MAHARAJA SRIS CHANDRA NANDY Vs. RAKHALANANDA THAKUR

JUDGEMENT

(1.) THIS is an appeal from the High Court of Judicature at Fort William in Bengal who affirmed a decree of the Additional District Judge 24 Parganas in favour of the plaintiffs, the present respondents. The plaintiffs are a distinguished family of Brahmin priests, Thakurs of Shrikhanda: and their claim is for a declaration that they are entitled to a charge on the Kasimbazar Raj Estate represented by the defendants for an annual britti of 4,000 rupees payable by half-yearly instalments and for a money decree for arrears amounting to Rs. 13,260. The defences to the suit are in substance that the plaintiffs never had a legal right to the britti, and that in any event it was not charged upon the estate. These issues were raised in the proceedings and have been decided in favour of the plaintiffs in both Courts. The history of the claim begins with the founder of the Raj fortunes one Krishna Kanta Nandy. He appears to have been a Hindu of comparatively humble origin who by his abilities attracted the attention of Warren Hastings, became his Diwan, and died in the year 1778 proprietor of large possessions in about twelve different districts and in Calcutta. After his death his son Loknath appears to have been given the title of Maharajah of Kasimbazar by Warren Hastings, and the property to which he and his descendants have succeeded is known as the Kasimbazar Raj Estate. The case of the plaintiffs is that Krishna Kanta Nandy established two deities, Radhagovinda and Lakshminarayan, at Shrikhanda, the plaintiffs' home, and granted the plaintiffs a britti of Rs. 4,000 for the worship of the two deities: and at the same time charged his Raj estate with the payment of the britti. The plaintiffs and their successors, it is said, became the gurus of Krishna Kanta Nandy and his family and its successors: they have conducted the worship and service of the deities ever since.

(2.) THE learned Assistant District Judge found that the plaintiffs had established the whole of their case. A permanent grant of britti was made by Krishna Kanta Nandy who had established at the home of the plaintiffs the two deities and provided the britti for securing their service and worship. To secure the permanent payment he had charged it upon the estate. THE learned High Court Judges were not able to find that Krishna Kanta Nandy had established the deities, but they concurred in the finding that he had made a permanent grant, and had charged it upon the Kasimbazar estate.

(3.) IN the result, therefore, there is no evidence at all of the establishment of the deities by Krishna, of any permanent grant by him of the britti, or of the creation of any charge upon any property. It is very significant that though the plaintiffs appear to have very complete records of their transactions from early times, no document is produced making or evidencing the grant or charge: and this alone is sufficient to cast doubt upon the claim. Moreover while it would not be unusual to assign particular lands as the source from which britti was to be paid and in this sense create a charge, it would seem to their Lordships very improbable that a vast estate should be charged as a whole with the payment of Rs. 4,000 a year. Their Lordships are not prepared to say that a valid charge could not be created upon what could be defined to be the whole of a man's property at the date of the charge. IN the present case it should be noticed that not only is the charge claimed and decreed a charge upon the estate as it at present exists; but it has been decreed without any condition that the families of the grantor or the plaintiffs should continue to exist, or that the plaintiffs should continue to perform the service and worship, sheva and puja, of the two named deities. This defect in the decree was admitted by counsel for the respondents who submitted an amended form of decree which would remedy the mistake. But for present purposes the point is the difficulty the plaintiffs are in in establishing any grant or charge with any sufficient certainty. Naturally if the continuous payments could not be explained without asserting some legal origin which would create the rights claimed, any Court would feel inclined to presume the necessary legal origin. But in the present case there are no facts which require a presumption of any lost grant either for the permanent gift of the britti or still less for it being constituted a charge. It appears to their Lordships the natural inference from the known facts that the original founder of the estate granted the britti in his lifetime: and that his successors from pious motives continued the grant to the plaintiffs' successors who continued to be the family spiritual guides, and served and worshipped; the family gods. "Without assuming any legal obligation it would in the circumstances have been strange if the britti had not been continued. The learned trial Judge working backwards, as it would seem from the fact that the payment was continued for several generations, has imputed to the founder the intention that it should continue for all those generations: and has so drawn the inference that he did in fact grant a permanent britti; and took steps to secure its permanence by creating a charge, the uncertainty of the terms of which their Lordships have already discussed. The trial Judge it is true found that Krishna Kanta Nandy established the deities. The High Court have found that it would not be safe on the evidence to hold that the plaintiffs had established the case that the two deities were so established. Nevertheless they go on to say that they cannot express the definite opinion that the Trial Judge was not right in his inference that the deities were so established. This conclusion appears to involve some confusion of thought. If it was not safe from the evidence for the appellate Court to draw a particular inference, it was not safe for the trial Judge to draw the inference. Not safe must mean that there is not evidence from which the inference can reasonably be drawn. There are cases in which evidence is so well balanced that an inference either way ran reasonably be drawn. IN such cases the appellate tribunal may select the inference they choose: but they can have no equal choice between an inference that is safe, and one that is unsafe.