The Government of Bombay, - Appellant; Desai Kullianrai Hakoomutrai, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 March 1872 |
| Date | 14 March 1872 |
| Court | Privy Council |
English Reports Citation: 20 E.R. 892
ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT BOMBAY.
See Maharana Fattehsangji Jaswatsangji v. Dessai Kalhanraiji Hekoomutraiji, 1873, L.R. 1 Ind. App. 49.
XIV MOORE IND. APP., 552 BOMBAY (GOVERNMENT OF) THE GOVERNMENT OF BOMBAY,-AppeHa,nt; DESAI KULLIANRAI HAKOO-MUTRAI,-Respondent * [March 12, 13, 14, 1872]. On appeal from the Hiffh Cowrt of Judicature at Bombay. An annual allowance for Palkhi Huk (Palanquin allowance) to the holder of the hereditary office of Desai of Broach, held under a Jaghire grant, charged by former native Governments on the land revenues of that Pergunnah, is incident to the tenure of Desai, and is not resumable by Government. Such money allowance paid by Government out of the land revenue of a particular Pergunnah to successive Desais, for upwards of thirty years, does not create a prescriptive title, as such money payment is not " immoveable property" within the meaning of Bom. Reg-, of 1827, sect. 1, cl. 1 [14 Moo. Ind. App. 563]. The action out of which this appeal arose was brought by the Respondent against the Government of Bombay in the District Court of Surat, to establish his claim as of hereditary right to an annual payment of Rs. 1274 for a Palkhi Huk (Palanquin allowance), which was discontinued by the Government on the death of his Father, the Desai Hakoomutrai, in [552] 1863, on the ground that it was originally granted as a matter of favour, for the lifetime of the first Grantee, and was, therefore, liable to resumption at the discretion of the Government. The Respondent claimed the right to the Palkhi allowance as an ancient hereditary assignment of revenue, appurtenant to his office as hereditary Desai of Broach, as well as to an Enam village to which he had right under a perpetual and hereditary tenure, and which Palkhi allowance was originally granted to his ancestors as holding the hereditary public office of Desai of Broach, by the Government of the Country for the time being, and by them enjoyed in succession as of right from time immemorial; and which assignment and allowance had been confirmed and continued to them, as of right, by successive native Governments; and that the allowance had been inherited by them in lineal succession for at least four generations; from one Bhikharidas, the great Grandfather of the Respondent's Father, Hakoomutrai, down to and including his Father, upon whose death payment was withheld from the Respondent, his Son and heir, and hereditary Desai, in direct succession to him by the Government. The Government, however, refused to make the above allowance to the Respondent, or to recognize his hereditary right thereto, first on the ground, that the assessment of revenue forming the allowance, was not made for Desaiship service; secondly, that the Palkhi right was not of the nature of an ordinary Enam grant; and, thirdly, that the same was granted to the original holder personally, as a personal grant liable to cease on his death, and that to allow [553] or not to allow the continuance of a grant or right of this kind depended upon the pleasure of the Government, who, they contended, could stop the same on the grounds of the receiver of the allowance not being worthy to receive the same, or on any other ground, without assigning any reason. The Decree of the District Judge of Surat, Mr. C. G. against Kemball, dated the 12th of June, 1867, decided the title of the Respondent to the Palkhi allowance, as an hereditary right. The judgment stated, that the Plaintiff (the Respondent) was a Desai of Broach, and as such enjoyed undisturbed possession to the present day of a grant of the Enam village, as a Jaghire of that, and the same was added, expressly for the expenses of keeping up a Palanquin, the allowance in dispute; and the judgment then decided, that an allowance of this nature could not have been in its origin more than a personal or life grant; and upon this ground decided against the claim of the Plaintiff, and the District Judge concluded his judgment by deciding, that in his opinion, the Plaintiff had failed to establish that the Grant was hereditary prior to the accession of British rule, and that, as to what followed after the year * Present: Members of the Judicial Committee,-The Right Hon. Sir James William Colvile, the Right Hon. Sir Montague Edward Smith, and the Right Hon. Sir Robert Porrett Collier. 892 V. DESAI KULLIANRAI HAKOOMUTRAI [1872] XIV MOORE IND. APP., 654 1803, there was no evidence that the Bombay Government, either directly or by implication ever consented to regard it as such; but that, on the contrary, the correspondence of the Government at those early times showed without a doubt that this was one of the allowances which they intended uniformly to consider life grants, to be resumed at pleasure. On appeal to the High Court of Bombay, a Division Bench, comprised of the Judges Tucker and Gibbs, reversed this judgment and decreed in [554] favour of the Respondent's hereditary title, declaring that he was entitled to the Palkhi allowance from the date of his Father's death, and decreed the arrears with interest. Mr. Justice Tucker, in delivering judgment, after stating, that the District Judge appeared to have rejected the Respondent's claim on the sole ground of inferences derived from the Reports of eminent Indian Statesmen, said:-"I think that this was not a proper way of dealing with a claim like the present one. The opinions of Indian Statesmen so learned and distinguished as the late Lord Teignmouth and the Hon. Moumvstuart Elpblnstone with respect to the practice and policy of the Mogul Emperors and of other native Sovereigns who ruled in Hindoostan prior to the establishment of the British Empire in India, though entitled .to great respect, are of no judicial authority, and in a Court of Justice should not have been allowed to prevail against the positive evidence of facts, and the legal presumptions which may be deduced from these facts;" and after observing that the Reports quoted by the District Judge admitted the existence of many exceptions to the theory adopted by him, proceeded as follows:-"As might have been inferred: a priori, the acts of despotic and arbitrary Governments with respect to such Grants were not uniform. To this fact the Records of this Court and the reports of the High Courts in each of the...
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