Tarini Charan Ganguli and Others vs John Watson and Others

Markby, J.—This was a suit brought to recover possession of a share of two zamindaries, called Pergunna Bogri and Taraff Bihala, under the following circumstances:

These zamindaries belonged to a family of Mookerjees. At some time prior to the year 1243, that family consisted of three brothers and three sisters, and on a partition the Bogri Pergunna became vested in two of the brothers, Shambu Chandra and Ram Narayan jointly, in equal shares, while Taraff Bihala became vested in Shambu Chandra alone. Shambu Chandra died, leaving a widow and several children, namely, Jagat Chandra, Paran Chandra, Mahes Chandra, Haris Chandra, Kali Chandra, and Sriman Chandra. Paran Chandra died in 1247, leaving a widow Brahmamayi, and a daughter Dakhina, who married the plaintiff Tarini Charan Ganguli, and by him had two sons, Chintamani and Umamani. Umamani is dead, and is represented by his father Tarini Charan. Chintamani and Tarini Charan are plaintiffs in this suit; and it is not disputed that by inheritance a 2-anna, 13 gandas, 1 cowri, 1 krant share in the two zamindaries is vested in these two plaintiffs.

In the year 1243 Ram Narayan borrowed a sum of money from his brother Shambu Chandra and other members of the family, and on that bond Shambu Chandra and his co-creditors in the same year obtained a decree. On the 8th of Bhadra 1244 Shambu Chandra being then dead his sons granted to Messrs John and Robert Watson a patni talook in an 8-anna share of Bogri Pargunna, and in the whole of Taraff Bihala by two separate instruments. On the 22nd Aswin in the same year, Ram Narayan granted a patni talook of his 8-anna share in Pergunna Bogri to his three sisters and another lady. In Falgun Shambu Chandra attached Ram Narayan''s share in the zamindari in execution of the decree upon the bond. In Chaitra the four ladies above mentioned sold their interest in the patni talook to John and Robert Watson, Ram Narayan assenting to the transfer and promising to confirm it. Accordingly, on the 26th of Chaitra, Ram Narayan granted to the Watsons a patta and took a kabuliat in respect of his interest in Pergunna Bogri.

In the year 1246, under the decree obtained upon the loan to Ram Narayan, the creditors, i.e., the brothers and other members of Ram Narayan''s family, attached and sold Ram Narayan''s share of the Bogri pergunna zamindari, and the creditors themselves, amongst whom one was Paran Chandra, the father of Dakhina, became the purchasers of the property at the auction-sale.

Immediately after the sale in execution the purchasers took proceedings in the Supreme Court to eject the Watsons, but those proceedings failed. Matters then appear to have remained quiet till the year 1255, when the purchasers at the execution sale brought a suit in the mofussil against Messrs. Watson and other persons, the object of which was to get rid of the patni patta of the 8-anna share of Bogri Pergunna granted by Ram Narayan to his sisters and the other lady, as well as that granted to the Watsons, on the ground that they were collusive transactions intended to defraud creditors, and to get possession of the property. The Principal Sudder Ameen, (Mr. Mackay) who heard the suit, gave the plaintiff a decree for possession of 8-annas of Bogri Pergunna, declaring the pattas to be invalid.

The Messrs. Watson appealed, and on the 27th Aswin 1257 (10th July 1850) a compromise was entered into by Rebert Watson for himself and as representing the estate of John Watson who had died during this litigation. The compromise is contained in two documents in the form of patta and kabuliat. The patta is granted by Jagat Chandra, Mahes Chandra and Sriman Chandra, on their own behalf; by Jagat Chandra and Mahes Chandra "as guardians on behalf of Kali Chandra Mookerjee, deceased, and Srimati Dakhina Debi," she being then a minor; by Mahes Chandra as agent on behalf of the minor sons of his brother Harris Chandra; and by Srimati Soudamani Debi, the mother of Kali Chandra. It is addressed to Robert Watson far himself and as administrator on behalf of the late John Watson. It recites the sale by the Sheriff, the ejectment suit in the Supreme Court, the suit in the Principal Sudder Ameen''s Court, and the appeal. It then recites that the parties had determined to settle the matter amicably by Watson paying rupees 1,500 over and above the patni jamma fixed by Ram Narayan, which patni the Mookerjees affirmed at that rent; that the parties had filed a razinama and safinama to this effect, and bad arranged to execute a patta and kabuliat in due form. The parties above-mentioned then proceeded to grant and confirm to Robert Watson patni talook of Ram Narayan''s share in the Bogri Pergunna. The corresponding kabuliat is executed by Robert Watson "for self and as administrator of John Watson."

The plaintiffs Tarini Charan and Chintamani, prior to this suit, granted a patni talook of all their share in the two zamindaries to Lachmipat Singh Roy who joins in this suit as plaintiff.

The grounds on which the plaintiffs claim to recover possession of the land now in the possession of the defendants or: first, as to the whole, that the patni talooks granted on the 8th Bhadra 1241 of Taraff Bihala and of Shambhu Chandra''s 8-anna share in Bogri Pergunna, as also that granted on the 27th Asar 1257 of Ram Narayan''s 8-anna share in Bogri Pergunna, were all for life only. Secondly, as to Ram Narayan''s 8-annas share in Bogri Pergunna, that the compromise of 1257 was a collusive one, made by Robert Watson with persons who had no title, and that the exchange of patta and kabuliat was also collusive, and made by persons who were strangers to the property. Thirdly, that the pattas of 1244 prohibit alienation, and the defendant''s title only accrued as purchaser.

Nineteen issues have been raised in the Court below: issues 1, 2, 3, 4, 5, 7, 8, 9, 10 and 19, were found in favor of the defendants, establishing that the pattas of 8th Bhadra 1244, 22nd Aswin 1244, 26th Chaitra 1244, and the 27th Aswin 1257, passed to the grantees in each case a perpetual alienable tenure, and that the defendants had a good title by purchase to a patni talook in the whole of both zamindaries. And further that, even if that were not so upon the construction of the documents themselves, the tenures must now be considered transferable and hereditary by reason of the conduct of the parties.

Against this judgment the plaintiff appealed, and three points have been argued before us on the part of the appellants. First, that the patni talooks granted by the pattas of 8th Bhadra 1244 and 27th Aswin 1257, are for life only. Secondly, that the tenures created by those pattas, as well as by the patta of the 22nd Aswin 1244, are not alienable. Thirdly, that the compromise of the 27th Aswin 1257 was not binding on the plaintiffs Tarini Charan, Chintamani, or persons claiming through them. It was admitted by the appellants that the patni talooks granted by the pattas of the 22nd Aswin 1244, and the 26th Chaitra 1244, were hereditary.

With regard to the first point, we intimated to the Advocate-General, in the course of his argument, that we should not trouble him upon that point. We concur with the Judge in thinking that the term "patni talook," prima facie, imports a hereditary tenure. We know of no instance in which the term "patni talook" has ever been applied to an interest which is to last for the life of the grantee only. We doubt if a single instance could be produced in which the term has been so used. As an instance in which the word is used in a very marked manner as implying ex vi termini heritability, we may refer to the case Dayaram v. Bhobindur Narayan (1806) S.D.A. 1 Sel. Rep. 139 : 6 I.D. (O.S.) 137, where the plaintiff claimed a "talook," but the Court held that he had only a "maurasi izara." There is a note appended to this case by Sir W. Macnaghten, in which he says, "a talook and maurasi izara, though both hereditary, differ in some important points."

We also think that this inference which arises from the use of the word "talook" is strengthened by the addition of the word "patni." Patni talooks, throughout Bengal owe their validity entirely to Regulation VIII of 1819, and we think it quite a legitimate inference that when these parties used the words "patni talook" and referred to that Regulation they meant to describe an estate of the same general nature, and with the same general qualities, as the patni talooks described in that Regulation, one prominent feature of which is that they are hereditary. We do not hold that anything in that Regulation prohibits or impedes a zamindar from granting a tenure which is not hereditary; nor do we derive the heritability of the tenures now under consideration from any legislative enactment in that Regulation. We refer only to the preamble as snowing what in the common understanding of persons acquainted with such matters, and in the ordinary use of language is meant by the expression "patni talook," and we have no doubt whatever that when a man grants a "patni talook" he clearly means a heritable tenure. If he intends to grant anything else the term would be misapplied: and nothing but an express declaration that a heritable tenure was not intended would be sufficient to show that the term was used in so exceptional a sense.

Reference was made by the appellants to Regulation I of 1815, and Regulation III of 1825, but we hardly see how those Regulations apply. These are Regulations which relate to the resumption of tenures by the governing power. They merely lay down the extent to which and the conditions under which the Government will exercise its right of resumption. If they were to be considered as laying down general rules of construction, the absurd consequence would follow that the words "maurasi istemrari" would create a life-tenure only.

A case was also referred to Mussamut Burnee Khanum v. Modhco Soodun Doss 3 W.E., Act X, Rul. 127, which was said to afford an instance of the application of the term "patni talook" to a grant for ten years only. But clearly that is not so. In that case a great number of persons were holding dependent talooks which had been created in a zamindari subsequent to the permanent settlement. The zamindari was sold for arrears of revenue, and purchased by the Government, and the talooks tenures became thereby liable to be cancelled. Every effort was made by Government to come to an amicable arrangement with the talookdars, and the Government (as found by the Court) whilst negotiating this arrangement, made a temporary settlement for 10 years with the talookdars. It is obvious that when the persons with whom this settlement was made are described as talookdars, that it is not in respect of this temporary settlement, but in respect of their previously existing tenures, which never were cancelled, and which the purchasers of the zamindari from Government were in this very case compelled to acknowledge.

As to the second point, there can be no doubt that a tenure in the nature of a patni talook is by its very nature alienable. Though of course we do not mean to deny that the relation of landlord and tenant exists between zamindar and talookdar, it has scarcely any analogy to the ordinary one of landlord and tenant. The zamindar parts with all control over his property, and all right in it except to an annual rent which has been likened to what in England is called a quit rent. The interest of the zamindar only requires that the talook should be kept whole and entire, so that his security for the rent may not be diminished; there is nothing in the smallest degree partaking of a personal character in the relation between him and the talookdar.

Indeed, it was hardly contested that some special restriction was required to prevent the talookdar from alienating, but certain words have been relied on in these pattas for that purpose. In the patta of 8th Bhadra 1244, granting a patni talook of Shambu Chandra''s 8-anna share of Pergunna Bogri to the Watsons, we find the words "you shall not sell or grant in gift the aforesaid mahals or lands of our talook, nor make an application for transfer. It will remain attached to our zamindari, and the rent will be discharged by you." In the patta of the same date, granting a patni talook of Taraff Bihala, the words are "you shall not of your own authority convey the said mauzas by gift or sale no apply for transfer. They shall remain attached to our zamindari and yon will discharge the malguzari." No similar clause is to be found in the pattas which relate to Ram Narayan''s share of Pergunna Bogri, with respect to which therefore this question does not arise.

We agree with the District Judge, that these clauses were inserted, not to prevent alienation of the entire patni talook as such which could in no way affect the interests of the zamindar, but to prevent any alienation of portions of the land, whereby in case of default in payment of the patni rent, doubts might arise as to what was and what was not liable to be sold for arrears.

We decide this question in the terms in which it has been raised, but we do not thereby intimate our opinion that, even if alienation were prohibited, the tenure would in this case have been forfeited to the zamindars. That question has not been raised, and we express no opinion upon it.

The third question affects only the 8-anna share of Pergunna Bogri which belonged to Ram Narayan. If the patni talook created by Ram Narayan could be got rid of, a 2-anna 13 gandas 1 cowri 1 krant share in that zamindari was vested in Dakhina Debi as widow of her deceased husband Tarini Charan. When the compromise was effected in 1244, she was a minor and had a son, the plaintiff Chintamani. It is contended by Mr. Montriou that the patni talook created by Ram Narayan having been then declared invalid, that share was then well vested in her, and the document of the 27th Aswin was in fact a conveyance of her interest in that share to the Watsons. It is admitted that by her subsequent acts Dakhina Debi so far recognized this conveyance as to make it binding on herself, but it is contended that it has no operation whatever upon the interests of Tarini Charan and Chintamani whose interests cannot be alienated by the acts of the widow, except under special circumstances of necessity which here do not exist.

The argument is good if the view of the facts be correct, but we think the view is not correct. A great deal will depend on whether or no Dakhina Debi was properly represented in the suit before the Principal Sudder Ameen. If, as we think we ought now to presume, she was properly represented, then we think the matter stands precisely as if Dakhina Debi had been of age and had acted on her own behalf; and we think it would be a wholly erroneous view of the transaction to look upon it simply as an alienation by her of an interest of which she was in possession. We consider that both before and after the decree in the Principal Sudder Ameen''s Court, she, and therefore those who represented her, had full power to compromise the suit. If she had chosen never to assert her right, her children would have been barred by the Statute of Limitation: Nobin Chandra Chuckerbutty v. Iswar Chandra Chuckerbutty Case No. 460 of 1867; April 29th, 1868, (B.L.R. Sup. 1008). Surely then she could enter into a compromise before suit brought. If the decision of the Principal Sudder Ameen had been adverse, and Dakhina had not appealed, the decision would have been binding on her children. Surely, she could then have compromised. If the decision of the Principal Sudder Ameen had been reversed by the Sudder Court, and she had not then appealed to the Privy Council, her children would have been equally bound, and in that case also she could clearly have compromised. And it seems to us that it would be most unreasonable and inconvenient to hold that her power to compromise litigation should depend simply on the question, whether or no she had been hitherto successful. It seems to us much more reasonable to hold that, as representative of the entire estate in the litigation, she has the same control with respect to compromise as she has with respect to the assertion of rights, and with respect to appeal against an adverse decision. It is, of course, possible that the trust thus reposed in the widow may be abused without detection, as may the very large discretion which, as the law now stands, she undoubtedly possesses in other matters. But, on the whole, we think it will be found most favorable for the heirs that she should have the power of making an honest compromise at every stage of the proceedings.

But even were we to suppose the compromise to be invalid, and that the Principal Sudder Ameen''s decree stands, the decision in Nobin Chandra Chuckerbutty v. Iswar Chandra Chuckerbutty Case No. 460 of 1867; April 29th, 1868, (B.L.R. Sup. 1008) decides that no new cause of action accrues to the heir after the death of the widow, the only cause of action which ever existed has been asserted by the widow, and she obtained a decree thereon. The plaintiffs, Tarini Charan and Chintamani, could, therefore, at most he entitled to execute that decree. This is not what they are now attempting to do, nor could they do so, for the same decision demonstrates that they would be barred here also.

Again, suppose that Dakhina was not properly represented in the litigation in the Court of the Principal Sudder Ameen. Those proceedings must then, so far as the present plaintiffs are concerned, be wiped altogether out of consideration, and how does the matter stand? It stands precisely as the matter stood in the case before the Full Bench. The plaintiffs are heirs after a widow who has not asserted her rights. More than 12 years have elapsed since their cause of action accrued, and they are therefore barred.

In any possible view, therefore, of this case, except that which we consider the wholly inadmissible one suggested by Mr. Montriou, and accepting, as we are bound to do, the Full Bench decision referred to, we think the plaintiffs in this suit ultimately stand in the same position as regards the 8-anna share of Ram Narayan as they do in respect of the 8-anna share of Shambhu Chandra in the Bogri Pergunna, that is to say, that the defendants hold on the whole of both zamindaries a valid patni-talook. In this view of the case, it is unnecessary to enter into the other questions raised on behalf of the respondent, namely, whether the zamindars could be properly made parties to this suit which was for possession, they having transferred all their rights of possession to Lachmipat. Secondly, whether the suit ought to be dismissed on the ground of champerty or maintenance. Thirdly, whether the suit could be maintained in the Civil Court. Fourthly, whether, apart from the construction of the documents, the zamindars had so dealt with the patnidars as to show that the patni talook was or at any rate had become an hereditary one. We consider, for the reasons we have stated, that the Court below was right in holding that the interest of a patni talook in both zamindaries is well vested in the defendants, and that this appeal ought to be dismissed with costs.