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THE HINDOO PERIOD.
Scope of the present subject—Nature of sources of information—Express Hindoo law as to land—Menu does not show extent of rights in land—Obligation of cultivator to cultivate—The king's share—The village as referred to in Menu—The village as inferred from observation and analogy—Lord Metcalfe's description of the village communities—Such communities found in all parts of India—The village lands and homesteads—A self-governing corporation— The development from the joint family—The lands at first held in common but divided at an early period—Immigrants—Servile dependants—Three classes of cultivators with interests in the land—Khoodkashts—Their rights regulated by custom—In Southern India—Their right to occupy so long as they cultivated and paid the customary revenue—The transferability of their rights— Rates paid by them—Paid a higher rate than other cultivators formerly—Their privileges—The second class of cultivators—Their rights in the land— What occupation sufficient—Less complete rights than khoodkasts—Assessment upon them—The mere pyekashts—Rates paid by them—Precarious nature of their rights—The village constitution—The village officers—Mode of payment—The servile labourers of the village—The headman—Partly elective and partly hereditary office—The State could dismiss—His functions— His emoluments—In Orissa villages—Dismissal—Mode of assessment of revenue—Mode of payment—When headman refused to agree to assessment— Headman not a farmer of the revenue—But he and the village responsible— Headman long recognised—The putwarry and canoongoe—The zemindar— The chowdhry—The amount of the king's share—Proprietary rights.
Thb subject of the present course of Lectures, the Land Scope of Tenures of Lower Bengal, requires I think a word of pre- subject6* liminary explanation. The term 'tenure' is not perhaps i strictly applicable in India, but it is one which ls_used in / the legislation relating to the land, and is a convenient term, liable to little misconception. I mean to include in the term 'Land Tenures' the rights and interests in and relating to the land in India, and the relations with respect thereto between the persons entitled to those rights and interests. We shall find that the State, the zemindar and
Lbcturb the cultivator stand in certain relations to the land, and i.
— have certain rights and interests in it, and also have certain relations with each other which are not perhaps exactly those of the landlord and tenant of English Law. I shall endeavour to show what those relations are, and what are the rights of the various parties. I shall also endeavour to show how those rights and relations are created, modified, transferred, and extinguished. It is a wide and difficult subject: one which high authorities have pronounced incapable of satisfactory treatment.1 All I can hope to do is to clear away a little of the confusion with which the subject abounds. In order to do this, and to come to some understanding of the true principles of the law on the subject, I shall have to treat it to a certain extent historically: not indeed with reference to points of antiquarian or historical or political interest—that would be beyond my province; but in order to show what was the state of the law at the commencement of the British rule, and to explain the subsequent modifications of the law, I must attempt to place before you the Hindoo system of Land Tenures as far as I can ascertain it, and the changes introduced under Mahomedan rule, so as to show what the law on the subject was at the British accession to the Government. The same historical treatment will be useful also, although not so necessary, in bringing down the law to the present time. Nature of I shall then first endeavour to describe the Hindoo sys
information. tem of Land Tenures. The materials for such a description are very scanty: we have extremely little accessible information of a direct nature: our main reliance has to be
1 See the Preface to Mr. Justice Markby's Lectures on Indian Law (Calcutta: Tbacker, Spink & Co., 1873).
placed upon facts, first recorded in comparatively late times, Lbcturb and such remains of ancient institutions as are still exist- — ing; and from these meagre indications we have to infer as best we can the state of things centuries before. A few passages in Menu, modern descriptions of the village communities and the land system, with such relics of these as are still existing, are practically all we have to rely upon. Few records of Hindoo times have reached us, and those that have come down to us contain no information on our present subject. Antiquarian research may perhaps in time throw light upon those remote ages, but at present we have to grope in darkness. With respect to Mahomedan times the case is somewhat better, for the Mahomedans kept records of important matters; but the confusion which characterised much of Mahomedan rule in India pervades their histories. Moreover the Mahomedans did not introduce any new system of Land Tenures as we shall hereafter see: and it does not appear to have occurred to them to i give any full description of the system they found in existence. It is for these reasons that the subject of Indian Land Tenures is so difficult and almost impossible to treat satisfactorily. At the best our information is vague, but oftener full of contradictions; and one is haunted by a suspicion that anything like a definite account of the matter must be wrong.
The Mahomedans, as I have said, did not introduce a Express Land or Revenue system of their own, but adopted the as to land, system they found in existence. Hence it is necessary to endeavour to ascertain what that system was. With this view we naturally turn to the written Hindoo law, and especially to Menu. From Menu however we obtain little help. We find only casual mention of rights in land: the
Lecture general theory of land rights is not touched upon, but only — some special cases. Thus Menu says, that " sages pronounce cultivated land to be the property of him who cut away ! the wood, or who cleared and tilled it;"1 a general principle which has been recognised in Germany, Java, and Russia,* and indeed in most countries, and which is expressly enunciated in Mahomedan law also, but which does not enable us to advance much in our present enquiry. It leaves open the question what right of property is acquired, whether absolute and exclusive, or only limited:—whether in the soil itself or only the right to cultivate it. This question has to be answered in the silence of express law by a reference to the actual practice and the ideas of the time. Menu also speaks of the owner of land, and appears to contemplate exclusive and perhaps individual rights in land, although we get no further information as to their nature. The owner of a field is directed or advised to keep up sufficient hedges ;3 he is entitled to the produce of seed sown by another in his land unless by agreement with him;* and to the produce of seed conveyed upon his land by wind or water.5 The case of a dispute between neighbouring landholders or villages as to boundaries is contemplated;6 and a penalty provided for forcible trespass upon another's land.7 These passages show that some kind of exclusive right was contemplated,
1 Menu, Chap. IX, si. 44 (Sir Wm. Jones' translation).
'See three articles by M. de Laveleye in the Revue des Deux Mondes for 1872, eutitled Les Formes Primitives de la Propri6te, Toiue 100, p. 526.
3 Chap. VIII, si. 239.
'Chap. IX, si. 49, 52, 53.
* Chap. IX, si. 54.
1 Chap. VIII, si. 245, 246.
'Chap. VIII, si. 264.
THE KING AND THE CULTIVATOR. 5
and appear to recognise a right beyond that of the village, L* but whether in the family or the individual is not clear. The sale of lands is also spoken of in connexion with the sale of metals." But these passages fail to inform us whether the owner Menu does not spoken of had anything more than a right to cultivate £ and appropriate the produce, and such possession as might be necessary for that purpose. The nature of the proprietary rights before the British accession we shall have to discuss hereafter, when we have before us the whole native system as far as we can ascertain it; but I have called attention to this point here because it is one which we must keep in view throughout. Besides the owner's rights in the land Menu recognises obligation of an obligation upon him to cultivate the soil. It is said, “if £" land be injured by the fault of the farmer himself, as if he fails to sow it in due time, he shall be fined ten times as much as the king's share of the crop that might otherwise have been raised, but only five times as much if it was the fault of his servants without his knowledge.” The king's share here mentioned is to be one-eighth, £5. one-sixth, or one-twelfth, according to the nature of the soil and the labour necessary to cultivate it; but in times of prosperity the king should only take one-twelfth, while in times of urgent necessity he may take one-fourth; this is the king's due on account of the protection he is bound to afford to the cultivator." The king is also entitled on
Chap. VIII, sl. 222.