5. The competency of any authority to issue, confirm or revoke grants or orders for exemption from assessment, is determinable by the Governor in Council. 6. A grant for exemption becomes legally invalid: 1st. By escheat. 2d. By expiry of its term. 3d. If the land shall have paid revenue for twelve years prior to the exemption being claimed. 4th. By any unauthorised alteration of the grant. 5th. By omission to register, when registration may have been enjoined under Regulation XXXI. of 1802. 6th. By the non-production of the grant when called for after prescribed 7. Endowments and emoluments for service can in no case be alienated from the objects to which they are annexed. 8. No charitable grant may pass out of the family for which it was designed. 9. No charitable grant or pension can be sold or made subject to any process of the courts. 10. In every case investigated by the Commissioner he shall pass a written decision under his official seal and signature, and if an exemption be confirmed, such decision shall specify the family name and father's name of the incumbent, the exact extent and boundaries of the land to be enjoyed by him, or the exact interest in money or grain, as the case may be, with all conditions as to future succession, right of transfer, &c. 11. An appeal shall lie from a decision of the Commissioner to the Board* of Revenue within 30 days from its delivery, but the period may be extended on just cause being shown. 12. All orders and decisions of the Commissioner shall be carried into effect through the collector of the district. 13. All enams resumed under the orders of the Commissioner shall be assessed according to the local rules or usage by the collector, under the orders of the Board of Revenue. 14. When no investigation of the tenure of an exemption may yet have been made by authority of the British Government, such tenure shall be held to be in the same position in respect of investigation as it was at the acquisition of the province, and its subsequent continuance or entry in the village accounts shall not be held to cure any flaw of title, or to bar the liability for any fraud. 15. The Commissioner's proceedings are to be conducted according to subsidiary rules, to be framed under orders of the Governor in Council. 16. No decision or order passed under this Act, shall be questioned or avoided in any court of law, nor shall any person acting under it be sued for any act bond fide done under its provisions. 17 December 1855. (signed) H. Stokes. FOURTH REPORT. On the Laws that govern Exempted Lands, Grants, and Pensions in the Madras Presidency. 1. THE law now to be reported on, as found in the enactments noted in the margin,† seems simple and compact as compared with those which have hitherto occupied The Bombay law says, "Governor in Council;" but there is no Board of Revenue there. + Regulation XXXI. of 1802; Regulation II. of 1803, sections 27 to 29 and 41; Regulation IV. of 1831; Regulation VI. of 1831; Act XXXI. of 1836; Act XXIII. of 1838; Act XII. of 1851, section 2. occupied my attention. Nevertheless it will be found on examination to involve questions of equal difficulty and importance. 2. The first of these Regulations, passed on the 13th of July 1802, contains, with the preamble, 20 sections, for trying the validity of titles to exempted lands under grants not being Royal grants, and for determining the annual assessment to be imposed on such lands as may be adjudged liable thereto. The preamble sets out with the following remarkable passage, to which I have had occasion to refer: "Whereas, the ruling power of the provinces now subject to the Govern- Second Report, ment of Fort St. George has, in conformity to the ancient usages of the country, 15 November, reserved to itself and has exercised the actual proprietary right of lands of every para. 29. description; and whereas, consistently with that principle, all alienations of land, except by the consent and authority of the ruling power, are violations of that right; but whereas considerable portions of land have been alienated by the unauthorised encroachments of the present possessors by the clandestine collusion of local officers, and by other fraudulent means," &c. 3. The 2d section defines the conditions under which grants for holding land, exempt from the payment of public revenue, shall be deemed valid, to be that they have been made, and the lands actually possessed by the grantee in each province previously to its acquisition by the British Government, and provided they had not escheated or been resumed. The 4. The 3d section reserves exclusively to the Governor in Council the decision in cases to be tried under this regulation, with respect to the competence of an officer to issue grants for exempted lands, or to resume and assess them, and the courts are to be guided by such decision when produced before them. 4th bars all claims to exemption for land under whatever title which may have paid revenue for 12 years before such claims may have been preferred. The 5th declares grants held under life tenures to be resumable from and after the death of such life tenants. The 6th declares lands held under expired or resumed grants liable to be assessed, in the same manner as if they had expired or been resumed before the other lands in the same zillah had been permanently assessed. The 7th declares, that after the permanent assessment, parties holding exempted lands may only be ejected by decree of court. The 8th declares, that length of possession under invalid titles cannot bar the right of Government. The next section gives the collectors power to require the production of sunnuds or deeds under which persons hold exempted lands, under pain of fine for the first offence, and fine with imprisonment if repeated. The 10th section restricts collectors from instituting suits without the written permission of the Board of Revenue, but when so authorised, they may, under the 11th, attach the lands of claimants who refuse to produce their grants, or deny that they have them, and they may proceed against them as for arrears of revenue. The 12th declares grants to be invalidated if forged or counterfeited, or a name substituted for the original, or a new name inserted, or the denomination of the tenure altered, or date changed. And under the 13th, persons practising frauds for the purpose of obtaining exemption, are to be prosecuted criminally. Under the 14th section, lands recovered by the officers of Government are to be charged with a full assessment. 5. The 15th section prescribes the keeping of a register in each zillah of lands held exempt from revenue, and these registers are to be corrected and renewed once in every five years. And under section 16, all grants of land actually held under exemption are to be registered, whether they have been confirmed or not by competent authority. Under the 17th, the collectors are to require by public notice the registration of all exempted lands; and by the 18th, the omission to comply with such notice. during one whole year from its publication renders the lands liable to full assessment under sanction of the Board of Revenue. The next section states how the registers are to be authenticated, and that sunnuds not registered shall not be deemed valid. And the last section declares that native servants, public or private, may be punished, on proof before a court of justice, for receiving any valuable consideration for procuring the registry of unlawful grants surreptitiously or otherwise, by forfeit to Government of the money received, a fine of three times the amount, with charges of suit, and by one year's imprisonment in addition, besides being incapacitated for re-employment. 6. I have Third Report, 1 December, para. 6. 6. I have already noted the provisions of Regulation II., of 1803, affecting enams. The 27th and the two next sections of this Regulation require Collectors to report to the Board of Revenue, whenever it comes to their knowledge, that lands are held under invalid titles, and on receiving their order to prosecute the holders in the manner prescribed by the Regulations, receiving after the final decision, a commission, equal to 25 per cent. of the annual assessment recovered. 7. The 41st section seems to imply that the above is limited to settled districts, for it says, "In districts where the land tax may not have been permanently fixed, Collectors shall report to the Board of Revenue all unauthorised alienations of land, with every circumstance relating to such land; but Collectors shall not resume alienated lands without authority from the Board of Revenue." I shall afterwards notice the somewhat intricate discussions that have taken place as to the construction of this section in connexion with Regulation XXXI. of 1802. 8. It would appear, however, that whether in settled or unsettled districts the law remained equally in abeyance. Some attempts were made to carry out the Registration Clause in the Northern Circars, but I believe they will be found to have proved abortive. Had there been any systematic effort to act on the intention of the Legislature, the difficulties in the way must have attracted earlier attention. 9. The Regulations of 1831, being the next in order of time that relate to enams, seem intended to refer not so much to the validity of tenure as to the disposal of claims to succession, although both may be comprehended in the letter of their provisions. Regulation IV. of that year, in four short sections, preserves to the Governor in Council the exclusive power to decide, after due investigation by such persons and in such manner as he may deem fit, on claims to hereditary or personal grants of money, or of land revenue, conferred by the Governor in Council, or as subsequently extended by Act XXXI. of 1836, by any native government, and confirmed or continued by the British Government in consideration of services rendered to the State, or in lieu of resumed offices or privileges, or of zemindaries or polliems forfeited under attachment, or management, or as a yeomiah or charitable allowance, or as a pension, unless the plaint be accompanied by an order from the Secretary to Government referring the party to the Courts of Adawlut. 10. The 3d section as modified by Act XXIII. of 1838, declares such grants not to be liable to attachment or sequestration in satisfaction of any process of court; and the 4th saves decrees of court previously passed from being affected by this Regulation. 11. By Regulation VI. of the same year, claims to all service enams and emoluments were removed from the jurisdiction of the courts, and reserved exclusively to the revenue department, while at the same time these tenures were declared to be inalienable by mortgage, sale, gift, or otherwise. 12. The 2d section declares that the emoluments from land, from fees, or other sources which have been annexed by the State to hereditary offices in the revenue and police departments, are inalienable, and not liable to the process of courts. The 3d directs all claims to them pending in the civil courts to be struck off the files, charges incurred being refunded. And the next, in five clauses, makes them adjudicable by the Collectors with the assistance, if thought necessary, of native assessors, to whom they may at their discretion refer these claims, and for enforcing the attendance of witnesses they may exercise the powers of zillah judges under section 7, Regulation III. of 1802, the general provisions of which, so far as applicable, must be observed, and witnesses in these investigations are liable to the penalties for perjury in the same way as if committed before the ordinary courts. The 5th section, in two clauses, provides for an appeal to the Revenue Board from decisions passed or fines imposed by the Collectors, if preferred within three months, to be extended if the Board see fit. The Board's decisions under the next section are declared final, power only being reserved to the Governor in Council to revise and modify them when he may deem it necessary for the ends of justice. The 7th rescinds 19 and 20 of Regulation XI. of 1816, and places village watchers, as well as all other persons holding hereditary and village offices in the revenue and police departments to which emoluments have been annexed under the immediate authority and control of Collectors, and liable for just cause to suspension or removal by them, subject to the approval of the Board of Revenue and the sanction of the Governor in Council when he may see fit to interfere. The last section explains that the foregoing provisions are not applicable to the office of curnum as established by XXIX. of 1802, or to the public institutions referred to in Regulation VII. of 1817, or to their trustees and superintendents. 13. Such as it now stands is the whole law affecting exempted lands, grants, and pensions in the provinces; but by section 2 of Act XII. of 1851, a new principle is laid down as regards exempted lands under the collectorate of Madras. It declares that lakiraj tenures of land, of which uninterrupted possession has been held under alleged grants, exempt, or partially exempt, from assessment for sixty years, shall be valid, and no others, except under an unexpired grant from the British Government prior to this enactment; exempted lands, as far as I can see, in Madras, were subject to Regulation XXXI. of 1802, and as such not entitled to acquire validity simply by possession of any duration whatever. 14. The full import of Regulation IV. of 1831, as extended by Act XXXI. of 1836, appears to have been for the most part overlooked, when passed, and for long afterwards. The question seems to have been first raised by the Collector of Cuddapah in 1846, and again by the judge of Nellore in 1848. Both these officers pointed out that bhatta virdte enams,* for the support of Brahmins or other persons, the most numerous class next to those annexed to service, came under the terms "charitable allowance," and were therefore removed from the cognizance or process of the courts by the extended laws. 15. The question under another aspect was afterwards fully discussed between the Collector and Judge in Guntoor, and by them brought before the Sudder, whose final decision, only recently announced, is to the effect that, as the law now stands, the two classes of enams, charitable and service, defined in Regulations IV. and VI. of 1831, and Act XXXI. of 1836, comprehend together all enams whatever. Thus, therefore, all seem now removed from the jurisdiction of the courts with the exception of those attached to the office of curnum in permanently settled estates, or such cases as under Regulation IV of 1831 may be referred to them by the secretary to Government. I cannot say whether such was the intention of the Legislature, or whether under section 8 of VI. of 1831 religious endowments are not still subject to the jurisdiction of the courts. 16. I have now to point out what appear to be the defects in the law thus reviewed. They have been prominently brought out in the correspondence which has taken place since the enam question has attracted the attention of Govern ment. 25 September 1837. 9 February 1843. 23 August Board to Government 10 March - 20 March - 1843. 12 May - 1843. 17 August 1843. 17. The papers noted in the margin originated in an opinion expressed by the Collector of one of the ceded districts that the investigation of enams could not be carried out there without a new regulation. Government desired the Board to obtain the opinion of the sudder judges on this point. This was given in 1837, but through apparent inadvertence the Board did not proceed with the matter till 1843, when they recorded their views as differing to some extent from those of the judges who themselves had not been unanimous; and Government having referred back the Board's paper to the Sudder, that court, as constituted in 1843, dissented from their predecessors of 1837. The Board were again called upon with reference to the sentiments of the judges in 1843, and to a full minute on the enam question by the Honourable Mr. Chamier, to lay before the Government the written instructions they proposed to issue for the investigation of enams here the matter seems to have ended, possibly in consequence of the views subsequently communicated by the Court of Directors, which I shall notice by-and-bye. 18. Instead of recapitulating further the somewhat intricate correspondence above cited, I shall endeavour to extract the chief questions mooted in it, and the conclusions come to upon them. They are- 1st. Whether See para. 10, 25 Para. 6. 1st. Whether under section 41 of II. of 1803, enams in unsettled districts are excepted from the operation of section 7, Regulation XXXI. of 1802. The Sudder Judges in 1837 were of opinion that the latter Regulation was meant to apply to permanently settled districts. 2d. As to the power of the revenue authorities to resume unauthorised alienations of land, the jurisdiction of the courts being excluded in unsettled districts. The Judges were of opinion, that although the Collector, with the authority of the Board, is competent to assess lands unlawfully alienated in unsettled districts, a landholder can only be ejected by a decree of court, so long as he as he pays the assessment to which the land may be liable, and there is nothing to prevent his seeking redress in the courts, if aggrieved by the Collectors' Act. On this construction, it occurs to me to remark, that the ejectment of an enamdar, contemplated in section 7 of Regulation XXXI., seems much the same as the resumption of his enam by assessing it, and enforcing payment of such assessment. 3d. As to the position of persons, whether in settled or unsettled districts, who had succeeded in the possession of enams, those who were incumbents in 1802. The reply of the Judges is to the effect that such successors, as regards liability to the investigation of their tenures, would be in the same position as the incumbents of 1802. (This part of the court's reply seems to miss the point as to the necessity of succession by lineal descent, which the regulation seems to imply, by using the words incumbents, or their ancestors). 4th. The power of Government to question the competency of a granter, supposing the grant to be anterior to the British acquisition of the province. The Sudder Judges in 1837 held the negative, and those of 1843 the affirmative view of this question. 5th. Whether the law recognised the validity of any enam not held under sunnud. At the earlier period, the sudder judges seem to have held the possibility of a title being founded on the mere fact of possession, although the necessity of a sunnud seems recognised by them in para. 8th of the same paper. The court at the later period were decided that the existence of a genuine grant is indispensable to the validity of an enam. Lastly. Admitting the competency of the revenue authority to assess invalid enams in unsettled districts, how far they are bound by the provi sions of Regulation XXXI. in other respects. In 1837 the Judges seem to have considered the general principles of this Regulation applicable to unsettled districts. In 1843 they thought it competent to a Collector in settled as well as unsettled districts to assess enams held under sunnuds not genuine, or by authority not competent. I cannot understand, however, how, if sunnuds are shown when called for, they can do this without a civil suit, in settled districts. 1848. Cir. Order - 22 May - 1848. 1848. 19. The important correspondence on the mode of dealing with lapsed enams, printed among the Revenue Board's Circular Orders, though professedly not touching the law upon this subject, calls next for notice. 20. In April 1845, the Government appear for the first time to have prohibited the continuance of the enams of deceased incumbents to their successors without special authority, requiring all lapses to be reported. Proceedings 9 May taken in consequence of this order led them, three years later, to 13 October 1847. record their views more fully, having, in the meantime, been 19 January 1848. reminded by the Honourable the Court of Directors "that long undisturbed possession not only affords evidence of the existence of the right, but moreover, with respect especially to landed property and to tenures affecting whole classes of persons, creates, on considerations equally of policy and justice, a powerful motive with Government for not wishing the possession to be disturbed." And the Court desired these instructions to be applied to enams throughout the Presidency. Rules framed in accordance with these directions were circulated by the Board on the 27th of July 1848, and continue to |