UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 S(^H()OL OF LAW 
 LIBRARY
 
 j-fcry^ CfZ^c. S^r.^-^^c crl l-U 

 
 THE LAND-LAW OF BENGAL.
 
 Taaore LaC Gectures — 1 895. ^ Q —y 
 
 THE 
 
 LAND-LAW OF BENGAL. 
 
 BY 
 
 SARADA CHARAN MITRA, m. a., b. l. 
 
 Ill 
 
 Cafcuttd: 
 TH ACKER, SPINK & Co., 
 
 PUBLISHERS TO THE UNIVERSITY OF CALCUTTA. 
 
 1898.
 
 I 
 
 Printkd by R. Dutt, 
 HARK PRESS : 
 46, Bechu Chatter jbe's Street, Calcutta.
 
 CONTENTS. 
 
 PAGE. 
 
 Table of Cases Cited ..... . . i 
 
 LECTURE I. 
 Introduction ........ i 
 
 LECTURE IL 
 Khas Mahals 32 
 
 LECTURE in. 
 Revenue-Free Lands ...... 5^ 
 
 LECTURE IV. 
 Permanently Settled Estates . .87 
 
 LECTURE V. 
 Permanent Tenures (Taluqs) .132 
 
 LECTURE VI. 
 Permanent Tenures and Under-tenures . 169 
 
 818406
 
 CONTENTS. 
 
 PAGE. 
 
 LECTURE VII. 
 Non-permanent Tenures 2o5 
 
 LECTURE VIII. 
 Service Tenures •^44 
 
 LECTURE IX. 
 RAiYATS ^75 
 
 LECTURE X. 
 RA.IYATS (Occupancy and Non-occupancy) . . ■ 297 
 
 LECTURE Xi. 
 Raiyats (Jia/e of Rentj 349 
 
 LECTURE XII. 
 Non-agricultural Lands S^S 
 
 LECTURE XIII. 
 Orissa and the Scheduled Districts . • ■^^l 
 
 INDEX 
 
 425
 
 TABLE OF CASES CITED. 
 
 PAGE. 
 
 Abdool Ali ?/. Yar Ali Khan Chowdhry, (1867) 8 W. R. 467 ... 376 
 
 Abdool Bari v. Ramdas Coondoo, (1878) I. L. R. 4 Cal. 607 ... 162 
 
 Abdool Hakim v. Doorga Proshad Banerjee, (1879) I. L. R. 5 Cal. 4 216 
 Abdool Hossein v. Lall Chand iMohtan Dass, (1883) I. L. R. 10 Cal. 
 
 36, ^f., 13C. L. R. 323 ... ... ... ... 372 
 
 Abdool Jubbar, Moulvie v. Kalee Churn Dull, (1S67) 7 W. R. 81 ... 308 
 
 Abdool Rohoman, Sheik v. Dataram Bashee, (1864) AV. R. 367 ... 301 
 
 Abdul Majid v. Krishna Lai Nag, (1893) I. L. R. 20 Cal. 724 ... 124 
 
 Abhayessari Debi v. Shidhessari Debi, (1889) I. L. R. 16 Cal. 513 ... 220 
 Abhoy Churn Pal v. Kally Pershad Chatterjee, (1880) I. L. R. 5 
 
 Cal. 949, sc.,6 C. L. R. 260 ... ... ... ... 83 
 
 Achut Ram Chandra Pai ?'. Hari Kamti, (1886) I. L. R. 11 Bom. 
 
 313 ... ... ... ... ... ... 128 
 
 Adminislrator-General of Bengal i'. Premlal MuUick, (1895) I. L. R. 
 
 22 Cal. 788 ... ... ... ... ... 290 
 
 Afsurooddin v. Shuroshibala Bula Dabee, Musst, (1863) 2 Hay 664, 
 
 sc, Marsh 558 ... ... ... 184, 295, 365, 366 
 
 Ahmed Ali v. Golam Guffoor, (1S69) 11 W. R. 432 ... ... 177 
 
 Ahsanulla Khan Bahadoor v. Hari Charan Mozumdar, (1892) 
 
 I. L. R. 20 Cal. 86; (1890)1. L. R. 17 Cal. 474 ... 148,149 
 
 Aikcowree ?'. Mohur, (1863) 2 Sev. 115 ... ... ... 72 
 
 Ajoodhya-Pershad v. Collector of Durbhungah, (1882) I. L. R. 9 
 
 Cal. 419 ... ... ... ... ... 117 
 
 Ajoodhya Pershad v. Imam Bandi Begum, Mussamat, (1867) 7 W. R. 
 
 528 ... ... ... ... ... ... 299 
 
 Akbur Ali v. Bhyea Lai Jha, (1880) I. L. R. 6 Cal. 666, sc.,^ C. L. R. 
 
 497 ... ... ... ... ... 83,86 
 
 Akshaya Kumar Dult v. Shama Charan Patitanda, (1889) L L. R. 
 
 16 Cal. 586 ... ... ... ... 45, 46 
 
 Akul Gazee v. Ameenooddeen, (1879) 5 C. L. R. 41 ... •... 355 
 
 Ali Hasan v. Dhirja, (1882) I. L. R. 4 All. 518 ... ... 213 
 
 Alimuddi v. Kali Krishna Tagore, (1884) L L. R. 10 Cal. 895 ... 373 
 
 Alimuddin Khan v. Hira Lalf Sen, (1895) L L. R. 23 Cal. 87 ... 81 
 
 Allhusen v. Brooking, (18S4) L. R. 26 Ch. D. 559 ... ... 210 
 
 Alum Manjee ?'. Ashad Ali, (1871) 16 W. R. 138 ... ... 162 
 
 Ambika Debi v. Pranhari Das, (1869) 4 B. L. R., F. B., 77 ... 154 
 Ambika Pershad v. Chowdhry Keshri Sahai, (1897) L L. R. 24 
 
 Cal. 642 ... ... ... ... 300, 342. 
 
 Ameeroonissa, Begum, Mussi. v. Hetnarain Singh, Maharaja, (1853) 
 
 S. D. A. 648 ... ... ... ^ ... ... 185 
 
 Amirunnessa Khatoon v. E. Browne, (1883) 13 C. L. R. 131 ... 107 
 Amirunnessa Khatoon v. The Secretary of State for India in Council, 
 
 (1883) I. L. R. ioCaL63 ... ... ... 107,109
 
 TABLE OF CASES CITED. 
 
 PAGE. 
 
 Andrews ?■. Hailes, 2 E. & B. 349 ... ... 221,222 
 
 Anund Coomar Mookerjee v. Bissonath Bonerjee, (1872) 17 W. R. 
 
 416 ... ... ... ... ... 223, 301 
 
 Anund Lai Singh Deo, r. Guirood Narayan Deo Bahadur, Maharaja 
 
 Dheraj, 5 M. I. A. 82 ... ... ... ... 415, 416 
 
 .\nundloll Chowdry 1: James Hills, (1865) 4 W. R., Act .\. 33 177, 291 
 
 Appa Rau r. Subbanna, C1S89) I. L. R. 13 Mad. 60 ... '^ 187,225 
 
 Arruth Mipser ?'. Juggiirnath Indra Svvamee, (1872) 18 W. R. 439 ... 212 
 Asanoollah, Khaja r. Kalee Mohun Mookerjee, (1872) 18 W. R. 469 138 
 Ashruf, Shaikh, i'. Ram Kishore Ghose, (1875) 23 W. R. 288 ... 330 
 
 .\udh Beharee Singh, 7-. Dost Mahomed, (1874) 22 W. R. 185 ... 355 
 
 Azimuddin Patwari ?'. The Secretary of State for India. (1893) 
 
 I. T.. R. 21 Cal. 360 ... ... ... ... 105 
 
 B 
 
 Baba 7'. Vishvanatb Joihi. ( I^;S3) 1 . L. R. S Bom. 22S ... 231, 232 
 
 Baboo Gopal Lall Thakoor t. Telud; Chundcr Rai, (1865) 
 10 M. r. A. 183 ... ... ... ... ... 135 
 
 Baboo Iluro Nath Roy -<: Ameer Biswas, (1864) i W. R. 230 ... 291 
 
 Bacharam Mundul v. Peary A^ohun Banerjee, (1883) 1. L. R. 9 Cal. 
 
 813, ,9r., 12 C. L. R 475 ... ... ' ... 83,85.86 
 
 Bakranath Mandal t. Binodram Sen, (1868) i B. L. R., F. B., 25, 
 
 sc, 10 W. R., F. B., 33 ... ... ... 240, ^47 
 
 Bally i:)obey v. Ganei Deo, (1882) 1. L. R. 9 Cal 388 ... ... 263 
 
 Bal Mokoond Lall r. Jirjudhun Roy, (1882) L L. R. 9 Cal. 271, sc. 
 
 II. C. L.R 466 ... ... ... ... 107,110 
 
 Bama Soondaree Dossee 1: Radhika Chowdhrain, (1869) 13 M. L A 
 
 248,5c., 13 W. R., P. C, II ... ... 133, 134, 135, 166 
 
 Baney Madhub Ghose 7: Thakoor Dass Mundul, (1866) 6 W. R., 
 
 Act X, 71 ... ... ... ..^ 233, 337 
 
 Bansi Das a/ins Raghu Nath Das t. Jagdip Xarain Chowdhry, 
 
 (1896") I. L. R. 24 Cal. 152 ... ... ... ... 341 
 
 Barbara Ameena John Elias, Mrs. ?'. Mooushee Mahomed Peezeer, 
 
 (18^4) W. R. 217 ... ... ... ... ... 72 
 
 Barnard r. Godscall, Cro. Jac. 309 ... ... ... 225 
 
 Barry, Mr. G. R., v. Moulvie .^bdool Ali, (1S64) ^V. R., .\ct X, 64 ... 365 
 
 Bastin v. Bidwell, (1881) L. R. iS Ch. D. 238 ... ... ... 227 
 
 Beebee Punchum Koomaree i'. Maharajah Guru Narain Deo, (1837) 
 
 6 S. D. A. 140 .... ... ... ... ... 415 
 
 Beer Chunder Joobraj ?'. Ram Guu\ Dutt, Q1867) 8 W. R. 209 ... 85 
 13eer Cluinde-r Joobraj ?■. Cmakanl Seiii Bahadoor, (1864) VV. R. 
 
 232 ... ... ... ... ... ... 72 
 
 Beharee Lall Roy v. Kalee Doss Chunder, (1867) 8 W. R. 451 ... 83 
 
 Belaney t. Ikdaney, (1867) L. R. 2 Ch. .Xj) 138 ... ... 230 
 
 Beni Madhub Chuckerbutty ?■. Bhubaii .Mohun Biswas, (^1890^) 
 
 I. L. R. 17 Cal. 393 ... ... ... ... 318 
 
 iUni Madhub Roy ?•. laod .\li Sircar, (1X90) I. L. R. 17 Cal. 390 194,202 
 
 IVlhal V. Laha, 2. N. VV. P. Rep. Civ. Ap. 284 ... ... 64 
 
 Bhageernth .Moodee ?'. Rajah Jabur jumniah Khan, (1.S72) 18 
 
 \V. R. 91 ... ... ... ... ... 270 
 
 |-51lagrulh Doss r. .Mohasoop Roy, (l85fi) 6 W. R., .Act X, 34 ... 359, 361 
 Bhairabnath Khettri f. Kishori Mohan Shaw, (1869) 3 B. L. R. 
 
 App I ... ... ... ... ... 210 
 
 P.li.irut Chunder Sein r. Oseeuiootldi en. (1866) 6. VV, R., Act X, 56 ... 375 
 Hharuth Chunder Roy /'. Bepin Beharee Chuckerbutty, (1868) 9 
 
 W, R.495 ... ... ... ... ... 217
 
 lABLK OK CASES CITKl). HI 
 
 PAGE. 
 
 Bhiiam AH Shaik Shikdar v. Gopi Kanth Shaha, (1897) I. I.. R. 24 
 
 Cal. 355 ... _ ... ... ... ... 299 
 
 Bhoalee Singh ?'. Mussamut Neemoo Behoo, (1869) 12 \V. R. 498 ... 126 
 Bholanalh Band_vopadhya v. I^nachiirn Bandyapadh_va. (1SS6) 
 
 I. L. R. 14 Cai 440 ... ... ..." ... 78 
 
 Bhoobee Sincrh v. Miu-.samat Xehmoo Bohoo, (1S69) 12 W. R. 46 ... 126 
 
 Bhoobunjoy Achaijee v. Ram Xarain Chovvdhrj-, (1S6S) g W. R. 449 314 
 
 Bhoyrabnauth Sandyal v. Mutty Mundle, (1864) W. R., Act X, loo 176 
 Bhuban Mohun Moitro v. Girish Narain Moonshee, (1894) Sp. Ap. 
 
 405 of 1893 decided on the 28th March 1894 ... ... 152 
 
 Bhuggobuttee Debea 7\ Doorga Dass Roy, (1858) S. D. A. 890 ... 153 
 Bhuggobutty Churn Bhuitachaijee 7'. Tameeruddeen Moonshee, (1864) 
 
 i"W. R. 224 ... ... ... ... ... 370 
 
 Bhugwan Bhagat v. jug Mohun Roy, (1873) 20 W. R. 308 319,323.330 
 
 Bhugwan Chunder Dass v. Sudder Ally, (1878) I. L. R. 4 Cal. 41 ... 147 
 
 Bhuli Sing v. Mussamat Nimu Behu, (1869) 4 B. L. R. 29 ... 127 
 Bibee Suhodra v. Maxwell Smith. Mr. (1873) 20 W. R. 139 ... 298,299 
 Bidhumukhi Dabea Chowdhrain v. Kefyutullah, (1885^) I. L. R. 12 
 
 Cal. 93 ... ^ ... ... ... ... 239, 240 
 
 Bilasmoni Dasi v. Raja Sheopersad Singh, (1882) I. L. R. 8 Cal. 664, 
 
 sc, L. R. 9 I. A. 33, sc. II C. L. R. 215 ... ... ... 164 
 
 Binad Lai Pakrashi r. Kalu Pramanik, (1893) I. L. R. 20 Cal. 708 314, 346 
 
 Binode Beharee Roy v. Mr. C. B. Masseyk, (1871) 15 W. R. 493 ... 294 
 
 Binoderam Sein 7'. Mussamut Petumberee Dabee, (1858) S. D. A. 93 150 
 Binode Ram Sein v. The Deputy Commissioner of the Santhal Per- 
 
 gunnahs, (1866) 6 W. R. 129 ... ... ... ... 263 
 
 Bishnath Chowdhry 7'. Radha Churn Gangooly, (1873) 20 W. R. 
 
 465 ... ... ... ... ... ... 85 
 
 Bishumbhur Shah v. Durga Churn Bose and Ram Kunnye Shah, 
 
 (1858) S. D. A. 369 ... ... ... ... 155 
 
 Bissambhur Banerjee v. Koylash Chunder Bose, (1875) ~l ^^ • ^• 
 
 388 ... ... ^ ... ... ... ... 84 
 
 Bissesuri Dabeea v. Baroda Kanta Roy Chowdry, (1884) I. L. R. 
 
 10 Cal. 1076 ... ... ... ... ... 223 
 
 Bissonath Sircar v. Ranee Shurno Moyee, (1865) 4 \V. R. 6 ... 97 
 
 Bissonath Surma Bhuttacharjee v. M. Moran, (1864) W. R. 353 ... iii 
 
 Bliss Edward v. Collins James, (1822) 5 B. and A. 876 ... ... 225 
 
 Bogg V. Midland Railway Co., (1807) L. R. 4 Eq. ^10 ... ... 227 
 
 BoUye Satee v. Akram Ally, (1879) I. L. R. 4 Cal. 961 ..; ... 318 
 Brajanath Pal Chowdhry v. Hira Lai Pal, (1868) i B. L. R., A.C., 
 
 87, j-r,, 10 W. R. 120 ... ... ... 184,217 
 
 Brajonaih Kundu Chowdhry v. Lowther, (1872) 9 B. "L. R. 121 ... "315 
 
 Bramamayi Bevva, in re, (1870) 9 B.L.R. log (note) ... ... 315 
 
 Brindabun Chunder Sircar Chowdhrj' v. Bhoopal Chunder Biswas, 
 
 (1872) 17 W. R. 377 ... ... ... ... 242 
 
 Brindabun Chunder Sircar Chowdhr)' v. Brindabun Chunder Dey 
 
 Chowdhry, (1874) 21 W. R. 324, sc, 13 B. L. R. 409 sc, L. R. 
 
 I L A. 178 ... ... ... ... ... 144 
 
 Brindabun Chunder Nundi v. Ram Sunder Mozumdar, (1893) I. L. R. 
 
 21 Cal. 375 ... ... ... ... ... Ill 
 
 Brojendro Coomar Bhoomick v. Woopendra Xarain Singh, (1882) 
 
 L L. R. 8 Cal. 706 ... ... ... ... 366 
 
 Brojendro Kumar Roy Chowdhr}- v. Bungo Chunder Mundul, (1883) 
 
 12 C. L. R. 389 ... ... ... ... 181, 330 
 
 Brojo Kishore Sein v. Kassim AH, (1869) 11 W. R. 562 ... ... 370 
 
 Brojo Mohun Ghose r. Luchman Singh Thakoor, (1864) W. R. 83 ... 211 
 
 Brojonath Koondoo Chowdhry v. Stewart, A., (1871) 16 W. R. 216 364 
 Brojo Soondur Mitter t. Futick Chunder Roy, (1872) 17 \V. R. 
 
 407 ••• — ••• •" ••• 152. 155
 
 iv TABLE OF CASES CITED. 
 
 PAGE. 
 
 Brojo Soondur Miner Mojoomdar v. Kalee Kishore Chowdhry, (1867) 
 
 8 W. R. 496 ... ... ... ... 134, 136 
 
 Brooke r'. Bulkeley, 2. V. Jun. 49S ... ... ... 227 
 
 Budun MoUah 7: Khettur Nath Chatleijee, (1875) 24 W. R. 441 ... 241 
 
 Budurul Huq v. The Court of Wards, (1868) 10 W. R. 302 ... 126 
 Buhuns Koonwar t. Buhoree Lall, (1S72) 14 M. I. A. 496, sc, 10 
 
 B. L. R. 159, sc, 18 W. R. 157 ... ... ... Ill 
 
 Bujrungee Lai 7: Syud Velaet Hossein Khan, (^1866) 5 W. R. 186 ... 115 
 Bukronath Singh and The Government of India ?■. Xihnoni Singh, 
 
 (1878) I. L. R. 5 Cal. 389 ... ... ... ... 65 
 
 Buksh Ali 7: Ramtunoo Gnee, (1866) 6 W. R., Act X, 64 ... 180 
 BuUen, T. B. 7>. Lalit Jha, (1869) 3 B. L. R. A]>. 119 ... 2i6, 217 
 Bungo Chunder Chiickerbiitty t. Rain Kanye iihawal, (1868) loW. R. 
 
 256 ... ... ... ... ••• ••■ 177 
 
 Bunwaree Chand Thakoor 7: Mudden Mohun Chuttoraj, (1873) 21 
 
 W. R. 41 ... ... ... ... ••• 212 
 
 Bunwari Lai Chowdhry 7'. Burno Moyi Dasi, (1887) 1. L. R. 14 Cal. 749 205 
 Bunwari Lall Sahti 7'. Mahabir Persad Singh, (1873) 12 B. L. R. 297, 
 
 sc, L. R. I L A. 89 ... ... ... ... 108 
 
 Bunworee Lai 7'. Sungum Lai, (1867) 7 W. R. 280 ... ... 210 
 
 Busseerooddeen, Sheikh v. Shibpersad Chovvdry, (1864) W. R. 170 ... 78 
 Byjnath Sahoo v. Lalla Seetul Persad, (1868) 10 W. R., F.B., 66, sc, 
 
 2 B L. R., F. B., I. ... ... ... 105, 109 
 
 Bykunth Nath Dutt 7'. Monee Mohim Bose, (1850) S. D. A. 89 ... 151 
 Bykunt Nath Singh v. Maharajah Dheroi Mahtab Chund Bahadoor, 
 
 (1872) 17 W. R. 447, sc, 9 B. L. R. 87" ... 146. 147 
 
 Campbell v. Kishen Dhun Andhikaree, (1862) Marsh's Rep. 67 ... 375 
 Cannan H. H. ?-. Kylash Chunder Roy Chowdhry, (1876) 25 W. R. 
 
 117 ... ... ... ... ... 287,311 
 
 Catherine Foschola r. Hurro Chunder Bose, (1867) 8 W. R. 284 ... I77 
 
 Chamarnee Bibee 7'. Ayenoollah Sirdar, (1868) 9 W. R. 451 ... 177 
 
 Chandmoni Dasi 7: Lokenath Chatterjee, (1880) 6 C. L. R. 494 ... 296 
 Chatraput Singh r. Grindra Chunder Roy, (i88o') I. L. R. 6 Cal. 
 
 389 ... ^ ... ..• ■•. - - 223 
 
 Chaturi Sing 7: Mukund Lall, (1881) 1. L. R. 7 Cal. 710 ... 238 
 Chedambara Chetty ?■. Runga Krishna Muthu Vira Pnchaiya Naiker, 
 
 (1874) 22 W. R. 148,5c., 13 B. L. R. 509,^'^-, I- l'^- i I- A. 241 ... 216 
 
 Chowdhry Khan 7: Gour .[ana, (1865) 2 W. R., Act. X, 40 ... 363 
 
 Chunder Coomar Roy 7: Kadermonce Dossee, (1867) 7 W. R. 247 ... 299 
 Chunder Kant Chuckerbutty v. Bunko Beharee Chunder, (1865) 3 
 
 W. R. 177 ••• ••• ••• ••• ^ 77, 83 
 
 Chunder Kant Roy 7-. Krishna Simder Roy, (1884) I. L. R. 10 Cal. 
 
 710 ... ... ... ... - - 208 
 
 Chunder Narain Singh r-. Kishen Chand Golecha, (1883) L L. R. 9 
 
 Cal. 855 ^ ... ... ••. ••• .- 190 
 
 Chunder Nath Bhuttacharjee 7: Juggul Chunder Bhultacharjee, 
 
 (1S74) 22 W. R. 337 ••■ ••• ••• — 217 
 
 Chunder Nath Misser v. Sirdar Khan, (1872) 18 W. R. 218 ... 235 
 
 Chunder Nath Nundi v. Hur Narain Deb, (1881) L L. R. 7 Cal. 153 117 
 
 Chunder Nath Roy 7'. Bheem Sirdar, (1864) W. R., Act X, 37 ... 273 
 Cliunder Pershad Roy v. Shuvadra Kuniari Shaheba, (1886) L L. R. 
 
 12 Cal. 622 ... ■•■ ••. ■•• ••• '52 
 Chundra Kaminy Debea 7: Ram Ruttun Pattuck, (1885) I. L. R. 
 
 12 Cal. 302 ... ... ••• ■■• ••• '"
 
 TABLE OF CASES CITED. V 
 
 PAGE. 
 
 Church, Mr. C. v. Ram Tonoo Shaha, (1869) II W. R. 547 ... 316 
 
 Chytunno Chunder Roy v. Kedar Nath Roy, (1870) 14 W. R. 99 ... 333 
 
 Coatsworth v. Johnson, 55 L. J., Q. B., 220 ... ... ... 2IO 
 
 Collector of the 24-Perghs i;. Gungagobind Mundul, (1863) 2 Hayss..." ■ 83 
 
 Collector v. iMartindell, 2 N. W. P. Sel. Rep. 188 ... 64 
 
 Cornell, Mr. v. Oodoy Tara Chowdhrain, Musst, (1867) 8 W. R. 
 
 372 ... ... ... ... ... 107, 112 
 
 Cotesworth v. Spokes, (i86i) 30 L. J. C. P. 220 ... ... 234 
 
 D 
 
 Dabee Misser 7'. Mungiir Meah, (1878) 2 C. L. R. 208 ... ... 314 
 
 Dabee Miinnee Chowdhrain v. Faqueer Chunder Shaha, (1864) W. R. 
 
 293 ... ... ... ... ... 77, 78 
 
 Dabee Pershad v. Joy Lall Chowdhry, (1869) 12 W. R. 361 71, 77, 83 
 
 Dalglish, E v. Guzuffer Hassain, (1896) I. L. R. 23 Cal. 427 ... 300 
 
 Dann ?-. Spurrier, (1 803) 3 B. & P. 399 ••• ••• ... 227 
 
 David, Mr. M. A. v. Ram Dhun Chatterjee, (1866) 6 W. R., Act X, 
 
 97 ... ... ... ... ... ... 294 
 
 Debi Dutt Sahoo r. Subodra Bibee, (1876) I. L. R. 2 Cal. 283 ... 212 
 
 Debiruddi r. Abdur Rahim, (1888) I. L. R. 17 Cal. 196 231, 233, 341 
 
 Debi Singh v. Sheo Lall Singh, (1889) I. L. R. 16 Cal. 203 ... 117 
 
 De Courcy, Mr. Richard 7: Meghnath Jha, (1871) 15 W. R. 157 ... 293 
 Deen Dyal Lai 7'. Thukroo Koonwar, Mussamut, (1866) 6 W. R., 
 
 Act X, 24 ... ... ... ... 295, 365 
 
 Deputy Commissioner of Nowgong 7'. Nothiram Bhuaya, (1874) 2i 
 
 W. R. 435 ... ... - - - 55 
 
 Dewan Abdool Reza 7'. Jebunnissa Bibee, (1871) 16 W. R. 34 ... 117 
 
 Dewan Shumdan Ali 7: Mothooranath Dutt, (1870 14 W. R. 226 ... 85 
 Dhora Kairi v. Ram Jewan Kairi, (1890) L L. R. 20 Cal. loi 231, 233 
 
 Dhoroni Dhur San v. Wajidunnissa Khatoon, (1888) I. L. R. 16 
 
 Cal. 70S (note) ... ... ... ... 81,114 
 
 Dhunput Singh v. Boojah Sahoo, (1865) 4 W. R. 53 ... ... 78 
 
 Dhunput Singh, Baboo, v. Gooraan Singh, Baboo, (1 864) W. R. 
 
 Act X, 61^ ... ... ... ... 139,285,306 
 
 Dhunput Singh v. Mahomed Kazim Ispahain, (1896) L L. R. 24 Cal. 
 
 296 ... ... ... ... ... ... 218 
 
 Dhunput Singh v. Saraswati Misrain, (1891) L L. R. 19 Cal. 
 
 267 ..." ... ... ... ... 154, 217. 219 
 
 Dhun Singh Roy V. Chunder Kani Mookerjee, (1865)4 W. R., Act 
 
 X, 43 ... ... ... ... ... 176, 177 
 
 Dirgopal Lai v. Bolakee, (1879) L L. R. 5 Cal. 269 ... 190, 214 
 
 Dixon V. Baty, (1866) L. R. i Ex. 259, sc, 14 Wee. Rep. 836 ... 222 
 
 Doed. Muston v. Gladwin, 6 Q. B. 953 ... ... ... 235 
 
 Doed. Wilson V. Phillips, 2 Bing. 13 ... ... ... 230 
 
 Doma Roy »;. Melon, James, (1873) 20 W. R. 416 ... ... 232 
 
 Doolar Chand Sahoo w. Lalla Chabeel Chand, (1879) L. R. 6 L A. 
 
 47, 5r., 3 C. L. R. 561 ... ... ... ... ig8 
 
 Doorga Churn Chatterjee v. Doya Moyee Dossia. (1873) 20 W. R. 
 
 243 ... ... ... ... ... ... 178 
 
 Doorga Churn Doss v. Mahomed Abbas Bhooyan, (1870) 14 W. R. 
 
 399 ... ... ... ... ... ... 371 
 
 Doorga Churn Surma Chowdhry v. Syud Najunooddeen, (1874) 21 
 
 W. R. 397 ... ... ... ... ...148 
 
 Doorga Kant Lahoory v. Radha Mohun Gooho, (1867) 7 W. R. 51 ... 116
 
 Vi TABLE OF CASES CITED. 
 
 PAGE. 
 
 Doorga Kripa Roy v. Mohesh Chunder Roy, (1871) I5 W. R 242 ... I17 
 Doorga Kripa Roy v. Sree Janoo Lathak, C1872) 18 W. R. 465 ... 232 
 
 Doorga Persad Sin ^h v. Doorga Konw.iri, (;i87'^) I. L. R. 4 C.ii. iqo, 
 
 sc, L. R. 5 I. \. 149 ... ... ... ... 260 
 
 Dojr:ja Sinuh ». Siieo Pershad Singh, (188)) I. L. R. 16 Cal. 194 ... 112 
 Dosiiiai V. Ishwar Das Jagjivan Das, (1885) I. I.. R. 9 Rom. 561 ... 64 
 Douzelle, Mrs. Benjamin v. Girdharee Singh, (1874) 23 W. R. t2i 217, 220 
 Dowkit Gazee Chowdhry ». Moonshee Munwar, (1871) 15 W. R. 341 171 
 Doya Chand Shaha v. Anund Chunder Sen Moziimdar, (1887) I. L. R. 
 
 14 Cal. 382. ... ... ... ... 187, 225, 300 
 
 D, Silva, Mr. J. P. r. Raj Coomar Duu, (1871) 16 W. R. 153 ... 46 
 
 Dukhina Mohun Roy v. Fvureemoollah Mooktear, (1869) 12 W. R. 
 
 243 ... ... ... ... ... ... 174 
 
 Duli Chand v. Meher Chand Sahu, (1872) 12 B. L. R. 439, .re, 8 
 
 W. R. 138 ... ... ... ... 181,235,237 
 
 Duli Chand». Rajkissore, (1882) I. L. R. gCal. 88 ... ... 238 
 
 Dumree Shaikh v. Bissessur Lall, (1S70) 13 W. R. 291 ... ... 306 
 
 Durga Prosad Bundopadhya v. Brindabun Roy, (1892) I. L. R. 19 
 
 Cal. 504 ... ... ... ... ... 160 
 
 Durga Prosunno Ghose v. Kali Da? Dutt. (1881) 9 C. I.. R. 449 ... 306 
 Durga Sundari, Rani v. Brindaban Chundra Sirkar Chowdhry, (1869^ 
 
 2 B. L. R. App. 37, sc, IX W. R. 162 ... ... ... 299 
 
 Durp Narayan R lee v. Sreemuit R lee, (1849) S. D. A. 188 ... 280 
 
 Dvvarka Nath v. Aloke Chunder Seil, nS^3) [. L. R. 9 Cal. 641 ... 199 
 Dwarka Nath Chuckerbutty v. Bhowanee Kishore Chuckerbutly,(i867) 
 
 8 W. R. II ... ... ... ... •.. 371 
 
 Dwarkanath Misree v. Noboo Sirdar, (1870) 14 W. R. 193 317. 3i8 
 
 Dwarka Nath Misser v. Hurrish Chunder, (1S791 1. L. R. 4 Cal. 925, 
 
 sc, 4 C. L. R- 130 ... ... ... 299, 340 
 
 E. 
 
 Earl of Lisbiirne V. David Divies, (1866) 1.. R. i C. P. 3^9, ^'., 35 
 
 L. J. C. P. 193. ... ••. - - ■ - 221 
 
 Ebudutoillah, Siikh v. Maho ned Ali, Shiikh, (1876) 25 W. R. 114 ... 327 
 
 Edge V. Boileau, (1885) 1.. R. 16 (). B. 1). 117 ... ... 220 
 
 Elahee Buksh Chowdhry v. Roopun Telee, (1667) 7 W. R. 2^4 177. 291 
 Ellias, Mrs. B. O. v. Tithraram Roy, (1864) i W. R. 164 ... ^ 70, 83 
 
 Enayetoollah, .VIeah v. .Vubo Coomar Sircar, (1873) 20 W. R. 
 
 207 ... ... ... ... ... .•• 4^> 
 
 EnayuLooliah, Sheik v. r«.laheebuksh, Sheik, (1864) W. R., Act X, 
 
 42 ... ... ... ... ... 333, 365 
 
 Erfanoonnissa v. Pearee Mohun Mookerjee, (18761 25 \V. R. 209, sc, 
 
 I. L. R. I Cal. 378 ... ... ... 83,85 
 
 Erskine, Mr. H. S. v. Trilochu 1 Chatterjee, (iSfjS) 9 W. R. 518 ... 97 
 F.rskine, Mr. Jame=; v. Dwarkanath Singh and the (Government, (1867) 
 
 8 W. R. 232 ... ... ... ... ... 261 
 
 Evans w. Davis, (1878) L. R. 10 Ch. D. 747 ... ... ... 234 
 
 F. 
 
 Fakir Chand ». Fouzdar Misser, (1884) i. I.. K. 10 Cil. 547 ... 303 
 
 Fallon V. Robins, 16 J. Ch. R. 422 ... ... ... 227 
 
 Fanii.dra Deb Raikat «, Raje^war Das, (1885) i. I. R. II Cal. 463, 
 
 jc.,1.. R. 12 I. A, 72 ... ... ... ... 420
 
 TABLE OF CASES CITED. Vll 
 
 PAGE. 
 
 . .• 
 
 S2 
 
 ... 
 
 50 
 
 ... 
 
 227 
 
 24 
 
 
 ... 
 
 368 
 
 R 
 
 318 
 
 268 
 
 272 
 
 10 
 
 
 
 162 
 
 
 330 
 
 ... 
 
 84 
 
 15 
 
 
 ... 
 
 303 
 
 33,38 
 
 ... 
 
 180 
 
 151 
 
 157 
 
 R. 
 
 
 216 
 
 217 
 
 Farquharson, William v. Dwarka Nath Sing and the Government of 
 
 India, (1871) 8 B. L. R. 504 ... ... ... ... 261 
 
 Fatteh Bahadur v. Janki Bibi, {1870) 4 B. !.. R. App. 55, sc, 13 
 
 W. R. 74 
 F'azl V. Imliar, 4 N. W. P. 152 
 Finch V. Underwood, (1876) L. R. 2 Ch. D. 310 
 Finlay, Muir & Co., Messrs v. Gopee Kristo Gossamee, (1875) 24 
 
 W. R. 404 
 Fitzpatrick, Mr. \V. v. Wallace, Mr. George, (18G9) 11 W. R. 231 
 Forbes v. Meer Mahomed Taki, .1870. 13 M. I. .A. 438, sc, 14 W. R., 
 
 P. C, 28 
 Forbes, A. J. v. Ameeroonissa Begum. (1866) 5 'W. R. 47, sc, 
 
 M. I. A. 340 
 Forbes, A. J. v. Ram Lall Biswas, (1874) 22 W. R., P. C. 51 
 Forbes, A. J. v. Sheikh Mean Jan, (1S65) 3 W. R. 69. ... 
 Folick Chunder Uey Sircar v. Foley, E. G., (1887) I. L. R. 
 
 Cal. 492 
 Freeman v. Fairlie, (1828) i M. I. A. 305 
 Fry V. Lane, (1S88) 40 Ch. Uiv. 312 
 Fukeer r. Hills, 8 Sel. Rep. 153 ... 
 F'ukeeroonissa Begum v. Chunder Monee Dossce, (1869) 12 \V. 
 
 538 ... 
 
 G 
 
 Gangadhar v. Zahurriya, (1886) 1. L. R. 8 All. 446 ... ... 233 
 
 Ganoda Kama Roy v. Probhabati Dasi, (1893) I. L. R. 20 Cal. 881... 129 
 
 Gardiner v. Fell, (1819) I M. I. A. 299 ... ... 32 38 
 
 Gauri Sanker Lai, Lala v. Janki Pershad, (1889) L L. R. 17 Cal. 
 
 8o9,.u-., L. R. 17 L A. 57 ... ... ... 105,109 
 
 Ghoora Singh v. Otar Sing, (1865) 4 W. R., Act X, 15 ... ... 176 
 
 Gobind Chand Juttee v. Mun ^Iohun J ha, (1870) 14 W. R. 
 
 43 ... ••• ■•• ... ... ... 217 
 
 Gobind. Chunder Chunder v. Kristo Kanto Dutt, (1870) 14 W. R. 
 
 273 , ..- ■•• ••• ... ... ' ..." 217 
 
 Gobind Chunder Dutt v. Huronath Roy, (1866) 5 W. R., Act X, 10... 178 
 Gobind Chunder Gangopadh)a v. Sherajunnissa Bibi, (iS82) 1^ 
 
 C. L. R. i ... ... ... ... 105, 107, 109 
 
 Gobind Chunder R03' Chowdhry v. Ram Chunder Chowdhry, 11873) 
 
 19W. R. 94 ... ... ... ... _,_ 126 
 
 Gobind Lai Roy v. Biprodas Roy, (1889) L L. R. 17 Cal. 398 ... 107 
 
 Gobind Lai Roy v. Ramjanam Misser, (1893) 1. L. R. 21 Cal. 70,5c., 
 
 L. R. 20 I. A. 165. ... ... ... 103, 105,' 107, 109 
 
 Gobind Lall Seal v. Chand Hurry Maity, (1882) I. L. R. 9 Cal. 172 147 
 Godadh.-ir Dass v. Dhunput Sing, (1881) 1. L. R. 7 Cal. 385 ... 201; 
 
 Gogon Manjy v. Kashishwary Deby, (1877 1 I. L. R. 3 Cal. 498 ... 376 
 
 Gokaldas Gopaldas and Rambaksh Seochand v. Puranmal Prem- 
 
 sukhdas, (1884) L L. R. 10 Cal. 1035 ... ... 229, 230 
 
 Gokhul Sahu v. Jodu Nundun Roy, (1890) 1. L. R. 17 Gel. 721 ... ' 78 
 
 Golabolee v. KootosbooUah Sirkar, (1S78) I. L. R. 4 Cal. 527 ... iSi 
 
 Golak Nath Roy Chowdhry v. Mathura Nath Roy Chowdhry, (1891) 
 
 L L. R. 20 Cal. 273 ... ... ... ' __ 1,9, 
 
 Golam AH v. Baboo Gopal Lai Thakoor, (1868) 9 W. R. 65 294, 363, 
 
 Gohm Ali Chowdhry v. Kali Krishna Thakoor, (1881) 8 C. L. R. 517' ^66 
 Golam Ali Mundul v. Golap Soondery Dossee. (1882) i. L. R. 8 
 
 <":il- 612 ... ... ... ... ■.., 307 
 
 Golam Khejur v. Lrskine & Co., Messrs, (1869) 11 W. R. 445 ... 373
 
 viii TABLE OF CASES CITED. 
 
 PAGE. 
 
 Golam Mohamed v. A smut Alee Khan Chowdhiy, (1868) 10 W. R., 
 
 F. B., 14 ... ••• ■•• ■•• ••• 376 
 
 Golam Panja v. Huiish Chmider Ghose, (1872) 17 W. R. 552 ... 327 
 
 Goluck Rana v. Nubo Soonduree Dossee, (1874) 21 W. R. 344 ... 301 
 Goonomonee Dossee v. Rajah Bunodakant Roy Bahadoor, (1872) 
 
 18 W. R. 191 ... ... .•• ••■ ••• 85 
 
 Gooroo Doss Mundul v. Sheikh Durboree, (1866) 5 W. R., Act A, 
 
 86 ... ... ... ••• ••• . - ^77 
 
 Gooioo Dass Roy v. Collector of Furreedpore, The, (1873) 19 ^^ . R- 
 
 170 ... ... ... ... ■■ ■•• 128 
 
 Gooroo Dass Roy t;. Issur Chunder Bose, (1S74) 22 W. R. 246 ■;• 221,222 
 
 Gopal Chunder Bhose v. Muthoor Mohun Banerjee, 1 1865) 3 ^^ . R., 
 
 Act X, 132 ... ... ••• ••• ••; J77 
 
 Gopal Chunder Roy f. Oodhub Chunder Mullick, (1864) W. R. 156 72 
 Gopal Chunder Sircar v. Adhiraj Aftab Chund Mahatab, (1884) 
 
 I. L. R. 10 Cal. 743 ... ... ... _,•■ 82 
 
 Gopal Mundul v. Nobbokishen Mookerjee, (1866) 5 \\ . R.. 
 
 Act X, 83 ... ... ... .•■ •■• 179 
 
 Gopal Pal Chowdhry v. Tarinee Pershad Ghose, (186S) 9 W. R. 89 307 
 
 Gopanund J ha v. Lalla Gobind Pershad, (1869) 12 W. R. 109 217, 218 
 
 Gopee Mohun Roy v. Sibchunder Sen, (1864) i W. R. 68 ... 285 
 
 Gopeenath, Baboo v. Ramjeewun Lall, (1S59) S. D. A. 913 .-• 212 
 Gopendra Chunder Miller v. Mokaddam Hossein, (1894) 1. I.. R. 
 
 21 Cal. 702 ... ... ... ... ••■ 155 
 
 Gopi Nath Chobey v. Bhugwat Pershad, (1884) 1. L. R. 10 Cal. 697 126 
 Gordon Stuart and Co. v. Maharajah Mohatab Chunder Bahadoor, 
 
 (1863) Marsh 490, 56-., 2 Hay 565 ... ... •.• 204 
 
 Gossain Chutturbhooj Dut v. Ishri Mul, (1894) 1. L. R. 21 Cal. 
 
 844 ... ... ... ... 105, 109, 115 
 
 Gosto Behary Pyne v. Shib Nath Dutt, (1892) 1. L. R. 20 Cal. 241 ... 158 
 
 Gour Chunder Goopto v. Tara Konee, (1866) 6 W. R. 217 ... 114 
 Gour Huree Sing t;. Beharee Raoot, (1869)12 W. R. 277 , sc, 3 
 
 B. L. R. App. 133 ... ... ■•■ 319.323,330 
 
 Gour Kishore Chunder v. Honomalee Chowdhry, (1874) 22 W. R. 
 
 117 ... ... ... ... ... ••• 365 
 
 Gouree Komul Bhutiacharjee v. Rajkishen Nath, (iS()6) 5 W. R. 106 131 
 
 Gouree Nath Roy v. Ramguliy Chunder, (1869) 12 ^V. R. 102 ... 356 
 Gouree Pershad Doss v. Shurno Moyee, Ranee, (1866) 6 W. R., 
 
 Act X, 41 ... ... ... ... ..• 136 
 
 Gouri Pattra v. Reily, H. R., (1892) I. L. R. 20 Cal. 579 •■• 36? 
 
 Government, The v. Bhoop Narain Singh, (1865) 2 W. R. 162 ^ ... 126 
 Govind Chunder Goswami v. Rungunmoney, (1880) 1. L. R. 6 
 
 Cal. 60 ... ... ... ... ... if'O 
 
 Grant, G. v. Bangsi Deo, (1871 1 6 B. L. R. 652 ... ... 263 
 
 Great Western Railway Co. ». Smith, {1875) 2 Ch. D. 235 ... 242 
 Greesh Chunder Bose v. Kally Kristo Holdar, (1866) 6 W. R., 
 
 Act X, 58 ... ... ... ... 172 
 
 Grija Nath Roy v. Mia L'liaNasoya, I. L R. 22 Cal. 744, note. ... 302 
 
 Grimwood v. A. Moss, L. R. 7 C. P. 360 ... ... ... 234 
 
 Gujadhur Panree r. Naik Panree, (1882) 1. L. R. 8 Cal. 528 ... iSl 
 Gujraj Sahai v. Secretary uf Stale for India, (1889) I. L. R. 17 Cal. 
 
 414 ... ... ... ... ... 98, 105 
 
 Gulab Das Jugjivan Das «•. The Collector uf Sural, (1878) I. !.. R. 
 
 3 Bom. 186, 5c., L. R. 6 I. A. 54 ... ... ... 64 
 
 Gunesh Dass «. Gan Dour Koormi, ( 18S2) I. 1.. is/jCal. 147 ... 233 
 Gunga Gobind Mundul v. The Collector of 24-Pergannahs, Prince 
 
 Golam Mahomed and others, (1867) 7 W. R., P. C, 21,5c., 11 M. I. A. 345 3^ 
 
 Gunga Hurry Dhobey v. Trijip, Mr. H. D., (1864) i W. R. 31 ... 76
 
 88 
 
 TABLE OF CASES CITED. IX 
 
 Gunga Narain Doss v. Sharoda Mohun Roy, (1869) 12 W. R. 30 ... 355 
 Gun^a Narain Sircar v. Sreenath Banerjee, (1880) I. L. R. 5 Cal. 985 202 
 Gunga Ram Chowdhry v. Huree Nath Chowdhry, (1871) 5 W. R. 
 
 436 ... ... ... ••• ■•• -"TS, 84 
 
 Gur Buksh Roy. V. Jeo Lai Roy, (1888) I. L. R. 16 Cal. 127 ... I34 
 
 Giireeb Mundul v. Bhoobun Mohun Sein, (1865) 12 W. R. (Act X.) 185 34 
 Gyanada Kantho Roy Bahadur v. Bromomoyi Dassi, (1889) I. L. R. 
 
 17 Cal. 62 ... ... ... ... 44» 159 
 
 Gya Ram Dutt«. Gooroo Churn Chatterjee, (1865) 2 W. R. (Act X.) 
 
 59 ••• ... ••• ••• ••• *•• 
 
 H. 
 
 Hamilton v. Karl, i Bro. P. C. 341 ... ... ••• 211 
 
 Hanuman v. Ramjug, H. C. R., N. W. P. (1874) 371 ••• - 289 
 
 Haran Chunder Paul v. Mookta Soonduree, (1 868) 10 W. R. II3 ... 308 
 Haree Persad f. Asmut, Marsh Rep. 99 ... ... ... 375 
 
 Heera Lall Chowdhry v. Janokee Nath Mookerjee, (1871) 16 W. R. 
 
 222 ... — ~ .. ■•• ... ••• ^^^ 
 
 Heera LallPalv. Ned Monee Pal, (1873) 20 \V. R. 383... ... 307 
 
 Heeramonee and others v. Gunganarain Roy, (1868) 10 W. R. 384 ... 242 
 Heeranund Sahoo v. Mussamut Ozeerun, (1866) 6 W. R. 151 ... 126 
 
 Hemanta Kumari Debi v. Jagadindra Nath Roy Bahadur, (1894) 
 
 I. L. R. 22 Cal. 214 ... ... ... ... 334 
 
 Hem Chunder Chatterjee v. Poorun Chunder Roy, (1865) 3 VV. R. 162 177 
 Hem Chunder Ghose v. Radha Pershad Paleet, (1875) 23 W. R.440 240, 24I 
 Hem Nath Dutt v. Ashgur Sirdar, (1879) I. L. R. 4 Cal. 894 ... I37 
 
 Hera Lai v. Jerawan, 6 Sel. Rep. 169 ... ... ... 262 
 
 Herranund Shoo v. Mussamut Ozeerun, (1868) 9 W. R. 102 ... 126 
 
 Hills, Mr. James. «;. Besharuth Meer,(i864) W. R. 10 ... 178,292 
 
 Hills, Mr. James v. Huro Lai Sein, (1865) 3 W. R. 135 ... 178, 292 
 
 Hills, Mr. James v. Jendar Mundul, (1864^ i W. R. 3 ... ... 48 
 
 Hira Lai Das v. Mothura Mohun Roy Chowdhry, (1888) L L. R. 
 
 15 Cal. 714 ... ••• ... ... ... 333 
 
 Horo Kissen Banerjee v. Joy Kissen Mookerjee, (1864) i W. R. 299 ... 366 
 Hossain Bux v. Mutookdharee Lall, (1887) I. L. R. 14 Cal. 312 ... 129 
 
 Hossein Ally v. Donzelle, (1880) L L. R. 5 Cal, 906 ... ... 237 
 
 Hridoy Nath Shaha f. Mohobutnessa Bibee, (1892) L L. R. 20 Cal. 
 
 285 ... ... •.■ ••. ... ... 116 
 
 Hunooman Doss a/tas Nonnah Baboo v. Bipro Churn Roy, (1873) 
 
 20 \Y. R. 132 ... ... ... ... ... 147 
 
 Hunooman Persaud Panday v. Mussamut Babooee Munraj Koonweree, 
 
 11856)6 M. LA. 393 ••• ■■• ... ... 211 
 
 Hunt V. Cope, Cowp. 243 ... ... ... 217,220 
 
 Hureehur Mookerjee v. Biressur Banerjee, (i866) 6 W. R. (Act X.) 
 
 17 ... ... ... ... ... ... 310 
 
 Hureehur Mookerjee v. Jadoonath Ghose, (1867) 7 W. R. 114 299, 306 
 
 Huree Lall Dey Chowdhry v. Soorja Kanta Acherj Chowdhry, (1876) 
 
 25 W. R. 222 ... ... ... ... ... 159 
 
 Hur Gopal Doss, Baboo v. Ram Gopal Sahee, (1870) 13 W. R. 381 ... 105 
 Hurish Chunder Dam v. Gunga Dhur Bhuddro, (1876) 25 W. R. 
 
 181 ... ... ... ... ... 319, 330 
 
 Hurish Chunder Koondoo v. Mohinee Mohun Mitter, (1868)9 W. R. 
 
 582 ... ... ... ... ... ... 216 
 
 Hurmazi Begum v. Hirdoynarain, (1880) L L. R. 5 Cal. 921 ... 126 
 
 Huro Doss Raha ». Traheeram Paul, (1866) 6 W. R. (Act X.) 15 ... 42 
 Huronath Goopto v. Juggernath Roy Chowdhry, (1869) 11 W. R. 87 149
 
 X TABLE OF CASES CITED. 
 
 Huro Nath Roy v. Ameer Biswas, (1864) I W. R. 230 ... ... 291 
 
 Huro Nath Roy v. Bindoo Bashinee Debia, (1865) 3 W. R. (Act X.) 
 
 26 ... ... - •■• - ••• 134 
 
 Huro Pershad Chowdhry p. Shama Pershad Roy Chowdhry, (1866) 
 
 6 W. R. (Act X.) 107 ... ... •■■ ••• 46 
 
 Huro 'Soonduree Chowdhrain v. Anund Mohun Ghose Chowdhry, 
 
 (1867) 7 W. R. 459 ... ... ... ••• 136 
 
 Hurro- Doyal Roy Chowdhry v. Mahomed Gazi Chowdhry, (i8g I) 
 
 I. h. R. igCal. 699 ... ... ... ■•■ 148 
 
 Hurro Gobind Raha v. Ramrutno Dey, (18781 I. L. R. 4 Cal. 67 ... 273 
 Hurru'-Persad Malee v. Koonjo Behary Shaha, (1862) Marsh. 99. 
 
 Hurronath Roy v. Chittramoney Dossee, (1865) 3 W. R. (Act X.) 122 178 
 
 Hurronath Roy v. Gobind Chunder Dutt, (1875) 23 W. R. 352 133, 134. 178 
 Hurro Simderi Dossee v. Gopee Sunderi Dossee, (1882) lo C. L. R. 
 
 559 ... ... ... ... ... ••• 366 
 
 Hurryhur ». Abbas, I R. J. P. J. 23 ; 2 Sev. 875 ... ... 72 
 
 Hurr}4iur Mookhopadhya, Nobokisto Mookerjeeand Koylash Chunder 
 
 Bhirttacharjee v. Madhub Chunder Baboo, (1871) 20 W. R. 459 ; 
 
 8 B.-L. R. 566; 14 M. I. A. 152 ... ... ... 84 
 
 Hurry Kisto Roy v. Motee Lall Nundee, (1870) 14 W. R. 36 ... 147 
 Huruck Singh «;. Toolsee Ram Sahoo, (1868) II W. R. 84 ... 176,17 
 
 I. 
 
 Imambandi Begum v. Kamleswari Pershad, (1886) I. L. R. 14 Cal. 109 162 
 Imambandi Begum v. Kamleswari Pershad, (1894) I. L. R. 21 Cal. 
 
 1005 ... ■•• ••• ••• ••• ^^^ 
 
 Inder Pershad Singh v. Campbell, (1881) I. L. R. 7 Cal. 474 
 
 In re-Bramamayi Bewa, (1870) 9 B. L. R. 109 (note) ... 3I5 
 
 In re-Leslie, L. R. 23 Ch. D 552 ... ... ... ... 128 
 
 Inre-Manghan, L. R. I4Q- B. D. 958 ... ... ... 210 
 
 In re-Shrish Chunder Mookhopadhya, (1880) I. L. R. 6 Cal. 161 ... 213 
 
 In re-Sooria Kant Acharj Chowdry, (1876) I. L. R. I Cal. 383 ... 159 
 In re-Thakoor Chunder Paramanick, (1866) B. L. R. Sup. Vol. 595 35, 36 
 Ishan Chunder Chattopadhya v. Shama Churn Dutt, (1883) I. L. R. 
 
 10 Cal. 41. ••• ••• •■• ••• ••• 314 
 
 Ishan Chunder Roy v. Busaruddin, (1879) 5 C. L. R. 132 ... 372 
 
 Ishan Chunder Roy, In re (1881) I. L. R. 6 Cal. 707 ... ... 160 
 
 Ishen Chuuder Ghose v. Ilnrish Chunder Banerjee, (1872) 18 W. R. 19 314 
 Ishore Ghose v. Hills James, (1862) W. R. Sup. Vol. 48, 131, 148 48, 280 298 
 
 Issan w. Tareenee, Sev. 84 ... •■. ... ••• 157 
 
 Isteed «. Stoneby, I Anderson 82 ... ... ... ... 227 
 
 Jadab'Chunder Ilaldar v. Ktwaree Lushkur, (1863) Marsh 498 " ... 373 
 Jadub Chunder Holdar v. Etburry Lushkur, (1865) 3 W. R. (Act X) 
 
 160 ... ... ••• ••• , ••• ••• 360 
 
 JadulVRam Deb rt/w5 Jadub Chunder Deb v. Ram l.ochun Mudurk, 
 
 (l8f)6) 5 W. R. 56 ... ... ... ... ... Ill 
 
 Jadu Dass v. Sutherland, (1878) I. L. R. 4 Cal. 55() ... ... 202 
 
 Jagadamba Devi v. Prola]) Ghose, (1X87) I. L. R. 14 Cal. 537 ... 338 
 
 Jagjivundas Javerdas v. Inidad Ali, u88i) I. L. R. 6 Bom. 211 ... 272 
 JagufChunder l-Jtiy ti/ms Bashi Chunder Roy v. Rup Chand Chango, 
 
 (i'^.S2 I, !.. Is. 9 Cal. 48 ... ... ... 239,240 
 
 James Furlong, Mr. v. Khusroo Mundur, (1867) 7 W. R. 531 ... 78
 
 TABLE OF CASES CITED. XI 
 
 Jan Ali Chowdhry «. Nittyenund Bose, (i868) loW. R. F. B. 12 i8i, 237, 238 
 Janokee Bibee «■. Luchmun Pershad, (1872) 17 W. R. 137 ... 78 
 
 Janokee BuUub Chuckerbutty v. Nobin Chunder Roy Chowdhry, ' 1865) 
 
 2 W. R. (Act X.) 33 ••• ••• ■•• ••• 78 
 
 Janoo Mundur «. Brijo Singh, (1874) 22 W. R. 548 ••• 240,241 
 
 Jatee Ram Surmah v. Mungloo Surmah, (1867) 8 W. R. 60 ... 298 
 
 Jaun Ali «. Jan Ali, (iS68)9 W. R. 149 ., ... ... 355 
 
 Jawadul tiu ] v. Ram Das Saha, (18961 I. L. R. 24 Cal. 143 ... 313 
 Jeo Lai Singh v. Gunga Pershad, U884) I. L. R. 10 Cal. 996 192, 194 
 
 Jewun Doss Sahoo v. Shah Kubeerooddeen, (1840) 2 M. I. A. 390 ... 65 
 Jibanti Nath Khan and Hemandri Nath Khan v. Gokool Chunder 
 
 Chowdry, {1891) I. L. R. 19 Cal. 760 ... ... ... 156 
 
 Jogendranarain Roy, Rajah v. Hurry Doss Roy, (1864) W. R. 145 ... 73 
 
 Jogeshuri Chowdhrain v. iMahomed Ebrahim, (1886) I.L. R. 14 Cal. 33 234 
 
 Johur Ali, Shaikh v. Brindabun Chunder, (1870) 14 W. R. 10 ... m 
 
 Joora Gazee v. Aboo Khalifa, (1874) 21 W. R. 427 ... ... 156 
 
 Joykishen Mookerjee v. The Collector of East Burdwan, (1864) 
 
 W. R. P. C. 26 ; 10 M. I. A. 16 ... ... ... 254 
 
 Joy Kishen Mookerjee v. Doorganarain Nag, (1869) II W. R. 348 ... 300 
 
 Joy Kishen Mookerjee v. Jankeenath Mookerjee, (1872) 17 W. R. 470 159 
 
 Joy Kishen Mookerjee v. Raj Kishen Mookerjee, (1866) 5 W. R. 147 299 
 
 Joynath Roy v. Lall Bahadour Singh, (i88i> I. L. R. 8 Cal. 126 ... 126 
 
 Joykrishna Mukhopadhya v. Sarfannessa, (1888) I. L. R. 15 Cal. 345 152 
 
 Joymonee Debia v. Imam Buksh Talookdar, (1870) 13 W. R. 471 ... nj 
 Jubraj Roy v. W. Mackenzie, (1879) 5 C. L. R. 231 ... 239, 240 
 Judoonath Bhuttacharjee v. Nobokristo Mookerjee, (1865) 3 W. R. S. 
 
 C.C. Ref. 2. ... ... ... ... ... 158 
 
 Judoonath Ghose v. Schoene Kilburn & Co., (1883) I. L. R. 9 Cal. 671 242 
 
 Judoonath Shahana «;. Jadub Churn Thakoor, (1869) 9 W. R. 294 ... 203 
 
 Judoonath Sircar v. Bonomalee Mitter, (18651 2 W. R. 296 ... 77 
 Juggessur Buttobyal v. Rajah Roodra Narain Roy, (1869) 12 W. R. 
 
 299 ... ... ••• ■•• ••• ... 212 
 
 Juggobundhoo Shaha v. Promothonath Roy, (1879) I. L. R. 4 Cal. 7G7 31S 
 Juggut Chunder Dutt v. Mr. Panioty, (1866) 6 W. R. (Act X.) 48 ; 
 
 9 W. R. 379 ... .■• ••• ... ... 367 
 
 Juggut Mohinee Dossee v. Dwarkanath Bysack, (1882) I. L. R. 8 Cal. 
 
 582 ... ... ... .•■ ^ .-• ... 35 
 
 Jugmohun Doss v. Poorno Chrnder Roy, (1865) 3 W. R. (Act X.) 133 177 
 Jugul Kissore Lai Sing Deo v. Kartic Chunder Chottopadh3-a, (1892) 
 
 L L. R. 21 Cal. 116 ••• ••• ... 190,214 
 
 Jugunnath Gossain «. Mr. J. G. N. Pogose, (1865) 4 W. R. 43 ... 73 
 
 Jugut Chunder Roy a. Eshan Chunder Banerjee, (1875) 24 W. R. 220 299,301 
 Jumant Ali Shah, v. Chutturdharee Sahee Chowdhry, (1871) 16 W. R. 
 
 185- ... ... ... •■• ••• ... 333 
 
 Jumeer Gazee r. Goneye Mundul, (1869) 12 W. R. no ... ,,, 306 
 
 Junmajoy Mullick v. Dwarkanath Mj-tee, (1879) L L. R. 5 Cal. 287 45 
 
 Jutto Moar v. Mussamut Basmuttee Kooer, (1871) 15 W. R. 479 289, 310 
 
 K. 
 
 Kabeel Shaha V. Radha Kissen Moulick, (1871) 16 W. R. 146 ... 328 
 
 Kabil Sardar v. Chunder Nath Nag Chowdhry, (1892) L L. R. 20 
 
 Cal. 590 ... ... ... ... 231, 299, 341 
 
 Kadir Gazee, v. Mohadebee Dossia, (1866) 6 W. R. (Act Xj 48 ... 180 
 Kadumbenee Dabee v. Nobeen Chunder Adukh, (1865) 
 
 2 W. R. 157 ... ... ... ... 223, 301 
 
 Kadumbinee Dossia v. Kasheenath Biswas, (1870) 13 W. R., 10,338 217, 220 
 Kalee Churn Dutt v. Shoshee Dossee, (1864) i W. R. 248 96, 261
 
 Xii TABLE OF CASES CITED. 
 
 Kalee Churn Singh v. Ameeroodden,(i868) 9 W. R. 579 285, 306 
 
 Kalee Doss Nundee v. Ramguttee Dutt Sein, (1866) 6 W. R. 
 
 (Act X) 10 ... ... ••• ••• ••• 371 
 
 Kalee Kishen Biswas v. Sreemutty Jankee, {1867) 8 W. R. 250 315. 3i7 
 
 Kalee Kishore Chatterjee v. Ram Churn Shah, (1868) 9 
 
 W. R. 344 ... ••• ••• ••• 285, 308, 340 
 
 Kalee Krishna Deb v. Shashonee Dassee, (1875) 25 W. R. 42 ... 314 
 
 Kalee Mohun Chailerjee v. Kalee Kisio Roy, (i86g) 21 W. R., 183 ... 316 
 Kalee Mohun Sen «. Ram Soonder Sen, (1875) 24 W. R., 243 . ... 117 
 
 Kalee Pershad w. Shah Lutafut Hossein, (1869) 12 W. R., 418 ... 312 
 
 Kali Kishen Tagore v. Golam Ali, (1886) I. L. R., 13 Cal. 3 232, 239, 240 
 Kali Krishna Tagore v. Fuzle Ali Chowdhry, (1883) I. L. R., 9 
 
 Cal. 843 ... ••• - - •;• 234 
 
 Kali Nath Chakrabarti v. Kumar Upendra Chandra Chowdry, (1896) 
 
 I C. W. N., 163; I. L. R., 24Cal. 212 ... ... ... 34^ 
 
 KaliPershud V. Anand Roy, (1887) I. L. R., 15 Cal. 471 .•• 270 
 
 Kallee Chunder Chowdhry «. Ruttun Gopal Bhadooree, (1869) li 
 
 W. R., 571 ... ••• •■• ••• 178,355,356 
 
 Kally Persaud Sing v. Hoolas Chund, (1873) 10 B. L. R., 448 ... 30 
 
 Kanto Prashad Hazari v. Jagat Chandra Dutt, (1895) I. L. R., 23 
 
 Cal. 335 ... ... •■• ••• — 45 
 
 Karim Chowkidar v. Sundar Bewa, (1896) I. L. R., 24 Cal. 207 ... 3-14 
 
 Karoo Lai Thakoor v. Luchmeeput Doogur, (1867) 7 W. R. 15 285, 300, 306 
 Kasheenath Lushkur v. Bamasoonduree Debia, (1868) 10 
 
 W. R., 429 ... ... ... ••• ■•• 292 
 
 Kashee Nath Roy Chowdhry ». Mynuddeen Chowdhry, (1864) i 
 
 W. R., 454 ... ... ... ••• ••• 335 
 
 Kashee Singh v. Ouraet, Messrs P. and T. Grant, (1866) 5 W. R. 
 
 (Act X) 81 ... ... ... ... - 307 
 
 Kashikant Bhuttacharji v. Rohinikant Bhuttacharji, (1880) I. L. R., 
 
 6 Cal. 325 ••• ••• - ••• ••• 334 
 
 Kasinath Koowar v. Bankubehari Chowdhry, (1869) 3 B. L. R., 446... 102 
 Kashee Chundur Raee, Huree Chundur Raee and Radhanauth 
 Raee v. Noor Chundra Dibeea Chowdrain and Bhoobun Mayee 
 Dibeea Chowdrain, S. D. A., (1849) 113 ... ... ... "3 
 
 Kasumunnissa Bibee v. Nilratna Bose, (1881) I. L. R., 8 Cal. 79 ... 19° 
 Kattyani Debea v. Soonduree Debea, {1865) 2 W. R. (Act X) 60 177, 291 
 Kazee Abdool Mannah v. Buroda Kant Banarjee, (1871 15 W. R., 394 214 
 Kazee Khoda Newaz v. Nubo Kishore Raj, (1866) 5 W. R., 
 
 (Act X) 53 ... ... ... ••■ 177,178,292 
 
 Kearnes, Mr. D. H. v. Bhowanee Churn Mitter, (1864) W. R. Sp. 
 
 Vol. 168 ... ... .. ... ■•• 191 
 
 Kedarnath Chuckerbutty v. Mrs. Benjamin Donzelle, (1873) 20 
 
 W. R., 352 ... ... ... ••• 337 
 
 Kedar Nath Mookerjee v. Unnoda Debia, (1864) i W. R., 25 ... 83 
 
 Kedar Nath Nag v. Khetturpaul Sritirutno, (1880) I. L. R., 6 Cal. 34 233 
 Kenaram Mullick v. Ramcoomar Mookerjee, (1865) 2 W. R., 
 
 (Act X) 17 ... ... ... ... 178, 292 
 
 Ketal Gain v. Nadur Mistree, (1866) 6 W. R., 168 ... ... 308 
 
 Keval Kuber v. Talukdari Settlement Officer, (1877) 1. I.. K., i 
 
 Bom. 586 ... ... ... ... ••• 272 
 
 Khelat Chunder Ghose v. Poorno Chunder Roy, (1865) 2 W. R., 258 78 
 Khellut Chunder Ghose v. The Collector of Bhaugulpore, (1864) 
 
 W. R. 73 ... ... ... ... 50 
 
 Khenia Soondarec Dossia v. Nund Koomar Goopto, (1S65) 4 W. R., 75 III 
 Khettur Paul Singh v. I.uckhee Narain Mitter, (1871) 15 W. R., 125 153 
 Khorshed Ali v. Maboo Dhoondhoree Singh, 11873) 20 W. R., 457 ... 85 
 Khoshal Mahomed v. Joynooddeen, (1869) 12 W. R., 451 ... 3o6 
 
 Khugendronath Mullick v. Kantee Ram Paul, (1870) 14 W. R., 368 ... 372 
 Khujoorunissa Begum v. Ahmed Reza, (1869) 11 W. R., 88 286, 307
 
 TABLE OF CASES CITED. Xlll 
 
 222 
 
 Kingsmill v. Millard, ii Exch. 313 ... ... 221, ___ 
 
 Kinu Ram Das v. xMozaffer Hosain Shaha, (1887) I. L. R., 14 Cal.809 128 
 Kirt Chunder Roy v. The Government and Moheenny Mohun Tha- 
 
 koor, (1867) 5 W. R., P. C. 41 ... ... ... 100 
 
 Kishen Mohun Ghose v. Eshan Chunder Mitler, (1865) 4 W. R. 
 
 (Act X) 36 ... ... ... ... ••• 175 
 
 Kokil Singh v. Duli Chund, (1879) 5 C. L. R. 243 ... 190, 214 
 
 Komolakant Dossz;. J. G. N. Pogose, (1865) 2 W, R. (Act X) 65 ... 366 
 Kooldeep Narain Singh v. Government of India, (1873) II B. L. R., 
 
 71 ; 14 M. I. A. 247 ... ... ... ... 269 
 
 Koolodeep Narain Singh, Baboo v. Mohadeo Sing, (1866) 6 W. R. 
 
 199 ... ... ... ... ... 266, 272 
 
 Koylash Chunder Dutt v. Jubur Ali, (1874) 22 W. R. 29... ... 162 
 
 Koylash Bashiny Dossee v. Gocoolmoni Dossee, (1881) I. L. R. 8 Cal, 
 
 230; 10 C. L. R. 41 ... ... ... 70. 77, 79 
 
 Kripamoyi Dabia v. Durga Govind Sirkar, vi887) I. L. R. 15 
 
 Cal. 89... ... ... ... 187,225,299,300,340 
 
 Kripa Nath Chakee v. Dyal Chand Pal, (1874) 22 W. R. 169 ... 299 
 
 Krishna Gobind Dhur v. Hari Churn Dhur,(i882) I. L. R. 9 Cal. 367 223 
 Krishno Chunder Goopto v. Meer Sufdur Ali, (1874) 22 W. R. 326 ... 138 
 Krishto Mohun Doss Bukshee v. Joy Kishen Mookerjee, (1865) 3 
 
 W. R. 33 ... ... ... ••• ••• 78 
 
 Kristendra Roy Chowdhry v. Hena Bewa, (1882) 10 C. L. R. 399 ... 303 
 Kristo BuUav Ghose v. Kristo Lai Singh, (1889) I. L. R. 16 Cal. 642 144 
 Kristo Chunder Ghose v. Raj Kristo Bandyopadhya, (1885) I. L. R. 
 
 12 Cal. 24 ... ... ... ... ••• 191 
 
 Kristo Chunder Goopto V. Elahee Buksh, (1873) 20 W, R. 459 ... 134 
 
 Kristo Chunder Sandel Chowdhry v. Shama Soonduree Debia, (1874) 
 
 22 W. R. 520 ... ... ... ... •■. 126 
 
 Kristo Jeebun Bukshee v. Mr. A. B., Mackintosh, (1864) W. R. 53 ... 160 
 Kristo Mohun Pattur v. Huree Sunkur Mookerjee, (1867) 7 VV. R. 
 
 - 235 ... ••• ... ••. ••• 365 
 
 Kristo Mohinee Dossee v. Kaliprosono Ghose, (1881) I. L. R. 8 Cal. 
 
 402 ... ••• ... ••• ••• 128 
 
 Krishto Motee Debia, Ranee v. Ram Nidhee Sircar, (1868) 9 W. R. 
 
 331 ... ... ... .- ... 371 
 
 Kristo Soondur Sandyal v. Koomar Chunder Nath Roy, (1871) 15 
 
 W. R. 230 ... ... .-. ••• 217, 220, 295 
 
 Kumla Sahoy v. Ram Rattan Neogy, (1869) 11 VV. R. 201 ... 181 
 
 Kunda Misser v. Gunesh Singh, (1871) 15 W. R. 193 ... ... I77 
 
 Kustoora Koomaree v. Benoderam Sein, (1865) 4 W. R. Misc. 5 ... 263 
 
 Laidley v. Gour Gobind Sarkar, (1885) I. L. R. il Cal. 501 287, 311 
 
 Lakshmi v. Chendri, (1884) I. L. R. 8 Mad. 72 ... ... 273 
 
 Lai Bahadoor Singh v. Solano, (1883) L L. R. 10 Cal. 45 ; 12 C. L. R. 
 
 559 ... ... ... ... •.. 313, 314, 329 
 
 Lai Mahomed v. Kallanus, (1885) L L. R. 11 Cal. 519 ... ... 337 
 
 Lai Sahoo v. Deo Narain Singh, (1878) L L. R. 3 Cal. 781 ; 2 C. L. 
 
 R. 294 ... ... .•• ••• 298,301 
 
 Lala Mobaruck Lai v. The Secretary of State for India, (1885) L L. 
 
 R. II Cal. 200 ... ... ... ... 109, iio 
 
 Lalit Mohun Roy v. Binodai Dabee, (1886) I. L. R. 14 Cal. 14 ... 303 
 Lalit Mohun Shaha v. Srinibas Sen, (1886) I. L. R. 13 Cal. 331 153, 20I 
 Lalla Bunseedhur v. Koonwur Bindeseree Dutt Singh, (i 866) 10 M. I. 
 
 A. 454 ... ... •.. ••• '•• 2^2
 
 XIV TABLE OF CASES CITED. 
 
 Lallii Ishur Dun v. Bhuka Chowdhry, (1872) 17 W. R. 242 ... 313 
 
 Lauder, Mr. v. Benode Lai Ghose, (1866) 6 W. R. (Act X) 37 178, 180 
 
 Ledlie, J. W. v. iSreemutty ji^Doorga Monee Dossee, (1874) 21 W, R. 
 
 410 ... ... ... ... ... ... 46 
 
 Lilanand Singh v. Munorunjun Sing, (1874) 13 B. L. R., 124; L. R. 
 
 L A. Sup. Vol. 181 ... ... ... 186, 269, 272 
 
 Lloyd V. Jones, 15 M. & W. 580... ... ... ... 222 
 
 Lodai Mollah V. Kally Dass Roy, (1881) L L. R. 8 Cal. 238 ... 337 
 
 Lokhee Narain Roy Chowdhry v. Kal3rpuddo Bandopadhya and 
 
 Shamapuddo Bandopadhya, L. R. 2 L A. 154 ... ... iii 
 
 Loll Soonder Doss v. Hurr}' Kishen Doss, (1862) i Marsh, I13 ... 213 
 
 Lootfulhuck V. Gopee Chunder Mojoomdar, (1880) L L. R. 5 Cal. 
 
 941 ... ... ... ... ... ... 202 
 
 Lopez V. Muddun xMohun Thakoor, (1870) 14 W. R. P. C. 11 ; 5 B. 
 
 L. R. 521 ; 13 M. L A. 469 ... ... ... ... 50 
 
 Luchmee Narain Shaha v. Koochil Kant Roy, (1866) 6 W. R. 46 ... 175 
 Luckhinarain Mitter v. Khettro Pal Singh Roy, (1873) 20 W. R. 380, 
 
 13 B. L. R., 146 ... ... ... 153, 160, 190, 201 
 
 Lukhee Kant Doss Chowdhry v. Sumeerooddi Tustar, (1874) 21 W. 
 
 R. 20S ... ... ... ... ... 209 
 
 Luleeta Kooer, Musst. v. The Collector of Tirhoot, (1873) 19 W. 
 
 R. 283 ... ... ... ... ... 107 
 
 Lutteefunnissa Bebee v. Baboo Poolin Beharee Sein, (1863) W. R. 
 
 Sup. Vol. 91 ... ... ... ... 178, 292, 329 
 
 M. 
 
 MacDonald, L. N. v. Lalla Shib Dyal Singh Panrey, (1873) 21 W. 
 
 R. 17 ... ... ... ... ... 211 
 
 Madhub Chunder Adit Chowdhry v. Ram Kalee Beeparee, (1 87 1) 
 
 16W. R. 151 ... ... ... ... ... 238 
 
 Madhub Chunder Chowdhr}' v. Rajah Promotho Nath Roy Bahadoor, 
 
 (1873) 20 VV. R, 264 ... ... ... ... 162 
 
 Magaram Ojha v. Rajah Nilmonee Singh Dev, (1871.) 21 W. R. 326, 
 
 13 B. L. R. 198 ... ... ... ... ... 156 
 
 Maharajah Mahashur Singh Bahadoor v. Baboo Horruck Narain 
 
 Singh, (1862) 9 M. LA. 268 ... ... ... 107 
 
 Maharajah Dheraj Muhtab Chand Bahadoor v. Chittro Coomaree 
 
 Bibec, (1871) 16 W. R. 201 ... ... ... ... 295 
 
 Maharaja Dheeraj Raja Muhtab Chand Bahadoor v. The Government 
 
 of Bengal, (1850) 4 M. L A., 466 ... ... ... 70 
 
 Maharajah Dheraj Muhtab Chund Bahadoor v. Radha Binode Chow- 
 dhry, (1867) 8 W. R. 517 ... ... ... ... 97 
 
 Maharajah of Burdwan v. Tara Sundari Debi, (1882) L L. R. 9 Cal. 
 
 619 ; L. R., 10 L A. 19 ... ... ... 147,148 
 
 Maharani «;. ]3enee, 4 S. D. A. 79... ... ... ... 415 
 
 Maharanee Shibessouree Debia ». Mothooranath Acharjo, (1869) 13 
 
 M. L A. 270 ... ... ... ... ... 212 
 
 Mahomed Abbas Mandul v. Brojo Sundari Debia, (1891) L L. R. 18 
 
 Cal. 360 ... ... ... ... ... 144 
 
 Mahomed Abdul ILii v. Gujraj Sahai, (1893) I. L. R. 20 Cal. 826 98, 105 
 Mahomed Akil v. Asadunnissa IScbee, ^1867) B. L. R. Sup., Vol. 774 ; 
 
 9W. R. I ... ... ... ... 77, 172 
 
 Mahomed Aktur v. Mr. G. M. Reily, (.1875) 24 \V. R. 447 ... 83 
 
 Mahomed Ameer v. Peryag Singh, (1881) 1. L. R. 7 Cal. 566 iSl, 236, 237 
 Mahomed Askur 7>. Mahomed Wasuck, (1874) 22 W. R. 413 ... 83 
 
 Mahomed Azhar V. Raj Chuiidcr Roy, (,1893) I. L. R. 21 Cal. 354 ... 107 
 .Mahomed Gazee Chowdhry v. Laul Beebee, (1868) 10 W. R. 103 ... 76
 
 TABLE OF CASES CITED. XV 
 
 Mahomed Gazi v. J. G. Leicester, (1871) 7 B. L. R. 52 ... ... in 
 
 Mahomed Gazee Chowdhry v. Pearee Mohun Mookerjee, (1871) 16 
 
 W. R. 136 ... ... ". -.• Ill, 162 
 
 Mahomed Gazee Chowdhry v. Noor Mahomed, (1875) 24 W. R. 324 292, 329 
 Mahomed Rasid Khan Chowdhry v. Jadoo Mirdha, (1873) 20 
 
 W. R. 401 ... ... ■•. ••• ••• 239 
 
 Mahmooda Bebee, Mussamut v. Hureedhun Khuleefa, (1866) 5 W. R. 
 
 (Act X) 12 ... ... ... ••• ... 177 
 
 Maqbul Ahmed Chowdhry v. Girish Chunder Kundu, (1892) I. L. R. 
 
 22 Cal. 634 ... ... ••. ... ... 81 
 
 Makhiin Lai Roy and others v. Ban Behari Kupur, (1892) Sp. Ap. No. 
 
 306 of 1891, decided on the 19th Aug. 1892 ... ... 158 
 
 Maseyk, E. «. Bhagabati Barmanya, (1890) L L. R. 18 Cal. 121 ... 314 
 Matungee Churn Mitter v. Moorrary Mohun Ghose, (1875) I- L. R. 
 
 I Cal. 175 ... ... ... ... ... 150 
 
 Mc Intosh, G. B. v. Jharu Molla, (1894) 1. L. R. 22 Cal. 454 ... 114 
 
 Mears v. Perrott, 4 C. & P. 230 ... ... ... ... 222 
 
 Meerza v. Nawal 4 Sel. Rep. 168 ... .■• ... ... 208 
 
 Meherban Rawoot v. Behari Lai Barik ti/ias Sham Lai Katri, (1896) 
 
 I. L. R. 23 Cal. 679 ... ... ... 115, "7 
 
 Mellor V. Watkins, L. R. 9 Q. B. 400 ... ... ... 242 
 
 Mirza Mahomed Nasseer v. Kishen Mohun Goyee, (1863) W. R. F. B. 
 
 92 ; 2 Hay 356 ... ... ... ... ... 151 
 
 Miterjeet Singh v. Toondun Singh, (1869) 12 W. R. 14 ; 3 B. L. R. 
 
 App. 84 ' ... ... ... ... 177,289 
 
 Mobaruck Ali v. Ameer Ali, (1873) 21 W. R. 252 ... ... 153 
 
 Mobaruk Lai, Lala v. The Secretary of State for India in Council, 
 
 (1885) L L. R, II Cal. 200 ... ... ... 107,109,110 
 
 Modhoo Soodun Koondoo v. Ramdhun Gangolee, (1869) 12 W, R. 
 
 383; 3B. L. R. 431 ••• ••• - ••• 155 
 
 Mohabeer Pershad Singh v. The Collector of Tirhoot, (1870) 13 
 
 W. R. 423 ... ... ... ... ... 105 
 
 Mohabeer Pershad Singh v. The Collector of Tirhoot, (1871) 15 
 
 W. R. 137 ... ... ... ... 107, 108 
 
 Mohadeay Kooer v. Haruk Narain, (1882) I. L. R. 9 Cal. 244 ; 11 
 
 C. L. R. 540 ... ... ... ... ... 116 
 
 Mohamaya Goopta 7: Nilmadhab Rai, (1885) 1. L. R. 11 Cal. 533 ... 241 
 Moharanee Inderjeet Koonwur v. Chokew Sahoo, (1863) W. R. Sp. 
 
 Vol. 81 ... ... ... ... ... 76 
 
 Mohesh Chunder Duttw. Gunga Money Dossee, (1863) 2 Hay, 495 295, 365 
 Mohesh Chunder Gangopadhya v. Bisho Nath Doss, (1875) 24 
 
 W. R. 402 ... ... ... ... 316,317 
 
 Maharajah Mahatap Chand Bahadoor v. The Bengal Coal Co., 
 
 (1868) 10 W. R. 391 ... ... ... ... 204 
 
 Maharajah Nilmoney Sing Deo v. Sheo Tewary, (1864) W. R. 
 
 324 ... ... ... ... ... ... 273 
 
 Mohima Chunder Dey V. Gooroo Doss Sein, (1867) 7 W. R. 285 ... 136 
 Mohima Chunder Sein 7: Pitambur Shaha, (1S68) 9'W. R. 147 ... 307 
 Mohima Chunder Shaha v. Hazari Pramanik, (1889) I. L. R. 17 
 
 Cal. 45... ... ... ... ... ... 346 
 
 Mohsun Ali V. Nuzum Ali, (1S66) 6 W. R. 15 ... ... 115 
 
 Mohun Loll Tagore v. The Collector of Zillah Tirhoot, (1864) i 
 
 W. R. 356 ... ... ... ... ... 109 
 
 Mohur Ali Khan Pathan ». Ram Ruttun Sen, (1874) 21 W. R.400 314, 316 
 Mokoondy Lall Doobey v. L. G. Crowdy, (1872) 17 W. R. 274 ... 243 
 Monindra Nath Mookerji v. Saraswati Dasi, (1890) L L. R. 18 
 
 Cal. 125 ... ... ... ... ... 98 
 
 Moolook Chand Mundul v. xModhoosoodun Bachusputty, (1871) 16 
 
 W. R. 126 ... ... ... ... ... 372 
 
 Mookta Keshee Dossia r. Pearee Chowdhrain, (1867) 7 W. R. 158 ... 191
 
 XVi TABLE OF CASES CITED. 
 
 Mooroobbee Sahoo v. Latoo Koomar a/ias Dyebuttee Koomar, (1863) 
 
 W. R. F. B. 70 ... ... ... ... ... 77 
 
 Moran, Messrs W. v. Anund Chunder Mojoomdar, (1866) 6 W. R. 
 
 (Act X) 35 - - - - 177, 179 
 
 Morland v. Cook, (1S68) L. R. 6 Eq. 22, 252 ; 37 L. J. Ch. 825 ... 226 
 Morrison v. Chadwick, 7 C. B. 266 ... ... ... 218 
 
 Moss V. Barton, (1866) 35 Beav. 197 ; L. R. I Eq. 474 ... ... 227 
 
 Mothoor Mohun Pal Chowdhry v. Ram Lai Bose, (1878) 4 
 
 C. L. R. 469 ••• ... ••• — 181,236,237 
 
 Moihooranalh Sircar V. Nil Monee Deo, (1870) 13 W. R. 297 ... 356 
 
 *Mr. D. M. Gilmore t. Sreemunt Bhoomick, (1864) W. R. 77 ... 222 
 
 Mr. Peter NichoU v. Tarinee Churn Bose, (1875) 23 W. R. 298 ... 223 
 Mr James Tweedie v. Poorno Chunder Gangolee, (1869) 12 
 
 W. R. 138 ... ... ... ... ... 356 
 
 Muddomutty Guptee v. Bamasoondery Dossee, (1874) 14 B. L. R. 21 211 
 Muddun Mohun v. Kartick Nath Panday, (1870) 14 W. R. 335 ... 117 
 Muddun Mohun Biswas v. William Stalkart, (1872) 17 W. R. 441 ... 316 
 Mukhtar Bahadur v. Brojoraj Chowdhrv, (1881) 9 C. L. R. 143 ... 327 
 Mumtoz Bibee v. Grish Chunder Chowdhry, (1874) 22 W. R. 376 181, 237 
 Munee Dutt Singh v. Mr. William Campbell, (1869) ii W. R. 278 ... 216 
 Muneekurnicka Chowdhrain v. Anund Moyee Chowdhrain, (1867) 
 
 8 W. R. 6 ... ... ... ... ... 176 
 
 Mungazee Chaprassee v. Sreemutty Shibo Soonduree, (1874) 21 
 
 W. R. 369 ... ... ... ■•• •.. H7 
 
 Mugno Moyee Debia 7'. Huro Chunder Rawut, (1866) 6 W. R. 
 
 (Act X) 27 ... ... ... ... ... 176 
 
 Munjina Khatook v. The Collector of Jessore, (1869) 12 W. R. 311 ; 
 
 3 B. L. R. App. 144 ... ... ... 105, 109 
 
 Mun Mohun Ghose v. Husrut Sirdar, (1865) 2 W. R. 39... ... 176 
 
 Munrunjun Singh v. Rajah Eelanund Singh, (1865) 3 W. R. 84 ... 266 
 MunshiKhadim t. Forlong, 3 R. J. P. J., 327 .•• •.• 209 
 
 Munsoor Ali v. Bunoo Singh, (1867) 7 W. R. 282 ... 177, 291 
 
 Munsoor Ali «. Mr. R. Harvey, (1869-) II W. R. 291 ... ... 365 
 
 Musharaf Ali v. Iftkhar Husain, (1888) I. L. R. 10 All. 634 .•• 233 
 
 Mussamut Balakee Komaree v. Luckheemonee Dassee, S. D. A. (1850) 
 
 349 ... ... ... ... ... 155 
 
 Mussamut Beebee Chummun 7/. Mussamut Om Koolsoom, (1870) 
 
 13W. R. 465 ... ... ••• ... ... 126 
 
 Mussamut Bebee Khoobun v. Wooma Churn Singh, (1878) 3 
 
 C. L. R. 453 ••• ••• ••• ••• ••• "7 
 
 Mussamut Bunnoo v. Moulvie Ameeroodden, (1874) 23 W. R. 24 ... 84 
 Mussamut Hoymobutty Dossee v. Sreekishen Nundee, (1870") 14 
 
 W. R. $8 ••• •■• •■■ ••■ ••• -^7 
 
 Mussamut Ozeerun r. Baboo TTeeranund Salioo, (1S67) 7 W. R. 336... 126 
 Mussamat Tara Soonduree v. Radha Soondur Roy, (1S75) 24 W.R. 63 151 
 MusyatuUa, v. Noorzahan, (1883) I. I.. R. 9 Cal. 808; 12 
 
 C L. R. ^89 ... ... ... ... 231, 303, 330 
 
 Mutty Lall Sen ». Deshkar Roy, (1867) 9 W. R. I ... ... 82 
 
 N. 
 
 Nafar Chandra Pal Chowdhuri r. Ram Lai Pal, (1S94) I. L. R. 22 
 
 Cal 742 ... ... ... ... ••• 3°2 
 
 Nanack Chand v. Tcluckdye Koer, (1879) L L. R. 5 Cal. 26s ... IQO 
 
 Narain Roy r. Opnit Misser, (1882) I. L. R. 9 Cal. 304 ; li C. L. R. 
 
 417 ... ... ... ... ... 330, 331 
 
 Narain Singh V. Munsur Raool, (1876) 25 W. R. 155 ... ... 327
 
 TABLE OF CASES CITED. XVll 
 
 I'AGE. 
 
 Narayan Dasappa v. Ali Saiba, (1893) I. L. R. 18 Bom. 603 ... 183 
 
 Narayana Sanabhaga v. Naniyana Nayak, (1883) \. L. R. 6 Mad. 327 231 
 Narendra Narain Rai v. Bishnu Chundra Das, (1885) I. L. R. 12 
 
 Cal. 182 ... ... ... ... 83, 86 
 
 Naro Damodar Ghugri v. Collector of Poena, (1882) I. L. R. 6 Bom., 
 
 209 ... " ... ... ... ... ... 272 
 
 Neale v. Mackenzie, (1837) I Keen 474 ... ... ... 220 
 
 Nemai Charan Dhabal v. Kokil Bag, (1880) I. L. R. 6 Cal. 534 ... 208 
 Newaj Bundopadhya v. Kali Prosonno Ghose, (1880) I. L. R. 6 Cal. 
 
 543 - - ••• •■• ••• 83,85 
 
 Newton v. AUin, i Q. B. 517 ... ... ... ... 220 
 
 Neynum, Mussamut v. Miizuffur Wahid, (1869) 11 W. R. 265 ... 112 
 
 Nidhee Krislo Bose tJ. Nistarinee Dossee, (1874) 21 W. R. 386; 
 
 13 B. L. R. 416 ... ... ... ... ... 174 
 
 Nidhi Krishna Bose v. Ram Doss Sen, (1873) 20 W. R. 341 ... 318 
 
 Nil Komul Sein v. Danesh Shaikh, (187 1) 15 W. R. 469 ... 308 
 
 Nil Madhab Sikdar v. Narattam Sikdar, (1890) I. L. R. 17 Cal 826... 183 
 Nil Monee Singh Deo Bahadoor w. Anunt Ram Patnaik, (1871) 15 
 
 W. R. 393 ... ... ... ... ... 177 
 
 Nil Monee Singh Deo Bahadoor, Rajah v. Chunder Kant Banerjee, 
 
 (1870) 14 W. R. 251 ... ... ... ... 135 
 
 Nilmoney Singh Bahadoor, Rajah v. Ram Chuckerbutty, (1874) 
 
 21 W. R. 439 ... ... ... ... 135, 136 
 
 Nilmoney Singh Deo, Rajah f. The Government and Beer Sing, (1872) 
 
 18W. R. 321 ... ... ... ... ... 64 
 
 Nilmoni Singh Deo v. Bakranath Singh and The Secretary of State 
 
 for India'in Council (1882) I. L. R. 9 Cal. 187 ; L. R. 9 
 
 I. A. 104 ... ... ... ... ... 64 
 
 Nilmony Dassy v. Sonatun Doshayi, (1887) I. L. R. 15 Cal. 17 ... 330 
 
 Nim Chand Barooah v. Mooraree Mundul, (1867) 8 W. R. 127 ... 329 
 
 Nobeen Kishen Mookerjee v. Shib Pershad Pattuck, (1867) 
 
 8 W. R. 96 ... ... ... ... ... 191 
 
 Nobin Chunder Roy 7'. Rup Lall Das, (1882) I. L. R. 9 Cal. 377 ; 
 
 II C. L. R. 499, II M. I. A. 452 ... ... 127, 128 
 
 Nobo Gopal Sircar V. Srinath Bundopadhya, (1882) 1. 1.. R. 8 Cal. 877 ; 
 
 II C. L. R. 37 ... ... ... ... 153,201 
 
 Nobokanth Dey v. Rajah Barodakanth Roy Bahadoor, (1864) i W. R, 
 
 100... ... ... ... ... ... 335 
 
 Nobokishen Bose v. Mazamooddeen x\hmed Chowdhry, (1873) 19 W. 
 
 R. 338 ... ... ... ... ... 136 
 
 Nobokristo Mukherji v. The Secretary of State for India in Council, 
 
 (1885) I. L. R. II Cal. 632 ... ... ... ...■ 257 
 
 Nobokristo Mookerjee V. Koylash Chunder Bhuttacharjee, (1871) 20 
 
 W. R. 459; 8 B. L. R. 566; 14 M. I. A. 152 ... ...83,85 
 
 Nobo Lai Ivhan v. Maharanee Adhuranee Narain Koonwaree, (1866) 
 
 5 W. R. 191 ... ... ... ... 77, 78 
 
 Noor Ali Chowdhuri v. Koni Meah, (1886) I. L. R. 13 Cal. 13 ... 238 
 
 Noor Mahomed Mundul v. Hurriprosonno Roy, (1864) W. R. (Act X) 75 302 
 Nownit Lai v. Radha Kristo Bhuttacharjee, (1895) L L. R. 22 Cal. 
 
 738_ ... ... ... ... ... ... 108 
 
 Nubokishen Mookerjee v. Kaleepersad Roy, S. D. A. (1859) 607 ... 212 
 Nubo Tarinee Dossee ?'. Gray, Mr. J. J., (1869) iiW. R. 7 ... 172 
 
 Nuddyar Chand Shaha v. Meajan, (1884) L L. R. 10 Cal. 820 
 
 221, 222, 294, 295 
 Nuffer Chunder Paul Chowdhry v. Jonathan Poulson, (1873) 
 
 19 W. R. 175 ... ... ... ... 136, 178 
 
 Nugender Chunder Ghose v. Sreemutty Kaminee Dossee, (1 867) 8 W. 
 
 R. (P. C.) 17; II M. LA. 241 ... ... loi, 127 
 
 3
 
 XVlll TABLE OF CASES CITED. 
 
 FACE. 
 Nurid Duntpat v. Tara Chund Pritheebaree, (1865) 2 W. R. (Act X) 
 
 13 ••■ ••• ••• .'•• .•• ... 70 
 
 Nundun Lai, Babu ?-. Smith, Mr. J. S., (1867) 7 W. R. 188 ... 371 
 Nurendro Narain Roy v. Ishan Chunder Sen, (1874) 22 W. R. 22 ; 13 
 
 B. L. R. 274 ... ... ... ... 299, 340 
 
 Nyamutoollah v. Gobind Chunder Dutt, (1S65) 4 W. R. (Act X) 25 ... 177 
 NyamutooUah Ostagur v. Gobind Churn Dutt, (i856) 6 W. R. 
 
 (Act X) 40 ... ... ... ... ... 301 
 
 0. 
 
 Obhoya Charan Bhooia v. Koilash Chunder Dey, (1887) 1. L. R. 14 
 
 CaL 751 ... ... ... ... 217, 220 
 
 Obhoy Chunder Sirdar v. Radha BuUubh Sen, (1878) I C. L. R. 549 364 
 
 Obhoy Churn Mohapittur v. Kan3'e Rawut, (1878) i C. L. R. 394 ... 319 
 Obhoy Gobind Chowdhry v. Hury Churn Chowdhry, (1882) I. L. R. 
 
 8 Cal 277 ... ... ... ... ... 202 
 
 Oddoyto Chunder Koondoo v. Prosunno Coomar Bhuttacharjee, (18651 
 
 2 W. R. 325 ... ... ... ... ... 212 
 
 Okhoy Ram Janah v. Syud Mahomed Hossein, 11864) W. R. 212 ... 72 
 Omesh Chunder Roy v. Dukhina Soondry DelDea, (1863) W. R. Sp. 
 
 Vol. 95... ... ... ... ... 70, 80 
 
 Oodoy Singh v. Paluck Singh, (1871) 16 W. R. 271 ... ... I17 
 
 Ooma Nath Roy Chowdhry v. Roghoonath Mitter, (1862) W. R. Sp. 
 
 Vol. 10; I Hay 75 ; Marsh 43 ... ... ... 155 
 
 Oomanund Roy v. Sreekant Chowdhry, 1,1873) 21 W. R. 108 ... 48 
 
 P. and O. S. N. Co., v. Konnoy Lall Dutt, (1864) 2 Hyde 217 ... 216 
 
 Palakdhari Rai v. Manners, (1895) [. L. R. 23 Cal. 179 ••• 299, 300 
 Pandit Sheo Prakash Misser v. Ram Sahoy Sing, (1871) 
 
 8 B. L. R. 165 ... ... ... ... ... 315 
 
 Panioty. Mr. E. O. v. Juggut Chunder Dutt, (1S68) 9 W. R. 379 ... 133 
 
 Parbutty Bewah v. VVoomatara Dabee, (1874) 14 B. L. R. 201 ... 36 
 
 Parker 7^ Taswell, 27 L. J. Ch. 812 ... ... ... 210 
 
 Parker v. Webb, 3 Salk 5 ... ... ... ... 226 
 
 Pearee Komul Debea v. Meer Dad Alee S. D. A. (1857) 13 10 ... 156 
 Pearee Mohun Dutt v. Radha Madhub Mookerjee, (1868) 
 
 10 W. R. 427 ... ... ... ... ... 177 
 
 Pearee Mohun Mookerjee v. Brojo Mohun Bose, (1873) 21 W. R. 36 333 
 
 Pearee Mohun Mookerjee 7'. Brojo Mohun Bose, (18741 22 W. R. 428 333 
 Pearee Mohun Mookerjee v. Koylas Chunder Byragee, (1874) 
 
 23 W. R. 58 ... ... ... ... ... 176 
 
 Pearee Mohun Mookerjee v. Raj Kristo Mookerjee, (1873) 20 W. R. 
 
 385 ... ... ... ... ... ... 372 
 
 Peer Bux, Sheikh w. Meahjan, Sheikh, (1864) W. R. Sp. Vol.146 314 
 Peezeerooddeen v. Modhusoodun Paul Chowdhry, (1865) 2 W. R. 
 
 (I'. B.)i5 ... ... ... ... ... 77 
 
 Pelaram Kotal v. Nund Coomar ChutLoram, (1866) 6 \V. R. (Act X) 
 
 45 ... ... ... ... ... ... 355 
 
 Periag v. Madhu, A. O. D. Nos. 84 and 97 of 1887 decided 25th June 
 
 1889 ... ... ... ... ... ... 415 
 
 Peter Nicholl, Mr. 7A Tarinee Churn Bose, (1875) 23 W. R. 298 ••• 3°! 
 
 Pitriinl'ur Panda V. Damoodur Dass, Baboo, (1875) 24 W. R. 129 ... 148
 
 TABLE OF CASES CITED. x'lX 
 
 PAGE. 
 Pitchakutti Chetti v. Kamala Nayakkan, (1863) i Mad. H. C. 153 ... 215 
 Piziruddin v. Madhusudan Pal Chowdhry, J^l865) B.L.R. Sup. \'ol. 75 172 
 Pogose, W. G. N. V. Rajoo Dhopee, (1874) 22 W. R. 511 316, 317 
 
 Poolin Beharee Sein v. Neemaye Chand, (1867) 7 W. R. 472 ... 177 
 
 Poolin Beharee Sein v. Watson & Co., Messrs. R. (1868) 9 W. R. 190 363 
 Pran Bundhoo Sirdar v. Surbo Soonduree Debia, (1868) 10 W. R. 
 
 434 ... ... ... ... ... ... 171 
 
 Pran Kissen Bagcheee ?'. Monmohinee Dassee, (1871) 17 W. R. 34 ... 293 
 Pran Nath Shaha w. Modhu Khulu, (1886) I. L. R. 13 Cal 96 ... 231 
 
 Premsookh Race v. Kishoon Govind Biswas, S. D. A. (1849) 18 ... 153 
 Premanund Ghose v. Shoorendra Nath Roy, (1873) 20 W. R. 329 317, 318 
 Prem Chand Nuskur v. Mokshoda Debi, (1S87) I. L. R. 14 Cal. 201... 202 
 Prem Sahoo v. Shaikh Nyarnui Ali, (1866) 6 W. R. (Act X) 90 ... 177 
 Priag Lall v. Brockman, Mr. J. G., (1870; 13 W. R. 346 ... ... 355 
 
 Profullah Chunder Bose v. Samiruddin Mondul, (1894) I. L. R. 22 
 
 Cal. 337 ... ... ... ... ... 193, 336 
 
 Prosunno Coomar Chatterjee v. Jagun Nath Bysack, (1881) 10 C.L.R. 
 
 25 ... ... ... ... ... ... 301 
 
 Prosunno Coomaree Debea v. Sheikh Rutton Bepary (1877) I. L. R. 
 
 3 Cal. 696 ... ... ... ... ... 239 
 
 Prosunnomoyee Debia v. Chunder Nath Chowdhry (1868) 10 W.R 361 • 
 
 2 BL. R(S. N.) 5 ... ... ... ... '373 
 
 Prosunomoyee Dossee v. Soondur Coomaree Debia, (1865) 2 W. R. 
 
 (Act X) 30 ... ... ... ... ... 295,366 
 
 Pureejan Khatoon v. B3'kunt Chunder Chuckerbuttj', (1867) 7 W. R. 
 
 96 . ... ... ... ... ... 371 
 
 Purmanund Sein v. Puddomonee Dossia, (1868) 9 W. R. 349 ; Marsh 
 
 379 ... ••• -. ^ ... ••• ... 356 
 
 Puroma Soonduree Dossee v. Prollad Chunder Dass, (1869) 12 W. R. 
 
 289 ... ... ... ... ... ... 209 
 
 Putheeram Chowdhry ». Kuthe Narain Chowdhry, (1864) i W. R. 
 
 124 ... ... ... ... ... ... 50 
 
 Q. 
 
 Queen Empress v. Ramji Sojaborao, (1885) I. L. R. 10 Bom. 
 
 124 ... ... ... ... ... ... 55 
 
 Queen Empress v. The Grand Junction Railway Co. 4 Q. B. 18 ... 280 
 
 R. 
 
 Radha ». Juggut, 4 S. D. A. 151 ... ... ... 212 
 
 Radha Gobind Koer v. Rakhal Das Mukherji, (1885) I. L. R. 12 Cal. 
 
 82 ... ... ... ... ... 239, 240, 292, 312 
 
 Radha Gobind Roy v. Kyamutoollah, Talookdar, (1874) 21 W. R. 
 
 401 ••• ... •■• ... ... 179, 291 
 
 Radha Kisto Singh, Rajah v. Radha Munghi, (1863) 2 Sev. 366 ... 70 
 
 Radha Moye Dey Chowdhry v. Aghore Nath Biswas (1876) 25 W. R. 
 
 384 •■. ... ... ... ... 177, 178 
 
 Radha Nath Chowdhry v. Joy Soonder Moitra, (1878) 2 C. L. R. 302 216 
 Radha Nath Sircar v. Binodee Paul, ( 1865) 3 W. R. (Act X) 151 ... 177 
 Radha Pershad Misser r. Monohur Das (1880) I. L. R. 6 Cal. 317 ..[ 213 
 Radha Pershad Singh v. Budha Dashad, (1895) I. L. R. 22 Cal'. 
 
 938 ... ... ... ... ... 272, 273 
 
 Radheeka Chowdrain v. Rammohun Ghose, (1864) i \V. R. 367 ... 133
 
 XX TABLE OF CASES CITED. 
 
 PAGE. 
 
 Radhika Chowdmin v. Bamasundari Dasi, (1869) 4 B. L. R. (P. C.) 8 1 3 3, 134 
 Radhika Prosunno Chunder v. Urjoon Majhee, (1S73) 20 W. R. 128 335 
 Raghiib Chunder Banerjee v. Brojo Nath Kooml >^ Chowdhiy, (1870) 
 
 14 W. R. 489 ... ... ... ... ... 147,160 
 
 Rai Komul Dossee v. Laidley, J. W. (iSji^) I. L. R. 4 Cal. 
 
 957 ... ^ ... ... 222,287,311 
 
 Raj Chunder Roy v. Kishen Chunder a/ias Kinoo Lahoree, (1865) 
 
 4W. R. (Act X) 16 ... .. ... ... 371 
 
 Raj Chundra Chuckerbutty v. Kinoo Khan, (18S2J I. I.. R. 
 
 8 Cal. 329 ... ... ... ... ^ ... 109 
 
 Raj Coomar Roy Koonwur v. Ay?a Beebee, (1865) 3 W. R. 
 
 (Act X) 170 ... ... ... ... ••• 177 
 
 Raj Kishore Mookerjee v. Hureehur Alookerjee, (1868) 10 \V. R. 117 292 
 Raj Kisto Singh v. Gocool Chunder Bose, S. D. A. (1857) 920 ... 153 
 Rajmohun MiUer 7: Gooroo Churn Aych, (1866) 6 W. R. (Act X) 106 294 
 Raj Narain .Mitra v. Ananta Lai Mondul, (1892) I. L. R. 19 
 
 Cal. 703 ... ... ... ... 146, 148, 152 
 
 Raj Narain Roy Chowdry v. Mrs. Olivia Atkins, (1864) i W. R. 45 177 
 Raj Narain Roy v. Woomesh Chunder Goopto, (1867) 8 W. R. 444... 156 
 Raja Lelanund Singh Bahadoor v. The Government of Bengal, 
 
 (1855) 6 M. I. A.'ioi ... ... ... 247,249,264 
 
 Raja Lilanund Singh, v. Munorunjun Singh, (1S74) 13 B. I,.R. 124 ; 
 
 L. R. I. A. Sup'. Vol. 181 ... ... ... 186, 269, 272 
 
 Raja Nilmani Singh, v. Madhab Singh, (1868) i B. L. R., (A. C.) 
 
 195 ... ... ... ... ... 259, 263 
 
 Raja Sahib Prahlad Sen v. Baboo Budhu Sing, (1S69) 2 B. L. R. Ill 162 
 Rajah Barodakant Roy v. Sookmoy Mookerjee, US64J i W. R. 29 ... 78 
 Rajah Binodacant Roy v. The Commissioner of the Soonderbunds, 
 
 (1869) II W. R. (P.C.) 14 ; 2 B. L. R. (P.C.) 33 ; 12 M. I. A. 225 53 
 Rajah Deedar Hossein v. Ranee Zuhoor-oon Nissa, (1841) 2 M. I. A. 
 
 441 ... ... ... ... ... ... 112 
 
 Rajah Neelanund Singh v. Stirwan Singh, (1866) 5 W, R. 292 ... 266 
 
 Rajah Nilmonee Singh v. Bukronath Singh, (i868) 10 W. R. 255 ... 259 
 Rajah Nilmoonee Singh Deo v. Kashee Mahioon, (1876) 25 
 
 W. R. 206 ... ... ... ... ... 274 
 
 Rajah Nilmoney Singh Bahadoor v. Ram Chuckcrbuttv, (1874) 
 
 21 VV. R. 439 ... ... ... ... ' ... 135 
 
 Rajah Protap Chunder Singh ». Bissen Chunder Roy, S. D. A. (1859) 
 
 1216 ... ... ... ... ... 159 
 
 Rajah Ramessur Nath Singh v. Golamee Sahoo, (1875) 24 ^V. R. 309 274 
 Rajkishen Roy v. Dhone Beebee, (1862) I Hay 421 ... ... 72 
 
 Rajkishen Singh, Rajah, v. Ramjoy Surma Mozoomdar, (1872) 
 
 19 W. R. 8 ... ... ... ... ... 89 
 
 Rajendro Kishore Narain Singh, Maharajali v. Doorga Koonwar, 
 
 .Mussamut, (1867) 7 W. R. 154 "... ... ... II4 
 
 Rajcndronaih .Monkho])adhya v. Bassider Ruhman Khondkhar, (i87()) 
 
 [. !,. R. 2 Cal. 146 ... ... ... ... 240 
 
 Rajessuree Dehia v. Shibnath Chatterjee, (1865) 4 \V. R. (Act X) 42 139 
 Rakha! Chandra Rai Chowdhuri v. The Secretary of Slate for India 
 
 in Council, (18S6) I. L. R. 12 Cal. 603 ... ... ... 98 
 
 Rakhal Das Addy v. Dinomoyi Dehi, (iSSg) I. I.. R. 16 Cal. 652 ... 316 
 Rakhal Doss Bose v. Sheikh (l^iam Surwiir, (1865) 2 W. R. 
 
 (Art X) 69 ... ... ... .^ ... 178 
 
 Rakhal Doss Mookerjee »'. Tunoo Puramanick, O.S67) 7 W. R. 239... 37° 
 f^akhal Doss Tewaree v. Kinooram Holdar, (1867) 7 VV. R. 242 176, 177 
 Ram Baian Ram v. .Salig Ram Singh, (1880) I. L. R. 2 All. 896 ... 225 
 Ram linksh Chullangea ». liridoy Monee Debia, (i8fi8) lo W. R. 
 
 446 ... ... ... ... ... ... 171 
 
 Ram Bushan Mahto v. Jebli Mahto, (1882; I. 1.. R. 8 Cal. 853 ... II4
 
 TABLE or CASES CITED. XXI 
 
 PAGE. 
 
 Ram Chand Bera ». Government, The, (1879) 6 C. L. R. 365 ... 48 
 
 Ramchunder DuU v. Jugheschimder Dutt, (1873) 12 B. L. R. (P. C.) 
 
 229 ; 19 W. R. 353 ... ... ... ... 176 
 
 Ram Chunder Roy v. Bholanath Lushkur, (1874) 22 W. R. 200 ... 299 
 Ram Chunder Sao v. Bunseedhur Xaik, (1883) I. L. R. 9 Cal. 741 45, 46 
 Ram Chunder Shaha ». Collector of Mymensingh, (1874) 22 W. R. 
 
 48; Sev. 704 ... ... ... ... ... 76 
 
 Ram Chunder Singh v. Raja Joher Jumma Khan, (1875) 14 B. L. R. 
 
 App. 7 ... ... ... ... .•• ... 270 
 
 Ram Chunder Singh Ghatwal v. Rajah Mamomed Jowhuruzuma 
 
 Khan, (1874) 23 W. R. 376 ... ... ... ... 270 
 
 Ram Chung v. Gora Chand Chung, (1S75) 24 W. R. 344 ... 307 
 
 Ram Churn Bundopadh3^a v. Sreemutty Dropo Moj-ee Dossee, (1872) 
 
 17 W. R. 122 ... ... ... ... ... 160 
 
 Ram Churn Sing v. Dhaturi Sing, (1890) I. L. R. 18 Cal. 146 ^ ... 43 
 Ram Coomar Dhara v. Bhoyrub Chunder Mookerjee, (1866) 6 W. R. 
 
 (Act X) 33 ... ... ... ... ... 356 
 
 Ram Dayal Sing v. Latchmi Naraj'an, Baboo, (1870) 6 B. L. R. App. 
 
 25 ; 14 W. R. 388... ... ... ... ... 289 
 
 Ram Debul Lall v. Mitterjeet Singh, (1872) 17 W. R. 420 ... 211 
 
 Ramdhun Khan v. Haradun Puramanick, (1S69) 12 W. R. 404 308, 315 
 
 Ram Gobind Roy v. Syud KushuiTudoza, ^1871) 15 W. R. 141 ... 105 
 
 Ramjan .\\\v. .Amjad Ali, (1893) I. L. R. 20 Cal. 903 ... ... 217 
 
 Ramjoy Ghose v. Ram Runjun Chuckerbutty, (1881) 8 C. L. R. 367 ... 115' 
 Ram' Khelawun Singh v. Mussamut Soondra, (1867) 7 W. R. 152 ... 23S 
 Ram Kishore Mundul v. Chand Mundul, (1866) 5 W. R. (Act X) 84 177 
 Ram Kishwur Ghose v. Kishen Mohun Choudree, S. D. A., (1845) 155 157 
 Ram Kristo Dass v. Sheikh Harain, (1882) I. L. R. 9 Cal. 517 81, 336 
 
 Ram Lai Patak v. Dina X'ath Patak, (1895) I. L. R. 23 Cal. 200 ... 241 
 Ram Lochun Sircar v. Deenonath Paul. (1865) 2 W. R. 279 72, 83 
 
 Ram Logan Ojha v. Bhawani Ojha, (18S6) L L. R. 14 Cal. 9 ... 98 
 
 Ram Mohun Banerjee t). Radha Xath Pundah, S. D. A. (1850) 320... 149 
 Ram Mungul Ghose v. Lukhee Xarian Shaha, (1864) i W. R. 71 285, 306 
 Ram X^arain Chuckerbutty v. Poolin Behary Lall Singh, (1878) 
 
 2 C. L. R. 5. ... ... ... ... ... 366 
 
 Ram Narain Doss v. Tweedie, Mr. James, (1869) 12 W. R. 161 ... 160 
 
 Ram Narain Koer v. Mahabir Pershad Singh, (1886) L L. R. 
 
 13 Cal. 208 ... ... ... 107, 108, 109 
 
 Ram Xarain Lall «. Gumbeer Singh, (1873) 19 W. R. 108 ... 217 
 
 Ram Narain Singh Deo Bahadoor v. Bistoo Thakoor, (1871) 15 W. R. 
 
 299 ... ... ••• ... ... 83 
 
 Ram Xidhee Manjee v. Parbutty Dassee, (1880) L L. R. 5 Cal. 823... 366 
 Ram Ranjan Chakerbati v. Ram Xarain Singh, (1894) L L. R. 22 
 
 Cal. 533 ; L. R. 22 L A. 60 ... ... ... ... 174 
 
 Ram Rotton Mundul v. Xetro Kally Dassee. (1878) L L. R. 4 Cal. 
 
 339 ••■ ••• ••• ••• ••• 239, 240, 241 
 
 Ram Runginee Dossee V. Gooroo Doss Ro}', (1874) 22 W. R. 212 ... 128 
 Ram Rutno Sircar v. Chunder Mookhee Dabea, (1865) 2 W. R. (.\ct 
 
 X) 74 ... ... .. ... ... 177, 29T 
 
 Ram Sabuk Bose p. Mon Mohoni Dossee, (1874) L. R. 2 1. .A. 71; 
 
 23W. R. 113; 14 B. L. R. 394 ••• ••• I47, i4« 
 
 Ram Sarun Sahoo v. Veryag Mahton, (1876) 25 W. R. 554 85, 223, 313 
 
 Ram Shunker Raee v. Prem Sook Raee, S. D. A. (1S49) 473 ... 153 
 
 Ranee Doorga Soonduree Dossee v. Bibee Omdadoonissa, (1872) 
 
 17W. R. 151 ... ... ... ... ... 316 
 
 Ranee Shama Soonduree Debia f>. Kooer Puresh Narain Roy, (1873) 
 
 20 W. R. 182 ... ... ... ... ... 117 
 
 Ranee Shoorut Soondry Dabea v. Binny, Mr. Charles, and others 
 
 (1876) 25 W. R. 347 ... ... ... , .,. 222
 
 Xxii TABLE OF CASES CITED. 
 
 PAGE. 
 
 Ranee Shurno Moyeef. Blumhardt, Reverend. C, (1868) 9 W. R. 552 316 
 
 Ranee Tillessuree Kooer v. Ranee Asmedh Kooer, (1875) 24 W. R. loi 337 
 Rani Durga Sundari Dasi v. Bibi Umdatannissa, (1872) 9 B. L. R, 
 
 loi ... ... ... ... ••• ••• 315 
 
 Rani Swarnamoyi v. Shoshi Mukhi Barmani, (1868) 2 B. L. R. (P.C.) 
 
 10 ; 12 xM. LA. 244 ... ... ... ... 219 
 
 Rash Behari Bosu v. Haia Moni Debya, (1888) I. L. R. 15 Cal. 555 ... 162 
 Rash Behari Bose v. Purna Chunder Mozumdar, u888) I. L. R. 
 
 15 Cal. 350 ... ... ... ... ... 162 
 
 Rash Behari Bundopadhya v. Peary Mohun Mookerjee, (1878) I. L. R. 
 
 4 Cal. 346 ... ... ... ... ... 190 
 
 Rash Behari Ghose v. Ram Coomar Ghose, (1874) 22 W. R. 487 ... 177 
 
 Rashmonee Debea v. Hurronath Roy, (1864) I W. R. 280 ... 177 
 
 Rashum Beebee v. Bissonath Sircar, (1866) 6 W. R. (Act X) 57 293 
 
 Reazooddeen Mahomed v. McAlpine, Mr. R., (1874) 22 W. R. 540 ... 40 
 
 Reazoonnissa Beebee v. Motee Sing, (1869) 12 W. R. 135 ... 76 
 
 Reazoonissa, Mussamutv. Tookun Jha, (1868) 10 W. R. 246 ... 179 
 
 Reed, Mr. A.v. Sreekishen Singh, (1871) 15 W. R. 430 ... 312 
 
 Ridgway V. Wharton, (1854) 3 ^De Gex, M. & G. 677 ... ... 211 
 
 Roe ». Hailey, (1810) 12 East 464 ... ... ... 227 
 
 Roghoobun Tewaree v. Bishen Duit Dobey, (1S65) 2. W. R. 
 
 ^Act X) 92 ... ... ... ... ... 312 
 
 Roma Nath Rakheet v. Dhookhee Sham Bhooya, (1869) 11 W. R. 
 
 510 ... ... ... ... ... ... 370 
 
 Romesh Chunder Dutt v. Modhoo Soodun Chuckerbutty, (1866) 
 
 5 W. R. 252 ... ... ... ... ... 135 
 
 Rowshun Bibee v. Chunder Madhub Kur, (1871) 16 W. R. 177 ... 55 
 
 Rubiunnessa v. Gooljan Bibee, (1890) I. L. R. 17 Cal. 829 ... 338 
 Run Bahadoor Singh, Baboo v. Muloorum Tewaree, (1867) 
 
 8 W. R. 149 ... ... ... ... ... 371 
 
 Rungolall Deo v. Deputy Commissioner of Beerbhoom, (1862) Marsh, 
 
 117 ... ... ... ... ... 263 
 
 Rung Lall Sahoo v. Sreedhur Doss, (1869) il W. R. 293 ; 3 B. L. R. 
 
 App. 27 ... ... ... ... ... 372 
 
 Rung Lall Singh v. Lalla Roodur Pershad, (1872) 17 W. R. 386 ... 217 
 
 Rung Loll Sahoo v. Musst. Bhoneshun, (1864) i W. R. 109 ... 83 
 
 Rushton, Mr. IL v. Atkinson, Mr. VV. L., (1869) 11 W. R. 485 ... 228 
 Russick Loll Mudduck v. Lokenalh Kurmokar, (1880) 1. L. R. 
 
 5 Cal. 688 ... ••• ... ... ... 35 
 
 Ruttun Monee Dossee v. Jotendro Mohun Tagore, Baboo, (1866) 
 
 6 \V. R. (Act X) 31 ... ... ... ... 97 
 
 Ruttun Monee Dutt v. Brojo Mohun Dutt, (1874) 22 W. R. 11 ... 117 
 
 s. 
 
 Sadhu Saran Singh v. Panchdeo Lai, (1886) I. L. R. 14 Cal. i ... 98 
 
 Saduck Sircar v. Mohamaya Dcbia, 118G6) 5 VV. R. (Act X) 16 ... 176 
 Samiraddi Khalifa v. llaris Ciiandra Kurmokar, (1869) 3 B. L. R. 
 
 (A.C.) 49 ... ... ... ... ... 171 
 
 Samsar Khan v. Lucliin Dass, (1896) 1. L. R. 23 Cal. S54 ... 302 
 
 Santee Ram Panjah v. Bykunt Parya, U873) 19 VV. R. 280 ... 372 
 Saraswati Dasi v. Dhanpat Singh, (1882) 1. L. R. 9 Cal. 431 ; 
 
 12 C. L. R. 12 ... "... ... ... ... 114 
 
 Sarbananda Basu Mozumdar v. I'lan Sankar Roy Chowdhuri, (1888) 
 
 L L. R. 15 Cal. 527 ... ... ... ... 220 
 
 Sarodapersad Roy Cliowdhry v. Nobinchand Dutt, (1863) Marsh, 417 181 
 Saroda Soonduree Debee v. IJazee Mahomed Mundul, (1866) 5 VV. R. 
 
 (Act X) 78 ... ... ... ... ... 307
 
 TABLE OF CASES CITED. XXIII 
 
 PAGE. 
 
 Sartuk Chunder Dey v. Bhugut Bharut Chunder Singh, S. D. A. 
 
 (1853)900 ... ... ... ••■ ••• 263 
 
 Savi, Mr. R. v. Mohesh Chunder Bose, (1864) W. R. (Act X) 29 ... 181 
 
 Savi, Mr. Thomas v. Obhoy Nath Bose, (1865) 2 W. R. (Act X) 27 ... 366 
 
 Savi, Thomas v. Punchanun Roy, (1876) 25 W. R. 503 229, 313 
 
 Savitriava v. Anandrav, (1875) 12 Bom. H. C. 224 ... ... 272 
 
 Secretary of State v. Ashtamurthi, (1888) I. L. R. 13 Mad. 89 ... 7 
 Secretary of State v. Anandomoyi Debi, Rani (1881) I. L. R. 
 
 8Cal, 95 ... ... ... ... ••• 56 
 
 Secretary of State v. Fahamidannissa Begum, (1889) I. L. R. 
 
 17 Cal. 590 .. ... ... ... •■• 48 
 
 Secretary of State v. Guiu Proshad Dhur, (1892) I. L. R. 20 Cal. 51... 112 
 Secretary of State v. Marjum Hosein Khan, (1885) I. L. R. II Cal. 
 
 359 ... ... ... ... ... ... 112 
 
 Secretary of State v. Xundun Lall, (1884) I. L. R. 10 Cal. 435 
 Secretary of State v. Rasbehary Mookerjee, (1882) I. L. R. 9 Cal. 591 ; 
 
 12 C. L. R. 27 ... ... ... ... 107, 109 
 
 Secretary of State v. Vira Rayan, (1880) I. L. R. 9 Mad. 175 ... 7 
 
 Seth Chitor Mai 17. Shib Lai, (1S92) T. L. R. 14 All. 273 ... 128 
 
 Shadhoo Singh v. Ramanoograha Lall, (1868) 9 W. R. 83 ... 354 
 
 Shaikh Ahmed Hossein v. Mussamut Bandee, (1871) 15 W. R. 91 ... 294 
 
 Shaikh Ashruf v. Ram Kishore Ghose, (1875) 23 W. R. 289 ... 323 
 Shaikh Dena Gazee v. Baboo Mohinee Mohun Doss, (1874) 21 W. R. 
 
 157 ... ... ... ... ... 355- 356 
 
 Shaikh Ghogoolee v. Shaikh Muzhur Hossein, (1875) 24 W. R. 389... 83 
 
 Shaikh Omar v. Abdool Guffoor, (1868) 9 W. R. 425 ... 209 
 Sham Chand Koondoo v. Brojonath Pal Chowdhry, (1 87 3) 2i W. R. 
 
 94; 12 B. L. R. 484 ... ... ... 188,190 
 
 Sham Churn Koondoo v. Dwarka Nath Kubeeraj,(i873) 19 W. R. loo 177 
 
 Sham Jha v. Doorga Roy, (1867) 7 W. R. 122 ... ... 294 
 
 Sham Lai Ghose v. Muddun Gopal Ghose, (1866) 6 W. R. 
 
 (Act X) 37 ... ... ... ... ... 177 
 
 Sham Lai Ghose v. Sekunder Khan, (1865) 3 W. R. 182 ... 84 
 
 Sham Narain Chowdhry v. The Court of Wards, (1875) 23 W. R. 432 318 
 Sharat Chunder Burmon v. Hurgobindo Burmon, (1878) I. L. R. 
 
 4 Cal. 510 ... ... ... ... ... 117 
 
 Sharat Sundari Dabia v. Bhobo Pershad Khan Chowdhuri, (1886) 
 
 L L. R. 13 Cal. loi ... ... ... ... 223 
 
 Sheeb Chunder Mahneah v. Brojonath Aditya, (1870) 14 W. R. 301... 214 
 
 Sheikh Busseerooddeen v. Shib Persad Chowdhry, (1864) W. R. 170... 84 
 
 Sheikh Ekram v. Bebee Buhooran, (1865) 2 W. R. (Act X< 69 ... 176 
 Saeikh Gholam Hyder v. Rajah Poorno Chunder Roy, (1865) 3 W. R. 
 
 (Act X) 147 ... ... ... ... ... 314 
 
 Sheikh Jainooddeen v. Poorno Chunder Roy, (1867) 8 W. R. 129 ... 176 
 Sheikh Mahomed Chaman v. Ramprasad Bhagat, (1872) 8 B. L. R. 
 
 338 ... ... ... ... ... 330 
 
 Sheikh Rahmatulla v. Sheikh Saritulla Kagochi (1868) i B. L. R. 58 ; 
 
 10 W. R. (F.B.) 51 ... ... ... ... 208 
 
 Sheikh Moheem «. Ruheemotollah, Shaik, (1863) 2 Hay 433 ... 347 
 
 Shekaat Hosain v. Sasi Kar, (1892) L L. R. 19 Cal. 783... ... 98 
 
 Sheoburn Lai v. Ram Purtup Singh, (1865) 3 W. R. (Act X) 20 ... 291 
 
 Sheo Pershad Sookool v. Shunkur Sahoy, (1871) 16 W. R. 190 ... 117 
 Sheo Sahoy Panday v. Ram Rachia Roy, (1891) L L. R. 
 
 18 Cal. 333 ... ... ... ... ... 332 
 
 Sheppard ». Allen, 3 Tanut 78 ... ... ... ... 234 
 
 Shib Lall Sing v. Moorad Khan, (1868) 9 W. R. 126 ... ... 274 
 
 Shokoor Ali v. Umola Ahalya, (1867) 8 W. R. 504 ... ... 366 
 
 Shoorender Mohun Roy v. Bhuggobut Churn Gungopadhya, (1872) 
 
 18W. R. 332 ... ... ... ... ... 372
 
 jjxiv TABLE OF CASES CITED. 
 
 PAGE. 
 
 Shoshi Bhooshun Bose v. Girish Chunder Milter, (1893) I. L. R. 
 
 20 Cal. 940 ..• ••• ••• ■•• ... 1 14 
 
 Shovvdaminee Dossee v. Haran Chunder Surmah, (1866) 6 W. R. 
 
 (Act X) 103 ... ••• ••• ••• •■• 364 
 
 Showdaminee Dassee v. Shookool Mahomed, (1867) 7 W. R. 94 ... 362 
 Shunkurputtee Thakoorain, Mussamut v. Mirza Saifoollah Khan, 
 
 (1872) iS W. R. 507 ••• ••• ••• ... 299 
 
 Shuroop Chnnder Bhoomick v. Rajah Pertab Chunder Singh ,(1867) 
 
 7W. R.218 ... ... ••• ••• ... 151 
 
 Siboo Jelya v. Gopal Chunder Chowdhry, (1873) 19 W. R. 200 ... 31 s 
 
 Sikher Chund v. Dulputty Shigh, (1879) I. L. R. 5 Cal. 363 ... 213 
 
 Shanath Panda v. Pelaram Tripati, U894) 1. L. R. 21 Cal. 869 ... 313 
 
 Soman Gope v. Raghubir Ojha, (1896) I. L. R. 24 Cal. 160 ... 233 
 
 Sona Beebee v. Lall Chand Chowdhry, (1868) 9 W. R. 242 ... i^g 
 Sonatan Ghose v. Moulvie Abdul Furar, (1865) B. L. R. Sp. X'ol.iog ; 
 
 2 W. R. 91 ... ••• ••• ••• ... 76 
 
 Sonaton Ghose v. Moulvie Abdool Turrub, (1865) 2 W. R. (F.B.) 205 78 
 
 Sonet Kooer v. Himmut Bahadoor, (1876) I. L. R. i Cal. 391 ... 164 
 Soodha Mookhee Dassee v. Ram Guttee Kurmokar, (1873) 
 
 20W. R. 419 ... ••• ••• ••■ 178,292 
 
 Soodishtee Lall Chowdhry v. Nuthoo Lall Chowdhry, (1867) 
 
 8 W. R. 487 ... ••• ... ... ... 177 
 
 Soorasoonderee Dabea v. Golam Ah, (1873- 19 W. R. 142 ... 136 
 
 Soorjomonee Dossee v.PeareeMohun Mookerjee, (1876) 25 W. R. 331 176 
 Spencer, Mr. H. v. Puhul Chowdhry, (1S71) 15 W. R. 471 Ii5, II7 
 
 Sree Nubudeep Chunder Sircar v. Lalla Sheeb Loll, (1863) Marsh 325 347 
 Sreemunt Lall Ghose V. Shama Soonduree Dossee, (1869) 12 W. R. 
 
 276 ... ... ••• ••• .-. ... 105 
 
 Sreemunt Ram Dey v. Kookoor Chand, (1871) 15 W. R. 481 ... 155 
 Sreemuity Dassee, Sreemuttee, v. Pitambur Panda, (1875) 24 W. R. 
 
 129 ... ... ..• ••• ••• 147, 148. 149 
 
 Sreemutty Doorgamonee Gooptea v. Gobmd Chunder Sen, S. D. A. 
 (1862)260 ... ••• ••• .. ... 151 
 
 Sreemutty Oodoy Monee Debee v. Bisho Nath Dutt, (1867') 
 
 7 W. R. 14 ... •■• ••• ... ... 113 
 
 Sreemutty Wooma Soonduree v. Kishoree Mohun Banerjee, (1867) 
 
 8 W. R. 238 ... ... ... ... ... 314 
 
 Sreemutty Zulfun Beebee v. Radhua Prosonno Chunder, (1878) 
 
 I C. L. R. 388 ... .. ... ... ... 314 
 
 Sreeram Bosef. Bissonath Ghose, (1865) 3 W. R. (Act X) 3 ... 299 
 
 Sreeram Chalterjee v. Lakhun Magilla, (1863) Marsh 379 ; 2 Hay 
 
 427 ... ••• ••• ••• ... 355, 364 
 
 Sreesh Chunder Doss v. .\ssmionissa, (1867) 7 \V. R. 234 ... 360 
 
 Sreestecdhur Ghosal v. Prannath Chowdree, S. I). A. (1858) 170 ... 155 
 Sreesteedhur Dey v. Doorga Narain Nag, (1872) 17 W. R. 462 181, 238 
 
 Sri Maharajah Krisan Pcrtap Sahi v. Tripe, Mr. J. R., (1S97) 
 
 I C. W. N. ccl.\.xi.x ... ... ... ... 341 
 
 Srimati Jannoba v. Girish Chundra Chuckerl)Utty, (1871) 7 B. L. R. 
 
 App. 44 ••• ••• •■• ••■ ••• 135 
 
 Srimati Muiimohini Chowdhrain v. Prem Chand Roy, (1870) 
 
 6 B. L. R. (F.B.), 14 W. R. (F. B.) 5 ... ... ... 369 
 
 Srinath Hazra v. Ramdhun Ilazra, S. D. .\. (1859^ 267 ... ... 151 
 
 Srinath Mookerjee v. Moharajah Maiiataii Chaml Bahadoor, S. D. A. 
 
 (i860) 326 ... ... ... ... ... 204 
 
 Srishteedhur Biswas v. Mudan Sirdar, (1883) I. L. R. 9 Cal. 648 ... 299 
 
 Subbal-aya Kamti r, Krishna Kamti, (1882) 1. L. R. 6 Mad. 159 ... 183 
 
 Sudaiiundd Mytee v. Nowruttun Mytee, (1871) 16 \V. R. 289 ... I39 
 
 Suddyc i'urira v. Boistal) Purira, (1871) 15 W. R. 261 ... ... 299 
 
 Sumecra Khatoon v. Go\yA Lai Tagore, Baboo, (1864) i W. R. 58 ... 355
 
 TABLF. OF CASES CITED. XXV 
 
 PAGE. 
 
 Sumeerooddeen Lushkur v. Huronath Roy, U865) 2 W. R. (Act X) 
 
 93 ... ... ... ... ... ... 291 
 
 Sunduri Dassee v. Mudhoo Chunder Sircar, (1887) I. L. R. 14 Cal. 
 
 592 ... ... ... •■• ... ... 83 
 
 Surahutoonissa Khaiium v. Gyanee Buktour, (1869) 11 W. R. 142 ... 355 
 Surbanund Pandey v. Ruchia Pandey, (1865) 4 \V. R. 32 ... 370 
 
 Surendra Narain Singh v. Bhai Lai Thakur, (1895) I. L. R. 22 Cal. 
 
 752 ... ... ... ••• ■■• 208, 209 
 
 Surendronath Pal Chowdhry v. Tincowri Dasi, (1892) I. L. R. 20 Cal. 
 
 247 ... ... ... ••• ... ••• 190 
 
 Suresh Chandra Mukhopadhya v. Akkori Sing, (1893) I. L. R. 
 
 20 Cal. 746 ... ... ... ... ... 152 
 
 Surnomoyee Dabee v. Koomar Purresh Narain Roy, (1878) I. L. R. 
 
 4 Cal. 576 ... ... ... ... ... 163 
 
 Surnomoye Dassya v. The Land Mortgage Bank of India, Limited, 
 
 (1881) I. L. R. 7 Cal. 173 ... ... ... ... 157 
 
 Surnomoyi Debia v. Grish Chunder Moitra, (1891) L L, R. 18 Cal. 
 
 363 ... ... ... ... ... 147, 150 
 
 Surno Moyee Dossee v. Baboo Khan Mundul, (1868) 9 W. R. 270 ... I77 
 Surya Kant Acharya Bahadur v. Hemant Kumari Devi. (1889) 
 
 L L. R. 16 Cal. 706 ... ... ... 81, 114 
 
 Sutteeschunder Roy Bahadoor, Maharaja v. Modhoosoodun Paul 
 
 Chowdhry, (1864) W. R. (Act X) 91 ... ... ... 341 
 
 Suttyabhama Dassee ». Krishna Chunder Chatterjee, (1880) I. L. R. 
 
 6 Cal. 55 ... ... ... ... 231, 314 
 
 Syed Ahmed Riza v. Aghori, (1868) 2 B. L. R., S. N., xv. ... 347 
 
 Syed Enayet Hossein alias Dhunnoo Meah v. Muddun Moonee 
 
 Shahoon, (1874) 14 B. L. R. 155 ; 22 W. R. 411 ... ... 128 
 
 Syed Jeshan Hossein v. Bakur, (i865> 3 W. R. (Act X) 3 ... 375 
 
 Syed Sufdar Reza v. Amzad Ali, (1881) L L. R. 7 Cal. 703 ... 210 
 
 Synad Ameer Hossein v. Sheo Suhor, (1873) 19 W. R. 338 ... 314 
 
 Syud Emam Momtazuddeen Mahomed v. Raj Coomar Doss, (1875) 
 
 23 W. R. 187 ... ... ... ... ... 190 
 
 T. 
 
 Tabboonissa Bibee v. Koomar Sham Kishore Roy, (8871) 15 W. R. 
 
 228 ... ... ... ... * ••• ••• 212 
 
 Tamaya Bin Annaya v. Timapa Ganpaya, (1883) L L. R. 7 Bom. 
 
 262 ... ... ... ... ••• 183, 231 
 
 Tara Chand Biswas v. Nafar Ali Biswas, (1877) I C. L. R. 236 ... 153 
 
 Tara Chunder Banerjee v. Ameer Mundul, (1874) 22 W. R. 394 ... 333 
 Taramonee Dossee, Mussamut v. Birressur Mozoomdar, (1864) 
 
 I. W. R. 86 ... ... ... .- - 300 
 
 Tara Pershad Roy v. Soorjo Kant Acharjee Chowdhry, (1871) 
 
 15 W. R. 152 ... ... •■• ••• ••• 299 
 
 Tara Soondury Burmonya v. Shibeshur Chatterjee, (1866) 6 W. R. 
 
 (Act X) 51 ... ... ... ■•• ••• 291 
 
 Tareenee Persad Ghose v. Kallee Churn Ghose, (1862) 2 Hay 90 ; 
 
 Marsh. 215 ... ... ... ••• 83 
 
 Tarinee Kant Lahoree Chowdhry v. Kalee Mohun Surmah Chowdhry, 
 
 (1865) 3 W. R. (Act X) 123 ... ... - ••• 177 
 
 Tarinee Kant Lahoree v. Koonj Beharee Awustee, (1869) 12 W. R. 
 
 112 ... ... ... ... ••• ••• ^34
 
 XXVi TABLE OF CASES CITED. 
 
 PAGE. 
 
 Tarini Charan Bose v. Debnarayan Mistri, (1871) 8 B. L. R. App. 
 
 69 ... ... ••• ••• ••• ••• 223 
 
 Tarini JNIohun Mozumdar v. Gun^a Prosad Chuckerbutty a/ias 
 
 Tincowrie Chuckerbutty, (1887) I. L. R. 14 Cal. 649 ... 217, 220 
 
 Taru Patur v. Abinash Chunder Dutt, (1878) I. L. R. 4 Cal. 79 ... 46 
 Tarucknath Mookerjee v. Meydee Biswas, (1866) 5 W. R. (Act X) 
 
 17 ... ... ... ... ... ... 370 
 
 Tekaet Doorga Pershad Singh v. Tekaetnee Doorga Kooeree, (1873) 
 
 20W. R. 154 ... ... ... ... ... 259 
 
 Thakoor Churn Roy v. The Collector of the 24-Pergunnahs, (1870) 
 
 13 W. R. 336 ... ... ... ... 105, 109, no 
 
 Thakoor Teetnath Sahee Deo v. Lokenath Sahee Deo, (1873) 
 
 19W. R. 239 ... ... ... ... ... 415 
 
 Thakooranee Dossee v. Bisheshur Mookerjee, (1865) 3 W. R. (Act X) 
 
 29 ; B. L. R. Sup. Vol. 202 ... 7, 12. 48, 28c, 289, 302, 329, 352, 359 
 The Nawab Nazim of Bengal v. Ram Lai Ghose a/ias Jugobundhoo 
 
 Ghose. (1866) 6 W. R.-(Act X) 5 ... ... ... 46 
 
 The Secretary of State v. Poran Singh, (187S) 1. L. R. 5 Cal. 740 ... 259 
 Thomas Savi v. Punchanun Roy, (1876) 25 W. R. 503 ... ... 313 
 
 Thursbv v. Plant, (1809) i Wms. Saund 230^... ... ... 225 
 
 Tikaram Sing v. Mrs. Anne Sandes, (1874) 22 \V. R. 333 ... 355 
 
 Tiluck Pattuck v. Mohabeer Pandey, (1878) 15 W. R. 454 ... 307 
 
 Tirbhobun Sing v. Jhono Lall, (1872) 18 W. R. 206 ... ... 303 
 
 Tilu Bibi v. Mohesh Chunder Bagchi, (1883) I. L. R. 9 Cal. 683 ; 
 
 12C. L. R. 304 ... ... ... ... 155,200 
 
 Toulmin V. Steere, (1817) 3 Mer. 210 ... ... ... 229 
 
 Tripp, Mr. II. D. v. Kalee Doss Mookerjee, (1864) W. R. (Act X) 
 
 122 ... ... ... ... ... ..• 296 
 
 Tulshi Pershad Singh ». Ram Narain Singn, (1885) I. L. R. 12 Cal. 
 
 117; L. R. 12 I. A. 203 ... ... ... 164,185 
 
 Tweedie Mr. J. v. Ram Narain Dass, (1868) 9 W. R. 151 ... 37i 
 
 u. 
 
 Uddby Adittya Deb v. Jadub Lai Adittya Deb, (1879) 1. L. R. 5 Cal. 
 
 113 ; I. L. R. 8 Cal. 199. ... ... ... 415,416 
 
 Uma Churn Bag v. Ajadannissa Bibee, (1885) I. I.. R. 12 Cal. 430.... 163 
 
 Uma Churn Dull r. Uma Tara Debee, (1867) 8 W. R. 181 285, 306 
 
 Uma Sunkur Sirkar v. Tarini Chunder Singh, (1882) I. L. R. 9 Cal. 
 
 571 ... ... ... '.. ... ... 366 
 
 Umbika Debia v. I'raiihurec Du...s, (i86y) 13 W. R. 475 ; 4 15. L. R. 
 
 (F.B.),77 ... ... ... ... 153,154 
 
 Underbill v. Horwood, (1804) 10 V'es. 209 ... ... ... 214 
 
 Unnoda Churn Dass Biswas v. Mothura Nath Dass Biswas, (1879) 
 
 I. L. R. 4 Cal. 860 ... ... ... ... 155 
 
 Unnoda Persad Roy ». Krskine, (1873) 12 \'>. 1.. R. 370 ... ... 152 
 
 Unriopoorna Dos.sia ». ( )onia Chum Doss, (1X72) 18 VV. R. 55 ... 299 
 
 Unnopoorna Do.ssee v. Radha Mohun i'allro, (1873) 19 \V. R. 95 ... 308 
 
 Upton V. Townend, 17 C. B. 30 ... ... ... ... 230
 
 TABLE OF CASES CITED. XXVll 
 
 PAGE. 
 
 V. 
 
 Venkataramanier v. Ananda Cheuy, (1869; 5 Mad. H. C. 120 ... 242 
 
 V^enkata Soma3'azulu v. Kannam Dhora, ^I882) I. L. R. 5 Mad. 184... 213 
 Vivian v. Moat, (18811 L. R. 16 Ch. D. 730 ... ... ... 232 
 
 w. 
 
 Wahed Ali ». Sadiq Ali, (1872) 17 W. R. 417 ... ... 178 
 
 Walsh V. Lonsdale, (1882) L. R. 21 Ch. D. 9 ... 209, 210 
 
 Ward V. Day, 33 L. J. Q. B. 18 ... ... ... ... 234 
 
 Watson, Messrs. R. & Co. v. Anjuna Dossee, (i868) 10 W. R. 107 ... 176 
 Watson & Co. v. Choto Joora Mundul (1862) Marsh. 68 ... ... 176 
 
 Watson, R. & Co. v. The Collector of Rajshahye, (1869) 
 
 12 W. R. (P. C.) 43 ; 3 B. L. R. (P. C.) 41 ; I3 M. I. A. 160 145, 160 
 Watson & Co. v. Nistarini Gupta, (1884) I. L. R. 10 Cal. 544 295, 366 
 
 Watson, Messrs. R. & Co. z'. Nund Lall Sircar, (1874) 21 W. R. 420 ... 298 
 Watson, Messrs. R. & Co. v. Shurui Soonduree Debia, Ranee, (1867)... 
 
 7W. R. 395 ... ... ... ... ... 329 
 
 Watson, & Co, v. Sreekristo Bhumick, (1S93) I. L. R. 21 Cal, 132 .,. 333 
 Webb ?'. Dixon, (,1807) 9 East. 15 ... ... ... ,,, 227 
 
 Webb V. Plummer, (1819) 2 B. & A. 746 ... ... .,. 285 
 
 Whitmore v. Humphries, L. R. 7 C. P. I ; 48 L. J., C. P., 43 ,,, 221 
 
 Wigglesworth v. Daliison, i Dougl 201 ; i Smith's L. C, 528 ... 215 
 
 Wise, Josiah Patrick v. Bhoobun Moyee Debia, (1863-65) 10 M. I. A. 
 
 165 ... ... ... ... ... ... 135 
 
 Wise, Mr. J. P. v. Ram Chunder Bysack, (1867) 7 W. R. 415 ... 371 
 
 Witham w. Kershaw, (1816) 16 Q. B, Div. 613... ... 182,301 
 
 Woomesh Chunder Chatterjee v. The Collector of the 24-Pergunnahs,... 
 
 (1867) 8 W. R. 439... ... ... 106, 107, 108, 109 
 
 Womesh Chunder Goopto v. Raj Narain Roy (1868) 10 W. R. 15 ... 223 
 Womesh Chundra Roy v. Eshan Chandra Roy, S. D. A. (1859) „. 
 
 1198 ... ... ... ... ... 149, 150 
 
 Woodoyaditto Deb, Rajah v. Mukoond Narain Aditto, Baboo, (1874) •• • 
 
 22 W. R. 225. ... ... ... ... 415,417 
 
 Woodoy Narain Sein v. Tarinee Churn Roy, (1869) 11 W. R, 496 ,„ 171 
 Wooma Churn Sett v. Huree Pershad Misser, (1868) 10 W. R. loi ; ,., 
 
 I B. L, R., S. N., 7 ... .,. ... 300, 348 
 
 Wooma Kant Sircar v. Gopal Singh, (1865) 2 W. R. (Act X ) 19 ... 311 
 Wooma Moyee Burmonya v. Bokoo Behara, (1870) 13 W. R. 333 ... 314 
 Wooma Nath Roy Chowdhary v. Ashumburee Bewa, (1869) 12 W. R. 
 
 47^ ... •.* *•* *** *** •** 35^ 
 
 Wooma Nath Tewaree ». Koondun Tewaree, (1873) 19 W. R. 177 222, 313 
 
 Y. 
 
 Yeshwada Bai v. Ram Chandra Takuram, (1893; I. L. [^18 Bom. 66 „. 35
 
 XXVlll TABLE or CASES CITED. 
 
 PAGE, 
 
 z. 
 
 Zahrun 7'. Gowri Sunkar, (1887) I. L. R. 15 Cal. 19S ... ... 117 
 
 Zerkalee Kooer t. Lalla Doorga Pershad, (1871) 16 W. R. 149 ... 107 
 
 Zoolfun Bibee v. Radhica Prosonno Chunder, (1878) I. L. R. ^Cal. 
 
 560; I C. L. R. 318 ... ... ... ... 315 
 
 Zuheeioodeen Paikar z'. Campbell, Mr. J. D., (1865) 4 W, R. 57 ... 293
 
 ERRA7'A. 
 
 50, footnote 5, fof 1S93 t/'ad 1793. 
 56, 1. 9, foy VIII y^arf IX. 
 „ footnotes 3, 4, 5, 6, for VIII »wrf VII. 
 70, 1. ^4, foy 1705 r^arf 1765. 
 
 81. footnote 5,/o;- VIII (B. C.) yead VIII. 
 
 82, footnotes r, 3, 4,/o; IX yead VIII. 
 
 96, 1. 5./<" 1873 and XVI of 1874 read 1874 and XII of 1S73. 
 99, footnote I, /or VIII yead IX. 
 115, ,, 4../'"- VIII ;rarf VIII (B.C.) 
 1 19- 1- 33. for VII yead VIII. 
 
 128, footnote 5, foy VIII (B.C.) ;rarf VIII. 
 
 129, footnotes i, 2, foy VIII (B.C.) read VIII. 
 210, footnote A, foy 1877 >y>rtrf 1879. 
 
 422, lis. 3, T, foy II >rarf VI.
 
 The Land-Law of Bengal. 
 
 •>5is»>!>C<>^-^ 
 
 LECTURE L 
 
 INTRODUCTION. 
 
 The Land Tenures of Lower Bengal formed the sub- The Tagore 
 
 ject of the Tagore Law Lectures for the year 1874-75. ^^\tnd'''''^ 
 
 The present course of lectures on the Land Law of Tenures 
 
 Bengal will cover much the same ground, and I have the 
 
 advantage of having the learned lectures on Land 
 
 Tenures to help and guide me. But the subject is one 
 
 of great importance, and high authorities have said that it 
 
 is incapable of satisfactory treatment. Besides, oriental Researches 
 
 scholars, both in India and Europe, have, since the si^ce^ST?^^ 
 
 year 1875, succeeded in discovering by their indefa- 
 
 tio-able labours many of the juridical ideas about rights 
 
 in land that prevailed in ancient India. The texts of our 
 
 sages and the various commentaries thereon have, almost 
 
 all of them, been now published and translated into 
 
 English. The large mass of information collected by the 
 
 Rent Commission resulted in the enactment of the Bengal 
 
 Tenancy Act of 1885, which has materially altered the 
 
 law of Landlord and Tenant in many of the districts 
 
 in the Lower Provinces of Bengal. Add to all this, the 
 
 judge-made laws and the expositions of codified and 
 
 customary laws that we find in the twenty-one volumes 
 
 of the Indian Law Reports published since the learned 
 
 lectures on Land Tenures were delivered.
 
 INTRODUCTION. 
 
 Archaic no- Following the usual practice, 1 must beofjn these lec- 
 
 tions in India . . 
 
 about proper- tures by sayiiig a few words about the ancient notion in 
 
 ty in land. India as to the origin of property in land - a notion which 
 
 is not quite archaic, as it is still prevalent amongst the 
 
 people, wherever Mahomedan or British influence has not 
 
 Property been much felt. "A field," says Manu,' ''is his who 
 
 arises from clears it of iunijle, game is his who has first i)ierced it." 
 
 first occupa- . . . . 
 
 tion. The later Roman jurists held the same opinion as 
 
 regards the origin of property in land. Modern jurists 
 have, by the adoption of the historical method of investi- 
 gation, come to the conclusion that this notion about 
 proprietary right in land is without foundation. But 
 the illustration given in the Digest- is curiously the 
 same as that given in Manu. " Wild beasts, birds, fish, 
 and all animals which live either in the sea, the air, or 
 on the earth, so soon as they are taken by any one, im- 
 mediately become, by the law of nations, the property of 
 the captor, for natural reason gives to the first occupant 
 that which had no previous owner." ^ 
 Mahomedan The great Prophet of Arabia said, "Whoever culti- 
 
 •'""^ "■ vates waste lands does thereby acquire property in them." 
 
 The Mahomedan jurists differ in their interpretations of 
 this text of the Koran. According to Abu Haneefa, the 
 mere cultivation of waste land is not enough to create a 
 real right in the cultivator ; tlie permission of the chief 
 is necessary for the acquisition of proprietary right. But 
 his disciples Abu Yusoof and Mahammed, both of whom 
 were judges under the celebrated Caliph Harun-al Rashid, 
 maintain that no permission of the chief is necessary to 
 make the cultivator the proprietor. They say that waste 
 lands are " 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 thi; case of seizing 
 
 "<^Tij%^*^ ^i;iT?TI?.3l'^^rlt«»T«" — Manu Chap. \X,v. 44. 
 
 Di^fcst, Chap. XI.I, 11. 
 ' Sandirs' Justinian, p. 172 (2nd edition).
 
 ORIGIN OF PROPERTY IN LAND. 3 
 
 game or gathering fire wood."^ It may be said that the 
 Mahomedin Jurists who were familiar with the writings 
 of the Romm Juris-consults, the Digest and the 
 Pandects, borrowed this notion of proprietary right in 
 land fron the Eastern Empire and accepted the theory 
 without much consideration. The words of the Prophet, 
 however, are significant, as we have no reason to believe 
 that he himself had access to the theoretical doctrines 
 that prevailed in later days in the Eastern Empire. 
 
 Blackstone's theory is well-known and does not re- eiackstone. 
 quire repetition. It is only an amplification of what the 
 ancient lawyers accepted as the origin of the idea of 
 proprietary right. 
 
 Sir Henry Maine, in his well known work on Ancient Sir Henry 
 Law, has discussed at length this theory of the origin 
 of proprietary right, and he comes to the conclusion 
 that though " this theory, in one form or another, is 
 acquiesced in by the great majority of speculative jurists, 
 the application of the principle of occupancy to land 
 dates from the period when the jus gentium was be- 
 coming the code of nature, and that it is the result of 
 a generalization effected by the Juris-consults of the 
 golden age."^ 
 
 The great Gernan jurist, Von Savigny, has dwelt at Savigny. 
 length upon the Roman theories about possession and 
 prehension and the rights acquired thereunder, and 
 it is stated that he was of opinion that property arose 
 from " adverse possession ripened by prescription." But 
 it does not appear that he agreed in the view of the 
 Roman lawyers. 
 
 It is unnecessary to enter here into the debatable 
 ground as to the origin of property in land, and, 
 for myself, I would feel extremely diffident in express- 
 ing any opinion on a point on which great authorities 
 
 ' Hamilton's Hedaya Book XLV. 3. 
 
 ^ Maine's Ancient Law, Chap. VIII, pp. 246 — 247.
 
 INTRODUCTION. 
 
 Consensus 
 
 Earth res 
 comtnunes 
 according to 
 ancient 
 Indian autho- 
 rities. 
 
 Jaimini. 
 
 have not agreed. It is enough for me to say that the 
 juristical conceptions of the Indian sages, who lived 
 and thought at a time when Rome was in its infancy, 
 were identical with the notions accepted in other coun- 
 tries in later times. This notion about the origin of pro- 
 prietary right in land was firmly established in India. 
 The great Indian poet Bharavi says : — 
 
 T^mf^ ^^T*f TT^w^r ci^ ^ 11^ 
 
 " To whom do wild animals belong ? They are his who 
 lirst pierces them.'' It should be remembered that the 
 Indian sages and lawgivers seldom made any distinction 
 between movable and immovable property. Our Aryan 
 fathers, whether the theory of migration from Central 
 Asia is believed or not, had in Aryyavarta a vast quantity 
 of land, uncultivated and not unlikely covered with virgin 
 forest. They werefond of agriculture andcalled themselves 
 tillers (;-/ to till), in contradistinction to the barbarians 
 inhabiting the forests and hill tracts around, who lived 
 upon the precarious fruits of hunting and the still more 
 precarious natural products of the earth. Premium was ne- 
 cessarily given to agriculture, and he who took possession 
 of land, cleared it and tilled it, was the person entitled to 
 hold it on unmolested. 
 
 But notions about proprietary right could hardly find 
 place amongst people in the earlier stages of civiliza- 
 tion. They are due to juridical relinement. The great 
 Indian sages did not turn their attention to the theory ; 
 they took a practical view of proprietary right. Earth, 
 according to them, was common property just as air or 
 water ; — a right to portions of it accrued from occupancy. 
 The right was not to the soil but to the usufruct. They 
 made no distinction in prim iple between j'cs nullius and 
 res communes. Jaimini's aphorism, which, according to 
 
 ' Kiratarjunyam, Canto XIV, 13.
 
 ORIGIN OF PROPERTY IN LAND. 5 
 
 European authorities, was composed many centuries 
 before Christ, is - " Earth cannot be given away as it is 
 common to all."^ Savara discussing the question of Savara. 
 the right of the king to give away his kingdom in the 
 sacrifice (Yajna) known as Viswajit, and commenting on 
 the aphorism says — " Earth is the common property of 
 all human beings; though there may be occupiers of par- 
 ticular portions of it, none can be the owner of the 
 whole earth."- Sayana also commenting on this aphorism Sayanas 
 says :— " The soil is the common property of all and they ^°'"'"«"tary. 
 through their own efforts enjoy the fruits thereof. There- 
 fore it follows that though pieces of land belonging 
 to particular individuals may be given away, the 
 earth cannot be given away (even by the king)."^ 
 To Roman Jurists " things capable, by appropria- 
 tion, of becoming the objects of private property, but 
 originally belonging to none, would be res nullius^ 
 and what belonged to no one would become the pro- 
 perty of the first one that takes possession of it."'^ The 
 Indian idea would seem to indicate that land was com- 
 munal property. Sir Henry Maine and jurists of his 
 school are also of opinion that in India land was 
 considered to be communal property. Res comfnunes, 
 according to Roman Law, included property belonging 
 
 VI. 7. 2. 
 
 Mimansa Bhashya VI. 7. 2. 
 
 Nayamdld Vistara p. 358. 
 * D. XLI. III.; Gaius II. 66; Hunter on Roman Law p. 256.
 
 b INTRODUCTION. 
 
 exclusively to the public in which no private right could 
 be created, as the seashore or the right of fishing in 
 the sea. On the other hand, occupation might create 
 right in communal property, and by continual occupation 
 even underground rights might be acquired by the 
 occupier.^ 
 Non-Aryan Amongst the non-Arvan races in India, who are 
 
 r3.C6S of '' 
 
 India. thought to be the aboriginal inhabitants, the idea still 
 
 clings that kings are only entitled to rent ; — land whether 
 cultivated or waste belongs to the people. The 
 Mundas of Chotanagpur, who claim as a nation to be 
 the first occupiers of the soil, are so strong in their 
 opinion that they have contested in courts of law the 
 right of the Rajas (the Nag family) to let out on lease 
 the forests which afford timber. The Mundas think 
 that they have exclusive right to the timber which grows 
 in the primeval forests of the hill tracts, and the king 
 or zemindar is only entitled to levy tax. 
 Ownership of From the tenor of deeds, of undoubted antiquity, 
 
 the subjea to ^f sales and alienations of estates, to be found in the 
 
 land recogius- _ ' 
 
 ed by early Mackenzie Collections, and from the traces of indivi- 
 
 Hindu kings. ji •. • i l Jt- j • r^ t^- 
 
 dual proprietary right discovered in Canara, Tanjore 
 and other parts of the country, in which the Mussulman 
 Government was never or only partially establish- 
 ed, there is every reason to conclude that this right of 
 the subject to the ownership of land was universally 
 recognised by ancient Hindu kings.'- Private property 
 in land seems to have been recognised as a sacred 
 right, which even the hand of despotism would rarely 
 violate. 
 
 The right, according to Hindu law, of the (Irst person 
 who makes beneficial use of the soil, was recog- 
 nised by some of the Judges of the Calcutta High Court in 
 
 ' Hunter on Roman Law p. 310; .S.ind.irs' Justinian liool< II, til. 1. 
 ' Ricard's India Vol. I. p. 282.
 
 sovereign's right to tax. 7 
 
 the well-known case of Thakurani Dasi v. Bisweswar High Courts 
 
 • • i\ii ti-i/-^ • recognize 
 
 Miiklierjic^ and by the Madras High Court in two cases the right of 
 
 from Malabar.- Sir Charles '1 urner, the then Chief the first oc, 
 
 cupant. 
 Justice of Madras said — " According to what may be 
 
 termed the Hindu common law, a right to the posses- 
 sion of land is acquired by the first person who makes 
 a beneficial use of the soil. The crown is entitled to 
 assess the occupier with revenue, and if a person who 
 has occupied land omits to use it and the claim of 
 the crown to revenue is consequently affected, the 
 sovereign is entitled to take measures for the protec- 
 tion of the revenue. Whether the practice which has 
 obtained in certain districts of requiring a person, who 
 desires to cultivate waste land to apply to the local 
 revenue officer for permission to do so, has abrogated in 
 those districts the Hindu law, or whether it may be 
 justified by the establishment in those districts before 
 British Rule of the analogous doctrine of the Maho- 
 medan law, we consider it unnecessary to determine 
 in this suit, for we have found that the land appertains 
 to the district of Malabar, and we agree with the judge 
 that there is no presumption in that district and in those 
 tracts administered as a part of it that forest lands 
 are the property of the crown." 
 
 What, then, was the right which the king or chief had Sovereign 
 in the land in his kingdom? The Hindu Sages said, and entitledonly 
 
 f' '=' to a share oi 
 
 said repeatedly, that the sovereign was not the pro- the produce. 
 
 prietor of the soil. He was entitled to a share of the 
 usufruct of the lands in the occupation of his subjects, 
 not because he was the owner, but because a share 
 was payable to him as the price for the protec- 
 tion afforded to life, liberty and property. The re- 
 cords of Hindu thought from the earliest times point 
 
 ' B. L. R. Sup. Vol. p. 202. 
 
 2 Secretary t;. Vira I. L.; R. 9. Mad. 175 ;' Secretary z». Ashtamurti 
 
 I. L. R. 13 Mad 93.
 
 8 INTROD IC'J:CN. 
 
 Rig Veda. to one conclusion. In the tenth Mandal of the Rig Veda 
 occurs the passage — " May Indra ordain that your 
 
 Narada. subjects pay only to you tax ( Vali )."i Narada, 
 
 apparently commenting on this text, defines rali in his 
 Smriti — " Both the other customary receipts of a King 
 and what is called the sixth of the produce of the soil 
 form the royal revenue, the reward (of a king^ for the pro- 
 tection of his subjects."-' European scholars have agreed 
 in asserting that the Rig Veda is the earliest record, 
 we have, of human thought, habits, manners and cus- 
 toms, especially of the Eastern Aryans. They say 
 that the sacred hymns were composed at a time when 
 our Aryan fathers were just leaving a nomadic life and 
 were taking to agriculture as the principal means of 
 subsistence. I do not ask you to accept the theory 
 that these hymns were composed about fourteen hun- 
 dred years before the birth of Christ. To me, as to 
 many of you, these hymns are of divine origin, but 
 accepting as true the conclusions of the European 
 scholars, the text and the gloss of Narada show 
 that even at this earliest stage of civilization, when 
 the king was really the doniinus, he had no right 
 to the soil,— he was paid only for the protection he 
 afforded. 
 
 The later sages are unanimous in this theory of the 
 king's right. I give you only the references without 
 comment. The texts of Manu arc well known."' Yajna- 
 
 VIII. 8. 173. 
 
 ^r»^: M -(\V\ f^f^rr: T?Tliqi?^^%rI»T^ II N.irnd.i Smriti Cli. XVIII. 
 V. 48. Sacred Books of the K.ist, Vol. XXXIII, p. 221. 
 
 ■' Manu Ch. VII, v. 130 ; Chap. X, v. 120 ; Chap. X, v. 118.
 
 SOVEREIGNS BIGHT TO TAX. 
 
 valkya repeats the same idea in verses 335 and 337.1 
 Apastamba- also enunciates the same doctrine of the 
 king's right. Vasishtha, speaking of the king's right, 
 agrees in the opinion of the other sages. =^ The Vishnu 
 Smriti, which is said to be an ancient Dharmasutra, 
 speaking of the king's duties, says : — " He must take 
 from his subjects as tax a sixth part of every ear of 
 the paddy."* — " A sixth part of flesh, honey, clarified 
 butter, herbs, perfumes, flowers, roots, fruits, liquids 
 and condiments, wood, leaves (of the palmyra tree and 
 others), skins, earthen pots, stone vessels and anything 
 made of split bamboo."^ 
 
 I ought to have mentioned earlier the name of 
 Baudhayana, as his language would show that his Dhar- 
 masutra was of a more ancient date. He says : — "Let 
 the king protect his subjects, receiving a sixth part."" 
 
 It is needless to quote any further texts on the sub- 
 ject. It is enough to say that even Parasara, who is Para 
 said to be the latest of the Sutra writers, agrees in 
 saying: — " He (the king) receives taxes, and therefore 
 
 Other ancient 
 texts. 
 
 Baudhayana. 
 
 sara. 
 
 ^^^TITf^^ ??WTfT 5f5TT5Tt qfC^T^^ H 337 
 
 Yajnavalkya Bombay Edition pp. 98-99. 
 
 2 Apastamba Chap. II, 10-26-9. 
 
 3 Chap. XIX 26-27. 
 
 * H5iT«rt^^^' «Wfi^'>!i ^}^f\: isf^fiai^FrT^^TfT 1 
 
 Vishnu Smriti V. 22. 
 Vishnu Smriti V. 25. 
 
 ^ "^^wT^jfft xmj T.%7\ ustt: I 
 
 Buhler p. 192. 
 B
 
 10 INTRODUCTION. 
 
 he should protect his subjects from thieves and others."^ 
 I would only add that the authorities are not unanimous 
 as to the king's share of the grain. The opinion of 
 most of the text writers is that it is the sixth, but you 
 will find when you go through all of them that some- 
 times an eighth, tenth and even a twelfth is considered as 
 proper. Gautama says : — " Cultivators must pay to the 
 king a tax amounting to one-tenth, one-eighth or one- 
 sixth of the produce/'- 
 Jaimini Let US now see what later Indian authorities have 
 
 imansa. ^^.^ ^^ ^^.^^ important subject. I would once more 
 draw your attention to the Mimansa Aphorism of Jaimini, 
 which I have already quoted, and Savara's and Sayana^s 
 commentaries thereon. Savara, discussing the question 
 of the king's right in the passage to which I have 
 already referred you, says: — " He (the king) cannot make 
 a gift of his kingdom as it is not his, as he is en- 
 titled only to a share of the produce by reason of his 
 affording protection to his subjects" ;'^ and Sayana adds, 
 — " A king's sovereignty lies only in his punishing the 
 wicked and protecting the good."' I need hardly 
 say that Sayana, known better and far more widely 
 for his commentaries of the Vedas, is said to have 
 lived about the fourteenth century of the Christian 
 era. The word Bliiimipati or Bhupati means the 
 protector of the earth. This was such a well recog- 
 nised idea that you will find that in many Sanskrit books 
 
 1 ^^^TCtjq^g TT-5!T cI»^Tlf^flfl^^ | 
 
 A\^f\ ^^-^ f\^\\ f\'^\\ fl^V^^A '^\V\ II 
 
 Vrihat Parasara, 
 
 ' Gautama Ch. X. v. 24. 
 
 •'' *iI?^>ft*T^i«^ <CrI^fv4* nJ\ ^q'l gfejsjt ««w JTHt ^t^l^*ft ^^^5f 
 
 f*lf^^«? ^«jf=^rj \{\AV\ %^ 51 >jfl: I 
 
 •* ^T?f3I':Trr3I'i?qrrqifl*iT«ir T[tT ffjri^sf" TJi'gfHRfl?^ ?f?l I 1 ^T"^*!; 
 
 fRvjsi", f^M fipjt »j*fi ?^^»flqif?i ♦^'gisiHt ■^^^^ mf^iit ^i^i^:*! >?si ii
 
 sovereign's right to tax. tt 
 
 the word * king ' is used as synonymous with the expres- 
 sion, "the appropriator of a sixth of the produce."^ 
 Even so late as the fifteenth century of the Christian 
 era, when the Mahomedan Government was firmly 
 established in Bengal and Mahomedan ideas about the 
 relationship between the king and the subject, as con 
 tained in their books on law, were well known and well 
 recognised, Srikrishna Tarkalankar in his commentary 
 on the Dayabhaga of Jimuta Vahana says, — "By conquest 
 and other means a king acquiring a kingdom has no other 
 rights over his subjects than that of collecting taxes." - 
 But you should remember that the Mahomedan conquest 
 of India was never complete. Either from necessity or 
 idleness, the conquerors did not disturb the existing state 
 of things they found in the country. They did not 
 materially interfere with the fiscal system based on the 
 old Brahminical ideas — a system which had pre- 
 vailed for thousands of years before they planted the 
 crescent on the Indian soil. Abu Haneefa and Abu Yusoof 
 and their other great Jurists, who thought and wrote 
 under the early Caliphs, made little impression, at 
 all events, no permanent impression, on the Indian 
 fiscal system. The crescent was floating in the air 
 triumphantly marking the conquest by the followers of 
 the Prophet ; but they introduced no changes in the 
 conquered country except such as necessarily followed 
 a Government headed by men professing a religion 
 almost diametrically opposed to the Brahminical creed. 
 
 The Aryans were essentially agriculturists and cul- Subletting 
 
 •' JO originally 
 
 tivators and, as we have seen, they took pride in the art unknown. 
 in which they excelled the aboriginal races around 
 them. It was not then a disgrace, a cause of shame, 
 
 Srikrishna on Dayabhaga.
 
 12 
 
 INTRODUCTION. 
 
 Intermediate 
 tenures later 
 creation. 
 
 Cultivation 
 insisted on. 
 
 Vyasa. 
 
 as unfortunately it now seems to be, to hold the plough 
 and " break the stubborn glebe." In those early days 
 there must have been many a Cincinnatus in Aryyavarta. 
 But this state of things could not last long. Either from 
 necessity, or from indolence, or from an abundance of 
 Sudra labourers, subletting soon became common. 
 In Thakurani Dasi v. Bisweswar Mukherjee, ^ Justice 
 Campbell, afterwards Sir George Campbell and Lieuten- 
 ant Governor of Bengal, is reported to have expressed 
 the same opinion. "The primitive state of Society, which 
 gave the first occupier a right to continue in occupa- 
 tion and no more, could not possibly last long. Com- 
 plications must necessarily arise and did as a matter of 
 fact arise, and Hindu sages had to grapple with the 
 relations which the more developed state of things 
 required them to deal with." Narada and Parasara had 
 copiously to deal with questions on the relationship 
 of landlord and tenant. I propose to deal later on with 
 the rights of cultivators and the share of the produce 
 which they had to give to the owner of the land. 
 
 Intermediate tenures also were apparently unknown 
 in earlier days. The text books deal only with the right 
 of the owners of land and cultivators. Intermediate 
 tenures must have come into existence in a more de- 
 veloped stage of society. Even the Mahomedan Govern- 
 ment and the British Government, in its earlier days, as 
 will be seen later on, were unwilling to recognise as 
 valid the creation of intermediate tenures. 
 
 Cultivation of land was in those early days strongly 
 insisted upon and penalties were prescribed for non- 
 cultivation by raiyats. This was a matter of necessity 
 in those days, when population was small and the 
 extent of uncultivated area very large. Vyasa says 
 — " If a man after taking a field with the object of culti- 
 vating it fails to do so, either himself or through the 
 
 ' B. L. R. I Sup. Vol, 202. sc. 3 W. R. (Act x) 29.
 
 VILLAGE COMMUNITIES. ^3 
 
 agency of others, he should be made to pay to the owner 
 
 a proportionate share of the corn which the field could 
 
 have yielded if it were cultivated and, in addition, a fine 
 
 to the king."i Narada also has laid down that" when afield Narada. 
 
 is abandoned by its owner and the same is cultivated by 
 
 another without opposition, the cultivator is entitled to 
 
 the whole of the produce and the owner would not get 
 
 back the land without paying the cost of the clearance 
 
 and cultivation." 2 So Yajnavalkya says : — "When a man Yajnavalkya. 
 
 does not cultivate, either himself or by means of others, 
 
 he should be made to pay to the owner of the field the 
 
 amount of grain which the field would have yielded if it 
 
 had been duly sown with crops." ^ 
 
 I cannot leave this part of the subject without noti- Village com- 
 cing the so-called Village Communities. They have been 
 said to be " little commonwealths, independent, self- 
 acting, organized social groups." Sir Henry Maine, in 
 his well-known work on "Village Communitits in the East 
 and the West," has given them such an importance in the 
 history of the growth of ideas about legal rights in land, 
 that no essay on Land Law would be complete without 
 something being said on them. The part supposed to have 
 been played by them in the formation and development 
 
 tnunities. 
 
 Quoted in Vivadaratnakara. 
 
 Narada Smriti Chap. XI. 24. 
 
 ^ ;T^t?ftS§i^qi^ ^^*r^T ^T^n" II 
 
 Yajnavalkya Bombay Edition p. 218.
 
 14 INTRODUCTION. 
 
 of society and ideas as to proprietary right to land is a 
 matter of very great importance, and I would refer you 
 to that admirable book for a fuller study of the nature of 
 Village Communities and their status as political units. 
 Each of these communities or guilds, if' I may use that 
 word, was governed by a council of Elders who were 
 called mandals, pradhans or Jeyt raiyats. Each had its 
 accountant or patwari, watchmen or chowkidars, a family 
 of priests, a family of astrologers, a smith, a barber, a 
 potter and a washerman. In the larger of these com- 
 munities, families of physicians, minstrels and musicians 
 were also to be found. Thus each community could 
 supply to its members the ordinary demands of life, in- 
 dependent of the rest of the world. The headman, 
 assisted by arbitrators or the council of elders, adminis- 
 tered criminal justice on petty offenders and decided 
 questions about civil rights amongst the members of the 
 community. The sentences and decrees of these village 
 tribunals were enforced as mandates of constituted 
 courts of justice, the force of public opinion and the fear 
 of being cast out of the community having been suflficient 
 motives for obedience. They had also duties which 
 municipal commissioners of the present day have. Each 
 community had a public temple dedicated to Siva, 
 Dharma or Kali^ and the meetings of the Council of 
 Elders used to take place in the temple or somewhere 
 near it. But it is a matter of surprise that our Dliarma 
 Sastras — texts and commentaries — -make no reference to 
 these communities. These works, the records of early 
 life and thought, afford us little assistance in tracing 
 the history of the rise and growth of these interesting 
 groups. 
 Their import- In Bengal proper, village Communities existed and do 
 
 still exist in a dismembered condition, but in the North- 
 western Provinces they are to be found even now in a 
 complete form. It is difficult, however, to say what the 
 importance of these communities was in relation to rights 
 
 ance
 
 VILLAGE COMMUNITIES. I 5 
 
 in land. The fact that they were political units, that 
 the headman or council of elders was occasionally res- 
 ponsible to the Raja or the King for the king s share of 
 the produce of the village, would not make the land the 
 common property of the villagers as a body. There is, 
 as far as I have been able to gather, no reason to believe 
 that there was any communal idea or idea of common or 
 joint ownership of land current among the members 
 of any Village Community. The different families 
 that occupied or cultivated the lands of the village 
 were not the descendants of the same parents and 
 there was no necessary kinship amongst them, as has 
 sometimes been erroneously supposed. These families 
 frequently belonged to different gotras and to different 
 castes, and if the members called each other cousins, 
 it was not on account of any relationship by blood or 
 marriage. Nearness of residence and familiarity arising 
 therefrom created'^ a semblance of propinquity ; and a 
 stranger, a European, may be led to think from a cur- 
 sory glance at the outer surface that the members of the 
 community were connected by blood or marriage, genera- 
 tions back. But deeper insight would at once show that 
 there was no reason to believe that there was any other 
 connection amongst the members than the social tie, 
 which must necessarily exist amongst a number of men 
 living close to each other. Of course one community 
 had lands and land-marks distinct from those of another, 
 but each family had rights in the land in its occupation 
 well recognised and distinct from that of another. 
 In the settlement of land revenue in Bengal 
 there was not a single settlement with a village 
 community. The number of permanently settled 
 estates in Bengal and Behar at the end of the official 
 year 1892-93, was 1,34,789 Not one of these was a 
 settlement with a village community as such, not even 
 a settlement with a village headman as representing a 
 village corporation.
 
 i6 
 
 INTRODUCTION. 
 
 Each family 
 was proprie- 
 tor. 
 
 Each village 
 had defined 
 boundaries. 
 
 The truth seems to be that whatever the social and 
 political significance of these village communities was, 
 whatever the part they played in the progress of civiliza- 
 tion, they had not much to do with legal rights or the 
 conceptions about legal rights, of the owners or occu- 
 piers of lands, of individual members or families. Each 
 of these families had its own piece or pieces of land for 
 homestead and cultivation, and the family was the owner 
 thereof. The common grazing ground and the com- 
 mon water course, the village temple and the village 
 gods were communal property in which the families 
 were interested in common, but beyond that there seems 
 to have been no unity of proprietorship. Each family 
 cultivated its own land, as it had done for years, nay 
 for centuries, and under certain circumstances the in- 
 terest which they had in land was transferable. The 
 family could sublet land or get it cultivated by hired 
 labourers. There were restrictions, no doubt, but those 
 imposed were not of a character that would indicate 
 any detraction from proprietary right. The restrictions 
 were for the convenience of the neighbouring holders of 
 land or other members of the community. They were 
 in the nature of the right of pre-emption. 
 
 Each village, however, had, as 1 have already stated, 
 defined limits or landmarks. Yajnavalkya speaking of 
 boundary disputes says, that they are to be decided by 
 old men, chiefs and others.^ The venerable com- 
 
 ' »ft»fl f^WTt ^^«f ^TJT'rlT: ^f^^T^q: I 
 
 Yajnavalkya Bombay Edition p. 213 
 
 In boundary disputes, the following persons are to ascertain the res- 
 pective limits of fields and villages as indicated by the natural 
 elevations, trees, dams, mole hills, husks, bones and masses of charcoal 
 buried underneath and edifices of worship, vis., old men, peasants, tillers 
 of contiguous fields, rangers in the woods and the inhabitants of the 
 neighbouring villages.
 
 VILLAGE COMMUNITIES. I 7 
 
 mentator Vijnaneswara adds that these disputes might 
 refer to provinces, villages, fields and homesteads, ^ indi- 
 cating thereby that each village had its boundary line 
 and each family its fields. Narada- has an entire chapter 
 on boundary disputes ; but he deals more largely with 
 disputes amongst the members themselves of the same 
 village. Vrihaspati similarly devotes a chapter of his 
 Sutras to this subject, and he begins by saying — " Hear 
 the laws concerning boundaries of villages, fields, houses 
 and so forth." I would not tire your patience with quota- 
 tions of well known texts from the Manava Dharma- 
 sastra. Sir Henry Maine when speaking of Village 
 Communities in the East seems to suppose that these 
 peculiar groups were referred to by Manu, "though," 
 he says, " the English found little to guide them to their 
 great importance in the Brahmanical codified laws of 
 the Hindus which they first examined.'^ But beyond 
 certain statements as to boundary-marks and the proce- 
 dure as to determining them and certain other matters to 
 which I shall presently draw your attention, I have not 
 been able to find anything in the Smriti to lead me 
 to believe that the great sage had the idea of the pro- 
 perty of Village Communities being, in any way, com- 
 munal. 
 
 Each village had its grazing ground for the cattle Grazing 
 
 of all its residents and cultivators. It was common ground was 
 
 , 11,1 • 1 i. . • i^ common 
 
 property and none had the right to appropriate any property. 
 
 part of it for purposes of cultivation. Manu^ has laid 
 
 down that grazing grounds are the common property of 
 
 the village, and the people encroaching upon them are 
 
 liable to punishment. Yajnavalkya also lays down 
 
 substantially the same rule, and the author of the 
 
 Mitakshara, commenting on the passage, says — " A por- 
 
 ' Chap. XI. 
 ^Chap. XIX, p. 351. 
 
 ' Manu, Ch. VIII. 
 
 C
 
 1 8 INTRODUCTION. 
 
 tion of land should be left uncultivated for the grazing 
 
 of cows." ^ 
 Agricultural These and similar customary rights which Village 
 
 ^"""^mon^ Communities had could hardly be construed as shewing 
 
 property. that at any stage of the history of these Communities 
 
 the entire land occupied or cultivated by the villagers 
 was considered to be common property. Teutonic or 
 Scandinavian Village Communities, no doubt, resembled 
 in many respects similar institutions in India, but there 
 were marked differences as regards the rights of indivi- 
 dual members. As I have already said, these latter were, 
 at least at their later stages, merely unions for political 
 purposes — protection from outside enemy and peaceful 
 domestic government. As to Bengal proper. Sir Henry 
 Maine says that from causes not yet fully determined 
 the village system has fallen into great decay. For all 
 practical purposes, therefore, a detailed consideration 
 of the history and rights of the Village Communities 
 is unnecessary in these lectures. 
 Acquisition Possession has always played an important part 
 
 of right by -^^ ^jj gygtems of iurisprudence in the acquisition of 
 adverse y j i ^ ^ 
 
 possession. right in land, and the first tiller might lose his right 
 
 by adverse possession by another. It is quite clear 
 
 JT^Tlt^rt TT^^T'^T^ f^??T*Tfq H«T»ftS3i'S; qf^^^*ft?I i<^^: 1 
 
 Yaj naval kya Bombay Edition p. 22 1. 
 
 A certain portion of the land is to be set apart as pasture, according 
 to the will of the villagers or the dircftion of the king. The twice 
 born may glean fuel, flower or grass from any place and at all times. 
 
 Fields in a village are to be ordinarily separated from one another 
 by an intervening uncultivated space ol' a hundred dlianus {i.e. 200 yards) 
 on all sides. If the village abounds in thorn the space is to amount to 200 
 dhnntis (400 yards). In cases uf |)opuli)US towns the space to be left 
 open shall be 4OO dlianus or ^8oo yards). See also Manu Ch. VIII. 237.
 
 PRESCRIPTION. 19 
 
 that during the period when the sutras were composed 
 by the venerable sages with whose names you are 
 familiar, right by possession and effect of adverse 
 possession as creating prescriptive right were well 
 understood and recognised. The Vishnu Smriti lays 
 down : — " If possession has been held of an estate by 
 three ( successive ) generations in due course, the 
 fourth in descent shall keep it as his property, even 
 without a written title." ^ Vrihaspati has an entire 
 chapter on title by possession. He says — " When pos- 
 session undisturbed (by others) has been held by three 
 generations (in succession), it is not necessary to pro- 
 duce a title; possession is decisive in that case."^ The 
 next three slokas repeat the same idea, and in the 
 thirty-first and thirty-second slokas uninterrupted 
 and longstanding possession is considered to be neces- 
 sary to create title by possession, and the sage adds — 
 " A witness prevails over inference ; a writing prevails 
 over witness ; undisturbed possession which has passed 
 through three lives prevails over both."^ In another 
 sloka the sage seems to imply that a period of thirty 
 years is time enough. " He whose possession has been 
 continuous from the time of occupation, and has never 
 been interrupted for a period of thirty years, can not be 
 deprived of such property."* I can not here resist Estoppel by 
 the temptation of quoting, though it is out of place, ^onduft. 
 another verse from the same siitra in which the 
 doctrine of estoppel by conduct is recognised as creating 
 title. " He who does not raise a protest when a 
 
 Institutes of Vishnu. Cliap. V. 187, Jolly p. 40 
 2 Chap. IX, V. 28, Jolly p. 313. 
 
 » Chap. IX, V. 29, Jolly p. 314. 
 
 ^ Vrihaspati, Chap. IX, V. 7, p. 310.
 
 20 INTRODUCTION. 
 
 stranger is giving away his landed property in his sight 
 can not again recover the same, even though he be 
 possessed of a written title to it.'" Narada also refers 
 to possession for three generations f other authors of 
 the Sutras have reduced the period to twenty years. 
 " If a man knowingly and without complaint allows 
 another, who is in no way related to him, to be 
 in possession of his land for twenty years and of 
 movable property for ten years, his right to the same 
 becomes extinguished."^ Vyasa, whose authority in 
 these matters is very high, is also of opinion -" If 
 the land of one is possessed by another for twenty 
 years, his right to sue for possession ceases."* Mitra 
 Misra in his Viramitrodaya, a work of great authority 
 in the Benares school, giving his own gloss on these 
 texts, comes to the conclusion— " If a person whose 
 land or movable property is enjoyed by another for 
 more than twenty or ten years respectively, if he is 
 not an idiot or a minor, his right to sue for the recovery 
 of the same becomes barred and the possessor acquires 
 a title."' 
 Period neces- Other sages, notably Katyayana, are of opinion that 
 
 tUle^by'^^d! asmartha kala (time immemorial) creates title. Raghu- 
 verse posses- nandana who was a contemporary and fellow student 
 of Chaitanya and who lived in the fifteenth century 
 
 ' Vrihaspati, Ch. IX, V, $, p. 310. 
 
 2 ^^-^^ g ^■^ &c. 
 
 Yajnavalkya p. 125. Bombay Ed. 
 
 ^ffi ^ifsr ■^^h^ ti'a %f t f%«iffi ii 
 
 ^ ^5i^^^(ftiT^ Sj3(m =^H?I ^5q^ I 
 
 Viramitrodaya, Jivananda Vidyasa^ar's Edition, p. 210
 
 RIGHT OF ALIENATION. 21 
 
 after Christ in Nuddea has attempted to reconcile the 
 apparently conflicting texts, and has held that according 
 to all authorities, " before the lapse of twenty years the 
 possessor's right accrues only to the things produced by 
 his own labour and after that period his right is 
 perfected." ^ 
 
 We thus see that though originally the first occupier Extinguish- 
 of land was considered as the true owner and entitled J^fJI^n^UatSn^ 
 to the usufruct, he or his heirs could lose the right 
 on account of adverse possession by another, that is to 
 say, limitation in the language of Indian law.^ The 
 period of adverse possession as creating right or barring 
 remedy was originally considered to be time immemo- 
 rial or three generations. It was reduced to thirty 
 years, and later on, the most approved authorities con 
 sidered twenty years as the legitimate time to perfect 
 possession into prescriptive title. The law of England 
 as to acquisition of right by prescription passed 
 through similar stages, until the period was reduced to 
 twenty years, and quite recently to twelve years. 
 
 The right to enjoy the usufruct by the first occupier Non-aliena- 
 or his legal heirs became in course of time alienable. It -^^ 'ancienf " 
 would seem that originally it was only heritable but not times. 
 alienable. Vtj'naneswara, in his well known commentary 
 on the text of Yajnavalkya, expounded what was 
 apparently in his days the idea as to non-alienability of 
 land when it was occupied by the members of a joint 
 family and was ancestral. But the rival idea as to alien- 
 ability was making its way, and Vijnaneswara himself 
 admitted that right as exercisable under certain circums- 
 
 Vyavaharatattwa, Madhusudan Smritiratna's Edition p. 32. 
 •■= Act XV, of 1877. Sec. 28.
 
 22 INTRODUCTION. 
 
 tances. Jimutavahana, however, entirely discarded the 
 theory of non-alienability, and according to him every 
 owner of land, if a male, had the full right to transfer 
 the same either by gift or sale. The sutras — the prime 
 source of Hindu law and the best means we have 
 of knowing original Indian ideas on any subject — 
 were slow to recosfnise the right. You will find in 
 them texts in which the sages held that land once ac- 
 quired was property which was for the benefit of all 
 generations to come. 
 Mahomedans Such or nearly such were the principal juridical 
 
 systerrr'of°^^" theories prevailing in India as regards ownership of 
 Jurisprudence, land. In came the Mahomedan conquerors about the 
 beginning of the thirteenth century. They had their 
 own system of jurisprudence which differed in many 
 respects from what they found to be in existence 
 in India. But their doctrines of fiscal system were of 
 recent date. Abu Haneefa and his two disciples Abu 
 Yusoof and Mahammad had done much to consolidate 
 and give a turn to the theories and practices of the 
 earlier Caliphs ; but considerable development was still 
 needed. When the followers of Mahomed established 
 themselves in India, they found that they were amongst a 
 nation, just as the Romans had found themselves 
 amongst the Greeks. The Hindus had a developed 
 system of Jurisprudence, and a contest both as to 
 theories and practices between the Hindu and Mahome- 
 dan nations was almost inevitable. The result, however, 
 has shewn that in the contest the Hindu principles 
 survived. Akbar's Hindu proclivities are especially 
 well-known. Yajnavalkya' has^said that as soon as a 
 country is brought under subjection, the people ought 
 
 •J 
 
 Yajnavalkya Bom. Edition p, loo.
 
 KHIRAJ. 23 
 
 to be governed according to their own laws, manners 
 
 and customs. This is a well-approved rule of inter- Mahomedan 
 
 national jurisprudence, and the Mahomedans, however ^birtomfidels 
 
 much they hated any rules or principles except those notapplied in 
 
 laid down in the Koran, were compelled in India to accept, 
 
 in many instances, the ancient Hindu principles. They 
 
 respected possession, and the strict rules applicable to 
 
 infidels, according to their own jurists, were not applied 
 
 to India. The principle of Musalman Government was — 
 
 " If the Imam conquered a country by force of arms, he 
 
 was at liberty to divide it among the Musalmans or he 
 
 might leave it in the hands of the original proprietors, 
 
 exacting from them a capitation tax called the zezyat 
 
 and imposing a tribute upon their lands known as 
 
 the khiraj. The oosher {tithe) should be imposed . 
 
 only upon believers."^ According to this theory, the 
 
 conqueror was considered as the proprietor of the 
 
 land, and the doctrine of Abu Yusoof is that the khiraj 
 
 should be levied as a punishment, the land being con 
 
 sidered as lapsed for infidelity. The >^Az>«y according 
 
 to tht- Mahomedan doctrine varied with the nature of the 
 
 land, detailed rules being laid down both by Abu Yusoof 
 
 and Mahammad.2 In India, however, no land was drs- 
 
 tributed amongst the Musalmans. Small portions might 
 
 have been given to soldiers as jaigirs and aymas^ but 
 
 " Let him establish the laws of the conquered nation as declared in 
 this book." See also — 
 
 MiTT^lf'T'^ W^'^ ^^t ^'JIT'T 51^'^f^c^TST 1 
 
 Manu Chap. VII. v. 203. 
 
 Vishnu Ch. III. v. 42. 
 ' Hamilton's Hedaya Vol. II. p. 209. 
 ^ Hamilton's Hedaya, Vol. II, p. 207.
 
 24 I NTRODUCTION. 
 
 Convnated tliese Were sfe'ierallv waste lands. They levied the khirai, 
 
 into money _ ^ ' _ •' _ -^ ' 
 
 rent. and applied the theory of proprietorship of tiie king in 
 
 the soil, but, as I shall presently show, the kJiiraj was 
 
 soon commuted into money rent ; and, according to another 
 
 theory of Mahomedan jurisprudence, the commutation 
 
 of a share of the produce into a fi.Ked money rate took 
 
 away the sovereign's proprietary right. The practical 
 
 result was the same as if the king was not the proprietor 
 
 of the soil but was only entitled to rent. When rent 
 
 was once fixed, there was no doctrine of increase from 
 
 the iinearned increment, and the sovereign's right was 
 
 fixed for ever. The customary rent which had prevailed 
 
 under the Hindu kings was no doubt superseded. A 
 
 new custom in increased proportion was established, but 
 
 there was nothing like competition rent. 
 
 The imposi- The imposition of the khiraj did not deny the 
 
 khiraj did existence of property in land and take away the pro- 
 
 nottakeaway prietorship of the Cultivator. His right was alienable 
 the proprie- ^ ^ . • i i i 
 
 torship of the and " the lands cultivated continued to be the property 
 cultivator. ^j ^^ inhabitants who might lawfully sell or otherwise 
 dispose of them."^ The sovereign was entitled only 
 to a share of the produce, which could be even as much 
 as a half. But in India the khiraj was never formally 
 levied, though an attempt was made to do so by Alla- 
 uddin in the beginning of the fourteenth century. 
 When the sovereign's share of the produce was con- 
 verted into money rent, the liability became personal, 
 the cultivator having higher rights as regards the land 
 itself. In the words of the Fatwa Alumgiri, " by the 
 imposition of the wazifa khiraj the sovereign ceased 
 to be a partner of the cultivator/'^ No permission of 
 the sovereign was required to validate alienation. 
 I have already adverted to the original Mahomedan 
 doctrines as to waste lands. The first cultivator was the 
 
 ' Baillie's Land Tax. XX. 
 
 ' Tftgore Law Lectures 1874-75, p. 48.
 
 ASSIMILATION OF RIVAL SYSTEMS. Ǥ 
 
 proprietor in virtue of having brought the land into 
 a state of cultivation.'" He was bound to pay only the 
 tithe, and, under some circumstances, the tribute. Thus, 
 on the whole, the Mahomedan principles of fiscal govern- 
 ment did not practically vary from the Hindu, 
 
 But causes other than the mere introduction of the Assimilation 
 
 . , .of the Hindu 
 
 Hanifite doctrines were at work to bring about the assi- & Mahome- 
 
 milation of the Mahomedan to the previously existing dan systems. 
 Hindu systems of fiscal administration. The Mahomedan 
 conquest of India was never complete. The battle 
 field on the Caggar, where Prithwiraj and his brave 
 followers sacrificed themselves to the cause of inde- 
 pendence, broke down the imperial power of the Hindus, 
 and most of the small principalities, with which Nor- 
 thern India was studded, yielded without struggle, and 
 accepted the Mahomedan yoke agreeing to pay tribute. 
 It was not until the days of Akbar that any serious 
 effort was made for the collection of the khiraj direct 
 from the cultivators. Even then the hereditary chiefs 
 who had long ancestries to tell were not disturbed. 
 They got sanads\^\i\z\s. provided for payment of nominal 
 sums as rent {khiraj). The apathy and the carelessness of " 
 
 the Nabobs brought about a system of non-interference 
 with the internal management, whether fiscal or judi- 
 cial, of the various provinces ol the empire, and the 
 Hindu Rajas or Zemindars, call them by what name you 
 will, took the fullest advantage of their position. Oppor- 
 tunity was afforded for the progress and development of 
 indigenous systems of thought, language, literature and 
 law, unchecked and unfettered by Semitic influence. 
 It is a curious phenomenon in the history of the Indian 
 people, a history which, I regret to say, has not yet 
 been written, that, notwithstanding the alleged mis- 
 government and tyrannical sway of the followers of the 
 
 ' Hamilton's Hedaya, Vol. IV, p. 130. 
 D
 
 26 INTRODUCTION. 
 
 Prophet in India, social and religious ideas, legal 
 and philosophical conceptions of the Hindus, and even 
 some of the vernacular languages, made, during the 
 centuries just preceding the rise of the British power 
 in India, an extraordinary progress without any encour- 
 agement from the ruling power. The customs, usages 
 and customary laws of the Musalman sovereigns made 
 little or no impression on the people except at the 
 capitals and large cities, where only their influence 
 was most felt. Both in Europe and in India, the 
 fifteenth century was a period of rapid changes and 
 development in religion and literature, not less in 
 legal conceptions. The changes in India were, however, 
 not revolutionary and bloody, as they were in Europe. 
 The Musalmans, intolerant though they might be, did 
 not persecute the Brahmanical Hindus or any of the 
 various sects that sprung up in that century, to the 
 same extent as the Roman Catholics did the Protestants, 
 or the Protestants the Roman Catholics. 
 Praaical in- The Hindu Rajas and Zemindars, though theoreti- 
 
 dependence cally they were merely collectors of land revenue, had to 
 mindtrs.^^" perform almost all the functions of the sovereign. They 
 heard and decided cases, civil and criminal, and enforced 
 obedience to their decrees and sentences, in the same 
 way as sovereigns. They had their own law-officers 
 or Pandits. The police administration was under them. 
 In fiscal matters, their authority was supreme, the inter- 
 ference by the ruling power being really few and far 
 between. The necessary result was the practical conti- 
 nuation of the old Hindu systems. It was at this 
 period that a number of glosses and commentaries on 
 the sutras were composed and published, apparently 
 for the purpose of facilitating the administration of 
 justice, which gave fresh life to Indian legal concep- 
 tions. The Hindu kingdoms in the Deccan, notably 
 Bijayanagar, did much for the revival and advancement 
 of Sanskrit learning, literature and law.
 
 REVENUE SETTLEMENTS, 27 
 
 I shall close this lecture with a few words on the Revenue 
 
 settlements 
 history of the revenue settlements made under the under the 
 
 Mahomedan rulers and on the advent of the British. J^J^^"""^'^^" 
 
 Under the vigorous despotism of Allauddin Khiliji^, an 
 
 endeavour was made to increase the land tax (khiraj) Allauddin 
 
 1 , , • • 1 J i^i.1 i. Khiliii, 
 
 and to exact it more vigorously, and settlement was, 
 
 in some provinces, made with the cultivators direct, 
 Sher Shah,^ a prince of consummate prudence and ^^^^ Shah, 
 ability, introduced during his short reign many improve- 
 ments in the civil government, and the settlement of 
 land revenue was one of them. His son Selim Shah Sellm Shah, 
 followed him and made some further improvements. 
 Immediately after, followed a period of contest be- 
 tween the Afghan and the Moghul. The revenue system 
 of Akbar is, however, celebrated for the benefits it con- 
 ferred on India, though it was no new invention. Akbar's 
 scheme was to carry out the previous system into effect Akbar. 
 with greater precision and correctness. " It was,^' to use 
 the words of a learned historian of India, "only a conti- 
 nuation of a plan commenced by Sher Shah.''^ 
 
 I shall not detain you with a description of the reve- Todar Mai's 
 nue system of Akbar, known more generally as Raja ""eform. 
 Todar Mai's reform. You will find every thing that can 
 be said with reference to this matter elaborately dealt 
 with in the Tagore Lectures for 1874-75, and in almost 
 all the bigger histories of India. I need only add that 
 Raja Todar Mai entirely ignored the distinction made 
 by Abu Haneefa between Oosher and Khiraj^ between 
 Mahomedans and Hindus. Instead of the sixth levied 
 by Hindu Rajas, the rate was increased to a fourth, 
 and occasionally to a third. An average of ten years 
 was taken, and the cultivators were allowed to pay 
 
 ' 1295 to 1316 A. D, 
 2 1540 to 1545. 
 
 ^ Elphinstone's India 5th Ed. 541.
 
 2&. INTRODUCTION. 
 
 money rent. The settlement was nominally for ten 
 years. But there are reasons to believe that the settle- 
 ment was never completed in Bengal. Many of the 
 ancient Rajas of Bengal held out, and their lands were 
 never measured or assessed. They paid only nominal 
 tribute or revenue to the imperial exchequer. Raja 
 Todar Mai, it is said, had ignored the zemindars, but 
 those whom he had ignored in Bengal were few; and 
 they were soon restored to power by the influence of 
 circumstances. 
 Rig^its of The rights, under Mahomedan settlement, of the class 
 
 cultivators. ^^q^^j^ ^s zemindars and the rights of the cultivators are 
 matters of great importance, as the principles of the 
 settlement of Land Revenue under the Anglo-Indian 
 Government, are to a great extent based on them. I 
 propose to say a few words on the rights of the zemin- 
 ' -'■ dars later on. The rights of the cultivators is a question 
 of ^'reat difficulty. The distinct revival, in the reign of 
 Akbar, of the old Hindu system under his Hindu minis- 
 ter, would seem to imply a revival of the principle which 
 distinctly recognised the right of cultivators to hold on 
 and enjoy the usufruct, and even to alienate and subdet. 
 It was, to all intents and purposes, a proprietary right, 
 subject to the payment of a definite share of the 
 produce, which, since Raja Todar Mai's settlement, could 
 be called customary rent. Ejectment was unknown 
 excej)t for non-cultivation or continuous non-payment 
 of rent. Competition-rent was never thought of. The 
 very fact that ahwabs or illegal cesses were now and 
 then levied, shews distinctly that the raiyats believed that 
 rent was fixed and unalterable except under very pecu- 
 liar circumstances. To use the words of the framers 
 of the Regulation Code of 1793, — "The ruling power 
 was entitled to a share of the produce of every bigha 
 of land'" — not, however, as proprietor of the soil but as 
 rcsponsibli- for the pri)tc( lion afforded to the subject. 
 
 ' Preambles to Regulations XIX and XXXVIl uf 1793.
 
 THE DEWANY. 2^ 
 
 The victory of the English army at Plassey estab- Sovereignty 
 lished in Bengal the nominal vice-royalty ot Mir Jattar India Com- 
 and the actual sovereignty of a company of English P^"^- 
 merchants. This company had, on the last day of the 
 sixteenth century, obtained from Queen Elizabeth the 
 exclusive liberty of trading in the East Indian seas, 
 and were attracted to Surat and the other Malabar cities 
 for the purchase of cloth and calico. In those days, 
 only three hundred years ago, India was, perhaps, 
 the only country that supplied the world with piece 
 goods : Manchester has now practically taken the place 
 of Indian cotton manufacturing cities. These merchants 
 were bent only upon commercial aggrandisement, and 
 had, until the year 1757, little to do, in Bengal, with 
 the government of a nation, its laws or customs. An 
 accident, however, made them the rulers of a people 
 dissimilar from themselves in almost every respect. 
 On the 12th August 1765, they were compelled under TheDewany 
 peculiar circumstances to obtain a formal recognition 
 of their title as Dewan of the titular Emperor of 
 Delhi, on an agreement to pay an annual sum of 
 twenty-six lacs as revenue of Bengal, Behar and 
 Orissa. They knew not at the time what to do for the 
 proper administration of justice, and were, therefore, 
 compelled to introduce in India a system of juris- 
 prudence with rules of procedure and notions of pro- 
 prietary right, which may well be characterised as a 
 parody of what they then had in England. There was 
 also another disturbing influence at work at the same 
 time. Having obtained the Dewany from the Great influence of 
 Moghul, they thought that they should follow the Musal- ^an ^//s'Jem.^" 
 man system. From the Mahomedan financial system, 
 therefore, they claimed the inheritance of a right to 
 seize upon an unduly large portion of the gross produce, 
 and coupled the same with their own doctrine of the pro- 
 prietary right of the sovereign by reason of conquest. 
 The period of nearly seven years from the grant of the
 
 3° INTRODUCTION. 
 
 Dewany was one of " utter darkness," especially on 
 account of the double government — the Dewany of the 
 English and the Nizamat of the Nabob of Mursidabad. 
 The complications resulting from the operation of dis- 
 similar, I may say inconsistent, fiscal systems brought 
 about a state of things which may be said to be 
 chaotic. The greed of the Board of Directors of the 
 East India Company and the no less greed of their ser- 
 vants in Bengal, together with the impoverishment and 
 depopulation caused by the terrible calamity of 1770, 
 made confusion worse confounded. Under such circum- 
 stances, the British Parliament interfered ;i but even the 
 genius of Warren Hastings was not sufficient to bring 
 order out of chaos. 
 Proprietary The English in India started with the assumption that 
 
 Government "^^ ^^^- ^o'' belonged in absolute property to the sove- 
 reign, and that all private property in land existed by his 
 sufferance."- This was, as we have seen, the doctrine 
 of Abu Haneefa, and accorded with the English theory 
 that " the proprietas or actual ownership of the land 
 always resided in the sovereign."'' The existence of 
 private property in land which is the fundamental doc- 
 trine of Hindu jurisprudence and which, as we have 
 seen, even the Mahomedan government in India did not 
 put out of sight, was entirely ignored. With this idea, the 
 Government in 1793 transferred in perpetuity a vast 
 and then unmeasured quantity of land to a class of 
 men who were and are known as zemindars^ and the 
 property in the soil was formally declared to be vested 
 in them.' The remaining quantity of land, cultivated 
 or waste, continued to be the property of the state. 
 
 ' 13 Geo. III. c. 63. 
 
 '' Maine's Village Communities Lee. IV. 
 
 ' Stephen's Blackstone Book II, I't. i Ch. II. 
 
 * Preamble to Reg. II. of 1793-
 
 DIVISION OF THE SUBJECT. 3 1 
 
 Taking this theory of proprietary right as the basis, Division of 
 
 the subject of these lectures may be broadly divided ^ ^" ^^^ " 
 under the following heads : viz. — 
 
 Khds Mahals. 
 
 Revenue-free Estates. 
 
 Permanently and Temporarily settled Estates. 
 
 Intermediate Tenures. 
 
 Raiyati Holdings.
 
 LECTURE II. 
 
 KHAS MAHALS. 
 
 Khas " A Khds M nhdl is an estate in the private possession 
 
 Mahiil de- of the Government as proprietor." ^ Waste lands not 
 included within the area of any permanently settled 
 estate, islands thrown up in large navigable rivers, 
 resumed revenue-free lands, and settled estates which 
 have lapsed to Government are included within this 
 definition. In the Bengal Tenancy Act (VIII of 1885), 
 Government kh^s mah^ls are "estates"-, and the 
 Government is a "proprietor" owning estates.'^ The 
 Government is also a " landlord " like other landholders. ' 
 
 Calcutta. 01 ^^^ kh^s mahals, Calcutta, the metropolis of India, 
 
 deserves our first attention. At the date of the Devvany 
 (i2th August 1765), the East India Company held by 
 purchase the taluqdari right of Calcutta and of the ad- 
 jacent villages, Sutanati and Gobindpur, subject to an 
 annual payment of Rs. 1195 as revenue to the Great 
 Moghul. The purchase was made in 1698. The lands 
 of these three villages were partly occupied by the Com- 
 pany, but the major part was held by tenants who paid 
 rent to the Company as taluqdar. 
 
 The ground-rent payable to the East India Company is 
 revenue^ within the meaning of 21 George III. c. 70, and 
 the Supreme Court had no power to interfere with its as- 
 
 ' Field's IntroduMinn to the Kcgulations of tlie Bengal Code, p. 41. 
 
 ' Sec. 3. Sub-S.T. (I) 
 
 ••' Sec. 3. Sub-Sec. (2) 
 
 " Sec. 3. Sub-Sec. (4) 
 
 " Aa XXIII of 1850 and Aft XVIII of 1856.
 
 CALCUTTA. 
 
 33 
 
 sessment and collection/ and the High Court in its Or- 
 dinary Original Civil jurisdiction has likewise no power 
 in these matters. 
 
 There were a good many revenue-free tenures in Its revenue- 
 Calcutta, and lands held exempt from assessment for sixty ^y^tem. 
 years were declared by the Act of 1850- valid lakhiraj. 
 The revenue-paying holdings in Calcutta are estates in 
 the ordinary significance attached to the word. The 
 provisions of Bengal Act VII of 1876 — the Land Regis- 
 tration Act — have been applied to all holdings, revenue- 
 paying as well as revenue-free, though most of the 
 other incidents of estates in the mofussil do not hold 
 as regards them. It is said that there are about ten 
 thousand holdings or estates in Calcutta. The Govern- 
 ment-claim for land-revenue has priority over all other 
 claims on the land,^ and the amount is leviable by distress, 
 the period of limitation being six years.* The Govern- 
 ment has no proprietary right in these holdings ; the 
 right is simply to receive fixed sums as revenue or quit- 
 rent. The proprietary right is in the holders. The 
 tenure of land is of the nature of free-hold, and though 
 pottahs are often taken from the Collector of Calcutta, 
 they are not considered as muniments of title. ^^ 
 
 It is curious to find that such of the lands in Calcutta Rate of 
 
 11111 1 1 r assessment, 
 
 as were assessable, but had not been assessed before, 
 
 were declared assessable at the rate of three annas per 
 cottah, that is to say, three rupees and twelve annas per 
 bigha.*' This low rate of revenue would seem to be sur- 
 prising to any one familiar with the assessment of land 
 revenue in other parts of Bengal ; but land revenue or 
 land tax is very low in England, and Calcutta had the 
 advantage of being governed under the rules and princi- 
 
 > Aa XXIII of 1850, Sec. 12. ^ Aa XXIII 1850, Sec. 2. 
 
 ^ Aa XXIII 1850, Sec. 6. * Aa XXIII 1850, Sec. 7. 
 
 ^ Gardiner v. Fell, i M.I. A. 299 ; Freeman v. Fairlie, iJM.I.A. 305. 
 ^ Aa XXIII of 1850, Sec. 2. 
 
 E
 
 34 KHAS MAHALS. 
 
 pies that prevailed in England before the passing of the 
 Regulating Act of 1773-^ 
 
 Sutanuty. After the battle of Plassey, Mir Jdffdr granted a 
 
 sanad for the free tenure of these villages and six 
 hundred yards of land without the Maharatta ditch. 
 The rents of these mouzas were forgiven. Later 
 on, and in the year 1778, the Company transferred to 
 Maharajah Nobo Kissen of Sovabazar, in the town of 
 Calcutta, the taluqdari right of Sutanuty, fixing the annual 
 rent at Sicca Rs. 1237. 
 
 Incidents of '^^^ holdings in taluq Sutanuty, which form nearly 
 
 tenancy. two-fifths of the tovvn, are generally rent-free. The rent- 
 
 paying holdings which have existed from before the year 
 1778 are all permanent, hereditary and transferable. 
 The rent-charge is so small that it may be said to be 
 nominal. The rent is realisable by suits in the Calcutta 
 Court of Small Causes, provided the amount does not 
 exceed its pecuniary limits. The taluqdars of Sutanuty 
 have not, by the terms of the grant, the right to demand 
 or receive a larger amount of rent than " what has been 
 customarily received, viz., Rs. 3-12 as. per bigha." By 
 the terms of the grant the power of enhancing rent 
 beyond that limit was taken away. But this restriction 
 to enhancement can only apply to lands held under 
 taluqdari right. 
 
 Fixtures ^ "^^Y ^^''^ mention some of the peculiarities in the 
 
 law relating to landlord and tenant in Calcutta — I mean 
 
 the part of the tovvn which is within the Ordinary 
 
 Original Jurisdiction of the High Court. ^ The rules of 
 
 law laid down in the Indian Contract Act (IX of 1872) 
 
 and the Transfer of Property Act (IV of 1882) must 
 
 now regulate the general incidents of tenancy in 
 
 Calcutta. The several Tenancy Acts passed for the 
 
 Bengal Provinces have no application here. In the 
 
 ' 13 Geo. III. c. 63. 
 
 ^ For the definition of Calcutta see Proclamation by the Governor- 
 General in Council, dated the loth September, 1794.
 
 CALCUTTA. 35 
 
 absence of express contract or any provision in the 
 Contract and Transfer of Property Acts, the High Court 
 has to apply the Hindu Law in the case of Hindus, the 
 Mahomedan Law in the case of Mahomedans, and the 
 principles of justice, equity and good conscience which, 
 according to the majority of the English Judges who pre- 
 side over our superior courts and the English lawyers who 
 practise there, are the rules of English law with almost 
 imperceptible variations. Section 17 of 21 Geo. IIL C. 70 
 provided that "* ^ rents * ^ and all matters of contract 
 and dealing between party and party shall be determined, 
 in the case of Mahomedans, by the laws and usages of 
 Mahomedans, and in the case of Gentoos, by the laws and 
 usages of Gentoos."^ Until the passing of the Indian 
 Contract Act and the Transfer of Property Act, the 
 Supreme Court, andtthen the High Court in its Ordinary 
 Original Jurisdiction were bound to act in all cases 
 according to the direction given in the statute of 21 
 George III ; but for causes, which are not far to seek, the 
 law applied was the English law, except in rare cases. 
 In Russick Lull Mudduck v. Loke Nath Kurmokar,^ the 
 plaintiff had been ejected by a decree of the Calcutta Court 
 of Small Causes from the land held by him as a tenant 
 under the defendant, and claimed to be'allowed to pull 
 down and remove the buildings erected thereon by 
 himself or his predecessors in title, or in the alternative, 
 to be paid compensation in respect of them. Wilson J. 
 applied to the case the doctrine of Hindu law as 
 expounded in the judgment of the Full Bench in In re 
 Thakoor Chander Paramanick,^ declining to apply, as 
 amongst Hindus in Calcutta, the English maxim quic- 
 quid plantatur solo solo cedit. ~"In a later case,^ how- 
 ever, the Calcutta High Court threw considerable doubt 
 
 1 See also Letters Patent of 1865, Sec. 19. 
 * I. L. R. 5 Cal. 688. ' B. L. R. Sup Vol. 595, 
 
 ^ Juggut Mohini v. Dwarkanath I. L. R. 8 Cal. 582. See also 
 Jeshwada Bai v. Ram Chandra I.L.R. 18 Bom. ^6,
 
 36 KHAS MAHALS. 
 
 both as to what the true rule of Hindu law is and its 
 applicability to the town of Calcutta. The learned 
 judges who decided the latter case were of opinion that 
 the texts of Hindu law referred to in In re Thakoor 
 Chiinder Para^nanick did not lay down any rule as to 
 substantial structures. 
 Huts. Huts come within the definition of immovable 
 
 property. '^ In Nattu MiaJi v. Nand Rani.,'^ a Full 
 Bench of the Calcutta High Court held that they were 
 not saleable in execution of a decree of a Small Cause 
 Court, and in Kally Parsad Sing v. Hoolas Cliund,'-^ 
 the High Court, following the Full Bench decision, came 
 to the conclusion that tiled huts were not " goods and 
 chattels " and could not, therefore, be taken in execu- 
 tion of a decree of the Calcutta Court of Small 
 Causes. But the riglit of a tenant to remove tiled huts 
 built by himself was recognized, and in Parbutty Bewnh 
 V. Woonia Tara Dabec^ Macpherson J. was of opinion 
 that a tenant of land in Calcutta was entitled by custom 
 to remove huts. This was rather anomalous. The 
 legislature had to interfere, and section 28 of the 
 Presidency Small Cause Court Act" provides that huts 
 which are removable at the termination of the tenancy 
 should be deemed to be movable property. Tiled huts are 
 thus saleable in execution of decrees of the Small Cause 
 Courts at the Presidencies. 
 P •iHpn/'v The Small Cause Courts, constituted under Act XV 
 
 Small Cause yf 1882, have Other special powers in cases be- 
 tween landlord and tenant, which are not possessed 
 by similar courts in the moffusil. Rent for land is 
 recoverable by suit if the amount does not exceed the 
 Court's pecuniary jurisdiction, though such suits are not 
 cognizable by the moffusil Small Cause Courts." Suits 
 
 • Aa I. of 1868. ■' « 13. L. R. 508. 
 ■' 10 B. L. R.448. ' 14 B. L. R. 201. 
 
 • Art XV u{ 1882. " Art IX of 1R87. Schedule II. cl . (8).
 
 THE TWENTY-FOUR PRRG\N\H5. 37 
 
 for ejectment of tenants and jjersons holding land by 
 permission may, under the procedure laid down in chap- 
 ter Vn, be instituted in these Presidency Courts, pro- 
 vided the annual value of the property does not exceed 
 one thousand rupees. Distress for rent is also allowed.^ 
 
 The district now known as the Twenty-four Per- The Twenty- 
 cranahs, as it contains twenty-four perganahs or local divi- f°"''[^''- 
 
 S' ' . . ganahs. 
 
 sions, came to be held as a zemindari granted by the 
 Nawab; but except the fifty-five villages or Dihi Panchan- 
 nagram,the district of Twenty-four Perganahs was never 
 dealt with as a khds mahdl. It was, as we shall presently 
 see, permanently settled in 1793, the tract of jungle- 
 land known as the Sunderbands excepted. 
 
 Mir Kasim when made the Nawab, the feeble Mir Burdwan and 
 JafTar having been deposed, granted in 1760 the three ■^'<i"'''PO''e- 
 districts of Burdwan, Midnapur and Chittagong to the 
 Company as a cession for the support of the army ; but 
 the Company allowed the zemindars to collect the re- 
 venue as before, and these districts were permanently 
 settled along with the rest of the province ; so that 
 the districts of Twenty-four Perganahs, Burdwan 
 (which in those days included the district of Hughly), 
 Midnapur and the cultivated portions of Chittagong, 
 though acquired earlier than 1765, were considered since 
 the date of the Dewany to be covered by the Imperial 
 sanad. 
 
 The Dihi Panchannagram was acquired by the Dihi Pan- 
 Company in the year 1757 in taluqdari right, and channagram. 
 has continued to be in the direct possession of the 
 Government without the intervention of a zemindar. 
 Readers of Indian History must be familiar with the 
 facts connected with the grant of these fifty-five villages 
 by Mir Jaffdr and the pension to Lord Clive, and the 
 charge subsequently brought against him on the ground 
 of his accepting the pension. 
 
 Aa XV of 1882, ch. VIII.
 
 38 
 
 KHAS MAHALS. 
 
 Holdings 
 in Dihi Pan- 
 channagram. 
 
 The holdings in Dihi Panchannagram are not all 
 rent-paying. A good many of them are rent-free. 
 The right of the Government to these holdings and the 
 relationship between the Government and the land- 
 holders may well be expressed in the words of the 
 Judicial Committee of the Privy Council in the case 
 of Gunga Gobhid Mundal v. Tlie Collector of the 
 Twenty-four Perganahs^ Speaking of right to the land 
 in dispute in the case and the word " property " in 
 land as used by the High Court, their Lordships say : — 
 ' By the word ' property' is here evidently meant ab- 
 solute ownership, though it may be by a grant from the 
 East India Company, as the zemindars of the Twenty-four 
 Pergunnahs. The wellknown cases of Gardner v. Fell, 
 ?iwd. Free ma7i v. Fairlie [\ Moore's Ind. App. Cases, pp. 
 299 and 305), and the observations of Lord Lyndhurst 
 in the latter case on the subject of Pottahs exclude 
 any supposition that such absolute ownership of lands 
 by private persons could not exist at that time in that 
 part of India as against any claim of the Government 
 to possession of the lands. In the latter case, his 
 Lordship terms ' the rent' ' a. junima or tribute/ and 
 says, ' the Pottah, therefore, proves no part of the title, 
 it is the conveyance that gives parties a right to claim 
 the Pottah' The Pottah is evidence of title. If there 
 were anything in the nature of the title of the Govern- 
 ment to lands in the Twenty-four Pergunnahs, or any 
 usage or custom in force there, which gave a less per- 
 manent interest to the possessors of proprietary right, 
 some authority for, or some evidence of such a variation 
 from, and limitation of the general law, should have 
 been adduced to their Lordships. Their Lordships 
 themselves are aware of nothing to take these titles 
 out of the operation of the principles established by 
 the cases above referred to. ^ ^ "^ The interest of the 
 
 1 1 M. I . A. 345 sc, 7 W. R. P. C. 21 .
 
 CHINSURAH. 39 
 
 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. Though these 
 lands are treated as part of the khds-mahdls yet there 
 is no proof in this case of any relation of landlord and 
 tenant ever existing between Johnson and the Govern- 
 ment ; Johnson appears to have been the absolute 
 owner, and no reversion to have existed in the Govern- 
 ment. It is not the case of a lease at all, still less of a 
 lease of temporary duration ; it is the case of an abso- 
 lute ownership of the lands ; and the title of the Govern- 
 ment rather resembles a seignory than that of a lessor 
 with a reversion. -^ * * There is no relation of Land- 
 lord and tenant in such a case between the Govern- 
 ment and the owner of the lands, who is the landlord, 
 and not a Raiyat. The Government has a title to the 
 rent ox jiinima. By whatever name it be called, the 
 right and title is to the rent substantially ; it does 
 not include a right to the possession of the lands, 
 though such a right might arise by forfeiture, or extinc- 
 tion of the ownership." 
 
 On the 17th March 1824, the Dutch settlements lof The Dutch 
 
 sett Icinc nts , 
 
 Dacca, Fulta, Patna and Balasore and the town of 
 Chinsurah were acquired from the Dutch government. 
 They were ceded in perpetuity. By Regulation -XVIII 
 of 1825, the town of Chinsura was annexed and made 
 a part of Zillah Hughly, and the other factories were 
 annexed to the districts in which they were situated. 
 Chinsurah is also a khas mahdl. The rent of the hold- 
 ings is fixed in perpetuity, the rates fixed being those 
 which were prevalent when the Dutch acquired it from 
 the Moghul government. The Government order 
 dated the 21st August 1828 lays down, ''the sanads 
 or pottahs granted by the Dutch government should 
 be maintained, and that long possession should be 
 considered to constitute a good title." ^ The hold- 
 ings in Chinsurah are now permanent except a few
 
 40 KHAS MAHALS. 
 
 unsettled, concealed or wastelands, which however are 
 Seranipurand insignificant. Serampur and Baranagar were acquired 
 Baranagar j^.^^^ ^^^ Danish government in 184s- These are also 
 
 acquired from *=■ ^^ 
 
 the Danish khas mahdls, the holdings being generally permanent, 
 overnmen . hereditary and transferable like the holdings in Calcutta, 
 Panchannagram and Chinsurah. These holdings are 
 tenures within the meaning of Act VII (B.C.) of 1868, 
 and rent is recoverable practically as revenue under 
 the procedure laid down in that Act and Act XI. of 1859, 
 to which I shall draw your more particular attention 
 later on. Section 195 of the Bengal Tenancy Act 
 (VIII of 1885) excludes from the operation of the Act 
 the risfht of the Government to realise rent of khas 
 mahal lands under these Acts and the Public Demands 
 Recovery Act (VII of 1880). The holdings are frequently 
 subdivided and the rent apportioned, so that each of 
 these divisions may become a tenure by itself. It must 
 be remembered that these holdings or tenures are not 
 considered to be permanently settled estates, though in 
 their incidents they very much resemble such estates. 
 The property of the holders is of the same nature as 
 it is in Calcutta and Dihi Panchannagram. 
 
 The khas ma/id/s in which the Government claims 
 proprietary right, properly so called, may be divided into 
 the following classes : — 
 
 Other KhAs I. Waste lands brought under cultivation since 
 
 MahAls. j^^^^ g^^,j^ ^^ IJalabad, Noabad, Taiifir and Pntitahadi 
 
 lands, and not included in any settled estate. 
 
 II. Lands not permanently or temporarily settled, 
 including resumed rcvenue-fre(; lands, lapsed and for- 
 feited estates and isl.nul churs. 
 
 III. Temporarily settled estates including Orissa 
 and the Sunderbunds. 
 
 IV. Forest lands. 
 
 Resumption I,, the year 1819. the attention of the government 
 
 Regulations. ^^^ ^^^^^^^ ^^^ j_^^^^j^ ^^j^.^.j^ ^^^^ ^^^ included at the
 
 TAUFIR LANDS. 4» 
 
 period of the Decennial Settlement within the limits of 
 the settled estates. The tract of land known as the 
 Sunderbunds and the churs or islands formed since the 
 Decennial Settlement and other halabad (newly .culti- 
 vated) lands, p at it abnd I diVi^ jungle-buri\.a.\\JiC]s were dealt 
 with in section 3 of Regulation II. of 1819, but all waste 
 lands included within the ascertained boundaries of 
 permanently settled estates were left expressly unaffect- 
 ed by clause i, section 31 of the Regulation. There 
 were lands possessed by zemindars over and above what 
 were originally included in the settlement, and such 
 lands are called tazijir ; but nothing was definitely done 
 until the year 1828 when Regulation III of that year was 
 passed. By the rules framed under that Regulation 
 taufi}' lands were especially dealt with, and officers were 
 appointed to look after and settle them. New churs 
 and jungle lands were declared to be the absolute pro- 
 perty and at the disposal of the Government. Some 
 portions of these lands were, after settlement of rent 
 under the rules laid down by Regulation VII of 1822, 
 formed into permanently settled estates, but large tracts 
 of land newly reclaimed still continue to be Government 
 property as khds mahdls. 
 
 A large portion of the district of Chittagong was in Noabad lands 
 1793 covered with jungle, the clearances being chiefly r'l*?..^^'"'^^ '" 
 in the level plains. By the year 1764 all the occupied 
 lands had been measured, and when the Permanent 
 Settlement of 1793 was concluded, it covered only 
 the measured lands as they stood in 1764. All lands 
 cultivated subsequent to that period are locally spoken 
 of as noabad {ntwXy cultivated). Regulation III of 1828 
 declared the absolute right of the Government to these 
 noabad lands. They were assessed with revenue, and 
 as new lands were brought under cultivation, fresh 
 assessments were made. Between the years 1841 and 
 1848 all the noabad lands were surveyed, whether held 
 by squatters, or taken by encroachment by the original
 
 42 KHAS MAHALS. :._, 
 
 settlers known as tarafdars. The lands of the 
 estates formed in 1793 were defined and separated, and 
 the noabad lands were made separate taluqs ; but a 
 large number was placed directly under the Collector and 
 put under khds management. The noabad taluqdars are 
 tenure-holders entitled to retain possession on the terms 
 of their leases. The settlement made in 1848 was for 
 fifty years for lands fully cultivated, and for twenty-five 
 years for other lands. There was also in Chittagong 
 a large number of small grants called jungleburi. 
 Thus the district of Chittagong contains a very large 
 number of little estates, taluqs, and jungleburi hold- 
 ings, each with a kind of proprietary right different from 
 that of the adjoining land, and complications in cases 
 brought before courts of justice are necessarily great. 
 Old permanently settled lands, noabad taluqs, resumed 
 lakhiraj holdings assessed from time to time, and lands 
 temporarily settled are so intermixed with each other 
 that lawyers and judges feel the greatest difficulty in 
 solving intricate problems of fact and law as regards 
 them. The repeated measurements and assessments 
 made by the Government have, however, to a certain 
 extent brought things into order. The cases of raiyats 
 holding lands under tarafdars or new settlement 
 holders of noabad lands are rare. These parcels, being 
 small, are generally held and cultivated by hired 
 labourers, but where there are raiyats, the resumption 
 and settlement do not affect the right of the cultivators 
 who are protected'. 
 HUl tr«as of -pi^^ j_ii|i tj.^^.^^ ^jf Chittagong were removed from 
 
 the operation of the general Regulations by Acts 
 XXII of i.Sr,o and IV. (B. C.) of 1863. By the 
 forest laws a large part of these tracts is '* re- 
 served " forest. The chiefs of the hills paid origi- 
 nally a tribute known as kdpAs (cotton). Cultivation 
 is still shifting. Some portions are permanently settled, 
 
 ' Huro Doss v. Traheeram 6 W. R. (A61 X) . p. 15,
 
 SCHEDULED DISTRICTS. 43 
 
 but a larger portion is khds mahdl, in which settlers are 
 being gradually introduced. 
 
 The hill lands of Bhagalpur are mentioned in Regu- j^jj] j^^^^^ ^j 
 lation IX of 1825.^ This tract of country did not form Bhagalpur. 
 part of any permanently settled estate and was inhabited 
 by the aboriginal inhabitants, mostly Santhals. The ^ , , 
 
 ^ .... Santhal 
 
 Santhal Perganahs now include this tract. A part only Perganahs. 
 of the Santhal Perganahs, the plain, was permanently 
 settled, namely, the part lying by the river side near 
 Rajmahal, but the hill tracts in the interior were not 
 measured or surveyed, nor was any attempt made to 
 bring the people under regular control until the year 
 1855 when Act XXXVII was passed. As early as 1780, 
 the tract known as the Daman-i-koh was withdrawn 
 from the general settlement. But there was practi- 
 cally no settlement of any kind, the Government 
 having only a theoretical right. The paharias cultivated 
 land by the system known as "jum" or shifting cultiva- 
 tion. By Acts XXXVII of 1855 and X of 1857, the hill 
 lands of Bhagalpur and Birbhoom and the Daman-i-koh 
 were removed from the operation of the Regulations 
 and Acts then in force in the Bengal Presidency, as : 
 
 these were considered to be unsuitable to the Santhals. 
 The permanently settled estates and /rtr/;z/ taluqs were 
 not touched by those Acts, and their incidents continued 
 to be the same as before, but other portions of the 
 district, thus formed, began to be dealt with as khds 
 mahdl. Regulation III of 1872 of the Bengal Code is 
 now the Santhal Perganah Settlement Regulation. - 
 
 In the Chotanagpur Division there are large Govern- Chotanagpur 
 ment estates, and the Palamow Subdivision is a khds ^ Palamow. 
 mahdl temporarily settled. The Government, as usual 
 in all khds mahdls^ claims absolute proprietary right. 
 Lands are never sold for arrears of revenue, and all sales 
 
 ' Reg. IX of 1825, Sec. 2, cl. 3. 
 
 * Reg. Ill of 1872 ; Ram Charan Sing v. Dhaturi Sing I. L. R. 
 j8Cal. 146.
 
 .44 
 
 KHAS MAHALS. 
 
 or mortgages of land require the sanction of the Com- 
 missioner. 
 Bhutan The Bhutan Doars are parts of Jalpaiguri and 
 
 were acquired in 1870. In that year the country was 
 settled for ten years. The settlement was with the 
 occupants called jotedars. The jotes are saleable for 
 arrears of revenue. 
 Darjiling. Large tracts of land in Darjiling are dealt with 
 
 as waste land. There are settlements with jotedars 
 for terms varying from five to thirty years. The 
 clearances, however, are few. The government has 
 appropriated large tracts for cinchona cultivation. 
 Some parts are held by mahaldars who are considered 
 to be proprietors ; but they pay revenue. Some portions, 
 generally used for tea-gardens, are held in '' fee simple " 
 or as revenue-free holdings, the right of the Govern- 
 ment to rent having been sold. 
 ^^ , Angul was formerly a Tributary State. The Chief 
 
 rebelled and was deposed in 1847, and the State was 
 confiscated. The settlement is with the raiyats direct, 
 though rent is realised through village headmen, 
 j^jjy^j^ Khurda comprises nearly a half of the district of 
 
 Puri. Until 1837 it was settled mahahvari on rough 
 estimates, the persons admitted to engagement being 
 called Sarbarakars. Raiyativari s<i\.i\e:\x\Q:\\'^ was made in 
 1837. The raiyats' holdings under the recent settlement 
 for 15 years are generally small. Rent is still collected 
 through Sarbarakars. 
 The Settle- The settlement and adjustment of rent of these kJids 
 
 ment Regula- ^^^^/^^/^ vvere regulated by the procedure laid down in 
 Regulation VII of 182.?. That Regulation was passed 
 for the Ceded and Ci)n(|ii(i< d Provinces in Cuttack and 
 the Perganah of Puttaspore, but its operation was 
 extended to the other provinces of the Bengal Presi- 
 dency by Regulation IX of 1825. The main object of 
 the Regulation was " to revise, through the agency of the 
 Collectors or Settlement Ollicers, the jumma payable to 
 
 tions.
 
 SETTLEMENT RULES. 45 
 
 Government after a full enquiry into and careful 
 settlement of the rights and interests of all classes 
 connected with the land."^ The framers of the Reeula- 
 tion further declared that "a moderate assessment being 
 equally conducive to the true interests of Govern- 
 ment and to the well-being of its subjects, it is the wish 
 and the intention of Government that in revising the 
 existing settlement, the efforts of the revenue officers 
 should chiefly be directed, not to any general or exten- 
 sive enhancement of the jumma, but to the object of 
 equalizing the public burthen".- This was a very laud- 
 able desire on the part of the State, but we know how 
 the Regulation has worked. The cases of Khurda, 
 Midnapur, Chittagong and Poosa raiyats are not ex- 
 amples of moderation in the assertion of the absolute 
 proprietary right of the sovereign. 
 
 The Settlement Officer under the Regulation, who is Jummabandi. 
 either a Deputy Collector or a Sub-Deputy Collector, 
 must give notices^ to the raiyats and all persons inter- 
 ested in the settlement, and then proceed to make the 
 necessary enquiries and prepare chittaszx^^jummabayidis 
 or rent-rolls. Clause i of section ix declares 'C^& jumma- 
 bandi to be final for all practical purposes, "until dis- 
 tinctly altered after full investigation in a regular suit." 
 These chittas and jummabandis and the maps prepared 
 by settlement officers are, however, not public documents 
 within the meaning of section 74 of the Indian Evidence 
 Act (I of 1872). They are records prepared by those 
 officers in their executive capacity for the private pur- 
 poses of the Government.^ A contrary view was taken by 
 Justice L.S. Jackson in Tarn Pattar v. Avinas Chandra 
 
 ' Preamble to Reg. VII of 1822. 
 
 2 Preamble to Reg. VII of 1822. 
 
 3 Syed Shah v. Durga, 22 W. R. 455. 
 
 ■* Junmaijoy v. Dvvarka Nath I. L. R. 5 Cal. 287 ; Ramchandra v, 
 Bangsidhari I. L. R. 9. Cal. 741 ; Akshoy v. Shyama Charan I. L. R. 
 16. Cal 586 ; Kanto Prashad v. Jagat Chandra I. L. R. 23 Cal. 335.
 
 46 
 
 KHAs MAHALS. 
 
 Dutt. He said that the " act of a Deputy Collector in 
 making a settlement or enquiry, under Regulation VII of 
 1822, is that of a public officer, whether it be judicial or 
 executive, probably it partakes of both characters."^ 
 But this view was not accepted as correct in the 
 later cases. Garth C. J. went further and held that 
 maps and plans prepared by the Collector for the pur- 
 poses of settlement of rent would be no evidence" under 
 section 83 of the Act. 
 
 As regards the holder of a resumed invalid lakhiraj 
 land within a khds mahdl, the rent assessed is binding 
 
 of settlement, untd the assessment is set aside or abated.-' 1 he raiyats, 
 however, are not bound unless they assent, or the pro- 
 visions of the law as to enhancement of rent are com- 
 plied with.^ This is a necessary consequence of the 
 Government being considered as a private proprietor in 
 the districts to which the Bengal Tenancy Act applies. 
 
 In the year 1828, Regulation IV was passed for ex- 
 tendine the powers exercised by Collectors under Regula- 
 
 asseilsment! tion VII of 1 822, and for control and revision by the Board 
 of Revenue; but the requirements of the law as laid 
 down by these Regulations were never carried out satis- 
 factorily. Considerable diffiCHlty was felt in "ascertaining 
 theamount of the jumma payable by raiyats in any mahal 
 under settlement, on an ascertainment of the quantity 
 and value of actual produce, or on a comparison between 
 the cost of production and value of produce." ° The 
 principle which was laid down in the previous Regula- 
 tions, and which was then understood to be the only 
 
 ' T.ini V. Avin.TS I. \.. R. 4 Cal. 79. 
 
 ' Ramchinilrn i;. H^ingsidlMri I. I.. R. 9 Cal. 741. 
 
 ' Haraprnsad v. Sy.imapr.isn.l (•>. W. K. (Art X) 107. 
 
 ' The Nawab Nazim v. RnmlM T). W. R. (Aft X.) 5 ; D'.Silva 
 V. Rajkumar 16 W. R. 153; F^n.iyctiilla v. Nabakoomar 20 W. R. 
 207 ; I.cdli V. Doorgamonce 21 \V. R. 410; Rcaziiddin v. Mc. Alpine. 
 22 W. R. 540 ; Akshoy v. Shy.ima Charan I. I. R. iT) Cal. 586. 
 
 » Regulation IX of 1S33, Sec. 2.
 
 SETTLEMENT RULES. 47 
 
 correct theory of rent and was generally accepted by 
 European economists, was declared by this Regulation 
 to be inapplicable, as it certainly was, to the Indian 
 people.^ The principle of assessment based on cus- 
 tomary rent, if I may use that expression, was adopted. 
 This basis of calculation was the rate of the rent ac- 
 tually paid by a large class of tenants, or the rent paid 
 for land of similar description and under similar 
 circumstances in places adjacent. Rut the principle 
 was not long adhered to, and the value and capabilities 
 of land began again to be taken into consideration 
 since 1837. 
 
 The powers conferred by the Regulation Laws upon 
 settlement officers were considered insufficient, and in 
 the year 1878, an Act was passed by the Bengal Legis- ^ater Settle- 
 lature " to define and limit the powers of settlement ment Aas. 
 officers with respect to enhancement of rent.'^^ This 
 Act was, however, soon repealed, and in the following 
 year, an Act^ was passed which is still the law in all the 
 Regulation Provinces not touched upon by the Bengal 
 Tenancy Act of 1885. I shall have to deal later on 
 with the details of the system of enhancement prescribed 
 by this Act and the corresponding Acts. I may notice 
 here one peculiarity as to the power of the settlement 
 officers, namely, that \.\\& jinnmabandis prepared by them 
 are final after publication, unless contested in civil suits 
 instituted within four months,* and unless it be proved 
 by the raiyat that the enhancement was not in accord- 
 ance with the Act.^ This is a burden which it is always 
 difficult for raiyats to discharge. There is no presump- 
 tion that the rent previously paid was fair and equit- 
 able, a presumption that all civilized legislation ought 
 
 ' Reg, IX of 1833, Sec. 2. 
 
 « Aa III (B.C.) of 1878 
 
 ^ Aa Vin (B.C.) of 1879. 
 
 ' Aa VIII (B.C.) of 1879. Sec. 15. 
 
 ^ Aa VIII (B.C.) of 1879, Sees. 9 and 10.
 
 48 KHAS MAHALS. 
 
 to recognise.^ The Bengal Act of i 879 has now been 
 repealed in the Regulation Provinces, under the Lieute- 
 nant-Governor of Bengal, except Orissa.'- The Local 
 Government may, with the sanction of the Governor- 
 General in Council, extend, by notification in the offlcial 
 Bengal Ten- Gazette, the whole or any portion of the Bengal Tenancy 
 
 ancy Aa sec. ^^,. ^^ |.|^g Division of Orissa or any part thereof, and 
 ig, cl. (a). J I ' 
 
 chapter X of the Act has been extended by a notification. 
 The Settlement Regulations are, however, in force 
 throughout the territory under the Lieutenant-Governor, 
 except the Scheduled Districts as defined in Act XIV of 
 1874. Section 195 clause (a) of the Bengal Tenancy Act 
 lays down that nothing in that "Act shall affect the powers 
 and duties of Settlement Officers as defined by any law not 
 expressly repealed by the Act." Regulation VII of 1822 
 and the Regulations modifying the same have not been 
 expressly repealed by the Bengal Tenancy Act, though 
 for all practical purposes, and to avoid complexity, the 
 rules of law and procedure laid down in chapter X of that 
 Act about the record of rights and settlement of rent are 
 adopted even in the khds mahdis. In the Scheduled 
 Districts there are special laws in force for land revenue 
 administration. You will find them collected in chapter i 
 of the Settlement Manual of the Board of Revenue. 
 
 I ought here to add that by the terms of section 14 
 of Regulation VII of 1822, the assessment made by the 
 Collector and confirmed by the Board of Revenue is 
 
 Assessment final as to the amount, except as to agricultural raiyats. 
 
 final in some 'pj^g (.j^ii courts have no power to question it ; only 
 the right to assess may be questioned."* 
 
 cases. 
 
 ' Aft VIII (B.C.) of 1869, Sec. 15 ; Aft VIII of 1885, Sec. 27, 
 Sec. 104, sub-sec. 3; Issur v. Hills W. R. Sp. Vol., 131 ; on review, 
 ibid 138; and see i Hay, 350, 5C. W. R. Sp. Vol., 48; Thakurani v. 
 Biss^ssur 3 W. R. f Aft X) 29, sc. B. L. R. F. B. 202; Umakanto 7/. 
 Srikanta 21 W. R. 108; Hills 7;. Jendar i W. R, 3. 
 
 • Aa VIII of 1885 Sec. 1. 
 
 » Reg. VII of 1822. Sec. XII; Ram Chand v. Government 6 C.L.R, 
 365; Secretary 7/. Fahamidannissa I. L. R. 17 Cal. 590.
 
 ASSAM. 49 
 
 The Commissionership of Assam including Sylhet Assam, 
 is, since the year 1874, under a separate administration. 
 The whole forms a Scheduled District under Act XIV 
 of 1874, and the Statute 33 Vic. cap. 3 applies to it. 
 A part of the country, namely, the tract at the north foot 
 of the hills in Goalpara, is regarded as permanently 
 settled, but the rest is Government property. The 
 Settlement Regulations of the Bengal Code, supplemented 
 by rules framed by Government, are now in force in 
 Assam. 
 
 By the operation of the Resumption Regulations, Resumed 
 large quantities of land within the ambit of the perma- lands"^^^ 
 nently settled estates of Bengal and Behar came to be in 
 the direct possession of Government. Many of these 
 were, according to the practice and procedure that prevail- 
 ed before 1871, permanently settled; but in that year 
 certain general rules were framed by which the 
 revenue officers were required to lease them out on 
 temporary settlements. They are very seldom, if ever, 
 kept under khds mmagement. During the period 
 of settlement, these resumed lands are necessarily sub 
 jected to the laws in force wuth respect to such estates, 
 and revenue is settled under Regulations VII of 1822, 
 IX of 1825 and IX of 1833 and Act VIII (B.C.) of 1879. 
 I shall revert to this subject later on^ when I deal with 
 the Resumption Regulations. 
 
 It not unfrequently happens that there are no pur- Purchased 
 
 chasers of estates put up to for arrears of revenue. If the ^"^ escheat- 
 
 ,,,,.,. , ed estates, 
 
 gross assets of an estate are reduced by diluvion,or depop- 
 ulation on account of epidemics, famine or inundations in 
 successive years, so that there may be no purchasers, the 
 Collector is authorised to purchase on behalf of Gov- 
 ernment. In such a case the acquisition is subject to the 
 provisions of Act XI of 1859.^ Instances of escheated or 
 forfeited estates are not rare. The Khurda estates in the 
 
 ' Aa XI of 1859, Sec. 58. 
 G
 
 churs. 
 
 50 KHAS MAHAlS. 
 
 district of Puri, Angul and Banki have come into the 
 possession of Government by escheat. A few estates 
 in Behar were made khas after the Indian mutiny, but 
 most of them were re-settled permanently. 
 Island Island churs are, under Regulation XI of 1825^, the 
 
 property of Government.- Some of these have been 
 temporarily settled. Alluvial accretions to an estate 
 by the recession of the sea or of tidal navigable rivers 
 are not the property of the State. They belong to 
 the holder of the lands'^ to which the newly formed 
 lands have gradually accreted. But the Government has, 
 under Act IX of 1847, the right to assess such accreted 
 lands with additional revenue, if it be found that such 
 lands are not reformations in the site of diluviated parts 
 of settled estates, and if the holders of the estates have 
 continued to pay revenue for the same without abate- 
 ment.* Several estates have been formed on account of 
 the separate assessment of such accreted lands. They 
 are seldom, if ever, kept under khds management, as 
 under the law the Government is bound to allow the 
 holder of the adjoining estate to have the settlement. It 
 is only in cases where the holder of the estate declines to 
 accept the assessment that the land becomes khds ;^ but 
 even then the proprietor is entitled to rnalikana. 
 Rules of as- Revenue is assessed on the principles laid down in 
 
 Regulation Vll of 1822 and the Regulations and Acts 
 modifying it, and the proprietor is entitled to have 
 settlement at a jumma calculated on the gross assets, less 
 collection charges and rnalikana. Such accreted lands 
 
 sessment of 
 revenue. 
 
 ' Reg. XI of 1825, Sue. 4, cl. 3. 
 
 » Khilat V. Colleaor W. R. (1864) 73. 
 
 ' Rej,'. XI of 1825, ■'^'-'C. 4.ci. I, Potlii v. Kirti i W. R. 124; Oodit 
 V. Ramgovind 3 N.-W. P. Rep, 206; Va7.\v. Iitiliar 4 N.-\V. P. 152; 
 Lopez V. Maddan 5 R. L.R. 521 ; 13 MI. A. 467; 14 W.R. P. C, 11. 
 
 ' Aa IX of 1847, Sec. 7. 
 
 Secretary v. Fahamidannissa 1.. R. 17 1. A. 40. Sc. I. I, R. 17. 
 Cal 590. 
 
 ' Reg. VI 11. of 1893, Sec. 43.
 
 POLICY AND RULES OF SETTLEMENT. 5 r 
 
 are numbered in the revenue roll of the District as 
 separate estates.^ 
 
 The policy of Government was to settle lands Policy of 
 permanently after assessment under the Settlement ^^ emen . 
 Regulations. In fact, those Regulations were framed 
 in pursuance of that policy. Since 1861, the policy 
 of selling estates outright after settlement was also 
 adopted, a policy which may well be questioned from 
 a financial point of view. In 1871, a change was intro- 
 duced, since when temporary settlements only have 
 been allowed. But in 1875, the Government ruled that 
 there should be khds management whenever practicable, 
 if the extent of land and cultivation are sufficient to 
 support /£'/z5'//^«r/ (collection) establishment. 
 
 The settlement of land-revenue in temporarily settled Rules of 
 
 estates and khds mahdls takes place periodically. The settlement 
 
 . , . in tempora- 
 
 Government is a landlord within the meaning of the rily settled 
 
 word as used in the Bengal Tenancy Act, and though ^^'^*^^- 
 the amount payable directly to Government in the khds 
 tnahdls is rent, the paramount title of the State carry- 
 ing with it the right to receive revenue and the pro- 
 prietary right to receive rent uniting in the Govern- 
 ment, the proprietary interest merges in the paramount 
 title, and rent in such cases is called revenue. The 
 right, however, to settle the revenue is regulated, in the 
 districts to which the Bengal Tenancy Act applies, by 
 the procedure laid down in chapter X of the Act and 
 the rules framed by the Local Government, and no fresh 
 settlement of revenue can be undertaken until the lapse 
 of fifteen years, though there may be decennial surveys 
 under Act IX of 1847. In the temporarily settled estates 
 the same rules are applicable. The Settlement Officer as- 
 certains the amount justly payable or is actually paid by 
 the raiyats which is ordinarily called renfy and after such 
 assessment, deduction is made for collection charges 
 
 ' Aa XXXI of 1858.
 
 52 KHAS MAHALS. 
 
 and malikana where this is payable, and temporary 
 settlement is then made with the person who be- 
 comes the proprietor or landlord for the period during 
 which the settlement may last. 
 Orissa. Settlement operations are now going on in the 
 
 province of Orissa which contains the largest number 
 of temporarily settled estates. Although Regulations 
 VII of 1822, IX of 1825 and IX of i 833 and Act VIII 
 (B. C.) of 1879 apply with full force in this province, the 
 procedure for fresh settlement adopted is that laid down 
 by chapter X of the Bengal Tenancy Act and the rules 
 framed under section i8g of the Act. I propose to deal 
 with this province later on. 
 Sunderbuns. In the beginning of this century, the large tract of 
 
 deltaic land known as the Sunderbuns and covered with 
 dense forest was not included within the permanently 
 settled area of the districts of Twenty-four Perganahs 
 and Jessore. But squatting and encroachment by 
 holders of adjacent permanently settled estates were 
 common, even in those early days. The zemindars of 
 Taki in the Twenty-four Perganahs were the most pro- 
 minent in this practice of encroachment. In the year 
 1 816, the Government thought it necessary to appoint 
 a special officer called the Commissioner of the Sunder- 
 bunds for the fiscal management of this tra6l.^ Seflion 3 
 of Regulation II of 18 19, wellknown as the Resump- 
 tion Regulation, expressly referred to this forest tract, - 
 and in 1825, the settlement rules laid down in Regulation 
 VII of 1822 were made applicable to it.'' Up to this time, 
 however, the attention of Governmc lU was directed only 
 to the cleared and occupied portions which were encroach- 
 ments ?lx\(\ which were technically taufir. But in 1828, 
 rules were laid down for the determination of the 
 boundaries of the tract which was formally declared' to 
 be the " property of the State, the same not having been 
 
 ' Reg. IX of 1816, » Reg. II of 1819, Sec. 3. cl. 3. 
 
 ' Reg. IX of 1825, Soc. 2, cl. 3. ' Rci;. IX of 1828, Sec. 13, cl. 2.
 
 THE SUNDERBUNS. 53 
 
 alienated or assigned to zemindars." The Governor- 
 General in Council was declared competent to "make 
 grants, assignments and leases of any part of \t."^ The 
 claims of persons in possession of cultivated lands in the 
 neiojhbourhood of settled estates were left to be deter- 
 mined under the rules laid down in Reg. II of 1819. 
 Any objection to the line of delimitation was to be 
 made within three months'- from the date of the Commis- 
 sioner's proceeding fixing the same, and on no account 
 later on. This sea-board of the delta of the Ganges 
 was defined by the boundary line laid down in 1829 by 
 Mr. W. Dampier, the then Commissioner of the Sunder- 
 buns. Captain Hodge's map is a well-known map of 
 delimitation. The cultivated portions within the line 
 were formed into permanently settled estates as " patit- 
 abadi " taluqs. 
 
 7iincrail}uri leases or leases for reclamation and culti- Settlement 
 vation of waste lands in the Sunderbuns began to be 5"^^^°^- 
 granted from time to time until the year 1845, when a buns. 
 large number of grants were made, but no definite rules 
 for grants of waste lands were framed until the year 1853. 
 The Sunderbun grants made under these rules were for 
 99 years with conditions for progressive enhancement of 
 revenue and compulsory clearance. There was liability 
 to forfeiture for non-clearance. After the lapse of 99 
 years there is to be fresh settlement of revenue. Most 
 of the important lots, thus granted, have now been cleared, 
 and many of the present holders of the grants are rich 
 land-holders. The rules of 1853 were virtually superseded 
 by those laid down in accordance with Lord Canning's 
 Minute of 1861, — the sale-rules known as the "fee- 
 simple" rules. But they proved inoperative, and a set of 
 revised lease-rules was adopted in 1879. The rent-free 
 
 ' Regulation III of 1828, Sec. 13, cl. i. 
 
 - Raja Barada or. Commissioner 12. M. I. A. 225; 2 B. L. R., P.C, 
 33; II W.R., P.C, 14.
 
 54 
 
 KHAS MAHALS. 
 
 Sunderbun 
 grants are 
 
 temporarily 
 settled es- 
 tates. 
 
 Forests, 
 
 Rules for 
 the protec- 
 tion of 
 forests. 
 
 period is, under the new rules, ten years, and there is 
 only one clearance condition, viz., that one-eighth of the 
 entire grant should be rendered fit for cultivation at 
 the end of the fifth year, the usual term of lease being 
 forty years with condition of resettlement. The tenures 
 are heritable and transferable. 
 
 The lands covered by the grants made under the old 
 or the new rules are temporarily settled estates, and they 
 come within the purview of the Regulations and Acts deal- 
 ing with them. They are saleable for arrears of revenue 
 under Act XI of 1859 and Bengal Act VII of 1868. 
 
 In the year 1865, the Government of India gave its 
 special attention to the management and preserva- 
 tion of Government forests. The rules in force at the 
 time were with modifications incorporated in Act VII of 
 that year. The importance of the preservation of forests 
 was insisted on by high authorities in India, and in 
 1878 an Act' was passed to amend the law relating 
 to them. Forest settlement officers were appointed, 
 as also forest officers for the preservation and protection 
 of forests, and provision was also made for income from 
 forest produce. The settlement officers were vested with 
 the powers of a Collector under the Land Acquisition Act 
 of 1870. Penalties were laid down for infringement 
 of the provisions of the Act and the subsidiary rules 
 that might be framed thereunder. 
 
 These important provisions for the protection of 
 forests recjuired the establishment of a special dej)art- 
 ment of olTicers. Tin- income of Government may 
 be classed mainly under three heads, viz., sale of timber, 
 the catching of wild animals, especially elephants, and 
 produce of trees such as rubber, caoutchouc, gum and 
 cocoons. The working of the Act has occasionally caused 
 hardship upon private owners of forest lands. Convic- 
 tions under the provisions of the i'orest Act are 
 
 A.'t \'II of 1S78.
 
 , JALPAI LANDS. 55 
 
 not unfrequent, and you will find in the Reports a 
 number of cases on the subject. ^ 
 
 A small quantity of land is held by Government as Acquisition 
 khds on acquisition either from settlement holders or ^ '^" ^^ 
 
 ^ (jovernment. 
 
 holders of revenue-free lands. I leave out of consi- 
 deration such lands as are still held by Government on 
 payment of" rent to zemindars. Acquisition of land 
 for public purposes was not common in the beginning 
 of the British rule. The only lands then apparently 
 used were for military purposes and for manufacture 
 of salt. The monopoly of salt-manufacture began since 
 the year 1780. Large quantities of land on the sea- 
 coast fit for the purpose were taken possession 
 of by the Salt Agents of Government in the Twenty-four 
 Perganahs, Jessore, Khulna, Chittagong, Midnapore and 
 Balasore, for which, whenever the lands were included 
 within the ambit of permanently settled estates, Govern- 
 ment paid /^//a/«r/ rent. In 1824, Regulation I was passed 
 for acquisition of lands for public purposes and the ad- 
 justment of the claims of zemindars for salt lands. This 
 Regulation continued to be in force until the year 1857, 
 when Act VI was passed, repealing it. In the mean time, 
 two Acts had been passed in 1850 — Act I, extending the 
 first seven sections of the Regulation to the town of 
 Calcutta, and Act XLII, declaring Railway to be public- 
 work within the meaning of the Regulation. Act X of 
 1870 repealed the Act of 1857, but the Act now in force 
 is Act I of 1894. Under these Acts, acquisitions made 
 by Government are free of all incumbrances. 
 
 Section 10 and the subsequent sections of Regula- jalpai land 
 tion I of 1824 deal with the right of Government 
 as regards jalpai or salt lands. The Government gave 
 up the monopoly of salt-manufacture in 1863, and such 
 portions of the lands occupied for salt purposes as 
 
 ' Deputy Commissioner iv. Notheram 21 W. R. 435 ; Queen Empress 
 V. Ramji Sdjdba Rao. I. L. R. 10 Bom. 124,
 
 5^ KHAS MAHALS. 
 
 were within the area of permanently-settled estates, 
 were assessed and settled as khds mahdls. Disputes 
 arose between Government and some of the zemin- 
 dars in the district of Midnapur, the latter claiming the 
 right to hold the lands. One of these cases was contested 
 but the Judicial Committee of the Privy Council decided 
 in favour of Government, holding that Regulation I of 
 1824 gave Government the absolute right to these lands^. 
 Road-Cess. Road-cess under Act VII 1 (B. C.) of 1880 is payable 
 
 by Government for the khds mahdls in the same way as 
 by the owner of private estates. Section 7 of the Act pro- 
 vides for payment of road-cess by the local Government, 
 the sum not exceeding what would be payable by a 
 private person. The public works cess which is a fund 
 originally levied for famine purposes, but now appro- 
 priated to imperial purposes, does not seem to be payable 
 by the local Government. 
 Public De- The Government dues in khds mahdls are generally 
 
 covery Aft. realised by the Certificate procedure laid down in the 
 Act known as the Public Demands Recovery Act, 1880.- 
 The Act has not been^found to work satisfactorily, and 
 it is expected that a new Act will be passed by the 
 local legislature early next year. The Act now in force 
 gives the Collector, or a Deputy Collector duly em- 
 powered in that behalf, power to lile a certificate'' in 
 his office, and from the date of the service of notice 
 thereof it has the effect of an attachment on the pro- 
 perties belonging to the debtors." After the expiry of 
 thirty days, and if no objection be made or if an ob- 
 jection be made and the same be disallowed," the certi- 
 ficate has the force of a decree of the Civil Court, and 
 the Collector has the right to enforce the same 
 
 ' Sccrct.iry v. Anandmoyee I. L R. 8 Cal. 95, sc. 8 Cowell's Ind. 
 App. 172. 
 
 • Aavii (B.C.) of 1880. ' Aa vni (r. c.)of 1880, Scc. 5. 
 
 * Aa Vni(B.C.)of 1880. See. 10. •• Aa VIII (B.C. )of 1880, Scc. II. 
 » Aa VIII (B C.) of 1880, Scc. 18, ly.
 
 SETTLEMENT RULES, 57 
 
 and levy the amount as a civil court. The proceed- 
 ings taken are generally loose, and the various steps 
 for bringing the debtors' properties to sale are left 
 without proper supervision to irresponsible agents. 
 Instances of gross violations of private rights by sales 
 under the Act are very frequent. I have been in- 
 formed that Government dues are not also fully realised 
 by the adoption of the Certificate Procedure. I hope 
 the amending'Act will be so framed that not only the 
 interest of Government will be duly protected, but ample 
 protection will be afforded to a poor but a large class of 
 subjects who are now frequently made to suffer from the 
 negligence and occasional stupidity of the subordinates 
 in District Collectorates. It very frequently happens 
 that the poor debtors, who cannot afford to have revenue- 
 agents at the Collectorates to watch their interests, know 
 nothing of certificates and sales of their properties under 
 the Public Demands Recovery Act, until the fortunate or 
 unfortunate purchasers, as the case may be, come to take 
 actual possession. Litigations follow to the ruin no less 
 of the purchasers than that of the debtors. The cases 
 are taken through the various stages of the tardy and 
 cumbrous procedure of civil courts. The extension of 
 the provisions of the Cess Act^ for direct realisation of 
 Government dues from the poor lakhiraj-holders has 
 been a source of unmitigated mischief in several dis- 
 tricts. The amounts realisable are small, but the means 
 adopted for their recovery are expensive and occasionally 
 bring down ruin.- 
 
 ' Aa IX (B C.) of 1880, Sec. 70. 
 
 2 Since these leftures were delivered the Bengal Legislature has 
 passed Aft I of 1895 which has materially altered the Aft of 1880. One 
 important feature of the Aft is the extension of the provisions of sec- 
 tion 310 A of the Code of Civil Procedure to certificate-sales. 
 
 H
 
 LECTURE III. 
 
 REVENUE-FREE LANDS. 
 
 Policy of the When the East India Company took formal charge 
 
 East India j ^^^ finances of the Bengal Provinces as Divvan of 
 
 Company as *=* 
 
 to lakhiraj (he Great Moghul, it was found that large quantities of 
 ^* land were in the possession of private individuals who 
 
 paid no revenue for them. Starting, as they did, with 
 the theory of the king's or the conqueror's absolute 
 dominion over the soil, the Company was not bound to 
 recognise any right that detracted from the right to 
 take possession of or assess with revenue every inch 
 of land in the country. But principles of humanity 
 prevailed, and the Government continued to the "grantees 
 or their heirs such of those grants as were hereditary 
 and were made before the date of the Company's acces- 
 sion to the Diwani, provided the grantees or their heirs 
 had obtained possession previous to that date."^ To 
 use another utterance of the framers of the Regulation 
 Code of 1793, "the lenity of the East India Company 
 induced them to adopt it as a principle, that grants made 
 previous to the date of the Diwani should be held 
 valid,"-* though there were certain necessary restrictions. 
 Origin and The origin and history of these grants made by the 
 
 history of re- previous ruling i)owers in India is a subject of some 
 
 vcniie-frce ' 1 , • 
 
 grants. int(trest. The Hindu kings, as we have seen, were en- 
 
 titled to a share of the produce of the land for the pro- 
 tection they aff()rd(;d to life, liberty and property. But the 
 
 ' Preamble to Regulation XXXVII of 1793. 
 » Preamble to Regulation XIX of 1793.
 
 Origin of revenue-free grants. ^ 
 
 great law-giver of ancient India said — " A king, even Manu. 
 though dying with want, must not receive any tax from 
 a Brahmin learned in the Vedas;" ^ and he added, — " By 
 that religious duty, which such a Brahmin performs each 
 day under the full protection of the sovereign, the life, 
 wealth and dominion of his protector shall be greatly 
 increased."- Our great poet Kalidasa in his Abhijnana- 
 Sakuntalam was referring to the utterances of Manu 
 and other sages and the universal practice of Hindu 
 kings, in the following conversation between Dushmanta 
 and Madhavya : — 
 
 '^ Madhavya. — Say, you have come for the sixth part 
 of the grain which they owe you for tribute. 
 
 " King. No, no, foolish man, these hermits pay me a 
 very different kind of tribute which I value more than 
 heaps of gold or jewels ; observe — 
 
 The tribute which my other subjects bring. 
 
 Must moulder into dust ; but holy men 
 
 Present me with a portion of the fruits 
 
 Of penitential service and prayer, 
 
 A precious and unperishable gift."^ 
 
 (Dr. M. William's Translation). 
 
 Manu, Chap. VII, v. 133. 
 
 Manu, Chap. VII. v. 136. 
 3 f^^^^ I ^ ^^fr ^^t€t g^'W T['^Vk 'ft^TT^?vn'?f ^'^TW 
 
 TT31T I «^, '^I'^tWT^^Tq^^t T^'^ f«iq<lffl qtr^TTsfr^lfq f^'?Tmf*T- 
 
 Jf^fxl^f?! ^W»^ ^qTTt '^ fI?IW^'T 1 
 
 Abhijnana-Sakuntalam, Aft II.
 
 60 REVENUE-FREE LANDS. 
 
 Vishnu. Vishnu has also said, — " A sixth part both of the virtu- 
 
 ous deeds and of the iniquitous acts committed by his sub- 
 jects goes to the king.'^^ This exemption from tax of 
 a class of men on the principles thus enunciated is an 
 instance of, what lawyers call, a legal fiction. The king 
 is supposed to be entitled to a sixth of the produce from 
 all persons in occupation of land, and the exemption of a 
 class of pious men is ascribed to a fictitious payment 
 — a payment which according to Hindu notions not 
 only counterbalanced but outweighed by far, in both 
 temporal and spiritual points of view, any benefit 
 that might be conferred by actual payment in kind 
 or specie. 
 
 Vrihaspati. '\\\\s practice of allowing pious Brahmins, learned in 
 
 the Vedas, to hold land revenue-free was soon extended 
 to Brahmins, who had a large number of disciples to 
 teach in other branches of learning, and also to other 
 religious and charitable objects. By the time that 
 Vrihaspati composed his sutras, who, according to 
 European authorities, wrote long after the days of Manu, 
 the legal fiction was lost sight of, and the sage distinctly 
 speaks of gifts of lands to pious Brahmins learned in the 
 Vedas without reference to it. The extension of the terri- 
 tories of Hindu Kings and the subjugation of aboriginal 
 tribes necessitated the immigration and settlement 
 of learned Brahmins in the newly acquired countries. 
 Vrihaspati says, ~" The king shall invite Brahmins 
 versed in the Vedas and devoted to the maintenance of 
 the sacred-fire and settle them in the newly acquired 
 
 Yajnavalkya. land and make provisions for them."'- Yajnavalkya 
 also says: — "The king shall provide a place for and 
 
 Vishnu Smriti III 28. 
 
 Vrihaspati quoted in Viramitrodaya, Jibananda Vidyasagara's Edition, 
 P 4 '3
 
 COPPER-PLATE GRANTS. 6l 
 
 settle Brahmins, versed in the three Vedas, in the town, 
 with provisions for their maintenance, charging them to 
 perform the duties of their callings."^ There are various 
 pious and religious acts which these Brahmins were ex- 
 pected to perform, and the texts of sages are many that 
 require them to perform duties which, we would say, are 
 necessary even for sanitary and agricultural purposes. 
 
 The grants made by Hindu kings were express- Sdsanas. 
 ly revenue-free. The deeds which the kings were 
 directed to execute as evidence of such grants were 
 called sdsana or rajsdsana, and were required to be, 
 if possible, on copper-plates. Vrihaspati- states in 
 detail what these copper-plate grants should con- 
 tain. Grantees were to hold in perpetuity, or to 
 use the rhetorical language of the sage, " as long 
 as the sun and the moon shine on the horizon." All 
 future kings are enjoined to respect these grants. 
 Many copper-plate grants, almost in the very langu- Copper-plate 
 age of Vrihaspati's texts with immaterial modifications, ^"^^^ ^" 
 have been recently discovered. For the purposes of 
 the present lecture, I would draw your attention to 
 only a few specimens covering lands in the Lower 
 Provinces of Bengal. The tide of Aryan migration to- 
 wards the East was rather slow. Bengal attained 
 importance as an Aryan kingdom during the reign of 
 the Pal Rajas and their successors, the well known 
 kings of the Sen family. It is said that the celebrated 
 Ballal Sen^ and his worthy descendant Lakshman Sen* 
 
 Yajnavalkya quoted in Viramitrodaya, p. 423. 
 
 Vrihaspati quoted in Viramitrodaya, 192. 
 ' 1066 to 1 107 A.D. 
 ^ 1 107 to 1129 A. D.
 
 '^2 REVENUE-FREE LANDS. 
 
 made a large number of grants in favour of learned 
 Brahmins and even of Kayasthas, who had been invited by 
 Adisur^ from the North-Western Provinces to take up 
 permanent abode in the rich and alluvial lands of the 
 Gangetic delta. Several ancient families in these pro- 
 vinces claim their descent from these settlers, whom the 
 policy or liberality of the Sen Rajas drew down from 
 the earlier habitations of our Aryan fathers, and they 
 still hold lands under grants made eight or nine cen- 
 turies ago. The copper-plates that have been discovered 
 are legal documents, complete in every respect, executed 
 apparently for pious and religious purposes. Vigraha 
 Pal was one of the Pal Rajas, and the Amgachi plate- is 
 an instance of alienation of revenue made by him. A 
 copper-plate was discovered near the Sunderbuns 
 some years ago, executed by the celebrated Raja 
 Lakshman Sen'\ Another copper-plate was discovered 
 in 1874 in the Tarpandighi in Dinajpur, also exe- 
 cuted by Lakshman Sen, by which the grantor granted 
 a share in the land of the village of Bilahisti.^ 
 A similar plate executed by Keshub Sen, son of 
 Lakshman Sen, has also been found in Perganah 
 Idiipur in Bakhergunj.^ Copper-plates have also 
 been discovered, similar in language and import, exe- 
 cuted by the Hindu Kings of Behar — the Magadha 
 and the Mithila Kings. Grants of lands revenue-free for 
 the performance and continuance of the worship of 
 Hindu Gods were also numerous. They are generally 
 in the names of the priests, the scbayets. 
 Different Grants to Brahmins are known in Bengal by the 
 
 kinds of generic name, hrainhattar, and in Bchar by the name, 
 
 gmn s. /^/-// (irf^), and lands dedicated to the gods by the name, 
 
 ' 986 to 1006 A.D. 
 
 ' Asiatic Researches, Vol. IX. p. 440. 
 
 ^ A discourse on the IJengali I.angiiage and Literature by Pundit 
 
 Ramgoty Nyayaratna. Part II p. 371. 
 * Journal of the Asiatic Society, Bengal 1875, p. i. 
 " Journal of the Asiatic Society, Bengal, Vol VII, p. 40.
 
 DIFFERENT KINDS OF REVENUE-FREE GRANTS. 63 
 
 devattar or bissenprit. These grants are known in 
 different parts of the country and, according to the 
 peculiarities of the terms and conditions, under various 
 names, some of which require specification. Mahatran 
 are revenue-free grants to persons or families other than 
 Brahmins. These latter are also numerous in Bengal 
 proper, especially in the Presidency Districts. 
 
 As I have already said, the Afgan conquest of Bengal Praaicein 
 was never complete. Many of the ancient Hindu royal '^'^^'' ^^y^- 
 families, which, according to the practice of olden days, 
 had only become tributaries or subordinates of the 
 Sen family, as the imperial power, continued to hold 
 on, after the conquest, sometimes yielding only nomi- 
 nal allegiance to the Musalman viceroys or kings, and 
 not seldom defying them. The grantees of revenue- 
 free lands in these independent or semi-independent 
 principalities remained in quiet possession, and we 
 have reason to believe that fresh grants continued to 
 be made even in the days of Afgan rule. The Great 
 Moghul could not make much impression in Bengal. 
 The same causes, which had worked in the days of India's 
 freedom from foreign yoke, impelled, with equal force, 
 the class of men latterly called zemindars^ to occasionally 
 alienate the state share of the produce of lands in 
 favour of Gods and Brahmins and the gentry in these 
 provinces. Thus large quantities of land in the 
 Bengal Provinces, especially in Bengal proper, came 
 to be lakhiraj i. e., free from khiraj or revenue, and 
 the East India Company, when they accepted the 
 Diwani from the great Moghul, had many difficult prob- 
 lems to solve with reference to them. 
 
 The doctrines of the Mahomedan faith, as much as Wuqfs. 
 the Hindu, favoured grants or appropriations for reli- 
 gious and charitable purposes. " Superstitious uses" 
 is an expression that could be applied equally to the 
 practices of almost all nations and all creeds. Religious 
 fervour existed in the Afgan and the Moghul Kings
 
 64 REVENUE-FREE LANDS. 
 
 and Emperors in a high degree. Even that extraordin- 
 ary prince Akbar Shah with his broad views, which 
 some historians have characterised as irreligious, was 
 not slow in making gifts of lands to men of great 
 merit, and for pious and charitable purposes. Instances 
 of grants by other Mahomedan potentates to Hindus 
 were not also uncommon. 
 Jaigirs. Grants to military officers and servants of the state 
 
 were called jaigirs in the days of the Mahomedan gov- 
 ernment. In the language of Regulation XXXVII of 
 1793-^) '' Jaigirs sxe to be considered as life-tenures 
 only, and with all other life-tenures are to expire with 
 the life of the grantee, unless otherwise expressed in 
 the grant." They have often been said to be life-grants. 
 Originally of a feudal character, but not hereditary, 
 they were granted on condition of service. In India, 
 however, offices frequently descend from father to son 
 and they were renewed very frequently in favour of 
 the sons of previous holders. But the terms of jaigir 
 grants were not uniform. They were occasionally given 
 to be held as hereditary and alienable grants. A jaigir 
 must be taken prima facie to be an estate for life 
 only, although it might be on such terms and condi- 
 tions as to make it hereditary.- Under British adminis- 
 tration, many jaigirs have become hereditary and 
 alienable.-' Jaigirs are said to be of two kinds — 
 conditional and unconditional. Conditional jaigirs 
 could be held as long as the grantee continued to perform 
 the service for which the revenue was alienated in 
 his favour.' Unconditional jaigirs are personal grants 
 
 ' Reg. XXXVII of 1793, Sec. 15. 
 
 -' Gulabdas v. Collcaor L. R. 6 I. A. 54, sc. I. L. R. 3 Bom. 186. 
 
 =■ Colleaor V. M.irtindcll, 2 N.-W. P. Scl. Rep. 188; Bcthal v. Laha 
 2 N.-W. P. Rep. Civ. Ap. 284 ; Nilmoni v. Bakranath L. R. 9, I. A. 104, 
 sc. 1. L. R. 9 Cal. 187 ; Dosi Bai v. Iswar I. L. R. 9 Bom. 561. 
 
 * Field's Introdiiflion to the Regulations p. 68; Tagore Lectures 
 1874-75, p. 201 ; Xilmoney v. Government 18 W. R. 321.
 
 VARIOUS KINDS OF BADSHAHI GRANTS. 
 
 65 
 
 for life.'' In Benpjal there are a i&w jaigtrs, but in Behar 
 there are a good many created by the emperor Shah 
 Alum, and they have since been treated as estates of in- 
 heritance." It should be remembered that jaigirs are 
 not grants of lands, but they merely indicate intercep- 
 tion of the khiraj . They are not strictly lakhiraj. 
 
 Milk or Milik was, in Mahomedan times, a grant MilkorMilik 
 of land, and not mer^^ly interception of the revenue. 
 The grantor was usually in occupation of the land. 
 Such grants are very common in the North-Western Pro- 
 vinces ; they are rather rare in Bengal and are general- 
 ly known by other names. They are hereditary and 
 transferable. 
 
 Regulation XXXVII of 1793 refers to altamgha, Altamgha. 
 ayma and madad?nash grants as hereditary and trans- 
 ferable by gift, sale or otherwise. 3 Hereditary altam- 
 ghas were royal grants under the Emperor's red seal, 
 and referred to revenue of land under cultivation. They 
 are now found chiefly in Behar. 
 
 Ay mas were grants made to /mams by the Aymas. 
 sovereign. In Bengal they are of two descriptions, — 
 revenne-iree (/ak/n'raj) and revenue-paying(^;;z^/^^^^r^rj)/^. 
 We shall deal with revenue-paying aymas later on, as 
 they are now regarded as revenue-paying estates. 
 Revenue-free aymas are in their incidents the same as 
 milik and madadmash. 
 
 Madadmash grants are not uncommon in Bengal. Madadmash. 
 They were made for religious purposes and, as such, 
 are inalienable.* The grants were in perpetuity. The 
 distinction between ?nadadmash and grants of a similar 
 nature known by other names is very little, except as to 
 origin and use of the lands ; but whatever the origin, the 
 Regulation of 1793 has done away with all distinctions. 
 
 ' Bukronath v. Government I. L. R. 5 Cal. 389. 
 '^ Field's IntroduiSion to the Regulations p. 68. 
 ' Reg. XXXVII of 1793, Sec. 15. 
 Jewun Doss v. Shah Kubeeroodeen 2 M. I. A. 390. 
 I
 
 66 RKVENUE-FREE LANDS. 
 
 Seyurghal. Seynrghal grants are not mentioned in the Regula- 
 
 tion, but they are found in Bengal. These were grants of 
 lands to learned men and scholars, to Madrasas or 
 colleges, or to Fakirs or saints who withdrew themselves 
 from worldly affairs. They were originally for life, but 
 when grants were made to colleges, they were neces- 
 sarily perpetual. These grants, like malcroozary aymas, 
 were not free from revenue, and one fourth of the reve- 
 nue was payable as the share of the state. 
 
 Nazarat. Nazarat lands are held for performance of services 
 
 and for other religious purposes at musjids. They were 
 granted for public purposes for the benefit of the Maho- 
 medan community. Being public endowments, they 
 are inalienable in their nature, like lands granted for 
 other charitable and religious purposes. The succession 
 is regulated according to the directions ii the grants, or 
 the custom and usage prevalent in the locality. 
 
 Revenue-free It does not appear that during the period of the 
 
 grants made m i j i. r .u o i 
 
 between 1765 Mahomedan government of the Bengal provinces, any 
 
 and 1790. serious attempt was ever made to resume revenue-free 
 
 or rent-free lands, though, as a matter of fact, they 
 were then almost as abundant as they were in the year 
 1793. After the assumption of the Diwani in 1765, 
 some fresh alienations were undoubtedly made. The 
 distressful visitation of the famine and the consequent 
 depopulation, the necessary solicitation of the zemin- 
 dars tf) have men of the higher classes as well as 
 actual cultivators to occupy and cultivate the land and 
 prevent its reverting into the state of primeval forest 
 under the tropical sun and rain, and, not unfrequent- 
 ly, the fraudulent desire on the part of some zemindars 
 to take advantage of the revolution and the disorder, 
 attending the administration by a set of handful men, 
 who wt re, from their ignorance of the people and their 
 language, merely tools'in the hands of crafty subordinates, 
 li;i<l induced alienations of land as Inkhiraj, without the 
 authority of Government The superior officers in the
 
 THE RESUMPTION REGULATION. 67 
 
 Company's service had reason to believe that land to a 
 considerable extent, held under exemption from payment 
 of Government revenue, existed in the Bengal provinces, 
 some under proper authority, but a good deal under frau- 
 dulent and forged grants. The Directors of the Company 
 wanted money. Increase of revenue was urgently needed, 
 and as a means of replenishing the exhausted cofTer, 
 plans were early adopted to check further alienations, 
 and for ascertaining the real merits of the alienations 
 already made. The first attempt was made by Warren 
 Hastings in 1782, and Regulations were passed for the 
 purpose. These were modified in the following year. 
 These rules, again, were, with certain modifications, 
 reproduced in Regulations XIX and XXXVII. But the 
 plans thus made for the increase of revenue were in- 
 effectual, and Regulation II of 1819 was passed to carry 
 out effectively the object of the Resumption Regula- 
 tions of 1793. The Regulation of 1819 is well known 
 in Bengal by the vernacular name, Doem Quanoon.^ 
 Other Regulations were subsequently passed in fur- 
 therance of the same object, and Regulations IX 
 and XIV of 1825 and III of 1828 are the most im- 
 portant of them. This last Regulation empowered 
 the appointment of special Commissioners, known 
 in Bengal as Khds Commissioners, for the trial of the 
 large number of resumption cases which were filed after 
 the passing of Regulation II of 1819. The Government 
 succeeded in resuming some lands, and the holders of 
 permanently settled estates derived additional income 
 by having occasional recourse to the resumption laws, 
 but, more frequently, to forcible ouster. 
 
 The study of the resumption laws and the numer Study of re. 
 
 ous rulings interpreting them is now of little practical sumption laws 
 
 1 now of little 
 
 utility. The legal machinery introduced by these laws, praaical ut- 
 
 with all its crushing power, has done only a small ''^^' 
 
 ' Ante p. 40
 
 6^ REVENUE-t-REE LANDS. 
 
 portion of the work, it was intended and expected to 
 achieve, but the stronger hand of time, with its rules of 
 prescription and limitation, has now almost entirely 
 quieted titles, however disputable at one time. Now 
 and then, a purchaser under a sale for arrears of re- 
 venue or rent, obtaining land free of incumbrances, 
 attempts to disturb long possession ; now and then, the 
 combination of raiyats sets up false and fraudulent 
 lakhiraj titles to defeat or delay the realisation of rent 
 by new or oppressive landlords, and, occasionally, the 
 forcible ouster of lakhiraj holders compels them to seek 
 remedy at law; but these cases are growing rarer with 
 the lapse of time. The cases that are now instituted 
 are decided more on general principles of prescription 
 and limitation than on the technical rules laid down in 
 the Bengal Regulations. But no treatise on the legal inci- 
 dents of land in Bengal should be without a few words 
 on the once important laws about resumption. Laws, 
 which cost immense sums in litigation, and procedures, 
 which brought forward immense learning and legal 
 disquisitions, are matters of study and curiosity to legal 
 antiquarians. 
 
 Scope of the Broadly speaking, the Resumption Regulations re- 
 
 Resumption c 1 . 1 i I J -iL- ti L.-I. r 
 
 Regulations. ft;rred not only to lands within the ambit of perma- 
 nently settled estates, but also to lands outside the same. 
 The latter class of lands was not dealt with by the ear- 
 lier Regulations. Regulations II of 1819, IX of 1825, 
 XIV of 1825, III of 1828 and IX of 1833^ deal with lands 
 not included within the limits of any perganah, mouzah 
 or other division of estates, already settled. They were 
 mostly waste or uncultivated lands at the time of the 
 permanent settlement.'- The proceedings, however, 
 about them were also called resumption proceedings. 
 
 ' Reg. II of 1819, Sec. 3 ; Reg. IX of 1825, Sec. 2 ; Reg. XIV of 
 1825, Sec. 3; Reg. Ill of 1828, Sec. 13. 
 ■■' Ante p. 41.
 
 BADSHAHl GRANTS. 69 
 
 At the time of the Decennial Settlement, large Grants, Bad- 
 quantities of unascertained land had been left unas- ^//„.'/^'J;. 
 sessed, though they were within the settled area. The shahi. 
 Government, at the time, classed them under two heads, 
 the one claimed to be held under Badshahi or royal 
 grants, the other non-Badshahi. Tlie rules passed on 
 the 23rd April 1788 had dealt with Badshahi grants, and 
 those passed on the ist December 1790, with the other 
 class. In the Code of 1793, passed on the 1st May of that 
 year, the distinction between the two classes of grants 
 was preserved. In the Proclamation announcing the 
 Permanent Settlement, the Governor-General in Council 
 retained the power to " impose such assessment, as he 
 might deem equitable, on all land^at present alienated 
 and paying no public revenue which had been or might 
 be proved to be held under illegal or invalid titles." 
 The Proclamation then went on to say^" the assessment 
 so imposed will belong to Government, and no proprietor 
 of land will be entitled to any part of it."^ This part of 
 the Proclamation applied to both classes of lands claimed 
 as revenue-free.^ Section 36 of Regulation VIII of 1793 
 also referred equally to both the classes.^ 
 
 Now, what are these Badshahi grants ? It would Badshahi 
 seem from the expressions, Badshahi, Altamgha, etc., ^^^^ ^' 
 used in Regulation XXXVII of 1793, that the framers 
 intended to denote by the word Badshahi, all sorts 
 of grants made or alleged to have been made by the 
 Mahomedan Emperors only. The corresponding Regula- 
 tion XIX of 1793 refers in words to " numerous grants 
 not only made by the zemindars but by officers of 
 Government appointed to the temporary superintendence 
 
 ' Reg. I of 1793. Sec. 8, cl. 3. 
 
 * Preamble to Regs. XIX and XXXVII. of 1793. 
 
 ' " The assessment is also to be fixed exclusive and inde^jendent of 
 all existing lakhiraj lands, whether exempted from the Khiraj (or public 
 revenue) with or without due authority." Reg. VIII of 1793, Sec. 36.
 
 7<5 REVENUE-FREE LANDS. 
 
 of the collection of revenue."^ The Regulation about 
 Badshahi grants does not, in words, refer to grants 
 made by the previous native governments. But it 
 was not necessary to say anything about grants made 
 by Hindu kings. Forged documents, purporting to be 
 under the authority of native governments, might be 
 produced, but Government either omitted, or did not 
 care, to legislate about them. Regulation XXXVII ^ 
 contemplated cases more of expired grants than grants 
 which might be held to be forged, altered or ante- 
 dated. All grants of lands, whether Badshahi or not, 
 made by whatever authority, for " holding land exempt 
 from the payment of any revenue previous to the I2th 
 August 1705, were declared to be valid, provided the 
 grantee or his heirs had bona fide obtained possession 
 previous to that date,"*^ and provided that the grants 
 were made in perpetuity. 
 Burden of The burden of proving the genuineness and validity 
 
 of these grants was on those who set them up, the pre- 
 sumption being that the Government was entitled to as- 
 sess every inch of land.* The burden was rather heavy, 
 and it became heavier as years elapsed. Regulation XIV 
 of 1825, therefore, enacted that uninterrupted posses- 
 sion, exempt from assessment from the date of the 
 Diwani in Bengal, Behar and Orissa, and from the i4lh 
 October 1791 in Cuttack, would be sufficient to prove valid 
 lakhiraj \\\.\t.y^ but proof of possession and the heredi- 
 tary nature of the grant (in the case of persons not the 
 original grantees) must be given by the claimant. 
 
 ' Preamble to Reg. XIX of 1793. 
 
 » Reg. XXXVII of 1793, Sec. 12. 
 
 « Reg. XIX of 1793, Sec. 2 and Reg. XXXVII of 1793, Sec. 2. 
 
 * Reg. XIV of 1825, Sec. 3, cl. 3 ; Maharajah v. Government 
 4 M. I. A. 466; Omesh v. Dukhina Sp. W. R 95; Radha 
 Krishna v. Radha Mungee 2 Sev. 366 ; Ellias v. Tithraram i W. R. 
 164 ; Koylashbashiny v. Gocoolmoni I. L. R. 8 Cal. 230. 
 
 ' Sec. 3, cl. 2, 3 ; Maharaja r. Government 4 M. I. A. 466. 
 
 proof.
 
 NON-BADSHAHI GRANTS. 7 1 
 
 No royal grants could, in the nature of things, be Regulation 
 
 made after the 12th August 176s, and no "[rantee XXXVII of 
 
 ^ 1793. 
 
 could rely upon any imperial firman made after that 
 
 date. The rules of 1793, therefore, held that, on the 
 expiry of life-grants, and on any propounded document 
 of revenue-free title being found to be forged, the 
 lands covered by them would revert to the State, 
 vvhat'^ver the quantity might be ; and on resumption, 
 expiry or escheat, they would be assessed and settled in 
 perpetuity, agreeably to the rules of settlement con- 
 tained in Regulation VIII of 1793.^ The zemindars, 
 within the ambit of whose estates the lands lay, were 
 declared entitled to settlement, as if the lands were 
 separate revenue-paying estates. ^ Any questions as to 
 the nature of the original grants, whether for life or in 
 perpetuity, were to be decided by the terms of the grants, 
 or if they were not found, according to the ancient 
 usages of the country.^ 
 
 The more important class of grants, in a lawyer's Classification 
 point of view, is the non-Badshahi. As I have already \hahi^'^^T\\^% 
 said, proprietors of settled estafo^ had no title to astoquantity 
 possession of lands covered by insyalid or expired 
 Badshahi grdiwts though lying within th'e ambit of their 
 estates and whatever the quantity migJit be. But the 
 case was different with the other class.- '-'Regulation XIX 
 of 1793 laid down different rules fo^ resumption and 
 assessment of lands according to quantities and dates 
 of grant. They were classified as,— ^'(i) exceeding one 
 hundred bighas, (2) below one hundred and exceeding 
 ten bighas, and (3) not exceeding ten bighas. 
 
 Again, for the sake of convenience, I may classify Classification 
 ,1 •.! f . .• , ...... . as to dates of 
 
 them with reference to time under the following heads : — grants. 
 
 (i) from 1 2th August 1765, the date of the Diwani, 
 
 to the I2th April 1771, the beginning of the Bengal 
 
 ' Reg. XXXVII of 1793, Sec. 6. 
 "^ Dabee v. Joy 12 W. R. 361. 
 ' Reg. XXXVII Sec. 2, cl. 3.
 
 72 REVENUE-FREE LANDS. 
 
 year 1 178 or the 26th September 1771, the beginning of 
 the Fiislee and Waliaty y^'-ar 11 79, (2) from these latter 
 dates i.e., the 12th April 1771 or the 26th September 
 1 771 to the ist December 1790, (3) the period subse- 
 quent to the 1st December 1790. 
 Grantsofland Regulation XIX declared "that all revenue-free 
 
 exceeding one gj-gnts made since the 12th August 176'^ by any other 
 
 hundred ° . . 
 
 bighas. authority than that of Government and which might 
 
 not have been confirmed by Government are invalid."^ 
 As regards grants of land, exceeding 100 bighas, whether 
 lying in one village or two or more villages and alien- 
 ated by one grant previous to the ist December 1790. 
 the Government had the right to resume and assess the 
 lands.- The proprietor of the estate within the ambit 
 of which the lands might be situated had no right to 
 the same^ ; but if the grant was posterior to the ist 
 December 1790, the date of the Decennial settlement, 
 the right to resume and assess was in the proprietors 
 of estates or dependent taluqs, and they and their 
 managers were enjoined to resume such lands.* 
 Putnidars and owners of similar permanent tenures, hold- 
 ing estates or parts of estates, being vested with the 
 right which might well be called proprietarv within the 
 meaning of section 10 (A the Regulation, had the same 
 powers as proprietors. But notwithstanding the grant 
 of a putni or any other lease in perpetuity, the proprie- 
 tor of the estate retains the power of bringing resump- 
 tion suits, as the resumption would inure to his own bene- 
 fit as well as to that of the putnidar.'^ A zemindar is not 
 
 ' Reg. XIX of 1793, Sec. 3. 
 
 ' Reg. XIX of 1793. Sec. 7. 
 
 '. Gopal V. Oodhiib, W. R. (1864) 156; Beer v. Umakant, W. R. 
 (1864) 232; Ram V. De<no 2 W. R. 279. 
 
 ^ Mahomed v. Umbica W. R. (1864) 132; Bflrbara v. Moonshee 
 Mahomed W. R. (1864) 217; see also, Raj Kishen v. Dhone Bibee 
 I Hny42i ; Aikcowree v. Mohur 2 Sev. 115; Hiirryhur?;. Abbas i R.J. 
 P. J. 23 (2 Sev. 875). 
 
 •> Okhoy V. Mahomed W. R. (1864) 212.
 
 RESUMABLE LANDS EXCEEDING ONE HUNDRED BIGHAS. 73 
 
 precluded from resuming lakhiraj land situated in a 
 dependent taluq, though such dependent taluqdar has no 
 right to resume.^ When land exceeding one hundred 
 bighas was admittedly held by a lakhiraj dar, the pre- * 
 
 sumption was that it was held under one grant, and that it 
 was resumable by Government and not by the zemindar. 
 In order to rebut the presumption, the zemindar must 
 shew that the land, though beyond one hundred bighas in 
 extent, was held under different sanads.- 
 
 If the grant of land in excess of one hundred bighas Exceeding 
 was made after the 12th August 1765, and previous to the bi'gha""'^''''^ 
 I2th April 1771 in Bengal or the 26th September 1771 
 in Beharor Orissa, the Government had only the right to 
 assess at revenue called, in v&rn3icn\aiV, 7tisf-jumma i. e., 
 equal to one-half of the produce of the land according to 
 the perganah rate, the grantee being entitled to posses- 
 sion. If any part of the land remained uncultivated, russudi 
 or progressive jumma was to be fixed. If the holder of 
 the grant agreed to pay the revenue so assessed, the 
 jumma was to be fixed for ever. The taluqs thus formed 
 were called independent taluqs. If, on the other hand, 
 the grant set up by the holder of the lakhiraj land bore a 
 date between the 12th April 1771, or the 26th September 
 as 1771, the case might be according to the Province in 
 which the land was situated, and the ist December 1790, 
 the assessment was to be made as on ordinary revenue- 
 paying lands according to the rules given in Regulation 
 VIII of I 793.'* If the settlement was accepted by the holder 
 of the land, the estate would likewise be recognised as 
 an independent taluq If, however, the grantee refused 
 to accept settlement, the land was to be held khas and 
 dealt with under the settlement rules as to khas mahals. 
 Lands held under grants made after the ist December 
 
 ' Jugunnath v. Pogose 4 W R. 43. 
 
 - Jogendro v. Hurry W. R. (1864) 145. 
 
 ' Reg. XIX of 1793, Sec. 8,cl, 3. 
 
 J
 
 74 REVENUE-FREE LANDS. 
 
 1790 were to be considered as parts of the 7nal ot rent- 
 paying lands of the holder of the estate within which 
 they might lie, and the proprietors were entitled 
 to eject the holders, whatever the quantity of land 
 might be/ 
 Exceeding Land not exceeding one hundred bighas but exceeding 
 
 but lefs ["han ten bighas, whether lying in one village or two or more 
 one hundred, villages and alienated by one grant declared invalid, 
 was to form part of the estate or dependent taluq with- 
 in the ambit of which the land was situated.- Regula- 
 tions I and VIII of 1793 had declared the right of the 
 State to all lands unassessed at the date of the De- 
 cennial Settlement, but Government thought that the 
 revenue payable by holders of permanently settled 
 estates would be better secured if the benefit derived 
 from the resumption of small lakhiraj lands were con- 
 ferred upon these proprietors^ and so it gave up in their 
 favour the right which it undoubtedly had.^ If the 
 grantee of land exempt from revenue held under a sanad 
 bea'"ing a date between the 12th August 1765 and the 
 I2th April 1771 in Bengal and the 26th September 1771 
 in Behar or Orissa, he was entitled to hold the land 
 as a dependent taluq subject to the payment of rent to 
 the proprietor of the estate, the an^ount being fixed in 
 perpetuity by the Collector acting under the revisional 
 powers of the Board of Revenue. The amount assessed 
 was to be, in such a case, nisf (one-half). * But if the sanad 
 propounded bore a date posterior to 1771 and previous to 
 the ist December 1 790, the amount of rent assessable 
 was in the discretion of the revenue-officers, the full rate 
 being generally levied. The rent of these dependent 
 taluqs was assessable under almost the same rules as those 
 for lands of which revenue was payable to Government. 
 
 ' Reg. XIX of 1793, Sees. 10 and 1 1. 
 
 '■' Reg. XIX of 1793, Sec. 6; Ram v. Deeno, 2 W. R. 279. 
 ^ Reg. XIX of 1793, Sec. 6; Reg. II of 1819, Sec. 3, cl. i. 
 * Reg. XIX of 1793, Sees. 5, 6 and 9.
 
 RESUMABLE LANDS LESS THAN TEN BIGHAS. 75 
 
 Land not exceeding ten bighas in area was not to be Not exceed- 
 
 subjected to the payment of revenue if the sanad bore a '"^ '^" 
 
 ' bighas. 
 
 date between the 12th August 1765 and the 12th April 
 
 1771 in Bengal and 26th September 1771 in Behar or 
 Orissa, provided it was found that the produce was 
 " bonafide appropriated as an endowment on temples or 
 to the maintenance of Brahmins, or other religious or 
 charitable purposes." ^ This rule was declared to extend 
 also " to all grants of land whatever, not exceeding ten 
 bighas, made previous to the Diwani, the produce of 
 which was in 1793 so appropriated." ^ Lands held under 
 grants subsequent to these dates were declared assess- 
 able in the same way as lands exceeding ten bighas. 
 
 These are the substantive provisions of the Resump- Regulation 
 tion Regulations, but legal practitioners, even in those ^'^ °^ *^^^* 
 early days when resumption cases were numerous, had 
 seldom to deal with grants made subsequent to the date 
 of the Diwani. No claimant of lakhiraj land, whatever 
 its quantity might be, would think of setting up, if 
 he was disposed to set up a false plea, a title by grant 
 posterior to that date. The only practical ques- 
 tions, therefore, that arose, related to grants, which, 
 if proved, would confer absolute proprietary right to the 
 grantees. If the grants were declared invalid under 
 section 17 of Regulation XIX of 1793, or if no grants 
 were proved, bona fide possession could be relied on as 
 evidence of title. The provisions of section 3 of 
 Regulation XIV of 1825 were applicable to all classes 
 of lakhiraj lands, and bona fide possession could be re- 
 lied on in proof of title. 
 
 The later Resumption Regulations, of which II of Jurisdiaion in 
 1819 is the most important, made no alteration in the case^^^'^" 
 substantive law as laid down in the Regulation Code of 
 1793. They modified only the procedure and established 
 special courts for adjudication of claims to hold lakhiraj 
 
 • Reg. XIX of 1793, Sec. 3, cl. 4.
 
 76 revenue-Free lands. 
 
 lands. Resumption cases were originally triable by civil 
 courts, the assessment of revenue on resumption being 
 left to the fiscal authorities. Section 30 of Regulation 
 II of 1819 gave concurrent jurisdiction to the civil courts 
 and the Collectors. On the passing of Act X of 1859^ 
 a question was raised as to whether section 28 of the 
 Act, which made a material alteration in the law of 
 landlord and tenant, took away the right of the civil 
 courts in the country to try resumption cases. In 
 Gunga Hurry Dhobey v. H. D. Tripp, ^ a Division 
 Bench of the High Court held that a suit by a land- 
 lord for resumption of land, alleged to have been set 
 up as lakhiraj since 1790, was exclusively cognizable 
 by the Collector under section 28 of Act X of 1859. 
 The question subsequently came before a Full Bench, 
 and the majority of the judges held that the Collec- 
 tor and the civil courts had concurrent jurisdiction. ^ 
 But the question ceased to be of much practical 
 importance, as Bengal Act VII of 1862 took away the 
 Collector's jurisdiction. In such of the Bengal districts 
 in which Bengal Act VIII of 1869 was in force, and on 
 its repeal. Act VIII of 1885 is now in force, the Collectors 
 have ceased to have any judicial function in rent cases 
 as well as resumption cases. 
 Grants made Questions were also raised as to the court that 
 
 subsequent ^\,q^\^ try, the procedure that should be adopted and 
 
 to Uecenniai ^ > r r 
 
 Settlement. the statements that should be made in the plaint, in cases 
 in which the allegation of the proprietor was that the 
 lakhirajdar held under a grant made subsequent to the 
 1st December 1790, or had possession only subsequent to 
 that date.^ Under Act X of 1859 tlie Collector has con- 
 current jurisdiction iinder section 28, and he has exclu- 
 
 ' Gunga V. Tripp i W. R. 31. 
 
 ^ Sonatun v. Abduol 2 W. R. 91 ; sc,. B. L. R., F. B., 109; see also 
 Mahomed 7^. I.anl Heebcc 10 W. R 103 ; Reazoonnissa v, Motee 12 W. 
 R. 135 ; Ram v. Coll.aor 22 W. R. 48 ; Sev. 704. 
 
 • Moharanee v. Chokew W. R., Sp. vol., 81
 
 LATER GRANTS. 77 
 
 sive jurisdiction in assessing rent, though he has no juris- 
 diction in cases for resumption of lands held under grants 
 made previous to the ist December 1790/ 
 
 If the grant is made by the proprietor of an Who may 
 estate, it is binding upon him, his heirs, represen- '''^^"'"^* 
 tatives and assigns, notwithstanding the declarations 
 in the Regulations as to the invalidity of all rent- 
 free grants.'^ A purchaser in execution of a civil 
 court decree, a putnidar, or holder of any perma- 
 nent tenure made since 1790, is a representative 
 of the proprietor, and he is equally bound by such 
 grants.^ But the invalidity of such a grant is a 
 good plea, if set up by Government, in case it happens 
 to come into possession under a title paramount or 
 on a sale for arrears of revenue, or if it is set up 
 by persons v^'ho may claim under Government or 
 under a sale for arrears of an entire estate. The 
 Government or such a purchaser is entitled to the 
 right as granted by Government on the date of the Per- 
 manent Settlement*. 
 
 Grants of land made since 1790 are really rent- Distinaion 
 free, and the lands are not revenue-free. The dis- between rent. 
 
 ' free and rev- 
 
 tinction between revenue-free and rent-free grants enue-free 
 
 1 H 
 
 is commonly lost sight of, the vernacular words 
 niskar or lakhiraj being equally applicable to both 
 classes and used indiscriminately. The Bengal Ten- 
 ancy Act of 1885 has defined the words tenant and 
 rent, and they include cases in which grantees of land 
 situated within the ambit of an estate hold under 
 grants made by a proprietor subsequent to the Perma- 
 
 ' Mooroobbee v. Latoo W. R., Sp. vol., 70 ; 2 Hay 437. 
 
 ' Mahomed 1/. Asadun-nissa 9 W. R , (F. B.) i, contra Peezeerooddeen 
 7>. Modhoosoodun 2 W.R. (F B.) 15; Judoor. Bonom^Iee 2 W.R. 295. 
 
 ^ Mahomed 7' Asadun-nissi 9 W. R. ( F. B.) i; Dabee 71. Joy 12 
 W. R 361 ; contra, Chunder v. Bunko 3 W. R. 177. 
 
 ^AaXI ot 1859, Sec. 37; Koylasht*. Gocool I.L.R. 8 Cal. 230, .sc, 
 10 C.L.R. 41 •, Dabee v. Fuqueer W. R. (1864) 293; Nobo v. Maharanee 
 5 W. R. 191 ; Mahomed v. Asadun-nissa 9 W. R. (F. B.) i.
 
 78 REVENUE-FREE LANDS. 
 
 nent Settlement.' The grantee or his heirs would be 
 bound to pay, but for the contract or grant, rent, as hold- 
 ing under permission of the proprietor, for the use and 
 occupation of the land. The relationship between the 
 grantor and the grantee is thus really that of landlord 
 and tenant.* Such lakhiraj holdings are rent-free lands 
 and not revenue-free, and they are resumable by a 
 purchaser on a sale of an estate or tenure free of incum- 
 brances.^ 
 ^'T''''*^^? V Section 28 of Act X of 1859 repealed, as we have seen, 
 
 under Act X . .j j i i i 
 
 of 1859. section 10 of Regulation XIX of 1793 and the correspond- 
 
 ing sections of the other Resumption Regulations, and 
 laid down ; " Any proprietor or farmer who may desire 
 to assess any such land or dispossess any such grantee, 
 shall make an application to the Collector, and such 
 application shall be dealt with as a suit under the 
 Act."* The limitation prescribed was twelve years' from 
 the accrual of the cause of action, but if the twelve 
 years had already elapsed, the suit might be brought 
 within two years from the date of the passing of the Act." 
 Clause 14 of section i of the Limitation Act (XIV of 1859), 
 also prescribed twelve years as the period of limitation. '^ 
 
 Limitation The Limitation Act of iSyi^ re-enacted the same 
 
 under later rule, with a proviso that no such suit should be maintained, 
 A(5ts 
 
 where the land formed part of a permanently settled 
 
 ' Aa VIII of 1885, Sec. 3, cIs. 3 and 5. 
 
 » Gokhul V. Govind I. L. R. 17 Cal. 721. See also I.L.R. 2i Cal. 38. 
 ' Dabee v. Fuqueer W. R. (1864) 293 ; Nobo v. Maharanee 5 W. R. 
 191 ; Bhola v. Uma I. L. R. 14 Cal. 440. 
 
 * See 2 R. J. P. J. 146 ; Aa X of 1859, Sec, 28. 
 ' Sonatun v. Abdool 2 W. R. (F. B.^ 205. 
 
 • Aa X of 1859, Sec. 28. 
 
 ' Busseerooddeen v. Shibpersid W. R. (1864) 170; Rajah v. 
 Sookmoy i W. R. 29; Janokee t;. Nobin 2 W. R. (Aa X) 33 ; Khelat v. 
 Poorno 2 W. R. 258; Krishto w. Joy 3 W. R. 33 ; Dhunput v. Boojah 
 4 W.R. 53 ; J.imes v. Khusroo 7 W. R. 531 ; Gunga v. Huree 15 
 W. R. 436 ; see also L. R. 159. 
 
 » Aa IX of 1871, Sch. II, Art. 130 ; and see 3 R. J. P. J. 27 and 
 Sev. 561.
 
 LIMITATION. 79 
 
 estate and was held rent free from the time of the Per- 
 manent Settlement. This proviso, however, was unneces- 
 sary, the sections dealing with the right of auction- 
 purchasers on revenue-sales of entire estates having 
 laid down the same rule/ The proviso to "art. 130 
 was accordingly repealed, when Act XV of 1877 was 
 passed." The result seems to be that no title to lakh- 
 iraj land created before the ist May 1793, the date 
 of the Permanent Settlement, can now be disturbed.^ 
 The period of limitation for suits by Government* is 
 sixty years, but in other respects, the same law applies. 
 Purchases made by Government under Act XI of 1859 
 are subject to the provisions of that Act.^ It has been 
 held that lakhiraj tenures are incumbrances within the 
 meaning of the Sale Laws, and they can be avoided only 
 if they have come into existence since the Permanent 
 Settlement. « I presume there can now be no cases 
 of resumption of revenue-free lands, as they are, by 
 lapse of time, sufficiently protected. 
 
 It is necessary to say a few words on the registers of Registers of 
 revenue-free lands. From the time that the attention of ^ ^^"^^ ^" ' 
 Government was drawn to, what was supposed to be, im- 
 proper and unauthorised alienations of the share of the 
 State in the produce of lands claimed as lakhiraj , and 
 the separate department of Government office, known as 
 the baze-semindufier, was established, the importance 
 of keeping registers was felt. Regulations XIX and 
 XXXVII*' of 1793 laid down definite rules for the purpose 
 and declared that grantees of lakhiraj lands, badshahi 
 or otherwise, should, within one year of the issuing of 
 
 ' Aa XI of 1859, Sec. 37 ; Aa VII (B. C.) of 1868, Sec. 12. 
 
 2 Aa XV of 1877, Sch. 21, Art. 130 ; Bir v. Raj I. L. R. 16 Cal. 449. 
 
 8 Aa XV of 1877, Sch. II, Art. 149. 
 
 ♦ Aa XI of 1859, Sec. 58. 
 
 * Koylasbashiny v. Gocool Moni, I. L. R. 8 Cal. 230. 
 
 8 Reg. XIX of 1793, Sees. 11 to 34; Reg. XXXVII of 1793, Sees. 
 16 to 41.
 
 8o 
 
 REVENUE-FREE LANDS. 
 
 notifications inviting registration,^ put forward their 
 claims in written applications. The Collectors of dis- 
 tricts were, however, busy with other important matters, 
 and notifications inviting claims were not issued in 
 most districts, and even where notices were issued the 
 registers were not duly kept. Regulation VIII of 1800 
 was, accordingly, passed, and it made stringent provi- 
 sions for the issuing of the notifications prescribed by it.^ 
 The Collectors issued notifications under Regulation 
 VIII, and in some of the districts numerous applications 
 were filed and registers of claims were prepared. The 
 entries of claims are known as taidads, and those of 
 t8o2 a. D. (1209 B. S.), are well known. Copies of 
 these entries in the registers kept under Regulation VIII. 
 are often put in as evidence of lakhiraj title, and, I 
 believe, they are almost always admitted.^ But I doubt 
 whether section 13 of the Evidence Act can be invoked 
 as giving these taidads any evidentiary value. It should 
 also be remembered that the registers themselves have 
 seldom been kept in the strict way prescribed by the 
 Regulation. Registers of valid lakhiraj lands, admitted 
 as such after regular judicial enquiry, were used to be 
 kept in the CoUectorates and were called C registers. 
 The Land Under Act VII of 1876 of the Bengal Legislative 
 
 Registration Council, known as the Land Registration Act, provision 
 is made for special registers of revenue-free lands. 
 Register (B) is the general register of revenue-free 
 lands and part l* contains entries of all lands exempt 
 from revenue in perpetuity held under badshahi, 
 hiikami and other lakhiraj grants which have been 
 declared to be valid by competent authority" according 
 to the Regulations. Of the intermediate registers, part II 
 
 ' Reg. XIX of 1793, Sec. 24 ; Reg. XXXVII of 1793, Sec. 19. 
 ^ Reg. VIII of 1800, Sec. 19. 
 
 ' Omcsli V. Dukhina, W R., Sp., vol., 95 ; and see Sev. 733. 
 « Aa VII (B. C.) of 1876, Sec. 4. 
 " Aa VII (B. C.)of 1876, Sec. 9.
 
 LAND REGISTRATION ACT. -8l 
 
 refers to revenue-free lands.' The Land Registration 
 Act has made registration compulsory,^ and every pro- 
 prietor, common manager appointed under the Bengal 
 Tenancy Act, or mortgagee in possession must register 
 his name within six months.^ Sections 78 and 79 of the 
 Act afford indemnity to raiyats paying rent to the 
 registered owner, manager, or mortgagee in possession, 
 and take away from the unregistered owner the right 
 of suing for rent, though the mere registration of name 
 does not entitle the person, whose name has been regis- 
 tered, to get decrees for rent against tenants without 
 any other evidence of title.* But the Bengal Tenancy 
 Act includes these revenue-free lands in the definition 
 of estate, and the owners thereof come within the 
 definition of proprietors,^ and section 60 of the Act 
 entitles the registered owner to a decree for rent with- 
 out any other proof of title. The Land Registration 
 Act does not, however, deal with lands which have not 
 been admitted to be revenue-free by proceedings under 
 the Resumption Laws. Registration of the name of the 
 proprietor being compulsory, and no one being bound 
 to pay rent to any person claiming such rent as pro- 
 prietor unless his name is registered, it has been held that 
 no suit for rent can be maintained, unless the claimant's 
 name be on the register under the Act at the date of 
 suit.^ Such a rule obviously causes injustice in a great 
 many cases, as the rules of limitation may bar claims be- 
 fore the claimant can obtain a decree for registration.* 
 
 ' Aa VII (B. C.) of 1876, Sec. 17. ^ Aa VII (B. C.) of 1876, Sec. 38. 
 
 ' Aa VII (B. C.) of 1876, Sec. 42. As to common manager, see 
 Maqbul v. Girish, I. L. R. 22 Cal. 634. 
 
 ■• Ramkristo v. Sheikh Harain, I. L. R. 9 Cal. 517, sc, 12 C. L. R. 141. 
 
 « Aa VIII (B. C.)of 1885, Sec. 3. 
 
 "_ Surya v. Hemant, I. L. R 16 Cal. 706 ; Dhoronidhur v. Wajid- 
 unnissa, I. L. R. 16 Cal. 708. 
 
 * In Alimuddin Khan v. Hira Lai Sen and others (I.L.R. 23 Cal. 87) 
 the majority of the Full Bench have held that the produaion of the cer- 
 tificate of registration, when the suit comes on for trial, is sufficient. 
 Such a rule will abate the rigour of the law. 
 
 K
 
 B2 
 
 REVENUE-FREE LANDS. 
 
 Redeemed 
 lands. 
 
 The Cess Aft. 
 
 The Dawk 
 Cess Aft. 
 
 Estates Par- 
 tition Aft. 
 
 There is another class of revenue-free lands which 
 comes within these rules laid down in the Registration 
 and Tenancy Acts, namely, lands of which Government 
 has, in consideration of the payment of a capitalised sum, 
 granted proprietary title free in perpetuity from any 
 demand of land-revenue. 
 
 The Bengal Cess Act of 1880 has also included within 
 the definition of *' estate"^ the revenue-free lands enter- 
 ed in Register B, part I. of the Land Registration Act, 
 and the rights and liabilities of the owners of these lands 
 under the Cess Act are the same as those of revenue-pay- 
 ing estates.- The annual amount of road cess and pub- 
 lic works cess is calculated upon the annual value, but no 
 deduction is, of course, allowed as in the case of revenue- 
 paying estates. 3 The amount is payable in two equal 
 instalments, or in one annual payment, on such day or 
 days as the Local Government may appoint.* The amount 
 is recoverable under the Public Demands Recovery Act. 
 
 The Dawk cess under Bengal Act VIII of 1862 is not 
 payable by holders of revenue-free estates. It was 
 apparently an oversight. But the tax itself, under the 
 present state of things, ought not to be levied, and the 
 Act ought to be repealed. 
 
 Revenue-free lands are, generally speaking, heritable, 
 partible and alienable as estates^ except lands dedicated 
 to pious and charitable purposes, as to which the law is 
 somewhat complicated. But they are not partible by the 
 Collector under the Estates Partition Act of 1876. The 
 definition of estate in that Act does not include revenue- 
 free lands." The partition of such lands must be made 
 by civil courts," though the principles^ of partition may 
 well be taken from the Estates Partition Act. 
 
 ' Aft IX (B. C.) of 1880, Sec.3. • Gopal v. Adhiraj, I.L.R. lo Cal. 743. 
 
 ■■' Aft IX (B.C.) of 1880, Sec. 41. ' Aft IX (B. C.) of 1880, Sec. 42. 
 
 > Aft VIII (B.C.) of 1876, Sec. 4. 
 
 " Fattch V. Janki, 4. B. L. R. App. 55, sc, 13 W. R. 74. 
 
 ' Janokee v. Luchmun, 17 W. R. 137.
 
 ONUS t'ROBANtJl. 83 
 
 Subletting of lakhiraj lands is common, but the pro Putni Sale 
 visions of the Putni Sale Law (Regulation VIII of 1819) ^^'^• 
 are not applicable to permanent tenures created by 
 holders of revenue-free lands. In fact, such subordinate 
 tenures go by other vernacular names, such as istemrari, 
 mukurrari maurusi &'c. 
 
 The /^.^/i/r^y lands, which, at the present day, become Onus pro- 
 the subject of resumption-suits in the Bengal Provinces, bandi. 
 are lands alleged to be held without any title from a time 
 posterior to the Permanent Settlement, or held under 
 grants made after the Permanent Settlement by holders 
 of estates or permanent tenures. We have already seen 
 that the grantors, their heirs or assigns are bound by the 
 terms of the grants.^ In cases of adverse possession as 
 lakhiraj (without payment of rent), the rules of limitation 
 are strong barriers to claims at the present day .2 If the 
 suit is for possession by the proprietor of an estate or a 
 tenure-holder, on the allegation that the land claimed as 
 lakhiraj is not really so, but is a part of the 7nal or khiraji 
 lands of the estate or tenure, it is for the plaintiff to make 
 out a prima facie case that, at any time since the Perma- 
 nent Settlement, the land was dealt with as mal, and the 
 holder of the land or some predecessor of his paid rent 
 for it. 3 If the plaintiff is not a purchaser entitled to set 
 
 » Mutty v. Deshkar, 9 W. R. (F. B.) i ; Dabee v. Joy, 12 W. R. 361 ; 
 and see Chunder v. Bunko, 3 W. R. 177. 
 
 * Rungloll V. Musst. Bhoneshur, 1 W. R 109 ; Mahomed Askurw. Ma- 
 homed Wasuck, 22 W. R.413; Shaikh Ghogoolee v. Shaikh Muzhur, 24 
 W R. 389; Erfanoonnissa v. Pearee, 25 W. R. 209; Abhoy 7;. Kally, I.L.R. 
 
 5 Cal. 949, sc, 6 C. L. R. 260 ; Sunduri v. Mudhoo, I. L. R. 14 Cal. 592. 
 
 * Colleftor V. Ganga, 2 Hay 33 ; Tarini v. Kali, 2 Hay 90, sc, Mar- 
 shall 215; Kedar i;. Unnada, i W. R. 25 ; Ellias v. Tethraram, i W. R. 
 164 ; Ram v. Deeno, 2 W. R. 279 ; Beharee v. Kalee, 8 W. R. 451 ; Ram 
 V. Bistoo, IS W. R. 299 ; Nobo v. Koylash, 20 W. R.4S9. sc, 14 M. I. A. 
 152, 8 B. L. R. 566; Mahomed v. Reily, 24 W. R. 447 ; Erfanoonnissa 
 V. Pearee, 25 W. R. 209, sc, I. L. R. i Cal. 378: Newaj v. Kali, I.L.R. 
 
 6 Cal. 543; Akbar v. Bhyea, I.L.R. 6 Cal. fidd.sc, 7 C.L.R. 497 ; 
 Bacharam v. Piary, I. L. R. 9 Cal. 813, sc, la C. L, R. 475 ; Narendra 
 V. Bishun, I. L. R. 12 Cal. 182.
 
 ^4 reVenue-free lands. 
 
 aside all incumbrances created since the settlement 
 under which he holds, proof of receipt of rent or pos- 
 session within twelve years of the suit must be proved, 
 to remove the bar of limitation. In the case of a pur- 
 chaser of an entire estate under Act XI of 1859 ^^ 
 of a tenure under Act VII (B. C.) of 1868 desir- 
 ing to exercise the powers conferred either by section 
 37 of the former Act or section 12 of the latter Act, 
 or in the case of a purchaser of a putni on a sale under 
 Regulation VIII of 1819, or of any tenure or under- 
 tenure sold for its own arrears under the Tenancy Act 
 and entitled to hold land free of incumbrances created 
 by the defaulter, the suit must be brought within twelve 
 years of the comfirmation of sale.^ But even in the 
 latter case, the suit being within time, the burden of 
 making out a prima facie title to eject a defendant 
 who claims the land as lalchiraj is upon the plaintiff.^ 
 The presumption which the Regulation Laws allowed to 
 be made in favour of the proprietors cannot now be invok- 
 ed. In the language of their Lordships of the Judicial 
 Committee of the Privy Council in the case of Hariliar 
 Mukhopadhyayav. Madhav Chandra Babii,''^ — " It lies 
 upon the plaintiff to prove 3. prima facte case. His case is 
 that his mal land has, since 1790, been converted into 
 lakhiraj . He is surely bound to give some evidence that 
 his land was once mal. He may do it by proving pay- 
 ment of rent at some time since 1790, or by documentary 
 or other proof that the land in question formed part of 
 the mal assets of the Decennial Settlement of the estate. 
 His pritna facie case once proved, the burthen of proof 
 
 _^ . • ■* 
 
 ' A£l XV of 1877, Sch. ii., Art 121. Sheikh Busseerooddeen v. Shib- 
 persad, W. R. (1864) 170 ; Giinga v. Huree, 15 W. R. 436; Musst. 
 Bunnoo v. Ameerooddeen, 23W. R. 24. 
 
 ' Forbes v. Sheikh, 3 W. R. 9 ; Bissambhur v. Koyiash, 23 W. R. 
 388. But see Sham 2/. Sikunder, 3 W. R. 182. 
 
 » Harihar v. Madhab, 8 B. L. R. 566, sc, 14. M. I. A. 152, and 30 
 \V. R. 459-
 
 ONUS PROBANDl. ^5 
 
 is shifted on the defendant, who must make out that 
 his tenure existed before December 1790." The pre- 
 sumption arising from long and uninterrupted pos- 
 session amply rebuts any presumption of the land being 
 maL arisinof from its beinor situated within the ambit of 
 an estate. The rule thus laid down by the Privy 
 Council has been followed in the case of auction-pur- 
 chasers in Erfanoonissa v. Pearee Mohun Mookerjee,'^ in 
 which Justice Mitter is reported to have said— "The pre- 
 sumption that every bigha of land within the ambit of 
 his (the auction-purchaser's) estate was liable to be 
 assessed with Government revenue is not sufficient 
 to start a case for the plaintiff in a suit of the present 
 description, because there is no presumption that 
 every bigha of land within the ambit of an estate 
 must be deemed to have been assessed with revenue 
 until the contrary is proved.''- But circumstances may 
 exist, in particular cases, where the plaintiff may be ex- 
 cused from giving prima facie evidence of the land 
 being mal or rent-paying,-^ A purchaser at an auction- 
 sale for arrears, entitled to hold land free of incum- 
 brances, may have to sue the defaulter himself, who may 
 claim the right to hold land as lakhiraj, as distinct from 
 the land of which he has been just deprived possession 
 by sale. In such cases, it is the obvious duty of the 
 defaulter to shew that his possession as the holder of 
 lakhiraj land was based upon title distinct from that to 
 hold as 7nal.^ In Newaj Bundopadhya v. Kali Pro- 
 sonno Ghose,^ Garth C. J. and Field J. held that, in a suit 
 for enhancement of rent where the tenant pleaded that 
 
 ' I. L. R. I Cal. 378, sc, 25 W. R. 209. 
 
 ^ See. Nobo v. Koylash,20 W.R. 459 ; Bishnathf. Radha,2oW.R.465 ; 
 see also Bacharam Mundul'z;. Peary Mohun Banerjee, I. L.R. 9 Cal.813, 
 sc, 12 C. L. R. 475. 
 
 » Bishnath v. Radha, 2 W. R. 465 ; Beer -v. Ram, 8 W. R 209 ; 
 Dewan v. Mothoora, 14 W.R. 226 ; Goonomonee v. Rajah, 18 W.R. 119 ; 
 Khorshed v. Baboo, 20 W. R. 457. 
 
 * Ram V. Veryag, 25 W. R. 534. ^ I. L. R. 6 Cal. 543.
 
 d6 
 
 REVENUE-FREE LANDS. 
 
 a portion of the land, rent of which was sought to be en- 
 hanced, was held by him as rent-free, the onus was on the 
 tenant to make out 2i prima facie case that such portion 
 of the land was so held by him as distinct from 7ndl 
 lands. In Akbur Ali v. Bhyea Lai Jha^ also, the same 
 judges held that where the defendants admittedly held 
 certain lands within the plaintiff's zemindari, some at 
 least of which w-ere rent paying, the defendants, if 
 desirous of proving that any of these lands was rent- 
 free, were bound to give some prijna facie evidence of 
 this fact before they could call upon the plaintiff, the 
 zemindar, to prove that the whole or any part of the 
 lands was nial. But in two later cases, Bacharam 
 Mundul V. Peary Mohun Banerj'ee" and Narendra 
 Narain Rai v. Bishiin Chundra Das,^ the High Court 
 doubted and distinguished the above rulings. 
 Weight of Questions about o?ius prjbandi can only arise in 
 
 evidence, determining which of the parties to a suit ought to begin, 
 
 and which party should fail, if no evidence be given by 
 either party. Evidence is, in the large majority of civil 
 cases, adduced on both sides, and it is desirable that the 
 conclusions of jud'ges should depend upon findings based 
 upon weight of evidence.* Though the burden of proof in 
 any suit in ejectment, on the ground that the land in suit 
 in the possession of the defendant as rent-free was, since 
 the year 1790, apart of the 7na/goo2ari lands of an estate, 
 is generally on the plaintiff, but to say that the plaintiff 
 must discharge the burden by the best and the most 
 satisfactory evidence, and that the defendant need not 
 adduce any evidence until the plaintiff has strictly made 
 out his case, is giving the rules about the burden of proof 
 an importance which they do not deserve. Undue weight 
 to technical rules frequently leads to failure of justice. 
 Scanty evidence on one side may be quite sufficient, if 
 there is no evidence on the other side to rebut it. 
 
 ' I.L.R. 6 Cal. 666. M.L.R. 9 Cal. 813. « I.L.R. la Cal. 182.
 
 LECTURE IV. 
 
 ' •fcrv^JVTTN.^ 
 
 PERMANENTLY SETTLED ESTATES. 
 
 The history of the Permanent Settlement ot Beiigal, 
 Behar and Orissa, and of the origin and gradual rise of asTop^Jpriety 
 
 the class which was benefited or ruined by it, has been of the Per- 
 
 ,11 1 1 • 1 1 •!• manent Settle- 
 
 repeatedly told by men whose learning and ability com- ment. 
 
 mand the highest respect. The discussions about the 
 propriety or impropriety of the act by which Marquis 
 Cornwallis, the then Governor-General, declared, with 
 the approbation of the Court of Directors for the affairs 
 of the East India Company, the Decennial Settlement 
 to be permanent and unalterable, cover volumes ; and 
 nothing more remains to be said even on a matter of 
 so vast an importance and of so great an historical 
 value. The introduction of the Permanent Settlement 
 by that nobleman whose moderation, love of justice and 
 hum.anity no one ever doubted, and which indeed the 
 very code of 1793 displays in almost every part of it, 
 has been repeatedly made the subject of rancorous 
 debates and bitter controversies, both sides being par- 
 tially right and partially wrong. The zemindars were 
 said to have been tax-gatherers and servants of the 
 State, paying into the exchequer amounts fluctuating, 
 arbitrary and unequal. They were, on the other hand, 
 said to be hereditary landlords, having proprietary right 
 like the feudal lords of European countries. When the 
 government of Mr. Hastings attempted to ignore their 
 right, made temporary settlements of land-revenue,
 
 88 
 
 PERMANENTLY SETTLED ESTATES. 
 
 The necessity 
 of the meas- 
 ure. 
 
 appointed managers of their estates, and ousted many 
 of them, they complained loudly, and their complaint 
 reached the House of Commons. Statute 24 Geo. Ill 
 cap. 25, known as Pitt's India Act, was passed in 1784, 
 the 39th section of which required the Court of Directors 
 " to give orders for settling and establishing, upon prin- 
 ciples of moderation and justice, according to the laws 
 and constitution of India, the permanent rules by which 
 the tributes, rents, and services of the rajahs, zemindars, 
 polygars, taluqdars and other native landholders should 
 be in future rendered and paid to the United Company. " 
 The claim of the zemindars to proprietary right was 
 asserted, and denied, and discussed hotly even in those 
 early days of the Company's government, and you will 
 find the latest dissertation on the subject in Sir Wdliam 
 Hunter's Bengal M.S. Records published this year. 
 
 The policy of Lord Cornwallis, in fixing for ever 
 the land-tax payable to Government, was, if I may 
 venture to pass any opinion on the point, a matter of 
 necessity, and the despatch of the Court of Directors, 
 dated the 2gth September 1792, indorsing the 
 Governor-General's views, was in accordance with the 
 spirit of the age and the views of the Parliament as 
 contained in Pitt's India Act. The necessities of pay- 
 ing the great military and civil establishments of the 
 Company and the dividends to the proprietors re- 
 quired the punctual realisation of the land-tax, and 
 the 'amount needed was large. To avoid fluctuation 
 and ensure punctual realisation, some means was abso- 
 lutely necessary to be adopted, and the Government 
 adopted not only the best, but the event shows, the most 
 successful one. The tax was at the time so heavy, 
 and the rules adopted for realising it so paralysing, that 
 most of the ancient rajahs and zemindars of Bengal, who 
 had the good fortune of the Permanent Settlement being 
 thrust upon them, succumbed in the course of a few 
 years. The then prevailing feeling in England about its
 
 ZEMINDARS. 89 
 
 own land-tenures, coupled with the exigencies brought 
 on by the revolutionary war, a feeling which resulted in 
 the passing of the statute 38 Geo. Ill cap. 60, whereby 
 the tax on landed estates in England was perpetually 
 fixed "subject to purchase and redemption by pro- 
 prietors," led more than any other cause to the intro- 
 duction in India of the same principle of giving certainty 
 to the demand of Government upon land. 
 
 The error of the Permanent Settlement was in the Zemindars, 
 application to India of English principles of land law, 
 and the assessment of the tax on insufficient mate- 
 rials. The zemindars were the only class of persons 
 whom in the then existing state of things the Govern- 
 ment could look to for punctual realisation of State- 
 dues. There was at the time this important body who 
 had widely different sources of origin, but known to the 
 Mahomedan governors by one name only. Some of 
 them had long ancestries to tell, beginning at a 
 period coeval, if not anterior, to the Mahomedan con- 
 quest of Bengal. Many of them were hereditary princes, 
 owing only financial allegiance to the authority of the 
 Great Moghul or his viceroys. Their law of succession 
 was the law of principalities — primogeniture} Even those 
 who were of recent origin were very influential and 
 wielded power not much inferior to that wielded by the 
 very ancient families. The more influential and the in- 
 telligent amongst these were, to borrow a modern 
 expression, members of the viceregal council at Mur- 
 shidabad. They were ministers of state, and the govern- 
 ment of the country was practically, to a considerable 
 extent, entrusted to their hands. If we classify them, 
 the first class would represent the old Hindu Rajas 
 of the country, whose ancestors had held independent • ■ 
 principalities or principalities that owed only nominal 
 allegiance to the imperial government, either Hindu or 
 
 ' See Raj Kishen v, Ramjoy, 19 W. R. 8. 
 L
 
 9<5 PERMANENTLY SETTLED ESTATES. 
 
 Mahomedan. The Rajas of Assam, Tipperah, Cuch- 
 Behar, Bishenpur, Birbhoom and Chota-Nagpur may be 
 placed in this class. The second class consisted of the 
 great land-holding families that came into existence 
 during the Mahomedan government through its suffer- 
 ance or favour. The Rajas of Rajshahi, Dinajpur, 
 Burdwan and Jessore with many others vitxe de facto 
 rulers in their own states or territories, and used to pay 
 only fixed tribute or land-tax. They were like feudatory 
 chiefs. The third and the most numerous class consisted 
 of persons whose families had held offices for collecting 
 revenues for two or three generations and who thus 
 claimed a prescriptive right to hold on. Then there 
 were the revenue-farmers who, since the grant of the 
 Diwani in 1765, had been placed in office and also hap- 
 pened to be called zemindars.'^ Thus all the persons or 
 families known as zemindars in 1790 were not merely 
 collectors of land -revenue or tehsildars removable at 
 pleasure. The office of zemindar had, in fact, in most 
 instances become hereditary, and they paid fixed sums of 
 money to the Nabob's treasury, more as tribute than as 
 land revenue. The Nabob sometimes extorted more 
 money than the settled or customary amount, but that 
 was not by right or law, but by might or violation of law. 
 When the Government of India, that is to say, the power 
 in England and the Governor-General's Council in India, 
 agreed in dealing with all these zemindars in the same 
 way as if they were feudal lords, some of them were 
 no doubt raised in position and emolument, but the status 
 of many of tlum was lowered. 
 Errors of the Causes much similar to those that led to the 
 
 Permanent feudalization of Europe after the fall of the Carlo- 
 bettlement. _ ... 
 
 vingian dynasty were in force in India at the begin- 
 ning and middle of the h^ightecnth Century, and when 
 the Englisii found themselves masters of the country, 
 
 ' Hunter's Manuscript Records, p. 31.
 
 ERRORS OF THE SETTLEMENT. 9I 
 
 they saw a state of things very much similar to the 
 feudal government of the Middle Ages. Consciously 
 or unconsciously, Lord Cornwallis was thus led to in- 
 troduce an imitation of the English system of landed 
 property. 1 The State assumed to itself and made 
 over to the zemindars its own supposed proprie- 
 tary right to the soil, as if the cultivators had no 
 right to hold land against the will of the Government 
 and its grantees. Deeper and closer observation, how- 
 ever, would have disclosed, underlying the upper layer, 
 conditions of life and ideas of legal rights and obliga- 
 tions dissimilar to any with which Englishmen were 
 familiar, and they consequently failed to grapple with, 
 far less, to appreciate them. The words of Sir John 
 Shore were of no effect. To repeat the words of the 
 preamble to Regulation II of 1793, " the property in 
 the soil was formally declared to be vested in the land- 
 holders," but adequate provision was not then made for 
 the protection of the class of persons who were the real 
 proprietors of the soil and who deserved for their weak- 
 ness the largest amount of protection from the hands of 
 Government. 
 
 The haste with which the amount of revenue Settlement 
 was fixed was another cause of defect in the Per- made on in- 
 
 /-. <-T-i r 1 1 • I sufficient 
 
 manent Settlement. The revenue hxed was so high materials, 
 
 that, within the course of fifteen years, the Rajas of 
 
 NaHia, Rajshahi, Bishenpur, Dinajpur, Kasijora and 
 
 many others almost submerged under its wave. The 
 
 Birbhoom zemindar was completely ruined. A host of ; 
 
 smaller zemindars shared the same fate. It is perhaps 
 
 scarcely too much to say that in a few years a complete 
 
 revolution took place in the constitution and ownership of 
 
 the estates which formed the subject of the Settlement. 
 
 The dismemberment was quick, and the ruin subversive 
 
 of its very principles. The revenue assessed on other 
 
 Hunter's Manuscript Records, p. 45.
 
 "9^ tERMANfeNtLY SETTLED ESTATES. 
 
 estates did not include the then unknown item of waste 
 land, and many estates situated at a distance from the 
 metropolis escaped rather cheap. Only the Raja of 
 Burdwan, heavily assessed as his estates were, escaped 
 through an accident. 
 
 Opinion of Financiers in India now regret that there was this 
 
 financiers. „ 01 • 1 r t 
 
 rermanent b>ettlement, as the zemindars or the pres- 
 ent day make large profits. That some of them 
 do make profit is undoubted. A good many of them, 
 however, derive title by purchase /. e., outlay of large 
 capitals. These financiers think that it is the State, 
 and not the zemindars, who should have profited by 
 the increase of the cultivated area in Bengal and the 
 more manifold increase in the value of the pro- 
 duce. But they forget that the East India Company 
 would have been reduced to bankruptcy, if they had 
 not adopted the principle of permanent settlement ; 
 they forget that the vested rights of a large number of 
 zemindars required permanent settlement, and that, 
 taking all things into consideration, the State has not 
 suffered, — the ancient Rajas and the cultivators of the 
 soil have suffered. In fact, notwithstanding the Perma- 
 nent Settlement, the amount of revenue has increased 
 from Rs. 2,85,87,722 in 1790-91 to Rs.3,70, 1 1,385 in 
 1892-93, exclusive, in the latter year, of a good many 
 districts. The best authorities, I think, are now agreed 
 that the adoption of the principle of the Permanent 
 Settlement was not a mistake. 
 Regulation Regulation I. of 1793, passed on the ist May 1793, 
 
 ^ '793- ^y i^ig P^xcellericy the Governor General in Council, con- 
 tains the Proclamation making the Decennial Settle- 
 ment of Bengal, Behar and Or'issa. perf/ia/icnL Orissa at 
 that time contained only a portion of the district of 
 Hughli and Midnapur — it included only the tract of 
 country lying between the Rupnarayana and the 
 
 ' Bengal Administration Report, 1872-1873, p. 40.
 
 SETTLEMENT RULES. 
 
 ^5 
 
 Siivernarekha. Orlssa proper, which was conquered 
 from the Mahrattas in 1803, is even now, as you have 
 seen, subject to a temporary settlement. The Decen- 
 nial Settlement was commenced in 1789 and completed 
 in 1791. The temporary settlements made from time to 
 time before that year had been found unsuccessful in 
 a financial point of view, and the Proclamation was 
 issued on the 22nd March 1793, by which the Governor- 
 General in Council declared, with the concurrence 
 of the Court of Directors, that the zemindars, indepen- 
 dent taluqdars and other actual proprietors of land, 
 with whom the Decennial Settlement had been con- 
 cluded, would be allowed to hold their estates at the 
 same assessment for ever, " and that the jumma, 
 which might be hereafter agreed to by the proprietors, 
 whose lands had been held khas or let in farm, be fixed 
 forever."^ But " no claims for remission or suspen- 
 sion of rent was to be admitted on any account, and 
 lands of proprietors were to be invariably sold for 
 arrears."- Proprietors were also declared to have the 
 privilege of transferring their lands without the sanc- 
 tion of Government, and partition or division of estates 
 was to be freely allowed.^ These were the main pro- 
 visions of the Regulation, which has sometimes been 
 said to be the "charter of the landed aristocracy of 
 Bengal." The Government reserved the right to 
 enact such regulations as might be necessary for the 
 protection and welfare of the dependent taluqdars, 
 raiyats and other cultivators of the soil, without detri- 
 ment to its right to levy the fixed sum payable 
 by the actual proprietors as revenue.* But, as you 
 will presently see, the power was not exercised until 
 ' very recently. 
 
 Regulation I of 1793 should be read along with Reg- Regulation 
 ulation VIII of that year, as it contains the principles VIII of 1793* 
 
 ' Reg. I of 1793, Sec. 5. * Reg. I of 1793, Sec. 7. 
 
 ' Reg. I of 1793, Sees. 9 and 10. ^ Reg. I of 1793, Sec. 8, cl. i.
 
 ^ PERMANENTLY SETTLED ESTATES. 
 
 of settlement and the mode of assessment. Section 4 
 of the latter Regulation enacted — •" The settlement, 
 under certain restrictions and exceptions hereafter 
 specified, shall be concluded with the actual proprietors 
 of the soil, of whatever denomination, whether zemin- 
 dars, taliiqdars or chowdhiiris."'^ These taluqdars are 
 called in the Regulations independent taluqdars, who 
 were entitled to hold land with all the privileges of 
 zemindars, paying revenue direct to Government. Sec- 
 tion 5 of the Regulation specifies who these independent 
 taluqdars are," while the following three sections 
 deal with taluqdars who are not independent. I 
 have already said'* that some lands were held under 
 grants made by the Mahomedan government as 
 ?nalguzari aymas i. e., on payment of fixed sums 
 as quit-rent, and those granted for the benefit of learn- 
 ed men and colleges were classed as independent taluqs, 
 while tnalguzari aymas granted bond fide iox the pur- 
 pose of bringing waste lands into cultivation were 
 to be classed with other jungleburi taluqs as dependent 
 
 ' Reg. VIII of 1793, Sec. 4. 
 
 * The Taluqdars to be considered the aftual proprietors of the lands 
 composing their taluqs are the following : — 
 
 Pirst. — Taluqdars who purchased their lands by private or at public 
 sale or obtained them by gift from the zemindar or other a6tual proprie- 
 tor of land to whom they now pay the revenue assessed upon their 
 taluqs, or from his ancestors, subjefl to the payment of the established 
 dues of Government, and who received deeds of sale, or gift of such 
 land, from the zemindar, or srt»)Zrt(f5 from the khalsa, making over to 
 them his proprietary rights therein. 
 
 Second. — Taluqdars whose M/t^ys were formed before the zemindar, 
 or other actual proprietor of land, to whom they now pay their revenue, 
 or his ancestors succeeded to the zemindari. 
 
 Third. — Taluqdars, the lands comprised in whose taluqs were never 
 the property of the zemindar or other actual proprietor of the soil, 
 to whom they now pay their revenue, or his ancestors. 
 
 Fourth. — Taluqdars, who have succeeded to taluqs of the nature of 
 those described in the preceding clauses, by right of purchase, gift, 
 or inheritance from the former proprietor of such taluqs. 
 
 ' Ante. p. 65.
 
 REGULATION VIII OF 1793- 95 
 
 talnqs.^ Regulation VIII of 1793 also contained the 
 general rules for other permanent settlements and 
 provisions as to the existing subordinate rights in 
 land, the rights of the settlement-holders in relation 
 to raiyats, and rules as to sayer compensation and 
 zemindar's private chakran lands. Many of the sec- 
 tions of this Regulation have been formally repealed, 
 and with the exception of those that deal with the 
 substantive rights of the different classes of persons in- 
 terested in land, the Regulation itself is now of little 
 practical use. The rules of assessment laid down in the 
 Regulation were the basis of further permanent settle- 
 ments, and they continued to be in force until 1822, 
 when they were considerably modified. Permanent 
 settlements continued to be made until about the^year 
 1871,'- and thus the permanently settled area in the 
 Bengal Provinces is now very large. ^ 
 
 The Regulation Code of 1793 laid down, with sufifi- Changes 
 cient precision, the rules intended to govern the legal ^^ ^ ^*"*^^ 
 relation between the State and the proprietors with whom 
 permanent settlements were concluded, but they occasion- 
 ally required explanations, modifications and additions, 
 as experience and altered state of things from lapse of 
 time demanded. Much of the complications now exist- 
 ing in the law relating to landlord and tenant in the 
 Bengal Provinces is due to modifications and amendments 
 
 ' Reg. VIII of 1793, Sec. 9. 
 
 ^ Ante. p. 51. 
 
 ' The permanent settlement extends over the following districts — 
 
 Bengal - Burdwan, Bankiira, Birbhum, Hughli, Howrah, 24-Perganas, 
 Jessore, Nadia, Murshedabad, Dinajpur, Malda, Rajshahi, Rung- 
 pur, Bogra, Pubna, Maimensing, Faridpur, Backerganj, Chittagong, 
 Noakhali, Tipperah, Dacca, portions of Chota-Nagpur, Julpaiguri and 
 Sylhet. 
 
 Behar — Patna, Gya, Shahabad, Tirhoot, Sarun, Champaran, Purnea, 
 Bhagulpur, Monghyr and part of Sonthalia. 
 
 Orissa — Midnapur. 
 
 Assam — Part of Goalpara.
 
 ig6 PERMANENTLY SETTLED ESTATES. 
 
 made now and then since 1793. The exact extent of the 
 repeal, made indirectly and by implication, is difficult 
 even for professional lawyers to discover. The Laws' 
 Local Extent Act and the Repealing Act (Acts XV of 
 1873 and XVI of 1874) are not sufficient to guide us 
 safely through the labyrinth. 
 Sicca and The settlement-holders, their heirs, successors and 
 
 Company's , ,. . i r it.. 
 
 Rupee. representatives were exempted from any additional 
 
 demand of revenue. In the words of the Proclamation 
 issued on the 22nd March 1793, " the assessment was 
 irrevocable and unalterable." ^ They were, on the other 
 hand, to pay into the exchequer the assessed amount 
 without any abatement. The original assessment and 
 the mode of payment were by sicca Rupees. In 1835, the 
 Rupee, known as the Company's Rupee, was declared to 
 be legal tender for the Calcutta sicca Rupee,and the value 
 of the Company's Rupee was declared to be fifteen-six- 
 teenths of the sicca Rupee.- Act XVII of 1835 came into 
 operation on the ist September 1835, and since then the 
 amount of revenue, payable by every settlement-holder, 
 was increased by one- fifteenth. This, however, was not 
 an actual alteration in the amount of the revenue. -"^ 
 
 Dawk Cess. The Bengal Legislature passed in 1862 an Act 
 
 for improving the system of Zemindari Dawks, in as 
 much as the conveyance of letters on public service 
 between Police officers and Police stations and the 
 Magisterial offices was defective, irregular and uncer- 
 tain ; and, as fund was required to improve the system,* 
 Magistrates of districts were empowered to raise annu- 
 ally the total sum necessary for postal service, known 
 as the Zemindari Dawk Service. The apportionment is 
 ratably on the sudder jiimina, subject to the approval of 
 and revision by the Commissioner of the Division. The 
 payment is required to be made half-yearly in advance, 
 
 ' Reg. I. of 1793, Sec. 7. * Aft XVII of 1835. 
 
 » Kalee v. Shoshee, i W.R. 248. ' Preamble to Aft VIII (B.C.) of 1863.
 
 CESSES. ^j 
 
 and double the amount is levied in default.^ The amount 
 is recoverable under the Public Demands Recovery Act. 
 The performance of the duties for which the tax was 
 originally imposed is now actually under the control of 
 the Government Postal Department, and, except in isolat- 
 ed tracts, no zemindari dawk is maintainable between 
 any two places;- but the Dawk cess continues to be 
 levied as rigorously as in 1862, as an additional im- 
 post upon the sudder jumma. It is now a legalized 
 ahwah.^ The Dawk cess is not recoverable from under- 
 tenants or raiyats without special contract, and even 
 where there is a contract it is not realisable as rent.* 
 
 The Bengal Legislature passed in 1871 an Act for Road and 
 
 local rating for the construction and maintenance of Public Works 
 
 '^ Cesses, 
 
 roads (Act X of 1871). The rate was local, and persons 
 
 interested in land and being in possession, zemindars, 
 tenure-holders and raiyats, all were to contribute to the 
 fund, — zemindars being primarily liable to Govern- 
 ment. This Act was followed by Act II (B.C.) of 1877, 
 known as the Provincial Public Works Cess Act. The 
 Settlement Proclamation required the zemindars to im- 
 prove their estates, making use of the profits secured to 
 them by the fixity of revenue, and if they failed to execute 
 and maintain works of public utility, the State could in- 
 terfere and compel them to do so. But how far the terms 
 of the Proclamation would permit the State to levy cesses 
 for the construction and maintenance of roads and for 
 other works of public utility, or for a fund for use at 
 times of scarcity and famine for relief works, is a ques- 
 tion which has been a constant topic of discussion. 
 
 These Acts were consolidated with amendment in the The Cess Aft 
 Bengal Cess Act OX of 1880), which is now in force. °^ '^^°- 
 
 ' Aa VIII (B.C ) of 1862, Sec. 9. - Aft VIII (B.C.) of 1862, Sec. 4. 
 
 3 Bissonath x. Ranee Shurno Moyee, 4 W. R. 6. 
 
 ^ Aft VIII (B. C.) of 1862, Sec 12; Ruttun Monee v. Jotendro, 
 6 W. R. (Aa X) 31 ; Maharajah v. Sadha, 8 W. R. 517 ; Erskine 
 V. Trilochun, 9 W. R. 518. 
 M
 
 98 PERMANENTLY SETTLED ESTATES. 
 
 The amount levied under this Act is an addition to the as- 
 sessed revenue^ though it is not realised as such. These 
 cesses are personal debts of the proprietors, and are not 
 charges^ on the estate or tenure for which they are due, 
 and cannot be realised by sale of such estate or tenure, 
 if the debtor's right has passed to a third person. They 
 are recoverable by the procedure laid down in the 
 Public Demands Recovery Act^. Under section 41 
 of the Cess Act — " Every holder of an estate shall yearly 
 pay to the Collector the entire amount of the road cess 
 and public works cess, calculated on the annual value 
 of the lands comprised in such estate, at the rate or 
 rates which may have been determined for such cesses 
 respectively for the year as was in this Act provided, 
 less a deduction to be calculated at one-half of the said 
 rates for every rupee of the revenue entered in the valua- 
 tion-roll of such estate as payable in respect thereof." 
 The Collector is to prepare the valuation-roll of each 
 estate, the annual value of the lands comprised in it be- 
 ing determined either summarily or from materials sup- 
 plied in accordance with the rules laid down in the vari- 
 ous sections of the Act^ The maximum rate for every 
 rupee of the annual value is half an anna for each of the 
 cesses, and the maximum is now levied in almost all the 
 districts in the Bengal Provinces. The amount payable to 
 the Collector, if the full rate be levied, is, in the words of 
 section 41, one anna for every rupee, less half an anna for 
 every rupee of the revenue payable to Government. Sup- 
 posing an estate is valued by the Collector at Rs. 1000, 
 and the revenue payable is Rs. 700, the amount pay- 
 
 > Shekaat v. Sasi, I. L. R. 19 Cal. 783; Mahomed v. Gujraj, 
 I. L. R. 20 Cal. 826, and the same case Gujraj v. Secretary. I. L. R. 
 
 17 Cal. 414. 
 
 ■' As to sales under certificates under the Public Demands Recovery 
 Aa, see Sadhusaran v. Panchdeo, I. L. R. 14 Cal. i ; Ram v. Bhawani, 
 I. L. R. 14 Cal. 9, and Monindra v. Saraswati, I. L. R. 18 Cal. 125. As to 
 mode ot" service of notice, see Rakhal v. Secretary, I. L. R. 12 Cal. 603. 
 
 « Aft IX (13. C.) 1880, Sees. 14 to 29.
 
 INCOME TAX. 99 
 
 able for the two cesses together is i,ooo annas minus \ 
 of 700 annas, that is to say, Rs. 40-10 as. As we shall 
 presently see, a part of this amount is recoverable by the 
 holder of the estate from subordinate tenure-holders and 
 raiyats and holders of rent-free lands, and the amount pay- 
 able under the law by him from his own profit is 300 half- 
 annas, that is to say, Rs. 9-6 as. The principle is that 
 every holder of land must pay half an anna per rupee of 
 his profit, the raiyat or actual cultivator paying half an 
 anna per rupee of the rent payable by him. So that the 
 holder of an estate is made to pay an additional sum be- 
 sides the revenue, and he is primarily liable to Govern- 
 ment for the entire amountof cesses payable to the State. 
 The days for payment by the holders of estates to the 
 Collector are the same as those fixed for the pay- 
 ment of the instalments of revenue, but the instalments 
 of cesses are equal. ^ In most of the districts in the Bengal 
 Provinces, the amount is payable in four instalments ex- 
 cept in cases of small estates. The instalments of reve- 
 nue, however, are generally unequal. 
 
 The Income Tax," which, there is every reason to ap- The Income 
 prehend, will be permanent, is not payable for profits de- Tax Aa. 
 rived by zemindars from their estates. But estates or parts 
 of estates situated within municipalities are exempted 
 from the operation of the Cess Act of 1880. Income 
 Tax is payable in respect of such estates. 
 
 The payment of revenue, which is a charge on the gale for 
 land, demands our special attention. It is a liability on arrears of 
 the land as a first charge and is realisable by Govern- 
 ment, in the first instance, by the sale"^ of the land for 
 which the arrear is due. 
 
 The original engagements with the proprietors and History of the 
 farmers of land were for the payment of the annual Sale Laws, 
 revenue in monthly instalments, the amount of each in- 
 stalment varying generally with the instalments of rent 
 
 ' Aa VIII (B.C.) 1880, Sec. 42, cl. i. - Aa II of 1886. 
 ' Reg. I of 1793, Sec. 7.
 
 l^p 
 
 PERMANENTLY SEtTLED EStATES. 
 
 recoverable from raiyats. An arrear of revenue has 
 been defined to be " the whole or portion of the kist or 
 insialment payable in any month and remaining undis- 
 charged on the first of the following month." ^ On an 
 arrear of revenue being due, the Collector, under the law 
 as originally framed, was required to serve a notice on the 
 defaulter, and on his failure to pay, notwithstanding the 
 service of the notice, the Collector had the option of 
 confining the proprietor." The Board of Revenue only 
 might direct the sale of the whole or a portion of the 
 estate of the defaulter, but the sanction of the Governor- 
 General in Council was in every case necessary.^ If 
 the proceeds of the sale were not equal to the Govern- 
 ment demand, other properties of the defaulter might 
 be sold to make good the deficiency.* Before the 
 end of the year 1793 the law had to be modified ; restric- 
 tions were placed on the powers of the Collectors to 
 direct the confinement of proprietors, and sales of estates 
 were directed to be advertised even without the sanc- 
 tion of the Governor-General, but no sale was to take 
 place without such sanction. s A material alteration 
 was, however, made in the law by Regulation VII of 
 1799, the practical effect of which was that the con- 
 finement of defaulters for non-payment of revenue 
 was abolished, the personal properties of defaulters 
 and their sureties were made liable to be attached,'^ 
 and the Board of Revenue was for the first time 
 authorised to conduct sales.''' The next Regulation 
 on the subject was I of 1801, but it made no material 
 alteration in the law. Regulation V of 1812 made 
 an important alteration as regards payment of inter- 
 
 ' Reg. XIV of 1793, Sec. 2 ; Aft XI of 1859, Sec. 2. 
 
 ' Reg. XIV of 1793, Sec. 4. 
 
 » Reg. XIV of 1793, Sec. 13 ; Kirt v. Govt., S W. R. (P. C.) 41, 
 
 5C. I M. I A. 383. 
 * Reg. XIV of 1793, Sec. 44. ^ Reg. Ill of 1794. 
 
 " Reg. VU of 1799, Sec. 23. ' Reg. VII of 1799, Sec. 30.
 
 REVENUE SALE LAW. jg| 
 
 est on arrears. 1 The liability to penalty directed to be 
 imposed by the previous Regulations was removed and 
 interest at twelve per cent, per annum was made charge- 
 able, unless the same was remitted by the Board of 
 Revenue. By Regulation XVIII of 1814, a further modifi- 
 cation was made, which dispensed with the previous sanc- 
 tion of the Governor-General in Council for sales of es- 
 tates and gave to the Collectors of Districts larger powers. 
 In the year 1822 when sales became less frequent 
 and the necessity of superintendence by the superior 
 officers of revenue became smaller, the Board of Reve- 
 nue was vested only with the revisional power of annul- 
 ling sales-, and civil courts were empowered under cer- 
 tain circumstances to set aside revenue-sales. In 1841 
 Act XII was passed, discontinuing the levying of interest 
 and penalty upon arrears, appointing fixed days for 
 payment of revenue, and providing fixed dates for sales 
 of estates in arrear. 
 
 The law as to revenue-sales was considerably modified Aft I of 1845. 
 by Act I of 1845. It is not necessary to go into the details 
 of the rules laid down by this Act, as it was with slight 
 modifications reproduced in Act XI of 1859 — the sale-law, 
 which, with certain modifications made by Act VII (B.C.) 
 of 1868, is now in force. You will find in the reports 
 several cases on the Act of 1845, and I shall advert to 
 them when referring to the corresponding sections of the 
 existing law. There is, however, one leading case 
 on the construction of section 9 of the Act of 1845 
 which deserves attention, as it is often quoted — 
 viz., the case of Nagendra Chundra Ghose v. Kamini 
 Dasi:'^ Kamini Dasi was a Hindu widow in posses- 
 sion of her husband's estate as his heiress. Nagendra 
 Chundra had deposited money under section 9 of the 
 Act to protect his interest as mortgagee of a revenue- 
 paying estate belonging to Kamini Dasi as heiress of 
 
 ' Reg. V of 1812, Sec. 28. « Reg. XI of 1822. 
 
 ^ 8 W. R., (P. C.) 17, sc, II M. I. A. 241.
 
 *0^ PERMANENTLY SETTLED ESTATES. 
 
 J^L^^j^r* her husband, when the estate was about to be sold for 
 
 Kamini Dasi. arrears of revenue, she having defaulted to pay. The ques- 
 tion that was raised in the suit instituted by Nagendra 
 Chundra for the recovery of the money deposited by him 
 was whether the amount deposited by him for the protec- 
 tion of the estate was a charge on the inheritance, or 
 whether it was a personal debt of the widow, Karaini 
 Dasi. The Judicial Committee of the Privy Council held 
 upon the construction of section g of the Act that the 
 amount of deposit with interest was recoverable from the 
 proprietress and that it was her personal debt. The Judi- 
 cial Committee, however, was of opinion that " consider- 
 ing that the payment of revenue by the mortgagee did 
 prevent thetaluq from being sold, their Lordships would, 
 if that were the sole question for their consideration, find 
 it difficult to come to any other conclusion than that the 
 person, who had such an interest in the taluq as entitled 
 him to pay the revenue due to the Government and did 
 actually pay it, was thereby entitled to a charge on the 
 taluq as against all persons interested therein for the 
 amount of the money so paid." Their Lordships, how- 
 ever, dismissed the suit, as they could not, having the 
 express words of section 9 of the Act before them, apply 
 the general principle stated in the words I have quoted 
 from the judgment. Section 9 of the Act of 1845 was 
 amended by Act XI of 1859, and holders of lien on 
 estates were reasonably secured.^ 
 Aas XI of Act XI of 1859. which, with Bengal Act VII of 
 
 (B?C.^of^i868! 1868, regulates at the present day the procedure for 
 recovery of arrears of revenue, is about to be repealed, 
 and a Bill is now under the consideration of the 
 local legislative council. I hope that in amending 
 these Acts our local Legislature would give their seri- 
 ous attention to the imperfections of the present 
 law, which in many instances have been found to work 
 the greatest injustice. Cases are not rare in which sales 
 
 ' A£l XI of 1859, Preamble and Sec. 9.
 
 THE SALE LAWS. I03 
 
 take place of valuable estates at extremely inadequate 
 prices and for petty arrears, the non-payment of which 
 did not arise from inadvertence, or neglect, or want of 
 means of the proprietors ; the Commissioners of Revenue, 
 however, do not think it proper to set them aside for 
 reasons which it is difficult to appreciate. The sales of es- 
 tates with revenues less than Rs. 500, and of which the 
 number is very large and is increasing every year on 
 account of partition and separation of shares, have been 
 found to be still more injurious, as these sales are not 
 advertised in the Official Gazette. The publication of the 
 notices required by the Act are left to ignorant and ill- 
 paid agents, who are often required to serve notices on 
 the lands of estates of which they have no personal know- 
 ledge. The punctuality with which the revenue of the 
 permanently settled estates in Bengal are now realized 
 is no doubt due, to a considerable extent, to the stringent 
 provisions of the " sunset laws" ; but the time has come 
 for further legislative enactment for the protection of 
 capitalists, who are absolutely necessary for the com- 
 mercial interest of the country, and of those holders of 
 estates who have parted with direct possession in favour 
 of tenure-holders and mortgagees. Stricter rules for the 
 publication of the fact of the non-payment of revenue, for 
 the service of notices of sale and the like, a revival of the 
 law for personal service on defaulters, and greater facili- 
 ties for setting aside sales on payment of penalty, may, 
 to a considerable extent, lessen the rigour of the present 
 law. Sales for arrears of revenue are not of constant oc- 
 currence, as is supposed by the Judicial Committee of the 
 Privy Council in Gobindolal v. Ramjanam Misser and 
 others^ There is now no reason for any apprehension 
 that " any thing which impairs the security of purchasers 
 at those sales tends to lower the price of the estates put 
 up for sale." As a matter of fact, many of the sales for 
 arrears of revenue that are attempted to be set aside are 
 
 ' I. L. R. 21 Cal. 70, sc. L. R. 20 I. A. 165.
 
 <lb4 
 
 PERMANENTLY SETTLED ESTATES. 
 
 Instalments 
 of revenue 
 and payment 
 thereof. 
 
 brought about for serving the fraudulent purpose of 
 defeating rightful owners, creditors and incumbrancers. 
 If on the other hand, the estate is sold at an adequate 
 value, seldom, if ever, is an application made for 
 setting aside the revenue-sale. 
 
 But the Bill to amend and consolidate the existing 
 provisions of the Sale Law may, like many others, be 
 shelved, and I think it proper to give here a short 
 summary of Act XI of 1859 and of the Bengal Acts modi- 
 fying the same, in so far as they bear on the present 
 subject. The /a's^s* or instalments of revenue are 
 
 * Table of latest dates fixed for the payment of the revenue of all 
 classes of estates in all districts : — 
 
 In districts where 
 the Bengali or 
 Amli era pre- 
 vails, except 
 the division of 
 Orissa aud the 
 district of 
 Chittagong. 
 
 In districts where 
 the Kasli era 
 prevails. 
 
 In the division 
 of Orissa. 
 
 In tlic district of 
 Chittagong. 
 
 Darjeeliug. 
 
 Hazaribagh (ex- 
 cept Knaruk- 
 dihn) 
 
 Loh.rdngga ... 
 
 Hiiigbhooni 
 
 Manbhoom 
 
 Khanikdili.i in 
 llazaribagh .. 
 
 Estates paying 
 an annual rev- 
 enue not ex- 
 ceeding Rs. 10. 
 
 K.S. 10, Dutnot Ks. 50, but not 
 exceeding Rs. 50. exceeding Rs.ioo 
 
 .28th March. 
 
 1 28th March 
 
 8th Novem- 
 ber. 
 
 1 28th June 
 
 Estates paying 
 
 an annual reve 
 
 nue exeeding 
 
 Rs. 10, but not 
 
 Estates paying 
 an annual reve- 
 nue exceeding 
 Rs. 50, but not 
 
 f 12th January. 
 128th March. 
 
 f 12th January. 
 1 28th March. 
 
 z8th April for 
 the 8 pun- 
 nee kist ... 
 
 Sth November 
 for the 16 
 punnee kist 
 
 /'25th May 
 
 1. 25th February 
 
 All Estates. 
 
 f 12th January. 
 128th June. 
 
 ( 2Sth June. 
 < 12th January. 
 (28th March. . 
 
 fyth June. 
 < 12th January, 
 (.28th March. 
 
 28th April for 
 the 8 puunee- 
 kist. 
 
 8tli November 
 for the 16 pun- 
 nee kist. 
 
 /■25th May 
 
 I 26 Dec. 
 
 V.25th February 
 
 .28th March. 
 
 128th March. 
 
 { 
 
 28tli January. 
 28th March. 
 
 28th January. 
 28th March. 
 
 f 28th October. 
 i 2Sth January. 
 t28lh March. 
 
 {2Sth May 
 2Sth January. 
 2Sth March. ... 
 
 Estates paying 
 an annual rev- 
 enue exceed- 
 ing Rs. 100. 
 
 (2Sth June .. 
 28th Sept. .. 
 12th Jan. .. 
 2Sth Jlarch. 
 
 !7th June ... 
 2Sth Sept. ... 
 12th January 
 28th March. 
 
 28th April for 
 the 8 punnee 
 kist. 
 
 Sth November 
 for the 16 
 punnee kist 
 
 (25th May. 
 2sth Sept. 
 26th Dec. 
 25th Feb- 
 
 f 28th October. 
 -; 28th January 
 |.2Sth March. 
 
 f 28th May. 
 A 28th January. 
 1 28th March. 
 
 Grimley's Revenue Sale Matiual.
 
 THE SALE LAWS. io5 
 
 not now payable monthly. Section 3 of the Act em- 
 powers the Board of Revenue to determine upon what 
 dates arrears of revenue shall be paid in each district 
 under their jurisdiction. If any quarterly instalment is 
 not paid up before the sunset of the latest day thus fixed, 
 the estate practically lapses, and the defaulter has no right 
 to bar or interfere with the sale by subsequent payment or 
 tender of payment ;i but the Collector has the power at 
 anytime before commencement of the sale, and the Com- 
 missioner at any time before the final bid is accepted, to 
 exempt the estate from sale by recording a proceeding, 
 giving the reason for granting such exemption." The 
 order of the Commissioner, however, has no effect if it 
 reaches the Collector after sale. The mere receipt by the 
 Collector of the arrears of revenue after the latest day, 
 without an express order for exemption, is not enough to 
 prevent the sale, or invalidate a sale that has taken place.' 
 If there is no arrear and all sums due as revenue have 
 been paid by the proprietor or any person on his be- 
 half before the sunset of the latest day, no sale can take 
 place, and if by inadvertence or mistake a sale does take 
 place, the sale should be set aside, and the Civil Courts 
 may interfere, the sale being one not under the Act.^ 
 
 » Aa XI of 1859, .Sec. 6; Gossain v. Ishri, I L. R. 21 Cal. 844. 
 See also Azimuddin v. Secretary, I. L. R. 21 Cal. 360. 
 
 ' Aft XI of 1859, Sec. 18; MohabeerT;. Colleaor of Tirhoot, 13 W.R. 
 
 423- 
 
 ' Gobind V. Sherajunnissa, 13 C.L.R. i ; Gauri v. Janki, I.L.R. 17 Cal. 
 809; Gobind v. Ramjanam, I. L. R. 21 Cal. 70. 
 
 ' Byjnath v. Lalla Seetul, 10 W. R. 66 (F.B.) sc, 2 B. L. R. i (F.B) ; 
 Sreemunt 7*. Shamasoonduree, 12 W.R. 276; Munjinat) Colleaor, 12 
 W.R. 311, sc, 3 B. L. R. App. 144; Thakoor v. Colleaor, 13 W.R. 336 ; 
 Hurgopal v. Ramgopal, 13 W. R. 381, sc, 5 B. L. R. 135 ; Ramgobind 
 V. Kushuffudoza, 15 W. R. 141 ; Gauri v. Janki, I. L. R. 17 Cal. 809, 
 sc, L. R. 17 I. A. 57. See also Gobind v. Ramjanam, I. L. R. 21 Cal. 
 70 (83) ; Gossain v. Ishri, I. L. R. 21 Cal. 844. As to sales for arrears 
 of cesses where really there are no arrears, see Gujraj v. Secretary, 
 I L. R. 17 Cal. 414 and the same case in P. C, Mahomed v. Gujraj, 
 I. L. R. 20 Cal. 826. 
 N
 
 I06 PERMANENTLY SETTLED ESTATES. 
 
 Deposit in the A deposit in the collectorate to the credit of the pro- 
 
 Collcaorate . . , . rr^ 
 
 prietor or even of the estate in arrear, surficient to 
 
 cover the amount of revenue payable to Government, is 
 not enough to exempt the estate from sale, unless the 
 Collector has been asked by especial petition, on or before 
 the latest day, to appropriate the amount in deposit to 
 the satisfaction of the amount payable as revenue.^ The 
 existence of such deposit in the collectorate, or the fact 
 that the arrear was small and that it was not put in owing 
 to inadvertence or mistake, may only be a reason for in- 
 ducing the Collector or the Commissioner of Revenue 
 to grant exemption from sale, and it may also be a good 
 reason for setting aside the sale, when it has taken place, 
 on the ground of hardship or injustice.^ But the deposit 
 of money or Government securities endorsed and made 
 payable to the order of the Collector under the provi- 
 sions of section 15 of the Act would protect the estate 
 from sale, such deposit being considered as actual pay- 
 ment made before the latest day.^ 
 Sale-notifica- When default has been made in the payment of reve- 
 
 tions. nue on the latest day provided therefor, the Collector is 
 
 required to issue two sets of notices. The first set is to 
 contain a particular description of the estate or share of 
 estate in default, the revenue assessed thereon, and the 
 date fixed for sale ; and one of these notices is required to 
 be affixed in the court-house of the District Judge and the 
 other in the office of the Collector who is to hold the sale. 
 The day fixed for sale should not be less than thirty days 
 from the date of the affixing of the notification in the 
 Collector's office. If th<- annual revenue payable for the 
 estate or share of estate in default exceeds the sum of Rs. 
 500, a notification of the sale should also be published in 
 the Official Gazette.* The other set of notices is required 
 
 ' Aa XI of 1859, Sec. 8. 
 
 • Aa XI of 1859, Sec. 26 ; Womesh v. Colleaor, 8 W. R. 439. 
 
 • Aa XI of 1859, Sec. 15. 
 
 • Aa XI of 1859, Sec. 6; Aa VII (B.C.) of 1 808, Sec. 3.
 
 IRREGULAR PUBLICATION OF SALE NOTICES. I07 
 
 to be published for the benefit of under-tenants and raiyats 
 who are thereby forbidden to pay rent to the defaulter. 
 They are required to be published and affixed at the 
 Collector's office, at the Moonsiff's court, at the Subdivi- 
 sionaj cutchery, at the Police stations within the jurisdic- 
 tion of which the lands of the mahdl in arrear lie, and at 
 the principal cutchery of the mahal or some conspicuous 
 part thereof.^ The non-publication or any irregularity in 
 the publication of any or all of these notices is, however, 
 not sufficient to vitiate the sale. That may amount to 
 irregularity but not illegality, making the sale absolutely 
 void. Even if the date fixed for sale be within thirty 
 days of the affixing of the notification in the Collector's 
 office, the sale that follows will not be a nullity, and Civil 
 Courts cannot set it aside on that ground ; but such sale 
 may be annulled on proof of substantial injury by reason 
 of the irregularity complained of. ^ It should, however, 
 be noted that the Court cannot infer, in the absence of 
 direct evidence, that inadequacy of price is due to irreg- 
 ularity ;' and the non-publication of the notification 
 under section 7, which is intended for the benefit of the 
 purchasers, cannot amount to material irregularity in 
 publishing the sale. The Commissioner of Revenue 
 has the power, on an appeal being presented to him 
 within sixty days from the date of sale or forty-five 
 
 ' AS: XI of 1859, Sec. 7 ; Aa VII (B.C.) of 1868, Sec. 7. As to 
 what omissions in the sale-notification are not materia], see Zerkalee ■:;. 
 Doorga, 16 W. R. 149; Secretary v. Rasbehari, I. L. R. 9 Cal. 591, sc, 
 12 C L. R. 27 ; Amirunessa v. Secretary, I. L. R. 10 Cal. 63, sc, Amirun- 
 nessa v. Browne, 13 C. L. R. 131 ; Ram v. Mahabir, I. L. R. 13 Cal. 208. 
 And as to irregularities, see Cornell v. Oodoy, 8 W. R. 372. 
 
 • Womesh v. Isharutoollah, 8 W. R. 439 : Luleeta v. Colleftor, 19 
 W. R. 283; Gobind v. Sherajunnissa, 13 C. L. R. i ; Balmokoond v. 
 Jirjudhun, I. L. R. 9 Cal. 271, sc, 11 C. L. R. 466 ; Mobaruk v. Secre- 
 tary, I. L. R. II Cal. 200; Gobind v. Bipro, I. L. R. 17 Cal. 398 ; 
 Mahomed 1/. Raj, I. L. R. 21 Cal. 354. 
 
 » Maharajah v. Hurruck, 9 M. I. A. 268; Mahabeer v. Colle6tor, 15 
 W. R. 137; Mahomed 1/. Raj, I. L. R. 21 Cal. 354. See also Mobaruk 
 V. Secretary, I. L, R. 1 1 Cal. 200.
 
 108 PERMANENTLY SETTLED ESTATES. 
 
 days, if presented to the Collector for transmission to 
 the Commissioner, to annul the sale, if it appears to him 
 not to have been conducted according to the provisions 
 of the law, and he may also lay down terms for pay- 
 ment of compensation to the purchaser.^ A sale may also 
 be set aside under section 26 of Act XI of 1859 on the 
 ground of hardship. 
 Notice under ^,^ exception is made in the case of arrears other 
 
 Sec. 5 of Aft , , ' . ^ r <.! • ^• ^ 
 
 XI of 1859. than those for the current year or tor the year immediate- 
 ly preceding, arrears due on account of estates other 
 than that to be sold, and arrears of estates under attach- 
 ment by order of any civil judicial authority," whether the 
 attachment be of the whole or of a part, and of estates 
 managed by the Collector in accordance with such order.' 
 In such cases the law declares that the estates shall not 
 be sold otherwise than after a notification shall have been 
 affixed at the courts of the District Judge and the local 
 Munsiff, at the police station, and also at the cutchery of 
 the payer of the revenue, or at some conspicuous place of 
 the locality for a period of not less than fifteen clear days 
 precedin<^ the date fixed for payment in the office of the 
 Collector. This notification is imperative, and its non- 
 service is a material irregularity, for which the sale for 
 arrears may be set aside. This provision as to special 
 notice, however, applies only where the attachment has 
 been effected at least fifteen days before the last date 
 fixed for the payment of any instalment of revenue for 
 which it is sought to bring the estate to sale.* 
 
 • Aa Vn (B. C.) of 1868, Sec. 2 ; Womesh v. Colleaor, 8 W. R. 
 439 ; Gobind v. R.im, I. L. R. 2i Cal. 70, sc, L. R. 20 I. A. 165. 
 
 ^ Aft XI of 1859, Sec. 5. An attachment under Sec. 10 of the Public 
 Demands Recovery Aft is not a judicial proceeding. Ram v. Mahabir, 
 I. L. R. 13 Cal. 208. 
 
 » Aa VII iB.C.) of 1868, Sec. i ; Biinvvari v. Mohabir, 12 B. L. R. 397 
 sc, L. R. I. I. A. 89. 
 
 * Mohabir v. Colleaor, 15 W. R. 137; Nownit v. Radha, I. L, R. 
 22 Cal. 73S.
 
 SUITS TO SET ASIDE REVENUE-SALES. it^ 
 
 Section 6 of Act XI of 1859 does not require that Notice under 
 
 ' of A " 
 1859. 
 
 the name or names of the proprietor or proprietors xTof i8<;o 
 
 should be specified in the notice, and no analogy can 
 
 be drawn in this respect between a sale by the civil court 
 
 and that by the Collector.^ 
 
 The jurisdiction of civil courts to set aside revenue- Suits to set 
 . 1 1- • 1 1 A • aside revenue 
 
 sales IS of an extremely limited character. A suit to set sales, 
 
 aside a revenue-sale must be brought within one year 
 from the date when the sale is confirmed and becomes 
 final. ^ The sale becomes final at the noon of the sixtieth 
 day from the date of sale, that day being included, and if 
 an appeal be preferred, from the date of the dismissal of the 
 appeal by the Commissioner, if such date be beyond the 
 sixtieth day. The ground or grounds for setting aside the 
 sale by a civil court must be such as has or have been de- 
 clared and specified in the petition of appeal to the 
 Commissioner, and no sale can be set aside unless such 
 appeal has been preferred and the ground or groundis 
 specifically taken. 2 But if there is illegality and not mere 
 irregularity, or the sale is a nullity, there being no arrears, 
 no appeal to the Commissioner is necessary before suit.* 
 No person who has received the purchase-money or any 
 part thereof is entitled to contest the legality of the sale.' 
 
 There is another difficulty as to the exercise of the Aavil 
 power of civil courts in setting aside sales on the ground 1868 Sec. 8. 
 of material irregularity. Under section 8 of Bengal Act 
 
 ' Secretaryt;. Rasbehari, I. L R.9 Cal. 591; Amirunessa 7;. Secre- 
 tary, I. L. R. 10 Cal. 63; Gobind v. Sherajunnissa, 13 C. L. R. i ; Ram- 
 narain v. Mohabir, I. L. R. 13 Cal. 208. 
 
 ' Aft XI of 1859, Sec. 33 ; Aa XV of 1877. Schedule II, art. 12, 
 cl., (c) ; Raj v. Kinoo, I. L. R. 8 Cal. 329. 
 
 ' Mohun ■». Colleaor of Tirhoot, i W. R. 356; Womesh v. Colleaor 
 of 24-Perg. , 8 W. R. 439 ; Gobind v. Sherajunnissa, 13 C. L. R. i ; Gauri 
 V. Janki, I. L. R. 17 Cal. 809; Gobind v. Ramjanam, I. L. R. 21 Cal. 
 70; Gossain v. Ishri,!. L. R. 21 Cal. 844. 
 
 * Byjnath v. Seetul, 10 W. R. (F. B.) 66; Munjina v. Colleaor, la 
 W. R. 311; Thakoor v. Colleaor, 13 W. R. 336; Lala Mobaruk i/. 
 Secretary, I. L. R. 1 1 Cal. 200. 
 » Aa XI of 1859, Sec 33.
 
 ilO PERMANENTLY SETTLED ESTATES. 
 
 VII of 1868, every certificate of sale issued under Act XI 
 of 1859 "shall be conclusive evidence in favour of such 
 purchaser and of every person claiming under him that 
 all notices in or by this Act or by the said Act XI of 
 1859, required to be served or posted, have been duly 
 served and posted ; and the title of any person who may 
 have obi. lined any such certificate shall not be impeach- 
 ed or affected by reason of any omission, informality, 
 or irregularity as regards the serving or posting 
 of any notice in the proceeding under which the sale 
 was had at which such person may have purchased." 
 The rule of law here laid down confines the inquiry 
 merely to the ground of nullity, i. <?., illegality and not 
 mere irregularity/ the sale not being under the provi- 
 sions of the said Acts. Unless the suit is brought with 
 the utmost expedition, before the issuing of the certificate 
 of sale, and unless the issuing of it by the Collector is 
 stayed by temporary injunction under the provisions 
 of the Code of Civil Procedure, the grounds for inter- 
 ference by civil courts are very narrow. In Lala 
 Mobaruk Lai v. The Secretary of State for India in 
 Council,* the majority of the Full Bench of the Calcutta 
 High Court held that non-compliance with the pro- 
 visions of section 6 of Act XI of 1859 ^^'^s not a mere 
 irregularity, and was not one of those errors in pro- 
 cedure, which was intended to be cured by section 8 
 of Bengal Act VII of 1868. But the decision of the 
 Privy Council in the case of Govindlal Roy v. Ram 
 yayiain Misscr^ has thrown considerable doubt as to 
 the correctness of the view taken by the High Court. 
 Purchaser's The title of the purchaser dates from the dav after 
 
 that fixed for the last day of payment,* and not from 
 
 ' Thakoor v. Colleflor, 13 W. R. 533. 
 
 • I. L. R. II Cal. 200. See also B.ilmokoond v. Jirjiidhun, I. L. R. 9 
 Cal. 271, sc, II C. L. R. 466. 
 
 • I. L. R. 21 Cal. 70, sc, L R. 20 I. A. 165. 
 
 • A6t XI of 1859, Sec. aSandSch. A. 
 
 title
 
 BENAMI PURCHASES, III 
 
 the day of the purchase or confirmation of the sale. The 
 purchaser is also liable for instalments of revenue that 
 have fallen due from that day/ The notices under section 
 7 of Act XI of 1859 prohibit payment of rent to the 
 defaulter, the principle being that his right ceases with 
 the default. 
 
 Provision is made in the Act against benami pur- Benami pur- 
 chases, no suit for possession being maintainable against 
 a certified purchaser on the ground of his being a 
 benamidar.' This provision is very similar to the provi- 
 sion contained in section 317 of the Code of Civil Pro- 
 cedure,^ but the plea under this section is not allowed 
 unless the case comes strictly within its words> There 
 is, however, no bar to any of the defaulters purchasing 
 the estate, though he himself has failed to pay his share 
 of the revenue;* but the sale does not avoid incumbrances.^ 
 
 Section 31 of the Act provides for the distribution Distribution 
 
 of the surplus sale-proceeds. It is made payable of sale-pro- 
 
 . ceeds. 
 
 to the recorded proprietor or proprietors or his or 
 
 their heirs or representatives, in shares proportioned to 
 the recorded interest, and if there is no record of shares, 
 the aggregate sum is payable to the whole body of pro- 
 prietors. The mortgagee has the right to recover his 
 money from the surplus sale-proceeds,' when mortgaged 
 lands are sold for arrears of Government revenue which 
 remained unpaid not through his default. An assignee 
 
 ' Aft XI of 1859, Sec. 30; Wazeer v. Fazloonnissa, W. R. (1864) 
 373 ; Khema v. Nund, 4 W. R. 75. 
 
 » Aa XI of 1859, Sec. 36 ; Jadub -v. Ramlochun, 5 W. R. 56, the 
 same case on review, 19 W. R. 189; Johur z). Brindabun, 14 W.R. 10; 
 Chundra v. Ram, I. L. R. 12 Cal. 302 ; Brindabun v. Ram, I. L. R. 21 
 Cal. 375. See also Biswanath v. Moran, W. R. (1864) 353. 
 
 » Aa XIV of 1882. Compare Aa VIII of 1859, Sec, 260. 
 
 * Buhuns V. Buhoree, 10 B. L. R. 159, sc.^ 14 M. I. A. 496; Lucky v. 
 Kali, L. R. 2 I. A. 154. 
 
 * Aa XI of 1859, Sec. 53; Mahomed v. Leicester, 7 B.L.R., Ap., 52. 
 ' Mahomed v. Pearee, 16 W.R. 136. 
 
 ' Aa IV of 1882, Sec. 73 ; Heere v. Janaki, 16 W.R. 223.
 
 Vlt PERMANENTLY SETTLED ESTATES. 
 
 of recorded proprietors is not their representative under 
 the Act.^ The Land Registration Act of 1876 has 
 made registration of the names of proprietors and 
 their respective shares compulsory. ^ No difficulty 
 can arise under the present law, unless death or aliena- 
 tion, very shortly before or after the sale or before pay- 
 .' , ment, brings in complications. If the amount is attached 
 
 under a decree of a civil court or by the Collector himself 
 under the Public Demands Recovery Act, no payment can 
 be made by the Collector himself without compliance 
 
 Limitation in with the ordinary procedure. 
 
 suits for pay- ,^, . . , ., •,! ,i /- n i. 
 
 ment of sur- The amount remains in deposit with the Collector 
 
 plus sale- yj^|.jj jf. jg p^j^ Q^f j^f^(j according to a recent Full 
 
 proceeds. "^ i • j 
 
 Bench decision of the Calcutta High Court, ^ the period 
 
 of limitation as against the Secretary of State for India, 
 
 is six years under article 120 of Schedule II of Act XV 
 
 of 1877. Pigot, J., differed from the majority of the 
 
 Court and was of opinion that the Collector held as 
 
 trustee, and under section 10 of the Limitation Act he 
 
 Laws f ^^^ bound to pay the amount on demand. 
 
 cession and The Ordinary laws of succession amongst Hindus and 
 
 of^regTstra!'^ Mahomedans* are applicable to these permanently settled 
 
 tion of names ggtates except where long established custom or family 
 
 partition. ^^^^^ {kulac/iar), such as is provided for in Regulation X 
 
 of 1800, is found to exist. ^ There being in India no 
 
 territorial law, the succession is in all cases governed by 
 
 the personal law of the holder. Holders of estates 
 
 have free power of alienation not only of the whole 
 
 but also of portions and fractional parts. It was, 
 
 ' Secretary r. Marjum, L L. R. 11 Cal. 359. 
 
 » Cornell v. Oodoy, 8 W.R. 372; Neynum v. Muzuffur, 1 1 W R. 265. 
 See also Doorga v. Shco, I. I.. R. 16 Cal. 194 at App , p. 199. 
 
 • Secretary 7/. Guru, LL.R. 2oCal. 51. See also Secretary v. Marjum, 
 I. L. R. II Cal. 359. 
 
 * lieg. XI of 1793. 
 
 Raja Deedar v. Ranee Zuhooroon, 2 M. I. A. 441 ; Babu Bir v. 
 
 Moharnja, 12 M. LA. i.
 
 REGISTRATION OF PROfRIETORS. 1 I 7 
 
 therefore, absolutely necessary to make rules for the re- 
 cognition of the claims and protection of the interest of 
 persons who have, by inheritance or purchase, right to es- 
 tates or parts of estates, and also for the partition of estates 
 amongst co-owners. One of the objects for enacting Act 
 XI of 1859 is stated in the preamble to be " the expe- 
 diency of affording sharers easy means of protecting their 
 shares from sale by reason of the default of their 
 co-sharers/' 
 
 Regulation XLVIII of 1793 laid down rules for the Registration 
 registration in the Collectorate of the names of proprie- °^ names, 
 tors of estates. This Regulation was followed by Regula- 
 tion XV of 1797.1 The registers were Q^Wtdi quinquennial, 
 as they were required to be prepared every five years. 
 These registers are public documents within the mean- 
 ing of sections 35 and 74 of the Indian Evidence Act. 2 
 The Registration Regulation of 1800 made further pro- 
 visions, ^ but the law as to registration of names in the 
 Collectorate was not strictly enforced until the passing 
 of the Bengal Land Registration Act (VII of i876'. 
 Under this Act, -'A" is the general Register kept by Col- 
 lectors of revenue-paying lands, and the names and 
 addresses of proprietors are required to be kept in it.* 
 Intermediate Registers are also required to be kept for 
 noting changes affecting entries, and part I refers to 
 revenue-paying lands. Sections 38 and 42 of the 
 Act make registration of the names of proprietors or 
 joint-proprietors in possession of estates compulsory, 
 fines being imposed for non compliance with the pro- 
 visions of the Act, and there being a further penalty 
 under section 78 of the Act, as the right to sue under- 
 tenants and raiyats for rent is taken away on failure to 
 
 ' Reg. XV of 1797, Sec. 2. 
 
 - Kasi v. Noor, S. D. 1849, p. 113; Sreemutty Oodoy v. Bishonath, 
 7 W. R 14. Butsee Saraswati w. Dhanpat. I. L. R. 9 Cal. 431. 
 ^ Reg. VIII of 1800, Sec. 21. 
 ' Aa VII (B.C.) 1876, Sec. 8. 
 
 o
 
 shares. 
 
 114 PERMANENTLY SETTLED ESTATES. 
 
 procure registration.^* After the registration of the name 
 of a proprietor under Bengal Act VII of 1876 has been 
 completed, the person whose name is registered may get 
 a mutation of name in the register of toujies or revenue- 
 paying estates in the Collectorate, and he thus becomes 
 a recorded proprietor or a recorded sharer of an estate. 
 Copies of these registers are admissible in evidence.^ 
 
 Separation of A recorded sharer of a joint estate, desiring to pay 
 
 his share of the Government revenue separately, may 
 get a separate account opened, and the separate liability 
 of such recorded sharer commences from the opening of 
 such separate account.^ This rule applies also to holders 
 of shares consisting of specific portions of the lands of 
 an estate.* The power of the Collector, however, to 
 open a separate account is restricted to cases where no 
 objection is made by any other recorded proprietor. On 
 an objection being made, the Collector xj, to refer the 
 parties to the Civil Court.* 
 
 Sales of sepa. The rules for the realization of revenue and for sale 
 
 on non-payment thereof applicable to entire estates 
 are also applicable to separated shares, except that if 
 the highest offer for the share exposed '^^ to sale be not 
 equal to the amount of arrear due, the Collector is 
 required to give notice to the other sharers, and if the 
 amount due be not paid within ten days from the date 
 of notice, the entire estate may be sold after due publica- 
 
 rated shares. 
 
 ' Surya v. Herpant, I. L. R. i6 Cal. 706; Dhoronidhur v. Wajidun- 
 nissa, I. L. R. 16 Cal. 708 (note). 
 
 ♦ An administrator to the estate of deceased proprietor is also bound 
 to have his name registered before bringing a suit for rent — Mcintosh 
 
 V Jharu, 1. L. R. 22 Cal. 454. 
 
 " Slioshi V. Girish, I. L. R.;20 Cal. 940. See also Ram v. Jebli, I.L R. 
 8 Cal. 853; Saraswati v. Dhanpat, I. L. R. 9 Cal. 431, sc, 12 C. L. R. 
 12 dissented from. 
 
 » A5t XI of 1859. See. 10 ; Rajendro v. Doorga, 7 W. R. 154. 
 
 ' Aa XI of 1859, y^'C ' ' ; Gour v. Tara, 6. W. R. 217. 
 
 » Aa XI of 1859, Sec. 12
 
 PARTITION OF ESTATES. II5 
 
 tion of notice. The payment by a sharer, if made within 
 ten days, has the effect of a purchase of the share in 
 arrear, and such sharer may obtain a certificate of sale and 
 delivery of possession under the Act. A purchase thus 
 made by a co-sharer is considered to have all the inci- 
 dents of a sale under the Act, and it is subject to the 
 same rules as to annulment of the sale and avoidance of 
 encumbrances as ordinary sales of shares under the Act.' 
 
 The partition of estates by the Collector gives the Partition of 
 sharers complete security, and the shares carved out by ^^ ^ "* 
 such partition have all the advantages of a parent estate, 
 each partitioned share being recognised as an estate. It 
 is supposed that complete security for the realization of 
 Government revenue requires that partition should be 
 efTected by a revenue-officer or, at least, that he should 
 sanction the same. The civil courts in the country have 
 the power to pass decrees for partition after ascertain- 
 ment of the shares of the parties interested,' but actual 
 partition cannot be effected except by the Collector.^ A 
 private partition may be binding on the parties but not 
 the Government, unless special sanction of the Collector 
 is obtained. But if the division of the lands of any 
 estate has been made by private arrangement, and each 
 proprietor is in possession of separate lands in accord- 
 ance with such arrangement, the Collector has no power 
 to interfere at the instance of any one or more of 
 the co-sharers*. A joint application must in such a 
 case be made by all the co-sharers.^ The jurisdiction 
 
 ' A6i XI of 1859, Sees. 14 and 53; Gossain v. Ishri, I.L R. 21 Cal. 844. 
 
 « Aa VIII (B.C.) of 1876, Sec. 29; Aa XIV of 1882, Sees. 265 
 and 396 ; Mohsun v. Nuzum, 6 W.R. 15 ; Ramjoy v. Ram Runjun, 8 
 C. L R. 367. 
 
 ' Spencer v. Puhul, 15 W. R. 471 ; Meherban v. Behari, I.L.R. 23 
 Cal. 679. 
 
 * Aa VIII of 1876, Sec. 12 ; Bujrungee v. Syud, 5 W.R. 186. 
 
 * Aa VIII (B.C.) of 1876, Sees. loi, 105 ; Joymonee v. Imam, 13 
 W. R. 471.
 
 Il6 PERMANENTLY SETTLED ESTATES. 
 
 of the Collector is not, however, excluded, unless it be 
 shown that separate possession of the lands is due to a 
 special arrangement effecting partition, and unless all the 
 lands are held in severalty and no part is held jointly.^ 
 The mere possession of specific portions of land is not 
 enough to oust the jurisdiction of the Collector. Of 
 course, a presumption of arrangement may be made from 
 long possession. But as regards lands originally waste, 
 the mere occupation and cultivation by co-sharers 
 separately may rebut the presumption arising from long 
 possession. Extreme inequality of lands, disproportion- 
 ate to the share in the possession of each co-sharer, may 
 also rebut such presumption. 
 Persons not No person having a proprietary interest in an estate 
 
 entitled to r . r i • i-r i • i-^i j j i • ■•.• 
 
 partition. *°'' ^ term ot his life only is entitled to claim a partition 
 
 by the Collector.'^ It should be remembered that it is op- 
 tional with the Collector, according to the circumstances 
 of each case, to allow a partition to the holder of a life- 
 estate. A Hindu widow and other Hindu females holding 
 under the same sort of right as that of a Hindu widow 
 are not, however, tenants for life ; they are entitled to 
 claim partition by the Collector.^ The Civil Courts may ex- 
 ercise their discretion in any suit for partition by a female 
 having only a Hindu widow's estate, though the better 
 rule seems to be that partition should always be allowed. 
 
 Estates not There can be no partition by the Collector where the 
 
 partible by separate estate of any of the proprietors would, on parti- 
 Collector. "^ , ■' r I ' V 
 
 tion, be liable for an annual amount of land-revenue not 
 exceeding one rupee.* This rule prevents, in most 
 casr-s, the partition of small estates by the Collector ; 
 but, perhaps, a Civil Court may decree partition though 
 
 ' Aa VHI (B.C ) of 1876, Sec. 13 ; Door^a v. Radlvi, 7, W. R 51 : 
 Joy V. \.A\, I, L R.SCal. \26.sc., 10 C. L. R. 146 ; Kaliipw. Lnia, \. L. R. 
 16 Cal I 17. See also Hridoy v Mohnbut. I. L. R. 20 Cal. 285. 
 
 •' Aft VIII (B.C) of 1876. Sec. 10. 
 
 » Mohadcay r llaruk, 1 1 C.F. R. 540, sc, I.I, R. 9 Cal. 244 
 
 ' Aet VIII (BC) of 1876, Sec. 11.
 
 PARTITION OF ESTATES. 11? 
 
 the apportionment of revenue will not be binding on 
 the Collector/ 
 
 If the Revenue officers refuse on insufficient grounds Jurisdiaion 
 to direct the partition of an estate, any party aggrieved Courts 
 may sue in a civil court for a decree for partition.* 
 A party may also, before applying to the Collector, 
 ask a civil court to declare the rights of the several 
 co-sharers and to direct the Collector to effect a 
 partition.^ But no civil court can direct a partition 
 by the Collector, if the revenue payable by any sharer 
 for his share be less than one rupee. On a decree by 
 the civil court for partition, the successful plaintifT may 
 apply to the Collector for actual partition. A civil 
 court may also, during the pendency of partition pro- 
 ceedings before the revenue authorities, declare the 
 shares of the parties,* and even after partition declare 
 the respective shares of the parties which may be 
 different from their recorded shares in the partition 
 proceedings, but cannot, after a partition already made, 
 modify the allotment made by the revenue authorities.' 
 
 There is now a conflict of cases as to the jurisdiction of Conflift of 
 civil courts in the matter of the actual partition of estates 
 by metes and bounds. Division of the lands of an estate 
 by metes and bounds, accompanied by a proportionate 
 division of the revenue binding on the Government, is 
 
 ' Ranee ■z;. Kooer, 20 W. R. 182; Kalee v. Ram, 24 W. R. 243; 
 Chunder 7>. Hur, I. L R. 7 Cal. 153 ; Ajoodhya v Colleftor, I. L. R. 9 
 Cal. 419 ; Zahrun v. Gowri, I. L. R. 15 Cal. 198 ; Debi v. Sheo, I. L. R. 
 16 Cal 203. See also Dcorga t). Mohesh, 15 W. R. 242; Spencer v. 
 Puhul, 15 W. R. 471 : Rutten v. Brojo, 22 W. R. 11. 
 
 - AaVIII (B.C.^ of 1876, Sec. 29; AaXIV of 1882, Sec. 265; 
 Secretary v. Nundun, I. L. R. 10 Cal. 435. 
 
 ^ Aa VIII (B.C.) of 1876, Sec. 26 ; Dewan v. Jebunnissa, 16 W.R. 34 ; 
 Mussamat v. Woman, 3 C L. R. 453 ; Meherban v. Behari, I. L. R. 23 
 Cal. 679. 
 
 * Muddun v. Kartick, 14 W. R. 335 ; Sheo v. Sunkur, 16 W. R. 190 ; 
 Oodoy V. Paluck, 16 W.R. 271. 
 
 ^ Spencer v. Puhul, 15 W. R. 471 ; Sharat v. Hur, I. L. R. 4 Cal. 510. 
 
 cases.
 
 'iS PERMANENTLY SETTLED ESTATES. 
 
 complete partition, and the revenue authorities have exclu- 
 sive jurisdiction to effect such complete partition. But 
 partition may be incomplete in two ways, — there may be 
 a division of the lands and a proportionate division of 
 the revenue without th^^ sanction of and recognition by the 
 revenue authorities, the liabilities of the sharers being de- 
 termined as amongst themselves, and there may be a 
 division of the lands only, the liability as to revenue re- 
 maining joint. Have civil courts in the country jurisdic- 
 tion as to either of the latter modes of incojuplete parti- 
 tion ? The question must be settled either by a Full 
 Bench of the High Court or by the Legislature. 
 
 Jurisdiaion Xhe first important Regulation as to the procedure to 
 
 of Collec- ^ *' , , r /- n 
 
 tors. be followed in the partition of estates by the Collector 
 
 was XIX of 1814. The present Act VIII (B.C.) of 1876, by 
 which Regulation XIX has been repealed, is somewhat 
 elaborate and removes many of the difficulties that must 
 necessarily attend a partition by the Collector. I under- 
 stand that it is in the contemplation of the local Govern- 
 ment to introduce a bill to amend Act VIII (B.C.) of 1876 
 with a view to simplify the procedure as to partition by 
 the revenue authorities. It seems to me, however, to be an 
 anomaly — a survival — thatwhile the civil courts in Bengal 
 have exclusive jurisdiction in the partition of all kinds of 
 immovable properties, there should be special courts and 
 a special procedure for the partition of revenue-paying 
 estates The existence of the Estates Partition Act in 
 the statute book of Bengal indicates a want of confidence 
 of the State in its civil courts, where its own interest is 
 concerned. There is no reason to suppose that the Gov- 
 ernment would suffer, if the apportionment of revenue 
 be left to be determined by the judicial procedure 
 adopted in civil courts. The exclusive jurisdiction of 
 the Collector often requires, as we have seen, to be sup- 
 plemented by the interference of civil courts. Various 
 questions, which can only be determined by civil courts, 
 do frequently arise on an application for partition and
 
 JURISDICTION AND PROCEDURE. II9 
 
 during the course of partition-proceedings, and litigants 
 in this country are unnecessarily harassed by being 
 compelled to have recourse both to the Revenue officers 
 and Civil judges, when one and the same tribunal may, 
 by the framing of proper rules of law and procedure, 
 be made to perform the same duties. A partition by 
 a Collector is necessarily one which cannot be, and is 
 really not, equitable in the sense in which an English 
 lawyer would use the word. If there are four estates 
 belonging to two proprietors jointly, the Collector 
 would require four separate applications, and there 
 must be four separate proceedings, and each estate 
 must be divided into equal moieties. But if the civil 
 courts have jurisdiction, they may allot two of these 
 estates to one of the joint proprietors, two others to 
 another, equalizing the partition by payment of owelty ; 
 and all this may be done in a single suit. They may also 
 allot two of these estates to one, a third to another, and 
 divide the fourth between the two. The complications 
 which arise from the existence of subordinate tenures, 
 the holders of which have not the right to be heard by 
 the revenue authorities, may also be avoided by the civil 
 courts being allowed jurisdiction. It is now freely admit- 
 ted, and, in fact, it is pointed out as a gross mistake of the 
 Permanent Settlement of Bengal, that profits of holders 
 of estates, are nearly ten times the revenue which the 
 Government realizes from them. Financiers have, there- 
 fore, no reason to suppose that the realization of the 
 land tax to the last copper piece will be jeopardized by 
 small inequalities in value and dimension of land, result- 
 ing from a partition by a civil court. The proverbial 
 delay and cost in Butwara proceedings, even with the 
 procedure laid down by Bengal Act VII of 1876, which 
 has repealed the Regulation of 1814, may also be 
 avoided to a considerable extent by partition by commis- 
 sioners appointed under the Code of Civil Procedure. 
 1 would not detain you with a recital of the proced-
 
 120 
 
 PERMANENTLY SETTLED ESTATES. 
 
 Procedure as ure for partition of estates. Part of the duty to be 
 to partition. performed in these proceedings may be done by the 
 Deputy Collectors, others and the more weighty ones 
 are left to the Collector himself, and only the Collector 
 may declare an estate to be under partition/ In most 
 matters an appeal lies to the Commissioner of Revenue, 
 and in some to the Board of Revenue, and the Board 
 may always exercise its revisional powers. Partition by 
 the Collector is usually the separation of the share of the 
 applicant by allotting to him a proportionate share of the 
 land, and not the separate allotment to all the sharers of 
 their respective shares, unless the other sharers also ask 
 for partition of their shares. The parties may, at any 
 time, cause proceedings to be stayed by consent -^^ and 
 the Commissioner may also stay proceedings, and, if need 
 be, quash them.^ Confirmation of partition by the Com- 
 missioner is necessary to give it validity.* But the Lieu- 
 tenant-Governor may within twelve years set aside any 
 allotment and direct a fresh allotment, if it appears that, 
 through fraud or error, the land revc nue assessed on any 
 share is not in proportion to the lands allotted* Each 
 separate estate formed by partition bears a separate 
 number in the revenue-roll of the district, and is 
 separately liable for the land-revenue assessed upon it.'^ 
 
 Estates are exempted from liability to sale under the 
 sale-laws in cases of disqualified proprietors, and in cases 
 of attachment by revenue authorities or management by 
 a revenue officer. The properties of minors, idiots, 
 lunatics and disqualified proprietors require peculiarly 
 the protection of the sovereign. The Hindu law recog- 
 nised the king as the supreme guardian of the property 
 of all minors.' This is in accordance with the law 
 
 Estates 
 exempted 
 from sale for 
 arrears, 
 
 ' Aa VIII (B.C.) of 1876, Sec. 33. -Aa VIII. (B.C. of 1876, Sec. 35. 
 ■' Aa Vlil. (B.C.) of 1876, Sec. 36 ' Aa VIII (B.C.) of 1876, Pt IX. 
 '■' Aa VIII. (B.C.) 1876, Sec 132. '■ Aa VIII. (BC.) of 1876, Sec 1 25. 
 ' Tagore Leaurers 1877., p. J7, and the authorities cited therein. See 
 Manu, VIII., 27.
 
 DISQUALIFIED PROPRIETORS. 1 3 I 
 
 in all civilized countries, it being a prerogative of the Estates of 
 Crown, flowing from its general power and duty, as nunofs&c.ex- 
 
 , ^ "^ empted from 
 
 parens patrise, to protect those who have no other revenue-sale. 
 lawful protector\ The Mahomedan law also enjoined 
 the Quazi to exercise vigilant supervision over guardians 
 in the management of their wards' properties,* as he 
 is the representative of the government of the sultan. In 
 England, this jurisdiction was exercised by the Court of 
 Chancery. Provision was made by the Regulation Code 
 of 1793^ for the protection of the estates of minors 
 and other disqualified proprietors — idiots, lunatics and 
 others incapable of managing estates on account of 
 natural defects or infirmities. Females incapable of 
 managing their estates were also declared to be disquali- 
 fied proprietors.* Regulation X of 1793 provided for 
 the establishment of the Court of Wards, and made rules 
 relative to disqualified landholders and their estates. 
 The Proclamation declaring the Decennial Settlement 
 Permanent exempted the estates of disqualified proprie- 
 tors from liability to sale for any arrears accruing 
 during the period of their disqualification.^ The sale- 
 laws, passed from time to time, made similar pro- 
 visions in favour of minors. The sale-law of 1859 
 provided — " No estate shall be liable to sale for the 
 recovery of arrears which have accrued during the 
 period of its being under the management of the Court 
 of Wards ; and no estate, the sole property of a minor 
 or minors and descended to him or them by the regular 
 course of inheritance, duly notified to the Collector for 
 the information of the Court of Wards, but of which the 
 Court of Wards has not assumed the management under 
 Regulation VI of 1822, shall be sold for arrears of 
 
 ' Story's Equity Jurisprudence, Sec. 1333. 
 ' Ameer Ali's Mahomedan Law, p. 572. 
 
 ' Reg. VIII. of 1793, Sec. 21. ' See Reg. I of 1793, Sec. 8, cl. 5. 
 « Reg. XIV of 1793, Sec. 48; Reg. VI of 1822, Sec. 4. 
 P
 
 Hi PERMANENTLY SETTLED ESTATES. 
 
 revenue accruing subsequently to his or their succession 
 to the same, until the minor or minors, or one of them, 
 shall have attained the full age of eighteen years. "^ The 
 age of majority of infants under the Court of Wards 
 and of those whose properties are under the manage- 
 ment of civil courts is now twenty-one years.* The 
 present Court of Wards Act is Bengal Act IX of 1879, 
 as amended by Bengal Act III of 1881, and the present 
 law relating to infants who are not under the Court of 
 Wards is Act VIII of 1890. The protection from sale of 
 estates belonging to minors, as contained in section 17 
 of Act XI of 1859, is "ow given by section 4 of Bengal 
 Act III of 1881, which has repealed the words of section 17 
 of Act XI of 1859 I have quoted above. The present law 
 as to the liability of the estates of minors to sale for arrears 
 may be thus summarised : — (a) Every estate or a separat- 
 ed share of an estate is exempt from sale for arrears of 
 revenue which have accrued, while it has been in charge 
 of the Court of Wards ; ® but it may at any time be 
 sold for such arrears, if the Court of Wards certifies in 
 writing, with its reasons, that the interest of the ward 
 requires that it should be sold under the sale-laws.* 
 [d] — All unpaid arrears of revenue accruing during the 
 period of the management by the Court shall be a 
 first charge upon the sale-proceeds, if the estate or share 
 of an estate be sold for any other cause than for such 
 arrears of revenue ; and if any arrears remain due, when 
 the estate ceases to be under the charge of the Court, the 
 Collector may attach' it for the arrears and incidental 
 costs, 'c) — In case of minors, not brought under the Court 
 of Wards, no estate, the sole property of a minor or of 
 two or more minors, shall be sold for arrears of revenue 
 
 ' Aa XI of 1859, Sec. 17. " Aa IX of 1875, Sec. 3. 
 
 •' Aa IX (B. C.) of 1879, Sec. 23, cl. 1. 
 ' A6t IX (B. C.) of 1879, Sec. 23 A. 
 » Aa IX (B. C.) of 1879, Sec. 23, cl. 2.
 
 ESTATES EXEMPTED FROM SALE. 12^ 
 
 accruing subsequent to the succession, until the com- 
 pletion of the age of majority, if the Collector has been 
 served with a written notice of the fact that the estate 
 is the sole property of the minor or minors ;i but such 
 arrears shall be the first charge on the proceeds of the 
 estate, if it is sold for any other cause during the minor- 
 ity ; and the estate is also liable to be attached by the 
 Collector. 2 Under the Court of Wards Act, the Board of 
 Revenue is the Court of Wards, ^ but the Collectors and 
 the Commissioners do the actual work through managers 
 appointed by the Court. The Revenue Officer is thus the 
 payer as well as the receiver of revenue, and I think it 
 is an anomaly for the same individual, who is the receiver 
 as well as the payer of money, to sell the property of an 
 infant under his custody for non-payment of such money. 
 
 While OH the subject of exemption from sale for Estates under 
 arrears of revenue, I may add that, under the unre- ^f^R^^^;^^^^"^ 
 pealed provisions of section 1 7 of Act XI of 1859, "*^ Officers. 
 estate held under attachment by the Revenue authorities, 
 otherwise than by order of a judicial authority, is 
 liable to sale for arrears accruing whilst it is so held 
 under attachment ; and similarly an estate held under 
 attachment or managed by a Revenue Officer in pursu- 
 ance of an order of a judicial authority is not liable to be 
 sold until after the end of the year. But the mere issu- 
 ing of a certificate of attachment does not operate as an 
 attachment by the Collector. 
 
 Besides the payment of revenue and cesses by the Liability to 
 holders of permanently settled estates, there are duties of vmoti^ &c.to 
 minor importance which the Government has imposed on the army, 
 them. The liability to supply provisions to the army is 
 one of these. Regulation XI of 1806 made provision for 
 compelling landholders and farmers of estates to supply, 
 
 » Aa IX (B. C.) of 1879, Sees. 24 and 25. 
 « Aa IX (B. C ) of 1879, Sec. 24. 
 ' Aa IX (B C.) of 1879, Sec. 5.
 
 124 PERMANENTLY SETTLED ESTATES. 
 
 for troops passing through their estates, the required 
 provisions, boats and coolies. Regulation VI of 1825 
 made further provisions for compelling zemindars to 
 provide supplies, boats, &c., the penalty for default 
 being fine not exceeding one thousand sicca rupees.^ 
 Liability to The duty of giving information of the commission 
 
 fi'ono "certain ^^ Certain offenccs within the ambit of the estate, 
 offences. especially, offences regarding the manufacture of salt, 
 
 offences with respect to the excise-law and certain 
 serious offences under the Indian Penal Code, has been 
 imposed upon zemindars as a matter of necessity. 
 By the Settlement Regulations^ the zemindars were 
 disburdened of their police and magisterial duties. But 
 the duty of sending reports to police officers and magis- 
 trates has continued to be on them, ,nnd the native 
 officers of landholders are also responsible. These 
 provisions are now embodied in section 154 of Act XLV 
 of i860 and section 45 of Act X of 1882. 
 Compensa- On the acquisition of lands which are revenue-paying, 
 
 tion on acqui- the basis for calculating the amount of compensation is 
 
 sition ot lands _ '^ t^ 
 
 for public the actual price for which the land, subject to the burden 
 pvirposes. ^j payment of land-revenue, would sell in the market. In 
 
 determining the amount of compensation, the Collector 
 has to determine the exact amount of land-revenue pay- 
 able for the land, the subject of acquisition. The pro- 
 cedure that should be followed by Collectors in ascertain- 
 ing the amount of revenue payable for lands under ac- 
 quisition is laid down in the rules promulgated by the 
 Government of Bengal under section 59 of Act X of 
 i870,'' and these rules have remained unaltered after the 
 passing of Act I of 1894. The market value being de- 
 t'rmined after deduction made for Government revenue, 
 no question of apportionment can arise between the 
 
 ' Reg VI of 1825, Sec. 2. 
 
 « Reg. VI of 1810 ; Reg I of 181 1, Sec. 10 ; Reg. Ill of i8i2, Sec. 4 5 
 Reg. VIII of 1814 ; Reg. Ill uf 1821, Sec 7. 
 ' Calcutta Gazette, 7th July, 1875, p. 880.
 
 MALIKANA. 1*5 
 
 Government and the claimant for compensation. None 
 of the Land Acquisition Acts laid down definite rules 
 as to abatement of government-revenue, but the rules 
 made under section 55 of the Act of 1894 Act of 1870, 
 Sec. 59) have the force of law, if the sanction of the 
 Governor-General in Council be obtained. Under the 
 above rules, the Collector, after the determination of the 
 amount of revenue payable in respect of the land ac- 
 quired, should grant remission to that extent to the 
 holder of the estate. But if the area of the land acquired 
 does not exceed one-twentieth of the area of the entire 
 estate, and the claimant the proprietor, declines to 
 accept abatement of revenue, the Collector may pay 
 an additional sum calculated at the same number of 
 years' purchase of the government revenue as is the 
 basis of calculation of the rest of the amount of com- 
 pensation paid. When abatement is allowed, it has 
 effect from the date of the possession taken by the 
 Collector of the land acquired. 
 
 I shall now say a few words on the right known Malikana. 
 as malikana. It is an allowance for proprietary right 
 to a person who was owner or proprietor. The rules 
 making the Decennial Settlement Permanent directed 
 that the proprietors, who might finally refuse to enter 
 into engagements for the amount of revenue required 
 of them, should be allowed malikana, in consideration 
 of their proprietary rights, at the rate of ten per cent, 
 on the revenue, if the lands were let in farm. The 
 amount of the malikana was payable by the farmer to 
 the proprietor," in addition to the amount payable to the 
 Government as revenue, in instalments according to the 
 instalments of government-revenue. The Collectors were 
 to realise the malikana in the same way as Govern- 
 ment revenue, and the Government guaranteed the 
 amount to the proprietors. In the event of the land 
 being held khas by Government, the inalikana was 
 payable by the Collector at ten per cent, on the net
 
 126 PERMANENTLY SETTLED ESTATES. 
 
 collections, after defraying the malikana and other 
 charges.^ In Bengal proper, instances of payment of mali- 
 kana by Government or any farmer are very rare, except 
 in cases of recent temporary settlements, specially of 
 lands gained by accretion and assessed under Act IX of 
 1847. Grants of malikana are largely to be found in Behar. 
 Rates of Regulation VII of 1822, enacted for the Ceded and 
 
 malikana Conquered Provinces and Cuttack, rescinded " all pro- 
 
 visions in the then existing Regulations regarding the 
 allowance " known as rnalikana?' As we have already 
 seen, this Regulation was extended to all the other pro- 
 vinces in Bengal by Regulation IX of 1825. Under these 
 Regulations, the rate of malikana was required to be 
 fixed by the Board of Revenue, but the rate was not 
 to be under five nor above ten per cent, unless there 
 was a special sanction of Government for a higher rate. 
 The highest amount of revenue tendered by a farmer 
 was the basis of calculation, and, when no tender was 
 made, the net realisation of the previous year.^ But the 
 rules laid down in these Regulations had only pros- 
 pective effect* and did not affect malikana-holders 
 who were entitled io malikana mw^&x Regulation VIII 
 of 1793. 
 Malikana is Malikana is a distinct proprietary right and is an 
 
 not rent. interest in land. But it is not rent, nor has it the 
 
 elements which constitute the idea conveyed by the word 
 ' rent.' A suit for malikana is a suit for money charged 
 upon immovable property*, and the period of limitation 
 
 ' Rejr. VIII (jf 1793, Sens. 44 to 47. " Reg VII of 1822, Sec 5, cl. I. 
 ' Reg. VII of 1S22, Sec. 5, els 2 and 3. 
 
 * Reg. IX of 1833, Sec. 11. 
 
 * Mussatnut v Baboo, 7 W.R. 336; Herranund v. Mussamnt, 9 W.R. 
 102; Budtirul v Court of Wards, 10 W R. 302; Rhoobee v. Mussamnt, 
 4 B. L R 29, sc , 12 W. R. 46; Bhoalce v. Muss.qmut, 12 WR.498; 
 Mussamut 1^. Mussamaiit, 13 WR 465; Gobind t/. Ram, 19 W. R- 9t; 
 Kristo 7/ Shama, 22 W. R 520: Hurmiizi v Hirday, \.\. R 5 Cal 921 ; 
 Gopi V. Bhugwat, I. L R. 10 Cal 697. And see Government v. Rhoop, 
 2 W. R. 162; Hcernnund v. Mussamut, 6 W. R. 151.
 
 CONTRIBUTION, 1 27 
 
 IS twelve years from the time when the money sued for 
 becomes due/ 
 
 Notwithstanding the direction contained in sec- Suits for re- 
 tion 46 of Regulation VIII of 1793 for the realization of malikana. 
 malikana-allowance by the Collector from the farmers, 
 suits for recovery of malikana are maintainable. The 
 High Court at Calcutta at onetime doubted whether such 
 a suit would lie, having regard to the provisions of section 
 46 of the Regulation.'^ But the express provisions in the 
 later Limitation Acts contemplate such suits, and not- 
 withstanding the doubt thrown out, such suits have al- 
 ways been allowed. 
 
 The relative duties and obligations of the joint Contribution 
 holders of an estate deserve a few words. I have already oJJnerYor' 
 given you a summary of the legislative enactments as estates. 
 to the rights of co-sharers of permanently settled estates 
 in relation to Government. As between themselves, 
 they have rights and obligations of complicated charac- 
 ter, which it will be difficult to narrate in the com- 
 pass of this lecture. I draw your attention only to 
 what may be said ^?^^.y/-contracts arising out of pay- 
 ment of government-revenue and similar other dues 
 for the protection of the estate. The law is laid 
 down in the Contract Act (IX of 1872).^ It was at 
 one time understood that a co-sharer, paying into the 
 Collectorate the amount of revenue due from another 
 co-sharer for the protection of the estate and conse- 
 quently of his own share also, was entitled to a charge * 
 on the share thus protected by him ; and the case of 
 Nugender Chunder Ghose v. Kammee Dossee,^ already 
 cited, was considered as an authority for the proposition. 
 
 ' Aa XV of 1877, Sch. II, Art. 132 ; Aa IX^of 1871, Sch. II, Art. 132, 
 
 * Bhuli V. Mussamut, 4 B. L. R. 29. 
 
 * Aa IX of 1872, Sees. 69 and 70. 
 
 ^ Nobin V. Rup, 1. L R. 9 Cal. 377, sc, 11 C. L. R. 499, sc, 11 
 
 M. I. A. 452. 
 
 " 8 W. R., P. C, 17, sc, 1 1 M. I. A. 241.
 
 laS PERMANENTLY SETTLED ESTATES. 
 
 But the earlier decisions^ based on the dictum of the 
 Judicial Committee, have been overruled by the Full 
 Bench decision in the case of Kinu Ram Das v. Mozaffer 
 Hosain and others?' The rule laid down in this case 
 by the majority of the Full Bench, that there is no lien 
 created by the advances made by a co-sharer, is in con- 
 flict with the decision of some of the other High Courts 
 on the same subject. It seems to be extremely hard, 
 that a co-sharer should have no security for the ad- 
 vances made by him which have saved the property 
 from sale. The case of a mortgagee is distinctly 
 provided for in the Sale Laws^ and the Transfer of 
 Property Act.* The Bengal Tenancy Act,* which con- 
 tains the latest ideas of our lawgivers on the rights of 
 co-sharers, gives to the advances made by a co-sharer 
 priority over every other charge. The attention of the 
 Legislative Council has been drawn to the mischief 
 caused by the exposition of the law by the majority of 
 the judges of the Calcutta and the Allahabad High 
 Courts, and I hope remedy will soon be provided for. 
 Common Disputes between co-owners very frequently cause 
 
 managers. inconvenience to the public and injury to private rights. 
 In t8i2 provision had to be made to prevent the mischief 
 arising out of such disputes, and the Revenue author- 
 ities or any one of the co-owners or other persons 
 interested in an estate could apply to the District Judge 
 having jurisdiction for the appointment of a common 
 manager and to remove such manager when appointed.* 
 Regulation V of 1827 empowered the District Judge to 
 
 '{Syed Enayet ?». Muddunmoonee, 14 B. L. R. 155, sc , 22 W. R. 
 411 ; Nol)in;7'. Riip, I L R. 9 Cal. 377. 
 
 M. L. R. 14 Cal. 809. See also Acbnt 11. Hari, I. L. R n Bom. 313; 
 Seth V. Shib, I. L. R. 14 All 273 ; Kristo v. Kali. I L R. 8 Cal. 402 — 
 In re Leslie, L. R. 23 Chan. Div. 552. 
 
 ' Aa XI of 1859, Sec. 9 ' Aa IV of 1882. Sees 72 and 73. 
 
 > Aa VIII (B C) of 1885, Sec. 171. 
 
 " Reg. V of 181 2, Sec. 26. See Gooroo v. CoUeaor 19 W. R 170 ; 
 Ramrunginee v. Gooroo, 22 W. R. 212.
 
 COMMON MANAGERS. 1 29 
 
 direct the Collector to hold an estate under his manage- 
 ment through a manager. Frequent disputes amongst 
 co-owners required the passing of definite rules for the 
 appointment and removal of common managers, and 
 the Bengal Tenancy Act (VIII of 1885) accordingly 
 made provision for the appointment of a common 
 manager '' on the application of the Collector or of any 
 person interested in the estate in case of inconveni- 
 ence to the public, or on the application of a recorded 
 CO owner in case of injury to private rights.''^ The 
 District Judge is, in such cases, directed to issue 
 notices upon the co owners to shew cause why a com- 
 mon manager should not be appointed, and on their 
 non-appearance or failure to shew cause, or on their 
 failure to appoint a common manager within the time 
 that may be fixed for the purpose, the District Judge has 
 the power to appoint a common manager or to place the 
 estate in the hands of the Court of Wards, if the Court 
 consents to accept the charge. The District Judge has 
 also the power to restore the management to the co- 
 owners, if he be satisfied that the management will be 
 conducted by them without inconvenience to the public 
 or injury to private rights.- The order of a District 
 Judge for the appointment of a common manager is not 
 appealable^ to the High Court as a decree. But the 
 High Court has the power of revision under section 622 
 of the Code of Civil Procedure.* 
 
 Various questions may and do constantly arise 
 between the proprietors of different estates, many of 
 which are highly complex. Survey and demarcation of 
 estates are fertile sources of dispute. Alluvial accre- 
 tions and reformations in site are constant sources of 
 
 ' Aa VIII (B. C.) of 1885, Sees. 93 to 96. 
 « Aa VIII (B. C.) of 1885, Sec. 99. 
 
 ^ Hossaen v. Mutook. I. L. R. 14 Cal. 312; Abdul v. Krishna, I.L.R. 
 20 Cal. 704. 
 
 ^ Ganoda v. Prabhabati, I. L. R. 20 Cal. 881, 
 
 Q
 
 13© PERMANENTLY SETTLED ESTATES. 
 
 litigation in the alluvial delta of the Ganges. It will 
 be impossible within the limits of these lectures to deal 
 with the various r;imiiications of the law with reference 
 to these matters, 
 '^^''^'^s I shall close this lecture with a few words on in- 
 
 dependent taluqs. At the time of the Decennial Settle- 
 ment of the Bengal provinces, there was a large number 
 of land-holders known as taluqdars, and their holdings 
 were known as taluqs} Ihe word taluq is Arabic in 
 origin and means '' some thing hanging or dependent.* 
 The term is applied to various intermediate holdings 
 differing in their incidents, but in Bengal it is more fre- 
 quently used with reference to lands held under zemin- 
 dars or lands originally carved out of zemindaries. 
 Independent The Settlement and Resumption Regulations of the 
 
 estates^'^^ Bengal code divided the then existing taluqs into two 
 
 classes, and called them either independent [hazuri or 
 khariji), or dependent {mazkuri, shikmi or shamilat). 
 We have already seen* that the Government recognised 
 the independent taluqdars^ in the Decennial and Perma- 
 nent Settlements, as actual proprietors of land, and 
 they were allowed to enter into direct engagements 
 at fixed sums of revenue payable in perpetuity into the 
 Collector's treasury.* These taluqs, as well as those 
 subsequently created under the rules laid down in the 
 Resumption Regulations, to which I have already refer- 
 red,' have the same incidents of law as zeinindaries^ 
 and I Ik taluqdars have the same rights and obligations 
 in relation to the State. Regulation VI 11 of 1793 laid 
 down distinct rules for the guidance of Collectors for 
 separate settlement with independent taluqdars.^ A 
 
 ' For ihe origin and history of Rengfll T.iluqdars, see Tajjore Le£\ures 
 fur 1874-75, pp. 149-158 iind Land Revenue .Systems by Mr. Baden 
 Powell, p. 223. 
 
 ' Itilroduftion to the Bengal Regulations by C. D. Field, p. 30 
 
 ' Ante p. 94. ' Ret; \'II! of 1 793, Sees. 13, 14. 
 
 ' Ayitc pp. 73-4. • Reg. 1 of 1801, Sec. 14.
 
 INDEPRNDENT TALUQS. I31 
 
 large number of taluqs was thus separated and recog- 
 nised as estates before the year 1802. In the year 1801, 
 a Regulation was passed to fix a period for applications 
 for separation of taluqs as independent^ and it was laid 
 down " that all taluqdars who might deem their lands 
 entitled to be separated from the zemindaries which 
 included them must make their applications within one 
 year from the 15th January 1801, the date of the passing 
 of the Regulation ; otherwise the claim to separation 
 would l)e barred.'" This law has put a stop to the re- 
 cognition of independent taluqs as estates, except those 
 that have been created under the rules laid down in 
 Regulations XIX and XXXVII of 1793 and II of 1819. 
 
 The distinction between independent and depen- 
 dent taluqs was at one time of considerable importance, 
 but the sections of Regulation VIII of 1793 dealing with 
 them have now been repealed as obsolete.* 
 
 ' Reg. VIII of 1793, Sees. 10, 11. 
 - Repealing Aft XVI of 1874.
 
 LECTURE Y. 
 
 PERMANENT TENURES. 
 
 (TALUQS). 
 
 Dependent Between the zemindars and persons actually occupy- 
 
 taluqs, ing the lands of an estate, there were, at the dates of the 
 
 Decennial andthe Permanent Settlements, a large number 
 of intermediate holders who paid to the former fixed 
 sums in perpetuity ; and their number has since largely 
 increased. Most of these tenures are known by the 
 name of taluqs. Those existing at the Decennial Settle- 
 ment and not recognised as estates [independent taluqs) 
 and those created by proprietors of estates after the 
 date of the Settlement, the revenue payable for them 
 not being separated and separately recorded in the 
 Official Registers of Collectors as estates or shares of 
 estates, are said to be dependent"^ , and the holders of the 
 taluqs are called taliiqdars. 
 
 I propose to deal first with the taluqs existing at 
 the time of the Decennial Settlement. They may be 
 classed : — -{n Taluqs "for which the revenue was paid 
 through zemindars and the title deeds in respect of 
 which contained a stipulation that it should be so 
 paid,"^ ; (2) Taluqs held under grants from zemindars, 
 which did not expressly transfer the property in the 
 soil, hut operated simply as leases on terms of payment 
 of rent and other conditions ; 13) Jungle burl taluqs 
 held under permanent leases on conditions of clear- 
 ance of jungle-lands and payment of fixed amounts of 
 revenue after a (ixed rent-free period ; and (4) Taluqs 
 which might have been recorded as independent, but for 
 
 ' Ante pp. 94, 130. » Reg. VIII of 1793, Sec. 6.
 
 DEPENDKNT TALUQS. I 33 
 
 which applications to the Collector were not made within 
 one year from the passing of Regulation I of 1801/ 
 
 Regulation VIII of 170^ speaks of two classes of Regulation 
 
 \7Tfff 
 
 dependent taluqs existing at the date of the Permanent g^^ 49.'^^'^' 
 Settlement — those of which the rent was capable of being 
 enhanced^ and those of which the rent was not enhance- 
 able. If there was a grant to hold in perpetuity at fixed 
 rent, and payment had been made of such fixed rent for 
 more than twelve years before the Permanent Settlement, 
 neither the grantor nor his heirs, nor even the Gov- 
 ernment, could enhance the rent. But if the grantee had 
 held on payment of fixed rent for less than twelve years, 
 the Government or any proprietor other than the 
 grantor or his heirs could demand increased assess- 
 ment.^ The presumption was generally in favour of the 
 taluqdars, as soon as it was proved that the taluq had 
 existed from before the Decennial Settlement.^ 
 
 Section 51 of Regulation VIII of 1793 declared — "No Regulation 
 zemindar or other actual proprietor of land shall demand g''^i°^<,'^8^' 
 an increase from the taluqdars dependent on him, although and 51. 
 he should himself be subject to the payment of an in- 
 crease of jumma to Government, except upon proof that 
 he is entitled so to do, either by the special custom of 
 the district, or by the conditions under which the taluq- 
 dar holds his tenure ; or that the taluqdar, by receiving 
 abatements from his jumma, has subjected himself to the 
 payment of the increase demanded, and that the lands 
 are capable of affording it."* Section 48 of the Reg- 
 ulation required proprietors of estates to enter into en- 
 gagements with these taluqdars, " provided the taluqdars 
 
 ' Reg. I of 1804, Sec 24 
 
 « Reg. VIII of 1793, Sec. 49. 
 
 ^ Dayamony v. Nuordkumar, 2 Hay 220 ; Radheeka v. Rammohun, 
 1 W.R. 367 ; Panioty v. Juggut, 9 W. R. 379 ; Radhika, v. Bama 4 B.L 
 R. (P.C.) 8, sc, 13 W.R. (P.C.) II, sc, 13 M.I, A. 248 ; Hurro -v. Goblnd, 
 23 W., R. 352. 
 
 ' See Aa VIII of 1885, Sec. 6.
 
 134 PERMANENT TENURES. 
 
 Rights of agreed to such revenue, progressive or otherwise, as 
 
 ^wictr'' the proprietor might be entitled to demand from them." 
 sales for But this power of demanding increase could only be 
 
 exercised subject to the provisions of Sections 49 and 
 51 of the Regulation.' Section 7 of Regulation XLIV 
 of 1793 made the matter clearer by enacting that even 
 auction-purchasers at sales for arrears of government- 
 revenue under section 5 of the Regulation had not the 
 " authority to assess increased rent upon the lands of 
 such dependent taluqdars as were exempted from any 
 increase of assessment at the date of the Decennial 
 Settlement by virtue of the prohibition contained in 
 clause I, section 51 of Regulation VIII of 1793. The rev- 
 enue payable by such dependent taluqdars was declared 
 fixed for ever, and their lands were accordingly to be 
 rated at such fixed assessment in all divisions of the 
 estate in which their lands were included." Their posi- 
 tion was not to be affected, even if no engagements, such 
 as those contemplated in section 48 of Regulation VIII 
 of 1793, were entered into, and even if no engagements 
 were recorded in the Collectorate. 
 Bama Soon- In the leading case of Bama Soondery Dassvah v. 
 
 dhika Chow- Rddhika Choivdhrain a7id others,^ the Judicial Com- 
 dhrrvin. mittee of the Privy Council have thus summarised 
 
 the effect of the provisions of the Regulations relating 
 to dependent taluqs — \a) A zemindar holding under 
 the Perpetual Settlement has the right, from time 
 to time, to raise the rents of all rent-paying lands 
 within his zemindari according to the perganah or 
 current rates, unless he is precluded from the exercise 
 of that right either by contract binding on him, or 
 unless the lands in question can be brought within one 
 
 ' Hnronath v. Bindoo. 3 W. R. (Aft X) 26 ; Brojo 7' Kalee. 8 W. R 
 496 : Tarinee v. Koonj, 1 2 W. R 1 12 • Kristo v. Elahee, 20 W. R. 459 ; 
 Hiirroimth v. Gobind, 2T W. R 35:^ 
 
 ■' 13 M I. A. 248. See Radhika v Bama 4 B L. R, (P. C.) 8, sr., 13 
 W. R. (P.C.) II.
 
 DEPENDENT TALUQS. • 135 
 
 of the exemptions recognized by Regulation VIII ol i 793: 
 (h) The burtlen of proving that the lands claimed arii 
 within the ambit of a dependent taluq and that the taluq 
 existed at the Decennial Settlement is upon the taluq- 
 dar : {c) Section 51 of Regulation VIII of 1793 imposes 
 upon the zemindar the burden of showing that he is 
 entitled to raise the rate of rent either by special cus- 
 tom or by contract, or by reason of certain specified 
 conduct on the part of the taluqdar. 
 
 The amount of evidence necessary to prove the exist- Evidence to 
 
 r 1 1 1 . 1 1 . r iL T-v -1 prove the ex- 
 
 ence of a dependent taluq at the date ot the Uecennial jstence of a 
 Settlement varies according to circumstances. Asser- taluq at the 
 
 1 1 f 1 T-i Decennial 
 
 tions made about its existence shortly before the Uecen Settlement, 
 nial Settlement have been considered to be good evi- 
 dence/ Neither does the non-mention in the Decennial 
 or Quinquennial papers afford strong inference against 
 its existence.^ 
 
 If, however, in a suit by an auction-purchaser for Onus pro- 
 arrears of revenue, a taluqdar pleaded exemption from lia- ^" • 
 bility to enhancement on the grounds set forth in section 
 49 of Regulation VIII of 1793, w'^., that the taluq had 
 been held at fixed and invariable rent for more than 
 twelve years antecedent to the Permanent Settlement, 
 or if he set up a contract valid under that section, the 
 burden was on the taluqdar : the onus of proof varied 
 according as the plea was set up either under section 49 
 or section 51 of the Regulation.^ 
 
 The right to enhance the rent of a dependent taluq Notice of en., 
 could be exercised only after notice.* Regulation V of "^ncemen . 
 1812 laid down that no tenant would be liable to pay en- 
 
 ' Bama v. Radhika, 13 M I. A. 248; Romesh v. Modhoo, S W. R. 252. 
 ■^ Wise V. Bhooban, lO M. 1. A. 165 ; Rajah Nilmoney v. Ram, 21 
 
 W. R. 439 
 
 ' Babu Gopal v. Teluk, 10 M. I. A 183; Bama v. Radhika, 13 
 
 M. I. A. 248. 
 
 * Reg. V of 1812, Sec. 9 ; Nilmonee v. Chunder, 14 W. R. 251 ; Nil- 
 money V. Ram, 21 W. R. 439 i Srimati v. Girish, 7 B.L.R. App. 44,
 
 136 
 
 PERMANENT TENURES. 
 
 Imnced rent, though subject to enhancement under the 
 .subsisting Regulations, unless a formal written notice 
 had been served on such tenant on or before the month 
 of Jaisth, notifying the specific rent to which he would 
 be subject for the ensuing Fasli or the current Bengali 
 vear. The notice must specify upon which of the grounds 
 mentioned in section 51 of Regulation VIII of 1793 
 the enhancement was sought.^ 
 Grounds of ^^ ^he Zemindar succeeded in showing that a depen- 
 
 enhancement. (jgnt taluq lying witliin the ambit of his estate could not 
 ( laim exemption from liability to enhancement and 
 that the notice required by law had been duly served, 
 the grounds of enhancement could be taken into con 
 sideration. But if the plaintiff failed to prove due service 
 of notice, or if the notice served did not comply with the 
 requirements of section 51 of Regulation VIII of 1793, the 
 court might grant a declaration that the taluq was liable 
 to enhancement.'* The special custom of the district 
 mentioned in section 51 of Regulation VIII of 1793 
 referred to rents according to perganah rates or rates 
 j)aid by similar taluqdars in the district, and not those 
 payable by cultivating raiyats.^ If the rent paid by a 
 taluqdar was less in rate than that paid by other taluq- 
 dars having the same status, enhancement should be 
 allowed, provided that the lands were capable of afford- 
 ing an increase. It was, however, extremely diflficult to 
 prove special custom, and the practical result has been 
 that we have very few instances of enhancement of rent 
 of dependent taluqs existing from before the Permanent 
 Settlement.* If the taluqdar had obtained the benefit of 
 
 ' Nobo V. Mazamooddeen, 19 W. R. 338 ; Nilmoney v. Ram, 21 
 W. R. 439. See Aa VIII of 1885, Sec. 6. 
 
 '^ NufTer v. I'oulson, 19 W. R. 175. 
 
 ^ Brojo V. Kalee, 8 W. R. 496 ; Nobo v. Mazamooddeen, 19 W.R. 338. 
 
 ' Gouree v. Shurnomoyee, 6 W.R. (Aft X.) 41 ; Mohima v. Gooroo, 7 
 W. R. 285; Huro V Anund, 7 W. R. 459; Soora v. Golam, 19 
 W. R. 142.
 
 DEPENDENT TALUQS 137 
 
 a decrease of rent on the ground of diluvion, increase in 
 area on account of reformation in site or accretion 
 would be a very good reason for enhancement/ 
 
 The right conferred on these taluqdars by Regula- Taluqs exist- 
 tion VIII of 1793 is statutory, and, as we have seen, auc- ^"afe o°f"the^^ 
 tion-purchasers on sales for arrears of revenue are Permanent 
 bound to respect it. Section 37 of Act XI of 1859 and ^ ^""^ 
 section 12 of Bengal Act VII of 1868 gave permanency 
 to tenures existing at the time of the Permanent Settle- 
 ment as against auction-purchasers for arrears of revenue 
 of entire estates. If the rent has changed since that date, 
 the tenure is only liable to enhancement, but there 
 can be no ejectment. Such tenures are placed in the 
 same category as dependent taluqs existing from be- 
 fore the settlement, the rent of which was enhance- 
 able under certain circumstances. But tenures which 
 have been held at fixed rents from the time of the Per- 
 manent Settlement were declared valid— both as regards 
 permanency and fixity of rent — as against such auction- 
 purchasers. Act X of 1859 supplemented the provis- 
 ions in the Regulation-laws by enacting in section 15: — 
 " No dependent taluqdar who, in the Provinces of 
 Beno-al, Behar and Orissa holds his taluq (otherwise 
 than under a terminable lease) at a fixed rent which has 
 not been changed from the time of the Permanent 
 Settlement, shall be liable to any enhancement of such 
 rent, anything in section 51, Regulation VIII of 1793, 
 or in any other law, to the contrary notwithstanding." 
 Section 16 of the Act enacted that a presumption should 
 be made that the rent was not changed from the Perma- 
 nent Settlement, if the taluqdar succeeded in proving 
 uniform payment for twenty years before the com- 
 mencement of the suit. The Act made no change in 
 the law as to the rights of taluqdars under section 51 of 
 Regulation VIII of 1793 with reference to the grounds 
 
 Compare Hem v. Ashgur, I. L. R. 4 Cal. 894. 
 R
 
 13^^ PERMANENT TENURES. 
 
 of enhancement of rent, but it gave to these taluqdars 
 the additional right of exemption from enhancement, 
 the declaration in the statute being that uniform pay- 
 ment of rent from the date of the Permanent Settlement 
 rendered the taluq permanent and gave fixity of rent ; 
 and, as there is always considerable difficulty in 
 proving uniform payment for such a long period, a 
 rebuttable presumption was directed to be made in 
 favour of the taluqdar. This presumption might be 
 rebutted by proof that the tenure came into existence 
 or that the rent was changed after the date of the 
 Permanent Settlement. Taluqs are generally, if not 
 always, hereditary and transferable, and they are seldom, 
 if ever, held on terminable leases. The word "taluq" 
 prima facie imports a permanent tenure.' The onus of 
 proving the nature of the tenure, its permanency and 
 the fixity of rent, is, however, on the taluqdar, and the 
 presumption arising from name and duration is only 
 some evidence in proof of these matters. 
 Rent not en- J'he rules laid down in the Regulations and Act X of 
 
 hanceable if ^ ... . ^ . r i i-» i 
 
 rent has not 1^59 'ire Still HI lorcc in some parts ot the bengal 
 beenchanged Provinces. The Bengal Act VIII of 1869 — the Land- 
 
 from Pcritia- _ ^ . 
 
 ner t Settle- lord and Tenant Procedure Act — was not enforced in 
 
 '"'^"^* the Scheduled Districts and the province of Orissa, 
 
 including Cuttack, though it was extended to Sylhet. " 
 
 Besides, the Bengal Act being merely a Procedure Act, 
 
 ch-inging only the tribunal for the trial of cases, made 
 
 no alteration in the substantive law as laid down in Act 
 
 X of 1859. Sections 15 and 16 of .\ct X of 1859 were 
 
 reproduced, word for word, in sections 16 and 17 of the 
 
 Bengal Act VIII of 1869. The Bengal Tenancy Act (VIII 
 
 of 1885 , which has repealed Act VIII B.C.) of 1869, has 
 
 made no material alteration in the law as laid down in 
 
 ' A-anooIlah v K;ilce, i8 W R. 469: Krishno v. Meer Siifdur, 22 
 W. R. 326. 
 
 ' kf\ VIII (B. C.) of i8fif>, S.-c. 106 .ind Srh D.
 
 DEPENDENT TALUQS. '39 
 
 sections 15 and 16 of Act X of 1859.^ '^*^ words 
 "Permanent Settlement/' occurring in the Bengal 
 Tenancy Act, have been defined to mean the Perma- 
 nent Settlement of Bengal, Behar and Orissa made in 
 1793.2 Tiiese words were not defined in the previous 
 Rent Acts, but they referred to the 22nd March 1 793, the 
 date of this F^ermanent Settlement of 1793.'' In any 
 locality, where permanent settlement has not been 
 effected, the taluqdar claiming permanency and fixity of 
 rent must show that rent has not been changed 
 since the 22nd March 1793. But no presumption can 
 arise under the Bengal Tenancy Act, where the 
 taluq is situated within the ambit of a temporarily 
 settled estate, in which the Government has the right to 
 raise its revenue on the occasion of every fresh settle- 
 ment.* The Government is not bound by the acts of the 
 holdi^r of land under a temporary settlement. Express 
 recognition in the settlement proceedings by a Revenue 
 officer, especially empowered by the local Government 
 to make or confirm settlements, may be evidence of the 
 right to hold a taluq exempt from enhancement 
 
 But supposing that the rent of a taluq is fixed in Alteration of 
 perpetuity, can there be abatement or enhancement of ^^^^J^ of^area'. 
 rent on the ground of decrease or increase in area, when 
 there is the absence of an express contract ? The Bengal 
 Tenancy Act has solved the disputed question of law by 
 adding to the words of the Regulation the clause — ''ex- 
 cept on the ground of an alteration in the area of the ten- 
 ure."" This clause must be read along with section 52, 
 subsection i, clauses {a) and (d) of the Bengal Tenancy 
 Act, which provide for alteration of rent in respect of 
 
 ' Aft. VIII of 1885, Sec. 50, els. I and 2 ; Suda v. Nowruttun, i6 
 W. R. 289. 
 
 2 Aa. VIII of 1885. Sec. 3, cl..i3. 
 
 ' Dhunput V. Gooman, W R. 1864, (A61 X) 61 ; Rajessurree v. Shib- 
 nath, 4 W. R. (Aft. X), 42. 
 
 * Aa VIII of 1885, Sec. 191. » Aa VIII of 1885, Sec. 50, cl. i.
 
 MO PERMANENT TENURES. 
 
 alteration in area either by alluvion or diluvion or any 
 other cause. I shall revert to this ground of enhance- 
 ment and deal with it at length later on. 
 Changes Section 51 of Regulation VIII of 1793 has been re- 
 
 made by the pealed by the Bengal Tenancy Act,^ but its provisions 
 Tenancy Aft. are embodied with a slight modification in section 6 of 
 that Act. Sections 48 and 49 of the Regulation are still 
 in force. Section 6 of the Bengal Tenancy Act restricts 
 its operation to tenures existing from the time of the Per- 
 manent Settlement, and consequently includes tenures or 
 taluqs existing from before the Settlement, while sections 
 48, 49 and 51 of the Regulation apply only to those that 
 have existed from before. Practically the distinction is 
 of little consequence, as any claim based on the ex- 
 istence of a dependent taluq exactly from the date of 
 the Settlement is seldom made, and, as we have already 
 seen, taluqs existing from before that date have gener- 
 ally acquired the status of permanent tenures at fixed 
 rent. Let us, however, see wherein the Bengal Tenancy 
 Act has modified the rules laid down in the Regulations — ■ 
 rules which are still in force in various parts of the Bengal 
 Provinces. The Regulation speaks of the " special 
 custom of the district" as one of the grounds of enhance- 
 ment. — the words in the Bengal Tenancy Act are " local 
 custom.'' I do not think the change is material, though 
 the word local is wider in its import. " Local " may in- 
 clude a district, part of a district and even two or more 
 districts. The other alteration is the insertion, in clause 
 (^)of section 6 of the Act, of the words, " otherwise than 
 on account of the diminution of tlu> area of the tenure." 
 This seems to imply that an abatement received by a 
 taluqdar on account of decrease in area by diluvion 
 or dispossession by title paramount, would not make the 
 tenure liable to enhancement except under section 52 
 of the Act, which relates to increase in area from allu- 
 
 ' Aft VIM of 1885, Schedule i.
 
 DEPENDENT TALUQS. 14I 
 
 vion, encroachment by the tenant or other similar 
 causes. The reduction of rent contemplated by sec- 
 tion 6 must be one on account of the diminution of 
 the rent-roll due to the productive power of land having 
 decreased by reason of its being covered with sand, or 
 to depopulation or causes of a similar nature. 
 
 The Bengal Tenancy Act has made a material al- Notice of en- 
 
 teration in procedure, by doing away with the necessity hancement 
 
 » ... , "°^ necessary 
 
 of notice upon taluqdars before the institution of a suit 
 
 for enhancement. Section 154 of the Act now regulates 
 
 the procedure in those districts in which that Act prevails. 
 
 Thus you see the rent of dependent taluqs existing Summary, 
 at the date of the Permanent Settlement^is not enhance- 
 able in the following cases :- (^i) where the taluqdars 
 have paid rent at fixed rate for at least twelve years 
 before the Decennial Settlement ; 'h) where the taluqdars 
 have paid rent uniformly at fixed rate from the time of 
 the Permanent Settlement. The rent is enhanceable in 
 all other cases, except where the parties are bound by 
 the terms of the grants. The grounds of enhancement 
 are those stated in Regulation \TII of 1793 and section 
 6 of the Bengal Tenancy Act. Ejectment is not allowed 
 in any case. 
 
 We now come to that class of dependent taluqs Dependent 
 
 which have come into existence after the Permanent taluqs creat- 
 
 . ed after the 
 
 Settlement. The policy of the earlier Regulations was date of Per- 
 
 to prohibit proprietors of estates from "disposing of "lanent Set- 
 any dependent taluq to be held at the same or at any 
 jumma for a term exceeding ten years." ^ In those 
 days such a provision was absolutely necessary for the 
 protection of government-revenue, as ejectment was 
 unknown, and cases of enhancement of rent extremely 
 few. Leases for any term exceeding ten years were 
 declared '' null and void." This prohibition was repeat- 
 ed in 1795 and 1803 -, and it was declared that on sale 
 
 ' Reg. XLIV of 1793, Sec. 2. 
 
 • Reg. L. of 1795, Sec. 2; Reg. XLVII of 1803, Sec. 2.
 
 142 PERMANENT TENURES. 
 
 for arrears of government revenue, all such leases would 
 be cancelled. ^ But in 1812, it was deemed advisable 
 to change the policy, and proprietors were declared 
 competent to grant leases to dependent taluqdars on 
 any terms most convenient to the parties, even in per- 
 petuity, and reserving any amount of rent, provided the 
 interest the proprietors had in their estates authorised 
 them to make such grants. 2 In the year 1819, all leases 
 granted either before or after 181 2 were declared valid, 
 notwithstanding that the rules in force before the 
 passing of Regulation V of 1812 had prohibited the 
 creation of such tenures. ^ 
 
 Putni taluq. Most of these taluqs created by the proprietors of 
 
 estates after the Permanent Settlement were, by the 
 terms of the grants, permanent and hereditary with rent 
 fixed for ever. The terms of the grants regulate the 
 relation between the lessors and the lessees. A good 
 many of these are known by the name of putni 
 taluqs. A few go by other names. Others again 
 are, by the conditions of the grants, permanent hered- 
 itary and alienable, though the rent is not fixed for 
 ever — a condition being inserted in the leases for en- 
 hancement at customary or perganah rates, or whenever 
 there may be a general enhancement in the perganah 
 or district. Some taluqs are held without written leases, 
 and custom or usage regulates their incidents. These 
 last also are generally hereditary and alienable, though 
 the rent may be enhant ed. I propose to deal with them 
 in the order I have mentioned them. 
 
 fheir inci- Putni tahiqs have their oriorin in the estates of the 
 
 dents under , ^ " 
 
 Rc^uUtion Maharaja of Burdwan.'^ The original meaning of the word 
 
 VIII of 1819. putni seams to be, as Mr. Harrington thinks, " .settled, " 
 
 and putni taluq means a dependent tenure settled 
 
 ' Reg. XLVII of 1803, Sec. 5. 
 
 » Reg. V of 1812, Sec. 2 Reg. XVIIl of 1812, Sec 2. 
 
 • Reg. VIII of 1819, Sec.2. 
 
 ' Preamble to Reg VIII of 1819.
 
 PUINI TALUQS. 143 
 
 in perpetuity at fixed rent. The estates of the Maha- 
 raja of Burdwan were saved by the creation of these 
 piitni taliiqs, as the system afforded the only means of 
 escape from the ruin of ancient families in Bengal, 
 brought about by the Permanent Settlement. The assess- 
 ment of land-revenue on the estates settled with the 
 Burdwan Raj was very high. For easy and punctual 
 realii^ation of rent, leases to middlemen in perpetuity and 
 at fixed rent were granted to a large number of inter- 
 mediaries^ who were thus made proprietors in the same 
 way as the Government had made the Maharaja of 
 Burdwan a proprietor. Regulation Vlil of 1819 placed 
 on a legislative basis this system of subinfeudation. By 
 degrees, the system extended to other zemindaries, and 
 we have now a very large number of putni taluqs, 
 especially in the districts of Hooghly, Burdwan, Bankura 
 Nuddea, and Purnea. The general characteristics of 
 these tenures may be summed up in the words of the 
 Regulation : — '' The character of the tenure is that it is 
 a taluq created by the zemindar to be held at a rent 
 fixed in perpetuity by the lessee and his heirs for ever; 
 the tenant is called upon to furnish collateral security 
 for the rent and for his conduct generally, or he is 
 excused from this obligation at the zemindar's discre- 
 tion ; but even if the original tenant be excused, still 
 in case of sales for arrears or other operations leading 
 to the introduction of another tenant, such new incum- 
 bent has always, in practice, been liable to be so called 
 upon at the option of the zemindar. In case of an 
 arrear occurring, the tenure may be brought to sale by 
 the zemindar, and if the sale do not yield a sufficient 
 amount to make good the balance of rent at the time 
 due, the remaining property of the defaulter shall be 
 further answerable for the demand."^ The Regulation 
 admitted these Putni tenures to be saleable in execution 
 
 ' Preamble to Reg. VIII of 1819.
 
 '44 PERMANENT TENURES. 
 
 of ordinary money-decrees, and transferable by sale, 
 gift or mortgage, and also admitted the right of the 
 putnidars to create similar subordinate tenures called 
 dur-putnis.'^ The putni taluqs were also declared not 
 liable to be cancelled for arrears of rent. They were 
 saleable for arrears, - the surplus sale-proceeds, after 
 deducting the rent due to the zemindar, being left to 
 the credit of the defaulting putnidar.- 
 Regulation None of the Rent Acts— Act X of 1850 or Act VIII 
 
 VIII of 1819 r TO 1 . . 
 
 not modified of 1885 — has touched the provisions of the Putni Regula- 
 by the Rent tio^^ ^^^ Reg. VIII of 1819, modified, in matters not 
 very material, by Regulation I of 1820, Regulation VII of 
 1832, Act VIII of 1835, Act XXV of 1850, Act VI of 1853 
 and Act VIII (B.C.) of 1865. The Bengal Tenancy Act 
 ,VHI of 1885 has expressly provided: — "Nothing in 
 the .Act, shall affect any enactment relating to Putni 
 tenures in so far as it relates to those tenures.'* In 
 matters in which the Regulation, as it now stands with 
 the amendments, is silent. Act X of 1859 and the other 
 Acts, dealing with the incidents of the relationship of 
 landlord and tenant, furnish rules of substantive law and 
 procedure; but the express provisions of the Regulation 
 have not been, in any way, affected by them.' The 
 zemindar has, however, the additional right of bringing 
 putni taluqs to sale under the ordinary procedure laid 
 down for other kinds of tenures, and the efTect of such a 
 sale is the same as to the right of the purchasers to avoid 
 incumbrances and get other reliefs, as in sales under 
 the Regulation.*^ 
 
 The summary procedure for biennial sales for 
 
 ' Reg. VIII of 1819, Sec. 3, els. i and 2. 
 
 « Reg. VIII of 1819, Sec. 3, cl. 3. 
 
 ' Aft Vin of 1885, Sec. 195, cl. (e) ; Gyanada v. Bromomoyi, I.L.R. 
 
 17 Cal. 162 
 
 ' Kristo 7^. Kristo, I.L.R. 16 Cal. 642; Mahomed 7/. Brojo, I.L.R 
 
 18 Cal. 360. 
 
 ^ Brindabun v. Brindabun, 21 W.R. 324, sc , 13 B.L.R. 409, sc, 
 L.R. I I. A. 178.
 
 PUTNI TALUQS. 14$ 
 
 arrears of rent, through the agency of the Collector Summary 
 of the District in which the putni taluq is situated, ^^'^^ ^°^ 
 
 r T arrears, 
 
 is the chief peculiarity noticeable in the Putni Regula- 
 tions.^ Summary sales for arrears of revenue or rent 
 are not allowed to any landlords, except the Government 
 and the zemindars (/ua putni taluqs. The reference 
 to months according to the Bengali Calendar, and 
 not the Fasli or the Walaity, seems further to indicate 
 that the Regulation itself was intended only for Bengal 
 Proper, as it professedly referred to the Burdwan Raj. 
 I am not aware of any instance of the application of 
 the provisions of the Regulation, as to summary 
 sales, in the Behar and the Orissa districts. The 
 Maghee and Mulki eras correspond exactly in months 
 and days with the Bengal era, and where these 
 eras prevail, instances of sales under this Regulation 
 are common. 
 
 The first biennial or six-monthly sale, generally Sashmahi 
 known as sashmahi sale, is the one that takes place for ^^'^" 
 the arrears from Baisakh to Aswin. The application 
 for sale may be made to the Collector'* of the district 
 in which the lands of the taluq or the greater part' 
 thereof are situated, on the first day of Kartik fol- 
 lowing, or if that be a close day, on the first open day 
 of the month. 
 
 The second biennial sale, generally known as the Dwazdomahi 
 dwazdomahi (twelve-monthly) sale, takes place for ^^'^' 
 arrears remaining due at the end of the year '.Chaitra), 
 the zemindar being entitled to make the application 
 on the first day of Baisakh or the first open day there- 
 after, the sale taking place in Jaisth following. 
 
 Only the recorded proprietor, or proprietors joint- Who may ap- 
 ly, or a common manager whose name is duly reg- ^^ sum- 
 
 ' Watson V. Colleaor, 12 W.R., P.C., 43, sc, 3 B.L.R., P.C, 48. 
 ^ Reg. VII of 1832, Sec. 16, cl. i ; Aft VI of 1853, Sec. i ; Aa 
 VIII (B.C.) of 1865, Sec. 3. 
 ' Aa VIof 1853, Sec. I. 
 
 S
 
 146 PERMANENT TENURES. 
 
 jstered, may make the application. One of a number 
 of co-proprietors or fractional co-sharers is not en- 
 titled to make the application, unless the putni taluq 
 is co-extensive with the interest of such fractional 
 sharer or sharers. If ^, B and C are joint owners of 
 an estate, and if they have jointly created a putni 
 taluq, A alone is not entitled to apply for sale under 
 the Regulation, either for the whole rent due from the 
 putnidar, or for his own share only. But if A had created 
 a putni of his own share, he would be entitled alone 
 to apply. Even if after the creation of the putni by 
 a number of proprietors jointly, the putnidar pays 
 rent separately to each of the proprietors according 
 to his share, such a proprietor has not the right to 
 apply. But if the several fractional proprietors and 
 the putnidar enter into separate engagements by exe- 
 cuting leases and counter-parts, the right of each pro- 
 prietor may then be recognised by the Collector. The 
 Regulation itself does not contemplate the case of any 
 but owners of entire estates ; but it seems, however, that 
 the general law as to the rights of co-sharers is applica- 
 ble. Registration of the proprietor's name under Act VII 
 (B.C.) of 1 876 is, of course^ absolutely necessary to entitle 
 him to any relief under the Regulation. The rule as to 
 who may apply for sale under the Regulation must be 
 taken to be the same as that in suits for arrears of rent, 
 where the tenure is sought to be made liable. 
 Notices of On the application to the Collector being admitted, 
 
 ^^''^- three copies of the notice of sale are required to be 
 
 served, the first by being stuck up in some conspicuous 
 part of tin.' Collector's office or cutchery,^ the second 
 by being stuck up at the sudder cutchery of the zemindar 
 himself,- and the third by publication of a copy, or extract 
 
 ' Reg. VIII of 1819, Sec 8, cl. 2; Rajnarani v. Ananta, I. L. R. 19 
 Cal. 703. 
 
 * Reg. VIII of 1819, Sec. 8, cl, 2; Bykunt v. M.ihirajah, 17 W. W. 
 447, jc , 9 B. L. R. 87.
 
 PUTNI TALUQS. M7 
 
 of such part of the notice as may apply to the individual 
 case, at the cutchery or at the principal town or village 
 upon the land of the defaulter. ^ This third notice is 
 required to be served in the moffusil by a single peon 
 " who shall bring back the receipt of the defaulter or his 
 mofTusil agent, or in the event of his inability to procure 
 this, the signatures of three substantial persons '^ , resid- 
 inor in the neighbourhood, in attestation of the notice 
 having been brought and published ^ on the spot." In 
 case, however, the people of the village should object or 
 refuse to sign their nimes in attestation, the peon is 
 required to go to the cutchery of the nearest moonsiff, or 
 if there should be no moonsiff, to the nearest thana, and 
 there make an affidavit of due publication— certificate to 
 which effect shall be signed and sealed by the officers 
 there and delivered to the peon. The non-publication 
 of anyone of these notices is sufficient to vitiate any sale 
 that may follow, even if there be no proof of substantial 
 injury to the defaulter.* The notice required ^o be 
 stuck up at the cutchery of the defaulter may be 
 published at the cutchery of an adjacent taluq 
 belonging to him, when he has no cutchery on the 
 taluq in arrear. ^ A place where the zemindar's agent 
 usually transacts business, though it is not a regular 
 cutchery, may, in the eye of law, be considered a 
 proper place for the publication of the notice. 
 
 The question, as to who are substantial persons com- 
 
 ' Reg. Vin of 1S19, Sec. 3, cl 2: Byku.it t/. Maharajah, 17 VV.R. 
 447, sc, 9 B.L.R. 87 ; per contra Hirry v. Motee, 14 W R. 30 ; Hunoo- 
 man v. Bipro, 20 W. R. 132. 
 
 * Ram Sebuk v. Monmohini, L. R 2 I. A 71, sc, 23 W. R. 113, sc, 
 14 B. L. R. 394; Sreemuttee v. Pitambur, 24 W. R. 129 
 
 ' Raghub V. Brojonath, 14 W. R. 489 
 
 ^ Bhugwan v. Sudder, I. L. R. 4 Cal. 41 ; Maharajah v. Tarasundari. 
 I. L. R. 9 Cal. 619, sc, L. R 10 I. A. 19; Rajnarain v. Krishna, I. L. R. 
 14 Cal. 703, sc, L. R. 14 I. A. 30 ; Surnomoyi v. Grish, I. L. R. 18 
 Cal. 2^2- See also Gobind v. Chaudhurry, I. L. R. 9 Cal. 172. 
 
 * Mungazee v. Sreemutty, 21 W. R. 369.
 
 148 PERMANENT TENURES. 
 
 Attestationby petent to attest the notice to be serv^ed on the land of the 
 
 persons!'^' defaulter, was at one time the subject of considerable 
 
 discussion. But the matter has now been set at rest by the 
 
 judgment of the Judicial Committee of the Privy Council 
 
 in Ramsebak Bose v. Monmohini Dasi and others,'^ 
 
 in which it has been held that respectable persons of 
 
 good character, such as mondols, choukidars and holders 
 
 of lakhiraj lands d-ve. substantial persons. The proof of 
 
 the service of notice is enough. The observance of 
 
 special formalities in the mode of service or attestation 
 
 by witnesses is merely directory. ^ 
 
 Zemindar res- The zemindar is, in the words of the Regulation, 
 
 due^pubiica- " exclusively answerable for the observance of the forms 
 
 tion of the prescribed for the publication of notice."'' The bur- 
 notices. 
 
 den of proving due publication is entirely upon the 
 
 zemindar who, in every suit brought to contest the 
 legality of the sale, has to prove the due observance of 
 all the formalities/ even if the plaintiff gives no evi- 
 dence in support of his plea of non-service. There is no 
 presumption, in favour of the zemindar, of the notices 
 having been duly served. It is not even incumbent upon 
 a plaintiff, who has brought a suit to contest the legality 
 of a summary sale under the Regulation, to set out dis- 
 tinctly the grounds for impeaching the sufficiency and 
 due publication of the notices. The plea of non-service 
 of any particular notice or of any informality in publi- 
 cation may be taken at any stage of the suit, and even 
 for the first time in appeal."' 
 
 ' L R. 2 I. A. 71, sc, 23 \V R. 113, .ST., 14 B. L R. 394,sc.,3 
 P. C. R. 72. See also Sremuttee v. Pitambur, 24 W. R 129. 
 
 ^ Sona V. Lall, 9 W. R 242 ; Pitambur v. D.imodar, 24 W. R. 129. 
 '' Reg VIII of 1819, Sec. 8, cl. 2. 
 
 * Doorga 7>. Synd, 21 W. R. 397; Maharajah of Burdwan v. Tara- 
 sundari, I. L. R. 9 Cal. 619 (624^ sc, L. R. 10 1 A. 19; Hurro v. 
 Mahomed, I. L. R. 19 Cal. 699. But see Rajnarain v. Ananta, I. L R. 
 19 Cal. 703. 
 
 * Ashanulla v. Hurri, I. L. R. 20 Cal. 86, See the same case in 
 High Court in I. L. R 17 Cal. 47.).
 
 PUTNI TALUQS. I49 
 
 The notice of sale at the middle of the year should Special notice 
 
 for the Sa; 
 mahi sale. 
 
 contain a statement that " unless the whole of the ad- ^°' '^^ ^^'^- 
 
 vertised balance be paid before the date of sale or so 
 much of it as shall reduce the arrear including any 
 intermediate demand for the month of Kartik to less 
 than one-fourth or a four-anna proportion of the total 
 demand of the zemindar according to the kistbandi, 
 calculated from the commencement of the year to the 
 last day of Kartik." '^ This provision is not merely 
 directory ; it is mandatory, and the want of such a state- 
 ment in the notice has been held to vitiate the sale.- 
 
 The mid-year sale usually takes place on the first of Date of sale, 
 Aughran and, if that is a close day, on the first opening 
 day of the month. But if the application could not be 
 presented on the first day of Kartik, the day fixed for 
 sale is thirty days from the first open day in Kartik. 
 The sale on a proceeding at the end of the year 
 takes place on the first day of Jaisth following, but if it is 
 a Sunday or a holiday, the next subsequent day not 
 being a holiday is fixed for the sale, thirty days' time 
 being always allowed.^ 
 
 The Collector himself or an ofBcer exercising the full Colleaor to 
 powers of a Collector of the district^ and having revenue 
 jurisdiction over the tenure is required to conduct the 
 
 hold the sale. 
 
 ' Reg. VIII of 1819, Sec. 8, cl. 3. 
 
 2 AsanuUa'z;. Hari, I. L. R. 17 Cai. 474. Same case confirmed by 
 P. C. reported in I. L R. 20 Cal. 86 . 
 
 ^ Reg. VIII of 1819, Sec. 8, cl, 2. Thepra6lice of holding sales under 
 Regulation VIII of 1819 on eny day subsequent to the ist day of Aughran 
 or the ist day of Jaisth, the full period of thirty days being allowed to 
 intervene between the date of application and the date of sale, is based 
 upon the authority of a decision of the late Sudder Court iWoomes 
 Chandra Roy v. Esan Chandra Roy, S. D A. 1859, p. 1198)- S. D. A., 
 Construction No. 329, isth Sep. 1820 ; Huronath Goopto i;. Juggunath 
 Roy Chowdhry, 11 W. R 87. See also Sreemuttee 7;. Pitambur, 24 
 W. R. 129. 
 
 < Aa VI of 1853, Sees. I and 9 ; and Aft VIII (B.C.) of 1865, Sec. 3 ,• 
 Ram Mohan v. Radhanath, S. D. A. 1850, p. 320.
 
 IgO PERMANENT TENURES. 
 
 sale, and he must hold the sale if he finds that the notices 
 have been duly served"^ at least fifteen days before the 
 day of sale.i If the amount of the debt, specified in the 
 notices, be not paid to the zemindar before the date of 
 sale, and if from any informality in the service of 
 notice or any other cause, such as the death of the 
 zemindar, the application for sale be not struck off by 
 the Collector, the Collector is bound to hold the sale, 
 unless the zemindar or his agent asks the Collector to 
 stop it.^ 
 Procedure at At the time of the sale, the notice previously stuck 
 
 the sale. up in the Collector's cutchery is required to be taken 
 
 down, and each putni taluq is required to be called up for 
 sale by the Collector successively, in the order in which 
 notices have been stuck up. If there is any want of " fair- 
 ness or publicity" on the part of the person holding the 
 sale or any irregularity as to the procedure at the sale, 
 the Collector is responsible, and the sale should be set 
 aside.^ A person on the part of the zemindar should be 
 in attendance at the sale to satisfy the Collector as to the 
 actual arrear due up to the date of sale and the due pub- 
 lication of the sale-notice in the moffusil, and no sale can 
 take place unless a statement of the payments made by 
 the putnidar and the receipt or certificate of due publica- 
 tion of the notice in the moffusil are produced before the 
 Collector, who should record a proceeding separately as 
 
 * In orler to obviate the difficulty of serving notices in the 
 moffusil before the 15th of Kartik, the Colleftor was required each 
 year, a few days before the office was closed for the Durga Puja holi- 
 days, to fix the day on which the Putni sales will be held and to 
 put up a notice to that effect in his cutchery. This being fixed 
 authorit.itively, the zemindars might proceed to issue their notices 
 in the moffusil at any tim; after the first day of Kartik — Board's Letter 
 No 226 A, ditpd ist April 1881. 
 
 ' Reg. VIII of 1819. Sl:c 8, cl. 3 ; S ir 1 )inoyi v. Grish, I. L. R. i8 
 Cal. 3^3 (Matungee v. Moorrary, I. I, R. 1 Cal. 175 overruled.) 
 
 » Reg. VIII of 1819, Sec. 14. 
 
 ' Benoderam v. Mussumat, S. D. A. 1858, p 93 ; VVoomesh v. Esan, 
 S. D. A. 1859, p. 1198.
 
 PUTNI TALUQS. ^5* 
 
 to each lot. If the statement of account produced is 
 incorrect, and there is no arrear of rent at the date of 
 sale, the sale held is void.^ At the mid-year sale, the 
 kistbundee of the defaulter should also be produced, so 
 that the Collector may see that the amount of arrear 
 at the date of sale exceeds a fourth part of the annual 
 rent. The actual defaulter, whether he is registered or 
 not, cannot bid, but every other person is free to do so. 
 The zemindar himself is entitled to bid, or any under- 
 tenant'^, including the durputnidar of the defaulter,'^ 
 if he his not fraudulently withheld payment of his rent. 
 A person, who holds a mortgage of the putni, is not a 
 defaulter, and is entitled to make the purchase. 
 
 Fifteen per cent of the purchase-money, and not Deposit by 
 twenty-five per cent, as in execution-sales by a civil Purchaser, 
 court, is required to be deposited by the highest bidder, 
 and the balance of the purchase-money must be put in by 
 the noon of the eighth day from the date of sale. If the 
 deposit be not made by the noon of the eighth day, the 
 putni is required to be re-sold on the ninth, that is, the 
 following day. The first purchaser forfeits on such re-sale 
 the advance of fifteen per cent, and is further liable for 
 any deficiency at the second sale, the Collector being 
 competent to realise the deficiency by the process for 
 the execution of decrees of civil courts. The forfeited 
 deposit is applied towards the defrayal of the ex- 
 penses of the sale, and the surplus is forfeited to 
 Government.* 
 
 The Commissioner of Revenue has the power to set Commis- 
 aside any sale under Regulation VIII of 1819 on the asjde sum- 
 ground of irrelevancy of law or procedure, or on proof of mary sales. 
 
 ' Shuroop V. Rajah, 7 W. R. 218 ; Mussamut v. Radha, 24 W. R. 63. 
 
 2 Reg. VIII of 1819 Sec. 9; Mirza v. Kishen, W. R. (F. B.) 92, 
 
 sc, 2 Hay 356 ; Bykunt v. Monee, S. D. A. 1850, p. 89 ; Srinath v. 
 
 Ramdhon, S. D A. 1S59, p. 267 ; Sreemutty v. Govind, S. D. A., 14th 
 
 June 1862, p. 260 ; Gouree v. Raj, 5 W. R. 106. 
 
 ' Reg. VIII of 1819, Sec. 9; Fukeer v. Hills, 8 Sel. Rep. 153. 
 
 ^ Sec. 9 as amended by Seftions i and 2 of A(5l XXV of 1850,
 
 152 PERMANENT TENURES. 
 
 payment of the entire rent before the date of sale.^ 
 This, however, is a power which the Commissioners are 
 slow to-exercise, as any person interested in setting aside 
 a sale may get complete remedy in a civil court. 
 Confirmation After the entire amount of purchase-money is 
 
 of s^lc 
 
 deposited on the eighth day, the sale becomes con- 
 firmed, and the purchaser is entitled to get a sale-certi- 
 ficate at once* and possession of the taluq. No 
 formal order .of confirmation is required by law, the 
 sale becoming ipso facto confirmed on the payment of 
 the full purchase-money.^ The limitation of suits to 
 set aside a sale under the Regulation begins to run 
 from the date of the payment of the full purchase- 
 money, the period being one year under article 12, 
 clause (dj of the second schedule of the Limitation Act 
 (XV of 1877). The sale becomes final and conclusive on 
 the payment of the full purchase-money. 
 How sales Besides the remedies by a summary investigation be- 
 
 astde ^ ^ ^°^^ ^^^ sale^ and an appeal to the Commissioner after 
 sale, the defaulter or any party interested in contesting 
 the validity of the sale may sue the zemindar and the pur 
 chaser in the civil court for a decree for the reversal of 
 the same on the ground of the non-publication or irregular 
 publication of any of the notices or want of arrears.^ An 
 unregistered defaulter'', or an unregistered co-sharer of 
 the defaulter^, an under-tenure holder whose tenure 
 is voidable on the sale,^ or a mortgagee may sue for set 
 ting aside the entire sale in the proper forum and on full 
 
 ' Aa VIII (B C.) of 1865, Sec 13. " Reg. VIII of 1819, Sec. 15. 
 
 ■' Bhiiban Mohiin Moitr.i vn Girisli Narain Moonshee (Sp. Ap. 405 
 of 1893) decided on the 28th March, 1894. But see Brojo v. F'utick, 
 17 W.R. 407. 
 
 ' Reg VIII of 1819, Sec. 14. cl. 2. ^ Ibid, Sec. 14, cl 1. 
 
 " Raj Narain v. Ananfa, I. I,, R. 19 Cal. 703. 
 
 ' Chunder v. Shiivadra, 1. L R. 12 Cal. 622; Joykrishna v. 
 Sarfannessa, I. L R. 15 Cal. 345. 
 
 " Unnoda v. Erskine, 12 B. L. R. 370 ; Suresh v. Akkori, I L. R. 20 
 Cal. 746.
 
 PUTNl TALUQS. 153 
 
 valuati<jn, and he may be entitled to a decree on a suffi- 
 cient plea being made out. The zemindar as well as 
 the purchaser are necessary parties in such suits, if 
 the sale be set aside by the civil court, the zemindar is 
 liable to pay full costs and damages, the purchaser also 
 being fully indemnified against all losses.^ 
 
 Any durputnidar or any other under-tenure holder, Under-tenure 
 
 . . , . , • 1 ) rr holders pro- 
 
 whether his name is registered in the zemindars oflice teaing the 
 or not, may protect the putni from sale by paying the P^,^J^g^J°^J^j 
 amount of arrears ;2 and he is entitled to pay the to be re-im- 
 amount into the Collectorate at any time before the sale. ^^^^^°- 
 If the under-tenure holder is himself in arrear, the 
 amount deposited by him would go towards the satisfac- 
 tion of his debt^, but if he is not in arrear, and there 
 is nothing due from him on account of rent to the 
 zemindar, the amount lodged is considered to be an 
 advance from private funds for which a statutory lien 
 arises in favour of the person making the advance ;* and 
 he is also entitled, on applying for the same to obtain im- 
 mediate possession of the defaulting tenure in order to 
 recover the amount so advanced. " If the defaulter shall 
 desire to recover his tenure from the hands of the person 
 or persons, who by making the advance may have acquired 
 such an interest therein and entered into possession in 
 consequence, he shall not be entitled to do so except 
 upon repayment of the entire sum advanced with interest 
 
 ' Reg VIII of 1819, Sec. 14, cl. I ; Preolall v. Gyan, 13 W R. i6i ; 
 Bykunt v. Maharajah, 17 W. R. 447 ; Mobaruck v. Ameer, 21 W. R. 
 252 : Tara v. Nafar, i C. L. R. 236. 
 
 » Reg. VIII of 1819, Sec 13, cl. 2; Raj v. Gocool, S. D. A , 1857, 
 p 920 ; Lukhi v. Khettro, 20 W. R. 380, sc , 13 B. L R. 146; the sam • 
 case in H. C, Khettur v. Lukhee, 15 W. R. 125. 
 
 ' Reg. VIII of 1819, Sec. 13, cl. 3 ; Lalit 7;. Srinivas, I. L. R. 13 
 Cal. 331 
 
 * Reg. VIII of i8i9,Sec. 13, cl. 4; Prem v. Kishoon, S. D. A., 1849, 
 p 18; Ram V. Prem, S. D. A., 1849, p. 473 ; Bhuggobuttee 7'. Doorga, 
 S. D. A., 1858, p 890: Umbicar. Pranhuree, 13 W- R., F. B., i, sc, 4 
 B.L.R., F. B.,77; Nubo 7. S.ii:.tb, 1 1 C L R. :,7, .-f.. I. L. R. 8 Cal. 877. 
 
 T
 
 *54 PERMANENT TENURES. 
 
 at the rate, of twelve per cent per annum up to the 
 date of possession given as above, or upon ex- 
 hibiting proof in a regular suit, to be instituted for the 
 purpose, that the full amount so advanced with interest 
 has been realised from the usufruct of the tenure." 
 The under-tenure holder has also the right, which the 
 ordinary law gives him, of suing for the advance and 
 for declaration of his lien.^ 
 Limitation of If after the sale becoming final, it is set aside, the 
 
 suits for . , . ^.^, J , , . . - , 
 
 arrears of rent zemindar IS entitled to bring a suit for the arrears 
 when putni- under the ordinary Rent Law, as if no application 
 
 saIc is set I I^ 
 
 aside. was made. If the suit for setting aside the sale 
 
 remains pending for a long time, limitation does not 
 run as to the arrears of rent, but upon the sale being set 
 aside and upon the restoration of the parties to posses- 
 sion, they take back the taluq, subject to the obligation 
 to pay the arrears Until the sale is finally set aside, the 
 position of the zemindar is as if his claim has been 
 satisfied. The sale is not also an act of trespass by the 
 zemindar which can be considered as amounting to 
 dispossession by the landlord. The defaulter is entitled 
 to sue the purchaser, if he has taken possession, for 
 mesne profits; but he is himself liable to the zemindar 
 for the arrears of putni rent, and limitation does not 
 run in his favour until the suit for the reversal of the 
 sale is finally disposed of.^ 
 
 The right of Qn a sale under the Regulation being finally con- 
 
 thc purchaser ^ , . , .... , , , ... 
 
 to avoid in- firmed, either no suit being brought, or when a suit is 
 
 cumbrances. brought, the sale not being set aside by the civil court, 
 the under-tenures such as diirputnis^seputnis ox chahar- 
 putnis (taluqs of the second, third and fourth grades) 
 and all charges created by the defaulter or any person 
 holding under the defaulter, and all charges exist- 
 ing on the putni that have accrued through the act 
 
 ' Ambica v. Prnnhnri, 4 B. I.. R., F. B., 77. 
 
 » Ranee 7). vShooshee Mookhee, 12 M. I. A. 244, .rr, 1 1 W. R., PC, 
 542, sc, B. L. R., P.C , 10 ; Dhunpat v. Saraswati, i. L. R. 19 Cai. 267,
 
 PUTNI TALUQS. 1 55 
 
 of the defaulter, become voidable. The purchaser is 
 entitled to have possession of the taluq in the same 
 state as it stood at its creation by the zemindar, free of 
 all incumbrances, i Adverse possession of any part 
 of the lands either by a neighbouring landlord or by 
 any person claiming a lakhiraj title is an incumbrance 
 which the purchaser is entitled to get rid of. Any in- 
 cumbrance created or allowed to remain on the taluq 
 by the act or omission of any taluqdar, whether the 
 defaulter himself or a previous holder or any person 
 who had previously made default which ended in a sale of 
 the putni for arrears, is voidable. - But the purchaser 
 must exercise his option within twelve years from the 
 date of his purchase or rather the confirmation thereof 
 when the cause of action accrues ; and he must by some 
 act shew that he has exercised the power vested in him 
 by law to avoid incumbrances. They are not ipso facto 
 void, but are only voidable.-^ If however he has accepted 
 rent, his acquiescence may bar his right.* He cannot 
 sue the raiyats for rent, when there is an intermediate 
 holder, before getting a decree for possession against 
 such intermediate holder. I need hardly repeat that 
 the incumbrances which a purchaser is entitled to avoid 
 must be such as have come into existence since the date 
 of the creation of the putni taluq. ^ Any incum- 
 brances existing from a previous date are not such as 
 are void or voidable. Any under-tenure or incumbrance 
 
 ' Reg. VIII of 1819, Sec. ii ; Miissamat v. Luckheemonee, S. D A. 
 '850, p. 349; Oomanath v. Roghoonath, W. R., F. B., 10, sc, i Hay 
 75 and Marsh 43; Brojo v. Futick, 17 W. R. 407 ; Gopendra v. Mokad- 
 dam, I. L. R. 21 Cal. 702. 
 
 ' Gopendra v. Mokaddan, I. L. R. 21 Cal. 702. 
 
 « Modhoo V. Ramdhun, 12 W. R. 383, sc, 3 B L. .R 431 • Uma v. 
 Mothoora, I. L. R. 4 Cal. 860 ; Tetu v. Mohes, I. L. R. 9 Cal. 683, sc, 
 12 C. L. R. 304. 
 
 * Srishteedhur v. Prannath, S. D. A., 1858, p. 170 ; Sreemunt v. 
 Kookoor, 15 W. R. 481. 
 
 ' Bishumbhur v. Doorga, S. D. A., 1858, p. 369.
 
 156 PERMANENT TENURES. 
 
 created with the permission of the proprietor is also 
 not voidable.' Standing as the representative of the 
 zemindar, the purchaser is affected by the same rules of 
 limitation and the same rules as to the onus of proof as 
 the zemindar himself. The burden of proof is in the 
 first instance upon the purchaser to shew when the in- 
 cumbrance was created. But as soon as he makes out 
 this prima facie case, the burden is shifted, and the 
 holder of the incumbrance has then to shew that he is 
 protected either on account of the consent given by the 
 zemindar or for any other reason valid in law. 
 
 Merger. [f the zemindar himself is the purchaser, his position 
 
 is the same as that of a stranger purchasing the prop- 
 erty. Limitation which would run against the defaulting 
 putnidars would not bar him. Neither does the law of 
 merger — the extinction of the putni right in the higher 
 right as zemindar — necessarily apply, as the common law 
 about merger, applicable in England, is not applicable in 
 this country. The doctrine of equitable merger which 
 depends upon the intention of the parties ought to be ap- 
 plied to transactions in this country, unless there is ex- 
 press legislative enactment to the contrary. A zemindar 
 purchasing a putni under him, in a sale either for arrears 
 or under an ordinary decree of a civil court, has, qua the 
 putni, the position of a putnidar,' unless by his acts and 
 conduct he shews that he intends to deal with his two 
 rights as one, the inferior right merging in the superior. 
 
 Protefted in- There are certain rights in land which are protected 
 
 notwithstanding a sale under the Regulation Khodkast 
 raiyatsor resident hereditary cultivators are not liable to 
 ejectment, and honafide engagements with them by the 
 defaulter cannot be interfered with by a purchaser.* But 
 
 ' Pe^ree «. Meet, S D A., 1857, p. 1310. 
 
 •■' Jibanfi v. GoUool, I. L R. 19 C.1I. 760. But see R.ij v. Woomesh, 
 8 W R. 444, ind |()i>ra v Ahoo, 21 W. R. 427. 
 
 • Reg VIII of 1819, Sec. 11, cl. 3 ; Magar.-im 7» Rajah, 2i W. R. 
 326, jr., 13 B. L R 198. 
 
 terests.
 
 PUTNl TALUQS. 1 H < 
 
 if it can be proved in a regular suit that a higher rate was 
 demandable from any raiyat at the date of the engage- 
 ment, the rent of such a raiyat may be adjusted. Not- 
 withstanding that the Regulation speaks only of khodkast 
 raiyats, I presume occupancy and non-occupancy raiyats 
 are also protected. Protection from ejectment ought ex- j 
 
 pressly to be extended to all classes of tenure-holders 
 and raiyats included in section i6o of the Bengal Tenancy 
 Act (VIII of 1885.) 
 
 The distribution of the surplus sale-proceeds on a Distribution 
 
 sale under the Regulation is dealt with in section 17. of surplus 
 
 _° _ ' sale-pro- 
 
 The Government is entitled to one per cent upon the ceeds. ] 
 
 net proceeds realised by the sale. Next, the zemindar J 
 
 gets the amount due to him with costs incurred by him ] 
 
 in bringing the putni to sale. The remainder is in the 
 
 first instance kept in deposit in the Collectorate to 
 
 answer the claims of subordinate tenure-holders. If a 
 
 subordinate tenure-holder has paid the rent due by him , 
 
 to the putnidar, he is entitled to bring a suit for com- j 
 
 pensation against the putnidar for his loss on account \ 
 
 of the putni-sale ; and a decree may be passed in 
 
 his favour for compensation which should be directed I 
 
 to be paid out of the surplus sale-proceeds. But if 
 
 any part of the amount due by the durputnidar as rent 1 
 
 has remained unpaid, he is not entitled to bring a suit \ 
 
 for damages, and has no claim to compensation,^ The ' 
 
 principle seems to be that negligence on the part of a ] 
 
 durputnidar in not fully paying the amount due by him 
 
 may have contributed to the non-payment by the putnidar j 
 
 of the amount due by him to the zemindar. Any express | 
 
 contract between a putnidar and a durputnidar, as to the ' 
 
 division of the surplus sale-proceeds, has always to be j 
 
 taken into consideration. Any suit under the Regulation ' 
 
 by the durputnidar, claiming a part of the surplus sale- 
 
 1 Ram 1). Kishen, S. D. A., 1845, p. 155; Fukeer v. Hills, 7 Sel. Rep. 
 rS4 : Issan 7). Tareenee, Sev. 84; Surnomayi v. Land Mortgage Bank, 
 I. L. R. I Cnl. 173.
 
 I^S PERMANENT TENURES. 
 
 proceeds, must be brought within two months from the 
 
 date of the sale, otherwise the defaulter may claim to 
 
 have the money paid out to him/ 
 
 The right of fhe rights of mortgagees of putni taluqs are not dealt 
 
 mortgagees to . , , , „ i • r-i . , i i ^ i 
 
 follow the With by the Kegulation. But the surplus sale-proceeds 
 
 sale-proceeds, ghouid be considered to represent the mortgaged prop- 
 erty, and a mortgagee will be entitled to be paid out in 
 the first instance therefrom.'^ In the case of a contest 
 between the mortgagee and the durputnidar, a question 
 of priority may arise which, I presume, will be answered 
 according to the law as laid down in the Transfer of 
 Property Act, and the principles of equity and good con- 
 science, which the legislature in this country directs to 
 be applied wherever the positive law is silent. 
 
 Arrearsof rent Antecedent balances due by the putnidar to the zemin- 
 
 for the period ^ namely, those that are not covered by the summary 
 antecedent to ' •' ' _ -' -' 
 
 the sale. proceedings under the Regulation, become mere persona/ 
 
 debts of the individual taluqdar, and must be recovered 
 in the same way as other debts, by a regular suit in the 
 civil court. Arrears that have accrued subsequent to 
 the application under the Regulation are a charge 
 on the taluq, and the purchaser is bound to pay the 
 same. He cannot excuse himself by pleading that he has 
 taken possession after a part of the arrears accrued. 
 Such arrears are realizable by the summary process. 
 If a putni taluq is sold for arrears of rent in execution 
 of a civil-court decree and the sale is confirmed within 
 the first six months of the Bengali year, a question arises 
 as to the right of the zemindar to bring the putni to sale 
 under the Regulation for the entire arrears of the first 
 six months. I he High Court at Calcutta has answered 
 the question in the affirmative.* 
 
 ' This rule of limitation does not apply where there is a special con- 
 tr»6t between the putnidar and the durputnidar. — Judoo v. Nobo, 
 3 W. R. 2. 
 
 2 Aa IV of 1882, Sec. 93 ; Gosto v. Shib, I. L. R. 20 Cal. 241. 
 
 • Makhan Lai Roy and others v. Banbehari Kapiir. Sp. App. No. 
 306 of 1891, decided on the 19th August, 1892.
 
 PUTNl.TALUQS. _ 1 55 
 
 A purchaser of a putni taluq under the rules laid Registration 
 
 down in the Regulation is entitled to have his name ^['^lepur- 
 
 ° _ chaser s 
 
 registered in the proprietor's office and to obtain posses- name. 
 
 sion without the payment of any fee, but he is liable to 
 
 be called upon to give security under the conditions 
 
 of the tenure purchased.* A purchaser at a sale 
 
 under a decree for arrears of rent held by a civil court 
 
 or by a Collector under Act X of 1859 '^ also entitled to 
 
 be registered without fee." 
 
 A purchaser at a sale under an ordinary civil-court Registration- 
 decree, or a voluntary alienee is required to pay to the fee and se- 
 proprietor a registration-fee at two per cent on the rent, ^"'^' ^' 
 the maximum sum being Rs. 100.^ He may also be 
 required to furnish security to the extent of one-half of 
 the annual rent.* If no security be given, the taluq 
 may be attached by the proprietor and kept in the 
 possession of sezawal or curator. Any question as to 
 sufficiency of the security may be determined by the civil 
 court of the district' and the judgment of such court is 
 final. ^ The zemindar cannot bring a suit for compelling 
 the purchaser^ to give security. 
 
 The registration of name in the landlord's office Effeft of reg- 
 is one of great importance to the outgoing putnidar 
 as well as the purchaser. The outgoing putnidar is 
 
 ' Reg. VIII of 1819, Sees. 
 
 * Aa X of 1859, Aft VIII (B.C.) of 1869, and Aft VIII of 1885, 
 
 Sec. 14. 
 
 ' Reg. VIII of 1 81 9, Sec. 5; Aa X of 1859, Sec. 27, and Aa VHI 
 (B C.) of 1869, Sec. 26 and Aa VIII of 1885, Sec . 12 Seaions 13 and 
 14 of the latter Aa make provision in cases of execution-sales. But 
 see seaion 195, cl. {e) of Aa VIII of 1885 and Gyanada v. Bromomoyi, 
 I. L. R. 17 Cal. 162. 
 
 * Reg. VIII of 1819, Sees. 5 and 6, 
 
 * Ibid., Sec. 6 Can security be required on a sale in the civil court 
 for arrears ? 
 
 s Rajah v. Bissen, S. D. A., 1859, p. 1216; Huree v. Soorja, 25 W.R. 
 222; in re Soorjakant, I. L. R. i Cal. 383. 
 ' Joy ■:;. Jankee, 17 W. R. 470. 
 
 istration.
 
 f6o 
 
 PERMANENT TENURES. 
 
 thereby freed from all peiSDiial liability^ on account 
 of arrears accruing subsequent to the cessation of his 
 possession; and the registration of the purchaser's name 
 entitles him to deal directly with the landlord and to 
 haveinotices and summonses of all proceedings and suits 
 for recovery of arrears of rent. He thus gets a direct 
 opportunity of protecting the tenure. If the purchaser's 
 name is not registered in the landlord's office, the latter 
 may bring suits against the registered putnidar for re- 
 covery of arrears of rent, or institute proceedings under 
 the Regulation, and the effect of the sale thereunder 
 will be the same as if the purchaser has himself been 
 sued,- unless it can be proved that fraud has vitiated the 
 sale. On a sale in suits or proceedings against the regis- 
 tered taluqdar, a durputnidar or a mortgagee may be 
 affected in the same way, as if the proceedings were 
 against the actual putnidar. The non-registration of 
 name in the landlord's office does not, however, make 
 the alienee a trespasser. He becomes, to all intents and 
 purposes, the putnidar, subject only to the disabilities 
 stated above. ^ It should be noted that applications 
 for registration of name may be made,'^or suits for 
 compelling the landlord to register may be instituted at 
 any , time '^after_ the purchase, and there islno.bar;of 
 limitation,"^ the cause of J action being a^recurring one. 
 The:provisions of the Bengal Tenancy Act with res- 
 pect to the registration, of I permanent ^tenures in the 
 zemindars' office as contained in sections 12, 13, 14, 15 
 and ( 16 of the Act have been held to be supplementary 
 to the provisions contained in the Regulation.' 
 
 ' R. Watson v. Colleftor, 13 'M.' I A. 160; Lukhi. v. Khettro, 13 
 B.L.R. 146, sc, 20 W. R., P.C, 380. 
 
 • Kristo 1). Mackintosh, W. R. (1864), p. ^53;; Raghub r. Brojonalh, 
 14 W. R. 489; Ram v. Sreemutty, 17 W. R. 122. 
 
 • Ram V. Twecdie, 12 W. R. 161. 
 
 * Govind v. Rungo, I. I.. R. 6 Cal. 60; Ishan v. Chandra, I. (.. R. 6 
 Cal. 70. 
 
 * Durga V. Bindabun, I. L. R. 19 Cal. 504.
 
 PUTNI lALUCJS. I (3 I 
 
 The laws in force tor the recovery of government rev- Common and 
 
 enue declare that, on a sale of an entire estate for special regis- 
 ' _ try of taluqs. 
 
 arrears, " the purchaser shall acquire the estate free 
 
 from all incumbrances, which may have been im- 
 posed upon it after the time of settlement, and shall 
 be entitled to avoid and annul all under-tenures and 
 forthwith to eject all under-tenants," with certain ex- 
 ceptions,^ one of which is taluqdari tenures such 
 as putnis and dependent taluqs duly registered under 
 the provisions of Act XI of 1859.- The registration 
 under the Act is either common or special.'' Common 
 registry secures such tenures and farms against any 
 auction-purchaser at a sale for arrears of revenue, 
 except the Government. Special registry secures such 
 tenures and farms against any auction-purchaser at a 
 sale for arrears of revenue, including the Government. 
 Applications to the Collector for registration of tenures, 
 created before the passing of Act XI of 1 859,were required 
 to be made within three years from the 21st April, 1862.-^ 
 Applications for the registry of tenures, existing on 
 the 2ist April 1862, but created after the passing of 
 Act XI of 1859, were required to be made within three 
 months. An application for the registration of any tenure, 
 created after the passing of Act III of 1862 (21st April 
 1862), must be made within three months from the date 
 of the deed constituting the tenure. Objections to the reg- 
 istration of tenures under Act XI of 1859 may be sum- 
 marily dealt with by the Collector, and the Collector may 
 also suspend the proceedings pending a decision by the 
 civil court, the decision of such court being final. ^ But no, 
 civil court can direct special registration by the Collector, 
 and no special registration can be effected without the 
 sanction of the Revenue Commissioner of the Division.*^ 
 
 ' Aft XI of 1859, Sec. 37. See also Aft VII (B C.) of 1868, Sec. 12. 
 2 Aft XI of 1859, Sec. 37, cl. 3. ' Aft XI of 1859, Sec. 39. 
 
 ' Aft III (B.C.) of 1862. ' Aft XI of 1859, Sec. 41. 
 
 « Aft XI of 1859, Sec. 42. 
 U
 
 l62 
 
 PERMANENT TENURES. 
 
 Sales subjea The purchaser of a share or shares of an estate, 
 
 to incum- i i r r i , • 
 
 brances. sold tor arrears oi revenue, purchases subject to 
 
 incumbrances, and does not acquire any rights which 
 were not possessed by the previous owner or owners. ^ 
 Benamt purchases by defaulters, even of an entire estate, 
 have also the same effect upon incumbrances.- If the 
 purchase be made by one or more of a large number of 
 defaulters, the result is the same as regards holders of 
 incumbrances. •' 
 Sales free of Taluqs not registered in the common or special reg- 
 
 incumbrances inters are liable to be avoided by a purchaser of an entire 
 estate. An assignee of such a purchaser has also the 
 same right, though the privilege has not been extended 
 to assignees of fractional shares.^ The burden of proving 
 that the taluq came into existence subsequent to the Per- 
 manent Settlement is upon the purchaser. But a prima- 
 facie case being made out, the onus shifts, and it is 
 then for the defendant to make out a case which would 
 bring the tenure within any of the exceptions to section 
 37 of Act XI of 1859.^ The period of limitation of suits 
 to avoid incumbrances is twelve years from the date when 
 the sale becomes final and conclusive.'' 
 Road and ^^^ amount of road and public w^orks cesses, payable 
 
 Public-works by taluqdars, is leviable according to the provisions of 
 section 41, clause 2 of the Cess Act of 1880." The clause 
 runs thus — " Every holder of a tenure shall yearly pay to 
 the holder of the estate or tenure within which the land 
 
 cesses. 
 
 ' A61 XI of 1859, Sec. 54. See also Sec. 53. Alum v. Ashad, 16 W. R. 
 138; Kasit^. Banku, 3 B.L.R., A. C, 446; Madliub v. Rnja, 20 W.R. 264. 
 
 * Imambandi T. Kamaleswari, 1 L R. 14 Cal. 109; Rashbehari 1;. 
 Purno, I. L. R. 15 Cal. 350 
 
 ■" A«!^ XI of 1859, Sec. 53 Mahomed v. Pearee, 16 W.R. 136; Abdool 
 V. Ramdass, I. L. R. 4 Cal. 607. 
 
 ' Koylash v. Jubur, 22 W. R. 29. 
 
 * Forbes v. Ameeroonissa, to M. I A. 340, at., 5 W. R., P.C , 47 \ 
 Rnja Sahib Prahlad v. Baboo Budhu, 2 B.L R. in; Rashbehari t. 
 Haramoni, I.I,.R. 15 Cal. 555. 
 
 '■ Aa XV of 1877, Sch. II, art. 121. 
 ' Aft IX (B. C.) of 1880.
 
 CESSES. 
 
 163 
 
 held by him is included, the entire amount of the road cess 
 and public-works cess, calculated on the annual value of 
 the land comprised in his tenure at the rate or rates which 
 may have been determined for such cesses respectively for 
 the year as in this Act provided, less a deduction to be 
 calculated at one-half of the said rates for every rupee 
 of the rent payable by him for such tenure". Every 
 taluqdar is, under this clause, bound to pay to the 
 zemindar for the two kinds of cesses a sum calculated 
 at one anna per rupee on the amount given in the valua- 
 tion-roll of the taluq, less a half-anna for each rupee of the 
 rent payable by him. He is himself entitled to realize one- 
 half of an anna for each rupee of rent payable by the 
 raiyats, and he is thus made to pay from his own purse 
 half an anna on each rupee of his profits. But 
 he may, notwithstanding this statutory provision, be 
 bound by any contract with the zemindar to pay the 
 entire amount of the cesses realizable by the Collector 
 for the taluq. His liability is determined by the terms 
 of the contract. It very frequently happens that, by the 
 terms of the lease, the zemindar is entitled only to 
 a net income in the shape of an annuity, the taluqdar 
 being bound to pay all items of demand by the 
 Government. ^ 
 
 Cesses are recoverable in the same way, and under Cesses re- 
 
 the same procedure, and in similar instalments, as rent, coverable as 
 
 ... rent, 
 
 though they cannot be, strictly speaking, rent. - They 
 
 are not charges ou the tenure in the same way as rent, 
 
 and a sale, for arrears of cesses only, has not the same 
 
 effect as to incumbrances as a sale for arrears of rent. 
 
 There are various other kinds of taluqs held directly other kinds 
 
 under the zemindars at fixed rent, in perpetuity, known, of taluqs. 
 
 in Bengal, by different names in different districts. Their 
 
 ' Surnomoyee v. Koomar, I. L. R. 4 Cal. 576. 
 
 " Aft IX (B.C.) of 1880, Sec. 47. For definition of rent— see Sec. 3 of 
 A6t VIII of 1885 ; Uma Charan v. Ajadannissa, I. L. R. 12 Cal, 430.
 
 '^4 PERMANENT TENURES. 
 
 incidents are the same as those of dependent and putni 
 taluqs. Every district has peculiar names for these tenures 
 and subordinate tenures or under-tenures, with various 
 shades of rights and liabilities. The legal profession 
 and the judges administering law are constantly puzzled 
 with local names and local peculiarities. Sufficient data 
 have not yet been obtained with respect to them, and 
 even if they are available, it will be difficult to lay down 
 rules for the guidance of courts, except by taking the dif- 
 ferent localities piecemeal. In many instances, the rights 
 and obligations of the holders are regulated by custom. 
 Constru(5lion The holde.s of permanent taluqdari tenures are not 
 
 leases"'' ^" 'iable to ejectment, except on breaches of contract. 
 They are generally heritable and transferable. ^ But 
 exceptions are not unfrequent. Taluqdari grants for 
 life only, though at fixed rent, are not uncommon ; 
 and it has been held that a lease, at fixed rent, 
 without words creating a heritable or transferable 
 right, is a lease for life only, with reversion to the 
 landlord.-' But every grant must be construed accord- 
 ing to the ordinary rules of interpretation, - custom and 
 usage in the locality, the surrounding circumstances, and 
 the way in which the lands demised has been dealt with 
 by the parties being taken into consideration." If the 
 zemindar has allowed sons and grandsons in succession 
 or alienees after alienees to hold a tenure, the presump- 
 tion will be that it is heritable and transferable, even 
 without express words to that effect in the grant. 
 King the uiti- A permanent tenure being heritable and transfer- 
 
 mnte heir. able, the king is the ultimate heir in default of any 
 
 other heir, and not the zemindar in whose estate the 
 tenure is situated. The zemindar has no reversion.* 
 
 ' Aa VIII of 1885, Sec. 10. 
 
 •' Tulshi V. Ram, 1. I.. R. 12 Cal. 117, sc, I.. R. 12 I. A. 205. 
 ■' Bilas V. Raja, 1. I.. R. 8. Cal. 664, sc, L. R. 9 1. A. 33, sc, 11 
 C. L. R. 215. 
 
 ' Soncl .■■ Ilimmnt, I I.. R l Cal. 30t.
 
 ENHANCEMENT OF RENT. 165 
 
 These taluqs are partible as any other property, and Partition of 
 
 ,...,... T .• 1 taluqs. 
 
 civil courts have exclusive jurisdiction in directing and 
 effecting partition. But the zemindar is not bound to 
 apportion the rent payable to him on a division of the 
 taluq. ^ He is at liberty to hold the entire taluq 
 liable for the entire rent without reference to the divis- 
 ion made amongst the co-sharers. 
 
 We have already seen that if a taluq has been in Effeftof mere 
 existence either from before or from the exact date of the ^^l right°to° 
 Permanent Settlement, and the rent has never been enhance, 
 varied, it acquires fixity by the operation of Act X 
 of 1859.- A mere declaration in a decree that any 
 such tenure was liable to enhancement, if there was 
 actually no enhancement of rent, would not prevent 
 the operation of the statutory provision contained in 
 section 15 of Act X of 1859, or section 50 of the 
 Bengal Tenancy Act. 
 
 A dependent taluq, of which the rent has varied Ejeament. 
 from the date of the Permanent Settlement, is not 
 liable to be annulled on the sale of an entire estate for 
 arrears of revenue under Act XI of 1859. The exemp- 
 tion, however, with reference to these taluqs, existing at 
 the time of the Settlement, but not at fixed rent, is only 
 as respects ejectment, but not enhancement."^ The rent 
 is liable to be enhanced at the instance of the purchaser 
 of an entire estate, in the same way and under the same 
 conditions as at the instance of any other holder of the 
 estate.^ The policy of the earlier sale-laws and the 
 Settlement Regulations was not to eject tenure-holders, 
 but to cancel their leases and to allow them to hold on 
 upon payment of customary rent. This policy was in 
 accordance with the common law and the established 
 usages of the country ; but it has been ignored in later 
 
 ' Aa VIII of 1885, Sec. 88. 
 
 '^ Ante p. 137-8. ' Aa XI of 1859, Sec. 37, cl. 2. 
 
 * Ante p. 140.
 
 ^^^ PERMANENT TENURES. 
 
 days on account of the introduction by English lawyers 
 of English notions of proprietary right and competi- 
 tion-rent. The existence up to this day of a good many 
 dependent taluqs, created without any contract of fixity 
 since the 22nd March 1793, is due to the earlier statutory 
 provisions against ejectment. Some of the contracts 
 with dependent taluqdars contain stipulation to pay 
 enhanced rent, on general measurement and assessment, 
 at customary rates, and such agreements have been en- 
 forced ; but as regards others, the law made no provision 
 until the Bengal Tenancy Act of 1885 was passed. The 
 rules laid down in section 51 of Regulation VIII of 
 1793, and the corresponding rules in other Regulations, 
 were consonant with principles of equity and good con- 
 science, and the customary law of the country, and 
 courts were guided in all cases by these rules without ref- 
 erence to the date of the creation of a dependent taluq. 
 The Bengal Tenancy Act has, as we have already seen, 
 adopted the rule with slight modifications ; and I shall 
 now draw your attention to the sections of that Act 
 dealing with the subject. 
 Enhancement Section 7 of the Act says that the rent of a taluq may 
 
 of rent of ui_ j ii'-ri ii 
 
 Taluqs. "^ enhanced up to the limit of the customary rate payable 
 
 by persons holding similar tenures in the vicinity. This 
 is also the rule laid down in the Regulation of 1793.^ 
 The difficulty of finding out the customary rate was long 
 felt, and in some instances when the rate was found out, 
 the enhancement was excessively high, considering the 
 amount paid just before the enhancement. Act X of 1859 
 made rules for theenhancement of rent of raiyati holdings, 
 but there were no rules for taluqs and other intermediate 
 permanent tenures. The grounds of enhancement laid 
 down in section 17 of that Act and the corresponding 
 section of Act VIll (B. C.) of 1869 were not applicable 
 
 ' Reg. VIII of 1793, Sees, 49 and 51 ; Bama v. Radhica, 13 M. I. A. 
 
 248.
 
 TALUQS. 167 
 
 to taluqdari tenures. Suits for enhancement of rent of 
 such tenures generally failed for want of evidence as to 
 customary or perganah rates , and in many cases, courts 
 simply granted decrees declaring the liability of the tenure 
 to enhancement, without being able to grant consequential 
 relief. It was, therefore, thought necessary to lay down 
 definite rules in the Bengal Tenancy Act. Though 
 the rates payable by taluqdars and those payable by 
 raiyats are different, courts in some instances, in the 
 absence of definite rules, decreed suits for enhancement, 
 giving the taluqdars reasonable amounts for collection- 
 charges and profit. There was, however, no rule for 
 determining what was reasonable profit. According- 
 ly, the Bengal Tenancy Act has laid down, that in 
 the absence of evidence as to customary rate, rent 
 may be enhanced up to such limits as the court thinks 
 fair and equitable.^ The Act also lays down what 
 fair and equitable rent is.- In order to avoid the 
 hardship of an excessive immediate increase of rent, 
 power is given to order gradual enhancement yearly 
 for a number of years, not exceeding five, until the 
 limit of the enhancement allowed has been reached.^ 
 The Act also provides that when rent of a tenure- 
 holder has been enhanced by the Court or by contract, 
 it shall not again be enhanced by the Court during the 
 fifteen years next following the year in which rent 
 at the enhanced rate is first allowed to be levied.* 
 
 The protection, which the law has afforded to tenures Remarks, 
 existing at the date of the Settlement, ought, with 
 modifications, to be extended to other tenures of long 
 standing, in consonance with the provisions of the 
 earlier Regulations of the Bengal Code. As the law 
 now stands, such tenures have no permanency, and in the 
 absence of any contract, they are liable to be cancelled 
 
 ' Aa VIII of 1885, Sec. 7, cl. 2. 2 Aa VIII of 1885, Sec. 7, cl. 3. 
 ' Aa VIII of 1885, Sec. 8. ^ Aa VIII of 1885, Sec. 9.
 
 1 68 PERMANENT TENURES. 
 
 and determined by proper notice. The purchaser on a 
 sale for arrears of revenue of an entire estate may deal 
 with the holders of these tenures as trespassers, and may 
 eject them without notice, some overt act indirative of 
 tlie desire of the purchaser to avail himself of the 
 stringent provisions of section 37 of Act XI of 1859 
 being sufficient to give a cause of action for the institu- 
 tion of a suit for ejectment.
 
 LECTURE VI. 
 
 ■^j '^tO o " 
 
 PERMANENT TENURES 
 
 AND 
 
 UNDER-TENURES. 
 
 We have already seen^ that the Smritis, the record- Intermediate 
 
 ed utterances of the law-givers of ancient India, afford J^""res un- 
 
 '^ ^ ' known in 
 
 no indication that intermediate holders were recognised earlier times, 
 or even known in those days. The owner of the land, 
 whether an individual or a joint family consisting of 
 coparceners, cultivated it with the occasional assistance 
 of servants and hired labourers — the hire being generally 
 the payment of a share of the crops. The system of 
 intermediate holding originated, in all probability, 
 under Mahomedan rule. The financiers of the Afghan 
 and the Moghul emperors attempted, now and then, 
 to put down the growing system, but without suc- 
 cess. It made extraordinarily rapid progress about the 
 time of the downfall of the imperial power at Delhi 
 and the first establishment of the British rule. Causes Causes that 
 
 which led to the feudalization of Europe were at 'ed to the 
 
 ^ . creation or in- 
 
 work at this time, just as they were about the time termediate 
 of the breaking-up of the Carlovingian Empire. As ^^""'^^s. 
 each satrap under the Great Moghul aspired to 
 independence and hereditary kingship, each subor- 
 dinate holder was anxious to have a similar kind of 
 permanent and hereditary interest in the land held 
 by him ; and the idea being once in, it filtered down 
 to the lowest strata of intermediate holders. Eject- 
 ment under legal right and legal procedure was unknown, 
 and was looked upon with horror by a people, fond, more 
 than any other on the face of the earth, of holding the 
 
 ' Ante'^ 12. 
 V
 
 17° PERMANENT TENURES. 
 
 same piece of land for generations — ' as long as the sun 
 and the moon shine on the horizon.' Each holder of land, 
 if he had any self-respect and status in society, thought 
 that some sort of recognition should be had for holding, 
 in perpetuity, lands occupied by himself, and occupied 
 by the poor peasantry, who hung upon him for protection 
 against illegal eviction. The nomadic life which it 
 is said by liigh authorities, was led by the ancient 
 Aryans was long forgotten. There was a material 
 change in the thoughts and ideas of the descendants of 
 these Aryan immigrants, if they had really come from 
 a land outside the natural boundaries laid down by 
 the Indus and the snow-clad range. The desire in some 
 landlords of retiring with an annuity from the troubles 
 and difficulties of managing their estates, and, the 
 desire in enterprising men of making profit by enhanc- 
 ing the rent of raiyats and bringing waste lands into 
 cultivation, led to subinfeudation in very many cases. 
 Various other causes also operated to bring about the 
 creation and recognition of subordinate riafhts in land, 
 and thus a large number of tenures and subordinate 
 tenures came into existence. We have already dealt with 
 dependent and putni taluqs which fall under the highest 
 class of tenures. 
 
 Tenures may, in general, be classed as follows, 
 namely : — 
 Classification (^) Mant'usi 'heritable^, (/;) Miikurrari (at fixed 
 
 o nterme- rent), and (ci Maurvsi mukurrarH\\^x'\\.?i}o\it and at fixed 
 uiate tenures. /■ v \ 
 
 rent). Similar holdings directly under the holders of 
 any of these classes of tenures are known respect- 
 ively as durmaurusi (hereditary of the second degree), 
 dtirmukurrnri fat fixed r-nt of the second class), and 
 dtirmau rasi-inukurrari {here^h^ry and at fixed rent of 
 the second degree). If, again, grants are made by the 
 holders of these under-tenures, th' under-tenures thus 
 created are respectively called sc-niaunisi (hereditary of 
 the third degree), sc-mukurrari {^i fixed rent of the third
 
 CLASSIFICATION. I71 
 
 degree) and se-maurusi-mukurrari (hereditary and at 
 fixed rent of the third degree\ Similarly, there may 
 be under-tenures of the fourth grade (cliahar-maiirusi &ic.) 
 and further infeudation. Putni taluqs, durputni taluqs or 
 se-putni taluqs are in reality mukurrari and maurusi, 
 durmukurrari and dur-maurusi, and se-mukurrari and 
 se-maurusi tenures and under-tenures, the distinction 
 being that the putni class covers an entire village or 
 villages in revenue-paying estates, while the latter class 
 covers portions of land within defined boundaries, or 
 are demises of land held revenue-free. There is 
 also another distinction— •y/^., taluqs are always grants 
 of intermediate tenures between the zemindar and 
 the raiyat, while mukurraries are not necessarily 
 grants of intermediate tenures. A^'^'wrar/ grants com- 
 bine the two qualities of the mukurrari andi the maurusi. 
 In their broad features, all grants of tenures in perpe- 
 tuity and at fixed rent, or with either of these qualities, 
 by whatever name they are designated, come within 
 the classes I have indicated above. 
 
 Tenures held at fixed rent and in perpetuity {istem- Rg^t. 
 rari or mukurrari and maurusi) are in reality instances 
 of alienations of land, subject only to payment, by the 
 alienees and all persons holding through them, of fixed 
 sums in perpetuity to the alienors and those claiming 
 under them. This sum is called rent in the English 
 language, though, in reality, it is an annuity with a 
 charge on the land demised. Under the Mahomedan law 
 as administered in India, the amount payable was not a 
 charge — it was merely a personal obligation in the 
 tenure-holders. Even after the Rent Act of 1859 had come 
 into force, and for a long time afterwards, the judges 
 were not agreed as to whether rent was a charge on the 
 tenure.i The doubt, however, has been set at rest by 
 
 ' Pran v. Surbo, lo W. R. 434; Ram ^;. Hridoy, 10 W. R. 446 ; 
 Samiraddi t^. Haris, 3 B. L. R., A. C, 49; Dowlut v. Moonshee, 15 
 W. R, 341 ; Wahed v. Sadiq, 17 W. R. 417-
 
 17^ PERMANENT TENURES. 
 
 the legislature in section 65 of the Bengal Tenancy 
 Act which makes rent the first charije/ In the view of 
 the framers of the Regulation Laws in Bengal, the 
 transfer of land at fixed rent in perpetuity was a transfer 
 of proprietary right. They did not use the word rent 
 with reference to this annuity payable to the transferor, 
 but used the word revenue. I^ater on, a distinction 
 was made between revenue and rent- — a distinction 
 drawn from a similar use of the words in England. 
 The term revenue, used with reference to land, is now 
 understood to mean the amount which is paid by the 
 superior landowners to the State, while rent is theamount 
 payable to the superior landowners by those who hold 
 under them, whether they are the actual occupants or in- 
 termediate holders. The word r^;//* has been very broadly 
 defined in the Bengal Tenancy Act, and, I believe, the 
 definition is practically accepted even in districts to 
 which the Act has not been extended, i.e., Orissa and the 
 Scheduled districts. " Whatever is lawfully payable or 
 deliverable in money or kind by a tenant to his land- 
 lord on account of the use or occupation of the land, 
 held by the tenant" includes all kinds of rents, even 
 quit-rent.'^ Under that Act, the Government is a land- 
 lord with respect to the khas nichals,*' and it follows, 
 therefore, that with respect to the khas ineha/s, the 
 amount payable to the State by a tenant is also rent. 
 The amount payable by a tenant at a fixed rate in perpe- 
 tuity is thus called rent, and even if, instead of a fixed 
 sum of money, a fixed amount of corn or any other pro- 
 duct, such as a fixed number of mangoes, be agreed to be 
 supplied yearly for the use of the land, it must be called 
 rent} This use of the word in cases of maurusi viukur- 
 
 ' Aa VIII of 1885, Sec. 65. 
 
 " Piziruddin i;. Madhusudan, B. L. R., Sup Vol., 75; Mahomed 
 Akil V. Asadunnissa, B. L. R., Sup. Vol., 774. 
 •' AH VIII of 1885, Sec. 3, cl. S. 
 ' AcH Vlii of 1885, Sec. 3, cl. 4. » Nuboi<. Gray, 11 W. R. 7.
 
 RENT. ^73 i 
 
 rari leases is also in consonance with the Transfer 
 of Property Act/ which includes permanent tenures 
 at fixed rent within the definition of leases of im- 
 movable property. We have, in this use of the word 
 rent an instance of an unconscious, though a com- 
 plete, change of ideas from what the early British 
 rulers in India entertained, as to the legal effect of the i 
 
 transfer of property in the soil by means of grants in 
 perpetuity. The Hindu conception would make the \ 
 
 actual occupant the master or lord of the soil ; the Afghan 
 and the Moghul sovereigns would ignore the actual 
 occupier and assume proprietorship in themselves ; the j 
 
 early British rulers of India, conceiving the right to be 
 in the State, could and did transfer it, reserving only a 
 perpetual sum as land-tax ; and the modern legislator 
 would make the rent-receiver or the rent-receivers in , 
 
 succession the owner or owners of land, and according to 
 him, the rent-payer, though directly in occupation, paying 
 only a fixed sum in perpetuity and incapable of being 
 ejected (the rent-receiver having no reversion), pays 
 for the use and occupation only of the land. This 
 is anomalous —perhaps, an imperfection in language ; 
 but the anomaly cannot now be helped. It is the necessary 
 result of the use of foreign words to express Indian con- 
 ceptions. Such misuse of words is, however, common in 
 sciences other than the science of law, and however 
 much to be regretted, is unavoidable. 
 
 Where there are written contracts, the terms thereof Written con- 
 regulate the relation between the lessor and the S?/ °^ 
 lessee. But legal rules of interpretation have occa- 
 sionally to be invoked to find out the real intention of 
 the parties, whenever the language and the context 
 are inartificial or difficult to understand and reconcile. ! 
 
 The law, not unfrequently, affords protection, notwith- | 
 
 standing the express terms of a contract, when they are 
 
 ' Aa IV of 1882, Chap. V. ,
 
 nency. 
 
 '74 PERMANENT TENURES. 
 
 too hard and stringent, and when equity or public policy 
 requires that the parties should be released from their 
 operation. Rules of law have also been deemed to be 
 necessary for the protection of the lessors and their heirs 
 or assignees from the effects of alienation by the lessees 
 without the knowledge and consent of the lessors. In- 
 stances are also not uncommon of the instruments of lease 
 being silent as to matters of importance in the relation- 
 ship between the parties ; and customary and codified 
 laws, and customs, have to be invoked for the judicial 
 determination of the rights of the parties in such cases. 
 Presumption ^"t written grants are not always available. In most 
 
 of perm.i- cases, either they never existed or they are lost. In such 
 
 cases, presumptions of facts and occasionally positive 
 law are availed of to make up for a written instrument. 
 In the provinces in which the Rent Act of 1859 or the 
 Bengal'.Tenancy Act does not apply, the holding of land 
 for a very long time and by successive generations on 
 uniform payment of rent, may, in the absence of evidence 
 to the contrary, be sufficient for a presumption of a tenure 
 being permanent and at fixed rent by a grant which is lost.' 
 It may be asserted that in all such cases, it is reasonable 
 to presume, from the long occupation of land by the 
 first lessee and his sons and grandsons in succession and 
 on uniform payment of rent, that the original lessor in- 
 tended to create a permanent lease. If, in addition to the 
 mere holding at uniform rent, evidence be forthcoming of 
 transfers by the original grantor or his heirs, acquiesced 
 in by the other party, presumption may also be made 
 of the tenure being transferable. Such presumptions, 
 however, are always rebuttable. The presumption is 
 not based upon any artificial rule of law or legal 
 fiction, but it is an inference that may be drawn from the 
 
 ' Dukhina V. Kureemoollah, 12 W. R. 243: Nidhee v. Nistarinee, 2i 
 W. R. 386, sc , 13 B. L. R. 416; Ram v. Ram, I. L. R. 22 Cal. 533 sc, 
 L. R. 22 I A, 60.
 
 PRESU^rPTION OF PERMANENCY. 175 
 
 common course of natural events and human conduct/ 
 It is thus competent for a judge of facts to come to tilie 
 conclusion, from long existence of a tenancy, payment 
 of rent at the same rate, alienations from time to time, 
 erection of substantial works on the land, and similar 
 other matters, that the tenure must have been of a perma- 
 nent nature by the grant creating it, the use being the 
 best evidence of its nature.^ 
 
 The Indian legislature has, as we hnve already seen, Statutory 
 laid dowa positive rules, for making presumptions of ^' ^' 
 fact in such c ises. Taking the Permanent Settlement 
 of 1793 as the starting point, it has framed rules for the 
 assumption of a statutory title to permanency in favour 
 of persons holding land from that date on payment 
 of uniform rent. It is difficult, however, to prove pos- 
 session and payment of rent for such a long time ; and 
 possession for twenty years and uniform payment of 
 rent for that period raise a rebuttable presumption, not 
 of a grant which has been lost, but of possession and the 
 piyment of rent at the same rate from the time of the Per- 
 manent Settlement, In the provinces in which the Rent 
 Afts of 1859, 1869 or 1885 apply, a person who can shew 
 possession and payment of rent from the time of the Per- 
 manent Settlement, has the benefit of a perpetual lease, 
 irrespective of the existence of any original title-deed. 
 
 But if there be a title-deed of a date posterior to the when such 
 Permanent Settlement, or if it can be shown that the ^'^'^/gj""* 
 tenure was held on a terminable lease, the Rent Acts give 
 no relief, notwithstanding possession and uniform pay- 
 ment of rent. But a lease, renewing an old lease, the rent- 
 al remaining the same and not giving the superior holder 
 a right of re-entry, does not prevent the operation 
 of the statutes.^ It is, however, for the tenant to shew 
 
 I 
 
 Aft I of 1872, Sec. 114. 
 ^ 0/>timus interpres rertim ustis — Broom's Legal Maxims 
 3 Ram V. Romesh, 2 W R. ( Aft X ) 47 ; Kishen v. Eshan, 4 W. R. 
 ( Aa X ) 36 i Luch n^e v Koochil, 6 W. R ( Aft X ) 46 ; Greesh v. Kalee,
 
 176 PERMANENT TENURES. 
 
 that the new lease is only confirmatory, and if he cannot 
 do so, he will not be entitled to the presumption. Even if 
 he sets up a written lease which is found to be false, he 
 may in the alternative rely upon a statutory title. The 
 words in section 15 of Act X of 1859, are — "otherwise 
 than on a terminable lease." In the Bengal Tenancy Act 
 these words have been amplified into—" held for a term 
 of years or determinable at the will of the landlord." 
 Suits for en. The question whether any tenure or undertenure is 
 
 ancemen . permanent and held at fixed rent frequently arises in suits 
 for enhancement of rent or for declaration of the right to 
 enhance the rent, or for ejectment. The defendant claim- 
 ing to be a permanent tenureholder and relying upon a 
 statutory title, should plead' distinctly that the tenure has 
 been in existence on payment of uniform rent since the 
 date of the Permanent Settlement, and the issue in the 
 case is whether the tenure has been in existence from 
 that date and whether rent has been paid without any 
 variation. Strict rules of pleadings are not applied in this 
 country'^ and if the defendant's written statements con- 
 tain allegations sufficient for the court to come to a 
 finding of payment of rent at ^n uniform rate for 
 twenty years, the Court may give relief, as if a plea of a 
 demise from the Permanent Settlement has been raised.* 
 Proof of uniform payment of rent for twenty years, 
 preceding the year in which the suit was instituted, 
 raises a presumption in favour of the defendant's plea. 
 
 6 W. R ( Aa X ) 58: Sheikh t;. Poorno, 8 W R 129 ; Watson r. 
 Anjunna, 10 W. R. 107 ; Ram v. Jiighesh, 19 W. R. 353, sc , 12 B. L. R. 
 229; Pearee v. Koylas, 23 W. R.58; and Soorjo v. Pcaree, 25 W. R. 331. 
 
 ' Sheil<h Kkrami7. Bebee Buhooran, 2W R (AaX) 6;; Ghoora 7; 
 Otar, 4 W. R. ( Aa X) 15; Dhnn v. Chunder, 4 W. R ( Aa X ) 43. 
 
 - Mnnmohiin v. Hiisnit, 2 W R. ( Aa X ) 39; Sadiirk v. Mohamaya, 
 5 W. R. { Aa X ) 16: Rakhal v Kinoo, 7 W. R. 242 ; Miinee v. Anund, 
 8 W. R. 6; Hunick v. Toolspc, 1 1 W. R 84 ; Bhoyrub v. Mutty, W. R.. 
 Sp. Vol. ( Art X ) 100. See also Watson v Chota, Marsh 6S and 
 MiiRno V. Hnro, f. W R ( Aa X ) 27 
 
 ^ Dhiin V. Chunder, 4 W R. ( Act X ) 43.
 
 PRESUMPTION AS TO FIXITY. 1 77 
 
 As to the amount of proof necessary, it is always a ques- Amount of 
 
 i- r ii'iif ,1 • . f 1 proof neces- 
 
 tion of fact to be decided from trie circumstances of eacri s^^y for a 
 case. The reported decisions' on the point, laying down presumption 
 
 • r 1 f J 1- • u °^ uniform- 
 
 rules and giving directions for the mode of dealing with jty. 
 
 the evidence, are not apparently consistent with one an- 
 other. Each case depends upon its own facts and cir- 
 cumstances, and it is extremely difficult to lay down 
 rules of law applicable to all cases. It has been held 
 that there should be no room for an inference of payment 
 at fixed rent for twenty successive years,'^ and that strict 
 proof is necessary. Again it has been held that such 
 proof is not necessary,' provided the proof of payment 
 extends over twenty years. Payment* of the same 
 amount every year need not be proved, but the rate' 
 must be the same. Small variations^ arising from 
 calculation may be dispensed W\i\\ as immaterial and 
 
 ' Ram V. Chunder, 2 W. R. ( A61 X ) 74; Jugmohan 7;. Poornoo, 3 
 W.R. ( Aa X ) 133 ; Hem v. Poorno, 3 W. R. ( Aft X ) 162 ; Raj v. Assa, 
 3W. R. ( Aa X ) 170 ; Nyamut v. Gobind, 4 W.R. ( Aa X ) 25 ; Dhun v. 
 Chunder, 4 W. R. ( Aa X ) 43 ; Kazee v. Nubo, 5 W. R. ( Aa X ) 53 ; 
 Gooroo i;. Sheikh, 5 W R. ( Aa X ) 86; Sham v. Muddun, 6 W.R. 
 ( Aa X ) 37 ; Rakhai v. Kinoo, 7 W.R. 242 ; Poolin v. Neemaye, 7 W.R. 
 472; Soodistee i;. Nuthoo, 8 W. R. 487 ; Chamarnee v. Ayenoolla, 9 
 W. R 45 ; Pearee ■!». Radha, 10 W.R. 427; Huruck 7'. Toolsee, 11 W.R. 
 84; Miterjeet v. Toondun, 12 W. R. 14, sc, 3 B. L. R. App. 88; Kunda 
 V. Gunesh, 15 W. R. 193; Nilmonee v. Anunt, 15 W.R. 393. 
 
 ^ Rajnarain v. Mrs. Olivia, i W. R. 45 ; Mahmooda ■z;. Hareedhun, 
 S W. R. ( Aa X ) 12 ; Ram v. Chand, 5 W. R. ( Aa X ) 84 ; Prem v. 
 Shaikh, 6 W. R ( Aa X ) 90 ; Sham v. Boistab, 7 W. R. 407. 
 
 ' Rashmonee'w. Hurronath, i W.R. 280 ; Radhanath v. Binode, 3 W. 
 R. ( Aa X ) 157 ; Surnomoyi v. Baboo, 9 W. R. 207 ; Bungo v. Ram, 
 to W. R. 256 ; Rashbehary v. Ram, 22 W. R. 487 ; Radha v. Aghore, 
 25 W. R. 384. 
 
 ' Tarinee v. Kalee, 3 W. R. (Aa X) 123 
 
 ^ Kattyani v. Soonderee, 2 W. R. ( Aa X) 60; Moran v. Anund, 6 
 W.R. ( Aa X ) 35 ; Munsoor v. Bunoo, 7 W.R. 282 ; Catherine v. Huro, 
 8 W. R. 284 ; Sham v. Dwarka, 19 W, R. 100. 
 
 " Ram V. Chunder, 2 W. R. ( Aa X ) 74 ; Gopal v. Muthoor, 3 W. R. 
 ( Aa X ) 132 ; Anund v. Hills, 4 W. R, ( Aa X ) 33 ; Elahee v, Roopun, 
 7 W. R. 284 ; Ahmed v. Golam, 1 1 W. R. 432. 
 W
 
 17^ PERMANENT TENURES. 
 
 unexplained. Evidence also may be given of fraudulent 
 conduct^ on the part of land-lords, as an element 
 decreasing the amount of burden on the tenant. If 
 during this period of twenty years, the tenant was out 
 of possession for a short time, on account of illegal evic- 
 tion by the landlord, and did not, therefore, pay rent, such 
 period will not be taken as a break. - 
 The pre- The presumption from twenty years' uniform payment 
 
 sumption jg rebuttable. It may be rebutted by the tenant's own 
 
 may be re- _ •' , ■' 
 
 butted. evidence shewing creation of the tenure or the beginning 
 
 of the lease at any time subsequent to the Permanent 
 Settlement. Proof of material variation of rent at any 
 period before the twenty years will also have the same 
 effect. A decree, in a suit instituted aftei the passing 
 of Act X of 1859, declaring the tenure liable to enhance- 
 ment, is also sufficient to rebut the presumption.'' But 
 a decree passed in a suit instituted before the Act came 
 into force, declaring liability to enhancement, has not 
 the same effect.^ 
 Effe(^ of par- The partition of a tenure and the consequent appor- 
 
 tition of a tionment of rent with the consent andi'approval of the 
 
 tenure. , ' ' 
 
 landlord do not amount in the eye of law to a variation 
 of rent." This is only the distribution of the same 
 rent on different parcels of land which were originally 
 considered as one single parcel. Neither would the 
 abatement of rent on account of loss of land by diluvion 
 or dispossession by title paramount, or acquisition of 
 
 ' Gyaram v. Gooroo, 2 W. R. ( Aft X ) 59. 
 
 ' Luteefunnissa v. Poolin, W.R., Sp. Vol., 91. See also Hurronath v. 
 Chittramoney, 3 W.R. ( Aft X ) 122, and Radha v. Aghore, 25 W.R. 384. 
 
 ' Rakhal v. Sheikh, 2 W. R. ( Aa X ) 69 ; Lauder v. Benode, 6 W. R. 
 (Aft X) 37; Woodoy i» Tarinee, 11 W. R. 49'). See also NufTcr v. 
 Poulson, 19 W. R. 17s ; Hurro v. Gobind, 23 W. R. 352. 
 
 « Gobind V. Huro, 5 W. R. ( Art X ) 10 ; Kalleet». Ruttun, 11 W.R. 
 571. See also Doorpa v. Doya, 20 W. R. 243. 
 
 * Sukhomoni v. Gunga, W.R., Sp. Vol., ( Art X ) 52; Hills v. Besha- 
 ruth, I W. R 10. See also Kenaram v. Ramcoomer, 2 W. R. ( Aft X) 
 17 ; Hills V. Hurolal, 3 W. R. ( Aft X ) 135 ; Kazee v. Nubo, 5 W. R. 
 ( AA X ) S3 i Soodha v. Ramguttcc, 20 W. R. 419.
 
 VARIATION OF RENT. 179 
 
 land for public purposes, be considered as variation of 
 rent, disentitling the tenant from getting the benefit 
 of the statutory provision in his favour. The law, as 
 contained in the Rent Act of 1859, was not distinct in 
 its terms, but Courts of law gave effect to the true in- 
 tention of the legislature, and the Bengal Tenancy Act 
 has aiven effect to the case-laws by inserting the words 
 "rate of rent"^ in section 50. According to these 
 cases crystallised into the rule of law laid down in the 
 Bengal Tenancy Act, uniformity in the rate of rent ac- 
 cording to the local unit of the measure of land is enough 
 to give rise to the presumption of permanency. But the increase of 
 effect of such a provision in the law necessarily entitled JreLe"o'r" 
 the landlord to raise the rent on account of increase area, 
 in area. Such increase of rent without* an increase in 
 the rate of rent does not prevent the operation of the 
 statutory provision.^ The increase may be due to alluvial 
 accretion, to encroachment by the tenant on the land- 
 lord's adjoining land or the land belonging to a stranger, 
 the tenant dealing with it as a part of the holding, im- 
 perfection in the original measurement and causes of a 
 similar nature. In such cases the Bengal Tenancy Act 
 expressly provides for an increase of rent for an in- 
 
 crease in area.* 
 
 We have already seen that the existence of a grant, Pdicyof law 
 
 explicit or sufficiently intelligible in its terms, regulates in contraas 
 
 " J ^ 1 • J °' lease, 
 
 in most cases the legal relations between the parties, and 
 
 the law seldom interferes except where its general policy 
 or the weakness of one of the parties renders its inter- 
 ference absolutely necessary. I need not repeat what 
 the policy of the authors of the Permanent Settlement of 
 Bengal was, and how that policy was abandoned in 1812,® 
 
 • Aa VIII of 1885, Sec 50, cl. I. 
 
 "^ Gopal V. Nobbo, 5 W. R, ( Aa X ) 83 ; Moran v. Aiiund, 6 W. R. 
 
 I Aa X ) 35. 
 
 ^ Reazoonissa v. Tookun, 10 W.R 246 ; Radha v. Kyamutoollah, 21 
 W. R. 401. 
 
 * Aa VIII of 1885, Sec 52. ' Ante. p. 88.
 
 l8o PERMANENT TENURES. 
 
 the proprietors being given free permission to enter into 
 contracts of lease on any terms best conducive to their 
 interest. Ignorance, poverty, fear of oppression, absence 
 of independent advice — when these or some of these 
 circumstances are always expected to exist in a class of 
 men, such as the poor peasantry of Bengal in their deal- 
 ings with their landlords, the law has laid down definite 
 rules declaring certain conditions in leases as uncon- 
 scionable and void, even without evidence of weakness 
 in the one party or exercise of undue influence on the 
 other. 1 But those who take permanent leases belong 
 generally to a class not very inferior in intelligence, 
 local influence and power to those who grant such 
 leases. The Bengal Tenancy Act has, therefore, pro- 
 vided — " Nothing in this Act shall be deemed to prevent 
 a proprietor or a holder of a permanent tenure in a per 
 manently settled area from granting a permanent 
 mukurrari lease on any terms agreed on between him 
 and his tenant."- We are not, however, to understand 
 from this that any terms or conditions whatsoever will 
 be binding between the parties. The general policy of 
 law, and not merely the policy of the Anglo-Indian 
 legislature, has occasionally to interfere. 
 Ejeament Non-liability to be ejected for non-payment of 
 
 for non- arrears of rent, notwithstanding express words in a con- 
 
 payment of "" 
 
 rent. tract to the effect, is an incident of permanent tenures. 
 
 The law, unaffected by the provisions of the Bengal 
 
 Tenancy Act, lays down that a condition"' for ejectment 
 
 for non-payment of rent is enforceable, though the 
 
 ejectment is capable of being enforced by the land-lord, 
 
 only if the tenant does not pay arrears and costs of suit 
 
 within fifteen days of the decree.* Incases wheie there 
 
 ' Vide Aft VIII of 1885, Sec. 178 ; Fry v. Lane, 40 Ch. Div. 322. 
 
 • Aft VIII of 188s, Sec. 179. 
 
 • Lauder i;. Benodelal, 6 W. R. (Aft X ), 37 ; Kadir i). Mohadebee, 
 /did, p. 48; Uuksh v. Ranfitunoo, Ibid., p. 64. 
 
 • Aft X of 1859, Sec. 78 ; Aft VIII ( B.C. ) of i86y, Sec. 52. See also
 
 EJECTMENT. 
 
 i8i 
 
 for breach of 
 covenant. 
 
 is an absence: of legislative enactment, courts have always 
 exercised an equitable jurisdiction, in not enforcing such 
 a penal condition as to ejectment.^ The Bengal Ten- 
 ancy Act has expressly laid down that " where a tenant 
 is a permanent tenure-holder, he shall not be liable to 
 ejectment for arrears of rent, but his tenure shall be 
 liable to sale in execution of a decree for the rent 
 thereof."^ This rule applies to all cases whether there 
 is a written lease or not. 
 
 Conditions for ejectment for breach of any covenant Ejeament 
 in a lease has always been looked with disfavour, and 
 opportunity has always been given for remedying 
 the breach.'^ If the breach of a covenant is of such 
 a nature that it is easily susceptible of remedy, the 
 penalty of forfeiture is not enforced.* The Bengal 
 Tenancy Act has laid down special rules restricting, as 
 much as possible, the right of the landlord to eject on 
 the breach of a covenant.^ No ejectment can take place 
 except in execution of a decree, and no decree for eject- 
 ment can be passed unless the " landlord has served, in 
 the prescribed manner, a notice on the tenant specify- 
 ing the particular misuse or breach complained of, and, 
 where the misuse or breach is capable of remedy, re- 
 quiring the tenant to remedy the same, and, in any case, 
 to pay reasonable compensation for the misuse or 
 
 Aa IV of 1882, Sec. 1 14 ; Jan AH v. Nittyenund, 10 W, R. ( F. B, ) 12 ; 
 Kumla V. Ram, 11 W. R. 201 ; Saroda v. Nobin, Marsh Rep. 417 ; 
 Gujadhur v. Naik, I. L. R. 8 Cal. 528. See also Sreeshteedhur v. Doorga, 
 17 W. R. 462 ; Indur v. Campbell, I. L. R. 7 Cal. 474 ; Savi v. Mohesh, 
 W. R., 1864, ( Aa X ) 29. 
 
 ' Mahommed v. Prayag, I. L. R. 7 Cal, 566; Dull v. Meher, 12 B. L. 
 R. 439, sc, I. L. R. 12 Cal. 439 ; Mothoora v. Ram, 4 C L. R. 469. 
 
 - Aa VIII of 1885, Sec. 65. See also Aa VIII of 1885, Sec. 10, 
 
 =■ Aa VIII of 1885, Sec. 155, cl. ( 6 ); Mumtaz v. Grlsh, 22 W. R. 
 376 ; Mothoora v. Ram, 4 C. L. R. 469 ; Dull v. Meher, 12 B.L. R. 439 ; 
 Mahommed v. Peryag, I. L. R. 7 Cal. 566. See also Brojendro v. 
 Bungo, 12 C. L. R. 389 ; Golabahe v. Kootoob, I. L. R. 4. Cal. 527. 
 
 * Aa VIII of 1885, Sec. IS5, cl. 4. 
 
 ^ Aa VIII of 1885, Sec. 89.
 
 l82 PERMANENT TENURES. 
 
 breach, and the tenant has failed to comply within a 
 reasonable time with that request."^ The court passing 
 the decree is required to make similar provisions in the 
 decree and to fix a time for the performance and extend 
 the time at its discretion. Sections iii and ii2 of the 
 Transfer of Property Act also lay down strict rules 
 guarding as much as possible the interest of tenants, and 
 I think, these rules apply to permanent tenures. The 
 period of limitation for a suit based upon a breach of 
 condition has been limited by the Bengal Tenancy Act 
 * to one year from the date of the breach.* 
 
 Compensa- ^^ cases where the remedy lies in a grant of compensa- 
 
 tion for tion, what is the measure of compensation or damasres ? 
 
 breach of . . . . . ^ • . • 
 
 contraft. This IS a question very difficult to answer^ specially in a 
 
 country where the judge has to perform the functions of 
 the jury as well. Each case has also its own peculiarities, 
 specially arising from the nature of the tenancy. If there 
 is a condition in a lease that the tenant shall not excavate 
 a tank without the written sanction of the landlord, the 
 grant being periiiinent, the measure of damages cannot 
 be the cost of restoring the ground to its former condition. 
 It would be giving the landlord too much, if he be paid 
 the whole cost of restoring the state of things which ex- 
 isted bi,'for>.' th(.' wrong was done. The true measure of 
 damages in such a case seems to be the extent to which 
 the value of the landlord's interests in the land has dimi- 
 nished.* It may happen that the taking away of a part of 
 the soil has improved the land, instead of diminishing its 
 value. In such a case the damages should be nominal, 
 merely for the legal injury, the landlord not having sus- 
 tained any actual loss. Where the lease Is permanent, 
 the landlord's interest lies in the security for his rent, and 
 if the security is not impaired, he loses little by the breach 
 of the covenant. In cases, however, in which the lease 
 
 ' AA VIII of 18S5, Sec. 155. ' Aa VIII of 1885. Sch III. Art.l. 
 ' Withan V. Kershaw, ( 1886) i^ Q.B. Div. 613. 
 
 i
 
 RESTRAINING COVENANTS. 1 83 
 
 is not permanent and there is a reversion to the land- 
 lord, the matter requires to be considered in a different 
 light. 
 
 The law also looks with disfavour upon a covenant Covenant 
 
 I L • L- i-L i. l' • I 4. f r I.' restrifting 
 
 in a lease restricting the tenants right of alienation, alienation. 
 
 Section ii of the Transfer of Property Act, which repro- 
 duces the English law on the subject, seems to indicate 
 that such a covenant in a lease is valid as between the 
 landlord and the tenant, notwithstanding that the tenure 
 may be permanent. But Section ii of the Bengal 
 Tenancy Act, on the other hand, lays down without any 
 reservation, that every permanent tenure is capable of 
 being transferred and bequeathed in the same manner 
 and to the same extent as any other immovable property. 
 The section would seem to lay down that a covenant re- 
 strictinsf alienation as inconsistent with the chief condi- 
 tion in the grant, and would reject it as incapable of 
 being enforced. But whatever the true intention of the 
 legislature may be, it is now settled law that, notwith- 
 standing a condition in a lease taking away the power of 
 the lessee to alienate his right, and making forfeiture a 
 penalty, the condition is not enforceable against a pur- 
 chaser, unless there is an express right of re entry in case 
 of a breach of a covenant against alienation.' Such 
 a condition in a lease is also restricted in its opera- 
 tion, and applies only to voluntary alienations, and not 
 to sales in execution of decrees or assignments by opera- 
 tion of law as in the case of bankruptcy. The right of 
 a purchaser in execution cannot be defeated by such a 
 condition in a lease.* 
 
 Instances have occurred of cases of permanent Reduaion of 
 muhirrari tenures being allowed reduction of rent, '^^"^• 
 
 ' Afl VIII of 1885, Sec. II i Nilinadhab 'y. Narattam, I. L. R. 17 
 Cal. 826 ; Golak v. Mathura, I. L. R. 20 Cal. 273 ; Tamaya v. Timapd, 
 I. L. R. 7 Bom. 262 ; Subbaraya v. Krishna, I. L. R. 6 Mad. 159; 
 Narayan v. AH, I. L. R. 18 Bom. 603. 
 
 2 1. L. R. 17 Cal. 826.
 
 184 PERMANENT TENURES. 
 
 notwithstanding that the rent has been fixed permanently. 
 But no deduction is allowed if there is an express stipula- 
 tion to pay at the particular rate in spite of diluvion or 
 decrease of land on any other account. In Assarudi \. 
 Sorosibala Debi,^ Sir Barnes Peacock, C. J., held that 
 " according to the ordinary rules of law, if a taluqdar 
 agrees to pay a certain amount of rent, the tenant of it is 
 exempt from the payment of the whole rent, if the whole 
 of the land be washed away, or of a portion of the rent, 
 if a portion only be washed away." Even a putnidar has 
 been held to be entitled to abatement. - 
 
 Interpretation -pj^^ interpretation of instruments of lease is a matter 
 
 of deeds. *^ . 
 
 of considerable importance in this country, where 
 
 the art of conveyancing is almost unknown. Docu- 
 ments in the vernacular languages are generally 
 drawn, even at the present day, by men who have little 
 legal training. The intention of the parties is not un- 
 frequently left in the dark, and left to be gathered from 
 custom or usage, as difficult to ascertain as any other fact 
 depending for proof upon oral evidence of a highly 
 conflicting character. These documents are apparently 
 simple, but their very simplicity is sometimes a source of 
 litigation and a puzzle to lawyers and judges. The 
 difficulty of interpretation is not unfrequently enhanced 
 on account of our ignorance of the language, the 
 manners, customs, habits and usages of the people. Help 
 from legal literature or lexicons is rarely available. 
 There is thus a conflict of authorities as to the in- 
 terpretation of deeds. It has, however, now been set- 
 tled that the words — " with your sons and grandsons in 
 succession," ^^ piitra poiitradi krnmc^^ /.<'. from genera- 
 tion to generation, or " generations born of your womb 
 successively enjoy the same," and words of similar im- 
 
 ----- ---- — - 
 
 ' Marsh Rep. 558. 
 
 ■ Moulvie V. Mussumat, 8 W.R. 504 ; Ram Narayan v. Jayakrishna 
 B.L.R., Sup. Vol. 70; Brajanath v. Hirnlal, i H. I.. R. ( A.C.)87.
 
 INTERPRETATION OF DEEDS. 1 85 
 
 port convey a permanent and transferable right. They 
 convey an absolute right subject to payment of rent. 
 If there are no words fixing the rent in perpetuity, the 
 tenure becomes jnaurusi, but not mukurrari. It is not, 
 however, essential that words indicating heritable in- 
 terest or fixing the rent in perpetuity should always be in, 
 in order to create maurusi mukurrari right. The intention 
 of the parties may be drawn from surrounding circum- 
 stances and from local custom or usage. Not unfre- 
 quently, the name given to the tenure created connotes 
 its incidents. A putni taluq, as we have seen, imports 
 a permanent hereditary tenure. The word taluq 
 raises Uie presumption of a tenure being perma- 
 nent. The howlas and nimhowlas of Bakhergunj are 
 instances of names of permanent tenures. The words 
 mukurrari maurusi or mukurrari istemrari indicate 
 permanent tenures at fixed rent. But their Lord- 
 ships of the Privy Council have said that the words 
 " istemrari and mukurrari." do not " of themselves, 
 denote that the estate granted is an estate of inheritance. 
 Not that such an estate cannot be so granted unless, in 
 addition to the above words, such expressions as 
 " bafarzandan" or * naslan bad naslan' or similar terms 
 are used."^ The use of the word mukurrari, without 
 the word maurusi, has been interpreted as creating 
 tenures, in some instances, for the life of the grantee 
 only, in others of the grantee and his heirs in succes- 
 sion. The intention is drawn, not from the use of any 
 particular words, but from surrounding circumstances. 
 The intention has occasionally to be gathered from the 
 context of the deed, as in leases of jungle lands the 
 rent of which increases from time to time, until it 
 reaches a fixed maximum. 
 
 ' Tulshi Pershad 2J. Ramnarain, I. L. R. 12 Cal. 117, sc, L. R. 12 
 I. A. 205. See Ameeroonissa v. Hetnarain, S. D. A., 1853, p. 648. 
 X
 
 iS6 
 
 PERMANENT TENURES. 
 
 The law of 
 England 
 occasionally 
 applied. 
 
 Hereditary 
 tenures. 
 
 In the absence of any written instrument of lease or 
 express contract, the incidents of a tenancy are those laid 
 down in the Regulations and the several Rent Acts, sup- 
 plemented by custom and usage. The law of England, 
 when it accords with the rules of justice and equity, has 
 occasionally been applied to cases where the statute 
 law in India is silent, and where there is no proof of 
 any custom or usage bearing on the question at issue. 
 
 Maurusi tenures, which the Bengal Tenancy Act has 
 called permanent, are, by the definition itself, " herit- 
 able and which are not held for any limited time."* 
 They have most of the incidents of maurusi inukiirrari 
 leases, but the rent is enhanceable. Act X of 1859 made 
 no provision as regards the enhancement of rent of 
 these tenures, and courts of law had, accordingly, to rely 
 upon custom. In dealing with dependent taluqs,'^ I have 
 stated the grounds upon which enhancement of rent can 
 be claimed by the proprietor of an estate, and the same 
 rules and principles are applicable, whether the tenure is 
 held directly under a proprietor of a revenue-paying or 
 revenue-free estate, or whether it is a subordinate tenure. 
 Instances of tenures purely maurusi are, however, ex- 
 tremely rare. The fact seems to be that where no 
 contracts exist, there have been constant disputes 
 between the holders of such tenures and the superior 
 landlords as to liability to enhancement, and in a large 
 number of cases the tenants have escaped. The rent of 
 dependent taluqs in some of the districts, especially Raj- 
 shahi and Mymensing, and of under-tenures in some 
 others, has been enhanced, but the enhancement 
 has been so high tliat new cases of enhancement 
 seldom arise. These heritable tenures were not always 
 transferable.^ But the Bengal Tenancy Act has, as we 
 have seen, made all permanent tenures capable of being 
 transferred or bequeathed in the same manner and to 
 
 ' Aa Vlil of 1885, Sec. 3, cl. 8. • Ante p. 166. 
 
 ' Lilanand v. Munoninjun, 13 B. L. R. 124.
 
 HEREDITARY TENURES. 1 87 
 
 the same extent as other immovable properties.^ In 
 districts where that Act is not in force, and when the 
 lease is not for agricultural purposes^ but is: a lease for 
 the collection of rent, as all intermediate tenancies are, 
 the Transfer of Property Act would be applicable, and 
 section io8, clause (j) of that Act provides — " The lessee 
 may transfer absolutely or by way of mortgage or sub- 
 lease the whole or any part of his interest in the property, 
 and any transferee of such interest or part may again 
 transfer it. The lessee shall not, by reason only of 
 such transfer, cease to be subject to any of the liabilities 
 attaching to the lease." The words I have quoted from 
 the Transfer of Property Act are prefaced in the section 
 itself by the words — "in the absence of a contract or 
 local usage to the contrary."- So that the burden 
 of proving non-transferribility is on those who assert it. 
 The common law of the country, if I may use that ex- 
 pression, seems to be in favour of heritability and trans- 
 ferribility of all classes of tenures, unless there is express 
 contract legally enforceable or positive law prohibiting 
 succession and transfer. The opposite view has some- 
 times been taken, though there is no foundation for it. 
 I think, however, the Transfer of Property Act, though 
 not applicable in Bengal to tenancies for agricultural 
 purposes, should be taken to express the rule of law ap- 
 plicable to all cases where there is no special or local law. 
 The reported cases on the question of the onus of proof 
 are not, however, quite in harmony-' with one another. 
 Intermediate tenures cannot be said to be leases for agri- 
 cultural purposes within the meaning of section 1 17 of the 
 Transfer of Property Act, as the purpose of the creation of 
 such tenures cannot, from the very nature of the thing, 
 be for cultivation of land by the lessees. 
 
 ' Aa VIII of 188s, Sec. II. 2 Aa IV of 1882, Sec. 108. 
 
 * Doya 7;. Anund, I.L.R. 14 Cal. 382; Kripa v. Durga, I.L.R. 
 IS Cal. 89; Appa v. Subbanna, I.L.R. 13 Mad. 60.
 
 l88 PERMANENT TENURES. 
 
 Tenures at Mukurrari, also known as kaimi, tenures are always 
 
 onW '^"* ^^^ ^^^ Yweis of the grantees and are dependent upon 
 
 written leases. Not that such tenures could not be 
 created by oral demise, but the universal practice was 
 to have written instruments of lease, though registra- 
 tion was not compulsory. The Registration Acts, 
 passed smce 1864, practically did away with oral agree- 
 ments of lease for any term exceeding one year, and the 
 Transfer of Property Act requires that they should be 
 by registered instruments.* The question in all cases 
 of grants at fixed rent is, therefore, a question of the in- 
 terpretation of instruments. Wherever the Transfer of 
 Property Act applies, the law attaches certain incidents 
 when the contract is silent, and when there is no local 
 custom or usage preventing the operation of the law. 
 Generally speaking, these tenures are alienable, and not 
 terminable without the consent of the parties. Leases 
 for a term of years at fixed rent are temporary, and 1 
 propose to deal with them separately. 
 Registration Registration in the office of the landlord is a peculiar 
 
 liability attaching to all intermediate transferable tenures. 
 By whatever names they go, taluqs , howlas, jotes, 
 Mukurraris or niaurusies, if they are transferable by law, 
 custom or local usage, every transfer or succession 
 requires to be registered in the landlord's office, the 
 penalty for non-compliance being in some cases very 
 severe.* The leasehold interest belonging to A may 
 be sold in execution of a decree against B, if A claims 
 by assignment from B, without giving legal notice of the 
 assignment to the rent-receiver of B. This peculiarity 
 in the Indian law of landlord and tenant was considered 
 in the case of Sham Chand Koondoo and others v. Brojo 
 NathPal Chowdhury and others'-^ by a Full Bench of the 
 
 in landlord's 
 office 
 
 ' Aa. IV of 1882, Sec. 107. 
 
 ' Aa X of 1859, Sec 27: Aa VIII (B.C.) of 1869, Sec. 26; Aa VIII 
 of 1885, Sees. 12 to 16. 
 
 ' ai. VV. R. 94, sc, 13. B. L K. 484.
 
 REGISTRATION. iSq 
 
 Calcutta High Court. In that case the learned judges held 
 that the law, as understood before the Act of 1859 came 
 into force, did not, in order to protect an assignee and 
 under-tenants under him by service of notice of suit for 
 arrears of rent, make the registration of the name of the 
 assignee of a saleable tenure compulsory. Registration 
 was certainly known and was always insisted upon, but no 
 penalty was attached to non-registration. Regulation VII 
 of i799,known as \\\^ Haptam in Bengal, gave proprietors 
 the right to bring tenures to sale for arrears of rent. The 
 Regulation further provided, as security to the zemin- 
 dar, that dependent taluqdars should register in his 
 sherista or office all transfers, as well as successions, of 
 taluqs or portions of them.* But, in the words of Sir 
 Richard Couch, C.J., in the Full Bench case, 'the Regul- 
 ation does not provide, as Act X does in the proviso 
 to section 106, that no transfer which is required to be 
 registered shall be recognized, unless it has been so 
 registered, or unless sufficient cause for non-registration 
 be shown to the satisfaction of the Collector. More 
 stringent provisions in favour of zemindars are inserted 
 in Act X of 1 859 than in the Regulation. It appears to me, 
 taking sections 105 and 106 together with the proviso, 
 that it was intended that the zemindar should be at 
 liberty to treat, as the holder of the tenure and the 
 person whom he might sue for the arrears of rent, the 
 person who is registered in his books as the owner, unless 
 any one could show that there had been a transfer 
 and sufficient cause for non registration. In such a 
 case, a zemindar might find that he had been suing 
 the wrong person. Taking these sections together, 
 I think that the zemindar, having obtained a decree for 
 arrears of rent, is entitled to sell the tenure ; and that 
 the person who has obtained a transfer which he has 
 not registered, and cannot show a sufficient cause for 
 
 ' Reg. VII. of 1799, Sec. 15, cl. 8.
 
 19° PERMANENT TENURES. 
 
 not registering it, is bound by the sale, and cannot set 
 up a title which he has acquired by a previous sale.'^^ 
 This liability of intermediate transferable tenures exists 
 not only on voluntary sales but on sales in execution of 
 civil-court decrees, and even in the case of an assignee 
 of an insolvent taking under a vesting order. ^ 
 Effeaof non- This provision about registration in the office of the 
 
 registration. zemindar or superior landlord, contained in section 27 of 
 Act X of 1859 ^"d reproduced in section 26 of Act VIII 
 (B.C.) of 1869, entailed a higher penalty for non-regis- 
 tration than what would be the result upon the applica- 
 tion of the law of hypothecation to rent. As we now 
 understand the law and the procedure for foreclosure and 
 sale of hypothecated immovable property, no foreclosure- 
 proceeding, whether under Regulation XVII of 1806 
 or the Transfer of Property Act, nor a decree for sale 
 under that Act, has any effect on a person having an in- 
 terest in the property but not made a party to the 
 proceeding or suit, if his interest in such property arose 
 before the institution of the proceeding or the suit. 
 The right of puisne encumbrancers or assignees of mort- 
 gaged premises is not in the least affected, if they have 
 no legal notice of the proceeding or suit on the mort- 
 gage." But the registration sections of the Rent Acts 
 of 1859 and 1869 would affect, for want of registration, 
 mortgagees of tenures as well as subordinate tenure- 
 holders in a suit against the registered tenant only. The 
 personal liability of the registered tenant for rent con- 
 tinue so long as an assignee from him did not get his 
 
 ' Sham Chand v. Brojo, 21 W.R., 94 ; Lukhinarin v. Khetter, 13 
 B. L. R. 146: Surendro v. Tincowri, I. L. R 20 Cal. 247. See also 
 Rashbehary v. Peary, I. I.. R. 4 Cal. 346. 
 
 • Chunder v. Kishen, I. L. R. 9 Cal. 855. 
 
 •' Syud Rmam t;. Rajcoomar, 23 W. R. 187; Nanack v. Teluckdye, 
 I. L. R. 5 Cal. 265 ; Dirgopal v. Bolakee, I. L. R. 5 Cal. 269; Kokil v. 
 Dull, 5 C L. R. 243; Kasumunnissa v. Nilratna, I. L. R. 8 Cal. 79; 
 Jugiil V. Kartic, I. L. R. 21 Cal. 116.
 
 REGISTRATION, I9I 
 
 name registered in the office of the superior landlord.^ 
 As regards the assignee himself, he had no legal status, 
 though it was optional with the landlord to accept him 
 as a tenant, and it was even held that he could not sue 
 for possession after illegal eviction by the landlord. ^ 
 Non-registration of name did not, however, make the 
 assignee a trespasser — the assignee at once becomes 
 a tenant.^ Fraud vitiates the most solemn transaction. 
 A fraudulent decree or fraudulent eviction ought always 
 to be a good cause of action against the perpetrators of 
 the fraud. It is impossible to conceive that any humane 
 legislature would impose, for non-registration, the penalty 
 of forfeiture, or the severer one of negativing the exis- 
 tence of the relationship of landlord and tenant. 
 
 The hardship of this law was early felt by the judges, Suits for Reg- 
 and every indulgence was shown to the tenants if they '^''■^^'°"- 
 had made the slightest attempt to have their names 
 registered in the zemindar's sherista. Recognition by 
 receipt of rent, though the receipt was granted in the 
 name of the old tenant, knowledge of the superior 
 landlord of the assignment of the tenure under circum- 
 stances that would lead any honest man to recognize the 
 assignee, or a long course of dealings with the assignee, 
 used to be considered tantamount in law to registration. 
 On the other hand, the landlord had the option of ignor- 
 ing the old tenant and sue his assignee in possession. 
 He could ignore a registered benamdar and sue the real 
 tenant for rent. Suits for registration, on the refusal of the 
 landlord to register, have always been allowed, the tenant 
 being made to pay only the usual fee for registration. 
 
 On the death, however, of the registered tenant, a Death of the 
 suit for rent aerainst his legal heirs was considered in- registered 
 
 ° _, tenant. 
 
 sufficient in law to bind an assignee of the tenure. The 
 registration-law was not stretched in favour of the land- 
 
 ' KearnesT). Bhowanee, W. R., Sp. Vol., 168. 
 
 2 Mooktakeshee v. Pearee, 7 W. R. 158. 
 
 ' Nobeen v, Shib, 8 W. R. 96; Kristo i-. Raj. 1. L. R, i2Cal, 24.
 
 19? PERMANENT TENURES. 
 
 lord, so as to deprive a stranger of his right by pro- 
 ceedings in a suit against a person who was never in 
 possession and who had no connection with the property 
 at the time when the succession opened out. Registra- 
 tion of successions is now required by the law/ No suit 
 can lie against a dead man , the landlord must, therefore, 
 seek out the real tenant and sue him for rent. The same 
 principle should apply in cases of survivorship under the 
 Mitakshara law, though a suit against the karta, when 
 he is alive, binds the co-parceners.' 
 The Bengal Under the Bengal Tenancy Act, it is no longer the 
 
 Tenancy Aa ^^^y ^f jj^g transferee of an intermediate tenure to ask for 
 
 on Registra- . . ^ . 
 
 tion. registration of his name in the sherista of his superior 
 
 landlord, — it is now the duty of the registering officer, 
 when he registers the assurance conveying a tenure or 
 any interest in it to send notice to the landlord. Transfer 
 of a permanent tenure either by sale, gift or mortgage, 
 merely by word of mouth or delivery of possession, has 
 now been abolished. A registered instrument is the only 
 means by which a permanent tenure may be transferred.^ 
 A fee for registration in the office of the landlord is now 
 levied by the Registrar himself, and it is the duty of the 
 registering officer, after levying the fee, to send it to the 
 Collector with a notice of the transfer and the registra- 
 tion of the assurance, and it is then the duty of the 
 Collector to cause the fee to be paid to, and the notice to 
 be served upon the landlord. The fee is two per cent.* 
 on the annual rent, provided the total amount of fee shall 
 not exceed one hundred rupees ; and where no rent is pay- 
 able, the fee is two rupees only. The duty of the original 
 tenant and his assignee, which the former law imposed 
 upon them, has now devolved on Government officers. 
 
 ' Aa VIII of 1885, Sec. 15. 
 ' Jeslal V. Gunga, I. L. R. loCal. 996. 
 =• Aa VIII of 1885, Sec. 12, sub-sec. i. 
 * A a VIII of 1885, Sec. 12, sub-icc. 3.
 
 REGISTRATION. 193 
 
 and whether the superior holder receives the fee and the 
 notice or not, the liability of the previous tenant for 
 rent accruing subsequent to the date of the registration 
 ceases, and the landlord is bound to look to the new 
 tenant for the rent for such subsequent period. 
 
 On a sale in execution of a decree other than a decree Registration 
 
 , . , 1 f r I u • oil execution- 
 
 for arrears of rent, or on a decree for foreclosure being ^^j^^ 
 
 passed, the Court has to perform a similar duty, /.^.,to levy 
 the fee from the purchaser or mortgagee entitled to pos- 
 session, and transmit it with a notice through the Collect- 
 or.i But no fee is levied nor any notice sent to the 
 landlord, when the sale is brought about by the landlord 
 himself for arrears of rent, or when the landlord himself 
 is the purchaser. 
 
 Under the law, as it stood under the Rent Acts of Registration 
 1859 and 1869, the registration of successions was °^ succes- 
 necessary. but there was no penalty for non-registration, 
 A suit for arrears must be brought against the heir or 
 successor of the deceased tenant, whether registration 
 of his name was effected or not. The Bengal Tenancy 
 Act has imposed a penalty, taking away the right of 
 the heir to sue his under-tenants for rent, or get any 
 relief as against them until he pays to the Collector the 
 landlord's fee, and until the notice of such succession 
 is given to the landlord.'- But if the succession had opened 
 out before the Act came into force, registration of succes- 
 sion would be unnecessary.^ The provisions of the law 
 applicable to assignees and heirs apply to transfers of 
 or successions to shares in a permanent tenure. But 
 the landlord is not bound to accept a sharer as his tenant 
 with respect to that share. He becomes only one of the 
 joint tenants liable to be sued along with the others as 
 joint tenants.* 
 
 If due effect be given to these provisions of the j^^^^^^^^ 
 Bengal Tenancy Act, and the officers entrusted with the 
 
 1 Aa VIII of 1885, Sec. 13. ^ Aa VIII of i88s, Sec. 16. 
 
 ' Profullah v. Samiruddin, I, L. R. 22 Cai. 337. 
 * Aa VIII of 1885, Sec. 88.
 
 >94 PERMANENT TENURES. 
 
 task of causing notices to be served cause them to be 
 properly served, both the landlord and the tenant are 
 likely to derive considerable benefit. The Act, however, 
 is silent as to any but permanent tenures. As we 
 have seen, there are a good many tenures which are not 
 permanent. The law has also made no provision for 
 involuntary transfers, as on survivorship or insolvency. 
 It has made no provision for unregistered transfers 
 and successions that had taken place before the Act 
 came into force. What is the landlord to do in those 
 cases in which the law is silent ? What, also, is the posi- 
 tion of the tenant in occupation whom the landlord 
 does not recognize ? It would seem that in these cases 
 the landlord must find out the tenant. He ought 
 not to be allowed any relief by proceedings against 
 the registered tenants — a benefit which the law, as it 
 now stands, does not allow him. 
 Rights of One amongst a number of cosharers, forming joint 
 
 co-sharers. owners of a Superior tenure, has not the same rights as 
 a sole owner or all the co-owners jointly. He cannot 
 sue alone for the rent of his share except under peculiar 
 circumstances. He cannot sue for ejectment or en- 
 hancement of rent. He labours under various other 
 disabilities. The Bengal Tenancy Act, following numer- 
 ous rulings on the subject, expressly provides that he 
 cannot singly avail himself of the remedies which that 
 Act gives to land-owners in relation to their tenants.^ 
 It would, therefore, seem that a suit by a co-sharer 
 against a registered tenant ought not to bind any but 
 the person sued. The High Court at Calcutta held in 
 one case that a decree in such a suit has the same 
 effect on a sale in execution of the decree, as if the suit 
 had been brought against the tenant in occupation." But 
 the law of landlord and tenant has now been changed as 
 
 ' Aa VIII of 1885, Sec. 188; Bcni v. Jo;id, 1. L. R. 17 Cal. 390. 
 ' Jeo F^al V. Gunga Pcrshad, I. L. R. 10 Cal. 996.
 
 ENHANCEMENT OF RENT. 195 
 
 regards the greater part of the Lower Provinces of 
 
 Bengal, and it will not be necessary to consider how far 
 
 that judgment correctly expounded the law. 
 
 Intimately connected with the law about registration Special Pro- 
 r I t • 1 rr- f 1 • 1 II J cedure for 
 
 of the tenants name in the orhce or the superior landlord sales for 
 
 is the especial procedure of sales for arrears of rent and arrears, 
 avoidance of incumbrances. Shortly after the publication 
 of the Proclamation in 1793 announcing the Permanent 
 Settlement, the necessity of a law for the sales of 
 tenures for arrears of rent was felt by the legislature. 
 Punctual realization of revenue required punctual realiza- 
 tion of rent by those who had to pay the revenue. In 
 1799, Regulation VII was passed for sales of dependent 
 taluqs and other similar transferable tenures for reali- 
 zation of arrears of rent due in respect thereof. Act X 
 of 1859, which vested in the Collectors the power of 
 entertaining suits for rents and bringing tenures to sale, 
 laid down specific rules of procedure for sales of tenures 
 and under-tenures. The Bengal Act of 1869 made 
 no alteration in the procedure or the substantive law. 
 These Acts made two sets of provisions — one for sales at 
 the instance of the sole landlord or a body of landlords ! 
 
 jointly, and the other for sales at the instance of a ^ 
 
 co-sharer. 
 
 Process of execution could be issued against either Simultaneous 
 the person or the property of a judgment-debtor ; 
 but the process could not simultaneously be issued 
 against both the person and the property.^ Immov- 
 able property of the judgment-debtor other than 
 the tenure in arrear could not be sold, till movable 
 property was exhausted. The Bengal Tenancy Act has 
 made a material alteration in the procedure in this res- 
 pect, and a judgment-creditor is not now compelled to 
 sell the tenure in arrear before attempting to enforce the 
 decree against other immovable properties of the judg- ! 
 
 ' Aa VIII (B.C.) of 1869, Sec. 57
 
 196 PERMANENT TENURES. 
 
 ment-debtor. He is now entitled to realize the amount 
 of the decree by attachment and sale of any property of 
 the judgment-debtor, movable or immovable. If, however, 
 the contract between the parties contains a precise stip- 
 ulation to the effect that the tenure should be first sold, 
 and if after such sale there should remain a balance due to 
 the landlord, other properties of the tenure-holder might 
 be sold, the decree should contain a direction for the sale of 
 the tenure in arrear before the sale of the other properties 
 of the judgment-debtor. If there is no express contract 
 or no express direction in the decree, it is optional with 
 the decree-holder to proceed to execute the decree in 
 the mode best conducive to his interest. 
 Saleproclam- A proclamation of sale of a transferable tenure for 
 
 ^*'°"" its arrears should contain, amongst other particulars 
 
 provided for in the Code of Civil Procedure, the name 
 of the village, estate and perganah or other local 
 division in which the land comprised in the tenure 
 is situated, the yearly rent payable and the am- 
 ount recoverable under the decree.' Order for simul- 
 taneous attachment and proclamation may be made.' 
 The old Acts required five notices of sale to be stuck 
 up : (i) at the Court-house in which the sale is to take 
 place, (2) in the office of the Collector, (3) in the office 
 of the Judge of the district, (4) on some conspicuous place 
 on the land of the tenure, and (5) on some conspicuous 
 place in the town or village in or nearest to which the 
 land is situated.'^ The Bengal Tenancy Act, however, 
 has dispensed with the publication of the notice in the 
 office of the Collector and the District Judge, and the local 
 government, by Notification dated the 20th February 
 1886, has directed that the notice should be published 
 
 ' Aa VIII (B.C.) of 1865, Sees. 5 and 162; Aft VIII (B.C.) of 
 1869, Sec. 60. 
 
 • Aa X of 1859, Sec. los ; Aa VIII ( B.C.) of 1865, Sec 4; Aa VIII 
 ( B.C.) of 1869, Sec. 59. 
 
 • Aa VIII (B.C.) of 1865, Sec. 4: Aa VIII t B.C.) of 1869, Sec. 59.
 
 SALES. 197 
 
 in the mal kutchery or rent office of the estate and at 
 the local tiianah.^ The non publication of any of 
 these notices is a material irregularity, but is not 
 in itself sufficient to make the sale a nullity. 
 The proclamations have to be served in the custom- 
 ary mode by beat of drum. Under the procedure laid 
 down in the older Acts- the hanging up of the 
 notice in the court-house in which the decree is in 
 course of execution must take place not less than twenty 
 days before the day fixed for sale. The Bengal Tenancy 
 Act has, however, made an alteration in the period, by 
 enacting that no sale shall take place until after the 
 expiration of at least thirty days calculated from the 
 date on which the copy of the proclamation has been 
 fixed up on the land comprised in the tenure or holding 
 ordered to be sold.'^ Under the Code of Civil Proced- 
 ure, the period is at least thirty days from the date on 
 which the copy of the proclamation has been fixed up 
 in the court-house of the judge ordering the sale/ and 
 the Code also requires that the copy of the proclamation 
 should be fixed up in the court-house after the service 
 of the proclamation on the land ordered to be sold. 
 Thus you see the alteration in the period made by the 
 Bengal Tenancy Act has created an anomaly. It agrees 
 in the number of days with that prescribed in the Civil 
 Procedure Code for ordinary sales in execution, but 
 materially differs in the starting point. The infringe- 
 ment of this rule as to the time of the publication 
 of the notice is only a material irregularity. The 
 reported cases, however, are not quite in unison. But 
 the Calcutta High Court has been of opinion that this 
 is merely an irregularity ; and the judgment of the 
 
 ' Aa VIII of 1885, Sec. 163, cl. 3. Calcutta Gaaette, March 3, 1886, 
 Part, Ip. 142. 
 
 ^ Aa VIII ( B.C.) of 1865, Sec. 4 ; Aa VIII ( B.C.) of 1869, Sec. 59. 
 » Aa VIII of 1885, Sec. 163, cl. (4). 
 * Aa XIV of 1882, Sec. 290.
 
 iqS permanent tenures. 
 
 Privy Council in Govindalal Rai v. Raynja^iam Misser'^ 
 
 seems to have overruled all the cases which took a 
 
 contrary view. 
 
 Effea of sales Xhe effect of a sale for arrears at the instance 
 
 for arrears . 
 
 of the sole landlord or a body of landlords jointly, 
 
 the sale taking place under the procedure stated above, 
 is to set the tenure free of all encumbrances and 
 under-tenures which might have been created by any 
 act of the defaulter, unless the right of creating such 
 encumbrances was expressly vested in the holder by 
 the terms of the grant, or unless expressly assented 
 to by any subsequent written authority of the superior 
 landlord.^ The power to avoid encumbrances and 
 under-tenures created by the defaulter, is, as we have 
 already seen, a necessary right for the security of the 
 rent for which the tenure is hypothecated. Under the 
 law, as it stands in districts where the Bengal Tenancy 
 Act is not in force, the right to avoid encumbrances may 
 be exercised at any time within the period of twelve 
 years from the date of the confirmation of the sale. 
 There are certain interests which are, however, pro- 
 tected, such as the interest of khodkast raiyats and 
 occupancy tenants. The sale of a tenure for arrears 
 is, however, not necessarily a sale under the provisions 
 of the Rent Act. The decree holder, even if he is the 
 sole rent realiser, may proceed to attach and advertise 
 the tenure in arrear under the Code of Civil Procedure, 
 as if he wants to execute a simple money-decree. There 
 is nothing to prevent him from doing so. Their Lord- 
 ships of the Judicial Committee held in the case of 
 Doolar Chand Shahoo v. Lai la Chahccl Chand'^ that it 
 is always a question of intention, and the intention is to 
 be gathered from the proceedings and the certificate of 
 sale. What passes when the sale is under the ordinary 
 
 ' I. L. R. 21 Cal. 70, sc, L. R. 20 I. A. 165. 
 
 ■■' AaVIII (B.C.)of i86s,Sec. 16; Art VIII ( B.C.) of i869,Sec. 66. 
 
 ' L. R. 6 I.A. 47.
 
 ENCUMBRANCES. I99 
 
 procedure prescribed in the Code of Civil Procedure is 
 the rights title and interest of the judgment-debtor, and 
 not the tenure in arrear. The construction of sale- 
 certificates has given rise to considerable difficulties and 
 consequent litigation/ In order to avoid these difficul- 
 ties the High Court at Calcutta prescribed different 
 printed forms for the proclamation of sale of a tenure and 
 for the sale of the right, title and interest of judgment- 
 debtors in it. The Bengal Tenancy Act has made a 
 material alteration in the law for the avoidance of en- 
 cumbrances, for the greater protection of holders of 
 encumbrances and under-tenure-holders. The Act 
 makes a distinction in the first place between protected 
 and unprotected interests. Protected interests are 
 defined in section i6o of the Act, and these are 
 interests in land which the sale-laws, whether for 
 revenue or rent, have always protected. Unprotected 
 interests, again, are divided into two classes — registered 
 and notified encumbrances, and ordinary encumbrances 
 not so registered and notified. Section i6i of the Act 
 defines registered and notified encumbrances to be 
 " encumbrances created by registered instruments, of 
 which a copy has, not less than three months before the 
 accrual of the arrear, been served*' under the provisions 
 of section 176 of the Act and in the manner prescribed 
 by Rule 3 of Chapter I of the rules made by the local 
 government.- The proclamation of sale of a tenure, 
 when first published, is required to be for the auction- 
 sale of the tenure subject to registered and notified 
 encumbrances.^ If the final bid at the sale on such 
 a notification is sufficient to liquidate the amount of 
 the decree and costs, the tenure is sold subject 
 to such encumbrances ;* but the purchaser acquires, 
 
 ' Dwarkanath v. Aloke, I. L. R. 9 Cal.641. 
 y Aa VIII of 1885, Sec. 161, cl. (b). 
 ' Ibid, Sec. 163 (2) (a), 
 ' Ibid, Sec. 164 (i).
 
 ces. 
 
 iOO PERMANENT TENURES. 
 
 the right to annul any encumbrances not registered 
 and notified as aforesaid.^ If, however, the bidding 
 '' does not reach a sum sufficient to liquidate the amount 
 of the decree and costs, the decree-holder may require 
 that the final bid be not accepted and a sale free of 
 registered and notified encumbrances do take place. A 
 proclamation should then be issued, fixing a date of sale, 
 not less than fifteen or more than thirty days from the 
 date of the postponement of sale."- On such a sale 
 taking place, the purchaser acquires the right to avoid 
 all encumbrances including registered and notified en- 
 cumbrances. 
 Avoidance of The encumbrances which a purchaser is entitled to 
 
 encumbran- annul do not become ipso facto void by the sale, but are 
 only voidable at the option of the purchaser. In a Full 
 Bench case decided before the Bengal Tenancy Act was 
 passed, the High Court at Calcutta held that on a sale, 
 either for arrears of revenue or for arrears of rent, tenures 
 and under-tenures are not ipso facto avoided, but are 
 voidable only at the option of the purchaser.^ The 
 principle laid down by the Full Bench of the High Court 
 was adopted in the Bengal Tenancy Act, and in section 
 167 the legislature has provided that in order to enable 
 a purchaser to avoid an encumbrance, whether it is 
 registered and notified or not, he must within one 
 year from the date of the sale, or if he had no notice of 
 the encumbrance at the date of the sale, within one 
 year from the date on which he first has had notice of the 
 encumbrance, present to the Collector an application in 
 writing, requesting him to serve on the encumbrancer 
 a notice declaring that the encumbrance is annulled.'' 
 The encumbrance becomes annulled from the date 
 of the service of the notice. A suit for possession 
 
 • Afl VIII of 1885, Sec. 164 (2). 
 ' Att VllI of 1885. Sec. 165 (I). 
 " Titti V. Mohcsh, I. I,.R. 9 Cal. 683. 
 
 * Aa VIII ol 188.S, Sec. i67,subsec. i.
 
 PROTECTION OF SUBORDINATE HOLDERS. •.. ,301 
 
 against the encumbrancer must be brought within 
 the usual period of limitation, namely, twelve years 
 from the date of annulment.* 
 
 Such being the consequences of a sale for arrears Remedies of 
 of rent on holders of under-tenures and mortgagees, holders^&c'^^ 
 persons interested in averting the sale have been given 
 not only the power to pay in the amount of the decree 
 and thus prevent the sale taking place, but there are also 
 provisions for affording sufficient security for the amount 
 thus paid. Bengal Act VIII of 1865, which supplemented 
 the provisions of Act X of 1859, gave to under-tenure 
 holders and other persons interested in the protection of 
 any tenure or under-tenure from sale the same relief as 
 section 13 of Regulation VIII of i8ig afforded to dur- 
 putnidars and other persons similarly situated. Section 
 62 of Act VIII (B.C.) of 1869 reproduced the provision 
 contained in the Act of 1865. The Bengal Tenancy Act 
 allows any person, having an interest which could be 
 voidable upon a sale for arrears, to pay into Court the 
 amount requisite to prevent the sale. He has a lien on 
 the tenure like a salvage lien — the amount being re- 
 coverable, with interest at twelve per cent per annum, 
 as the first charge on the tenure. He is also entitled to 
 take possession of the tenure and to retain such posses- 
 sion until the debt with interest thereon has been dis- 
 cliarged.- But besides these remedies, a person paying 
 the money into Court, whether as a person interested or 
 a person making the payment lawfully, but under a 
 mistake as to his interest, is entitled to get back the 
 amount by an ordinary civil action, or he may deduct the 
 amount so paid in satisfaction of his own debt.* If he is 
 himself the mortgagee, he may add the amount to the 
 mortgage debt. 
 
 ' Aa XV of 1877, Art 121. "- Aa VIII of 1885, Sec. 171. 
 
 ' Aa VIII of 1885, Sec. 172 ; Nobo v. Srinath, I. L. R. 8 Cal. 877 ; 
 
 Lalit t;. Srinibas, I. L. R. 13 Cal. 331. See also Luckhi v. KhettrOj 13 
 B. L. R. 146. 
 
 2
 
 202 PERMANENT TENURES. 
 
 Suit by one The right of one of a number of joint landlords^ as we 
 
 °ords"* '^ have seen, is that of an ordinary judgment-creditor. The 
 older Acts, following similar provisions in the laws for 
 sales for arrears of revenue, prescribed the ordinary pro- 
 cedure followed in execution of decrees for money, and 
 not the special procedure in execution of decrees for rent, 
 and such sales had the same effect even if the tenure it- 
 self were sold, as the sale of any other immovable property 
 sold in execution of a decree not being a decree for 
 arrears of rent payable in respect thereof. ^ An additional 
 restriction was put upon execution of decrees given in 
 favour of sharers, as the tenure could not be brought to 
 sale before the movable properties of the judgment debtor 
 lying within the jurisdiction of the Court were exhausted. 
 Act VIII of 1885 contains no special procedure on 
 the point. Section 188 of the Act seems to imply 
 that a co-sharer has not the right to sue for rent in the 
 same way and under the same procedure as the older 
 Acts enabled him to do. The High Court, following 
 the old practice, has^ however, allowed suits for rent to 
 be entertained at the instance of one co-sharer only, if 
 he has been separately collecting his share of the rent.^ 
 But an execution of a decree for arrears of rent due to a 
 CO sharer is an execution under the Code of Civil Proced- 
 ure only, and not one under chapter XIV of the Bengal 
 Tenancy Act. A suit for rent by a co-sharer must be 
 treated as a suit upon an ordinary contract based upon 
 the implied consent of parties, the tenant agreeing to pay 
 to one of his landlords a portion of tlie total amount 
 payable by him. There is no reason why such a suit 
 should not be entertained, it being perfectly immaterial 
 whether you call the amount claimed rent, or register 
 the suit in the rent register. 
 
 ' Aa X of 1859, Sec. 108; Aa Vin (B.O 1869, Scc. 64. 
 
 « Jadu V. Sutherland, I. L. R. 4 Cal. 556; Giin.c:;i v. Sreenath, I.L.R. 
 5 Cal. 915 ; Lootful v. Gopcc, I. L. R. 5 Cal. 941 ; Obhoy v. Hury, I.L.R. 
 8CaI. 277; Prem u. Mokshoda, 1 !,. R. 14 Cal. 201; Beni v. Jaod, 
 I. L. R. 17 Cal. 390.
 
 INCIDENTS OF PERMANENT TENURES. 203 
 
 Permanent tenures, whether they are mukurrari or Relinquish- 
 not, cannot be relinquished without the consent of the '"^^ ' 
 landlord, and the holder of the tenure cannot put an end 
 to the contract at his own option Notice to the landlord of 
 an intention to relinquish cannot have the effect of deter- 
 mining the contract, which is a contract in perpetuity. 
 
 Tenures and under-tenures are partible by the civil Partition, 
 court ; but the partition does not bind the landlord/ On 
 a partition amongst the landlords, the tenure is split up, 
 and each co-sharer is entitled to consider the land 
 allotted to him on partition as a distinct tenure. The 
 rent is thus split up, and by such a partition one single 
 tenure may be converted into a number of separate 
 tenures Thus, you see, a partition amongst the land- 
 lords is binding on the tenants, but the converse is not 
 true. The effect of a partition of an estate under the 
 Estates Partition Act is also the same. 
 
 The acquisition of land for public purposes very Acquisition of 
 frequently raises questions of considerable difficulty as to public pur 
 the apportionment of the amount of compensation between Poses. 
 the superior and the inferior tenure-holders. Where 
 the quantity of land acquired is appreciably large in pro- 
 portion to the entire area of the tenure, abatement of 
 rent is, as vi^e have seen, a necessity for the benefit of both 
 the tenure-holder and his rent-receiver. But in most 
 cases, especially where the rent is fixed in perpetuity, 
 abatement of rent is not sufficient to compensate the 
 tenant's loss. The fundamental principle, which ought to 
 guide us in all discussions as to the legal relation between 
 the proprietor of the estate or the taluqdar or other 
 superior tenure-holder and the subordinate holder at fixed 
 rent in perpetuity, is that the former is an annuitant and 
 the latter is the real proprietor of the land. The security 
 for the annual payment is all that the annuitant may fairly 
 
 ' Aa VIII of 1885, Sec. 88 : Aa X of 1859, Sec. 27 ; Aa VIII ''B.C ^ 
 of 1869, Sec. 26 ; Judoo V. Jadub, 11 W. R. 294.
 
 204 PERMANENT TENURES. 
 
 claim, if no abatement is allowed. If, however, abatement 
 is allowed, he is entitled to the capitalized value of the 
 amount of his annual loss. It is difficult to see how he 
 can get any thing more, having parted with his proprie- 
 tary right, reserving only an annual sum But the re- 
 ported cases on the subject of the division of the amount 
 of compensation are not quite in harmony with one 
 another. The facts and circumstances of each case have 
 no doubt considerable weight in influencing the de- 
 cisions of the judges, and inducing them to deviate 
 from apparently well-established and well-recognised 
 principles of law. In one of the oldest cases, a case* 
 decided under Act VI of 1857, the Sudder Dewani 
 Adawlut said: — "The Zemindar and the Putnidar are 
 entitled to compensation in proportion to the losses they 
 respectively sustain from the appropriation of their 
 lands and to the remission of the rents which they pay 
 respectively to the Government or the Zemindar. In 
 respect to remission, as the gross rental of the whole 
 putni is to the gross rent of the land proposed to be 
 taken, so will the entire putni rent be to the particular 
 portion of rent to be remitted ; and, with regard to 
 compensation, the principle may just conveniently be 
 stated as follows : — As the gross profit of the putni is 
 to the profit of the putnidar, so will the gross compensa- 
 tion be to the portion of the compensation the putnidar 
 is entitled to recover." These formulas are not, how- 
 ever, easy to work out,- and if the zemindar has re- 
 ceived a large bonus for the grant, another element of 
 uncertainty comes in and complicates the question. In 
 Rayekissory Dassee V . Nilcant,^ Couch, C.J., after stating 
 that the zemindar is only entitled to be compensated for 
 
 ' Sreenath v. Moharaja, S. D. A., i860, p. 326. See Gordon v. 
 Moharaja, Marsh 490. 
 
 ' See Moharajah v. Bengal Coal Co., 10 W. R. 391. 
 » 20 W. R, 370.
 
 APPORTIONMENT OF COMPENSATION. 205 
 
 the loss of annual rent he may sustain by an abatement, 
 being allowed, but nothing, if there is no abatement, 
 his loss being scarcely appreciable, lays down, " the 
 proper mode of settling the rights of the parties is to 
 give to the putnidar an abatement of his rent in propor- 
 tion to the quantity of land which has been taken from 
 him. The zemindar ought to be compensated for the 
 loss of rent which he sustains, and the money ought to 
 be divided between the parties accordingly. The putni- 
 dar's getting an abatement of his rent is to be taken into 
 account, as partly the way in which he is compensated 
 for the loss of the land." The rule here laid down is 
 in accordance with the rule laid down by the Sudder 
 Dewani Adawlut and agrees with the recognised prin- 
 ciples as to the rights of the parties. The rule applies to 
 apportionment as between tenure holders and under- 
 tenure holders. The High Court at Calcutta, however, 
 did not in two later cases^ stick to the rule laid down 
 above. In one of these cases, it was observed that the 
 zemindar was entitled to something more than the mere 
 capitalized value of the loss sustained by him in the 
 shape of rent. It is difficult to see, however, why the 
 zemindar should make a profit by the Government acquir 
 ing land. In later cases,- however, the High Court 
 held that the under tenant was entitled to the entire 
 compensation, no abatement of rent having been granted 
 to the superior tenure-holder. 
 
 ' Godadhar 7;. Dhunput, I. L.R. 7 Cal. 585; Bunwari v. Burnomoyi, 
 I. L. R. 14 Cal. 749. 
 
 ■ Regular Appeals, Nos. 271 & 272 of 1885 (unreported).
 
 LECTURE VII. 
 
 NON-PERMANENT TENURES. 
 
 Temporary We have already seen what the policy of the 
 
 leases not earlier Anelo Indian legislators was with reference to 
 
 dealt with in *= , ,• , • , 
 
 the Regula- intermediate tenures^ —a policy which emanated not 
 ^'°"^- only from a desire to have the largest amount of se- 
 
 curity for the govern nent revenue, but also from an 
 earnest desire to protect the weak peasantry of the 
 country from the rapacity of revenue-farmers and other 
 extortionate intermediate holders. The antipathy of 
 Anglo-Indian statesmen against middlemen could not 
 and did not last long, but apathy took the place of 
 antipathy, and they were extremely slow to legislate for 
 them. No effectual steps were, until very lately, taken to 
 bring, within positive rules of law, questions about the 
 rights and liabilities of farmers and other intermediate 
 holders. Only one class of dependent taluqdars and 
 other similar tenure-holders, whose estates had been rec- 
 ognised at the Settlement, were taken within the 
 purview of Act X of 1859.- The Bengal Tenancy Act 
 has only a few sections on permanent tenures, •' but it 
 is practically silent on temporary or non-permanent 
 tenures. That Act is not a complete code of laws 
 dealing with the relationship of landlord and tenant ; 
 it only amended and consolidated a portion of the law, 
 leaving the other portion to be drawn by the legal pro- 
 fession and judges from scattered rulings of the supe- 
 
 ' Ante p. 141. 
 
 ' Aa X of 1859, Sec. 15. ' Aft Vlll ul 1885, Chup. 111.
 
 SOURCES OF LAW. 207 
 
 rior courts in India and legislative enactments of doubt- 
 ful application. 
 
 There are, in the Bengal Provinces, a very large Sources of 
 number of temporary lease-holders, intermediate be- "* ' 
 tvveen the actual cultivators of the soil — the raiyafs—a.nd 
 the proprietors of estates and permanent tenure-holders. 
 The main sources of the law as to temporary leases are 
 now the Indian Contract Act ( IX of 1872 ) and the 
 Transfer of Property Act ( IV of 1882 ), and it is occa- 
 sionally necessary to look to the law as administered 
 in other countries, and especially in England, to find out, 
 in the words of the Indian legislature, "the rules of 
 justice, equity and good conscience. ''' 
 
 I have already discussed'-^ the question of the appli- Aft IV of 
 
 cability of the provisions of Chapter V of the Transfer 
 
 of Property Act to intermediate leases — leases not /or 
 
 agricultural purposes but of agricultural lands, the 
 
 object of the lessee being not to cultivate lands and 
 
 make profit by such cultivation like tea-planters or 
 
 indigo-planters, but to profit by the collection of rent 
 
 from raiyats on the lands demised or by settlement of 
 
 new raiyats. The settlement of new raiyats can hardly 
 
 be said to be an use of land for agricultural purposes. 
 
 Temporary leases of immovable property are known Vernacular 
 . i I J names of 
 
 in the Bengal Provinces by various names, the term temporary 
 
 ijara being the most common, and the term thika being '^^^^s- 
 generally used in Behar. A sub lease granted by an 
 ijaradar is called darijara. Following the usual nomen- 
 clature, a lease taken from a dar-ijaradar is called 
 se-ijara. Mostajiri is a word derived from the word 
 ijara and is frequently applied to temporary leases in 
 Behar instead of the word thika. The word thika in 
 Bengal has not always the same signification, it being 
 used in some districts, as in the Twenty-Four Pergan- 
 n IS, for permanent raiyati interest and in others for tem- 
 
 ' Aa XII of 1887, Sec. 37, cl. 2. * Ante p. 187,
 
 created. 
 
 208 NON-PtRMANENT TENURES 
 
 porary raiyati leases. A sub-mostajiri tenure is dur- 
 niostajiri^ while the words katkina and dur-katkina are 
 used for inferior subordinate leases in Behar. Other terms 
 are also used in connection with temporary leases. 
 Zuripeshgee leases in Behar have the double character 
 of a mortgage and a lease. 
 Leases how Before the Transfer of Property Act came into 
 
 operation, leases of immovable property like convey- 
 ances of land could be effected by parol. ^ Since the 
 passing of Act XVI of 1864, the first Act that made reg- 
 istration of leases of immovable property for any term 
 exceeding one year or from year to year compulsory, — 
 such a lease of immovable property, when effected by a 
 written instrument, could be valid only if the instrument 
 was registered ; but the Registration Acts did not make 
 the execution of written instruments compulsory, and 
 oral evidence could be adduced to prove a lease for 
 any term. The existence of an instrument executed 
 since the passing of Act XVI of 1864, if the instrument 
 was unregistered, would exclude oral evidence under the 
 Evidence Act.'-^ So that in those days, a lease for a term 
 of years or from year to year could be valid, if made by 
 parol or by a registered instrument. The anomaly, 
 however, his bien removed by the Fransfer of Property 
 Aci.^ Leases from \ear to year, or for any term ex- 
 ceeding one year, or reserving a yearly rent, can now be 
 made only by a registered instrument.* Leases for a 
 term of less than a year only may now be made 
 by any instrument, registered or not, or by parol 
 agreement.^ 
 
 ' Meerza v. Nawab, 4 Sel. Rep , 168; Sheikh v. Sheikh, i B. L. R, 
 ( F.B.) 58, sc 10 W. R. ( F.B. ) 51 ; Nemai v. Kokil, I. L. R. 6 Cai. 534; 
 Chunder t;. Krishna, I. I-. R. 10 Cal., 710 
 
 « Aa I of 1872 , Sec. 91 " Aa IV of 1882, Sec. 107. 
 
 « Aa III of 1877, Sees. 18 ( cl. c. ) and 48 ; Surendra v. Bhai Lai, 
 L L R 22 Cal. 752. 
 
 ' Aa IV of 1882, Sec 107.
 
 VOID I-EASE. 2kD9 
 
 An unregistered instrument of lease for a term of Void leases 
 years or from year to year, executed before July 1882,^ sion there- 
 when the Transfer of Property Act came into force, ""der, 
 is void, and so also a demise by an oral or unregistered 
 lease for a similar period made since that date.- But 
 if the tenant enters into possession under such a void 
 lease, he becomes a tenant from year to year upon the 
 terms of the contract, in so far as they are applicable to, 
 and are not inconsistent with, a yearly tenancy.'' 
 The lessee in possession under a void lease is liable 
 for damages for use and occupation,^ the rent stipulated 
 in the inadmissible contract of lease being the measure 
 of damages. If the lessee has not entered into posses- 
 sion, he will not be liable for rent or damages, nor can he 
 ask for possession by a suit. The practice of delivering 
 possession to ijardars before the completion of the 
 written instrument of lease was very common, and is 
 not unfrequent even now. This is done by the issuing 
 of a notice by the lessor to the village headmen and the 
 raiyats, requiring them to pay rent to the lessee, such 
 a notice being called an amalnama or amaldastak. An 
 amaldastak given as a preliminary to a formal lease 
 has never been considered to be equivalent to a lease^, 
 and "creates no title whatever. It is retained by the 
 lessee as evidence of the contract of lease and of deliv- 
 ery of possession. Under the present law, an amal- 
 nama cannot be used as evidence of a lease for a term 
 of years, but the delivery of possession evidenced 
 by the instrument may be treated as creating a lease 
 
 ' Shaikh v. Abdooi, 9 W. R. 425 ; Puroma v. Proliad, 12 W. R. 289. 
 
 ^ Surendra v. Bhai, I. L. R 22 Cal. 752. 
 
 ' Woodfall's Law of Landlord and Tenant, 14th Ed., pp. 102, 133, 
 137 and 570; Walsh v. Lonsdale, L. R. 21 Ch. D. 9. But see Surendra 
 V. Bhai, L L. R. 22 Cal. 752. 
 
 * Puroma v. ProUad, 12 W.R. 289; Lukhee v. Sumeer, 21 W.R. 208. 
 
 * Munshi Khadim v. Forlong, 3. R. }. P. J., 327. 
 
 A (0
 
 ^*-p 
 
 NON-rtKJilAiJJijNT TENURES. 
 
 Agreement 
 fur a lease. 
 
 Who in ay 
 grant leases. 
 
 ffom year to year, terminable upon proper notice to 
 quit.' 
 
 An agr.e<en>ent for a lease to be executed in future 
 isAOt required to be in writing, but if there is a written 
 ^Witract, the registration of it is compulsory. ^ An 
 agreement merely creates a right to obtain another 
 document, which will, when executed, create an interest 
 in immovable property.^ But an agreement for a lease 
 £)f imjnovable property is required to bear the same 
 stamp underthe Indian Stamp Act (I of 1879) as a lease/ 
 and as registration is compulsory, it has no advantage in 
 saving any stamp duty, and is, in most cases, dispensed 
 mih. If, however, one is executed, it may be enforced 
 by a decree for specific performance. 5 If the agreement 
 is registered, as it must be, in order to be admissible, the 
 tenant holding under it is not a tenant from year to 
 year only, but a tenant holding under the lease itself.*' 
 An agreement for a lease, however, does not of itself 
 eotitle the lessee to obtain possession. Relief on 
 an agreement may be had under the rules and in 
 Ihe manner prescribed in the Specific Relief Act 
 (I of a877). 
 
 Every person competent to contract and entitled 
 to transfer immovable property is also competent to 
 grant a lease for any term of years co-extensive 
 with his own dominion over it ; " and every agent of 
 such person, duly authorized in that behalf, may also 
 
 ' See Syed Sufdar v. Amzad, I. L. R. 7 Cal. 703. 
 
 ' Aa MI of 1877, Sec. 3 ( Definition of lease). Bliairab v. F<ishori, 
 3 B.L. R., App. I ; Biinwaree v. Sungum, 7 W. R. 280. 
 
 " Syed Sufdar v. Amzad, I. L R 7 Cil. 703, 
 
 ' Aft 1 of 1877, Sch. I, Art. iv. 
 
 • Parker v. Taswell, 27 !.. J , Ch. 812. 
 
 " Walsh V. Lonsdale, L. R. 21 Ch. D. 9; /;/ re Manghan, I,. R. 14 
 Q.B.I). 958; Allhusen v Mrooking, L R 26 Ch. D 565; Coatsworth 7.. 
 Johnson, 55 L J., Q. B , 220. 
 
 ' Aa IV of 1882. Sec. 7.
 
 WHO MAY GRANT LEASES. 2Tr 
 
 do the same.^ A lease is a mode of transferring 
 
 property for a term, and is nothing but a conveyance of 
 
 the property let out for the term mentioned in it, subject 
 
 to the payment of rent and the other conditions and 
 
 covenants contained therein. A person, having full 
 
 power of alienation, may grant a permanent lease or a 
 
 lease for any number of years, and for any premium, 
 
 and at any rate of rent as he chooses. 
 
 A karta or manager of a joint family, governed by Managers of 
 .1 n/r.. , ,, , f • 1 -^ • .^ . ,^ ^ \o\nt families, 
 
 the Mitakshara law ot inheritance, is competent to grant a 
 
 lease on any reasonable conditions, best conducive to the 
 interest of the joint family, the restrictions being almost 
 the same as those on his power of alienation. He is in' 
 the position of an agent of the corporate body of which 
 he himself is a member.- Under the Bengal school of 
 Hindu law, a karta of a joint family has much the same 
 powers, and though the shares of the different members* 
 are, in the eye of law, ascertained or always ascertain- 
 able, authority in him is generally presumed, though he 
 is bound to exercise that authority as a prudent owner.* 
 Under the Mitakshara law, a lease granted by one- 
 member, even though he may be the karta^ may be abso- 
 lutely void, even as regards the grantor, if the conditions^ 
 are such as a prudent owner would not agree to ; but in 
 Bengal, a lease under similar circumstances may be 
 valid to the extent of the share of the grantor himself.* 
 
 Permanent leases of endowed properties, both Sevaets and 
 under the Hindu and Mahomedan laws, are void, "*^^^ '^" 
 except under very peculiar circumstances ; but a sevaet 
 or a muhvalli may grant temporary leases on reason- 
 able conditions and for reasonable terms of year^, and' 
 
 ' Aft IX of 1872, Sec. 226 ; Hamilton v. Earl, i Bro. P. C. 341 ; 
 Ridgway t;. Wharton, 3 De, Gex , M. & G. 677. 
 
 ^ Mayne's Hindu Law, Sec. 320, 4th Ed„ 
 
 ^ Brojo t/. Luchmun, W. R., 1864, 83; Muddomutty v. Bamasoon- 
 dary, 14 B. L. R. 21. 
 
 ^ I W. Mac. N. 5 ; Ram v. Mitterjeet, 17 W. R., 420 ; Macdonaid v. 
 Lalla, 21 W. R. 17. See also ilunooman v. Mussumat, 6 M. I. A. 393.
 
 2 12 
 
 NON-PERMANENT TENURES. 
 
 his successor in office will be bound by his acts, the 
 question really being one of necessity and prudence.^ 
 The power of a mohunt of a public mutli is also similarly 
 restricted. Trustees of charities have similar powers 
 to grant leases for the due administration of the trusts. 
 Guardians of 'fhe power of a.defacto guardian of an infant to grant 
 
 infants. . ^ » t> 
 
 leases is, necessarily, of a limited character. He can act 
 only for the benetit of the infant, but if he exceeds his 
 power, the lease granted by him may be avoided in the 
 same way as any other contract made by him.- If it is 
 not for the infant's benefit, the lease is voidable, but it is 
 not absolutely void. The infant on attaining majority, 
 or if he dies under age, his heir may avoid the same. 
 If the de facto guardian be removed, the person who 
 succeeds him may also avoid the lease. The authority 
 of a guardian appointed by a civil court under Act XL 
 of 1858 or the Guardian and Ward's Act (VIII of 1890) 
 is limited to grants of temporary leases for any period 
 not exceeding five years, unless the grant is made under 
 sanction of the court appointing him. 'J The power of a 
 manager under the Court of Wards is also similarly re- 
 stricted. The Court of Wards (the Board of Revenue) 
 may, however, direct the grant of leases for any 
 term, under the rules laid down in the Court of 
 Wards Act.* Whether the infant on attaining the age 
 of majority is bound by a grant made by his guardian 
 or the Court of Wards is a question, the answer to which 
 depends upon the circumstances of each particular case. 
 
 ' Radha v. Juggut, 4 S. D. A. 151 ( 192 ) ; Maharanee v. Mothoora, 13 
 M. I. A 2701 Juggessiir v. Rajah, 12 W. R. 299: T.ihbooniss.i v. 
 Koomar, 15 W. R 228; Arruth v. Jii£^e^urnath, 18 W. R. 439; Bunwaree 
 V. Mudden, 21 \V. R. 417 
 
 -' Lalla t/. Koonwar, 10 Ml. A. 454; Oddoyto 7;. Prosunno, 2 W. R. 
 325; Niibo V. Kalee, S. D. A. ( 1859) 607 Gopee v Ram, Ibid 913; 
 Bobee v. Robert, Ihid 1575. 
 
 » Aa VIII of 1890, Sec. 29, cl. 6 ■ Aa XI. of 1858, Sec. 18; Debi 
 V. Siibodra, I. \. R. 2 Gal. 283. 
 
 ' Aft IX ( B.C.) of 1879, Sec. 18.
 
 WHO MAY GRANT LEASES. 2 I 3 
 
 If the guardian or the manager under the Court of Wards 
 has acted within the powers given him by the law, the 
 infant, when he attains majority, can set aside the lease 
 on proof of fraud, the onus of proof being upon him.i 
 Even if the sanction of the court were obtained in the 
 manner prescribed by law, the infant may shew that the 
 sanction was obtained by misrepresentation or fraud. 
 
 Hindu widows and females enjoying what is known Hindu 
 to be the widow' s estate^ have the same limited powers ^^' "^^^^^ 
 in granting temporary leases as in dealing with 
 their properties in other ways. The test is necessity. 
 A lease granted by a Hindu widow terminates with 
 her death, even if her death takes place at the middle of 
 a year of the lease. The after-taker is entitled to take 
 possession at once ; but the lessee may protect himself 
 by showing that the lease was for necessary purposes, 
 granted for the protection of the estate or improvement 
 of the property demised, and he may then be allowed to 
 hold on till the end of the term. If, however, the lease 
 is such that prudential considerations only induced the 
 widow to grant it without actual necessity, and if it be 
 not a burden on the estate, the lessee ought to be allow- 
 ed to hold on till the end of a year of the lease. 2 
 
 The case of mortgagors granting leases is very Mortgagors, 
 common in this country, notwithstanding the covenant, 
 generally to be found in mortgages, prohibiting such 
 grants. A covenant in a mortgage, restraining aliena- 
 tions by a mortgagor, merely creates a personal liability 
 but does not render a lease granted by him void and in- 
 operative.* A temporary lessee from the mortgagor is a 
 necessary party in a suit upon the mortgage, and if the 
 decree is not passed in a suit properly framed, the decree 
 
 ' Sikher v. Dulputty, I. L. R. 5 Cal. 363. In the matter of the 
 petition of Shrish Chunder Mookhopadhaya, I. L R. 6 Cal i6l. 
 
 • Loll V Hurre, i Marsh 113. 
 
 ' AH V. Dhirga, I. L. R. 4 All. 518: Venkata v. Kannam, I. L. R. 5 
 Mad. 184 ; Radha v. Monohur, I. L. R. 6 Cal. 317.
 
 214 NOM-PERMANKNT TENURES. 
 
 does iTot bind him. The purchaser on a sale under the 
 mortgage is not entitled to possession, evicting the lessee, ^ 
 if the lessee has not been made a party to the suit. 
 Interprcta- Difficulties occasionally arise in the interpretation of 
 
 tion of leases, deeds. The intention of parties must be gathered from the 
 written instrument taken as a whole. Ambisuities and 
 omission of material and necessary covenants are fre- 
 quent sources of litigation. Parol evidence, evidence of 
 circumstances existing at the time of the execution of the 
 lease, and evidence of custom and usage may be given to 
 explain ambiguities and supply the absence of material 
 covenants. The description of the property demised 
 is occasionally a source of litigation, but well known 
 local divisions, such as villages and perganahs, defined by 
 Thak and Survey maps, and mouzawar registers general- 
 ly help us in finding out with sufficient exactness the 
 property demised. Where the lease is of land lying 
 within specified boundaries, the estimated area is not the 
 test of what is really conveyed.-* Evidence may be given 
 of the names used generally by the people and the names 
 used during a long course of years by the lessor himself 
 in his zemindari books and zemindari papers previous 
 to the lease. When any technical word is used, evidence 
 may be given to show its meaning. '^ 
 When leases ^ lease, like most other grants, begins to operate 
 
 begin to from the date of its execution, entitling the lessee to 
 
 operate. • . i i , , 
 
 have possession and the lessor to liave rent,' unless a 
 
 coiitravy intention appears from the words used in the 
 
 instrument. The inartistic way, however, in which leases 
 
 in the vernacular languages are generally drawn, leaved 
 
 out. in many instances, the dates of the commencement of' 
 
 the leases. The beginning of the agricultural year or of* 
 
 ' KokH-p; Dull, 5 C. L. R. 243; DIr Gopal i». BoJakee, I. L. R: 5 
 Cal. 269 ; Jugul V. Kartic, I. L. K. 21 Cal. 116. 
 
 • Sheeb t;. Brojanath, 14 W.R. 301 ; Kazeo 7;. Buroda, 15 W.R. 394. 
 ' Woodfail un Landlord and Icnaiit, p. 141. 
 
 * Underwood v Horwood, 10 Ves. 2oy.
 
 WHAT LEASES AiRE VALID. 2 I 5 
 
 the year according to the local calendar is considered, in 
 such cases, to be the time whence the lease begins to 
 operate and is calculated to supply the omission in the 
 written instruments. The custom in each locality and the 
 convenience of the parties in the collection of rent from 
 the raiyats on the land, are, also, to be taken into con- 
 sideration.^ If the lessor has not collected from the 
 raiyats rent from the beginning of the month of Baisakh 
 in districts in which the Bengali year prevails^ and the 
 lease is executed in one of the earlier months, a pre- 
 sumption arises that it was the intention of the parties that 
 the lease should operate from the first day of Baisakh of 
 the current year. If the lease has been executed at the 
 middle of the year or later, and the landlord has received 
 from the lessee rent from the beginning of the year at the 
 time of the execution of the instrument, the lease should 
 be considered to have retrospective effect. So in the 
 province of Behar, the presumption, in similar circum- 
 stances, will be, that the lease has begun to run from the 
 beginning of the month of Aswin. But the express 
 covenants in a lease cannot be controlled by custom. 
 Evidence of the custom of the country or locality may be 
 given to fix the time, only if the lease is entirely silent. - 
 
 It is not necessary, in order to give validity to a lease, Present pes- 
 that the lessor should be in possession at the date of its 
 execution or be capable of giving possession to the 
 tenant at once. A lease to commence upon the expira 
 tion of a previous lease, or on the happening of a con- 
 tingency is good in law and may be enforced.^ An 
 agreement to grant a lease or a lease itself, executed by 
 a person who is out of possession and who is litigating 
 or intends to litigate for possession, with the help of the 
 person who has taken or has agreed to take the lease, 
 
 ' Wigglesworth v Dallison , i Dong 201, sc, i Smith's L.C. 598. 
 
 - Webb V. Plummer, 2 B & A 746. 
 
 ' Pitchakutti v. Kamala, i Mad. H. C. 153. 
 
 session not 
 necessary.
 
 2 1'^ NON-PERMANKNT TENURES. 
 
 though the transaction is champertous, is not illegal in 
 India and may be enforced. i A covenant in a lease to 
 grant a new lease on the same terms on the expiration of 
 a subsisting lease, is good, and covers all the covenants 
 except the covenant for renewal. 2 But if the stipula 
 tion to renew the lease is coupled with conditions to be 
 performed by the lessee, and the lessee fails to perform 
 the same, the fact of the landlord allowing the tenant 
 to hold over does not affect the landlord's ri^ht to re- 
 
 o 
 
 sume possession after due notice.^ 
 Delivery of The lessor is bound at the lessee's request to put 
 
 ^°^ ■ him in possession of the property.* If the lessor fails 
 
 to deliver possession, the tenant is not bound to pay 
 rent, as rent is payable only for the use and occupation 
 of the land.-'^ The failure of the lessor to point out 
 the land or to give proper notice of attornment to the 
 raiyats, or any defect in the lease which incapacitates 
 the lessee from recovering rent from the raiyats in 
 occupation, is a good ground for absolving the lessee 
 from liability to pay the rent reserved in the contract 
 of lease. 
 Rate of rent. The omission of words fixing the rate of rent or the 
 
 insertion of words for the ascertainment of rent on 
 measurement, raises questions of construction. If the rate 
 of rent is not mentioned, the rent previously paid for 
 the land or the total amount of collection, less a reason- 
 able percentage for collection-charges, should be con- 
 sidered as the annual amount agreed to be paid. In a 
 suit for provisional rent, there being a condition in the 
 lease for measurement or ascertainment of the rent-roll 
 
 ' Ched.imhara v. Renja, it R. I, R. 509; 22 W. R 148; L R i 
 I A. 24 : Abdool v. Doorpa, I. L R. 5 Cal. 4 
 
 * P. & O S. N. Co V. Konnoy, 2 Hyde 217. 
 
 ' Fukeeroonissa 1/. Chunder, 12 W. R. 538 
 
 ' Afl IV of 1R82. Sec. 108, rl (b) ; Muncc r. Campbell, n W.R. 278; 
 12 W. \i 149. Radhanath 11. Joy, 2 C L. R , 302. 
 
 ■■ Aa VIII of 1885, Sec 3, siib-scc. 5 ; Hurish v. Mohincc, 9 W. R. 
 582 ; Bullcn V. Lalit, 3 M I. R. App., 1 19.
 
 EVICTION. 217 
 
 by local investigation, the defendant may plead that he is 
 not bound to pay the provisional rent and may ask that 
 the rent may be ascertained. But until ascertainment, 
 the landlord is entitled to receive the provisional rent.^ 
 Assessment for excess land, according to a contract 
 of lease, need not necessarily be made in a suit for the 
 purpose ; it may be made in a suit for arrears of rent. 2 
 
 The landlord is not only bound to deliver posses- Eviaion of 
 sion, but to do every thing in his power to keep the lessee by title 
 
 ' , . . paramount. 
 
 tenant in quiet possession during the continuance of 
 the tenancy.'^ Eviction by title paramount causes sus- 
 pension of rent.* But if the eviction be the effect of a 
 mere trespass, the lessee is not excused from the pay- 
 ment of rent, as in such a case the lessee is entitled to 
 recover possession and damages from the trespasser.* If 
 the lessor has no title, the lessee has no remedy against 
 eviction by title paramount, and the landlord's right to 
 rent ceases with the cessation of the tenants' possession. 
 *"' According to English law," as expressed by Peacock, 
 C. J., in Gopanund Jha v. Lalla Gobind Pershad^ " if 
 the lands demised be evicted from the tenant or re- 
 covered by a title paramount, the lessee is discharged 
 from the payment of the rent from the time of such 
 
 ' Bharuth v. Bepin, 9 W. R. 495. 
 
 * Ram V. Gumbeer, 19 W. R. 108; Ramjan v. Amjad, I. L. R. 20 
 Cal. 903. 
 
 ' Aa IV of 1882, Sec. 108, els. (b) and (c). 
 
 ' Braja v. Hira, i B. L. R , A. C, 87, sr., 10 W. R. 120 ; Bullen v. 
 Lalit, 3 B.L R. App. 119 ; Gobind i;. Munmohun, 14 W.R. 43; Musst. 
 Hoymobutty v. Sreekishen, 14 W. R. 58; Gobind v. Kristo, 14 W. R. 
 273; Kristo 7;. Koomar Chunder, 15 W.R. 230; Douzelle v. Girdharee, 
 23 W.R. 121. 
 
 * Woodfall's Landlord and Tenant, p. 425. Hunt v. Cope, Cowp. 
 243 ; Rung V. Lalla Roodur, 17 W. R. 386; Chunder v. Juggut, 22 W. R, 
 337; Tarini^;. Gunga, L L. R. 14 Cal. 649; Obhoya v. Koilash, \. L. R. 
 14 Cal. 751. 
 
 * Gopanund v. Lalla, 12 W. R. 109. See also Kadumbinee v. Kashee- 
 nath, 13 W. R. 338; Gobind v. Munmohun, 14 W. R. 43; Massamat v. 
 Sreekishen, 14 W. R. 58; Dhunput v. Saraswati, L L. R. 19 Cal. 267. 
 
 B (I)
 
 a part. 
 
 2l8 NON-PERMANENT TENURES. 
 
 eviction." Complete eviction by a landlord himself, it is 
 needless to add, causes total suspension of rent.^ 
 Eviflion from Where the lessee is evicted from a part of the lands 
 
 by a stranger who has a title superior to that of the lessor, 
 he has to pay to his landlord only a ratable proportion 
 of his rent for the land that remains in his possession.^ 
 If a part of the lands be destroyed by an act of God, 
 as by the action of a river, the same effect would follow, 
 and the tenant will be bound to pay only a ratable pro- 
 portion of the rent. But if the tenant be evicted from a 
 part of his lands by the landlord himself, his assignee or 
 any person claiming through him, the question of abate- 
 ment is one of a little difficulty. In the case of Gopannnd 
 Jha and others v. Lalla Govinda Pers/iad 2i\vea.dy cited,* 
 the tenant defendant had been evicted under a title 
 paramount from two out of a number of mouzas held by 
 him under a lease, and Peacock, C. J., gave a decree to 
 the plaintiff landlord, for a proportionate amount of rent 
 according to the quantity of land in the possession of 
 the lessee. His Lordship, in the course of the judgment, 
 quoted, as apparently applicable to this country, the 
 following passage from Bacon's Abridgment — " Where 
 a lessor enters forcibly into part of the land, there are 
 variety of opinions whether the entire rent shall not 
 be suspended during the continuance of such tortious 
 entry, and it seems to be the better opinion and the 
 settled law at this day, that the tenant is discharged 
 from the payment of the whole rent till he be restored to 
 the whole possession, that no man maybe encouraged to 
 injure or disturb his tenant in his possession, whom by 
 the policy of the law, he ought to protect and defend.'^* 
 
 ' Morrison v. Ch.idwick, 7 C 1?., 266; 6 D. and L. 567. See 
 Dhunput V. Mahomed Kazim, I. L R. 24 Cal. 296. 
 
 • Gopanund v. Lalla, 12 \V. R. 109; Imambandi t/. Kamaleswari, 
 I. L. R. 21 Cal 1005. 
 
 * Bacon's Abridgment Tit. Rent (M). See also Smith's Law of L.L.T., 
 p. 287, Edition II ; Morrison v. Chadwick, 7 C. B., 266 and aiitc p. 217, 
 note C.
 
 SUSPENSION OF RENT. 2x9 
 
 This suspension of the whole rent is a sort of punish- 
 ment, as a dispossession of a proportionately small 
 parcel of land, from a mistake or misapprehension, 
 may make the landlord lose the entire rent. In a 
 country like India, where land is plenty, waste and 
 unoccupied lands lying on the border between adjoining 
 estates are common enough, and where demarcation by 
 fences and pillars is little known, this stringent rule 
 may cause serious injury, and it would appear to be in- 
 equitable and unjust to deprive the landlord of the 
 entire rent. The judges in this country are not bound to 
 adopt the rules of Common Law, prevailing in England, 
 and I hope that in any future case that may arise 
 the dictum of Sir Barnes Peacock, which is an obiter^ 
 will be reconsidered. In England, the rule of law as to 
 the suspension of the whole rent is guarded by condi- 
 tions, and is allowed to operate under peculiar circum- 
 stances only. It is doubtful, whether, even in England, 
 the rule would be applied to cases of permanent leases at 
 fixed rent, which partake more of the nature of out and 
 out sales of land and less of ordinary leases, though 
 according to the definition of lease given in the Transfer 
 of Property Act (IV of 1882), permanent tenures are 
 leases.* 
 
 There is no suspension of rent, if the eviction by the Eviaion for 
 
 landlord has followed upon some wrongful action of the wrongful 
 I Tf 1 1 1 • r a6lion of 
 
 lessee. It the lessor enters by virtue or a power lessee. 
 
 reserved,^ there is no suspension of rent. Even 
 if the power to enter reserved to the landlord be exer- 
 cised in a way not strictly regular, there will not be 
 entire suspension of rent. In the case of Rani Swarna' 
 mayi v. Shashimiikhi Barmani^^ a putni sale, under 
 which a purchaser under Regulation VIII of 1819 had 
 evicted the defendant and taken possession of the taluq, 
 
 ' Aa IV of 1882, Sec. 105. " Woodfall's Land, and Ten., p. 425. 
 ■' 2 B. L. R., P. C, 10, sc, 12 M. I. A. 244. See also Dhunput Singh 
 V. Sardswati, I. L. R 19 Cal. 267.
 
 220 
 
 NON-PERMANENT TENURES. 
 
 Disturbance 
 of lessee's 
 possession. 
 
 was set aside for Irregularity in the service of notice of 
 sale proclamation. In a subsequent action for rent for 
 the period including the period of dispossession, the Privy 
 Council held that the zemindar could not be said to have 
 committed an act of trespass, because she had pursued 
 the remedy which the law allowed. The mere inadver- 
 tence resulting in the omission of one of the formalities 
 prescribed by the Regulation was considered suffi- 
 cient to deprive her of her remedy for rent — and 
 it could not be said that the plaintiff was taking 
 advantage of her own wrong. The principle laid down 
 in this case may well be followed in cases, where the 
 dispossession of apart of the lease-hold property is the 
 result of mere inadvertence or mistake. 
 
 If the lessor enter as a mere trespasser, but the 
 lessee be not actually evicted, there will be no suspen- 
 sion of rent.^ It is only on actual eviction that suspen- 
 sion of rent may take place. But if there is substantial 
 interference with the tenant's enjoyment of the pro- 
 perty though there may not be actual eviction, the tres- 
 pass by the landlord may cause suspension of rent.' 
 An action for damages may lie in case of trespass,as also 
 in the case of partial eviction. Where possession by an 
 ijardar or lessee is by collection of rent, and if he is 
 once properly in possession, the raiyats having attorned 
 to him, eviction is not an easy matter. Payment of rent 
 to a trespasser does not amount in law, as administered 
 in this country, to dispossession of an ijardar during the 
 term of his lease. He may sue the tenants for rent, even 
 if they have voluntarily paid rent to a trespasser.' 
 
 ' Hunt 1/. Cope, Cowp. 243 : Newton v. Allin, i O. B. 517. See 
 Douzeiie v. Girdharee, 23 W. R. 121 ; Tarini v. Gunga, I. L. R. 14 
 Cal. 649; Obhoya v. Koilash, 1. L. R. 14 Cal. 751. 
 
 ■^ Upton V. Townend, 17 C. B. 30; Edge v. Boileau, L. R. 16 Q. B. 
 D. 117; Neale v. Mackenzie, i Keen 474; Kadumbinee v. Kashee- 
 nath, 13 W. R. 338; Kristo v. Koom.ir Chunder, 15 W. R. 230. 
 
 " Tarini v. Gunga, I. L. R. 14 Cal. 849 ; Sarbananda v. Pransankar, 
 I. L. R. 15 Cal. 527 ; Abhayessari v. Shidheswari, I. L. R. 16 Cal. 513.
 
 ENCROACHMENT BY TENANTS. 
 
 221 
 
 Otherwise it will rest with the tenants in actual occupa- 
 tion of the land to select their landlord, and change the 
 landlord as often as they like. 
 
 Encroachments made by a tenant during his tenancy Encroach- 
 
 .... » 1 f 1 • 1 11 1 • ment by 
 
 upon the adjoining land or his landlord are prima- tenant on les- 
 
 facic for the benefit of the tenant during the term, and ^^""'^ '^"'*- 
 afterwards for the benefit of his landlord, unless it clear- 
 ly appears by some evidence that at the time they were 
 made, the tenant intended to use the lands for his own 
 exclusive benefit, and not to hold them as a part of the 
 property leased. '^ Strong evidence is necessary to re- 
 but the presumption in favour of the landlord. Speaking 
 of this presumption in favour of the landlord, Markby, J., 
 says — " In India where there is a great deal of waste 
 land, and whose quantities and boundaries are very often 
 ill-defined, there are very strong reasons for the ap- 
 plication of such a rule. -^ ^ ^ If an act is capable of 
 being treated as either rightful or wrongful, it shall be 
 treated as rightful," and his Lordship adds — "that in 
 practice encroachments made by a tenant are not con- 
 sidered as held by him absolutely for his own benefit 
 against his landlord."- Encroachments being thus for 
 the benefit of the landlord, the landlord may, after the de- 
 termination of the lease, recover the encroached lands 
 together with and as part of, the land let out.^ A separate 
 suit may lie for the recovery of the encroached lands 
 within twelve years from the expiration of the term. 
 Even during the term of the lease, however, the landlord 
 may sue for separate possession, if the encroachments are 
 without the landlord's permission, and no limitation 
 
 ' Kingsmill 7>. Millard, ii Exch. 313; Earl of Lisburne v. Davis, 
 L. R. I C. P. 259, sc, 35 L. J , C. P. 193 ; Whitmore v. Humphries, 
 L. R. 7 C. P. I, sc, 41 L. J , C. P. 43 ; Andrews v. Hailes, 2 E. & B. 
 349 ; Gooroo v. Issur, 22 W. R 246; Nuddyarchand v. Meajan, I. L. R. 
 10 Cal. 820. 
 
 ^ Gooroo V. Issur, 22 W. R. 246. 
 
 ^ Andrews v. Hailes, 2 E. & B. 349.
 
 222 NON-PERMANENT TENURES. 
 
 would run against the landlord merely because the lessee 
 is in possession for twelve years.' We have also seen 
 that for the increase of area of land under such circum- 
 stances, the landlord may demand an increase of rent.* 
 Encroach- Encroachments by a lessee upon the land of a third 
 
 ^rangel's person enures to the benefit of the landlord, if the ten- 
 
 ^^^^- ant holds the lands as a part of the tenure, as he is con- 
 
 sidered to have made the encroachments not for his 
 own benefit but for that of his landlord ; and if he has 
 acquired a title against the third person by adverse 
 possession, he has acquired it for his landlord and not 
 for himself.^ But if it cani be distinctly proved that 
 the encroachments have been made adversely even to his 
 landlord, twelve years' possession may give the tenant 
 a separate title. Land encroached upon by a tenant 
 before the commencement of his tenancy of the adjoin- 
 ing land cannot, however, be recovered by the landlord.* 
 Lessees can- During the continuance of the lease, the lessee can- 
 
 any right"^^ not acquire any right in the lands demised, that may be 
 
 against lessor set up against the lessor after the determination of the 
 during lease. , „ ^ . • i ^ r si 
 
 lease. He cannot acquire a right oi occupancy" by 
 
 cultivating land, whatever the length of time may be. 
 Neither can he acquire the right to hold on any land by 
 erecting substantial structures on it'* or excavating 
 tanks. On the expiry of the lease, he is bound to de- 
 liver possession of the lands demised, without the 
 slightest abatement of the right which the landlord had 
 
 ' Gooroo V. Issiir, 22 W. R. 246; Nuddyarcli ind v. Meaj:ui, I. I.. R. 
 10 Cal. 820. 
 
 * Afiie p. 139. 
 
 ' Kingsmill v. Millard, 11 Kx. 313; Andrews v. Hailcs, 2 E and B. 
 349; Nuddyarchand v. Meajan, I L.R 10 Cal. 820. 
 
 ' Mears v. Ferrott, 4 C. & P. 230; Dixon v. Baty, I, R. 1 Kx. 259; 
 ic, 14 Wee. Rep 836 ; Lloyd v. Jones, 15 M. Si. W. 580. 
 
 ■* Aa VIII of 1885, Sec. 22, sub.-sec. 3 ; Mr. Gilmore v. Sreemunt, 
 W.R., 1864, ( Aa X ) 77 ; Woomanath v. Koomdun, 19 VV.R. 177 ; Ranee 
 V. Mr. Hinny, 25 W.R. 347 ; Rai Komul v. Laidley, I. L R. 4 Cal. 957. 
 
 " Aa IV of 1882, Sec 108, cl. (p).
 
 LIMITATION. 223 
 
 at the date of the demise.' He is entitled to remove 
 the structures,^ but if his actions have, in any respect, 
 deteriorated the value of the land or any part of it, he 
 is bound to pay compensation for the loss that may be 
 sustained by the lessor on re-entry. If a lessee ejects 
 raiyats and takes khas possession of any land, he is not 
 entitled to retain possession of such land after expiry of 
 the lease, if he takes away earth from the land for the 
 purpose of making bricks, the landlord may restrain him 
 by injunction and may, at his option, sue for damages.^ 
 He is also not entitled to cut down and appropriate timber 
 or fruit trees, unless he himself has planted them. He 
 cannot also appropriate any land as his rent free hold- 
 ing. If, after the expiration of the lease and delivery 
 of possession to the landlord, he claims to hold posses- 
 sion of any land comprised in the demised premises, 
 under any title independent of the lease, the burden 
 of proof is heavily upon him to show that such title 
 exists, the presumption being against his having any 
 independent right to any parcel of land.* 
 
 Limitation which bars the tenant does not bar the Limitation 
 landlord. If the lessee negligently allows a third per- JS^j"'^ '^"^■ 
 son to take possession of the lease-hold property or any 
 part of it, and if such person acquires, by adverse pos- 
 session for more than twelve years, a title, such title 
 is good against the lessee only or his assignees or legal 
 representatives, but cannot be pleaded against the land- 
 lord.* The landlord may bring a suit for declaration 
 of his right during the continuance of his lease, but his 
 
 ' A61 IV of 1882, Sec. 108, c!s. (m) and (q). 
 
 2 Aa IV of 1882, Sec io8, cl.(h). 
 
 ^ Kadumbenee v. Nobeen, 2 W. R. 157; Anund 7;. Bissonath, 17 
 W. R. 416; Tarini -J. Debnarayan, 8 B. L. R. App. 69; Mr. Peter v. 
 Tarinee, 23 W. R. 298. 
 
 ' Ramsarun v. Veryag, 25 W. R. 554. 
 
 * Womesh v Raj, 10 W. R. 15 ; Krishna v. Hari, I L. R. 9 Cal, 
 367 ; Bissesuri i;. Barod i, I. L. R. 10 Ca ]. 1076; Sharat v. Bhobo 
 I, L, R. 13 Cal. loi.
 
 224 
 
 NON-PERMANENT TENURES. 
 
 Payments 
 made by 
 lessee for les- 
 sor's benefit. 
 
 Assignment 
 of lessor's 
 right. 
 
 having the right to ask for declaration does not pre- 
 vent his suing for possession, at any time within twelve 
 years after the determination of the lease. 
 
 " If the lessor neglects to make any payment which 
 he is bound to make, and which, if not made by him, is 
 recoverable from the lessee or against the property, the 
 lessee may make such payment himself, and deduct it 
 with interest from the rent, or otherwise recover it from 
 the lessor."' This is in accordance with the well known 
 principle of law, that a person is entitled to be re- 
 imbursed for payments made by him for the protection 
 of his own interest, when the payment ought lawfully 
 to have been made by another person.''' 
 
 On the assignment of the interest of the lessor or of 
 any part of his interest therein, the transferee has all 
 the rights of the transferor and all his liabilities.^ A 
 notice ought, on such transfer, to be given to the lessee; 
 otherwise the lessee shall not be liable to pay rent to 
 the transferee, and any payment made bona fide by the 
 lessee to the original lessor would be considered as 
 good.* Rent is considered as accruing due from day to 
 day, and it is apportionable, between the original lessor 
 and his transferee on the principle that it has so 
 accrued.' If the assignment is made at the middle 
 of a month, the apportionment should be made like 
 interest on money and as accruing from day to day ; 
 but the tenant is not bound to pay the original 
 lessor and his transferee separately and he may claim 
 to pay the rent in one lump sum as the instalment 
 falls due.*^ When a part only of the property or a part 
 only of the lessor's interest is assigned, the apportion- 
 ment of rent may be made by consent of all the parties 
 
 ' Aa IV of 1882, Sec. 108, cl. (g). 
 
 ' Aa IX of 1872, Sec. 69. 
 
 " Aa IV of 1882, Sec. 109. 
 
 ' Aa IV of 1882, Sees, so and 109; Aa VIII of 1885, Sec. 72. 
 
 » Aa IV of 1882, Sec. 36. 
 
 ' Chatraput v. Grindra, I. L. R. 6 Cal. 389.
 
 COVENANTS RUNNING WITH THE LAND. 225 
 
 concerned. But if they disagree, any court, having 
 jurisdiction to entertain a suit for possession of the 
 land, may determine the question.' 
 
 In the absence of a contract or local usage to the Assignee's 
 contrary, a lessee has power to transfer during his term, ''^''•'■'y- 
 either absolutely or by way of mortgage or sub-lease, the 
 whole or any part of his interest in the property, and 
 any transferee of such interest or part may again trans- 
 fer it.'* As a matter of fact, express prohibition 
 against assignment and creation of subleases is generally 
 found in contracts of tenancy. The custom or usage of 
 non-transferability has to be proved in each case. The 
 burden is always difficult to discharge, and it being on 
 the landlord, the lessee's right is generally held to be 
 transferable. The reported cases, however, are not quite 
 in harmony.^ The case of a farmer of a revenue-paying 
 estate, in respect of which default has been made in 
 paying revenue, or the lessee of an estate under the 
 management of a Court of Wards, is an exception as to 
 the right of assignment.* A lessee, however, continues 
 liable upon the covenants in the lease notwithstanding 
 the assignment. An action for breach of covenant will 
 lie against a lessee for a term of years on the covenants, 
 notwithstanding that he has assigned his term and the 
 lessor has accepted rent from the assignee.* The liabili- 
 ties attaching to the lease must, however, be express. 
 The liability of the assignee begins with the assignment, 
 and so of the assignee of an assignee. The lessor may 
 sue both the original lessee and his assignee for breach of 
 
 ' Aa IV of 1882, Sec. 109, cl. (3); Bliss v. CoUings, 5 B. and A. 876. 
 
 ' Aa IV of 1882, Sec. 108, cl. (j) ; Ram Baran v. Salig Ram, I.L.R. 
 2 Ail. 896. 
 
 ■' Doya Chand v. Anund, I. L. R. 14 Cal. 382; Kripamoyi v. Durga, 
 I. L. R. 15 Cal. 89; Appa v. Subbanna, I. L. R. 13 Mad. 60. 
 
 ' Aa IV of 1882, Sec. 108, cl. (i), proviso. 
 
 ' Aa IV of 1882, Sec. 108, cl. (j). Barnard v. Godscall, Cro. Jac. 
 309 ; Thursby v. Plant, i Wms. Saund. 240. 
 
 C (I)
 
 2 36 NON-PERMANENT TENURES. 
 
 any covenant, but he can have execution against one only. 
 
 A deed of assignment is necessary to be registered under 
 
 the law for the registration of deeds. 
 
 Covenants The assignee, however, is bound only by the covenants 
 
 running with ^^.j^j^h riimvith the /and, and i\ot the personal covenants 
 the land. ' 
 
 of the original lessee.^ Covenants that run with the 
 land are real i.e., annexed to an estate. Such cove- 
 nants bind all persons who come into possession of 
 the real property, either by operation of law or by act of 
 parties.* In countries where conveyancing is a science 
 and an art, the word "assigns" is almost invariably 
 mentioned in leases, whether a covenant is implied by 
 law to be real or expressly made so by contract. 
 But in this country instruments in the vernacular 
 languages do not, as a rule, contain the word " assigns", 
 and questions, therefore, may arise here as to what are 
 the covenants in a lease which run with the land? All 
 covenants implied by law run with the land, and both 
 the lessor and the lessee and their respective assignees 
 are bound by them. A covenant to pay rent^ or taxes 
 is essential to the existence of the lease and must run 
 with the land. A covenant to maintain an embankment 
 in use for protection against inundation is also an 
 important one and is real.* Conditions as to paying 
 rent to the superior landlord of the lessor, to renew a 
 lease, and to pay damages for not giving information 
 to the police of the commission of an offence or for not 
 supplying provisions to an army passing through the 
 estate, are other instances of covenants that run with 
 the land. An express condition for re-entry on the 
 breach of a covenant is also an instance of a real cove- 
 nant. The rights and liabilities of the lessor and the 
 
 ' See Spencer's case, i Smith L. C. Woodfall's Land, and Ten., (14th 
 edition) p. 273. 
 
 • Esp. N. P. 290, Woodfall's Land, and Ten., (14th edition) pp. 167, 
 168. 
 
 ' Parker v. Webb, 3 Salk. 5. 
 
 ' Morland v. Cook, L.R., 6 Eq. pp. 212 267, sc.,37 L.J., Ch. 825.
 
 DETERMINATION OF LEASE. 
 
 227 
 
 sometimes determining 
 lease. 
 
 lessee, as indicated in section 108 of the Transfer of 
 Property Act, are all instances of covenants running 
 with the land. 
 
 The duration of a lease depends upon the term Duration of 
 fixed in it, and where that is uncertain, it may be '^^^^• 
 ascertained with reference to collateral circumstances. 
 " Where the time so limited is a year or a number 
 of years, in the absence of an express agreement to 
 the contrary, the lease shall last during the whole anni- 
 versary of the day from which such time commences."^ 
 
 An option to determine a lease before the end of Option of 
 
 the term mentioned in the contract is 
 
 given by the instrument itself. The option may be 
 
 in the lessor or in the lessee, in either of which cases 
 
 previous notice in writing is generally stipulated for 
 
 in the contract. If the lease omits to mention at whose 
 
 instance it is to terminate, the lessee, and not the lessor, 
 
 shall have the option.* 
 
 Covenants to renew leases occasionally raise nice Covenants to 
 . ^ , ™, J , renew leases, 
 
 questions ot law. Ihese are, as 1 have already said, 
 
 covenants that run with the land.^ The right may be 
 forfeited by not applying in time.* If the tenant, 
 however, is allowed to hold on, a renewal may be pre- 
 sumed, though the presumption may be rebutted.^ The 
 non-performance by the lessee of any covenant causes 
 forfeiture of the right to renew, as such covenants are 
 strictly construed.^ Where there is a condition for 
 renewal at an enhanced rate of rent, according to the 
 
 ' Aa IV of 1882, Sec no, cl 2 
 
 * Aft IV of 1882, Sec no, cl. 3. Dann v Spurrier, 3 Bos & P. 399 ; 
 Webb V. Dixon, 9 East, 15 ; Failor v. Robins, 16 Ir. Ch. R 422. 
 
 ' Isteed V. Stoneley, i Anderson 82 ; Brooke v. Buikeley, 2 Ves. Jiin. 
 498 ; Roe V. Hayley, 12 East 464. 
 
 * Woodfall's Land, and Ten., (14th edition) p. 383. 
 
 * Moss V. Barton, 35 Beav. 197, sc, L.R. i Eq. 474 ; Bogg v. Midland 
 R. Co , L. R., 4 Eq. 310 ; Fukeeroonissa v. Chunder, 12 W R. 538 
 
 " Finch V. Underwood, L. R. 2 Ch. D. 310 ; Bastin v. Bidwell, L. R. 
 18 Ch. D 238.
 
 228 NON-PERMANENT TENURES. 
 
 rate prevailing in the neighbourhood at the date of the 
 
 expiration of the existing lease, the lessee must apply in 
 
 time for assessment of rent ; otherwise he forfeits his 
 
 right of renewal. If he does not agree to pay as much 
 
 as is paid for neighbouring lands, he loses his right. 
 
 Determina- Section 1 1 1 of the Transfer of Property Act enume- 
 
 tion of leases. , ,, ,.,. r ^i j i^ • -• r i 
 
 rates the conditions tor the determination of leases. 
 
 Of these, cases of merger and forfeiture for breach of 
 covenant referred to in clauses (d) and (g) require special 
 attention. The determination of a lease by notice to 
 quit is also an important matter for consideration. 
 Merger In Womesh Chunder Goopto v. Rajnarain Roy^ 
 
 Peacock, C.J., is reported to have said : — " My impres- 
 sion is that the doctrine of merger does not apply to 
 lands in the mofussil in this country ;'' and L. S. 
 Jackson, J., concurring with the Chief Justice added in 
 the same case — " I am not aware of any solid foundation 
 for the opinion that that doctrine is any part of our mofus- 
 sil law." But the decision of the appeal was based 
 upon another ground, and the opinion expressed by 
 Peacock C. J., and Jackson, J., was merely an obiter. In 
 a later case* the question of the applicability of the Eng- 
 lish law of merger in the mofussil of this country was 
 raised, but was not decided, although the judges were in- 
 clined to hold that it did not; but Markby, J., said that, 
 assuming the English law of merger was applicable, the 
 dry rule of merger according to the Common Law of 
 England should not be applied, but " that rule 
 should be modified by all the equities which an 
 English Court of Chancery would import into the 
 consideration of the case." There can be no doubt 
 that the rule of Common Law, which is highly 
 technical, ought not to be applied to the dealings of par- 
 ties in the mofussil of this country. It is not only op- 
 posed to the well-known practice of landlords and 
 
 ' 10 W. R. 15. ^ Rushton v. Atkinson, 1 1 W. R, 485.
 
 MERGER. 229 
 
 t.^nants, but it does not rest on any broad intelligible 
 principle of ja-;tice, and ought not to be applied to 
 Indian transactions. At all events, its operation ought 
 to be excluded or defeated, wherever there are clear 
 declarations of intention and unequivocal evidence of 
 conduct of the person, who has become the owner of 
 the superior as well as the inferior right. ^ In Savi 
 v. Punchanun Roy,"^ the High Court at Calcutta declined 
 to follow the technical rule of English law, and ever 
 since it has been taken to be established, that the rule 
 does not apply in India. The decision in Prosiinno 
 Nath Roy v. Jogiit Chunder Pundit^ turns upon the 
 facts of the particular case and not upon the application 
 of the maxim " Nemo potest esse tenens et dommics" . In 
 England too, this strict rule of Common Law was found 
 to work injustice, and required to be modified in equity, 
 and at last the Judicature Act of 1873 distinctly laid 
 down — " There shall not, after the commencement of the 
 Act,* be any merger by operation of law only of any 
 estate, the beneficial interest of which would not be 
 deemed to be merged or extinguished in equity ''* Our 
 legislature, however, has laid down broadly, in the Trans- 
 fer of Property Act, the rule that a lease of immov- 
 able property determines, " in case the interests of the 
 lessee and the lessor in the whole of the property become 
 vested at the same time in one person in the same 
 right.'^'^ This rule applies to all kinds of leases — 
 temporary or permanent, and there is no express re- 
 servation for the application of any equitable doctrine, 
 such as the Judicature Act would require in England. 
 
 ' See Gokal v. Puranmal, I. L. R. 10 Cal. 1035. Adams v. Angell, 
 L. R. 5 Ch. D. 634 ; Toulmin v. Steere, 3 Men, 210, dissented from. 
 2 25 W. R. 503. 
 
 ^ 3 C L. R. 159. (The reporter's note is erroneous). 
 * 1st of Nov., 1875. 
 
 ^ Judicature Aft, 1873, Sec. 25, sub-sec. (4). 
 « Aa IV of 1882, Sec. Ill, cl. (d).
 
 23° NON-PERMANENT TENURES. 
 
 The fram=!rs of the Act adopted the rule from the old 
 Common Law cases, apparently forgetting that in India 
 the art of conveyancing has been and is of a very simple 
 character, that formal conveyances to trustees expressly to 
 prevent merger' are almost unknown to the people and 
 the lawyers practising in the mofussil, and that benaini 
 conveyances, which are looked upon with disfavour by 
 the judges, are not sufficient to mitigate the rigidity of 
 the rule thus laid down. Evidence of intention to keep 
 both the rights alive would, I apprehend, be now ex- 
 cluded. If a zemindar lets out a village, included in his 
 estate, in putni, and afterwards purchases the putni him- 
 self, the interests of the lessor and the lessee in the whole 
 of the village would vest undoubtedly in one person at the 
 same time. It is difficult, however, to understand the exact 
 intention of the Legislature in the use of the expression 
 " in the same right," and these words may afford some 
 means of escape from the rigidity of the rule. If it 
 implies that the purchase by the zemindar of the 
 putni and the consequent vesting may be in a right dif 
 ferent from that of his zemindari right, and not in the 
 same right, we may, perhaps, escape from the difficulty. 
 But such a distinction is inappreciable and too line for 
 the judges and lawyers for whom the Anglo-Indian Codes 
 have been professedly framed. 
 Forfeiture. Determination of a lease by forfeiture jmay take 
 
 place — {a) in case the lessee breaks any express covenant 
 which provides for re-entry on breach thereof or 
 renders the lease void, or {b) the lessee denies the 
 landlord's title. ^ The landlord's right to eject the 
 tenant and re-enter on a forfeiture under the first 
 head cannot accrue, unless there is a breach of a con- 
 dition^ and the penalty for the breach is expressly 
 
 ' Belaney v. Belancy, I,. R. 2 Ch. Ap. 138 See also Gokal v. \\\vnn 
 Mai, I. L. R. loCal. 1035. 
 
 ^ Lit. s. 325; Doe d. Wilson v. Phillips, 2 Bing 13. 
 ' Aft IV of 1882, Sec. iii.cl. (g)
 
 FORFEITURE. 
 
 231 
 
 re-entry^ and avoidance of the lease, and the landlord 
 does some act showing his intention to take advantage 
 of the conduct of the lessee. The breach of an implied 
 condition cannot cause forfeiture. Even non-payment 
 of rent cannot in itself be a cause of incurring the 
 penalty of forfeiture, unless there is an express covenant 
 to that effect. - 
 
 Forfeiture by disclaimer or denial of the landlord's Disclaimer, 
 right cannot happen as to permanent tenure-holders and 
 occupancy-raiyats under the Bengal Tenancy Act.'^ But 
 the law, as understood before and as enunciated in the 
 Transfer of Property Act, and which is applicable to all 
 classes of tenants except raiyats with rights of occupancy, 
 is broader than the English law on the subject. The 
 rule of English law is, that where, by matter of record, 
 a tenant disclaims his landlord's title, and sets up an 
 adverse title either in himself or in some third party, 
 he thereby forfeits his tenancy ; but denial by 
 parol does not cause the forfeiture of a lease for a 
 term certain. In Bengal, however, denial by parol is 
 admissible. In order to make a disclaimer sufficient, it 
 must amount to a direct repudiation of the relationship 
 of landlord and tenant, or to a distinct claim to hold 
 possession upon a ground wholly inconsistent with 
 that relationship, so that there is by necessary impli- 
 cation a repudiation of it. As to what is a disclaimer 
 is a question of fact. 
 
 The right to eject a tenant on disclaimer which has Notice of 
 caused forfeiture arises on the tenant's action, and no ejeament. 
 
 ' Transfer of Property Aft, Sec. iii, cl. (g). Tamaya v. Timapa, 
 I. L. R. 7 Bom. 262; MusyatuUa v. Noorzahan, I, L. R. 9 Cal. 808; 
 Narayanai'. Narayana, I. L. R. 6 Mad. 327. 
 
 ^ Aa VIII of 1885, Sees. 10 and 25 ; Debiruddi v. Abdur, I. L. R. 
 17 Cal. 196; Kabil v. Chunder, I. L. R. 20 Cal. 590-, Dhora v. Ram, 
 ibid loi. 
 
 » Sutyabhama v. Krishna, I. L. R. 6 Cal. $$ ; Prannath v. Madhu, 
 I. L. R. 13 Cal. 98; Baba v. Vishvanath, I. L. R. 8 Bom. 228.
 
 232 
 
 NON-PERMANENT TENURES. 
 
 What consti- 
 tutes dis- 
 claimer. 
 
 Disclaimer of 
 the title of an 
 assignee of 
 the landlord. 
 
 notice to quit is, therefore, necessary to entitle the land- 
 lord to sue. It is enough, if the landlord shows by any 
 overt act, his intention to re-enter. The law, as under- 
 stood before Act IV of 1882 came into force, did not 
 require the landlord to do any act showing his intention 
 to determine the lease. 
 
 The mere assertion by the tenant that he holds 
 under a right superior to that of a temporary lessee, 
 when the relationship of landlord and tenant is 
 admitted, does not amount to a disclaimer of the 
 title of the landlord.^ The principle of the deci- 
 sion in Vivian v. Moat- and ^aba v. Vishvanath 
 Joshi'-^ has been held to be wholly inapplicable in 
 Bengal, where there are numerous tenures held by 
 persons at fixed rents. It has never been understood 
 in this part of the country, that the assertion of such 
 a ritjht is a denial of the landlord's title as such. 
 Courts in this country are reluctant, for obvious reasons, 
 to give the landlord the right to cancel a lease for 
 conduct on the part of a lessee, which is easy of ex- 
 planation or arises out of confusion of facts. The 
 frequent disputes between rival landlords and un- 
 certainty of title common in this country are fertile 
 causes of confusion in ignorant and illiterate people, 
 and it will be inequitable to take advantage of their 
 weakness and credulity. 
 
 The denial of the title of an assignee or other 
 legal representative of the landlord may, also under 
 certain circumstances, cause forfeiture. The rule, that 
 a tenant may not dispute his landlord's title, applies 
 only to the title of the original landlord, who let 
 him in and not to the assignee of such landlord or any 
 other person claiming through him.* The tenant may 
 
 ' Doma V. Melon, 20 W. R. 416; K^li v. Golam, I. 1.. R. 13 Cal 3. 
 But see Baba v. Vishvanath, I. L. R. 8 Bom. 228. 
 
 » L. R., 16 Ch. D., 730. ^ I. L. R. 8 Bom. 228. 
 
 ' Doorga v. Srco, 18 W. R. 465.
 
 j 
 LIMITATION. 
 
 dispute the title of the assignee and put him to the strict 
 proof thereof. If, however, the lessee or tenant has 
 paid rent to the assignee, he can defeat the title of the 
 assignee only by showing that he paid rent in igno- 
 rance of the true state of things and that some third per- 
 son is entitled to it. The burden is on the tenant to make 
 out a case of fraud, misrepresentation or mistake ' The 
 Land Registration Act, compelling the registration, of 
 the names of the [)roprietors of estates, and the Bengal 
 Tenancy Act, of assignments and succession to per- 
 manent tenures, will, it is hoped, materially diminish, 
 in future, litigation with reference to such questions. 
 
 The period of limitation for a suit by the landlord to Limitation of 
 eject a tenant on the determination of a lease is, under '^"'*^- 
 the general law, twelve years. ^ The tenancy may be 
 determined on the happening of any of the events con- 
 templated by section III of the Transfer of Property 
 Act, and that section includes the case of the determina- 
 tion by forfeiture,^ either on account of a breach of a cove- 
 nant or disclaimer of the landlord's title. Under the 
 Bengal Tenancy Act, however, the rights of permanent 
 tenureholders* and of raiyats holding at a rent, or rate of 
 rent, fixed in perpetuity/ or having occupancy-rights,* 
 cannot be terminated on account of disclaimer of land- 
 lord's right,'' and the period of limitation, for a suit for the 
 ejectment of a tenure-holder or a raiyat on account 
 of any breach of condition in respect of which there 
 is a contract expressly providing that ejectment shall 
 
 ' Aa I of 1872, Sec. 116; Banee i^. Thakoor, B. L. R., F. B,, Sup. 
 Vol., 588, sc, 6 W. R. (Aa X) 71. 
 
 2 Aa XV of 1877, Sch. H, Art 139 ; Kedar^/. Khettur, I. L. R. 6 Cal. { 
 
 34; Gunesh v. Goudour, I. L. R. 9 Cal. 147. But see Gangai;. Zahuriya, * 
 
 I. L. R. 8A11. 446; Musharaf v. Iftkhar, I. L. R. 10 All. 634; Soman 
 V. Raghubir, I. L. R. 24 Cal. 160. 
 
 ^ Aa IV of 1882, Sec. HI, cl. (g). ' Aa VIII of 1885, Sec. 10, 
 
 * Aa VIII of 1885, Sec. 18. « Aa VIII of 1885, Sec. 25. 
 
 ' Debiruddit-. Abdur, I. L. R 17 Cal. 196; Dhora v. Ram, I. L. R. 
 20 Cal. loi. j 
 
 D(I)
 
 234 NON-PERMANENT TENURES. 
 
 be the penalty of such breach, is only one year/ The 
 rule of twelve years applies to all non-agricultural leases 
 and leases of agricultural lands in districts to which the 
 Bengal Tenancy Act has not been extended. The diver- 
 gence as to the periods of limitation, with reference to 
 similar kinds of interests in land, is rather wide, and I 
 hope there will be early interference by the legislature. 
 Waiver of Courts are always reluctant to allow a landlord to 
 
 or ei ure. take advantage of a breach of covenant entitling him 
 
 to re-enter. Any act, on the part of the landlord, show- 
 ing an intention to treat the lease as subsisting, has 
 been held to operate as a waiver of the forfeiture.* 
 But the mere lying by and witnessing the breach is no 
 waiver ; there must be some positive act.^ Neither will 
 an act done, acknowledging the continuance of the 
 tenancy, operate as waiver, if the act be done by the 
 landlord without knowledge of the tenant having com- 
 mitted a breach which would cause forfeiture.* Notice 
 or knowledge of the forfeiture, at the time of the sup 
 posed waiver, affords evidence of intention in the land- 
 lord to accept the lessee as a tenant, notwithstanding 
 the breach. 
 Acceptance Acceptance of rent accruing, due after the forfeiture 
 
 of rent as operates as waiver of forfeiture. ° But if it is accepted 
 
 waiver of ' ... . . 
 
 forfeiture. after the institution of a suit for ejectment on the 
 ground of forfeiture, there is no waiver. Forfeiture may 
 also be waived by distress for rent," as distress can be 
 levied only on a tenant. Forfeiture may also be waived 
 by pleading.' But the waiver of one breach does 
 not bar the cancelrnent of the lease for a subsequent 
 
 ' Aa VIII of 1885, Sch. Ill, Art. I. 
 
 ^ Aft IV of 1882, Sec. 112. ' Sheppard v. Allen, 3 Taunt. 78. 
 
 ♦ Aa IV of 1882, Sec. 112. 
 
 » Aa IV of 1882, Sec. 112 ; Knii v. Fuzie, I. I.. R. 9 Cai. 843; 
 Jogeshuri v. Mahomed, I. L. R. 14 Cai. 33. 
 
 " Grimwood v. Moss, L. R. 7 C. P. 360 ; Ward v. Day, 33 L. J., 
 Q B. II ; Cotesworth v. Spol<es, 30 L. J., C. P. 220. 
 
 ' Evans v. Davis, L, R,, 10 Cli. D. 747.
 
 RELIEF AGAINST FORFEITURE. 235 
 
 breach.' Receipt of rent or distress can only be an ac- 
 knowledgment of the tenancy up to the date of the re- 
 ceipt of rent or distress, and the waiver of any forfeiture 
 up to a certain day cannot be pleaded in defence to an 
 ejectment for a subsequent breach, even where the 
 breach is of a continuing nature.* 
 
 As regards 'non-permanent tenures, it is doubtful Relief against 
 
 ° '■ • -J J u forfeiture. 
 
 whether the remedial provision, such as is provided by 
 section 155 of the Bengal Tenancy Act, apply to 
 them. It would seem from the definition of the word 
 ' tenant', as given'in the Act, that the section does 
 apply to non-permanent leases as well to permanent 
 leases and raiyati interests. If so, the sections of 
 the two Acts have to be read together, and the res- 
 trictions put upon the right of the landlord by section 
 155 of the Bengal Tenancy Act should be attended to. 
 The Conveyancing and Law of Property Act, 1881, 44 
 and 45 Victoria, Cap. 41, which came into operation 
 from the ist January 1882, restricts in England the 
 landlord's right of forfeiture, and the main provisions 
 in this respect. ^have been embodied in section 155 
 of the Bengal Tenancy Act, but attention was not 
 paid to these provisions when the Transfer of Pro- 
 perty Act was passed in the beginning of the year 
 1882, and the reason seems to 'be that the Act had 
 been drafted before the Conveyancing andXaw of Pro- 
 perty Act, 1 881, was passed. 
 
 Special provision has been made for relief against Relief against 
 forfeiture for non-payment of rent.^ Before the Trans- nmi-payment 
 fer of Property Act came into force, Courts in Bengal, of rent, 
 following the analogy of section 78 of Act X of 1859 and 
 section 52 of Act VIII (B.C. ) of 1869, granted, in similar 
 cases, equitable relief against forfeiture, by allowing the 
 
 ' Dulli V. Meher, 8 W. R. 138'; Chunder v. Sirdar, 18 W. R. 218. 
 » Doed. Mustin v. Gladwin, 6 Q. B. 953. 
 s Aa IV of 1882, Sec. 114.
 
 236 KON-PERMANENT TENURES. 
 
 judgment-debtor to pay in the amount of debt and costs 
 within fifteen days of the dale of the judgment.^ The 
 Bengal Tenancy Act has made a provision similar to 
 that laid down in the old Rent Acts, in the case of 
 tenants other than permanent tenure-holders, raiyats 
 holding at fixed rates and occupancy raiyats,- who 
 cannot be ejected for non-payment of rent.^ Under that 
 Act, the landlord is entitled to institute a suit for 
 ejectment of a tenant, other than tenants specified above, 
 for non-payment of rent, when an arrear of rent re- 
 mains due after the end of the Bengali year, where 
 that year prevails, or at the end of the month of 
 Jaist where the Fasli or Amli year prevails. This 
 right may be exercised whenever arrears are due 
 at the end of the year, whether a decree for rent 
 has been passed or not. The right does not depend 
 upon any covenant for ejectment on failure to pay rent, 
 as it does not arise out of contract, but is given to 
 the landlord by the statute. When the right is given 
 by a contract, the provisions of section 114 of the 
 Transfer of Property Act apply. But do they apply 
 to temporary leases of agricultural lands in the Mof^usil ? 
 The same legislature has, in the course of three years, 
 passed two enactments, many of the provisions of 
 which interlap each other, while some of them are not 
 quite consistent. The earlier enactment^ is broader 
 in application, both as to its local extent and the class of 
 cases to which it applies, the later one' applies only to 
 agricultural lands in Bengal and is merely the reproduc- 
 tion of the law enunciated in Act X of 1859 with slight 
 modifications. You will observe that a tenant, the in- 
 cidents of whose relationship with the landlord are 
 
 ' Mothoora 1;. Ram, 4 C. L. R. 469; Mahomed v. Peryag, I. L. R. 
 7 Cnl. 566. 
 
 • Aa VIII of 1885, Sec. 66. • Aft VIII of 1885, Sec. 6s. 
 
 ' A6t IV of 1882. 
 ' Aa VIII of 1885.
 
 RELIEF AGAINST FORFEITURE. 237 
 
 governed by theTransfer of Property Act, must, before 
 he can ask for relief against forfeiture for non-payment 
 of rent, at the hearing of the suit, pay or tender, to the 
 lessor, the rent in arrear with interest and full costs, or 
 give such security within fifteen days as the court thinks 
 sufficient for making such payment. There is no su( h 
 restriction in the Bengal Tenancy Act. 
 
 We must take it, therefore, that in the Moffusil of Remedial 
 these provinces, where either Act X of 1859, ^^t VIII ^Yie Rent 
 (B.C.) of 1S69 or Act VIII of 1885 applies, the remedial Afts. 
 provisions contained in these enactments apply to tem- 
 porary leases. The reported cases, bearing on the con- 
 struction of section 78 of Act X of 1859 and section 52 of 
 Act VIII (B.C.) of 1869, seem to indicate that the rule ap- 
 plies to all leases, temporary or perpetual, whenever there 
 is a condition for ejectment for non-payment of rent. 1 
 The Bengal Tenancy Act has, as we have already seen, 
 practically, made the condition for ejectment for non- 
 payment of rent, in cases of permanent leases, void and 
 incapable of being enforced by judicial process. ^ The 
 condition is enforceable only in cases of non-perma- 
 nent or temporary tenures. 
 
 The remedial provision in section 66 of the Bengal Aft VIII of 
 Tenancy Act, which is applicable even when there is no ' ^^' ' 
 
 covenant for ejectment on non-payment of rent, gives 
 fifteen days' time from the date of the decree to pay in 
 the arrears of rent, interest and costs, and if the Court 
 be closed on the fifteenth day, the time is extended to 
 the day on which the Court re-opens.^ The time may 
 also be extended by the Court for special reasons The 
 liability to ejectment may thus be avoided, and thus the 
 
 ' Jan V. Nittyenund, lo W. R., F. B., 12 ; Duli v. Meher, 12 B. L. R. 
 439, sc, 8 W. R. 138 ; Mothoora v. Ram, 4 C. L. R. 469 ; Mahomed v. 
 Peryag, I. L. R. 7 Cal. 566, overruling Mumtaz v. Grish, 22 W. R. 376. 
 
 ' Ante p. 181. 
 
 ' Aa VIII of 1885, Sec. 66, cl. (2). See Hossein v. Donzeile, I. L. R. 
 5 Cal. 906.
 
 238 NON-PERMANENT TENURES. 
 
 tenant may save himself from forfeiture, notwithstand- 
 ing his agreement.^ The fifteen days' time runs from 
 the date of the final decree, if there be an appeal-, 
 and the Appellate Court has also the power to extend 
 the period. Payment under protest may be sufficient.^ 
 Holding over. Ijara or thika leases are generally, at the crea- 
 
 tion, for a term exceeding one year. The lessee 
 or underlessee remains in possession after the end 
 of the term, and the lessor or his legal representative 
 accepts rent from the lessee or underlessee, or other- 
 wise assents to the continuance of the lease. ■» The 
 tenancy thus becomes one from year to year, and is 
 terminable by notice to quit "' The ' notice may be 
 waived on the part of the person giving it by any act 
 showing an intention to treat the lease as subsisting. •* 
 Notice to A notice suiflcient in law to determine the tenancy 
 
 *!"''• must, however, be given to one party by the other, 
 
 and must be duly served. The Bengal Tenancy Act 
 contains provisions for service of notices to quit on 
 non-occupancy raiyats" and under-raiyats,'' but it has 
 made no provision for service of notice for determina- 
 tion of other kinds of tenancies terminable at the option 
 of either of the parties. We are not, however to under- 
 stand from this omission that notice to quit is unneces- 
 sary in other cases. The Transfer of Property Act says 
 -*' In the absence of contract or local usage to the 
 contrary, a lease of immovable property granted for 
 purposes other than agricultural or manufacturing, shall 
 
 ' Jan V. Nitfyenund, 10 W. R , F. B, 12 Madhub v. Ram, 16 W. R. 
 151 ; Dull V. Raj. I. L R 9 Cal. 88. 
 
 " Noor I). Koni, I. I,. R. 13 Cal. 13. 
 
 ' Sreeshteedhur v. Doorga, 17 W. R. 462. 
 
 * Aa IV of 1882. Sec 116 
 
 ' Aft IV of 1882, Sec. Ill (h) ; Ram v. Mussamut, 7 W. R. 152 ; 
 Chaturi v. Makund, I. L. R. 7 Cal. 710. 
 
 " A61 IV of 1882, Sec. 113. ' Aa VIII of 1885, Sec 45. 
 
 ' Aa VIII of 1885, Sec. 49
 
 NOTICE TO QUIT. 339 
 
 be deemed to be a lease from month to month, termin- 
 able, on the part of either the lessor or the lessee by 
 fifteen days' notice, expiring with the end of a month 
 of the tenancy."^ The notice must be given in writing 
 by the party or his authorized agent, and served 
 generally as summons in a suit in a civil court. Proof 
 of the posting of a letter containing the notice has been 
 considered sufficient, there being a general presumption 
 in favour of the delivery of letters properly addressed 
 and posted, and the endorsement on the cover, purport- 
 ing to be by an officer of the post office to the effect 
 that the addressee refused to accept the letter, has also 
 been considered sufficient service. If personal service 
 cannot be had, the delivery or tender to a member 
 of the family or servant or authorized agent at his 
 residence, and not on the demised premises, has also 
 been considered sufficient. There may be substituted 
 service by the notice being affixed on a conspicuous 
 part of the property. 
 
 The Act is, however, silent as to what would Notice must 
 be considered proper notice, when by contract, ex- ^^ proper, 
 press or implied, or by local usage, the tenancy is one 
 from year to year. It has been held in some cases, 
 that the notice to quit is required to be reasonable 
 only/^ The notice must, however, be to quit at the 
 end of a year of the tenancy. A notice to quit at the 
 middle of the year or at the end of any one but the 
 last month of a year appears to me to be bad.^ The 
 notice, however, need not mention the particular day 
 on which the tenant is required to quit. The words 
 — " at the expiration of the current year's tenancy" — 
 
 ' Aa IV of 1882, Sec. 106. 
 
 « Prosunno v. Sheikh, I. L. R. 3 Cai. 696; Ram v. Netro, I. L. R. 
 4 Cal. 339; Jubraj v. Mackenzie, 5 C. L. R. 231 ; Jagut v. Rup, I. L. R. 
 9 Cal. 48; Radha 7;. Rakhal, I. L. R. 12 Cal. 82 ; Bidhu v. Kefyut, 
 I. L. R. 12 Cal. 93; Kali v. Golam, I. L. R. 13 Cal. 3. 
 
 ' Mahomed v. Jadoo, 20 W. R. 401.
 
 notice. 
 
 340 NON-PERMANENT TENURES. 
 
 are sufficient. In some of the Calcutta cases it has been 
 held that it is not necessary that the notice should be 
 to quit at the end of a year of the tenancy, if tiie notice 
 is otherwise reasonable.^ But whatever the law might 
 have been, the Transfer of Property Act and the Bengal 
 Tenancy Act have practically settled the question. A 
 notice to quit at the end of ten days, terminating on 
 the 25th Jaist,- or within thirty days^ from the date of 
 service or the date of notice, is equally bad. 
 Six months' The notice to quit at the end of a year of the tenancy 
 
 must be served in reasonable time.* In all cases six 
 months' time is sufficient, unless there is a special con- 
 tract. But a notice to quit must be served before the 
 beginning of the agricultural season or the season for 
 making settlement with raiyats. If a year of the tenancy 
 in Bengal ends in Choitra, as it almost always does, the 
 notice must be served at least in Falgoon. What is a 
 reasonable notice is a question of fact and should be de- 
 termined from the evidence and circumstances of each 
 case.* It was at one time contended, and contended with 
 success, in the Calcutta High Court that the service of a 
 notice to quit was not absolutely necessary to entitle the 
 landlord to maintain a suit for possession of the demised 
 land, and that the suit itself might be considered as a 
 notice.' But this view was not upheld by the Full Bench 
 of the Court which held that previous service of a rea- 
 sonable notice to quit was absolutely necessary to entitle 
 the plaintiff to maintain a suit for possession against 
 
 ' Jagut V. Rup, I. L. R. 9 Cal. 48; Radha v. Rakhal, 1. L. R. 12 Cal. 
 82 I Bidhu V. Kefyut, I I. R. 12 Cal. 93 ; Kali v. Golam Ali, I. L. R. 13 
 Cal. 3. 
 
 * Ram V Netro, 1. L. R. 4 Cal. 339. 
 " Jubraj V. Mackenzie, 5 C. L. R. 231. 
 
 ' Bakra v Binod, 1 H. I. R. (F. B.) 25 ; Janoo v. Brijo, 22 W. R. 548. 
 " Jagut V. Rup, I !.. K. 9 Cal. 48 ; Radha v. Rakhal, I. L. R. 12 
 
 Cal. 82. 
 
 • Hem V. Radha, 23 W. R. 440.
 
 EFFECT OF DETERMINATION OF LEASE ON SUB-LEASES. 241 
 
 the tenant/ and the Transfer of Property Act has ap- 
 parently adopted the principle of this decision. It 
 seems to me that the safest course for the landlord is 
 to adopt the English rule i.e., six months' rule. If there 
 is an annual rent reserved, the tenancy is one from 
 year to year and is not terminable except at the end 
 of a year of the tenancy. This rule of English law is 
 consonant with justice and equity and consistent with 
 the principle laid down in section io6 of the Transfer 
 of Property Act. 
 
 A notice in the alternative form to quit or pay Form of 
 additional rent is very common in this country. In one "o*''^^- 
 case-, Garth, C. J., was of opinion that such a notice 
 was bad, but the opinion of the Calcutta High Court, 
 as also the practice of the country, are against the view 
 expressed by the learned Chief Justice.^ No particular 
 form of words is necessary in this country, — it is 
 sufficient if the notice is explicit enough as to the 
 meaning conveyed. 
 
 The determination of a lease of immovable pro- Determina- 
 perty also determines sub-leases and interests created !'°" of sub- 
 by the lessee.* As I have already said, the interest 
 created by a lessee cannot be more extensive than 
 his own interest, and as soon as the lease terminates, 
 the landlord is entitled to have possession of the lease- 
 hold property in the same condition as it was at the 
 date of its letting. But there is an exception in 
 the case of a surrender of a lease, either express or 
 implied. The landlord ought not to be allowed, to 
 the prejudice of an underlessee or a mortgagee, to 
 take advantage of a relinquishment, which, by law, he 
 
 ' Rajendro v. Bassider, I. L. R. 2 Cal. 146, overruling Hem v. 
 Radha, 23 W. R. 440 ; Ram v. Netro, I. L. R. 4 Cal. 339. But see Ram 
 V Dina, I. L. R. 23 Cal. 200. 
 
 "^ Mohamaya -v. Nil, I. L. R. 1 1 Cal. 533. 
 
 ' Janoo V. Brijo, 22 W. R. 548 ; Budun v. Khettur, 24 W. R, 441. 
 
 ' Act IV of 1882, Sec. lis. 
 
 E (I)
 
 242 NON-PERMANENT TENURES. 
 
 is not bound to accept, and which can be valid only 
 with the consent of parties.^ The landlord ought not 
 also to take the same advantage as regards limitation in 
 suits to avoid encumbrances, as he would be entitled to 
 do on the determination of the tenancy upon the terms 
 of the original contract or by operation of law.* To 
 allow the lessor to take advantage over third persons 
 by an action depending on the will of himself and 
 his lessee, after such third persons have acquired 
 rights either through acts or omissions of the lessee, 
 may give a premium to fraud.* 
 Eff a of f r Forfeiture for a breach of covenant, unless it is 
 
 feiture on brought about by fraud, has the same effect as the 
 
 determination of the lease by efflux of time. It 
 annuls all underleases and charges created by the 
 lessee.* 
 Rights ac- The expiry of a lease does not entitle the lessor 
 
 quired by ^.^ ^^^ ^^ ^^^ j.^ j-jghts acquired by the lessee by 
 
 purchase of subordinate rights in the lands leased 
 to him, whether the purchases are made on volun- 
 tary conveyances or on forced sales in execution of 
 decrees, even if the sales are for arrears of rent. 
 We have already seen' that the doctrine of merger 
 ought not to be applied in its entirety to the dealings 
 of people in this country. If a lessee for a term of 
 years purchases a transferable subordinate right or a 
 right of occupancy on a sale in execution for arrears 
 due to him, there Is no reason, in the law as administered 
 in this country or in equity, why he should lose the 
 
 ' Mellor V. W.itkins, L R. 9 Q B. 400 ; Jiidoo v. Schoene 
 Kilburn, I. L. R 9 Cal. 671 ; Great Western Railway Co. v. Smith, 2 
 Ch. D. 253 ; Venl<ata v. Ananda, 5 Mad. If. C. 120 
 
 * Brindabun v. Bhoopal, 17 W. R. 377. 
 
 " Aft IV of 1882, Sec. lis. Heera v. Guntja, 10 W. R. 384 
 
 * Aa IV of 1882, Sec. 115 Great Western Railway Co. v. Smith, 
 2 Ch. D. 253. 
 
 * Ante p. 229.
 
 EFFECT OF DETERMINATION OF LEASES ON SUB-LEASES. 243 
 
 benefit of the purchase and lose also the money which he 
 is legitimately entitled to have, and which, perhaps, he 
 has himself paid to his own lessor. The interest of an 
 ijaradar or farmer of rent is only temporary, while 
 that of a proprietor or a permanent tenure-holder is 
 such that the merger of a right of occupancy, under 
 the provisions of section 22 of the Bengal Tenancy 
 Act, cannot, in the great majority of cases, prejudi- 
 cially affect his right. The section itself contemplates 
 the case of a proprietor or a permanent tenure-holder, 
 and not that of an ijaradar or farmer of rents. 
 
 But rights acquired by a lessee as such in the nature Right of oc- 
 of increments to the demised premises pass to the cupancy. 
 lessor. If a lessee for a term of years gets the renewal 
 of a temporary lease from Government, in his own name, 
 the landlord will be entitled to claim the right so ac- 
 quired from Government as one acquired on his behalf. 
 
 The determination of a lease cannot affect any right 
 of occupancy acquired by the lessee before the creation 
 of the lease. The reported cases go further, and it has 
 been held, that in the course of acquisition, a lease only 
 keeps the right in abeyance. ^ A person ought not 
 to be made to lose a right for ever, simply because he 
 acquires a superior right of a temporary character, and 
 the landlord ought not to be allowed to take, from the 
 creation of a lease, the advantage of extinguishing rights, 
 which he would not otherwise be entitled to do. 
 
 ' Mokoondy v. L. G Cruwdy, 17 W. R. 274.
 
 LECTURE VIII. 
 
 Assignment 
 of land for 
 service. 
 
 Conversion of 
 service into 
 rent. 
 
 SERVICE TENURES. 
 
 In ancient societies, payments even in grain, in 
 lieu of services rendered to the State or communities, 
 were rare, if not quite unknown. Assignment of de- 
 finite pieces of land was the usual mode for requiting 
 public officers — the village headman (mandal), the 
 accountant (patwari), and other important functionaries 
 in the villages. The village watchman, the chozvkiciar, 
 has, even now, his land — land held in his family for count- 
 less generations. The appropriation of land for the dis- 
 charge of duties to the State was, in fact, the normal 
 condition of things in almost all countries, in the earlier 
 stages of civilization. Military service was peculiarly 
 within this rule. 
 
 The progress of time brought on necessary changes. 
 The tendency in all offices to become hereditary, and 
 the hereditary possession of land for the discharge of 
 the same duties for generations, became^ the source of 
 considerable inconvenience, and the system, of allotting 
 land for services to the State, became rarer and rarer. 
 Where hereditary employments and consequent posses- 
 sion of land had become inseparably connected, the con- 
 version of service into rent was found to be advantage- 
 ous both to the holders of the land and to the State. Ser- 
 vice was commuted into rent by mutual consent, and what 
 were originally service-tenures became revenue-paying 
 or rent-paying tenures.' Some service-tenures, however, 
 have existed as such, up to this day, and the creation of 
 such tenures, even in modern days, in India at least, is 
 not very uncommon. 
 
 A»tc p. 87.
 
 JAIGIRS. 245 
 
 During the five hundred and fifty-four years of Jaigirs. 
 
 Mahomedan rule in India, all traces of land-holding for 
 
 military purposes, by means of grants made by Hindu 
 
 kings, must have been obliterated, except in the border 
 
 countries, where Mahomedan influence was least felt, and 
 
 where the necessity of protection from the ravages and 
 
 attacks of wild and hilly tribes kept up the ghatwals and 
 
 tekaits in hereditary succession. Semetic instinct was 
 
 opposed to hereditary possession of land for military 
 
 services and hereditary succession in public offices. Mr. 
 
 Shore, afterwards Lord Teignmouth, after that careful and 
 
 elaborate investigation which was so characteristic of 
 
 that eminent Anglo-Indian statesman, said in his Minute 
 
 dated the 2nd April 1788 : — " In the Moghul Empire, 
 
 there are no hereditary dignities. The rank of the nobles 
 
 was conferred by special appointment for life only, and 
 
 revocable at pleasure, and it was estimated by the 
 
 number of horse they were supposed to command. This 
 
 command was denominated musnud, and a jaigir 
 
 was an appendage to it."^ These jaigirs or military 
 
 fiefs, granted for the support of the dignity of the 
 
 officers and the troops kept up by them, were few in 
 
 Bengal proper, but they were numerous in Behar. At 
 
 the time of the Decennial Settlement many of these 
 
 jaigirdars put forth claims to hereditary title. But such 
 
 claims were against the constitution of the empire. It 
 
 was accordingly declared \\\^\. jaigirs were not heritable 
 
 and permanent properties, and that, upon the demise 
 
 of their present possessors, they should revert to the 
 
 State. This declaration was embodied later on in 
 
 Regulation XXXVII of 1793.' 
 
 But there is a class of service-tenures, partly military Thannadari 
 in ch-iracter, which existed during the days of the Mo- '^n^^s. 
 ghul rule and which survived the revolution brought on 
 by the battle of Plassey — I mean, the tenures granted for 
 
 ' Harrington's Analysis, Vol. III. 361. 
 -' Ante p. 69.
 
 246 
 
 SERVICE TENURES. 
 
 police purposes. The origin of some of these tenures 
 may be traced to the Hindu period. At the time of the 
 grant of the Diwani by the Emperor Shah Alum, many 
 of the zemindars were, within their respective zemin- 
 daries. entrusted with the rights, and charged with 
 the duties, which properly belonged to the Sovereign. 
 They were bound to maintain peace and order and 
 administer justice, and for these purposes they had 
 to retain police forces and to employ judges or 
 quazis. The police was under the control of Than- 
 nadars appointed by the zemindars, and lands were 
 generally appropriated for the maintenance of these 
 officers. 
 
 Village In addition to the police-forces thus kept, there were, 
 
 in every village, watchmen for the protection of the per- 
 son and property of the villagers. These were known 
 as chowkidars, paiks, goraets &c.^ These village- 
 watchmen also were remunerated by appropriation of 
 land, and, it would seem, that this practice had continued 
 from time immemorial. In Bengal proper, these lands 
 are known as chowkidari chakeran lands, and have re- 
 cently been the subject of legislation. - 
 
 Ghatwals. There was a third and a superior class of police 
 
 officers, who protected the districts lying near the hills, 
 which were exposed to the ravages of the lawless tribes 
 who inhabited them, and who asserted a wild indepen- 
 dence from the jungles with which they abounded. To 
 prevent the incursions of these turbulent savages, it 
 was necessary to guard and watch the ghats or the hill- 
 passes through which the marauders used to make their 
 hostile descent on the peaceful inhabitants of the plains. 
 The persons who were employed to protect the arJiats 
 were known as Ghatwals, and the lands held by them 
 were known as Ghatwali lands. The ghatwali tenures 
 
 ' Mhar, Tillari, Paggi, Paik, Pasban, Goraet. 
 
 » /\aVI(BC ^of 1870, as amended by Afts I of 1871, 1886 and 
 1892. See also Reg XX oJ 1817, Sec. 21.
 
 POLICE SERVICE LANDS. ' 247 
 
 play an important part in the liist(3ry of litigation in 
 Bengal. In some of the districts, specially in the Chota 
 Nagpur Division, these ghatvvals are known as Tekaits.'^ 
 
 The chakeran or service lands, held for purposes other Village 
 
 ., ... ,. ii' t. L ^ tr chakeran 
 
 than military or police, are small in extent and not \^^^^ 
 
 of much importance. These are lands held in the 
 so-called village communities, by watchmen and others, 
 or else lands held under private individuals and fami- 
 lies for the performance of services, generally relat- 
 ing to religious worship. Commutation of service into 
 rent has, of late, been very common in the latter class 
 of lands, and, perhaps, in the course of a few years, we 
 shall ceasejto hear of lands held for the performance 
 of services to individuals or families or even deities. 
 In Bengal proper, lands held by officers, except the 
 watchmen in the villages, can now hardly be said to 
 be chakeran lands, for village communities as cor- 
 porations have admittedly ceased to exist. And with \ 
 their decay and dismemberment, and the want of re- 
 cognition of their legal existence by the State, the 
 power of enforcing services, from the holders of service 
 lands, passed away, and is no longer enforceable. 
 The descendants of the original holders now possess 
 these lands without payment of rent or performance 
 of service; and, in most instances, the zemindar 
 or the person who represents him in the collection 
 of rents, is capable of enforcing only occasional 
 service. The chowkidar alone, having to perform a 
 duty, which is necessary for the preservation of life 
 and property, and which is enforced by the Government 
 itself, has survived the ravages of time. 
 
 The few years that followed the Battle of Plassey, Appropria- 
 
 the years of the double government and the uninformed t'O'^o^thanna. 
 ■' _ => dan lands by 
 
 government of the civil officers of the East India Com- Government. 
 
 * Raja Lelanund Sing Bahadoor v. The Government of Bengal, 6 
 M. I. A. loi.
 
 248 SERVICE TENURES. 
 
 pany, have been counted as the most miserable period in 
 the history of the British rule in India. In this transi- 
 tion stage, the state of these Provinces was most 
 deplorable. Famine with its attendant evils, murder 
 and rapine, cast a gloom over the whole country. 
 The Mahomedan nawab was weak, and his police- 
 administration was weaker than ever. The position 
 of the zemindars was uncertain. They had no in- 
 ducement to improve the condition of the people, and 
 were busy with schemes for self-preservation. The 
 freebooters and dacoits became the scourge of the 
 country, whom even the strong hand of Warren Hastings 
 could not sufficiently repress. When Marquis Corn- 
 wallis determined to assess land-revenue, for a period of 
 ten years in the first instance, with a view to the same 
 being made ultimately permanent, and to convert the 
 zemindars into land-owners, it was proposed to make the 
 landholders responsible for the peace of these districts, 
 as they had been under the Mahomedan government. 
 Regulation LXXII of 1791 declared the zemindars res- 
 ponsible for the peace of the country, and the thanna- 
 dars and the cJiowkidars were allowed to remain under 
 their control. But witliin the course of a year, the Go- 
 vernment found that the thannadars and other police 
 officers appointed by the zemindars were very ineffi- 
 cient, and incompetent to repress thugs and dacoits, 
 and it had to appoint its own officers to assist 
 in keeping peace and order. This was extremely in- 
 convenient, and in 1792, Regulations XLIX and L were 
 promulgated, by which the police establishments main- 
 tained by lanfiholders were suppressed, and tin- Govern- 
 ment took upon itself exclusively the duty of preserving 
 peace and preventing crime, by means of a police force 
 of its own. As a necessary consequence, the (jovernment 
 declared its intention of resuming all police-lands and 
 discontinuing any allowances to zemindars for the ex 
 penses of the police establishment. Regulation XLIX
 
 TH\NN.\D\RI LANDS, 249 
 
 of 1792 made provision for the appointment by Govern- 
 ment of police forces, in different stations throughout 
 the Provinces, each under the charge of a Daroga or 
 Superintendent, the Magistrate of the district having 
 the direct control over them. The villasfe chowkidars 
 or watchmen were declared to be subject to the control 
 of the darogas, and they had to apprehend and send 
 offenders, as well as to bring informations to the 
 darogas and not to the zemindars. 
 
 Regulation L of 1792 made provisions for the levying Regulation L 
 of a police tax, and for obtaining information as to °^ '792 
 the nature of allowances made to the zemindars and of 
 the lands held by them for maintaining thannadars and 
 other police officers, and the Magistrates of districts were 
 required to report on these matters. The Regulation 
 and the circulars issued under it referred only to thanna- 
 dars ja^Vid. superior police ofificers, and not to chowkidars 
 or village watchmen.^ 
 
 The enquiries directed to be made by Regulation L Regulation l 
 of 1792 were not completed, when the Decennial Settle- 8, cL 4!' ^^ 
 ment was declared to be permanent. In the amended 
 Code of the Regulations of 1 793, provision had, therefore, 
 to be made for the resumption and assessment of thanna- 
 dari lands. Regulation I of 1793, Section 8, clause 4 
 enacted that the jiunma declared permanent was exclu- 
 sive of, and unconnected with, the lands or allowances for 
 keeping up thannas or police establishments, and that the 
 Governor-Gpneral in Council had the power to resume the 
 whole or any part of such allowances or lands according 
 as he thought proper. The clause further declared that 
 the allowances or the produce of the lands, which might 
 be resumed, would be applied exclusively to the defrayal 
 of the expenst of the police. The atnount that was to be 
 thus collected was not to be added to the permanent 
 j'umma, but was to be assessed and collected separately. 
 
 ' Raja V. Government, 6 M. I. A. loi. 
 F (I)
 
 350 SERVICE TENURES. 
 
 The amounts thus separately collected were known in 
 Bengal as police jumma or simply police^ though they are 
 collected in the same way as land-revenue. 
 Other Police Regulation XXII of 1793 re-enacted, with alterations 
 
 egu a ions. ^^^ amendments, the Police Regulations of 1792, where- 
 by the Government had discharged the landholders from 
 the superintendence of the police establishment. Regula- 
 tion XXIII of 1793 re-enacted the provisions of Regula- 
 tion L of 1792. Provision was made in this Regula 
 tion for the assessment and collection of a police tax 
 by the Collectors of land-revenue, and section 36 of the 
 Regulation provided — '* The Collectors are to report all 
 allowances that may have been made to the proprietors 
 of land for keeping up police-establishments, either by 
 deductions from their jumma, or by permitting them to 
 appropriate the produce of lands for that purpose, or in 
 any other mode, which may not have been already re- 
 sumed, with their opinion how far the whole or any por- 
 tion of such allowances can with equity be resumed, in 
 consequence of the proprietors of land being exonerated 
 from the charge of keeping the peace, as declared in Reg- 
 ulation XXII of 1793." This Regulation was repealed 
 by Regulation VI of 1797, as any further provisions with 
 respect to thannadari lands were considered to be un- 
 necessary. The thannadari lands were by this time con- 
 verted into revenue-paying estates or were amalgamated 
 with estates within which they lay, the additional revenue 
 called Police-tax having been imposed as additional 
 burden upon them. Though some of these lands were 
 formed into estates, subsequent experience has shewn 
 that they have been so intermixed with the lands of parent 
 estates that they are almost incapable of identification. 
 Villngc The next class of police lands were those ap- 
 
 UnX ' '"^' propriated for the maintenance and support of village 
 chowkidars. Previous to the passing of Regula- 
 tions XLIX and L of 1792, the zemindars, having 
 the duty of maintaining peace and order, had to appoint
 
 CHOWKIDARI CHAKERAN LANDS. 2$ I 
 
 not only the thannadars. but also a large number of 
 other officers under the names of chowkidars, pikes, 
 pasbans and goraets, for the maintenance of order 
 in particular villages, for the protection of them- 
 selves and their properties, and also for collecting 
 rents and enforcing services personal to themselves. 
 The village functionaries, including the chowkidar, be- 
 came, to a certain extent, the servants of the zemin- 
 dars, and, though the services of the other village 
 functionaries ceased in course of time, those of the 
 chowkidars could not be dispensed with. The two 
 classes of chowkidars, those appointed by the ze- 
 mindar himself and to whom he granted chakeran lands 
 for service, and those who held lands for generations as 
 village watchmen, became almost undistinguishable in 
 character. They agreed in this, that they had lands 
 known as chakeran lands, that they acted under the orders 
 of the same class of masters, and that they were per- 
 forming the same sort of duties, but they differed 
 materially in origin. Regulation I of 1793 (section 
 8, cl. 4), and the previous Regulations passed before 
 that year did not distinctly refer to chowkidars or 
 villao^e watchmen. Section 41 of Regulation VI 11 of 
 1793 enacted — " The chakeran lands, or lands held by 
 public officers and private servants in lieu of wages, are 
 also not meant to be included in the exception contained 
 in section 36. The whole of these lands, in each prov- 
 ince, are to be annexed to the malguzari lands, 
 and declared responsible for the public revenue assess- 
 ed on the zemindaries, independent taluqs, or other 
 estates in which they are included, in common with 
 all other malguzari lands therein." Section 36 of the 
 Regulation excepted only lakhiraj lands, though thanna- 
 dari lands were also excluded from settlement. 
 
 While the Government made over absolutely, to the Regulation 
 landholders, its supposed proprietary right, in all lands Sec.21' '''' 
 lying within the ambit of an estate, excepting only
 
 252 SERVICE TENURES. 
 
 thannadari and lakhiraj lands, and included chakeran 
 land:5 in the assessment of land revenue, the question 
 necessarily arose, and arose very shortly after the 
 Settlement, as to whether the lands held by village 
 chowkidars were so included within the estate, as 
 to make them the servants of the zemindar, re- 
 movable at his pleasure, or- whether these chowkidars 
 should be under the direct control of the Government and 
 the superior police officers. The distinction between 
 chakeran lands held by public officers and those held by 
 private servants in lieu of wages, was easily lost sight 
 of. The Government, having taken the responsibility 
 of the police administration of the country, was, to a 
 certain extent, entitled to have superintendence over 
 village chowkidars, and rules were passed from time 
 to time for enforcing strict control over them. Regula- 
 tion XX of 1 81 7, which repealed all the previous Police 
 Regulations, enacted — " Darogas of police should pre- 
 serve and keep at the police stations (thannas) a 
 complete register of village watchmen, employed within 
 the limits of the authority of the said darogas/' 
 and these watchmen were declared subject to their 
 orders. The Regulation further enacted—" Upon the 
 death or removal of any of the watchmen, the land- 
 holders and other persons, to whom the right of nomi- 
 nation to such vacancies shall belong, shall send the 
 names of the persons whom they may appoint to the 
 daroga of the jurisdiction, that they may be registered 
 by him as above directed."^ 
 
 In iS^S, the late Babu Joy Kissen Mookherjee, a ze- 
 
 Joy Kissen , ,, . , i-^- • r n 11 • j 
 
 Mookerjee V. mindar of Utterpara, in the District of Hugliiy, raised, 
 
 (^lienor of j I pgfgrence to a piece of land '\x\pufni /aliui Govindapur, 
 
 Burdwan. ' / 
 
 in the District of Rurdwan, an important question as to 
 the relative rights of the State and the Zemindar with 
 respect to chowkidari lands. It was contended on his 
 
 Reg. XX of 1817, Sec. 21.
 
 CHOWKIDARI CHAKERAN LANDS. 
 
 behalf, as he had recently purchased the taluq at a sale 
 under Regulation VIII of 1819, that the land held by the 
 chowkidar was for performance of sqxvxcqs personal to 
 the zemindar, and that the chowkidar was removable at 
 his pleasure. The Collector of the District, on behalf 
 of the Government, contended, on the other hand, that 
 the land was chakeran, reserved for the performance of 
 police orchowkidari duties, and that the zemindar had no 
 power to interfere with the possession of the land, as long 
 as the policemen carried out their various duties. The 
 Collector further contended that chowkidars were not 
 bound to attend to duties personal to the zemindar. Lord 
 Kingsdown, in delivering the judgment of the Judicial 
 Committee, said, " We can find nothing in these Regula- 
 tions (referring to Regulation XX of 1817 and the previ- 
 ous Regulations) which takes from the zemindar the 
 right of nomination of these officers, or which deprives 
 him of the power of himself removing them and ap 
 pointing other fit persons in their stead, and nothing 
 which deprives him of the right of requiring from the 
 chowkidar such services, as he was bound by law or 
 usage to render to the zemindar. It might well hap- 
 pen that, either by long usage or by the original con- 
 tract, when the lands were granted, the village watch- 
 man might become liable, in addition to his police duties, 
 to the performance of other services personal to the 
 zemindar, as the collection of his revenue and the 
 like. Indeed, the rules laid down for the Decennial 
 Settlement appear to us to recognise the interests both 
 of the zemindars and the public in lands of this des- 
 cription. They were not to be included in the malgu- 
 zari lands for the purpose of increasing the jumma, 
 because the zemindars had not the full benefit of them ; 
 but they were to be included in the malguzari lands for 
 the purpose of securing the assessment, because in the 
 event of a sale upon d'-fault of payment of the assess- 
 ment, it would be important that they should be trans- 
 
 *53
 
 254 SERVICE TENURES. 
 
 ferred to the purchasers under the Government, with 
 whom the appointment of the person, whose duty 
 would in part be to attend to public interests, would 
 vest/'^ The lands in suit were not held as thanna- 
 dari lands, in the strict sense of the term, but as chowki- 
 dari lands appropriated to the maintenance of an officer 
 whose duty it was to act as village watchman. It was 
 further held that the chowkidars in the district of 
 Burdwan had always been accustomed to perform services 
 personal to the zemindars as well as to the Police. 
 Their Lordships of the Judicial Committee accordingly 
 held, " that the lands in question were at the time of 
 the Decennial Settlement appropriated, and still are 
 liable, to the maintenance of such an officer, and that the 
 taluqdar has no right to take possession of them for 
 his own purposes, and hold them, discharged of the 
 obligation to which they were subject." The decree 
 passed by Her Majesty declared " that the lands in 
 question were to be considered as appropriated to the 
 maintenance of a chowkidar or village watchman, and 
 that the right of appointing such an officer belonged to 
 the taluqdar, and that such officer was liable to the 
 performance of such services to the taluqdar, as, by 
 usage in the zemindari of Burdwan, chowkidars have 
 been accustomed to render to the zemindar." 
 „ . The case of Joy Kishen Mookerjee versus the Col- 
 
 lector of East Burdwan^ established the following pro- 
 positions and set at rest the disputes arising out of a 
 confusion between the ancient chowkidari chakeran lands 
 and lands granted by the zemindars for the perfor- 
 mance of private duties. In each case, it is now a ques- 
 tion of fact to be decided from the evidence of usage, 
 as to whether the chowkidar is bound to render to the 
 zemindar services other than what are strictly chowki- 
 dari. If the person in occupation of chowkidari lands in 
 
 ' 10 M. I. A. i6, sc, 1 W. R., P. C, 26.
 
 CHOWKIDARl CHAKERAN LANDS. 255 
 
 a village has been accustomed to perform private 
 duties, in addition to his chowkidari duties, he must 
 continue to do so, as if, in the words of section 
 41 of Regulation VIII of 1793, " the chakeran lands" 
 are lands held by a private servant performing both 
 public and private duties. The Government, how- 
 ever, was always unwilling to allow the zemindars 
 the right of enforcing private services from the 
 chowkidars, and in many districts, it has been held 
 that such private duties to the zemindars are not per- 
 formable by village watchmen. But whether the service 
 was strictly police or not, the power of appointment, in 
 cases of vacancy from death, and of removal for negli- 
 gence and misconduct or for inability to perform 
 chowkidari duties of a chowkidar, was always with the 
 landholder. The zemindar had no right to take possession 
 of the chowkidari lands and hold them discharged from 
 the obligation of maintain ing chowkidars. As regards 
 strictly police duties^ the chowkidar was under the 
 superintendence of the higher police officers and the 
 Magistrates of the districts, and in cases of misconduct, 
 such police officers might require the landholder to 
 nominate other chowkidars. 
 
 Chowkidari lands were heritable, only in this incidents of 
 
 sense, that if the son or other heir of the chowkidar chowkidari 
 
 - 1 J • 1 • 1 lands, 
 
 was competent to perform the duties his predecessor 
 
 had been used to do, he was always elected, but it 
 
 is difficult to say whether the zemindar was bound 
 
 to elect him. It would seem, however, from analogy 
 
 to the case of ghatwals, that the succession was 
 
 hereditary, if the heir was competent to perform the 
 
 duties attached to the lands. The lands, however, 
 
 were inalienable and impartible, and the acts of one 
 
 chowkidar with reference to them would not bind 
 
 his successor. They were not saleable in execution 
 
 of decrees. Non-performance of service, or refusal to 
 
 serve, worked forfeiture.
 
 amen 
 Afts 
 
 2e6 SERVICE TENURES. 
 
 .„yj ^j The decision of the Privy Council in Joy Kishen 
 
 1870 and the Mookerjee V. The Collector of East Burdioan was fol- 
 ing lowed, within six years, by the passing of Bengal Act VI 
 
 of 1870 and the amending Act I of 1871. The police 
 administration in most districts in Bengal required 
 strict control and vigilant supervision over village 
 watchmen, and the interference of landholders was a fre- 
 quent source of trouble and consequent maladminis- 
 tration. The Village Chowkidari Act of 1870, ^ after 
 making provisions for the appointment of punchayets, 
 enacted — " All chowkidari chakeran lands assigned 
 for the benefit of any village in which a punchayet 
 shall be appointed, shall be transferred to the zemindar 
 of the estate or tenure in which such lands may be 
 situated."- The assessment was to be fixed at one half 
 of the annual value of the land, and the Collector of the 
 district was, after the approval of the assessment, to 
 transfer such land to the zemindar, subject to the 
 assessment as a permanent charge.^ The assessed 
 amount is realizable under the provisions of the Sale- 
 laws*, and is subject to the same rules as respect 
 the avoidance of encumbrances. The amount thus 
 assessed becomes a part of the police-fund of the 
 locality, the land itself ceasing to be chowkidari land. 
 The appointment and dismissal of chowkidars rest, 
 under the Act, with the punchayet, subject to the 
 sanction of the Magistrate of the district.* Section 
 57 of the Act declared— "That the right to the per- 
 formance of any services to any person by the oc- 
 cupier of chowkidari lands transferred to any zemin- 
 dar shall wholly cease and determine.' The Act 
 has been furiher amended by Acts V of 1871, 1886 
 and 1892. 
 
 « Aa VI ( B.C ) of 1870. • Ihxd, Sec. 48. 
 
 ' Ibid, Sec. 50. 
 
 ♦ Aa XI of 1859, Sec 55, «"d Aa VII ( B.C ) of 1868. 
 
 ' Aa VI C B.C. ) of 1870, Sec. 35.
 
 GHATVVAM TENURKS. 257 
 
 Questions as to whether any and what lands are Commission 
 chowkidari chakeran lands occasionally cause diffi- [prdetermina- 
 
 -^ _ _ tion of chow- 
 
 culties and disputes. The Village Chowkidari Act of kidari chake- 
 1870 made provisions for the appointment of a Commis- '^^" '*" ^' 
 sion in any district or part of a district for the deter- 
 mination of such lands, and every order of the Commis- 
 sioners, made under the provisions of section 6i of the 
 Act, was declared to be final and conclusive, respecting 
 all matters which the Act authorized the Commission to 
 determine/ The words, " final and conclusive," in sec- 
 tion 61 of the Act, are used in their ordinary and literal 
 sense, and where a Commission has been appointed 
 under section 58 of the Act for the purpose therein men- 
 tioned, and the Commissioners have ascertained and 
 determined that certain lands are chowkidari chakeran 
 lands, their decision, in the absence of fraud or non-com- 
 pliance by the Commissioners with the provisions of 
 the Act, is conclusive evidence in any subsequent civil 
 suit, that the lands are what they have found to be.** 
 
 The Village Chowkidari Act of 1870 has not been Regulation 
 extended to all villages in the Bengal Provinces, and Seaion 21. 
 section 21 of Regulation XX of 181 7 is still in force in 
 the villages to which the Act has not been extended.^ 
 
 The servict'S, which the ghatwals were required to Ghatwali 
 perform, have, under the strong hand of British adminis- Tenures, 
 tration, ceased to be of much importance. In many dis- 
 tricts, they may be dispensed with ; in others, the emolu- 
 ments of the ghatwals are, at the present day, dispropor- 
 tionately high. The Government on the one hand, and 
 the zemindar on the other, claimed to take advan 
 tage of the want of necessity of further retaining their 
 services, while the ghatwals themselves claimed to have 
 hereditary title to hold the ghatwali lands, whether their 
 services were required or not. This triangular contest 
 
 ' Aa VI B. C. of 1870, Sees. 58, 60 and 61. 
 
 - Nobokrista v. The Secretary, I L. R. 11 Cal. 632. 
 
 ■' Aa I (B. C.) of 1871, Sec. I 
 
 G(I)
 
 258 SERVICE TENURES. 
 
 was, a few years ago, a source of constant litigation. 
 The Banaili Raj, as owning the large estate known as 
 Kharakpore in Bhagulpore, was tempted or compelled to 
 enter the law-courts as a litigant rather too constantly ; 
 and you will find in the Law Reports a good many con- 
 flicting judgments of the highest court, sometimes of 
 different judges, and sometimes of the same judges in 
 review. But the law as to the rights of the parties has, 
 at last, been settled, partly by the Privy Council, and in 
 some instances, by the good sense of the contending 
 parties, by amicable settlement. The study of this branch 
 of the law is still, however, one of great importance. 
 
 Burdwan. The ghatwali tenures, with which the legal profes- 
 
 sion in this country is most familiar, are those of Bir- 
 bhoom, Bissenpore and Bhagulpore. But almost all the 
 hilly districts in the west of Bengal have police-service 
 tenures which go by that name. In the district of 
 Burdwan, there were ghatwals, whose nominal duty was 
 to protect the hill-passes and travellers. Some of these, 
 though they go by the name of ghatwals, hold their lands 
 rent-free, some pay a quit-rent to Government known 
 as panchaki, while others pay a similar quit-rent to the 
 zemindars. These latter tenures are sometimes called 
 pa7ichaki tenures. 
 
 Chotanagpur. In Chotanagpore, the ghatwali tenures are much 
 
 of the same nature as ghatwali jaigirs in the dis- 
 tricts of Birbhoom and Bhagulpore, where the Govern- 
 ment is interested in the performance of police duties 
 by the ghatwals/ 
 
 Hazaribag. In Hazaribag, there wer? thirty-eight ghatwali 
 
 tenures* and each of these tenures was held by a head- 
 ghatwal called Tikact. They were semi-independent, 
 but paid a small annual sum as rent. Of these thirty- 
 eight, twenty-six have, since 1780, become mukurrari 
 
 ' Hunter's Statistical Account of Bengal, Cliotanagpur, 
 ' Ibid, Hazaribag.
 
 GHATWALI TENURES. 259 
 
 tenure-holders. Ten others also subsequently obtained 
 mukurrari leases. These tikaets have now no services 
 to perform, but are merely holders of permanent tenures. 
 The remaining two tenures were confiscated. 
 
 In the district of Lohardagga, the ghatwals-.hold under Lohardagga. 
 the zemindar of Chotanagpur, and the Government has 
 nothing whatever to do with them. Many of these ghat- 
 wals are holders of hereditary ghatwali lands. It 
 appears that the zemindar has the right of resuming 
 these lands, if the ghatwals do not perform the services 
 required of them. 
 
 A holder of a ghatwali service-tenure, in Manbhoom, Manbhoom. 
 subject to the payment of quit-rent to the zemindar, died, 
 leaving his rent for the last three years unpaid. The 
 zemindar was held not entitled to sue his son and suc- 
 cessor in the tenure for such arrears, as it was a service- 
 tenure, which could not be made liable for the debts of 
 the person, who had ceased to hold the same.' The dis- 
 missal of a ghatwal carries with it the forfeiture of his 
 tenure.'^ The dismissal itself is an executive act of the 
 Government, and the civil courts cannot direct that he 
 should be reinstated. 
 
 In the district of Monghyr, the ghatwalis were origin- Monghyr. 
 ally revenue-free service-tenures granted to petty hill 
 chieftains, and the holders thereof were required to 
 prevent the inroads of hillmen of Ramghurh and 
 Western Santalia. These tenures are now found chiefly 
 in Perganah Chakai. The tenure-holders now pay re- 
 venue after resumption, though they still go by the'name 
 oi ghatwals and tikaets. In Tekaet Doorgapershad Sing 
 v. Tekaetnee Doorga Kooeree^ which was a case of 
 one of these tikaets of Perganah Chakai, the dispute 
 was as to kulachar, and the main question was 
 
 ' Rajah v. Bukro, 10 W. R. 255, (Raja v. Madhab, i B. L R., A. C, 
 
 195). 
 
 « The Secretary v. Poran, I. L. R. 5 Cal. 740. 
 
 s 20 W. R. 154.
 
 26o SERVICE TENURES. 
 
 whether females could succeed, the tenure having 
 originally been ghatvvali. Pontifex J. in delivering 
 the judgment of the High Court at Calcutta said — " It 
 
 would be difficult to hold that a ghatvvali estate must 
 necessarily be held by a male to the exclusion of 
 females." But the property in dispute in that case 
 had long ceased to be a true ghatwali tenure. It was 
 an ordinary revenue-paying estate, and the descent was 
 regulated by the ordinary law of inheritance, and the 
 plaintiff's suit against the female heir of the last male 
 owner was accordingly dismissed.^ 
 Bankura. The ghatwali tenures of Bankura were originally 
 
 jaigirs granted by the Raj of Bissenpore, which was 
 at one time an independent Hindu principality. It 
 is said that the Raj came into existence more than 
 eleven hundred years ago. The conditions, on which 
 the ghatvvali lands were held under the Raj, were 
 that the mountain passes should be protected and 
 the roads kept open for travellers. Some of these 
 ghatwals paid no rent, and others paid a small 
 quit-rent caWtd panchaki. Originally, there were forty- 
 three rent-paying service-tenures, the rent being pay- 
 able to the Raja of Bissenpore. In 1802, these ghatwali 
 tenures were separated from the zemindari, and the 
 ghatwals were placed immediately under the English 
 officer in charge of the district. The ghatwals were 
 placed under direct Government supervision, and the 
 mehals were entered in the District register of es- 
 tates. These ghatwali tenures are neither transfer- 
 able nor heritable,'^ as similar tenures in Bhagul- 
 pore and Birbhoom are. But the male heirs of the 
 ghatwals are appointed to succeed to their posts, unless 
 there are very strong objections to the contrary. "The 
 
 ' 13 W. R. 10. See also 20 W. R. 154. Doorga •y. Doorga, I. L R. 
 4 Cal. 190, sc, \.. R. 5 I. A. 149. 
 
 ' Hunter's Statistical Account of Bengal.
 
 GHATWAl-l TENUkFS. 261 
 
 heir usually gfts a new sannad of office iiand it lie is 
 a minor, a servant or his guardian officiates for 
 him, until he comes of age. Although the ghatvvali 
 lands are not alienable by right, the ghatwals contrive 
 to encumber them by deeds of all descriptions, short 
 of out-and-out sales. They mortgage them and grant 
 mukurrari and mourusi leases, but inasmuch as a 
 ghatwali tenure endures, only so long as the ghatvval 
 personally discharges his functions, such encumbrances 
 are easily avoidable, and are the source of much oppres- 
 sion and fraud/'^ In Harrington's Analysis, published 
 shortly after the promulgation of the Regulation about 
 the Birbhoom ghatwals, the Bissenpur ghatvvali tenures 
 are described to be small, specific portions of land, in 
 different villages, assigned for the maintenance of the 
 ghatwals and their subordinate officers, such as pikes 
 and chowkidars. The distinction between these ghat- 
 wali tenures and the common chowkidari chakerans 
 is thus expressed — ^^ first that these tenures being 
 expressly granted for purposes of police, at a low 
 assessment, which has been allowed for, in adjusting 
 the revenue payable by landholders to Government 
 at the formation of the Permanent Settlement, 
 the land is not liable to resumption, nor the assessment 
 liable to be raised beyond the established rate, at 
 the discretion of the landholders : and secondly that 
 although the grant is not expressly hereditary, and 
 the ghatwal is removable from his office, and the 
 lands attached to it liable to be taken away for mis- 
 conduct, it is the general usage on the death of a 
 ghatwal, who has faithfully executed the trust com- 
 mitted to him, to appoint his son, if competent, or 
 some other fit person in his family to succeed to the 
 office." 2 
 
 ' Hunter's Statistical Account of Bengal, Bankura 
 * Harrington's Analysis, 111-511. Erskine x;. Dwarka, 8 W.R. 2^2; 
 Farquharson v. Government, 8 B. L.R., P. C, 504, sc., 14 M. I. A. 259.
 
 262 SERVICE TENURES. 
 
 Birbhoom. The ^^a/w^// tenures of Surhut and Deoghur, called, 
 
 XXLXor '" Bengal Regulation XXIX of i^i^, 'ghatwalis in the 
 1814. zemindari of Birbhoom' have their main incidents 
 
 defined by that Regulation. Perganah Surhut lies 
 in the north western part of the Birbhoom District, and 
 Deoghur is now a part of the Sonthal Perganahs. These 
 ghatwalis consist of entire villages, and some of them 
 contain extensive tracts of land. The preamble to Reg- 
 ulation XXIX of 1 814, passed for the settlement of these 
 ghatwali mehals, states — '"Every ground exists to believe 
 that according to the former usages and constitution of 
 the country, this class of persons are entitled to hold their 
 lands, generation after generation, in perpetuity, subject 
 nevertheless to the payment of a hxed rent to the zemin- 
 dar of Birbhoom and to the performance of certain duties 
 for the maintenance of tlie public peace and support of 
 the police." The rent payable by the ghatwals io ihe 
 zemindar of Birbhoom is made payable directly to a 
 Government officer, and the amount is credited to the 
 revenue account of the zemindari.'^ The mehals, are 
 saleable for arrears of rent.- But the most important 
 provision in the Regulation is that contained in section 
 2 — " The ghatwals and their descendants in perpetuity 
 shall be maintained in possession of the lands, so 
 long as they shall respectively pay the revenue assessed 
 upon them, and they shall not be liable to any enhance- 
 ment of rent, so long as they shall punctually discharge 
 the same and fulfil the other obligations of their tenures." 
 Though nominally included in the Birbhoom estate, they 
 have no connection with the zemindar, the Government 
 being the sole director. The ghatwali lands are not 
 partible, and not divisible into small ])ortions amongst 
 the heirs of the ghatwals, as the very end for which the 
 grants were made would be defeated by the lands being 
 frittered away into small portions. The tenure usually 
 
 ' Reg. XXIX of 1814, Sees. 3 & 4. " Reg. XXIX of 1814, Sec. 5. 
 ' Heralal v. Jerawan, 6 Sel. Rep. 169, 171.
 
 GHATWALI TENURES. 263 
 
 descends to the eldest son^, and though the estates of 
 these ghatwals are estates of inheritance according to the 
 terms of the Regulation, no ghatwai has the power of 
 alienation, norare^ the lands attachable in execution of 
 a decree for personal debts. The holder of a ghatwali 
 tenure is entitled to the whole income of the estate, and 
 its rents are not liabiej in the hands of the heir in 
 possession, to attachment for the debts of his ancestor 
 or of the deceased holder.- A ghatwai has not ordi- 
 narily the power ^ to grant a lease of the whole or any 
 portion of his ghatwali tenure in perpetuity. He cannot 
 create any encumbrance, so as to bind his successor.^ 
 
 The power to grant leases by holders of ghatwali Aa V of 
 lands in the district of Birbhoom, for terms extending ^ '^' 
 beyond the term of their own possession, is, however, 
 exercisable under certain restrictions contained in Act 
 V of 1859. The development of the mineral resources 
 of the country, discovered only a few years before, 
 the clearance of jungles, and the erection of dwelling 
 houses and manufactories, required that leases for long 
 periods should be granted, and that the Government 
 should be able to give good title to the grantees. It was, 
 accordingly, enacted that the ghatwals should have the 
 power of granting leases for any period, provided how- 
 ever, the Commissioner of the Division approved of the 
 grants and certified the approval by an endorsement on 
 the leases, with his own signature.^ If the ghatwali lands 
 are under the superintendence of the Court of Wards, 
 the Court of Wards or the Commissioner of the Division 
 
 ' Bally V. Ganei, I. L. R. 9 Cal. 388; Kustoora v. Benoderam, 4 
 W. R Misc. 5. 
 
 " Binode v. Deputy, 6 W.R. 129. The same case in review 7 W.R. 
 178 Raja w. Madhab, 1 B.L. R. 195 ; Grant v. Bangsi, 6 B. L. R. 652. 
 
 ' RungUl ;-. Deputy, Marsh 117; Santak i). Vakut, S. D. A. 1853, 
 p. 9000; Deputy V. Runglal, W. R. Sp. Vol. 135. 
 
 * Grant v. Bangsi, 6 B. L. R. 652. 
 
 * Aa V of 1859, Sec I.
 
 264 SERVICK TENURKS. 
 
 lias the power to grant such leases. This Act has finally 
 settled all questions about the right of alienation and 
 creation of encumbrances and under-tenures by the 
 Birbhoom ghatwals. The grants made to persons who 
 have of late erected buildings in and near Deoghur are 
 valid, being under the provisions of Act V of 1859, and 
 approved by the Commissioner of the Division. Leases, 
 not for the special purposes mentioned in the Act, are 
 now no more valid than they were before the passing of 
 the Act. 
 Kharakpore. The ghatwali tenures, in Mehal Kharakpore in 
 
 Bhagulpore, have a history of their own. The tenures in 
 Birbhoom and Bankura came under the direct superinten- 
 dence of the Government in the early part of the British 
 rule, and the Government compelled the tenure-holders to 
 perform the police duties which they had been performing 
 from ancient times. But the Goverment did not find it 
 necessary to exact these services from the Kharakpore 
 ghatwals for a good many years. Their duties had fallen 
 into abeyance, and the Government, acccordingly, 
 determined, in the year 1836, to subject the ghatwali 
 I lands to resumption proceedings under Regulations II 
 of 1819 and 111 of 1828. This was the beginning of 
 a series of cases. In Raja Lilanund Sing Bahadur 
 V. The Government of Bengal^ their Lordships of 
 the Judicial Committee, after reviewing the whole law 
 with reference to thannadari lands and other police- 
 service lands, say, -" They ithe ghatwali tenures) were 
 held by a tenure, created long before the East India Com- 
 pany acquired any dominion over llie country, and though 
 the nature and extent of the right of the ghatwals in the 
 ghatwali vill.i^es may be doulitful, and probably difTered 
 in different districts, there clearly was some ancient law 
 or usage by which these lands were appropriated to reward 
 the services of the ghatwals; services which, although they 
 
 ' 6 M. 1. A. lOi.
 
 GHATWALI XliNUKES. 265 
 
 would include the performance of duties of police, were 
 quite as much in their origin, of a military, as of a civil 
 character, and would require the appointment of a very 
 different class of persons from ordinary police officers. 
 We find accordingly that the office of ghatwal in this 
 zemindari was frequently held by persons of high rank. 
 Lands of this description could not properly be consider- 
 ed as lands of which the zemindars had been, before 
 the year 1792, permitted by the government to ap- 
 propriate the produce to the maintenance of Thanah 
 or police establishments " Their Lordships accordingly 
 held, after reviewing the facts of the particular case, that 
 the ghatwali lands of Kharakpore were a part of the 
 zemindari of Kharakpore and were included within the 
 settlement of that Zemindari. The claim of the Gov- 
 ernment to resume these lands was dismissed. The Gov- 
 ernment, however, was entitled to enforce police duties, 
 though it had not done so for many years, and though 
 the performance of these services was no longer neces- 
 sary. After the decision of the Privy Council in 1855, 
 the Government entered into an arrangement with 
 Raja Lilanand Sing. The ghatwals were absolved from 
 the performance of the services required of them, as in 
 fact such services were unnecessary, and the Government 
 accepted from the Raja the sum of Rs. 10,000 in lieu 
 of these services. The retirement of the Government 
 from the held of litigation limited the contest to the 
 grounds of dispute between the Raja and the ghatwals. 
 
 In the course of litigation between the zemindar Conflia of 
 and the ghatwali tenure-holders of Bhagulpore, it was, authorities, 
 at one time, gravely doubted whether these ghatwalis 
 were ordinarily descendible in the regular line of succes 
 sion. The late Sudder Court^ was inclined to hold that 
 they were not, though the Birbhoom ghatwalis were so, 
 and were declared so to be by the Legislature. It was 
 
 ' S. D. A for 1859, p. 1812. 
 H(I)
 
 266 SHRVICE TENURES. 
 
 also thought that the zemindar had the right to resume 
 the lands, whenever the services were not required. In 
 1857, the Sudder Court stated, " When the service 
 ceases or is no longer required to be performed, the 
 title of the ghatwals ceases also, and the zemindar has 
 the right to resume possession of them." In 1866, a 
 Division Bench of the High Court at Calcutta^ expressed 
 the same opinion, saying that, notwithstanding posses- 
 sion for a long period and payment of quit-rent, a 
 ghatwal, not holding under a sanad conveying a here- 
 ditary indefeasible right, would not be entitled to retain 
 possession, after the performance of the duties imposed 
 upon him was no longer required, as he had been allowed 
 to enjoy the profits of the land in lieu of wages only. 
 The tenures, it was said, lapsed when the services were 
 no longer required and could not be rendered. But 
 in a previous case, another Division Bench of that 
 Court had taken a different view, the learned Judges 
 being of opinion that the ghatwals of Kharakpore held a 
 perpetual hereditary tenure, at a fixed jumma, payable in 
 money and service, and could not be evicted by the 
 zemindar except for misconduct. - 
 Koolodeep Na. The question came before a Full Bench of the High 
 
 Teoli!!lh!''' Court at Calcutta in Koolodeep Narain Singh v. Mahadeo 
 Singh and others,'^ and the learned Chief Justice, Sir 
 Barnes ■ Peacock, in an elaborate judgment, which was 
 affirmed by the Privy Council,^ discussed fully the 
 law as regards service-tenures of the character of the 
 ancient ghatwalis, which had, as held by the Privy 
 Council in the case to which I have already referred, 
 existed from before the Decennial Settlement. These 
 tenures were held to be hereditary from long possession, 
 
 ' Raja V. Surwan, 5 W. R. 292; Raja Neelanund Singh and others 
 V, Nusseeb Singh and others, 6 W. R. 80. 
 
 * Miinninjun v. Rajah, 3 W. R. 84. See also 2 B. I,. R 125, note. 
 ' 6 W. R. 199, sc, B. L. R. Sup. Vol., 559. 
 ' 14. M. I. A. 247, sc, II B. L. R 71.
 
 GHATWALI TENURES. 267 
 
 from their descent from ancestor to heir without objec- 
 tion for several generations, and from the recognition 
 on the part of the legislature of the hereditary nature 
 of similar tenures in Birbhoom, notwithstanding that 
 the sanads did not contain words of inheritance. The 
 Full Bench case and the judgment of the Judicial Com- 
 mittee^ above referred to, further decided that the zemin- 
 dar was incompetent to resume the lands at his 
 option and put an end to the ghatwalis. Neither had 
 the zemindar the power to put an end to the tenures 
 on the ground that the services were no longer required. 
 The learned Chief Justice is reported to have said — 
 " Some cases were cited to show that, even assuming 
 these lands to be subject to a ghatwali tenure, the 
 zemindar has a right, whenever he pleases, to dispense 
 with the ghatwali services and to take back the lands. 
 Now, I must say, that this is the first time I have ever 
 heard such a contention as that a landlord can dispense 
 with the services upon which lands are held, whenever 
 he pleases, and take back the estates. It is not because 
 the services are released or dispensed with, or be- 
 come unnecessary, that the estate can be resumed. 
 If a grantor release the services or a portion of the 
 services, upon which lands are holden, the tenant may 
 hold the land free from the services ; but the landlord 
 cannot put an end to the tenure and resume the lands. 
 Many services, upon which very valuable estates are 
 held, are of little value now. The estates may be very 
 valuable and the services almost valueless. But some 
 large landed proprietors would be somewhat astonished if 
 they were told that the services have been dispensed 
 with, and their estates are liable to be resumed. It 
 might as well be contended that, if lands were granted 
 at a small quit rent, the landlord might relinquish or 
 dispense with the payment of the rent and take back 
 the lands." His lordship added, — " Clearly the zemin- 
 
 ' 6 W- R. 199, sc, 14 M. I. A. 247.
 
 homed Taki. 
 
 268 SERVICE TENURES. 
 
 dar had no right to dispense with those services, which 
 had been reserved by the former Government for the 
 benefit of the public. Suppose the former Government 
 had granted land for services of a religious nature to be 
 performed. The British government would not require 
 those services, but that would be no reason for deter- 
 mining the tenure of the person who held the land upon 
 these services, as long as he is willing to perform them. 
 The tenure is not to be determined merely at the will 
 or caprice of the landlord, when the land has become 
 valuable, probably by the exertions and the expenditure 
 of capital by the tenant." 
 Forbes V. Ma- These principles of universal application enun- 
 
 ciated by the Full Bench of the Calcutta High Court, 
 were affirmed by the Privy Council in the case of 
 Forbes v. Meer Mahomed Taki, decided in 1870.^ 
 That was a case from the District of Purnea, for 
 the resumption, not of ghatwali lands, but of lands 
 granted by a rent-free sanad, in 1775, to keep off wild 
 elephants, and to maintain a body of men for the pur- 
 pose of protecting the raiyats and cultivating the lands. 
 The necessity of supporting a body of men for keep 
 ing off wild elephants having long ceased to exist, the 
 zemindar instituted a suit to resume the lands. The 
 Judicial Committee expressed their concurrence in the 
 principles laid down by Sir Barnes Peacock in Baboo 
 Kooladip Narain Sin^ v. Mohndeo Situ^. The judg- 
 ment in the latter case came up before the Privy Council 
 in the following year (1871) and was affirmed with a 
 remark by their Lordships, that it was entirely con- 
 sistent with the well-recognised principles of justice and 
 equity. The cases of the Kharakpore ghatwals, in which 
 Raja Lilanand Sing was the plaintiff, and which were 
 suits for resumption of ghatwali lands on the ground 
 that the services were no longer required and that 
 
 ' 13 M. 1. A. 438.
 
 GHATWALI TENURES. 269 
 
 the Government had not only dispensed with them, 
 but had itself undertaken to" perform them, receiv- 
 ing from the Raja an additional sum of Rs. 10,000, 
 were heard by the Judicial Committee of the Privy 
 Council in the year 1873. Their Lordships sard, that 
 the sanads, under which the ghatwals held, did not 
 merely give certain lands in lieu of wages to hired 
 servants, but were grants of land upon the condition of 
 certain services. The zemindar had not the power to 
 dismiss them, merely because he did not require 
 their services, but he had the power to dismiss them 
 for incompetence or for not performing the services 
 required of them.^ It is now settled law that neither 
 the Government nor the zemindar has the right to dis- 
 turb these ghatwals in their respective possessions. 
 
 Some expressions in the judgment of the Privy Enhanrcmem 
 Council in Rajah Lilanand Sing Bahadur and others "hatwaH 
 V. Tliakar Monoranjan Sing and others- led to another lands, 
 litigation for the enhancement of rent of certain ghat- 
 wali tenures. The Privy Council, in the case just 
 mentioned, had expressed a doubt as to whether the 
 zemindar was entitled to enhance the rent, supposing 
 the tenures had been created subsequent to the Perma- 
 nent Settlement. All the other Kharakpore ghatwali 
 cases had been compromised. In this case, the High 
 Court at Calcutta held, that the grants had been made, 
 prior to the Decennial Settlement, at fixed rent, and 
 that as long as the ghatwals were able and willing to 
 perform the services for which the grants had been 
 made, the zemindar had no right to enforce payment 
 of enhanced rent, on the ground that the services were 
 no longer required. Neither by the general law, nor 
 by any custom of the district, nor by any terms of the 
 
 ' Kooldeep Narain Singh v. The Government and others, 14 
 M. I. A. 247, sc, II. B. L. R. 71. 
 
 « 13. B L R. 135, sc, L. R. I. A, Sup. Vol., 181.
 
 270 SERVICE TENURES. 
 
 defendant's tenures, could there be any enhancement 
 
 of rent. 
 
 Incidents of Ghatwali tenures in Kharakpore are not transfer- 
 
 ghatwalis in |^jp gi(_her by voluntary sale, or in execution of decrees 
 Knarakpor-'. > ■> ' ' 
 
 against the orhatwals. But if such alienation is assent- 
 ed to by the zemindar, the transferee may have a good 
 title/i The assent of the zemindar may be presumed 
 from circumstances, such as acquiescence for more than 
 twelve years. In this and in other respects, such as 
 impartibility, and the succession of the eldest son to the 
 exclusion of his brothers, the Bhagulpore ghatwalis 
 resemble the ghatwalis of Bissenpur and Birbhoom. 
 Having regard to the origin and nature of the ghatwali 
 tenures, they cannot be governed by the ordinary rules 
 of the Hindu law of inheritance. 
 Apportion- In the case of an apportionment of compensation- 
 
 pensation- money, payable on an acquisition of the ghatwali land 
 money. {qj- public purposes, it has been held that neither the 
 
 zemindar nor the under-tenants of the ghatwal can claim 
 any share, and that the compensation-money carrying 
 with it all the incidents of the original ghatwali tenure, 
 the ghatwal, for the time being, is entitled alone to the 
 interest accruing therefrom during his life-time. This 
 was a Birbhoom case, and the ghatwal was considered to 
 be a life tenant, without power of alienation, and the 
 zemindar was held to have suffered nothing by the ac- 
 quisition.- A different view, however, had been taken 
 in another Birbhoom case, in which the zemindar had 
 been allowed one-fourth of the compensation-money.'^ 
 Village head- After what has been said of the service-tenures 
 
 men &c. created for the performance of police duties, the consid- 
 
 eration of service-tenures of other kinds cannot detain 
 us long. Section 41 of Regulation VIII of 1793 included 
 
 ' Kali V. Anand, I. L. R. 15 Cal. 471. 
 
 « Ram V. Raja, 14 H. I.. I\. App. 7. 
 
 » Bhageeruth v. Rajah, 18 W. R. 91. See R.im v. R.ijah, 23 W. R. 
 
 37^-
 
 VILLAGE FUNCTIONARIES. 271 
 
 these latter tenures In the assessment of estates for 
 the purposes of the Settlement, whether the services 
 were of a public or private nature. The State was in- 
 terested only in the preservation of peace and protec- 
 tion of the life, liberty and property of the subject, and 
 it did not interest itself in the performance of other 
 public duties. The introduction of the zemindar and the 
 vesting of absolute proprietary right in him, in all the 
 villages in his estate, made all services for which lands 
 had been granted or held, other than police services, 
 private^ in the sense that they were to be rendered to 
 the zemindar himself or other landholders and farmers 
 who claimed under assignment from him. The village 
 headman, patel, mokuddum or inandal, became, in 
 many instances, the person chiefly responsible to the 
 zemindar for rents realisable from the raiyats, and he 
 became also their representative in their disputes with 
 the zemindar. The village accountant [karnam or pat- 
 wari) became the servant of the landholder and began 
 to keep the accounts for him. The post of patwari 
 was attempted by various Regulations^ to be kept up 
 by the Government, in the interest of the tenantry, but 
 in Bengal proper, the village pativaris had long ceased 
 to exist as village accountants. In Behar, where they 
 still exist as a class, they have not, in many districts, 
 service-lands, and where they have, they enjoy the 
 lands at the will and pleasure of the landholders, and 
 the Collectors seldom interfere with their work. 
 
 Revenue-free lands, held by Kanungos in the prov- K.inungos. 
 ince of Behar in virtue of their office, were directed 
 to be resumed under Regulation II of 1816, and the 
 office of Kanungo was abolished. In 1825 the Govern- 
 ment directed, by Regulation XIII of that year, that the 
 lands held by Kanungos should be settled at half the 
 rent with their possessors, the Kanungos or their repre- 
 
 ' Reg. VIII of 1793; Reg. XII of 1817; Reg. I of 1819.
 
 272 
 
 SERVICE TENURES. 
 
 sentatives, who were called Kanimgo Minhaidars. The 
 service-tenures held by them have thus ceased to exist. 
 Viiinge The village priests or astrologers and other Brah- 
 
 ijrie->i &c. inins who have or had to perform religious duties for 
 
 village corporations hold lakhiraj lands, and they are 
 now entitled to hold them irrespective of the services 
 for which the lands are supposed to have been origin 
 ally granted. These services are no longer enforceable 
 by process of law. Such is also the case with barbers 
 and other village functionaries. 
 Conclusion. The grant of land, burdened with any service, 
 
 is distinguishable from the grant of an office, the 
 performance of the duties annexed to which are re- 
 munerated by the use of land.^ In the former case, the 
 grant is made to the grantee, upon the condition of 
 his performing certain services as a burden. In the 
 latter case there is no grant of land, properly so called, 
 but the produce of the land is used as wages. A grant of 
 the former kind may be so expressed as to make the 
 continued performance of the service a condition to 
 the continuance of the tenure, so that, the service ceas- 
 ing, the tenure may determine. Again the grants of 
 land, partly as reward for past services and partly for the 
 performance of future service, pro scrvitUs impensis 
 et impendendis, are not uncommon. The instances 
 we have given of ghatwali tenures fall under either the 
 first or the third class ; and whether the services are 
 performable for the benefit of private individuals, or 
 for the public or for both, the services cannot be 
 dispensed with, at the option of the grantor or his 
 heirs. In most cases of grants for private services, made 
 
 ' Koolodeep v Mahadco, 6 W.R. 199 per Jackson J ; Forbes v. Meer, 
 13 M. I A. 43S ; l>ilanand v. Munorunjiin, L. R , I. A., Sup. Vol., 181 ; 
 Savatri t/. AnanHraw, 12 Bom. H. C. Rep. 224; Koval v. Talukdari 
 Settlement OlTicer, I. L. R. 1 liom. 586 ; Naro v. Colleftor, I. L R. 6 
 Bom. 209; Jaj^jivan v. Imdad, 1. L. R. 6 Bom. 211 ; Radha i/. Budhu. 
 1. I.. R. 22Cal. 938
 
 CONCLUSION. J73 
 
 many years ago, written instruments are not available, 
 and occupation of land and performance of services from 
 generation to generation are often the only material 
 from which we have to infer an original grant for parti- 
 cular purposes. The presumption, in such cases, is in 
 favour of the continuity of possession in future, and 
 the grants would naturally be supposed to come under 
 the first or the third head and should not be taken to 
 be grants in lieu of wages for hiring servants. It is to 
 the interest of the receiver of the services to bring the 
 original grant within the second head. The receiver of 
 the services may, in such a case, determine the tenure at 
 any time by notice — the notice being reasonable. ^ The 
 holding of land for service, though the service may be 
 called rent in the broad sense of the word, creates no 
 right of occupancy or any other statutory right recog- 
 nised by the law.- The Bengal Tenancy Act expressly 
 declares — '' Nothing in this Act shall affect any incident 
 of ghatwali or other service tenure, or in particular, 
 shall confer a right to transfer or bequeath a service- 
 tenure, which before the passing of this Act was 
 not capable of being transferred or bequeathed,"* 
 If the services are no longer required or have neces- 
 sarily ceased, the land is resumable at the option of 
 the grantor*, and the grantee has not the law in his 
 side to resist the resumption. The grantee may also, 
 after due notice, surrender the land declining to serve 
 in future. The grantor cannot insist upon the perform- 
 ance of the services ; non-performance of services only 
 works forfeiture. ^ 
 
 ' Lakshmi v. Chandi, I L. R. 8 Mad. 72 ; Radha v. Budhu, I. L. R, 
 22 Cal. 938. 
 
 * Hurrosfobind v. Ramrutno, I. L. R. 4 Cal. 67 
 ' Aa VIII of 1885, Sec. 181. 
 
 * Moharaja v. Siva Narain, W. R , 1864, 324 ; Chandra v. 
 Bhim, W. R., 1864, ( Aa X ) 37. 
 
 ' Hurrogobind v. Ramrutno, I. L. R. 4 Cal. 67. 
 
 I (I)
 
 2 74 SERVICE TENURES, 
 
 Use of land Lands granted in lieu of wages are incapable of 
 
 as wages, being assigned or alienated, the grant being for per- 
 
 sonal services, and assignment being inconsistent with 
 its nature. Vicarious performance may, however, be 
 allowed.^ The beneticial interest of the grantees may, 
 by custom or usage, be alienated or sold in execution of 
 decrees." But the grantor having always the power to 
 put an end to the services, the purchaser or alienee is 
 left to his mercy. When a small rent is reserved, a 
 service-tenure may, however, be sold in execution for 
 its own arrears.* 
 
 ' Shib V. Moorad,9 W. R. 127. 
 
 ' Rajah v. Golamee, 24 W. R. 309. 
 
 ' Rajah v. Kashee, 25 W. R. 206.
 
 LECTURE IX. 
 
 RAIYATS. 
 
 The enquiries made and the discussions evoked on 
 
 M 
 
 arquis 
 
 the proposal to make the Decennial Settlement perma- Cornwallison 
 
 I'll- • /v ^^^ rights of 
 
 nent are highly interesting, and they afford materials the Indian 
 for defining, with sufficient accuracy, the rights and ""^'y^'s- 
 liabilities of ail classes of the Indian people at the time, 
 either as owners or occupiers of land. The interest 
 of the dumb millions who cultivated the land, and whose 
 labour without capital was in truth the proverbial gold 
 of India, was uppermost in the mind of the generous 
 and truly noble Marquis, the Governor-General. His 
 Lordship, while recommending concession of proprietary 
 right to the zemindars^ thus expressed his views in 
 a Minute: — "The privilege which the raiyats in many 
 parts of Bengal enjoy, of holding possession of the 
 spots of land which they cultivate, so long as they pay 
 the revenue assessed upon them, is not by any means 
 incompatible with the proprietary rights of the zemin- 
 dars. Whoever cultivates the land, the zemindar can 
 receive no more than the established rent, which, in 
 most places, is fully equal to what the cultivator can 
 afford to pay. To permit him to dispossess one culti- 
 vator for the sole purpose of giving the land to another, 
 would be vesting him with a power to commit a 
 wanton act of oppression, from which he could derive no 
 benefit."! His Lordship added :— " With the fixity of the 
 demand of the Government a spirit of improvement 
 
 ' Appendix to the Fifth Report, No. 5.
 
 276 
 
 RAIYATS. 
 
 John Shore. 
 
 would be diffused throughout the country and the 
 raiyats would find further security ;" and he hoped that 
 "without any further and detailed rules of law regulating 
 the rights and obligations of the parties, the relations 
 between the zemindars and the actual occupiers of land 
 would be smooth and that things would adjust them- 
 selves as of necessity with the fixity of Government 
 demand." 
 Views of Sir Sir John Shore, with greater experience of Indian 
 
 thoughts and habits, was of a different opinion and he 
 expressed himself strongly against the Governor- 
 General's views. He observed : — " The rules by which 
 the rents are demanded from the raiyats are numerous, 
 arbitrary, and indefinite; that the ollicers of Govern- 
 ment, possessing local control, are imperfectly acquaint- 
 ed with them, whilst their superiors, further removed 
 from the detail, have still less information ; that the rights 
 of the taluqdars dependent on the zemindars, as well as 
 of the raiyats, are imperfectly understood and defined ; 
 that, in common cases, we often want sufficient data 
 and experience, to enable us to decide with justice and 
 policy, upon claims to exemption from taxes ; and that 
 a decision erroneously made may be followed by one 
 or other of these consequences : a diminution of the 
 revenues of Government or a confirmation of oppres- 
 sive exactions. The necessity of some interposition, 
 between the zemindars and their tenants is absolute ; 
 and Government interferes by establishing regulations 
 for the conduct of the zemindars, which they are to 
 execute; and by delegating authority to the Collectors 
 to enforce their execution. If the assessment of the 
 zemindaries were unalterably fixed, and the proprietors 
 were left to make their own arrangements with the 
 raiyats, without any restrictions, injunctions or limi- 
 tations, which indeed is a result of the fundamental 
 principle, the present confusion would never be ad- 
 justed. This interference, though so much modified,
 
 PROCLAMATION OF 1 793. 277 
 
 is in fact an invasion of proprietary right, and an as- 
 sumption of the character of landlord, which belongs 
 to the zemindar ; for it is equally a contradiction in 
 terms, to say that the property in the soil is vested in 
 the zemindar, and that we have a right to regulate the 
 terms by which he is to let his lands to the raiyats, as 
 it is to connect that avowal with discretionary and 
 arbitrary claims. If the land is the zemindar's, it will 
 only be partially his property, whilst we prescribe the 
 quantities which he is to collect, or the mode by which 
 the adjustment of it is to take place between the 
 parties concerned. The most cursory observation 
 shows the situation of things in this country to be 
 singularly confused. The relation of a zemindar to 
 Government, and of a raiyat to a zemindar, is neither 
 that of a proprietor, nor a vassal, but a compound of 
 both. The former performs acts of authority, uncon- 
 nected with proprietary right; the latter has rights, 
 without real property; and property of the one, and 
 rights of the other are in a great measure held at dis- 
 cretion. Such was the system which we found, and 
 which we have been under the necessity of adopting. 
 Much time will, I fear, lapse before we can establish a 
 system, perfectly consistent in all its parts, and before 
 we can reduce the compound relation of a zemindar to 
 Government, and of a raiyat to a zemindar to the 
 simple principles of landlord and tenant." i 
 
 The opinion of the Governor-General, as you have Regulstion 
 already seen, prevailed with the Court of Directors of ^^^•^' 
 
 the East India Company. In the Proclamation announ- 
 cing the Permanent Settlement and in section^ 8 of 
 Regulation I of 1793 which reproduced the words of 
 Art. VII of the Proclamation, the Governor-General in 
 Council declared: "It being the duty of the ruling 
 
 1 Harrington's Analysis, Vol. Ill, p. 397. Appendix to the Fifth 
 Report, No. 6.
 
 2 7^ RAIYATS. 
 
 power to protect all classes of people and more parti- 
 cularly those who, from their situation, are helpless, 
 the Governor General in Council will, whenever he 
 may deem it proper, enact such Regulations as he may 
 think necessary for the protection and welfare of the 
 dependent taluqdars, raiyats and other cultivators of 
 the soil." 
 
 J^,!f"'^/'°" Regulation VIII of 170^ imposed restrictions on the 
 
 VUl of 1793. . * / -/J t 
 
 levying of any new abwab or matliot, i.e illegal cesses, 
 from the raiyats, and laid down that every exaction of 
 this nature should be punished by a penalty equal to 
 three times the amount imposed.^ This Regulation 
 also made provisions for the enforcement of pottas or 
 leases obtained bona-fide from landlord, and directed that 
 they should not be cancelled except upon general 
 measurement of the Perganah for the purpose of equalis- 
 ing and correcting the assessment, or upon proof that 
 the pottas had been obtained in collusion, or that the 
 rents paid within the last three years had been reduced 
 below the rate of the nirikbund of the perganah (per- 
 ganah rate.) 
 English But beyond these vague and general rules, there was 
 
 theory of nothing laid down to regulate the relation between the 
 
 rent. '^ '^ 
 
 zemindar and the raiyat. The adoption of the theory of 
 
 the existence in the Sovereign of proprietary right in 
 land and its transfer to the zemindars, and the strict 
 measures adopted by the Government for the realiza- 
 tion of its own dues, acted most prejudicially on the 
 actual cultivators. The English Governors of the 
 country and the judges who administered the law, being 
 unable to find out any distinct rules for the protection of 
 the interest of the poor tenantry, attempted to introduce, 
 in India, the theory of rent which prevailed in England, 
 — the only theory with which they were familiar. In 
 England customary rent had long been superseded by 
 
 ' Reg. VI 11 of 1793, Sec. 55 and Sec. 60, cl. 2.
 
 THEORY OF RENT. 279 
 
 competition rent. To use the words of a learned author — 
 "From the peculiar course of progress in England, and 
 from that state of affairs under which the absolute 
 ownership of the land was, from the close of the seven- 
 teenth century, in the hands, not of the cultivators, but 
 of a limited class of proprietors, who were all powerful 
 in the Legislature to regulate its measures with a view 
 to their own interests above all others, there has been 
 evolved a theory of Rent, which, although it may be 
 scientifically correct with reference to the peculiar cir- 
 cumstances of England, is not equally correct when 
 applied, and is, in many instances, not at all applicable, 
 to other countries and other communities whose past 
 history and present condition are in many respects, if 
 not altogether, different. The basis of this theory is the 
 application of Capital to land. It postulates the remu- 
 neration of the cultivator at no higher rate than the bare 
 wages of unskilled labour. The Capital employed must 
 yield the ordinary rate of profit, not less than the aver- 
 age rate of profit derived from capital employed in other 
 investments. The labourers who do the work of culti- • 
 vation are paid the ordinary rate of wages, not more 
 than the rate to which an overcrowded labour market 
 renders it possible to reduce them, and this, too, often 
 means but the very barest sustenance. All the profit 
 which the land yields after discharging these two items 
 is Rent."' This theory of rent was practically accepted 
 as law in India by the judges who administered it, 
 until Act X of 1859 was passed. The late Sudder 
 Court, so late as the year 1849, held — " The connection 
 between landlord and tenant in this country commences 
 on a similar understanding, the under-tenant in Bengal, 
 whether holding by a Pottah, or as a tenant-at-will, 
 occupies land with the consent of the Zemindar, and the 
 
 ' Field's Landholding and the Relation of Landlord and Tenant, 
 pp. 41-42.
 
 28o RAIVATS. 
 
 rent, however, determinable is only a consequence of 
 the arrangement." ^ Even after the passing of the Act 
 of 1859, the question as to the principle of the assess- 
 ment of rent, was discussed by able advocates, and Sir 
 Barnes Peacock, the then Chief Justice, referring to the 
 definition of Rent, as given by Malthus in his Principles 
 of Political Economy, applied it, in the well-known 
 case of Ishur Ghosh v. James Hillsr to the state of 
 things in this country. Later on, the learned Chief 
 Justice expressed the same opinion in the case of Tha- 
 kooranee Dossee v. Bisheshur Mukherjee,^ and referred 
 to the case of Queen v. The Grand Junction Railway 
 Co.,* in support of his view of the law. The truth is 
 that as long as the country did not recover from the 
 shocks of tlie deadly visitation of 1770, and as long as 
 land was plenty and raiyats had to be induced to 
 cultivate the land, no question arose, but legislation 
 was urgently needed before the middle of the present 
 century. 
 Distinaion The Regulations of the Bengal Code dealt with only 
 
 between ^Aoc?. (-^^q classes of raiyats, the khodkasf and the paikasL The 
 kVsiMiyiZ. infinite varieties of soil in Bengal and the different uses 
 to which they are put, the variations in value from local 
 circumstances, and the difference in periods of occupa- 
 tions, creating difference in the status of tenants, made the 
 framing of comprehensive rules as to their rights and 
 liabilities almost impracticable. The Hindu system was 
 extremely simple, and not only was it not well-known 
 and well understood at the time of the Permanent 
 Settlement, but it would afford little help to a modern 
 legislator dealing with an extremely complex state of 
 things. The conversion of rent in kind into one in 
 specie was in itself a cause of great complexity. The 
 
 ' Durp Narayan v. Sreemati, S. D., A. ( 1849) 1888. 
 '' W. R., Sp, Vol., p. 48, and on review p. 148. 
 ' B. L. R. (F.B. ) p. 202. 
 « 4 Q. B. p. 18.
 
 KHODKAST. gSi 
 
 sage Manii had to deal with payments by delivery 
 of shares of the actual produce, which varied according 
 to specified circumstances. All that the landlord had 
 in those early days to insist upon was cultivation, which 
 would be beneficial to the king's treasury, to the com- 
 munity, by the clearance of forests, and to the cultivator 
 himself, by affording means of easy livelihood, The 
 sage said — " If land be injured, by the fault of the 
 farmer himself, as if he fails to sow it in proper time, 
 he shall be fined ten times the king's share of the crop 
 that might otherwise have been raised ; but only five 
 times as much, if it was the fault of his servants with- 
 out his knowledge."^ Vyasa also lays down — "If a 
 person after taking a field with the object of cultivating 
 the same fails to do so either himself or through the • .:c? 
 
 agency of others, he should be made to pay to the owner 
 a certain portion of the produce which the field would 
 yield if it were cultivated and a fine to the king equal 
 to that portion." - The fiscal system introduced by 
 the Mahomedan rulers was never fully enforced in Ben- 
 gal and, as we have already seen, Todar MaPs scheme 
 was never completely carried out, and it was also im- 
 practicable to revert to the Hindu system. But further 
 changes were needed with the progress of time and the 
 altered state of things. The Permanent Settlement and 
 the rigidity of the rules for the realisation of Government 
 dues were prolific of consequences which were sufficient 
 to disturb the equilibrium of existing state of things. 
 
 The khodkast raiyat,^ of the Regulation laws, was T\i&khodkast 
 the cultivator who held lands as an agriculturist in the '^'y**^- 
 village in which he had his fixed residence. Authorities 
 of great eminence have differed as to the origin of these 
 raiyats, but the most approved interpretation seems to^ 
 
 » Manu, Ch. VIII 243. 
 •^ Vyasa, quoted in the Vivada-ratnakara. The same direftions have 
 been given by other sages. 
 
 ^ The word khodkast comes from khud^=^ovin and /4asi^=cultivation. 
 
 J (I)
 
 282 RAIYATS. 
 
 be that he was a member of the community composing 
 the group called the village, cultivating the land of the 
 village, having his homestead in it and yielding obedi- 
 ence to the rules and mandates of the body of elders 
 /. e., the village mandals or pradhans. It mattered 
 little whether he was holding for a short period or from 
 time immemorial. The rate of rent payable by him 
 might vary according to the period of occupation. The 
 status was acquired from residence and recognition by 
 the community, and not from length of possession, 
 though length of possession might be an element lead- 
 ing to recognition. He was not necessarily a hereditary 
 cultivator, as he has generally been thought to be.* 
 'X\^& Paikast T\\*i pahikast ov paikast~ raiyat, on the other hand 
 
 raiyats. ^vas a tenant who held land in one village residing in 
 
 ' From Khi'<d=own, and Kdshi=cu\t\v at\on , sometimes erroneously 
 interpreted "cultivating their own land,'' and so leading to the mistaken 
 notion that they had hereditary proprietary rights. — See Elphinstone's 
 History of India, p. 248; Mr. Shore's Minute of i8th June 1789 $ 225 ; 
 Mr. Holt Mackenzie's Minute of ist July 1819, H 328, 399, 431, &c. ; 
 and Carnegy's Land Tenures, p. 40, on this and other points connefted 
 with their status. They are also called chhappcrband raiyats, from 
 which and the antithesis of Paikast, the meaning is plain. At 252 
 and following pages of Selections from the Revenue Records of the 
 North-West Provinces published in 1866, will be found a number of 
 opinions on this point. The best authorities are pretty well agreed that 
 these tenants could not transfer their rights, i.e., sell their land — this 
 privilege belonging to the zemindar class alone. The Khodkast 
 raiyat's interest or the right of occupancy, into which modern legisla- 
 tion has turned it, has of late years become not uncommonly saleable in 
 the Lower Provinces. The Courts indeed hold that it is not saleable 
 as of right, though it may become so by custom. The evidence offered 
 in disputed cases very often consists of instances in which the landlord 
 has brought the raiyats' interests to sale in execution of a decree for 
 rent. This is a mode of obtaining through the intervention of the 
 Courts a fine which goes in payment of the arrears of rent due from the 
 late tenant. That the raiyat's interest finds purchasers is an indication 
 of a change having for its ultimate result the substitution of compcti- 
 tinn ioT customary rents. — Field's Rrc;ulations, Introdudiion, pp. 24-25. 
 ' From ^a/tt = near and ^asi^cultivation.
 
 PAIKAST. 283 
 
 another. He had no political status in the village in 
 which he held the land and was considered to be a 
 foreigner. He generally held lands which the people 
 of the village could not conveniently hold. In the days 
 of zemindars' influence, he might occupy lands as 
 a rival of the permanent or khodkast cultivators. The 
 Regulation laws did not attempt to afford protection 
 to these tenants, though their number must have been 
 very large in 1793. They thus became tenants liable 
 to be ejected at the end of any agricultural year. 
 The determination of tenancy by service of notice 
 to quit was unknown, until very recently; and as a 
 matter of fact, suits for ejectment were unnecessary ; 
 and these poor holders of land were at the mercy of 
 the landlords.^ 
 
 The earlier sale-laws for arrears of Government rev- Proteaion 
 enue following the spirit of the second clause of section eviaion. 
 
 60 of Regulation VIII of 1793 exempted all bonafide en- 
 gagements of khodkast raiyats from liability to cancella- 
 tion on sale for arrears,'* and Regulation VIII of 1819, 
 also laid down in distinct terms the non liability of 
 khodkast raiyats or resident hereditary cultivators from 
 ejectment or cancellation of bonafide engagements 
 made with such tenants by the late incumbent or his 
 representative.^ But paikast raiyats had no protec- 
 tion from eviction until Act X of 1859 made certain 
 necessary provisions as to the status of the vast agri- 
 cultural population of the Bengal Provinces. 
 
 Act X of 1859 practically abolished the distinction AaXof 
 between the status of khodkast and paikast raiyats, a ^^^^' 
 distinction based upon circumstances no longer appli- 
 cable to the altered state of things brought on by peace, 
 
 ' From Pai (Corruption of Pahi from Pah-Pas) near, " living near," 
 " non-resident," and Kast (Cultivation). Field's Regulations, pp. 24-25. 
 » Regulation XI of 1S22 ; Aa XII of 1841 and Aa I of 1845. 
 3 Reg. VIII of 1819, Sec. 11, cl. 3.
 
 2^4 RAIVATS. 
 
 good government and improvements in commerce. 
 The interest of the zemindars and the intermediate 
 landholders would be best served, if the number of pro- 
 tected raiyats was minimised and the number of un- 
 protected raiyats increased ; and every effort was made 
 in this direction. But the Government was bound to 
 afford protection to those, who, though not khodkast^ had 
 long been cultivating the same pieces of land, who got 
 an attachment for them and who improved them by 
 their labour, if not by their capital, as they had none. 
 Legislation was urgently needed. This Act introduced 
 a new classification of the agricultural population of 
 the Bengal Provinces i.e., into three classes — (i) raiyats 
 holding at fixed rent from the time of the Permanent 
 Settlement, (2) raiyats holding lands for periods ex- 
 (ii'.lfi-i.ir-iT ceeding twelve years, whether rent was paid at uniform 
 rate or not, and (3) raiyats holding for periods of 
 less than twelve years, raiyats holding under raiyats 
 of the first two classes and raiyats holding the 
 private lands of the landlord. The khodkast raiyats 
 fell within either the first or the second class in- 
 dicated above, but a few who might acquire such 
 a status in recent years would not get the benefit 
 of it until after the lapse of twelve years, while the 
 paikast raiyats were most of them considerably raised 
 in status. 
 Aa VIII Act X of 1859 was in force throughout the Bengal 
 
 ^iRfio^ ° Provinces and with the modifications made by Act VI 
 
 (B.C.) of 1862 and .\ct VIII (B.C.'i of 1865 continued to 
 be in force until Bengal Act VIII of 1869 was passed. 
 This latter Act was merely, as I have said, a Procedure 
 Act, the substantive law laid down in Act X of 1859 
 having been reproduced almost verbatinu But the 
 .Non-Regulation Provinces and Assam except Sylhet 
 were not affected by it. The Bengal Tenancy Act 
 (VIII of 18.S5), however, made material alterations in 
 the law, especially in favour of the rights of the third 
 
 1869. 
 
 ■ '■;
 
 AT FIXED RATES. 285 
 
 class of raiyats who were overlooked by Act X of 1859. 
 I now propose to deal with raiyats at fixed rates. 
 
 The word raiyat was not defined in Act X of 1859 Definition of 
 and Bengal Act VIII of 1869. The High Court at ^^'^''^• 
 Calcutta, however, had in several cases to define the 
 status of a raiyat and distinguish it from those of 
 a tenure-holder and of a middleman, as the in- 
 cidents of an ordinary raiyati tenure under the law 
 differed in several material respects from those of 
 the other classes of tenants. In Baboo Dhunpiit 
 Singh V. Baboo Gooman Singh^ Seton-Karr and Jack- 
 son, JJ., said : '' It is very difficult to lay down any 
 general interpretation of the word raiyats. As a general 
 rule, they are the cultivating tenants, but they may 
 not be cultivators at all themselves ; they may cultivate 
 their land by hired labour or by under-tenants. In this 
 case, the amount of land included in the tenure is, we 
 think, sufficient evidence that the tenants are not raiyats." 
 It was held that raiyat was not necessarily a cultivator 
 but no middleman could be a raiyat."^ He must hold 
 land under cultivation either by himself or others who 
 must take from him under his supervision as a superior 
 cultivator.^ Mere subletting does not take away the 
 character of a raiyat.* He might not till the soil 
 himself, but still he would be a bonafide raiyat if 
 he derived the profits directly.® The origin of 
 the tenancy and the purposes for which the land was 
 taken regulate to a considerable extent the status of 
 the tenant.^ If the land was taken for the purpose of 
 cultivation and clearance of jungles, notwithstanding 
 that part of the land was cleared and cultivated by 
 the tenant himself and the rest by raiyats settled 
 
 ■ ' W. R., Sp. Vol., Aa X, 61. ^ See Gopee v. Sib, i W. R. 68. 
 
 3 Ram V. Lukhee, i W. R. 71. ' Kalee v. Ram, 9 W. R. 344. 
 
 ^ Kalee v. Ameerooddeen, 9 W. R. 579. 
 " Karoo v. Luchmeeput, 7 W. R. 15 ; Uma v, Umatara, 8 W. R, 181.
 
 286 RAIYATS. 
 
 thereon or the terms of a lease, if any, and, if that is 
 silent, the circumstances attending its grant — these 
 would generally show the original purposes, for which 
 the land was acquired.' The raiyat would not lose 
 his status or become a middleman merely by con- 
 verting the land to a different use sometime after 
 the acquisition.'^ 
 Aft VIII of ^" t'^''^ state of the judicial decisions as to the status 
 
 1885. of a raiyat, the framers of the Bengal Tenancy Act thought 
 
 it proper to classify tenants under three broad heads 
 namely, tenure-holders, raiyats, and under raiyats* 
 and introduced sub-divisions defining the status of each. 
 The case law as to the status of a raiyat was crystallised 
 in the definition given in section 5, sub-section 2 of the 
 Bengal Tenancy Act, which defines a raiyat to be " pri- 
 marily a person who has acquired a right to hold land 
 for the purpose of cultivating it by himself, or by 
 members of his family, or by hired servants, or with 
 the aid of partners, and includes also the succes- 
 sors in interest of persons who have acquired such 
 a right." The explanation to the sub-section adds 
 that the right to bring land under cultivation is to be 
 looked to, notwithstanding the land is used for the pur- 
 pose of gathering the produce of it or of grazing cattle 
 on it. The explanation itself however is not exhaus- 
 tive ; it only illustrates the principle laid down in 
 the cases already cited. Sub-section 4 still further 
 defines a raiyat by laying down that in determin- 
 ing whether a tenant is a tenure-holder or a raiyat, 
 the Court shall have regard to local custom and 
 the purpose for which the right of tenancy was orig- 
 inally acquired. Ordinarily a raiyat or cultivator 
 in Bengal holds no more than a few acres of land, 
 and the Bengal Tenancy Act has, therefore, laid down, 
 
 ' Khujoorunissa v. Ahmed, ti W. R. 88. 
 ■' Aa VIII of 188s, Sec. 4
 
 AT nXED RATES. 287 
 
 as a rebuttable presumption of law, that a tenant holding 
 more than one hundred bighas of the standard measure 
 of land shall be presumed to be a tenure-holder and not 
 a raiyat/ We have now very little difficulty in deter- 
 mining the status of any tenant, a tenure holder or a 
 raiyat. An indigo-planter or a tea-planter holding 
 land for the purpose of causing the cultivation of indi- 
 go or tea, whatever the quantity of land may be, is a 
 raiyat. A partner of an indigo concern is as much in 
 the eye of law a person capable of enjoying the statu- 
 tory rights in land as any other individual.^ 
 
 The superior class of raiyats are those who have Raiyats hold, 
 held land from the date of the Permanent Settlement 'u^ ^^ T*, 
 
 changed rate 
 
 of 1793, at an unchanged rate of rent. The several of rent. 
 Rent Acts have given them a status of permanency, 
 fixity of rent, heritability and transferability, and as 
 it is difficult to give direct evidence of the existence of 
 the holding and uniform payment of rent since 1793, the 
 Legislature has provided for a rebuttable presumption 
 arising from proof of occupation and uniform payment 
 of rent for twenty years next preceding the institution 
 of the suit.^ With respect to succession and transfer 
 either inter vivos or by will, the incidents of these hold- 
 ings agree with those of permanent tenures, existing 
 from the date of the Permanent Settlement.* Sales 
 for arrears of revenue or rent cannot affect them. 
 Section 37 of Act XI of 1859 expressly provides that 
 the purchaser of an entire estate, notwithstanding his 
 power to avoid and annul all under-tenures and eject 
 all undertenants, is not entitled to " eject any raiyat 
 
 ' Aa VIII of 1885, Sec. s, Sub-sec. 5. 
 
 • Laidley v. Gour, I. L. R. 11 Cal. 501. But see Cannan v. Kylash, 
 25 W. R. 117 ; Raikomul v. Laidley, I. L. R. 4 Cal. 957. 
 
 ' Aa X of 1859, Sec. 3 ; Aa VIII ( B. C. ) of 1869, Sec. 3, and Aft 
 VIII of 1885, Sec. 18. 
 
 ' Aa X of 1859, Sec 4; Act VIII ( B C. ) of 1869, Sec. 4 and Aa 
 VIII of 1885, Sec. 50.
 
 288 RAIYATS. 
 
 having a right of occupancy at a fixed rent or at a rent 
 assessable according to fixed rules under the laws in 
 force." Regulation VIII of 1819 (Section it, cl. 3) 
 and the various Rent Acts also lay down that a pur- 
 chaser at a sale under that Regulation shall not be 
 entitled " to eject any khodkast raiyat or resident here 
 ditary cultivator." The Bengal Tenancy Act calls 
 the interest of such raiyats " protected" ;^ and under 
 no circumstances except on the breach of an express 
 covenant can such raiyats be ejected.'* But in one res- 
 pect they have superiority to permanent tenures, 
 namely, persons holding lands under the holders of such 
 lands cannot acquire rights of occupancy \ they are 
 merely under-raiyatsr' 
 
 Ejeamentof Ejectment of permanent raiyats is almost unknown. 
 
 permanent Their right is statutory, and, seldom if ever, they hold 
 under written leases. The conditions of holding land 
 are simple in their character and breach thereof can 
 rarely occur. Any express condition for ejectment on 
 breach of a covenant, if there be a written lease, must 
 always be consistent with the provisions of the law 
 relating to landlord and tenant.* If there be no written 
 contract, there can be little likelihood of the existence 
 of any express condition for re-entry on a breach of 
 covenant ; at all events such covenants are very diflficult 
 to prove. Further the covenants must be consistent 
 with the provisions of tlvj Bengal Tenancy Act. if 
 the contract of lease be one entered into after the 
 passing of that Act. Suits on the ground of breach 
 of contract under the Bengal Tenancy Act must be 
 brought within one year of the breach.* Under the 
 old Acts, such suits could be brought within twelve years 
 of the breach. 
 
 ' Aft Vlil of 1885, Sec. 160. • Ibid, Sec. 18. 
 
 ' Ibid, Sec. 4. ' Ibid, Sec. 18. 
 
 » /A«<i, Sch. Ill, Art I.
 
 AT FIXED RATE, 28g 
 
 Who are tenants at fixed rates of rent ? The Raiyats at 
 words "at fixed rates of rent" used in section 3 of ^^^^^ ra e o 
 the older acts and the words, " rent, or rate of rent, 
 fixed in perpetuity" used in section 18 of Act VIII of 
 1885 mean substantially the same thing. In Thakooranee 
 Dossee v. Bisheshiir Mookerjee^, Peacock, C. J., said^-; 
 " By the term, fixed rates of rent, I understand not 
 merely fixed and definite sums payable as rent, but also . 
 rates regulated by certain fixed principles— ^such, for in- 
 stance, as a certain proportion of the gross or of the 
 net produce of every bigha, or such a sum of money as 
 would be equal to such a proportion of the produce, or 
 such a sum as would give to the raiyat any fixed rate 
 of profit after payment of all expenses of cultivation. 
 Id certum est quod certum rcddi potest is a maxim of 
 law." This wide interpretation of the words of the 
 law, including, as it does, the cases of payment of rent 
 by fixed shares of the gross produce, such as a half, or by 
 hhaoli ox battai, ^^s followed in some cases.* But in 
 Mahomed Yacoob H ossein v. Sheik Chowdhry Wahed 
 Ali^ Trevor and E. Jackson, JJ, held " that no rate 
 of bhaoli rent varying yearly in amount with the 
 varying amount of the gross produce of the land, 
 thoueh fixed as to the proportion which it is to 
 bear to such produce, is a fixed unchangeable rent 
 of the nature alluded to in section 4 of Act X 
 of 1859." Bayley, J., dissented from Trevor and 
 Jackson, JJ., and was of opinion " that a contract 
 to pay half in kind did not involve a varying 
 rate."*' Thus the weight of authority seems to be 
 
 ' B. L. R., F. B., 326, sc, 3. W. R. ( Aa X ) 29. 
 
 « Mitrajit 7;. Baboo Tundan, 3 B. L. R. App. 88,5c., I2 W. R., 14; 
 Ram V. Baboo Latchmi, 6 B. L. R. App. 25, sc, 14 W. R. 388 ; Jutto v. 
 Mussamut Basmuttee. 15 W. R. 479 ; Haauman v. Kaulesar, I. L. R. 
 1 All. 301. 
 
 » 4 W. R., Aa X, 23, sc; I Ind Jur. 29. 
 
 * See also Thakoor 7/. Nowab, 8 W. R. 170 ; Hanuman v. Ramjug, 
 H.C.R., N.W.P. V i874)'37>- 
 K (I)
 
 2 go RAIYATS. 
 
 in favour of the views expressed by the late 
 Chief Justice. There cannot be any reasonable 
 doubt that no court ought to allow the landlord to 
 enhance the rate of reiU of a tenant paying a fixed 
 share of the produce from the time of the Permanent 
 Settlement. If a raiyat has been paying a half of the 
 gross produce of his land as rent since the Permanent 
 Settlement, he cannot be called upon to pay a higher 
 share of the produce, e.g., a five-eighths or even nine- 
 sixteenths, notwithstanding that he is an ordinary occu- 
 pancy raiyat. No principle except that of competition- 
 rent, can be Invoked to entitle the landlord to demand 
 a higher share ol the produce. Notwithstanding that 
 such tenants should have the status of permanency both 
 as to time and rate of rent, it has been doubted whether 
 their holdings have all the incidents of permanent 
 raiyati ones. The question is one of great difficulty, as, 
 in practice, the holders of such bhaoli ox bhagdari hold- 
 ings are considered to be much inferior in position to 
 those paying uniform money-rent from the time of the 
 Permanent Settlement. The Select Committee dealing 
 with the bill about Bengal Tenancies took the view en- 
 tertained by Trevor and E. Jackson, JJ., in Mahomed 
 Yacoob Hossien v. Sheik Chowdhry Wahed A/i.^ One of 
 the rules for the intrepretation of statutes is that the 
 judges in interpreting and administering law should not 
 have recourse to the discussions in the Legislative Council 
 or the statement of the object and reasons of an Act 
 of Legislature."^ But we may refer to the observa- 
 tions of the Select Committee to discover the true in- 
 tention of the framers of sections i8 and 50 of Act VIII 
 of 1885. 
 
 Changes in rent or rate of rent, sufficient to take 
 
 ' 4 W. R. ( Aa X ) 23. 
 
 '' Afiministrator v Promlal, I. I,. R 22 Cal 788. Sec Maxwell on the 
 Interpretation of Statutes, pp. 33 & 34.
 
 AT FIXED RATE. 29 I 
 
 away permanency, must be substantial. Change from Change of 
 Sicca Rupees into Company's Rupees (in accordance to ''^"*- 
 the provisions of Act XIII of 1836) is not an alteration 
 of rent — it is merely a difference in currency.^ Slight 
 and occasional differences in rent hive been ascribed to 
 inadvertence or mistake and not to intentional variation 
 such as to prevent the operation of the statute.- The 
 payment of abwzbs or illegil cesses to the landlord are 
 payments in addition to rent and cannot be construed 
 into a variation of it^ Abwabs are levied and paid 
 with the express object of keeping the jumma intact. 
 Abatement of rent on the ground of diluvion, the rate of 
 rent remaining the same throughout, falls within the 
 words of the Act and entitles the tenant to plead uni- 
 formity of the rate.* 
 
 In order to give the status of complete permanency. Permanent 
 
 1 • 1 , r- ■s , ^\ r^ Settlement. 
 
 the raiyat must have paid at a hxed rate since the Per- 
 manent Settlement. The Bengal Tenancy Act defines 
 Permanent Settlement to mean "the Permanent Settle- 
 ment of Bengal, Behar and Orissa made in the year 
 1 793." 5 In the old Rent Acts, the words were not 
 defined, but they evidently meant that well-known 
 
 date.' 
 
 The presumption of fixity of rent, arising from uni- Presumption, 
 form payment for twenty years, is the same as that in 
 the case of intermediate tenure-holders.^ The plead- 
 
 ' K>ilee V. Shoshee, i W. R. 24.S ; Kittyani v. Soonduree, 2 W. R. 
 ( Aa X ) 60 ; Tara v. Shibeshur, 6 W. R. ( Aa X ) 51 ; Watson v. Nund, 
 21 W. R. 420. 
 
 * Baboo Huro v. Ameer, 1 W R. 230; Ramrutno v. Chunder, 2 W. 
 R (Aa X) 74; Anund v. James Hills, 4 W. R. ( Aa X ) 33 ; 
 Munsoor v. Bunoo, 7. W. R. 282; Elahee v. Roopun, 7 W.R. 284 ; 
 Watson V. Nund, 2i W. R. 420, 
 
 » Sumeer v. Huro, 2 W. R. ( Aa X) 93. 
 
 * Radha r. Kyamutoollah, 21 W. R. 401- 
 
 * Aa VIII of 1885, Sec. 3, cl. 12. 
 
 « Sheoburn v. Ram, 3 W. R. ( Aa X ) 20. 
 ' Ante pp. 174-S
 
 292 
 
 RAIYATS. 
 
 How re- 
 butted. 
 
 ings must sufficiently raise the question, and the proof of 
 payment must be strict. But alterations arising from 
 division' or consolidation'* of holdings, or on taking 
 away a part of the land^, would not deprive the tenant 
 of the right conferred on him by the Legislature. 
 
 The presumption may be rebutted by proof of sub- 
 stantial variation of rent at any time before twenty years, 
 or by proof of the tenancy having originated subsequent 
 to the Permanent Settlement.* A break in the holding 
 also rebuts the presumption, but not if the tenant be 
 illegally evicted.* In Lutteefunnissa Behee v. Poolin 
 Beharee Sein^, the High Court remarked :—" Eviction, 
 though it would put an end to the raiyat's possession, 
 would not destroy his holding, if that holding would not 
 have ceased to exist but for the eviction."' Eviction 
 Sj'v'j ^y the landlord, even if partial, causes suspension of 
 
 rent^, and even if the tenant did not pay rent during 
 the period of dispossession, he would be entitled to 
 count the period and the landlord would not be entitled 
 to plead non-payment of rent as a bar to the presump- 
 tion of the continuity of the tenancy. 
 Alteration of Notwithstanding fixity, the rent of a raiyat holding at 
 
 rent on alter- ^f^xed rate of rent may be enhanced on the ground of in- 
 ationof area. , ,.,,,. , itui. 
 
 creasein area of the holding; there may also be abate- 
 ment for decrease in area. Alteration of rent on altera- 
 
 ' Aa VIII of 18S5, Sec. 50, Sub-sec. 3 ; James Hills v. Besharuth, I ' 
 W. R. 10 ; James Hills v. Huro, 3 W. R. ( Aa X ) 135. 
 
 « Sukhi V. Gun?a, W. R , Sp. Vol , ( Aa X ) 126 ; Razees. Nubo, S 
 W. R. ( Aa X ) 53 ; Raj v. Huree, 10 W. R 1 17 ; Kashee v. Rama, lO 
 W.R. 429 ' 
 
 ' Kena v. Ram, 2 W. R. ( Art X ) 17 ; Soodha v. Ram, 20 W. R. 4«9. 
 See also Aa VIII of 1885, Sec. 88. 
 ♦ Aa X of 1859, Sec. 4. 
 
 » Lutteefun v Baboo Poolin, W.R Sp. Vol 91. 
 
 " W. R., Sp. Vol., 91. ' 
 
 ' See also Mahomed v. Noor, 24 W. R. 324 : Radha v. Rakhal, 1. L. 
 R. 12 Cal. 82. ! 
 
 ' Ant» p 217.
 
 AT FIXED RATE. 293 
 
 tion of area is provided for in section 52 of the Bengal 
 Tenancy Act, — additional rent for land found by measure- 
 ment to be in excess of the area for which rent has been 
 previously paid, and reduction of rent for deficiency in the 
 area. Sections 17 and 18 of Act X of 1859 correspond- 
 ing with sections 18 and 19 of the Bengal Act VIII of 
 1869 made provisions for enhancement or abatement of • 
 the rent of raiyats having right of occupancy. The 
 Bengal Tenancy Act deals with all classes of raiyats. 
 The rate of rent being once determined, the area can 
 be found out easily by measurement. 
 
 The area of the holding of a permanent raiyat may Accretion, 
 increase by accretion, or by the tenant encroaching on 
 the adjoining land of his landlord or the adjoining land 
 belonging to a third person. It may decrease by dilu- 
 vion or encroachment by a neighbouring holder. Cases 
 of increase or decrease in area by alluvion or diluvion 
 were formerly dealt with under the Bengal Regulation 
 XI of 1825, Sec. 4, cl. I, and in the absence of express 
 rules,^ the principles of equity and good conscience 
 were applied. Section 52 of Act VIII of 1885, has now 
 laid down detailed rules on the subject. 
 
 Encroachment on the adjoining land belonging to the Encroach- 
 
 1 ji J J . 1 ii i^ j^ ^ -i.! ment on land. 
 
 -landlord does not make the tenant a trespasser with res- lord's land, 
 pect to such land, and the tenant cannot set up an ad- 
 verse right with respect to it against the landlord." In 
 Rashum v. Bissonath^ Peacock, C. J., held that no suit 
 for enhancement could lie with respect to such lands, and 
 the raiyat must be treated as a trespasser. In Decourcy 
 V. Meghnath^^ Mitter, J., held that the raiyat could not be 
 ^ued for enhancement for the excess land thus brought 
 under his possession. This view, however, is not in 
 
 ' Zuheeroodeen v. Campbell, 4 \V R 57. 
 
 • Ante p. 221. 
 
 ' 6 W. R. (AaX)57. 
 
 ■* 15 W. R. 157. See also Prankissen v. Monmohtnee, 17 W.R. 33.
 
 294 RAIYATS. 
 
 accordance with the English law, and the weight of 
 Indian authorities is in favour of the proposition that 
 the landlord is entitled to treat the encroachment either 
 as a trespass and sue for khas possession, or he may treat 
 the raiyat as a tenant with respect to the encroachment, 
 and demand additional rent.^ In Gooroo Doss Roy v. 
 Issur Chunder Bose, Markby, J., said. — " We think the 
 true presumption as to encroachments made by a tenant 
 during his tenancy upon the adjoining lands of his land- 
 lord is that the lands so encroached upon are added to 
 the tenure and form part thereof for the benefit of the 
 tenant so long as the original holding continues, and 
 afterwards for the benefit of his landlord, unless it 
 clearly appeared by some act done at the time that the 
 tenant made the encroachment for his own benefit. 
 This is the clear rule of English law, and it is a rule 
 which is supported by reason and principle. In India, 
 where there is a great deal of waste land, and where 
 quantities and boundaries are very often ill-defined, 
 there are very strong reasons for the application of 
 such a rule. And the principle upon which the rule is 
 founded is one of general application, namely, that if an 
 act is capable of being treated as either rightful or 
 wrongful, it shall be treated as rightful. Now in the 
 case put, the act of the tenant in taking possession of more 
 land than was let to him, though it may possibly have 
 been a trespass and wrongful, may in most cases equal- 
 ly well have been done with the assent, express or 
 implied, of the landlord, and so have been rightful, and 
 in the absence of any proof to the contrary, it is treated 
 as the latter. We know of no case in which the prin- 
 ciple has been expressly recognized by judicial decision 
 
 ' David V Ram, 6 W. R. ( Aft X ) 97 ; Rij v. Gooroo, 6 W R. ( Aft X ) 
 106; Sham V. Doorga, 7 W. R. 122; Golam v. Baboo Gopal, 9 W. R. 
 65 ; Nuddyart.. Mcajan, I. L. R. 10 Cal. 820; Art VIII of 1885, Sec. 
 157. See also Shaikh v. Mussamut, 15 W. R. 91 ; Binode v. Masseyic, 15 
 W. R. 493
 
 AT FIXED RATE. 295 
 
 in India, but it is in accordance with the principle laid 
 down by section 4 of Regulation XI of 1825 as to the 
 increase of land by alluvion. In practice also en- 
 croachments made by the tenant are not considered as 
 held by him absolutely for his own benefit against his 
 landlord. If it were so, the tenant would in twelve 
 years necessarily gain an absolute title under the 
 statute of limitations ; but we do not know of any case 
 in which a title has been thus established.'" 
 
 With respect to encroachments made upon the land Encroach- 
 of a third person by a tenant, he is considered to have ^ra"n?er"'s 
 made the encroachment, not for his own benefit, but that land. 
 of his landlord, and a title acquired by the tenant by 
 adverse possession against such third person inures 
 to the benefit of the landlord. The tenant cannot 
 treat the land as his own apart from the holding.* It 
 would seem that a suit for additional rent would lie for 
 excess land thus brought into the raiyat's occupation.' 
 
 Decrease in area due to diluvion has always been Diluvion. 
 held to be a good ground for abatement of rent.* It 
 would be inequitable and unjust to make the raiyat pay 
 rent for the land which is lost by the action of a river. 
 Abatement was also allowed for land taken for public 
 purposes.' 
 
 Decrease of area on encroachment or dispossession Disposses- 
 by a title paramount always entitles the tenant to an ^'°"" 
 abatement of rent pro tanto, but if a person without 
 title dispossesses the tenant, it is the tenant's duty to 
 
 ' 22 W. R. 246. 
 
 * Nuddyar v, Meajan, I. L. R. 10 Cal. 820. 
 ' Ante p. 222. 
 
 " Afsurooddeen v. Shorashi, Marsh 558; Kristo -v. Koomar Chunder, 
 15 W. R. 230. 
 
 * Mohesh v. Gunga, 2 Hay 495,- Gordon v. Moharaja, Ibid. 565 ; 
 Prosuno v. Soondur, 2 W R. ( Aa X ) 30 ; Maharajah v. Chittro, 16 
 W. R. 201 ; Deen v. Mussamut Thukroo, 6. W. R. ( Aft X ) 24 ; Watson 
 T', Nislarini, I. L. R. lO Cal. 544.
 
 296 
 
 RAIYATS. 
 
 protect himself. It would seem that no abatement could ^ 
 be allowed in such a case/ 
 Registration Registration of transfers and successions was not 
 
 of transfers compulsory under the old laws, and section 27 of Act 
 ^'^ X of 1859 and section 26 of Act VIII (B. C.) of 1869 
 
 did not apply to these raiyati holdings. The interest of : 
 these raiyats is not " intermediate between the zemin- 
 dar and the cultivator." So that no such raiyati hold- 
 ing would pass to an auction-purchaser on sale for 
 arrears of rent merely because the decree is against the 
 registered tenant. Section 18 of the Bengal Tenancy 
 Act lays down that such a raiyat shall be " subject 
 to the same provisions with respect to the transfer of, 
 and succession to, to his holding, as the holder of a 
 permanent tenure." This seems to imply that thCj 
 provisions of sections 12, 13, 14, 15 and 16 of the Act, 
 apply to these holdings. 
 
 A raivat though settled later than the Permanent 
 
 Fixity by -^ ' . j c -^ c ^ 
 
 contraa. Settlement, may acquire permanency and hxity of rent 
 
 by contract with the landlord, subject to the provisions 
 of the law. The incidents are regulated by the con- 
 tract. The protection, which the sale-laws for arrears of 
 revenue and rent afford to a raiyat who has acquired 
 a statutory right, is not available to the fullest extent to 
 a raiyat who holds under a contract of fixity ; but he 
 acquires as against the purchaser on such a sale, the 
 right of occupancy or the right of a non-occupancy 
 raiyat, as the case may be, which the statutes afford to 
 raiyats occupying and paying rent, and he cannot be 
 ejected. 
 
 ' Tripp V. Kaleedoss. W. R , Sp. Vol., ( Aft X ) 122 ; Chand v. Loke- 
 nath, 6 C. L. R. 494-
 
 LECTURE X. 
 RAIYATS 
 
 ( OCCUPANCY AND NON-OCCUPANCY ). 
 
 Section 6 of Act X of 1859' laid down— "Every status f 
 raiyat, who shall have cultivated or held land for a occupancy, 
 period of twelve years, shall have a right of occupancy 
 in the land so cultivated or held by him, -^ -x- -Jf -sf 
 so long as he pays the rent payable on account of the 
 same." There were certain exceptions to this rule, to 
 which I shall presently draw your attention. The ex- 
 pression ' right of occupancy' was used for the first 
 time by the Legislature in 1859, ^^^ instead of the 
 classification of raiyats into the khodkast and the 
 patkast, a new one was introduced, less complex in 
 character and with incidents more favourable to the 
 cultivating classes. Possession and cultivation of land 
 and payment of rent were all that were necessary to 
 confer on the raiyat this right of occupancy. Resi- 
 dence in the village in which he held land or his 
 recognition as a member of the so-called political unit — 
 the village community, would not improve or affect 
 this statutory right in relation to the landholder, except 
 perhaps in matters of enhancement or abatement of 
 rent. A non-resident raiyat or an alien to the com- 
 munity of the village might thus have, in the eye of the 
 law as laid down in 1859, almost the same privileges 
 and immunities as the khodkast raiyats. He might still 
 be 2i. paikast raiyat, but if he could fulfil the conditions 
 
 ' See also Aa VIII (B. C.) of 1869, Sec. 6. 
 
 L (i)
 
 xgS V RAIYATS. 
 
 laid down in section 6 of the Act, he would cease to be 
 a tenant holding land at the pleasure of the landlord, 
 liable to be ejected at the end of any agricultural year, 
 and he would not be bound to pay rc-nt at the rate which 
 the landlord might dictate. The same levelling hand of 
 the Legislature that had brought down at the Permanent 
 Settlement the ancient rajas, and had elevated the 
 farmers of revenue to the position of zemindars, created, 
 in the year 1859, a right for the mass of the agricultural 
 population, which raised them from the position to which 
 they had been reduced on account of the want of 
 any definite rules for the guidance of Courts of 
 justice and the consequent introduction of rules of 
 law with which English lawyers were familiar. On the 
 other hand, many raiyats who could be called khodkast 
 were deprived of some of tlieir privileges. 
 Settled The Bengal Tenancy Act of 1885 has made no 
 
 raiyats. material alteration in the law as laid down in section 6 
 
 of Act X of 1859. It has, however, partially revived and 
 brought under definite rules the rights of khodkast 
 raiyats. The " settled raiyat,'" has enlarged means 
 of acquiring occupancy-right, while at the same time 
 there has been a curtailment in cases of holdings in churs 
 or dearah lands and lands hel 1 under tht^ ttidandi system.'^ 
 Incidents of The privileges attached to this ' riL;ht of occupancy' 
 
 occupancy ^^^ considerably inferior to tho^e of owners of property.' 
 right. ■' . . 
 
 It is heritable, according to the ordinary rules of inherit- 
 ance to which the raiyat is subject, — Hindu, or Mahome- 
 dan or any other personal I ivv, as the case may be. But 
 Devolunon jp default of heirs tin* right is (extinguished, and the land- 
 lord is then entitled to possession and to settle the land 
 with other raiyats.* The crown is not the ultimate 
 heir and cannot claim to have possession of the land as 
 
 * Aft VIII of 1885. .S.T. 20 ^ AaVlii u( 18S5, Sec. 180. 
 
 ' Ish.ir ;• Hills, W. R . Spl. Vol , 148; Bibet- v. Maxwell, 20 W. R. 
 139; l.al 7. I)(,-u, I. I,. R. 3 Cal. 781. 
 
 ' Aa VIII ijf 1885, Sec. 26. Seejateeram v. Mungloo, 8 W. R. 60. 
 
 on death.
 
 bility. 
 
 INCIDENTS OF OCCUPANCY RIGHT. 299 
 
 the ultimate heir of the deceased holder of a right of 
 occupancy. Ordin irily t'le right is not capable of being 
 bequeathed by will, but local usage or custom may give 
 the raiyat the power to do so.^ 
 
 This right acquired by a raiyat, in so far as it is Transfera- 
 merely statutory, is not transferable.'^ The raiyat 
 cannot transfer it by mortgage, sale, gift, or exchange, ^ 
 nor is the right saleable in execution of a decree* for 
 money against him. The transferee acquires no title 
 by the transfer,^ and if he succeeds in obtaining pos- 
 session, he is liable to be evicted as a trespasser'^ by the 
 landlord, who is not bound to recognise him" as his 
 tenant. On assignment by the voluntary action of the 
 raiyat, he is considered to have abandoned the land** 
 and forfeited his right, the landlord being entitled to 
 immediate possession.^ But custom or local usage may 
 make the right transferable,^ ° and when it is so, the 
 transfer may take place by the voluntary action of the 
 
 ' AflVlIIof 1885, Sec 178, Sub Sec. (3), cl (d). 
 - Ajoodhya v Imam, 7 W. R 528; Tara v Soorjo, 15 W. R. 15-! ; 
 Bibee I*. Maxwell, 20 W. R. 139; Nurendro xi. Ishan, 13B.LR 274, sc, 
 
 22 W. R. 22 ; Ram v. Bhola, 22 W. R. 200 ; Srishtee v . Mudan, I. L.R. 9 
 Cal. 6481 Kripa v. Durga, I L R. 15 Cal. 89; K-.bil v. Chunder I. L. R. 
 20 Cal. 590 ; Kalli v. Upendra, I. L. R. 24 Cal 212. 
 
 =• Dwarka v. Hurrish, I. L. R. 4 Cal. 925, sc , 4 C. L. R. 130. 
 
 •• Kripa z>. Dyal, 22 W. R. 169; Bhiram t-. Gopi, I L.R 24 Cal. 355 
 
 ^ Doorga v. Brindabun, 2 B L. R., App., 37, sc, 11 W. R. 162. 
 
 " Bibee t/. Ma-^well, 20 W. R. 139; Ram v. Bhola, 22 W. R. 200. 
 See the cases cited above. 
 
 ' Joy Kishen v. Raj Kishen, 5 W. R. 147 ; Suddye v. Boistub, 15 
 W. R. 261,5c., 12 B.L.R. 84. 
 
 " Hureehur v. Jodoo, 7 W. R. 114; Nurendro v. Ishan, 13 B.L.R 274, 
 Kalli V. Upendra, L L. R. 24 Cal. 212. 
 
 " Ram V. Bhola, 22 W. R 200. 
 
 '" Aa VIII of 1885, Stfc. 178. Joy V. Raj, i W.R. 153; Sreeram ^. Bis- 
 sonath, 3 W. R. (Aft X) 2 ; Chunder v. Kader, 7 W. R. 247; Nunkoo v. 
 Mohabeer, 11 W. R. 405 ; Unnopoorna v. Oomachurn, 18 W. R. 55; 
 Shunkur v. Saifoollah, 18 W. R. 507 ; jugut v. Eshan, 24 W. R. 220 ; 
 Dwarka v. Hurrish, L L. R. 4 Cal. 925 ; Palakdhari v. Manners, L L. R. 
 
 23 Cal. 179.
 
 300 RAIYATS. 
 
 raiyat, or may be effected by the various modes of invol- 
 untary alienation. The onus of proof of the usage or 
 custom of transferability is on the raiyat or his assignee, 
 even if he is a defendant in a suit for ejectment. ^ But 
 wherever the custom or usage of transferability is proved 
 to exist, the landlord is bound to recognise the transferee 
 on his obtaining possession, and, wherever the Bengal 
 Tenancy Act prevails, as soon as notice of the transfer is 
 given to the landlord." The transfer must, of course, be 
 effected according to the means prescribed by the 
 Transfer of Property Act,^ but it should be remembered 
 that registration in the landlord's office is not necessary 
 in the same way as in the case of transferable inter- 
 mediate tenures, nor are the same penalties prescribed 
 for non-registration."* The landlord's recognition of the 
 sale must follow the alienation and consequent pos- 
 session, without the payment of any ' fee ' or any other 
 action on the part of the raiyat or his alienee, except an 
 application for service of a notice under section 73 of 
 the Bengal Tenancy Act. 
 Modeof using The raiyat may use the land in any manner 
 
 which does not materially impair the value of the land, 
 or render it unfit for the purposes of the tenancy. '^ If 
 the tenancy has been created for ordinary agricultural 
 purposes, e.g., for cultivating paddy or other crops, the 
 raiyat w^il! not be allowed to convert the land or any part 
 of it into a tank or to erect substantial structures on 
 
 land 
 
 ' Kripa v. Durga, I.L.R. 15 Cal. 89, and the cases cited therein. But 
 see Doya v. Anund, I.L.R. 14 Cal. 382; Palak v. Manners, I.L.R. 23 Cal. 
 179; Dalglish V. Guzufler, I. L. R. 23 Cal. 427. 
 
 ' Aa VIII of 1885, Sec. 73. Ambika v. Chowdhry, I.L.R. 24 Cal. 642. 
 
 " Aft IV of 1882, Sec. 54. 
 
 * Taramonee T». Birressur, i VV.R. 86; Karoo t*. Luchmciput, 7 W.R. 
 15 ; Wooma v. Huree, 10 W.R. loi ; Joy v. Doorga, 11 W.R. 348. For 
 service of notice under section 73 of Aft VIII of 1885, see Rules (Ch. 
 V.) 7 nndB. 
 
 " Aft VllI of 1R85, Sec. 23; Sic. 178, Sub Sic. 3 (6).
 
 INCIDENTS OF OCCUPANCY RIGHT. 3°! 
 
 it.^ Neither will he be allowed to dig earth for making 
 bricks." It would seem from the decided cases that the 
 conversion of paddy land into a garden for horticultural 
 purposes is a misuse of the land. In cases of such im- 
 proper use of the land, the landlord is entitled to ask 
 for an injunction for restraining the conversion and 
 also for damages to the extent of the actual loss sus- 
 tained by him, provided he has not acquiesced in 
 such use of the land by the tenant, and the conditions 
 necessary for the issuing of a perpetual injunction or for 
 awarding damages are present." It is inequitable and 
 unjust to compel the raiyat to fill up the tank or remove 
 the structures or the fruit trees he might have planted. It 
 is also inequitable to award as damages an amount that 
 may be necessary for filling up the tank or other exca- 
 vation. The measure of damages should be regulated by 
 a calculation of the probable loss that may in future be 
 sustained by the landlord. Estimate the letting value of 
 the raiyati land before the conversion and that subse- 
 quent to it, and the actual loss of the landlord will be so 
 many years' purchase of the annual loss.* Under the 
 Bengal Tenancy Act, however, the tenant may make 
 the improvements specified in chapter IX. 
 
 Under Act X of 1 859, the raiyat had not the right to cut Cutting down 
 down trees, except those planted by himself.^ But he 
 could prove custom or usage to the contrary. Ordinarily, 
 the custom of paying chout or a fourth part of the price 
 of trees so cut down, even if planted by the raiyat himself, 
 prevails in many districts. The Bengal Tenancy Act 
 
 ' Jugut •z;. Eshan, 24 W.R. 220; Lai Sahoo v. Deonarain, 2 C. L. R. 
 294, sc , I. L. R. 3 Cal. 781 ; Prossunno v. Jagunnath, 10 C. L. R. 205. 
 
 ' Kadumbenee^). Nobeen, 2 W.R. 157 ; Anundi;. Bissonath, 17 W.R. 
 416. But see Peter v. Tarinee, 23 W. R. 298. 
 
 3 Whitham v. Kershaw, (1886) 16 Q. B. Div. 613. 
 
 < Nyamutoollah v. Gobind, 6 W. R. (Aft X) 40. Specific Relief Aft, 
 Sec 54. 
 
 * Abdool V, Dataram, W. R., 1864,9. 367; Goluck v. Nubo, 
 21 W. R. 344.
 
 302 RAIYATS. 
 
 has, in this respect, improved the status of occupancy- 
 raiyats by laying down, — " He shall not be entitled to cut 
 down trees in contraventiiMi of any local custom."^ 
 Tlie words of the law seem to imply that there is a 
 presumption in favour of the raiyat as to the existence of 
 the right of cutting down trees, whether the trees 
 have been planted by him or not. Custom or local usage 
 to the contrary may be invoked by the landlord to take 
 away the right of the raiyat.- Neither can the raiyat, 
 by any contract with the landlord, deprive himself of the 
 right. Section 178 of the Act, sub-sec. 3, cl. (b), makes 
 such a contract nugatory, if it be not consonant with 
 established usage or custom. 
 Payment of ^^^ ''^"^ payable by an occupancy raiyat is to be 
 
 rent at fair at a fair and equitable rate.'^ The landlord is not 
 
 and equitable • • 1 , . • • 1 j . 
 
 rates entitled to claim more,^ and the tenant is not entitled to 
 
 tender less than what is payable at such a rate. Ordinarily 
 the raiyat is bound to pay at the customary or perganah 
 rate for the quantity of land actually held by him,*^ but 
 in the absence of any evidence as to any other rate being 
 fair and proper, there is a presumption as to the fairness 
 of the rate at which rent has been previously paid." 
 
 Eieftment Immunity from ejectment by the landlord, except 
 
 under very peculiar circumstances, is the greatest boon 
 conferred on occupancy raiyats by the Rent Acts of 
 1859 ^"^ 1869" and the Bengal Tenancy Act of 1885, 
 Ejectment was unknown in oldt- n days, but as demand 
 for land increased, ejectment or forcible ouster became 
 
 ' Aa VIII uf 1885, Sec. 23. 
 
 ' Nafar v. Ram, I. L. R. 22 Cal. 742 Grija v. Mia, 1. L. R. 22 Cal. 
 744 ( note ) ; Samsar v. Lochin, F. L. R. 23 Cal. 854. 
 
 ' Aa X of 1859, Sec. 9 ; Aft VIII of 1885, Sec. 24. 
 
 * Noor Mahomed v. Hiirri, W. K., 1864 ( A3. X ) 75. 
 
 *Thakooraneci/. Bissheshiir, 3 W.R., AS. X,2g,.sc., B.L.R. (F.B)202. 
 
 " Aa VIII of 1885, Sec. 27. Compare Aas X of 1859 (Sec. 5) 
 and VIII (B.C.) of i86y. 
 
 ' Aa X of 1859, Sec. 21. See also Sections 22 and 23 of Aa 
 Vlil (;B.C.) of 1869.
 
 INCIDENTS OF OCCUPANCY RIGHT. 303 
 
 common. Act X of 1859 put an end to the landlord's right 
 to eject occupancy-raiyats, except for non-payment of 
 rent^ and breach of any condition in the contract or for 
 misuse of the land. Ejectment could be enforced only 
 
 under a decree of Court.- On non-payment of rent, the For non-pay- 
 
 , r . J ment of rent, 
 
 landlord had the right to get a decree for ejectment on de- 
 fault of payment of the amount of the decree within fifteen 
 days from ihe date of the decree. If the tenure was 
 transferable by custom or local usage, the landlord could 
 not gee a decree for ejectment^ ; he could only put up to 
 sale the tenant's interest. Section 78 of Act X of 1859 
 and section 52 of Act VIII (B. C.) of 1869 afforded an 
 equitable relief, even if the lease stipulated for immediate 
 ejectment for non-payment of arrears. The Court might 
 extend the period of fifteen days on reasonable grounds. 
 The Bengal Tenancy Act has, however, taken away 
 from the landlord this right to eject a raiyat for non pay- 
 ment of rent. Whether the occupancy-right is transfer- 
 able by custom or not, the tenant is not liable to eject- 
 ment for arrears of rent, but his holding is liable to be sold 
 in execution of a decree for the rent thereof, and the rent 
 is a first chargre thereon.^ The landlord has now 
 the right of selling the land as property belonging to the 
 raiyat, or if he does not choose to do so, he can 
 follow in execution of his decree any other proper- 
 ty of the raiyat, moveable or immoveable, ° but 
 he cannot eject him from his holding. The Act of 
 1859 recognised only a right to hold and cultivate, 
 the Act of 1885 has recognised, in addition, a limited 
 proprietary right in the raiyat. 
 
 ' Aa VIII (BC.) of 1869, Sec 52; Aa X of 1859, Sec. 78. 
 
 - Musyatulla v. Noorzahan, I. L. R. 9 Cai. 808, sc, 12 C. L. R. 389. 
 
 ^ Tirbhobun v. Jhonolall, 18 W. R. 206; Kristendra v. Aena Bewa, 
 10 C L. R. 399, sc, I. L.R. 8 Cal. 675 ; Fakin v. Fouzdar, I. L. R. 10 
 Cal. 547. 
 
 * Aa VIII of 1885, Sec. 65. 
 
 * Lalit 1;. Binodai, I. L. R. 14 Cal. 14; Fotick v. Foley, I. L. R 15 
 Cal. 492.
 
 304 
 
 RAIYATS. 
 
 For misuse of 
 land or breach 
 of condition. 
 
 On sale of 
 an estate for 
 arrears of 
 revenue. 
 
 Ejectment for misuse of land or for breacii of any ex- 
 press covenant in the contract of lease, for which liabili- 
 ty to ejectment is expressly provided, is an ordinary 
 incident of a lease of immovable property, even if 
 the lease is permanent/ But all civilized systems of 
 jurisprudence have safe-guarded the rights of lessees 
 by rules necessary for the protection of the weak and 
 the imprudent.® The period of limitation for a suit for 
 ejectment for breach of an express covenant is only one 
 year from the date of the breach, if the contract ex- 
 pressly provide^ that ejectment shall be the penalty for 
 such a breach. 
 
 The purchaser under a sale for arrears of revenue 
 under the Sale Laws or under a sale for arrears of rent, 
 when he acquires a title free of incumbrances, can- 
 not evict a raiyat with a right of occupancy,* even 
 though he may hold under a lease granted by the 
 defaulting proprietor or tenure-holder. The right of 
 such a raiyat being statutory, he is expressly protected 
 notwithstanding that his occupation was originally 
 based on a grant by the defaulter. Section 37 of Act XI 
 of 1859, in its proviso states — " A purchaser shall not be 
 entitled to eject any raiyat having a right of occupancy 
 at a fixed rent or at a rent assessable according to 
 fixed rules under the laws in force- or to enhance the rent 
 of any such raiyat, otherwise than in the manner pre- 
 scribed by the laws in force therefor or otherwise than 
 the former proprietor may have been entitled to do." 
 Section 14 of Act VII iB. C.) of 1868 reproduces the law 
 as laid down in section 37 of Act XI of 1859. 
 
 ' AdWIlI of 1885, Sec. 25. 
 
 ' Aa Vin of 1885, Sees 15s, 156; 44 ^^ 45 Via. cap. 41, Sec. 14. 
 
 • Aa Vill of 1885, Schedule iii, Art i. 
 
 ' Aa XI of 1859, Sec. 37; Aa Vlll of 1885, Sees. 159 and 160.
 
 INCIDENTS OF OCCUPANCY-RIGHT. 
 
 305 
 
 The Putni Sale Law' also protects from ejectnif-nt Onsaleundei 
 " khodkast raiyats or resident hereditary cultivators."' vIn"o7'°" 
 I need not remind you that in the year 1819 the ex- iSignnHthe 
 pression "right of occupancy" was not used in the ^"* ^' 
 language of the Legislature-, and the words used in 
 the Putni Regulation ought now to apply to occupancy- 
 raiyats as well, especially as under the Bengal Tenancy 
 Act, settled raiyats necessarily acquire occupancy-right 
 in all lands held by them in the same village, and there is 
 not much difference between settled s.r\d khodkast raiyats. 
 The language used in the Regulation — " resident and 
 hereditary cultivators" — requires, however, to be modi- 
 fied, as all occupancy-raiyats are not necessarily resident 
 and hereditary. If the words are strictly construed, a 
 good many occupancy-raiyats may suffer. Section 16 
 of Act VIII (B. C.) of 1865, re-enacted in section 66 
 of Act VIII (B. C.) of 1869, contains a similar proviso, 
 though apparently by an oversight the Local Legis- 
 lature, instead of adopting the language of the 
 Revenue Sale Laws, retained the time-honoured 
 expression used in Regulation VIII of 1819. Section 
 160 of the Bengal Tenancy Act includes, in the category 
 of *' protected interests" any right of occupancy, 
 and any right conferred on an occupancy raiyat to hold 
 at a rent which was fair and reasonable at the time 
 the right was conferred. Section 159 of the Act lays 
 df>wn that a purchaser on a sale for an arrear of rent 
 shall always take subject to " protected interests." 
 
 The right to sublet is an important incident of Subletting 
 occupancy-holdings and requires spe^cial attention. In 
 one sense, the right is inconsistent with the orig- 
 inal purpose of cultivation which, as we have seen, 
 lies at the inception of occupancy-right. The Legisla- 
 ture, however, has very wisely provided for the raiyat 
 occasionally letting out his land or portions of it 
 
 ' Regulation VllI of 1819, Sec. 11, cl. 3. 
 M (l)
 
 306 RAIYATS. 
 
 to under raiyats. A raiyat with a right of occupancy 
 may, for various reasons, be prevented from cul- 
 tivating all his lands, and it would be extremely hard, 
 if the privilege of subletting be denied to him. The 
 Bengal Tenancy Act devotes a small chapter^ on 
 under raiyats, and section 178, sub-section 3, cl. (e) 
 makes any contract between the landlord and his raiyat, 
 which takes away his right to sub-let subject to and in 
 accordance with the provisions of the Act, null and 
 void. This right to sub-let, which is very frequently 
 exercised by raiyats, occasionally causes difficulties 
 in distinguishing an occupancy-raiyat from an under- 
 raiyat. The position of a raiyat with a right of occu- 
 pancy becomes to all appearance that of a middle- 
 man or a tenure-holder, if he ceases to cultivate and is 
 satisfied with receiving rent from the under-raiyat. If, in 
 addition, his interest is transferable by custom, and if, 
 for a long time, he has held land through under-raiyats 
 only, he becomes, in fact, a middleman, though in the 
 eye of law, he continues to be an occupancy-raiyat,'* 
 the under-raiyat not being allowed, except under very 
 peculiar circumstances, to acquire the status of an 
 occupancy-raiyat. I have already drawn your at- 
 tention to the observations of the Calcutta High 
 Court in Baboo Dhiinput Singh v. Goonian Singh} Ac- 
 quisition of land for the purpose of cultivation is all 
 that is required to make a lessee a raiyat.* It has been 
 held that ' whatever may be the true definition of the 
 word rnivat ^ it is h\- no means necessary that he should 
 
 ' Aa VIII of 1885, Ch. VII, See also Jutneer v. Goneye, 12 W. R , 
 iio; Khoshal v Joynooddeen, 12 W. R., 451 ; Dumree v. Bissessur, 13 
 W. R 291. 
 
 '•' Karoo v. Liichmceput, 7 W. R. 15 ; Hnreehiir v Jodoo, 7 W. R. 
 1 14 ; Diirga v. Kali, 9 C. L. R. 449, 
 
 ' W. R , 1864, ( Aa X ) 61. Vide ante p. 285. 
 
 • Aa VIII of 1885, Sec. 5, .Sub, -Sec. 2, Explanation. Ram v Lukhce, 
 I W. R. 71 ; L'ma v. Uma, 8 W. R. 181 ; Kalee v. Ameer, 9 W. R. 579.
 
 WHO MAY ACQUIRE OCCUPANCY RIGHT ? 307 
 
 be an actual cultivator. Section 6 of Act X of 1859 says 
 distinctly thata raiyat, who has held land for twelve years 
 consecutively, is entitled to have a right of occupancy in 
 the same way as a raiyat who has cultivated land for 
 the same period. But though an under-raiyat is admitted 
 to the occupation of land for the purpose of cultivation, 
 his holding under a raiyat and not a tenure-holder is 
 generally a bar to his acquisition of the same right which 
 his lessor has under the law. A raiyat does not become 
 a middleman, simply because, instead of cultivating the 
 land, he erects shops on it, lets them out, and receives 
 profits from the shop keepers.^ 
 
 The right to surrender the holding is another Surrender 
 incident of occupancy-right.^ We have already and abandon. 
 
 ^ -I ^ ■' ment. 
 
 seen* that pt-rmanent tenure-holders cannot relinquish 
 their tenures without the permission of the superior 
 holder. But the law has especially protected the right 
 of an occupancy raiyat, to surrender his holding, and 
 any contract, taking away the right is invalid in law.* 
 If, however, a raiyat is bound by a lease or other agree- 
 ment for a fixed period, he is not entitled to relinquish 
 his holding before the expiry of such period." There 
 cannot be a surrender of a part of a holding nor can 
 a sharer surrender his share.® Abandonment by the 
 tenant may in some cases amount to surrender.'' 
 
 I propose now to deal with the following matters 
 with respect to occupancy-right — (i) Who may acquire 
 
 ' Khujoorunissa ■!;. Ahmed. 11 W. R- 88. 
 
 « Aa VIII ( B C. ) of 1869, Sec 20 ; Aft VIII of 1885, Sec. 86. 
 
 ' Ante p. 203. Heera v. Neelmonee, 20 W. R. 383. 
 
 *■ A6t VIII of 1885, Sec. 178, Sub-Sec. 3, el. (c). Gopa! v. Tarinee, 9 
 W. R. 89. 
 
 » Aa VIII of 1885, Sec. 86, Sub-Sec. i. Kashee v. Onraet, 5 W. R. 
 ( Aa X) 81 ; Tiluck v. Mohabeer, 15 W. R. 454- 
 
 « Saroda v. Hazee, 5 W. R. ( Aa X ) 78 ; Mohima v. Pitambur, 9 
 
 W. R. 147- 
 
 ^ Aa VIII of 1885, Sec, 87. Ram v. Gora, 24 W. R. 344 : Golam v. 
 
 Golap, I. L. R. 8 Cal, 612.
 
 3o8 
 
 RAIYATS. 
 
 the ris^ht •? (2) With respect to what class of land may 
 the riglit he acquired? 3 How inay the riglit be ac- 
 quired ? 4) What are the respi dive dutie-. and liabilities 
 of the Iriiidlord and ihe tenant duiing the period of the 
 existence of the right in the tenant ? (5) How may tl)e 
 right be lost or determined ? 
 Raiyatsonly Under section 6 of Act X of 1859 and Bengal Act 
 
 may acquire yjji ^^f j j^5q^ as well as under sections 19 and 21 of 
 
 occupancy- . r^ 1 t \ ■ i ^ 
 
 right. the Bengal 1 enancy Act, a raiyar only may acquire 
 
 occupanc) right. But all raiyats are not enlitled to 
 have the privilege, wdiich the Regulation code of 1793 
 practically took away from the cultivators of the soil and 
 which the Act of 1S59 restored to them, though partially, 
 after the lapse of nearly sixty years. Broadly speaking — 
 '' Every raiyat may have a right of occupancy in the land 
 culti\ated or held by hini^' ; but there are the exceptions 
 which we have to note. As regards the actu d cultivators, 
 the Kent Acts of [859 and 1869 made an exception as to 
 persons liolding or cultivating land uiiler sub leases from 
 raiyats having rights of occupancy, if th<-v held for fixed 
 periods only or from year to year.^ These sub-lessees are 
 known by various local names in different parts of the 
 country, such 'Askorfndays.durjotedars &i*.,Hnd are called 
 under rai^'als in the Bengal Tenancy .'\ :t. An under- 
 raiyat could, under the old law, acquire a right of occu- 
 pancy in lands sub-let to him, otherwise tlian for a 
 term or from year to year;'' but ordin,irily lie could 
 not acquire the right, as he generally held for a 
 termior Irom year to year. But cases might occur in which 
 the terms of their sub leases would ent ille the under- 
 raiyats to acquire the same sort of statutory right as 
 thesupiiior holders themselves. Flic Bengal Tenancy 
 
 ' Ketal V. Mad'.r, 6 VV R. i<'S; .Vbd .ol •■. KiUx, 7 \V. R. .<^i ; 
 Kalee v. Ram, 9 W. R. 344; Haran v Mookta. 10 W. K. 113; Ramdhun 
 V. Harndun, 12 W. R. 404; Nil v. D.incsh, 15 W. R 469; Unnopoorna 
 V. Radha, 19 W. F^. 95. 
 
 •-■ Aa X of 1859, Sec. 6,
 
 WHO MAY ACQUIKK OCCUPANCY-KIGHT ? 309 
 
 Act, however, does not favour the acquisition of the right 
 by under-raiyats, as it manifestly tends to take away 
 from the raiyat with a right cjf occupancy his power of 
 cuhivating his lands himself or by hired labourers. The 
 existence of the same sort of right in two persons, hold- 
 ing the same piece of land, one claiming under the 
 other, is in itself an anomaly, and whatever conflict of 
 opinions there might be under Act X of 1859, it may 
 safely be said that under the Bengal Tenancy Act an 
 under-raiyat cannot acquire a right of occupancy, unless 
 custom or usage favours him.' 
 
 A 'settled raiyat" acquires, under the Bengal Tenancy Settled 
 Act, aright of occupancy in all lands held by him for the '^^'^'* ^' 
 time being as a raiyat.^ The idea of the right of a 
 settled-raiyat owes its origin to the right which was 
 known to belong to khodkast raiyats who were crea- 
 tures of custom ; but a khodkast raiyat might acquire 
 his jjeculiar status by residence in a village for a much 
 shorter period than twelve years, though he is not neces- 
 sarily, a " settled raiyat^' by holding land for a period 
 of twelve years or longer Recognition by the village 
 political unit was all that was needed to make a new 
 comer into the village a khodkast raiyat, the period of 
 residence being perfectly immaterial ;^ but residence 
 in the village was absolutely necessary to give the statu.s. 
 The nearest cognate relation of a village maudal, unless 
 he happened to be the heir-at-law, would not be a member 
 of the political unit, if he happened to be a nonresident, 
 even though he might hold land in it for a lony period. 
 He would still he 3i paikast^ rA\y?i\., having none of the 
 burdens and the privileges of a khodkast cultivator. The 
 " settled raiyat" is a creature of the Legislature and 
 not of custom or custom,'iry law. Ihe Bengal Tenancy 
 
 ' Aa VIII of 1885, Sec. 183, Illustration 2. For the incidents of an 
 under-raiyat's holding, see Aa VIII of 1885, Ch. VII. 
 ^ Aa VIII of 1885, Sec. 21, el. i. 
 =• Ante p. 280. ' Ante p. 281.
 
 310 RAIYATS. 
 
 Act, in section 20, makes every raiyat having a 
 right of occupancy, i.e., holding land as raiyat con- 
 tinuously for more than twelve years in any village, 
 a settled raiyat of that village. Whether the raiyat 
 be khodkast or paikast^ whether he be recognized 
 by the residents of the village as a member of 
 their body or not, he becomes a settled I'aiyat as soon 
 as he has acquired a right of occupancy in any land 
 in the village. The acquisition of the right is dependent 
 upon codified law and not upon the voice of the pea- 
 santry in a village. Again a person is a settled raiyat of 
 a village, within the meaning of the Bengal Tenancy Act, 
 if he has continuously held land in a village, though the 
 particular land mav be different at different times/ A 
 person is deemed to have held as a raiyat land held by 
 his predecessor, and lands held by co-sharers as a raiyati- 
 holding are regarded as held by each separately.* A 
 person is also considered to be a settled raiyat of a 
 village^ so long as he holds any land as a raiyat in that 
 village and for one year thereafter.^ If a raiyat recovers 
 possession of his holding under section 87 of the Act, 
 he continues to be a settled raiyat of the village, not- 
 withstanding the previous dispossession.* There is a 
 considerable difference between the right of occupancy 
 under the Rent Acts of 1859 and 1869 and the right of a 
 settled raiyat under the Bengal Tenancy Act. A settled 
 r«iVrt/ acquires a right of occupancy in any land he holds, 
 however short the period of occupation may be, not by 
 occupation of, and payment of. rent for, the same piece 
 of land for a continuous period of twelve years. 
 Bhagdari Tenants holding land under the bhas^dari^ or 
 
 raiyits. bhnoH system may acquire tln^ rieht in the same 
 
 ' Aa VIII of iS.".5, Sfc. 20, cl 2. 
 ' Aa VIII of 1885, Sec. 20, clauses 3 and 4. 
 ' Aft V 111 of 1885, Sec. 20, cl. 5. 
 < Ktx VIII of 1885, Sec. 20, cl. 6 
 
 '• Hureehur v. Biressur, 6 W. R. ( Aft X ) 17; Jiilto r Mussamut 
 Basmultec, 15 WR 479.
 
 cerns. 
 
 WHO MAY ACQUIRE OCCUPANCY-RIGHT ? JI I 
 
 way as raiyats paying rent in specie. The law makes 
 no distinction between rent in kind and rent in specie. 
 Thousands of raiyats, specially in the province of Behar, 
 hold land under the system known as the bhaoli, 
 battai, or bhagdari, and many of them have done 
 so for generations. 
 
 It was at one time doubted whether an indigo Indigo con- 
 concern or a lirm, which has no corporate or legal 
 existence as an individual or individuals, could ac- 
 quire a right of occupancy. '^ It was contended, on the 
 one hand, that the right could be acquired only by raiyats, 
 and that members of an indigo concern could not 
 come within the ordinary meaning given to that word ; 
 and that an association of persons constituting a firm, 
 who had a large capital and who devoted their energy 
 to the improvement of the soil for the benefit of the 
 country as also for their own benefit, could not be said 
 to be a raiyat. On the other hand, it was contended that 
 there was nothing in the law to prevent the acquisition 
 of the right by such an association. There was, in 
 fact, no reason why a firm, cultivating indigo or tea by 
 hired labourers, should not have the privileges of raiyats 
 in the sense the word has been used in the Tenancy 
 Acts.- No doubt the word raiyat ordinarily carries 
 with it the idea of poverty, ragged clothes, and miserable 
 hovels ; but I suppose ihe law never intended that the 
 privileges of occupancy-right should be attached only to 
 want and destitution, and not to wealth and palatial build- 
 ings. If a firm cultivating indigo or tea continues to 
 have the same members and to occupy the same piece 
 or pieces of land or hold land in the same village 
 for more than twelve years, it should have the right 
 which the law has created for the benefit of cultivators. 
 The Bengal Tenancy Act, in section 5, read along 
 
 ' Cannan i>. Kylash, 25 W. R. 117; Rai z;. Laidley, I. L. R. 4 Cal. 
 
 957- 
 
 •^ Laidley v. Gour, I. L. R. 11 Cal. 501.
 
 312,. UAIYATS. 
 
 with section 2 of the Gener.il Claus^^s Act (I of i858), 
 
 clearly indicates that an association of persons or a 
 
 firm is as much capable of acquiring the right as the 
 
 poorest cultivator of the soil. 
 
 The landlord yjjg landlord himself cannot, by cultivating his own 
 
 himself. , , ., , , , ,- , 
 
 land, even if he were to use the name or a stranger as 
 
 holding the land, acquire a right of occupancy in the land 
 so cultivated bv him.^ The system of holding land 
 in this country bcnaini in the names of servants and 
 relations, is common, though no presumption ought to 
 be made in every case in favour of benami holding. 
 Evidence may be given to show that the landlord himself 
 has been cultivating and taking the profits of the land, 
 and such evidence may be sufficient to prove the 
 benami character of the holding. Cases about benami 
 holding occasionally arise, especially when the landlord's 
 interest is sold, and he, the outgoing landlord, attempts 
 to resist the purchaser by putting forward nominal 
 holders under him. 
 Co-sharer A co-sharer out of a body of landlords cannot acquire 
 
 landlords ^j^g right by holding and cultivating land and paying 
 
 a proportionate share of the rent to the other co- 
 sharers. Neither can he do so by holding land with the 
 permission of the other joint owners, the latter holding 
 other lands by arrangement.'^ It is wrong in principle 
 to allow a landlord to have the benefits of the right, 
 which the law intended to confer only upon raiyats, and 
 if a co-sharer landlord were entitled to acquire the right 
 of a raiyat, opportunities of committing fraud upon 
 strangers and dimini.■^hing the actual quantity of raiyati 
 land in a village would be great. At one time it was 
 doubted by the High Court at Calcutta whether .such a 
 co-sharer couKi acquire the right, and in one case^ it was 
 
 ' Kced V. Sreekishen, 15 W. R. 430; R^dhH v. Rakhal, I. L. R. la 
 
 Cal, 82 
 
 ' Roghoobun r Bishen, 2 W. R. ( Aft X ) 92. 
 
 • Per Jackson, J., in Kalee ■». Shah, I2 W. R. 418.
 
 WHO MAY ACQUIRE OCCUPANCY-RIGHT ? ^Ij 
 
 thrown out that the question was one of fact and not of 
 law. It was held that the conduct of the co-sharers might 
 be evidence for proving the existence of a right of occu- 
 pancy in any one of them. But the Legislature has, in 
 section 22 of the Bengal Tenancy Act, indicated that 
 such an acquisition of the right cannot be recognized. 
 The union of two inconsistent rights — of the landlord 
 and an occupancy-holder, has been deemed improper 
 and against the policy of law, and as soon as they unite 
 in the same person, the inferior right is extinguished.' 
 
 A lessee, such as an ijaradar or farmer of rent Lessees, 
 whether he is known as a ticcadar, katkinadar or 
 mostajir, cannot acquire the right in any land com- 
 prised in his ijara or farm.'* A man cannot occupy 
 the double character of a landlord and a raiyat and 
 acquire a statutory right on the pretence of paying 
 rent to himself.^ If a person is already in occu- 
 pation of land as a raiyat and obtains a lease of the 
 landlord's right before the completion of the period of 
 twelve years of his possession as a raiyat, his possession 
 of the land during the period of the lease cannot be 
 counted as thit of a raiyat, and the acquisition of the 
 
 ' But see Sitanath v. Pelaram, I. L. R. 21 Cal. 869 and Jawadul v. 
 Ram, I. L.R. 24 Cal. 143. In this latter case, a division Bench of the High 
 Court, consisting of five Judges, held — " The effect of a purchase, by 
 one co-owner of land, of an occupancy right is not that the holding 
 ceases to exist, but only the occupancy right, which is an incident of the 
 holding, is extinguished." The result is that the purchasing co-sharer 
 becomes a raiyat. What is his status ? If he becomes a non-occu- 
 pancy raiyat, he will be entitled to acquire the status of an occupancy. 
 raiyat by twelve years' occupation. He cannot be an under-raiyat. 
 The land being raiyati, the incidents of a landlord's private land cannot 
 attach to it. Such a tenancy will certainly be of an anomalous 
 character and one not recognized in the Aft. 
 
 " Aft VIII of 1885, Sec. 22, Sub-Sec. 3. Lalla v. Bhaka, 17 W.R. 2412 5 
 Wooma V. Koondun, 19 W. K.. 177 ; Ramsarun v. Veryag, 25 W. R. 554 ; 
 Thomas v. Punchanun, 25 W. R. 503 ; Lai v. Solano, I. L. R. 10 Cal 45. 
 
 ^ The unreported rase Kishen v. Rajah Radha cited in Lai v. 
 Solano, I. L. R. 10 Cal. 45, sc, 12 C. L.R. 559. But see Jawadul v. Ram, 
 L L. R, 24 Cal. 143. 
 
 N(I)
 
 ^14 RAIYATS. 
 
 rii^ht remains in abeyance during this period.^ If the 
 right was already perfected before the beginning of the 
 lease, the right would not be lost. To use the words 
 of Mitter J., in Lai Bahadur Sing v. E. Solano* — 
 " During the time of the ijara, the raiyat remains in 
 possession of the land in a double capacity, and the 
 operation of the acquisition of the right of tenancy 
 remains in abeyance." 
 
 Trespasser. A person possessing or cultivating land as a trespas 
 
 ser cannot acquire a right of occupancy.' If he de- 
 -s dlined to have the position of a raiyat paying rent, and 
 
 held the land either ste.ilthily or by setting the landlord 
 at defiance, his wrongful possession would give him no 
 right as a raiyat. If he set up a lakhiraj title, he would not 
 be permitted to claim the benefit, which only a raiyat 
 paying rent is entitled to have * The setting up of 
 a title hostile to the landlord amounts to a disclaimer, 
 which prevents the acquisition of the right.* 
 
 Permissive Permissive possession, or possession by a servant as 
 
 such, is not that of a raiyat, and cannot confer the right.' 
 
 Possession I may here add that the acquisition of the right 
 
 pass^er^ "^^^ does not depend upon holding under, and payment 
 of rent to, the rightful owner. '^ The right is not 
 acquired by the raiyat by virtue of any grant, but 
 it grows from the mere circumstance of his holding 
 and cultivating land and paying the rent due in respect 
 
 ' Gurbaksh v. Jeolall, I. L. R. i6CaI 127. 
 
 'I L. R 10 Cal. 45. But see Gur v. Jeolal, I. L. R. 16 Cal. 127 and 
 Ma^eyk 71 Rhajrabati, I. L R, 18 Cal. 121. 
 
 ■' Peer 7). Mcahjan, \V. R., Sp. Vol., F. B., 146; Gureeb v. Bhoobiin, 
 2 W. R. ( Aa X) 8s : Sheikh Gholam v. Rajah Poorno, 3 W. R. ( Aft 
 X ) 117 ; Hhoobunjoy v. Ram, 9 \V. R , 449; 
 
 • Srcemutly Wooma v. Kishoree, 8 W. R 238; Ishin v. Hurish, 18 
 W. R. 19; Knlee v. Shashonee, 25 W. R. 42. 
 
 * Dabei; v. Mungiir, 2 C. L. R. 208; .Saty.iUh.un i v. Krishna, 
 I. F,. R. 6 Cal. 55; Ishan v. .SlKiinn, 1. I,. R. 10 Cal, 41. 
 
 ' Wooma V. Hokoo, 13 W. R 333 ; Mohiir v. Ram, 21 W. R 400. 
 ' Syud V. .Sheu, 19 W. R. 338; .Sreemiitty r. Radhica, i C. L. R, 
 388 i Binad v. Kalu I. L. R. 20 Cal. 708.
 
 IN WHAT LANDS ? ^^X^ 
 
 thereof.^ If a raiyat has been induced into the land by 
 one of several co-owners or the holder of a life-estate 
 or a mortgagee in possession or even by a trespasser, 
 he is entitled to claim a right of occupancy in the same 
 way, as if he has come into p )Ssession at the instance 
 of the absolute and rightful owner. It is quite immate- 
 rial as to whose tenant he has been, provided he has --^..i-: 
 held the land bonifide a-; a raiyat and has paid rent 
 therefor. 2 
 
 Land must be taken or used for agricultural or horti- Agricultural 
 cultural purposes, otherwise no right of occupancy can be "uraUand." 
 acquired.^ In Kalee Kishen Biswas v. Sreemutty Jankee 
 and others^ ^ Phear J., is reported to have said — ■" The oc- 
 cupation intended to be protected by this section (section 
 6, Act X of 1859 is occupation of land considered as the 
 subject of agricultural or liorticultural cultivation and 
 used for the purposes incidental thereto, such as for the 
 site of the homestead, the raiyat or the mah's dwelling 
 house and so on I do not think that it includes occupa- 
 tion, the main object of which is the dwelling house 
 itself, and where the cultivation of the soil, if any there 
 be, is entirely subordinate to that. I had occasion in the 
 case of Khellut Chunder v. Umirto, reported in the 
 hrst volume of the Indian Jurist. New Series, 426, to 
 consider the matter very fully, and I see no reason now 
 to alter the opinion which I then expressed.'' The 
 late Justice Dwarkanath Mitter, however, was of a differ- 
 ent opinion^. His view of the law was the same as 
 that expressed in some of the older cases, but it has been 
 held in almost all the later cases on the subject, that 
 there can be no right of occupancy in land used mainly 
 
 ' Zoolfun V. Radhica, I. L. R. 3 Cal. 560, sc , i C. L. R. 388. 
 
 • Pandit Sheo v. Ram, 8 B. L. R. 165 ; Zoolfun v. Radhica, I. L. R. 
 3 Cal. 560. 
 
 ' Ramdhun v. Haradun, 12 W. R. 404. 
 ^ 8 W. R. 250. 
 
 * Rani Durga t;. Bibi Umdat, 9 B. L. R. lOi. In r^ Bramamayi, 9 
 B. L. R. 109 } Brajanath v. Lowlher, 9 B. L. R. lai.
 
 3i6 
 
 RAIYATS. 
 
 for any but agricultural or horticultural purposcis. In 
 Mohesh Chunder Gungopadhya v. Bisho Nnth Doss'^,i\\Q 
 question was discussed by Markby J., and he came to the 
 conclusion that it was settled law that the provisions of 
 section 6 of the Rent Acts^ could apply only to lands 
 used for agricultural or horticultural purposes. 
 Homestead No right of occupancy can be acquired in land used 
 
 lands. fQj. building purposes.^ Neither can the right be 
 
 acquired in land used for the erection of a school 
 f or a church,* and no suit for enhancement of rent 
 
 or even for the recovery of arrears of rent of such lands 
 could be maintained in the Collector's Court under 
 the Rent Act of 1859. Similarly, land used for 
 arhats, ghats, bazars, indigo-factories or manufac- 
 tories cannot come within the purview of the Rent Acts. 
 But if a piece of land has been used by a cultivator for 
 his own habitation, and it is a part of an entire agricul- 
 tural holding, he acquires a right of occupancy in it with 
 the rest of the land in the holding." If a raiyat holds 
 his homestead land otherwise than as a part of his agri- 
 cultural holding, the incidents of his tenancy of the home- 
 stead land are regulated by local custom or usage, and 
 subject to such local custom or usage, the raiyat may, 
 under the provisions of the Bengal Tenancy Act," acquire 
 a right of occupancy in it. It seems that it a raiyat hold- 
 ing land for agricultural purposes holds his homestead 
 land as a different holding in the same village, and 
 not as a part of his agricultural holding, he has 
 ordinarily the same sort of right in the homestead 
 
 ' 24 W. R. 402. 
 
 - Aa X c,f iHsq; Aa VIII ( B. C. ) of 1869 
 
 " Kalee v. Kalee, li W. R. 183 ; Cliurch v. R;im, 11 \V. R. 547 ! 
 Raree*.Bibee, 17 W.R. 151 , Muddun v. William Stnlk;irt. 17 W.R. 441 ; 
 Mohur V. Rnm, 21 W. R. 400 ; Rakhal v. Dinomoyi, I. L. R. 16 Cal. 652. 
 
 ' Ranee Shiirnomoyee v. Blumhardt, 9 W. R. 552. 
 
 » Pogose V. Rajoo, 22 W.R. 511 ; Mohesh v. Bishonath, 24 W.R. 402. 
 
 • Aa VIII of 1885, Sec. 182.
 
 IN WHAT LANDS? ' S^T''l 
 
 land as in the agricultural holding. i The two holdings, 
 in such a case, are inseparably connected with each 
 other. The mere fact of the tenant holding his home- 
 stead land and his agriculturil holding as separate 
 fummns, though under the same landlord, can be no 
 reason for applying different rules of law to them. In 
 a good many districts in Bengal, tenants are allowed to 
 hold homestead land without payment of any rent, as 
 in these districts it is a pri\ ilegr of the cultivating classes 
 to have land rent-free for habitation. In other districts, 
 local custom or usage entitles the raiyat to pay merely 
 a nominal sum as rent for his bastoo and udbastoo lands. 
 Section 182 of the Bengal Tenancy Act intends to pro- 
 tect the raiyats who hold such homestead lands, but the 
 rule laid down tiierein has nothing to do with other kinds .; 
 
 of homestead lands. Under the Hindu system, and, it 
 would seem, even under the Mihomedan system, no rent 
 was levied with respect to the homestead lands of the 
 agricultural population, when they were held as in- 
 separable appurtenances to agricultural holdings. 
 
 In some of the districts in Bengal, it is neces- utbandi 
 ?ary to keep land fallow for a year or two, in order that lands, 
 fertility may be restored. Cultivation for successive years 
 takes away the productive power of the land to such 
 an extent that the raiyat is obiig-z-d to have re- r .--'.»»..' a 
 course to other pieces of land. Manuring is un- 
 known or is disproportionately costly. In the dis- 
 trict of Nadia such lands are known as utbandi or 
 nucksan." In Dwarkanath Misreev. Noboo Sirdar^, an 
 utbandi tenure is defined to be one " by which the raiyat 
 holds a certain area of land, but for which he pays 
 rent according to the quantity of that land which year 
 by year he cultivates. The rent varies according to 
 
 ' See Kalee v. Sreemutty Jankee, 8 W. R. 250 ; Pogose v. Rajoo, 22 
 W. R. 51 1 i Mohesh V. Bishonath, 24 W. R. 402. 
 
 * Prem v. Shoorendro, 20 W. R. 329. • 
 
 ^ 14 W. R. 193.
 
 3l8 RAIYATS. 
 
 the cultivated area." Under the Acts of 1859 and iSSg, 
 if the raiyat paid rent for the period he could cultivate, 
 and did not pay when he could not cultivate, or paid 
 only for as much land as he could cultivate in any year, 
 the holding and cultivation for more than twelve 
 years, though discontinuous, gave him a right of 
 occupancy.^ Section 180 of the Bengal Tenancy Act 
 has made a material alteration in the sta' us of z^/i^czw^// 
 raiyats. No occupancy right is now capable of being 
 acquired in iitbandi lands, unless the same piece of land 
 has been held for twelve continuous years.- Section 19 
 of the Act, however, makes an exception in favour of 
 rights acquired before the commencement of the Act; 
 by operation of any enactment, custom or otherwise. 
 
 Fisheries. The right cannot be acquired in jiilkars or tanks, 
 
 when such julkars or tanks are net appurtenant to 
 land acquired or held for cultivation."^ If a raiyat holds 
 a tank as a part of an agricultural holding, the water of 
 the tank being used for domestic purposes or for irriga- 
 tion or preparation of jute or similar other crops, he 
 acquires a right of occupancy in it.* But he cannot 
 acquire the right in a tank used only for the rearing 
 and preservation of (ish, when it is not a part of an 
 agricultural holding. '^ 
 
 Pasture land Pasture land has been held to come within the pur- 
 
 view of section 6 of the Rent Acts. The right may be 
 acquired in land used for grazing horses." But a tenant 
 cannot acquire a right of occupancy merely by the user 
 
 ' Dwarka v. Noboo, 14 W. R. 193 ; Prem v. Shoorendro, 20 W. R. 
 329. 
 
 * Beni v. Bhuban, I. L. R, 17 Cal. 393. 
 
 " Wooina V Gop;il, 2 W. R ( Aa X ) 19 ; Sih.,0 7' Gcpal, 19 W. R. 
 200 ; Nifihi v. Ram, 20 W. R. 341. 
 
 * Wooma x;. Gopal, 2 W. R ( Aft X ) 19; .Siboo v C.p.il, 19 W. R. 
 200; Nidhi V. Ram, 20 W. R. 341 ; Sham v. The Court of Warxls, 23 
 W. \\. 432; JuKgobiindhoo v. Promotho, I. L. R. 4 Cal 767 ; Bollye v. 
 Akram, I. L. R 4 Cal 961. 
 
 ' A''t VIII of TSS5. Sec. 193. Fitzpatrick v. Wallace, 11 W. R. 231
 
 IN WHAT LANDS ? S*5 
 
 of pasture land of his landlord, if he does not pay 
 rent for the same, though he may acquire a right in the 
 nature of an easement. 
 
 The right cannot ordinarily be acquired in land held Proprietor's 
 
 111 private lands, 
 
 by the proprietor of an estate or a tenure-holder as 
 
 his private land, known in Bengal as khamar, nij or 
 nij-fot, and in Behar as zirat, nij, sir or kamat} 
 The distinction between tenemental lands and the 
 lord' s domain is well-known. The lord's domain of 
 feudal Europe resembles in many respects the lands 
 knou'n as nij-jot &c., in the Bmgal Provinces. In 
 ancient times, the chiefs in India as elsewhere, had 
 lands held and cultivated by tliemst-lves, by members 
 of their families or hired labourers, and at the same time, 
 they collected a share of the produce of ordinary raiyati 
 lands as land-tax. In course of tinif-, the chiefs ceased to 
 cultivate the lands themselves or through members of 
 their families ; but cultivation by means of hired labour, 
 principally through the aid of the sudras, continued 
 for a long time. When the Mahomedan government 
 reduced the native chiefs to the position of zemindars, 
 it allowed the lands which they held as nij-jot or khamar 
 to remain in their possession, but did not exact any 
 land tax for them. The land-tax that was levied through 
 the zemindars was for lands held by raiyats, artisans and 
 persons following trades and professions. The quan- 
 tity of land held by each zemindar as nij-jot or 
 khamar was limited, and the fiscal authorities very seldom 
 permitted him to extend it. The farmers of revenue, who 
 ultimately acquired the rank of zemindars, were also 
 allowed to hold lands of a similar description. The exten- 
 sion of the quantity of nij-jot or khamar land was, how 
 ever, not unfrequent, but there is every reason to believe 
 
 ' Aa X of 1859, Sec. 6; Aa VIII ( B. C. ) of 1869, Sec. 6; Aa 
 VllI of 1885, Sec 116; Gour v. Beharee, I2 W. R. 277; Bhugwan 
 V. Jug Mohun, 20 W. R. 308 ; Hurish v. Gunga, 25 W. R. 181 ; Obhoy 
 V, Kanye, i C. L. R. 394.
 
 ^20 RAIYATS. 
 
 that such extension was surreptitious. Encroachments on 
 
 waste lands and occupation of lands abandoned b)' raiyats, 
 
 were the principal means adopted by zemindars for 
 
 increasing the quantity of private lands. 
 
 Proprietary ■ The proprietary right of the Government in waste 
 
 right in i i • r i i • i i •!.• 
 
 waste lands. lands IS a matter of controversy, and high authorities 
 
 have said that waste lands in India theoretically belong- 
 ed to the various village communities, and were capable 
 of being brought under cultivation as soon as there 
 were opportunities for it. There were waste lands and 
 virgin forests, lying at a distance from inhabited vil- 
 lages, and these would not come within the definition 
 of the coifimon tnark. In ancient times, temporarily 
 uncultivated lands used to form parts of village- 
 domains, but they would, sometime or other, be culti- 
 vated and thus merge in the arable mark} Encroach- 
 ments on such wastelands bv the landlord himself would 
 decrease the quantity of land available for the use of 
 raiyats, and prevent an increase in the land-tax which 
 should have come into the imperial exchequer. The raiyats 
 themselves would, for obvious reasons, resent such en- 
 croachments. The Mahomedan government neces- 
 sarily discountenanced the extension of zemindar's 
 private lands by means of gradual inclusion of 
 parts of the uncultivated waste lands which were re- 
 served by the common law of the country for the 
 use of the peasantry and the increase of revenue. 
 The Bengal Tenancy Act, though it lays down rules 
 for the determination of the character of any land, as 
 raiyati or private^ distinctly contemplates that there 
 should be no extension of the quantity of proprie- 
 tor's private lands in any village. It excludes uncul- 
 tivated or waste lands,'- which, according to the estab- 
 lished usage of the countrv, have always been reserved 
 for supj)Iying the necessaries of life of an ever-growing 
 
 ' Mayne's Viilflge Communities, p. 162, (ist Edition). 
 ' Cf. Leflure I, p. 7.
 
 IN WHAT LANDS? 321 
 
 population. It makes rules for the record of proprietor's 
 private lands, and such records will effectually prevent 
 land-owners from extending them/ 
 
 When a tenant abandoned his holding or was com- Lands aban- 
 pelled to abandon by the tyranny of the landlord, the raiyats. ^ 
 land thus left vacant might be cultivated by the landlord 
 himself for his own profit, until another tenant would 
 come in and occupy it. In theory, the land, 
 notwithstanding cultivation by the landlord himself, 
 would not be a part of his private lands, but would con- 
 tinue to be a part of the raiyati lands of the village. 
 It was the duty of the landlord to let out the land to 
 a tenant as soon as one was to be had, and he would 
 commit fraud on the state if he did not do so. As 
 I have already said, surreptitious occupation must 
 have been common, but the land-law and the fiscal 
 system of the country required that such lands should 
 be let out at the first opportunity. They could not in 
 olden days, and cannot now be nij-jot or sir. 
 
 The private lands of the zemindars and persons Tenants' right 
 r in private 
 
 having a similar relation to the peasantry were thus lands. 
 
 limited in extent, and theoretically incapable of ex- 
 tension. They were not always cultivated or caused 
 to be cultivated by the land-owner himself ; they were 
 let out occasionally on rent in specie, but more 
 generally at half the produce or even a smaller share. 
 The letting out, in fact, did not, according to ancient 
 theory, create the relationship of landlord and tenant 
 between the owner of the land and the cultivator, neither 
 did it create in favour of the cultivator any interest in 
 the land so let out. It was really cultivation by hired 
 labour, a share of the produce being taken by the 
 labourer as remuneration or wages. Vrihaspati^ 
 as quoted in Parasxramadhava, says — "The culti- 
 vator is entitled to a third or a fifth share of the 
 
 ' Aa VIII of i88s, Sees. 1 17-120. 
 O U)
 
 322 RAIYATS. 
 
 produce."^ The text occurs in the chapter on Wages in 
 Pardsaramddhava, and the commentator explains that "a 
 fifth share is due to the cultivator, if he receives food and 
 raiment from the owner of the land, a third if he does 
 not."* In later days, the share became generally a half 
 instead of a third, and hence these cultivators used to be 
 called drdhasiri. Half the produce was deliverable to 
 the land-owner by the cultivator not as rent, but 
 the land-owner who was entitled to cultivate the 
 land himself or by hired labour allowed him to 
 retain a half as the price of his labour. The theory 
 of law, at the present day, is that payment to the 
 landlord in kind is as much rent as payment in specie ; 
 but the prevalent notion amongst the people and 
 the general practice with reference to nij-jot lands 
 are more in harmony with the rule laid down by 
 the sage Vrihaspati. Wherever the Rent Acts have 
 not made much impression, a cultivator holding land 
 on terms of payment in kind, has not, in practice, that 
 amount of stability as an occupancy-raiyat ought to have, 
 but is liable to be ejected at the end of any agricul- 
 tural year. The principle that underlies the rules laid 
 down in the Acts of 1859, 1869 and 1885 is that the 
 proprietor is entitled to hold and cultivate nij-jot^ 
 sir, or zirat land by hired labour in any year he 
 pleases. The mere occupation for a number of years 
 by a raiyat does not make the land raiyati, and 
 deprive the landlord of the right of re-entry at the 
 end of any agricultural year. The raiyat cannot 
 acquire a right of occupancy or even the status of 
 a non-occupancy-raiyat simply by occupation and 
 
 * Um\J\ q^HTii A\ ^^{mr^ ^T^Tf ^: I— Parasara Smriti, Cal- 
 cutta A. S Publication, Vol. 111., p. 231. 
 
 ^ W^T'^T?^?!: ??tTT^«lJi »ZflcI qg^i^ I 
 
 'Simai*?? NhTUtI flJ^^n^Ti^ rl??TS»i7i; II '''"".isarii Smriti, Calcutta 
 A. S. Publication, Vol 111, p. 231.
 
 IN WHAT LANDS? 3^3 
 
 payment of rent, as he may with respect to ordinary 
 raiyati lands/ 
 
 But notwithstanding that a piece of land was An excep- 
 originally the private land of the proprietor, he may 
 by his conduct waive his right to hold it as non- 
 r^ij^/'/ and may make it raiyati The Settlement Reg- 
 ulation' included in the assessment of land-revenue 
 the profits of nankar, kJiamar, nij-jot and other private 
 lands as of ordinary inalgoozari or raiyati lands. This 
 Regulation did not lay down any rules as to the 
 rights of the 1 and-lord with respect to these lands in 
 relation to the raiyats. The words of the Regulation, 
 however, are clear, as indicating a distinction between 
 itialgoozari ov raiyati \din<\r, and non-malgoozari or non- 
 raiyati lands. The Rent Acts provide that if any land, 
 being nij-jot^ khamar or sir, has been held under a lease 
 for a term of years or under a lease from year to year, the 
 raiyat does not acquire therein a right of occupancy or 
 the right of a non-occupancy raiyat.^ But if the holding 
 of the land by the tenant be for other than for a term 
 of years or from year to year, it is impressed with the 
 character of ordinary raiyati land, and the tenant may 
 acquire a right of occupancy therein.* 
 
 Questions of difficulty frequently arise in determin- Distinaion 
 
 ing whether any particular piece of land in a villa<je ,!;!^^x^" j 
 t> J V tr & raiyati and 
 
 is raiyati or non raiyati. It is always to the benefit non-raiyati 
 of the raiyats that it sliould be declared to be a 
 part of the raiyati lands of tlie village, while the pro- 
 prietor would have as much non-raiyati land as is 
 possible. The burden of proof is on the landlord, the 
 presumption of law being that no land is khamar, 
 sir or nij-jot, until the contrary is proved. ^ It is 
 
 > Aft VIII of 1885, Sec. 116. = Reg. VIII of 1793, Sec. 39. 
 
 ' AaX of 1859, Sec. 6; Aft VIII ( B. C. ) of 1869; Aft VIII of 
 1885, Sec. 116. See Bhugwan %. Jugmohun, 20 W. R. 308 ; Shaikh 
 Ashruf V. Ram, 23 W. R. 288. 
 
 * Gour 1;. Beharee, 12 W. R. 277. 
 
 ^ Aa VIII of 1885, Sec. 120, Sub-Sec. 2.
 
 3»4 RAIYATS. 
 
 not easy, however, to give evidence as to the character 
 the land had at the date of the Permanent Settlement; 
 and the Bengal Tenancy Act has accordingly laid down, 
 in section 120, rules for determining what lands should 
 be considered to be private. Under that section, cultiva- 
 tion by the proprietor himself with his own stock or by 
 his own servants or by hired labour for twelve continuous 
 years immediately before the passing of the Act, if 
 cultivated as khamar &c., is suf^cient evidence for 
 proving any piece of land to be private. Recognition 
 by village usage, even if the land is ordinarily let 
 out to tenants, is also sufficient to make any piece of 
 cultivated land khajnar, nij-jot, or sir. Local custom or 
 village usage is undoubtedly very good evidence as to 
 the character of any land, in the absence of other direct 
 and reliable evidence, 
 n . , , J The Bengal Tenancy Act, you will notice, speaks 
 
 Private lands ^ ■' •' ^ 
 
 belonging to only of the private lands of proprietors, i.e., persons 
 holders Owning an estate or part of an estate.* The Rent 
 
 Acts of 1859 and 1869 spoke of "the proprietor of 
 an estate or tenurel^ and they evidently meant tenure- 
 holders who succeeded in obtaining leases of entire 
 villages including raiyati 2i%\\^\\ as non-raiyati lands. 
 The character of any piece of land should not change 
 by the mere transfer by the proprietor of his right by way 
 of a piitni or leases of a similar nature. An ijaradar 
 or a thiccadar holding a village, would, by virtue of his 
 lease, have the same sort of right in the private land of 
 the proprietor as the proprietor himself. By the ex- 
 pression, "prt)prietor's private lands," used in the Bengal 
 Tenancy Act, we are not to understand that only 
 persons who are proprietors within the meaning of 
 the Act are capable of having private lands; the 
 expression refers only to the origin, />., the nature of the 
 land as held at the time of the Permanent Settlement, — 
 
 ' Aft VIII of 1885, Sec. 3, cl. (2).
 
 HOW ACQUIRED ? 325 
 
 nij, nij-jot^ sir, zirat, khamar, ka?nat, as distinguished 
 from mal^oozari or raiyati lands. 
 
 The Bengal Tenancy Act has also made an exception Chur and 
 to the acquisition, in the ordinary mode, of occupancy right 
 in chur and dearah lands.' Chur or dearah is a piece of 
 new-formed land by the action of the sea or a river. The 
 Bengal rivers frequently shift their courses, and the for- 
 mation of islands in the midst of rivers is not unfrequent. 
 Under the provisions of Regulation XI of 1825 and 
 Act IX of 1847, '-'^^ Government officers are required 
 to survey and measure these new-formed lands to enable 
 them to ascertain what rights the Government has in 
 them, and to assess them when necessary. Such surveys 
 are technically known as dearah. These lands are 
 under the frequent risk of being diluviated, and they 
 are also temporarily unculturable by reason of their 
 being low or sandy. The Legislature has, therefore, pro- 
 vided that the mere fact of occupation of such lands as a 
 raiyat by a settled raiyat '\% not sufficient to create any 
 right of occupancy in them. Chur or dearah lands may, 
 however, in due course of time be so permanent in 
 character that the Collector of a district may deem it 
 proper '.to declare that they have ceased to be chur 
 or dearah, and then a cultivator may acquire a right of 
 occupancy in them in the same way as in any other land." 
 
 Under section 6 of Act X of 1859 and Act VIII(B.C.) j^j^j^^ ^^^^5^^ 
 of 1869, the acquisition of the right depended upon ed by occupa- 
 possession for a period of at least twelve years and twelve years, 
 payment of rent, the material words used being — " in the 
 land so cultivated or held." The right could be acquired 
 only in the particular piece or pieces of land held and 
 cultivated by a raiyat for the required number of 
 years. The Bengal Tenancy Act has made a material 
 addition as to the means of the acquisition of the right, 
 
 ' Aft VIII of 1885, Sec. 180. 
 
 ^ Aa VIII of 1885, Sec. 180, Sub-Sec. 3.
 
 126 
 
 RAIYATS. 
 
 except as to utbandi, chur or dearah lands. A settled 
 ;-^//^/ may now acquire the right in any land held by 
 him in the village in which he is such a raiyat, even if 
 the period of occupation be much shorter Llian twelve 
 years.' For him, occupation for twelve years is not 
 necessary. As soon as he touches a piece of land as a 
 raiyat, he acquires an occupancy-right in it. 
 Pundit Sheo Section 6 of Act X of 1859 and Act VIII ^B.C.j of 
 
 Prokash \. j 86q laid down that a raivat could acquire a right of 
 
 Ram Sahoy ^ ■' _ ^ ^ 
 
 Singh. occupancy, by twelve years' occupation, whether he held 
 
 under a pottah or not, and section 7 made an excep- 
 tion that the provisions of section 6 of the said Acts 
 would not affect " the terms of any written contract for 
 the cultivation of land when it contains any express 
 stipulation contrary thereto." The question as to the 
 effect of occupation under successive written leases for 
 terms of years aggregating to more than twelve years, or 
 under a single lease for a period of more than twelve 
 years was raised in several cases, and there were conflict 
 ing judgments. The matter ultimately came before a 
 Full Bench of the Calcutta High Court in Pundit Sheo 
 Prokash v. Ram Sahoy Singh.'^ "The whole ques- 
 tion," said Couch, C.J., " turns upon what is the mean- 
 ing of an express stipulation, contrary to the raiyat 
 acquiring the right of occupancy. Now where there 
 is a pottah for a fixed term, no doubt at the expiration 
 of that term, the landlord has a right of re-entry upon 
 the land ; and if the raiyat does not give up possession, 
 the landlord may recover the land from him. The land- 
 lord need not re enter upon the land, if he does not 
 think fit ; he may and often does allow the tenant to 
 remain in possession of the land. 1 cannot consider 
 that the right of nr-cnlry which arises by rcison of the 
 expiration of the term named in the potlah can be re- 
 
 Aft Vin of 1885, Sees. 20 & 21. Ante p. 305. 
 17 \V K ,F. n , 62, ST., 8 B. F.. R. 165.
 
 HOW ACQUIRED ? ' 3*7 
 
 garded as an express stipulation that the raiyat shall not, 
 if he occupies the land for more than twelve years, ac- 
 quire the right of occupancy given by section 6." The 
 law, as interpreted in this decision and the other deci- Covenant for 
 sions' that follow it, seems to be, that whether a raiyat "^^ ^" '^' 
 held under a single lease or under different leases follow- 
 ing one after the other, he acquired a right of occupancy 
 in the land so held by him, provided the entire period 
 of occupation exceeded twelve years, and provided there 
 was no express covenant for re-entry by the landlord at 
 the expiration of any one of them. An implied cove- 
 nant for re-entry was not sufficient to defeat the 
 statutory right which could be acquired by a raiyat by 
 twelve years' occupation. An express covenant for 
 re-entry, however, entitled the land-lord to eject the 
 raiyat at the end of the term, but if the landlord allowed 
 the raiyat to hold on after the expiration of the term of 
 of the lease, he was entitled to add the period of his 
 occupation under the lease to the subsequent period, and 
 if the total period exceeded twelve years, the raiyat ac- 
 quired a right of occupancy.* Where the landlord show- 
 ed, by his acts and conduct and specially by receipt of 
 rent for any period subsequent to the expiry of the 
 lease, an intention to allow the raiyat to hold over, 
 the tenancy became one from year to year, and as 
 regards raiyati lands, this wms enough to give him the 
 status of an occupancy-rrt;/y^/, as soon as possession 
 for the statutory period of twelve years was com- 
 pleted. But if the landlord showed by some overt 
 act his intention of taking possession on the expiry 
 of the written lease, and merely delayed in bring- 
 ing his suit for ejectment, and did not accept rent from 
 him for any subsequent period, the landlord's right to 
 re-enter was not gone, and he could bring his suit with- 
 
 ' Golam V. Hurish, 17 W. R. 552; Narain v. Munsur, 25 W. R. 155. 
 * EbadutooUah t^. Mahomed, 25 W. R. 114; Mukhtar v. Brojraj, 9 
 C. L. R. 143.
 
 3'8 RAIYATS. 
 
 in twelve years of the date of the termination of the 
 tenancy, when his cause of action arose. ^ The Bengal 
 Tenancy Act has, however, laid down that a raiyat ac- 
 quires the right by occupation for twelve years, whether 
 he holds " under a lease or otherwise." So that he ac- 
 quires the status of a settled raiyat after the continuous 
 holding of land in a village for the period of twelve 
 years, whether there is a covenant for re-entry or not. 
 He may hold one piece of land for five years, another 
 for four and a third for three, and he then becomes a 
 settled raiyat, and has a right of occupancy in any 
 piece or pieces of land so held by him either at the 
 end of or subsequent to the twelve years. As we have 
 seen, the Legislature has imported the idea of a khod- 
 kast raiyat. and has given his status to any person holding 
 any land in the village for a continuous period of 
 twelve years, notwithstanding that the particular pieces 
 of land held by him have been different at differ- 
 ent times. Section 178 of the Bengal Tenancy Act, 
 sub-section i, clauses {a) and (3), has laid down a rigid 
 rule as to contracts made before or after the passing 
 of the Act, and occupation, as provided for in sections 
 20 and 21, creates aright of occupancy, and nothing in 
 any contract shall bar the acquisition of, or take away, 
 the right. A covenant for re-entry will not entitle the 
 landlord to eject a tenant from the land held by him, and 
 there is no provision in the Act for the ejectment of a 
 settled raiyat on the expiry of the term of his lease, 
 the law limiting the grounds of ejectment to those 
 contained in section 25 of the Act only. Such a cove- 
 nant for re-entry is now invalid and is not enforceable. 
 A tenant acquires the status of a non-occupancy 
 raiyat as soon as he is admitted to the occupation 
 of any piece of land, and a right ol re-entry is not easily 
 enforceable by the landlord. 
 
 Kjibeel v. Radha, 16 W. R. 146,
 
 HOW ACQUIRED ? 3^9 
 
 In Thakooyanee Dossee v. Bisheshiir Mookerjee^ the Holding part. 
 High Court held that the holding of land for twelve \^^ll^'l^lf 
 years, whether wholly before or wholly after, or the passing 
 partly before and partly after the passing of Act X of Aft. 
 1859, entitled a raiyat to a right of occupancy, and 
 the Bengal Tenancy Act has expressly laid down the 
 same rule of law in the words, " wholly or partly before 
 or after the commencement of this Act."^ A raiyat 
 is also entitled to the benefit of the occupation by his 
 father or other person from whom he has inherit- 
 ed. "A person shall be deemed to have held as a 
 raiyat any land held as a raiyat by a person whose 
 heir he is."^ 
 
 The continuity of a raiyat's occupation may, however, Dispossession 
 be broken by wrongful action on the part of the landlord, ^^ landlord, 
 such as forcible ouster. In such a case the landlord, after 
 the tenant has recovered possession by a suit or other- 
 wise, ought not to be allowed to take advantage of his 
 own wrongful act, and say that the continuity has 
 been broken and no right of occupancy has been ac- 
 quired.* So, also, if the landlord enters into the land 
 after alleged abandonment by the tenant, and the tenant 
 afterwards succeeds in recovering possession by a suit 
 under section 87 of the Bengal Tenancy Act, the latter 
 shall not lose his right of pleading continuity of posses- 
 sion, notwithstanding that he has intermediately been 
 out of possession for more than a year. 
 
 When land is held by two or more co sharers as Holding by 
 
 co~sn3.r6rs 
 
 a raiyati holding, each of them holds as a raiyat and 
 
 ' B. L. R. ( F.B. ) 202, sc, 3 W. R , ( Aa X. ) 29. 
 » Aa VIII of 1885, Sec. 20, Sub-Sec. i. 
 
 • Aa VIII of 1885, Sec. 20, Sub-Sec. 3. And see Aa X of 1859, 
 Aa VIII (B. C, ) of 1869, Sec. 6. Watson v. Shurut, 7 W. R. 395; 
 Ninnchand v. Mooraree, 8 W. R. 127 ; Lai v. Solano, I. L. R. 10 Cal. 45, 
 sc, 12 C. L. R. 559. 
 
 * Aa VIII of 1885, Sec 20, Sub-Sec. (6). Lutteefunnissa v. Poolin 
 Beharee, W. R., Sp. Vol., (F.B. ) 91 ; Mahomed Gazee v. Noor Maho- 
 med, 24 W. R. 324. 
 
 P(I)
 
 J30 RAIYATS. 
 
 acquires a right of occupancy.^ The mere fact of joint- 
 holding by a number of persons does not prevent the 
 right as to the entire land growing in any one of the 
 joint tenants or tenants in common. The decisions under 
 Acts X of 1859 and VIII ( B. C. ) of 1869, however, are 
 not uniform, as indeed they do not expressly lay down 
 any rule as to the right of one out of a number of 
 tenants holding jointly.^ 
 Holding of ^g regards the private lands of proprietors when held 
 
 private lands . ° ... . 
 
 by raiyats, the acquisition of the right does not depend 
 merely upon occupation and payment of rent for twelve 
 years as in the case of ordinary raiyati lands. The right 
 cannot be acquired, when such lands are held " under a 
 lease for a term of years or under a lease from year to 
 year."* It would seem, specially having regard to the 
 provisions of section 178 of the Bengal Tenancy Act, 
 that the Legislature has not thought proper to impose any 
 restrictions on contracts of leases of non-raiyati lands. A 
 lease for a term of years, whether there is any express 
 covenant for re-entry or not, entitles the landlord to re- 
 enter his private lands ; and whether the raiyat holds 
 under one lease or successive leases, possession for twelve 
 years gives him no right to hold on. No right of occu- 
 pancy accrues, if the holding is under leases renewed 
 year after year, whether they are verbal or written.* 
 Effea of non- Non-payment of rent does not bar the acquisition 
 
 ^reir^ of ^^^ rig'it,* neither does it involve the forfeiture 
 
 of the right when once acquired." Under Act X of 1859, 
 
 ' Aa VIII of 1885, Sec. 20, c\. 4 
 
 « Sheikh Mahomed v RamprasiH, 8 B L. R 338; A.J. Forbes v. 
 Ramlall, 22 W. R. 51. 
 
 * Aa Xof 1859. Sec 6; Aa VIII (B.C.) of 1869, Sec. 6 and Aa VIII 
 of 1885, Sec. 116. Gourhiiree v. Beharee, 12 \V. R. 277; Hurish v. 
 Gunga, 25 VV. R. 181. 
 
 * Goiir V Beharet-, 12 W R. 277, sc, 3 B. L. R. Ap|). 138 ; Bhugvvan 
 V. Jiigniohun, 20 W. R 308; Ashnif v. Ram Kishore, 23 W. R. 288. 
 
 * N^rain v. Opnit, I. I, R. 9 Cal. 304, sc, ti C. L. R 417 
 
 " Musyatulla v. Noor/.ahan, I. L. R. 9 Cal. 808 ; Brojendro v. 
 Hungo, 12 C. L. R. 389; Nilinony v. Sonatun, I. L. R. 15 Cal. 17.
 
 DUTIES AND LIABILITIES Of AN OCCUPANCY RAIYAT. 331 
 
 the High Court held that when a tenant had held for a 
 period of twelve years as a raiyat, non-payment of 
 rent for some years did not extinguish the right. In 
 Narain Roy v. Opnit Missey\ it was held that for the 
 acquisition of a right of occupancy, only two conditions 
 were necessary —(i) the cultivation or holding of land 
 for a period of twelve years, and (21 that the person 
 holding or cativating land should be a raiyat. Non- 
 payment of rent might be a valid ground for holding that 
 the land was held not by a raiyat but by a trespasser. 
 The maintenance of the right is dependent upon pay- 
 ment of rent but not the acquisition of it. But the 
 failure of a tenant to pay rent only entitled the landlord 
 to re-enter by ejectment under the provisions of section 
 78 of Act X of 1859 and section 52 of the Bengal Act VIII 
 of 1869, the tenant having under them the right to protect 
 himself by the payment of the arrears and costs within 
 fifteen days of the date of the decree. Non-payment of 
 rent before suit did not by itself cause a forfeiture of the 
 right of occupancy already acquired by a raiyat. 
 
 During the continuance of the relationship of land- Raiyat's duty 
 11, , . , r . , • to pay rent, 
 
 lord and tenant, the main duty of an occupancy-raiyat i^ 
 
 to pay his rent regularly, as indeed it is the primary duty 
 of all tenants to their landlords. The rate of rent is 
 generally determined by contract, and in the absence 
 of a written contract, oral evidence is always ad- 
 mitted. If a written lease exists, it is provable in 
 the ordinary way. Unless the contract has been en- 
 tered into, subsequent to the passing of the Bengal 
 Tenancy Act, rent is payable at the contract rate, if the 
 contract is otherwise valid. But if the contract is one 
 executed after the Bengal Tenancy Act came into force, 
 and, in districts where that Act prevails, the contract rate 
 must be evidenced by a written instrument duly regis- 
 tered by the tenant, if the rent payable is higher than 
 that paid before. The enhanced rate must not also ex- 
 
 ' I. L. R. 9 Cal. 304, sc, II C, . R. 417.
 
 331 RAIYATS. 
 
 ceed the rent previously payable by more than two 
 annas in the rupee, i.e., one-eighth. No rent at enhanced 
 rate is also allowable for fifteen years from the date of 
 the previous enhancement.^ A contract in contravention 
 of any of the special provisions as to occupancy-raiyats 
 is invalid in law, and a suit for rent on such a contract 
 is liable to be dismissed, except as to the rent previous- 
 ly payable. But any arrangement in settlement of a 
 dispute as to the amount and character of the rent is 
 not rendered invalid by the operation of the Act,* nor 
 is the landlord debarred from recovering rent at an 
 enhanced rate, when it has been actually paid for a 
 continuous period of not less than three years im- 
 mediately preceding the period for which rent is 
 claimed by the landlord.^ The contract is not also 
 invalid, if the enhanced rent is payable on account of 
 an improvement effected at the expense of the landlord, 
 and the improvement exists and substantially produces 
 its estimated effect.* If the productive power of any 
 piece of land has been increased by any work carried 
 out under the provisions of the Bengal Drainage Act 
 of 1880* the landlord is entitled to enhanced rent 
 in accordance with the valuation under the Act, and the 
 restriction imposed by the Bengal Tenancy Act does 
 not apply. It is valid, when the land has been held 
 at a specially low rate of rent, in consideration of 
 the cultivation of any particular crop, such as indigo, 
 for the convenience of the landlord." These provis- 
 ions in the Bengal Tenancy Act restraining the right 
 of free contract are intended for the wisest purpose 
 — the protection of the weak and the unlettered from 
 the strong hand of the landlord. 
 
 ' Aft VIII of 1885, Sec. 29, els. (b) and (c). 
 
 • Sheo V. Ram, I. L R. 18 Cal. 333. 
 
 ' Aa VIII ol 1885, Sec. 29, proviso (i). 
 
 • Ibid, proviso (2). 
 
 • Aft VI( B.C. ) of 1880, Sec. 42 (a). 
 
 * Aa VIII of 1885, Sec. 29, proviso (3).
 
 INSTALMENTS. 333 ' 
 
 If no written contract exists, the amount of the Amount of 
 tenant's annual rent payable in any particular year is ''^"'• 
 generally the rent paid in the last preceding agricultural 
 year.^ Oral evidence of enhancement of rent, even when 
 it is admissible, is seldom believed. The landlord 
 generally attempts to prove that rent has been in previ- 
 ous years paid at the rate claimed. Oral evidence is 
 usually supplemented by zemindari papers known under 
 various names •.—jumtnabandis, jumniawasils, thokas, 
 karchas, shehas, &€., and now-a-days, check counter- 
 foils. The question of the admissibility of these papers, 
 their use as corroborative evidence and the mode of 
 proving them properly fall within the scope of the Law 
 of Evidence. 
 
 Rent is usually payable in instalments, though pay- instalments, 
 ment in one lump sum at the harvest time or at the end 
 of the agricultural year is not uncommon. The instal- 
 ments are regulated by agreement or established usage." 
 An agreement as to instalments need not be evidenced 
 by a written instrument. Where no agreement is proved 
 or is provable, established usage of the perganah or the 
 local area in which the holding lies, and not the practice 
 of payment by the raiyat for a long series of years in 
 proof of local usage, may be proved.^ If there be an 
 agreement or local usage for payment in monthly instal- 
 ments, rent is recoverable monthly, notwithstanding 
 that the practice with reference to a long period or any 
 particular person has been different.* The Bengal 
 Tenancy Act has made rent payable in quarterly in- 
 stalments with reference to the agricultural year, if 
 
 ' Aa VIII of 1885, Sec. 51. EnayutooUah 7;. Elaheebuksh, W. R., 
 1864, ( Aa X) 42 ; Jumaut AH v. Chutturdharee, 16 W. R. 185 ; Tara 
 V. Ameer, 22 W. R. 394. 
 
 » Aa X of 1859, Sec. 20; Aa VIII (B.C.) of 1869, Sec. 21 and Aft 
 VIII of 1885, Sec. 53. 
 
 • Chytunnov. Kedar, 14 W. R. 99; Hira v. Mothura, I. L. R. 15 
 Cal. 714 ; Watson v. Sreekristo, I. L. R. 21 Cal. 132. 
 * Fearee v. Brojo, 21 W. R. 36 ; 22 W. R. 428.
 
 334 RAIYATS 
 
 there be no proof of an agreement or established usage.^ 
 A decree for rent at any previous period, in which the 
 question of instalments as based upon an agreement 
 or established usage was decided, is very good evidence, 
 and may be used between the parties, but if the 
 decree directed payment at the end of the year without 
 any finding as to intermediate instalment based on 
 any agreement or established usage, it is not suffi- 
 cient evidence to override the law as laid down in 
 the Bengal Tenancy Act.* Under the Acts of 1859 and 
 1869, rent, in the absence of any contract or established 
 usage to the contrary, was payable annually at the end 
 of the agricultural year. 
 „., . . Rent becomes due at the last moment of the time 
 
 W here is rent 
 
 payable. which is allowed to the tenant for payment, which is 
 
 the sunset of the day on which an instalment falls 
 due.' It is ordinarily the duty of the tenant to tender 
 payment at the malcutchery or village ofifice of the 
 landlord.* If no payment is made at or before the time, 
 the amount payable becomes an arrear of rent.® 
 
 Interest is payable on arrears of rent. The rate 
 of interest is generally regulated by contract which 
 may be either written or verbal. If there be no con- 
 tract, evidence may be given of local usage or the prac- 
 tice for a long series of years. But wherever the Bengal 
 Tenancy Act prevails, no contract, entered into subse- 
 quent to the passing of the Act (14th March 1885), for 
 payment of simple interest at a rate higher than twelve 
 per centum per annum is valid.' If the contract was en- 
 tered into before that date, interest is payable according 
 
 ' Aft VIII of 1885, Sec. 53; Hemanf.-i Kuin.ni v. J;igadindra, I. L R. 
 32 Cai. 214. 
 
 • Aft VIII of 1885, Sec. 53. 
 
 • Knshi V. Roliini, I. L. R. 6 Cal. 325. 
 
 • Aft VIII of 1885, Sec. 54 (2). 
 
 • Aft VIII nf i8S<5, Sec. 54 (3). 
 
 • Aft Vll! o( 1885, Sec. 178, Sub-Sec. 3, cl. (h). 
 
 Interest.
 
 TO WHOM IS RENT PAYABLE ? 
 
 335 
 
 to the contract. In the absence of evidence as to contract 
 or local usage, interest at twelve per centum per annum 
 was payable under Act X of 1859, though it was discre- 
 tionary with the Court in any case to allow it or not.' 
 The Bengal Tenancy Act has taken away the discretion, 
 and interest at twelve per centum per annum is always 
 leviable, if there is no contract or local usage to the 
 contrary. If no contract or local usage be proved, 
 interest is payable from the expiration of each quarter 
 of the agricultural year in which the instalment falls 
 due.* But the rule is subject to the proviso to section 
 53 of the Bengal Tenancy Act. 
 
 The Court may, in substitution of interest, award Damages 
 damages not exceeding twenty-five per centum on the 
 amount of the principal rent decreed. But there can be 
 no decree for both interest and damages.^ 
 
 The rent and interest or damages are payable to the ^,,q ;s (},£ 
 landlord, but the question frequently arises — Who is ""ent receiver? 
 the landlord ? You have already seen that a tenant, 
 holding even under a trespasser, acquires a right of oc- 
 cupancy, and the true owner of the land cannot eject 
 him, but he is entitled only to rent.* Succession and 
 transfer, and devolution of interest in the various ways 
 recognised bylaw are frequent; forcible ouster of the 
 true landlord is also not unfr< queiit. Boundary disputes 
 between adjoining landlords are also very common. 
 Thus the difficulty of finding out the true landlord is 
 sometimes very great. You will frequently meet with 
 cases, especially of chiir lands, in which you will find 
 the raiyats choosing their own landlords and changing 
 them as often as they please. 
 
 ' Kashee ■». Mynuddeen, i W. R. 154; Radhika v. Urjoon, 20 W.R. 
 128 i Beckwith v. Kisto, Marsh 27S. 
 
 "^ Aa VIII of 1885, Sec. 67. 
 
 » Aa VI ( B.C. ) of 1862, Sees. 2 and 3 ; Aa VIII ( B. C. ^ of. 1869, 
 Sees. 44 and 45; Aa VIII of 1885, Sec. 68. Nobo v. Baroda, i W.R. 100.' 
 
 * Ante pp. 314-315-
 
 33^ RAIYATS. 
 
 Registered Where the holding of a raiyat is directly under a 
 
 Aft VlT"^^' Proprietor (as the word is defined in the Bengal 
 ( B.C. ) of Tenancy Act), and is a part of an estate, rent is 
 payable to the person whose name is registered under 
 the Land Registration Act of 1876/ Not only is 
 an unregistered proprietor not entitled to sue for 
 rent, but the Bengal Tenancy Act lays down that 
 a person liable for the rent is not entitled to plead, 
 in defence to a claim by the person so registered, that 
 the rent is due to any third person.^ The raiyat has 
 only to go to the Collectorate of the district and enquire 
 who the person is whose name is registered in the 
 Collector's Register, and he is bound to pay him rent, 
 and is by such payment fully indemnified against the 
 claim of any other person. No question of title can, 
 therefore, arise in a rent suit by a registered proprietor. 
 Registration under Act VII ( B.C. ) of 1876 was not 
 sufficient to give a title to claim or recover rent under 
 the Act of 1859. It was necessary to prove the relation- 
 ship of landlord and tenant by other evidence.^ 
 Intermediate Intermediate tenure-holders are not under any dis- 
 
 holders. ability with respect to the realization of rent from raiyats, 
 
 on account of the non-registration of their names in the 
 books of their superior landlords. But in districts in 
 which the Bengal Tenancy Act has operation, and the 
 person suing for rent is an heir of the last recorded 
 permanent interm.ediate holder or a transferee from him, 
 registration in the landlord's office is necessary. The 
 person succeeding to a permanent tenure is not entitled 
 to recover rent by suit or any other proceeding under 
 the Act, until the Collector of the District has received 
 the notice and fees proscribed in it.* But the rule does 
 not apply when the succession opened out before the 
 Act came into force.* 
 
 ' Aft Vn ( n C. ) of 1876, Sec. 78. » Aa VIII of iSSs, Sec. 60. 
 
 • Rnm V. ShtiUh Harain, I. I.. R. 9 Cal. 517. 
 
 • Aft Viil of 1885, Sees. 15 and 16. 
 
 • Prolullah v. Samiruddin, I. L. R. 22 Cal. 337.
 
 TO WHOM IS RENT PAYABLE? 337 
 
 As the law at present stands, the following rules Rules for 
 may be laid down for determining whether the relation- determining 
 
 , . , , 1, 1 1 i , . the relation- 
 
 ship or landlord and tenant exists : — ship of land- 
 
 (a) If the raiyat holds under a duly registered l"*"^ ^"^ 
 
 ^ , ■' J i3 tenant. 
 
 lease, or a written lease admissible without registra- 
 tion, the lease itself, prima-facie, proves the rela- 
 tionship, and the raiyat is bound to pay rent to the 
 lessor. On the death of the lessor, his legal representative 
 is entitled to the rent, as soon as his name is registered Written 
 
 lease. 
 
 in the superior landlord's office under the provisions of 
 sections 15 and 16 of the Bengal Tenancy Act. In a 
 case of transfer, voluntary or involuntary, or sub- 
 lease by the tenure-holder, proof of transfer or sub- 
 lease entitles the transferee or the lessee to receive 
 rent. But the raiyat, if he has not been induced into 
 the land by the lessor mentioned in the written contract, 
 is always entitled to show that the lessor had no title at the 
 date of the execution of the lease and that another person 
 is entitled to realise rent.^ A raiyat claiming a right of 
 occupancy, even if he has been induced into the land by 
 the lessor, is entitled to show that he took the lease from 
 a wrong person, and that the rent is really payable to 
 another. He is not estopped by the provisions of section 
 116 of the Indian Evidence Act. The burden of proof, 
 however, in such a case is upon the raiyat.- 
 
 {b) Where there is no written lease and no direct 
 
 • 1 f t I - , f 1 e r Proof of pay 
 
 evidence ox a verbal contract of lease, proof of payment mentof rent, 
 of rent in previous years and the conduct of parties may 
 afford very good evidence of the existence of the rela- 
 tionship of landlord and tenant. Payment of rent is 
 the most cogent evidence of an admission of the relation- 
 ship of landlord and tenant. But the raiyat is always 
 
 ' Baney v. Thakoor, 6 W. R., Aft X, (F.B ) 71 ; Kedar v. Mrs. B. 
 Donzelle, 20 W.R. 352; Ranee v. Ranee, 24 W.R. loi ; Lai v. Kallanus, 
 I. L. R. II CaJ. 519. 
 
 " Lodai Mollah v. Rally, I, L. R. 8 Cal. 238. 
 
 Q (I)
 
 33^ 
 
 RAIYATS. 
 
 entitled to show that he has been paying the rent of his 
 holding to a wrong person. Payment of rent is general- 
 ly proved by the production and proof of zemindari 
 papers, such as jumnia-ivasil-baki papers, thokas, kiir- 
 chas, shehas and counterfoils of dakhilas — check fnoories. 
 As to the probative force of these papers^ which are the 
 private papers of the landlord, opinions vary. 
 Pioof of title. (^) Tlie relation-^hip may also be proved by proof 
 
 of title, as the true owner is entitled to rent unless he is 
 out of possession. A raiyat setting up the title of a 
 third person and depositing the rent of his holding 
 in Court is in the position of a plaintiff in an in- 
 terpleader suit, though no tenant is himself entitled to 
 bring such a suit.' In the case of a deposit after suit, the 
 Bengal Tenancy Act has provided that a notice should 
 be served upon the person who is represented to be the 
 true landlord,^ and a title suit between the fjaintiff in the 
 rent suit and such third person decides who is the true 
 rent-receiver.^ If there is no deposit of rent by the raiyat, 
 the third person whose title is set up by him, receives no 
 notice, and the rent suit has to be fought out between the 
 plaintiff and the raiyat. Proof of title is some evidence of 
 the relationship of landlord and tenant. But such proof 
 alone is not sufficient to entitle a plaintiff to get a 
 decree for rent. 
 Possession. (^/j It has sometimes been said that proof of present 
 
 possession is sufficient to entitle a plaintiff to realise rent. 
 This to me is unintelligible, unless present possession 
 and previous receipt of rent are in law synonymous ex- 
 pressions. General evidence of possession by receipt 
 of rent from other raiyats is not relevant in an enquiry 
 as to the relationship of landlord and tenant. 
 Useofland. During the existence of the relationship of landlord 
 
 and tenant, the tenant is entitled to make such use of 
 
 ' Cf Art XIV of 1882. Sec. 474. '' Aa VIII of iS'^s, Sec. 149. 
 
 " /Au/, Sec. 149. See J.igadamba v. Prot;ip, I. L. R. 14 Cal. 537; 
 Rubiunnessa v Gooljan, I. L. R. 17 Cal. 829.
 
 HOW IS OCCUPANCY-RIGHT EXTINGUISHED. 339 
 
 the land as is consistent with the original purpose of the 
 tenancy/ He is not entitled to change the character of 
 the land, so as to make it unfit for the purpose for which 
 the tenancy was created. But he is entitled to make 
 improvements under the rules laid down in the Bengal 
 Tenancy Act, Chapter IX.^ 
 
 Rent may be realized by distraint or by suit instituted Modesofreal- 
 under Chapter XHI of the Bengal Tenancy Act. The '^'"g ^^"t- 
 provisions about distraint are applicable only to arrears 
 of the current year.^ A suit for rent is entertain- 
 able for the arrears of the current year and those of back 
 years, the rule of limitation being three years from the last 
 day of the Bengali year in which the arrear falls due where 
 that year prevails, and the last day of the month of Jeyt 
 of the Amli or Fasli year in which the arrear falls due, 
 where either of these latter years prevails.* 
 
 Under the Rent Acts of 1 859 and 1 86g, the right of an How may oc- 
 
 occupancy-raiyat could be determined for non-payment be extin. 
 
 of rent, for the breach of any condition of the contract guished. 
 
 of lease express or implied, by denial of the landlord's 
 
 title, by surrender, by abandonment and by merger. 
 
 I have already dealt with cases of non-payment of ^, 
 
 •^ ... Non-payment 
 
 rent and breaches of conditions, as well as disclaimer.® of rent &c. 
 
 Surrender and abandonment are extremely rare. Surrenderand 
 To avoid the difficulties which frequently arise on pleas abandonment. 
 of relinquishment and abandonment by tenant, the 
 Bengal Tenancy Act has made special provisions in 
 sections 86 and 87.^ 
 
 The transfer by a raiyat of a non-transferable right g^^^ ^j 
 of occupancy is not only invalid, but it extinguishes the transfer 
 right itself. The transferor is supposed to have aban- 
 doned the holding, and the transferee acquires no right 
 under the void contract of sale and is considered to be 
 a trespasser. Sir Richard Couch observed in the Full 
 
 ' Cf. Aa VIII of 1885, Sec. 23. ' Vide pp. 300— 30J. 
 
 « Aa VIII of 1885, Sec. 121. 
 
 * Aa VIII of 1885, Schedule III, Art. 2. ' Vide p. 307.
 
 34° 
 
 RAIYATS. 
 
 Nurendro Bench cRse of Niirendro Narain Roy v. Ishan Chunder 
 
 Narain Roy ^gj^ — << \[ ^ raiyat having a right of occupancy endeav- 
 
 V. Ishan r-^, ,i \ • c . •. 
 
 Chunder Sen. ours to transfer it to another person, and, in tact, quits 
 liis occupation, and ceases himself to cultivate or hold 
 the land, it appears to me that he may be rightly con- 
 sidered to have abandoned his right, and that nothing 
 is left in him which would prevent the zemindar from 
 recovering the possession from the person who claims 
 under the transfer. And not only may he be considered 
 to have abandoned it, but if the right which is given by 
 the law is one which exists only so long as he holds or 
 cultivates the land, when he ceases to do that by selling 
 his supposed right and putting another in his place, his 
 right is gone and cannot stand in the way of the land- 
 lord's recovering possession. If it were not so, the law 
 would become nugatory. The position of things would 
 be that the transfer by the raiyat is invalid, and gives 
 the transferee no right to the possession, but the raiyat 
 could not recover possession from the transferee as he 
 would be bound by his act of transfer; nor could the 
 landlord recover possession because the outstanding 
 right in the raiyat would be in his way. The result 
 would be that although the transfer is invalid, the trans- 
 feree would be able to keep possession and to set the 
 landlord at defiance."^ This was a case under the Act of 
 1869, but it has been followed in cases under the Bengal 
 Tenancy Act, notwithstanding that under the latter 
 Act an occupancy-raiyat has not ujerely the right to 
 hold and cultivate but has a higher right — freedom 
 from ejectment for non-payment of rc?nt and a right to 
 the surplus sale-proceeds on a sale for arrears of rent. 
 Even if the transferor continues to hold the land but 
 as a lessee under the transferee — as an under-raiyat, 
 there is an extinguibhment of the right of occupancy. 
 
 ' 22 W. R 22, sc, 13 B. L. R. 274. See Kalee v. Ram, 9 W. R. 344; 
 Dwarka v. Hurrish, I. L R. 4 Cal. 925: Kripa v. Durga, I. L. R. 15 
 Cal. 89.
 
 HOW IS OCCUPANCY-RIGHT EXTINGUISHED. 341 
 
 The transfer, however, of a portion of a holding does not Transfer of a 
 extinguish the right of the transferor to the whole or P^""'- 
 even the part of the holding thus transferred. Such an 
 act on the part of the tenant is not deemed to be an 
 abandonment, so as to entitle the landlord to re-enter.^ 
 
 Where a transfer without the landlord's consent is Registration 
 
 ,. 1 ,. , , ,1 , , . of transfers 
 
 valid according to custom or local usage, the registra- and notice, 
 tion in the landlord's office of the name of the trans- 
 ferree is necessary for the benefit of all parties con- 
 cerned. The landlord ought to know who is the person 
 in actual occupation as raiyat ; the raiyat who has sold 
 his holding ought to be freed from liability for rent after 
 the cessation of his interest, and the transferee should 
 have the advantage of having notices of suits for arrears 
 of rent. The Rent Acts of 1859 and 1869 required the 
 registration of the names of intermediate holders be- 
 tween the zemindar and the raiyat, but not of raiyats,* 
 though it was held in some cases that the registra- 
 tion of the names of raiyats was necessary. The law 
 as to tenure holders was frequently misapplied to the 
 cases of raiyati holdings. The Bengal Tenancy Act has 
 now provided — "When an occupancy-raiyat transfers his 
 holding without the consent of the landlord, the trans- 
 feror and transferee shall be jointly and severally liable 
 to the landlord for arrears of rent accruine due after 
 the transfer, unless and until notice of the transfer is 
 given to the landlord in the prescribed manner,"^ 
 The notice of transfer is thus essentially necessary to 
 relieve the outgoing tenant, and it would seem that, 
 until such notice is served in accordance with the rules 
 
 ' Debiniddi v. Abdur, I. L R 17 Cal. 196; Kabil v. Chunder. I.L.R. 
 20 Cai. 590 Bansi alias Raghu v. Jagdip, I. L. R. 24 Cal. 152; 
 Durga V. Doula, i C. W N. 160; Kali i*. Kumar Upendra, i C. W. N. 
 163; Sri Maharajah Krisan v. Mr. J. R. Tripe, I C. W. N. cclxxix. 
 
 '' Aa VIII (B.C.Iof 1869, Sec. 26. Sutteesh v. Muddoo, W. R., 
 1864, ( Aft X ) 94 ; Uma v. Hari, i B. L. R. S. N. 7, sc, 10 W. R. lOi. 
 
 ■' Aa VIII of 1885, Sec. 73.
 
 342 
 
 RAIYATS. 
 
 prescribed by the Local Government in that behalf, the 
 landlord is not bound to recognise the purchaser as his 
 tenant, and any action against the original tenant will 
 bind the purchaser notwithstanding that he is not a 
 party to it. The due service of notice on the landlord 
 operates as registration in the landlord's office, and no 
 suit for registration is, therefore, necessary/ 
 Merger. Extinguishment of the right of occupancy by 
 
 merger is provided for in section 22 of the Bengal 
 Tenancy Act. Under the Rent Acts of 1859 and 1869, 
 there was no legal bar to the two rights, the right of a 
 tenure-holder and occupancy-right —being in the same 
 individual. But section 22 of the Bengal Tenancy Act 
 provides that when the immediate landlord of an occu- 
 pancy holding is a proprietor or permanent tenure- 
 holder, and the entire interests of the landlord and the 
 raiyat in the holding become united in the same person 
 bv transfer, succession or otherwise, the occupancy- 
 right shall cease to exist. If the right is trans- 
 ferred to a person jointly interested as proprietor or 
 permanent tenure-holder, it shall also cease to exist. An 
 ijaradar or farmer of rents shall also not acquire a right 
 of occupancy in any land comprised in his ijara or 
 
 farm. 
 VVho is a Under the law, unaffected by the provisions con- 
 
 non-occupan- j-^jj^gd }„ the Bengal Tenancy Act, raiyats holding lands 
 at unchanged rates of rent from the time of the Perma- 
 nent Settlement, enjoy the privileges of fixity of rent 
 and freedom from liability to ejectment, and raiyats 
 having rights of occupancy are entitled to hold on from 
 generation to generation as long as they pay rent at 
 fair and equitable rates ; but those who have cultivated 
 or held lands for periods shorter than twelve years are 
 liable to be ejected at the end of any agricultural year, 
 on proper and reasonable notice to quit, unless they are 
 
 ' But SCO Ambika v. Chowdhry, I.I. R. 24 Cal. 642. 
 
 cy raiyat.
 
 NON-OCCUPANCY. 343 
 
 protected by express conditions contained in their leases. 
 Under the Bengal Tenancy Act, however, every raiyat, 
 whatever the class to which he belongs, enjoys protection 
 from eviction, except under certain specified conditions,^ 
 as soon as he is admitted to the occupation of raiyat i 
 land in any village ; and even when lie holds for a term 
 of years under a contract in writing duly registered, 
 he cannot, under any circumstances, be ejected at the end 
 of the term, unless notice to quit has been served on 
 him not less than six months before the expiration of the 
 term and unless a suit for ejectment is instituted within 
 six months from the expiration of the term.^ If he has 
 held for a shorter period than twelve years, the Bengal 
 Tenancy Act calls him '' a non-occupancy raiyat," and he 
 is defined to be — " a raiyat not having a right of occu- 
 pancy in the land held by him.'-' Neither is the 
 expression " non-occupancy raiyat a happy one, nor 
 is the definition strictly logical. As I understand the 
 expression, it means and includes that large class of 
 raiyats holding ralyati lands, who neither hold at 
 fixed rates from the time of the Permanent Settlement 
 nor. are occupancy-raiyats. The Act has not defined 
 the incidents of such a tenancy, except as to protection incidents, 
 from eviction by the landlord and the rate at which 
 rent is payable. It should, however, be remembered 
 that the Act does not pretend to define exhaustively 
 all the incidents of the various kinds of tenancies 
 known in this country. Questions must and do fre- 
 quently arise, which cannot be answered from [^the 
 text of the Bengal Tenancy Act, and lawyers and 
 judges are obliged to have recourse to well-known 
 customs or local usages or customary laws and rules of 
 equity and good conscience. Section 183 of the Act 
 saves the operation of " any custom, usage or cus- 
 
 ' Aa VIII of 1885, Sec. 44 » Aa VIII of 1885, Sec. 45. 
 
 » Aa VIII of 1885, Sec. 4> Sub-Sec. 3, cl.(c).
 
 344 RAIYATS. 
 
 tomary right not inconsistent with or not expressly 
 or by necessary implication inodilieJ or abolished by 
 its provisions." The rules of law prevalent in other 
 countries, especially when they have been adopted in 
 cognate Acts by the Indian Legislature and the earlier 
 decisions of our Superior Courts, very often supply 
 omissions in codified laws. 
 Heritability. The right of a non occupancy-raiyat is heritable, /.t'., 
 
 it descends in the same manner as other immovable 
 property, subject to any custom or local usage to the 
 contrary. But there is a well-recognised rule that 
 if a raiyat dies without any heirs except the Crown, 
 the landlord takes possession. Tenai;cies-at- will are 
 very rare in this country, though they are not unknown, 
 and the customary law or the " common law" of the 
 country (if 1 may borrow the expression) makes all other 
 classes of tenancies heritable. The Transfer of Prop- 
 erty Act, though it does not apply to agricultural hold- 
 ings^ in Bengal, recognises the heritability of the in- 
 terest of tenants, when there is no contract or local 
 usage to the contrary." There is nothing in the Bengal 
 Tenancy Act which takes away heritability from the 
 status of a non occupancy raiyat.^ 
 Transferabil- ^^^ have already seen that an occupancy-raiyat can- 
 
 ity, not, in the absence of custom or usage, transfer his right 
 
 inter-vivos or bequeath it by a testamentary instru- 
 ment.^ It is only reasonable to hold that the right of 
 a non-occupancy raiyat is not also transferable, and 
 I believe the general custom of the country is also to 
 that effect. But local usage may be proved to show 
 that the right of a non-occupancy raiyat is transfer- 
 able. Section 178, sub-section 3, cl. (d) uses the word 
 
 ' Aa IV of 1882, Sec. 117 • Ibid, Sec. 108. 
 
 * Hut sec Karitii v Sundar, I L. R. 24 Cal 207 - With the greatest 
 deference (o the learned judges who decided the case, it seems to me 
 that the judgment is not in accordance with the spirit of the Bengal 
 Tenancy Adt. * Ante p. 299.
 
 NON-OCCUPANCV. 
 
 345 
 
 " ralyat" and not "occupancy raiyat," indicating thereby 
 that the right to transfer may exist in all classes of 
 raiyats. 
 
 A non-occupancy raiyat is liable to be ejected on Ejeament. 
 the ground " that he has used the land in a manner 
 which renders it unfit for the purposes of the tenancy, 
 or that he has broken a condition consistent with 
 the Bengal Tenancy Act and on breach of which he is, 
 under the terms of the contract between himself and 
 his landlord, liable to be ejected." ^ This is also the 
 law as regards occupancy-raiyats."^ The only material 
 difference that seems to exist is that by section 178, sub- 
 section 3, cl. (e), an occupancy-raiyat cannot contract 
 himself out of his right to sublet according to the provis- 
 ions of Chapter VII of the Act, but such a contract of 
 a non-occupancy raiyat with his landlord is not invalid. 
 It seems to me that a non-occupancy raiyat has the 
 right to sublet, subject to the restrictions contained in 
 section 85, but he may be restricted from doing so by 
 the contract of lease. 
 
 The right of a non-occupancy raiyat is not "pro- ^^^ ^^^ ^ 
 tected" on a sale for arrears of revenue of an entire proteaed in- 
 estate under Act XI of 1859 or Act VII (B. C.) of 1868. 
 It is an encumbrance within the meaning of these 
 Acts and the purchaser may avoid it.^ Neither is it 
 a " protected interest" on a sale under Regulation VIII 
 of 1819* or the Rent Acts of 1859 and 1869. But the 
 Bengal Tenancy Act, of which it is a creation, calls 
 " the right of a non-occupancy raiyat to hold for five 
 years at a rent fixed under Chapter VI by a Court, or 
 under Chapter X by a Revenue-officer"* a " protected 
 interest" not liable to be avoided on a sale for arrears 
 of rent. The right is statutory and does not depend 
 
 terest. 
 
 ' Aa VIII of 1885, Sec. 44, cl. (b). 
 
 » Ante p. 304. Aa VIII of 1885, Sec. 25. 
 
 ' Aa XI of 1859. Sec. 37 ; Aa VII (B.C ) of 1868, Sec. i 4. 
 
 * Regulation VIII of 1819, Sec. 11, cl 3. 
 
 * Aa VIII of 1885, Sec. 160, cl (e) 
 
 R(i)
 
 M^ 
 
 RAIYATS. 
 
 upon a grant by the rent-receiver, and like the right of 
 occupancy it may be acquired by holding under a 
 trespasser, and the true owner cannot eject the raiyat 
 on the ground that he has been in luced into the land by 
 a wrong-doer.^ 
 Surrendtrr. As regards the right to surrender, the rule is the 
 
 same as that applicable to occupancy raiyats. He can- 
 not, of course, surrender during the term specified in a 
 duly written and registered contract of lease.* 
 Non-payment A non-occupancy-raiyat can be ejected " on the 
 
 of rent ground that he has failed to pay an arrear of rent."^ 
 
 The law applicable is nearly the same as that laid down 
 in Act X of 1859* and Act VIII [B.C ) of 1869^ as 
 regards occupancy-raiyats. Under section 65 of the 
 Bengal Tenancy Act, an occupancy-raiyat is not liable 
 to ejectment for arrears of rent, but his holding is liable 
 to sale in execution of a decree for such arrears.^ But 
 under section 66 and section 44, cl. (a) of the Act, 
 the landlord is entitled to a deccee for the ejectment of a 
 non-occupancy raiyat for an arrear of rent that remains 
 unpaid at the end of any agricultural year, if the amount 
 of the decree including costs and subsequent interest 
 is not paid within fifteen days from the date of the 
 decree, or when the court is closed on the fifteenth day, 
 on the day on which the court re-opens. 
 
 The expiry of the term of a registered lease may be 
 
 Expiration of i r . i • i. i. r • i. 
 
 term of l.ise. ^ groundfor the ejectment of a non-occupancy raiyat, 
 provided he has been served with a proper notice 
 to quit not less than six months before the expiration 
 of the trrni'' and provided his occupation of the 
 land began under the particular lease.* 
 
 ' Mohinna v. Hazari, I. I.. R. 17 C;il 45 ; Binad v. Kalii I I.. R. 20 
 Cal 708. 
 
 ^ Ante p. 307. Aa Vlll of 1885, Sec. 178, Sub-Sec. 3, cl. (c). 
 ' A.H Vlll of 1885. S(-c. 44, cl.(a). 
 
 • Aft X of 1859, Ser 78 ' A.H Vlll (R C ) of 1869, Sec. 5a. 
 
 • Ai.te p 303 ' A<M Vlll of 1885, Sec. 45. " Il)i<l, Sec. 47.
 
 NON-OCCUPANCY. 347 
 
 In any case the suit must be instituted within six months 
 from the expiration of the term.' If, however, the raiyat 
 was on the land from before the execution of a registered 
 lease, the expiration of the term mentioned therein does 
 not entitle the landlord to re-enter the land, whether 
 the right to re-enter is expressly reserved or not. If 
 the landlord delays in bringing a suit and allows six 
 months to expire from the end of the term, there is 
 an absolute bar to the institution of a suit for ejectment. 
 Thus you see, the grounds of ejectment of a non-occu- 
 pancy raiyat are extremely limited, and unless the landlord 
 is always wide awake and there is a scrambling for land, 
 so that he may change the raiyat after the expiration 
 of the term of a registered lease under which the tenant 
 holds, non occupancy raiyats have always fair chances of 
 acquiring the status of occupancy-raiyats. 
 
 Refusal to agree to pay a fair and equitable rent may Refusal to 
 also be a iiround for the ejectment of a non-occupancy P^y//*""^"^ 
 
 & J i^ -' e quitable 
 
 raiyat. When he first enters into the land, he is bound to rent. 
 
 p iy rent at the rite agreed upon between himself and his 
 
 landlord.* But if at the end of the term of the first 
 
 lease, the landlord, instead of determining the right of 
 
 the raiyat according to the provisions of the Act, chooses 
 
 to retain him as a tenant and asks the court to compel 
 
 the tenant to enter into an agreement to pay rent at a 
 
 higher rate, the court ought not to enforce the 
 
 payment of any rates but such as are just and equitable. 
 
 He is not entitled to the full market-rate or the highest 
 
 rack rent. Whatever the initial rent might have been, the 
 
 court has a right to interfere on a fresh settlement. In 
 
 Bokronath Mmidul v. Binodh Ram Sein^ a Full Bench gokronath 
 
 of the Calcutta High Court held— ' A landlord cannot MunduL y. 
 
 ° 11 Binodh Ram 
 
 recover rent at an enhanced rate from a raiyat who has Sein. 
 not a right of occupancy, unless he proves the existence 
 
 ' Aa VIII of 1885, Sec 45- 
 
 » Aa VIH of 1885, Sec. 42 ; Aft X of 1859, Sec. 8. Sheik v. Roheem, 
 2 Hay 433 , Stee v. Lalla, Marsh 325 ; Syed v. Aghori, 2 B.L R.S.N. 15. 
 » 10 W. R., F. B., Z3S sc; I. B L, R., F. B., 25.
 
 34? RAIYATS. 
 
 and the reasonableness of the grounds stated in his notice 
 served under section 13 of Act X of 1859. Section 13 is 
 applicable not merely to raiyats having a right of occu- 
 pancy, but to all under-tenants and raiyats." Peacock, 
 C.J., observed in the sanie case-" It was contended in 
 argument that the landlord may enhance the rent of a 
 raiyat not having a right of occupancy to any amount he 
 pleases, and may specify any grounds that he pleases, for 
 such enhancement, and that he is not bound to prove that 
 any of such grounds exist, and that it is for the raiyat to 
 prove that no such ground exists. If such an argument 
 were tenable, a landlord might give notice that he intends 
 to enhance to some exorbitant amount, upon the ground 
 that he is a grasping oppressive landlord, having no 
 regard for justice or fair dealing or for the interests of 
 any one except himself. It might be difficult, if not 
 impossible, in many cases for a raiyat to disprove the 
 grounds alleged, by showing that the landlord was not 
 a person of that description. This shows that the 
 grounds must be reasonable and such as to justify the 
 enhancement claimed. The o)ius of proving the exist- 
 ence of the grounds alleged is upon the land-owner. 
 It appears to me that the judges who referred this case 
 came to a right conclusion that a landlord cannot en- 
 hance the rent unless he states the grounds on which 
 he seeks to enhance, and that if those grounds are dis- 
 puted, it will be^for the court to determine whether they 
 exist, and whether they are such as to justify the en- 
 hancement." The Bengal Tenancy Act has amplified 
 the rule and has prescribed further rules for determining 
 what is fair and equitable rent and the procedure 
 which should be observed. 1 propose to deal with the 
 question of the settlement of rent in the next lecture.
 
 LECTURE XI. 
 
 RAIYATS 
 
 ( RATE OF [RENT ), 
 
 In dealing with occupancy right in the last lecture, I Customary 
 omitted to deal with an important matter as to the rate 
 of rent — its enhancement and abatement. The question 
 of the rate of rent is one of vital importance. 
 The first problem is — how was money-rent originally 
 fixed ? Rent in India was never competitive it 
 was customary. The origin of any custom is al- 
 ways difficult to trace, but in this particular in- 
 stance we have some data to go upon. There can It is based on 
 1111 r ^ a" average of 
 
 be no doubt that the essence of customary rent was produce and 
 
 the price of a definite share of the produce,— an average ''^ value. 
 
 of the quantity of the produce and its average selling 
 
 value. An average of ten years' produce was the basis 
 
 of Raja Todar Mai's settlement. Similar bases were 
 
 also adopted in later times, whenever the Mahomedan 
 
 government attempted directly to enhance the rent of 
 
 raiyats in any locality, — a zilla or a perganah — 
 
 whenever it desired to have a permanent increase in 
 
 land-revenue and wished to avoid the indirect method— 
 
 the levying of abwabs. Each given locality or a perganah 
 
 had thus its average rates for the various kinds of lands, 
 
 and every new settlement, whether of abandoned land 
 
 or waste land brought under cultivation, was based 
 
 upon the customary rates of assessment. There was Variation in 
 
 another principle underlying the assessment of rent, the different 
 
 clflsscs of 
 which caused differences in rates amongst the differ- raiyats. 
 
 ent classes of raiyats. There were the village elders,
 
 ^50 RAIYATS. 
 
 the Mandals; there were the ordinary khodkast or 
 resident hereditary cultivators, and there were the pahi 
 or non-resident cultivators. There was a fourth class 
 too, — those who had not, until very recently, much im- 
 portance as cultivators,— -the lowest sub- castes amongst 
 the Siidras themselves, who generally worked as 
 labourers, but occasionally held land as raiyats, though 
 more generally as under-raiyats. Each of these dif- 
 ferent classes of raiyats paid at varying rates of rent, 
 the elders paying less than the other classes and the 
 labouring Sudras paying at the highest rate. The 
 Sudra labourers as raiyats seem to have occupied the 
 least productive lands, and paid as rent the entire value 
 of the crop, less the cost of labour and tlie value of the 
 seed. These were the leading principles that underlay 
 customary rent in India — 'principles which are^-and 
 ought to be the bases of enhancement or al)atement of 
 rent at the present day. In India, more than in any 
 other country, every thing has a tendency to unchange- 
 ableness, and when once the rates in any locality) are 
 fixed on these principles, they become customary or 
 per^anah rates. Rent of land is, over the greater portion 
 of the world, controlled by custom, and, even in 
 England, where land is held by tenants at competitive 
 rent, custom is not entirely overlooked.^ 
 Ricardoand Ricardo's theory of rent is well-known. According 
 
 Malthus. to him the rent of any particular piece of land is the esti- 
 
 mated difference between the amount which it produces 
 and the amount of produce raised from the worst land 
 in cultivation, The nett produce is that which remains 
 after every expense connected with the farm has been 
 paid, and aftrr an adequate ri'inun Tatioii lias been 
 given as the price of labour employed and the use of 
 capital. A rise in the rate of profit or in the rate 
 of wages, unless accompanied by some counteracting 
 cir(Ministanres, causes the' rate of rent to decline. This 
 
 J. I) llcwell's Kiafjmentary Trafls on I'oliiical Economy.
 
 THEORY OF RENT IN INDIA. 35| 
 
 theory of rent may be true when there is free 
 competition for land and when there is no interference 
 by law or custom causing disturbance to free com- 
 petition. Increase of population and consequent de- 
 mand for land and the rise in the value of produce and 
 decrease in the wages of labourers m ly increase the rate 
 of rent in other countries, but in India custom controls 
 the theories of Ricardo and Malthus and the political 
 economists who have followed them. 
 
 According to J. S. Mill, the principle of competition J. S Mill 
 gives to the theories of rent, as enunciated by Ricardo 
 and Malthus, a scientific character, but competition has 
 never been the exclusive regulator in any country -the 
 causes of aberration being various and indefinite. In 
 fact, competition never exercised unlimited sway in 
 any country, until a comparatively modern period. 
 He says — " The farther we look back into history, 
 the more we see all transactions and engagements 
 under the influence of fixed custom. The reason is 
 evident. Custom is the most powerful protector of 
 the weak against the strong, or their sole protector 
 where there are no laws, no government adequate to 
 the purpose, though the law of the strongest decides. 
 It is not the intention, or in general, the practice of the 
 strongest to strain the law to the utmost; and every 
 relaxation of it has a tendency to become a custom, and 
 every custom to become a riglit. Rights, thus originat- 
 ing, and not competition in any shape, determine the 
 share of the produce enjoyed by those who pro- 
 duce it. The relation, more specially between the 
 landholder and the cultivator, and the payment made 
 by the latter to the former, are in all states of society 
 but the most modern, determined by the usage of the 
 country. Never, until late times, has the condition of 
 the occupancy of land been, as a general rule, an 
 affair of competition. The occupier for the time has, 
 very commonly, been considered to have a right to
 
 35a RAIYATS. 
 
 retain his holding, whilst he fulfils the customary 
 requirements, and has thus become in a certain sense 
 a co-proprietor in the soil."^ 
 Mill's theory The majority of the judges in the case of Tliakoo 
 
 accepted in ranee Dossee v. Bisheshur Mookerjee"^ accepted Mill's view 
 of rent in India, and agreed in holding that whatever the 
 theory of rent applicable to England might be, the 
 customary or perganah rate should be the true basis 
 of ascertainment of rent in India. " The custom of 
 the country, and not the theory of English political 
 economists, should be applied to this country. All that 
 is not comprehended in the wages of labour and profit 
 of the raiyat's stock is not the landholder's rent." 
 Analysis of An analysis of the idea of customary rent in India 
 
 the idea of resolves it into the following elements : — 
 
 customary _ '^ 
 
 rent. I. Quantity of land. 
 
 2. Productive power of land. 
 
 3. The average value of the produce in or near the 
 locality. 
 
 4. The class to which the raiyat belongs. 
 
 The rent of any piece of land is ordinarily fixed on 
 
 a consideration of these elements, and the tenant is 
 
 bound to pay the same as fair and equitable. Thus the 
 
 contract-rate and the customary rate should coincide. 
 
 The customary or perganah rate having originally 
 
 variation been based on these elements, variations due to acci- 
 
 i*!.'!,'" 7"^'°'"' dental causes may entitle the rent-receiver to demand 
 
 rent at a higher rate or the rent-payer to ask for an 
 
 abatement. But according to another well-established 
 
 custom, variation could not be attempted with respect 
 
 to any particular raiyat or any particular holding, but 
 
 could only be attempted with respect to a local area - 
 
 an entire village or a perganah. In jiarticular instances, 
 
 the rate of rent might, for some cause or other, have 
 
 ' Principles of Political Economy, Bk. 11, Ch. IV. 2. 
 ' B. L. R. (F. B.) 202, 4c., 3 W. K. ( Aa X ) 29,
 
 ENHANCIiMKNT OF RENT. ^e^ 
 
 been lower than that at which rent was paid by the 
 majority of raiyats, and in such cases the landlord might 
 increase the rent to the ordinary customary rate of the 
 locality. Such instances were, however, rare, and unless 
 there was a wholesale enhancement, no raiyat could be 
 compelled to pay at a higher rate. 
 
 When Act X of 1859 was passed, it was pro- AaXofi859, 
 vided by section 17 of the Act^— " No raiyat having AavHI^"'^ 
 a right of occupancy shall be liable to an enhancement (B.C)of 
 of the rent previously paid by him except on some one '^^9, Sec. 18. 
 of the following grounds, namely : — 
 
 {a) That the rate of rent paid by such raiyat is 
 below the prevailing rate payable by the 
 same class of raiyats for land of a similar 
 description and with similar advantages 
 in the places adjacent. 
 (b) That the value of the produce or the produc- 
 tive powers of the land have been in- 
 creased otherwise than by the agency or 
 at the expense of the raiyat. 
 {c} That the quantity of land held by the raiyat 
 has been proved by measurement to be 
 greater than the quantity for which rent 
 has been previously paid by him." 
 The section did not expressly refer to customary or what is fair 
 perganah rates, neither did the Act lay down any especial ^^^ equitable 
 procedure for enhancement of rent of all the raiyats in 
 any local area. The Pottah Regulations in the Bengal 
 Code contemplated equalization and fair and equitable 
 rent of raiyats in a local area, but the provisions made 
 were imperfect, and no effectual steps were ever taken 
 to properly enforce them. The first ground of enhance- 
 ment, — that the rate at which rent is paid by the 
 raiyat is below that prevailing in adjacent places, — relates 
 to the perganah or customary rate. It assumes that the 
 
 ' See Aa VIII (B. C.) of 1869, Sec. 18. 
 S(I)
 
 354 
 
 RAIYATS. 
 
 rate of rent paid by the majority of raiyats in any locali- 
 ty is fair and equitable, and that, if there are no special 
 causes affectinij any particular raiyat which entitle him 
 to pay at a lower rate, his rate of rent should be equalised 
 to that of his neiyjhbours. The Act does not provide 
 for reduction of rent, if the raiyat h^s been paying at a 
 higher rate than his neis^hbours, the assumption apparent- 
 ly beini^that the rate of rent previously [)Hid by him is, 
 for some especial cause, fair and equitable. Section 30, 
 clause (a), of the Bengal Tenancy Act covers almost the 
 same ground as the first clause of section 17 of Act X 
 of 1859. Section 38 of the Bengal Tenancy Act, while 
 laying down rules about reduction of rent, does not con- 
 template reduction on the ground that the rate at which 
 rent is paid by a particular raiyat is higher than the 
 prevailing rate. 
 
 The prevailing rate of rent paid for lands of a similar 
 
 Prevailing ^ ^ • i i j 
 
 rate. description with similar advantages in the places ad- 
 
 jacent is, in the present state of things, extremely diffi- 
 cult to determine. Various causes, the principal of which 
 are the landlord's caprice or tyranny and the tenant's 
 weakness, have in many localities nearly destroyed what 
 one would call "the customary rate." The raiyats 
 generally pay at varying rates, varying with the power 
 of resistance which each of them po.s:^esses. In many in- 
 stances colourable kabuliats at rates higher than the really 
 prevailing rates come forward in abundance in support of 
 the landlord's cause, and courts of law feel the greatest 
 difficulty in linding out the truth, even if there be a 
 prevailing rate. I he determination of the question as 
 to what is the prevailing rate has necessarily induced 
 rulings not cjuitc consistent with each other. In one 
 ShadhooSingh of the leading cases' on the subjert, the late Justice 
 yi.Ramauoo. Dwarkan.ii li M It t er observed — " Prevail iiig rate means 
 
 graha I.all. '^, _ 
 
 the rate paid l)y the majority of the raiyats in the 
 ' Shadhoo Singh v. Ramanoograha Lall, 9 W R. S3.
 
 PREVAILING RATE. 355 
 
 neljj'ibojrli") ) 1.'' It must be paid generally and not by a 
 number of witnesses only. In Priag Lall v. Brock- 
 man^ the evidence of i\\v(:te patwaries, who put in their 
 jummabandies showing the rates payable by almost all 
 the raiyats, was held sufficit-nt to prove the prevailing 
 rate. The duty of a judge, when dealing with a case 
 based on this ground of enhancement, is not to determine 
 the fair or equitable rate, nor to strike an average 
 and thereby determine t'le prevailing rate, but to Hnd 
 out strictly the rate which has adjusted itself and is 
 actually paid as nirik or r iLe by a very large majority 
 of raiyats. '-^ But though th;^ customary and perganah 
 rate is generally the prevailing rate, it is not always 
 so. The established rate might have been changed 
 with respect to many raiyats, and the customary rate 
 might have ceased to be the prevailing rate at the date 
 of the institution of a suit for enhancement.^ 
 
 The Bengal Tenancy Act has provided* that, in A6lVIIlof 
 determining the prevailing rate, the rates generally '^^5' ^^^ 3'- 
 paid for not less than three years before the institution 
 of the suit should be taken into consideration, and for 
 ascertaining the rates satisfactorily, such revenue-ofificer 
 as the Local Government may authorize on that behalf 
 may be appointed a commissioner under section 392 
 of the Civil Procedure Code. 
 
 Und.^r Act X of 1859, the prevailing rate for the Sarre class 
 purposes of enhancement must be payable by the same °* raiyats. 
 class Of raiyats. There was a conflict of cases as to 
 the meaning of the expression — " same class." It was 
 
 ' 13 W. R. 346. 
 
 " Sumeera v. Gopal, i W. R. 58 ; Pela v. Nund, 6 W. R. ( Aa X ) 
 45 ; Jaun v. Jan, 9 W.R. 149 ; Surahutoonissa v. Gyanee, 1 1 W. R. 14a ; 
 Gunga V. Sharoda, 12 W. R 30 ; Priag v. J. G Brockman, 13 W. R. 
 346 ; Rowshun v. Chundur, 16 W. R. 177 : Audh v. Dost, 22 W. R. 185 ; 
 Tikaram v. Sandes, 22 W. R. 335 ; Akul v. Ameen, 5 C. L. R. 41 ; 
 Sreeman v. Lukshmoni, Marsh 379. Per Contra Shaikh Dena v. Mohinee, 
 21 W.R 157. 
 
 ^ Kallee v. Ruttun, 11 W. R. 571. 
 
 * Aa VIII of 1885, Sec. 31.
 
 35'5 RAIYATS. 
 
 held that the words referred exclusively to occupancy 
 raiyats ; but there might be separate classes in the 
 general body of occupancyraiyats/ Amongst the occu- 
 pancy-raiyats in the same village, there are jeyt raiyats 
 or mandals who generally pay at a lower rate^ and then 
 there are the khodkast and pahl raiyats, The Bengal 
 Tenancy Act has attempted to clear the difficulty by 
 laying down that ' whenever it is found that by local 
 custom any description of raiyats holds at a favourable 
 rate of rent, the rate shall be determined in accordance 
 with such custom.'- But ordinarily the rate paid by 
 occupancy-raiyats without reference to caste or class 
 should be taken into consideration. 
 Places adfa- " Places adjacent" include in its range a very wi(le 
 
 ""'• circle and not merely a village or a perganah.* The 
 
 perganah rate of the Mahomedan times has, however, long 
 ceased to exist, and each village under a zemindar or a 
 subordinate tenure-holder has its customarv or local rate. 
 Lands lying in a different village or in a different per- 
 ganah may yield better h irvest than lands in the village 
 in which enhancement is claimed by the landlord, 
 f'laiyats in one village under one landlord may hold 
 lands at more favourable rates than raiyats holding lands 
 in a neighbouring village under another landlord. To 
 apply the prevailing rate in one village to another would 
 in many instances be unfair and inequitable. The Bengal 
 Tenancy Act has laid down that in determining the pre- 
 vailing rate, only the village in which the land lies 
 should be taken into consideration* 
 
 ' Ram Coomar t). Bhoyrub, 6 W. R. ( Aft X) 33; Purinaniind v. 
 Puddomonee, Marsh 379, ST , 9 W.R. 349 ; Gouree r. Ram, I2\V.R. 102; 
 Woomanath v. Ashumburee, 12 W 1^ 475 ; Mothoura ^ Nilmonee, 
 13 W. R 297. 
 
 ■' Aa Vin of 1885, Sec. 31. 
 
 ' Kallee v. Ruttun, 11 \V. R. 571 ; Mr. J. Tweedie v. Poorno, 12 
 W. R. 138; Shaikh Dena v. Baboo Mohinee, 21 W. R. 157. 
 
 ♦ Aa VIII of 1885, Sec. 30, cl. (a).
 
 CLASSES OF LAND. 357 
 
 "Description of land" includes the productive Description 
 power as well as the nature of the crop capable of °' '^"^ 
 being produced on it. In most of the Bengal districts, 
 lands in agricultural holdings are divided into various 
 classes, of which the principal are the following : — 
 
 I. Sali ov jal or dhanhar, i. e., — lands producing ^"'^- J"^ ">" 
 
 •> 1 T-i 11 dhanhar 
 
 aman (winter) paddy. These lands are generally 
 low, and are divided into four sub-classes according to 
 their productive powers, viz.^ awal {fivst), doe?n ^second , 
 syem (third) and chaharam (fourth). 
 
 (2) Siina ox bhit ^xodiWQ\v\<g two crops — the autumn Suna or bhit. 
 paddy or jute or crops known as bhadoi, and the 
 winter crops— potato, seeds, wheat, barley and others 
 known as rabi. Sugar-cane is also produced on such 
 lands. These also are divided into four classes as above. 
 
 (t) T^rtj-/// or homestead lands and udhastu or land Ba^tu and 
 near the homestead used by the raiyat for his cattle. " ^^ "' 
 
 (4) Land covered by water. Covered by 
 These last two kinds of land, when they appertain water. 
 
 to a tenant's agricultural holding must come within 
 the purview of section 17 of Act X of 1859 and section 
 30 of the Bengal Tenancy Act. 
 
 (5) Garden land being horticultural also comes Horticultural 
 within the purview of the Rent Acts. 
 
 (6) Pasture ghaskar) lands and kharkar lands Ghaskar and 
 which yield thatching grasses. 
 
 The value of land producing grains depends, in Similar ad- 
 
 • II • •, i . 1 i vantage. 
 
 any village, upon proximity to tanks or water-courses 
 which afford means of irrigation. In this country, 
 distance from the nearest market or place of sale 
 is seldom taken into consideration, unless it leads to 
 a material difference in the market value of the pro- 
 duce. Villages are generally not very large, and the 
 transit of goods costs almost the same amount, the 
 distances of the fields from one another and the 
 mirket baing inappreciable. The rent of lands no doubt 
 varies considerably according to their distances from
 
 358 RAIYATS. 
 
 a town, or a railway station, or a trade-centre, or a navi 
 gable river; but such variations affect only the lands of 
 one village as compared wiih those of another at a distance. 
 The advantages of one piece of huid over another 
 in the sam^^ village, if it is not grain-producing, 
 consist not onlv in its proximity to reservoirs of water 
 and streams, but also in easy access from the homes of 
 the village people who generally live close to one another 
 in clusters of huts. There may also be an advantage of 
 one piece of land over another by its distance from 
 homestead lands and fields appertaining to other villages. 
 Value of pro- The second ground of enhancement is the increase 
 
 nrodi'iaive '" ^^^^ value of the produce or the productive power of 
 power of land. Clauses (bj, (c) , and (d) of section 30, of the 
 
 Bengal Tenancy Act, cover almost the same ground as 
 clause (b) of section 17 of Act X of 1S59. This ground 
 involves quantities not easy to determine and requires 
 solution of problems of great difficulty. 
 Rise in aver- The vagueness of the expression " the value of the 
 
 age prices. produce " in section ryof Act X of 1859 has been at- 
 tempted to be avoided in the Bengal Ten.mcy Act, by 
 the words " rise in the average local prices of staple food 
 crops" and sections 32, 33, and 34 of the latter Act 
 have laid down certain rules with reference to this 
 ground of enhancement of rent ; but still the difficulty in 
 ascertaining the exact rise in the prices of staple food 
 crops is as great as ever. 
 Rule of pro- Increased demand of staple food crops from an 
 
 portion. increase of the non-agricultural population of a country 
 
 and of its commercial industry leading to larger ex- 
 port? into foreign countries, necessarily brings about 
 a general rise in the value of produce, if there is no 
 proportional increase in the area of agricultural lands. 
 Decrease in the value of money as a medium of 
 exchange also leads to a general rise in the value of 
 food crops. The landlords begin to demand rent at en- 
 hanced rates, and the rise in the value of grains naturally
 
 RULE OF PROPORTION. 359 
 
 accommodates itself to the landlords' demand. The 
 raiyats crridaally pay at a fair rate ui rent ; but if 
 as a cUss they decline' to do so, it becomes necessary 
 to determine, for the purposes of enhancement, the 
 average rise in locil prices of staple food crops and to find 
 out what the [)roportionate increase in the rate of rent 
 should be. In Thakooranee Dossee v. Bisheshur Mookerjee^ 
 the majority of the Judges held — " In all cases in which 
 an adjustment of rent is requisite in consequence of a 
 rise in the value of the produce caused simply by a rise 
 of price, the metliod of proportion should be adopted — the 
 former rent should bear to the enhanced rent the same 
 proportion as the former value of the produce of the soil, 
 calculated on an average of three or five years next 
 before the date of the alleged rise in value, bears to its 
 present value." If the landlord was originally entitled 
 only to a share of the produce, and the money rent 
 paid in modern days is roughly an equivalent of the 
 money-value of that share at the time when rent in kind 
 was commuted into rent in specie, this rule of pro- 
 portion may work out the fair and equitable rent which 
 an occupancy-raiyat ought to pay. Increase in the value 
 of labour and increase in the cost of living of the raiyat 
 and his family consequent upon an increase in the price 
 of grains and the other necessaries of life are disturbing 
 elements, but are not sufficiently important to vary such 
 a rule of proportion unless the increase is abnormally 
 high. The increase, as a ground of enhancement of rent, 
 must, however, be in the price of staple food crops and 
 not of particular crops grown by raiyats in recent years 
 at considerable cost in manuring and hired labour. Jute, 
 indigo, tobacco, opium and ganja are particular crops 
 which ought not to be taken into consideration.* 
 
 But after all, the rule of proportion is not very Not easy of 
 easy of application to actual facts. The terms necessary 
 
 ' B. L. R., Sup. Vol., 202, sc, 3 W. R. ( Aa X) 29. 
 ■ Bhagruth v. Mohasoop, 6 W. R. ( Aft X ) 34. 
 
 application.
 
 360 RAIYATS. 
 
 to work out a proportion are difficult to find out. 
 The value of staple food crops at the time of the previous 
 settlement of rent is in most cases impossible to find 
 out/ Price lists may now be of use, but they were not 
 generally prepared in former days. The causes of 
 aberration are also many, and the very simplicity of 
 the rule of proportion makes it inapplicable to a com- 
 plex state of facts. 
 Rule of pro- Ti^e rule of proportion laid down in Thakoorani 
 
 portion not ^ , • • i- 1 1 1 • • 1 • 
 
 applicable Dosse sz^%^ IS inapplicable where in particular instances 
 where perga- j^jj. ^,jj equitable rent may be determined by the pre- 
 
 nah rate is ^ ■' -^ . 
 
 equitable vailing perganah rate. It would seem from the provis- 
 
 ions of the Bengal Tenancy Act as to enhancement and 
 settlement of rent that the rule of proportion is appli- 
 cable only when enhancement is sought for in any local 
 area involving the holdings of a large number of tenants. 
 Re-adjustment of rent ought only to be allowed when a 
 change of customary rent is necessary on account of the 
 altered state of things in a large area. Macpherson J., in 
 his judgment in the Full Bench case above referred to, 
 observed "In my opinion, the rule of proportion, — as the 
 old value of produce is to the old rent, so is the present 
 value of produce to the rent which ought now to be 
 paid — is the rule which should be adopted in the 
 absence of any recently adjusted perganah or customary 
 rates. In so ascertaining the rate, we shall be ascer- 
 taining it on a principle similar to that on which the 
 old perganah or custo nary rates were fixed. We shall 
 be doin^jf what was deem m1 f lir and equitable in the 
 case of raiyats having a right of occupancy prior to 
 Act X, and whit is not less fair and (equitable in the 
 case of raiyats having a right of occupancy under that 
 Act. Let the zemindar seeking to enhance the rent 
 go back to any year he chooses, and let him prove that 
 
 ' jadub V. Etburry, 3 W.R. ( Art X ) 160. 
 ' Srecsh v. Assimonis.sa, 7 W. R. 234.
 
 RULE OF PROPORTION. 36 1 
 
 the proportion was then more favourable to him than it 
 has subsequently become. Either party should be at 
 liberty, in each case, to prove any special circumstances 
 tending to show that the application of the rule of pro 
 portion to that particular case would work injustice." 
 
 The increase in the price of staple food-crops must Average of 
 be in its natural and usual course in ordinary years. In p^ces m de- 
 
 •' ■' cennial 
 
 Bhagruth Doss and others v. Mohasoop Roy and another^ periods, 
 the High Court observed that accidental or exceptional 
 high prices in any particular year or even successively for 
 two or three years ought not to be taken as a measure 
 for adjustment of rent. Various causes might affect the 
 value of the produce for a year or two, but that 
 would be no ground for enhancement. The Bengal 
 Tenancy Act requires the calculation of average prices 
 during a decennial period." The proportion is to 
 be worked out with reference to average prices during 
 two decennial periods, the one immediately preceding 
 the institution of the suit and the other any decennial 
 period as may appear equitable and practicable to be 
 taken for comparison.^ In order to avoid the hardship 
 that may arise from an average of high prices in the later 
 period, the Act has also provided that the average prices 
 during the later period should be reduced by one third of 
 their excess over the average prices during the earlier 
 period.* To make enhancement on this ground practi- 
 cable, it has also given the court discretion to substitute 
 any shorter periods instead of decennial periods.^ 
 
 Reduction of rent may be had on the ground that Reduftion of 
 
 there has been a fall in prices not due to any temporary rent on fall 
 
 , in prices, 
 
 cause. ^ The same rule of proportion, as in a case or en- 
 hancement of rent, has to be worked out. The court 
 
 » 6 W. R. ( Aft X ) 34. • Aa VIII of 1885, Sec. 32, cl. (a). 
 
 * Ibid, Sec, 32, cl. (a). 
 
 * Aa VIII of 1885, Sec. 32, cl. (b). 
 ^ Aa VIII of 1885, Sec. 32, cl. (c). 
 
 * Aa X of 1859. Sec. 18 ; Aa VIII of 1885, Sec. 38, Sub-Sec. i, cl. (6). 
 
 T (I)
 
 36j raiyats. 
 
 may, in any case, direct such reduction of rent as it 
 thinks fair and equitable. But suits for abatement of 
 rent are very rare, as a steady rise in prices has been 
 the normal state of things under the British rule in India. 
 Deduaion of j^e rule of proportion does not apply, where 
 
 one-third. . , • i • r i r j 
 
 the increase or decrease in the price ot staple tood- 
 crops is accompanied by either a decrease or an 
 increase in the productive power of land or in the 
 cost of cultivation. Land is liable to deterioration 
 by crops being raised successively for many years. 
 The deterioration can only be checked by a judicious sys- 
 tem of manuring which, as a matter of fact, is little under- 
 stood in this country. Manuring implies an increase in 
 the cost of cultivation. Rise in the price of staple 
 food-crops and increase in the demand of labourers 
 lead to a rise in the price of labour, and when hired 
 labour is necessary for the purposes of cultivation, an 
 additional cause of aberration disturbs the operation of 
 the rule of proportion. The rule in such a case requires 
 to be modified, and as there is a steady rise in the price 
 of labour, a deduction of something like one-third, as is 
 contemplated by the Bengal Tenancy Act, is necessary 
 to be made, — a deduction which prevents also any 
 mischief that may arise from exceptionally high prices 
 in the later period.^ In Shoivdamince Dassce V. Shoo- 
 kool Mahomcif' Trevor J. thus stated the terms of the 
 proportion — " The average value of ihe produce before 
 the decrease in the productive powers of the Und, will be 
 to the average value of the present decreased produce, 
 minus the increased cost of production, as the rent 
 previously paid will be to that which the land ought 
 now to pay " 
 Increase in Increase in the productive power of land, otherwise 
 
 the prodnc- than through the agency or at the expense of the raiyat, 
 
 tive power of . , 
 
 land. can take place only on account of an improvement et- 
 
 ' Ante p. 361. '^ 7 W. R. 94.
 
 PRODUCTIVE POWER OF LAND. 363 
 
 fected by or at the expense of the landlord or by fluvial 
 action.* Land has a tendency to deteriorate from want <;f 
 conservation of plant-food, but improved means of irriga- 
 tion, embankments preventing inundations or flow of salt 
 water, and improved methods of drainage, may and ac- 
 tually do increase the productive power of land. Silt 
 deposits in the deltaic provinces are frt- quent, and a piece 
 of sandy land this year may, by the action of a river, 
 become very fine arable land in the following year. The 
 drainage schemes have improved considerable areas in 
 Bengal. The zemindar who has to pay a large portion of 
 the cost of improvement may very well demand increased 
 rent. The Bengal Drainage Act expressly empowers him 
 to do so.''' 
 
 Instances of improvements made by raiyats them- Burden of 
 selves are not uncommon in this country, and in every 
 suit for enhancement of rent on the ground of an increase 
 in the productive power of the land held by the raiyat, the 
 burden is on the landlord to show that it is not due to 
 the agency of the raiyat.^ Under the Bengal Tenancy 
 Act, the burden is decidedly on the landlord. If the 
 raiyat converts at his own cost and labour arable land 
 into a garden, which yields a larger income, or if he im- 
 proves ordinary arable land by manuring, thereby making 
 it yield crops like tobacco or potato, the landlord is 
 entitled only to the rent of the land as it existed 
 before the improvement.* When a raiyat brings waste 
 land into cultivation, he is liable, after the russadi 
 period is over, to pay at the full perganah rate for 
 the cultivatrd land. But if the land which he originally 
 obtained required special cost to make it culturable, and 
 the raiyat had to spend more than ordinary labour and 
 
 ' Aa X of 1859, Sec. 17 ; Aa VIII of 1885, Sees. 30 and 34. 
 « Aa VI ( B.C. ) of 1880, Sees. 42 and 43. 
 
 * Poolin V. Watson, 9 W. R. 190. 
 
 * Chowdhry v. Gour, 2 W. R. ( Aa X. ) 40 j Golam AH v. Gopal Lai, 
 9 W. R. 65.
 
 364 RAIYATS. 
 
 capital to make it good arable land, the landlord is 
 not entitled to any benefit from tlie improvement. If 
 the raiyat has impressed upon the land a character it 
 would not naturally have, the landlord is not entitled to 
 ask for enhancement. Where a raiyat has dug a tank, 
 planted an orchard at his cost or erected a distillery, it is 
 the raiyat's agency and not the landlord's that has im- 
 proved the land.' 
 Orchards. ^^^ '" Obhoy CJiunder Sirdar v. Radhabullubh 
 
 Sen^ Garth C. J. observed — '• It is, in point of fact, 
 untrue that the increased productiveness of an orchard, 
 by reason of the growth of fruit trees, is due to the 
 agency of the person who planted them. After the first 
 expense of preparing the land, and planting and nur- 
 turing the young trees has been incurred, the increase 
 in the productiveness of an orchard depends probably 
 far less upon the labour and outlay of the tenant than 
 land used for the ordinary purposes of agriculture. The 
 trees may require a certain amount of care and atten- 
 tion for lime to time, but their growth and productiveness 
 depend far more upon the quality of the soil, and the 
 fertilizing influence of the seasons, than upon the labour 
 of man. It is quite right of course that, in settling the 
 rent of land which is let for the purposes of an orchard, 
 a due allowance should be made to the tenant to cover the 
 cost of his original outlay in the way both of labour and 
 capital ; but after such allowance has been made, there 
 is no reason why the rent of the lands used for orchards 
 should not be liable to enhancement or abatement from 
 time to time, in the same way as lands used for other kinds 
 of culture." With the greatest deference to the opinion 
 of liie learned Chief Justice, it seems to me that it is ques- 
 tionable in any case in which arable land is taken by the 
 
 ' Sreerum v. Lakhun, 2 Hay 427 ; Showdaminee v. Haran, 6 W. R. 
 ( Aa X ) 103; Brojo V. Stewart, 8 I^ I.. R. App. 51, sc, i6 W. R. 216. 
 • 1 C L. R. 549
 
 PRODUCTIVE POWER OF LAND. 365 
 
 tenant at the usual rate of rent, and improvement is 
 afterwards effected by the tenant planting fruit trees. 
 
 The Bengal Tenancy Act has a rigid rule that only Improve- 
 improvements effected by or at the expense of the b'^"andyor'd^ 
 landlord may be the basis of enhancement. Section 
 33 of the Act requires the registration of an improve- 
 ment under the provisions of the Act as a necessary 
 preliminary to a suit for enhancement on this ground ; 
 and sections 80 and 81 lay down rules for the registra- 
 tion of improvements. 
 
 Improvement by fluvial action must not merely be Improvement 
 temporary or casual. ^ It must last or is likely to a^^io^^'^ 
 last for a considerable time. An enhancement of rent 
 on this ground should always be fair and equitable, but 
 not so as to give the landlord more than one half of the 
 value of the net increase in the produce of the land.'-^ 
 
 Reduction of rent maybe claimed on the ground Reduaion of 
 that the productive power of the land held by the raiyat '^"^ °" '^''" , 
 
 i r J J terioratioii of 
 
 has decreased for any cause beyond his control. Per- land 
 manent deterioration by deposit of sand or such other 
 specific causes, sudden or gradual, entitles the tenant to 
 ask for abatement. Principles of natural justice and 
 equity require that, if during the period of the raiyat's 
 occupation, permanent deterioration takes place of any 
 portion of the land held by him by the act of God, and 
 not through the fault of the raiyat, he should not 
 be made to pay the same rent as before. =^ Under the 
 Acts of 1859 a"d 1869, the tenant might either sue for 
 abatement or claim abatement as a set ofi in a suit for 
 rent brought by the landlord.^ But in either case 
 
 ' Aa VIII of 1885, Sec. 34, cl. (a). Kristo v. Huree, 7 W. R. 235. 
 
 « Aa VIII of 1885, Sec. 34, cl. (b.) 
 
 =* Aa X of 1859, Sec. 18; Aa VIII of 1885, Sec. 38; Sheik Enayu- 
 toollah i». Sheik Elahee, W. R., 1864, ( Aa X ) 42 ; Munsoor Ali v. 
 Harvey, 11 W. R. 291. 
 
 ' Barry v. Abdool, W. R., 1864, ( Aa X ) 64; Mohesh v. Gunga, 2 
 Hay 495; Afsurooddeen v. Sarooshee, 2 Hay 664; Deen v. Thukroo, 6 
 W. R. ( Aa X ) 24 j Gout V. BonomaleCi 22 W. R. 1 17.
 
 356 
 
 RAIYATS. 
 
 Alteration of 
 rent on alter- 
 ation of area. 
 
 Increase of 
 area by fluvial 
 aiStion. 
 
 the burden of proof is upon the tenant. ^ The Bengal 
 Tenancy Act contemplates abatement by a suit, and 
 the court may direct in such a suit such a reduction 
 of rent as it thinks fair and equitable. 
 
 Alteration of rent on alteration of area is an im- 
 portant incident of tenancy in this country It is not 
 confined to occupancy holdings only. The rent of a 
 permanent tenure or a permanent agricultural holding 
 may be altered on alteration of the quantity of land in the 
 tenure or holding.- We have seen'^ that the law, as it 
 stood before. the Bengal Tenancy Act came into force, 
 enabled every tenant to claim an abatement of rent 
 for diminution of the area of the land held by him, 
 caused by circumstances beyond his control, unless 
 there is a clear stipulation to the contrary. The 
 question of the increase of rent in respect of any addi- 
 tional land gained by fluvial action in a permanent 
 tenure was, however, more difficult to answer. If abate- 
 ment was allowed at any time on the ground of a diminu- 
 tion of area by diluvion, enhancement must be allowed 
 on accretion or reformation. But if abatement was 
 never claimed and allowed, the landlord was entitled to 
 assess only accretions, if he could show that he was 
 entitled to do so by established usage or agreement.* 
 In Juggiit Chunder Dutt and others v. Panioty and 
 others, which came before the High Court three timei; 
 in appeal and once on review, it was held that the 
 zemindar was precluded from assessing accretions. 
 
 ' Aft VI II of 1885, Sec. 38. Savi v. Obhuy. 2 W. R. ( Aft X) 28. 
 
 - Afsurooddeen v. Shoroosshee, Marsh 558; Uma v Tarini, I. I-. R. 
 9 Cal. 571. See also Horo v. Joy Kissen, i W. R. 299; Prosunomoyee 
 V. .Soondur, 2 W. R. ( .\(5l X ) 30; Komcpl.ikant v. Pogose, 2 W. R. 
 ( Aa X ) 65 ; Shokuor v. Uinola, 8. W. R. 504; Watson v. Nist.irini, 
 I. L. R. lo Cal. 544. 13ut see Ram v. Poolin, 2 C. L. R. 5. 
 
 ' Ante pp. 184, 295. 
 
 ' Ramnidhee v. Parbutty, I. L. R. 5 Cal. 823 ; Brojendra v. Woo- 
 penara, I. L. R. 8 Cal. 706 ; Golam v. Kali, 8 C. L. R. 517 ; Hurro 
 V. Gopee, 10 C. L. R. 559.
 
 ALTERATION IN AREA. 367 
 
 though there were considerable differences in the 
 opinions of the judges.^ 
 
 The law as regards raiyati holdings was, however, Raiyati hold- 
 well settled. Section 17 of Act X of 1859- pro- '"^''■ 
 vided for assessment of additional rent for addi- 
 tional land found by measurement in the raiyat's 
 holding, and section 18 provided for abatement of 
 rent, if the quantity of land held by the raiyat 
 could be proved by measurement to be less than the 
 quantity for which rent was payable by the raiyat. The 
 Act made no provision for any class of tenants excepting 
 raiyats with rights of occupancy. I need hardly add that 
 either as regards enhancement or abatement of rent on 
 alteration of area, the rate per bigha must be taken to be 
 fixed. 
 
 The Bengal Tenancy Act applies the provisions of Aa VIII of 
 sections 17 and 18 of Act X of 1859 to all classes of ' ^' ^^' ^^' 
 tenants.^ If the increase in area is due to the action 
 of a river, and if there was no previous diluvion 
 reducing the area of the tenant's original holding, or if 
 abatement was allowed on diluvion, the tenant is bound 
 to pay additional rent for excess land. So also abate- 
 ment is allowed on diluvion. 
 
 The present area of a tenure or holding may easily Difficulty of 
 I J . • 1 1 . 1 , 1 Trn 1, • finding out 
 
 be determined by measurement, but the dirhculty in area at the 
 
 finding out the original quantity of land and the rate per origin of 
 
 • r ^ . , •' ,.,. . r , tenancy. 
 
 unit or measurement is, however, great. Dismissal 01 
 suits for enhancement or abatement of rent on account 
 of increase or decrease in area is mainly due to this 
 dif^culty. The length of the measure used at the time Standard 
 of the origin of the tenancy, /. e., the standard pole ^° ^' 
 of measurement, is also very often disputed and is not 
 easy to find out.* 
 
 ' 6 W. R. ( Aa X ) 48, 8 W. R. 427, and 9 W. R. 379. 
 
 « Aa VIII ( B. C. ) of 1869, Sec. 18. 
 
 » Aa VIII of 1885, Sec 52, els. (a ) and {b.) 
 
 * Gouri V. Reily, I. L. R. ao Cal. 579.
 
 368 RAIYATS. 
 
 How may As we have said before,^ increase in area mav 
 
 area increase. • i / v i i 
 
 take place, — {a) by the tenant's encroaching on the 
 
 adjacent land of his landlord, and ((5) on the adjacent 
 
 hind of a third person and used by the tenant as a part 
 
 of his holding, and (c) by accretion. Reformation tn 
 
 situ only makes up the land lost and may, at present, be 
 
 left out of consideration. - 
 
 Alluvion. On increase by alluvion, 'the tenant has the right to 
 
 continue in occupation of the land and is only liable to 
 
 pay additional rent, though at one time the law was 
 
 supposed to be that no raiyat was entitled to possession 
 
 of land added to his holding by accretion, ^ Under 
 
 the Bengal Tenancy Act, no doubt can arise, and it 
 
 seems to me that section 17 of Act X also contemplated 
 
 additional rent for land gained by accretion. 
 
 Decrease in area may take place, {a) on account of 
 How may • 1 1 • 1 1 1 /r\ 1 
 
 area decrease, encroachment by a neighbouring holder, (/;) encroach- 
 ment by the landlord himself, (r) by diluvion, and (^) by 
 acquisition of land by Government for public purposes. 
 Encroachment by a neighbouring holder ought not to 
 ^^^f°w.. ' be a ground of abatement of rent, if the encroachment 
 third person, be due to an act of trespass. The tenant can resist such 
 encroachment, and if he does not do so, he is guilty 
 of laches and ought not to be allowed to make the 
 landlord suffer for his negligence. But if the encroach- 
 ment be under a title paramount, the rent ought to 
 abate proportionately.* 
 P „ . Encroachment by the landlord himself on any part of a 
 
 r.ncroacn- •' -' ' 
 
 ment by land- r.'iiyat's holding causes a suspension of the entire rent.' 
 But as a matter of fact, the raiyat seldom claims suspen- 
 sion of rent; he is contented with abatement. He thinks 
 
 ' Ante pp. 292-296. 
 
 • For the law as to landlord's right on encroachment by tenant, 
 see pp. 221-222. 
 
 • Finlay v. Gopcc, 24 W. R. 404. 
 
 « Ante pp. 218, 295-6. '■ Ante pp. 218-9.
 
 ALTERATION IN AREA. 369 
 
 himself fortunate, if he is allowed to hold the rest of the 
 land in his original holding submitting to the encroach- 
 ment by the landlord, and can get an abatement pro 
 tanto. I have already said that the rule of English law as 
 to suspension of the entire rent can not be applied in 
 this country except under very peculiar circumstances. 
 
 In cases of diluvion, section i8 of Act X of 1859, Diluvion. 
 section 19 of Act VIII ( B. C. ) of 1869 and section 52 
 of Act VIII of 1885 leave no room for doubt as to the 
 right of an occupancy-raiyat. Section 178 of the Act of 
 1885 makes any contract taking away the right of a 
 raiyat to apply for a reduction of rent under section 52 
 of the Act^ invalid, if it is entered into after the passing 
 of the Act. This provision of the Act is applicable to all 
 classes of raiyats, and not merely to raiyats with rights of 
 occupancy. An express agreement not to claim abate- 
 ment entered into before the passing of the Act, is 
 good. Section 179 of the Act declares the validity of 
 such a contract between a proprietor or a holder of a 
 permanent tenure in a permanently settled area and a 
 holder of a permanent mukurrari lease. 
 
 Acquisition of land for public purposes necessarily Acquisition 
 
 causes abatement of rent in respect of the land ac- of '^nd for 
 
 ^ _ public pur- 
 
 quired. The raiyat may, however, at the lime of the ac- poses. 
 
 quisition, take such a portion of the compensation as 
 
 may disentitle him to claim abatement. 
 
 The standard pole of measurement generally varies in standard 
 
 the different localities of the Bengal provinces. Section po'e. 
 
 41 of Act VIII (B.C.) of 1869, which repealed section 11 
 
 of Bengal Act VI of 1862, provided that all measurement 
 
 should be made according to the standard pole of the 
 
 perganah in which the land was situated. The Collector 
 
 was competent to determine the standard.* In one case 
 
 > Aa VIII of 1885, Sec. 178, Sub-Sec. 3, cl. (/). 
 
 • Srimati Manmohini v Premchand, 6 B. L. R., F. B., i., sc, 14 
 W. R, F. B, 5, 
 
 U(l)
 
 37° 
 
 RAIYaTS. 
 
 it was observed that it was exclusively within the 
 province of the Collector, as the depository of the 
 standard pole of each perganah, to declare what the 
 measure of the pole used was in each perganah in his 
 district/ There existed considerable difference of 
 opinion as to the value of any measurement-p^per, if 
 the measurement was not made according to the standard 
 pole. The correctness of the measurement itself could 
 be called in question.'^ An appeal lay as regards the 
 standard pole.^ The Bengal Tenancy Act,* however, 
 requires every measurement to be made by the acre, 
 unless the court or revenue-officer ordering it specially 
 directs that it shall be made by any other specified 
 standard.* But the rights of the parties are regulated by 
 the conversion of the acre into the local measure. The 
 Local Government is also empowered to make rules 
 declaring the standard or standards of measurement 
 locally in use in any local area ; and every declaration 
 so made shall be presumed to be correct, until the 
 contrary is shewn.® At the present day, the landlord 
 generally claims the standard to be eighteen inches 
 a hath or cubit, while the tenant claims 20 inches or 
 more. In some localities, the standard used is the 
 elahigaj.'' 
 Bengal Aft Act VI ( B. C.) of 1 862« gave the 1 ndlord the right of 
 
 VI of 1862. making, at any time, a general survey or measurement of 
 the lands comprised in his estate or tenure or any part 
 thereof, unless restrained from doing so by any express 
 engagement with the occupants of the lands. The 
 
 » Tarucknath v. Meydee, 5 W. R. ( Aft X ) 17. 
 
 " Roma Nath i;. Dhookhee, ii W. R. S\o , Brojo v. Kassim, 1 1 
 W. R. 562, I'er contra Rakhal v Tunoo, 7 W. R. 239. 
 
 3 Bhuggcbutty V. Tameeruddeen, I W. R. 224 ; Nund v. Tara, 2 
 W. R. ( A6t X ) 13 ; Surbaniind v. Ruchia, 4 W. R. ( Aft X ) 32. 
 « Aa VIII of 1885, Sec. 92. 
 
 » Ibid, Sec. 92, Sub-Sec. l. " Ibid, Sec. 92, Sub-Sec. 3. 
 
 ' Guj ilahi =a 33 inches (Land-measure of N.-W. Provinces.) 
 " Aa VI ( B C. ) of 1862, Sec 9.
 
 MEASUREMENT OF LAND. 37 I 
 
 power could be exercised with respect to any land in the 
 occupation of an under-tenant or raiyat. If any opposi- 
 tion was made, the landlord could seek the assistance of 
 the Collector, who might order the tenant to attend 
 and point out the boundaries of the land held by him. 
 Sections 25 and 37 of Bengal Act VIII of 1869 and 
 sections 90 and 91 of the Bengal Tenancy Act have 
 conferred the same power on landlords. But under the 
 latter Act the right cannot be exercised more than oncfi 
 in ten years except under the circumstances specified in 
 section 90. This right to measure is a necessary inci- 
 dent of proprietary right, as it enables the landlord to 
 ascertain the boundaries and the area of any tenure or 
 holding and whether there has been any encroachment 
 or increase by alluvion and consequent alteration in 
 area, and then if necessary to demand an increase of 
 rent on the ground of an increase in area. 
 
 The right to measure, like the right to enhance Only proprie- 
 rent can be exercised only by a proprietor in possession '^"^s in pos. 
 
 J J i^ 1^ ^ ' _ _ session can 
 
 and actual receipt of rent. A proprietor who is not in measure 
 possession is not entitled to measure any land within 
 the ambit of his estate.' If any question arises as to 
 the right to measure, the dispute being raised on the 
 ground of possession by a third person as proprietor or 
 tenure-holder, the Court has only to look to actual pos- 
 session by receipt of rent. Under Act VIII of 1885 (Sec. 
 60) a proprietor whose name is registered under Act 
 VII (B.C.) of 1876 is presumed to be in possession, 
 having the right to receive rent ; and so he also is en- 
 titled to measure. His right is not affected by the 
 lands having been let out on permanent leases. 
 
 <:. 2 
 
 ' Kalee v. Ramguttee, 6 W. R. ( Aft X ) lO ; Pureejan ^> Bykunt, 7 
 W. R. 96, Krishto v. Ram, 9 W. R. 331. Per contra Nundun v. Smith, 
 7 W. R. 188; Wise V. Ram, 7 W. R. 415 ; Doorga v. Mahomed, 14 
 W. R. 121, 399. 
 
 • Raj V. Kishen, 4 W. R. (Aft X) 16; Dwarka r. Bhowanee, 8 W. 
 R. 11; Run Bahadoorz). Muloo, 8 W. R. 149; Tweedie 1;. Ramnarain, 9 
 W. R. 151
 
 372 
 
 RAIYATS. 
 
 . ^^ A part proprietor of an estate or tenure cannot 
 
 prietorcan- apply for measurement.^ Section i88 of the Bengal 
 measurement. Tenancy Act prevents any one or more of the co-sharers, 
 unless all of them join, from asking the assistance of 
 a Court to enable him or them to measure the lands. 
 Notice of an intended measurement must also be given 
 by all the joint proprietors. A part proprietor of an 
 estate, however, was held to be competent to apply 
 for measurement under section 38 of Act \'IIl (B-C"! 
 of 1869, (Bengal Act VI. of 1862, Sec. 10), if he 
 made his co-proprietors parties to the proceeding.' 
 It seems to me, however, to be doubtful whether 
 the legislature ever intended to give a co-proprietor 
 such a power. 
 
 Under the Acts of 1862 and 1869, a question was 
 lands.'"' raised as to the right of a proprietor or tenure holder 
 
 to measure lakhiraj lands. The word lakhiraj means, 
 in ordinary parlance, lands revenue-free as well as rent- 
 free. The zemindar's right to have a measurement made, 
 it was held, extended only to lands actually rent paying 
 and not to rent-free or revenue-free lands. ^ The Bengal 
 Tenancy Act makes the holders of rent-free lands, 
 claiming under titles created since the Permanent 
 Settlement, tenants within the meaning of section 
 3, sub-section 3 ; and it is only reasonable that a 
 landlord should have the right to enter on and 
 measure all lands comprised in his estate or tenur'% 
 other than lands exempt from payment of revenue. 
 Holders of revenue-free lands are proprietors, and 
 such lands, though lying within the ambit of a rev- 
 
 ' Moolook w. Modhoo, 16 W. R. 126; Shoorender 7». Bhuggobut, 18 
 W. K. 332: Santiieram t; Fiykant, 19 \V. R 280 ; Peareu 7>. Raj, 20 
 W. R. 385 ; Ishan v. Busaruddin, 5 C. L. R. 132. Per contra Abdool v. 
 Lall Chand, I L. R 10 Cal. 36, sc , 13 C. \.. R. 323. 
 
 ' Abdool V. Lall, I. L. R, 10 Cal 36. 
 
 ' Rung*. Sreedhur, 11 VV. R. 293, .sc, 3 IJ L R. App 27; Golam 
 V. Erskine. ii W. R. 445 ; Khugendro v. Kantee, 14 W. R. 368.
 
 NOTICE OF ENHANCEMENT. 
 
 373 
 
 measure- 
 ment-papers. 
 
 enue-paying estate, can not be measured by the holder 
 of the latter/ 
 
 If a tenant, on being called upon to attend and Value of 
 point out his land and the boundaries thereof, refused 
 or neglected to do so, it was not competent for him to 
 contest the correctness of the measurement made in 
 his absence, provided the Court acting under section 9 
 of Act VI (B.C.) of 1862 or section 37 of Act VIII (B.C.) 
 of 1869, had local as well as pecuniary jurisdiction, 
 and the person making the application had the right 
 to do so.* If the person applying to the Court for 
 measurement was only a part-owner or was not in 
 possession, a measurement made at his instance in the 
 absence of the tenant would not be binding. So also, if 
 the tenant had no notice of the measurement, he would 
 not be bound by it^ The Bengal Tenancy Act, how- 
 ever, lays down that if the tenant refuses or neglects to 
 attend, in accordance with an order duly made and 
 served under section 91, sub-section i, the measurement 
 made in his absence shall be presumed to be correct, 
 until the contrary is shewn.* 
 
 Regulation V of 1812 made the issue of a notice 
 a necessary preliminary to the institution of a suit for 
 an increase of rent. This provision was re-enacted in 
 section 13 of Act X of 1859 ^^d section 14 of Act VIII 
 (B.C.) of 1869. A large percentage of enhancement- 
 suits failed for defects in the form of notices or their 
 non-service. In most instances, the suits were dis- 
 missed ; in others decrees were made declaring the right 
 of the landlords to enhance, the prayers for decrees at 
 enhanced rates being dismissed. A notice of enhancement 
 was required to be served in districts or parts of dis- 
 tricts, where the Fusli year prevailed, in or before the 
 
 Notice of en- 
 hancement. 
 
 ' Prosunnomoyee v. Chundernath, 10 W. R. 361, sc., s B. L. R., 
 S. N., 5. ^ Jadub V. Etwari, Marsh 498. 
 
 * See Alimuddi v. Kali Krishna, I. L. R. 10 Cal. 895. 
 Aa VIII of 1885, Sec. 91, Sub-Sec 2.
 
 374 
 
 RAIYATS. 
 
 month of Jeyt, and in districts or parts of districts where 
 the Bengali year prevailed, in or before the month of 
 Pous. Under the Bengal Tenancy Act, the landlord is 
 empowered to institute a suit for enhancement, without 
 the previous service of any notice, and the decree 
 in such a suit should contain a direction as to time 
 when it is to take eflfect. Section 154 of the Bengal 
 Tenancy Act provides that a decree for enhancement 
 of rent, if passed in a suit instituted in the first eight 
 months of an agricultural year, shall ordinarily take 
 effect on the commencement of the next agricultural 
 year, and in a suit instituted in the last four months of 
 an agricultural year, on the commencement of the 
 agricultural year next but one following. But the 
 Court may for special reasons fix a later date for the 
 operation of any decree for enhanced rent. 
 
 Under the Bengal Tenancy Act, enhancement of 
 hincement"' rent may be directed to be gradual for any number 
 of years not exceeding five.* No suit for enhance- 
 ment on the ground that the rate of rent paid is below 
 the prevailing rate or on the ground of a rise in 
 prices is maintainable, if witliin the fifteen years 
 next preceding its institution the rent has been en- 
 hanced by contract made after the 2nd March 1883 
 or commuted under section 40 or if a decree en- 
 hancing the rent has been passed on either of the 
 grounds aforesaid or a suit for enhancement dismissed 
 
 Gradual en- 
 
 on its mt rits.* 
 
 A suit for reduction of rent is, as we have seen, 
 
 Form nf j A t 
 
 decree in suits the Only means by which a tenant may under Act 
 forreduftion. VIII of 1 885 claim an abatement. But the Bengal 
 Tenancy Act has made no jirovision as to the 
 form of a dec r(;e in such a suit and the time of 
 its operation. It is obviously left to the discretion 
 of the Court. 
 
 • A« VIII of 1885, Sec. 36. * Ibid, Sec. 37, Sub.-Sec. (l).
 
 DELIVEKY OF POTTAHS. 375 
 
 If any dispute arises as to the terms and conditions Determina- 
 under which a tenant holds or as to other incidents ot incidents of 
 the tenancy, the Court having jurisdiction may decide it. tenanry ^nnd 
 
 •' ' '^ ■' ■' delivery ot 
 
 In the districts where Act X of 1859 is still in force, the pottaiis. 
 incidents are determined by the Collector's courts. Sec- 
 tions 8 and 9 of the Act corresponding with sections 9 
 and 10 of Act VIII (B. C.^ of 1869 prescribed a rough pro- 
 cedure for the delivery of pottahs and kabuliats. Section 
 2 of these Acts, following the old Regulations as to 
 the delivery of pottahs to tenants, declared the right 
 of every raiyat to receive a pottah. The instrument 
 had to specify the quantity of land, with boundaries, 
 the amount of annual rent, the instalments of rent 
 and any special conditions of the lease. The inten- 
 tion of the Legislature was that there should be a 
 written record of the exact terms and incidents of the 
 tenancy, so that future disputes might be avoided. If 
 the tenant desired to have a pottah he could institute a suit 
 for the purpose, and the Court was to take evidence 
 and determine the questions as to which the parties 
 differed. 
 
 A raiyat with aright of occupancy was entitled, when Pottahsat fair 
 
 , ,. 1 i-rr 1 i ii. »• and equitable 
 
 there were dispiates and differences between the parties ^^^^^ ^^^^^ 
 
 and the terms of the contract were difficult to ascertain, Aft X of 1859. 
 
 to a pottah on such terms as to the Court might seem 
 
 fair and equitable under the circumstances of the 
 
 case. Raiyats with rights of occupancy were the only 
 
 class of persons who were interested in suing for 
 
 pottahs. But no suit could be entertained, unless the 
 
 relationship of landlord and tenant existed, and the 
 
 tenant was in possession of the land. Questions of 
 
 title or the right of the tenant to hold the land could not 
 
 be determined in suits for pottahs.^ 
 
 ' Campbell ii. Kissen, Marsh Rep. 67 ; Haree Parsad v. Asmut, 
 Marsh Rep. 99; Syed v. Bakur, 3 W. R. ( Aa X) 3; Bharut v. 
 Oseemooddeen, 6 W. R. ( Aa X ) 56.
 
 37^ RAIYATS. 
 
 Suits for When the landlord desired to have a kabuliat or ^ 
 
 under Aa X counter-part engagement from a raiyat, he was bound to 
 °^ '^59- tender a pottah to the raiyat, such as the raiyat was en- 
 
 titled to get, and he was not entitled to a kabuliat by a 
 suit, if he had not, previous to its institution, tendered to 
 the raiyat a pottah specifying the terms and incidents of 
 the tenancy. Suits for kabuliats became generally 
 unsuccessful for non-tender of pottahs or erroneous 
 statements therein.^ A suit for a kabuliat was not 
 intended to be a suit for enhancement. Its principal 
 object was to record the incidents of the tenancy. 
 Neither could a landlord convert a suit for a kabuliat 
 into one for establishing the relationship of landlord and 
 tenant, or indirectly get the trial of the question of the 
 validity of a lease already granted or any question as to 
 title to land. It is unnecessary to add that one of a 
 number of co-proprietors could not under the Acts of 
 1859 and 1869 sue a tenant for a kabuliat for a propor- 
 tionate part of a holding, nor could he sue a tenant for 
 a separate kabuliat for his own share of the rent.* 
 Determina- ^^^ provision made in section 158 of the Bengal 
 
 tionofthein- Tenancy Act is simpler and easier to work out. Either 
 
 cidents of i i n i i i i i • 
 
 tenancy the landlord or the tenant, whetlier he is an occupancy- 
 
 under the raiyat or not, may sue for the determination of the 
 
 Bengal _ •; ' -^ 
 
 Tenancy Aft. incidents of the tenancy /£>., the terms and conditions 
 thereof and all or any of the matters specified in 
 the section. The Court having jurisdiction to de- 
 termine a suit for possession of the land has power to 
 entertain an application under the section, and an 
 order passed thereon has the effect of a decree, and is 
 subject to the like appeal as a decree. But an applica- 
 tion under the section cannot be converted into a suit to 
 determine rights to land or the existence of the relation- 
 ship of landlord and tenant. In Bhupendro Narayan 
 
 ' Golam Mohamed v. Asmut 10 W R ( F. R. ) 14; Gogon v. 
 Kashishwary, I, L. R. 3 C"al. 498. 
 
 ' Abdool Ali V. Yar Ali, 8 W. R. 467.
 
 RECORD-OK-RIGHTS. 377 
 
 Dutt and others v. Nemyc Chand Mondul,^ the High 
 Court held that a Court acting under the section was 
 bound to go into and decide the question of the validity 
 of the lease under which the defendant held. This ruling 
 was not in accordance with the rulings under the sec- 
 tions of the Acts of 1859 and 1869, dealing with pottahs 
 and kabuliats. The question was referred to a Full Bench*, 
 and the decision in BJiupendro Narayan Dutt v. Nemye 
 Chand Mondul was practically overruled, and it was held 
 that a Court dealing with a case under section 158 of the 
 Bengal Tenancy Act had the same limited powers as the 
 Collector under sections 8 and 9 of Act X of 1859. 
 
 Chapter X of the Bengal Tenancy Act contains Record-of- 
 rules of procedure for the record-of-rights and settle- geftV^'^"^'^^ ^f 
 ment of rents of tenants in an estate or tenure or rent, 
 any other local area. The law as to enhancement or 
 abatement of rent and the determination of the incidents 
 of tenancy, applicable to an individual tenure-holder or 
 raiyat, is also applicable in proceedings under chapter X.* 
 The cadastral survey under the Act deals with a large 
 and cultivated tract, inhabited by a number of raiyats, 
 the main objects of a proceeding before a revenue-officer 
 being to obtain uniformity in the rate of rent and adjust- 
 ment of disputes between landlords and tenants. If rent 
 is settled, the enhancement or abatement, as the case 
 may be, is intended to be uniform throughout, the 
 equalisation of rent being disturbed only where a raiyat 
 or a class of raiyats is entitled to hold for some special 
 causes at favourable rates. 
 
 What the delivery of a pottah and the taking of a Powers and 
 kabuliat or the determination of the incidents of the revenue-officer 
 
 tenancy is to an individu ^l raiyat or a particular holding, '" preparing a 
 ■' .... record-of. 
 
 the record-of-rights is to all the raiyats in a local area, rights. 
 A revenue-officer, acting under chapter X of the Bengal 
 Tenancy Act and preparing merely a record-of-rights, 
 
 ' I.L R. IS Cal 627 * Debendro v. Bhupendro, I.L.R. 19 Cal. 182. 
 ' Gouri v. Reily, I. L R. 20 Cal. 579. 
 
 V (I)
 
 378 
 
 RAIYATS. 
 
 has to find out the existing state of things, and his duties 
 are similar to those of a Collector or a Court under section 
 lo of Act VI (B.C.) of 1862 and section 38 of Act VIII 
 (BC.) of 1869 Under the Acts of 1862 and 1869, the 
 powers of a Collector or a Court were limited to re- 
 cording what was, and not wh it ought to have been. The 
 duties of a rt-venue officer are prescribed in sections 102 
 and 103 of the Act of 1885 and in the rules made by the 
 Local Government as to cadastral surveys. A revenue 
 officer has tht- same powers as a Civil Court in deter- 
 mining the particulars given in section 102. But though 
 he must find out the name of the landlord of a tenant, it 
 has been held that he cannot determine questions involv- 
 ing boundary disputes' or the validity of a revenue-free 
 grant set up by a person in actual occupation of any 
 piece of land.* If the proprietor of a neighbouring 
 estate claims to be in possession of any piece of land as a 
 part of his own estate, the revenue-officer has no juris- 
 diction to try whether the land appertains lo his estate 
 or the estate which is being surveyed. At most, he 
 may, under the Survey Act of I875^ summarily determine 
 the question of present possession. So, if a third person 
 sets up a claim to possession under a title to hold the land 
 revenue-free, based on a grant made before the Perma- 
 nent Settlement, the reveiiu --ofifi.er. it has been held, 
 should withhold his hands and refer the parties to a Civil 
 Court.* The claim, however, must be a bona fide one, and 
 not intendrd to frustrate the survey or record-of rights. 
 If, on the other hand, a person in actual occupation sets 
 up a r(MU free titii^ acquired subsequent to the Permanent 
 St^ttleinent, h<; bi-comrs a tenant within the meaning of 
 the Bengal IVr.aricy Act, and the jurisdiction of the rev- 
 enue-officer is not ousted.* The sections of the Act deal- 
 
 ' Norendro v. Srin.Tth, I L. R. l9Cal.64l; Bidhu t;. Bhugwan, 
 I. L R 19 Cal. 643. 
 
 ■' Secretary v. Nitye, I. L. R. 2i Cal. 38; Karmi v. Brojo, I. L. R. 
 22 Cal. 244. ' Aa V ( B. C. ) of 187s, Sec 42. 
 
 * Gokhul V. Jodu, I I.. R. 17 Cal. 721.
 
 RECORD OF-RIGHTS. 379 
 
 ing with the powers and duties of a revenue-officer, and 
 the powers of Special Judges appointed under the Act 
 and of the High Court on second appeal are not free 
 from ambiguity, and the rulings thereon are con- 
 sequently not quite in harmony. The jurisdiction 
 of the ordinary Civil Courts to modify the awards of a 
 revenue-officer in matters, which come within his powers 
 and duties, is also very doubtful. 
 
 The revenue-officers entrusted with the duties of re- Remarks, 
 cording the rights of the tenantry in large areas and 
 revising their rents may be excellent executive officers, 
 but are not generally persons who have proper judicial 
 training. The procedure adopted by them is practi- 
 cally summary, and the people have not much con- 
 fidence in their decisions. The circumstances, which in- 
 duced the Government of Bengal to repeal Act X of 1859 
 in the Regulation districts and to transfer in 1869 the 
 jurisdiction in the trial of cases between landlord and 
 tenant to the ordinary Civil Courts, exist even at the pres- 
 ent day, and although in theory the Collectors of 
 districts and their subordinates may be supposed to be 
 more conversant with questions about land— its produce 
 and productive power — in any particular locality than the 
 local Moonsiffs and Subordinate Judges, the truth seems 
 to be that they are far inferior to the latter in judicial 
 power and acumen. All that can be said in favour of the 
 executive officers is that they have a rough and ready 
 way of cutting gordian knots. However that may be, 
 Chapter X of the Bengal Tenancy Act requires consid- 
 erable modifications. The experience of ten years since 
 the passing of the Act should be utilised without any 
 bias for either the executive or the judicial officers of the 
 Crown. All necessary powers for the satisfactory and 
 final adjustment of the various kinds of disputes that 
 may and do frequently arise in recording or settling rents 
 and determining the relationship of landlord and tenant, 
 — in finally determining all the particulars noted in
 
 ■380 
 
 RAIYATS. 
 
 section 102, — should be given to competent officers, and 
 appeals to the highest tribunal in the country should 
 be allowed on all questions of vital importance, so that 
 there may be complete finality and no conflict of juris- 
 dictions after trial by one set of judges. Summary 
 decisions based on present possession and references 
 to or revision by Civil Courts leading to suspension 
 of proceedings are anomalous and productive of 
 mischief. 
 Objeaionsto After making the necessary enquiries by survey 
 
 particular en- ^^^^ measurement and taking evidence as to rates of 
 rent &c., a revenue-officer is required by section 105 
 of Act VIII of 1885 to publish locally a draft record 
 called the khasra^ If objections are made as to 
 particular entries, he should decide them,^ and an appeal 
 lies against his order as to any particular entry to the 
 Special Judge appointed by the Local Government under 
 section 108. The decision of the Special Judge may 
 be revised by the High Court in second appeal, if 
 there is merely a record-of rights and not a settlement 
 of rent.^ The decision thus arrived at after a dis- 
 pute as to any particular entry seems to be final and 
 conclusive.* As regards undisputed entries, there is 
 a presumption as to their correctness until the contrary 
 is proved.* 
 Duties of a Rent may be settled under section 104 on the 
 
 revenue- ani.lication of either the landlord or the tenants. The 
 
 officer settling rr , , , . , cc • , l\- 
 
 rent. rules of lavv that should guide a revenue-othcer m settling 
 
 rents are not given in chapter X of the Act, but he is 
 api)arently bound by the same rules as a Civil Court in 
 particular cases of enhancement or abatement of rent.' 
 In a proceedinjy under section 104, rent may be en- 
 hanced or r< duced and the rates of rent may be 
 
 ' Rules framed by the f^oca! Govern mnnt Nos. 20 to 34. 
 ■' Aa VIII of 1885, Sec. 106. ' Ibid, Sec. 108. 
 
 ' Ibid, Sec, 107. ' Ibid, Sec. 1O9. 
 
 • Gouri V. Reily, I. I.. R 20 Cal 579.
 
 NON-OCCUPANCY RAIYATS. 
 
 3>i 
 
 has operation. 
 
 equalised with respect to the raiyats as a mass. 
 
 Either the landlord or the raiyats or any of them may 
 
 contest the enhancement or abatement of rent, as the 
 
 case may be, and the Special Judge appointed by the 
 
 Local Government may hear appeals against the orders 
 
 of a revenue officer on such objections.' No second 
 
 appeal, however, lies to the High Court in a case of 
 
 settlement of rent, the decision of the Special Judge 
 
 being final.* 
 
 When rent is settled under chapter X, it takes effect When and for 
 e I 1 ■ . r ,1 • I. 1 ,. sl what period 
 
 from the beginning of the agricultural year next altt-r rent settled 
 
 the final publication of the record by the revenue-officer.^ 
 Except on the ground of landlord's improvement or sub- 
 sequent alteration in the area of a tenure or holding, the 
 rent so settled is not liable to any alteration for a period 
 of fifteen years from the date of the final publication of 
 the record in the case of an occupancy-raiyat or five 
 years in the case of a non-occupancy-raiyat. 
 
 The agrarian disturbances in the district of Pabna 
 and parts of the districts adjoining it had induced 
 the Government of Bengal to pass a short Aci* 
 known as the Agrarian Disputes Act of 1876. The 
 special procedure laid down in that Act was applicable 
 only in exceptional cases, where the relation between 
 the landlord and the tenants as a class was very much 
 straitened. Section 112 of the Bengal Tenancy Act has 
 conferred upon the Local Government the same powers 
 as the Agrarian Disputes Act. These powers have 
 not been exercised in recent years. The Local Gov- 
 ernment may exercise its powers only with the previ- 
 ous sanction of the Governor General in Council. 
 
 Agrarian Dis- 
 putes Aft. 
 
 ' Aa VIII of 1885, Sec. 108. 
 
 "^ Shewbarat i». Nirpat, I. L R. i6 Cal. 596; Lala Kirut Narain r. 
 Palukdhari, I. L. R. 17 Cal. 326 ; Gopinath v. Adoita, I. L. R. 21 Cal. 
 776 ; Anand v. Shib, I. L. R. 22 Cal. 477. See also Upadhya v. Persidh, 
 I. L. R. 23 Cal. 723. 
 
 » Aa VIII of 1885, Sec. no. ^ Aa VI (B.C.) of 1876.
 
 382 
 
 RAIYATS. 
 
 Enhancement 
 of the rent of 
 a non-occu- 
 pancy raiyat. 
 
 The rent of a non-occupancy-raiyat may be enhanced 
 under the procedure laid down in section 46 of the Ben- 
 i^al Trnancv Act. The Court is required to find out what 
 rent is fair and equitable, which, in the words of the 
 Bengal Tenancy Act, should be determined by reference 
 to rents generally paid by raiyats for lands of similar des- 
 cription and with like advantages in the same village. If 
 the raiyat agrees to pay the rent so determined, he is 
 entitled to remain in occupation of his holding at that rent 
 for a term of five years from the date of the agreement. 
 But on the expiration of that term, his rent may be 
 again varied, and he maybe called upon to pay what the 
 Court may consider fair and equitable at the time. The 
 rules as to enhancement of rent are necessarily much 
 the same as those w^ith respect to occupancy-raiyats, 
 though non- occupancy raiyats have not many of the 
 privileges of occupancy-raiyats. A revenue-officer may 
 in a proceeding under chapter X settle the rents payable 
 by non-occupancy-raiyats in any local area in accordance 
 with the rules laid down in section 46, and the rent of 
 a holding so settled cannot also be varied within five 
 years, except for alteration of area or improvement by 
 landlord.
 
 LECTURE XII. 
 
 ••>^*&>«CO*S<- 
 
 NON-AGRICULTURAL LANDS. 
 
 In ancient times, the three principal sources of a Sources of 
 
 king's revenue in India were his share in the pro- revenue in 
 ° • Ancient 
 
 duce of agricultural lands [vali^, taxes levied upon India, 
 homestead lands either in villages or towns {kara) and 
 taxes realised from persons carrying on trades and in- 
 dustries [sulka\ The great lawgiver says — '' The king, 
 who receiving va/i, kara and sulka does not afford pro- 
 tection to his subjects, goes into hell."' 
 
 Of these three sources of royal revenue, the most im- Vali. 
 portant was vali, and reference was frequently made to 
 it by the text-writers.* The Anglo-Indian Government 
 has, like the Mahomedan Government, devoted its best 
 attention to this important branch of royal revenue and 
 to the protection of the agricultural population by whom 
 it is payable. 
 
 In ancient days and throughout the Hindu period, Kara, 
 the word kara was used for money-rent payable 
 for land, as distinguished from a share of the pro- 
 duce of agricultural lands. The money-rent payable 
 for homestead lands by artisans, tradesmen and 
 labourers, quit-rent paid by persons who were favour- 
 ed by the king and who held under royal grants, 
 and all other taxes paid for the use and occupation of 
 land or water came within this branch of revenue. In 
 agricultural villages, a shop-keeper supplying articles 
 to the agricultural population was required to pay the 
 
 TTfcTVFTJT^ ^?!f^ ^ ^^51^^ S^rJ || — Manu, Chap. VllI, 307. 
 « Ante p. 8
 
 -g^ NON-AGRICULTURAL LANDS, 
 
 tax known as kara for his homestead land. The income 
 from this source, however, was small, and very little im- 
 portance was attached to it, though the freak of language 
 has transmitted the word to the present day, and it has 
 now a much wider significance, and the word 7'^// has 
 dropped down in the course of time. 
 g^H^a Sulka (duties) which included various items of income, 
 
 such as market-dues, duties on articles imported and ex 
 ported and the fees realised from mechanics and artisans, 
 became more and more an increasing source of income 
 with the progress of society. In the later Hindu period 
 and during the Mahomedan period, it played a very im- 
 portant part in the finances of the Indian government. 
 
 The homestead lands occupied by the higher classes 
 Homestead ' ,. . n 
 
 lands of people in Indian society were generally revenue- 
 
 free the exemption being due to causes which I 
 have already attempted to explain.' The homestead lands 
 of the agricultural population and their udbastu 
 i.e. lands outside the homestead but necessary for 
 other than agricultural purposes, went along with their 
 arable fields, and even when rent was separately payable 
 for them the incidents were generally the same as 
 those of arable lands.- If a raiyat holds a piece of 
 land as a part of an agricultural holding, all the incidents 
 "" ' of occupancy-right attach to it, as to the rest of the 
 lands in the holding. If it is not a part of an agricultural 
 holding, but is land in the- same village, held under the 
 same landlord and necessary for the habitation of the 
 raiyat and his family, local custom and usage regulate its 
 incidents; and, subject to such local custom or usage, the 
 provisions of the Bengal Tenancy Act are api)licable.-'' 
 But as regards homestead lands of a character different 
 from either of the above, the Rent Acts of 1859 and 
 
 ' Ante p. Ti"? 
 
 » Ante p.317. See Aft VIII of 1885, Sec 182 Mohesh v Bishonath, 
 
 24 W R- 402. 
 
 ' A/'l Vill of i88s,Sec. 182 Nyamutoollah v. G<)vind,6 W.R. (Afl X) 
 
 40 ; Fogose r. F;.jee, 22 V . F.511 ; I Ksurrc 7 jipvr. ir C 1 \< 25.
 
 HOMESTEAD-LANDS. 385 
 
 i86g and the Bengal Tenancy Act have no application 
 to them.' If a raiyat holds agricultural land under one 
 landlord and homestead-land under another, he cannot 
 acquire a right of occupancy in the latter. A person 
 who has acquired a piece of land for residence and 
 not for cultivation is not a raiyat with respect to it, 
 if it is not a part of an agricultural holding. The 
 holding of agricultural land in one village does not 
 entitle a person to be a " settled raiyat" with respect to 
 homestead-land held in another village or under a dif- 
 ferent landlord. The mere fact that a person cultivates 
 land himself or by hired labour does not make him 
 a raiyat with respect to land held by him for a shop 
 in an adjoining town. An indigo planter, who has ac- 
 quired a right of occupancy with respect to indigo lands, 
 may have his residence in the civil station of the 
 district in which he has his factory, or a tea planter may 
 have similar residence within the municipal limits of 
 the town of Darjeeling, but he is not entitled to claim 
 a right of occupancy with respect to the land held by 
 him for such residence, 
 . There are no legislative provisions as to non agricul- The law ap- 
 
 tural lands, except such as are contained in the Trans- pi'cable to 
 
 '^ non-agncul- 
 
 fer of Property Act, the Indian Contract Act and tural lands. 
 
 stray sections in the Revenue and Rent laws. Act 
 X of 1859 and Act VIII (B. C.) of 1869, as I have said, 
 did not touch the question of the rights and liabili- 
 ties of tenants of homestead and other non-agricultural 
 lands, though the ever-increasing population, agricul- 
 tural as well as non-agricultural, demanded legis- 
 lation. When Act VIII of 1885 was in course of 
 preparation, an unsuccessful attempt was made to 
 have a comprehensive code for lands agricultural 
 as well as non agricultural. The rules of justice, equity 
 
 ' Kalee -v. Kalee, 1 1 W. R 183; Nymooddee v. Moncrieff, 12 W. R. 
 140; Kylash t;. Wooma, 24 W. R. 412; Colledor i'. Hakim, 25 W. R. 
 136; Purna v. Sadut, 2 C. L. R. 31. 
 
 W (l)
 
 386 NON-AGRICULTURAL LANDS. 
 
 and good conscience are not always easy of access, 
 and mistakes are common. Custom and local usage are 
 generally difficult to prove. The invocation of the prin- 
 ciples of the law of landlord and tenant, as it prevails 
 in England, without reference to the instincts and con- 
 ditions of life of the people of this country, is occasion- 
 ally a source of great mischief. Trained in England^ 
 trained in thoughts peculiar to the English people, 
 mary of the judges and lawyers in this country believe 
 the English rules of land-law to he the most equit- 
 able and just, and they are tempted to apply them to 
 tenancy in this country, whenever they have to decide 
 cases according to justice, equity and good conscience 
 Even the Legislature is not entirely free from this vice 
 of adopting exotic principles, without regard to the 
 customs and habits of thought of the people to be gov- 
 erned by them. To a nation which has the most sacred 
 regard for the land wliere its ancestors lived, to persons 
 who have extraordinarily deep affection for ancestral 
 homesteads — dearer than heaven itself, the idea that no 
 right can be acquired in homestead-land, however long 
 the period of occupation may be, is repugnant in the ex- 
 treme. People have generally a notion that the holder 
 of a piece of homestead-land acquires by long occupation 
 the right to continue in possession of it, and the legal 
 profession and the judges have very frequently to un- 
 deceive them. The hardship of the law, as it is at 
 present administered, is well known. An abortive 
 attempt was made to remedy the evil by legislative 
 enactment, but the opposition was strong. There is now 
 no chance of the legislature interfering in the matter, at 
 least for sonie time to come. 
 The Transfer Tht- chapter on Lt^ases in the Transfer of Prop 
 
 Aa'nora'ppli. c''ty ^^^ '^ short, and the interpretation of the 
 cable to con- few sections is not always easy. For the sake of 
 
 trafts made . i 1 n i * ii *. 
 
 before it came Convenience, however, 1 siiall adopt the arrangement 
 into force. given in the Act. Muth of \n hat has already been said as
 
 HOMESTEAD-LANDS. 3^7 
 
 to the incidents of temporary leases applies to leases of 
 non-agricultural lands. The relationship between the 
 landlord and tenant may, however, be complicated by 
 substantial structures being raised on the land. But it 
 is doubtful how far the rules laid down in the Transfer 
 of Pro|)erty Act may regulate the incidents of tenancies 
 created before it came into operation. Substantive laws 
 do not, unless retrospective effect be clearly intended to 
 be given, affect the vested rights of parties,' and the 
 Transfer of Property Act has also expressly provided 
 in section 2 that " nothing contained in the Act 
 shall be deemed to affect any right or liability arising 
 out of a legal relation constituted before the Act 
 came into force, or any relief in respect of any such 
 right or liability." If, according to the law, as under- 
 stood before the passing of the Act, a tenant of home- 
 stead-land, who had been allowed by the landlord to erect 
 buildings on it, had the right to erect further buildings, 
 for the accommodation of himself and his family, section 
 108, cl. (p) ought not to affect that right. The Act 
 itself is not exhaustive. It defines and amends certain 
 parts only of the law relating to voluntary transfers 
 uiter vivos,"^ and does not affect the terms of any 
 contract not inconsistent with the provisions of the 
 Act." 
 
 As in the case of agricultural lands, the notion No right can 
 
 that now underlies all tenancies of homestead-lands ^ ^^^""'^'^ 
 
 by mere oc- 
 as also other non-agricultural lands is that the absolute cupation by a 
 
 proprietary right is in the landlord. He may, by *^"^"'- 
 creating a subordinate tenure, have his right curtailed 
 to the extent indicated by the contract, but the 
 tenant in actual occupation has ordinarily no other 
 right than what is given expressly or by neces- 
 sary implication by it. Custom and local usage may 
 
 ' Maxwell on the Interpretation of Statutes, 2nd Ed., p 2-57 
 '^ Afl IV of 1882, Preamble. 
 » Ibid., Sec. 2, ci. {b).
 
 388 NON-AGRICULTURAL LANDS. 
 
 import rights and liabilities not inconsistent with the 
 express covenants in the contract. In the absence 
 of any unambiguous condition as to the duration 
 of a lease, a tenant holds from month to month or 
 from year to year, and is liable to be ejected after the 
 service of a proper notice to quit. The tenant acquires 
 no right by mere occupation. He has no statutory right 
 as his agricultural neighbours have. Rent may be en- 
 hanced at the option of the landlord after the expiration 
 of the term of the lease, and ordinarily the law places 
 no limit to his demand. 
 The Revenue- Regulation XLIV of 1793, the first law passed for 
 
 Sale Laws as,,,,,,^ /• Jii^ 
 
 to homestead- the sale of estates for arrears of revenue, encouraged the 
 ^^nds. erection of buildings or dwelling houses by enacting 
 
 that a purchaser on a sale for arrears was not entitl- 
 ed to eject tenants who had erected dwelling houses on 
 the lands leased to them by the defaulter.^ This pro- 
 vision was repeated in the Sale Laws passed from 
 time to time, and has still a place in the existing laws 
 for the sales for arrears of revenue^ or rent^. This^ pro- 
 tection from eviction extends to leases of land where- 
 on manufactories and other permanent buildings* have 
 been erected and lands whereon tanks, permanent 
 gardens, plantations, canals, places of worship and burn- 
 ing and burial grounds have been made. A sale free of 
 encumbrances vests in the purchaser the right to cancel 
 all perpetual leases granted by the defaulter ; but though 
 a permanent lease at fixed rent of land made for the 
 erection of buildings or manufactories may be cancelled 
 on a sale for arrears, the tenant must be allowed to re- 
 main on the land on payment of fair and equitable rent, 
 
 ' Reg. XLIV of 1793, Sec. 9. 
 
 ' Aa XI of 1859, Sec. 37,cl. (4^; Act VII ( B. C. )of 1868, Sec 12, 
 
 cl. (4) 
 
 • Aft VIII of 1885, Sec. 160, cl. (<-) 
 
 « AaXI of 1859, Sec. 37; Aa VIII of 1885, Sec 160, cl (c). 
 Bhago V. Ram, I. L R 3 Cal. 293 ; Ajgnr 7', Asmiit, 1 L. R. 8 
 C«l. 1 10
 
 HOMESTEAD-LANDS. 389 
 
 the land beiii^ liable to be assessed at a higher or pre- 
 vailing rate, without reference to the original contract. 
 Ejectment does not necessarily follow the cancellation of 
 a lease. 
 
 A suit for the enhancement of rent of non-agricultura 1 Suits for en- 
 
 11 1 • /■ 1 hancement of 
 
 land, when the law does not allow the ejectment or the rent of home- 
 tenant on the expiry or cancellation of his lease, is stead-lands. 
 m lintainable in the ordinary Civil Courts. ^ There were 
 many instances of enhancement of rent through 
 the medium of the Revenue Courts, when Act X of 
 1859 was in force and the Act was supposed to 
 apply to all kinds of tenancies, but according to 
 the view taken by most of the judges of the High 
 Court,' the Revenue Courts had no jurisdiction to 
 entertain suits with respect to homestead-lands, and 
 the decrees passed by them were ultra vires. If a 
 tenant, however, has paid at the enhanced rate according 
 to lay di^rei pissed by a Revenue Court, i that fact 
 win go against the permanency of the tenure, but the 
 judgment and decree are inadmissible for any other pur- 
 pose, having been passed by an incompetent court. 
 There is no codified law for a suit for enhancement of 
 rent of non-asTricultural lands. Section 1 1 of the Code of 
 Civil Procedure (Act XIV of 1882 empowers the Civil 
 Courts to entertain and try all suits of a civil nature ; and 
 in trying a suit for the enhancement of rent of non-agri- 
 cultural land, a Court must act according to principles 
 of justice, equity and good conscience. 
 
 It has been held that a proper notice of enhance- Notice of 
 
 , • 1- • i •». r iU enhancement, 
 
 ment is a necessary preliminary to a suit tor the 
 
 enhancement of rent of non-agricultural land, just 
 
 as it was in suits for enhancement under Act X of 
 
 1859 and Bengal Act VIII of 1869. ^ But with the 
 
 repeal of the procedure laid down in those Acts and the 
 
 ' Thomas v. Greedhur, \V. R., Sp. Vol. ( Aft X ) 9. 
 ^ Ante pp. 285-6. 
 ' Ante pp. 373-4.
 
 39° NON-AGRICULTUKAL LANDS. 
 
 substitution of the procedure in Act VIII of 1885 dis- 
 pensing with the previous service of any notice, the 
 procedure in suits for enhancement of rent of non-agri- 
 cultural lands ought to be changed as an unnecessary 
 preamble. I think no notice will now be deemed necessary, 
 and our Courts must determine what rent is fair and 
 equitable, whenever rent is enhanceable by suit and 
 the landlord wants an increase. A decree for enhance- 
 ment may be directed to come into operation at a 
 reasonable time subsequent to the institution of the suit. 
 Plantations Tenants holding permanent gardens and plantations 
 
 and gardens, ^j.^ protected, if the Occupation of the tenant has been 
 long enough for the acquisition of occupancy-right ; but 
 the protection afforded by the Sale Laws extends to all 
 leases without reference to the period of occupation by 
 the tenant. The general incidents of the tenancy of land 
 used for purposes other than agricultural are the same 
 in all cases. ^ Julkars or fisheries as also lands used for 
 hats^ bazars and shops come within the same category. 
 
 Duration of ^ lease is a transfer of the lease-hold premises to 
 
 leases. be held by the lessee under the covenants and con- 
 
 ditions expressed in the contract or implied by law, 
 and the lessor may create any interest in the lessee, 
 sanctioned by the policy of law, within the limit of 
 his own interest in the property.'- A full owner 
 in possession may demise land i)n any terms and 
 conditions, consistent with the policy of law. A contract 
 of lease binds the heirs, representatives and assigns, 
 of the lessor as well as the lessee with respect to 
 covenants that run with the lands. ^ Even if the lessor is 
 not in possession and has merely a right to possession, 
 he may grant a lease which is to come into operation 
 as soon as he is entitled to actual possession. A mere 
 right of entry, whether immediate or future, may be 
 
 ' Gobind V. Joy. I L R. 12 Cal. 327 
 
 '' kt\. IV of 1882, Sees. 105 and 108, cl. (>. ) 
 
 " Antu pp. 225-6.
 
 DURATION OF LEASES. 39 I 
 
 demised by a lease ; but a lessor who has a right to re- 
 enter only on a breach of condition by a lessee cannot 
 give the right to a new lessee to sue upon the 
 breach of the condition/ Neither can a person, en- 
 titled to the possession of immovable property on the 
 death of a Hindu female, bind himself by a lease execut- 
 ed by him during the life time of such a female, his 
 right being a me>'e possibility j but he may give a 
 valid title to a lessee, which may enure after her 
 death, by assenting to the lease. The holder of an 
 estate for life or a person holding an estate for a term 
 of years may grant leases, but they cannot enure 
 beyond the life or the term of the lease of the grantor 
 himself. On the determination of the lease, the true 
 owner is entitled to the possession of the land in the 
 same state in which it was at the date of the demise. 
 
 In the absence of a contract or distinct proof of cus- Tenancies 
 torn or local usage, a tenancy for manufacturing from year to 
 purposes is deemed, according to the Transfer of 
 Property Act, to be a lease from year to year, and 
 a tenancy of ordinary homestead-land to be a lease 
 from month to month.- Leases of land in the mofussil 
 are, however, with rare exceptions, annual, the rent 
 being payable according to the Bengali Calendar, where 
 the Bengali year prevails, or the Fusli or Wilaity 
 Calendar. In Bengal proper, a year of tenancy generally 
 ends on the last day of Chaitra, and in Behar and Orissa 
 on the last day of the lunar month of Bhadra. Notwith 
 standing what is contained in section io6 of the Trans- 
 fer of Property Act, the vasi majority of leases of 
 non-agricultural lands are thus from year to year, termin- 
 able only at the end of the year. Tenancies from month 
 to month are only found to exist in very populous 
 cities and within municipal limits. In fact, having re- 
 
 ' Hunt V. Bishop, 22 L. J. Ex, 337; Hunt v. Remnant, 23 L. J. Ex. 
 * Aa IV of 1882, Sec. 106.
 
 392 
 
 NON-AGRICULTURAL LANDS. 
 
 gard to the well-known practice in the mofussil of the 
 country, leases of immovable property ought to be held, 
 from very slight evidence, to be from year to year, in the 
 absence of well-proved contractor local custom or usage 
 to the contrary, notwithstanding that the Transfer of 
 Property Act has laid down a contrary rule/ A Tenancy 
 from year to year can be determined only by a six- 
 months' notice to end with the last day of the year."-^ 
 Transferabi- These leases are transferable absolutely or by way 
 
 lity. of mortgage, though, notwithstanding the transfer, the 
 
 original lessee does not cease to be subject to any 
 of the liabilities attaching to the lease. The transferee 
 of such interest may again transfer it.'^ But the express 
 terms of a contract or any local usage, which must be dis- 
 tinctly proved in each case, may make a lease of non- 
 agricultural land non transferable. The fact that in an 
 ordinary lease of agricultural land, the right of an oc- 
 cupancy or non-occupancy raiyat is not transferable by 
 law, leads people to think that leases of homestead-lands 
 are also non-transferable. Before the Transfer of Prop- 
 erty Act came into force, the law was supposed to be 
 that without an express contract and in the absence of 
 local usage, tenures of non agricultural land were not 
 transferable.* In Noraindra Narain Rai v. Ishan 
 Chandra Scn,^ it was held that on the transfer of a right 
 of occupancy, the transferee, in the absence of custom 
 or established local usage, became a trespasser; and 
 the same rule was applied to leases of non-agricultural 
 lands. But in Bcnimadhab Banerjcc v. Jaiknshna 
 Mtikerjce^ Peacock C. J., said, — " Speaking for myself, 
 I should say that if one man grants a tenure to another 
 
 ' Kishuri v. Nund, 1. I.. R 24 Cal. 720. 
 
 '■' Kistiori V. Nundkumar, I L R. 24 Cal 720. 
 
 » Aa IV of 1882, Sec. 108, cl. (;■). 
 
 ' Kripa V. Dtirpa, I. L. R. 15 Cal 89. 
 
 ■■138. L. R. 274, sr., 22 W. R. 22. Sec ante pp. 299-300. 
 
 • 7 B. L. R. 152, sc, 12 W. R. 495.
 
 WASTE. 
 
 393 
 
 for the purpose of living upon the land, that tenure, in 
 the absence of any evidence to the contrary, would be 
 assignable. I know of no law which prohibits a man 
 who gets land for the purpose of building from assigning 
 his interest in it to another. By assigning his interest, 
 he does not necessarily get rid of his liability to pay 
 the rent reserved. A tenant who assigns his interest does 
 not, in my opinion, commit such forfeiture of his rights 
 as to entitle the lessor to treat such rights as altogether 
 non-existent, and to turn him out of possession." 
 
 In the absence of a contract or local usage to the Heritdbilitv 
 contrary, the right of a lessee is heritable and is capable 
 of being bequeathed according to the laws of testament- 
 ary and intestate succession. 
 
 During the continuance of the lease, the lessee Misuse of 
 
 is bound to use the land as a person of ordinary 'and during 
 
 . lease, 
 prudence would do.^ He must not use or permit 
 
 another to use it for a purpose other than that for 
 which the lease has been granted.- Land let out for use 
 as homestead ought not to be used for digging a tank, 
 nor has the tenant the right to dig earth for the pur- 
 pose of making bricks. Sucli a use oi the land is 
 opposed to the original purpose of the tenancy and is 
 supposed to deteriorate its value. ^ 
 
 In the absence of an express contract, a temporary Working 
 lessee is also not entitled to work mines or quarries, not mines or 
 
 • I quarries. 
 
 open when the lease was granted, or to commit any other 
 act which is permanently injurious to the land de- 
 mised.^ But I think a person, holding under a perma- 
 
 ' Aft VIII of 1885, Sec. 108, cl. (o) ; Ramanadhan v. Zamindar of 
 Ramnad, I.L.R. 16 Mad. 407. See also Meux v. Cobiey, 2 Ch. (1892) 
 
 253- 
 
 * Bholai V. The Rajah of Bansi, I. L. R. 4 Ail. 174; Noyna x/. 
 Rupikun, I. L R. 9. Cal. 609. 
 
 ' Nicholl V. Tarinee, 23 W. R. 298 ; Tarini v Debnarayan, 8 B. L.R. 
 App. 69; Manindro r. Moneeruddeen, 1 1 B. L. R. App. 40 ; Laksh- 
 mana v. Ramachandra, I. L. R. 10 Mad. 351. 
 ' In re Purmanandas, I. L R. 7 Bom. 109. 
 
 X(l)
 
 394 NON-AGRICULTURAL LANDS. 
 
 nent lease in which there is no reversion to the land- 
 lord, has the right to open mines, and if he does so, his 
 act, unless there is an express covenant to the contrary, 
 does not amount to legal waste. When the lease is 
 granted by a proprietor not ior any specified purpose, 
 and he reserves only the right to receive quit-rent in per- 
 petuity, such a use of the land cannot affect him Perma- 
 nent leases are practically conveyances of land, and it 
 seems to me that the lessees have full right to use the 
 lands demised as they please, provided there is ample 
 security for the proprietors' dues. Prima facie, the 
 owner of the surface is entitled ex jure naturx to every 
 thing beneath or within it.^ The working of mines does 
 not, as a rule, permanently injure the land or destroy it 
 to the detriment of the landlord's interest. The same 
 thing may be said as to the working of quarries. The 
 evident intention of the framers of the Transfer of Prop- 
 erty Act, in inserting clause (o) in section 108, is to 
 prevent temporary lessees from doing such acts as 
 may affect the value of the demised premises, and to 
 secure, on the termination of a lease, the restoration of 
 the property, in as good a condition as it was at the lime 
 when the tenant was first put into possession. In cases of 
 permanent leases, their termination is never in the con- 
 templation of ihe parties. It is no doubt the duty of a 
 tenant to krep the property, as much as possible, in the 
 same condition as it was at the beginning of the lease, 
 but the duty is imperative only where the landlord has any 
 thing to lose by a change inconsistent with the original 
 purposes of the tenancy. A lessee or a tenant for life or 
 for years has, as between himself and his lessor or the 
 reversioner, the right to work open mines and quarries.'' 
 But he is not entitled, it seems, to open or work a new 
 
 ' Smith V. Darby, L. R. 7 Q. B. 716 (722) ; Newcomen v. Coulson, 
 5 Ch. L). 133 (142) ; Kpremonf v. Egremont, 14 Ch. D. 158 (162). 
 
 ' Owen I-llias v The Siiowdon Sl;ite OnarricsCo., L R. 4 App. Cases 
 454 ; Tuckf-r v. Linger, L R. 8 App. Cases 508.
 
 WASTE. 395 
 
 mine or quarry. Such an act on his part amounts 
 to legal waste.' The words of section io8. cl. (o.) 
 are, however, very broad, and apparently includes 
 leases of all kinds, irrespective of their duration and 
 nature. You should remember that the law does not 
 import any distinction between the surface and the 
 underground, when the contract of lease does not 
 convey it in express terms. 
 
 According to the law as laid down by the great law- Right to 
 giver of ancient India, the king is entitled to a half ^j^^Tng'^^^' 
 share of hidden treasures underneath the earth and Hindu Law. 
 of minerals, as his share for the protection afforded by 
 him to his subjects.'- Medhatithi . in commenting on the 
 word mineral \dhatii), includes in it gold, silver, iron, 
 Vermillion, collvrium and all other minerals to be worked 
 out of the earth or found in hills and other places. ^ 
 He adds that the king's share is not necessarily a half, the 
 word 'half \ardha) being illustrative only, the king being 
 entitled to a sixth or any other share according to custom. 
 The text and the gloss, however, refer to a state of things 
 quite different from what we have at the present day. 
 The Anglo-Indian Government has, by the Permanent 
 Settlement, accepted fixed sums as revenue in lieu of all 
 the rights it had either as proprietor of the soil or as the 
 prot-iCtor of its subjects. It reserved no right whatsoever, 
 except as to treasures under the Treasure Trove Act.* 
 
 ' A<S IV. of 1882, Sec. 108, cl. (o). The law as to mines is in a 
 doubtful state in Bengal. As regards Ghatwaii lands see p. 263. See 
 also Gordon Stuart & Co. v. Tikaitnee, W. R. ( 1864 ) 370. 
 
 Manu, Chap. VIII., 7' 39. 
 
 ^siffT ?ft^I q^mf^^ ^f't^f^^lf^WI'J^q^^ftl * * •* ^^vrTflfrl 
 
 ^j^^33^'gjfjj^^^^l_.A/<'rf^«^j7/n'i- Commentary. See also Nandan's 
 
 Commentary—^^Itji^t f^T^itgif^^t^'r^OTlt ^f'^T^lf^S'^I'in^T I 
 * Aft VI of 1878.
 
 3^6 NON-AGRICULTURAL LANDS. 
 
 Minerals must necessarily pass with the right to the 
 surface. The present theory of the proprietary right 
 of the Government is not consistent with the Hindu 
 theory of the king's right to a share of the pro- 
 duce or of hidden treasures and minerals, and the 
 Ancrlo-lndian Government, having accepted and acted 
 upon the theory of the proprietorship of the soil, cannot 
 now claim a share of the minerals on the latter theory. 
 The transfer to permanent tenure-holders of the right 
 which the zemindars derived from the government nec- 
 essarily conveys the right to the minerals underneath. 
 Ereaion of The lessee must not, without the lessor's consent, 
 
 permanent erect on the property any permanent structures.^ If 
 land is let out for use as homestead by raising struc- 
 tures, siich as are ordinarily used in this country— the 
 structures being easily removable, —the erection by the 
 tenant of brick houses not easily removable is an use of 
 the land to which the landlord may object. If, however, 
 the landlord, instead of objecting to the erection of a 
 brick-house, remains passive and allows it to be 
 built, knowing that his security for rent would 
 be enormously increased by it, he should not after- 
 wards be allowed to sue the tenant for misuse of 
 the land-. The landlord may restrain his tenant 
 from erecting without his consent substantial build- 
 ings by getting an injunction issued in time;* 
 but it is contrary to all principles of equity and 
 good conscience to allow him to insist upon the 
 removal of a building at the termination of the 
 ^'''^^'" lease. It is, therefore, an obligation in the tenant 
 
 not to erect such building as would throw obstacles 
 to th(; landlord's undoubted right of re entry at the 
 termination of the lease. The right of the tenant 
 to remove, during the continuance of the lease, all 
 
 ' Aa IV. of 1882, Sec. 108, cl. (/»). 
 
 • Noyna v. Rupiknn, I. L. R. 9 Cal. 609 
 
 ' Jagganath v. Prosonno, 9 C. L. R. 22i.
 
 DETERMINATION OF LRASKS. 397 
 
 things he has attached to the earth' is one for his 
 own benefit, which he may or may not avail himself of. 
 If he wishes to continue on the land having without objec- 
 tion raised during the term of the lease substantial struc- 
 tures, the landlord cannot eject him. No Court will 
 permit a man knowingly though passively to encourage 
 another to lay out money in improving his property, and 
 then to assert his legal right against him, without, 
 at least, making him pay full compensation for the money 
 that has been expended. Equity intervenes and prevents 
 the landlord from turning out a tenant who has erected 
 substantial structures on the land,'^ to his knowledge or 
 with his consent, which may be presumed from his previ- 
 ous non-action. If he waits till the building is completed, 
 and then asks aCourt of justice to eject the tenant or have 
 the building removed during the pendency of the lease, 
 a mandatory injunction will not generally be granted. 
 It is always in the discretion of the Court to grant injunaion. 
 injunctions or not. But Courts of law are always reluc- 
 tant to help a man, though he may have an undoubted 
 right, if he is guilty of laches.^ The circumstances 
 of each case must be taken into consideration, and if the 
 injured man comes into Court at the first opportunity 
 after the building has been commenced, an in- 
 junction may be granted. But if the plaintiff has not 
 brought his suit or applied for an injunction at the 
 earliest opportunity, but waited till the building has 
 been finished, and then asks the Court to have it 
 
 ' Aa IV of 1882, Sec 108, cl. (A). 
 
 * D inn V. Spurrier, 7 Ves. 131 ; the Rochdale Canal Co v. King, 
 16 Beav. 630 ; the Somersetshire Canal Coal Co. v. Harcourt, 24 Beav. 
 571 ; Ramsden 7/. Dyson, L R i E. & I. A C. 129; Musst. Rani v. 
 Sheikh Jan, 3 B L. R., A C, 18; B^ni v Jai, 7 B. L R. 153, sc , 12 
 W. R. 495; Durga 7;. Brindabun, 7 B. L. R 159; Braja ^;. Stewart, 8 
 B. L. R App. 51 ; Shib v. Bamun Das, 8 B L. R. 237, sc, 15W. R. 
 360. See Aa IV of 1882, Ser. 15 
 
 » The Shamnugger Jute Faaory v. Ram Narain Chatterjee, I. L. R. 
 14 Cal. 189
 
 ■mS NON-AGRICULTUR\T. I.ANDS. 
 
 removed, a mandatory injunction will not generally be 
 granted. A mere notice not to continue the erection of 
 a building, when not followed by legal proceedings, is 
 not a sufficientlv special circumstance for granting such 
 a relief.' It ha-^, however, ^been held in some cases that 
 a tenant's bona fides should be taken into considera- 
 tion, and if he knowingly did an act to the prejudice of 
 his landlord, equity would not help him.^ 
 D .. „ You have seen that under the law, as is now ad- 
 
 rresumption 
 
 of perma- ministered, occupation of homestead-land, whatever 
 
 nency from ,, ., uj i i'lii. a. 
 
 longoccupa- the period may be, does not create in the tenant 
 "o" any right to continue on the land after the de- 
 
 termination of the lease, which may be effected by 
 a legal notice to quit.^ A presumption of per- 
 manency may, however, arise from long occupation 
 at uniform rent, if the original grant is lost and is not 
 provable. The conduct of the parties may raise an 
 inference that the lost errant created a permanent 
 tenure. It has been held that where land is let out 
 for the tenant's residence, and he has, with the know- 
 ledge of the landlord, laid out large sums upon the 
 land in buildings or oth^r substantial improvements, 
 that fact coupled with long continued enjoyment of the 
 property may justify the presumption of a permanent 
 grant, if the original conditions of the tenancv are 
 incapable of being ascertained.* If a tenant, hold- 
 ing under a temporary lease, of which the origin is 
 known or is easily provable, erects buildings on his 
 land it may be said, that he does it at his own risk. 
 
 ' Benode v Sondaminey, I. L. R. i6Cal. 252 and the cases therein 
 cited * Furzund v Aka, 3 C. L. R. 194. 
 
 » Addoyto v. P,-ter, 17 W. R. 383, sc, 13 B L. R. 417 (note) ; Mohur 
 V Ram, 21 W R. 400 ; Prosunno v. Sheikh Riitton, I. L. R. 3 Cal. 696 ; 
 'I.iriik V Shyania, SC L. R. 50; Prosunno v. Jagunnath, 10 C. I.. R. 
 25; Arnt V Prandhonc, I. L. R. lo Cal 502. 
 
 ♦ Prosunno t) Jagunnath, lO C. L. R. 2$ : Govinda »' Ayiniiddin, 11 
 C. L R. 281.
 
 FIXTURES 399 
 
 and as held in some cases, the tenant may not be entitled 
 to plead the landlord's acquiescence in a suit for eject 
 ment. A Court of Justice may also in such a case require 
 the landlord to pay compensation to the tenant before 
 granting a decree for ejectment, or may direct a removal 
 of the buildings. But if the origin of the tenancy is un- 
 known, and the exact terms are difficult to ascertain on 
 account of unavoidable loss of evidence, and the tenant's 
 occupation is not sufficiently long, the landlord should 
 have no other right than to obtain fair and equitable rent, 
 there being a presumption of the existence of a covenant 
 between the parties that there should be no ejectment 
 of the tenant, though the rent may be enhanced. 
 
 In the absence of any contract express or implied, a Subleases, 
 lessee holding non-agricultural land either for a term of 
 years, or year by year, may transfer by way of sub-lease 
 the whole or any part of his interest in the property. But 
 the sub-lessee can have no right higher than that of the 
 lessee, and is liable to be evicted on the determina- 
 tion of the lessee's interest, except in cases of surrender 
 by the lessee.^ 
 
 Instances of leases for building purposes granted by Leases by 
 Hindu widows are frequent in this country. Such a lease widows, 
 is good during the life-time of the widow; and in cases 
 of proved legal necessity, the after-taker may also be 
 bound by the conditions of the lease. But supposing the 
 after-taker, on the death of a Hindu widow, is not so 
 bound, a question has arisen as to the right of the lessee 
 to the buildings or substantial structures erected on 
 the land demised to him. Is he entitled to remove Fixtures, 
 materials of the buildings ? There can be no ques- 
 tion as to unsubstantial structures erected by a 
 tenant, — structures easily removable. Narada speak- 
 ing of the right of a tenant holding under a ter- 
 minable lease says— "If a man builds a hut on land 
 
 ' Aa IV of 1882, Sec. 108, cl. 0") and Sec. 115. Ante p. 241.
 
 400 NON-AGRICULTURAL LANDS. 
 
 belonging to another and pays rent for it, he should be 
 permitted to take with him the materials such as grass, 
 wood, and bricks when leaving the land/" But a res- 
 ervation was made by the sage, if the person in occupa- 
 tion by erecting structures was paying no rent for the 
 land; and in such a case he should not be permitted to 
 take away the materials, and on his leaving the land 
 they became the property of the land-owner.* Jagan- 
 natha,^ commenting on the above texts, would extend 
 the rule to all classes of tenants. It would seem from 
 the texts of Narada and the comments by Jagannatha^ 
 that if a tenant quitted his homestead-land, what- 
 ever his status was, after paying all that was due to the 
 land owner for rent, he was entitled to take away the 
 materials, but he was not entitled to do so, until he dis- 
 charged the landlord's dues. The materials of the tenant's 
 structures became the landowner's property, the price of 
 the same, on the tenant's abandonment, being set off 
 against unpaid rent. Thus according to the ancient 
 sages and the Hindu law as understood at the early period 
 of the British rule in India, the technical rule of English 
 law quidquid plantatur solo cedit was not applicable. The 
 Hidayah also says : — " If a J)ers^on hire unoccupied land 
 for the purpose of building or planting, it is incumbent 
 on the lessee to remove the buildings or trees, &C.'''* 
 
 1 ^■KM^\ -uA ?i^T ^fl ?T^T ^%ti g: i 
 
 M a^^ftrn fsfji^fT fSII^T^iTflF ^^^Ti^ || — Narada as 
 quoted in Parasaramadhava, Bibliothera huHca Parasarasmriti, Vol. 
 Ml, p. 236. .See also Vivada Ratnakara, p. 168. 
 
 Bibliotheca Indica, Parasarasmriti, Vol. III. p. 236. 
 ' Digest, Book 3, Ch. 2, p. 99 
 ' Hamilton'.s Hidayah, Vol. Ill, p. 325 (1st Edition).
 
 FIXTURES. 
 
 401 
 
 No distinction was made between substantial and un- 
 substantial structures. The question arose early, as to 
 the applicability in India of the English law as to fix- 
 tures, and the Sudder Dewani Adavvlut held that it did 
 not prevail in this country. The custom and usages of 
 the country and the law as laid down by the sages were 
 given effect to, even where the relationship of 
 landlord and tenant did not exist between the parties.' 
 In the matter of the petition of Thakoor Chimder inrttThakoor 
 Paramatiick and others^ the question raised was whether (thunder 
 
 Faramanick 
 
 an assignee trom a Hindu widow, whose title and others. 
 
 terminated with her death, was entitled to remove the 
 
 buildings erected by him during her life-time with her 
 
 consent. Sir Barnes Peacock, C. J., in delivering the 
 
 judgment of the Full Bench said : — " We think it clear 
 
 that according to the usages and customs of the country, 
 
 buildings and other improvements made on land, do not 
 
 by the mere accident of their attachment to the soil, 
 
 become the property of the owner of the soil, and we 
 
 think it should be laid down as a general rule that if he 
 
 who makes the improvement is not a mere trespasser, 
 
 but is in possession under any bona fide title or claim 
 
 of title, he is entitled either to remove the materials, 
 
 restoring the land to the state in which it was before 
 
 the improvement was m ide or to obtain compensation for 
 
 the value of the building, if it is allowed to remain for the 
 
 benefit of the owner of the soil —the option of taking the 
 
 building or allowing the removal of the materials, remain 
 
 ing with the owner of the land, in those cases in which 
 
 the building is not taken down by the builder, during 
 
 the continuance of any estate he may possess."^ 
 
 ' W. G. Nicose Pogose v. Niyamatula, S. D. A. (1851) 1517; 
 Jankee Singh v. Bukhooree, S. D. A. (1856) 761 ; Kalee Pershad v. 
 Gouree Pershad, 5 W. R. 108. 
 
 " B. L. R. (F.B.) 595, sc, 6 W. R. 228. Ante pp. 34-5. 
 
 " See also Shib v. Baman, 8. B. L. R. 237, sc, 15 W. R. 360 ; Russick 
 V. Lokenath, I. L. R. 5 Cal. 688 ; Juggut v. Dwarka, I. L. R. 8 Cal. 582. 
 Y(l)
 
 402 
 
 NON-AGRICULTURAL LANDS. 
 
 Materials of The inapplicability in India of the technical rule 
 
 huts as t.o fixtures is further illustrated by the practice in 
 
 all the large towns, where tenants are allowed to re- 
 move not only the materials of huts/ but substantial 
 structures and buildings, in the Presidency towns, as 
 you have seen, materials of huts erected on the lands held 
 by tenants are saleable' as movable property, and the 
 Small Cause Courts have jurisdiction to cause such 
 sales. Where there is an express contract as to substan- 
 tial structures erected by the tenant, the parties are 
 bound by it, but the general law in India does not impose 
 any disability on the tenant to remove, at or before the 
 termination of the tenancy,* the materials of buildings 
 erected by him. The Transfer (jf Property Art lays down 
 — "The lessee may remove, at any time during the con- 
 tinuance of the lease, all things uhirh he h.is attached to 
 the earth, provided he leaves the property in the stale in 
 which he received it."'* But doubts have been thrown 
 as to the justness of the rule and its applicability.* 
 Fisheries. The profits derivable from Kind covered with water 
 
 are from fish and plants and fruits which grow in it. 
 The right is incorporeal. No riglit of occupancy 
 can be acquired by a tenant from long occupation 
 of a fishery.'- If a lank used for the preserva 
 tion and rearing of fish forms a part of an agricul- 
 tural holdiii:;, it goes with the rest of ihe land. But 
 the incidents of tenancies in other tanks and fisheries are 
 the same as those ot immovable properties other than 
 agricultural It has, however, been held'' that long 
 
 ' Parbntty v. Woomatara, 14 B 1. K 201. See Mahalatchmi v. 
 Palani, 6 Mad. H. C. 245. 
 
 » Ante p. 35. 
 
 ' Aa IV of 1882, Sec. 108, cl. (/;) ' Aiitr pp. 35, 36. 
 
 ■'• Wooinakant t. Gopal, 2 W. R. ( Aa X ) i9;Siboo v. Gopal, 19 
 W. U, 200; Nidlii V. Ran), 20 \V. R. 341 ; Shani v. Court of Wards, 23 
 W. R 432; JiiggoDiindlioo 1'. I'toiiiotho, I. I,. R 4 Cai 767. 
 
 " Nidhce V Nisi.iriiiec, 21 W. R. 3H6, sc, 13 H. L R, 416.
 
 JIJLKARS. 4'''3 
 
 occupation of a tank on payment of uniform rent, coupled 
 with occasional transfers of the tenant-right not ob- 
 jected to by the landlord, may raise a presumption of 
 the fixity of the tenure, notwithstanding that no right 
 of occupancy can be acquired by the tenant by occupa- 
 tion for more than twelve years. The doctrine — optimus 
 interpres rerum usus — has been applied in these cases 
 as in other cases of lost or ambiguous grants. 
 
 The word julkar is occasionally used in the sense -^^^^^ j^^j 
 of land covered with water, as long as there is water on it dents. 
 and it is capable of being used for rearing and catching 
 fish ' A settlement of a julkar, however, does not 
 necessarily involve a right to the soil. Evidence of facts 
 and circumstances may, however, be given to show that 
 the settlement of a julkar includes the right to the soil 
 underneath the water, the word being used in a double 
 sense. 2 Road-cess and Public-works-cess are not levied 
 on julkar s.-^ The income derived \xovci julkars 'w\ the 
 mofussil are taxed under the Income-Tax Act. The 
 rent of a fishery is recoverable under the procedure laid 
 down in the Bengal Tenancy Act.* 
 
 The lease-hold right in a fishery may be de- Determina- 
 termined in the same way as other leases of non- ''°" °^ leases 
 
 1 1 1 1 1 1 • 1 1- °' fisheries. 
 
 agricultural lands, and the right of a tenant necessari- 
 ly ceases on the water drying up. Unless the lease 
 covers also the land on which the water lay, the land, 
 as soon as it ceases to be covered with water, comes 
 into the possession of its owner, discharged of any 
 right which the tenant might have to the fish and the 
 plants and fruits that grew in water." There are 
 
 ' Radha v. Neel, 24 W.R. 200 ; David v. Grish, I. L R 9 Cal 183. 
 
 * Rakhal v. Watson, I. L. R. 10 Cal. 50. 
 3 David V. Grish, I. L. R. 9 Cal. 183. 
 
 • Aa VIII of 1885, Sec. 193 ; Aa X of 1859 Sec. 23, cl. (4). 
 
 ^ Saroop V. Jardine, 2 Hay 468: Bi^sen v. Khyruunissa, i W. R 79; 
 Kalee v. Dwarka, i8 W. R. 460.
 
 404 NON-AGRICULTURAL LANDS. 
 
 numerous instances of land belonging to one person 
 and the right to fish to another.^ 
 Customary Pasturage, burning-grounds, burial-grounds and 
 
 "^ ^' places of public worship are, in the large majority 
 
 of cases in this country, public, in the sense that 
 they belong to or are capable of being used by a com- 
 munity or classes of individuals in a village. Such rights 
 are necessary for the preservation of society. In the 
 Permanent Settlement of 1 793, these public or customary 
 rights were not sufficiently protected, though their exis- 
 tence must be traced to a very early stage of civilization. 
 Customary rights belong to no individual in particular, 
 but may be enjoyed by any person who for the time being 
 inhabits the locality to which these rights are appurtenant, 
 or who belongs to the particular class entitled to their 
 benefit.- Any resident of the locality may assert the 
 right in a Court of law. In order to give validity to 
 these customary rights, all that is required is that the y 
 should be reasonable and certain.^ The proprietor of 
 an estate or the holder of a subordinate tenure under 
 him may claim to have proprietary right with respect 
 to the lands which are subject to such customary rights, 
 but the use is in the inhabitants of the locality or a 
 particular section of it. 
 Pasturelands. ^o an agricultural population, pasture-land is of 
 
 the utmost importance, and there is seldom a village 
 in Bengal which has not a large piece of land at- 
 tached to it for the grazing of cattle belonging to 
 its inhabitants. Manu speaks of such pasture-lands 
 
 ' Grey v. Anund, W. R. ( 1864) 108. 
 
 ' Goddard on Kasemcnts, ( 4th Ed.) p. 25. 
 
 ' Luchmiput v. Sadatulla, 12 C L R. 382; Broadbent v. Wilkes, 
 Willcs 360; Hilton v. Earl of Granville, 5 Q. B. 701,5c., 13 L. ). ( Q. B. ) 
 193 : Wakefield v. Duke of Buccleuch, L. R. 4 Eq. 613, sc, 36 L. J. 
 Ch. 763; lilftckctt V. Bradley, i B cSi S 940, sc, 31 L. J. (Q. B. ) 65 ; 
 Carlyon v. Levering i H .Si N 784, sc, 26 L. ]. Exch. 251 | Rogers v. 
 Taylor, i H ^ N. 706, xc, 26 \. }. Exrh 203.
 
 CUSTOMARY RIGHTS. 4O5 
 
 in chapter VIII, verse 237 — " On all sides of a 
 village or small town, let a space be left for pasture, in 
 breadth either four hundred cubits, or three casts of a 
 large stick ; and thrice that space round a city or con- 
 siderable town."^ Yajnavalkya also says -" There shall 
 be set aside in every village a piece of pasture-land, 
 the quantity of the land to be set aside being deter- 
 mined by the villagers themselves (where the land to 
 be set aside is of small area), or by the king (where a 
 large tract of land is intended to be set aside). A 
 Brahmin has the right to collect grass 'for his cows), 
 twigs (for homa) and flowers (for worship), wherever and 
 whenever he finds them."* The custom as to the use 
 by the community of such pasture-lands is also reason- 
 able, and there is nothing uncertain in it. Pasture-lands 
 in the occupation of particular individuals or families, 
 rent being paid for the same, have the same incidents 
 as other agricultural lands. ^ Suits for the recovery of 
 the rents of pasture-lands are cognizable by the same 
 tribunals as other ordinary rent-suits for agricultural 
 lands.* 
 
 There is also nothing unreasonable or uncer- Grounds for 
 tain in the custom of the members of a com- burning and 
 
 burying dead 
 munity in a village using, as of right, portions of land bodies. 
 
 in it, for burning or burying the dead. The Hindu 
 
 population urgently require burning places. The Ma- 
 
 homedan population require burial grounds. If these 
 
 particular classes have used certain pieces of land 
 
 ai*?fiqTr[T^^^Tfw fc^i'Tt 5T?n:^ g II 
 
 Manu, Chap. VIII., v. 237. 
 
 f?5T^^^:g^nf<!i ^i^'. ^^'^t %%<[ \\ 
 
 Yajnavalkya-Smriti, Vyavaharadhyaya, Sloka 166. 
 " Ante p. 404. 
 ^ Aft X of 1859, Sec. 23, cl. 4; A61 VIII of 1885, Sec. 193.
 
 406 NON-AGRICULTURAI. LANDS. 
 
 for a good number of years, for the purposes of 
 burning or burying the dead, they acquire rights in 
 them which ought not to be easily defeated. On the 
 abandonment of the use, the landlord may take posses- 
 sion of such lands. 
 Right to take Xhe right to take wood from a forest adjoining a 
 
 wood from . , . . . . • n • 
 
 jungles. Village IS also claimed in some localities, spe-cially in 
 
 the Non-regulation Provinces. But such a custom will 
 hardly find support from Courts of justice at the present 
 day. With the increase of population and demand 
 of wood, forest-lands would be denuded, and as held 
 in the case of Luchynipiit Singh v. Sadatulla Nusso^ 
 such a custom would be deemed uncertain and 
 unreasonable. If a forest is reserved, the taking of 
 wood without permission is punishable.'' 
 
 ' 12 C. L. R. 382, 
 '^ Ante p. 54-
 
 LECTURE XIII. 
 
 ORISSA AND THE SCHEDULED 
 DISTRICTS. 
 
 The peculiarities of the incidents of landed properties Necessity of 
 I i-cc i^ 1 li- f iU r r» • t different laws 
 
 m the different localities of the Lower Provinces of for different 
 
 Bengal, involving, as they do, peculiarities in their modes distrias. 
 
 of devolution and disposition, cannot make the same set 
 
 of rules of law, especially as to procedure, suitable to all 
 
 of them. This is due partly to the varieties in physical 
 
 features and partly to differences in the habits and customs 
 
 of the peoples and in their stages of civilization. The law 
 
 of landlord and tenant, suitable to the people inhabiting 
 
 the rich deltaic plains, cannot be suitable to the aboriginal 
 
 inhabitants of Santhalia or the Jungle Mahals, or to the 
 
 leaf-wearers of the |-Iill Tracts of Orissa. What are 
 
 good laws for the permanently settled area of the Lower 
 
 Provinces are not necessarily so for the khas mahals or 
 
 the temporarily settled districts. Strict adherence to the 
 
 laws of procedure conduces to the good government of 
 
 the major part of these vast provinces, while the rigidity 
 
 of those rules would be a source of unmitigated evil 
 
 in tracts inhabited by peoples who are yet in the lowest 
 
 stages of civilization. 
 
 It has thus happened that Act X of 1859 with its Rent Aas 
 amendments and Act VIII (B.C.) of 1869 are still re- ^-R^^'ent db-^ 
 tained in some parts of the country, notwithstanding trifts. 
 their repeal by Act VIII of 1885 in the major part of the 
 Bengal Provinces. Act X of 1859 and the amending Acts 
 VI (B.C.) of 1862, VIll ^B.C.) of 1865, and IV iB.C.) of 
 1867 and the portions of the Regulations of the Bengal
 
 ion 
 
 408 ORISSA AND THE SCHEDULED DISTRICTS. 
 
 Code repealed by the Bengal Tenancy Act' are still in 
 operation in the division of Orissa and in Manbhoom and 
 Jalpaiguri. Only certain parts of the Bengal Tenancy 
 Act have been extended to Orissa. Bengal Act VIII of 
 1869 remains unrepealed in Sylhet, which was once a 
 part of the Regulation Provinces and is now included 
 within the Chief Comniissionership of Assam. The other 
 Assam districts have their own special rules. ^ The 
 Chotanagpur division, at one time known as the Jungle 
 Mahals, has, excepting Manbhoom, " the Chotanagpur 
 Landlord and Tenant Procedure Act,"^ while Santhalia 
 has its own Regulations * The rest of the Scheduled 
 Districts^ in Bengal are of very little importance. 
 Orissa divis- The present Orissa division includes a large tract 
 
 of country, but except on the level plains on the sea- 
 shore the people are either still in a very rude state or 
 are just emerging from barbarism. At the date of the 
 grant of the Diwani in 1765 and until the year 1803, 
 Orissa included only the district of Midnapur and 
 a part of Hughli, — the tract of country between 
 the Suvarnarekha and the Rupnarayana. Orissa proper 
 was a part of the territory of the Bhonsla family 
 who had their capital at Nagpur in Central India. By 
 the treaty (^f Deogaum, signed on the 17th December 
 1803, the province of Cuttack including the port and 
 district of Balasore and all the territories west of the 
 river Warda and south of the Suvarnarekha were ceded 
 to the East India Company The tract consisting of 
 Balasore, Cuttack and Puri and the hilly country known 
 as the Tributary Mahals (Rajwara , held by the Chiefs 
 called k/iandaits, was Orissa proper, and has since 1804 
 been named Orissa, while Midnapur, now included within 
 
 ' Aa VIII. of 1885, Appendix, Schedule I. 
 ' Assam Land Revenue liej^ulation I of 1886. 
 •' Aa I. ( B.C. ) of 1879. 
 ' Regulations Hi. of 1872 and II. of 1886, 
 
 ' Darji-dinp, the Hill Traas of Chittagong and the Mahal of 
 Angul ( A61 XIV. of 1874.)
 
 TRIBUTARY MAHALS. 
 
 409 
 
 the Commissionership of Burdvvan, became a part of 
 Bengal proper. 
 
 Under the Maharattas, the khandaits used to pay Tributary 
 for their territories {killas) fixed quit-rent or tribute '"^'^3'5- 
 called tanki. Of these, the killadars in the inland and 
 hilly tracts continued to pay fixed tribute to the East 
 India Company as semi-independent chiefs, under the 
 Commissioner of the Orissa division. The territory of 
 Mayurbhunj is one of the killas which are now known 
 as the tributary mahals. In Hiirsee Mahapatro v. Dino- 
 bundo Patro,^ these tributary mahals of Orissa were held 
 to be within the limits of British India, but were exclud- 
 ed from the operation of all the laws in force in British 
 India not specially extended to them. The question 
 came before a Full Bench of the Calcutta High Court in 
 Empress v. Keshub Mohajan and others and Empress 
 V. Udit Prasad,'^ and the majority of the Judges held — 
 "The Maharattas probably exacted only tribute from these 
 estates, and the East India Company could under the 
 cession gain no higher rights," and that no direct civil 
 jurisdiction having ever been exercised in the territory 
 of Mayurbhunj \iy the Executive Government of India, 
 this territory was not within the limits of British India. 
 Prinsep and Mitter J. J., however, were of a different 
 opinion. For all practical purposes, however, the 
 tributary mahals, may, in the present course of lectures, 
 be considered as not included within British India.* 
 
 The killas nearer the level country became per- Moghulbundi 
 
 ' I. L. R. 7 Cal. 523, sc, 9 C. L. R. 93. 
 
 2 I. L. R. 8 Cal. 985, sc, II C. L. R. 241. 
 
 * Regulation XII of 1805 mentions in sections XXXVl and 
 XXXVIl, Neelgery, Bankey, Joormoo, Nirsingpore, Augole.Toalcherry, 
 Attghurh, Kunjur, Kindeapara, Neahgurh, Rampore, Hindole, Teegereah, 
 Burrumboh, Deckenaul and Mohurbunge. The jungle mahals are 
 not under the Regulation laws. Of these Bankey and Augole came 
 subsequently within direft British rule and Bankey is now a part of the 
 Regulation District of Pooree. These semi-independent tributary mahals 
 are also Pes-Kash vaik^dXs.^Hunter's Statistical Reporter, Orissa. 
 
 Z (l)
 
 4IO ORISSA AND THE SCHEDULED DISTRICTS. 
 
 manently settled estates and are governed by the sime 
 rules^ as permanently settled estates in other districts. 
 Regulation XII of 1805, which incorporated the 
 Proclamation relative to the settlement of land-revenue 
 in the Moghul-bundi^ territory of Cuttack, and which 
 was published on the I3t-li September 1804 by the Board 
 of Commissioners, legalized the previous settlement of 
 the province. The rules laid down in this Regulation 
 and Regulation VII of 1822 have been the bases of all 
 the subsequent settlements. 
 Regulation Sections 4 to 7 of Regulation XII of 1805 
 
 XII of 1805. dealt with the remainder of the province, which was not 
 permanently settled. A series of ten short temporary 
 settlements followed, the last of which expired in 1837. 
 In 1838, tliirty ) ears' settlement was concluded under 
 the provisions of Regulation VII of 1822, and that 
 settlement expiring in 1867 was renewed without any 
 alteration, on account of the famine, which had impoverish- 
 ed the province in 1865, for a further prriixl of thirty 
 years and is, therefore, now in force.' The proceedings 
 for the settlement that will take effect from the year 
 1897 are now in progress. 
 Rent Aas in ^^) '^'^^ Government notilication of the loth Sep- 
 
 forcf ill tember 1891, chapter X and sections 3 to 5, 19 
 
 Orissa. , 1 r ,1 n 1 
 
 to 26, 41 to 49, 53 to 75 and 191 ot the Bengal 
 
 ' List of estates of which the jumma was declared to be fixed in 
 perpetuity: Sees. XXXIII, XXXIV and XXXV of Reg. XII of 1805, 
 (l) Durpum, (2) Sookindah, (3) Muddoopore, (4) Jaigir of Malood (5) 
 Aull, (6) Cojsng, 17) Puttra, (8) Humishpore, (9) Miritchpore (10) 
 Bishenpore, and (iii Kuiika Fhe estate Kluirda became a khas mahal 
 in 1804, having been forfeited for rebellion. I'liese estates are alto- 
 gether fifty in number. 
 
 * Orissa was conquered by the Moyhuis about the year 1580, and 
 from that time the long strip of riiltivated land which lies between the 
 western mountain tracts and the sea-board marshes and from which 
 the conquerors derived their revenue, became known as the Moghul- 
 hundi. 
 
 ^ Aa X of 1867.
 
 ORISSA. '-*4II 
 
 Tenancy Act have been extended to Orissa, and by 
 the notification of the 27th June 1892, sections 
 27 to 38 and section 80 of the Act, have also 
 been extended. In other respects, the provisions of 
 Act X of 1859 and its amending Acts are in force in 
 the province and regulate the relationship of landlord 
 and tenant. The powers of Settlement-officers are 
 regulated by the Bengal Tenancy Act, the Govern- 
 ment dealing with the raiyats of the temporarily 
 setth^d estates as a proprietor is entitled to do under 
 the Bengal Tenancy Act. The holders of the estates 
 are entitled to re-settlement under the provisions of 
 Regulation VII of 1792. 
 
 Leaving out of our consideration the military fiefs Classification 
 or the tributary estates, which had evidently been of 'anf^ed in- 
 
 tercsts in 
 
 granted like Mayurbliunj, Neelgiri and Keunyjhar for Orissa. 
 the protection of the level country from the inroads and 
 ravages of the aboriginal tribes who dwelt further in 
 the interior, the level country which is the more valu- 
 able portion of the Orissa division — Balasore, Cuttack, 
 and Puri, may be called the Crown-Land, being directly 
 under British administration. As in Bengal proper the 
 holders of land may be broadly classified into-~(i) 
 zemindars paying revenue direct to Government ; (2) 
 intermediate tenure-holders paying revenue through the 
 zemindars; (3) holders of resumed revenue-free tenures; 
 (4) tenure-holders paying quit-rent, and (5) the last and 
 the most important — the raiyats. 
 
 1 do not propose to tire you with the various names, Zemindaries. 
 according to the various shades of difference, in origin 
 and status, of the estates paying revenue direct to 
 Government. These names are numerous and should 
 find a place in a glossary. The differences in 
 meaning are not always easy to catch. Sreechandan 
 ( mild as white sandalwood ), harichandan | sweet as 
 yellow sandal wood), sudhakar \ receptacle of nectar), 
 with the numerous other names given by the Gajapati
 
 413 ORISSA AND THE SCHEDULED DISTRICTS. 
 
 kings and names derived from kamingoes and chow- 
 dhuries have attractions for the lower orders of people 
 in these provinces, but to a student of law they must 
 be very dry. 
 Patna and The patua and the kharija estates being held by 
 
 tates. bhuiyas or ovvners of the land deserve particular men- 
 
 tion, in as much as they are instances of the recognition, 
 by the older governments of the country, of the proprietor- 
 ship of the soil being vested in the actual occupiers. The 
 word bhuiya itself implies property in the soil as 
 distinguished from mere right to collect rent. 
 Mukuddami The names of the intermediate tenures are almost as 
 
 numerous as those of the estates, but only two of these 
 deserve particular mention — mukuddami and sarbarkari 
 tenures. The jntikuddams have no proprietary right in 
 the lands composing their villages, but they have the 
 entire management and control of them including waste 
 lands. The zemindar only receives a lixed percentage, 
 though the revenue is paid through him. The tenure is 
 hereditary, and the miikuddam can alienate it or any 
 portion of it at will. Babu Rangalal Banerji, who 
 was a Deputy-Collector in these provinces and who 
 is better known to many of you as a Bengali poet, 
 remarks — "They had formerly powers for the apprehen- 
 sion of offenders, the settlement of village lands, and 
 the management of village expenses. They were the 
 heads of villages, the zemindar receiving rent through 
 their intervention." At the settlement of Orissa in 
 1804, they were considered to be intermediate tenure- 
 holders. 
 .Sarbarakari The surbarakari tenures have their origin in the 
 
 village accountants. From being managers of revenue 
 affairs, remunerated by a percentage on the collections 
 from the raiyats, they are now recognised as subordinate 
 tenure-holders, either hereditary or non-hereditary. It 
 has been held that the sarbarakari tenure is a recog- 
 nised under-tenure in Cuttack, that the sarbarakar 
 
 tenures.
 
 ORISSA. 413 
 
 has almost the same sort of right as the niukuddam^ that 
 in a case of the existence of several joint sarbarakars^ 
 the Collector has the power to select one or more of the 
 body to be the recorded manager of the sarbarakari, 
 and that ordinarily the tenure is not heritable or divisible. 
 Neither hereditary nor non hereditary sarbarakars had 
 any pov^'er of alienation or right to partition without the 
 consent of the zemindar, and both classes of tenures 
 are liable to cancelment or resumption by the zemin- 
 dar on their falling into arrears. Sarbarakari ^z.x\^(^?, are 
 almost exactly the same in their terms and conditions 
 as those creating the mukuddatni tenures. Temporary 
 sarbarakars, however, have now disappeared. Some 
 of the maurusi sarbarakars are still recognised. 
 
 At the time of the settlement of this province, Nankars and 
 considerable portions of land were claimed as lakhiraj, 3^'^"^^- 
 but were resumed under the Resumption Regulations, 
 and assessed with revenue. Nankars and jaigirs were 
 very numerous, but they were almost all resumed and 
 assessed at half rates. Most of them pay revenue 
 through the zemindars. Only the holders of more than 
 seventy-five bighas of lakhiraj resumed lands were raised 
 to the rank of zemindars. 
 
 Quit-rent tenures consist of ayma and /^W/^/ estates. Ayma and 
 Ayma lands are those granted by the Moghul gov *^" 1 es a es. 
 ernors to learned or pious Musalmans, for religious 
 or charitable uses in connection with Mahomedanism, 
 subject, as in Bengal proper, to the payment of small 
 quit-rent. The British Government has recogni.<ed 
 these ayma grants as hereditary and transferable. Tanki 
 land is held at quit-rent, being one of the perquisites 
 attached to the office of siidder kaniingo during the 
 Moghul period. There are various other kinds of 
 similar quit-rent-tenures which do not deserve par- 
 ticular mention. 
 
 The raiyats of the Cuttack provinces were divided into Thani raiyats. 
 two classes —the thani or resident, and the pahi or non-
 
 4H ORISSA AND THE SCHEDULED DISTRICTS. 
 
 resident. Tlie fixed cultivator has lived in the village 
 and cultivated its lands from time immemorial. His 
 homestead land is rent-free, and he pays at customary 
 rates rent for the rest of his holding. Occasionally he has 
 to pay for his homestead land, but the rate of rent is very 
 low. He has i rij;ht-of-occupancy, but it is not transfer- 
 able. The rent though levied according to well- 
 established rates is, however, higher than that paid by 
 /a^/or migratory husbandmen. He has a home of his own 
 where his ancestors dwelt for ages ; he sits under the shade 
 of the trees which they planted ; he has a local habitation 
 and a name, and a degree of credit which pahi cultivators 
 do not possess. But this strong love of home enabled 
 the superior holders to exact higher rents from the 
 thani or resident cultivators besides abwabs and extra- 
 collections. During the settlement of 1835, many of 
 these thani raiyats obtained palm-leave leases {talpot- 
 tahs) at lower rates, and these talpottahs gave them 
 a position of importance which the pressure of in- 
 creasing population has since enhanced. 
 Pahi raiyats The /'rt/z/ raiyat who was free to. pick and choose and 
 
 to abandon the land whenever he liked, having neither 
 the privileges nor the burdens of the ///czw/ raiyat, used to 
 hold his arable lands at a sensibly lower rate of rent. 
 He had no position in the village. He was not sub- 
 jected to the payment of abivabs, as the superior holders 
 were afraid that such impositions would lead them to 
 go over to other villages. 
 Q\^^^j^\^ There is a third class of raiyats who live in the 
 
 raiyats. villages but do not cultivate rice-lands like the thani 
 
 raiyats, nor have they any other lands besides the liome- 
 steads on which rent could be assessed. The industrial 
 population, arti.sans and tradesmen belonging to the 
 lower castes have only homestead lands, for which they 
 pay rent. They are known as chadnia raiyats. but 
 their number is not considerable. Act X of 1859 had 
 nothing to do with chadnia raiyats, but the Act gave
 
 CHOTANAGPUR DIVISION. 
 
 415 
 
 the pahi or husbandmen, who were mere tenants at 
 will, the status of occupancy-raiyats. 
 
 The zemindars of the Chotanagpur division go by the Chotanagpur- 
 names of rajas, tekaets, thahirs &c., and their law ^'■'"^"g*'''- 
 of succession, as in some other ancient zemindar families 
 
 in the Regulation districts, is the law of principalities 
 
 primogeniture. The Government recognized in Regula- 
 tion X of 1800 their impartibiiity and the exceptional 
 rule of succession to the eldest son only. The other sons 
 of the last proprietor are entitled to maintenance only, 
 for which grants of land are generally made by the eldest 
 son after the succession to him opens out.' These grants 
 are known as khorposh or babuaiia. Thus, the laws relat- 
 ing to partition of estates and separation of shares have 
 practically no application in this division. It has also been 
 held that the kiilachar or rule of succession is generally 
 lineal, females being excluded, and until an elder line is 
 exhausted, none in the next line is entitled to succeed, 
 notwithstanding proximity of sapinda-relationship and 
 superiority in age.^ Such a rule of succession is not in 
 conformity with either the old patriarchal system which 
 made the eldest male member of a family its chief or head, 
 or tiie text of Mann. — " To the nearest sapinda the 
 inheritance belongs,"* which is the basis of Hindu law in 
 all the schools. The question has not, however, been final- 
 ly decided by the Privy Council, and the custom must be 
 proved in the case of each family by cogent evidence. 
 
 ' Maharani v. Benee, 4 S. D. A. 79; Bihu z;. Maharaja, 6 S. D. A. 
 140; 6 S. p. A. 282; Anund v. Gurrood, 5 M, I. A. 82: Thakoor 
 Jeetnath zi. Lokenath, 19 W. R. 239; Woodoyaditlo z». M ukoond, 22 
 W. R. 225 ; Uddoy Adittya v. Jadub, I. L. R. 5 Cal. 113 and I. L. R. 
 8 Cal. 199 
 
 « Periag v. Madhu, A. O. D. Nos. 84 and 97 of 1887, decided 25th 
 June 1889. 
 
 Manu, Ch. IX, V. 187.
 
 4l6 ORISSA AND THE SCHEDULED DISTRICTS. 
 
 Encumbered Notwithstanding the impartibility of these estates, 
 
 Estates Aft. most of them are highly encumbered, and were it not 
 for the very beneficial intervention of the Government 
 under the Chotanagpur Encumbered Estates Act — VI 
 iB.C.) of 1876, many of them would, by this time, have 
 been swallowed up by money-lenders. The applica- 
 tion of the Act to any estate deprives the proprietor 
 of his power of management and of disposing of his 
 estate and the Civil Courts also lose their power to 
 pass decrees for debts and realise them by execution. 
 The Act has been extended to the Deo Estate in the 
 District of Gya (IX of 1886.) 
 Under- The impartibility of these estates is no bar to an 
 
 tenures. alienation by a holder, if such alienation be other- 
 
 wise valid. The holders may also create subordinate 
 tenures such as putn's and mukurraris^ and the next- 
 taker has no right to question their validity on the 
 ground of impartibility. In Aniind Lai Si7ig Deo v. 
 Dheeraj Gurrood Narayan Deo^ the Privy Council 
 left the question open, but in Uddoy Adittya Deb v. 
 Jaduh Lai Deb ^ the validity of alienations either 
 by way of sales or leases has been expressly recog- 
 nized. As a necessary corollary, limitation which bars 
 a holder of an estate will also bar the next-taker. 
 Maintenance There is an important class of tenures in the Chota- 
 
 grants. nagpur division — the maintenance (khorposh) tenures. 
 
 Grants of land made for the maintenance of the junior 
 members of a zemindar-family governed by the law of 
 primogeniture are generally rent-free, but occasionally 
 quit-rents are payable. Their incidents are various, de- 
 pending upon the custom and ut^age of each family and 
 the terms of the written grants. But it seems that no 
 grant is valid, if the grantor encroaches on the power 
 of the next-taker by making one not authorized by 
 
 ' 5 M. 1. A. 82. 
 
 • I. L. R. 5. Cal. 113; afTirmed by the Privy Council in 1. L. R. 
 8 Cal. 199.
 
 CHOTANAGPUR DIVISION, 
 
 417 
 
 family custom or usage. A grant may be a simple as- 
 signment of rent revokable at the will of the grantor. 
 In other cases, it may be valid during the life-time of 
 the grantor, being resumable by the next-taker of the 
 parent estate. A grant in perpetuity for the main- 
 tenance of the grantee and his heirs has been held in 
 the Pachete Estate to be invalid.^ Again a grant for 
 maintenance may enure to the benefit of the grantee 
 only,^ being resumable on his death. In some families, 
 grants have been held to be good as regards the grantees 
 and their heirs male, and the khorposh tenures do not 
 revert to and merge in the parent estates as long as there 
 are male heirs of the grantees. 
 
 In the districts comprising Chotanagpur divis- Aa i (BC) 
 ion,^ with the exception of Manbhoom and the Trib- °^ '^79- 
 utary Mahals, the Rent-Law in force is Bengal Act 
 I of 1879 — the Chotanagpur Landlord and Tenant 
 Procedure Act. This is a Procedure Act, the modifica- 
 tions in the portion dealing with substantive law 
 being very slight. The law as to landlord and tenant 
 as laid down in Act X of 1859 has been practi- 
 cally retained, except as to certain peculiar kinds 
 of tenure-holders. Section 19 of the Act deals with 
 bhuifihari and khiidkati tenures, and lays down that 
 no tenant of such lands shall be liable to the en- 
 hancement of rent previously paid by him for such lands, 
 unless it be shewn that the tenure has been created 
 within twenty years before the institution of the suit to 
 enhance the rent of such lands. The section further pro- 
 vides that where the enhancement of rent of such tenures 
 is decreed, the rent assessed shall not exceed one-half 
 of the rent paid by an ordinary raiyat with a right 
 of occupancy on the same class of land with similar 
 advantages. 
 
 ' Anund v. Dheeraj Gurrood, 5 M. I. A. 82. 
 
 '^ Rajah Woodoyaditto v. Mukoond, 22 W, R. 225. 
 
 » Lohardagga, Palamau, Hazaribag, Singbhoom. 
 
 A (2)
 
 41 8 ORISSA AND THE SCHEDULED DISTRICTS. 
 
 Bhuinhars. The bhuiukars are an important class of tenure- 
 
 holders in these districts, and they are supposed to 
 be the descendants of those who originally settled 
 and were the first tillers of the soil in the villages. 
 The mundas of Chotanagpur claim to be the origi 
 nal settlers, but as a matter of fact we scarcely 
 find any munda or bhidnhar in this district. The truth 
 seems to be that the bhuinhars are the descend- 
 ants of men who were in the villages when Hindu 
 authority was first asserted. The Hindu landlords put 
 down the influence of the mundas, if they had any at 
 that time, and extorted services from the settled inhabi- 
 tants. These services were originally feudal, such as 
 attendance at marriages, following the chiefs in war &c. ; 
 but gradually half rent was imposed. For causes well 
 known in the history of civilization, the bhuinhars be- 
 came gradually reduced in number. The Hindu Rajas of 
 the Nag-family, who claimed to be the descendants of the 
 Solar-kshetriyas, and their friends and relations gradual- 
 ly absorbed the bhiiinhari lands. Shortly before 
 1869, Christian missionaries, specially the Lutherans, 
 were making converts of the Non-Hindu tribes. The 
 Christian bhuinhars learned of secular things more 
 than the sacerdotal, and waking from a long sleep of 
 apathy and submission, they took forcible possession 
 of large quantities of land, to which they had not the re- 
 motest title. Riots followed, and the Chotanagpur 
 Aft II (B.C.) Tenures Act II (B.C.) of 1869 was passed for the settle- 
 °^ '^^- ment of the district. Sir William Hunter in his Statis- 
 
 tical Accounts of the Lohardagga district thus sums 
 up the characteristic provisions of the Chotanagpur 
 Tenures Act : — " Bhuinhari, as defined in the Act, in- 
 cludes the four cognate privileged tenures known as 
 bhutkheta, dalikatari, pahni and inahtoai ; while manjhas 
 or manjhihas includes bhutkhcta. The jurisdiction of 
 the regular courts is barred : and Special Commissioners 
 are appointed to demarcate and register the tenures
 
 MANBHOOM. 419 
 
 which come under the Act, subject to appeal to the 
 Commissioner of the Division. Pleaders (vakils) and law 
 agents {niukhtars) are not allowed to be heard without 
 special permission. The term of limitation is fixed at 
 twenty years, and the service conditions of the bhiiin- 
 hari tenures are allowed to be commuted for a money 
 payment. At the same time, no date is fixed within 
 which such claims to hold land on a privileged tenure 
 must be put in. In consequence of this omission, and 
 the impossibility of commencing the work of demarca- 
 tion in all parts of the District at once, it is feared, that 
 when some of the more remote perganahs are visited by 
 the Special Commissioners, serious difficulties may arise." 
 The Bhuinhari Act, instead of improving the condi- 
 tion of the bhuinhari population, had the effect of 
 eliminating them. Section 19 of the Act of 1879 placed 
 the bhuinharsm a securer position on favourable terms. 
 Section 20 of the Act of 1879 provides that no tenant 
 of lands known as korkor, baibala, khandwat, saj'hwat, 
 jahasan and ariat, shall be liable to any enhancement 
 of rent except under the terms of written contracts, or in 
 accordance with the general custom prevailing with 
 respect to such lands in the village in which they are 
 situated. 
 
 There is an important class of tenures in the Chota- Service ten- 
 nagpur Division — jaigirs and chaJierans. The holders "''®^- 
 render services of various kinds to the rajas and the 
 village communities and pay either no rent or nominal 
 rent. Considering the altered state of things under the 
 British Government, commutation of service into rent is 
 very necessary. 
 
 The Tributary estates^ in this division have their Tributary 
 chiefs as the Tributary mahals in Orissa, and the laws '"^*^*'^- 
 in force in British India have no application to them. 
 
 Manbhoom, one of the districts included within the Manbhoom 
 Chotanagpur division, and Jalpaiguri are within the per- ^"^.J^'P^'- 
 
 ' Bonai, Jaspur, Udoypur, Kharsoa, Charbabar, Korea, Ganghen.
 
 42a ORISSA AND THE SCHEDULED DISTRICTS. 
 
 manently settled area of the Bengal Provinces and are to 
 a considerable extent inhabited and cultivated by people 
 who have migrated from the adjoining settled districts. 
 There are, however, masses of non-aryan population, who 
 have not yet fully adopted the habits, customs and lan- 
 guages of their aryan neighbours. There are Mundas, 
 Uraos, Coles and Santhals in Manbhoom and Koches and 
 other non-aryan tribes in Jalpaiguri. The Privy Council 
 has declared them to be non-aryan and non-Hindu.^ 
 Act X of 1859 is in force in these districts. 
 Jalsasan The raiyati tenures peculiar to Manbhoom are the 
 
 tenures. jalsasan and the noabad. The physical features of 
 
 this part of the country have enhanced the value and 
 utility of tanks (band/is). Large pieces of land are 
 granted for the excavation of tanks, on the condition 
 that water should be allowed to be used for purposes 
 of drinking and irrigation of the neighbouring lands 
 of other raiyats, and the grantees should have the right 
 of holding the lands by the sides of tanks either 
 at small quit-rents or variable rents, portions of the lands 
 being held rent-free, and permanent remissions being 
 allowed as remuneration for labour and expenditure in- 
 curred by the tenants. 
 Noabad Noabad grants are made for the clearance of jungles 
 
 tenures. and for cultivation, generally six annas-share of the 
 
 lands being allowed to be held rent-free, the remainder 
 being assessable at progressive rates and liable to en- 
 hancement under the provisions of Act X of 1859. 
 These dixe jnngleburi holdings. 
 
 Tenures in The Raja or Raikut of Baikunthpur and the Maharaja 
 
 Jalpaiguri. q\ w^^. Kuch Behar State own large parts of Jalpaiguri as 
 zemindars. The Government itself is the zemindar in 
 the Western Doars. The tenure-holders directly under 
 the zemindars are known as jot-dars. These jotes are 
 generally permanent and are transferable by custom. 
 
 ' Fanindra v. Rajeswar, I. L. R. 1 1 Cal. 463, sc, L. R. 12 I. A. 72.
 
 JALPAIGURI. 421 
 
 The ^vst jot-dars were appaiently occupiers of the soil, 
 cultivators and peasant proprietors, as the word j'ote im- 
 plies. But in course of time, subletting became common. 
 Usufructuary mortgages of the j'ofes are frequent. On 
 failure of heirs and on abandonment, iht j'oles revert to 
 the parent estates. 
 
 Chukanidars or niulanidars are an important class of Raiyati holJ- 
 subordinate-holders in Jalpaiguri. They are temporary '"2^' 
 lessees or under raiyats under the zemindars or jot-dars. 
 They hold for terms of years, and their rights are 
 not transferable by custom. The dar-chiikanidars or 
 darmulanidars are sub-lessees with still inferior 
 rights. The raiyats (prajasi hold from year to year 
 only. 
 
 The trial of Rent cases under Act X of 1859 is in jurisdiftion 
 
 the hands of the executive officers of the Crown, the ° . ?'„'!!, °;! 
 
 and Lommis- 
 
 Collectors, and Deputy Collectors, with the right of sioner. 
 appeal to the District Judges and Collectors, and in 
 some cases second appeal to the High Court. In 
 suits of the value of over Rs. 5000, an appeal lies 
 directly to the High Court. In some instances, the 
 Collectors and Commissioners of Revenue have powers 
 of revision. In the Regulation Districts of Bengal 
 proper and Behar, this was found inconvenient, and 
 within ten years of the passing of Act X of 1859, the 
 jurisdiction in rent suits was taken away from the 
 executive officers and was given to the regular civil 
 courts. But the conflict of jurisdiction, which was 
 pre-eminently a source of litigation, still exists in these 
 districts. The people, however, are simple and litiga- 
 tions are few. 
 
 In suits for ihe enhancement of rent of raiyats, the Enhancement 
 main peculiarity, as you have seen, is the necessity of of rent, 
 the previous service of notice.* No suit for enhancement 
 of rent can succeed under Act X of 1859, unlt^ss a notice 
 
 ' Ante p. 373.
 
 4a» ORISSA AND THE SCHEDULED DISTRICTS. 
 
 in proper form has been previously served on the raiyat 
 through the proper channel. 
 Measure- The sections of Act II (B.C.^ of 1862 about meas- 
 
 ""^"^' urement through the Collectors were replaced in Act 
 
 VIII (B.C.) of 1869 by sections 37 and 38. They 
 are vi'ith slight modification incorporated in sections 
 go, 91, and 92 of the Bengal Tenancy Act. Act II 
 (B.C.) of 1862 with its imperfect provisions as to 
 record-of-rights has been retained in these pro 
 vinces. I have already dealt wiih these and the 
 other provisions of the Act of 1859 and 1869 and the 
 Acts modifying them. 
 Santhal Per- It seems that the provisions of Act X of 1859 were 
 
 ^ originally applied in tht^ Santhal Perganahs in questions 
 
 between landlord and tenant. Regulation III of 1872 
 (Santhal Perganahs Settlement Regulation) and Regula- 
 tion 11 of 1886 (Santhal Perganahs Rent Regulation) 
 made Act X of 1859 inapplicable. The manjhis or 
 village headmen were selected as farmers of the villages, 
 specially in the Dafnanikoh, and thus mostajir and 
 w««y/// have become convertible terms. Regulation 111 
 of 1872 laid down rules as to record-of-rights and 
 the adjustment of rents by Settlement-officers. The 
 District officers are vested with the power of deciding 
 disputes as to record-of-rights. An appeal lies in some 
 instances to the Deputy Commissioner and in others to 
 the Commissioner of the Bhagulpore division. The 
 proceedings are generally simple in their character, 
 litigations being conlined to the permanently-settled 
 estates outside the Danianikoh. The right-of-occupancy 
 of the raiyats is much of the same nature as in the Reg- 
 ulation districts, the power of re-settling rents by the 
 Settlement olficcrs being widi r, — agricultural skill and 
 habits of life of tenants being taken into consideration. 
 A raiyat may acquire an occupancy-right not only by 
 occupation for more than 12 years, but he may have an 
 equitable claim to occupancy under section 18 of Regu-
 
 SANTHAL PERGANAHS. 
 
 lation III of 1872. Exchanges of land between raiyats do 
 not affect the acquisition of the right. A raiyat, whether 
 possessing a right-of-occupancy or not, cannot be 
 ejected from his holding otherwise than in execution of 
 an order of the Deputy Commissioner,^ 
 
 ' Reg II of 1886, Sec. 25. 
 
 4*3
 
 GENERAL INDEX, 
 
 :-o-;- 
 
 ABANDONMENT— 
 
 penalties for, in ancient India, 13. 
 
 occupancy raiyat transferring hold- 
 ing against custom to be consi- 
 dered as having abandoned it, 
 
 299, 339, 340- 
 
 may amount to surrender when, 307. 
 
 on abandonment of the use of 
 burning and burial grounds land- 
 lord may take possession of them, 
 406. 
 
 See Act VIII of 1885 Sec. 87 ; 
 Forfeiture ; Notice ; Limitation. 
 
 ABATEMENT— 
 
 of revenue on acquisition of land, 
 
 procedure if proprietor declines to 
 
 accept, on land-acquisition, 125. 
 of rent for diluvion does not affect 
 
 presumption of uniformity of 
 
 rent, 178, 179. 
 when putnidar entitled to, 184. 
 not allowed if person without title 
 
 dispossess tenant, 295, 296. 
 of rent of occupancy raiyat for fall 
 
 in prices, 361, 362. 
 for deterioration of land, 365. 
 of rent for diluvion, 295, 369. 
 contract against right of, in valid, 369. 
 of rent for acquisition of land for 
 
 public purpose, 369. 
 suits for reduction of rent, 374. 
 
 See Alteration of rent. 
 
 ABWAB— 
 
 See Illegal Cess. 
 
 ACCRETIONS— 
 
 alluvial accretions to an estate, 50- 
 when Govt, has right to assess such 
 
 lands with additional revenue, 50. 
 held Khas only when proprietor 
 
 declines settlement, 50. 
 but even then proprietor is entitled 
 
 to malikana, 50. 
 
 A (3) 
 
 ACCRETIONS— (ro«//;/«^r/) 
 
 accreted lands numbered as separate 
 
 estates, 51. 
 cause of alteration of rent, 293, 
 
 366—368. 
 
 See Alteration of rent ; 
 
 Act IX of 1847 ; Act XXXI 
 of 1858. 
 
 ACTS— (Bengal Council) 
 
 III of 1862 (to amend Act XI 
 of 1859), p. 161. 
 
 VI of 1862 (to amend Act X 
 
 of 1859), pp. 284, 422. 
 s. 9, PP- 370, 373. 
 „ 10, pp. 372, 378. 
 
 n II, p. 369- 
 
 VII of 1862 (Jurisdiction in 
 Resumption Suits), p. 7. 
 
 VIII of 1862 (Zamindari 
 Dawks), p. 82. 
 Preamble, p. 96. 
 
 s. 4, p. 97- 
 „ 9i P- 97- 
 „ 12, p. 97. 
 VIII of 1865 (Sale of tenures 
 for arrears of rent), pp. 144, 
 201, 284, 407. 
 
 s. 3, pp. 145, 149- 
 „ 4, pp. 196, 197. 
 
 „ 5, P- 196. 
 „ 13, p. 152. 
 „ 16, pp. 198, 305. 
 „ 162, p. 196. 
 
 IV of 1867 ( to amend Act VI of 
 
 1862), p. 407. 
 X of 1867 (Settlement of land re- 
 venue in Kuttack &c.), p. 
 410. 
 VII of 1868 (Recovery of arrears 
 of revenue), pp. 40, 54i I<^2, 
 256. 
 s. I, p. 108. 
 „ 2, p. 108. 
 
 „ 3, p. 106. 
 „ 7. p. 107.
 
 426 
 
 GENERAL INDEX. 
 
 ACTS— (Bengal Council)— 
 
 VII of 1 868 {Continued) 
 „ 8, pp. 109, 1 10. 
 
 „ 12, pp. 79- 84, 137, 161, 388. 
 • „ 14, pp. 304, 345- 
 II of 1869 (Tenures in Chutia 
 Nagpur), p. 418. 
 
 VIII of 1869 (Landlord and 
 Tenant), pp. 76, 159, 190, 193, 
 195, 284, 2S5, 322, 377, 407. 
 
 s. 3, P 287, 289. 
 
 „ 4, PP- 287. 
 
 „ 6, pp. 297, 308, 316, 319, 
 
 323, 325, 326, 329, 330. 
 
 „ 9, P- 375- 
 
 „ 10, p. 375- 
 
 ,. 14- P- 373- 
 
 „ 15, P-48. 
 
 „ 17, p. 166. 
 
 „ 18, p. 293, 353, 367. 
 
 „ 19, pp. 293, 369. 
 
 „ 20, p. 307. 
 
 „ 21, p. 333- 
 
 „ 22, p. 302. 
 
 „ 23, p. 302. 
 
 „ 25, p. 371. 
 
 „ 26, pp. 159, 188, 190, 203, 
 
 296, 341- 
 
 „ 37, pp. 371, 373, 422. 
 
 „ 38, pp. 372, 378, 422 
 
 „ 41, p. 369- 
 
 „ 44, p. 335- 
 
 „ 45, p. 335- 
 
 „ 52, pp. 180,235, 237, 303, 
 
 346- 
 
 „ 57, p. 195- 
 
 „ 59, pp. 196, 197. 
 
 „ 60, p. 196. 
 
 „ 62, p. 201. 
 
 „ 64, p. 202. 
 
 „ 66, pp. 198, 305. 
 
 „ 106, p. 138. 
 Sch. D, p. 138. 
 
 VI of 1870 (Village Chaukidars), 
 p. 256. 
 
 s. 35, P- 256. 
 
 „ 48, p. 256. 
 
 „ 50, P- 256. 
 
 „ 58, p. 257. 
 
 „ 60, p. 257. 
 
 „ 61, p. 257. 
 I of 187 1 (Village Chaukidars), 
 p. 256. 
 
 s. I, p. 257. 
 X of 1871 (Road Cess), p. 97, 
 
 V of 1875 (Survi-y .\ct). 
 s. 42, p. 378. 
 
 VI of 1876 (.\graiian Disputes), 
 
 pp. 381, 416. 
 
 ACTS— (Bengal Council)— 
 
 \'II of 1876 (Land Registration), 
 pp. 112,114, 146- 
 s. 4, p. 80. 
 „ 8, p. 113. 
 „ 9. P- 80. 
 „ 17, p. 81 
 „ 38, pp- 81, 113. 
 „ 42, pp. 81, 113. 
 
 „ 78, pp. 113, 336. 
 VIII of 1876 (Partition of 
 estates), pp. 118, 119, 203. 
 s. 4, p. 82. 
 „ 10, p. 116. 
 „ II, p. 116. 
 
 „ 12, p. 115- 
 
 „ 13, p. 116. 
 
 „ 26, p. 117. 
 
 „ 29, pp. 115, 117. 
 
 „ 33, p. 120. 
 
 „ 35, p. 120. 
 
 „ J6, p. 120. 
 
 „ loi, p. 115- 
 „ 105, p. ii5- 
 Part IX, p. 120. 
 s. 125, p. 120. 
 „ 132, p. 120. 
 
 II of 1S77 (Public Works Cess), 
 
 p. 97. 
 
 III of 1878 (Settlement Act), 
 
 p. 47. 
 I of 1879 (Chutia Nagpur Land- 
 lord and Tenant), pp. 408, 
 417. 
 
 s. 19, p. 419. 
 
 „ 20, p 419. 
 
 VIII of 1879 (Settlement Offi- 
 cer's Powers), pp. 47, 49- 
 52. 
 
 s. 9, p. 47. 
 „ 10, p. 47- 
 ,,15, p. 47. 
 
 IX of 1879 (Court of Wards), 
 
 p. 122. 
 s. 5, p. 123. 
 „ 18, p. 212. 
 „ 23 cL I, p. 122. 
 „ 23 cl. 2, p. 122. 
 „ 23 A, p. 122. 
 „ 24, p. 123. 
 „ 25, p. 123. . 
 
 VI of 1880 (Bengal Drainage 
 
 Act). 
 s. 42, pp. 332, 363. 
 ,, 43, p. 363. 
 
 VII of 1880 (Pulilic Demands 
 Recovery), pji. 4°, 5^, 57, 
 98. 
 
 s. 5, p. 56.
 
 GENE RAL INDEX. 
 
 427 
 
 ACTS— (Bengal Council)— 
 VII of 1880. [Continued). 
 
 „ 7, p. 56. 
 „ 10, pp. 56, 108. 
 „ II, p. 56. 
 „ 18, p. 56. 
 n 19. P-56. 
 IX of 1880 (Cess Act), p. 97. 
 s. 3, p. 82. 
 „ 14 to 29, p. 98. 
 „ 41, pp. 82, 98, 162. 
 „ 42 cl. I, pp. 82,99. 
 
 .. 47, P- 163. 
 Ill of 1 88 1 (Court of Wards 
 Amending Act), p. 122. 
 s. 4, p. 122. 
 I of 1895 (Certificate Procedure), 
 p. 57- 
 
 ACTS— (India Council). 
 
 VIII of 1835 f Jurisdiction in sum- 
 mary sales for rent), p. 144. 
 
 XVII of 1835 (To regulate the 
 silver and gold coinage), p 96. 
 
 XIII of 1836 (P^or the withdraw- 
 al of the Calcutta Sicca Rupee 
 and the Benares and Furruc- 
 kabad Pice from circulation), 
 p. 291. 
 
 XII of 1 841 (Sales of land for 
 arrears of revenue), p. loi. 
 
 I of 1845 ^Sales of land for arrears 
 of revenue), p. loi. 
 s. 9, pp. loi, 102. 
 
 IX of 1847 (Assessment of alluvial 
 
 lands), p. 50, 51. 
 s. 7, p. 50. 
 I of 1850 (For confirming the title 
 
 to lands in Calcutta), p. 55. 
 XXIII of 1850 (For securing the 
 land revenue of Calcutta), 
 P- 32. 
 s. 2, p. 33. 
 ., 6, p. 33. 
 
 n 7, P- 33- 
 
 » 12, p. 33. 
 XXV of 1850 (Forfeiture of de- 
 posits on incomplete sales 
 under Reg. VIII of 1819 and 
 Act IV of 1S46), p. 144. 
 
 s. I, p. 151. 
 
 „ 2, p. 151. 
 VI of 1853 (Relating to summary 
 suits for arrears of rent, to 
 sales of Putnee Taluqs, and 
 other saleable tenures, and to 
 sales of land for summary de- 
 crees for rent), p. 144. 
 s. r, p. 149. 
 
 I ACTS— (India Council)— 
 VI of 1853. {Condnued) 
 
 >. 9i P- 149- 
 
 XXXVII of 185s (To remove 
 from the operation of the 
 general Laws and Regulations 
 certain districts inhabited by 
 Sonthals), p. 43. 
 
 XVIII of 1856 (Relating to the 
 administration of public re- 
 venues in Calcutta), p. 32. 
 
 VI of 1857 (Land Acquisition Act), 
 pp. 55, 204. 
 
 X of 1857 (Act to amend Act 
 XXXVIIoflSss), p.43. 
 
 XXXI of 1858 (Settlement of 
 land gained by alluvion), 
 
 p.5i- 
 
 XL of 1858 (For making better 
 provision for the care of per- 
 sons and property of minors), 
 p. 212. 
 s. 18, p. 212 
 
 y of 1859 (To empower Ghatwals 
 of Beerbhoom to grant leases 
 beyond the period of their 
 possession), p. 264. 
 s. I, p. 263. 
 
 VIII of 1859 (Code of Civil Pro- 
 cedure) — 
 s. 260, p. III. 
 
 X of 1859 (Rent law of Bengal) — 
 
 pp. 144, 159, 174, 175, 178, 
 186, 190, 193, 195, 201, 236, 
 279,283—285,407, 411,414, 
 420 — 422. 
 
 s. 3, PP- 287, 289. 
 
 „ 4, pp. 289, 292, 
 
 „ 5, P- 302. 
 
 „ 6, pp. 297, 307, 308, 315, 
 316, 319, 323, 325—327, 
 329, 330. 
 
 „ 7, P- 326. 
 
 ,, 8, pp. 347, 375. 377- 
 
 „ 9, PP« 302, 375, 377, 
 
 „ 13, pp. 240, 348, 373. 
 
 „ 15, PP- 137, 139, 165, 176, 
 206. 
 
 „ 16, p. 139- 
 
 ,. 17, pp. 293, 353, 354, 358, 
 363, 367, 368. 
 
 „ 18, pp.293, 361, 365, 367,369. 
 
 „ 20, p. 333. 
 
 „ 21, p. 302. 
 
 „ 23, pp. 403, 406. 
 
 „ 27, pp. 159, 188, 190 203, 
 296. 
 
 „ 28, pp. 76, 78. 
 
 „ 78, pp. 303, 331, 346.
 
 438 
 
 GENERAL INDEX. 
 
 ACTS— (India Council)— 
 
 XI of 1859 (Sale for arrears of 
 revenue), pp. 40, 54, loi, 
 102, 104. 
 s. 2, p, 100. 
 „ 3, p. 105- 
 „ 4, p. 293. 
 
 „ 5, p. io8- 
 
 „ 6, pp. 105, 106, 109, no. 
 
 „ 7, PP- 107, III- 
 
 „ 8, p. 106. 
 
 „ 9, pp. 102, 128. 
 
 „ 14, P- 115- 
 „ 15, p. 106. 
 „ 16, p. 139- 
 „ 17, pp. 122, 123. 
 „ 18, p. 105. 
 „ 26, pp. 106, 108. 
 „ 28, p. no. 
 „ 30, p. III. 
 „ 31, p. HI- 
 n 33, p. 109. 
 „ 36, p. III. 
 
 „ 37, pp. 77, 79, 84, 137, 161, 
 162, 165, 16S, 287, 304, 
 
 345, 388- 
 „ 39, p. 161. 
 „ 41, p. i6i. 
 „ 42, p. 161. 
 „ 53, pp. in, ns, 162. 
 „ 54, p. 162. 
 „ 55, p. 256. 
 .. 58, pp. 49, 79, 
 Sch. A, p. 1 10. 
 XIV of 1859 (Limitation). 
 
 S.I cl. (14) p. 78 
 XXII of i860 (To remove cer- 
 tain tracts of Chittagong from 
 the jurisdiction of ordinary 
 tribunals"), p. 42. 
 XLVof i86oClndiaii Penal Code). 
 
 s. 154, p. 124- 
 XVI of 1864 (Registration Act), 
 
 p. 208. 
 I of 1868 (General Clauses Act), 
 
 p. 36. 
 VII of 1870 (Court Fees Act), 
 
 PP- 54, 55. 
 X 1870 (Land Acquisition) — 
 
 s. 59, pp. 124, 125. 
 IX of 1 87 1 (Limitation) — 
 
 Sch. 11, Art. 130, p. 78. 
 „ „ Art. 132, p. 127. 
 I of 1872 (Evidence Act) — 
 
 s. 35, P- "3- 
 
 „ 74, PP- 45, "3. 
 
 „ 91, p. 208. 
 
 „ "4, p. 175- 
 „ "6, p. 333, 
 
 ACTS— ((India Council)— 
 
 IX of 1872 (Contract Act*, p. 34, 
 35, 207, 385. 
 s. 69, pp. 127, 224. 
 „ 70, p. 127. 
 „ 226, p. 2n 
 XII of 1873 (Repealing Act), p. 
 96. 131. 
 
 XIV of 1874 (Scheduled 
 Districts Act) p. 48, 
 49, 408. 
 
 XV of 1874 (Laws Local Extent) 
 p. 96, 
 
 IX of 1875 (Majority Act)— 
 
 s. 3, p. 122. 
 I of 1877 (Specific relief), 
 
 p. 210. 
 Ill of 1877 (Registration Act) — 
 s. 3, p. 210. 
 „ 18, p. 208. 
 „ 48, p. 208. 
 XV of 1877 (Limitation Act) — 
 Sch. II Art. 12, p. 152. 
 
 „ Art. 12 cl. (c.) p. 109. 
 „ Art. 120, p. 112. 
 
 Art. 121, pp. 84, 162, 
 201. 
 „ Art. 130, p. 127. 
 Art. 139, p. 233. 
 VII of 1878 (Forests), p. 54. 
 I of 1879 (Stamp Act)— 
 
 Sch. I, Art. 4, 210. 
 IV of 1882 (Transfer of Pro- 
 perty), pp. 190, 209, 240, 
 386. 
 Preamble p. 387. 
 
 2, p. 
 
 7, P- 
 II, p. 
 15, P 
 
 387- 
 210. 
 
 183. 
 
 397- 
 
 „ 36, P- 224. 
 ., 50, P- 224- 
 „ 54, P- 300. 
 „ 72, p. 128. 
 „ 73, pp. 'II 
 „ 93, P- 158. 
 Chap. V, pp. 
 s. 
 
 128. 
 
 173, 207- 
 
 217, 
 
 387, 
 
 105, pp. 219, 390. 
 
 106, pp. 239, 391- 
 
 107, pp. 188, 208, 
 
 108, pp. 187, 216, 
 225, 227, 344, 
 392, 397, 399, 402. 
 
 109, pp. 224, 225. 
 no, J). 227. 
 
 in, pp. 182, 228, 329, 
 
 233, 238. 
 112, pp. 182, 234, 
 Ii3,p. 238. 
 
 222,- 
 390,- 
 
 230,
 
 GENERAL INDEX. 
 
 439 
 
 ACTS— (India Council)— 
 IV of 1882, (jContviued) 
 s. 114, pp. 181, 235, 236. 
 
 » 115, P- 399- 
 „ 116, p. 238. 
 „ 117, p. 344. 
 X of 1882 (Criminal Procedure) 
 s. 45, p. 124. 
 
 XIV of 1882 (Civil Procedure) 
 
 pp. 196, 198, 202. 
 s. II, p. 389. 
 ,. 265, p. 115. 
 „ 290, p. 197. 
 „ 317, P- III. 
 ,- 392, p. 355- 
 „ 396, p. 115. 
 n 474, P- 339- 
 „ 622, p. 129. 
 
 XV of 1882 (Presidency Small 
 Cause Courts). 
 
 s. 28, p. 36. 
 
 Chap. VII, p. 37. 
 
 „ VIII, p. 37. 
 
 VIII of 1885 ([bengal Tenancy 
 
 Act), pp. I, 47, 51, 76, 77, 
 
 138, 166, 167, 172, 174, 
 
 176, 179, 198, 200, 202, 
 
 207, 231, 236, 237, 240, 
 
 284, 286, 293, 322, 360, 
 
 407. 
 s. 1, p. 48. 
 
 ,> 3, pp. 32, 78, 81, 139, 163, 
 
 172, 186, 216, 291, 324, 
 
 372, 410. 
 „ 4, pp. 286, 288, 343, 410, 
 ,, 5,pp.286, 287, 306, 311, 410. 
 Chap. Ill, p. 206. 
 s. 6, pp. 133, 136, 140, 141. 
 ,, 7, pp. 166, 167. 
 „ 8, p. 167. 
 „ 9, P- 167. 
 
 „ 10, pp. 164, 181, 231, 233 
 „ II, pp. 183, 187, 
 ,. 12, pp. 159, 160, 188, 192, 
 
 296. 
 ,, 13, pp. I59> 160, 188, 193, 
 
 296. 
 „ 14. PP- 159, 160, 188, 296. 
 „ 15, pp. 160, 188, 192, 296, 
 
 336, 337. 
 „ 16, pp. 160, 188, 193,296,336, 
 
 337. 
 „ 18, pp. 233, 287, 290. 
 „ 19, PP- 308, 318, 410. 
 „ 20, pp. 298, 310, 326, 328- 
 
 330, 410. 
 „ 21, pp. 308, 309, 326, 328, 
 
 410. 
 „ 22, pp. 222,243,313,342,410. 
 
 ACTS— (India Council) — 
 VIII of 1885, {Continued) 
 „ 23, pp. 300, 302, 339, 410. 
 „ 24, pp. 302, 410. 
 „ 25, pp. 231, 233, 304, 328, 
 
 345, 410. 
 „ 26, pp. 298, 410. 
 „ 27, pp. 48, 302. 
 „ 27 to 38, p. 411- 
 „ 29, p. 332. 
 
 „ 30, PP- 354,356.357,358, 363- 
 „ 31, PP- 355. 356. 
 „ 32, I.p. 358, 361. 
 „ 33, PP- 358, 365. 
 „ 34, PP- 358, 363, 365- 
 „ 36, P- 374- 
 „ 37, P- 374- 
 „ 38, PP- 354, 361, 365-366. 
 
 „ 40, P- 374- 
 
 „ 41 to 49, p. 410. 
 
 „ 42, P- 347- 
 
 „ 44, PP- 343, 345, 346- 
 
 „ 45, PP- 238, 343, 346, 347- 
 
 „ 46, p. 382. 
 
 „ 47, P- 346- 
 
 Chap. VII, pp. 306, 309, 345. 
 s. 49, p. 238. 
 
 „ 50, PP- 139, 165, 179, 287, 
 290, 292. 
 
 „ 51, P- 333- 
 
 „ 52, pp. 139, 140, 179, 293, 
 
 367. 369- 
 „ 53, PP- 333, 334, 335- 
 ,, 53 '•o 75, P- 410. 
 „ 54, P- 334- 
 „ 60, pp. 336, 371- 
 „ 65, pp. 172, 181, 236, 303. 
 „ 66, pp. 236, 237, 345. 
 „ 67, p. 335. 
 „ 68, p. 335. 
 „ 72, p. 224. 
 
 „ 73, PP- 300, 341- 
 Chap IX., p. 301. 
 
 „ 80, p. 411- 
 
 „ 86, p. 307, 339 
 
 „ 87, pp. 307, 310, 329, 339. 
 
 „ 88, pp. 165, 193, 203, 292. 
 
 „ 89, p. 181. 
 
 „ 90, p. 371, 422. 
 
 „ 91, PP- 371, 373, 422. 
 
 „ 92, PP- 370, 422. 
 
 „ 93 to 96 p. 129. 
 
 „ 99, P- 129. 
 
 Chap. X, pp. 48, 51, 377, 379, 
 
 380, 381, 382, 410. 
 „ 102, pp. 378, 380. 
 „ 103, p. 378. 
 „ 104, p. 380. 
 „ 105, p. 380.
 
 430 
 
 GENERAL INDEX. 
 
 ACTS— (India Council)— 
 \'ni of \?>?,S,{Coi:/uiued). 
 ,, io6, p. 380. 
 „ 107. pp. 380, 393, 397. 
 „ 108, pp. 380, 381. 
 „ 109, p. 380. 
 „ no, p. 381, 
 „ 112, p. 381. 
 „ ir6, pp. 319, 323, 330. 
 ,, 117 to 120, p. 321. 
 „ 120, pp. 323, 324. 
 " 121, p. 339. 
 n H9, p.338- 
 M 154, pp. 141, 374- 
 „ 155, pp. 181, 182, 235, 304. 
 11 156, p. 304. 
 " 158, pp. 376, 377. 
 ., 159. pp. 304, 305. 
 „ 160, pp. 157, 199, 2S8, 304 
 
 ^ 305, 345, 388. 
 ,, loi, p. 199. 
 „ 163, pp. 197, 199. 
 „ 164, pp. 199, 200. 
 n 165, p. 200, 
 „ 167. p. 200. 
 
 n 171, pp. 128, 201. 
 
 ,, 172, p. 201. 
 
 ,. 176, p. 199. 
 
 „ 178, pp. 180, 299—302, 306, 
 
 307, 328, 330, 334. 344— 
 
 346, 369- 
 ,. 179, pp. 180, 369. 
 „ 180, pp. 298, 318, 325. 
 „ 181, p. 273- 
 „ 182, pp. 316, 317,384- 
 .. 183, pp. 309, 343 
 „ 188, pp. 194, 202, 372. 
 ,. 189, p. 52. 
 ,. 191, pp. 139, 291, 410. 
 „ 193, PP- 318, 403, 405- 
 „ 195, PP- 40, 48, 144, 159- 
 Sch. I, pp. 140, 488. 
 Sch. Ill, pp. 1 82, 234, 288,304, 
 
 329- 
 II of i8S6(rncoineT:ix),pp.99,403. 
 
 I.X of 1887 (.Moffiisil .small cause 
 
 Court). 
 
 Sch. ii, cl. 8, p. 36. 
 XII of 1887 
 
 s. 37, cl, 2, |). 207. 
 VI II of 1890 (Guardian and 
 Ward), p. 122. 
 
 s. 29, p. 212. 
 I of 1894 (Land Acquisiiion), pp. 
 55, 124. 
 
 s- 55, p. 125. 
 
 ADVERSE POSSESSION — 
 
 acquisition of right by, in ancient 
 India, 18, 19. 
 
 ADVERSE POSSESSION— 
 
 {^Continued) 
 
 period necessary to create title by, 
 19, 20, 21. 
 
 different periods after which adverse 
 possession ripened into owner- 
 ship ; Asmartakala, 20 ; time im- 
 memorial, 21 ; thirty years, 23 ; 
 twenty years 21. 
 
 Raghunandan's reconciliation of 
 te.xts giving different periods for 
 acquisition of title b}', 21. 
 
 tenant encroaching on landlord's land 
 cannot set up, 221, 222, 293-295 
 See Encroacfiment ; Limitation. 
 
 ALIENATION— 
 
 land amongst Aryans not at first 
 
 alienable, 21. 
 right of alienation was afterwards 
 
 slowly and partially recognized, 
 
 21, 22. 
 Jimuta\ahana fully recognised it, 22. 
 in Mahomedan time cultivator had 
 
 right to alienate his land, 24. 
 covenants in permanent tenures 
 
 restricting, 183. 
 
 ALTERATION OF RENT— 
 
 on alteration of area, 139, 140, 179, 
 
 in such a case presumption of uni- 
 
 formit}' of rent unaffected, 179. 
 of permanent tenures, 183, 184. 
 of raiyats on alteration of area, 
 292, 296, 366—369. 
 increase by accretion, 293, 
 366—368. 
 increase by encroachment on 
 landlord's land, 293, 294. 
 increase by encroachment 
 
 on stranger's land, 295. 
 decrease by diluvion, 295, 
 
 368. 
 decrease by disjiossession 
 muler a title paramount, 
 295, 368. 
 decrease by dispossession 
 by person without title, 
 295, 296, 368. 
 See Enhancement of rent. 
 
 APPEAL— 
 
 groiMids for setting aside levenue 
 sale by civil suit must be taken 
 in ap])eal to Commissioner, 
 109. 
 
 if there is illegality or no arrears 
 appeal to Commissioner not neces- 
 sary, loy.
 
 GENERAL INDEX. 
 
 431 
 
 APPE fK\-— Continued. 
 
 against order of District Judge ap- 
 pointing common manager does 
 not lie, 129. 
 
 but High Court has power of 
 Revision, 129. 
 See Limitation. 
 
 APPORTIONMENT— 
 
 Zamindar not bound to apportion 
 rent on partition of taluqs, 165. 
 
 of rent on partition does not affect 
 uniformity of rent, 178. 
 
 of compensation between proprietor 
 and tenure-holder on land acquisi- 
 tion, 203, 204. 
 
 of compensation in case of acquisi- 
 tion of Ghatwali land, 270. 
 
 ARYANS— 
 
 were essentially agriculturists, 4, 11. 
 
 subletting originally unknown 
 amongst, 11. 
 
 but afterwards became common, 12. 
 
 intermediate tenures unknown in 
 earlier days amongst, but are of 
 later creation, 12. 
 
 cultivation of land insisted on, 12. 
 Vyasa, 12. 
 Narada, 13. 
 Yajnavalkya, 13. 
 
 village communities 13 — 18. 
 For details see under this heading. 
 
 acquisition of right by adverse pos- 
 session amongst, 18, 19. 
 
 estoppel by conduct under ancient 
 Hindoo law, 19. 
 
 period necessary amongst, in ancient 
 times to create title by adverse 
 possession, 20, 21. 
 
 extinguishment of right b}' limita- 
 tion amongst, 21, 
 
 land was at first not alienable but 
 heritable, 21. 
 
 right of alienation was afterwards 
 slowly and partially recognized 
 21, 22. 
 
 Jimutavahana fully recognized it, 22. 
 
 sources of revenue in ancient India 
 amongst, 383, 384. 
 
 right to minerals, 395. 
 
 ASSAM— 
 
 the whole forms a scheduled district 
 and statute 33. Vic. Cap. 3 
 applies to it, 49. 
 
 a part of the country is permanent- 
 ly settled, 49. 
 
 rest Government property, 49. 
 
 ASSAM- Continued. 
 Settlement Regulations of the Bengal 
 Code supplemented by rules 
 framed by Government are in 
 force in, 49. 
 
 ASSESSMENT OF RENT— 
 
 on resuineil lakheraj land under the 
 Settlement Regulations binding 
 unless set aside, 46. 
 
 raiyat however not bound unless they 
 
 assent or the law as to enhance- 
 ment of rent complied with, 46. 
 
 principles of, under the Settlement 
 Regulations, 46, 47. 
 
 principles of, in the case of island 
 Churs and accreted land, 50, 
 See Settlement Regulations. 
 
 ASSESSMENTOF REVENUE— 
 
 made on principles laid down in 
 Reg. VII of 1822 and the Regu- 
 lations and Acts modifying it, 50. 
 
 accreted lands formed into separate 
 estates, 50. 
 
 Reg. VIII of 1793 contains prin- 
 ciples of settlement and mode of 
 assessment, 93, 94. 
 
 rules of, laid down in Reg. VIII 
 were the basis of Permanent Set- 
 tlement and continued in force 
 till 1822, 95. 
 
 ASSIGNEE— 
 
 of recorded proprietor not entitled 
 to draw surplus proceeds of 
 revenue sale, iii, 112. 
 
 ATTACHMENT— 
 
 Collector ma}' attach for arrears of 
 revenue in what cases, 122. 
 
 estates under, or management by 
 Revenue Officer e.xempt from sale 
 for arrears of revenue, 123, 
 
 Sec. 17 of Act XI of 1859, 123. 
 
 but the issue of certificate of attach- 
 ment is not attachment by Col- 
 lector, 123. 
 
 AUCTION-PURCHASER— 
 
 Sale certificate to be conclusive in 
 favor of, 110. 
 
 title of, at a sale for arrears of reve- 
 nue of a permanently-settled 
 estate dates from when, no. 
 
 liable for instalments that have fallen 
 due since the default of kist on 
 which sale has taken place, ill.
 
 432 
 
 GENERAL INDEX. 
 
 AUCTION-PURCHASER— 
 
 Continued. 
 at putni sale to pay purchase-money 
 
 when, 151. 
 at putni sale entitled to avoid in- 
 cumbrances, 154-156. 
 must avoid within 12 years, 155. 
 registration of name of, at putni sale, 
 
 59, 160. 
 right of, to avoid incumbrances, 
 200. 
 
 See Incumbrances ; Putni-Sale ; 
 Limitation ; Sale for Arrears of 
 Revenue. 
 
 BADSHAHI GRANTS— 
 
 what are, 69, 70. 
 
 burden of proof of the genuineness 
 
 and validity of, 70. 
 effect, in the absence of any grants, 
 
 of uninterrupted possession exempt 
 
 from assessment, 70. 
 Regulation XXXVII of 1793, 
 
 71- 
 
 See Non-Badshahi grants. 
 
 BASTU LAND— 
 
 See Homestead. 
 
 BENAMI. 
 
 provision against benami purchase 
 
 in sales for arrears of revenue. III. 
 purchase at revenue-sale by defaulter 
 
 does not avoid incumbrances, 162. 
 landlord holding land in the, of 
 
 another person cannot acquire 
 
 occupancy right, 312. 
 
 BHAGDARI RAIYATS— 
 
 ma)- ac(|uireoccupanc3' right, 310,311. 
 
 BHAOLI RAIYAT— 
 
 See Bhagdari raiyat. 
 
 BOARD OF REVENUE— 
 
 to determine dates for payment of 
 
 arrears of revenue, 105. 
 revisional power of, regarding 
 
 partition of estates, 120. 
 is the Court of Wards, 123. 
 
 BREACH OF COVENANT— 
 
 See Hjectment ; 
 
 Forfeiture ; 
 
 Limitation. 
 BUILDING— 
 See Ejectment. 
 
 BUILDING LEASE— 
 
 See Homestead. 
 
 BURDEN OF PROOF— 
 
 as to the genuineness and validity of 
 
 Badshahi grants, 70. 
 in suits in which question is whether 
 
 land is mal or lakhiraj, 83-86. 
 finding should be based upon weight 
 
 of evidence, 86. 
 in suits for enhancement of rent of 
 
 dependent taluqs, 135. 
 is on taluqdar regarding nature of 
 
 tenure its permanency and fixity 
 
 of rent, 138. 
 on Zamindar regarding due publica- 
 tion of sale notices under Reg. 
 
 VIII and due observance of for- 
 malities, 148. 
 regarding avoidance of incumbrance 
 
 by purcharser at putni sale, 156. 
 on tenant to prove custom of trans- 
 
 ferribility of occupancy right, 300. 
 on landlord to prove that land is 
 
 proprietor's piivate land, 323. 
 when raiyat pleads that rent is due 
 
 to another person, 337. 
 in cases of enhancement for improve- 
 ment, 363, 364 _ 
 in cases of reduction for deteriora- 
 tion, 365, 366 
 
 BURNING AND BURIAL 
 GROUNDS— 
 
 the members of the community have 
 
 customary right to use, 404, 405 
 but the landlord may take posses- 
 sion on abandonment of the use of, 406. 
 See Sales for Arrears of Revenue. 
 „ „ „ of Rent. 
 
 CALCUTTA- 
 IS a khas mahal, 32. 
 was originally the purchased taluk of 
 
 the East India Company, 32. 
 its revenue system, 33. 
 there are many revenue-free tenures 
 
 in, 33- 
 rate of assessment, 33. 
 no proprietary right of Govt, in the 
 
 revenue-paying estates in Calcutta, 
 
 33. 
 Sutanuty, 
 
 incidents of tenancy in, 34. 
 
 law of landlord and tenant in, 
 
 34-37- 
 jurisdiction of the Presidency Small 
 Cause Court, in suits between 
 landlord and tenant in, 36, 37.
 
 GENERAL INDEX. 
 
 433 
 
 CALCUTTA— Co>ui/iue</. 
 
 the several Tenancy Acts have no 
 application in the part within 
 the Original Jurisdiction of 
 H. C, 34- 
 
 but the Contract Act and the Trans- 
 fer of Property Act regulate the 
 incidents of tenancy in, 34. 
 
 law applicable in the absence of 
 contract and of any provision in 
 the Contract or the Transfer of 
 Property Acts, 34, 35. 
 
 huts, 36. 
 
 CERTIFICATE PROCEDURE 
 
 See Public Demands Recovery Act. 
 
 CESS— 
 
 Road Cess payable by Govt, for khas 
 
 mahals, 56. 
 but not Public Works Cess, 56, 
 result of extension of the Cess Act 
 
 to lakhirajdars, 57. 
 payable for revenue-free lands, 82. 
 but Dawk Cess not payable, 82. 
 Dawk Cess when imposed, 96. 
 
 payable by Zamindars, 96. 
 how and when payable, 96, 
 
 97. 
 but not recoverable from 
 
 tenants, 97. 
 realizable by Certificate 
 
 Procedure, 97. 
 is an additional impost on 
 the revenue, 97. 
 old Cess Acts, 97. 
 the Cess Act of 1880, 97, 98. 
 tenants bound to pay Road and Pub- 
 lic W'orks Cesses, 98. 
 is a personal debt of proprie- 
 tor, 98. 
 recoverable by Certificate Procedure, 
 
 98. 
 how assessed, 98. 
 
 the share to be paid by each class 
 interested in land, 98, 99, 162, 163. 
 how and when payable, 99. 
 sale for arrears of, where no arrears, 
 
 105 note, 
 payable by taluqdars, 162, 163. 
 unless there is contract to the con- 
 trary, 163. 
 recoverable in the same way as rent 
 but is no charge and has not the 
 same effect on incumbrances, 163. 
 
 CHAKRAN LANDS- 
 
 See Service tenure. 
 
 A (4) 
 
 CHOWKIDARI CHAKRAN 
 LANDS— 
 
 See Service tenures ; 
 Act VI (B. C.) of 1870 ; 
 Act I (B.C.) of 1871. 
 
 CHARGE- 
 
 Govt. revenue is a first charge on 
 land, 99. 
 
 unpaid arrears a first charge on sale 
 proceeds of estate sold for any 
 cause while under management 
 of the Court of Wards, 122. 
 
 co-sharer paying Govt, revenue has 
 no charge, 127, 128. 
 
 under the Bengal Tenancy Act co- 
 sharer paying rent has, 128. 
 
 under-tenure-holder paying arrears 
 to save putni from sale entitled to 
 a charge, 153. 
 
 rent a first charge, 171, 172. 
 
 CHITAS— 
 
 evidentiary value of, prepared by 
 Settlement Officers, 45, 46. 
 
 CHITTAGONG— 
 
 cultivated portions of, when acquir- 
 ed, 37- 
 afterwards permanently settled, 37, 
 noabad lands and taluqs in, 41. 
 
 absolute right of Government 
 to, 41. 
 
 surveyed between 1841 and 
 1848, whether held by squ- 
 atters or tarafdars, 41, 42. 
 
 estates formed in 1793 were 
 defined and separated and 
 noabad lands were made 
 separate taluqs, 42. 
 
 also large numbers held khas. 
 42. 
 
 noabad taluqdars are tenure 
 holders holding under terms 
 of their leases, 42. 
 
 settlement in 1848 was for 
 fifty years of lands fully 
 cultivated and for 25 years 
 for other lands, 42. 
 
 generally cultivated by hired 
 labor, 42. 
 
 where there are raiyats 
 settlement does not affect 
 their rights, 42. 
 
 contains large numbers of 
 estates, taluqs and holdings 
 under jungleburi grants, 
 42.
 
 434 
 
 GENERAL INDEX. 
 
 CWTTAGOt^G—ContniufJ. 
 
 great complications in consequence, 
 
 42. 
 tarafdars, 
 
 generally hold khas, 42. 
 where there are raiyats resump- 
 tion and settlement do not 
 affect their right, 42. 
 Hill tracts of, 
 
 removed from the operation of 
 the general Regulation and 
 Acts by Act XXII of i860 
 and IV (B.C.) of 1863, 42. 
 large part reserved forest, 42. 
 a portion settled permanently 
 but a large part is khas 
 mahal, 42,43. 
 
 CHOTANAGPUR— 
 
 there are Govt, estates in, 43. 
 
 Palamow subdivision is khas mahal 
 temporarily settled, 43. 
 
 Govt, claims absolute proprietary 
 right, 43. 
 
 lands never sold for arrears of reve- 
 nue, 43. 
 
 all sales and mortgages require sanc- 
 tion of Commissioner, 43, 44. 
 
 primogeniture in, 415- 
 
 Encumbered Estates Act, 416. 
 
 under-tenures, 416. 
 
 maintenance grants, 416, 417. 
 
 Act I (B.C.) of 1879, 417. 
 
 bhuinhars, 418, 419. 
 
 Service tenures, 419. 
 
 tributary mahals, 419. 
 
 Manbhoom, 419, 420. 
 
 Jalsasan tenures, 420. 
 
 Noabad tenures, 420. 
 
 CH up- 
 right of occupancy in, 298, 325, 326. 
 island churs the property of Govt., 50. 
 some temporarily settled, 50. 
 
 S^e Khas mahals ; 
 
 Occupancy right. 
 
 CIVIL COURT— 
 
 jurisdiction of, in resumption cases, 
 76. 
 
 if no arrear revenue sale may be set 
 aside by, 105. 
 
 its jurisdiction to set aside revenue 
 sale is of an e.\tremcly limited 
 character, 109. 
 
 where objection is made in proceed- 
 ings for separation of account of 
 revenue parties to go to the, 
 114. 
 
 CIVIL COURT— Co>i/i>!,u,/. 
 
 can only pass decree for partition 
 after ascertainment of share, 115. 
 
 jurisdiction of, when partition is 
 claimed by Hindu widow, 116. 
 
 may decree partition when leve- 
 nue is below the prescribed limit 
 though apportionment of revenue 
 will not be binding on Collector, 
 116. 
 
 jurisdiction of, in matters relating to 
 partition, 1 17. 
 
 conflict of cases about jurisdiction, 
 117, 118. 
 
 no jurisdiction of, regarding registra- 
 tion under Act XT, 161. 
 
 COLLECTOR— 
 
 may exempt estate from revenue 
 sale, when, 105. 
 
 may open separate account of reve- 
 nue where no objection, 1 14. 
 
 actual partition of estates to be made 
 
 private partition not binding on 
 Govt, unless special sanction of 
 Collector is obtained, 115. 
 
 cannot disturb private partition at 
 the instance of one of the parties, 
 
 115- 
 in what cases of private partition 
 
 Collector's jurisdiction is ousted 
 
 and when not, 115, 116. 
 what estates not partible by, 116. 
 remarks on the jurisdiction of, in 
 
 partition of estates, 118, 119. 
 minor's estate of which due notice 
 
 has been given to, not liable to 
 
 sale for arrears of revenue, 121. 
 if there be arrears when minor's 
 
 estate ceases to be under Court, 
 
 Collector may attach, 122. 
 procedure to be followed by, for 
 
 ascertainment of revenue on ac- 
 quisition of land, 124. 
 to grant remission of revenue on 
 
 acquisition of land, 1 25. 
 procedure if ])roprietor declines to 
 
 accept ahalemenl of revenue 
 
 granted, 125. 
 jurisdiction of, regarding registration 
 
 under Act .\1, 161. 
 
 COMMISSIONER— 
 
 may c.xcm])L estate from revenue 
 
 sale, when, 105. 
 power of, to set aside revenue sale 
 
 in case of hardship, 107,108. 
 grounds for setting aside revenue
 
 GENERAL INDEX. 
 
 435 
 
 COMMISSIONER— CowZ/wa^-r/. 
 
 s;ile by ci\il suil must be men- 
 tioned ill ])elitioii of appeal tojog. 
 may set aside jjiitni sale when, 1 51, 
 152. 
 
 COMMON MANAGER— 
 
 Reg. V 1)1' 1S12 provided for the 
 appointment of, in case of dispute 
 amongst co-owners, 128. 
 
 District Judge having jurisdiction 
 to make the appointment, 128. 
 
 Regulation V of 1827, 128. 
 
 appointment of, under the Bengal 
 Tenancy Act, 129. 
 
 order of the District Judge ap- 
 pointing, not appealable hut High 
 Court has power of revision, 129. 
 
 COMMUTATION— 
 
 of khiraj in Mahomedan time into 
 money rent, 23, 24. 
 
 COMPENSATION— 
 
 . See Damages ; Apportionment ; 
 Land Acquisition. 
 
 CONTRACT— 
 
 policy of legislature in restricting, 
 between landlord and tenant, 
 179, 180. 
 
 compensation for breach of cove- 
 nant in, 182, 
 
 restricting alienation how far en- 
 forceable, 183. 
 
 not enforceable in case of involun- 
 tary alienation, 183. 
 
 ejectment for breach of covenant, 288. 
 
 by occupancy raiyat against right 
 to cut down trees invalid, 302. 
 
 against right to sub-let by occupancy 
 raiyat invalid, 306. 
 
 against right of surrender of occu- 
 pancy raiyat invalid, 307. 
 
 against acquisition of occupancy 
 right invalid, 328. 
 
 taking away occupancy right in- 
 valid, 328. 
 
 providing for ejectment of occupancy 
 raiyat, 328. 
 
 by occupancy raiyat regarding rent 
 and enhancement of rent, 332. 
 
 to pay a different rate of interest 
 invalid and when valid, 334, 335. 
 
 against right to claim reduction of 
 rent for diluvion invalid, 369. 
 
 CONTRIBUTION— 
 
 amongst co-owners of estates, 127, 
 128. 
 
 CONTRIBUTION— Co«//««^</. 
 
 quasi contracts arising out of pay- 
 ment of Govt. -revenue arid similar 
 other dues for the protection of 
 the estate, 127. 
 
 Contract Act ss. 69 and 70, 127. 
 
 co-sharer paying Govt, revenue has 
 no charge, 127, 128. 
 
 under the Bengal Tenancy Act co- 
 sharer paying rent has charge, 1 28. 
 
 CO-SHARER— 
 
 effect of payment of revenue by, 
 
 ".5- 
 contribution amongst co-owners of 
 
 estate, 127, 128. 
 quasi contract arising out of pay- 
 ment of Govt, revenue and 
 similar other dues for the pro- 
 tection of the estate, 127. 
 
 Contract Act ss. 69 and 70, 127. 
 
 paying Govt. Revenue has no 
 charge, 127, 128. 
 
 this is unjust, 128. 
 
 under the Bengal Tenancy Act co- 
 sharer paying rent has charge, 128. 
 
 Reg. V of 1 8 12 provided iox the 
 appointment of common manager 
 in case of dispute amongst, 128. 
 
 District Judge having jurisdiction 
 to make the appointment, 128. 
 
 Regulation V of 1827, 128. 
 
 appointment of common manager 
 under the Bengal Tenancy Act , 1 29. 
 
 order of District Judge appointing 
 manager not appealable but 
 High Court has power of re- 
 vision, 129. 
 
 right of, to deal separately with his 
 interest how far restricted, 194. 
 
 suit for arrears' of rent by one of 
 joint landlords, 202. 
 
 co-sharer landlord cannot acquire 
 occupancy right, 312, 313. 
 
 purchasing occupancy right loses 
 it, but the holding does not cease to 
 exist, 313 note. 
 
 COURT OF WARDS — 
 
 no estate liable to be sold for 
 arrears of revenue when under 
 the management of the, 121. 
 
 unpaid arrears a first charge on 
 sale proceeds of estate sold for 
 any cause while under the, 122. 
 
 if arrear remain due when estate 
 is released liy the. Collector may 
 attach, 122. 
 
 Board of Revenue is the, 123.
 
 43^ 
 
 GENERAL INDEX. 
 
 CULTIVATOR— 
 
 amongst Non-Aryan races in India 
 the idea prevails that land be- 
 longs to the people, the king only 
 being entitled to rent, 6. 
 
 ownership of subject to land re- 
 cognized by early Hindu Kings, 6. 
 
 king was simply the protector of 
 the people, lo. 
 
 cultivation insisted on in Ancient 
 India, I2. 
 
 penalties for non-cultivation im- 
 posed on, 13. 
 
 imposition of the khiraj in Maho- 
 medan time did not take away 
 the proprietary right of the 
 cultivator, 24. 
 
 in Mahomedan time cultivator had 
 right to alienate his land, 24. 
 
 CUSTOM— 
 
 occupancy right not bequeathable 
 
 except under, 299. 
 occupancy right not transferable 
 
 except under, 299, 300, 341. 
 onus on tenant to prove custom of 
 
 transferabilit}', 300. 
 if there is, occupancy right may be 
 
 acquired in homestead land, 316. 
 validates transfer of non-occu- 
 pancy holding, 344, 345. 
 as to any class of raiyat paying 
 
 at favorable rate, 356. 
 regulates incidents of homestead 
 
 lands. 316, 384. 
 
 DAMAGES— 
 
 to be paid by Zamindar if patni 
 
 sale is set aside, 153. 
 when under-tenureholder suffering 
 
 loss at patni sale is entitled to, 
 
 157. 
 measure of, for breach of covenant, 
 
 182. 
 for misuse of land by occupancy 
 
 raiyat, 301. 
 in lieu of interest on arrears, 335. 
 
 DAWK CESS— 
 
 See Cess 
 
 DEARAH— 
 
 See Chur 
 
 DEPENDENT TALUQS— 
 
 owners of, entitled to resume and 
 assess lands comprised within 
 their taluqs granted after 1st Dec. 
 1790, 72. 
 
 DEPENDENT TALUQS— 
 
 Continued. 
 
 lands held under invalid grants 
 formed into taluqs when, 74. 
 
 includes malguzari aymas for clear- 
 ing waste lands and also jungle- 
 buri tenures, 94. 
 
 what are, 132. 
 
 classes of, existing at the time of the 
 Decennial Settlement, 132. 
 
 Regulation V^III of 1793 classifies 
 taluqs into two classes, those of 
 which rent can be enhanced and 
 those of which rent is noi 
 enhanceable, 133. 
 
 rent could not be enhanced if grant 
 was for perpetuity at fixed rent, 
 and payment of rent for 12 years 
 had been made, 133. 
 
 if grantee held on payment of rent 
 for less than 12 years rent could 
 be enhanced, 133. 
 
 presumption in favor of taluqdar as 
 soon as it is proved that the taluq 
 had existed from before the Decen- 
 nial Settlement, 133. 
 
 enhancement of rent of, 133, 134. 
 
 the effect of the provisions of the 
 Regulations relating to, summa- 
 rized by Privy Council, 134, 135. 
 
 evidence to prove the existence of a 
 Taluq at the Decennial Settle- 
 ment, 135- . . 
 
 onus probandi in suits for enhance- 
 ment of rent of, 135. 
 
 right to enhance could be exercised 
 only after notice, 135. 
 
 requisites of such notice, 135. 
 
 grounds of enhancement of rent of, 
 136, 137- 
 See Taluqs 
 
 DEFAULTER— 
 
 notice under Sec, 7 Act XI to pro- 
 hibit payment to, after he has 
 made default. III. 
 
 may purchase but such sale does 
 not avoid incumbrances, III. 
 
 DHANHAR LAND— 
 
 See p. 357. 
 
 DIARAH— 
 
 See Chur, 
 
 DIHI PANCHANNAGRAM — 
 
 holdings in, 3H. 
 See KIl^s iiki1i:.1s 
 DISCLAIMER— 
 forfeiture of lease by, 23 1, 23 J.
 
 GKMERAL INDEX. 
 
 437 
 
 DISCLAIMER— Continued. 
 
 what constitutes, 232. 
 
 of the title of assignee of landlord, 
 
 232, 233. 
 under Bengal Tenancy Act who can 
 
 not be ejected for, 233. 
 
 DISQUALIFIED PROPRIETOR 
 
 no estate liat)le to he sold for arrears 
 of revenue while under the Court 
 of Wards, 121. 
 
 unpaid arrears a first charge on sale 
 proceeds of estate sold for any 
 cause while under the Court of 
 Wards, 122. 
 
 if arrears remain unpaid when estate 
 is released by the Court of Wards 
 Collector may attach, 122. 
 
 DISTRICT JUDGE— 
 
 has jurisdiction to appoint common 
 manager, 128, 129, 
 
 order of, appointing common 
 manager not appealable but High 
 Court has power of revision, 129. 
 
 DIWANI— 
 
 recognition of the Company's title, 
 
 29. 
 influence of the Mahomedan fiscal 
 
 system under the, 29. 
 confusion during the first few years, 
 
 29, 30. 
 revenue-free grants made after Com- 
 pany's accession to the, 66, 72. 
 the Directors adopted plans to 
 
 check further alienations, 67, 
 what to become of revenue-free 
 
 grants made after accession to 
 
 the, 71-75. 
 
 DURPATNI-DAR— 
 
 compensation to, on sale of Putni 
 Taluq for arrears, 157. 
 See Putni sale. 
 
 DOUBLE GOVERNMENT— 
 
 what it was, 30. 
 
 EARTH- 
 
 is res communes according to the 
 Indian sages, 3, 5. 
 
 distinction between Roman and 
 Ancient Indian ideas about pro- 
 perty in, 5,6. 
 See Property in Land. 
 
 according to Indian sages right 
 to portions of,was not in the soil 
 but in the usufruct, 4. 
 
 EARTH — Continued. 
 could not be given away, 5. 
 occupier of portion of, not owner 
 according to Savara. 5. 
 
 EAST INDIA COMPANY— 
 
 sovereignty of the. 29. 
 
 the Diwani, 29. 
 
 influence of the Mahomedan fiscal 
 system under the Diwani, 29. 
 
 confusion during the first few years, 
 29. 30. 
 
 started the theory of the proprie- 
 tary right of the Government, 30. 
 
 proprietary right was transferred to 
 Zamindars with this theory in 
 view, 30. 
 
 policy of the, as to revenue-free 
 lands, 58. 
 
 EJECTMENT— 
 
 taluqs held from the Permanent 
 Settlement not liable to, 165. 
 
 not allowed of permanent tenr.re 
 for non-payment of rent, 180. 
 
 conditions for, upon breach of coven- 
 ant in leases of permanent tenures 
 looked on with disfavour, 181. 
 
 of lessee by title paramount, 217 
 
 from a part, 218. 
 
 from the wrongful action of lessee, 
 219, 220. 
 
 notice to quit under Bengal Tenancy 
 andTransferofPropertyActs, 238,239, 
 
 notice must be proper, 239. 
 
 six months' notice, 240. 
 
 suit is not sufficient notice. 240, 24 1. 
 
 form of notice, 241. 
 
 raiyat at fixed rates not liable to, 
 except on breach of an express 
 covenant in contract, 288. 
 
 of occupancy raiyat, 302-304. 
 
 of non-occupancy raiyat, 346-348. 
 
 protection from ejectment from dwell- 
 ing houses, manufactories and other 
 permanent building on sale for 
 arrears of revenue, 311. 
 
 See Mahomedan Fiscal Govt. ; 
 Notice ; 
 Disclaimer. 
 
 ENCROACHMENTS— 
 
 in Sunderbuns, 52. 
 
 by tenant on landlord's land, 221, 
 
 293, 294- 
 no limitation against landlord in case 
 
 of, by tenant, 221, 222, 294. 
 by tenant on stranger's land, 222. 
 
 295-
 
 43^ 
 
 GE>JER AL INDEX, 
 
 E NC ROACH M E NTS— Continued. 
 suit for additional rent would lie 
 
 for encroached land, 295. 
 by third person, 368. 
 by landlord, 368, 369. 
 
 ENHANCEMENT OF RENT 
 
 Act in (.B.C. ) of 1878 definesand 
 limits the powers of Settlement 
 Officers in khas mahals regard- 
 
 •ngi 47- , , 
 
 by Settlement Officer in khas mahals 
 binding unless raiyat proves that 
 it is not in accordance with the Act, 
 
 47- 
 of dependent taluqs, 133-139. 
 oftaluqs, 138, 139, 166, 167. 
 of tenures, 176-178. 
 invalid contracts regarding, of 
 
 occupancy raiyat, 331, 332. 
 cannot be made within fifteen years 
 
 after the previous enhancement, 
 
 332. 
 but any arrangement in settlement 
 of dispute is not enhancement, 
 
 332. 
 
 landlord not debarred from recovering 
 rent at enhanced rate when paid 
 for three years, 332. 
 
 contract of enhancement not invalid 
 if it is on account of landlord's 
 improvement, 3 3 2. 
 
 landlord entitled to enhance if 
 productive power is increased 
 by drainage, 332. 
 
 contract to enhance not invalid 
 when the land has been held 
 at a specially low rate in con- 
 sideration of cultivation of any 
 particular crop for convenience 
 of landlord, 332. 
 
 of occupancy raiyat, 353-365 
 
 grounds of, under Act X of 1859 
 and Act Vlll (B. C) of 1869, 
 
 353, 355 
 prevailing rate,354, 355- 
 same class of raiyats 35Si 35^. 
 places adjacent, 356. 
 description of land, 357. 
 similar advantages, 357, 358- 
 value of produce and productive 
 
 power of land, 358. 
 rise in average prices, 358, 361. 
 rule of proportion how and wlicn 
 
 to be applied for, 35*<-36l. 
 average prices to be determined 
 
 from rates during a decennial 
 
 period, 361. 
 deduction of one-third, 362. 
 
 ENHANCEMENT OF RENT 
 
 increase in the productive power 
 
 of land, 362-364. 
 orchards, 364. 
 of improvement by fluvial action, 
 
 365. 
 notice formerly necessary. 373, 
 
 421. 
 now not necessary, 374. 
 decree for, when to take effect, 374. 
 gradual enhancement, 374, 
 restriction on frequent enhancements, 
 
 374- 
 of non-occupancy raiyat, 382, 
 See Burden of proof. 
 
 ESTATE— 
 
 as defined in Bengal Tenancy Act 
 includes revenue-free lands, 81. 
 
 also as defined in Bengal Cess Act, 
 82. 
 
 but not as defined in the Partition 
 Act, 82. 
 
 ordinary law of succession of the 
 owner applicable to, 112. 
 
 alienable in part or whole, 112. 
 
 protection from sale of share for de- 
 fault of a co-sharer, 113. 
 
 registration of names of proprietors, 
 
 113, "4. 
 separation of shares of, 1 14. 
 
 who is entitled to have se- 
 parate account opened, 114. 
 owners of specific portions 
 also entitled to separa- 
 tion of account, 1 14. 
 Collector may open separate 
 account where no objec- 
 tion, 114. 
 on objection parties to go 
 to the Civil Court, 1 14. 
 Sales of separated shares, 114, 115. 
 rules for, 114. 
 
 in case of deficient sale pro- 
 ceeds entire estate to he 
 sold when, 1 15. 
 effect of payment of revenue 
 by sharer, 115. 
 Partition of estates I 15 — 1 20. 
 
 For details see under this 
 heading. 
 what estates exemi)lcd from sale for 
 
 arrears of revenue, 120 — 123. 
 conlrii)Ution amongst co-owners of 
 
 estate, 127, 128, 
 (|uasi contracts arising out of pay- 
 ment of Govt, revenue and similar 
 other dues for the i)rolectioM of 
 the, 127.
 
 GENERAL INDEX. 
 
 43^ 
 
 ESTATE — Continued, 
 co-sharer jiaying Govt, revenue has 
 
 no charge, 127, 128. 
 independent taluq is an, 130. 
 separately recognized as such, when, 
 
 130, 131. 
 share of, sold at revenue sale in- 
 cumbrance not avoided, 162. 
 
 ESTOPPEL— 
 
 by conduct in ancient Hindu law, 19. 
 
 tenant induced into land by a per- 
 son without title not estopped from 
 denying such lessor's title, 337. 
 
 EVIDENCE— 
 
 evidentiary value of chittas, jum- 
 mabandis and maps prepared by 
 officers of Govt, under the Settle- 
 ment Regulations, 45, 46. 
 
 evidentiary value of taidads, 80. 
 
 copies of registers under the Land 
 Registration Act admissible in, 
 114. 
 
 to prove the existence of a taluq at 
 the Decennial Settlement, 135. 
 
 express recognition of taluq in the 
 Settlement proceedings may be 
 evidence of the right to hold ex- 
 empt from enhancement, 139. 
 \'alue of amaldastaks or anialnamas^ as 
 209. 
 
 of payment of rent at uniform rate 
 to establish fixity of rent must 
 be strict, 291, 292. 
 See Presumption. 
 
 EVICTION— 
 
 See Ejectment. 
 
 EXEMPTION— 
 
 Collector and Commissioner may 
 exempt estate from revenue sale, 
 when, 105. 
 
 express order of exemption neces- 
 sary, 105. 
 
 what estates are exempted from sale 
 for arrears of revenue, 120, 121. 
 
 estates under attachment or manage- 
 ment by Revenue Officers exempt 
 from sale for arrears of revenue, 
 123. 
 
 See. 17 Act XI of 1859, 123. 
 
 but the issue of certificate of attach- 
 ment is not attachment by Col- 
 lector, 123. 
 
 FARMER OF RENT— 
 
 See Ijaradar. 
 
 FISHERIES— 
 
 ^"(■c Jaikar. 
 
 FIXTURES— 
 
 See Leases ; 
 
 Non-agricultural lands. 
 
 FORESTS— 
 
 laws as to, 54. 
 
 Settlement Officers of, vested with 
 the powers of a Collector under 
 the Land Acquisition Act, 54. 
 
 rules for the protection of, 54. 
 
 income of Govt, from, under three 
 heads, 54. 
 
 FORFEITURE— 
 
 for breach of covenant in lease, 181, 
 288, 303, 304. 
 
 determination of lease by, 230, 231. 
 
 by disclaimer, 231. 
 
 relief against forfeiture, 235, 236. 
 
 waiver of, 234, 235. 
 
 effect of, on subleases and incum- 
 brances, 242. 
 
 on abandonment of occupancy hold- 
 ing, 299. 
 
 FRACTIONAL PROPRIETOR— 
 
 See Co-sharer. 
 
 FRACTIONAL SHARE- 
 HOLDER— 
 
 See Co-sharer. 
 
 GHASKAR LANDS— 
 
 See p. 357. 
 
 GHATWALI TENURES— 
 
 Ghatwals, 246, 257. 
 
 contest between Govt., Zamindarand 
 
 Ghatwals, 257, 258. 
 of Burdwan, 258. 
 of Chotanagpur, 258. 
 of Hazaribagh, 258. 
 of Lohardagga, 259. 
 of Manbhoom, 259. 
 of Monghyr, 259, 260. 
 of Bankura, 260, 261. 
 of Beerbhoom, 262 — 264. 
 of Khurukpur, 264 — 270. 
 apportionment of compensation in 
 
 case of acquisition of Ghatwal.i. 
 
 land, 270. 
 
 government- 
 Is landloid as defined in the Bengal 
 
 Tenancy Act in khds mahals, 51, 
 Road Cess payable by, for khds 
 
 mahals, 56.
 
 440 
 
 GENERAL INDEX. 
 
 GOVERNMENT— Contiuued. 
 
 but not Public Works Cess, 56. 
 
 Govt, dues from khas mahals realiz- 
 able by certificate procedure, 56. 
 
 private partition not binding on, 
 unless special sanction of Collector 
 is obtained, 115. 
 
 GRAZING GROUND— 
 
 See Pasture. 
 
 HIGH COURT— 
 
 order of District Judge appointing 
 common manager under Bengal 
 Tenancy Act not appealable, 
 129. 
 
 High Court has however power of 
 revision, 1 29. 
 
 HINDU JURISPRUDENCE— 
 
 assimilation of Hindu and Maho- 
 medan systems of fiscal adminis- 
 tration, 25. 
 
 See Mahomedan Fiscal Govern- 
 ment. 
 
 glosses and commentaries were pub- 
 lished under the influence of Hin- 
 du Rajas and Zamindars in 
 Mahomedan time, 26. 
 See Aryans. 
 
 HOMESTEAD LAND- 
 
 when occupancy right cannot be 
 
 acquired in, 316. 
 when may be acquired, 316, 317. 
 in many districts raiyats hold 
 
 homestead land without payment 
 
 of rent, 31?, 384. 
 object of sec. 182 Bengal Tenancy 
 
 Act, 317. 
 custom or usage regulates incidents 
 
 of, 316, 384- 
 when rent law applies to, 384, 
 
 385 
 effect of revenue sale on, 388. 
 enhancement of rent of, 389. 
 erection of permanent structures, 
 
 396. 
 acquiescence by landlord, 396. 
 injunction to restrain erection, 396, 
 
 397. 
 
 HUTS- 
 
 in the I'rcsitluncy inwns icniovable 
 
 at the termination of tenancy are 
 
 moveable property, 36. 
 are saleable in execution of decrees 
 
 of Presidency Small Cause Courts, 
 
 36. 
 
 IJARADAR— 
 
 cannot acquire occupancy right, 313. 
 
 on raiyat 'afterwards becoming, ac- 
 quisition of the right to remain 
 in abeyance, 313, 314, 
 
 but if right already perfected it 
 would not be lost, 314. 
 See Lease. 
 
 ILLEGAL CESS— 
 
 Dawk Cess is a legalised abwab, 97. 
 but is not realiseable as rent, 97. 
 Regulation VIII imposed restric- 
 tions on levying, 278. 
 
 ILLEGALITY— 
 
 if there is illegality in revenue sale 
 no appeal to Commissioner neces- 
 sary, 109. 
 
 whether non-compliance of the pro- 
 visions of sec. 6 was, no. 
 
 IMPROVEMENT— 
 
 validity of enhancement of rent on 
 account of improvement by land- 
 lord, effect of, 332, 365. 
 
 registration of, b}' landlord, a neces- 
 sary preliminary to suits for en- 
 hancement of rent, 365. 
 
 by fluvial action, 365. 
 
 INCOME TAX— 
 
 not payablti by Zamindars, 99. 
 but payable in respect of estates 
 within municipality, 99. 
 
 INCUMBRANCE— 
 
 defaulter purchasing at revenue sale 
 not entitled to avoid. III, 162. 
 
 the zamindar may resort to the ordi- 
 nary })rocedure for sale for arrears 
 and the effect of such sale is the 
 same regarding avoidance of, as 
 sales imder Reg. VIII, 144. 
 
 right of purchaser at putni sale to 
 avoid, 154-156. 
 
 adverse possession of any part of the 
 lands is an, 155. 
 
 protected at revenue sale when regis- 
 tered under act XI, 161. 
 
 not avoided by revenue sale of share 
 of estate, 162. 
 
 also not by benami purchase by 
 defaulter, 162. 
 
 avoidance of, at sale for arrears of 
 rent, 200. 
 
 remedies of inc mnbrancer paying 
 arrears to stop sale, 301.
 
 GENERAL INDEX. 
 
 441 
 
 INCU M B R A NCE—Con/ifiued. 
 
 effect of determination of lease on, 
 
 241, 242. 
 surrender does not avoid, 241, 242. 
 effect of forfeiture on, 242. 
 
 INDEPENDENT TALUQS— 
 
 invalid lakhiraj lands exceeding 
 '■ hundred bighas resumed and 
 
 assessed become, 73. 
 who are independent taluqdars and 
 
 who are not, 94. 
 which of the Malguzari Aymas are 
 
 independent taluqs, 94. 
 are estates, 130. 
 separately recognized as such when, 
 
 130. I3I- 
 
 INDIGO PLANTER— 
 
 may be rai3^at, 287. 
 indigo concern may acquire occu- 
 pancy right, 311, 312. 
 
 INJUNCTION— 
 
 for misuse of land by occupancy- 
 
 raiyat, 301. 
 See Lease. 
 
 INSTALMENTS— 
 
 of revenue and payment thereof, 
 104, 105. 
 
 auction purchaser liable for instal- 
 ments that have fallen due since 
 the default of kist on which sale 
 has taken place, in. 
 
 of rent regulated by agreement or 
 established usage, 333, 334. 
 
 agreement as to, need not be evi- 
 • ' denced by written instruments, 
 
 333- 
 
 INTEREST— 
 
 payable on arrears of rent, 334, 335. 
 rate.of, where the Bengal Tenancy 
 
 - Act does not prevail regulated by 
 local usage or practice, 334. 
 
 contracts as to, where the Act 
 prevails, 334, 335. 
 
 INVALID LAKHIRAJ— 
 
 - holder of, in khas mahal is bound 
 
 by the rent assessed under the 
 Settlement Regulations, 46. 
 
 raiyats however are not bound 
 "unless they assent or the law as to 
 enhancement of rent is complied 
 with, 46. 
 
 by operation of the Resumption 
 Regulations large quantities of 
 
 A (5) 
 
 INVALID LAKHIRAJ— Co«/w«^a'. 
 
 lands within the ambit of per- 
 manently settled estates came into 
 the direct possession of Govt., 49. 
 what revenue free grants are invalid 
 
 71-75- 
 
 INVALID CONTRACT— 
 
 See Contract. 
 
 IRREGULARITY— 
 
 whether non-compliance of the 
 provisions of Sale Law was a 
 mere irregularity, no. 
 
 ISLAND CHURS— 
 
 See Churs. 
 
 JAIGIRS— 
 
 these were grants to military offi- 
 cers and servants of the State, 64. 
 
 ordinarily life-tenures, 64. 
 
 occasionally held as hereditary and 
 alienable grants, 64. 
 
 of two kinds, conditional and un- 
 conditional, 64. 
 
 not grants of land but merely in- 
 dicate interception of the khiraj, 
 they are not strictly lakhiraj, 65. 
 were declared heritable and per- 
 manent, 245. 
 
 JAL LAND- 
 'S".?^ P-357. 
 
 JALKAR— 
 
 right of occupancy in, 318, 402. 
 enhancement of rent of, when allow- 
 ed, 357- 
 incident of tenancy in, 402, 403. 
 determination of leases of, 403. 
 
 JALPAI LANDS— 
 
 what they are, 55, 56. 
 
 are khds mahals, 56. 
 
 claim to, by the zemindar of 
 
 Midnapur disallowed by the 
 
 Privy Council, 56. 
 
 JOTEDARS— 
 
 are occupants of land in Bhutan 
 
 Doars, 44. 
 hold lands in Darjiling, 44. 
 
 JUMMABANDIS— 
 
 Settlement Officer preparing chittes 
 and jummabandis under Reg. 
 \^II of 1822 to give notice to 
 raiyat, 45.
 
 442 
 
 GENERAL INDEX. 
 
 JUMMAB AHD\S— CoHtinued. 
 
 are final until altered after full 
 investigation in a regular suit, 
 
 45, 47. 
 evidentiary value of, prepared by 
 ofScer of Govt, under the Settle- 
 ment Regulations, 45, 46. 
 
 JUNGLEBURI GRANTS— 
 
 Chittagong contains large numbers 
 
 of estates, taluqs and holdings 
 
 under, 42. 
 Jungleburi leases in Sunderbuns, 53. 
 these tenures are heritable and 
 
 transferable, 54. 
 Jungleburi taluq is a dependent 
 
 taluq, 132. 
 noabad lands in Manbhoom, 420. 
 
 JURISDICTION— 
 
 of Calcutta Small Cause Court in 
 suit between landlord and tenant 
 in Calcutta, 36, 37. 
 
 in resumption cases, 75, 76. 
 
 if no arrear revenue sale can be set 
 aside by the Civil Court, 105. 
 
 of Civil Courts to set aside revenue 
 sale is limited, log. 
 
 of Collector to open separate ac- 
 count of revenue where no objec- 
 tion, 114. 
 
 on objection Civil Court to decide, 
 
 114. 
 
 of Collector to make actual parti- 
 tion of estate, 115. 
 
 Civil Courts can only pass decree 
 for partition after ascertainment 
 of share, 115. 
 
 of Collcitor ousted in what cases 
 of private partition, 115, 116. 
 
 Civil Court may exercise discretion 
 in suit for partition by Hindu 
 widow, 1 1 6. 
 
 what estates not partible by Col- 
 lector, 116. 
 
 Civil Court may decree partition 
 even when revenue below pre- 
 scribed limit, 1 16. 
 
 of Civil Courts in matters relating 
 to partition, 1 17. 
 
 conflict of cases about, 117, 118. 
 
 of Collector in partition of estates, 
 remarks on, 118, 1 19. 
 
 of District Judge to appoint com- 
 mon manager, 128. 
 
 of Collector regarding registration 
 of teiuire under Act XI, 161. 
 
 of Civil Court regarding registration 
 of tenure under Art XI, 161. 
 
 JURISDICTION— Co«/»«K^a'. 
 
 of Civil Court to partition taluqs, 
 165. 
 
 of Civil Court in suit for enhance- 
 ment of rent of homestead land, 
 389. 
 
 in suit to recover rent of pastures, 
 
 405. 
 
 of Collector and Commissioner in 
 non-regulation districts, 421. 
 
 conflict of, in non-regulation dis- 
 tricts, 421. 
 KHAMAR— 
 
 See Proprietor's private land. 
 KHA'S— 
 
 See Proprietor's private land. 
 KHA'S MAHALS— 
 
 See Lecture II, 32-57. 
 
 definition of, 32. 
 
 Calcutta, 32-37. 
 
 For details see under this heading. 
 
 the Twenty-four Perganahs, 37. 
 
 Burdwan, Midnapur and Chitta- 
 gong were permanently settled, 
 
 37. 
 Dihi Panchannagram, 37-39. 
 
 holdings in, 38, 39. 
 Chinsurah, 39. 
 Serampur, 40. 
 Baranagar, 40. 
 
 holdings in the above three khas 
 
 mahals are permanent, hereditary 
 
 and transferable, 40. 
 other classes of, 40. 
 Resumption Regulations, 40, 
 Chittagong, 41. 
 
 For details see under this heading. 
 hill lands of Bhagulpur, 43. 
 
 mostly inhabited by Santhals, 43. 
 Santhal Perganahs, 43. 
 
 See under this heading. 
 Chotanagpur, 43. 
 
 See under this heading. 
 Bhutan Doars, 44. 
 
 are parts of jalpaiguri and were 
 acquired in 1870, 44. 
 
 settled for ten years in 1870, 44. 
 
 settlements were withjotedars, 44. 
 
 jotes saleable for arrears of 
 revenue, 44. 
 
 jotedars are occupants of lands 
 in, 44. 
 Darjiling, 44. 
 
 large tracts waste land, 44. 
 
 some portion settled with jote- 
 dars, 44. 
 
 Govt, has appropriated portion 
 for Cinchona cultivation, 44. 
 
 portion held by mahaidars, 44.
 
 GENERAL INDEX. 
 
 443 
 
 KHA'S MAHALS— Cofiiumed. 
 
 some held in fee simple or 
 revenue free, 44. 
 Angul, 44. 
 
 formerly a Tributary State, 44. 
 confiscated in 1847, 44. 
 settlement directly with raij'ats, 
 44. 
 Khurda, 44. 
 
 comprises half of Puri district, 
 
 44. 
 until 1837 settled mahalwari with 
 
 sarbarakars, 44. 
 raiyatwari settlement in 1837, 44. 
 rent collected through sarbara- 
 kars, 44. 
 settlement and adjustment of rent 
 in, 44-48. 
 
 See Settlement Regulations. 
 Assam, 49, 
 
 the whole a scheduled district 
 under Act XIV of 1874 and 
 statute 33 Vic, Cap. 3 applies 
 to it, 49. 
 a part of the country permanent- 
 ly settled, 49. 
 rest Govt, property, 49. 
 Settlement Reguhitions of the 
 Bengal Code supplemented by 
 rules framed by Govt, are in 
 force, 49. 
 by operation of the Resumption 
 Regulations large quantities of 
 lands within the ambit of per- 
 manently settled estates came 
 into direct possession of Govt., 
 49. 
 purchased and escheated estates, 
 
 49. 50. 
 island churs, the property of 
 
 Govt,, 50. 
 some temporarily settled, 50. 
 alluvial accretions to an estate, 50. 
 the Govt, has right to assess such 
 
 lands with additional revenue, 
 
 when, 50. 
 held khis only when proprietor 
 
 declines settlement, 50. 
 but even then proprietor entitled to 
 
 malikana, 50. 
 Regulation XI of 1825, 50. 
 Act IX of 1847, 50. 
 assessment of revenue, 50. 
 
 made on principles laid down 
 
 in Reg. VII of 1822 and Regula 
 
 tions and Acts modifying it, 
 
 50- 
 accreted lands formed into separate 
 estates, 50. 
 
 KHA'S MAHALS— Coniinue J. 
 
 old policy of Govt, was to settle 
 lands permanently after assess- 
 ment under the Settlement Regu- 
 lations, 50. 
 
 since 1861 the policy of selling 
 estates outright was also adopted, 
 
 51- 
 since 1871 temporary settlement 
 
 only allowed, 51. 
 in 1875 Govt, ruled that there 
 
 should be khds management 
 
 whenever practicable, 51- 
 rules of settlement, 51. 
 Govt, is landlord as defined in the 
 
 Bengal Tenancy Act, 51. 
 amount payable to Government is 
 
 rent, 51. 
 but proprietary interest of the State 
 
 merges in the paramount title 
 
 and rent is called revenue, 51. 
 the right to settle the revenue is 
 
 regulated by Chap. X of Bengal 
 
 Tenancy Act where that Act 
 
 applies, 51. 
 same rule applicable to temporarily 
 
 settled estates, 51. 
 Orissa, 52. 
 
 although Reg. VII of 1822, IX 
 of 1825, and IX of 1833 and 
 Act VIII (B.C.) of 1879 apply 
 the procedure for fresh settle- 
 ment is that laid down in Chap. 
 X of Bengal Tenancy Act, 52. 
 Sunderbuns, 52-54. 
 
 For details see under this heading, 
 forests, 54. 
 forest laws, Act VII of 1865 and Act 
 
 VII of 1878, 54. 
 forest Settlement Officers were vested 
 
 with the powers of a Collector 
 
 under the Land Acquisition Act, 
 
 54- ... 
 
 rules for the protection of forests, 
 
 54- 
 income of Govt, from forests may 
 
 be classed under three heads, 54. 
 acquisition of land by Govt., 55. 
 
 salt land, 
 
 55, 56. 
 
 or jalpai land, 
 
 Govt, paid khalari rent for, 55, 
 
 settled as khAs mahal, 56. 
 
 Govt, absolute right to salt land, 56. 
 
 Road Cess payable by Govt, for, 56. 
 
 but not Public Works Cess, 56. 
 
 Govt, due realizable by certificate 
 procedure, 56. 
 
 some provisions of the Public De- 
 mands Recovery Act, 56.
 
 444 
 
 GENERAL INDEX. 
 
 KHA'S MAHALS— CoH/inu^d. 
 
 remarks on certificate procedure, 57- 
 
 law amended since, 57. 
 
 if grantee of invalid lakhiraj ex- 
 ceeding one hundred bighas 
 made prior to ist Dec. 1790 
 refuses settlement the land to be 
 held khas, 73. 
 
 See Invalid lakhiraj. 
 
 KHARKAR LANDS— 
 
 S^^ P- 357- 
 
 KHIRAJ— 
 
 defined, 23. 
 
 never formally levied in India, 24. 
 
 when levied it was soon commuted 
 to money rent, 23, 24. 
 
 the imposition of, did not take away 
 the proprietorship of the cul- 
 tivator, 24. 
 
 no serious effort made for collec- 
 tion of, from cultivators till the 
 reign of Akbar, 25. 
 
 effect of the imposition of wasi/a 
 Mir of, 24. 
 
 \S<fi? Mahomedan Fiscal Government. 
 
 KHODKAST RAIYAT— 
 
 See Raiyat. 
 
 KHURDA— 
 
 until 1837 settled mahalwari with 
 
 sarbaiakars, 44. 
 raiyatwari settlement in i<S37, 44. 
 rent collected through 
 
 44- 
 
 sarbarakars, 
 
 KING— 
 
 uinougst non-Aryan races in India 
 the idea prevails that land be- 
 longs to the people, king only 
 entitled to rent, 6. 
 
 ownership of the subject to land 
 recognized by early Hindu Kings, 
 6. 
 
 sovereign entitled only to a share 
 of the produce, 7. 
 
 Rig Veda, tenth Mandal, 8. 
 
 Narada's comment on the text of 
 Rig Veda, 8. 
 
 Manu and other texts, 8, 9. 
 
 Baudhayana, 9. 
 
 Parasara, 9. 
 
 authorities however not unanimous 
 about the extent of the king's 
 share, 10. 
 
 general opinion that king's share 
 is the sixth, 10. 
 
 jhth, tenth 
 considered 
 
 K\tAG~-CoK/inue,f. ■ 
 
 but smaller shares ei 
 and even twelfth 
 proper by some, 10. 
 
 Jaimini's Mimansa Aphorism, 10.' 
 
 Savara's and Sayana's commentaries 
 thereon, 10. 
 
 was simply the protector of the 
 people, 10. 
 
 the word king is used as synonym- 
 ous with the expression " the 
 appropriator of the sixth 
 share," 11. 
 
 Srikrishna Tarkalankar says king 
 only entitled to taxes, 1 1. 
 
 in Mahomedan time the sovereign 
 became entitled only to a share 
 of the produce, 24. 
 
 zemindars had to perform the func- 
 tions of a sovereign, 26. 
 
 the English started the theory of the 
 proprietary right of the ruler, 30. 
 
 with this theory in view proprietary 
 right was transferred to zemin- 
 dars, 30. 
 
 LAKHIRAJ LAND— 
 
 result of extension of the Cess Act 
 
 to, 57. 
 person claiming under a lakhiraj 
 
 title cannot acquire occupancy 
 
 right, 314. 
 
 See Presumption ; 
 Resumption law. 
 
 LAND ACQUISITION— 
 
 forest Seilienient Officers were 
 vested with the powers of a Col- 
 lector under Act X of 1870, 54. 
 
 land acquired by Govt, held kh^s, 
 
 55- . 
 successive laws for acquisition oflan.d, 
 
 55. . 
 
 compensation for acquisition of 
 
 land for public purposes, 124. 
 how calculated, 124. 
 procedure to be followed by Col- 
 lector in determining the 
 
 amount of compensation on, 124, 
 
 125. 
 rules under Sec. 59 of Act X of 
 
 1870, 124. 
 rules framed under Sec. 55 of Act J 
 
 of 1894, 124, 125. 
 procedure where proprietor declines 
 
 to accept abatement of revenue 
 
 on, 125. 
 date when abatement or remission 
 
 of revenue has effect, 135.
 
 GENERAL INDEX. 
 
 445 
 
 LANDACQUISITION-Co«/r««^^. 
 
 priin'iplcs under which compensa- 
 tion is lo be apportioned between 
 proprietor and tenure holder, 
 203, 204. 
 
 apportionment of compensation in 
 case of acquisition of Ghatwali 
 land, 270. 
 
 LAND-HOLDER- 
 
 liabiliiy of, under Reg. XI of 1806, 
 and VI of 1806 to suppl}- provis- 
 ion &c. to the army, 123, 124. 
 . penalty for default, 124. 
 
 liable to give information of certain 
 offences, 124. 
 
 their officers also liable, 124. 
 
 sec. 154 of Act XLV of i860, 124. 
 
 sec. 45 of Act X of 1882, 124. 
 
 LANDLORD— 
 
 in khas mahals, Govt, is the 
 
 landlord as defined in the Bengal 
 
 Tenancy Act, 51. 
 but the proprietary interest of 
 
 Govt, merges in the paramount 
 
 title, 51. 
 holding land in benami of another 
 
 cannot acquire occupancy right, 
 
 312. 
 
 LANDLORD AND TENANT— 
 
 law of, in Calcutta, 34-37. 
 
 jurisdiction of Calcutta Small 
 Cause Court in suits between land- 
 lord andltenant in Calcutta, 36 ,37 
 
 interpretation of deeds in determi- 
 ning the real character and 
 incidents of lease, 184, 185. 
 
 law of England when applied, 186. 
 
 effect of fraud in transactions bet- 
 ween, 191. 
 
 suit for arrears of rent by one of 
 joint landlords, 202. 
 
 such a suit must be treated as a 
 suit on an ordinary contract, 202. 
 
 execution of decree by a co-sharer 
 is an execution under the Civil 
 Procedure Code and not one 
 under Chapter XIV of the 
 Bengal Tenancy Act, 202. 
 
 encroachment by tenant on lessor's 
 land 221, 222. 
 
 encroachment by tenant on stranger's 
 land is for landlord's benefit, 222. 
 
 rules for the determination of 
 relationship of, 337, 339. 
 
 suit for delivery of pottas and 
 kabulyats, 375, 376. 
 
 LANDLORD AND TENANT— 
 
 Continued. 
 
 poltas were to be at fair and equit- 
 able rales, 375. 
 
 determination of the incidents of 
 tenancy, 376, 377. 
 
 what the court to decide in applica- 
 tion under Sec. 158 of Bengal 
 Tenancy Act, 376, 377. 
 
 Agrarian Disputes Act and Sec. 112 
 Bengal Tenancy Act, 381. 
 
 different laws in different districts, 
 407, 408. 
 
 See Lease. 
 
 LAND REGISTRATION ACT— 
 
 registers of lakhiraj land prior to, 
 79, 80. 
 
 registers of lakhiraj land under the, 
 80,8.. 
 
 sec. 60 of Act VII (B.C.) of 1876 
 applies to revenue-free lands, 81. 
 
 the Act does not deal with lands 
 which h?ve not been admitted 
 to be revenue-free by proceedings 
 under the Resumption Laws, 81. 
 
 old Land Registration laws, 1 13. 
 
 Bengal Act VII of 1876, 113, i\a^. 
 
 registers, 113. 
 
 copies of register admissible in 
 evidence, 113, 114. 
 
 no one bound to pay rent to any 
 person whose name is not regis- 
 tered under the, 8 1 . 
 
 suits for rent not maintainable un- 
 less claimant's name is registered 
 under the, 81. 
 
 See Evidence. 
 
 LAND SYSTEM AMONGST 
 ARYANS— 
 
 See Arj-ans. 
 LEASE— 
 
 terms of, regulate relation between 
 lessor and lessee, 173. 
 
 interpretation of written contracts 
 of, 173, 174, 214. 
 
 permanent mukurrari may be granted 
 on what terms, 180. 
 
 breach of covenant of, 181, 182. 
 
 interpretation of deeds, 184, 185, 214. 
 
 law of England occasionally applied, 
 186. 
 
 sources of law regarding, 207. 
 
 Transfer of Property Act, 207. 
 
 how created, 208. 
 
 void leases and possession there- 
 under, 209, 
 
 amaldastak or amalnama, 209.
 
 446 
 
 GENERAL INDEX. 
 
 LEASE— Continued. 
 agreement to lease, 210. 
 who may grant, 210, 2n, 390, 391. 
 power of manager of joint family, 
 
 211, 
 
 sevaet and mutwallis, 211, 212. 
 
 guardians of infants, 212, 213. 
 
 Hindu widows, 213, 399. 
 
 mortgagor to grant, 212. 
 when begins to operate, 214, 215. 
 present possession not necessary to 
 
 validate, 215, 216. 
 covenant to grant new lease on ex- 
 piration of old, 2i5, 227. 
 delivery of possession by lessor, 216. 
 . when lessee absolved from liability 
 
 to pay rent, 216. 
 effect of not mentioning rate of rent 
 
 in covenant of, 216. 
 eviction of lessee by title paramount, 
 
 217, 218. 
 eviction from a part, 218. 
 eviction from wrongful action of les- 
 
 see, 219, 220. 
 disturbance of lessee's possession, 220. 
 encroachment by tenant on lessor's 
 
 land, 221, 
 lessee cannot acquire any right 
 
 against lessor during lease, 222. 
 limitation against landlord, 223. 
 payments made by lessee for lessor's 
 
 benefit, 224. 
 assignment of lessor's right, 224. 
 lessee's power of transfer, 225, 392, 
 
 393 
 
 lessee's liability when continues after 
 transfer, 225 
 
 assignee's liability when begins, 225. 
 
 assignee bound only by covenants 
 running with the land, 226. 
 
 what covenants run with the land, 
 226, 
 
 duration of, 227. 
 
 option determining, 227. 
 
 determination of, 228. 
 
 doctrine of merger, 228 — 230. 
 
 determination by forfeiture, 230, 
 231. 
 
 forfeiture by denial of landlord's 
 title, 231 
 
 no notice of ejectment on forfeiture 
 for disclaimer, 231, 232. 
 
 what constitutes disclaimer, 232. 
 
 disclaimer of the title of assignee of 
 landlord, 232, 233. 
 
 under Bengal Tenancy Act perma- 
 nent tenure-holder, raiyat at fixed 
 rate and occupancy raiyat cannot 
 be ejected for disclaimer, 233. 
 
 LEASE — Continued. 
 
 waiver of forfeiturre, 234, 235. 
 
 relief against forfeiture, 235 — 237. 
 
 result of holding over, 238. 
 
 determination of, also determines 
 sub-leases and interests created 
 by lessee, 241. 
 
 surrender does not avoid incum- 
 brances, 242. 
 
 on expiration of, what becomes of 
 rights acquired by lessee, 242,243. 
 
 merger not applicable when, 242, 
 243- 
 
 occupancy right not affected by de- 
 termination of lease, 243. 
 
 tenancies from year to year, 391, 392. 
 
 heritability, 393. 
 
 misuse of land, 393. 
 
 working mines or quarries, 393,394. 
 
 erection of permanent structures, 
 396. 
 
 acquiescence of landlord, 396, 397 
 
 injunction to restrain erection, 397, 
 398. 
 
 presumption of permanency from 
 long occupation, 398. 
 
 fixtures, 399 — 402. 
 
 subleases, 399. 
 See Ijaradar ; 
 
 Jungleburi Leases, 
 
 LESSEE— 
 
 See Lease ; 
 Ijaradar. 
 
 LIEN— 
 
 of under-tenure holder paying into 
 court money to protect superior 
 tenure, 201. 
 
 LIFE-ESTATE— 
 
 holder of, not entitled to partition 
 
 of estate, 1 16. 
 but Hindu widow is entitled, 116. 
 
 LIMITATION— 
 
 extinguishment of right in ancient 
 India by, 21. 
 
 in suits by raiyat to set aside jumma- 
 bandis prepared by Settlement 
 Officers, 47. 
 
 in resumption cases, 78, 79- 
 
 in suit to set aside revenue sale, 109. 
 
 in suit for payment of surplus pro- 
 ceeds of revenue sale, 112. 
 
 in suit for malikana, 126, 
 
 in suit to set side putni sale, 152. 
 
 in suit for arrears of putni rent when 
 putni sale is set aside, 154.
 
 GENERAL INDEX. 
 
 447 
 
 UMlTATlObi— Continued. 
 
 in suit to avoid incumbrance, 162, 
 200. 
 
 no limitation against landlord in 
 case of encroachment by tenant, 
 221, 223. 
 
 in suit to eject tenant on determina- 
 tion of lease, 233. 
 
 against tenureholder and raiyat for 
 breach of condition of lease, 233, 
 
 234- 
 in suit for ejectment of occupancy 
 
 raiyat for breach of covenant, 304. 
 
 in suit for arrears of rent, 339. 
 
 MAHALDARS— 
 
 hold lands in Darjiling, 44. 
 
 MAHOMEDAN FISCAL 
 SYSTEM— 
 
 Mahomedans did not interfere with 
 Brahminical ideas about fiscal 
 system, 11. 
 
 they had their own system of juris- 
 prudence, 22. 
 
 their fiscal system was of recent 
 date, 22. 
 
 their rules applicable to infidels not 
 applied to India, 23. 
 
 they levied khiraj which was soon 
 commuted to money rent, 23, 24. 
 
 imposition of the khiraj did not 
 take away the proprietorship of 
 the cultivator, 24. 
 
 cultivator had right to alienate his 
 land, 24, 
 
 the sovereign became entitled only 
 to a share of the produce, 24. 
 
 Mahomedan fiscal S3'stem practically 
 agreed with the Hindu system, 25. 
 
 assimilation of the Hindu and Maho- 
 medan systems, 25. 
 
 no serious effort made for collection 
 of khiraj from cultivators till the 
 reign of Akbar, 25. 
 
 in Mahomedan time zemindars were 
 theoretically mere collectors of 
 revenue, 26. 
 
 but they had to perform the function 
 of a sovereign, 26. 
 
 in fiscal matters their authority was 
 supreme, 26. 
 
 revenue settlements under Mahome- 
 dan rulers, 27. 
 
 Allauddin Khiliji, 27. 
 
 Sher Shah, 27. 
 
 Selim Shah, 27. 
 
 Akbar, 27. 
 
 Todar Mai's reform, 27, 28. 
 
 MAHOMEDAN FISCAL SYS- 
 
 TE M — Continued. 
 he entirely ignored the distinction 
 between oosher and khiraj., 
 between Mahomedans and Hin- 
 dus, 27. 
 instead of the sixth the rate was 
 increased to a fourth and occa- 
 sionally to a third, 27. 
 rights of cultivators, 28. 
 ejectment unknown except for non- 
 cultivation or continuous nonpay- 
 ment of rent, 28. 
 the influence of the Mahomedan 
 
 system after the Diwani, 29, 
 English ideas as to property in land 
 same as the Mahomedan, 30. 
 
 MALGUZARI AYMAS— 
 
 which of them are dependent taluqs 
 and which are independent, 94 
 
 MAL LANDS— 
 
 See Burden of proof. 
 
 MALIKANA- 
 
 proprietor declining settlement of 
 accretions to his estate is entitled 
 to receive, 50. 
 
 what is, 125. 
 
 rate of, 125, 126, 
 
 how paid, 125. 
 
 grants rare in Bengal but common 
 in Behar, 126. 
 
 is not rent, 126. 
 
 but is a distinct proprietary right 
 and an interest in land, 126, 
 
 suit for, is money charged upon im- 
 movable property, 126. 
 
 limitation in suits for, 1 26, 127. 
 
 suit for recovery of, tenable, 127. 
 
 MAPS— 
 
 evidentiary value of, prepared by 
 Settlement Officers, 45, 46. 
 
 MATHOT— 
 
 See Illegal cess. 
 
 MEASUREMENT— 
 
 standard pole, 369, 370. 
 
 landlord's right to measure,370, 371. 
 
 part proprietor cannot apply for 
 
 measurement, 372. 
 rent-free lands may be measured, 
 
 372. 
 but not revenue-free lands, 372. 
 procedure for measurement, 373. 
 in non-regulation districts, 422.^
 
 .448 
 
 GENERAL" index: 
 
 MERGER— 
 
 how far there is, when zemindar 
 
 purchases putni taluq at putni 
 
 sale, 156. 
 of leases, 228 — 230. 
 not applicable when temporary 
 
 lessee acquires any subordinate 
 
 right, 242, 243. 
 of occupancy right, 342, 
 
 MINORS— 
 
 See Disqualified Proprietors. 
 
 minor's estate of which due notice 
 has been given to Collector not 
 liable to sale for arrears of revenue, 
 121. 
 
 MISUSE— 
 
 of land by occupancy raiyat, 300, 
 301. 
 
 MOOSTAGIR- 
 
 See Ijaradar ; 
 Lease. 
 
 MORTGAGEE— 
 
 has right to recover his money from 
 surplus proceeds of revenue sale, 
 III. 
 
 NIJ JOTE— 
 
 See Proprietor's private 
 NIRIK— 
 
 See p. 355. 
 
 xnd. 
 
 NiSF JUMMA— 
 
 Govt, had right to, in what cases, 
 
 73, 74- 
 
 NON- AGRICULTURAL 
 LAN DS — 
 
 law applicable to, 385. 
 
 Transfer of Property Act how far 
 applicable, 386, 387. 
 
 no right acquired by mere occupa- 
 tion, 387, 3«8. 
 
 rent may be enhanced, 388. 
 
 notice of enhancement, 389, 390. 
 
 plantations and gardens, 390. 
 
 incidents of leases, 390, 391. 
 
 tenancies from year to year, 391, 
 392. 
 
 transferabdity, 392. 
 
 herilability, 393. 
 
 misuse of land. 393. 
 
 working mines or quarries, 393, 394. 
 
 right to minerals, 395, 39(1. 
 
 erection of permanent structures, 
 396. 
 
 given by 
 
 NON-AGRICULTURAL 
 
 LANDS — Continued. 
 acquiescence of landlord, 396, 397. 
 injunction to restrain erection, 
 
 397, 399- 
 
 presumption of permanency from 
 
 long occupation, 398. 
 fixtures in temporary lease-holds, 
 
 398, 399- 
 subleases, 399. 
 
 leases by Hindu widows, 399. 
 fixtures in lease-holds 
 
 Hindu widows, 399 — 402. 
 public or customary rights, 404. . . 
 burning grounds and burial places, 
 
 405, 406. 
 right to take wood from jungles, 406. 
 See Homestead land ; 
 Pastures. 
 NON-BADSHAHI GRANTS— 
 three classes according to quantity, 
 
 also three classes according to time, 
 71, 72. 
 
 all revenue free grants made since 
 Diwani declared invalid, 72. 
 
 Grants exceeding one hundred Hghas. 
 
 resumable and assessable by Govt, 
 72. 
 
 if grant posterior to the 1st Dec. 
 1720 the right to resume and ass- 
 ess was in t-he proprietors of 
 estates or dependent taluqs, 72. 
 
 putnidars and owners of similar 
 permanent tenures entitled to re- 
 sume and assess, 72. 
 
 but notwithstanding the grant of 
 putni or otherwise the propiieti'^r 
 could resume and assess, 72. 
 
 when land e.vceeding one himdred 
 bighas is held by lakliirajdar the 
 presumption is that it is held 
 under one grant, 73. 
 
 how presumption is rebutted, 73. 
 
 grants made previous to I2th April, 
 1 77 1 in Pengal and 26th Sep. 
 1 77 1 in Bchar or (.)rissa, Govt, 
 had right to nis/ jutnina, 73. 
 
 progressive jumma fixed when, 73. 
 
 if grant be subsequent to the afore- 
 said dates, ordinary jumma to be 
 fixed, 73. 
 
 taluqs thus formed were indepen- 
 dent taluqs, 73. 
 
 if grantee refused to accept settle- 
 ment the estate held as khis 
 mahal, 73. 
 
 grants subsequent lo ist December 
 1790 invalid, and lands to lie
 
 GENERAL INDEX. 
 
 449 
 
 NON-BADSHAHI GRANTS— 
 
 Colli hlHt'd. 
 
 considered mal hinds of the estate 
 
 within which it lies whatever the 
 
 quantity, 73, 74. 
 Grants exceeding tetijnglias hut less 
 
 than one hundred. 
 
 land covered by such grants to 
 form part of the estate or taluq 
 within which the land was 
 situated, 74. 
 
 if grantee held under sanad dated 
 iDetween 12th Aug. 1765 and 
 I2lh April 1 77 1 in Bengal and 
 26th Sep. 1 77 1 in Behar or 
 Orissa, he was entitled to hold 
 the land as dependent taluq 
 with rent fixed by Collector in 
 perpetuity, 74. 
 
 the amount to be assessed was 
 
 nisf, 74. 
 if grant was between 1771 and ist 
 
 December 1790, the full jumma 
 
 was assessable, 74. 
 Grants of land not exceeding ten 
 
 bighas. 
 such land not to be subjected to 
 
 the paj'ment of revenue if sanad 
 
 bore date between Diwani and 
 
 1771, 75- 
 
 lands held under grants subse- 
 quent to these dates, assessable 
 how, 75. 
 in the absence of grants, bona fide 
 
 possession could be relied on as 
 
 evidence of title, 75. 
 
 sec. 3 Reg. XIV. of 1825 was 
 held applicable, 75. 
 
 NON-OCCUPANCY RAIYAT— 
 
 who is, 3.^2, 343. 
 
 incidents of the right of, 343, 344. 
 
 heritability, 344. 
 
 transferability, 344, 345. 
 
 ejectment of, 345 — 348. 
 
 right of subletting by, how far affect- 
 ed by sec. 178 of Bengal Tenancy 
 Act, 345. 
 
 right of, how far a protected inter- 
 est, 345, 346. 
 
 surrender by, 346. 
 
 ejectment of, for non-payment of 
 rent, 346. 
 
 ejectment of, on expiration of term 
 of lease, 346. 
 
 previous notice of six months to 
 eject on this ground necessary, 
 346. 
 
 A (6) 
 
 NON-OCCUPANCY RAIYAT 
 
 Continued. 
 
 limitation in suit for ejectment on 
 expiration of lease, 347. 
 
 liable to ejectment on refusal to pay 
 fair and equitable rent, 347. 
 
 in suits for enhancement of rent 
 of, the court is to determine 
 whether grounds for enhancement 
 exist and whether they are such 
 as to justify the enhancement, 
 347, 348, 382. 
 
 enhancement of rent of, 382. 
 
 rent settled by Revenue-officer 
 not to be varied within five years, 
 382. 
 
 NON-REGULATION PROV- 
 INCES— 
 
 Act VIII. (B. C.) of 1869 not 
 applicable to, 284. 
 
 NOTICE— 
 
 was necessary for enhancement of 
 rent of dependent taluqs, 135. 
 
 requisites of such notice, 136. 
 
 of ejectment for breach of covenant, 
 181. 
 
 to quit under Bengal Tenancy and 
 Transfer of Property Acts, 238, 
 
 239. 
 
 how to be served, 239. 
 must be proper, 239. 
 presumption as to due service of, 
 sent through the post office, 239. 
 six monihs' notice, 240. 
 suit not sufficient notice, 240, 241. 
 form of, 241. 
 of transfer of occupancy-right, 300, 
 
 341- 
 
 due service of notice of transfer on 
 landlord operates as registration 
 of transferee's name in land- 
 lord's office, 342, 343. 
 of enhancement formerly necessary 
 
 but not under the Bengal Tenancy 
 
 Act, 373, 374- 
 
 NOTIFICATIONS— 
 
 of sale for arrears of revenue, 106, 
 107. 
 
 NUCKSAN LAND- 
 
 See p. 317. 
 
 OCCUPANCY-RAIYAT— 
 
 person holding under raiyat at fix- 
 ed rate cannot acquire right of 
 occupancy, 288.
 
 450 
 
 GENERAL INDEX. 
 
 OCCUPANCY RAIYAT— 
 
 Continued. 
 
 statutory right created hy Act X, 
 297, 298. 
 
 distinction between klrndkast and 
 paikast no longer observed, 297. 
 
 under the Bengal Tenancy Act 
 settled raiyat has enlarged means 
 of acquisition of right, 298. 
 
 but right curtailed in case of chur 
 and utbandi lands, 298. 
 
 Incidents of right of occupancy. 
 
 it is heritable, 298. 
 
 but on default of heirs right is ex- 
 tinguished crown does not suc- 
 ceed, 298. 
 
 not bequeathable by will except 
 under custom or usage, 299. 
 
 nor transferable except under cus- 
 tom, 299. 
 
 transferee acquires no right, 299, 
 
 339, 340- 
 
 he is liable to be evicted as tres- 
 passer, 299, 339, 340, 
 
 when raij-at to be considered to 
 have abandoned the land, 299, 
 
 339, 340-. 
 
 onus on raiyat to prove transfer- 
 ability, 300. 
 
 transfer must be effected by means 
 prescribed by the Bengal Tenan- 
 cy Act, 300. 
 
 when landlord not bound to recog- 
 nise transfer, 300, 341, 342. 
 
 unless notice of transfer given 
 transferor and transferee 
 jointly liable, 300. 
 
 mode of using land, 300. 
 
 misuse of land, 301. 
 
 remedies of landlord for misuse, 301. 
 
 may make improvements, 301. 
 
 right to cut down trees, 301, 302. 
 
 any contract against this right in- 
 valid, 302, 
 
 hound to pay fair and equitable 
 rent, 302. 
 
 rent previously paid presiuned to 
 be fair, 302. 
 
 not liable ordinarily to be ejected, 
 302. 
 
 grounds of ejectment, 302 — 304. 
 
 safe-guards [irovided, 304. 
 
 liinitations in suits for ejectment 
 for breach of covenant, 304. 
 
 protected on sale for arrears of 
 Govt, revenue, 304. 
 
 also on sale utider putni law, 305 
 
 occupancy holding is a prntccied 
 interest, 304, 305. 
 
 OCCUPANCY-RAIYAT— 
 
 Continued. 
 right to sublet, 305, 306. 
 contract taking away such right 
 
 invalid, 306. 
 has right to surrender, 307. 
 contract against siurender invalid, 
 
 307. 
 
 if bound b)' lease for fixed period 
 cannot surrender before expiry 
 of period, 307. 
 
 no surrender of part or share, 307. 
 
 abandonment may amount to sur- 
 render, 307. 
 
 Who may acquire occupancy right. 
 
 occupancy right acquired by raiy- 
 at alone, 308. 
 
 under-raiyat cannot acquire it, 
 
 307, 309. 
 settled raiyats acquire it, 309. 
 tenants holding under bhagdari or 
 
 bhaoli system may acquire it, 
 
 310, 311- 
 indigo concern may acquire it, 31 1, 
 landlord holding land in the benami 
 
 of another cannot acquire, 312. 
 co-sharer cannot acquire, 312, 313. 
 co-sharer purchasing occupancy 
 
 right loses it but the holding does 
 
 not cease to exist, 313 note, 
 ijaradar or farmer cannot acquire, 
 
 313. 
 on raiyat becoming a farmer of 
 
 rent acquisition of the right kept 
 
 in abeyance, 313, 3i4- 
 but if right already perfected would 
 
 not be lost, 314. 
 trespasser cannot acquire, 314. 
 person claiming lakhiraj title can 
 
 not acquire, 314. 
 permissive possession cannot confer 
 
 it, 3«4- 
 possession even under trespasser 
 sufficient for the acquisition, 314, 
 
 3'5- 
 the right is not acquired by virtue 
 
 of any grant but it grows from 
 
 possession as raiyat, 314, 315. 
 In what hind occupancy right can he 
 
 acquired. 
 
 can be acquired only in agricul- 
 tural and horticultural lands, 
 315, 316. 
 
 but not in building land, 316. 
 
 nor in land used for arhats^ ghats, 
 bazars, indigo factories and ma- 
 nufactories, 316. 
 
 m;i\' be acquired in homestead 
 JMiid when, 3ifi, 317.
 
 GENERAL INDEX. 
 
 45» 
 
 OCCUPANCY RAIYAT— 
 
 Continued. 
 how acquired in uthandi lands, 
 
 317, 3.18. 
 cannot in general be acquired in 
 
 fisheries, 318. 
 but may be acquired in a tank 
 
 when, 318. 
 may be acquired in pasture lands, 
 
 318. 
 cannot ordinarily be acquired in 
 
 proprietor's private land, 319, 
 
 330- 
 may be acquired in such land 
 
 when, 323, 327. 
 may be acquired in chur land 
 
 when, 325. 
 How acquired. 
 
 under the old law, 325. 
 
 under the Bengal Tenancy Act, 
 
 325, 326. 
 Pandit Slieo Prakas v. Ram Sahay 
 
 Sing., 326. 
 may be acquired by different leases 
 
 when, 326, 327. 
 contracts against acquisition in- 
 valid, 328. 
 contracts taking away occupancy 
 
 right invalid, 328. 
 contracts providing for ejectment 
 
 ofoccupanc}' raiyat invalid, 328. 
 right of occupancy even if land is 
 
 held partly before and partly 
 
 after the passing of the Rent 
 
 Act, 329. 
 dispossession by landlord does not 
 
 break continuity of possession, 
 
 _329- 
 
 raiyat holding jointly may acquire 
 
 the right, 329, 330. 
 non-payment of rent does not bar 
 
 acquisition of right, 330. 
 noi forfeit the right when acquired, 
 
 331.. 
 
 condition necessary for acquisition 
 of the right, 331. 
 
 his main duty is to pay rent, 331. 
 
 how rate of rent is to be deter- 
 mined, 331. 
 invalid contracts by, 332. 
 
 OCCUPANCY RIGHT— 
 
 See Occupancy Raiyat. 
 
 OCCUPATION— 
 
 creates right both according to 
 Manu and the Roman Jurists, 2. 
 
 may create right in communal prop- 
 erty, 6. 
 
 OFFENCES— 
 
 information of certain offences to 
 be given by zemindars and the 
 native officers of land holders, 124. 
 sec. 154 of Act XLV of 1860,124. 
 sec. 45 of Act X of 1882, 124. 
 
 ONUS PROBANDI— 
 
 See Burden of Proof. 
 
 COSHER— 
 
 defined, 23. 
 
 distinction between oosher and 
 
 khiraj not recognized by Raja 
 
 Todar Mai, 27. 
 
 ORISSA— 
 
 Beng. Act VIII of 1879 repealed in the 
 Regulation Provinces except, 48. 
 
 chap. X of Bengal Tenancy Act 
 extended by notification to, 48. 
 
 although Reg. VII of 1822, IX of 
 1825 and IX of 1833 and Act 
 VIII (B.C.) of 1879 apply the 
 procedure for fresh settlement is 
 that laid down in Chap. X of 
 Bengal Tenancy Act, 52. 
 
 at the time of the Permanent Set- 
 tlement contained only a portion 
 of Hughli and Midnapur, 92, 93. 
 
 Orissa proper conquered from the 
 Mahrattas is subject to tempo- 
 rary settlement, 93. 
 
 Orissa Division, 408, 409. 
 
 Tributary mahals, 409. 
 
 Moghulbundi, 409, 410, 410 note. 
 
 Regulation XII of 1805, 410. 
 
 Rent Acts in force in, 410, 411. 
 
 classification of landed interests, 
 411. 
 
 revenue-paymg estates, 411, 412. 
 
 Mukuddumi tenures, 412. 
 
 Sarbarakari tenures, 412, 413. 
 
 Nankars and Jaigirs, 413, 
 
 ayma and tanki estates, 413. 
 
 thani raiyat, 413, 414. 
 
 pahi raiyat,4l4. 
 
 chadnia raiyats, 414, 415. 
 
 PARTITION— 
 
 zemindar not bound to apportion 
 rent on division of tenure, 165. 
 
 of taluqs by civil courts, 165. 
 
 of tenure and apportionment of rent 
 do not affect uniformity of rent, 
 
 178, 179- 
 of permanent tenures by civil 
 court does not bind the land- 
 lord, 203.
 
 452 
 
 GENERAL INDEX. 
 
 PARTITION— Cw//;/«^rt'. 
 
 but on partition amongst landlords 
 the tenure is split up and con- 
 verted into a number of separate 
 tenures and such partition is 
 binding on tenants, 203. 
 
 See Partition of Estates. 
 
 PARTITION OF ESTATES— 
 
 revenue-free lands not partible 
 under the Act but by civil court, 
 82. 
 each share of estate on partition 
 
 becomes an estate, 115. 
 actual partition to be made by Col- 
 lector, 115. 
 civil courts can only pass decree 
 for partition after ascertainment 
 of share, 115. 
 private partition not binding on 
 Govt, unless special sanction of 
 Collector is obtained, 115. 
 but binding on the parties, 115. 
 and Collector cannot disturb pri- 
 vate partition at the instance of 
 one of the parties, 115. 
 in what cases of private partition 
 Collector's jurisdiction is ousted 
 and where not, 115, 116. 
 presumption of private partition 
 arises from long possession, 116. 
 how such presumption is rebutted, 
 
 116. 
 holder of life-estate not entitled to 
 
 partition, 116, 
 
 but a Hindu widow is entitled, 116. 
 
 powers of Collector and civil court 
 
 in case of partition by Hindu 
 
 widows, 116. 
 
 estates not partible by Collector, 
 
 116. 
 civil court may decree partition 
 when the revenue is below pres- 
 cribed limit though apportion- 
 ment of revenue will not be bind- 
 ing on Collector, 116. 
 jurisdiction of civil court in 
 
 matters relating to, 117. 
 conflict of cases about jurisdiction, 
 
 117, 118. 
 
 remarks on the jurisdiction of 
 Collectors in partition of estates, 
 
 118, 119. 
 
 procedure as to partition of estates, 
 120. 
 
 PASTURES— 
 
 according to Manu and Yajna- 
 valkya, were common property 
 
 P/KSTURES—Confinued. 
 
 in ancient village community, 17, 
 
 404, 405. 
 occupancy right may be acquired 
 
 in, 318. 
 one of several descriptions of land, 
 
 357. 
 suit for recovery of rent of, 405. 
 
 PERMANENT SETTLEMENT 
 
 no resumption suit to lie if invalid 
 lakhiraj formed part of a perma- 
 nently settled estate and held 
 rent free from the time of the, 78, 
 
 discussion as to the propriety of, 87, 
 
 88. 
 what zemindars were said to have 
 
 been before, 87. 
 Pitt's India Act, 88. 
 the necessity of the measure, 88, 
 
 89. 
 zemindars w-ere the only class to 
 whom Govt, could then look for 
 punctual realization of State 
 dues, 89. 
 errors of the, 90, 91. 
 made with haste and based on in- 
 sufficient materials, 91, 92. 
 caused great ruin and effected a 
 revolution in the constitution and 
 ownership of estates, 91. 
 opinion of financiers on the, 92, 
 Regulation I of 1793, 92, 93- 
 Orissa at the time of the, contained 
 only a portion of Hughli and 
 Midnapur, 92, 93. 
 Regulation VIII of 1793, 93, 94. 
 contains principles of settlement 
 and mode of assessment, 93, 
 94. 
 also rules as to sayer compensa- 
 tion, 95. 
 and rules as to zemindari private 
 
 chakeran lands, 95. 
 rules of assessment laid down in, 
 were the basis of permanent 
 settlement and continued in 
 force till 1822 when they were 
 modified, 95. 
 continued to be made until about 
 
 the year 1871, 95. 
 extends over what districts, 95. 
 changes have been made now and 
 then in the rules of settlement 
 since 1793, 95, 96. 
 revenue formerly payable in Sicca 
 rupees was converted into com- 
 pany's rupees when, 96.
 
 GENERAL INDEX. 
 
 453 
 
 PERMANENT SETTLEMENT 
 
 Continued. 
 
 this caused an apparent but not 
 
 actual alteration of the amount of 
 
 revenue, 96. 
 
 dawk cess payable by zemindars, 96 
 
 it is an additional impost to the 
 
 revenue, 97. 
 not recoverable from under-ten- 
 ants and raiyats, 97. 
 
 road and public works cesses are 
 payable by all persons interested 
 in land, 97. 
 
 this is also an addition to rev- 
 enue, 98. 
 Cess Act of 1880, 98. 
 they are personal debts of pro- 
 prietors, 98. 
 recoverable by certificate proce- 
 dure, 98. 
 how assessed, 98. 
 the share to be paid by each 
 class interested in land, 98. 
 how and when payable, 99. 
 definition of, 139. 
 
 PERMANENT TENURE— 
 
 See Tenure ; 
 Taluq. 
 
 POSSESSION— 
 
 as a factor in the acquisition of 
 
 right in land, 2, 18. 
 under-tenure holder pa3'ing arrears 
 
 to save putni from sale is entitled 
 
 to, till satisfaction, 153, 154. 
 permissive possession does not 
 
 operate to create occupancj' right, 
 
 314- 
 See Adverse Possession. 
 
 PRESCRIPTIVE RIGHT— 
 
 See Adverse Possession. 
 
 PRESIDENCY SMALL CAUSE 
 COURT— 
 
 its jurisdiction in suits between land- 
 lord and tenant in Calcutta, 36, 
 37. 
 
 PRESUMPTION— 
 
 under act III (B. C.) 1878 in khas 
 mahals there is no presumption 
 that rent previously paid was fair 
 and equitable, 47. 
 
 when land exceeding one hundred 
 bighas was admittedly held by 
 lakhirajdar the presumption was 
 
 PRESUMPTION— Co«//««tf(/. 
 
 that it was held under one grant 
 and that it was resumable by 
 Govt. 73. 
 
 how this presumption is rebutted, 73. 
 
 of private partition arises from long 
 possession, 116. 
 
 how it is rebutted, 116. 
 
 in fa\'our of rent of taluq not being 
 enhanceable as soon as it is 
 proved that taluq exists from 
 before the Decennial Settlement, 
 
 133. 
 
 no presumption of fixity of rent 
 where taluq is situated within 
 temporarily settled area, 1 39. 
 
 in suit to set aside putni sale on the 
 ground of non-observance of 
 formalities there is no presump- 
 tion in favour of zemindar of due 
 service of notice, 148. 
 
 mere declaration in decree as to the 
 right of enhancement does not do 
 away with, under sec. 15 of Act 
 X or sec. 50 Bengal Tenancy 
 Act, 165. 
 
 of permanency of tenure I when, 174. 
 
 of fixity of rent when, 175, 176, 287, 
 288, 291. 
 
 proof necessary for such, 177, 178. 
 
 how rebutted, 178, 292, 293. 
 
 not affected by abatement or in- 
 crease when, 178, 179. 
 
 in favour of delivery of letters pro- 
 perly addressed and posted, 230. 
 
 of person holding more than 100 
 bighas being tenureholder, 287. 
 
 of fixity of rent of raiyat when, 
 287, 288, 291. 
 
 how rebutted 292, 293. 
 
 rent previously paid by occupancy 
 raiyat to be presumed fair and 
 equitable, 302, 354. 
 
 and also to be presumed to be the 
 rent payable, 332. 
 
 PRIMOGENITURE— 
 
 law of principalities, 89. 
 
 PRIVATE PARTITION— 
 
 not binding on Govt, unless special 
 sanction of Collector is obtained, 
 115. 
 
 presumption of, arises from long 
 possession, 116. 
 
 PROPERTY IN LAND— 
 
 archaic notions in India about, 2. 
 arises from first occupation, 2 — 4.
 
 454 
 
 GENERAL INDEX. 
 
 PROPERTY IN LAND— 
 
 Continued . 
 
 according to Manu, 2. 
 
 according to later Roman jurists, 2. 
 
 but modern jurists hold this opi- 
 nion to be without foundation, 
 2. 
 
 illustration in the Digest however 
 the same as in Manu, 2. 
 
 Mahomedan jurists except Abu 
 Haneefa are of the same 
 opinion, 2, 3. 
 
 Blackstone's theory, 3. 
 
 Sir Henry Main's view of the 
 origin of proprietary right, 3. 
 
 Von Savigny's view, 3. 
 
 this notion firmly established in 
 India at the time of Bharavi, 4. 
 
 Indian sages and law-givers made 
 no distinction about mode of 
 acquiring right in immoveable 
 and moveable property, 2, 4, 5. 
 
 right of the first occupant recog- 
 nised by Calcutta and Madras 
 High Courts, 6, 7. 
 earth res communes according to 
 
 ancient Indian authorities, 4. 
 they made no distinction between 
 res nullius and res communes^ 4. 
 
 Jaimini, 4, 5. 
 
 Savara, 5. 
 
 Sayana's commentary, 5. 
 
 Res nullius and res communes ac- 
 cording to Roman jurists, 5, 6. 
 amongst non-Aryan races in India 
 
 the idea prevails that land be- 
 longs to the people king only 
 
 entitled to rent, 6. 
 ownership of the subject to land 
 
 recognised by early Ilindu kings, 
 
 6. 
 sovereign entitled only to a share 
 
 of the produce, 7. 
 he not proprietor of soil, 7. 
 
 Rig Veda, tenth Mandal, 8. 
 
 Narada's comment on the text of 
 Rig Veda, 8. 
 
 Manu and other texts, 8, 9. 
 
 Baudhayana, 9. 
 
 Parasara, 9. 
 
 authorities however not unanim- 
 ous about the extent of king's 
 share, 10, 
 
 general opinion that king's share 
 is the sixth, 10. 
 
 but smaller share — eighth, tenth 
 and even twelfth — considered 
 proper by some, 10. 
 
 Jaimini's Mimansa Aphorism, 10. 
 
 PROPERTY IN LAND— 
 
 Continued. 
 Savara's and Sayana's comment- 
 aries thereon, 10. 
 
 he was simply the protector of the 
 people, 10. 
 
 the word king is used as synony- 
 mous with the expression " appro- 
 priator of the sixth share", 11. 
 
 Srikrisna Tarkalankar says — king 
 only entitled to taxes, II. 
 
 Mahomedans did not interfere with 
 Brahamanical ideas about fiscal 
 system, 11. 
 
 amongst ancient Hindus there was 
 no communal idea or idea of 
 common or joint ownership among 
 the members of any village com- 
 munity, 15, 16. 
 
 except in certain common property, 
 16. 
 
 grazing ground was and agricultur- 
 al land was not common property 
 of the community, 17, 18. 
 
 acquisition of right by adverse 
 possession in ancient India, 18. 
 
 estoppel by conduct in Hindu law, 
 19. 
 
 period necessary amongst Aryans 
 to create title by adverse possess- 
 ion, 20, 21. 
 
 extinguishment of right by limita- 
 tion amongst Aryans, 21. 
 
 non alienable in ancient India at 
 first but heritable, 21. 
 
 right of alienation was afterwards 
 slowly and partially recognised, 
 21, 22. 
 
 Jimutavahana fully recognised right 
 of alienation, 22. 
 
 in Mahomedan lime imposition of 
 khiraj did not take away pro- 
 prietary right of cultivator, 24. 
 
 in Mahomedan time the sovereign 
 became entitled only to a share 
 of the produce, 24. 
 
 Flnglish notions as to, 30. 
 
 how came to be vested in the zemin- 
 dars, 30. 
 
 observations of the Privy Council 
 as to, in respect of holding in 
 nihi Panchannagram in the 24- 
 pcrgimahs, 38, 39. 
 
 PROPRIETOR— 
 
 of estates had right to resume and 
 assess lands granted revenue-free 
 posterior to 1st Dccemlier 1790, 
 72.
 
 GENERAL INDEX. 
 
 455 
 
 PROPRIETOR— Coniinued. 
 
 even if putni or other lease be 
 
 granted, 72. 
 See Proprietor's Private Land. 
 
 PROPRIETORS PRIVATE 
 LAND — 
 
 what is, 319. 
 
 right of occupancy cannot ordinari- 
 ly be acquired in, 319, 330. 
 
 waste lands not to be considered as, 
 320. 
 
 land abandoned by raiyat is not, 321. 
 
 tenant right in, 321, 322. 
 
 right of occupancy may be acquired 
 when, 313. 
 
 determination of raiyati or non- 
 raiyati land a question of diffi- 
 culty, 323. 
 
 onus on landlord that land is pri- 
 vate, 3:^3. 
 
 presumption is that land is pri- 
 vate, 323. 
 
 rules for the determination of, 324. 
 
 recognition by village usage is 
 good evidence of land being, 324. 
 
 includes private lands belonging 
 to tenure holders, 324. 
 
 PROTECTED INTEREST— 
 
 at putni sale, 156, 157. 
 
 at sale for arrears of rent, 198, 199. 
 
 interests of raiyats at fixed rates are, 
 
 288. 
 occupancy holdings are, 304, 305. 
 at revenue sale, 304, 388, 389. 
 non-occupancy holdings how far 
 
 are, 345, 346. 
 
 PUBLIC DEMANDS RECOV- 
 ERY ACT- 
 
 Govt. dues from khas mahals realiz- 
 able by certificate procedure, 56. 
 
 some provisions of the act, 56. 
 
 remarks on certificate procedure, 57. 
 
 law amended since, 57. 
 
 applicable to the realization of 
 dawk cess from zemindars, 96, 97. 
 
 also to the realization of road and 
 public works cesses, 98. 
 
 PUBLIC DOCUMENTS— 
 
 whether chittas, jummabandis and 
 maps prepared by officers of Govt, 
 under the Settlement Regulations 
 are public documents, 45, 46. 
 
 PUBLIC WORKS CESS 
 
 See Cess. 
 
 PUTNIDARS— 
 
 are entitled to resume and assess 
 invalid lakhiraj, 72. 
 
 proprietor of estate entitled to res- 
 ume and assess notwithstanding 
 the grant of putni leases, 72. 
 
 when entitled to abatement, 184. 
 
 Cee Putni taluqs ; 
 Putni Sale. 
 
 PUTNI SALE— 
 
 law ol, noi applicable to permanent 
 tenures created by holders of 
 revenue-free lands, 83. 
 
 the zemindar may resort to the or- 
 dinary procedure for sale for 
 arrears, 144. 
 
 the effect of such sale is the same 
 regardingavoidance of incumbran- 
 ces as sale under Reg. VIII, 144. 
 
 summarj' sale for arrears of rent 
 through the agency of the Collec- 
 tor the chief peculiarity of putni 
 taluqs, 145. 
 
 reference to Bengali months in- 
 dicates that the Reg. was intend- 
 ed for Bengal only, 145. 
 
 not known in Behar, 145. 
 
 it is common where Maghee and 
 Mulki eras prevail, 145. 
 
 Shashmahi sale, 145. 
 
 Dwazdomahi sale, 145. 
 
 who may apply for sale and who 
 may not, 145, 146. 
 
 notices of sale, 146, 148. 
 
 responsibility of zemindar for pub- 
 lication of, 148. 
 attestation of notice on land of de- 
 faulter by substantial persons, 
 147, 148. 
 
 onus of proving due publication on 
 zemindar and he has to prove 
 due observance of formalities, 148. 
 
 no presimiption of due service in 
 favour of zemindar, 148. 
 
 in suit to contest sale it is not in- 
 cumbent on plaintiff to set out 
 distinctly grounds impeaching 
 sale, 148. 
 
 special notice for shashmahi sale — 
 what statement it should contain, 
 149. 
 
 consequence of omission of such 
 statements, 149. 
 
 dates of sale, 149. 
 
 Collector to hold the sale, 149, 15a. 
 
 procedure at the sale, 150. 
 
 who is entitled to bid and who is 
 not, 151.
 
 456 
 
 GENERAL INDEX. 
 
 PUTNI SALE— Co)!/!nueJ. 
 
 sale void if no arrears, 151. 
 
 payment of purchase-money by pur- 
 chaser, 151. 
 
 Commissioner may set aside when, 
 151, 152. 
 
 confirmation of sale, 152. 
 
 limitation in suit to set aside, 152. 
 
 how sale may be set aside, 152. 
 
 who may sue to set aside sale, 
 
 who are necessary parties to the 
 suit, 153- 
 
 who are to pay costs and damages if 
 sale is set aside, 153. 
 
 imder-tenure holders protecting put- 
 ni from sale entitled to be re- 
 imbursed, 153. 
 
 when the amount is a charge on the 
 
 taluq, 153- . , , 
 
 tinder-tenureholder entitled to pos- 
 session, 153. 
 
 under-tenureholder may sue for the 
 
 money, 154. 
 limitations in suits for arrears of 
 
 putni rent when sale is set aside, 
 
 154- 
 
 right of purchaser to avoid incum- 
 brance, 154, 155. 
 
 onus on purchaser to show when in- 
 cumbrance was created, 156. 
 
 as soon ashe makes prhna-facie case 
 onus is shifted, 156. 
 
 how far the law of merger applies 
 when zeniindar purchases putni. 
 156. 
 
 what rights are protected notwith- 
 standing sale, 156, 157. 
 
 distribution of surplus sale pro- 
 ceeds on, 157. 
 
 compensation to subordinate tenure- 
 holders on sale, 157. 
 
 surplus sale proceeds, 157, 158. 
 
 arrears for the period antecedent to 
 sale, 158. 
 
 registration of purchaser's name, 
 
 159, 160. 
 does not avoid occupancy right, 
 
 305- 
 See Putni Taluqs. 
 
 PUTNI TALUQ- 
 
 meaiiing of, 142, 143. 
 
 originated in the estates of the 
 
 Maharaja of Burdwan, 142, 143. 
 general characteristics of the tenure 
 
 before Reg. VIII of 1 8 19, 1 43. 
 Regulation VIII of 18 19. 
 
 made the taluqs heritable trans- 
 
 PUTNI TALUQ— Coniifiued. 
 
 ferable and capable of being 
 sublet on exactly similar terms, 
 
 143, 144- 
 not modified by the Rent Acts, 
 
 144- „ . 
 
 in matters in which the Reg. is 
 silent the Rent Acts furnish 
 rules of substantive law and 
 procedure, 144. 
 the zemindar may resort to the 
 ordinary procedure for sale for 
 arrears, 144. 
 the effect of such sale the same re- 
 garding avoidance of incumbran- 
 ces, 144. 
 registration of, under Act XI, 161. 
 effect of common and special reg- 
 istry of, 161. 
 See Putnidars ; 
 Putni Sale. 
 
 RAIYAT— 
 
 not bound to pay dawk cess, 97. 
 
 but bound to pay road and public 
 work cesses, 97. 
 
 the share to be paid by, 98 99. 
 
 Marquis Cornwallis on the rights of, 
 275, 276. 
 
 Sir John Shore urged the necessity 
 of some interposition between 
 zemindar and raiyat, 276, 277. 
 
 Government reserved the power to 
 legislate for, 277, 278. 
 
 Regulation VIII of 1793 imposed 
 restrictions on the levying of ille- 
 gal cess, 278. 
 
 also provided for the enforcement 
 of bona fide leases, 278. 
 
 these pottas to be cancelled in what 
 cases, 278. 
 
 but beyond these no provision made 
 to regulate relation between ze- 
 mindar and raiyat, 278. 
 
 English theory of rent introduced 
 in India, 278. 
 
 and accepted as correct in two cases, 
 280. 
 
 Bengal Regulations speak of khod- 
 kast and paikast, 280. 
 
 distinction between khodkast and 
 paikast raiyats 281 — 283. 
 
 the khodkast raiyat who is, 281, 282. 
 
 the paikast raiyat who is, 282, 283. 
 
 khodkast raiyat protected from 
 eviction under the earlier sale- 
 law, 283. 
 
 but paikast raiyat not protected, 
 until Act X, 283.
 
 GENERAL INDEX. 
 
 457 
 
 RM"^ /kT— Continued. 
 
 distinction practically abolished by 
 Act X, 283. 
 
 Act X of 1859 classified agricultural 
 population into three classes, 284. 
 
 Act \nil (B. C.) of 1869, 284. 
 
 the Bengal Tenancy Act made ma- 
 terial alterations in the law relat- 
 ing to non-occupancy raiyats, 
 284, 285. 
 
 judicial decisions as to the meaning 
 of the word, 285, 286. 
 
 defined in the Bengal Tenancy Act, 
 286. 
 
 indigo planter or tea planter is, 287. 
 
 need not cultivate land himself, 
 306, 307. 
 
 does not become middleman by 
 erecting shops on the land and 
 receiving profit from shop- 
 keepers, 307. 
 
 alone to acquire occupancy right, 
 308, 
 
 settled raiyat acquires the right in 
 all lands held by him, 309. 
 
 idea of settled raiyat owes origin 
 to that of khodkast raiyat, 309. 
 
 residence in village essentially ne- 
 cessary to give status of khod- 
 kast raiyat, 309, 
 
 settled raiyat a creature of the legis- 
 lature, 309. 
 
 how the right is acquired, 309, 310. 
 bhagdari raiyats may acquire right 
 of occupancy, 310. 
 
 no difference between rent in kind 
 and rent in specie in acquisition 
 of occupancy right, 311. 
 
 different classes of raiyats in Orissa, 
 413—415- 
 
 RAIYATS (at fixed rates) — 
 presumption from holdingat uniform 
 
 rate for 20 years, 287, 288, 291. 
 interests of, are protected interests, 
 
 288. 
 no ejectment except on breach of 
 
 an express covenant, 288. 
 tenants holding under, cannot 
 
 acquire occupancy right, 288. 
 ejectment of, 288, 
 includes those who pay rent in kind, 
 
 289, 290, 
 what changes in the rent cannot 
 
 take away status of, 290, 291. 
 proof of payment at uniform rate 
 
 must be strict, 291, 292. 
 what alteration of rent does not 
 
 affect status, 292. 
 
 A (7) 
 
 RAIYATS (at fixed rates) — 
 
 Continued. 
 
 how presumption of holding at uni- 
 form rate may be rebutted, 292. 
 
 unlawful eviction is no break in ten- 
 ancy and does not rebut presump- 
 tion, 292. 
 
 alteration of rent on alteration of 
 area, 292, 293. 
 
 increase by alluvion, 293. 
 
 increase by encroachment on land- 
 lord's land, 293, 294. 
 
 increase by encroachment on stran- 
 ger's land, 295. 
 
 decrease by diluvion, 295. 
 
 decrease by dispossession by title 
 . paramount, 295, 296. 
 
 no abatement if dispossession be by 
 person without title, 295, 296. 
 
 transfer and succession, 296. 
 
 registration of transfers and succes- 
 sions, 296, 
 
 may be created by contract, 296. 
 
 their incidents to be regulated by 
 contract, 296. 
 
 protection afforded to statutory 
 raiyat at fixed rate not available 
 to the fullest extent to, created 
 by contract, 296. 
 
 RECORDED PROPRIETOR — 
 
 assignee of, not his representative 
 under Act XI of 1859, m, 112. 
 entitled to get rent, 336. 
 
 RECORD OF RIGHTS — 
 
 powers and duties of Revenue 
 Officers, 377, 379. 
 
 remarks as to the procedure adopt- 
 ed in making, 379. 
 
 objections as to entries, 380. 
 
 REDUCTION OF RENT— 
 
 See Abatement. 
 
 REDEEMED LANDS— 
 
 are a class of revenue-free lands, 
 
 82. 
 and are subject to the provisions 
 
 of the Registration and Tenancy 
 
 Acts, 82. 
 
 RE-ENTRY — 
 
 effect of condition for, in perma- 
 nent tenures as against purchas- 
 ers at private sales, 183. 
 
 conditions for, cannot defeat the 
 ighw of purchasers at auction, 
 ■■183.
 
 45^ 
 
 GENERAL INDEX. 
 
 R E-E NT R \— Continued. 
 
 effect of conditions for, in assign- 
 ment b}' operation of law, 183. 
 
 right of occupancy under the old 
 law might be acquired by different 
 leases if no express covenant of, 
 326, 327. 
 
 implied covenant for, not sufficient, 
 327- 
 
 REGISTERS — 
 
 under the Land Registration Act, 
 
 copies of, admissible in evidence, 113. 
 
 REGISTRATION — 
 
 of name of auction-purchaser of putni 
 sale in zemindar's sherista, 159, 
 160. 
 
 purchasers at putni sales civil court 
 sales for rent decree or sales by 
 Collector entitled to have their 
 names registered in zemindar's 
 sherista without payment of fee, 
 
 159- 
 
 under Act XI protects what incum- 
 brances at sale for arrears of 
 revenue, 161. 
 
 in cases of transfer or succession 
 liability of holders of the tenures 
 to register the transfer or succes- 
 sion in landlord's office, 188, 189. 
 
 effect of non-registration, 190, 191, 
 
 336. 
 
 what tantamounts to, 191. 
 
 suits to compel, in landlord's office, 
 191, 
 
 death of registered tenant, 191, 192. 
 
 the Bengal Tenancy Act on regis- 
 tration in landlord's office, 192, 193. 
 
 fee payable under the present law 
 for, in landlord's office on trans- 
 fers, 192. 
 
 even on transfers of land paying 
 no rent, a fee of Rs. 2 is payable, 
 192. 
 
 on execution sales, 193. 
 
 penalty for non-registration on 
 succession, 193. 
 
 remarks on the provisions regarding 
 registration in landlord's office, 
 
 193, 194- 
 of transfers of occupancy right, 341. 
 
 REGULATIONS— 
 
 Vil .)f 1792. 
 
 p. 411. 
 XIJX of 1793. 
 
 p. 350. 
 
 REGULATIONS— Co«//««-ffl'. 
 
 L of 1792. 
 
 p. 250. 
 
 I of 1793 (Permanent Settlement). 
 
 pp. 74, 92. 
 
 s. 5, P- 93- 
 
 „ 7, pp. 93. 96- 99- 
 
 „ 8, pp. 249, 251, 257, 277. 
 
 „ 8, cl. I, p. 93. 
 
 „ 8, cl. 3, p. 69. 
 
 „ 8, cl. 4, p. 251. 
 
 „ 8, cl. 5, p. 121. 
 
 „ 9, p. 93- 
 „ 10, p. 93. 
 
 II of 1793 (Powers and duties of 
 Collectors and Hoard of Revenue). 
 Preamble, pp. 30, 91. 
 
 VIII of 1793 (Decennial Settle- 
 ment). 
 
 pp. 71, 73, 74, 93, 95,137,271. 
 s. 4, p. 94. 
 „ 6, p. 132. 
 
 „ 9, P- 95- 
 „ 10, p. 131. 
 „ II, p. 131- 
 „ 13, p. 130. 
 „ 14, P- 130. 
 „ 21, p. 121. 
 „ 36, pp. 69, 251. 
 
 „ 39, p. 323. 
 
 „ 41, pp. 251, 255, 270. 
 
 „ 43, P- 50- 
 
 „ 44 to 47, p. 126. 
 
 „ 46, p. 127. 
 
 „ 48, pp. 133, 134, 140. 
 
 „ 49, pp. 133-135, J40, «oo- 
 
 „ 5», PP- 133-137, 140, 166. 
 
 „ 55, P-278. 
 
 „ 60, p 278, 283. 
 
 X of 1793 (Court of Wards) p. 121. 
 
 XI of 1793 (Succession to estates 
 of Intestate Persons). 
 
 p. 112. 
 XIV of 1793 (Recovery of arrears 
 of Revenue). 
 
 S. 2, p. lOO. 
 
 „ 4, p. 100, 
 „ 13, p. 100. 
 „ 44, p. 100. 
 „ 48, p. 121. 
 XIX of 1793 (Non Badshahi Lakhi- 
 ra] Grant) 
 pp. 67—71, 131. 
 Preamble, pp. 28, 58, 69, 70. 
 s. a, p. 70. 
 „ 2, cl. 3, p. 71. 
 
 „ 3i p. 72. 
 
 ,. 3, cl. 4, p. 75. 
 
 ., 5, P- 74-
 
 GENERAL INDEX. 
 
 459 
 
 REGULATIONS— Continued. 
 
 s. 6, pp. 71, 74. 
 
 „ 7, p. 72. 
 
 ,. 8, cl. 3, p, 73. 
 
 „ 9, P- 74- 
 
 „ 10, pp. 72, 74, 78. 
 
 „ II, P- 74- 
 
 „ II to 34, p. 79. 
 
 ,. 17, p. 75. 
 „ 24, p. 80. 
 
 XXII of 1793 (Police) 
 p. 250 
 
 XXIII of 1793 (Police) 
 p. 250. 
 
 XXXVII of 1793 (Badshahi Lakhi- 
 raj Grant) 
 
 pp. 67, 69, 131, 245. 
 
 Preamble, pp. 28, 58, 69. 
 
 s. 2, p. 70. 
 
 ,. 6, p. 71. 
 
 „ 12, p. 70. 
 
 „ 15, pp. 64, 65. 
 
 „ 16 to 41, p. 79. 
 
 „ 19, p. 80. 
 XLIV of 1793 (Limitation of Term 
 for grant of Leases) 
 
 s. 2, p. 141. 
 
 ,, 5, P- 134- 
 
 ,. 7, p. 134- 
 
 „ 9, p.'388. 
 XLVIII of 1793 (Land Registration) 
 
 P- 113. 
 Ill of 1794 (Recovery of arrears of 
 Revenue) 
 
 p. 100. 
 L of 1795 (Limitation of term for 
 grant of leases by proprietors) 
 
 s. 2, p. 141. 
 
 VI of 1797 (Appropriation of 
 
 Police funds) 
 
 XV of 1797 (Expenses of keeping 
 Land Revenue Records) 
 s. 2, p. 113. 
 
 VII of 1799 (Recovery of arrears 
 
 of Rent and Revenue) 
 
 P- 195- 
 s. 15, p. 189. 
 „ 23, p. 100, 
 „ 30, p. 100. 
 
 VIII of 1800 (Perganah Registers) 
 p. 80. 
 
 s. 19, p. 80. 
 
 „ 21, p. 113. 
 X of 1800 (Succession to Landed 
 Estates) 
 
 p. 112. 
 I of 1 801 (Realization of revenue) 
 
 p. 100. 
 
 REGULATIONS— Co«/i«K^^. 
 
 s. 14, p. 130. 
 XLVII of 1803 (Powers of Land- 
 holders to grant Leases) 
 s. 2, p. 141. 
 „ 5. P- 142. 
 
 I of 1804 (Invalid Jaigirs and Pen- 
 sions) 
 s. 24, p. 133. 
 
 XII of 1805 (Settlement in Kattack) 
 s. 4 to 7, p. 410. 
 ., 33, p. 410. 
 „ 34, P- 410. 
 „ 35, P- 410. 
 „ 36, p. 409. 
 „ 37, p. 409- 
 
 XI of 1806 (Russud) 
 p. 123. 
 
 Xyil of 1806 (Interest and Condi- 
 tional sales 
 p. 190. 
 
 VI of _ 1810 (Responsibility of 
 Zemindars to give information of 
 crimes) 
 p. 124. 
 
 I of i8ii (Punishment for house- 
 breaking) 
 s. 10, p. 124. 
 
 Ill of 1812 (Responsibility of 
 Zemindars for Crimes on 
 their estates) 
 s, 4, p 124. 
 
 V of 18 1 2 (Realization of Revenue) 
 pp. 100, 373. 
 s. 2, p. 142. 
 
 „ 9, P-135. 
 „ 26, p. 128. 
 „ 28, p. lOI. 
 XVIII of 1812 (Limitation of time 
 
 for leases) 
 s. 2, p. 142. 
 VIII of 1814 (Responsibility of 
 
 landholders to give notice 
 
 of Crimes) 
 p. 124. 
 
 XVIII of 1 8 14 (Sale for arrears of 
 Revenue.) 
 
 p. lOI. 
 
 XIX of 1814 (Partition of Estates) 
 pp. 118, 119. 
 
 s. 3, p. 262. 
 „ 4, P- 262, 
 „ 5, p. 262. 
 XXIXofi8i4 (Beerbhoom Ghat 
 wals) 
 p, 262. 
 s. 3, p. 262. 
 „ 4, p. 262. 
 „ 5, P- 262.
 
 460 
 
 GENERAL INDEX. 
 
 REGULATIONS— Co«//««^a'. 
 
 II of 1 8 16 (Re-establishment of the 
 office of Canoongoe) 
 p. 271. 
 
 IX of 1816 (Commissioner of Sun- 
 derbuns) 
 
 P-52- 
 XII of 1817 (Patvvaris) 
 
 p. 271. 
 XX of 1 81 7 (Native Police) 
 
 p. 253- 
 
 s. 21, pp. 251, 252, 257. 
 
 I of 18 19 i-VIodification of Reg. XII 
 
 1817) 
 p. 271. 
 
 II of 1 8 19 (Resumption of unauthor- 
 
 ized Lakhiraj) 
 pp. 53,67, 75, 131, 264. 
 s. 3, PP- 41, 52, 68. 
 „ 30, p. 76. 
 „ 31, P-4I- 
 VIII of 1819 (Putni Taluqs.) 
 pp. 83, 84, 160,219, 252. 
 Preamble, pp. 142, 143. 
 s. 2, p. 142. 
 „ 3, P- »44- 
 „ 5, P- 159- 
 . „ 6, p. 159- 
 „ 8, p. 146. 
 
 „ 8, cl 2, pp. 146, 147, 148. 
 „ 8, cl. 3, pp. 149, 150. 
 
 „ 9, P- 151- 
 
 „ II, PP- 155, 156, 283, 288, 305, 
 
 345- 
 „ 13, P- 153. 
 „ 14, pp. 150, 152, 153. 
 
 „ 15, P- 152. 
 „ 17, P- 157- 
 I of 1820 (Putni Rent) 
 
 p. 144- 
 
 III of 1 821 (Powers of Criminal 
 Officers) 
 
 s. 7, P- 124. 
 
 VI of 1822 (Court of Wards) 
 s. 4, p. 121. 
 
 VII of 1822 (Settlement) 
 
 PP-4i,44, 46, 48-50, 52, 410- 
 Preamble, p. 45. 
 s. 5, p. 126. 
 
 „ 9, p. 45- 
 „ 12, p. 48. 
 
 „ 14, p. 48- 
 XI of 1822 (Government Estates) 
 
 pp. loi, 283. 
 I of 1824 (Land Acquisition) 
 
 P-55. 
 
 s. 10, p. 55. 
 VI of 1825 (Russud to troops) 
 8. 2, p. 124. 
 
 REGULATIONS— Coniinued. 
 
 IX of 1825 (Revenue administra- 
 tion) 
 
 pp. 43,44,49, 52, 67, 126. 
 s. 2, pp. 52, 68. 
 
 XI of 1825 (Alluvion and Dilu- 
 vion) 
 
 PP- 50, 325- 
 
 s- 4, pp. 50, 293, 295. 
 
 XIII of i8i25 (Canoongoe and other 
 
 Lakhiraj lands) 
 p. 271. 
 
 XIV or 1825 (Lakhiraj Grants) 
 p. 67. 
 
 s. 3, pp. 68, 70, 7^. 
 XVIII of 1825 (Annexation of 
 Chinsurah to Zilla Hooghly) 
 
 P- 39- ^ , u 
 
 V of 1827 (Estates under attach- 
 ment to Zilla Courts) 
 p. 128. 
 
 III of 1828 (Commissioner of 
 Lakhiraj Resumptions) 
 
 pp. 41, 67, 264. 
 
 s. 13, pp. 52, 53, 68. 
 
 IV of 1828 (Powers of Collectors 
 regarding Settlement) 
 
 p. 46. 
 
 VII of 1832 (Administration of 
 Justice) 
 p. 144. 
 s. 16, p. 145. 
 
 IX of 1833 (Appointment of Dep- 
 uty Collectors) 
 
 PP- 49, 52. 
 s. 2, pp. 46, 47. 
 „ II, p. 126. 
 Ill of 1872 (Santhal Perganah 
 Settlement) 
 s. 18, p. 422. 
 „ 43, pp. 408, 422. 
 
 I of 1886 (Assam Land Revenue 
 Regulation) 
 
 p. 408. 
 
 II of 1886 (Santhal Perganah Rent) 
 pp. 408, 422. 
 
 RELINQUISHMENT— 
 
 See Surrender. 
 
 RENT— 
 
 the amount payable directly to 
 Govt, in khas mahals is, 51. 
 
 but the proprietary interest of Govt. 
 merges in the paramount title 
 and rent is called revenue, 51. 
 
 of dependent tahiq, enhancement of, 
 
 133, 134- 
 of taluqs, enhancement of, 138, 139^
 
 GENERAL INDEX. 
 
 461 
 
 REN T — Conthtued. 
 summary sale of putni taluq for 
 
 arrears of rent, 145-152. 
 may be paid by under-tenure 
 
 holder to protect putni from 
 
 sale, 153. 
 ancient and modern conception of, 
 
 171-173- 
 a first charge, 171, 172. 
 definition of, 172, 173. 
 presumption of uniformity of, 177, 
 
 178. 
 English theory of, introduced in 
 
 India, 278, 279. 
 payable for land encroached by 
 
 tenant, 222, 295. 
 occupancy raiyat bound to pay 
 
 fair and equitable rate, 302. 
 rate previously paid to be presumed 
 
 fair, 302, 332. 
 non-payment of, was ground of 
 
 ejectment of occupancy raiyat, 
 
 303, 331. 
 non-payment of rent does not bar 
 
 acquisition of occupancy right, 
 
 330. 
 evidence of the amount of, 333. 
 instalments of, 333, 334. 
 where payable, 334. 
 arrear of rent defined, 334. 
 interest on arrears, 334. 
 contract to pay a different rate of 
 
 interest, 334, 335. 
 damages in lieu of interest, 335. 
 who is entitled to get rent, 335. 
 registered owner, 336. 
 tenureholder entitled to, though 
 
 name not registered, 336, 
 but name must be registered in 
 
 zemindar's sherista, 336. 
 mode of realizing, 339. 
 in India is never competitive but 
 
 customary, 349. 
 what is customary rent, 349. 
 theories of rent discussed, 350—352. 
 analysis of the idea of customary 
 
 rent, 352. 
 causes of variation from customary 
 
 rent, 352, 353 
 
 RENT-FREE LAND— 
 
 distinction between rent-free and 
 
 revenue-free lands, 77, 78. 
 may be measured by landlord, 372. 
 
 RESUMPTION LAW— 
 
 by the operation of, large quantities 
 of land within the ambit of per- 
 manently settled estates came 
 
 RESUMPTION \-Mi— Continued. 
 
 into the direct possession of 
 
 Govt., 49. 
 study of resumption laws now of 
 
 little practical utility, 67, 68. 
 scope of the, 68. 
 Badshahi grants, 69-71. 
 For details see under this heading. 
 non-Badshahi grants, 71-75. 
 For details see under this heading. 
 jurisdiction in resumption cases, 
 
 75, 76. 
 
 general, 76, 
 
 also when grant made subse- 
 quent to Decennial Settlement, 
 76, 77. 
 who may resume, 77. 
 limitation in resumption cases 
 
 under Acts X & XIV of 1859, 78. 
 limitation under later Acts, 78, 79. 
 Land Registration Act does not deal 
 
 with lands which have not been 
 
 admitted to be revenue-free by 
 
 proceedings under the, 81, 
 REVENUE— 
 formerly payable in sicca rupees 
 
 converted into company's rupees 
 
 when, 96. 
 this caused an apparent but not 
 
 actual alteration in the amount, 
 
 96. 
 dawk cess is additional impost to 
 
 the, 97. 
 is a first charge on land and realiz- 
 able in the first instance by sale of 
 
 land, 99. 
 arrear of revenue defined, 100. 
 table of dates fixed for the payment 
 
 of revenue of all classes of estates 
 
 in all districts, 104. 
 instalments of revenue and the pay- 
 ment thereof, 104, 105. 
 in case of default, defaulter has no 
 
 right to prevent sale by payment 
 
 or tender of payment before sale, 
 
 105. 
 if no arrear sale can be set aside 
 
 by the civil court, 105. 
 effect of payment of, by co-sharer, 
 
 115. 
 unpaid arrears a first charge on sale 
 
 proceeds of estate sold for any 
 
 cause while under the Court of 
 
 Wards, 122. 
 if arrears remain unpaid when estate 
 
 is released by Court of Wards 
 
 Collector may attach, 122. 
 similar provision in case of minors 
 
 when property not under Court
 
 46» 
 
 GENERAL INDEX 
 
 REVENUE— Co«/?>/«^^/. 
 
 of Wards but otherwise exempt 
 from sale, 123. 
 
 abatement of revenue on acquisi- 
 tion of land, 125. 
 
 quasi-contract arising out of pay- 
 ment of, and similar other dues 
 for the protection of the estate, 
 127. 
 
 co-sharer paying, has 
 127, 128. 
 
 sources of, in ancient 
 384. 
 
 no charge, 
 India, 383, 
 
 king 
 
 must not 
 Brahmans 
 
 REVENUE-FREE LANDS— 
 
 policy of the East India Company 
 
 as to, 58. 
 origin and history of, 58. 
 In the Hindu period. 
 Manu ruled that a 
 
 receive any tax from 
 
 learned in the Vedas, 59. 
 Kalidas in Sakuntala, 59. 
 Vishnu, 60. 
 the exemption of pious Brahmans 
 
 is an instance of legal fiction, 60. 
 Vrihaspati, 60. 
 Yajnavalkya, 60. 
 grants made by Hindu kings were 
 
 expressly revenue-free, (61. 
 such grants were called sasanas and 
 
 were required to be on copper 
 
 plates, 61. 
 copper plate grants, 61, 62. 
 grants to Brahmans are called 
 
 hrahmottur in Bengal and hrit in 
 
 Behar, 62, 
 lands dedicated to Gods ■a.xq devattar 
 
 or /nshenpyit, 63. 
 mahatran are revenue-free gifts to 
 
 non-Brahmans, 63. 
 in later days zemindars also made 
 
 revenue-free grants, 63. 
 In the Mahomedan period. 
 Wukfs, 63. 
 Mahomedan religion also favored 
 
 grants for religious and charit- 
 able purposes, 64. 
 Jaigirs, 64. 
 
 For details see under this heading. 
 milk or milik grants, 65. 
 
 are heritable and transferable, 65. 
 altamgha grants, 65. 
 
 are heritable and transferable, 65. 
 ayma lands are heritable and trans- 
 ferable, 65. 
 madadmash lands are heritable and 
 
 transferable, 65. 
 sejmrghal grants, 66. 
 
 REVENUE-FREE LANDS— 
 
 Continued. 
 nazarat grants, 66. 
 character of, 66. 
 succession how regulated, 66. 
 revenue-free grants made between 
 1765 and 1790, 66, 67. 
 after Diwani fresh alienations 
 
 made, 66. 
 the Directors adopted plans to 
 check further alienations, 67. 
 Regulations XIX and XXXVII 
 
 of 1793, 67. 
 Regulation II of 18 19 (Doem 
 
 Quanoon), 67. 
 Regulation XIV of 1825, 67. 
 Regulation III of 1828, 67. 
 study of Resumption laws now of 
 
 little practical utility, 67, 68. 
 Resumption Regulations, 68. 
 revenue-free grants of two classes, 
 
 Badshahi and non-Badshahi, 69. 
 Badshahi grants, 69-71. 
 For details see under this heading. 
 non-Badshahi grants, 7I-75' 
 For details see under this heading, 
 onus prohandi regarding validity and • 
 genuineness of grants was on 
 those who set them up, 70. 
 sec. 3 Reg. XIV of 1825 applica- 
 ble to all classes of lakhiraj land 
 and honafide possession could be 
 relied upon, 75. 
 jurisdiction in Resumption cases, 
 75, 76. 
 
 general, 76. 
 
 also when grants made subse- 
 quent to Decennial Settle- 
 ment, 76, 77. 
 who may resume, 77. 
 distinction between rent-free and 
 
 revenue-free lands, 77, 78. 
 limitation in resumption cases under 
 
 Acts X & XIV of 1859, 78. 
 limitation under later acts, 78, 79. 
 Act IX of 1871. 
 Act XV of 1877. 
 registers of lakhiraj land prior to 
 the Land Registration Act, 79, 
 80. 
 
 what are taidads, 80 
 their evidentiary value, 80. 
 registers of lakhiraj land under 
 the Land Registration Act, 80, 
 81. 
 registration compulsory, 81. 
 revenue-free lands are estates, 81. 
 sec. 60 of Land Registration Act 
 applicable to, 81,
 
 GENERAL INDEX. 
 
 463 
 
 REVENUE FREE LANDS— 
 
 Cuntiniied. 
 
 sees. 78 and 79 Bengal Tenancy Act 
 applicable, 81. 
 
 Land Registration Act does not deal 
 with lands which have not been 
 admitted to be revenue-free b)' 
 proceedings under the Resump- 
 tion laws, 81. 
 
 redeemed lands, 82. 
 - cesses are payable for revenue-free 
 lands, 82. 
 
 but the dawk cess not payable, 82. 
 
 revenue-free lands are partible, her- 
 itable and alienable, 82. 
 
 but not partible under the Estates 
 Partition Act but by civil courts, 
 82. 
 
 subletting common, 83. 
 
 but putni sale law not applicable 
 to permanent tenures created by 
 holders of, 83. 
 
 onus probandi in suits in which ques- 
 tion is whether land is mal or 
 lakhiraj, 83—86. 
 
 finding should be based upon weight 
 of evidence, 86. 
 
 cannot be measured by landlord, 372. 
 
 REVENUE OFFICER— 
 
 estate under attachment or manage- 
 ment by, exempt from sale for 
 arrears of revenue, 123. 
 
 powers and duties of, in proceed- 
 ings for record of rights, 377. 
 
 REVISION— 
 
 by High Court of the order of Dis- 
 trict Judge appointing common 
 manager, 129. 
 
 ROAD CESS — 
 
 See Cess. 
 
 RUSSUD — 
 
 landholder liable to supply provis- 
 ions &c. to the army, 123, 124. 
 Regulation XI of 1806. 
 Regulation VI of 1825. 
 penalty for default, 124. 
 
 SALE CERTIFICATE — 
 
 to be conclusive in favour of pur- 
 chaser, no. 
 
 SALE FOR ARREARS OF 
 RENT — 
 
 special procedure for, 195. 
 simultaneous execution, 195. 
 
 SALE FOR ARREARS OF 
 
 ^^HT—Contunied. 
 
 the decreeholder may proceed against 
 any property of the judgment- 
 debtor, 195, 196. 
 
 sale proclamation, 196, 197. 
 
 non-observance uf formalities of 
 service, 197, 198. 
 
 effect of, on incumbrances, 198. 
 199. 
 
 protected interests, 198, 199. 
 
 procedure to be followed at sale in 
 order to give right to avoid in- 
 cumbrance, 199, 200. 
 
 incumbrances voidable and not 
 void, 200. 
 
 procedure in avoiding incumbran- 
 ces, 200. 
 
 limitation in suit for possession 
 against incumbrancer, 20i. 
 
 remedies of the incumbrancer pay- 
 ing arrears to stop sale, 201. 
 
 protection of lessees of lands for 
 certain purposes, at, 388. 
 
 SALE FOR ARREARS OF 
 REVENUE — 
 
 Government revenue is a first 
 
 charge on land, 99. 
 old sale laws, 99, 100. 
 arrear of revenue defined, 100. 
 Act I of 1845, loi. 
 
 construction put upon sec. 9 of the 
 
 Act by the Privy Council, 102. 
 
 Acts XI of 1859 and VII (B, C.) 
 
 of 1868, 102. 
 hardship under the present law, 102, 
 
 103. 
 tables of dates fixed for the payment 
 
 of re\enue of all classes of estates 
 
 in all districts, 104. 
 instalments of revenue and the pay- 
 ment thereof, 104, 105. 
 in case of default defaulter has no 
 
 right to prevent sale by payment 
 
 or tender of payment before sale, 
 
 105. 
 Collector and- Commissioner can 
 
 however exempt estate from sale, 
 
 when, 105. 
 express order of exemption neces- 
 sary, 105. 
 if no arrears sale can be set aside 
 
 by the civil court, 105. 
 when deposit in the coUectorate is 
 
 sufficient to prevent sale and 
 when not, 106. 
 sale notifications to be issued before 
 
 sale, 106, 107.
 
 4^4 
 
 GENERAL INDEX. 
 
 ir- 
 
 of 
 
 SALE FOR ARREARS 
 REVENUE— Continued. 
 
 how served, 107. 
 consequence of non-service or 
 
 regular service, 107. 
 power of Commissioner in case 
 
 hardship, 107. 
 notice under sec. 5 of Act XI of 
 
 1859, 108. 
 consequence of non-service of this 
 
 notice, 108. 
 name of proprietor need not be 
 
 specified in notice under sec. 6, 
 
 109. 
 suits to set aside sales, 109. 
 jurisdiction of civil courts to set 
 
 aside revenue sales is of a limited 
 
 character, 109. 
 suit to set aside sale must be 
 
 brought within one year, 109. 
 when sale becomes final, 109. 
 grounds for setting aside sale must 
 
 be mentioned in petition of appeal 
 
 to Commissioner, 109. 
 if there is illegality no appeal to 
 
 Commissioner necessary, log. 
 no person who has received pur- 
 chase-money can sue to set aside, 
 
 109. 
 Act VII (B. C.) of 1868, sec. 8, 
 
 109, no. 
 certificate to be conclusive in favor 
 
 of purchaser, no. 
 whether non-compliance of the prov- 
 isions of sec. 6 is a mere ir- 
 regularity or illegality, no. 
 purchaser's title dates from when, 
 
 no. 
 purchaser liable for instalments that 
 
 have fallen due since default of 
 
 kiston which sale has taken place, 
 
 III. 
 provisions against benami purchases, 
 
 III. 
 defaulter may purchase but such 
 
 sale does not avoid incumbrances, 
 
 III. 
 distribution of sale proceeds, in. 
 mortgagee has right to recover his 
 
 money from surplus sale proceeds, 
 
 III. 
 assignee of recorded proprietor not 
 
 representative, in, 112. 
 what procedure if amount be attach- 
 ed, 112. 
 limitations in suits for payment of 
 
 surplus sale proceeds, 112. 
 sale of shares of which separate 
 
 accounts have been opened, 114. 
 
 OF I SALE FOR ARREARS OF 
 
 REVENUE— Co«//««^(/. 
 
 in case of deficient sale proceeds 
 from separated share entire estate 
 to be sold when, 115. 
 
 effect of payment of revenue by 
 sharer, 1 15. 
 
 what estates are exempt from, 120, 
 121. 
 
 estates under attachment or manage- 
 ment by Revenue officers exempt 
 from, 123. 
 
 sec. 17 of Act XI of 1859, 123. 
 
 but the issue of certificate of attach- 
 ment is not attachment by Collect- 
 or, 123. 
 
 of entire estate avoids putni unless 
 registered under act XI, 161 
 
 purchaser of share of estate pur- 
 chases subject to encumbrances, 
 162. 
 
 effect of benami purchase by default- 
 er, 162. 
 
 does not avoid occupancy right, 
 304. 
 
 purchasers at sales for, not entitled 
 to eject tenants from lands where- 
 on dwelling houses have been 
 erected, 388. 
 
 this protection from eviction extends 
 to manufactories or other perma- 
 nent buildings or gardens, planta- 
 tions, canals, places of worship, 
 burning and burial grounds, 388. 
 
 but on a sale free of incumbrance, 
 the tenant though allowed to re- 
 main on the land must pay a fair 
 and equitable rent, 388, 389. 
 
 SALE NOTIFICATIONS — 
 
 of putni taluqs under Reg. VIII, 
 146, 148. 
 
 SALE PROCEEDS — 
 
 of revenue sale how distributed, in, 
 
 112. 
 mortgagee has right to recover his 
 
 money from surplus sale proceeds 
 
 of revenue sale, in. 
 assignee of recorded proprietor not 
 
 entitled to draw, 112. 
 limitation in suits for payment of 
 
 surplus proceeds of revenue sale, 
 
 112. 
 of putni sale how to be distributed, 
 
 157, 158. 
 
 SAL! LAND— 
 
 See p. 357.
 
 GENERAL INDEX. 
 
 465 
 
 SALT LANDS — 
 
 Reg. I of 1824, 55. 
 settled as khas mahal, 56. 
 Government has absolute right to, 
 56. 
 
 SANTHAL PERGANAHS — 
 
 a part only permanently settled, 43. 
 hill tracts not brought under regular 
 
 control till 1855, 43' 
 damani-koh, 43. 
 removed from the operation of the 
 
 general law and held as khas 
 
 mahal except parts permanently 
 
 settled, 43. 
 Regulation III of 1872 provides 
 
 rules of settlement in, 43. 
 law in force in, 422, 423. 
 
 SAYER — 
 
 Regulation VIII of 1793 contains 
 rules as to sayer compensation, 95. 
 
 SCHEDULED DISTRICTS — 
 
 Settlement Regulations in force 
 throughout the territory of the 
 Lieutenant-Governor except, 48. 
 
 the whole of Assam is included in, 
 49. 
 
 tenures in Jalpaiguri, 420, 421. 
 
 raiyati holdings in Jalpaiguri, 421, 
 
 jurisdiction of Collector and Com- 
 missioner, 421. 
 
 enhancement of rent, 421. 
 
 measurement, 422. 
 
 See Chotanagpur ; 
 Orissa. 
 
 SEPARATE ACCOUNT OF 
 REVENUE — 
 
 who is entitled to have opened, 114. 
 
 owners of specific portions also en- 
 titled to have, 114. 
 
 Collector may open, where no 
 objection, 114, 
 
 on objection parties to go to the 
 civil court, 114. 
 
 rules for sale of separated share, 114. 
 
 in case of deficient sale proceeds 
 entire estate to be sold when, 115. 
 
 SERVICE TENURE — 
 
 Reg. VIII of 1793 contains rules as 
 to zemindar's private chakeran 
 lands, 95. 
 
 assignment of land for service, 244. 
 
 conversion of service into rent, 244, 
 
 jaigirs, 245. 
 
 thanadari lands, 245, 246. 
 
 A (8) 
 
 SERVICE TEUijnE— Continued. 
 
 village chowkidars, 246. 
 ghatwals, 246, 247. 
 village chakeran lands, 247, 250. 
 appropriation of thanadari lands by 
 
 Government, 247, 248. 
 or converted into revenue-paying 
 
 estates, 250. 
 Regulation L of 1792, 249. 
 Regulation I of 1793, sec. 8, cl. (4), 
 
 249, 250. 
 other Police Regulations, 250. 
 Regulation VIII of 1793, ss. 41 
 
 and 36, 251. 
 Regulation XX of 181 7, Sec. 21, 
 
 251, 252. 
 relative rights of the State and 
 
 the zemindar with respect to 
 
 chowkidari land settled by Joy 
 
 Kissen Mookerjee v. Collector of 
 
 Burdwan^ 252 — 254. 
 incidents of chowkidari lands, 255, 
 
 256. 
 Village Chowkidari Act, 256. 
 village headmen &c., 270, 271. 
 kanungo minhai land, 271, 272. 
 lands held by village priest or as- 
 trologer and other Brahmans not 
 
 service tenures, 272. 
 such is also the case with barbers 
 
 and other village functionaries, 
 
 272. 
 difference between grant of land 
 
 burdened with service and the 
 
 grant of office remunerated by use 
 
 of land, 272. 
 no occupancy right in service land, 
 
 273- 
 
 service is also rent, 273. 
 BengalTenancy Act makes no change 
 
 in the right of transfer and bequest 
 
 of, 273. 
 incidents of holding office the wages 
 
 of which are paid from profits of 
 
 land, 273, 274. 
 
 SETTLED RAIYAT— 
 
 See Raiyat ; 
 
 Occupancy Raiyat. 
 
 SETTLEMENT— 
 
 in 1848, of noabad lands was for fifty 
 years for lands fully cultivated 
 and for 25 years for other lands, 
 
 42. 
 Regulation III of 1872 provides the 
 rules of settlement in khas mahals, 
 
 43-
 
 4^6 
 
 GENERAL INDEX. 
 
 SETTLE MEUT—CoHlimed. 
 
 old policy of Govt, was to settle lands 
 permanently after assessment under 
 the Settlement Regulations, 51. 
 since 1861 the policy of selling estates 
 
 outright was also adopted, 51. 
 since 1861 temporary settlements only 
 
 allowed, 5 1 
 rules of settlement in temporarily 
 
 settled estates, 51. 
 takes place periodically in khas 
 
 mahals and temporarily settled 
 
 estates, 51. 
 rules of, for Sunderbuns, 53. 
 if grantee of invalid lakhiraj re- 
 fuses settlement the land to be 
 
 held khas and the settlement 
 
 rules to apply, 73. 
 Regulation VIII of I793 contains 
 
 principles of settlement and mode 
 
 of assessment, 93, 94. 
 See Settlement Regulations. 
 
 SETTLEMENT OF RENT— 
 
 duties of Revenue Officers in cadas- 
 tral survey and settlement proceed- 
 ings, 380, 381. 
 
 when and for what period rent 
 settled has operation, 381. 
 
 REGULA- 
 
 SETTLEMENT 
 TIONS— 
 
 settlement and adjustment of rent 
 
 of khas mahals regulated by Reg. 
 
 VII of 1832, 44. 
 Reg. VII of 1822 for ceded and 
 
 conquered provinces in Cuttack 
 
 and Puttaspur, 44. 
 extended to other provinces by Reg. 
 
 IX of 1825, 44. 
 object of Reg. VII of 1822, 44, 45. 
 Settlement Officer to give notice and 
 
 prepare chittas and jummabundis, 
 
 4S- 
 jummabundis final until altered 
 
 after full investigation in a regu- 
 lar suit, 45. 
 
 evidentiary value of chittas, 
 jummabundis and maps prepared 
 by officers of Govt, under the. 
 Settlement Regulations, 45, 46. 
 
 they are not public documents, 45. 
 
 contrary view of Jackson J., 45 
 
 which was accepted in later cases, 46. 
 
 rent assessed on invalid lakhiraj bind- 
 ing unless assessment is set aside, 46, 
 
 principles of assessment, 46, 47. 
 
 later Settlement Acts, 47. 
 jummabundis prepared are final 
 
 SETTLEMENT REGULA- 
 
 TIONS— C()«/?«w^^/. 
 
 after publication unless contest- 
 ed in civil suits within four 
 months, 47. 
 and that enhancement was not in 
 
 accordance with the Act, 47^ 
 no presumption that rent pre- 
 viously paid was fair and equit- 
 able, 47. 
 Beng. Act VIII of 1879 repealed 
 in the Regulation provinces ex- 
 cept Orissa, 48. 
 chap. X of Bengal Tenancy Act ex- 
 tended by notification to Orissa, 
 48, 
 Settlement Regulations m force 
 throughout the territory of the 
 Lieutenant-Governor except the 
 scheduled districts, 48. 
 Regulation VII of 1822 and Regu- 
 lations modifying it not expressly 
 repealed by Bengal Tenancy Act 
 but chap. X of that Act is adopted 
 in khas mahals, 48. 
 assessment under Reg. Vll of 1822 
 
 final in some cases, 48. 
 of the Bengal Code supplemented 
 by rules framed by the Bengal 
 Govt, are in force in Assam, 49. 
 old policy of Govt, was to settle 
 lands permanently after assess- 
 ment under the, 51. 
 rules of settlement in temporarily 
 
 settled estates, 51. 
 Bengal Tenancy Act, Chap. X, and 
 rules framed under sec. 1 89 sub- 
 stituted in the place of the, in 
 Orissa, 52. 
 made applicable to Sunderbuns, 
 when, 52. 
 
 SOVEREIGN— 
 
 entitled only to a share of the 
 produce, but is not the proprietor 
 of the lands, according to the 
 Hindu sages, 7. 
 
 this share is only the price for the 
 protection afforded, 7. 
 
 functions of the, 10. 
 
 meaning of synonyms for, 10, II. 
 
 right of, as regards conquered 
 territories according to Ilindu 
 notions, 11. 
 
 STATUTES— 
 
 13 Geo. Ill c. 63 (Government of 
 India) 
 pp. 30, 34-
 
 GENERAL INDEX. 
 
 467 
 
 STATUTES—Coniinued. 
 
 21 Geo. Ill c. 70 (Government of 
 
 India) 
 
 s. 17, p. 35- 
 24 Geo. Ill c. 25 (Government of 
 
 India) 
 
 p. 88. 
 38 Geo. Ill c. 60 (Land Tax in 
 
 England) 
 
 p. 89. 
 33 Vic c. 3 (Council of India) 
 
 p. 49- 
 44*^45 Vic c. 41 (Conveyancying 
 
 and Law of Property) 
 
 ?• 235- 
 
 SUBLETTING— 
 
 originally unknown amongst 
 
 Aryans, II. 
 but afterwards became common, 12. 
 of revenue-free lands common, 83. 
 
 SUIT— 
 
 between landlord and tenant in 
 Calcutta, jurisdiction of Presi- 
 dency Small Cause Court, 36, 37. 
 
 for resumption, 75-79. 
 
 to set aside revenue sales, 109. 
 
 for payment of surplus proceeds of 
 revenue sale, limitation in, 112. 
 
 for malikana money charged upon 
 immovable property, 126. 
 
 for malikana, limitation in, 126, 127. 
 
 for recovery of malikana tenable, 
 127. 
 
 it is not incumbent on plaintiff to set 
 out distinctly the grounds im- 
 peaching the sale in suits to con- 
 test putni sale, 148. 
 
 to set aside putni sales, 152, 153. 
 
 for ejectment for breach of covenant, 
 procedure in, 182. 
 
 for arrears of rent by one of joint 
 landlords, 202. 
 
 See Limitation. 
 
 SUNA LAND— 
 
 See p. 357. 
 
 SUNDERBUNS- 
 
 in the beginning of the century not 
 included within the permanently 
 settled area of Twenty-four Per- 
 ganas and Jessore, 52. 
 
 Commissioner of Sunderbuns ap- 
 pointed in 18 1 6, 52. 
 
 Resumption and Settlement Regu- 
 lations made applicable to, 52. 
 up to 1825 the attention of Govern- 
 
 SUNDERBUnS—Co»hmed. 
 
 ment directed to encroachments 
 and to taufir lands, 52. 
 in 1828 rules laid down for the 
 determination of the boundaries 
 of the tract formerly declared to 
 be the property of the State, 52. 
 claims of persons in possession of 
 neighbouring cultivated lands 
 left to be determined by rules 
 laid down in Reg. II of 1 8 19, 53. 
 objection to the line of delimita- 
 tion was to be made within three 
 months, 53. 
 the boundary line of Dampier, 53. 
 Captain Hodge's map, 53. 
 patit-abadi taluqs, 53. 
 jungleburi leases granted until 
 
 when, 53. 
 rules made for grants, 53. 
 grants made for 99 years, 53. 
 the sale rules known as fee simple 
 
 rules, 53. 
 revised lease rules, 53, 54. 
 tenures heritable and transferable 
 
 54- 
 Sunderbun grants are temporarily 
 
 settled estates, 54. 
 they are saleable for arrears of 
 revenue, 54. 
 
 SUTANUTY— 
 
 incidents of tenancy in, 34. 
 taluqdari right of the East India 
 
 Company in, transferred to 
 
 Maharaja Nobokrishna of Sobha- 
 
 bazar, 34. 
 holdings in, generally rent-free, 34. 
 rent-paying holdings in, existing 
 
 from before 1778 are permanent 
 
 and rent is nominal, 34. 
 
 SURRENDER— 
 
 permanent tenures cannot be relin- 
 quished, 203. 
 
 of leases does not avoid incum- 
 brances, 241, 242. 
 
 occupancy raiyat may, 307. 
 
 contract against this right invalid, 
 307. 
 
 raiyat bound by lease for fixed term 
 cannot, before expiry of term, 
 307- 
 
 cannot be made of part or share, 
 
 307. 
 abandonment may amount to, 307. 
 
 SURVEY— 
 
 of noabad lands and taluqs in
 
 468 
 
 GENERAL INDEX. 
 
 SURStE'Y— Continued. 
 
 Chittagong between 1841 and 
 1848, 41, 42. 
 duties of Settlement Officers in Cadas- 
 tral Survey proceedings, 380, 381. 
 
 TAIDADS— 
 
 what they are, 80. 
 
 their evidentiary value, 80. 
 
 TALUQS— 
 
 cultivated portions of Sunderbuns 
 formed into permanently settled 
 estates as patitabadi taluqs, 52. 
 
 meaning of the word, 130. 
 
 existing from the date of the Perma- 
 nent Settlement, 137. 
 
 are hereditary and transferable and 
 seldom if ever held on termin- 
 able leases, 138. 
 
 presumption of fixity of rent when 
 arises, 138, 165. 
 
 how rebutted, 138. 
 
 onus of proving nature of tenure 
 its permanency and fixity is on 
 taluqdar, 138. 
 
 rent not enhanceable if not changed 
 from the time of the Permanent 
 Settlement, 138. 
 
 where no Permanent Settlement 
 taluqdar to show that it has not 
 been changed since 1793, 139. 
 
 no presumption of fixity of rent 
 where taluq is situated within the 
 ambit of temporarily settled 
 estate, 139. 
 
 express recognition in the Settle- 
 ment proceedings may lie evi- 
 dence of the right to hold 
 exempt from enhancement, 139. 
 
 alteration of rent on alteration of 
 area, 139, 140, 182. 
 
 changes made l)y the Bengal Tenancy 
 Act, 140, 141. 
 
 notice of enhancement not neces- 
 sary, 141. 
 
 summary of the law of enhance- 
 ment of rent of, 141. 
 
 those created after the Permanent 
 Settlement, 141, 142. 
 
 incidents of, other than putnis, 163, 
 164. 
 
 are partible by civil court, 165. 
 
 zemindars not bound to apportion 
 rent, 165. 
 
 held from Permanent Settlement 
 not liable to ejectment, 165. 
 
 enhancement of rent of, 166, 167. 
 
 See Dependent Taluqs. 
 
 TARAFDARS— 
 
 are original settlers of noabad 
 
 lands in Chittagong, 42. 
 their lands measured between 1841 
 
 and 1848, 42. 
 generally hold lands khas, 42. 
 where there are raiyats resumption 
 
 and settlement do not affect their 
 
 right, 42. 
 
 TEA-PLANTER— 
 
 may be a raiyat, 287. 
 
 TEMPORARY SETTLEMENT 
 
 change in the policy of settlement 
 
 since 1871, 51. 
 rules of settlement in temporarily 
 
 settled estates, 51, 411. 
 takes place periodically, 51. 
 Orissa proper conquered from the 
 
 Mahrattas is subject to, 93. 
 
 TENANTS— 
 
 not bound to pay dawk cess, 97. 
 bound to pay road and public 
 works cesses, 97. 
 
 TENURE-HOLDER— 
 
 road and public works cesses pay- 
 able by, 97. 
 
 the share to be paid by each class 
 interested in land, 98. 
 
 principles under which compensa- 
 tion for land accjuisition to be ap- 
 portioned between proprietor and 
 tenureholder, 203, 204. 
 
 person holding more than loobighas 
 presumed to be, 287- 
 
 TENURES— 
 
 unknown in earlier days amongst 
 Aryans but are of later creation, 
 12, 169. 
 
 causes that led to the creation of, 
 169, 170. 
 
 classification of, 170, 171. 
 
 Permanent tenures. 
 
 permanent mukarrari lease may be 
 granted on any terms mutually 
 agreed on, 180. 
 
 no ejectment from, for non-payment 
 of rent, 180. 
 
 but tenure liable to be sold in exe- 
 cution of a decree for rent, 181. 
 
 contract restricting alienation of, 
 183. 
 
 alteration of rent on alteration of 
 area of, 183, 184.
 
 GENERAL INDEX. 
 
 469 
 
 TE N U RES— Con/ifiued. 
 
 are heritable and transferable, 186, 
 187. 
 
 at fixed rent only, 188. 
 
 registration in landlord's office, 188, 
 194. 
 
 effect of non-registration, 190, 191. 
 
 cannot be relinquished without con- 
 sent of landlord, 203. 
 
 are partible by civil court, 203. 
 
 See Re-entry ; 
 Presumption. 
 
 Non-permane7it tenures. 
 
 not dealt with in legislative enact- 
 ments, 206. 
 
 sources of law regarding, 207. 
 
 Transfer of Property Act how far 
 applicable, 207. 
 
 vernacular names of, 207. 208. 
 
 See Lease. 
 
 THANADARI LANDS— 
 
 thanadais were appointed by the 
 zemindars to maintain peace 
 and had control of the police, 
 246. 
 
 See Service Tenure. 
 
 TICCADAR— 
 
 See Ijaradar ; 
 Lease. 
 
 TRANSFER— 
 
 of lease, 224-226. 
 
 of occupancy right, 299, 300, 339- 
 
 341- 
 notice to be given to landlord in 
 
 case of, 300, 341. 
 of non-occupancy holding, 344. 
 
 TRESPASSER— 
 
 encroachment does not make tenant 
 a trespasser to the encroached 
 land, 294. 
 
 cannot acquire occupancy right, 
 
 314- 
 
 TWENTY-FOUR PERGANAHS. 
 
 See Khas Mahals. 
 
 UDBASTU LAND. 
 
 See p. 317. 
 
 UNDER-RAIYAT— 
 
 person holding under-raiyat at fixed 
 
 rate is, 288. 
 cannot acquire occupancy right, 
 
 307-309 
 
 UNDER-TENURE HOLDER— 
 may protect putni from sale by 
 
 paying arrears, 153. 
 right of, in case of such payment, 
 
 153, 154- 
 may sue for compensation for loss 
 
 at putni sale when, 157. 
 under-tenures in Chotanagpur, 
 
 416, 
 
 USAGE— 
 
 recognition by village usage is good 
 evidence of land being proprie- 
 tor's private land, 324. 
 
 established usage regulates instal- 
 ments of rent, 333. 
 
 regulates incidents of homestead 
 land, 316, 384. 
 
 See Custom. 
 
 UTBANDI— 
 
 right of occupancy in, 298, 317, 
 318, 326. 
 
 VILLAGE CpMMUNITIES— 
 Sir Henry Maine on, 13, 14. 
 what are, 14, 15. 
 
 in Bengal in a dismembered condi- 
 tion, 14. 
 but in N. W. P. in complete form, 
 
 how far they are important m rela- 
 tion to right in land, 14, 15. 
 
 there was no idea of joint or com- 
 mon ownership amongst members 
 of, 15. 
 
 no settlement of any estate was 
 made at the Permanent Settle- 
 ment with an}' village commu- 
 nity as such or headman thereof, 
 
 no unity of proprietorship except 
 in certain common property, 16. 
 
 each family was proprietor, 16. 
 
 each village had defined bound- 
 aries, 16. 
 
 grazing ground was common prop- 
 erty, 17. 
 
 agricu'tural lands not common 
 property, 18. 
 
 ZEMINDARS— 
 
 theoretically were mere collectors 
 
 of revenue, 26. 
 but had to perform the functions 
 
 of a sovereign, 26. 
 in fiscal matters their authority was 
 
 supreme, 26. 
 what they were said to have been
 
 4^o 
 
 GENERAL INDEX. 
 
 ZEMIN DARS— Continued. 
 
 before the Permanent Settlement, 
 
 the only class to whom the Govt. 
 
 could then look for punctual 
 
 realisation of State dues, 89. 
 this class had different sources of 
 
 origin but known under one 
 
 name, 89. 
 they may be classified as follows, 
 
 viz. — 
 
 (1) the old Hindu Rajahs. 
 
 (2) great land-holding fami- 
 lies that came into exist- 
 ence during the Maho- 
 medan Govt. 
 
 (3) persons whose families 
 had held offices for col- 
 lecting revenue for two 
 or three generations. 
 
 14) revenue farmers placed 
 in office since the grant 
 of the Diwani, 89, 90. 
 bound to pay dawk cess, 96. 
 but not entitled to recover it from 
 tenants, 97. 
 
 ZE M I N DA RS— Continued. 
 
 road and public works cesses pay- 
 able by, 97. 
 
 liable to supply provisions &c. to 
 the army, 123, 124. 
 
 penalty for default, 124. 
 
 liable to give information of certain 
 offences, 124. 
 
 their officers also liable, 124. 
 
 responsible for due publication of 
 sale notifications of putni taluqs 
 under Reg. VIII, 148. 
 
 onus of proving due publication 
 of notices under Reg. VIII on, 
 148. 
 
 and he has to prove due observance 
 of formalities, 148. 
 
 no presumption in favor of, re- 
 garding due service of notice, 
 148. 
 
 to pay costs and damages if putni 
 sale is set aside, 153. 
 
 ZERAET. 
 
 See Proprietor's Private Land. 
 
 m-^^
 
 Ur CiniiTpr, 
 
 AA 000 744 337 7