Judgement Consolidated Cross-Appeals (No. 60 of 1935), by special leave, from decrees of the High Court (October 9, 1931) setting aside decrees of the Subordinate judge of Ahmedabad (April 23, 1928.) The appellant in each of these 18 consolidated appeals was the ruler of Limbdi State in Kathiawar. The respondents were the mulgametis and landholders in 18 villages of the Khadol Barwala Taluka in Dhandhuka, in British India. The appellant, as plaintiff in the suits, instituted on July 14, 1925, in substance prayed for a declaration in respect of each of the suit villages that he, and not the defendants (respondents), was entitled to be registered as talukdar under the Gujarat Talukdars1 Act, 1888, as amended in 1905. On August 12, 1922, an agreement had been made between the appellant and the Government, in cl. 1 (b) of which the appellant agreed “That the said Mulgametis shall be considered as Talukdars for the purposes of the Gujarat Talukdars Act so far as the Jiwai lands but not the chouth are concerned with effect from June 1, 1921." The main questions in this appeal were whether that agreement was a bar to the appellants claim, and whether the Government were a necessary party to the suits. The facts appear from the judgment of the Judicial Committee. The Subordinate Judge declared that the appellant was the proprietor of the suit villages in question as the recognized talukdar, and that the respondents were not talukdars according to the Gujarat Talukdars Act. On appeal the High Court (Baker and Nanavati JJ.), in separate concurring judgments, set aside the decrees of the Subordinate Judge and remanded the suits " to allow the plaintiff [appellant] an opportunity of joining the Government as a party to the claim as regards the agreement and his absolute ownership of the villages in question " within six months, failing which the suits would be dismissed. 1936. Feb. 3, 6. De Gruyther K.C., and Parikh for the appellant. The respondents are all people who were given the generic name of “Mulgameti” and somewhere around 1750 were either proprietors or petty chiefs. The particular villages in suit are outside the territorial jurisdiction of the ruling chief, all 18 being situated in British India. For years the interest possessed by the mulgametis in their jiwai lands was heritable and transferable. The respondents are all people who were given the generic name of “Mulgameti” and somewhere around 1750 were either proprietors or petty chiefs. The particular villages in suit are outside the territorial jurisdiction of the ruling chief, all 18 being situated in British India. For years the interest possessed by the mulgametis in their jiwai lands was heritable and transferable. There were various transfers of the jiwai and chouth lands, and amongst those who acquired interests in both was the Thakore himself. A very large number of the mulgametis having disposed of much of their interest, the Government being desirous of protecting them against themselves, passed the Gujarat Talukdars Act of 1888. One of the questions in this Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 50 appeal is whether the present respondents are mulgametis who hold directly from Government so that they are in fact talukdars within the meaning of that Act. [Sects. 2, 4, 8, 24 and 31 of the Act of 1888 were read.] The dispute in this case arose in consequence of orders made by the Settlement Officer, who entered as the registered talukdars the individual respondents who held the lands in question. The real point is whether the Thakore was the talukdar, or whether the respondents were talukdars within the meaning of the Act. Until 1905 mulgametis never came under the Act at all, and the only mulgametis who do come under the Act of 1905 are those who hold directly from Government. After the Act was passed a dispute arose between the Thakore and Salangpur village (1) that began in 1914. The District Judge in that case held that the ijardars did come within the Act. On appeal the High Court held that the mulgametis, although they might at one time have been proprietors of the land, had never held directly from Government, and consequently were not talukdars within the meaning of the Act. From that decision there was no appeal to His Majesty in Council. In 1920 or 1921 the Settlement Officer purported to deal with the villages now in suit. The registered talukdar is the person responsible for the Government revenue. The only talukdar within the meaning of the Act is the Thakore, who has been talukdar from time immemorial, and the lord of these villages. In 1920 or 1921 the Settlement Officer purported to deal with the villages now in suit. The registered talukdar is the person responsible for the Government revenue. The only talukdar within the meaning of the Act is the Thakore, who has been talukdar from time immemorial, and the lord of these villages. The mulgametis are not talukdars at all within the meaning of the Act; that was the view taken in the Salangpur case. (25 Bom. L. Repr.726.) In the present case the Subordinate Judge came to the conclusion on the evidence produced, a conclusion also reached by the High Court, that the person who had all along paid revenue to Government had always been the talukdar, and that the respondents never were persons who held directly from Government and consequently could not be recorded as talukdars within the meaning of the Act. The High Court, however, referring to the agreement of August 12, 1922, between the Thakore and the Government in which the Thakore agreed to consider the mulgametis as owners of the jiwai lands, said that this agreement ought to be a bar to the appellants suit in its entirety, and that he had no jurisdiction to bring it notwithstanding s. 8 of the Act they gave him six months in which to make Government a party, failing which the suit would be dismissed. The High Court read the agreement as an admission that the mulgametis were talukdars. The appeal now before the Board deals with the propriety of the order of the High Court in regard to the agreement. Nothing that was done could make the mulgametis talukdars within the meaning of the Act. [Reference was made to the agreement of August 12, 1922; to Order I, r. 9, and to Order II, r. 1, of the Code of Civil Procedure.] There cannot be talukdari estates in relation to sections of land s. 2, sub-s. 1 (b),s. 24. Sect.8, sub-s.1, of the Act of 1888 prohibits a suit against Government. For the purpose of determining the relief claimed—that the mulgametis are not talukdars under the Act—not only is Government not a necessary party, but it cannot be made a party. In the question whether the Thakore or the mulgametis are in independent ownership the Government has no concern whatever the Thakore and the mulgametis are the persons to fight it out between themselves. [LORD THANKERTON. In the question whether the Thakore or the mulgametis are in independent ownership the Government has no concern whatever the Thakore and the mulgametis are the persons to fight it out between themselves. [LORD THANKERTON. It seems to me that the mulgametis can only found on the agreement as an admission. Then we have to find what the value of the admission is.] In Durga Prasad Singh v. Braja Nath Bose (( 1911) L. R. 39 I. A. 133.) it was said (Ibid. 140.) "It was contended that the Government ought to have been made a party to the suit, and that in the absence of the Government the suit was defective and ought to be dismissed.....In their Lordships opinion the Government is not a necessary or a proper party to this suit. Apparently the Government does not claim the minerals under permanently settled estates . . . ." In the present case the Government claims no right as talukdars. The Thakores admission could not make the mulgametis talukdars within the meaning of the Act. In the Salangpur case (25 Bomb. L. Repr.726) it was challenged that the persons were mulgametis at all. Either the present respondents are mulgametis holding directly from Government or they are not. I think, personally, that this agreement contemplated Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 51 not that it should of itself have any real force, but that it should be followed by legislation. Whatever decision is come to between the parties does not affect the Government. The rights under the agreement are matters for diplomatic determination and not for the Courts to decide. The Government is not a necessary party at all. At no time has the Government sought to intervene in this suit. If the mulgametis are not holding directly from Government then there is no method other than statutory which will put them into the Act. Rashid and Khambatta for the respondents. Whether Government is a necessary party or not may depend upon the meaning of the words “absolute owners." The Thakore was asking for rights against Government because he was seeking a declaration that this territory belonged to his estate. Rashid and Khambatta for the respondents. Whether Government is a necessary party or not may depend upon the meaning of the words “absolute owners." The Thakore was asking for rights against Government because he was seeking a declaration that this territory belonged to his estate. We do not distinguish the facts of this case from those in the Salangpur case (i), but that decision did not go far enough, it did not hold the mulgametis to be in direct relationship with the Government. [SIR GEORGE RANKIN. It is a little hard on the Thakore if he is paying revenue and the mulgametis hold direct from Government. You must bring an appeal of your own before you can ask the Board to revise the decision in the Salangpur case, (25 Bom, L. Repr.726,)] The facts are the same. It is not open to the Thakore to say that the respondents in this case are not entered on the register under the Act. If the words “absolute and independent " ownership have to be construed, they must be decided in the presence of the party who is mostly concerned, that is, the Government—the Secretary of State for India. Further, apart from all other contentions, the High Court has the inherent jurisdiction under s. 151 of the Code of Civil Procedure to join any party they think ought to be before the Court. The respondents are entitled to take advantage of the admission contained in the agreement—looking at it as a document which contains an admission—and cl. 1 (b) amounts to an admission that the respondents are talukdars within the meaning of the Act so far as the jiwai lands are concerned. It is not necessary to be a talukdar of the whole village; a person can be a talukdar of a piece of land. In Salangpur there were two talukdars in the same village; they are marked separately in the settlement register, and are not co-sharers. [SIR GEORGE RANKIN. According to the Act there is one talukdari estate.] Once the respondents are recognized as talukdars under the Act there is nothing to prevent them being assessed by the Government. [LORD THANKERTON. Is not this agreement really a compromise to prevent disputes?] It is an admission of which we are entitled to take advantage, and it would be inequitable to disregard it. [LORD THANKERTON. [LORD THANKERTON. Is not this agreement really a compromise to prevent disputes?] It is an admission of which we are entitled to take advantage, and it would be inequitable to disregard it. [LORD THANKERTON. It is an item of evidence under s. 31 of the Evidence Act, and its value has to be assessed with the other evidence in the case.] Khambatta followed. De Gruyther K.C. replied. March 3. The judgment of their Lordships was delivered by LORD THANKERTON. The appellant in these 18 consolidated appeals is the ruler of Limbdi State, in Kathiawar. The respondents are the mulgametis and landholders in 18 villages of the Khadol Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 52 Barwala Taluka in Dhandhuka, in British India, each of the appeals relating to one of the villages. The appellant, as plaintiff in the suits, in substance asks for a declaration that he, and not the defendants, is entitled to be registered as talukdar under the Gujarat Talukdars Act (Bombay, Act VI. of 1888), as amended by Act II. of 1905. On April 23, 1928, the Subordinate Judge at Ahmedabad granted the appellant in each suit the declaration asked for. On appeal, the High Court of Judicature at Bombay, by an order in each suit dated October 9, 1931, set aside the decrees of the Subordinate Judge, and remanded the suits to allow the appellant an opportunity of joining the Government as a party to the claim as regards an agreement dated August 12, 1922, and his absolute ownership of the villages in question within six months, failing which the suits would be dismissed. The present appeals are taken against these orders, and, in course of the hearing before the Board, the respondents asked for and obtained special leave to cross-appeal, in order to enable the case to be heard and decided on the merits, in the event of their Lordships setting aside the orders of the High Court. The present appeals are taken against these orders, and, in course of the hearing before the Board, the respondents asked for and obtained special leave to cross-appeal, in order to enable the case to be heard and decided on the merits, in the event of their Lordships setting aside the orders of the High Court. By s.2, sub-s.1 (a) of the Gujarat Talukdars Act of 1888, as amended in 1905, " talukdar " is defined as including " a thakur, mevasi, kasbati and naik and a mulgameti who holds land directly from Government.” The respondents claim to be mulgametis who hold lands directly from Government under the last part of the definition, which was included for the first time by the amending Act of 1905. The appellant admits that they are mulgametis, but disputes that they hold lands directly from Government. After the Act of 1905 the mulgametis claimed to be recorded as talukdars in place of the Thakore of Limbdi, and disputes arose, which first came to a head as regards the village Salangpur, which is also one of the villages in Khadol Barwala Taluka, and of which the Thakore held a two-thirds share, in a suit instituted by the Thakore in 1914 in the Court of the District Judge of Ahmedabad (No. 3 of 1914), who decided in favour of the defendants, and dismissed the suit on March 23, 1916. The Thakore appealed, and on October 11, 1922, the High Court reversed this decision, and held that the mulgametis did not hold directly from Government, and that the Thakore was entitled to be recorded as talukdar as regards his share of the village. (1) Meanwhile, a few months prior to the decision of the High Court in the Salangpur suit (25 Bom. L. Repr.726), two material events had occurred. On July 7, 1922, the Talukdari Settlement Officer had issued instruction to the Assistant Survey Settlement Officer to enter the mulgametis as talukdars, except where they had sold the right of ownership to the Thakore before June 1, 1921, and directed that transactions respecting the transfers of rights in chouth were to be regarded as not subject to the Gujarat Talukdars Act. The other event was the making of an agreement between the Thakore and the Government dated August 8 and 12, 1922, which is in the following terms— "With a view to ensure the compilation without dispute of the Settlement Registers in the Limbdi-Barvala villages enumerated in paragraph 3 below of the Dhandhuka Taluka and to obviate all sources of litigation between the parties interested regarding the status of the classes of persons claiming to be Mulgametis the following terms are agreed as between the Thakore Saheb of Limbdi on the one part and Government on the other part— ‘(1) The Thakore Saheb agrees— "(a) That the kathis or the Girasias holding Jiwai lands shall be entered as Mulgametis in the Settlement Registers with reference to such holdings except in those cases where a final decision to the contrary has been passed by a court of law and has been in force up to June I, 1921, in which case Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad the entry shall be made in accordance with that decision; " (b) That the said Mulgametis shall be considered as Talukdars for the purposes of the Gujarat Talukdars Act so far as the Jiwai lands but not the chouth are concerned with effect from June 1, 1921. " (2.) Government on their part agree— "(a) That the Chouth shall not be regarded by Government as forming any part of a Talukdars estate for the purposes of Act VI. " (2.) Government on their part agree— "(a) That the Chouth shall not be regarded by Government as forming any part of a Talukdars estate for the purposes of Act VI. of 1888 and that no action either direct or indirect shall be taken by the Talukdari Settlement Officer or any other officer of Government in connection with the mortgage alienation or other form of transfer of chouth on the ground that it forms part of such Talukdars estate; "(b) That in any subsequent legislation or amendment of the Gujarat Talukdars Act the Chouth will be definitely excluded from the definition of Talukdars estate and from the operation of any clauses forbidding mortgage alienation or other form of transfer; "(c) That the Mulgametis shall be regarded as "Talukdars so far as their Jiwai lands are concerned with effect from June 1, 1921, and that no action either direct or indirect hereafter be taken by the Talukdari Settlement Officer or any Government Officer either under the Gujarat Talukdars Act or the Land Revenue Code or as a manager of a Mulgameti estate with a view to declaring invalid mortgages alienations or other forms of transfer of Jiwai lands made previous to the date aforesaid merely on the ground that such transfers are in contravention of s. 31 of the Gujarat Talukdars Act, 1888 ; "(d) That this agreement shall not be held by Government to affect the present legal rights of the parties inter se otherwise than as is provided by this agreement or to derogate from the present legal rights which either the Thakore Saheb or the Mulgametis possess in the said villages; "(e) That the said Jiwai lands shall be regarded as included within the villages on account of which fixed (Udhad) Jama and Local Fund are now paid to Government. "(3.) The villages to which this agreement applied are as follows;— 1. 1. Khurol. 11. Koondal. 21. Ulao. 2. 2. Khambra. 12. Goonda. 22. Panvee. dr40 3. 3. Godavata. 13. Chunarwa. 23. Kaprialee. 4. 4. Chacharia. 14. Jalila. 24. Wadhela. 5. 5. Dhadodar. 15. Panchtulaore. 25. Wavdee, Nanee. 6. 6. Burwala. 16. Barejra. 26. Bela. 7. 7. Mungulpur. 17. Rojid. 27. Pipal. 8. 8. Rephra. 18. Rampura. 28. Akru. 9. 9. Wuhia. 19. Wajulka. 29. Ranpuri." Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 54 10. Surwal. 20. Soondriana. Jalila. 24. Wadhela. 5. 5. Dhadodar. 15. Panchtulaore. 25. Wavdee, Nanee. 6. 6. Burwala. 16. Barejra. 26. Bela. 7. 7. Mungulpur. 17. Rojid. 27. Pipal. 8. 8. Rephra. 18. Rampura. 28. Akru. 9. 9. Wuhia. 19. Wajulka. 29. Ranpuri." Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 54 10. Surwal. 20. Soondriana. The decision of the High Court, which is now under appeal, is based on the existence of this agreement, and it is therefore necessary to define its exact bearing on the present litigation. As both the learned judges in the High Court stated, the respondents—apart from the assertion that the Government were their agents in making the agreement, of which there is no evidence, and which the respondents no longer maintain— do not maintain that any contractual right is conferred on them by the agreement; they claim that the agreement contains an admission by the appellant of their status as talukdars under the Act, which is admissible as evidence, in terms of ss.17, 18 and 31 of the Indian Evidence Act. Their Lordships are unable to hold that the Government are either a necessary or a proper party to this question, which is independent of the validity or invalidity of the agreement. There can be no question of estoppel, and the respondents did not so maintain. As between the appellant and the respondents, it will be necessary to consider whether the statement in the agreement amounts to the admission claimed, and, if so, to consider its evidential value along with the other evidence, as s. 31 expressly provides that admissions are not conclusive proof of the matters admitted. The learned judges, even on their construction of the agreement as containing a clear admission of the respondents status under the Act, were not entitled to treat it as a bar to the action, but were bound to consider it along with the other evidence on the merits, which they had found it unnecessary to go into. Their Lordships are therefore of opinion that the orders of the High Court should be set aside, and, the respondents having obtained special leave, it remains to deal with the case on the merits. The Subordinate Judge found against the respondents on the evidence, and came to the same conclusion as had the High Court in the Salangpur case (25 Bom. The Subordinate Judge found against the respondents on the evidence, and came to the same conclusion as had the High Court in the Salangpur case (25 Bom. L. Repr.726), and he decided in favour of the appellant; as stated above, the High Court did not deal with the case on the merits. It will be convenient to deal first with the question of the admission alleged to be contained in the agreement of 1922. In their Lordships opinion, the agreement does not contain any such admission, but the language used rather suggests the contrary. The change of language from clause (a), where the Thakore agrees that the kathis or the Girasias holding jiwai lands " shall be entered " as mulgametis in the settlement registers, to clause (b), where he agrees that the mulgametis shall be " considered " as talukdars for the purposes of the Act, would more naturally import that, although the mulgametis were not talukdars within the meaning of the Act, and would not be entered as such, yet, in any question between the Thakore and the Government, the Thakore agreed that the mulgametis should be deemed to be talukdars, as, e.g., alienations by a mulgameti to the Thakore were to be deemed to require the sanction of Government. Other parts of the agreement appear to confirm this view, but, in any event, it is enough to say that the admission sought to be taken must be clear, and that there is no such clear admission in the agreement, which accordingly affords no evidence on the merits. Both parties accept the definition of a mulgameti given by A. B. Marten C.J. in the Salangpur case (25 Bom. L. Repr.726.), namely, " One who is descended from a former ruler and owner of the village and still retains by regrant or otherwise some portion of the lands or interests therein of such former ruler and owner, but not necessarily any of his governing rights.1 The respondents maintained, further, that it follows, as a matter of necessary implication, that a mulgameti holds direct from the Government. The Subordinate Judge has reviewed the evidence in the present case in detail, and the respondents Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 55 were unable to suggest any serious criticism of his summary of the facts. The Subordinate Judge has reviewed the evidence in the present case in detail, and the respondents Law. Rep. 63 Ind. App. 248 ( 1935- 1936) Maharana Shri Dolatsinghji v. Khachar Mansur Rukhad 55 were unable to suggest any serious criticism of his summary of the facts. Their Lordships therefore find it unnecessary to recapitulate the evidence in detail. It appears to be certain that at some time prior to 1802—probably about 1777 or 1781—the mulgametis had surrendered the lordship of the villages to the Thakore in perpetuity in exchange for his protection, and at the same time retained, or were re-granted, the jiwai lands and the chouth, the Thakore paying all tribute or jama in respect of the whole lands in the villages, and recovering none of it from the mulgametis. The chouth is a share, usually one-fourth, of the income of the lands in the village other than the jiwai lands, payable by the Thakore to the mulgametis. There is no evidence of a lease in writing, as stated in the written statement. When the British became the paramount power in this part of the country in 1802, they found the Thakore of Limbdi in possession of the villages of Dhandhuka Taluka, and they recognized his possession, and entered into a settlement with him alone so far as payment of revenue or jama was concerned. This settlement was made by Colonel Walker, on behalf of the Government, with the Thakore in 1807, and was for payment in perpetuity of a fixed lump sum as jama, or revenue, in respect of the Dhandhuka Taluka. The natural inference from this very material fact is that the Thakore alone held direct from the Government, and that the mulgametis did not so hold. There is no evidence of earlier date to support a contrary view, and the subsequent evidence bearing on the matter, which is reviewed by the Subordinate Judge, confirms the inference from the settlement of 1807. Any question as to alteration of the fixed jama was settled between the Government and the Thakore, the attempts by the Government to impose a separate jama on the mulgametis lands was rejected by the Court, and a number of litigations during this subsequent period down to the Salangpur case (25 Bom, L. Repr.726,) between the Thakore and mulgametis in particular villages confirm the view that the villages belonged to the Thakore. Except in the case of the Governments abortive attempts to assess them separately, there is no evidence of direct contact between the Government and the mulgametis. It should be remembered that, although the Thakore is not entitled to be reimbursed by the mulgametis for any share of the fixed jama paid by him to Government, the mulgametis lands are not revenue-free, and the Government would have the right of recourse against them, on any default by the Thakore. It must also be noted that under s. 24, sub-s. 1, the registered talukdar is primarily responsible to the Government for the jama of his village, and, if there are sharers, all the co-sharers shall be jointly and severally responsible therefor. The case of the respondents is that they have no liability to Government. Their Lordships agree with the conclusion of the Subordinate Judge on the evidence that the appellant alone is the person who could be held to be the proprietor of the villages as talukdar, and that the respondents do not hold their lands directly from Government. Their Lordships are therefore of opinion that the cross-appeal on the merits must fail, and that the decision of the Subordinate Judge ought to be restored. Accordingly, their Lordships will humbly advise His Majesty that the appeal should be allowed, and that the orders of the High Court should be set aside and the decrees of the Sub ordinate Judge should be restored, the cross-appeal being dismissed. The appellant, the Thakore Saheb, to have the costs of the appeal and cross-appeal and his costs in the High Court.