Patta and Kabuliyat

We received a number of civil suits for declaration of title where the disputed title was
shown to be based originally on ‘Patta’ and/or ‘Kabuliyat’. Patta is a written document
signed by the Grantor (King, Authorized Signatory of Government, Zaminder) showing
lease of a certain immoveable property with certain terms in favor of the grantee (Raiyat)
and Kabuliyat refers to the document signed by the latter showing acceptance of the said
lease.

To provide our clients with proper reliefs in those suits, we conducted research on Patta
and Kabuliyat and found the above referred judgments where the Privy Council upon
analysis of terms of Patta and/or Kabuliyat and attending facts and circumstances,
disposed of the appeals pending before it.
MANU/PR/0101/1934
BEFORE PRIVY COUNCIL
Patna A. 6 of 1931 and P.C.A. 2 of 1933
Decided On: 03.07.1934
Appellants: Kamakhya Narain Singh
Vs.
Respondent: Abhiman Singh and Ors.
Hon'ble Judges/Coram:
Lord Tomlin, Lord Russell of Killowen, Lord Macmillan, Sir Lancelot Sanderson and Sir
Shadi Lal
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Dunne, K.C. and W. Wattach for Appellant
Case Note:
A. - Grant--Construction--Kabulyat showing grant for service--discontinues
of service--Grant can be resumed.
Where the terms of a kabuliyat, inter alia, are 'if the rent falls into arrear or
be removed from service, then I shall give up possession of the land", the
terms show that although rent is to be paid, the performance of the service
is to be continued as a condition of the grant. The phrase 'removed from
service" is ambiguous but it must at all events mean that the parties
contemplated that the performance of the service might cease either at the
instance of the grantor or otherwise, in which case possession of the village
is to be given up to the grantor. Accordingly, if the said service is
discontinued the grantor becomes entitled to obtain possession of the
village (Clause 233, 35, 36)
B. - Record of Rights--Entry in survey record--Presumption correctness --
Rebuttal--Onus is on person challenging the entry.
An entry in the survey record raises the presumption that the particulars
therein recorded are right. But such presumption may be rebutted and onus
rests on the person challenging the entry (Clause 233)
JUDGMENT
Sir Lancelot Sanderson
1. This is an appeal by the Plaintiff in the suit, a minor appearing through the Court
of Wards, from a decree of the High Court of judicature at Patna dated the 19th of
November, 1930, which reversal a decree of the Additional Subordinate Judge of
Hazaribagh dated the 23rd of June, 1928, and dismissed the Plaintiff's suit.
2 . The suit was for a declaration that a village called Ghutibar became liable to
resumption on the cessation of certain services, viz., the cessation of reciting one
chapter of the holy book of Srimadbhagwat before the God Saligram from the month
of April, 1920 A.D., and that thereafter the Defendants had no right to remain in

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possession of the said village in view of the rights of the Plaintiff; for a decree for
khas possession of the said village; for mesne profits and for any other relief to
which the Plaintiff might be found entitled. Defendants 1 to 8 filed a written
statement denying the discontinuance of the worship, and alleging that they were not
in possession of the village and stating that they had no objection to the Plaintiff
taking possession of the village.
3 . Defendants 9, 12 and 13 filed a joint written statement, in which it was alleged
amongst other matters that the grant, to which reference will presently be made, was
burdened with the service of reciting Bhagwat, but that the said reciting was not a
condition of the grant and that subsequently rents were imposed in lieu of the
recitation of Bhagwat. It was further alleged that the said reciting had not been
discontinued. Defendants 10 and 11 filed a separate written statement which alleged
that the reciting of the Gita (presumably meaning the Bhagwat) was not a condition
of the said grant, that the descendants of the grantees were still daily reciting the
Gita, and that the survey record showed that the tenure was not resumable.
Defendants 9, 12 and 13 contested the suit, the guardian ad litem of Defendants 10,
11 and 14 watched the trial; the Defendant No. 15 did not appear. The Subordinate
Judge made a decree in favor of the Plaintiff for recovery of possession of the said
village and made a declaration that the Plaintiff was entitled to recover mesne profits
from the Defendants 9 to 15 for the period mentioned in the decree with directions as
to the ascertainment of the said mesne profits. He ordered that the Plaintiff's costs
should be paid by all the Defendants. The Defendants 9 to 13 appealed to the High
Court, which allowed the appeal and dismissed the suit. From this decree of the High
Court the Plaintiff has appealed to His Majesty in Council. None of the Defendants
appeared at the hearing of the appeal.
4. The material facts are as follow:
On the 16th of November, 1852, the Maharaja Sambhu Nath Singh granted a
sanad in respect of the village Ghuthiwari (called Ghutibar in the plaint) to
Guru Sri Raghavendra. The Plaintiff is the successor of the above-mentioned
Maharaja and the Defendants 1 to 8 are the successors of the above-
mentioned Guru Raghavendra. The other Defendants were joined on the
allegation that they were transferees from the Defendants 1 to 8 or their
predecessors. The terms of the sanad are as follows:
Sri Bhagwat-Sri Saligram.
Dated the 5th Katik Sudi Sambat, 1909.
Kaulkarar patta granted by the most powerful and high in dignity
Maharaja Sri Sri Sambhu Nath Singh Bahadur (to the effect
following):
Whereas one village Ghuthiwari in paragana Rampur, has
been granted by me as baiswan (jagir) to Guru Sri
Raghavendra for reciting daily one chapter of (Sri Bhagwat)
before (Sri Saligram). He and his sons and grandsons shall
make recitation (of the same) and enjoy (the proceeds of)
the village. The village includes jup, kup (wells), boundary
limits, trees and fisheries, etc. Therefore it has been
(granted) before me the hazur and Bakhshi Jainandan Das,
Bakhshi Gopal Das, Bakhshi Bhawani Ram Mahta (torn) Das

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 and Bakhshi Bhagwan Das.
(Sd.) Bakhshi Jaikishun Das at the Ichak Kachahri.
5 . On the 3rd June, 1856, Raghavendra executed a kabuliyat in favour of the
Maharaja Sambhu Nath Singh in respect of the said village. The terms of the
kabuliyat are as follows:
Maharaja Sri Sri Shambhu Nath Singh Bahadur.
I am Raghavendra Guru, resident of Gurubara, pargana Chai, Ilaka
Hazaribagh.
I have been granted by the hazui (Maharaja Sri Sri Shambhu Nath Singh
Bahadur) mauza Ghuthiwari, one village in pargana Rampur, as baiswan in
lieu of services, and I have to pay for the same Rs. 12-15-0 in Company's
coin in cash I do hereby declare, and give out in writing that I shall without
objection pay off the same according to the installments year after year at
the kachahri of (Maharaja Sri Sri Shambhu Nath Singh Bahadur).
Details of installments.
Asin, Kartik, Aghan, Pus, Magh, Phagun, Chait, Baisakh.
I shall pay off the money according to the above installments. In case of
default (in payment) of the installments, I shall pay the money with interest
thereon. If the rent falls into arrear or I be removed from service, then I shall
give up possession of the land (village). I have therefore of my own accord
executed this kabuliyat at the cachahri of so that it may be of use when
required. Dated the 1st Jeth Sudi Sambat, 1913.
(Sd.) Chaudhari Jagu Ram at the Ichak iachahri.
Executed this kabuliyat which is correct.
(Sd.) Raghavendra Guru.
6 . In the survey khewat, which was stated to have been made in A.D. 1912, the
village is entered as not resumable: the yearly rent is entered as Rs. 12-15-0 and the
following appears in the remarks column:
By virtue of unregistered (sada) sanad dated 5th Kartik Sidi, 1909, Sambat
granted by Raja Sambhunath Singh as to Ragho Ind. Guru.
7 . By reason of his entry in the survey record the presumption arises that the
particulars therein recorded were right and that the jagir granted by the sanad to
Raghavendra was not resumable. But such presumption may be rebutted, and the first
question is whether the Plaintiff, on whom the onus rests, has succeeded in rebutting
the above-mentioned presumption.
8 . Before considering this question there is another document, to which reference
should be made. It appears that on the 11th March, 1889, Govindra Indar Guru and
Lakhav Indar Guru, sons of Raghavendra Guru executed a mukarrari lease in respect
of "the said village in favour of Gannu Singh and another, who were the ancestors of
the Defendants Nos. 9 to 15, at a fixed annual rental of Rs. 145. Reference therein

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was mace to the fact that Rs. 12-12-0 was payable by the lessors to the Ramgarh
estate. This sum was obviously a mistake for Rs. 12-15-0.
9. It was alleged that some of the lessee Defendants purchased the reversion in A.D.
1912.
10. There was an issue at the trial as to whether the above mentioned service had
been discontinued and when. Upon this issue the Subordinate Judge accepted the
evidence given on behalf of the Plaintiff and held that service, on which the jagir in
suit was held, had been discontinued since May, 1919, and that finding of fact must
be assumed as correct for the purpose of this appeal.
1 1 . Both the Courts in India accept the above mentioned sanad and kabuliyat as
genuine documents and as admissible in evidence, and the question whether the
Plaintiff has succeeded in rebutting the presumption created by the entry in the
survey khewat, and proving that the jagir granted by the sanad was resumable really
depends upon the true construction of these two documents, for there was no verbal
evidence of any materiality on this question. For the present purpose the two
documents must be read together. Although the sanad was granted in 1852, and the
kabuliyat was executed in 1856, it is clear that both of them relate to the conditions
on which the village was held by Raghavendra. In the sanad there as no reference to
any rent, and the grant was made to the grantee for, the purpose of ensuring that the
grantee, his sons and grandsons should make the recitation therein prescribed daily.
The question is whether this was a grant burdened with the above-mentioned service
or whether the grant was conditional upon the service being performed.
12. It is recited in the, kabuliyat that the jagir in the village had been granted by the
Maharaja in lieu of services and that the grantee had to pay the rent therein
mentioned according to the installments. The terms of the kabuliyat point to the
inference that the rental had been imposed after the grant of the sanad had been
made. It was therein provided that if the rent Jell into arrear or the grantee be
removed from service he would give up possession of the village. This provision
shows conclusively that in some material particulars the entry in the survey khewat is
not correct, for although the entry refers to the sum of Rs. 12-15-0 as the yearly rent,
there is no reference to the provision that the grantee was bound to give up
possession of the village in the event of the rent falling into arrear. It follows
therefore that the statement in the entry in the survey khewat that the village was not
resumable was incorrect. Further, although the entry in the survey khewat mentions
the sanad of the 10th November, 1852, there is no reference to the services to be
rendered by the grantee and there is no reference to the terms of the kabulyai at all.
Their Lordships therefore are of opinion that the presumption arising from the entry
in the survey khewat that the jagir in the village was not presumable has been
rebutted.
1 3 . It remains to be considered what is the true construction of the two above
mentioned documents. The expression in the kabuliyat "or I be removed from
service" must refer to the service specified in the sanad, namely, the reciting of the
chapter from Bhagwat daily. The terms of the kabuliyat show that the parties thereto
intended that, although a rent was to be paid, the performance of the above-
mentioned service was to be continued as a condition of the grant. But it was also
provided that the grantee might be "removed from service." This is an ambiguous
phrase but it must at all events mean that the parties contemplated that the
performance of the service might cease either at the instance of the grantor or

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otherwise, in which case possession of the village was to be given up to the grantor.
1 4 . Their Lordships are of opinion that the true construction of the two above-
mentioned documents is that the performance of the said, service was a condition of
the grant, and that inasmuch as the said "service was discontinued in May, 1919, the
Plaintiff became entitled upon such discontinuance to obtain possession of the said
village.
15. The Defendants, who contested the suit and based their claim upon the mukarrari
lease of the 11th March, 1889, and their alleged subsequent purchase of the
reversion, can be in no better position than their lessors, and the Plaintiff is entitled
to a decree against them.
16. For these reasons the appeal must be allowed, the decree of the High Court set
aside, and the decree of the Subordinate Judge restored. The Defendants Nos. 9, 10,
11, 12, and 13, who were the Appellants in the High Court, must pay the Plaintiff's
costs in the High Court and of this appeal. Their Lordships will humbly advise His
Majesty accordingly.

© Manupatra Information Solutions Pvt. Ltd.

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MANU/PR/0106/1915
Equivalent Citation: 1915(17)BOMLR730, 1916(23)C LJ1, 30Ind. C as.303

BEFORE THE PRIVY COUNCIL

Decided On: 03.06.1915
Appellants: The Secretary of State
Vs.
Respondent: Bai Rajbai
Hon'ble Judges/Coram:
Atkinson, George Farwell, John Edge and Ameer Ali, JJ.
Case Note:
Cession-Enforceable rights after cession-Burden of proof-Viramgam
Kasbati's Tenure-Patta-Bombay Act VI of 1867-Bombay Act VI of 1888.
After a cession of territory to British rule the only enforceable rights against
the Sovereign are those conferred by him after the cession either by
agreement, express or implied, or by legislation. An implied agree" merit
conferring rights may be established by evidence of recognition of rights
existing before cession and of an election express or implied to be bound by
them. The burden of establishing the existence of an enforceable right is
upon the subject.
Cook v. Sprigg (1899) A.C. 672 and The Secretary of State in Council of
India v. Kamaehee Boye Sahaba (1859) 7 M.I.A. 476, at pp. 540 & 541
followed.
Kasbati of the village of Chharodi in pargana Viramgam, held, upon the
facts, to have no proprietary right in the village and not to be legally
entitled at the end of the term of his patta to have a fresh patta granted to
him. The pattas granted from time to time were in the nature of leases and
were not merely jamabandi pattas.
Bombay Act VI of 1882 does not apply to Kasbatis and a Kasbati's rights
under Bombay Act VI of 1888 are subject to, and limited by, his patta.
JUDGMENT
Atkinson, J.
1 . These are consolidated appeals from preliminary and final decrees of the High
Court of Judicature of Bombay, dated respectively the 16th of April 1909, and nth of
April 1911, modifying a decree of the District Judge of Ahmedabad, dated the 30th of
November 1907, in Suit No. 7 of 1898 in his Court.
2 . The question in issue in the action for an injunction, out of which these appeals
have arisen, is whether the plaintiff, like her male ancestors, is not entitled to the
continued possession, management and enjoyment of a certain village called Charodi
about 2,200 acres in extent, situated in the pargana Viramgam, in the district of
Ahmedabad, in the province of Gujarat. In her plaint she bases her right on her
absolute ownership of this village. In argument before this Board and in the

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judgments of the Courts below her right has been also based apparently upon the
following title, namely, this, that though her ancestors took from time to time several
leases of this village from the Bombay Government, each for a term of years, they
were not, as the appellant contends, mere lessees bound to give up to their lessors at
the end of each term the possession of the demised village; but were legally entitled,
as each lease terminated, to have a new lease granted to the last lessee or his
representative. Either title, if possessed by her, would enable her to succeed in this
action. In order to arrive at a conclusion on the issue thus in dispute between the
parties it is necessary to examine briefly the history of this district of Ahmedabad
before its cession by the Gaikwar, with the concurrence of the Peshwa, to the British
Government in the year 1817, and to examine more in detail the dealings of the
Bombay Government after that date with a certain class of its inhabitants,
Mahomedans in religion, said to have originally come from Delhi under the Great
Mugul, and styled indifferently Casbatees and Kasbatis, and especially their dealings
with the ancestors of the respondent, who belonged to that class, touching this
village of Charodi.
3 . The ancestor of the respondent in possession of this village at the time of this
cession was one Jehangirbhai alias Bapuji. One Fatumyia, his grandson, died in the
year 1891 childless, leaving him surviving his widow, Nandbai, one of the plaintiffs in
the action, who has died during the course of the litigation. One Bapuji, the brother
of Fatumyia, died some years ago, leaving his son, Bapabhai, his only issue him
surviving, and Bapabhai himself died in the year 1893, leaving his daughter, Bai
Rajbai, the other plaintiff, his only child him surviving. This lady, who subsequently
married and was left a widow, has thus become the sole surviving descendant of the
member of the Kasbatis class who was in possession of this village of Charodi at the
date of the aforesaid cession. The term Kasbatis, it is not disputed, was used to
designate dwellers in towns whose lands were cultivated not directly by themselves
but by ryots, to whom they let them, receiving therefore a rent in cash or in kind.
They were, in addition, apparently invested with certain powers of government over
their villages, including the management of village affairs. At the time of the cession
the Kasbatis were possessed of seventeen villages within the pargana of which
Charodi was one. The settlement of the territories ceded was not practically under-
taken till the year 1822-1823.
4. In the interval an accredited public official of the Company was put in charge, duly
authorised to investigate the local conditions, and make suggestions and
recommendations for the carrying through of this work. In the conduct of this
business and in discharge of these duties he made reports to his superiors in which
he sketched the history of the Kasbatis, the Gerasias, and other classes or families
amongst the inhabitants, and purported to describe the rights they had theretofore
respectively acquired as against the ceding Sovereign, the Gaikwar, to the land of
which they were in possession and the villages over which they exercised some
primitive powers of management and control. Some of these reports have been
received in evidence apparently without objection. On two of them, sent by Mr.
Williamson, described as the Assistant Collector in charge, the first bearing date the
3rd of August 1822, to the Secretary of the Government of Bombay, and the second
bearing date the 28th of May 1823, referring to the first, to the Collector of
Ahmedabad, much reliance has, naturally, been placed. In the first he reports,
amongst other things, that there were seventeen villages in the Viramgam Pargana,
held for a considerable number of years by several families of Casbatees or Kasbatis
under a peculiar kind of tenure; that their possession had been frequently
interrupted, and had not therefore been sufficiently continuous to found prescriptive

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rights; that as soldiers of some property, family and character, they had acquired a
partial influence in the affairs of the pargana, and often had obtained from the local
managers leases of villages on favourable terms, in the granting of which nothing
further had been intended than that the villages should remain in their temporary
charge; that after the grant of the farm of Ahmedabad by the Peshwa to the Gaikwar,
the Kasbatis had enjoyed the produce of some of these villages for twenty-five or
thirty years on a revenue which was increased or lowered according to the pleasure
of the local managers; that in 1804 they were dispossessed of these latter by one
Babaji Appaji, a manager of the Peshwa, who demanded a higher jumma than the
Kasbatis would consent to pay, but were restored to possession ten years later; that
thus by a train of circumstances of such an undefined nature that it was difficult to
describe them, the class had acquired a sort of claim to the villages of which they
were found in possession when the country was delivered to the Bombay
Government; that since the authority of that Government had been established at
Ahmedabad revenue settlements had been made with them, except where they
refused to pay an adequate jumma,
but being men of ignorance or bad circumstances and of very indolent habits,
they were altogether incompetent to conduct village concerns; that their villages were
of vast extent and capable of much improvement; that they were well aware of the
precarious tenure by which they held their villages (as they were merely what might
be called leaseholders), and that he had every reason to believe they would be well
satisfied with an arrangement which would secure to them permanent possession of a
portion of their villages.
5 . Mr. Williamson then proposed for the consideration of the Government a plan to
this effect: to give to each Casbatee one, or according to the circumstances and claim
of the particular person, two, of the smaller villages on a jumma less than that which
they had hitherto paid, thereby keeping up their name and respectability as
landowners, and enabling them to devote their whole attention to cultivating and
improving their properties, while the small amount of revenue levied on the villages
remaining in their hands would compensate them for the loss of those surrendered to
the Government.
6 . This plan was not approved of by the Government. On the contrary, the
Government Secretary wrote to the Assistant in charge of the Collectorate of
Ahmedabad (presumably this same Mr. Williamson, as he so described himself) a
letter bearing date the 22nd of November 1822, acknowledging the receipt of the
latter's letter of the 3rd of August previous, and informing him that though the plan
he suggested might be agreeable to the Casbatees, the Governor in Council doubted
whether it would afford any permanent relief; that it was considered that a more
desirable arrangement would be to give to the Casbatees pensions, to be fixed by the
Government, for a life or a number of lives, but that if these latter should be
unwilling to accept pensions Mr. Williamson's plan should be adopted. The Casbatees
refused to accept pensions, but Mr. Williamson's plan, though adopted in part, was
not adopted in its entirety. One of its provisions of vital bearing on the present
controversy was not adhered to. He had suggested that the Kasbatis should be
secured in permanent possession of such of their seventeen villages as should be left
to them. Whereas, on the 28th of May 1823, he wrote to the Collector of Ahmedabad
informing him that he (Williamson)
had concluded an arrangement with the Casbatees of Viramgam by Which

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 they are to retain, daring the pleasure of the Government, nine of the villages
found under their management when the pergunna fell into our possession.
7 . He proceeded to point out that by this arrangement the interference of the
Casbatees would be removed from eight of their villages, the produce of which was
valued at 13,800 rupees, while that of those remaining with them was only valued at
5,300 rupees, but that the jumma in respect of these latter was so small, namely
1,925 rupees, that there would remain for their maintenance 3,375 rupees, a sum
differing but little from that of 3,820 rupees, which, according to his calculation, was
all that would have been available for their maintenance had they continued in
possession of their seventeen villages. Then follows this passage :-
The lease being granted for seven years affords the Casbatees an opportunity
of availing themselves of these capabilities (i.e., the capabilities of their
villages of improvement). The condition of the villages and the rules
respecting leases laid down by Government guided me in fixing the term.
8 . On the 23rd of June 1823, the Secretary of the Government of Bombay wrote to
the Collector of Ahmedabad informing him that the Governor in Council approved of
Mr. Williamson having made an-
agreement with the Casbatees by which they are to retain during the pleasure
of Government nine of the villages found under their management when the
pergunna fell into our possession.
9. The expression "at the pleasure of Government" is not Very happily chosen. Since
leases for terms of seven years were to be given to the Kasbatis, it obviously could
not have meant that they were to hold these nine villages merely as tenants at will of
the Government. What it must, in their Lordships' view, have meant in this
connection was that they should receive at once leases for a terra of seven years, and
that after the termination of these leases the Government would be free to deal with
them as it pleased, to renew their leases or to permit them to continue in possession
without leases, or to dispossess them altogether, as the Government might in its
discretion think fit. If that be so, then there could not have been on the part of the
Government a more emphatic assertion of their resolve that the lessees should not
have any legal right, as against it, to a renewal of their leases or the permanent
possession of their villages.
1 0 . Before dealing with the action which the Government of Bombay took in
reference to this village of Charodi on receipt of these reports it is essential to
consider what was the precise relation in which the Kasbatis stood to the Bombay
Government the moment the cession of their territory took effect, and what were the
legal rights enforceable in the tribunals of their new Sovereign, of which they were
thereafter possessed, The relation in which they stood to their native Sovereigns
before this cession, and the legal rights they enjoyed under them, are, save in one
respect, entirely irrelevant matters. They could not carry in under the new regime the
legal rights, if any, which they might have enjoyed under the old. The only legal
enforceable rights they could have, as against their new Sovereign, were those, and
only those, which that new Sovereign, by agreement, expressed or implied, or by
legislation, chose to confer upon them. Of course this implied agreement might be
proved by circumstantial evidence, such as the mode of dealing with them which the
new Sovereign adopted, his recognition of their old rights, and express or implied
election to respect them and be bound by them, and it is only for the purpose of

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determining whether and to what extent the new Sovereign has recognised these
anticession rights of the Kasbatis, and has elected or agreed to be bound by them,
that the consideration of the existence, nature, or extent of these rights become
relevant subjects for inquiry in this case. This principle is well established though it
scarcely seems to have been kept steadily in view in the lower Courts in the present
case. It is only necessary to refer to two authorities on the point, namely, the case of
Secretary of State v. Kamachee Boye Sahaba (1859) 7 M.I.A. 476 and Cook v. Sprigg
[1899] A.C. 572.
11. In the first this Board had to deal with the action of the East India Company in
seizing in exercise of their Sovereign power, in trust for the British Government, the
Raj of Tanjore, and the whole property of the deceased Rajah, as an escheat, on the
ground that, by reason of the failure of the male heirs of the latter the dignity of the
Raj was extinct, and that the property of the Rajah had thereby lapsed to the British
Government. Lord Kingsdown, delivering the judgment of the Board, is, at page 540,
reported to have expressed himself thus:-
The result, in their Lordships' opinion, is, that the property now claimed by
the respondent his been seized by the British Government, acting as a
Sovereign power, through its delegate the East India Company; and that the
act so done, with its consequences, is an act of State over which the
Supreme Court of Madras has no jurisdiction.
Of the propriety or justice of that act, neither the Court below nor the Judicial
Committee have the means of forming, or the right of expressing if they had
formed, any opinion. It may have been just or unjust, politic or impolitic,
beneficial or injurious, taken as a whole, to those whose interests are
affected. These are considerations into which their Lordships cannot enter. It
is sufficient to say that, even if a wrong has been done, it is a wrong for
which no Municipal Court of justice can afford a remedy.
12. Now, in that case the act complained of was of a tortiou character.
13. In the second case the Judicial Committee had to deal with a concession given by
the ceding Sovereign, the paramount Chief of Pongoland. The appellants sought to
enforce in a Court of law their rights under this concession against the English
Government to which the territory over which the concession had been given was
ceded by this Chief. The decision in the first-mentioned case was followed, the above
quoted passage from the judgment of Lord Kingsdown approved of, and it was held
that the annexation of territory was an act of State, and that any obligation assumed
under a treaty either to the ceding Sovereign or to individuals is not one which
municipal Courts are authorised to enforce. As far, therefore, as the legal rights of
the Kasbatis, enforceable against the Indian Government in Indian Courts, are
concerned, the above-mentioned cession of territory must be taken as a new point of
departure. Mr. Williamson's conclusions as to the positions, rights and interests of
the Kasbatis may have been quite erroneous. The Kasbatis may have been absolute
owners of their villages, as the respondent contends, and yet the consideration of
their ante cession rights is beside the point, save so far as it can be shown that the
Bombay Government consented to their continuing to enjoy those rights under its
own regime.
14. In their Lordships' view, putting aside legislation for the moment, the burden of
proving that the Bombay Government did so consent to any, and if so, to what

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extent, rests, in this case, upon the respondent. The Kasbatis were not in a position
in 1822 to reject Williamson's proposal, however they might have disliked it, or to
stand upon their ancient rights Those rights had, for all the purposes of litigation,
ceased to exist, and the only choice, in point of law, left to them was to accept his
terms or be dispossessed. There is nothing, therefore, to support the contention that
they never would have accepted Williamson's terms had the permanent possession of
their villages not been promised to them. It may well be that the Bombay
Government did not intend to disturb them, and even intended, if all things went
well, to grant to them, as acts of grace, new leases as the old leases expired, and it
may also well be that the Kasbatis fully believed and trusted that this would be done,
as indeed for many years it was done. From these facts, if they existed, moral
obligations (with which this Board is not concerned) may arise, but the mere
repetition of such acts of grace cannot per se create legal right to their continuance.
15. Though notice was served on the two plaintiffs to produce all documents in their
possession touching the issues raised in the suit, no patta or Kabulayat executed in
1823 was produced or given in evidence, but two Government records of that year
were produced as secondary evidence of the contents of a patta then granted to the
Kasbatis then in possession of the nine villages retained by them, including this
village of Charodi. According to these records a palla of the village was then given to
Bapabhai, the father of Fatumyia, for a term of seven years, at a jamabandi of 100
rupees, with a covenant by the lessee that he should not sell or mortgage the village,
or give, or allow anyone to give, any land of the village in Pasayta, or keep any debt
upon the village, but should make it prosperous, and should hand it over to the
Government in the year 1831. If these be the true contents of the patta they
absolutely negative the existence of any legal right enforceable in an Indian Tribunal,
either to have the leases of the village from time to time renewed, or to continue in
possession of it after the leases had expired.
16. As to this village of Charodi, one must start then on the inquiry as to what rights
were granted by the Bombay Government to the respondent's ancestors, with this
admitted fact, that in the sixty-eight years which have elapsed between the year 1822
and the institution of this present suit, not even in one of the several pattas granted
to them is any provision to be found to the effect, that upon its expiration a new
patta is to be granted to the lessees or their representatives or successors, while the
very first of these pattas contained a clause expressly negativing the existence of
such a right. The reasonable and proper inference to be drawn from the silence of the
pattas on this important point is, Sir Erle Richards, on behalf of the appellants,
contends, that the legal right to obtain renewals of the pattas was never conferred
upon the respondent's ancestors. And, no doubt, if the draftsmen of these
instruments had even a rudimentary knowledge of their business, one would have
expected that such an important matter as that would have been provided for, but,
unfortunately for this contention, those experts have drawn these instruments in
language so obscure that the instruments could scarcely have been more obscure had
obscurity been aimed at, and have resolutely omitted from every patta but the first
the ordinary provision to be found in every properly-drawn lease, that the lessee
shall deliver up possession at the end of the term. Mr. De Gruyther, on behalf of the
respondent, on his side not unnaturally contends that the inference to be drawn from
the continued emission of such a provision is that the lessees had a legal right to
continue in possession after the patta, or lease, had terminated. He puts forward,
moreover, as their Lordships understood him, this additional contention, namely, that
in 1822 a settlement was made with the ancestor of the respondent then in
possession of this village of Charodi, in which the amount of the jumma was fixed,

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that the effect of such a settlement is that the person in possession by whom the
jumma is to be paid, was fixed or settled permanently in the possession, at all
events, of this village, with a right to manage it, that the pattas could not have been
designed to take away the rights thus conferred, and that the only way of reconciling
the grant of them with the relation created by the settlement is to hold that the patta
only dealt with the jumma and the mode of management of the village, not with the
tenure of it, if that term may be used. To determine which, if any, of these
contentions is well founded, it is necessary to examine in detail the provisions of
those pattas the contents of which are satisfactorily proved.
17. First, then, as to the pattas granted on the 31st of August 1833. In the year
1827, during the currency of the first lease a report was made to the Talukdari
Settlement Officer by Lieutenant Melville, of the 7th Regiment, in which he described
the Kasbatis of Viramgam as proprietors of certain villages. He apparently was not
aware that they then actually held under pattas for terms of years granted to them by
the Bombay Government. No importance can, therefore, be attached to his use of the
word "proprietors." In July 1831 the question of the increase of the jumma fixed by
the first batch of leases was under consideration. Several Kasbatis presented a
petition to the Government insisting that the jumma fixed in 1822 was then fixed
permanently, and should not be increased, also asserting that it was part of the
arrangement made by Williamson that the eight villages taken from them in the first
instance should, at the end of the seven years, be restored to them, and claiming that
this arrangement should be carried into effect. The reply of the Government to this
petition, dated 16th September 1831, was to the effect that the order made by the
Government on the 16th of November 1822 could not be set aside. Sometime
thereafter the above-mentioned lease was granted to Bapabhai, the father of
Fatumyia, and his brother, Miabhai, as the lessees. It is endorsed as having been
delivered to the latter. The jumma is increased to 142 rupees, payable in eight
installments, at different times, and in unequal amounts. The term is seven years,
commencing in the year 1850-31 and terminating in the year 1836-37.
1 8 . By the second clause of the lease it is provided that on failure to pay any
installment on the day named, the Government are to "take back" the patta, and
cause the revenue of the village to be collected by other hands, the lessees being
responsible for any deficit in the year in which the patta is taken over, and that at the
end of that particular year the Government
would, if it so pleases, give the village to some person other than the
lessees, who it was asserted shall not get it,
but should be held liable for any loss which might accrue to the Government during
the remainder of the term.
1 9 . The seventeenth clause provides that if the Government should find that the
lessees were spoiling the village, or did not abide by the clauses of the lease, the
Government would send arbitrators to inquire into the matter, and if they should find
that the village would be spoiled if allowed to remain in the hands of the lessees the
patta would be taken back from them, and they would have to pay such a penalty as
the Government might choose to impose.
20. The facts that the granting of a patta for seven years was part of the arrangement
made with Mr. Williamson, and that the patta then granted contained a clause that the
village should be given up to the Government at the end of the term, coupled with

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the clauses of the lease of 1833, providing for the transfer of the village in certain
events to persons other than the lessees, are quite destructive of the theory that
these pattas merely regulated the amount of the jumma but not the tenure, and that
independently of them altogether this family of Kasbatis was fixed in permanent
possession of this Village of Charodi. In the year 1838 a new patta was apparently
granted for seven years, but neither the original nor any copy of it was forthcoming
at the trial. On the expiration of this term in the year 1845, the Collector forwarded to
the Revenue Commissioner of Ahmedabad a report, dated the 8th of September 1845,
proposing, amongst other things, to increase the jumma of this village. In it he sets
forth in paragraph 5 that the Kasbatis being sent for in order to enter into a fresh
settlement, declared that the settlement made by Mr. Williamson was permanent and
that the jumma was not to be increased. They were unwilling to take leases, on any
terms other than the original. The Collector, thereupon, refused to renew the leases
and limited the privileges of the Kasbatis to the receipt of 20 per cent on the revenue
pending the pleasure of Government. In the 10th paragraph of the report he proceeds
to add :
This long enjoyment of the villages at the same rental has increased their
(i.e., the Kasbatis) real or feigned impression that the original settlement
was permanent, which it certainly was not.
21. He then proposed that the rent of the villages should be slightly increased, and
that if the Kasbatis did not accept the leases offered, the villages should continue
under the direct management of the Government, and the Kasbatis should be allowed
20 per cent of the revenue.
22. It will be observed that both parties to this dispute took their stand respectively
on Mr. Williamson's arrangement. They only differed as to its terms. The Kasbalis
insisted that according to it the eight villages taken from them were to be restored to
them at the end of the term of the first lease, and that the rent should not be
increased, while the Government. insisted that the grant of any lease after the first
was entirely a matter at their discretion.
23. The Government refused to yield. The position they took up clearly appears from
a letter, dated 24th February 1847, addressed by the direction of the Governor in
Council to the Revenue Commissioner of this district, Mr. A. Blane, pointing out that
the Casbatees did not appear from the former proceedings connected with the
settlements previously made with them to have any valid title to
a permanent continuance of the terms upon which they have hither to held
their villages.
and suggesting that the jumma should be increased by 5 per cent, that if they
consented to this their term might be renewed for seven years, but that the Governor
in Council desired that a distinct reservation should be inserted in the new lease
endorsing the right of the Government to raise the rent if circumstances should show
it to be expedient, and that it they refused to consent to this the villages should be
retained under Government management, an allowance being made to the Kasbatis
during pleasure to an amount equal to the profit which Mr. Williamson settled would
have been left them. There could scarcely be an assertion more absolute than this of
the power of the Government to alter the terms of any leases they might make to the
Kasbatis as they themselves should deem fit, to give or withhold such leases at will,
and to dispossess the Kasbatis and take the management of these villages into

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Government hands.
24. The existence, however, in the Bombay Government of the power and right which
they assert in this letter of the 24th of February 1847, belonged to them, is equally
inconsistent with the existence in the respondent or her ancestors either of the
absolute ownership of this village or of the right to have the leases of it perpetually
renewed. The Government terms were ultimately accepted, and a new patta of the
village, bearing date the 4th of September 1849, was granted to Fatumyia and Bapuji,
his brother (the respondent's grandfather), to hold for a term of seven years from
(1844-45) to (1850-51) at the increased yearly rent of rupees 144-1-9, payable by
five installments on the days therein named. The lease is executed by the lessees. It
will be found at p. 68 of the Record. Had not the draftsman of this instrument been,
like his predecessor, almost enamored of obscurity, one would have expected that he
would have laid at rest all matters of dispute on this point by simply inserting in this
lease the proper and usual provision that at its termination the lessees would deliver
up possession of the demised premises to the lessor. Through ignorance or
carelessness he resolutely abstained from doing this. He did, however, insert some
clauses which merit attention. It is provided, first, that if the installments of the rent
be not paid when due, attachment will be levied on the village by the Government,
and "the management" will be carried on, presumably, by the Government. Secondly,
that the lessees shall not alienate or pledge the village or the land composing it to
anyone. Thirdly, that the lease was granted out of kind consideration for the lessees'
maintenance, that they, the lessees, should therefore make good arrangements for
the prevention of crime in the village, or otherwise the (tharav) settlement would be
cancelled. Fourthly, that if an attachment for arrears of rent were levied by the
Collector, or if a creditor by an application to the Courts caused an attachment to
issue against the village, the management of the village would be taken out of the
hands of the lessees and carried on by the Government, the (tharav) settlements
would be cancelled, and the whole income of the village to be taken charge of by the
Government.
25. Then follows a clause, No. 10, inconsistent to some extent with the succeeding
clause, No. 11, but evidently introduced to put an end for the future to all
controversy touching the increase of the jumma. It provides that the village is given
to the lessees on patta according to the settlement or agreement there-in-before set
out, that when the lease expired the lessees should hold charge of all income and
produce of the village, and should agree to the payment of the amount of the revenue
which the Government might fix, and that if they failed to pay this the income should
be taken charge of by the Government. The eleventh clause provided that the village
was given on patta to the lessees on the agreement there-in-before set out, and that
if they did not act accordingly to the agreement the patta should be void.
2 6 . The existence of the statement that the patta was granted out of kind
consideration for the maintenance of the lessees is due to this, that during the
dispute about the increase of the rent, the two lessees and another person had
presented a petition to the Revenue' Commissioner stating that they were in very
indigent circumstances, that attachments had gone out against their villages, and that
they had not left in their houses corn for their sustenance or any wearing apparel. If
the evidence of the case stopped here it would, in face of this lease, in their
Lordships' opinion, be quite impossible to contend that the patta merely fixed the
amount of the rent, and that by the settlements the lessees or their ancestors had
acquired as against the Bombay Government a right to the property in, or to the
permanent possession of, this village of Charodi. The granting of a lease was part of

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the original settlement or agreement, and these leases are treated in several places as
the instruments by which the estate or interest in the village is conveyed to the
lessees.
27. This clause 10 is the only piece of written evidence produced, indicating even in
the most remote way that the lessees were entitled at the end of each lease to have a
renewal of it granted to them. Prima, facie a lease for a term does not import any
right to a renewal of it. On the contrary, it prima facie implies that the lessee's right
to the premises demised ends with the term. In order that the respondent should
succeed, therefore,' on this point, she must find sufficient evidence, apart from
legislation, of an agreement, express or implied, with the Bombay Government
imposing on them a legal obligation to renew for all time, if required, these leases as
they terminate, and conferring on each lessee the correlative legal right to demand
that renewal. In their Lordships' view it would require something much more clear,
plain and explicit than this confused, and almost unintelligible clause, to be treated
as, in effect, a covenant by the lessor for a perpetual renewal of the lease of this
village.
28. No new patta was granted in 1851. The lessees continued to hold possession and
to pay the rent till 1860. Fresh pattas for one year each were given in the years 1860
and 1861, at an increased rent of 160 rupees, and again from 1862 to 1865; between
1860 and 1870 yearly renewals appear to have been granted, the rent being
sometimes increased. In the year 1874 there was a failure of issue in the case of the
holders of two of the nine villages retained by the Kasbatis under Williamson's
settlement, namely, the villages of Keela and Leah, or Lea. The said Fatumyia claimed
the former village as the nearest collateral heir of the last holder. The Revenue
Commissioner reported upon this matter to the Government of Bombay, and the
Governor in Council passed a resolution, dated the 27th November 1874, by which it
was declared that the tenure of the Kasbatis was merely leasehold, and that their
villages lapsed to the Government on failure of heirs. He accordingly directed that
this village of Keela should be resumed by the Government.
29. This direction was, on the 5th of July 1877, approved of by the Secretary of
State. But Fatumyia and Bapuji, unwilling to submit to this decision, instituted in the
year 1878 a suit against the Secretary of State for India in Council claiming to be
entitled to this village as heirs of the last holder, and they supported their claim by a
document purporting to be a sanad granted by one of the Mogul Emperors some
centuries earlier. The District Judge who heard the suit decided that this sanad was a
forgery, and that the last holder, through whom the plaintiffs claimed, was a mere
leaseholder, and dismissed the action with costs. The plaintiffs acquiesced in that
decision. They never sought to question it in any Court of law. The question of the
renewal of the leases of the Kasbati tenants was brought before the Government of
Bombay about this time by the Revenue Commissioner, and a formal resolution was,
on the 25th of July 1877, passed by that Government to the effect that it appeared all
the leases had expired, that there was no necessity to make any change, it being
quite clear that the villages were held on leasehold tenure at the pleasure of the
Government; that it was desirable to renew for periods of seven years the leases
which had expired, a very slight nominal increase of rent being made in each case, to
show that the Government maintained their rights and would continue so to do and
directed that words should be inserted in the new leases making this perfectly clear.
This resolution was carried out A form of lease in the English language was drawn
up, and on the 7th of October 1878 approved of by the Bombay Government. It
contained, amongst others, clauses restraining alienation and at last providing that

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on the termination or sooner determination of the lease, the lessee should, without
objection or obstruction, yield up the village demised unless the Secretary of State in
Council should then be pleased to renew the lease, and also a condition of re-entry
on the breach of any of the provisions of the lease.
30. A lease in this form on the 22nd of December 1879 was granted to Fatumyia and
Bapuji, the respondent's father. The Kabuliyat was signed by them, but, as they
subsequently asserted that they did not sign the document of their own free will and
pleasure, the appellant does not therefore desire to treat them as bound by it. It can
only be looked at as containing a renewed expression of the view consistently
entertained by the Government in reference to the true position and rights of the
Kasbatis. No further leases were granted. The lessees and those who succeeded them
continued to pay the rent reserved, notice was served in 1898 upon the two ladies,
Bai Nandbai and Bai Rajbai requiring them to quit and deliver up possession of the
village of Charodi on the 31st of July following. It was not disputed that if these
ladies had by the continued payment of their rent become tenants of this village from
year to year, this notice was adequate and sufficient to determine that tenancy. Up to
this the evidence touching the administrative dealings of the Bombay Government
and its accredited officials with the Kasbatis and their villages, including that of
Charodi, has alone been dealt with.
3 1 . Their Lordships are of opinion that the just and reasonable inferences to be
drawn from it when properly considered are, that not only has the respondent failed
to discharge the burden which, as already stated, rests upon her, but that the
Bombay Government never departed from the position in which they were left by Mr.
Williamson's arrangement; that they never by an agreement, express or implied,
conferred upon the respondent or any of her ancestors the proprietary rights in, or
ownership of, the village of Charodi claimed by her; that they never recognised or
admitted the existence of such rights, or of any rights analogous to them, in them or
her; that the only rights in this village which the Government conferred upon her
ancestors were those conferred by the leases which the Government from time to
time, at their own will and pleasure, chose to grant to them (save such rights as are
conferred by the creation of a tenancy from year to year in manner already
mentioned); that this Government never conferred upon any of the lessees of the said
village a legal right to insist, at the termination of his lease, upon a new lease of the
village being granted to him; in other words, that the Bombay Government never
were under any legal obligation to grant any lease of this village; and that the
granting or withholding of a lease of it rested from the first solely in their discretion.
32. It was contended, however, on behalf of the respondent that her case is much
strengthened by a consideration of the Bombay Government's dealings with the
Garasias. They were ancient Rajpoot proprietors, and before the cession of the
Ahmedabad Zilla, stood to their native Sovereigns in that relation, their lands being
cultivated by ryot tenants from year to year and at will. They and the Mewassies were
clearly distinguishable from the Kasbatis. The last-named held their lands by
contract, neither by sanad nor by defiance, and Colonel Walker, the first official
appointed to deal with this district, was well aware that there was no analogy
between the holdings of the Garasias and those of the Kasbatis. The word " Taluk"
was first applied to these Rajpoot proprietors by the British themselves.
Notwithstanding the ancient proprietary rights of the Garasias, they took leases of
their lands from the Bombay Government, and thenceforward their legal rights were,
in accordance with the principle laid down in the authorities already quoted,
determined entirely by the contract which they had made with that Government,

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altogether irrespective of what their position and rights may have been before the
cession of their territory.
33. All this is stated at length in the account by J. Peile, Talukdari Settlement Officer
of the Talukdars of Ahmedabad Zilla, and the measures adopted for their restoration
under and in connection with the Act VI of 1862 of the Bombay Legislature, published
in 1867, pages 7, 9, 14, 42, 43-17, 64, and 67. Indeed, in the preamble of that
Statute it is recited that these Talukdari estates are only held on lease-hold tenure
determinable at the pleasure of the Government. So that the case of the Garasias
makes against the case of the respondent instead of in her favour, inasmuch as it
shows clearly that after the cession of territory to a new Sovereign, when it comes to
be a question of legal right the contract with the new Sovereign is conclusive and the
rights against the old Sovereign avail nothing.
34. It only remains to consider the effect of any of the legislation of the Bombay
Government on the question in issue on this appeal. Act VI of 1862, for the reasons
given in the abovementioned publication of Mr. Peile, does not apply to Kasbali
lessees at all. They never were Talukdars of Ahmedabad in the true sense. They did
not lose their ancient right of ownership of their land by taking leases, as did the
Garasias, and therefore did not suffer the injustice which the Statute was designed to
remedy.
35. The Statute of 1888 is entitled an Act to provide for the revenue administration
of estates held by superior landlords in the districts of Ahmedabad, &c. In the
preamble it is recited that it is expedient to remove doubts as to the applicability of
certain portions of the Bombay Land Revenue Code of 1879 to estates held by certain
superior landlords in the above-mentioned districts, and to make special provision for
the administration of the said estates and for the partition thereof. In the first section
a Talukdar is defined to include "a thakur, mehwassi, kasbati and naik." Section 23
provides that nothing in the Act shall be deemed to affect the validity of any
agreement entered into before the passing of the Act by or with a Talukdar and still in
force as to the amount of his jumma, nor of any settlement of the amount of jumma
made by or under the orders of Government for a term of years and still in force.
Every such agreement and settlement is to have effect as if the Act had not passed.
And Section 33 enacts that certain sections of the Bombay Land Revenue Code of
1879 are not to apply to the estates to which this Act applies. By Section 33 it is also
provided that the word "Taluqdar" shall be substituted for the word "occupant," the
words "registered Taluqdar" for the words "registered occupant," and the words
"Taluqdars holding," or such words to that effect as the word occupancy when
applying this Code of 1879 to the estates to which this Statute of 1888 applies. The
seventy-third section of the Code provides that "the right of occupancy" shall, subject
to the provisions contained in Section 56, and to any conditions lawfully annexed to
the occupancy, save as shall be otherwise prescribed, be deemed to be a hereditable
and transferable property.
36. It is seriously contended, as their Lordships understood, that the effect of this
substitution of the words "the right of occupancy" for the words "the right or interest
of a Taluqdar" in or to his holding, is that a Kasbati's interest in a leasehold held for
a term of years is changed in its nature and becomes a hereditable and transferable
property, notwithstanding that by the very conditions of the lease his interest is
limited to a term, and he is restrained from alienation: and notwithstanding also that
by Section 68 of this Code it is enacted that an occupant is entitled to the use and
occupation of his land for the period, if any, to which his occupancy is limited. These

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two sections, in their Lordships' view, plainly mean that a lessee, whether a true
"Taluqdar" or a "thakur," "mewassie," "kasbati," or "naik," is bound by the terms of
his lease, one term of which is that he shall only occupy for the term of years for
which a lease for years is granted, and prima facie no longer. Section 73 was
amended by the Act of 1901, but the amendment is immaterial on this point.
37. Their Lordships are clearly of opinion that these Statutes do not bear in any way
on the issue raised in this case. They think that the decree of the High Court cannot
be sustained, and that the decision of the District Judge is equally erroneous The
fallacy underlying the former on the point as to the right of the respondent to occupy
permanently is clearly revealed in the passage printed at page 496 of the Record in
which the High Court deals with the lease of 1833:-
There are no other provisions for forfeiture of the management. There is no
provision for renewal of the patta, but it is to be inferred from the nature of
the management and from the fact that the patta was for a term, that renewal
was contemplated. This inference is supported by both previous and
subsequent events; by previous events, because in 1823 permanent
possession by the Kasbatis was contemplated; by subsequent events,
because the renewal did, in fact, take place.
38. Their Lordships, dealing with the legal rights of the parties alone, are clearly of
opinion that the decrees of both Courts are erroneous and should be reversed, that
the main appeal, that of the Secretary of State, should be allowed, and the cross-
appeal dismissed, and that judgment should be entered for the Secretary of State,
dismissing the respondent's action. And they will humbly advise His Majesty
accordingly.
39. The respondent must pay the costs here and below.

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