TaxTMI 
TaxTMI 
1872 (8) TMI 1
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....d, proceeds to describe the grounds of the Defendant's liability in the following words: The Defendant, owing to the late mutiny, confiscated all the landed estate of the late King, but by a Circular, No. 112, of the Judicial Commissioner of these provinces, under the orders of the Supreme Government, all mortgages effected by the late King on those estates which the Defendant has confiscated are to be paid. The Plaintiffs having failed in their application to be reimbursed, as will be seen by the proceedings regarding their claim, and having been referred to law to obtain their remedy, are S necessitated to file this suit, and pray that a summons may issue, against the Defendant, and he be declared to pay the amount claimed with interest at the rate specified in the bonds up to the realization of decree with costs. 4. The plaint, as pointed out by Mr. Forsyth, the learned Counsel for the Defendant, is not a suit for ejectment or foreclosure, nor does it pray that the Defendant may be declared a trustee for the Plaintiffs of the revenues collected from the hypothecated villages. It does not even allege that the Defendant, at the time of the commencement of the suit,....
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....nt upon the argument of this appeal. 8. The first ground of defence was that the property alleged to have been mortgaged to the Plaintiffs was, together with all rights and interest in and in respect of it, seized and appropriated by the Defendant on behalf of the British Crown, on political grounds, as an act of state, and that consequently no claim against the Defendant as having thus taken possession of the said property was cognizable in the Court in which the suit was instituted, or in any other municipal Court. 9. The 2nd was similar to the 1st, with the addition that the seizure was "during the continuance and in the prosecution of war." 10. The 5th and 6th were as follows: 5. That the Circular No. 112, on which the Plaintiffs grounded their right to demand from Defendant the debts they sued for, was simply a private order addressed by one officer of Government in his executive capacity to others, directing them as a matter of mere grace and favour to relax in certain cases, where they would have operated hardly, the laws under which Government was free from legal liability in respect of debts secured on the Delhi Crown property, and certain other property ....
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..... 15. The Commissioner of Delhi remarked in his judgment "that in the use of the words 'confiscation' and 'seizure' and 'appropriation,' the Court did not perceive any material distinction, or difference, and one of the grounds of appeal to the Chief Court was, that the ruling of the Commissioner as to the meaning of those words was erroneous. The Appellants say, in the second ground of their appeal, 'the King of Delhi's property was confiscated,' and the Appellants do not dispute the right of Government to confiscate it; but the King had only a right to that which remained after satisfying the Appellants' claim, and to this alone is the Defendant entitled by virtue of confiscation. The Appellants' property was not confiscated." 16. Mr. Kay, in his argument, treated the word "confiscated" as if it were used in the sense of forfeited for a crime, and he cited cases to shew the distinction between "forfeiture" and "escheat." The former, he urged, did not affect bona fide incumbrances created by the offender before forfeiture. He admitted that the confiscation was an act of state, but he denied that it affected the rights which the Pla....
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....cipal law; and it seems to have been (considering the person who had owned the property seized) an act of power on the part of the British Government exercised ill a matter of state. There is, however, additional evidence to shew that the authority of Government in that character, which renders it superior to positive law, was brought to bear in this act, for the seizure of the King's lands was an appropriation of an enemy's property flagrante bello." 20. It is not necessary to express an opinion as to what is the effect of the seizure of property of a subject by a government in the exercise of the powers of war in putting down an insurrection, especially in those cases in which the subject has not joined in the insurrection: nor is it necessary to deal with the cases which have been cited from the American Reports in regard to acts which took place during the late war in that country. The case of the Plaintiffs, who claim under grants from the King, is very different from that of a subject deriving title under an ordinary tenure. 21. It is necessary to consider tinder what circumstances the late King of Delhi acquired a title to the property charged with the payment ....
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....d their protection and having endeavoured to regain his former absolute rights of severeignty, the British power over those territories which had been assigned for his support was for a time suspended. Delhi fell before the British arms, the territories were recaptured, the power of the British Government was restored, and the King of Delhi was taken as a prisoner of war. The revenues and territories which in 1804 were by an act of state assigned for the maintenance of Shah Alum and his household were in 1857, also by an act of state, resumed and confiscated. 27. The seizure and confiscation were acts of absolute power, and were not acts done under power of any legal right of which a Municipal Court could take cognisance. 28. The status of the ex-king was that of a king. He was treated and recognised by the British Government as a king and not merely as a jaghiredar holding under an ordinary grant from the British Government. He was the grandson of Shah Alum, and neither he nor any of his ancestors had ever been deposed by his own subjects or by the British Government or by any other power. Shah Alum was described, by Lord Wellesley in his despatches, sometimes as the "unfort....
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....he mortgagees, who are British subjects, to what they claim. It is argued that the British authorities had given Shah Alum estates in British territory to be dealt with at his free will and pleasure, so that the charges bona fide created by him while in possession de facto and de jure, as owner, survived his deposition. But their Lordships are clearly of opinion that no such ownership or power of disposition was conferred upon Shah Alum or his successors. The territories were assigned to him for the support of his royal dignity, and the due maintenance of himself and family in their high position. If he had died or abdicated his successor would have taken the property in the same way, free from all charges. It was a tenure (so far as it was a tenure at all) durante regno, and on his deposition his estate and interest ceased, and all charges and incumbrances created by him out of that estate fell with the estate itself. 31. Their Lordships are clearly of opinion that the Circular Order, No. 112, does not amount to a law. It was not enacted as a law, nor did it purport to be a law; and it does not fall within the meaning of 24 & 25 Vict. c. 67. 32. The Circular was merely a Cir....
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....to by the letter of the law; but the Governor-General would deny them that which can be claimed only as a favour, for it is in the essence of a concession by favour that it should be withheld where favour is not due. 7. The Governor-General is of opinion that neither Saligram and Devee Singh's claim, nor that of any other creditor of the ex-king, who has been convicted of rebellion, to the liquidation of their debts from the revenues of the Crown lands should be admitted. 34. Even if the prior Circular, on which the Appellants rely, could on any fair principles of legal construction be held to be a legislative recognition of the rights of the creditors of the deposed sovereign to be paid out of the revenues of the deposing Government (the only way in which it could avail the Plaintiffs), the last Circular is an act of like character, of equal validity, and equally binding on the Courts of Law. 35. Their Lordships think it desirable to make a few observations on the case of Lalla Narain Doss v. The Estate of the late King of Delhi 11 Moore's Ind. Ap. Ca. 277, in which this Board came to a conclusion in favour of a claimant under the Circulars in question. The ....