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had no joint family; he had a centralised system of Governiment, and was averse to anything hereditary in the State. But although a more progressive, the Mahomedans were a less settled race and nation than the Hindoos : and we can. not suppose that they brought with them from the deserts of Arabia or Tartary any more advanced ideas as to the value of land than the Hindoos already possessed. In fact, in all matters relating to the land, the Hindoo system seems to have remained substantially untouched by the Mahomedans; although the indirect effects of their rule were very important. And we do not find any more than in Hindoo times any assertion of a right to anything more than was contemplated in those times; the right to occupy and cultivate, and retain a share of the produce; and the right to receive the remainder of the produce as sovereign.
The conclusion that there was no proprietor of the actual soil, except the general community, may seem singular, but in truth it is the most natural of all ideas upon the subject.' Menu treats waste land, for instance, as nobody's property until brought into cultivation : the Mahomedan view being still stronger, and treating it as not existing, and as brought into life by cultivation :* And, in any case, the extreme difficulty which was experienced at the time of the permanent settlement in deciding to whom the right in the soil belonged,-a question discussed, although not necessarily decided, in coming to the conclusions arrived at,-seems to confirm the view that it was really undisposed
'Mill's Political Economy, People's Ed., 140, Directions for Revenue Officers, 7.
9 Menu, ch. ix, sl. 44.
3 Baillie's Land Tax, 42. Land Tenure by a Civilian, 89, Directions for Revenue Officers, 48.
of; or at least strongly tends to show that, whoever might LECTURE possess the right, there had scarcely been any instance of the exercise of it. .
The conclusion, then, to which the facts at present before us lead is that the right to the soil itself was undisposed of under the Hindoo and Mahomedan systems; and therefore it seems must have resided in the general community, and the State as its representative. But at the time of the permanent settlement and afterwards three claimants for this right were put forward : the sovereign, the zemindar, and afterwards the cultivators, either individually or as the village communities. The right was claimed for the sove- The sovereign's
claim to the reign because there was practically no limit to his power to soil. take the profits.' But some of those who consider the sovereign as proprietor, really look upon him as representing the general community, and as thus entitled to what is otherwise undisposed of; although with some inconsistency they seem to treat this right as part of the sovereign's specific share. Those who hold this view allow definite rights in the land to the village community or the individual ryot. Others again cut down the sovereign's right, while still considering him full proprietor, to a right to receive the rent; probably including in this right the English right of proprietorship; so that, while recognising no private proprietor, they consider the sovereign's receipt of rent
· Fifth Report, Vol. II, 231. Harington's Analysis, Vol. III, 328. Rickards' History of India, Vol. II, 224, Directions for Revenue Officers, 3. Evidence of Mr. Fortescue before the Select Committee of the House of Lords (1830), 511. Evidence of Lieut.-Col. Barnewall before the Select Committee of the House of Commons (1832), 1753 to 1756, 1758.
* Orissa, Vol. II, 214, 227. Patton's Asiatic Monarchies, 73, 175.
either as carrying with it the right to the soil or as evidence of such a right. With regard to the claim on behalf of the sovereign, on the ground that he can take all the profit of the cultivator, if he pleases, two answers may be made. The first is, that although he may do so by might, he cannot do so by right. We have seen that there are limits to his taking the produce, both in express law and custom. The second answer is, that whatever his rights may have been, he never claimed any right to the soil itself as part of his share, nor ever exercised a right to anything beyond the
natural or accidental produce of the soil. Tho zemindar’s As to the zemindar, we have seen that he derived his claim to the soil,
right from the sovereign on the one hand and the cultivator on the other. But it is said a zemindary is a hereditary and alienable+ proprietary right in land. Such a right does not however carry with it as a matter of course all the rights not possessed by anybody else: or the rights of an English landlord. The khoodkasht's right was hereditary, as were even offices in the Hindoo system; it was also a proprietary right; and the alienability of a right, even if it were not, as in the present case, of modern growth, does not determine anything as to the extent of the right, but only as to the power over that right enjoyed by the possessor. And the account which I have given of the zemindar tends I think to show that he was in no
"Patton's Asiatic Monarchies, 106, 110 note g., 128.
5 Fifth Report, Vol. II, 702 to 704. See Rickards' History of India, Vol. II, 236.
sense the absolute proprietor so as to be the proprietor of LECTURE the soil itself.' On behalf of the cultivator is alleged one of the strong. The cultiva
tor's claim to est grounds-actual possession of the soil; from which, in the soil. the case of a khoodkasht, he cannot be ousted; and the khoodkasht's right is hereditary,' and a proprietary right.“ The permanent possession of the soil, if accompanied with the assertion or exercise of an absolute right to it, might create, and at any rate would be strong evidence of, such a right; but we have seen how far this is from having been the case: and the mere fact that a proprietary right is permanent and hereditary does not give us any clue to the extent of that right. If indeed it were absolutely necessary to import English ideas into the matter, and to conclude that one of these claimants must be held to possess this right, and that the right could not remain in the community undisposed of, like the right to light and air and ferce naturæ, the cultivator would seem to have as good a right as any of the competitors; but there does not seem to be any necessity for introducing such considerations; and even if we did introduce them, it is doubtful whether the question could be decided in the absence of all claim to or exercise of such rights. That the proprietor, whoever
See Great Rent Case, B. L. R., Supp. Vol., 246. Directions for Revenue Officers, 4 to 7, 48. .
? Fifth Report, Vol. II, 77, 78, 303, 479, 703. Evidence of Mr. Warden before the Select Committee of the House of Lords (1830), 1961, 1964. Evidence of Mr. Sullivan before the Select Committee of the House of Commons (1832), 19, 20. Evidence of Mr. Holt Mackenzie before the same Committee, 2574, 2575. Rickards' History of India, Vol. II, 269, 270.
3 Fifth Report, Vol. II, 81, 120, 303, 305, 440, 479.
* Ib., 120, 303. Evidence of Mr. Fortescue before the Select Com. mittee of the House of Commons (1832), 2239, 22 40.
THINGS ATTACHED TO THE SOIL.
he may have been, had not the full English proprietary right is shown, amongst other evidence, by the fact that the English rules as to things attached to the soil do not apply in India. Thus things annexed to the land do not in India necessarily pass with the land, but remain the property of him who put them there;' as with the tree on the waste," huts, and the like.
· Campbell's Cobden Club Essay, 164, 211.
• Evidence of Mr. Newnham before the Select Committee of the House of Commons (1832), 2756.
• In the matter of Thakoor Chunder Paramanick, B. L. R., Supp. Vol. 594; 6 W. R., 228 s. c. Beni Madhub Banerjee o. Jai Krishna Mookerjee, 7 B. L. R., 152, Durgaprasad Misser o. Brindabun Sookul., Ib., 159. Doyalchund Laba o, Bhoyrubnath Khettry, Coryton's Rep., 117. Sowdaminee Debee o. Suroop Chunder Roy, 15 W. R., 363. Purbutty Bewah v. Woomatara Dabee, 14 B. L. R., 201.