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1870 Supreme(SC) 14
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
MEMBERS OF THE JUDICIAL COMMITTEE—THE RIGHT HON. LORD CAIRNS, THE RIGHT HON. SIR WILLIAM JAMES COLVILE, AND THE RIGHT HON. SIR JOSEPH NAPIER, BART.
ALEXANDER JOHN FORBES - Appellant
Versus
MEER MAHOMED TUQUEE - Respondents
On appeal from the High Court at Fort William, Bengal.
Decided On : 8th & 12th July, 1870.
Privy Councillor,- Assessor :—The Right Hon. Sir Lawrence Peel.
A grant of an estate burdened with service, made partly for past rewards and partly for future inducement, is not resumable upon the obsolescence of the service unless the grant expressly provides for termination upon the cessation of such services.
Headnote:(A) Ben. Reg. VIII of 1793, Sections 36 and 41; Act No. I of 1845, Section 26 - Resumption of rent-free service lands (Jaghire Chakeran) - Validity of confirmation grants after Permanent Settlement - Distinction between grant of an office and grant of an estate burdened with service - Effect of obsolescence of services on the right of resumption - A grant that confirms a prior hereditary tenure created before the Permanent Settlement is not a new grant and cannot be set aside as such.
(B) A clear distinction exists between the grant of an office where duties are remunerated by the use of certain lands and the grant of an estate burdened with a certain service. Where a grant is made partly as a reward for past services and partly as an inducement for future services, and contains no express provision that the tenure determines upon the cessation of such services, the tenure does not become resumable simply because the services are no longer required due to natural causes.
(C) If the operation of a natural cause removes the necessity for the services originally imposed, the grantee holds the lands practically freed from the condition, provided the grant does not expressly make the continued performance of service the sole motive and consideration for the grant.
Facts of the case:
The Appellant, as the owner of a zemindary, sought to resume 9,000 beegahs of rent-free lands and recover 2,000 beegahs of excess land. The lands had been granted via a series of instruments, the first in 1775 for preventing wild elephant incursions, and the last in 1807, which confirmed the hereditary title of the true heirs. The Appellant contended that the lands were revenue-paying assets of the zemindary at the time of the Permanent Settlement and that the service tenure had become obsolete, thereby entitling the Zemindar to resume the lands. The Respondents argued that the lands were rent-free before the settlement and that chakeran lands are exempt from resumption even if the services are no longer required.
Findings of Court:
The claim for the 2,000 beegahs of excess land was rejected based on the concurrent findings of the lower courts. The court found that the 1807 grant was not a new grant but a confirmation of a hereditary tenure created in 1786, which existed prior to the Permanent Settlement of 1802. While the preponderance of evidence suggested the lands were treated as revenue-paying between the Government and the Zemindar, they remained rent-free between the Zemindar and the Jaghiredars.
Issues: Whether a confirmation grant issued after the Permanent Settlement creates a new resumable tenure; and whether the obsolescence of the specific service for which the land was granted entitles the Zemindar to resume the land.
Ratio Decidendi: The court ruled that the tenure was a grant of an estate burdened with service rather than a grant of an office. Because the grant was based partly on past services and lacked an express clause stating that the tenure would terminate if the services ceased, the fact that the services were no longer necessary (due to the disappearance of wild elephants) did not justify resumption. The grantees remain liable to perform the duty if it becomes necessary again, but the tenure does not determine simply because the occasion for the service has ceased.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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property law
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land tenure
- jaghire
- resumption
- permanent settlement
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land tenure
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practice and procedure
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evidence
- authentication
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evidence
Judgement
THIS suit was instituted by the Appellant, for resumption of 9,000 beegahs of Jaghire Chakeran lands of Talook Ramgunge and Talook Gurrah, in Pergunnah Sultanpore, which were held by the Defendants as rent free, but were alleged by the Appellant to be comprised in, Alexander John Forbes V. Meer Mahomed Tuquee 71 and to form part of, a zemindary, called mehals Havelee Purneah, which had been sold for arrears of Government revenue, on the 24th of July, 1850; and the suit also sought for the recovery of possession of 2,000 beegahs of land, called " Towfeer," alleged to be held surreptitiously by the Defendants, in excess of the before-mentioned 9,000 beegahs, and under colour of the Sunnud or grant relating thereto. The Appellant sued, as Zemindar of Pergunnah Sultanpore, under a title from Baboo Pertaub Sing, the auction Purchaser. The Respondents were sued as heirs of the original Grantees in possession. After the admission of the appeal by the High Court, the principal Defendant, Meer Mahomed Tuquee, died, and the Respondents, as his representatives, were made parties in his place.
The following were the facts of the case —
In the year 1183 Moolkee (1775 A. D.), the East India Company, by a Sunnud, dated 11th Rujub of that year, granted to Meer Syed Ally, 9,000 beegahs of " Kharij jumma" lands from villages specified in a Chukbund, situate within or on the boundaries of Pergunnah Sultanpore, in the District of Purneah. The consideration for the grant was expressed to be founded on the past services of the Grantee, whereby the incursions of Elephants in the Pergunnah Sultanpore, from the direction of the Morungs upon the cultivated lands of the Pergunnah, had been prevented; and the grant was made as a reward for such and future services, in order that the cultivation of the Pergunnah might become extended, and the Ryots thereof be protected by the Grantee. The Chukbund referred to in the Sunnud was executed under the seal of the Collector of Purneah, dated the 2nd Assin, 1183 (1775 A.D.), and contained the names, boundaries, and measurement of the lands comprised in the grant, the total measurement being stated at 9,012 beegahs, whilst the area of Ramgunge included in the grant, was given at 1,464 beegahs.
At the date of the Sunnud, the East India Company also granted to Meer Syud Ally other lands, not embraced in this suit, in the same Pergunnah, as Istimrary, or in perpetuity at a fixed rental, the Grantee being styled Istimrardar or Mookurreedar, and the last-mentioned lands known under the general description of Talook Remae, &c., as a rent-paying Jaghire. The lands which had been granted free from rent, became known under the general description of Ramgunge Peepra , or Jaghire Peepra Ramgunge Gurha, &c, as a rent-free Jaghire, but comprised, in fact, only very inconsiderable portion of those particular mouzahs, the rest being included within Pergunnah Sultanpore, and paying a Government revenue.
On the 21st Cheyt, 1192 (2nd April, 1786), at which time Meer Syud Ally was dead, the East India Company, in consideration of his merit and past services, executed a further Sunnud in respect of the same lands under the description of Ramgunge Peepra, &c, to Meer Abdool Hossein Khan and Meer Ally Rezza (who claimed to be the elder Brother and Nephew of the original Grantee), who were by the Sunnud authorized to cultivate the same and to enjoy the produce thereof with their children the words used in the original Sunnud being “Ba Farzandan,” the ordinary words of inheritance employed in deeds of that kind.
It was alleged that the real heirs of Meer Syud Ally were at this time resident in Persia, and ignorant of his death, and that the last-mentioned Sunnud was, therefore, in fact obtained in fraud of their rights.
On the nth of February 1802, Ranee Indra wuttee, being the then Zemindar of Sultanpore, having made the settlement with the East India Company, entered into a kooboleat or agreement of that date, fixing the reve
