assigned further reasons for his change of opinion as
to the condition of the rayuts and ·of their capability
to bear the assessment. He then stated his proposed
reductions, the object of which was to bring the assess-
ment to half the net income of the landlords. Those
reductions varied from 14 to 40 per cont; the smallest, 14
per cent, being in Mangalore, and the largest, 40 per cent,
being in Soopah and Bilghi, both of which are above the
ghauts. The reduction proposed for Ankola was 35 per
cent. Speaking of the country below the ghauts, he says :-
" Honore and Ankola have long been declining. They con-
tain more waste land and fewer proprietors than any of the
other districts, and, therefore, require a greater remission."
It ,,nust be ,·ecollected, as ws have already said, that all of
these 1·emissions were pro,posed by Munro on the ltypothesis
that a permanent settlement of the Ben'Jali type u:as to be made.
In paragraph 13 he said:-" The only reductions I have made
for the present year are by lowering the land rent 2} per
cent, and the export of customs on rice to two bahadri
pagodas per corge, and abolishing the inland duties on grain
J~ge of the revenue of Kanara and of the malvel'l!ations of the anbordi•
nato officers in the Revenue Department before 11nd during Britiah Rule.
See Exhibit I. I., para. 64., Printed Books, Vol. III., p. 234, 235.
(ID) See hia Report of 24th September 18'8, parM, 19 to 24, and 25;
Exhibit A, pp. 179, 181, et aeq.
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136 BOKBAY HIGH OOlTIT HPOBTS.
1875, a.nd cattle, sheep, &c. ; and these are all that &re required to
Vux11NTA serve the end of affording some immediate relief. The
'BAPl1JI
11• remaining reductions of customs may be deferred till the
GoVUN1&DTBo
OJ'
•
.IOl.6.Y.
Madras Custom Hegulations are introduced, and o>J land
reuenu~ (:11) till the permanent ay&tem i8 utabli.8hed.." Sub-
Judgmmt. sequently in the same para.graph he added :-" My chief ·
reason for remitting the 2! per cent was to convince the
landlords that our (y) demand is limited, and the~by tA>
encourage them to exert their whole means in improving
their estates to the utmost without any fear of a. new as-
aeesment." Whatsoever Munro's object may have been, we
must here repeat that the Government of Madras had mo8'
positively directed that the remission to be made by Munro
should be entered in the accounts as " temporary gratuitom
remission," and " not as a diminution of any of the exist.
ing principles of assessment."
In aeve:ral paragraphs of that letter of the 9th November
1800, Munro describes the lands in Kanara as " private pro-
p~rty ."
. In the same letter is the recommendation, quoted in a
previous part of this judgment, that the permanent settle-
ment of Ankola, Soonda, Bilghi, and indeed Ka.nan,, at
large, should be deferred for at least five years.
So far as there is any evidence before this Court, the
Government of Madras, on submission to it of Munro's
report of the 9th November 1800, and of the subsequeni
reports by his successors (dated, respectively, the 30th April
and 14th May 1801), together with the remarks of the Board
of Revenue upon those reports, appear to have done no more
than to express satisfaction at the favourable picture, drawn
by the Board, of the state of Kanara (z). The latter had stated
their belief that the assessment of Ka.Dara was " lighter than
(z) The word " revenue " seems by miatake to have been omitted ia
the printed copy ill Exhibit A, p. 53.
(y) The word ''our" aeema to have been by m.ietake O\Ditted in tht
printed copy in Exhibit A, p. 64.
(z) E&hibit A., p. 10, paru. 16, 17, of an historical lketch or Kaua by
the Board of Bennue on the 15th September 1831.
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that of any other district " in the Presidency of Madras, and 18715.
"that any permanent remission of its land rent would, there- VYAK~
fore, be unnecessary, and they hoped under efficient manage- BAPtrJI
ment that a gradual improvement in the revenue might aon!~KDT

be looked for from the cultivation of waste land. They also OP BollUIAY,
intimated an opinion that a reduction of the export duty on Judf!111tnl.

rice wa.~ not required."
The Madras Government, not a!1 yet having been informed
whether the Supreme Government would sanction a perma-
nent settlement of the Bengali species, was not in a position
to enable it to arrive at any decision upon the suggestions
of Munro.
One of these suggestions being, that a period of at least
five years should be permitted to elapse before any perma-
nent arrangement was ma.de, afforded an additional reason
for the reticence of the Madras Government.
The Board of Revenue requested Munro, immediat.ely after
his departure from Kanara. for the Ceded Districts, to address
to his successors. (a),-Mr. Read for North Kana.re., and Mr.
Ravenshaw for South Kanara.,-a letter of advice as to
the management of those countries. Accordingly, on the
9th December 1800, he wrote to them a letter from Ana-
goondy (b). That it was merely a letter of advice, and did
not treat them as necessarily bound to his policy, i"s manifest
from the preamble :-"Gentlemen,-Having been directed by
the Board to communicate to you whatever regulations I had
in view for the preservation and improvement of the re-
sources of Kanara., I must refer yon to my two reports (c),
which contain almost everything) have to say on the sub-
ject.
(a) Wrongly described by the Board of Revenue at page 143, of Exhibit
A, para. 21, as his Subordinate Collectors. They had been so, but had
become his 1ucceBBors before the 9th December 1800. North and South
Kanara were subsequently re-united under one Collector, and again sepa,
rated on the transfer of the former to the Presidency of Bombay.
(b). Exhibit A., p. 65. Anagoondy was a suburb of, and is situated on
the right bank;of the Tumbudhra, opposito to the ruined city of Vilianagar.
(Su Wilks' :fiistory, Myaore, Vol. I., p. 9, Madras reprint,)
(c) 31st May 1800, ~ November 1800,
B 117-r
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...
138 BOKBAY HIGH COUJI.T REPORTS.
1875. "2. Wltethm· y,m wish to ca1,:1 into e.ue1,Uon my idea,, or

VYAK~ to fomi bettei· plans founded on the 1·esult of lonaer ezperiew,
B~uJI and close investi,gation, it is essential that your cutcherry
GonaNJUNT should be so constituted as that it should facilitate, and not im, '
0' Bouu. pede, the accomplishment of your object." After discnssing
Judyment. the mode in which their office establishment should be con,
stituted, he continues thus:-" 3. In settling the land rent
for the cm'?'ent year, much caution should be observed in
imposing any new assessment on any land that pays the
Bednore rent and half of Ryder's addition, and no (d) more
should be laid on any land that pays the Bednore and three-
fourths of Hyder's assessment. No land that may be raised
in the current year to the Bednore and half of Hyder's addi-
tion sh<>uld ei•er be raised higher, because, though many
causes have contributed to sink the rent of land below the
Mysore Government assessment, none have had so greata
share as the quality of the land itself having been such as to
have rendered it incapable of continuing to pay the high
rates which had been forced from it during a few years, and
because the raising of rents from year to year discourages
improvement, and weakens the confidence of the owners in
the security of private property in land."
"4. Where land, either through fraud or favour, has of
late years been reduced below the Bednore alisessment;- it
ought to be raised to that assessment, tog~ther wito- half of
Hyder's addition, in the course of the present or following
year, after which no further increase should be demanded.
There may bA instances, but I imagine they are very rare,
where the land is so barren as to bo incapable of bearing
half of Hyder's addition, in which case we must be satisfied
with one-third, or perhaps one-fourth of it.. "
"5. The rent of land, however productive it may be,
ought never on any account to be raised higher than it has
been at some former period. Land, therefore, which may
have escaped partly, or even wholly, the Mysore additions.
ought not now to be burdened with them. The inequality
(cl) In the printeJ copy of .this letter in Exhibit A, p. 66, the wori
''no" baa been aocidtn!all7 omitted.
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thus occasioned is o_f no importance, for the rent of land 1876.
never can be so nicely adjusted as to correspond always with VYA1twr7
a certain proportion of the produce. It cannot perceptibly ·B~uJI
affect the revenue ; not one estate (vary) in a hundred has Govu1omrr
• , OJ' BolfJUY.
been exempted, and 1t should be considered, too, that many
of the present holders, in purchasing them from the former
proprietors, have given a high price in proportion as the
rent was low." So far he says he has been " speaking of
such land as is private property" ; and in the 6th paragraph
he proceeds to discuss the alienation of land the property of
the Sarkar, which had reverted to it in various ways :-" All
cult-ivated lands " of that cla:,s he recommends to be alien-
ated to individuals " in proprietary right, according to the
form which had this year been observed with respect to
lands thus transferred in Kandapur (e). Whenever the
tax is equal to the Bednore and half of the Mysore assess-
ment, the land should ho made over to the pre-occupier
without any additional taxation. When it is below, it should
be raised to that standard, and if the holder does not agreo
to this increase, it should be given to the highest bidder.
The conversion of Sarkari into private land should not be
hurried." In the 7th paragraph ho mentions that a form
of kaul for Jetting every description of waste land, with
variations suitable to the various districts, was to be found
in the kutcherries.
Leaving the subject of waste lands, he recurs to " private
property " :-
" 9. As so great a part of land in Kanara is private pro-
perty held at a fixed rent, your settlements in future will
require little time or labour, because nothing is to be done
e:ltcept to add to the Jama of the preceding year the extra
rent of a few estateg which may have been held at an under
rate, and the rent of such waste lan<ls as may have been
brought into cultivation. In Ankola. and Soonda, however,
more time will \Je required, because in those districts private
property in land not being so general as in !Canara, the cul-
tivators sometimes quit one village for another, and, as they
(e) In South Kanara.
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140 no11:e.AY HIGH COUR'l' REPORTS".
1876, are exposed to an arbitrary increase, they frequently claim

vns:uNTA a reduction of rent, when they have suffered losses. The
BAPu.n assessment of last year was so moderate that there can
V,
UoVBRNnNT hardly anywhere exist the smallest pretence for demanding
OP BoMBAY,
an abatement. Buddengoor (Buddengode) and some other
JvdgtMnt. villages, which have suffered from the ravages of Dhondia's
adherents, ought to be kept at a low rent for two years."
In the 11 th paragraph he refers to the survey then in

progress in Barcoor and the most material advantages to be
derived from it. After noticing that in the i-a1·ys there are
broken portions of estates, he says:-" The landholders
must be cautioned that, in the event of any failure of pay-
ment by the broken estate, and of there being no purchaser,
t~eir own lands will be assessed for the deficiency."
It seems doubtful whether any copy or extract of th11t

letter of ad vice was furnished to the Board of Revenue until
the year 1814 (j), and there is not any evidence as to its
having been laid before Government. Whether it was so
or not does not appear to be a matter of much importance ;
for, as already observed, it was no more than a letter of
advice stating the line of policy which Munro had intended
to follow if he had remained in Kanara, and which, without
the sanction of Government, he could not have made legally
binding. It is, however, most important to note, that neither
in his reports of the 31st May or 9th November 1800, nor in
the letter of advice to his successors, does he assert that he
had entered into any engagement with the Mulava1·yclcirs or
holders of private property generally, that their assessment
should never exceed tho /.:9,di11i bcl'i'.z (i. c., the totalamonntof
the shist and shamil) or any other special limit. With the Sar-
kari (Government) lands, refen·ed to in the 0th and 7th para-
graphs of that letter, we are not at present concerned, inas•
much as they, so far us they had been dealt with by Munro,
were apparently the subject of special grant by katd aanad
( f) See the letter of :Mr. Read of the 1st January 18141 para. 3, and
the Board's minµte of the 16th September 1831, para. 21, Ewbit A,
}Ip, 71,143.
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'B0!03At HIGH CO"CrRT REPORTS, 141
or mulpatta, and there a.re not, in this case, any lands which 1876,
the plaintiff alleges to have been so held.
----
VYAKtJlCTA
BAPUll
The preamble of Reg. XXV. of 1802 of the Madras Code OonaJ.OONT
11•
(passed on the 13th July 1802), to which we have already ol' BoKBAY.
referred on the question of the right of property in land, Jfl.Clgmtnl.
recites (inter alia) as follows:-" Whereas it is known to
the zemindars, mirasidars, rayuts, and cultivators of land
in the territories subject to the Government of Fort St.
George, that from the earliest until the present period of
time the public assessment of the land revenue has never
been fixed, but that, according to the practice of Asiatic
Governments, the assessment of the land revenue has
fluctuated without any fixed principles for the determi-
nation of the amount, and without any security to the
zemindars or other persons for the continua.nee of a mo-
derate land tax, etc." Admitting that the preamble is no
part of the enactment, and that a mere recital in an Act of
Parliament (and, therefore, in a Madras Regulation) "either
of fact or law is not conclusive, and that we are at liberty
to consider the fact ·or the law to be different from the state-
ment in the recital" (y), yet this recital, at the least, tends
to show that the Madras Government was under the impres-
sion that up to that time there ha<i not been in any part
of the Presidency of Madras ( which then included Kanara
and Soonda) a final and permanent assessment of the land
revenue. While aware that the provisions of the enacting
part of that Regulation, passed as it was on the same basis
as the Bengal Reg. I. of 1793, for the introduction of the
Cornwallis permanent settlement system into the Presidency
of Madras, have never been actually availed of for that pur•
pose in Kanara, and that it has been held by the Privy Conn•
cil (/,) that neither Reg. XXV. of 1802 nor Reg. XXXl of
1802 interferes with pre-existing rights of private property,
we venture to think that those circumstances do not detract
from the value of the recital a.s a statement of the belief
(g) Ste LorJ Campbell, C. J ., in Rty. v. llaughton, 1 El. and BJ. 501 1
516, anJ aee O Dom. H. C. Rep, 215.
(It) L. It. I, Ind. App, 282,300; ace a1ao Madrulieg. IV. of 1822.
Digitized by Google /
142 , D()l[BAY HIGH COURT REPORTS.
oftheGovernment of Madras that, up to the 13thJuly 1802,

IS75.
VY~iZ~ there had not been an unalterable assessment in any part
B~uJI of their Presidency.
0oVBRNKKNT
01' BoM.BAY. Not until after Munro bad left Kanara, and then with
Judqment, some hesitation, did the Court of Directors, in their despatch
to the Government of Madras of the 11th February 1801 (1'.),
authorise that Government to proceed to a permanent set-
tlement, in the Company's territories in that Presidency, of
the revenue (and as it would seem on the Bengal model),
"without any clause suspending its final effect till it should
receive our(the Court's) ultimate sanction" This concession,
however, was accompanied by the solemn admonition which
we now extract :-
"4. But, although we have thus invested you with full
power to proceed in the final execution of this permanent
arrangement, there are a: £ow precautions which we deem it
proper to recommend to your attention.
" 5. The first, which naturally presents itsolf, is that,
although we shall sincerely rejoice to see this measure finally
completed, we do not expect that you are to proceed in it
with a precipitancy inconsistent with full and accurate in-
vestigation. You will always bear in mind that you are
concluding a settlement, which good faith and the honour of
our Government require should be held for ever sacred and
inviolable. It is a measure on which is to rest for ever the
extent of our interest in the extensivo landed property
entrusted to the care of your Government; in proportion
therefore, as the decision you are to pass is permanent and
irrevocable, in the same proportion ought your previous in-
quiry to be accurate, and your information to be complete.
" 6. In the next place it behoves you to attend in a parti-

cular manner to the different situations of landed property,
not only of different province.a and districts, but of different
estates in the same province and district. You will certainly
err, if it is supposed to be necessary that whole provinces
(i) lle\". Sol, YoL I,, p. 601,
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BOXBAY HIGH COURT REPORTS, 14
and districts should be settled with at the same time. The 1875.
information respecting one estate in a district may be so VYAKUNTA
complete, while that of a neighbouring estate was so imper- BAPuJ1
"·
feet as to create great inequality if, to save further trouble of GoVJtRNMENT
investigation, it should be thought material to a.rra.nge with o:v BoxsAY.
both of them at the same time. From the nature of the Judgment.
business, the execution of it must be gradual and progressive ;
and not doubting that yon will give to the subject your
unremitting attention, we can only in geneml say, that we
shall be much more satisfied if you can report to ns that it
is well done, than that it is quickly done. It is impossible
to have perused the report of the Revenue Board, without
being satisfied that the detail of this business is of a most
extensive and complicated nature ; and, impressed witll that
reflection, it is equally impossible for ns to indulge any imw
. patience under the lengthened period to which the necessary
investigation may extend.".
The Court of Directors in the same despatch remarks that
" there is a material difference between the provinces in the
Carnatic and those of Bengal, where the measure of a per-
manent settlement was first taken into consideration. The
Bengal provinc~s were infinitely further advanced in the
habits of order and subordination to Government than most
places in the Carnatic, and certainly much more so than.in
the generality of Polygar provinces or the Northern Circars."
They then proceed to say that the establishment of complete
subordination is an essential preliminary to any "attempt to
introduce either a permanent system of land revenue or the
exercise of a regular judicial authority."
Of orders, given by the Governor General in Council
upon the 18th of June 1801, respecting the annexation· of
the provinces of Malabar and Kanara. to the Presidency of
Madras, there is not any copy in evidence; but the substance
of those orders (the issuing of which followed the despatch
of the Court of Directors of the 11th February 1801, where-
of we have been speaking,) may to a considerable extent be
collected from paragraphs 31 and 32 of a despatch of the
19th July 1804 (Rev. Sel., Vol. IV., p. 924) from the Gover•
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...
144, BOMBAY HIGH COURT 2EPORT8;
1876. nor General (then become Marquis Wellesley) in Council ro

vvu:tTNTA the Madras Oevernment. The despatch of the Governor
BAl't1JI General in Council of the 31st December 1799 (mentioned
"· ,upra, page 112, note l ), which related to provinces other
GoVKRNKENT
o.r BoKBAY, than Ma.la.bar and Kanara, is also refe~ed to in the despatch
Judgr,lent. of the 19th July 1804, of which paragraphs 31 and 32 are
as follow:-
"81. The instructions of the Governor General in Coun·
oil under date the 31st December 1799, and the orders <if
His Excellency in Council of the 18th June 1801 respecting
the annexatio~ of the provinces of Malabar and Kanara to
Fort St. George, state the principles conform.ably to which
the settlement of the land revenue of the districts, in
which no settlement has been formed, must be regulated.
Where the necessary inquiries for forming a permanent
settlement have not been completed, the settleme1;1.t should
be made for such term of years as local circumstances may
render advisable. In all cases it is desirable that the set·
tlements should be formed with the zemindars or other
description of landholders. Where no such descriptions of
persons exist, it would be proper to form the lands into
estates, and to dispose of them to persons who will attend
to their cultivation. These persons, as well as all other land-
holders, should be permitted freely to transfer their estate3
by sale, gift, or in any other manner. It can never be de-
sirable that the Government itself should act as the pro-
prietor of the lands, and should collect the rents from the
immediate cultivators of the soil. The rates of rent payable
for the different descriptions of produce must vary in every
district, and often in every village. Where any proprietors
may be found, they will generally collect those rents agree-
ably to the specific engagements which they may conclude
with their tenants, or according to the established usage of
· the country. If any differences should atise between the
landholders and the tenants regarding those engagements,
or usages, the Conrts of Judicature will form the proper
tribunals for deciding such differences. These questioru
are of private right, in which the executive authority can-
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BOKBAY HIGH COURT RllPORTS, 145
not interfere consistently with justice, policy, or its own 1876.
interests. The difficulties experienced in Ma.la.bar in regu• Vn1tuNTA
lating the assessment on the pepper•vinee and other articles Buu.n 1'.
of produce, and the evils which have resulted from the mea- GoVERNJBNT
_.l
suree 1MJ.Opted 1or
I!' • • proof O'f Boll.BAY.
t h at purpose, a£ford most oonvmcmg
of the bad policy of a system of revenue which requires JtAa(/1M1tt,
the executive authority of Government to aasume every·
where the character of a proprietor of land, and to interfere
in details which cannot be conducted in a manner favour-
able to the interests of the cultivator of the soil, and to the
extension of agriculture, excepting by the proprietors of the
lands."
" 32. The cultivation of the country must depend on the
landholders. In order to encourage them to employ those
exertions, and to conduct themselves with moderation and
justice towards the immediate cultivators of the soil, the
annual payments of the landholders to Government should
be :fixed upon a scale of equity and moderation, regulated
with reference to the receipts of Government from the landa
or estates of the different landholders for a period of years J
and all the a.uthoriti~s of every description employed in the
collection of the revenue, including the executive authority
of the Government itself, should be rendered amenable for
their acts to the control of the la.we, according to the rules
already established in those parts of the country to which
the new constitution bas been completely extended. The
early extension of these principles to the unsettled districts
will combine the interests of the State, as connected with
its revenues, with the welfare of every class of its subjects
concerned in the cultivation of the lands. It will rest with
your Lordship in Council to apply these principles to local
circumstances in Male.bar and other districts in which a
_permanent settlement has not been concluded."
These pa.sea.gee and the concluding portion of the 80th
paragraph (see note (;) in pp. 146 to 148 infra) render it
manifest that Lord Wellesley and his colleagues still adhered,
not only in June 1801 but down to July 1804", to a permanent
settlement of the zemindari species, if possible.; and that they
B lli'-1
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146 BODAY mo11 COURT RWPORTS.
1875. could not have supposed that a permanent settlement of an:,

VYAXUNTA kind had been made in Kanara, and deprecated precipitancy
BAPU.11
"· in making any final settlement (j).
GoVDlOOJIIT
or BoKBAY. (j) Some further particulars of the despatch of the 19th July 186'
will elucidate the 31st and 32nd paragraphs above extracted. The des-
patch commenced by the Governor General in Council removing the erro-
neous impreaion of the Madras Government that the ill8tructiona of the
former, of the 3lat December 1799, restricted the Madras Government frcm
establishing the new judicial department in any districts into which a
permanent settlement of land revenue had not been introduced, and
required the maintenance in thoee districts of the authority of the Board
of Revenue and Collectors in all matters civil and criminal. Lord W eDee-
ley'a Government, in clear and earnest terms, disclaimed any such reatrio-
tive intention, and eaid of the old system, which it eubeequently, in the
nme letter (para. 19), described u "confounding all the powera of the
Government in the person of a Collector of Revenue," that Hia Excellency
in Council wu " persuaded that the moat eeriou1 evile are to be appre-
hended from the partial continuance of that eystem, both with rNpeCt to
the revenuee of the country, its tranquillity, and the stability of the Bri-
tiah power" (para. 8). To poaible objections that the dutiN of the Col-
lectors would be limited to the ueeument and collection of the revenue1,
that their official acts would be 1ubject to the cogniz.ance of Couna of
J uetice, and that the Collectors might thue find their powera iuadequate to
the ucertainment of the just duee of Government ; and to their punctual
collection, it wu replied that the e:r.perience of Government in Bengal
afforded " eati1factory proof that such appniheneione are without founda-
tion" (pans. 12, 13), that "the l&Dle usages, which regulate the du• of
Government from the lands, aleo vest in it adequate powers for levying
those duee. Those powers extend to the sale of the crops or property, and
even to the attachment of the pel'IOne of defaulters of every description by
the most summary proceu. The new constitution leaveis to the Col.leoton
of the Revenue, in cuee in which a permanent 1ettlement hu not been
concluded, the full exercise of those powera to the extent reqneite for
realizing tbe public demands ; the Collectors, therefore, will poaa-. the
means of realizing the public dues, u far u the collection of them can be
ensured, by the legitimate e:r.erciae of regular power after the juai demmda
of Government shall have been eatiafi.ed or eecured (but not otherwiae).
Individuals who may conceive that they have been compelled to pay a eum
exceeding the amount due from them, will poAea the privilege, under the
new constitution, of suing the Government or the Collector in the Couna
of Judicature for the recovery of the e:r.oeee; the grant of thia privilege to
individuals will not enable them to withhold the dues of the State, bat
will merely protect them against unjust claim• or the Government, or ex-
tortion on the part of its officers. It would be an nnneceu&r7 occupation
of the time of your Lordlhip in Council to enter into a course of argument;
Jor the purpose of demonatrating that the intereete of the Government, u
relating to the public revenue and the obligations of the State towarcb i1ie
Digitized by Google
BOXBAY HIGH COU&T BIPORTS. 147
·We now come to the period at which the tide which had __ 187_6_._
run so strongly in favour of the zemindari permanent settle- BAPU,JJ
VYAKUNTA
ment system showed symptoms of a disposition to tarn.

"·
GOVJ:IU(JUNT
1nbjects, equally require that the executive authority and all itl ofticen OJ' BOlllBAY,
1hould be 1'81poneible to the laws for the due exercille of the exten.aive
powers neceuary for realizing the public revenue•• (para. 14); and again,
"an improved revenue, cheerfully paid and realized without the applica·
tion of military force, ia not to be expected from a 1ystem of adminiltra•
tion which affords no encouragement tlc>-augment their means of oontribn•
tion, and which relies for 1ncce1111 on the extent of the means entrueted to
the officers of Government for levying the large1t revenue which can be
obtained by the direct exercille of power" (para.. 17) ; and "were it polo
1ible for the Collecton of the Revenue to appropriate a sufficient portion
of their time to the adminilltration of jn1tice~ and to the maintenance of
the peace of the country, the nature of their dutie1 u oflicen of the rev-
enue diaqualifie1 them for the dillcharge of judicial function.a ; the people
cannot repose a firm confidence in the protection of the laws, while the
administration of the laws shall be entrusted to the oollecton of the rev-
enue, because the conduct of those ofticen~ and of the numerous native
agenta and aervantl acting under their authority., necaaa.riq form.a a prin-
cipal object of legal control " (para.. 11>),
In para. 25 it ii, aaid· :~" In the territoriea subject to your Lordahip'•
Government to which the new con.atitution hu not been extended, the
system of adminilltration is aimilar in ita g,,neral principles (however ame-
liorated in the execution by the characters of individual public ofticen) to
that which prevailed under the nati'll'e GovernmenfB under the moat
favourable exertions of individual talents ud integrity. Such a system
of Go•ernment must produce public and· private oppreuion and abuse ; it
provides no restraint upon the exercise of power sufticienfl to en.aure the
uniform. impartial, and general operation or the laws, and to inspire the
peeple with a.seµee or confidence and securit1 in the- ordinary conduct of
priT&te transaction.a, and. in the· undisturbed exercise of private rights
exempt from. those aalntary restraints, The public oftioen may pursue a
course of evil administration in many of the Bnbordinate department. of
the State without the knowledge of the Government ; and the Govern•
ment may continue ignorant of the abuse of its name and power until
private distress and public snfi'ering shall compel the people to combine
against the authority, whoee name and power have been perverted to the
purposes of vexation and oppression. In thia. condition, open resistance
affords to the people the eole mode of appeal to- the justice of the Govern-
ment : to that dreadful appeal the moet. peaceable~ industrious, and dutiful
people must resort, wherever the law• shall afford no regular organ to
convey the complaints to the ear of the 1overeign, &c."
The 29th para., in accordance with the foregoing neWB, directed the
Madras Government "without delay to establish the Zillah Courts ancl
the eourta of Appeal and Circuit, and to e.itend the authority of the
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148 BOKBAY HIGH COURT BUORTB.
1876. It does not appear that, as regards Kanara or Soonda, the

VYAKUNTA. Madras Government, previously to the receipt of the des-
B~n patch of the 21st July 1802, presently to be mentioned, hsd
GovnNDNT
OJ' BollBA.Y.
in aovwiRe
,1 •• -
availed itself of the permission, contained in the
despatch of the 11th February 1801, to make a permanent
J~nt. ~minda.ri settlement, either with or without a clause sus-
pending its final effect, until the ultimate sanction of the
Directors, or any other final arrangement as to either of
those countries. By the despatch of the 21st July 1802, the
Directors, so far as regarded the Male.bar provinces and
Kana.ra. (and these would include Soonda, which then formed
pa.rt of North Ka.na.ra.), and the Ceded Districts, revoked the
authority conferred upon the Madras Government to make a
permanent settlement without the previous sanction of the
Directors. The contents of the despatch of the 21st July
1802, and those of another important despatch of the 10th
April 1804, are, sufficiently for the purposes of this case,
extracted in the Court's despatch of the 16th December
Sudder Adawlut and Poujdari Adawlut throughout the Carnatic, 'Malabar,

Kanara, Tanjore, the temtoriee ceded to the Company by the Nizam, and
all the countries" then subject to the Madras Government.
The 30th para. waa aa followa :-" Under these ordeni the powers vested
in the Board of Revenue and the Collectora by the claUlell of the firat and
1econd Begulatio111 pueed by your Lordahip in Council in the year 1808,
will be aboliahed, and the authority of the Collector of the Revenue in the
newly acquired temtoriee will be limited to the aaseument and collection
of the revenue, under whatever plan thtt circ1U1111tancee of \he aeveraJ
district. may render advisable ; and thoee officers will exerciae the aame
powera, and be aubject to the same control of the lawa and of the Court. o(
Judicature, aa the Collectora of the Revenue in the district. in which the
new conatitutiou hu been established. The Collectora of the recently
acquired temtoriea will have full leisure to proaecute the inquiries which
may be necessary for forming a permanent aettlement of the land revenue,
and that arrangement may be postponed until the completion of thoee in·
quiriea and the state of the reapective districts ,hall render it advisable to
fix the amount of land revenue in perpetuity,"
The direction for the estahliahing of Zillah Courtl, contained in the 29"1
paragraph, waa carried into effect by Madras Regulation IL of 1806, which
also abrogated the judicial powen, of the Board of Revenue and of Col.
lector1 in diltricta where the land revenue bad not been permanent.Iy
fixed.
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BODAY HIGH COURT REPORTS. } 4,9
1812 at page 527 of the Revenue ~elections, Vol. I, as 1875.

follows : - VYAKUNTA.
BAPU.Jl
"·
"We here particularly allude to the instructions contain- GovnNMENT
ed in our revenue letters of the 21st July 1802, of the 10th oF BoMBAY.
April 1804, and of the 30th August 1809. In the former Judgmmt.
of these letters, after expressing our hope that it would
reach you before any considerable progress should have
been made in the actual conclusion of the permanent settle-
ment, and directing that, in such districts where it had not
been finally arranged, the measure should be suspended
until yon should have been able to ascertain whether every
possible degree of information had been obtained as to the
real value of their resources, we added :-' We at the same
time think it proper further to direct that a permanent
settlement of the revenue in the provinces of Male.bar and
Kana.re., and of the lands lately ceded by the Nizam, be not
concluded, until all the previous measures leading thereto
shall have been specifically reported to us, accompanied by
every possible information that can be procured upon the
subject.' These orders were repeated in our letter of the
10th April 1804, in the following paragraph :- ' From the
peculiar circumstances connected with the revenues of the
provinces of Male.bar.and Kanara, and of the districts ceded
by the Nizam, we have already directed that a permanent
settlement of the lands in those district~ bo not carried into
execution without our previous sanction, which direction
we now repeat. We much fear that the state of those coun-
tries, and the defective information which we at present
possess of their real resources, or what they would produce
under proper management, will not admit of a fair and
adequate settlement for some time to come.' "
Assuming, for the purpose of argument, that the perma-

nent settlement preeeni in the minds of the Directors when
writing these despatches of 1802 and 1804 was more espe-
cially one of the zemindari cla.es, it must be remembered
that the Directors still, should they eventually approve of
such a, settlement, retain to themselves the power to make
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150 IOIIBAT HIGH COUBT BIPOBT8.
1875. it, and there'by Tirtua11y prohibit any other final settlemal
-V-YA-x-un-A withont their sanction, .if such a settlement would be m·
BAPun compatible with • zemindari settlement.
"·
~:='= And in a despatch of the Directors, of the 18th Deoembe
1811 (k), to the Madras GoTernment,. is thls passage : -
I
"220. We obsel've that these leases" (not of lands in Ka- 1
na.ra or Soonde.) "a.re intended as preparatory to the conclosivll :

of permanent settlements. We desire it, however, to be Ull·
derstood by yon, that we are by no means anxious for thi
early adoption of that system i,n any part of ott,r urritoria
to which it ha& ,wt been hitlttwto ezt.e.ded. We have alway,
entertained a. full persuasion., and ha.Te uniformly pressed it
upon your minds, that before <my settlemett.u be forDl.ild
that a.re inte1tded fo1· p ~ , it is highly necessary
that the most correct knowledge, whid1 it is practiet.ble t.o
obtain, should be acquired respecting the actual state and
resources of the lands, their capacities of improvement, and
of the tenures and rights of individuals. Strong and deci-
sive as our opinion has invariably been on this point, it hu
received no small confirmation from the experience which,
we are sorry to say, has been recently afforded us of the
frequeut failure of assessments, formed on the principle w
which we allude, in our possessions 8Ubject to your imme-
diate authority; and we hereby think it proper to restntl
you from, concluding any settl.ement of a district in perr-
tuity, without having preVWU8ly received our q,ecific sanc-
tion for that pt1,rpose: nor shall we grant that sanction,
unless we a.re put in possession of every information neces-
sary to direct our judgment in a matter of such essentit.l
concern.'' The language of that despatch we should find
difficult of reconciliation with the supposition that it was
intended to include Zeminde.ri settlement only.
The Directors' despatch of the 16th December 1812
(which contained the extracts, already given, of their des-
patches of the 21st July 1802 and IOth.April 1804-) censured
the Government of Madras for granting, in the Cudda.pah
(k) I Rev, SeL, p. 492, para. 220.
..
;.
BODAY HIGH COURT BIPORTS, 151 '
Division of the Ceded Districts and the Northern and 1875.

Southern Divisions of Arcot and in Coimbatore, decennial VYAx;;:;-
leases at a fired rent determined with reference to the col- BAPu.n II.
lections of former years and the general capabilities and Govi:RNMBNT
resources of. t he VI"}}age, wit
• h a proviso
• that, 1"f a.pproved b y OJ' BoMBAY,
the Directors, that rent should, at the expiration of the ten J'Udgment.
years, become permanent. The fifth para.graph is impor-
tant:-" The other reason adduced by the Board (of Rev-
enue) for having ta.ken upon themselves to authorize the
decennial leases to be considered as permanent on the ex-
. piration of them, without any reference to the final approba-
tion of the Government at home, is that the orders from us
' tending,' a.a they express it, ' to prohibit the further exten-
sion of a permanent settlement without their authority,
related to the zemindari settlement, the extension of which
was not contemplated.' Tke directi(Jfl,8, however, which wo
lta1'e at different times conveyed to you, since the fir,t in-
troduction of ,ettl.ement, in perpetuity, again,t the ezten-
aion of such a'l'f'angements without our previous sanction,
will be found to hOAJe a clear and ei1:plicit reference, not to
the principl,e on which arrangements of that nature slwuld
be founded, but to the importance of deferring an ,malt.er-
abl,e adjustment of the public demand on the land, until
every necessary information should be obtained of it, value
and reaourcea, and of the rights of those connected with it;
and if any new arguments were wanting to convince us of
the necessity there was for furnishing you with those in-
structions, they would be supplied by the facts. and conclu-
sions contained in your despatch now under reply, upon
which we shall have further occasion to remark in t~ letter.
The Board of Revenue are not less incorrect wheu they
describe onr orders on the above subject· as tending to pro-
hibit the formation of permanent settlements without our
aanction previously obtained; for not only did those orders
from the first, which we transmitted to yon on the 11th
February 1801, evince a disposition more and more adverse
to any early proceedings for extending the me11Sure further
than it had hitherto gone, bnt, in several instances, they
positively restricted you from so doing." Then the Direo-
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...
1!>2 JIOXBAY mas COURT UPORT9.
1875. tors referred to the despatches, already mentioned, of the

~~ 21 st July 1802, and of the 10th April 1804, and also to a
BA!.0' 1 despatch of the 30th August 1809, renewing their prohibi-
tion of any permanent settlement, without their previoas
Govo1noNT
0'
sanct10n,
BolDlAY,
• • t he Ceded D.istncts
m · and m· the Northem n·1V1- ·
J ~ . sion of Coimbatore. The 12th paragraph of this despatch
of the 16th December 1812, contains an extract of consider-
able importance from a previous despatch of the Directon.
They say :-" In our revenue letter of the 24th Angust 1804",
we observed that ' in forming the materials at a di.slant
perwd, for the permanent settlement of the lands of Malabar
and Kanara, great caution should be used lest you interfere
with rights which had hitherto been considered inviolable,
or disturb those ancient boundaries or landmarks which at
that time had determined the extent of private property,
and by which the proprietors of land have been governed
;from time immemorial.' ,, If we are to read the phrase
" permanent settlement, ,, in that passage, as bearing the
meaning which the Directors, as we have already noticed,
in 1812, said it was intended t.o bear in their previous
despatches, namely " unalterable adjustment of the public
demand on the land," and not merely a permanent settle-
ment of the zemindari kind, it is very clear that not only
were they on the 24th August 1804 nnaware that any
permanent fixing of the land revenue or land rent had been
made in Ma1abar or Kanara, but their intention was that, if
any such fixing did take place at all, it should be at a dis-
tant period. 4 Even, however, assuming that they, in writing
that passage, had in their minds a permanent settlement of
the zemindari type, if yet they were aware that they had
been ir'i-evocably
•
pledged by Munro and the Madras. Govern-
ment to an immutat,le rent payable to Government either iu
Kanara or Malabar, we should look for some reference by
.. them to it, forming, as it would, a serious difficulty in arrang-
ing any settlement of the Cornwallis class. They enjoin great
caution lest the boundaries of private estates should be inter-
fered with; and we should certainly expect that..i( they believed
that any pledge as to the rate of rent had been given, either
with or without authority, they would not have then pa.,ci
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BOlfBAT HIGH COURT Rl:PORTS. 158
it over in silence. In the same pa.ra.graph (12) of the des- 1875.

patch of the 16th December 1812 (l), they continue thus:- V n ~
urn our revenue letter, also, of the 6th November 1805, B•:.un
when referring to your request to be permitted to settle the GoYERBoNMBNT
. or KBAY.
la.nde of Kanara in perpetuity, and when noticing the stnct
regard due to the proprietary rights which individuals in Jvdgmffll.
Kanara enjoyed in the soil, we took occasion to state that
not only ought this kind of right, when it was proved to
exist, to remain undisturbed, but the perpetual settlement
ought not, for th.. sake of official or revenue divisions of
the country, to place the smaller estates under any kind of
subordination to the greater, or at all affect the boundaries
by which property had hitherto been separated and distin-
guished.
" 18. We recite these passages, because they show that
as soon BB we were apprised by you that individual proprie-
tary rights existed in any portion of the territories under
your Government, we were most anxiously desirous that
they should be respected and maintained. You have now
recognised the rights of proprietorship to be possessed by
Mirasidars ; and yet, speaking of those in Tanjore, you say
that ' where they may r~fuse to accede to the settlement of
the villages by either of the modes above set forth, agr~
ments shall be entered int,o with the Parak:udis, &c.,' thus
proposing to act, not only in opposition to the principle of
the 233rd paragraph of your letter of the 29th February
1812, already quoted, by which you had professed your in-
tention of being guided, but in disregard of tiie sentiments
we had so pointedly conveyed to you in August 1804 and
November 1805.
" 14. These considerations operate ~o powerfully -on our
minds, that, even if we could devise the means of removing
the othor objections which we feel against the m!85ure you
have submitted for a permanent settlement, we should most
reluctantly sanction its adoption; and we do, therefore, most
anxiously hope that the authority of Government may not
have been extensively committed by you upon it."
(l). Rev. Sul, Vol. I ., p. 529.
D 117-t
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lM BOKB.&Y HJOII COURT RKPO&TS.
1875. In paragraphs 26 to 28 (inelaaive) of the same despakh

VYA1tun.& the Directors make further observations upon Ke.nan,
BAPCJI
11• whence we gather that they regarded its land tenure as
~&.:!.~ rayutvari in character, and its rayuts as having a proprietary
right in the soil. The minute of Lord William Bentinck of
J,ulpol. the 28th November 1836 is quoted with approbation, and
to the special report, subsequently made at his desire by
Mr. Thackeray in 1807, they refer in a similar spirit. Lord
W:illiam Bentinck speaks of the prosperity of Kanara, which
he attributes to '' the tenure of landed pl'Operty peculiar to
the province," and to " the moderation with which the right.a
of the Sarkar to a proportion of the land revenue have been
exercised." He also speaks of the rayutvari settlement
and of its great advantages " as an annual settlement.."
He says:-" Those adTantages consisted in the equal dis-
tribution and the defined amount of the land tax, and in
the security afforded to the poor against extra assessment
from bead inhabitants." We have, however, seen that at
the time of the British conquest of Kanara the land tax
had undergone frequent enhancement, and experience soon
disclosed that the supposed equality of distribution of that
tax was a flagrant mistake. The great and unjust ine-
quality in the incidence of taxation became the theme of
successive Collectors, and was apparently produced by the
fraudu1ent conduct of subordinate revenue officers such aa
shanbogues, karnams, &c., during many years. Lord William
Bentinck observed that he was "astonished,, by the '' close
resemblance between the actual state of property in Kana.ra
and the proposed pennanency of the rayntvari settlement.
Among other peculiarities, the greater part of the estates,
though fully assessed, pay less than ten pagodas per annum
to the Sarkar." He c;ontinued: '' Kanara thus became the
great 1an¥1ark by which I hope to trace out those princi-
ple, and regu1ations which might be applicab)e to the un-
settled districts when the permanent tenures a.re to be in-
troduced. I have reason to bc1ieve, though I cannot speak
with any positive certainty, that the same tenures as in
Ka.nara existed originally through every pnrt of the Penin-
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BOK.BAT 1110& COURT REPORTS. 155
aula. In other part.a the bo11ndariee of individual rights 1875.
· have been trodden down by the oppression and avarice of Vu11:UNT•
despotic a11thority; but still there exists, in almost every Buun
"·
village, the distinction of Mirasi inhabitants or hereditary Oon1U01DT
ulti , h .
c vat ors. Now, t he hereditary ng t to cultivate certain
OFBolU.t.Y,
lands, and to reap the benefits of that cultivation, seems to ./vdg,n,ot4,

be nearly one and the same thing with the right in the land
called property." The remark of his Lordship as to the
proposed permanency of the rayutvari settlement being
similar to the aetaal state of Kanara would lead to the belief
that he supposed the land revenue in the latter to be, to a
certain extent, fixed; but his concluding sentence, in whicli
he compares the land tenures of Kanara with the Mirasi
tenure, ha8 the opposite tendency, fixity of assessment not
being one of the ingrediente of Mirasi tenure; and we have
previously observed that when Munro, the moat powerful
and persistent advocate of the rayutvari system, recom-
mended a. fixed rent, he did not appear to mean a rent un-
alterably fixed, but a rent not subject to the frequent fiue-
tuations ·of the assessment in many provinces..
Mr. Thackeray, in his report of tlte 4th August 1807 (m),

sa.id :--:-" The greater part of the lands of Kanara are private
property. The former and present state of private property
has been so amply discussed by Major Munro that it leavos
me little to say on the subject. Original inscriptions on
stone and copper prove the antiquity of this venerable in,-
stitution. They consist of grants of ancient princes to
pagodas, &c., granting the land-tax. derivable from certain
lands and villages; thus fil'a.nsferring the land-tax from the
treasury, to the individual grantee ; but the property in the
soil was not granted, because not possessed or claimed by
the prince ; when ho gave the absolute property in the soil:,
the eanad expressly mentions the previous purchase of the
right." Such ancient grants to temples engraved on copper,
&c., are not confined to ~nara. Many such have been
(111) Contained in the Appendix to the Fiftll ParliameDtary Report,

Vol II., p. 479 et aetJ., Madna reprint.
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156
18711. found in other parts of this Presidency (n), as well as elae-

Vv.u:unA where in India. Mr. Thackeray continues:-" Although black
B~~JJ books, papers, leaves, or even copper-plates, are oiu,n forged ;
GovBoBBl'IDNT yet these inscriptions, eo generally found, could not have been
OJ' .ll.BAY,
forged. They, therefore, are unquestionable evidence to the
Jwdg,M,&I. antiquity and validity of the institution. The black boob,
however, are very carious records; and as inscriptions, black
books, tradition, annual settlements, and revenue accounts,
all concur to show what the ancient land tu: 10a,-to ahow
that it was light and fixed, they show that the lands were
private property. The sana.da and inscriptions on atone and
copper are to be found in any part of Kanara ; in ever,
pagoda; they, together with the revenue accounts, the black
books, tradition, and the state of the country, afford undeni-
able proof of the antiquity of the institution. A complete
investigation of these ancient inscriptions would throw great
light on the former state of the country, perhaps of the
ancient history of India. The different princes of Bednore,
Vizianagar, and even Myeore, never seem to have questioned
the general rights of the people, though an arbitrary assess•
ment and individual acts of oppression may have rendered
soma private estates less valuable." Mr. Thackeray in•
stances the saleability of land in Kanara, its state of culti-
vation, and the attachment of the landholders to these hold-
ings, as so many proofs of their right of property. Written
muniments of title he regards as not essential to title, but
prescription he deems to be " the best of all titles ;'' and he
observes that "no person who has seen Kanara, or consi-
dered the subject, can doubt the antiquity aud validity of the
title of the Kanara landlords ; and any Government that
(n) Journal of the Bombay Branch of the Royal Aaia\io Society, No.
V ., April 1843, pp. 200, 216 to 224 ; No. VIII., October 1844, pp. 1 and , ;
No. X.,. July 18'11, pp. 263, 270; No. XI., July 1847, p. 871. The Honour-
able Rao Saheb Viavanath Mandlik haa lately in the aame Jourul, No.
XXXII., April 1876, publiahed translations of three granta (by Walabhi
Kinga) engraved on copper-plate!! found in Kattiawar. One of theee grants
by Sri Viladitya (pp. 333, 363) actually namea the cultivat.on in poueuion.
The grant waa for certain roligiolll and charitable parpoeet OODJ1ected with
the Buddhiat faith.
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BOKBA.T HIOH COtTRT R'IPORTII, 157
should attempt to overturn it, would a.et like the French 1875.
Government when it confiscated the private estates of the Yu:s:un..t.
nobility and Church.'' The disparity in the incidence of B..t.!~31
assessment did not escape his notice. Ho says: "The GoVBRNMDT
inequality of the land tax and the distance from great towns, 0 ' BoKBAY,
perhaps, makes the value of land to vary ; in some places J ~
it is not saleable. In some cases estates, bought ninety
or a hundred years ago for a considerable sum, would not,
aa the owners say, sell at all now on account of the extra
assessment which has been la.id on since the purchase." In
speaking of the tenantry under the proprietors, he says :-
" Few Mulgainis, or· fixed tenants, have, it is said, been
created since the Oompany's Government. This is attributed
by the Collector to their confidence in our Government.
This is one cause," (it is not quite clear why this should
have been so,) he proceeds:-" and the increasing stock of
the landlord, which enables him to cultivate more of hia
own estate is, perhaps, another. The Mulgainis, or fixed
tenants, have not been obliged to contribute anything when
the proprietor has been extra-assessed; however, I should
think that t~ey ought to contribute in the same manner, in
proportion to the value of their estates. If it be just to
equalise the assessment on the landlords, it ought to find its
level on the fixed tenants." We have seen that Munro said
that the power to effect this lay in Government. Mr. Thack-
eray remarks that " the great difference between the land
in these two provinces'' (Kana.ra and Malaba.r) '' and those
in other provinces is, that here it is vested in individuals;
there, in communities. The villages above the ghauts are
like corporations, communities, .municipalities, republics,
which are the proprietors of the whole lands of the village--
at least, they and the Sarkar share the qualities of property
between them. They have cleared and cultivated the village
lands, time out of mind ; and there is none but the Sarkar
who ca.n claim a.ny share in the property from them. The
village community only wants a fixed land tax, which shall
leave them some part of the rent, to become joint proprie.
tors of tho village lands; they are, however, at present only
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158 BODAY BIOR COUBT RBPORTS.
1875. common tenants, because, in most places, the Govemment

~;;:;;- draws the whole landlord's rent. If the Government ex-
B~~JI acted the whole rent from Kana.ra and Maia.bar, the present
GonBolUOtDT proprietor would not be common, but individual tenants."
M ~. •
Mr. Thackeray next made some statements, as to the history
Jfl4f'/IWII, of the land revenue of Ka.nara, which were obtained by him
from Munro's report of the 81st May 1800, and the accounts
annexed to it. After mentioning that Munro's assessment
for Fusli 1209 was pagodas 4,65,148-88-64, he says:-'' The
Collectors of Kanara have ever since gone on lowering or
raising the rent, according to circumstances, upon Tippoo'a
standard" (pagodas 6,16,089-2-20, the balance arrived at
as such standard by Munro after deducting from Tippoo's
total assessment [pagodas 6,68,678-25-16] ad'4tions (pagodas
2,52,589-23-76] never actually collected by him). u Each
raynt's payment to Government consists of two parts-.hi.rt
and ,h.amil. The ,hilt is the old land tax, and is easy : the
,hamil is the extra assessment, which is sometimes more,
sometimes less than the ,hilt. Few individuals pay the
full sum, including shist and shamil; but while the Col-
lector keeps the full standard, 6,16,089-2-20, in view, the
rayuts have to look forward to pay it, according to the
Kykaguz (o) as it is termed. This standard is too high;
,, but the "annual settlement is made with a view to it, and
the amount is regulat.ed by circumstances. It may here
be proper to observe that, though the standard of Tippoo
be too high, for the country, yet the settlement of Fusli
1209 was concluded and regularly collected under great
disadvantages.'' He then mentions the troubled state of
the country at that time to which we have already adverted.
He next mentions Munro's proposed reductions, "which he
considered necessary to give that spirit to agriculture which
former ages never saw. His opinion seems to have 'been
justified by experience: the Fusli 1209 settlement has been,
in some measure, increased; and though the country has
improved, those rapid advances, which a reduction might
have produced, have perhaps not taken place."
(o) For the meanina of thil term llide irifra, p. 166.
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BODAY HIGH COURT R'ZPOBTS. 159
In their despatch of the 17th December 1813 to the Gov- 1875.
ernment of Madras (oo), the Court of Directors reiterate the Vu;;;;:;:
opinions to which we have referred aa contained in their B'-!u.1x
despatches of 1802, 1804, and 1811, already mentioned, and Govumon
at once acknowledge and manifest their desire to respect the 0 ,. BollliY,
right of property in the soil vested in the rayuts. In para- Jvdgr,affll.
graph 165 they say :-" In framing fiscal arrangements appli-
cable to the existing state of society in Malabar and Kanara,
it is important not to lose sight of the strong ground upon
which the proprietary rights of the landholders in those pro-
vinces are founded. By attemptirlg to introduce an interme-
diate class of persons (call them Zemindars, Mootahdars, or
what we may) between the Government and the Jelmkars (p),
or hereditary proprietors of the soil, we should not be creat-
ing an order of great proprietors, since we have not property
in the land to confer, with the exception of some forfeited
estates; but we shall be raising up a set of farmers of rev-
enue, with interests distinct from, and at variance with, the in-
terests both of the sovereign and the subject. Fortunately
the thriving condition of the provinces, and the improving
state of the public revenue under the present mode of col-
lection, remove every inducement to hazard experiments
upon a. system which, though it may have its inconvenience•
in common with every other system, a trial of several years
has shown to be, in operation, highly beneficial.''
These objections are directed against the interposition of
a new class of landholders between Government and the
ra.yuts, and not against any alteration of the amount or
equalization of the incidence of the assessment.
By the phrase "forfeited estates" the Court apparently
intended to refer to the waste and deserted lands belonging
to Government. In a despatch from the Court of Direc-
tors to the Government of Madras (Exhibit 86, and Rev.
Sel., Vol. I., p. 638, para. 73) of the 12th April 1815, relating
more especially to the Ceded Districts, the Court of Direc-
tors state that they are not prepared to accede to what they
regard as an extreme proposition of the Board of Revenue,
(oo) Rev. Sel,, Vol. I., p. 511. (p) Vi<le RUpra, p. 46,
Digitized by Google ,,,,

160 BOJIBAT IITOB COUBT ll1POBT8.
1876. -viz., irrevocably to limit the power of assessment . vested in

VY.uu11T.1. the sovereign to the then existing rate of land revenue.
Buun
"·
GonaxKDT It would appear from the letters of Mr. Alexander Read
o, BolUIAY. of the 1st January (q) and 19th January 1814 (r) addressed
Jtl4fl'IIMI. to the Board of Revenue (Mr. Read having at that time
been Collector of all Kane.ra), that tho supposed prosperity
of the province of Kanara and of its revenue, upon which
the Directors, iu December 1813, congratulated themselves
in the concluding sentence of the extract just made, waa
to some extent, at least in his opinion, a delusion. For five
years previously to writing those letters Mr. Read had com-
plained that he experienced more difficulty than formerly in
collecting the land revenue. In 1811, 1812, and again in.
1818, he stated that he considered the assessment generally,
and particularly at a distance from the coast, to be too high,
and that the inhabitants were beginning to feel the effect.a
of over-aaaes&ment every year. The Board of Revenue,
adverting to Mr. Rea.d's approaching departure from Kanara
(where he had been from the time of the conclusion of
Munro's administration .&.D. 1800), called upon him to report
the measures pursued by him in that province, and the causes
which had contributed to retard its improvement (a). Mr.
Bead's letters of January 1814 were written in reply to that
requisition. In the letter of the let January he admitted
that there had been an increase in the rates proposed by
Munro-" tho decline of agriculture and various causes of
poverty amongst the rayuts " having compelled him o.nd
Mr. Ravenshaw, in order to maintain the revenue of the
province at its annual standaro, to augment the assessment
of low rated lands as a substitute for other lands which had
failed to pay any revenue. He added, however, that he and
Mr. Ravenshnw had so far adopted the views of Munro as
not in a single in.stance to raise tho rent of an estate " higher
than it had been rated at some former period," and that,
(q) Exhibit A., p. 71, (r) Printod Bookl, Vol. m., p. l.

(,) Exhibit A, Rev. Board minute of 15th September 1831, para.a. 18 to
20, pp. 142, 143.
· -~
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BOXBAY HIGH COURT REPORTS. 161
although the majority of the landholders were rated higher 1875.

than they would have been according to the standard re- VvuuNu
commended by Munro, yet that f ew persons paid the full as-
BAPUJI
"·
sessment · by which we understand Mr. Read to have meant Govxa11MKN'r
' 01' BoMBAY.
the kadim beriz as it existed at the time of the acquisition
of Kanam by the British. There were accounts annexed to J11dv111e11t.
his letter which have not been given in evidence in this
~use, but the general result of them is stated in the 23rd
and 24th paragraphs of the Minute of the Board of Revenue
of the 15th September 1831 (t). It appears thence that,
after making a necessary adjustment, the assessment on the
province of Kanara (including Soonda) had, in the period
extending from Fusli 1209 to Fusli 1222, been increased by
23,7<33 pagodas. That, of this increase, 5,569 pagodas had
accrued from extended cultivation of waste lands, pagodas
4,024 from concealed lands discovered, or inundated lands
recovered, and pagodas 14,170 from additions made to the
land revenue payable by lowly-assessed lands. And that, of
43,366 revenue payers, 22,467 wore assessed within Munro's
proposed maximum and 20,899 (who paid more than half
of the whole revenue of the province) were assessed above
that standard. Mr. Read was of opinion that the salt and
tobacco monopolies, the sea and land customs, the stamp
duties as well as the land assessment, pressed too heavily
on the province-its export trade in the staple productions
having declined, agricultural produce having fallen in value,
and the inhabitants being consequently less prosperous than
during the years immediately following the acquisition of
Kanara by the British.
It will be recollected that the then existing mode of
,assessment wa.s the Bijavo.ri system, resting, not upon any
actual measurement of lands, but upon a rough estimate of the
quantity of seed reported to have been usually sown in each
field. Upon that the kadim beriz, the alleged ultimate
limit of land assessment, rested. Mr. ;Read, who so long as
Munro had been in Kanam, was his assistant, and must have
known whet.her Munro had given any promise on behalf of
(t) Exhibit A, Rev. Boartl minute of 15th Heptember 1831, J>, 144.
B 117-ti
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162 B01CBAT HIGH COURT RKPORTS.
~~ the State t.o the rayuts that the kadim beriz shoold never
VvuuNTA be exceeded, proposed in his letter of the 1st Janoary 181'
BA!.UJI (para. 20), and supported that proposition more fu11y in hia
~&~~~ letter of the 19th January 1814 (para. 3 et seq.), a system of
Msei:sment totally different from the Bijavari method, namely
JwlfJfllfflf. that 30 per cent of the gross produce should be taken by
Government as the standard assessment. Thos he was in
favour of discarding the ancient shist and shamil of Kanara
altogether, the inequalities in which he said were so great
that the ancient shist and shamil would not serve 88 a guide
in equalising the rents of estates (para. 6). He said that ii
should be considered whether 20 per cent of the gross pro-
duce would not be sufficient for Soonda and Bilghi, because
their revenue could easily be enhanced through the medium
of hamlet and road duties (para. 10). Possibly by Soonda, he
here meant Soonda-bala-gMt only. It is true that one of
the objects of his proposal to take a percentage on the gross
produce as land revenue in lien of the Bijavari assessment
was to reduce the general amount of land revenue taken ; yet
many individuals, who had not, in consequence of the great
inequalities in the Bija:V,ari system, paid their fair share of the
revenue, would, by the mode of assessment proposed by Mr.
Read, have been subjected to a much heavier liability than
the kadim beriz of the Bijavari system. And this would
have been consistent with Mr. Read's intention, 88 one of
hie objects was to equalise the pressure of the land revenue.
He could not, therefore, have supposed that Munro had in
anywise pledged Government to maintain the kadim beriz
in permanency. If any such difficulty existed, he was mani-
festly too candid a public servant to have passed it over in
ailence, as he did.
On the 28th April 1817, the Board of Revenue transmit-

ted to Mr. Harris, who had been recently appointed Collector
of Kanara in succession to Mr. Read, certain paragraphs,
relating to Kanara (u), of a minute, which was ultimately
(•) Esbibit U., Printed Bookg, Vol. II., p. 28, transmitted under cover
of Exhibit T., Ibid., p. ~- The paragraph.a so aent were 40 to 68 inclusive.
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recorded on the 5th January 1818 (v). The Board directed 1871.
Mr. Harris to forward a copy of those paragraphs to Colonel VvuuNu
Munro, who about that time happened to be in Kanara. B";,u.n
He had left it, however, before the docwnent reached him. GovuBoNMDT
O• Jl.84Y.
In its 56th para. the Board of Revenue, speaking of Munro, Judgma,L

eay :-" His settlement for the first year after our acquisition
of Kanara, Fnali 1209, was, therefore, pagodas 4,40,630, or
about 1,39,000 pagodas below the- rekah and shamil of
Hyder ; and in his instructiona to the subordinate Collectors
for the settlement of the following year (Fnsti 1210) he
dfrects that no lands should be assessed higher than at
some former period; in other words, that if any land has
escaped the extra assessments of the Bednore princes or of
Hyder's Government, they should eontinue exempted from
them ; but that if they had been made liable to the assess-
ments, and did not now pay them, the maximum of the
demand on such lands should be the ancient rekah, with one,
two, or at the utmost not more than three-fourths., of the ·
modclrn additional ceases, thereby limiting the maximum
land-tax to the 1·ekah, and three-fourths of the shamil in
Ryder's time."
There are two mis-statements in that parngrnph. At the

time Munro wrote his letter of a.dTice to Messrs. Read and
Ravenshaw, these gentlemen were his successors, not his
subordinates. He had no power to give them instructions
or directions. He gave them neither one nor the other,
and simply limited himself to stating what, he thought, would
have been his own policy if he had continued to be Collector
of Kana.ra., and advised them to lld6pt the same, but neces-
sarily left it completely within their discretion whether they
should do so or not.
(I,) Revenue Selections, VoL I., pp. 885, S!>l, 897; and Mt Exhibit A,
Revenue Minute of 15th September 1831, p. 145, para. 28, which paragraph
i1 too concise Lo give a perfectly correct idea of tbe obeervatiollll of the Board
of Rennue in paragraphs 67, 68, 59, and 60 of their miuute of the 5th of
January 1818.
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164 .BOMBAY HIGH COURT REPORTS.
. 1875. The Board of Revenue, still speaking of .Munro's policy,

~~ continued thus :-
BAPuJ1
"·
Gon:RNMENT " 57. Under the jndicions limitation thus imposed o•
11" BoMBAY. the land-tax in Kanara, no field was assessed with a higher
Jt«lrrnu:at. tax than that to which it had already been subject, and
where experience had proved this amount to be so high as to
trench on the vital resources of the country, it was propor-
tionally reduced. The effects of a moderation to which the
people for many years past had been so little accustomed,
immediately became perceptible throughout the province ;
for, by inspiring the inhabitants with confidence against
any further unlimited demands on the part of Government,
it gave rise to innumerable claims to land, which once again
resumed its former value a general improvement ; was sen-
sibly observable in all parts of the district,· and the rev-
enue was realized with a facility which, except in Malabar,
was elsewhere unknown."
This passage is too rhetorical. Munro, as we have seen,

had imposed no limitation upon the land revenue. He had
simply settled it for the Fusli year 1209, and advised that
there should be a limit fixed; but he manifestly thought that
longer experience was necessary before Government could
advantageously determine what that limit should be, at
least in that part of Kanara with which this suit is concerned.
Neither he nor the Board of Revenue was authorised to fix
a permanent limit. It is more than doubtful that an abso-
lutely invariable assessment was ever in his contemplation.
The whole question of a permanent settlement was still
open ; and, from the time of the receipt of the despatch of
the Court of Directors of the 21st July 1802, even the Gov-
ernment of Madras could not, without the assent of the
Court of Directors, have made any final settlement of the
land revenue of Kana.ra. The only period during which
the Government of Madras was at liberty to have made a
permanent settlement without the sanction of the Court of
Directors was that intervening between tho receipt of the
Court of Directors' despatch of tho 11th Feb1·uary 1801 and
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BOMBAY HIOH COURT REPORTS. 165
the receipt of their despatch of the 21st July 1802, during 1875.
which time the Madras Government, as we have seen, did Vvu;;;:;;
not make any such settlement. . Bnu,i
11,
The Board of Revenue, in their Minute of the 18th

January 1818, furthflr said : -
~;-;:::::.T
J udgment.
58. It is grently to be regretted that a limitation found-
ed on such wise principles, and followed by such happy
effects, should on any account have been infringed by the
local authorities who succeeded Colonel Munro; but espe-
cially that the mere desire of maintaining the land rent to
the same annual standard should have induced them to
adopt a. measure confessedly so 'impolitic and unjust' as to
make up by a small increase to low-rated lands the rent of
others which had failed altogether. For" &c.
That remark was not quite fair to Mr. Read and Mr.
Ravenshaw. The principle of requiring the solvent land-
holders to contribute towards making good the defaults
of those who were not solvent was recognized, as we have
already mentioned, by Munro himself (w). It seems to
have existed in Kanara during the Bednore dynasty, though
seldom then enforced (z}, 1:1.nd was not unknown amongst the
Mirasdars of the Dekkan (y). It had been advocated by
Munro for other provinces so early as 1794 (z), and was
subsequently a prominent feature in his rayutvari system,
and, a.s such, participated (see paragraphs 267, 268, 269,
270, and 306 of the Minute of the 5th January 1818, on
which we are now commenting) in the cemmre passed upon
that system by the Revenue Board (a). Those paragraphs,
together with certain others, were deemed objectionable, and
(w) Supra, pp. 132, 140, and Exhibit A, pp. 62, 69. (Munro's lett.ers of
9th Nov. 1800, para. 22, and 9th Dec. 1800, pnra. 11.)
(x) 'Exhibit A., p. 20, para. 17 of Munro's letter of 31st 'MAy 1800.
(y) Bev. Se!., Vol. IV., p, 160 (Mr. M. Elphinstone'a Report of 1819) ;
p. 477 (Mr. Chaplin'& Report of 20th Aug. 1822).
(i) Gleig'1 Life of Munro, Vot III., pp. 95, 96, letter to Capt. Allen.
(a.) Rel', Bel, Vol. I., pp, 941, 942, 950. Seethe rema.rl: of Munro at
p. 882, para 46, The paragt'&phs struck out by Government had not 1-n
amo.ngat those submitted w" Munro by the Bevenue Board.
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16fS BOIIBAY HIGH COURT BIPOBTB.
1875. strnck e11t by the Gove~ent of Madras previously t.o

---- were
permitting the circulation of that minute for the information
VYAl[UJCTA
BAPU.11 of Collectors. The Board continued : -
"·
GovnJOO!IT
or BoloAY. « 59. This, however, in the opinion of the Board, is not
the whole extent of the evil It appears that the rekaA,
with the full amount of the ska.mil in Hyder's time, is now
declared the maximum demand on all the lands of the
province (b). As such it is entered under the term ~riz
in the Kgkaguz (signed pa.per) or individual pottah
(patts) given annually to e&eh rayut under the Collector's
·seal and signat11re; and in the same pa.per is specified the
proportion thereof which may be fixed as bis jamabatuli. or
settlement for the Fusli year; but as the latter is never
determined until near the conclusion of the F11sli, it is
liable annually to variation; and as it must often be left to
be settled at the discretion of the revenue servants, ex-
perience has shown that it may occasionally be, and doubt-
less often has been, fixed with reference rather to the capa-
bility of the rayut than to the producti\'e powers of his land.''
The plaintiff hM not produced a.ny such Kykaguz or
prtUa as is mentioned by the Revenue Board in tlmt para-
graph, which Kyh:iguz or paUa, annual or otherwise, has
been granted to himself or his predecessors in title. It is a
remarkable circumstance that he, who is the holder of
twenty-three vargs (most of which were obtained, as we
have mentioned, by purchase), should not have offered in
evidence a single document of title connected with any one
of them. It is difficult to suppose that he has none. He
has not ventured to enter the witness box and say that
such is the fact. The term beriz denotes the total amount
of revenue assessment, consisting, a.s already stated, of the
Bhiat and &hamil, and sometimes including the assessment.
(b) See to the 1ame effect the obsenntion1 of the Board of ReYenue in
paragraphs 7 and 8 of their letter of the 30th Octoberl817 to Mr. Harris (Exhi-
bit W., Printed Books, VoL II, p. 46 et s,,q.) and also para. 4 of the letter of
the same Board to the Madru Government, dated 9th Sept. 1819, Printed
Bcob, VoL III., p. 9, Exhibit B. B.; and Vol. II., p. 541; also Exhibit.
A. I., 28th Jau. 1813, para. 74 ; and Rev, Sel., Vol. I., p. ~70.
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BODAy mou COURT R"RPORT8. 167
in respect of hosagami (lands recently brought into cultiva- 1875.
tion (c). The term kadim (corruptly lcudeem or "/n4<1.dim), Vvu:u;;,;
occasionally found in coujnnction with benz, signifies "an- B":_0 "
cient or original (d)." The phl'88e beriz or kadim beriz, OovERto1BNT
w1"thout more, d oes not imp
• 1y any guarantee that the rev- 61' BoMBAY.
enue so described is permanent and immutable in amount. Jtt·lg,tffltl.
The revenue, a11 collected before the British rule in Ka.-
nara and Soonda, was described by tho&e names ; but, as
we have seen, was liable to change, and wa.11 in fact fre-
quently changed by the Native Governments, almost in-
variably in the direction of enhancement. The constrnction
of any patta, mulpatta, or sanad, most depend upon what it
contains, and its efficacy upon the authority of the officer of
Government who gave it, or upon its ratification by Gov~-
ment. Its genuineness, as well as its true scope and validity.,
can only be determined in each case in which such a document
is propounded and relied upon. It is possible that ibere
may be patuu, mulpatt<U, or aanada in North Kanam, in
which the context may indicate that the phl'88e bel'iz or kadfrra.
be1-iz has been extfonded beyond its normal signification, and
so employed in those particular instances 88 to mean an
invariable land revenue or rent.
Sir Thomas Munro, in commenting on paragraphs 55 and
56 of the minute of the Revenue Board of 5th January 1818,
and in referring to the rates of assesBment which he had
proposed, and which, as already stated, were only tempora-
rily sanctioned by the Madras GoTernment, said:-
" The opinions which I then (A.D. 1800) gave were found-
ed npon an anxious and constant attention to the subject,
and upon a complete command of every source of informa-
tion, and are much more likely to be right than any that I
could now offer. I did not read over this paper until after
I had left Kanara; and, had I even seen it before my arrival
(c) A11 to ho,agami see Printed Books, Vol. IIL pp. 191, 227, and there
para. 28 of Mr. Maltby'• Report of Oct. 1838, Derendaota' Exhibit No. 24,
and Plaintift'd' Exhibit I. I., para. 28, being a minute o~ the Board of Revenue
of 16th Nov. 18-l3, M.r. Blane'a Report of the 30th Sept. 1848, paru. 51,
52, Exhibit A, pp. 188, 201, 202.
(d) Ex. !JT, kadim ahanbo,JlU {old village accountant). See Printed Boob,
Vol. III., 78, para. 2.
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168 JIO)[B.lT moR COURT B'IPORTB.
1875. there, my st&y was too short to have enabled me to acquire

VrAAUYA any new information that coald be depended upon. From
B•rrn
t'.
all that I could learn, whenever in my progress through the
Govn.TID!IT district, I see no cause to change my former opinion
0 • Boxau. respecting the maximum of assessment. The state of the
J111.~. country at present shows that the rat.e which I then pro-
posed for each district was sufficiently high. In some dis-
tricts the old rekah and l, in others the rekah and l or i of
the extra assessment by the Bednore Rajas and Hyder, WM •
proposed as the maximum." Munro bad not, however, in
practice, adhered with inviolable rigour to his own proposals.
Mr. Harris, in his letter of the 27th August 1817 (Exhibit
V}, para. 6, says :-" I certainly, at the same time, did not
confine the limit of demand to the st.andard of the 11hi11t and
f ths of the shamil, because hundreds of Mulgars were as-
sessed beyond the shist and f ths of the shamu by Colonel
Munro in his first settlement of Kanara, and they have
continued (except when remission was necessary.) to pay
the assessment until this day" {e). Munro, during his
comparatively short experience of Kanara, must then have
to some extent discovered the fact, which became more
distinctly apparent to his successors, that many of the
mulgars, whatsoever may have been the condition of the
others, were, to use carefully-measured language, not over-
assessed {/); and, when treating of remission, he was sug-
gesting a general and not a. unive~l policy to be pursued
in Kana.re.. He continued thus :-" More accurate know-
ledge, acquired during a. period of sixteen years, may have
(e) Printed Boob, Vol. II., p. 38; and see paras. 13, 14, of the letter
(Exhibit No. 7) of the 2nd Aug. 1820; Printed Books, Vol. III., p. 15, in
which, exclnsive of those in Ankola and Sooncla, Mr. Harris gives the actual
number of rayuta in Kanara paying the full beriz aa 5,650. The Board of
Revenue aeeme eventually to have assented to a certain extent to the pro-
priety of euch an asses~mcnt, Exhibit B.B., 9th September 1819, para. 6,
Printed Booke, Vol. lll., pp. 10, 26, and p. 236, para. 46.
(/) Minute of Board of Revenue of llth Jan. 1836, para. 19, (Exhibit
G.O. Printed Books, Vol. III., pp. 17i, 185) ; Exhibit A.A, dated 28th July
1819, para. 2, Printed Books, Vol. IU., p. 8.; Exhibit Y (tlated 9th Sept.
1819), para. 6. The Board of Revenue admitted this to be 10. Printed
Books, Y ol. II., p. li!i.
'
\,. .
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BOXBAY HIGH COURT REPORTS, 169
ahown that these pro~rtions were not exactly suited to the I87lt
state of the respective districts. But I did not think tba.t VnxuNTA.
minute exactness was necessary, or that it was, even if ~.un
atta.in~bl~, half so important~ t~e ~ving to ea.eh district a ~~V::!::;r
fixed liJD1t of assessment. Until this 1B done the land-owners
can have no confidence, and will ~ther be disabled or deter- Jvdg'IAfflt.
red from extending cultivation. It is true that a maximum
has been established in the paUa annually issued ; but a.s
this maximum is the old rekah with the full extra. assessment
of Hyder, it will in general rather discourage \han give
confidence to the landholders, because it holds over them
an assessment which few of them will ever be able to pay."
By the establishment of a maximum in the annual pattas,
we understand that the ka,d,im beriz (old assessment) or
joomla beriz (total assessment) was mentioned by his
successors in documents of that nature issued in years
subsequent to Fusli 1209, for which year alone Munro
made his jamabandi settlement. We have already spoken
of the force of that phrase, and of the effect which might
follow its introduction into e. grant or patta, and shall pr~-
sently recur to that topic. Sir Thomas Munro further
said:-
" It is not necessary that the land rent should always be

maintained at the same amount, or that the assessment
of Hyder should be taken in order to enable us to raise the
rent of thriving estates to that standard. A moderate
standard should be adopted for each district. No estates,
however flourishing, should pay more; those which pay less
may be suffered to reach it gradually, and if they are not
likely to do so, a lower standard might be adopted for
them." And he added : - " I believe that Kanara is more
able now, than it was at the time it came under the British
Government, to pay its assessment. There have been partial
failures, particularly in districts near the Ghauts, but the
province in general has improved, &c."
It is deserving of especial notice that Sir Thomas Munro

•
did not, iu making his notes on the portion of this minute
B 117-11
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170 BODAY HIGH COURT RZPOR'l'B.
..
~
187-5. of the Revenue Board of the 5th January 1818, which was
~~ s11bmittcd to him, say, although the occasion demanded snch
BA~~n a statement if it could be made consistently with fact, that he
OoVJCBmaNT himself had given any promise to the landholders of Kanara
0 ' BoKUY. and Soonda that the assessment, made by him in }"'UBli 1209,
Jtldptent. should never be changed. Hence we cannot be surprised to

find that neither he, nor the Revenue Board, although the
latter did not stint itself in criticising the 1>9licy and conduct
of Munro's immediate s11ccessors, Mr. Read and Mr. Raven-
ehaw, ever ventured to assert that any breach of faith with
the landholders had been committed (g).
Referring again to the remark of Munro, that a maximum
had been established in the patuu annually issued, 'we should
observe that, although the plaintiff has not .produced any
such pattas or other title-deeds relating to his own 1Jargs,
the assessment of which is in dispute, he has, with a
view to establish the character of a muli holding to be
a tenure recognised by the State as involving a strict limit-
ation of its fiscal rights within the bounds of an invari-
able assessment, adduced in evidence several documents of
the nature of grants, pattas, or leases relating to lands be-
longing to other persons. It is somewhat remarkable, con-
sidering with what care muniments of title have been habit-
ually preserved in Kanara, that so few documents of this
class, dated in the time of native role, should have been pro-
duced. It was, we think, to have been expected, had the
rights vested in the muli land-owner been such as have been
contended for before us, that many grants or confirmations
of title would have been forthcoming, decisive in their indi-
cations of the mulgar's tenure, as operating permanently
in derogation 0£ the eovereiill's general right of taxation.
Instead of these we have such documents as 0. 0. at page
56 and P. P. at page 73 of Vol. II. of the Printed Books of
Evidence. The former of these does not contain the word
(g) In their minute of the 8th July 1819, para. 8, forwarded to the
Madraa Gov-ernment on 12th July 1819, the Board only epeake of the depar-
ture from Munro'e general policy u injuclicioue, and eubeequently, u men-
tioned npra, in p. 168, note (e), to a certain emnt acquie.ced in the pro-
priety of that departure.
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•
BOMBAY HIGH COURT B1P0BT8. 171,
mulgar or muli. It is expressly a grant of ]and ia miraa. 18'75.

The witness, Appajee Soobrao (II., 117), says, in reference to V Y A ~
this document, " I consider that a mircu shaaun bhumi &!.1111
patta and a mulpatta are of the same character. '' This may GovEBoRNlO!IT
or IIBAY,
be true, and, once admitted, would enable us to refer the
mulgar's rights to a tolerably familiar standard; but we do Jvdgmtnt,
. not understand the learned counsel for the plaintiff as solieit-
ous to place the muli tenure on a level with ordinary mira8.
The grant P. P. is of the same cha.racter as 0. 0. " It is
settled to give them (i. e.. three pieces of land) to the said
Desai on sha8an bhaaa fixing (i. e. establishing) miras." It
wa.s, no doubt, competent to. the sovereign and his authorized
representatives to make grants or leases in individual cases,
on any terms whatever; but those terms can furnish no stand-
ard for the estimation of the muli right, unless the equiva-
lence or precise relation. of the. one to the. other be plainly
deducible from the lang.aage of the grants themselves.
Where, as in the second document marked P. P. (h) (Vol. II.,
p. 73), the grant calls itself a '' Krima miili aha.sun patta,"
it is expressly set forth that the grantee had asked for the
land on an undertaking to pay the " diwan tergi,"· or land
tax ; and though the grant is ma.de, as it iJJ said, on-'' aha.sun
bhasha," (which seems to mean •<.an explicit grant" or
"a declaration by way of grant''), and although_ a. proprie-
tary right may be conferred for such time as t~ grantees
pay the" diwin tergi," there is not any express engagement
that the " diwin tergi '' or land tax shall never be increased.
Tho phrase " diwin tergi " has been rendered by the inter-
preter " Government tax." If this necessarily implied an
invariable tax, the grant would he.Te to be construed accord-
ingly ; but whether the land tax w:as or was not subject to
variation is the question-one, the solution of which is not
furthered in any way by the uso of the words, whose
sense has to be determined without accompanying expres-
sions such as to show that · the one or the other meauing
must have been intended. There is, indeed, a statement in
(h) 'Both of the document. marked P.P. were granted in Tippoo's time,
and bear dates corresponding with ~.11. 1700.
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· 172 BOIIB.lY HIGH COURT REPORTS,
18715. this mul patta of what the " tergi '' is, and a direction for
VuxunA its annual payment ; but, unless in variableness be otherwise
BAPun
"· established, this affords no proof of it. Supposing a liability
GonBouJDNT to variation to have subsisted, however sparingly the cor-
or KBAY.
· responding right of the Government may have been exer-
J ~ . cised, it is necessary to bear in mind what the Privy
Council said in a stronger case, being that of a private gra.nt,
that; "where variableness of jama (the amount payable
by the grantee) is the normal condition, the mere naming of
11. sum certain in connexion with the grant of a descend-
ible tenure does not impart, of itself, fixity to that snm, in
the absence of positive words, or of other evidence to show
that such was the original design. 11-Maharanee Shibessouru
Debia v. Mot!woranath Acharjo (i). The promise is limit-
ed to this :-" You and your descendants personally and
by assignment are successively to. enjoy the lands in ac.
cord.a.nee with what is above written, 11 i. e,, paying the
diwan tergi, the present amount of which is indicated, but
without the expression or, so far as we I).re at present informed,
the implication of any guarantee against variableness accord-
ing to the needs of tl:te St&te, but rather the contrary.
As to the grants or leases made after- the introduction of
the British Government, none of those issued by Munro
himself have been produced. The earliest in date are some
issued by his successor, Mr. Read, Exhibits Q. Q. and R. R.
(Vol. II., pp, 58J 59) are two muli grants made by him in
February 1803. They transfer to the grantees the ~ e
rights as were enjoyed by thl:l previous mulgarB, and, not
specifying wh;i.t those rights were, afford us no light for the
dete:rmination of what was essential in a muli tenure. They
aet forth thejoomla btri.11 (i. e. total assessment) payable on
the lands ; but this specification, without words importing
the invariableness of the demand, would impose no restric.
tion on e. readjustment of it by the Government. Moreover,
if Mr. Read had intended to grant the estates at a rent fixed
for ever, he had no authority in that respect, We have
seen that the interests of Government were gna.rded against
(i) 13 Moore'a Ind. App., 275,
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alienation by the instructions to Collectors of the 25th June 1875.

1791, under which Munro himself acted. .According to VYAK~
Madras Reg. II. of 1803, S. S. 43, 44, a Collector could not BA!~JI
grant cowls (kauls), or alienate Government lands, with- GoVERN!Blff
. OF BoMBAY.
out express a.uthor1ty; and by Reg. I. of the same year,
and forming a part of the same connected system of Judgmtm.
revenue legislation, the Board of Revenue itself was pro-
hibited from confirming a fixed rent without the sanction
of Government. Accordingly we find Mr. Read, on the t.5th
May 1807 (Vol. III., p. 201, Exhibit A. K.), requesting au-
thority for· the creation of private pl'Operty in Sarkar lands,
which the Government sanctions (28th October 1807) on
condition that the grantees are to engage for the ordinary
land tax. What " the ordinary land tax " was, has to be
gathered from other sources ; but it was certainly not a
fixed rent for the constitution of which the Regulations ape•
cially provide, and none such was proposed for approval.
The mulpatta S. S. (J) at page 61 of Vol. II., might, if
there were no question of the Collector's authority, seem, at
first sight, to admit of a construction such as the plaintiff
desires us to put on it. It is, in fact, relied on by the
witness Munjoonthaya (V ol I., page 156) as implying that the
beriz is never to be increased. But, independently of the
important principle of construction la.id down by the Privy
Council, and to which we have already a.dverted, the remark
occurs that the concession of specially liberal terms, whether
through design or inadvertence, to a mulgar in a particular
instance, by no means implies tihat these terms were an
essential, or even ordinary, element of the muli tenure.
That no such inference is to be drawn is conclusively
established by the numerous specimens of mulpattas collected
in Printed Bks, Vol. II., pp. 81, 88, 89, 91, 95, 97, 98, 381 et
seq. (viz., Exhibits 44, 45, 47, 48, 58, 55, 56, 57, 58, 60, 61,
62, 63, 64, 66, 67, 68), all of which purport to be grants
in muli tenure, conferring a mulgar's estate (proprietary
(i) Dated Fuali 1227 (A.D. 1817·1818). The land, the subject of thia
mulpatfa, is in Southern Ankola (Ookurn), and not in the Panch Hahals in
which the lands in this aqit are 11ituated.
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174 BOMBAY HIGH COURT RJU'ORTS.
1875. right) on the grantees and their descendants from genera-

-~~ tion to generation, but specifying an annual rent to be paid
B.u;,~n by them either " until the beriz be fixed and thereafter
OovBRNMENT such amount as shall be fixed for the country" or "until
~&~ '
the settlement of the fixed assessment and thereafter the
J ~ amount fixed according to the beriz (assessment) settled for
the country," or" according as may be fixed at the revenue
settlement by Government," or" and thereafter the amount of
money fixed according to the revenue settlement settled
for the country from time to time," or " for one year in the
Haidari coinage and thereafter the hoons fixed according to
the beriz (assessment) settled for the taluka.'' Even the
mulpatta S. S. itself is, by its granter Mr. Harris,_expressly
based upon and meant to conform to " an order received from
the Madras Government under date the 80th August 1807,"
which date is evidently intended either for the 81st August
1807 or the 81st October 1807; and to have had reference
to the order of the 28th October 1807, which is included
amongst the documents lettered collectively as A. K., pre-
viously mentioned by us. 'rhe person who drafted the
mulpatta S. S. intended to refer to that order of the Madras
Government .either under the date 31st October 1807, upon
which it in all probability would, in the normal course of the
transmission of such documents, have been received by the
Collector or Board of Revenue from Government,-August
being very commonly, by Native clerks, written in abbreviated
form by mistake for October,-and vice versa; or he intend-
ed to refer to the same order under the date of the applica-
tion of the Revenue Board to Government for its sanction,
upon which application the order was ma.de, that date being
the 31st August 1807. ThQ Exhibit S. S. is not the only
instance of error in referring to the same order (see Exhibits
40, 51, 55, and 66 (k); but the date given, with regard to the
same order, in Exhibits 46, 49, 58, 54, 60, 61, 62, 63, 64,
65, 67, and 68, is the 81st August 1807 (l). The mulpatta
T. T. (Vol. II., p. 67), dated in 1826-27, gives to the grantee,
(k) Printed Books, Vol. II., pp. 88, 385, 386, 389, 391,392, and 393.
(l) Printed Books, Vol. II., pp. 81, 89, 91, 95, 96, 97, 98,394,395, 397,
398, 399, 400, and 401.
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..
JIOlfllAT HIGH COURT REPORTS. 175
under Sec. 15 of Madras Reg. XXVI. of 1802, the rights of 1875.

the former mulgar. What those were, it does not say ; but VYAXUNT4
if they a.re to be gathered by inference from the context, in BA.:.un ·
which it is provided that the grantee was to '' pay from OoVERNJHNT
or Bo110.n.
sea.son to sea.son the amount of the revenue settlement," they
did not exclude variability of assessment. · A like responsi- Judgmot..
bility is imposed on the mulgar by the earlier mulpatla U. U.
(Vol. II., p. 72) dated in 1803. A promiseis, in that case,
added, that "although greater cultivation be effected, yet
the above tirwa is fixed," but the " above tirwa " is defined
thus :-" You are, year after year, like other ryots, to pay to
the Sirka.r the a.mount of the ja.maba.ndi," i.e., the revenue
as annually settled by the Collector; and the engagement
comes to no more than this, that the tirwa shall not in conse-
quence of superior cultivation of the land by the tenant or
grantee, be increased beyond the rate properly imposable on
the land if the cultivation were of the ordinary cha.meter.
The word "fixed" is used, as in other instances, only with
reference to some particular ea.use of possible varieties. The
common forms sent up by Mr. Maltby to the Board of Rev-
enue in 1838 (Vol. III., pp. 192, 193), and the numerous
mulpattas set forth in Vol II. of the Printed Bks, pp. 81, 88,
89, 91, 95, 97, 98, 381 et seq., all point distinctly to the
co-existence of a mull right in the landholder, with a power in
Government to vary its demand. Had the two things been
inconsistent, the documents could not reasonably have been
called mulpattas; there was no occasion to give t,hem this
name, unless they answered to the general conception which
it implied, at a. risk of causing future embarrassment by
affording an apparent fonnda.tion for claims which the
Government distinctly intended not to recognize. Mr.
Blane, in speaking of grants of waste land ma.de by his pre-
decessors in the collectorship of Kallam, said that there is
a " clause in most of these pattaa which appears to have
been by some means or other kept out of notice, and which
reserves the right of increasing the beriz on a.ny permanent
settlement being ma.de" (m).
(m) S,e his report of the 20th September 1848, para. 113, Exhibit A.,
p.~3.
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176 BOXBAY HIGH COURT REPORTS,
1875. We now should mention what has been styled the tkaratJ
-;;;;-~ (corruptly tarow and tarro,o) in Kanara. The word tharav
B~~un is derived from the Hindustani verb · tharana, to fix, de-
OonBoiunaNT termine, or settle, and signifies a settlement, a determination,
~ ~~ .
an arrangement, a fixing. The phrase tharav-bB'/'1,Z means
Judgmmt. a fixed assessment, and is usually applied to the new assess-
ment ma.de on the tharav of A.D. 1819, on the aarcuan
system, which we shall now very briefly describe.
On the 30th October 1817, the Board of Revenue at Madras
wrote a letter to Mr. Harris as Collector of Kanara (n), and
stated in its 10th paragraph that the Board was "of
opinion that the best universal standard of maximum
demand would be the average collections realized from each
estate since the province has been under the British Govern-
ment." That mode of assessment, by adopting the average,
is the aarasari system. The Board in its 11 th paragraph
directed that, subject to the confirmation of Government, the
settlement for that year should be founded on that basis,
the average collections from each estate for the immediately
preceding sixteen or seventeen years being a.seamed a.a
the maximum of the Government demand thereon. Mr.
Harris, by a subsequent letter (o), having demanded more
detailed instructions, the Board, on the 29th December
1817 (p), gave these further instructions, and authorised
him to defer the new settlement on the sarasari principle
until Fusli 1228. The Board having, on the 12th July
1819 (q), submitted the proposed tharav based on that
principle to the Government of Madras for approval, that
Government authorised the Collector to make a settlement
on that basis for that year (7'), and Mr. Farran, the plaintiff's
(n) Exhibit W ., Printed Books, Vol. II., pp. 46, 47.

(o) Dated 12th December, 1817, Exhibit X ., Printed Boob, Vol. II.,
p. 48.
(p) Exhibit Y., Printed Books, Vol. IT., p. 52.
(q) Exhibit Z., Printed Books, VoL Ill., pp. 5, 6, 7,
(r) See Exhibit A., p. 151, para. 42, referring brielly to a letter of the
30th August 1819 from the Secretary to Government to the Board of
Revenue, which letter was not given in evidence in thil 1uit,
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counsel, in the course of his argument, has admitted that no 1875.

final sanction has been accorded to the tharav system by VYAKUNTA
BAPU.JI
Government (s). As a consequence of that admission, and "·
for another reason which we now proceed to state, it is GoVEBol:Ul1DINT
OF MBAY.
unnecessary for us in this case to express any opinion upon
the finality of the tharav settlement of 1819. That reason J ~ .
is, that it has been admitted on both sides that the thara"
beriz has never been applied to Ankola, Soopa, or Soonda (t),
although the Revenue Board had originally not excepted
those portions of North Kana.ra from their instructions
to Mr. Harris to assess on the sarasari system (u). Estates
subjected to the tharav, and paying the full tharav beriz,
were styled bharti (corruptly bhurtee or bhurty) ; and
estates so subjected, but on which a remission of assessment
had been given, were styled kambharti (corruptly combhurtee
or · ccrmbhu1ty) (v). The tharav settlement, in those parts
of Kanara in which it had been introduced, appeal'l3, in
1832-33, to have been reconsidered by Mr. Viveash, as Col-
lector, with a view to equalization of the assessment (w),
but his method was not eventually approved by the Board
of Revenue or by the Madras Government (:i:).
Although at an early stage in the career of Mr. Harris at
Kanara, before he can be regarded as having mastered the
(a) See Mr. Blane's Report of 20th Sept. 1848, paraa . 23, 68, Exhibit A.,
pp. 181, 214; Exhibit C. C., 17tll Jan. 1850, para. 14; Printed Books, VoL
III., p. 115; Exhibit No. 30, 12th Jan. 1843; Ibid. , p. 109; Exhibit· I. I. ,
16th Nov. 1843, paras. 69, 70, 71; Exhibit G. G., llth Aug. 1836, Pri.nted
Books, Vol. III., p. 181, para. 11.
(t) See Exhibit No. 5, dated 30th Dec. 1819; Exhibit. No. 6, dated 10th
Jan. 1820 ; Exhibit No. 8, dated 14th June 1821, paras. 4 et aeq and 52 to
70; Printed Books, pp. 128, 129, 33, 52 to 56 ; Exhibit 85, dated 29th Oct .
1821, M. S. ; Exhibit A., pp. 152, 154, paras. 4.6 and 50 of Revenue Board's
minute of 15th Sept. 1831 ; and p. 219, Mr. Blane's letter 20th Sept. 1848,
para. 73 et seq.
(u) Exhibit No. 8, dated 28th Dec. 1820, para. 32.
(v) This di vision into bliarti and kambharti was made by Mr. Viveash aa
Collector of Kanara on a revision of the tharav by him, not eventually
sanctioned by the Board of Revenue or the Government of Madras ; Printed
Books, Vol. UL, pp. 75, 76, 77, 101, 102, 103, 104, 105, 107, 240, para. 71.
(w) &e paras. I and 4 in Exhibit I. I., dated 16th Nov. 1843, and the
papers mentioned in the margin thereto, Printed Booka, Vol. III., p. 218.
(z) See the references in note (11) supa.
Jl 117-w
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178 BOllBU HIGH COUR'fB1i:PO&T9.
1875. real state of the revenue in that province, and especially in

VvAXUNTA Soonda and Ankola, he, in a letter of the 27th August
BAPUJI 1817 (y), said :-''There is no doubt that from the highe,t to
v.
the lowest ryot, and I know from the head kutcherry servant
· GovERNMENT
OF BoMBAY. to the shanbogue of every magani, has the total beriz in his
Judgment. patta been looked upon as the Sarkar's limit of demand by
every possessor of land in Kanarn." Yet assuming, what
perhaps is doubtful, that he intended to include Sooncfa,
Soopa, and. Ankola in that remark, he, after a personal
investigation of those regions, and of the condition and
history of their land revenue, admitted, in his report of the
14th Jnne 1821 (z), that he could not attempt to introduce
the sarasari system of assessment, on which he had based
his tharav for the rest of Ka.nara, into those localities. He, in
para.graphs 52 to 70, especially discusses the case of Ankola.
The concealment of the extent of land cultivated (under
the denomination of N1.Ukt [nusht] remissions (a)), the
systematic and long continued frauds of the shanbognes
(village accountants), who were chiefly Shenvi (corruptly
Shenna.wee or Shunuawee) Brahma.ns, and who were also
amongst the chief landholders, and the gross ineqnalities of
the 888essment (b), satisfied him that a survey of at least
the pakani (corruptly panee) kind (c) was indispensable
before any satisfactory settlement could be effected, and he
solicited the sanction of the Board of Revenue to the ap-
pointment of a special establishment for that purpose. A
careful perusal of the whole of his long report, though it
was penned with small regard for lucidity of style or even
(y) Para. 8, Exhibit V., Printed Books, Vol. II., p. 37.

(z) Exhibit No. 9, Printed Books, Vol. III., pp. 33 ,t at,q.
(a) Yide attpm, p. 82, note (i).
(b) A continuance of which he u.id (para. 8) would be "an act of
culpable and unpardonable folly and neglect of duty " on bia part.
(c) Mr. Bobertaon, in hia report lit May 1820, in speaking of Uae n.r-
veye of Malik Ambar in the Delr.kan, eaid they "were only what are
termed Nazur pahan-,or emmatee from beholding and traftl'Sing the land
without actually meuuring it." Rev. Bel., Vol. IV., p. 418, para. 101, llr.
Barria deacribea it aa a aurvey by eight (inapecti.oll) and m-remeut.
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BODAY :~IGB COURT RIPO:&TS. 179
grammatical accuracy, has satisfied as that he had then 1875.

devoted considerable attention to the revenue of Soonda, VYAKUNTA
Soopa, andAnkola,as well in its economical as in its historical BAPun
"·
relations. Such a. perusal is essential to a. right apprehen- GovuN1BNT
sion of his remarks a.s to Ankola. He had (para. 51) with his ., BoMBAY.
0
own establishment been attempting a pahani survey of JtMlg1Mnt.·

" several villages in Soonda and Soopa, including the whole
magani of Buddengode,'' a.nd promised to report the result of
it to the Board. The Board of Revenue, concurring in the
necessity of obtaining more information !'8 to Soonda, Soopa,
and Ankola, recommended to the Government of Madras (at
the head of which was then Sir Thomas Munro, who wor-
thily filled the high office of Governor from the 8th June
1820 to the 12th July 1827), that the proposal of Mr. Harris
for a special establishment to conduct a pa.hani survey (e)
in Ankola, and an increase of his establishment for the same
purpose in Soonda. and Soopa., should be adopted (!). This
course W88 sanctioned by that Government (g). Mr. Harris,
on the 27th May 1822 (h), reported the result of his survey
of B11ddengode to the Revenue Board as, in hie opinion, suc-
cessful, a.nd proposed an assessment, founded upon it, of
Buddengode to the extent of one-third of the gross produce.
This proposal was sanctioned (Sir Thomas Munro still being
Governor of Madras) with an injunction to Mr. Harris to
be moderate in carrying it into execution, and he was
authorised to entertain ~ establishment to enable him to
survey and . assess on the same · principles the whole of
Ankola. and Soonda a.nd the rest of Soopa (,"). The taking
of one-third of the gross produce was a rejection of the
(e) Mr. Blane, in hie report of 20th Sept. 1848, condemned this mode of
survey u perfunctory and inefficient; Exhibit A., pp. 214,226, paru. 67,
88, and aee Exhibit I. I., ReYenue minute 16th Nov.1843, para. 67,Vol. III.,
P. B. 239.
(f) Minute 29th Oct. 1821, Exhibit No. 86, M.8.
(g) Resolution 7th Dec. 1821, Exhibit A., p. 155, para. 54.
(h) Exhibit No. 12, Printed Books, Vol. III., p. 130; and a« Exhibit
No. 10 dated 17th June 1822, and Exhibit No. 11, dated 17th June 1828,
Printed Books, Vol. III., p. 61.
(i} Exhibit A., pp, 166,157, Report of Rev, Board, dated 15thSept. 1831,
p&raa, 56 to 60.
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180 BOJIBAY B-IOB COOR'f.; RIPORTS.
1875. theory that the kadim beriz, consisting of the full shist and
---
VYAltUNT.l ahamil, constituted the extreme legitimate limit of land tax-
B~.u.n ation. The inequalities of the assessment under the old sys-
GovmunnNT tem were so great and so numerous, that in many instances
01' BoJUU.Y, •
one-third of the gross produce would exceed the kadim
Jlldgmfflt. beriz, and in others would fall short of it. The fact that
Mr. Harris, through the Board of Revenue, made to a Gov-
ernment presided over by Sir Thomas Munro, and that such
a Government accepted, the proposal that the assessment
should be one-third of the gross produce, tends strongly to
prove that neither the proposer nor the acceptors could
have thought that any guarantee had been given to the
mulgars at large in Ankola, Soonda, and Soopa by Sir Thom88
Munro in the year 1800, or by any other person since that
time, that the kadim, beria in Ankola, Soonda, and Soop"
should be treated as an impassable limit of assessment. Mr.
Harris died about the year 1824 (j), and was succeeded as
Collector by Mr. Babington, from the 7th paragraph of
whose letter, to which we shall next refer, it appears that
the new survey beriz of Buddengode exceeded the kadi,,,
be1·iz by Rs. 1,924, notwithstanding that on such lands, in
that magani, as had been excessively assessed, the burden
of assessment had Leen reduced; the gain to Government
having been apparently caused by the assessment of previ-
ously unassessed, but clandestinely cultivated lands-the
figures, which he gives in the margin, being exclusive of
waste lands.
In the same letter of the 24th August 1825 (k), addressed

by Mr. Babington to the Board of Revenue, he mentioned
(paras. 2, 3, 5) the completion of the survey and assessment
of Buddengode by Mr. Harris, and of four other maganis
by Mr. Cameron, and (para. 25) that he (Mr. Babington) had
" not heard a single complaint against what has been done
or discovered the least sign of apprehension respecting the
further introduction of the settlement.'' This, however, Mr.
(i) Exhibit A. , p. 162, para 73.

{k) Exhibit 14, Printed Books, \'ol. 111., pp. 64 to 69.
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BOIIB.\I• HIGH COURT REPORTS, 181
Babington and Mr. Cotton, from whom the former obtained 1875.
his information (Exhibit No. 13, dated 30th June 1825), at- VYAKUNTA
tributed to the fa.et that in those five ma.ganis the land- BAPuJr
v.
holders, though styled mulgars in the revenue accounts, GoVERNMENT
were substantially only sarka>·i tenants. The garden lands, oF BoMBAY.
however, in Soonda. Ba.le.ghat Mr. Cotton deemed to be Judgment.
private property of the true muli type, and generally con-
sidered not to be assessable beyond a certain limit. Mr.
Babington furthersta.ted that the survey in the Pa.nch Maha.ls
in Ankola and in Soonda. Ta.luka, with the exception of
Burmavasi, and in Soopa with the exception of a few vil-
lages in Sambrani · and M udunoor maganis, had been com-
pleted, and that the survey in the excepted parts would be so
in less than one month after the monsoon, proceeded to
criticise the mode of assessment applied to the five maganis
(including Buddengode) already settled by Mr. Harris,
and to make suggestions as to the assessment of the
remaining twelve maganis in the Panch Mahala of Ankola,
and in Soonda and Soopa, the survey of which, on the pahani
method, had been, as now mentioned, fa.r advanced, and
was to be soon finished. He doubted " whether under the
Stha.lva.r (corruptly Stulwar (l)) Settlement that had been
adopted the rayuts might not be induced to relinquish parts
of estates now under cultivation," and explained that his
apprehension arose from what he deemed to be faults in the
rules which had been prescribed for the conduct of the
survey. According to them, one-third of the gross produce
was to be fixed as the share of the Government on all kinds
of la.nd,-good, bad or indifferent,-and it appeared to him
that the assessment so determined could not fall fairly on
eRCh sort. As the expenses of cultivation are less in good land,
so the profit to the ra.yut would proportionably be greater
than in bad land, and Mr. Babington apprehended that if
(l) From Sthal (corruptly Stull), a plot of ground containing one or
more fields. The Sthalvar Settlement spoken of here is that arrived at by
Mr, Harris by his pahani survey.-See Printed Books, Vol. III., p. 65, para.
9; p. 130, para. 2; p. 36, para. 15; p. 71, para. 49; pp. 78, 79, 213, para. 8 ;
P· 229, para. 33 ; and see Vol. It., pp. 148, 149, 150, where Sthalvar it uaed
to indicate the area of the land.
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182 BO)(BA.Y HIGH COURT Rfl'ORTI,
l87S. the assessment were regnlated upon that principle it might

VYAJU7NTA tend to an abandonment by the rayuts of their inferior lands
BAPUJJ
"· and a concentration of their stock and labour on the su-
~~= perior lands. He, therefore, requested authority to fix the
assessment on each entire estate consisting of good and bad
J""1g,Mnt. land at an amount equal to one-third of the gross produce,
and to sub-divide it on each sort of land at rates varying
from 85 to 20 per cent, instead of one uniform rate of 38!
per cent, for the whole. This, he thought, would obviate the
objootion which he made to the plan of Mr. Harris. Mr.
Babington, therefore, on this 9(l(l&8ion, no more than Hr.
Harris, held Government fettered in the proposed assessment
of the general lands sitnated in the twelve m.aganis by the
kadim bmz; but, with respect to garden lands which he
considered as held on mtdi or quasi ttluli tenure, and
as producing the halut duty payable to Govenment, he
objected, at considerable length, to an equalisation of the
assessment, and expressed his opinion to be '' that no
excess above the present kadim bw should be made on
any estate unless it be clearly proved by other evidence,
in support of that acquired by survey, that there are lands
now forming part of it which are not included in that bw,
or (in other words) which are now held by the rayut fraud-
ulently and unassessed" (m).
In its minute of the 80th April 1827 (n), written while Sir
T. Munro was governor, the Board <!£ Revenue disapproved
of Mr. Babington's opinion that the assessment should be
regnlated so as to give the rayut an equal net profit from
every acre of land he may occupy, as being wrong in principle,
and unattainable in practice, and maint.&ined that the proper
object of Government was to equalise the assessment on
the land, not the profits of the cultivators. To equalise the
profits on good and bad lands, they observed, would be to
(m) Paru. 18,to 21.' It ahould be :recollected that Munro drew a strong
clilltinction between garden Janda iii the provinoe of Soonda (inolnding the
Panch Mahala of A.nkola) and the rice Janda. In the former he recogniled
private property to a oertain extent in the holders. The latter, he aaid,
were ll&l'bri Janda, Exhibit A, pp. 27, 28. The plaintilf'a Janda are rice
Janda.
(ra) Exhibit No. 15, Printed Books, Vol III., p. 212.
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BOMBIJ 81GB COURT REPORTS. 183
render assessment in reality very unequal and unjust. The 1875.

proprietor of good land would be taxed not only in proportion Vvnt1NTA
to the larger return which it yielded, but in a greater pro- B.u>un
portion. He would not even be on a par with the owner oo~IIWfT
of bad land, who would .enjoy an equal profit, and, from OJ' Bo.llBAY.
being answerable for a smaller amount of revenue, would Judgmerll.
incur a smaller risk. The beet lands would, in fa.et, become
the lea.et desirable. Equality of assessment, in the opinion
of the Board, consists in taking a certain fixP-d proportion
of the net produce of all descriptions of land, or, what is
the same thing, of its value in money. As the proportion
· which the net produce from a given extent of land bears to
the gross produce varies with the fertility of the soil, and
other circumstances, the proportion which ea.eh of its con-
stituent parts, viz., the share of Government and the rayute'
profit bear to the gross produce must vary in the same
degree, though they do not vary in relation to each other.
The rayut will have a larger return from the good land, bui
he will have more revenue to pay ; he will have a less return
from the bad land, but he will have less to pay. This the
Board considered to be ihe true theory of aSBessment.
The Board did not consider Mr. Babington as yet suffi-
ciently informed to warrant his reducing the rate of assess-
ment of garden land below that of rice land. It directed him
to make further investigation and to assess experimentally
a few villages of each of those kinds of land.
As to certain rice lands held, but underlet at a low rent

by certain Brahma.us, to assess which at one-third of the
gross produce Mr. Babington said would be to destroy all
private property in them, the Board of Revenue admitted
that some allowance must be made for the Brahman land-
lords, but directed that the lands should be ass~ssed and
entered in the accounts at their full value, and that the
allowance should be given by way of remission at the annual
settlement (para. 15).
The objections made by Mr. Babington to the equaliza-

tion of the aasessment, according to the survey which had
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184 BOMBAY HIGR COURT UPORTS.
1875. been made by Mr. Harris, were unequivocally overruled by

VYAKUNTA the Board of Revenue, which objections, it observed, " would
BA.~~JI go to oppose the introduction of survey rates elsewhere as
GoVERNMENT in Soonda." The Board said" his (Mr. Babington's) chief
or BoKBAv.
objections seem to be : -
Jud.gment. "lst.-That the equalization of the assessment will effect
a total change in the value of all private property in land.
This may be true, but the assessment will only remove a
distinction which ought never to have existed, and which
originated as it has continued through fraud or oversight.
Some will gain and some will lose ; but in no other way can
justice be done to all, or the land revenue be placed on
a sound footing. The inconvenience will be temporary,
the good permanent. The Board have no donbt that the
equalization of the assessment will be for the genera.I goQd of
the district; but it is an object to make it a.s little distressing
e.s possible on its first introduction, and if the Principal
Collector should think it advisable to palliate the partial
inconvenience likely to arise from the measure, by bringing
it gradually into operation, the Board would be inclined to
give an indulgent consideration to any suggestion to that
effect."
" 2nd.-That if the assessment be fixed according to the
Survey, many rayuts will be taxed on the fruits of their own
industry. On this point the Board would observe that the
rayuts are everywhere taxed on the fruits of their own
industry. They ought not, however, to be taxed on the
fruits of any tr.ttraordinary industry which they may have
bestowed on their lands, for the assessment should be fixed
with reference to an ordinary, not to a high state of culti-
vation.•·
"8rd.-That in a few years there will be almost the same
inequalities and the same necessity for a revision as at
present; and that the rayuts, knowing this, will be appre-
hensive that they will always be liable to alterations of
assessment, and that this apprehension will check improve-
ment. The Board are aware that every assessment has a
tendency to become unequal in procesfi of time; but if an
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IIOlOIAY HIGH COURT RIPOBTB. 185
assessment is equal and moderate in the first instance, a ~ · -

long period may elapse before the inequalities are such a.e v1~~~:ir"'
to render a revision necessary. The Board have also little 11.
• • 0oVKRNMD"T
doubt that the re.yuts will soon be brought to consider the as- oF BoKBA.v.
seeement permanent e.s a maximum, if proper pattaB a.re given
to them, and if they understand that the principle of the as- J ~
seeement is to tax the lands according to a moderate estima~
of the ce.pabilities, not according to their actua.1 culture."
The Board of Revenue, we e.re inclined to think, would
not, e.s it did on the 3rd May 1827, forward such a minute
to the Government of Sir Thomae Munro, if it believed him
to have pledged the faith of the State twenty-seven yea.re
previously to a gWl,1'8,ntee that the e.seeeement then me.de
in Kanara, Soonda, and Ankola should never be enhe.nced, or
il they supposed that hie successor had been authorised to
give and did give any such general 8t88ure.nce to the rayuts.
Sir Thomas Munro died on the 6th July 1827.
The minute of the Board was not answered by the Gov-
ernment of Madras until March 1828, when it seems to have
met with the approve.I of that Government, which, as to the
proper means to be adopted for equalization of the revenue,
ee.id (o) :-
" 3. The rule, as stated in the 4th paragraph of your
proceedings, which it is your opinion should be observed in
order to secure an equality of assessment, namely, to take a
certain fixed proportion of the net produce of all descriptions
of land, or, what is the same thing, of its value in money,
is considered by the Right Honourable the Governor in
Council to be correct, il by the term ' net produce ' is meant
the surplus which remains after defraying every expense
attending the cultivation of the land, and that of maintaining
the rayut. If the latter be not deducted, it is obvious that
the cultivators of the worst lands, which generally require
the greatest labour and expense, and yield the least produce,
would be compelled to abandon their cultivation, unless they
(o) Exhibit No. 16, dated 28th .March 1828, Printed Boob, VoL IIL,
p. 217.
B 117-z
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186 BOIIBAY HIOH COURT BBPORTS,
1875.
- - - - held good and bad land in equal proportions, or nearly so,
VYAKUNT.l when the profits derived from the one might enable,. them to
BAPUJI
v. keep up the cultivation of the other, if so disposed.
GOVERNMENT
OF BoMBAY,
"4. The main object of the Collector should be to regu-
Jw1gfflfflt. late the assessment, so as to hold out no inducement to the
ra.yuts to occupy or abandon any particular description or
portion of land ; and that object will best be obtained by
attending, in the classification of the land, to all the circum-
stances which increase or diminish the facility and expense
of cultivation : these are well understood by the rayuts
themselves, and the classificatiQn has in most part.a of the
country, and in the best surveys, been loft in a great measure
to them. The Board have well observed in another place,
that ' it is not sufficient to know from what source the water
is to be obtained, and the colour or description of the soil to
which it is to be appropriated ; the labour and expense of the
ra.yut depend upon the quantity and certainty of the supply,
the ease or difficulty attending its conduct to the required
place, and the distance of the field from the village ; and it is
impossible that any assessment, formed without a due regard
to these considerations, can be either just or permanent.'
" 5. When the land has been correctly classed, a portion
of the produce converted into money, or, what is per-
haps a safer guide where there is reason to believe that past
collections have not been too low, from fraud, neglect, or in-
correct accounts, a sum of money, calculated with reference
to such collections, might be separately fixed for each
class as its rate of assessment; the lands comprised in each
separate class would then be assessed alike, though the rates
for the several classes would be different. This seems all
that is necessary to secure equality of assessment."
From these papers it distinctly appears tp.at neither in the
year 1827 the Board of Revenue, nor, in 1828, the Govem-
ment of Madras, supposed that any valid legal objection
existed to the revision of the assessment, or to the raising
of it beyond the kadim beriz even where the lands were
held on muli tenure.
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BOMBAY HIGH COURT RIPORTS, 187
In a letter of Mr. Babingt.on to the Board of Revenue, 1875.

dated 15th August 1828 (p), he refers toa letter of the 20th VvAKUNTA
BAPUJI
September 1825 (q). written less than a month after his v.
letter of the 24th August 1825, of which we have been GoVJ:BoRN»ENT
OJ' MBA.Y,
speaking, in which letter of the 20th September 1825 he
had treated the beriz as a limit not to be exceeded. " This Judg,nenl.
opinion, " he said, " I found was entertained so generally by
the European authorities in the province, that I considered
it a. fixed and establ~hed rule, and did not in consequence
investigate deeply into the grounds of it. My subsequent
inquiries have given me reason to think that it is not so well
founded or indisputable as I had assumed it to be, and that
the Government, at least, is not committed by any pledge
not to increase the beriz on any estate found to be lowly
assessed, particularly in cases where the assessment may
have been founded on fraud and imposition _on the part
of the rayut or even misconception on that of the local
authorities." In our printed copies the beriz to which Mr.
Babington is represented as referring is that of Fusli 1229
(1819), which would be the tharav beriz, but it has been
admitted on both sides that 1229 is a misprint for 1209,
the year for which Munro settled the jamabandi.
Early in the year 1831, tumultuous assemblies (r) of
the rayuts having been held in Kanara (s), the Madras
Government commissioned Mr. H. Stokes to inquire into
the causes, and especially directed his attention to the
"extent to which the assessment should be permanently
reduced where it may have been already ascertained to be
too high, and the best means of raising it where it is far
below a moderate rate of demand, and no good reason can
be assigned for relieving the estates from their just pro-
portion of the public burthens. " It is difficult to recon-
cile that direction with any belief on the part of the Madras
Government at that time that it was pledged never to
exceed the kadim beriz. Mr. Stokes, in his report of the
(p) Parae. 70, 71, Exhibit 19, Printed Boob, VoL Ill, pp. 71, 72.
(q) Not in evidence.
(r) Styled 'koote' in some of the correspondence.
(a) Exh. E. E., dateq. 8th Feb. 1831, Pri.uted Boob, VoL ill., p. 153.
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188 BOKBA.Y HIGH COUBT DPOBT8.
1875. 12th Januaey 1888 (t), after discussing the inequality of

VvAKUNl'A the distribution of assessment and the causes of it (para. 59,
B.U:,~JI p. 171), and, as we understand him, recommending, as a
0 i;~,::; temporary measare, the extension of the tharav principle to
Ankola, Soonda, and Soopa, said:-" The survey (u) should
Judgment. be completed, but it should be rather for the purpose cA
discovering the extent of and comprised in each varg, and
its income, by ascertaining boundaries, and learning the
rent produce, than for calculating the assessment on any
new principle. It should be considered that the measure
is intended rather for the purpose of lowering the demand
where it is too high than for raising or even equalising it.
It is desirable that the assessment should eventually be
framed on the same model throughout the district; and in
the meantime I think it better that the settlements should
be made, as formerly, on estates rather than on fields." And
he advised an extension of the same system to " the estates
denominated sarkar-gaini, the proprietary right of whic1l
is assumed to have lapsed to Government.'' Sabseqnently,
however, he says :-
" 78. But to determine whether a more extensive inter-
ference with the land revenue will be expedient, and at the
same time to afford the most convenient means of making it,
there is a measure, which, after much reflection, I consider
likely to be attended with greater advantages than any that
could be devised. I mean a registration of deeds relating to
landed property.
" 79. In this district where land is so valuable, and
almost all of the estates are private property, and have been
so from time immemorial, and where consequently leases
and transfers by sale or mortgage have been of frequent
occurrence, the most valuable materials for an assessment
might easily have been collected in the period since we
acquired the province."
Having mentioned that this was the opinon of Munro
in 1800 (v), and that a register of all lands that became the
(t) Exhibit F. F., Printed Books, Vol. III., p. 156 et ,eq.
(u) That muet have been on the pahani method.
(v) Bsbibit A, page 44, para 4.
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.BODAY HIGH COURT RBPOBTS, 189
subject of litigation had been directed by the Board of 1876.
Revenue in 1801, but that it did not seem to have been VvuUNT4
long kept, a.nd that Mr. Thackeray recommended a. re- B~~.n
gistration of rents in 1807 as a bam for a revision of the GovnNlllllT
. did not appear to bave been OJ' BollCBA.Y,
assesament , b nt his suggestion
adopted, and that it was subsequently proposed by Mr. Judgmfflt,
Graeme for Ma.la.bar, Mr. Stokes recommended that a. regis-
ter of deeds relating to landed property should be established
in the provinces on the western coast of the Madras Presi-
dency (Ka.na.ra. and Ma.la.bar). Speaking of its advantages
and objects he said :-
" 83. Viewed in connexion more immediately with the
revenue administration of the district, most important be-
nefits might be expected from the measure. The actual
rental of the whole province having been once ascertained,
the assessment might at any time be fixed at a given rate
of it, which would bear with almost exact equality on ea.eh
separate estate; a.nd the rental varying with fluctuations
in the value of money and produce, &c., the assessment
would also accommodate itself to these changes. ,,
" 85. When our knowledge of the income of ea.eh pro-

prietor is thus complete, 811,Ch gerleral modification in the
aasusment 'TM,y be made as shall then appear ezpedient,
should a diminution in the public expenditure, or a.nincreas-
ed income from other sources, admit of it; the most de-
sirable mode of effecting the equalization of the la.nd-ta.x
would unquestionably be by reducing the higher to a level
with the lower rates of assessment. In the meantime I
do not think the object is-of such para.mount importance
that it ought to be much insisted on.
" 86. I do not think the principle of equalization _unjust.
On the contrary, it seems in theoiy unjust that one man
should be taxed in a greater ratio to his resources than
another. But in the course of a series of years it mast be
remembered that the mischiefs of inequality, so far as
private interests a.re concerned, have in a great measure
yielded to a natural oompensa.\ory process. The most
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190 l!OKBAY HIGH COURT BIPOBTS.
1875. highly assessed estates have been purchased for less money,
Vn1tuNTA the others for more than they would have been ; and to
BAPUJJ
"· reverse these conditions would in effect produce the very
GovuBoIOONT evils that would have ensued from origma· l inequality.
o• llBAY.
Hence, in carrying into effect any measure of the kind
Judgment. proposed, it is desirable that provisions should be made to
· prevent this revolution in the vested rights of individuals.
"87. It would not be expedient to pursue the principle

of uniformity to the utmost, so as to interfere with all
estates that were not assessed exactly at the assumed ratio.
.A. maximum and ~inimnm might be fixed so as to give the
preponderance in the way of reduction. Were it assumed
that the rate of 60 per cent were a fair average, alteration
might be limited to estates assessed below 40 on the one
side and above 70 on the other. The point to be aimed at
is, without any material sacrifice, to remove the existing
inequalities, so far as they interfere with the prosperity of
the country and the punctual realization of the revenue."
Hence we perceive that Mr. Stokes at the close of the

second year of his inquiry in Kanara saw no legal objections
to a revision of the a.ssessment of the province. He thought
that eoch general modification in the assessment might
·be made as might be expedient subsequently to Govern-
. ment obtaining the information which a register of sales,
lf'.a.ses, mortgages, &c., of land might afford. He was disposed
to deal tenderly with landholders, especially with those who
had acquired their lands on terms of purchase governed by
the existing assessment upon them ; bot his proposed re-
vision was not, as a matter of right, to be narrowed to a mere
.reduction of the higher rates to the lower level of assessment,
although he was more in favour of lowering than of raising
existing rates in cases of inequality. He does not hint that
Government was fettered by the kadim beriz; and the exe-
cution of his scheme, as sketched in the 87th paragraph
of his letter, would necessarily often involve a higher aaseB&-
ment than the kod;i,m berii where that was low.
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BOXBAY HIGH COURT RIPORTS. 191
On the 11th of Ja.nuary 1836 the Board of Revenue, in __1_87_5._

their minute (w) of that date, sa.y:- VYAXUNTA
BAPUJI
"19. The remarks of Mr. H. Stokes, regarding cool Govu~

nu.sht (kulnasht (a:) ), concurring as they do with those of the OI' BoxBAv.
Commissioner in the 59th paragraph of his report, are deserv- Jwlgmen1.
ing of particularattention, and show the neceasity of caution in
confirming absolutely the assessment upon those estatea even
which are cla.saed as paying the full standard rates. The
Board think it advisable to defer the final determination
regarding them until the inquiry into the state and circum-
stances of the other estates has been concluded, as it seems
very probable that part of the land for which remission is
claimed by the owners of the latter as being cool nusht has
been clandestinely added to some of the former." These re-
marks are inconsistent with the supposition that the Revenue
Board regarded the kadim beriz as an absolute limit to assess-
ment.
The minute of the Board of Revenue of the 20th March
1837 (y} treats of lands in Soopa both below and above the
ghauts. The Board sa.ys of the~ " that it is inexpedient at
present to attempt to regulate the permanent assessment
before them as they now sta.nd. They think, however, that
it will tend to produce permanency of occupation to sub-
divide the estates which are partially cultivated, and fix a
just assessment upon the cultivated portion, giving kauls for
reclaiming the waste. The Principal Collector will please to
consider this suggestion." Here the Board deals with the
readjustment of the assessment as a question of expediency
and not as any question of right. The Government of
Madras, in commenting upon that minute and upon the pre-
vious proceedings of Mr. Viveash, already mentio11ed, spoke
( z) of " the necessity for the greatest caution a.nd considera-
tion in every measure connected with the revision of the
assessment," and said that the necessity for "a complete
(w) Exhibit GO .. para. 19, .Printed Books, Vol III., p. Ul5.
(x) Yi<k aupm, p. 82, note (i), and p. 178.
(y) Exhibit No. 22, para. 31, Printed Books, Vol III., p. 100.
<~> Minute or lOthMay 1837, Euibit 23, Printed Boob, Vollli., p, 101,
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192 BOJDAY BIOB 0011ft UPOB!'B.
um. revision of the 888888ment of the greater number of the

VBY..:mrr.&
"'"1n estates in Kanan. District remains as n'l'OAnt
-o- as ever, " and
"· did not give the slightest intimation of a doubt as to ifB
°:~ right to readjust the 888e881Dent.
JfltlpaL Mr. Maltby, who was acting as Principal Collector of
Kanara, in his letter of the 22nd July 1839 (a) to the Board
of Revenue, in descnoing the revenue system which pre-
vailed in his district, after observing that it did not afford
any evidence on a point then under the consideration of
the Government of India, namely, the respective merits of
the village and the rayntvari settlements, inasmuch as the
t.enure of land in Kanara, though leaning towards the
rayntvari system (b), essentially differed from it in this that,
in the rayntvari system, the assessment was made on every
field according to its class, whereas in Kanara the 88888SIDent
was annoally made on each mrg, or estate in the aggre-
gate (c), and that at the time of the British occnpation of
Kanara " we found a proprietary right in land clearly estab-
lished and acknowledged," which right was vested in a body
of hereditary farmers, each holding his separa.te estate, and
paying his assessment direct to Government, without the in-
tervention of any zemindar or village community," and "the
rights of the under-tenants, whether permanent or tem-
porary, were equally established by the known customs
of the coontry" (d), said:-" The established proprietary
right, joined to a fo:ce<1, (l88el/ament, offers every inducement to
the improvement of the land " (e). In discussing a proposed
revenue survey he said :-" The revenue system which pre-
vails in the province, and particularly the revision of the
assessment which is now in progress, render this a subject
of much importance, but at the same time they render it
one of much difficulty. The revenue of the Government
on the more productive estates is limited by prescriptive
right, the intimation given by our Government that the
ancient rates, or shiet and shamil, will not be increased."
(a) Bmibit A., pp.12'l, 123, paru. 2, 3, 4, 7, (b) Ibid., p. 124, para. 7.
(c) lbwl., p. 122, paru. 2, 4. (d) Ibid., p, 1221 para. 3.
{e) Ibid., p. 124, pva. 6.
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BOJl'.BAY HIGH COUBT REPORTS, 193
There is a manifest incoherence in this concluding sen- 1875.
tence in which "prescriptive right" and "the intimation" VvAJtt1NTA
which Mr. Maltby says was "given by Government that the · B~~JI
ancient rates, or sliist or ehatiiil, will not be increased," a.re GonBoRNMENT
OP IOIA.Y.
treated as identical. And Mr. Maltby, unfortunately, has not
mentioned the grounds upon which he arrived at his conclu- JwlgmtAt.
sion that such an intimation had been given by the Mad-
ras Government. If those grounds were of a nature to
warrant such a conclusion, they must have been different in
character from those now laid before this Court., although
. the plaintiff may be regarded as using his utmost efforts to
prove that such a general intimation was given to the land-
holders of Kana.ra. and its appurtenant districts; and it is
evident that Government has not thrown any obstacles in
his path by withholding such official correspondence or
documents likely to elucidate the case as the plaintiff hl\S
called for. Mingling, as Mr. Maltby has mingled, the al-
leged intimation with prescription, we are inclined to sup-
pose that he meant that the intimation was given many years
previously to his own Collectorship. We cannot omit from
our consideration that his predecessors, Mr. Harris, to some
extent, and still more Mr. Babington, at the outset of their
respective careers in Kanara, appear to have been under the
influence of somewhat similar views, but eventually, as we
have seen, abandoned them, when time and experience
enabled these officers to form opinions independently of
those which were doubtless pressed upon them and their
• assistants (ea:. 91·. Mr. Cotton) by the many persons, espe-
cially the subordinate Native revenue officers, who were
interested iu their adoption. Mr. Harris recommended,
and the Government of Sir Thomas Munro sanctioned, a
course of conduct inconsistent with the supposition that
any such intimation, as Mr. Maltby speaks of, had b~n
given by the Madras Government, or with its authority, to
the rnyuts of Kanara; and Mr. Babington expressely dis-
carded his early opinion that the kadini berii could not law-
fully be exceeded; and Mr. Read, who was for seventeen
years tii.e Collector o( Kanaro and senior to both of them,
D J17-y
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JIOVBAT mmr comrr UPORTB.
1875. and the contemporary and immediate succeesor of Sir Tho-
Vv AKOTA mas Munro, not only was silent as to any such intimation
BA~~Jt or pledge, but adviseii a policy quite incompatible with any
Govnl001'1' knowledge that Government bad been compromised by the
OJ' BoKBAY, acts of Munro. In a. minute of the Board of Revenue of the
Judgmt'lll. 28th Ja.nuary 1813 (/), addressed to the Government of
Madras, in a.rguing in favour of the benefits to be derived
from a. fixed assessment, the Board said:-
" 74. In illustration and support of this opinion we will
adduce, as an example, the provinces of Malabar and Kanara,
where, though no ' permanent settlement , has been formally
declared by the British Government, the ' maximum of the
claims ' of the sovereign upon the lands has long been con-
sidered as established."
The Board here expressly admits that no permanent settle-
ment had up to that time (1813) been formally declared by
the British Government., i.e., no formal intima.tion of a. fine.I
fixing of the revenue in Kanara had been made to the land
holders. It is true that the Board goes on to say that the
maximum of the claim of the sovereign upon the lands had
long been considered as established,-an opinion .which we
shall discuss after first referring to a minute written by the
same Board on the 5th August in the same year (1818),
which (at pa.ge 587, Rev. Sel., Vol. I.) contained the follow-
ing passage:-
" Adopting the sentiments recorded by Lord William
Bentinck in the year 1806, it appears that the Honoura.ble
Court have taken Kanara as the great ' landma.rk by which'
they hope ' to tra.ce out those principles and regulations
which might be applicable to the unsettled districts where
the permanent tenures are to be introduced., So fa.r as
Kanara is concerned, as well as the adjoining province of
:Mala.ba.r, nothing has been done in contravention of these
views. In these provinces, whel'e the land-ta:e i8 happil!J so
moderate that p1'ivate property in tlUJ s<ril is still presened, it
might perhaps be found practica.ble to form a ryotvari per•
(!) Rev. Sel., VoL I., p, 570.
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BODAY ElIGB CCIUBT BIPOBTlJ. 195
manent settlement without any great sacrifice of revenue. 1876.
Accordingly, these provinces were excepted from the oper- VvAJtunA
ation of the general arrangemen~ by which the triennial BA~~n
lease, and subsequently the decennial lease, has been else- GoVERNBo
OF
IUMT
JIUIA.Y.
where established; the system of management has remained
unchanged, because no change was immediately required." Jlldgmem.
And (at pages 594, 595 of the same volume) this further
passage:-
" The Honourable Court must have been satisfied, from
the evidence already before them, that the inhabitants of
Kanara. and Ma.la.bar enjoy no benefits which are not enjoyed
in common by the inhabitants of other parts of their terri•
tory; the very snbliltantial one excepted that the Company
take less as land-tax from them, under a more equal climate,
than they do from their other subjects: and as the Honour-
able Court dwell with approbation on the evidence and opin•
ions contained in the reports of Colonel Munro and Mr.
Thackeray on this subject, it must be inferred that the Hon-
ourable Court are prepared to accede to this sacrifice of rev-
enue (temporary perhaps), without which it would be impos-
sible to extend the same advantages to the inhabitants of
the other teITitories subject to this Presidency."
It will be observed that there is a difference between the
minute of the 28th January 1818 and that of the 5th August
1813. On the 19th May, in the period intervening between
those dates, the Government of Madras had received the
despatch of the Court of Directors of the 16th December
1812 (previously referred to), censuring the conduct of that
Government and of the Board of Revenue for the establish,
ment of decennial leases in certain parts of the Presidency
of Madras other than Ka.nara, with a clause that the rent
should, if approved by the Directors, become permanent,
and strictly prohibiting the settlement of any district in
perpetuity without the previous sanction of the Directors.
In January the Board, which had been up to that time
arguing in favour of permanent settlements, said that
though no formal permanent settlement had been declared
in Kanara, yet the land revenue had long been considered
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~ I
1875. as fixed at a maximum. But after the Board had been

Vu1tt>l(TA censured for attempting to fix the revenue in Cuddapah, &c.,
BJ..PVJl
v. without the previous sanction of the Directors (who re-
OoVJ:BoRioi&NT minded the Madras Government and Board of Revenue of
OJ' 11.UAY.
the Directors' previous orders to the same effect), and when
Judt;ment. the Board was making its defence in August, although it
admits that the rayuts in Kanara and Malabar h!',ve private
property in the soil, inasmuch as the land tax is" moderate,"
says nought as to the land tax being fixed in permanence,
but accounts for the exception of these provinces from the
triennial and decennial leases (to which latter the perpetuity
clause was annexed) by saying that " no change was im-
mediately required;" and also observes that" the inhabitants
of Kanara and Malabar enjoy no benefits which are not
enjoyed in common by the inhabitants of other parts of
their territory; the very substantial one excepted, that the
Company take less as land tax from them, under a more equal
climate, than they do from their other subjects." And here,
again, they do not assert that the land tax so taken was
permanently fixed~
It must be remembered that the opinions of public officers,
contained in their correspondence with Government, bowso•
ever earnestly expressed, or howsoever eminent may be the
writers, do not bind the Government as though those opinions
were admissions made by it, even though :it may receive them
in eilence. For it is uot under any obligation to notice them,
and frequently its most politic course is to refrain from
doing so. 'l'he impossibility of binding Government by the
most solemnly expressed convictions of its servants, thus
addressed to itself, is well exemplified by the four folio
volumes of revenue and judicial selections to which we have
often referred in this judgment, which teem with valuable
matter and numerous opinions upon many subjects, but
often most discordant with each other-of which the con-
troversy as to the respective merits of the zemindari and
rayutvari systems of revenue settl<'mcnt is a signal in-
stance amongst many. V{ o need not, however, to travel
beyond the not very narrow precincts of this caee to learn
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BOMBAY BJOH COURT .REPORTS, 191
that lesson. For notwithstanding what the Board of 1875,
Revenue may have said in January 1813 as to the under- Vv.u:u1'"TA
standing that the assessment in Kauara was permanently B"!.'m
fixed, and without laying much stress on the perhaps Go~MENT
slender indications, which we have noticed, of a disposition oF XBAY,
on its part to recede from that position in August of the {udument.
same yeal', we have seen that, in April 1827, the Board
advocated a general survey and re-assessment for the pur-
pose of an equal distribution of the incidence of the land
and revenue, and warmly repelled the original suggestion
of Mr. Cotton, echoed by Mr. Babington (and subsequently
retracted by him), that the Government could not exceed
the kadim be,-iz. We have pointed out that in January
1836 the Board remarked upon the necessity for caution
previously to any absolute confirmation of the assessment
upon estates paying full standard rates, and we now proceed
to quote a reiteration by the Board in 1843 of the right of
Government to survey and reassess Ka.nara and to equalize
the distribution of the revenue charge upon the lands.
In their comprehensive minute of the 16th November
1843 (c) a state paper, the result of much labour and ability,
the Board of Revenue, in speaking of the inequality in tho
rates occasioned by the improper transfer of assessment from
the estates of influential to those of poor rayuts, say (para.
36) :-" This should be adjusted by a revision of the be1·iz,
not by a sacrifice of revenue." After discussing at some
length the various modes which had been tried or suggested
in former years for redressing this grievance and their in-
adequacy, the Board continues :-
" 69. The only decided remedy which would enable the
revenue officers to introduce a more equable and fair settle-
ment is a survey founded on an entire measurement of tho
lands. The advantages of such a measure, considered by
itself, are indisputable ; the objections urged against it,
and which must not be overlooked, are its expense, its
. interference with the existing state of propel'ty and of
(e) Exhibit I. I., rri11ted Books, Vol. Ill., p, 230.
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198 BOKBAY HIGH COURT hPOBTS.
~~ conveyances executed in anticipation of the p('rmanency of

VvAKUNTA the present state of things, and the dissatisfaction and
B•:,u.1i distrust which would be thus engendered amongst a people

GovBoERNHENT so easily excited as the Kanarese. The expense, no doubt,
OF IIIBAV. •
will be considerable, but it will be compensated in some
J11d(Jmffll. degree by the increased revenue derived from concealed and
misappropriated land. On the other hand, the Government
are in no we.ye pledged to the permanency of the present
state of things, and the prevalence of fraud and encroach-
ment, so amply testified by the voluminous records referred
to in these proceedings, is sufficient to deprive any objections
under the second head of all force. The third objection
might possibly be got over by conciliation and decision.
" 70. In equalising the assessment it is essential t-0 the
welfare of the province that the landlords' rights should be
maintained, preserving them where extant, and restoring
them where invaded, by the pressure of over-assessment.
Care should be taken never to fix the molgal'S' rent at less
than 50 per cent. This will form the basis of the Govern-
ment demand. A more than ordinary degree of care and
vigilance would be required in conducting survey operations
of lands belonging to proprietors who have profited at the
expense of the public revenue. It is not to be expected that
such parties would cheerfully submit to have their advan-
tages diminished by such a process ; and as the owners of
the most profitable estates are almost all men of wealth or con-
nected with the public service, it is to be expected that the
whole weight of their influence would be exerted to thwart
and nullify the results to be expected from a faithful stirvey.
Instances of this influence have been quoted above, and a
former Principal Collector does not scruple to aver that the
accuracy of the tharav was materially affected by such
motives on the part of Mr. Harris' head sheristadar.
" 71. Meantime the unsatisfactory working of the
present clns1,1ification of estates has ·convinced the Board
that no benefit can be expected from persevering in it.
They are of opinion that, pending the adoption of some
more permanent system, the distinctiows of bliart, and
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!OKBAY mGH COUltT REPOl!TB. )99
kambharli should cease and that the settlement should 1875.

be formed, as in other districts, with reference to the re- VvuvNTA
BAPUJl
sources of the land in each estate. The jama.bani!,i accounts v.
should be prepared according to the forms transmitted by GonBoaNMENT
OJI M11AY,
the Board under date 8th February 1830, and care ta.ken to
ascertain the ontturn of all estates unable to pay the full Judgmtnt.
thara.v by special inquiries conducted under the supervision
of a responsible Government officer, w~o should resort to
measurement of the land in all doubtful cases. Of course
all l«iula (lea.see) given to estates to bring them up to tbs
tharav would remain in force. In the surveyed ta.Inks the
survey accounts should form the basis of the settlement,
as at present. It is desirable, moreover, with reference to
the fluctuations properly before adverted to, a.nd to the
concealment practised for the sake of remissions, that the
jamabandi chittas should specify the proprietor of each
vurg, and whether the party, in whose name it is now entered,
is the actual or only the ostensible owner.''
Consequent upon that minute, the Government of Ma-

dras by its resolution of the 2nd of January 1847 (/) para-
graphs 14 and 15, directed the Board of Revenue to request
Mr. Blane, who had then become Collector of Ka.nara, to
report on the propriety of a " general and accurate survey "
of Ka.nara. Upon the 20th September 1848, he made
his report (g) to which we have already more than once
referred. After mentioning that Kane.re. was then in a.
state of greater prosperity than· it had ever previously
attained, and that its population had in forty-eight years
of British Rule increased by 402,000, i.e., at the rate of
sixty-eight per cent. he said that nevertheless the revenue
had remained nearly stationary, and that such insignificant
increase as it showed was in the districts above the ghauts.
He c~ncurs with the Board of Revenue in its opinion as
to "the defective and unsatisfactory nature of the earlier
settlements," and a.dds that "subsequent or Inter settlements,
(/) Exhibit J, J., Printed Books, Vol. III., pp. 242, 244.
(o) Exhibit A., p. 165 tt «'J.
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200 BODAY mGll COUR'l' BBPOBTI.
~ - ns they are entirely founded upon these, must of neoeaaity in

Vv AxuNu a great measure partake of their defects. u " The cause of the
B!~un stagnaut condition of the revenue is," he says," to be sought
OovBo&a!iKENT for in the great inequality in the settlement from the
OW KBA.Y,
commencement ; in the omission to take early measures for
Judgmmt. procuring information upon those points on which the
future correct administration of the revenue wonld much
depend, particularly the extent and resources of the estates;
in the defective principle on which, as it appears to me, the
tluzmv settlement was formed ; and in tbe facilities which
this want of information has ever since offered to the people
for encroaching on the rights of Government, and evading
every attempt to vindicate. its fair claim to a participation
in the growing prosperity of the country" (h). Light as
the land tax appeared as a whole, the extraordinary inequa-
lity in its distribution he thought had not been sufficiently
accounted for. "It seems entirely opposed to the principle
of a uniform share of the produce being paid upon all the
land on which the rekah settlement is said to be founded,
and it is difficult to account for it in any other manner than
by supposing that in the lapse of time, and by the frauds of
the shanbogue,, favoured by each successive change of
government, the true ,·ekah had, in point of fact, been
actually abandoned and lost, and it seems reasonable to
suppose that this had never been the case to so great an
extent as immediately previous to the annexation of the
proTince to the British dominions.'' He next refers to the
disorganisation of the revenue administration as found
and depicted by Sir Thomas Munro on its conquest from
Tippoo, the frequent state of insurrection in which the people
were under his oppressive rule, the combination amoµgst
the principal inhabitants '' to defeat the objects of his Gov-
ernment by bribing its officers at every successive change
of Dewans or Asophs. The use of the old registers of lands
had been prohibited, and a great part of them lost, and the
native accountants or shanbogues by whom these had been
kept had all been dismissed and their places supplied by
(/,) Para, 13.
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BOMBAY JllOH ·COURT REPORTS. 201
strangers. These circumstances, and particularly the last 1875.

mentioned, would in themselves be sufficient to show the VvuuNTA
utter d erangement into which the public accounts had BAPUJI "·
fallen, and the necessity for extreme caution in admitting GovERNMBNT
• O.F BoMBAY.
those which were afterwards produced as genuine. 'fhe
readiest resource the people appear to have had to save Judf;mw,.
themselves seems to have been the falsification of the
accounts for the purpo~e of deceiving the officers of Govern•
ment. It is to this cause that I principally attribute the
excessive inequality .in the assessment in different estates;
and I think it more reasonable when we find such numerous
instances of estates not paying, as noticed by Mr. Viveash,
one-tenth of their produce, and very many not so much, to
ascribe it rather to the success with which influential land-
holders, the sho.nbogues and their relations and friends,
were enabled to conceal the actual state of their farms,
and lower the original assessment, than to the fact of the
old Reko.h having been originally so absurdly low as it is
now often found. To reject this supposition seems to me
to involve the only other alternative, viz : that the principle
upon which the original assessment is said to have been
fixed never had any operation in these estates (i) ." Support-
ing Mr. Blair's observation " that the several additions to
the assessment ma.de under the former Government were
frequently unfairly distributed upon the estates of the
poorer rayuts in order to relieve the rich and influential
landholders from the burden,'' Mr. Blane says " there can
be no doubt that they were so, and not only in the cases of
' the additions to the assessment ' but of the original assess-
ment itself.'' After pointing out the unbounded facilities
which the Shanbogues had of so acting, and that they lost no
oppo'r tunity of reaping the utmost advantages afforded by
their position, he says : '' That they did so, is indeed so
notorious as to render idle a.uy laboured assertion of the
fact. Nothing, therefore, surprises me more than the manner
in which the accounts furnished by the Shanbogues appear
to have been received at the commencement of our adminis-
(i) Para. 14.
B 117-:r
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202 IIOKBAY HIOB COOBT REPORTS.
1876. tration 88 genuine documents which might be relied on. The

VuxuNTA ' shist ' or original assessment of each estate, and the
BAPUJJ
v. 'shamil' or subsequent additions, appear to have been
GonBoRNXENT accepted, and are to this day treated a,.q if they were of
or KBAY.
as~rtained authenticity, and might be relied on 88 represent-
Jwlg,nfflt. ing the actual state of the assessment, whereas there can
be little doubt that the system, described by Mr. Blane, of
favouring influential rayuts and over-assessing the poorer,
was carried to an extent far beyond what he represents,
and that the greater part of these very lightly assessed
estates are the result of such frauds. In some of them,
particularly those situated along the banks of rivers, the plea
of extensive improvements to account for the lightness of the
assessment has no doubt considerable foundation, but in
many there can have been no room or moons of effecting such
improvements, and the plea is one of those subterfuges of
which a Kanarese raynt is never at a loss to avail himself,
and to which the intricacy of the settlement and the absence
of all efficient checks is so singularly favoura.ble {j)". He
then says : " The inference which I am disposed to draw
from these observations is that we were from the very com-
mencement building upon a rotten foundation, and that the
inequality in the assessment, now so much complained of,
was the result of proceeding upon false data"-and '' Had
Sir 'f. Munro remained in charge of the province, there can be
little doubt that he would soon have perceived the absolute
necessity for creating some more secure basis on which to
carry on the settlement than that of a statement 6f the
amount of produce or of rent pa.id, furnished by corrupt
and interested district servants. He would have seen the
necessity of ascertaining what proportion each estate
bore to its assessment, and that it was not less necessary
for the future administration of the revenue to have some
record of the extent and value of the land than of the rent
paid for it. This would have leJ to a measurement of the
land by some process more or less perfect, and probably
to a survey, '' &c. (k). He dwells on the necessity for a
(j) Para. 15. (k) Para. 16.
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BOMBAY HIGH COURT RBPORTS, 203
mrvey. He condemns the sarQ,$0,ri system on which the 1875.
tharav was founded, and expresses his opinion that Govern- VYAXUNTA.
,ment is not pledged to maintain it (l). He next discusses B~un
with much ea.re and ability the subject of waste lands (1n), GovnNJBNT
a.n d th en procee ds t o cons1"der t he question
. of rev1S1on
. · of OJ' BOJOIAY.
assessment (n). He says that a revision of the beriz with Judgmfflt.
the object of equalising the assessment can only be effected in
two ways,-either by reducing the assessment on the highly
taxed lands to a level with those which are lowly assessed,
or by lowering it on the one and increasing it on the <?ther.
The first mode he pronounces to be impracticable as in-
volving too great a loss of revenue, and inconsistent with
the views of the Board of Revenue which had expressly stated
in its minute of the 16th November 1843 (para. 36), that
the " inequalities should be adj~sted by a revision of the
beriz, not by a sacrifice of revenue." Under that system
he observes that in increasing the beriz upon the lightly
assessed estates, the estates, which a.re classed as paying
the full amount of the Kadi-m be1-iz (ancient assessment),
would be those principally subject to increase of assess-
ment and he says'' whether this ancient berizw as at first
ascertained upon sufficiently trustworthy data is not now
the question. I have not hesitated to state my opinion that
it was not ; but it aas been adopted as the limit to the
public demand on those estates, and it must be determined
before any other step can be taken by way of revision,
whether the Government considers itself at liberty now to
abandon this limitation or not." Arguing in favour of the
necessity of relinquishing the kadim beriz as such a limit,
he contends that unless that course be adopted the lands
which had been encroached upon could not bfl brought under
assessment, as there was no record of lapsed or waste lands,
and it would not be practicable to prove the extent of the
encroachment. He condemned the existing Bijavari system
of measurement as affording unlhuited scope for fraud and
litigation and any imperfect or partial survey on that basis
(l) Paras. 21, 22, 23, 24, et ,eq.
(111) Paras. 30 to 54. (n) Para, 55.
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~ I
204 BOJIBAY HIGH COURT REPORTS.
1875. such as the pahani mode adopted by Mr. Harris in An kola

~-;;;;- and SoondaBalaghaut (o). He then says:-" The above
&:~JI considerations have led to the fullest persuasion on my part
GoVBBollNlRNT that any attempt at a revision of the assessment, founded
OF JlBAY.
upon the old system, and the records which now exist,
J ~ . would lead to much confusion and expense, and t.o the
certainty of ultimate disappointment. The great object of
Government appea.rs ever to have been to effect a settle-
ment which it should.be able to pronounce permanent and
fixed, and th3 reaaon far its having u·ithheld it. sanction
from the settlements bef01•e effected has been a well-founded
suspicion of the accui-acy of the information upo1~ which they
were based (p). He then observes that the only practicable
method of obtaining the information requisite for tha estab-
lishment of such a revenue is " that pointed ont by the
Board, viz., a survey founded on an entire measurement of
the lands/' or as it is now usually styled a e&da.stral survey
{q). He fully acknowledged and desired to preserve " the
valuable private property in the land '' possessed by the
landholders, and he advised that the re-assessment to be
founded on a eadastral survey should be upon an " equitable
and uniform principle,'~ and conducted with that " liberality
and consideration" which had always animated Government
and the Board of Revenue (r), and not" with a view of in-
creasing the general rato of assessment,'' but should'' be
directed mainly against previous and future frauds, and the
hithert,o almost unrestrained encroachments of wealthy
landlords, Brahmans, merchants and others, who are not the
really laborious or productive class, but who, by the various
means" Mr. Blane " bad attempted to detail, have contrived
to l0wer their former rents, and to appropriate, as they
still continue to do, the surplus rent of nearly all the newly
occupied lp,nds which are taken up and brought into culti-
vation by persons holding under them 11.s tenants, instead
of directly under the Government. By this the condition of
the actual cultivator would not seem to be improved, while
(o) Paras. 56 to 67, (p) Para. 68.
(q.) Paru. 68 '° 70. fr) Para. 70.
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the Government is defrauded of its legitimate share" (s). IS75.

Referring to the report in Jnly 1842 of a former Collector, VYAKUNTA
Mr. Blane says in para 71 :-" Mr. Blair has expresseed an B~~n
opinion that the effects of such a. measure as a survey ' would 0: .. 1:'=.
be to overturn the ancient principle on which the land
revenue of Kanara was fixed.' I cannot, I confess, see that Judgmem.
this objection rests on a valid foundation. To me it appears
that it would rather be to revert to or restore that ancient
p~inciple. It conld be no part of the ancient principle of
fixing the rent that the lands of one estate should be surrep-
titiously transferred to another, and that by this and other
fraudulent means some should be saddled with an assessment
so high that it is impossible that it can be paid, while others
are assessed only at a nominal rent. Mr. Blair observes
that the assessment was fixed ' not on actual measurement,
but from the estimated quantity of seed sown in each field,
the aggregate assessment on fields forming the Jama on
each estate.' Granting this, and that the assessment so fixed
was supposed and intended to be a given portion of the
produce of the~o fields, it is necessary to assume as a fact
that the result aimed at was attained with some tolerable
degree of accuracy, for otherwise the principle of assessment
would, in point of fact, have been no principle at all. The
case then appears to stand thus :-We find that the Jama
on the estates doe11 not represent ' the aggregate assessment
on the fields ' of which it is composed according to the
principle on which it is said to have been ascertained, and
that, whereas the principle was that one-sixth or one-
fourth, according to the period we take, of the pro-
duce of the fields or estates should go to the Sarkar, the
Sarkar now takes, from some, three-fourths of the pro-
duce, and, from others, not one-twentieth part. The
principle, therefore, is already overturned. We cannot
trace how this ha.I taken place, but we suspect that it has
been in gradual operation ; that it is the result of frauds,
encroachments and false accounts which we have too readily
accepted as true ones ; and that, in short, the aggregate
(8) Para. 103.
Google
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A•
•
206 BOKB•Y HIGH COURT REPORTS.
1875. Jama of the estates is not what it pretends to be, viz., a

~~ true record of the Sarkar's share of each field ; while the
B~~n plea of improvements, often urged, and admissible to a
Oo"RRBoNKENT certain extent and in some cases, is yet wholly insufficient
o-, IOIAY.
to account for the great inequality now existing. The
Judgmfflt. question, then, arises, whether any measure, which the
Government might adopt for equalising its demand by
reverting to the first principle of taking an uniform propor-
tion of the produce of the land, can fairly be deemed an
abandonment of a principle which has practically ceased to
exist, and which it seeks to re-establish. The history of
Ka.nara shows that such revisions of the assessment have
at former times been thought necessary, and imperfect
and rude attempts have been ma.de to effect them under
Native sovereigns (t); and I can discover no circumstance
which appears to bar the abstract right of the Company's
Government to undertake a similar measure, if it deems i,
necessary and advisable (u)." This lucid report, which is
amongst the documents contained in the book marked as
Exhibit A, and put in evidence on behalf of the plaintiff,
but extensively referred to and relied upon on behalf of
the defendants, concludes by discussing the probable political
•
effect of a revision of the assessment, into which branch of
his subject we are precluded from following the able writer.
Mr. Blane's Report seems to have been for a long time
under the consideration of the Board of Revenue. Mr. Ool·
dingham the second member of the Board, appears to have
written a minute of the 5th November 1850 (v), on the whole
unfavourable to any general equalisation of the revenue. Mr.
Blane, who had in the meantime become third member, in a
minute of the 25th March 1851 (w) mentions a draft minute
of the senior member, Mr. Elliott, in which, in the ma.in, Mr.
Blane concurred; but that draft minute]1as not been given
in evidence, and it does not appear that I was forwarded to
the Madras Government. Mr. Blane, in his minute, mentions
(e) · Vi<u l'Upra, p. 99. (u) Para. 71.

(v) Exh. K.K., Printed Bks., Vol. III, p. 245 . (w) Ibid, p. 2;;1.
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BOlllBAY HIGH COURT REPORTS. 207
that in the then state of the public finances a general sur- 1875.
vey of Kanara would be too costly an undertaking-that a. VuxuNu
survey had been proposed for other districts, and he doubt- B.i.PUJIII,
ed that such a step should be taken first in Kanara. As a Gon:RNXENT
Ol'BoMBAY.
temporary measure he proposed that a small survey estab-
lishment should be attached to the Collector's office to be Judgme,i,.
employed in examining and measuring such estates as he
might " consider the most to require it, and also for the
purpose of assisting him in carrying out the orders of the
Civil Courts for the transfer and sub-division of lands," and
said :-" I am persuaded that it would for many years am-
ply repay its own cost, by the frauds and abuses it would
bring to light." He also expressed doubts as to the advisa-
bility of disturbing the tharav in the districts where it had
been introduced, except in "cases of manifest fraud or en-
croachment, and of needless reduction of the ancient beriz ''
such as he had " given instances of in the Appendix " to his
report " which the Government is by no means called upon
to perpetuate, and has both in reason and equity the fullest
right to rectify when they have been brought to light." And
he so.id : "As an act of indulgence, and in consideration of
long tennre, I would, in no case, impose more than o. very
light additional assessment ; aud with this view I would lay
it down, as a rule, that additional assessment should not be
imposed when it already amounts to one-fifth of the gross
produce of the estate." He said it was for Government " to
detet'mino whether it approves of a general survey either
immediately, or in prospective, or o. more limited measure
for the correction of abuses, and guarding against them in
future, but with less disturbance of the existing tenures and
interests than o. general survey would involve."
On the 8th May 1851 the Board passed a resolution that
Mr. Blane's report of the 20th September 1848 should be
forwarded to the ladras Government. They recommended,
as a temporary measure, the small survey establishment
mentioned in Mr. Blo.ne's minute of the 25th March 1851,
and Mr. Goldingham's minute of the 5th November 1850,
both of which wore forwarded with the resolution to Gov-
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..4
208 BOK BAY HIGH COURT RiPORTS.
1875. ernment. Mr. Elliott would seem not then to have been
----
VYAX:UNTA in Madras, or to have taken any part in the resolution (z).
BAPUJJ
"· The Madras Government, ·on the 29th May 1851, in
~~"::::.1' a minute,referring to the fact that the Revenue Board
had forwarded copies of their last-mentioned resolution
J ~ . and the minutes of Mr. Goldingham ~nd Mr. Blane to Mr.
Walter Elliott, who had taken a priacipal part in former
proceedings of the Board regarding Kaiiara, for his inform-
ation, and that from Mr. Blane's minute it seemed that
Mr. W. Elliott had previously proposed a draft upon the
subject, proceeded to say:-" The Government are anxi-
ous not to add to the present labours of the first mem-
ber of the Board in _his own peculiar province as Com-
missioner, but they would nevertheless be reluctant to
enter upon the consideration of a question of such import-
ance as the Kana.ra Survey, to which Mr. Elliott seems to
have devoted much attention, without having the benefit of
his sentiments upon it. It, occurs to them that Mr. Elliott
might without difficulty throw his draft above referred to
into the shape of a minute, accompanying it with any fur-
ther remarks which might present themselves to him. The
Board will be pleased to forward that draft to the Commis•
sioner, to enable him to give effect to the above sugges-
tion (y) ."
So far as there is evidence before this Court, the history
(so long as North Kanara remained part of the Presidency of
Madras) of the questions of a cadastral survey and of con•
sequent revision of the assessment ends with that minute of
the Government of Madras, and it does not appear either
whether Mr. Elliott ever complied with the wish of the
Madras Government to write a minute upon those subjects,
or whether the Madras Government considered or passed any
resolutions upon Mr. Blane's report of the 20th September
1848, or upon the important questions !ust mentioned, and
so clearly raised in that report. Whether the financial con-
eiderations, mentioned in Mr. Bla.ne's minute of the 25th
(z) Exh. K.K., Printed Bk11., Vol. III, p. 2~.
(y) Exh. K. K., Printed Bb.,Vol. Ill, p. 253.
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BO'KBAT IllOH COURT REPORTS. 209
March 1851, or other reasons prevented the Madras Govern- 1875.

ment from coming to any final conclusions upon those Vvnu11TA
BAPUJI
questions, does not appear, and we do not feel at liberty to 11.
. t
speculat e upon the en b~ec .
GoVBRNllBN't
oJ'BoHBAY,
By an order of the Secretary of State for India in Conn• . Judgmtnt.

cil, dated 28th February 1862, made under the Statutes
16 a.nd 17 Vic., C. 95, Sec. 18, a.nd 21 a.nd 22 Vic., C.
106, North Kana.ra, with the exception of the ta.Inks. of
Kandapur (corruptly Cundaporc), wa.s detached from the
Presidency of Fort St. George a.nd annexed to !he Presi-
dency of Bombay from such date as the Governor General
of India in Council should by proclamation appoint for the
pnrpm!es of the Indian Councils Act.
A proclamation was accordingly issued by the Governor
General in Council on the 15th April 1862, declaring that
North Kanara, with the exception a.ll'eady mentioned, should
be detached from the Presidency of Fort, St. Oeorge and
annexed to the Presidency of Bombay. By Act III. of 1863
of the Legislative Council of Bombay (which received the
assent of the Governor of Bombay on the 4th January 1863
and of the Governor General on the 25th March 1863),
Section 6, it was enacted that the district of North Ka.nara
with the exception of the taluka of Kandapnr, as transferred
from the Presidency of Fort St. George, shall, from and after
the sixteenth day of March 1862, be subject to the Regula-
tions and Acts which are, or shall at any time hereafter be,
in force within the territories subject to the Presidency of
Bomoay. And Section 7 provided that "Nothing in this
Act shall affect any acts done, or proceedings held, or any
sentence passed, or order made in the district of North
Kana.ra previously to the passing of this Act" (a:).
Although the lanp.s of the plaintiff are rice lands, situate
in Soonda payen Ghant (that part of Ankola known also as
the Panch Ma.hale), where Munro has said that all rice lands
belong to Government, and although the plaintiff has not
produced any patta, sanad,or other document of title granting
(i) Reg. v. Vyankauwami, 2 Bom. H. C. Rep., p. 106, 2nd Ed,
B 117-A
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210 BOVBAY HIGH COURT REPOBff,
1875. to him, or to the persons under whom he claims, tne proprie-

Vv AJtu1cu torship of the soil in a.ny of the vargs in his possession, yet we
B~~JI think that the admission, ccmta.ined in the GoTernment boob,.
GovnNMENT that seventeen of those vargs a.re held by him Oil muli tenure,
o,: BoMllAY. most be regarded as establishing in him the hereditary and
Jlldgmail. transferable proprietorship in the soil of those seventeen

va.rgs. The muli, the miraai, the kaniyatchi, the svasthyam,.
and the Janma.kari tenures are merely so many various name.
for the ancient proprietary right of the raynt in the soil
recognized by Mr. Ellis of Madras, Mountstnart Elphin-
stone, Lord William Bentinck, Professor H. H. Wilson, t.he
Madras Board of Revenue,. and other eminent authorities.
But that is a right subject to the sovereign's share of the
produce. Partial or total exemption from pe.yment of land
revenue being in India ihe exception and not the rn1e, the
burden of proof of partial exemption, which is substantially
what the plaintiff claims here for hi& lands in denying the
right of Government to exceed the Kadim benz or ordinary
assessment, lay upon the plaintiff. The history of the land
revenue of Kanara (under which general name we include
Soonda, Soopa, and Ankola) as already narrated, shows
that although the land assessment of Kana.ra may haTe fluctu-
ated less in extent and more rarely in occasion than the land
assessment of many other provinces of India, yei that assess·
rnent did in fa.et vary frequently in both of those respect.a, and
almost always in the direction of increase. Whether the
limits of one-sixth in peace., and one-fourth in wa.r., as pre-
scribed by the Hindu Rishis, ever uniformly or even gen-
erally prevailed throughout India,. is very doubtful. For
some centuries past the prevailing rate throughout lndi.
bas ranged from one-half to three-fifths. There is some
historical evidence that one-sixth was in remote times the
rate in K.anara.; but so early as A.D. 1887, i.e., upwards of
five centuries ago, that limit, we have seen, was exceeded by
a. Hindu prince although he affected to adhere to the shastr.
Nearly two centuries before the British conquest of
Ka.nara a.11 pretence of conforming to the shastr was cast
aside by Hindu princes of the house of Bednore, who
openiy discarded the rate of one-sixth, by adding SO per
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IIOKBA.Y HIGH COURT REPORTS. 211
cent. to the assessment, and afterwards various additions 1875.

were made to it at the pleasure of the ruling power for the VYAs:uNT.1.
BAPUJI
time being. Even admitting that at any time the moderate o.
assessment introduced by Akbar, and continued perhaps GovsBoRNKBNT
OJ' KBAY.
even favourably modified by Au.ra.ngzib, in othel' parts of
India prevailed i.n Ankola or Soonda, it is manifest that Jwdgr,unt.
their co-religionists, Hyder Ali and Ti.ppoo Sa.heh, departed
from it, as, according to the Hani6.an doctrine professed by
Akbar himself, they were at perfectly liberty to do.
The uniformity and moderation of the assessment under

the most civilized Mahopieda.n Governments such as those
of Akbar or Aurang11ib were the result of what they rightly
deemed a wise policy, beneficial alike to the governor and
the governed, and not of guarantee to or .contract with the
landholders. Not only Akbar, but the Adil Shahs who
ruled in Kana.re. before him, had periodical revisions of the
land assessment in Soonda and Ankola, which revisions were
wholly incompatible with immutability of the land's liability
to contribute to the necessities of the State. During the
dynasty of Hyder Ali and Tippoo there was no limit to
the right of as'*'ssment except the pleasure of the ruler
on the one side and the capacity of the land and its
cultivators to pay on the other. l'hese considerations lead
us to the conclusion that the plaintiff has wholly failed to
prove that permanency of the rate or amount of assessment,
or, in other words~ partial exemption from liability to pay-
ment of land revenue. was a.n element in the Muli tenure
in Kanarn for some centuries before the British conquest
of that province in 1799, The opposite proposition has,
in fact, been established by the narrative of Sir Thomas
Munro on which the plaintiff relied.. In speaking of a fixed
assessment as existent in Ka.nara, MI.Ull'O must have done
so comparatively and not positively. He merely meant that,
previously to Hyder Ali's conquest, the assessment was lighter
and less frequently varied in Ka.nara than in most other
provinces, and being lightel' the landholder had such an
interest in the land as rendered it saleable and therefore
constituted it private property. We have referred to passages
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212 BODAY HIGH COURT REPOltTS.
1875. in the voluminous documentary evidence before ns which

VY AXUNTA establish that this was not only his idea of private property
BAPUJI
v.
in tlie soil of India., but also that of the Historian of Mysore,
GovitRNMJCNT the Madras Board of Revenue, the Government of Madras,
0 ' BoHBAY. and the Court of Directors. As a final instance of Munro's
ludqment. opinion that, although a fixed rent would be a valuable, it
is not an indispensable element in private property, and waa
not then an ingredient in the Mnli tenure of Kanara, we
shall mention the sentence with which he opens the 4th
paragraph of his Report to the Board of Revenue of the 31st
May 1800 (a), where he says:-" I have been the more
particular in describing the obstacles I met with in .the
settlement of Kanara, because, (e:ir;cept in the districts,
claimed by Polygars,) they originated entirely in the inha-
bitants having e>n<:6 been in possession of a fixed land rent,
and in their still nniversally possessing their lands as
private property/' The fixity of the land rent, such as it
may have been, had then perished, but the private property
remained in the landholder, the m14lavargdar.
It remains for us briefly to state our reasons for holding
that the land revenue payable by the plaintiff has not be-
come nnalterably fixed in law since the British acquisition of
Kana.re..
We have shown that Munro had no authority from the
Government of Madras or from the Governor General so to
fix it; that he merely settled the revenue for a single year
granting temporarily a general but not a universal remission
for that year, Government carefully reserving all then existing
principles of assessment. What these were at the time of •
conquest in 1799 has been stated; fixity of land revenue was
conspicuous in its absence from amongst them. A permanent
settlement of the Zemindari class was for some years under
consideration for Kanara, as well as for other provinces in
Madras. Munro, at the desire of Government in the year
1800, gave his opinion as to what he conceived to be the only
practicable approximation to such a permanent settlement
(a) Ex. A., p. 8.
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in Kana.re., but he strongly advised that none such should be 1875.

attempted,-that the rayutvari system was preferable for VvA1tu:11u
BAPU.Jl
India in general, and Kanara in particular ; and that there 11•
should be a fixed rent; but not, as we think, so absolutely o;;i~=.

fixed as to be beyond the power of the Executive Govern-
ment to enhance it if justice or necessity required. Even if f"'1gmeat.
he did mean an absolutely fixed rent, he himself certainly
did not so fix it, and he neither 4ad, nor assumed to have
authority to make any such la.sting arrangement. It would
have b~en incompatible with the Zemindari settlement then
under consideration,and fora long time the favoured scheme of
the Home and Indian Governments. Authority to establish a
Zemindari settlement ~n Kanara was actually conferred upon
the latter by the former, but was withdrawn before it was
put into execution in Kana.re., and any final settlement
there forbidden unless made with the sanction of the Home
Government. The Madras Government, no doubt, desired
that the land assessment in Kanara should be more equal
and steady, and that the cons~nt system of remissions should
be abandoned. Experi~ents with that object, especially
the tharav, were tried by the Collectors and Board of
Revenue; but whatever may be the binding force (if any) of
1,he thamv, which was never e:dended to Ankola, Soonda or
~oopa, we cannot find that either the Madras Government
or the Court of Directors ever sanctioned in Ankola or
~oonda the general establishment of an absolutely fixed
rent. There certainly was not any express sanction of it
~y those authorities, and it seems impossible to imply a
sanction merely because for mAny years subsequently to
Munro's time the rent fixed by him for Fusli 1209 rc-
ina.ined unaltered, when we recollect the discussion that was
going on between the Governtnent and the Board of Rev-
enue and Collectors as to what should be done in Kana.re.
to remedy the inequalities in and check the frauds upon
the revenue. What the settlement of land revenue should bo
was the subject of a correspondence extending over sixty
years, and that question seems to us to have been as much •
u.ndetermined in 1861, when North Kanara was transferred
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214, BOKBAY RIOB COURT REPORTS,
1875. to this Presidency, as in 1800 when Munro quitted Kanara.

Vv.u:uNTA for the Ceded Districts, notwithstanding, the possession,
BAPU,11
"· by the Presidency of Madras, of the costly advantages of
GonBoa1r•DT a Board of Revenue to aid in the settlement of its fiscal
OP KBAY.
questions. The Government of Madras seems, so far as
Judgmfflt. we can perceive, to ha\'e preserved to the end the same
cautious attitude which it adopted in its earliest resolution
upon the first despatch of Sir Thomas Munro-a resolu-
tion, stamping the remission then made as temporary, sig-
nifying an intention to preserve "existing principles of
assessment" undiminished, and asserting that the assessment,
then proposed by him, " cannot be considered an adequate
revenue for Kanara1' even "with referenee to the principles
of the Rekah.'' How inadequate it was with reference to
those principles, and how grossly unjust in the inequality
of its incidence, were facts proved to demonstration by Mr.
Blane, and were the subject of comments by other Collectors.
The assent of Sir Thomas Munro's Government to the pro-
posal in 1822 by Mr. Harris, to take one-third of the gross
produce, showed most clearly that the former did not
conceive itself to have been pledged by Sir Thomas Munro,
or his successors in the Collectorship of Kanara, either
to the maintenance of the Rekah itself or of the kadim be,u
of Fusli 1209. Strong opinions in the course of the Ka.nara
correspondence were, no doubt, expressed from time to time
by some revenue officers with reference to the fixity of
land revenue in that province ; but, as we have already aaid,
the opinions of individual officers or even of the Revenue
Board, given in confidence in their correspondence with
Government, cannot operate as a guarantee by Government
itself. In construing written grants from the Crown to the
subject, the well-known rule is that, if the grant be not
clear but ambiguous, it must be interpreted favourably to
the Crown. " In no species of grant," said Cockburn, C.J.,
" does this rule of construction more especially obtain than
in grants which emanate from and operate in derogation of
• the prerogative of the Crown" (b). Lord Stowell said that
(b) Feaihtr v. TM Queen, 6 B. & S. 2M, 285.
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the rule was based "upon this just ground, that the prero- 1875.
gatives and rights and emoluments of the Crown, being con- Vn1tUNT.a.
BAPUJI
ferred upon it for great purposes, and for the public use, it ,,.
shall not be intended that such prerogatives, rights, and GoVllBoRNMmrr
OJ' MBAY.
emoluments are diminished by any grant, beyond what
such grant by necessary and unavoidable construction shall J""1g,MAI.
take away " (c). If the right created by the Crown in
favour of the subject be clear, this Court will enforce it and
has enforced it (The Sub-Collector of Colaba v. Mehendale
(d) ), and has done so notwithstanding an attempted
revocation. The Collector of Ratndgiri v. Vyankafrao N.
Surve (e). If it bo the duty of the Court not to enforce the
written grant of the Crown unless it be clear and unambi-
guous, it is not too much to say that, at the very least, it is
equally incumbent on the Court to ascertain beyond doubt
that the Crown has intended to part with its prerogative, to
which it has succeeded by right of conquest, when the
evidence, offered in proof of such an alienation, is not any
grant or sanad or any entry in a Government book admitting
that the land is subject to an invariable rent or is partially
exempt from payment of land revenue, but is sought to be
spelt out against the Crown from the acts and statements
of its officers, and mainly from the circumstance that the
Crown has not been pleased to exercise its prerogative of
enhancement, as regards the plaintiff or those under whom
he claims, since the Christian year 1800. Keeping in mind
the rule of construction as to grants by the Crown in
derogation of its prerogative, we are very far from being
satisfied that the Government of Madras has, on behalf of
the State, parted with the right to augment the land tax.
A waiver of the prerogative is not to be easily implied from
the correspondence of its officers, unless they have full au-
thority, and their language be clear and unequivocal. No-
thing could be more lax and ambiguous than the way in
which some of them, and notably Munro himself, used the
term ' fixed.'
(c) TM Rebekah 1 C. Rob. 227, 230.

(d) 10 Bom. H. C. Rep. 216. (e) 8 Bom, H. C. R. 1 A.. C. J.
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216 BOKBA T HIGH COURT REPORTS.
1875. The uniformity of the payments received by Government

VvAKUNu in respect of the plaintiff's lands ever since the year 1800,
BA:~JI and the general testimony of Mr. Shaw Stewart and other
OoVBRNMBNT less important witnesses as to the Kadim beriz not having
01' BoXBAY. •
been exceeded, have been much relied upon for the plaintiff.
Judgmml. We proceed to notice the law on the subject.
The rule of the Hindu Law, were we at liberty in
such a case to look to that as a guide, is that adverse pos-
session for a considerable time would as between trubjects give
a good title-see Jagannatha's Dig., Book V., pl. 395, 396,
quoting Brihespati and Vyasa, and see Smriti Chandrika,
Cb. XVI. p. 15, and 10 Born. H. C. Rep. 450, 451-but not
so as between a subject and the king. In Roer and Mon-
triou's translation of Yajnyavalkya at piiges 15 and 16,
pl. 24, 25, that Rishi is represented as saying : -
" If one see his land in the possession of another and say
nothing, it is lost after twenty years: moveables after t.en
years, excepting pledges, boundary disputes, deposits with
. specification, property of the monarch, of women, and of
those learned in the Vedas." And Nilkantha in the Vya.va-
hara Ma.yukha., Ch. II., Sec. II., pl. 7, after referring to
Katyayana, quotes Narada thus :-" A pledge, boundaries,
a minor's estate; deposits both specified and unknown.
women ; the property of the king, and that of crotriyas
are not lost to the owners by another's possession of
them" (/).
(f) The passagee in Narada relnt.ing to tbia subject are rendered into
English by Dr. Jolly in bi, recently published tramlation thus:-
" 9. Pledge&, bonno.aries, the property of children, common depoeit..
a,ealed deposits, women and goods belonging to the king or learned Brahmana
are not lost to the owner through their being po886118ed by a stranger."
"10. Even pleclges, &c., are lost if strangers have enjoyed them for
twenty years before the owner's eyes ; the property of women and of kings
la excepted from this rnle."
" ll. The property of women and kings can neTer be lost, enn though
it be enjoyed for hundreds of years by strangera who have no title to it."
The Hindu Law also resembles the English Law in giving preference Lo
debts due to the Crown. Vyav, llayukha, Ch. V., S. IV., pl. 9; ts Bom.
H. C. Rep. 23, 49, O. C. J.
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BOKBAY RIOJL COURT RIPORTB, 217
The Mahomedan La.w does not recognize lapse of time as 1875.

a good defence even a.s between subjects, still less as against VYAKUNTA
BAPUJI
the State (g). "·
The rule of the English Common Law is, as well known, ~;1'::'.=.
nullum tempus occurrit regi, that is to say non-user of the
royal prerogative does not destroy it. Both here and in Jiulgment.
England that rule has been restricted in certain cases by
legislation, which allows time to give a prescriptive right
aa against the Crown. For such restrictive legislation here
we must first look to Bombay Act VII. of 1863, Sec. 21,
(h.) of which section the commencement and Clause 1 only
are material in this case.
" Sec. 21. Claims to exemption from payment of land
revenue in virtue of prescription shall be admitted under
the following circumstances:-
Clause 1st. When land, situated in districts ceded by or
conquered from the Peishwa after 1803, is proved to have
been held by any person, his heirs, or others deriving right
from him, wholly or partially exempt from payment of land
revenue, under a tenure recognized by the custom t>f the
country, for sixty years in succession next preceding the
date of this Act, or where land situated in any other district
is proved to have been held in like manner for thirty years
as aforesaid."
The latter pa.rt of that clause, viz. that " When land sitna.t-
ed in any other district is proved to have been held in liko
manner" (i.e. "wholly or partially exempt from payment of
land revenue under a tenure recognized by the custom of
the country ") " for thirty years 'as aforesaid "-i.e. thirty
years in succession next preceding the date of the Act,
" claims to exemption from payment of land revenue in
virtue of prescription shall be admitted,'' is the only portion
of that enactment bearing upon such a case as the present,
but does not. help the plaintiff, inasmuch as, although he or
(g) An incorrect etatement to the contrary by the Bengal Committee
of Circuit ia to a certain extent denied in the preamble to l'e .1g. Reg. II,
of 1805.
(h) Bombay Act II. of 1863 only applie11 to those part& -.f th11 Preei,
dency of Bombay in which Act XI. of 1852 were iD fon:e. Of theee
Kanara waa not one.
B 117-B
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~
218 DOlfBA Y RJGR COURT REPORTS.
1876- his predecessors in title may have held the vargs mentioned
VvAxuNTA in the plaint for more than thirty years by a title recognized
BA.PU.JI
v. by the custom of the country, he has, in our opinion,
GonBoRNMKNT failed to prove that those lands have been so held either
o• MBAY.
wholly or partially exempt from payment of land revenue.
Jtldg,nnt. As the plaintiff's case does not fall within tJ,at enactment,
it is unnecessary for us to consider what the effect upon it
is of Bombay Act I. of 1865, which is the next to which we
must look in order to ascertain whether the Crown is
restrained from enhancing the plaintiff's assessment. Its
preamble recites not only " the desire of Government to
equalize assessment," bot also that "it is ·proper to
maintain by law, during their currency, all existing settle-
ments which have been. ma.de under the authority of Gov-
ernment." Had the Madras Oovernment, with due author-
ity, ma.de a perpetual settlement with respect to Kanara,
such a settlement notwithstanding the terms "during the
currency " might fairly be contended to come within the
scope of this recital. The 25th section enacted " That it
shall be lawful for an officer in charge of a survey to assess
the land revenue, under such general and local rules as may
be in force in the survey under his charge, all lands culti-
vated or uncultivated, and whether hitherto assessed or not,
provided that such assessment shall not be levied for more
than one year until the sanction of the Governor in Council
shall have been obtained thereto, and provided that it shall
not be leviable from any land held and entered in the land
registers as wholly or partially exempt from payment of
land revenue, except to such amount as is in accordance with
previous practice, or any law which has been, or may here-
after be, enacted relating to lands so held." The 49th
section ea.acted that "the provisions of this Act shall not,
except for the purpose of defining village boundaries, bo
applied to alienated villages." " An alienated village" is
by Cl. E. of the Glossary (Sec. 2) of the Act defined to bo
" a village held and managed by private individuals, eI·
empt from payment of land revenue or under Act II. or
VII. of 1863 of the Council of the Governor of Bombay, or
under a grant or lease fixing the Government demand in per-
petuity." The learned counsel for the plaintiff, while admit·
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BOMBAY HIGH· COURT R&PO&TS. 219
ting that Bombay Act I. of 1865 is wide enough in its terms to 1875.
----
embrace Kanara, yet, upon tho theory that its land revenue, VYAKUNTA
before and at the time when North Kane.re. was transferred BAPUJI v.
to Bombay was unalwra.bly fixed, contends :-lst. That the o;;-:,~:~~
Bombay Legislature could not have intended to be guilty of .
such a. breach of faith as to have rendered North Ka.na.ra Judg-.ment.
assessable at the pleasure of the Bombay Government and
its re,ienue survey officers, and in support of this view he
referred to several passages in the A~t. Secondly, that, eveD
if such were the intention, th& Bombay Legislature had not
authority to pass an Act so opposed in spirit to the Royal
Proclamation issued in 1858 on Her Majesty's ta.king over
the Government of India from the East India. Company.
We have stated that, in our opinion, the theory upon
which both of those arguments rested cannot be maintained.
The plaintiff has failed to prove that, either before or at the
transfer of North Kana.re. to Bombay, the land revonuo was
immutable or guaranteed to be so. For the same reason
that we think Bombay Act VII. of 1863, Sec. 21, to be in-
applicable to the plaintiff's lands, we hold that the conclud-
ing proviso in Sec. 25 of Bombay Act I. of 1865 does not
save those lands from assessment under the previous por-
tion of that section. The plaintiff's lands, not being held
and entered in the land registers (a term to which we are
willing to give a large and liberal construction ez. gr. the
Collector's books or authorized village accounts) as wholly
or partially exempt from payment of land revenue, are not
protected from au enhancement of revenue by the conclud-
ing proviso. Without giving any opinion on the point
whether the plaintiff's vargs or any one ef them not consti-
tuting a village in itself, but only a part or parts of a village,
could come within the description of "an alienated village,"
it is enough to say that the lands not being exempt from
land revenue either under Act II. or Act VII. of 1863, or
under any grant or lease fixing the Government demand in
perpetuity, cannot be brought within the meaning of "an
alienated village" as defined in the Act.
We may add that, independently of Bombay Act I. of

1865, and if it neve1· had been passed, we see no objection
Digitized by Google
220 BOJIBAY HIGH COUB'I' BBPORTS.
1875. in point of law to the enhancement by the Crown of the

vvamrrA assessment in North Kanara.
BAPU.Jl
11• Though not, in the view which we have tak en of t.w., 1..:_
GonBoRNMBNT case, an important, it is a singular circumstance that no eri-

o.,, lllllA.Y,
dence bas been given on behalf of the plaintiff, nor indeed
JtMlgmtnt. on that of the defendant, to show what proportion the new
assessment bears to the actual gross produce of the lands.
For aught that we know to the contrary, the new assess-
ment may be within the Rishis' limit of one-sixth.
In consequence of the opinion at which we have amved
aliunde as to the power to enhance the revenue, we have
not deemed it necessary to make any lengthened inquiry
into the instances in which the learned Advocate General
has, contended that Government had actually exercised that
prerogative. Mr. Farran contended that in all of those C&9e'4
. the additional assessment was laid upon lands previoasly
waste or uncultivated being taken into cultivation, and Mr.
Stewart's evidence wa.s to the same effect. If that conten-
tion be correct, and the new lands formed no part of the
rayut's varg, the additional assessment would have been satis-
factorily accounted for. But, without further consideration,
we would not be prepared to say that if the newly cultivated
lands formed pa.rt of the rayut's varg the explanation would
be satisfactory. However it is unnecessary for us to give,
and we do not give, any opinion upon the point.
As to the gaini t1args held by the plaintiff, which, he
contends, have, by the conduct of Government, been nu8ed
to the same level as muli-vargs, and therefore are not sub-
ject to enhancement of assessment, it is, for two reasons,
unnecessary to say more than a few words. First-Becat.use
we have come to the conclusion that the J>laintiff has failed to
prove that muli-vargs are not liable to increase of 8886S8ment.
Secondly-Because, even if that were not so, the plaintiff baa
not proved that his gaini-varga are entitled to such protection
as the proclaml\tion (Exh. S.) of Mr. Harris, dat.ed the 6th
of June Fusli 1229 (9), can afford to him. Had he obtained
any ol his gaini-vm·us in pursuance of that proclamation, he
would have received such a mulpatta as is specified in ii.
Ho has not produced any such mulpatta. Nor has he
(11) Printed Bits., Vol. II., p. 22.
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BODAY HIGH COURT UPOKT8, 221
bronght any of his gaini-'DargB within the notification or 1875.
procla.ma.tion of Mr. Vivea.sh (Exh. W. W.), dated the 24th VYAxun.&
October Fusli 1244 (h), by production of such. a mulpatta, &~.n
as there mentioned or by showing that any of his gaini- GovERNHENT
, , h d OJ' BollDIAY,
vargs h ave b een entered a.s muZt,-vargB m t e manner e-
Bcribed in that notification. It also speaks of payment of" the J ~ .
full assessment according to the settlement," which pri,,id
jacUJ means the settlement for the time being, and contains
no provision against ·enhancement of the assessment.
With respect to Mr. Charles Read1s letter to the Tahsildar
of Ankola. (Exh. A. D.), dated 4th October Fusli 1253 (A.D.
1848-44) (i), we should observe that, assuming what has not
been proved, viz., that Mr. Charles Read, the Head Assistant
Collector, had authority from the Madras Government to issue
such a letter, the plaintiff has not shown that the Board of Re-
venue sanctioned any remission upon his gaini-vargs. Lastly
-The Madras Government, in its Resolution of A.D. 1853
(j), which sets forth the terms on which proprietary or
muli right will be conceded to the occupanta of gaini-vargR,
expressly stated that such concession would be ma.de on
the distinct understanding that the "paramount right
of the State to revise or readjust the tax or assessment on
the lands in question in common with all others, is not
affected by such concession ;" and the Revenue Circular
and form of mulpatta annexed to it, then issued by the
Collector of Kana.re. (Mr. F. N. Maltby) in relation to the
conversion of the gaini-vargs, of such persons as might desire
it, into muli,vargs, are conformable to tha Resolution of Gov-
ernment in making that reservation (k). There is not any
evidence that the plaintiff ha.s received even such a mulpatta.
Some remarks have been made a.s to the hardship of this
case upon the plaintiff and of the enhancement of the land
revenue payable by other landholders in Ka.nara. similarly
situated. Bnt our duty is a simple one, namely to ascertain
whether " there is a right on the part of the occupant"
(the plaintiff) "in limitation of the right of Government in
consequence of a Bpecific limit to assessment having been
(h) Printed Bka. Vol. II., p. 23. (i) Printed Bb., VoL II., p. 24.
()1 Exh. XX., Printed BkB., Vol. II., pp. 9ll, 93, 04 and 95, para. 4.
(k) Exh. YY., Priotod Bb., Vol.' II., p. 276,
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NIDAY BIOB coun Dl'OnB.
um. eatabliahed and pn,eet ,ed." If there be soch a right. Reg_
Vn..1:mrr.& XVII. of 18!7, Bee. IT.. Cl. 2, from which we have extmcted
~n the foregoing wends, enacta thM "the u11e sment shall not
Go'l'D]rl(DT eueed nch specific limit.,. The 1st claose of the same
o• :80Jo£Y. •
aectioD enacted Ula$ '' When tbere ia DO right on the part of
JwJga.t. the occupant in limitat.ion of the right of Government to
aaeaa, the aa&e8111DEDt aha& be fixed at the discretion of the
Collector, subjed to the control of Government." H there
be DO soch speci.ic limit to the right of Government to
888888, it ia perfectly clear that the civil courts have not
any jurisdiction to int.erfere in. the 888e881Dellt which, when
discretionary, ia eipn,ssly placed, by the claase which we
have just read, in the bands of tbe CQllector, subject to
the control of Government, and thus, by an implication
which is irresistible, excludes the interference of the Courts
in that case, not withstanding the somewhat loose penning of
Section IX., especially in its second clause.* That second
clause, however, shonld be, and we believe always has been,
both here and in the Civil Courts of this Presidency, read
distributively. The preamble of the Regnlation, and espe-
cially the 1st and 2nd Clauses of Section IV., render any
other construction of Sec. IX., Cl. 2, impossible. Hence,
when a petition is presented to Government by a person
deeming himself aggrieved by a decision of the Collector as
to assessment, Government can deal with the matter as it
may please, the discretion of the Collector being subject to
that of Government; but a Civil Court can only entertain an
action when the legal right or title of the plaintiff to ex-
• That section ia aa follows:--

IX. Fir,t.-The Collector's decision upon sny queetion arising out of
the provisions of the preceding sectiona shall, in the fint. iuatance, be
obeyed aud acted upon aa the rule.
Suonci.-But if any penon ahould deem himself aarieved by any 8Ucb
decision, he m.a.y either pl'llll6nt to the Collector a petition, addressed to
Government praying for redreu. or m&y file an action againn the Collector
in the Civil Court under the ordinary rulea, or he may puniue ooth me-
thods at the same time :-
Tltird.-The Collector Bhall forward to Government without delay, any
petition presented to him under the preceding, clause; but the reference to
Government shall have no effect upon any suit instituted in the Civil C-0urt.
Fot1nh.-No revenue officer except the Collector (permanent or acting).
or an Aseiatant in charge of the Collector's dutiea, shall exerciac the
authority conferred b7 the firat claWJe of thie 1111Ction,
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:.~ · emption or partial exemption from payment of revenne in 1875.

.:--.:r:. consequence of a. specific limit to a.ssessment having been VYAKUNTA
BAPU.JI
established and preserved is in jeopardy. That view of the v.
law has ' we believe, prevailed in this Presidency ever since GoVJCRBoNJntNT
OJ' lllBAY.
the Regulation of 1827 ha.s been pa.ssed, and ha.s been lately
acted upon in two important ca.sesa.t Ratnagiri by Mr. Bird- Judgment.
wood, the District Judge, which were published in pamphlet
form in 1873. This Court ha.s always carefully kept within
.~
..... that construction. See Gadre v. Collector of .Ratnagiri (l),
Sub-Collector of Oolaba v. Mehendale (1n), and Wamnaji
Sadasiv Tha.ite v. the Collector of Ratnagiri and another (n).
The plaint in this case has evidently been framed in accord-
ance with tha.t view, and we do not understand the learned
counsel for the plaintiff, although dwelling earnestly upon
the hardship to his client of the enhancement, to maintain
that, in the absence of a specific limit to the assessment,
we could interfere. Having come very clearly to the con-
clusion that there was not, at the time of the Resolution of
Government complained of in the plaint, any such specific
limit to the right of Government to assess the plaintiff's
lands, we think that we should exceed our duty and usurp
that which is the proper province of Government, were we
to express any opinion upon the propriety of the assessment.
That is a question belonging to the region of politics, and
not within the range of the Civil Courts.
Our findings upon the issues are as follow : -
The first issue-Whether the plaintiff, is entitled to the
absolute ownership and proprietary right in perpetuity to the
lands in the plaint mentioned free from any estate or interest
therein of .t he Crown, save and except the right of the Crown
to the receipt of a certain fixed and unalterable assessment
payable in respect of the same lands r-being taken as a
whole, we must find in the negative, and for the defendants.
The second issue-Whether the assessment made in
1800 by Major Thomas Munro, then Collector of Kanara., upon
the said lands, was a fixed and permanent and unaltera.ble
assessment ?-we find in the negative, and for the defendants.
The third issue-Whether such assessment was made by
(l) 6 Bom. H. C. Rep., 101. (m) 10 Bom. H. C. Rep., 216.
(n) Reg., App. 25 of 1869.
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224 BOJlBA Y HIGH COUBT Rli:PORTS.
1875. the said Major Thomas Munro, as the duly a.uthorised

VYAKUNTA agent in that behalf of the late East India Company, and I
B~~n whether the same was ratified and confirmed by the said I
GovnNHNT East India Company, and whether the same became valid
OF BoJtBAY. • t he Orown ?-we find m
and b•m d•mg as aga.mst • tbe negatm,
.
JtMJ.g,M:At. and for the defendants.
The fourth issue-Whether Bombay Act I. of 1865 in any
way applies to or affects the said lands 7-we find in the
affirmative, and for the defendants.
The fifth issue-Whether such lands are alienated villages
within the meaning and exception of Sec. 49 of the said
Act ?-we find in the negative, and for the defendants.
The sixth issue-Whether the passing of the said Act bJ
the local Government of Bombay, in so far as it purporta
to affect or alter the said annual assessment payable in
respect of the said lands, was ultra vi'Te8 ?-we find in the
ne~tive, and for the defendants.
The seventh issue-Whether the order of the G<rren1-
ment of Bombay, of the 29th March 1870, is null and ,oid
so far as it purports to affect the said lands ? We find in
the negative, and for the defendants.
And the eighth and last ;issue-Whether the plaintiff is
entitled to the relief prayed for, or any pa.rt thereof?-
we find in the negative, and for the defendants.
We must, therefore, make a decree for the defendanlE,
but, having regard to all of the circumstances of the «-,
and to the fact that this cause has, on the motion of too
plaintiff, been transferred from the District Court of
Kanara to this Court, in order that the decision in it •1
serve .as a guide to the former Court in the great number of
suits (said to exceed one tlwusand) more or less of a character
similar to that of this cause, which are stated to have been
instituted in the District Court, we direct that the panies
respectiveJy do bear their own costs.
In order to give to the District Court as much as.'lisunce
as we legitimately could, we have stated our reasons, and
the documents and authoritiea on which we rest them, more 1
fully than would have been necessary if Government had '

been sued by the present plaintiff alone.
Decree for the clefendanta witlwut COBU. >
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1101Dl!Y man COtraT RIPORTS. 225
[ APPELLATE CIVIL J URISDIOTION,]
THE GovERNMENT OF BOMBAY .(Defendants) Appellants. 1875.
December 22.
lliRIBHA I MoNBHA I
1
and 1
forty-five others .. , ... , .. (Plaintiffs) Respondents.

Sur11ey-Aueumtnt-Juriadiction-Bombay Act I. of 1866-Regvlation
X VII. of 1821-Prueription-Bombay Act VII. of 1863.
The jurisdiction of the Civil Courts, in the Preeidency of Bombay, in
matters of revenue and land aue11ment comidered and defined.
The enactments limiting the operation, in the Preaidency of Bombay, of
the maxim nullum ~ptu occurrit regi conaidered.
The land tenurea of the diatrict of Surat described.
The village of Kabilpur in the diatriet of Surat is an udhad bandhijama
village, aettled for hereditarily and of right, by the co-aharera in it, in the
grou at a fixed immutable rent, independent of the quantity of land nnder
cultivation, payable to Government, and, aa auch, falla, in reapeot of the
joint liability of the holders for the revenue in groas, within Seo. 8 of
Reg. XVII. of 1827.
The village of Kabilpur ia land, situated in a district ceded by the
Peiahwa in 180'2 to the Britiah, held by the co-aharers in it and their pre,
deceuors in title partially exempt from payment of land revenue, under a
tenure recognised by the cuatom of the country, for more than 30 yean,
and, therefore, falls within the claims for exemption mentioned in Bombay
Act VII. of 1863, Sec. 21.
Whether Sec. 2, Cl. 1 and Sec. 8 of Reg. XVIL of 1827 and Sec. 21 of
Bombay Act VII, of 1863 are or are not controlled by Bombay Act I. of
1865, the village of Kabilpur ia liable to aaseument to the extent of
Ra. 1,089-13·1 only, inaamuch aa it falls within the concluding proviao in
Bombay .Act I. of 1865, aaving from further aaaewnent a Tillage entered
in the Land Regiater aa partially exempt from payment of land revenue.
Compariaon of this (the Kabilpur) cue with that of Kanara (Vyahnta
Bapuji v. Tilt, GOl/eNlmffit of Bombay) Appendix, ,upra p. 1.
THIS was an appeal from the decree of H. Bird.wood,

District Judge of Surat. The facts and arguments suf-
ficiently appear in the judgment.
Scoble (Advocate General) and Dhirajlal Mathuradas
(Government ;Pleader) for the appellants.
Branson a.nd Nagindas Tul.aidaa for the respondents.
The appeal was argued b~fore WBSTROPI', C.J., and
MILVILt.., J., on 18t~, 14th, and 15th December 1875. In the
, 117-o
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226 BODAY moll COtl'ltT B'IPOBTB.
18'75. COtll'l8 of the argument the following authorities were cit.ed :

Gon1uo1vr Earl Beauchamp v. Winn (a), Vaman Janardhan v. Ool-
0" B~~Y uctor of Than.a (b), Collector of Surat v. Daji. Jogi (c), and
~.u~'x Bub-Oollector of Colaba v. Ganesh Mor&ht:ar (d).
~,..o.NBJU I.
On 22nd December 1875 the following judgment* of the

Court was delivered by
W.ll'l'BOPP, C.J. :-This is a regular appeal from the Court
of the District Judge at Surat.
The suit was instituted by the present respondents, who

are co-sharers in the village of Ka.bilpur (alias Kubirpore),
in the pargana of Supa and Collectorate of Surat. By their
plaint, presented on the 28th of February 1872, and filed on
the 18th of March in the same year, they alleged that they
and their predecessors in title had enjoyed the proprietor-
ship of that village for several centuries, at a fixed rent
never exceeding Rs. 1,174-4 Broach currency, down to
A.D. 1871. They, in effect, stated that, after the making by
Government of an illegal snrvey and measurement of that
village, against which proceeding they had remonstrated by
petition, their rights were infringed by the village being
treated as ordinary Khalsa (Government) land, and its
assessment enhanced to Rs. 4,106-9, which is a ka.mal (full)
assessment. They prayed a declaration that this assess-
ment is illegal, that they are entitled to the proprietorship
of the village, and that it is not liable to a higher assess-
ment than Rs. 1,089-13-1 (Government currency). The
plaintiffs' reason for naming that sum, and not the precise
equivalent in Government currency for Rs. 1,174-4 (Broach
currency) will presently appear. The plaint also claimed a
refund of Ra. 55 in respect of a matter not of any impor-
tance, which was waived by the plaintiffs at the settlement
of issues. Besides the plaintiffs there are six other Desais
(a) L. R. 6 Eng. and Ir. Ap. 223.
( l>) 6 Bom. H. C. Rep., 191,19',195, A. C. J.
( c) 8 Bom. H. c. Rep., 166,172., A. J, c.
( d ) 10 Bom. H. C. Rep., 216.
~ Nou.-ne footnote& to thil judpienure tbo,e of tbe Court ikelf.-&l.
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DOJrBAY moH COURT REPORTS. 227
and eight Bhatelas, interested in the village, whose non• 1875,

joinder as parties has not been objected to in this Comt. Oo'VDlOIDT
OFBoKBAT
The written statement in defence, filed on the 4th of Jnly 1',
ElRIBHA'I
1872, by the Collector of Surat on behalf of the Bombay MONBHA'L
Government, in its 4th and 5th para.graphs (to which a.lone
of its contents the Advocate General deemed it necessary
to call our attention) in effect asserted that the old records,
as well of the Peishwa.'s Government as of the British
Government, show that the proprietorship of the village
is that of Government, and not of the plaintiffs ; that no
uniformly fixed sum had been theretofore levied thereon,
bnt that the assessment fluctuated; and that accordingly
Government had t};ie right, under the Regulation of 1827
and the Survey Act (Bombay Act I. of 1865) and the rules
framed thereunder, to survey and assess the village at
plea.sure (a).
A preliminary question as to the sufficiency of the stamp
upon the plaint was disposed of by Mr. Newnham, then
District Judge of Surat, and does not present itself here.
He also settled the following issues for trial:-
1. Do the plaintiffs prove their right to pa.y only
Rs. 1,174-4 (Broe.eh currency) a.a assessment? (That figure
was subsequently altered by way of amendment by per-
mission of the District Judge to Rs. 1,080-13-1 Government
currency.)
2. If not, is the Collector's action in imposing the higher
assessment justified ?
The trial took place before Mr. Herbert Birdwood, enc•
cessor of Mr. Newnham as District Judge of Surat, and
occupied nine days. Mr. Birdwood has conducted it with a
patient and laborious industry, and an intelligence which
are a.like creditable to himself and to the .administration of
justice in the British Civil Courts in India. He (after
(a) The 3rd para.. of the written 1tatement objected that, the village
being eervice vatan, the 1uit wu not within the juriediction of the Civil
Courts ; but, both in the Dietrict Court and in tbie Court, the defendant.
waived that objection, and declined to contend that the village wu held
for Hnice, The plaintiJli; have throughout denied that it is 1o.
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228 .BOKBAY HIGH COU~T RIPOBTI,
1875,· ta.king time to consider the voluminous evidence, chiefly

GoVDlOIDT documentary) found the first issue (as amended) in the
OJ' ~ .MBAY affirmative, and in favour of the plaintiffs. The second
~Jli•afx issue, therefore, did not arise. He accordingly made his
onlUJ, decree, declaring "that the plaintiffs, as shareholders of
Kabilpur, are not liable to pay a higher sum t.han Rs.

1,089-13-1 as assessment on that village, and that the pro-
ceedings, taken with the object of placing a full assess-
moot upon the village under the Bombay Survey and Set-
tlement Act, are illegal/' and he ordered the defendants
to pay all.costs.
Mr. Birdwood has thoroughly examined and sifted the
evidence in the case. In his appreciation of it, as stated
at length in his judgment, we agree. The discussion of the
evidence by him has been so full that it would be super-
fluous for us now to specify it in detail. We shall merely
refer to some of its salient points. We have had the great
advantage of hearing the learned Advocate General's open-
ing statement on behalf of the appellants. It occupied the
whole of the 13th and 14th instant. He has not spared any
pains to make us acquainted with eve1-y important and
relevant part of the evidence, and has so perfectly dis-
charged that duty that Mr. Branson, for the respondents,
was enabled.to limit his speech to the forenoon of the 15th
instant. The Advocate General concluded his reply in the
afternoon of that day, and my brother Melvill and I have,
after carefully considering the case, arrived at the opinion
that the decree of the District Court must be affirmed. At
the conclusion of the arguments, on this day week, we had
no doubt that it had been satisfactorily proved that the
plaintiffs (respondents) and their ancestors had, with cer-
tain rare and unimportant exceptions which ought not to
influence our decision, enjoyed the village of Kabilpur at a
fixed rent of Rs. 1,174-4 (Broach currency) for a period of
about one hundred and eighty years, if not much longer.
The plaintiffs do not produce any sanad. Whether their
ramote ancestors ever had one has not been established by
direct evidence. The facts, which have been proved, might
Digitized by Google
• BOMBAY HIGH COURT REPORTS, 229
possibly, if taken together, justify us in presuming a eanad; 1875.

but, upon that point, we deem it unnecessary to give any Govn.1uaNT
• •
opinion, •
inasmuc
the Regulation and Acts without actually resorting to such
presumption. There is distinct evidence that the Desais,
v.
~=-~
h as we are able t o dec1'de the case upon OF Bo:auu.Y
under whom the plaintiffs derive their title, were A..D.

1657-58 (i. c., 213 years before the recent enhancement of
the assessment in 1870-71 now disputed) in possession of
the village of Ka.bilpur.
Exhibit No. 32 {dated Sa.mvat 1714, Fusli 1065, i. c.,

A..D. 1657-58), which proves that fact, was originally ob-
tained from the plaintiffs by the defendants, and was put
in evidence in this suit by the latter. It is not a Govern-
ment record, although for some years it has been in Govern-
ment custody, having been produced by the plaintiffs before
Mr. Simpson (Collector of Surat) in 1842, and it was before
Mr. Ravenscroft in 1855. These gentlemen were at those
times inquiring into the tenure of the pargana of Snpa. It
is a. private document, purporting to provide for the. distri-
bution of fifty-one villages in the parga.na. of Sups into four
shares among the Deaais thereof. Those 51 villages are
described as the Desaigiri of Vasi Bhimji Gada.dhar-a.nd,
so far as the terms of the document enable us to form an
· opinion, there is not any reason for believing that even then
these villages were a new acquisition by the ancestors of the
plaintiffs, the Desais. For aught that appears in that docu-
ment to the contrary, their tenure may then have been
ancient. The passage on which the Advocate General
particularly relies is:-" Even should there be any increase
or decrease in the Ja.ma Musha.ha.s (stipulated revenue) of
these villages in comparison with the Ja.ma of the year
1064 FllSli (A.D. 1656-57) Samvat 1713, none shall swerve
from this distribution." Then follows an enumeration in
detail of forty-four villages by name (not including Kabil•
pur) which a.re distributed into four divisions, ea.eh division
being allotted to different persons. Another village
(Modham) is allotted to :Morarji Bhimji. Then four other
villaget, uamely Man.sad, Kabilpur, Toli {Inam) and Tim•
Dig1tizedbyGoogle ,;A
'
DOJIBAY HIGH COURT REl'ORTB.
1876. barni are described as remaining " in the co-parcenership of

Govu:11MDT four shares (sharel'S)." Assuming that the proviso, thai the
or ~~Y distribution of the villages shall not be affected by any in-
!.utJBR~'r crease or decrease in the stipulated revenue, is used
-oll'BJUL
generally with respect to all of the villages, and not with
reference to the first forty-four, it does not by any means
thence follow \hat the Government revenue upon Kabilpur
was not even then a fixed amount. The proviso may have
been made e~ majori cautela by the parties to that agree-
ment of partition, in contemplation of the notorious uncer-
tainty of Native rule and Native policy, and of the frequent
disturbances of the country. Again, the circumstance that
Toli, (which was described in that document as an inam
village, and is admitted to have been so, and was, therefore,
not legally liable to enhancement of assessment) is included
amongst those villages of the pargana to which the proviso
is said to be applicable, shows that we should not be war-
ranted in drawing from that proviso so strong an inference
as that the parties, by making it, intended to admit that
every village in the pargana was liable to enhancement of
assessment. The safest construction of it, therefore, is that
the parties stipulated that the enhancement of the assess-
ment of such of the villages in that pargana, as were liable
to such enhancement (of which there were many), should
not affect the distribution made by that document between
the parties to it.
The next exhibit in point of antiquity ii; No. 67.

Upon it the appellants have argued that the assessment
upon Kabilpur in the Samvat year 1725 (A.D. 1668-69) was
Rs. 921-8 and not Rs. 1,174-4,. We concur, however, with
the District Judge in saying that,-'' It would not be safe
to hold that the sum of money, entered in it opposite to the
name of Kabilpur, represents the whole assessment of that
village.'' Subsequent accounts lead us to think that, in
addition to the sum named, the village was then, at least,
liable to a Moghlai charge, which would have brought the
assessment nearly up to what subsequent document.e es-
tablish as the ordinary amount of land revenue paid to the
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BOKBAY lllGll COURT B'IPOBTS, 281
Native Government. This exhibit is also open to the re- 1815.
mark that its heading induces the supposition that the ob- GoVDIOO!IT
ject of the document was rather to show how the villages OF ~~Y
. were distributed, than what revenue was actually levied HARIBH.&.'1
Mo.111uu'1.
from them for the Government, although to a certain ex-
tent the latter is disclosed.
Exhibit No. 98 (dated Samvat 1748, A.D. 1691-92) re-
cords the assessment to which the several villages in the
pargana. of Supa were then subject. It specifies Kabilpur
as liable to an assessment of Rs. 1,174-4 which is com-
pounded of two sums, viz., Rs. 1,074-12 and Rs. 99-8,
which latter sum is described as .Mughlai (or Moghlai).
Moghlai haks a.re of ancient date. They were portions of
revenue retained by tho Mogul Government (which preceded
that of the Mahratta.s) after all their other possessions had
passed into other hands. They formerly belonged to the
ancestors of the law Nawa.b of Surat. Mr. Elphinstone
Robertson, in his very useful Glossary of Gujarati Revenue
and Official Terms, published in 1865, says (p. 45) that
these Moghlai haks have, for the moat pa.rt, passed into
the hands of mortgagees and purchasers, and a.re distinct
from the chanth levied by the Mahrattas. He adds that
they were levied direct by the parties entitled from the
villages up to A.D. 1842, when, on the o\;>jection of the
revenue authorities, Government prohibited that system of
levy, and thenceforth Moghlai would appear to have been
levied, as part of the assessment by Government, and the
payments were made to the Hakdars direct by Government
from the Government treasuries. He also says that these
ha.ks are to be found in the Su~t Collectorate a.lone. (See
further, a.s to Moghla.i haks, Wilson's Glossary, p. 345.)
This Exhibit, No. 98, contains the earliest mention, amongst
the documents in evidence, of the sum of Rs. 1,174-4 n.s tho
a.mount of the assessment, and is named a Dehbandhi Ta.rija
(summary of village assessment), and is one of the rncords of
Government. Upon it the plaintiffs strongly rely.
Exhibit 68 (Tarija) for Samve.t 1781 (A.D. 1724-25),
shows a total assessment on Kabilpur of Rs. 1,809-2. Of
Digitized by Google
BODAY mmr OOtnl'l' HPOBTS.
this mm, however, only Rs. 1,054 seem to have been col-
1875.
lected, whereof Rs. 987 were received by Government and
OoV'DlOID'T
or8:~YRs. 117 appear under the head of "Ganim." Kesavlal (the
~~~;~ principal witneas for Government) says that the word Ga-
nime.i indicates the dues of the Ma.hratta Government, as
Mughlai (or Moghle.i) indicates those of the Mogul Govern-
ment (b). But having regard to the ordinary proportions
(shown in numerous Government records in this caae) in
which the Mahratta and Moghlai authorities received their
respective dues, there is reason to suspect that in this year
(A..D. 1724-25) the accountant inverted the proper posi-
tions of the Mahratta and Mogul dues, the proportions
assigned in the accounts of these years being altogether
anomalous. Age.in, the sum of Rs. 516-0-4 placed in the
column (in the translation) headed 'Recoveries' wears much
more the aspect of a remission of revenue (or Mafi) than of
a recovery. This appears from an examination of the other
columns. The amount of revenue collected, Rs. 1,054,
added to the second balance, Rs. 288-14 (which we under-
stand to mean the uncollected revenue payable to Govern-
ment and still due) gives the first balance Rs. 1,292-14,
which the figures already ment.ioned would indicate to be
the whole amount of revenue receivable for Government.
If this be so, this account has been prepared on a prin-
ciple somewhat similar to that adopted by Mr. Shaw more
than 120 years afterwards, viz., from A.D. 184-8-49 to A.D.
1868-69. The Rs. 1,809-2 would in that case represent the
whole assessable value, whereof Rs. 516-0-4 were remitted
(b) Ga.nimai (from Ga.nim)-Invaaion, hoetile irruption.
Guim or Gallm. The enemy, the public foe. Mol•worth'a Mar. and
Eng. Die.
Ghantm. An enemy, a plunderer. Forhee' Hind. and Eng. Die,
Ghanim. Plunder, spoil, the acquisition of a thing without labour and
trouble.
Ghanaim. Plunder, booty, spoil, prey (taken especially in a war with
infidels), Johnaon's Arabic, Persian and Eng. Die.
" The Mogul rule wu aucceeded by that of the Kahrattu, who, whatever
may have been their merits in their own country, were in Guzerat mere
plunderers." Mr. Pedder, Bombay Gov. Reoorda, No. CXIV., Ne,r
Series, p. 9.
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BOMBAY IJTOR COURT REPORTS. 233
probably a.a ma.ft and Rs. 1,292-14 were receivable by Gov• 1875.
ernment, which exceeds the normal rate of Rs. 1,174-4 (c). OovzRNMKNT
H owsoever t h1s , , some respect s 01' BoMBAY
' may b e, t b'is account, wbich 1am v.
HARlBBA.,I
(c) Out' remark, as to the probability of the sum of Rs. 516·0-4 repre, ?rloNBIL\ 'I.
1enting revenue remitted, is merely conjectural, and rests upon the follow•
ing grounds :-The fourth column of figures in Exhibit 68, in which that
sum appears opposite to Ka.bilpur, is headed with the word " Recoveries"
in the translation furnished by the defendants (Government). The sixth
column of the same translation is headed with the words "Amount of
Revenue collected," under which heading the sum opposite to the name of
Kabilpur is Rs. 1,054. Those beadings appearing to be similar in meaning,
we referred to the vernacular document, or rather to two copies of it fur,
niahed by the defendants ; one having been filed in this case and the other
in the Yisalpur case, the original account riot having been filed in either.
The heading of the fourth column of figures in both copies is a compound
word, but in one is spelt differently frolll what it is in the other. In one
the word is Wasa.l-chothvo; in the other copy it is Wasal-chathvo. The
Gujarati word W asal (Wnsil, W nsilat, W usul in Hindusta.ni; W Mfil in
Marathi), derived from the Arabie Wsl, when used simply as a re\·enue
term ordinarily implies "revenue collected" and sometimes " revenue"
a.lone. In the sense of "revenue collected'' it is used aa the beacling of
the sixth column of figures in both copies, and bas been rightly rendered
in the translation 118 "amount of revenue collected.'' (See l\Iolesworth's
Marathi and Eng. Die., 2cl ed., p. i38 ; Forbes' Hind. and Eng. Die. [Persian
character] p. 772; Wilson's Gloss., p. 536), The second portion of the eom,
pound word, whether it be "choth\·o" or "chathvo," is not to be found in
any of the dictionaries, but our interpreter is of opinion that it is probably
a corruption of the Sanskrit word "Caturtha," a fourth (from Catur, four)
and allied to the Marathi "Chauth" (incorrectly, but commonly written
"cbouth") or "chautha, '' and the Gujarati word "choth," all of which
aignify a fourth. If the compound word be Wasal-chothvo or Wasal-
ch!thvo, the correct translation of the beading of the fourth column would
probably be "Revenue one-fourth" or "Revenue collected, one-fourth,"
and would indicate a levy of chauth by the Mahrattas A.O. li25 to the
extent of Rs. 516-0-4, which IUlD is not, however, a fourth of the sum
(Rs. 1,809-0-2) given in the third column of figures as the total amount of
the asseument for that year, or of any other sum opposite to Kabilpur in
Exhibit 68. But, further, the sixth column purporting to show the amount
of sevenue collected 118 Rs. 1,054, and the eighth column pointing out that a
portion, at least, of that sum was a Mahratta levy under the name of Ganim,
raised a doubt whether the fourth column was intended to show the
revenue collected by the Mabrattas; And tke difference in the spelling of
the second portion of the compound word, forming its heading, leads ua to
think it probable that the vowels had, u ia frequently the case, beea
omitted in the original, and inserted in the copies at the direction of the
copyiate. If O had been the right vowel, we ahould have the word
~· chOtbvo, which, no more than "chothvo" or "chathvo," i, to be fowul
8 117-D
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234" :BOJIBA.Y mGH COUBT RZPO'lrn.
1876. unlike any other to which onr attention has been directed,
oovnNJHNT shows that Rs. 1,054, only (which is somewhat below the
0 • BoMBu normal rate), were paid to the Government authorities in
"·
H.AJUBJU'I .A.,D. 1724-25.
MoxBKA'L
On a first glance at the printed summary of assessmenta
and payments extending from A.D. 1668-69 to 1870-71.
handed to us by the Advocate General at the commencement
of the argument, several ostensible variations from the normal
in flhe dictionaries, but might be traced to "clih6t," a Gujarati and aJao
Bindusta.ni word (•M in Marathi), meaning "remiai01111." On b t hypo-
thema the oompound word would mean "Revenue remiaio118," and the
fourth column would not eeem '°be redundant or incolllliatent with the
eixth and eighth columns•
.Asauming, however, that this oonjecture is ill.founded, and that the follt'th
column was, as is quite poaeible, intended to lhow a levy of Mahra«a
chauth, we cannot attach any importance to Exhibit 68. The Chriatian
year 1721S was a period of anarchy in Ouzerat, and, therefore, furniahtw
no eafe guide to the extent of the rightful or normal assessment. The
MU8811lmana and Mahrattaa were not only in antagoni,m to each other, but
were divided amongst themselves. Shujaet Khan (the Foujdar of Surat),
u deputy of Sirbuland Khan, was at war with and was eventually defeated
and slain by Hamid Khan, the deputy of Nizam Ool Moolk. Rust.am
Aliltha.n continued the contest with Hamid Khan. Pilaji Gaekwar at 6m
aided one, and, eventually, the other of these combatants, and waa him.self,
u lieutenant of the Senapati (then Trimbaok Rao Dhabarey), embroiled
with Kant&ji Cuddum Banday as officer of the Raja of Batara in levying the
M:ahra.tta chauth, which (together with the Sirdesmuki) 11-u at first mere
freebooting, and was not conceded as a right by Sirbuland Khan until .&.D.
1729-a coneession highly disapproved by the Court of Dehli, and for which
Sirbuland Khan was superseded in his office. (Wallace: The Oaekwar,
pp. 8, 9, 10, 15, 19.) Cot Wallace, speaking of the dispute between Pilaji
Gaekwar and Kantaji, B&ys : "For some time these dissenaiona only caused
flheir demands to fall with heavier weight on the unfortunate towna and
villages, &o. (p. 10.) The Sirdesmuki, granted in 1729, was ten per cent.
of the whole revenue, both on the land and customs with the exoeption of
the port of Surat and the district around it, and the chauth was one,
fourth of the whole collections of the land and cnatome, excepting Surat,
and five per cent. on the revenues of the city of Ahmedabad (/bid., p. 15).
Since the judgmeut in this case was delivered and the above wu
written, the Viaalpur case has bee11 argued before us, and we have, with
the consent of counsel on both aides, procured from Surat the original of
Exhibit 68 (numbered in the Visalpur ca11e as Exhibit 49), and find that
the heading of the fourth column ia '' Wasal.Chothvo" and must be taken
to indicate a levy of chauth hy Mahrattas to the extent of Ra. 516-().4 in
Kabilpur in .u,. 1725.
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llOllB!Y HIGH COURT REPORTS. 235
rate of Rs. 1,174-4 appear. Mr. Birdwood, however, has 18715.
completely suoceeded in showing that the great majority of Govu1oon
those vsriat.ions is only apparent; and not real. The addition °7 ~~r
of the Moghlai, which, though it may not appear in some of
the acoounts, does appear in many of them, and undoubtedly
:~:=i
was levia.ble from a time-anterior to the Mahratta Govern-
ment, explains most of the variations. The difference of
currencies, the deductions in respect of land taken for roads,
the temporary charges for a ta.lati, ha.vildar and majmadar,
and the Thana.va.ri receipts, explain most of the other discre-
pancies quite satisfactorily. (Of these, the difference of cnr-
rency, the deductions in respect of land taken for roads,
and the Tha.navari receipts,. furnish the reason for the Distriet
J.udge fixing the amount of landa.ssessmentat>Rs.1,.089-18-1
Government currency.) The very few unexplained excep-
tions to the uniformity of the assessment, occurring, as·they
oo,mostly in the early acoonnts,are merely such pa~re macu.l<.e
as to the fair and moderate rather help to prove the rule,
and could suggest imperfection of title to none but the over-
keen and astute- in resumption, whose well-intentioned, but
excessive zeal to advance the interests of the State really
produces the opposite result. This case differs widely from
the Kanara Land Revenue case.* There, previously- to the
British rule, the assessment was proved to have frequently
varied,. as much as 50, per cent. on one occasion alone having
been added to the assessment and continued. Sir Thomas
Munro, indeed, spoke of the land rent as fixed, but his own
history of it showed that it was so only sub modo-that is to
say, the variations were not so numerous or so serious as in
some adjacent provinces, but they were very great a.nd
frequent in comparison with the excoptions in this case ; and,.
moreover, were almost all in the dirootion of augmentation of
land revenue, which, down to the fall of Tippoo Sultan in
1799, and the consequent inauguration of the British rule,
wa.s in a. state of growth. Here, however, when there have
been departures from the normal rate- for Kabilpur, the
variation has been more generally in the direction of diminu-
tion than in that of increase, the amount levied being in tho
• S11pra, p. 1. Vyaku11la Dap1iji v. Guver11111e1u ef Bu111bag.
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236 BOKBAY HIGH COURT UP6BTS.
1875. case of the very few unexplained variations more usuall1
GovaR1ocENT below than above the normal rate. It is a circumstance
0 ., Boxnu particularly worthy of note that while from year to year we
"·
BARIBHA'I find the total annual amount levied from the pargana of Supa
MONBBA'I.
ever fluctuating, and the assessment on its villages other
than Kabilpur also fluctuating, the assessment on Kabilpur
itself ha.s been uniform. In speaking of the other villages
we are not to be understood as including amongst them
the few villages admitted to be vazifa, or the village of Toli
(throughout described as iniimi), or the three villages beside
Kabilpur in which the right of enhancement is in litigation,
inasmuch as we are unwilling to say anything in the present
suit with regard to those three villages. Excepting accord-
ingly from our remarks those three villages and the vazifa
villages and the villages of Toli and Tambarni, and taking,
as instances, the Christian years A.D. 1754-55, 1764-65,
1765-66, 1767-68, and 1770-71, we find that villages other
than Kabilpur have in those years varied much from year to
year in assessment, and the total assessment on the parga.na
of Supa, in which they are situated, has also varied some-
times in the direction of increase, sometimes, otherwise, yet
in Ka.bilpur it has been steady at Rs. 1,174-4 with the un-
important exception, in two of those years, of an additional
rupee as present for a peon or chitnis, and a prim~ Jae~
exception in the year 1754-55, which disappears when the
ordinary Moghlai (Rs. 199-8) is added to the sum (Rs. 974-12)
mentioned in Exhibit No. 239 as received by Government.
We are unable to concur in the argument for the ap-
pellants that the introduction of a ta.lati, ha.vildar, and maj-
mudar, in A.D. 1819-20, by the British Government was
a variation of the assessment, or indicates a right to vary it.
Previously to the introduction, although the cost of them
does not appear upon the accounts, the village most probably
had, and paid some such officers of its own. Moreover, the
Government ta.lati appears to have been, on the remonstrance
of the Desais, removed in A.D. 1824 as improperly intro-
duced (d). And at somewhat later periods the charges for
(d) See Exhibit 219, the petition of the De.lai&, and the order of Mr,
- .
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BOJ1Bl1' HIGH COURT BEPOBTB, 287
the havildar and majmudar disappeared from the accounts. 18715.

r
W e now proceed to re1er . aff ect s thi s OoVERN.IHNT
to t. h e l aw as it 0 ~ Bo.lUl.lY
case. "·
H&RJBHA'I
MoNBHA 'L
The portion of the preamble of Regulation XVII of 1827
of Mountstuart Elphinstone's Code, material to the ques-
tion of the jurisdiction of the Civil Courts in matters of
assessment, is that which recites, as one of the objects of
the Regulation, "that the titles held to confer a right, except
in times of exigency, to entire or part.ial exemption from the
payment of revenue, shonld be declared, and a mode provided
for trying tho title to exemption enjoyed when such title is
deemed insufficient by the revenue officers." This, it will
presently be seen, is consistent with the purview, i.e., the
providing part or body of the regulation.
The first clause of the 2nd section of the same regula-
tion enacted that : -
" All land, whether applied to agricultural or other pur-
poses, shall be liable to the payment of land revenue to
Government, according to the established principles which
govern the assessment of that description of land to which
it belongs, ncept such as may be p1'oved to be either wholly
or partially exempt from tlte payrnent of land revenue, under
any of the provisions contained in Chapters IX. and X. of
this Regulation."
Chapters IX. and X. (comprising Sections 35 to 51) of
that Regulation having been repealed by Section 1 of Bombay
Act VII. of 1863, the Advocate General argued that the
clause of the Regulation, just quoted, must be now regarded
as stoppiiig at the word "belongs," and that the concluding
exception is wholly repealed. But the Legislature of India
has, in Act XII. of 1873, declared that tho portion repealed
consists of the words "under any ·of the provisions contained
in Chapters IX. and X. of this Regul11.tion"-so the clause
quoted is still in force down to and including the words
"payment of land revenue" where they occur for the second
Lu111.1den, the Collector, endoned thereupon, directing the removal of the
Wati.
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.238 BOllB!T HIGH COUBT REPOBTS.
1875. time, a.nd the exception now stands thus :-" except sucli u
' Govn1no:NT may be proved to be either wholly or partially exempt from '
ol' ~~B.u the payment of land revenue." That declaration of the
HARIBJU.'1 Legislature of India, made so recently as 1873, should be
IJ10l1Blli'I,
ta.ken into consideration, were it necessary now to determine
how far Regulation XVII. of 1827 is affected by Bombay
Act I. of 1865.
The 2nd Clause of Section II. of Regulation XVII. of
1827 provided that J1othing contained in the first clau.9a
of that section " shall be understood to affect the righ~
()f Government to assess to the public revenue all lands
under whatever title they may be held whenever and so
long as the exigencies of the State may render such aaaesa-
ment necessary."
Section IV. Clause 1 enacted that " Wken thMe u no ng'M
on the part of the occupant in liniitation of the right of Gover•
ment to assess, the assessment shall be fixed at the discretion
of the Collector, subject to the control of Government."
The special subjection of the discretion of the Collector t<J
the control · of Government, on the principle of the maxim
e~pressio unitis est e:eclusio alt,eri1"8, precludes the construction
that the Collector's di.scretio1i is subject to the control of ihe
Civil Courts.
Section IV., Clause 2 of the same Regulataion enacted
that "When there is a right on the part of the occupant in
limitation of the right of Government, in consequence of ~
aped.fie limit to assessment having been established and pre-
served, the assessment shall not exceed such specific limit."
This ola.nse deals with ' rights,' not with 'discretion,' and
contains no provision, either express or implied, that' rights'
are to be excluded from the consideration of the Civil
Courts. That portion, therefore, of Clause 2 of Section IX.
which gives a resort to the Civil Court, would operate upon
questions of right arising out of a specific limit to the assess-
ment.
Section IX., Clause 1, enacts that," The Collector's deci·
sion upon any question arisini out of the provision.<J of w
Digitized by Google
BOIIBAY HIGH COUllT REPORTS, 239
preceding sections shall, in the first instance, 'be obeyed and 1875.
---~
acted upon as the rule.'' GOVER!Oll!.NT
o-. Boll4BAY
The second clause of the same section is important. It t).
HABIBHA'I
enacted as follows:-'' But if any person should deem him- MoNBJU'L
self aggrieved by any such decision, he may present to the
Collector a petition, addressed to Government, praying for
redress, or may file an action against the Collector in the
Civil Court, under the ordinary rules, or he may pursue both
methods at the same time."
" Third.-The Co1lector shall forward to Government,
without delay, any petition presented to him under the
preceding clause ; but the reference to Government shall
have no effect upon any suit instituted in the Civil Court."
The observations already made upon Clauses 1 and 2 of
Section IV. show that, in order to give to those clauses,
respectively, their full and just effect, the second clause of
Section IX. must, in matters of assessment, be read distri-
butively, or as it is called, reddendo singula sin9ulis. Thus
Government must be regarded, when a petition is presented
to it by a person deeming himseli aggrieved by a decision
of the Collector, as having authority to deal with it as Gov-
ernment may please, the discretion of the Collector being in
all respects subject to the control of Government.
But in the case of an action in the Civil Court, the latter
can only interfere with regard to (i. e., adjudicat,e upon) the
legal right or title of the plaintiff to exemption or partial
exemption from payment of land revenue, by reason of the
existence of a specific limit to the assessment in the case.
This construction at once harmonises all three clauses, with-
out violating the provisions, express or implied, contained in
any of them, and also atta.ins the object set forth in the pre•
amble.
Those two clauses of Section IV. are most important, when
taken in connexion, as they must be, and, as we believe, they
always have been, with the second clause of Section IX. as
fixing a boundary beyond which the Civil Courts may not
travel in questions of assessment of land revenue.
Digitized by Google
BOJIBAY 1UOU COURT REPOBT8.
1875. We have, therefore, with much astonishment learned that,

GovERNMENT in a quarter which is entitled to better information, it has
0 "' ~-MBAY been stated that the discretion of the Collector is, in all
~!~':._~;~ matters of land assessment, subject to that of the Civil
Courts-that there is not a sing]e quesi;ion which can arise
in the course of a settlement, whether it relates to the ferti-
lity of soils, or the prices of produce, or any other matter, if
any there be, even more impossible for a Court of Law ro '
investigate, which may not be taken out of the skilled hand.a
that can deal with it and carried before a tribunal that knows
nothing about it. It has been also said that the Civil Judge
may even control the broadest principles of an assessment ;
that he may disapprove of the portion of the assets which
the Government think it right to take; that he may think
that the assessment ought to be go~erned by prevailing rates
of rent instead of the productiveness of the soil and the rates
of prices, or he may think the contrary ; that he may even
decide that the exigencies of the State are not such as to
warrant the imposition of such an assessment as the Collec-
tor has decided to impose; that in all these cases the decision
of the revenue officer is expressly made disputable in a.
civil action ; that, in short, the whole land revenue system of
the country is, by this Regulation, made subject to the con-
trol of the Civil Courts.
With all due respect for the high quarter in which thls
view of the jurisdiction of th!i! Civil Courts of this Presidency
in its older provinces has been thus expressed, we must
most emphatically state, as we have already stated, in the
progress of this case, that the Civil Courts have not any such
jurisdiction as has been thus ascribed to them; and that, so
far as the Judges of this Court know, the Civil Courts have
never asserted that they have or ever had any such juris-
diction. Nay, further, those Judges are not aware that,
even in the wildest arguments of legal practitioners in those
Courts, any such jurisdiction has been imputed to the civil
tribunals.
Had such a jurisdiction existed, the Court would have
been called on to exercise it in . the Kanara cue. It wM
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BOIIBAY BIOB COURT B:BPORTS. 241
there argued that there was a sp~ific limit of assessment- 1876, ·
a maximum or Kadim bel"iz, as it was called, which Govern- GovBBNKBNT
ment could not exceed-and that, if Bombay Act I. of 1865 o-. ~~BAY
Purported to authorize such an excess, .
it was for that ~/B.IBJU ,1
.w.ONJIJU I.
purpose ultra vi1·es and inoperative. It was not, however, so.
much as for one moment contended, by the learned and very
able counsel for the plaintiffs, that, if he failed (as he did) on
both of those points, the Court had a.ny jurisdiction to
interfere in the assessment, or discretion left to it by law with
respect to the extent of the enhancement. Being of opinion,
as my brother West and I were, that the Bombay Legislature
had not, in that portion of Act I. of 1865 which affected the
case, gone beyond its authority, and that neither by grant,
sanad, lease, pa.tta, or other contract, legislation (and this, as
we shall presently show, ,includes prescription) or otherwise,
was any specific limit to assessment established, and, there-
fore, that the power to enhance was vested in the Revenue
Department, subject to the control of Government alone, we
forebore not only from actually deciding as to the fairness
of the augmentation of the assessment on the plaintiffs' lands,
but even from expressing any opinion upon that question.
We both thought and said that to interpose in the contro-
ver3y which had arisen upon it would be a departure from
our proper province and a usurpation of one of the functions
of Government in its Revenue Department. We took that
opportunity of disclaiming any such jurisdiction, in con-
sequence of remarks made some time previously (e) in the
same quarter as that already mentioned, but by o. different
speaker, which attributed to the Civil Courts an extent
of authority which they never possessed, and, so far as
we know, never claimed. The case, Wa1nnaJi Sadaaiv
Thate v. The Collector of Ratnagiri and tlw Superintendent
of the Revenue Survey {which was treated as the text for
those remarks), afforded no legitimate ground for attribut-
ing to the Civil Courts any such jurisdiction. The 25th
Section of Bombay Act I. of 1865 requires that the assess-
ment by the Survey Officer be "under such general and local
(e) In August 1873,

lJ7-E
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BOJIBAY HIGH COUBT UPORTS.
187& rnlea as may be in force in the snrvey under his charge." The
&onJUOB:i."T plaintiff called two witnesses, one of whom was the kulkarni
OJ' BoMBA.Y (i.e., the village accountant, and as such a Government rev-
v.
HARIBUA'I enue officer), e.nd another inhabitant of the village, who
MONBRA.'I. . was Plam . t'ff' . t h e Iand, wh o b oth gave evi-
1 s co-parcener m .
dence on solemn affirmation that according to former prac-
tice, a.a well under the Peishwa's as the British Government,
and acco,'aing to the rule of the SurVtrlJ Departnumt in forec
in ths locality in which the lands are situ<Jte, the amount of
assessment imposable upon such lands could not exceed
one-siKth of the gross annual produce, i.e., in other words
that one-sixth of the gross a.nnaal produce was then by
law (25th section of the Act itself) the specific limit of
the assessment. They further said that the defendants
had exceeded that limit. The High Court, in its judg-
ment, observed, as the fa.et was, that "to meet this testi-
mony the defendants, the Collector of Ratnagiri and the
Revenue Survey Superintendent, have not condescended to
give or produce any evidence whatever." It has been said
that there was no such rule of the Revenue Survey as the
kulkarni and the other witness deposed. Possibly this may
have been so. If it were, the defendants ought to have
called one or more witnesses to contradict the plaintiff's
witnesses ; and to the neglect to do so, and to no other cause,
the decision adverse to the defendants would be due. In
order to preclude the supposition that the decision would
establish that, in other cases than that of the plaintiff, the
alleged rule of the Survey would of necessity be accepted as
a fact, the Court was careful to say that " the Court must,
under circumstanees such as those in which this case i8 brought
before it, hold that the local rule of the Survey in progress
in the district where these lands are situated, is that dhara
lands should not be assessed for revenue exceeding one-
sixth of their actual produce, and that, in violation of that
local rule of the Survey, and, therefore, of Section 25 of Bom-
bay Act I. of 1865, the defendants have assessed the plain·
tiff's land in a. proportion greater than one-sixth of the an-
nual produce." That decision proceeded on the uncontra·
dieted testimony as to th! local rule of the Survey, and on
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BOKBAY HIGH COUBT RIPORTS.
the express provision in the Act that the assessment shall 1878.
be in accordance with such local rules, which are thus there- GOVBRNMD'f
by prescribed as the specific limit of assessment. The Court, OJ' BoKBAr
"·
therefore, kept most strictly within its jurisdiction as laid H..uu:au'x
I
down in Regulation XVI . o 182 •f 7 I may add that, the
Ko1'BB4'I•
Ratn,giri case being a regular appeal, we would have been

at liberty to take additional evidence if we thought fit so
to do, and that in that view the Court asked the learned
gentlemen who appeared for the defendants on: the appeal
whether they could even theti produce the Survey rules, but
they did not do so, and did not seem to have any certain in
structions at that time whether or not there were any
Survey rules. Assuming that there was such a Survey rule
as was sworn to on behalf of the plaintiff, and that Govern-
ment in its Revenue Department deemed itan impolitic rule,
the Governor in Council might, on any day, have altered it,
and substituted a new rule for it under Section 28 of the
same Act (I. of 1865.) If there were not such a rule as was
so sworn to, its non-existence might have been proved by
even some subordinate in the Survey Department : so it is
difficult to understand how any consternation could have
been properly occasioned in the Revenue Department by
the decision in the Ratnagiri case (1).
( f) That neither that case, nor the case of Gad.re v. The Colleet.or of
Ratnd!}iri was misunderstood by the Civil Courts in the MofuMil, ia
sufficiently shown in the judgment, given by Mr, Birdwood on the 16th •
July 1872 in the District Court of Ratn!giri, in Ra111,chu.nder Bl1il:aji Bhawe
v. The C,nnmlssioncr of S11rve.u and the Collector of Ratnd{liti. After re·
£erring to the two first-mentioned cases, he said :-" The question then re•
mains whether· the allegation, that the defendant omitted to meuure a
portion of the plaintiff's land on which an aaaewnent had been til:ed, ia
one which a Civil Court can inquire into. I think that such an allegation
can only bo inquired into when there is a further allegation that the
assessment actually fixed is in excess of what can be legally levied." And
again:-" It is only' when' (in the language of Regulation XVII. of 1827.
Section 4, Clause 2), • there ia a right on the part of the occupant in limi,
tation of the right of Government, in consequence of a apecifio limit to
ae8C88ment haYing been established and preserved. that an lll808lment in
exccaa of auch specific limit is illegal ; and aleo (as in the cue of Govind
Vinayek Gadre) an useesment is illegal when legal notice haa not been given
of 11,11 -ment." Being of opinion that the plaintiff had n~t established
any right to a BJ>Kific limit to the uaesament, Mr. Birdwood dimieed the
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ll'OJlBAY HIGH COUBT BIPORTS.
1876. If the case of Gad1·e v. Oollecto-r of Ratna9iri (6 Bom. B.

GovuNM&NT C. Rep. 101) decided by Tucker and Warden, JJ., be fairly
or BoKBAr examined, it will be seen that theprinciple on which it really
"·
HA.a1BJU'1 turned, is this : that although the Collector may assess
MoYBBA'i. land prospectively, yet he may not assess it retrospectively,
so as to alter the terms as to rent on which the tenant
entered upon and cultivated the land for the passing year;
or, in other words, to infringe upon the specific limit as to
rent fixed by the contract on the faith of which he so enter-
ed and cultivated for that year. That decision was, there-
fore, not only perfectly just, but strictly within the bounds
of the jurisdiction of the Civil Courts as we understand it
to be laid down in Reg. XVII. of 1827, and the learned
Judges manifestly bad no intention to outstep those bounds.
The case of the Stib-Oollector of Oolaba v. G. M. Mehe11dal6
(10 Bom. H. C. Rep. 216) was one in which the revenue
officers there concerned attempted, in violation of the terms
of certain kauls or leases under which the plaintiffs had
expended capital in reclaiming land from the sea, to in-
crease the assessment on the land so reclaimed. That,
therefore, was the case of a specific limit by contract, and
foll pn>eisely within the circumscribed jurisdiction conferred
npon Civil Courts by Reg. XVII. of 1827 as nnderst.ood
here.
We are inclined to the opinion that the jurisdiction should
be regarded as thus circumscribed even independently of
the 4th section of that Regulation. For we should be dis-
snit. And in a jttdgment given by him in the same Courl, on the 3rd of
April 1873, in Wa.s11<leo Da11uxlhar Joo1od;11r v. Th~ OoUectqr of Ratltd~
m"-l the Survey and Settlement Oommi&rioner, he said :-" And, first, it ii
stated that the . a815e81511lent is excee11i\"e, Such an objection can apr-,reatly
be entertained by a Civil Court only when, in the language of Section 4 of
Regnlation XVII. of 1827, there is a right on the part of the occupant in
limitation of the right of Government to aue88, in consequence of a spec:ilic
limit to assessment having been ee~bliehed and pn,served. In such caees
any M8el58ment in exce1515 of such limit is illegals and can be aet aside by a
Civil Court." Doth of these decisions of Mr. Birdwood had appeared in
the publio prints RB well as in pamphlet form, anti were perfectly well
known in this Presidency, before the over-statement made, no doubt, how•
ever, inadvertently, in August 1873, u to the extent of the juri.edic\ioa ol
the Civil Court,.
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DOllRAY tlIGll CO'O'RT :8:£POR'l'B, ~45
posed t,o hold that Section IX. (which empowers a person 1875.
deeming himself aggrieved by the decision of the Collector oovERNME!'(T
to file an action against the Collector in the Civil Conrt) does OP BoMBAY
not authorise the Court to exercise any control over the · HARIBKA't "·
, MONBHA't
Collector unless he transgress the law. That 1s the proper
and well-understood sphere of action of Courts of Justice,
and, unless a contrary intention be clearly indicated, the
Legislature should not bo regarded as intending to confer
upon them any greater power. The preamble, which points
out that the intention of the Legislature was to provide
means for determining as to the title to exemption from pay-
ment of revenue when the revenue officers deem that title
to be insufficient, is completely consistent with t.hat view.
The 9th section should, we think, be interpreted in that
light. Neither in that section nor in any part of the Regu-
lation is there, in our opinion, the faintest intimation of a
desire on the part of the Legislature that the Civil Judges
should be transformed into Revenue Commissioners, or
Collectors of a superior grade. We should no more deem
the Civil Courts entitled to arrogate to themselves the duties
of those offices, than Lord Selborne, sitting in Chancery,
did to assume functions assigned hy Statute to a School
Board (L. R. 0 Chan. App. 122) or Sir G. Jessel sitting in
the Rolls Court, did to appropriate to himself functions con-
ferred upon a Railway Clearing Committee (L. R. 20 Eq.
383). The Revenue Department, when acting within the
bounds of the liberal discretion which the law entrusts to
it, cannot be interfered with by the Civil Courts. It is only
when it passes those bounds and violates the rights of pro-
perty, or otherwise transgresses the law, that the Courts
can interpose. Those who wish well to the preservation of
British power and honour in the Esst, and whose field of
view extends beyond the frontier of a department, will not
desire that this limited and salutary power of interposition
should be destroyed or impaired. We have no reason to
believe that, as a body, the revenue branch of the Civil
Service of this Presidency thinks differently. Moderation
and discretion, combined with ability, are too general amongst
its members to lead them to desire a. departure in this re•
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BOJIDAY HIGH COURT RBPOR'.l'S.
187G. epect from the wise and statesmanlike principles of Mollllt-

GovnNJaNT etnart Elphinstone embodied in his Code of 1827 (g). India
OJ' BoM.BAY has yet to see the man who better understood what the
"·
HAR1BHA'1 -circumstances of the various provinces of this Presidency
MONBHA'L
and t he temper of its. peop1e reqmre. d. It 1s
. we11 k nown
that it was his intention to extend, in the course of time, t.o
the Deccan and South Mahratta Country, the right of resort
to the Civil Courts which exists in tho older provinces.
Continuing our remarks upon Regulation XVII. of 1827,
we arrive at the 3rd clause of Section IV. which provided
that "nothing contained in the last preceding clause shall
be understood to affect the right of Government to institute
by regulation at any time, when it may appear expedient, new
and specific rules regarding assessment."
That clause, a.s well as the 2nd clause of Section II. of
the same Regulations already quoted, were not indispensable
to the preservation of the power of legislation. That would
have remained in the Legislature if those clauses had never
been penned. The object of them, no doubt, was to prevent
any misapprehension on the part of the subject, and to warn
him that, should it thereafter appear to Government, in its
legislative capacity, that he did not bear his fair share of the
expenses of the State, or that if the necessities of the State
should demand a general increase of taxation, the provi-
sions in that Regulation for his benefit would constitute no
obstacle to such measures as Government in that capacity
might deem proper. But neither of those clauses conferred
nor could have been intended to confer, either upon the
(y) The jurisdiction of Civil Courts in this Presidency was regulated,
not for the first time created, by the Code of 1827. That jurisdiction and
its gradual territorial extension may be trace<l through Bombay Regulation
III. of 1799, SS. 2, 7, 10; Bom. Reg. L of 1800, SS. 2, 7, 9, 10; Bom. Reg,
X. of 1800, S. 39 ; Bom. Reg. I. of 1804, S. 39; Bom. Reg. II. of 1808, S. 3;
Bom. Reg. I. of 1809; Bom. Reg. III. of 1814, S. 5, Clause 2, and SS. JO,
16, 23; Dom. Reg. IV. of 1815, S. 5; Bom. Reg. VI. of 1817; Bom.. Reg.
III. of 1819; Bom. Reg. IV. of 1819, SS. 1, 2, 3, &c.; Bom. Reg. IlI. of
1820; Bom. Reg. V. of 1820, and Bom. Reg. I. of 1823, SS. 23, SS, 26.
That jurisdiction rested on the same principles as thoee laid down by the
Government of Lord Cornwallis in the memorable preambles to Bengal
Regulations II. and III. of 1793. The enactments from 1819 to 1827 iJI·
elusive were pused by tho Govel"WQent of Mr. 1rl. Elphiutone.
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·BOHBAY HIGH COURT REPOltTS, 247
Civil Courts, authority to pronounce upon the necessity of 1871S.
snch new measures, or, upon the Revenue Depa.rtment, the GovuN11uT
right to increase the assessment beyond the specific limit oil B~~Y
assigned to it by contract, grant, enactment, or other lawful HAJu»uA ·1
mode. MoNBB.A.'1,
In connexion with these Clauses 2 of Section II. and 3 of

Section IV. (as interpreoo<l in 10 Born. H. C. Rep.~), the
Advocate Generw. contended that the subsequent legislation
contained in Bombay Act I. of 1865, Section 25 (to which
we shall presently more fu11y advert), authorized Govern-
ment, in its revenue executive capacity, to enhance the
assessment on the village of Kabilpur. To that argument,
however, for reasons about to be given, we are unable to
yield our assent.
The 8th section of Regulation XVIL of 1827, Clause 1,

enacted that " nothing contained in any of the preceding
sections shall be understood to affect in any way the pecu-
liarities of the tenure of the holders of the villages settling
hereditarily and by right for the revenues of their villages
in the gross, and thus possessing in some measure a proprie-
tary right in the land of their villages ; the said peculiarities
shall be respected and preserved, whether they relate to the
occupancy, disposal, and assessment of the lands of the village,
the collection of the revenue, and the joint. liability of the
shareholders, or to the intermediate steps prescribed by the
terms of the tenure, and by local usage, for the purpose of
realising the revenue, in case of non-payment, without de-
stroying the tenure." This clause is (as will presently be
seen when we consider the tenure of the plaintiff) of consi-
derable importance in the present case. The 2nd clause of
the same section relates to failure to pay the revenue, but
is not material here, inasmuch as there is not any allegation
of failure to pay the Bandhi-jama (fixed revenue),-the·only
question being the right to enhance the assessment.
Bombay Act II. of 1803 (passed for carrying into effect

the policy of the Governments of Lord Elphinstone and Sir
George Clerk for the discontinuance of the operation of the
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248 BODAY HIGH COUBT BIPOBTS.
1875, I~m Commission, which had been placed upon a legal

GovBRNIIKNT basis by Act XI. of 1852) applies only to the provinces which
o.r BoKBAY were subject to Act XI. of 1852, the Dekkan, and South Mah-
v.
HARIBBA'x ratta Country, and is, therefore, inapplicable to this case.
Mo.NBBA'l.
To Bombay Act VII. of 1863 (which is applicable to the
older provinces of this Presidency to which Act XI. of 1852
did not apply) frequent reference has been ma.de.
With regard to the 4th clause of the 2nd section of that
Act, which clause excludes the jurisdiction of the Civil
Courts in the case of disputes as to tenure between Govern-
ment and the holders of lands held upon treaty, or granted,
or held as Saranjam, or on similar political tenure, or for
service, it has been admitted on both sides, before us and in
the District Court, that the village of Kabilpur is not held
upon any of those tennres. Sometimes, in the oral evidence,
the terms" Jahagir" and" Jahagirdar" have been used, but
these phrases are often used very loosely, and applied to
proprietary lands not held on service, although, in their stric-
ter sense, they are applicable only to service tenures. In
some few of the documents in evidence, of dates subsequent
to the year 1848, the terms "Sara.njam" and" Saranjami,"
which also imply service tenure, occur, but no importance
can be attached to them, inasmuch as neither party has, in
argument, alleged that the village of Ka.bilpnr was held u
Jaha.gir or Sa.ranjam, or on any other service tenure (h).
In the Ka.nara. case, Mr. Justice West and one of the mem•
hers of this Court gave, at some length, reasons for the
opinion that, as well under the Hindu'·Law as under the
Muhammadan Law, the rule nullum tempus occurrit regi
prevailed in India up to the commencement of the British
Government. The rule of the English Law is the same.
(h) The objection to the juriadiction of the Civil Courta, contained m
the 3rd para. of the written statement, already noticed in note (a), and iD
certain printed reports of Government Officera, subsequently mentioned iD
note (i), tend to show that tlua haa not always been the view which hall
been taken aa to the liability of the plaintifl'a, their co-paroenen and
predeceuon, to render service in respect of Kabilpnr and Uie other ,il.
lagee in Supa, as to which the right to enhance the asaeemnent ia in dilpaw.
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BODAY HIGH COURT RIPORTB, 249
Ha effect ia this, that the rights of the Crown do not by 1875.
mere non-user become abrogated. It is no doubt a maxim 0 OVlUUUOIIT
to be applied with caution, and with which other rules and ow BoKBAY
ma.xims of law may perhaps· at times be permitted to com- Hil;;.8 _.,1
pete, and it haa been in England, as well as here, qualified Mo!IBRA'r.
by express legislation.
The right of the Crown to assess lands was, by Regulation I.
of 1823, Section 3, Clause 2, placed under restriction, where,
for more than sixty years, lands had been enjoyed (without
deed Cir other writing) wholly or partially exempt from the
payment of the public revenue, provided it was so enjoyed
under some tenure recognised by the custom of the coun-
try, and more particularly under auy of those specified in ·
Appendix A to .that Regulation. Clause 3 of the same sec-
tion was as follows :-" But enjoyment of such exemption
for 12 years antecedent to the date when the :territory, in
which the land is situated, came into the possession of the
British Government, shall be considered as equivalent to
enjoyment £or sixty years, in terms of the preceding
Clause." Section 4, Clause l, was, as respected lands
exempt (which would seem to mean wholly exempt) from
payment of revenue for sixty years, similar to Section 8,
Clause 2, without, however, the proviso as to enjoyment
under a recognised tenure. That Regnlation was repealed
in 1827, but the foregoing provisions of it were embodied
in Regulation XVII. of 1827, of which the 2nd clause of
the 35th section was similar to the 2nd clause of Regu-
lation I. of 1823, Section 3 ; the 3rd clause of the 35th
section was similar to Regulation I. of 1823, Section 3,
Clause 3, and the 86th section, Clause 1, was similar to
Regulation I. of 1823, Section 4, Clause 1.
The two periods of prescription of sixty years, thus in-
troduced into Regulation XVII. of 1827, were by Regula-
tion VI. of 1838 reduced to thirty years.
It follow from those enactments that if, at any time
during the interval of forty years between 1828 and 1863, (in
which latter year the 9th Chapter of Regulation X VIL of
1827, including its 35th and 36th Sections, was repealed by
• 117-F
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250 BOKBA Y HIGH COURT REPORTS.
1875. Bombay Act VII. of 1863,) the Collector of Surat had put
GovERNJBNT the plaintiffs on proof of their title to partial exemption
0 "' ~~BAY from payment of land revenue, they might, by proof of
HARIBHA' 1 enjoyment of such exemption, under a tenure recognized by
MONBJLl'L
the custom of the country in which the land is situated, for
twelve years antecedent to 1802 (when the territory became
British), have successfully resisted .any enhancement.
We must next seek the law of prescription (which limits
the operation of the maxim nullum tempu, occurrit regi)
in Act VIL of 1863, Section 21., of the Bombay Legislature;
,t hat Act having repealed Reg. XVIL of 1827 Chapters IX.
.and X. and Reg. VI. of 1833.
That Election (21) is as follows:-
" Claims to exemption from payment of lan<l revenue in
virtue of prescription shall be admitted under the following
circumstances :-
Olause lat.-When land .situated in districts ceded by or
conquereil from the Peishwa a.fter 1803, is prpved to have
been held by any person, his heirs, or others, deriving right
from him, wholly or partially exempt from payment of land
revenue, under a tenure recognised by the custom of the
country, for sixty years in auccession next preceding the
date of this Act, or wl-iere lan.d situated in any other dutrid
is P'>"oved to have been hel,d in like manner for thirty year, <U
af01·esaid.
Clause 2nd.-Provided, however, that whenever exemption
has been enjoyed under a sunnud or other writing, no title
by prescription khall be admitted unless the full period re-
quired under the last preceding clause shall have elapsed
subsequent to the expiry of the title under the sunnud or
writing aforesaid.
Clause 3rd.-And that in no case shall a title to prescrip-
tion be admitted in respect to Government lands alienated
since the British Government obtained possession of the
country, and without its permission.
Clause 4tk.-And further thatthe exemption during the
periods of sixty and thirty years respectively, as detailed in
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BOMBAY HIGH COURT Rl:PORTB. 251
Clause 1 of this section, be proved to have been enjoyed in 1876.
strict conformity with the conditions of the recognised GovnNJUNT
tenure under which it is claimed." 0 "' BolllBA.Y
11.
HARrBHA'I
MONBH.&.'L
This section is clogged throughout with the provision as
to recognised tonure.
Supa. containing the village· of Kabilpur having been

ceded to the British Government on Dec. 31 1802 (vide
Reg. II. of 1827, Appendix E, and Thomas" Treaties, pp. 513,
519), the latter portion of the first clause of that section,
viz., that-" When land situated in any other district is
proved to have been held in like manner" (ie., wholly or
partially exempt from payment of land revenue, under a
tenure recognised by the custom of the country) for thirty
years, as aforesaid-'' claims to exemption from payment of
land revenue in virtue of prescription shall be admitted,"
is applica.ble to that village, if it have enjoyed a partial
exemption for the period of thirty yee.Ts in succession next
preceding t~e date of the Act under a tenure recognised by
the custom of the country. We are clearly of opinion, as
already stated; that it has. been enjoyed by the respondents
and their predecessors in title at a fixed revenue much
below the full assessable value of the village for a very
much longer period t:han thirty years in succession next
preceding the date of the Act. We shall next proceed to
consider whether it has been held under a tenure recognised
'by the custom of the country.
The principal witness for the appellants-, Kesavlal Natha.-
bhai [sefl Exhibit No. 256], who is a Mamlatdar, and has
officiated in that capacity for the pargana of Supa, dis-
tinctly admitted, and it is not in fact denied, that Kabilpur
is not a rayutvari village, that is to say, it is admitted that
the revenue settlement is not made with the c1lltivators
(rayuts) individually. He says: "Kabilpur is a Hundavari
vi1lage. The meaning of the words ' Khatabandi ' and
' Hunda.bandi ' is one and the ea.me. The Government
'Dharo' or assessment is not taken from each field in
Hundava.ri or Kha.tabo.ndi villages, but ' Udhad Dharo'
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2b2 IIOKBA Y HJOH COUBT RIPO&TII,
1876.(assessment in lump) is taken from the whole village.

GovumaNT A<'.cording to my opinion such villages come under Sec. 8
0• ~~u of Reg. XVII. of 1827." In hie opinion that the village
:ft:::::!.~~
1 comes within Sec. 8 of Reg. XVII. of 1827, we concur.
There was no annual settlement of the revenue payable by

Kabilpur--the revenue was fixed (i) and was in no way de-
pendent on the quantity of.Jand in· cultivation, and it was
paid in the lump. Kesavlal'e opinion is fully supported by
(i) In noticing, in the above pu11age, with reference to Section VIII. of
Reg. XVII. of 1827, that the revenue payable to Government in n•pect of
Kabilpur is fixed, we do not intencl that it should be thence' inferred that
immutability of revenue is an essential characteristic of villages collliDg
within the range of that aection. In a large majority of 11uch villagee ,n
II.ave re&BO!J, Mi belien that the revenue is not permanently fixed. In some
few, however, u we llhall presently show, it appean to be IIO fixed. The
attribute which is indispensable Ml a village in order to its claaaification
under that section, is that the shareholders of the village should 1ettle
., hereditarily and by right for the revenue c,f their village," not individual·
ly, u in the rayutvari manner, but "in the gn>e11," i.e., there muat be a
joint liability of the shareholders to Government for the revenue. And the
same aection peremptorily require& that the "peculiarities" ol the tenure
of villa.gee, ao held, muat be "respected and preserved whether they relate
to the occupancy, disposal, and auM871Wlt of the land.a of the village, the
collllCtion of the revenue, and the joint liability of the aharelllolden, or to
the intermediate atepe preeoribed by the terma of the tenure, and by local
UBage, for the purpoae of realising the revenue, in caae of non-papnent
without destroying the tenure." Hence it is not only a peculiarity in the
mode of collecting the revenue of a particular village, falling within Sec·
tion VIII. of Reg. XVII. of 1827, which ia to be maintained, but alao a
pecaliarity in iu &1111eeament. If, then, in such a village it happena to be a
peculiarity that the &111e11BJDent is invaria.ble, and below the ordina.ry local
rate of full aeeeesment, that peculiarity must be respected and preserved.
Such an invariability is, in o\her terms, pa:itial exen:.ption from "paymui of
land revenue.
The principal villages falling within Section VIIL of Reg. XVII. of lffl
are those held on Bhagdari, Narvadari C'r auch like tenure. The Bhagdari
and Narvadari exist in Guzerat and are, in their leading featuree, aimilar-
the term N arvadari being used in the Kaira ud .Ahmedabad Collector·
atee-and the term Bbagdari in that of Broach-(Robertson'a 01.oea. p. U
pl. 7; 8, 9.) Some account of thia tenlU'e is given by Mr. Mouat;mian
Elphiuatone in a minute written in .April 1821 after a brief stay in Gment.
That minute baa suffered oonaiderably in the hands of London printera.
It i1 published in 3 Rev. Bel. pp. 661, 680. .Amongst other errora of tlie
prea the word " Bhagdars " is misprinted " Baydars " ; and the villap
are Haid to be " formed by ,traogen and never held ryotwar." The word
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BOllBAY HIGH COURT RICPO.RTl!I. 258
other parts of his evidence. He continues thus:-" .All the 1876.
sharers of the village were jointly responsible for p~ying Gov- GovzJUOBNT
ernment money. They a.renotanswerableaccording to their or BollBAY
1',
shares. Each sharer used to pay into the ta.luka. treasury HARIBRA.'1
MoNBH.A.'1.
"atrangen "is a mi.Bprint for "sharers"-which expreBBion is used in con•

Srast to "ryotwir.r." Captain Cruickshank, of the Superintending Sarvey
in Guzerat in his report of the 10th October 1827, paras. 27, 28, h&1 given a
more detailed report of this tenure (See Robertson's Gloaa. : p, 27, pl 8 e,
•eq.) He saye (intt:r alia) : 'The lands of Nana villages are divided into
certain large divisions ( from 2 to 7,) called Bhags or Pateea (PatiB); and
these are subdivided into smaller parcels ( from 10 to 200 ), called Rupeee,
Annas, Paghrees or Pans ; and these again into fractional parts. The sn,
perior Bhagdars, or holders of shares'' (Bhag means a share or division) "are
collectively responsible for all demands of public revenue ; and the inferior
Bhagdara are collectively responsible for that portion of the revenue which
i• aaaigned to their Bhags. The shares or divisions, both major and minor,
are sometimes of equal amount, and sometimes of unequal, but always in
a known and recognised proportion, so that the revenue due by the whol•
village may be exactly apportioned among them." Subsequently he says:
" TM Narva ia considered alrictly aa property; it i4 saleable from one person
,o another, a,&d inherited, subject to all the rules and customs by which the
inheritance of any other kind of property iB guided. Sons inherit equally,
and hence the almost incredible subdivisions oft.he Narva, but the holder
of the minutest portion claims all the privileges of a Patldar, and takes his
place in the village concerns before all other ordinary memben of the oom•
munity. •• And again :-" Under the Narva system the Government ia
8 upposed to have nothing to do directly with the land : it makes ite demaud
in money, which iB divided among the village commuuity, and made good;
and beyond an examination of the general state of the cultivation, Govern-
ment bas no right to interfere in any way with the diviBion of the land
among the cultivators, or to inquire how much or how little land iB held by
each individual. Thie iB easentially and entirely the province of the village
communit,r." ( See also 2 .Bom. H. C. Rep. 231). The leading authority
on the Bhagdari and Narvadari tenure is Mr. Pedder, to whose first and
principal report on that euLject we can, in thiB note, only cureorily refer.
It is p11blished in No. CXIV, New Series, of the printed Selections from
the Bombay GoYernment Records, aud is dated March 21, 1862. Mr. Ped-
der was then Sarvey Settlement Officer in Guzerat, and it has not been
disputed that in special knowledge of this subject as well as general ability
u a Revenue Officer, his position iB not second to that of any gentleman
in the Revenue Department of this Presidency. He commences by de-
scribing his report as one "upon the different tenureB in this province
(Guzerat) which involve a joint responsibility for the payment of the
Government Revenue, and the law relating to which iB Section VIII. of
Regulation XVII. of 1827." He then says:-" During this and l&6t yeac
I have taken much p&ina to m~e myeelf acquaintud with the history and
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254 BOlfBA-Y HfOlf COURT Rli:PORT8.
1875. separate money for his own share, but, if one sharer
Go=~ failed to do so, all sharers were jointly answe:rable for
ow BoXBAY it. Government did not make separate agreements with
"·
H.&RIBILl '1 peculiarities of this system of tenure by personal inquiry from the rrota
?do:.•rmu.'L
themselves and from the district and village officel'II, and by examiuiog
all official documents (English and Vernacular) which eeemed likely to
throw light upon ia somewhat iutricate subject. I hope, therefore, to be
forgiven if I 1eem to speak with authority on questions regarding which
exiJerienced officers have held different opinions." After quoting a paeuge
in a despatch of the Court of Directors upon Gnzerat, dated in 1826 in
which they remark that " the principal class of the people, the cnltinton
or ryots, have this in common with t.Jie l!&Dle class in ot.Jierparts of India:
thAt they consist of two cl888e8, one proprietary, one not proprietary;
that' among the proprietary class almost all the land ia distributed ; tbt
they cannot be legally dispoaseseed of their land.a, so long &a they pay the
Government demand, and that the population is divided into village com·
mnnities," Mr. Pedder proceed.a to speak of the two cla&ses of village com•
mnnities named by Sir G. Campbell as the aristocratic or simple form aad
the democratic. Of the aristocntic, Mr. Pedder says it waa "a mer-
aggregate of cultivators under a single headman appointed by thti Raja
There was no common tenure ol lan<h, but each man cultivated his o,ro
plot of ground, and his only proprietary right was a sort of customary oae
that he should not be turned out as long as he p:iid his rent, which be did
directly to the Chief who owned the village, and the amount of which wu
nominally regulated by custom, but was often increased under various
pretences.'' This was " the common form of the village communities wed
of the Gulf of Cambay and generally in tlie frontier districts of Guzem
where the country was di\·ided among petty Chieftains. " He next (pan.
7 d ,eq. ) treats of the second or democratic class of villages, which chirlly
existed in the central districts of Guzerat-" the Dusknroees -the Cberotnr
or western portion of Kaira, the parganas of Broach and the Attansi" of
Surat. "Each village was originally founded by a family, or &11110Ciatioa ef
families of the cultivating castes-Rajpnts, Kunbis, Boras, or Bhatela, all
apparently belonging to kindred tribe a. After describing the constitution
of such villages, and dividing the cnltintora thereof into two bodies-
the proprietary and the non-proprietary, and after-indicating (in paras. 17
and 18) the effect of the various revenue systems of successive Gonmment.
npon these communities, he proceeded (in para. 19) thua : "The Mogai l'llle
was succeeded by that of the Mabrattas, who, whatever may have beeD
their merits in their own country, were in Ouzerat mere plunderers. Their
system was the ruinous one of farming out districts to speculators, whom
their turn farmed out single villages to other persons, often uncon.neded
with the village, but who were som~times the pate ls or aome influential
cultivator. Ju the object of each farmer was simply to make u madl
money as he could during the few yean of hia lease, the villagea were nain-
onaly rack-rented. The udhad jama (lump &88Nlsment) of the village of Koc>-
budhal, for eU111ple, wu raised in about forty years from Ra. 700 to Ra. S,:$0
Digitized by Google
BOVBAY HIGH COURT REPORTS. 255
eaoh shn.rer, bat used to make one with a.11 the sharers 1875.
-----
conjointly. This was done at the time of the first settle- Govtral'llBN'l'
owBollilllAY
ment. The time of the first settlement means the time the v.
HARmHA I 0
besides t-O<la gi ras. This fa . ming sygtom was the peat of the communities, MoNB!li'J,
and created the Narva and Bhagdari ienurea under report in the following
manner. 20. ID many villages, e•pocially thes<' in which the non-proprio,
tary cnltivators were numerous, the communities sooner or later broke
down under the pre$sure. Every cultivator, proprietary or not, had to pay
to the uttermost of his power, first, the old assessment of his land, and thon
a variety of ceases and other extortionate imposts, and thus any real distinct,
tion between tho two classes disappeared. Many villages were deserted
and never re-occupied by their original owners, and in many others tha
farmers altogether usurped the rights of the original proprietors. This was
especially the caae in the Surat Att.avisi, where the pc,werful Desai families
contrived almost everywhere to oust the old Patels, and to divide parganas
among themselves as I.heir property. At the beginning of our rule these
Surat Desais seem to have occupied precisely the same position as tho
Zamindar11 of Bengal. Vide minute by the Rt. Hon'ble Mr. Elphinstone,
Rev. Sel., Vol. III., p. 69!1."
Of that minute written, in 1821, by Mr. Elpbinstone, the portion which
ia here material is the commencement of the 7th para., which is as follows:
- "The system of collection in the Surat District is now almost entirely
rayutvar, but this improvement is very recently introduced. Before wo
got tbi1 district, and for a very long 'time after our acquisition of it,
tho country was completely i.n the hands of the Desais, who considered their
poaseasion so permanent that each family partitioned its parganas among its
membera, like the Patels of a Bhagdara' village. Every Desai managed his
own bhag as he pleasetl, ancl in general they displaced the old Patois, and
carried on even the interior management of each vmage by means of
their own agents who were called Talukdars. The Desai was thne the per,
feet master of the people without any one to check him. The mode of
aettlement of the revenue was for the Ma.mlatdar, and in our time, for the
Collector, to send for the Desai and make as good a bargain as he could with
aim for the year's revenue of his pargana. The Desai then apportioned tho
sum to be paid among all the villages of the pargana, and the Talukdars {or,
where there was one, the Patel) divided the assessment among the rayuts.
By this plan the Collector matle his assessment entirely in the dark ; and
although it was his intention not to increase the revenue, unless where there
was an increase in the cultivation, yet the want of information on.his part,
&11 well as the fraud of the Desai, often operated to raise the begoti of the
old lands. They, indeed, hatl no protection against the exactions of tho
Desai, if he chose to complain to the Collector, except an appeal to tho
Talati'e accounts, by which his own ignorance of his rights rendered him
little able to profit, and which could not be much relied on in conseqnence
of the dependence of the Talati on the DeaaL " Mr. Elphinstone then de-
ecribed the new system introduced by the British whereby every rayut. at-
tended ali th0Komaviedar'1 Kntcherry, and his Janel and rent were ascertained
Digitized by Google
256 BOMBAY BIOJI COURT JtlPORTS,
1875. shares were first determined. '' After saying that, in some
GoVUlOlmn: villages, this joint tenure had broken down in consequence
o, BoMBAY of the insolvency of the sharers and of other reasons, he
"·
H.UUBBA.I
Mo!IBIU 1, in hia pn,aence from the Tal&ti'a boob, &c., &c. He obeervee (para. 8) ~
this new eyatem wa1 introduced in the year 1817-18, and there were several
parganaa to which it wa1 only extended in 1820-21, and that, in aome, it
baa not yet (1821) been completed. The probable and more obriollll mean·
ing of Mr. Elphinatone'a remarks on the conduct of the Desaia ia that they
levied from the rayuta larger euma aa land revenue than they (the Deui1)
accounted for to the Native or eubeequently to the British Government.
It may be aaid that he further intended to imply that they improperly cut
upon villagea, in the parganaa under their management, a portion of the
burden of taxation which ought to have been borne by their own private
villagea situated in the same parganaa. This, however, would not be COD•
si.stent with hia hypothesis that the Collector might not deaire to i n ~
the taxation of the pargana. If there were no euch augmentation there
could not be any euch motive, a1 a desire to spare their own vi11agel, to
induce the Deeaia to increase the charge upon the rayuta. The fint Illig·
geeted meaning, namely, that the Desaia embezzled a portion of the revenue
levied and accordingly levied more than wa1 neoeuary, ia probablythet.rue
1<>lution of what Mr. Elphinstone baa written. Auuming, however, that, ,.t.
though he baa not mentioned their private villagee, he intended to include
a charge against the Deeais of fraudulently sparing their own vil1asee and
levying the deficiency thn• occasioned from the other vil1agee, it mlllli be
remembered that hia obeervations are of & general character only and that
he does not enter into details. If he intended to imply that the DNaia, in
order to eave their private villagea from augmentation of revenue in any
particnlar year, distributed amongst the other villagee in a p&rg&na, manapl
by them, the whole amount of the increase and thu• spared their own viJ.
lagee, it does not thence follow that in every such caae the Desaia acted
improperly. Take, for instance, Toli, and the three Vuifa vfilasee which
are admitted to be P.artially exempt from payment of revenue, there would
not, on the pargana of Supa being eubjected in any particular year to an
enhanced revenue, have been any impropriety in the Deeai1 omitting to
place any part of the increue upon Toli and the V ad£a villagea, and dia-
tributing that increase amongst such other villages in the l&Dle pargana· u
were not exempt wholly or partially from the payment of land revenue. It
atill, therefore, notwithstanding Mr. Elphinatone'e remark, would remain a
queetion whether any particular village wa1 wholly unaaaeaaable or liable
to limited aue11ment only. We must recollect that, although the De.ii
might once, twice, or more frequently succeed in fraudulently exonerating
from enhancement of revenue some one or more of their villages not entitled
to total or partial exemption, euch a course of evoeion could eca.rcely
endure without detection for any very long period of rean. When the
Mahratta raj became firmly established, the accounts were annuallyforw&rded
to Poona, the eeat of the Peilhwa'• Government, whence many of them haft
been brought a1 evidence in thia canee The uniformity of the annual ...
Digitized by Google
proceeds :-" In the village of Kabilpur the first settle- 1875.

ment had continued until the new survey was made " GoVERNML"T
OJ'BoHBAY
(viz., 1870-71).
"·
HA.RJB.11.A.'I
aessment of a particular village could not then have escaped notice. Sup- MoNBBA.'J,
posing, however, that such might have been the caae, and, therefore, that
such uniformity during the Mahratta rule ia not deserving of much weight,
it cannot be said that the British Goventment, whoee eyes were opened to
the malvereations, real or supposed, of the Desais so far back 1111 1817, aa
appears from Mr. Elphinstone's minute of 1821, and who had, therefore, to
a large extent in Surat substituted the rayutvari system for that of the
De.sais, waa from 1817 down to 1870 equally blind to that uniformity of
assessment. Inquiries into their claim to hold Kabilpur at a fixed revenue
were actually held in lSU and again in 1855, but the revenue officers who
held those inquiries did not venture to enhance the assessment. The
revenue accounts, too, as conetituted by Mr. Shaw, the Revenue Commia,
aioner of Government, for the twenty-two ye&n1 extending from A.B. 1848
to A.D. 1870 have, as already observed in the text of this judgment,
contained annual admissions of the validity of the plaintiffs' claim to hold
Xabilpur at a fixed yearly payment below the aaeeeeable value, and accord,
ingly partially exempt from payment of land revenue. These are facts
against which the learned counsel for the 'appellants (defendants) have in
vain endeavoured, to atruggle. Again there ie really nothing to show that
Mr. Elphinstone intended to apply his remark.a to the pargana of Supa, or
to the village of Kabilpur. There are, however, reasons which render iii
extremely improbable that he could have so intended. The ExhibitNo.32,
put in evidence on behalf of Government, ehowa that the persons, under
whom the plaintiffs derive their title, w1ire in pouesaion of many, if not all,
of the villag_es in the pargana of Supa in Samvat 1714 (A.I), 1657-58), and
amongst those villages waa Kabilpur. Tliia was anterior to the irruptioa
of the Mahrattas into Guzerat, subsequently to which Mr. Pedder de1Cribea
the encroachments of the Desais as having taken place. It ia admitted that
Kabilpur ia the principal place of reaidence of the plaintiffs, and ie cultivat-
ed by them. Even the Zamindnrs of Bengal, Bahar, and Orissa (to whom
Mr. Pedder has compared the Desais of Surat) though before the perma-
nent settlement in 1793 they may have been no more than farmers of
revenue aa regarded the greater part of their Zamindaris, yet occaaionally
were the ownere of some part of the land within those Zamindaris.
The earliest recorded incursion into Guzerat of Sivaji, the founder of

the Mahratta power, would seem to have been A.D. 166,, on the 5th of
January, in which year he aacked the city of Surat. (Bu Elphinatone'a
History, 549, -'~ edition ; l Grant Duff, 145, Bombay reprint. ) He
meema to have made his ilrat demand for ohauth and sirdesmuki ia
hie negotiation through Jei Sing with the Emperor Aurangzib in A. D,
1665, and then only as against the Biji\pur territory. Mr. Elphinstone
aays that the grant then made of the percentage· (afterwards known aa
ohauth and airdesmuki) on the revenue of each district under Bijapur
B 117-o
Digitized by Google
258 :BOlfBAY HIGH COURT llEPORT8,
1875. He then speaks of " Be.ndhi-jama." villages. '' Certain

GovuNIDNT villages in Gujarat to which sane.ds have been granted by
0" BoKBAv Government to the effect that no more asaessment than
"·
H.t.BIBBA'1 what is fixed would be received, are called Bandhi-jama
MoNBBA'f,
" wu the foundation of the ill-defined claims of the Marathu whicJi

afforded them mch constant pretexts for encroachment on foreign territorie1
in later times" (Elphinatone's Hist., p. 550 ; 1, Grant Duff, pp. 153, IM.)
'' His BeCond innsion of Gujarat was .t..D. 1670. }fr. Elphinatone aaya
that Sivaji then again plundered Surat, carried his ravagea over Khandeu,
and for the fint time levied the chauth, aftenrarda so celebrated in Maratha
History." (Elphinstone's Hist., p. 555 ; 1, Grant Duft', pp. 179, 180). The
chauth then leTied would seem to have been in Khandesh only ( 1, Grant
Doff', p. 181). In A.D. 1702, the Mahrathtaa again levied contributions ia
Surat, but their earliest probable levy of cbauth in any part of Gujarat wu
A.D, 1705 (1, Grant Duff, p. 288; Wallace's Gaekwar, p. 1). .A. stated
,upra, in note (c), the right to levy chauth in Gujarat wu not formally
conceded until A.D. 1729. If we 888Ume that " Wasal Chothvo," which
ia the beading of the fourth column of figures in Exhibit 68, means cbauth,
that exhibit, which is the summary of village accounts for A. D, 1724-25,
is the earliest evidence in this case of a levy of chauth by the Mahratht.u in
the pargana of Supa. The same exhibit is also the first evidence of any
levy of" Ganimai" by the }lahratbtas. · The date (.t..D. 1657·58) of Exbfbit
32, when compared with the dates which we ha-re now giveu &1 thoee of
the primary incursions of the Mahrattaa into Gujarat, and of the nltimAte
eetablishment of their revenue demands in the same province, 11eeDU1 COD·
elusively to establish that, howsoever applicable the obeervationa of Mr.
M. Elphinstone and Mr. Pedder, as to the acquisitions of the De11&i1 dnr·
ing the Mahrathta raj, may be to other villages, they are quite inapplicable
to the villages in the pargana of Supa, including Kabilpur, mentioned in
Exhibit 32, and which, at its date (A. D. 1657-58), were already in the fuD
poeeession of the Desais, the progenitors of the plaintiffil. Eiunlnt ~
{dated A.D. 1668-69), which is anterior to any levy of chauth or ganim&i in
the pargana of Supa, also shows that the villages of that pargana men•
tioned in it, including Kabilpur, were then held by the Desais.
Reverting to Mr. Pedder'& same report, para. 21, we find him uying:
" But in many villages, especially in Broach and Kaira, the proprietary
body mcceeded in retaining the management of their villages, and in order
to meet the new demands, founded neither ou a definite share of the pro-
duce, nor on a fixed assesament of the land, but only regulated by the
ability of the rayute to pay, they invented the narva or bhagvari a,.tem,
which was simply this : the joint responsibility for the payment of tae
Government demands was divided in the same manner ae the lands of the
community had originally been, and each proprietor wu held anawerable
for a share of the revenue proportionate to his share of the proprietary
right, the members of each family holding a separate estate, being in the
first i.Jlatance reapolllible for each other, and, finally the whole co-parceDUY
Digitized by Google
BOKB.1Y BIOH COURT REPORTS, 259
villages. The amounts, which Government is entitled to 1875.

receive from such villages, are credited as receipts other GovuNJaNT
than those of Jame. Be.ndi.'' Subsequently he says: " I OJ' BoHBAY
tl.
cannot tell whether or not Kabilpur is a Bandhi je.ma. vil- H.u1BHA'1
MoNBB.A'L
lage." Although this witness has spoken of sana.ds in
connection with Ba.ndhi jama. villages, he subsequently
being jointly answerable for the entire amount being paid." Further on
in para. 28, clause 1, he eays that "the Narvadara and Bhagdara are merely
the old proprietary cultivatora, and the system only a mode of eharing the
Government demand& ; " and in Clause 3 of the aame paragraph he eaya :
" Wherever they have not been much over-aeeeaaed they have become
wealthy. Their cultivation is by far the moat careful and ecientilic in
Guzerat ; and the eetimation in which they themselves hold their tenure ie
euch that nearly all of them eay they would prefer no revieion of their aa-
8881J11ent to having the tenure destroyed. A more convincing proof than
any of the benefita of the tenure is that, under the Mahratta rule, narva
land bore a ealeable value." In paragraph 29 he eaya-" The number of
villages held on the tenures under report ie as follows :-
In Ahmedabad 1
,, Kaira 96
,, Broach 244
,, Surat 12 (the number in Surat ie not certain).
He adde that " although the principle is the aame in all, yet almost
every village has its own peculiarities, many of which will be found in the
appendix to this report." In explaining some of the leading distinctions
he makes in the aame paragraph the following remarb which are very im-
portant in thie case :-
" Regarding hundab<indi (udhad-bandi) villagea, aa a few in Surat are
called, there exists a difference of opinion, it being generally thought that
in them there is no joint responsibility. This opinion eeeme to be founded
on a paeaage in the Honourable M. Elphinetone's minute on Surat {Selec.
tions, Vol III., page 698), that • in some parganaa the hunda tenure
is originally formed by the divieion of a village in the same manner as ie
usual among Bhagdara, but there is no mutual responsibility, and the divi.
sion once formed, the sharers hold exactly on the terms of the Khstadars.
In a few Surat villages called hundabandi, however, the aaae1.1sment ia
made in the lump, and divided by a " phaloee " exactly aa in narva
villages (t1idt Appendix No. VIII.), and the joint responsibility is strictly
eoforced. I think M. Elphinstone did not refer to these villages, but to
tboee others where the hereditary shares of the proprietors were aeparately
aMe111ed on the hunda or khatabandi system." The example which Mr.
Pedder gives in Appendix Vlll ia the village Seaodra (or Silodri) in the
Digitized by Google ..-

260 .BOMBAY BJOH COURT RBI'ORT8.
)875. says :-" Bandhi jama villages are written or shown on the
GonRNMBNT Tarija or gross revenue of the taloka. Such revenue
ol'.sc;~uvstatements are kept from the year 1849. The revenue of
HARIBHA I 0
MoNBHA.'I,
t&luka (pargana) of Supa, one of those mentioned in Exhibit 32 and muy
other exhibit& in this cause. He saya that ita tenure ia " hundabandi, ex-
actly resembling the ordinary narva of Kail'&." It is not one of thole
villages in which the plaintift'11 allege that the uaeeament is invariable. We
refer to it aa elucidating the hunda.bandi tenure. Mr. Pedder says of ~
village:-
" There are four original distinct families of patidara, correspoDding ,ritla
the four mota bhaga-one of bhattela deeaia-and three of mutia lnnbia.
To each family there is one mota bhagdar, who is alao muttadar. If UIJ'
1barer breaks, his nearest relatives must take up his land ; if they will not
do so, the mota bhagdar of his family must manage the land, pay tbe cor-
responding lhare of &1111esament, and take the profit or bear the lo11. Thia
is the only peculiar privilege of the mota bhagdar ; in other re1pecM all
aharen, have equal rights. Ha mota bbagdar fails, the whole oo-parcmarJ
becomes reepoll8ible to Government for hu anean,, or the tenure woald be
broken, but this baa never occurred."
11 The tenure was founded before the memory of man. From the infin>.
duction of British rule till Samvat 1907 the hundadan paid Ra. 6,000. ID
that year the jumma waa raiacd to Ra. 7,800, at which sum a 1 - for
10 yearswaa given them."
"The mota bhaga were originally distinct, but now a few person• belong-
ing to one family, by sale or private arrangement, hold shanie in an~
mota bhag. No stranger, i.e., one not belonging to one of the four familie1,
has been admitted to proprietary rights, nor has any hundabandi land
been alienated to strangers, either by deoree of Court, or by private arranp,
ment. " Gubhan" land ill attached to each mota bhag, but no decree baa
ever been pa1111ed upon such laud."
" If a hundadar dies, leaving 3 son11, they all share his land, and become
hundadan, but the name· of the eldest sou alone is entered. The daughter
of a bhattela, in default of male heirs, may succeed her father, but not of
a muttia."
Mr. Pedder'• report recommended strongly the continuance of theee
tenures, and waa highly approved by Mr. B. H. Ellia, (&&me volume
CXIV., Bombay Government Records, pp. 62-65) by the Government of
Bombay (lbdi., p. 94,) and eTentnally by Sir Charla Wood, then Secmuy
of State for India (Ibid., pp. 97, 98). lb, Ellia (inlet' Cilia) referred to
Bombay Act V. of 1862 as a proof that Government wu pledged te
maintain those tenure1. That Act 'Was eettled in ita preaent form by tu
writer of this note w!ren, aa Advocate General, an ex-officio Member al
the Bombay Legislative Council Regulat.ion XVII. of 1827, Sect.ion Vlll,
was moat properly referred to by Mr, PcddM u compriaing thOICl teaum.
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BOMBAY HIGH COURT REPORTS. .261
the land paying less assessment, (i.e., partially exempt from 1875.
payment of revenue) will be found from the above-men- OovnN1111:NT
tioned Tarijas M well as from the 'Number Kharda.' On °• ~.MB4Y
IIARJBHA'I
MONBH.6.'L
That section and the description given of those tenures by Captain Cruick-
shank and Mr. Pedder, as well as the evidence of Keeavlal, the chief wit-
neea for Government, to the effect that Kabilpur ie a hundabandi village
for whoee rennue payments to Government the plaintiffs and their oo-pro-
prietors are jointly respol)Bible and have been so since the original settle-
ment of the village, prove (whether or not that revenue be invariable in
amount) that the denial in the answer, or written statement of the de-
fendants, that the plaintiffis are the proprietors of that village, and the
aesertion that it ie Government property, are unsustainable. It has, how-
ever, been shown at some length in the Kanara case that the existence of
private property in the soil ie not necessarily inconsistent with a right on
the part of Government to increase the assessment, and, therefore, that the
proof of proprietorahip in the rayut ie not, per ae, proof of immutability of
aasesament-to establish which there must be something more than mere
evidence of ownership of •he land. We have already in the text of our
jndgment and of this note pointed out that there is aati.sfactory proof in
the documentary and other evidence received in this cause of invariability
in the assessment of Kabilpur. That evidence is strongly supported by a
report of the 14th August 1866 of the Guzerat Vatan Commission, of which
Mr. Pedder waa President, addreued to Mr. Rogers as Revenue Com-
miBBioner. We refer to the copy of it printed for Government in 1866 at
the Bombay Education Society's Preee. It should be recollected that the
object of that Commission was chiefly to ascertain how far the persona
who were or were alleged to be under the obligation of rendering service to
the State in reepect of their landed estates in Ouzerat were willing to
render it, or to compromise by making a fixed annual payment to Govern•
ment ont of their lands in lieu of anch service, or, as it ie styled in the report,
to agree to a non-ser.viee settlement. We limit ourselves to a brief notice
of so much aa is aaid in that report in relation to the Surat Deaai.s, and
especially to those of Supa. Much of what Mr. Pedder had aaid in hie
previous report of 1862 with respect to Deeais of Surat Attavi.si ie reiter•
ated in this report of 1865 (see pp. 11, ·12, 13, paragraphs 12, to 18). In
reading that report the distinction should be home in mind between villa-
ges in which the Deaaia had no legitimate interest beyond their Deeaigiri
hak or percentage on the revenue, and villages which were their own
private property. Speaking of the former, this report aaye (p. 12 para. 15)
that '' The authorised emolument of the Deaai.s was cash allowance
calculated at 2l per cent. on the village revenues. This seems to have been
the original remuneration of the office, and was formally confirmed by the
Emperor Aurangzib in A. D. 1669. But in Surat this limit was merely a
nominal one, for all the profit.e, which the Deeais could make from the vil-
lage management,-were, of course, their own." At page 8 it is stated that
" tile Surat Deaaia, with trifling exoeptioD.B, render no IICJ'Vice whatever.
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262 BOIIBU HIGH COURT Rll:PORTS.
1875. a. enbeeqnentda.y he said-'' Rs. 1,606 were entered as 'Mafi,'

GovnNKENT (i. e., remitted revenue) in the Kabilpur jama-bandhi from
~~BAY
0 ., the year 1849 to the year 1868. They were entered in
HARJBHA'I
MONBHA'L The exceptiol18 are the following :-certain Desais are appointed by the
Collectors, Shaikdara or village inapectors. According to the original orden
of (the British) Government, their hereditary sh&ree in their vatam ought
to be considered remuneration for thia dnty as well aa the annual pay which
they receive from the ' Sirpao Fund.' But the office and remuneration of a
Shaikdar have long been looked on aa purely stipendiary." The other
exceptions <lo not relate to Supa. The tabular statement at page 6 BhoTI
that no portion whatever of the income of the .DesaiB of Supa waa applied
in the support of officiating Desai&, and that out of the whole of that
pargana the officiating Majmudara received from the land only Ra. 9-4.
And page 8 shows that, in the same pargana, the receipt. of "nmt of
ser\"ice land from inam and jagiri villages in Supa were, u regard.I Deail,
nil, and as regards Majmudara Ra. 5 only. The report in p. 18, para 32,
states that the Desaiadenied that their emoluments wereheld onaervice tenure,
and that they were liable to be called on to perform district eervice or UlJ
aervice except that of heads of villages, and in pp. 15, 16 and paras. 26, Z1
and its Appendix .A, shows that, so far back as A.I>. 1833, the J>euiB re-
fused to permit any appropriation from their Desaigiri to pay the Shailularw,
and that the contest terminated by the latter being paid out of the SirplO
Fund-of which some account is given in Appendix A (see pp. 31 to 341
paras. 12 to 22). It is a fund the title to which was in dispute betw-
Government and the Desa.ia. There is not any direct evidence that Shaik·
dare were employed in the village of Kabilpur. A compo1itiou. for a fixed
payment to Government of 3 annae in the rupee wu offered by the Com•
missioners, but refused by the Deaais of Surat, p. 10, paru. 7-9. The
Commissioners in their report expreued their opinion to be that, althoagh
the Desais had not for many years rendered service, the right to demand B
was only in abeyance (p. 16, para. 28). Before extracting the remarb
in the Commisaioner's report aa to Kabilpur and five other villages, we
should mention that it haa been admitted that the village of Toll being
an inam village and the villages of Vigam, Magad, and Nanirpur, being
V azifa villages, are partially exempt from payment of revenue. All ol
these villages are in Supa. JJ t:> Toli and five other villasea, the C,om.
miuioners make in para. 47 the following obeervations :-
•' There are &ix villages held by Desais under the name of • Sitbri
Udhad Jamabandi.' Five of these are in Supa, and one in Chiiili Kubo;
a fixed annual lump &1111esament is paid for these villages, which bM no'
varied, in amount since the introduction of British rule, and the right to
hold them at thia fixed amount is claimed u a Vatan emolumen~ The
five Supa villAges are the following, and a • N nksan' or lou to Govenumai
of the difference between the fixed and the fnll &88elllllllent hu hitheno " -
11hown for them in the accounta under tho head of • lni.mi &rmjami ' :-
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BOJIBA Y HIGH COURT REPORTS. 263
the Tarije.s, but I cannot say whether the land was Mafi or 1875.
not. I have given this reply by the Collector's permission. GovzRNMENT
OF BoMBAY
v.
Fixed-lump Nukaan. HARlBHA'I
asae88ment. MoNBBA'I.
Jamalpur Ra. 352 R&. 649
Vurwari (Virwadi) 475 851
Vu11ulpore (Visalpur) " 28
" 524
Toll " 385 ,, 1,628
Xubirpore (Kabilpur) 1,098 ,, 1,606
"
Ra. 2,338 Ba. 5,088
" For Chikli Kusbo, the lands comprised in each have never been a1111esaed
at Bigoti rate&, no ' Nuuan' baa hitherto been shown. The fixed lump
&186118ment hitherto paid is Ra. 84-13-2, and the full aaaeaament, aa fixed
lut 11eaaon by the Survey, ill Ra. 636.
"48. The information to be obtained about these villages is of the moat
meagre kind ; the Desaia are unable to show any proofs whatever of any
other title than preacription. A reference to the Poona Duftur, made
some years ago, showed that Toll was held as an alienation during the rule
of the Peshwa, and that the four Supa villages were entered as Khalsa·
Regarding Chikli Kusbo, the Durbar ofhia Highness the Guicowar was re-
ferred to aome years ago, and replied that the village was entered as
Khalaa, while the district belonged to His Highne88, But it ill proved that
the Desaia had paid the same amount of fixed aaall88JDent for the Kuabo for
several yeara previoua to the introduction of British rule. The only inform·
ation which we can find about these villages, upon the early records of
the Surat Collector's office, is contained in a letter of Mr. Morrison to the
Collector of Kaira, in 1820, in which, apeaking of Desaia' emoluments, he
aay11 ' aome Deaaia hold entire village11, paying only a fixed salami annually
to Government, but there are only six small villages of this description
under Surat.' The five Supa villages and Chikli Ku11bo are the only onea
which can be referred to, and from thia it would 11eem that Mr. Morrison
conaidered them to be Vatan.
" 49. We are of opinion that all six village11 should be included among
Vatan emoluments, and, whatever settlement may be decided on for the
Vatana generally, applied to them also. As a Nuksan has hitherto been
ehown for the Supa villages, we have, pending the decision of Government,
included it among the emoluments of the Desais in one statement, but have
not done so for Chikli, as no Nukaan has hitherto been shown for it, and aa
the Revenue Commiaaioner, two or three yeara ago, ordered the village to
be fully a1111eaaed at the introduction of the Survey, which Captain l'reecott
has done, and the Desaia have appealed against."
With Chikli Kuebo the present auit is not in anywiae concerned. The
le"8r of Mr. Morrison, referred to in the Report, was datea lat No,.ember
1820. It is given in Appendix A to the report, p. 29, para. 6. In the
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264 BOMBAY HIOH COURT REPORTS.
1875. The Ta.rijas used to be kept or written by the Majmndar in

GovuNlrENT the Supa. Tha.na. (Kacheri). The Desaie were never required
oF BoM.BAY
11.
to write in the Thana.."
HARIBBA'I
MoNBBA'I. printed copy the word " Salami " ia in two places misprinted " aa.lary."
The term "salami" signifies a quit,rent.
In para. 35 of their report the Commissioners submitted, for the deci-
sion of Government, whether, as the Vatandars had refuaed either to
11erve or to compromise by paying three annaa more of revenge in the
rupee, Government would declare that the vatana ahollld lapee (ceue) oa
the deaths of the present holders.
Mr. Rogers, in his letter to Government dated 23rd Nonmber 1865,
forwarding that report, in para. 7 et #1/.· (page 3 of the printed conespoad•
ence already mentioned) said-
" The settlement that ahould be carried out remains to be comidered.
That offered to the Surat Desai.a by the commission ia a non-ee.rvice Bet&
ment of three annas in the rupee, and to thoee of Broach, including Unk-
leaur, 4-i annas, as already mentioned. T&k.i.ng all of the circumatancu
into consideration, I think the offer ia fair with regard to both dirisio1111,
and would not recommend the acceptance of my lower term&' '
In para. 8 he continues thus :-
" The Desai.a having, however, declined to accede to this oompromue,
something must be done· with a view to getting rid of the anomalous 1tate
of matters in Surat and to exacting efficient service in the districts of the
aub-diviaion and Unkleaur. In the former the vatana are so much sub-divi-
ded as to preclude the possibility of efficient service being obtained in aay
one district, inaamuch as it is extremely improbable that the Civil Courts,
to which an appeal would certainly be made, would recognile the authority
of Government to throw together and consider u one vatan, with a view to
employ a properly paid officiator, what are really sub-divisions of original
larger vatana ; precedents abound in the Surat Court under which ~
separately recorded sub-division would now be regarded as a separate
vatan and be treated accordingly. Add to this the want of education on
the part of the v.itandars generally, and the other reasons adduced by the
Commission in proof of the inexpediency of attempting any meaaure of the
kind. There is, however, no alternative between enforcing service from
each separate sub-division under the provisions of Act XL of 1843 and the
laying down of some such general rule as that proposed by the Commillioo
in paragraph 35, viz., to declare that they shall all lapee 011 the de&Ulof the
present holders. This would, ~ . look ,o ~ a wlloluak mtClllll't of
confecation that it would be better, in my opinion, to endeavour to carry
out the other alternative, and exact some kind of service from every 1111b.
·division of a vatan, however 1J11all. This wosld probably pro'N tndici-
ently objeotio:oable to induce the Vatmdars to come l'OUDd to the . . . .
offered."
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B<>Xliy UIOH COURT ,noB'J.'S. 265
The Tarijas from 1848-49 to 1868-69 have been pro~ 1875.
duce<l, and support this portion of the evidence of Kesavlal OovBRNMPT
OJ' BoJJCB.,lY
the Mamlatdar. They show the gross revenue of each year, "·
and that it is composed of two portions, whereof one is the ~";;=:,~.
Bandhi-jama or portion which has uniformly been paid to
Government, and the other is the Mafi or remitted por-
tion retained by the Desais. The latter portion is called
Nuksan or loss, i.e., alienated by snd, therefore, lost to Gov-
ernment. The Nuksan is, for every year from 1848-49 to
1868-69, stated to be Rs. 1,606. These Government re-
cords accordingly testify that . the village of Kabilpur was
then deemed to be partially alienated, and being so appar~
ently without condition, itmay, according to Robertson, be
properly calle<l inami, a term sometimes very loosely used.
The village is so called in some of the Tarijas of the period
of which w-e are now treating. We have already observed
that the phrase '' Sare.njami,, (which also occurs in some
of the same Tarijas) must, on the basis of non-liability to
service, on. which both parties have concurred in treating
this village in this and the District Courts, be regarded as
a misnomer. An unsuccessful attempt on behalf of the
defeDdante (appellants) was made to induce the District
.Court to believe that the Tarijas, &c., from 1848-49 to
1868-69 were prepared by the Majmudar in fraudulent col-
lusion with the Desais, and more especially so in showing
the Mafi or Nuksan of Rs. 1,606, a bold conjecture unsup·
The foregoing enracta from the report of the Guzerat Vatan Commis,
aion and of the Revenue Commissioner's letter have not been made for
the purpoeo of deciding any queation as to the liability of the Desai.a to
service in "'8pec\ of Kabilpur, bot to show the view which the Guerat
V atan Commiuion bad taken u to the invariability of the aaeeS8Ulent upon
that village. A.a already observed, both panies, before the Court of First
Instance and before $hi.a Court, have treated the village as not liable to
service. We must,°therefore, uenme that it ill not BO liable, and we are
thus relieved from oonsidering what, on the opposite hypothesis, would be
the legal oonseqoenoea of the refusal of the Dea&is to render service. The
evidence before the Gozerat Vatan Commiasion as to the invariability of
the auessment was not so full or so strong as the evidence given in this
cause to the same effect, yet that Commi88ion, rightly aa we ~
came to the conclusion that the a1111eesment wu fixed.
s 117-u
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266 BOXBAY HIGH COURT REPORTS.
1875. ported by any evidence whatever. What was termed fraud

Gov&1NM1tNT there has from the learned Advocate General in this Court
0 ' Bo~~AY received the milder appellation of probable mistake, or
HARIBHA.'1 ignorance. We fail to discern either fraud, mistake, or
MoNBHAI.
ignorance in the exhibition of the N uksan or in the use of
the terms 'Bandhi-jama' or in6.mi. The new form of Tarija
introduced in 1848-49 and showing greater details of account
than were contained in the former Tarija.s, was prepared in
accordance, as Kesa.via.I. the Mamlatdar states, with the
orders of Mr. Shaw, then Revenue Commissioner. It is no,
pretended that there was any attempt on the part of the
Majmuda.r to meddle with the amount of revenue (the
Bandhi-jama) payable to Government. That amount, when
the Majmuda.r's allowance of 15 annas and one pie, which
had formerly appeared separately, is added to it, remained
the same after as before 1848-49. The term 'Bandhi-jama'
(fixed revenue) was shown, by the previous history of the
payment which disclosed its uniformity, to denote most
truly the nature of the tenure by which the village was en-
joyed. It is not by any means a term or tenure novel t-0
this Court. It occurred in many entries in number Kharoaa
strongly relied upon in Regular Appeal No. 16 of 1873,
Lallu Harrihhai v. the Oollector of Surat (decided 1st July
1873), on behalf of the Collector, and was then treated by
him as a well-known tenure in his collectorate. But it is
said that Kesavla.l has testified that Kabilpur is a • Hunda-
wari or Khatawari' village, which names, he on a subse-
quent day said, would be more properly rendered 'Hunde-
bandi or Khatabandi,' which latter terms he stated to be
identical in meaning. On looking into Mr. Elphinstone
Robertson's Glossary, p. 58, Art. 14, we find that Bunde
and Hundo both mean the same as 'Udhad,' which, at p.
5, Art 11, is described as a '' fixed sum paid to Governmen,
for land without reference to the nnmber of bighas or value
and description of cultivation," "Bandhi," used as a pre-
The reply of Keaavlal in hie e,idence that '' the Deaaia were nuer
required to write in the Tbana" (kacheri) waa evidently elicited for iM
purpose of showing that they had not an opportunity of tampering wnla
the Government accounts.
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BOKBAY HIGH COURT REPORTS, 267
fat.ory adjective, means fixed. "Udhad jamebandi "Robert- 1875.

son describes as "a fixed una1oorable revenue settlement, GovBRNMKNT
either for a. whole village or villages without reference to the ov ~llBAY
extent or nature of the cultivation, and without any right HARIBHA'I
MoNBHA'I,
on the part of Government to interfere in the internal
management " (i), Kesavlu.l, speaking of Kabilpur, as al-
ready stated, said:-" Udhad Dharo '' (assessment in lump)
~, is taken from the whole village." The Desa.is examined
by Mr. Mulock (Assistant Collect.or) in 1869 (Exhibit 97)
described Kabilpur as Bandhi-Jama and Udhad-Jama (see
also Exhibits 78 and 105). Mugatraya Maniraya, who had
been Mamlatdar of Supa in 1854-56 and 1861-63, who waa
examined. as a witness for the plaintiffs, a.nd Kuvarji Shan-
karji, who was examined a.a a witness for the defendants,
desoribed Kabilpur as a Bandhi-jama village. Even Ka.shi-
The liability to service being elinunated from the case, it standa thus :-
Kabilpur has been proved to be a hundabandi (udhadbandi) village, held
in proprietorship hereditarily by the plaintiffs and their co-parceners,
These holders are jointly respomible to Government for payment of tho
revenue, and are, in all material respects, identical with bhagdars and
narvadars, and, therefore, within the scope of Section 8 of Regulation X VII.
of 1827. Kabilpur has further this special peculiarity, that its revenue
payable to Government has been proved to be invariable, which, being a
peculiarity of asseasment, i11 by the same enactment required to be re,
apected and preserved.
The order complained of in this suit is more stringent than the course
deprecated by Mr. Rogers as savouring of wholesale confiscation. That
course was a resumption of the partial exemption on the deaths of the
incumbents, and rested on the intended juatiftcator, basis of a mppoaed
liability to serve and refusal to do so. The order complained of in this
suit is not sought to be justified by any such liability to serve and refusal,
and has resumed in the life-time of the present incumbents the ~ght to
partial exemption from revenue. The effort on behalf of the defendant.,
both here and in the District Court, has been to support that order on the
ground that the plaintiffs and their fellow-parceners are ordinary khal-
aa-tenants, the assessment of whose land may be enhanced at the pleasure
of Government. The weight of evidence in the case is, in our opinion,
quite inco1111U1tent with any such theory.
(i) On consulting our translator, we are of opinion that Mr. Robertson

should have written ' udhad-bandhi-jama' not' udhad-jamabandi.' The
quality of immutability of &SBesament, which he intended to expre11, is not
implied in the latter form.
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268 IJOllB.lY HtOH COURT Bll'OR'J.'8.
1875. nath Govin~ji, who appears to be the t>rincipal ettemy of the

GovKRNIIBNT plaintiffs, a.nd to have assumed the position of an informer
DP :S:~" against them, spee.ka, so far back .as the 25th June 1850,
~ARIBHf'1 of Kabilpur as a. Ba.ndbi-jama Tillage. Snrbhai Sbankerji
...,.Bll.41. •
(No. 48) a Des&1 and one of the sharers in Kabilpnr, but
who had Pefnsed to join his e<rsharere in this suit, has been
examined for the appella.nt,s (defendantiS), and, though ·
saying that Kabilpur is a Government village, calls it a
Bandbi-jama. villag&. His evidence, aa to its being a Govem-
ment village, may have acquired ita complexion to some
extent from the oircumstance that recently he has obtained
the Patelship of Ka.bilp111' and four other villages, and he
has mortgaged his share in Kabilpur (le).· It is admitted
by counsel that the list of " tenures recognized by the
custom of the country, specified in Appx. A. of Regulation I.
of 1823 and repeated in Appx. A. of Regulation XVII. of
1827 in oonnexion with Cla.use' 2 of the repealed Section 35
of that Regulation, is not exhaustive," and that admission
is supported by the cle.u.ses of those Regulations to which
those appendices belong.
Mr. Simpson, Colleotor of Su.rat in 1842, appears to have

entered into some investigation of the plaintiffs' title to
partial exemption from assessment, but what precisely was
the nature of that prooeeding does not appear beyond the
fa.et that he did not alter the assessment.
Mr. Ravenscroft, when .Aoting Collector of Surat, on the
27th of February 1855 sent to the Desais of Kabilpur a
regular notice (Exhibit 216) under Regulation XVIL of
1827, Sec. 40, in which he appears to ua to have distinctly
treated a holding under a Bandhi-ja.ma as a recognised
tenure according to the custom of the oountry, He recites
that the Dess.is enjoyed " the village bf Kabilpul' -.st. Band-
hi-ja.ma a.nd do not pay the full assessment," and he called
upon them to defend their right to the Mafi (exemption)
(i) A, to the honility of mol'tgllgon to the "IIQD1UIDC8 of tile
Bhagdari and Narvad&ri tenure. notwithstanding the desire for and in•
tereat in that t.enure of their coparcenen, - Mr. Pedder'a Report
No, CXIV. Bpinbay Government Records, p. 19, para 35,
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BOVBAY HIOH COURT &BPOSTS. 269
tans enjoyed, within two moaths after the receipt of the 1875,
notice, oth.erwise their lands woald be folly assessed. The GonRN1n1n
Desats. sent in
. a wntten
. def
ence, c1aimmg. K abilpur as a OJ' Boxu
"' Y
Bandlti-jama, and relying on thA antiquity of their title ~;~~1
and upon Regulation VL of 1888, which was then in force.
On the 13th November 1856, Mr. Ravenscroft made a re-
quisition (Exhibit 218) for more papers, and in that requisi-
tion again seems to have regarded a Bandhi-jsma. as a. re-
oognized tenure, and requires the Desais to defend their
title to it. They complied with that requiaition by sending
in some papers in January 1857. ~o further steps appear
to have been taken by Mr. Ra~enseroft, notwithstanding
Seo. 47 of Regulation XVII. of 1827, which, though since
repealed, was then law. It provided that '' Whenever the
holder of land held wholly or partially exempt from assess-
ment, or any person appearing to support his claim, has
given a written a.newer to the Collector's not.ice, issued
in oonform.ity to Sec. 40, and, if the claim is founded on
specific. grant, has produced a written deed, or shown suffi-
cient ea.use for not producing it, it shall not be competent to
the Collector to leave the question undecided without the
consent of the party in writing, on receiving which the
Collector shall furnish him with a copy of the record of his
proceeding, which shall contain an intimation that his title
has not been decided upon, and is subject to future ex-
amination!' :Mr. Ra.venscl'Oft did not obtain the consent
of the Desais in writing to leave the question undecided,
nor did he make any compromise under Sec. 48. The de-
fendants have not called him as a witness to explain why
he did not proceed with the case. If he became as well
aoqaa.inted with the faets as the District Court and this
Oourt now are, however, we have no difficulty ~ understand-
ing why an officer of his high sense of justice and reputation
for discretion should abstain from advising any increase
of the assessment upon Kabilpur. As we are deciding this
case upon other grounds, we do not deem it necessary to
say what was the precise legal effect of the abandonment
in 1857 of the regular inquiry (commenced under Section
40 of that Regalation by Mr. Ravenscroft) when taken in
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270 BOKBAY HIGH COURT Rm>ORT8.
1875. .conne~on with Section 47, which continued in force until

Govn10o1ENT 1863. We, therefore, do not give any opinion as to whether
o:r BoKBAY the subsequent· inquiry and prooeediogs, whioh resulted in
"·
RARtBHA'I an enhancement of the assessment, were invalidated by
M0NBBA I.0
Section 47 of Reg. XVII. of 1827. But we may say thiR

much, that the unexplained cessation of Mr. Ra.venscroft's
proceedings does not tell favourably on the case.
From 1857 to 1869 the plaintiffs seem to have been per-

mitted to ~main in peaceful enjoyment of their village of
Kabilpur at its ancient assessment. In the latter year,
Mr. Hope then being Collector of Snra.t, an inquiry was
conducted by one of his assistants, which terminated in the
order for the enha.noement of the assessment on Kabilpur
from Rs. 1,089-13-1 to Rs. 4,106-9. The village had been
previously surveyed. The plaintiffs complained of the sm'-
vey, and assert that Mr. Hope then informed them that
the survey was being ma.de with a. view to ma.king a. vat.an
settlement with them ; but that, instead of that being done,
the full assessment of Rs. 4, l 06-9 was pla.ced upon the
village. The defendants' principe.1 witness Kesavla.l saya
that when Mr. Hope returned the answer to the plaintiffs
as to a settlement, he, Mr. Hope, was under the impression
that Kabilpur was held on service tenure.
The enhancement is sought to be justified by Bombay

Act. I. of 1865, Section 25, which enacts that " It shall
be lawful for a.n officer in charge of a. survey to a.ssesa to
the la.nd revenue, under such general and local rules as may
be in force in the survey under his charge, all lands cultival-
ed, or uncultivated, and whether hitherto assessed or not,
provided that such assessment shall not be levied for more
than one year, until the sanction of the Governor in Council
shall have been obtained thereto, and provided tJu,,t it ikall
n-0t be leviable from any land hel.d cind entered in tM Land
Registers as wh-OUy <>r partially ezempt from payment of land
revenue, euept to 8'Udl, amount as iB in accordance with I'*
'IJWU8 practice, or any law which has been, or may hereajurr
be, enacted relating to lands so held."
.. Digitized by Google
BOVBA T DIOR COURT REPORTS. 271
Section 49 of the same Act enacts that : - 1875.
" The provisions of this Act shall not except for the Gov11:RNMENT
' 01' BoMBAY
purpose of defining village boundaries, be applied to alienat- "·
HARIBHA'I
ed villages : Provided that it shall be competent to the MoNBBA·1•
Governor in Council to extend, by notification in the Gov-
ernment Gazette, all or any of the provisions of this Act to
every such village, on application ma.de in writing by the
holder thereof, and further, to apply the provisions of this
Act to all Government lands situated in alienated villages."
" Alienated village " is defined in Sec. 2, Cl. "· ; but it is

unnecessary to set forth that definition, a.s we do not con-
sider it necessary to give an opinion as to whether or not
Kabilpur, being only partially exempt from payment of land
revenue, is an alienated village within that definition.
The 51st Sec. enacted that "this Act shall be taken as
part of Regulation XVII. of 182 7," but that Sec. was repeal-
ed by Sec. 20 of Bombay Act VI. of 1868.
A question might arise how far Sec. 25 of· Bombay Act I.
of 1865 controls Sec. 2, Clause 1 and Sec. 8 of Reg. XVII. of
1827, and Sec. 21 of Bombay Act VII. of 1863, but we see
no necessity for now attempting to solve that question, in-
asmuch as we think that the village of Kabilpur fa.Us within
the concluding proviso of Sec. 25 of Bombay Act I. of
1865, which prohibits the levy of any assessment " from
land held and entered in the Land Registers as wholly or
partially exempt from· payment of land revenue, except to
such amount as is in accordance with previous practice or
any law which has been, or may hereafter be, enacted relating
to lands so bald." There is not any definition of the term
u Land Registers'' in the Act. No separate Land Register
for Kabilpur, such a.s appears to have been contemplated
by Reg. XVI. of 1827, Seo. 22, seems to have been kept by
Government. The Advocate General, however, with be-
coming candour, declined to argue that the Land Registers
mentioned in Sec. 25 of Bombay Act I. of 1865 are only
those named in Reg. XVI. of 1827. He said most justly
that " it would not be decent to contend that, where Govern-
DigitizedbyGoogle ~
272 BOXBAY BIGB COUJlT BIPOBT8.
1875. ment baa failed to keep Register. under Reg. XVI. of 1827,
GovuNK&NT Sec. 22, the village books or other records may not be
0 • ~~.a.v looked to on claims for total or partial exemption from
!f•RI88!'-.1 ~ment of land revenue," but he argued that · the entries

,..OJIBB.4 L r~
of Kabilpur in the Government records from 1848 to 1868
as, to a certain extent, rent free, were not sufficient to
bring it within tbe proviso in Sec. 25 of Bombay .Act 1
of 1865. B11t we think that these entries, taken with the
previous entries from A.D. 1691-92 down to A..D. 1848 (show-
ing, as we have already held, a uniform payment of a sum
much below the fall assesse.ble value of the lands dnring
that time) satisfy the exigency of the proviso in Seo. 25, and
abundantly establish that Ka.bilpur is partially exempt from
payment of land revenue.
In recapitulation, then, we hold_;.} st, that Kabilpur is an

Udhad bandhijama village settled for heredita.rily and of
right by the plaintiffs and their co-parceners .in the gross
at a fixed immutable rent. independent of the quantity of
land under cultivation and payable to Government, and, as
such, falls, in respect of the joint liability of the holders
I.or the revenue in the gross, within Section 8 of Reg. XVIL
.of 1827. 2ndly, that the plaintiffs have succeeded in show-
ing that the same village is land situated in a district ceded
by the Peishwa before 1803, i.e., in 1802 to the British,
.held by the Plaintiffs and their predeceBSore in title par-
tially exempt from payment of land revenue under a tenW"e
recognised by the custom of the couJ1try for thirty years and
upward:J, and, therefore, falls within the claims for exeIUption
mentioned in Clause .21 of Bombay Act VII. of 1863. And,
lastly, that whether Section 2, Clause 1 and Section 8 of
Reg. XVII. of 1827 and Section 21 of Bombay Act VII.
1868 are controlled or not by Bombay Act I. of 1865, the
same village is liable to assessment to the extent of Rs.
1,089-:18-1 only, inasmuch as it falls within the conclud-
ing proviso in Bombay Act I of 1865, saving from further
assessment a village ~ntered in the Land Register as pa.r-
.t~ Jxempt from payment of land revenue.
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BODAY BIOH COURT BIPO:ITB, 273
In conclusion we must hope that the facts of this case 1975.
were not fully known to those members of the Revenue GoVEBl'rKlllff
Department on whose advice the assessment on this village 0• Bo.llB4Y
1'.
of Kabilpur has been nearly quadrupled. Such an absence H.urmu'I
Mol!ls&a.'1.
of knowledge, however, would indicate a system of investiga-
tion so imperfect, perfunctory and one-sided as, if not liable
to judicial supervision, must endanger the rights of pro-
perty. Of that system we regret to say that this case would
be no isolated instance. We are reluctant to think that the
alternative hypothesis could be true-namely, that, notwith-
standing an ample knowledge of the facts which have been
so satisfactorily established in the District Court and here,
there could have been so much indiscreet over-zeal for the
revenue, as to induce any officer to manifest such a deliber- ·
ate disregard for ancient vested rights as it would be pain-
fol to think could be possible under British rule. A re-
currence of similar ea.see would go far to shake the belief of
Her Majesty's subjects in this country in the permanence of
any landed property whatsoever.
Happily for the plaintiffs they had provided for them by
Mountstuart Elphinstone and his colleagues, who, in this
respect, walked in the footsteps of Lord Cornwallis, a Civil
Court in which both parties and their witnesses might be
fully and fairly heard, and the voluminous documentary
evidence thoroughly and candidly scrutinised, and resump-
tion, not to say confiscation, of a property of more than two
centuries standing, (proved to have been held at a moderate
fixed rent for about 180 years of that time, and which may
· have been so held for a much longer period) successfully
resisted. To quadruple the rent, as the Revenue Depart-
ment has attempted to do here, is virtually to confiscate the
property.
It is too much to expect with any confidence that an
ez pa.rte proceeding in such a ca.se as this can be satisfactory.
The revenue officers, if unaided by hearing the facts fully
debated by the professional advisers of the parties, and left
to struggle alone through an enormous mass of documents
and accounts, may err on either side. Here we find them
B 117-i
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274 :BOlOIAY HIGH COUltT REPORTS.
1875. erring on the side of high fiscal views. In the Kanara case,
GoVltRNMENT on the other hand, it was manifest that the opposition offered
OJ' BoMBA.Y
v. to the survey and a.ssessmen t, an d t h e consequent lit'igati'on,
HA.111Bu.a.'1 were, in a. great measure, due to the sympathy of some of
Mo~BHA.'I, f th la d
the Collectors having been excited in favour o e n -
holders, by imperfect investigations and erroneous views as
to the authority and acts of Sir Thomas Munro. We are
not for a moment to be understood as saying that those
Collectors intentionally sought to raise that opposition or
litigation, but their opinions, confidently expressed in re-
ports to Government, were on record in. their kutcherries,
and information, contained in the archives of a Kutcherry or
other public office in this country, has a singular facility in
ma.king its exit if there be any person interested in assist-
ing it to do so. Consequently the views of those Collectors
were well known througltout the province of Kan.are.. If
the decision of the Kan.are. case had been left to those officers,
or had it been based on their reports, the result would have
been the opposite of what it was in Court.
The plaintiffs ·have established their case with a degree
of clearness almost marvellous, when the length of time and
of the accounts is considered. One volume of papers con-
taining evidence of witnesses and documents consists of
858 pages. The other volume comprises 654 pages of ac-
coun~ and papers, all of which have been translated. It
could not be expected that, with the multifarious duties
which press upon the members of Government, they could
_have found time . to become acquainted with the contents
of such a pile. We cannot, however, suppose that if a full
and unbiassed investigation had been made, and the result
properly laid before Government previously to the enhance-
ment of the assessment in 1870-71, the plaintiffs would
have been foroed to incur the anxiety and expense of defend-
ing their ancient rights in a Court of Law.
We affirm the decree of the District Court with costs.
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EBIU.TA IN THE APPENDIX TO 12 BOMBAY HIGH COURT REPORTS.
Page 22-line 20 from top-for" parcel " read" parcels."

Page 25-last line-for "publicl" read "publicly."
Page 27-line 7 from top-for " district'' read " districts.''
Page 28-line 21 from top-for '' ordnary" read" ordin-
ary." ·
Page 45-lines 26 and 27 from top-for" (signifying in
its primary sense "birth" read" (signifying in its primary
sense " birth ")."
Page 69-note (p), last line-for "where'' read "when."
· Page 125-line 24 from top-for "inferma.tion '' read
"information."
Page 136-line 4 from tho foot-for " appear " read
" appears."
Page 14, 7-notc-line 3 from tho foot-for '' news " read
"views."
Page 164-lino 14 from top-insert semi-colon a.ftor
" value" and efface semi-colon after "improvement." ·
Page 174-line 13from top-for "granter"read "grantor."
Page l ,8-line 17 from top-for "Nusht (nushf)" 1 read
"naslit [corruptly nusht] ."
Page 179-line 14 from top-for'' 12th July 1827 "read
"6th July 1827."
Page 103-line 4 from foot-for" oxpressely" read "ex-
pressly."
Page 196-line 19 from top-for '' they do not" read "~t
does not."
Page 197-lines 9 and 10 from top-for" land and re-
venue " read " land revenue."
Page 205-line 3 from top-for "expresseed" read " ex-
pressed."
Page 211-line 6 from top-after "India" insert a comma.
Page 211-line 9 from top-for "perfectly" read "perfect.''
B 266
Digitized by Google
Pag~ 211-line 15 from top-for "Not, only Akbar II read
''Not, only Aurangzib."
Page 224-line 12 from the foot-for "plaintiff''' read
'' defendants."
Page 249-line 4 from the foot-for "follow- 11 read "fol-
lows."
Page 258-note-line 1-for " Marathas" read "Mah-
rattas."
Ibid-line 6-for "Maratha " read "Ma.hratta."
Ibid-lines 9, 16 and ts~for ''Mahrathtas'' read" Mah-
rattas."
lbid--linc 24-for " Mahrathta" read '' Ma.hratta."
Digitized by Google
I
Digitized byGoogl,...-
Vol. I., BCOND EDITION, Parle I., II.
price Ra.~.
APPENDIX and INDEX to ol.
Vol. II., BCOND ED o

together; p'l'ice
Vol. 11., Part ill., and INDU.; price
Vol. Ill., ICO D EDI110ll., Parts I.,

sewn together; pricct • 7
Vol.
Digitized by Google
Digitized by Google
[. •.-!' ', ::,;•1 ,,.,.,,Googk

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DEf; IL£]) IN T:J r,

-~.... L- ;... (',..:, ff <)F ll().:\1 lt\. Y. :I

\\. L h\r:T, BA-, I/

GO\' EH.~ i\lE~T l'ENTH1\ L PRE::i1'.

IDGH COURT OF BOMBAY.

[APPELLATE 0BIMINAL JuBISDIOTION.]

1876. Branson and Hon'ble Mandlik for the acquitted accused.

Mamdlik :-The Government in their appeal to this

(a) 10 .Mad. Jar. 6'

1875. tion, namely, of one-third of the receipts, for himself. He

February 10,-The fabrication of accounts in this case, if

1876 TJsis re-trial is ro be held. by a different Court, but, as held,

[ORIGINAL CIVIL JURISDICTION.]

January 19. Suit No. 138 of 1871.

M1BZA' ALI AKBAR, KM.n Bahadur . . . . .. Appellant.

W1snoPP, C.J., said :-We think that the petition itself

[ORIGINAL CIVIL JURISDICTION.]

Suit No. 814 of 1873. 1875.

LAKsRM1BA.'1 ................................. ••• Defendant.

Pra.ctice-<J08U-Pagmmt of the cosu of a aummona not a cond.ition precedent

Iwvera,ri,ty for the plaintiff :-The Court has no power to

~~ BATLIT, J. :-The learned Advocate-General bas cited no

[ APPELLA'J'.E 01 VIL J U,RISDIOTION.]

Februar7 to. Special Appeal No. 82 o/lS.74.

Sm,»MA'N VA'nu and three others ...... ... Appellllfft.11.

r ffldor and Jlwrc1toffl,.....sak of land-Sped~ of a M J - M ~.

TB IS was a special appeal from the decision of Dell.

[ APPELLATE CIVIL JURISDICTION.]

Special Appeal No. 362 of 1873. February 10.

R.urA'BA'I SA'HEB PATVAR·} Defendants and Appel,.

THIS was a special appeal from the decision of R. F.

SMntaram Nm-6,yan for the speci&l appellants.

W:HTBOPP, C.J.:-The point as to pos8e88ion in clause (c)

[ AWELt,A.T.& CIVIL JUB.1SBI01'.ION.]

Special ..d.ppeal No. 182 of 1874. 1815.

LAPPELLATE CIVIL J URISD{CTION.]

RA.M.A 1 BA'ISA1HEB PATVAR- } . tijj·

GoPA'L KA'sm ............... Defendant dnd Respondent.

,,,.itby a Hiftdt1 ,oidow lwm,tg a Ron- ./,imilati011- A~ XIV. of 1859- Certi-

In special appeal, .the principal contention was o.n the _ _!_8?_5·_

been instituted on the 17th March 1871, when he was made a

Shan.Mram Naraynn for t.he respondents submitted that

SARGENT, J. :-This action wasoriginallyinstituted by Rama-

1875. not maintainable by Ramabai either for herself or for her

(ORIGINAL CIVIL JnRISIDICTION.] 1875.

Suit No. 685 ef 1873 ( Appeal No. 259.)

1876, Edal3i 8ottlewalla., an adjudicated insolvent, .to recovEir

•· ·· ·.. iants saying that the maximum real value of _ I8_i_5_. _

. , ~ ._ .. Mancha1ji Dorabji was the agent of Ratanji

\\lie : !Jer Ratanji Edalji Bottlewa.lla was interested in

1875. to ha,e tendered evidence of the price of salt at Calcutta,

wa.s a consolidation rule as to other suits brought against the

__1_s7_5_._ tantCollector of Se.It Revenue in Bombay, proved that no duty

for the purpose of exporting the same to Calcutta. per ship

Mr. Maidment stated that the amount of duty on the salt

__1_s7_5_._ determined in this Court under clause 29 of the old

(,) 3 Bi.ngh. N. C. 266.