Appeal No 74 of 1952
Appeal by Special Leave from the Judgment and Decree dated the 10th November 1948 of the High Court of Judicature at Bombay in Appeal from Original Decree No 274 of 1945 arising out of the decree dated the 17th March 1945 of the Court of Revenue Judge Bombay in Suits Nos 7 and 23 of 1943
C K Daphtary Solicitor General for India Porus A Mehta with him for the appellant
M C Setalvad Attorney General for India and Jamshedji Kanga R J Kolah and Rajinder Narain with them for the respondents
February 28
The Judgment of the Court was delivered by VENKATARAMA AYYAR J
The point for decision in this appeal is as to the liability of certain lands situated within the City of Bombay to be assessed to revenue under the Bombay City Land Revenue Act No II of 1876
These lands were originally known as Foras lands and the rights of the occupants of 1313 those lands were settled by Bombay Act No VI of 1851 called the Foras Act
What these rights are is a matter in controversy between the parties and will be presently considered
Between 1864 and 1867 the Government acquired these lands for the purpose of the BB CI Railway under the provisions of Land Acquisition Act No VI of 1857
On 22 11 1938 these lands being no longer required for the purpose of the Railway were sold by the Governor General to Lady Pochkhanawalla and others as joint tenants under a deed Exhibit A
On 28 3 1939 the survivor of the purchasers under Exhibit A conveyed the lands in trust under Exhibit B and the respondents are the trustees appointed under that deed
In April 1942 the appellant acting under the provisions of Bombay Act No II of 1876 issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein and calling for their representation
In their reply the respondents denied the right of the appellant to assess the lands to revenue and followed it up by instituting two suits before the Revenue Judge for establishing their rights
In their plaints they alleged that under the provisions of the Foras Act the maximum assessment leviable on the lands was 9 reas per burga and that the Government had no right to enhance it that the effect of the land acquisition proceedings between 1864 and 1867 was to extinguish the right of the State to levy even this assessment and that further having purchased the properties absolutely from the Governor General under Exhibit A they were entitled to bold them without any liability to pay revenue thereon
They accordingly prayed for a declaration that the Government had no right to levy any assessment on these lands or in the alternative that such assessment should not exceed what was payable under Bombay Act No VI of 1851
The appellant contested the suit
The Revenue Judge held that as a result of the land acquisition proceedings between 1864 and 1867 the lands vested in the Government freed from any liability to pay assessment and that when the Governor General transferred them under 1314 Exhibit A without reserving the right to assess them the purchasers had the right to hold them without any liability to pay revenue
He accordingly granted a declaration that the appellant had no right to levy assessment and that the notices issued by him under Act No II of 1876 were illegal
On appeal by the defendants to the High Court of Bombay it was held by Chagla CJ Bhagwati J concurring that Act No VI of 1851 imposed a specific limit on the right of the Government to levy assessments on the lands in question that further by reason of the land acquisition proceedings the right of the Provincial Government to levy assessment even within the limits prescribed by Act No VI of 1851 was extinguished and that when the lands were transferred by the Central Government to Lady Pochkhanawalla and others they got them as revenue free lands
In the result the appeal was dismissed
This appeal by special leave is directed against this decision
The statutory authority under which the appellant seeks to levy assessment on the lands is section 8 of Bombay Act No 11 of 1876 and it is as follows It shall be the duty of the Collector subject to the orders of Government to fix and to levy the assessment for land revenue
When there is no right on the part of the superior holder in limitation of the right of Government to assess the assessment shall be fixed at the discretion of the Collector subject to the control of Government
When there is a right on the part of the superior bolder in limitation of the right of Government in consequence of a specific limit to assessment having been established and preserved the assessment shall not exceed such specific limit
It was on the footing that the respondents were superior holders  as defined in the Act that the appellant issued notices to them in April 1942
In their reply notices and in the plaints the respondents did not dispute that position but only contended in terms of section 8 that they had a specific right in limitation of the right of the Government to assess the 1315 lands and the entire controversy in the Courts below was whether they had established that right
No contention was raised that they were not superior holders as defined in the Act and that in consequence no assessment could be imposed on the lands under section 8 of the Act
In the argument before us the contention was sought to be raised for the first time by the learned Attorney General that the proceedings taken by the Collector under section 8 were incompetent as that section would apply only to lands held by superior holders that the definition of superior  holier  in section 3 4 as meaning the person having the highest title under the Provincial Government to any land in the City of Bombay would take in only persons who held on a derivative tenure from the Government that persons who acquired lands from the Government under an outright sale could not be described as superior holders  within section 3 4 and that the lands held by the respondents were therefore outside the operation of section 8
On behalf of the appellant the learned Solicitor General objected to this question being allowed to be raised at this stage of the proceedings as that would involve investigation of questions of fact and of law such as whether under the tenures in the City of Bombay owners held the lands as superior holders whether under Indian jurisprudence what was paid by the occupier of land was rent or revenue whether the prerogative right of the Crown to assess lands subsisted in the Presidency Towns of Calcutta Bombay and Madras and several other questions for the decision of which there were not sufficient materials
This objection must be upheld
In view of the fact that the respondents have at all stages claimed immunity from assessment on the basis of section 8 we do not consider that it would be proper to allow them now to change their front and take up a stand wholly inconsistent with what they had taken when that involves an investigation into facts which has not been made
We must therefore proceed on the footing that the respondents are superior holders  as defined 1316 in section 3 4 of Act No 11 of 1876 and that their rights are to be determined in accordance with sec tion 8 of the Act
Construing that section the Privy Council laid down in Goswamini  Shri Kamala Vahooji vs Collector of Bombay1 two propositions that though the language of the section would more appropriately apply when the dispute was as to the quantum of assessment  the right to levy it not being itself controverted it was open to the superior holder under this section to plead and prove that the State had no right to levy any assessment and that the burden was on the person who pleaded a limitation on the right of the State to assess to clearly and unequivocally establish it
It is therefore open to the respondents to plead that the lands are wholly exempt from revenue but the onus of making it jut lies heavily on them
The learned Attorney General has sought to establish a right in the respondents in limitation of the right of the appellant to assess the lands on three grounds 1 the Foras Act No VI of 1851 2 the land acquisition proceedings under Act No VI of 1857 and 3 the sale deed Exhibit A Taking first the Foras Act For a correct appreciation of its provisions it is necessary to refer Co the history of the lands which are dealt with therein
The Island of Bombay once formed part of the Portuguese Domi nions in India
In 1661 when Princess Infant Catherine was married to King Charles 11 of England it was ceded by the King of Portugal to the British Crown as dowry and by a Royal Charter dated 27th March 1668 King Charles 11 granted it to the East India Company
At that time the Island consisted only of the Fort and the town and outside the walls of the town it was scarcely more than rock and marsh which became a group of islands every day on high tide
Vide Shapurji Jivanji vs The Collector of Bombay1
It appears from Warden s Report on the Landed Tenures in Bombay and Le Mesurier s Report on the Foras lands that during the 18th Century the East India Company started 1 1937 LR 64 IA 334
2 Bom
483 488 1317 reclaiming these lands and invited the inhabitants to cultivate them at first without payment of any assessment and subsequently on favourable rates
These payments were called Foras
The meaning of this word is thus explained by Westropp J in his note at page 40 in Naoroji Beramji vs Rogers1  foras  is derived from the Portuguese word fora Latine foras from foris a door signifying outside
It here indicates the rent or revenue derived from outlying lands
The whole island of Bombay fell under that denomination when under Portuguese rule being then a mere outlying dependency of Bassein
Subsequently the term foras was for the most part though perhaps not quite exclusively limited to the new salt batty ground reclaimed from the sea or other waste ground lying outside the Fort Native Town and other the more ancient settled and cultivated grounds in the island or to the quitrent arising from that new salt batty ground and outlying ground
Thus the salt batty lands reclaimed from the sea came to be known as Foras lands by association with the assessments payable thereon called Foras
The nature of the interest which the occupants had in the Foras lands was the subject of considerable debate in the beginning of the 19th Century
In 1804 the Company resumed some of the Foras lands for settling persons displaced in the Town area and that resulted in a suit by one Sheik Abdul Ambly wherein the right of the Company to resume the lands was challenged
The action failed the Court upholding the claim of the Company to resume them but at the same time it observed that its action in dispossessing the occupants would appear and be felt as a grievous hardship if not an open and downright injury
Vide Warden s Report on the Landed Tenures of Bombay pages 60 and 61
Thereafter the Company had the matter further investigated and there were reports on the subject by Warden in 1814 and Le Mesurier in 1843
And finally the Company decided to recognise 1 4 Boni
HCR 1 1318 the rights of the Occupants and that resulted in the enactment of Act VI of 1851
The relevant provisions of the Act may now be noticed
The preamble to the Act states that Whereas the East India Company are legally entitled to the freehold reversion of the several lands heretofore paying a render called foras the outline whereof is delineated in a plan and numbered 1 subject to certain tenancies therein at will or from year to year whereas it is considered expedient as of grace and favour that the rights of the said East India Company in all of the lands included in the said plan should be extinguished save as hereinafter mentioned
It is enacted as follows Section 2 enacts that From and after the said 1st day of July the rights of the said Company in all of the said lands mentioned in the said plan No 1 except those mentioned in the said plan No 2 shall be extinguished in favour of the persons who shall then hold the same respectively as the immediate rent payers to the said Company saving the rents now severally payable in respect of such lands which shall continue payable and recoverable by distress or by any means by which land revenue in Bombay is or shall be recoverable under any Act or Regulation Section 4 provides Nothing herein contained shall exempt such lands from being liable to any further general taxes on land in Bombay  According to the appellant the effect of these provisions was to grant the lands to the occupants on a permanent tenure heritable and alienable but not further to grant them on a permanent assessment
Reliance was also placed on the decision in Shapurji Jivanji vs The Collector of Bombay1 where it was held generally that the Government had the right under section 8 of the Act to enhance the assessments on Foras lands
There is some support for this contention in the provisions of the Act
The preamble 1 Bom
483 488
1319 expressly recites that the occupants were tenants at will or from year to year and that the reversion was with the East India Company
One consequence of that was that the Company had the right to eject the occupants
Now what the Company did under the Act was to give up that right as a matter of grace because as already mentioned it would appear to have invited them to settle on the lands and cultivate them and it did that by extinguishing its reversion as landlord
In other words it agreed to confer on the tenants the status of owners of lands
If that was all the scope of Act No VI of 1851 it could not be doubted that the rights of the State to enhance the assessments would not be affected because ownership of land does not per se carry with it an immunity from enhancement of assessment in exercise of sovereign rights and occupants of Foras lands cannot claim to be in a better position by reason of the Act than owners of lands in ryotwari tracts the assessments on which are liable to periodic revision
But what is against the appellant is that section 2 does not stop with merely extinguishing the reversionary rights of the Company
It goes further and saves expressly the rents now severally payable in respect of such lands rent being used here in the sense of assessment and adds which shall continue to be payable
Now the contention of the respondents is that those words conferred on the Government a right to recover only the assessment which was then payable and that there was thus a limitation on its right to enhance it
It is common ground that the assessment payable on these lands at that time was 9 reas per burga and Exhibit N shows that it was at that rate that the assessment was collected from 1858 until the lands were acquired by the Government in land acquisition proceedings
It is accordingly contended for the respondents that under the Act the Government could not claim anything more than 9 reas per burga as assessment on the lands
It is urged for the appellant that the words now severally payable could not be construed as impos 169 1320 ing a limitation on the right of the Government to enhance the assessment as they occur in a saving clause the scope of which was to reserve the rights of the Company and not to confer on the occupants rights in addition to what the body of the section had granted to them
It is true that the setting in which these words occur is more appropriate for reserving rights in favour of the Company than for declaring any in favour of the occupants
But to adopt the construction contended for by the appellant would be to render the words now severally payable and which shall continue to be payable wholly meaningless
Notwithstanding that the drafting is inartistic the true import of the clause unmistakably is that while on the one hand the right of the Government to recover the assessment is saved it is on the other hand limited to the amount then payable by the occupants
The contention of the respondents that under the Foras Act they acquired a specific right to hold the lands on payment of assessment not exceeding what was then payable must therefore be accepted We have next to decide what effect the proceedings taken by the Government under the Land Acquisition Act No VI of 1857 during the years 1864 to 1867 have on the rights of the parties
Section VIII of the Act is as follows When the Collector or other officer has made an award or directed a reference to arbitration be may take immediate possession of the land which shall thenceforward be vested absolutely in the Government free from all other estates rights titles and interests
The contention of the respondents which has found favour with the Courts below is that under that section the effect of the vesting of the lands in the Government was to extinguish whatever interests were previously held over them that the right of the Government to levy assessment was such an interest and that it was also extinguished
It is argued that when lands are acquired under the Act the valuation that is made is of all the interests subsisting thereon including the 1321 rights of the Crown to assess the lands as well as the interests of the claimants therein that what is paid to the owners is not the full value of the lands but the value of their interests therein deduction being made of the value of the right of the Government to assess from out of the full value and that in effect there was an award of compensation for the right to assess and that therefore that right equally with the rights of the claimants over the lands would be extinguished
One of the awards has been marked as Exhibit P and the respondents rely on the recitals therein that the compensation to the claimants was for their interest in the said lands
The award it must be mentioned directs the Government to pay the claimants the amounts specified therein but contains no provision for payment of any sum as compensation to the Government for its right to assess the lands nor does it even value that right
But the respondents contended that the Government being the authority to pay must be deemed to have paid itself and that in any event if they were entitled to compensation their failure to claim it could not affect the result which was that the right to levy assessment would be extinguished
We are unable to accept this contention
When the Government acquires lands under the provisions of the Land Acquisition Act it must be for a public purpose and with a view to put them to that purpose the Government acquires the sum total of all private interests subsisting in them
If the Government has itself an interest in the land it has only to acquire the other interests outstanding therein so that it might be in a position to pass it on absolutely for public user
In the Matter of the Land Acquisition Act The Government of Bombay vs Esupali Salebhai1 Batchelor J observed In other words Government as it seems to me are not debarred from acquiring and paying for the only outstanding interests merely because the Act which primarily contemplates all interests as held outside Government directs that the entire compen 1 Bom 618 686
1322 sation based upon the market value of the whole of land must be distributed among the claimants
There the Government claimed ownership of the land on which there stood buildings belonging to the claimants and it was held that the Government was bound to acquire and pay only for the superstructure as it was already the owner of the site
Similarly in Deputy Collector Calicut Division vs Aiyavu Pillay1 Wallis J as he then was observed It is in my opinion clear that the Act does not contemplate or provide for the acquisition of any interest which already belongs to Government in land which is being acquired under the Act but only for the acquisition of such interests in the land as do not already belong to the Government
With these observations we are in entire agreement
When Government possesses an interest in land which is the subject of acquisition under the Act that interest is itself outside such acquisition because there can be no question of Government acquiring what is its own
An investigation into the nature and value of that interest will no doubt be necessary for determining the compensation payable for the interest outstanding in the claimants but that would not make it the subject of acquisition
The language of section VIII of Act No VI of 1857 also supports this construction
Under that section the lands vest in the Government free from all other estates rights titles and interests which must clearly mean other than those possessed by the Government
It is on this understanding of the section that the award Exhibit p is framed
The scheme of it is that the interests of the occupants are ascertained and valued and the Government is directed to pay the compensation fixed for them
There is no valuation of the right of the Government to levy assessment on the lands and there is no award of compensation therefor
We have so far assumed with the respondents that the right of the Government to levy assessment is an interest in land within the meaning of section VIII 1 1911 9 I C 341 1323 of Act VI of 1857
But is this assumption wellfounded We think not
In its normal acceptation interest means one or more of those rights which go to make up ownership
It will include for example mortgage lease charge easement and the like
but the right to impose a tax on land is a prerogative right of the Crown paramount to the ownership over the land and outside it
Under the scheme of the Land Acquisition Act what is acquired is only the ownership over the lands or the inferior rights comprised therein
Section 3b of the Land Acquisition Act No I of 1894 defines a person interested as including all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act and a person shall be deemed to be interested in land if he is interested in an easement affecting the land
Section 9 requires that notices should be given to all persons who are interested in the land
Under section 11 the Collector has to value the land and apportion the compensation among the claimants according to their interest in the land
Under section 16 when the Collector make an award he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrance
The word en cumbrance in this section can only mean interests in respect of which a compensation was made under section 11 or could have been claimed
It cannot include the right of the Government to levy assessment on the lands
The Government is not a person interested within the definition in section 3 b and as already stated the Act does not contemplate its interest being valued or compensation being awarded therefor
It is true that there is in Act No VI of 1857 nothing corresponding to section 3b of Act No I of 1984 but an examination of the provisions of Act No VI of 1857 clearly shows that the subject matter of acquisition under that Act was only ownership over the lands or its constituent rights and not the right of the Government to levy assessment
The provisions relating to the issue of notices to persons interested 1324 and the apportionment of compensation among them are substantially the same
Moreover under section VIII the Government is to take the lands free from all other estates rights title and interest and interest must in the context be construed ejusdem generis with estates etc as meaning right over lands of the character of but not amounting to an estate and cannot include the prerogative right to assess the lands
It must accordingly be held that the effect of the land acquisition proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government that the right of the latter to levy assessment was not the subject matter of those proceedings and that if after the award the lands were not assessed to revenue it was because there could be no question of the Government levying assessment on its own lands
Then there remains the question whether the sale deed Exhibit A imposes any limitation on the right of the Crown to assess the lands
The deed conveys the lands to the purchasers absolutely with all rights easements and appurtenances whatsoever to be held for ever
It does not however recite that they are to be held revenue free
But it is argued for the respondents that where there is an absolute sale by the Crown as here that necessarily imports that the land is conveyed revenue free and section 3 of the Crown Grants Act No XV of 1895 and certain observations in Dadoba vs Collector of Bombay1 were relied on as supporting this contention
Section 3 of Act No XV of 1895 is as follows 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
The contention is that as the grant is of a freehold estate without any reservation it must to take effect according to its tenor be construed as granting exemption from assessment to revenue
But that will be extending the bounds of section 3 beyond its con 1 1901 ILR  1325 tents
The object of the Act as declared in the preamble is to remove certain doubts as to the extent and operation of the  and as to the power of the Crown to impose limitations and restrictions upon grants and other transfers of land made by it or under its authority
Section 2 enacts that the provisions of the do not apply to Crown grants
Then follows section 3 with a positive declaration that all provisions restrictions conditions and limitations over shall take effect according to their tenor
Reading the enactment as a whole the scope of section 3 is that it saves provisions restrictions conditions and limitations over which would be bad under the provisions of the  such as conditions in restraint of alienations or enjoyment repugnant to the nature of the estate limitations offending the rule against perpetuities and the like
But no question arises here as to the validity of any provision restriction condition or limitation over contained in Exhibit A on the ground that it is in contravention of any of the provisions of the  and there is accordingly nothing on which section 3 could take effect
It is argued by the learned Attorney General that this limitation on the scope of the Act applies in terms only to section 2 and that section 3 goes much further and is general and unqualified in its operation
The scope of section 3 came up for consideration before the Privy Council in Thakur Jagannath Baksh Singh vs The United Provinces1
After setting out that section Lord Wright observed These general words cannot be read in their apparent generality
The whole Act was intended to settle doubts which had arisen as to the effect of the  and must be read with reference to the general context  
In this view section 3 must also be construed in the light of the preamble and so construed it cannot for the reasons already given have any bearing on 1 1326 the rights of the parties
Moreover that section only enacts that all provisions restrictions conditions and limitations over shall take effect according to their tenor and what is relied on is not any provision restriction condition or limitation over in Exhibit A which according to its tenor entitles the respondents to hold the lands rent free but the absolute character of the interest conveyed under Exhibit A
Therefore section 3 does not in terms apply
The respondents also relied on certain observations in Dadoba vs Collector of Bombay1 as supporting their contention
There the facts were that the Government had granted one parcel of land to the Free Church Mission of Scotland revenue free under a deed dated 1 10 1884
By another deed dated 20 12 1887 they released their right of reversion on two other parcels of land held by the Mission as tenants but subject to the payment of taxes rates charges assessments leviable or chargeable in respect of the said premises or anything for the time being thereon
On 16 1 1888 the Mission sold all the three parcels to one Janardan Gopal and the Secretary of State joined in the conveyance for effectually releasing the reversion of the Government
Before Janardan Gopal purchased the lands there had been correspondence between his solicitors and the Government as to the assessment payable on the lands and the Government had intimated that it would be 9 pies per square yard per annum
Subsequent to the purchase the Collector raised the assessment payable on the lands and the point for decision was whether he could lawfully do so
In deciding that he could not Sir Lawrence Jenkins stated that the purchaser had paid full value for the lands in the belief induced by the Government that the assessment of 9 pies per sq
yard would be permanent and that on the facts the case fell within section 115 of the Evidence Act and that the Government was estopped from enhancing the assessment
He was also prepared to hold that the correspondence between the purchaser and the Government prior to 1 Bom
1327 the sale amounted to a collateral contract not to raise the assessment
Chandavarkar J concurred in the decision and in the course of his judgment observed  when we have regard to the nature of the transaction viz that Government was selling the property out and out as any private proprietor when we look to the whole of the language used  the intention of the parties must be taken to have been that the purchaser was to be liable to pay the amount of 9 pies per square yard per annum then levied as assessment and no more
These observations have been relied on as supporting the contention that when there is an absolute sale by the Government it amounts to an agreement not to levy more assessment than was payable at that time
But the remarks of the learned Judge have reference to the recitals in the deed dated 20 12 1887 and the negotiations between the purchaser and the Government which are referred to in the passage and not to the character of the transfer as an absolute sale and the decision is based on a finding of estoppel or collateral contract deducible from the correspondence between the purchaser and the Government
Neither section 3 of the Crown Grants Act nor the observa tions in Dadoba vs Collector of Bombay1 lend any support to the contention that an absolute sale of lands by the Government ipso facto confers on the purchasers a right to hold the lands free of revenue
The question then is whether on the terms of Exhibit A such a right could be held to have been granted
There was some discussion at the Bar as to the correct rule of construction applicable to the deed Exhibit A
It was argued by the learned Solicitor
General for the appellant that being a Crown grant Exhibit A should be construed in favour of the Crown and against the grantee
On the other hand it was argued by the learned Attorney General that it should make no difference in the construction of the grant whether the grantor was the Crown or a subject as 1 Bom
170 1328 the question in either case was what had been granted and that must be determined on the language of the deed
When closely examined it will be seen that there is no real conflict between the two propositions
The former is in the nature of a rule of substantive law and its scope is that where as the transferee from a subject acquires unless the contrary appears all the rights which the transferor has in the property as enacted in section 8 of the  a grantee from the Crown gets only what is granted by the deed and nothing passes by implication
But when the grant is embodied in a deed the question ultimately reduces itself to a determination of what was granted thereunder
What the Court has to do is to ascertain the intention of the grantor from the words of the document and as the same words cannot be susceptible of two different meanings it makes no differenbe whether they occur in a grant by the Crown or by the subject
If the words used in a grant by a subject would be effective to pass an interest then those words must equally be effective to pass the same interest when they occur in a Crown grant
Dealing with this question Sir John Coleridge observed in Lord vs Sydney1 But it is unnecessary for their Lordships to say more on this point because they are clearly of opinion that upon the true construction of this grant the creek where it bounds the land is ad medium film included within it
In so holding they do not intend to differ from old authorities in respect to Crown grants but upon a question of the meaning of the words the same rules of common sense and justice must apply whether the subject matter of construc tion be a grant from the Crown or from a subject it is always a question of intention to be collected from the language used with reference to the surrounding circumstances section Exhibit A has to be construed in the light of these principles
As already stated there is no recital in the deed that the purchasers are entitled to hold the lands free of assessment
On the other hand it 1 1859   496 497   1000
1329 expressly provides that the properties will be subject to the payment of all cesses taxes rates assessments dues and duties whatsoever now or hereafter to become payable in respect thereof which words would in their natural and ordinary sense cover the present assessment
In Dadoba vs Collector of Bombay1 the Court had to consider a clause similar to the above contained in a deed executed by the Government in favour of the Mission on 20 12 1887
Dis cussing the effect of this clause on the rights of the plaintiff to hold the property permanently on an assessment of 9 pies per sq yard Chandavarkar J observed When that deed says that the property was sold subject to the payment of all taxes rates charges assessments leviable or chargeable  it leaves the question open as to what the taxes etc are which are leviable or chargeable 
Extrinsic evidence of that is admissible for it neither contradicts nor varies the terms of the deed but explains the sense in which the parties understood the words of the deed which taken by themselves are capable of explanation see Bank of New Zealand vs Simpson 2 
In that case the dispute was not as to the liability to pay any assessment but to the quantum of assessment payable and it was a possible view to take that the clause in question was not decisive on that question and that it was left open
But here the question is whether a right was granted to the purchasers to hold the lands free from liability to be assessed and the clause in Exhibit A clearly negatives such a right
Even if we are to regard the question as left open as observed in Dadoba vs Collector of Bombay1 it will not assist the respondents as they have not established aliunde any right to hold the lands free from assessment
It must therefore be held that far from ex empting the lands from liability to be assessed to revenue Exhibit A expressly subjects them to it
It was finally contended that even if the land acquisition proceedings between 1864 and 1867 had not the 1 Bom
2 1330 effect of extinguishing the right of the Government to levy assessment and that even if Exhibit A conferred on the purchasers no right to hold the land revenue free the assessment which the Government was entitled to levy under section 8 of Act No II of 1876 was limited to what was payable under the Foras Act No VI of 1851 and that the appellant had no right to levy assessment at a rate exceeding the same
The argument in support of the contention was that it was an incident of the Foras tenure under which the lands wore held that the occupants were bound to pay only a fixed assessment that the incident was annexed to the lands and was inseparable therefrom that between the dates when the lands were acquired under the Land Acquisition at No VI of 1857 and 22 11 1938 when they were sold under Exhibit A they continued to retain their character as Foras lands that if no assessment was paid on the lands during that period it was because the hand to pay and the hand to receive were the same that when they came to the respondents under Exhibit A they became impressed with the Foras tenure and that in consequence they were liable to be assessed only at the rate payable under Act No VI of 1851
This contention is in our judgment wholly untenable
When the lands were acquired under the Land Acquisition Act No VI of 1857 the entire estate right title and interest subsisting thereon became extinguished and the lands vested in the Government absolutely freed from Foras tenure and when they were sold by the Government under Exhibit A the purchasers obtained them as freehold and not as Foras lands
As the tenure under which the lands were originally held had become extinguished as a result of the land acquisition proceedings it was incapable of coming back to life when the lands were sold under Exhibit A
In support of the contention that the incidents of the Foras tenure continued to attach to the lands in the hands of the respondents the learned Attorney General relied on the following observations of 1331 Das J in Collector of Bombay vs Municipal Corporation of the City of Bombay and others1 The immunity from the liability to pay rent is just as much an integral part or an inseverable incident of the title so acquired as is the obligation to hold the land for the purposes of a market and for no other purpose
But the point for decision there was whether the Municipal Corporation of Bombay could acquire by prescription a right to hold the lands rent free they having entered into possession under a resolution of the Government that no rent would be charged
And the passage quoted above merely laid down that when title to the land was acquired by the Municipal Corporation by prescription one of the rights acquired as part of the prescriptive title was the right to hold the lands revenue free
But the question here is whe ther the right to hold the lands under a fixed assessment survived after the acquisition by the Government under the land acquisition proceedings and that depends on the effect of section VIII of Act VI of 1857
If as observed in the above passage the liability to pay assessment was an integral part or an inseverable incident of the title then surely it was also extinguished along with the title of the occupants under section VIII of Act No VI of 1857
There is another difficulty in the way of accepting the contention of the respondents
The Foras Act was repealed in 1870 by Act No XIV of 1870 long prior to the date of Exhibit A and therefore even if we hold that the Foras tenure revived in the hands of the purchasers under Exhibit A the rights under the Foras Act were no longer available in respect of the lands
Section I of Act No XIV of 1870 saves rights already acquired or accrued and it is argued that the rights now claimed are within the saving clause
But as the lands had all been acquired under Act No VI of 1857 between 1864 and 1867 there were no rights in respect of the lands which could subsist at the date of the repeal and the rights now claimed 1   52 1332 by the respondents are not within the saving clause
In the result it must be held that the right of the appellant to levy assessment under section 8 of Act No II of 1876 is not limited by any right in the respondents
We accordingly allow the appeal set aside the judgments of the Courts below and dismiss both the suits instituted by the respondents with costs throughout
Appeal allowed


Summary:
In the island of Bombay certain lands were held on a tenure known as Foras
Under section 2 of Bombay Act VI of 1851 the occupants were entitled to hold the lands subject only to the payment of revenue then payable
Between 1864 and 1867 the Government of India acquired these lands under the provisions of the Land Acquisition Act VI of 1857
On 22 11 1938 the Governor General sold them to certain persons under whom the present respondents claimed
In April 1942 the appellant acting under the Bombay City Land Revenue Act Bombay Act II of 1876 issued notices to the respondents proposing to levy assessment on the lands at the rates mentioned therein
The respondents thereupon instituted two suits disputing the right of the appellant to assess the lands to revenue
They contended that under the Foras Land Act the occupants had acquired the right to hold the lands on payment of revenue not exceeding what was then payable that the right to levy even that assessment was extinguished when the Government acquired the lands under the Land Acquisition Act that the Governor General having conveyed the lands absolutely under the sale deed dated 22 11 1938 the respondents were entitled to hold them revenue free and that even if revenue was payable it could not exceed what was payable under the Foras Land Act
Held i that under the Foras Land Act VI of 1851 the occupants of Foras lands acquired a specific right to hold them on payment of assessment not exceeding what was then payable
ii that the right of the Government to levy assessment was not the subject matter of the land acquisition proceedings and that the effect of those proceedings was only to extinguish the rights of the occupants in the lands and to vest them absolutely in the Government
iii that where there is an absolute sale by the Crown it does not necessarily import that the land is conveyed revenuefree
The question is one of construction of the grant
The rule is that a grantee from the Crown gets only what is granted by the 168 1312 deed and nothing passes by implication
When the grant is embodied in a deed the question ultimately reduces itself to a determination of what was granted thereunder
Section 3 of the Crown Grants Act XV of 1895 that all provisions restrictions conditions and limitations over shall take effect according to their tenor does not apply when the question is as to the liability to pay revenue
ivthat the Foras tenure became extinguished when the lands were acquired under the Land Acquisition proceedings and it was incapable of coming back to life when the lands were sold on 22 11 1938 and the respondents cannot claim a right to pay assessment only at the rate at which it was payable under the Foras Land Act
Goswammi Shri Kamala Vahooji vs Collector of Bombay 1937 LR 64 IA 334 Shapurji Jivanji vs The Collector of Bombay 1885 ILE  488 Naoroji Beramji vs Rogers  Deputy Collector Calicut Division vs Aiyavu Pillay 1911  Dadoba vs Collector of Bombay 1901 ILR  Thakur Jagannoth Baksh Singh vs The United Provinces 1946 FLJ 88 and Collector of Bombay vs Municipal Corpration of the City of Bombay and others 1952 SCR 43 referred to