AI Structured Summary
Not yet generated for this judgment
Judgment
Venkatasubba Rao, J.—The suit which has led to this appeal relates to a village known as Ravicherla. It was granted to the ancestors of the
plaintiffs by a sannad issued by the Government dated the 2nd May, 1843. The grant contains two restrictive clauses one relating to the right of
succession which provides that Ravicherla shall be held in perpetuity by the grantees and only such of their heirs could take as the Government
might recognise for this purpose from time to time. The second clause, the one with which we are concerned in this appeal, imposes a restriction on
the right of alienation, no transfer of the village being valid unless the previous consent of the Government has been obtained authorising such
transfer.
The plaintiffs agreed to sell the property and the proposed vendee having regard to the second provision referred to above desired them to
obtain the consent of the Government to the sale. The plaintiffs accordingly requested the Government to give consent but the Government
declined to do so. The suit was then laid against the Secretary of State and the plaintiffs allege that the village though it was nominally granted by
the Government, was really acquired as a result of a family settlement, the Government merely acting as mediators in the matter. The plaintiffs urge
that in any event the clause in question imposing a restraint on alienation is void.
The Subordinate Judge agreeing with the plaintiffs gave them a decree and the Secretary of State has filed this appeal.
The following geneology will serve to explain the facts of the case:
Narayya Appa Rao.
|
________________________________|________________________________
| | |
Venkatanarasimha Ramachandra Appa Narasimha Appa Rao (son
Appa Rao, mar- Rao (son by 2nd by 2nd wife Subbamma)
ried Ramanamma wife Subbamma). |
(son by first wife |
Venkamma). |
|
|
(Nidadavole or Ellore (Nuzvid granted) |
granted) | |
| | |
| | |
Nariah Appa Rao (adopted) Sobhanadri |
(2nd son of Narasimha Appa Rao |
Appa Rao). |
|
|
________________________________________________|
| | |
| | |
Simhadri Appa Rao Nariah Appa Rao Venkatadri
(adopted to Venkata- Appa Rao
narasimha Appa Rao.) |
Raja Parthasaradhi
Appa Rao (1st plaintiff.)
The first point to be considered is, was the village granted to the plaintiffs'' ancestors by the Government or did they acquire it as a result of a
family arrangement?
The tacts that have to be considered in connection with this point mark an important epoch in the history of Nuzwid Zamindari.
Prior to 1800 A.D. the Estate had been transferred to Government management and in that year the Government determined to restore the
Zamindari and Sannads were issued in 1802 to Venkatanarasimha Appa Rao for the pargannahs in the Ellore Sircar now constituting the
Zamindari of Ellore or Niddavole and to Ramachandra Appa Rao for the pargannahs in the Condapalli Sircar now Constituting the Zamindari of
Nuzwid. Narasimha Appa Rao, the youngest of the three brothers was then a minor and for some reasons which it is unnecessary to go into his
rights were completely overlooked.
This, as might be expected, led to litigation which finally ended in the decree of the Sudder Court in 1819 which upheld the division of the
Zamindari in 1802 as an act of State with which the Courts of law would not be justified in Interfering. Narasimha then attempted to carry the
matter to the Privy Council but his circumstances did not permit him to do so and he at that juncture appealed to the Government.
The Collector, Mr. G.E. Russell, on the 16th of March, 1820 wrote to the Board of Revenue pointing out that it would have been more proper
if at the division of the Zamindari a pension had been secured to the claimant and suggesting that the Government might give him some allowance
for his maintenance. The Collector also referred to the fact that Narasimha was head and ears in debt and thus observed:
That the good intentions of the Government will therefore be frustrated unless anything which they may give him shall be protected from the fangs
of his creditors.
The Board of Revenue were averse to adopting the suggestion made by the Collector and the matter had to be finally settled by the
Government. Sir Thomas Munro the Governor of Madras strongly felt that the claim of Narasimha was substantially just and that he was deprived
of his lawful rights by the action of the subordinate Officers of the Government and that he failed to get adequate relief from the established Courts
of Law.
The Governor in Council so runs the Government Order, dated the 13th February, 1821, ""cannot entertain the idea that it is befitting for the
Government to look on with passive indifference at a claim like this or at the fate which attends it in Courts of Law.
The Government recognised that though they were under no legal liability they had in the matter a moral responsibility. I feel tempted to quote
the very words
The Government are answerable for the injury which he has sustained. They are answerable also for the ruin in which, owing to the ambiguity in
which they left his claims and to the course which their judicial institutions led him to adopt, he has been involved They are answerable for these
wrongs not before a Court of Justice, any more than they would have been if, in consequence of similar oversights, the country had been thrown
into disorder and the lives and properties of its inhabitants exposed to hazard. But their responsibility is matter of reason and of conscience and
should induce them to do all that is practicable to compensate for the wrongs which have been committed.
The Government having issued this order advised the Collector to prevail upon the Zamindars of Nidadavole and Nuzvid to make a settlement
with the claimant and intimated that if they failed to take a reasonable view the Government-might be constrained to adopt measures to give effect
to what must be presumed to have been their intention at the time of the grant of the sannads.
These events bring us up to 1821 and the material before us is silent as to what transpired between 1821 and 1829.
It would appear that by this time both the estates of Nidadavole and Nuzvid came under the Court of Wards, both Venkata Narasimha and
Ramachandra having died. Venkata Narasimha died having adopted Narayya and Ramachandra died leaving an only son Sobhanadri. No
settlement was effected and the Government resolved to adopt drastic measures and on the 10th of April 1829 requested the Sudder Court to
draft a Regulation revoking the sannads of 1802. Accordingly, Regulation IV of 1829 was passed on the 23rd of June declaring the sannads of
1802 to be void and empowering the Government to issue fresh sannads granting Narasimha a third of the whole estate. The Board of Directors
did not approve of the Regulation and its operation was therefore suspended. This takes us to the year 1829.
From 1829 to 1835 there is again a gap, but the cruciai events are those that happened subsequent to this period. The. facts that have been so
far narrated are important only as leading up to the events which I shall now set forth.
The contention of the plaintiff is that Ravicherla fell to his ancestors in a family settlement between the representatives of the three branches,
that though the village was acquired ostensibly under a grant from the Government, the source of title was in fact not the grant but the family
settlement and that therefore the restrictive covenants in the grant are void and of no effect. I shall show that this contention is utterly unfounded.
There is not the slightest doubt that Ravicherla was settled upon the plaintiff''s ancestors by the Governmenr and that the grant took the final shape
of the sannad dated 2nd May, 1843.
Narasimha died and his minor sons Simhadri and Venkatadri had come of age. Narayya and Sobhanadri had also taken possession of their
estates of Nidadavole and Nuzwid respectively. In 1835 the then Governor, Sir Frederick Adam, brought his personal influence to bear upon the
Zamin-dars Narayya and Sobhanadri and got them to consent to pay Narasimha''s sons Rs. 600 a month for their maintenance. On the 4th
February, 1835, two agreements were entered into, one relating to the debt due by Nidadavole to Nuzvid which is for the present irrelevant and
the other agreement related to three matters:
There was a debt due by Rainanamma, the widow of Venkata Narasimmam, to the Nuzvid estate. Sobhanadri agreed to give this up.
Narayya similarly waived his right against Sobhanadri in respect of properties that belonged to Venkamma, the mother of the late Venkata -
Narasimha.
Narayya and Sobhanadri agreed to pay the sons of Narasimha Rs. 600 a month, Rs. 400 to be paid by Narayya and Rs. 200 by Sobhanadri.
To these agreements the two Zamindars alone were parties and though a provision was made in favour of the sons of Narasimha they did not
execute the agreements. The documents filed in the case make it very clear that this arrangement was brought about by the direct intervention of
His Excellency the Governor (in Ex. F both Narasimha''s sons and the Zamindars say that these agreements were entered into ""in the presence of
the Right Hon''ble the Governor"").
So far it will be seen that there was no reference to Ravicherla. Under orders of the Governor, these agreements were on the 6th of February,
1835, sent on to the Collector. In the letter of that date, Ex. D, there is a reference to the fact that the Governor personally expressed to Simhadri
Appa Rao his approbation of the previsions made for the benefit of Narasimha Appa Rao''s sons. In the reply of the Collector that followed, dated
the 4th March, 1835, we find for the first time a reference to Ravicherla. The matter was raised in this way: Narayya by the agreements referred to
waived his rights to the properties of Venkamma in favour of Sobhanadri. Ravicherla was one of the properties that belonged to Venkamma. The
Collector asked: Would not the surrender in favour of Sobhanadri enure also for the benefit of the sons of Narasimha? The question was raised
and it was left open. Mr. Venkatramana Rao, the learned vakil for the plaintiff, with great resourcefulness and ability argued that this showed that
Ravicherla fell as a result of the agreement to Simhadri. But a perusal of the documents will show, as I have said, that this contention is quite
unsound. The Collector merely stated what he believed to be the fact and did not speak from personal knowledge. The question regarding
Ravicherla was finally settled by the Government Order, dated the 10th November, 1836. It says:
The Right Hon''ble the Governor in Council observes that at the time arrangements were made for adjusting the disputes between the Zamindars
of'' Nidadavole and Nuzwid it was distinctly understood and repeatedly explained to them that the Mokhasa village of Ravicherla had lapsed to
Government.
I have already pointed out that His Excellency the Governor was personally present and took part in the arrangements and this minute clearly
records that it was distinctly understood that Ravicherla was the property of the Government. If this be so Ravicherla could not have passed to
Sobhanadri under the arrangements referred to.
The matter is made even clearer by the subsequent proceedings. The sons of Narasimha were sent for by the Collector and they refused to
accept the terms offered by Nidada vole and Nuzvid. Some months were thus wasted. They again appeared and expressed their willingness to
agree to the terms, provided the Government granted to them for their support three small villages. This was before the minutes of consultation,
dated the 10th November, 1836. After the Government had decided that Ravicherla had lapsed to them, the Collector conceived the idea of
recommending to the Government the desirability of conferring upon the sons of Narasimha the villages of Ravicherla, Madaca and Roodravaram.
Then after a short interval the Collector suggested Sriramavaram in lieu of the villages of Madaca and Roodra-varam. These events must be
carefully followed in their chronological order. Ex. E, the letter of the Collector, dated the 23rd of May, 1837, sets forth very clearly the facts
which I have referred to I will quote three passages from it.
The terms on which he grounded his acquiescence were that three small villages might be bestowed upon him for his support on the part of the
Government independent of the pension to be granted by his brothers ot Nuzwid and Nidadavole.
Shortly after this occurred, the right to the village of Ravicherla became a subject of enquiry and was ultimately assumed and appropriated by
Government under their orders, dated 10th November, 1836, and the idea was then awakened of recommending to Government the propriety of
conferring it together with the villages of Madaca and Roodravaram upon him.
In making this recommendation I am perfectly aware that Sim-hadri Appa Rao will be indebted to the beneficense of Government solely for it
not to any personal or private claim but to the operation of those feelings of sympathy which influences Government in all its acts.
Can there be any doubt after this, that before even the idea of settling Ravicherla came to be conceived, it had been unequivocally declared ''
that the village was the property of the Government?
The matter, however, does not stop here. The two Zamindars as well as the two sons of Narasimha appeared before the Collector in
September 1837, that is about four months after the letter of the Collector referred to above. Simhadri gives a writing, dated the 15th September,
and Venkatadri, the other son of Narasimha, a writing, dated the 23rd September. Simhadri says:
It is necessary that I should give my unconditional and unreserved agreement in accepting the said allowances, when your (Collector''s)
recommendation in my favour would be taken into consideration.
What is the recommendation that is referred to? It is obviously the grant of Ravicherla and Sriramavaram by the Government. Again Simhadri says:
I fearlessly accept the terms proposed by the Board... submitting in every respect to such terms alone as Government in their justice may be
pleased to extend to me.
Venkatadri in the writing signed by him, agreed to the terms contained in his brother''s letter.
The four letters signed by the Zamindars and the sons of Narasimha formed enclosures to the communication of the Collector, dated the 5th
October, 1837, to the Board of Revenue. The Collector says:
I have pledged myself (without which I. could not have effected the present arrangement) that Government to mark their satisfaction at the good
understanding which has taken place between the brothers will make ever to Simhadri Appa Rao the villages of Ravicherla and Sriramavaram
alluded to in my former letter under date the 23rd of May last.
It is impossible to contend in the face of this very clear evidence that Ravicherla was not the property of the Government at the time of the
grant.
I may, however, trace the subsequent history of these negotiations. On the 17th of November, 1837, the Government decided finally to grant
these villages to Narasirnha''s sons (see Ex. G.). The Board directed the Collector to insert in the sannads conferring on them these two villages, a
proviso that the lands should not be liable for any of their debts. The Governor-in-Council approved of this suggestion of the Board of Revenue.
Simhadri and Venkatadri desired that the exemption should extend also to the allowance agreed to be paid by Nidadavole and Nuzvid. The
Officers of the Government could not accede to their wishes because in the words of Ex. IV dated the 20th September, 1838, the allowances ""do
not immediately emanate from the Government"". In the enclosure to Ex. IV Simhadri referred to Ravicherla and Sriramavaram as villages conferred
by the Government and requested that the clauses should be inserted in the sannad. The contrast is very marked when he referred to the allowance
as payable by Nidadavole and Nuzvid in regard to which also he desired that restrictive clauses should be inserted. It is unnecessary to refer to the
further correspondence in the matter. Ex J is the sannad, dated 2nd May, 1843. This refers to the Government Order, dated the 10th November,
1836, by which Ravicherla reverted to the Government. There is further a reference to the arrangement, dated the 4th February, 1835, and it is
clearly stated that at that time there was ""a distinct understanding and repeated explanations,"" in pursuance of which Ravicherla lapsed to the
Government. This sannad clearly states also that it was the Government that settled the village upon Simhadri and Venkatadri.
There can, therefore, be no doubt that it was by reason of the grant that the ancestors of the plaintiff acquired Ravicherla and that the source of
their title is not a family settlement between the representatives of the three branches. The question does not admit of doubt but owing to the very
strenuous argument addressed to us on this subject I have dwelt on this point at this length.
This disposes of the question of fact raised in this case. I have come to the conclusion that the Subordinate Judge''s finding is wrong and must
be reversed.
Then remain the points of law that have been raised and I shall now deal with them.
It is first contended that the restrictive covenant in question is void. This would be so under the general law but grants from the Crown arc
governed by the Crown Grants Act (XV of 1895). Doubts having arisen as to the power of the Crown to impose restrictions upon grants made by
it, the Act was passed to remove such doubts.
Section 2 makes the Act have a retrospective effect. It says:
Nothing in the Transfer of Property Act shall be deemed over to have applied to any grant heretofore made by or on behalf of Her Majesty the
Queen Empress or her heirs or successors; but every such grant shall be construed as if the said Act had not been passed.
Section 3 enacts:
All restrictions contained in any such grant shall take effect according to their tenour, any rule of law to the contrary notwithstanding.
I am here quoting only the material portions of the sections.
The.contention advanced is, that the grant was not made on behalf of the Crown and that the Act will not therefore apply to it. The argument is
put in this way. In 1858 the Sovereignty of India was for the first time assumed by Her Majesty, it had previously vested in the East India
Company. The grant having been made in 1843, it would not be deemed to have been made on behalf of the Crown. If it had not been made on
behalf of the Crown, the Crown Grants Act is inapplicable.
Let me examine if this contention is sound. At the time of the grant, the Charter Act that was in force is that of 1833 (3 & 4 Will; IV, c. 85). I
shall first take the preamble. It recites that the East India Company have consented that all their rights in the territories and territorial and
commercial assets and property shall be placed at the disposal of the Parliament. It further recites that it is expedient that the territories now under
the Government of the said Company be continued under such Government, but in trust for the Crown discharged of all claims of the Company to
any profit therefrom, to their own use. The first section of the Act gives effect to the intention expressed in the preamble.
If the Government by the East India Company was thus in trust for the Crown of the United Kingdom, does it not follow that the grant made
by the Company should be deemed to be on behalf of the Crown? But the plaintiff''s learned vakil objects that a trustee does not act ""on behalf of
his beneficiary and the act of the East India Company cannot therefore be deemed to be an act on behalf of the Crown. The answer is that the
word ''trust'' is not used in the Charter Act in its strict technical sense and it will be far-fetched to hold that because the word used is ""trust,
therefore the law of trusts as strictly understood should govern the relations of the Company and the Crown. This could not be the intention of the
legislature and I am unable to accept the argument.
In this connection, I may notice another argument advanced by the plaintiff''s learned vakil. He contends that u/s 1 of the Charter Act of 1833,
what is vested in the Company in trust for His Majesty are ""the lands and hereditaments, revenues, rents and profits of the said Company"" and not
the territorial acquisitions and revenues "". This objection is not in my opinion sound; even granting it is, it does not avail the plaintiff; for, what was
granted, is in any event, the land of the Company.
Is the objection then sound? I may now glance at the provisions of the earlier and later Charter Acts. In the Act of 1853 (16 & 17 Vic. c. 95)
the first section provides that all the territories in the possession and under the Government of the East India Company shall continue under such
Government in trust for Her Majesty. The word ""continue"" is in this connection significant.
The Act of 1858 (21 & 22 Vic. c. 106) refers in similar terms to the government of the territories being vested in the Company in trust for Her
Majesty. It is by this Act that the Government is transferred to Her Majesty. The statute makes it clear that the rights previously vested in and
exercised by the Company in trust for the Crown, shall thenceforth become vested in and be exercised in the name of Her Majesty. This shows
beyond all possibility of doubt that it was the Crown that was previously the Sovereign and that the rights were exercised by the Company for the
Crown but that subsequent to the passing of the Act the Crown directly exercised those rights and not through the medium of the Company.
The Royal Titles Act of 1876 (39 Vic. c. 10) has been relied on by the plaintiff. It is urged that it refers to a transfer of Government and the
word ""transfer"" implied that the Crown did not previously possess sovereign rights. It is impossible to uphold this contention, for the very section
referred to by the plaintiff'' s learned vakil re-affirms the position that previous to 1858 the Government of India had vested in the East India
Company in trust for Her Majesty.
Now turning to the earlier Charter Act of 1813 (53 Geo. III, c. 155) we find that the sovereignty of the Crown was clearly emphasised and it
is affirmed that the territorial acquisitions are under the Government of the Company ""without prejudice to the undoubted sovereignty of the
Crown"".
The view I have taken derives support from the observations of the Judicial Committee in Secretary of State v. Kamatchi Boye Sahaba (1859)
7 MIA 476. their Lordships refer to the powers of the East India Company as delegated powers of sovereignty and at page 540 they refer to the
Company as the delegate of the British Government.
In Haji Muhammad Nasur-ud-din Khan Bahadur v. Ekambara Mudali (1906) 2 MLT 55 Subramania Aiyar and Benson, JJ. assumed (the
question was not raised) that the Crown Grants Act applied to a grant of 1848. In Sheo Singh v. Raghubans Kunwar (1905) 15 MLJ 352 there is
no discussion but the Act was held to apply to a grant of 1861.
The contention raised is in my opinion unsound and must be rejected.
The next contention of the plaintiff is, that the reference to Her Majesty the Queen in the Crown Grants Act, as ""The Queen Empress
indicates that the Legislature intended that the Act should apply only to grants subsequent to 1876 when that title was assumed by Her Majesty.
This distinction is too refined and unsubstantial and I cannot possibly accept it. Long previous to the Crown Grants Act, the title of the Queen
Empress had become firmly established and it seems unsafe to found an argument on the mere fact that in referring to Her Majesty the words
Queen Empress"" are added. It would be both usual and natural to speak of Her Majesty as the Queen Empress and much stronger ground, I
should imagine, must be shown, for limiting the scope of the act in the way suggested.
The next contention advanced by the plaintiff''s learned Vakil is, that the Crown Grants Act is ultra vires of the Indian Legislature.
It is urged that the Crown cannot create an estate unknown to the law and that the estate created by the grant is of this description. Mr.
Ananthakrishna Iyer the learned Government Pleader answers that this is not an estate unknown to ordinary law, and relies upon the passage at
page 487 of Vol. VI, Halsbury''s Laws of England.
A grant by the Crown may contain a condition against alienation.
His second answer is, that this estate is in any event not-unknown to the Indian Law and in support of this he cites Gulabdas Jugjivandas v.
The Collector of Surat ILR (1878) 3 Bom. 186. In the view I have taken it is unnecessary to deal with these points. Granting that the Crown
cannot create an estate of this kind, the Crown Grants Act expressly confers this power upon the Crown and this leads to the consideration of the
question whether the Crown Grants Act is ultra vines of the Indian Legislature.
Section 22 of the Indian Councils Act, 1861, enacts that the Governor-General in Council shall have power to make laws for all persons and
for all places and things in the Indian Territories. But the plaintiff relies upon the proviso that the Governor-General in Council shall not have the
power of making any laws which may affect the authority of Parliament. How does the Crown Grants Act affect the authority of the Parliament?
The prerogative of the Parliament remains unaffected and notwithstanding the Act, it can create estates unknown to the law. Further, if the
Parliament itself could have passed the Statute, why should not the Indian Legislature created by an Act of the Imperial Parliament, have the same
power? As observed by their Lordships of the Judicial Committee in Empress v. Burah ILR (1879) C 172 the Indian Legislature has powers
expressly limited by the Act of the Imperial Parliament which created it and when acting within the limits prescribed, it has plenary powers of
legislation, as large, and of the same nature as those of the Parliament itself.
See also Hodge v. The Queen (1883) 9 AC 117 and Powell v. Apollo Candle Go. (1885) 10 AC 282.
The contention therefore that the Act is ultra vire, fails.
It is lastly urged that the sannad contravenes the provisions of Section 8 of Madras Regulation XXV of 1802, which provides that proprietors of
land shall be at free liberty to transfer their rights without previous consent of the Government. But this Regulation does not apply, because, in the
first place, there was no permanent assessment of the land revenue, no revenue having been imposed at all in regard to this grant; secondly, the
Government did not purport to act under the regulation nor was the intention of the parties that the sannad should be issued under it. The fact that
the sannad was granted after the date of the Regulation does not necessarily make it a sannad issued under the Regulation. And the mere use of the
words "" Sannad-i-milkiyat-i-istimrar "" does not show that the Regulation governs the sannad. See Secretary of State v. Rajah of Venkatagiri
(1921) 41 MLJ 624; thirdly, the form of the grant is not that prescribed for sannads under the Regulation. Why should a grant then not made under
the Regulation, be by a fiction treated as made under it and why should it be assumed by so treating it, that provisions of the Regulation were
deliberately infringed?
I therefore hold that this contention also is untenable.
As I have said in an early part of this judgment, the question that has been raised is in regard to the validity of the covenant imposing a
restriction on alienation. No argument has been addressed to us in regard to the other restrictive covenant as no question bearing on it arises in the
case and I do not desire (and indeed it is unnecessary to do so) to say anything at present regarding that covenant.
I have now dealt with all the points urged on behalf of the plaintiff. As T have rejected all his contentions, the appeal must be allowed and the
suit dismissed with costs throughout.
Srinivasa Aiyangar, J.
My learned brother and myself have practically heard this appeal twice over and after giving the case my very careful consideration, T have also
come to the conclusion that the appeal should be allowed.
The appellant is the Secretary of State for India in Council. He was the defendant in the original suit from which this appeal arises instituted by
the present Rajah of Badra-chalam and his sons as plaintiffs as owners of a village called Ravicherla and situate in Kistna District. The action was a
curious one. The reliefs prayed for were that it should be declared that the plaintiffs were '',absolutely entitled to the village of Ravicherla and to
dispose of the same, that the sannad issued in respect of the said village should be construed and it be declared that Clause 3 of the same is void,
illegal and invalid and not binding on the plaintiffs, that even if it were held that the consent of the Government is necessary (for the plaintiffs
disposing of the said village), the Government have no right to withhold their consent arbitrarily.
It may be convenient to dispose of the claim put forward in the last of the prayers above referred to. On the face of it, it is merely an alternative
prayer and it is to the effect that if the Court should find that Clause 3 is not invalid or illegal and that the same was binding on the plaintiffs, still it
should be declared that the Government had no right arbitrarily to refuse to consent to any alienation that may be attempted to be made by the
plaintiffs. The suggestion of the plaintiffs with regard to this matter must obviously be that the Government was under some sort of obligation to
exercise a proper discretion in according or refusing the permission that might be applied for by the plaintiffs to alienate the property and that in
declining to accord such permission as''stated in paragraph 8 of the plaint without assigning any reasons the Government acted arbitrarily and
therefore illegally. No argument was addressed to us and no grounds advanced or referred to on behalf of the plaintiffs-respondents for
establishing that the Government was under any such obligation not to exercise its discretion arbitrarily or that they were bound to give any reasons
for declining to accord the permission applied for. The third issue in the case was: ""Whether the Government acted arbitrarily in not stating the
reasons in refusing sanction for the alienation and if so what is the effect thereof."" This issue was found against the plaintiffs by the Lower Court,
and that finding was not attacked in the argument before us. The Subordinate judge, however, found the other issues in the case in favour of the
plaintiffs and granted a decree declaring the right of the plaintiffs to alienate the property without any previous permission of the Government. It is
against this decree that the appeal has been filed on behalf of the defendant, the Secretary of State for India.
I have found some difficulty in understanding the judgment of the learned Subordinate Judge in the Court below. In paragraph 1.2 of his
judgment he states thus: ""If the grant is to be considered as having been made by the Government, there is nothing illegal or invalid or void and
inoperative in the conditons imposed by the Government. "" This view would seem to be qualified by him in the next paragraph of his judgment
where he states thus: ""The village of Ravi-cherla was held under Sarva Mukhasa tenure by Venkamma. The mere resumption of that village by
Government cannot alter its nature. In the hands of the Government it was an absolute estate (one on an absolute) and permanent tenure.
It was made over to the plaintiff''s ancestors under Ex, J and the restrictions imposed were intended as a cloak to shield the properties from the
fangs of the creditors at the time but not to limit the nature of the estate given over. The plaintiffs hold the village on an absolute permanent tenure.
Two arguments would seem to be indicated in the above extract from the learned Subordinate Judge''s judgment and these are (I) because the
village had been granted on Sarva Mukhasa tenure, even in the hands of the Government the village was only Sarva Mukhasa and the Government
had no right to re-grant it to any other person except as a Sarva Mukhasa, that is to say, according to the Subordinate judge, on an absolute and
permanent tenure, and (2) that the condition in respect of alienation was not really intended to be operative as between the grantors and the
grantees but was intended to be merely a cloak to shield the properties from the fangs of the creditors. There are obvious difficulties in the way of
accepting either of these views. In fact 1 did not understand the learned vakil for the respondents to argue for either of these two positions. There
is absolutely no warram for supposing that even after resumption any conditions or characteristics of the tenure on which it had been previously
granted continue attached to any property. And 1 further fail to see on what grounds the learned Subordinate Judge supposes that even after
resumption the absolute owner of property, as he recognised the Government of the day to be, had no right to make a fresh grant of the property
to some other person on a different tenure or on terms and conditions different to the previous grant. Sarva Mukhasa tenure is supposed by the
learned Subordinate Judge to be absolute property, but apparently it was of a resumable nature. I can see no principle or reason for any of the
suppositions made by the learned Subordinate Judge'' with regard to this aspect of the case. As to the second point-above referred to, the view
that the learned Subordinate Judge took would appear to be that Clause 3 in the sannad restraining alienation by the grantee except with the
permission previously obtained from the Government was not really intended to be operative as between the parties to the grant and was to be in
the grant merely as a cloak to save the property from the fangs of the creditors. It is one thing to say that a particular clause in a document was put
in with the object or purpose of saving the property from the fangs of creditors and another altogether to say that it was never intended to be
operative or binding between the parties. Assuming that a condition was inserted in a grant with a particular object it does not follow that the
condition is valid or operative only to the extent of securing or subserving the particular object had in view. It cannot be open to parties to a
document to contend that in spite of the clear terms of a particular clause in a document such clear terms should be allowed to be controlled or
modified by the avowed object with which the clause was inserted. It is no doubt true that the clause appears to have been inserted in the sannad
with the primary object of saving the property from the creditors of the grantees; but the restriction imposed was not that it was incapable of being
taken, sold or otherwise dealt with in execution of a decree or at the instance of creditors but that the grantees should have no power to alienate
the property. It is therefore clear that what was done was to secure the intended object only by restraining the power of voluntary alienation by the
grantees and obviously therefore to protect the property not only from the creditors but to protect the grantees against themselves. In these
circumstances I cannot agree with the learned Subordinate fudge that the clause was not intended to be operative as between the grantors and the
grantees.
As regards the theory of the clause being a mere cloak, 1 must take it that what the learned Subordinate Judge means is that the clause being
void and'' inoperative was intended merely as a cloak, that is, as something calculated and designed to conceal the truth, namely, the real
alienability of the subject-matter of the grant. It is only therefore, if, as a matter of fact, the clause restraining alienation was invalid and the subject
of the grant was really alienable that the explanation of the clause as a cloak woud be of any value. The main question therefore for determination in
this appeal is whether the condition against alienation contained in Clause 3 of the sannad is valid and binding on the grantees and this indeed was
the question with regard to which the learned vakil for the respondents addressed all his argument. It was put in two ways. The first contention
might not inaccurately be described as an argument on the facts. It was said that though there was a formal sannad given by the United East India
Company, the Government for the time being, to the grantees, the ancestors of the plaintiffs, still, the plaintiffs'' ancestors did not obtain the
property under or by virtue of the grant but the property was either their own and if not was obtained by them as the result of a family agreement
made by and between their branch and the other branches of their family. Very able and ingenious was the argument advanced by the learned vakil
for the respondents on this aspect of the case. The contention itself is formulated by the plaintiffs in paragraphs 4 and 5 of their plaint in the
following terms:
Sree Raja Venkatadri Appa Rao Bahadur and Sree Raja Simhadri Appa Rao Bahadur the father and uncle respectively of the first plaintiff herein
were entitled to a share in the Nuzwid Zamindari. At the original partition of the said estate which took place in or about 1770 they were excluded
by mistake. The first plaintiff''s father and uncle pressed their claims to the said Zamindari. The then Government of Madras interceded and in or
about 1835 a settlement was-arrived at and in and by which it was inter alia agreed that the village of Ravicherla should be granted to the plaintiffs''
father and uncle on an absolute and permanent tenure. In pursuance of the said settlement in or about 1840 the said Village was granted to the first
plaintiff''s father and uncle on an absolute and permanent tenure and put in their possession. Three years thereafter in or about 2nd May, 1843, a
sannad, one milkiet-istimrar was granted in respect of the said property.
The real import of this contention is, I take it to be, that the plaintiffs'' family obtained the property not from the Government, that the
Government had not the property in them to give it away, that it was property which was at any rate in the order and disposal of the other branch
of the plaintiffs'' family, and that the plaintiffs'' branch of the family obtained it not as the result of any grant by the Gv)vernmcnt but as the result of a
family arrangement between the different branches of their family, and that therefore the san-nad which was granted in respect of the village of
Ravicherla subsequently by the Government and accepted by the plaintiffs'' branch of the family was not the real source of the plaintiffs'' title to the
property was a mere sham deed and should not t>e looked to for the purpose of determining the plaintiffs'' rights. If on the facts I should have
been disposed to agree with the contention, it might become necessary to consider whether assuming that the plaintiffs'' predecessors obtained the
property as the result of a family arrangement between them and the other branches of their family, still, the acceptance by them of the sannad in
question from the Government could affect their rights to the village and if so in what manner and to what extent, and whether in that view the
clause in question would or would not be binding on them. But in my view, it is unnecessary to consider that question because after a carc-
furconsideration of all the documentary evidence in the case, that is to say the only evidence before us, it is clear that even on the facts the
contention put forward on behalf of the plaintiffs-respondents could not be accepted. For some reason into which for the purpose of this appeal it
is unnecessary to enquire, the Nuzvid Zamindari was at the time of the permanent settlement early in the last century settled by the then
Government not on all the branches of the family but on two of its branches alone excluding the branch to which the plaintiffs belonged. In
consequence of this the plaintiffs'' branch of the family launched on a protracted but unsuccessful litigation for the purpose of recovering from the
other branches of then"" family their share or alleged share in the Zamindari. After however all this litigation was over, it appears to have been
realised by some of the authorities of the Government at the time that the original settlement of the Zamindari to the exclusion of the plaintiffs''
branch of the family was due to some mistake and that something-should be done to repair the injustice if only in consideration of the helpless
condition in which the plaintiffs branch of the family then was. We thus find in Ex. III that Mr. Russell, Collector of Masulipatam at the time,
addresses the Board of Revenue in the following terms:
Throughout the whole of the correspondence which passed on this subject there does not appear to he the slightest trace of it ever having been
proposed or intended, to grant a part of the lands to the petitioner; and I confess it seems to me that the only possible blame which the
Government can take to themselves for the manner in which the}'' disposed of the country is the omission to secure the petitioner a pension similar
to those assigned to some others who were in like situations. That this omission has involved him in great distress is certain and it is no less true that
he now established denial of his having had any hereditary right to the lands must for ever preclude him from obtaining relief from his brothers by
declaring the Zamindari to have been acquired by them. Under these circumstances, therefore, and more particularly as my official situation
rendered it my duty to oppose his claim in its progress through the Courts, I shall feel happy if my present address should be the means of inducing
the Government to give him some allowance for his maintenance. But I should not omit to mention that the facility with which the unfortunate
decree of the Provincial Court enabled him to borrow money has plunged him over head and ears in debt to persons who hoped to profit by his
obtaining a share of the country and that the good intentions of the Government will therefore be frustrated unless anything which they may give him
shall be protected from the fangs of his creditors.
The Board of Revenue, however, as will be seen in Ex. II, did not take a favourable view of the recommendations of the Collector because
they still believed that though not in the Zamindari yet in the other properties of the joint family the plaintiffs'' branch might have a right and that in
any case to seek to make a provision for the plaintiffs'' branch of the family might constitute a dangerous precedent with respect to the members of
Zamindari families all over the country. But the Governor in Council at the time would appear to have taken a refreshingly humane view of the
situation as will be seen at the concluding portion of Ex. A where the following passage appears:
The Governor in Council cannot entertain the idea that it is befitting for the Government to look on with passive indifference at a claim like this or at
the fate which attends it in Courts of Law. It is not sufficient for the Government that, in the manner of restoring the Zamindari they exercise a
discretion which nobody had power to question, that no law has been infringed in the treatment which Narasima Appa Rao has met with, and that,
if he had received better legal advice, the ruin in which he has been involved might have been less complete. The Government must not merely let
the law take its course, but must exercise a paternal care over the people. It has to preserve their affections as well as its own authority. In
reviewing the circumstances of the case under consideration, it appears clearly that Narasimha Appa Rao has been cut off from the provision to
which he had an equitable claim. The Government are answerable for the injury which he has sustained. They are also answerable for the ruin in
which, owing to the ambiguity in which they left his claims and to the course which their judicial institution led him to adopt, he has been involved.
They are answerable for these wrongs not before a Court of Justice, any more than they would have been if, in consequence of similar oversights,
the country had been thrown into disorder and the lives and property of its inhabitants exposed to hazard. But their responsibility is matter of
reason and of conscience and should induce them to do all that is practicable to compensate for the wrongs which have been committed. Whether
fresh legal proceedings should be instituted is a question of prudence to be determined according to their probable result. But the Governor in
Council trusts that the necessity of legal proceedings may be suspended by the influence of the Collector. If out of the revenues of the Zamindari an
adequate provision is made for the future support of Narasimha Appa Rao, and a composition effected with his creditors, the further interference
of the Government will not be required. But if the Zamindar be advised to rest secure in the terms of the Government grant, it will then remain to be
considered what measures will be most advisable with the view of giving effect to what must be presumed to have been the intentions of the
Government when that grant was made.
In Ex. A-1 the Government asked the Collector of Masuli-patam to point out that both in honesty and in law at least a proper maintenance
should be settled on the plaintiffs'' branch of the family and asked the Collector to explain these sentiments of the Government to the Zamindar and
express the anxious hope of the Government that he should lose no time in proposing such effectual relief as may remove from the plaintiffs'' branch
of the family the distress they were in. "" This was in February, 1921. But apparently the Collector was not able to achieve anything by persuasion
and we find from Ex. B that the Government finding themselves unable to bring the Zamindars to any reasonable settlement required the Judges to
suggest ways and means of setting right the injustice perpetrated at the time of the permanent settlement, and thereupon steps were taken for
making and approving of a draft regulation respecting the Nuzvid Zamindari to set aside the inequitable division at the time of the permanent
settlement and to bring about another settlement giving a share to the plaintiffs'' branch of the family. This draft regulation is Ex. C-1. Though this
was got ready about June, 1921, in September following the other council would appear to haw prevailed and the Government asked the Board of
Revenue in Ex. C-3 that no measures be taken for carrying into effect the proposed regulation.
It was after this as may safely be surmised from Exs. VII and D that the Governor of Madras some time early in the year 1836 personally
settled all the disputes and differences between the various branches of the family and persuaded the other two branches of the family to confer a
pension for maintenance of a sum of Rs. 600 per mensem on the plaintiffs'' branch of the family. (See Ex. D-1). The point in this discussion with
regard to this pension is that it was refusal to be accepted by the plaintiffs'' branch of the family at first and as a condition for accepting the same
they stipulated for a grant to them of three small villages from the Government independent of the pension to be granted by their brothers of Nuzvid
and Nidadayole. (See Ex. E). In Ex. F bearing date the 16th day of October, 1837, the Collector of Masuli-patam, addressing the Board of
Revenue, states that he could not have persuaded the plaintiffs'' branch of the family to accept the arrangement regarding the pension without
pledging himself that the Government, to mark their satisfaction at the good understanding which has taken place between the brothers, will make
over to Simhadri Appa Rao the two villages of Ravicherla and Sreeramavaram. It is also significant that in the documents obtained by the Collector
from the other two branches of the family with regard to their final undertaking of the obligation to pay the pension agreed to there is not the
slightest reference to the village of Ravicherla or the settlement of the same on the plaintiffs'' branch of the family. From the terms of Ex. VII it is
abundantly clear that even at the time of the original settlement of the disputes and differences between the various branches of the family it was
distinctly understood and repeatedly explained to the Zamindars of Nidadavole and Nuzvid that the Mukhasa village of Ravicherla had lapsed to
the Government, and, that it had been even prior to that date attached by the Collector, as being the property of the Government.
Ex. G speaks of the sannads to be granted by the Government with respect to the villages of Ravicherla and Sreerama-varam as conferring the
villages on Simhadri Appa Rao. Again in the Arzee, dated 17th August, 1838, submitted by Rajab Simhadri Appa Rao Bahadur to the Collector
of Masulipatam he speaks of the cowle to be granted to him ''for the villages of Ravicherla and Sreeramavaram conferred on him by the
Government. Again later on in the same document he states as follows with reference to the contemplated provi sion regarding the preventing of
alienation of property:
The provision which the Hon''ble Government have thought proper to make in the cowle that the above villages are not to be liable for sale on
account of the debts contracted by my father Rajah Narasimha Appa Rao and myself prior to the date of the grant, will secure to me the villages
benevolently Conferred by Government for my permanent subsistence in consideration of the distressed condition of my family.
It is also significant that one of the provisions finally agreed to be inserted in the sannad as the result of the negotiations between the plaintiffs''
family and the Government was that the succession to the village should devolve upon such of the heirs of the present grantees as the Government
may determine after their death. S.ee Exs. V and H
Again in Ex. J the sannad in respect of the suit village, the recitals contained in clear terms a reference to the village of Ravicherla having
reverted to the Government.
All this mass of documentary evidence makes it abundantly clear that the village of Ravicherla was dealt with at the time of the sannad as
property which had reverted to the Government and become vested in it, so as to be capable of being disposed of by the Government at their
pleasure. When the question arises as regards the ownership of property in some ancient period the evidence afforded by such unimpeachable
ancient documents should, it seems to me, be accepted beyond question. I may indeed go further and state that the language of most of these
documents is absolutely inconsistent with the contention put forward on behalf of the respondents that the village of Ravicherla did not belong to
the Government but was the property which still at the time of the grant vested in the other branches of the family and that all the documents
including the sannad were elaborate devises for the purpose of effecting curious camouflage and making it appear that the property belonged to the
Government in order that they may insert in the sannad restrictive provisions regarding the inheritance to and the disposal of the village. I am further
satisfied that if what was intended was such an elaborate device the language used would have been entirely different to that employed in the
documents. I feel, therefore, bound to reject the contention that the village of Ravicherla was not a grant to the plaintiffs'' family by the Government
and that the plaintiffs'' family acquired the property not as the result of any such grant from the Government but as the result of a family arrangement
with the other members of the family. I also fail to see how, if indeed all the parties at the time agreed to the village of Ravicherla being treated as
the property of the Government for the purpose of its being granted on the terms set out in the sannad to the plaintiffs'' family, it could now be
contended that there was no such title in the Government to impose any such conditions. However, as I have already observed, it is unnecessary,
in view of the decision I have arrived at, that the grant was by the Government itself, which had the property vested in it at the time so as to enable
it to make the grant, that there should be any further consideration of the legal effect of the plaintiffs'' family having accepted a sannad in respect of
the village from the Government and having purported to continue to hold it under the terms of the sannad till the other day when they applied to
the Government for permission to alienate the property, a permission which was refused.
But this conclusion does not dispose of the case, because it is only a conclusion with regard to what may be said to be the argument based on
facts. But assuming that the sannad should be deemed or regarded as the source of the plaintiffs'' title to the village in question and that therefore
the nature and extent of the rights with regard to the prayers in the plaint should be determined by the sannad itself and the terms therein set out, the
contentions were even more ingenious and strenuous which were put forward by the learned vakil for the plaintiffs to establish that the plaintiffs''
right to the village should be adjudged to be absolute and untrammelled by any conditions.
The first argument had reference to the Crown Grants Act (XV of 1895). It was not in its true nature so much an argument as an answer by
way of anticipation. The learned vakil for the plaintiffs assumed that for the defendant the Crown Grants Act will be referred to and relied upon as
enabling or justifying the alienation and began by assailing it in limine. But looking at the preamble and considering the purpose of the Act it cannot
be doubted that the Act was rather declaratory in its nature than enabling or enacting. It had to be enacted, so says the preamble, because doubts
have arisen as to the extent and operation of the Transfer of Property Act of 1882. Prior to the Transfer of Property Act, there was no statutory
enactment of the Indian Legislature regulating transfers of property. But after that Act was passed apparenly doubts came to be expressed or
entertained whether that was an Act governing transfers of property by act of parties whom subjects of Crown or whether the provisions of the
Act applied also to transfers of property by the Crown. Taking the terms of the Crown Grants Act, the inference seems to be irresistible that prior
to the Transfer of Property Act there was no doubt whatever as to the power of the Crown to make a transfer of property in any terms, or under
any of the conditions whatsoever. Apart from one argument which shall be referred to hereafter, the learned vakil for the plaintiffs did not refer to
any limitations on the power of the Crown to create or transfer estates previous to the passing of the Transfer of Property Act. The personal law of
the Hindus or Mahomedans or other communities in India could not possibly affect the rights of the Christian Sovereign power. If all acts of
Legislature owe their origin to the Sovereign power, whatever that may be, in the absence of clear indication to the contrary, the provisions of
statutory law should be regarded as governing transactions only of the subjects of the sovereign power and not of the sovereign power itself;
Further, the rules of law, whether statutory or otherwise, governing and regulating transfers of property as between subject and subject of the
sovereign power, are based or should be deemed to be based on principles which cannot in any wise be regarded as applicable to a transfer by
the sovereign power itself.
As I read Crown Grants Act it became necessary for the Legislature to pass such an Act altogether declaratory in its nature, merely because of
the doubts which came to be enter-tained after the passing of the Transfer of Property Act. The meaning and significance of Crown Grants Act of
1895 is merely a re-statement of the principle underlying Section 3 thereof, namely, that the Crown is entitled to impose any restrictions, conditions
or limitations over, whatsoever, in any grant or transfer it may make whether such restrictions, conditions or limitations over, would be legal or valid
or not in any grant or transfer made by one subject to another, and it became necessary for the Legislature to re-state and re-affirm the principle
only because of the doubts that arose subsequent to the passing of the Transfer of Property Act. I cannot, therefore regard the Crown Grants Act
as an enacting or enabling measure of the Legislature or even as a ratifying Act with retrospective effect making legal that which was not so. An
explanatory and declaratory Act cannot be regarded or construed as if it were an enactment creative or regulative of rights or obligations. It seems
to me therefore unnecessary to deal in detail with the very long and learned argument addressed to us for the plaintiffs with special reference to the
Crown Grants Act. I am satisfied that the sannad in this case which was a grant by the State or Sovereign authority would be binding according to
its tenor. I shall therefore merely refer briefly to the other contentions of the learned vakil for the plaintiffs. His first contention was that Section 3
providing for Crown grants taking effect according to their tenor refers merely to such grant or transfer as aforesaid, and therefore refers back to
Section 2 and is confined in its operation to a grant or transfer heretofore made or hereafter to be made by or on behalf of Her Majesty the Queen
Empress, her heirs or successors or on behalf of the Secretary of State for India in Council. The Secretary of State for India in Council came into
being only on the assumption, by Her Majesty Queen Victoria, of the Government of India in 1858 and the title of Empress of India was conferred
on Her Majesty only in 1876 and the arguments founded thereon was that therefore the grants and transfers of property to which the Act is
applicable are only grants and transfers made subsequent to 1858 or 1876. But I have already come to the conclusion that the Act, as such, is
intended to be limited only to grants and transfers subsequent to the passing of the Transfer of Property
Act. When Section 2 lays down that nothing in the Transfer of Property Act shall apply or be deemed to have applied to any grant or transfer
made before 1895 or to be made after 1895 I cannot regard the Act as intended to apply to the construction of any grant made previous to the
year 1882. But at the same time I cannot accept the argument of the learned vakil for the plaintiffs that merely because the expression used is
Queen Empress"" and that title was conferred on Her Majesty only in 1876 the Act must on that ground be confined in its operation only to grants
or transfers made subsequent to 1876. The mere fact that a person is referred to in a document, albeit a statute of the Legislature, by his or her
present title seems to me to be no reason, apart from the context, to hold that a limitation or definition of the time is thereby introduced impliedly,
by referring only to the period of time subsequent to the adoption or conferring of the title and there seems also no reason for supposing that the
expression was not used merely to indicate merely the sovereign bearing the title.
The next contention for the plaintiffs was that previous to the assumption of the sovereignty of India by the Crown in 1858 the sovereignty was
in the United East India Company and that therefore the grant which was made in the year 1843 under the sannad issued by the Company, could
not be regarded as a grant by or even on behalf of the Crown. This contention has been to my mind conclusively answered by the learned
Government Pleader who appeared for the Secretary of State. The Parliamentary Act, 3 & 4 Will. IV, c. 85, both in the preamble and in Section
1, provides and declares that the territories, revenues, etc., of India in the possession and under the Government of the Company shall remain and
be vested in the Company in trust for His Majesty and even in the Government of India Act, 1853, similar words were used. In Gibson v. The
United East India Company (9) the general principle of law is referred to that all conquests made by subjects necessarily belong to the Crown and
in the case of The Advoacte-General v. Richmond (10) it is pointed out that the vesting of the territories and revenues in the United East India
Company is in trust for His Majesty for the service of the Government of India. See also The Secretary of State for India v. Kamachee Boye
Sahaba (1). It seems to me unnecessary to refer to all the cases that have been cited at the bar in cpnnec-tion with this question, because the terms
of the statute are to my mind perfectly clear.
It was also argued by the learned vakil for the plaintiffs that even assuming that the Government of the country was carried on by the Company
in trust for Her Majesty it does not follow that the grant was a grant made on behalf of Her Majesty. The contention was that the expression ""on
behalf of"" imports some sort of agency and that it cannot be said that a grant by a trustee is on behalf of the beneficiary. I cannot possibly agree
with such a