Judgement

Appeal (No. 15 of 1932) from a decree of the High Court (August 25, 1931) reversing a decree of the District Judge of Ratnagiri (September 28, 1925).

The suit was instituted in 1916 by the respondents father, the Jahagirdar of Bavda and Sardesai of Salshi and Kharepatan, who died pending the appeal to the High Court, the respondent being thereupon substituted as his legal representative. The plaintiff claimed a declaration that he was entitled to receive an annual allowance consisting of a percentage of the assessments from time to time on certain villages, and payment of arrears of the allowance on that basis. The appellant by his defence pleaded (1.) that the suit was barred by limitation; (2.) that the plaintiff was entitled only to a fixed annual sum, being a percentage of three years assessments, in accordance with a letter of the Acting Commissioner of the Southern Division dated July 3, 1889 ; (3.) that the plaintiff had acquiesced in the above basis of payment by accepting them from 1893 to 1900.

The facts appear more fully from the judgment of the Judicial Committee.

Both Courts in India rejected the defences of limitation and acquiescence. The District Judge dismissed the suit holding that the alteration in the annuities was authorized by rules issued by the Government in 1878 under Bom. Act VII. of 1863. Upon appeal to the High Court the decision was reversed ; the learned judges (Baker and Nanavati JJ.) held that Bom. Act

VII. of 1863 did not apply to the case. A decree was made for the arrears with interest at 6 per cent. The appeal is reported at 34 Bom. L. Rptr. 129.

1934. Jan. 18, 19, 22, 23. De Gruyther K.C. and Wallach for the appellant.

Sir Thomas Strangman for the respondent.

On the new contention by the appellant reference was made to Secretary of State for India v. Bai Rajbai (( 1915) L. R. 42 I. A. 229.) and Vajesingji Joravasingji v. Secretary of State for India. (( 1924)

L. R. 51 I. A. 357.)

Feb. 13. The judgment of their Lordships was delivered by

LORD RUSSELL OF KILLOWEN. In the year 1704 the Maharajah of Satara by sanad confirmed to an ancestor of the plaintiff the right in perpetuity to collect the revenue of two divisions (namely, Kharepatan and Salshi), each comprising various villages within its boundaries. In regard to Kharepatan the remuneration was fixed at 2 per cent, of the Government assessment. In regard to Salshi the percentage was not expressly mentioned in the grant, but the rights in respect of Salshi were treated as in all respects upon the same footing as the rights in respect of Kharepatan. Kharepatan and Salshi are situate in the Talukas of Devgad and Malwan, of the Ratnagiri District.

The British Government acquired this territory in 1817 and for many years thereafter the ancestors of the plaintiff and the other hereditary officers were continued in the enjoyment of their offices and emoluments.

Later on, the Government desired to supersede the hereditary officers, and in or about the year 1865 an offer of a commutation settlement was made by Government to the Ratnagiri office holders, as a result of which, if accepted, they would cease to discharge the duties of their offices and would receive a reduction in their emolument of 5 ½ annas per rupee. This commutation or non-service settlement was enforced compulsorily by a Government resolution (No. 6260) of September 16, 1887, with the result, as regards the plaintiff or his predecessor in title, that he became entitled to receive only 1 rupee 5 annas per cent, of the Government assessment. The Government resolution, No. 6260, recites that the Government had undoubtedly full authority to enforce the above settlement upon the office holders, and the existence of that authority (however it may have arisen) has not been in dispute in the present action.

Later, however, the Government took further action in the matter, and it is their authority and power in relation to that further action which has been questioned by the pla