J. C. 1876 DAMODHAR บ. DEORAM KANJI. material to a correct understanding of the arrangements between the Indian Government and the Thakoor of Bhownuggur, and of the steps taken to carry them into effect, it now becomes necessary to advert to those arrangements. It appears that the difference between the position of the Thakoor in his Kattywar estates, in which he continued to exercise his ancient powers, paying a fixed revenue, and his position in his British estates (including his two largest towns and his place of residence), in which since 1815 he had been subject to ordinary British laws, was (in the language of Mr. Aitchison, vol. vi. p. 374)" very irritating to him." With a view (among other things) to remove or diminish this source of discontent, an agreement was concluded between him and the Indian Government in 1860, which is printed at pp. 416-420 of the same volume of Mr. Aitchison's work. It is entitled, "Settlement, framed according to resolutions of the Bombay Government, Nos. 3826 and 3829, dated 23rd October, 1860:"-a title which has the aspect of an agreement as to rent and other terms of tenure, rather than that of a treaty between the head of a sovereign state and a foreign or independent power. When the particular terms of this agreement are examined, they confirm that impression. By the 1st and 8th Articles, the Thakoor of Bhownuggur and the British Government reciprocally agreed to cancel, from and after the 1st of May, 1861, "the lease of the villages of the Thakoor's talooks in the districts of Dhundooka, Ranpore, and Gogo, which was executed in A.D. 1848," and "instead thereof, the Thakoor agreed to pay, for the whole of the villages enumerated in that lease, a fixed jumma of Rs.52,000 yearly for ever," which sum "shall not be in any way affected by the result of any action or other process brought by any party against the Thakoor's right of possession, in any part of the said talooks; nor shall the said estates (excepting Bhownuggur, with Wudwa, Sehore, and the ten villages thereof, about to be attached to Kattywar) be exempted on account of this payment from any general taxation, not coming under the head of land tax or rental, which Government may impose on their districts under the regulations. It appears, therefore, that the talooks in Gogo, including Gangli, which were "about to be attached to Kattywar," had been included in the lease of 1848, which was then to be cancelled: and that, although the Government did not reserve as to those particular talooks the same right of "general taxation" which they expressly reserved as to the residue of the Thakoor's British estates, which were intended to continue subject to the Bombay Regulations, still those talooks were included in the estates in respect. of which a fixed jumma of Rs.52,000 was to be paid in perpetuity by the Thakoor. By the 2nd Article the Thakoor agreed (certain questions of account between himself and the British Government being thereby adjusted) "to pay up his Kattywar tribute" (ie., the jumma for his Kattywar property, which had been fixed in perpetuity in 1807), yearly in full, according to settlement." By the 3rd and 9th Articles it was reciprocally agreed that the port dues and customs of the port of Bhownuggur should continue to be collected at British rates, and by the British Government; but that when collected the whole net produce of the port dues and three-fifths of the net produce of the Customs (as "the share of the Thakoor") should be paid over to the Thakoor by the Government, who were to retain, as "the share of Government," the other two-fifths of those Customs. The town and port of Bhownuggur were part of the territory to which the 7th Article (that directly bearing upon the present question) relates. That Article is in these words :-"Upon the above conditions Her Majesty's Government agree as follows: Government concede, as a favour, and not as a right, the transfer of Bhownuggur itself, with Wudwa, Sehore, and ten subordinate villages, from the district of Gogo, subject to the Regulations, to the Kattywar Political Agency. This is not the language of cession. It is prima facie nothing more than an engagement for the transfer of the places mentioned (including Gangli), which were then, beyond question, British territory, from a regulation province to an extraordinary jurisdiction. The other Articles are consistent with this view. After the conclusion of this agreement in 1860, a delay of some years followed before anything was done with a view to give effect to the provisions of the 7th Article; "owing " (as Mr. Aitchison states, vol. vi. p. 374) "to some doubts as to the precise status of J. C. 1876 DAMODHAR v. DEORAM J. C. 1876 DAMODHAR V. DEORAM Kattywar with respect to British laws." In 1865, however, the Thakoor pressed for the completion of the arrangement. In the letter from the Secretary to the Government of India of the 31st of May, 1865, to the Acting Secretary of the Government of Bombay, the measure is described as "the contemplated transfer of the town of Bhownuggur, of the district of Sehore, and of the villages in Dhundooka and Gogo, to the supervision, laws, and regulations of the Kattywar Political Agency." By that letter the Governor-General in Council authorized "the contemplated arrangement" being at once carried into effect; with the reservation, however (for which the Government of Bombay were directed carefully to provide), that "in the event of gross misconduct on the part of the Thakoor" (of which the Government of Bombay were to be the judges) "these territories should revert." reason was added for holding that "the projected transfer would have been legalised" by the agreement of 1860, viz., that "Her Majesty's Secretary of State for India had decided that Kattywar was not British territory." A Their Lordships think that if such an opinion had been expressed by the Secretary of State for India (of which no direct evidence is found in the papers before them), and if that opinion. could be proved to be well founded, it would still not have the effect of converting a transfer of certain British territories from ordinary British jurisdiction "to the supervision, laws, and regulations of the Kattywar Political Agency," into a cession of British territory to a native state. Such a cession would be a transaction too important in its consequences, both to Great Britain and to subjects of the British Crown, to be established by any uncertain inference from equivocal acts. Their Lordships assume (though the precise language used does not seem to be quite apt for that purpose) that what was intended was to confer upon the Thakoor of Bhownuggur within the "transferred" districts as large a criminal and civil jurisdiction as that which he exercised in his estates situate within the proper limits of the Kattywar Political Agency, subject only to the same supervision and control of the Kattywar Political Agent to which he was subject in respect of those estates. But such a grant of jurisdiction (if the Government of India or J. C. 1876 GORDHAN v. DEORAM KANJI. the Crown, without a legislative Act, had been able to grant it), would not have deprived the Crown of its territorial rights over the "transferred" districts, or the persons resident therein of their DAMODHAR rights as British subjects. Whatever may have been the opinion of the Indian Government as to the effect of what was done (concerning which their Lordships will only observe that the documents of 1870 and 1871 take it for granted that a cession of territory to a native state had been made, which is the point to be determined), their Lordships' judgment must be founded, not on mere opinions, but on facts; and they find, in point of fact, that there was no cession of territory in this case, unless it can be deemed to have been made by the agreement of 1860, or by the notification in the Bombay Government Gazette of the 29th of January, 1866, (issued, no doubt in obedience to the directions of the Indian Government, contained in the letter of the 31st May, 1865); which merely declared, that "in accordance with the Convention, &c." (i. e., with the agreement of 1860), the villages in question were," from and after the 1st of February, 1866, removed from the jurisdiction of the Revenue, Civil, and Criminal Courts of the Bombay Presidency, and transferred to the supervision of the Political Agency in Kattywar, on the same conditions as to jurisdiction as the villages of the talooka of the Thakoor of Bhownuggur heretofore in that province." Their Lordships agree in the reasons given by the Judges of the High Court of Bombay, on the 2nd of December, 1870, for holding this notification insufficient for the purpose intended; and they are unable to find in any of the other documents afterwards submitted to that Court on the application for a review any good reason for the subsequent departure of the High Court from that opinion, so far as to admit a review. The second notification of the 4th of January, 1873, which appeared in the Indian Gazette, after the review had been ordered, also left the case substantially where it stood before. That notification was merely to the effect that the villages mentioned in the schedule "were on the 1st February, 1866, ceded to the State of Bhownuggur." The nature and effect of the act, so described as a "cession to the state of Bhownuggur," remains (as it was before) a proper subject for judicial inquiry. What was attempted was, in their Lordships' J. C. 1876 DAMODHAR v. DEORAM KANJI. judgment, neither more nor less than a rearrangement of jurisdictions within British territory, by the exclusion of a certain district from the regulations and codes in force in the Bombay Presidency, and from the jurisdiction of all the High Courts, with a view to the establishment therein of a native jurisdiction under British supervision and control. But this could not be done without a legislative Act, which, in this case, was never passed. By the Imperial Statute 3 & 4 Will. 4, c. 85, s. 43, a general power of legislation (with certain exceptions not material for this purpose) was given to the Governor General in Council as to (among other things) "all Courts of justice, whether established by His Majesty's charters or otherwise, and the jurisdiction thereof." This power is, in substance, continued by 24 & 25 Vict. c. 67, s. 22, though the particular clause of the former statute is thereby repealed. By the 24 & 25 Vict. c. 104, s. 9, the High Courts of the several Presidencies were established, with such jurisdiction as Her Majesty should by her letters-patent confer upon them; and under the same statute each of those Courts was also to have and to exercise, "save as by Her Majesty's letters-patent might be otherwise directed, and subject to the legislative powers in relation to the matters aforesaid of the Governor General in Council," all jurisdiction, power, and authority previously vested in any of the East India Company's Courts within the same Presidency which were abolished by that Act. It is unnecessary to refer to later enactments, which only modified these provisions in a way not affecting the present case. The jurisdiction, therefore, of the Courts of the Bombay Presidency over Gangli rested, in 1866, upon British statutes, and could not be taken away or altered (as long as Gangli remained British territory) so as to substitute for it any native or other extraordinary jurisdiction, except by legislation in the manner contemplated by those statutes. Upon two subordinate points in this case their Lordships think it right to add that they agree with the view taken by the High Court of Bombay. Nothing in their judgment turns in this case upon the Indian Evidence Act of 1872, s. 113. The Governor General in Council being precluded by the Act 24 & 25 Vict. c. 67, s. 22, from legis |