Bibi Umatul Rasul and Another vs Nageshwar Bux Rai and Others

Ross, J.—This was a suit by Babu Nageswar Bux Rai of Bisrampur for the resumption of mauza Nimia, Tappa Taria within his zamindari which was given in settlement as a service jagir by his ancestor to the ancestor of Syed Kazi Hamid Basul, the husband of defendant.

The case for the plaintiff was that under the terms of the settlement and according to the custom and usage of Chota Nagpur such jagirs are resumable on the failure male issue or on discontinuance of service. Hamid Rasul died on the 16th September 1913, leaving no male issue and the defendants are his widows and sisters and daughters. The defence was that whatever might have been the origin of the defendants'' title they, and before them Kazi Hamid Bisul and his ancestors, had been holding the village free of any service whatsoever at a fixed quit-rent; that the jagir was not a service jagir limited to mala issue or resumable either by its terms or by custom. The learned Subordinate Judge found that the jagir was a jagir resumable on failure of male issue and gave the plaintiff a decree.

The argument on behalf of the defendants-appellants is that there is practically no evidence of the terms of the grant, no sanad being produced; and there is no evidence that the jagir was a tenure held for service of a nature personal to the grantor or his family; that the services which the learned Subordinate Judge has found to be rendered by the jagirdar are the registration of documents and performance of marriages between Mahomedans, and these are services of a public, and not of a private, character; and, consequently, the grantor is not entitled to resume. It is further argued that the khewat has been misconstrued and that the suit is barred by limitation.

The argument on limitation is that according to the evidence, Khoda Bux, one of the jagirdars, died about a hundred years ago leaving no issue and that the cause of action arose on his death. But there is nothing in this argument. There was no plea of limitation and no issue. The learned advocate for the appellants referred to a genealogical tree (Ex. A) in support of his argument that Khoda Bux left no issue. It would appear that on the death of Khoda Bux (if indeed the person of that name who appears in the kursinama ever held the jagir) the property went to a collateral. But it is impossible to believe that this Khoda Bux who is of the same generation as Hamid Rasul died 100 years ago and if indeed the grant was made to one Khoda Bux, and he died 100 years ago, then it is almost certainly not the Khoda Bux of the kursinama. According to P.W. 1 in cross-examination Khoda Bux was grandfather or great grandfather of Hamid Rasul. Moreover it is not the case of the plaintiff that the tenure descends in tail male: it continues as long as there is a lineal male descendant of the original grantee in the mala line: and it is common ground that the last male holder Hamid Rasul was a lineal descendant of the original grantee.

The real question in the case is as to the nature of the grant. In the absence of the sand itself which is said to have been lost, the principal evidence is the khewat of Nimia (Ex. 7) which shows this jagir as resumable and states that the malik of khewat 1 has the right to resume after the family of Kazi Syed Khoda Bux becomes lawald. One principal controversy is as to the meaning of "lawald" whether it means "issueless" or "without male heirs." If the former is the meaning, then the plaintiff''s suit must fail. But it is pointed out on behalf of the respondents that according to the custom of Chota Nagpur "aulad" is interpreted to mean" male issue." A number of judgments have been, produced in this case(Exs. 3, 5 and 8 showing that in Palamau service jagirs are resumable on failure of male issue.

Three oases were cited in which the limited construction has been put on the words "al aulad" or similar words. Perkash Lal v. Rameshwar Nath Singh [1904] 31 Cal. 561, was a case of the Kunda Raj in Hazaribagh and there it was held that according to a custom proved to have prevailed at the time of the grant and subsequently in. the part of the country, the words "al aulad" mean lineal male descendants only. Iu Ram Narain Singh v. Ram Saran Lal AIR 1918 P.C. 203, the words were "putra poutradi." That was a case by the Ramgarh Raj in Hazaribagh and it was held by the Judicial Committee on the evidence that the jagir was resumable on failure of male heirs in the direct line of descent. In Bameswar Lal Bhagat v. Qirwar Prasad Singh [1918] 5 Pat. L.W. 316 a case relating to certain villages within the zamindari of the Raja of Palamau, it was accepted on both sides that grants by the Rajas at Palamau and elsewhere in Chota Nagpur were ordinarily resumable on failure of male lineal descendants: so in Brojo kishore Ram v. Jagat Mohan Nath Sahi Deo [1919] 5 Pat. L.J. 265, the local custom in Chota Nagpur was referred to by which the words "putra poutradi"'' mean descendants of the grantee in the male line. In Hunter''s Scatistical Account, Bengal, Vol. 16, p. 395, in dealing with the land tenures in Palamau, it is said that the Government could resume those jagirs in case of failure of lineal male heirs of the original grantee according to ancient custom. In Mitra''s Land-law of Bengal Second Edition at p, 527, the learned author in dealing with jagirs in the Ghota Nagpur says that

the is variable custom with regard to these jagirs is that these are resumable by the grantor on failure of male heirs of the body of tie grantee.

In the final report of the survey settlement operations in the District of Palamau in 1913�20 at p. 106, it is stated that the jagirs are resumable on failure of male heirs of the original grantee unless in any particular case it is other wise specifically mentioned in the sanad. In the Gazetteer of the District of Palamau at p. 156 among the jagirs are enumerated jagir kanungoand jagir kazi or grants made in virtue of the office of kanungo or kazi and is lieu of an official salary; and, at p. 158, it is stated that jagir tenures were originally granted for services which are for the most part no longer either demanded ''or performed. They are generally on fixed rent and heritable, but resumable on failure of male heirs.

There can, therefore, be no doubt about the general rule, and the entry in the record of rights must be construed as meaning that the jagir is resumable on failure of male heirs. Therefore, this entry is against the case of the appellants.

The learned advocate for the appellants, however, referred to the decision in Bajah Nilmoney Singh Deo v. Government 18 W.R. 321, where the Judicial Committee held that if the services to be rendered were of a public nature and not solely private or personal, the Raja could not resume the land. He also referred to the decision in Radha Pershad Singh v. Budhu Dashad [1895] 22 Cal. 938, where the distinction between a grant for ser vices of a public nature and for services of private or personal to the grantor was of referred to; and it-was observed that in the former case the zamindar is not entitled to resume, while in the latter case he may do so. That was a case of private services and a resumable tenure.

The case in Rajah Nilmoney Singh Deo v. Government 18 W.R. 321, was a case (as their Lordships point out) where the sanad had really emanated from the Government of India and purported to be granted by those who had power over the land at that time. That not the case here. It appears from filfe passage already quoted in the Gazetteer that jagir kazi is resumable. It must be taken that this was a jagir granted for services which were for the convenience of the tenants of the zamindar and were, therefore, truly of a private and not of a public nature.

The appeal must be dismissed with costs.

Kulwant Sahay, J.J.

I agree.