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PETITIONER: THE COLLECTOR OF BOMBAY

       Vs.

RESPONDENT: NUSSERWANJI RATTANJI MISTRI & OTHERS.

DATE OF JUDGMENT: 28/02/1955

BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN JAGANNADHADAS, B. SINHA, BHUVNESHWAR P.

CITATION:  1955 AIR  298            1955 SCR  (1)1311

ACT: Land  revenue-Assessment-Bight of Government  to  levy-Foras tcnure-Incidents-Foras Land Act (Bombay Act VI o@ 1851),  s. 2Land  acquisition,  effect of-Land Acquisition Act  (VI  of 1857),  s. 8 -Crown Grants Act (XV of 1857), s. 3-Scope  of- Bombay City Land Bevenue Act (Bombay Act II of 1876).

HEADNOTE: In the island of Bombay certain lands were held on a  tenure known  as "Foras".  Under s. 2 of Bombay Act VI of 1851  the occupants  were entitled to hold the lands subject  only  to the payment of revenue then payable.  Between 1864 and  1867 the  Government  of  India acquired these  lands  under  the provisions of the Land Acquisition Act (VI of 1857).  On 22- 11-1938  the Governor-General sold them to  certain  persons under  whom the present respondents claimed.  In April  1942 the appellant acting under the Bombay City Land Revenue  Act (Bombay  Act II of 1876) issued notices to  the  respondents proposing  to  levy  assessment on the lands  at  the  rates mentioned therein.  The respondents thereupon instituted two suits  disputing  the right of the appellant to  assess  the lands to revenue.  They contended that under the Foras  Land Act  the occupants had acquired the right to hold the  lands on  payment of revenue not exceeding what was then  payable, that the right to levy even that assessment was extinguished when  the  Government  acquired the  lands  under  the  Land Acquisition  Act, that the Governor-General having  conveyed the  lands absolutely under the sale deed  dated  22-11-1938 the respondents were entitled to hold them revenue-free  and that  even if revenue was payable it could not  exceed  what was payable under the Foras Land Act. Held,  (i)  that under the Foras Land Act (VI of  1851)  the occupants  of Foras lands acquired a specific right to  hold them  on payment of assessment not exceeding what  was  then payable. (ii) that the right of the Government to levy assessment was not  the subject-matter of the land acquisition  proceedings and  that  the  effect  of those  proceedings  was  only  to extinguish  the rights of the occupants in the lands and  to vest them absolutely in the Government.

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(iii)     that where there is an absolute sale by the  Crown it  does  not necessarily import that the land  is  conveyed revenuefree. The question is one of construction of the grant.  The  rule is  that a grantee from the Crown gets only what is  granted by the 168 1312 deed  and nothing passes by implication.  When the grant  is embodied in a deed the question ultimately reduces itself to a  determination of what was granted thereunder.  Section  3 of  the Crown Grants Act (XV of 1895) that "all  provisions, restrictions  conditions  and limitations  over  shall  take effect  according  to their tenor" does not apply  when  the question is as to the liability to pay revenue. (iv)that the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and  it was  incapable  of coming back to life when the  lands  were sold on 22-11-1938 and the respondents cannot claim a  right to  pay assessment only at the rate at which it was  payable under the Foras Land Act. Goswammi Shri Kamala Vahooji v. Collector of Bombay  ([1937] L.R.  64  I.A. 334), Shapurji Jivanji v.  The  Collector  of Bombay  ([1885] I.L.E. 9 Bom. 483, 488), Naoroji Beramji  v. Rogers  (4  Bom.   H.C.R.  1),  Deputy  Collector,   Calicut Division  v.  Aiyavu Pillay ([1911] 9 I.C. 341),  Dadoba  v. Collector  of  Bombay ([1901] I.L.R. 25  Bom.  714),  Thakur Jagannoth Baksh Singh v. The United Provinces ([1946] F.L.J. 88)  and Collector of Bombay v. Municipal Corpration of  the City of Bombay and others ([1952] S.C.R. 43), referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 74 of 1952. Appeal  by Special Leave from the Judgment and Decree  dated the  10th November 1948 of the High Court of  Judicature  at Bombay  in  Appeal  from Original Decree  No.  274  of  1945 arising  out of the decree dated the 17th March 1945 of  the Court  of  Revenue Judge, Bombay in Suits Nos. 7 and  23  of 1943. C.   K. Daphtary, Solicitor-General for India (Porus A.   Mehta, with him), for the appellant. M.   C.  Setalvad, Attorney-General for India and  Jamshedji Kanga,,  (R.  J. Kolah and Rajinder Narain, with them),  for the respondents. 1955.  February 28.  The Judgment of the Court was delivered by VENKATARAMA  AYYAR J.-The point for decision in this  appeal is as to the liability of certain lands situated within  the City  of Bombay to be assessed to revenue under  the  Bombay City  Land  Revenue Act No. II of 1876.   These  lands  were originally  known  as  Foras lands, and the  rights  of  the occupants of                             1313 those  lands  were  settled by Bombay Act No.  VI  of  1851, called the Foras Act.  What these rights are, is a matter in controversy  between  the  parties, and  will  be  presently considered.   Between 1864 and 1867 the Government  acquired these  lands for the purpose of the B.B. C.I. Railway  under the  provisions of Land Acquisition Act No. VI of 1857.   On 22-11-1938  these  lands, being no longer required  for  the purpose of the Railway, were sold by the Governor-General to Lady  Pochkhanawalla  and others as joint  tenants  under  a deed, Exhibit A. On 28-3-1939 the survivor of the purchasers under Exhibit A conveyed the lands in trust under Exhibit B,

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and  the respondents are the trustees appointed  under  that deed. In  April 1942 the appellant acting under the provisions  of Bombay Act No. II of 1876, issued notices to the respondents proposing  to  levy  assessment on the lands  at  the  rates mentioned therein, and calling for their representation.  In their  reply,  the  respondents  denied  the  right  of  the appellant to assess the lands to revenue, and followed it up by  instituting  two  suits before  the  Revenue  Judge  for establishing  their rights.  In their plaints, they  alleged that  under  the  provisions of the Foras  Act  the  maximum assessment  leviable on the lands was 9 reas per burga,  and that  the  Government had no right to enhance it;  that  the effect of the land acquisition proceedings between 1864  and 1867  was to extinguish the right of the State to levy  even this  assessment,  and that further,  having  purchased  the properties   absolutely  from  the  Governor-General   under Exhibit  A.  they  were entitled to bold  them  without  any liability  to pay revenue thereon. They  accordingly  prayed for  a declaration that the Government had no right to  levy any assessment on these lands, or, in the alternative,  that such  assessment  should not exceed what was  payable  under Bombay  Act  No. VI of 1851.  The  appellant  contested  the suit.   The Revenue Judge held that as a result of the  land acquisition  proceedings  between 1864 and 1867,  the  lands vested  in  the Government freed from any liability  to  pay assessment,  and that when the Governor-General  transferred them under 1314 Exhibit  A without reserving the right to assess  them,  the purchasers had the right to hold them without any  liability to  pay revenue.  He accordingly granted a declaration  that the appellant had no right to levy assessment, and -that the notices issued by him under Act No. II of 1876 were illegal. On appeal by the defendants to the High Court of Bombay,  it was held by Chagla, C.J., Bhagwati, J. concurring, that  Act No. VI of 1851 imposed a specific limit on the right of  the Government  to  levy assessments on the lands  in  question, that, further, by reason of the land acquisition proceedings the  right of the Provincial Government to  levy  assessment even within the limits prescribed by Act No. VI of 1851  was extinguished,  and that when the lands were  transferred  by the  Central Government to Lady Pochkhanawalla  and  others, they  got  them as revenue-free lands.  In the  result,  the appeal  was  dismissed.   This appeal by  special  leave  is directed against this decision. The  statutory authority under which the appellant seeks  to levy assessment on the lands is section 8 of Bombay Act  No. 11 of 1876, and it is as follows: "It  shall  be  the duty of the Collector,  subject  to  the orders of Government, to fix and to levy the assessment  for land revenue. When there is no right on the part of the superior holder in limitation  of  the  right  of  Government  to  assess,  the assessment shall be fixed at the discretion of the Collector subject to the control of Government. When there is a right on the part of the superior bolder  in limitation  of the right of Government, in consequence of  a specific  limit  to assessment having been  established  and preserved,  the  assessment shall not exceed  such  specific limit". It  was on the footing that the respondents  were  ’superior holders’  as defined in the Act, that the  appellant  issued notices  to them in April 1942.  In their reply notices  and in  the  plaints,  the  respondents  did  not  dispute  that

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position, but only contended in terms of section 8 that they had  a  specific  right in limitation of the  right  of  the Government to assess the                             1315 lands;  and the entire controversy in the Courts  below  was whether they had established that right.  No contention  was raised that they were not superior holders as defined in the Act,  and  that,  in consequence,  no  assessment  could  be imposed on the lands under section 8 of the Act. In  the argument before us, the contention was sought to  be raised  for the first time by the  learned  Attorney-General that the proceedings taken by the Collector under section  8 were incompetent, as that section would apply only to  lands held by superior holders, that the definition of  ’superior’ holier’  in section 3 (4) as meaning "the person having  the highest title under the Provincial Government to any land in the City of Bombay" would take in only persons who held on a derivative  tenure  from the Government,  that  persons  who acquired  lands from the Government under an  outright  sale could not be described as ’superior holders’ within  section 3  (4),  and  that the lands held by  the  respondents  were therefore outside the operation of section 8. On  behalf of the appellant, the learned  Solicitor  General objected to this question being allowed to be raised at this stage   of   the   proceedings,  as   that   would   involve investigation  of  questions  of fact and of  law,  such  as whether under the tenures in the City of Bombay, owners held the   lands  as  superior  holders,  whether  under   Indian jurisprudence what was paid by the occupier of land was rent or  revenue, whether the prerogative right of the  Crown  to assess lands subsisted in the Presidency Towns of  Calcutta, Bombay  and  Madras  and several other  questions,  for  the decision of which there were not sufficient materials.  This objection  must  be upheld.  In view of the  fact  that  the respondents  have,  at  all stages,  claimed  immunity  from assessment  on  the basis of section 8, we do  not  consider that  it would be proper to allow them now to  change  their front,  and  take up a stand wholly inconsistent  with  what they  had  taken, when that involves an  investigation  into facts which has not been made.  We must, therefore,  proceed on  the footing that the respondents are ‘superior  holders’ as defined 1316 in  section  3  (4) of Act No. 11 of 1876,  and  that  their rights are to be determined in accordance with sec- tion 8 of the Act. Construing  that  section, the Privy Council  laid  down  in Goswamini’ Shri Kamala Vahooji v. Collector of Bombay(1) two propositions: that though the language of the section  would more  appropriately  apply when the dispute was  as  to  the quantum  of  assessment’,  the right to levy  it  not  being itself  controverted,  it was open to  the  superior  holder under this section to plead and prove that the State had  no right to levy any assessment; and that the burden was on the person who pleaded a limitation on the right of the State to assess,  to clearly and unequivocally establish it.  It  is, therefore,  open to the respondents to plead that the  lands are  wholly exempt from revenue; but the onus of  making  it jut lies heavily on them. The learned Attorney-General has sought to establish a right in  the  respondents  in  limitation of  the  right  of  the appellant  to  assess the lands on three  grounds:  (1)  the Foras  Act  No.  VI  of  1851,  (2)  the  land   acquisition proceedings under Act No. VI of 1857, and (3) the sale deed, Exhibit  A.  Taking  first  the Foras  Act:  For  a  correct

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appreciation of its provisions, it is necessary to refer -Co the history of the lands, which are dealt with therein.  The Island  of Bombay once formed part of the  Portuguese  Domi- nions in India.  In 1661 when Princess Infant Catherine  was married  to King Charles 11 of England, it was ceded by  the King  of  Portugal to the British Crown as dowry, and  by  a Royal Charter dated 27th March 1668 King Charles 11  granted it  to  the  East India Company.  At that  time  the  Island consisted  only of the Fort and the town, and  "outside  the walls  of the town it was scarcely more than rock and  marsh which  became  a group of islands every day on  high  tide". Vide  Shapurji  Jivanji v. The Collector of  Bombay(1).   It appears from Warden’s Report on the Landed Tenures in Bombay and Le Mesurier’s Report on the Foras lands, that during the 18th Century the East India Company started (1) (1937) L.R. 64 I.A. 334. (2) [1885] I.L.R. 9 Bom. 483, 488, 1317 reclaiming  these  lands,  and invited  the  inhabitants  to cultivate  them, at first without payment of any  assessment and  subsequently on favourable rates.  These payments  were called "Foras".  The meaning of this word is thus  explained by Westropp, J. in his note at page 40 in Naoroji Beramji v. Rogers(1):- "  foras’ is derived from the Portuguese word fora   (Latine foras,  from  foris a door), signifying  outside.   It  here indicates  the rent or revenue derived from outlying  lands. The whole island of Bombay fell under that denomination when under Portuguese rule, being then a mere outlying dependency of  Bassein.  Subsequently the term foras was, for the  most part,  though perhaps not quite exclusively, limited to  the new salt batty ground reclaimed from the sea, or other waste ground  lying outside the Fort, Native Town, and  other  the more  ancient settled and cultivated grounds in the  island, or  to the quitrent arising from that new salt batty  ground and outlying ground". Thus, the salt batty lands reclaimed from the sea came to be known  as  Foras lands by association with  the  assessments payable thereon called "Foras".  The nature of the  interest which  the occupants had in the Foras lands was the  subject of considerable debate in the beginning of the 19th Century. In  1804,  the Company resumed some of the Foras  lands  for settling  persons  displaced  in the  Town  area,  and  that resulted  in  a suit by one Sheik Abdul Ambly,  wherein  the right  of  the Company to resume the lands  was  challenged. The  action  failed, the Court upholding the  claim  of  the Company  to resume them, but at the same time,  it  observed that its action in dispossessing the occupants would "appear and  be  felt  as a grievous hardship, if not  an  open  and downright  injury".   Vide  Warden’s Report  on  the  Landed Tenures of Bombay, pages 60 and 61.  Thereafter, the Company had the matter further investigated, and there were  reports on  the subject by Warden in 1814 and Le Mesurier  in  1843. And finally the Company decided to recognise (1)  4 Boni.  H.C.R. 1. 1318 the  rights  of  the ’Occupants, and that  resulted  in  the enactment of Act VI of 1851. The relevant provisions of the Act may now be noticed.   The preamble to the Act states that, "Whereas the East India Company are legally entitled to  the freehold reversion of the several lands heretofore paying  a render called foras, the outline whereof is delineated in  a plan and numbered 1, subject to certain tenancies therein at will,  or  from  year  to year;  whereas  it  is  considered

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expedient as of grace and favour that the rights of the said East India Company in all of the lands included in the  said plan should be extinguished, save as hereinafter  mentioned. It is enacted as follows:" Section 2 enacts that: "From and after the said 1st day of July, the rights of  the said Company in all of the said lands mentioned in the  said plan  No. 1, except those mentioned in the said plan No.  2, shall  be  extinguished in favour of the persons  who  shall then hold the same respectively as the immediate rent-payers to the said Company, saving the rents now severally  payable in  respect of such lands, which shall continue payable  and recoverable  by  distress,  or by any means  by  which  land revenue in Bombay is or shall be recoverable, under any  Act or Regulation Section 4 provides: "Nothing herein contained shall exempt such lands from being liable-to any further general taxes on land in Bombay  " According  to the appellant, the effect of these  provisions was  to  grant  the lands to the occupants  on  a  permanent tenure,  heritable and alienable, but not further  to  grant them on a permanent assessment.  Reliance was also placed on the  decision  in  Shapurji  Jivanji  v.  The  Collector  of Bombay(1),  where it was held generally that the  Government had  the  right under section 8 of the Act  to  enhance  the assessments on Foras lands.  There is some support for  this contention in the provisions of the Act.  The preamble (1)  [1885] I.L.R. 9 Bom. 483, 488.                             1319 expressly recites that the occupants were tenants at will or from year to year, and that the reversion was with the  East India Company.  One consequence of that was that the Company had the right to eject the occupants.  Now, what the Company did  under the Act was to give up that right as a matter  of grace,  because,  as already mentioned, it would  appear  to have invited them to settle on the lands and cultivate them, and it did that by extinguishing its reversion as  landlord. In  other  words,  it agreed to confer on  the  tenants  the status of owners of lands.  If that was all the scope of Act No.  VI of 1851, it could not be doubted that the rights  of the State to enhance the assessments would not be  affected, because  ownership of land does not per se carry with it  an immunity  from  enhancement  of assessment  in  exercise  of sovereign rights, and occupants of Foras lands cannot  claim to be in a better position by reason of the Act than  owners of  lands in ryotwari tracts, the assessments on  which  are liable  to  periodic  revision.  But  what  is  against  the appellant  is  that  section 2 does  not  stop  with  merely extinguishing  the reversionary rights of the  Company.   It goes  further, and saves expressly "the rents now  severally payable  in respect of such lands", rent being used here  in the  sense of assessment, and adds "which shall continue  to be payable".  Now, the contention of the respondents is that those  words conferred on the Government a right to  recover only  the assessment which was then payable, and that  there was  thus  a limitation on its right to enhance it.   It  is common ground that the assessment payable on these lands  at that time was 9 reas per burga, and Exhibit N shows that  it was at that rate that the assessment was collected from 1858 until  the  lands were acquired by the  Government  in  land acquisition  proceedings.  It is accordingly  contended  for the respondents that under the Act, the Government could not claim  anything more than 9 reas per burga as assessment  on the lands. It is urged for the appellant that the words "now  severally payable" could not be construed as impos-

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169 1320 ing  a limitation on the right of the Government to  enhance the assessment, as they occur in a saving clause, the  scope of which was to reserve the rights of the Company and not to confer on the occupants rights in addition to what the  body of  the  section had granted to them.  It is true  that  the setting  in which these words occur is more appropriate  for reserving rights in favour of the Company than for declaring any   in  favour  of  the  occupants.   But  to  adopt   the construction  contended  for by the appellant  would  be  to render  the words "now severally payable" and  "which  shall continue to be payable" wholly meaningless.  Notwithstanding that  the  drafting is inartistic, the true  import  of  the clause  unmistakably  is that while, on the  one  hand,  the right of the Government to recover the assessment is  saved, it is, on the other hand, limited to the amount then payable by  the occupants.  The contention of the  respondents  that under  the Foras Act they acquired a specific right to  hold the  lands on payment of assessment not exceeding  what  was then payable, must, therefore, be accepted We have next to decide what effect the proceedings taken  by the Government under the Land Acquisition Act No. VI of 1857 during  the  years 1864 to 1867 have on the  rights  of  the parties.  Section VIII of the Act is as follows: "When  the Collector or other officer has made an  award  or directed  a reference to arbitration, be may take  immediate possession  of the land which shall thenceforward be  vested absolutely  in the Government, free from all other  estates, rights, titles and interests". The  contention  of the respondents which has  found  favour with the Courts below is that under that section the  effect of  the  vesting  of  the lands in  the  Government  was  to extinguish  whatever  interests were  previously  held  over them,  that the right of the Government to  levy  assessment was such an interest, and that it was also extinguished.  It is  argued that when lands are acquired under the  Act,  the valuation  that is made is of all the  interests  subsisting thereon, including the                             1321 rights  of  the Crown to assess the lands, as  well  as  the interests of the claimants therein, that what is paid to the owners  is not the full value of the lands but the value  of their  interests therein, deduction being made of the  value of  the  right of the Government to assess from out  of  the full  value,  and  that, in effect, there was  an  award  of compensation  for the right to assess, and that,  therefore, that right equally with the rights of the claimants over the lands  would  be extinguished.  One of the awards  has  been marked  as  Exhibit  P,  and the  respondents  rely  on  the recitals therein that the compensation to the claimants  was "for their interest in the said lands".  The award, it  must be  mentioned, directs the Government to pay  the  claimants the amounts specified therein, but contains no provision for payment of any sum as compensation to the Government for its right  to  assess  the lands; nor does it  even  value  that right.   But the respondents contended that  the  Government being  the  authority  to pay must be deemed  to  have  paid itself,  and  that, in any event, if they were  entitled  to compensation, their failure to claim it could not affect the result, which was that the right to levy assessment would be extinguished. We   are  unable  to  accept  this  contention.   When   the Government  acquires lands under the provisions of the  Land Acquisition Act, it must be for a public purpose, and with a

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view  to put them to that purpose, the  Government  acquires the  sum total of all private interests subsisting in  them. If the Government has itself an interest in the land, it has only to acquire the other interests outstanding therein,  so that it might be in a position to pass it on absolutely  for public user.  In the Matter of the Land Acquisition Act: The Government  of Bombay v. Esupali Salebhai(1)  Batchelor,  J. observed: "In  other  words  Government, as it seems to  me,  are  not debarred from acquiring and paying for the only  outstanding interests   merely   because  the   Act,   which   primarily contemplates  all  interests  as  held  outside  Government, directs that the entire compen- (1)  [1909] I.L.R. 34 Bom. 618, 686. 1322 sation based upon the market value of the whole of     land, must  be  distributed  among  the  claimants".   There,  the Government  claimed  ownership of the land  on  which  there stood buildings belonging to the claimants, and it was  held that  the Government was bound to acquire and pay  only  for the superstructure, as it was already the owner of the site. Similarly  in Deputy Collector, Calicut Division  v.  Aiyavu Pillay(1), Wallis, J. (as he then was) observed: ’It  is,  in  my  opinion,  clear  that  the  Act  does  not contemplate  or provide for the acquisition of any  interest which  already belongs to Government in land which is  being acquired under the Act, but only for the acquisition of such interests  in  the  land as do not  already  belong  to  the Government". With  these observations, we are in entire agreement.   When Government  possesses  an  interest in  land  which  is  the subject  of  acquisition  under the Act,  that  interest  is itself  outside  such acquisition, because there can  be  no question  of  Government  acquiring what  is  its  own.   An investigation  into  the nature and value of  that  interest will no doubt be necessary for determining the  compensation payable  for the interest outstanding in the claimants,  but that  would  not make it the subject  of  acquisition.   The language of section VIII of Act No. VI of 1857 also supports this  construction.  Under that section, the lands  vest  in the Government "free from all other estates, rights,  titles and  interests",  which must clearly mean other  than  those possessed  by  the  Government.            It  is  on   this understanding  of the section that the award, Exhibit p,  is framed.   The  scheme  of it is that the  interests  of  the occupants are ascertained and valued, and the Government  is -directed to pay the compensation fixed for them.  There  is no  valuation  of  the  right  of  the  Government  to  levy assessment   on  the  lands,  and  there  is  no  award   of compensation therefor. We  have so far assumed with the respondents that the  right of the Government to levy assessment is an interest in  land within the meaning of section VIII (1)  [1911] 9 I-C-341.                             1323 of Act VI of 1857.  But is this assumption wellfounded?   We think not.  In its normal acceptation, "interest" means  one or more of those rights which go to make up "ownership".  It will include for example, mortgage, lease, charge,  easement and  the  like. but the right to impose a tax on land  is  a prerogative  right of the Crown, paramount to the  ownership over the land and outside it.  Under the scheme of the  Land Acquisition Act, what is acquired is only the ownership over the  lands,  or  the  inferior  rights  comprised   therein. Section  3(b)  of  the Land Acquisition Act No.  I  of  1894

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defines  a  "person interested" as  including  "all  persons claiming  an interest in compensation to be made on  account of  the  acquisition of land under this Act,  and  a  person shall be deemed to be interested in land if he is interested in an easement affecting the land".  Section 9 requires that notices should be given to all persons who are interested in the land.  Under section 11, the Collector has to value  the land,  and  apportion the compensation among  the  claimants according to their interest in the land.  Under section  16, when the Collector make an award "he may take possession  of the  land  which  shall thereupon  vest  absolutely  in  the Government  free  from  all  encumbrance".   The  word  "en- cumbrance"  in  this  section can  only  mean  interests  in respect  of which a compensation was made under section  11, or could have been claimed.  It cannot include the right  of the  Government  to  levy  assessment  on  the  lands.   The Government   is  not  a  "person  interested"   within   the definition in section 3 (b), and, as already stated, the Act does   not   contemplate  its  interest  being   valued   or compensation being awarded therefor. It  is  true  that there is in Act No. VI  of  1857  nothing corresponding  to section 3(b) of Act No. I of 1984, but  an examination of the provisions of Act No. VI of 1857  clearly shows that the subject-matter of acquisition under that  Act was only ownership over the lands or its constituent  rights and not the right of the Government to levy assessment.  The provisions  relating  to  the issue of  notices  to  persons interested 1324 and  the  apportionment  of  compensation  among  them   are substantially  the same.  Moreover, under section  VIII  the Government  is  to  take  the  lands  free  from  all  other "estates, rights, title and interest", and "interest"  must, in the context, be construed ejusdem generis with  "estates" etc., as meaning right over lands, of the character of,  but not   amounting  to  an  estate,  and  cannot  include   the prerogative right to assess the lands.  It must  accordingly be held that the effect of the land acquisition  proceedings was  only to extinguish the rights of the occupants  in  the lands  and to vest them absolutely in the  Government,  that the  right  of  the latter to levy assessment  was  not  the subject-matter  of those proceedings, and that if after  the award the lands were not assessed to revenue, it was because there  could  be  no  question  of  the  Government  levying assessment on its own lands. Then  there  remains  the question whether  the  sale  deed, Exhibit A, imposes any limitation on the right of the  Crown to  assess  the lands.  The deed conveys the  lands  to  the purchasers  absolutely  "with  all  rights,  easements   and appurtenances  whatsoever" to be held "for ever".   It  does not, however, recite that they are to be held  revenue-free. But it is argued for the respondents that where there is  an absolute sale by the Crown as here, that necessarily imports that the land is conveyed revenue-free; and section 3 of the Crown Grants Act No. XV of 1895 and certain observations  in Dadoba   v.  Collector  of  Bombay(1)  were  relied  on   as supporting this contention.  Section 3 of Act No. XV of 1895 is as follows: "All  provisions  restrictions, conditions  and  limitations over  contained in any such grant or transfer  as  aforesaid shall be valid and take effect according to their tenor  any rule of law, statute or enactment of the Legislature to  the contrary notwithstanding". The contention is that as the grant is of a freehold  estate without any reservation it must, to take effect according to

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its   tenor,  be  construed  as  granting   exemption   from assessment  to  revenue.   But that will  be  extending  the bounds of section 3 beyond its con- (1)  (1901] I.L.R. 25 Bom. 714,                             1325 tents.  The object of the Act as declared in the preamble is to remove certain doubts "as to the extent and operation  of the Transfer of Property Act, 1882, and, as to the power  of the Crown to impose limitations and restrictions upon grants and  other  transfers  of  land made  by  it  or  under  its authority".   Section  2 enacts that the provisions  of  the Transfer of Property Act do not apply to Crown grants.  Then follows  section  3 with a positive  declaration  that  "all provisions,  restrictions, conditions and limitations  over" shall  take  effect according to their tenor.   Reading  the enactment  as  a whole, the scope of section 3  is  that  it saves "provisions, restrictions, conditions and  limitations over"  which  would  be  bad under  the  provisions  of  the Transfer of Property Act, such as conditions in restraint of alienations  or  enjoyment repugnant to the  nature  of  the estate, limitations offending the rule against  perpetuities and  the  like.   But  no question arises  here  as  to  the validity  of  any  provision,  restriction,  condition,   or limitation  over, contained in Exhibit A on the ground  that it  is  in  contravention of any of the  provisions  of  the Transfer  of Property Act, and there is accordingly  nothing on which section 3 could take effect. It  is  argued  by the learned  Attorney-General  that  this limitation on the scope of the Act applies in terms only  to section  2,  and that section 3 goes much  further,  and  is general  and  unqualified in its operation.   The  scope  of section 3 came up for consideration before the Privy Council in Thakur Jagannath Baksh Singh v. The United  Provinces(1). After setting out that section, Lord Wright observed: "These  general  words  cannot be  read  in  their  apparent generality.   The  whole Act was intended to  settle  doubts which  had  arisen  as  to the effect  of  the  Transfer  of Property  Act, 1882, and must be read with reference to  the general context.............. In this view, section 3 must also be construed in the  light of  the  preamble,  and so construed,  it  cannot,  for  the reasons already given, have any bearing on (1)  1946 F.L.J. 88. 1326 the  rights  of the parties.  Moreover,  that  section  only enacts  that "all provisions, restrictions,  conditions  and limitations  over"  shall  take effect  according  to  their tenor,  and  what  is  relied  on  is  not  any   provision, restriction,  condition  or limitation over,  in  Exhibit  A which  according  to its tenor entitles the  respondents  to hold the lands rent-free, but the absolute character of  the interest conveyed under Exhibit A. Therefore, section 3 does not in terms apply. The  respondents  also  relied on  certain  observations  in Dadoba  v.  Collector  of  Bombay(1)  as  supporting   their contention.  There, the -facts were that the Government  had granted  one  parcel of land to the Free Church  Mission  of Scotland  revenue-free  under a deed  dated  1-10-1884.   By another  deed dated 20-12-1887 they released their right  of reversion  on two other parcels of land held by the  Mission as  tenants  but "subject to the payment  of  taxes,  rates, charges,  assessments leviable or chargeable in  respect  of the  said premises or anything for the time being  thereon". On  16-1-1888 the Mission sold all the three parcels to  one Janardan  Gopal,  and the Secretary of State joined  in  the

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conveyance  for effectually releasing the reversion  of  the Government.   Before  Janardan Gopal  purchased  the  lands, there had been correspondence between his solicitors and the Government  as to the assessment payable on the  lands,  and the  Government  had intimated that it would be 9  pies  per square  yard  per annum.  Subsequent to  the  purchase,  the Collector  raised the assessment payable on the  lands,  and the point for decision was whether he could lawfully do  so. In  deciding that he could not, Sir Lawrence Jenkins  stated that the purchaser had paid full value for the lands in  the belief  induced by the Government that the assessment  of  9 pies per sq. yard would be permanent, and that on the facts, the  case fell within section 115 of the Evidence  Act,  and that   the  Government  was  estopped  from  enhancing   the assessment.    He  was  also  prepared  to  hold  that   the correspondence  between  the purchaser  and  the  Government prior to (1)  [1901] I.L.R. 25 Bom. 714.                             1327 the sale amounted to a collateral contract not to raise  the assessment.   Chandavarkar, J., concurred in  the  decision, and in the course of his judgment observed: "....  when we have regard to the nature of the transaction, viz.,  that Government was selling the property  out-and-out as  any private proprietor-when we look to the whole of  the language  used  .... the intention of the  parties  must  be taken  to have been that the purchaser was to be  liable  to pay  the  amount of 9 pies per square yard  per  annum  then levied as assessment and no more". These  observations  have been relied on as  supporting  the contention  that  when  there is an  absolute  sale  by  the Government,  it  amounts to an agreement not  to  levy  more assessment  than was payable at that time.  But the  remarks of  the learned Judge have reference to the recitals in  the deed  dated  20-12-1887  and the  negotiations  between  the purchaser  and the Government which are referred to  in  the passage,  and  not to the character of the  transfer  as  an absolute  sale;  and the decision is based on a  finding  of estoppel   or   collateral  contract  deducible   from   the correspondence  between  the purchaser and  the  Government. Neither section 3 of the Crown Grants Act, nor the  observa- tions  in Dadoba v. Collector of Bombay(1) lend any  support to  the  contention that an absolute sale of  lands  by  the Government  ipso facto confers on the purchasers a right  to hold the lands free of revenue. The question then is whether on the, terms of Exhibit A such a right could be held to have been granted.  There was  some discussion at the Bar as to the correct rule of construction applicable  to  the deed, Exhibit A. It was  argued  by  the learned  Solicitor.  General for the appellant that being  a Crown grant, Exhibit A should be construed in favour of  the Crown  and against the grantee.  On the other hand,  it  was argued  by the learned Attorney-General that it should  make no difference in the construction of the grant, whether  the grantor was the Crown or a subject, as (1)  [1901] I.L.R. 25 Bom. 714. 170 1328 the  question in either case was what had been granted;  and that  must be determined on the language of the deed.   When closely  examined,  it will be seen that there  is  no  real conflict between the two propositions.  The former is in the nature  of a rule of substantive law; and its scope is  that where as the transferee from a subject acquires, unless  the contrary appears, all the rights which the transferor has in the  property  as enacted in section 8 of  the  Transfer  of

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Property  Act,  a grantee from the Crown gets only  what  is granted by the deed, and nothing passes by implication.  But when  the  grant  is  embodied  in  a  deed,  the   question ultimately  reduces  itself to a determination of  what  was granted  thereunder.   What  the  Court  has  to  do  is  to ascertain the intention of the grantor from the words of the document, and as the same words cannot be susceptible of two different  meanings,  it makes no  differenbe  whether  they occur  in  a grant by the Crown or by the subject.   If  the words  used  in a grant by a subject would be  effective  to pass an interest, then those words must equally be effective to pass the same interest when they occur in a Crown  grant. Dealing  with this question, Sir John Coleridge observed  in Lord v. Sydney(1): "But  it is unnecessary for their Lordships to say  more  on this  point, because they are clearly of opinion, that  upon the  true  construction of this grant, the  creek  where  it bounds  the land is ad medium film, included within it.   In so holding they do not intend to differ from old authorities in  respect  to  Crown grants; but upon a  question  of  the meaning  of  the words, the same rules of common  sense  and justice must apply, whether the subject-matter of  construc- tion  be  a grant from the Crown, or from a subject;  it  is always  a  question of intention, to be collected  from  the language   used   with   reference   to   the    surrounding circumstances’s. Exhibit  A  has  to  be construed  in  the  light  of  these principles.   As already stated, there is no recital in  the deed  that  the purchasers are entitled to, hold  the  lands free of assessment.  On the other hand, it (1)  (1859] 12 Moore P.C. 473, 496, 497; 14 E.R. 991, 1000. 1329 expressly  provides that the properties will be subject  "to the  payment of all cesses, taxes, rates, assessments,  dues and duties whatsoever now or hereafter to become payable  in respect  thereof",  which words would in their  natural  and ordinary  sense cover the present assessment.  In Dadoba  v. Collector  of Bombay(1), the Court had to consider a  clause similar  to  the above contained in a deed executed  by  the Government  in  favour of the Mission on  20-12-1887.   Dis- cussing  the  effect  of this clause on the  rights  of  the plaintiff to hold the property permanently on an  assessment of 9 pies per sq. yard, Chandavarkar, J. observed: "When that deed says that the property was sold ’subject  to the  payment  of  all  taxes,  rates,  charges,  assessments leviable  or chargeable’, it leaves the question open as  to what the taxes etc., are which are ‘leviable or chargeable’. Extrinsic  evidence  of that is admissible, for  it  neither contradicts  nor varies the terms of the deed, but  explains the  sense in which the parties understood the words of  the deed,   which,   taken  by  themselves,   are   capable   of explanation: see Bank of New Zealand v. Simpson (2) ". In that case, the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable, and it  was a possible view to take that the clause in  question was  not  decisive on that question, and that  it  was  left open.  But here, the question is whether a right was granted to  the purchasers to hold the lands free from liability  to be  assessed, and the clause in Exhibit A clearly  negatives such a right.  Even if we are to regard the question as left open,  as observed in Dadoba v. Collector of  Bombay(1),  it will   not  assist  the  respondents,  as  they   have   not established  aliunde any right to hold the lands  free  from assessment.   It must, therefore, be held that far from  ex- empting the lands from liability to be assessed to  revenue,

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Exhibit A expressly subjects them to it. It  was finally contended that even if the land  acquisition proceedings between 1864 and 1867 had not the (1)  [1901] I.L.R. 25 Bom. 714. (2)  1900 A.C. 182. 1330 effect of extinguishing the right of the Government to  levy assessment,  and  that even if Exhibit A  conferred  on  the purchasers  no  right  to hold the  land  revenue-free,  the assessment  which the Government was entitled to levy  under section  8  of Act No. II of 1876 was limited  to  what  was payable  under  the Foras Act No. VI of 1851, and  that  the appellant  had  no  right  to  levy  assessment  at  a  rate exceeding  the  same.   The  argument  in  support  of   the contention  was that it was an incident of the Foras  tenure under  which  the lands wore held, that the  occupants  were bound to pay only a fixed assessment, that the incident  was annexed  to the lands, and was inseparable  therefrom,  that between  the  dates when the lands were acquired  under  the Land Acquisition at No. VI of 1857 and 22-11-1938 when  they were  sold  under Exhibit A they continued to  retain  their character as Foras lands, that if no assessment was paid  on the lands during that period, it was because the hand to pay and  the hand to receive were the same, that when they  came to  the respondents under Exhibit A, they  became  impressed with  the Foras tenure, and that, in consequence, they  were liable to be assessed only at the rate payable under Act No. VI of 1851. This contention is, in our judgment, wholly untenable.  When the  lands were acquired under the Land Acquisition Act  No. VI  of 1857, the entire "estate, right, title and  interest" subsisting thereon became extinguished, and the lands vested in  the Government absolutely freed from Foras  tenure,  and when  they were sold by the Government under Exhibit  A  the purchasers obtained them as freehold and not as Foras lands. As the tenure under which the lands were originally held had become  extinguished  as a result of  the  land  acquisition proceedings,  it was incapable of coming back to life,  when the lands were sold under Exhibit A. In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of  the respondents,  the  learned Attorney General  relied  on  the following observations of 1331 Das,  J. in Collector of Bombay v. Municipal Corporation  of the City of Bombay and others(1):- "The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title  so acquired  as  is  the obligation to hold the  land  for  the purposes of a market and for no other purpose". But  the point for decision there was whether the  Municipal Corporation of Bombay could acquire by prescription a  right to  hold  the  lands rent-free,  they  having  entered  into possession under a resolution of the Government that no rent would be charged.  And the passage quoted above merely  laid down  that  when  title  to the land  was  acquired  by  the Municipal  Corporation  by prescription, one of  the  rights acquired as part of the prescriptive title ’was the right to hold the lands revenue-free.  But the question here is  whe- ther  the right to hold the lands under a  fixed  assessment survived  after the acquisition by the Government under  the land acquisition proceedings, and that depends on the effect of  section VIII of Act VI of 1857.  If, as observed in  the above  passage,  the  liability to pay  assessment  was  "an integral part or an inseverable incident of the title", then

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surely it was also extinguished along with the title of  the occupants under section VIII of Act No. VI of 1857. There  is  another difficulty in the way  of  accepting  the contention  of the respondents.  The Foras Act was  repealed in  1870  by Act No. XIV of 1870 long prior to the  date  of Exhibit  A,  and therefore, even if we hold that  the  Foras tenure revived in the hands of the purchasers under  Exhibit A,  the rights under the Foras Act were no longer  available in  respect of the lands.  Section I of Act No. XIV of  1870 saves rights "already acquired or accrued", and it is argued that  the rights now claimed are within the  saving  clause. But  as the lands had all been acquired under Act No. VI  of 1857  between 1864 and 1867 there were no rights in  respect of the lands which could subsist at the date of the  repeal, and the rights now claimed (1)  1952 S.C.R. 43, 52, 1332 by the respondents are not within the saving clause.  In the result,  it must be held that the right of the appellant  to levy assessment under section 8 of Act No. II of 1876 is not limited by any right in the respondents. We accordingly allow the appeal, set aside the judgments  of the  Courts below, and dismiss both the suits instituted  by the respondents with costs throughout. Appeal allowed.