Judgement In the six consolidated appeals the Court of the Judicial Commissioner (December 19, 1899) in some cases reversed, and in others affirmed, decrees of the Additional Civil Judge of Lucknow. The question raised in these appeals was whether the respondents hold under-proprietary rights in the villages respectively the subject of the suits brought against them. The appellant is the taluqdar of the taluqa of Bilaspur, in Oudh, and is now commonly known as the Taluqdar of Atraula. The second summary settlement of the taluqa was made with Rajah Omrao Ali Khan, the grandfather of the appellant; and later a sanad therefor was granted to him. The villages in all the suits are situated within the taluqa. Rajah Omrao Ali Khan died in or about the year 1860, and was succeeded by his son Rajah Riasat Ali Khan. The latter died in the year 1865, and was succeeded by his posthumous son, the appellant. Being a minor, his estate was taken under the management of the Court of Wards, which remained in possession thereof till October 6, 1886, on which date the appellant attained majority. The regular settlement of the Gonda district, in which all the villages are situated, was made during this period of minority. A very large number of persons, including the respondents or their predecessors in title, claimed under-proprietary rights against the taluqdar, and most of these claims were admitted. That some of the claims were fraudulently admitted by the agents of the Court of Wards has already been established by judgments of their Lordships of the Privy Council. Decrees of the settlement Court were made in favour of the claimants in accordance with the admissions. On attaining majority, the appellant instituted the present suits and many others. The plaints in each case set out the title of the appellant to the village in suit, and that the appellant attained majority on October 6, 1886, when the estate was released from the management of the Court of Wards. It was asserted that the decrees made at the time of the regular settlement were not binding on the appellant, because he was not properly made a party thereto; because the agents of the Court of Wards were not authorized to admit the claims ; and because the said admissions were fraudulently and collusively made. It was asserted that the decrees made at the time of the regular settlement were not binding on the appellant, because he was not properly made a party thereto; because the agents of the Court of Wards were not authorized to admit the claims ; and because the said admissions were fraudulently and collusively made. It was alleged that, independently of the said decrees, the respondents were not entitled to under-proprietary rights of any sort. The relief sought was the recovery of possession of the villages from the respondents. In No. 87 the village was named Dhaurari Dhaurera. The defence was that the defendants held under-proprietary rights under two grants made by Rajah Omrao Ali Khan on September 21, 1848, and January 25, 1850, and that the decree made at regular settlement was binding on the appellant. The grant, dated September 21, 1848, is in the following terms "I, Sri Khan-i-Azum Masnad-i-Ali Maharaj Raja Omrao Ali Khan, have executed a birt zemindari in favour of Fakir Baksh Mahton, in respect of village Dhurahra, a nankar estate, in Tappa Bahrampur of Pergunnah Atraula, in the Sarkar of Bahraich, and made over to him sajal, sakat, sapat in chatur siwan (i.e., the rights in water, wood and road within its four boundaries). He is to take possession and occupation of the village with (perfect) composure of mind, and to pay the Government due. He is to take one-fourth share of the Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 53 Government revenue as right of birt zemindari. The area of the village is fifteen hundred kham (village) bighas." The grant dated January 25, 1850, is in the same terms, without any reference to the previous grant. On July 8, 1872, a decree was made by the settlement officer on admission for under-proprietary right therein. The Additional Civil Judge dismissed the appellants suit. He decided that the appellant was not properly a party to the suit at settlement; that the admission was not made by any person duly authorized to do so; and that the decree dated July 8, 1872, was not binding on the appellant. He also decided that the defen dants did not hold under-proprietary rights in the village. He, however, considered that the suit was barred by limitation. He also decided that the defen dants did not hold under-proprietary rights in the village. He, however, considered that the suit was barred by limitation. The Judicial Commissioners Court decided that, as the appellant had not produced the papers given over to him by the Court of Wards, a presumption arose that Salig Ram, the manager of the estate, was duly authorized to confess judgment at settlement. That Court also decided that the respondents were birtdars, and that " A person holding a birt or birt zemindari tenure under which he receives one-fourth or one-tenth of the profits of the village, has a heritable and transferable right in that share." On these findings a decree was made, dismissing the appeal with costs. In No. 92 the village was named Pachauta, and the litigation followed a course similar to the last. In No. 96 the village was named Tataspur. In this case, in addition to the defences raised in the other suits, it was pleaded that the appellant had no title, and that his suit was barred. This plea prevailed with the first Court, the appellate Court holding that the appellant was bound by the decree passed at regular settlement, " and that on the merits the respondents as birtias had a heritable and transferable right in the village in suit." In No. 97 the village was named Gaur, and the defence was as in No. 87, except that no question of limitation was raised. In cases No. 101 and No. 81 the villages were Chatarpur and Kusahwa respectively, and the litigation was similar to that in No. 87, except that there was the further point that the appellant had ratified the decrees made at regular settlement by accepting rent thereunder. In the other two consolidated appeals the questions also related to the right of the appellant to recover possession of the villages or to receive a larger proportion of the profits from the respondents. In No. 84 the village was named Belha, and in No. 86 Badalpur Chaukandia. After the annexation of Oudh the first and second summary settlements were made with the respondents or their predecessors in title. In 1872 the assistant settlement officer, in suits brought on behalf of the appellant, dismissed his claim to superior title, and decreed in each case a malikana of 10 per cent, on the Government revenue. After the annexation of Oudh the first and second summary settlements were made with the respondents or their predecessors in title. In 1872 the assistant settlement officer, in suits brought on behalf of the appellant, dismissed his claim to superior title, and decreed in each case a malikana of 10 per cent, on the Government revenue. The Additional Civil Judge found that the villages were not part of the taluqa, that the respondents ancestors possessed the rights of birt holders prior to and irrespective of the decree of 1872, and were in possession of the property prior to both the summary settlements. The Judicial Commissioners Court con curred in dismissing the appellants suits, holding that the decrees at settlement were binding. Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 54 The main issue in all the cases was whether the birt tenures were heritable and transferable. Upon this question it will be seen that theirLordships adopted the conclusions of the Judicial Commissioner, and also the reasons on which they are based. The judgment, therefore, on this point is given in extenso as delivered in appeal No. 87, the judgments as delivered in the other cases being the same mutatis mutandis. Referring to the grant in that case as set out above, the learned Judicial Commissioner said — " The grant is not an isolated or anomalous grant. It is one made in pursuance of a widespread custom. Similar grants are common in the districts of Gorakhpur, Basti, Gonda, and Bahraich, and probably other sub-montane tracts where large areas of jungle had not been brought under cultivation. Probably the best description of them is to be found in the Gonda Settlement Report. " The author of the Gonda Settlement Report, after explaining the original structure of Hindu society in its simplest form as consisting of rajah and cultivator, in the north of the district, and its more complex form in the centre of the district, owing to the intervention in the majority of villages of bodies of hereditary birtias between the rajah and the cultivator, proceeds in paragraph 64 to explain the relationship between the rajah and the birtias. In paragraph 72 he states that waste lands were at the rajahs disposal. In paragraph 72 he states that waste lands were at the rajahs disposal. He might cede them on favourable terms to single speculators, who engaged to bring them under cultivation by introducing ploughs themselves. Having once so dealt with them he was bound by rules, which rules will be described when the division of the grain-heap and the position of the birtias are considered. After detailing the deductions from the grain-heap, the author proceeds—what is left is divided into two equal heaps, one for the rajah, the other for the cultivator; in local language the rajahs heap is known as hissa sarkari; and in paragraph 83 this or something essentially similar in principle is the method in use all over the districts for land in full cultivation and paying rents in kind. The produce is the common property of every class in the agricultural community from the rajah to the slave. No one is absolute owner, any more than the others, but each has his definite and permanent interest, (paragraph 84) the basis of the whole society being the grain-heap, in which each constituent rank had its definite interest. There is as yet no trace of private property, whether individual or communal, the rights which bear the nearest resemblance to ; it being the essentially State rights of the rajah. Independently J of the fact that it is still in many places in actual existence, its importance to the administrator lies in its being the original type from which all the different forms of landed property have been derived by processes, which may be easily traced, and whose operation is in most cases going on under our eyes. Its original form is modified by the growth of two institutions within itself, the birtia and the village zemindar; and by the operations of two external causes, the introduction of money into the relations between its various members and the encroachment of a foreign power on the prerogative of the rajah. "Paragraph 85.—‘Birt means a cession of any part of the rajahs rights within definite limits. “Paragraph 86.—‘The most important classes of birt were of two kinds, the birt zemindari and the birt jungal tarashi. "Paragraph 85.—‘Birt means a cession of any part of the rajahs rights within definite limits. “Paragraph 86.—‘The most important classes of birt were of two kinds, the birt zemindari and the birt jungal tarashi. Of the first kind, I know no instance more than two hundred years old; and by far the greater number were created within the present century, when the rajah granting them was out of possession of the lands to which they referred. So complete is the cession that it is not likely that the comparatively small gratuity, which formed the consideration, would have reconciled the rajah to the loss of his rights, had he been in actual fruition of them. So their existence may really be traced to the opera tion of the external forces just mentioned. They are most common in Utraula, Sadullanagar, and Burahpara, where the rajah had been longest, and most completely set aside, and in those parganas there is hardly a village where they do not constitute the charter of the present proprietary family. Their terms, which varied very slightly, were as follows The rajah cedes a certain plot of land, or a Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 55 village, to a certain grantee. He abandons all his rights in water, in wood, and in roads; the birtia on his part is bound to plough, and bring in ploughs, and the inhabitants are liable for the cash assessed by the nazim or chakladar on the village. In the event of a grain division (as described above) the rights of the birtia extends to one-fourth of the rajahs heap—87. In Gonda, Makunpur, and Bhawanipur birts were equally common, but on less favourable terms. The rajahs still retained considerable power, and in Gonda at least must have entertained strong hopes of recovering the whole. The birtias consequently were very seldom invested with the peculiarly zamindari attributes of manorial rights or transit dues, and their zeal in clearing the jungle was stimulated only by the perpetual cession in favour of themselves and their posterity of the old mukuddams deduction of one-tenth from the rajahs grain-heap. "The treatment of the Zamindars by the Mahomedan Government is explained in paragraphs 91 and 92 —‘The dehi nankar, allowed by the Government, usually bore, in the first instance, some definite proportion to the gross assets. "The treatment of the Zamindars by the Mahomedan Government is explained in paragraphs 91 and 92 —‘The dehi nankar, allowed by the Government, usually bore, in the first instance, some definite proportion to the gross assets. In Utraula, for instance, the rights of the birtias were respected, and they were allowed, as they would have been under the rajah, one-fourth of the state assets. This they continued to receive whenever the Government collections were made in grain. It was the general introduction of cash payments for whole villages that modified their position in this respect. "Paragraph 97.— It has been seen that in the original form of the society, money did not enter at all into the relations which subsisted between the purely agricultural classes, nor does it now in the north of the district, except in case of such crops as sugar-cane and poppy, whose division is effected with difficulty, and which occupy an infinitesimal proportion of the whole area. It is only in the rich, old cultivation between the Terhi and the Ghagra that money rents have been at all prevalent for a long time. Between the Terhi and the Kawana they are of recent and still partial introduction. They have, however, been for some time in use everywhere, where the nazims collected direct in the lump assessments on whole villages. They were recommended here by their obvious convenience, as it would have been an utter impossibility for any nazim to superintend the grain divisions in every village in his charge. The general result of their introduction was that the revenue ceased to bear a fixed proportion to the total produce.....As the revenue ceased to bear a fixed proportion to the produce, so did the nankar of the village proprietors, originally a stated share of the revenue, cease to fluctuate also. The same sum as had been originally assessed as their share continued to be remitted in their favour, whatever the lump assessment on the whole village might be. " Paragraph 102.—‘The general introduction of money pay ments had converted zemindari receipts from the land into something bearing resemblance to rent, and had undermined the fixity of tenure which was secured under the old system of payments in kind. " Paragraph 59 of the Basti Settlement Report shews the form of birt-patr prevalent in that district. It is very similar to the form in use in Gonda. " Paragraph 59 of the Basti Settlement Report shews the form of birt-patr prevalent in that district. It is very similar to the form in use in Gonda. The rajah surrenders water, wood and roads or transit dues within the four boundaries of the village. In the entire birt, half is declared to be revenue-free and half to be the right of Government. “ From paragraph 52 it appears that the settlement was made with the birtias on allowance of 10 per cent, being payable to the over-proprietors. "In paragraph 59 the settlement officer states With the exception of bansi, therefore, in every pargana there is, or was a landed aristocracy in regular gradation. At its head was the rajah in possession of whatever portion of the original domain had escaped alienation; next his more or less distant cousins and the members of his clan generally with their separate estates ; and after them the great body of birtias. "Birt" means the grant of a right in land by the original lord of the soil.....The birt grants Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 56 sometimes conveyed a full proprietary right, sometimes only a limited and temporary interest in the village..... Land was at first of little value, and rights in large tracts were made over for a nominal consideration or given away without any consideration at all.....But the common and ordinary form of birt merely conferred a limited and subordinate right. The birtias had the entire control of the village, but he was only allowed to retain a definite proportion of the profits, most commonly one-tenth or one-fourth, and was obliged to hand over the rest to the superior proprietor. In such cases the right, though limited, was complete as tar as it went. If the rajah, as he sometimes did, resumed the control of the village, he allowed the birtias to retain a one-fourth or one-tenth of the land, as the case might he, instead of his general birt right. I have come across several arazi holdings which arose in this way. If the rajah, as he sometimes did, resumed the control of the village, he allowed the birtias to retain a one-fourth or one-tenth of the land, as the case might he, instead of his general birt right. I have come across several arazi holdings which arose in this way. All the different classes of birtias, as well as most of the mukaddams or managing lessees have been treated as zemindars since 1839, and the settlement has been made with them in full pro prietary right, subject in some cases to the payment of a malikana allowance of 10 per cent, to the superior proprietor. " Paragraph 194 of the Gorakhpur Settlement Report contains extracts from the Gazetteer, and a form of modern birt, merely stating that the village is assigned in birt and the birtia is to pay the rates payable by birtias in general. The terms are not nearly as precise as the deeds in use in Gondi and Basti. " Paragraph 194 proceeds ‘The nature and rights of a tenure so common in the district formed the subject of long inquiries and deliberations at each recurring revision of assessment. The chief point was to ascertain whether the birt-holders (birtia or birtias) were or were not proprietors entitled to engage for the revenue. The Government at first took the negative view and directed settlements with the rajahs and taluqdars; but in 1835 the board changed its mind. On the report of the Collector, Mr. Armstrong, it held that the tenure was heritable and transferable, and-that the birtias must be considered as proprietors of the villages held by them. Settlement has ever since been made with the birtias themselves, who have thereby become independent of their feudal chieftains. But they must still pay into Government treasury, to be credited to those chieftains, a seigniorial fee (malikana) of 10 per cent, on their revenue. " An opinion is expressed that mukaddam birts carrying an allowance of one-tenth of the assets, were merely granted during the pleasure of the grantor. Paragraph 196 contains a further extract from the Gazetteer to the effect that the mukaddam tenure is to all effect a zamindari. " An opinion is expressed that mukaddam birts carrying an allowance of one-tenth of the assets, were merely granted during the pleasure of the grantor. Paragraph 196 contains a further extract from the Gazetteer to the effect that the mukaddam tenure is to all effect a zamindari. Paragraph 197 states that at the cession of the district to the English Government a vast majority of the land was either revenue-free or waste land belonging to Government, and, although the rajahs and grantees owned all the cultivated land paying revenue, yet the cultivation was arranged for eitherthrough the agency of birtias or mukaddams. The birtias held or claimed to have their lands under written grants acquired from the rajahs by gift or by a form of purchase. To shew that birt often was a recognized mode of M acquiring land with sale and mortgage, an instance is unearthed from the records of 1817, where the Rani of Satasi offers to sell 19,000 bighas cultivable land outright at Rs. 2 per bigha or to give it in birt at R. 1 per bigha, and subject to an annual payment of one-fourth of the produce. The duties of birtias are defined to be to clear and cultivate the land, and to make certain annual payment known as malikana. At the time of the cession of Gorakhpur to the British, most of the revenue-paying land was in the hands of birtias. The whole of Pargana Maghar, the Bansgaon Tahsil, as well as the greater part of Salempur Majhauli, were then the property of birtias. " In paragraph 198 the author, having disposed of birtia communities with acknowledged rights, proceeded to the mukaddam class of birt. He considered that this tenure was originally of a non-proprietary character. After some oscillations of policy, the mukaddams were acknowledged by Government as the subordinate proprietors, and engagements were taken from them. Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 57 " The Bahraich Settlement Report, referred to at pp. 176-179 of Sykes Compendium, contains a specimen form of birt deed in force in Bahraich. It contains a provision that the birtia is to get continuously the zamindari dues, whether the village is direct or kham. The taluqdar consented to a sub-settlement decree being passed on that document. 176-179 of Sykes Compendium, contains a specimen form of birt deed in force in Bahraich. It contains a provision that the birtia is to get continuously the zamindari dues, whether the village is direct or kham. The taluqdar consented to a sub-settlement decree being passed on that document. The settlement officer described the birt as consisting in the sale of the right to settle on a certain plot of waste and to enjoy all such valuable perquisites as would necessarily result from that occupation. The settlement officer only knew of one instance in the Bahraich district in which the birtia had obtained one-tenth of the gross produce of the village. He considered that the right of management was expressly reserved to the grantor at his option by the terms of the deed. "It will be apparent from the above quotations that a birt grant was usually made by a person in the position of a Hindu rajah or governor as an act of State in sub-montane districts for the purpose of bringing waste lands under cultivation. The grants are, analogous to grants made by the British Government under the waste land rules. The necessities of the case demand fixity of tenure. It is inconceivable that any reasonable man would pay large sums of money and spend his labour and capital in reclaiming jungle, if his position were no better than that of a tenant at will. A small minority of Revenue officials was of opinion that the rajah had a right to resume such grants. It was admitted, however, that force was the prevailing element MacAndrews Some Revenue Matters, p. 26. " That was not the view held by the majority of Revenue officials, or by the Government, or by the Legislature; and, indeed, the question of resumption was nothing more than a question as to which of two partners should be the managing partner. It is indisputable that on resumption the birtia would still take his one-quarter share of the rajahs grain-heap. The only difference would be that the rajah would arrange for the cultivation of the village instead of the birtia. The quotations from the Basti and the Gonda Settlement Reports establish, this. It is indisputable that on resumption the birtia would still take his one-quarter share of the rajahs grain-heap. The only difference would be that the rajah would arrange for the cultivation of the village instead of the birtia. The quotations from the Basti and the Gonda Settlement Reports establish, this. This is in pursuance of an ancient and invariable custom prevailing all over the North of India by which a proprietor, who is excluded from the management of the village, invariably retains his sir, or nankar, or specified share of the income. " In one of these appeals (That is in No. 92, relating to Pachauta.) there is a strong corroboration of this. On the birtia refusing to pay the sum of rent of Rs. 500 claimed by the rajah, Rajah Umrao Ali Khan, grandfather of Rajah Mumtaz Ali Khan, at once conceded the birtias right to receive an annual payment of Rs. 125 during the time of his exclusion from the management. These deeds, therefore, indisputably convey a right in perpetuity to the particular share of produce specified therein. " In the districts of Gorakhpur, Basti, Gonda, and even in Bahraich, notwithstanding the peculiar stipulation in the deeds there current, they have been held to also convey in perpetuity the right to the management of the village. Whole parganas and whole tracts of country in those districts are to this day held in proprietary and under-proprietary right under these deeds. I may note here an error into which the Court below appears to have fallen. The deeds do not purport to be pattas or leases. They are correctly described as birt-patrs, or deeds of cession. There can be no doubt that in general the resumption of such tenure was an act of might rather than of right. That is the opinion to which the Government and the Courts have come after long experience over large tracts of country. I have no doubt that that conclusion is a just and true conclusion, and that it is in accordance with the law and customs of the people. " I hold, therefore, that a person holding a birt or birt zemindari tenure, under which he receives one-fourth or one-tenth of the profits of the village, has a heritable and transferable right in that share, whether excluded from the village management or not. There is in general a presumption that he is Law. " I hold, therefore, that a person holding a birt or birt zemindari tenure, under which he receives one-fourth or one-tenth of the profits of the village, has a heritable and transferable right in that share, whether excluded from the village management or not. There is in general a presumption that he is Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 58 also entitled to retain in perpetuity possession and management of the village, though this presumption may be rebutted by the terms of the grant. "For the rajah, Mr. Lincoln contends that unless the birt-patr contains terms giving a proprietary right in perpetuity, the defendants have not established their case. That, no doubt, is a doctrine of the English law; I do not think that it is applicable to the present case. I do not think it is possible to apply the ideas prevailing in the mind of an English conveyancer to the construction of a document drawn up in the form used by Hindu conveyancers. In the case of Balkishan Das v. W. F. Legge (( 1897) I. L. R. 19 Allah. 434.), now in appeal before Her Majesty in Council, the difficulties of applying the rule of English Law to documents drawn up in the Mahomedan form of conveyancing are apparent. Rajah Muhammad Khan was no doubt a Mahomedan. He, however, held the Hindu office of rajah. His grant is in the ancient Hindu form, couched in terms borrowed from the Sanskrit language. In my opinion the document should, under the rule of justice, equity, and good conscience, be construed in accordance with the ideas prevailing among Hindus. In S. C. No. 291, Dr. Howell has discussed at some length the presumptions arising in such case. As regards presumptions arising from a grant by a Hindu, he holds that, subject to certain limitations, the presumption is that the grant is in perpetuity. In Selections from Oudh Government Records (Groves), p. 40, the kanungos and zamindars of the Hardoi district expressed their opinion to the settlement officer that a tenant holding a grove might plant new trees in the place of old trees on the principle that what has been given has been given, that is to say, there is a presumption in favour of perpetuity. I hold that a gift of lands made by a birt-patr, even if not containing express words of inheritance, is presumed to carry an estate of inheritance. " For the rajah, Mr. Lincoln concedes that if their Lordships of the Privy Council, with complete evidence before them, adopt the same view that they adopted in the case of Ram Autar v. Muhammad Mumtaz Ali Khan (L. R. 24 Ind. Ap. 107.), with limited evidence before them, then it will follow that a very large number of cases decided by the settlement Courts in Gonda must have been decided on an erroneous principle. Mr. Lincolns argument comes to this that officers who were appointed for the sole purpose of studying the history and institutions of the people in order that they might be able to correctly decide their legal rights and who spent years on the spot in close contact with the people in performing this duty, with the conspicuous ability displayed in the Gonda Settlement Report, must have entirely failed to arrive at the truth. I should be unwilling to arrive at such a conclusion. Mr. Lincolns argument, however, goes further than this. He not only says that the managing and collecting tenure of the whole village cannot have been in perpetuity, but he says that if the rajah resumed the village, the birtias would not even be entitled to retain their right to receive from the rajah one-quarter of the profits, notwithstanding that they might have expended large capital in reclaiming the village from jungle. Mr. Lincoln, therefore, calling in aid doctrines borrowed from the law of England, is compelled to place himself in opposition, not only to the opinions framed by the Government and the Courts in every district in which the birt tenure is known to exist, but also in opposition to the ancient custom of the country acknowledged by his clients grandfather in the case of Pachauta in 1861. I cannot accept his views. " The argument that acceptance by the birtia of leases for a short term is inconsistent with a permanent grant appears to me to be untenable. It is only in recent years that corn rents have been converted into cash rents. The process is not yet complete in Gonda. Under corn rents, leases would not be necessary. Under cash rents, however, re-assessments are necessary after certain periods. It is only in recent years that corn rents have been converted into cash rents. The process is not yet complete in Gonda. Under corn rents, leases would not be necessary. Under cash rents, however, re-assessments are necessary after certain periods. These leases for a term were merely intended to assess the cash rent for a few years in lieu of corn rents without in any way infringing on the birtias permanent right to one-quarter of the rents and profits, which right is distinctly reserved to him by those very leases. Nearly al proprietors and under-proprietors in these provinces are subject to re-assessment at the close of settlement. By signing Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 59 an agreement to pay a fixed amount for thirty years they do not forfeit their permanent interests in their estates. Sect. 68, clause 2, of the Oudh Rent Act, 1886, lays down that a person having certain rights in a land does not lose them by subsequently taking a theka or mortgage in which his holding is comprised. In my opinion these leases are not inconsistent with a right in perpetuity vested in the birtia. The same view has been held in Ram Bharos v. Lal Achal Ram (Select Division of Board of Revenue, 1891.), following a decision of this Court in Rent Appeal No. 165 of 1890. (Mahant Gurcharan Bhadi v. Shambhu Dat Ram.) " The learned counsel for the rajah strongly contended that the present case was on all fours with that of Ram Autar v. Muhammad Mumtaz Ali Khan. (L. R. 24 Ind. Ap. 107.) It is seldom profitable to attempt a close comparison of the facts of different cases. In the present case the proposed comparison appears to be more than usually unprofitable. In that case Salig Ram; who confessed judgment, was an interested person. In this case it is not shewn that he was personally interested. In that case the muafi statement was not supported by the evidence of the rajah and the patwari and the other persons. In the present case grants have been produced. The purport of them has been fully explained by reference to works of great authority on the subject. The nature of the grant in that case appears to have been uncertain. In the present case grants have been produced. The purport of them has been fully explained by reference to works of great authority on the subject. The nature of the grant in that case appears to have been uncertain. In the present case the grant is one of zemindari birt. The evidence in that case was somewhat defective. In the present case some of those defects have been made good. In the present case the statement of Rajah Umrao Ali Khan has been produced, and the respondents have endeavoured to explain the customary incidents of the birt tenure, which does not appear to have been attempted in the case of Ram Autar. The main grounds of decision in the case Ravi Autar v. Muhammad Mumtaz Ali Khan (L. R. 24 Ind. Ap. 107, 114.) are totally different from the facts of the present case. The cases are clearly distinguishable. The learned counsel for the respondents referred to the authorities cited in Sykes Compendium, p. 302. He contended that a birt was a cession of rights by purchase, and that it was not a lease of property. He contended that if any doubt existed as to the grant being one in perpetuity, the fact that one descent had been shewn from Fakir Bakhsh to Rajai would establish the perpetual character of the grant. He further contended that Act XXVI. of 1866 was not exhaustive; that it applied only to the case of zemindars entitled in their own right whose villages had in some manner become included in a taluqa. He contended that the Act did not apply at all to the case of a grant by a taluqdar, where the grantee had continued in possession from the date of the grant. He cited the case of Sri Maharajah Drig Bijai Singh v. Gopal Dat Pandey. (( 1879) L. R. 7 Ind. Ap. 17.) " The appellant, on the other hand, contended that the defendants must bring their case within Act XXVI. of 1866. On the authority of the case of the widow of Shankar Sahai v. Raja Kashi Parshad (( 1876) L. R. 4 Ind. Ap. 198.) I hold that Act XXVI. of 1866 is not exhaustive. The rules referred to in the Act do not appear to me to be intended to cover the case of persons claiming by grant from the taluqdar. Ap. 198.) I hold that Act XXVI. of 1866 is not exhaustive. The rules referred to in the Act do not appear to me to be intended to cover the case of persons claiming by grant from the taluqdar. I hold that a right to sub-settlement can be proved otherwise than under Act XXVI. of 1866. “The respondents have established their right to hold the village under grant from the taluqdar as their heritable and transferable estate. The estate has made one descent from Fakir Bakhsh to Rajai, and the respondents have established their possession from the time of the grant till the first summary settlement." De Gruyther, for the appellant, contended that the respondents had not proved any right to a heritable and transferable interest in the villages in suit as against the taluqdar. The grant of a birt-patta did not of itself import a heritable estate. He referred to Muhammad Mumtaz Ali Khan v. Sheoratangir (L. R. 23 Ind. Ap. 75, 82.); Ram Autar v. Rajah Muhammad Mumtaz Ali Khan. (L. R. 24 Ind. Ap. 107, 114.) He referred to the decrees by the settlement Court, and submitted that the appellant was not bound by them. He was a minor at the time and was not properly represented before the Court. With Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 60 regard to these tenures having already passed by inherit ance, he submitted that that was during the minority of the appellant, and that consequently no inference should be drawn therefrom that the estate was heritable see Gowri Shunker v. Maharajah of Bulrampore. (( 1878) L. R. 6 Ind. Ap. 1.) He referred to the temporary leases granted in the cases, and contended that these would have been unnecessary if the respondents held absolute tenures. He referred also to the Record of Rights Circular No. 2 of 1861, as quoted by Sykes, p. 174, and by Sir J. Colvile in L. E. 6 Ind. Ap. 155 et seq. Cowell, for the respondents in all the cases except No. 96, was not heard. Appeals Nos. 81, 87, 92, 96, 97, and 101 of 1903. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. Ap. 155 et seq. Cowell, for the respondents in all the cases except No. 96, was not heard. Appeals Nos. 81, 87, 92, 96, 97, and 101 of 1903. The judgment of their Lordships was delivered by SIR ANDREW SCOBLE. In the six cases out of which these consolidated appeals have arisen, the plaintiff was Rajah Muhammad Mumtaz Ali Khan, the Taluqdar of Atraula, and the defendants were persons who, either by themselves or their predecessors in title, claimed under-proprietary rights in villages in his taluqa. These rights are what are known in Oudh as birt, or birt zemindari rights; and the question for decision is whether persons holding under this tenure have a heritable and transferable right, as against the taluqdar, in the villages in respect of which the birt has been created. In Mr. Sykes valuable Compendium of the Law specially relating to the Talukdars of Oudh (p. 173) it is stated that " there are several descriptions of birt known in Oudh, but .... the true birt is that known as the bai birt, created by the talukdar or proprietor for money paid." In the Gonda Settlement Report —and the cases now under appeal come from that district—the bai birt is spoken of as birt zemindari. In the circular known as the Record of Rights Circular No. 2 of 1861, the Chief Commissioner of Oudh deals very fully with the subject of birt tenures, and lays down" the policy of the Government in regard to them. " Birts," he says, "were given for whole mauzas, or patches of land in mauzas.....These tenures, when granted by the talukdar for money received, will be maintained as representing the proprietary rights of the birtias who by purchase have acquired the position of intermediate holders, and as constituting the portion of the profits left them by the talukdar.....Birts of entire mauzas are very common in Gonda and Gorruckpore. They originated in purchases from needy talukdars, and sometimes in clearing leases of jungle land. They originated in purchases from needy talukdars, and sometimes in clearing leases of jungle land. In the Ootrowla (Atraula) and Bubnee pergunnahs of the Gonda district, the birtias had been in many instances admitted to direct engagements with the native Government for years previous to annexation, and, of course, were settled with then, and should have been at the late summary settlement, on the principle that we are not bound to restore to the talukdars what they had lost before our rule commenced" (Sykes, p. 174). And the policy of the Government is thus declared " The Chief Commissioner is clearly of opinion that the birtias who were found in direct engagement with the State at annexation, or who have uninterruptedly held whole villages on the terms of their pottahs under the talukdars, must be maintained in the full enjoyment of their rights, in subordination to the talukdars." It appears to their Lordships that, if the respondents in these cases have shewn themselves to come within the benefit of the policy announced in this circular, they acquired, upon the annexation of Oudh by the British Government, absolute under - proprietary rights as against the taluqdar in them villages in suit. The learned Judicial Commissioner, Mr. Blennerhassett, in a series of very able and careful judgments, has decided in their favour, and their Lordships entirely accept his conclusions, and the reasons on which they are based. They will humbly advise His Majesty that these Law. Rep. 34 Ind. App. 142 ( 1906- 1907) Rajah Muhammad Mumtaz Ali Khan V. Murad Bakhsh 61 appeals ought to be dismissed, and the decrees of the Court of the Judicial Commissioner confirmed. The appellant must pay to the respondents who appeared one set of their costs of the appeals. Appeals Nos. 84 and 86 of 1903. The decision in these appeals follows that in the six cases already disposed of. It may be noted that, in these two cases, the relation or the birtias to the taluqdar was fixed by orders of the Settlement Court as long ago as 1872. These orders were not made by consent, but after examination of witnesses and hearing all parties. The decision in these appeals follows that in the six cases already disposed of. It may be noted that, in these two cases, the relation or the birtias to the taluqdar was fixed by orders of the Settlement Court as long ago as 1872. These orders were not made by consent, but after examination of witnesses and hearing all parties. Moreover, it would seem from the judgment of the Judicial Commissioner that he would have had "no difficulty in finding" that the respondents or their predecessors in title held "direct under native rule, and after annexation,” and that the taluqdar is only entitled to a malikana allowance. Their Lordships will humbly advise His Majesty that these appeals ought to be dismissed, and the decrees of the Court of the Judicial Commissioner confirmed. The appellant must pay the costs of the appeals.