PRIVY COUNCIL

                Kumar Satya Narain Singh

                Vs.

                Raja Satya Niranjan Chakravarti

P.C.A. Nos. 107 and 108 of 1921 from Patna Appeals Nos. 112 of 1918 and 6 of 1919
(Lords Buckmaster J. Sumner, Sir John Edge, Mr. Ameer Ali and Lord Salvesen.JJ.)

                26.10.1923

                JUDGMENT

Lord Sumner J.

1. This was a suit to enforce by sale certain mortgages of lands, which may be shortly
called the Hundwa estate, created by the late Udit Narayan Singh of Lagma, in
PerganaHundwa, a jungleterrytaluq in the SantalPerganas District. The suit was
defended on behalf of Kumar Satya Narayan Singh, whom the widow of Udit Singh
adopted under his testamentary authority as his son, and the ground of defence was
that the Hundwa estates were and are inalienable and passed unencumbered to this
defendant as successor on the death of Uditsingh, the mortgages notwithstanding. Two
main questions arose: the first, whether the estates were ever inalienable at all; and the
second, even if so, whether before the dates of the mortgages they had not become
alienable in full. Both Courts rejected the defence: the Subordinate Judge mainly on
the first point; the High Court of Patna, while accepting the original inalienability of
the estates, definitely upon the second. This defendant now appeals.

2. The title and tenure asserted by the appellant rest on an alleged grant and
subsequent confirmation of a permanent ghatwali tenure made to his ancestor Subha
Singh by Captain Brown and Mr. Dickinson, officers of the ruling power, in 1776 and
1794 respectively.

3. The respondents' case is that nothing more took place than an ordinary revenue
settlement of these estates, then belonging to Subha Singh, confirmed at the
permanent settlement, and subject to no tenure or condition of inalienability.

4. In a very elaborate judgment the learned subordinate Judge examined the whole
history of Hundwa for over a century and a half, and his conclusions may be thus
summarized.

5. [Here their Lordships narrated the history of Hundwa estates and proceeded.- -]

6. Undoubtedly this long series of administrative acts, records and reports, which
either affirmatively declare Hundwa to have been shikmighatwali of Kharakpur or
negatively treat it as, at any rate, wholly free from any ghatwali services to the
Government, is, as the learned Subordinate Judge found it, a very impressive
circumstance. If the problem had been to infer the true original grant, which, in the
absence of the text of it, could only be collected from the evidence of what was done
and left undone in connection with Hundwa by the ruling power, it would no doubt,
have been difficult to infer, as the explanation which best fitted all the facts, that the
right originally granted consisted of a ghatwali tenure, held from the East India
Company direct. The production of the authentic texts of the original grants
completely alters the question, and it becomes in the first instance one of construction.
The reports of the Government officers are not even CONTEMPORANEA
EXPOSITIO for the earliest one must have been based on hearsay accounts, already
one or two generations old, and presumably not on any inspection of the original
grants, since they are not mentioned.

7. In the High Court the learned Judges differed from the conclusion of the learned
Subordinate Judge, holding that Hundwa was originally a Mogul ghatwali, hereditary
in the family of the defendant's ancestors, which Captain Brown and Mr. Dickinson
confirmed but did not originate, by the potta and sanad in question. They arrived at
this conclusion on the construction of the two documents, read in the light of
contemporaneous conduct and of prior history, which they conceived to have been
sufficiently established or to be common knowledge. Roe, J., thus states their
conclusions :-

       "The Hundwa tenure was, prior to the Dewanee, a Mogul ghatwali. The effect
       of assumption of jurisdiction over the jungle TeraiMahals by the East India
       Company was at most to convert the allegiance of the ghatwal from an
       allegiance to the Mogul Empire to an allegiance to the East India Company. The
       permanent settlement did not destroy the Company's right to enforce nor relieve
       Purander Singh from liability to render that allegiance. Nothing that has since
       been done has altered the position.... The descendants of Purander Singh have
       never specifically refused to render services as ghatwals.... The entry of the
       ghatwali service attached to the Mahal in Exhibit F still stands.... It may be that
       the power to enforce these services has lapsed by limitation. That question was
       not argued at the bar and could not be raised in this suit. I am satisfied that the
       right has not been destroyed by any definite act."
8. As the construction, which was put upon these documents in the High Court, was
strenuously contested at their Lordships' bar by the respondents, who prayed that the
judgment of the Subordinate Judge on this point should be restored, the first question
for decision will be whether or not the lands of Hundwa were at any material time a
ghatwali tenure at all or not. Without proceeding upon the same line of reasoning as
that adopted in the High Court, their Lordships are of opinion that they were.
Formidable as the series of official acts and reports above mentioned appear to be,
their Lordships think that, as soon as the texts of original instruments, such as the
potta and sanad in question, dating from a time anterior to all these matters, are
produced and put in evidence, the nature of the estate of Hundwa rests upon their true
construction and important not upon the notions entertained about them in later
generations.

9. The instrument of 1776 is one of a considerable number of similar instruments
executed by Captain James Brown, of the East India Company's service, who gave a
full account of the district, which was published in India Tracts, 1787. He was one of
the officers employed in introducing order into the five jungle Teraimahals, including
Birbhum and Kharakpur. Though the originals of the two documents in question are
not now forthcoming and probably have been lost, they had been so often produced
and accepted in numerous suits for the last eighty years and more, that the translations
used in the present case have been accepted without question as truly representing
authentic originals. The document of 1776 is headed "Patta terms of Kabuliyat
granted." etc. (which Kabuliyat, however, is also not forthcoming), and is entitled in
the commencement thus : "This IstamrariMokurrariPatta is granted to you... at a
varying consolidated jumma, Rs. 2701, in respect of PerganaHundwa." The document
itself sets out no parcels for PerganaHundwa, though there is an express exception of
Brahmottar and other lands, "jagirs granted to archers and Barkandases. perquisites of
Imlah lands and other Zemindari expenses." Then follow certain clauses which may
not go beyond duties then ordinarily discharged by Zemindars, though among them
occur the words "You should go round your village, escorted by archers and
Barkandases holding jagir grants, as per details given below, and protect the villages";
but further on occurs this most significant clause : "When called by the Hazur you
should be escorted by a body of archers and Barkandases 307 in number, of whom, the
Sardars will be 7 and archers and Barkandases will be 300, and should appear before
the Hazur, and you ought to be careful about the boundaries and limits of your
village."

10. There follows a sort of summary or schedule headed "Annual jama of the
IstamrariMokurari settlement... Barkandases and archers," with details showing how
Rs. 2,701 are made up, which throw no light on the present question. It is clear that
the whole sum payable to the revenue is payable by Raja Subhao Singh. There is
further, a contemporaneous Dowl, which, it is common ground, supplies the parcels
intended to be included in this settlement. It is admitted that the lands in mortgage are
lands to which the instrument of 1776 applied but it has to be observed that, when
Hundwa is mentioned in the interval, since then, it cannot always be concluded that
the whole of the lands so referred to were either lands covered by this instrument or
lands belonging to the family of Subhao Singh and Udit Singh. Their content seems to
have changed from time to time. These facts add to the obscurity of the past history of
Hundwa, but as no issue turned on these discrepancies in the Courts below, their
Lordships are of opinion that they do not affect the present question one way or the
other.

11. Importance has further been attached to the persons named in the instrument of
1776 and to the minner in which they are referred to. It is expressed to be granted to
"Raja Subhao Singh, BibuUdit Singh, BabuGopal Singh, BabuLal Singh and others,
ghatwals of PerganaHundwa appertaining to Kharakpur." No doubt the senior of the
kinsmen is called Raja out of respect. The term does not mean that Sub-hao Singh was
an independent proprietor, while the other kinsmen were not but were ghatwals only;
the whole class are ghatwals of Hundwa, though varying in social importance. In the
operative part it is mandatory, though always in general terms - - "You should always
obey the Government," and so forth. The DowlmentionsSubhao, GopalLal and
Udwant, (who may really be Udit), in connection respectively with the
TaluqasKhindwa, Phuljheri, Kesri and Sarji, and it names six or seven other persons
whom the instrument itself does not name at all. These discrepancies, for the same
reason as that above stated, seem to their Lordships not to require further discussion.

12. In 1794 this instrument was perused and considered by Mr. Dickinson, the
Government officer then in charge of this district and he issued a perwana, which is
also relied on by the appellant as part of his title and in view of the fact that it purports
to be a substantive confirmatory grant, has throughout been accepted on both sides as
being one with the instrument of 1776 for purposes of construction of the title. It is in
the name of the East India Company. It is addressed to the Mutsaddis, present and
future, of Pergana, Hundwa, and ultimately directs them to "treat the said Pergana as a
mokurrari tenure," to "receive the fixed Jama of the said Pergana by regular
instalments each year from Raja Purundar Singh, Zemindar, and others"; and it adds,
"You shall not demand anything in excess nor shall you demand production of fresh
sanads every year."

13. The rest of this perwana consists of recitals of details and parcels and of words of
grant. It records that, since Captain Brown granted Hundwa, "old Zemindari of Raja
Subhao Singh," "as permanent Mukarrari" to him, Udit Singh, Gopal Singh, Lal
Singh, Bishun Singh, Fateh Singh, and other ghatwals of the said Pergunna," all these
persons except Gopal Singh have died, and Subhao Singh's nephew, Purandar Singh,
has been in possession of the shares of his uncle and also of Udit Singh and of Gopal
Singh, paying the Government revenue; while in the case of the others, sons in each
case have succeeded to fathers' shares. The perwana concludes: "Therefore, taking
into consideration their right of inheritance, so much of the said Pergana as formed the
share of Raja Subhao Singh, Zemindar, and of Udwant Singh and Gopal Singh,
ghatwals, is granted as before to Raja Purandar Singh, Zemindar, and so much of it as
belongs to Lal Singh has been granted to Budhan Singh, the share of Bishun Singh to
Manik Singh, the share of Fateh Singh to Rohan Singh and other ghatwals, and to their
descendants as permanent Mokurrari tenure." The rent, "excepting the Jagir lands of
Barkandases and archers," is Rs. 2,701. The obligations of the document of 1776, as
to looking after the villages and appearing before the Huzur with a force 307 strong,
are referred to, but whether for the purpose of reciting that these obligations have
hitherto been performed, or of directing the Mutsaddis to see that they are performed
in the future, is not, as a matter of drafting, quite clear. What is clear is that there is
nothing to take away from the earlier document in this respect and that, reading the
two instruments together, effect must be given to these provisions as part of their
terms. What, then, must that effect be?

14. The respondents' contention, briefly, is that these provisions are nothing more than
the expression of duties then currently required of Zemindars, and, whether required
or not, discharged by them in their own interests and in the interests of their ryots; that
the mention of ghatwals does not include. Subhao Singh or Purandar Singh
themselves; and that the "other" ghatwals mentioned do not include them in one class
but are ghatwals subordinate to them, whose duties are of earlier origin than either of
these instruments and are not based upon them. The language employed is relied upon
in support of the view that Hundwa was, before 1776, an independent Zemindari in the
family of Subhao Singh, held subject only to payment of Government revenue; that
such ghatwals as then existed were his shikmighatwals and that all that Captain Brown
and Mr. Dickinson did was to settle what eventually became the permanent revenue
payments due in respect of the whole estate and to signify this in an ordinary
settlement potta, confirmed by the later perwana. These contentions their Lordships
think unsound.

15. It may be advisable to consider generally the law relating to ghatwali tenures,
partly for the purpose of determining whether the construction adopted by their
Lordships is in any way inconsistent with that law, and partly for the purpose of
deciding the incidents which the law attaches to the form of tenure resulting from that
construction. In the SantalPerganas there are for practical purposes three classes of
ghatwali tenures, (a) Government ghatwalis created by the ruling power; (b)
Government ghatwalis, which since their creation and generally at the time of the
Permanent Settlement have been included in a Zemindari estate and formed into a unit
in its assessment; and (c) Zemindarighatwalis created by the Zemindar or his
predecessors and alienable with his consent. The second of these classes is really a
branch of the first. The matter may, however, be looked at broadly. In itself "ghatwal"
is a term meaning an office held by a particular person from time to time, who is
bound to the performance of its duties, with a consideration to be enjoyed in return by
the incumbent of the office. Within this meaning the utmost variety of conditions may
exist. There may be a mere personal contract of employment for wages, which take
the form of the use of land or an actual estate in land, heritable and perpetual, but
conditional upon services certain or services to be demanded. The office may be
public or private, important or the reverse. The ghatwal, the guard of the pass, may be
the bulwork of a whole country-side against invaders; he may be merely a sentry
against petty marauders; he may be no more than a kind of gamekeeper, protecting the
crops from the ravages of wild animals. Ghatwali duties may be divided into police
duties and quasi-military duties, though both classes have lost much of their
importance, and the latter in any strict form are but rarely rendered. Again, the duties
of the office may be such as demand personal discharge by the ghatwal and personal
competence for that discharge; they may, on the other hand, be such as can be
discharged vicariously, by the creation of shikmi tenures and by the appointment and
maintenance of a subordinate force, or they may be such as in their nature only require
to be provided for in bulk. It is plain that where a grant is forthcoming to a man and
his heirs as ghatwal, or is to be presumed to have been made though it may have since
been lost, personal performance of the ghatwali services is not essential so long as the
grantee is responsible for them and procures them to be rendered. ShibLal Singh v.
moorad khan 1.So much for the ghatwal. The superior, who appoints him, may also in
the varying circumstances of the organisation of Hindostan be the ruling power over
the country at large, the landholder responsible by custom for the maintenance of
security and order within his estates, or simply the private person, to whom the
maintenance of watchmen is, in the case of an extensive property, important enough to
require the creation of a regular office. It would not be easy to draw with precision the
distinction in the duties performable by him between a person who might properly be
called a ghatwal, and a person, who is only to be styled a chowkidar, though the legal
incidents of the respective positions are clearly different. At the other end of the scale
the terms "ghatwal" may be the honorable badge of a great proprietor, who in his days
was a veritable Warden of the Marches. In the minor senses of the word, '"ghatwal"
can hardly be said to cannotea tenure at all. A jaghir, as singed for the support and
remuneration of a ghatwal, may be no more than wages in kind, arising from the use
of a plot of land customarily in the occupation of the ghatwal for the time being and in
such a case personal service by the employee and personal selection and appointment
by the employer may well be in every case essential incidents of the relationship.
Incompetence and misconduct on the part of the employee may be causes for removal
of the ghatwal and resumption of his holding Neelanund v. Surwansingh25 actual
appointment may be the necessary initiation and seal of his office; personal selection
may be whole basis of his service and mere family claims valueless in the matter. On
the other hand, there are great estates, whose proprietors are found holding them or
parts of them upon the terms of providing that ghatwali services shall be forthcoming,
either regularly or when required; services, which it is impossible for the proprietor
himself to render in his own person, and which become possible to him and to those to
whom he renders them simply by virtue of his possession of the lands thus granted. In
such cases the ghatwali tenure, even if not originally granted as heritable, easily
becomes so, and is commonly found on the death of an incumbent of the office to
descend to some member of his family, if not necessarily to the senior member. Thus
in Kharakpurghatwals have a perpetual hereditary tenure at a fixed JummaMunrunjun
v. Lelanund3A recognized right to be appointed ghatwal then takes the place of a
formal appointment; a recognized right in the superior to dismiss the ghatwal, if he is
no longer able and willing to render the service required by his tenure, and to appoint
another person to the office and the tenure of the lands then readily suffices to
maintain in perpetuity the incidents of the tenure. Women of rank have thus in some
instances come to be the recognised holders of ghatwali lands TekaetDoorgaPershad
Singh v. DoorgaKooeree 20 W. R. 154. The case of Rani Surbessuri occurred in 1783
in Kharakpur, and there are said to have been many such cases in Birbhum. A further
incident of such a tenure is the inalienability of the ghatwali lands, for it is obvious
that, if the whole lands were, alienated together at the choice of the ghatwal, he would
be in a position either to make his own alienee, possibly a person non-resident or unfit,
the ghatwal in succession to himself without the consent of his superior, or to deprive
himself of the whole of the means provided to enable the services to be rendered,
while himself retaining the office, whose obligations he could in consequence no
longer fulfil. The office cannot, except by special custom, grant or other arrangement
either run with lands or be severed from them. If the lands are alienated piecemeal -
and this must be involved in a right to alienate them at all - the same difficulty arises
in another form, for here, the office being indivisible, the question is to which of a
number of several purchasers of the lands is it to pass? Hurlal Singh v.
Gorawunsingh46 Sud.Dew. Rep. 170, Lelanundsingh v. govt. of Bengal 5Nilmonisingh
v. bakraNath, 6Leelanund v. Monoranjan7It is true that, so far as the superior is
concerned the inconveniences which would arise from allowing to the ghatwali a free
right of alienation may be met by reserving to the superior the right of withholding
consent to the alienation and thus defeating it, and this, coupled with the right to
appoint a successor to the office when it falls vacant, may in practice be sometimes all
the protection that the superior requires, but in two points affecting others it is
insufficient. First of all, when the ghatwal's office has become hereditary in his family,
alienation by him becomes impossible without infringing the right of his heirs; and
secondly, when the office is of a public character and held for the general good, it is
not enough to safeguard the superior's personal right of appointment but it is also
necessary to ensure that the lands and the services shall remain substantially
connected so that actual performance and not mere subordination may be assured and
this involves that the lands must remain impartible and inalienable. These
considerations peculiarly apply where the superior, by whom ghatwals are appointed
and of whom ghatwali lands are held, is the ruling power itself. In Mogul times such
grants were common; nor did their existence by any means come to an end with the
assumption of the Dewanny. Government ghatwali tenures have to some extent lost, or
appeared to lose, their identity by being included for revenue purposes in the
assessment of zemindary lands held by another and an independent proprietor, but the
question whether or not a given ghatwali tenure is a Government ghatwali tenure must
depend on the original grant, and unless the inclusion of the tenure in the assessment
of zemindary lands can be shown to have amounted to a release by the Government of
the ghatwali services or to a grant to a third party of the right to receive them, and of
the right to appoint the ghatwal, the tenure must remain, as it originally was, a
Government ghatwali tenure.

16. In view of these considerations, their Lordships think that there is nothing in the
general law to limit the interpretation of these documents according to their natural
sense, and they are unable to accept the argument, which the respondents base on the
special words employed in them. Even now the words "raja," " zemindari," "potta"
and " istemrarimokurrari" are not so strictly used as always to bear a precise meaning
or to refer invariably to cases, in which nothing is due but an annual Government
jumma for an absolute estate in lands. There is even less ground for so holding when
the documents under construction are nearly 150 years old. No authority is
forthcoming to show that a holding on the terms of both yielding a jumma and
rendering a quasi-military service may not be consistent with the use of these words.
Whether the service tenure is made a term or not, the holder might be a "zemindar" or
landholder and his holding be "perpetual" and "on fixed terms," and the position of
Subhao Singh depends not on his being styled "raja" and zemindar, which are general
expressions of consideration, but upon the conditions upon which he held the land.
Their Lordships are further unable to refer the obligation to furnish a force of 307 men
to any ordinary police administration of a Bengal zemindari. The force is precise and
it is large; it is military rather than civil; it does not vary according to the needs of the
moment, but is fixed at a standing number at all times, and attendance on the Huzur
with the whole force on demand is clearly beyond the scope of mere constabulary
duties. Effect must be given to these very special and express words, and although no
forfeiture is stated in case of non-compliance with them, it is only possible to do so by
regarding them as descriptive of an obligatory service tenure, whether of the ordinary
ghatwal type or not, and as the condition on which the ghatwal holds the lands.

17. It is, however, objected that the authority of Captain Brown and Mr. Dickinson to
make a grant on combined terms of revenue rental and quasi-military service is an
essential matter and that, as servants of the East India Company, then only exercising
the Dewanny of Bengal, Orissa and Behar, these officers would naturally be
concerned only with military action and with revenue revisions, and not with making
new grants of old estates. It may be conceded that there is no evidence to show that
the holder of this estate prior to 1776, who appears to have been Subhao Singh
himself, had conducted himself in any way that would have justified a forfeiture of it
nor is it shown that, if it were so, Captain Brown had any authority to forfeit the lands
into the Company's hands. He was acting under martial law, it is true, in a time of
acute disturbance in this region, but that of itself would not make him a person to
exercise such a power. The answer to these objections appears to their Lordships to be
this. It must be presumed that for anything done by Captain Brown in the purported
discharge of his functions some valid authority existed until the contrary is proved,
especially in a matter which was repeatedly brought before Government officials and
Courts of law within but a short time of the event without once so far as their
Lordships know, having any doubt cast upon its validity. It is very probable, though
not absolutely proved, that before 1776 some ghatwali tenure of these lands had
existed in this family for many years and that Captain Brown's policy was to confirm
what he found already existing. The grant to Subhao Singh of land previously held by
that proprietor would be explicable and regular, if Subhao Singh either surrendered
this estate, already held on a ghatwali tenure, in consideration of a regrant from the
new ruling power on satisfactory terms as to jumma and service, or if, being already
holder on joint rent and service terms, subject to revision at the will of the old ruling
power, which is known historically to have been common in Mogul times, he now
received and accepted from the new ruling power a grant, which fixed his rent and his
service favorably and for a term, which was expected to be, and soon actually became,
a term in perpetuity. It is probable enough that Subhao Singh would turn from the
setting to the rising sun and make new terms if he could. It is certain, from the map in
Mr. Macpherson's report and from the history of the district, that, if Hundwa was not a
ghatwali tenure, whatever be the time of its first creation, a singular and perilous gap
was left for no discoverable reason in the line of defences consisting of ghatwali
tenures, which was devised to protect the lands, known as the Daman-i-Koh. In
upholding old titles, of which the authentic records are still forthcoming, their
Lordships are justified in making all reasonable presumptions to explain them and
give them validity. Certainly in making either of these assumptions they are not
trespassing beyond the bounds either of actual probability or of legal precedent, and as
the alternative would be either to disregard express words and to leave them no force
at all or else to assume that what has been treated as a good title for over a century is
really an instance in which an official, unsuspecting and unsuspected, has out stepped
the limits of his unknown power, their Lordships have no hesitation in saying that the
grants of Captain Brown and Mr. Dickinson created a valid permanent service tenure
of the estate of Hundwa.

18. It must be conceded that from the time of Purandar Singh to the present day no
zemindar of the Hundwa estate has ever been personally appointed ghatwali either by
Government sanad or otherwise. The fact is common ground. It may be observed that,
if the fact be material in this case, the consequences would not be those contended for
by the respondents, for if a person enters into possession of a ghatwalijaghir, not
having obtained the appointment which is required to make him the lawful holder of it,
his possession is without title at all, and until by prescription or otherwise he acquires
a right which he is capable of alienating, a question which does not arise here, the lack
of a sanad of appointment is really the proof of the defect of his title, not of the
completeness of it. In this case, however, the grant of 1794 expressly makes the tenure
hereditary without any renewal of the appointment. It is a grant to the named persons
and their descendants, and the direction to the Mutsaddis is. "Nor shall you demand
production of fresh sanads every year." Nor is this inconsistent, as the respondents
contend, with the grant being a service grant at all. Their Lordships are unable,
however, to accept the argument that in this case the lands are merely subjected to a
pecuniary charge, so that the personality or the appointment of the holder would be of
no importance. The tenure-holder has to raise and maintain the force, not merely to
pay for it. Whatever may be the other incidents, it is clear that these grants impose on
him the duty of providing a specific armed force and of attending with it upon the
competent Goverment officers whenever this service is required of him. What can this
be but a service tenure?

19. Again, it is objected that true heritability is inconsistent with a ghatwali tenure
when the office is of a personal character. A jaghir may, it is true, be held by a ghatwal
on the terms of personal employment and service of the strictest kind and in the most
complete subordination. In such a case selection and apointment are the natural
commencement of the service, and its determination in fact involves the determination
of this highly personal tenure. Where everything depends on personal qualifications
and exertions a heritable tenure is out of place. On the other hand, services may be
due in bulk and the obligation of the ghatwal may consist, not in personal
guardianship of a particular post, but in providing the service of others who are
competent to discharge the services in person. The obligation to embody and keep up
an armed force of 300 men with an appropriate staff of officers is pre-eminently an
obligation of this kind. It is personal in that the grantee under this tenure is himself
bound to the provision of this force from time to time and is not merely chargeable in
respect of the expense, or bound to make a contribution to the expense of forces
embodied and kept on foot by others. It is personal in that the lands are granted upon
this tenure in order that out of their produce the obligation in question may be dis
charged by the grantee. It is, however, impersonal in that the very nature of the service
is rather one of purveyance than of arms. For this purpose the ghatwal must be a
person of property, and for that reason he is the grantee of lands as ghatwali lands ; but
he need not be himself a soldier or watchman, and for that reason also the lands,
though ghatwali lands, may descend to heirs without personal selection and
appointment, as is the case here. Since the tenure is a service tenure, the lands are
liable to forfeiture if the obligation of service is expressly repudiated, while the rights
of the ruling power are similarly sufficiently safeguarded by holding that the
succession of an heir incapable of rendering ever the vicarious service involved in the
provision of this armed force, might be treated as being in itself a ground of forfeiture
in the person of that successor, if not in the persons of the entire family, for it is what
might be called an anticipatory repudiation. It is enough to indicate this principle as an
answer to the argument that the absence of actual appointments and the presence in
the perwana of 1794 of an actual dispensation from periodic sanads are both fatal to
the existence of any true ghatwali tenure. It is not necessary to decide whether, and to
what extent, an appearance of personal unfitness in a particular heir would operate to
disable him from succession as ghatwal.

20. In view of the considerations above set out, their Lordships have arrived at the
following conclusions with regard to the construction and effect of the potta of 1776
and the sanad of 1794 :-

       (1) The instruments contain words of grant and purport to make grants on behalf
       of and in the name of the East India Company. They must be so interpreted, nor
       can this construction be defeated merely because there may be ground for
       thinking that the grantees were already holders of these lands under earlier
       grants or on customary service terms. The tenure is therefore a Government
       tenure. A similar construction was adopted by the High Court of Calcutta in
       Leelanud's Case.
       (2) As the grants are expressed to be istemrarimokurrari grants, and as in fact
       the lands have for generations descended in the family of the defendant from
       ancestor to heir, they are a perpetual and hereditary tenure. A similar conclusion
       was arrived at in M.N. Unjun Singh's case When a sanad of 1777 granted by
       Captain Brown in similar terms, was under construction.
       (3) The express obligation imposed on the grantees, as an integral part of the
       grant, to support a specified number of barkandases, and with them to attend the
       Huzur when required, shows that the tenure is a service tenure and is ghatwali
       in its nature.
       (4) A tenure so granted is inalienable and indivisible Hurlal Singh v. Jorawun
       Singh and cannot be sold in execution of a decree against the person of the
       incumbent of the office of ghatwal for the time being (see Nilmoni's case and
       JoykishenMookerjee v. Collector of East Burdwan, (5) Neither by the terms of
       the grant nor by the general law applying to such ghatwali tenures is an actual
       appointment of the next heir to be ghatwali in the room of his predecessor
       requisite, nor is actual performance of the stipulated ghatwali services from
       time to time necessary. Readiness and willingness to perform them when
       required may be inferred where there is no proof of any refusal to perform and
       where performance within a reasonable time, if required, is not shown to have
       become impossible.
21. At the last stage of this argument the respondents' counsel raised the further
contention that Hundwa is in any case locally in Kharakpur, and that, by a well
established local custom, now always recognised,Kharakpurghatwali lands are
alienable. They disclaimed any contention that a family custom existed, and put the
point solely as one of local custom. Their Lordships might well have refused to
entertain this contention, for it involves important considerations of fact as well as of
law, and it had not been determined or even discussed in the Courts in India. It was,
however, said to rest on a series of decisions of long standing, and their Lordships,
loth to appear to cast any doubt upon such authorities by refusing to take account of
them on the ground of a rule of procedure, have determined, under the circumstances,
to deal shortly with this contention.

22. The proposition that Hundwa is in Kharakpur must, in consequence of the
litigation of 1812 to 1819, to be mentioned hereafter, be now regarded as a purely
topographical statement. What the area or the site known as Kharakpur may be is a
matter for evidence, and no evidence was given about it. It is further a matter as to
which the Courts in Bengal have original means of knowledge which their Lordships
do not possess; and for this reason the fact that the contention was never submitted to
those Courts becomes doubly significant. If it is well founded, the whole of the
discussions and proofs, which led to two long hearings and two elaborate judgments,
would have been obviated in limine, for the whole point of the defence disappeared, if
Hundwa was by binding custom and by decisions recognising that custom alienable
tenure. If such a crucial point was never made, it was probably because the local
knowledge of the Courts themselves would have compelled them to overrule the point
as soon as stated.
23. A local custom is one binding on all persons in the local area within which it
prevails, and differs entirely from a family custom, binding only on members of the
family as to rules of descent and so forth; Rajkishen v. Ramjoy,8 It is one which must
be pleaded with particularity as to the local limits of the area of which it is alleged to
be the custom and the evidence must be evidence as to the prevalence of the custom in
that area; Marquis of Anglesey v. Lord Hatherton9Hiranath v. Bura Narayan 9Except
so far as analogy may serve to explain anything that is in itself obscure, the customs of
other localities are not relevant and such rules in cases relating to Birbhum or Pachete
are not in point.

24. It has been long held that certain ghatwali tenures in this district are alienable with
the consent of the Zemindar. This was decided after an elaborate examination of the
evidence in Kali Prasad v. Anund Roy, by their Lordships' Board. This authority has
repeatedly been followed and applied in India and so far as the reports show, without
proof of the custom being required over again. What, however, does this amount to ?
Their Lordships Board pointed out that ghatwali tenures are generally inalienable but
that evidence may be given to show that in a certain district they are by local custom
subject to special incidents in this regard. Such evidence was forthcoming and was to
the effect that many transfers had taken place in Kharakpur without being questioned
or questionable provided that the Zemindar of Kharakpur expressly assented to and
accepted the transferee as his ghatwali or indicated an implied acceptance by an
absence of objection after twelve years' notice of the transfer. This evidence satisfied
both the High Court and the Judicial Committee. It is plain that the custom depended
on the proof and as the tenure in question was one in the Zemindari of Kharakpur and
under its Zemindar, it could have no reference to ghatwali tenures not under him or
forming part of his Zemindari. The personal intervention or omission to intervene on
the part of the Zemindar could not be material unless the ghatwali tenure, to which it
applies, was one as to which the Zemindar had the right to appoint to the office of
ghatwali, and this view is confirmed by the further observations of Lord Fitzgerald,
that the conclusion arrived at is encouraged by the fact that the purposes for which the
Kharakpurghatwals were originally appointed no longer existed. In sundry cases, both
previously and subsequently decided in India in conformity with this decision, the
ghatwali lands appear always to have been held under the Zemindar of Kharakpur;
e.g., Doorgabutty's case, Sutherland's Rep., 1864 p. 249. The explanation of the
customary rule that the Zemindar's consent is necessary, is said, in Kartick'S case,
S.D.A. Rep. 1853. p. 900, which was followed in DOORGABUTTY'S case (Supra),
to be that the Zemindar is responsible to Government if the ghatwal's services, which
are public services, are not performed, and so ought in self-defence to have a veto on
any transfer. If this is so it is an additional reason for saying that, until the Government
releases or abolishes the services in some effective and lawful manner, the
tenureholder remains bound and holds the lands without power of alienation see : too
NILMONI'S case (Supra).

25. With regard to Hundwa this is not so. All that can be said of Ram Chandra
Marwari v. Rani Keshobati Kumari,10is, that, if Udit Narayan Singh then concerned
was the appellant's father, as may be the case, no one seems to have thought it
advisable on that occasion to rely on the inalienability of his tenure. Nothing,
therefore, comes of it. Their Lordships see no ground for thinking that the custom of
Kharakpur, relied on by the respondents' counsel, has any application to ghatwali
tenures, which, like Hundwa, are independent of the Kharakpurzemindari, even
though they may be not far off Kharakpur.

26. The ultimate conclusion of the High Court was that "the property mortgaged by
the late Udit Narayan Singh was a ghatwali tenure not held by him as a ghatwali," and
it was on this ground that they decided the suit in favor of the mortgagee. The
proposition requires somewhat close examination.

27. It is true that Udit Singh neither himself rendered the services prescribed in
Captain Brown's potta, nor appeared to be conscious of any legal restrictions upon his
power of alienating the lands of Hundwa. In the first respect he differs little, if at all,
from the position of his predecessors after the time of Purandar Singh; in the latter he
certainly stands alone, for he was the spendthrift of the family and purported to
dissipate the estate of Hundwa by all forms of alienation, nor in his life-time did
anyone venture to say him nay. As, however, there is no question here of any actual
assent being given either by his family or by the Government, and as the whole matter
in dispute is whether his alienation's were valid, the fact, that in other transactions,
besides the present, he purported to alienate and appeared to believe in his own power
to do so, proves nothing. What is singular is that from the time of Purandar Singh the
officials of the ruling Power never required that the services in question should be
rendered, and for long periods and in important connections even seem to have been
unaware that any obligation of the kind existed.

28. The first matter to be cleared up is the relation of Hundwa to Kharakpur. As early
as 1781 a perwana, signed by Mr. Hastings as Governor-General in Council, records
that the duties of Zemindar of the PerganaKharakpur have, been conferred on Raja
Kadir Ali, and includes, at a revenue payment of Rs. 2,800, Hundwa, among the
estates, to which the perwana applies. A Potta and Kabuliyat of 1796 are next
forthcoming, which purport to include in Raja Kadir Ali's Zemindari of Kharakpur the
PerganaHundwa. To these documents, however, and to the transactions, whatever they
were, out of which they arose, no ancestor of the present appellant was a party, and
although the East India Company itself is a party, still, as they relate only to the
jumma payable and to other ordinary obligations of zemindars, and as the jumma for
Hundwa was in fact paid through the Raja of Kharakpur, these documents do not
greatly advance matters. What is of more significance is that in 1802 the result of the
Permanent Settlement for Hundwa was registered as involving the annual payment of
a jumma of Rs. 2,701 under Captain Brown's potta; that Purandar Singh is then
recorded as the present possessor, personal and not hereditary : and that in the
"Remark" column it is stated that the potta was "subject to ghatwali." while the
perwana of 1794 is recorded as a sanad, under which the persons named, other than
Purandar Singh, were in possession as heirs of their father.

29. Between 1809 and 1819 protracted litigation was carried on, between Kadir Ali,
then Zemindar of the KharakpurMahals, and the family of Purandar Singh, recently
deceased, with reference to the estate of Hundwa. Kadir Ali asserted a right to
nominate the ghatwal, who was to succeed to Purandar Singh, a claim which
eventually Jhabhan Singh disputed, asserting that he was mokuraridar of
PerganaHundwa with herritable rights. Though he was also described as
malikzemindar, this is hot enough in such a content to show that he alleged that his
estate was not a ghatwali tenure. In order to inform itself as to the ownership of the
disputed Taluqas, the Court referred it to the Collector of the District to report, who
the Zemindar of the lands in litigation really was, although this would appear to have
been one of the very questions which arose for the determination of the Court itself.
This report, which is now not forthcoming, was in favor of the Raja of Kharakpur.
Nevertheless, when the case was heard in the Civil Court of Bhagalpore in 1812 and
on appeal in the Court at Murshidabad in 1819, both judgments were in favor of
Jhabhan Singh, the ancestor of the present appellant. Accordingly, no further appeal
being taken, the claim of the Raja of Kharakpur to be entitled to appoint the ghatwali
of Hundwa, whenever a vacancy occurred, was finally dismissed. It is not necessary to
consider how far, if at all, these judgments, which as between the holders of the two
estates are res judicata, would technically preclude the present respondents, as
mortgagees from one of the holders of Hundwa, from reopening this question as
against their mortgagor's heir, for in fact no attempt has been made to do so, and in no
event after the lapse of a century would their Lordships have been disposed to
entertain or to make, criticisms upon judgments, arrived at upon ampler documentary
materials than those now available, which have for long laid at rest a claim once so
keenly advocated.

30. These decisions, which separate Kharakpur from Hundwa so far as this appeal is
concerned, have a profound effect on the position of Hundwa. Whatever else Hundwa
may be now it is not, nor ever was, for present purposes a ghatwali estate under
Kharakpur and its rajas. Comment is, however, justly made that, with the documents
of 1776 and 1794 before them, neither Court pointed out nor apparently was invited to
hold that, as they granted Hundwa to Subhao Singh and to Purandar Singh on the
terms of services to be rendered to the Government, the holders of Hundwa were
therefore Government ghatwalis and could not be the ghatwalis of the Raja of
Kharakpur. Furthermore, as has been already stated, the reports relating to the
SantalPerganas generally and to Kharakpur and Hundwa in particular, nowhere
mention Hundwa as an original and direct Government ghatwali. Thus Mr. Sutherland
in 1819 records the history of the estate of Hundwa, but nowhere suggests that the
holders owed military service to the Ruling Power. In 1833 a Special Commissioner,
Mr. Ward, deals with the relations of the Rajas of Kharakpur and Hundwa from Mogul
times downwards and refers in some detail to the potta of 1776, to the perwana of
1794 and to the litigation above Discussed, and records his conclusion thus :-

       24. Under the foregoing history of Hundwa the tenure under which the jagir is
       held can only be considered ghatwali subject to the payment of a certain fixed
       rent and other conditions of service, but claimed by Jhuban Singh as a
       Zemindari for which no revenue has been paid since 1828 "
31. All that can be said of these and similar passages from other and later reports is
this. The writers were dealing with large tracts of country and were chiefly concerned
with questions strictly affecting the Government revenue. Ghatwali services, as
services to be actually called for and performed, were not in question. Their sources of
information were largely hearsay. Dr. Buchanan for example records that he was only
told the family account of Hundwa matters and did not hear the other side. It is
doubtful if they had the opportunity of seeing the actual documents of 1776 and 1794,
but if they had, the interest of the Government in the service of the barkandases of
Hundwa was so inconsiderable that it is small wonder if the somewhat complex
language of those instruments did not deeply engage their attention. High as the
reputation of these reports for care and research deservedly stands, there can be
nothing surprising if an error is made in the account given of particular rights
connected with a single estate, where the value of those rights to the Government must
be trivial and on the whole problematical, and where their relevancy, as this case
shows, chiefly regards the private rights of heirs as against the incumbent for the time
being. If, in the result, their conclusions were erroneous, they can fortunately, be
corrected by attaching the real weight to the potta and the sanad and upholding the
rights as disclosed therein, without further considering the mistaken accounts of them
given by some officials and the pardonable ignorance of them displayed by others.
Nor must it be forgotten that the entry in the register of permanent mokurrari right in
1802 is a precise statement to the contrary and rests on a precise reference to the
material documents of title, and that the entries in the Record of Rights of 1874-79
and 1898-1907 are not inconsistent, to say the least of it, with the same state of things
: (see observations in the cases reported in 3 W. R. 84 and 13 B. L. R. 124).

32. The High Court appears to have attached little or no importance to the express
direction in the sanad of 1794 that "production of fresh sanads every year is not to be
demanded," and dwells on the fact that since the death of Purandar Singh no proprietor
of Hundwa had applied for a renewal of the IstemrariMokurrarighatwali grant or had
been required to do so. For a hundred years no muchilka or kabuliyat, undertaking
military service, had been given. No ghatwal of Hundwa had been appointed by
Government. Udit Narayan Singh "was merely de facto holder, without licence from
the ruling Power of the lands attached to the post of ghatwal," and it was as such that
he mortgaged these lands to the plaintiffs. His son, who succeeds by inheritance,
cannot, it is concluded, impugn his title or ask that it should be investigated, for, the
ruling power not being represented, its permanent title cannot be gone into.

33. It appears to their Lordships that, as this decision does not purport to rest on
prescription or adverse possession of the lands by Udit Narayan or his predecessors
against the Government, it must be rested on legal assumption that, if during a
sufficiently long period the incumbent of the office of ghatwal does not happen to be
called on to render the services which he is bound to render when required, the quality
and incidents of his tenure of ghatwali lands change, at any rate so long as this
abeyance of the services lasts and that he becomes, to the prejudice of his heirs - who
are, be it said, heirs of ghatwali lands with the advantages as well as the disadvantages
attaching thereto- a full mokurrariistemrari proprietor for the time being. This seems to
be involved in the argument, on which Roe, J., bases his conclusion, for he propounds
this dilemma. If the defendant's right to succeed was a right to succeed to UditSinghs
interest as ghatwal, there was nothing to succeed to, for Uditsingh, if ghatwal at all,
held nothing heritable in virtue of that office. If, on the other hand, the right to succeed
was a right to succeed to the right and interest, which Udit Singh then had even
protempore, that right was one which Udit Singh could and did encumber in favor of
the plaintiffs, and since the defendant is not in a position to discharge the
encumbrance, he must suffer the legal consequences and submit to have these lands
alienated from him. In truth the defendant is not asking, as the learned Judge seems to
have thought, to have the Government's title investigated. He is relying on his own
interest in the tenure of the Hundwa estate, which on the true construction of the
original grants bears the character of a ghatwali tenure with its legal incidents. He
does not set up a justerti; his case is not that there is an interest outstanding in a
stranger to the suit - the Government, to wit - in which he seeks some defence against
a decree for sale against himself, but he alleges a title in himself to succeed his father
in the enjoyment of lands which, as against himself, his father had held without any
right to encumber them in favor of strangers. This, and this alone, is the relevancy in
the present suit of the circumstance that the lands are held on ghatwali tenure, for the
ghatwali services themselves have long been so insignificant that little remains in the
tenure, except potentially, beyond the quality of being heritable, impartible and
inalienable.

34. To terminate the ghatwali character of the lands it seems to their Lordships that it
is necessary to find something done or omitted to be done on the part of the
Government, as the grantors, which would have the legal effect of a surrender and re-
grant of the lands on new terms, or, at any rate, of a release of the right to appoint the
ghatwal and call for the performance of the services. Nothing of this sort, at any rate,
is shown. The burden of proof is on the mortgagees, and the Government not having
been made a party, such proof may even have been for the time being inadmissible.
Even the corps of barkandases was still in existence within living memory, whether in
embryo or in dissolution does not matter. Not to mention the dubious exploits, of this
force in the Santal rebellion of 1855, when with their bows and arrows they were said
to have slain 300 rebels at the cost of three casualties, there was called as a witness a
veteran member of the force, who still held a Jaghir as such and down to twenty years
before had continued to receive from the raja presents of money on the occasion of
weddings in his family. The trial Judge does not deal with this evidence at all, though
he comments naturally and adversely on the supposed battle, by which the force of
barkandases quelled the revolt of the Santals.
35. As is well known, the estate of Kharakpur was the subject of long and complicated
litigation arising out of claims to reassess or to resume ghatwali lands where, as was
no doubt generally the case, ghatwali services had ceased to be of practical
importance. Long before 1765 ghatwali tenures under the Zemindar of Kharakpur had
been created by the various holders of those lands for their own purposes, and as late
as 1770-1785 Mr. Cleveland, who managed the estate during the minority of Kadir
Ali, followed the same policy. The lands thus made the subject of ghatwali tenure
were included in the permanent settlement of the whole Kharakpur estate in 1796, and
the Government of Bengal sought long afterwards to reassess these lands to a further
jumma beyond that fixed in 1796, on the ground that local zemindars had ceased to be
called on to render police services, since the Government had itself undertaken the
necessary Thanadariorganisation (Regulations 49 and 50 of 1792). The claim was
finally dismissed by their Lordships' Board in 1855 [Raja Lelanund v. The
Government of Bengal (Supra)]. Now there is a clear distinction between the ase
where the Government thinks fit itself to perform duties theretofore performed by
ghatwals and the case where the ghatwali service is formally abolished or discharged
(per Sir Barnes Peacock, I. A. Sup., 185; and see the analogous case as to a palayam
in Madras. [MalayandiAppasamiNaicker v. MidnapurZemindari Go.,11In the
Kharakpur district it does not appear that there has been any formal termination by
law of ghatwali public services apart from the above-mentioned composition INTER
PARTES with the Zemindar of Kharakpur.

36. It is true that in Appendix XVII to Mr. Macpherson's Report on the
SantalPerganas, which contains extracts from Dr. Buchanan's MSS., there occurs this
passage: "By far the greater part of Hundwa is still in the possession of a Kshetauri
family, although it pays to the Raja of KharakpurRs. 2,372 a year; but it has been
entirely exempted from military service." What foundation there may have been for
this statement remains unknown. It may be a lax allusion to the Regulations of 1792.
At any rate, Roe, J., records, "To this day no outpost has been set up in
PerganaHundwa, which is still a non-police tract." After 1855 there followed
numerous suits, in which Raja Lelanundendeavoured to resume his shikmighatwali
lands, alleging that he was entitled to disclaim the services and thereupon to oust the
ghatwal, and also that by his agreement of compromise with the Government for an
annual money payment in lieu of further services the ground for the appointment of
ghatwals and for the tenure of ghatwali lands had disappeared. These attempts failed,
and it was held that he could not renounce the services without the consent of
Government or some legislative or administrative extinction of them [KooldeepNarain
v. Govt. of India, and see I. A. Sup. 181. Munrunjun's case, (Supra) High Court, and
13 B.L.R. 124, P.C. (Supra).] As long as they were ready and willing to render
services if required, the Zemindar could not put an end to the ghatwal's services,
whether required or not, even by compromising with the Government and substituting
a rent for the former services, for, as against the tenure-holders, this was Res Inter
AliosActa (see I. A. Sup. 185)

37. Although none of these decisions governs the present case, they involve the
principle that where a tenure is created, as distinct from a mere personal employment,
the tenure-holder has such an interest in the rendering of the services as entitles him to
such benefit of the tenure as accrues from his readiness and willingness to perform his
obligation. The service is not a mere burden on the land; it constitutes a personal right
in so far as the land held on that condition is concerned, and a personal obligation in
so far as concerns the grantor, which, being in the nature of a public obligation, cannot
be waived by the grantor for his own advantage, nor, being in the nature of a title to
the lands, can be relegated to desuetude for the mere disadvantage of the ghatwal. The
truth is that, where rights can once be shown to have been established and continue to
be vested in living persons, obsolescence and desuetude are popular expressions rather
than solid legal grounds for refusing a continuing recognition to the right as originally
established.

38. One circumstance remains to be mentioned, if only for the purpose of pointing out
that no definite conclusion can be drawn from it one way or the other. For a time the
revenue assessment on the Hundwa lands was paid to the Government direct, but now
and for a century or so past - in fact ever since the time of the permanent settlement - -
it has been paid to the Zemindar of Kharakpur by the Hundwa proprietors, he being
assessed to the revenue on the lands both of his own Zemindari and on those of
Hundwa too, and paying the revenue contribution direct in respect of both. As it is
now settled that Hundwa is not an under-tenure to Kharakpur, one obvious inference
from these facts is finally negatived. The other, that there is a direct liability of
Hundwa for revenue payments, which are for convenience collected indirectly, is, after
all, immaterial when once it has been decided that the ghatwali tenure of Hundwa, as
it now exists, rests on grants made directly by the East India Company. The
explanation suggested for the bare fact is that in disturbed times the transport of
treasure through the jungles from Lagwa in Hundwa, to Bhagulpore was precarious,
but as it is not shown to have been any safer from Kharakpur to Bhagulpore, and as in
any case Hundwa's money must have run the risks of transport to Kharakpur, the
explanation is unconvincing. Fortunately, it is also academic.
39. In the result the appeal succeeds. The judgments of the High Court and of the
Subordinate Judge in favor of the plaintiff-mortgagees ought to be set aside and their
action should be dismissed with costs both here and in both Courts below. There is a
cross-appeal by them consolidated with the defendant's main appeal, which refers to
the interest to be allowed to them upon a decree, if any, in their favor, and this cross-
appeal fails and should be dismissed with costs.
40. Their Lordships will humbly advise His Majesty to the above effect.
Appeal allowed.
Cases Referred.
1.[1854-57] 6 M. I. A. 101 - 4 W. R. P. C.. 77. (P.C.)
2. [1881 - 82] 9 I. A. 104 - 9 Cal. 187 (P.C.),
3. 13 B. L. R. 124 - I.A. Sup. 181 (P.C.).
4. [1863-66] 10 M. I. A. 16-1 W.R.P.C. 26 (P.C.)
5. [1875-76] 1 Cal. 186-19 W.R. 8 (P. C.).
6. B.L.R. 274-17 W.R. 316.
7. [1888] 15 Cal. 471-15 I. A. 18-5 Sar. 121. (P. C.)
8. [1909] 36 Cal. 840-36 I. A, 85- 10 C. L. J. 1-6 A. L. J. 617- 6 M.L.T, 1-11 Bom.
L.R. 765- 13 C. W.N. 1102-19 M.L.J. 419- 2 I.C. 935. (P. C.)
9. 10 M. and W. 218-12 L.J, Ex. 57,
10. 1922 P.C 154-44 Mad. 575- 48 I.A. 100 - 1921 M.W.N. 352 - 40 M.L.J. 537- 29
M.L.T. 383 - 14 L.W. 49 - 34 C L.J. 6 - 20 A.L.J. 393-26 C.W.N. 106 - 60 I.C. 953
(P.C.)].
11. [1871-72] 14 M.I.A. 247- 11 B.L. R.71 (P.C.)