(1.) IN the suit which gives rise to this appeal the plaintiff, now appellant, claimed as heir-at-law of Rajah Jaswant Kao to be entitled to properties valued at 40 lacs of rupees, of which Jaswant's widow, Kishori, the defendant below and the respondent here, had become possessed. As regards the larger portion of this property, principally moveable, the plaintiff has failed in both the Courts below, and raises no further question. He still claims (1.) the proprietary right in five villages conveyed as a gift by Jaswant to Kishori by deed dated September 4, 1875; (2.) the proprietary right in two other villages purchased by the defendant after Jaswant's death; and (3.) a perpetual charge by way of malikana amounting to 10 per cent, of the revenue of seven other villages which were the subject of a grant by the Government of India to Jaswant, dated April 6, 1861. The District Judge decided against the plaintiff as to all these properties, except one of the five villages named Bakewar. As to that village the District Judge held that it was ancestral property which Jaswant had no power to alienate by way of gift, and he decreed possession of it to the plaintiff. Both parties appealed to the High Court. Separate orders were made on the two appeals. The plaintiff's appeal was dismissed; the defendant's was allowed; so that the plaintiff's suit stood dismissed as to all his claims. The plaintiff has appealed from both these orders, and his appeals, in form two but in substance one, have now been argued.
(2.) EXCEPT as regards the village of Bakewar, which has been the subject of difference between the two Courts below, the facts of the case may be briefly stated : All the villages in suit were at one time the estate of Khuman Singh, the father of Jaswant. Through extravagance or misfortune Khuman fell into poverty and he parted with the villages; whether in fact or only in appearance is matter of dispute in this suit. Jaswant became a successful man of business, and he also rendered active and valuable services to the Government at the time of the Sepoy Mutiny. Thus he became able to repossess himself of the estate which Khuman had enjoyed, and the Government acknowledged his services by the grant in question. Khuman died in December, 1844. His eldest son Lai Barian married Adhar Kunwar, a lady of considerable private fortune, and died without issue. Jaswant was the only other son, and he married Kishori as his third wife. He died in August, 1879.
(3.) MR . Ross does not contend that the words "generation after generation" confer any interest less than absolute ownership, nor does he now sustain the contention urged in the Lower Courts that the jama of the five villages did not pass to Jaswant in absolute ownership. His contention is that as regards the seven villages there are two distinct gifts - one to Jaswant for his life, and the other after his death; and that at his death the malikana is given in absolute ownership to the person who may then happen to be his heir. That would attribute to the Government the strange intention of acknowledging the personal merits of Jaswant by conferring a benefit on some unknown heir for whom he might or might not have a regard. The construction also appears to their Lordships to be as strained as it is improbable. They think that the obvious meaning of the expression" his heir for generation after generation "is that the malikana is to form part of his heritable property; and that whereas he takes the whole income for his life only; he is to take the 10 per cent, malikana in absolute ownership. Both the Courts below have taken substantially the same view, and the appeal fails on this point.