Raja Udaya Aditya Deb and Another vs Jadab Lal Aditya Deb

A. Hobhouse, J. 1. In this case the only appellant--the other plaintiff in the suit being the manager of the estate of the first plaintiff--is the Raja of Patkum, in Chutia Nagpur, and he is the son and successor of Raja Shatrooghun. The raj is admittedly an impartible raj, and one in which the custom of primogeniture exists. There is also a custom that the younger sons of the Raja are entitled to maintenance, the second being called ''hakim,'' the third, ''konwar,'' and the fourth and subsequent ''lals''; but the maintenance given according to this custom ceases with the life of the grantor, and has to be renewed upon a succession to the raj. 2. The late Raja Shatrooghun, during his lifetime, executed two instruments,--one being called a ''pon-baha'' mokurari patta, or permanent lease at a fixed rental granted in consideration of a bonus or fine; and the other a ''khorposh'' mokurari patta, or permanent maintenance grant. The pon-baha mokurar patta was the first, being dated the 30th April 1868, and is in these terms: ''This mokurari patta, on payment of bonus, is executed. Within my zamindari of Purgana Patkum, appertaining to the sub-district of Division Manbhum, the entire Mouza Kallianpore (being one mouza) as per boundaries given below, was previously fixed for your maintenance. Now, excluding it from that maintenance, I make a mokurari settlement of the above entire Kallianpore (one mouza) and jhimri (one mouza), with all rights appertaining thereto, in all two mouzas, with you, by means of a mokurari patta, and on receipt of a bonus of Rs. 1,200, and at an annual mokurari rental of Rs. 85-10-2-2-2." Then, after some further passages, it says: Neither I, nor my heirs, shall have any other right in those two mouzas beyond the above fixed mokurari rent." 3. The other instrument is dated the 30th November 1868, and is in these terms: "This mokurari patta for maintenance is executed. My second son and the future hakim, Keshub Lal Aditya Deb, deceased, having died, and you being at present the second of my sons, you will, according to the special rule of our rajdhani, become the hakim on my death. A gift was, therefore, made to you before of one Mouza Doodri, one Mouza Chamda, one Mouza Laya, one Mouza Kallianpore,"--and so on, naming other mouzas, in all eight--"without any title-deed, and for your maintenance as hakim, and you are in possession of those mouzas. Now, considering it proper to execute a deed in respect of seven of the above mouzas except Kallianpore, I execute a deed for the remaining seven mouzas aforesaid with the exception of one Mouza, Kallianpore. You shall continue to possess and enjoy the rights appertaining to the seven mouzas aforesaid, lying within the following boundaries, by right of maintenance, during your lifetime." Then after some other passages--"I made a gift of Mouza Kallianpore for maintenance. I have excluded that Mouza Kallianpore, and granted you a mokurari settlement of the same along with Mouza Jhimri by a separate deed, and on another date, i.e., the 19th Bysack of the present year." These two instruments were given to the respondent, who was the half-brother of the appellant, and had been the third son of Raja Shatrooghun; but, in consequence of the death of his brother, had become, when the instruments were executed, the second son and the future hakim. 4. It is to be observed here with reference to the intention of these instruments, that Kallianpore had, as is stated in the latter, been originally given for maintenance, but it is withdrawn from that gift and is included in the other mokurari with the Mouza Jhimri, showing that Kallianpore was no longer intended to be for maintenance, and that the instrument of the 28th April 1866 was not intended by the Raja to be of the nature of a maintenance grant, but was intended to be a gift, or, as he thought it would be safer to make it on the face of it, a mokurari for consideration. 5. The suit is brought by the eldest son, the present Raja, to set aside both these instruments, and for possession of the mouzas included in them. The lower Courts have found that the instrument of the 30th November 1868, which is described as being a mokurari patta for maintenance, ceased to have effect on the death of the grantor, Raja Shatrooghun; and there is now no question with reference to that part of the decision of the lower Courts. 6. The question in this appeal arises upon the instrument of the 30th April 1868, and it is contended that the estate being impartible was inalienable--as their Lordships understand the argument--by reason of such impartibility; and further that, there being the custom to give maintenance, this instrument was in reality for the purpose of maintenance, and consequently subject to the limitation, which is part of the custom, that it could not remain in force beyond the life of the grantor. 7. Now it is important to see what has been found by the lower Courts upon this subject. The Deputy Commissioner has said: "With regard to the mokurari patta, I hold that plaintiff has failed to prove that the granting of it was contrary to family custom. An attempt has been made to show that the deed should be thrown out, because it is more than doubtful whether the consideration recited in it ever passed; but I agree with the defence that such shifting of the plaintiff''s claim cannot be allowed. I have not a shadow of a doubt that the late Raja did grant the deed to the defendant; plaintiff himself does not deny it. But whilst I cannot allow the shifting of the claim, I hold that the fact, if fact it be, and I believe it to be a fact, that the consideration of Rs. 1,200 did not pass, is a valuable piece of evidence. If no consideration passed, does it not prove that the late Raja was not sure of his ground? It seems to me he felt that he was going somewhat near a breaking of a family custom which the Courts might possibly not allow, and therefore he wished to give a business look to the transaction and pretend to take a consideration. If I am right, what was the family custom? I think that referred to by Reg. X of 1800, that a zamindar, such as plaintiff unquestionably is, succeeds to all that his father cannot by such custom alienate. So far as the evidence goes, I am of opinion that even if Shatrooghun had made on paper, what I believe he made in fact, a present of the mokurari lease to the defendant, the plaintiff could not have set the deed aside." This shows the Deputy Commissioner considered that, although it had not been proved that the consideration passed as stated in the instrument, a gift of the lease was in fact made to the defendant. Further on he says: "It appears to me that the right to alienate land in Patkum has been proved, and therefore that the mokurari grant must stand. The granting of a mukurari is a favour on the part of the grantor, the obtaining of maintenance is a right on the part of the grantee; and the Courts of this district have been in the habit of laying down what maintenance any particular member of a zamindar''s family shall be entitled to recover." Here, therefore, we have two distinct findings: one that this was intended to be a present to the defendant, the respondent; and the other that there was a right in this raj to alienate land. 8. The case then went by way of appeal to the Judicial Commissioner, and he agreed with the Deputy Commissioner in the finding as to the consideration. He says: "There is no doubt whatever, as the lower Court holds, that the receipt of the Rs. 1,200 by the grantor is a complete fiction, and that the transaction was not a business one, but a simple gift to defendant. But then the question arises what was there to prevent the Raja from making a mokurari to the defendant in the same way as he might to a stranger, even if no pun (consideration) passed?" Further on he Says: "I think I ought to confirm the decision of the Deputy Commissioner. The general power of alienation on the part of the late Raja being, I think, established, and the mokurari patta being undoubtedly genuine and registered, it lies with the plaintiff to show its invalidity; and this he has attempted to do by maintaining that it is contrary to family custom." And in a later paragraph he says,--"That custom has not, I think, been shown to be opposed to the mokurari." Therefore, the Judicial Commissioner quite concurs with the Deputy Commissioner in the findings of fact. 9. When the case came before the High Court, the Judges pointed out that it was necessary for the plaintiff, in order to succeed, to show that there was some custom which would prevent the operation of the general law which would give a power of alienation; and they said that the only custom proved was, that the estate descends to the eldest son to the exclusion of the other sons, and that, instead of there being proof of a custom against alienation, what evidence there was, showed that alienations had been made. 10. Upon those findings the question whether the mokurari patta is valid or not seems to be concluded. It could only be impeached either upon the ground that it was really intended to be a maintenance grant, and so would cease at the death of the grantor, or that, either by law or by a family custom, there was no power to alienate any part of the raj. It seems that there have been some decisions in India in which it was considered that there was not a power of alienation in zamindaries of this kind. But one of those decisions came before this Board in the case of Anund Lal Singh Deo v. Maharaj Dheraj Guru Narain Deo 5 Moore''s I.A. 82 and there their Lordships considered that the inalienability of the zamindari was a matter to be proved; and as it appeared to them that it had not been sufficiently established, they proceeded to consider whether or not the grant that had been made was for maintenance. They certainly did not consider that, as a matter of law, the impartibility of the raj made it inalienable, but their Lordships treated the question of inalienability as one depending upon family custom, which would require to be proved. Here the findings are very distinct that there is no such custom in existence with reference to this raj; and their Lordships, therefore, are of opinion that the judgment of the High Court is a correct one, and they will humbly advise Her Majesty to affirm it and to dismiss the appeal.