PERDASH LAL Vs. RAMESHWAR NATH SINGH

JUDGEMENT

(1.) This is an appeal against the decision of the Subordinate Judge of Hazaribagh, dated 17th May 1900. The suit out of which the appeal arises was brought by the plaintiffs to recover possession of mouzah Shakkerpur, pergannah Kunda, from which they say the defendant No. 1 dispossessed them in Assar 1298 Fusli, i.e., June 1891 or 1948 Sambat. They aver that the mouzah was given by Raja Moni Nath Singn, the ancestor of the defendant Raja Rameshwar Nath Singh, to one Janki Misser in the year 1831 as a khairat bishanprit grant, that the gift was that of an absolute estate, that the mouzah was in 1875 leased in mokurari by Bhat Misser, the grandson, and by Jai Kuner, the daughter-in-law, of Janki to one Lall Ram Garreri, who sold the mokurari to the plaintiffs in 1886 and 1888, that they entered into possession and that, as the defendant No. 1 has dispossessed them, they are entitled to recover possession the defendant's pleas were that the gift to Janki Misser was not of an absolute estate, but of an estate which descended to the male heirs of the donee, and that on the failure of the male heirs of the grantee, the donor and his heirs are entitled to resume the grant, which has accordingly been done, and the defendant is therefore in lawful possession. The Subordinate Judge found in favor of the defendant and dismissed the suit. Hence this appeal.

(2.) The pleas urged on behalf of the appellants are- (1)that the Subordinate Judge is wrong in finding that the grant to Janki Misser was of an estate to the grantee and his descendants in the male line, and that it was resumable by the donor and his heirs on the failure of such descendants. (2) that the Subordinate Judge was wrong in finding that according to the custom prevalent in the defendant's Raj, such khairat grants are resumable on the failure of the male descendants of the grantee; (3) that, even if his finding on these points be correct, the Subordinate Judge is wrong in coming to the conclusion that there has been a failure of the male descendants of Janki Misser; and (4) that his finding that the plaintiffs never were in possession of the mouzah and that the suit is accordingly barred by limitation, is also incorrect.

(3.) We will deal in the first place with the question of the nature of the grant to Janki Misser. The Sanad, Ex, VI, p. 73, has been found to be genuine by the Subordinate Judge, and there is no cross appeal oh this point. It is manifestly a grant in khairat bishanprit to Misser Janki Ram and covenants that mouzah Shakkerpur shall remain in possession of the descendants (al aulad) of the Misserji and that the grantor's descendants (al aulad) shall never molest him in the place. There has been much discussion before us as to the meaning of the vernacular words al aulad. It is evident that they signify "offspring" or "progeny" and therefore, etymologically considered, include female as well as male descendants. Hence, the sanad does not by itself show that the grant to Janki Misser was one of the nature of which the defendant contends that it was; on the other hand the sanad contains no words importing a right of alienation. It therefore does not show that the grant was one of an absolute estate, as contended by the plaintiffs.