P L D 1958 (W (PLP)

WAHIUUDDIN, J.‑--‑ The petitioner in this writ petition has challenged the order of the old Government of Sind dated 8th February 1955 abolishing all the Jagirs and has prayed that a Writ of Mandamus or any other appropriate writ may be issued to the respondent‑Government forbidding them from implementing or giving effect to the said order. The impugned order arose in the following circumstances :‑ On the conquest of Sind by the British, four Talpur ruling families were possessed of vast areas of land in the area known as "The Former Province of Sind", the petitioner's ancestor Mir Ghulam Muhammad Mankani Talpur also belonged to one of these ruling families and it is alleged that he was also seized and possessed of lands as Jagirs situated in District Hyderabad and Karachi now Thatta, which were continued and confirmed by the British, Government with the exception of certain waste lands. The said Mir Ghulam Muhammad Mankani is shown in the list of the Mirs belonging to four ruling families of Talpur at page 66 of the History of Alienation, Volume II at item No.

26. The British Government issued a Sanad to Mir Ghulam Muhammad Khan Talpur Bagganar. Its certified copy appears at page 53 and is in the following terms "No.

16. To Meer Ghulam Muhammad Khan Talpoor Bagganar. WHEREAS it is the object of the BRITISH GOVERNMENT to respect both private rights and public usages in the disposal of such lands as have fallen to them by virtue of Conquest ; to give honour to those who are worthy of honour, and to keep respectable persons from want and difficulty, it has been thought fit to institute enquiry into the land tenures and general circumstances of the Jageerdars of Sind, so that provision may be made not only to meet the present necessities, but also for the future support of the Sons and lineal male descendants, of a certain number. NOW YOU Meer Ghulam Muhammad Khan Talpoor. B having been found on enquiry to have been possessed, at the Conquest, of Jageer land in this Province, con tinued to you by His Excellency the Governor Sir Charles Napier, THE BRITISH GOVERNMENT HAVE DETERMINED that your position shall not be interfered with for the term of your natural life, so long as you remain true and loval and THIS SUNNUD IS NOW GRANTED TO YOU in supersession of all prior documents, confirming you in the grant aforesaid. AND FURTHER in consideration of your rank, and the social position of your family, and of the late Governor's proclamation in respect of the four Talpur divisions of Shahdadanee, Shahwanee, Khananee and Manikanee, IT IS ORDERED that from the whole amount of Beegahs in your possession the amount of 31,400 Thirty one thousand four hundred BEEGAHS BE ACCORDED TO YOUR LINEAL HEIRS MALE (Failing whom, to the lineal male descendant of the Jageerdar recognised at the Conquest) FREE OF ALL ASSESSMENT, EXCEPT 5 PER CENT FOR ROADS AND SCHOOLS. In this amount no more than one‑third of your present possession will have been resumed on account of WASTE LAND, agreeably to custom under the late Governor His Excellency Sir C. Napier. This allotment may be now chosen by yourself and marked off in communication with the settle ment Officer of Government, or reserved for after con sideration by your heir. Should you have, as is most probable, sufficient WASTE LAND to cover the Govern ment demand on that account, you will not necessarily give up one inch of productive soil ; the only provision being that the permanent Jageer consist of one consolidated and well defined land alienation, where the possessions are contiguous ; and, as far as practicable, complete Makans. AS IT HAS, HOWEVER, been the custom of the British Government to allow a REGRANT TO the sons of the Superior Jagirdars in Sind found in and allowed possession at the Conquest, OF ALL LANDS OF which they were so possessed, on payment of an Assessment equal to quarter produce or on resumption of a quarter the whole amount of land, YOUR IMMEDIATE HEIR WILL HAVE THE OPTION of accepting this settlement in his own individual case ; and, should he prefer such alternative, the permanent arrangement would not be carried out until the occurrence of a second succession. But if he, or indeed you yourself accept the said permanent settlement it will not be optional on his or your part to revert to the original state of things. WITH RESPECT TO THE PAYMENT OF WATER RATES, you will be subject to the Local Rules in force to meet the Government Expenditure on Canals, due regard being had to the particular circumstances of your Jageer. IN CONCLUSION you will bear in mind that while the British Government exacts from you no service, whether in supplying Soldiers in time of war, or labourers in time of peace, as a necessary condition of tenure, yet it is expected that all good and faithful subjects of HER MAJESTY THE QUEEN, whether Jageerdars or not, will render all assistance in their power on any special occasions when such may appear desirable ; and it is natural to infer that those who hold certain revenues and benefits, alienated to them or continued to them in alienation by the State should be the foremost in proving themselves worthy of the privileges conferred upon them, by .being ever anxious to avail themselves of every chance occasion presented to serve the 'Government under whose protection they live. But be it distinctly understood that failing loyalty and good behaviour on your part or that of your Successors, this Sunnud will be revoked and the grant resumed. (Sd.) .... . Commissioner in Sind Registered No.

16. F‑J. Goldsmid, Late Assistant Commissioner for Jageers in Sind. N.B.‑This 5010 for Roads and Schools should be calculated on the estimated net income of Jagir. The quarter produce implies quarter of estimated net recovery." The grant of this Jagir was continued from Mir Ghulam Muhammad Khan Talpur to Mir Khuda Bux, the father of the petitioner. This appears by letter dated 7th March 1939 No. H/3047 issued by the Collector of Karachi and is reproduced below "No. H/3047 of 1939 Karachi, 7th March 1939. Faisla in the matter of Jagir 16 in the Roll of the "Four Great Talpur Families". In the Jagir Roll of Sind under the head "Four great Talpur families" Jagir grant measuring the grant. 894 Jirebs according to the roll of 461‑31 according to calculation and 457‑29 according to survey measurement situated in Deh Ket, Taluka Jati is entered in the name of Mir Haji Ghulam Shah son of Wali Muhammad Shah Talpur under Serial No.

16. It appears from the Collector of Hyderabad's letter No. R‑2429 dated 21st February 1939 that the above Jagirdar died on 10th February 1938 leaving behind his only son Mir Khuda Bux Khan. As this Jagir is hereditary it is hereby ordered that it be regranted to Mir Khudabux Khan son of Mir Haji Ghulam Shah subject to the payment of cess at the rate leviable under the law for the time being in force, calculated annually on the assessable value of the Jagir and that his name may be entered in the records. (Sd.) ........ Collector of Karachi. To, (1) The Assistant Collector, Shah Bunder. (2) The Superintendent of Survey and Land Records, Sind. (3) Mir Khuda Bux Khan son of Mir Haji Ghulam Shah of Tando Bago (Hyderabad Sind)." The Collector of Hyderabad also recognised the right of Mir Khuda Bux. Mir Khuda Bux died on 28th October. 1955 in Tando Bago Town and this is evidenced by the certified copy from the Register of Births and Deaths produced on the record at page

25. The petitioner succeeded Mir Khuda Bux and by an order dated 3rd October 1956 Mr. A. M. Channa, Additional Deputy Commissioner Hyderabad ordered that the Jagir rights in the Jagirs held by Mir Haji Khuda Bux Khan Talpur be continued in the name of Mir Haji Abdul Husain Khan Talpur, (the petitioner) subject to the condition that the orders of the former Government of Sind regarding abolition of Jagirs in the Province of Sind will apply in case the High Court of Karachi Bench upholds the decision of the Government. The old Government of Sind by Resolution No. S‑162‑aa G/53 dated 8th February 1955 directed the Revenue Com missioner for Sind to issue formal notices to all persons the Province classified and entered in records as Jagirdars, cancelling with effect from the 8th February 1955, their Sanads under which the Jagirs were granted to them. This resolution is reproduced below ABOLITION OF JAGIRS IN SIND. GOVERNMENT OF SIND REVENUE DEPARTMENT Resolution No. S‑162‑11‑G/53. Sind Secretariat, Karachi, dated the 8th February 1955. The Government of Sind has been, for a number of years, now considering the question of abolishing Jagirs. The scrutiny of the Sanadg conferring the Jagir concessions in land, for the first time, or confirming such concessions granted by previous rulers, as well as the careful examination of the legal aspects of the case establish beyond any possibility of doubt, the competence of the Government of Sind to terminate the Jagiri rights in land which amount to no more than a transfer to the Jagirdar of the right of Government to levy assessment payable on the land. It is observed that the British Government at the time of the conquest of Sind, cancelled many Jagirs, created new ones and also confirmed some of the Jagirs bestowed during the previous regimes, but made the continuance of most of the Jagirs dependent upon the loyalty and good behaviour of the holders of these concessions and their successors. With the disappearance of the British rule, the Jagirs have become an historical anachronism. It is quite obviously inconsistent with the dignity and strength of an independent State, and a grave reflection on the patriotism and self‑respect of the Jagirdars themselves to perpetuate in this age a system which to all intents and purposes amounts to no more than securing by the State the loyalty of a small section of its citizens by payment of material consideration. Apart from this, to maintain and perpetuate a special privileged class, which came into existence as a result of circumstances no longer applicable to our present conditions, would be obnoxious to the directive principles of our new State and contrary to the ideas and sentiments of the modern age. The Government of Pakistan neither expects nor requires the performance of any services of Jagirdars, nor the compliance by the latter, with any of the varied conditions which govern the continuance of the privileges of Jagirdari. It will accordingly be wrong and inequitable to permit a few individuals to retain totally one sided advantage at the expense of public revenues. The circumstances leading to the creation of Jagirdari system having completely disappeared and the needs for specific services and fulfilment of conditions attached to the Jagirs having ceased altogether to exist with the establishment of Pakistan, there is no question of the Government of Sind not exercising its inherent right to discontinue without any compensation or a notice a system of Special privileges which has become both outmoded and entirely one‑sided. Govern ment are further satisfied that it is not legally necessary to achieve the said objective of abolition of Jagirdari by any legislation under the provisions of section 299 of the Govern ment of India Act, 1935, inasmuch as the resumption of Jagirs does not involve either compulsory acquisition of property or land or any rights whatsoever in or accruing out of the land. The Government of Sind is accordingly pleased to direct the Revenue Commissioner for Sind to‑ (a) issue formal notices to all persons in the Province classified and entered in records as Jagirdars, cancelling with effect from the 8th February 1955, their Sanads under which the Jagirs were granted to them. With the issue of these notices. Government shall levy full assessments on all the lands in respect of which the Jagirdars so far had been receiving assessment in terms of his Sanad. All these lands will simultaneously but temporarily, until the com pletion of the enquiry: be entered in the Record of Rights as held on ordinary occupancy tenure under the Land Revenue Code and become liable to pay all assessment in accordance with the settlement rates in force. (b) The occupancy rights in Jagiri land will be finally entered in the Record of Rights in the names of persons who after proper enquiry are found to be entitled to Zamindari rights in such lands. (c) With effect from Rabi 1954‑55, the present occupants will be responsible for payment of full revenue assessment and other Government dues and all bills of demand will be issued in their names in respect of the land under their occupancy till such time as the enquiry has been completed and claims on such lands are proved to be established by the claimants, if any. (d) In respect of the lands in which the Mukhadmi Zamindari rights are claimed by the Jagirdar or any members of his family on the basis of any documentary or other proof, the bills of assessment will, pending the determina tion of their claim, be presented to such Jagirdars ; but the Revenue Commissioner shall immediately undertake formal and detailed enquiries in respect of each such claim with a view to determining the accuracy of such claim on the part of the Jagirdar to Mukhadmi/Zamindari rights in land held by him. (e) All unsurveyed land forming part of Jagirs would be resumed forthwith. The Revenue Commissioner will take necessary measures immediately to get this land surveyed with a view to its grant in holdings of such size as may be determined by Government to Haris of these lands or to other persons on such terms as Government may lay down. (f) Where the Mukhadami/Zamindari rights are shown to vest neither in the Jagirdar nor in any person the land will be entered in the Record of Rights in the names of Haris to the extent of the area actually cultivated by them from year to year. The determination of the area so cultivated by each Hari will be the responsibility of the Collector of the District in which these lauds are situated and will be finally confirmed by the Revenue Commissioner. (g) Simultaneously with the entry of the Mukhadmis (whether Jagirdars or persons other than Jagirdars) in the Record of Rights as occupants, the Revenue Commissioner will so arrange as to ensure that the names of all Haris Maroosi and others are also at the same time recorded in the field books in accordance with the procedure already prescribed under the orders issued by the Revenue Department. (h) In cases where Jagirdars or their relatives or their dependents are left with no other source of livelihood or are old, infirm or female dependents of the Jagirdar, Government reserve to themselves the right of providing reasonable cash allowances for their maintenance out of the revenues of the Province. By order of the Governor of Sind. (Sd.) Bulchand R. Kriplani, for R. A. Mahamadi, Secretary to Government, Revenue Department." Consequently on 21st February 1955 a notice was issued to Mir Khuda Bux son of Mir Ghulam Shah informing him that the Sanad covering his Jagir in the Districts of Hyderabad and Thatta stands cancelled with effect from 8th February 1955. This order is also reproduced below :‑ No. S‑162‑11‑G/53. Karachi, dated the 21st February 1955. To Mir Khuda Bakhsh son of Mir Ghulam Shah. Subject :‑Abolition of Jagirsm Sind. Whereas the Government of Sind have abolished the Jagirs in Sind with effect from the 8th February 1955. Now, therefore, you are informed that the Sanad cover ing your Jagir in the Districts of Hyderabad and Thatta stands cancelled with effect from 8th February 1955. (Sd.) . Secretary to Government, Revenue Department, and Revenue Commissioner for Sind." The petitioner has challenged this order inter alia on the grounds that the abolition of the Jagir system by an executive order by the Sind Government without notice and/or compensation offends against section 45 of the Bombay Land Revenue Code, Act V of 1879, as adapted by Pakistan, and that it also violates the principles laid down in section 299 of the Government of India Act, 1935 as adapted by Pakistan The question, therefore, for our consideration is whether the old Government of Sind had any right to cancel the above mentioned Jagir by an executive order or whether they had any other power under which the said Jagir teas been cancelled and resumed. Prima facie the impugned order appeared to us to be an illegal order and therefore we called upon Mr. Brohi the learned counsel for the respondent, to show us the authority of the Government concerned to cancel the Jagir in dispute by an executive order. The learned counsel strenuously argued that the grant of Jagirs means the transfer by Government to some individual persons of their right to collect Government revenue in respect of particular areas of land, He pointed out that the Jagir system has its roots in antiquity It has been practised in Sind by successive Muslim dynasties When the British took over they found very extensive tracks of the country held in Jagir and they allowed very old Jagirs to continue, after resumption of part of holdings and granted them in perpetuity to the lineal male heirs. According to the learned counsel these grants automatically came to an end in August 1947 with the creation of Pakistan as a new ruling power ; and as land and land tenure are included in the Provincial List, the late Government of Sind, as a new ruling power, was competent to cancel or modify in any way it pleased the existing Jagir tenures The Government of Sind considered all Pakistan subjects to be loyal to the State and of good behaviour and they did not consider it necessary for the State to sacrifice any portion of its revenue to secure the loyalty of any particular section of its subjects. They also considered that the maintenance of a privileged class would not be in consonance with the principle equality of all subjects of the State, which is the foundation of democratic institutions that have been set up by Constitu tion. Economically also the continuance of the system was found to be undesirable. Relationship between Jagirdar Zamindar and Hari was generally bad and the abolition of Jagirdari was calculated to bring about better development of agriculture and improvement in the standard of living of the cultivators. The learned counsel for the respondent defended the impugned order in this background and further contended that the Jagir grant is in the nature of ex gratia conferment of favour by the ruling power upon the grantee, the continuance of which favour being made expressly subject to certain limitations. The Government had only assigned its own rights of collecting land revenue to the Jagirdar and thereby it had not conferred any right upon him as against itself. The Jagirdar has a right to receive land revenue from third persons so long as the Government allows him to do so. The Government in having resumed the grant of land revenue to the Jagirdar has not deprived him of any property and the principle of section 299 is not attracted to that situation. According to the learned counsel the conferment of Jagir is not land within the meaning of section 299 of the Government of India Act and therefore the contention that the resolution .of the Government is hit by section 299 (1) of the Government of India Act should not be entertained. The learned counsel in support of the Government Resolution relied on section 300 of the old Government of India Act and also on the inherent power of the Government to grant land by executive orders and to resume them by similar orders. The contention of the learned counsel in fact was that section 299 of the Government of India Act is applicable only to Legislative acts and section 300 of the Government of India Act recognised the right of the Government to resume Jagirs and other grants by executive action read with section 49 (2) of the Government of India Act. Before dealing with the most important question involved in this case it is desirable to consider the nature of the grant in this case to the ancestors of the petitioner. We have already reproduced the Sanad granted by the British Government to Mir Ghulam Muhammad Khan Talpur. A perusal of this Sanad brings out the following facts : (a) That Mir Ghulam Muhammad Khan Talpur was found to have been possessed at the conquest of Jagir land in this Province, and the British Government have determined that his position shall not be interfered with for the term of his natural life so long as he remains true and loyal. (b) Further, in consideration of his rank, it was ordered that from the whole amount of Beegahs in his possession the amount of 31,400 Beegahs be accorded to his lineal heirs male, failing whom, to the lineal male descendant of the Jagirdar recognised at the conquest free from all assessment except 5010 for roads and schools. In this amount no mo;‑: than 1/3 of his present possessions will have been resumed on account of waste land agreeable to custom and this allotment could not be chosen by him and marked off in communication with the Settlement Officer of the Government or reserved after consideration by his heir. (c) If there was sufficient waste land to cover the Government demand on that account; the Jagir was not required to give up 1" of productive soil ; the only provision being that a permanent Jagir consist of one consolidated and well‑defined land alienation where the possessions are contiguous and as far as practicable complete Makans. (d) As it has been the custom of the British Government to allow a regrant to the sons of the superior Jagirdars in Sind, found in possession at the conquest of all lands of which they were so possessed on payment of an assessment equal to produce or on resumption of a J of the whole amount of land option was given to either accept this settlement in his individual case or to postpone it until the occurrence of a second succession. (e) With respect to the payment of water rates, the Jagir is subject to the local rules in force to meet the Government expenditure on canals. Lastly, the Jagirdars were reminded that the British Government expects from them no service, yet it was expected that all good and faithful subjects of Her Majesty the Queen, whether Jagirdars or not, will render all assistance in their power on such occasions when such may appear desirable ; and it is natural to infer that those who hold certain revenues and benefits alienated to them or continued to them in alienation by the State should be the foremost proving themselves worthy of the privileges conferred upon them. The most important condition in the Sanad is that failing loyalty and good behaviour on his part or on the part of the successor of the Jagirdar, the Sanad could be revoked and the grant resumed. The learned counsel for the respondent invited our attention to a decision of the Sind Chief Court in Chimandas Kundanmal v. Kundanmal Alumal and others (I L R 1942 Kar. 559) in support of his contention that grant‑of Jagirs in Sind is nothing more than a grant of land revenue and does not include a grant of soil. In that case Lobo, J. held on consideratfon of the original grant and the history of the Jagir land in Deh Dero Dooru, that it was a dispute of the grant of land revenue only. The dispute related to a Jagir granted to, Seth Naoomal on 13th September 1860 and the operative part of the Sanad reads as under :‑ "Now according to your good services the order of the above Government No. 681 dated 20th January 1860 together with the order of the Government of Bombay No. 59 of 17th February 1860, as to the grant of the Jageer (the produce whereof would realise one thousand two hundred rupees per annum) was issued. Accordingly Deh Dero Dooru of the Talooka of Sehwan, boundaries whereof are set forth, has been granted by way of Jageer com mencing from Khureef 1271 in your name and your heirs in perpetuity from generation to generation without any trouble as long as you continue to show your loyalty and good wishes to Government. There would be no burden on the Jageer except a charge of 5 per cent for the expenses of schools and roads. You ought to be recovering from the Zamindars and Raj of the above Deh revenue assess ment according to the scale already fixed for them by Government so that there may not be more trouble to them, and considering that Government has given you the produce of the above Jageer purely out of kindness, you should continue firm in your loyalty to Government." The terms of that Sanad clearly indicated that what was granted to Seth Naoomal by way of Jagir was to collect Government revenue within the boundaries of the Jagirs and as Lobo, J. rightly pointed, the first of these expressions consists of the words "the produce whereof should realise rupees one thousand two hundred per annum", and also mentioned the date from which the revenue would be collected viz. from Khureef 1271. This decision is not of any assistance for the determination of the Jagir in the present case. The present Jagir, as has already been observed, is one of those that was confirmed in favour of one member of the four families of Talpurs in the Province of Sind. The terms of the Sanad in the present case is entirely different from the one under consideration in the above mentioned case. In the case of Secretary of State for India v. Laxmibai (1) it was held by their Lordships of the Privy Council that the quality of the grant was to be determined on the facts of each case and that there was no presumption one way or the other. In fact their Lordships of the Privy Council in this decision rejected the contention that if a grantee claimed that Jagir named Saranjam, conferred upon it a larger right, it was for him to prove the same. Up to the year 1923 the trend and decisions of the Bombay High Court were that the Jagir named Saranjam was a grant of royal revenue and conferred no interest in the soil on the grantee, but this view did not find favour with their Lordships of the Privy Council. In The Secretary of State for India v. Laxmi Bai and another (25 B L R 527 (P C)), their Lordships observed as under :-- "A grant of Saranjam may be either of the soil and the whole revenue derived from it, or a grant of the Royal Share of the revenue only. There is no presumption that a grant of Saranjam is a grant of Royal revenue only. It must be determined in each case upon the facts what was the quality of the original grant although it may be that it is ordinarily a grant of the Royal Revenue only. It was plain that the original grant was made in respect of political services ; but there was nothing in any of the documents produced which suggested that all that the grant was intended to give to the grantees was a release from payment of the royal share of the Revenue. On the contrary in one of the early documents founded on the grant, mention was made expressly of the Kasba Hebli (subject of the grant) with its hamlets and Watnhol, with the Mahal Jukath and Mokassa with the whole of the dues and cesses and hidden treasures, exclusive however of the dues of Hackdars and Inamdars' and the language of the other documents was in similar terms. It was significant also that in the deed of partition executed by the grandfather of the plaintiff in 1879 the property partitioned was described as the Jahagir villages of Kasbe Hebli and Majre Watanhal and the Mouza of Talvai and Kurdapur obtained from the British Government. Throughout the documents there was no suggestion that what was conveyed as merely the Royal share of the land revenue. They assumed that the whole revenue of the lands was conveyed to the grantees and the amount of the Nazarana which had been levied from time to time appeared to have been based on the yearly revenue of the estate, 'there being no suggestion that the revenue derived by the holder as occupant, as distinct from the Saranjamdar was not liable to Nazrana. Held : All these considerations are sufficient to justify the inference that the original grant was a grant of the soil". Therefore, in the present case the question whether the Jagir confers upon the holders the right to collect the Government share of revenue only or confers on him an interest in the A soil shall have to be determined on the terms of the original grant and the history of the Jagir. We have considered the effect of several other decisions of the Sind Court in respect of Sind Jagirs although they were not cited at the Bar. These decisions are in Seth Trikamdas v. Seth Thawardas (1), Mr. Jam Khan v. Lekhraj (2) ; Mir Sher Muhammad v. Jethomal (3) and Pir Makhdum and others v. Malik Boola Khan (4). The first two cases and the last case are single judge judgments but 14 S L R 1 is a Division Bench Judgment. Out of them in 14 S L R 1 the Sanad in dispute was of the nature granted to the four Talpur families in Sind. In 1 Selected Decisions (Sind Sadar Court) 89 Birdwood, J. was considering the same Sanad as in Chimandas Kundanmal v. Kundanmal Alumal and others (5). The learned judge on the terms of the Sanad observed that "he was unable to hold that there was any actual grant of land", and that "it does not appear from the Sanad that Government intended to grant the ownership of any waste land, nor is it clear from the evidence generally that in 1860 the Government understood that the ownership of waste lands in Sind vested in the State". But, he however, came to the conclusion that "Seth Naoomal was not an owner of the soil, yet he was nevertheless empowered by this Sanad to receive the revenue by which he is the grantee under circumstances and conditions which take the grant out of the operation of Act XXIII of 1871, as construed by the District judge and this Court". This view was based on the ground that "It is clear, from the evidence of Colonel Boulton, that the Government must all along have understood that after the grant of the Jagir and of authority to the Jagirdar to collect the assessment himself, no responsi bility attached to the officers of Government with refer ence to the revenue management of the land. In a famine year, for instance, if the Zamindars were unable to pay the Jagirdar any revenue, I do not suppose that the deficiency would be made good by Government". In 2 Selected Decisions (Sind Sadar Court) 41 the Jagir in dispute was of a member of one of the four Talpur families of Sind and the question for con sideration was whether the Jagirdar could also be a Zamindar. Whitworth; J. came to the conclusion "that the fact that the plaintiff was the Jagirdar did not militate against his claim (1) 1 Selected Decisions (Sind Sadar Court) 8) (2) 2 Selected Decisions (Sind Sadar Court 41) (3) 14 S L R 1 (4) AIR1921Sind109 (5) I L R 1942 Kar. 559 to be the Zamindar also". The learned judge while dealing with this matter made the following observations "Secondly, I see no warrant for the presumption of the general resemblance of Jagirs in Sind to Jagirs in the Presidency. In the first place, the circumstances of the grants in the two areas seem to have been ‑different. In the Deccan, according to Professor Wilson's Glossary, they were made 'for the support of troops or for personal service or to enable the grantees 'to maintain their dignity'. But of Sind it is stated (Alienations in Sind, I. p. 68) 'it was not here as in other countries where the chief nobility only had Jagirs ; almost every one in Government employ down to the commonest sepoy, and even menial servants, had Jagirs by way of pay in Sind. Again, the difference in the conditions of cultivation in the Presidency and in Sind creates another distinction, a distinction plainly indicated by the stipulation as to water rates in Sind Sanads. In the Presidency, where cultivation is by means of rainfall, all lands capable of cultivation are ordinarily assessed and occupied, and Jagirs ordinarily consist of the right of taking the rents from the cultivators ;but in Sind where the question of land being culturable or not is usually the question whether irrigation water can be brought to it, or not, Jagirs of waste land were frequent, and were even in some cases preferred (Alienations in Sind, I, 69). This distinction is very important in the present case, where the question is only whether the Jagirdar or the cultivator is the Zamindar. Thirdly, it is a complete mistake on the part of the judge to assume, as he does, that it is as Jagirdar that the plaintiff claims to be Zamindar. He does nothing of the kind. He is admittedly Jagirdar in respect of a great quantity of land ; he claims to be Zamindar in respect only of comparatively a very small quantity. Therefore, all references to his Sanad and to the limitations upon the rights of a Jagirdar are really out of place. Whether the plaintiff is Zamindar is a question distinct from the ordinary rights of a Jagirdar. At the same time, the fact that the plaintiff is Jagirdar has a certain bearing on the question whether he is Zamindar. But that bearing is entirely in his favour. It merely amounts to this that, where there is no existing Zamindar, the receiver of the grant in Jagir will probably himself acquire Zamindari rights." In 14 S L R 1 also the Sanad under consideration was one of the member of the four Talpur families. The dispute was between the Jagirdar and the Zamindar who by an agreement had stipulated that the Jagirdar will be bound to accept certain rates in cash and kind in consideration of the customary dues. The Jagirdar claimed enhanced cash rates and the question to be decided in appeal was whether the rights of the Jagirdar on the one hand and the Zamindars on the other were governed by the agreement or whether the plaintiff could set it aside and resort to the earlier system of Batai, The learned judge on the inter pretation of the Sanad observed : "This settlement is evidenced by the Sanads issued in 1861. In the case of the plaintiff's family the Sanad is in the form printed at page

442. The Preamble recites the reasons which moved the British Government to make the grant. The first paragraph confers a life‑estate on the existing incumbents in all the property then in their possession. The second paragraph confers upon the lineal male heirs a smaller estate of 70,000 Bigahs. The property now in suit is admittedly comprised in those 70,000 Bigahs, and the question is, what is the nature of the estate conferred. The plaintiff: is the grandson in the male line of the original grantee, and there are admittedly no sharers in the estate. Reading the Sanad in the light of the previous history, it is clear that there is expressed intention to confer any thing but an absolute estate. The only expressed condition is loyalty and good behaviour' on the part of the grantee and his successors. The appellant's pleader has laid stress on this condition as indicating that it was intended that the holder for the time being should have a life estate only. But it is not easy to see why a condition of continued loyalty is incompatible with an estate in other respects absolute. That the future support of the family was among the motives which induced the British Government to make the grant as recited in the Preamble, suggests no doubt an intention that the property should not be alienated, but the operative portion of the grant contains no restrictive condition of this nature. It was also somewhat faintly argued that where a grant was of the royal share of the revenue only there was a presumption that a life‑estate only was intended, but no authority was cited for a proposition which is certainly not self‑evident. It is unnecessary to set out in detail the passages in the History of Alienations on which the pleaders on either side have more specially relied. They have not been overlooked, but the general trend of the discussion shows beyond doubt an intention to confer an hereditary estate in perpetuity, and that appears to be the plain meaning of the Sanad." The learned judge at page 6 further observed :‑ "In the present case the only words in the Sanad which can be relied in support of the appellant's view are So that provision may be made not only to meet the present necessities but also for the future support of the sons and lineal male descendants of a certain member'. Can these words in the Preamble be held to control the grant so as to exclude the ordinary meaning of the words. It is ordered that the amount of 70,000 Bigahs be accorded to the lineal male heirs, which appear in the operative part of the document. The meaning of such words is laid down by the Privy Council in the second of the two cases cited Posibai v. Ishwerdas 1891 1 L R 15 Bom. 222 'where there is a grant to a man and his heirs and nothing to control the ordinary meaning of the words, the grantee takes an absolute interest'. The essential question is what was the intention of the grantor, and in this connection it is relevant to consider the view which was held at the time of the issue of the Sanad as to the right of a Jagirdar to alienate his land. The Sanad in the present case was issued on 23rd May 1861. During the discussion which preceded its issue the question of gardens was under consideration, and it is admitted that these holdings were treated as being on an entirely different footing from other holdings in Sind. The reasons need not be discussed. The fact is admitted. In 1858 (see page 371) the Government of Bombay wrote as follows :‑A garden being to a certain extent private property, the owner is at liberty to sell, transfer, give, or bequeath the same to any individual. The question of garden lands was referred to the Government of India at the same time as the general question of Jagirs, and the orders of the Government of India on both questions are contained in the No. 711 of 5th April 1859 (Pages 242 and 373). It is clear that those gardens were regarded as an exception to a general rule being to a certain extent private property' in contradistinction to the Jagirs which were originally held for the performance of public services. The orders of .the Government of India are contained in para. 17 of the letter last cited in the following words. Transfer cannot be allowed except in the case of garden lands'. It is therefore clear that at the date when the Sanad was issued there was no intention to restrict the Jagirdar's right of transfer. This could be done either by the terms of the grant, or by separate orders. The Sanad as has been seen contains no express condition forbidding alienations, and it would appear that it was not regarded as having that effect. It was in substance drafted by Mr. Inveracity, at that time Commissioner of Sind, (page 255). and in October 1861, after the issue of the Sanad, he writes. 'The question of exchange and transfer of any but garden lands in alienation should not be entertained except on very special grounds (page 278). It is hardly possible that these words should have been used had the Sanad itself been drafted with the object of preventing alienation. It seems fairly clear that the general power of the Government was considered a sufficient safeguard. It needs little knowledge of the early condition of Sind to know that in those days the Commissioner had power to make rules which had in practice at least the force of law. It was upon this power and not upon any condition attached to the grant that reliance was placed to prevent alienations by Jagirdars. The manner in which the rules framed from time to time have developed into the existing law is set out in the judgment of the learned District Judge. (See also pages 82, 423 and 424), It is therefore difficult to read into the Sanad a condition forbidding alienation. The conclusion appears to be that the intention of the grantors was to confer an hereditary estate in perpetuity, without imposing by the terms of the grant itself any condition restricting alienation. The lower Courts have therefore rightly held that there is an absolute estate. How far the remedial legislation which has, from time to time been introduced to relieve the position of indebted Jagirdars affects their powers over their estates need not be considered here, for it is not suggested that it has any application to the estate now in question. The necessity of such legislation is however an indication that the grantee is not restricted in the manner for which the appellant contends". And it was held that the effect of the agreement was to make a permanent commutation of the Jagir dues on a fixed cash basis. The last case on this question is reported in Pir Makhdum and others v. Malik Boola Khan (A I R 1921 Sind 109). In that case the Jagirdar obstructed his Zamindar to cut down trees from the jungle in his possession. It was contended that Jagirdar is the owner of the soil and therefore the Zamindar is not entitled to cut the trees and to enjoy its profits. The learned judge in that case held that the trees upon the land are part of the land and the right to cut down and sell those trees is incident to the proprietorship of the land". It was further held that "though there may have been originally nothing proprietary in the character of some Zamindars in Sind, yet the position was one which readily developed into a proprietary form". And the most important observation made in that case is :‑ "A Jagirdar is merely one who holds an assignment of the Government Revenue of certain lands. The land owner in Sind is called the Zamindar. The ordinary tenure in Sind is that of a Zamindar or landholder who exercises wholly or in part the privileges of the landholder and the extent of such privileges varies according to custom from that of an absolute proprietorship of the land, subject to the payment to Government of whatever may be customary Government share of the produce, down to that of an ill‑defined and often disputed claim to levy a lapo or rent on all cultivated land". This Jagir, however, was not in the same terms as the one under consideration. The Sanad in that case was in the same form as that which is given‑at page 439 of the History of Alienation, Volume

1. The learned judge relying on the observation of Birdwood, J. in (1882) 1 Sind Decisions 89 came to the conclusion that the grant was merely of land revenue and nothing else. He further traced the history of the First Class Jagirs in Sind and held that it shows beyond all possible doubt that what was then granted was not the owner ship of the soil but the assessment of other revenue which would otherwise have come to the Government. The learned judge then referred to the correspondence that passed between the various officers with the Government of India and observed that the Government of India clearly mentioned that the area of Jagirs was 4,75,123 Bigahs and the revenue involved Rs. 39,145 and therefore the alienation was clearly one of revenue and not of any ownership of the soil. In our opinion the present case is clearly distinguishable on facts from the one in 1921 Sind

109. In the first place the Jagir in that case was in the form of the Sanad for First Class Jagirdar. In that Sanad there is no mention of the waste land or the resumption of waste land. There is a definite statement that the Jagirdar was found possessed of certain lands and revenues and these were accorded to the Jagirdar but in the Sanad before us there is no mention of any revenue in the operative part of the Sanad. The operative portion clearly stipulates that in consideration of the Jagirdar's rank it was ordered that from the whole amount of Bighas in their possession, 31,400 Bighas be accorded to their lineal heirs male free from all assessment except 5 per cent. for roads and schools Secondly, the conclusions reached in that judgment are very much influenced by the corres pondence that passed between the officers in Sind, Govern ment of Bombay and the Government of India. These views cannot be applied to the Sanad granted to the four Talpur families in Sind. Their cases were considered separately and a reference to the correspondence passed between the various authorities are in a different trend. The report of Mr. Ellis regarding the Jagirs of the Four Families appears at page 210 of the History of Alienation in Sind, Volume 1, Bombay Government letter appears at page 219, Government of India Decision is at page 229 and Bombay Government explanation is at page

235. The decision of the Secretary of State for India dated 15th September 1859, appears at page

294. Para 2 of this decision is as under :‑ "

2. With reference to the Jagirs held by members of the great Baluch clan of Talpurs, to which the late reigning -- dynasty belonged, it has been resolved Talpur Jagirdars, to continue them to legitimate lineal male descendants free of all taxation, one‑third of the land being, however, resumed as uncultivated on the death of the present holder. The extent of land thus alienated is stated to be nearly sixteen lacs of Bighas, but much of it must consist of unproductive waste, as the revenue given up is estimated at little more than one lakh and a half of rupees". The view of the learned A. J. C. that as in the correspon dence that passed between the various authorities the amount of the revenue was mentioned and in the opening paragraph of the letter of the Secretary of State it was mentioned that he has considered the correspondence relating to the mode in which it is proposed to deal with alienated revenues of the Province of Sind, it should be inferred that the corpus of the grant was merely of land revenue can only apply to those cases, where the terms of the grant are vague, or where it can be justified on the terms of the grant. In our judgment the reference to "alienated revenue" in the opening part of the Secretary of State's letter, shows nothing more than that like other parts of India the modern concept of ownership namely that all lands are subject to the revenues of the State and that the State should not be deprived of its lawful fiscal dues was also in the process of introduction in Sind. This concept was latter on incorporated in section 45 of the Bombby Land Revenue Code. In effect the Government at that time was considering those lands which were going to be exempted from the payment of revenue under the provision of special contract with the Crown. The case of the four great Talpur families must be considered in the background of the proclamation of Sir Charles Napier made in 1847, under which they were assured that in the settlement of their Jagir he would allow them certain privileges not contemplated for other Jagirdars. This proclamation appears in Volume I of the History of Alienation to rind at page 210 and reads as under :‑ "

9. The 3rd paragraph of the proclamation is the one that more particularly bears on the present inquiry. It runs as follows :‑ With regard to the four families whose estates His Excellency promised to continue to descendants without the deduction of one‑fourth that is, those not for pay or civil services. These families, the Shahwani, Shahdadani, Khanani, and Manikani, who are poor, and held their Jagirs since Mir Fateh Ali's time or before, and their title to inherit which has never been disputed to them, their lands will be re‑granted as per rule, without looking to the dates of their Sanads. This favour is done them as their rank is high and noble, and also as the uncultivated land which they have to give up is of great extent". After a prolonged inquiry thirty‑one members were selected to get advantage of this proclamation and the Secretary of State decided that the lands of these Jagirdars will be free from the payment of revenue subject to other terms of the grant. Naturally in this inquiry the area of land and the revenue involved was bound to be taken into consideration and it was in that context that the word "Revenue" or the figure of revenue was referred and discussed. This by itself can not lead to the inference that what was ultimately conceded was merely the grant of the land revenue and not of the soil. We are fortified in this view by the actual decision taken in respect of Talpur Jagirdars. Para. 2 of this letter reproduced above clearly shows that the subject matter of the grant was land and in alienating these lands Government have given up or lost revenue "estimated at little more than one lakh and a half rupees". There is much force in the argument of the learned counsel for the respondent that if the Jagirdars were not granted land under these Sanads, what was the idea for making the provision to resume certain portion of the waste land on regrant to the heirs of Jagirdars. Lobo, J. in I L R 1942 Kar. 559 did not attach any importance to this aspect of the case acid rejected it following twp Bombay decisions reported in I L R 6 Bom. 598 and I L R 32 Bon.

432. But there is no presumption of the general resemblance of Jagir in Sin to Jagirs in the Presidency of Bombay. It would be most unfair to import the views of the Officers of the Bombay Government in respect of Jagirs in Deccan and Southern Marahatta Country relied upon in the Bombay decisions for the interpretation of the terms of grant of Jagirs in Sind, and we are not inclined to adopt this method for construing the terms of the grant in dispute. It cannot be denied that with the introduction of modern system of irrigation through well‑laid canals the waste lands were bound to come under cultivation and under the terms of the Sanad the Jagirdar were entitled to cultivate them and acquire the status of Zamindars. Whitworth, J. in II Sind Decisions (Sind Sadar Court) 41 recognised this right of the Jagirdar and we see no reason to differ from the view expressed in that decision. The best criterion to determine the nature of the grant is to ascertain from the terms of the grant the rights of the grantee in the land. If under the terms of the grant he is found to possess substantial interest in the land, besides collecting the land revenue, there is no doubt in our mind that such grant should be treated as also the grant of the soil. Judging the Sanad under consideration from this angle, it seems to us that the grantee under its terms is not only entitled to enter into agreements with the Zamindar to vary the terms on which the Jagir dues were recovered, but were also entitled to bring waste land under cultivation and to put them to more beneficial uses and to enjoy their enhanced value and profits. The only legitimate inference in these circumstances ought to be that the grant in question was also the grant of the soil. On a careful consideration of all the authorities and other material placed on the record, it appears to us that the corpus of the grant having been expressed in clear terms cannot and should not be abridged or curtailed by raising unwarranted G inferences when no reservations in that behalf have been made in the Sanad. The terms under consideration clearly stipulate that land was subject‑matter of the grant and that those lands were granted free from assessment. The operative part of the grant makes it perfectly clear that the rights of the Jagirdar in respect of land found in his possession at the time of conquest was recognised and that he was allowed to hold them free from land revenue subject to other terms. In our opinion there is a clear distinction between the assignment of land revenue and grant of Jagir land free from land revenue. It is admitted by Mr. Bulchand Rijhumal Kirpalani. Secretary of the Board of Revenue in the annexure along with his affidavit that "the grant of Jagirs means the transfer by Government to some individual person of its right to collect Government revenue in respect of particular area of land and also to cultivate and enjoy the produce of any Government 1 waste land included in the limits of the Jagir. In some cases the transfer of the right was also accompanied by grant of the land". We consider the Sanad in dispute as that of the Second Category and hold that subject to the terms of the Sanad in dispute the grantee has also been conferred proprietary interest in the land. Assuming for the sake of argument, that the grant in the present case was only of land revenue and not of the soil, even then the impugned order cannot be supported. The contention of the learned counsel for the respondent that section 300 of the Government of India Act recognised the right of the executive authority of the Federation or a Province to derogate from any grant or confirmation of title of or to land, or of or to any right or privilege in respect of land revenue, being a grant of confirmation made before the first day of January 1870, or made on or after that date for services rendered is not at all well‑founded. It was very strenuously contended by Mr. A. K. Brohi that before the introduction of the Government of India Act, 1935, there was an inherent power in the executive authority to derogate from any grant and to resume it by an executive order and this power was recognised under section 300 of the Govern ment of India Act with this exception that a condition was imposed, and the Governor‑General or the Governor, as the case may be, was authorised to derogate from any grant or other privileges in respect of land in the exercise of their individual judgment. He further contended that as soon as, under the Indian Independence Act of 1947, the power of the Governor‑General or the Governor to exercise their individual judgment was taken away, this section was omitted under the Adaptation Order issued by the Governor‑General of Pakistan in the year 1947. This, he suggested, did not change the inherent power of the executive authority to derogate from the grant and revived that power in its original shape and form. Mr. Brohi further contended that section 49 (2) clearly lays down that the executive authority of the Provincial Government extends to the matters with respect to which the Legislature of the Province has power to make laws, and therefore urged upon us that this subject being within the sphere of the Provincial Government, the executive authority could exercise it under its inherent power and could resume the land tinder an executive order. We have carefully considered this argument of the learned counsel for the respondent. This argument, though ingenious, has no merit. Section 300 of the Government of India Act was introduced because grants were always held by virtue of a specific undertaking given by or on the authority of the British Government that subject in some cases to the due observance by the grantees of specified conditions their rights and the rights of their successors will be respected either for all time or, as the case may be for the duration of the grant. It is not unnatural that the holders of these vested interests felt apprehension that the grant of responsible Government and the consequent handing over to the control of Ministers and Legislatures of all matters connected with land revenue should result in a failure to observe the promises which have been extended by Governments in the past. This protective provision was therefore introduced requiring the previous sanction of the Governor‑General or the Governor, as the case, may be, to any proposal, legislative or executive, altering or prejudicing the rights of the grantees. This constitutional provision in the Government of India Act does not go any further than this. It does not recognise the right of the Government to derogate from the grant or alter and prejudice the rights of the grantees by an executive order. We have not been able to discover any such recognition in this constitutional provision. Gwyer, C. J. in this connection observed in Venugopala Reddiar and another v. Krishnaswami Reddiar Raja Chidambara Reddiar and another (A I R 1943 F C 24) at page 33 as follows :‑ . "The purpose of section 300 (1) is, we should have thought, reasonably plain. There is power in certain circumstances to derogate from a Crown grant by mere executive act, without the intervention of the Legislature at all. Thus, to take a familiar example, it is a common practice in India to make grants of Crown lands with a condition that the land may be resumed at any time, if required for some public purpose. There would therefore be nothing illegal in the Governor of an autonomous province by a stroke of the pen resuming possession of lands so granted. This he would ordinarily do on the advice of the Minister concerned ; but the effect of section 300 (1) is that a Governor who received such advice from a Minister in connexion with the grants of land which are mentioned in that subsection would be doing nothing un constitutional if he declined to accept the advice. The holder of a Crown grant would therefore be protected against possible injustice, if (to take an extreme case) a Minister desired to carry out a confiscatory policy by means of his executive powers and without parliamentary debate or authority". The state of law on this subject has always been well -settled. In various parts of India the British Government granted Jagirs and Muafis to various individuals and class of individuals. Some of these grants date back from the time of the Moghuls and were confirmed by the British Govern ment. Some of them were granted by the British Government for services rendered to them. The terms of these grants differ from each other. Under the terms of these grants the Jagirs can be resumed on the breach of any of the conditions mentioned therein. In such cases, if the Government have reserved the right to resume the land or the Jagirs under the terms of the grant and there also happens to be a condition that the Government will be entitled to take possession of land or the property given under the grant without recourse to Courts of law, there is no doubt in our mind that on the basis of the Crown Grants Act of 1895, they would be entitled to resume the land and to take their possession, but if there is no such term in the grant itself, the executive authority certainly will not be entitled to resume the land or to cancet the grant and take possession of the property. This has been the view of the Indian Courts and has been recognised in some of the decisions of the High Courts. In Dattatraya Vishwanath Sulakhe v. Secretary of State for India and others (A I R 1949 Bom. 207) a similar question was under consideration. In that case certain lands were given as kazi inam by the Emperor in 1670. Those lands were mortgaged and the mortgagees came in possession of the property. The matter was brought before the District Deputy Collector, who ordered that the mortgagee should pay the difference between the assessment and the judi every year to Hafijoddin as long as the Kazi service was required or performed by him, In 1930 the mortgagee joined as member of the Barsi Municipality in passing a resolution protesting against the Government in arresting certain political leaders and stating that the Municipality agreed with the non co‑operation movement. As a result of that the Government passed a resolution that the Kazi imam lands should be resumed from Sulakhe and be given to the Kazi on the same terms. Accordingly possession of the suit lands was taken from the plaintiff and was restored to the officiating Kazi. The defence of the Government was that the holder of the property had committed breach of the conditions of the Sanad regarding loyalty and non‑trans ferability and took possession of the property. A Division Bench of the Bombay High Court in that case relying on the observations of another Bombay case reported in Patdaya Muppaya Miremath v. The Secretary of State of India (A I R 1924 Bom. 273). made the following observations :‑ "No doubt if a grant is made subject to certain con ditions, and if one or more of those conditions are broken, prima facie Government should have the right to have the grant terminated. But such right does not necessarily mean the power of terminating the grant by executive action. It may possibly be enforced, as pointed out above, by Government by filing a suit. In our opinion Govern ment had no power to resume the lands in suit in this case". To the same effect is the view expressed in Kunwar Sri T'ri Vikram Narain Singh v. The Government of the State of Uttar Pradesh and others (A I R 1956 All. 564). It was held :‑ "A grant can be determined by means of a suit or by a legislative enactment but it cannot be determined only by means of an executive act". In the present case it would be seen that the petitioner or his ancestor or Mir Kadir Bux from whom he claims the Jagir in question did not commit any breach of the conditions of the Sanad, and the predecessor of the respondent Govern ment has resumed the grant and cancelled the Jagir simply on the ground that it is desirable to do so in the interest of L the economy of the Province and to create better relationship between the Zamindar and the cultivator. There is no doubt in our mind that this action of the Government cannot be upheld on the argument advanced by Mr. Brobi. This argument is also fallacious in view of the provisions of section 299 of the Government of India Act. Section 299 of the Government of India Act reads as under :‑ "299. (1) No person shall be deprived of his property in British India save by authority of law. (2) Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined. (3) No bill or amendment making provision for the transference to public ownership of any land or for the extinguishment or modification of rights therein, including rights or privileges in respect of land revenue, shall be introduced or moved in either Chamber of the Federal Legislature without the previous sanction of the Governor -General in his discretion, or in a Chamber of a Provincial Legislature without the previous sanction of the Governor in his discretion. (4) Nothing in this section shall affect the provisions of any law in force at the date of the passing of this Act. (5) In this section "land" includes immovable property of every kind and any rights in or over such property, and "undertaking" includes part of an undertaking". Their Lordships of the Privy Council in Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another (A I R 1931 P C 248) observed at page 252 :‑ A suggestion was made by one of the learned judges that the order in this case was an act of State. This phrase is capable of being misunderstood. As applied to an act of the sovereign power directed against another sovereign power or the subjects of another sovereign power not owing temporary allegiance, in pursuance of sovereign rights of waging war or maintaining peace on the high seas or abroad, it may give rise to no legal remedy. But as applied to acts of the executive directed to subjects within the territorial jurisdiction it has no special meaning, and can give no immunity from the jurisdiction of the Court to inquire into the legality of the act. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a Court of justice. This very principle was incorporated in section 299 (1) of the Government of India Act. The learned counsel for the respondent, however, urged that section 299 (1) relates only to the legislative power of the Province or Federation and not to the executive power. There is no substance in this argument. This subsection is a general statement and is also of the nature of the Fundamental Right now guaranteed` under Article 15 (1) of the present Constitution. It gives, a clear guarantee that no person shall be deprived of his property except by authority of law. Mr. Brohi argued that section 299 (1) talks of "his property", which means that the property in dispute must be of the person against whom the order is passed. According to him, in the present case, the property in dispute really belonged to the Government and was only an ex‑gratia grant and they have a right to take it back whenever they like. We have already repelled this argument. Property is a very wide term and it includes not only the property itself but other interest also. In Jones v. Skinner (5 L J Chancery 87), it was observed at page 90 as follows :‑ "But it is well known, that the word `property' is the most comprehensive of all the terms which can be used, inasmuch as it is indicative and descriptive of every possible interest which the party can have". In Ma Yait and others v. Official Assignee (A I R 1930 P C 17), their Lordships observed at page 18 . "That is a very plain and ordinary settlement and it gives very plain and well understood rights to all the parties who benefit under the settlement : a vested right in the income contingent rights in the corpus ; and it appears to their Lordships to be plain that the contingent interest which the children took, whether they took it under Schedules 1, 2 and 3 or under Schedule 4 was something quite different from a mere possibility of a like nature of an heir‑apparent succeeding to the estate, or the chance of a relation obtaining a legacy, and also something quite different from a mere right to sue. It is a well‑ascertained form of property‑it certainly has been transferred in this country for generations‑in respect of which it is quite possible to raise money and to dispose of it in any way that the beneficiary chooses". In Minister of State for the Army v. Dalzill ((1943‑44)68 C L R 261), Rich, J. observed :‑ "Property in relation to land, is a bundle of rights exercisable with respect to the land. The tenant of an unencumbered estate in possession has the largest possible bundle". It would thus be seen that the word" property" in relation to land, is a bundle of rights, and therefore even if we accept the contention of the learned counsel for the respondent that in this case the Government granted only the right to recover land revenue for the maintenance of Jagirdar and his family, it will certainly be property within the meaning of~ section 299 (1) of the Government of India Act. There is also no force in the contention of the respondent that the grant in question along with other grants automati cally came to an end in 1947 on the creation of the New State of Pakistan and that the late Government of Sind as a new ruling power was competent to cancel or modify, in any way it pleased, the existing Jagir terms. This contention might have been advanced on behalf of a foreign conquering power on the plea that it was an Act of State. Pakistan is neither a foreign power nor a conquered territory but was created under the Indian Independence Act, 1947, and the impugned order cannot be justified on this ground also. A similar contention was negatived by their Lordships of the Privy Council in Eshugbayi Eleko v. Officer Administering the Government of Nigeria and another, which has been quoted above, Recently in a decision of the Supreme Court of India reported in virendra Singh and others v. State of Uttar Pradesh (A I R1954 S C 447) the same view has been expressed. Their Lord ships observed at page 454 :‑ "It was not denied that if the present action of the State cannot be defended as an act of State it cannot be saved under any provision of law. Whether the State would have the right to set aside these grants in the ordinary Courts of the land, or whether it can deprive the petitioners of these properties by legislative process, is a matter on which we express no opinion. It is enough to say that its present action cannot be defended. Article 31 (1) of the Constitution is attracted as also Article 19 (f). The petitioners are accordingly entitled to a writ under Article 32 (2). A writ will accordingly issue restraining the State of Uttar Pradesh from giving effect to the orders complained of and directing it to restore possession to the petitioners if possession has been taken". This contention of the respondent also fails. On the conclusion which we have reached in this matter it is our considered view that the respondent Government's order is definitely against the principle laid down in section 299 (1) of, the Government of India Act and by cancelling the Sanad in question they have taken away all the rights of the Jagirdar in the property in dispute and therefore they have deprived him of his valuable property. This they could not do without the authority of law. Mr. Brohi has failed to point out any provision of law under which the former Government of Sind could resume and take possession of the property in dispute or cancel the Sanad. There is no doubt in our mind that the action of the respondent Govern ment is not warranted by any provision of law and cannot be supported on the terms of the Sanad itself and therefore we hold that the resolution dated 8th February 1955 is illegal and has no legal sanction behind it. For the reasons given above, we would allow this petition and order the respondent Government not to implement their resolution dated 8th February 1955. The respondent Government will, however, be entitled to pass any legislation and to take other proceedings which they are entitled to take under the provisions of the Constitution for the resump tion of the property or for the acquisition of the property The respondent will bear the cost of the petitioner. A. H. Petition accepted