Sardar Govindrao & Ors. v. State of Madhya Pradesh & Ors.

Judgment

The Judgment of the Court was delivered by SEN, J. This appeal by certificate is directed against the judgment and order of the Madhya Pradesh High Court dated '· March 10, 1970, by which ,the High Coutt declined to interfere with an order of the State Government. of Madhya Pradesh dated September 9, 1966 disallowing the appellant's claim to the grant of money or pension under cl. (ii) of sub-s. (3) of s. 5 of the , Central Provinces and Berar Revocation of Land Rev~nue Exemptions Act, 1948 (for short 'the Act') oh the ground that they a.re· noi entitled to the· grant of such money or pension not being 'the descendants of a former Ruling Chief' in terms thereof. After the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948 was brought into force, the appellants who !ield estates in the districts of Hoshangabad and Nimar on favourable terms as Jagirdar's Muafidars and Ubaridars enjoyed exemption from payment of land revenue amounting to an aggregate, of Rs. 27,895.05p. per annum, made applications to the Deputy • Commissioners of Hoshangabad and Nimar claiming that the members of the Bhuskute family of Timarni to whjch they belonged were the descendants of a former Ruling Chief and therefore were ,,[// entitled to ·a substantial grant of money or pension for their suitahle. maintenance in terms ·of cl.

(ii) of sub-s. (3) of s. 5 of the Act. It was alleged that although their ancestors had acquired the rights of a Ruling Chief by virtue of the. sanads granted by the Peshwas and repognized by the Scindias and were all along treated as such even by the British, they were wrongly recorded as Jagirdars of Timarni in the record of rights which was DO evidence of their real status. The applications were forwarded by the respective Depaty Commissioners to the State Government of Madhya Pradesh. The State Government, by its order dated May 13, 1955, rejected their prayer holding th~t t!:tey were not &AllbAll GoVJNbitAo v. M.P. STATE (Sen, J.) 'I" • entitled to ~he grant of such amount or pension not being the descendants of a former Rulin~ Chief within the meaning of cl.' (ii) ofsub-s. (3) of s. 5 of the Act. A Full Bench of the Madhya Prade$h High Court by its 'judgment dated April 20, 1959 declined to interfere on the ground that \he proceedings under sub-s. (3) of s.

5 qf the Act could not be said to be judical or quasi-judicfal in natute as the use of the word "may" in sub-s. (3) of s. 5· of the Act)nade 'the grant of money or pension in the discretion of the Sta~ i3overnment. Disagreeing with the High Court, this Court in Saidar Govindrao & Ors. v. The State of Madhya Pradesh(') held that ~'e word "may" used in sub-s. (3) of s. 5 must, in the context, be · constrned to have a compulsive force and therefore on the existence of the condition precedent, the gran~ o( money or pension became .obligatory on the Government notwithstanding that in sub-s. (2) the Gov,ernment had power to pass such orders as it thought fit. It observed that in passing orders bn the, applications made by the apellants the State Go~ernment had to act in a' quasi-jtiqicial manner: The appellants therefore had ~be given an opportunity to state their case ·and were also ~ntitled to know why their claim had been rejected.

In compliance with the directions issued by thi~ Court in Govindrao' s case, supra, the Slate Government afforded th.e appellants an opportunity of hearing on August 6, 1966 to subs- . tantiate their claim for grant of money or pension under cl. (ii) of sub-s. (3)·of s. 5 of the Act on the ground that they were ithe descendants of a former Ruling Chief in terms of the section. The State Government in the impugned order specifically mentions that 'the appellants mainly based their claim only on the sanad issued during. the regime of Chhatrapati Shahu in <:>..J.177 A.D.", that is, granted by the Peshwa Madhavrao by w4ich their ancesto; Ramchandra Bulla! was granted the jagir of Timarni. On a consttuction of the document, the State . Government held that the sanad did not confer on the grantee the powers of a Ruling Chief.

It observed that the later grants by the Peshwas referred to the ancest9rs of the,appellants as sur-mandloi and sur-kanungo and not as a Ruling Chief" and the grants were in the nature of inams being emoluments appurtenant to their office. It further held!hat even after the suzerainty had· passed frpm the Peshwas to the Scindias, the grant of village Piplia and Bhaili to their ancestors by Daulatrao (I) (196S] 1 $.C.R. 678., 1'.' 8 SUPIUlME COURT IUiPOR'l'S ( 1 ~8~J j S.C.ll. Scindia by the two sanads of 1802 and 1804 referred to them as sur-mandloi and sur-kanungo and not as a Ruling Chief, and they were conferred no rights except that of a mere inamd11r. During the period of management of the tract by the British on behalf of the Scindias from the years 1844 to 1860, the jagir was continued as a muafi in perpetuity at the desire of the Scindias. As regards the period after the transfer of suzerainty the British never recognized the ancestors of the appellants to be a Ruling Chief.

In coming to that conclusion, it relied upon the decision of the Gover· nor General in Council conveyed by the letter of the Secretary to the Chief Commissioner .of Central Provinces dated March 3, 1865. Tho. State Government taking into consideration all these circumstances ~-- held that the ancestors of the appellants were no more than the watandars of small·· territory under the Peshwas and later under the Scindias and with· the transfer of sovereignty to the British, they lost their administrative powers and retained only their muafi. The State Government accordingly held that the appellants were not the descendants of a former Ruling Chief and therefore were not entitled to the grant of any amount or pension under cl. (ii) of sub-s. (3) of s. 5 qf the Act. On a consideration of the material on record; the High Court ' came•to the conclusion that there was no error apparent on the record to ·warrant interference with impugned order of the State Government.

According to the High Court, cl. (ii) of sub·s. (3) of s. 5 of the Act authorized the State Government to grant money or pension to those fami_lies alone whose ancestors had been granted remissions in land revenue, not on ac~ount of any services rendered ' by th~m but in consideration of the fact that they were deprived of their sovereign powers. It referred to the existence of a . feudal system known as the jagirdari system, prevalea t in the erst; •• l.J~ while.State of Gwalior, which was a legacy of the past, ~nder which the land revenue of a territory was assigned to a chief or a noble, known as the jagirdar, to supp_ort troops, police and for specified services.(') It observed that the Legislature has kept the distinc· tion in view while enacting cl. (ii) of sub-s. (3) of s. 5 of the Act.

After reterring to the material on record, it came to the same con· clusion as the State Government and held that the ancestors of the appellants never enjoyed the powers of a tributary or feudatory chief (I) V.P. Menon : _The Story of the Integration of the Indian States. p. 224. SARbAR GOVINDRAO v. M.P. s'rATE (Sen, J.) under the Peshwas or the Scindias that they held status·of sur·mandloi · and sur·kanungo and were holding the lands muafi in perpetuity, being in the nature of service grant. The conferral of rights in them by the Peshwas in favour of a loyal servant and instead of making a cash grant for the services rendered; they were permitted to collect their remuneration from a part of the revenue and maintain them· selves from the profits derived from the lands appurtenant to their office. It would thus appear that both the High Court as well as the State Government were of the · view that the appellants never enjoyed any status higher than lhat of a jagirdar.

The whole object and purpose of . the legislation, as reflected in the Preamble, is to revoke all prevalent exemptions from liability to pay land revenue. The Legislature felt that there was no justification for ·continuing the exemption from liability to pay land· revenue hitherto enjoyed causing loss to the public exchequer. · Except grants for £pecific purposes, t.he exemptions were mostly in consideration of loyalty and help rendered in the past and there was no reason why they should be allowed to be continued at present and cause unavoidable loss to the Revenue. Where such exemptions were granted for services and it was considered that the services should continue, or where it was considered necessary to continue in individual cases, certain grants made in the past, provision has been made \o do so by the award of money grants and pensions. Sub·s. ( 1) of·s. 3 provides : · "3. (I)

Every estate, mahal, village or lan·d to whatever purpose applied and wherever situate, which was heretofore exempted from payment of the whole or part of land revenue by special grant of, or contract with the Crown, or under the provision of any law or rule for the time being in force or in pursuance of any other instrument, shall, notwithstanding anything contained in any such gr~nt, contract, law, rule or instrument, be liable from the agricultural year 1948-49. (i) In the Central Provinces to the payment of land revenue equal to the amount of Kamil-Jama as revised by the Central Provinces Revision of the Land Revenue of Estates Act,' 1947, or by\the Central Provinces Revision of the Land Revenue of Mahals Act, 194 7, as the case may be." 136 , sUPRBMB COURt RBPO!lts t1982) :l S.C,tl. The Legislature however thought it fit to mitigate the rigour in certain specific cases by making a · provision in sub-s. (lJ of s. 5 that any person adversely affected by the provisions of s.

3 may apply to the Deputy Commissioner of the district for the award of a grant of money or pension, and sub-s. (2) thereof provides that the Deputy Commissioner shall forward the applica· tion to the State Government, which may pass such orders as it deems fit. Sub-s. (3) of s. S of the Act provides : "5 (3) The State Government may make ·a grant of money or _pension :- I for the maintenance or upkeep ·Of any religious, charitable -or public institution or service of a like nature, or, (ii) for a suitable maintenance of any family of a descen- , dan t from a former Ruling Chief." In sub-s. (4) of s. 5 of the Acl, any amount sanctioned by way of grant of money or pension under this section shall 6e a charge on the revenue of the State: The expression "Ruling Chief" has not been defined in the Act and must therefore be understood as in common parlance. The meaning of the word "Ruler" as given in Shorter Oxford English Dictionary, 3rd edn., vol. 2, p. 1867 is :

"one who, or that which, exercises rule, especially of supreme or sovereign kind". Normally the expression "Ruling Chief" connotes "a person who is endowed with the content of sovereignty and also has the attributes of a ~overeign". According to Blacks' Legal Dictionary, 5th edn., p. 1252 the legal conception of "sovereignty" is stat,ed thus : "The supreme, ab~cllute, and uncontrollable power by which any independent state is governed; supreme political authority, paramount control of. the constitution and frame of government and its administration; the selfsufficient source of political power from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state, which is sovereign and independent." i I §AllDAA ao\t1NDRAO v. M.P. STATE (Sen; J.)

"Sovereignty" means "supremacy in respect of power, 'dominion or rank; supreme dominion authority or rule". "Sovereignty" is the right to govern. The term "s1>vereignty" as applied to states implies "supreme, absolute, uncontrollable power by which any state is governed, and which resides within itself, whether residing in a single individual or a number of individuals; ot in the whole body of the people." Thus, sovereignty, according to its normlll legal connotation, is the supreme power which governs the body politic, or society which constitutes the state, and this power is independent of the particular form of government, whether monarchial, autocratic or democratic. Aci:ording to Laski in "A Grammar of Politics'', 1957 Reprint <(hap. II, p. 50 "The legal aspect of sovereignty is best examined by a statement of the form given to it by John Austin. -In every legal analysis of the State, he argued, it is first of alt necessary to discover in the given society that definite supe- . rior to which habitual obedience is rendered by the mass , of men. 'that superior must not itself obey any higher authority.

Whep we discover the authority which gives commands habitually obeyed, itself not receiving them, we have the sovereign power in the State. In an independent political community that sovereign is determinate and absolute. Its will is illimitable because, if it could not be constrained to act, it would cease to be supreme, since it would then be subject to the constraining power. Its will is indivisible because, if power over certain functions or persons is absolutely and irrevocably entrusted to a given body, the sovereign then ceases to enjoy universal supremacy and therefore ceases by definition to be sovereign." It is not necessary to enter into the concept of sovereignty, one of the most controversial ideas in political science and international law, which is closely related, to the diffic_ult concepts of 'State and Government, of independence 11nd democracy, except to touch upon the juristic character of the Indian State to discern the necessary attributes of sovereignty.

The Indian States were neither independent nor sovereign but subject to the paramountcy of the British Crown. Sir William Lee Warner, the acknowledged authority on Indian States, in his work , "The Native States of India; 1910" SUPREME COURT REPOR'rS tJ982) 5 S.C.R. characterizes them as "semi-sovereign". There . is no question that there was a paramount power in the British Crown, but perhaps it is better understood and not explained. The indivisibility of the sovereignty on which Austin insists, did not belong to the Indian system of sovereign states .. The degree of sovereignty exerc~ed by the· different rulers varied greatly as the areas under their dominion. The greater princes administered the internal affairs of their states with almost complete independence, having revenues and armies of their own, and the power of "life and death over their subjects.

At the other end of the scale were petty chiefs with a jurisdiction hardly higher than that of an ordinary magistrate and between. these extremes lay much gradation. The authority of. each· ruler was determined by treaties or engagements with the British Government or by practice that had grown up in the course of their relations with British India. The paramount power was with the British Crown and it had never parted with any of its prerogatives. As Sir Henry Maine said : "There may be found in India every shade and variety of sovereignty, but there is only one independent sovereign, the British Government. ..,The mode or degree in which sovereignty is distributed between the British Government and any Native State is always a question of fact which has to be separatcily decided in each case, and to which no general rules apply."

After the constitution of the Central Provinces in 1861 A.O., fifteen of the Zamindaris were considered to be of sufficient importance to warrant their being constituted Feudatory States. They ~ were : Nandgaon, Korea, Bastar, Raigarli, Sarguja, Khairagarh, ~ Kanker, Jashpur, Kawardha, Sarangarh, Udaipur, Sakti, Chhuikadan, Makrai and Changbhakar. These fifteen Feudatory States are specified i, the First Schedule to the Government of India Act, 1935. Timarui was not so listed in the.First Schedule as it was a Jagir and not a Feudatory State. The cardinal question on which the decision of the appeal must turn is whether the appellants are the descendants of a former Ruling Chief within the meaning of cl. (ii) of sub-s. (3) of s. 5 of the Act and are therefore entitled to the grant"of money or pension in ~Ali.bAli. oovtN}iwH. M.P. STATE (Sen, J.) terms of the section.

That depends on whether the ancestors of the appellants had acquired the attributes of sovereignty in relation to the jagir of Timarni granted by the Peshwa Madhavrao to two of their ancestors Naroo Bulla! and his brother Ramchandra Bullal's grandson Madhav Rao in 1717 A.D. As hereinbefore adumbrated, the appellants rested their case before the State Government on the sanad of the Peshwa in 1777 A;D. in respect of the jagir of Timarni. It does not appear from the impugne~ order of .the State Government that there is any error of jurisdiction in refusing to grant money or pension to the appellants under cl. (ii) of sub·s. (3) of s. 5 of the Act or any incorrect determination of the basic facts on their part in reaching the conclusion that the appellants' ancestors never exercised sovereign powers of a Ruling Chief in relation to the jagir of Timarni granted by the Peshwas and later confirmed by the Scindias and continued by the British at the request of the Scindias.

There can be no doubt that the ancestors of the appellants exercised considerable power and authority in the Narbada Valley at a certain period of time. The description of the family as 'extracted from the Hoshangabad Gazetteer, 1908, at pp. 97-98, reads : ''The most important Brahman family is that of the Bhuskute, who hold the Timarni Estate as well as considerable property in the Nimar District and in Holkar's terri- . t<)rY. The family is about I 50 years old and originaHy came from the Ratnagiri District in the Bombay Presidency. Its founders were the two brothers, Ramchaodra Balla! and Naro Balla!, who five generations ago, took service under the Peshwas. The brothers subjugated the c;ountry west of the Ganja!, which was. then called the Handia Sarkar, and forced the Makrai Raja to surrender half his territory. The sternness with which they repressed the wasting raids of the aboriginal tribes, earned them the name of Bhuskute, or "Chopper".

Kurhade or axemen, is another name by which the famjly is sometimes Known, and the axes which are said to have been the instruments of execution are still preserved at Khargaon and duly worshipped at the Dasahra festival by the Bhuskute and their retainers. Io reward for these services the brothers received in 1751 the hereditary offices of Sir Mandloi and Sir Kanungo in the Sarkars of Bijagarb and Handia, wit.h villages and tracts of ff 8 suRkEME COURT REPoilrs (1982] j S C.ll. . land rent-free, percentages on the revenue, a.nd rights of taxation. The Bhuskute proved as successful in peace as they had been in war, keeping the country in order, and settling culiivators from Khandesh in the uninhabited parts. In 1777, the Peshwa Madho Jl.ao gave them the fort of Timarni as a permanent jagir. Daul! Rao Sindhia subse· quently added two neighbouring villages and two more were acq.uired either _by force or gift from the Raja or Makrai, the five villages forming a semi-independent jagir.

Until the thirty years' settlement, the ki/edar or ".ho~er of the fort" at Timarni exercised jurisdiction in civil, criminal, revenue and other petty cases. These powers were-with- . drawn at sett1e111ent, but the estate continued to be held in jagir until the ~ettlement of 1891-96, when the villages1 were registered as muafi or .revenue-free, though the honorary title of jagirdar was still allowed to be retained." The history Qf the· matter goes to the middle of the 18th century. In 1742 A.D., the Peshwa. Balaji Bajirao infaded the lmcient kingdom of Garha-Mandla and exacted the tri.bute Q,f chauth or one-fourth of the revenue, amounting to 4 Iakhs of rupees. He took the fort and killed the Ruler of Garha-Mandla. From this · time the Mandia kingdom lay .at the mercy of the Marahtas. The Peshwa marched up the valley on his way from Burhanpur to attack Mandia and subdued Han.dia Paragana. (') The predatory Maratha troops plundered, burnt and looted . the entire Narbada valley. Col.

Sir W.H. Sleeman remarks that : "By this dreadful invasion of the Peshwa with his host of fqllowers, the whole country east of Jubbidpur was made waste and de-populate." The Mughal power was effectively driven out and we hear no more of a Muhammadan Governor of Harda Handia; but his place. was taken by the two brothers Naroo. Bulla! and. Ramchandra Bulla!, who were left by the Peshwa in charge of the Handia Sarkar, which had been rendered desolate in consequence of the inroads of · mara~ders and dacoits and were abounding in dense thick jungles. "(hey were the Amils of the Peshwa and held the Harda (I) Imperial Gazetteer of!ndia, Vpl. 13, 1908; p. 181. I SARDAR GOVINDRAO v. M.P. STATE (Sen, J.) Handia tract on Amanat system remitting to. the headquarters the whole collection, minus expendi\ure. It seems that they picked up a quarrel with' the Ruler of Makrai and as be was unable to make any resistance they forced him to sign· a treaty in 1750 A.D. giving up half his dominion.(')

They appeared to have dQJ1e loyal , and good services to the Peshwa by their administrative abilities in keeping the territory in good order and in settling cultivators from , Khandesh in the uninhabited parts by clearing the jungles. In reward for their loyal services, the two brothers, Naroo Bulla! and Ramch;mdra Bulla!, received in ! 75JA.D. a sanad from the Peshwa Balaji Bajirao by which they were conferred the title of "Bhuskute" and were made sur-mandloi and sur-kanungo. They were created watandars with the reservation of sur-deshmukhi in respect of 22 mahals in Sarkar ·Handia rent-free in perpetuity with right to retain 4% of the revenue: 2.5% on account of sur-mandloiship and J.5% · OD aCCOUDt Of SUf·kanungoship, and rights Of taxation .etc. By a separat~ sanad of 1751 A.D. the Peshwa appointed them sur-mandloi and sur-kanungo and created watandars in respect of 32 mahals in Sarkar :Bijagarh, with the reservation of surdeshmukhi, with the .same percentage of revenue and similar rights.

They appeared to have done good service to the Peshwas not only in shearing Ruler of Makrai but in keeping the country in good ordeyand in settling cultivators from Khandesh in the uninhabiteq parts. Both these sanads show that the Peshwa 11/ade the grants in recogniti9n of their loyal services. The documents' contain a recital more or less to the. effect that : "The two brothers presented themselves at the court of the Peshwa and petitioned for grant of watans as a reward as they had by thei.r military skill and courage and also by their administrative abilities cleared these tracts which had been rendered ·,desolate in consequence of in roads of marauders and dacoits and were abounding in dense thick. jungles, and made them safe for, habitation." 1 It appears that Naroo Bulla! and Ramchandra Bulla! remained (I) Sir Charles Elliot: Report on the Lane! Revenue System of the District of Fjoshan~abad, Central Provinces; 18~5. pp ..

28, '.19, the Amils or Governors of the Peswha at Handia till 1768 A,D.(1) and in the meanwhile they were granted by the Pesl:twa Balaji Bajirao in ams of villages Pokharni and Masangaon by two sanads· in 1754 A.D., and similar inams of village3 Dhupkaran, Underkuch and Samarda by three sanads of 1759 A.D. from. out of the 431 villages .surrendered by Ruler of Makrai. There was a twilight zone after 1750 A.O. and very little is known about the Harda Handia tract. It will presently be seen that the sanad of 1777 A.D. granted by Pesbwa Madhavrao and the subsequent sanads of 1798 and. 1800 A.O. granted by Peshwa Bajirao II on which the appellants strongly rely are of little or no assistance as by then the supremacy of the Pesbwa over the Narbada valley was on the decline. It' appears that the Narbada valley bad gone out of the control of the Peshwas by 1797 A.O. With the.fluctuating fortunes of the Peshwas the ancestors of the appellants were virtually denu· ded of all their powers.

The annihilation of the Maratha army at the hands of Ahmed Shah Durrani in the third battle of Panipat in 1761, followed by the premature death of the Peshwa Balaji Bajirao in the same year seemed to foreshadow the immediate dissolution of the Maratha empire. There followed a sudden revolt against the Maralha domination everywhere in Hindustan. The eclipse of the Maratha power naturally cast its . shadow on the Barda Handia tract; and the Ruler of Makrai thought to improve the occasion by driving out the Amils of the Peshwa out of Handia, but he was himself repulsed and ki)led by a force of Goshains. I In or.about 1750 A.O. Raghuji Bhonsle of Nagpur overran the whole range of hills from Gawilgarh to Mahadeo, and reduced the country east of Handia and south of the Narbada except the portion held by Bhopal. Hostilides between the Bhopal and i Nagpur rulers commenced in 1795 and lasted with little intermission for twenty years. Hosbangabad was in that year taken by the .

Nagpur troops; but was retaken in 1802 by Wazir Muhamad, (I} Sir Charles Elliot: Report on the Land Revenue System of the District of Hosbangahad Central Provincei: 1865, p. 35· I SARDAR GOVINDRAO ~. M.P .. STATE (Sen, J.) 743. the celebrated minister of Bhopal. The Bhopal dominions north · ~f the Narbada were finally lost to the Marathas in 1808. During these wars the Pindaris, first summoned· by Wazir Muhammad to his assistance, but afterwards deserting to his enemies, plundered the country impartially in all directions.. It is estimated that not a single village escaped being burnt once or twice during the fifteen years for which their depredations lasted, and·- the greater part of Sarkar Handia wa.s entirely depopulated. The Pindaris were extirpated in 1817; and in 1818 the portions of the district belonging to the Nagpur kingdom were ceded, under an agreement subsequently confirmed by the treaty of 1826.

In 1844 the Harda Hadia tr~ct was made over by the Scindia in part payment for the Gwalior Contingent, and in 1860 it was permanently transferred and became British territory:(') After the crushing .defeat of the Maratha army by Ahmed Shah Durrani in the third battle of Panipat in 1761 A. D. the · Pesbwas never crossed the Narbada valley. There was an intense st,ruggle between Mahadji Scindia and. Jaswantrao Holkar to gain ·control over the valley. In Central India, these two military leaders alternately held the pre-eminency. Mahadji Scindia utilised the fiction of his sovereignty created by the Treaty of Salbai in 1781 A.D. to gain his supremacy. By 1792 A.D. be had established bis ascendancy and his power in Northern India reached its meridian splendour . During this turbulant period, the Harda Handia tract passed through several hands. There is not much history attaching to it.(2)

It appears that between 1769 and 1782 A.D., Rudraji Khunderao was the Amil ?r Governor of the Harda Handia tract. Between ·· 1782 and 1789 A.D. he was succeeded in that office by Unna Sahib. From 1790 to 1796 A.D. Daulatrao Scindia made his servant Jaswantrao Sewajee the Amil or Kamavisdar of the Harda Handia tract. It appears that the Peshwas were successful in installing the appellants' ancestor Krishna Rao Ramchandra (I) Imperial Gazetteer of India, Vol. 13, 1908 p. 181, 182. (2) Sir Charles Elliot : Report on the Land Revenue System of the Distti\;t of fl:oshan~abad, p. 38. SUPllEMB COUllT llEPOllTS (1982) 3 S.C.ll. as his Amil from. 1797 .to 1799 A.D., but there was a break in 1800 A.D. In 1800 A.O., Balaji Chimanjee was the Gov~rnor. Between 1801 A.D. and 1802 A.D.1 the Scindia's servant Jaswantrao Sewajee again became his Governor.'(1). The reason for the change is apparent. In 1801 A.D. Jaswantrao Holkar appears to have burnt and plundered Harda but in 1803 A.D. Daulatrao Scindia halted at Handia for the whole rainy season.

In the same year i.e. in 1803 A.D. the territory was ceded by the Peshwa to the Scindia arid called by him as the Panch Mahal. Viewed in this liistorical perspective, the appellants' pretens.ions that their ancestors acquired the attributes of sovereignty in relation to the Jagir of Timarni, can hardly be accepted. It appears 'that the two of the ancestors of the appellants Naroo Bulla! and his brother Ramchandra Bullal's grandson Madhavrao presented themselves at the court of the Peshwa 'Madhavrao after having lost their position and power as sur-mandloi and surkanungo in Sarkar Handia and the Peshwa by the sanad of 1777 A.D. created them the Jagirdar of Timarni with permission to keep ' their gadhi at Timarni.

It recites that the Peshwas being pleased with their loyal services Md granted to them watans in Handia Sarkar and that they had renovated the gadhi i.e. fort at Timarni which was lying in a dilapidated state, and it was felt that there should be ~trong fortress for their use as a residence aq<I therefore they were t:ven the inam of village Timarni together with the gadhi with sur-deshmukhi in perpetuity. As already stated, the appellants' ncestor Krishnarao Ramachandra became the Amil or Governor of the Peshwa between I 797 and 1799' but he was again replaced by Da\llatrao Scindia's servant Jaswantrao Sewajee from 1801 to 1802. Thereafter, the Harda Handia passed under ,./ the control of the Scindias. ·. Much stress is however laid on the two sanads of 1798 1800 A.D. issued by the Peshwa Bajirao II for the submission that the ancestors of the appellants as Jagirdars of Timarni had acquired the status of a feudatory . chief in relation thereto.

We are afraid the contention cannot be accepied. By 1797lA.D. the (I) Sir Charles Elliot : Report on the Land Revenue Systems of the Dist• . rict of Hoshangabad, Central Provinces : 1865, p. 38 · · SARDAR cioVlNDARAO v. M.P. STATS (Sen, J.) . 145 Scindias had made an inroad into the Harda Handia tract and evidently the appellants'" ancestors found it difficult to administer the ternitory. The· s~ad of 1798 A.O. issued_ by the Peshwa Bajirao II permitted them to maintain Shibandi irregular soldiery• and sipahis equipped with chapdas (breast plates) armed with weapons~ for making recovery of taxes and cesses,. but the grant was with' the condition that in both the mahals the irregular soldiery in any case .should not exceed 100 in number without permission.

This only showed the grant ~f permission to keep a chowkidari fo~ce for collection of revenue. ·The subsequent sanad of 1800 · A.O. contains a recital that the ancestors of the appellants presented themselves at the court of the Peshwa Bajirao II and complained that the Scindia had deployed his own officers in Sarkar Handia and creaicd several muafidars, inamdars and saranjamis who were creating .obstructions· to the enjoyment of their rights and· on their protest they bad been ordered to get a confirmatory letter from the Peshwa. After the sovereignty had passed to th~ Scindias, Daulatrao Scindia by the two sanads of· l.802 and 1804 A.O. described the appellants' ancestors as sur-mandloi and sur-kanungo and granted ·them an· inam of villages· Piplia and Bhaili as · Nankar by way of maintenance, in recognition of t!Jeif loyal seryices:

The tenor, of all these sanads clearly shows th!lt the ancestors of the appellants were nothing mote than the Jagirdars of Timarni comprising qf Timarni and four · other villages viz. Piplia, Bhaili, Samarda, and Underkuch, and that they had never attained ihe status of a feudatory or'a tributary Ruling -Chief under the sovereignty of t.he PeshWas or the Scindias. After the power of the Scindias wa~ completely destroyed by the Britisli, Daulatrao Scindia signed the treaty of Sarje ,-\njengaotl on December 3,0, 18.03 by which he was ··obliged io give up his possessions between the Jamuna and the Ganges etc. i.e. including 'the Hard a Han di a tract known as ihe Pan ch Mahals, and soon tllereafter by the t,reaty of Burhanpur signed on February, 27, , 1804 he agreed to maintain a subsidiary force of the. British. to be paid for out of the revenues of the te1ritory ceded b)' him.

In 1844 the Barda Handia tract was mad.e over by the Scindia in part -pay- . men'! for the Gwalior contingent and in 1860 it wa.s permanently transferred and became British territory .. , ff' I 8 0 SUPREME COUU REPORTS 11982) 3 s.c.k. During the period of management of the territory by the British, the jagir of Timarni held by the ancestors of the appellants was continued at the request of the Scindia as would be clear from tbe • following letter from S~cretary to the Government of No!th-Western Provinces io the Secretary to the Southern Board of Revenue, North-Western Provinces dated July 24, 1860, which is in these terms: "I am directed to acknowledge the receipt of your letter No. 564, dated the 4th instant, submitting copies of a corresP,ondence, relative to the Temurnee Jageer, situated in the Pergunah of Harda in Hoshaogabad and held by the Bhooskutta, Kishen Row Madho, with the Boards recommendation, that the Jageer may be continued rent free in perpetuity.to the, family of the present incumbent, in' compliance with a request to that effect made by the Gwalfor Durbar, by whom it was originally granted.

2. In reply I am desired to intimate that the Lieutenant Governor is of opinion that, in a matter of this kind this Government is to a certain extent bound to confirm to the wishes of Maharaja Scindia, the country in which the rent free holding is situated 3. being not assigned-and not ceded to the British. As Maharaja·Scindia, had expressed a wish that the Jageer of Timurnee should be continued rent ·free in ' perpetuity to the Bhooskutta and as perpetuation seems to be in accordance with the 2nd of the revised rules for Barda 'Handia, dated 30th May 1834. His Honour has· been pleased to confirm the exemption of the Jageer in question from demand ·of revenue in < · perpetuity." On December 12, 1860, the Scindia ceded this territory to the British Government by a treaty of which Art. 3 is as follows :

"The Maharaja transfers to the British Government in full sovereignty the . wh1Jle of His Highness possession in the Pancli Mahals and to ~he south of the Fiver Nar0ada also Pargana Kumghar on dfe Betwa river on. the following conditions : (1) That for the lands transferred by His Highness, the British Gove.rnment shall give in exchange )ands of equ.a! v;ilu~ ~~l~u.l11teQ qq l)o!li skies on the pre~~ll! 11ross . SA!.DAR OOVINDRAO v. M.P. STATB (Sen, J.) revenue ..... (3) That each Government shall respect the conditions of exisiting leases until their expiry, and that in order that this may ·be made clear to all concerned, each Government .shall give to its . new subjects leases for the same terms of years and on the same conditions as those which they at present enjoy. (4)

That each Government shall give to its new subjects sanads in perpetuity for the rent-free lands-the jagirs the perquisites and the hereditary claims i.e. haqs and watans) which they enjoy at present under the other Government." After the cession of the territory by the Scindia in 1860, the Govetnment set it~elf· to inquire what were the estates transferred and what were the tenures. of their new subjects. This was necessary, first of all, becau8e as land of equal value elsewhere was to be ceded to the SciJJdia, it was necessary to note the exact value of what had been taken over, and also because undoubtedly the Government wished to give effect to the terms of the treaty above quoted and in particular to .the fourtli bead of cl. 3. There was Jong and detailed. inquiry by the Government as to the precise position of the Jagirdar of Timarni.

The inquiry dragged on for some years, but after a full investigation the Secretary to the Chief Commissioner of the Central Provinces by his Jetter dated March 4, 1865 conveyed'tbe decision of tile Governor General-in-Council to the effect : "The Governor·Geueral in-Council has been pleased to rule on the Chief Commissioner's 'recommendations that with the exception of the Chief, the Chief . of Makrai, all the Zamindars are to be regarded and treated as ordinary British subject. So far as the Chief Commissioner is aware there is nothing in the past history or present circumstances of any of the Pargunna Officials or Jamindars of Nemar which would in any way be entitled to exercise their estates any degree.of sovereign power.'' It would thus appear that the Briti~h Government never reco~oised the appellants' ancestor Krishnarao Madho, who like all other Zamindars and Jagirdars in the Central Provinces, were fayin~ claim to be recognised as a chieftain, to be a Ruling Chief.

After a soeverigo state has acquired territory, either by conquest or by cession under'treaty or by th~ o~upatioq. qf t~rritory II I SUPREME COURT ill!roRTS {I i)82) 3 S.C.R. theretofore unoccupied by the recognized Ruler o.r otherwise, an i.nhabitant of a territory can enforce in the municipal Courts only· such proprietary rights a·s the sovereign has conferred or recognized.· Even if a treaty of cession . stipulates that certain inhabitants shall enjoy certain rights, that gives them no rig)1t which they can so · enforce. The meaning of a general statement. in a proclamation or a (re~ty that existing rights would. be recogn\sed is that the Govern- . ment will recognize such right; as upon investigation it finds existed. The Government does not thereby renounce its right to recognize only. such titles as it considers should be recO'gnized nor confer upon the municipal courts any powers to adjudicate in the. matter.

Tbe principle is so well-settled that it is not necessary to burMn the judgment with many citations.~ • In Vajesingji Joravarsingji & Ors. v. Secretary of State for Indra· in Council l'l Lord Dunedin in a somewhat similar claim of a taluqdar of the Pan ch Mahal.s which was in the ~ominion of the Scindia ceded to the British Government by the treaty dated December 12, 1860, negatived the clahn of the. taluqdar to proprie· tary rights qbservlng : "When a territory is acquired by a sovereign state for. the first time that is an act of state. It matters not how the acquisition has been·. brought about. It may be by con: quest, it may be by cession following on treaty. it may be ; • by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the resnlt is the same. Any in· habitant o'f the territory can make good in t.he municipal courts established by the new sovereign only such rights as that sovereign has, through his, officers, recognized.

Such tights as he hac! under the rule of predecessors avail him nothing. Nay~ote, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts. The right to enfor<;e remaiqs only with the high contracting pariies. Tliis is made quite cl.ear by Lor<! Atkinson when, citing the Pongoland case of Cook v. Sprigg L.R. 42 IA 229, 268 he says : "It was held that the annexation of territory/made a)1 'act of state and that any obligation assured under the \l} L.R, (1923-24J' 51 !A 3.571 , Y . sAii.DAii ooviNDttAo v. i.i.i>. STATE (Sen, J.) 749 ' treaty with· the ceding state either to the sovereign or the individuals is not one wb1ch municipal Courts are autho· rize<Yto enforce.''

The burden of proving that after cessatio.n of the. territory by the Scindiils to the British by the treaty of December 12, 1860 the B. titish Goyernment acknowledged or recognize4 the existence of any Mverei~rlghts with the ancestors of the appellants w~s upon them and that burden they have f)liled to discharge. The historical material on which reliance is placed is not of much legal significance. {n the Central Provinces, the Zamindari or Jagirdari estates had nothing to do with Revenue-farming. They · were simply the estates of chiefs or \barons of the old Gond king· doms. ·when these kingdoms were conque;ed by the Mara\has, the main portions became the Khalsa, or directly managed lands; of the conquerors. ·The old, 'baronial'. territories being in the · hills on the outskirts of the Maratha domain, were not prdductive .of milch revenue; they were therefore iet alone, the chiefs being made to pay a· moderate tribute. T4is position was maintained )lllder the .British Governm.e11t.

The ·estates. were subjected 'to a general kind of Revenue Settfement, which varied in form (and in degree of detail) in different distJicts, and according 'to the rank and circumstances of the chief or landlord.(1) i The Settlement of 1863 by Sir Richard Temple, Chief Commis· sioner of .€entral Provinces recognised the Mlllg11zafs as virt11aliy landlords. The recognition of proprietary rights was absolute and unreserved. It was not the creation of a new. right, but the -recog· nition, by the Government, of the state of things which had existM in practice. The principle so clearly established fn'the· 'Settleinent ··of 1863 was subsequently departed from and al\hougli the Malguza:rs were treated to be proprietors and . they became illere intermediaries to whom the Government looked for collection of land revenue. ..

The historical ~ateriai .t>~/aining to the pe~iod ' from 1844,' t<l 189QA.D. when the Scipdia. had' ceded the territory to the British and the period ihereafier i.~. the perf6d frpin 1860 til~tbe settlement of t~e Hoshangabad :District fo 1865 i§ of no (I) Ji.H. Baden-Powell-A' Short Account of the Land Ii.evenue and its Administration in British India 1907, at pp.112.lf3. · 8 I ff · sul>ui.ts col.Jilt kiit>ollti r iI9A~t 1 s.e.&. legal consequence. They are undoubtedly historical documents of great importance but are not sufficient to form a basis for the conclusion that the. ancestors of the appellants were the Ruling Chiefs . qf Timarni. First of these was the letter of Lt. Col. Sir W.H. Sleeman, Agent to the Governor General, dated· June 3, 1847 treating the Jagirdar of Timarni at. par with the Chief of MakraFstf¥'1)y which he ordered that there should not be any interference with the revenue management of the Makrai and Timarni estates and all questions relating to transfer of leases, suits for rents, ejectments etc. should be left· to the Chiefs as hithertofore.

This was a letter written when the territory was placed under the Deputy Commi&sioner of Hoshangabad subject to the control of Agent to the Governo1 General. Next ·is a letter from the Deputy Commissioner, Hoshangabad dated July 16, 1860 on a complaint by the kiledar. of the Bhuskutes direeting ·the Settle· ment-Officet that he would cause the survey, and if any commenced, to be <liscotitinued, "as we cannot in any way interfere with the Bhuskute Jagir". We have already referred to the important letter dated July 24, 1860 from the Secretary to the Government, North· western Provinces to the Secretary to the Southern Board . of Revenue, North-Western Provinces, which· brings out the real· status of the ancestors of the appellants as a Jagirdar. "

Jn Sir Richard Temple's "Report on the Zamindaris and other petty Chieftains in the Central Provinces" submitted y by him to the Government of India in 1863, there is a letter by Hector Mackenzie, Secretary to the Chief Commissioner of the Central Provinces addressed to the Government of India dated oeiober 31, ,1863. He traced the history of the aneestors of the appellaptsand then went on to say that they ruled over the territ()ry. We think it necessary to extract the relevan~ I portion thereof which. runs as follows: "The title of Bhooscutta was given by the Peshwa to . officers sent to clear jungles and cultivate waste lands, and · one of these the founder of the family under notice was· sent to Hurda where he brought much land unCler cultivation, and was high officer It appears-that in Peshwa's lime the BhooSc:utta 'rule(j' in Hurdah, and when Scindia obtained possession he gave §ARbAll G0VINbRA6 v. M.i>.

STATE (:S-en, J,\ a grant of five villages, Timumi, Bbaili, Oondrakutcb, Samurdha, and Tupcurn to the family in perpetuity; and until the cession of iiurdab to the British Government, the Bhooscutta was unqer the supervision ;or the Political Agent at· Bhopal (Sehore) and quite· independent. When Hurdah was ceded, Timurni was placed under the Deputy Commissioner of Hoshangabad, .subject to the 1 Commissioner of these territories, . and the late Commissioner and Agent to lhe Governor General Sir W. Sleeman, ordered that the Bhooscutta should not be interf~red with in any way except.in heavy criminal cases an.d· such is still the practice:" His subsequent lettbr to th'i Commissioner Saugar Division dated· December 2, 1863 reads :

"I am directed by the officiating Chief Commissioner to inform you, that the Timurnee Estate being held in Zamin· daree ten'bre, i.e. it is a petty chieftaincy the villages comprised in it need no~ be measured by the .settlement Officer, nor should any cesses be levied. This Estate forms one of three Muckrai; .Timurnee, Pitera, Jn your Divisions which are petty Chieftaincies and in respect o( which the orders of the Government have been solicited jn detail, when they are received they will be communicated." Then there is the letter from the Settlement Commissioner, Central Provinces to the Settlement 'officer, Ho~hangabad date.d August 4, 1865 directing him to take the necessary measures for completing · the 17gular settlement of the Timarni jagir with all practical despatch.

It was .mentioned that although the jagir bad been: released in perpetuity, the chief object of making the •uessment was • io fix the Jamas on which the percentage due on ~ccount of cesses and other taxes ~ere to be fixed. This was . followed by a letter from the officiating settlement Officer to the apelf~11ts' aq~stor . Krisbtiarao Madho dated August 19, 1865 informing liim that there should be no apprehension about the settlement operation in progress, that the object of the Government was only to ascertain the area and capacity of the :Jllages. Sir Charles Elliot's Settlement Report of the Hoshangabad District of 1865 records that Naroo B11llal and Ramcband.ra ~ull\11 Jl sui>REMS coiJRt iuii>ol:rs (i982j 3 s.c.a. made surmandloi and sur-kaimngo by' the Peshwa of the whole 22 paraganas of the Handia Sarkar i.e. they were paragana officials.

He went on to observe that ,the appellants' ancestor Krishenarao Madf10 was a "semi-dependent" jagirdar of Timarni comprising of five villages, bUtas regards rest of his holdings a service muafidar.{'J He states that all of ·.these villages were given 'to . the appellants' ancestors rent-free in perpetuity to meet expenses incurred for the office of sur-mandloi and sur-kanungo which t!ie Peshwa baa bestowed on him . . After ii full investigation into title, the Governor General in Council came to a decision that all Zamindars in the Central Provinces, including the ancestors of the appellants, had to.be regarded and treated as ordinary British subjects.

It is abundantly clear from whl!t has been set forth above that although the Government officials took great pains to determine O what 'was ~the positio'n of the jagirdar of Timarni, the Government. ultimately came to the 9onclusion that be held the status of an ordinary British subject and was nota Feudatory Chief exercising . any sovereign powers. ln Kunwarlal Singh v. Provincial Government, Central Provinces & Berar,('} similar, contentions were raised. In that case, the plaintiffs who "were the Zamindars of Kamtha, Wadad and Deori Kishori known as Wainganga Zamindars and that of Palasgarh governed by what was known as the Chanda Patent, challenged the validity of .the Central Provinces and Berar Revision of the Land Revenue of Estates Act, 1939 which provided for an increase in the levy of takoli as beyond the legislative competence of the then Provincial Llgislature since it amounted to acquisition of Jarid withput payment of compensation-.

They claimed that they' enjoyed sovereign or quasi-sovereign status. and takoli was in the nature of ·a tribute. Both the contentions were rejected. It was held by Vivian Bose,' ). that tako/i was land revenue ~nd that the Zamindars were nothing more than ordinary British subjects and there.fore liable to pay land revenue like any other subject. (1) Sir Charles Elliot: Report on the Land Revenue System.of.the Distrlct of Hoshangabad, Central Provinces : 1865. p. 198 (2) I.L.R. (1944) Nagpur 18\1 , , . SARf>Ak cmviNbaAo v. l.i.P. sTATB (Sen, J.\ . 7sa The Zamindars of Central Provinces like the appellants here had twice carried th~ matter right upto the Privy Couqcil in assertion of their claim that they· were Feudatory Chiefs; but the Judicial Committee clasS'Cd them as ordiQJry British subjects. In Bir Bikram Deo v. Secreiary of State for India in Council(') the Privy Council · was dealing with the -Zamindars in the Raipur [)istrict of the Central Provinces. · Their status was the same as that of Jhe, Wainganga Zamindars and they were governed by what was known as the Chanda Patent, which gave them a status higher than that of other Zamindars.

In Marland Rao v. Malhar Rao,(') the Judlcial Committee was dealing with Kampta za_mindari in Waingana a'nd the. ___claim was that the estate was in the nature of a Raj. In both the• cases, 'reliance was placed on certain historical ma1erial, including Sir Richard Temple's "Report on the Zamindaris and. other Petty Chieftains in the Central Provinces" where he described Wainganga Zamindars governed by the Chanda Patent; generally as "Dependent 'Chiefs".· The Judicial_ Committee while rejecting the contention thafthe zamindars were petty Chieftain liaving attributes of ~ove­ reignty, observed : "It appears, moreover, from Sir Reginald. Craddoc)£'s note, that after a good deal of correspondence between Sir R. Temple, as Chief Commissioner of the C~ntral Pro· vinces, and the Government of India, it was finally decided that only holders of certain estates should be recognized as feudatories, and all others as ordil)ary subjects.

Sanads were granted the former,. expressly mentioning that the succession was in their case to be a single heir. Th~i provision was omitted in the case of sanads to most Zamindars of the second class, including the Amgaon , zamil)dar, though with regard to some others like Chanda that' provision was'expresSly attached." . While coming to that conclusion, the Judicial Committee. observed that: "There are passages here and there both in Sir Richard Jenkins report and Sir R. Temple's report which speaks of all the8e zamindaris indiscriminately as chiefs or chieftains, . (1) L.R. (1911-12), 39 J.A. 31. (2) L:R. (1927-28) 551,A. 4S. 8 . sUPREMil coullT ltEPoRtS {1982J j s.C.11.. but that ............ they could possibly be classed category of sovereign or semi-sovereign chiefs whose possessions were necessarily impartible". In Vajesingji Joravarsingji & Ors. v. Secretary of State for India in Council (supra), Lord Dunedin while dealing with the historical material had said : · "The view of the Officials of the Government as to that wquld intluence .them to make up their minds as to what title should be given or recognized, but even then, as far as their Lordships are concerned, it is what th~y did after investigation, not what they thought at investigation, that is matter of moment." fo conclusion, it must be held that the appellants were not entitled to any money or pension under cl.

(ii) of sub-s. (3) of s. 5 of the Central Provinces and Berar Revocation of Land Revenue Exemptions Act, 1948, not being "the descendants of a fo~mer Ruling Chief" in terms of that section. The result therefore is that appeal must fail and is dismissed with costs. P.B.R. Appeal dismissed.