CHAPTER II LANDOWNERS AND TENANTS

Rural communities. Before describing the machinery of the administration, it is well to say something of the agricultural communities for whose benefit mainly it exists. The reader is supposed to be familiar with the chapters in the Settlement Manual, which deal with “Tenures and the Rights of Landowners” and “The Rights of Tenants.”(Chapters VIII and IX. The former may be usefully supplemented by “Tribal Law in the Punjab” by Roe and Rattigan 4th edition. As regards the other classes found in village communities – the grain dealers, artisans and menials – see paragraphs 130,338 and 390 and as regards rents, see paragraphs 311,312,322,339,344 and 355 of the Settlement Manual , 4th edition) The former may usefully be supplemented by some account of the law of presumption applicable to village lands and of the important restrictions impressed upon landowners of the agricultural class by the passing of the Punjab Alienation of Land Act, XIII of 1900.

Commentary

Perpetuity cultivation with condition that cultivator will maintain peachy creates relationship of landlord and tenant.

 

1. Punjab, a country of peasant landowners. The Punjab is essentially an agricultural country one-half of which is owned and tilled by peasant landowners. There are a few large proprietors in most districts but in the whole province of number who pay more than Rs. 500 land revenue is less than 2,500. The majority of owners holding in the plains are less than ten acres, in the hills they are mostly under three acres. The bulk of the population of the Punjab consists of landowners and their dependents and their prosperity and contentment must always be the chief solicitude of Government.

 

2. Dangers to peasant ownership from division of holdings and mis-appropriation by money-lenders - There are two grave economic dangers, which beset the ownership of land in small parcels by peasant proprietors. The first of these is the reduction of the size of many holdings below an area sufficient to support a family in comfort. This is due to the operation of the law of inheritance under which sons, on the death of their father, each take an equal share of the family land. It is easy to exaggerate the effect of this law. Most small owners are able to get additional land on rent, and where means of livelihood are scanty, the difficulties in finding brides are apt to prove insuperable. Apart from the unpopular remedy of interfering with the law of inheritance, there are indirect means of mitigating the evil of over population. One has been found in the colonization of large tracts of State land rendered culturable by the construction of new canals. Another has been the increasing diversification of occupations in towns.

 

The second, and more serious, danger was the transfer of land by sale and mortgage to those whose outlook on life prevented them from cultivating it with their own hands. (See in connection with this subject paragraph 379-381 and 402-406 of the settlement Manual 4th edition)

 

3. Oscillations of opinion on subject - The political advantage of maintaining the existing framework of society, and of keeping the land in the hands of those whose hereditary occupations was tillage, was fully recognized by the first administrators of the Punjab. There followed a time in which the importance of this object was less keenly felt and the possibility of attaining it was denied. The third phase of opinion, which is that now predominant, regards the expropriation of the old landowning tribes with at least as much aversion as did the earliest administrators of the province, maintaining that it is not only politically, but also economically, disadvantageous. The causes of these remarkable oscillations of opinion from a curious chapter in the revenue history of the Punjab, which may be noticed briefly before describing the actual provisions in force at different times regarding pre-emotion and restrictions on the transfer of land.

 

4. Apologetic tone adopted by early administrators as to measures adopted to preserve stability of village communities - While experience acquired elsewhere led shortly after annexation to the adoption of measures to prevent the intrusion of aliens into village communities by the purchase of land, some of the ablest officers held that these measures were open to the reproach of economic unsoundness, and that the prospect of agricultural improvement by the attraction to the soil of the capital of the moneyed classes was being sacrificed to the importance of political stability. IN his commentary on the Punjab Civil Code, Mr. Montgomery felt constrained to apologize for the maintenance of the law of pre-emption. Later, Mr. Cust remarked in his Revenue Manual: “The principle (of pre-emption) is not defended on any economic grounds, but is maintained for social and political reasons,” and contemplated without regret” a gradual process” by which the existing village communities might “melt away and give place to a more modern, and perhaps more politically nice, distribution of property.”

 

5. Causes of increase of transfers. The disposition to look on unlimited power of transfers as an essential feature of proprietary right and a necessity of economic progress was strengthened by the assimilation of the law and procedure of the Punjab with that of the older provinces, which resulted from the extension of the Code of Civil Procedure to the province in 1866, and the establishment of a Chief Court in Lahore in the same year. About the same time the policy of moderation and fixation of the land revenue began to make land attractive as an investment. Titles had been clearly determined, and the moderation of the demand made the ownership of land a source of income. The peasant proprietor found his credit rapidly expanding. The old system of limited borrowing on the security of crops, cattle, and ornaments was supplanted by one of extravagant borrowing on the security of the land.

 

6. Increase looked on as beneficial or at least inevitable. Sales and mortgages of land to money-lenders became a feature of village life. By some this was looked upon with little alarm and even with complacency. It was maintained that the resources of the country would be developed by the application to the improvement of the land of capital of the moneyed classes. Even those who disliked the process, were disposed for a time to look on it as the outcome of an irresistible economic law.

 

7. Growth of opinion hostile to free transfer. But, with each quinquennium the alienation of land proceeded everywhere at a more rapid rate and in some parts of the country the area which had passed out of the hands of the original owners amounted to a considerable total. The social and political evils likely to spring from the expropriation of the old landowning classes again came to be keenly felt, and acquiescence became increasingly difficult, and ceased to be regarded as inevitable. The policy of laissez faire expounded by the English economists was no longer considered as applicable to every country and stage of society. Experience also showed that the expectation that the new proprietors and mortgages would be improving landlords was not fulfilled. Very few turned out to be anything but rent receivers, and their tenants lacked the devotion and pains-taking labour of peasant owners.

 

8. Reasons for change of opinion. The interest in primitive institutions aroused by the works of Sir Henry Mayne, and stimulated by the abundant evidence of their survival in India, worked in the same direction. The records of tribal law compiled by Settlement Officers supplied unmistakable evidence that ownership of the modern western type was alien to the ideas of the rural population. It was seen that the Indian conception of property in the soil is that it is vested in family, and not in an individual, and that the owner for the time being is not entitled to dispose of it how and to whom he will.

 

9. Civil courts accept doctrine of limited ownership - This doctrine invaded the civil courts, which were bound by section 5 of the Punjab Laws Act to decide questions of inheritance, adoption and gifts primarily on evidence of custom, and from 1887 onwards it formed the foundation of a series of decisions by the Chief Court on sales and mortgages by sonless proprietors, adoption, gifts and pre-emption.(See chapter III of “Tribal Law in the Punjab “ By Roe and Rattigan) But these decisions, valuable though they were , did not prove effective restraints on the actions of landowners, and in no way reduced the seriousness of the problem which Government had to face.

 

10. Necessity of restricting credit basis of Punjab Alienation of Land Act. The position was at last accepted that the root of the evil was to be found in the inflation of the peasant owners credit and that the only hope of checking it lay in lessening his powers of borrowing by imposing legal restrictions of the sale and mortgage of land. This policy was embodied in the Punjab Alienation of Land Act, XIII of 1900, the provisions of which will be noticed presently.

 

11. Classification of measures taken at different times to protect landowners. The measures taken at various times for the protection of the landowners of the Punjab may be classed under the heads: -

 

(a) The legal enforcement of the custom of pre-emption:

(b) The restriction of transfers by landowners belonging to agricultural tribes:

(c) The exemption from sale in execution of decree of land and other property of hereditary agriculturists.

 

12. Pre-emption: its nature - The origin of pre-emption is clearly explained in “Tribal Law of the Punjab”. “It has been usual to regard this as a village, not as a tribal, custom and as originating in the Mohammedan law. I think that this is quite an erroneous view, and that pre-emption is merely a corollary of the general principles regulating the succession to, and power of disposal of land. In these matters the holder of the estate for the time being is subject, generally speaking to the control of the group of agnates who would naturally succeed him….. They can , as a general rule, altogether prevent allegations by adoption or gift, or by sale for the holder’s own benefit , it would be only a natural rule that, when a proprietor was compelled by necessity to sell , these agnates should be offered the opportunity of advancing the money required, and thus saving what is really their own property.” (“Tribal Law in the Punjab, by Roe and Rattigan pages 82-83)

 

13. Early provisions in Punjab Civil Code, etc. The first administrators of the Punjab brought a knowledge of the existence of pre-emption in village communities from what is now the united provinces. In 1852 the Board of Administration issued a circular (No. 28 of 1852) requiring a landowner who wished to sell his share to offer it in the first instance to the whole community or to some individual co-parcener at a reasonable price to be fixed by agreement, falling which the revenue officer and three assessors were to determine the fair value. Two years later this instruction was embodied and elaborated in section XIII of the Punjab Civil Code. Pre-emption was there declared to apply to village lands and sites in villages and kasbas occupied by shareholders in the estate and to extend to private sales, sales in execution of decree and foreclosures of mortgage. If none of the owners wished to buy, the hereditary tenants (if any) might exercise the right. Provision was made for the valuation of land in case of dispute by committee appointed by the revenue authorities. Pre-emption suits were to be brought in the civil courts, but any issues as to priority among contending claimants and the value of the land were to be referred for decision to the revenue authorities.The chief Commissioner,in 1856,with the object of preserving the integrity of village communities, extended the right to usufructuary mortgages.(Financial Commissioner’s Circular No. 41 of 1856)

 

14. Entries in village administration papers. The customs governing pre-emption were also recorded in village administration papers draw up at settlements made before the passing of the Punjab Laws Act, IV of 1872. “In nearly all the old wajib-ul-arz we find a provision securing this right either to the next heirs, or to the agnates generally, and after them to all members of the village community to the exclusion of strangers.(“Tribal Law of Punjab by Roe and Rattigan page 88)

 

15. Right restricted by Civil Courts. Two early judgements of the Chief Court robbed pre-emption of most of ties value . The court held that the right did not extend to usufructuary mortgages, (Punjab Record case No. 87)except where the village administration paper provided otherwise, and that proprietor by purchase through a stranger to, and at bitter strife with, the original village brother-hood , had as good a title to claim pre-emption as any member of it.(Punjab Record case No. 4)

 

16. Provision of Punjab Act, IV of 1872. The same limitation of the right as regards the transaction in respect of which it exists, and the same extension of it as regards the persons who may claim to exercise it, were unfortunately embodied in the sections of the Punjab Laws Act, IV of 1872, which dealt with pre-emption. That Act, as amended by Act XII of 1878. Provided that the right arises in the case of sales under a decree of otherwise and foreclosures of mortgage, (Section 9)and that unless a custom or contract to the contrary is proved, it exists in all village communities , and extends---

 

(a) to the village site and houses;

(b) to all lands within the village boundary;

(c) to all transferable rights of occupancy in such lands. (Section 10)

In the absence of custom to the contrary. the right was declared to belong to the following persons in the order stated:-

(a) first, in the case of joint undivided immovable property, to the co-sharers;

(b) secondly, in the case of villages held on ancestral shares, to co-sharers in the village , in order of their relationship to the vendor or mortgagor;

(c) thirdly, if no co-sharer or relation of the vendor or mortgagor claims to exercise such right, to the landowners of the Patti or other sub-division of the village in which the property is situate jointly;

(d) fourthly, if the landowner of the Patti or other sub-division make no joint claim to exercise such right, to such landholders, severally;

(e) fifthly, to any landholder of the village;

(f) sixthly, to the tenants (if any) with rights of occupancy in the property;

(g) seventhly, to the tenants(if any ) with rights of occupancy in the village.

 

In case of transfers of rights of occupancy under section 5 of the Punjab Tenancy Act, XVI of 1887, the prior right of the landlord was secured by section 53 of that Act. If he failed to exercise it, pre-emption belonged, first, t the tenants (if any)having a share in the occupancy right proposed to be sold and secondly, to the other occupancy tenant in the village. (Section 12. By a proviso to the section if Government owned the trees growing on land, it had a right of pre-emption in the land superior to that of any private individual)Where the charkadari tenure prevails(See paragraph 167-170) of the Statement Manual), the adna maliks possessing shares in a well had a right of pre-emption in these shares in preference to the ala malik.(Section 20)

 

Where tow or more persons were equally entitled to pre-emption, the vendor or mortgagor might determine which of them should exercise it(Section 12). Section 13 to 18 of the Act provided for the enforcement of the right. The matter was left entirely to the civil courts, no provision being made for the reference of any question in dispute to the revenue officer.

 

17. Interpretation applied as regards customary rights of pre-emption. It will be observed that, as regards the persons entitled to pre-emption, the Act expressly saved custom.(Section 12) But in practice its 12th section was usually taken, both by Settlement Officers and civil courts as, disposing of the whole matter. The entry on the subject usually made by the former in codes of tribal custom(riwaj-iam)was that pre-emption was regulated by the Punjab Laws Act.(“Tribal Law in the Punjab” by Roe and Rattigan page 83) The chief Courts has held that the village administration papers furnish valuable evidence of custom as regards the persons entitled to claim pre-emption.(Punjab Record No. 98 of 1894. See “Tribal Law in the Punjab “ Page 128 and 130)

 

18. Punjab Act, II of 1905. The recasting of the law of pre-emption with the object of brining it into accord with village custom and ideas became imperative when the Punjab Alienation Land Act came into force the necessary amendments were effected by Punjab Act II of 1905. The right of preemption was declared to exist in respect of agricultural land, as defined in the Punjab Alienation of Land Act, and village immovable property i,e. immovable property within the limits of village sites other than agricultural land.(See Section 3(1) and (2) and section 5 of Act II of 1905. The provisions which relate to urban immovable property lie outside the scope of this work.”) It extends to sales of both proprietary and occupancy right in agricultural land.”(Section 3(4) and 11 of Act II of 1905) . In respect of such land , no one has a right of pre-emption except “a member of an agricultural ,” as defined in the Alienation of Land Act . But this is subject to the proviso that “if the vendor is not a member of an agricultural tribe, the right of pre-emption may be exercised also by a member of the same tribe as the vendor, who is recorded as the owner or as the occupancy tenant of agricultural land in the estate in which the property is situate and has been so recorded for twenty years precious to the date of the sale either in his own name or in that of any agnate who has previously held his agricultural land.(Sections 3(4) and 11 of Act II of 1905)” The most important section of the Ac is section 12, which declares the persons who are entitled to pre-emption and the order in which they can claim it. The intention of sections 22 and 12 of course, is to bring the law into conformity with village custom. Section 12 runs-

 

Subject to the provisions of section 11(Now see section 15 of Act I of 1913), the right of pre-emption in respect shall vest ----

(a) in the case of the sale of such land or property by a sole owner of occupancy tenant, or when such land or property is held jointly, by the co- sharers in the persons who but for such sale would be entitled to inherit the property in the event of his or their decease, in order of succession;

(b) in the case of a sale of a share of such land or property held jointly, first in the lineal descendants of the vendor in the male line, in order of succession;

 

Secondly, in the co-sharers, if any, who are agnates; in order of succession;

Thirdly, in the persons described in sub clause(a) of this sub-section and not herein before provided for;

Fourthly , in the co-sharers, (I) jointly (ii) severally;

(c) If no person having a right of pre-emption under sub-clause (a) or sub –clause (b) seeks to exercise the right---

First, when the sale effects the superior or inferior proprietary right and the superior proprietary right is sold, in the inferior, proprietors, and when the inferior proprietary right is sold in the superior proprietors.

Secondly, in the owners of the Patti or other sub-division of the estate within the limits of which such land or property is situate, (I) jointly, (ii) severally;

Thirdly, in the owners of the estate, (I) jointly (ii) severally;

Fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants(if any)having rights of occupancy in such land or property, (I) jointly, (ii) severally;

Fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the property is situate.

 

Explanation 1.- In the case of a sale of a right of occupancy, clauses (a) ,(b),and (c) of this sub-section with the exception of sub –clause fourthly of clause (c), shall be applicable.

Explanation 2. – In the case of sale by a female of property to which she has succeeded through her husband , son , brother or father, the word “agnates” in this section shall mean the agnates of the person through whom she has so succeeded.

 

Chapter IV of the Act deals with procedure. It maintains the jurisdictions of the civil courts. but makes careful provision to prevent pre-emption being used to defeat the objects of the Punjab Alienation of Land Act, XIII of 1900.(Section 20,21,26 and
of Act II of 1905)

 

22-A. Punjab Pre-emption Act, 1 of 1913. The experience gained after the passing of the Punjab pre-emption Act of 1905 showed that several alterations and amendments were necessary. In the Punjab the law of preemption must march hand in hand with the law governing the alienation of land; and although the proposal to amend the Act of 1905 originated in the necessities for removing certain ambiguities and defects of drafting and for rendering more precise the application of section 8, one of the main changes introduced, to wit, the change in section 14, was designed to bring the law of pre-emption more closely into line with the Land Alienation Act. As the statutory agriculturist had disappeared from the latter Act, it was felt that the only differentiating restrictions required were in respect of agricultural land sold by the member of an agricultural tribe, and in respect of such land the right of pre-emption was limited to persons who were members of an agricultural tribe in the same group as the vendor. For all other lands membership of an agricultural tribe in itself created no special preferential right Another main change was in section 8. In the Act of 1905 section 8(2) was introduced mainly to protect from pre-emption land required for commercial and industrial purposes, but it was found inadequate to accomplish the object without the issue of separate notifications by the local Government in the case of each plot concerned. It was, therefore, amplified so as to allow for a general notification exempting all agricultural land sold in good faith for industrial , commercial or residential objects. Punjab Act II of 1905 was, therefore, repealed; and the new Act I of 1913 referred to above it was found that the provisions of the law of pre-emption were being defeated by the purchaser splitting his transaction into two parts by purchasing one kanal of land on the first day and the balance on the second day. If a suit for pre-emption was brought with respect to the second sale by the village proprietors, he could successfully defend the suit on the ground that he acquired proprietary right in the village one day prior to the second purchase. (See case of Nadir Ali Shah versus Wali & C. Published at page 486 of Indian Law Reports Lahore series volume V of 1924) To prevent such cases occurring in the future, a new section, No. 28-A ; was inserted in the main Act by an amending Act. No. II of 1928 which came into force from the Ist December, 1928. By this addition it should be impossible for a purchaser to defeat the law of pre-emption by splitting his transactions into two parts and to retain the property acquired by the seconds purchase, even through he may subsequently lose the property acquired by his first purchase.

 

19. Commissioner’s sanction to transfers to strangers formerly required. There used to be an old rule which required the sanction of the Commissioner to the transfer to a stranger of a share of land in a village community. It was more a device to ensure that reversions had an opportunity of exercising their right of pre-emption than an attempt to restrict freedom of contract. Mr. Cust, in 1860, explained it as follows:” The right of pre-emption is not to be evaded; the sanction of the Commissioner must precede all such mutations and. Within a period of three months from the transfer taking place or being made known to the parties concerned, the validity of the transfer may be dispute by a regular revenue suit under paragraph II, part I, Chapter XIII; of the Punjab Civil Code.”(paragraph 13 of Financial Commissioner’s Book Circular No. XLVII of 1860)

The rule was retained in the instructions on mutation procedure under the first Punjab Land Revenue Act , XXXIII of 1871 . But it was there directed that “if the transferee has obtained possession, and no suit for pre-emption is brought within the term of limitation, or if such suit, when brought is dismissed, mutation of names shall be sanctioned.” This may have had some effect in discouraging transfers to strangers, the tendency being to regard a transaction of the sort as incomplete till it had been recognized by an entry in the record of rights.

 

20. Far-reaching change effected by Punjab Land Alienation Act. The causes which led to the passing of the Punjab Alienation of Land Act, XIII of 1900 , have already been explained. The direct restraints which it imposed on freedom of transfer appeared novel at the time although restrictions on free transfer are found in one form or another in many countries.

 

21. Scope of the Act. The Act came into force on the 8th of June, 1901. It extends to the whole of the Punjab(Section 1(2), but power is given to exempt by notification any area, person, or class of persons wholly or partially from its operation(Section 24). The only exempted district ins Simla, except the ilaqa of Kotgarh in the Kot Khai Tahsil, but all municipal and cantonment areas in other districts have been excluded from the operation of the provisions restricting freedom of transfer(Punjab Government notification No. 16176-R. & A dated 21st June 1919. The provisions forbidding mortgages by way of conditional sale (section 10) and sale in execution of a decree of land belonging to a member of an agricultural tribe(section 16) apply to municipal and cantonment areas.). The Act applies to the rights of occupancy tenants as well as to those of landowners(See section 2(3) of Act XIII of 1900 . As to transfers by occupancy tenants see also chapter V of the Punjab Tenancy Act XVI of 1887). It classifies alienation’s as permanent and temporary. The former includes sales, exchanges, gifts and wills(Section 2(4) Gifts for a religious or charitable purpose , whether made inter vivos by will are not permanent alienation’s for the purpose of the Act,); the later mortgages and leases.

 

22. Usufructuary and collateral mortgages. Mortgages are broadly divided into usufructuary and collateral mortgages. In the former the mortgagee takes possessions of the mortgaged land, enjoying the rents and paying the land revenue, the difference between the rent and the revenue being regarded as equivalent to the interest on the mortgage debt(This was the almost universal form of usufructuary mortgage in the Punjab before the passing of Act XIII of 1900 . “(Possession means of course possession of the rights of a landlord. The mortgagor was often retained in cultivating possessions as tenant at will under the mortgagee. For the legal definition of usufrctuary mortgage see section 2(5). It embraces cases in which the rent and profits are appropriated not only in liew of interest , but also “in payment of the mortgage –money , or party in lieu of interests and partly in payment of the mortgage money.). In a collateral mortgage the mortgagor retains possession of the land so long as he pays interest and installments of principal according to the terms of the mortgage-deed . If he makes default , the mortgagee can claim to be put in possession.

 

23. “Members of Agricultural Tribes” And “Agriculturists”. The provisions of the Act which deal with temporary alienation’s only recognize two classes of persons—

 

(a) Those who are members of agricultural tribes and

(b) Those who are not members of agricultural tribes.

Upon the latter no restrictions of any kind are imposed. Those relating to permanent transfer originally introduced a third class described as –

(c) Agriculturists.

 

24. “Members of Agricultural Tribes” meaning of term.- The first class consists of persons belonging to the tribes notified as “Agricultural” under the powers conferred by section 4 of the Act, and the second obviously includes all other persons. Subject to the exceptions noted below, the lists of agricultural bribes which have been gazette(Punjab Government Notification No. 63, dated 18th April 1904 and Appendix A to Financial Commissioner Standing Order No. 1 –Alienation of Land) comprise every tribe dependent on the land for support which owns any considerable area of land in the district under which its name is shown. Brahmans have been excluded for the present even from the main group of those districts in which they own much land and cultivate with their own hands because they are largely engaged in money-lending and other non-agricultural pursuits. They have been notified in separate groups.

 

25. “Agriculturists”; meaning of term. The first two groups are in the main natural ones, but the third, or that of “agriculturist” was defined as “a person holding agricultural land who, either in his own name or in the name of his ancestor in the male line, was recorded as the owner of land or as an occupancy tenant in any estate at the first regular settlement; or if the first regular settlement was made in or since the year 1870, then at the first regular settlement or at such previous settlement as the local Government may by order in writing, determine.” The provision was introduced to mitigate what appeared to be the hardship of preventing acquisition by those who were old landowners . Experience proved that it was unsuitable and it was repealed in 1907.

26. Cancelled.

27. Restrictions on sales. There are no restrictions on the purchase of land but only on its sale. The sale by the member of an agricultural tribe to anyone not belonging to such a tribe in the same district requires the sanction of the Deputy Commissioner(Sections 3(1) and (2)). Sanction may be given either before or after a deed of sale has been drawn up and possession given . If sanction is refused the sale takes affect as an usufructuary mortgage in the first of the three forms described below (See paragraphs 40-42 of this manual)for such term not exceeding twenty years and on such conditions as the Deputy Commissioner may think reasonable.(Section 14).

 

28. All agricultural tribes in each district from a single group. For the present all the agricultural tribes in each district, with a few exceptions noted below. Have been notified as forming a single group(Punjab Government notifications No.21-S dated 22nd May 1901 and No. 114, dated 16th July 1902). Members of agricultural tribes have therefore, with these exceptions, full powers of selling and buying inter se within the limits of the district in which they own land . Should this broad system of grouping lead anywhere to the rapid expropriation of one tribe by another, the formation of small groups of tribes my become necessary. Brahmans and other agriculturists in some districts have been declared as separate groups of agricultural tribes within their respective districts from 1909 onwards. (See part B of the appendix to Financial Commissioner’s Standing Order No. 1)

29. Cancelled.

30. Cancelled.

31. Order sanctioning sale does not affect rights of reversions . The executive order by which a Deputy Commissioner sanctions a sale in no way affects any right which reversion’s or other have to contest the validity of the transfer by legal proceedings or to claim pre-emption.(Section 5)

 

32. Exchanges gifts and wills. All that has been said above of sales applies equally to exchanges , gifts and wills . Death –bed gifts to Brahmans often known as dohli, are not usually regarded as subject to the provisions of the Act. But the amount which can be alienated in this way is limited by custom, and if it is exceeded. The donor’s heir can sue to have the area reduced to what is permissible by tribal law.

 

33. Instructions as to giving or withholding sanction to sales. The following instructions have been issued by the financial commissioners with the approval of Government as to the considerations, which should influence a Deputy Commissioner in giving or withholding sanction. Subject to the proviso to sub-section (iii) below he need not concern himself with the possible rights of reversions or pre-emptors. –

(i) Sanctions should not be given unless the Deputy Commissioner is satisfied that the transfer is really advantageous to the vendor and his family. If a zamindar depends entirely or mainly on his land, no alienation should ordinarily be allowed which will reduce the land he retains to less than is required for the support of himself and his family.

(ii) Sanction should be given if the Deputy Commissioner is satisfied that there is no intention of evading the Act when the object of the purchase is to obtain.-

(a) A site for a workshop or factory, for building for the accommodation or welfare of persons to be employed in them, for a power installation for working industrial enterprise, the health of persons engaged as laborers or otherwise in connection with such;

(b) A building site close to a town or village site.

(iii) Sanction may be given to an alienation of land-

(a) by wealthy zamidars owning much land, for commercial reasons or to improve or consolidate their properties;

(b) by indebted zamindars owning mortgaged land, and desiring to sell a part of their land, in order to raise money to redeem the whole or part of the rest only if the Deputy Commissioner is satisfied that the transfer is really advantageous to the vendor and his family, and that the vendor is not able to sell the land to a member of an agricultural tribe included in the same group as the vendor at a price which will enable him to attain his object;

(c) proposed or effected in favour of zamidars who, by reason of their insignificant numbers, have not been classed in the particular district as members of agricultural tribes;

(d) to bonafied artisans who are not professional money-lenders. It is desirable to encourage thrifty members of the artisan class to become owners of small plots of land when the alienation is not disadvantageous to the vendor and his family;

(e) by a member of an agricultural tribe in one Punjab district to a member of the same tribe or group of tribesi n another Punjab district. In such a case sanction should usually be given as a matter of course unless the allegation is clearly contrary to the intention of the Act. These instructions also apply in the case of persons holding land in districts of the other provinces adjoining Punjab districts who, if they had held land in the Punjab districts, would have been deemed to belong to agricultural tribes. To applications for sanction in favour of subjects of Indian states adjoining Punjab districts somewhat different considerations; apply and such applications should be deal with on their merits:

provided that in cases (a),(b).(c) (d) and (e) no member of an agricultural tribe included in the same group as the vendor has offered, or is ready to offer, a fair price for the land.

 

34. Mortgages by way of conditional sale abolished. The only restraint on mortgage which the Act makes generally applicable is contained in its 10th section, which abolishes the form of mortgage by way of conditional sale. This was a form whereby the mortgagor agreed that if he failed to redeem by a certain date the mortgage would be changed to sale. All that the money-lender had to do was to prevent repayment of the debt by any will or artifice and the rights of the owner became extinguished without recourse to court.

 

35. Scope of other restrictions. The other provisions regarding mortgages apply only to those made by members of agricultural tribes in favour of persons who are not members of the same tribe or of a tribe in the same group, or in other words , as matters at present stand in the same district (Section 6(1)). When hypothecating his land to such persons, a member of an agricultural tribe must choose between three kinds of mortgages. Two of these are usufructuary mortgages, the mortgagee acquiring for the time being the rights of landlord.

 

36. Usufructuary mortgage for limited period, usufruct extinguishing principal and interest. The first is a mortgage for a limited period not exceeding twenty years, all the rights of the mortgagor being suspend, and the rents and profits enjoyed by the mortgagee being taken as extinguishing by the end of the term his claim for both principal and interest (Section 6(1)(a). This form of mortgage was rare in the Punjab before the act was passed(In Ambala a mortgage of this description was known as “chakota rihn”).

 

37. Usufructurary mortgage for unlimited period with reservation of right of occupancy. In the second form of usufructurary mortgage the term is subject to no statuary limitation; the mortgagor reserves the rights of an occupancy tenant at such cash rent as may be agreed upon consisting of –

(a) the land revenue, plus,

(b) the rates and cesses, plus

(c) an additional sum of exceeding (a)

and this rent is taken as equipment to interest. The mortgagor tenant can not alienate his right of cultivation, and he can only be ejected on some ground which would, under section 39 of the tenancy Act, Justify the ejection of an occupancy tenant(Section 6(1)(c)). Should he abandon the land or be ejected from it, the mortgage takes effect as one in the first form for such term no exceeding twenty years from the date on which his possessions came to an end, and for such a sum of money as the Deputy Commissioner may think reasonable(Section 6(2)). This form of mortgage is very rarely adopted.

 

38. Collateral mortgage. The third form of mortgage is a collateral one in which the mortgagor retains all rights of ownership and cultivation ,a subject however, to be the condition that if he fails to pay principal and interest in accordance with the terms of the contract, the mortgagee may apply the Deputy Commissioner to put him in possession of the land. The mortgage then becomes converted to a susfructary one of the first form for such reasonable. It is also his duty to determine what the principal of the debt in the case of the new mortgage shall be. This will consist of whatever amount he finds to be due on account of the balance of principal and interest outstanding on the old mortgage. In making up the account the Deputy commissioner, need not accept the rate of interest contracted for but may award whatever amount of simple interest the thinks reasonable (Section 6(1)(b).).

 

39. Conditions which may be interested in statutory mortgages - In these statutory mortgages conditions may be inserted limiting the right of a mortgagor or mortgagee in possession to cut, sell or mortgage trees. Or to do any act affecting the permanent value of the land(Section 8(b)). The time in the agricultural year at which a mortgagor who redeems his land may resume possession of it may also be fixed(Section 8(a)) . Any conditions not permitted by the Act which are inserted in these mortgages are null and void(Section 8(2)see also paragraph 47)).

 

40. Revision of terms of unauthorized mortgages. If a member of an agricultural tribe mortgages his land in any unpermitted form, the deputy Commissioner is authorized to revise the terms so as to bring the transaction into conformity with whichever of the statutory forms the mortgagee a appears equitably entitled to claim (Section 9(1)). In the case of mortgages by way of conditional sale executed by members of agricultural tribes before the commencement of the Act, the deputy Commissioner may call on the mortgagee to choose whether he will retain the existing mortgage with the sale condition struck out, or accept, in lieu of it, a mortgage in the first of third of the forms described above(Section 9(2)).

 

41. Procedure in suits to enforce unauthorized mortgages - If a suit is instituted in a civil court on a mortgage by way of conditional sale or in a form unauthorized by the Act executed by a member of an agricultural tribe, the court is bound to make a reference to the deputy Commissioner so that the court is bound to make a reference to the deputy commissioner so that he may exercise the powers referred to in the last two paragraphs.

 

42. Mortgagor’s right of redemption unrestricted - The execution of a mortgage in one of the statutory forms in no way interferes with the mortgagor’s right to redeem his land at any time on payment of the mortgage debt, or in the case of a mortgage in the first or third form, of such proportion of the mortgage debt as the Deputy Commissioner determines to be still due.

 

43. Question whether statutory mortgages will come into use - The local Government has power to permit any therefrom of mortgages to be used by members of agricultural tribes and to the conditions admissible in the forms permitted by the act. Thirty years experience has shown that only the first form of mortgage has proved acceptable. The second form is almost unknown. The conditional sale clause has now practically disappeared.

 

44. Leases - As it would be easy to evade the provisions regarding mortgages by making transfers for long periods in the form of lease the term of leases made by members of agricultural tribes in favor of persons who are not members of the same tribe or a tribe in the same group has been limited to twenty years.

 

45. Restriction on extensions of mortgages and leases. The object of the Act would also benefited if, during the currency of a mortgage or lease for a term limited by law to twenty years, the mortgagor or lessor were free to extend the period by executing a fresh transfer. If the alienation already effected is for twenty years, no further transfer by way either of mortgage or of lease is permitted; if it is for less, a further mortgage or lease is allowed for such a number of years as will Bering the whole period of transfer up to twenty years.

 

46. Restriction on hypothecation of crops. Another device for evading the Act had also to be guarded against. Three is little difference in effect between a mortgage of land and mortgage of its produce. Members of agricultural tribes are, therefore, forbidden to aliendage or charge the produce or any part of the produce of their land for a period exceeding a year without the sanction of the deputy commissioner. There is no interference with borrowing on the security of the next two harvests. The period of one year will as a rule, cover contracts made by landowners with the agents of largess firms engaged in the wheat and oil –seed export trade? Such dealings have been of great benefit to the zamidars in may parts of the country, and if engagements of the sort for a period exceeding one year come before a deputy commissioner, he need feel no hesitation about sanctioning them.

 

47. Sale in execution of decree. The sale of agricultural land in execution of a decree has always been subject to severe restrictions in the Punjab. At first the sanction of commissioners was sufficient. In 1859 that of the Judicial Commissioner was required when the property was ancestral, and not acquired. Afterwards the Financial commissioner became the authority to whom sale proposals had to be submitted. The direct result of these rules was that sales in execution were almost unknown; the indirect that loan without the security of a mortgage on the debtor’s land were discouraged. The same Act, which has put restrictions on mortgages, has forbidden the sale in execution of a decree of land belonging to a mamber of an agricultural tribe. The provisions of section 72 of the Civil Procedure Code (Act V of 1908) have therefore ceased to be of much practical importance so far as the Punjab is concerned. Orders issued by any court for the attachment, sale or delivery of land or interest in land or for the attachment or sale of produce. Must be executed by the collector or some revenue officer appointed by him. The rules on the subject will befouled in chapter 12-m and 12-n of the Rules and Orders of the High Court, volume I and Finical Commissioners Standing Order No. 64.

 

51-A Temporary alienation’s in execution of decrees. Sale of land belonging to a member of an agricultural tribe in execution of a decree is forbidden by section 16, but at one time a learned judge of the High Court held that the land of an insolvent agriculturist vested in the official receiver who could sell it to another member of an agricultural tribe in satisfaction of a decree passed by an insolvency court. Division Bench of the same court subsequently overruled this interpretation of the law.

It is, however, a settled question that a civil court can in execution of a decree, orders a temporary alienation of the land of a judgment –debtor who is not a temporary alienation of such land. (Vide Full Bench rulings in one Lahore 192). Following that ruling, a learned judge held that an order by a civil court, directing the temporary alienation of the land of a member of an agricultural tribe for more than twenty years, even if the lease be ordered in favor of a person who is not a member of an agricultural tribe, did not contravene the provisions of the Punjab Alienation of Land Act. Formerly it had been the settled practice of the civil courts not to order temporary alienation’s for more than twenty years in such cases. But as result of this ruling the practice was departed from. And in not a few cases civil courts ordered alienation’s for as long as fifty years. As such action was a violation of the original objects and scope of the Act, the Punjab Alienation of Land (Amendment) Act, 1 of 1931, was passed. The new Act, which sought to re-establish and preserve the status quo ante, has absolutely limited temporary alienation’s in all cases whatsoever, to a maximum period of twenty years and permits mortgages only in one of the forms mentioned in section 6 of the original Act.

 

48. Other exemptions in favor of agriculturists. By section 60(1),(b) and (c) of the Civil Procedure Code (V of 1908) the following kinds of property belonging to an agriculturist are exempted from attachments :-

(a) implements of husbandry:

(b) Such cattle and seed grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such;

(c) The materials of houses and other buildings owned and occupied by him.

 

When the agriculturist is person liable for the payment of land revenue the proviso to section 70 of the land Revenue Act, XVII of 1887, becomes applicable, and if an order to attach produce is issued, the court should ask the collector to decide what portion of it should be exempted as being necessary for seed grain, and for the subsistence until the harvest next following of the defaulter and his family.”

 

No revenue court or officer must, except for reasons of urgency to be recorded, issue any process of arrest against tenant or against a landowner who cultivates his own land during either of the two harvesting seasons.

 

49. Provisions of Tenancy Act regulating relations of landlords and tenants at will. The chapter on the Rights of Tenants” in the Settlement Manual treats mainly of the history of hereditary tenant right in the Punjab and of the existing law on the subject contained in Act XVI of 1887. The remainder of the present chapter deals mostly with the relations of landlords and tenants –at will.

 

50. Proportion of land cultivated by tenants –at-will. About 43 percent of the land in the province is tilled by the landowners themselves, 9 percent by occupancy tenants at will, a few of whom pay no rent, if the five south western districts of Jhang, Montgomery, Multan Muzaffargarh and Dera Ghazi Khan are excluded, 44 percent are cultivated by tenants – at will, 47 percent by the landowners and 9 percent by occupancy tenants. The tenants –at –will are for the most part also landowners in the same village who owns too little land of their own to provide a decent livelihood.

 

51. Lien of Landlord on produce. The rent of a tenant’s holding is a first charge on its crops. If any other creditor gets the produce attached in execution of a decree against the tenant, the landlord can insist on the its sale and on being paid from the proceeds whatever he proves to be due on account of the rent of the current harvest and of any unpaid rent which fell due within the year immediately preceding the date of his application to the revenue of fiber on the subject. The finding of the revenue officer as to the amount to which the landlord is entitled has theforce of a decree.

 

52. Rights and duties of landlords and tenants as regards produce. Except in the case just mentioned t, the landlord must not intermeddle with the tending, cutting or harvesting of his tenants crops. But of course where the rent cossets or a portion of the produce he has a right to take part in the division, and to remove his own share. The tenant on his part is bound, where thereunto is taken by division battle or appraisement (kankut) not to remove any portion of the produce at such a time or in such a manner as to prevent the due division or appraisement thereof” and to abstain from dealing with it in a manner contrary to established usage. If he wrongs his landlord in either of these ways, and a rent suit is the result “ the produce may be deemed to have been as full as the fullest crop of the same description on similar land in the neighborhood for that harvest.”

 

53. Division by referee appointed by Tahsildar. Delay in dividing a garnered crop may result in very serious loss from the sprouting or rotting of therein. The landlord or tenant who is injured by the failure of the other party to attend may apply to the tehsildar for the appointment of a referee to divide or appraise the produce. The referee may carry out the division or appraisement in the absence of one. Of the parties, if after due notice he fails to appear. The result of the referee’s proceedings must be reported to the tehsildar for confirmation. The same procedure may be adopted when there is an dispute between the landlord and the tenant about the division or appraisement.

 

54. Payment of rent though tahsil. When two or more persons are landlords in respect of a single tenancy the tenant is not bound to pay part of his rent to one and part to another. It is their business to appoint one of their numbers to receive the whole rent. Where rent is payable in cash, the landlord may, for some reason refuse, to receive it, or to grant a receipt. Their may for example, be a dispute about the amount and he may refuse to sign an acquttance unless the tenant will give him all the claims. Again a tenant may occasionally be in doubt that the person is who is entitled to be paid the rent. In either case it is open to him to apply to the tahsildar to accept the rent as a deposit, and pay it to the person whom he considers entitled to receive it.

 

55. Notice of relinquishment. Tenants at –will usually hold by the year only, leases for a term of years being still uncommon. Arrangements are as a rule, made for the agricultural year (Kharif –rabi) the outgoing tenant giving up the land after the spring crops have been harvested. The law provides that neither party to a contract of letting shall be able to put the other in difficulty by failing to give timely notice of his intentions as regards the next agricultural year, which means in the tenancy act, the twelve months beginning on the 16th of June. A tenant who proposes to quit his holding after the Rabi harvest must inform his landlord on or before 15 January. If he fails to do so he becomes liable for the rent of the next agricultural year unless the landlord arranges for the cultivation of the land by someone else. Except with the consent of the landlord a notice of relinquishment must apply to the whole of the lease land. If the tenant thinks it desirable for his own security. He can give notice to the landlord through the tahsil.

 

56. Notice of ejectment of yearly tenants. A landlord who wishes to eject a tenant at will can apply to a naib tahsildar or tahsidar for the issue of a notice. The application must be made in time for service to be effected on or before the 15th of November. Subject to that qualification, the application can be lodged at anyy time after the beginning of the agricultural year. The above date is a very suitable one as it falls before the chart crop has been completely cleared off the ground and before the winter rains. The tenant therefore gets notice before ploughing for the harvests of the next agricultural year begins.

 

57. Contents of notice. The notice requires the tenant to give up the landbefore the 1st of May and informs him that if for any reason he disputes his liability to ejectment, he must bring a revenue suit for that purpose within two months from the date of service. It also warns him that, in the event of his having any claim to receive compensation for improvements or disturbance before ejectment. He must, within two months, present an application to an Assistant Collector of the first grade. The circumstances under which such a claim arises will be discussed later. It is enough to say here that if it is established ejectment must be styed until it is satisfied.

 

58. Ejectment order. The tenant may obey the notice and relinquish the land before the 1 May. If without instituting a suit to contest liability to ejectment or lodging an application for payment of compensation. He simply remains in possession, the tahsildar, on being satisfied that the notice has been served passes an ejectment order. If compensation is claimed the order must be issued by an Assistant Collector of the first grade. An ejectment order is enforced in the same way as a decree of a civil court for the possession of land. It can only be executed between the 1 May and 15 June. Falling execution at the proper time the tenant is entitled to keep the land for the next agricultural year. Applications for compensation on account of improvements or disturbance should bedealt with promptly. It is unfair that a landlord should be kept out of his rights by the dilatoriness of a revenue officer.

 

59. Protection of standing crops. If, when the order is executed. It is found that the tenant has crops standing on any part of the land he must not be ejected from that part till they ripen and he has had a reasonable time for harvesting them. On the landlord’s application, the revenue officer who ordered the ejectment may fix a fair rent to be paid by the tenant for his extended use of the and or the may value the crop and allow the landlord to take possession on paying the amount into his office. Where the tenant has prepared land for sowing but has not sown it he may ask the revenue officer to determine what amount is due to him from the landlord on that account. His right to receive anything is contingent on his having acted conformably with local usage in the method of tillage adopted.

 

60. Ejectment of tenants for a fixed term and occupancy tenants. So far we have been dealing with the method by which a landlord can get rid of a yearly tenant. The law as regards the ejectment of occupancy tenants is briefly described in paragraph 213 of the Settlement Manual but it will be convenient to state it more fully here in connection with that which governs the case of tenants for a fixed term exceeding one year under a lease or a decree or order of a competent authority. A tenant of the latter calls may throw up his holding at the end of the term without giving any notice to his landlord. Till then he is like an occupancy tenant protected from ejectment by any summary process. A landlord seeking to outset him must bring a regular suit against him.

 

61. Order for ejectment of occupancy tenant failing to satisfy decree for rent. There is one case in which summary process can be used against an occupancy tenant but not apparently against a tenant for a fixed term exceeding one year. An Assistant Collector of the 1st grade can order the ejectment of an occupancy tenant when a decree for an arrears of rent has been passed and remains unsatisfied. But he must first give the tenant an opportunity or satisfying the landlord’s claim by warning him that ejectment will be ordered unless within 15 days he pays the amount due into the Assistant Collector’s Office. These provisions , if worked mechanically may cause hardship where there is much difference between the amount of the arrears and the value of the tenant right. It must be borne in mind that the tenant is often a very ignorant person. A considerate revenue officer will in such a case summon him to receive the written notice in his presence and explain to him the result which will follow on failure to pay within the appointed time. There is no legal objection to granting a short extension of time for payment for the issue of ejectment order may be deferred if good cause is shown for so doing. The assistant Collector should also ascertain whether the tenant has any claim to compensation for improvements or for disturbances. If he has it must be gone into before any further action is taken. Where an ejectment order is passed it can as rule as in the case of a tenant at will only executed between the 1st May and 15th June. But where this limitation would be unfair to the landlord, as it might be for example where the tenant had delayed matters by a basses claim for compensation execution can be allowed at any time.

 

62. Remedy of tenant dispossessed before receipt of compensation due. If by any accident or mistake a tenant entitled to compensation for improvements or disturbance or for the value of unharvested crops or the preparation of land for sowing is ejected before the amount due has been determined he will not be reinstated but he can within one year from the date of his dispossession, apply to the court which decreed or to the revenue officer who ordered his ejectment to fix the sum due and require the landlord to pay it. An order passed on such application has the same effect as a decree for money.

 

63. Grounds of action for ejectment and reinstatement. The grounds on which an action for ejectment may be brought and the circumstances under which a tenant who considers that the has been wrongfully dispossessed may sue for reinstatement or for compensation will be dealt with in the chapter on Revenue courts.

 

64. Nullity of entries in records of rights or agreements increasing landlord’s power of ejectment. Any clause in a record of rights whenever made or in an agreement made after the passing of Act XVI of 1887 empowering a landlord to eject a tenant otherwise than in accordance with that enactment is void.

 

65. Leases current when new assessment is introduced. Provision is made in section 34 of the Act for the avoiding of leases whose term is still running when the revenue is altered at a general reassessment, failing a revision of terms made with the assistance of a revenue court and accepted by the tenant, when the assessment has been raised and by the landlord when it has been reduced. Leases for the term of settlement continue in force until a revised assessment actually takes effect unless a contrary intention clearly appears in the agreement.

 

66. Improvements - The question of “Improvements in tenants holdings may occasionally cause some little difficulty for no very broad line of distinction can be drawn between the simplest kinds of improvements and some of the operations carried out by tenants in the ordinary course of tillage. An exhaustive explanation of the terms as applied to a work executed on an agricultural tenancy is given in section 4(19) of the tenancy Act. The important point is that the work must be one by which the value of the tenancy has been and continues to be increased. The term does not embrace every operations which increases for a time the value of he holding. But only such are outside the everyday course of husbandry and possess a greater or less degree of permanency. The sinking of a masonry well to irrigate a field hitherto dependent on the rainfall is obviously an “Improvement” So is the making of a kacha well in stiffest soil for this involves a good deal of labour and the well will last for several years. But the digging of a shallow kacha well of the ordinary type which waters a few bighas of crops in the rabi and falls in the rainy season. Is not improvement.”

 

67. Improvements by landlords. In a country of peasant proprietors like the Punjab the bulk of agricultural improvements is made by the landowners on lands over which they have full control. The question of improvements in tenants holding is only of practical importance as regards those which are affected by occupancy tenants and the particular class of improvements known as Jangal tarashi or clearance of waste carried out by tenants at will. It is true that by Act XVI of 1887 landlords have the right to make improvements in the lands of occupancy tenants with the previous permission of the Deputy Commissioner and that provision is made in the Act for enhancing the rent of the improved holdings. But as a matter of fact landlords are very chary of speeding money on lands with which their con mainly confined to receiving a rent fixed by authority. Should an application for permission to do so be presented the tenant ought to be board. The point is realty of little importance as disputes are very rare.

The Act permits the local Government to issue rules on the subject of landlords improvements but none have been framed so far.

 

68. Improvements by tenant at will - A tenant at will can only make an improvement with the assent of his landlord but consent may be assumed from circumstances. The courts have now given a number of ruling which are of value as guides. It must be remembered that the question of improvements by tenants is only of importance when compensation is demanded by the tenant.

 

69. Compensation for disturbance. In any case every tenant “who has cleared and brought under cultivation waste land in which he has not a right of occupancy is entitled to compensation great or small . If he is ejected before he has got a full return for his expenditure compensation for disturbance must in no case exceed five years rent of the land and would in many cases probably be far less. If a substantial and lasting improvements has been made the recant will receive compensation for it in addition to compensation for disturbance. A village proprietor tilling part of the common land of the estate or one of several co-sharers cultivating the joint holding cannot claim compensation for disturbance on ejectment. Where rent is paid in grain or by a money rate on crop (Zabti) or by a cash rent consisting only of the land revenue and cesses the rent for the purpose of calculating compensation may be taken as four time the land revenue. The same rule applies where no rent at all has been paid. As the land was ex-hypothesis waste when the tenant got it it will in many cases not be assessed to land revenue. In such a case the above provision must be interpreted as meaning that the rent may be assumed to be equal to four times the land revenue reduced by applying to the holding the rate at which similar cultivated lands in the same estate are assessed .

 

70. Improvements by occupancy tenants. The little of occupancy tenants to make improvements on their own holding is asserted in the 63rd section of the Act. But, when the Punjab was first annexed and for many years afterwards their right to do so was held to be subject to freight restrictions. The points is really of little practical importance now as the law is generally well understood.

 

71. Provisions of the Tenancy Act as to tenants improvements. The first Punjab Tenancy Act. XXVIII of 1868 put the law to tenants improvements substantially on its present footing except that the provisions of that enactment on the subject could be overridden by written agreements or properly attested entries in the records of a regular settlement. This has now been altered. An entry in a record of fights whenever framed or condition in an agreements made after the passing of Act XVI 1887 which purports to limit the rights of tenants to make improvements or to receive on ejectments compensation for improvements already made or for disturbance. Is null and void. A tenant is however free covenant to pay an enhanced rent on account of an improvement made or to be made by his landlord. A written agreement made before the 1st November, 1887, restraining a tenant at will from making improvements is a bar to any claim for compensation. But with this exception improvements made before the Act came into force are deemed to have been made in accordance with the Act.
72. Ejectment and enhancement of rent barred till tenant has received compensation - A tenant who starts an improvement after his landlord has used for his ejectment, or caused a notice of ejectment to be served upon him, does so at his own risk and has no claim for compensation if he is turned out of holding. But subject to that reasonable exception a tenant who has improved his holding is protected both from ejectment and from enhancement of rent till he has received compensation from his landlord.

 

73. Calculation of compensation. In estimating compensation the points for consideration are---

(a) The amount by which the value or the produce or the tenancy or the value of that produce is increased by the improvement.

(b) The conditions of the improvement and the probable duration of its effects;

(c) The labour and capital required for the making of such an improvement;

(d) Any reduction or remission of rent or other advantage allowed to the tenant by the landlord in consideration of the improvements; and

(e) In the case of a reclamation or the conversion of urinated into irrigated land the length of time during which the tenant has had the benefit of the improvement.

 

74. Compensation by grant of lease or reduction of rate of battle. Compensation must be assessed and paid in money unless the parties agree that it should be made in whole or in part by the grant of a beneficial lease of land or in some other way. It is always open to a landlord and a tenant to settle any claim for compensation by the offer and acceptance of a twenty years lease at the existing rent or at any other rent that may mutually agreed upon. Where a well has been sunk a reduction of the landlord’s batal share in consideration of the extra expenditure incurred and required is a very suitable from of compensation. When crops are divided, it is quite common to find the customary rate for well crops lower than for rain crops.