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LECTURE

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RIGHT OF KHOODKASHTS TO OCCUPY.

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.

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

I.

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 trans-
ferable 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: while as we have just
seen the consent of the community was probably originally
necessary. On the other hand, it is said that the meeras-
sadars 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.

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5 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.

6

Fifth Report, Vol. II, 43.

I.

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MARKET VALUE OF RIGHTS IN LAND.

LECTURE alleged to belong to this class in the North West Provinces.1 Probably the holdings were originally inalienable without the consent of the village community. This consent would, according to ordinary experience in such cases, tend to become a tacit consent or absence of objection if the instances of alienation were frequent. But if such instances were rare, the necessity for any consent, except a tacit consent or absence of objection, would grow to be ignored from mere lapse of time. And we find that there was little left to the cultivators beyond a bare subsistence after paying the Government revenue, and that there was very little to sell in consequence: and that there was no competition for land at that period. Hence it probably happened that there were few occasions for sale or voluntary transfer; but that by lapse of time the original condition of transfer, which required the consent of the village community, had ceased to be considered binding. We know that the principle of these communities had become very much weakened, and that in some places. the existence of such communities was almost unknown at the British accession: and in the gradual decay of these institutions, the veto on alienation would be set at

'Evidence of Colonel Briggs before the Select Committee of the House of Lords (1830), 4078. Evidence before Select Committee of House of Commons (1832) of Lieut.-Col. Barnewall, 1744. Compare Directions for Revenue Officers, 63.

2 Whinfield's Landlord and Tenant, 17. Campbell's Cobden Club Essay, 170.

3 Great Rent Case, B. L. R., Supp. Vol., 253, 279, 295, 296. Campbell's Cobden Club Essay, 164. Compare Directions for Revenue Officers, 41.

See India by R. Rickards, Esq., 2 vols. (London: Smith, Elder & Co., 1828), Vol. I, 587; Vol. II, 285, 289, 290, 291.

KHOODKASHTS PAID HIGHER RATES THAN OTHERS. 17

I.

nought as occasions and opportunities of transfer became LECTURE more frequent. We may therefore conclude that these cultivators held a permanent, hereditary, and although originally an inalienable, yet probably subsequently a transferable, interest in the land.

them.

They paid the customary rate, which could not be raised: Rates paid by and in some parts when the assessment was once fixed, custom prohibited a measurement of the land with a view to surcharging the Khoodkashts.1 But while they had a right

rate than other

formerly.

to cultivate on these terms, they were also bound to cultivate and pay the assessment: failure in either of these conditions involved forfeiture, a penalty which, as may be supposed in the scarcity of cultivators, was generally waived for an increased payment. And besides being bound to keep up the cultivation to the full extent, they were bound to cultivate in the customary way. They paid a higher rate of Paid a higher revenue than other cultivators in former times; but from the cultivators changed state of things under British rule this is reversed. There is now some competition by the cultivators for land, and not as formerly merely a competition for cultivators.5 I shall have occasion to refer to this very significant fact again when I come to discuss the nature of the proprietary rights of the holders of the various interests in the land. The khoodkashts then, in consequence of the change referred to, came in later times to pay lower rates than the other cultivators, but in the Hindoo period they paid higher rates. 'Fifth Report, Vol. I, 165.

Fifth Report, Vol. II, 303, 456.

3 Fifth Report, Vol. I, 164. Directions for Revenue Officers, 274.

4

Campbell's Cobden Club Essay, 157. Orissa, Vol. II, 242. Fifth Report, Vol. I, 140.

Directions for Revenue Offi

5

Campbell's Cobden Club Essay, 164.

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cers, 41. The Great Rent Case, B. L. R., Supp. Vol., 253, 279, 295, 296.

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LECTURE
I.

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THE PRIVILEGES OF THE KHOODKASHTS.

On the other hand the khoodkashts enjoyed various privileges arising out of their position as the original Their privi- settlers of the village. They had a preference in the

leges.

choice of land when any came to be allotted, and no doubt they always occupied the most central and most easily cultivated land. They were at liberty to dig wells upon their land and let out the water;' a privilege considered in India to indicate a high kind of proprietary right, and guarded with jealousy. They also received russooms or fees (called also marahs in the northern Circars) from the other cultivators. Some had a right to the services of the servile labourers, who were attached to the community as beforementioned, or to an allowance of one-eighth of the crop deducted from their assessment in lieu of such services.3 In some places they had allotments of land for which no revenue was paid. Thus in the Jageer they held allotments of this kind called maniums, which were held in common, free of revenue, by all the meerassadars of the village. Again in Cuttack the thani ryots had the ground on which their houses were built free of revenue, together with a small portion of land surrounding them called khana bari and khush bash.6 In some parts of the country there was a periodical redistribution of the lands among this class,7 a relic of the times when the lands were. considered common: for we find the same feature in the Euro

Land Tenure by a Civilian, 80. Directions for Revenue Officers, 5. 2 Fifth Report, Vol. II, 41, 42, 299, 301. Land Tenure by a Civilian, 80. Directions for Revenue Officers, 5.

3 Land Tenure by a Civilian, 78, 80.

Fifth Report, Vol. II, 41.

5 Fifth Report, Vol. II, 305.

6 Whinfield's Landlord and Tenant, 17.

7 Fifth Report, Vol. II, 85, 485.

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