J.B. Mehta, J.
1. This appeal arises from the judgment and decree dated 13 August 1958 of the Civil Judge (Senior Division) at Broach in Civil Suit No. 4 of 1956 by which he has dismissed the plaintiffs suit. The plaintiff had claimed a declaration that the plaintiffs suit lands are of his absolute ownership and are not Taluqdari lands as defined by the Bombay Taluqdari Tenure Abolition Act 1949 hereinafter referred to as the Act and that he is liable only to pay as revenue a fixed sum of Rs. 9379-6-3 a permanent injunction restraining the defendant-State Government and their agents and servants from applying the provisions of Section 5(1)(a) and (b) and Section 4 of the Act to the suit lands and further restraining them from levying assessment on the suit lands in accordance with the Bombay Land Revenue Code hereinafter referred to as the Code and the rules made thereunder and from entering the plaintiffs name in the record of rights as an occupant. The plaintiff had also claimed an injunction restraining the defendant from claiming any records in possession of the plaintiff with regard to his tenants acting on the assumption that the said Act was applicable to the suit lands. A decree was also asked for the recovery of the amount of Rs. 16082-8-0 recovered as excess amount by way of land revenue from the plaintiff than what he was liable to pay. Defendant No. 1 was the then State of Bombay and defendant No. 2 was the Collector of Broach. The plaintiff is the Thakor of Amod and as such he claimed to be the absolute owner of all the agricultural lands in about 15 villages in Amod Taluka in the Broach District as per Ex. 62 ad-measuring about 8876 Acres and 15 Gunthas and valued at Rs. 14 20 220 at the rate of Rs. 160/ per acre. Most of these lands were in the possession and occupation of different persons who according to the plaintiff were his tenants and some of the lands were actually in the possession and occupation of the plaintiff himself. The plaintiffs case was that his ancestors once upon a time were the ruling chiefs of Amod and held the Gadi (throne) of Amod as independent rulers. He based his claim of ownership on certain previous treaties with the earlier sovereign. Before the British conquest of the territories of Broach in 1817 A.D. the plaintiffs ancestors paid to the Peshwas a tribute called the annual Jama which was fixed at Rs. 8506/as well as a trienial payment of Rs. 3000/as Peshkush. The plaintiffs ancestors paid tribute for the lands and held the said lands which were known as Wanta lands on payment of a fixed sum of Rs. 8379 on Udhad Jama Bandhi Tenure. The Wanta was a proprietary holding of the lands and according to the plaintiff had been recognised as such from ancient times. The said payment was alleged to have been made as a political tribute and not by way of land revenue and according to the plaintiff was only commuted and accepted as a permanently fixed amount in about 1876 A.D. by an agreement made with the British Government. The said payment of the tribute having been accepted by the paramount power of the sovereign rulers of India before the British rule and by the then Government of India the said agreement was alleged to be binding on the defendants. The plaintiff therefore claimed that he had a right to hold the said proprietary lands on payment of the permanently fixed sum of Rs. 9379-6-3 as Udhad Jama. The plaintiff also alleged that under the various Regulations and Act of 1817 1827 and 1863 there were limitations on the right of the Government to levy land revenue and the plaintiffs lands remained unaffected and this right enjoyed by prescription and from times immemorial could not be taken away by any law. After the Act came into force the defendant-State Government sought to levy land revenue on all the suit lands in plaintiffs possession under the Code by virtue of Section 5(1)(a) of the Act on the ground that the suit lands were Taluqdari lands and the plaintiffs name was sought to be entered as an occupant of the said lands under Section 5(1)(b) of the Act and the Government further sought to obtain from the plaintiff certain records pertaining to tenancy of other suit lands on the assumption that all the suit lands were Taluqdari lands and for which the plaintiff and tenants in possession were liable to pay land revenue being occupants The plaintiffs case is that he was not a Taluqdar and the suit lands were not Taluqdari lands but belonged to him as an absolute owner on payment of the fixed Udhad Jama which was not a land revenue and accordingly the provisions of the Act including Section 5(1)(a) and (b) were not applicable to the suit lands. His further case was that as an agreement was arrived at in 1876 with the British Government by which the tribute was commuted to the fixed amount in perpetuity and which agreement was in terms admitted in the letter of the Collector Broach dated 25th September 1918 there was an agreement or settlement which had been recognised under Section 23 of the Gujarat Taluqdari Act 1888 admitting his right to pay a fixed sum in perpetuity and therefore in any case his lands were saved from the operation of Section 5(1)(a) by the exemption provided in Section 5(1)(b) of the Act. Finally the plaintiff contended that Sections 4 and 5 of the Act were ultra vires as they infringed the fundamental rights of the plaintiff guaranteed under the Constitution.
2. The Government in its written statement admitted that the suit lands were Wanta lands which were proprietary holding held on Udhad Jamabandhi Tenure and that the plaintiff used to pay the sum of Rs. 9379 to the Government. But it denied that the said payment was the political tribute and contended that it was a revenue payment. The case of the Government was that the plaintiff was a Taluqdar and the suit lands were Taluqdari lands and that the Thakores of Amod had accepted the Statutes of Taluqdar long before the passing of the Gujarat Taluqdars Act 1888 and were treated as such and had acquiesced therein. No record of rights was applied but the suit lands were entered in the prescribed Settlement Registers under the Gujarat Taluqdars Act 1888 The estate of the Thakore of Amod was even placed under the management from 1872 to 1896 under the Broach Taluqdars Relief Act 1871 A detailed survey was made of the estate of Thakore of Amod under Section 4 of the Gujarat Taluqdars Act 1888 in 1912. Even in the application for compensation under Section 6 of the Act and for extinguishment of rights under Section 14 the suit lands were described by the father of the plaintiffs as land. It was further contended that it was admitted by the Thakore of Amod in civil suit No. 333 of 1927 filed against the Secretary of State that his ancestors had ceased to be Tributory Chiefs holding under a political tenure under the British Crown and it was not open to the plaintiff to contend that the payment was by way of political tribute and not as a fixed revenue. The sum was never accepted as political tribute and such acceptance if any was not binding on the State Government. The special tenure which made the Taluqdar owner of the land being abolished by the Act it was contended that the suit Taluqdari lands had become liable to the payment of land revenue under the Code. The Government denied the existence of any agreement or settlement between the plaintiff and the Government which had been recognised under Section 3 of the Gujarat Taluqdars Act 1888 and denied that the exemption from Section 5(1) contained in Section 5(2)(b) was applicable to the suit lands. It was also denied that Section 5(1) abridged any fundamental right and was unconstitutional as alleged or otherwise.
3. The trial Court held:
(1) that the plaintiff was a Taluqdar and the suit lands were Taluqdari lands held as a part of the Taluqdari estate by the plaintiff and were therefore governed by the provisions of the Act
(2) that there being admittedly no declaration under Section 22 and as there was no settlement recognised under Section 23(1) of the Gujarat Taluqdars Act 1888 the suit lands were not entitled to exemption from Section 5(1) under Section 5(2)(b) of the Act.
(3) That the impugned Act was competent and was protected from any attack under Article 31(b) of the Constitution and that although the plaintiff and his ancestors had a right by prescription to the enjoyment of the full proprietary rights of the suit lands subject to the payment of Udhad Jama prior to the coming into force of the Act the suit lands were liable after the Act to pay the land revenue under the Code and were liable to be dealt with under the provisions of Section 5 of the Act. On these findings the trial Court having dismissed the plaintiffs suit the plaintiff has filed this appeal.
4. Mr. Nanavati for the plaintiff-appellant raised three points:
(1) Whether the suit lands which are Wanta lands held on Udhad Jama Tenure are Taluqdari lands held on Taluqdari Tenure and are therefore within the purview of the Act?
(2) If held on Taluqdari Tenure whether the suit lands are exempt from land revenue under Section 5(2)(b) of the Act;
(3) That the valuation for the purpose of jurisdiction and pleaders fees put by the lower Court is wrong.
He has, however not pressed the point regarding the vires of Section 5(1) of the Act as in the decision of the Supreme Court in Dhirubha Devisinh Gohel v. The State of Bombay 57 Bom. L.R. 718 it has been held that the impugned Act is protected under Article 31B of the Constitution of India and is therefore a valid law though it abridges certain fundamental rights alleged to be infringed by it.
5. Before cosidering this point we will set out at the outset the main provisions of the Act and the history of Amod estate in question as found in the decision of the Bombay High Court in Nawab Sardar Narharsingji Ishvarsingji v. The Secretary of State for India 43 Bom. L.R. 167 on which both the parties strongly relied. The preamble of the Act says that the object of the Act is to abolish the taluqdari tenure prevailing in certain parts of the Province of Bombay and to amend the law relating to the revenue administration of the estate held on the said tenure. By Section 1(2) the Act extends to the districts of Ahmedabad Kaira Broach and Panchmahals as constituted immediately before the 1st day of August 1949. Under a notification of the State Government issued under Section 1 Clause (3) the Act has come into force on 15th August 1950. Section 2 Clause (1) defines Code as meaning the Bombay Land Revenue Code 1879 and Section 2 Clause (2) defines Taluqdars Act as meaning the Gujarat Taluqdars Act 1888 Section 2 Clause (3) defines Taluqdari land as meaning a land forming part of a taluqdari estate and includes lands forming part of such estate and held by a cadet of a taluqdars family for the purpose of maintenance; while Section 2 Clause (4) defines Taluqdari tenure as meaning a land tenure on which the taluqdari land is held. It may be noted that the key-expression is the term taluqdari estate which is no defined in the Act nor in the earlier legislation and it is the exact connotation of this expression on which we have been addressed at length. Section 3 provides that with effect from the date on which the Act comes into force e.g. 15 August 1950 the taluqdari tenure shall be deemed to have been abolished and all the incidents of the said tenure attaching to any land comprised in a taluqdari estate shall be deemed to have been extinguished. Section 4 provides that revenue surveys of taluqdari estates directed by the State Government under Section 4 of the Taluqdars Act and all settlements made shall be deemed to have been made under Chapter VIII and VIII-A of the Code. Section 5 which is material for our purpose runs as under:
(1) Subject to the provisions of Sub-section (2)-
(a) all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Code and the rules made thereunder, and
(b) a taluqdar holding any taluqdari land or a cadet of a taluqdars family holding any taluqdari land hereditarily for the purpose of maintenance immediately before the coming into force of this Act shall be deemed to be an occupant within the meaning of the Code or any other law for the time being in force.
(2) Nothing in Sub-section (1) shall be deemed to affect-.
(b) the right of any person to pay Jama only under any agreement or settlement recognised under Section 23 or under a declaration made under Section 32 of the Taluqdars Act so long as such agreement settlement or declaration remains in force under the provisions of this Act.
This Section 5(1) and (2)(b) provides for the liability of taluqdari lands to the payment of land revenue and for a taluqdar holding any taluqdari land or a cadet of a taluqdars family holding any taluqdari land hereditarily for the purpose of maintenance immediately before the coming into force of the Act as being deemed to be an occupant within the meaning of the Code. Section 5 Clause (2) originally contained Clause (a) which runs as under:
(a) the right of any person to hold any taluqdari land wholly or partially exempt from the payment of land revenue under a special contract or any law for the time being in force.
But we are not concerned with the same as it was deleted by Section 20 read with First Schedule to the Bombay Personal Inams Abolition Act 1952 Act XLII of 1953 with effect from 1st August 1953. The question has therefore arisen for the recovery of full assessment for taluqdari lands of the Amod estate with effect from 1 st August 1953 only and if the Amod Wanta estate is found to be a taluqdari estate the plaintiff can succeed only by bringing his case within the exemption under Section 5(2). Then comes Section 6 which we will consider at the proper stage and which provides for all public roads waste lands and other properties mentioned therein Section 37 of the Code and which are not situate within the limits of Wantas being vested in the State Government and all rights of the taluqdars in such property being extinguished. Section 7 provides for the compensation to the taluqdars for the extinguishment of rights under Section 6. The material part of Section 6 which is to be noted is that public roads waste lands etc. in a taluqdari estate which are situate in Wantas do not vest in the Government and the rights of the taluqdar therein are not extinguished nor any compensation is provided therefor. Sections 8 to 12 provide for an appeal against the Collectors award of compensation to the Bombay Revenue Tribunal and Section 12 gives finality to the award of the Collector and the decision of the Revenue Tribunal. Section 14 provides for the method of compensation for the extinguishment or modification of any other rights. Section 16 provides for the application of the Code to the taluqdari land subject to the modification specified in Schedule I and subject to the provisions of the Act. Section 17 repeals the three earlier Acts dealing with the taluqdars in the areas covered by the Act and the proviso in Clause (c) thereof saves from the repeal any declaration made or any agreement or settlement recognised any partition confirmed and any management of the taluqdari estate assumed under the provisions of any of the enactments hereby repealed. This provision would be material while considering the plea of exemption based on Section 5(2)(b) of the Act. This is in substance the scheme of the relevant provisions of the Act which we have to consider.
6. As for the history of the Amod estate before us the same is noted in the decision reported in Nawab Sardar Narharsingji Ishvarsingji v. The Secretary of State for India by the Division Bench of the Bombay High Court consisting of Wadia and Divetia JJ. 43 Bom. L.R. 167 at page 171 their Lordships first explained the nature of these Wanta lands as under:
Before dealing with the evidence it is necessary to describe the nature of the estate held by the Thakors of Amod. There is no doubt that the Amod gadi was one of the old estates enjoyed by the Thakors of Amod since several centuries. The first authentic record to which we have been referred is the treaty of Surat in 1775 between the East India Company and Raghoba Peshwa of Poona printed in volume VII of Aitchisons Treaties. By Article 9 of this treaty Raghoba Peshwa assigned the revenues of Amod and all its districts among other territories to the East India Company for meeting the charges of military forces with which he was to be assisted. Thereupon Raghoba ordered the Zamindar of Amod to pay his revenues to the Company. Thereafter in 1782 by a subsequent treaty the East India Company re-transferred those territories to the Peshwa. Just before the Government of Peshwa was over thrown some of the territories belonging to that Government including Amod were transferred by the treaty of Poona in 1817 to the East India Company and the Thakor once more came under the suzerainty of the East India Company and there after of the British Crown. At the date of this transfer the Thakor of Amod was paying a tribute for his lands which were known as the lands of Wanta tenure. (For a judicial exposition of this tenure see Dolasang Bhavsang v. The Collector of Kaira (1879) I.L.R. 4 Bom. 367). The nature of this tenure is very important for the purpose of deciding the question involved in this litigation. It is therefore necessary to see before proceeding further what exactly is meant by the term Wanta. Wanta means a share and wantadar means a sharer. The term was applied to a part of the lands hold in absolute proprietorship by old Rajput Chiefs of Gujarat. The Mahomedans after their invasion deprived them of all but one-fourth share in their-lands. That one-fourth share was allowed to be retained by them in consideration of keeping peace and order in their villages. These lands which were retained by the former as absolute property while the remaining three-fourths share called talpad became the property of the then Government. This proportion of shares how ever was not long preserved. A powerful wantadar would from time to time raise talpad lands and add them to his own wanta; a weak wantadar might lose a part of his wanta by encroachments of the holders of talpad lands; while a needy wantadar might part with his lands by alienation to others. In a majority of cases the wantadars or the Thakors-as they were called paid quit rent or salami as it was called to the Government. After the introduction of the British Government some wantadars allowed their wanta lands to be numbered and assessed for the payment of salami under the Summary Settlement Act (VII of 1863) while others continued to make a payment in lump for all their wanta lands. This payment was called Udhad Jamabandhi i.e. payment of revenue in lump and the wanta was called udhad salami wanta. It is important to note that wanta is a characteristic of lands and not of the person who holds them. There is a class of landholders in Gujarat who are known from early British times as taluqdars (the name seems to have been borrowed from the description of landed proprietors in Upper India who were called taluqdars) and the lands held by them as such are known as lands of taluqdari tenure. According to the Bombay Survey and Settlement Manual Vol. T the leading characteristic of taluqdari tenure is that a taluqdars estate is neither held in gift from the Crown (i.e. alienated) nor in occupancy (i.e. unalienated) but with full proprietary rights attending the advent of the British rule and including the ownership of lands minerals and trees. This description would also apply to wanta lands but a taluqdar and a wantadar are not convertible terms as wanta holders are generally but not invariably taluqdars. The Thakor of Amod is a wantadar as well as a taluqdar.' Further proceeding their Lordships at page 172 observed:
It is clear that whatever rights the Thakors of Amod might have enjoyed in preBritish days they would not enjoy them under the British rule unless they were regranted to them after the commencement of the British rule in 1817: Secretary of State for India v. Bai Rajbai 17 Bom. L.R. 730 and Vajesingji v. Secretary of State for India 26 Bom. L.R. 143 (P. C). It is clear on the evidence that the British Government did not recognise the Thakor of Amod as a chief paying tribute and holding his lands under a political tenure. The payment was regarded as of a civil nature and under the judgment of the Civil Court (Ex. 40) in 1819 the peshkush paid by the Thakor of Amod was treated as a payment of a civil and not of a political nature and therefore enforceable in a civil Court. The status of the Thakors since 1817 can be described as that of a taluqdar holding lands from the Government neither as alienated nor unalienated but of a peculiar type by which wanta lands were held in proprietorship for which a lump payment by way of revenue for all the lands was made to the Government.
7. Thereafter the legal basis of the right of the wanta holders by the Government since the advent of the British rule was examined and it was observed at page 186 as under:
A taluqdari wanta in Gujarat is neither an alienated nor an unalienated holding. It is a peculiar estate which continues to be the property of its holder under the British rule as it was in Pre-British dynasties from ancient times. It was subjected to legislation from time to time. Bombay Regulation I of 1828 recognised the holder of the wanta as having a legal right to the lands comprised therein on payment of the fixed amount of revenue and under Section 27 of that Regulation the possession of these wanta lands for thirty years was regarded as proof of a sufficient right of property in the same. This would show that the British Government recognised the wanta tenure and the right of its holder to the lands included in it.
This account will make it clear that a taluqdar is neither an inamdar nor an occupant of his lands. His wanta is a freehold and not a leasehold. What was paid formerly as tribute and peshkush as a political levy is now converted into a fixed amount in lump as a revenue payment but his proprietary right over all the lands comprised in the wanta was affirmed at the commencement of the British rule and has not since been taken away by any legal process.
At page 183 of the report in terms it is observed that it is admitted that his (plaintiffs) ancestors ceased to be tributary chiefs holding a political tenure under the British Crown whatever might have been their status before.
8. In view of this decision Mr. Nanavati no longer contended that the plaintiff had not ceased to be a tributory chief and that the amount paid was in the nature of a political tribute or that his status was not that of a Taluqdar. But his sole contention was that the decision in terms held (at page 187) that the plaintiff was both a Wantadar and a Taluqdar and that the succeeding sovereign viz. the British Government had recognised the Wanta tanure and the right of its holder to the lands in the Wanta and therefore his case was that the suit lands being held on the different Wanta tenure could not be said to be the taluqdari lands forming part of a taluqdari estate which must be held on the distinct taluqdari tenure. He pointed out that Wanta and Giras were recognised as two separate tenures which were mentioned at the head of the list of tenures recognised as in accordance with the custom of the country in Appendix A to Bombay Regulation I of 1823 in relation to Section 3 Clause (2) of the Regulation Act and in Appendix A to Bombay Regulation 17 of 1827 in relation to Section 35(2) of the latter regulation. He also relied on the selections from the Records of the Bombay Government No. 524 New Series published in 1914. The chapter therein on the character of land tenure in the Bombay Presidency is found reproduced also in the Bombay Survey and Settlement Manual by R.C. Gordon I.C.S. Vol. I (Second Edition 1951 in Chapter XXIII at page 223. Here also the Taluqdari tenure and the Wanta tenure are separately shown as under:
The Taluqdari Tenure -The Taluqdari tenure is one of the most important in Gujarat. It prevails in the districts of Ahmedabad Kaira Broach and the Panch Mahals the greater number of estates held under this tenure being situated in the Western Talukas of Ahmedabad adjoining Kathiawar viz. Dhandhuka Dholka Gogha and Viramgam.
The Taluqdars of Gujarat are historically identical with the ruling families of Kathiawar and other Agencies and their loss of political power is generally ascribed to the geographical accident of their estates being situated in the rasti (settled) portion of the province which was brought under the direct rule of the Paramount Power while their kinsmen in the mulkgiri (unsettled) portion continued to be treated as tributaries. The Taluqdars comprise men of varying position ranging from Jurisdictional Chief's holding Taluqdari villages in British districts and the holders of recognised Chieftainships such as Sanad Gamph etc. to the holders of a few acres in a co-parcenary estate who are fast being converted into yeoman cultivators.
The leading characteristic of Taluqdari tenure is that a Taluqdari estate is held neither in gift from the Crown (i.e. alienated) nor in occupancy (i.e. unalienated) but with full proprietary rights antedating the advent of British rule and including ownership of mines minerals and trees. Exceptions to this rule are the Naiks of the Dohad taluka in the Panch Mahals district and the Kasbatis of the Viramgam taluka in Ahmedabad who though included in the definition of Taluqdar (Section 2 of Bombay Act VI of 1888) are considered to hold their estates as permanent lessees under certain conditions.
All Taluqdari estates are held subject to the payment of Jama (Land Revenue) to Government which may be either Udhad (fixed in perpetuity) or fluctuating..
2. The Wanta Tenure-The Wanta (divided) tenure (in contradistinction to Talpad paying full assessment) prevails more or less in certain villages all over Gujarat north of the river Tapi. Wantas held by Taluqdars differ in no way from whole villages owned by that class. The origin of Wanta is generally ascribed to the action of the Mahomedan invaders of Gujarat who deprived the original chiefs of all but one fourth of their possessions which took the name of Wanta (divided). In some cases the Wantas were held free but in the majority of cases a quit-rent was imposed sooner or later by the Paramount Power. No holder of Wanta land has any documentary evidence to prove his title before the enactment of the Summary Settlement Act (VII of 1863) under which some of the Wanta holders accepted Sanads and converted their former lump quit-rent into a numbervar Salami under Act VII of 1863. Other Wantas still continue to pay Udhad Jama. A few villages exist in which the lands are divided into two portions called respectively Wanta and talpad separated by some fixed boundary a river road or stream the village site itself being also divided. Wanta holders are generally but not invariably Taluqdars.
9. Mr. Nanavati therefore contends that in view of this distinct tenure Wanta and Giras now called Taluqdari recognised by the custom of the country and by the Government the plaintiffs admitted Wanta lands could not be said to be Taluqdari lands held on Taluqdari tenure and therefore could not come within the purview of the Act which sought to abolish only the Taluqdari tenure and not the Wanta tenure. In para 6 of the written statement Ex. 36 it is in terms stated defendants do not dispute that the suit lands were Wanta lands held on Udhad jama tenure and that the plaintiff used to pay a Udhad sum of Rs. 9379-6-3 to the Government for the said land. It is also not disputed that the Wanta is a proprietary holding of land.
10. In order to arrive at the true import of the term Taluqdari estate which is not defined by the legislature we must ascertain whether the terms Giras and Girasias and what are now called Taluqdari estates and Taluqdars are used in more than one sense and if so in what sense the legislature has used the expression Taluqdari estate in the Act under our consideration. In Dolsang Bhavsang v. the Collector of Kaira I.L.R. 4 Bombay 367 the Division Bench consisting of Westropp C.J. and Melvill J. considered the terms Wanta lands Girasias and Giras and observed at page 371 to 373 that:
The vicissitudes of the term garasia in Gujarat are remarkable. Its primary signification is a mouthful or a quantity equivalent to it. Mr. Kinloch Forbes says that it was in early times applicable to alienations of land by the sovereign in favour of religious personages or places of worship. Subsequently we find it frequently applied to the rents and profits arising from Wanta land as well as to the land itself and the owner of the land denominated a garasia. Looking to the origin of Wanta land already mentioned we can easily understand how having regard to the primary signification of garas it was used to designate such land and its preceeds. Mr. Kinloch Forbes mentions the frequent application of the same term in the bardic chronicles to the lands given for their subsistence to junior members of the Rajput chieftains families and this sense of the word continued for a long time to be the prevalent if not the exclusive one. Amongst the various meanings given by Professor H.H. Wilson to gras (garas) is lands held by garasiyas in Gujarat. Mr. Robertson describes the Garashiyas as the holders of garas-lands or allowance for the most part Rajputs..
We have generally called them garasias in consequence of their being the ancient hereditary proprietors of the portion of territory they possess in which sense the word giras is used and it is equivalent to asil or cuddeem (Kadim) Mahommedan words which mean root origin foundation and ancient old former.
11. From this decision it is clear that the word Giras or Garas is capable of more than one meaning and that even Wanta lands were designated as Garaslands in the sense that their holders or girasias were ancient hereditary proprietors of the portion of territory they possessed. In Narharsingji Ishvarsingji v. The Secretary of State 43 Bom. L.R. 167 at page 186 where the nature of the tenure of this very same estate was considered and which we have earlier referred to the decision in I.L.R. 4 Bombay 367 was approved that a taluqdari Wanta in Gujarat is neither an alienated nor an unalienated holding. It is a peculiar estate which continues to be the property of its holder under the British rule as it was in pre-British dynasties from ancient times. In Agrarian Reforms in Bombay by Dr. Govindlal D. Patel 1950 edition while discussing the Wanta tenure the learned author at page 77 observed that the tenure is a trace of the Mogal settlement. It is a sort of Taluqdari tenure within taluqdari and Peile calls the Wanta holders as ex-taluqdars. According to Dr. Patel the Wantas are of two kinds(1) Summary Settlement Wantas treated as personal inams in tail-male and (2) taluqdari wantas subject to jama and classed as land specifically reduced. At page 70 also he observed: In Ahmedabad and the Panch Mahals there are entire villages on the taluqdari tenure which are all surveyed and settled. The taluqdars hold the villages on payment to Government of a jama which is subject to a revision at every revision settlement. In Broach and Kaira there are no entire villages on the taluqdari tenure but the taluqdari estates consist of Wantas i.e. one fourth share of the original taluqdari estates. At page 83 the learned author observed:
The term 'Taluqdari' requires to be properly understood. Till the middle of the nineteenth century a taluqdar was called a Grassia or Garashia meaning a person with a Giras. The name seems to have been borrowed from the description of landed proprietors in Upper India who were called taluqdars.
Dandekar in his 'The Law of Land Tenures' Vol. 11912 edition at pages 352-353 also refers to taluqdars as land-holders who were really Garasias. He observed: There is no doubt that they are sprung from an ancient race of the hereditary proprietors who were found by the Mogals at their first appearance in Gujarat possessed of considerable power and wealth. The Mogals managed to expel the whole of them from their estates but on a stubborn resistance being made they felt themselves obliged to restore to the Grassias in the immediate vicinity of the capital Ahmedabad a portion of their lands which is held to this day rent-free as Wanta; while to those situated more remote from the capital and whose resistance was still more resolute restoration of their lands was made in full burdened however with the obligation of paying tribute. This tribute which was annual amounted to about half the net revenue of each estate and was payable in cash. It nowhere appears that the estates were burdened in any other manner. And thus the Girasias were settled by the Mogals as actual proprietors of their estates with the simple liability of paying tribute to the Government. The accession and domination of the Maratha effected no difference whatever in the tenure of the Grassias.
12. Thus these authorities clearly include Wantas in the wider meaning of the terms Giras and Girasias who are now called taluqdars and would include holders not only of the entire villages but also of the Wanta in the sense that they were the ancient hereditary proprietors of all the portion of territory they possessed i.e. they were holders of what once formed part of the ruling Chiefs estate. Mr. Nanavati however strongly contended that this view is not shared by Baden Powell who confines the term taluqdari estate only to the estates retained in full and not to the taluqdari Wanta lands. It would be therefore proper to consider his account of the taluqdari estates in some detail. In Land Systems of British India Vol. III 1842 edition while discussing the origin or double tenures Baden Powell at page 275 states that among the factors which go to the development of land tenures in all parts of India we have always to note the effect of conquests and of internal disruption on the old ruling chiefs estate or domain. After the rule had been taken by the conquerors what was preserved was a landlord estate in some form and not a rulership; when the British rule followed it was bound to do justice as far as possible to all interests in the land; it had to acknowledge a double tenure-the right of the overlord and the right of the soil owners who were reduced to a secondary position. This resulted in what is called the taluqdari tenure of the North-west Province or in a case of superior and inferior holder under the raiyatwari law. In Gujarat according to him most conspicuous overlord tenure was that of the Thakurs (Chiefs) of Rajput clans which are found in the West and South-west talukas of the Ahmedabad district and other similar estates in other districts all of which represented the effect or the disruption of the domain of the old Raja and his fedual chiefs. With reference to their original he bracketted the Wanta the Mewasi and what are now called Taluqdari tenures in the same general class of overlord tenures. The Wantas were merely fragments of estates still held by the descendants of chiefs who were obnoxious to the former conquerors and were reduced accordingly under early Moslem rule; while the Taluqdari estates according to him were estates of chiefs which were preserved to them in Ahmedabad. At page 28 while describing Giras he observed a number of the old Rajput chiefs were called Girasiya (Grassia of many writers); and where such still retain in whole or parts territorial estates they come under the head of taluqdari tenures. At page 281 he discusses the Taluqdari Tenure as another and more important survival of the old Rajput kingdoms in Northern Bombay. The estates that remained fairly preserved or entire-whether originally girasiya estates or other-are now called taluqdari. Tracing the history of the lords family he says in some the chief was driven out and was only allowed a sort of pension as now called Giras allowance. In others a fragment of the estate was left under the name of Wanta. It seems that the Thakurs west of Ahmedabad and towards Kathiawar escaped this fate and retained their estates in some form even when the Rajput rule passed away. It should be observed at once that the term taluqdari was only applied to these estates under Muhammadan rule. The revenue language of those times frequently applied the rather vague term Taluqdar to any local chief whose position it was convenient to tolerate if not directly to recognise. Then he observed that the holders of the estates called taluqdari had various titles. Some were called Girasiya chiefs others holding a single village were called Gameti Naiks etc.. Under the head of taluqdari estates he includes another limited class of tenures because it exhibited a special form of overlord tenure which had become practically identical with the Thakurs estates viz. Kasbati. Its origin was unconnected with the old territorial chiefs and Kasbatis in Ahmedabad district were described as the descendants of rich soldiers who by lending money and standing security for the payment of revenue gradually raised themselves to the position of landlords. This account of Baden Powell makes it clear that the term taluqdar in the revenue language was rather a vague term and taluqdari was applied to denote estates that remained fairly preserved or entire as also Thakurs or Chiefs estate which remained in whole or in part. Even when describing the North-Western Province in Vol. II at pages 157-158 Baden Powell observed that where besides the village body as proprietor we have a second proprietary interest between the cultivator and the State; where that is the case we have the taluqdari tenure. The double tenure is spoken as taluqdari not because there was always a defined grant called taluqdari nor because the superior proprietor was always a taluqdar but because the State of things is most analogous to a properly so called taluqdari tenure of Oudh and because the term taluqdar is essentially indefinite and covers almost any variety of superior position by virtue of which some person got the management and revenue collection and responsibility into his hands and so may have succeeded to a kind of proprietary interest in the estate. At page 214 of the same Volume II while considering The Oudh Land-system Baden Powel summarized by saying that the term Taluqdar cannot be defined exactly because the holder of the estate as it now is has had a various origin and the pure origin of Taluqdar call be traced in the descendants and representatives of the old Hindu Raj however subdivided or dismembered. At page 316 Vol. I also the learned author observed: In Gujarat also the immigration of martial tribes of the Rajput type and the government by chiefs had left traces of an overlord or taluqdari tenure over the villages. At page 223 he observed that the claim of full proprietorship including waste lands may be asserted not on the basis of the right of reclaiming waste lands on first clearance but on the basis of the birth right of inheritance by the ruling chiefs by some form of superior might their birth right.
13. This account of Baden Powell leaves no doubt that the term taluqdar was indefinite and taluqdari estate would include Thakurs or chiefs estate where full proprietorship was claimed on the basis of overlordship by inheritance of the Crown right. Dandekar in his Law of Land Tenure Vol. I at page 358 refers to Richardsons Persean Arabic and English Dictionary (1852) page 356; Wilsons Glossary (1855) page 497 and says The word taalluk or talook literally means being suspended to dependent upon being devoted wholly given upto; a manor lordship; a small Zamindari a talook or division or district. In Gujarat especially in Kaira and Panch Mahals Districts and the Rewakantha etc. the expression taluk is applied to a group of villages or even to a single village or an estate held by a single individual or a body of individuals.
14. Therefore the term taluqdari estate has really two meanings one in which it covered only estates which were fairly preserved and the other in which it included even fragments of the larger estates which were still held by Thakurs or local chiefs whose position it was convenient to tolerate if not directly to recognise and which were accordingly reduced fragments of their original whole estates. All of them formed a class of overlord or taluqdari tenure in the wider sense viz. the tenure of taluqdars or other similar overlords who exercised over their landed estates full proprietary rights of the Crown by inheritance by virtue of their might or the status as the ruling chiefs. In this wider sense the Taluqdari estates would include Wanta lands and even Mewasi estates of full proprietorship and what is popularly called taluqdari and even Kasbati estates.
15. In view of these two shades of meaning of the term taluqdar and taluqdari estates we must now consider the history of the legislation with regard to the Taluqdar and the Taluqdari estates its scope and object and the mischief or defect for which it was intended to provide which are all matters which in case of verbal ambiguity can be legitimately considered for the purpose of interpretation. We must first consider the preamble of the earlier legislation which can be consulted in case of doubt as an index of the intention of the legislature though not conclusive as a statement of extrinsic fact. The preamble of the Ahmedabad Taluqdars Act 1862 Bombay Act No. VI of 1862 states that whereas the lands held in the Zilla of Ahmedabad in the Province of Gujarat under the title of taluqdari estates are now only held on leasehold tenure determinable at the pleasure of Government and whereas it has been brought to the notice of Government that many of the taluqdars are in embarrassed circumstances and have borrowed money on the security of their landed estates; and whereas such of the said landed estates as are of the taluqdari tenure aforesaid could not and cannot be lawfully charged encumbered or alienated; and whereas it is expedient to enable the said taluqdars to effect a settlement of their debts and liabilities the Act was enacted as a relief measure. This preamble proceeded on an incorrect assumption as explained in the decision about this very estate in 43 Bom. L.R. 167 at page 187. As is clear from Section 20 itself under which the Taluqdars were meant to be restored to their position of an absolute proprietor of their estate on the termination of management these estates could not have been held on a leasehold tenure determinable at the pleasure of the Government. The Legislature was for the first time interfering with these full proprietary estates and it might be to justify the interference that they might have been wrongly described as having lesser interest than proprietorship or because the system of annual leases had been introduced which proved to be a remedy worse than the disease. The taluqdars having fallen into pecuniary embarrassment and having become impoverished and needy it was sought to improve their position by restoring to them their full proprietorship as they were class of gentlemen who were said to have been living beyond their means and had got very much embarrassed and because the Government wanted to maintain the status and order of Taluqdars as a matter of policy. This enactment was thus the first attempt by the British Government to ameliorate the condition of the Ahmedabad Zilla Taluqdars by taking up for a limited period the management of their indebted landed estate exempting the holders of such estates from arrest providing for a scheme for settlement of their debts and disabling them from incurring further debts binding their estates during the management and finally on termination of management to restore them their full proprietorship of their landed estate in an unembarrassed state. Section I empowers the Government to make a declaration vesting in a Special Officer management of landed estates of a taluqdar of any description of tenure if debts or liabilities were equal to or exceeded five times annual income therefrom. Mr. Nanavati contended that throughout this Act the Legislature was dealing with the estate of a Taluqdar of any description of tenure which would include lands held by a Taluqdar even on an occupancy (unalienated) or Inam (alienated) tenure as well and not only on the taluqdari tenure as a Taluqdar. We cannot agree with him because Section 20 in terms provides that from and after the expiration of the period of management of the estate of any taluqdar the Taluqdar shall be absolute proprietor of the said landed estate as regards succession to and possession management and transfer of the same subject to such land tax as the Provincial Government may be pleased to reserve. Therefore the estate contemplated to be taken under the management under the Act must be landed estates in which the Taluqdars had originally absolute proprietorship and that is why the preamble speaks of the lands under the title of Taluqdari estate and such of the said landed estates as are of the taluqdari tenure aforesaid. Thus the legislation at least gives a clue to the meaning of the land held under the title of taluqdari estate which is irrespective of the description of the tenure as were held in absolute proprietorship by the taluqdar that is on the taluqdari or other overlord tenure of the same class; and thus once formed part of the original chiefs or Thakurs estate. Then in 1871 a similar Act(India Act XV of 1871) with similar object was passed for the taluqdars of Broach which was however repealed by the Broach and Kaira Incumbered Estates Act (India Act No. XIV of 1877) which was in term repealed by the Broach and Kaira Incumbered Estates Act 1881 (Act XXI of 1881 The object of these Acts was to relieve from incumbrance the estates of Thakurs in Broach and Kaira by taking over the management of their estates and the settlement of their debts. We were not referred to the first two repealed Acts but in the Act of 1877 the term thakur was defined to mean also taluqdar jagirdar and kasbati and such other class of holders of estates as the Provincial Government may declare to be Thakurs for the purpose of the Act. It may also be noted that under Section 2 the thakur or any other heirs to such thakur could apply for benefits under the Act and the order of management under Section 8 was to extend to all immoveable property to which the debtor was entitled to in his own right. These Acts do not use the expression taluqdari estates and would not be directly helpful but would at least show that the relief was given to Thakurs as such who formed a class of Taluqdars Jagirdars Kasbati and similar full proprietary landholders or the overlords. Besides if we turn to Section 38 whereby from certain provisions of the Act some Thakurs were exempted whose estates were under management we find that in terms the Thakor of Amod was specified by the Legislature to have been so exempted. Finally we come to the Gujarat Taluqdars Act 1888 Bombay Act No. VI of 1888 (hereinafter referred to as the Taluqdars Act) which was applied to all the Taluqdars of Gujarat. The Statement of Objects and Reasons as set out at page 84 of Dr. Patels Agrarian Reforms in Bombay 1950 edition brings out in a nutshell the rights of taluqdars in their estates and may be usefully referred to find out circumstances in which the said legislation was enacted.
The peculiarity of the tenure of taluqdars and similar land-holders lies in this that over their landed estates they exercise the proprietary right of the Crown by inheritance just as the native chiefs and their kinsmen do in Kathiawar. The Government revenue paid by taluqdars was originally a tribute and the rights of Government are limited to that payment. Government is not the owner of the land in these estates waste or other. But as there is no legal customary limit to this Government rent charge and the taluqdars are now simply private land-holders under the British law there is no objection whatever to treating their relations with Government as payers of land revenue under the Land Revenue Code provided that careful regard is had to their peculiar status in fitting them into the system.
In the North-West Provinces and Oudh matters affecting similar classes of landholoers and outside the scope of the Incumbered Estates Act are deals with in the Land Revenue Acts. But in the Bombay Legislation which deals with landed interests such tenures such as that of Talukdars are not specifically recognised. The Land Revenue Code (Bombay Act V of 1819) makes an exhaustive division of all lands for the purposes of the Act into alienated and unalienated. Now the estates of taluqdars and the like are not alienated the interpretation of which term is transferred in so far as the rights of Government to payment of rent or land revenue are concerned wholly or partially to the ownership of any person for the taluqdari estates have never been in the hands of Government and they are liable to any revenue payment of rent charge which Government thinks it equitable to impose. In other words the taluqdars are not grantees Nor again are their estates unalienated occupancies in the full sense of all that the Land Revenue Code enacts as to such holdings.
The preamble of the Gujarat Taluqdars Act 1888 states that it was enacted to remove doubts as to the applicability of certain portion of the Bombay Land Revenue Code 1879 to estates held by certain superior holders in the districts of Ahmedabad Kaira Broach and the Panch Mahals and to make special provision for the revenue administration of the said estates and for the partition thereof. It extended to the districts of Ahmedabad Kaira Broach and the Panch Mahals. In Section 2 Clause (a) the definition of Taluqdari includes a thakur mehwassi kasbati and naik and a mulgameti who holds land directly from the Crown. Section 4 provides for survey of a taluqdari estate under the Code. Part III puts some resrtictions on the process of partition so as to retard the progress of the decay of these estates. Part IV provided for the Jama payable by the taluqdar and for the management of the taluqdars estate by the Government officers and For ascertainment and liquidation of liabilities of Taluqdar whose estates were taken under the management. Section 30 in the said part provided for police charges payable by the taluqdar. Then in part V Section 31 barred incumbrances on a taluqdars estates beyond taluqdars own life except with the consent of the Taluqdari Settlement Officer and of all alienations except with the consent of the Provincial Government. Section 33 provided for application of the Code to the Taluqdari estate. Even though in the said Act the Legislature in order to give relief to all Taluqdars had given an extensive meaning to the term taluqdar in Section 2(1)(a) Mr. Nanavati contended that the words taluqdars estate and taluqdari estate having been separately used by the Legislature they had different connotations. We are not concerned with the expression taluqdars estate but the expression taluqdari estate which is clearly the estate to which said Act extended. Section 33 in terms says that certain sections in the Code should not be deemed to apply to any estates to which this Act extends. In view of the definition of the word Taluqdar in Section 2(1)(a) the taluqdari estate would clearly include all the estates held by a taluqdar as thakurs or chiefs estate and the taluqdari tenure would therefore be in the sense of the overlord tenure. We were referred to certain decisions where the expression taluqdari estate has been judicially interpreted. In Parshottam Vallu v. Bai Punji 4 Born. L.R. 817 the Division Bench of the Bombay High Court consisting of Lawrence Jenkins C.J. and Batty J. observed that the terms taluqdars estate and taluqdari estate were used in the Act to denote different matters. The expression taluqdari estate in Section 21 of the Act was held to have been used as an estate of Taluqdari tenure. In Khodabhai Sartansing v. Chhaganlal Kishordas 9 Bom. L.R. 1122 the Division Bench consisting of Russel A.C.J. and Heaton J. in terms interpreted the difference between the said two terms and held that as the said Act was evidently aimed at preserving the estates of the gentlemen in high position in the particular districts (who were superior landlords) it would be straining the operation of the said Act too widely to hold that it applied even to the Taluqdars private investment. The Taluqdari estate was in terms confined to the estate held by them as taluqdars on which the Act was especially designed to operate. Heaton J. also observed that one possible difference which appeared to him was that the expression taluqdari estate covered the case of an estate which was the joint property of several taluqdars; while the expression taluqdars estate indicated the property of a taluqdar or of a taluqdar together with his sons. In Bichubha Mansangji v. Vela Dhanji Patel 11 Bom L.R. 736 the Division Bench consisting of Chandaverkar A.C.J. and Heaton J. treated the matter as res integra and following the decision in 9 Bom. L.R. 122 held that the expression Taluqdari estate meant only the estate held by a taluqdar on Taluqdari tenure and not property held on any ordinary tenure which was distinguishable from the former e.g. the land held as an occupant or as an Inamdar which could not be said to have been held by a Taluqdar as such. Finally, ill the case of The Taluqdari Settlement Officer v. Chhaganlal Dwarkadas 12 Bom. L.R. 903 the Division Bench consisting of Sir Basil D. Scott C.J. and Batchelor J. following the last two earlier decisions held that the expression taluqdari estate was used in Section 31 in a technical sense limited to the Taluqdari interest in the estate held by a taluqdar by reason of his status as a Taluqdar and so the Wanta lands entered as alienated lands under the Code could not be regarded as lands held upon Taluqdari tenure in the strict sense of the word did not form part of the taluqdari estate. Thus the term taluqdari estate as judicially interpreted also meant the estate held by a taluqdar as a Taluqdar i.e. on the peculiar taluqdari tenure and not the property held on any ordinary tenure which was distinguishable from the former as for example the land as an occupant or as an Inamdar or an alienated land. Looking to the expression Taluqdar as used in Section 2(1)(a) the taluqdari estate held by a taluqdar as such and the taluqdari tenure would obviously be the expressions used in the wider sense of any overlord tenure of the same class and which all formed part of the chiefs or thakurs estate as aforesaid. We cannot agree with Mr. Nanavati that in the Taluqdars Act the expression taluqdri estate was used in the narrow sense so as to cover only the estates which were fairly preserved as a whole and not the fragments which were retained like Wanta which originally formed part of the Taluqdari chiefs estate. In all these legislations the Legislature has either given a wider meaning to the word Taluqdari estate? by including within its scope any estate held by a Taluqdar as such of any description of proprietary tenure of an overlord or by giving wider meaning to the word taluqdar or Thakur so as to include all the chiefs estate of the same class. As seen from the original history in Ahmedabad and Panch Mahals the entire villages were held on taluqdari tenure while in Broach and Kaira the entire villages are not held on the taluqdari tenure Therefore when the Act is extended to all these estates the taluqdari estates must have wider connotation so as to include all the estates which originally formed part of the chiefs estates whether retained as a whole or as a fragment like a Wanta.
16. We may mention that Mr. Nanavati also relied on the fact that there were certain distinctive features which have been mentioned at page 226 of the Bombay Survey and Settlement Manual. The said features are:
(1) Under Section 31 of the Taluqdars Act there are restrictions on the alienations,
(2) A taluqdar is liable for the cost of the village police force employed in his village, and
(3) there are restrictions on the partition.
But these features of the estate held on the taluqdari tenure arise from the special provisions in Taluqdars Act and it is not shown by any evidence that these features do not apply to the Wanta lands held by the taluqdars. In fact the Taluqdars Act would be applicable to all the Thakurs estates as included in the term Taluqdar under the Taluqdars Act. From the history of the Taluqdari and the Wanta tenure it appears that originally there was some misconception about the Taluqdari tenure and it was assumed to be a leasehold tenure while the Wanta tenure was the freehold tenure. This misconception however was realised when the Taluqdars Act was passed and as we have referred to in Section 20 a provision was made for restoration of the proprietary estates taken under management on the termination of the lease of the management. Maintenance of the village police force was also as provided in Section 30 of the Taluqdars Act. The restriction on alienations and partition are also imposed by the Taluqdars Act. Therefore we do not think that any of the distinctive features can be relied upon in support of the contention urged by Mr. Nanavati that the term taluqdari estate is not used in the wider sense of a taluqdari estate held on any overlord tenure of the same class.
17. Coming to the present Act which finally completes the history of this legislation relating to Taluqdar the statement of objects and reasons could be usefully referred to with advantage to find out the circumstances in which the said Act was passed and the mischief which it intended to remedy. It is found in the Bombay Government Gazette Part V dated 13 July 1949 at page 191. The Taluqdari tenure obtains in the four districts of Gujarat viz. Ahmedabad Kaira Broach and Panch Mahals. The Taluqdars came into being as a result of the unsettled political conditions of certain periods in our history. The Taluqdari villages and estates are at present governed by the Gujarat Taluqdars Act 1888 The Taluqdars hold them subject to the payment of jama which is either fixed or fluctuating. Government attempted in the past to rehabilitate the landed gentry of the Taluqdars by liberal grants of loans and management of their estates by special Acts such as (1) the Ahmedabad Taluqdars Act 1862 (2) the Broach and Kaira Incumbered Estates Act 1881 and (3) the Gujarat Taluqdars Act 1888 However these Acts had not the desired effect of adequately ameliorating their conditions generally. The relations of the tenants and the Taluqdars have already been settled under the Bombay Tenancy and Agricultural Lands Act 1948 Government now proposes to settle the relations of Taluqdars with Government. As a measure of agrarian reform the Government proposes to abolish this tenure altogether. Thus in the statement of objects and reasons we get a very clear picture of the Taluqdars estates which are sought to be covered by the present Act. There were villages and estates which were governed by the Taluqdars Act 1888 The tenure under which those estates were held by all the taluqdars Act in the wider sense used in the overlord tenure and it was that tenure which was intended to be abolished. That is why in the preamble of the Act it is stated that the object is to abolish the Taluqdari tenure prevailing in the districts of Ahmedabad Kaira Broach and Panch-Mahals and Section 2(4) gives a statutory definition of taluqdari tenure as meaning a land tenure on which the taluqdari land is held and taluqdari land in turn is defined to mean the land forming part of a taluqdari estate and including the lands forming part of such estate and held by a cadet of a taluqdars family for the purpose of maintenance. In view of the historical background the legislative history there is no doubt that the taluqdari tenure which is abolished by the Act is the tenure on which the taluqdari land forming part of taluqdari estate in the wider sense of that term has been held. In Rathod Bhimbhai Masrubhai v. the State of Bombay : 2SCR393 the question had arisen before the Supreme Court whether under the Act the owners of the Lal-liti lands which were the lands alienated by the Taluqdar were covered within the scope of the Act on the ground that Lal-liti lands formed part of a taluqdari estate even though in those lands the Taluqdars had no subsisting interest left after alienation. The point which we have to consider had not arisen for decision in that case. However their Lordships approved the decisions of the Bombay High Court at page 441 and held as under:
Therefore the expression Taluqdari estate is a comprehensive expression including all lands which at one time belonged to the Taluqdar. In the eyes of the law although the lands might have been alienated by the Taluqdar they still form part of the estate. Therefore the expression is more an expression indicating a particular tenure rather than a particular interest enjoyed by the Taluqdar.... Therefore if the lands the subject matter of the petition did at any time belong to the Taluqdar which he subsequently alienated they would be covered by the definition in the Act of 1949 notwithstanding the fact that when the Act was passed the Taluqdar had no interest in those lands.
The Supreme Court held that it agreed with the view thus expressed by the High Court. Having regards to the history of the Lal-liti lands and the provisions of the Gujarat Taluqdqrs Act 1888 it was held that Lalliti lands were lands which formed part of the Taluqdari estate even though no Jama was actually paid to the Taluqdar or to the Government. This decision though not directly on the point under our consideration it makes one thing clear that the expression Taluqdari estate indicated a particular tenure and would comprise the entire estate which originally belonged to the taluqdar as such. The peculiarity of this tenure in the wider sense as we have already seem is not in the original chiefs estate being retained in full or in part but in the fact that the Taluqdars and similar chiefs or thakurs exercised over the landed estate their full proprietary rights of the Crown by inheritance and that they paid originally a tribute to the Government. The Government was not the owner of the land in these estates whether waste or otherwise. It was neither alienated or unalienated holding but a peculiar overlord tenure of full proprietorship. Even in the passage relied upon by Mr. Nanavati from the Bombay Survey and Settlement Manual at page 227 which we have already referred to it is already stated that the Wantas held by Taluqdars differ in no way from the whole villages owned by that class. Wanta holders are generally but not invariably Taluqdars. When the Act was in terms extended not only to Ahmedabad district but also to Broach and Kaira districts where Wanta estates prevailed it would not be possible to believe that the tenure of such taluqdari Wantas which was of the same class as this peculiar overlord tenure was not abolished. In fact the artificial definition of the term taluqdari tenure in Section 2(4) suggests that the expression is used in its wider sense.
18. Mr. Nanavati however argued that the word taluqdari tenure would have the narrow meaning and not the wider meaning of any similar proprietary overlord tenure so as to include in the expression taluqdari estate not only the Taluqdari villages as in Ahmedabad but also any similar Wanta or Mewasi estates. For this purpose he relied on the fact that the Legislature had also passed another distinct legislation to abolish Mewasi tenure viz. The Panch Mahals Mewasi Tenure Abolition Act. 1949 which would have been wholly unnecessary on this wider interpretation. The Act under our consideration and this Act were assented to on the same day viz. 21-1-1950. There would have been some force in this argument but for the fact that the Mewasi tenure in Panch Mahals is different from that prevailing in Ahmedabad and Kaira districts. At page 39 Dr. Patel in Agrarian Reforms in Bombay says:
These villages of the Ahmedabad and Kaira district which are essentially taluqdari in character have been dealt with in the Chapter on the Taluqdari tenure. This tenure is exactly similar to that of the Taluqdari villages of the Ahmedabad District while the tenure of Mehwasi Patels in the Panch Mahals is essentially different and they are at present lease holders with certain rights under the agreements executed by them.
That is why these lease-holder type Mewasi tenure is abolished by the other legislation only in Panch Mahals while the proprietary Mewasi tenure which was similar to the Taluqdari tenure and which prevailed in the Ahmedabad and Kaira districts is abolished by the Act under our consideration. This would afford intrinsic evidence in the Act that it deals with the taluqdar; estates in the wider sense of estates held by all kinds of taluqdars whether Wanta holder Mewasi Kasbati or other thakurs or chiefs existed in the Ahmedabad Broach. Kaira and Panch Mahals districts and all of which were subjected to Taluqdari legislation from time to time for amelioration of conditions of these taluqdars. When even with the full help proposed and all the relief measures the Government found the task of restoration of this order of this landed gentry utterly hopeless it seems to have decided to abolish this peculiar tenure.
19. There is also other intrinsic evidence in Section 6 of the Act. Section 6 runs as under:
All public roads lanes and paths the bridges ditches dikes and fences on or beside the same the bed of the sea and of harbour creeks below high water mark and of rivers streams nallas lakes walls and tanks and all canals and water courses and all standing and flowing water all unbuilt villages site lands all waste lands and all uncultivated lands (excluding lands used for building or other non-agricultural purposes) which are not situate within the limits of the Wantas belonging to a taluqdar in a taluqdari estate shall except in so far as any rights of any person other than the taluqdar may be established in and over the same and except as may otherwise be provided by any law for the time being in force vest in and,shall be deemed to be with all rights in or over the same or appertaining thereto the property of the Government and all rights held by a taluqdar in such property shall be deemed to have been extinguished and it shall be lawful for the Collector subject to the general or special orders of the Commissioner to dispose them of as he deems fit subject always to the rights of way and other rights of the public or of individuals legally subsisting.
The effect of this Section is to vest all public roads wanta lands and other such property not situate in wantas only in the Government and to extinguish the taluqdars rights in such property for which the Section 7 provides for compensation. The material words are which are not situate within the limits of the wantas belonging to a Taluqdar in a taluqdari estate. The words in a taluqdari estate cannot qualify the Wantas but public roads and other properties specified therein so as to indicate their location as in other similar Acts. This exclusion of public roads waste lands etc. in wantas would be necessary only if wantas would normally form part of Taluqdari estates covered by the Act and Section 6 would therefore afford an indication that taluqdari wantas were within the purview of the Act. Mr. Nanavati however argued that even without such exclusion as only taluqdari tenure was abolished and not wanta tenure and it was only by way of abundant caution that this exclusion was made more specific. He also suggested that in some oases a public road stream or lake may be situate both in the limits of wanta as well as Talpad land and therefore the legislature must have thought it fit to the exclude the entire public road stream lake etc. from the scope of Section 6. This explanation does not appeal to us because is a public road etc. is situate in Talpad land it would have been more convenient to vest even a portion of it situate in a Wanta in the Government rather than to exclude the same. It may be that in view of the decision in 43 Bom. L.R. 167 which we have earlier referred to regarding this very estate public roads waste lands etc. in the taluqdari wanta of which the taluqdars were held to be full proprietors and which were held not to vest in the Government under Section 37 of the Code the position was left untouched at the time. We are not concerned with what might be the the reason for such exclusion but one thing is certain that the Legislature by such exclusion indicated its legislative intention to cover the wanta lands in the scope of the taluqdari estates. There was no similar exclusion in Section 5 of the Act of Wanta lands and therefore as part of taluqdari lands they would be liable to payment of land revenue and the taluqdar holding any such land would be entered as an occupant under the Code. Here also we find no inconsistency as suggested by Mr. Nanavati for this particular incident of the tenure of the property right of the Taluqdar in public properties mentioned in Section 6 being continued because Section 3 in terms provides that save as expressly provided by or under the provisions of the Act all the incidents of the said tenure attaching to any land comprised in taluqdari estate shall be deemed to have been extinguished. Further Section 16 of the Act is also suggestive as it declares that subject to the provisions of the Act the Code shall apply to all taluqdari lands subject to the modifications specified in Schedule I in which also we find the expression villages or portions of villages comprised in a taluqdari estate. This would be an additional indication to show that the Taluqdari estate covered by the Act would comprise not only of the whole villages but even of the portions thereof like wantas.
21. Finally Mr. Nanavati sought to rely on the provisions of the Gujarat Surviving Alienations Abolitions Act 1963 Acts No. XXXXII of 1963 assented to on 22nd July 1963 on the general principle of parliamentary exposition or subsequent legislation as an aid to construction of prior legislation. No doubt he was advancing this contention without making any concession on his part that the later Act would cover in its a bit the suit land. We also would not express any opinion on this aspect as we are only concerned with finding out whether the Act applies to the plaintiffs suit lands which are Wanta lands or not. According to Mr. Nanavati that later Act was as stated in its preamble for the purpose of abolishing certain alienations which were not a affected by the enactments so far enacted for abolition of various kinds of alienations. Section 2(3) artificially defines alienation as meaning-
(a) any right in respect of an aghat land enjoyed as aghat holder immediately before the appointed day
(b) any right in respect of Taluqdari Wanta enjoyed by the holder thereof immediately before the appointed day
(c) any right with or without any condition of service in respect of any other land village or portion of a village and consisting of
(i) any proprietary interest in the soil coupled or not coupled with exemption from the payment of the whole or part of the land revenue or
(ii) a right only to the land revenue or a share of land revenue of the land village or portion of a village enjoyed by the holder thereof for the time being and subsisting immediately before the appointed day in limitation of the right of the State Government to assess the land or village or portion of a village to land revenue in accordance with the Code whether by virtue of an express grant or recognition as a grant by the ruling authority for the time being or otherwise, or...
Section 2(1) defines aghat land as meaning land originally belonging to a taluqdar of a taluka or estate in the former Kathiawar but sold by him to any person by executing a sale deed before the merger of his taluka or estate as the case may be in the former State of Saurashtra under an agreement executed by him in accordance with that Covenant without claiming or accepting privy purse. Section 2(4) defines alienated land as meaning an aghat land Taluqdari Wanta or any other land village or portion of a village held under an alienation. Section 2 Clause (20) defines Taluqdari Wanta as meaning an alienation comprising of a Wanta belonging to a Taluqdar in so far as it is not affected by the Bombay Taluqdari Tenure Abolition Act 1949 And the Bombay Personal Inams Abolition Act 1952 Section 6 abolished all alienations together with their incidents and alienated lands were made liable to payment of land revenue. Section 11 provides for vesting of all public roads etc. situate in alienated land in the Government and for extinguishment of all rights held by an alienee in such property and Section 14 provided compensation for that purpose. Mr. Nanavati therefore argued that the Legislature had clearly assumed in this subsequent legislation that there existed certain alienations like Taluqdari Wanta which tenure was not abolished and for which purpose this Act was enacted. That would clearly show that the Wanta lands and their tenure were not abolished at least till that day. Now it is well settled the doctrine of parliamentary exposition which Mr. Nanavati resorts to can have no application when the subsequent statute itself is based on an incorrect assumption (Hariprasad Shivshanker Shukla v. A.D. Divelkar A.I.R. 1957 S.C. 121). In fact in this later Act in Section 2(20) the Legislature has in terms defined. Taluqdari Wanta as an alienation comprising of a Wanta belonging to a Taluqdar in so far as it is not affected by the Bombay Taluqdari Tenure Abolition Act 1949 and the Bombay Personal Inams Abolition Act 1952 Therefore the legislation is clearly by way of abundant caution to abolish the surviving alienation and its tenure in so far as it was not already affected. As stated earlier Wantas were of two kinds as referred to by Dr. Patel viz. (1) Summary Settlement Wantas treated as personal Inams tail male and (2) Talukdari Wantas; and therefore the Legislature appears to have in terms clarified its intention of affecting the Wanta in so far as they were not already affected. In fact the definition of an alienation in Section 2 Clause (3)(c) was of the widest amplitude but still the Taluqdari wantas were also in terms specifically covered in so far as they were not already affected. The Legislature did not stop short at this. In Section 4 which in Clause (d) provided that nothing in that Act shall apply to any land tenure to which the provisions of any of the laws specified in the Schedule shall apply in order to clarify its intention that so far as the Taluqdari Tenure Abolition Act 1949 was concerned it was the specific intention of the Legislature once again to hit the taluqdari tenure a specific rider is added in Schedule I item 3 by the words the Bombay Taluqdari Tenure Abolition Act 1949 save as provided in this Act. In the absence of this rider there would have been some scope for the argument that Section 4 was in terms specific to the effect that it was not again touching the tenures which were already abolished by the earlier laws. But the rider, save as provided in this Act. shows that same tenure was intended to be once again hit in so far as some incident of that tenure or some other exemption still survived after the Act. Because by Section 6 of the Act public roads waste lands etc. in Wanta lands were excluded and these incidents of the Taluqdari tenure in Taluqdari Wanta were saved this enactment became necessary for abolishing the surviving incidents. Therefore Section 2 Clause (20) and Section 4 Clause (c) read with the rider against item 3 in the Schedule would be a complete answer to any argument founded on the doctrine of parliamentary exposition. It is not necessary for us to express any final opinion on the true construction of the relevant provisions of this later Act but one thing is certain that there is nothing in the Act which would indicate that Taluqdari wantas which really formed part of taluqdari estates were not covered within the scope of the Bombay Taluqdari Tenure Abolition Act 1949.
22. Finally the Government wanted to rely on the evidence of the conduct of the plaintiffs ancestors viz. (1) that the suit lands were under management from 1872 to 1896 and (2) that a detailed survey was made under Section 4 of the Taluqdars Act of the suit lands which was started in 1912 and was completed in 1923 and (3) that even in the claim for compensation under the Act plaintiffs father had described suit lands as taluqdari lands. No evidence was led in this suit for the first two factors but in the earlier decision in 43 Bom. L.R. 167 these materials were relied upon. The order of compensation Ex. 102 in this case was relied upon for the third question. In our view the conduct of the plaintiffs ancestors would not be relevant for the simple reason that there could be no estoppel against a statute. If the Act did not hit the Wanta land as forming part of Taluqdari lands and did not abolish the tenure under which they were held no conduct of the plaintiffs ancestors would enable us to hold otherwise. Therefore we have not relied upon any such piece of conduct in coming to our conclusions on clear interpretation of the term taluqdari estate in Section 2 Clause (3) of the Act in the light of the historical background the legislative history and the scope and object of the Act.
23. We therefore hold that the suit Wanta lands were taluqdari lands and were covered under Section 5(1) of the Act and we come to the same conclusion as the learned trial Judge though on a different reasoning.
24. The next question is as regards exemption under Section 5(2)(b) which would be available only if the plaintiff proves that the right to pay Jama was under any agreement or settlement recognised under Section 23 or under a declaration made under Section 22 of the Talukdars Act and which could continue so long as such an agreement or declaration remained in force by virtue of the saving Clause in Section 17(c) which saves such a declaration or recognised agreement or settlement. Now Section 23 of the Talukdars Act provided as under:
23(1) Nothing in this Act shall be deemed to affect the validity of any agreement heretofore entered into by or with a taluqdar and still in force as to the amount of his jama nor any settlement of the amount of jama made by or under the orders of the Provincial Government for a term of years and still in force.
(2) Every such agreeMent and settlement shall have effect as if this Act had not been passed.
Mr. Nanavati also admits that there is no order by or under which the amount of Jama was settled for a specific term of years so as to fall within the latter part of Section 23. He however relied on the first part of Section 23. In the plaint para 6 his case was of a specific agreement entered into in 1876 as under:
The said amount of tribute and Peshkush which was originally in the nature of a political tribute was agreed to be commuted into and accepted as fixed amount permanently in 1876 A.D. or thereabout. This agreement made in the year 1876 by the British Government is binding on the defendant and the State of Bombay. The said agreement is admitted by the representatives of the British Government in their correspondence with the plaintiffs predecessor and ancestors. The Collector of Broach in his letter addressed to the plaintiff on 25th September 1918 has distinctly admitted the rights of the plaintiff and the agreement to pay a fixed sum in perpetuity as is mentioned and referred to in Section 23 of the Gujarat Taluqdars Act 1888 The plaintiff therefore submits that there is or there is deemed to have been an agreement or a settlement between him and the Government which has been recognised under Section 23 of the Gujarat Taluqdars Act admitting his right to pay a fixed sum only.
25. No such agreement of 1876 or thereabout as pleaded in the plaint has been proved and Mr. Nanavati admits that there is no express agreement entered into by or with the plaintiffs predecessors before the Taluqdars Act which was in force on the date of that Act viz. 25th March 1889 as to the amount of Jama but he based his case on an implied agreement. For this purpose he strongly relied on the resolution of the Governor-in-Council at Ex. 106 dated 25th August 1926 in pursuance to his request to the Government to recognise that the taluqdars were hereditary proprietors of their estates subject to the payment of Udhad Jama and Peshkush.
Resolution in para 2 is to the following effect:
Resolution No. 1: The Governor-in-Council is pleased to pass orders as desired but in a slightly modified form. Such modification is necessary because theEstates of the Thakors as a whole comprise land held on Udhad Jama summary settlement and Government tenures respectively and it is admitted that such a declaration could apply only to the first of the above categories. At the same time it is also desirable to make it clear under what law the Peshkush is payable to Government.
The Governor-in-Council is accordingly pleased to declare that Government recognise that the Thakors of Amod and Kherwada ale the hereditary proprietors of those portions of their estates which are on the Udhad Jama tenure and such subject to the payment as Jama under the Gujarat Taluqdars Act of Udhad Jama and Peshkush and that while certain provisions of the Land Revenue Code and other laws are applicable to such portions their status in respect thereto differs from that of an occupant under the Land Revenue Code.
26. Mr. Nanavati urged that as his Jama was declared as payable under the Taluqdars Act and as there was no declaration under Section 22 nor an order for a specific term as contemplated in the later part of Section 23 the Jama must be deemed to be payable under the agreement under the earlier part of Section 23. Even under that earlier part of Section 23 the agreement recognised thereunder must have been entered into by or with the Taluqdar before the Taluqdars Act and must be in force on that date when that Act came into force i.e. 25-3-1889. Further the exemption under Section 5(2)(b) was attracted only for the period during which such agreement remained in force. Prima facie the words entered into would require express agreement. Even if the implied agreement may be sufficient it could only be inferred from existence of circumstances which would lead to the necessary inference that the sovereign was entering into a definite contract with the Taluqdar concerned. An agreement always rests on the consensus of mind of the two parties entering into the bargain. Nothing is shown to indicate the circumstances in which any such agreement was entered by any sort of negotiations or offer and acceptance. Such an agreement must not only be shown to have been entered into prior to 25-3-1889 but further it must be shown that by that agreement the sovereign agreed to fix the Jama in perpetuity. The order embodied in the Government Resolution at Ex. 106 does not rest on any agreement whatsoever. We therefore agree with the lower Court that the plaintiff has failed to prove any such agreement alleged or otherwise so as to entitle him to claim any exemption under Section 5(2)(b) from the operation of Section 5 of the Act. The plaintiffs suit lands were therefore covered by Section 5(1) of the Act and the plaintiff was not entitled to any relief whatsoever. The plaintiffs appeal must therefore fail.
27. Mr. Nanavati however urged that the lower Court was wrong in the order passed at Ex. 56 on 28th March 1958 regarding valuation of the suit for the purpose of jurisdiction and pleaders fees by holding that the suit was in substance for a declaratory decree and was covered under Article 17 Clause (iii) of Schedule II of the Court Fees Act 1870 and in ordering the plaintiff to amend his suit on the basis of the market value of the suit lands. He pointed out that by the notice Ex. 77 dated 17 December 1953 the Government had threatened recovery and on 5th February 1955 an order was passed disallowing the plaintiffs claim fo exemption and directing recovery of full assessment for the suit lands with effect from 1-8-1953. The plaintiff was therefore constrained to file the suit for a declaration that the suit lands were of his absolute property and not taluqdari lands and that he was liable to pay only a fixed sum of Rs. 9379-6-3 as assessment and the prayers for injunction restraining the State Government from applying Section 5(1) of the Act and from levying the assessment under the Code and from entering his name as an occupant and from claiming records on the assumption that the Act was applicable could not be said to be unnecessary or unwarranted and not consequential to the declaration but with a view to disguise the real nature of the suit. The learned trial Judge with respect to him was obviously in error in proceeding on a mere assumption that after the finding that the Act was not applicable the Government would automatically cease to take action on the basis of the said Act. Whatever the Government may do after the decision would not alter the nature of the plaintiffs suit which was clearly for a declaration and consequential injunction and was clearly covered under Section 7(iv)(d) of the Court Fees Act 1870 (Act VII of 1870) as it was in force on the date of the suit i.e. 4-6-56. In such a suit the plaintiff was entitled to put his own valuation for the purposes of the court fees and under Section 8 of the Suit Valuation Act (Act VII of 1877) the same would be the valuation for the purposes of jurisdiction. The valuation of the suit as given by the plaintiff for the purposes of jurisdiction was therefore correct and no amendment was necessary in the suit. We therefore hold that the appeal was properly valued at Rs. 10 0 for the purposes of jurisdiction and the plaintiff was not bound to value it at the market value of the suit land. As regards the pleaders fees as per the decision of the Bombay High Court in Rama Kalinga Mabar v. Balapa Kalinga Mabar 44 Bom. L.R. 459 by the Special Division Bench consisting of Beaumont C.J. Wassodew and Sen J J. the Advocates fees under Appendix E of the Bombay High Court Rules Appellate Side 1936 should be computed even in an injunction suit on the value of the subject matter in dispute where that value can be ascertained by the Taxing Officer from materials on the record subject to the qualification that the value of the subject matter should never be regarded as greater than the amount necessary for ascertaining the pecuniary jurisdiction of the Court. The Government strongly urged that the valuation of the suit land as per Purshis Ex. 62 dated 26-3-58 was Rs. 14 20 220 Rs. 160 per Acre and the plaintiff having amended the plaint accordingly the Advocates fees must also be computed on that basis. Now the valuation that has been put in the plaint is as per the amendment directed by the Court. The Purshis makes it clear that it is the market value of the suit lands itself while the subject matter in dispute was the difference between the absolute right of property and the right of occupancy conferred under Section 5(1)(b) of the Act in the suit lands.
There is no material on record to ascertain the value of this difference for compating the Advocates fees. In the absence of any materials on record the learned Government Pleader argued that he should be allowed a fixed sum for costs in view of the labour involved in the case. This appeal was heard for five days before us and in view of the special labour involved we fix a lump sum of Rs. 3750/- by way of costs in this appeal to be paid by the appellant to the respondent-State Government.
In the result the appeal is dismissed with costs.