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Mervanji Mancherji Cama Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number O.C.J. Appeal No. 26 of 1911
Judge
Reported in(1912)14BOMLR654
AppellantMervanji Mancherji Cama
RespondentThe Secretary of State for India in Council
DispositionAppeal dismissed
Excerpt:
estoppel-representation as to the nature of tenure in rent rolls kept by the collector-whether such representation binds the secretary of state-bombay city laud revenue act (11 of 1876), sections 8, 12, 39, 40.;the plaintiffs sued the first defendant, the secretary of state for india, for a declaration that he was estopped from denying that the land mortgaged to the plaintiffs by the second defendant was of a quit and ground rent tenure owing to representations contained in a rent roll of the collector of bombay, in a notice, and in some rent bills and receipts issued by that officer, that the land was of such a tenure. the land was held under a sanad of 1874 by the predecessor-in-title of the second defendant who occupied it upon payment annually to the government of certain rent subject.....basil scott, kt., c.j.1. the plaintiffs sue for a declaration that land of which they are mortgagees is as between them and their mortgagor on the one hand and the secretary of state on the other quit and ground rent tenure.2. the land, it is now conceded, is held under a sanad under which the predecessor-in-title of the plaintiffs' mortgagor was given permission by government to occupy the land upon payment annually at the rate of eleven reas the square yard subject to the right of government to resume the land for public purposes on six months' notice. the sanad is dated 1824.3. quit and ground rent is rent payable annually for land at the rate of eleven reas the square yard. it was formerly regarded as doubtful whether quit and ground rent land was resumable by government. after the.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiffs sue for a declaration that land of which they are mortgagees is as between them and their mortgagor on the one hand and the Secretary of State on the other quit and ground rent tenure.

2. The land, it is now conceded, is held under a sanad under which the predecessor-in-title of the plaintiffs' mortgagor was given permission by Government to occupy the land upon payment annually at the rate of eleven reas the square yard subject to the right of Government to resume the land for public purposes on six months' notice. The sanad is dated 1824.

3. Quit and ground rent is rent payable annually for land at the rate of eleven reas the square yard. It was formerly regarded as doubtful whether quit and ground rent land was resumable by Government. After the fire in Bombay in 1803 various quit and ground rent plots were resumed and their occupants compensated by other plots in New Town of Kamatipura as to which Government issued sanads stipulating for the annual rent of eleven reas the square yard and that the land should be resumable for public purposes. The land in question is a plot in Kamatipura held under such a sanad.

4. During the last few years Government have apparently abandoned any right of resumption of quit and ground rent land not held under sanads reserving the right, and consequently, as the first defendant admits in the pleadings, land held under the terms of the sanads above referred to is much less valuable than land held upon quit and ground rent tenure. The history of these tenures is given in Edwardes' Gazetteer of Bombay, Vol. II, pp. 342-43

5. The plaintiffs contend that their right to the declaration sought for arises against the Secretary of State because during the investigation by the plaintiffs' solicitor of the mortgagor's title it appeared from three certified extracts from rent rolls kept in pretended compliance with the provisions of Section 39 of Bombay Act II of 1876 and from a notice from the Collector, dated the 19th of January 1889, issued under Section 12 of the same Act, that the land was admitted and represented by the Collector to be of quit and ground rent tenure and the plaintiffs' solicitor relying upon the representation contained in the aforesaid documents as to the tenure of the land advised the plaintiffs to enter into the proposed mortgage which the plaintiffs thereupon did.

6. In paragraph 8 of the plaint the case of estoppel against the Secretary of State is formulated as follows:-

8. The plaintiffs say that if the land comprised in their mortgage and further charges or any part thereof is identical with the land referred to in the said sanad, the 1st defendant having by his declarations acts and omissions, that is to say, by reason of the entries in the rent rolls and the notice in the 3rd para hereof and the bills in the 4th para hereof referred to and of his having omitted to make any reference therein to the said sanad, intentionally caused or permitted the plaintiffs to believe that the said land was of quit and ground rent tenure, he is now estopped from denying that the same is true.

7. It is to be observed that this paragraph contains no reference to the extracts certified by the Collector; an issue was, however, raised regarding them and much argument was devoted to their effect. The case of estoppel was, in fact, based upon them in argument for the allegation that the rent rolls omit to make any reference to the sanad cannot be supported on the evidence.

8. The first question which arises is whether the plaintiffs have a cause of action under the circumstances stated in the plaint. They rely, in support of their claim for a declaration that their ground is of quit and ground rent tenure, upon an estoppel preventing the Collector or Government from asserting that the tenure of the land is sanadi and not quit and ground rent. It is, no doubt, true that estoppel is only a rule of evidence and you cannot found an action on estoppel; but the estoppel is important as being one step in the progress towards relief on the hypothesis that the defendant is precluded from denying the truth of the fact which he is supposed to have asserted : see Low v. Bouverie [1891] 8 Ch. 82.

9. The plaintiffs contend that they are entitled to the character of tenants of quit and ground rent land and that the Secretary of State has denied and is interested to deny their title to such character. The action is based on the denial not the estoppel. Under these circumstances the case falls under Section 42 of the Specific Relief Act and a suit of this character is maintainable.

10. The first two issues raised were:

(1) whether the Collector of Bombay had any power to vary the tenure of the land in suit;

(2) whether the Secretary of State is bound by any declaration, act or omission, of the Collector tending to vary the tenure.

11. It is clear that if any case could be made out of representation by the Collector to the plaintiffs upon which the latter had acted to their detriment it could only give rise to an estoppel as against the Secretary of State or the Government if the rule that the act of the agent is the act of the principal is applicable to acts done by the Collector in the exercise or pretended exercise of his statutory duties under the Bombay City Land Revenue Act.

12. The learned Judge decided these issues in favour of the plaintiffs holding that if the Collector really made representations or was guilty of omissions with the effect alleged by the plaintiffs there would be an indisputable estoppel binding upon his superior principal, the Secretary of State for India.

13. This conclusion appears to lose sight of the fact that what the Collector did he did as the officer directed by statute to carry out statutory duties. Whatever is contained in the rent rolls subsequent to 1878 and the certified extracts therefrom and in the notice relied upon by the plaintiffs was inserted or certified in performance or supposed performance of the Collector's statutory duty. It was laid down in Tobin v. The Queen (1864) 33 L.J.C.P. 199 that where the duty to be performed is imposed by law and not by the will of the party employing the agent the employer is not liable for the wrong done by the agent in such employment. The correctness of this decision was recognised by the Judicial Committee in Nireaha Tamaki v. Baker (1901) A. C. 561 Their Lordships say: 'In the case of Tobin v. The Queen (1864) 33 L.J.C.P. 199 a naval officer, purporting to act in pursuance of a statutory authority, wrongly seized a ship of the suppliant. It was held on demurrer to a petition of right that the statement of the suppliant shewed a wrong for which an action might lie against the officer, but did not shew a complaint in respect of which a petition of right could be maintained against the Queen, on the ground, amongst others, that the officer in seizing the vessel was not acting in obedience to a command of Her Majesty, but in the supposed , performance of a duty imposed upon him by Act of Parliament, and in such a case the maxim 'Respondent superior ' did not apply.'

14. These authorities were applied to acts done by officers in pursuance or supposed pursuance of statutory powers under an Indian Act in Shivabhajan v. Secretary of State for India ILR (1904) 28 Bom. 314.

15. In answer to the argument based upon Tobin v. Reg it has been contended that in the present case no action would lie against the Collector in respect of innocent though negligent misrepresentation however great the damage caused by it, because negligent misrepresentation does not amount to deceit and, therefore, does not give rise to any cause of action, and that a person injured by the Collector's negligent representation would have no remedy, according to Derry v. Peek (1889) 14 App. Cas. 337. It was, however, pointed out by Lord Justice Bowen in Low v. Bouverie (1891) 3 Ch. 82 that if the duty is assumed to exist there must be a remedy for its non-performance and that, therefore, the doctrine that negligent misrepresentation affords no cause of action is confined to cases in which there is no duty such as the law recognises to be careful. In this state of the authorities it is not clear that a person injured by negligent representation in breach of statutory duty by the Collector under Bombay Act II of 1876 would have no right of action for damages. It is much more doubtful if there would be a right of action against the Collector under Section 42 of the Specific Relief Act in respect of a denial of the plaintiffs' title put forward in the course of statutory duty, which ex hypolhesi is the act complained of in this suit.

16. Next it is contended that Dadoba v. The Collector of Bombay ILR (1901) 25 Bom. 714 shows that Government may be estopped by the action of the Collector under Bombay Act II of 1876. That, however, was a case under Section 8 of the Act which provides that the Collector shall fix the assessment subject to the orders of Government. The orders of Government were that the Collector should fix the assessment in the particular case in dispute and Government were throughout parties to the negotiations under which the sale took place to the father of the plaintiff who asserted the estoppel. The Chief Justice at page 745 says, 'Government undoubtedly had the power to fix the amount of assessment and the only question is whether it did not do so.'

17. There was in the circumstances an estoppel arising from the act of Government itself in the particular transaction. That is no ' authority for the proposition that the controlling authority of the Government as to the general form or the rules under which the Collector shall under Sections 39 or 40 of the Act keep registers or give inspection and copies and extracts makes the statutory act of the Collector the act of Government so as to estop them or the Secretary of State by the Collector's conduct.

18. Assuming, however, for the purpose of argument that negligent conduct on the part of the Collector or his subordinates in discharging their statutory duties under Sections 39 and 40 of the Act may be such as to impose a liability upon the Government as principal, the evidence in this case does not appear to establish breach of duty. It is, I think, proved, as was held by the learned Judge of the lower Court, that the entry relating to the sanad of 1824 did appear on the face of the rent roll kept under the Act of 1876 at the time of inspection taken by the plaintiffs' solicitor in connection with their proposed advance on mortgage to the second defendant and also at the time of Mr. Gostling's inspection of the rent roll in connection with an equitable mortgage by the second defendant to the Chartered Bank at an earlier date than the plaintiffs' advance. The certified extracts, which have been principally relied upon by the plaintiffs, were obtained by Mr. Gostling in connection with that transaction. The evidence establishes that he personally took inspection of the rent roll and that his clerk under his instructions subsequently copied out certain statements in the rent roll and got them certified by the subordinate of the Collector as correct extracts. There is evidence that this practice is permitted in the Collector's office as being in accordance with the Act and the rules framed thereunder. The rule which provides that a copy or extract should be made by the applicant and not by one of the Collector's clerks is probably ultra vires, but the point is of no importance in this case. A question of more relevance is whether the Collector is authorized by the terms of the Act to certify partial extracts as distinct from exhaustive copies from any portion of the rent roll or register.

19. Under Section 40 an 'extract' is something different from a 'copy ' and a ' copy ' can hardly be supposed to mean a copy of the whole rent roll in the case of ordinary applications. The inference, therefore, is that the Legislature did contemplate the granting under the designation of ' extracts ' of selected entries only from the rent roll although they might not be all the entries relating to the property with which the extract was concerned. It is apparent from Mr. Gostling's report that his object in obtaining the extracts was to trace the devolution of the property and not to get an official certification as to its tenure. It is probable that at that time he did not attach importance to the entry relating to the sanad of 1824 because the rent in respect of quit and ground rent lands and of sanadi lands was the same and Government had not then abandoned their often repeated assertion of a right to resume quit and ground rent lands at pleasure nor had they given any indication of their determination to resume sanadi lands for public purposes. When they did so, a differentiation was made in the matter of rent rolls: sanadi and quit and ground rent lands were no longer registered in the same rent roll.

20. According to the ordinary rules relating to estoppel, a person cannot take advantage of a representation alleged to create an estoppel unless he is concerned in the transaction in which the representation was made or claims under some person so concerned: see Longman v. Bath Electric Tramways, Limited (1905) 1 Ch. 646. The plaintiffs do not claim under the Bank by whom Gostling was employed when he obtained the certified extracts and can only take advantage of any estoppel which might arise in favour of the Bank if the certified extracts can be put as high as endorsements on negotiable instruments warranting to every one into whose hands they come the truth of the assertion made. We are not called upon to decide in the present case whether or not conveyancers in Bombay would be entitled, without inspection of the rent roll, to assume as correct and act upon statements in documents certified by the Collector under Section 40 as true copies of the rent rolls. It is sufficient for this case to say that I am unable to hold that where a document merely purports to be a certified extract there is any representation even to the person applying for the extract that no other entry will be found in the rent roll for the period in question relating to land to which that document refers.

21. The notice (Ex. J) and the receipts for rent (Ex- F) were not relied on as being equally effective with the certified extracts to establish the case of estoppel. The notice was issued by the Collector under Section 12 of the Act for the purpose of fixing the time and place for payment of land revenue, and the receipts were issued to evidence the payment of the revenue. In neither case did the statements in the documents purport to represent the contents of the registers and rent rolls.

22. I have discussed the case on the footing of the land mortgaged not being held on quit and ground rent tenure because of the admission in paragraph 11 of the written statement that land held under the terms of the sanad in question in this case is less valuable than land held upon quit and ground rent tenure, but it appears to me to be very arguable that land in New Town held at a yearly rate of eleven reas under sanads permitting resumption for public purposes was quit and ground rent land. For the purpose of revenue collection no distinction was made between lands held at a perpetual yearly ground rent of eleven reas whether they were subject to an express or only to a supposed implied condition of resumption. It is stated in Edwardes' Gazetteer, Vol. II, that the sanadi lands in New Town were also known as quit and ground rent lands and this appears to me to be the correct inference from the Collector's records up to 1908. For these reasons I am not prepared to hold that a prima facie case of negligent mis-statement on the part of the Collector is made out. A conveyancer acquainted with the history of Bombay tenures would not, I think, assume in 1892 without inquiry that land called quit and ground rent held on the eleven reas tenure was not resumable. For these reasons I am of opinion that Government are not estopped from asserting the true tenure of the land mortgaged to the plaintiffs and that the suit fails. The decree of the lower Court must be affirmed and the appeal dismissed with costs.

Russell, J.

23. This case raises an important question for Government and the public generally.

24. The first question to be decided was raised during the course of the arguments in this Court, namely, whether the plaint discloses a cause of action. On this point the material paragraphs of the plaint are 2, 8, 12 and 13, the effect of which stated shortly may be said to be that the plaintiffs advanced their monies on mortgage of the property in question on the representation by the Collector of Bombay that the tenure thereof was quit and ground rent tenure ; and that when the monies were advanced the Collector of Bombay claimed to treat the tenure as sanadi and not as quit and ground rent, the result whereof was that the plaintiffs' securit)' has become greatly depreciated and they will be unable to realise the amount due to them by a sale of the land. And the first defendant has in effect denied or is in any event interested to deny the plaintiffs' title to the land as of quit and ground rent tenure. The plaintiffs seek for an injunction as prayed for in their plaint. The first defendant in para 11 of his written statement admits that the land held under the terms of a sanad is much less valuable than the land held upon quit and ground rent tenure.

25. Section 42 of the Specific Relief Act I of 1877 is as follows:-

Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make ' therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief :

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so.

26. That Section now takes the place of Section 15 of Act VIII of 1859, which was framed with the object of putting the law in India on the same footing as it was in England by 13 & 14 Vict. c. 35, Section 44, and 15 & 16 Vict. c. 86, Section 50. And in Ram Needhee Koondoo v. Rajah Rughoo Nath Narain Mullo ILR (1876) Cal. 456 it was held that independently of the principles and provisions of Section 15 of Act VIII of 1859, the Courts in India had the same power to grant a declaratory decree in any other case as the Court of Chancery in England. In England it has been held that whenever any act injures another's right and would be evidence in future in favour of the wrong-doer an action is maintainable for an injunction without proof of any specific damage; see Mellor v. Spateman (1670) 1 W. S. 612 and Harrop v. Hirst (1868) 38 L.J. Ex. 1. In England now the question is governed by Order XXV, Rule 5, under the Judicature Act, which enlarges the power of the Court to make binding declarations of right whether consequential relief is or could be claimed or not. But this rule does not make every claim for a declaration a good cause of action: see North Eastern Marine Engineering Company v. Leeds Forge Co. (1906) 1 Ch. 324. In Young v. Ashley Gardens Properties, Limited (1903) 2 Ch. 112, it was held that a lessee may obtain a declaratory judgment in respect of any illegal or unreasonable act by a landlord which appreciably diminishes the value of the lessee's property. There the Court made a declaratory judgment in favour of the lessee who had been unreasonably refused by his landlord the right to assign his lease. This case would equally fall within the provisions of Section 42 of the Specific Relief Act in India.

27. The plaintiffs here, in seeking for the injunction prayed for, are seeking further relief as well as the declaration: see Kunj Bihari v. Keshavlal Hiralal ILR (1904) 28 Bom. 567 and Marsh v. Keith (1860) 1 D & S. 342 And the declaration they claim is ancillary to the putting in suit of their legal right: see per Collins M.R. in Williams v. North's Navigation Collieries [1904] 2 K.B. 44.

28. In support of his argument Mr. Raikes referred to several authorities the most important of which are as follows :-Kali Kishen Tagore v. Golam Ali ILR (1886) Cal. 3 and Sakharam v. The Secretary of State for India in Council ILR (1904) 28 Bom. 332 and which support his case on this point.

29. That the defendant is interested to deny the plaintiffs' right to be mortgagees of this property as of quit and ground rent tenure is to my mind apparent from the fact that he is denying the plaintiffs' title to such character or right.

30. For these reasons, in my opinion, the plaint discloses a cause of action. It is not disputed that the land comprised in the plaintiffs' mortgage and further charges is identical with the land referred to in the sanad Ex. No. 5. And this appears clear upon examination of the plaintiffs' title deeds Ex. H collectively. It is not necessary to refer to them in detail, but I would draw special attention to the endorsement on the deed dated the 16th November 1843 which, inter alia, is as follows:-

It having been erroneously supposed that the act of registering deeds of transfer of land implied a relinquishment of the right of ownership in or power to resume the land at pleasure on the part of the Company the parties are informed that such is not the intention. The sole object of the registering being to enable the Collector to apply to the proper person for payment of the rent.

31. This being so the next matter for consideration is the nature of the suit. It is brought against (1) The Secretary of State for India in Council; and (2) Abdul Hoosein Ebrahimjee, the plaintiffs' mortgagor. Paragraph 15 in the plaint says: 'The latter is only joined as a party as being interested in the relief sought but the plaintiffs have no cause of complaint against him in connection therewith.' It must be treated, therefore, as a suit against the Secretary of State alone, neither the Government nor the Collector of Bombay being parties thereto.

32. The estoppel upon which the plaintiffs rely is alleged to be contained in three documents: (a) certified copies of the entries in the rent-rolls in the Collector's books, Ex. I in the case ; (b) a notice from the Collector dated the 19th January 1889, Ex. J in the ease; and (c) certain bills and receipts for ground-rent, Ex. F in the case.

33. It will be observed that the plaint does not specifically allege what the connection between the first defendant and the Collector of Bombay is nor does it specify the omissions which are relied upon, whether they are due to carelessness or negligence on the part of the Collector of Bombay or of the subordinates in his office; nor in what capacity, whether public or private, of the Collector of Bombay the alleged acts declarations or omissions took place. It therefore, becomes material to consider what the legal position of the first defendant in the case is. It is well known that the old East India Company was invested with powers and privileges, quite distinct from each other, of a two-fold nature, viz., power to carry on trade as merchants, and (subject only to the prerogative of the Crown to be exercised by the Board of Commissioners for the affairs of India) power to acquire, and retain, and govern the territory, to raise and maintain armed forces by sea and land, and to make peace or war with the Native powers of India : see Tindal C. J. in Gibson v. East India Company (1839) 5 B N.C. 262.

34. In 1858 (by 21 and 22 Vict. c. 106, an Act for the better Government of India), the Government of the territories vested in the East India Company in trust for the Crown was directly transferred to and vested in the Queen, and was to be exercised in her name. By that Act the Secretary of State for India in Council was constituted a body corporate for certain purposes and (under Section 65) might sue and be sued by that name ; and all persons were to have the same remedies against that officer as they would have had against the East India Company. By Section 6 of the Amending Act of 1859 (22 Vict. c. 41) the Secretary of State for India in Council was expressly made liable to be sued in respect of certain contracts.

35. From the dual character of the East India Company it followed that legal proceedings against the Company in its trading capacity were governed by the same principles as proceedings against private individuals ; while proceedings against the Company in its capacity of territorial sovereign, as the representative of the British Crown, were governed by the principles applying to actions against officers of the Crown.

36. By 21 George III, c. 70, Section 1, the Indian Courts cannot exercise jurisdiction against the Governor-General or the Governor of Madras or Bombay, or any of the members of their Councils, in respect of anything counselled, ordered, or done by any of them in his public capacity only, or by Section 8 of the same Act, in any matter concerning the revenue or concerning any act ordered or done in the collection of revenue according to the usage and practice of the country or the Regulations of the Governor-General in Council. The law in England is the same: see Gidley v. Lord Palmerston (1822) 3 B.& B. 275.

37. By Section 79 of the present Civil Procedure Code (Act V of 1908) suits by or against the Government of India should be instituted by or against the Secretary of State for India in Council. The former Section was 416 of Act XIV of 1882.

38. In England it has also been held that no one would accept any office of trust on the Government if he were to be made personally responsible for acts done in his official capacity (see Grant v. Secretary of State (1877) 2 C.P.D. 445 and Sullivan v. Earl Spencer (1872) L. R. 6 C.L. 173 and that compensation cannot be recovered from the Crown for damage done to the property of an individual, e.g., by fire: see Viscount Canterbury v. The Attorney-General (1842) 1 Phil. 306 And whether the action be founded in contract or in tort the same principles apply : see Palmer v. Hutchinson (1881) 6 App. Cas. 619 where it was held, inter alia, that the Government revenue cannot be reached by a suit against a public officer in his official capacity.

39. If then the acts or defaults of the Collector of Bombay in this case were done by him as a public officer in his official capacity, in my opinion, neither the Secretary of State, nor that officer could be held responsible for them.

40. There can be no doubt upon the facts proved that the reference to the sanad in question, which is dated 3rd February 1824, was made upon the face of the Collector's records and also upon Laughton's Register in the seventies, long before plaintiffs had any connection with the property. On the face of the sanad (Ex. 5) by the note in the margin it appears that the sanad was brought into the rent roll, and these words are initialled N.J.B., but unfortunately the date of that insertion in the rent-roll is not mentioned, nor any evidence given to show who N. J. B. was. And there can be no doubt, looking at Ex. 7, the extract from Laughton's Register, that an entry was made therein 'as per sanad dated 3rd February 24, No. 258. 'Also in Ex. 10 the entry relating to the property in suit held on rent permanently fixed under quit and ground rent tenure period 1878-79 to 1884-85, the words in red ink are added 'Vide sanad dated 3-2-1824 added to the above.'

41. The evidence of Laxman Ramji proves that the pencil reference in Laughton's Register, Ex. 7, p. 132, referring to the sanad was written in 1874-75 ; that the red ink words written over the pencil were written by his brother Ganesh Ramji, Head Surveyor, who died in 1887. The evidence of Bhagwantrao shows that the red ink entry on the rent-roll for 1878-79 was made by a rent-roll clerk Madhavrao B. Thosar, who became second clerk in March 1861, and after that he had nothing to do with the rent-rolls. And seeing that the Bombay Land Revenue Act came into existence in 1876 the probabilities are that the question of putting the rent-rolls and register on an accurate footing assumed considerable importance. In my opinion, therefore, Mr. Justice Beaman was right in holding that the entries in the Laughton's Register and the rent-roll in red ink were apparent to anybody who looked at those documents. I also agree with Mr. Justice Beaman in his finding that neither Mr. Gostling nor Mr. Shroff considered the question of the tenure of the land.

42. The history of quit and ground rent and 'sanadi ' lands in Bombay will be found clearly and concisely stated in the new Gazetteer of Bombay, Vol. II.

43. It is material here to observe that different considerations appear to apply to Ex. I on the one hand and to Exts, J and F on the other. For, I think, it is clear that Ex. I was certified by the Collector in his official and public capacity and in consequence of a request therefor under Section 40 of Bombay Act II of 1876 and Rule 6 of the rules (Ex. 6, p. 131): whereas, there was no obligation upon him to furnish Exts. J and F in the form he did.

44. Section 40 of the Act and Rule 6 framed thereunder run as follows :-

Section 40.-Subject to such rules and the payment of such fees as the Governor in Council may from time ID time prescribe in this behalf, all maps and land registers, and other records of the Bombay City-survey, and all records concerning the land or the land revenue, shall be kept in the Collector's office and shall be open to the inspection of the public at reasonable hours ; and certified extracts from such maps, registers and records, or certified copies thereof, ahull be given to all persons applying for the same.

Rule 6.-The applicant is to take copies by his own clerks or surveyor, as copies cannot be made by the clerks or surveyors in the Collector's office.

45. The true construction of the above section of the Act and the rule seems to me to be that copies which are to be made must be made by the clerk or the surveyor of the applicant in the Collector's office and when made are to be duly certified by the Collector and the certified copies given on stamped papers in accordance with the Legislative Acts mentioned in rule 2.

46. The Collector has no notice or knowledge for what purpose the extract may be required. And in the present case it seems to me that the Collector would be entitled to say: 'Before I can be held to be estopped by extracts from these records the whole of the rent-rolls must be looked at, and upon those rent-rolls there was ample notice of the existence of this sanad and you the mortgagees of the second defendant did not take the trouble to refer to the original sanad. Further, if your attorney Mr. Shroff had seen that the sanad contained on the face of it an agreement by Karmalli Hyderalli, who says, 'I hereby agree to the above conditions and receive the original grant dated 3-2-24,' you would have seen what amounts to a covenant which runs with the land. That being so you must be held to be bound thereby.'

47. How the extracts (Ex. I) were obtained appears in the evidence of Mr. Gostling and Mr. Shroff which I deal with as shortly as possible.

48. The former was employed by the Chartered Bank, but was paid by defendant 2, the mortgagor. On the 19th January 1892 Gostling (Ex. 3) applied only for certified extracts from the revenue survey and also inspection and certified extracts from the rent-roll showing the ownership of the property (from 1842 to now), and took inspection on the same day. What he took inspection of appears in his bill, the latter portion of Ex. N, which runs thus:-

To fee paid to the Collector for inspection of his office records....

To fee paid to the Collector for inspection of. plans.

To foe paid to the Collector for inspection of 3 certificates of extracts of rent....

To our fee for inspection and taking search in the Collector's office and making further report on the four estates belonging to you situate at Dnncan Road.

49. From this it would appear that he took inspection of the office records in the Collector's office. They would include the rent-roll and Laughton's Register. Ex. 1 are the extracts only from the rent-roll. Ex. 10 is the original of the first extract in Ex. 1. The original of the first document is not headed as it is copied out at page 101 but is headed thus: ' Lands of the new town of Kamatipura.'

50. A comparison of the first extract in Ex. 1 with Ex. 10 shows that several particulars were omitted from the former. For instance 95 7/9 square yards were included at an enhanced rent, being newly assessed land. If Gostling saw Laughton's Register he must have seen the reference in red ink to sanadi lands. But I agree with Seaman J. that Gostling did not consider the question of the tenure of the property at all but only that of the title.

51. The next matter to consider is what Shroff did and did not do. On the 16th October 1892 he wrote to the Collector of Bombay (Ex. L) for search of the register for the year 1828 on behalf of Abdul Hussein Ibrahimji. But he was employed by the plaintiffs to investigate the title (see the plaintiffs' evidence, page 45 ; and Shroff's evidence page 48). He says that he did not take a copy of the three extracts referred to in Gostling's report. He saw the words 'quit and ground rent' in the notice and the extracts and on that he concluded that the tenure must be of that nature. He made no further inquiry of any sort as to the tenure after that. After being referred to Gostling's report (Ex. K), he says it is quite clear that Gostling and Morris were in that report concerned solely with the devolution of the property and the area. It seems that they got these extracts for the purpose of tracing the title,

Q.-And not for the purpose of ascertaining the tenure?

A.-Nothing is in the report to show that they were ascertaining the tenure.

52. After being referred to the rent-roll for 1841-42, of which the first entry in Ex. 1 is the extract, he goes on:-

There is nothing on that to show that it is a rent-roll of quit and ground rent. That is the rent-roll I inspected in 1892. If I had had the extract before me at the time and had seen the original rent roll, which does not contain the heading quit and ground rent, my suspicions of the correctness of the extract would have been aroused. I would then have checked the other two. I would not have looked into the register of Laughton's survey

53. And in his examination-in-chief (p. 48, 1. 32), he says:-

The result of my investigation was that the property was of quit and ground rent tenure. I based that opinion upon the three certified extracts and the notice. I did not make any further search.

54. Mr. Shroff, it appears, carefully read the endorsement on the deed of 1843, above set out, but that did not rouse his suspicions in the least (see his cross-examination, page 51). If Mr. Shroff had compared the extracts in Ex. 1 with the original he must have seen the reference to the sanad which appears in Ex. 10, and also he must have seen that on the rent-roll were included 95 7/9 square yards of surplus land at a rent of eleven reas, which should have led him to make further enquiries in the land register, where he would have found the reference to the sanad.

55. It cannot, therefore, be said that there was any omission on the part of the Collector with regard to Ex. 1 because he did not provide the applicant with more of the records than the applicant required. And where the whole of the record, deed or document in which statement relied on is contained shows the truth, there can be no estoppel : see Coke upon Littleton, 3526, Smith's L. C., Vol. II, p. 749; Encyclopedia of the Laws of England, title ' Estoppel ' ; and Halsbury's Laws of England, title 'Estoppel ', page 354.

56. The next question arising on Ex. 1 is what was the proximate, direct or 'real cause,' as some Judges have preferred to call it, of the alleged damage to the plaintiffs' security. That this is the test : see Lonyman v. Bath Electric Tramways, Ltd. [1905] 1 Ch. 646 Can there be any doubt on a consideration of the evidence in this case that the real cause was the omission of the plaintiffs' solicitor, Mr. Shroff, to properly search the records in the Collector's office In my opinion it was the duty of Mr. Shroff not to be satisfied with copy-extracts in the Collector's records, but to have examined the originals and seen any interlineations and alterations which appeared therein, and generally to see that nothing about the title was omitted : see Encyclopaedia of the Laws of England, title 'Abstract of Title ', p. 42, 1st Edn. The case of Palmar v. Harland (1881) 17 Ch. D. 353 is an authority for saying that even an express representation on the part of a vendor or lesssor as to a document not affecting the title will not exonerate the purchase] or lessee from going to look at it (see per Jessel M.R. in that case). In Butler v. Earl of Portarlinglon (1841) 1 D. & W. 20 it was held that a party claiming title under a lease or any other instrument must be presumed to know the title under which he takes, and the circumstances connected with it unless he can show the contrary. The Lord Chancellor there said at p. 52 :- 'I shall always hold it as an irresistible presumption until it is disproved that a man takes notice of what his title is in an estate. It is not to be supposed for a moment that he can be ignorant of it. An estate does not drop from the clouds.' As regards title the Privy Council have held in Vardcn Seth Sam v. Luckpathy Royjee Lallah (1863) 9 M.I.A. 307 that the register of the name of a party in possession of the land in the Collector's books as owner is no conclusive evidence of his title, as the land may be affected by prior equitable charges, and it is the duty of a purchaser to investigate the prior title. Here as regards the tenure of the land the truth appeared upon the Collector's records which ought to have been investigated by the plaintiffs' attorney. And in this case when the endorsement on the deed of November 1843 is considered, it appears to me extraordinary that Mr. Shroff did not think it worthwhile to investigate the tenure.

57. To adopt the opinion of Lord Esher in Selon v. Lafone (1887) 19 Q.B.D. 68 it was not reasonable as a matter of business for the plaintiffs to advance money on the mortgage in question as a result of their belief in the statement contained in Ex. 1 seeing that that Exhibit was only a portion of the complete record which bore on the face of it a reference to the sanad. Further estoppel cannot be relied on when circumstances are such as would have prevented a reasonable man from acting on the statement, and it is difficult how any reasonable man could be satisfied by mere extracts from the records : see Porter v. Moore [1904] 2 Ch. 367. And as pointed out in Agra Bank, Limited v. Barry (1874) L.R. 7 I. A 135 what is the duty of a purchaser or mortgagee as to investigation or enquiry must depend upon the circumstances of each case.

58. The next point to consider is whether the notice, Ex. J., dated the 19th January 1889, p. 104, amounts to an estoppel. It runs as follows :--

Notice under Section 12 of Bombay Act 11 of 1876.

To

Abdul Husein Ebrahimji

By order of the Kight Honourable the Governor of Bombay in Council 1 do hereby, under the provisions of Section 12 of Bombay Act 11 of 1876, make known to you that henceforth and until further notice all land-holders or persons in possession of laud paying revenue to Government in the Island of Bombay are required to pay the land revenue in respect of the land held by them or of which they are in possession to the Collector of Bombay or his clerk or agent authorised in that behalf at his office on the 1st day of May in each and every year until further notice; accordingly 1 hereby order and require you to pay in this office to my bill-collector the sum of Rs. 58-7-2 on account of Government assessment or ground-rent for the quit and ground rent land situate at New Town under Collectors New No. 9858-9859 and New [Survey No. 6414 and standing in the books of this office in the above name.

By your failing in any year hereafter until such further notice as aforesaid to make the above payment at or within the time, at the place, and to the person above-mentioned, the above amount will be recovered by attachment and sale of your property or otherwise in the manner provided by Section 13 of the Act.

59. In the first place, that document is dated the 19th January 1889, more than three years before the plaintiffs had any connection with this land. In the next place, it is not directed to the plaintiffs at all as it could not be, but to Abdul II. Ebrahimji. The Collector could not know that that notice would go into the hands of the plaintiffs. No member of the public could, it appears to me, be justified in relying upon that notice as a representation as to the tenure of the land. In my opinion that document is directed solely towards the recovery of the rent due to Government which is to be paid at a certain time, rate and place. The notice refers to the registration in the Collector's books of the lands, and it will have been noticed that the last lines in the endorsement on the deed of 1843, which I have above set out, expressly state that the sole object of the registering is to enable the Collector to apply to the proper person for payment of the rent. Under these circumstances, in my opinion, the description of the land as quit and ground rent land in Ex. J is a mere falsa demonstratio.

60. Then with regard to the first bill in Ex. F, dated the 18th January 1901. This again is not addressed to the plaintiffs but to Abdul H. Ebrahimji. In my opinion, Mr. Justice Beaman is correct in his view he takes of this document. The object of these bills is to get in the rent due to the Collector, and it would be wrong to treat them as declarations of the tenure of the land binding upon the Collector for all purposes. No doubt, Section 39 of Bombay Act II of 1876 provides that it is the duty of the Collector to prepare and keep a separate register and rent-roll of every description of land according to the nature and terms of its tenure. But it is not alleged that it was this neglect of duty that misled the plaintiffs to their detriment, nor could it be so, for the absence of such separate register and rent-roll is not the real cause of the damage alleged by the plaintiffs: see Longman v. Bath Electric Tramways, Limited. (1905) 1 Ch. 646

61. But apart from this, as regards these documents there is another difficulty in the way of the plaintiffs. From the plaint as drawn it is impossible to know what the Collector of Bombay is charged with, and one is left to guess whether he is charged with negligence in his mode of keeping the records or a breach of duty with regard to that, or whether the negligence or breach of duty was of himself or his subordinates; but the evidence is directed to prove negligence in the keeping of the records in his office. Further nothing is said as to the relation, if any, between the Secretary of State and the Collector of Bombay, which it seems to me must be established before the former can be held liable for the acts or omissions of the latter. Now it is clear that the relation between them is not that of master and servant: see Lane v. Cotton (1701) 1 L. R. 646 : 12 Mod. Rep. 473 which was followed in Whitfield v. Lord Le Despencer (1778) 2 Cowp. 754.

62. The two most recent cases on this question, where all the authorities are referred to, are Raleigh v. Goschen (1898) 1 Ch. 73 and Bainbridge v. The Post Master-General (1906) 1 K.B. 178, where it was held that the Post Master General is not liable in his official capacity, as head of the Telegraph Department of the Post Office, for wrongful acts done by his subordinates in carrying on the business of the department. In India, in Beer Kiahore Sahoy v. The Government of Bengal (1872) 17 W.R. 497 it was held that an officer in the Public Works Department could not bind the Government by a contract made in excess of authority, nor could any payment made by the Officer, who had so exceeded his authority in making the contract, make it binding. In The Collector of Masulipatam v. Cavaly Vencata Narrainapah (1861) 8 M.I.A. 529 it was held that the acts of a Government Officer bound the Government only when he is acting in the discharge of certain duty within the limits of his authority, or if he exceeds that authority, when the Government in fact, or in law, directly or by implication, ratifies the excess. No question of ratification by the Secretary of State is suggested in the present case. In Shivabhajan v. Secretary of State for India ILR (1904) 28 Bom. 314, it was held that in order that a suit should lie against the Secretary of State for India in Council it must be one in which the East India Company might have been made liable, and the liability alleged must be one incurred on account of the Government of India, and it is for the plaintiffs to prove this. If, therefore, the Collector of Bombay incurred liability in the present case by negligence or breach of duty, that liability cannot be said to have been incurred on account of the Government of India. The case of Dadoba Janardhan v. Collector of Bombay ILR(1901) 25 Bom. 714 is clearly distinguishable. There the Collector of Bombay was defendant, and the conduct of Government coupled with the statement made on their behalf by the Collector, was held to have created an estoppel. In the present case it is the Secretary of State alone who is being sued. Whether any personal liability, under the circumstances of this case, can attach to the Collector or Collectors of Bombay at the times when the respective statements were made is a question with which we have nothing to do.

63. For the reasons I have above set out I would confirm the decree of the Court below and dismiss this appeal with costs.


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