VIII. LECTURE payable by others was subject to increase under certain conditions. Rents prior to the settlement were fixed according to the produce of the land, so much of each beegah going to the Government as landlord, and so much to the ryot. The same principle prevailed after the settlement, save that the position of the zemindar as landholder between the Government and the actual cultivator was distinctly recognized, and he was declared to be the proprietor of the land in a certain restricted sense." Mr. Justice Seton-Karr remarks" Neither by Hindoo, by Mahomedan, or by Regulation law was any absolute right of property in land vested in the zemindar to the exclusion of all other rights; nor was any absolute estate, as we understand the same in England, created in favour of that class of persons. The ryot has by custom, as well as by law, what we may term a beneficial interest in the soil." And again"The Decennial Settlement, while enhancing the status and fixing the rights of the zemindars, did not intend to alter, and did not alter the common law of the country with regard to ryoty tenures: khudkasht ryots, whose tenures commenced at or subsequently to the Decennial Settlement, were still entitled to hold such tenures either at the pergunnah rates, or, what is the same thing, at rates payable for lands of a similar description in the neighbourhood." Mr. Justice Campbell treats it as "clearly established that, by the terms of the Permanent Settlement, the zemindars were not made absolute and sole owners of the soil, but that there were only transferred to them all the rights of Government, viz., the right to a certain "Mr. THE ZEMINDAR'S RIGHTS. 315 proportion of the produce of every beegah held by the ryots, together with the right to profit by future increase of cultivation, and the cultivation of more valuable articles of produce; it being further established that the khudkasht or resident ryots retained a right of occupancy in the soil subject only to the right of the zemindars to the certain proportion of the produce represented by the pergunnah or district rates."" Mr. Justice Norman remarks"These provisions appear to me to show that although the zemindars were by the Regulations constituted owners of the land, such ownership was not absolute. The Regulations which created a right of property in the zemindars do not recognize any absolute right in them to fix the rents of the land at their own discretion." Sir Barnes Peacock did not agree with the actual decision in this case, and seems to consider a greater right to belong to the zemindar. And a recent writer already referred to appears to consider that the zemindars have acquired larger rights than I have attributed to them. He says3-" A very important change was brought about by the legislation of 1793. The legislature then, for the first time, declared that the property in the soil was vested in the zemindars, and that they might alien or burden that property at their pleasure without the previously obtained sanction of Government; and the moment this declaration was made, obviously all subordinate tenures and holdings of whatever sort became also personal proprietary rights in the land of greater or lesser degree, possessing each within itself also in greater or lesser degree powers of multiplication. When The Great Rent Case, B. L. R., Supp. Vol., 251. 2 Ib., 303. "Rustic Bengal" in the Calcutta Review for 1874. LECTURE VIII. LECTURE VIII. the zemindar's right had become in a certain sense an And the cases now seem to have decided that a settlement with a person under the Bengal system does not establish in the person settled with a right to the land if he did not already possess it; but that a settlement is an arrangememt made by that person with the Government with respect to the revenue only. This indeed appears 2 Juggutmohinee Dossee v. Sokheemonee Dossee, 17 W. R., 41, at p. 44; 10 B. L. R., 19, at p. 33, s. c.; 14 Moore's I. A., 289, at p. 305, s. c. THE ZEMINDAR'S RIGHTS. 317 from the Regulations themselves, which while directing, in the Regulations for the Decennial Settlement,1 that the settlement should be with the "actual proprietors," recognises that the actual possessor, and the person therefore actually settled with, may not be the proprietor, and that consequently the fact of settlement with a person under the Regulations does not conclude the question of proprietorship as between that person and the true proprietor.2 Thus, both as regards the rights of the ryots, and as regards the claims of other persons to be settled with, the rights of the actual possessor are subject to question, and are not concluded or rendered absolute by the fact of settlement. Now the Regulations for the Decennial Settlement prescribe that the settlement is to be made "with the actual proprietors of the soil of whatever denomination, whether zemindars, talookdars, or chowdries ;" and probably this enumeration may be considered as recognizing that zemindars, talookdars, and chowdries are "actual proprietors of the soil;" and the preamble of Regulation II of 1793 recites that "the property in the soil has been declared to be vested in the landholders, which was never before formally declared." This declaration is stated to have been made as a part of the provisions for permanency of holding; the revenue being also fixed with the same view. But these expressions do not define the extent of the rights of the landholders or zemindars; and as we have already come to the conclusion that in a certain sense and for the purposes of settlement, which was the matter then in hand, they had acquired certain restricted proprietary rights in the revenue which 2 Regns. of 23rd Nov. 1791, cl. 3, and Regn. VIII of 1793, s. 4. * Ib., cl. 28, and Ib., ss. 29, 30. LECTURE VIII. LECTURE might fairly be considered rights in the produce of the soil and in the soil itself, it seems unnecessary to infer that any greater right was intended to be given them by a mere enumeration and description of the classes to be settled with and by the recital of such settlement. Moreover we have seen that, for the reasons dwelt upon in the Great Rent Case, the proprietary right contemplated was not, what possibly the words used might by themselves be thought primâ facie to imply, an absolute exclusive right in fee simple: for the ryots are recognized as having proprietary rights as well, that is to say, rights which they did not derive from the zemindars. It is remarked by Sir Henry Maine that the distinction between proprietary rights and rights which are not proprietary is that the latter have their origin in a contract of some kind with the holder of the former. We have seen that Lord Cornwallis was under the impression that the rights of the ryots might be treated as derived in this way: but the Regulations themselves save the rights of the ryots as they actually existed; and it is now the opinion of most authorities on the subject that the actual rights of the ryots were proprietary rights.1 They were not derived from or carved out of an original theoretically complete proprietary right in the zemindar, in the way that all interests in land in England are theoretically derived from or carved out of the fee simple. As therefore the term "actual proprietors" does not mean what might be supposed primâ facie, but something less, and considering the way in which it is used in a mere enumeration of the persons to be settled with, and unaccompanied In a work by Mr. Carnegy (London: Trübner & Co., 1875 on "Land Tenures in Upper India," the rights of the ryots are, however, altogether denied. |