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Dolatsinghji Jaswantsinghji Vs. Khachar Mansur Bukhad and Others - Court Judgment

LegalCrystal Citation
CourtPrivy Council
Decided On
Case NumberPrivy Council Appeal No. 60 of 1935 (From Bombay)
Judge
AppellantDolatsinghji Jaswantsinghji
RespondentKhachar Mansur Bukhad and Others
Advocates:L. DeGruyther and J.M. Parikh, for Appellant; M.H. Rashid and S.P. Khambatta, for Respondents. Solicitors for Appellant, T.L. Wilson and Co., Solicitors for Respondents, Nehra and Co.
Cases Referred

1. Dolatsingji Jaswantsingji v. Oghad Vira Khachar, 1924 Bom 72=82 IC 867=25 Bom LR 726.

Excerpt:
gujarat talukdars act, 1888 - section 31 -.....the government and the thakore, the attempts by the government to impose a separate jama on the mulgametis' lands was rejected by the court, and a number of litigations during this subsequent period down to 25 bom lr 726 (1), between the thakore and mulgametis in particular villages confirm the view that the villages belonged to the thakore. except in the case of the government's abortive attempts to assess them separately, there is no evidence of direct contact between the government and the mulgametis. it should be remembered that, although the thakore is not entitled to be reimbursed by the mulgametis for any share of the fixed jama paid by him to government, the mulgametis' lands are not revenue-free, and the government would have the right of recourse against them, on any default.....
Judgment:

LORD THANKERTON:

The appellant in these eighteen consolidated appeals is the Ruler of Limbdi State in Kathiawar. The respondents are the mulgametis and landholders in 18 villages of the Khadol Barwala Taluka in Dhanduka in British India, each of the appeals relating to one of the villages. The appellant, as plaintiff in the suits, in substance asks for a declaration that he, and not the defendants, is entitled to be registered as talukdar under the Gujrat Talukdars Act (Bom. Act 6 of 1888), as amended by Act 2 of 1905.

On 23rd April l928 the Subordinate Judge at Ahmedabad granted the appellant in each suit the declaration asked for. On appeal the High Court of Judicature at Bombay, by an order in each suit dated 9th October 1931, set aside the decrees of the Subordinate Judge and remanded the suits to allow the appellant an opportunity of joining the Government as a party to the claim as regards an agreement dated 12th August 1922, and his absolute ownership of the villages in question within this months, failing which the suits would be dismissed. The present appeals are taken against these orders, and in course of the hearing before the Board the respondents asked for and obtained special leave to cross-appeal in order to enable the case to be heard and decided on the merits in the event of their Lordships setting aside the orders of the High Court. By S.2(1)(a), Gujrat Talukdars Act of 1888, as amended in 1905, "talukdar" is defined as including "a thakur, mehwassi, kasbati, and naik and a mulgameti who holds land directly from Government." The respondents claim to be mulgametis who hold lands directly from Government under the last part of the definition, which was included for the first time by the amending Act of 1905. The appellant admits that they are mulgematis, but disputes that they hold lands direct from Government.

After the Act of 1905 the mulgametis claimed to be recorded as talukdars in place of the Thakore of Limbdi, and disputes arose, which first came to a head as regards the village Salangpur, which is also one of the villages in Khadol Barwala Taluka and of which the Thakore held a two-thirds share, in a suit instituted by the Thakore in 1914 in the Court of the District Judge of Ahmedabad (No. 3 of 1914), who decided in favour of the defendants, and dismissed the suit on 23rd March 1916. The Thakore appealed and on 11th October 1922 the High Court reversed this decision, and held that the mulgametis did not hold direct from Government and that the Thakore was entitled to be recorded as talukdar as regards his share of the village : 25 Bom LR 726 (1). Meanwhile, a few months prior to the decision of the High Court in 25 Bom LR 726 (1), two material events had occurred. On 7th July 1922 the Talukdari Settlement Officer had issued instructions to the Assistant Survey Settlement Officer to enter the mulgametis as talukdars, except where they had sold the right of ownership to the Thakore before 1st June 1921, and directed that transactions respecting the transfers of rights in chouth were to be regarded as not subject to the Gujarat Talukdars Act. The other event was the making of an agreement between the Thakore and the Government dated 8th and 12th August 1922, which is in the following terms:

With a view to ensure the compilation without dispute of the Settlement Registers in the Limbdi Barwala villages enumerated in para. 8 below of the Dhandhuka Taluka and to obviate all sources of litigation between the parties interested regarding the status of the classes of persons claiming to be 'Mulgametis' the following terms are agreed as between the Thakore Saheb of Limbdi on the one part and Government on the other part :

(1) The Thakore Saheb agrees:

(a) That the kathis or the Girasias holding Jiwai lands shall be entered as 'Mulgametis' in the Settlement Registers with reference to such holdings except in those cases where a final decision to the contrary has been passed by a Court of law and has been in force up to 1st June 1921, in which case the entry shall be made in accordance with that decision;

(b) That the said 'Mulgametis' shall be considered as 'Talukdars' for the purposes of the Gujarat Talukdars Act so far as the Jiwai lands but not the chouth are concerned with effect from 1st June 1921.

(2) Government on their part agree:

(a) That the chouth shall not be regarded by Government as forming any part of a 'Talukdar's estate' for the purposes of Act VI of 1888 and that no action either direct or indirect shall be taken by the Talukdari Settlement Officer or any other officer of Government in connection with the mortgage alienation or other form of transfer of chouth on the ground that it forms part of such 'Talukdar's estate';

(b) That in any subsequent legislation or amendment of the Gujarat Talukdars Act the Chouth will be definitely excluded from the definition of 'Talukdar's estate' and from the operation of any clauses forbidding mortgage, alienation or other form of transfer;

(c) That the 'Mulgametis' shall be regarded as 'Talukdars' so far as their Jiwai lands are concerned with effect from 1st June 1921 and that no action either direct or indirect hereafter be taken by the Talukdari Settlement Officer or any Government Officer either under the Gujarat Talukdars Act or the Land Revenue Code or as a Manager of a Mulgameti estate with a view to declaring invalid mortgages alienations or other forms of transfer of Jiwai lands made previous to the date aforesaid merely on the ground that such transfers are in contravention of S.31 of the Gujarat Talukdars Act, 1888,

(d) That this agreement shall not be held by Government to affect the present legal rights of the parties inter se otherwise than as is provided by this agreement or to derogate from the present legal rights which either the Thakore Saheb or the Mulgameties possess in the said villages;

(e) That the said Jiwailands shall be regarded as included within the villages on account of which fixed (Udhad) Jama and Local Fund are now paid to Government.

(3) The villages to which this agreement applied are as follows:

1. Khurol. 16. Barejra.

2. Khambra. 17. Rojid.

3. Godavata. 18. Rampura.

4. Chacharia. 19. Wajulka.

5. Dhadodar. 20. Soondriana,

6. Burwala. 21. Ulao.

7. Mungulpur. 22. Panvee.

8. Rephra. 23. Kaprialee.

9. Wuhia. 24. Wadhela.

10. Surwal. 25. Wavdee, Nanee.

11. Koondal 26. Bela.

12. Goonda. 27. Pipal.

13. Chunarwa. 28. Akru.

14. Jalila. 29. Ranpuri.

15. Panchtulaore.

The decision of the High Court, which is now under appeal, is based on the existence of this agreement, and it is therefore necessary to define its exact bearing on the present litigation. As both the learned Judges in the High Court stated the respondents-apart from the assertion that the Government were their agents in making the agreement, of which there is no evidence, and which the respondents no longer maintain-do not maintain that any contractual right is conferred on them by the agreement; they claim that the agreement contains an admission by the appellant of their status as talukdars under the Act, which is admissible as evidence, in terms of Ss.17, 18 and 31, Evidence Act. Their Lordships are unable to hold that the Government are either a necessary or a proper party to this question, which is independent of the validity or invalidity of the agreement. There can be no question of estoppel, and the respondents did not so maintain. As between the appellant and the respondents, it will be necessary to consider whether the statement in the agreement amounts to the admission claimed, and, if so, to consider its evidential value along with the other evidence, as S. 31 expressly provides that admissions are not conclusive proof of the matters admitted. The learned Judges, even on their construction of the agreement as containing a clear admission of the respondents' status under the Act, were not entitled to treat it as a bar to the action, but were bound to consider it along with the other evidence on the merits, which they had found it unnecessary to go into.

Their Lordships are therefore of opinion that the orders of the High Court should be set aside, and the respondents having obtained special leave, it remains to deal with the case on the merits. The Subordinate Judge found against the respondents on the evidence, and came to the same conclusion as had the High Court in 25 Bom LR 726 (1), and he decided in favour of the appellant; as stated above the High Court did not deal with the case on the merits.

It will be convenient to deal first with the question of the admission alleged to be contained in the agreement of 1922. In their Lordships' opinion the agreement does not contain any such admission, but the language used rather suggests the contrary. The change of language from Cl.(a), where the Thakore agrees that the kathis or the Girasias holding jiwai lands "shall be entered" as mulgametis in the settlement registers, to Cl. (b), where he agrees that the mulgametis shall be "considered" as talukdars for the purposes of the Act, would more naturally import that, although the mulgametis were not talukdars within the meaning of the Act, and would not be entered as such, yet, in any question between the Thakore and the Government, the Thakore agreed that the mulgametis should be deemed to be talukdars, as, e.g., alienations by a mulgameti to the Thakore were to be deemed to require the sanction of Government. Other parts of the agreement appear to confirm this view, but, in any event, it is enough to say that the admission sought to be taken must be clear and that there is no such clear admission in the agreement, which accordingly affords no evidence on the merits. Both parties accept the definition of a mulgameti given by A.B. Marten, J. in 25 Bom LR 726 (1), viz.,

One who is descended from a former ruler and owner of the village and still retains by regrant or otherwise some portion of the lands or interests therein of such former ruler and owner, but not necessarily any of his governing rights.

The respondents maintained further that it follows, as a matter of necessary implication, that a mulgameti holds direct from the Government. The Subordinate Judge has reviewed the evidence in the present case in detail and the respondents were unable to suggest any serious criticism of his summary of the facts. Their Lordships therefore find it unnecessary to recapitulate the evidence in detail. It appears to be certain that at some time prior to 1802-probably about 1777 or 1781-the mulgametis had surrendered the lordship of the villages to the Thakore in perpetuity in exchange for his protection, and at the same time retained or were re-granted the jiwai lands and the chouth, the Thakore paying all tribute or jama in respect of the whole lands in the villages, and recovering none of it from the mulgametis. The chouth is a share, usually one-fourth, of the income of the lands in the village other than the jiwai lands, payable by the Thakore to the mulgametis. There is no evidence of lease in writing, as stated in the written statement. When the British became the paramount power in this part of the country in 1802, they found the Thakore of Limbdi in possession of the villages of Dhanduka Taluka, and they recognized his possession, and entered into a settlement with him alone so far as payment of revenue or jama was concerned. This settlement was made by Colonel Walker on behalf of the Government with the Thakore in 1807, and was for payment in perpetuity of a fixed lump sum as jama or revenue in respect of the Dhanduka Taluka. The natural inference from this very material fact is that the Thakore alone held direct from the Government, and that the mulgametis did not so hold. There is no evidence of earlier date to support a contrary view, and the subsequent evidence bearing on the matter, which is reviewed by the Subordinate Judge, confirms the inference from the Settlement of 1807.

Any question as to alteration of the fixed jama was settled between the Government and the Thakore, the attempts by the Government to impose a separate jama on the mulgametis' lands was rejected by the Court, and a number of litigations during this subsequent period down to 25 Bom LR 726 (1), between the Thakore and mulgametis in particular villages confirm the view that the villages belonged to the Thakore. Except in the case of the Government's abortive attempts to assess them separately, there is no evidence of direct contact between the Government and the mulgametis. It should be remembered that, although the Thakore is not entitled to be reimbursed by the mulgametis for any share of the fixed jama paid by him to Government, the mulgametis' lands are not revenue-free, and the Government would have the right of recourse against them, on any default by the Thakore. It must also be noted that under S.24 (1) the registered talukdar is primarily responsible to the Government for the jama of his village, and, if there are sharers, all the co-sharers shall be jointly and severally responsible therefor. The case of the respondents is that they have no liability to Government. Their Lordships agree with the conclusion of the Subordinate Judge on the evidence that the appellant alone is the person who could be held to be the proprietor of the villages as talukdar, and that the respondents do not hold their lands directly from Government. Their Lordships are therefore of opinion that the cross-appeal on the merits must fail, and that the decision of the Subordinate Judge ought to be restored. Accordingly, their Lordships will humbly advise His Majesty that the appeal should be allowed, and that the orders of the High Court should be set aside and the decrees of the Subordinate Judge should be restored, the cross-appeal being dismissed. The appellant, the Thakore Saheb, to have the costs of the appeal and cross appeal and his costs in the High Court.

Appeal allowed.


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