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48 PROPRIETARY RIGHTS.
Ikoturk As I have before mentioned, the sovereign was, in Mahoii. . medan theory, considered the original proprietor of the
ship in diffe"^ land, so long as he received a share of the produce; but when cu persons. ^^ a]xare was commuted into a fixed money rate, he ceased to be proprietor. I shall hereafter discuss the extent of proprietary right which was included in any of the recognised categories before British rule, but I use the term proprietor at present for the owner of such rights as were then in contemplation, whether rights to the soil or to the cultivation or produce of it. The point which at present I wish to make clear is, that, in Mahomedan theory, the two modes of assessment implied theoretically a- different ownership; the one in the sovereign, or in the sovereign and cultivator jointly, the other in the cultivator. And in that theory a change in the mode of assessment, which was in some cases allowed by law, would involve a change of the theoretical ownership. Land which had been assessed with the one kind of khiraj was sometimes assessed with the other kind instead; and then it appears to have been considered by Mahomedan lawyers that the proprietary rights had been transferred by the change.1 Resemblance of The wuzeefa khiraj, depending upon the capability of to the tax paid the soil, and being independent of its actual cultivation, kaskts. closely resembled in those respects the tax paid by the
khoodkashts under the Hindoo system.2 In fact the whole of the assessment in Hindoo times was of the same character; the pyekashts being less bound to the land and more disposed to abandon it under pressure; but being equally obliged while they held it to cultivate and pay the assess
1 Baillie's Land Tax, xxxiv.
PROPRIETARY RIGHTS. 47
ment, which was not remitted when they held the land Lkcturk but did not choose to cultivate it. —
According to the Mahomedan theory, as I have before Extent of pro
. , prietary right.
mentioned, the imposition of the wuzeefa khiraj recognized a proprietary right in the cultivator or taxpayer.1 This right was however only "to the productive powers of the soil, without which the cultivator would not be able to meet his liability for the khiraj," but not necessarily to the soil itself and the minerals in it, or to the large right known as a fee-simple in England.2 The right was nevertheless an alienable one: it is expressly declared in the Hedayah that the lands of the Sowad of Irak, on which the khiraj was imposed, were "the property of the inhabitants who might lawfully sell or otherwise dispose of them."3 This is said of the khiraj lands generally, but is perhaps to be restricted to those subject to the wuzeefa khiraj, since that mode of assessment alone excludes the sovereign from a share in the produce, and renders the cultivator personally liable for the khiraj, whether he cultivates the land or not.4 It is the liability to the wuzeefa khiraj which involves the personal burden, and which appears to carry with it the individual right to the exclusive occupation of the soil; the sovereign ceasing according to Mahomedan theory to be a partner with the cultivator thus assessed. Under such circumstances alienation would be more easily allowed than if the sovereign continued to be a sharer. It is obvious that when the rendering of the wuzeefa khiraj thus implied ownership, the rendering of it, even in a representative or
1 fiaillie's Land Tax, xx.
* Baillie's Land Tax, xliii.
* Baillie's Land Tax, xx.
4 Land Tenure by a Civilian, 34, Appendix viii to x.
Power of alienation.
intermediate capacity and not as the actual cultivator; would tend to give a colour of ownership: and we may perhaps in this way partly explain the assumption of proprietary rights by the zemindars in later times.
Wuzeefa land, as I have said, was alienable: no permission was required from the sovereign:1 it was thus the subject of a more absolute proprietary right than any which has at present came under our notice. The right to alienate was more limited in the case of mookasumah land: land of this class went to the heirs of the cultivator, but could not be sold or mortgaged without the permission of the sovereign:2 and the sovereign himself was considered to have the right to make a grant of such land in some caaes.3
The khiraj, being a conqueror's tax, was naturally a heavy one. The limit of it, whether wuzeefa or mookasumah, was half the gross produce* With respect to its amount the imposition of the khiraj at its highest rate would have been a great change from the ordinary assessment of the Hindoo system: and probably for the reasons already referred to, the conquerors felt unable suddeuly to insist upon the change; and in any case they do not appear at first to have increased the assessment much, if at all. But we shall see throughout Mahomedan times a constant struggle to increase the assessment, which was probably due in part to the high standard to which in theory the khiraj might be raised. This standard, in fact, appears at last to have been reached, if not exceeded. Whatever might PAYMENT OF KHIRAJ. 49
1 Baillie's Land Tax, xxxv.
be the amount of khiraj originally imposed, it could not, Lecturs
according to the strict model of Omar, be increased. If how- —
ever it was not adjusted upon that model, it might be
increased as was done in India; and in all cases it seems
to have been lawful to reduce the rate, when from failure
of crops the land was unable to bear the original rate.1
The khiraj was also remitted when the land was over- Remission of
flowed by water, or when it was cut off from water, so that it could not be cultivated. Likewise, when the crop was destroyed by calamities, such as fire, excessive cold and the like.2
With regard to the mode of enforcing payment of the Mode of khiraj, there was also a distinction answering to the dif- payment ference between the two classes of khiraj. The mookasumah khiraj was, at all events originally, paid in kind, like the Hindoo land-revenue. This mode was known in Hindoo times under the name buttai (or division)—a term which is still in use, and has outlived the term mookasumah, if that term was ever generally applied. In levying the khiraj by this method the State share was naturally taken before the crop was allowed to be removed.3 The main precaution required under this system was careful watching; and hence in Hindoo times the watchman of the crops was a necessary officer of the village. The wuzeefa khiraj being, on the other hand, a personal liability, the defaulter could be sued for it and imprisoned; while for the mookasumah the only remedy was the hold upon the crop.4 The cultivator could not
1 Baillie's Land Tax, xxii.
50 DEFAULT IN PAYMENT OF KHIRAJ.
Lectur* be deprived of his land for not paying the khiraj.1 This
— is laid down generally, and it appears to be put upon the
Procedure ground that such a course would be a violation of proprietary
when cultiva- °
tor made right: the law must therefore have recognised some proprietary right in the cultivator even in the mookasumah lands. This would be in accordance with the general principle that when the conquered inhabitants were allowed to retain their lands subject to khiraj, such lands remained their property. The course prescribed in case the cultivator made default in payment of the khiraj, or if he abandoned the land, or left it uncultivated, was that the Imam should endeavour to let the land to another cultivator, allowing him half, one-third, or one-fourth of the produce; and handing over the residue after payment of khiraj to the owner. If this could not be done, he should give it in mozaraut (or partnership), the cultivator and the State sharing the produce; and after deducting the khiraj from the State share, the surplus was to be paid to the owner. If this course was also impracticable, the Imam should let the land to any one who would cultivate it and simply pay the khiraj. In default of all these methods the land might be sold, and the khiraj paid out of the proceeds: but the surplus must still be paid to the owner; and even if he had absconded must be kept for him, in case he should return.2 In the persistent force both of the cultivator's right to the land and of his obligation to cultivate it and pay the tax, we find a strong resemblance to the position of the khoodkashts as they have come down to us from Hindoo times. How far this element in the observed phenomena is due to the influence of Mahomedan theory it is impossible to say:
1 Baillie'sLand Tax, xxiii, 14,15. Land Tenure by a Civilian, 35,36,38. * liaillie's Land Tax, xxiii. Land Tenure by a Civilian, 38.