SURIYA RASHID (BEGUM) Vs. STATE OF M.P.

JUDGEMENT

(1.) GENERAL Obaidullah Khan was the second son of Nawab Sultan Jehan Begum, the Ruler of Bhopal. The Bhopal ruler granted a jagir as also muafi lands to Obaidullah Khan. The land known as Kali Parde in village Chhola was granted under the Sanad -muafi dated April 10, 1948 in exchange for another land. The land known as Ban Ganga was granted under the Sanad -muafi dated November 23, 1919. The Jagir and the muafi grants were expressed to be for "naslan -bad -.naslan" and "batnan -bad batnan" (descendant after descendant and generation after generation). Obaidullah Khan died in 1924 leaving behind him his two sons Saiyed -ul -Zafar Khan and Rashid uz -Zafar Khan. On his death a question arose whether his lands should be attached, but under the express orders of the Bhopal Darbar his heirs were allowed to continue in possession except for 3 years during which the muafi lan is and the jagir were managed by the Surfe -Khas the department managing the personal property of the Ruler. Saiyed -ul -Zafar Khan died in 1945. An application for the grant of a fresh Sanad was made as early as 1927 but no action was taken until 1946. Under orders of the Ruler a fresh Sanad was issued on February 23, 1949 granting jagir to Rashid uz -Zafar Khan for his life time and simultaneously the grantee executed an agreement promising to abide by the terms and conditions of the grant No decision was taken by the Bhopal Darbar for the issue of a fresh Sanad to the heirs of Obaidullah Khah. The Bhopal State merged in india in 1949. On may 10, 1954 the Chief Commissioner. Bhopal, passed an order resuming the muafi lands. A writ petition filed by Rashid -uz Zafar Khan was dismissed and he was relegated to his suit. On June 30, 1956 the Government took possession of the muafi lands. In 1958 Rashid -uz -Zafar Khan filed a suit against the State of Madhya Pradesh for recovery of possession of the lands and mesne profits. The Trial Court dismissed the suit. Rashid uz -Zafar Khan filed First Appeal No, 238 of 1959 in the High Court. During the pendency of the appeal he died and his heirs were brought on the record Both the Courts below concurrently held that the grams of the muafi lands to Obaidullan Khan did not endure beyond his life time and in the absence of fresh Sanads his heirs bad no right to the muafi lands. They rejected the contention that the grants were hereditary. The present appeal has been preferred by the heirs of Rashid -uz -Zafar Khan after obtaining special leave.

(2.) THE main question in this appeal is whether the greets in favour of Obaidullah Khan were hereditary or were for his life only. It is well settled that the Arabic expressions "naslan -bad -naslan" and "batnan -bad -batnan" in a grant normally import a heritable estate. But the surrounding circumstances and the occasion of the grant may show an intention that the grant is for life only. In Raja Bajrang Bahadur Singh v. Thakurain Bakhraj Kuer : AIR 1953 SC7: 1953 SCR 232: B.K. Mukherjee, J observed: "The Learned Counsel for the Appellant naturally lays stress upon the words "absolute owner" ( malik Kamil ) and "generation after generation" (naslan -bad -nalsan) used in reference to the interest which Dhuj Singh was to take under the will. These words, it cannot be disputed, are descriptive of a heritable and alienable estate in the donee, and they connote full proprietary rights unless there is something in the context or in the surrounding circumstances which indicate that absolute rights were not intended to be conferred. The Court held that a "naslan -bad -naslan" grant under a will on its true construction conveyed an estate for the life on the grantee. In Guiabdas Jugjivandas v. Collector of Surat, LR 61A 54, the Judicial Committee held that the grant of a Jagir by the Raja of Satara was for the life of the grantee though the grant was expressed to be in favour of the grantee with his descendants and children Sir Robert P. Collier observed:

(3.) THERE is a distinction between a muafi and jagir. The former is a remission of land revenue whereas the latter is an assignment of land revenue to the grantee. But the question is whether the expressions "naslan -bad -naslan" and "batnan -bad -batnan" in the muafi grant to the son of the Bhopal ruler had the same meaning as in a jagir grant. The Courts below concurrently held that in Bhopal State the expressions "naslan -bad -naslan" and "batnan -bad -bathan" in the muafi grant had the same meaning as in a jagir grant. Having regard to the special facts and the course of trial in this case, we are not inclined to disturb this concurrent finding. In the trial Court the case was fought and evidence was led on the footing that the expressions had the same meaning in both jagir and muafi grants. There is evidence to show that the muafi grant in favour of the Ruler's son was liable to be attached on the death of the grantee, and the usual procedure of attachment was not followed in this case as a matter of grace under special orders of the Bhopal Darbar.