JUDGMENT

Norman, Officiating C.J.

1. The preamble of Regulation XIX of 1793 is as follows:-- "By the ancient law of the country, the ruling power is entitled to a certain proportion of the produce of every biga of land demandable in money or kind, unless it transfers its right thereto, &c., or limits the public demand upon the whole of the lands belonging to an individual, leaving to him to appropriate to his own use the difference between the value of such proportion of the produce and the sum payable to the public, whilst he continues to discharge the latter." As a necessary consequence of this law, if a zamindar made a grant of any part of his lands to be held exempt from the payment of revenue, it was considered void from being an alienation of the dues of the Government without its sanction; and section 10 enacts that "all grants fox holding land exempt from the payment of revenue that have been made since the 18th December 1790, or that may be here after made by any other authority than that of the Governor-General in Council, are declared null and void, and no length of possession shall be hereafter considered to give validity to any such grants, either with regard to the property in the soil or the rents of it;" and the preamble of Regulation XLIV of 1793 states that it was "to be apprehended that many proprietors from improvidence, &c., might be induced to dispose of dependent talooks to be held at a reduced jumma, or fix the jumma of the dependent talooks now existing, &c., at an under rate, or let lands in farm, or grant pattas for the cultivation of land, at a reduced rent for a long time, or in perpetuity;" that "such engagements, if held valid, would leave it in the power of weak, improvident, or ill-disposed proprietors to render their property of little or no value to their heirs, promote vice and injustice, occasion a permanent diminution of the resources of Government arising from the lands, in the event of the rent or revenue reserved by such proprietors being insufficient for the discharge of the public demand upon their estates, be an abuse of the great and lasting benefit which has been conferred upon the landholder by the possession of their lands being secured to them in perpetuity at a fixed assessment; and moreover he repugnant to the ancient and established usages of the country, according to which the dues of the Government from the land, as defined in Regulation I of 1793, are inalienable without its express sanction;" and by section 2 (which was afterwards repealed by section 2, Regulation V of 1812), it is enacted that "no leases or other engagements shall be made for a term exceeding ten years." Reading these Regulations together, it seems to have been the intention of the Legislature to treat the zamindars as agents or trustees for the Government, and, as such, bound to collect the Government share of the produce from each and every biga of land within their zamindaries. They are incapacitated from depriving themselves of the right and obligation of collecting the revenue, which by Regulation XLIV is declared inalienable, i.e., by the zamindar, without the express sanction of Government; and it is in accordance with that principle that all grants by zamindars, which exempt the grantees from liability to pay revenue to the zamindar, are declared null and void by section 10, Regulation XIX of 1793.

2. If, therefore, the grant now before the Court is to be considered simply as a rent-free grant created by a zamindar since 1790, I should feel bound to agree with the Court below, and say that it is null and void. This would be in accordance with the decisions of the late Sudder Court, Baboo Moodhnarain Sing v. Amirrunissa Begum S.D.A., 1852, 967, and Ahmed Alee Khan v. Moodhnarain Sing S.D.A., 1855, 395.

3. But first, we may observe that, by the acceptance of the grant in question, the grantee and his heirs are bound to allow the tenants of the zamindar in the village to take water; and that liability i