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46th. We will proceed to consider separately the three classes of tenures mentioned above. First, those where the proprietary right rests in a single individual.
47th. All these are evidently liable to partition under the existing laws, in the course of the succeeding generations. The vesting of the entire right in an individual is rather incidental than natural to the tenure, and yet deserves special notice, because it is generally created in a way that brings with it special rights and relations. The sole proprietors of villages are mostly those who have purchased them at public sale for arrears of revenue, or under decrees of Court, or by private contract.
48th. Purchasers by public auction, on account of arrears of rent, must be held to have become possessed of all of what is commonly termed the Zemindarry right. From the cultivated land they may collect the established and fair rates: of the uncultivated land they have the entire disposal. The Sayer, including the Phulkur, the Bunhur, the Julhur, and whatever Zemindarry cesses are levied in the village, of right belong to them, as does also the whole of the timber, which is not the personal property of the resident who planted it, or his heir. With the former non-proprietary cultivators the relations of the purchaser are well defined. He steps into the place of the former proprietors, and is entitled to collect whatever they used to collect before. From the old proprietors he is entitled to demand for their Seer the average rate paid in the village, or its neighbourhood, for similar land, by similar classes of cultivators, though this may be some times difficult to determine immediately.
49th. An individual may have become possessed of a village under sale in satisfaction of decrees of Court, and this is more frequently the case than might be expected, even where the former proprietors were numerous. A wealthy and intriguing man who once gets a footing in a village will soon contrive to bring the interests of all the others to sale, and by purchasing them, become himself the sole proprietor. The right thus acquired is evidently more absolute than where it rests on sale for arrears of revenue, though the latter gives the better title. The latter absolutely transfers only the Zemindarry right, guaranteed by the State against all other claimants; the former gives the whole of the rights and interests of the persons whose estates were sold, but liable to challenge by any other claimants. In the latter case, the old proprietors retain their rights as cultivators; in the former, they lose them, and sink to the ranks of mere tenants at will.
50th. Purchases under special contract are of course ruled by the terms of the contract; but here, as well as in the case of sales under
decrees of Court, our mistaken practice has introduced much confusion. It became customary to consider the recorded Malgoozar the absolute proprietor of the whole share, for which he paid the revenue; and hence the sale of his rights and interests was held to be a conveyance of the whole share; a transfer of the names was made in the Collector's books, or, in technical terms, Kharij Dakhil was taken out, and it became no easy matter to determine what really was transferred. No doubt recorded Malgoozars have often taken advantage of this misapprehension of their rights seriously to injure their co-parceners and enrich themselves at their expense, but great injustice has also been caused the other way. A Putee has raised money on mortgage, or stood security in the name of its recorded Malgoozar, and received all the benefit accruing from either transaction; and afterwards, when the terms of the contract have come to be enforced against them, have endeavored to throw the whole weight on the Sudder Malgoozar alone. The Government has frequently been thus a loser by accepting a Sudder Malgoozar as security in the full amount of his recorded liability. Cases of this sort must of course be decided each on their separate merits. I would only mention one rule, which I have found arbitrators adopt. Co-parceners living together, and holding their property jointly and undividedly, are held to be bound by the act of their recorded managers. The presumption in such cases is strongly in favor of common agreement to the act, and they must be very strong and peculiar circumstances which could establish a right of exemption from all the liabilities implied in the deed.
51st. Talookahs are not always held by an individual, but they frequently are held either by one person or by a few living together, and exercising their rights as one. Any collection of villages held together, either by one person or by many, is in the common usage of the district called a Talookah; but I employ it here in the more restricted sense in which it is generally received in the Western Provinces, as meaning a collection of villages, each having a separate community of its own, which by some act of the ruling power had been assigned to an individual, who was to collect the revenue from them, and pay over a certain portion of it to the Government.
52nd. Of such Talookahs there are not many in Azimgurh, nor are the few that exist of any great size. Talookah Baz Bahadoor perhaps is the only one which deserves very particular notice. Baboo Baz Bahadoor was a junior member of the family of Gautum Rajahs of Azimgurh, already mentioned. He obtained from the Rajah of the time several villages. Some of them were waste, and he brought them into cultivation; some of the village communities were weak, and
either he hoped to crush them, or they anticipated advantages from being placed under his care. He thus acquired about 20 or 30 villages in different Pergunnahs, and by superior address managed to keep some hold of them till we acquired the country. Our first act was of course to call him Zemindar, and constitute him absolute proprietor of the whole. He himself however was not in a condition to avail himself altogether of the favorable opportunity. He fell into pecuniary difficulties-was obliged for sometime to make over his estates in mortage to a banker, and at the last settlement was unable to enter into engagements himself, and saw many of his villages transferred in farm to the members of the village community. Now in some of these villages the Talookdar was the only claimant of the proprietary right. The lands had been waste, and he had brought them into cultivation at his own cost, and here his recognition as Zemindar was proper. Where, however, the village communities had retained their rights, these were confirmed to them with reservation of a Talookdaree right. Some cases were found in which the Talookdar had never exercised any right whatever over the village, nor derived any profit or emolument from it for many years, although he had all the time been nominal and recorded Zemindar. These were severed from the Talookah and settled with the proprietors.
53rd. If the proprietary right rests in many members of a village community, they many divide the profits according to their ancestral shares, or according to some arbitrary rule regulated by the quantity of land in the cultivation of each proprietor, or, in other words, his Seer land.
54th. When the profits are divided amongst the several co-parceners according to their ancestral shares, they may, or they may not, be cultivators of the land, i. e. the holders of Seer. The simplest form which the case can assume, is when they all live together as a joint undivided family, one person managing the estate for the rest, or appointing a common manager, and dividing the profits at the close of the year. Sometimes they divide the estate, their responsibility continuing joint-sometimes the cultivators only are divided by the Putwaree, each collecting from those assigned to him; and this assignment may take place annually, or when once made may continue in force till a re-partition is demanded. There are instances where each person collects from each cultivator the portion of the rent which is his share, but this is very uncommon.
55th. When the proprietors cultivate themselves, the case is rather more involved. If the Seer of each parcener bears the same proportion to the total quantity of Seer land, that his share does to the
whole, the Seer may be thrown out of account and the collections from the Assamees divided amongst them, according to their shares. This however is seldom the case. It is more usual to levy a rate on the Seer land, either the same that it would bear if cultivated by Assamees, or some other fixed and arbitrary rate, generally a low and favorable one. The village accounts being thus made up, the profits are divided according to the shares. In this case, if the rate levied on the Seer land is the same as on the Assamees land each parcener can take up as much land as he likes as his Seer, otherwise there are constant bickerings on the subject, for of course the increase of Seer cultivation diminishes the rent roll.
56th. When however the proprietors live separate, but divide the profits amongst them, it is by far the most common to divide the estate, and each person to manage his own share as he likes. In course of time, however, inequalities arise either in the quality of the land in one share by superior management, or by the gradual encroachments of one share on the common waste land. This gives rise to violent disputes-some claiming re-partition, others resisting it. These disputes are commonly called in the district, "kum a beshee,” i. e. where the contending parties affirm that the shares are less or more one than another. The man who thinks he has less than his right, claims to pay not according to his ancestral share, but according to his possession. This is not admitted by the other, and default ensues. Estates have thus been often brought to the hammer, at the time when sales by auction were the favourite means of realizing the public demand. Now they constantly lead to attachment of the estate. The only effectual method of terminating such disputes is by re-partition of the whole, presuming, of course. that participation according to ancestral share be an admitted feature of the tenure. Clause 2, Section XII, Regulation v11, 1822, evidently contemplates cases of this sort, and confers the necessary power on the settling officers. Disputes of this nature are most common in the Pergunnahs of Kowreeah, Gopalpoor, and Atrowleeah Tilhenee, and they also occur in Deogaon.
57th. But where the proprietary right rests in a community, the profits of the estate are often enjoyed not according to the ancestral shares, but according to some arbitrary apportionment on the Seer land of each proprietor. This apportionment of profit shows itself in the form of a reduced rate of assessment on the Seer land. In such cases the Government revenue is said to be paid or made up by a bach,h on the Seer. These tenures of course suppose that each proprietor is himself a cultivator, though it may so happen, and sometimes
does, that the proprietor is not a cultivator, but has acquired the share by purchase, public or private, from a cultivating proprietor. Where the profits of the estate are divided according to ancestral shares, the Seer of a Zemindar is that which he has under his own cultivation, i. e. which he has cultivated at his own cost, and by his own capital. In tenures however of the kind which we are now considering, the word Seer acquires as it were an artificial meaning. It is that portion of the land in the possession of a sharer on which he pays the bach,h, and which when compared with the total amount of Seer in the village, represents his interest in the estate. It depends upon the custom of the estate whether this be all or any part in his actual cultivation, or whether he have any other cultivation in the village than this. Instances are not very common where the sharer cultivates no part of his Seer, and they generally arise, as above stated, out of forced, or voluntary transfers from cultivating proprietors. It is common however for the proprietor to under-let a part of his Seer, obtaining from the tenant the full Ryottee rates, and paying himself only according to the bach,h. Instances are not common where the proprietors cultivate more than their Seer. One singular case deserves special notice. In Mowzah Oomahpoor, Pergunnah Mhownat Bhunjun, thirty-six beegahs were set apart in the village, and each sharer's right was determined by the portion of this thirty-six beegahs which he cultivated. It was his Seer, but besides this he might cultivate as much more of the village as he liked at the common Ryottee rates, and so all the sharers did to a considerable extent. Other instances probably might be found where sharers cultivated the land of other sharers, or the common lands of the villages, at the usual Ryottee rates, but they do not come permanently into notice.
58th. It is evident that the Seer land may in such case bear any proportion to the Ryottee. It may be very small, and the great bulk of the estate may be cultivated by persons claiming no proprietary rights in the estate, or it may absorb the whole of the estate, which in that case is parcelled out amongst the several co-parceners as their Seer. The latter is commonly the case in the old Rajpoot communities, which have been strong enough to resist all the changes which violence or fraud so often effect. In Tuppahs Chowree and Koobah, in Pergunnah Deogaon, and in a great part of Pergunnah Belhabans this prevails. The members of the Rajpoot communities are very numerous and strong. They will not admit that there are any cultivators but themselves, and record the land as their Seer, each man paying a proportionate share of the Jumma according to the bach,h. There is strong reason to believe that this is by no means so generally the