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Theory of Legislation, Hildreth edition, pp. 191-92.)

Another passage from a more modern jurist needs quotation before
I proceed to discuss the Indian Law. I quote from Professor Holland's
work on Jurisprudence (p. 169) :

According to Eomar law a negotiorum gestor, or person who volun-
teered 60 rander some necessary service to property in the absence of its
owner, had a claim to be compensated by the owner for the trouble he
had taken, and the owner hart also a claim for any loss which bad re-
sulted from the interference of the negotiorum gestor. Of a similar
character are the rights given by English law to the salvors of ships in
distress aod recaptors of ships which have been made prize by the enemy,
and to those who have applied necessaries to persons who, being lunatics
or in a state of drunkenness, were incapable of binding themselves by

I have quoted from Jeremy Bentham and Professor Holland for the
purposes of maintaining the proposition, which I hold, that in jurispru-
dence the fundamental doctrine of salvage is neither limited to the perils of
the sea nor to any particular class of perils, but that it is based upon
sound foundations of the doctrines of equity. Maritime^ salvage asunder-
stood in the English law, is only a species of the genus, and if England or
other maritime countries restrict themselves to one or more species of
salvage it does not follow [315] that other countries which are not mari-
time, like the territories over which this Court exercises jurisdiction,
should limit themselves to any species of salvage adopted by maritime
countries to the exclusion of other species of salvage falling under the
general genus of the equitable doctrine.

I will now consider how far this fundamental principle has been
accepted by the Indian Legislature. In order to avoid the complications
arising out of the fictions of English law in such cases, Sir Fitz- Jamea
Stephen's Contract Act (IK of 1872) in Chapter V, deals with what are
called implied contracts in English law under a general category of
"certain relations resembling those created by contract." The first of these
sections (s. 68) deals with necessaries supplied to persons incapable of
contracting, and the next section is more to the point here, because it lays
down the general proposition of equity as much as of law, " that a person
who is interested in the payment of money which another is bound by law
to pay, and who therefore pays it, is entitled to be reimbursed by the
other." That the doctrine is shared by the English common law with
equity is certain, and the difference, if any, lies in the fact that the
common law relies upon fictions of implied requests, while equity juris-
prudence is independent of such fictions. This section 69 of the Contract
Act is specially important in this case because of the Illustration which
is appended to it, which runs as follows :

" B holds land in Bengal on a lease granted by A, the zemindar. The
revenue payable by A to the Government being in arrear, his land is
advertized for sale by the Government. Under the revenue law, the con-
sequence of such sale will be the annulment of B's lease. B, to prevent}
the sale and the consequent annulment of his own lease, pays to the
Government the sum due from A. A is bound to make good to B the
amount so paid."

I shall later on have to refer to this s. 69 of the Contract Act, as also
to the Illustration which I have just quoted. But meanwhile I must
proceed to show that the next section (s. 70) of the chapter deals with the


JUNE 29.


14 I, 273

12 A.W.N.
(1892) 117,

A VII-72



1892 obligation of persons enjoying benefits of [316] non-gratuitous 'acts, and
JUNE 29. to that section is appended Illustration (b), which runs as follows :

"A saves B's property from fire. A is not entitled to compensation

FULL from B if the circumstances show that he intended to act gratuitously."
BENCH. I have quoted this in passing to show that salvage from the dangers

of the fire, as distinguished from the perils of the sea, may possibly be

14 A. 278 recognized, though the Illustration limits itself to the case of a salvor
(F.B.) who " intended to act gratuitously," and though there is no Illustration
12 A.vr.N. appended to the section applicable to the case cf a person who, though a
(1892) 117, volunteer, does not intend to act gratuitously, bub incurs risk of life and
expense to save property from imminent danger from fire. The remain-
ing two sections of the chapter of the Contract Act (ss. 71 and 72) are
unimportant for the considerations of the questions which arise in this

In order to guard against being misunderstood I must here observe
that in discussing the questions from Jeremy Bentham and Professor
Holland, as also the sections of the Contract Act, I have used the word
salvage and salvor in their broad juristic sense as distinguished from
maritime salvage with its peculiar restrictions, incidents and rules.
Further, I have used the words as not necessarily implying a lien upon any
specific property, so that, according to my notions, there may be a right of
simple salvage without a lien and also a salvage with a lien. I must also
add that in using these terms I bear in mind the distinction between a
mere volunteer who officiously renders service, or incurs expense to save
the property of another, and a person who in order to save bis own
property makes payments which another is bound by law to pay to save
his property.

Bearing these distinctions in mind, it would be a useless task for the
purposes of this case to enter unto a disquisition as to the question in
what cases a mere volunteer may be entitled to simple salvage without
lien, and in what oases he would be entitled to salvage with lien. It is
enough to say that these matters in any case must depend upon some
doctrine of equity, for the English [317] common law theory of implied
requests has, I hope, been abandoned by jurists by this time as a fiction.
What we are concerned with here is not the case of a mere volunteer
who acts officiously, but the case of a person who, impelled by necessity
under the stringent rules of the revenue law, has made payments the
default of which would imperil not only his own property but also tho
property of others. The question being thus limited, it is important to
ascertain the exact nature of the peril from which the plaintiff saved the
property in suit against which he seeks to enforce his charge, which I call
salvage lien. The statute law upon the subject is clear so far as it
delineates the nature of the peril and the liability. S. 146 of the land
Eevenue Act (XIX of 1873) provides that " in the case of every mahal
the entire mahal and all the proprietors jointly and severally shall be res-
ponsible to Government for the revenue for the time being assessed on the
mahal." The next (s. 147) provides as to the times and places for payment
of such revenue, and s. 148 declares that any sum not so paid becomes
thereupon an arrear of revenue, and the persons responsible for it become
defaulters." Then follows s. 149, which lays down that "a statement of
account certified by the Tahsildar shall ba conclusive evidence of the
existence of the arrear, of its amount, and of the person who is the
defaulter. This seems drastic enough, conferring as it does upon the
certificate of an executive otlicor the importance of collusiveness which



14 All. 319

ib would not enjoy in a Court of justice under the ordinary rules of evidence.
What follows is even more important and more drastic, namaly, the
provisions of s 150, which I will quote in full, relating to process for
recovery of arrears of revenue. The section runs as follows :

An arrear of revenue may be recovered by the following processes ;

(a) by serving a writ of demand (dastak) on any of the defaulters ;

(b) bv arrest and detention of his person ;

[318] (c) by distress and sale of bis moveable property ;

(d] by attachment of the share or patti or mahal in respect of

which the arrear is due ;

(e) by transfer of such share or patti to a solvent co-sharer in the

(/) by annulment of the settlement of such patti or of the whole

mahal ;

(g) by sale of such patti or of the whole mahal ;
(h) by sale of other immoveable property of the defaulter."

I will not here discuss the question whether these perils are not
greater than the perils of the sea, or at least equally great to invoke the aid
of equity, which must necessarily be, even in ancient times, the foundation
of the doctriue of salvage and general average as understood by the mari-
time countries of Europe. A sinking ship may sink if the salvor does not
appear, but it may also escape sinking even if the salvor was not there, and,
even if there, did not choose to run the risks and incur the expense of saving
a sinking vessel by offering his officious services, But a joint estate such
as that contemplated by s. 146 in our zemindari tenures must sink (not
unlike a ship into the depth of the ocean) into vanishment by dint of the
law and its drastic rules as contained in s. 150 of the enactment.
Passing by the peril indicated by clause (&) of that section namely, or
" arrest and detention of his person" (which I suppose would not be
regarded as wrongful confinement, especially as the Tahsildar' s certificate
under s. 149 as to the existence of the arrear and of its amount would
be conclusive evidence), I refer to the peril indicated in clause (g) of
the section, and also by clause (ft) which follows it.

The point contemplated by clause (g) of s. 150 is represented by
what may happen under s. 166 of the Act, the body of which section I
wish to quote, leaving out the provisos, which have no application to this
case. The section itself prescribes the following rule :

" When an arrear of land revenue has become due and the Collector
of the district is of opinion that the other processes herein- [3 19] before
provided are not sufficient for the recovery of such arrear, he may, in
addition to, or instead of, all or any of such other processes and subject
to the provision hereinafter contained, and with the previous sanction of
the Board, sell by auction the patti or mahal in respect of which such
arrear is due."

Then comes the most important section of the enactment for the
purposes of this case, of which I must quote the body, 'leaving out again
the latter part of ib, which has no application to this case. Referring to
the preceding section, namely, s. 166, which I have already quoted, the
enactment in s. 167 goes on to say :

" Land sold under the last preceding section shall be sold free of all
incumbrances, and all grants and contracts previously made by any person
other than the purchaser in respect of such land shall become void as
against the purchaser at the auction sale."



JUNE 29.


11 A. 273


12 l.W.N.
(1892) 117.

14 All. 320




JUNE 29,


14 A. 273

(F.B.) =
12 A.W.N,
(1892) 117,

These provisions of law leave no doubt in my mind that the Legisla-
ture, for reasons of public policy and public weal, rendered land-revenue
payable by zamindari estates the first and most paramount charge
upon the land, that in order to secure its punctual payment especially
drastic provisions have been made, to such an extent that the effect may
be briefly stated to be that neither the person nor the property of the
zamindar can escape serious jeopardy whenever default of the payment of
revenue takes place. Drastic as these provisions may seem at first sight,
they are based upon sound public policy and principles of good government
in an agricultural country like India. Historically these provisions, which
are sometimes reproachfully called oppressive, do not owe their origin to
the British rule, but are traceable to the principles of land revenue ad-
ministration inaugurated by the Emperor Akbar, who has well been called
the Muhammadan Augustus Caesar of India. The British rule in
adopting and improving those principles has proceeded upon sound consi-
derations of public policy and good government quite as important as the
public policy of maritime salvage, and they have worked with success.

I have dwelt upon this aspect of the matter at such length in
order to point out that Lord Justice Bowen in his judgment, from
[320] which I have quoted, does not rest the doctrine of maritime
salvage upon any higher footing than " the purposes of public policy and
the advantage of trade," and to these he adds " the nature of sea perils
and the fact that the thing saved was saved under great stress and excep-
tional circumstances." Now, this being so, I hope I have said enough
to indicate that whilst for maritime countries whose manufactures and
commerce depend largely upon the safety of ships and cargo, so as to give
a good foundation for rendering such safety an exception to the general
rule, in an agricultural and non-maritime country, like the territories
within the jurisdiction of this Court, similar considerations of public policy
suggest that the rules of equity upon which in their origin the doctrines
of maritime salvage and general average are based should be applied to pro-
mote the security which the state possesses under the law for collection of
land revenue. That security enhances in proportion to the security given to
the lambardar for recovery of money paid by him as arrears of Government
revenue on behalf of his defaulting co-sharers. I wish to say again that
in this case no exigency arises to deal with the case of a mere volunteer,
but with the case of a person such as the plaintiff, who in order to obey
the drastic rules of law as to the collection of land revenue not only saved
himself but also the property and persons of his defaulting co-sharers. I
find myself unable to understand why under such conditions the position
of a salvor (I again use the word in its broadest juristic sense) such as
the plaintiff should be rested upon a lower footing than that of a salvor
from the perils of the sea, who officiously and even without the fiction of
implied request saves a ship from sinking.

It has been urged, and I think the argument must be carefully
considered, that whilst the statute law as contained in the Land Kevenue
Act (XIX of 1873) contains drastic rules for collection of land revenue,
imperilling the liberty and property of the owner in a joint zamindari
estate, it is totally silent as to any lien in favour of the lambardar or
other co-sharer who makes payment of Government revenue on behalf of
his defaulting co-sharers, thus saving them and their property from
the drastic consequences contemplated by s. 150 [321] of the Act.
This is so, and upon this circumstance it has been ingeniously con-
tended that the only remedy which the law awards to a salvor




All 322

(I again use the word in its broad juristic sense), such as the plaintiff,
is provided by clause (g) or clause (k) of s. 93 of the Bent Aet (XII of
1881), and that since that enactment neither empowers the Bevenue
Court to deal with questions of lien, nor can such decrees as the plaintiff
obcained on the 7th of April 1885, against the defaulting co-sharers be
executed as decrees enforcing such liens, therefore the Legislature intended
to abrogate the doctrines of equity which, independent of legislative
enactment, exist as a rule of decision unless they are expressly abrogated.

It is perfectly true, as I have already said, following the doctrine of
Wilson. J., in the Full Bench case of Kinu Earn Das v. Mozaffer Hosain
Shaha (1), that "no such charge is given by any express statutory enact-
ment." Whatever enactments Wilson, J., had to consider with reference
to Lower Bengal, the same observation applies also to our statute law
namely, the Bent Act (XII of 1881) and the Bevenue Act (XIX of 1873).

But what are we to gather from the silence of the Legislature ? As I
understand the rules of the interpretation of statutes, there is no more
reason for holding that the Legislature by its silence intended to abrogate
any doctrine of equity than there would be for holding that there is no
law of torts in British India because the Legislature has not yet enacted
upon the subject. And one thing is certain, that so long as s. 37 of the
Civil Courts Act (XII of 1887) is allowed to stand in the Statute book
of the land (as I hope it will always do), the rule of "justice, equity and good
conscience " must apply to all cases where there is no legislative enactment
one way or the other. Further, that rule, as I understand it, does not
mean that we are to disregard the special conditions of the country
where it is applied, the principles upon which the laws of that country
proceed, and I have no doubt that it does not authorise the importation in
a rigid form either of the common law of England or any technical rules of
the Courts of Chancery there. Much less is it possible for me to hold
[322] that the limitations imposed by the maritime law of England or
any other maritime country (partial as such countries naturally must be
towards attaching importance to sea perils and perils to commerce) upon
the general doctrines of equity (which are as independent of the breezes
of the ocean as of the hot winds of India) are to be bodily imported into
an agricultural country such as this part of India.

It is now important, before I conclude, to discuss the case-law upon
the subject, taking the judgments of Mitter, J , and Wilson, J., in the Full
Bench case of Kinu Ram Das v. Mozaffer Hosain Shaha (1) as the starting
point of such a discussion. I say so, because in that case the point now
under consideration was exactly the ooint then under consideration, and
the Full Bench of five Judges was divided by a majority of three against
two, one of the learned Judges of the majority resiling from the views
which he had on former occasions expressed in a judgment of his own.

Under these conditions I cannot refrain, at the risk of prolixity,
from quoting a whole passage from Dr. Bashbehari Ghose's Law of
Mortgage in India (2nd ed., p. 318), not only because I fully concur in
it, but also because it will be introductory to what will follow in this
judgment. The learned author says :

"Co-parcenary being the rule in India, it is certainly very desirable
that the rights and liabilities of co-parceners should be clearly defined,
and yet there are perhaps few portions of Anglo-Indian law which are
so deservedly open to the reproach of uncertainty. I do not refer here

(1) 14 0. 609, vide p, 812.


JUNE 39.

14 A. 273

lF.B.) =
12 &.W.M.

(1892) 117.

14 All. 323



JUNE 29.


14 A . 273

12 A.WN
(189 ) 117.

to matters which must be governed by the personal law of the parties,
but to those altogether outside the pale of that law and regulated either
by statute or by the general principles of justice, equity and good con-
science, which ' high-nounding phrases ' only too often mean an exact
reproduction and not a careful adaptation of English law. The Indian
Legislature has, it is true, occasionally in dealing with certain special
matters embodied in the Statute book some of the general principles of
equity, huh the result of such fragmentary legislation has been not to assist
but [323] rather to embarrass our Judges in applying such principles in
analogous cases not governed by statute law. A complete code artistically
arranged is, no doubt, a triumph of legislative skill. But a sincere, and
indeed fervent, advocacy of legislation proper, as distinguished from judge-
rnado law, is perfectly consistent with a wholesome distrust of the bene-
ficial efl'ect of piece-meal legislation, or, as it has been sometimes irreve
rently called, legislative tinkering. I cannot find better illustration of what
I mean than the recent case of Kinu Bam Das v. Mozaffer Hosain
(1) in which a majority of the Judges came to the conclusion that a part-
owner is not entitled to a charge upon the share of bis co- sharer for land
revenue paid by such co-sharer as against a purchaser whether with or
without notice. It seems to me extremely doubtful, however, whether
tbis conclusion would have been arrived at if the matter had been free
from the entanglement created by the provisions of an Act; woicb, while
laying down the procedure regulating sales of arrears of revenue,
incidentally gives a right of this kind to a mortgagee, but is wholly silent
as to the rights of a part-owner. The inference which was drawn by a
majority of the learned judges from the silence of the Legislature was that
a mortgagee alone was entitled to the benefit of a lien."

Now it is important to consider why in the Calcutta Full Bench case
Wilson, J., for whose rulings I have always entertained high respect,
limited the lien to the case of a mortgagee only. Ha had before him the
Bengal Eevenue Sales Act (XI of 1859), and the latter part of his judg-
ment is devoted to the interpretation of s. 9 of that enactment, which,
whilst declaring a lien in favour of a mortgagee, is silent as to any such lien
in favour of co-sharers paying arrears of revenue on behalf of the defaulters.
He had no doubt in his mind the maxim expressio unius est exclusio
alterius, and then applying the maxim to the enactment before him
arrived at the conclusion that because a lien was expressly declared
in favour of mortgagees, and no such declaration was made in favour
of co-sharers, therefore no such lien in favour of the latter existed.
In this view he was confirmed by what he says : " The corresponding
[324] s. 9 of Act I of 1845 was in similar terms, except that it did not con-
tain the last clause about lien." As to so much of his judgment, therefore,
as proceeds upon the interpretation of statutes applicable only to Lower
Bengal, much need not be said, because those enactments are not in force
in this part of the country. What is important to consider are his views as
to the general principles upon which his judgment proceeds. The learned
Judge, after referring to the enactments, concedes an important principle
when he says :

" It could not of course be contended that an enactment which purports
expressly to confer a narrow and limited right, of necessity excludes a
larger right, if the existence of the larger right is clearly established
apart from the special enactment." So far I fully concur with the learned

!_;-'. *. - - - j ,_ j - - .. - _..-__ _'-!- -> '_ -i r- r-i - ~- - ~- ' -

.(1) U C. 809,




All. 326

Judge, and it is important to consider why he did not act upon that general
principle. As a qualification of that general principle be goes on to say :

" But where the existence of a larger right is not clear, but highly
doubtful, I think the express creation of the narrower right tends strongly
to negative the existence of the larger."

Now on this part of the judgment I wish to make only two observa-
tions with due respect. First, that the learned Judge in making the
observation as to the absence of lien in the nature of salvage such as was
claimed in that case, had most probably in his mind the somewhat un-
qualified dictum of Lord Justice Bowen in Falcke v. Scottish Imperial
Insurance Company (1) that " DO similar doctrine applies to things lost
upon land, nor to anything except ships or goods in peril at sea." That
this was so is apparent from what Wilson, J., said with reference to the
English case just cite3. In the earlier part of his judgment he said : " In
the latter of these cases the doctrine of what has been called salvage
lien acted upon in some Irish cases, is, I think, authoritatively rejected."
But it must be remembered that Lord Justice Bowen was laying
down a doctrine of maritime law in a maritime and commercial country
like England ; that there is nothing in his judgment to show that
325] he intended the rule which he was laying down to be a rule of
universal application to all countries, and in all conditions of the popula-
tion of those countries ; nor do I think I am going too far in undertaking
the risk of saying that in all probability there was nothing farther from
Lord Justice Bowen's mind when he delivered his judgment than the
perils to ownership of zemindari estates under the law in our non-maritime
and agricultural India.

Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 86 of 155)