Judgement

APPEAL from a decree of the Judicial Commissioner of Oudh (Jan. 4, 1876), which confirmed a decree of the Commissioners of Lucknow (May 1, 1875), who reversed the original decree of the Civil Court of Lucknow (Jan. 8, 1875), whereby the Plaintiffs suit was decreed.

In the Hijri years corresponding to 1839 and 1840, the then King of Oudh, Mahomed All Shah, executed to the Appellant, his wife, four several " farmans " or grants, by which he conferred upon her u and her descendants in perpetuity, generation after generation," the properties in suit, as well as some other properties, consisting of certain Government palaces and buildings in Lucknow, called a baradari, serai, &c, of considerable extent and value. There was no question as to the genuineness of those farmans, which were admitted in Court by the Government pleader in the course of the case, and there under the Appellant was and continued in undisturbed possession of the subjects of those grants down to the year 1858, her right thereto not having been questioned by the successor of her husband on the throne, nor by the British authorities upon the first annexation of the province of Oudh.

Law. Rep. 6 Ind. App. 63 ( 1878- 1879) Nawab Malka Jahan Sahiba V. Deputy C ommissioner of Lucknow Law. Rep. 6 Ind. App. 63 ( 1878- 1879) Nawab Malka Jahan Sahiba V. Deputy C ommissioner of Lucknow 89

After the reduction of Oudh Lord Cannings proclamation ((1) See post, p. 74.) was issued, apprising the " talookdars, chiefs, landholders of Oudh, and their followers," of the liability of their lands to confiscation, and of the intention of the Government in the case of those who should come in and support the Chief Commissioner to (be ready to view liberally the claims which they might thus acquire to a restitution of their rights."

This was followed up by two notices or proclamations of the Chief Commissioner, Sir James Outram, of the 22nd and 25th of March, 1858, addressed, the first to the inhabitants of the city of Lucknow, and the other to the landholders, with reference to Lord Cannings proclamation.

By the first of these the inhabitants of the city, who had fled away after locking up their houses, were informed that unless they returned and reoccupied their houses within ten days, their houses would be confiscated, and by the second, the landholders were informed that if they would come in at once no lands would be confiscated under the proclamation, unless where atrocities on helpless Europeans had been committed.

What occurred subsequently appears from a number of official letters, the material portions of which are set out in their Lordships judgment.

The object of the suit was to obtain a declaration of the Appellants absolute title to certain houses and premises in Lucknow, on the ground that her deceased husband, the then King of Oudh, had absolutely conferred them on her, and that the action of the Government of Oudh, represented by the Respondent, in seeking to reduce her interest to one for life, was unjust and wrongful.

The First Court held that the Plaintiff had an absolute and subsisting hereditary right, and was entitled to a decree as prayed establishing her absolute interest.

The Second Court held that the acts of the Government of Oudh complained of were acts of State not cognizable in a Municipal Court.

The Judicial Commissioner held that the suit was barred by limitation.

Cowie, Q.C., and Doyne, for the Appellants, contended that the absolute and hereditary interest which the Appellant took under the grants from the King of Oudh was not in fact reduced nor affected by any act of State in 1858, or subsequently. It had nowhere been contended that there was any existing cause of confiscation, either on the ground of her having committed any crime, or of her having failed to come in under Sir James Outrams proclamation. Consequently at that time there was no act of State exercised against her which worked or was intended to work a confiscation of any righ