Bishun Prasad vs Kamta Prasad Misra and Others

Manohar Lall, J.—The respondents instituted a suit for recovery of possession over 2.82 acres of land covered by survey plot No. 166 in khata No. 126 in Mahal Gobindbigha. The mahal originally belonged to defendants fourth party and was sold for arrears of Government revenue in the year 1930 and purchased by the ancestor of defendant first party who obtained delivery of possession in July 1930. The cause of action for the suit was that the ancestor of the defendant second party was set up as a tenant of the land and as the result of a criminal proceeding started in July 1933, the Criminal Courts passed an order u/s 145 declaring the possession of the defendant second party with the result that the plaintiffs were dispossessed on 20th July 1933.

The plaintiffs'' case was that the disputed land known as Jagir Badal Singh was a grant made by Government to Havildar Badal Singh, an invalided soldier, under the provisions of regulations for invalided sepoys and was a tenure existing from the time of the Permanent Settlement and wag protected from annulment after the revenue sale of 1930--the land was admittedly acquired by the ancestor of the plaintiffs some time in 1872. The defence to the action was that the jagir was not a grant made to any invalided soldier and did not exist from the time of the Permanent Settlement and was not a protected interest within the meaning of Section 37, Revenue Sale Law, and that it was properly annulled after due notice had been given to the Jagirdar.

Before the trial Court it was not disputed that the land in suit appertained to Jagir Badal Singh Havildar. He found from an examination of two old documents, Ex. 3 and Ex. 4, that the Jagir was created some time before February 1800. Ex. 3 which is a certified copy of a register containing a list of the jagirs granted to various invalided soldiers of Pargana Salemabad by the Government contains a note that the specified area of jagir land was granted to Badal Singh Havildar in Gobind Bigha. Ex. 4 is a certified copy of an entry in the register maintained by the Collector from 1200 to 1235 Fasli and Ex. 5 is the Batwara Rubakar on partition of Mahal Gobind Bigha.

Each of these documents shows that the village Gobinda Bigha was first temporarily settled with Dhrub Singh, who later on surrendered the estate, which then remained for some years in the khas possession of the Government. But, later on, when Dhrub Singh agreed to the terms of the engagement offered by the Government the village was permanently settled with him on 9th December 1800. Again in the Batwara Khasra (Ex. 6) of 1866-67 the ancestors of the plaintiffs were shown to be in possession over the land known as Jagir Badal Singh with a liability to pay rent at 3 annas per bigha. It follows from these documents that the jagir in question was existing in February 1800 but the trial Court proceeded to presume backwards and held that the jagir in question was in existence in the year 1793 and therefore he came to the conclusion that this was protected from annulment under the first exception to Section 37 of Revenue Sale Law (Act 11 of 1859).

The defendants appealed to the learned Subordinate Judge who agreed with the conclusion of the trial Court and held that the jagir existed in February 1800, that the permanent settlement of the estate was made by Dhrub Singh in December of the same year and that the rent at 3 annas per bigha became payable as a consequence of the operation to this jagir of the provisions of Regn. 1 of 1804. He also agreed with (the trial Court that there was no clear evidence as to the exact date of the creation of the jagir, but he differed in making the presumption that the jagir existed in 1793 and came to the conclusion that upon the evidence in the present case he could only hold that the jagir did exist in February 1800. He interpreted the words "permanent settlement" in the first exception to Section 37 to mean the permanent settlement of the particular estate and as he had found that the estate in which this jagir was situated was settled with Dhrub Singh in December 1800, that is to say after the jagir was created in 1800, he took the view that the jagir was protected from the annulment within the meaning of the first exception to Section 37 of the Revenue Sale Law.

He distinguished the case reported in Laljit Upadhyay v. Wajihunnissa Begam AIR (1920) Pat 533 which was cited before him on behalf of the appellants on the ground that the interpretation of Section 37 of Revenue Sale Law was not in issue therein as it was found in that case that the defendants were not tenure holders but mofassil talukdars under Clause 2, of Section 10 of Regn. 7 of 1822. He relied upon the case in Hamed All v. Atlas Ali (1913) 19 IC 872, where it was held that for the purposes of Section 37, Revenue Sale Law, 1859, the word "settlement" must be taken to mean the permanent settlement of the estate concerned and not the year 1793 in which greater portion of Bengal was permanently settled. In the result he agreed with the learned Munsif and dismissed the appeal. Hence the second appeal by the defendant first party to this Court. "When the matter was argued before a Division Bench consisting of my Lord the Chief Justice and myself we thought that the decision of this Court in Laljit Upadhyay v. Wajihunnissa Begam AIR (1920) Pat 533 may require reconsideration and as the question was of great importance the appeal was referred for decision to the Full Bench.

Sir Manmatha Nath Mukherji appearing for the respondents submitted that the jagir in question is wholly outside the province of Section 37, Revenue Sale Law, and that the question as to whether the case in Laljit Upadhyay v. Wajihunnissa Begam AIR (1920) Pat 533, was correctly decided or not does not fall to be determined in the present case. It seems to me that the learned Advocate for the respondents is correct in his contention. A short review of the Regulations by which jagirs were granted to invalided sepoys is necessary to determine the true character of the present jagir.

On 18th February 1789, the first regulation for invalided sepoys was passed by the Governor-General in Council by which the East India Company was relieved from a part of the expense of the native invalided establishment at Monghyr and gave an option to the invalided native troops which were then at Monghyr or who may hereinafter be invalided, to receive a grant of waste land in lieu of the pay allowances given to them by the Government. The areas of waste land which each class of invalided soldiers could obtain was indicated in Article 1--the Collectors of Bihar and Shahabad were directed to make it a rule to select as far as may be in their power such tracts of waste land for the invalids as may be brought into cultivation with the least difficulty and at the smallest expense so that they may afford a produce adequate to the labour of the tillage and may have an opportunity of procuring with greater facility such assistance as may be required for enabling them to establish themselves upon their lands (Article 5). Article 6 provided that the original grantee shall hold the lands allotted to him rent-free for life, without being subject to any tax or demand whatever.

Article 7 provided that the sannads for the lands so granted in Bihar, Rotas and Shahabad should be made out under the official seal and signatures of the Collectors of those districts. The situation on the death of the original grantee was to be regulated by Arts. 8 and 9, namely that upon the death of the original grantee his lands should be continued to his heirs at law at a fixed jumma, to be assessed by the Collectors upon an estimate of the actual net produce after deducting one-tenth therefrom to be annually paid to the zemindar as maliconnah by the mocurrery holder, who shall thenceforward be considered upon the same footing as other persons in the Province holding lands at a fixed rent, and the Collectors were to fix the rent payable to the Government.

After the rent payable to the Government and the maliconnah payable to the zamindar was determined, the Collectors were required to cause mocurrery sunnuds to be drawn out and authenticated in the mode already described in Article 7 in the name of the heirs of the deceased who, it is important to note, were authorized to hold these lands in perpetuity, so long as they should continue to discharge the rent and maliconnah with which they may be assessed. Article 10 dealt with the situation which would arise if the original grantee died within five years from the date of the grant.

Article 11 stated that if any of the mocurrerydars omitted to discharge the amount of Government''s rent and the maliconnah payable to the zamindar, their mocurrery leases with the rights and privileges thereto annexed should be sold to the best bidder for the liquidation of the amount of the demands against them. By a Resolution dated 24th December 1790, the Board of Revenue agreed that in order to obviate the objections which the landholders may entertain to the allotment of waste lands to invalids

the whole amount of the fixed jumma to be assessed upon such lands after the death of the original grantee agreeable to the Regulation of 18th February 1789, be declared to belong to the proprietor of the village in which such lands may be situated, and that he be not subject to any additional demand on the part of Government on account thereof during the term of the engagements that may exist between him and Government at the time that the lands so granted may become liable to the payment of such Jumma.

It is obvious from a consideration of these provisions that these jagirs were granted by the paramount power to the invalided soldiers for life and to their descendants in perpetuity subject only to the descendants paying a fixed rent to the Government and maliconnah to the zamindar in whose village the lands were situated and further that the income from these lands was not to form a part of the assets upon which revenue was assessed upon the zamindar. The decennial settlement of the public revenues of Bengali, Bihar and Orissa was made by Regulations dated 18th September 1789, 25th November 1789 and 10th February 1790 wherein it was notified to the proprietors of land, with or on behalf of whom a settlement might be concluded, that the jama assessed upon their lands under those regulations would be continued after the expiration of ten years and remain unalterable for ever provided the Directory of the East India Company agreed. By Regulation 1 of 1793 dated 22nd March of that year, but passed by the Governor-General in Council on 1st May 1793, it was intimated to the zamindars that the Directors of the East India Company have agreed and therefore the jama which has been or may be assessed upon their lands under the above mentioned regulations would be fixed for ever and that after the expiration of the terms of that settlement no alteration will be made in the assessment which they have respectively engaged to pay, but that they and their heirs and lawful successors will be allowed to hold their estates at such assessment for ever.

It will be noticed that this Permanent Settlement Regulation does not at all interfere with the rights and liabilities of the jagirs granted to invalided soldiers. Regulation 43 of 1793 re-enacts in the form of a regulation the rules passed on 18th February 1789 and 24th December 1790, for granting of lands to invalided soldiers; it was passed by the Governor. General in Council on 1st May 1793 and also embodies the new rules which were passed on 25th February 1793. It consists of 33. Sections.

The terms upon which the new grants are to be held by the invalids and their heirs are substantially the same as in the earlier regulations. Section 5 provides by the first article that the land is to continue the property of the zamindar or other proprietor and is never to be separated from his estate.

The third article defines that the invalids are to hold the land free of rent or any demand whatever during their lives, and after their demise, the land is to devolve to their heirs. The fourth article enjoins the heirs of the invalids to pay to the zamindar one-tenth of the produce of the land as malikanah for the first five years and thereafter by the fifth article the payment of one-tenth malikanah is to cease and the Collector was required to assess the lands with a net rent, equal to two-thirds of the amount paid for other lands in the district of the same description and quality and this rent was to be paid to the zamindar or other proprietor but was not liable to any variation. The seventh article provides that if an invalid dies without heirs, the land was to be given to the option of a fresh man coming upon the establishment to supply his place in the thana upon his agreeing to take the lands upon the terms to which he would have succeeded to them had he been the heir of the deceased.

But if no fresh man agrees to take the lands upon these terms the lands are to revert to the zamindar or other proprietor who is entitled to dispose of them in such manner as he may think proper. The eighth article states that if the invalid dies and leaves heirs who are not willing to receive the lands upon the foregoing terms, or are incapable of cultivating them, the heirs should be allowed to dispose of their rights to any of the invalids belonging to the thana, the purchaser becoming subject to all the conditions in the articles regarding the heirs of the invalid. The ninth article provides that if an invalid from idleness or perverseness wholly neglects the tillage of his jagir for two years after he is put in possession, the jagir is to be forfeited and given to a fresh

Similarly the 10th article provides that if an heir to a jagir leaves the land uncultivated for one year after he claims it and is ordered to be put in possession, the land may be forfeited and transferred to any other invalid, or heir, or successor of an invalid, who will take it upon the same terms as he would have been entitled to hold it, had he been the heir of the deceased. In the event of no invalid agreeing to take the jagir upon the above terms, the jagir was to revert to the zamindar or other proprietor. The 11th Article deals with the situation when the lands which should devolve upon the heirs or successors of the invalids are to be assessed and if any parts of them are not brought into cultivation they may be resumed and the zamindar or other proprietor is given the liberty to grant pattas for those portions to whomsoever he shall think proper after an option has been given to the person who has omitted to cultivate them to bring them into cultivation within a year. The 12th article provides that the malikanah and rent to which the lands are declared liable are to be collected by the Collector and accounted for to the zemindar or other proprietor by credit being given him for the amount in part of his stipulated annual payments to Government. It further provides that no increase of revenue is to be levied from the zemindar or other proprietor during the time of the engagement which may subsist between him and Government on account of the rent or malikanah which may become payable to him from the lands of the invalids during the term of such engagements.

Article 13 enjoins the Collector to obtain from the proprietor a pattah for an invalid or his heir or successor if he is put in possession of a jagir. The pattah is to be in the name of the possessor of the land specifying the amount of the rent or assessment, the quantity of land, the boundaries of it, and the terms of the tenure. Section 8 provides that where invalids are established upon lands which are the property of the Government, they are to hold them upon the same terms as invalids settled upon lands belonging to zemindars or other proprietors of land paying revenue to Government. Section 9 lays down that widows being heiresses to the jagirs of their husbands should be allowed to marry whom they please without forfeiture of their jagirs, which, after their death, are to devolve to their heirs at law.

Section 27 provides that jagirs while possessed by invalids are not to be assigned as security for money borrowed by them, nor are they to be answerable after their decease for debts contracted by them, but when jagirs devolve to the heirs or successors of invalids, they are to be answerable for debts contracted by such heirs and successors.

Section 33 consists of fourteen articles. Article 1 provides that the rules contained in the first 32 Sections which I have summarised above, will not apply to those invalids who have already accepted lands under the resolutions of 18th February 1789 and 24th December 1790.

It provides that those invalids are to be considered as tenants of the landlords in whose estate they are settled and that in order to secure them and their heirs in the possession of the lands which have been made over to them the Collectors are to apply to the zemindars to grant them pattas, confirming the land to them and their heirs as patta taluks agreeably to the terms of those Regulations. Article 2 reproduces the terms of the Regulation of 18th February 1789 and Article 14 reproduces the terms of the Regulation of 24th December 1790. In the year 1795 Regn. 56 was enacted to allow the heirs of invalids to hold the land rent-free on the expiration of the tenth year from the date of the original grantee''s being put in possession in case of his dying within ten years. But this was rescinded by Regn. 1 of 1804. By that Regulation, the better management of the invalid jagirdar establishments and of the invalid pension establishments was provided. Article 2 rescinds Regn. 43 of 1793 and Regn. 56 of 1795 and instead of the terms thereof similar rules were enacted which were inserted in Article 9 consisting of 16 Sub-sections. Article 27 distinctly provides that Section 33 of Regn. 43 of 1793 is to remain in force.

By Regn. 11 of 1808 the rent payable by the heirs of invalid soldiers was again regulated. It states in Clouse 1 that by Clause 6 of Section 9, Regn. 1 of 1804, it was enacted that after the expiration of a period of five years the payment of malikanah shall cease and the proprietor of the land shall be entitled to rent in the pro-portion of two-fifths of the annual produce, whether in kind or money as may be agreed on between the parties and that the intention of this provision was not to increase the rate of rent payable by the heirs of invalids to the zamindars for which no motive could exist, because

the lands in question not being included in the assets on which the jumma payable by the zamindars to Government had been adjusted,

but that the modification was adopted on the supposition that a difficulty might occur in ascertaining the sum equal to two thirds of the amount paid for other lands in the district and therefore by the new Article 3 it was enacted that the zamindars shall be entitled to receive a net rent equal to two-thirds of the amount paid for other lands in the district of similar quality. By Regn. 2 of 1811 the existing rules for the support of invalided officers were amended in some particulars which are not material for the purposes of this enquiry.

It seems to me from a perusal of the carefully worded provisions of these Regulations relating to jagir lands granted to invalids that the jagir lands which were granted to invalids or their heirs are regulated by the terms of these Regulations themselves and are not tenures granted by the zamindar in any sense of the term. The zamindar is not entitled to assess rents upon the jagirdars nor to realize direct the malikanah payable to him nor to resume the lands upon the death of the invalid or his heirs. The rents assessed upon the lands when they come into the possession of the heirs of the jagirdar are not to be taken into consideration in increasing the revenue payable by the zamindar to the Government. The malikanah is not payable to him nor realizable by him, but this is to be realized by the Collector and when realized it is to be credited in the account against the revenue due to the Government from the zamindar.

In truth the grant of this kind of jagir is a grant by the Government by virtue of its paramount power of a piece of land to its invalided soldiers which would remain in perpetuity in the possession of the heirs of the jagirdar provided the heirs complied with the terms in the Regulations.

It has already been seen that upon the death or extinction of the heirs of the jagirdar or upon their refusal to carry out the terms of the jagir grants the land does not revert to the zamindar but reverts to him only if no other invalid is found willing to take the land upon those terms or if no fresh man coming upon the establishment of invalids is willing to supply his place in the thana upon the same terms. It seems to me therefore quite clear that the jagirdar, as I stated before, is not a tenant of the zamindar in any sense of the term and for this reason I do not accept the contention of the learned Counsel for the appellant when he relies upon Clause 9 of Section 33, Regn. 43 of 1793 that the mocurrery holder shall thenceforward (upon the assessment of rent on the death of the original grantee) be considered upon the same footing as other persons in the province holding lands at a fixed rent.

This clause which merely defines the status of the heir of the grantee in the village hierarchy does not in the least derogate from the rights which the Government was providing anxiously by means of the various Regulations prior to and after Regn. 43 of 1793 to enable the heirs of the grantee to remain upon the land in perpetuity.

I therefore agree with the contention of the learned advocate for the respondents that the rights of the respondents in the present jagir to continue to hold the land in perpetuity agreeably to the holders and their heirs observing the terms of the various Regulations are not at all affected by the revenue sale of the year 1930. In this view it is unnecessary to consider the correctness of the decision in Laljit Upadhyay v. Wajihunnssa Begam AIR (1920) Pat 533 I would dismiss the appeal with costs.

Harries, C.J.

I agree.

Dhavle, J.

24 I agree that this jagir is governed by the terms of the Regulations in force at the time it was created and that it is not liable to be avoided and annulled u/s 37, Bengal Land Revenue Sale Law 11 of 1859, as a tenure which, though mukarrari, cannot be shown to have been in existence at the time of the Permanent Settlement. In 5 Pat L J79,1 the contention that an under-tenure cannot be annulled u/s 37 because it was created by Government was overruled. That was a case of mufassil talukdars obtaining their settlement under Regn. 7 of 1822. Ours is a jagir which was in existence in February 1800, and which must therefore have been created either under the pre-settlement Regulations which were repeated in Section 33, Regn. 43 of 1793 for such grants, or under the new provisions enacted under that Regulation for later grants, to invalided soldiers.

If the former be the case, the heirs of the invalid were, under Article 9 of the old provisions, entitled to a mocurrery sunnud under the official seal and signature of the Collector, to hold the land

in perpetuity, so long as they shall continue to discharge the rent and malikanah with which they may be...assessed,

and this must be borne in mind in construing the provision in the preceding article that the mocurrery holder hall...be considered upon the same footing as other persons in the province holding lands at a fixed rent." Such a grant would of course be prior to the Permanent Settlement but as will be presently seen it is not really on this ground that it is saved from annulment u/s 37 of the Act of 1859. According to the Preamble or Introduction, in Section 33 of the Regulation of 1793, to the presettlement regulations under which such grants.

They were grants of waste land--were made, the grantees are to be considered tenants of the land-holders in whose estate they are settled and with a view to secure them and their heirs in the possession of the lands, the Collectors are to apply to the zamindars

to grant them pottahs, confirming the land to them and their heirs as pottah talooks, agreeably to the terms of the above mentioned regulations under which they received the lands and which as far as they regard the provinces of Bengal, Behar and Orissa are hereafter inserted as the rules by which all questions regarding any such grants as may have been made are to be decided.

(The italics are mine). These pottah talooks are thus special creations of the ruling power, merely confirmed by pottahs from the zamindars who under the; regulations of 24th December; 1790 were not subjected to any additional demand of revenue on account of the rents permanently assessed on them. Post-settlement grants to invalided soldiers were as will again be presently seen, expressly saved from interference by purchasers at revenue sales, but it was obviously considered unnecessary to make any such provision for the grants made under the pre-settlement regulations because they were made by Collectors under express statutory authority as tenures at rents fixed in perpetuity. Section 33 of Regn. 43 of 1793 was expressly saved by Section 27 of Regn. 1 of 1804 and remained in force until both these regulations were repealed by Act 29 of 1871, but the repealing Act is not to affect "any right already acquired" or "any exemption affirmed, recognized or derived by, in or from, any enactment hereby repealed."

It must therefore apply to pre-settlement "invalid jagirs" notwithstanding Act 11 of 1859 on the principle generalia specialibus non derogant. If the. grant was made not under the pre-settlement regulations but under Regn. 43 of 1793 the position is even clearer.

Under Clause 1 of Section 5 of this Regulation, the Collector was to make a proposal to the proprietor to take a lease of the land on the part of Government on the terms specified in the following 19 articles. The land was to continue the property of the zamindar or other proprietor and was never to be seperated from his estate. The invalid grantees were to hold the land free of rent. On their death and after a certain interval of time which was varied by subsequent regulations and during which malikanah. only was to be paid to the propietor, their heirs were to hold the land on a rent to be paid to the proprietor which was not liable to any variation (Article:5).

If an invalid should die without heirs it was open to a fresh man coming upon the establishment to supply his place in the invalid thana and take the land as his heir (Article 7). The heirs could, instead of taking the lands, "dispose of their rights to any of the invalids belonging to the thana" (Article 8). The malikanah and rent was to be collected by the Collector and accounted for to the proprietor by credit being given him for the amount in part payment of his stipulated annual payments to Government and no increase of revenue was to be levied from the proptietor during the term of his engagement with Government on account of such rent or malikanah (Article 12). After "the permanent assessment" of the land a pottah was to be obtained from the proprietor, through the Collector, in the name of the possessor specifying inter alia "the terms of the tenure as above defined" (Article 13). On all the lands in a thana having become liable to the permanent rent or assessment Government were to withdraw the regulating officer and the thana was thenceforward to be

upon the same footing as other villages in the zamindaree or estate, the heirs and successors of the original grantees continuing to hold their lands upon the terms specified in their pottahs (Article 15);

and the proprietor was thenceforward to be at liberty to recover his rent by the process, (viz., distraint) prescribed in Regn. 17, 1793, in the same manner as from other persons holding lands upon pottahs (Article 16). Apart from such remarkable peculiarities of these "jaghirs" as the lease of Government, the transfer to other men coming upon the establishment, and other stipulations with Government, there is Section 6 of the Regulation with the marginal note: "Any person succeeding to an estate, in which lands have been leased to Government, to abide by the terms of the lease," the Section itself providing that if the estate....in which any lands leased to Government under this Regulation may be situated shall be disposed of at public sale....neither the lease of Government nor the terras of the tenures of the invalids, or their heirs or successors, are to be in any respect affected but the new proprietor is to be bound by the terms of the deeds in the same manner as the proprietor who granted them would have been, had he retained the property, "notwithstanding anything that may be said to the contrary in Regn. 44 of 1793, or any other Regulation passed on 1st May 1793."

Now, Regulation 44 of 1793 made a distinction between public sales for the discharge of arrears of the public assessment (Section 5) and other sales, whether public or private or transfers (Section 4). The effect of public sales for arrears was u/s 5, to cancel all engagements of the proprietors with their dependent talookdars as also all leases to under farmers and pottahs to ryots (a class of tenants which received increasing protection until the Rent Act 10 of 1859, discussed in the well-known Great Rent case--Thakooranee Dossee v. Bisheshur Mookerjee (1865) Beng LR Supp202) and the purchaser was to be

at liberty to collect....whatever the former proprietor would have been entitled to demand according to the established usages and rates of the pergunnah....had the engagements so cancelled never existed.

Although Section 6, Regn. 43 of 1793 excluded the application of Section 5 of Regn. 44 of 1793 to these invalid jaghirs, it is necessary to deal a little further with the latter Section in order to determine whether Section 37 of Act 11 of 1859 can affect invalid jaghirs granted after the Permanent Settlement. Regn. 43 of 1793 was replaced as a whole by Regn. 1 of 1804, Section 19 of which, with a view to establish, as nearly as may be practicable, a uniformity of system throughout the invalid thannahs, directed Collectors to endeavour to conclude agreements with the zamindars, rendering all lands then held by invalids (excepting the lands granted to invalids under the Regulations of 18th February 1789) subject to the conditions specified in Section 9 which, it is to be observed, are essentially on the same lines as in Section 5 of Regn. 43 of 1793, Section 10 of Regn. 1 of 1804 reproduces Section 6 of Regn. 43 of 1793 with the notable addition, at the end of the words "or on any subsequent date." Section 5 of Regn. 44 of 1793 itself was construed in such cases as Banee Surnomoyee v. Maharajah Sutteeschunder Roy Bahadur (1863) 10 MIA 123 and Khajah Assanoollah v. Obhoy Chunder Roy (1869) 13 MIA 317 to mean that the talookdar''s tenure was not avoided altogether upon a revenue sale but was only made liable to have its rent enhanced "according to the established usages and rates of the Pergunnah or district."

As the preamble to the Regulation shows, the Section was based on the consideration among others that it was "repugnant to the ancient and established usages of the country according to which the dues of Government from the lands (which consists of a certain proportion of the annual produce of every beegah of land, demandable according to the local custom in money or kind, unless Government has transferred its right to such proportion to individuals for a term or in perpetuity, or fixed the public demand upon the whole estate...are inalienable without its express sanction," to let enagagements made by proprietors with their talookdars and even ryots be binding on revenue purchasers. The italics are again mine, and have a bearing upon Article 12 of Section 5 and Section 6 of Regn. 43 already referred to. The same policy was expressly followed in the elaborate Revenue Sale Regn. 11 of 1822. Section 29 of this Regulation made what the marginal note calls a "declaration as to extent of right conveyed by sale," and Section 30 deals with the question of "undertenures, how affected by sale for arrears." The former Section negatived any claim of right founded on any act of the original engager or his representatives to affect the title and interest conveyed to the purchaser by the sale; and this, on the ground that

the act of sale transfers to the purchaser of the (property and privileges which the engaging party possessed...at the time of settlement, free from any accidents or incumbrances that may subsequently have been imposed,...the property and privileges possessed...being perpetually hypothecated to Government for the revenue assessed thereon. Section 30 made all tenures which may have originated with the defaulter or his purchasers...as well as all agreements with ryots...subsequently to the settlement...liable to be avoided and annulled by the purchaser of the estate...at the sale for arrears due on account of it...subject only to such conditions of renewal as attached to the tenure at the time of settlement aforesaid, saving always and except bona fide leases of ground for the erection of dwelling houses....

"and this was done" in pursuance of the principle of holding the estate of a defaulter answerable for the punctual realization of the Government revenue in the estate in which it stood at the time the settlement was concluded (at which time, by the dissolution of its previous engagements, Government must be considered to resume all rights possessed on the acquisition of the country, save where otherwise specially provided).

It will be observed that the Section refers not to the Permanent Settlement of Bengal, Behar and Orissa, but to the settlement of the particular estate, which did not take the assets of jagirs like ours into account. Regn. 11 of 1822 was replaced as a whole by the Bengal Land Revenue Sale Law, Act 12 of 1841, which, by Section 27, provided that the purchaser of an estate sold for the recovery of arrears in the permanently settled districts shall acquire the estate free from all encumbrances which may have been imposed upon it alter the time of settlement, and shall be entitled after notice...to enhance at discretion (anything in the existing Regulation to the contrary notwithstanding) the rents of all under-tenures in the said estate and to eject all tenants thereof with the following exceptions: first, tenures which were held as istemraree or mocurreree at a fixed rent, more than 12 years before the Permanent Settlement. The Section makes a difference between the Permanent Settlement and the settlement of the particular estate. It was reproduced in Section 26 of the next Revenue Sale Law, Act 1 of 1845, which replaced the Act of 1841 and in its turn made way for Act 11 of 1859, which only extended the saving of istemraree or mukarrari tenures to such as have been held at a fixed rent from the time of the Permanent Settlement. As) Sir James Colvile said in the case in Khajah Assanoollah v. Obhoy Chunder Roy (1869) 13 MIA 317

The general polioy of the Revenue Sale Laws that have been passed since the Perpetual Settlement has been to protect the public revenue by placing the purchaser of an estate sold for arrears of revenue in the position of the person who, at the time of the Decennial Settlement, engaged to pay the revenue then fixed. They therefore gave or sought to give to the purchaser, the power of abrogating all engaments made by the defaulting zamindar or his predecessors since the settlement, whereby the zamindary rents and profits, which were the security to Government for the due payment of its revenue, were diminished. The Indian Legislature however has not uniformly tried to effect this general object by precisely the same means. The various Regulations and Acts which it has from time to time passed for the purpose differ in the language of their provisions and in the stringency of the power conferred by them.

If these observations are borne in mind, there cannot be any doubt that Section 37 of the Act of 1859 was not intended to affect in any way the very special grants to invalided soldiers made under the Regulations of 1789 and 1793, the object of the Legislature from 1793 onwards having been to safeguard the public revenue by enabling the revenue purchaser to get rid of all engagements diminishing the security to Government which were entered into by the defaulting proprietor or his predecessors without lawful authority though under Article 15 of Section 5, Regn. 43 of 1793 (as under Article 8 of the Regulations of 1789) these jaghirs are placed on the same footing as other grants at a fixed rent, we must not, in considering whether they are among the under tenures liable to be annulled u/s 37 of Act 11 of 1859, overlook their origin, their statutory character as permanent mukarraris, and their express exemption from the effects of a revenue sale by Section 6 of the Regulation of 1793 which was emphatically affirmed by Section 10, Regn. 1 of 1804. It was not the policy of the Revenue Sale Laws to place the purchaser of an estate at a revenue sale in a better position than the person who, at the time of the Decennial Settlement, engaged to pay the revenue then fixed and who subsequently made these grants under the specific authority of Regn. 43 of 1793, without subjecting himself to an increase of revenue on that account (Article 12 of Section 5): see also Sir James Colvile''s observations in Forbes v. Meer Mahomed Hossein (1873) 20 WR 44 on the reasons for the statutory title of the revenue purchaser and its extent. The legislation of 1859 was clearly not intended to get rid of the permanent mukarrari character given to these grants by the old regulations, nor did it have the effect of repealing the special protective provisions previously enacted.