BENI PERSHAD KOERI Vs. DUDHNATH ROY

JUDGEMENT

(1.) THIS is an appeal from a judgment of the High Court of Calcutta reversing the previous decree of the Subordinate Judge of Zillah Shahabad. The suit was instituted on the 7th April 1893 by the late Maharajah of Dumraon for the purpose of asserting his title to mouzah Dumra. As originally framed, the plaint sought only a declaration of the rights of the Maharajah after the death of one Earn Golam Raut who was the first defendant in the suit. On the death of Earn Golam in August 1893, the plaint was amended and a prayer for possession was added. The Maharajah died pending the suit, and his representatives were substituted in his place as plaintiffs. The Subordinate Judge made a decree in their favour, but the High Court reversed that decree and dismissed the suit with costs. The only appellant in the High Court was Dudhnath Roy, the representative of a purchaser from Ram Golam, and he is the only respondent who appears in this appeal. The question in this appeal turns in the first instance on the construction of a deed, dated the 13th November 1836, by which a former Maharajah, Jai Perkash, granted the village in question with others to his nephew Lal Barmeswar Baksh. In the view which their Lordships take of the case, the construction of the other instrument referred to, being a pottah dated the 25th February 1849 by Barmeswar in favour of Ram Golam, is unimportant. It was contended on behalf of the surviving plaintiff and present appellant that the first deed created only an interest for life in Barmeswar. In consequence of an admission said to have been made by Counsel, the learned Judges in the High Court did not find it necessary to express any opinion on the" construction of the first deed, or, as they dismissed the suit on other grounds, on the defence of limitation, and indeed they decided the case entirely on the construction of the pottah. Their Lordships, for reasons which will presently appear, cannot agree with this mode of dealing with the case.

(2.) THEIR Lordships will not discuss at length the terms of the grant to Barmeswar which was expressly made "in lieu of maintenance." It was therefore prima facie resumable on the death of the grantor in accordance with the law laid down in the cases cited by the Subordinate Judge. It contains no words purporting to grant a perpetual interest, and as Barmeswar died childless, it is unnecessary to say whether his family would have taken the benefit of it if not resumed. On the 27th January 1.857, Barmeswar executed an ikrarnama, by which he declared that as large arrears of Government revenue payable by him under the terms of the grant had fallen due to the then Maharajah Maheswar, and as after his death the property according to the custom would revert to the estate of the Raj, and as a money allowance sufficient for his maintenance had been granted, he surrendered all the Mehals which had been given to the declarant in lieu of maintenance to Maheswar, who was then the Maharajah in possession of the Raj. Barmeswar died shortly afterwards without issue.

(3.) BARMESWAR could not of course transfer to Ram Golam a larger interest in the mouzah than he himself had. Ram Golam's tenure therefore came to an end at latest on Barmeswar's death, but he was left in possession by the Maharajah Maheswar, paying the same rent of Rs. 200 as fixed by the pottah. The Maharajah Maheswar abdicated in 1868, and died in 1871. He was succeeded by his son, the late Maharajah Sir Pershad Singh. On his accession, Sir Pershad Singh might have resumed the mouzah or have made afresh grant either on the terms of the pottah or otherwise, or have allowed Ram Golam to remain in possession paying a rent. But as the pottah was void as against him, and not voidable only, the mere receipt of rent by him, though of the same amount as that fixed by the pottah, would not have the effect of confirming the pottah in its entirety. The High Court seem to have understood Counsel to have admitted that receipt of rent by the Maharajah operated as a confirmation of the pottah, and the only question therefore which remained was the construction of the pottah. In the opinion of their Lordships this admission, if correctly understood, was erroneous in point of law, and does not preclude the Counsel for the appellant on this appeal from claiming his client's legal rights. What happened was that Ram Golam was allowed to remain in possession at his former rent. The Maharajah indeed subsequently contended that the rent should be Rs. 201, but that probably proceeded from a mistake made by his officers, and in the opinion of their Lordships nothing turns upon it. If matters rested there, their Lordships think there could be no doubt that whatever was the interest which the pottah purported to grant, Ram Golam was in fact a mere tenant-at-will of the Maharajah and could not set up the pottah against him, except for the purpose of showing the amount of his rent. The parties, however, are in conflict as to the circumstances under which Ram Golam was allowed to remain in possession, and as to the legal effect of certain subsequent proceedings upon which the respondent founds his plea of limitation.