Judgement Appeal (No. 54 of 1946) from a judgment and decree of the High Court (October 11, 1944), which affirmed a judgment and decree of the Senior Subordinate Judge, Lyallpur (November 12, 1942). The suit giving rise to this appeal was instituted by the respondents on March 23, 1942, for a declaration that the first respondent was the full owner of the land in dispute, which had originally been granted under the Colony Act, 1893, to one Mokham, whose widow, the second respondent, was the mother of the first respondent. The appellants were collaterals of Mokham. The principal question in the appeal was whether a condition imposed by the Commissioner and upheld by the Financial Commissioner that the widow, who had been granted proprietary rights in the land, should not alienate the land during her tenure " without the concurrence of the " reversioners," the appellants, was in excess of their powers. The trial court and, on appeal, the High Court (Trevor Harries C.J. and Mehr Chand Mahajan J.) held that the condition was ultra vires the executive authority. 1947. June 26. Chinna Durai for the appellants. Umrigar for the respondents. July 24. The judgment of their Lordships was delivered by LORD SIMONDS. This appeal from a judgment and decree of the High Court of Judicature at Lahore, affirming a decree and judgment of the Senior Subordinate Judge at Lyallpur, raises questions of some importance in regard to the powers of the executive authorities under the Colonization of Government Lands Act, 1912. The facts are simple and not in dispute. The lands in question in the case, which are situate in the district of Lyallpur, were at some date not made known to their Lordships granted under the Colony Act, 1893, to one Mokham on what is described as the usual colony tenancy. He died and was succeeded by a son named Jhanda who died without issue and was in turn succeeded by his mother Musammat Hayat Bibi, the widow of Mokham. At some date, which also does not clearly appear, the widow made an oral gift of the land to her son Iman Din. If she had full pro prietary rights, she was competent to do so. Her competence has been challenged by the appellants, all of whom are collaterals of Mokham, under the circumstances which will now be stated. At some date, which also does not clearly appear, the widow made an oral gift of the land to her son Iman Din. If she had full pro prietary rights, she was competent to do so. Her competence has been challenged by the appellants, all of whom are collaterals of Mokham, under the circumstances which will now be stated. On November 27, 1940, the widow being then the tenant of the land in dispute on the terms of the tenancy grant applied in accordance with its conditions in the court of the Collector, Lyallpur, for the acquisition of proprietary rights therein on payment of the zar-i-milkiat or proper purchase money. The Collector, who must be regarded as having acted as a Deputy Commissioner, made the order asked for and the widow paid the purchase money. The appellants, though it has not been made clear to their Lordships what right they had to be present appear to have attended before the Collector and opposed the application, and, being dissatisfied with his order, they appealed to the Commissioner of Multa Division who, on May 29, 1941, varied the order by imposing the condition that the land should not be alienated during the tenure of the widow " without the concurrence of the " reversioners," i.e. the appellants. From this order the respondents in turn appealed to the Financial Commissioner of the Punjab, who, on March 4, 1942, affirmed the Commissioners order and rejected the appeal. He observed that the Deputy Commissioner (i.e. the Collector who acted as Deputy Commissioner) ought not to have given permission to acquire proprietary rights, but he agreed with the Commissioner that, as the proprietary rights had actually been paid for and the transaction was complete, its repudiation at that stage might involve unnecessary complications. He further said that in the grounds of appeal it had been urged that the Commissioner had acted ultra vires in attaching the condition in regard to alienation but that this point had not been argued before him. He thought, however, that as the Government was not under any obligation to grant proprietary rights it was equally competent to grant proprietary rights subject to conditions and under the Crown Lands Grants Act such conditions were binding on the grantee. He thought, however, that as the Government was not under any obligation to grant proprietary rights it was equally competent to grant proprietary rights subject to conditions and under the Crown Lands Grants Act such conditions were binding on the grantee. The widow having, as already stated, made a gift to her son Iman Din in the course of the proceedings, he and she on March 23, 1942, commenced the suit in which this appeal arises in the Court of the Senior Subordinate Judge, Lyallpur, against the present appellants claiming a declaration that he was the full owner of the land in dispute. This claim, as already pointed out, depended for its validity on the plea that she had full proprietary rights, including an unfettered power of alienation. This could only be so if the Commissioner had no power to vary the Deputy Commissioners order by imposing the condition already mentioned. In the suit a number of issues were raised, but in effect only two were argued before their Lordships, namely—(1.) whether the civil court had jurisdiction to try the suit, and (2.) whether the condition against alienation " without the concurrence of " the reversioners " was ultra vires the Commissioner. Their Lordships have no doubt that the civil court has power to entertain a suit in which the question is whether the executive authority has acted ultra vires. They need do no more than refer to the recent exposition of this subject in King-Emperor v. Sibnath Banerji (( 1945) L. R. 72 I. A. 241.). The more difficult question is that which they now proceed to discuss, whether the imposition of the condition in question was ultra vires the Commissioner. But before doing so, they will state the course of the suit in the courts in India. The Subordinate Judge, Lyallpur, first held, and, as their Lordships think, rightly held, that the civil court had jurisdiction to try the suit. At a later stage after hearing evidence, to which it is not necessary to refer, he decided that no appeal lay from the order of the Deputy Commissioner to the Commissioner or the Financial Commissioner, and that the condition imposed by the Commissioner and upheld by the Financial Com- missioner was clearly in excess of their power and ultra vires. At a later stage after hearing evidence, to which it is not necessary to refer, he decided that no appeal lay from the order of the Deputy Commissioner to the Commissioner or the Financial Commissioner, and that the condition imposed by the Commissioner and upheld by the Financial Com- missioner was clearly in excess of their power and ultra vires. He held, therefore, that the widow was competent to dispose of the property and made the declaratory decree as asked. From this decision the present appellants preferred an appeal to the High Court of Judicature at Lahore. It appears from the judgment of the learned Chief Justice of that court that at the hearing of the appeal one point only was taken by counsel for the appellants, namely, that the Subordinate Judge was wrong in holding that no right of appeal existed from the order of the Deputy Commissioner. On this point the Chief Justice thought that the appeal was well-founded, holding that an appeal from an order granting permission to acquire proprietary rights lay to the superior executive officers. But he thought further that, even if such an appeal lay, the question still had to be decided whether such a condition could be imposed on the grant of proprietary rights, and on a consideration of the question came to the conclusion that the condition was not warranted by the Colony Act or any rules made thereunder and must be treated as void. The decision of the Subordinate Judge was therefore affirmed. With this conclusion their Lordships agree. They have not had the advantage of seeing the original grant, but assume that the Financial Commissioner was correct where he said " The " Commissioner has rightly pointed out that the original " grant was made on conditions that made no provision for " the acquisition of proprietary rights.” If so, it would seem that the effect of the Act of 1912 and the Rules issued under it by the Punjab Government under the description "Rules" prescribing the conditions on which tenants holding land in "the Chenab Colony under statements of conditions issued " under Act III of 1893, other than tenants holding on service conditions, may acquire proprietary rights in their holdings " was to give to the executive officer the absolute right to grant, or to refuse to grant, proprietary rights to such atenant. Their Lordships observe that rule V of the cited Rules is in these terms " An appeal shall lie to the Commissioner from an "order of a Deputy Commissioner under these rules refusing" to grant proprietary rights. All proceedings under these rules shall be subject to the control of the Financial Commissioner and the Local Government." The first part of this rule suggests that the decision of the Deputy Commissioner is of a judicial character, and further suggests that on the principle "expressio unius exclusio alterius" no appeal lies from an order of the Deputy Commissioner granting proprietary rights. But this is not easily reconcilable either with the second part of the rule, which submits all proceedings to the control of the Financial Commissioner and the Local Government, or with the general executive character of the proceedings. Their Lordships do not, for the reasons presently appearing, think it necessary to express any final opinion on this point. They observe, however, that a very good reason for giving a right to appeal where a grant has been refused, but saying nothing about the case in which it has not been refused, would be that the executive authority would not itself want to appeal from the grant which its own officer had made, and that it was never contemplated that third parties would be cited and be concerned to appeal from any order. The conclusion cannot be avoided that in this matter the boundary, often difficult to maintain, between executive and judicial function has not been carefully observed and some confusion has resulted. But, however this may be, the substantial question, as the Chief Justice observed, still remains, whether the executive authority could lawfully superimpose on the grant of proprietary rights such a condition as was here imposed. On this question their Lordships concur in the reasoning and conclusion of the Chief Justice. They would not lay too much stress on the fact that the widow had in fact paid a purchase-price based on the acquisition of full proprietary rights whereas the result of the condition was that she got something different and less valuable. They would assume that the executive authority would not hold her to such a bargain but would, if she wished, repay her the money and restore her to her former position. They would assume that the executive authority would not hold her to such a bargain but would, if she wished, repay her the money and restore her to her former position. The real question is whether it was competent for the executive authority under the form of granting proprietary rights to grant something very different and, in fact, to create an estate of a kind unknown to the law. For the result of a grant with such a condition is to deprive the grantee of proprietary rights of an essential right of property, namely, the free power of disposition, and, moreover, to fetter it not by an absolute bar against alienation nor by such a bar except with the consent of a particular person, but by a bar against alienation " except with the concurrence " of the reversioners," a body of persons presumably altering from time to time and perhaps at no time easily ascertainable. Their Lordships do not find any justification for such a condition in the Act or any rules that have been brought to their notice. It was urged on behalf of the appellants that such a condition was justified by s. 3 of the Crown Grants Act (Act XV of l 1895). Their Lordships will assume, without deciding the question, which is at least arguable, that that Act applies to the acquisition of proprietary rights under the Colony Acts. Section 3 is undoubtedly very general in its terms. It provides that "all provisions, restrictions, conditions and" limitations over contained in any such grant or transfer as "aforesaid shall be valid and take effect according to their " tenor, any rule of law, statute or enactment of the Legislature "to the contrary notwithstanding.” But, for the reasons given by the Chief Justice, this does not appear to justify a grant with such a condition imposed. For here the specific subject-matter of the grant is "the proprietary rights." That, and nothing else, may be granted or refused. To purport to grant "proprietary rights" but to withhold an essential proprietary right, namely, the free power of alienation is neither the one thing nor the other. For here the specific subject-matter of the grant is "the proprietary rights." That, and nothing else, may be granted or refused. To purport to grant "proprietary rights" but to withhold an essential proprietary right, namely, the free power of alienation is neither the one thing nor the other. The withholding of such a right may be referred to as a condition, but its effect, as already stated, is to create an estate unknown to the law and to grant not " proprietary rights " but something less which is not susceptible of terms of legal definition. Their Lordships think that the original grant by the Deputy Commissioner, who clearly acted within his competence, should stand, and the so-called condition imposed by the superior executive authority, which was in their view incompetent, should be disregarded. For these reasons they are of opinion that this appeal should be dismissed, and they will humbly advise His Majesty accordingly. The appellants must pay the costs of this appeal.