Citation Codes

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Case Number

Privy Council Appeal No. 72 of 1944; Allahabad Appeal No. 21 of 1941

Advocates

Dold
Douglas Grant
T.L. Wilson and Co.
Robert Ritson
C.S. Rewcastle
S.P. Khambatta
Sir Thomas Strangman

Judges

Sir John Beaumont
Lord Goddard
Justice Lord Thankerton

Acts

S. 32, Evidence Act,

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Smart Summary

Structured Summary of the Opinion (Privy Council: Sir John Beaumont)

Factual and Procedural Background

The plaintiffs (respondents in this appeal) sued for possession of two-thirds of a muafi (tax-free) property situated in Mauza Bahra Bikram. They relied on a Government grant dated 8 January 1842 in favour of the heirs of Ahmad Khan; the grant described the tenure as perpetual, held generation after generation, but with each heir holding only for life and the next heir taking on the prior heir's death. The plaint alleged that Ahmad Khan had no issue and that, after his death, Mt. Mohammadi Begum was his heir according to Muhammadan law and entered into possession.

The defendants denied the plaintiffs' title. They alleged that Sayara (Saraya) Begum, widow of Ahmad Khan, was the absolute owner and had made a gift of the property to Mohammadi Begum (said to have been in 1841); that Mohammadi Begum mortgaged the property in 1854 and it was sold by the Court in 1856 and purchased by the defendants' predecessors; and that the defendants and their predecessors had been in possession since that sale.

The Subordinate Judge of Bareilly (decision dated 2 June 1936) found that the plaintiffs had proved their descent from Mohammadi Begum but had not proved that Mohammadi Begum was the heir of Ahmad Khan, and dismissed the suit. The High Court of Allahabad (judgment dated 29 April 1941) agreed with most findings of the Subordinate Judge but concluded that Mohammadi Begum was the heir of Ahmad Khan as to three-fourths of his property; accordingly it decreed the plaintiffs' suit as to three-fourths of the two-thirds claimed. The present appeal to Their Lordships (Privy Council) challenges that modification by the High Court.

Legal Issues Presented

Whether Mohammadi Begum was an heir of Ahmad Khan under Muhammadan law (the dispositive question identified by the courts in India and by Their Lordships).
Whether the plaintiffs had discharged the burden of proof required in an ejectment suit by proving Mohammadi Begum's heirship (including whether possible male collaterals in the male line existed at Ahmad Khan's death).
Whether the defendants were required to plead defects in the plaintiffs' title (i.e., whether a mere denial of title permitted the defendants to rely on such defects when disclosed at trial).
The point (observed by the courts) that limitation in respect of an heir's right would begin to run from the date the heir's title accrued on the death of the previous heir.

Arguments of the Parties

Appellants' (Defendants') Arguments

The defendants' written statements denied the plaintiffs' title and asserted an alternative title: that Sayara Begum was absolute owner and had gifted the property to Mohammadi Begum; that Mohammadi Begum had later mortgaged and lost the property by sale, after which the defendants' predecessors acquired it and remained in possession.
In the Subordinate Court the defendants (through evidence they produced, including a pedigree tendered by their counsel) relied upon defects in the plaintiffs' asserted chain of heirship, specifically the possibility of surviving male collaterals in the male line whose existence would defeat Mohammadi Begum's claim as heir.

Respondents' (Plaintiffs') Arguments

The plaintiffs relied on the grant of 8 January 1842 and their asserted line of descent from Mohammadi Begum to prove their title to two-thirds of the muafi property.
They called verbal witnesses and produced documentary evidence (including an entry in the muafi register, Ex. "A", and a report extract, Ex. 22) to show Mohammadi Begum's possession and to support her status as heir.
The respondents argued that, given the long passage of time, reasonable inferences should be drawn in their favour and that it would be an impossible burden to require them to eliminate the existence of possible remote male collaterals whose existence could not now be proved.
They argued that continued possession by Mohammadi Begum after the death of Sayara Begum (when any donee title would have terminated) supported an inference that she remained in possession as heir and that the absence of claims by collateral male heirs supported the assumption that no such heirs existed.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

Their Lordships proceeded by examining the findings made by the Indian courts and the evidence placed before them, applying legal principles relevant to suits for ejectment and the proof of title under Muhammadan law.

On facts already found by both lower courts: both courts had accepted the nature of the muafi tenure (as claimed by the plaintiffs) and the legal consequence that each heir held only for life and limitation would start to run against an heir from the date his title accrued. Their Lordships accepted these factual findings as unchallenged.
On pleading and burden of proof: the Subordinate Judge had dismissed the suit because plaintiffs failed to prove that Mohammadi Begum was heir of Ahmad Khan, in particular failing to exclude male collaterals in the male line (whose existence would preclude Mohammadi Begum's succession). The High Court held that this defect had not been pleaded by defendants and so the Subordinate Judge had relied on a matter not foreshadowed in pleadings. Their Lordships rejected the High Court's view. They emphasized the legal principle that in an ejectment action the plaintiff must succeed on the strength of his own title; a simple denial of title in the defendant's written statement is sufficient to allow the defendant to avail himself of any defects disclosed in the plaintiff's title without separately pleading every possible defect.
Evaluation of oral evidence: the plaintiffs' verbal evidence was weak. One witness (Said Ahmad Khan) relied on information from his grandfather about events in 1842; their Lordships held that this was admissible under S.32 of the Evidence Act but had little evidential value because the grandfather could not have personal knowledge and the source of his information for matters before his birth or early youth was not disclosed. The other witnesses admitted not knowing whether male collaterals of Said Khan (the father of Ahmad Khan) existed. A written pedigree seen by a witness was not produced. The Subordinate Judge's conclusion that verbal evidence did not prove Mohammadi Begum's heirship was upheld.
Evaluation of documentary evidence: some documents were relevant to tenure and not disputed. Ex. "A" (an extract from the muafi re-transfer register) recorded a deed of gift dated 4 January 1842 by Sayara Begum in favour of Mohammadi Begum, which suggested possession as a donee. But under the tenure created by the Government grant (Ex. 14), donee title would terminate on the death of Sayara Begum in 1845; thus the deed of gift did not establish succession as heir. Ex. 22, a copied extract from an 1882 report, described Mohammadi Begum as "heir" in relation to a jagir and stated she came into possession and sold it; but Their Lordships found Ex. 22 unreliable because the author was not shown, the underlying order was not on record, the report omitted mention of Sayara Begum and the 1842 deed of gift, and there was no evidence that the officer who made the report conducted any formal enquiry or gave notice to possible claimants. Consequently, Their Lordships attached little weight to Ex. 22.
On inferences from lapse of time and possession: the plaintiffs argued that given the long time passed, reasonable inferences should favour them (and that requiring elimination of possible heirs was impossible). Their Lordships rejected such an approach. They observed that delay might equally prejudice defendants, and that the delays were not attributable to defendants or their predecessors. They noted that successive holders in the relevant lineage had not pressed claims during their lifetimes, and plaintiffs themselves delayed filing suit until almost 12 years after their alleged title accrued. Their Lordships held that none of these circumstances justified relieving the plaintiffs of the burden of proving heirship. They also rejected the inference that possession by Mohammadi Begum after Sayara's death automatically meant she held as heir, pointing out that collateral male heirs might have known only of a gift to Mohammadi Begum and might not have been aware of the special terms of the muafi tenure—so absence of their claims did not establish their non-existence.
Conclusion of analysis: after assessing the verbal and documentary evidence and the parties' arguments, Their Lordships agreed with the Subordinate Judge that the plaintiffs had failed to prove that Mohammadi Begum was an heir of Ahmad Khan under Muhammadan law. Accordingly, the High Court's partial decree in favour of plaintiffs could not be sustained.

Holding and Implications

Core Holding: Their Lordships ALLOWED THE APPEAL, set aside the judgment and decree of the High Court of Allahabad dated 29 April 1941, and restored the judgment of the Subordinate Judge of Bareilly dated 2 June 1936 dismissing the plaintiffs' suit with costs.

Consequences and immediate effects:

The plaintiffs' suit for possession was dismissed.
The plaintiffs (respondents in the appeal) were ordered to pay the costs of the appeal to the High Court and to His Majesty in Council (i.e., costs of this appeal to the Privy Council).

No broader legal precedent or novel legal principle was announced beyond the application of established principles on burden of proof in ejectment suits, the admissibility and weight of hearsay under S.32 of the Evidence Act, and the evaluation of documentary evidence and inferences from long delay. The decision's import is therefore primarily the direct resolution of the parties' competing claims on the facts presented.

Disposition: Appeal allowed.

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Jagdish Narain v. Nawab Said Ahmed Khan

Sir John Beaumont. -

This is an appeal from the judgment and decree of the High Court of Allahabad dated 29th April 1941, which modified a decree of the Subordinate Judge of Bareilly dated 2nd June 1936.

The plaintiffs (who are respondents in this appeal) claimed possession of two-third parts of Muafi property situate in Mauza Bahra Bikram. Their case was that on 8th January 1842, the Government made a grant of the lands in suit in favour of the heirs of Ahmad Khan, who had married Sayara Begum the daughter of Nawab Hafiz Rahmat Khan, who had rendered valuable services to the Government which the Government were minded to reward. The plaint alleged that the grant was made enjoyable in perpetuity generation after generation for the maintenance and help of the heirs of Ahmad Khan, and that each heir was to hold for life only and on the death of an heir the next heir of Ahmad Khan was to take as such heir and not as heir of his predecessor. The plaint further alleged that Ahmad Khan hack no male or female issue, and that after his death Mt. Mohammadi Begum was his heir according to Muhammadan law and entered into possession of his estate.

In the written statement of the several defendants the title of the plaintiffs was denied, and it was alleged that Saraya Begum, the widow of Ahmad Khan, was the absolute owner of the property in suit, and that in 1841 she made a gift of the property to Mohammadi Begum; that in 1854 Mohammadi Begum mortgaged the property, and in 1856 it was sold by the Court in a suit instituted by the mortgagee and was purchased by the predecessors in title of the defendants, and that the defendants and their predecessors have been in possession of the property ever since.

Both Courts in India held that the tenure of the land in suit was as claimed by the plaintiffs, and that each heir of Ahmad Khan held the property for life and on his death the next heir took. These findings have not been challenged before their Lordships, and it follows from such findings that limitation would start to run against an heir from the date when his title accrued on the death of the previous heir.

The Subordinate Judge held that the plaintiffs had proved that they were the heirs of Mohammadi Begum, but that they had not proved that Mohammadi Begum was the heir of Ahmad Khan, and accordingly dismissed the suit.

In appeal the High Court agreed with all the findings of the lower Court except with regard to the heirship of Mohammadi Begum. The Court held that Sayara Begum, as widow of Ahmad Khan, was one of his heirs according to Muhammadan law and inherited one-fourth of his property, and that it was not proved that Mohammadi Begum was the heir of Sayara Begum; but the Court held it proved that Mohammadi Begum was the heir of Ahmad Khan as to the remaining three-fourths of his property and accordingly they decreed the plaintiffs' suit as to three-fourths of the two-thirds of the property claimed.

The Subordinate Judge had held that the case of the plaintiffs failed because they had not proved that there were no male collaterals in the male line of descent or ascent of Ahmad Khan, or of his father, alive at the death of Ahmad Khan and that, as such male collaterals would succeed as heirs according to Muhammadan law in preference to Mohammadi Begum, the plaintiffs had failed to discharge the burden which rested upon them of proving their title. The High Court held that this defect in the title of the plaintiffs had not been pleaded by the defendants, and expressed the view that the Subordinate Judge had made out a case for the defendants which was not foreshadowed in the written statements and was not set up at the trial. Their Lordships are quite unable to agree with the High Court in this view. The plaintiffs were suing in ejectment, and they could only succeed on the strength of their own title. There was no obligation upon the defendants to plead possible defects in the plaintiffs' title which might manifest themselves when the title was disclosed. It was sufficient that in the written statements the defendants denied the plaintiffs' title, and under this plea they could avail themselves of any defect which such title disclosed.

The following pedigree which was handed in by counsel for the defendants and admitted by counsel for the plaintiffs, and which is substantially the pedigree proved at the trial, shows the position of the family of Ahmad Khan :

PEDIGREE PUT FORWARD BY PLAINTIFFS Malik Said Khan Nawab Hafiz Rahmat Khan Malik Mohammad Khan Malik Ahmad Khan = Mt. Saira Nawab MohammadD. about 1842. Begum D. 1845. Umar Khan (In fact died before 4th January 1842). Ahya Khan Ghulam Husain Ghulam Malik Mohammad Ali (Unmarried) Khan (Unmarried) Mohammad Khan predeceased Khan Malik Ahmad Khan Mt. Mohammadi = NawabBegum D. 1882. Mohammad Khan Fazal-un-Nissa = Nawab Ali Mohammad Khan D. 1894. Mt. Munawwar-un-Nissa Nawab Ali Ahmed = Mt. Mohabbat-un- Begum, alive Khan, D. 6-1-23. Nissa Begum Mt. Shaukat Jahan Nawab Nabi Ahmad Nawab Wali Ahmed Khan, Plaintiff 1Begum, Plaintiff 3 Khan, Plaintiff 2 (D. 21-5-37, now represented by Respondent 6. Respondent 5. respondents 1-4). Said Ahmad Khan, Respondent 1.

It will be observed that Ahmad Khan died about 1842, and his widow died in 1845. Mohammadi Begum was the daughter of one of the four sons of the only brother of Ahmad Khan, so that she was a great-niece of Ahmad Khan. It is in evidence that she was also the informally adopted daughter of Ahmad Khan and his wife. It will further be observed that Mohammadi Begum died in 1882 and that her only son died in 1894 leaving a son and daughter. The daughter, who inherited one-third of her father's property, is not a party to these proceedings. The son, who inherited two thirds of the property, died in 1928 and the original plaintiffs were his children; they filed their suit in 1934, 11 years and 11 months after the death of their father and so just within the period of limitation. The findings of the lower Courts that the plaintiffs were the heirs of Mohammadi Begum as to two-thirds of her property has not been challenged before their Lordships, and the only question which arises for decision is that upon which the Courts in India differed, namely, whether Mohammadi Begum was the heir of Ahmad Khan.

The plaintiffs called two witnesses who gave verbal evidence upon the question. Witness 1 was Said Ahmad Khan (respondent 1 who was the son of the original plaintiff 1). He stated that his information about the earlier history of the family was derived from his paternal grandfather who, as stated, had died in 1923. The grandfather can have had no personal knowledge of matters which occurred in 1842 and, as the source of his information as to matters which occurred before his birth or in early youth were not disclosed, his statement, which is admissible under S. 32, Evidence Act, has little evidential value. Said Ahmad Khan alleged that the father of Mohammadi Begum died during the lifetime of Ahmad Khan and the learned Subordinate Judge found that in that event Mohammadi Begum could inherit as heir of Ahmad Khan only if there were no male collaterals in the male line of descent or ascent of Ahmad Khan, or his father Said Khan, alive at the time of Ahmad Khan's death. This finding has not been challenged. The witness further stated that he did not know whether the father of Ahmad Khan had any, and if so how many, brothers. Witness 2 called by the plaintiffs was Basityar Khan who also stated that he did not know if Said Khan had any brother. This witness stated that he had seen a written pedigree of the family which was not produced, and this omission detracts from any value which might otherwise attach to his evidence. Their Lordships agree with the view of the learned Subordinate Judge that the verbal evidence produced by the plaintiff does not prove that Mohammadi Begum was an heiress of Ahmad Khan under Muhammadan law.

In addition to verbal evidence the plaintiffs also relied on certain documentary evidence, and the High Court attached great importance to one document which will be referred to later. Most of the documents produced were relevant on the question of tenure which is not now in question, and these documents need not be noticed. It may, however, be observed that Ex. "A," which is an extract from the Register re-transfer of Muafi lands, contains an entry of a deed of gift made on 4th January 1842, by Mt. Sayara Begum, wife of Ahmad Khan, in favour of Mohammadi Begum described as a daughter of the donor of Muafi land in Mauza Bahra. This suggests that the original possession of Mohammadi Begum was under the deed of gift, though from the terms of the tenure as defined by Government on 8th January 1842 (Ex. 14), it follows that Mohammadi Begum's title as donee would terminate on the death of Sayara in 1845. The document on which the High Court strongly relied in proof of the heirship of Mohammadi Begum is Ex. 22. This purports, to be a copy of an extract from a report regarding Muafi lands under an order dated 9th January 1882, taken from the record of Case No. 53/11, relating to enquiry and management of the muafi of Hafiz Rahmat Khan, disposed of on 29th September 1882. It relates to the jagir of Pilibhit and states:

"This Jagir belongs to Ahmad Khan. Mohammadi Begum, heir, came in possession. She sold it to the Nawab Saheb Bahadur of Rampur. The vendee is in possession by virtue of the purchase and Mohammadi Begum is a resident of mohalla Qela in Bareilly."

The author of the report is not shown, and the order of 9th January 1882, under which it purports to have been made, is not on the record. There is, however, a copy order, Ex. 21, in case No. 68 directing the record-keeper with reference to the muafi register to make a note against every tract of land, showing whether the tract was then held as muafi or not, and directing that if it was held as muafi it should be ascertained whether the lawful heirs of the persons in whose name it was released were alive or not. On the assumption that the order of 9th January 1882, was in similar terms the important point to which the enquiry was to be directed was whether the heir was alive. No doubt, in case of disputed heirship this would involve an enquiry as to who was the heir, but any such enquiry would involve giving notice to possible claimants so that their case might be adjudicated upon. There is nothing to show that any such notice was given or that any enquiry as to who was the heir of Ahmad Khan was conducted by the officer who made the report. It may well be that, finding that Mohammadi Begum was a member of the family of Ahmad Khan and had been in possession for 40 years, the officer assumed her title as heir. The omission from the report of any reference to Sayara Begum who was certainly one of the heirs of Ahmad Khan, or to the deed of gift in favour of Mohammadi Begum, supports the view that no real enquiry was made as to Mohammadi Begum's title as heir. The report does not deal with the property in suit, though the property with which it does deal was probably held on a similar tenure. Their Lordships are unable to attach to the reference in this report to Mohammadi Begum as heir the importance which the High Court attached to it.

It was argued for the respondents that at this distance of time reasonable inferences should be drawn in favour of the plaintiffs and that to require them to eliminate from their pedigree possible heirs whose very existence is not proved is to impose an impossible burden upon them. But it must be remembered that though lapse of time may have prejudiced the chances of the plaintiffs in proving their case, it may well also have prejudiced the defendants in resisting the claim, and the lapse of time is certainly not due to any default on the part of the defendants or their predecessors. The respondents are not so free from criticism. The son of Mohammadi Begum made no effort to support his claim during the 12 years in which he survived her, and his son did nothing during the 29 years in which he survived his father, and the plaintiffs themselves did nothing until the expiration of nearly 12 years from the date when their alleged title accrued. Their Lordships see nothing in the circumstances of the case which would justify drawing any inference which might relieve the respondents of any part of the burden of proving their title. It was argued further that since Mohammadi Begum was left in possession after the death of Sayara Begum when her title as donee terminated, she must be assumed to have remained in possession as heir, and that the fact that no claim was made by any collateral male heir should lead to an inference that no such collateral male heir existed. Their Lordships are unable to accept this argument. It is quite possible that a collateral male heir, not being a member of the immediate family of Ahmad Khan, may have known of the deed of gift in favour of Mohammadi Begum, and may not have known of the terms upon which the muafi lands of Ahmad Khan were held under Government grant.

In their Lordships' view the finding of the learned Subordinate Judge that the plaintiffs had failed to prove that Mohammadi Begum was an heir of Ahmad Khan was right. Their Lordships will, therefore, humbly advise His Majesty that this appeal, be allowed, that the judgment and decree of the High Court be set aside and the judgment of the Subordinate Court dismissing the plaintiffs' suit with costs be restored. The plaintiffs must pay the costs of the appeal to the High Court and to His Majesty in Council.

Appeal allowed.

Jagdish Narain v. Nawab Said Ahmed Khan

Structured Summary of the Opinion (Privy Council: Sir John Beaumont)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' (Defendants') Arguments

Respondents' (Plaintiffs') Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Jagdish Narain v. Nawab Said Ahmed Khan

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