JUDGMENT Gurtu, J. - The following questions have been referred to us by the Board of Agricultural income tax Uttar Pradesh, for decision: (1) Whether the payment of Rs. 4,754 in respect of Jagir Land of Raja of Jagmanpur is land revenue within the meaning of S. 2(1)(a) of the Agricultural income tax Act. (b) Whether this payment is any case a cess. (2) Whether the Jagir land held by Raja of Jagmanpur and Rampur is subject to cess assessed and collected by an officer of the Provincial Government within the meaning of S. 2(1)(a) of the said Act. These questions have been referred because a controversy has arisen as to whether the two Rajas are liable to pay agricultural income tax under the Agricultural income tax Act. By virtue of S. 2(1)(a) of the Agricultural income tax Act, agricultural income tax is chargeable in respect of any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue in the United Provinces or is subject to local rate or cess assessed and collected by an officer of the Provincial Government. The question is whether the land of the Raja of Jagmanpur is assessed to land revenue in the U.P., and in the case of both the Rajas whether their land is subject to a local rate or cess assessed and collected by an officer of the Provincial Government. The Board of Agricultural income tax has held that the Rajas are not liable, because neither are assessed to cess collected as aforesaid, nor is the Raja of Jagmanpur assessed to land revenue. In regard to whether the land is assessed to cess as aforesaid, the view of the Board of Agricultural income tax that it is not, rests upon the language of a Resolution passed in 1872 by his Honour the Lieutenant Governor of the North Western Provinces, which was forwarded to the Board of Revenue, North Western Provinces, for information and guidance and also for communication to the Rajas. 2. A copy of that resolution is on the record of the Raja of Rampura's case for the year 1355 Fasli. Paragraphs 5, 6, 7 and 13 are relevant and run as follows: 5. With regard to assessment all these three estates were exempted from village measurement by order of 1st July 1853. 2. A copy of that resolution is on the record of the Raja of Rampura's case for the year 1355 Fasli. Paragraphs 5, 6, 7 and 13 are relevant and run as follows: 5. With regard to assessment all these three estates were exempted from village measurement by order of 1st July 1853. Under these orders the amount of annual income of these estates cannot be ascertained by ordinary papers and the local cesses cannot be levied in the manner as is provided in the law. 6. Looking to the aforesaid circumstances and also taking the dignity and honour obtained by the said Raises into consideration the object of his Honour the Lieut. Governor is to maintain the honours, rights and powers granted to these Raises so long as they may continue to observe their duties and functions honestly and judiciously as is proper to their great honours and powers, granted to them by the Government. With the exception of certain matters relating to judicial powers this duty related to general administration such as village, police "repairs of roads etc. As cesses are realised for every such expenses this conclusion is therefore drawn that it is out of justice to realise cesses also from these Jagirs and also to insist on them to appoint officials for the discharge and performance of this arrangement. 7. No cess shall however be realised from these Jagirs but the Commissioners will see that the following conditions dependent on this remission be fully carried into execution. They are that the works of those districts for which cesses are utilised should be sufficient in Jagir estates in the like manner as they are found in other districts. (13) Be it known that this resolution has been recorded simply with a view to decide whether these Jagirs are exempted or not from payment of cesses at the rate of Rs. 10 per cent and if they are exempted what points, are essential for them to be observed in lieu thereof and also that these Rajas may get the rules for suppression of infanticide in force in their estates. But this resolution is not applicable to the (status) and powers of these Jagirdars and it will not affect them. 3. The learned Commissioner of Agricultural Income Tax had construed the above paragraphs as imposing a cess on the Jagirdars out exempting them from payment in cash. But this resolution is not applicable to the (status) and powers of these Jagirdars and it will not affect them. 3. The learned Commissioner of Agricultural Income Tax had construed the above paragraphs as imposing a cess on the Jagirdars out exempting them from payment in cash. He had held that maintenance of roads, schools; etc. by the Jagirdars amounted to payment of cesses in kind. The Board of Agricultural income tax found itself unable to agree with that view and pointed out that what S. 2(1)(a) requires is that the land should have been actually assessed to cess and the cess should also have been collected by an officer of the Provincial Government. The Board was of the view that what the resolution quoted above showed was that the Jagirdars would have been liable to be assessed to cess if they had not undertaken to maintain roads, schools, etc & that liability for assessment must be distinguished from actual assessment. The Board further pointed out-that the mere liability to be assessed to cess could not mean that cess had been assessed within the meaning of S, 2(1)(a). It was also pointed out by the Board that the word "collected" was of importance and that it was not even enough that the land should be assessed to cess. But what was further required was that cess should also have been collected and further that collection should have been by an officer of the State of Uttar Pradesh. We are in entire agreement with the view of the Board of Agricultural Income Tax. It is evident that the resolution has exempted the Rajas of Jagmanpur and Rampura from cess. The reason for that exemption no doubt was that they were already spending money on those very purposes which would be the beneficiaries of cess if assessed. But there can be no doubt about it that there was a clear exemption from cess granted by the resolution, and that the Commissioner was directed to see that the benefits which the Rajas were already conferring at their instance & expense, because of which cess had been remitted, were continued. There is nothing to suggest that by this resolution a service cess, it one may so call it, was substituted for a money cess. There is nothing to suggest that by this resolution a service cess, it one may so call it, was substituted for a money cess. We are therefore in full agreement on this point with the Board of Agricultural income tax and we answer the Second Question in the negative. 4. The first question presents greater difficulty. The Raja of Jagmanpur pays annually a sum of Rs. 4,754 as quit rent which is now known as Nazrana to the Government and the question is. whether this payment of quit rent is the payment of assessed land revenue or constitutes payment of a local rate of cess assessed and collected. 5. Information about Jagmanpur can be gathered from the Gazette of Jaluan. It appears from page 72 thereof that the chiefs of Jagmanpur and Rampura & Gopalpura are considered to be hereditary feoff holders. One Raja Rup Sah, of Jagmanpur, was a Sengar Rajput and head of that clan. The title of Raja dates from the year 1100 A.D. It was recognised by the Peshwa in 171 and has always been recognised by the British Government. In 1787 Raja Ratan Sah obtained a confirmation of his grant from the Peshwa of Poona, and his descendants continued in possession till the cession of Jaluan in 1844, when Raja Mahipat Singh received a Sanad for the estate in perpetuity on payment of an annual quit rent of Rs. 4,764. Raja Mahipat Singh died in 1854 and was succeeded by his infant son Raja Rup Sah, For some time the estate was under the management of the Court of Wards and the Raja was educated at the Wards Institution at Banaras. In 1877 he was appointed an honorary Magistrate within the limits of his Jagir and at the same time he was given civil powers in cases up to Rs. 100., though the latter were withdrawn when Jalaun became a regulation district in 1891. The Raja's retainers are exempt from certain provisions of the Arms Act. 6. The Sanad whereby the quit rent was fixed is dated the 21st November, 1852, and its copy is on the file of the assessment for the year 1357 Fasli along with a translation. The Second paragraph of that Sanad is important and it runs as follows: Whereas a report about this Jagir along with other Ubaridars etc. 6. The Sanad whereby the quit rent was fixed is dated the 21st November, 1852, and its copy is on the file of the assessment for the year 1357 Fasli along with a translation. The Second paragraph of that Sanad is important and it runs as follows: Whereas a report about this Jagir along with other Ubaridars etc. of Pargana Kanar has been forwarded to the higher authorities and therefore with the sanction of Government conveyed in a letter from the Secretary to Government No. 225 dated 8th October, 1852, the village named below, on payment of Ubari amounting to Rs. 4,754 Kaldar coin, have been restored as usual from generation to generation, on the condition that the Ubari instalment fixed by Government should be paid at the fixed time, otherwise one or two villages out of Ubari villages to the extent of Ubari amount shall be resumed by Government. This Sanad of all the villages, after fixing the aforesaid amount of Ubari is therefore granted. 7. The Raja has been paying this amount described as Ubari or quit rent and now called Nazrana to Government. In dealing with the nature of Ubari the learned Commissioner of Agricultural Income Tax observed as follows: Ubari is certainly a sort of tax in law Lexicon. Tenure has been given the meaning as distinguished from private rights in the village and the dues are said to amount to payment of less revenue than is ordinary payable. It has also been said to mean as quit rent. Whatever meaning may be assigned to the word 'Ubari' it certainly amounts to payment of dues in lieu of conferment of the Jagir. To me it looks in the form of land revenue. 8. The view of the Board of Agricultural Income Tax is that the expression "land revenue" used in S. 2(1)(a) of the Agricultural Income Tax Act could only be interpreted as meaning land revenue assessed in accordance with the procedure prescribed in the UP LR Act. The Board opines that there can be no assessment of land revenue without the measurement of land and us valuation according to the class of soil, etc. It was therefore unable to agree with the learned Commissioner that the payment of Rs. 4,754 is land revenue within the meaning of S.. 2(1)(a). 9. The Board opines that there can be no assessment of land revenue without the measurement of land and us valuation according to the class of soil, etc. It was therefore unable to agree with the learned Commissioner that the payment of Rs. 4,754 is land revenue within the meaning of S.. 2(1)(a). 9. It appears from the United Provinces Gazette dated 16th March, 1940, Part VIII, at page 796, that a rent rate report of Jalaun Jagir inducing Jagmanpur was prepared for the first time in that year. The report states: The estates are revenue free, but the Raja of Jagmanpur pays an UBARI of Rs. 4,754. Besides the Jagir villages dealt with in this report the Raja of Jagmanpur holds four whole Zamindari villages and shares in two paying Rs. 6,223, as land revenue in district Jalaun, 10 whole villages and share in one paying land revenue Rs. 9,471 in Etawah and shares in four villages paying Rs. 2,449 in Cawnpore. So far as this report is concerned, the Jagir estate was considered to be a revenue free but liable to Ubari. 10. It is not suggested before us that the land in question has seen subjected to any settlement of revenue under the Land Revenue Act, l90l, or any predecessor Act or Regulation concerned with the assessment of land revenue. 11. Baden Powell in his Land Systems of British India, 1892 Edn., Vol. II, has at p. 154, S. III, stated that: In the districts more or less under the influence of the Marathas, we find instances of their plan of levying a quite rent or charge on the grantee. 12. According to Baden Powell in the Jhansi division, there is what is called the Ubari tenure, and grants spoken of as 'Haq That kura' or 'batotadar'; and that this arises out of the old Rajput organisation as affected by Maratha revenue arrangements. He then observes at page 156 as follows: Just as we have seen part of the country (of Bundelkhand) allotted cut by (so-called 'republican') Rajpur clans, so Lalitpur became the seat of a number of Thakurs' or chiefs' feudal estates or allotments. When Sindhia took the country, he kept a portion for himself (as the Raja or head chief), and this led to fighting and disputes about the Thakurs rights. When Sindhia took the country, he kept a portion for himself (as the Raja or head chief), and this led to fighting and disputes about the Thakurs rights. A last an arrangement was made by which they got lands to yield them 'batota' or share of the revenue. When the lands properly available were not enough to supply the full batota, the chief got ands all about the district to make up the area, called 'Chir'. Where the lands held were more than enough to cover the batota the surplus was subject to the 'Ubari' or quit-rent assessment, so that now, the Thakurs' estates are 'Jagir', entirely revenue-free, or 'Ubari' (subject to payment of a quit-rent) as the case may be. 13. Then at p. 447 of his book he (Baden Powell) deals with Ubari or Mukta Tenures again and observes as follows: Large grants in the Sagar-Narbada territories of this class (but paying a quit-rent) are called 'ubari', and, in the Nagpur territory, 'mukta': where the grant was quite revenue-free, it is called 'Mokasa'. The grant was (variously) in perpetuity or for life or lives. The policy of the British Govt. has been to recognise the grantees as proprietors, and to continue the grant, but, as far as possible, to minimise the loss of revenue by imposing a partial assessment. For this purpose, the old Maratha 'Kamil Jama' was ascertained, and the quit-rent assessed was a certain proportion (1/2 or 3/4 or 5/6) of this. Should the full revenue valuation be revised, it follows that the quit-rent also will be liable to enhancement. It was found in this tenure, (as usual where there is a grantee and inferior holders under him) that the 'Ubaridar' might have lived away from the estate and merely drawn the cash-rent: or he might have taken the management so far as to grant leases to middlemen and make his own conditions or he might have directly managed the estate, improved it, and spent money on it. It was finally decided that all rights should be examined into, and such rights as existed, be secured by record. The larger 'ubari' estates were, in the matter of right to the adjoining waste, treated like Zamindaris; they were allowed 'manorial Perquisites' 'whatever that may include' in forests and wastes belonging to the estate. It was finally decided that all rights should be examined into, and such rights as existed, be secured by record. The larger 'ubari' estates were, in the matter of right to the adjoining waste, treated like Zamindaris; they were allowed 'manorial Perquisites' 'whatever that may include' in forests and wastes belonging to the estate. But the smaller ubari tenures were treated in this respect as ordinary village or Malguzari estates. 14. The nature of an Ubari tenure came to be discussed in Abaul Haq v. Meghraj AIR 1924 Nag. 133 as follows, at page 134: The village is held on the Ubari Tenure, which is defined in the C. 1. Settlement Code, (introduction pp. v. and (vi). The paragraph in question goes against the Appellants' contention that the village is impartible, for it begins by saying that the third class of proprietary villages- those originally held by revenue grantees (Muafidars)-call for but little notice, as the wholesale grant of proprietary rights left their holders in no higher position than that of ordinary Malguzars, Apart From The Revenue Concession Enjoyed Bythem. The least privileged grants are those known as "Muktas" which are held on payment of quit-rent, fixed in perpetuity but of substantial amount, exceeding in some cases the revenue now ordinarily assessable. The concession in such cases is exemption from enhancement. When it amounts to a release or assignment of revenue the tenure is known as 'Ubari' in the north and as "Mokasa" in the south. Generally speaking, the grants of revenue are permanent and inalienable. But conferral of the Malguzari rights made the proprietorship of the assignee in the village lands-apart from their revenue-transferable at his will, etc. This passage makes it quite clear, in my opinion, that the Ubari tenure has nothing to do with proprietorship in the lands, but is merely the right to hold the village on payment of a quit rent to Government, that is, on payment of less revenue that would ordinarily be payable. In this respect the tenure resembles that of Inamdars in the Bombay Presidency who are regarded as alienees of the Royal share of the revenue. Whether they are also proprietors of the soil is quite a different question. Ordinarily in Bombay, where a different system of land tenure prevails, they are presumed not to be so. In this respect the tenure resembles that of Inamdars in the Bombay Presidency who are regarded as alienees of the Royal share of the revenue. Whether they are also proprietors of the soil is quite a different question. Ordinarily in Bombay, where a different system of land tenure prevails, they are presumed not to be so. In the Central Provinces the contrary presumption would prevail, but the essential point is that the payment of a reduced revenue to Government does not help at all in deciding whether the village is impartible. The Defendants may be given a remission of revenue because they are Kazis, but whether they were granted the soil of the village for the same reason, is a question depending on the terms of the original grant. This distinction is brought out in Ex. 1 D-3, the Order of the Chief Commissioner in an appeal regarding the partition of this village. Mr. (afterwards Sir) Denzil Ibbetson pointed out that "the property in the village and the Ubari right are two very different rights, Government are not concerned with the right to partition. It certainly is extremely probable that the original grant of the proprietary right was made together with and on the same terms as the assignment of revenue. 15. It would therefore appear that Ubari right and property in the village are two different things, when it amounts to a release or assignment of revenue the tenure is known as Ubari. It is not a case of fixation of land revenue to be paid by the Ubaridar; the entire Royal share of the revenue is released to the Ubaridar or the release is subject to the return of a portion of it. It will be observed that the Sanad restores the village to the guarantees on payment of Rs. 4,754. This means except that sum the entire Royal share of the revenue in the villages passed to the Ubaridar. 16. It will therefore appear that Ubari is, strictly speaking, not revenue derived from land, nor can it be said that the lands in question are assessed to land revenue. 17. The first part of the question therefore must be answered in the negative. 18. In regard to the second part of the first question that this quit rent was cess or a local rate we are of the view that this contention cannot be sustained. 17. The first part of the question therefore must be answered in the negative. 18. In regard to the second part of the first question that this quit rent was cess or a local rate we are of the view that this contention cannot be sustained. Local rates in the Uttar Pradesh are levied under the U.P. Local Rates Act, 1914. This rate is not imposed under that Act, nor could it be shown that it was imposed under any other Act empowering the levy of local rates. Nor in point of fact is this quit rent anything in the nature of a cess. This resolution of 1872 referred to previously itself shows that the question whether cess was to be levied on this land which even then was paying the quit rent came up for consideration and it was resolved that cess would not be levied because the Raja was already giving to his estate the benefit of public works. It is no where evident that in 1855 when this quit rent was fixed with the idea that it would be utilised in giving service of any nature within the area of the Jagir. 19. In our view therefore the conclusion of the Board of Agricultural income tax is correct and we uphold its views and answer the questions propounded in the negative. The Assessee will have his costs which we assess at Rs. 400 in each case.