Somar Ram and Another vs Budhu Ram

Mohamad Noor, J.—This appeal arises out of an execution proceeding. The appellants in execution of their money decree against the respondent wanted to sell certain properties of his described in khewat No. 3/3 and shamilat khewats Nos. 3/4, 3/5 and 3/7 of village Ahardih in the District of Hazaribagh. The interest held by the judgment debtor according to the Record of Rights is ''dwami thica'', a peculiar tenure in Chota Nagpur. The judgment-debtor objected to the sale on the ground that his interest was not saleable. The executing Court, mainly relying upon the Sifton''s Settlement Report of Hazaribagh where the incidents of ''dwami thica'' tenures are mentioned, allowed the objection and refused to sell the properties. This order has been upheld by the learned Judicial Commissioner. The decree-holders have preferred this appeal.

Mr. G.C. Mukharji, who has appeared on behalf of the appellants, has attacked the order of the Courts below on the following grounds: (1) The nature of the tenancy makes it transferable and the custom of non-transferability has not been proved. The settlement report is no evidence of custom. (2) Assuming that the dwami thica is not transferable, the protection is for the benefit of the landlord, and not that of the tenant. This restraint on the right of transfer does not apply to involuntary transfers. At any rate the tenure should be allowed to be sold, leaving it to the landlord to question the sale if he likes. (3) Whatever may be the incidents of thica dwami in general, this particular tenure has lost its character of non-transferability as it has been transferred from time to time. At any rate the judgment-debtor is estopped from questioning the saleability of this tenure. I shall take up the grounds in the order in which they have been mentioned. Regarding the first point the argument of the learned advocate is this. Dwami thica is a property. All properties are saleable unless exempted from sale. Dwami thica has not been exempted by Section 60, Civil P.C. If the landlord has created a tenure, and imposed a condition of non-transferability the condition is void, unless it is for the benefit of the landlord. Even if the condition be for the benefit of the landlord, nevertheless the tenure can be sold subject to the right of the landlord to avoid it. He relied upon Section 10, T.P. Act, and on para. 232 of Sifton''s Settlement Report of Hazaribagh and contended that as the tenures of that district have in course of time become alienable no exception can be made in favour of the dwami thica which is a tenure. In order to determine the force of this argument it is necessary first of all to examine what a dwami thica is. The words "dwami thica" are not to be found in the leases of these tenures. It was introduced (if I may say so, coined) by the Settlement Department for a particular kind of tenure found in Chota Nagpur. This class of tenure has not been specifically dealt with in the Chota Nagpur Tenancy Act. When the settlement authorities found that there were tenure-holders who had non-resumable and heritable rights in their tenures and the rent was not fixed in perpetuity as that of mukarraridar, they called this class of tenure-holders "dwami thicadars". The incidents of such a tenure were considered in this Court in Tikait Krishna Prasad Singh v. Budhan Manjhi AIR 1928 Pat 481 where Macpherson, J. pointed out that the name ''thica dwami'' in the Record of Rights in Chota Nagpur is given to a cultivating tenancy which partakes largely in its origin and development of a raiyati character and is in fact a raiyati tenancy which has grown into a tenure. In para. 195 of the Settlement Report the learned author says:

The status of dwami in the Record of Rights has been restricted with a few exceptions not here material to cultivating tenancies which though they now must be interpreted as tenures partook largely in their origin and development of a raiyati character. They are in fact raiyati tenancies which have grown into tenures.

The same is the observation of another Bench of this Court in Jagdishwar Dayal Singh v. Bulak Mahto AIR1929 Pat 376. Therefore, it is clear that dwami thicas were at the time of their origin cultivating tenancies which under the peculiar circumstances of the locality have grown up into a tenure. The author of the Settlement Report has recorded on the basis of what he found in the locality that on account of the fact that they were in origin cultivating tenancies, they are by custom not transferable. The learned advocate, however, has contended that the Courts below were not justified in relying upon the Settlement Report for proof of the custom of non-transferability of the dwami thicas. He argued that the report could not be used in evidence unless the author of the report is examined. In my opinion, this argument is untenable. Mr. (now Sir James) Sifton, till recently the Governor of Bihar, was the Settlement Officer in the District of Hazaribagh. He was deputed by local Government to investigate and record the incidents of the tenancies of the district and the customary rights and liabilities of the holders thereof. His report, which is an official book, is admissible u/s 35, Evidence Act, as the statements in the report were made in discharge of an official duty, and preparation of the records was enjoined on him by law, that is, the Chota Nagpur Tenancy Act. Then Section 4.8, Evidence Act, enacts that:

When the Court has to form an opinion as to the existence of any general custom or right, the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed, are relevant.

Therefore, the opinion of the author of the Settlement Report about the custom of non-transfer ability of dwami thica is the opinion of an officer who made special enquiry into it and was likely to know the existence of the custom, the custom of non-transferability being connected with the origin and development of the dwami thica. The origin of tenure is also a matter of public history, and if the Court has to form an opinion in respect of the history of the tenancies in the district in general, it may u/s 57 (13), Evidence Act, resort to books or documents of reference. Settlement Report is certainly a book of reference. The learned advocate, however, relied upon Section 60, Evidence Act, and contended that if the author of the report formed an opinion about the existence of a custom he ought to have been examined; but there is a proviso to this section which is to the effect that:

The opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved, by the production of such treatise. If the author is dead, or cannot be found, etc., he cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

Then Section 32, Evidence Act, also provides that the opinion of any person on the existence of public right or customs or matters of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom, or matter had arisen, can be proved without calling the man who has made the statement if his evidence cannot be procured without such amount of delay or expense which the Court under the circumstances of the case considers unnecessary. Now the author of the report having investigated and studied the origin of tenures and the custom in respect of them was an expert on the matters he wrote in the report and at the time when the case was heard was occupying the position of the Governor of the province. It is obvious that calling him as a witness would have cost unnecessary expense. His opinion is expressed in a book which he had written in the course of his official duty under the orders of Government. The book is commonly offered for sale. Therefore the contents of the report are admissible without examining the author. This view was adopted by the Allahabad High Court in In Re: Shyam Lal Shah and Another . The learned advocate for the appellant, however, relied upon a Privy Council decision in Garurudhwaja Prasad v. Saparandhwaja Prasad (1901) 23 All 37, but there is nothing in the judgment of their Lordships which supports the contention that under the circumstances of the case the examination of the author of the report was necessary. I therefore, overrule this contention.

Now according to the Record of Rights the tenure in question is thica dwami. It has been held in this Court in the two cases I have already referred to that in their origin the tenancies were cultivating or raiyati tenancies. This opinion of the author of the Settlement Report has been accepted by this Court in the two cases referred to above. The report says that as a general custom dwami thicas are inalienable. This statement about custom must be accepted unless the contrary is proved and it was for the decree-holder to rebut the presumption of the Record of Rights about the tenure being dwami thica or to prove that the custom as recorded in the Settlement Report was not prevailing. This has not been done. It is true that a number of documents (about thirty-five) have been filed to prove that dwami thicas have been transferred. Eight of them relate to this village and I shall deal with them later. The remaining ones are in respect of other five or six villages. Almost all of them with one or two exceptions are of dates after the Record of Rights of the district was prepared. They do not disprove the custom. Nor are they sufficient to show that the custom of non-transferability of dwami thicas was broken. There is nothing to show that these transfers were recognized by the landlord as a matter of right. Both the Courts below have held that the decree-holder has not established the custom of transferability of dwami thicas and the finding is conclusive. Now Section 76, Chota Nagpur Tenancy Act, enacts that nothing in the Act shall affect any custom usage or customary right not inconsistent with or not expressly, or by necessary implication modified or abolished by its provisions. The non-transferability of dwami thicas is not inconsistent with any pro-vision of the Act and therefore that custom must prevail.

The next branch of the argument of the learned advocate was that the non-transferability is for the benefit of the landlord and therefore the restriction cannot apply to involuntary transfers. He relied upon a decision of the Calcutta High Court in Golaknath v. Mathura Nath (1893) 20 Cal 273. In that case the question for consideration was whether a covenant against transfer in a lease invalidates it in a case of involuntary transfer. It was held that it did not. It is obvious that this decision has no application to the present case where the non-transferability is not based upon any covenant between the landlord and the tenant but upon the custom based upon the nature of the tenancy itself. The learned advocate however contended that if the tenure was not transferable, it was for the benefit of the landlord and it was transferable with his consent and it was for him to object and not for the judgment-debtor. He relied upon the decision in Anundo Boy v. Kali Prosad (1884) 10 Cal 677 and the decision of the Privy Council in the same case reported in Kali Prasad Singh v. Anundo Roy (1888) 15 Cal 471. Both these decisions relate to ghatwalis of Kharagpur. The ghatwalis stand upon a different footing. They are service tenures and consent of landlord is necessary for their transfer as it is he who is by transfer deprived of the service for which the tenures were created. But nontransferability of dwami thicas is based upon custom which has grown along with the growth of the tenures themselves. As I have said, dwami thicas in their origin were cultivating tenancies which in course of time developed into tenures. It is unnecessary to enter into much debated controversy whether the cultivating tenancies were transferable under the custom of the country. An elaborate discussion will be found in a Special Bench decision of the Calcutta High Court in Chandra Binode Kundu v. Ala Bux Dewan. AIR 1921 Cal 15.

The fact remains that the custom recorded is absolute non-transferability) and, as I shall show, even the landlord cannot sell the tenure for arrears of rent but can eject the tenure-holder. It appears from the Settlement Report of Hazaribagh (para. 232 to which reference has already been made) that in Chota Nagpur at any rate the relation between the landlord and the tenure-holder was of a personal character and the tenancies were not transferable. They were granted for the purposes of reclamation and it is obvious that in such grants regard must be had to the position of persons who are most likely to develop the lands. As the author of the Report has pointed out, in course of time the civil Courts began to sell the tenures and now except where the custom has not been broken (as in the case of dwami thicas), the tenures are not transferable. The last argument of the learned advocate was that in this particular case this tenure has lost its characteristic of non-transferability; in other words, he contended that the custom has been broken. He relied upon a number of documents to show that the tenure in question had from time to time been transferred and the reason of non-transferability is no longer applicable. By the courtesy of the learned advocate for the appellant I have examined the khatians and terij of the khewats which are sought to be sold. The position is this:

Khewat No. Land in possession of Land in Possession Uncultivated Total. the tenure-holder. of raiyats. land. in acres. In acres. In acres. In acres. 3/3 3.02 .25 8.27 3/4 2.14 1.17 3.31 3/5 2.28 1.41 3.69 3/7 4.46 37.42 16.38 58.26

The argument of the learned advocate was that as there is a very small area of uncultivated land no question of development arose. The judgment-debtor therefore must be held to be an ordinary tenure-holder and his tenure was liable to be sold. First of all, as the khatian shows, there is still some uncultivated land in the tenure. Then it cannot be said that a tenancy, which at its inception was inalienable, has become so when the reason for its inalienability has disappeared. In Ashutosh Deo Ghatwal v. Bansidhar Shroff AIR 1928 PC 177 where it was urged that when the reason of non-sale ability of the ghatwalis of the Santal Parganas was no longer existing the ghatwalis could be sold and the maxim Cessante ratione legis cessat et ipsa lex was sought to be applied. Their Lordships observed:

The contention really amounts to a claim that a Court of law can inquire into the present utility of an ancient incident of tenure and annul it and its enjoyment by the ruling power, whenever in its opinion the incident has survived its usefulness. This is a matter of policy, and not of the interpretation of legislative instrument or of application of general law and is beyond judicial powers.

The next argument was that as there have been transfers of the shares of this particular tenure by the judgment-debtor himself, he is now estopped from raising the question of non-saleability of the tenure. Exs. A, A-4, A.5, B, B-I, C, C-1 and C-2 are documents showing transfers of different kinds of some interest or the other in the tenure. But these transfers in violation of the custom, which must be taken to be the law, cannot in any sense be said to have broken the custom, nor do they discredit the incidents of the tenure mentioned in the Settlement Report. The dwami thicadars are not the only persons who are interested in preserving the custom. There are the raiyats who may as well claim that their interest should not be jeopardized by the introduction of strangers as their immediate landlords. The landlord of the tenure is also interested, because under the Chota Nagpur Tenancy Act, when the interest of a tenant is not saleable, he is entitled to eject him (Section 59, Chota Nagpur Tenancy Act). A unilateral act of a tenure-holder cannot therefore destroy the incidents of the tenancy. No question of estoppel arises in this case. The most which can be said is that those transfers which have already been made and by virtue of which the transferees have taken possession of the land and have been recognized as such by the landlord should stand and the transferor and the landlord cannot turn round and question them. But in this particular case the tenure is sought to be sold in execution of a simple money decree. No doubt, the money claim, as it appears from the judgment of the suit in which the decree in execution was passed, was based upon mortgages, but we are not here called upon to enforce those mortgages but to enforce a simple money decree which was passed on the basis of those transactions. Furthermore even if we assume that the dwami tenures are transferable with the consent of the landlords there is nothing to show that the landlord has consented, and in my opinion it should not be sold when it is known that the title of the auction-purchaser will depend upon the pleasure of the landlord. I am therefore of opinion that the views of the Courts below are correct, and I dismiss this appeal with costs.