On Appeal from the High Court of Judicature of Madras
For the Appellant :- Mr. Field, Q.C., and Mr. J. D. Mayne. For the First Respondent :- Mr. Forsyth, Q.C. and Mr. H.C. Merivale. An unsettled polliem in the Madras Presidency may be hereditary; whether it is so, must be ascertained by evidence in each case. Proof of possession or receipt of rent by a person who pays the land revenue to Government is prima facie evidence of an estate of inheritance(1). Where an issue, though in terms covering the main question in the cause, does not sufficiently direct the attention of the parties to the main question of fact necessary to be decided, and a party may have been prevented from adducing evidence, a fresh issue may be directed to try the principal question of fact. The first issue raised in the lower Court, was whether a zemindary or the income thereof was answerable for the debt of the parties to the main question of fact necessary to be decided, and a party may be directed to try the principal question of fact. The first issue raised in the lower Court was, whether a zemindary or the income thereof was answerable for the debt of the late zemindar. Their Lordships granted an issue to try whether the late zemindar had an estate of inheritance in the zemindary which descended to his minor son as his heir. Terms on which such issue will be granted. [Para ](1) See the head-note to the case; infra,The Collector of Trichinopoly, Decided on 14, 15, 16 June 1874 and 13.3.1874.
This was an appeal from a decree of the High Court of Judicature at Madras, bearing date the 13th of May, 1870, which partly reversed and partly confirmed a decree of the Civil Judge of Madura, bearing date the 14th of April, 1869. The suit in which the appeal arose was brought by the Appellant against the Respondents to recover the sum of Rs. 39,678. 11a. 11p., being principal and interest due under a razinamah executed by the late Zemindar of Gundamanaikanoor. The Zemindary of Gundamanaikanoor is an ancient estate in the district of Madura, in respect of which no sunnud under Reg. XXV. of 1802 had been granted to the zemidnar. The late zemindar appears to have come into possession of his estae somewhere about the year 1837, being then a minor. During his tenure of the estate disputes arose between the late zemindar and his riots, which resulted in a litigation spreading over eight or nine years, during which the rents were not collected. In consequence, the Government peshcush fell into arrear, and the collector issued an order directing the attachment of the zemindary. For the purpose of discharging these arrears, and also of making the necessary repairs of dams, the late zemindar borrowed money from several persons, including the Plaintiff, and finally paid off all his other debtors by a loan contracted with the Plaintiff. In 1863 there was due on this account from the late zemindar to the Plaintiff the sum of Rs. 29, 788. 11a. 9p., for which he instituted a suit in the Civil Court of Madura. That suit was terminated by a razinamah, dated the 26th of April, 1864, which provided that the late zemindar should pay to the Plaintiff the sum of Rs. 32,259. 2a. 5p., being the amount of debt, costs, and interest, by five annual instalments, and that, in default of even a single instalment, the Plaintiff, without reference to the other instalments, should, after deducting what was paid up to that period, get the balance with interest realised by a warrant and Court precept issued against the Defendants' zemindary. It was finally prayed by the razinamah that a decree might be passed according to the terms of the razinamah. On the 8th of December, 1865, an application for execution of this razinamah was made to the Civil Court of Madura. This application was refused, owing to a recent decision of the High Court, which laid down that razinamahs could not be carried into effect by the Courts. The Plaintiff, in 1866, brought a suit against the late zemindar on the razinamah, which was discontinued on account of the zemindar's death; and the Court directed him to bring a fresh suit after the heirs of the deceased were nominated. He accordingly filed his plaint in the Civil Court of Madura on the 24th of February, 1868, against the collector of the Court of Wards, on behalf of the minor son of the late zemindar (who was nominated his father's heir), the manager of the estate, and the guardian and the mother of the minor. On the 20th of November the collector filed his written statement in answer. "The first Defendant," he stated, "begs to submit, in the first instance, that the estate of Gundamanaikanoor is an unsettled polliem, for which no permanent sunned has been granted. A sunnud milkeut istimirar (grant of proprietary possession in perpetuity) is necessary to constitute a zemindary hereditary property, according to the decree passed by the late Sudder Court in appeal suit No. 11 of 1816, as in their decree book, No. 1. The first Defendant further begs to submit, that in accordance with the decree passed by the late Sudder Court in appeal suit No. 14 of 1817, as in book No. 1, the appointment of a successor to the said zemindary entirely depends upon the will and pleasure of the ruling power; and the Government, in the exercise of this prerogative, have appointed the minor son of the deceased poligar as his successor.(1) The various passages of the Regulations which relate to this subject are stated, infra, p. 305, in the judgment in Lekkamani's case.
(1) Infra, p. 282.
As the decision in the last-named case overruled the doctrine upon which the suit of Oolagappa Chetty v. Arbuthnot and Others. had been decided adversely to the Appellant, and as the time for appeal to Her Majesty in Council had expired, the Appellant applied for special leave to appeal to Her said Majesty in Council; stating, amongst other things, that the title to numerous estates in the Presidency of Madras depended upon the question whether unsettled polliems were held only for life, or for an estate of inheritance, and that it was for the public interest that such question should be determined by a final decision. Her Majesty, by Order in Council, bearing date the 5th of February, 1872, accordingly directed and ordered that the Appellant should be allowed to enter and prosecute his appeal. The appeal now came on to be heard. The history of the poligars is to be found in the Manual of the Madura District, compiled from official sources by Mr. Nelson, by order of the Madras Government; and in the Regulations of 1802 and 1822. It appears that excessive assessment produced rebellion, and that the Government afterwards contemplated a permanent settlement of the rent to be exacted from each poligar; but some of the polliems were treated as only temporarily settled, and some were assumed for a time, in order to ascertain what they would yield. In the meantime a poligar in possession of his polliem, even if the assessment has not been permanently settled, can exercise almost every power which a proprietor in England could exercise. He lets land to riots, receives rent, pays peshcush to Government, and has, as it were, the fee simple; and the Government may resume the land if he does not pay. On his death his son gets the land. He appears to be the owner, the Government shows no intention to interfere with his assessment, and credit is given to him as proprietor. In the present case the Appellant lent money to the late zemindar for purposes beneficial to him and to the estate; the family does not contest it; it is only the collector, as guardian of the minor, who disputes the claim; it was admitted that this was a reasonable charge if the estate was liable to the debts of the ancestor. There is no evidence of the nomination of the holders of this polliem by the Government, or of any interference on its part. The Hindu family is a continuous institution; but with family enjoyment you find family obligations. Even where an estate is held as a raj by a single member of an undivided family, those who are joint with him in family are entitled to maintenance. Where the Government leaves a polliem in the possession of one family from generation to generation, this gives the poligar credit, and enables him to obtain advances. The razinamah is in the nature of a charge on the polliem, and was made upon good consideration. Among the Hindus, prima facie, all property is hereditary. Even the humblest village offices have a strong tendency to become hereditary. All property, being hereditary, is liable in the son's hands , for the debts of the father. The liability for debts is not only legal, but religious. Sir Thomas Strange, Hindu Law, vol. i.p. 166, states, as the two grounds on which a man takes property, the duty of performing the obsequies, and that of discharging the debts : and in this respect he makes no distinction between, personal and real property, ancestral and acquired. In the case of Hunooman Persaud Panday v. Mussumat Babooee Munraj Koonweree, 6 Moore's Ind. Ap. Ca. 421 the Court says that the liability depends on the character of the debt, and not on that of the estate. The principle of the adverse decisions was an alleged universal rule, that no unsettled polliem could be hereditary; and therefore, if it be shown that one unsettled polliem was hereditary, the principle fails. It appears from several Madras cases that unsettled polliems might be hereditary. Madras Dec. 1857, p. 51; Madras Dec. 1860, p. 72; Collector of Madura v. Veeracamoo Ummal 9 Moore's Ind. App. Ca. 446. the collector gave no evidence of the actual history of the devolution of the zemindary. The proposition on which the Court went was general, that no unsettled polliem could be hereditary. We submit that some unsettled polliems may be hereditary and some not. There being a current of decisions that unsettled polliems were not hereditary, that point was not contested in the Court below; but it was not admitted that any evidence applying to this polliem in particular, showed it not to be hereditary, and we are not excluded from contending here that there is no general rule that an unsettled polliem cannot be hereditary. Supposing there were no evidence on either side, we say that polliems must be taken prima facie to be hereditary, though there are instances the other way. Even if a sunnud had been given, it would not be conclusive against us(3). It is common to take a new sunnud on descent even where the tenure is hereditary. The allegation that this property is not of a hereditary character rests on arguments from Regulation XXV. of 1802, which was explained by Reg. of 1882. The decisions of the Sudder Court also rely on Reg. XXV. of 1802. Acts of the native Government in turning out, do not shew that the Government had right, only that it had power.(3) 14 Moore's Ind. Ap. Ca. 247
Regulation IV. of 1822. The decisions of the Sudder Court also rely on Regulation XXV of 1802. Acts of the native Government in turning out, do not shew that the Government had right, only that it had power. Bengal Regulation 1793, preamble, recites the practice of Asiatic Governments. There is a difference between the Bengal and Madras preambles; but it is a mistake to suppose that the Madras Regulations recognise no proprietary right, except that which rests on a permanent settlement. There is no ground for holding that the estate of the zemindar is that of a tenant for life. If not hereditary, he would be only at will a squatter. In the west of India, large tracts are held by Nairs and others, without any sunnud, where the estates descend according to their own law. This interpretation of the Regulation only applies to those who have got sunnuds. It takes away no rights. Regulation IV, 1822, means that the Regulation is not to affect any class of property except as to the people who are to receive sunnuds; leaving all others as before. If we suppose Regulation XXV of 1802 had never been passed, and we go back to the old law, we find the property to be in the cultivators, Government having a right to a share. In early Hindu society, there was no intermediate between the sovereign and the cultivator. Under Mahomedan law there were intermediates. Some Hindu tribes remained imperfectly conquered, and their chiefs retained greater power than elsewhere. This appears from the Fifth Report of the Select Committee of the House of Commons on the affairs of India (1812), and from the Madura Manual. The list of names in the Manual, pp. 10-12, shows that the polliems were held by Hindus. Sir Thomas Munro's account, in the Appendix to the Fifth Report, of the poligars of other districts, shows that their estates descended from father to son. The Government has treated them all as proprietors, has assumed the land when the rent was in arrear, and handed it back eventually. It has paid pensions to the ousted zemindars, and accepted the surrender of the property from them when they thought the burden of the rent too great. The permanent settlement was intended for all; but the Madras Government found it difficult to determine the annual demand in each case(1)(1) Pages 98-100, Part iv. Madura Manual, extra. Proc. of Board, 1815..
In the official correspondence, they speak of the poligar paying his arrears on his restoration; but they still use language showing they considered the property his. The reports divide the lands into Government lands, where the Government is absolute owner and makes its bargain with the riots; and polliems, in which the Government takes the tribute, not claiming property. In a recent case from Ganjam, of an unsettled polliem, it was laid down that a sunnud is only intended to fix the amount of the revenue, not to recognise the title of the possessor of the land. The rights as between zemindar and ryot are the same, whether there is a sunnud or not. The razinamah was given for good consideration, and the Court ought to have declared in the terms of the razinamah. It is the practice of the Momssil Courts to carry such agreements into effect. In the case of the Collector of Madura v. Veeracamoo Ummal, 9 Moore's Ind. Ap. Ca. 446, the Government sued for possession by escheat for want of male heirs of a polliem not held under Istimrari Surund, alleging that females were not competent to succeed to a polliem, though it had itself installed females as heirs; but the Privy Council sustained the decree of the Sudder Dewanny at Madras, which decided that a female was entitled to succeed as heir. No doubt the Sudder Court refused on that occasion to listen to the plea that the Government was entitled to appoint at will to such a polliem on the death of the incumbent, merely because the point had not been taken in the Court below; but it would certainly have been taken in the Court below if it had been a sound argument. It was singular to sue for an escheat if the estate was not hereditary. The early Madras cases were decided without argument, and upon less information than the Courts now possess. The case of Naragunty Lutchmeedavama v. Vengama Naidoo, 9 Moore's Ind. Ap. Ca. 66, shows that an unsettled polliem may be hereditary. But the Government in that case would not select, but gave leave to the Applicant to sue as heir, and left it to the Court to say who was heir. This is fatal to the argument that polliems are not hereditary; for if Government had a right to appoint, it would have appointed. In the present case it was for the Defendant, the collector, to prove his assertion that the polliem went by the appointment of Government. The history of the polliems shows that the Government treated the poligars not purely as landowners, but changed, assumed, restored, and dealt with their estates in various ways. The poligar was originally an officer and not a proprietor, and the language of the Madras Regulations shows that he was only to acquire proprietary rights on receiving a sunnud after the Government had made a settlement of revenue with him in perpetuity. It is for the Appellants to shew that the estate was hereditary, and they have adduced no proof of it. No doubt the Government has usually appointed the heir upon a vacancy, and people seeing father followed by son, think the property must be hereditary, just as the eldest son of the Sovereign is popularly supposed to be Prince of Wales by right of birth, though, in fact, he is always created Prince of Wales. Though the succession continued in the same family, it is not right, in the absence of all evidence, to presume that the tenure was hereditary. The report of the case of Lekkamani v. Zemindar of Marungapuri, 6 H.C. Mad. 226 shows that the Judges thought that there was a great variety of tenures. In some cases, owing to the remissness of Government, no appointments were made by the Government. In others, nominations were made by the Government, always choosing in the family, and generally the eldest son. Probably they merely appointed without giving a sunnud on the occasion. In this case the zemindar contracted a debt and the creditor sued him; and upon his death his son was not made party, but a fresh proceeding was instituted, treating the son as a stranger. The order of Court required that heirs should be nominated, which implies that they required nomination. The son required no nomination to constitute him heir-at-law, though he was not entitled to the polliem without nomination. In the Marungapuri case the Court examined the evidence adduced to shew that the Government appointed. Where property in anything is predicated--as it is said in the Regulations that the Government has the proprietary right-it must be assumed to be absolute until the contrary is proved; and the fact that the heir was usually appointed does not take away the right of Government. This is a very peculiar property; it had its origin before B the days of the British Government, but we acknowledged it. It is not denied that, by special grant of Government, a polliem. may be hereditary. In the Naragunty Case, 9 Moore's Ind. Ap. Ca. 66, Government had granted a polliem to a man and his heirs, and the question was who was his heir. In that very case it appears that in 1866 the only surviving representative of the eldest branch of the family was nominated by the Governor of Madras in exercise of his prerogative. If the son takes, not as heir but under the appointment, this property cannot be answerable for the father's debt. It was assumed in the Court below that the general law was, according to repeated decisions of the Madras Court, that polliems for which no sunnud had been given were not hereditary, but subject to appointment by Government; hence no evidence was offered to shew that this polliem had gone by appointment. If this is not held to be the general law, the case ought to be remitted to the Madras Courts for the purpose of taking evidence on the subject. It was then mentioned to their Lordships that an appeal from the High Court of Madras in the Marungapuri case was coming on for hearing at an early date, and it was ordered, by consent of the Counsel on both sides, that the further argument of the present case should stand over till the Marungapuri case was before the Committee. .