Harihar Prasad Singh and Another vs Maharaja Kesho Prasad Singh

Dawson-Miller, C.J.—The suit out of which this appeal arises was instituted on the 29th April 1917, by the respondent, the present Maharaja Bahadur of Dumraon, as plaintiff, claiming possession of an estate in Burma of considerable value and a house and garden in Dumraon in this province together with an account of the income and disbursements of the property and other subsidiary reliefs.

The defendants, who are the appellants in this appeal, are Rai Bahadur Harihar Prasad Singh, and his minor son Chandradeo Prakash Singh. The second defendant is added as he is joint in estate with his father but he took no active part in the circumstances out of which the suit arises, and in referring to the defendant or appellant in this judgment the first defendant alone will be indicated.

Shortly stated, the ground upon which the plaintiff''s claim to the Burma property is based is that it was trust property acquired and held by the defendant''s father Rai Bahadur Jai Prakash Lal as trustee for the Dumraon Raj of which he was the Diwan during the life-time of the late Maharaja Sir Radha Prasad Singh Bahadur and that the defendant, as his father''s legal representative, acquired the same in the capacity of trustee for the Raj on his father''s death in 1897. The plaintiff claims that he is entitled not only to possession of the property but to the profits arising therefrom since its acquisition in the year 1889. The property claimed in Dumraon consists of: (1) a dwelling house and outhouses described in schedule C of the plaint; and (2) a garden with certain buildings erected thereon unconnected with the house aforesaid, and described in Schedule D of the plaint.

With regard to the former it is alleged that the house and out-houses were constructed partly on khas land of the Dumraon estate and partly on pieces of adjoining land purchased from time to time by the Raj in the name of Jai Prakash Lal as a suitable residence for the Diwan, and that the same were constructed, repaired and maintained solely at the expense of the Raj. As to the garden with the buildings therein described in Schedule D, the allegation is that they were laid out and built on khas land of the Raj and adjoining pieces of land purchased by the Raj in the name of Jai Prakash Lal and that all the cost of erection and laying out and maintaining the buildings and garden were paid from the Raj treasury for the use of the Diwan and guests of the Raj. It is not now contended that Jai Prakash Lal was a trustee in respect of this property. Both the Burma estate and the Dumraon property have been in possession of the defendant since his father''s death in 1897.

Different considerations arise with regard to the Burma estate and the house property in Dumraon and these will have to be considered separately.

It will be convenient to deal first with the Burma estate. The main issues for determination with regard to this estate may be divided broadly into three heads:

(1) Was the property acquired by Jai Prakash for his own use or as trustee for the Raj; (2) Bid the plaintiff and the defendant compromise the claim to the Burma estate in the year 1914; and (3) is the plaintiff''s claim, if any, barred by limitation.

These are the main issues in the case but certain subsidiary issues have been framed arising therefrom. There are also further issues which raise the question of the plaintiff''s title to the Dumraon Raj itself and his right to sue for the properties in suit as well as the jurisdiction of the Court to entertain the claim for the property in Burma.

A vast amount of evidence, oral and documentary, was placed before the trial Court, some of it irrelevant, a larger portion having a very slight bearing upon the relevant facts in issue and some of it quite worthless, while the examination and cross-examination of some of the witnesses has been carried to inordinate lengths. The result of this has been materially to lengthen the trial and to increase the difficulties of the appellate Court by making it necessary to wade through a mass of unimportant detail in endeavouring to weigh the material evidence in the case.

The learned District Judge of Shahabad before whom the case came for trial arrived at the conclusion that the land was acquired by Jai Prakash Lal and vested in him as trustee for the Raj and that the defendant as his representative was bound by the trust and was precluded by Section 10 of the Limitation Act from pleading limitation. There is no direct evidence of the creation of a trust, nor indeed in the plaint is it alleged that the Burma property ever vested in Jai Prakash Lal. The allegations in paragraphs 8 and 9 of the plaint are to the effect that the Diwan was deputed by the late Maharaja to proceed to Burma and apply for and secure a lease of the land for the Raj using, if necessary, his own name as applicant for the lease; that so acting and using his own name he made the application which was granted and that the Dumraon Raj, thenceforth became the proprietor of the said land and entered into possession thereof through its servants. There was no direct allegation in the plaint that Jai Prakash Lal ever became a trustee of the property for the Raj, and the case now relied upon that the property was vested in him would appear to be negatived by that part of the plaint which I have referred to. The case as made would appear to be the ordinary case of a benami transaction in which the benamidar acquired no interest in the property. The case is, however, somewhat complicated by the fact that when the grant was eventually made in the year 1896 Maharaja Sir Radha Prasad Singh was dead, and Jai Prakash Lal was one of his executors under his will, a fact which is referred to in paragraph 12 of the plaint, which states that the lease was executed by the Government of Burma in the name of the said Rai Jai Prakash Lal Bahadur, who was then the executor and trustee under the said will and was then in charge of the Dumraon Raj.

The suggestion therein contained apparently is that Jai Prakash Lal at that date took the lease as executor and trustee of the late Maharaja. In the particulars ordered to be filed under paragraph 8 of the claim the plaintiff has further stated that Jai Prakash Lal was not only the agent and Diwan, but was on terms of trust and confidence with the Maharaja Radha Prasad who reposed the fullest confidence in him, and that in pursuance of the arrangement mentioned in this paragraph and the settlement mentioned in paragraph 9 of the plaint, Jai Prakash took the lease of the land in his own name as set out in paragraph 12. The particulars given under paragraph 9 of the plaint state that in pursuance of the arrangement mentioned in paragraph 8, Jai Prakash took possession for and on behalf of the Dumraon Raj and continued to be in such possession and that he kept a man of the name of Lalu Ram Pande in charge of the Burma property.

The fourth and fifth issues framed in the case before trial were as follows:

(4) Did Rai Bahadur Jai Prakash Lal act as agent, servant or trustee of Maharaja Sir Radha Prasad Singh Bahadur or of the Dumraon Raj in the matter of the acquisition of the said property and possession thereof?

(5) Did Bahadur Jai Prakash Lal acquire the property in his individual capacity? If so having regard to his position in, and connexion with, the Dumraon Raj are the defendants entitled to retain possession of it?

Notwithstanding the somewhat vague language in which the plaint is couched the questions whether Jai Prakash Lal was in fact a trustee for the Raj in the acquisition and possession of the Burma property and whether the defendant was entitled in such circumstances to plead limitation were fully dealt with before the learned Judge at the trial.

As already stated there is no direct evidence as to the creation of the trust, and the main question on this part of the case is whether the inferences drawn by the learned District Judge from the evidence are correct.

He further found that no settlement of the dispute between the plaintiff and the defendant as to the Burma property had been arrived at in 1914 as alleged by the defendant. On the other important issues in the case he also found in favour of the plaintiff. From this decision the defendants have appealed.

The story of the acquisition of the Burma estate, which 1 shall first deal with, begins in the year 1889 when Maharaja Sir Radha Prasad Singh Bahadur was the proprietor of the Dumraon Raj. His Diwan at that time was Rai Bahadur Jai Prakash Lal, the father of Rai Bahadur Harihar Prasad Singh, the present defendant and appellant. Jai Prakash Lal served the Dumraon Raj in one capacity or other since the year 1859, when as a young man of about 19 or 20 years of age he was appointed tutor to Radha Prasad Singh, then the heir to the Dumraon estate. By his ability and industry he had risen to a position of trust and responsibility in the Raj affairs and at the time when the story opens he was as Diwan, second only in importance to the Maharaja himself. He had also held important public offices. He had been Chairman of the Dumraon Municipality on more than one occasion and in 1884 he was appointed a member of the Bengal Legislative Council. It is on record that by his skilful management he had materially increased the revenue of the Raj and brought it from a position of financial embarrassment to one of great prosperity. He was also instrumental in carrying out works of public utility. His public services were recognized by the Government of India a few years later when in 1892 he was made a companion of the Order of the Indian Empire. His relations with the Maharaja appear to have been those one might expect to exist between a capable and faithful servant and a generous master. His services were recognized and rewarded by the Maharaja from time to time by grants of Mukarrari and ticca leases which added considerably to his income. It is important to bear these matters in mind as they appear to me to afford some guidance in determining the proper inferences to be drawn from the proved facts relating to the transactions which form the subject of enquiry in this case. There is nothing to suggest that in his dealings with the property acquired by him in Burma there was any attempt to conceal anything from the Maharaja, and indeed the evidence points, I think, conclusively in a contrary direction. It may not be out of place here to refer to the evidence of some of the witnesses who speak to his character and attainments.

Mr. Sharfuddin, a former Judge of the Calcutta and Patna High Courts, said the Maharaja had great faith in him. He was the directing hand in the affairs of the Raj. Mr. Skrine, the Collector of Shahabad, who knew both the Maharaja and Jai Prakash Lal intimately, says that he was the maker of the estate. The Maharaja very often expressed in conversation with him in his implicit confidence in the Diwan. He trusted him in everything. He further says he considered him one of the most able Indians he had ever met. He had an extraordinary knowledge of English and a great capacity for affairs and he was entirely devoted to the Raj. He also described the Maharaja, to use his own words, as "one of nature''s gentlemen." He says he was extremely ignorant but had a good deal of common-sense. He explains this later by saying that his ignorance was that of matters relating to literature, history and geography but he knew a good many things that Jai Prakash Lal did not know.

Pramotho Nath Chatterji, a retired officer of the Bengal Judicial Service who was Munsif of Buxar from 1890 to 1893, says the Maharaja had implicit confidence in his intelligence, ability and honesty and adds that the Maharaja was a shrewd nobleman and all important matters had to be done with his orders. The Maharaja himself in a speech attributed to him and delivered on the 26th October 1890, at what has been described as the Samad meeting, which will be referred to again later, described the Diwan as not merely a manager but higher than that, an institution with a tradition behind him, and in his will executed in 1890 the Maharaja appointed him co-executor together with the Maharani. The passage is worth quoting as it states not merely his opinion of the Diwan but also of the Maharani, a lady whose actions at a later period have a considerable bearing upon the questions now under discussion. He says:

I hereby appoint my wife Maharani Beni Prasad Kuer who, though a pardanashin Hindu lady, is to my knowledge possessed of great intelligence and capacity for business and who I consider is fully competent to maintain the position and dignity of my Raj and family to be executrix, and my Diwan, Raj Jai Prakash Lal Bahadur, who has during the last fifteen years very honestly and successfully managed my Raj and the estates belonging to me and by whose faithful exertions and cooperation I have been able to bring it to its present state of efficiency, executor of this my will.

He also directed the executor and the executrix to give his daughter in marriage to some suitable person if she should be unmarried at his death. The expression of his confidence and regard for his Diwan is a remarkable testimony to his integrity. The evidence also shows that the Maharaja and his Diwan were on terms of intimate personal friendship. The Diwan during the Maharaja''s illness had attended assiduously to his personal comforts, an incident to which the Maharaja bore warm testimony in his speech at the Samad meeting. This close friendship continued for 40 years and there is no suggestion that any incident ever occurred to mar the relations which existed between them.

It is true that Jai Prakash Lal owed much to the generosity of the Maharaja, but it is equally true that the Maharaja and his estate owed much to the efficiency, faithfulness and loyalty of the Diwan as the Maharaja also testified in the speech referred to. Such then were the relations existing between the two persons whose conduct we have to consider in determining the first and most important issue in this case. The evidence seems conclusive that the late Jai Prakash Lal was a man of integrity.

The Government of India have from time to time considered schemes for relieving the congested areas of Northern and Central India by emigration, and in the beginning of 1889 in furtherance of a scheme formulated in the previous year for the relief of the congested areas of Bihar, then part of Bengal, several of the leading zemindars and other influential persons were invited to interest themselves in the matter by taking grants of waste land in Burma on easy terms with a view to bringing them under cultivation and settling tenants thereon from the surplus population of this province. Previous schemes, and in particular one attempted in 1874 whereby some 7,000 emigrants from Bengal were settled in Burma holding direct from Government, had proved a failure.

On the present occasion, as appears from the report of Mr. Nolan (Ex. 714) and other sources, the scheme proposed was to make the grants to capitalists and zemindars willing to undertake the settlement of Indian raiyats who would hold under the grantee and not direct from Government. It was part of the scheme that the grants should be made only to approved applicants. Amongst other officials who were entrusted by the Government to further the objects of the scheme was Mr. Finucane, Director of the Department of Land Records and Agriculture in Bengal. Extracts from the official papers relating to the scheme were circulated by him at or about the beginning of 1889 to the following noblemen and gentlemen of Bihar, namely, the Maharajas of Darbhanga, Hathwa, Dumraon and Bettiah, the Secretary of the Bihar Indigo Planters'' Association, Rai Jai Prakash Lal Bahadur and Raja Rameshwar Singh of Darbhanga (the present proprietor of the Darbhanga Raj and brother of the then Maharaja).

Mr. Finucane was deputed to go to Burma taking with him the gentlemen who were approached, or their agents, for the purpose of viewing the land on the spot and forming an opinion whether it would be suitable for the purpose. It appears from the official correspondence and from Mr. Finucane''s report to the Government of Bengal, dated the 26th June 1889 (Ex. 723) after his return from Burma that these gentlemen had been requested to say whether they would be willing to accompany him to Burma or to depute agents in order to see the lands available to settlors and to ascertain on the spot whether it would be profitable for them to undertake the work of promoting emigration as a commercial speculation.

The response was not very encouraging. Jai Prakash Lal and Mr. Hudson, Secretary of the Bihar Indigo Planters'' Association, alone of those approached, accepted the invitation and in March 1889 they proceeded with Mr. Finucane on the expedition. Jai Prakash Lal took with him, as appears from Mr. Finucane''s letter to the Government of Bengal dated the 4th March 1889, (Ex. 716), some of his raiyats in order to see whether suitable land was available of which he might take settlement and bring it under cultivation. Mr. Walker of the firm of Gisborne & Co., of Calcutta, who were interested in indigo, was also a member of the party but did not apply for a grant.

In the previous year a grant of 30,000 acres had been made to Mn Mylne, an Indigo planter of Bihar, and this eventually turned out a profitable investment Jai Prakash Lal was also a personal friend of Mr. Finucane, who in all probability was acquainted with his financial position. Mr. Noyce, who was at the period in question an Assistant to the Deputy Commissioner of Rangoon engaged in the Revenue Department, and who met Mr. Finucane and Jai Prakash Lal in Burma in connection with the Government scheme, states that Mr. Finucane himself vouched for Jai Prakash Lal to the Government as a suitable applicant for a grant. He was probably in a position to know, but his information would appear to have been based rather on inference than from any direct knowledge. That Mr. Finucane, however, had contemplated Jai Prakash Lal as a prospective grantee and that he was approved of as such by the Government may be presumed from the fact that not only the Maharaja, his employer, but Jai Prakesh Lal himself had been requested to proceed to Burma, or send an agent, with a view to acquiring a grant.

None of the Diwans or Managers of the other Maharajas who were invited appear to have been approached personally at that time. The same inference may I think be drawn from other letters of Mr. Finucane, for example, on the 16th October, 1889, in writing to the Government of Bengal (Ex. Z 1956) in reference to a Government subsidy to the British India Steam Navigation Company to enable them to carry emigrants to Burma at reduced rates he says:

Any emigrants whom landholders such as Jai Prakash Lal, Messrs. Mylne and Thomson or others may wish to take to Burma would as a matter of course be carried at the reduced fares.

In a letter addressed by Mr. Finucane to the prospective grantees enclosing the official papers and dated the 11th February 1889 (Ex. 715) he says:

The Manager of Dumraon Raj, Raj Ja Prakash Lal has agreed to accompany me to Burma in March or April next taking with him some of his raiyats in order to see whether the lands available would be suitable for Biharis and whether it would be desirable for capitalists or others to take land in that province as a commercial speculation on the terms suggested in these papers. It seems obvious that with good land available in Burma and a redundant population in Bihar it ought to be financially a sound undertaking for gentlemen of means and influence in Bihar to acquire lands in Burma which must in the future be of great value. My object in now addressing you is to enquire whether you would be willing to send an agent to Burma with me with a few raiyats in the same way as Jai Prakash Lal proposed to do to see the country and land available for themselves with a view to your or their taking up any such land or causing it to be taken.

I have referred to this because a point was made on behalf of the respondent that Jai Prakash was not a person of sufficient affluence to merit the confidence of the Government to the extent of entrusting him with a grant in Burma on his own account, but that if he was merely an agent of the Maharaja the confidence reposed in him could easily be accounted for. I may say at once that throughout the transactions which subsequently took place whereby Jai Prakash applied for and obtained the grant of 15,000 acres in his own name, which is the subject of this suit, I have been unable to discover a scrap of evidence which points to the fact that the Government considered that they were dealing with him not as the real grantee but merely as the agent of the Maharaja. The learned District Judge states that there can be no doubt that the Government looked upon Jai Prakash as the representative of the Raj in this matter. I have looked in vain for any evidence which supports this finding. In two or three instances in the voluminous correspondence with the Government officials Jai Prakash Lal is described as the Diwan of the Dumraon Raj a title which he was generally given even in his own private correspondence. Otherwise I can find nothing which supports the learned Judge''s view. In Mr. Finucane''s report of the 26th June 1889 (Ex. 723), already referred to, and which sets out in detail what happened during his visit to Burma the following passages occur:

Rai Jai Prakash Lal Bahadur proposed to return to Rangoon (from Mandalay) by rail visiting en route the Toungoo, Pyinmana and Shegywin districts to the Deputy Commissioners of which Districts he had been furnished with letters of introduction. The result of his visit was that he applied for a grant of 15,000 acres in the Toungoo district and obtained it on terms somewhat similar to those on which land was granted to Messrs. Mylne and Thompson in the neighbouring district of Shegywin and he proposed to take a larger area of 50,000 acres in another district Pyinmana.

On our return to Rangoon Rai Jai Prakash Lal and I discussed with Messrs. Fryer and Hodgkinson the terms upon which grants of land might be made to Rai Jai Prakash Lal in the Toungoo and Pyinmana districts which he had visited. It was arranged that a grant be made to him in the Toungoo district in the terms specified in his application.

On the other hand, whilst speaking of another grant made to Chuni Lal, the report says:

Whilst we were in Burma the agent of Chuni Lal, a Banker from Chapra, applied for and obtained a grant of 15,000 acres in the Shegywin district.

The learned District Judge was impressed by the fact that Mr. Finucane, in his letter to the Government of Bengal, dated the 4th March 1889 (Ex. 716) says:

The most practicable way to test the feasibility of the suggestion contained in Mr. Nolan''s report would be to take some representatives of capitalists to Burma to show them the lands which may be available for settlers from Bihar and Bengal.

But it must be remembered that in the invitations sent not merely to the Maharaja but to Jai Prakash Lal the request was that they should either go themselves or send representatives and it cannot be presumed that Jai Prakash Lal went in a representative capacity. Whether he could aptly be described as a capitalist seems doubtful. What his available resources in cash were at that time is not proved. We only know that in the Raj Bank known as the kothi kalan there stood to his credit at the time of his death, some 8 years later in 1897, a sum of over 2� lakhs of rupees. We also knew from ledger account of kothi kalan for the years 1300 F. that his balance at the end of the previous year, (September 1892) was Rs. 1,66,000 (Ex. 1737 B). What his actual balance was in cash in the year 1889 there is nothing to show. The plaintiff has not produced the kothi kalan books for that period. I think it may be safely assumed that his available cash at that time was not inconsiderable. His yearly income from the mukarrari leases which he then held was about Rs. 10,000 to Rs. 12,000 and his salary as Diwan was at that time Rs. 1,500 a month, or Rs. 18,000 per annum. This appears from the parwana (Ex. Z 197) granting him ticca leases in lieu of Rs. 1,000 of his previous monthly salary. His annual income therefore may be taken in round figures at about Rs. 30,000 at that time. It increased shortly afterwards by the grant of ticca leases.

But although ho was not a capitalist he was in an excellent position for emigration of cultivators and labourers from Bihar. Moreover he was a man of considerable repute in Behar, and it is not a violent assumption to suppose that the Government might well be willing to avail themselves of the assistance of a man in his position to carry out the scheme of emigration. Although he was not a man of great affluence, he possessed at least the other qualifications necessary to promote the scheme and make it a success and his financial resources were by no means negligible.

Moreover, the terms upon which the grant was to be made required no large immediate outlay. The land was to be revenue free for 12 years after which the revenue was to be Rs. 1,000 increasing by two successive stages to Rs. 4,000 at the end of the 26th year, the maximum rate after the 33rd year being never more than 8 annas per acre and in one event less. The expense of clearing the land so as to make it cultivable and of settling tenants thereon were to be borne by the grantee. It is reasonable to suppose, however, that with proper management and when a sufficient number of tenants had been settled, the income from the estate would begin to meet the expense until finally as a commercial venture, it would be a profitable investment as it eventually turned out to be.

It appears from Mr. Nolan''s report that it would be sufficient to proceed on a small scale at first. Ho says the cost of clearing the jungle over an area of 15,000 acres and establishing a hamlet of 50 families thereon would be Rs. 8,000 including half the cost of buildings and clearing the holding and finding the tenant in stock. If the whole of this expense should be undertaken by the grantee another Rs. 6,250 should be added. His figures appear in his report at page 2694 of the record. After this expense should be incurred some return would be coming in from the rents of the tenants. It is probable therefore that the prospect was not such as to deter a capable manager even if his means were limited.

What the Maharaja''s attitude was with regard to the acquisition of land in Burma appears from the evidence of some of the witnesses who discussed the matter with him. This evidence, which I shall deal with later, goes to show that he was not inclined to burden himself with the responsibility of a commercial venture of this sort so far from home when he had over 5,00,000 acres of his own in the Dumraon Raj, much of it waste land upon which he could direct his energies. At the same time it is quite possible that he was ready and willing to assist the Government scheme without any hope of ultimate gain. This he could do in two ways, either by taking a grant himself or by contributing to the initial expenses of a venture undertaken by his Diwan.

I shall revert to this aspect of the case later when dealing with the evidence of the witnesses who speak about the Maharaja''s attitude. It would be more convenient at present to deal with the facts adduced in evidence relating to the acquisition of the Burma grant. Jai Prakash Lal having agreed to accompany Mr. Finucane went from Dumraon to Calcutta, on two or three occasions between the end of January and the middle of March, 1889 and was in communication with the Government officials. The Maharaja himself was also in Calcutta during a part of this period. In fact, on the 1st March, he was invested with the insignia of a Knight Commander of the Indian Empire and on the 13th March, both he and the Diwan returned from Calcutta to Dumraon. On the following day the Diwan again left for Calcutta, and on the 16th accompanied by Mr. Finucane and the rest of the party they embarked at Calcutta for Rangoon.

It appears that Jai Prakash had with him a sum of Rs. 2,400 which he had taken from his private account with the Raj ban for the purposes of the journey some days earlier. A sum of Rs. 1,000 was also drawn from the Raj treasury in the name of Bhawani Singh and this money was apparently at the disposal of the Diwan. Seven persons, most of them Raj servants, accompanied Jai Prakash Lal from Dumraon on the expedition.

In addition to two tenants of his own there were Ganga Sahai Misser, a Government servant in charge of the Raj experimental farm, Munshi Debi Prasad, a senior officer of the Raj, second in command to the Diwan, Lalu Ram Pande, an ex-policeman engaged as a Raj servant by Jai Prakash in the previous year, Ramutar, a Raj Tahsildar and Mahesh Singh, a sowcar. They also had some personal servants and cooks. They arrived at Rangoon on the 21st. Jai Prakash accompanied by some of the others proceeded up-country to Mandalay and after viewing the locality of the proposed grants ho returned to Rangoon at the beginning of April.

At Rangoon after a conference with Mr. Finucane and some officials of the Burma Government he signed an application in writing for a grant of 15,000 acres in the Toungoo district and left by steamer on the 5th April for Calcutta, leaving behind Lalu Ram Pande as his representative on the spot. He left with Lalu Ram a sum of Rs. 850 for his immediate expenses.

There are certain facts in connection with the application for the grant which it is important to boar in mind. The terms upon which the grant would be made were discussed between Jai Prakash Lal, Mr. Finucane, Mr. Fryer, the Financial Commissioner of Burma, and Mr. Hodgkinson, another Government official. A rough draft of the application addressed to Mr. Fryer, the Financial Commissioner, has been produced (Ex. Z 339).

This contains marginal notes by Mr. Fryer pointing out certain matters which the Chief Commissioner would or would not object to. It must have been either discussed with or submitted to Mr. Fryer for consideration and advice before the formal document was prepared. A second draft (Ex. Z 202) was then prepared incorporating the alterations suggested by Mr. Fryer. It is in the handwriting of Munshi Debi Prasad and is dated 5th April 1889. With the exception of a few unimportant alterations it corresponds with the document finally prepared on the same day and signed by Jai Prakash Lal before he left Burma.

There is, however, one significant alteration in this draft made in the handwriting of Jai Prakash Lal. In the draft as prepared by Debi Prasad the description and address of applicant are written under the space left for his signature and read thus "Diwan of the Dumraon estates in Shahabad, Bengal." This is struck out and in Jai Prakash''s handwriting the words "Rai Bahadur of Dumraon in Bihar" are substituted. The inference we are asked to draw by the appellant from this alteration is that Jai Prakash was anxious to make it clear that the application was being made by him in his individual capacity and not as Diwan of the Dumraon Raj. I think the inference is a reasonable one to draw, for I can see no object in amending the description, which was accurate enough, if in fact his application was being made in the capacity of agent for the Maharaja. Jai Prakash was a business man. He would not make the alteration unless he thought there Was some importance attaching to it.

The plaintiff relied upon Debi Prasad''s draft as showing that he at least thought it was to be Raj property. Debi Prasad is dead and cannot give evidence but from his letter (Ex. Z 1670) written to Lalu Ram Pande not long afterwards he uses language which seems to show that at that time at all events he considered the grant to be the personal affair of Diwan.

The application began by stating that the applicant, following the suggestion of the Lieutenant-Governor of Bengal, had accompanied Mr. Finucane and inspected several places in Burma between Rangoon and Mandalay to see what would be most suitable for settlement of emigrants from the surplus population of the Dumraon Raj extending over large parts of Bihar and the North-West Provinces and Oudh. He considered the Pyinmana district most suitable but in the short time at his disposal could not obtain sufficient information as to the quantity and exact locality of the land there available. He accordingly reserved his application for land in that district for a future time and begged to apply for the present for a grant of 15,000 acres (6,000 acres in the Zeyawadi and 9,000 in the Minbon circles) in the Toungoo district on certain terms set out in the application.

The land was to be revenue free for 12 years and after that period revenue was to be at the rates already mentioned in an earlier part of this judgment, and at no time was the land to be assessed at more than two-thirds of the rate current in the neighbourhood. The applicant was to have the option of surrendering up to the end of the fifth year without penalty; thereafter up to the end of the 12th year on paying a penalty of Rs. 100 for every 10,000 acres for every year the grant should have been held minus the first five years. He was to have a perpetual transferable title but liberty to transfer up to the 12th year was subject to the Government''s approval of the transferee.

Ninety per cent. of the cultivators were to be emigrants from Bihar, Chota Nagpur and the North-West Provinces and Oudh. There were other conditions which are not very material. The application ends by expressing a hope that in view of the expenses which will have to be incurred by him, the grantee, the Chief Commissioner will sanction a grant on the above terms and recognise his right of precedence for a further grant of 50,000 acres hereafter in the Pinmana District on more liberal terms.

We have been asked to draw various inferences from this document. In the first place it is suggested that the reference to a future grant of 50,000 acres indicates that this could not have been a private venture of Jai Prakash Lal''s and that this is supported by the further reference to the settlement of the emigrants from the surplus population of the Raj. On the other hand the appellant relies upon the fact that one of the conditions provided that the tenants might come from other parts of Bihar besides Dumraon and that the wording of the last clause indicates that the grantee himself was the person who would be responsible for the expenses. He further relies strongly upon the description of the applicant as amended by Jai Prakash Lal himself to show that the application was made on his own behalf. I consider that the only safe inference that can be drawn from this document is that as between himself and the Government of Burma Jai Prakash Lal intended to apply and did apply for a grant to himself in his own name.

What private arrangement, if any, there may have been between himself and the Maharaja, there is nothing in the document to indicate. At the same time, unless there was some such private arrangement which it was intended to keep secret, the application itself and the alteration of the description of the applicant show that it was an application on his own behalf.

I now propose to deal with the incidents that occurred after the 5th April, 1889, when Jai Prakash Lal left Burma, and especially the incident of the 1st June, following, when the Maharaja by a Parwana of that date authorised the expenditure from the Raj treasury of a sum of Rs. 25,000 by Jai Prakash Lal on the Burma colonisation scheme. On the 14th April, the Diwan arrived back in Dumraon. There ensued a voluminous correspondence between Lalu Ram Pande who had been left behind in Burma and the Diwan which continued until the latter''s death in 1897.

This Lalu Ram Pande had been engaged by Jai Prakash Lal in the previous year and given employment in the Raj service on the recommendation of certain friends who had taken an interest in him. He was apparently a man of some strength of character who had been suspended from the police service for arresting, presumably without justification, a European in circumstances which gave rise to some discussion in the newspapers at the time. Whether he was justified or not need not be discussed. His suspension was not due to any act reflecting upon his honesty. From this correspondence it is clear beyond all doubt that Lalu Ram Pande regarded Jai Prakash Lal as his master and the proprietor of the Burma grant. It is equally clear that Jai Prakash Lal never gave him any reason to suppose the contrary, and his wages were thenceforth paid by Jai Prakash Lal and no longer out of the Raj treasury. There are several instances on record where servants were transferred from Raj service to Jai Prakash''s personal staff or vice versa.

After his return from Burma certain money was forwarded by Jai Prakash Lal to Lalu Ram and certain expenses in connexion with the Burma venture were incurred and these were paid out of Jai Prakash Lal''s private account. After the 1st June, when the Maharaja issued his Parwana authorising the expenditure of Rs. 25,000 and up to the 27th July, certain further monies were forwarded to Lalu Ram from Jai Prakash''s private account the sums thus expended amounted in all to just under Rs. 2,200. With the exception of two small items of Rs. 20 and Rs. 50 these are said by the respondent to have been recovered eventually from the Rs. 25,000 sanctioned by the Maharaja and placed at the disposal of the Diwan for the Burma scheme.

There has been considerable dispute as to whether these sums were in fact recovered from the fund of Rs. 25,000 or not. The matter is not absolutely free from doubt but I think the effect of the evidence as revealed by the accounts which are somewhat complicated is that except the two small sums mentioned the expenses were in fact recovered from the fund placed at the Diwan''s disposal. I shall revert to this point later when dealing with the accounts which require consideration for other purposes. At the same time I confess the matter does not appear to me to be one of great import.

What is in my view much more important to remember is that during the two months which elapsed after the application and before the grant was sanctioned by the Maharaja and for a short time afterwards the expenses, such as they were, amounting roughly to Rs. 2,200 were provided but out of the Diwan''s private account. If they were subsequently recovered from the fund of Rs. 25,000 placed at his disposal it does not appear to me materially to affect the matter. The fund was at his command for the Burma scheme and it was reasonable that he should exhaust that fund first even for the expenses already incurred, keeping in reserve his private resources until they should be required.

It is unnecessary to refer in detail to the letters which passed between Lalu Ram Pande and Jai Prakash Lal. Their effect is as above stated. Perhaps the last letter written before the 1st June, namely, on the 31st May, from Jai Prakash Lal to Lalu Ram may be usefully referred to. After giving certain instructions as to the work to be carried out which was of an experimental nature and promising to send more money by the next mail, he adds:

I am not a rich man. Money will have to be spent very economically and carefully. No doubt there will be much waste in the trial but caution would be necessary.

The learned District Judge has referred to many other instances in this correspondence which I think show beyond any possibility of doubt that Jai Prakash Lal and Lalu Ram, his agent on the spot, treated the grant as that of Jai Prakash himself. This correspondence went on as already stated during the lifetime of Jai Prakash and was continued after his death by his son, the defendant. If the grant had been applied for on behalf of the Raj it is highly improbable that Jai Prakash Lal would write in this strain emphasising the need for caution in expenditure as his resources were limited. If he was merely acting as the agent of the Maharaja it is to my mind inconceivable that he would have written in such terms.

I now return to the Parwana of the 1st June 1889. On that day the Maharaja issued a Parwana addressed to Jai Parash Kal authorising him to spend out of Raj Treasury for the colonisation of Burma a sum of Rs. 25,000. The document is written in the Persian script and much controversy was arisen as to the correct reading of a certain word in the document. The disputed word according to the appellant is Ayanat which means help or assistance, according to the respondent the word is Injanib, an honorific form of the first person singular "I" and frequently used in such documents. If the appellant''s reading is correct it would indicate that the money was in the nature of a gift or contribution towards a scheme in which the Maharaja was not directly interested. If the plaintiff''s version be accepted it merely means that the Maharaja authorised the expenditure of Rs. 25,000 of his own money upon the Burma colonisation scheme and except for the inference to be drawn from the fact that he was providing money for this purpose it leaves the question of ownership at large.

I shall deal later with the question of the proper reading of this word in the light of the expert evidence of which there was a great deal, but accepting for the present the conclusion arrived at by the learned District Judge that the word was Injanib, it becomes necessary to determine the proper inference to be drawn from the fact that the Maharaja contributed a sum of Rs. 25,000 towards the expenses which had necessarily to be incurred before the land could be rendered cultivable.

I use the word contributed advisedly, because when this money was expended the Maharaja ceased to contribute any further and the subsequent expenses were all paid from Jai Prakash''s private account or after his death, by his son. This transaction is the sheet anchor of the respondent''s case. The argument is that where property is acquired in the name of one person but the purchase price is paid by another a presumption arises that the transaction was one for the benefit of the person providing the money.

Such cases are common in India where benami transactions are recognised. As a general proposition of law the principle enunciated may be accepted. In support of the general proposition the following cases were cited: Gopee Krist Gosain v. Ganga Prasad Gosain [1854] 6 M.I.A. 53: Bilas Kunwar v. Desraj Singh AIR 1915 P.C. 96, Nrityamoni Dasi v. Lakhan Chander Sen AIR 1916 P.C. 96; Raja Deo v. Abdulla AIR 1918 P.C. 35; Gur Narayan v. Sheo Singh Lal Singh AIR 1918 P.C. 140 ; Promode Kumar Roy and Others Vs. Kali Mohan Saha Pramanick and Others, .

But apart from the fact that the presumption is rebuttable, its strength or weakness can only by gauged by reference to all the surrounding circumstances. The present case differs from these in which the principle has been applied where the purchase price of property taken in the name of A has been paid by B. Here there is no question of paying the purchase price of land conveyed. The nature of the transaction required that money should be expended before a formal grant could be obtained. The grantee was in the meantime allowed to take possession and began clearing the jungle.

The distinction may not be a very broad one but I think it is of some importance especially when it is remembered that it was not the whole but only a portion and a minor portion of the initial expenditure which was contributed by the Maharaja.

Whilst it is true that in determining questions of Benami it is most material to ascertain the source from which the purchase money comes most of the cases in which the principle has been applied were free from complications. Where other relative circumstances exist they must always be considered. In Ram Narain v. Muhammed Hadi [1899] 26 Cal. 227, a case having certain features in common with the present, Sir Richard Couch in delivering the judgment of the Judicial Committee pointed out that the source from which the funds came, whilst a very important fact, was not the only criterion.

In that case the defendant had been in the service of the plaintiff and his father for many years managing their estates successfully and had some claim upon their generosity. The property in suit had been purchased in the defendant''s name and paid for by the plaintiff, who claimed that the purchase was a farzi transaction. The defendant had been allowed to remain in possession taking the profits for a period of 9� years. Their Lordships considered that in spite of the fact that the purchase price was paid by the plaintiff, the relationship between the parties and the fact that the defendant had been allowed to remain in possession for several years supported the defendant''s case that the property was purchased for him as a recognition of his services.

In considering this question it is perhaps pertinent to ask why a person in the position of the Maharaja should on this occasion be anxious to enter into a Benami transaction, a practice which, so far as is known, was certainly not his habit. The reason suggested is that he was a reluctant participator in the scheme which he merely entered into to please the Government without any hope of profit, and if he should eventually wish to retire, his prestige would not suffer thereby if the ostensible grantee should be his Diwan and not himself.

I am not prepared to find that the Maharaja was less solicitous of his Diwan''s good name than of his own, but even if his attitude towards the Burma scheme was that above described, there is no reason for presuming that whilst he was willing that his Diwan should bear the displeasure of the Government in the one event, he was unwilling that ho should reap the profit in the other.

The suggestion appears to me to be of too speculative a nature to carry much weight. It is much more important to consider the actions of the parties at the time when the grant was applied for and subsequently. (His Lordship, in the course of his discussion on the evidence, observed as follows). Father Vander Schueren used to stay at Dumraon frequently as the Maharaja''s guest. These occasions were generally during the Christmas holidays when he formed one of the house party. The present defendant was for a time a pupil of his at St. Xavier''s College in Calcutta. He had various conversations with Jai Prakash Lal about Burma.

On one occasion in particular in December 1889 or January 1890 when a guest of the Maharaja, he asked Jai Prakash whether the Burma property was his own or that of the Raj. Jai Prakash answered that it was his own and at his own risk. Father Vander Schueren who held a good opinion of the defendant''s intelligence and capacity was very anxious that his pupil should have a complete University education in India first, and afterwards in England. Jai Prakash Lal, upon whom he urged the expediency of giving his son these educational advantages, said he was afraid that it was not possible, as owing to his own work with the Raj he would not be able to do himself what was needed to make the Burma scheme a success, and he would require his son''s help for this.

There can be no question as to Father Vander Schueren''s veracity and his recollection was not challenged. He was not cross-examined. The learned Judge dismissed this and similar evidence of other witnesses on the ground that it was inadmissible. Now it seems to me that it is most material to ascertain the state of mind of Jai Prakash Lal with regard to the Burma property at or about the time when the grant was being obtained.

All the more so is this necessary in the present instance where the plaintiff''s claim is based, not upon any direct evidence, but merely upon inferences to be drawn from the conduct of the parties. If Jai Prakash Lal is found stating openly to one of the Maharaja''s guests that the property is his and not the Maharaja''s this is, in my opinion, a relevant fact. It is certainly a fact which makes it highly improbable that the Maharaja was the real owner. Moreover he discusses his son''s future education and regrets that it will have to be cut short as the Burma property will require his attention. The value of this evidence must depend largely upon the character of Jai Prakash Lal, If he was a scheming and dishonest person such statements would be of little or no value in his favour.

Moreover, if in fact the property was that of the Maharaja, it would be idle for Jai Prakash at that period to go about saying that the property was his. It was bound to come to the ears of the Maharaja and he could not hope by such conduct to reap any advantage. If, however, he was honest and had the interests of his master at heart, as the evidence shows, then I consider that such statements made by him in the circumstances existing are of considerable value as showing the improbability of the inference sought to be drawn by the plaintiff and arc admissible u/s 11, if under no other section of the Indian Evidence Act.

It would be a strange system of jurisprudence which made admissible, in such a case, admissions from which an inference adverse to the person making them might be drawn whilst excluding all other statements tending to show that the inference sought to be drawn was highly improbable. (His Lordship continued the discussion of the evidence and observed.) I have reviewed at some length the history of the acquisition of the Burma property and the manner in which it was treated by the parties principally concerned.

I have dealt with the arguments put forward on behalf of the respective parties arising out of the incidents which occurred during the whole period and I have indicated the conclusions at which I have arrived and the inferences which I think ought to be drawn from the conduct of the parties. From a review of the whole evidence and after giving due weight to the decision of the learned Judge and the arguments adduced on behalf of respondent I am satisfied that the plaintiff has entirely failed to establish his case that the property was acquired by Jai Prakash Lal on behalf of the Dumraon Raj. The conduct of the Diwan throughout appears to me entirely inconsistent with that of a person who was merely acting as benamidar or as a trustee on behalf of another. In the first instance he seems to have taken care to make it manifest that he was applying on his own behalf and not as Diwan of the Dumraon Raj. Next although the journey expenses may have been paid for or contributed to by the Maharaja, a course which had been followed on previous occasions in somewhat similar circumstances, we find at the outset the Diwan spending his own money and sending remittances to Lalu Ram Pande to be spent upon the Burma scheme. The money sanctioned by the Maharaja for this scheme is limited to a definite amount.

His very conduct in authorising the Diwan by parwana to spend Rs. 25,000 or any other sum, upon his own property was an entirely new departure and one which the circumstances of the case do not seem to have rendered necessary. It is significant also that although benami transactions are common in India it does not appear that the Maharaja was in the habit of having recourse to this system. The only instance appearing amongst the vast amount of evidence tendered in this case, in which anything of the sort was done, is the acquisition of an insignificant property at an auction sale in the name of a Raj officer who was on the spot and in that case a document was afterwards executed by him in favour of the Maharaja. The Maharaja was undoubtedly under great obligations to his Diwan, and that he was fully alive to the fact is clearly shown by the evidence and by the substantial recognition of his services which he conferred upon him on many occasions. The parwana itself is consistent with a contribution towards a scheme in which the Maharaja was not beneficially interested and if the disputed word should be read as ayanat it points strongly in this direction.

The fact that the Diwan himself considered the property his own affair and at his own risk is proved conclusively by a body of reliable evidence whilst there is also much evidence to show that the Maharaja himself stated on many occasions that he was helping his Diwan in a scheme which he did not consider likely to be profitable and that he was not himself inclined to take up waste land in Burma. The manner in which the grant of Rs. 25,000 is dealt with and accounted for by the Diwan was different from the method of accounting that would have been expected had the Burma property belonged to the Raj. Moreover, although up to May 1894, when the Maharaja died, a sum of over Rs. 4,000 has been collected as the rents and profits of the property, none of this was entered in the Raj accounts.

It is true that it was re-invested in developing the property, but Jai Prakash had no authority from the Maharaja, if this was Raj money, to invest it in developing the property in addition to the Rs. 25,000. When the Maharaja stopped further payments the first thing we find is that Jai Prakash Lal passes orders that all future payments must come out of his own pocket.

From first to last no attempt is made by anybody before the present suit is brought to recover the property for the Raj, nor is it ever entered in any book or list of properties appertaining to the Raj. If this was in fact a benami transaction it was certainly one which the parties most interested were taking the greatest pains to conceal from third persons, including the Raj servants: but there is no evidence whatever that would point to any sufficient motive for keeping the real facts secret.

The Maharaja certainly had an object in helping to find an outlet for relief of the tenantry in the congested areas, but there seems to have been no motive whatever to conceal the fact that he had purchased land for this purpose. If in fact, as was suggested in argument on behalf of the plaintiff, Jai Prakash, after the Maharaja''s death, made up his mind to take advantage of the money already spent by the Maharaja and acquired the lease as his own by dishonest methods such conduct was entirely contrary to his previous dealings with the Raj. Moreover, it could not escape the notice of the Maharani that he was treating the property as his own and she was presumably as much aware of the real state of affairs as was her husband before her. And even after Jai Prakash Lal''s death, and when the property was undoubtedly a valuable one, although she went to the length of suing the defendant to recover the comparatively unimportant property comprised in the ticca leases which were shortly about to expire, she made no attempt whatever to recover Burma. The only evidence of any importance which indicates a conclusion contrary to that at which I have arrived is that of the Maharaja of Gidhour in circumstances which I have already described, and the facts connected with the Samad speeches and the tenants'' address, reports of which were afterwards circulated with the Diwan''s sanction and assistance.

This evidence is to my mind quite insignificant when weighed in the balance against the other circumstances in the case, and is easily explainable.

My finding on this part of the case makes it unnecessary to consider the other points which were raised on behalf of the appellant, but out of respect to the arguments of the learned Counsel for the appellant, and Sir Ashutosh Mukherji for the respondent, and as this case may go to a higher tribunal I propose to express my opinion upon the other main questions which have been argued at great length before us.

The first of the remaining questions to be dealt with is whether there was a settlement of the dispute between the plaintiff and the defendant in November 1914. (His Lordship while going into the evidence on the point and holding that there was a settlement by which defendant agreed not to take legal proceedings against the plaintiff for the money due from him, and the plaintiff in his turn agreed not to take any legal proceedings in connection with the Burma estate, observed.) It was urged in argument on behalf of the plaintiff that where parties are negotiating as to the terms of an agreement, and it is contemplated that a written document shall eventually be signed, everything which takes place until the document is finally signed amount merely to negotiation. I quite agree with the general proposition but in the present case the circumstances were exceptional. The agreement was in fact arrived at in September when it was not contemplated that any document should be signed.

The object of the meeting in November was not to discuss the terms of the agreement which had already been come to, but merely as to whether the Maharajah would at that stage, in view of the suit pending by the Maharani of Rewa, execute a document, and the only reason, according to the defendant''s evidence, which I accept, why a document was not at that time executed was that it was unnecessary in view of the agreement already come to, and it might prejudice him in the Rewa case then pending.

I am satisfied that the settlement alleged by the defendant was in fact arrived at. (His Lordship concluded his discussion of the evidence and proceeded.) A point was taken on behalf of the appellant that the jurisdiction of the Civil Courts to decide a question relating to the possession of land in Burma of this description was ousted by Section 56 of the Lower Burma Land and Revenue Act (II of 1876) and that the suit was not maintainable. This point, in my opinion, is without any substance.

It has been hold on many occasions that the claims and disputes referred to in that Act, over which the Civil Courts have no jurisdiction but which are under the sole jurisdiction of the Revenue Courts, relate only to claims against Government and not to disputes between rival proprietors or cultivators. (See Maung Naw v. Ma Shwe Hmat (1915) 8 Bur. L.T. 191; Maung Po Kyaing v. Maung Pyi [1916] 10 Bur. L.T. 5; The Burma Oil Co. Ltd. v. Baijnath Singh [1920] 3 U.B.R. 212.

In view of the decision arrived at on the facts of this case it does not become necessary to discuss the question of limitation raised by the appellant and based upon the assumption that a different state of facts existed. Elaborate legal arguments took place before us based upon a variety of different hypotheses of fact. The defendant by his pleading raised the plea that the suit was barred by limitation. In answer to this the plaintiff relied upon Section 10 of the Limitation Act which provides that:

No suit against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property or the proceeds thereof or for an account of such property or the proceeds shall be barred by any length of time.

The learned District Judge, who found that the property was vested in Jai Prakash Lal as trustee for the Raj, and that the defendant took as his legal representative, disposed of the matter quite shortly. He discussed the nature and purpose of the trust which he found were ascertainable from the application for the grant and the parwana. The object, he says, was to carry out the purpose of the Government in their Burma colonisation scheme and money was placed in the hands of Jai Prakash Lal for that purpose; but if, in carrying out that purpose, a valuable property was created, it is still impressed with the original trust while it remains in the hands of the Diwan or his representatives, and they are not, and cannot, be entitled to plead the statute against their cestui que trust. He held therefore that Section 10 of the Limitation Act governed the case and that the suit was not barred by time.

The matter, however, is much more complicated than this simple statement of the case suggests. In the first place the defendant by his written statement challenged the title of the plaintiff to the Dumraon Raj and consequently his title to sue for any property constituting a part of the Raj. The defendant was not a party to the adoption suit or the compromise arrived at therein on appeal by which the plaintiff established his title to the Raj, and he was apparently prepared to re-open the question of the validity of the adoption and the plaintiff''s right as proprietor. The plaintiff, when this matter became urgent owing to an application for particulars of his title declined to go into the question of title, electing to stand or fall upon his possession of the Dumraon Raj acquired by the decree and the subsequent compromise in the adoption suit. His case was that by reason of his possession he had a presumptive title which could only be rebutted on proof of a superior title in some one else, and that as the Burma property was an accretion to the Raj he was entitled to recover it as the ostensible proprietor. When this matter came before the Subordinate Judge, who was then in charge of the case, upon the defendant''s application for particulars, in view of the plaintiff''s attitude in this matter, he refused to make the order asked for, but pointed out that in order to avoid any confusion in future it was necessary for the plaintiff to state in clear terms that he was proprietor of the Dumraon Raj by virtue of his presumptive title based on possession and that then he could say that he was entitled to advance his claim to the disputed properties on the ground that they were accretion to the Raj for the reason that they were acquired from the funds of the Raj.

He further pointed out that it was in the circumstances open to the defendants to disprove the apparent title of the plaintiff by showing (a) that the disputed properties were not acquired out of the proceeds of the Dumraon Raj but by Jai Prakash Lal with his own private funds; (b) that the plaintiff is not entitled to the Dumraon Raj but some other person is; and, (c) that the defendants have acquired title by adverse possession.

The plaintiffs thereupon filed particulars alleging that the Dumraon Raj was an impartible Raj held together as one unit and possessed by only one person at a time and that after the death of the Maharani in execution of the decree made in the adoption suit he obtained possession of the Dumraon Raj and other properties which by subsequent acquisition had become part of the Dumraon Raj and that he was seised in fee and absolutely entitled to the Raj and was in possession thereof by receipt of rent and produce and by payment of Government revenue.

The question of the plaintiff''s title was accordingly not gone into at the trial except in so far as it was based upon his possession in pursuance of the decree which was not disputed. It was contended, however, on behalf of the appellant that even if the Burma property was acquired by the late Maharaja through Jai Prakash Lal as his trustee, there was nothing to show that it was an accretion to the Dumraon Raj. If the plaintiff''s title to the property in suit depends solely upon his proprietary right to the Dumraon Raj then two questions arise at the outset for determination; first, Is his mere possession, in the circumstances stated, prima facie evidence of his title sufficient to enable him to sue.

This question, I think, may be answered by reference to the judgment of the Judicial Committee delivered by Sir Barnes Peacock in Oolagappa Chetty v. Arbuthnott [1874] 1 I.A. 268 where it is stated:

In England proof of the possession of land or of the receipt of rant from the person in possession is prima facie evidence of a seisin in fee. In India the proof of possession or receipt of rent by a person who pays the land revenue immediately to Government is prima facie evidence of an estate of inheritance in the case of an ordinary zamindari. The evidence is still stronger if it be proved that the estate has passed on one or more occasions from ancestor to heir.

These conditions are satisfied in the present case and no proof of a better title having been put forward, I think it must be presumed for the purposes of this case that the plaintiff is the lawful proprietor of the Dumraon Raj. The second question which arises is whether the property, if acquired on behalf of the late Maharaja, is an accretion to the Dumraon Raj. The plaintiff, when the question of particulars was before the Court, appears to have assumed that because the property was acquired out of the proceeds of the income of the Dumraon Raj, it, therefore, might be presumed to be an accretion to the Raj and that no further proof of this matter would be necessary. By the recent decision of the Judicial Committee in Rani Jagadumba Kumari v. Wazir Narain Singh AIR 1923 P.C. 59 it was decided that the income of an impartible estate is not so affected by its source that it should be assumed to form an accretion of the estate and that property acquired by savings from the income of the impartible estate does not become a part of that estate but remains the separate property of the holder. In the present case it is shown that the purchase money, or what has been regarded as the equivalent thereof, namely, the Rs. 25,000 and the journey expenses, came out of the Raj treasury, and it maybe presumed that this was the savings of the Raj income.

This, however, in view of the recent decision referred to, would raise no presumption that the property so acquired was an accretion to the Raj, and one must consider whether there are any other circumstances which would raise such a presumption. Upon the case made by the plaintiff the property was acquired primarily for the relief of the surplus tenantry of the Raj by providing for them an outlet in Burma, and although this argument was not adduced before us in appeal, it affords some ground for the conclusion that the Burma property if acquired by the Raj was intended to be an annex or accretion to Raj property.

I am not prepared, however, to speculate upon a matter of this sort which does not appear to have been the subject of discussion in the lower Court and was not argued before us. The plaintiff''s title is confined to his title to the Dumraon Raj and it is not shown, nor indeed would he have been entitled to prove, that he is the heir to the Maharaja''s separate property.

According to the ordinary devolution of separate property amongst Hindus governed by the Mitakshara Law, as in this ease, the separate property of the Maharaja would devolve in existing circumstances upon his widow and afterwards upon his daughter, and eventually upon his daughter''s son, the present Maharaja of Rewa. Some attempt was made to show that whatever interest the Maharani of Rewa had in her late father''s estate had been assigned to the plaintiff and that her son, the present Maharaja of Rewa, who was then an infant, had joined in this assignment. The plaintiff, however, is claiming not as the assignee of the Maharani of Rewa or her son, but as the proprietor of the Dumraon Raj, and it was not open to him on the pleadings to assert a title not relied upon. The plaintiff deliberately elected to stand upon his title arising out of his possession of the Dumraon Raj and he ought not now to be heard to allege a different title of which no notice was given and which was not the subject of investigation in the lower Court.

Moreover, the Maharani of Rewa is dead and the title of her son, assuming that he has any title at all which cannot be determined in this case, has now become vested. At the time when the alleged assignment was made he had no vested interest but merely a spes successionis and this cannot be the subject of a valid assignment even had he been of age at the time. Still less could his mother, purporting to act as his guardian on his behalf, bind him by such a transaction and we are told that he is contemplating instituting a suit in connexion with the properties of the late Maharaja of Dumraon if he has not already done so.

Assuming, however, that the plaintiff should surmount the difficulties which I have already indicated, and that it should be held that the property was acquired on behalf of the Raj and incorporated in the Dumraon estate, further difficulties arise in connexion with the question of limitation which must depend largely upon the facts as ultimately ascertained. If the property vested, immediately after the application was made or if it vested before the 11th December 1893, when the Maharaja refused to go on with the project, it might be said that Jai Prakash Lal was a trustee for an express purpose within the meaning of Section 10 of the Limitation Act and neither he nor hid legal representatives could afterwards plead limitation, but an investigation of the facts seems to me to show that up to December 1893 the property now claimed had not vested in anybody. The most that can be said, I think, is that Jai Prakash had been directed as the Maharaja''s agent to acquire the property, the expenses being provided by the Maharaja for that purpose.

In December 1893, however, it seems to me that, in any view of the case, the Maharaja withdrew from the venture and his authority to the Diwan came to an end. There was no longer any agency and no longer any trust. The Diwan was certainly in a fiduciary position, but if after the agency terminated the Diwan acquired the property in his own name, the most that could be said would be, if the doctrine of Keech v. Sandford [1726] Select Cas. Ch. 61 and similar cases applies, that there was a constructive trust in favour of the Maharaja or his representatives and not an express trust or trust for an express purpose within the meaning of Section 10 of the Limitation Act. Both Jai Prakash and the defendant have from the first undoubtedly asserted proprietary right in the property and 1 think that limitation would run from the date when the property was acquired, certainly not later than the 13th March 1896 when the lease was granted.

More than 12 years have elapsed since that time, but it is said that the Maharani was then in possession of the Raj, having a life estate under her husband''s will, and that limitation would not run against the reversioner but only against the life interest until the Maharani''s death in 1907. If this view is accurate, and if the plaintiff was not entitled to sue on the ground that he was a reversioner until 1907, then the suit, so far as he is concerned, is within time, but in order to determine the date at which the plaintiff was entitled to sue for possession of the Dumraon Raj, that is to say, the date at which his title vested, it becomes necessary to my mind, to investigate that title and we have not the materials before us in the present suit to enter into these matters.

In the adoption suit it was pleaded by the plaintiff that the Dumraon Raj was an impartiable estate and that the succession was governed by the rule of lineal primogeniture and further that there was a custom or kulachar of the family that no female, whether a widow or a daughter, could succeed to the Raj, the widow being entitled only to maintenance. If the plaintiff was entitled to succeed as the next lineal heir in the direct line upon the death of the late Maharaja, then the period of limitation against him would begin to run in 1896, when the late Maharaja died, and the suit would be barred by limitation. It may be that the late Maharaja was entitled to dispose of the property by will giving his widow a life interest. If he was not, then the plaintiff''s title became vested on his death. The question of his title has not been investigated owing to the attitude which he adopted on this point before the trial began and it seems to me that it would be useless to enter into a speculative investigation based upon a hypothetical state of affairs contrary to the facts found.

It remains to consider whether the plaintiff has made out his title to possession of the house and garden in Dumraon. The learned Judge dealt with these two properties as though they were one, and pointed out that a considerable sum of money had been spent by the Raj upon the purchase and upkeep of this property and seems to have assumed that these properties were also held on trust by the Diwan. It was not argued before us, however, in this appeal that any trust attached to the possession of these properties nor had such a case been established. (His Lordship then discussed and explained the evidence supporting his finding on the point and concluded.) In my opinion the appeal with respect to the property both in Burma and Dumraon should be allowed and the plaintiff''s suit dismissed. The appellant is entitled to his costs here and in the Court below. The question of the appropriate hearing fee will be considered later.

Mullick, J.

It will be convenient at the outset to give a short history of the principal personages who figure in this case. (His Lordship gave a short sketch of the lives of the principal personages.)

It will be convenient next to give a short account of the Burma Reclamation Scheme. (Then his Lordship gave an account of the Burma Reclamation Scheme and after discussing the evidence observed as follows:) With regard to the admissions made by Jai Prakash in his own favour, they also are not proved, and even if proved they would not in my opinion, be evidence. I do not believe that Jai Prakash Lal would select the Munsiff as a proper person for begging charity on his behalf from the Maharaja. (Then his Lordship after continuing his discussion on the facts and the evidence, observed:) Therefore, on a review of the documentary and oral evidence up to the 11th December 1893, I am satisfied that the learned Judge''s conclusion that the title rested with the Maharaja and not with Jai Prakash Lal is correct. I believe that Jai Prakash was sent by the Maharaja to Burma, with instructions to take land in his name for the Dumraon Raj and to hold and develop it in trust for the Raj and that the grant of Rs. 25,0.00 made on 1st June 1889, was not a gift to Jai Parkash Lal to aid him in developing the property for himself but was a grant for the development of the property of the Dumraon Raj for the Dumraon Raj.

I find that on the 11th December 1893, the Maharaja revoked the trust and declined to pay for the development of the property any longer. Jai Prakash Lal then resolved to pay for the development himself and to assume the rights of ownership as the proprietor of the property. He, however, made one more effort in the presence of Moti Lal Ghosh to induce the Maharaja to continue the project but he was unsuccessful. His subsequent conduct is throughout consistent with the view that he treated the property after December 1893 as his own private property.

(His Lordship after further tracing the course of events till the lodging of the present suit by the plaintiff, continued.) In this state of things I am of opinion that the balance clearly preponderates in the plaintiff''s favour.

In the absence of an express declaration we can only decide on inferences: but the learned Judge in the Court below has made a most exhaustive and careful analysis of the facts and I think that the conclusions which he draws are irresistible. Even if I had been of the opinion that the evidence was evenly balanced and that the one view was just as reasonable as the other, I should not have been justified in appeal in setting aside the finding of the learned District Judge.

The limits within which an appellate Court may act are stated as follows by Lord Esher in Colonial Securities Trust Co. v. Massey [1896] 1 Q.B. 38:

I have frequently stated this rule, and I think it is well expressed by Lopes, L.J., in Sevaje v. Adam [1895] W.N. 95. The matter is thus stated.

Where a case tried by a Judge without a jury comes to the Court of appeal, the presumption is that the decision of the Court below on the facts was right, and that presumption must be displaced by the appellant. If he satisfactorily makes out that the Judge below was wrong, then inasmuch as the appeal is in the nature of a re-hearing, the decision should be reversed; if the case is left in doubt it is clearly the duty of the Court of Appeal not to disturb the decision of the Court below.

With the rule so stated I entirely agree.

To the same effect is Lord Buckmaster''s judgment in Nabakishore v. Upendra Kishore AIR 1922 P.C.39. Speaking of the appellant the learned Judge says:

If all he can show is nicely balanced calculations which lead to the equal possibility of the judgment on either the one side or the other being right, he has not succeeded.

In the present case the appellants have failed to show that the learned Judge is wrong. It is true that the payment of the consideration money is not everything in a case of benami though it was observed by Sir George Farwell in Bilas Koer v. Desraj AIR 1915 P.C. 96 that the criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid. But after all it is a question of fact whether the payment of the money was a gift or a transaction for the benefit of the owner of the money. There is no question of presumption or of onus of proof; the matter is simply one of balance of evidence.

In Ram Narain v. Muhammad Hadi [1899] 26 Cal. 227 their Lordships of the Privy Council observed:

In many, it may be said in most, cases of alleged benami this is a very important fact. But it is not the only criterion. Here it is consistent with the defendant''s case which is that the plaintiff purchased the village for him and intended it to be a gift, in return for his services. In such a case a much more important fact is the actual possession or receipt of the rents of the property.

Here Jai Prakash was admittedly in possession but the evidence justifies the inference that he was in possession a Maharaja Radha Prasad''s trustee.

As I am unable to agree with the learned Judge''s findings on issues 11 and 12 which relate to the question of settlement and which I propose presently to discuss, it is scarcely necessary for me to consider the law bearing upon title; but out of respect to the very elaborate arguments that have been addressed to us by both sides on this part of the case, I will shortly state my opinion.

The first question is whether the suit is barred by limitation, if Section 10 of the Indian Limitation Act applies; and if Jai Prakash Lal and after him the defendants took the property as trustee the bar of limitation is saved. The learned vakil for the respondent before us states the plaintiff''s case thus:

The Maharaja Radha Prasad deputed Jai Prakash La to Burma to acquire for the Raj in his own name land to be colonized by the tenants of the Raj in furtherance of the Government Colonization Scheme, Jai Prakash Lal applied for and acquired the land.

Specific purpose:--Acquisition of land for Raj for colonization.

The specific purpose is a matter of inference and I have already found that the specific purpose alleged by the plaintiff is established. It is not necessary that an express declaration should be proved. In England inferences drawn from the conduct of the parties have been held sufficient to establish an express trust and I think the same principle should apply to trusts for a specific purpose within the meaning of Section 10 of the Indian Limitation Act.

On behalf of the appellants it is next contended that there never was any property in 1889, and it certainly was not vested in Jai Prakash Lal by Maharaja Radha Prasad in consequence of any trust created between them.

Now with regard to the existence of the property, it is contended that no property came into existence before the 17th April 1890, when for the first time information was given to Jai Prakash''s agent Lallu Ram that the lease was ready for signature. It is suggested that before this date Jai Prakash Lal was in temporary occupation of waste land and that he was liable to eviction. I am unable to see how this argument affects Section 10 of the Limitation Act. It was open to Radha Prasad to create a trust empowering Jai Prakash Lal to go to Burma for the purpose of acquiring land for him and the land so acquired would become vested in the trustee from the moment of its acquisition and the trust would fasten to that land exactly as if it had been vested in the trustee at the moment of the creation of the trust.

In the present case the evidence is that the trustee Jai Prakash Lal obtained possession of the greater portion of the land when he obtained permission to cut the timber on it; that is on 29th January 1890 (Ext. 29) and 20th February 1890, (Ext. 31). But I think Lallu Ram took possession even earlier. On the 14th November 1889 Lallu Ram reports to his master that he has selected a piece of waste land at the Pyu railway station and that the demarcation had cost Rs. 235 and that the survey would cost Rs. 3,750. I think he was in possession from this date but even if he was not then he certainly was in possession on the 20th Feb., 1890. Apparently his intention was to extend to the south of the Pyu river, but this was not allowed and only land to the north of the river was given. Certain lands belonging to the village of Tangan were also subsequently excluded, but nevertheless there was a large area put into his possession in the year 1889, and I cannot see how the argument as to there being no land in existence can be accepted.

The suggestion is perhaps that Jai Prakash Lal had no interest in the land at all till the lease became ready for signature. But this argument is not maintainable as he was put in possession under the terms of the draft application. The contention that the draft application gave no title because it was approved by the Financial Commissioner and not the Chief Commissioner does not carry weight because from the marginal notes on the draft application, it would appear that the Financial Commissioner was in communication with the Chief Commissioner before the final application was approved.

There is also evidence that Mr. Finucane and Jai Prakash Lal had an interview with the Chief Commissioner before starting for Mandalay. Some of the terms in the application were no doubt altered afterwards; but that was done by consent between the parties to the transaction and the various acts of possession were clearly referable to the final contract of 1896. In my opinion the Government of Burma could not have resisted an action for specific performance at any time after April 1889.

If, therefore, Jai Prakash Lal went to Burma as Radha Prasad''s trustee then Radha Prasad became the beneficial owner of all the properties which Jai Prakash acquired as such trustee and he was entitled to the benefits of all the contracts made by Jai Prakash in regard to the properties. The trust fastened in all after-acquired properties and these became vested in the trustee at the various times when they were so acquired: The defendants having come into possession as heirs of the original trustee are also bound by the trust. Neither their possession nor their father''s can be adverse to the settlor or his representative.

What the position would have been if the plaintiff had been unable to prove that properties had become vested in Jai Prakash for a specific purpose it is scarcely necessary to discuss. In England an agent or a person in a fiduciary capacity if he acquires property during the continuance of that relationship is bound to hold the property in trust for his principal and cannot take any advantage from it for himself. He is an express trustee and is incompetent to plead the statute of limitation.

It is contended that in India the law is different and scope of Section 10. of the Limitation Act is more restricted. Possibly that may be so, but the question does not arise. If Jai Prakash took the land at all under authority derived from his master he took it as a trustee within the meaning of Section 10, The section does not require that the trust should be proved by an express written or oral declaration. I think it may be inferred from circumstances.

The next question is what title must the plaintiff prove. District Judge''s order dated the 9th January, 1920, shows that the position which the plaintiff took up in the Court below was that he was in possession of the Dumraon Raj and u/s 110 of the Indian Evidence Act such possession was a good title against the defendants until the defendants could show a better title. The Court declined to amend the issues so as to let in proof of the plaintiff''s title as the heir of Radha Prasad.

It is now contended by the defendants that the plaintiff cannot be permitted to put in evidence the judgment in the adoption suit for the purpose of showing his succession by inheritance to Radha Prasad''s estate. Now there are two judgments of the Sudder Dewani Adalat which show that the Dumraon Raj is an impartible estate. I think in this case it is unnecessary to require further proof of that fact, and if the Burma property is an accretion to the Raj, it is sufficient for the plaintiff who is in possession of the whole Raj to rest his case on his possessory title.

Now, I find that in the plaint it is asserted that the Burma property is a part of the Raj. As the defendants were contending that the Burma property was not acquired by Radha Prasad at all, the case that it was the self-acquired property of Radha Prasad and that it had not been incorporated with the Raj was never made in the Court below. There is also evidence that the initial expenditure on the property came out of the Raj funds. The account for this money was kept in the Raj and part of the correspondence relating to the property was conducted with the assistance of the Raj establishment.

It was asserted in the presence of Radha Prasad and Jai Prakash at Samad''s meeting and in the tenants'' address, and later in the Karnamas and in Jai Prakash''s sarbasva that the property belonged to the reasat (estate) and no contradiction was made either by the settlor or the trustee. The omission on the part of Radha Prasad to mention the property in his will and the subsequent omission by Maharani Beni Prasad and the plaintiffs are points in favour of the appellants, but on the whole my opinion is that the evidence although meagre is sufficient to establish that the Burma property was incorporated with the Dumraon Raj.

The decision rests on a question of fact, namely, intention, and at this distance of time it would be unreasonable to expect better evidence to prove that Maharaja Radha Prasad did intend to treat this property as his self-acquired property. Therefore if the Burma property is a part of the impartible Raj, the plaintiff, who is in possession of the remainder of the Raj, has a good cause of action for the recovery of the property and it being trust property within the meaning of Section 10 the defendants cannot plead limitation.

The next question is whether the plaintiff''s title is liable to be defeated by the order of Radha Prasad, dated the 11th December 1893. There was no express pleading to this effect in the written statement and indeed the defendants could not very well have asserted that Jai Prakash was the exclusive proprietor of the Burma property, and at the same time taken the alternative plea that Jai Prakash was a trustee and that Radha Prasad revoked the trust. The estoppel pleaded by the defendants was of a totally different kind, namely, that the plaintiff was incompetent to sue in consequence of an agreement made in September 1914.

But although the question of the revocation of the trust does not arise out of the written statement I think the Court is bound to take notice of it if the facts on the record establish it.

There is no question of surprise here and it is a point which is vital to the case.

Now it is contended that the doctrine laid down in Keech v. Sandford [1726] S Cas. Ch. 61 precluded Jai Prakash from taking the benefit of the grant for himself. In Keech v. Sandford [1726] Select Cas. Ch. 61 the lessors had refused to renew the lease in favour of an infant cestui que trust and thereupon the trustee took the renewal for himself. It was held that he could not retain the benefit and being a trustee must hold the lease for the benefit of the infant cestui que trust. But here the question is whether the trust was not revoked. Was it an imperfect trust or was it a trust in respect of which the settlor had reserved to himself the right of revocation? If the property was not vested in the trustee at any time and the settlor retained the control over it or over the funds for developing it, then it was not a perfect trust. If, however, the settlor handed over the property to the trustee, subject to the condition that he would be competent to revoke the trust after the Rs. 25,000 were spent, then it was a perfectly valid trust and the only question for consideration would be whether the order of the 11th December 1893. was a valid revocation.

In my opinion the answer is in the affirmative. In this connection the cases on abandonment of contracts of partnership are helpful. In Prendergast v. Turton 1 Y & Coll. C.C. 98 several partners started to work a mine; the plaintiff subscribed his share but refused to subscribe more, and the other partners continued to sink their money on it and eventually made the mine profitable. The plaintiff then came forward with a claim and it was held that he was not entitled to succeed.

In Rider v. Walsh 11 IE 22 the principle was applied to a building speculation. We have already seen that the Burma venture was a highly speculative project and if it had been a case of partnership between Radha Prasad and Jai Prakash I think the refusal of Radha Prasad to go on with the venture would have constituted an abandonment. Reasoning on the same principle the refusal here would amount to a revocation of the trust. It has been urged that Radha Prasad may have been content to take the risk of a forfeiture of the grant or the grant may have been of value to him even without the expenditure of more capital and the trustee was not justified in taking for himself the benefits that had up to then accrued and expending his own money and treating the whole property as his own. The matter has to be judged upon the facts. The income from the crops grown was only Rs. 956 in 1893 and the whole of it and more was required for the development of the land. In 1895 Lallu Ram was carrying on with money borrowed locally and if no further capital was going to be expended the land cleared was valueless.

We have seen that clearances rapidly relapsed into jungle, and if Jai Prakash Lal had reported that ho was not going to spend any more money the grant would most assuredly have been forfeited by the Government. In the circumstances he was justified in thinking that the trust had been revoked. There was no lack of good faith, for the Maharaja had from the outset disliked the project and I do not think it was necessary for Jai Prakash to first surrender the grant us exclusive owner.

Therefore limitation began to run against Radha Prasad from the 11th December 1893, and was not suspended by his death or by the possession of Maharani Beni Prasad as executrix, legatee and life tenant.

Assume, however, that there was no abandonment in law, then Jai Prakash remained a trustee till his death and after his death Hariji dealt with the property as trust property and was not entitled to plead limitation. It has been contended that Hariji''s possession was adverse to Maharani Beni Prasad, there was no express trust within the meaning of Section 10 and Jai Prakash was merely an implied trustee. Even then, however, Jai Prakash being executor could not be in adverse possession. But that will not help the plaintiff. He must show a cause of action either under Article 140 or Article 141 or Article 144 and this he cannot do.

Having definitely undertaken to rely upon his possessory title only, it is not competent to him to adduce evidence to prove any of the facts necessary to establish a title which gives him a cause of action for the application of these articles.

It was next contended that the Burma Laws Act makes a transfer of the grant invalid and therefore the legacy also was invalid and therefore Beni Prasad acquired no title to the property and that Raj Rajeshwari succeeded to the property on Radha Prasad''s death and time began to run against him from 1894 and that the present suit by the plaintiff is barred. The answer to this is that in the absence of any provisions for forfeiture and re-entry the transfer of the grant is not void. The Burma Government could have perhaps ejected Maharani Beni Prasad if she had taken possession of the Burma property, but it does not follow that Maharani Beni Prasad had acquired no title to the land by the will of her husband.

The question was also raised whether under the Lower Burma Land and Revenue Act (II of 1876) a suit would lie at all in the Court at Arrah and our attention was drawn to Issue No. 13. The learned Judge, in my opinion, was right in deciding the issue in plaintiff''s favour. The provision in the Land and Revenue Act in question only applies to a suit between the Government and the grantee or any person claiming under him and does not affect a suit to which Government is not a party in which no question as to the status of land owner is in controversy. In a suit between a settlor and his trustee no question arises which the Revenue Court can decide.

Let us next examine the position if the Burma property is not an accretion to the impartible Dumraon Raj. In that case the property will descend first to Maharani Beni Prasad and then to her daughter the Maharani of Rewah and then to the latter''s son Maharaja Gulab Singh. The plaintiff''s possessory title will not assist him in establishing a cause of action against the defendants and he must have recourse either to Articles 140, 141 or 144 as stated before.

Unless the plaintiff can rely upon the facts found in the adoption suit there is no evidence in the present suit to establish the plaintiff''s title to Radha Prasad''s separate properties. On behalf of the plaintiff it is suggested that the judgment in the adoption suit should be accepted as evidence u/s 43 of the Indian Evidence Act. I do not think either Section 43 or any other section will make this judgment between other parties admissible against the defendants. It may be said that it is a matter of great hardship to the plaintiff that in every suit for recovery of land appertaining to the separate estate of Radha Prasad he will have to prove his title by inheritance; but the defendants are entitled to take this defence however technical it may be and to run the risk of being mulcted in costs in the event of being defeated on the issue.

The mere fact that the plaintiff is in possession and pays Government revenue for the Dumraon estate will not prove that he is the nearest heir of Radha Prasad; and therefore if the property is not an accretion to the Raj, he cannot succeed only upon his possessory title.

The other objection raised by the defendants in this connexion is that assuming that the plaintiff has proved a prima facie title as the heir of Radha Prasad, the Maharani of Rewah had a preferential right to the Burma property and therefore the suit must fail. The plaintiff seeks to reply to this by showing that in the suit instituted in August 1914, against the plaintiff, the Maharani of Rewah claimed the whole Dumraon Raj from the plaintiff and that although her son, the present Maharaja Gulab Singh, was not a party when the suit was first instituted he was brought upon the record before the compromise decree. By the compromise both the Maharani and her son gave up all claim to the Dumraon estate. It is contended by the plaintiff that so long as this decree stands neither the Maharani nor Gulab Singh can challenge the plaintiff''s title.

The defendants'' reply that the decree in question is a nullity in so far as it purports to deal with Gulab Singh''s interest for he was then a mere reversioner whose chance of succession could not form the Subject of any bargain. I think if the decree so far as Gulab Singh was concerned was a nullity, the argument of the defendants would prevail. But in my opinion the decree has to be shown to be a nullity and for aught we know there may have been many circumstances proved at the trial of the Rewah suit which would make the decree voidable and not void; for instance, the Maharani may have been representing the whole estate, or the compromise may have been for the benefit of the estate and not for the personal advantage of the limited owner or there may have been legal necessity.

I think that as the defendants do not claim through the Maharani of Rewah they are not entitled to challenge a decree which is voidable and not void.

It was contended by the learned Counsel for the appellants that if Section 10 of the Indian Limitation Act does not apply then Article 142 applies and that the plaintiff cannot rely on Articles 140, 141 and 144. It is true that the manner in which the plaint has been drafted assists this argument; for the plaintiff did not in the plaint rely upon his title as reversioner at all. His case was that his predecessor was in possession of that property through his servants and Jai Prakash was a Benamidar and that he had been dispossessed by Jai Prakash. It was only when the matter came to be discussed by reason of the defendants'' asking for particulars that a case of trust such as is contemplated by Section 10 of the Indian Limitation Act was disclosed. The plaintiff''s present case is that Jai Prakash was not a mere name-lender and that Radha Prasad was never in direct possession and that this is not a case for recovery of possession after dispossession or discontinuance of possession. Whatever may be said of the earlier stages the parties have gone to trial on a case of trust and it is too late now to seek to apply Article 142.

My view of the case is that the plaintiff is entitled to the benefit of Section 10 of the Limitation Act and to recover the Burma property from the defendants as an accretion to the Dumraon Raj, but for two circumstances which stand in his way (1) the abandonment on the 11th December 1893, and (2) a settlement made with Hariji on or about the 20th August 1914. (His Lordship discussed the evidence relating to the settlement between the parties and in the course of the discussion observed.) The learned Judge has not hesitated to believe Mr. Sinha whenever he is in conflict with the plaintiff; but the reason he gives for not coming to the conclusion that there was a completed settlement is that Mr. Sinha was an unsatisfactory witness and that he talked too much. In his evidence I have been able to discover only one inaccuracy, namely where he stated that on his arrival in India in September 1914, he heard from Hariji that the Burma dispute had already been settled. On reading the whole deposition it is clear that this was a mistake.

But I can see nothing in the witness''s evidence which otherwise supports the finding of the learned Judge that Mr. Sinha''s memory is not to be trusted. Mr. Sinha was for some time a journalist and possesses a remarkable command over the English language and it is to be expected that he understands the meaning and effect of the words he has used and on his deposition as recorded, there can be no possible doubt that the plaintiff and the defendant were "ad litem" with regard to the settlement.

It is with great hesitation that an appeal Court differs with the trial Court on its estimates of witnesses whom the trial Court has had an opportunity of seeing; but where the opinion of the trial Court depends not upon the honesty of the witness, but upon reasons which the appeal Court cannot accept, it is obviously the duty of the appeal Court to record its disagreement with the trial Court and to set aside the findings of fact arrived at by him. (His Lordship again discussed evidence and observed.) The result is that on a careful review of the evidence given on this part of the case, I am satisfied that the plaintiff''s allegation that there were three completed contracts between him and the defendant made respectively in August 1914, November 1914, and May 1915, all of which were successively broken by the defendant cannot be accepted.

On the other hand, the contract alleged by the defendant, namely, that made on the 29th September 1914, and ratified between the 19th and the 21st November 1914, should be held to have been proved. It is a good defence to this suit and the plaintiff must fail.

I do not think there is any difficulty in regard to the law applying to this part of the case. The contract that in consideration for the money paid by Hariji the plaintiff relinquished all claim to the properties in Burma is a complete defence in this suit. The plaintiff cannot be heard to say that the consideration was bad.

The case of Stapilton v. Stapiltan 1 Atk. 2 is authority for the proposition that if an agreement is entered into upon a supposition of a right or of a doubtful right, it shall be binding. The compromise of a doubtful right is a sufficient foundation for an agreement. The case of Jordan v. Money 5 H.L. Cas. 185 has no application nor is it necessary for the defendants to have recourse to any principle of estoppel.

It was contended by the learned vakil for the respondent that it is necessary to show that specific performance of the contract could have been obtained in the Court of the Subordinate Judge at Arrah at the time when the present suit was instituted and the necessary requisites had been established by the defendants; possibly the objection might be a good one if it were necessary for the defendants to rely upon estoppel; but as they have founded their case only upon contract the defence is a good one.

The plaintiff''s claim to the properties in Schedules C and D set out in paragraphs 13 and 14 of the plaint which run as follows:

Para. 13:

The buildings and out-houses and other erections described in the said Schedule C. were constructed partly on khas land of the Dumraon estate and partly on pieces of adjoining lands purchased from time to time by the Raj in the name of the said Rai Jai Prakash Lal Bahadur for a suitable residence of the Raj Dewan, and the same was constructed, repaired and maintained solely at the expense of the Raj and the price even of furniture and cost of library in the building were also paid from the Raj treasury.

Paragraph 14:

The garden with buildings described in Schedule D, was laid out and built on khas land of the Raj and the adjoining pieces of land were purchased by the Raj in the name of the said Rai Jai Prakash Lal Bahadur and all costs of erections and laying out and maintenance of buildings and garden were also paid from the Raj treasury for use of the Diwan and guests of the Raj. The plaintiff states that said properties set out in Schedules B. C and D. formed and still form part of the said Dumraon Raj.

The cause of action is stated in paragraph 17 to be that defendants are now wrongfully asserting that they are entitled to hold possession of the properties in their own behalf and the relief claimed in paragraph 19 is possession of the said properties with mesne profits.

The learned Judge has declined to award mesne profits, but he has made a decree for possession and for an account of the sums expended by the defendants or their predecessor on the properties specified in Schedules C and D, such sums to be credited to the defendants. (His Lordship then discussed the evidence relating to the matter and continued.) The decree of the learned Judge, therefore, as to the lands in Schedules C and D will be set aside.

There remains the question of limitation. With regard to the house and garden, there is no question of accretion or trust. It is admitted that the properties are within the impartible Raj. It is alleged that Jai Prakash was in possession of these properties as a Raj Officer and after his death Maharani Beni Prasad was in possession as a Hindu female. The plaintiff, in order to show that the suit is within time, must apply Article 140 or 141, tint is to say, he must prove his title to succeed to Radha Prasad''s estate; his possessory title will not be enough. His suit must, therefore, fail.

The result, therefore, is that in my opinion the appeal should be decreed with costs in both Courts.

Foster, J.

I first deal with the appeal in respect of the property "B" of the plaint ordinarily described as the Burma property. (His Lordship in the course of his discussion on the facts and the evidence observed as follows.) It is important at the outset to have some clear principles as to the relevancy of the acts and declarations of parties in a complicated case like this. The learned Judge finds that Jai Prakash Lal after the end of 1893 bore the burden of the expenditure in developing the property. The result of that expenditure and the Maharaja''s previous expenditure was the grant of 1896. The grant itself by its covenants imposed, on penalty of forfeiture, a further heavy expenditure This was met by Jai Prakash Lal and his son the defendant. All this expenditure is in a sense the cost of acquisition, analogous to purchase money. But for that expenditure, property "B" of the plaint would not have been acquired or retained. So the cost of acquisition has in this case a double source, the Raj Treasury and Jai Prakash Lal''s purse. I take it that I am bound, in view of the high authorities which I shall presently quote, to hold that where the cost of acquisition is only in part traceable to the plaintiff, the Court should in the absence of an unambiguous criterion of ownership take into consideration

the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct including their dealings with or enjoyment of the disputed property.

This rule has its application to every important controversy in this ease. The effect of it is that there is no legal presumption on either side. I venture to borrow these principles from the judgments in Promode Kumar Roy and Others Vs. Kali Mohan Saha Pramanick and Others, ; Dalip v. Chaudhurain [1908] 30 All. 258 and Mt. Amiroonnissa v. Mt. Ashrafoonissa [1871] 14 M.I.A. 433. (His Lordship in continuing the discussion on the evidence observed.) One thing we do know that the day before the Maharaja made his grant by parwana of Rs. 25,000 Jai Prakash Lal in giving his instructions by letter to Lalluram Pande, the manager in Burma, as to the opening of experimental farms on the property, warned his agent that he, Jai Prakash Lal could not afford a rich man''s expenditure.

I take this to be part of the res gestae at the time when Jai Prakash Lal assumed control of the enterprise. I am using the words res gestae as signifying declarations and circumstances which constitute or accompany and explain the fact or transaction in issue, the formulated issues in this particular instance being Nos. 3, 4 and 5.

The whole correspondence of the month of May 1889, appears to me to be valuable as illustrating the motives actuating Jai Prakash Lal when he first assumed possession. It also explains the mental attitude when before that date he sent to Burma money from his own funds. (His Lordship then resumed his discussion on the evidence and then continued.) My conclusions, so far as the Burma property is concerned, are in effect much the same as the case presented by the defendant in his written statement.

Reverting to the plaintiff''s case, I doubt whether even as it stands it could be made in the circumstances now proved, the basis of a decree in a Court governed by principles of equity. Let us assume that there was the relationship of principal and agent between the Maharaja and Jai Prakash Lal in this Burma enterprise at its inception in 1889. Sir Ashutosh Mukherjee, in the course of his learned argument here on behalf of the respondent, stated what authority or mandate he wished us to apply to this agency: it was, he urged, a direction to Jai Prakash Lal to acquire for the Raj in his own name land to be colonized by tenants of the Raj in furtherance of the Government colonization scheme and he added that when Jai Prakash Lal in pursuance of the authority applied for and acquired land, that land became affected by a trust as soon as it had an existence legally recognizable by demarcation. If this agency be now assumed, we must not omit to take into consideration the firmly proved facts that in the latter half of 1893, the Maharaja notified to Jai Prakash Lal that he would spend no more money on speculation, being convinced that the trial of the last four years had proved it to be a bad investment, whereupon Jai Prakash Lal on the 11th December 1893, assumed responsibility for the financial burden in future, and thereafter he and his son put their own money, labour and skill into the enterprise, and bore the entire risk of loss.

These facts are concisely and forcibly summarised in paragraphs 9 and 21 of the written statement and in the latter paragraph there is a definite plea of estoppel:

For years this defendant and his predecessor-in-interest have borne the entire risk of loss and all responsiblities in connexion with the said speculation, and the said Maharani Beni Prasad Kuari as well as the plaintiff with full knowledge of all circumstances allowed this defendant and his predecessor to act as aforesaid as full owners, without claiming any interest therein; and in such circumstances the defendant submits that the plaintiff is estopped from alleging or contending that the Burma properties did not belong to the defendant.

In consequence of this plea the issues raised were:

12(a) Are the allegations made and contained in paragraph 21 of the written statement of the defendant Rai Bahadur Harihar Prasad true?

(b) If so, is the plaintiff estopped and debarred from alleging or contending that the said property does not belong to the defendant?

Such an issue as this is usually dealt with in treatises of law under the topic "Acquiescence". (Halsbury''s Laws of England, 13, pp. 166-168) or "Laches" (Lindley, on the Law of Partnership); but in my opinion it falls within the comprehension of Section 115 of the Indian Evidence Act. I am assuming the existence of an agency, and also assuming that the plaintiff is the heir and representative in this matter of Sir Radha Prasad Singh, Maharaja of Dumraon. On the facts taken as proved or assumed I state the case thus:

A authorises B, his agent, to take up a speculative business project and allots a sum of money for an experimental trial thereof. When after four years the money is exhausted, A refuses to furnish further expenses. B instead of relinquishing the project--as he might without consequent loss to himself or further loss to A--proceeds with it. After 12 years of heavy expenditure of money with a great risk of loss B, and after his death his son attain success, and the adventure becomes profitable. Twelve years after this, during which the profits have been increasing year by year, A''s heir comes into Court and claims the whole property with all past profits minus B''s capital outlay.

I am of opinion that the agency ceased in 1893 by the principal''s implied determination thereof, for I do not see how after a principal has refused to indemnify an agent in the future in a speculative business committed to that agent, that principal can be heard to say that the agency subsisted. Section 207 of the Indian Contract Act provides that an agency may be revoked by implication.

At any rate the agency was determined in this case by the principal''s death in May 1894. After this therefore there was no fiduciary relationship subsisting between the parties so far as the acquisition of the Burma leasehold which took place in 1896 was concerned. (I have already expressed the opinion that the duties of Jai Prakash Lal as executor did not extend to the Burma enterprise.)

The absence of a fiduciary relationship excludes such cases as Hart v. Clark 6 H.L.C. 633; where also, be it noted, the plaintiff from beginning to end insisted on his legal rights, though refusing to countenance his co-sharer''s method of raising the requisite capital. There was in that case no intention shown of abandoning the undertaking. I am also excluding as quite unnecessary for the purpose of this argument the English equity doctrine as to stale demands. As I said before, this question of estoppel can rest on Section 115 of the Evidence Act: when one person has by his omission intentionally permitted another to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed in any suit between himself and such person or his representative to deny the truth of that thing. The "thing" in this instance is the abandonment by the Maharaja of the Burma enterprise. After the 11th December 1893-I choose this date for certainty-Jai Prakash Lal considered that henceforth he and the Maharaja were strangers so far as the Burma enterprise was concerned; and that belief on the part of Jai Prakash Lal and his son was the natural result of the acts and omission of the Maharaja and his representatives.

After excluding the case of Hart v. Clark 6 H.L.C. 633, and cases which were dismissed expressly on the ground of stale demand such as Senhouse v. Christian 19 Beav. 356 referred to in Norway v. Rowe 19 Ves. 144, Prendergast v. Turton 13 L.J., Ch. 238, and Clegg v. Edmondson 8 De. G.M. and G. 787, I am left with such authorities as Cowell v. Watts 2 H.&T.W. 224, Jekyl v. Gilbert McNaughten''s Sel. Cas. Ch. 29 and Palmer v. Moore (1900) A.C. 293, which, as the learned Editors of the Eighth Edition of "Lindley on the Law of Partnership observe, are cases not so much of laches of estoppel or agreement to release.

These cases show abandonment either expressed or clearly implied by the acts of parties and in my opinion rest upon general principles of law, and in no way upon the special law of partnership. In Cowell v. Watts 2 H. and T.W. 224 the plaintiff and defendant agreed to take land for improving it and letting it upon building leases. A long lease was granted in the name of defendant. There was no written agreement of partnership. The defendant acted quite independently of the plaintiff, excluding the plaintiff''s cattle from the land; he mortgaged it and with the proceeds built upon it. The plaintiff though aware of all this did nothing. The suit brought after eighteen months was dismissed on the ground that the plaintiff had by his conduct induced the defendant to suppose that the plaintiff had abandoned the speculation and that defendant had the sole right to the land.

In Jekyl y. Gilbert McNaughten''s Sel. Cas. Ch. 29 two artificers joined in a work, and the customer refused to pay. The defendant requested the plaintiff to join in an action for their dues, but the plaintiff refused whereupon the defendant proceeded alone for his own dues and obtained a verdict. The plaintiff then claimed half of the amount recovered, but the Court held that he was not entitled to any share of it.

In Palmer v. Moore (1900) A.C. 293 a written notice by a joint-holder of a gold mining lease to his co-lessees that he was unable to contribute to the joint expenses and that they might do as they liked with the lease (which be it noted was in part his own contribution) was held to be an abandonment of the beneficial interest therein; and the subsequent working of the mine by one of such co-lessees out of his own resources was held to be an acceptance of such abandonment. In the first of these three cases there was wilful omission and no more; in the last two cases there was a definite act of refusal more formal in the third case than in the second. In all there was estoppel; in the last there was possibly also an agreement to release.

Applying these cases to the present case, I find a clear basis of deciding in the affirmative Issues 12(a) and (b) quoted above.

With regard to the rule in Keech v. Sandford [1726] SCas. Ch. 61 it is urged that the land taken by Jai Prakash Lal would even after the revocation of his agency in 1893 remain in his hands affected with a trust in favour of the Maharajah; and the grant would become trust property as an ingraftment thereon. In my judgment, even if the leasehold property ''B'' had been claimed by the Maharani in 1896, just after it came into being, a complete defence could have been made on the ground of abandonment and estoppel, resting as now upon the facts (a) the revocation of the agency, involving the countermand of a special trust to make an experiment in reclaiming certain land in Burma; (b) the acquisition thereafter of the leasehold by Jai Prakash Lal by dint of his open expenditure of time, labour and skill on the colony. So the rule in Keech v. Sandford [1726] Cas. Ch. 61 would not in the circumstances be applicable.

The question of limitation has to be discussed. For this issue I again assume that in April 1889, Jai Prakash Lal applied for land in Burma as the agent of the Maharaja. But I have found that no agency enured after the 11th December, 1893, or at any rate after the Maharaja''s demise in May 1894. The property ''B'' in suit is a lease-hold. Till it came into existence on the 13th March, 1896, it could not be the subject-matter of litigation and therefore limitation could not run. When on that date it came in to existence, no agency was subsisting. So it can never be said that property ''B'' was vested in Jai Prakash Lal as an express trust. A trust, if any existed, must have arisen out of circumstances other than the direct agreement of parties. It must then be a constructive trust, not exempt from limitation. The adverse possession of Jai Prakash Lal and his son could commence no earlier than the 13th March, 189(3, and at that time would avail against the Maharaja only; it would affect the plaintiff''s interest only from the Maharani''s death in 1907. The suit was brought in 1917.

There is therefore on these facts and assumptions, no bar of limitation. There is no claim in respect of the sum of Rs. 27,750 so possibly it is unnecessary for me to put on record my opinion that such a claim would be barred by Article 89 of the Limitation Act.

I find that the suit for Burma property fails; firstly because there is no cause of action, as the beneficial interest was from first to last in Jai Prakash Lal and his son; and secondly because, even if there was an agency, the facts pleaded and proved by the defendant establish an estoppel. As for the plaintiff''s right to sue, that, being a general question, will be considered later.

I come now to the question of settlement. It appears to me to be proved by the defendant''s own deposition, corroborated as it is by the admissions made before witnesses of very high credit, Sir Ali Imam, Mr. Sachhidananda Sinha and Mr. Justice P.R. Das, that the plaintiff in a private colloquy with the defendant in September 1914, at Dumraon promised not to sue for Burma property in consideration that the defendant should not sue the plaintiff for Rs. 2,21,200 then owed to the defendant; this contract was amplified in November 1914, at Dumraon before Mr. Sinha, when the plaintiff added a promise to execute a deed of relinquishment of claim in the form of Exhibit J., in which the consideration was expressed to be the defendant''s past services and financial aid in the Dumraon Raj adoption suit. (His Lordship then discussed the evidence and continued:--) I hold that the plaintiff''s suit is barred on the equitable ground that he for consideration made a promise to relinquish his claim to the Burma property.

I come now to the claim to the house and garden in Dumraon, properties C and D of the plaint. (His Lordship after discussing evidence, continued:--) I hold that the plaintiff has not proved his claim but without prejudice to further question whether these tenancies are subject to payment of rent.

One issue remains to be discussed whether the plaintiff has a right to sue. I find evidence that the plaintiffs the gaddinashin in possession, recognised by the Courts and by Government, and so is prima facie in a legal position to claim possession of all properties appertaining to the Dumraon Raj. I am using this term "Dumraon Raj" in the sense of the elaborate definition involved in the first three paragraphs of the will of Maharaja Sir Radha Prasad Singh. The claim in the plaint is based on the assertion that the properties in suit were acquired for the Raj by the last Maharaja, and possessed by him as Raj properties. This is a clear statement of assertion. But I find no satisfactory evidence that the Maharaja intended to amalgamate the property with the Dumraon Raj, apart from the question whether he acquired it at all. This link in the plaintiffs claim is missing, more especially in the case of the Burma property. The plaintiff in this respect has not shown a right of action.

In my opinion the appeal should be decreed with full costs of both Courts.