HIBA AHMAD Vs. MTRAM PIARI

JUDGEMENT

(1.) This is a Letters Patent appeal from a decree of a learned Single Judge of this Court dismissing the appeal of the defendant. The defendant is a lambardar and co-sharer and the plaintiff as co-sharer brought a suit in the revenue Court for a share of profits for three years and the revenue Court decreed Rs. 73-12 in favour of the plaintiff and the appeal of the defendant to the Court below has been dismissed and the second appeal of the defendant to this Court has been dismissed by the learned Single Judge. The claim of the defendant as argued before us was that the family of the defendant were the original owners of a zamindari share in this village and that in the year 1853 Government remitted the revenue which the family had to pay on their share. In the written statement a plea was put forward that the plaintiff was not entitled to profits as the property had been given as maintenance to the present and future generations of the defendant. The Courts below in the first instance did not refer to evidence produced by the defendant on the point, namely two documents Exs. B and C. On the second appeal to this Court the learned Single Judge came to the conclusion that this aspect of the question had not been dealt with and accordingly he remanded two issues as follows : 1. Was the remission of land revenue in favour of the defendant's ancestors in 1853 a grant in respect of past services or present infirmities or as compassionate allowance? 2. Was the grant of 1853 a mere remission of revenue or was it a grant of revenue in perpetuity for the benefit of the grantee and his descendants? In remand the lower appellate Court has come to findings on these issues in favour of the defendant. There is one document Ex. C, a certificate of revenue free tenure permanently released which refers to muafi nazrana of Rs. 40 per annum. There is another document Ex. B, a copy of an extract from the register of the demand of land revenue for the year 1867, which under the heading "Qism Muafi" (character of the revenue free grant) states "Madad mash daimi naslan bad haslan" (an aid to maintenance to be continued generation after generation). The Court stated: My finding accordingly is that the concession relating to land revenue, whether it be a remission or a grant, was compassionate in character. It is clear, therefore, that this grant was, firstly, in perpetuity, and, secondly, for the benefit of the grantee and his descendants. As I have stated before, the circumstances seem to suggest that, when the grant was made in 1853, it was never contemplated that the benefit regarding the land revenue would accrue to anyone different from the person who possessed the land. In my opinion, therefore, whatever the grant was, it was not a mere remission of revenue. In view of Ex. B and the implications of the information which it embodies, my finding has to be that the concession was a grant of revenue in perpetuity for the benefit of the grantee and his descendants.

(2.) The Court also finds that the grant arose from an order of Government dated 30 July 1853, which was not produced but which was referred to in Ex. C of 1864. The origin of this revenue free grant was thus due to the Government of Agra province in the year 1853. The learned Single Judge, Thorn, J., considered the case from the following aspect only: If, therefore, the remission of land revenue is a pension within the meaning of Secs.11 and 12, Pensions Act, the appeal must be allowed in part.... The Bench of which I was a member came to the conclusion that remission of land revenue was not a pension within the meaning of the above-mentioned sections of the Pensions Act Mumtaz Husain V/s. Brahmananda . In the result the appeal is dismissed with costs.

(3.) The ruling in question dealt with an altamgha or royal grant made by Shah Alam, King of Delhi, in a firman stated to be of the year 1184 Hijri (1765-66 A.D). The headnote is in error in quoting a term of that firman as the Bench held that the copy of the firman was not proved and that the terms were therefore not known (p. 163). On p. 164 the Bench referred to Section 15, Bengal Regulation 37 of 1793, which provides: Altamgha, ayma, and mudadmash grants are to be considered as hereditary tenures. These and other grants, which from the terms and nature of them may be hereditary and are declared valid by this Regulation, or which have been and may be conferred by the British Government or by any of its officers possessing competent authority to confirm them are declared transferable by gift, sale of otherwise....