formed in the same way by offshoots from the original stock, and thus the work of colonisation would be continued.

LECTURE
I.

first held in

divided at an

The village lands appear to have been at first held in The lands at common by the families composing the community as in common but the Russian mir; and there are traces of the periodical early period. re-distribution of the land which is a characteristic of European communities of the same kind. At some period of their existence however a further development took place, when a division appears to have been made of the cultivated lands into equal shares, probably amongst the then existing families; and this division must have taken place at an early stage, as the number of shares is generally small. The original shares continued thenceforth to be preserved as the primary divisions of the village,3 and the subsequent sub-divisions were into fractions of such shares. Thus the Punjab villages are divided into a certain number of ploughlands, which are distributed amongst the cultivators.*

These communities appear also to have attracted to Immigrants. themselves certain extraneous elements which they assimilated more or less completely. These were immigrants who either came and settled in the village, cultivating land abandoned by the original settlers and their descendants, or land allotted to them by the village; or another class who either merely sojourned in the village or cultivated while residing in other villages.

1 Revue des Deux Mondes, tome 100, p. 141.

2 Evidence of Colonel Briggs before the Select Committee of the House of Lords (1830), 4155. The Law and Custom of Hindoo castes in the Deccan Provinces of Bombay by Arthur Steele (London: W. H. Allen & Co., 1868), 207.

3 Fifth Report, Vol. II, 299, 352.

* Campbell's Cobden Club Essay, 161, 162; see Menu Chap. VII, sl, 118, 119. Revue des Deux Mondes, tome 100, p. 511.

'Campbell's Cobden Club Essay, 165. Maine's Village Communities, 177.

LECTURE

Servile dependants.

Three classes

of cultivators

in the land.

There were also certain remnants of the non-Aryan or servile tribes who had no land allotted to them, and no interest in the land they cultivated, but cultivated as mere labourers.1 In Mahomedan times they were called kumherahs, and seem to have corresponded to the landless low castes attached to the Kandh hamlets in Orissa.

There were thus three classes of cultivators having an with interests interest in the soil: first, the original settlers and their descendants; second, the immigrants who had permanently settled in the village; third, the mere sojourners in the village, or those who, without living in the village, cultivated land of the village. I shall proceed to consider the position of these classes more fully.

Khoodkashts.

The original settlers in the village with their descendants, and those cultivators who had been admitted to share the same privileges, formed the class of Khoodkasht (own cultivating) ryots, and they had an hereditary right to cultivate the lands of the village in which they resided."

1 Campbell's Cobden Club Essay, 161, 162; Land Tenure by a Civilian, 69, 83, 84. Orissa, Vol. II, 206, 211, 246. Fifth Report, Vol. II, 302.

2 Orissa, Vol. I, 37. Directions for Revenue Officers, 63. Evidence of Colonel Briggs before the Select Committee of the House of Lords (1830), 4078, and of Lieut.-Col. Barnewall before the Select Committee of the House of Commons (1832), 1744.

3 Campbell's Cobden Club Essay, 165. Land Tenure by a Civilian, 66, 68, 80. The Land Tax of India by Neil B. E. Baillie (London: Smith, Elder & Co., 2nd Ed., 1873), p. xliii. Fifth Report, Vol. II, 299, 301. Harington's Analysis, Vol. III, 353. Whinfield's Law of Landlord and Tenant (Calcutta: Wyman & Co., 1869), p. 15. Orissa, Vol. II, 206. Directions for Revenue Officers, 5, 61, 62. Thakooranee Dossee v. Bisheshur Mookerjee (which I shall hereafter cite as the Great Rent Case), B. L. R., Supp. Vol., 209 (per Trevor, J.), 319 (per Peacock, C.J.), 3 W. R. Act X, 29.

LECTURE

I.

They were also called Chupperbund (house-tied), Mooroosee (hereditary), and Thani (stationary).1

regulated by

Their rights were regulated by custom, probably the Their rights custom of many centuries, and having at least as much custom. force as any written law. These customs were no doubt in some cases violated by the hand of power; but that is only what happened with all rights, whether depending upon express and written law or upon the unwritten law of custom; and these violations were doubtless more frequent in Mahomedan times. But it is to these customs we must look to ascertain the rights of almost all the parties having interests in the land.

India.

The Khoodkasht class of ryots appears to have been the In Southern same as the class of Meerassadars in Southern India, (called also ulcudies in Tanjore,3) who existed in very early times, and were anciently called Caniatchy ryots in Malabar.* They could not be ousted while they continued to culti- Their right to occupy so long vate their holdings, and pay the customary revenue; but as they cultion the other hand they could not originally transfer their the customary holdings without the consent of the community.5 There

1 Campbell's Cobden Club Essay, 165; Orissa, Vol. II, 242. Directions for Revenue Officers, 64.

2 Fifth Report, Vol. II, 41, 42, 120, 299, 489 to 492. Steele's Deccan Castes, 207. Evidence of Lieut.-Col. Sykes before the Select Committee of the House of Commons (1832), 2173.

* Fifth Report, Vol. II, 492.

Fifth Report, Vol. II, 43, 85. Compare the Puttookut ryots of Dindigul, Fifth Report, Vol. II, 494, and the nair mul guenies of Malabar and Canara, Fifth Report, Vol. II, 77, 78. Mr. Baber's evidence before the House of Lords' Select Committee (1830), 3002.

5 Campbell's Cobden Club Essay, 165,170. Fifth Report, Vol. I, 488, Vol. II, 85. An account of the Land Revenue of British India, by Francis Horsley Robinson (Thacker and Co., 1856), pp. 15, 41. Evidence of Mr. Stark before the House of Commons' Select Committee (1832), 427, 428; and Evidence of Colonel J. Munro, 1488.

vated and paid

revenue.

LECTURE

I.

is some little vagueness in the way in which the rights of
this class of cultivators have sometimes been described.
Sir George Campbell says they had a "moral claim" to
hold while they cultivated and paid rent;' and again, that
a distinction was made "in the general language of the
country" between ryots who had settled as permanent
inhabitants of the village, and had given pledges by build-
ing and clearing and establishing themselves and accepting
a share of common obligations, and the temporary sojourners
or cultivators from another village. This seems rather
to refer to the distinction between the two other classes
of cultivators. These expressions however appear to indi-
cate a right considerably weaker than I have described,
unless indeed we look to the state of society in which these
rights were recognised; when a right by custom, although
in one sense only a moral claim until clearly recognised
by express law, would nevertheless be equivalent to a legal
right. Again, Mr. Shore (afterwards Lord Teignmouth)
says that tenants cultivating the lands of the village to
which they belong acquire by long tenancy a kind of
hereditary right of occupancy; while those cultivating
the lands belonging to a village where they do not reside
are considered mere tenants-at-will. And in Harington's
Analysis it is said generally of the ryots in Behar that
they have a sort of prescriptive right to continue tenants
so long as they pay the usual rate of rent: this however ap-
pears to refer only to the class of khoodkashts. The language
'Campbell's Cobden Club Essay, 165.

2 lb.

3 Fifth Report, Vol. I, 140, 162, 164.

4 Harington's Analysis, Vol. III, 426 (n).

5

• Harington's Analysis, Vol. III, 460; again in Harington's Analysis,

Vol. II, 64, it is said that their "right of possession is considered stronger than that of ordinary ryots."

TRANSFERABILITY OF KHOODKASHT RIGHTS.

15

1.

used is as I have said vague, but I think it refers to a right LECTURE by custom as distinguished from express law: to rights which were sometimes overridden by the strong; but which were still considered customary rights, and not merely claims which any one had the right if he had the power to disregard. I have already suggested that in the stage of society and of ideas in which these rights grew up custom was the main law; no doubt it was a law without the definite sanctions of law in a more advanced state, but it was binding and effective notwithstanding.1 These customary rights were always recognised as existing and valid rights; for instance, in the zemindary of the 24-Pergunnahs granted to the East India Company.

There is also some difference as to the transferability of The transferability of their these rights; but possibly the difference may, to a great rights. extent, prove capable of explanation. For instance, Sir George Campbell says these holdings were "practically" not transferable by sale, and that there was not enough profit derived from them to lead to systematic underletting.3 Mr. Shore seems to say they were not transferable at all;* and Mr. Harington agrees with this :5 while as we have just seen the consent of the community was probably originally necessary. On the other hand, it is said that the meerassadars of the Northern Circars, and probably of Southern India generally, could alienate. The power of sale is also 1 See Sir Henry Maine's Ancient Law and Village Communities on Customary Law.

Land Tenure by a Civilian, 66: Fifth Report, Vol. II, 86.

5

Fifth Report, Vol. I, 162.

Harington's Analysis, Vol. III, 460; see Thomason's Selections, 478. Compare the Brahmin Agraghrah vadiky villages of the Carnatic and Mysore: Fifth Report, Vol. II, 485.

Fifth Report, Vol. II, 43.