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Turning now to the main question, it is clear that article 12 (2) of the Rights, Property and Liabilities Order applies only to property rights or liabilities which were transferred by the Order from a Province which was a party to legal proceedings "with respect to" that property or those rights or liabili- ties. As the suit in question cannot be said to have been instituted with respect to the property transferred, namely, Chakla Roshanabad, the appellant cannot rely upon the trans- fer of that property from the Province of Bengal to the Province of East Bengal as part of the territories of Pakistan under the scheme of partition. Nor was there any transfer of "rights"such as was contemplated under that article, for the only right with respect to which the Prov- ince of Bengal could be said to have been a party to the pending proceeding on the facts of this case was the right to tax the agricultural income of the plaintiff under the provisions of the Bengal Agricultural Income-tax Act, 1944, and that right was not derived by the Province of East Bengal by transfer under the Rights, Property and Liabili- ties Order. As rightly pointed out by the High Court, the right of taxation under the Bengal Act of 1944 passed to the Province of East Bengal as part of the Sovereign Dominion of Pakistan by virtue of the provisions of s. 18(3) of the Indian Independence Act, 1947, which provided that "the law of British India and of the several parts thereof immediate- ly before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof, until other provision is made by the laws of the legislature of the Dominion in question or by any other legislature or other authority having power in that behalf." The question next arises whether there was a transfer of any "liability" by the Order as contemplated in article 12(2). Mr. Sen Gupta relied in this connection on article 10 (2) (a) which provides that "where immediately before the appointed day the Province of Bengal is subject to any such liability (i.e., "any liability in respect of an actionable wrong other than breach of contract") referred to in sub- section (1)that liability shall, where the cause of action arose wholly within the territories which, as from that day, are the territories of the Province of East Bengal, be a liability of that Province." It was contended that the Province of Bengal was, according to the plaintiff's case, liable to be restrained from proceeding with the illegal and unautho- rised assessment on the basis of the notice issued under the Bengal Act of 1944, and that liability, in respect of which the cause of action arose wholly in Dacca (where the as- sessment proceeding had been initiated) within the territo- ries of the Province of East Bengal, became a liability of that Province. The High Court rejected this contention on the ground "that article 10(2) is concerned with the liabil- ity for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the plaintiff under the Bengal Agricultural Income-tax Act through one of its officers the Province of Bengal had committed an actionable wrong'. Assuming that it exceeded its power or acted under an invalid provision of law, the plaintiff may have a declaration to that effect but the Act complained of cannot be said to have been a tortious act. But even assuming that it was, it is to be remembered that the issue of the notice was an exercise of powers conferred by the Act in relation to the sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its offi- cers done in the course of their official duties imposed by a statute, except where the particular act was specifically directed and the Crown profited by performance ....... No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that Province under article 10(2) of the Order."

tionable wrong other than a breach of contract. A reference to any book on tort will show that the words used in sub-s. (1) are commonly used to define a tort. A tort has been defined in Stroud's Judicial Dictionary, Second Edition, page 2072, as a wrong independent of contract, and it is also so described in the Common Law Procedure Act, 1852 (15 & 16 Vict., c. 76); in Halsbury's Laws of England and in many textbooks. The difference between "a wrong independent of contract" and "a wrong other than a breach of contract" is merely verbal and has little signifi- cance. A tort is also often referred to as "an actionable wrong" and the two expressions have been synonymously used by eminent writers including Sir Fredrick Pollock and Pro- fessor Burdick of America, who has designated his well-known book on the law of torts as "a concise treatise on civil liability for actionable wrongs to person and property". Whether the expression can be taken to be a complete defini- tion of a tort may be questioned, because as Addison has pointed out in his book on torts, "to say that a tort is an actionable wrong leaves undefined the term 'actionable wrong'." But there can be no doubt that in legal parlance, the two expressions are assumed to be interchangeable. There is also another matter to be borne in mind in construing s. 10 (2) of the Rights, etc. Order, and that is the well-recognized fact that the primary and most common remedy for a tort is an action for damages. That this is an important feature of a tort is shown by the fact that in many textbooks an action for damages has been made an inte- gral part of the definition of a tort. A few examples will make this clear. A tort is defined by Salmond as "a civil wrong for which the remedy is a common law action for unliq- uidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation." Professor Winfield, who did not see eye to eye with Salmond on many matters connected with the law of torts, gives the following definition of tortious liability :--" Tortious liability arises from the breach of a duty primarily fixed by the law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages." In Underhill's law of torts, the definition runs as follows :--"A tort is an act or omission which is unauthorized by law and independently of contract infringes (i) some absolute right of another, etc., and (ii) gives rise to an action for damages at the suit of the injured party." The learned author after attempting to define a tort in this way goes on to state: "A tort is described in the Common Law Procedure Act, 1852, as a wrong independent of contract. If we use the word 'wrong' as equivalent to violation of a right recognized and enforced by law by means of an action for damages, the definition is sufficiently accurate, but scarcely very lucid;for it gives no clue to what constitutes a wrong or violation of a right recognized and enforced by law. It does, however, emphasize the fact that an essential characteristic of a tort is that the appropriate remedy for it is an action for damages. An act or omission which does not give rise to an action for damages is not a tort." It must be recognized that an injunction may also be an appropriate remedy in a limited number of cases, but it is not a remedy of universal application, and no one has yet suggested that it may be treated as an incident of tort. In the light of the foregoing discussion, it seems to me to be permissible to infer, firstly, that s. 10 of the Rights, etc. Order refers to liability for a tort, and secondly, that what is contemplated there is pecuniary liability such as liability to damages. The word "liabili- ty" has a wider meaning and also a narrower meaning, and the latter would appear to be the appropriate meaning where the word is used in contrast to assets or something which corre- sponds to or is in the nature of assets, and where it is used in plural or is preceded by an indefinite article, e.g., when the expression "a liability" is used. We must remember that the purpose of the Rights, etc. Order was, among other things, to divide or distribute the rights, property and liabilities of the undivided Province of Bengal between the two new Provinces. Therefore, the view that the liabilities referred to in s. 10 are liabilities capable of being ascertained in terms of money and not liabilities in any abstract or academic sense, is in conso- nance with the purpose of the Order as well as the well- known fact that for a tort the most common and appropriate remedy is an action for pecuniary damages. This view is further confirmed by reading s. 13 (2) of the Rights, etc. Order, which runs thus :--

I think it will be appropriate at this stage to say a few words about the remedy by way of an injunction in cases where an actionable wrong is said to have been committed. It cannot be disputed that injunction is one of the remedies in certain cases of torts. As Addison has pointed out, "the origin of' the remedy by way of an injunction is to be found in the inadequacy of the legal remedy by way of damages in many of the more serious wrongs, such as continuing tres- passes and nuisances, where a wrongful act has been done and there was an intention to continue doing it. (See Addison's Law of Torts, 8th Edn. 111). Injunction will also be granted to prevent a threatened injury or wrong, if it can be shown that the threatened act if carried into execution will lead to violation of a right and such will be the inevitable result. As was pointed out in an English case, the interfer- ence of the court in these cases is rounded on its jurisdic- tion to give relief in the shape of preventive justice in order to protect properties and rights from that which, if completed, would give a right of action. These two cases in which an injunction may be issued stand on two different footings, and the liability to an injunction does. not necessarily and always amount to "liability in respect of an actionable wrong". The two liabilities may possibly coin- cide where there is a continuing wrong and the injunction is intended to stop its continuance. But, as I have already stated, where no wrong has been committed, it would require considerable straining of the meaning of familiar legal expressions to say that "liability in respect of an actionable wrong" is identical with "liability to an injunction in respect of an apprehend- ed wrong". "Liability in respect of an actionable wrong"

"Nor was Dr. Sen Gupta right in relying on article 10 (2) for the transfer of liabilities. That Article is con-

cerned with liability for an actionable wrong other than breach of contract and it is impossible to say that by serving a notice on the plaintiff under the Bengal Agricul- tural Income Tax Act through one of its officers, the Prov- ince of Bengal had committed an actionable wrong. Assuming it exceeded its powers or acted under an invalid provision of law, the plaintiff may have a declaration to that effect, but the act complained of cannot be said to have been a tortious act. But even assuming it was, it is to be remembered that the issue of the notice was in exercise of powers conferred by the Act in relation to the Sovereign rights of the Crown and it is elementary that the Crown or the State is not answerable for even negligent or tortious acts of its offi- cers done in the Course of their official duties imposed by statute, except where the particular act was specifically directed and the Crown profited by its performance. There is no such allegation in the plaint in the present case. The plaintiff could not therefore have sued the Province of Bengal for an actionable wrong and the suit actually brought is not a suit of that character. It is a suit for ,certain declarations and an injunction and does not seek to make the Province liable for any actionable wrong in any way. No liability for an actionable wrong is thus involved in the suit and Dr. Sen Gupta cannot establish a right to proceed against the Province of East Bengal on the basis that the liability was transferred to that Province under article 10 (2) of the Order."