John Beaumont, Kt., C.J.

1. This is an appeal from the decision of the District Judge of Dharwar. The plaintiff was a hereditary Desai and held lands which were confirmed by a sanad of 1864, That sanad, which is Exhibit 47, provides:-

It is hereby declared that the said lands and cash allowances shall be continued Hereditarily by the British Government on the following conditions, that is to say, that the said holders and their hairs shall continue faithful subjects of the British Government and shall render the same certain dues.

2. On September 27, 1922, the Commissioner, Southern Division, on behalf of the Government made an order forfeiting the plaintiff's sanad on the ground that he had ceased to be a faithful subject of the British Government. The plaintiff brings this suit, in which, by amendment as the learned Judge explains, he now asks for a declaration that the forfeiture is illegal and ultra vires.

3. The learned Judge dismissed the suit. He held that the plaintiff had ceased to be a faithful subject of the British Government and he based his decision, I think, mainly on two grounds; first, that the plaintiff by means of his activities in connection with the National Congress had proved himself unfaithful to the British Government; and, secondly, that he had done so by advocating a hartal in connection with the visit of the Prince of Wales which occurred in 1921.

4. With regard to the first point, the plaintiff himself gave evidence. He says that from 1895 he had been a Congressman; that he was president of the Congress Committee for the Hangaltaluka from March to August 1921; that the non-co-operation movement began in December 1920 ; that at the Nagpur Session of the National Congress, which was in 1920, the creed of the Congress was changed-instead of Dominion Status by gradual progress, the object of attainment of Swarajya was substituted. Then he says that the Hangal Committee, of which, as I have stated, he was the Chairman, became part of the Congress organisation, and he says 'I subscribed to the creed of the Congress before I accepted the office,' and he says further that the object of the Congress was not to destroy Government but to displace it by another system. The resolutions of the National Congress at the Nagpur Session were put in evidence, Exhibit 53, by the plaintiff. It appears from that that the first resolution passed was in these terms: 'The object of the Indian National Congress is the attainment of Swarajya by the people of India by all legitimate and peaceful means.' Then the Congress appears to me to go on to explain in their subsequent resolutions what they regard as ' legitimate and peaceful means,' and they advocate, among other things, the boycott of schools, boycott of Courts, methods of making India economically independent and self-contained, organising of Congress Committees and so forth. Putting it generally, it seems to me that the policy of the National Congress, as it is to be derived from a consideration of those resolutions, is to make the existing Government impossible by non-violent means. Now, the question is whether the plaintiff had, at the date of the order cancelling his sanad, been unfaithful to the British Government. No doubt the obligation of faithfulness to the British Government does not mean that a person must necessarily always see eye to eye with the Government, He may disapprove of Government policy and endeavour by constitutional means to induce the Government to alter its policy. But it seems to me that if a man becomes an active member of a body the object of which is to bring the British Government in India to an end, whether by violent or non-violent means, and to substitute for it a national Government, that person cannot be said to be faithful to the British Government. It is obvious that if every-body in India adopted the principles of the Congress, Government would be rendered impossible, and how it can be suggested that in such an event the inhabitants of British India, who had rendered the British Government impossible, were faithful subjects of the Government, I do not follow. On that ground I think that this appeal must fail.

5. It is not, therefore, necessary to deal at any length with the other ground discussed by the learned Judge as to whether the plaintiff in advocating a hartal in respect of the visit of the Prince of Wales was guilty of unfaithfulness. I should myself hesitate to say that a person, merely by refusing to take part, orencouraging others to refuse to take part in the welcome of an official guest of Government, however distinguished that guest may be, can be said to be rendering himself unfaithful to Government. However, a different view seems to have prevailed in this Court in the case of Shripad v. Secretary of State : (1926)28BOMLR1175 and in the view I take on the first point it is not necessary really to deal with that second point. Nor is it necessary to deal with the point taken by the Advocate General that the Court has no jurisdiction to deal with the matter. As at present advised, I am disposed to agree with the judgment of the learned Judge on that point.

6. I think, therefore, that the appeal must be dismissed with costs.

Broomfield, J.

7. In my opinion this case must mainly be decided on the admissions in the plaintiff's deposition which are to be found at page 22 of the paper book. He says there:-

I attended a Congress at Nagpur. At the Nagpur Session the creed of the Congress was changed. Instead of Dominion Status by gradual progress, the attainment of Swaraj was adopted. At the same time the non-co-operation programme of Mr. Gandhi was adopted. For the first time District and Taluka Committees became a part of the Congress organisation. The Hangal Committee may have been constituted under the orders of the Congress : but until my election as President I know nothing about it. The object of that Committee was to carry out as far as possible the programme of the Congress, I subscribed to the creed of the Congress before 1 accepted office.

8. The plaintiff was president of the Hangal Taluka Congress Committee as he says from March to August 1921. The Mamlatdar who was one of the defendant's witnesses says that the plaintiff was president until October 1921. Whichever is right, August or October, he ceased to be president of the Taluka Congress Committee, but he says that he subsequently became a member of the Dharwar District Congress Committee and was so at the time of the suit.

9. Now the points in plaintiff's favour which appear from his deposition are mainly these. He says that from the beginning he has been opposed to the boycott of the law Courts and Councils, and that may be the case. It also appears that he has in various ways rendered actual assistance to Government, that is to say as a village Munsiff, as a nominated member and president of the Taluka Local Board, as a member of the District Local Board, as a supervisor of the census and so on. He also says, and that has not been contradicted, that during the War he was helpful to Government in the matter of raising loans and recruits. Nevertheless, in spite of all this, in view of the admissions to which I have referred, there cannot be any doubt that the plaintiff at the material time was an active member of the Congress. He had subscribed to its creed and he had presided over a Committee the object of which was to carry out as far as possible the programme of the Congress. The programme of the Congress at that time undoubtedly included non-co-operation, although the plaintiff has tried to make out that he was himself not a non-co-operator. (Possibly as Mr. Bahadurji, his counsel, has suggested when he said that he was not a non-co-operator, he may have been referring to his co-operation with Government in respect of matters other than politics.) The main article of the Congress constitution as defined at the Nagpur Congress in 1920 was the attainment of Swarajya, that is, Government by the people for the people or self-Government, ' by all legitimate and peaceful means.' Mr. Bahadurji in his interpretation of this rather vague phrase says that ' legitimate 'does not mean, as one would rather have expected 'in accordance with law'; it means, according to him, whatever is necessary or may be deemed necessary, by the Congress provided it is also peaceful, The argument was developed on these lines: It is the duty or it may be the duty of a faithful subject to criticise Government, and if the criticism is not listened to, then it may even be the duty of a faithful subject to resist and oppose Government. As to the method of resistance it seems that there is no restriction, except that it must be non-violent. At one of the meetings at which the plaintiff presided a speech was made by one Divakar, in which the speaker outlined the Congress programme and instructed his audience that it was their duty to disobey an order made under Section 144 of the Criminal Procedure Code, and stated further that) other laws which were to be broken would be communicated by the Congress Committee. He also recommended non-payment of taxes whereby ' the Government machinery would soon be broken.' I understood Mr. Bahadurji to say that those sentiments were entirely consistent with the duty of a faithful subject. In the course of the same speech are to be found these words: 'We are to ' hoist the flag of Swaraj in the coming December. As such an opportunity will not hereafter be had, you should now at least become one and help to turn out the Europeans.' It would hardly be possible to consider that particular sentiment to be consistent with the duty of a faithful subject of the British Government, and Mr. Bahadurji does not say so. His idea is that the object of the Congress at that time was not to change or destroy the Government itself but only to change the system, and even after the change of system according to him the Government might still remain entirely or predominantly British. That is quite inconsistent with what Mr. Divakar said, and also, I should have thought, quite inconsistent with the policy of the Congress so far as it can be gathered from the evidence in the present case. But, however that may be, it seems to me perfectly clear that a subject, who like the plaintiff is in the enjoyment of special privileges on condition of his remaining a faithful subject of the British Government, may fairly be expected to show a higher sort of allegiance than that which Mr. Bahadurji's arguments postulate. In holding that the plaintiff had been guilty of unfaithfulness and in forfeiting his special privileges for that reason, I cannot hold that the authorities did anything which was illegal or ultra vires.

10. I agree, therefore, that the appeal must be dismissed with costs.