1. B. A. SIDDIKY, C. J.-This judgment will dispose of First Appeals 8, 10 and 84 of 1959. Appeal No. 8 of 1959 arises out of Title Suit No. 12 of 1954/7 of 1957, Appeal No. 10 of 1959 arises out of Title Suit No. 33 of 1956/2 of 1958, and Appeal No. 84 of 1959 arises out of Title Suit No. 5 of 1951.
2. Yet another suit being Title Suit No. 26 of 1953/4 of 1957 was filed by the plaintiff out of which arises First Appeal No. 10 of 1958 which is not before us.
3. The aforementioned suits were filed by Maharaja Kirit Bikram Kishore Deb Barman of Tripura State, Agartala, against the Province of East Pakistan claiming certain sums of money.
4. The plaintiff's case in all these three suits was that his predecessors-in-interest were the owners of vast Zamindaris in the District of Sylhet as well as in some other Districts of East Pakistan. One of his predecessors-in-interest, Maharaja Birchandra Manikya Bahadur, Ruler of Tripura State, brought Title Suit No. 101 of 1886 in the Court of the Subordinate Judge, Sylhet in his proprietary right for specific performance of an agreement to lease in respect of some lands described in the Schedules to these suits and for other reliefs against one John Muir and others. The suit was ultimately transferred to the Court of the District Judge, Sylhet and was re-numbered as Title Suit No. 7 of 1886. The then Government of India, to safeguard' their interest, prayed to be impleaded in the suit as a defendant, and the Government's prayer being refused by the Court, the Secretary of State for India-in-Council brought Civil Suit No. 10 of 1886 in the Court of the District Judge, Sylhet, for a declaration that the lands described in Schedules I to V in the plaints of the present suits (which were the same in Suit No. 10 of 1886) were the absolute property of the Government and for confirmation of possession and other reliefs.
5. A Deed of Arrangement and Compromise was executed on 13-2-1897 between the Secretary of State for India-in---Council and Maharaja Radha Kishore Deb Barman Manikya Bahadur, the successor-in-interest of Maharaja Bichandra Manikya Bahadur, the plaintiff in Title Suit No. 101 of 1886/7 of 1886. The Deed of Arrangement was thereafter registered and the Civil Suit No. 10 of 1886 filed by the Secretary of State-in-Council was decreed and Title Suit No. 7 of 1886 brought by the Maharaja was dismissed. In terms of the said indenture dated 13-2- 1897, copy whereof has been exhibited in the suit being Exh. No. 10 (in Appeal No. 8 of 1959), the Secretary of State for India's title to and possession in the suit lands, referred to in the said Indenture inclusive of the lands referred to in the Schedules to the plaints of the present suits, was admitted by the Maharaja and it was further stated therein that the Maharaja neither had nor has any right, title, interest or possession or any other right in the said properties and in consideration thereof the plaintiff's predecessor and his successors were allowed certain deductions in payments in their Sadar Jama and were allowed to receive by way of compensation one equal half part or share of all not revenues and all not profits to be realised in future by the Secretary of State or his successors from all or any of the lands referred to in the said document from the Secretary of State or his successors. The terms of the Indenture dated 13-2-1897 were complied with by all the parties thereto and the Secretary of State for India-in-Council remained in possession of the lands and began to collect land revenue by leasing out the lands and also began to realise revenue from forests and the predecessors of the plaintiff were paid their share of the not revenues and not profits regularly. The obligation to pay under the Indenture of 13-2-1897 later on devolved on the Province of Assam which in its turn paid the dues of the Maharaja under the said Indenture. From the 15th of August 1947 the lands covered by the Indenture dated 13-2-1897 fell within the limits of the Province of East Bengal in Pakistan and since then the Province of East Bengal now East Pakistan being in possession have been realising revenues and forest incomes there from since the appointed day, i.e. The 15th of August 1947. By virtue of the provisions of the Indian Independence (Rights, Property and Liabilities)
6. Order, 1947, the Province of East Bengal in Pakistan is to pay to the plaintiff his share of not revenue and not profits derived from the said lands since that date, but since the defendant (The Province of East Pakistan) did not make any payment of the sum due to the plaintiff as the only successor-- -in-interest of the entire State of Tripura and the Zamindaris and all other properties and rights according to customs and usage and the laws of the Tripura State, the plaintiff filed Title Suit No. 5 of 1951 before the Sub-Judge, 2nd Court, Sylhet for the amount due up to 2F-2-1950 and 31-3-1950, as mentioned earlier, and the suit, after the withdrawal of the claim for pre-Partition period with permission to bring a fresh suit, was decreed with proportionate costs but without compensa-- petition. Thereafter, an appeal was brought to this Court, and this Court remanded the suit for retrial after giving opportunity to the plaintiff to bring in certain evidence. In the meantime, other suits were filed by the plaintiff, as mentioned above.
7. It is the further case of the plaintiff that the Zamindary of the plaintiff known as Chakla Roushanabad Estate situated in the Districts of Sylhet, Comilla and Noakhali in East Pakistan has been taken over by the Government of East Pakistan under the Provision, of the East Bengal State Acquisition and Tenancy Act, 1950 from 15-11-51 but no compensation Assessment Roll was prepared up to the date of filing of the suits and no payment of compensation was made up to that date. The lands described in the Schedules to the plaints, i.e. The lands in respect of which the Indenture dated 13-2-1897 was created, were not and could not be acquired by the Province of East Pakistan as the same were already in possession of the Government and the plaintiff was and is not a rent-receiver in respect thereof and was merely entitled to receive compensation for relinquishment of the rights referred to above as embodied in the Indenture of Arrangement and compromise dated 13-2-1897. According to the plaintiff, the defendant, the Province of East Pakistan, was bound in law and equity to render accounts to the plaintiff for the periods for which the suits have been filed and to make payment of the entire sums found due after proper accounting but in spite of the demands the defendant No. 1 has neither furnished any account nor made any payment of compensation due to the plaintiff for those periods.
8. The plaintiff, therefore, prayed in these suits for a decree for rendering of accounts by the defendant, the Province of East Pakistan, to the plaintiff for the years in suit in respect of receipts as land revenue and in respect of receipts by way of forest income of the lands in suits and a decree for such sum as was found due to the plaintiff. Other necessary prayers were also made in the plaints.
9. The defendant No. 1, the Province of East Bengal, as it then was, entered appearance, and filed written statements contesting all the statements made by the plaintiff in his plaints. One of the objections raised in the written statements was that the plaintiff was not entitled to proceed with the suits on account of the accession of the Tripura State to the Dominion of India. It was further contended by the defendant in the written statements that the obligation of the Secretary of State for India-in-Council created by the Indenture dated 13-2-1897 has not legally devolved on the Province of East Bengal as a result of Partition. Denials were given to other claims made by the plaintiff in his plaints.
10. All the three suits were decreed by the Court below for various sums of money.
11. Against those judgments and decrees, the Province of East Pakistan has preferred the present appeals.
12. It has to be seen whether the Maharaja of Tripura was entitled under the Indenture dated 13-2-1897 (hereinafter referred to as the Indenture) to receive any money from the Province of East Pakistan after the 15th of August 1947. In Suit No. 5 of 1951, the plaintiff did not make out a case that the Indenture relates to lands appertaining to the private Zamindary of the Maharaja known as Chakla Roushanabad Estate but later on he wanted to make out a case, after remand of the said suit by this Court, that the lands, in regard to which the Indenture was created, appertained to the Zamindary Chakla Roushanabad. It is, therefore, necessary to see from the records as to whether these lands, in fact, appertained to any of the private Zamindaris of the Maharaja of Tripura. Not a scrap of paper has been filed by the plaintiff to show that the lands in question appertain to any of the private Zamindaris of the Maharaja of Tripura, far less to the Estate known as Chakla Roushanabad. All that is found from the papers produced by the plaintiff that before Partition the amount due under the Indenture used to be deposited in the account of Chakla Roushanabad Estate in Sylhet. It is admitted by witness No. 1 for the plaintiff who is the law Agent of the Maharaja that the suit property was not the subject-matter of private Zamindary of the Maharaja lying within East Pakistan which is commonly known as Chakla Roushanabad. Thus, it will be seen that, except for the oral argument of the learned Advocate for the plaintiff-respondent before us to the effect that these lands formed part of the private Zamindary of the Maharaja, namely, Chakla Roushanabad, there is nothing on record to show that those in fact, appertained to the said Zamindary. The learned Advocate for the respondent drew our attention to Exh. 4(O) which is a letter from the Deputy Commissioner, Sylhet to the Manager, Chakla Roushanabad Estate, dated Sylhet, the 10th May 1928, wherein it is found that on and from 1928 the Government agreed to remit the share of the Maharaja under the Indenture to the Imperial Bank of India to the credit of his Highness's Chakla Roushanabad Estate's current account. This letter was in reply to a letter dated 24-4-1928 from the Manager, Chakla Roushanabad Estate, Tripura Raj, Agartala, to the Deputy Commissioner of Sylhet Exh. 4 which is in the following terms: "I have the honour to state that the present practice in your office for remitting His Highness the Maharaja's share of Revenue for the land, as well as the revenue realised from share of Forests, covered by the Balishira deed of compromise is to issue Remittance Transfer Receipt payable on the Tripura Treasury.
13. I would request you to be so good as to let me know whether it would in future be possible for you to remit the amount to the Imperial Bank of India to the credit of his Highness's Chakla Roushanabad Estate Current Account."
14. Instead of supporting the contention of the learned Advocate for the respondent that the lands in suit appertained to Chakla Roushanabad Estate these two letters, Exhs. 4(O) and 4(N), clearly show that the lands did not appertain to the Chakla Roushanabad Estate and that the money due under the Indenture was being paid up to 1928 from 1897 by Transfer Receipt payable to the Tripura Treasury when a request was made by the Manager of the Chakla Roushanabad Estate to remit the money to the Imperial Bank of India to the credit of His Higheness's Chakla Roushanbad Estate's current account. Thenceforward, if the money due to the Maharaja under the Indenture had been deposited in the Chakla Roushanabad Estate's current account in the Imperial Bank of India, it was not because the suit lands appertained to the Chakla Roushanabad Estate or to any private Zamindary of the Maharaja but because of the request made by the Manager of the Maharaja to the Deputy Commissioner, Sylhet, possible for the sake of convenience. These two letters, on the other hand, clearly establish that the money was being paid into the Tripura Treasury by the British Government until request to the contrary was made.
15. Exh. 6(b), a General Administration Report of the Tripura State for the year 1326 T. E. Equivalent to 1916-17 A. D. Was produced by the plaintiff to show that the lands in suit belonged to the private Zamindaris of the Maharaja but from neither this nor Exhs. 6(a) and 6(b) which are Reports on General Administration of the Tripura State it can be ascertained as to whether the suit lands appertained to either Chakla Roushanabad Estate or to any other private Zamindary or Taluk of the Maharaja at any point of time.
16. The basis for the claim of the Maharajas against the defendant No. 1 being that the suit properties appertain to his private Estates, it is necessary to look into the Indenture dated 13th February 1897.
17. The Indenture dated 13th February 18,)7 was created upon the following facts:- The then Maha-- raja of Tripura claiming proprietary right in the Balishira and Satgaon Dinarpur Hills attempted to settle lands thereon with one John Stanley Carr Larminie who subsequently sold his interest and it devolved by assignment upon John Muir and another on behalf of a firm named Finlay Muir & Co.
18. Which made over possession of some lands to a Tea Company known as the South Sylhet Tea Company Ltd. The lands in question were considerable. It was nearly 50,000 acres in all. John Muir and other members of the firm, named above, having not honoured the agreement with the Maharaja, the Maharaja filed Title Suit No. 101 of 1886 which was re-numbered as Title Suit No. 7 of 1886 for specific performance of contract. In that suit, the Government of India prayed to be added as a party defendant. The Court having refused the prayer of the Government, the Secretary of State for India-in-Council filed Title Suit No. 10 of 1886 in the Court of the District Judge, Sylhet, claiming proprietary right in the lands sought to be settled by the Maharaja with John Muir and others and for confirmation of possession. Title suit No. 7 of 1886 filed by the Maharaja was dismissed and Title Suit No. 10 of 1686 filed by the Secretary of State for India-in-Council was decreed but an arrangement and compromise was entered into between the Secretary of State for India, the Raja of Tripura Messrs Finlay Muir & Co. And the South Sylhet Tea Company Ltd. On the 13th of February 1897 and in the deed of compromise it was clearly stated that the Maharaja had no proprietary or any right in the suit lands sought to be settled by him with John Muir and others and that the lands belonged in absolute proprietary right to the Crown and that all agreements made by the Maharaja with John Muir and others were of no legal consequence and the Government of India as of right entered into fresh agreements with John Muir and others for the said lands. The recital in that deed clearly shows that the Raja accepted the position that he had no proprietary or any other right in the suit properties and he further agreed and declared that the Secretary of State, his successors and assigns should be deemed to be the owners and proprietor or proprietors of all the lands mentioned or referred to in clause No. 1 of Paragraph 6 of the Indenture. In the Second clause of the said paragraph, it is again clearly reiterated that the Rajah has no estate right or title (whether proprietary or of the nature of Jhum or Tipperah or Gurkati or Panishika or otherwise) in or to any of the lands, and in the third clause of the paragraph it is stated that the Rajah relinquished and gave up all claims to the said rights of Jhum Tipperah Gurkati and Panisbikha respectively in or over the said lands. Although the Rajah had no proprietary or any other right in the suit lands, yet to end all controversies and disputes between the parties, the Secretary of State in the 12th Clause agreed to pay one equal half part or share of all not revenue or rent payable and to be payable to the Secretary of State and his successors respectively in respect of all and existing and future grants or leases of all lands mentioned or referred to in clause No. 1 to the Raja. Thus, it will be seen, from what we have stated above, that the Maharaja of Tripura had no semblance of any right in the suit properties, before the Indenture was created and was not entitled to get any share of the revenue or profit out of them. The Maharaja of Tripura is, therefore, not entitled to claim the amounts for which the suits were filed in his capacity as a proprietor.
19. The Tripura State acceded to the Dominion of India on the 9th of September 1949 by an agreement made between the Maharajah of Tripura and the Dominion of India (Exh. 5). By this Instrument of Accession, the Maharaja relinquished all his right, title and interest in all properties of the State of Tripura which was taken over by the Government of India. All that was conceded to the Maharaja is to be found in Article II of the Instrument of Accession. According to this Article, the Maharaja was entitled to a privy purse payable out of the revenue of the State of the sum of Rupees three lakhs and thirty thousand only free of taxes. This amount was intended to cover all the expenses on account of his personal staff, maintenance of his residences, marriages and other ceremonies, etc. And was neither to be increased nor reduced for any reason whatsoever. This sum could be drawn by the Maharaja in four equal instalments from the State Treasury of Tripura. By Article III of this Instrument of Accession, the Maharaja was left with the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement. This Instrument of Accession was signed by Kanchan Prabha Devi, Maharani Regent Tripura State as Maharaja Kirit Bikram Kishore Deb Barman was a minor at that time. The Regent Maharani thereafter filed an inventory of the private properties of the Maharaja and Mr. V. P. Menon on behalf of the Ministry of States, Government of India, in his .Letter dated 9th September 1919 addressed to the Regent Maharani, gave the Schedule of the private properties which the Maharaja was entitled to retain in his ownership for his use and enjoyment. Item II of this Schedule is the Chakla Roushanabad Zamindaris situated in East Pakistan along with the buildings, vacant places and rights appertaining to that Zamindary. Nowhere in this Schedule attached to the letter of Mr. V. P. Menon of the Ministry of States, Govern--ment of India, dated 9th September 1949, the amount receivable by the Maharaja under the Indenture dated 13th February 1897 is mentioned.
20. Nor under Item 11 of this Schedule, where Chakla Roushanabad Zamindary . Is mentioned, the amount payable under the Indenture is mentioned. And there is no other document on record showing a different state of affairs This document (Exh. 5) which was filed by the plaintiff after Title Suit No. 5 of 1951 was remanded by this Court clearly shows that the money receivable by the Maharaja under the Indenture has not been treated as one of his private properties. This position is further clarified from the evidence of the Law Agent of the Maharaja, Babu Lal Mohan Dutta, Pleader (P. W. 1). In his cross-examination, Dr. Dutta has said: "The right to receive money from the Government from the suit property has not been specifically excluded from the deed of accession."
21. The Deed of Accession, as stated here, refers to Exh. 5.
22. Now, therefore, in terms of the Instrument of Accession, dated 9th September 1949 and the letter of Mr. V. P. Menon dated 9th September 1949, ,which contains the Schedule of private properties, the right to receive the money tinder the Indenture is not continuing with the Maharaja since the date of Accession of the Tripura State to the Dominion of India, and this right to receive the money, if it exists at all, which we will presently examine with reference to Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, has vested in the Government of India, and as such the present suits filed by the Maharaja in his private capacity are not maintainable.
23. Now, coming to the question as to whether under Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947 (hereinafter referred to as the order) the Government of East Pakistan is liable to discharge the contractual obligation under the Indenture, we may first refer to clause (1) of Article 8 of the order which is relevant for our purpose. It is in the following terms: "8.-(1) Any contract made on behalf of the Governor-General-in-Council before the appointed day shall, as from that day,-
(a) if the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor-General-in-Council; and
(b) in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor---General-in-Council; and all rights and liabilities which have accrued or may accrue under any such contract shall, to the extent to which they would have been rights or liabilities of the Governor-General-in---Council, be rights or liabilities of the Dominion of Pakistan or the Dominion of India, as the case may be."
24. Mr. Bhattacharjee, the learned Advocate for the respondent, referred us to the case of Pakistan v.
25. Waliullah Sufyani (PLD 1965 SC 310). Accord--ing to Mr. Bhattacharjee, clause (1) of Article 8 of the order makes the payment of the amount under the Indenture a legal obligation of the Government of East Pakistan as from the appointed day the contract is for exclusive purposes of the Dominion of Pakistan.
26. We are, therefore, of the view that the Maharaja of Tripura has no locus stand! To file the suits and claim any money from the Government of East Pakistan as his share of revenue and profits of suit properties for any period on and from the 9th September 1949, because the properties in suit do not appertain to any of his private properties or Zamindaris which he has been permitted by the Government of India to retain under Exh. 5 from the 9th of September 1949. We are also of the view that he is not entitled to claim money from the Government of East Pakistan for any period from the 15th August 1947 on the strength of the contract entered into by his predecessor-in-interest with the Secretary of State on the 13th February 1897, as the said contract is not one which is contemplated under sub-clause (a) of clause (1) of Article 8 of the Indian Independence (Rights, Property and Liabilities) Order, 1947.
27. For the reasons stated above, we allow the appeals of the Province of East Pakistan with costs set aside the judgments and decrees of the trial Court and dismiss the suits mentioned above filed by the plaintiff-respondent, the Maharaja of Tripura with costs.
28. ABDULLAH JABIR, J.-I agree.