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Viziaramarazu Virabahu Narendra Rau Bahadur Vs. the Right Hon'ble the Secy. of State for India in Council (31.03.1882 - MADHC) - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1882)ILR5Mad91
AppellantViziaramarazu Virabahu Narendra Rau Bahadur
RespondentThe Right Hon'ble the Secy. of State for India in Council
regulation v of 1804 - limitation act--trustee--constructive trust--court of wards taking possession of estate tinder order of government, effect of. - section 16 (1) (c) :[tarun chatterjee & aftab alam,jj] ready and willing to perform-concurrent findings of fact on consideration of evidence on record that appellants-buyers were not ready and willing to perform terms and conditions of agreement for sale - buyers failing to pay balance consideration before agitating matter before supreme court held, concurrent finding cannot be interfered with. section 20: [tarun chatterjee & aftab alam,jj] whether time is the essence of contract held, many instance in contract which repeatedly showed that time was to be of essence of contract were specifically mentioned. clear condition in reporting his proceedings to the government mr. russel observed that by the conviction of the zamindar the zamindari had been forfeited to the government (regulation vii of 1808, section 3) and had since been treated as the property of government, and suggested that the forfeiture should be proclaimed; while regretting that the paramount object of restoring the authority of government had compelled him to take measures, which deprived an ancient family of its hereditary possessions, he stated that if he yielded to his feelings he should be disposed to recommend the restoration of the zamindari to the plaintiff, the next brother of the zamindar, who was too young to be implicated in the crimes and intrigues which had led to its forfeiture, but that he was convinced that such.....

Charles A. Turner, Kt., C.J.

1. The plaintiff, Viziaramarazu Virabahu Narendra Rau, son of Venkatapathi Razu, Zamindar of Palkonda, has instituted this suit to obtain an account of the rents and profits of the Zamindari from 29th September 1828, the date of his father's death, and for payment, with interest, of the balance which may be found due.

2. To explain the grounds on which the claim is advanced and resisted and the action of Government which has given rise to it, it will be convenient to refer briefly to the history of the Zamindari.

3. The plaintiff states that the Zamindari had its origin about three centuries ago in a grant made to his ancestor Sri Dhunnayanna Garu by a Maharaja of Jaipur.

4. While the Northern Sirkars were held by the French, the Raja of Vizianagram established a feudal superiority over several neighbouring Zamin-daris, including that of Palkonda. The dependence of the estate on Vizianagram continued until 1793, when Viziaramarazu, the then Zamindar, took arms against the British Government. He continued in rebellion until 1796, when, in consequence of the successes of the troops sent against him, he surrendered himself, was declared forever incapable of holding the Zamindari, and was confined in the fort of Vizagapatam.

5. The report of Mr. Russel, who was deputed as a Commissioner to inquire into the disturbances in the Zamindari, is the source of our information! respecting the transactions which followed the deposition of Viziaramarazu. For a short time the Zamindari was administered by the Government, but it was subsequently made over to Sitaramarazu, the eldest son of Viziaramarazu.

6. In 1798 Sitaramarazu died, and his brother Venkatapathirazu, the plaintiff's father, was recognised as his successor in the Zamindari; but, in consequence of his minority, the estate was committed to the management of Purusram Patrudu as Dewan.

7. On the introduction of the permanent settlement, the Zamindari was confirmed to Venkatapathirazu in perpetuity on a peishcush of Rs. 51,000, to be increased in five years to Rs. 55,000. In 1803 Viziaramarazu was released from confinement on his undertaking not to quit the town of Vizagapatam without the Collector's consent; but, in May 1811, he appeared with an armed force at Vizagapatam, collected the revenues and committed depredations on the people. Martial law was proclaimed and troops sent against him. He escaped to Nagpur, but afterwards gave himself up and was taken to Vizagapatam where he died.

8. Venkatapathirazu failing in the punctual payment of peishcush, the Zamindari was frequently sequestered, but released on the security of Jagannada Patrudu, the Dewan.

9. In 1827-28 the Zamindar sent Rs. 20,000 through the Dewan to be paid into the treasury to prevent a sequestration; the money arrived too late, and was insufficient to discharge the arrear, and the Collector ordered the officers-deputed to make the sequestration to proceed with it.

10. On the 16th February 1828, a body of armed men under the command of Venkatarayudu, a Mokassadar of the Zamindari, entered the palace and murdered the Dewan and his brother and left the fort without molestation. The Zamindar having 300 men in the fort at the time of the murder, the escape of the murderers created suspicion of his complicity in the crime. On the 29th September 1828 Venkatapathirazu died, leaving three sons Kurmarazu, Narendra Rau, the plaintiff, and Niladri Narendra Rau and eight ladies who were styled his widows, though with some of them he had not gone through a ceremony of marriage.

11. On the 6th October 1828 the Collector reporting to the Government the death of the Zamindar, stated that Kurmarazu, aged 14 years, was illegitimate, that the plaintiff, aged nine years, was the son of the second wife, Chinna Juggaya, and that the third son was also illegitimate, that a dispute existed as to the right of succession, that Kamalaya, the senior wife, and the other ladies, with the exception of the second wife, supported the claim of Kurmarazu, who, it was said, had been 'adopted' by Kamalaya, and maintained that, according to the usage of the family, illegitimacy did not derogate from the right of primogeniture, while Chinna Juggaya, the second wife, asserted the claim of her son, the plaintiff, on the ground of legitimacy. The Collector mentioned that there were bands of Doratanams in the hills attached to the interest of both parties, but that he hoped to bring the ladies to an agreement and prevent a collision between their armed partisans. He added that the late Zamindar had incurrred heavy debts and that the revenue was in arrear.

12. On the 9th May 1829 the Collector reported that, although there had been a strong disposition to oppose the succession of the eldest son, the ladies had arranged their differences and all parties freely acknowledged Kurmarazu as the lawful Zamindar, and were willing to regard Kamalaya as the head of the family during his minority.

13. In consequence of the Collector's representation, Kurmarazu was recognised by the Government as Zamindar, and by reason of his minority the Court of Wards took charge of the estate of which the management was committed to Kamalaya.

14. In order to obtain security Kamalarya entered into an arrangement with Kurmanada Patrudu, the head of the family of the murdered Dewan. Fresh disturbances arose and villages were plundered and burnt. The Collector proceeded to Palkonda, and ascertained that Kurmarazu had separated himself from Kamalaya and attached himself to Pedda Juggaya, another of the widows of the late Zamindar, and that the partizans of the lady had fomented disturbances in order to embarrass the management. In February 1831 a reconciliation was effected between the minor Zamindar and Kamalaya, and for a season peace was restored; but in April 1831 villages were plundered and burnt within a few miles of the fort owing, it was reported, to the unpopularity with which Kurmanada Patrudu was regarded by some of the hill chiefs. The Zamindar attained his majority in 1831 or early in 1832. The arrears of revenue then amounted to Rs. 93,485, but of these arrears Rs. 35,081 which had accumulated during the management of the Court of Wards were remitted. In March 1831 the Zamindar petitioned that the estate might be made over to him; he offered to make an immediate payment of Rs. 16,000 and to discharge the rest of the arrears by yearly instalments and to assign the rents of certain villages as security. The offer was accepted by the Board of Revenue, and the Collector was authorised to make over the estate to the Zamindar. It is not quite clear what followed; it is said the estate was delivered to the Zamindar in April 1832. In July 1832 the Zamindar informed the Collector that he had entrusted the management to Pedda Juggaya; but it appears that the Collector finding the amount the Zamindar had undertaken to pay had not been made good, and that serious disturbances had broken out owing to the discontinuance of certain allowances to members of the family and to peons, thought it necessary to retain the management in the hands of his officers. Whether this step was taken by the Collector as Agent for the Court of Wards or in the exercise of the powers of sequestration is not to be collected from the report.

15. The condition of the estate in the years 1831 and 1832 was such that, in almost every month, villages were destroyed, and in June 1832 no less than 29 villages were plundered and burnt by Atsapulvalsa Krishnama Dora, a Mokassadar of the Zamindari.

16. The insurrectionary outbreaks in this and the neighbouring Zamindari of Parla Kimedi compelled the Government to place in the field a military force and to depute Mr. Russel with special powers to inquire into the cause of the disturbances and take measures for their repression. Atsapulvalsa Krishnama Dora was declared a rebel and military law proclaimed.

17. Mr. Russel on his way to Palkonda fell ill at Chicacole, and while he was detained there, another Mokassadar of the Zamindari, Padmanaba Dora of Woney, a village distant three miles from Palkonda, made an attack on the Kacheri of the Amin at Palkonda on the 16th January 1832 to effect the release of a peon of Krishnama Dora. The attack was repulsed, and Padmanaba Dora ,and others of the assailants captured. Krishnama - Dora immediately assembled a number of the Mokassadars at Woney and sent messages to the authorities demanding that the prisoners should be surrendered to him. A military force was sent against him under Lieutenant Curre; he retired to his fort at Atsapulvalsa, but was pursued and evacuated it. When possession of the fort was taken, a bundle of letters was discovered which gravely compromised the Zamindar and other members of his family. Further inquiries resulted in their arrest and trial. The Zamindar was convicted, under Regulation VII of 1808, of rebellion and sentenced to death; but in consequence of his youth the sentence was commuted to imprisonment for life. He was confined in the fort of Gooty and died there in 1834. ,

18. In reporting his proceedings to the Government Mr. Russel observed that by the conviction of the Zamindar the Zamindari had been forfeited to the Government (Regulation VII of 1808, Section 3) and had since been treated as the property of Government, and suggested that the forfeiture should be proclaimed; while regretting that the paramount object of restoring the authority of Government had compelled him to take measures, which deprived an ancient family of its hereditary possessions, he stated that if he yielded to his feelings he should be disposed to recommend the restoration of the Zamindari to the plaintiff, the next brother of the Zamindar, who was too young to be implicated in the crimes and intrigues which had led to its forfeiture, but that he was convinced that such indulgence would fail of the desired effect, and that to make the desired impression on the turbulent Zamindars of the province it was necessary to declare the forfeiture absolute. He at the same time pointed out that it would be competent to the Government at a future period to extend such an act of grace to the family, and he suggested that when all classes had been brought into habits of order and obedience to the law, it might be expedient to restore the Zamindari to either of the surviving brothers whose conduct might be most deserving and might give the best promise of good management. In June 1835 the report of Mr. Russel came before the Governor Sir Frederick Adam, who was then on tour in the Northern Sirkars. His Excellency recorded his entire concurrence in Mr. Russel's conclusion that the forfeiture should be declared absolute and unconditional; hut, with respect to the suggestion for its restoration at a future period, he quoted the opinion of Sir Thomas Munro that no Zamindari. once forfeited for rebellion should ever be restored.

19. Sir Thomas Munro, in 1823, on the occasion of a similar tour in the Northern Sirkars, adverting to the weakness of the authority of Government in the Sirkars, wrote as follows:

The great body of the people cannot be protected against oppression nor the country be secured from disturbance and the incursion of plunderers until our Government becomes more respected than it is at present. No Zamindari once forfeited for rebellion should ever be restored, whatever temporary evil the retention of it might occasion.' Minutes of Sir Thomas Munro, Arbuthnot, Vol. I, pp. 210, 211.

20. An order in Council made on 1st September 1835 directed the issue of a proclamation declaring that the Zamindari had been forfeited absolutely and unconditionally, and requiring the under-tenants and raiyats to pay their rents to the Collector. From the date of the confiscation the estate has been held , by the Government as part of the public domain, and the profits, whether collected directly or through lessees, have been treated as public revenue.

21. In 1829 the Collector had reported that, of all the people under his control, none were more turbulent than the Doratanams of Palkonda, or more devoted in their attachment to the family of their hereditary chieftain, whose authority alone he believed them ready to acknowledge. Consequently, after the trial of Kurmaruzu it was deemed necessary, for the peace of the country, to remove to a distance all the members of the Raja's family who had not been, put on their trial. In exercise,, it is said, of the powers conferred on the Government by Regulation II of 1819, they were ordered to reside in the fort of Vellore and allowances were made for their maintenance. It is stated in the plaint that these allowances were paid out of the revenues of Palkonda, but it was not contended at the hearing that they were paid in recognition of any continuing interest in the estate.

22. The action of the Government was, it will be seen, evoked by the disorders which, from the commencement of British rule, had disturbed the peace of the district and rendered it imperative [103] on the executive, in the interests of the inhabitants, to have recourse to extreme measures for their repression. Whether or not the conviction of the recognised Zamindar authorised the confiscation of the rights of the other members of the family may be doubted. Assuming that the right of Kurmarazu to the succession had been established, if the Zamindari was the impartible inheritance of the family and by reason of its character of impartibility could be directly enjoyed by one member only at a time, the whole interest in the estate would not have been vested in Kurmarazu; he would have had, indeed, a right to present enjoyment, and on his death, if he had left male issue, his eldest son would, in virtue of the law of primogeniture, have succeeded to the dignity and to possession of the estate : but in virtue of their coparcenary the other male members of the family enjoyed respectively a present right of maintenance and a reversionary right to possession in succession on the cessation of the interest of the immediate predecessor without leaving issue capable of inheriting; and had proceedings been taken in time it would have been open to question whether and to what extent the confiscation of the interests of Kurmarazu operated to deprive his brothers of their rights. Unfortunately for the plaintiff he allowed the time to go by within which he would have been entitled to contest both the right of Kurmarazu to the succession and the effect of the confiscation. The orders of the Government which detained him at Vellore did not deprive him of the power of instituting proceedings to assert his claims, and the Government, if it acquired no indisputable title by the confiscation of the Zamindari, has long since acquired a title by prescription, unless it can be established that the Government was in fact a trustee for the plaintiff', or that obligations analogous to those of a trustee were contracted by it in favour of the plaintiff.

23. It being apparent that the plaintiff could succeed in a Court only on proof of the existence of a fiduciary relation in the Government towards him, the claim made in this suit is based on the averment of such a relation; and in order to avoid expense the case was at once brought before the Court that it might be determined whether on the undisputed facts, the Government was, at any time, either actually or constructively, a trustee for the plaintiff; The learned Counsel argued that the Government, by allowing the Court of Wards to take charge of the estate on the death of the plaintiff's father, had constituted itself a trustee for all the members of the family, and secondly that, as a wrong-doer, the Government was, what is termed, a constructive trustee.

24. It is stated in Mr. Russel's report, paragraph 16, which, so far as it goes, has been accepted as an accurate record by both parties, that 'as he (Kurmarazu) was then a minor, the Zamindari was placed under the charge of the Court of Wards.' The proceedings of the Board have not been produced, but two letters from the Collector to the Board have been put in evidence. The first, dated 6th October 1828, announces the death of the Zamindar Venkatapathirazu, mentions the existence of a dispute as to the succession on which there was no necessity for an immediate decision, and suggests that charge must be taken of the estate during a minority of at least four years. To this communication it appears from the second letter an answer was sent on the 30th October 1828, and the second letter, acknowledging this answer, is addressed to the President and Members of the Court of Wards. It would seem that authority had been conveyed to the Collector to hold the estate as the Agent of the Court of Wards. In this second letter he makes frequent allusion to the Regulation V of 1804, which established that Court, and professed to have been acting under its provisions. He mentions that, under Section 19 of the Regulation, he had nominated the mothers to be guardians of their respective offspring, and the learned Counsel for the plaintiff relies on that passage to show that the Court of Wards had proposed to assume charge not on behalf of the eldest son only, but on behalf of the other sons also. In the same letter there was submitted a list of allowances for the minors and their family under Section 14, but no conclusive argument could be founded on this circumstance as the section directs that allowances should be made to disqualified proprietors and their families, and if Kurmarazu were recognised as the successor to the Zamindari, his younger brothers would have been entitled to maintenance. In a later passage the Collector alludes to Kurmarazu as the minor Zamindar and to a proposal made by Kamalaya to. rent the estate for four years, being the remaining period of the young Zamindar's minority. In a still later passage he announces that the dispute as to the succession had been arranged and that all [105] parties freely acknowledged Kurmarazu to be the lawful Zamindar. It appears, then, that the Court of Wards at first authorised the Collector as their agent to take charge of the estate when the dispute as to the succession was unsettled. But it also appears that Kurmarazu was afterwards recognized as Zamindar, and that it was contemplated to restore the Zamindari to him, if this intention was not in fact carried out and the estate placed in his possession before his conviction.,

25. However this may be, we are not prepared to hold that the possession of the Court of Wards constituted the Government a trustee;

26. The Court of Wards exercises in certain cases the office of an Official Trustee, and although, with a view probably to secure its intervention only in proper cases, the Regulation requires that a full statement of these circumstances should be forwarded to the Government and its sanction obtained before the Board of Revenue is authorised to exercise its powers as a Court of Wards, the Government, by according such sanction, is no more constituted a trustee than this Court is constituted a trustee when, under Section 10, Act XVII of 1864, it appoints the Official Trustee to be a trustee.

27. The possession of the Court of Wards ceased, if it had not ceased before, when, in virtue of the confiscation, the Government entered into possession of the Zamindari as part of the public domain. Assuming that in so doing its action was not justified and that either then or on the death of Kurmarazu the plaintiff was entitled to possession, did this unlawful assumption or continuance in possession impose on Government the obligation of a trustee for the plaintiff? The learned' Counsel for the plaintiff argues that it had this effect, but he cites no authority in support of his contention. It is not every unlawful entry on, or continuance in, possession that creates a constructive trust. It is difficult to bring within the compass of a definition the principles by which the Courts have been guided in forcing fiduciary obligations on the consciences of wrong-doers by operation of law; but it may be asserted that the wrongful invasion or continuance in possession of a stranger, whether with or without knowledge of the infirmity of his title, will not make the wrong-doer a constructive trustee unless he has been admitted into possession by a, trustee so as to be affected with notice of the trust.

28. The Advocate-General stated at the hearing that he had no desire to contend that the confiscation of the Zamindari was an act of State. It is apparent that possession was taken in the belief that the act was authorised by municipal law. If this opinion was erroneous and the Government entered on the Zamindari or remained in possession of it unlawfully, it was in the same position, no better and no worse, than any private trespasser liable to eviction if the rightful owner pursued his remedies within the time allowed by law, but capable of acquiring an immunity from ouster and under the Limitation Act a prescriptive title by efflux of time.

29. There being nothing to show that the Government intended to constitute itself a trustee for the plaintiff or acquired or held possession under such circumstances that it was affected with the obligation of a constructive trustee, the claim made in this suit fails and the suit must be dismissed, but, as the Advocate-General does not press for costs, without costs.

Innes, J.

30. I concur.

Muttusami Ayyar, J.

31. I also concur.

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