Jogesh Chandra Roy v. Mokbul Ali Chowdhyry

The Judgment of the Court was as follows:—

An estate now vested in the Plaintiff, the Appellant before us, was originally held in two undivided moieties. The owner of one moiety granted a tenure thereof in favour of two persons Fateh Ali Miji and Asauddin Miji, evidenced by a kabuliyat which they executed, dated the 1st Chaitra 1271 (1865). In this document the tenure is referred to as an itmam. The other moiety was also held by the same two persons as a tenure, described as a taluk. It may be conceded to the Plaintiff, as his case is, that the taluk was created orally at the same time as the itmam, though there is really no evidence how the taluk came into existence.

In 1878, after the death of Fateh Ali and Asauddin, the widow and grandson of the former and the widow, and daughter of the latter conveyed the two tenures to Haidar Ali, the predecessor-in-interest of the Defendants.

The suit was brought on the basis that the term and conditions of the itman, as they, appear in the kabuliyat of 1865, are inconsistent with the permanent tenure which the Defendants claim. As to the taluk the Plaintiff's theory; rather a weak one, is that it must be presumed to have been granted on the same terms as the itmam. There, is more force in the argument for the Defendants that the taluk is primâ facie a permanent tenure and that if there is any doubt as to the permanency of the itmam it must be resolved in their favour. The Plaintiff, acting on his view of his rights, treated both tenures as tenancies from year to year and served notice to quit on the Defendants. They refused to quit and the present suit was brought to eject them. The appeal is from the decree of the Subordinate Judge dismissing the suit.

We concur, in the view taken by the learned Subordinate Judge.

As to facts we have already indicated that the tenures descended from Fateh Ali and Asauddin to their heirs. They passed by transfer from the latter to Haidar Ali and have now devolved on Haidar Ali's heirs and representatives. The rent has never been raised since 1805. The fact that rent receipts were granted “marfatdari” in the names of the original grantees is certainly not conclusive in the, present case to shew that the tenures were not transferable. A taluk is primâ facie transferable and we shall hold on the construction of the kabuliyat of 1865 that the itmam is also of a transferable character.

There was some discussion whether the term “itmam,” which is used in the heading of the kabuliyat and thrice in the body of the document, imports permanency. The term, it appears, may be applied to a raiyati holding or to a tenure. In Ameer Ali and Finucanes' Tenancy Act (2nd Edn., p. 807), it is stated that in the permanently settled tracts of Chittagong an “itmam” is “transferable,” heritable and held at a fixed rate of rent in perpetuity. In temporarily settled areas, the rent is liable to enhancement at any rate when a fresh settlement is made [Makbul Ali v. Jogesh Chandra (1)]. Reference may also be made to Mr. Allen's Settlement Report of 1888-1898 for Chittagong (p. 27) to his “Note upon itmamdars and dar-itmamdars in Chittagong” to be found in Vol. V of the selections from the Records of the Board of Revenue L.P (p. 200, esp p. 225) and to the District Gazetteer of Chittagong (p. 149). It may be that such reports and books are not strictly speaking evidence or that they do not come or do not at all come within the scope of sec. 35 of the Evidence Act, but we see no objection to their being read for what they may be worth [cf. Garurudhwaja's case (2)] and Sir Rash Behari did not insist on the objection which he rather suggested than argued. Our conclusion is that as applied to a tenure in the permanently settled parts of Chittagong the word “itmam” primarily imports a permanent heritable and transferable tenure. It is well-settled that the word taluk primarily imports permanency [Sarada v. Akhil and Upendra v. Jogesh ]. No doubt the terms of a written instrument may be inconsistent with the ordinary implication of either term. Either term may be loosely or mistakenly applied to a tenure which is not in fact permanent and which does not become permanent merely because it is called a taluk or an itmam.

We pass to the kabuliyat. It is described as a “bandobasti kabuliyat” or settlement kabuliyat. Nothing turns on that The lease was for an indefinite period, and there are no words of limitation or inheritance. “We shall,” say the grantees, “pay into your sarkar, year after year, the aforesaid jama (or rent) in accordance with the kists (or instalments) mentioned above.” A lease from year to year is really out of the question. That being so, the strict rule seems to be that “if a grant be made to a man for an indefinite period, it enures, generally speaking, for his lifetime and passes no interest to his heirs, unless there are some words showing an intention to grant a hereditary interest. But “that rule of construction does not apply if the term for which the rant is made is fixed or can be definitely ascertained.” [Babu Lekhraj Roy v. Kunhya Sing (5)]. The lease, therefore, enured at least for the lifetime of the grantees. Then there are words which go to indicate that a permanent lease was intended. The provisions of the Putni Regulation are expressly made applicable to the tenure and the tenure is described as an itmam. It was argued that under sec. 8, the Regulation might be made applicable by agreement to a lease, for instance, for a long term of years. That may be so but the preamble (sec. 1) shows that the Legislature were thinking of “leases at a rent fixed in perpetuity.” Moreover the lease in the present case is not a lease for a long term of years. It is absurd to suppose that the parties could ever have thought of applying the Regulation to a lease from year to year. As we have said, the Plaintiff's suggestion of a lease from year to year cannot he entertained.

Much was made of the clause in which the; grantees state that without the grantor's permission they, will not be entitled to transfer the itmam to others. But there is no clause of re-entry. Such a condition against transfer is often inserted merely as a foundation for a claim to nazar (or premium) when a transfer is made, and if it is not void, it does not render an assignment or transfer of the lease inoperative [Nil Madhub v. Nil Ratan and Basarat Ali v. Manirulla ].

Regard being had to the terms of the kabuliyat of 1865 and to the history of the tenures, we are of opinion that they are permanent, heritable and transferable. The true title to tenures is, therefore, in the Defendants and no question of adverse possession arises.

The appeal fails and must be dismissed with costs.

J.N.R

Appeal dismissed with costs.