RANI BHUNESHWARI KOER Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal arises out of a suit by Rani Bhuneshwari Koer to eject the Secretary of State from possession of lands which constitute 8 1/2 annas of Mahal Dakhner situated in what is known as the 7 annas share in the Tikari Raj. The plaintiff is admittedly the zamindarot the estate. The Secretary of States claims to be a permanent tenant of the estate, and in such cases the onus is upon the defendant to establish his permanent right. The history of the plaintiff's title has been succinctly summarised by the learned Subordinate Judge and the following is a Reproduction of that part of his judgment. Maharaja Mitterjit Singh Bahadur was the 16 annas proprietor of Tikari Raj: he died in 1840 and in the same year his two sons Maharaja Het Narain Singh and Raja Mode Narain Singh partitioned the entire Tikari Raj into two blocks so that the former got a 9 annas share and the latter the above mentioned 7 annas. The Dakhner Mahal consisting of about 31 villages was allotted to Raja Mode Narain Singh with other properties in respect of his 7 annas share. Raja Mode Narain Singh died in 1857 leaving two widows, Rani Asmedh Koer and Rani Sunet Koer, who jointly inherited his entire property arid came into possession inter alia of Mahal Dakhner. In 1861 the two Ranis divided the entire inheritance, the 8 1/2 annas share being taken by the Senior Rani Asmedh Koer and the 7 1/2 annas share was taken by the junior Rani Sunet Koer. Mahal Dakhner was also divided in the same ratio, that is to say, 8 1/2 annas share in Mahal Dakbner came into the possession of Asmedh Koer and 7 1/2 annas share came into the possession of Sunet Koer. Sunet Koer died in 1872 and her 7 1/2 annas share devolved on her co-widow Rani Asmedh Koer, who, by two deeds of 1872 and 1873, respectively, surrendered the 8 1/2 annas share and the 7 1/2 annas share in favour of Raja Ran Bahadur, the nearest agnate of her deceased husband so that Raja Ran Bahadur Singh came into possession of the 7 annas Tikaii Raj as an absolute proprietor. In 1890, Raja Ran Bahadur Singh bequeathed the entire 7 annas Tikari Raj to Raj Kumari Ratan Kuer, the daughter of his predeceased son. She, in turn, in 1895, bequeathed the entire estate to her only daughter the plaintiff who thus became the absolute proprietress of the 7 annas Tikari estate including Mahal Dakhner.

(2.) Now Raja Mode Narain Singh had a Muhammadan mistress Musammat Barati Begum by whom he had two illegitimate sons, Mirza Himat Bahadur and Mirza Ekbal Bahadur. In I860 Mate Ekbal Bahadur instituted criminal proceedings against Rani Asmedh Koer and Rani Sunet Koer in respect of Mahal Dakhner, alleging that on December 2, 1850, Raja Mode Narain Singh had granted a permanent lease to him of Mahal Dakhner which was to take effect from the beginning of 1262 Easily. The Criminal Court found that Ekbal Bahadur was not in possession. Therefore, Ekbal Bahadur brought a regular suit in the same year against the two Ranis for a declaration of his title as a permanent mokarraridar and for recovery of possession of Mahal Dakhner.

(3.) The meaning and effect of the decisions in this suit have been a matter of much controversy before us, and a correct decision is vital to the case, so at this stage I must digress from the narrative of events to deal with the matter. Rani Asmedh: Kuer did not appear and did not file any written statement in the suit and did not appear at the trial. Rani Sunet Koer, however, contested the suit on the ground that the mokarrari deed of 1850 was not genuine and that Ekbal Bahadur was never given possession. The case came before the Sadar Amin and his judgment or rather a translation into English thereof forms Ex. I in this case. The Sadar Amin seems to have found that the plaintiff had failed to prove the deed as against Rani Sunet Koer; but in as much as in the criminal case Rani Asmedh Koer had admitted the deed and the plaintiff's mokarrari right and as she had not disputed it in the suit before him, he held that it must be taken to have been admitted by her and, therefore, the plaintiff's claim must succeed as against Rani Asmedh Koer in respect of the 8 1/2 annas share in Mahal Dakhner, The plaintiff appealed to the High Court in Bengal and a separate appeal was preferred by Rani Asmedh Koer. The judgment of the High Court, dated January 1865, is Ex. I (a). It is not easy to understand. In discussing the genuineness of the deed the arguments in favour thereof and against it are set forth and it was held that the plaintiff failed to prove the deed but that the separate appeal preferred by the elder Rani Asmedh Koer could not be heard as she had not defended the case in the lower Court. The learned Judges held that the two Ranis, had been entirely opposed to each other and that, the acts of the elder Rani could not bind the younger. They upheld the view of the Sadar Amia that the elder Rani was bound by her admission of the deed of 1850 and the suit failed as against the younger Rani.