GIRDHURLALL

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COLLECTOR OF

1859. and ordered by the Collector of Surat. The Court SUMBHOOLALL having, at the request of the Respondent, the Collector, transmitted interrogatories to the Collectors of THE the neighbouring Zillahs of Ahmedabad and Broach, SURAT. to ascertain the nature of the garas tenure in those Zillahs, the Collectors replied, that special arrangements had been entered into respecting garas rights, under which they would not be saleable. It, however, appeared in evidence, from a certificate of Mr. Sutherland, a former Judge of the Court of Surat, dated the 20th of December, 1836, to the Assistant Judge of Broach, in reply to a reference which had been made respecting the nature of Tora garas in the Zillah of Surat, that there were then very few instances of the attachment and sale of Tora garas, but that there was no doubt that where such description of property was possessed, a party having a decree against the property might attach and sell in satisfaction thereof Tora garas, in like manner as any other description of property, and that purchasers had been in enjoyment of the produce, receiving the same as it became due from Government; that Tora garas, like every other description of garas, was Wuttun, but was entirely unconnected with hereditary or any other office, and was a money payment of a fixed nature on a village.

The cause was heard on the 19th of September, 1845, when the acting Assistant Judge, Mr. A. B. Warden, by his decree, decided that a Garas Huk could not be enjoyed by any one but by the Grassia himself, for Garas were money payments made to Grassias to purchase the forbearance of plundering parties; therefore, if the Huks were sold and the money paid to the purchaser, then the Government had no hold

GIRDHURLALL

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THE COLLECTOR OF SURAT.

whatever on the Grassias, in case of their again re- 1859. sorting to acts of violence, and that the Court was SUMBHOOLALL not, therefore, justified in ordering the Respondent, the Collector, to enter the name of the Appellant in the Government books, or in causing him to pay the amount claimed by the Appellant; and with regard to the Appellant's claim on the Respondent, Nusserwanjee Pestonjee, the acting Assistant Judge held that the Respondent could not be made responsible, as the Appellant, previous to purchasing the Huk, ought to have made particular inquiries as to whether it was saleable or not.

From this decision the Appellant appealed, and Mr. R. Keays, the acting Judge of the Court of Surat, concurring in the views of Mr. Warden, the Assistant Judge, on the 4th of April, 1846, confirmed that decree.

The matter in dispute being under Rs. 5,000, the Appellant, on the 15th of June, 1846, presented a petition of special appeal to the Sudder Dewanny Adawlut against the decree of the Zillah Court, alleging that he was entitled to redress under secs. 26 and 30 of Bom. Reg. IV., of 1827. The petition came on to be heard on the 8th of December, 1847, before Mr. Simson, the sitting Judge, who granted, under the Act, No. III. of 1843, a certificate of admission of a special appeal, and recorded the following judgment:"This is a very peculiar case; the Appellant, Sumbhoolall, applies for one of two modes of redress, either that the Collector be ordered to instal him in certain Tora garas huks, with arrears for four years, now in the treasury, or that Nusserwanjee Pestonjee be made to refund the money paid at auction for the Huks, sold by order of the Adawlut, with interest for

1859. the use of the money since the sale. The arguments SUMBHOOLALL stated in the decrees of the lower Courts against the GIRDHURLALL transfer of such Huks to ordinary individuals seem to

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COLLECTOR OF

THE the sitting Judge to be conclusive; such Huks cannot SURAT. be diverted from the purpose of their original institution, namely, remuneration for the maintenance of the public peace of the District; but it seems irreconcilable with equity that Sumbhoolall should be made to lose both the Huks and the money also, paid for them at public auction, held by direction of the Adawlut, and with the sanction of the officer of Government. Either the Huks should be transferred or the money paid for them refunded; but the former course is not practicable. The sitting Judge does not think the maxim' caveat emptor' is fairly applied here by the lower Courts. A sale or deed by a Court of Justice, and allowed by the revenue authorities, must be presumed by a purchaser to be proper and legal, and the purchaser must not suffer through the error of the Court in directing the sale, in satisfaction of a decree, of Tora garas huks, which, from their very nature, are not saleable; and on the ground that the Order for the sale was a departure from practice."

On the 24th of August, 1849, the special appeal was brought on for hearing before Mr. Le Geyt, the then sitting Judge of the Sudder Dewanny Adawlut, when he made the following Order :-"The point to be tried in this case is not very clearly certified in the proceeding of the sitting Judge, Mr. Simson; and the Court, under the provisions of sect. 8 of the Act, No. III. of 1843, accordingly amend it as follows:Whether Nusserwanjee Pestonjee, in procuring the sale of certain Tora garas huks, in satisfaction of a decree held by him against the owner of such

GIRDHURLALL

Huks, and which have been declared to be inalien- 1859. able and unsaleable, is not liable to the purchaser in SUMBHOOLALL the amount of the purchase-money paid by him on the faith of an auction sale by the judicial authorities of the Zillah."

The case was again brought on for hearing before the full Court on the 6th of September, 1849, when the Court, consisting of Mr. John Warden, Mr. Le Geyt, and Mr. Grant, ordered the certificate to be further amended, as follows:-"To determine first, whether Tora garas huks are saleable by the Courts of Adawlut, and if so, to what extent; second, whether the Collector was justified in this case in refusing to register the transfer and act upon the sale; third, whether, in the event of the first question being decided wholly or partially in the negative, and the second wholly or partially in the affirmative, the purchaser has any, and what, claim against the execution creditor, Nusserwanjee Pestonjee."

The Court having remitted the case to be heard before a single Judge, it came on again to be heard before Mr. Le Geyt, but that Judge not being prepared to confirm the decision of the Zillah Court, referred the case back to the full Court, which Court, on the 19th of December, 1849, having heard the appeal, the Judges recorded their opinions separately; that of Mr. Bell was as follows:-" The points on which we are required to decide are, first, whether Tora garas huks are saleable by the Courts of Adawlut, and if so, to what extent; second, whether the Collector was justified in this case in refusing to register the transfer and act upon the sale; third, whether, in the event of the first question being decided wholly or partially in the negative,

v.

THE COLLECTOR OF

SURAT.

CASES IN THE PRIVY COUNCIL

1859. and the second wholly or partially in the affirmative, SUMBHOOLALL the purchaser has any, and what, claim against the GIRDHURLALL execution creditor, Nusserwanjee Pestonjee. I would

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THE COLLECTOR OF SURAT.

answer the first query wholly in the negative, and the two last in the affirmative. I concur with the Zillah Judge, that Tora garas is a Chakreat huk, having been originally given as black mail to the Grassias, to abstain from pillage and other acts of violence to the Ryots, and receiving such Huks as Wuttun. I am of opinion they can only be alienated to the extent of the life interest of the party in possession of the same, in accordance with the spirit of the Court's interpretation, dated the 23rd of February, 1831, on sec. 20, of Reg. XVI. of 1827, but which are not saleable; and, under the above view, I hold that the Collector was fully justified in refusing to register the transfer; and, as the other Respondent, Nusserwanjee Pestonjee, was the means of the illegal sale taking place, he must be held responsible for the claim preferred by the Appellant, namely, the purchase-money, together with interest thereon at 9 per cent., and the whole of the costs incurred in all the Courts, with the exception of the Collector's, who, having made no objection within the term of the proclamation, should bear his own costs. Having given my opinion on the amended certificate, for I find the certificate has been amended, both before the single Judge and also the full Court, I beg to record my dissent against the procedure adopted, the same being opposed to sec. 8 of Act, No. III. of 1843, which declares, that in amending a certificate it is not lawful for the Court to receive or add any new point or points. This has, however, been done in the present instance. As the admitting authority, Mr.