- (1.)THE facts giving rise to this reference to a full Bench may in brief be stated as below : - In appeal No. 34/bhilwara/1958 Maharaj Hamir Singh Jagirdar, Ganeshpura resident of Surajpura Tehsil Sahada District Bhilwara - appellant vs. State of Rajasthan - respondent and cross appeal No. 8 /bhilwara/1959 State vs. Maharaj Hamir Singh which were heard by a Division Bench consisting of Sarva Shri Mathur and Hawa, the main point for determination was whether under the provisions of sec. 109 of Kanun Mal Mewar, a Jagirdar of the former Udaipur State was authorised to sell culturable land in his Jagir area, and if not whether the income derived by means of giving Bapi pattas could be regarded as an income from sale of culturable land in term 2 (f) of the second schedule of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (as amended from time to time and hereinafter referred to as the Act) for purpose of determining compensation etc. payable to a Jagirdar. THE learned Members after hearing the learned counsel and the Government Advocate though that as a decision on this issue was of public importance and will have far reaching effect both on the Jagirdars as well as the State, it may be referred to a Full Bench for a well considered decision. Similarly in another appeal No. 22/1958 Maharaj Bahadur Singh Jagirdar, Bhopalgarh Tehsil Bilara District Jodhpur vs. State of Rajasthan and others which was heard by Sarva Shri Shyam Lal and J. N. Kunjru, the same point came up for determination whether in view of the provisions of sec. 191 and 198 of the Marwar Land Revenue Act 1947, a Jagirdar of the former Jodhpur State could or could not sell culturable land in his Jagir area and whether any income derived on account of charging premium for conferring Bapi Rights etc. could be included in the gross income of the Jagirdar under item 2 (f) of the aforesaid schedule for purpose of calculating compensation and rehabilitation grant payable to Jagirdars. THE learned Bench also likewise thought that this point be referred to a Full Bench for an authoritative pronouncement. Again in appeal No. 8/1659 State vs. Jagat Singh Jagirdar Pushod Tehsil Pipalda Distt. Kotah, the same question arose and the learned Bench consisting of Sarvashi Mathur and Khemchand referred the point for determination to the Full Bench. In appeal No. 18/1957 State vs. Lachman Singh Jagirdar Aduka Tehsil Chirawa Distt. Jhunjhunu which came up for hearing before the learned Bench consisting of Sarva Shri Shyamlal and J. N. Kunjru, the same question again came up for determination and it was also referred to the Full Bench.
(2.)IN order to appreciate the importance of the point of law involved in the reference, a brief history of the enactment and the circumstances which necessitated this piece of legislation may be examined. The Government of Rajasthan introduced the Rajasthan Law Reforms St Resumption of Jagirs Bill 1951 in the Legislature with a view to improving thee economic and social conditions of the agriculturists and ensuring the full and efficient use of land for agriculture, as also to provide for the resumption of the Jagir lands and other measures of land reforms. This was passed into an Act (Act No. VI of 1952) and received the assent of the President of INdia on 13th February 1952. The second schedule of the Act did not contain any provision for including "income from sale of culturable and Abadi land" in the gross income of a Jagir for purposes of calculating the compensation and rehabilitation grant payable to a Jagirdars challenged this Act in the High Court. While the writ applications were pending, the Jagirdars agreed to settle the points of dispute out of court. On their representation the Government of INdia appointed Shri Govind Ballabh Pant the then Chief Minister of Uttar Pradesh to negotiate and find a solution to the issues which were outstanding. Out of these several issues, the two with which we will be presently concerned were that the Jagirdars demanded that : - (1) INcome derived from the grant of Khatedari rights to tenants should go wholly to Jagirdars and not only to the extent of 2/3rd, (2) INcome from sale of land both agricultural and Abadi should be calculated as part of gross income.
As would appear from a perusal of Appendix III at. page 39 of the Report on Rajas-than Jagirdars Abolition, demand No. 1 was agreed to in full and demand No. 2 was also agreed to with the modification that an average of past 20 years would be taken to examine the normal income of Jagirdar from sale of land. When this Report came up for consideration of the State Government, the whole matter seems to have been re-examined and eventually by the Amendment No. XIII of 1954, income from sate of culturable or Abadi land calculated on the basis of average income therefrom during 20 years immediately preceding the basic year was added as item 2 (f) in the second schedule of the Act. The income derived from the grant of Khatedari rights to tenants was left out of consideration. The most important point to be noted in this connection is that while pressing their demands, the Jagirdars were themselves conscious that the income from the grant of Khatedari rights and income from sale of culturable and Abadi land were two separate sources independent of each other, for otherwise they would not have made these two demands separately.

The contention of the learned Government Advocate is that there is no provision of law in any of the covenanting States, namely, Udaipur, Jodhpur, Kota and Jaipur whereunder a Jagirdar of any of the categories mentioned in schedule first of the Act could sell culturable land in his Jagir village or villages. It was pointed out that these Jagirdars used to confer tenancy rights known by different nomenclature in the various States for admitting tenants and used to charge a premium in lieu thereof. The submission therefore was that transactions of this nature do not tantamount to* a sale and therefore any income derived in the aforesaid manner could not be included in the cross income of a Jagirdar for purposes of calculation compensation and rehabilitation grant payable to him in terms of item 2 (f) of rule 2 of the second schedule of the Act. The counsels who presented the various parties however repelled these contentions and argued that these transactions were in absence of the nature of sale and recognised as such ever since the hoary past in the erstwhile States. We have in this context examined the various provisions of Tenancy laws in these covenanting States.

Sec. 109 of Kanun Mal Mewar (Act No. 5 of 1947) lays down that no Thikanedar, Jagirdar or Bhomia is permitted to alienate any land in his Thikana, Jagir or Bh6m by will, mortgage and sale. . . . . . a Jagirdar of a Thikana or a Muafidar could however transfer tenancy rights in respect of his Jagir Bhom land in accordance with this provision of law or the rules made thereunder. Similarly under sec. 191 of the Marwar Land Revenue Act no grant was transferable except to the extent provided in this Act. Sec. 192 and 193 deal with the grant of lease or 'ijara' of an estate or any part thereof. Sec. 198 lays down that any transfer of land in contravention of the provisions of this Act shall be void and land so transferred shall be resumable by His Highness. It will be seen that the only types of transfers permissible under this Act were by means of lease 'ijara' or mortgage. The sale of an estate and a part thereof was prohibited and if a Jagirdar acted in contravention of the provisions of this Act, the Jagir so transferred was presumable by the State. Similarly rule 77 of circular No. 1 Kotah State allowed only the mortgage of an estate or a part thereof by a Jagirdar or a Muafidar. There is no provision for allowing a sale therein. Again in Jaipur State Revenue Standing Order No. 12 which contains rules regarding sale and transfers of lands by State grantees it will be found in rule (1) that permanent alienation of a State-grant or a part thereof was strictly forbidden throughout the Jaipur State including Nizamat Shekhawati and Torawati. The transfer of a State grant or a portion thereof by mortgage was permissible and in the case of a 'panch-pana Sardar' or a Bhomia of Nizamat Shekhawati or Torawati to another Bhomia of either of these Nizamats no previous sanction of the Government was required. But in the case of other Jagirdars previous sanction of the Government was necessary.

The foregoing resume of the various provisions of law in the enactments referred to above shows beyond any manner of doubt that Jagirdars in these States had no authority in law to make permanent alienations of their Jagir lands or a part thereof by means of a sale, gift or will. They had been, in fact, permitted to charge premium in consideration for the conferment of Khatedari rights or some other rights on the tenants in their Jagirs. They had also been admittedly realising rents from such persons as tenants.

In this connection we have of necessity examined what a sale really means. The word 'sale' has not been defined in the Rajasthan Land Reforms and Resumption of Jagirs Act. It has also not been defined in the Central or the Rajasthan General Clauses Act. As observed in A. I. R. 1954 Bombay - page 261 (269) in the case of words not defined in Act it is an ordinary canon of interpretation that words have got in the first instance to be taken in their popular meaning as in order to ascertain as to what the popular meaning of the word is one can have recourse to the dictionary. A similar view was also held in A. I. R. 1956 Travancore Cochin - 79 (81 ). The well known old maxim uti loquitor vulgus (statutes are presumed to use words in their popular sense) may also be recalled here. In Wharton's Law Lexicon (Fourteenth edition) the term 'sale' in the words of Blackstone is defined as 'a transmutation of property from one man to another in consideration of some price*. In sec. 54 of the Transfer of Property Act the word 'sale' is defined as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The essential ingredient to constitute a sale therefore is a complete transfer of ownership of property by the vendor in favour of vendee for consideration. In the present cases no such complete transfer of ownership had taken place. In fact it could not be so transferred. As observed in A. I. R. Supreme Court 1955 - page 504, a Jagir in every State was originally only a life grant and when the holder died it reverted back to the State and succession to the estate was under a fresh grant from State and not by inheritance as a matter of right. Even when the successor was heir of the deceased holder it could be resumed by the Rulers in the exercise of the sovereign rights of eminent domain possessed by the State. The essential feature of a Jagir therefore is that it is held under a grant from a Ruler at his pleasure and the grant is of land revenue. It is inherent in the very conception of a 'jagir' that it should have been granted by the Ruling Power. Every Jagirdar irrespective of his tenure is only an assignee of land revenue, under a grant made by the Ruler of a State. In lieu thereof each Jagirdar paid tribute to the Government. Viewed in this perspective Jagirdars were not the absolute owners of the estates and could not therefore transfer by sale any proprietory rights in their Jagirs to any body for consideration. Another argument canvassed by Shri Milapchand Jain also deserves to be examined. The submission was that the word 'land' has been defined and assigned a special meaning in the Act and has been given a wider connotation than ordinarily understood. We have looked into this definition. It reads as below : - "land includes benefits to arise out of land and things attached to the earth. . . . . . . . . . . This definition resembles the definition of land given in section (3) (a) of the Land Acquisition Act and on the doctrine of pith and substance it can very well be said that by using the word 'includes' in the definition of land the Legislature intended to lump together in one single expression 'land' several things which can be corporeal such as lands, or incorporeal such as future rights in lands or easements. The expression 'benefits to arise out of land' covers all that is meant by tenements and hereditaments in the English law including subordinate tenancies or leases, lands and profits, easements over the land, fishery etc. and so forth. Under the Act if a Jagir land is resumed the land and the benefits to arise out of it vest absolutely in the State free from all encumbrances. We are therefore clear in our mind that the resumption of Jagir land cannot be restricted to corporeal things and that there cannot be any such incorporeal things as benefits to arise out of 'land' which can be recognised to have a separate entity within the meaning of the term 'land' as envisaged in the scheme of the Act. Secs. 21and22 which deal with resumption and consequences of resumption of Jagir land show that the Legislature intended to mean by the resumption of a Jagir land. The resumption of Jagirs under this Act is, in fact, not made in the enforcement of the rights which the Rulers had as grantors but in exercise of the sovereign rights of eminent domain possessed by the State. The taking of properties is, under the circumstances in substance, acquisition notwithstanding that it is labed as resumption and imposes on the Government a liability to pay compensation in accordance with the principles laid down in the second schedule. Reading the provisions of the Act as a whole it is abundantly clear that what is meant by resumption is only acquisition (AIR 1955-504 Supreme Court ).

It was also argued before us that looking to the peculiar features of the Jagirdari System, and the practice obtaining since long in the various covenanting States, the taking of premiums or nazrana in lieu of conferring tenancy rights, should be regarded as sale of land, and that if this does not amount to sale of land nothing else in the circumstances could so amount. This argument pre-supposes that a transaction which would not otherwise amount to a sale of land has to be so recognized for the mere fact that these words have been mentioned in item 2 (f) of the Second Schedule of the Act. This contention is clearly untenable. A transaction to be a sale of land must conform to all the requirements of a valid sale. What are the essential ingredients of a sale have been pointed out at length above. Unless those factors are proved to exist no transaction can amount to a sale. The very fact that throughout the various stages of this enactment sale of land and grant of tenancy rights have been recognised as two distinct entities and that in the final shape of the Act one found a place to the exclusion of the other clearly supports the proposition that these two things cannot be regarded as inter-changeable and where the various circumstances show that the transaction was merely a grant of tenancy rights it cannot amount to a sale of land for purposes of compensation and rehabilitation grant.

Taking all these facts into consideration we hold that no Jagirdar in any of these erstwhile States had any right to sell culturable land in his Jagir villages and that any income derived by conferment of tenancy rights etc. could not be included in item (2) (0 of the Schedule for purpose of giving compensation and rehabilitation grant to a Jagirdar. The reference be answered accordingly and cases be sent back to the Benches concerned for disposal on merits. .

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