Rajah Sheo Pershad Singh vs Mussumat Bilasmoni Dasi and others

Richard Couch, J. 1. This is an appeal from a decree of the High Court of Calcutta whereby the decree of the Subordinate Judge of Bhaugulpore was reversed, and the Respondent the Plaintiff in the suit was awarded possession of mouzah Bhalwana with mesne profits thereof from the 22nd of August, 1876, together with interest and costs. 2. Mouzah Bhalwana is situate within and forms part of pergunnah Gedhour, the Respondent''s ancestral zemindary. On the 21st of February, 1798, a pottah was granted by the government to Rajah Gopal Singh and Rajah Bharat Singh, therein described as zemindars of pergunnah Gedhour, in which it is stated that the annual consolidated jumma of the said pergunnah, inclusive of the ganjats, markets, bazars, all sayers and motahariffas, and also of rent-free lands held under sunnuds and without sunnuds, had together with the fee of kanoongoes, been fixed and assessed permanently at sicca Rs.1501 from 1205 Fusli. In the register of pergunnah Gedhour for the year 1205 Fusli, the gross proceeds of mouzah Bhalwana are entered as Rs.6.3a. 10p., and the sudder jnmma as Rs.4. la. 5p., and it is not disputed that at that time it was almost wholly in jungle and unprofitable. It appears from the thakbust map which was prepared in 1846 that the entire area of the mouzah is 7500 bighas, of which 3000 were then under cultivation. 3. On the 28th Kartick 1206 Fusli, corresponding with the 21st of November, 1798, Rajah Gopal Singh granted to Roghunath Singh, the father of the Appellant, RamLatt Singh, a pottah in the terms following:

I have acquainted myself with the contents of this. The stipulation of pottah granted on receipt of kubulyut to Roghtmath Singh, mokurruri ijardar of mouzah Bhalwana, appertaining to pergunnah Gedhour, in the sircar and province of Behar, on behalf of Rajah Gopal Singh, is to the effect and purport following: Whereas the mokurruri ijara potta of the said mouzah is granted from 1206 F. S., at a consolidated jumma specified below, inclusive of malikana, subject to no objection or excuses on the score of calamities of weather, together with fisheries and fruit trees; with the exception of abkari and toddy gunjes, bazars, kauts, all sayer, mothurfa (taxes levied on professions), lakheraj lands, covered by sunnuds and not covered by sunnuds, rosum of rosumdars, daily allowances of rozanadars, and chandas of chandadars; the above-named person should, with ease of mind, make cultivation and improvement, pay the above amount year after year, crop season after crop season, instalment after instalment, as per kistbundi, in full, into the treasury of this Sircar (Rajah) raise no objection whatever on the score of drought, inundation, hail storms, deaths and desertions, but himself bear the losses arising therefrom. In addition to the above jumma, whatever profits may be derived from salutary improvement in cultivation by him shall belong to the mokurruridar, the Sircar having nothing to do with the same. In case of non-payment of instalments agreeably to the kistbundi, month after month, the mutsuddis of the Sircar shall have authority to realize the arrears by sale of the goods and chattels of the above-named, to send sazawal or attaching officer to the said village, and make and receive the collections. The expenses of entertaining sazawal, tehsildar, and others shall be borne by the above-named. He should keep the tenants of the said village satisfied and contented by his good treatment, and make collections from the tenants according to order of government, agreeably to pottas of nukdi and bhowli lands to be granted to them, and never demand any sum in excess. He should not in any way commit oppression upon tenants, so that they may be able to stand to their engagements, and he should not oust them until the determination of their leases. He should grant receipts to the tenants upon payment of rent, instalment after instalment. He should not give a single span of land in the said village without asking permission and without consent of the huzoor, nor resume any previously granted without the orders of the huzoor. Should the said lakheraj lands be hereafter resumed under orders of the huzoor, and the huzoor be pleased to make a settlement of the rent thereof with the ticca mokurruridars, then the above-named shall pay the rent thereof according to the settlement to be made by the huzoor. He should not suffer a single span of the land on the limits and boundaries to pass and to be included in the boundary of others. Should it so happen he should of his own accord inform the Sircar of it, have the matter settled with the aid of the Sircar, and maintain and preserve the boundaries and limits of the said mouzah. He should not allow thieves and padders to settle within the estate leased to him. God forbid! should anybody''s property be robbed and plundered he should trace out the thieves and robbers with the property, and produce them before the thanadar or the district authority. Should the thanadar apprehend the robbers and apply to him for aid, he shall forthwith afford assistance to him. He should bring without fail to the notice of the huzoor whatever property may be found belonging to dead persons, or that is deserted or lying buried under ground, without heirs to claim it. He should act in strict conformity with the orders already passed or to be hereafter passed by the huzoor for regulating settlement of rent with tenants and malguzars of all classes, and should never raise any excuse or objection whatsoever. He should not demur or put forward any excuse in this, and should act up to the above. Rent for four years to be paid without any objection or excuse. " Rs.24. Rs. " For 1206 Fusli. . . . 6 " 1207 " . . . . 6 " 1208 " . . . . 6 " 1209 " . . . . 6 Uniform rent from 1210 Fusli to be paid year after year, crop season after crap season, without any objection or excuse, sicca Rs.25 current in the province. One half of which is Rs.12. 8a. Dated 28th Kartick 1206 Fusli. 4. Roghunath Singh executed a corresponding kubalyut bearing the same date. 5. The other Appellants are the representatives of the Defendants in the suit who derived their title from Roghunath Singh and denied the Plaintiff''s title; and no question is raised in this appeal as to their derivative title, nor as to Rajah Bharat Singh not having joined in the pottah. 6. On the death of Rajah Gopal Singh in or about October, 1812, his son Rajah Jeswant Singh declined to receive the rent of mouzah Bhalwana, alleging that his father had taken possession thereof at the end of the year 1219 Fusli under Regulation VII. of 1799, and that a fresh pottah had been granted to Roghunath Singh for eleven years from 1220 Fusli, at the yearly rent of Rs.51. Thereupon summary proceedings were taken by Roghunath Singh to compel the Rajah to receive his rent at the old rate, the result of which was that Jeswant Singh was referred to a regular suit if he desired to substantiate his allegation. 7. On the 13th of February 1821, Rajah Nawab Singh, the younger brother and successor of Jeswant Singh, who had died in the previous year, brought a suit in the Court of the Registrar of Mtmghyr against Roghunath Singh and his surety to recover the rents then due for mouzah Bhalwana under the alleged lease for eleven years. In his answer Roghunath Singh asserted that he held under the pottah of 1798, and denied the eleven years'' lease. And the district Judge, by a decree made on the 9th of January, 1826, on appeal from the decision of the Registrar, directed that Roghimath Singh should remain in possession in accordance with the pottah of 1798, and pay the rent therein reserved. 8. In 1869 the Respondent succeeded to the zemindary, and on the 24th of July, 1875, Roghunath Singh died. This suit was brought on the 22nd of August, 1876, and the only question in the appeal before their Lordships is whether the pottah is a lease for life or in perpetuity. 9. Their Lordships were referred by the learned Counsel for the Respondent to several cases in the late Sudder Court in which it was ruled that a lease at a fixed rent without more did not import perpetuity, and that to create a perpetual lease the addition of the words " from generation to generation," or other words importing perpetuity, were necessary. 10. On the other hand, it was held by the High Court at Calcutta, in a case of ghatwallee tenure, where the words " mokurruri istemrari " were used, that the holding was perpetual 3 Suth. W.R. 84: 5 Suth. W.R. 101. But this Committee, on an appeal from that decision, held that these words might mean either permanent during the life of the person to whom the grant was made, or permanent as regards hereditary descent 13 Bong. Law Rep. 133. 11. In the present case the word " istemrari" is not used. The instrument is called " the mokurruri ijara pottah," and their Lordships, in the case of the Bengal Government v. Nawab Jafir Hossein Khan 5 Moore''s Ind. Ap. Ca. 498., stated their opinion to be that though " mokurruri " might import perpetuity, that was not the necessary meaning of the word. 12. The question then is, whether the intention of the parties is shewn by the other terms of the instrument, the circumstances under which it was made, or the subsequent conduct of the parties, with sufficient certainty to enable the Courts in the absence of words importing perpetuity to pronounce that the grant was perpetual? The Subordinate Judge held that the pottah was intended to be hereditary, because it appeared that the mouzah was covered with jungle when the mokurruri was granted, and that it had since been brought under cultivation through the exertions and labour of the original mokurruridar and his representatives, and therefore it might, "consistently with the principles of equity, be presumed that the lessor and lessee must have thought at the time that the lease in question should be granted in perpetuity, because it is void of reason to suppose that the lessee should have taken the lease for his life, and brought it under cultivation at heavy expense and through great exertion." As to the subsequent conduct of the parties, he said that if the representatives of Gopal Singh " had considered the lease as one for life, they would have never adopted such steps as were incompatible with. their position and dignity to cancel such life interest as was thought by themselves to last only for a few days, and Roghu-nath Singh himself would not have described the mokurruri as a permanent one." Their Lordships are unable to see the force of this observation; but it appears from it that the Subordinate Judge did not fail to consider everything that he thought might shew the intention of the parties. It is therefore to be remarked that he did not refer to any of the provisions in the pottah or of the words used to express them. Apparently he thought they did not shew any intention that the pottah was to be perpetual. 13. The High Court agreed with the Subordinate Judge that the lease was granted with a view to the improvement of the mouzah, but thought that this did not shew it was intended to be hereditary, and referred to some of the provisions which they said seemed necessarily to imply that a substantial interest in the property remained in the .Rajah, and were quite inconsistent with his having permanently parted with that interest. Their Lordships do not concur in all the views taken by the High Court of these provisions, but on the other hand they do not find in them sufficient to shew an intention that the lease should be permanent. They are consistent with either intention. 14. A case in the High Court at Calcutta, printed in the Record was referred to by the learned Counsel for the Appellants, in which Mr. Justice Mitter said,--" We do not find it usual that tenants taking upon themselves the trouble and outlay for clearing and reclaiming jungle lands are contented with anything short of hereditary interest in them." But the judgments of the learned Judge and the lower Court are expressly stated to be founded upon the fair construction of the terms of the grants, and the surrounding circumstances attendant on the execution of them, as well as the conduct of the Plaintiff in connection with that and similar other tenures in his zemindary. The learned Judge only refers to what is usual as a circumstance which supports his view. 15. Their Lordships would repeat what was said by this Committee in Baboo Dhunput Singh v. Gooman Singh 11 Moore''s Ind. Ap. Ca. 465, where it was proved that the hereditary character of the pottah had been recognised by the successive zemindars. " If, on the one hand, it is improbable that the grantee should undertake such an obligation without some fixity of tenure and some assured and permanent interest in the lands, it is, on the other hand, equally improbable that the grantor should part for ever with all his interest in the improveable value of the lands." 16. As the Appellant is unable to point to any words in the pottah importing perpetuity, it appears to their Lordships, upon a consideration of the object of the pottah and its language and provisions, as well as the surrounding circumstances, that the intention to grant a perpetual lease does not sufficiently appear, and they are therefore unable to say that the decision of the High Court is not the right one. They will, therefore, humbly advise Her Majesty to dismiss the appeal, and the costs thereof will be paid by the Appellants.