YESHVANT VISHNOO NENE Vs. KESHVANT BHAI JI

JUDGEMENT

(1.) In this case I think the defendants must succeed on two very substantial grounds. The plaintiff is suing as a Fazendar to evict the defendants. The defendants claim to be permanent tenants. It is unnecessary to trace the respective title of the parties since there is no dispute but that the plaintiff derives from the original Fazendar and the defend" ants from the original lessee Manik Vithal. I am much indebted to counsel for taking me back to the original sources of the law in this Presidency upon Fazendari tenure, and thus giving me an opportunity of analyzing the sources of that law and tracing the confusion of thought and language which appears ever since to have characterised the common Bar opinion upon this topic.

(2.) The first ground upon which I shall place my decision is that upon a mere construction of the lease Ex. B in the case. dated the 22nd of February 1860. I have no doubt whatever but that it is a permanent lease. The lessee takes on what is called Fazendari tenure, and he takes expressly for building purposes; and it is also expressed that his tenancy is to be co-extensive with the right of the true Fazendar over the entire oart. Now, it is by the use in leases of this kind of such words as "Fazendari tenure" that the confusion of thought, to which I have alluded, becomes most conspicuous. I think there cannot be the least doubt but that the matter is in itelf essentially simple and would never have gathered so much mystery about it but that all true Fazendars, as far as I know, have never been called upon, or, if they have been called upon, have never been able, to adduce paper title explanatory of their status. It is to be remembered when I say this that in my opinion everyone originally paying tax and pension was a true Fazendar. This dates from Aungier s Convention in 1672. The effect of it was to confirm all Fazendars found in possession of land outside the Fort in perpetual possession upon payment of a tax or pension. "Pension" here means royalty, not quit rent, and those who paid pension only were in respect of their lands virtually free holders, acknowledging by the payment of this pension loyalty to the Suzerain Power. Some Fazendars appear to have paid both tax and pension and some tax only or pension only. Thus it becomes perfectly clear that, historically and in its inception "Fazendari tenure" is to be referred to the relations existing between the original Fazendars and the Government. But even in the Bombay Gazetteer, as well as in common parlance, "Fazendari tenure" appears usually to be understood as confined to the relations subsisting between the true Fazendars and their tenants. This I believe to be historically as well as theoretically inaccurate, but I think it is more than probable that these latter relations were in the beginning governed much more by usage than by contract, and when governed by usage, assumed very peculiar forms, to which legal effect was sought to be given in the dissentient judgment of Yardley J. in Doe dem. Dorabji v. Bishop of Bombay (1848) Perry s O.C. 498. There is nothing, however, that I can see in theory to prevent a true Fazendar subletting his land on ordinary principles of contract, and wherever that is done and those principles are discoverable in the document, the resultant relations are purely contractual and not to be determined by inquiry into usage. But still it is quite obvious that all true Fazendars are persons holding plots of land, probably acquired before the advent of the British Government, upon perpetual tenure subject only to the payment of a nominal rent to the Government. Every such true Fazendar might, of course, deal with the land, he so held, as he pleased and might sublet it just as any other owner of land or buildings might sublet his property, and it would not necessarily follow that any element of the original tenure was introduced into those sub-contracts. This probably explains the dictum of Farran J. in an unreported judgment (in Suit No. 262 of 1883), Purmananddas Jivandas v. Ardaseer Faramji, in which that learned Judge says :--" My experience is that it is used with reference to tenants holding under a private landlord to indicate sometimes an indefeasable right to hold in perpetuity on payment of a small quit or ground rent and sometimes any kind of tenure agreed upon between the parties." It appears to me, however, that expressed as it is, that sentence throws but little light, if any, upon the subject. If the word Fazendaii "indicates" anything at all, that must be with reference to its own peculiar and special connotation and it seems to me erroneous to say that it could indicate any kind of tenure agreed to between the parties. There may be instances (and the case before the learned Judge was one of them) in which the other terms in the sub-contract show clearly that the introduction of the term " Fazendari" is deprived of all its special connotation, and is, therefore, either superfluous to or contradictory of the real intentions of the parties. Thus to talk of a tenant taking from a Fazendar on Fazendari tenure from month to month with other terms, showing that what was intended was purely a monthly tenancy, would mean no more than that the term "Fazendari" has been ignorantly used and was in that connection meaningless. In all such cases the explanation of the introduction of this word is probably referable to the fact that the lessor is himself a Fazendar and might have wished to insist upon reproducing that character in his own interest in the sub-contract. However that may be, a very little reflection will show that there cannot be two Fazendars of the same property at the same time, and, therefore, it is only by the actual assignment of his Fazendari rights (and that is a case with which I am not. now concerned) that a true Fazendar ceases to be a true Fazendar and his assignee assumes that character in his stead. But there is another sense in which the use of the term "Fazendari" in these sub-contracts may have a very distinct significance for purposes of construction and interpretation ; that is to say, where a tenant takes from a Fazendar, and in the lease it is expressed that the tenant takes on Fazendari tenure, and the terms of the lease are not in themselves inconsistent with such an expression, I think it may safely be assumed that the real intention of the parties was that the Fazendar meant to transfer to the tenant upon the agreed rent exactly the same relations, as between them, in which he in turn as Fazendar stands to the Government, that is to say, that in all these sub-contracts, where the Fazendar designedly gives them upon Fazendari tenure, the term "Fazendari" must be read between the parties in the sense in which it has always been understood to denote the character of the tenure of the true Fazendar as between himself and the Government, that is to sky, a permanent tenure. I have not the very least doubt in my own mind that that has, during recent years, at any rate been the understanding between the parties to leases of this kind in the Town and Island of Bombay when a Fazeudar sublets on Fazendari tenure unless the other provisions of the lease make it quite clear that there was a different and contradictory intention. So that if in every case of a lease by a Fazendar to one who was not a Fazendar, the latter had been described in the lease as a sub-Fazendar, virtually the whole confusion of thought, with which this topic has been clouded in our law books, would, in my opinion, be at once dispelled. There is, however, one possible alternative, viz., that when the Fazendar sublet on "Fazendari tenure" he meant to import the very peculiar incidents which custom and usage may have attached in olden time to the relations existing between such sub-tenants and the Fazendar. But I think it would be too late now, especially in view of Sir Erskine Perry s judgment, to reopen inquiries into what such ancient custom and usage may have been whenever we find the words "Fazendari tenure" in these sub-leases.

(3.) Applying that reasoning to the terms of the present lease, it is quite clear that there is nothing in it contradictory to the natural use and meaning of the words "Fazendari tenure," which it contains. The landlord Gopal Danaji held the land in relation to the Government as a Fazendar, and, therefore, in perpetuity. He gives a portion of it to Manik Vithal on "Fazendari tenure", that is to say, as between himself and Manik Vithal, to the latter in perpe- tuity. I, therefore, have felt no difficulty whatever in construing the document of 1860 as a lease in perpetuity. I do not now dwell upon a question raised at one part of the trial by counsel for the defendant as to the genuineness of that document. It is more than thirty years old and it comes from proper custody. I see no reason whatever to doubt that it document, and I may add that I think the defendant s position would have been very much weaker without it than it now is with it; for, if that document were held to be a forgery; then we should have to look for the origin of the tenancy elsewhere and might have to invoke the language of Ex. A in the case, which is an agreement of the year 1859 between the same parties. There can, of course, be no doubt (for this is common ground) but that in the year 1860 there was a subsequent agreement of the 22nd of February; but if Ex. B be not that agreement, then its terms are lost for ever, and in investigating the origin of the tenancy, in order to throw light upon its true character, I do not see how the Court could ignore Ex. A. I will not pursue that topic any further, for, as I have said, I do not think that there is any sufficient reason to doubt the genuineness of Ex. B, the lease of the 22nd of February 1860.