Mountstuart Elphinstone.

Selections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir online

. (page 27 of 41)
Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 27 of 41)
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district. This practice, combined with the collector's
tours round his district, ought to be a great check on
the Mamlatdars, and those officers ought likewise to be
obliged to answer speedily and fully every complaint
made against them or reference sent to them. The
great indulgence and forbearance recommended towards
Panchayats and Patils should have no place towards
Mamlatdars, on whose puritj^ and efficiency so much
depends, and with whom those qualities can only be
preserved by strict discipline.

The amount to be decided on l)}^ a Panchayat, under a
Patil, might be limited to 150 rupees, and by a Mam-
latdar or Amin, without reference, ' to 1,000 rupees;


when the amount exceeds tliis, the MamlatiLlr ought
not to call a Panchayat, even with the consent of the
parties, until he has taken the Collector's orders. Any
sum might be referred by the collector, but great causes,
where delay and distance are of least consequence,
would be best done under his own superintendence.

Causes, in which great Sardars are parties, should be
reported to the commissioner, who should take measures
himself, or send special instructions in each case. No
claim for a debt incurred during the Mahratta Govern-
ment ought to be enforced against this class with more
strictness than that Government would have evinced,
and all intercourse relating to causes of those persons
should be conducted according to the practice of the
former Government, as above described.

Kules ought to be made limiting the period at which
a suit can be entertained. Twelve years from the com-
mencement of the dispute would be sufficient in cases
of personal property, but a very long period must be
allowed in disputes about laud, provided always that
no prior decision by a competent authority has taken

These rules must be observed by the Mamlatdars and
Amins, but they must not extend to Patils, who must
be guided by custom alone.

A period ought also to be fixed, after which appeals
on complaints of gross error, briber}^ etc., will not be
received : these ought to be short when the cause
was tried by a Panchayat, and long when by a single

Mamlatdars and Amins should send registrars of the
causes they try to the collectors, and the collectors to
the commissioner, but nothing of the sort should be
required from the Patil.

So far, indeed, am I from wishing to clog the pro-


ceedings of the lower orders with forms, that I think a
decision ought to be received and enforced b}^ the pubhc
authorities, by whomsoever it has been passed, in every
case where there is a written consent to the arbitration
on the behalf of the parties, and a w'ritten award on
that of the arbitrators.

Too much pains cannot be taken to encourage private
arbitrations, and this is the more necessary from an
opinion, which appears to be industriously propagated,
that our Government resents and punishes any inter-
ference of individuals in affairs which are within its

The employment of professional Vakils ought to be
strictly forbidden, both in the Mamlatdars, Amins, and
collectors' Kacheries ; with the Patils, they are not
likely to exist.

Similar pains must be taken to guard against pro-
fessional arbitrators, a description of persons who were
not unknown under the Mahratta Government, and who
appear, from Mr, Lumsden's report, to be becoming
common under ours. This class, to all the bad qualities
of hired Vakils, adds that of corruption in the decision
of the cause. Perhaps some rule should be fixed to
compel the Mamlatdars and Amins to attend to this
caution, but this is the only regulation I would venture to
propose regarding Panchayats.

The difficulty of assembling the members, and of
getting them to come to a decision, suggests, mt first
view, some rules to promote those ends ; but none can,
I think, be v(>ntured on without the risk of making
attendance first entirely compulsory, and then very
odious. The magistrate may exercise his influence,
and ('\vn an indefinite authority as hitherto, to procure
attendance and decision ; but he ought to use no absolute
force, and, above all, to impose no fines nor other


punishments. The utmost woukl be, to call the Pan-
chayat to his court, and seat them with an Amin
from morning to night, until they should decide.

The collector might be empowered to bestow on
members of Panchayats, on whom attendance should
appear to fall particularly hard, a sum of money at his
discretion, to defray their expenses, and he ought to
withhold all assistance of the kind where the attendance
of the members has been particularly remiss.

Panchayats ought to be furnished with a Peon, to
summon witnesses and parties ; and in the event of the
non-attendance of one of the parties, after due notice,
the cause might be decided against him, though liable
to revision, on good ground being shown for his

Some check is required to prevent frivolous and
litigious complaints, especially in appeals from the
decision of Panchayats. Fees have been suggested for
this purpose, but it is very doubtful whether they are a
check on litigation any further than they are a check
upon justice.

It appears a better remedy to allow the Panchayats,
or the person who tries the cause, to fine a party whose
complaint or whose defence is palpabl}^ frivolous ; and if
this is thought to be too great a latitude to entrust to a
Panchayat, the fine might be limited to the extent of
the fourth, formerly taken by the Mahratta Govern-
ment, or even to the amount which would on our
own system be levied (even where there w\as no fault)
in the shape of cost and fees, stamped paper, etc. A
portion of the money so levied might be given to the
injured party when poor, and the rest would go to pa}''
the commission allotted to the Amins and the expense
of members of Panchayats. If the fund proved in-
adequate to this purpose, a further sum might be raised


by the sale of stamped paper for all deeds and con-
tracts, which would be a security against forgery, as
well as the means of raising a revenue.

In cases of appeals, I would oblige the appellant to
enter into a bond to pay a particular fine if the com-
plaint proved vexatious ; and this, as well as the fine
imposed on the loser, would only be a mitigation of the
Mahratta practice in both cases. Decrees should be
enforced in the mildest forms in use with the Mahrattas :
a Harkaru, or, in a case of a respectable man, a Kar-
kun, should be sent to insist on the payment of the
sum decreed, and to prevent the debtor eating from
sunrise to sunset, unless it were paid. The property
of the debtor ought also to be sold, but not his house,
nor the implements of his profession. If all this should
be insufficient, he should be imprisoned for a period, to
be fixed, on the report of the Panchayat, according to
the amount of his debt, and the fraudulent or litigious
spirit he had displayed.

A question arises regarding the native practice of
Takkaza. If left as it was among the natives, it leads
to every sort of oppression, and the more as the
sufferer is often prevented coming to complain. If
done away entirely, the great principle which drives
men to Panchayats, private arbitrations, and voluntary
compositions, is put an end to, and every creditor is
compelled to come to court. It is absolutely necessary
to proliibit the use of force, but perhaps all restraints
and inconveniences that depend on the point of honour
ought to be allowed to remain.

The plan I have proposed has many obvious and
Advantages and P^lp^^^® dcfccts, aud many morc will no doubt
ofthe pr'Scd appear when its operations are fully observed.
'''""■ It has this advantage, that it leaves unim-
paired the institutions, the opinions, and the feelings.


that have hitherto kept the community together ; and
that, as its fault is meddling too little, it may be
gradually remedied by interfering when urgently
required. An opposite plan, if it fail, fails entirely ;
it has destroyed everything that could supply its place ;
and when it sinks, the whole frame of the society sinks
with it. This plan has another advantage likewise,
that if it does not provide complete instruments for the
decision of suits, it keeps clear of the causes that
produce litigation. It makes no great changes, either
real or apparent, in the laws ; and it leads to no
revolution in the state of property. The established
l^ractice also, though it be worse than another proposed
in its room, will be less grievous to the people, who
have accommodated themselves to the present defects,
and are scarcely aware of their existence ; while every
fault in a new system, and perhaps many things that
are not faults, would be severely felt for want of this
adaptation. I do not, however, mean to say that our
interference with the native plan is odious at present.
On the contrary, several of the collectors are of opinion
that a summary decision by a European judge is more
agreeable to the natives than any other mode of trial.
This may be the case at first ; but if the decisions of
Europeans should ever be so popular as to occasion the
disuse of the native modes of settlement, there would
soon be a run on the courts, and justice, however pure
when obtained, would never be got without years of

There must, however, in the system now proposed,
be a considerable sacrilice of form, and even some
sacrifice of essential justice ; and it is to be expected
that the abuses which will be observed under it will
give particular disgust to most of our officers, l)ccause
they are repugnant to our ways of thinking, and we are



apt to forget that there are equal blemishes in every
other system, and that those which are the least
offensive in our eyes are often most disgusting to the
natives. This unsuitableness of the native system to
European ideas is, however, a very serious objection to
its adoption, and renders it doubtful if we shall be able
to maintain it after the officers to whom it is to be
entrusted shall have ceased to be selected merely for
their fitness.

If our own system be unintelligible to the natives, it
is at least intelligible to us, and as its characteristic is
strict rules and checks to departure from them, it is not
easy to go wrong. Moreover, as it possesses no very
nice adaptation to the native way of thinking, a little
derangement is of no great consequence. But the
native plan can seldom be thoroughly understood by
any of us : we may act against its plainest rules from
mere ignorance, and we must all be liable to strike at
its vital principles when we think we are only removing
its defects. Nor is it necessary that the legislator
should fall into this error to produce the most fatal
effects. The error of an inferior executive officer is
sufficient to overthrow the system. The commissioner
perceives the numerous irregularities, abuses, and
corruptions in village Panchayats, which may be
avoided by a few simple rules, and the complete insight
and effectual superintendence that would be gained by
a mere report of the Patil's proceedings ; he makes
his regulations, directs a register to be drawn up,
punishes the neglect of his orders regarding it, and
from that moment there is an end of village Panchayats,
until Patils shall be found who will undertake those
troul)lcsomc and unknown forms from mere public
spirit, with the chance of punishment and censure for
unintentional failure. Not less effectual would be the


decisions of an inexperienced assistant acting with that
confidence which inexperience alone confers : he fines
some Panchayats for exceeding their power, and im-
prisons some Patils for confounding their judicial with
their fiscal functions, and the effect of his decision is as
complete within his district as if a law had been enacted
prohibiting all interference in settling disputes, except
by the officers of the Government.

To avert these dangers, the best plan is to keep this
territory for a considerable time under a separate com-
missioner, on whose vigilance we must depend for
correcting mistakes such as have been described.

Wishing to give a complete picture of the shape in
which I recommended the native system to be pre-
served, I have not distinguished between the Alterations
arrangements already adopted and those only introduced.
proposed. In general the Mahratta system has been
kept unchanged. There are, however, some slight
differences in the modes of proceeding of the different
collectors. Mr. Chaplin receives all complaints that
cannot be settled with the consent of the parties, and
directs the Mamlatdar to inquire into them, and when
necessary to grant Panchayats. Captain Grant adopts
the same course, but also has many causes decided by
himself and his assistants at Satara. Captain Pot-
tinger's proceedings are similar to Captain Grant's, and
in the present state of Khaudesh there appears to be
scarcely any judicial business. At Puna it has long-
since been found necessary to appoint three native
Amins to assist in the administration of justice.
These persons regulate Panchayats and try causes
which both parties agree to submit to them, and
latterly causes also where the parties neglect to name
the members of the Panchayat. There have been



3,428 causes filed at Puna, of which there have been
settled without a trial 1,323.

By Panchayats ... ... ... ... 376

By injunction from the collector ... ... 539

Dismissed on the non-attendance of the plaintiff 408

And there have been decided ... ... 1,015

By the collector and his assistants ... ... 234

By Panchayats, chosen hy the parties ... 44

ByAmins ... ... ... ... 248

In the end of March 1,052 causes were undecided;

on the whole, I should think that the means we

Ultimate im- liavo liitlicrto posscsscd have not been suffi-

provements if.,, jut t*t~» t

those now cient to meet the demand m runa, and


should fail, perhaps, owing to the constant occupation
of Mamlatdars in revenue business, the same may
be true in the country. I hope the plan now pro-
posed will be more effectual. Should it fail, it will
be necessary to have numerous Amins for holding
Panchayats, and to adopt by degrees stricter rules to
compel the attendance and hasten the decisions of those
bodies. If that should be insufficient, Mansifs must be
empowered to try causes b}" themselves, in which case
there must be a European judge to hear appeals from
them all ; but these improvements must not be intro-
duced until they are wanted, and we must be careful
not to induce the natives to give up their present modes
of settling disputes, by holding out a prospect of pure
and abundant justice which we may not ultimately be
able to realize.

To sum up the effects of our revenue, police, and
judicial systems, we have, in revenue, lighter, more
Summary of cqual Riid morc certain assessment, less pecu-
arrangcmcnts. latlon, aud conscqucntly less profit to the
agents of Government. In police, more attentiou and
more vigour, but less violence, and so far less efficienc3^
In civil justice, the great change is that Government


has taken on itself the whole responsibility of protecting
people's rights, but there is more form, more purity,
more delay in some cases and less in others. In
criminal justice, more system, more scruples, more
trials, more acquittals, more certain punishment for all
crimes except robbery, and for that both less certain
and less severe.


TRANSLATIONS of a deed of purchase executed in the
year Shah 1726 BaJitakshi, on Paush Vadija Prati
Pada, heticeen Jdnoji Bin Datoji, Patil, Kaddam
of the village of Gaivi, in the Pargana of Phaltan,
and Bhimaji Bin Assaji, Patil Yadoaij, the
Mukadam (or Chief Patil) of the village of
Jiregaum, in the Patas Taraf of the Prant of Puna,
sur 1214 Hejri.

The reason of this deed of purchase being executed
is, that the Mukadam (or chiefship) of the above-
mentioned village, Jiregaum, being exclusively mine,
and that as there has been a severe famine in the land
the whole of this year, and many have died for want of
food, and as I also find myself reduced to the last
extremity, from an absolute want of every kind of
sustenance, or means of procuring it, excepting by dis-
posing of my Wattan (hereditary office, and lands
perhaps) and Service ; if I were not to dispose of some
of it I should die, and the whole world would be lost
to me, I have resolved to save my life by dividing my
Wattan Yriti, and admitting partner to its engage-

With this fixed design I have come to you, and fallen


on your neck, begging that you will preserve my life
during the continuance of the famine, and that, in con-
sideration of your doing so, you will accept a half of
the rights of my Mukadami, while I retain the other

Thus petitioning and speaking to jou, in the strongest
manner you have consented, and I now execute this
agreement, to testify my voluntary relinquishment in
your favour of half my rights or sole Mukadami of
the above-mentioned village, and that in consideration
thereof, I have before witnesses accepted and received
seven hundred and one rupees. You have thus pre-
served the lives of my familj^ and we shall henceforward
jointly eujoy all rights (Thag), dignity (Manpan), etc.,
according to the undermentioned detail.


1st. Ghugari. Two Maunds, at the rate of sixteen
Pailis per Maund on each cultivated Cliahur of land.
Half this grain or half its value shall be yours, and
half mine.

2nd. Bhai. Jama on the annual present from the
Sarkar, on settling the Jama, amounting to 25 rupees,
shall be one half yours and one half mine.

3rd. Falbhara. For every Chahur of cultivated
land I am entitled (at the reaping season) to an hundred
bundles of the grain produced ; half of this shall be
yours, and half mine.

4th. HuRDA NiMBOR. The half of what I receive
from each field on these accounts shall be yours, and
half mine.

Bemarl-. Hurda is unripe Jarvi, which it is con-
sidered pleasant to eat roasted : the quantity received


b)^ the Patil from each field is from one to two
Piiilis. Nimbor is unripe Bajari, taken for the same

5th. Malitun. For products of the earth from irriga-
tion, you shall receive half of these products, and of all
new similar products which come to my share.

Beinark. This Thag is very uncertain : it relates
chiefly to vegetables and garden products.

6tli. Eahadaricha Vasul. Half shall be yours and
half mine.

riemarh. This is a small exaction of from one to two
annas, taken from travellers who stop at the village.
It is distinct from Jaglya, or what is paid to the
Eamoshis of the village for keeping watch at night
over travellers' property.

7th. Sandiiar Telachi (rights from the oilman) ;
half shall be yours, and half mine.

Bemarli. There is a considerable quantity of oil
produced in the Deccan from plants sown annually, and
cultivated in fields, either singly or mixed with grain ;
the most common plants of this kind are the Til, the
Javas, the Kaharale, Ambiidya, Kardai, and Bhuimug.
The Patils, in some places, send round every evening for
oil, when each oilman puts alike in the dish. Others
receive their quota monthly, and others annually.

8th. Koshtijache Mag (weavers' looms). "We shall
each have half.

Iicmarlc. Each loom pays, at the end of the year,
one cloth of the description of cloths woven on it.
A Kosliti is a weaver of Bands of a cloth which
answers the purpose of a Sadis, of Pasodes, and
sometimes of Sadis. Besides Koshtis, there are other
kinds of village weavers, Jains, Salis, Dhangars
(who are also shepherds), and Momins. The last are


9tli. Dhangarache Mag (woollen weavers' looms).
Half shall be yonrs, and half mine.

10th. MoH Takafa. What is received on market-
days, or fairs, from shopkeepers, Banians, etc.; such as
tobacco, Supari, Nagvel Pan, Giil, etc.

lltli. Bapkoti Jamin (Minis land). Nineteen
Piukas of this land, yon shall have half; that is, eight
Piukas in one place, and a Piuka and a half in
another place which contains a well, the whole of
which I give np to yon. I retain the other half of the

12. I have a well in one Piuka of ground appro-
priated for the growth of vegetables ; half shall be yours,
and half shall remain mine.

13th. You shall have half my tenement to reside in.

14th. Attached to the Mukadami, or Patilship,
there are Inam lands to the extent or half a Cliahur,
or six Kukjis. You shall enjo}^ half of this, while I
retain the other half.

15th. The village Mahfirs who perform service for
me, shall also do yours.

1 Gth. Close to the village I have three Rukas of land ;
one and a half Euka shall be yours, and the rest con-
tinue to be mine. But besides this, there is a quantity
of land without tenants or labourers, and which belongs
to the village. You shall take half of this land, while
I retain the other half.

RentarJi. The meaning of the latter sentence is,
perhaps, that they should enjoy an equal title to the
disposal, o]', if it may be termed, to the patronage of
the land, because there is always a small fee received
by the Patils who let out or sell the occupied fields of
the village. This passage, however, argues strongly
the right of the Patils to the disposal of all lands not
possessed by the Government, as ' Sheri and Kurau'



1st. Taski. (The amiual Government present on
the full payment of the revenues.) We shall receive
Tasri year and year ahout.

2ncl. On the festival of the Holi, it will be customary
for both to bake bread. The musical instrument players
shall come to my house first, and go playing before me
till I arrive at your house, when we shall both set out ;
my bread being carried on the right of your bread, and
on arriving at the place of worship (a tree) I shall tie
up yours under it. We shall then together equally go
through the worship and the rest of tlie ceremony con-
jointly and at the same time.

3rd. On the occasion of Shiralshet (a ceremony
which occurs on the Shasti, or Gth, the day after
Nagpanchami), we shall both make an image of
Shirjilshet (a Eajah who reigned two Ghatkas), and
together carry the images, after our women have danced
round each, to the well or tank, and throw them into
it at the same instant. Your Shiralshet shall go in
procession on the left of mine.

4tli. On the Pole Amavashya, the bullocks of both
shall set out at the same time — yours on the left, and
mine on the right — and in this way, the one equal with
the other, they shall be walked in procession round
Hanunicin; but the music shall precede my bullocks
home, while yours remain until it returns, when you
shall bring your bullocks home with music also.

5th. On marriages and Pats I shall first receive
Vida, Tilak (Pan Supari, and a mark on the forehead),
and then you ; on like occasion the Khandwa (a
large, round sweet cake) shall be equally shared
by us.


6tli. We shall worship not all the old gods, but all
the new ones that may be set up together, and not
before or after each other.

7th, The heads of all goats sacrificed to any of the
gods which before were wholly mine, shall now be half
of each head yours.

Bemarl:. Hauuman is never offered the sacrifice of
au animal; to Bhawani, Khandoba, and Bahairoba,
such sacrifices are acceptable ; the carcase of the
goat is eaten by the owner of the goat and his

8th. On the full moon (of Magh) I shall receive a
goat, and then you shall receive one.

9th. We shall be entitled to a pair of shoes from the
Chambhar once a year.

10th. The village Dherds, on festivals and great
occasions, shall give us both a piece of firewood, but
mine shall be given first.

11th. On Kaul Patras my name shall be written
uppermost, then j^ours, and below only one Plough
(plough is the signature of a cultivator).

12th. We shall each have a goat on the Dasara, and
their value will be put in the village expenses.

13th. On the Divali, etc., the pipers shall play at
my door first, and then at yours.

Online LibraryMountstuart ElphinstoneSelections from the minutes and other official writings of the Honourable Mountstuart Elphinstone, governor of Bombay. With an introductory memoir → online text (page 27 of 41)