TOOLSHI PERSHAD SINGH Vs. RAJAH RAM NARAIN SINGH

JUDGEMENT

(1.) THE Respondent (the Plaintiff in the suit) is the grandson of Rajah Nirbhoy Singh, who was the owner of the zemindary of Gidhowr, an ancient impartible estate, which descended according to the law of primogeniture. The Appellants (the Defendants) are the sons of Kumar Sarnam Singh, who married Srimati Nawah Koeri, one of the daughters of Nirbhoy Singh. In 1852 Nirbhoy Singh died, leaving one son, Rajah Mohender Narain Singh, who succeeded to the estate, and having had five daughters, two of whom died before him. Nawah Koeri died in 1844. Rajah Mohender Narain Singh died in 1869, leaving four sons, of whom the Plaintiff, Ram Narain, is the eldest, and two daughters. Ram Narain succeeded to the zemindary.

(2.) THE only question in the suit is what is the construction of a pottah, granted on the 29th of August, 1850, by Nirbhoy Singh to his son-in-law, Kumar Sarnam Singh, of certain mouzahs which were part of the zemindary of Gidhowr. Sarnam Singh died on the 10th of June, 1878, and on the 29th of March, 1880, the Plaintiff filed his plaint to recover possession of the mouzahs, in which he alleged that the pottah was granted in lieu of a former pottah, dated the 11th Bysack 1254 Fusli (11th of April, 1847), which was granted in lieu of the first pottah, dated the 11th Cheyt 1239 Fusli (27th of March, 1832); that the first pottah was granted at a smaller jumma than that specified in the second, and was granted on account of paternal affection and kindness to Sarnam Singh, the husband of his daughter, for the assistance, maintenance, and support of his daughter and her husband; and that the pottah was to remain in force only during the lifetime of the grantee. The Defendants, in their written statement, alleged that Sarnam Singh was a member of a family of the Rajpoot caste, and Nirbhoy Singh was inferior to him in family and caste, and that on account of his marriage with Nawah Koeri, and of his living at Gidhowr with his wife and children, Nirbhoy Singh on the 11th Cheyt 1239 Fusli granted to him an istimrari mokurruri tenure, i.e. for perpetuity, at an annual jumma of Rs. 201. They denied that the grant was for his lifetime, and submitted that it was for perpetuity to be enjoyed generation after generation. The pottahs of 1847 and 1850 are in the proceedings, but that of 1832 is not. By that of 1847 the annual jumma was raised from Rs. 201 to Rs. 651, for a reason which is there stated. That of 1850 was made to settle some dispute as to a word in that of 1847. It is not necessary to state the terms of either of these pottahs. They both contain the words "istimrari mokurruri," the meaning of which is disputed, and it appears from the recital in that of 1847 that the original pottah contained those words.

(3.) THE Defendants appealed to the High Court at Calcutta. That Court in its judgment, after distinguishing the cases relied upon for the Defendants (and, their Lordships think, rightly), says that in the later years of the Sudder Dewany Adawlut it was repeatedly held that an istimrari lease conveyed no hereditary right, unless expressly given by such words as "ba farzandan" or "naslan bad naslan," but there have been cases in the High Court in which the words "mokurruri istimrari" were held to convey a hereditary right. It then refers to two cases before this Committee, and says, "It is therefore fully established at the present day that the words contained in the Defendants' pottah do not per se convey to them an estate of inheritance." And after referring to the evidence of the custom of the family, the Court dismissed the appeal.