Narsingh Dyal Sahu v. Ram Narain Singh — 1903 DIGILAW 84 (CAL)

JUDGMENT Banerjee and Geidt, JJ. - Tins appeal arises out of a suit brought by the Plaintiff-Respondent, Maharaja Ram Narain Singh Bahadur, to recover direct possession of certain mouzahs or villages, on the allegation that the Plaintiff is the zemindar proprietor of these mouzahs; that they were granted by, or with the sanction of, the Plaintiff's predecessor, Maharaja Earn Nath Singh Bahadur, to Sheotahal Ram Sahu and Tribeni Pershad Saini, the ancestors of the Defendants, in mokurari istemrari right for the lives of the grantees by six leases granted on various dates from the 7th Jeth, Sudi, to the 4th Kartik, Badi 1922, corresponding to certain dates from May to October 1855; that on the death of Sheotahal Ram Sahu, the surviving grantee, who died in Cheyt 1954, the mokurari istemrari leases came to an end and the Plaintiff who became entitled to possession, posted his employees in the mouzahs, but as the Defendants did not give up possession, the Plaintiff gave them six months' notice, requiring them to vacate from the beginning of 1956 and that as the Defendants are still in possession, the Plaintiff is obliged to bring this suit. 2. The defence, in substance, was that the mokurari istemrari leases created permanent and heritable rights in the grantees; that the Plaintiff and his predecessors by their acts and conduct recognized these leases as creating such rights; that the Defendants were accordingly entitled to retain possession of the mouzahs and that the suit could not in any event proceed, as no valid notice to quit had been served. 2. Upon these pleadings the Court below framed several issues, of which we may, for the purposes of this appeal, notice only the following: (i) Were the leases granting the villages in suit to Sheotahal Ram and Tribeni Pershad for life only, or did they create any heritable interests? (ii) What would be the effect of the leases granting the villages in question to Tribeni and Sheotahal Earn, having regard to any local usage? (iii) Was notice to quit necessary? If so, can the suit proceed? (iv) Did the Plaintiff's father accept and recognize the Defendants as mokuraridars? If so, can the Plaintiff's suit be maintained? 3. Both parties went into evidence at considerable length on these issues and the Court below has decided all the issues in favour of the Plaintiff and given him a decree. 4. If so, can the suit proceed? (iv) Did the Plaintiff's father accept and recognize the Defendants as mokuraridars? If so, can the Plaintiff's suit be maintained? 3. Both parties went into evidence at considerable length on these issues and the Court below has decided all the issues in favour of the Plaintiff and given him a decree. 4. Against that decree the Defendants have preferred this appeal and the points raised for determination by their contentions are-- First, whether the Court below is right in holding that the terms mokurari istemrari do not imply the creation of a permanent and heritable right, when there was no evidence to show that their lexicographical meaning has been restricted in any way by local usage; Second, whether the Court below ought not to have held that the Plaintiff was estopped by the assurances given by the grantor from denying the permanent and heritable nature of the leases; Third whether the circumstances under which the leases were granted and the subsequent conduct of the parties did not show that the leases were intended to be perpetual; and Fourth, whether a previous notice to quit was necessary for the maintenance of the suit and if so, whether the notice served in this case was a bar to the claim for mesne profits for Sambat 1955. 5. On the first point, the Appellants' contention is that the term "istemrari" implies permanency and therefore a heritable character in the grant, as is shown in Richardson's Dictionary and Wilson's Glossary, referred to in the case of Leelanund Singh v. Monorunjua Singh (1866) 5 W.R. 101 and that the restriction put upon the above meaning is the result of local custom, as has been shown in the case of Ameeroonnissa Begum v. Hetnarain Singh (1853) S.D.A. Rep. 648 and that, in the absence of any evidence of any local custom, tie leases should be held to create a permanent and heritable interest. 6. On the other hand, it is argued for the Respondent that the term "istemrari," though it implies permanency, does not imply any heritable character in the grant, the permanency being limited to the life of the grantees; and that this is the view taken in the case of Tulshi Pershad Singh v. Ram Narain Singh (1835) ILR 12 Calc. 117 : L.R. 12 IndAp 205. 7. 117 : L.R. 12 IndAp 205. 7. As the point is, in our opinion, concluded by the Privy Council decision in the last-mentioned case, we do not think it necessary to examine in detail the earlier authorities which Dr. Rash Behary Ghose for the Appellants and the learned Advocate-General for the Respondent have so fully and elaborately discussed in their arguments. It will be enough to say that the words mokurari istemrari do not in their lexicographical sense primarily imply any heritable character in the grant, as the term mowrasi does; but that they imply permanency from which, in a secondary sense, such heritable character might be inferred, It being always doubtful whether, to use the language of the Judicial Committee in its judgment in the case of Lilanand Singh v. Munorunjun Singh (1873) 13 B.L.R. 124 : L.R.IndAp Sup. Vol. 181 on appeal from the Calcutta High Court, they mean "permanent during the lifetime of the persons to whom they were granted, or permanent as regards hereditary character"-a doubt which Sir Richard Couch, in delivering the judgment of the same tribunal in the case of Tulshi Pershad Singh v. Ram Narain Singh (1835) ILR 12 Calc. 117 : L.R. 12 IndAp 205 says "is not removed by the lexicographical meaning of the words." The rule laid down as to the meaning and effect of these two words is thus stated by the Judicial Committee in the last-mentioned case:--"After the review of the decisions their Lordships think it established that the words istemrari mokurari in the pattah do not per se convey an estate of inheritance, but they do not accept the decisions as establishing that such an estate cannot be created without the addition of the other words that are mentioned, as the Judges do not seem to have had in their minds that the other terms of the instrument, the circumstances under which it was made or the subsequent conduct of the parties might show the intention with sufficient certainty to enable the Court to pronounce that the grant was perpetual." 8. The learned Vakil for the Appellants contends that this must be taken subject to the qualification that it is by local custom that the meaning of the words is restricted, as is shown by the judgment in the case of Ameeroonnissa Begum v. Hetnarain Singh (1853) S.D.A. Rep. The learned Vakil for the Appellants contends that this must be taken subject to the qualification that it is by local custom that the meaning of the words is restricted, as is shown by the judgment in the case of Ameeroonnissa Begum v. Hetnarain Singh (1853) S.D.A. Rep. 648, an extract from which is quoted in the judgment of the Privy Council in the last-mentioned case. 9. We are unable to accept this contention as correct, because their Lordships not only referred to that case, but they referred also to another case in the Sudder Dewany Reports for 1860 and quoted a passage from it which lays down the rule quite generally; and their own statement of the rule is in equally, general terms, subject, of course, to the qualification about surrounding circumstances and conduct of parties being sufficient to supply the absence of words of inheritance. 10. We may add that the view we take is in accordance with that taken by this Court in the case of Agin Bindh Upadhya v. Mohan Bikram Shah Ante p. 20. 11. The first point raised must, therefore, be decided against the Appellants and we must now consider the second and third points raised in the appeal. 12. Upon, the second point the learned vakil for the Appellants very properly conceded that having regard to the enactment of Section 92 of the Indian Evidence Act and the decision of the Privy Council in the case of Balkishen Das v. Legge ILR (1830) All. 149 : L.R. 27 IndAp 58, it was no longer open to him to contend on the authority of Lincoln v. Wright (1859) 4 DeG. and J. 16 that the evidence as to the assurances given by the grantors of the leases that they were intended to last as long as the sun : and moon should endure, would be admissible; but he urged that although that was so, the Plaintiff was estopped by the :ir representations of his predecessor from questioning the permanent character of the lease. While admitting that the construction of a document was a matter of law and that there can be no estoppel by reason of misrepresentation on a point of law, the learned vakil for the Appellants contended that the rule could only be applicable to cases where the misrepresentation or mistake related to a point of law that was clear and free from doubt and did not apply to doubtful questions where the proper rule would be to bold that the grantor was estopped by his representation and in support of this argument, he refened to the observation of Lord Chelmsford in the case of Beauchamp v. Winn (1873) L.R. 6 H.L. 223 and to the remarks of Lord Westbury in Cooper v. Phibhs (1867) L.R. 2 H.L. 140, 170. We should have been inclined to give effect to this contention if the evidence as to the assurances of the grant had been reliable; but that evidence has been disbelieved by the Court below and we see no good reason for coming to a different conclusion. It is for the most part the evidence of interested witnesses, who are in possession of tenures similar to those now in dispute. It is contradicted by the evidence on the other side, which is, at least, as good. And it is improbable on the face of it, because, if the grantee gave that assurance, there is no reason why it should not have been embodied in the document; and it is extremely unlikely that none of the 600 grantees, who are said to have taken leases of the character of those now before us at about the same time, should have insisted upon words of inheritance being inserted in the leases. 13. We come now to the third point raised in the appeal. It is contended that the circumstances under which the leases were executed and the subsequent conduct of the parties, show that the leases were intended to be permanent. 13. We come now to the third point raised in the appeal. It is contended that the circumstances under which the leases were executed and the subsequent conduct of the parties, show that the leases were intended to be permanent. Among the circumstances relied upon are (i) the state of the law as laid down in the case of Munrunjun Singh v. Lelanund Singh (1865) 3 W.R. 84, decided in June 1865, in which it was held that the terms mokurari istemrari imply perpetuity and (ii) the fact of the grantor having granted the leases in dispute along with similar 600 other leases in lieu of licca or temporary leases with a view to induce the lessees to improve their land. 14. Under the head of conduct of the parties are noticed (a) the omission to resume land covered by any of the 600 leases after the death of the lessees, (b) the recognition of the successors of the grantees by receipt of rent and institution of suits. 15. We shall consider these matters separately and in the order in which they have been stated above. 16. It is argued that as some of the leases in dispute were executed after Juno 1865, the date of the decision of the case of Munrunjun Singh v. Lelanund Singh (1865) 3 W.R. 84, in which the words mokurari istemrari were held to imply perpetuity, these leases at any rate, should be held to be perpetual, as the parties must be taken to have entered into the transactions in view of that being the meaning of the words ; and in support of this argument, the cases of Thumbusawmy Moodelly v. Hossain Rowthen ILR (1875) Mad. 1 : L.R. 2 IndAp 241 and Ramasami Sastrigal v. Samiyappanayakan ILR (1881) Mad. 179 and Elphinstone on the Interpretation of Deeds, page 63 (where certain English cases attaching weight to the practice of conveyances are cited) are relied upon. We are unable to accept this argument as correct in this case. The case of Munrunjun Singh v. Lelanund Singh (1865) 3 W.R. 84 was opposed to the previous uniform current of decisions and was a case of a peculiar nature, as it related to ghatwali tenures. We are unable to accept this argument as correct in this case. The case of Munrunjun Singh v. Lelanund Singh (1865) 3 W.R. 84 was opposed to the previous uniform current of decisions and was a case of a peculiar nature, as it related to ghatwali tenures. Moreover, the leases were made from one draft (see the deposition of Radhika Das, whom the court below has believed and whom we see no reasons to disbelieve) and that draft must have been prepared before June 1805. Then again there was hardly any practice of conveyances here such as the English cases contemplate; and if there was any, that must have been in accordance with the previous current of decisions the piker way. Nor can we attack muck weight to the second circumstance mentioned above, as indicating an intention to create perpetual leases. The former practice was to grant ticca leases for short terms and as against that, this grant of leases for the lives of the grantees might well be taken to have been sufficiently acceptable to him. As for the evidence given that the improvements cost large sums, it is wholly insufficient and unreliable, no accounts having been produced by any witness and no good reason being given for their non-production. 17. Then, as to the subsequent conduct of the parties, we should observe that no recognition of any successors of the grantees, nor anything else indicative of the intention of the grantor, has been shown as to the leases in dispute. The only thing shown with reference to these leases is that in a usufructuary mortgage (exhibit A) executed by the Plaintiff's predecessor, when one of the lessees was alive, the villages covered by some of the leases were mortgaged and the rent reserved in the leases was treated as the income to be realized by the mortgagee; and no change was made in the terms of the mortgage after the death of the surviving lessee, although, upon the Plaintiff's case, the mortgagor become entitled to treat the actual assets of the village as his. This omission, however, cannot amount to any recognition of the continuance of the leases from which the intention that they were to be perpetual could be fairly inferred. This omission, however, cannot amount to any recognition of the continuance of the leases from which the intention that they were to be perpetual could be fairly inferred. The instances of alleged recognition of the successors of the grantees that have been adduced relate to other leases ; and the argument is that as all the 600 leases were granted at or about the same time under similar circumstances and on similar terms, acts and conduct of the parties indicative of an intention that any one of these biases was perpetual, should be evidence of a similar intention with regard to all the other leases. But we are unable to accept this argument as correct in its broad generality. Of course, if it had been shown that in the case of a fairly large number of these 600 leases, there was recognition of the successors of the original grantees and such recognition was not explained by t lather side as being the result of anything peculiar to the leases to which the recognition related, the fact that the intention indicated by the acts and conduct of the parties was to make t rose leases perpetual would make it highly probable that the same was the intention with regard to the leases now in dispute and the facts relating to these leases would, therefore, have been relevant facts, under Clause 2 of Section 11 of the Indian Evidence Act, But then, have we such a fairly large number of instances proved and have not the instances so far as they have been proved, been explained as being either insufficient or as being the result of peculiarities in the circumstances of the leases to which they belong? 18. We are of opinion that both these questions should be answered in favour of the Respondent. As the circumstances have been considered sufficiently in detail by the Court below and as we agree in the view taken by that Court, upon this part of the case, we do not think it necessary to discuss the matter in detail. It will be enough to say that in many of the instances given, the so-called recognition has been made, not by the Raja himself, but by his agents, whose powers were, moreover, expressly limited: see Exhibit XII, paragraphs 5 and 7, with regard to the powers of Mr. It will be enough to say that in many of the instances given, the so-called recognition has been made, not by the Raja himself, but by his agents, whose powers were, moreover, expressly limited: see Exhibit XII, paragraphs 5 and 7, with regard to the powers of Mr. Bowman, Exhibit XVII, paragraph 7, with regard to the powers of Sheonarain Lal and Exhibit XVII, paragraph 2, with regard to the powers of Ghansham Das. Then again, in several of the instances, such as those of suits brought (see plaint, Exhibit and petition, Exhibit), they were filed at a time when one of the grantees was alive, while as to the plaint, Exhibit XX, it relates to an exceptional case, as will appear from Exhibit XV, in which it is said that the Plaintiff having taken pity on the Defendant owing to his being a minor and an orphan, waived his claim to resume the lease. 19. We are therefore of opinion that these instances of so-called recognition are not sufficient to indicate any intention that the leases should be perpetual. 20. Then it is argued that rent was received from the successors of the grantees in several instances. If that was so, the receipts given show that these successors were never recognized as mokurari istemrardars, or as tenants. In the place of the names of the tenants, the old names wore still retained, that is, the names of the grantees and the parties paying the rent were entered as marfatdars. Such receipts of rent can hardly be said to imply an intention that the leases were intended to be heritable, when the persistently expressed intention was that the successors were not to be recognized as holders of the leases. It was argued that the mere receipt of rent, even though under protest, would amount to a waiver of the lessor's right, to resume the property leased and in support of this contention the case of Croft v. Lumley (1358) 6 H.L.C. 672, 713 and Kalikrishna Tagore v. Fuzle Ali Chowdhry ILR (1883) Calc. 843 were relied upon. Those cases are distinguishable from the present. 843 were relied upon. Those cases are distinguishable from the present. They were cases of forfeiture and the question was whether receipt of rent after a breach of the covenant upon which forfeiture was to follow, did not amount to waiver of forfeiture, notwithstanding that the rent was received subject to qualification and the question was answered in favour of the tenant. That was evidently because the law does not favour forfeiture. Here, however, the question is not one of forfeiture. What the Defendants have got to prove is, that there were such acts and conduct as indicated an original intention that the leases were perpetual and heritable and it would be impossible to hold that the receipts for rent in the form given in the present case indicated any such intention. The intention as appearing on the face of the receipts given was the very reverse, namely, the intention not to recognize the successors of the grantees as holders of the tenure. We must therefore hold that nothing has been shown from the circumstances under which the leases were granted, or the subsequent conduct of the parties, to indicate that the leases wore intended to be perpetual. On the contrary, it is abundantly clear from the circumstances under which the leases were granted and the subsequent conduct of the parties, that the leases could not have been intended to create any hereditary right and this we shall shortly show. On the face of the leases it appears that the lessees were not to have any power to transfer their tenancy and it is provided that if they did so, such transfer should be null and void. 21. Then, again, it is provided that the lessees shall not cut down any fruit-bearing or profit-yielding trees and if any fall down of itself, the lessees shall plant another tree in the same place It further provides that if the lessees keep a single pie of the rent in arrear for three installments, the lease shall come to an end. 22. Then, again, we find that most of the leases, if not all, Sir W.W. Hunter's Statistical Account of Bengal, Vol. XVI, p. 123 were granted in the names of two persons. Why should that be, if the leases were intended to be permanent and heritable? 22. Then, again, we find that most of the leases, if not all, Sir W.W. Hunter's Statistical Account of Bengal, Vol. XVI, p. 123 were granted in the names of two persons. Why should that be, if the leases were intended to be permanent and heritable? The evidence on the side of the Defendants is far from furnishing any explanation; while the evidence on the other side furnishes a clear explanation consistent with the case of the Plaintiff that the leases were intended to last only for the life-time of the grantees. The grantees wanted to secure as long a duration for the leases as they well could and they accordingly insisted upon the leases being granted in two names to last during the life-time of the longer liver of the two. In that way they, to a certain extent, diminished the risk of the leases being terminated with the life of one; and what is most significant, we find instances in which the two names are the names of father and son, or grandfather and grandson. Why should that have been the case if the leases were intended to be heritable? There is another circumstance appearing in the evidence, which is not without significance, namely, that, whereas leases which were admittedly of a permanent and heritable character had the nazarana or bonus paid entered in them, in the case of the leases in dispute and of the other 600 leases connected with these, the nazarana paid was deliberately omitted to be mentioned. So much for the circumstances under which the leases were granted which are adverse to the Plaintiff's contention. 23. Then with regard to the acts and conduct of the parties, there is not a single instance given of the successors of the grantees in any case seeking for or insisting upon the registration of their names in place of those of the original grantees and it is admitted that no transfers have been registered and that the Maharaja refused to register any transfer. 24. That being so, we must hold that there has been nothing shown in the circumstances under which the leases were granted or the subsequent conduct of the parties from which it could be inferred that the leases wore intended to be perpetual. 25. 24. That being so, we must hold that there has been nothing shown in the circumstances under which the leases were granted or the subsequent conduct of the parties from which it could be inferred that the leases wore intended to be perpetual. 25. It remains, now to notice the fourth and last point raised in the case, namely, whether any notice was necessary for the maintenance of the suit and if so, whether the notice given was not a bar to the claim for mesne profits for 1955 Sambat. Of course, if a notice was necessary, the terms of the notice would lend support to the contention that the claim for the mesne profit for 1955 was not maintainable. But we are of opinion that H no notice was necessary for the maintenance of the suit and the in terms of the notice go to show that though notice was given, the Plaintiff did not admit that such notice was necessary. The notice states that although the leases came to an end upon the death of Sheotahal Ram Sahu, the last of the lessees and the mauzas were brought under resumption, the Defendants, without any reason, refuse to give up possession and the notice was given evidently with a view to remove any possible objection that might be made. In the view we have taken of the nature of the leases we do not think that any notice was necessary for the maintenance of the suit. In that view of the case there can be no objection to the Plaintiff's recovering mesne profits for 1955. The result is that the points for determination must be decided in favour of the Respondent and this appeal dismissed with costs.