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Judgment
P.N. Mookerjee, J.—These two regular appeals arise out of a single suit for declaration of the Plaintiff-Respondent''s title to certain G.P. notes of the face value of Rs. 1,05,000 and the accrued interest thereon. In the suit there was a triangular contest between the Plaintiff and the two sets of contesting Defendants. In this contest the Plaintiff has succeeded before the trial Court and hence the present two appeals by the unsuccessful Defendants.
The Plaintiff who styles himself as the Nawab Bahadur of Murshidabad claims to be the sole heir of the last Nawab Nazim of Bengal, Bihar and Orissa and sets up his title to the disputed G.P. notes and interest on two counts, namely, (i) as the sole heir to the last Nawab Nazim, to whose estate, according to this contention, the said notes reverted, upon the death of the recorded holders thereof, namely, the seven daughters of the said Nawab Nazim, in whose names they were first acquired out of the Nawab Nazim''s funds, but who had merely life-estates or life interests therein, and (ii) as the sole heir to the late Nawab Nazim and thus the head of the Nizamat, in which capacity-so runs this alternative contention-the Plaintiff Nawab is entitled, by reason of a Nizamat family custom or usage, to the notes in question and the accumulated interest thereof "in supersession of "and in priority over" the claims of the heirs of the said seven daughters, even assuming that these ladies had absolute beneficial interest in the said notes, etc., which were, according to the common case of the Plaintiff under both the above contentions, held by the Government, Defendants Nos. 1 and 2, merely as trustees.
The suit was instituted in September, 1943 and therein the Plaintiff Nawab impleaded as Defendants the Province of Bengal, the Governor-General of India and the heirs of the seven daughters of the late Nawab Nazim to whom reference has been made above. Of these Defendants all except the heirs of the daughter Wahidunnessa alias Sahebzadi Begum appeared in the suit and filed written statements which were, broadly speaking, of three different types. The Governor-General and the Provincial Government, who were the first two Defendants in the suit and who will be referred to at places in this judgment as the Government Defendants, denied the Plaintiff''s allegation that they were trustees in respect of the suit properties, claimed the same as Government properties and also pleaded inter alia the bar of limitation to all adverse claims against them in respect of the said properties. Defendants Nos. 3 and 4 and 7 series and (sic) series who represented the several branches of four out of the seven daughters of the late Nawab Nazim, already referred to above, disputed the Plaintiff Nawab''s claim and set up inter alia title in themselves and in the heirs of the remaining three of the Nawab Nazim''s said seven daughters, their case being that the said seven ladies were full and absolute beneficial owners of the suit notes, etc. and that the same were held by the first two or the Government Defendants as trustees on their (the ladies) behalf during their respective lives and for their heirs thereafter. These Defendants claimed that, upon the death of the said seven ladies, the suit notes and the accumulated interest descended by right of inheritance to their heirs including the said answering Defendants and they expressly averred that the Plaintiff''s case that the said ladies had merely life-interests in the suit properties or that there was a custom or usage in the Nizamat family entitling him (the Plaintiff Nawab) to the same as the head of the Nizamat over the heads of the ladies'' heirs was utterly unfounded. The other sets of appearing Defendants, namely, Defendants Nos. 5 and 8 series, who were the heirs of Razia alias Peari Begum, and Nuarunnessa alias China Begum, two of the late Nawab Nazim''s said seven daughters, admitted inter alia the Plaintiff''s claim to the suit properties and substantially supported the plaint allegations.
There thus arose a triangular contest, the Plaintiff''s claim of title to the suit properties being resisted by the two sets of contesting Defendants, namely, Defendants Nos. 1 and 2, or, the Government Defendants, and Defendants Nos. 3 and 4 and 7 series and 9 series who all fought inter se on the question of title, the first or the former set, viz., the Government Defendants, claiming the suit notes etc., as stated before, as Government properties and the other set, representing the several branches of four of the Nawab Nazim''s seven daughters, who were the recorded holders of the same, claiming title in themselves and in the other heirs of the said seven ladies. In this contest, as already stated, the Plaintiff succeeded before the trial Court and hence the present appeals by the two sets of unsuccessful contesting Defendants.
It is necessary now to narrate in some fuller detail the cases of the respective parties, and it will be convenient also to set out in the sequence the relevant findings of the learned Subordinate Judge and the points, urged by the two sets of Appellants in support of their respective appeals.
Upon certain simple allegations the plaint sets out two alternative cases in support of the Plaintiff Nawab''s claim of title to the disputed properties, viz., the suit notes and the accumulated interest. The primary allegation is that, from out of the Nizamat Deposit Fund, held by the Government or the first two Defendants for the benefit of the last Nawab Nazim of Bengal, Bihar and Orissa and "his heirs and the members of his "family", a sum of Rs. 20,000 was "settled for life" upon each of his seven daughters, in the plaint, out of which sum again an amount of Rs. 5,000 was paid to each of the said seven daughters at their respective marriages and the balance, namely, Rs. 15,000 in the case of each of the said seven ladies, was invested in their names in G.P. notes which were held by the Government or the Government Defendants as trustees for them during their respective lives and thereafter for the benefit of the late Nawab Nazim''s heir and the Plaintiff as such heir was entitled to the said G.P. Notes and the accumulated interest thereon, the respective funds, Rs. 15,000 in each case, invested as aforesaid, having reverted to the late Nawab Nazim''s estate upon the death of each of his said seven daughters. The alternative case pleaded anticipated a possible claim by the said ladies'' heirs that the investments made were not merely for their respective lives but for their absolute benefit so that no question of any reversion or reverter could arise and the suit properties descended, upon the said ladies'' death, to their respective natural heirs in absolute right, and the plaint proceeded to answer in advance this possible adverse claim or contention by asserting that, even to the absolute properties of the late Nawab Nazim''s daughters, the Plaintiff Nawab, as the head of the Nizamat family, was entitled "in supersession of and priority over the claims" of the said daughters'' heirs "under customs and usages obtaining in the "Nizamat family".
The Plaintiff''s claim was opposed by the two sets of contesting Defendants and, to his two alternative cases, made in the plaint, the Government Defendants Nos. 1 and 2 pleaded inter alia by way of rejoinder that the Nizamat Deposit Fund was a part of the Government revenue and Government money, they said fund was not the property of the Nawab Nazim nor was it held by the Government for the said Nawab''s benefit or for the benefit of his heirs or the members of his family. They also denied the story of a trust, as set up in the plaint, and took further defences under the law of limitation and the proviso to Section 42 of the Specific Relief Act. It was, however, admitted by them and here they supported the Plaintiff that the seven daughters of the late Nawab Nazim, named in the plaint, had mere life-interests in the disputed Government securities so that, upon their death, their heirs acquired no rights whatsoever in the said securities or their usufruct.
The daughters'' heirs who resisted the Plaintiff''s claim denied inter alia the plaint allegation that the seven ladies had mere life-interests in the disputed securities and contested further the Plaintiff''s story of Nizamat family customs and usages upon which the latter''s alternative case was sought to be founded in the plaint. The maintainability of the suit was also questioned by them in their written statements though they did not in terms refer to Section 42 of the Specific Relief Act. They, however, agreed with the Plaintiff that the Government or the Government Defendants were mere trustees in respect of the suit securities although the trust they pleaded was not the same as set up in the plaint. As a matter of fact, these contesting Defendants differed from both the Plaintiff and the Government Defendants in that they asserted a title to the suit properties upon the footing that the seven daughters of the late Nawab Nazim, in whose names the disputed securities stood, and in whose names the disputed investments had been originally made, were absolute beneficial owners of the same, the Government merely holding them as trustees for them, that is, for the said seven ladies during their respective lives and for their respective heirs thereafter, so that upon the ladies'' death their heirs became entitled to the suit properties.
The controversies between the parties, as above indicated, thus inevitably led to a triangular contest and the contentions which were urged by them in support of their respective cases before the learned Subordinate Judge-and in this Court too-were manifold and gave rise to diverse complex problems. Indeed, the arguments embraced a wide field and, at times, not without justification, touched upon wider aspects of the points at issue than were ultimately found necessary for the purpose of this case.
The learned Subordinate Judge found inter alia-
(a) that the suit was maintainable and not barred u/s 42 of the Specific Relief Act;
(b) that there was a trust in respect of the suit properties and the Government or the Government Defendants were trustees in respect thereof and the suit was not barred by limitation;
(c) that the Nizamat Deposit Fund was not public money or Government money but was money held by the Government as trustees for the late Nawab Nazim and his heirs;
(d) that each of the seven daughters of the late Nawab Nazim got absolutely-the gift or grant in each case, though, prima facie, that is, purporting to be, and being also, as a mere matter of construction, only for the donee''s or the grantee''s life, was in law absolute-the sum of Rs. 20,000 out of the said fund and the investments in the G.P. notes in suit were held by the Government as trustees for the said daughters so that, in the absence of the Nizamat family customs and usages, pleaded in the plaint, they would enure to the benefit of the said daughters'' natural heirs; and
(e) that the said customs and usages had been proved, thus entitling the Plaintiff Nawab to the suit properties in preference to the said natural heirs.
The learned Subordinate Judge also expressed the view that, if the gifts or grants to the late Nawab Nazim''s seven daughters were for life only, upon the death of each of them the money invested on her account would "go back to the fund from which "it came", that is, to the Nizamat Deposit Fund, and it would "return and be treated as a part of the parent fund in which case "also the Plaintiff as the head of the Nizamat family and as the "legal heir to the last Nawab Nazim of Bengal" would be entitled to it.
In the contesting heirs appeal (F.A. No. 41 of 1946) the Appellants have concentrated their attack on the ultimate finding, set out in (e) above, of the learned Subordinate Judge but an behalf of the Government Appellants in their other appeal (F.A. No. 42 of 1946) each and everyone of the learned Subordinate Judge''s findings (including his finding in the alternative), enumerated above, has been challenged and severely criticised. The Respondent Nawab in either appeal has unhesitatingly supported the first three and the last of the above primary findings of the learned Subordinate Judge and also the view expressed by him in the alternative-and, with regard to the fourth, Mr. Gupta, appearing for him, has contended that the same was not correct and he has submitted-not without force, as we shall presently see, that the learned Subordinate Judge ought to have held that the grants to the seven ladies of Its. 20,000 each were not wholly absolute in character but were only for their respective lives so far at least as their Rs. 15,000 portions were concerned, and, although subsequently the sum of Rs. 5,000 out of the said sum of Rs. 20,000 in each case was given to the original grantee or spent for her benefit on the occasion of her marriage, the balance, namely, Rs. 15,000 in each case, which was invested in G.P. Notes, continued to enure to the benefit of the respective grantee only during her lifetime, or in other words, that the said grantee had merely a life-interest in the same or in the said investment. This submission of Mr. Gupta as to the nature of the gift or the grant to the Nawab Nazim''s daughters has been supported by the Government Defendants but has been very stoutly opposed by the other contesting Defendants and in the heirs'' appeal (F. A. No. 41 of 1946) we shall presently examine the strength or merits of this submission.
F.A. No. 41 of 1946.
We now turn first to the earlier appeal, F.A. No. 41 of 1946, where, as already stated, the ladies'' heirs who contested the suit in the trial Court are the Appellants. From what we have said above, the contest between the parties in this appeal resolves itself into two broad questions, namely, (1) whether, in or in respect of the G.P. notes in suit, the late Nawab Nazim''s seven daughters had absolute interests or merely the right to enjoy the interest or usufruct thereof during their respective lives; and (2) whether the so-called overriding customs and usages, pleaded in the plaint, have been proved. The first of the above two questions demands careful consideration of the true construction of the document ex. B4 which together with exs. B2, B6 and B7 constitute the relevant grant and where, for our present purpose, all the relevant terms of the different gifts or grants, made to the Nawab Nazim''s daughters, are to be found, and a proper determination of the true nature of the said gifts and of the legal effect of the same; the second question requires a just assessment of the legal values of the instances of succession to females'' properties, proved or sought to be proved by the contending parties in support of their respective cases, regarding the disputed usages and customs. On either of these two questions we are taking a view different from the learned Subordinate Judge''s but, that notwithstanding, his final conclusion on this part of the case remains-as was also sufficiently indicated by him in his alternative finding-wholly unshaken and his decision of the issue of title in the Plaintiffs favour definitely survives.
The Appellants argue that ex. B4, on its true construction, represents an absolute grant or gift to the seven ladies and their other two sisters, therein referred to as "the daughters of the "Nawab Nazim", Rs. 20,000 each, the grant being contained in the opening paragraph, the succeeding para. 2 merely indicating the grantor''s desire as to the mode or manner of enjoyment of the grant by the grantee and so not affecting its absolute character, or. at the most, imposing a condition or restriction upon the same, such condition or restriction being, in law, necessarily invalid, and the last part, namely, para 3, just referring in that context to further or other provisions which might be thought or rendered necessary for the grantees and/or their heirs upon or by reason of the Nawab Nazim''s death. Alternatively, it is also argued that, even assuming that, purely as a matter of construction of ex. B4, the gifts or grants to the ladies limited to their lives, para. 2 being the really operative or effective part on the question of the grant, that would be tantamount to the conferment of life-estates on the said grantees in the G.P. notes in suit, and, life-estates being unknown in Mahomedan Law, under which-so runs the further argument-such estates automatically enlarge into absolute estates, the interest of the several grantees in the respective G.P. notes was absolute in the eye of law. In either view, therefore,-so contend the Appellants-the seven daughters of the late Nawab Nazim had full and absolute right, title and interest in the suit properties and, upon their death the said properties devolved on their respective natural heirs, there being no contrary usage or custom in the Nizamat family to affect such devolution.
On the question of construction of ex. B4 the learned Subordinate Judge rejected the Appellants'' contention-and his said finding is supported by all the appearing Respondents-but he agreed with them in their view of the law and accepted their alternative argument under this head that the limited interests or life-estates, created by ex. B4, became automatically enlarged into absolute interests or estates by the operation of the special rule of Mahomedan Law. As, however, the learned Subordinate Judge found in favour of the Plaintiff on the question of the Nizamat family custom or usage he eventually decreed the Plaintiff''s suit.
The propriety of the learned Judge''s view that in Mahomedan Law a life-grant is unknown and that it automatically enlarges into an absolute grant in favour of the grantee is assailed before us by the contesting Respondents and both Mr. Gupta and the learned Senior Government Pleader-whatever their differences in the other appeal, F.A. No. 42 of 1946-agree in resisting the Appellants'' argument that ex. B4 contains absolute grants in favour of the grantees either as a matter of construction or as a matter of law.
The question of construction presents no serious difficulty. We have already said that ex. B4 along with the three other documents exs. B2, B6, and B7 constituted the relevant grant. Of this grant, as we shall presently show, the Nawab was the grantor although the grant had to be made with the sanction of the Government, that is, of the "Viceroy and Governor-General "in Council". In this context ex. B4 is really the letter of sanction although it contains also the terms, relevant for our present purpose, on which the grant was made. And, in our opinion, para. 1 of the document (ex. B4) merely records the sanction for the grant, the relevant terms whereof, for purpose of our present enquiry, are to be found in the succeeding para. 2. This latter paragraph contains the grant-and, at that, the whole of it so far as this document (ex. B4) is concerned-in respect inter alia of the sum of Rs. 15,000 in the case of each of the late Nawab Nazim''s daughters out of the total grant of Rs. 20,000, sanctioned for her in the preceding paragraph. It will not be correct to say that para. 2 of ex. B4 merely represents the grantor''s desire as to the manner or mode of enjoyment or that it only embodies certain conditions or restrictions, the grant being contained in the preceding para 1. In our opinion, as we have already said, the grant in ex. B4 is to be found in the second paragraph of the document, the opening paragraph merely recording the sanction for the same, and, that being so, it becomes necessary to construe para 2 of ex. B4 to ascertain the nature of the grant.
Of this para. 2 the language is clear enough to show that, in the several sums of Rs. 15,000 each, the grantor''s real intention was to give the grantees the benefit of the investment thereof in Government securities during their respective lives, or in other words, only the enjoyment of their usufruct till their respective deaths, and this notwithstanding the grant or payment-cash down-of the other part of the total gift (Rs. 20,000), namely, Rs. 5,000 to each of them for her marriage expenses, and, notwithstanding, further, the common sanction for both the parts (Rs. 5,000 and Rs. 15,000) making up the total grant (Rs. 20,000), as recorded in the opening paragraph of the document. The language, used in para 2, is inconsistent with the idea of any absolute grant of the several sums of Rs. 15,000 each and it plainly discloses direct grants of the usufruct and that alone and no more-to the several grantees during their respective lives. It also appears to us that the concluding paragraph of ex. B4 which contemplated, upon the Nawab Nizim''s demise, fresh consideration of the question of provision for his daughters and their children has no real bearing on the determination of the nature of the grant, as contained in the earlier part of the document, and if it has any such bearing that will rather support the limited character of the grants and will not in any way affect or alter the view we have taken above of the nature thereof. We are thus unable to persuade ourselves that, as a matter of construction, ex. B4 conferred any absolute right on the grantees in or in respect of the several investments of Rs. 15,000 each in Government securities or any absolute right in the said several sums of Rs. 15,000 each, subject merely to the restriction on the manner or mode of enjoyment thereof that they were to be "invested in Government securities in the names of trustees for "the benefit of the bride", that is, the grantee, "during her "life time." We are also unable to find any ambiguity in the terms of ex. B4 and we are not prepared to hold that the fact that life-grants or "life-estates" are not so familiar in Mahomedan Law [vide Mst. Humeeda v. Mst. Badlun (1872) 17 W.R. 525 (P.C), (1885) L.R. 12 I.A. 91 (Privy Council) and
We hold, therefore, that ex. B4, properly read, discloses only several life grants-or, more precisely, life-grants simpliciter and those again only in the usufruct-in favour of the Nawab Nazim''s daughters in respect of the Government securities, referred to therein, and we reject the Appellants'' argument to the contrary on this question of construction.
This brings us to the other argument of the Appellants on this part of their case, namely, the special argument, founded on the supposed rule of Mahomedan law that, in that system of jurisprudence, life-grants are unknown and they automatically enlarge into absolute grants. Mr. Sarkar has contended that, even conceding that, as a pure matter of language or construction, the grants, referable to or found in ex. B4, would not enure beyond the lives of the original grantees, namely, the daughters of the late Nawab Nazim, that construction must yield to the special rule of Mahomedan Law, just above stated, so that, as a matter of law, ex. B4 must be construed to have conferred upon the several grantees absolute interests in the several investments of Rs. 15,000 each.
It thus becomes necessary to examine whether there exists in Mahomedan Law any such rule as is contended for by the Appellants'' learned Counsel. That question is one of some difficulty and, upon it Judges have not always spoken with a uniform voice. There are, however, two decisions of the Judicial Committee which plainly negative the Appellants'' contention. In the first of these two decisions, Amjad Khan v. Ashraf Khan (1929) L.R. 56 Ind Ap. 213 : AIR [1929] (P.C.) 149 : 33 C.W.N. 753, their Lordships rejected the theory of automatic enlargement and, in the other, AIR 1948 134 (Privy Council) , not only was the earlier decision re-affirmed but the validity of life-grants in Mahommedan Law was also, in general, affirmed and expressly recognised. In this latter case such grants were found to be quite sustainable in law where they could be held to operate-not upon the corpus but only upon the usufruct. In the face of these two authorities it is difficult to accept the Appellants'' submission and uphold the supposed rule of Mahomedan law on which reliance was placed on their behalf and to give effect to it in the present case, particularly when it is clear that the life-grants, with which we are here concerned, on their own language and as found above by us, relate exclusively and that, too, directly and specifically to the benefits of the several investments in Government securities, that is, to the enjoyment of the usufruct thereof and are thus life-grants in the "usufruct" and not of the "corpus".
If we are right in holding that the grants to the Nawab Nazim''s daughters were, as a matter of construction, life-grants, that is, grants limited to their respective lives, the Appellants are in the same predicament as the claimants before the Judicial Committee in Amjad Khan v. Ashraf Khan (1929) L.R. 56 IndAp 213 : AIR [1929] (P.C.) 149 : 33 C.W.N. 753. If the grants were valid they ended with the grantees'' lives and passed no interest to the Appellants who are merely claimants under them; and, if invalid, they conferred no benefit on the grantees themselves and, necessarily, therefore, nothing on their heirs, the Appellants before us, the latter claiming no higher title. In either view, therefore, the Appellants can derive no assistance from ex. B4 and can claim no interest in the suit properties. And, in our opinion, the decision of the Judicial Committee in Amjad Khan''s case is a direct authority against the theory of automatic enlargement, so much pressed by the Appellants'' learned Counsel, and is a clear answer to his clients'' claim and it definitely concludes them in the matter.
It is true that, in some of the earlier decisions in this country, e.g., the three Bombay cases in Nizamuddin v. Abdul Gafur ILR (1888) Bom. 264, Abdulla v. Mohammad (1905) 7 Bom. L.R. 306 and Mir Akbar Ali Vs. Mir Abdool Ali, , and possibly also the decision of this Court, in Mohammad Shah v. Official Trustee of Bengal ILR (1909) Cal. 431, the view was taken that in Muhammedan Law the grantee under a life-grant got an absolute estate but this paradox was effectively resolved and the underlying theory exploded by the Privy Council in Amjad Khan''s case. We are unable to hold that in this last mentioned authority the question of automatic enlargement of life-grants in Mahomedan Law was left open by the Judicial Committee. If that were so, the appeal before their Lordships could not have been decided. What was left open was the other question, namely, whether life-grants were valid in Mahommedan law, and the case was decided upon the view that, if the life-grant to Musammat Waziran was valid, it ended with the lady''s death, and left nothing for the Appellants who were claiming under her, and, if it was invalid, it conferred no benefit on the grantee herself and, necessarily, therefore, nothing on the Appellants who were no more than claimants under her. If the theory of automatic enlargement had not been rejected by the Judicial Committee this latter conclusion would not have been made and, if the earlier decisions, cited above, were right, Amjad Khan''s case would have been quite differently decided. Those earlier decisions must, therefore, be deemed to have been overruled by the Privy Council in Amjad Khan''s case and they can no longer be held to be good law in this country and the Appellants'' argument, based on them, cannot be accepted.
On the effect of the decision of the Judicial Committee in Amjad Khan''s case our attention was drawn to the views of Ragnekar, J., in the two Bombay cases in Rasoolbibi Vs. Yusuf Ajam Piperdi, and in Bai Saroobai v. Hussein Somji (1936) 86 Bom. L.R. 1903 (F.B.) : AIR [1936] (Bom.) 330 (F.B), but with all respect to the learned Judge we are unable to hold that, in Amjad Ali''s case, the Privy Council did not reject the theory of automatic enlargement of Mahomedan life-grants into absolute grants and did not overrule the earlier decisions in this country upholding the validity of that theory. For reasons already given, we would much prefer the views of the other learned Judges (Beaumant, C.J., as he then was, and Divatia, J.) who decided the said two Bombay cases and, in our opinion, as already stated, the authority of those earlier decisions can no longer be invoked to support the Appellants'' contention on this part of the case.
We are also of the view that the life-grants in the present case were perfectly valid in law. As we have said above, those grants related exclusively and specifically to the usufruct of the several investments in Government securities. They were thus-and this also we have already held-life-grants in the "usufruct" only and not grants of the "corpus". Such life-grants are nowhere forbidden in Mohammedan Law. On the other hand the validity of such grants has been expressly upheld by the Judicial Committee in Nawazish Ali Khan''s case (5) and the authority of this decision sufficiently protects the life-grants in the present case.
It seems to us further that, in the case of Nawazish Ali Khan''s case (Supra) the Judicial Committee clearly approved the view of Wazir Husan, A.J.C, in Amjad Khan v. Ashraf Khan AIR [1925] (Oud) 568, that life-grants simpliciter, that is, where they are not in the form of gifts subject to conditions-were valid in Mahomedan Law and were supportable on the theory that they operated on the "usufruct" and not on the "corpus". This appears to be sufficiently indicated when we find the following passage at p. 78 of the Report, namely-
Sir Wazir Hasan in his judgment examined the appropriate texts and all the relevant decisions of the Privy Council. He pointed out the distinction in Muslim Law between the corpus and the usufruct, between the thing itself and the use of the things.
and it receives further confirmation when, lower down, their Lordships, while holding that "there is no difference between "the several schools of Muslim law in their fundamental "conception of property and ownership" observed that "limited "interests have long been recognised under Shia law" and affirmed the validity of a grant quoted from Baillie in these terms:
I have bestowed on thee this mansion... for thy life or my life or for a fixed period.
(Baillie, II, 226) [vide p. 79 of the Report] and also cited with approval the decision of Jenkins, C.J. and Heaton, J., in Banoo Begum, v. Mir Abed Ali ILR (1907) Bom. 172 where "life estates" in Shia law were expressly recognised. The above discussion and particularly the form of the illustration, quoted from Baillie and approved by their, Lordships in Nawazish Ali Khan''s case (5) at p. 79, sufficiently shows that, according to the Judicial Committee, life-grants simpliciter were not invalid in Mahommedan Law and it was only when such a grant was sought to be created by the device of a gift subject to a condition that the "life-state" failed as such and got enlarged into an absolute estate, the law invalidating by its own force the attached condition.
To appreciate the true legal position it is necessary to remember that "life-estate", that is, life-grant of a property which is usually called a life-estate is not regarded in Mahommedan Law as an estate or interest in the "corpus". That law recognises only one kind of estate, namely, full ownership in the "corpus". The "corpus" means the "article", "the thing" or "the substance". It is distinct from the usufruct which means the "use" of the "article" or the producer of "the thing". A gift of the corpus connotes and comprehends the entire bundle of rights in "the thing" or "the substance", in other words, full rights over the "article" or complete dominion over "the substance". The test is this complete dominion over "the substance". That dominion is absolute and indivisible. It permits no slicing and tolerates no obstacle or restriction. Grant of full dominion over the "corpus" may, however, be accompanied by a gift of the use or usufruct to another, that is, a condition or limitation as regards the "usufruct", and both the grant and the condition will be valid. Limited interests-short of complete ownership-may also be created but not in the form of a gift of the "corpus" subject to a condition affecting the same -"the thing" or "the substance". Any such interest-whether limited "in point of quality or in point of duration" is, in Mahomedan Law, different from the "corpus" and takes effect out of the "usufruct".
In the Muslim Law, therefore, as already stated, there is a clear distinction between the "corpus" or "the substance" and the "usufruct". Over the "corpus" that law recognises only absolute, complete and indivisible ownership and there it countenances no detraction or limitation. In the "usufruct" however, limited interests can be created and the limitation may well be in point of time or duration, e.g., for life or for a fixed period. Limited interests are thus recognised in Mahommedan Law-though not in the corpus but only in the usufruct-and where the grant is of a limited character-but not a grant of the corpus subject to condition-it takes effect out of the usufruct and is not regarded as a grant of the corpus at all but only as a grant of or in the usufruct. A grant of the corpus must be absolute and any condition or restriction derogatory to the grant and affecting the "corpus" must be disregarded and if a limited grant is sought to be made by such a device it leads to the same result, namely, that the condition or restriction is swept aside and the grant takes effect as an absolute grant, that being the only valid grant which can be made of the corpus. A grant of the corpus may, however, be validly made, accompanied by conditions or restrictions, relating to the usufruct, and it takes effect subject to those conditions: (vide, Nawab Umjad Ally Khan v. Mussammat Mohammadee Begum (1867) 11 M.I.A. 517, which, though a Shia case, states the general Mahomedan Law on the point, as explained in Mohammad Abdul Ghani v. Fakhr Jahan Begum (1922) L.R. 49 IndAp 195, 208, a case under the Sunni or the Hanafi Law. And as already said a limited grant-not in the form of a gift subject to a condition affecting "the thing" as the substance as distinguished from its use or "usufruct"-would be valid and would take effect out of the "usufruct".
The above principles are sufficiently recognised in Nawazish Ali Khan''s case (Supra), and there is enough indication in that judgment that the whole discussion of this branch of the law proceeds on that basis, and they explain their Lordships'' final conclusion on this part of the case, appearing at p. 79 of the Report, that-
in dealing with a gift under Muslim law, the first duty of the Court is to construe the gift. If it is a gift of the corpus then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest.
The passage quoted clearly supports the view we have taken above of the effect of this decision of the Judicial Committee and we hold, therefore, that the question of validity of life-grants, with which we are here concerned, must be answered in the affirmative.
We have practically held that, on the question of life-grants in Muhammedan Law and their legal effect, the two decisions of the Privy Council, cited above, are settled law. But even so, any discussion of that subject would be incomplete without a reference to the two earlier decisions in this country, reported in Amjad Khan v. Ashraf Khan (Supra), and Achiruddin Ahmed v. Sakina Bewa, (1945) 50 C.W.N. 59). The first of the above two cases which went up on appeal to the Privy Council in Amjad Khan''s case (Supra) has already been alluded to by us in the course of our discussion of the other Privy Council case of Nawazish Ali Khan''s case (Supra), and it has been pointed out that, in this latter case, the view of Wazir Hassan, A.J.C, in the Oudh case cited, on the validity and effect of life grants in Mahomedan Law, was approvingly referred to by their Lordships of the Judicial Committee. The judgment of the other learned Judge (Ashworth, A.J.C.) who differed from his colleague on the question of law (including the question of construction of the deed there under consideration) does not appear to have found favour with the Privy Council either in Amjad Khan''s case (Supra) or in Nawazish Ali Khan''s case (Supra) and must, therefore, be rejected. In his discussion of the law Sir Wazir Hasan reviewed all the relevant texts and came to the conclusion that a life-grant-not in the form of a gift subject to a condition-was valid in Mahommedan Law. The same view was held by this Court in the case of Achiruddin Ahmed v. Sakina Bewa (1945) 50 C.W.N. 59, above cited, where Chakravartti, J., (as he then was), after an elaborate discussion of the texts from various authorities and reference apparently to Sir Wazir Husan''s judgment in the Oudh case, referred to above with evident approval (vide 50 C.W.N. 73), reached a similar conclusion and, although it may be doubted whether the learned Judge was right in his reading of the earlier decision of this Court in Mohomed Shah v. Official Trustee of Bengal (Supra) there can be no question that he took the correct view on the question of validity of life-grants in Mahomedan Law. As we agree with the two learned Judges (Sir Wazir Hasan, and Chakravartti, JJ.,) in their interpretation of the relevant texts and as the same has apparently been approved by the Judicial Committee in Nawazish Ali Khan''s case we would end our discussion on this general question of Mahommedan Law with a brief examination of the Privy Council cases, relied on by Mr. Sarkar as supporting the Appellants'' contention.
The three Privy Council cases, to which our attention was particularly drawn by Mr. Sarkar, and which are often cited as authorities against the validity of life-grants, or life estates, as they are usually called in Mahommedan Law, are Musammat Humeeda v. Mussamat Badlun (Supra), Abdul Wahid Khan v. Mussammat Nurun Bibi (Supra) and Abdul Gafar v. Nizamuddin (Supra), already cited in an earlier part of this judgment. In our opinion, however, none of these cases supports the extreme proposition, canvassed by the Appellants before us, or repudiates the view we have taken above of the nature and effect of life-grants in Mahommedan Law. Nowhere in the cases cited has it been held that life-grants are necessarily invalid in Mahommedan Law or that such grants are wholly unknown in that system of jurisprudence and they automatically enlarge into absolute grants. They merely point out that such grants are not very familiar amongst Mahommedans and in interpreting Mahommedan grants this aspect ought to be borne in mind so that, in cases of ambiguity in the matter of construction, Courts should lean in favour of the view that absolute interest was intended to be conferred upon the grantee. The guarded language, employed in the Weekly Reporter Case, suggests this and this interpretation is amply borne out by the actual decision in that case and in the other two which quoted the same with approval and applied it to aid the construction of the two deeds, a "compromise" in one case and a "wakfnama" (will) in the other. That this is the true position appears plain when we examine the three cases in their proper perspective.
In Mussamat Hameeda''s case their Lordships were construing an arrangement between a Mahomedan lady and her son and, in the course of their judgment, they observed as follows:
Upon what grounds then ought it to be held that what the son gave up, he gave up for only the life of his mother, retaining the legal reversion in himself ? The creation of such a life-estate does not seem to be consistent with Mahomedan usage.
That, by their above observations, their Lordships did not mean to lay down that life-estates were absolutely unknown or forbidden or invalid in Mahommedan Law becomes quite evident when we turn to the sentence, next succeeding, namely, "and "there ought to be very clear proof of so unusual a transaction". The line, just quoted, would have been wholly irrelevant-and unnecessary too-if no life-estates were, in their Lordships'' opinion, at all permissible in the Mahomedan system of jurisprudence. We get further confirmation of this view when, lower down, we find the Board speaking of life-estates as "transaction so improbable amongst Mahomedans" and of the evidence in the case as "too weak to prove (such) a transaction", and, in our opinion, no general argument of the invalidity of life-grants in Mahommedan law can be founded on their Lordships'' pronouncement in Hameeda''s case (Supra). That case, as we have already said, only enjoins that in construing Mahomedan deeds due weight should be given to the unfamiliarity of such transactions amongst Mahomedans.
The case of Abdul Wahid (Supra) referred with approval to the above observations in Mst. Hameeda''s case and applied the principle of that decision to construe with its aid a Mahomedan compromise upon the broad view that the creation of a life-estate was an unusual transaction amongst the members of that community, it being not apparently consistent with their usage and so "there ought to be clear proof" of such a transaction. Not the slightest departure was made from the law, as laid down in Mst. Hameeda''s case, but the same was only fully accepted and applied to a similar situation and it seems to us that Abdul Wahid''s case merely emphasised once again the unusual nature of the transaction and the need of very clear proof of it but did not negative its validity absolutely and under all circumstances.
There remains now the decision, reported in Abdul Gafoor and Ors. v. Nizamuddin and Ors. (Supra). This case also hardly aids the Appellants. The "wakfnama" here purported to settle certain properties on the executant''s wives and children, etc., subject to an express limitation that none of them would have the power to alienate the said properties by sale, gift or mortgage. Clearly, therefore, it purported to make gifts subject to conditions or limitations in the shape of restraints against alienation. Such conditions or limitations were admittedly void in Mahomedan Law and it was, accordingly, so held by their Lordships. Before their Lordships, however, an argument appears to have been made that the deed ought to be read as creating, in substance, successive life-estates or a series of life-rents, and, while dealing with that argument, their Lordships indicated the true approach in the matter of construction of Mahommedan deeds by referring to Mst. Hameeda''s case (Supra) and thereby drawing attention to the unusual nature of such transactions amongst Mahomedans and, the context and the reference to Hameeda''s case make it plain that their Lordships were not adding anything to the exposition of the law, as made by that earlier pronouncement, or laying down any new or different principle.
It is clear also from what has been stated above that Abdul Gafoor''s case (Supra) was not a case of life-estate simpliciter but was a case of gifts subject to conditions or limitations which were admittedly void in Mahomedan Law. That was how the case was treated by their Lordships of the Judicial Committee at p. 178 of the Report where they made the following significant observations, namely:
Even if Tahirabibi had expressly consented to accept the will, she would not have been the owner of a life-estate, but a full-owner, with a prohibition against alienation, which, being void in law, could not affect either herself or her creditors.
The passage quoted also shows that their Lordships were making a distinction between the grant of a life-estate as such and a gift subject to a condition and were certainly not pronouncing against the validity of the former. Substantially similar was the position in Abdul Wahid''s case (Supra), too, where apart from the fact, already stated, that the disputed compromise was held to be similar to the one in Mst. Hameeda''s case and to confer upon the grantee not a limited estate for life but an absolute estate on similar principles of construction, there was, strictly speaking, no life-grant simpliciter but a grant subject to an express condition, clearly affecting the corpus. In such circumstances, neither of the above two Privy Council decisions can be regarded as any authority against the validity of life-grants in Mahommedan Law, particularly when Hameeda''s case, which apparently recognised the possibility of such grants, was approvingly cited by their Lordships in both the above cases and was, as a matter of fact, relied on by them as the law on the subject.
Mr. Sarkar also referred in passing to two other decisions of the Judicial Committee, both reported in L.R. 8 IndAp 25 and the other at p. 117. The first case (1881) L.R. 8 I.A. 25 (Privy Council) , turned en the construction of an instrument in which the executant, after making an absolute gift of certain villages in favour of his sister-in-law, went on to add the following:
I do declare and record that the aforesaid sister-in-law may manage the said villages for herself and apply their income to meet her necessary expenses and to pay the Government revenue.
On the strength of the above clause it was contended before the Privy Council that the transaction was not a gift, not even a life-grant, but "an ariat or loan". This was rejected by their Lordships who, after referring to several other parts of the instrument in question and various features of the disputed transaction, held that the clause quoted was "descriptive of the "motive or consideration of the gift" and was ineffectual to control the operation of technical words of gift. There is nothing in this judgment against the validity of life-grants in Mahommedan Law and, indeed, no such question appears to have been raised before their Lordships and, as already stated, there was no contention that the transaction represented a "gift for "life". We may add also that, on our construction of ex. B4, there is, in the present case, no absolute gift, followed by a qualifying or "descriptive" clause, and para. 2 of that document (ex. B4) contains the grant and is not a subsidiary clause and, accordingly, this case of Hazi Mohammad Faiz Ahmed Khan (Supra) cannot aid the Appellants on the question of construction either. In the other case (1881) L.R. 8 I.A. 117 (Privy Council) the question of validity of life-grants in Muhammedan Law was expressly left open. Possibly, also, this case, too, was the case of a gift subject to a condition and, accordingly, the condition appeared to their Lordships to be void. No other conclusion seems possible as, the parties in the case, apparently belonging to the Shia school, it is difficult to believe that their Lordships would have pronounced a life-grant invalid. This disposes of all the cases, cited on behalf of the Appellants, in support of their present contention.
In the light of what we have stated so far the true approach when a Mahommedan grant falls for consideration is first to construe the deed as a whole, bearing in mind that life-grants are not very familiar in Mahomedan Law. If, upon such construction, the grant is held to be an absolute grant, no further question arises. If, however, the grant is found to be a limited grant, the direct or the immediate subject-matter of the gift has to be ascertained. If it is the "corpus", as explained above, any restrictive condition, affecting the same, will be invalid and the grant will have effect as an absolute grant. If, on the other hand, the direct or the immediate subject-matter of the grant be the limited interest and not the "corpus", the grant takes effect out of the usufruct as a valid limited grant. In this view of the matter we hold that the disputed life-grants in the present case were valid as such and did not enlarge into any absolute grant in favour of the grantees.
Pertinently also we may point out that, amongst Shias in this country, life-grants have long been recognised as valid, Banoo Begum v. Mir Abed Ali (Supra), cited with approval by the Privy Council in Nawazish Ali Khan''s case (Supra). It is undisputed, that the late Nawab Nazim or, for the matter of that, the Nizamat family-and all his descendants who are parties to the present suit-professed and profess the Shia faith and so no difficulty arises in giving effect to the disputed grants which we have found to be limited to the lives of the respective grantees as such limited or life-grants. In this view, too, the Appellants'' alternative argument must fail. We, accordingly, reject the same.
It follows then that the learned Subordinate Judge''s ultimate finding on this point in the Appellants'' favour is incorrect. It is, accordingly, reversed, the necessary consequence being that the Appellants'' claim of title to the suit properties-and with it the main purpose of this appeal-fails.
The above discussion really makes it unnecessary for us to consider the question of family usage or custom, alternatively relied on by the Plaintiff on this part of the case. As, however, that question has been argued before us in great detail by the contesting parties, we shall record our views upon the same. Upon this point, too, we are unable to agree with the learned Subordinate Judge notwithstanding Mr. Gupta''s very elaborate arguments in support of the same. We find no evidence, at any rate, no reliable evidence, of any such custom or usage in the matter of succession to properties of daughters of the Nizamat family. The instances, cited on the Plaintiff''s behalf, all relate to properties of Begums of the Nizamat family, that is, of females, married into the Nizamat household, and not of daughters of the said family who, as such daughters, particularly when they are married daughters, as in the case now before us, occupy quite a different position in relation to the same. It has not been proved that, to the properties of any deceased daughter, much less a deceased married daughter, of the Nizamat family as such, the Nawab succeeded in preference to the lady''s natural heirs. Rather, the evidence on record shows that at least in the case of some of the Nawab''s daughters their properties passed, upon their death, to their heir or devises under will or even to their creditors. Mr. Gupta''s argument that that evidence is confined to cases of testate succession and is thus not opposed to the custom, pleaded in the plaint, which, according to him, refers only to cases of intestate succession, these alone being relevant in the present dispute between the parties, though plausible as an explanation and certainly ingenious can hardly be accepted in the circumstances of this case. In any event, even upon that argument, the Plaintiff''s position would be no better. There is practically nothing in the present records, pointing to the Nawab''s succession to properties, left by a daughter of the Nizamat family, and, in the absence of any sufficient evidence in that behalf, a finding in the Plaintiff''s favour on this question of custom would not be justified. This is apart from the other objection-not wholly without force-that, of this limited custom, so strongly relied on by Mr. Gupta in this appeal, there is no proper or sufficient pleading in the Plaintiff''s plaint. In support of his finding that the custom has been proved the learned Subordinate Judge has referred to the judgment of this Court in the case of Booa Russoolee v. The Nawab Nazim of Bengal (1869) 11 W.R. 382, and to a passage from the appellate judgment of the Judicial Committee in that very case, Oomrao Begum v. Nawab Nazim of Bengal (1875) 24 W.R. 28, 29 P.C., which he has quoted and used as an authoritative judicial recognition of such custom-of its validity and application as well-and, indeed, his decision on this point is largely founded upon the same and certain other passages, culled from the proceedings of the commissioners, appointed under the Nawab Nazim''s Debts Act, which we shall presently examine.
The Weekly Reporter case-of which the High Court judgment is in Booa Russoolee v. The Nawab Nazim of Bengal (1869) 11 W.R. 382, and the Privy Council''s in Oomrao Begum v. Nawab Nazim of Bengal (1875) 24 W.R. 28, 29 P.C.-arose out of certain disputes between the then Nawab Nazim of Bengal who was the Plaintiff there and the widows, mother and daughters of one Syed Mehdi Ally Khan who were impleaded by him as Defendants. Those disputes centred round the title to a certain zemindary, alleged to have been left by one "Amirunnessa alias Doolhin Begum, the "widow of Nawab Ali Jah, deceased, a grand uncle of the Plaintiff "and who preceded him as Nawab Nazim", vide Oomrao Begum v. Nawab Nazim of Bengal (1875) 24 W.R. 28, 29 P.C. In support of his claim to the said zamindary the Plaintiff Nawab there pleaded inter alia and relied upon a family custom entitling him to succeed to the Begum''s properties upon the latter''s death in preference to their natural heirs and also upon a Ladavinama or deed of disclaimer, executed in his favour by the Defendants'' predecessor Mehdi Ally Khan and his wife Azizunnessa, Defendant No. 4 in the suit. Both Courts in this country accepted the Ladavinama as a genuine document but, while the learned trial Judge held
That in consequence of it the Defendants as heirs of Mehdi Ally could not claim a right to succeed to the (suit) property and consequently that it was unnecessary to come to any finding as to the custom set up by the Nawab under which he claimed the right to succeed to the property of the Begum,
the High Court, on appeal, having found for the Nawab upon the question of the custom, treating the "Ladavinama" as strong evidence in support of it, apparently considered it unnecessary to come to any definite decision as to the effect of the Ladavinama. Upon further appeal, the Privy Council held that the Ladavee or Ladavinama was founded upon a valuable consideration and that the Defendants were bound by it, their Lordships observing in the course of their judgment that-
The Ladavinama was binding upon the heirs of Mehdi Ally and precluded them from setting up a claim to the property and that
In any view of the case Mehdi Ally and his heirs could not assert any title to the property without setting aside the Ladavinama.
Their Lordships also made it clear that, having regard to their opinion as to the legal effect of the Ladavinama, it was
Not necessary to decide whether, upon the death of the Begum, her property went over to the Nizamat according to usage, as stated in the Ladavinama.
It further appears from the Report that the passage, quoted by the learned Subordinate Judge from 24 W.R. 29, namely, the Plaintiff (the Nawab Nazim of Bengal, Behar and Orissa), according to the long established custom of his family, recognised by the Government of India on various previous occasions of the demise of Begums of his house succeeded as her heir to the said "Zamindari" and treated by him as a part of the Privy Council decision, occurs in the recital portion of their Lordships'' judgment where the Plaintiff''s case is stated and an extract from the plaint is given and forms no part of their decision or findings on any issue between the parties.
The above discussion makes it plain that neither the High Court decision nor the Privy Council judgment, to which reference has been made above, can be of any real assistance to the present Plaintiff. Clearly, the question of the family custom was left open by the Judicial Committee and the passage from the Report on which the learned Subordinate Judge has relied upon a misconception that it was a part of their decision was not really so. To this passage the learned Subordinate Judge has attributed a far greater sanctity than it really deserves and this misplaced emphasis, has led him to an obvious error. The passage quoted may, at the most, be used by the Plaintiff as an ancient assertion, made about a century back, that, according to the long established custom of his family, the Nawab Nazim was entitled to the properties of deceased Begums of his house but, whatever effect be given to this assertion, it cannot go far enough to assist the Plaintiff-Respondent in his claim of title to the disputed properties. We have made it clear in an earlier part of this judgment that, in relation to the Nizamat family, a daughter as such and, the more so, when she is a married daughter-stands in an essentially different position from a Begum of the house and a Nizamat family custom which only entitles the Nawab to succeed to the Begum''s properties would not necessarily be available to him for claiming title to the properties of a deceased daughter-far less of a deceased married daughter-of the Nizamat family as such. In the Weekly Reporter case the family custom asserted related to the Nawab''s preferential succession to the Begums'' properties and the assertion, therefore, has no material legal value so far as the present Plaintiff''s claim of title is concerned. Similar remarks apply to the High Court judgment reported in Booa Russolee''s case (Supra). Granting that the High Court decision on the point of the Nizamat family custom holding that the said custom had been established by the evidence there on record, retained all its force and remained wholly unimpaired and in the fulness of its glory even though the Judicial Committee eventually left the said question open, it can be of little use to the present Plaintiff as the custom, there pleaded and found, was one relating to succession to the Begums'' properties and not to those of the daughters of the Nawab family and for reasons, already given, that custom would be of little avail in the present case. The learned Subordinate Judge was, therefore, not justified in using the two Weekly Reporter decisions as proof or evidence of judicial recognition of the custom, relevant to the present Plaintiff''s claim to the suit properties.
The two extracts, quoted by the learned Subordinate Judge from the commissioner''s proceedings under the Nawab Nazim''s Debts Act, can serve the Plaintiff no better. There, also nothing, is to be found about any custom entitling the Nawab Nazim or the Lord of the Nizamat family to succeed to properties belonging to daughters of the family. The custom, there considered, also related to succession to the Begums'' properties and thus the said proceedings too would hardly be of any aid to the Plaintiff''s cause. Besides, the first quotation really sets out nothing more than a part of the Nawab''s arguments before the commissioners and the other merely shows that, even when the Nawab Nazim succeeded to the Begums'' properties by virtue of the family custom, such properties became not his "private property" but "an appendage to the dignity". The custom, therefore, which was the subject of discussion in the commissioner''s proceedings under the Nawab Nazim''s Debts Act and which, apparently, was relied on by the learned Subordinate Judge for finding in the Plaintiff''s favour on his alternative claim of title by customary succession, is hardly relevant for the said purpose and the learned Judge in the Court below was not right in placing reliance upon the same for purposes of this case.
On this part of the case the learned Subordinate Judge also relied upon the Moorshidabad Act which, according to him, "bears ample testimony to the said custom being followed" and he cited several pages of the said Act as containing instances of the Nawab''s customary succession to the Begums'' properties. Of the names mentioned, Raisannessa and Noasi were clearly, on the evidence, ladies married into the Nizamat family and only Sultan Gatiarah and Hossaini Begum appear to be daughters of the family. Nothing has been placed before us to show whether any of the other Begums referred to by the learned Judge were daughters of the Nizamat household. The cases of these Begums therefore, and also of Raisannessa and Noasi may be left out for our present purpose as, in our opinion, already sufficiently indicated, the Plaintiff, in order to succeed on his plea of family custom, has to establish sufficient instances of the Nawab''s customary succession to properties of the daughters of the Nizamat family as distinct from Begums or ladies married into the family. Of the instances cited by the learned Judge from the Moorshidabad Act only two, therefore, appear to be relevant, namely, the cases of Sultan Gatiarah and Hossaini Begum. As to the latter, however, it is not at all clear from the Act whether any of her properties passed to the Nawab, the references at pp. 28 and 34 to Hossainbagh or Hosseinbagh not being sufficiently definite on the point, and the oral evidence as to her properties, having gone over to the Nawab upon her death, is highly conflicting and hardly satisfactory. Also, neither the learned Subordinate Judge nor Mr. Gupta placed any reliance upon this oral evidence and, as a matter of fact, Mr. Gupta conceded that the oral evidence on this point of custom was extremely unsatisfactory and insufficient. Strong reliance was, however, placed by Mr. Gupta on the case of Sultan Gatiarah Begum and it was pointed out by him that she was without doubt a daughter of the Nizamat family (vide P.W. 2, P.W. 3 and D.W. 2) and that her properties went over on her death to the Plaintiff Nawab (vide the Moorshidabad Act) and that too on an assertion of the Nawab''s customary right of succession [vide ex. 2(a)] which the Government recognised [vide ex. 2(c) and the Moorshidabad Act]. These materials, however, do not, in our opinion, justify a finding in the Plaintiff''s favour on the question of his claim of title made in the present suit on the basis of family custom. That Sultan Gatiarah was a daughter of the Nawab family may be said to have been fairly established in this suit, that, upon her death, her properties were added to the "Nizamat State properties" is also fairly clear from exs. 2(c) and 2(a) and the Moorshidabad Act and that the Government apparently recognised the Nawab''s claim to "and the immovable property of Sultan Gatiarah Begum "to the State property" on the footing that the same had been inherited by him as "Nizamat State property" by virtue of the long established Nizamat family custom may also be conceded but that would hardly be sufficient to entitle the Plaintiff to claim-as has been done in this suit-the Nawab Nazim''s daughters'' properties as his "personal properties" on the strength of any such custom.
In the above circumstances the Plaintiff''s alternative claim of title to the suit properties under the alleged family custom must fail. If, therefore, we could have agreed with the learned trial Judge as to the legal effect of the grants in ex. B4, the Appellants'' claim of title would have prevailed over the Plaintiff Nawab''s. As, however, we have held against the Appellants'' contention that the grants in the said ex. B4 in favour of the Nawab Nazim''s daughters were absolute in character either as a matter of construction or as a matter of law, this appeal must fail and, notwithstanding the adverse views held by us on the Plaintiff-Respondent''s alternative claim of customary title, his suit would succeed, if the further points raised in the connected appeal, viz., F.A. No. 42 of 1946 on behalf of the other contesting Defendants the Province of Bengal and the Governor-General in Council, now the Union of India, be answered in the Nawab''s favour. We, accordingly, proceed to consider the said other Appeal, F.A. No. 42 of 1946.
F.A. No. 42 of 1946.
In this appeal which was filed by the other set of contesting Defendants, namely, the Government Defendants Nos. 1 and 2, several major points were urged on behalf of the Appellants, any one of which succeeding, so contended their learned advocates, the Plaintiff''s suit was bound to fail. There were also one or two minor arguments which we shall notice in due course and discuss in their proper places.
The learned Senior Government Pleader first contended that the Plaintiff''s suit was barred under the proviso to Section 42 of the Specific Relief Act. This contention was also raised in the Court below but it was negatived by the learned Subordinate Judge. As we shall be partly accepting this plea and, while holding that the Plaintiff''s suit is not maintainable in its present form, would be giving the Plaintiff an opportunity to amend his plaint on terms to avoid the mischief of the relevant statutory provision and, as we shall be rejecting all the other points, raised in support of this appeal, we propose to take up this point last and deal with this part of the case towards the end of our judgment. Consideration of the question u/s 42 of the Specific Relief Act is, accordingly, deferred at this stage and we shall revert to it after we have disposed of the Appellants'' other contentions. So much now for the first point, urged in support of this appeal.
It was next contended by the learned Government Pleaders that the Nizamat Deposit Fund out of which admittedly the several G.P. notes or securities in suit had come was public money or Government revenue and that, accordingly, neither the Plaintiff Nawab nor, for the matter of that, any private person has or can have any possible claim over or in respect of the said Fund or the said securities or any part thereof. If this contention about the character of the Nizamat Deposit Fund be correct it will perhaps mean the end of the Plaintiff''s claim in the present suit as, on no conceivable basis, would the Nawab be then able to establish his title to the suit securities.
The character of the Nizamat Deposit Fund is thus one of the principal questions, arising in the present case, and naturally, therefore, it is one of the hotly contested issues between the parties before us. The learned Subordinate Judge has found that the said Fund is not public money or part of Government revenue and he has further found that the same is held by the Government as trustees for the Nawab Nazim and his heirs or for the benefit of the Nizamat family. With the earlier of these two findings we entirely agree and on the latter we do not feel called upon to express any opinion in this case. Upon the materials before us [vide ex. 2(d)-the letter, dated September 3, 1790] the origin of the Nizamat Deposit Fund is traceable to that part, namely, Rs. 18,000 each month, of the Nawab Nazim''s stipend which was set apart for the payment of his debts and for meeting the growing needs of his "future "increasing family". This was apparently done with his consent [vide the said letter ex. 2(d)]. The stipend was really the Nawab''s money and, although, apparently it was meant also for purposes of his family he was in no way its trustee and it does not appear that his ownership of this money was ever seriously doubted or questioned. That the Nawab was the owner of the stipend was almost always fairly acknowledged and the records bear ample testimony that this stipend was regarded and often spoken of as the Nawab''s stipend or his "personal stipend" [vide, e.g., ex. 2(d) and ex. D]. Indeed, it seems to us that his ownership of this money was absolute and he could have spent it, both in fact and in law, as he liked, subject only to the restrictions which were imposed in course of time with his consent upon his user thereof. Out of this stipend, the sum of Rs. 18,000 per month was set apart for the payment of his debts and for meeting the growing expenses of his future increasing family. The stipend, however, was never withheld nor was it really reduced but just a part of it was merely earmarked or set apart-and that, too, with his consent, for his own special needs or special purposes. The savings or the accumulations from this money, so set apart, gave rise to the Nizamat Deposit Fund. To all intents and purposes, therefore. this Fund was the Nawab Nazim''s private or personal money, though it was placed in the hands of the Company''s officers (the Government) for purposes of actual disbursement. This private character of the Fund was expressly acknowledged by the Board or Court of Directors and repudiated in the clearest possible terms the contrary suggestion of the Deputy Governor-General to the effect that the Fund was public money [vide, the Court''s letter, dated April 24, 1840, ex. 2(h)]. True, there were in later days further occasional unsuccessful attempts by some overzealous officers to assert the company''s or the Government''s alleged right over the Fund to the exclusion of the Nawab Nazim and in denial of his claim or control over the same [vide, ex. B(12), dated July 15, 1852] but, when it is remembered how the Fund originated and when the relevant correspondence, particularly ex. 2(h) is read, no doubt remains as to its private character. The manner of its application namely, for the purposes of the Nawab and his family [vide, ex. 2(d), vide, also ex. 2(g)], and that, apparently, with his consent [vide, again, ex. 2(d), vide also para. 2 of ex. B(12)], is quite consistent with such character and, indeed, confirms the same. It does not appear from the records before us that the Fund was ever employed for purposes other than the Nawab''s or his family''s nor has anything been placed before us to justify a finding that in the matter of its appropriation the Nawab was ignored or treated as nobody. It rather seems to us from the materials on record that the real position was that the Nizamat Deposit Fund was the Nawab''s private fund although it had to be spent or disbursed, so long as the purposes under ex. 2(d) had not been fully met, with the Company''s or the Government''s sanction or approval. The particular disbursements with which we are hereby directly concerned, namely, the grants to the Nawab''s daughters by way of investment in the G.P. Notes in suit, are instances in point. These disbursements appear to have been made by or on behalf of the Nawab though with the sanction of the Governor-General in Council [vide, exs. B2 and B4) and, indeed, and, as a matter of fact, the trustees who were to hold the investments in terms of ex. B4 were actually appointed by the Nawab [vide, exs. B(6) and B(7)]. We, therefore, agree, with the learned Subordinate Judge in holding that the Nizamat Deposit Fund was not public money or part of Government revenue but that it belonged to the Nawab Nazim, though allocated and set apart for certain specific objects and purposes, and, to that extent and until the fulfilment of the said objects and purposes, it was placed in the hands of the Government for actual management. Nothing more need be said on this aspect of the matter, so far as this case is concerned, and, accordingly, we reserve our opinion on the further question which was raised before the learned Subordinate Judge and which was answered by him against the Government Defendants'' namely, whether the Government were trustees in respect of this Nizamat Deposit Fund. That question, though it was originally mooted before us by the learned Senior Government Pleader and also argued at some length by his learned Junior who followed him, was not eventually pressed to a decision and, all the parties agreeing that it was not necessary to answer the said question in these proceedings, we intimated at the hearing that we would not conclude that point by any decision in this case. We, accordingly, leave this further question open, holding merely that the Nizamat Deposit Fund was not public money or part of Government revenue, as claimed by the Appellants, but was Nawab''s money in the hands of the Government who had, in actual practice, a somewhat large control over its disbursement. The net position, therefore, is that we overrule the Appellants'' contention that the Nizamat Deposit Fund was public money or part of Government revenue, making it clear at the same time that the further finding of the learned Subordinate Judge that the Government were trustees in respect of the said Fund would not bind the parties or conclude them in any future proceedings.
More direct is the Appellants'' third attack. It immediately concerns the Plaintiff''s claim to the suit properties and raises the bar of limitation in answer to the same. The learned Government Pleaders have argued that, even assuming that the Nizamat Deposit Fund was a private fund, belonging to the Nawab Nazim, and conceding further that the suit properties belonged to the Plaintiff Nawab as the last Nawab Nazim''s heir, his present claim to the same against the Government was hopelessly barred by limitation, this suit having been instituted long over thirteen years after the death of the last of the seven ladies-the seven daughters of the late Nawab Nazim-for whose benefit during their respective lives the investments in question were made. But in brief, the contention is that the Plaintiff''s claim, if any, to the several investments, now in suit, arose upon the death of the respective beneficiaries, namely, one or other of the seven daughters of the last Nawab Nazim and in no view of the case therefore, can the cause of action for this suit or the accrual of the right to sue in respect of the said investments or any of them be placed later than or posterior to the last or latest of the deaths of the said seven ladies, and, that being so, the suit would be time-barred even under Article 120 of the Limitation Act which, according to the Appellants, contains on the most favourable view of the Plaintiff''s case, the maximum possible period, namely, six years from the accrual of the right to sue or the cause of action for enforcement of his alleged claim or claims.
The validity of this contention is seriously challenged by Mr. Gupta who appears for the Plaintiff-Respondent and his answer is that with regard to the suit investments the Government is a trustee-an "express trustee"-for his client, that is, a person in whom (the suit) property has become vested in trust for (a) "specific purpose" within the meaning of Section 10 of the Indian Limitation Act, and so no question of limitation properly arises in these proceedings. There is little doubt that if the Government is a truetee, an "express" or "specific" trustee, as urged above by Mr. Gupta, the Appellants'' present contention must fail. If, however, it turns out that the Government is not a trustee or not a trustee for the Plaintiff or not a trustee for him for any specific trust or "trust for any specific purpose", as contemplated in Section 10 of the Limitation Act, the Appellants'' plea of limitation must prevail. It thus becomes necessary to consider this matter in all its various aspects as stated above.
The questions we have just indicated as requiring investigation on this part of the care are-
(1) whether the Government is a trustee in respect of the suit investments, and, if so,
(2) whether the Government is a trustee for the Plaintiff in respect of the same, and, if so again,
(3) whether the Government is such a trustee as is contemplated in Section 10 of the Indian Limitation Act, or in other words, whether the alleged trust in the Plaintiff''s favour is a "trust for any specific purpose" within the meaning of the said section.
The Plaintiff can succeed only if all these questions are answered in the affirmative. Any other answer would obviously be fatal to his suit.
That there was a trust created in favour of each of the Nawab Nazim''s seven daughters, named in the plaint, in respect of the several G.P. notes in suit, mentioned against her name in the plaint schedule, admits of no possible doubt. It is also fairly proved that the Government was the trustee of the said several trusts. These appear clear from the several documents filed by the Government themselves [vide exs. B(4), B(7), B(6) and B(9).]. We have already found that the money invested in these Notes came from the Nizamat Deposit Fund which belonged to the Nawab Nazim. We have also found that the Government''s appointment as the trustee to the several trusts, noted above, was made by the Nawab Nazim. It thus follows that of the said several trusts the Nawab Nazim was the settlor, the Government was the trustee, the seven ladies were the several beneficiaries and the respective Notes in suit were the relative trust properties. The Appellants'' arguments to the contrary, namely, that there was no trust or that the trust was void in law on account of uncertainty as to the settlor, the beneficiary, the trustee and even the trust property cannot be accepted in the face of the above materials on record. It further follows from ex. B(4), as already construed by us, that the trusts created were for the respective lives of the said several ladies or beneficiaries who were merely to enjoy, during their respective lives, the usufruct of the different investments, made for their respective benefits. Each of the trusts created was, therefore, such as "would be" completely executed without exhausting the trust property" and, accordingly, under-or, at any rate, upon the principles of Section 83 of the Indian Trusts Act, "the trustee", or the Government in the present case,-
In the absence of a direction to the contrary, would hold the trust property, or so much thereof as is unexhausted.
that is, the suit properties, "for the benefit of the author of the "trust", namely, the settlor Nawab "Nazim" "or his legal "representative" who is no other than the Plaintiff himself.
Before, however, we reach the above conclusion we have to examine carefully whether and to what extent the said statute or the principles embodied therein, would apply to the trusts here under consideration. Those trusts were admittedly created in the year 1873 when the Indian Trusts Act had not been enacted. This Act was passed on January 13, 1882, it came into force in Madras, the North-Western Frontier Provinces, Oudh, Coorg, Assam and the Central Provinces and the Punjab on the first day of March that year. It was extended to Bengal some years later, namely, in 1913 and at the time of institution of this suit it was there in operation. Section 1 of the Act makes it quite clear that, subject to the two savings or exceptions, therein contained, all trusts in territories within the local limits of its application would come within the purview of the statute. The first exception deals with certain rules relating to wakfs and with religious and charitable endowments, undivided families, prizes of war, etc., and is wholly irrelevant for our present purpose. Similar is the case with the other exception which merely excludes the applicability of Ch. II-and of no others to trusts, created before the Act. This latter exception, however, sufficiently indicates that the other Chapters would apply to such trusts. Section 83 which is contained in Ch. IX of the Act would, therefore, apply to trusts, created before its enactment and would thus be available in this case. At any rate, the principles underlying that statutory provision would certainly apply (vide, (1931) ILR 10 PAT 851 (Privy Council) . Those, indeed, were no new principles, invented or introduced for the first time in this country. Section 83 merely modified the law of resulting trusts. Such trusts were no new innovations but were known and recognised in the law of trusts in this country-both Hindu and Mahomedan, and widely applied from long before the Act of 1882. Judged in the above light, the several trusts of 1873, with which we are here concerned, will be governed by the rule of law, contained in Section 83 of the Indian Trust Act, or at any rate, by the principles, underlying the same, with the result that, upon the execution of the limited trusts in favour of the seven ladies, there arose or resulted in each case a trust in favour of the settlor Nawab or his legal representative [vide, the statutory parallel in Illustration (b) to Section 83 of the Act] and till now this resulting trust has not been discharged or extinguished. Plainly, therefore, the suit securities are now held by the Government Defendants as trustees for the Plaintiff Nawab-the settlor Nawab Nazim being long dead and the Plaintiff being now his admitted legal representative--under a resulting trust, as set out above. We, accordingly, answer the first two questions, posed above, in the affirmative and proceed to consider the third.
The real point for enquiry now is whether a resulting trust of the type, discussed above, comes within the language of Section 10 of the Indian Limitation Act and entitles its beneficiaries to the protection of that section. Resulting trusts arise inter alia, under two circumstances, vide, Section 83 of the Indian Trusts Act (II of 1882)-namely, (1) "when a trust"-the original or the declared trust-"is incapable of being executed" or (2) "where "the trust is completely executed without exhausting the trust "property". The first of the above two types arises on failure of the declared trust. Law nullifies the settlor''s intention and imposes its own, the declared trust is completely overthrown and in its place quite a different trust is raised. The resulting trust is thus contrary to the settlor''s will and could never have been in his contemplation. Not so always the other type. There the declared trust is completely executed and still a residue remains of the trust property. This will obviously include cases (a) where the position that a residue would remain was apparent from the trust instrument itself and was certain from the very beginning and (b) where there was no such certainty, although, eventually a residue was actually left after execution of the declared trust. In this latter type 2(b) the settlor could not possibly have anticipated that a residue would be ultimately left and the resulting trust could not, therefore, have been in his contemplation. Not so, however, is the case of the other type 2(a). In type 2(a) the existence of the residue was never in doubt but was clear all along. It was not, however, actually disposed of by the settlor but was apparently left in the hands of the trustee. In such circumstances, it would be doing no violence to the settlor''s intention and, indeed, it would be fully consistent and quite in keeping with it if, with regard to this residue, a trust is raised in favour of the settlor or his legal representative and the trustee be deemed to be holding the same on such a trust. Such a trust would be the nearest to his undeclared intention and may well be deemed to have been in his contemplation when he declared the original trust. It would indeed be really arising from the trust instrument itself simultaneously or along with the declared trust. When, therefore, in such a case the trust property becomes vested in the trustee under or in pursuance of the declared trust it becomes so vested not only for the purposes of the said trust but also for the purposes of the undeclared or resulting trust which arises in the wake of its fulfilment or complete execution. This resulting trust follows, as it were, the declared trust for the purpose of effectuating the testator''s intention and does not in any way affect or tend to affect or supersede or nullify the same. It thus follows that, in relation to this latter trust also, the trust property becomes vested in the trustee in trust for a specific purpose so as to attract Section 10 of the Indian Limitation Act. To cases of resulting trusts of type 2(a), mentioned above, Section 10 of the Limitation Act would thus apply and the time bar would be avoided and, that being so, the present suit would not be affected by the law of limitation, the resulting trust in the Plaintiff''s favour, as found by us, being clearly one which comes within this protected type. The Appellants'' plea of limitation must, therefore, fail and it is overruled.
The view we have expressed above is not really opposed to any of the numerous cases, cited before us by the learned Government Pleaders. It has on the other hand strong support from the decision of the Judicial Committee in the case of Khaw Sim Tek v. Chua Hooi Gnoh Neoh (1921) L.R. 49 IndAp 37. Even before this Privy Council decision the same view was expressed in a number of cases in this country (vide, e.g., Mathuradas Damodardas v. Vandrawandas Sunderji ILR (1906) Bom. 222; Mojilal Premanand v. Govrishankar Kusalji ILR (1910) Bom. 49; Mohamed Ibrahim Bin Haji Goolam Saheb Londay v. Abdul Latiff Haji Mahomed Ibrahim Jitayker ILR (1912) Bom. 447; Lallubhai Bapubhai and Ors. v. Mankuvarabai and Ors. ILR (1876) 2 Bom. 388 (F.B.); and it was often laid down that a resulting trust arising, and certain to arise upon the terms of the instrument of trust, on the fulfilment or execution of the declared trust and not in denial of it or on its failure-is a trust for specific purpose. In England, too, a similar view prevailed from very early times. The well-known case of Salter v. Cavanagh (1838) 1 Dr. and Wal. 668 : 56 R.R. 222, decided by the English Court over a century back, is possibly the earliest authority in support of this view. That case was followed with evident approval in the later English decision, Patrick v. Simpson (1889) 24 W.B.D. 128, and was also accepted by Kekewich, J., in Churcher v. Martin (1889) 42 Ch. D. 312, 319, and the Judicial Committee in Khaw Sim''s case expressly affirmed Salter v. Cavanagh (Supra), as good law for this country. In this Privy Council case (Khaw Sim Teh v. Chua Hooi Gnoh Neoh (Supra), Section 10 of the Limitation of Suits Ordinance (VI of 1896) of the Straits Settlements which was in pari materia with the relevant part of the present Section 10 of the Indian Limitation Act (IX of 1908) directly came up for consideration and the Board''s discussion clearly illustrates the distinction between the two types of resulting trusts-type (1) and type 2(a), mentioned above, in the matter of application of that section, and expressly points out that, while in the one case, namely, where the resulting trust arises on failure or supersession of the declared trust-the section does not apply, and as we shall presently show, substantially similar is the position where the resulting trust is of type 2(b), to the other type, that is, to a resulting trust, arising, and certain to arise, upon the terms of the instrument of trust, on execution or fulfilment of the declared trust, its benefits would be available. This sufficiently appears from the decision at pp. 42-43 of the Report and we are not convinced that any other interpretation is possible of the Board''s pronouncement in that case. The same principle has since been re-affirmed by the Privy Council in its later decision in Annamalai Chettiar v. Muthukaruppam Chettiar (1930) 35 C.W.N. 145 P.C.
The cases, cited by the Appellants, are all distinguishable and, on the principles noticed above, they are all easily explainable. Of these cases we shall take up first the two Bombay cases, of Nanalal v. Harlochand (1889) ILR 14 Bom. 476 and Vandravandas v. Cursondas ILR (1897) Bom. 646. In each of these cases, it would appear, the resulting trust arose on or because of the failure of the declared trust. Those resulting trusts, therefore, were of the first type, namely, type (1), as enumerated above, and would not thus attract Section 10 of the Limitation Act. Similar remarks apply to the case of our Court, in Khirodemonce v. Durgamoney ILR (1879) Cal. 455, and as to the other case, cited from the same volume, Greender Chunder Ghose v. Mackintosh ILR (1879) Cal. 897 it may at once be said that it is clearly distinguishable and has no possible application to the facts before us. This latter case of Greender Chunder Ghose v. Mackintosh ILR (1879) Cal. 897 hardly presents any difficulty as apart from the fact that the case was of an entirely different charater from the present, the trust there was clearly one to which Section 10 would not apply. Quite plainly, the case was one of an implied or constructive trust which could not possibly be brought within the description of a trust for a specific purpose as required by Section 10 and it was best described as was apparently done by the learned Judges (Garth, C.J. and White, J.) who decided the appeal, as a "general" trust as opposed to "specific". In other case also, namely, in Khirodamonee''s case (Supra), although the trust set up was a resulting trust it clearly arose on the failure of the declared trust, thus definitely falling under type (1) mentioned above. The case, in Mathuradas v. Vandravandas (Supra) also falls outside Section 10 of the Limitation Act as there, too, the resulting trust arose on the failure of the declared trust and it appears further that it could not be predicated at the time of declaration of the primary or the original trust or from the trust instrument itself that a residue would be left of the trust property after the complete execution of the said original trust, so that, in any view of the case, the resulting trust was clearly one, falling either within type (1) or type 2(b) mentioned above, and thus excluded from the benefit of Section 10 of the Limitation Act. Substantially similar, again, is the position in Bibhu Bhusan and Ors. v. Amar Nath and Ors. ILR (1931) Cal. 119, where also the declared trust might have exhausted the entire trust property, the case thus legitimately falling within type 2(b). It also appears that in that case their Lordships expressly relied upon Khaw Sim''s case (Supra) and Balwant''s case ILR (1884) All. 1 (P.C.), as there explained. It is, therefore, difficult to hold that Bibhu Bhusan''s case ILR (1931) Cal. 119 laid down anything contrary to the view we have taken above of the scope and applicability of Section 10 of the Limitation Act. It may be pointed out further that, having regard to the ultimate finding in the Bibhu Bhusan''s case that the suit was not time-barred, the observations of their Lordships on Section 10 of the Limitation Act were really in the nature of obiter dicta. In Rani Chhatra Kumari Devi v. Prince Mohan Bikram Shah (Supra) there was. strictly speaking, no question of any resulting trust-far less a resulting trust of type 2(a), as set out above. There an implied trust was sought to be raised in the course of argument but, even conceding that it had some resemblance to a resulting trust it could not be carried further than type (1) and could not, therefore, attract Section 10 of the Limitation Act. The trust, set up in Rani Chhatra Kumari''s case (Supra) was clearly in negation of the wills under which the properties had become vested in the so-called trustee and in rejecting the attempted argument u/s 10, in that case their Lordships of the Judicial Committee expressed themselves as follows:
It is clear that such a trust as is relied upon in the present case would not fall within Section 10 of the Limitation Act as it would be impossible to hold that the properties which vested in the Appellant under the terms of the Wills which have been proved were so vested for the specific purposes of making them over to the Respondent (vide pp. 297-8 of the Report).
It is also important to note in this connection that, in making the above observation, their Lordships, in the clearest possible terms referred to and relied upon Khaw Sim''s case (Supra) (vide, the reference immediately following at page 298 of 58 I.A.) where the applicability of Section 10 to resulting trusts of type 2(a) was clearly recognised. We do not think, therefore, that Chhatra Kumari''s case (Supra) enunciates any proposition contrary to our view of Section 10 of the Limitation Act or excludes its application to the present case. There remains now only the case of Balwant Rao v. Puran Mal (Supra). That case also as explained in Khaw Sim''s case (Supra), is hardly of any assistance to the Appellants. We have already held that the Government Defendants who are the Appellants before us are trustees for the Plaintiff Nawab in respect of the suit properties and are holding the same in trust for him. That trust is denied by the trustee Appellants and the Plaintiff cestui que trust is, in substance, seeking to enforce the trust and to recover the trust properties from the said trustees for the said trust, that is for the benefit of himself or the cestui que trust in full accordance with it. In this view of the matter the test laid down in Balwant''s case is clearly satisfied (vide Khaw Sim''s case at p. 43) and the case cited does not disentitle the Plaintiff to the benefits of Section 10 of the Limitation Act.
In the course of argument a passing reference was also made to the three cases in Mohammad Habibulla Khan v. Safdar Hussain Khan ILR (1884) All. 25; Biswambar Haldar v. Giribala Dasi (1920) 32 C.L.J. 25 and Chirinbai Dinshaw Chokai v. Navraji Pestonji Vakil AIR [1936] (Bom.) 30 and we shall just deal with them as briefly as possible. In the Allahabad case there was, strictly speaking, no resulting trust, at any rate no trust of type 2(a), and, further unlike the suit in the present case, the suit there was not one contemplated by Section 10 of the Limitation Act. [Vide Khaw Sim''s case (Supra) at p. 43 where the test on this point was laid down in the light of the Balwant''s case]. The other two cases cited have also little resemblance to the present and they are certainly not cases of trusts "for specific purpose". In the Bombay case the resulting trust was of type (1) and the Calcutta case was really of an implied or constructive trust and not certainly a resulting trust of type 2(a). None of the above decisions, therefore, can be treated as any authority in favour of the Appellants on their plea of limitation.
We believe we have dealt with all the cases, cited before us. At the beginning they held a bewildering outlook and to wade through this weltering mass of authorities appeared to us to be no easy task. The process, indeed, was not smooth but, once we had succeeded in negotiating the long and winding course of the several decisions, cited before us, and reached the end of the laborious course of examining them closely and in their proper perspective, the overall picture did not seem to be at all obscure. Placing the diffedent cases in their appropriate categories, the law appeared clear that Section 10 of the Limitation Act did include cases of resulting trusts which resulted not upon or from the failure of the declared trust or trusts but because of the complete execution of the same without exhausting the trust property the declared trust or trusts being such as could not by themselves, under any conceivable circumstances, have exhausted the whole of the trust property. Those cases where Section 10 was held inapplicable to resulting trusts were, as already shown, either cases where such trusts arose on the failure of the declared trust or cases where the declared trust or trusts might have exhausted the entire trust property. To such resulting trusts Section 10, as we have held above, is not attracted and the decisions cited by the Appellants barring Balwant''s case (Supra) are only authorities in that behalf In that case the suit was, unlike the present, outside the section and hence that decision, too, is no authority against the Plaintiff-Respondent. Further, as we have already shown, the test laid down there is fully satisfied in the present case.
It only remains to add that in some of the decided cases [vide, e.g., Lalubhoi''s case (Supra) and Vandravandas v. Cursondas (Supra) at p. 664 of the report] resulting trusts to which, according to the tests, laid down in the preceding paragraph, Section 10 of the Limitation Act would apply, have apparently been called "express "trusts" following the English practice. The use of the term "express" in this connection may not be quite happy or quite accurate but such use has the sanction of Salter''s case (Supra) which is still the authority on this branch of the law in England and has been adopted by the Judicial Committee for this country too in Khaw Sim''s case (Supra). And this much, at least, is perfectly clear that if such a resulting trust can be legitimately called an "express trust" there is much greater logic in calling it a trust for a specific purpose.
It seems to us from what has gone before, that an principle and in the light of the ruling authorities, two broad tests have to be satisfied to attract Section 10 of the Indian Limitation Act. There must be (i) a trust for a specific purpose and (ii) the suit must be for restoring the trust property to that trust. Neither of these tests is satisfied in the case of resulting trusts of type (1) or type 2(b). In neither the resulting trust, as already explained, is a trust for a specific purpose within the meaning of the section and the suit, therefore, cannot be for restoring the property to such a trust-in the former the property would be sought to be restored to an altogether different trust and in the latter, too, the position in this respect would be substantially similar. When, however, the resulting trust is of type 2(a) it is a trust for a specific purpose as contemplated by Section 10 of the Indian Limitation Act and the suit would be for restoration of the property to that trust. Both the tests are, therefore, satisfied. The present case clearly comes under this type. Obviously, therefore, Section 10 of the Indian Limitation Act applies to the suit before us and saves it from the bar of time. The Appellants'' plea of limitation is, accordingly, overruled.
It was next urged on the Appellants'' behalf that, whatever might have been the character of the Nizamat Deposit Fund or the securities in suit which admittedly came out of the same, the Fund was, as a matter of fact, abolished and the securities resumed by the Government and such abolition and resumption having been made in the exercise of the sovereign power of the State or by what are usually known as Acts of State, no claim in respect of either the Fund or the securities can be entertained by the municipal Courts of this country and as such the present suit must fail in limine. The whole foundation of this argument is the assertion that the alleged abolition of the Fund and the alleged resumption of the securities were made in the exercise of the sovereign power of the State, that is, by Acts of State, and that, by such exercise of sovereign power or Acts of State, private rights, if any, in the disputed G.P. Notes have been extinguished. It appears, however, that no such case was pleaded, not certainly specifically pleaded, in the written defence or put in issue or in evidence or even argued before the trial Court and, as it seemed to us that this contention was not one of pure law, we were not, in the circumstances of this case, so much inclined to entertain this plea in bar for the first time at this appellate stage and we would have ruled it out on that ground. Having regard, however, to the far-reaching character of this plea we have examined the materials on which it was sought to be founded but, in out opinion, the whole of this plea that is, in relation to the alleged abolition as well, based on the "Act of State" theory, is not relevant or necessary to be examined for the purpose of this case and to the extent that it is relevant or requires consideration it is plainly unsustainable and cannot prevail in the facts before us. In an earlier part of this judgment we have left open the question whether the Government held the Nizamat Deposit Fund as a trustee for the Nawab Nazim and his heirs. The character of the act of abolition of the Fund depends in a large measure upon the character in which the Government held the said Fund. If the Government was a trustee in respect of it the plea of Act of State would prima facie, at least, be utterly inappropriate. If, therefore, we had felt or found that this part of the Appellants "Act of State" plea, that is, so far as it relates to the alleged abolition of the Nizamat Deposit Fund, was relevant and needed consideration for the purpose of this case, we would have been obliged to determine first the Government''s status in regard to the same, or, in other words, to answer the question which we have expressly left open. We feel, however, that the character of the act of abolition is not relevant for the purpose of this case and that question may safely be left unanswered. The alleged abolition took place, on the materials produced by the Appellants sometime in the year 1881 (vide, ex. C), that is, long after the disputed investments in the suit securities had been made. The abolition of the Fund at that stage could not, therefore, affect the said securities or any rights in respect of the same. The amounts, invested in the suit securities, had been taken out of and had thus become separated from the said Fund and had ceased to form part of it long before the alleged abolition. They had become, as already found by us, the subject matter of a separate trust, of which the Nawab was the settlor, the Government was the trustee and the Nawab''s seven daughters were the beneficiaries or the cestui que trust. We have also found that the Nizamat Deposit Fund was the Nawab''s private property and the invested amounts, or the monies with which the G.P. Notes in suit were acquired, were his personal funds, settled in trust for the benefit of the said seven ladies during their respective lives with an ultimate resulting trust in favour of the settlor Nawab or his legal representative. This settlement had been made in 1873. In 1881, therefore, when the alleged abolition was made, the invested funds or the monies, to which reference has been made above, had absolutely no connection with the Nizamat Deposit Fund and the alleged abolition could thus have no effect upon the same and could not have affected them in the least.
It further appears that, in the said year 1881, all the original beneficiaries, namely, the seven daughters of the Nawab Nazim were alive, the earliest death amongst them occurring in 1884. Even assuming, therefore, that, in the first instance, upon the fulfilment of the primary or the original trust the reversion would have been as found by the learned Subordinate Judge, to the Nizamat Deposit Fund, none of the ladies having died before the alleged abolition, such reversion, that is, to the Fund, became impossible and the trust money became liable to revert to the settlor Nawab or his heir or legal representative.
It also appears that the resolution, as contained in Ex. C, refers only to securities "amounting to over 21 lakhs" and directs the appropriation or resumption of the same. It will be presently seen, however, that the suit securities were never resumed or appropriated. That is a strong indication that the suit securities were not covered or dealt with by the above resolution nor were they included within the securities "amounting to over 21 lakhs", mentioned therein. The later Report (ex. B9), dated February 15, 1882, also sufficiently confirmed this in para. 20 thereof which speaks of the suit securities as "formerly held in trust by the Agent to the Governor-"General, now held by Comptroller-General". The alleged abolition of the Nizamat Deposit Fund, therefore, could not affect the suit securities, as clearly enough, they were outside the relevant resolution (ex. C).
In the above view of the matter the alleged abolition of the Nizamat Deposit Fund could have no effect so far as the said invested amounts were concerned and cannot affect the suit securities as claimed by the Appellants.
We are thus left only with the alleged resumptions. These, according to the Appellants, were made upon the respective deaths of the several grantees, namely, the seven daughters of the Nawab Nazim, which took place between 1884 and 1930. It is, however, quite clear, in view of our finding that the investments were from their inception held by the Government as trustees for the seven ladies and upon their deaths for the Nawab Nazim or his heir or legal representative, that the alleged resumptions of the suit securities were made by the Government when they were holding the same as trustees as aforesaid. The investments were made in or about 1873 and the earliest of the deaths took place in 1884. In between these two dates events had moved rapidly and the Nawab Nazim had completely relinquished his sovereignty in or about 1880 and had become a subject of the Government Defendants and the trust under exs. B4 and B7 and the connected documents, exs. B2 and B6, had been expressly acknowledged in ex. B9 in 1882. If, therefore, the Government resumed the suit securities from 1884 onwards, as alleged by the Appellants, such resumption was really appropriation by the executive of a subject''s properties and also by a trustee of the trust property as against the cestui que trust. In neither case would the resumption be justified in law and in neither case would also the plea at an "act of State" in justification of the resumption be available or appropriate. It is well-known that between the State and its subject there can be no "act of State" [vide Halsbury''s Laws of England, Hailsham Edition Vol. 1, p. 21 and Eshughbayi Eliko v. Government of Nigeria AIR [1931] (P.C.) 248]. It is also to be remembered that such a plea is uttterly inappropriate to override a trust of which the State is the trustee and one of its subjects the cestui que trust [vide, Mir Nasiruddin Ahmed Khan v. The Secretary of State AIR [1935] (Bom.) 439, 443, 445, 446]. The alleged resumption of the securities cannot, therefore, be justified as an "act of State" and its legality shielded from investigation by the municipal Courts. The propriety of the Government''s Act being thus open to examination and our finding being that the Government Defendants were mere trustees in respect of the suit securities for the seven ladies during their respective lives and, thereafter, for the Nawab Nazim or his heir or legal representative, the alleged resumption or appropriation of the same in derogation of the said trust is wholly unjustifiable. In such circumstances, and there being no dispute that the ladies and the Nawab Nazim are all dead and the Plaintiff is now the latter''s sole heir and legal representative, the plea of resumption of the securities is utterly unsuited to defeat the present suit and that plea must, therefore, fail.
We may add also that, on the materials before us, there is considerable doubt as to the truth or correctness of this plea of resumption. We may even go further and hold that, upon the materials on record, that plea stands wholly discredited and definitely disproved. The relevant allegation is that, on the death of each of the seven daughters of the Nawab Nazim, the respective securities were resumed. Actually, however, we find that, at least, in the case of Nawab Khairannessa Begum, one of the said seven ladies, the securities were in existence late in the year 1929, at least several months after her death, held exactly as before by the Government as trustee and even made available to her estate-her creditor and her heir, in October, 1929 (vide exs. 2, 3 and 4) and it does not appear also that the existence of the other suit securities even at the date of institution of this suit was ever seriously disputed. The Appellants'' plea of resumption of the securities and their argument, founded thereon, must, therefore, fail.
Accordingly, the present appeal cannot succeed on the theory of "act" of State in relation to either the alleged abolition of the Nizamat Deposit Fund or the alleged resumption of the suit securities.
It was also contended before us that the present suit was not maintainable in law as it depended mainly, if not entirely, upon interpretation of treaties between two sovereign authorities, viz., the Nawab Nazim on the one hand and the East India Company on the other. It appears, however, that this argument, too, was never broached at any stage before the hearing in this Court. Not even the faintest indication of this plea is to be found either in the pleadings or evidence or in the arguments before the trial Court nor is this plea or the slightest trace of it discernible anywhere in the grounds, taken in the memorandum of appeal filed in this Court. In this state of things we could find little justification for allowing the Appellants to urge this plea almost at the last stage in support of their appeal but, even apart from that, we were hardly satisfied that the plea was otherwise acceptable. Treaties which come within the prohibition of Article 363 of the Constitution, on which the Appellants relied for the purpose of this argument, are continuing or living treaties. They do not include past or dead treaties, like those, put forward in the present Case, which have really ceased to operate as treaties as such and have even been replaced by private arrangements. This is sufficiently clear from the express language of Article 363 itself. The Nawab Nazim is no more, his sovereignty is gone and the paramountcy of his treaties has long disappeared. After the Indenture (ex. D) of 1880 the Nawab Nazim definitely ceased to be a sovereign power and his treaties lost their original character. He became as much a subject of the Government of India as any other private person, owing allegiance to it and his treaties can hardly be brought within the Article of the Constitution, relied on by the Appellants. To these dead treaties that Article cannot obviously apply. Even granting, therefore, that the disputes in the present case would have been beyond the cognizance of the municipal Courts if the treaties in question had been living treaties, the position being clearly otherwise, that bar would not apply and the jurisdiction of the Court in regard to the present suit would not be ousted. It seems to us further that the bar would apply only when the suit is based on the treaty obligations, that is, for enforcement of rights created by the treaties, and not otherwise, and the instant case, not being of that character, would not fall within its mischief. The rights, claimed in the present suit, do not arise out of any treaty. They arise out of a transaction of an altogether different character and the Appellants'' plea in bar, founded on the law of treaties, is here wholly irrelevant. Even if it be assumed that those rights are not wholly independent of the treaties, the connection would be too remote to sustain the Appellants'' plea. [Vide, in this connection Mir Nasiruddin''s case (Supra) at p. 443.] The contention of the Appellants, therefore, that the present suit was not maintainable and the Courts had no jurisdiction to entertain or decide it must, necessarily, fail.
On similar reasonings the Appellants'' remaining argument on this part of the case also fails. That argument was made on the footing that the creation of the marriage endowments in favour of the Nawab Nazim''s daughters under ex. B4 was an Act of State and so the rights thereunder or the disputes, relating thereto, were not justiciable in Courts. This plea again was not taken either at any stage before the trial Court or even in the memorandum of appeal, filed in this Court. It was raised for the first time in arguments before us. In such circumstances and having regard to the nature of the plea which seems to involve also questions of fact we do not think that it would be proper to entertain it at this late stage. We would also add that the creation of the marriage endowments in question does not appear to us to be an Act of State or as something done in the exercise of sovereign power either by the Nawab Nazim or by the Company or referable to such exercise. In this view, too, this argument of the Appellants must be rejected.
In his concluding or final argument the learned Senior Government Pleader laid great stress on exs. D and E, namely, the Indenture of 1880 and the Murshidabad Act, incorporating the other Indenture of 1891, and it was strongly pressed before us that, after the said two documents, the Nawab could claim nothing in regard to either the Nizamat Deposit Fund or the suit securities. Prima facie, there appears to be some force in this contention, but, when the matter is examined closely in the light of legal principles, the argument weakens considerably and ultimately fades away. It is perfectly clear from exs. D and E that, at the date of either of the said two documents, no dispute, so far, at least as the suit securities were concerned, had arisen or were under consideration or contemplation. The disputes, then pending, referred only to claims for arrear stipends, advances and certain jewels, etc., as mentioned in para. 7 of ex. D and detailed in the middle part of the recital portion of the Indenture of 1891, incorporated in the Murshidabad Act (ex. E). They did not certainly include the present claim in dispute, regarding the suit, securities and this claim or the present dispute does not appear to have been in the minds of the parties at the dates of the said two documents. In spite, therefore, of the wide terms in which the Nawab purported to relinquish his claims and the very general words or broad language in which that relinquishment was couched in exs. D and E, those documents would not affect the Nawab''s present claim in view of the pronouncement of the Supreme Court in the case of Chinnathayi alias Veeralakshmi Vs. Kulasekara Pandiya Naicker and Another, , which explained and applied to this country the principle of law, laid down by the House of Lords in the case of The Directors of the L. and S.W. Ry. Co. v. Richard Doddridge Blackmore (1870) L.R. 4 H.L. 610, in the matter of construction of releases or relinquishment deeds. The rule, there stated, was that the general words in the operative part would be controlled by the recitals. That rule is also to be found and its soundness plainly recognised in the well-known text books on the subject, namely, Pollock on Contract (p. 413) and Norton on Deeds (pp. 128-9, 208-9 and 305) and also in Halsbury''s Laws of England (Hailsham Edition), Volume 7, p. 251, Paragraph 345. In our opinion, the principle of that rule applies to the documents (exs. D and E) before us and we bold, accordingly, that the said exs. D and E do not bar the Plaintiff''s present claim. The Appellants'' argument to the contrary, therefore, fails.
In regard to exs. D and E a further argument was made that their interpretation is not for the municipal Courts and disputes, relating thereto, were not justiciable in these Courts. The basis of this argument was again Article 363 of the Constitution ousting the Court''s jurisdiction in matters relating to treaties or Acts of State. Here also the same reasonings which we applied to reject the similar arguments concerning the other alleged treaties or Acts of State are attracted. Apart from being a new point, urged only at the hearing of this appeal, it is also intrinsically unsound. Neither of the two documents (exs. D and E) was brought before the Court as a treaty or as representing an Act of State. It is clear also that the Act or the Indenture of the year 1891 can hardly be regarded either as a treaty or as an Act of State ousting the jurisdiction of the Court in the matter of its interpretation. The Nawab had by then altogether lost his sovereignty and had become a subject of the Government of India. It was, therefore, a private Act and the Indenture represented nothing beyond a private transaction between the State and one of its subjects, or, more correctly, the Executive Government and the subject, and it was thus neither a treaty nor an Act of State. As to ex. E, there is considerable doubt as to whether it is a treaty at all when by it the Nawab Nazim relinquished his sovereignty altogether and became a subject of the Government of India, at any rate, it is not a living treaty which would attract Article 363 of the Constitution as a bar to the present suit or to its consideration by the municipal Courts. The Act of State theory also would not be applicable as, in obtaining rights under it and in relinquishing his claim to his personal properties, the Nawab really acted as a subject, that is, on the footing of total relinquishment of his sovereignty and not strictly as a sovereign authority and the Government of India, too, in conferring those rights and in obtaining the relinquishment of the Nawab''s claims to his personal properties treated him as no more than one of its subjects. In the above view of the matter, we reject also this argument, made in support of the present appeal.
Before we come back to the first point of which we have reserved consideration till the last stage for reasons, already given, we have to dispose of three other matters, two raised by Mr. Ali, the learned advocate, appearing for the State of East Pakistan, and the other, relating to the question of receiving additional evidence in this appeal. On behalf of the East Pakistan Government Mr. Ali, while supporting the other Appellants on all the points, urged by them in support of this appeal, contended that the liabilities, if any, in regard to the Plaintiff''s claim were the liabilities of either the Dominion of India or the State of West Bengal and he referred us in particular to Articles 3, 8, 9 and 12 of the Indian Independence (Right, Property and Liabilities) Order of 1947. Mr. Ali also contended that, in any event, his client (the Government of East Pakistan) should not be made liable for costs of this appeal. Both these contentions raise questions of dispute between the Appellants inter se but while the first may require some consideration in view of the complex nature of the adjustments of rights and liabilities of the two new Dominions of India and Pakistan, made by the various transitional provisions at the time of Partition, the second, namely, that relating to costs, has absolutely no merit and no substance. The State of East Pakistan has entered appearance in this appeal as one of the Appellants and has pressed the appeal to defeat the Plaintiff''s claim along with and as much as the other Appellants, and it is, therefore, hardly open to it to urge that, if the appeal fails and is dismissed with costs, such costs should be ordered to be borne wholly by the other Appellants and no part thereof should be thrown upon it. We are unable to find any reason or logic behind such a plea and we reject it without the least hesitation. As to the other plea of Mr. Ali, the position may not be so untenable, but, as, in our opinion, that question as between the Appellants inter se need not be decided in this appeal but may and ought, in the circumstances of this case, be left over for consideration on a more appropriate occasion in future, we pronounce no opinion on the merits of that question but leave it open between the parties.
The point of additional evidence also need not detain us long. A large number of documents in the shape of official correspondence etc. are now sought to be introduced in the case at this appellate state. We are not satisfied that, in spite of due diligence on the Appellants'' part, these materials could not be produced before the trial Court nor do we feel that the reception of these documents at this stage can be justified here by the principle of the appellate Court''s requirement or necessity to enable it to pronounce judgment in the case. The State certainly cannot ask for nor can it be granted any greater indulgence in the matter than a private litigant and in the face of the Privy Council decisions, reported in Kessowji Issur v. G.I.P. Ry. Co. (1907) L.R. 34 IndAp 115; (1931) L.R. 58 I.A. 254 (Privy Council) ; Sir Muhammad Akbar Khan v. Mst. Motai (1947) 52 C.W.N. 132 P.C. and the pronouncement of the Supreme Court in the case of Arjun Singh alias Puran Vs. Kartar Singh and others, , we have little hesitation in rejecting the Appellants'' prayer for additional evidence in this appeal. The application made in that behalf, and the submissions, made in support thereof, are, accordingly, rejected.
We have come now practically to the end of our judgment. There remains for discussion only the question under the proviso to Section 42 of the Specific Relief Act which was raised by the Appellants in this appeal at the very outset as a bar to the Plaintiff''s present suit. The suit is purely declaratory, the only prayer made being for a declaration of the Plaintiff''s right to the G.P. Notes in suit and the accumulated interest thereof, there being, of course, the usual prayer for costs also, which, however, is not material for our present purpose. The Appellants have strongly urged that the Plaintiff, on the case, made by him in his plaint, was entitled to further relief and, he having omitted to pray for the same, the suit is hit by the proviso to the above Section 42 of the Specific Relief Act and is, accordingly, liable to dismissal.
In our opinion, the Appellants objection u/s 42 of the Specific Relief Act ought to succeed but only in part. Whenever in a suit where there is a prayer for some declaration within the main part of Section 42, referred to above, the bar under its proviso is pleaded by the defence, two questions generally arise for consideration, namely, (1) whether the Plaintiff is entitled to seek further relief and has omitted to do so and (2) what ought to be the effect of such omission, if the Plaintiff is found guilty of the same. If the first question is answered in the negative no occasion obviously arises for any consideration of the second. If, however, the answer to the first be in the affirmative, the Plaintiff cannot certainly get the declaration in view of the express terms of the proviso, but does it necessarily lead to a straightway dismissal of the suit? The statute does not so prescribe and judicial decisions also point to no such conclusion. There being no compelling provision in the matter, it has always been treated as one within the Court''s discretion, closely associated with and akin to its power to allow an amendment of the plaint in a proper case. That discretion must doubtless be exercised judicially with particular reference to the circumstances of the instant case before the Court, but, as the defect is removable by an appropriate amendment of the plaint, including the necessary further relief, if a case exists for permitting such an amendment in the exercise of the Court''s discretionary power and such power is undoubtedly wide, in accordance with the well-known principles long established in that behalf, opportunity should be given to the Plaintiff to avoid a dismissal of his suit.
Looking at the present plaint, it seems to us clear that the Plaintiff is able-and, indeed, bound-to seek further relief in the shape of recovery of the suit securities and the accumulated interest, that is, delivery of the particular G.P. Notes and payment of the interest unto him. A prayer in that behalf seems to be appropriate and necessary to give complete and effective relief to the Plaintiff and, as we are unable to accept Mr. Gupta''s argument to the contrary, which we shall presently examine, we are bound to hold that the Plaintiff''s suit in its present form is not maintainable. What will be the effect of this finding in the facts and circumstances of this case we shall examine in a later paragraph but, before taking up that question, we ought to indicate briefly Mr. Gupta''s argument which we have chosen not to accept and also our reasons for such non-acceptance.
Mr. Gupta has argued that, in view of the decision of the Judicial Committee in the case of 3 CWN 161 (Privy Council) , and the decision of this Court, in Chowdhury Mohammad Monzural Huq and Ors. v. Sebait Bisseswar Banerji ILR [1944] 1 (Cal.) 644 : (1943) 47 C.W.N. 408 the present suit, though purely declaratory, would not be barred u/s 42 of the Specific Relief Act. Broadly put, his submission is that, as the suit properties are admittedly in the custody of the Government, a declaration of the Plaintiff''s right thereto would be enough and no further or consequential relief would be necessary, and, consequently, the proviso to the said section would not apply. In our opinion, this argument, though prima facie attractive, is not well-founded. In the cases cited, the Government was just a mere stake-holder and really in the position of a pro forma Defendant and that was why any relief beyond a declaration of the Plaintiff''s title in its presence was held to be unnecessary. In the present case, the Government is undoubtedly amongst the principal Defendants and the Plaintiff''s claim of title to the suit properties is directed against it as much as against any other Defendant or Defendants. Indeed, that claim is being seriously contested by the Government and practically speaking, almost all the major issues have been raised by the Government Defendants, even by setting up a plea of limitation, and, what is more, an adverse claim of title on its own behalf. If, in such a case a purely declaratory suit is held maintainable, an unwarranted exception will have to be read into the proviso to Section 42 of the Specific Relief, practically exempting suits against Government from this statutory law. We can find little justification for such a course and nowhere is there any sanction for such a discrimination against the Government. We, accordingly, reject Mr. Gupta''s argument on this part of the case.
On our above finding, the present suit at once comes under the proviso to Section 42 of the Specific Relief Act and the question immediately arises, in view of the principles we have stated above, whether the Plaintiff should be allowed an opportunity to amend the plaint to take his suit out of the mischief of the said proviso. Generally speaking, such opportunity is not usually given where the Plaintiff persists with his suit in the purely declaratory form in spite of the Defendants'' objection, but the circumstances of this case are rather exceptional, and, in our opinion, a straightway dismissal of the present suit for non compliance with the statutory proviso, referred to above, would not be justified. We would, accordingly, allow the Plaintiff to amend his plaint in an appropriate manner to comply with the requirements of that proviso, and, for that purpose, the case will go back to the learned Subordinate Judge who will deal with the application for amendment in accordance with law in the light of the directions, contained in this judgment, and the observations made herein. This order, however, must be on terms and the Plaintiff will have to pay the Government Defendants, whose objection now succeeds in part, irrespective of the final result of the suit, the costs, incurred up till this stage, which we assess at 30 G. Ms. plus the amount spent by the said Defendants for preparation of the paper books of these two appeals (F.A. Nos. 41 and 42 of 1946). The payment of these costs within a time to be fixed by the learned Subordinate Judge will be a condition precedent to the entertainment of any application for amendment which the Plaintiff may now file in the trial Court within such time as may be given to him for the purpose by that Court. If the costs are not paid or the application for amendment not made, as directed above, the suit will stand dismissed with costs against the Government Defendants and without costs against the rest. Upon the costs being duly paid and the application made, as directed above, for amendment of the plaint, the learned Subordinate Judge will consider the said application and deal with it in accordance with law in the light of the observations we have made above. No other question-save, of course, what will arise on the application for amendment (including the question of additional Court-fee, if any, on the plaint)-will be open for discussion before the learned Judge. The suit will then be finally disposed of by him in accordance with law in the light of our findings, made above, and the costs of the suit will abide the final result.
In the Government Appeal (F.A. No. 42 of 1946) there is a cross-objection, filed by Respondent No. 3 Chuchki Begum, who was made Defendant No. 4 in the suit as the heir to her mother Hedyyatunnessa alias Hossaini Begum, one of the late Nawab Nazim''s seven daughters in whose names the suit securities originally stood. The cross-objection, however, was really directed only against the Plaintiff Nawab who was also a Respondent in the said appeal. It is at least open to doubt whether such a cross-objection is maintainable in law, but, as we are remanding the suit for final disposal by the trial Court in accordance with the directions, given above, and as, on our findings, already made in this case, no higher relief is obtainable on this cross objection even if it is maintainable in law, we do not consider it necessary to examine the question of its maintainability. The cross-objection will be allowed only to this extent that the same order of remand which we are making in the connected appeal (F.A. No. 42 of 1946) will also govern it.
F.A.''s Nos. 41 and 42 of 1946 (with cross-objection).
Both the above appeals and the cross-objection thus succeed in part, the decree of the learned Subordinate Judge is set aside and the case is sent back to him to be dealt with in the manner indicated above, and to be finally disposed of by him in the light of this judgment. There will be no order for costs in either the appeals or the cross-objection except what has been made by us in favour of the Government-Defendants in connection with the order of remand, as appearing above.
Chunder, J.
I wholly favour with the very full and extremely well-considered decision of my learned brother.