JUDGMENT Jenkins, C.J. - This and the several connected appeals arise out of suits brought to recover possession of a number of immovable properties on the ground that the several leases under which they were held have determined by the death of those to whom the leases had been granted. 2. In their broad features the cases are all alike. 3. This suit was institued by Maharaja Ram Narain Singh and on his death his heir and legal representative Lakhi Narain. Singh was substituted in his place. Lakhi Narain Singh is a minor under the Court of Wards and Mr. Macgregor is his next friend. 4. These leases were granted, not by Maharaja Ram Narain Singh, but by his predecessor Raja Ram Nath Singh, who died towards the end of 1866. 5. There is no dispute as to the fact of the leases; the question is whether the grantees, under them acquired interests terminable on death or heritable and permanent. 6. The suits were heard by the Subordinate Judge of zilla Hazaribagh who after a prolonged hearing decided against the Plaintiffs. From ids decree appeals were filed and they were heard at great length by Woodroffe and Coxe JJ. These learned Judges differed in opinion and so the decree was confirmed (Section 98 of the Code of Civil Procedure). 7. From this judgment of the High Court, the present appeal has been preferred by the Plaintiff under Clause (f) of the Letters Patent. The terms of the lease in this appeal are set out in the judgment of Woodroffe J. and I need not repeat them. It will be observed that the lessees are two in number, Dilo Mahato and Chola Mahato. They were brothers. The date of the lease is the 15th Aswin Badi, 1922 Sambat (the 19th September, 1865). The document states that the brothers "have obtained 'istemrari mokarari' of mouza Mandramo, one village in pergana Rampur exclusive of jaigir and birt land, coal mines and subsoil rights from 1922 Sambat at an annual jama of Company's Rs. 672." The lessees then express their readiness to cultivate and improve the village, to keep the tenants contented and to construct altars and so forth. 8. The rent is payable in kists and provision is made for certain small salamis. Default in payment of rent is to involve cancellation of the mokarari. 672." The lessees then express their readiness to cultivate and improve the village, to keep the tenants contented and to construct altars and so forth. 8. The rent is payable in kists and provision is made for certain small salamis. Default in payment of rent is to involve cancellation of the mokarari. Losses from drought and so forth are to fall on the lessees who undertake not to do anything injuriously affecting boundaries. Power to transfer is withhold, the cutting down of fruit-bearing and income-yielding trees is forbidden and the obligation to replace fallen trees is imposed on the lessees. 9. Though it is not so expressed in the lease, a nazarana equal in amount to one year's rent was paid as a consideration for the lease. 10. The leases to which this litigation relates were executed between the 27th of November, 1864 and the 22nd September. 1865 and they were the result of a change in the administration of the Raj. Whether they are actually from the same draft or not is, I think, immaterial: they are for She one and the same purpose and are a part of one and the same scheme of estate administration. 11. Before 1864 the practice had been to let out the land on short ticca leases of 5 or (5 years. This was found to be unsatisfactory and leases in mokarari istemrari were introduced, it is conceded by the Plaintiff that the new system secured to the lessees fixity of rent and a measure of continuity, but it is maintained by him that this continuity was limited to the lives of the grantees in the absence of words of inheritance, such as naslan bad naslan or ba farzan-dan or al-aulad. 12. Before us the Plaintiff has contended that this case is concluded by authority and in particular he has relied on the decision of the Privy Council in Tulshi Pershad Singh v. Ramnarain Singh ILR (1885) Cal. 117 : L.R. 12 IndAp 205. This case, he maintains, establishes that the words istemrari mokarari in a patta, according to their customary meaning, are not alone sufficient to impart the quality of heritability, but that special circumstances or conduct are necessary and none such have been proved in this case. 13. The Defendant's case has been presented before us by Mr. This case, he maintains, establishes that the words istemrari mokarari in a patta, according to their customary meaning, are not alone sufficient to impart the quality of heritability, but that special circumstances or conduct are necessary and none such have been proved in this case. 13. The Defendant's case has been presented before us by Mr. Sarkar who has not followed the line of reasoning that commended itself to Coxe J. and in that I think he acted wisely. Nor has he adhered rigidly to the reasoning of the Subordinate Judge. 14. He has not disputed the applicability of the decision in Tulshi Pershad Singh's Case ILR (1885) Cal. 117; L.R. 12 IndAp 205; on the contrary he invoked its assistance, for he has claimed that it at any rate sanctioned the view that the words mokarari istemrari would suffice to create a heritable interest without express words of inheritance where local usage, the terms of the lease, the circumstances under which the lease was executed or the conduct of the parties justified that conclusion. And then he maintained that what was proved in this case sanctioned the view that a heritable interest had been created. 15. The phrase mokarari istemrari has been the subject of much discussion in the Courts and is to be found in many dictionaries and official manuals, but the pronouncement of the Privy Council in Talshi Pershad Singh v. Ramnarain Singh ILR (1885) Cal. 117 : L.R. 12 IndAp 205 roust be accepted by us as final. It is therefore necessary to see what precisely it was that this case decided. The question involved in Tulshi Pershad Singh's Case ILR (1885) Cal. 117 : L.R. 12 IndAp 205, was whether an istemrari mokarari patta was heritable or not. The lease was by the owner for the time being of a Raj to his son-in-law in renewal at an increased rent of a patta that had been executed in the year of the son-in-law's marriage. The locality was Bhagalpur. 16. ON the death of the grantee a suit was brought by the grantor's successor to recover possession of the ] land in the patta. It was based on the ground that as the patta contained 210 express words of inheritance such as "bafarzandan" or "naslan bad naslan" the grantee only took a life estate. The locality was Bhagalpur. 16. ON the death of the grantee a suit was brought by the grantor's successor to recover possession of the ] land in the patta. It was based on the ground that as the patta contained 210 express words of inheritance such as "bafarzandan" or "naslan bad naslan" the grantee only took a life estate. A custom of the Raj was also alleged under which hereditary grants for maintenance were only made to male members of the family and grants to daughters' husbands were for life. 17. There was evidence of grants to male members of the family and to sons-in-law and from these it appeared that in that family where hereditary interests were intended to be granted, words of inheritance were added. The Subordinate Judge held that the words "istemrari mokarari" alone conferred only a life estate and passed a decree in the Plaintiff's favour. 18. This decree was affirmed on appeal by the High Court where reliance was placed (among other things) on the improbability suggested by the fact that the grantee was a son-in-law. 19. ON appeal to the Privy Council the decision was upheld. Reference was made to decisions in Sudder Dewani Adalat and the High Court and then the judgment proceeded as follows: "After this review of the decisions, their Lordships think it is established that the words 'istemrari mokarari' in a patta do not per se convey an estate of inheritance, but they do not accept the decisions as establishing that such an estate could not 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 Courts to pronounce that the grant was perpetual." 20. Their Lordships proceeded to say, "Such an intention was not shown, in this case and in the argument before their Lordships the Appellant relied solely upon the terms of the patta. As has been said, their Lordships, having regard to the customary meaning of the words as established by the decisions noticed, are of opinion that they do not convey an estate of inheritance in this case." 21. As has been said, their Lordships, having regard to the customary meaning of the words as established by the decisions noticed, are of opinion that they do not convey an estate of inheritance in this case." 21. Of those decisions three are reported in the Sudder Narain Adalat Reports, one being Baboo Toolsee Nurain Sahee v. Baboo Modnurain Singh (1848) S.D.A. 752 : 10 I.D. (O.S.) 532 from Behar, the second Amiroonnessa Begum v. Hetnarain Singh (1853) S.D.A. 648, from Behar, the grant in that case being to a natural son and the third, Sarobur Singh, v. Rajah Mehendernarain Singh (1860) S.D.A. 577, from Bhagalpur. They all decide that the istemrari mokarari leases then under consideration were not hereditary but for the life of the grantee. 22. Passing to the decisions in the High Court, we find that Musstt Lakhu Kowar v. Roy Hari Krishna Singh (1869) 3 B.L.R.A.C. 226 came from Tirhoot. The Sudder ameen gave to the word istemrari the sense of perpetual this was reversed by the additional Judges of Tirhoot, but was restored by the High Court. 23. The comment on this case in Tulshi Pershad Singh's Case ILR (1885) Cal. 117 : L.R. 12 IndAp 205 suggests that, in their Lordships' opinion, the result might have been different, had the decisions of the Sudder Court previous to 1853 been referred to and the effect ascribed to them is "that the words when used in a patta had a customary meaning." 24. The decision referred to as "the other case in the High Court in 1877" would seem to have been Nam Narain Singh v. Amir Khan (1877) A.A.D. 533 of 187, (unreported), instituted on the 26th February, 1875, in the Civil Court of the Deputy Commissioner of the District of Hazaribagh. The question was whether under a grant in mokarari istemrari a heritable interest passed. The High Court, confirming the decree of the Judicial Commissioner by which the decree of the Deputy Commissioner of Hazaribagh had been in turn confirmed, held that the document must be construed as a lease in perpetuity which would descend to the heirs of the lessee. 25. Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh (1873) 13 B.L.R.P.C 124 : L.R.IndAp Sup. Vol 181, the next case referred to, came from Bhagalpore. 26. 25. Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh (1873) 13 B.L.R.P.C 124 : L.R.IndAp Sup. Vol 181, the next case referred to, came from Bhagalpore. 26. Their Lordships there referred to the expression mokarari istemrari and said it might be doubtful whether they meant permanent during the life of the person to whom they were granted or permanent as regards hereditary descent. 27. They do not seem to have drawn the distinction between the lexicographical and customary meanings, but to have accepted the sense of permanent or uninterrupted and treated the measure of performance as dependent on the subject-matter to which the term was applied, so that a life interest could as well be described as istemrari mokarari as a hereditary interest. There has been some discussion before us as to the precise force of the expression "customary meaning" as used by Sir Richard Couch. Mr. Sarkar contended that it had reference to proved local usage and to maintain this he referred to a remark in one of the noticed decisions of the Sudder Dewani Adalat. Sir Rash Behary on the other hand urged that its force was "accustomed," "popular," or "wonted." But its meaning is sufficiently established for our purposes by a decision of the High Court, binding on us, Narsingh Dyal Sahu v. Ram Narain Singh ILR (1903) Cal. 883, 886, to make further discussion unnecessary. It was there decided that a patta in the Hazaribagh district, in terms substantially identical with that in this case, came within the ruling in Tulshi Pershad Singh's case (1885) ILR 12 Calc. 117 : L.R. 12 IndAp 205. Nor does Narsingli Dyal Sahu's Case (1) stand alone. It was followed in Choudhri Gridhari Singh v. Maharaj Ram Narain Singh (1995) R.A. 89 of 1902, decided on 4th May. An application was made in that case for leave to appeal to His Majesty in Council, but it was refused by the Privy Council (1906) 10 C.W.N. cclxxxv. 28. Nor does Narsingli Dyal Sahu's Case (1) stand alone. It was followed in Choudhri Gridhari Singh v. Maharaj Ram Narain Singh (1995) R.A. 89 of 1902, decided on 4th May. An application was made in that case for leave to appeal to His Majesty in Council, but it was refused by the Privy Council (1906) 10 C.W.N. cclxxxv. 28. For the purpose of this case, therefore, it must be taken as settled that the phrase istemrari mokarari in a patta in the district of Hazaribagh do not per se convey an estate of inheritance, but that it is open to us to see whether (a) the other terms of the instrument, (b) the circumstances under which it was made, or (c) the subsequent conduct of the parties show the intention with sufficient certainty to enable us to pronounce that the grant was hereditary. 29. Beyond this it has been contended that the words istemrari mokarari have acquired a local or special customary meaning in the locality which implies succession. 30. There is authority for this contention in an interlocutory remark of Banerjee J. in Narsingh Dyal Sahu's Case (1903) ILR 30 Calc. 883, 886; whether it is the origin of the contention in this case or not appears to me to be of no real importance. 31. Before dealing with the contention of a special local meaning, it will be convenient to explain briefly the causes that led up to the grant of these istemrari mokarari leases. The former practice in the Raj had been, as I have already remarked, to let the villages to farmers on ticca leases of 5 or in some cases 6 years. 32. From the Tenure Report (to the admission of which in evidence no objection was taken, apart from the question of its relevance) it appears that Maharaja Ram Nath Singh, observing that these farmers under the short ticca system had no permanent interest in the well-being of their tenants and that the only object the farmers had was to screw as much as possible out of the raiyats without doing anything to improve their villages, in order to remedy these evils determined to create mokarari tenures. Accordingly in 1864 he gave all that came forward and agreed to pay double the rent formerly assessed on the village and a salami or nazarana equal to one year's increased rental, leases containing the words istemrari mokarari, but omitting all mention of heirs and successors. 33. The Plaintiff's witness Kissen Dyal confirms this statement as to the amount of nazarana. From the evidence of Chowdhuri Achhe Lal Singh, it seems that there had been great difficulty in collecting the ticca rent and this witness called by the Plaintiff, explains that there were three reasons for the mokarari settlements, (i) the improvement of the lands, (ii) the greater facility in the collection of rents and (iii) the increase of income. 34. Kissen Dyal deposes that there was a considerable debt of the Raj when Ram Nath came to the gadi and he explains that the mokararis fetched income and the income and the salami went to pay off the debt. 35. I will now deal with the contention that the local meaning of the words implies succession. 36. The Defendant bank in its written statement alleged that the term istemrari mokarari had obtained a customary meaning attached to it in the district of Hazaribagh, viz., that it was used whenever the lease was intended to be permanent and hereditary in character. Among the issues raised were the following: (i) Did the mokarari istemrari lease granting the village in suit to the original grantees secure any hereditably interest to the heirs or was it for the life only of the original grantees? (ii) Have the words mokarari istemrari any special customary meaning? 37. The trial Judge thought that in Hazaribagh the phrase indicated a permanent and heritable interest and though his reasoning may not be free from criticism, his view of a topic so essentially local is entitled to consideration. 38. Though these leases were a new departure in 1864, the learned Judge points out that istemrari mokarari was not an unknown phrase and that there were in this locality interests under gadi sanads known as mokarari istemrari which were heritable and not terminable with the life of the grantee. 39. One of such tenures, it is said, had actually been purchased by a predecessor of the Plaintiff. 39. One of such tenures, it is said, had actually been purchased by a predecessor of the Plaintiff. It is further brought to our notice that alongside of these permanent interests, there were others that were terminable to which the description istemrari mokarari was not applied. Then the mode in which these leases were registered has been invoked as a strong indication that the phrase was understood locally to confer a heritable interest. 40. Coxe J. treated the circumstance as conclusive: Mr. Sarkar was more moderate in his contention and in that I feel no doubt he was right. It may have been the official view that an istemrari mokarari lease was an absolute transfer, but there is nothing to show that the Government directions were limited to Hazaribagh On the contrary these registration rules would be of universal application and would govern official routine, notwithstanding the Privy Council pronouncement, just as we rind to be the case in the official Settlement Manual and Administration Report. 41. True it is that it does not appear that the Raja, or his men objected to the mode of registration, but we know little or nothing of the circumstances, certainly not enough to justify a conclusive inference as to the local meaning of the phrase. 42. Then it has been contended that the numerous transfers and other dealings with these istemrari mokarari interests is a strong indication of the local meaning of the phrase. These transfers and dealings may excite some sympathy and prompt a wish to assist those who have dealt with, these interests in the honest belief that they were hereditary. This, however, cannot take the place of proof and as proof I do not think the transactions come to much. An interesting synopsis of these transactions has been placed before us, which demonstrates the growth of the idea that permanent interests had been created. 43. The transfers have been collected under several heads. Under the first are dealings prior to the decision of Prem Koeri's suit by Col. Boddam on the 12th March, 1872 and in the documents of this period we find some such expression as "so long as the mokarari istemrari lasts." In the dealings during the period after the decision of Prom Koeri's suit and before the institution of Amir Khan's suit, no such qualifying words appear. Boddam on the 12th March, 1872 and in the documents of this period we find some such expression as "so long as the mokarari istemrari lasts." In the dealings during the period after the decision of Prom Koeri's suit and before the institution of Amir Khan's suit, no such qualifying words appear. In the final period, that is to say, after the decision in Amir Khan's Case (1877) A.A.D. 533 of 1876, we find in the instruments such expressions as this "I or my heirs," or "descending to progeny," "generation after generation" "absolute owners," "perpetual right of the proprietor." 44. If the public now deal in these istemrari mokarari leases as though they were perpetual, it may be that they are influenced by the decisions in Prem Koeri's suit and Amir Khan's suit. But that cannot be accepted as any indication of the sense in which the phrase istemrari mokarari was locally understood at the time the leases were granted and that is the point with which we are concerned. 45. But while the Defendant points to these transfers and dealings as indicating that istemrari mokarari leases were perpetual in character the Plaintiff relies on the fact that in many pattas express words of inheritance are to be found in addition to the phrase istemrari mokarari, as though that phrase would not alone suffice to create a perpetual interest. Indeed in some cases it is the grantees under istemrari mokarari pattas who take under the al-aulad grants. And the Plaintiff has followed this up by bringing to our notice an instance in which istemrari mokarari pattas have been converted into al-aulad puttas in consideration of the payment of a premium and an increased rent. It may be true that we do not know all the circumstances which led to this transaction, but that is almost inevitable having regard to the date; still it is not without its value as a support to the Plaintiff's contention. 46. There is oral evidence as to the existence or nonexistence of a special customary meaning of istemrari mokarari in Hazaribagh, but neither side has relied as much on it as on the other indications in the case and it certainly is not of a character to establish either the one view or the other. 47. 46. There is oral evidence as to the existence or nonexistence of a special customary meaning of istemrari mokarari in Hazaribagh, but neither side has relied as much on it as on the other indications in the case and it certainly is not of a character to establish either the one view or the other. 47. On the issue with which I am now concerned, what has to be proved is, not that in the opinion of anyone, whether a witness or not, the phrase istemrari mokarari implies heritability, but that in the district of Hazaribagh it has that special customary meaning. 48. In Narsinyh Dyal Sahui's Case (1903) ILR 30 Calc 883, which came from the district of Hazaribagh, no such special customary meaning was established; nor do I think it has been proved in the present case. And in coming to this conclusion I have endeavoured to give full effect not only to each separate circumstance on which the Defendant relies but to their combined operation. 49. Before leaving this part of the case, I would wish to make one saving reservation. I have, for the purpose of the argument, treated the words istemrari mokarari as capable of a special customary meaning denoting hereditability. But I do not decide that this is so and I would desire to reserve for future consideration the question what the true method of approaching the problem is. 50. Having then decided that the Defendant has not established a special customary meaning of the phrase istemrari mokarari importing succession, I now proceed to consider the terms of the lease, the circumstances in which it was executed and the subsequent conduct of the parties. 51. This is in accordance with the decision of the Privy Council in Tulshi Pershad Singh's Case (1885) ILR 12 Calc. 117; L.R. 12 IndAp 205, which in this respect reflects what was laid down in the earlier decision in Watson's Case (1875) 24 W.R. 176. Now, in dealing with this part of the case, it is at once apparent that to a greater or less extent the discussion of the several topics has been anticipated by the decision delivered by Banerjee J. in Narsingh Dyal Saha. v. Ram Narahi Singh ILR (1903) Cal. 833. 52. Now, in dealing with this part of the case, it is at once apparent that to a greater or less extent the discussion of the several topics has been anticipated by the decision delivered by Banerjee J. in Narsingh Dyal Saha. v. Ram Narahi Singh ILR (1903) Cal. 833. 52. On the question of the inference to be drawn from the terms of the lease, the materials before the Court were to all intents and purposes the same as they are in the present case and the Courts' decision was adverse to the Defendant's contention. But apart from this, I come to the same conclusion in this case. So far from these terms showing an intention to create a perpetual interest, they appear to me to tend in the other direction. In saying this I do not forget the provision as to improvements and the ingenious arguments founded on it. It is in terms that impose no duty to which a numerical expression can be given and does little more than declare that as between grantor and grantee the burden, of improvements is to fall on the grantee. With the actual improvements effected I will deal when I discuss the conduct of the parties. 53. On the other hand, the provisions as to trees and the restraint on transfer do not point to a grant in perpetuity. And I say this notwithstanding the suggested explanation based on Exhibit X 5. It is significant that these restrictions are not to be found in al-aulad grants. And the fact that the grants are made in two names, whether it be to husband and wife, father and son, grandfather and grandson, brothers, cousins or strangers, points, in my opinion, to leases for lives rather than in perpetuity. And in so saying I do not overlook Mr. 'Sarkar's argument that at any rate the fact that some of the leases were taken in single names shows that the grantees thought a right of inheritance was bestowed, as otherwise they would have insisted on two lives to prolong the term of the lease and all the more as some of these single lessees were servants of the Raj. But it may well have been their association with the Raj that accounted for this circumstance. 54. But it may well have been their association with the Raj that accounted for this circumstance. 54. And there is another matter, not without its significance, that although nazarana was paid, it was not mentioned in the patta, although, we are told, nazarana is expressly mentioned in those leases which are unquestionably perpetual. 55. This brings me to the circumstances in which the instrument was made, or, as it has been termed by their Lordships of the Privy Council, in Watson v. Mohesh Narain Roy (1875) 24 W.R. 176, "the circumstances existing at the time of the document being entered, into." I have already explained and need not repeat how these istemrari pattas came to be adopted. The rents, it will be remembered, were doubled and a nazarana was paid equal to one year's increased rent. It is a circumstance to be taken into account that, these istemrari mokarari leases were granted, not by way of bounty, but as a matter of bargain and I certainly do not overlook this fact and the contentions based on it. But it obviously is far from conclusive as the decisions show. 56. For the Defendant it is contended that the increased rent reserved and the nazarana paid afford strong proof that permanency was intended. The increase in rent, amounting, it is said, to Rs. 70,000 odd, is not without its relevance; it in some measure meets the usual retort that the landlord would not be likely to forego the favouring chances of future possibilities and it may even be utilized by the tenant for the purpose of contending that the only inducement for the high rent which perhaps exceeds the present productive capacity of the land is the certainty that future improvement and enhancement of value will recoup the outlay. But it detracts from the value of enhanced rent as an indication of permanency that the rent ceases with the determination of the interest. This, however, cannot be said of nazarana and if it be considerable in amount relatively to the value of the land, in other words, if it represents many years' purchase, it would undoubtedly tell in favour of permanency. In the cases before us the rent has been increased; and as far as I can judge the increase amounts to double the former rent. 57. Mr. In the cases before us the rent has been increased; and as far as I can judge the increase amounts to double the former rent. 57. Mr. Sarkar has argued that the increase was such that a rack rent became payable and on this he laid great stress; but I am far from being convinced of the correctness of his statement. On the contrary, it appears that in some cases at any rate properties were sublet at an increased rent. Moreover, it has to be borne in mind that an increase of rent was no new departure. On each new ticca there was an increase. It may have been only of one anna in the rupee, but then the term of the ticca was only five or six years. 58. The amount of nazarana was by no means so great as to suggest the inference that it represented the purchase of an interest in perpetuity and here too it must not be forgotten that a nazarana, though smaller in amount, was payable on the grant of ticca leases. 59. In connection with this part of the case, it was argued very strenuously by Mr. Sarkar that the Plaintiff had failed to call as a witness one Radhika Das, although he was in his list of witnesses and had failed to produce certain documents that had been called for by his client This, he maintained, entitled him to the benefit of the presumption that evidence which is withheld would be unfavourable to the person in whose possession or under whose control it is. But in my opinion the Plaintiff was under no obligation to call this witness; on the contrary, he may have had good reason for not putting him in the witness box. Nor is it proved to my satisfaction that there was any withholding of documents that would justify an unfavourable presumption. It is suggested that the applications for istemrari mokarari documents were called for but this is not made out. And for what it may be worth, a bundle of documents chosen at random were in the course of the argument produced by Sir Rash Behary for Mr. Sarkar's inspection and they disclosed nothing favourable to the Defendant. 60. This brings me to the consideration of the conduct of the parties since the execution of the lease. And for what it may be worth, a bundle of documents chosen at random were in the course of the argument produced by Sir Rash Behary for Mr. Sarkar's inspection and they disclosed nothing favourable to the Defendant. 60. This brings me to the consideration of the conduct of the parties since the execution of the lease. The conduct of the public would be relevant, if at all, only on the issue, with which I have already dealt, of the special customary meaning of the phrase istemrari mokarari. 61. The original lessor died so soon after the granting of the leases, i.e., in 1866, that there is no conduct on his part to be considered. 62. One transfer apparently was executed before his death, but no circumstances are disclosed which would give rise to any inference. And I would here recall the fact that I have already dealt with the general topic of transfers and their effect. And what I have pointed out in reference to transfers would apply with equal force to improvements. But then it is said that the case set up by the widow Prem Koeri in a suit brought by her in 1871 goes to show that the grants were regarded as more than for life. But at the same time the fact that she sought to resume equally demonstrates that she thought the grant was terminable, though she may have been under a misapprehension as to the life or lives by which it was to be measured. Nor can it be overlooked that Prem Koeri was only a widow and that the subsequent successor would not be bound by what she did. 63. The absence of a death register seemed to the Subordinate Judge to be a circumstance of some importance, as an indication that the leases were permanent, but there was no register of jaigirs--only notes,--and I do not regard the circumstance as of any great value. Nor am I able to hold on the strength of the Hakima Jaidad that, the mokarari pattas created estates of inheritance. 64. Apart from these several circumstances with which I have briefly dealt, there is no conduct which, helps the Defendant's case. On the contrary, we have the significant fact that the Plaintiff and his predecessor throughout disputed the grantees' claim to an interest in perpetuity. 64. Apart from these several circumstances with which I have briefly dealt, there is no conduct which, helps the Defendant's case. On the contrary, we have the significant fact that the Plaintiff and his predecessor throughout disputed the grantees' claim to an interest in perpetuity. This disposes of all the appeals, except those numbered 5, 11, 14 and 17. These have been separately discussed before us, but the lessees' contention has rested on a misinterpretation of the pattas to two persons. In my opinion, the duration of these pattas is to be measured, not by the continuance of the joint lives but also by the life of the survivor and this affords a complete answer to the pleas of limitation, recognition and occupancy right. In all other respects these appeals are governed by the same considerations as the remainder. 65. And as to them I have come to the conclusion that these istemrari mokarari leases have not conferred interests in perpetuity. In the suit out of which Letters Patent Appeal No. 2 of 1914 arises, therefore, I think the appeal should be allowed and the decree set aside and a decree passed in favour of the Plaintiff for possession of the property claimed in the plaint. 66. In view of the divergence of judicial opinion which has marked this case, we direct the parties to pay their own costs throughout. We further direct that the Plaintiff do recover mesne profits, up to the date of this judgment, at the rate at which rent is payable under the lease; if the Defendants choose to continue in possession, they will be liable for mesne profits at the full rate from after this date. 67. This judgment governs all the appeals and similar decrees will be drawn up in all the cases. Mookerjee J 68. The subject-matter of the litigation which has culminated in this appeal, is immovable property granted, by way of istemrari mokarari lease, on the 19th September, 1865, by the predecessor of the Plaintiff, the Maharaja of Ramgarh, to Dilo Mahato and Chola Mahato. The terms of the lease are set out in the judgment of Woodroffe J. and need not be reproduced hire. The terms of the lease are set out in the judgment of Woodroffe J. and need not be reproduced hire. On the death of both the lessees, the Plaintiff, instituted this suit for recovery of possession of the village from the Defendants, the representatives of the lessees, on the allegation that the lessees held under a life-grant. The Defendants contended that the leasehold interest was permanent and heritable and that they were entitled to hold the land as representatives, in interest of the original lessees. The question in controversy, consequently lay in a very narrow compass, namely, did the lease convey a permanent heritable interest as alleged by the Defendants, or an interest limited in duration to the lives of the lessees only, as the Plaintiff contended. The Subordinate Judge found in favour of the Defendants and dismissed the suit. On appeal to this Court, the Judges of the Division Bench were equally divided in opinion. Woodroffe J. took the view that the question should be answered in favour of the Plaintiff and the suit decreed. Coxe J. was of opinion that the view taken by the trial Court was correct and that the appeal should be dismissed. Consequently, the decree of the Subordinate Judge stood confirmed u/s 98(2) of the Code Civil Procedure, 1908. The present appeal has been preferred under Clause 15 of the Letters Patent and the argument, though possibly not so elaborate as those addressed to the primary Court or to the Division Bench have occupied ten days, although the question of the legal effect of an istemrari mokarari grant is by no means of first impression and has farmed the subject of discussion in cases of the highest authority, which are binding on us and cannot be ignored. 69. The question of the true meaning of the expression istemrari mokarari has been considered by the Judicial Committee on at least three occasions. In a Case of ghatwali tenures where the words mokarari istemrari were used, this Court ruled that the holding was perpetual: Munrunjun Singh v. Rajah Lelanund Singh (1865) 3 W.R. 84; on review, Rajah Leelanund Singh v. Thakoor Monorunjun Singh (1866) 5 W.R. 101. In a Case of ghatwali tenures where the words mokarari istemrari were used, this Court ruled that the holding was perpetual: Munrunjun Singh v. Rajah Lelanund Singh (1865) 3 W.R. 84; on review, Rajah Leelanund Singh v. Thakoor Monorunjun Singh (1866) 5 W.R. 101. On appeal from that decision, the Judicial Committee held that the expression might mean either permanent during the life of the person to whom the grant was made or permanent as regards hereditary descent: Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh (1873) 13 B.L.R. 124 : L.R.I.A. Sap. Vol. 181. This view was re-affirmed and amplified by the Judicial Committee in the case of Talshi Pershad Singh v. Ramnarain Singh ILR (1885) Cal. 117 : L.R. 12 IndAp 205, where Sir Richard Couch, observed as follows: "It is established that the words istemrari mokarari in a patta do not per se, convey an estate of inheritance, but they do not accept the decision as establishing that such an estate cannot be created without the addition of the other words that are mentioned (such as ba furzandan, naslan bad, naslan), 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." Sir Richard Couch here adopts the very words of Garth C.J. in Sheo Pershad Singh v. Kally Das Singh ILR (1879) Calc. 543. 555, subsequently affirmed on appeal to the Judicial Committee, Bilasmoni Dasi v. Raja Sheopersad Singh ILR (1882) Cal. 664 : L.R. 9 IndAp 33. This formulation of the true meaning and effect of the expression under consideration was based, be it noted, not on the special circumstances of the case, such as that the particular gift was to a son-in-law or that there was a family custom of life-grants, but upon a review of the earlier decisions on the subject, three of them given by the Sudder Dewani Adalat and two by this Court. The decisions in the Sudder Court, namely, Toolsee Nurain Sahee v. Baboo Modnurain Singh (1848) S.D.A. 752 : 10 I.D. (O.S.) 532, Ameeroonnissa Begum v. Hetnarain Singh (1853) S.D.A. 648 and Sarobur Singh v. Rajah Mehendernarain Singh (1860) S.D.A. 577, supported the view that a mokarari istemrari lease does not import heritability, unless expressions such as ba farzandan or naslan bad naslan find a place in the deed. On the other hand, the cases of Mussamat Lakhu Kowar v. Roy Hari Krishna Sing (1869) 3 B.L.R.A.C. 226 : 12 W.R. 3 and Nam Narain v. Amir Khan (1877) S.A. 533 of 1876, decided on 4th Sept, to which may be added the cases of Tekait Manoraj Singh v. Raja Lilanund Singh (1865) 2 R.L.R. 125 n and Karunakar Mahati v. Niladhro Chowdry (1870) 5 B.L.R. 652 : 14 W.R. 107 affirmed the proposition that the words mokarari istemarari contained in a patta must be taken in themselves to convey a hereditary right in perpetuity. The decision of the Judicial Committee overruled both sets of cases, the former in so far as it was held that express words indicative of heritability were not necessary to prove that a heritable interest had been created, the latter in so far as it was held that the expression indicated continuity of tenure but not necessarily permanency as regards hereditary descent. This view was treated as settled law in Beni Pershad Koeri v. Dudhnath Roy ILR (1899) Cal. 156 : L.R. 26 IndAp 216, where Lord Davey said that an istemrari mokarari tenure is not necessarily a perpetual hereditary tenure. Reference may, in this connection, be made to two other decisions of the Judicial. Committee. The Government of Bengal v. Nawab Jafur Hossein Khan (1854) 5 Moo. I.A. 467 and Bilasmoni Dasi v. Raja Sheopersad Singh ILR (1882) Cal. 664 : L.R. 9 IndAp 33, where the word mokarari was used without the addition of the word istemrari and it was ruled that though the term mokarari might import perpetuity, that was not the necessary meaning of the word. The exposition contained in these decisions of the Judicial Committee has been treated as conclusive in three recent cases in this Court: Agin Bindh Upadhya v. Mohan Bikram Shah ILR (1902) Cal. 20, Nursingh Dyal Sahu v. Ram Narain Singh ILR (1903) Cal. The exposition contained in these decisions of the Judicial Committee has been treated as conclusive in three recent cases in this Court: Agin Bindh Upadhya v. Mohan Bikram Shah ILR (1902) Cal. 20, Nursingh Dyal Sahu v. Ram Narain Singh ILR (1903) Cal. 883 and Choudhri Gridhari Singh v. Maharaj Ram Narain Singh (1905) R.A. 89 of 1902, decided on 4th May. In the case last mentioned, an application was made to this Court on the 23rd January, 1906, for leave to appeal to His Majesty in Council; the application was refused on the ground that the matter was concluded by the decisions of the Judicial Committee and the proposed appeal could not be said to involve a substantial question of law. An application was then made to the Judicial Committee, for special leave to appeal, but the application was refused: Choudhri Gridhari Singh v. Maharaj Ram Narain Singh (1906) 10 C.W.N. cclxxxv. In these circumstances, the attempt to establish, that the meaning attributed to the expression by the Judicial Committee is erroneous, by reference to lexicographical works or to the writings of authors of repute on the land-law of this province, can be characterised only as belated and futile; but I desire to add that, as will appear from the extracts from lexicographical works appended to this judgment, then; is really no foundation for the suggestion that the view taken by the Judicial Committee is erroneous. As regards the statement by Field in his Introduction to the Regulations of the Bengal Code, 1875 (p. 39) and by Phillips in his Tagore Lectures on Land Tenures, 1876, p. 347 it is plain that they have no independent value; it is no disparagement to the unquestioned erudition of these learned authors to point out that their view upon this question was based upon judicial decisions which can no longer be regarded as good law in view of the rule enunciated by the Judicial Committee in Tulshi Pershad Singh v. Ramnarain Singh ILR (1885) Cal. 117 : L.R. 12 IndAp 205. Thus, the notes to Section 18 of Reg. VIII of 1793 by Field make it manifest that he founded his view on the decisions in Mussamat Lahhu Kowar v. Roy Hari Krishna Singh (1869) 3 B.L.R.A.C. 226 : 12 W.R. 3 and Karunakar Mahativ. Niladhro Chowdhry (1870) 5 B.L.R., 652; 14 W.R. 107 which are also mentioned by Phillips. Thus, the notes to Section 18 of Reg. VIII of 1793 by Field make it manifest that he founded his view on the decisions in Mussamat Lahhu Kowar v. Roy Hari Krishna Singh (1869) 3 B.L.R.A.C. 226 : 12 W.R. 3 and Karunakar Mahativ. Niladhro Chowdhry (1870) 5 B.L.R., 652; 14 W.R. 107 which are also mentioned by Phillips. It is interesting to observe that Field himself makes a more qualified statement in his later work "Digest of the Law of Landlord and Tenant" (1879), page 25. Thus, whatever weight might otherwise be due to the opinions of Field and Phillips, the position is obviously different when we know the sources of their view and how their authority has been destroyed by subsequent pronouncements of the highest judicial tribunal. We must consequently accept the position as uncontestable that the expression istemrari mokarari does not per se convey an estate of inheritance, but that an istemrari mokarari patta, notwithstanding the absence of words indicative of heritability, such as ha farzandan, nastan bad naslan or al-aulad, may be a perpetual grant if the other terms of the instrument, the circumstances under which it was made, or the subsequent conduct of the parties, show such an intention with sufficient certainty. That this is a legitimate mode of enquiry is clear from the decision of the Judicial Committee in Watson v. Mohesh Narain Roy (1875) 24 W.R. 176. It is accordingly necessary to consider the case before us in each of the three aspects just mentioned. 70. First, as to the other terms of the instrument. These are by no means decisive in favour of the Defendants. The clauses which impose a restraint on transfer and on the cutting down of fruit-bearing or income-yielding trees and make it obligatory on the lessees to plant another tree in place of any that might fall down by itself, are not consistent with the theory that a perpetual grant was intended. On the other hand, the clause which throws the cost of improvement on the lessees indicates some measure of continuity, but not necessarily perpetuity. On the other hand, the clause which throws the cost of improvement on the lessees indicates some measure of continuity, but not necessarily perpetuity. The fact that the lease was in favour of two lessees--we are told that out of 591 leases of the same type as the one before us, as many as 515 were in favour of two persons--points to the conclusion that though some measure of continuity was desired, perpetuity was not intended; for if the lease was intended to be perpetual, it would be unnecessary to have recourse to the familiar device of a grant in favour of two or more persons so us to minimise the chance of expiry of the lease on the premature death of a single grantee. We have further the important circumstance that though a premium was paid, the fact was not recited in the deed; if the lease was intended to be perpetual, such recital could hardly have been omitted, for a substantial premium is one of the surest indications of a permanent grant. The terms of the lease, taken as a whole, do not, in my opinion, assist the Defendants ; on the other hand, they tend to weaken, if not to negative, the theory of a permanent grant. 71. Secondly, as to the circumstances under which the grant was made. It is established that up to 1861, the practice prevailed in the estate of the Maharaja of Ramgarh to grant temporary leases to tenants usually for a term of five years, in some instances for a term of six years; on each grant a premium of a year's rent was taken and upon the expiry of the terms, when a fresh grant was made, the rent was enhanced by one anna in the rupee. This system of temporary leases had resulted in its attendant evils; the lessees had no inducement to improve the lands; they were exposed to the temptation to exact from their under-lessees as much as they could during their terms and they were by no means punctual in the payment of rent to the Maharaja. To remove these evils and also to raise money to free the estate from the claims of creditors, a change in the mode of administration was introduced. To remove these evils and also to raise money to free the estate from the claims of creditors, a change in the mode of administration was introduced. Tenants were offered istemrari mokarari leases on condition that they agreed to pay double the previous rent and also paid a premium equal to one year's rental at the enhanced rate. The offer proved attractive and between the 27th November, 1864 and 22nd September, 1860, 611 such leases were granted; of these 591 have been traced. The result was the realisation of about Rs. 1,10,000 as premium, while the annual rent roll was raised by Rs. 70,000. Do these circumstances indicate with sufficient-certainty, an intention to create permanent leases? No doubt, something more stable and loss precarious than the temporary leases then usual was intended, but we cannot say definitely that a, perpetual grant was intended. True, the rent was doubled and a premium was paid to the extent of the new rent for a year; but we must remember that even in the case of successive temporary leases for short terms, the rent was enhanced, periodically and a premium was levied on each, occasion. I do not think it can reasonably be said that what the lessees risked by paying double the previous customary rent and by agreeing to pay double the previous bonus could have been risked by a business man only on the assumption that he was granted in return a perpetual tenure. A tenure certain for life of the longer liver of the two lessees was obviously more certain and continuing than a temporary lease for 5 or 6 years, so that the tenants might well have consented to the terms actually offered to them, it is besides clear that even the new rent could not be described as rack rent and left the lessees an appreciable margin of profit. My conclusion is that the surrounding circumstances, as they are known to have existed at the time of the execution of the leases, one of which is before us, do not assist the contention of the Defendants. 72. Thirdly, as to the subsequent conduct of the parties. We have here to consider conduct nearly contemporaneous with the execution, of the lease as also conduct many years later. 72. Thirdly, as to the subsequent conduct of the parties. We have here to consider conduct nearly contemporaneous with the execution, of the lease as also conduct many years later. Under the first branch, we have the circumstance that the leases were registered under the provisions of the Indian Registration Act (XVI of 1864) in a "register which., under the statutory rules then in force, was to record all absolute transfers of immovable property. Reliance has been placed upon the cases of Najibulla Mulla v. Nusir Mistri ILR (1881) Cal. 196; Jagatdhar Naraiu Prasad v. Brown ILR (1906) Cal. 1133 and Indra Bibi v. Jain Sirdar Ahiri ILR (1907) Cal. 845 In support of the contention that the mode in which registration was effected is relevant for the purposes of the present enquiry. Assume that this argument is well founded, but how does it assist the Defendants? The mode in which the registration was effected shows at best that the registrar took the leases to be perpetual grants. There is nothing to indicate that the lessor or the lessees made any admission before him on the subject. This factor is, in my opinion, not only not conclusive but its weight is infinitesimal. As regards the second branch, namely, conduct subsequent, so far as the grantor is concerned, there is nothing to bind him, as he died in 1866 shortly after the leases had been granted. As regards his successors, the only circumstance worthy of mention is an allegation, by Maharani Prem Koeri in her suit against Hitoo Koeree, decided by Col. Boddam on the 12th March, 1872, that an istemrari mokarari lease would continue so long as there were male heirs of the grantee. This is obviously valueless, first, because the statement by a limited owner could not bind the present Maharaja, and secondly, because the statement, taken as a whole, does not support the present case of either party. As regards the conduct of the grantees, reliance has been placed upon two circumstances, namely, first, that in some instances valuable improvements have been effected, and secondly, that successive transfers of the leasehold interest have been made on the assumption of its heritability and its permanence. As regards the conduct of the grantees, reliance has been placed upon two circumstances, namely, first, that in some instances valuable improvements have been effected, and secondly, that successive transfers of the leasehold interest have been made on the assumption of its heritability and its permanence. As regards improvements, the lease itself, as already stated, provides that the cost shall be borne by the lessees; consequently the fact that the lessees have made improvements at their own expense does not, show that the lease was intended to be permanent. As regards dealings with the property, it may be conceded that transfers have been made in many instances on the assertion that the Leasehold interest was permanent and heritable. But there is nothing to show that these assertions were made with the knowledge or with the concurrence of the representatives of the grantor. On the other hand, an examination of the documents, whereby the transfers were effected, discloses a significant development in the phraseology used. In the earlier documents, the expressions used are more or less colourless, while in the later instruments, definite expressions indicative of heritability and permanence make their appearance. The influence of the decisions in the cases of Prem Koeri v. Hitoo Koeree and Nam Narain v. Amir Khan, is distinctly visible here and I do not think much weight can be attached to the circumstance that the later documents evidence an assertion of heritability and permanence. On the other hand, we cannot overlook, what cannot by any means be treated as an insignificant, circumstance, namely, that in some instances at least the holders of istemrari mokarari grants had them converted into al-arulad or hereditary grants on payment of fresh premium and enhancement of the rent. In my opinion, the conduct of the parties subsequent to the grant does not indicate with any approach to certainty, that the lease was intended to be perpetual. 73. Finally, there is only one other aspect of the case left for consideration, namely, is it established that at the time of grant of the lease, the expression istemrari mokarari had acquired a customary local meaning in the district of Hazaribagh, in other words, that the expression was used to connote a grant of a permanent and hereditary character? A large body of oral evidence has been adduced in support of an affirmative answer to this question. A large body of oral evidence has been adduced in support of an affirmative answer to this question. That evidence is, in my opinion, valueless for two reasons. In the first place, the evidence does not with precision refer to the period antecedent to or contemporaneous with the grant of the leases. Assume for a moment that the words are shown to have a special local meaning now; we cannot apply the principle presumunter retro. The assertion that the expression has acquired a customary local meaning implies that the ordinary meaning is something different; the vital point, consequently, is when did it acquire a special meaning, assuming that it has a special meaning at the present moment? Unless it is shown that the alleged special meaning was prevalent in 1864, it is of no assistance to the Defendants; and this has not been proved. In the second place, the oral evidence fails to establish that the expression has a customary local meaning. No doubt, as stated by Lord Lindley in Chatenay v. Brazilian Submarine Telegraph Company (1891) 1 Q.B. 79, the meaning of words is a question of fact, though the effect of words is a question of law. But the existence of the alleged customary local meaning is not proved merely by the assertions of witnesses that, in their opinion, the expression has a particular meaning. If the oral evidence is thus inconclusive upon the question of a special customary local meaning, we are left with the evidence of what has been described as gadi sanads granted from 1780 to 1860. These, it is said, were mokarari istemrari bat had been treated as hereditary. The history of these sanads is narrated in the judgment of Woodroffe J. and I agree with his conclusion that the evidence as to their true character is too uncertain to justify the conclusion that the expression istemrari mokarari had in 1864: acquired the customary local meaning attributed to it. 74. The position, consequently, is that the use of the expression istemrari mokarari does not necessarily show that the lease was perpetual and the Defendants have failed to prove that the phrase had acquired a special, local customary meaning in 1864. 74. The position, consequently, is that the use of the expression istemrari mokarari does not necessarily show that the lease was perpetual and the Defendants have failed to prove that the phrase had acquired a special, local customary meaning in 1864. The other terms of the lease, the surrounding circumstances at the time of its execution and the subsequent conduct of the parties also fail to show with sufficient certainty that the intention of the parties was to create a permanent and heritable interest so as to enable the Court to pronounce that the grant was perpetual. We have, on the other hand, the undeniable fact that at the time the leases were granted, the idea was universally held that the holder of an impartible zamindari like the Ramgarh Raj could not encumber the corpus of the estate so as to bind his co-parceners except for justifiable special causes; indeed, it was not till 1888, that the contrary view was authoritatively formulated by the Judicial Committee in Sartaj Kuari v. Deoraj Kuari ILR (1888) All. 272 : L.R. 15 IndAp 51. This is a circumstance which we may legitimately take into account, for in the words of Willes J. in Lloyd v. Guibert (1865) 6 B. and S. 100, 133 : `, the rights of the parties to a contract are to be judged of by that law by which they may justly be presumed to have bound themselves: Abdul Adz Khan v. Appayasami Naicker ILR (1903) Mad. 131 : L.R. 31 IndAp 1. It is thus extremely improbable that the grantor should have in 1865 made a long series of perpetual leases in contravention of what was then the accepted law. From every possible point of view, consequently, the defence proves unsustainable. 75. In four of the connected appeals (5, 11, 14 and 17), special points have been raised in addition to the main ground already considered, namely, that the Defendants have acquired a right of occupancy, that they have been recognised as tenants after the death of the original lessees and that the claim is barred by limitation. There is no substance in any of these objections. The leases were not agricultural leases for purposes of cultivation, but were intended to create tenures; no question of acquisition of occupancy right can consequently arise. The objections as to limitation and recognition are equally fallacious. There is no substance in any of these objections. The leases were not agricultural leases for purposes of cultivation, but were intended to create tenures; no question of acquisition of occupancy right can consequently arise. The objections as to limitation and recognition are equally fallacious. They are based on the assumption that upon the death of one of the two original grantees, the lessor became entitled to re-enter as to one-half of the property demised. This argument overlooks the elementary proposition that the lease would not terminate till the death of the survivor of the two lessees. There is a fundamental distinction between the question of the duration of the lease as a whole and the question of the devolution of the interest thereunder on the death of the first lessee. We are not now concerned with the question, whether upon the death of the first lessee, his heirs or his co-lessee would be entitled to occupy the demised premises. It is sufficient for our present purpose that the landlord was not entitled to re-enter till both the lessees were dead. In this view, no question of limitation or recognition arises. 76. In my opinion, there is no escape from the conclusion that these appeals must be allowed, the decrees of the Subordinate Judge set aside and the suits decreed on the terms indicated in the judgment of the Chief Justice. Richardson J. 77. I am of the same opinion and there is nothing which I can usefully add to the judgments delivered by the Chief Justice and Mr. Justice Mookerjee.