State of Bihar & ANR Vs. Maharaja
Pratap Singh Bahadur  INSC 102 (11 April 1968)
11/04/1968 BACHAWAT, R.S.
CITATION: 1969 AIR 164 1968 SCR (3) 734
Bihar Land Reforms Act 30 of 1950-Notification
under s. 3 of Act vesting all estates in State-Permanent malikana payable to
Zemindar whether a proprietary or intermediary interestWhether subject to
The respondent was the proprietor of certain
estates in Bihar. He was also in receipt of a permanent malikana allowance from
the Government. After the passing of the Bihar Land Reforms Act 1950 followed
by a notification under s. 3 thereof the estates of the respondent vested in
the State of Bihar. In 1958 the State of Bihar stopped payment of the malikana
allowance on the ground that it was a proprietary interest which had vested in
the State. The respondent thereupon filed a petition under Art. 226 ,of the
Constitution. The High Court held that the respondent's right to the malikana
was not an intermediary interest and did not cease with the extinction of his
proprietary rights in the estate. The State of Bihar appealed to this Court.
The contentions raised on behalf of the
appellant were : (i) that the right to malikana was an interest in the estates
belonging to the respondent which on the issue of the notification under s. 3
became extinguished and (ii) alternatively, the respondent was an intermediary
of temporary settled estates in respect of which malikana was payable and on
the transference of his intermediary interests in those estates, his right to
the malikana stood extinguished and he became entitled only to the compensation
payable under s. 24A.
HELD : (i) The history of the malikana
allowance showed that it was a permanent grant of money in lieu of the
proprietor's rights in lands originally held by him. The proprietors retained
certain estates and it was only the interest in these estates that was lost on
the publication of the notification under s. 3. The malikana payable to the respondent
in the present case was not an interest in such estates and did not cease on
the issue of the notification.
[740 B] (ii) The respondent was not a
proprietor, tenure-holder or an intermediary of the estates in respect of which
malikana was paid to him. The malikana was not rent or income derived from
those estates. Nor was the malikana an incumbrance on them. The respondent's
right to the malikana was not an intermediary interest in the estates for which
compensation was payable under s. 24A and it did not therefore vest in the
Government. [740 H] Herranund Shoo v. Mst.Ozeerun & Ors., 9 W.R. 102,
Gobinda Chunder Roy Choudhuri v. Ram Chunder Chowdhury, 19 W.R. 95, Hurmuzi
Begum v. Hirday Narayan, 5 Cal. 921 and Jaggo Bai v. Utsava Lal, 51 AN. 439, distinguished.
Bhoalee Singh v. Mst. Neemoo Behoo, 12 W.R.
498, Syed Shah Najamuddin Hyder v. Syed Zahid Hossein, 8 C.L.J. 300, Maharaja
P. S. Bahadur v. State of Bihar, 18 Pat. 1018, Deo Kuar v. Man Kuar, 21 I.A.
148 and Mahendra Narayan Roy Chowdhuri v. Abdul Gafur Choudhry, 35 C.W.N. 1233.
State of Uttar Pradesh v. Kunwar Sri
Trivikram Narain Singh,  3 S.C.R. 213, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 157 of 1967.
Appeal from the judgment and decree dated January
7, 1960 of the Patna High Court in Misc. Judicial Case No. 693 of 1958.
C. K. Daphtary, Attorney-General, D. P.
Singh, R. K. Garg, S. C. Agarawala, K. M. K. Nair and S. P. Singh, for the
appellants. Sarjoo Prasad and D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by
Bachawat, J.-This appeal is directed against an order allowing a writ petition
under Art. 226 of the Constitution.
Maharaja Pratap Singh Bahadur was the
proprietor of the estates collectively known as the Gidhaur estate, in Monghyr
district. On the publication of a notification under s. 3 of the Bihar Land
Reforms Act, 1950 (Bihar Act XXX of 1950) on July 24, 1953 the Gidhaur estate
and the interests of the Maharaja therein vested in the State of Bihar. The Maharaja
was receiving a permanent malikana allowance of Rs.
5743/14/6 annually in two equal six monthly installments
as shown in annexure "A" to the writ application. The registers and
rolls of the recipients of the malikana maintained by the Collector of the
district since a long time past show that the successive proprietors of the
Gidhaur estate were receiving the malikana for a long time past. The State of
Bihar stopped payment of the malikana allowance from April 1, 1958 on the
ground that the proprietary interests of the Maharaja in the Gidhaur estate
vested in the State and consequently his right to the malikana was
The Maharaja alleged in 'the writ petition
that the permanent malikana was payable irrespective of his proprietary rights
in his estates notified under sec. 3 and was not income or rent from those
estates nor a charge or encumbrance on them. He alleged that 'the stoppage of
the payment of the malikana was illegal and asked for a writ directing the
State to make payment of the malikana.' The State did not file any return to
the petition. The High Court held that the Maharaja's right to the malikana was
not an intermediary interest in the Gidhaur estate and did not cease with the
extinction of his proprietary right in the estate. Accordingly, the High Court
issued a writ in the nature of mandamus commanding the State of Bihar to pay
the malikana due to the Maharaja from April 1, 1958. The State of Bihar has
filed this appeal on a certificate granted by the High Court.
Section 2 of the Bihar Land Reforms Act is
the definition section. Section 2(i) defines an estate to mean any land
included-under one entry in any of the general registers of revenue paying 736
and revenue free lands and includes a share of or in any estate. Section 2(jj)
defines an "intermediary" in relation to any estate or tenure to mean
a proprietor, tenure-holder, under tenure holder and trustee. Section 2(jjj)
defines an "intermediary interest" as meaning the interest of an
intermediary in an estate or tenure. Section 2(o) defines
"proprietor" to mean a person holding in trust or owning for his own
benefit an estate or part of an estate. Section 2(r) defines a "tenure
holder" to mean a person who has acquired from a proprietor or another tenure
holder the right to hold land for the purpose of collecting rent or bringing it
under cultivation by establishing tenants on it and includes inter alia the
holder of a tenure created for maintenance of any person. Section 2(q) defines
tenure to mean the interest of a tenure holder or under tenure holder.
Under section 2A the expressions
"proprietor or tenureholder" and "estate or tenure" mean
and include "intermediary" and the "intermediary interest"
Section 3(1) states that the State Government
may, from time to time, by notification declare that the estates or tenures of
a proprietor or tenure-holder, specified in the notification, have passed to
and become vested in the State.
Sections 4(a) and 23(1) are as follows :"
4. (a) Consequences of the vesting of an estate or tenure in the State.
Notwithstanding anything contained in any
other law for the time being in force or in any contract, on the publication of
the notification under sub-section (1) of section 3, or sub-section (1) or 2 of
section 3A the following consequences shall ensue, na mely (a) Such estate or
tenure including the interests of the proprietor or tenureholder in any
building or part of a building comprised in such estate or tenure and used
primarily as office or cutchery for the collection of rent of such estate or
tenure, and his interests in trees, forests, fisheries, jalkars hats, bazars
mela and ferries and all other sairati interests as also his interest in all
sub-soil including any rights in mines and minerals whether discovered or
undiscovered, or whether being worked or not, inclusive of such rights of a
lessee of mines and minerals, comprised in such estate or tenure (other than
the interests of raiyats or under raiyats) shall, with effect from the date of
vesting, vest absolutely in the State free from all encumbrances and such
proprietor or tenure holder shall cease to have any interests in such estate or
tenure other than the interests expressly saved by or under the provisions of
this Act." 737 .lm15 Section 24A(1) Determination of compensation of any
intermediary of temporarily settled estate-(1) In the case of such intermediary
of a temporarily settled estate, the Compensation Officer shall determine the
compensation payable in respect of the transference to the State of the
interest of the intermediary in such temporarily settled estate, whether let in
farm or held in khas, at a sum equal to twenty times of the malikana payable to
him during the previous agricultural year and, where the intermediary has taken
out the engagement of the lands comprised in such estate for a fixed period on
the payment of a fixed jama, also a sum equal to the pro rata refund of the
fixed jama paid by him for the unexpired period of the engagement." It may
be noted that ss. 2(ii), 2(iii), 2A and 24A were inserted in the parent Act by
the Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act XX of 1954). Section 4
was also amended by the same Act.
Learned Attorney-General contended (1) that
the right to the malikana was an interest in the estates called the Gidhaur
estate specified in the notification of July 24, 1953 and on the issue of the
notification the right to malikana stood extinguished and (2) alternatively,
the Maharaja was an intermediary of temporary settled estates in respect of which
the malikana was payable and on the transference of his intermediary interests
in those estates, his right to the malikana stood extinguished and he became
entitled only to the compensation payable under see. 24A.
Regulation VIII of 1793 (sec. 43) described
malikana as an allowance to proprietors in consideration of their proprietary
rights. Baden-Powell's Lands Systems of British India, Vol. II,. p. 717 said
that malikana in Bengal and places other than the Punjab usually means an
allowance to an ex-proprietor by way of solatium for a lost right.
The custom of 'Paying malikana allowance to
displaced proprietors may be traced back to the Moghul period. "The claims
of the ancient zemindars and village headmen, when thus displaced were usually
recognised to the extent of giving them an allowance for subsistence, and
sometimes they continued to receive this allowance in the shape of payments
from the new occupants called russoomi-zemindaree." (See Phillips on Law
Relating to the Land. Tenures of Lower Bengal, p. 126). It was said that
"Malikana is the unalienable right of proprietorship." (see the
answer of Ghulam Hosein Khan, Appendix No. 16 to Mr. Shore's Minutes of 2nd
April 1788 quoted in C.D. Field's Regulations of the Bengal Code p. 717). The
Regulations from 1788 onwards recognised this custom/. Regulation VIII of 1793,
secs. 43 to 738 47 provided that in the event of the proprietor refusing to
accept a reasonable settlement his lands were to be let in farm or held khas.
When the lands were let in farm, the farmer was to engage to pay 10% of the
jama as malikana to the excluded proprietors in addition to the jama and the
Government was to be considered ,as guarantees for the payment. The malikana
was realisable from the farmer as arrears of revenue. When the lands were held
in khas 10% of the net collections was to be paid as malikana from the
treasury. Section 5 of Regulation VII of 1822 repealed the existing regulations
regarding malikana and substituted fresh provisions for such allowance. The new
provisions were declared by section 11 of Regulation IX of 1833 to be
prospective only and to be applicable solely to the settlements made under
them. (see Clarke, Regulations Vol.
I p. 71). Regulation VII of 1822 was
,originally enacted for the ceded and conquered Provinces, Cuttack, Pataspur
and its dependencies. It was extended to other Provinces by sec. 2 of Reg. IX
of 1825. Later it was repealed as regards the North Western Provinces by Act
XIX of 1873 and fresh provisions for allowance to displaced proprietors were
substituted. The malikana was for a term of years when the proprietors were
dispossessed from management temporarily.
It was a permanent grant when the
proprietors' rights in their lands were ,completely extinguished.
The decisions under the Limitation Acts
relating to the malikana turned on the particular language of those Acts.
Clause 12 of S. 1 of the Limitation Act of
1859 seemed to make it imperative on the courts to deal with malikana as an
interest in land and to treat a claim for it as barred if not made within a
period of 12 years after the last receipt by the proprietor. (see Herranund
Shoo v. Mst. Ozeerun & Ors. (1),, Govinda Chunder Roy Choudhuri v. Ram
Chunder Chowdhury(2). But under the Limitation Act of 1877 the nonreceipt of
malikana for 12 years did not extinguish the right and malikana could be sued
for within twelve years from the time when it became due. (see Hurmuzi Begum v.
Hirday Narayan(3). In Jaggo Bai v. Utsava
Lal(1) the courts below treated malikana as immovable property and since the
point as to its not being immovable property was not taken earlier, the Privy
Council did not allow the point to be taken before it for the first time.
Nevertheless the Privy Council held that a suit to establish a right as to malikana
was not a suit for possession within the meaning of art. 141 and was governed
by art. 120 ,of the Limitation Act of 1908.
Though malikana is not a charge ,on immovable
property the explanation to art. 132 of that Act declared that for the purposes
of that article, it was "deemed" to be money charged on immovable
(1) 9 W. R. 102. (2) 19 W.R. 95.
(3) 5 Cal. 92 1. (4) 51 Allahabad 439.
739 Malikana is not rent. (see Bhoalee Singh
v. Mst. Neemoo Behool(1) and Syed Shah Najamuddin Hyder v. Syed Zahid Hossein(1).
It is not rent or revenue derived from land and not assessable as agricultural
income. (Maharaja P. S.
Bahadur v. State of Bihar(3). In Deo Kuar v.
Man Kuar (4) malikana was described as a grant of a portion of a land revenue.
For purposes of the Pensions Act, 1871 because sec. 3 of the Act interpreted
the expression "grant of money or land revenue" to include anything
payable on the part of the Government in respect of a right. The Privy Council
held that malikana was something payable on the part of Government in respect
of a right and therefore a suit relating to malikana was not cognizable by the
court without a certificate from the Collector. The plea of bar under the
Pensions, Act is not taken in the present appeal.
Malikana is not an incumbrance on the estate
of the proprietor liable to pay it and is not extinguished on the sale of that
estate for recovery of arrears of land revenue under Act XI of 1859. (see
Mahendra Narayan Roy Chowdhuri v. Abdul Gafur Choudhury (5) . The person in
receipt of a permanent malikana is, not a proprietor of the estate for which
malikana is payable and has no title to the alluvial accretion to the estate,
(see Soudamini Dassya v. Secretary of State for India (6) The proprietors of
the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a
century. The origin of this malikana allowance is not known. From time
immemorial it has been customary in Bihar to pay a permanent malikana allowance
to ex-proprietors in lieu of their lost proprietary right. Phillips in his Law
Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the
proprietors of the soil in Biharuniversally claimed and possessed a right of
malikana and he endeavoured in vain to trace its origin in Bihar. The malikana
right of the excluded proprietors in Bihar was acknowledged in the Regulations
passed on August 8, 1788. At the time of Permanent Settlement, the new grantees
were forced to acknowledge this right. (see Baden-Powell, Land-System of
British India, Vol. I pp. 516, 517). The Bihar Board of Revenue Misc. Rules
1939, art. 342 p. 166 divides' malikana into two classes. Malikana of the first
class is for a term of Years only, that is, during the currency of a
Malikana of the second class is permanent. It
states that "the Bihar malikana falls under this class and is a
compensation permanently granted to the proprietors ... It is of a pensionary
nature and does not depend upon collections." The permanent malikana is
payable at the treasury on (1) 12 W.
(2) 8 C. L. J. 300 at 450.
(3) 18 Patna, 101 8.
(4) 21 1. A. 148,160,161.
(5) 35 C. W. N. 1233.
(6) 50 Cal. 522,538, 545.
740 April 1, and October 1, every year on
presentation of pay orders issued by the Collector accompanied by a life
certificate of the recipient.
There can be no doubt that the malikana
payable to the proprietors of the Gidhaur estate is a permanent grant of money
in lieu of their proprietary rights in lands originally held by them. The
proprietors retained certain estates. On the publication of the notification
under s. 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in
those estates was extinguished. But the malikana payable to him is not an
interest in those estates and did not cease on the issue of the notification.
Annexure A to the writ application shows that
cess was deducted from the malikana. Under secs. 5 and 421 of the Cess Act.,
1880 cess is charged on immovable property and is payable by the holder of an
estate or tenure or chaukidari chakran lands and by a cultivating raiyat. It is
not known under what circumstances cess used to be deducted from the malikana.
From the fact that cess was so deducted it is not possible to hold that
malikana is an interest in the estates held by the Maharaja.
In this Court the appellant raised the second
contention for the first time. The learned Attorney-General contended that the
malikana was payable in respect of certain other estates, that the Maharaja
should be regarded as an intermediary of those estates, and that on the vesting
of those estates in the Government the right to malikana ceased and the
Maharaja 'became entitled to compensation only under sec. 24A of the Bihar Land
Reforms Act, 1950. The State of Bihar has filed a petition asking for an ,order
admitting certain documents as additional evidence. We have allowed this
petition. The first document is a letter of the Collector, Monghyr, stating
that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in
the margin. The second document is the khewat of those tauzis.
They show that various persons other than the
Maharaja were the proprietors of the estates comprised in the tauzis. The
petition states that all these estates have been notified under sec. 3 and have
now vested in the State-Government.
The third document is the notification
published on July 24, 1953 showing the estates of which the Maharaja was the
proprietor and which have now vested in the State Government. On the
publication of the notification under sec. 3, all the estates in respect of
which the malikana is payable including the interest of any intermediary
therein vested in the Government free from all incumbrances. But the Maharaja is
not a proprietor, tenure holder or an intermediary of those estates. The
malikana is not rent or income derived from the estates. Nor is his Tight to
the malikana an incumbrance on them. The Maharaja's right to the malikana is
not an intermediary interest in the estates 741 and did not vest in the
Government. Consequently he has no right to claim compensation for the malikana
under s. 24A.
That section provides for determination of
compensation payable to the intermediary of a temporarily settled estate is
respect of the transference to the Government of the interest of the
intermediary in such estate. The Maharaja had no intermediary interest in the
estates for the transference of which he could claim any compensation under
In State of Uttar Pradesh v. Kunwar Sri
Trivikram Narain Singh (1) this Court held that an allowance of a fixed sum of
money computed on the basis of 1/4th share of the net revenue of certain
estates payable by the Government to the ex-jagirdars as compensation for
abandonment of their right in those estates was not a right or privilege in
respect of land in any estate or its land revenue within the meaning of S. 6
(b) of the Uttar Pradesh Zemindari Abolition and Land Reforms Act, 1951, and on
the issue of a notification vesting those estates in the Government the right
to the allowance did not cease. The allowance in that case was described as a
pension. It may be that the allowance was not strictly a malikana. Nevertheless
the case is instructive. It shows that an allowance paid to exjagirdars in
consideration of the extinction of their rights in land is not an interest in
the land. The permanent malikana stands on the same footing. It is an allowance
paid to ex-proprietors for extinguishment of their right to the estate formerly
held 'by them. It is not an interest in that estate, nor an incumbrance on it,
and does not cease on the vesting of the estate in the Government.
In the result, the appeal is dismissed with
G.C. Appeal dismissed.
(1)  3 S. C. R. 213, 226-228.