Bhonu Lal Chowdhury v. W.A. Vincent

Dawson Miller, C.J:— The appellant instituted this suit on the 5th December, 1914, claiming to recover possession from the defendants of an area of 36 bighas 7 cottas 11 dhurs of land in Mauza Etwarpur Jainti in the District of Muzaffarpur. It is admitted that the plaintiff is the proprietor of the Collectorate estate bearing Touzi No. 9507 which originally formed an 8 annas share in the Mauza and that the lands in suit form part of his estate.

2. Mr. W.A Vincent, the principal defendant, claims khas possession of the land as sub-lessee of Mrs. Hudson, the defendant No. 12 who claims to be the occupancy raiyat at an annual jama of Rs. 197-14-0 including road cess. These two defendants alone contest the suit. The suit was originally tried before the Subordinate Judge of Mozaffwpur who by his judgment, dated the 17th February, 1917, found in favour of the defendants and dismissed the suit. The plaintiff preferred an appeal to the High Court which was heard by Mullick and Jwala Prasad, JJ., who by their judgments, dated the 18th August, 1920, took different views, the former being of opinion that the appeal should be dismissed and the latter, that it should be allowed. Consequently, the present appeal is brought before this Bench by the plaintiff under Clause 10 of the Letters Patent.

3. The facts out of which the dispute arises are fully set out in the judgments of the Courts below but the points which have been urged before us on behalf of the respective parties make it necessary to bear in mind certain dates in the chain of transactions under which the parties acquired the respective interests claimed by them.

4. Up to the year 1858 Mauza Etwarpur Jainti formed part of a permanently settled estate held by a number of joint proprietors. In that year Sunder Sahay, one of the proprietors, by a Collectorate partition, obtained an 8 annas share in Etwarpur Jainti, as a separate estate bearing Touzi No. 9507, and there is some evidence to show that, even before that date he was in possession under a private partition.

5. The lands in suit formed part of that estate. Sunder Sahay died in about 1874 and his estate passed into the hands of Matuk Lal and Sheo Prasad. Sometime between 1888 and 1890, Matuk Lal acquired Sheo Prasad's share and became the sole proprietor of the estate. On the 15th July, 1815, Matuk Lal, by an instrument in writing of that date, conveyed his proprietary interest to the plaintiff Bhonu Lal Choudhury and his three brothers. Matuk Lal, however, retained possession until the 29th August, 1896, when the purchase money was paid and possession transferred to the purchasers. On the 23rd June, 1909, by a partition between the plaintiff and his brothers the estate in question was allotted to the plaintiff who is now the sole proprietor.

6. The defendants' claim to the occupancy interest in the disputed holding rests on a series of transactions which began in the year 1854 (1271 F.) when Sunder Sahay was either sole or joint proprietor of the Mauza. In that year Nathu Lal Choudhury who owned an Indigo Factory, now known as the Pirakpur Factory, purchased from five tenants of Sunder Sahay the whole or portions of their respective occupancy holdings measuring altogether 36 bighas 7 cottas 11 dhurs of land which constitutes the subject of this suit.

7. It is not disputed that the land formed part of the occupancy holding of Nathu Lal's vendors or that Nathu Lal took possession, but it is contended that the holding was not transferable and that the purchaser was never recognised by the landlord. It is said that from 1864 to 1876 Nathu Lal remained in possession of this holding ostensibly as an occupancy tenant and growing indigo thereon for his factory, but no rent receipts are forthcoming for that period.

8. After Sunder Sahay's death, Sheo Prasad and Matuk Lal being the proprietors, Nathu Lal on the 30th June 1876 took an ijara lease from Sheo Prasad of his interest in the Mauza for a term of seven years. In 1881 he also took from Matuk Lal an ijara of the latter's interest in the Mauza and thus became the ijardar of the whole estate comprised in Touzi No. 9507. It is conceded that the raiyati interest, if it existed, over the 36 bighas would not become merged in the ijara interest. These leases were renewed from time to time and were still in existence on the 23rd July 1890 when Nathu Lal sold his whole interest in the Factory to Mr. H.W Hudson, the father in law and predecessor in title of the defendant No. 12.

9. The appellant contends that Nathu Lal's raiyati interest, if any, did not pass by that sale and that, in any case, Hudson was never recognised as an occupancy tenant by the landlord. Mr. Hudson who was admittedly the ijardar thereafter remained in possession until the ijara leases expired on the 4th September 1895. It will be remembered that about two months earlier on the 13th July 1895, Matuk Lal, then the sole proprietor, had executed a conveyance of his proprietary interest in favour of the plaintiff and his brothers but possession was not made over to the purchasers until the 9th August of the following year.

10. About eight months later, in April 1897, the new landlords granted a new ticca lease to Mr. Hudson for a period of seven years. It is the appellant's case that on the expiration of the old ijara the right of possession to the whole estate-including the disputed land reverted to the landlord.

11. The defendants contend that the right of possession remained in Mr. Hudson as the occupancy tenant by purchase from Matuk Lal Choudhury, and that he was recognised as occupier by Matuk Lal, the outgoing landlord, and further, that his interest as an occupancy raiyat was also recognised by the appellant who about that time acquired Matuk's proprietary interest.

12. In 1904, the lease of 1897 having expired, a new ticca lease was granted to-Mr. Hudson of Etwarpur Jainti, together with other property not previously in eluded, for a term of nine years which expired in 1913 and was not renewed. In the meantime, Mr. H.W Hudson died and his estate devolved upon his two sons, Harry Hudson and Percy Hudson. In 1909 the former died and Percy Hudson became the sole owner of the Factory and of the occupancy tenancy, if it existed.

13. In the same year Mr. Vincent, the then Manager of the Factory, acquired a 4 annas share of the Factory from Percy Hudson, and in 1912, Percy Hudson having died, he acquired the remaining interest from Percy's widow, the defendant No. 12. The transfer to Mr. Vincent did not include the raiyati interest which, if it existed, had passed to Percy Hudson and afterwards to his widow, but Mrs. Hudson, when she transferred her interest in the Factory to Mr. Vincent, had agreed to grant him also a sub lease of the occupancy holding and on the 13th January 1914 she executed a sub-lease of the holding in favour of Vincent who claims to be an under-raiyat of Mrs. Hudson.

14. It was contended that Mrs. Hudson had relinquished her raiyati interest, if any, by going to England before 1914 but her agent was always on the spot and no question was raised in the pleadings or by the issues upon this point and the matter was not gone into in the evidence. Mullick, J., in the Court below declined, in the circumstances, to go into this matter which was one of mixed law and fact and we consider that he was right in so doing.

15. (His Lordship after discussing the evidence came to the conclusion that Nathu Lal acquired an occupancy holding in 1864 and proceeded as follows):—

The next question is whether Nathu Lal, by the conveyance of the 23rd July 1890, transferred his occupancy right to Mr. Hudson. I confess that this question is one of some difficulty. It depends upon the construction of the document. Mr. Hudson, the transferee, is dead and cannot be called as a witness and there is nothing to show whether at the time when he purchased the Factory he was even aware that his vendor had an occupancy holding in the disputed land.

16. It seems fairly clear, however, from the document that it was the intention of the parties that all the interests of the existing proprietor in the property held by him in connection with the Factory's business should pass. The deed recites that the vendor has contracted for the sale of the Pirakpur Indigo Concern together with all the Taluks, Mauzas villages, lands, hereditaments and premises, of which particulars are set forth in the schedules. The schedule, a very long document, refers to the ticeadari interest in Mauza Etwarpur Jainti but does not specially include the occupancy right in the 36 bighas.

17. The operative part of the deed

purports to grant, transfer, assign, etc., unto the purchaser all and every one of the said Taluks, Mauzas and lands or parts or shares therein of which particulars are contained in the schedule. “and also all other, if any, the hereditaments and property belonging to or forming a part of or held with the said Taluks, Mauzas, and lands ………………and all manner of rights, liberties, easements, privileges, profits, commodities, emoluments, advantages and appurtenances whatsoever to the said Taluks, Mauzas, land, Indigo Concern, and hereditaments belonging or in any wise appertaining.”

18. The construction of these words is not free from difficulty but in my opinion they were intended to pass to the purchaser all rights which the vendor possessed in the mauzas, lands, etc., referred to, whether such rights were expressly set out in the schedule or not. The occupancy right in the disputed land in Mauza Etwarpur Jainti was certainly a right of property held with the ticcadari rights in that Mauza although it did not belong to or form part of the interest of the ticeadar as such.

19. It was also a right belonging in a sense to the Indigo Concern. The Indigo Concern, it is true, was not a legal entity and, therefore, in law was not capable of exercising rights of property but the term Indigo Concern as there used seems to me to have been used as synonymous with the proprietor of the Factory as such and even the recitals refer to an agreement to transfer the Indigo Concern. For these reasons, I am of opinion that the occupancy right of Nathu Lal Choudhury did pass to Mt. Hudson by the conveyance.

20. It is said that where there is ambiguity in the operative part of the deed one should look back to the recitals and be guided by what is therein contained in interpreting the ambiguity. This canon of construction, however, cannot in my opinion, apply in all cases where there is a doubt or difficulty in the construction of a document. If one is satisfied upon the natural construction of the operative part of the deed that certain property passes, notwithstanding that the construction may be difficult I do not think that the recitals have any binding force. The same difficulty, to some extent, arises in construing the recitals.

21. In the present case, although the construction is not free from difficulty, I think it was the intention of the patties that all interests of the vendor in the Factory and in the land referred to should pass, and that the words of conveyance are wide enough to include the disputed land.

22. It next becomes necessary to determine whether Mr. Hudson was recognised as tenant of the occupancy holding by the landlord. It is well established that the receipt of rent by the landlord from the transferee of a holding, not transferable by custom, will validate the transfer. But the gumastha or Patwari of the landlord although authorised to collect rents on his behalf has no authority by taking rent from a transferee to create the relationship of landlord and tenant between his master and the transferee.

23. In such cases the landlord would not generally be bound unless he accepted the rent knowing the source from which it came. The absence of rent-receipts from which any inference can be drawn in the present instance arises from the fact that from the year 1876 upto 1913, except for a short period between September 1895 and April 1897, the occupier had also a ticca patta over the Mauza including the disputed land and no separate rent-receipts for the 36 bighas in question would be necessary.

24. There are, however, two receipts for the ticca rent for the Falgun kist of 1293 F. and for the Aghan kist of 1300 F. dated, respectively, the 20th April 1891, and the 18th December 1892, and marked Exhibits N. 1 and N. These were granted Toy Matuk Lal when he was proprietor and which, if accepted, purport to show that the Factory had kasht lands in the Mauza.

25. I shall refer to these presently. There was also a receipt (Exhibit I) for Rs. 138, dated the 18th Bysack 1303, corresponding to the 16th April 1896, signed by Khub Lal, a nephew of Dwarka Lal, the Patwari which if brought to the notice of the landlord clearly shows that he recognised the Pirakpur Factory then owned by Mr. Hudson as the tenant of a holding in Etwarpur Jainti at a rental of Rs. 197-14-0 which could only be the holding in dispute in this suit. This document is important as it relates to the short period when there was no ticca lease in existence and when the defendants claim that Mr. Hudson was in possession and paying rent as an occupancy tenant. It is necessary to consider with some care the acts of the parties and the nature of the transactions which took place be tween the expiry of the old ijara lease of the 4th September 1895, when Mr. Hudson was in possession, and the 19th April 1897, when a new ticca patta was granted to him by the new proprietors, whose interests are now represented by the appellant. The situation which existed at that time was as follows Matuk Lal had executed a conveyance of his proprietary interest to the plaintiff and his brothers on the 13th July 1895 but the vendor remained in possession as the purchase-money was not paid. Mr. Hudson was at that time the ijardar of the Mauza but his lease was about to expire and did expire on the 4th September of that year.

26. His lease was not renewed until 1897 but, in the meantime, he remained in possession of the Factory and of the disputed land pending the completion of the transfer of the proprietary interest to the new purchasers. The only sum which was paid for rent during that time by anybody was admittedly the sum of Rs. 138- The defendant's case is that Mr. Hudson paid this sum on the 16th April 1896, to Khub Lal who was authorised to collect rents on behalf of Matuk Lal who was still in possession as proprietor.

27. It is further their case that this sum was paid on account of rent due by him as occupancy tenant, and was accepted by Khub Lal as such. There was, during this period, a sort of inter regnum in the proprietorship of the estate and in the ticcadari interest. The instrument conveying the proprietary interest had been executed but possession was withheld pending the payment of the consideration money. The ticcadari lease of Mr. Hudson had come to an end and no new lease had been granted. The position was, therefore, somewhat unusual and the rights of the parties were not clearly denned. Mr. Hudson being no longer ticcadar was no longer entitled to collect rents from the tenants. The only person entitled to receive rents would be the registered proprietor Matuk Lal, and Mr. Hudson as occupier of the 36 bighas which he claimed, would be liable to the proprietor for the rent of that holding. In support of the defendant's contention that Mr. Hudson paid rent on account of his holding, the defendants have produced the rent-receipt above-mentioned on the 18th Bysack 1303 (16th April 1896) signed by Khub Lal. This shows that the total annual rental including road-cess was Rs. 197-14-0 and it shows that Rs. 138 on account of that rental were paid by the Treasurer of the Pirakpur Factory.

28. Its authenticity has been disputed but I see no reason to doubt the genuineness of the receipt. The payment of this sum is proved by the witness Bhutan Misser, a servant of the Factory of 25 years standing. He says that the money was paid to Khub Lal who was Patwari under Matuk Lal and that the receipt was signed by Khub Lal in his presence. He further says that the money was paid on behalf of the Factory by Jogendra Babu, as the receipt shows, and that Jogendra was dismissed by the Factory some 15 years ago, which would be about 1902.

29. He further says that the disputed lands were the kasht lands of the Factory and not the malik lands. That Khub Lal had authority to collect rents on behalf of the malik is proved to my satisfaction beyond all reasonable doubt. His son Baldeo Lal was called and from his evidence as well as that of other witnesses, it appears that Dwarka Lal, his grand uncle and uncle of his father Khub Lal, both of whom were dead, was the Patwari of the malik Matuk Lal and that a few years before Dwarka's death which occurred in 1306 F. (1839 A.D), Khub Lal who was Dwarka's Naib performed the duties of Patwari on behalf of his uncle.

30. I am satisfied on the evidence that this sum was paid to Khub Lal by the Factory as rent of the holding to the person who at that time was authorised to receive rents. The appellant contends that this sum of Rs. 138 was not paid by the Factcry at all but was collected from a number of other tenants and has produced two documents in support of his contention.

31. I shall deal with these presently. It does not follow, however, because Khub Lal received rent from Mr. Hudson, that, I therefore, the landlord recognised him as a tenant. It must be shown that the landlord had knowledge of the transaction and ratified it either expressly or by implication. The only other receipts of any importance are the Exhibits N1 and N above referred to. These were of earlier dates and granted when the Mauza was held under the ticca lease, and are for the ticcadari rent after Hudson became ticcadar. They purport to show that the proprietor of the Factory had some kasht lands in the village. They are dated the 20th April 1891 and the 18th December 1892 respectively. Their authenticity as rent receipts is not impugned but it is said that the important words showing that the Factory had a jote in the village have been interpolated. The scribe of the later in date, Exhibit N, was called by the defendants and said they were signed by Matuk Lal and in cross-examination said the word “mai” before “kasht” was not in his handwriting and he doubted if the word “kasht” was. It is, therefore, clear that Exhibit N cannot be relied upon as showing that Mr. Hudson was recognised as an occupancy tenant. It does show, however, that Khub Lal was a person through whom the landlord was receiving rents.

32. The other document is a receipt also signed by Matuk Lal and there is nothing to show that it is tampered with except a suggestion that the important words “with jote” have been interpolated. No expert evidence was called about it and I am not prepared to hold that it has been tampered with. By itself, it does not amount to much. If it were the only evidence in the case, I should certainly hold that it was not sufficient to prove that Mr. Hudson was recognised as an occupancy tenant of the disputed land.

33. The defendants contend, however, that the events which took place after September, 1895, and which culminated in the grant of a new ticca lease in April, 1897, prove that both Matuk Lal and his transferee recognised Mr. Hudson as the occupancy tenant. During this period, presumably, the Factory's business was going on as usual but the situation was, as already stated, somewhat peculiar. Mr. Hudson could not collect any rents as he was no longer ticctdar, and for the same reason he was not liable for ticcadari rent, and the only sum in fact paid was the Rs. 138 which, I have already held, was, in my opinion, paid by Mr. Hudson as tenant of the holding.

34. But if and when a new ticca lease of the Mauza should be granted the question would arise as to how much should be paid and by whom, to the landlords for the intervening period. Before the old ticca expired, negotiations had been going on between Mr. Richardson on behalf of the Factory and Matuk Lal for a renewal as appears from the former's letter of the? 19th June, 1895. These negotiations appear to have been renewed when the new owners took over from Matuk Lal. I may mention here that this letter is relied on by the appellants as showing that Mr. Richardson at all events did not consider that the Factory had an occupancy interest.

35. Mr. Richardson was the proprietor of the Bikhampore Indigo Factory in the same District. He appears to have had some sort of partnership agreement with Mr. Hudson and used to supervise the management of the Pirakpur Factory which at that time was being managed by Mr. Harry Hudson, the son of the proprietor, then a young man without much-experience. From the letter in question it appears that Matuk Lal wished to exclude from the new lease in addition to some kasht land of one of the tenants, a plot of two bighas of the indigo zerait.

36. Mr. Richardson replied that the land of the tenant named might be excluded but added

“I cannot allow you to deduct from the patta the other two bighas of zorait land.”

37. This, no doubt, refers to a part of the disputed land and it is argued that if Mr. Richardson knew that the Factory had occupancy rights over it, he would have replied that the landlord could not deprive him of it even if it were excluded from the ticca. This is not a necessary inference as Mr. Richardson firmly declined to exclude the land and his reasons for so doing may have been presumed by him to have been within the landlord's knowledge. Mr. Richardson was unfortunately not asked about it. But even Mr. Richardson's ignorance would not disprove the defendants' title.

38. I may mention here that the term indigo zerait or even zerait is common in Factory parlance to denote land in the home cultivation of the Factory as distinguished from land held by other tenants and would include land over which the Factory had occupancy rights. This is proved by several witnesses and is supported by a passage in Amir Ali's Bengal Tenancy Act 2nd Edition, page 5381 which states that in Bihar the term zerait is used to denote all lands in direct cultivation of indigo planters for cultivation of indigo as distinguished from cultivation of indigo by raiyats.

39. The factory may hold the land as proprietor, tenure holder raiyat, or under raiyat and whatever the interest may be, the land is still called zerait. The word used in this sense has no connection with the term zerait as used in the Bengal Tenancy Act and meaning proprietor's private lands. Indeed, the appellant does not contend that the disputed land was landlord's zerait over which occupancy rights could not be acquired but merely bakasht.

40. Nor is it contended that the term zerait when used in the documents in the case signifies landlords' zerait. The negotiations appear to have been renewed later on and the question was then gone into as to the payment of rent to the proprietors for the period when there was no ticca. According to the defendants' evidence a jama wasilbaki was prepared on the 8th April 1897 by Biseswiir Lal, the muharrir of the Factory, in the presence of the tenants and Matuk Lai's agent Haji Gowsan Mian. Biseswar is dead but the document then prepared was proved by Gopal Lal who was present on the occasion.

41. This document shows the amount of rent due to the landlords from the respective tenants including profit from trees and other sources for the two years in question and the sums paid on account for that period. It gives the area of the holdings and the annual jama and includes the Pirakpur Factory as the kashtkar of 36 bighas 7 cottas 11 dhurs at the annual jama of Rs. 197-14-0. The total amount due is shown to be Rs. 1,150 for the two years less Rs. 138 paid by the Factory, none of the other tenants having paid anything.

42. The document is endorsed by Mr. E.H Hudson, who was then the manager, the endorsement showing the balance due to be Rs. 1,012. Mr. Hudson says the document was made preparatory to the new lease being executed. The new lease was executed 11 days later by the new proprietors and shows that Rs. 1,012 was the balance due from the tenants for the two years in question after crediting the Rs. 138.

43. It is the defendants' case that the arrangement made between the parties when the new lease of the 19th April 1897 was granted was, that for the two years corresponding to 1303 and 1304 F. when there was no ticca lease, the ticcadar should pay not at the jama of Rs. 600 per annum payable under the new lease nor at Rs. 500 per annum payable under the old lease but Rs. 1,150 for the two years being the actual amount of rent as stated in Exhibit K, payable by the tenants for those two years including the Rs. 197-14-0 the rent of the disputed holding less the sum of Rs. 138 already paid to Matuk Lal and that the ticcadar should collect the arrears, viz. Rs. 1,012, from the tenants himself with a stipulation that if he should fail to collect the rents from the tenants for the year 1305 F. the land lords should reimburse him.

44. The suggested reason for this arrangement is, that in the absence of a lease the landlord is entitled to collect the actual rent payable by the tenants including that of the disputed holding, but that, as a matter of convenience, Mr. Hudson should advance to the landlords the balance still due for the period and reimburse himself from the tenants.

45. This was obviously a convenient course and would ensure continuity in the mode of payment by the tenants, but as Matuk Lal had been in possession during 1303 F. and might have collected some further rents, there was an express stipulation that the new landlords should be responsible if any of these rents could not be collected.

46. We, therefore, find in the kabuliyat executed on behalf of Mr. Hudson in respect of the lease for 1897 a clause relating to the arrangement mentioned for the rents of the two previous years. The kabuliyat was put in evidence by the appellant himself and admittedly represents the terms of the patta which was not produced. The clause in question reads as follows:—

“There was Rs. 1,150 on account of rent for 1303 and 1304 F. due by the tenants, out of this Rs. 138 had already been received by the former proprietors, and the remaining sum of Rs. 1,012 was found justly payable to the landlords by the tenants and by me the ticcadar which I the ticcadar have paid to them in cash and in one lump on getting receipts, and the landlords have brought it to their possession and appropriation, and I the ticcadar will get the same from the tenants of the village and from my own tahsil, and as regards the arrears due by the tenants, and by me the ticcadar for 1304 F. which I have paid to the landlords, I shall have no objection. If, as regards the arrears of 1303 F. I the ticcadar suffer any loss, then the landlords will be responsible therefor.”

47. This clause clearly indicates to my mind that the landlord—that is, the appellant and his co-sharers knew that the rental payable by tenants for the two years was Rs. 1,150 and that Rs. 138 had been paid to their vendor and that the balance of Rs. 1,012 was payable to the landlords from the tenants including in that category the ticcadar. It further shows that the ticcadar having paid this balance by arrangement to the new landlords, should collect it from the various tenants including himself or as the kabuliyat puts it “from the tenants of the village and from my own tahsil.”

48. These figures correspond exactly with the jama wasilbaki papers made up by Biseswar Lal in the presence of the tenants and the old landlords' agent. The inference is, to my mind, irresistible that the appellant recognised the ticcadar as the tenant of a holding in the village and it is not contended that he had any other holding. It is necessary, therefore, to see how the appellant explains the clause in the kabuliyat. He says that when the old ticca lease expired, he permitted the Factory to remain in possession as ticcadar by an oral agreement, with Mr. Hamilton Hudson, at that time the manager, and that the annual rent was to be Rs. 575 for the years 1303 and 1304 F.

49. This, he says, was done without going into any accounts and presumably was not based upon the actual amount due or which would become due from the tenants and which as appears from the wasilbaki papers was a varying quantity each year. It is significant that the sum so arrived at should be the exact figure which at the end of the period turned out to be the actual rent recoverable.

50. It is also significant that Mr. Hamilton Hudson whose evidence was taken in January 1917 about a month before the appellant himself, was not asked a word in cross-examination as to any such oral agreement although the appellant was present in Court at the time. I confess that this latter consideration should not be given too much weight, as in the present case it is a regrettable fact that the Vakils on either side, either through lack of instruction or for some other reason, failed to elicit from the witnesses both in examination and cross examination evidence on many matters which it was manifestly desirable to elucidate.

51. It is the more regrettable as Mr. H.W Hudson who was then the proprietor of the Factory was dead and unable to give evidence. The appellant further says that Matuk Lal did realise 138 from the tenants for the year 1303 F. and that be paid him a balance of Rs. 382 making Rs. 520 altogether as the rent for that year. He presumably treated Matuk Lal his vendor, as entitled to the income for that year, the consideration-money not having been paid until about the end of 1303 F.

52. This story is quite inconsistent with the clause just cited from the kabuliyat. The Rs. 1,150 is there stated to be the rent due from the tenants and payable to the landlords, whereas, if the Factory was in fact the ticcadar for those years under an agreement oral or otherwise, the ticcadar alone would be responsible to the landlords and would take his chance of collecting the raiyati rents. It would not concern the landlord as long as he was paid the ticca rent whether the ticcadar could recover from the tenants or not.

53. Further, as this risk would be on the ticcadar, it is difficult to suppose that he would have made no attempt to collect any rents from the tenants during the intervening period and again we find that such rents as were paid, viz., Rs. 138 were paid not to the ticcadar but to the landlord Matuk Lal and this is not disputed. This sum the appellant says was collected in small sums from various tenants not including Mr. Hudson and produces a document in support of this, which I shall refer to in a moment.

54. The appellant's story cannot be reconciled with the stipulation as to the landlord's responsibility if the ticcadar should fail to collect the rents for 1303 F. If the oral agreement existed, these rents were the ticcadar's affair and if he failed to collect them he alone would suffer the loss. The appellant in cross-examination contradicted the story he first told as to an oral lease for the two years in question and said that there was no oral tease for the second year.

55. This however, would not explain why he should assume any responsibility for the failure to collect rents for the first year. He further says that neither Dwarka Lal nor Khub Lal were ever Patwaris for his predecessor.

56. The only object that I can see for this manifest untruth is to cast discredit on some of the documents relied on by the respondents. I am quite unable to accept his story and think that the Sub-ordinate judge and Mullick, J., were amply justified in rejecting it. It is admitted that the sum of Rs. 138, was paid to Matuk Lal and that the appellant was so informed by him. I am satisfied that this sum was paid by the Factory on account of rent for the holding.

57. Now having regard to the fact that Matuk Lal was aware of the payment of Rs. 133, as he communicated this fact to the purchasers, can it for a moment be doubted that he at least well knew the source from which it came? Matuk Lal is dead and Mr. Hudson, the proprietor of the Factory in 1897, is dead and direct evidence as to Matuk Lal's information is not before us. But it must be remembered that this rent was accepted by Matuk Lal and credited in account between himself and his purchaser.

58. It was important for him to know at that time exactly which, if any, of his tenants had made any payment. In my opinion the proper inference to draw is that Matuk Lal knew that the Factory had paid this sum as a tenant at a time when they had no ticca lease. In any case, I think the onus would rest upon him and upon his successors to rebut the inference and this they have failed to do.

59. In fact, the document Exhibit K made in the presence of Matuk Lal's agent corroborates the inference that Matuk Lal had knowledge. When the payment of Rs. 138 was made in April 1896 Matuk Lal was still in possession and the ownership in the property had not in my opinion, passed from him. The sale under the deed of the 13th July 1895, to the plaintiffs was to be in consideration of the purchase price and in respect of the consideration money in cash, but the consideration never passed until the following August and I can see no reason why, if Matuk Lal who still remained the owner, recognised the Factory as tenant, this should not bind his transferee if and when the latter should ultimately complete the sale.

60. Unless Matuk Lal deliberately deceived the purchasers, they also must have known the source from which the rent was derived. Moreover, the kabuliyat, in my opinion, establishes the fact that the appellant knew that Mr. Hudson had a holding in the village. A receipt, Exhibit 7, given by Matuk Lal to the appellant for Rs. 382 on the 29th August 1896, when the balance of the purchase money was paid, was relied on by the appellant. It shows the total rent due for the year 1303 F. as Rs. 520 of which. Rs. 138 had already been received.

61. There is nothing to show how the Rs. 520 was arrived at. The document came into existence before the wasilbaki paper (Exhibit K) was made up and the sum of Rs. 520 may have been a rough estimate made by Matuk Lal. Exhibit K shows that the rent for that year, including Rs. 194-14-0 payable for the disputed holding was in round figures Rs. 557. This sum includes the profits of the mango trees, salt and other items which varied from year to year, and it may well be that the Rs. 520 was an estimate based upon insufficient material.

62. It may, on the other hand, be as suggested by the learned Counsel for the appellants, the ticca rent of Rs. 500 with the added sum of Rs. 20 for rental of the holding of Haji Gowsan Mian not included in the ticca. There is nothing in this document which contradicts the respondents' story and it shows at least that Rs. 138 had been collected by Matuk Lal from tenants, etc.

63. The appellant also produced a document, Exhibit 8, which he says he received at the same time from Matuk Lal and which he shows details of collection from 36 tenants amounting to Rs. 126-7-3 for the year 1303, F. which, together with a verbal loan made to Haji Gowsan Mian, the gomasta of Matuk Lal, of Rs. 12-2-3, makes Rs. 138-9-6. It also shows how this sum has been spent in payment of Government revenue and cesses.

64. This is relied upon as indicating that Rs. 138 had been collected from tenants other than the ticcadar. How it came into existence is not explained and the writer was not called; nor were any of the tenants called to say that they had paid the sums attributed to them, although one of them at least was present in Court at the trial.

65. No one takes any responsibility for it and it is not signed by any one. Moreover, the sum stated therein as collected from tenants is not Rs. 138, the admitted amount but Rs. 126-7-3. In the circumstances, I think it would be very dangerous and indeed impossible to rely upon this document as proving anything at all.

66. There are, however, certain other features appearing in the kabuliyat of 1897 which have been urged upon our attention by the learned Counsel for the appellant and which he contends are inconsistent with the conclusion that his client recognised Mr. Hudson as his tenant. The second paragraph of the kabuliyat reads:

“I have obtained ticoa patta of the whole and entire 8 annas of the Collectorate partitioned patti including 36 bighas 7 cottas 11 dhurs of zerait land lying as per boundaries given below in inouza Etwarpur Jainti”

“and towards the end of the document there is a covenant in these words:

“In Assin 1312 F.S I will cut down the indigo crops that may be standing on the zerait lands on payment of 10 annas instalment of rent, and without waiting for any notice I will relinquish possession of the leasehold property and in that circumstance I shall have no right to interfere in the leasehold property nor shall I have any right to occupancy to the zerait lands, etc.”

67. As already stated, the use of the words ‘zerait land’ in the earlier part of the document is quite consistent with the same, having been the Factory's indigo zerait over which they had a right of occupancy, and if this land were excluded from the patta, the raiyati rent for the same, if the ticcadar was occupier, would be payable in addition to the ticca rent. There had been some negotiation as to exclusion of a portion of these lands aid it was therefore, natural to find their inclusion expressly mentioned although perhaps it was not strictly necessary as they would be included unless excluded.

68. It is not contended, however, that the expression zerait means landlords' privates land and the suggestion that the land in suit was ever landlords' zerait within the meaning of the Bengal Tenancy Act was abandoned in, argument before us. It had never in fact been in the landlords cultivation. It might, on the other hand, be argued with much greater plausibility that, as the disputed land was never landlords' zerait, the use of the terms is an admission that the land was indigo zerait in the private cultivation of the Factory as a tenant, there being no suggestion that it was cultivated by any one else. The use of the term is certainly not, in my opinion, any admission by the ticcadar that the land in suit was landlords' zerait.

69. The point made, however, is that the covenant to relinquish possession of the lease-hold property and claim no right of occupancy in the zerait lands at the termination of the tenancy as well as to pay 10 annas instalment of rent for cutting the crops on the zerait land in Assin 1312 F.S, is quite inconsistent with the claim of an occupancy right on such land and negatives the suggestion of recognition. If the covenant could be interpreted as referring only to the 36 bighas mentioned at the beginning of the document and to nothing else, even though such an undertaking would in law not bind the ticcadar to relinquish his occupancy holding, if he had one, it might indicate that Mr. Hudson was not at the time putting for ward any claim to an occupancy holding at all, and that his attitude was inconsistent with that of a person asserting such a claim. It is not, however, necessary to interpret his undertaking as having reference to the zerait land mentioned in the beginning of the document.

70. And, having regard to the context, the undertaking may equally well be satisfied by reference to what immediately precedes it. It is immediately before provided that if the ticcadar should have to sue the tenants for arrears of rent and sell their lands in execution of decrees and purchase them or if he should acquire occupancy rights in any way, then, after the expiry of the ticca he will give up possession without objection, that the ticcadar will not obtain from any tenant kurtaola patta or any deed for any term beyond the terms of this deed, and, if he should do so, it will be deemed invalid and infructuous after the expiry of the term of this patta; that within the mahal he will not purchase the entire occupancy holding or any portion of it and if he does so, it will pass into the possession of the landlords as their zerait land. Then follows the passage quoted above.

71. Now, stipulations of this nature are extremely common in such leases and are meant to protect the landlord from the acquisition by the ticcadar of occupancy rights during the currency of the lease which would bind the landlord on its termination. They merely express what the law implies but they are, nevertheless, in common use. One finds in the ticca patta of 1881 and 1883 granted by Matuk Lal and Sheo Prasad to Nathu Lal Choudhury a stipulation as payment of a proportionate amount of 10 annas instalment of rent for cutting the crops on the khudkasht land after the termination of the lease, at a time when it is clearly proved that Nathu Lal had admittedly an occupancy right in the disputed holding of at least eight bighas.

72. As these leases were renewed, no question could arise as to whether the undertaking covered crops on the ticcadar's occupancy holding. There is no express covenant in those leases for relinquishing the lands at the termination of the lease but although such a covenant is usual it is unnecessary. It is not contended that the covenant to give up possession is legally enforceable in respect of any lands over which the ticcadar had an occupancy right, and, therefore, it seems to me that it was intended to apply and apply only to the land that might be acquired during the currency of the lease in any of the ways mentioned immediately above and which land is referred to as zerait.

73. This applies equally to the covenant to pay the 10 annas instalment of rent. Whether the covenant could be enforced in respect of the disputed land depends entirely upon whether the ticcadar's right of occupancy existed or not, and the covenant itself cannot, in my opinion, legitimately be read as an acknowledgment of the absence of such a right.

74. The appellant further relies upon the presumption in his favour arising from the Record-of-Rights which was finally published in April 1896 and which described the disputed land as bakasht of the ticcadar but not zerait. If we are satisfied that there was an acknowledgment of the occupancy interest by the landlord in 1897, the Record of Rights becomes immaterial. It is relied on, however, to show that, during the preparation of the record and up to 1896, there was apparently no claim by the Factory or Mr. Hudson to have the lands, recorded as the Factory's occupancy holding.

75. The reason for this, I think, is not far to seek. From 1894 up to 1397 there were repeated changes in the management of the Factory. In 1894 Harry Hudson, a young man of 24, without much experience was manager. At the end of 1896 or beginning of 1897 Mr. Hamilton Hudson (E.H Hudson) took over charge. It was the first occasion on which he had independent charge of a Factory and he was quite new to the work.

76. He was followed sixteen months later by Percy Hudson, also a young man without previous experience. The Survey and Record-of-Rights was the first in Bihar and it can hardly be a matter of surprise if these inexperienced Factory managers failed to attach to such proceedings the same importance as one would now, after 25 years experience of the utility and value of Survey Records. It is, therefore, not sunrising to find that the entry in the record was allowed to go unchallenged at the time.

77. One other document was also much relied on by the appellant, viz., the Road Cess Return dated the 27th October, 1902. This document was prepared by Beni Prasad Singh the Am-Mukhtar of Mr. Hudson. It consists of two parts. The first part should contain details of lands in the actual occupation and cultivation of the person submitting the return, whilst the second part should contain details of land held by cultivating raiyat.

78. At first sight, therefore, part I ought to contain details of the disputed land in the actual occupation and cultivation of the ticcadar on whose behalf the Return is made, whereas it seems, at all events, doubtful whether it could properly be entered under part II. The disputed land was in fact entered in part II as well as 2 bighas 9 cottas of another tenant which was apparently under the direct cultivation of the ticcadar.

79. There is a note, however, in small print at the bottom of part I to this effect—

“In the body of the statement should be entered only nij jote land and such uncultivated lands in the use and occupation of the makers of the Return as are capable of assessment on their annual value,”

80. It is contended that by making this Return the ticcadar acknowledged that the land in suit was nij jote land or, at all events, that it is evidence indicating that he considered it as such. According to Section 116 of the Bengal Tenancy Act, proprietor's private lands are known in Bengal as kamat, nij or nij jote and in Bihar as zeraiti, nij sir, or kamat. It is argued from this that the inclusion of the disputed land in part I of the Road Cess Return must be taken as having been made after due deliberation and with full knowledge of the exact phraseology of the sections of the Bengal Tenancy Act.

81. I am quite unable to attach any importance to the entry. The land had to be entered in one or other of the schedules and even if it was placed in the wrong schedule according to the instructions at the bottom of the page, it was a very natural mistake to make. It is a mistake also, if it be such, which applied to the 2 bighas 9 cottas of the other tenants land and it is not suggested that this was landlords' zerait. The document was put in on behalf of the plaintiff and it was not drawn to the attention of any of the defendant's witnesses nor were they ask-ked to explain it. It may well be that just as the word “zerait” in Bihar is an apt term to designate indigo zerait, so the ticcadar, if he thought about it at all, considered that nij jote, which is a synonym for zerait, had the same significance.

82. It is moreover, nobody's case that the land is nij jote in the sense in which it is used in the Bengal Tenancy Act and this document, in my opinion, affords no evidence from, which any inference can be drawn. In the Road Cess Return, dated the 19th November, 1912, also put in by the appellant, under the heading of “area of the zerait and bakasht lands” is entered 36 bighas 7 cottas 11 dhurs zerait which negatives the suggestion that the disputed land was bakasht. That Return was made before the last ticca lease expired and indicates that at that time, at all events, the ticcadar considered the disputed land as such.

83. In the view I take as to the recognition of Mr. Hudson as an occupancy tenant in 1897 it is not strictly necessary to determine whether Nathu Lal's occupancy right was included in the conveyance of the 23rd July, 1890 although I have already expressed my opinion upon this point. It is clear that Nathu Lal after 1890 made no attempt to exercise any rights of occupancy over the land or to dispute his transferee's claim thereto.

84. It is equally clear that in 1897 the Factory was in possession and asserting a right of occupancy and if my conclusion is accurate that the occupancy right in the Factory was then recognised, it is immaterial whether it passed by the conveyance from Nathu Lal.

85. In my opinion the appeal should be dismissed with costs.

86. Das, J.:— I regret that I am unable to agree with my Lord the Chief Justice. The important events connected with this litigation have all been stated by my Lord, and I do not propose to recapitulate them.

87. On the arguments that have been advanced before us, three important questions arise for consideration; 1st did Nathu Lal purchase 34 bighas 7 cottas 11 dhurs of occupancy holding and was his purchase recognised by Sunder Sahay the then landlord? Secondly, did Nathu Lal convey these lands to Mr. Hudson by the Indenture dated the 23rd July 1890; and thirdly, was Mr. Hudson recognised as an occupancy tenant in respect of these lands by the plaintiff, who had purchased the interest of Matuk Lal, the successor-in-title of Sunder Sahay? [The judgment then discusses the evidence concerning the tenancy in favour of Nathu Lal and continues as follows:—] I now come to the letter, Exhibit E, which is strongly relied upon by the defendants. It is in my opinion, always dangerous to come to any conclusion on the question of forgery on a mere comparison of the writing in a disputed document with the writings in admitted documents.

88. The plaintiff relies upon the admitted signature of Sunder Sahay in Exhibits 4, 14 and 14-A and contends that a mere comparison of the signature of Sunder Sahay in Exhibit E with his admitted signatures in Exhibit 4, 14 and 14-A will demonstrate that his signature in Exhibit E has been forged. That the style of the signature in Exhibit E is different from the style in Exhibits 4,14 and 14-A can admit of no doubt whatever.

89. The learned Subordinate Judge concedes that the signature in Exhibit E is much larger than the signatures in the admitted documents but he thinks that there is no essential difference. Mr. Justice Jwala Prasad, with his knowledge of the Persian script, has recorded an unhesitating finding to the effect that

“the signature in Exhibit E is widely different from his admitted signature in the other documents.”

90. I attach very great importance to the view which has been expressed in the Court by Mr. Justice Jwala Prasad, but I prefer to rest my decision on the unimpeachable evidence furnished by the letter itself.

91. The letter runs as follows:—

“I have on your application recognized you as cultivator of 36 bighas 7 cottas 11 dhurs of occupancy holding having annual jama of Rs. 197-14-0 including rent and the road cess to be levied by the Government in future lying in Mauza Etwarpur Jainti constituting my proprietary interest, that you have purchased from the tenants of the village. Yours sincerely, Sundar Sahay, bahalam khud (by my own pen).

92. Mr. Hasan Imam has argued that the inclusion of road cess to be levied by the Government in future in the jama of Rs. 197-14-0 is highly suspicious because admittedly the first of the Road Cess Acts was not introduced till the 3rd June 1871. That may be so, but it may well be that legislation as to the imposition of a road-cess was in the contemplation of the Government for many years prior to the actual introduction of the Bill in the Council and I would not be prepared to hold that the letter has been forged merely on the ground that there is a reference in it to the road cess to be levied by the Government in future.

93. But it is impossible to rely upon the letter in so far as it asserts, first, that the Mauza was his proprietary interest, and, secondly, he had recognised Nathu Lal as his occupancy tenant in respect of 36 bighas 7 cottas 11 dhurs of land purchased by Nathu Lal from the tenants. I have shown from the batwara khasva that the Mauza did not constitute the proprietary interest of Sunder Sahay in 1864 and I have also shown that Nathu Lal had only 8 bighas 6 cottas 9½ dhurs of occupancy holding in 1868.

94. There is an other point in connection with this letter which is worthy of our consideration, the use of the expression “bahalam khud” to convey the idea that the signature in the letter was made by his own pen. Now, there are two expressions which may be used to convey the same idea; “bahalam khud,” and bakalam khas. In the documents which bear the admitted signatures of Sunder Sahay the expression used is bakalam khas. This is the only document in which the other expression is used.

95. The view of the learned Subordinate Judge is that “bakalam khas” which is an idiomatic expression may have been written at the suggestion of better scholars than himself and “bakalam khud” of his own motion. I am wholly unconvinced by the argument which has been employed by the learned Subordinate Judge. One of the most useful tests in considering a case of forgery is to see whether a clear dissimilarity of habit can be traced through the documents tendered. If there exists such a dissimilarity, then it is difficult to say that the same person wrote them all. The judicial mind has constantly taken advantage of the characteristic peculiarities of individuals when a question has been raised whether their writings have been forged, such peculiarities being most commonly manifested in the formation of an idea or in the mode of spelling particular words.

96. The test is a useful one and there is no reason why we should not apply it here. Having anxiously considered the internal evidence furnished by the letter itself in the light of admitted facts and circumstances as to which there can be no dispute whatever, and giving due weight to the opinion of Mr. justice Jwala Prasad, I have come to the conclusion that Exhibit E is not genuine and ought not to be relied upon. Exhibit D stands on no better footing. It purports to be a list of documents kept by Nathu Lal and is dated the 14th January 1869.

97. If, as I hold, Exhibit E is not a genuine document, I cannot rely upon Exhibit D at all. The important questions which arise in connection both with Exhibit D and E are these, first, whether Sunder Sahay was the sole proprietor of an estate in 1864; And, secondly, whether in 1864 Nathu Lal did have 36 bighas 7 cottas 11 dhurs as his occupancy holding?

98. The admitted Collectorate partition in 1868 and the batwara khasra, Exhibit 22, clearly establishes that Sunder Sahay was not the sole proprietor of the estate in 1864 and that in 1864 Nathu Lal could not have had 36 bighas 7 cottas 11 dhurs of occupancy holdings. The batwara khasra not being open to any suspicion whatever, it must follow that any document which contradicts the batwara khasra cannot stand. I hold that Nathu Lal did not have 36 bighas 7 cottas 11 dhurs of occupancy holding.

99. The next question is, assuming Nathu Lal acquired occupancy rights in these lands, did he convey these rights to Hudson by the indenture, dated the 23rd July 1890. The operative words here are,

‘all and every one of the said Talooks Mauzas and lands or parts or shares therein of which the particulars are contained in the said schedule hereto and also all others, if any, the hereditaments and property belonging to or forming part of or held with the said Talooks, Mauzas and lands…………and all manner of rights, liberties, easements, privileges, profits and commodities, emoluments, advantages and appurtenances whatsoever to the said Talooks, Mauza land, Indigo Concern and hereditaments belonging to or in anywise appertaining or therewith usually held, used, occupied, possessed or enjoyed………”

100. It is conceded that the particulars of the disputed lands are not to be found in the schedule of the “Talooks Mauzas and lands” annexed to the deed of convey, ance; but it is argued first, that they fall within the description,

“and also all other, it any the hereditaments and property belonging to or forming part of or held with the said Talooks Mauzas and lands”

and secondly, that they are covered by the conveyance of

“all manner of rights, liberties, easements, privileges, profits, commodities, emoluments, advantages and appurtenances whatsoever to the said Talooks, Mauzas, land, Indigo Concern and hereditaments belonging to or in anywise appertaining or therewith usually held used, occupied possessed or enjoyed.”

101. The latter argument is a short one and may be disposed of at once. I think it is well understood that the words upon which reliance is placed were intended to pass and in fact did pass only those rights which are known as incorporeal hereditaments, that is to say, such rights as are not accompanied by actual possession.

102. But it was argued that a right of occupancy such as is claimed in the disputed lands is an incorporeal hereditament and must be deemed to have passed by the words employed. From one point of view Mr. Manuk is correct for a right in the land is, in strictness, like any other right, incorporeal. The truth is that there always has been some confusion between the right of property and subject of property, a confusion which it was necessary for the conveyancers to avoid.

103. It is, therefore, more relevant to enquire whether in conveyancing there is any distinction between corporeal and incorporeal hereditaments than whether logically there ought to be any distinction between them. Now, the old modes of conveyancing under which an estate accompanied by possession passed by livery while future estates and other rights in land passed by grant, gave a practical rule for distinguishing between corporeal and incorporeal hereditaments. The old conveyancing test is now obsolete; but the distinction is still maintained, and such rights as are not accompanied by exclusive possession are classed amongst incorporeal hereditaments whereas those rights which entitle the owner to the present possession of the land or to receipt of rent and profit are classed as corporeal hereditaments.

104. It is quite true that a right of occupancy, looked at from the point of view of right of property and not subject of property, is incorporeal in its nature but the actual possession of the land to which a person having right of occupancy is entitled, attracts it to the class of corporeal hereditaments. I am of opinion that the disputed lands are not covered by the words upon which reliance has been placed by Mr. Manuk.

105. I have now to consider whether the disputed lands are covered by the words,

“and also all other lands if any the hereditaments and property belonging to or forming part of or held with the said talooks, mauzas and lands.”

106. Now it will be noticed that the recital is far more specific and certain, in that it confines the operation of the deed to

“the talooks, mauzas, villages, lands, hereditaments and premises of which the particulars are set forth in the schedule.”

107. Prima facie, the operative part not only covers the talooks, mauzas and lands or parts or shares therein of which the particulars are contained in the schedule but extends the operation of the deed to

“also all other lands, if any, the hereditaments and property belonging to or forming part of or held with the said talooks, mauzas and lands.”

108. The critical question is whether the operative part is so clear that it must prevail over the recital. It is quite true that the recitals in a conveyance are subordinate to the operative part and that, consequently, where the operative part is clear, it is treated as expressing the intention of the parties, and it prevails over any suggestion of a contrary intention afforded by the recitals; but it is well established that where the operative part is doubtful and it is impossible to say, on a mere reading of it, to which properties it refers, then the recitals can and ought to be used to explain its meaning, and that while, for the purpose of construing the operative part, the whole of the instrument may be referred to, yet the recitals leading upto it are more likely to furnish the key to its true construction than the subsidiary clauses of the deed.

109. For instance parcels of a deed described with certainty are not cut down by recitals showing that something less was intended to pass; but the recitals assist the construction of the operative part where there is an ambiguity in the operative part as to the property affected.

110. The case of Walsh v. Trevanion(1) may be usefully considered in this connection. The deed, which was a marriage settlement, recited a mortgage to the Bank of England of certain of the lands belonging to the Trevanions and then it recited the intended marriage of Trevanion with Miss Trelawney, and it recited further that, “upon the treaty of the said intended marriage,” it was

“agreed that such of the hereditaments ……as are comprised in the said recited indentures of mortgage should be settled; to certain uses, etc.”

“The deed then went on:

“Now, therefore, for carrying into execution the said agreement……they, the said………Trevanions”

direct, limit and appoint that

“the messuages or tenements, lands and other hereditaments, hereinafter granted, released and confirmed, or expressed as intended so to be,”

“shall be and remain (but subject and charged as herein before mentioned) to the uses, etc.”

111. It was agreed that, so far as the recitals went, only those properties belonging to the Trevanions (father and son) which were subject to the mortgage in favour of the Bank of England were intended to be conveyed; but then the operative words were these:

“All and singular the messuages, lands, tenements and other hereditaments of them the said……Trevanion and…… situate, lying and being within the manor of Carhais, and also within the several parishes of St. Michael. Carhais, Ouby, Goran Probus Veryan, St. Teath and St. Denis, in the said Country of Cornwall, and which are intended to be specified and described in the schedule hereunder written, but which schedule is not intended to abridge or affect the generality of the description herein before expressed and contained.”

112. The schedule annexed to the deed specified and contained such of the messuages, lands and heredity aments lying in the manor of Carhais and the several parishes mentioned in the deed as were specified and contained in the schedule to the mortgage in favour of the Bank of England. The plaintiffs relied upon the recitals and the schedule and contended that such messuages, lands and hereditaments only as were mortgaged to the Bank of England, and no others, passed by the deed.

113. The defendants, on the other hand, relied upon the operative part and especially upon the statement that the schedule was not intended to abridge or affect the generality of the expression used in the operative part, and contended that all the messuages, lands and tenements situate lying and being within the manor of Carhais and several parishes mentioned passed, and not only such of them as were mortgaged to the Bank of England.

114. Stopping here for a moment, I may ask myself the question whether the words employed in the deed upon which reliance is placed by Mr. Manuk have any larger operation than the words upon which the defendants relied in the case cited. In the case before us, certain properties are conveyed by a schedule, and there is no conflict whatever between the recitals and the schedule but then the deed conveys

“also all other lands if any, the hereditaments and property belonging to or forming part of or held with.”

115. the properties described in the schedule.

116. In the case cited, the conveyance was also by a schedule which also agreed with the recitals; but then the deed provided that the schedule was not intended to abridge or affect the generality of the expressions used in the operative part. In my opinion, no distinction on principle can be drawn between the words on which the defendants in the case cited relied and the words upon which Mr. Manuk relies.

117. Patteson, J., delivering the judgment in the case thought that the rule of construction was this that, when the words in the operative part of a deed were clear and unambiguous, they could not be controlled by the recitals or by the other parts of the deed; but that when these words were of a doubtful meaning the recitals and other parts of the deed may be used as a test to discover the intention of the parties, and to fix the true meaning of those words. Taking, then, the words upon which the defendants relied, namely,

“but which schedule is not intended to abridge or affect the generality of the expression herein before expressed and contained”

118. the learned Judge said as follows:

“These words are not clear and unambiguous, they may either include all the lands of the parties situate in the manor and parishes mentioned, whether these lands be specified and described in the schedule or not, or they may include only such lands in the same manor and parishes as are virtually and in substance specified and described in the schedule, though they may be imperfectly and inaccurately so specified and described. The latter meaning is the more sensible and probable one to be collected from the words used, independently of any supposed intention of the parties, or any other parts of the deed. At any rate, the former meaning is not clear and unambiguous.

“We must, therefore, look to the recitals and other parts of the deed; and when we do so, it is utterly impossible to doubt but that the parties intended to confine the operation of the deed to the lands which were in mortgage to the Bank of England.”

119. Are the words on which Mr. Manuk relies any more clear and unambiguous than the words upon which the defendants relied in the case cited? They may include, on one interpretation, every bit of land lying within the ambit of the Talooks, Mauzas and lands conveyed; but then the conveyance would include much that did not belong to the grantor, for instance, the occupancy holdings of tenants other than the grantor; or they may include only such lands in the properties conveyed as are virtually and in substance specified and described in the schedule though they may be imperfectly so specified and described.

120. For instance, such tenancy lands as were purchased by the grantor during the subsistence of the ticca and which became an accretion to the ticca would pass under these words—though they may not have been specified in the schedule, if the ticca itself was so specified. I am of opinion that the latter interpretation is correct, and that the words relied on were added for greater safety, in order to guard against any possible misapprehension as to the true position. But, if the latter interpretation is not correct, there is at least some ambiguity in the words employed. We are then entitled to look to the recital and other parts of the deed and when we do so, it is impossible to doubt but that the parties intended to confine the operation of the deed to the properties specified in the schedule.

121. Apart from any other consideration, I do not see how the occupancy holdings of a tenant can be said to belong to or form part of or be held with a ticcadari village. It is only on the hypothesis that occupancy holdings purchased by a ticcadar prior to the commencement of the ticca do not belong to or form part of the ticca village that the ticcadar is entitled to retain the occupancy holdings on the expiry of the ticca. If they do belong to or form part of or are held with the ticcadari village, then there is no escape from the conclusion that they should be made over to the landlord on the expiry of the ticca lease.

122. But in truth an occupancy holding forms a property by itself and is capable of being held and is in fact held distinct and apart from the estate, within the ambit of which it may happen to lie. Even a cursory examination of the Bengal Tenancy Act will establish this point. An occupancy holding is heritable, it is transferable with the consent of the landlord. The raiyat is entitled to cut down trees, provided there is no local custom to the contrary. Section 65 protects the tenant from ejectment for non-payment of rent, but allows the landlord to bring the holding to sale with the result that the surplus sale proceeds are available to the tenant. This is a clear recognition of property in the raiyat distinct and apart from the parent estate.

123. Section 76 and Section 77 entitle the raiyat to effect substantial improvements including the erection of a suitable dwelling house for himself and his family. Section 85 authorizes sub-letting subject to certain restrictions. Section 160 treats a right of occupancy as a protected interest not liable to be annulled by a purchaser of the superior tenure at a sale in execution of a decree for arrears of rent. The last mentioned section is itself a conclusive answer to the contention of Mr. Manuk; for, if an occupancy holding belonged to or formed part of or was held with a superior tenure, it is difficult to understand how it could exist as a separate property after the purchase of his superior tenure at a sale in execution of a decree for arrears of rent.

124. I am of opinion that the words relied upon by Mr. Manuk did not pass the occupancy holdings in question and that Mr. Hudson did not acquire the disputed lands by the conveyance of the 23rd July, 1890.

125. The last question is—Was Mr. Hudson recognized by the plaintiff as an occupancy tenant. Now, before dealing with the evidence on the point, it is well to examine the principles upon which the doctrine of recognition rests. When all the cases are analyzed it will be found that the doctrine is merely the application of the rules of acquiescence or waiver, preventing a party who has acquiesced in a state of things from turning round and alleging a different state of things.

126. It is not an artificial rule entitling a person to the status of an occupancy tenant on mere proof that money paid by him has found its way to the landlord's pocket; but, as the rule is founded on reason and good sense, it must be shown as a condition precedent for the applicability of the rule, that the landlord accepted the money as the rent of the holding and; the person paying it as the occupier of the holding and as paying on his own ac count. [See the decision of the Judicial Committee in Naba Kumari Debi v. Behari Lal Sen(2).]

127. It is well established that parties cannot be said to acquiesce in the claims of others unless they are fully cognizant of their right to dispute them, and that, where acquiescence is relied on, it must be shown that the person acquiescing was aware of the matter in which he acquiesced, and of the effect of such acquiescence. Recognition, like waiver, must be an intentional act with knowledge.

128. In the case of Mritunjoy v. Gopal Chunder(3) the facts were these: the holding stood in the name of Joheeruddin and the landlord brought a rent suit against Joheeruddin and caused the holding to be sold in execution of the decree which he obtained for arrears of rent. The plaintiff thereupon brought a suit for recovery of the holding on the allegation that he and Kalee Kumar had purchased the holding before the rent suit in which the holding was sold and had been recognized by the landlords as tenants.

129. He proved several deposits of rent into the Collector's office in the joint names of Joheeruddin, Kalee Kumar and himself and he alleged that the landlord had with-drawn those rents from the Collector's office. On these facts, the Calcutta High Court had to consider the question whether there was a sufficient recognition of the tenancy of the plaintiff, and it had no difficulty in answering the question in the negative.

130. The following passage from the judgment of Loch, J., may be usefully cited:—

“On referring, however, to the mode in which these deposits are entered, we find that they have been made in the joint names of Joheeruddin, Mriunjay (the plaintiff) and Kalee Kumar, but there is nothing to show what was the particular interest belonging to the plaintiff in the tenure nor is it shown to us that any notice in which the plaintiff claimed to be the purchaser of the tenure was served on the defendant; so that even if defendant had, as alleged, taken all the money in deposit, it is impossible to say that he took it knowing that plaintiff had any interest in the tenure, or that he was thereby admitting plaintiff's title as a tenant. We think that when a party wishes to make known to the Zemindar that he has a right to a tenure, the rent of which the Zemindar refuses to take from him he should distinctly state what is the interest he claims and the notice to the Zemindar should comprise this information.

“It is not sufficient for a man wishing to protect his special interests of which the Zemindar may have no knowledge, to put money into the Collector's office in the name of the recorded tenant along with his own, without stating what his claim is; for unless he does so, the Zemindar is not obliged to enquire as to his status. The payments as made by plaintiff might have been voluntary payments or payments such as that of a mortgagee to save his own interest which a Zemindar is not bound to recognize,”

131. The case of Robert Wilson v. Radha Dulari Kuer(4) is to the same effect. There a non-transferable holding was advertised for sale in execution of a decree for arrears of rent and the judgment-debtor put in the money due under the decree stating that he had procured the money by selling his holding to the person who was subsequently cited as defendant No. 1 in the action by the landlord. The landlord took out the money out of Court and subsequently sued to eject the transferee. It was held that it could not be inferred from the above circumstance that the landlord had given his consent to the transfer, inasmuch as the plaintiff had a right to draw the money out of Court without regard to the manner in which or the source from which the judgment-debtor had procured it.

132. In the case of Digbijoy Roy v. Ata Rahaman(5) the facts were these:—On the 17th March 1908, the plaintiff instituted a suit for rent against the tenant. On the 9th April 1908, the tenant filed a written statement in which he alleged that he had transferred his interest in the holding to the present defendant on the 26th March 1906. The transferee appeared in Court at the same time and prayed that he might be added as a defendant.

133. The Court granted the application and the result was that the transferee was treated as a party defendant. On the same day the transferee made a payment of the amount claimed in the suit to the pleader of the plaintiff who certified the payment to the Court, but it appears that, in his petition to the Court, the pleader stated that he had received the rent from the transferee as agent of the tenant. It was not disputed that the sum paid to the pleader was on that very day made over by him to the plaintiff.

134. On these facts the Court, presided over by Mukerjee and Carnduff, JJ., had to decide whether there was a recognition by the landlord of the transferee, as a tenant and they answered the question in the negative. This case is an authority for the proposition that the fact that the transferee pays the rent as such transferee does not decide the question; be must establish that the landlord accepted rent from him as a tenant. In other words, it is the act of the landlord that decides the question, and not the act of the person who claims the status of the tenant.

135. These being the principles upon which the doctrine of recognition rests, I have to consider whether on the facts of this case, the defendants have established that Mr. Hudson was recognised as a tenant by the plaintiff.

136. In support of his case, Mr. Manuk relies upon Exhibits N and N-1, rent receipts granted to him by the landlord on the 20th April, 1891, and 18th December, 1892, respectively, and upon Exhibit I; the rent receipt, dated the 18th Baisakh 1303 (16th April, 1896), upon Exhibit K, the wasilbaki paper for 1304, and upon the recitals of the lease, Exhibit I, taken by Mr. Hudson on the 19th April, 1897. The plaintiff, on the other hand, relies upon Exhibit 7, Exhibit 8 and upon the terms of the lease, Exhibit I.

137. The argument in regard to Exhibits N and N-1 is a short one and may be disposed of at once. Exhibit N-1 is a receipt for thekadari rent and does not touch the case of either party. Exhibit N, however, stands on a different footing; and, if genuine, completely establishes the defendant's case. It purports to be a receipt for kasht lands in addition to other lands. The defendants called Rudra Prasad, the writer of the document, and he asserted that the word ‘mai’ (meaning “with”) was not in his handwriting and that it was doubtful whether the word kasht was in his handwriting. After examining the document, he said that

“it may be that the word formerly was ‘babat’—(meaning ‘on account of’) and that it has been changed to kasht.”

138. An inspection of the document has satisfied me that it has been deliberately tampered with, and I can place no reliance on it. It is only necessary to add that, at the hearing of the appeal before Mr. Justice Mullick, and Mr. Justice Jwala Prasad, Mr. Manuk stated that he would not rely either on Exhibit N or N-1 as the appearance of the disputed part of Exhibit N was suspicious, I must, therefore, reject these documents entirely from my consideration.

139. I now come to the other documents on which reliance is placed by the parties. In order to understand and appreciate these documents, it is important to consider the rival cases that have been put forward in this Court. It will be remembered that the last lease taken by Nathu Lal expired in 1302, and that it was during the pendency of that lease that Nathu Lal conveyed the Indigo Concern Mr. Hudson.

140. It will also be remembered that the first lease taken by Mr. Hudson (Exhibit I) is dated the 19th April, 1897 and was to run from 1305 to 1312. The defendants' case is that in 1303 and 1304 the Factory was not in possession of the Mauza as the thekadar but retained the disputed lands as an occupancy tenant, for which Mr. Hudson on the 18th Baisakh 1303 (16th April, 1896) paid Rs. 138 out of the total rent of Rs. 197-140 due by him to the landlord for 1303 and received a rent receipt Exhibit I, by which the landlord recognised him as an occupancy tenant.

141. They say that during the negotiation for afresh ticca lease which ultimately resulted in the lease of 19th April, 1897; it was agreed, between Mr. Hudson and the plaintiff that he, Mr. Hudson, should make himself responsible for the rents, due by the raiyats to the landlord for the years 1303 and 1304 and recover them from the raiyats, and that, in pursuance of this arrangement and in order to deter, mine what was due by the raiyats for these two years, an adjustment of account took place between Mr. Hudson and the raiyats. This adjustment of account, according to the defendants, was evidenced by Exhibit K, which established that Mr. Hudson was the only “cultivator” who had paid rent during those two years the amount paid by him being Rs. 138.

142. That document shows that, after deducting Rs. 138 already paid by Mr. Hudson, there was a balance of Rs. 1,01 due by the raiyats (including Mr. Hudson) which Mr. Hudson undertook, in the first instance, to pay to the plaintiff. The defendants contend that this arrangement is completely borne out by the recitals of the lease Exhibit I which, read in conjunction with Exhibits I and K, completely establishes that the plaintiff recognized Mr. Hudson as a raiyat.

143. The plaintiff's case is this that he granted an oral lease to Mr. Hudson for the years 1303 and 1304 and that Rs. 138 was collected by Matuk Lal from the tenants and not from Mr. Hudson. He strongly relies upon Exhibits 7 and 8, and upon the terms of the lease Exhibit I. It will be remembered that though the title passed to the plaintiff on the 13th July, 1895, by virtue of his purchase still, as he could not pay the fall consideration money, he did not get possession until the 29th August, 1896; and the plaintiff's case is that it was arranged between him and the outgoing proprietor Matuk Lal that, in lieu of interest due on the purchase-money which remained unpaid, he would pay Matuk Lal such income as he did receive from the conveyed property, namely, Rs. 500 as ticca rent, and Rs. 20 as rent of the occupancy holding of Cowsan Mian which had always been excluded from the ticca, Rs. 520 in all Exhibit 7, according to the plaintiff sets out the arrangement between him and Matuk Lal, and shows that, after giving a deduction for Rs. 138 which, according to Exhibit 7, Matuk Lal had received from the tenants there was a sum of Rs. 332 due by the plaintiff to Matuk Lal which the plaintiff paid to Matuk Lal and for which he received the receipt Exhibit 7. Exhibit 8 purports to give a list of the raiyats from whom Rs. 138 was collected.

144. Now, as is usual in these cases, each side challenges the documents on which the other side relies. The plaintiff says that Exhibits I and K have been fabricated by the defendants in order to make it appear that Rs. 138 was paid by Mr. Hudson as rent of the occupancy holdings, and the defendants retort that Exhibits 7 and 8 have been fabricated by the plaintiff in order to make it appear that sum of money was collected by Matuk Lal from the raiyats, of whom Mr. Hudson was not one.

145. Now the common case of the parties is that Rs. 133 was in fact collected by Matuk Lal at a time when he was in actual possession of the Zemindari, though he had executed a sale deed in favour of the plaintiff. They differ as to the source from which the collection was made, the plaintiff asserting that it was made from tenants of whom Mr. Hudson was not one, the defendants insisting that it was made from Mr. Hudson himself.

146. Now the genuineness of Exhibit 7 has been proved beyond dispute by one of the witnesses examined on behalf of the defendants. Exhibit 8, however, stands on a different footing. It is a document which could be prepared at any time by any enterprising Zemindar and I agree with Mr. Manuk that we ought not to attach any importance to it. Now Exhibit 7 establishes that Matuk Lal had received Rs. 138 from the tenants. The word is used in the plural, reyayanan gayavaya, and certainly throws suspicion on the defendants' case that sum of money was collected from Mr. Hudson himself. It conclusively establishes, in my opinion, that so far as Matuk Lal is concerned, he was not aware of the fact that the collection had been made from Mr. Hudson, though, it does not establish that Mr. Hudson in fact did not pay it.

147. I now come to Exhibit I, which after the exclusion Exhibits N and N-1 constitutes the only documentary evidence of receipt of rent by Matuk Lal from Mr. Hudson. It purports to be a rent receipt, dated the 18th Baisakh 1303 granted on behalf of Matuk Lal to Mr. Hudson in respsct of raiyati lands. The receipt is for Rs. 133, and was actually signed by Khub Lal Patwari, nephew of Dwarka Lal Patwari.

148. The plaintiff asserts that this rent receipt has been fabricated by the defendants, and he relies upon Exhibit 7 containing the statement of Matuk Lal himself that he had collected Rs. 138 from the tenants. Now the defendants have undoubtedly put forward forged and fabricated documents in support of their case, Exhibit E, Exhibit D, Exhibits H, H-1, H-2 and H-3 and Exhibit N. I am bound, therefore, to look upon any document produced by the defendants with suspicion and require the strictest proof of its genuineness.

149. Now there are three points that at once arise in connection with this rent receipt. In the first place, according to what calculation and on what basis was Rs. 138 paid on the 18th Baisakh 1303? The defendants' own case is as shown by Exhibit R that the rent was payable in two kists of Rs. 98-15-0. Now every rent receipt ought to show in respect of which kist the rent is paid. The form of receipt as given in the Bengal Tenancy Act, Schedule II, requires the kist in respect of which the rent is paid to be stated.

150. So far as the form is concerned, Exhibit 1 complies with the provisions of the Bengal Tenancy Act, but it is remarkable that only the year is mentioned in that portion of the receipt where the kist in respect of which the rent was paid ought to have been stated. The reason is not far to seek for. If the rent was payable in two kists, then the payment of Rs. 138 on the 18th Baisakh 1303 was certainly an overpayment. Now, in making this point, I must make it clear that no portion of the rent alleged to have been paid on the 18th Baisakh was appropriated towards arrears of rent. The receipt, Exhibit I, shows that the whole of Rs. 138 was appropriated towards current rent. But then, there is this difficulty that the current rent could never exceed Rs. 98-15-0, if as Exhibit R shows, the rent was payable in two kists.

151. If it be argued that the statement as to the kists in Exhibit R was a mistake on the part of the pleader of the respondents, then the respondents are in a worse position; for if there be no agreement between the parties or established usage to the contrary, a money rent is payable, under Section 53 of the Bengal Tenancy Act, in four equal instalments falling due on the last day of each quarter of the agricultural year, and the current rent, in the present case, could never exceed Rs. 49-7-6. Now the only argument of Mr. Manuk is that, if he were forging a document, he would have forged it so as to make it consistent with the agreement between the parties as to the instalments in which, the rent was payable. But there is an obvious weakness in the argument.

152. The one fact established beyond all reasonable doubt is that Matuk Lal did collect Rs. 138. The plaintiff was in possession of Exhibit 7, the receipt granted by Matuk Lal to him and of the lease Exhibit I in which it was recited that Rs. 138 had been collected by Matuk Lal. That being so, it was obviously impossible for him to make any other case but this that Rs. 138 had been collected by Matuk Lal from him.

153. Secondly, the non-production of the books of account by the defendants ought to have an important bearing on the question. The defendants must have known that the genuineness of Exhibit I would be the critical question in the case, and it was possible for them to establish the payment of rent by them beyond all reasonable doubt by the production of their account books. I wholly disbelieve the explanation which has been offered, namely, that the books of account are, not in existence; and the inference which I draw from the non-production of the; books is that, if produced, they would not support Exhibit I.

154. Lastly, I am suspicious of the person who actually signed the rent-receipt on behalf of Matuk Lal. Now the Bengal Tenancy Act requires a rent-receipt to be signed either by the landlord or his authorised agent. Exhibit I was in fact signed by Khub Lal, who described himself as “Patwari, nephew of Dwarka Lal Patwari.”

155. Now it is admitted that Dwarka Lal was the only registered Patwari of Matuk Lal; but it is contended by Mr. Manuk that Khub Lal had authority from Matuk Lal to grant rent receipts, and he relies upon the evidence of Prayag Dutt, Baldeo Lal and Bhootan Misser. Now all that Prayag Dutt says is that Khub Lal was the nephew of Dwarka Lal and that “he used to work with Dwarka Lal.”

156. This does not establish that he was the authorised agent of Matuk Lal. It is one thing to work with a Patwari, and quite another thing to have the same power as a Patwari in relation to the landlord. Baldeo Lal is the son of Khub Lal and he says that his father collected rent for Matuk Lal up to 1304. That may be so; but the authority ta collect rent does not carry with it the authority to grant rent receipts.

157. The question is not one of technicality, but of substance; for it may well be that Khub Lal, as the nephew of Dwarka Lal, used to help Dwarka Lal in the matter of collection of rent just as many other persons must have helped Dwarka Lal. But an authorised agent for the purpose of granting rent-receipts differs widely from a collecting peon such as Khub Lal might have been. The last witness on this point is Bhootan Misser, who asserts that Khub Lal was the Patwari of the putti under Matuk Lal, but in cross-examination he admits that he has seen no Parwana authorising Khub Lal to collect rent for Matuk Lal.

158. In view of the admitted fact that Dwarka Lal was the registered Patwari of Matuk Lal, I altogether disbelieve this witness. Mr. Manuk also relied upon Exhibit N as showing that Khub Lal used to collect rent on behalf of Matuk Lal. I have no doubt that he did; but the important fact to remember is that Exhibit N was signed as a rent-receipt, not by Khub Lal, but by Matuk Lal himself. That document makes it quite clear that Khub Lal was in the position of a collecting peon, and I have no doubt on the evidence of Prayag Dutt and Baldeo Lal that was his position. I have examined the entire evidence connected with Exhibit I with great anxiety and I have come to the conclusion that it is not a genuine document and ought not to be relied upon. I have no doubt whatever that it has been fabricated in order that the defendants may take advantage of the admitted fact that Matuk Lal had collected Rs. 138 from the tenants. I have also no doubt that they induced Khub Lal to make over the rent-receipt to them, just as later on they induced his son Baldeo Lal to produce the jamabandis Exhibits H, H-1, H-2 and H-3 in Court.

159. I have next to consider the effect of Exhibit I on the fortunes of the case, assuming it to be a genuine document. All that this document establishes is that Mr. Hudson paid Rs. 138 to Khub Lal and received a rent-receipt from Khub Lal. But the question is not whether Mr. Hudson paid Rs. 133 as the rent of the disputed lands, but whether a land, lord having the right to recognize a trespasser as the tenant did recognize him as such. Exhibit 7 is very important from this point of view, for Matuk Lal's statement in Exhibit 7 is that he had realised Rs. 138 from the tenants.

160. Now with reference to Exhibit I two questions arise, first, whether Khub Lal had any authority to bind Matuk Lal by recognizing Mr. Hudson as a raiyat, assuming Khub Lal was the Patwari of Matuk Lal; and, secondly, whether Matuk Lal himself could have recognized Mr. Hudson as a raiyat. On the first question, the decisions of this Court are conclusive.

161. The late Chief Justice of this Court discussed the identical point in the case of A.W.N Wyatt & Others… v. Sheo Gobind Sahu….(6). In the course of his judgment, he said as follows:

“The position and duties of a Patwari are well-known. He is a poorly paid underling employed only to collect rents due to his master and to grant receipts for the same. His implied authority would extend to all subordinate acts which are necessary or incidental to his express authority………………………. In my opinion it is not within the scope of the authority of a rent collector to consent on behalf of his master to the transfer of an occupancy holding. That is an important act to be performed only by a person having some at least of the powers of a manager. I cannot accept the suggestion which has been made that it lay on the landlord in this case to prove at the Patwari had not authority to consent to the transfer. Landlords would be in a; very difficult position if it were held that Patwaris and other underlings should be presumed till the contrary is shown to have the power to sign away their master's rights.”

162. The same view was taken in the case of Janki Sahu v. Thakur Run Bahadur Singh(7). There is no injustice in the rule propounded in these cases, or, as was pointed out in Russo-Chinese Bank v. Li Yau Sam(8), “the authority being thus, represented to be limited, the party prejudiced as notice, and should ascertain, whether or not the act is authorised.”

163. I am of opinion that Exhibit I did not bind Matuk Lal and does not bind the plaintiff.

164. But even if it be assumed that the receipt granted by Khub Lal bound Matuk Lal, I do not see how it can be argued that it also bound the plaintiff. It will be convenient, at this stage, to consider an argument which was suggested rather than formulated by Mr. Manuk, namely, that the title in the tavzi passed to the plaintiff, not on the 13th July 1895, the date of the conveyance, but on the 29th August 1896, the date on which the plaintiff paid the purchase-money to Matuk Lal, and that consequently the recognition of the transfer of the tenancy by Matuk Lal on the 16th April 1896, the date on which the rent-receipt was granted by Khub Lal to Mr. Hudson, completely bound the plaintiff.

165. The argument, in my opinion, proceeded upon a complete disregard of the essential distinction between a sale and a contract for sale, a distinction which it was the object of Section 54 of the Transfer of Property Act to recognize and preserve. Now it will be noticed that it is not an essential condition for a sale that the purchase-money should be paid; all that is necessary is that there should be a transfer of ownership in exchange for a price paid or promised or part paid and part promised and that the transaction, in the case of tangible immovable property of the value of one hundred rupees and upwards, should be evidenced by a registered instrument. Here the document of the 13th July 1895, purports on the face of it to create a transfer. It is a conveyance and not an agreement to convey, and it was executed, delivered and duly registered in accordance with law. What, then, is the position?

166. I cannot do better than quote the weighty observation of Farran, C.J, in Tatia v. Babaji(9). “I am not, however,” said the distinguished Chief Justice, “as at present advised, prepared to assent to the train of thought which puts conveyances of lands in the Mofussil, perfected by possession or registration, where the consideration expressed in the conveyance to have been paid has not in fact been paid, in the same category as contracts void for want of consideration. The radical distinction between a perfected conveyance and a contract does not seem to have been sufficiently borne in mind throughout the judgment.”

167. In my opinion, the document operated as a conveyance on the date of its execution, unless indeed it could be shown by the vendor that there was a separate oral agreement constituting a condition precedent to the attaching of any obligation under the document. But such a separate oral agreement could be proved only by the vendor or his representative-in-interest.

168. For this proposition, the decision of the Judicial Committee in the case of Achat Ram v. Kazim Hussain Khan(10) is conclusive. The defendants are not the representatives-in-interest of Matuk Lal, and consequently it is not open to them to contend that, though the document was executed on the 13th July, 1895, and though it purported, on the face of it, to be a conveyance and not an agreement to convey, title, nevertheless, did not pass until the payment of the purchase-money by the plaintiff to Matuk Lal.

169. But even if it be open to the defendants to raise the contention, I am of opinion that they have not shown that the intention of the parties was that title should not pass until the payment of the purchase-money. The only circumstance upon which the defendants rely is that the purchase-money was not paid till the 29th August 1896. But it has been held in a series of cases that circumstance is wholly immaterial; see Umedmal Motiram v. Davu(11), Sayaji v. Namdro(12), Shib Lal v. Bhagwan Das(13), Baijnath Singh v. Paltu(14), Manogi Singh v. Sarat Lal Mahto(15), Nilmadkab Parhi v. Haram Prasad Parhi(16).

170. On the other hand, Mr. Hudson certainly accepted the position that the plaintiff had a good and valid title to the Touzi from the beginning of 1303 (8th September 1895). By the kabuliyat which Mr. Hudson executed in favour of the plaintiff, he agreed to be responsible to the plaintiff for the rent due to him by the tenants for the years 1303 and 1304; he could only have agreed to be so responsible on the hypothesis that the title had passed to the plaintiff on the execution of the conveyance.

171. It must follow, then, in the view which I take, that the alleged act of Matuk Lal in recognising Mr. Hudson as an occupancy tenant cannot operate to the prejudice of the plaintiff. Mr. Manuk then, relies upon Section 60 of the Bengal Tenancy Act and argues that the only person who could give a valid receipt for the rent was Matuk Lal as he was admittedly the registered proprietor on the date when the rent receipt was granted. That may be so, but it is one thing to give a valid receipt for rent and quite another to recognize a person as having a right of occupancy in the disputed land.

172. The question only arises on the hypothesis that the defendant apart from the recognition has no title to the lands in dispute. If he has, the question of recognition does not arise. The question is—can a person who has conveyed his proprietary interest to another person but whose name is still borne on the Collector's register by giving a rent receipt recognize a person as having a right of occupancy in the land who otherwise has no such right. I am of opinion that it is impossible to uphold the contention of Mr. Manuk. I must, therefore, hold that Exhibit I does not establish any recognition of the defendants' status by the plaintiff.

173. I now come to Exhibit K. This document purports to evidence an adjustment of account between Mr. Hudson and the raiyats to which the plaintiff is not a party. It describes the proprietor of the Factory as a cultivator and discloses the fact that Rs. 395-12-0 was the rent due by him to the landlord in respect of the years 1303 and 1304 out of which Rs. 138 had been paid by him. It is an ex parte statement by Mr. Hudson and stands on the same footing as Exhibit 8 which I have refused to take into consideration.

174. This document, in my opinion, must stand or fall with Exhibit I; and as I have come to the conclusion that Exhibit I is not a genuine document, I can place no reliance whatever on Exhibit K. But, apart from any other consideration, I do not see how this document establishes a case of recognition, since the statement made in Exhibit K is that of Mr. Hudson and not that of the plaintiff. It is elementary that an assertion by a tenant does not establish a case of recognition. It must be established that such an assertion was made to the knowledge of the landlord and that the landlord acquiesced in the assertion deliberately and with knowledge as to its effect.

175. Now, is there any proof that the plaintiff or his authorised agent was present at the transaction which resulted in Exhibit K, or that Exhibit K, was brought to the notice of the plaintiff or his authorised agent? The defendants have examined two witnesses in order to prove Exhibit K; Mr. E.H Hudson whose writing appears on Exhibit K, and Gopal Lal, witness No. 11, who is alleged to have been present at the transaction. Now neither of them says that the plaintiff or his authorised agent was present when Exhibit K was drawn up and prepared and there is no evidence at all to suggest that Exhibit K was ever brought to the notice of the plaintiff or his authorised agent.

176. Now if in fact the plaintiff or his authorised agent was present at the transaction of Exhibit K or that Exhibit K had at any time been brought to the notice of the plaintiff, we would expect to have evidence on this point, since two witnesses, one of them being Mr. Hudson, have given evidence in connection with Exhibit K. It is, in my opinion, an inevitable inference from the failure on the part of the defendants to give any evidence on the point that the plaintiff was not present at the transaction which resulted in Exhibit K and that it was never brought to his notice.

177. It has been suggested, however, that Haji Gowsan was present at the transaction and that is sufficient to affect the plaintiff with notice of the contents of Exhibit K; but Haji Gowsan, as Exhibit 8 shows, was the gomasta of Matuk Lal, the outgoing proprietor and not the gomasta of the plaintiff. That being so, it is impossible to affect the plaintiff with notice of the contents of Exhibit K by the mere proof that Haji Gowsan was present at the transaction.

178. I now come to the lease. The opening words are very important and run as follows:—

“I have obtained ticca, patta of the whole and entire 8 annas of the Collectorate partitioned patti including 36 bighas 7 cottas 11 dhurs of zerait land lying as per boundaries given below…… at a consolidated uniform annual jama of Rs. 600.”

179. It is conceded that the 36 bighas 7 cottas 11 dhurs mentioned in the lease are the disputed lands in the suit; but it is contended by Mr. Manuk that the description of these lands as zerait lands does not conclude the defendants. I quite agree that the description does not conclude the defendants; but still it is evidence in the case and cannot be wholly ignored. Bhzgtu Singh v. Raghu Nath Sahai(17).

180. But quite apart from any other consideration, it is difficult to see why these lands should be specially included in the ticca to be held by the ticcadar along with other lands at a Jama of Rs. 600 per annum, if in fact the Factory had a pre-existing title to these lands which gave it the right to hold these lands as its kasht lands at a jama of Rs. 197-14-0 per year.

181. Now the reason for not concluding a tenant by his description of land as zerait land is this: that if in fact it were raiyati land, such a description, if it were conclusive on the point, might have the effect of barring in perpetuity the acquisition of an occupancy right in the land.

182. But the reason does not operate where the case of the tenant is, as it is here, that by the lease itself the landlord recognised the tenant, as a tenant having rights of occupancy in the land.

183. I think, therefore, that when we are considering, not whether the tenant can by lapse of time acquire a right of occupancy in the land but whether his status as an occupancy tenant has been recognised by the landlord by a series of transactions culminating in the lease itself, it is important to consider how the land has been described in the lease itself and whether there is a demise in respect of that land within the jama mentioned in the lease.

184. The next important passage in the lease runs as follows:—

“There was Rs. 1,150 on account of rent for 1303 and 1304 F. due by the tenants. Out of this Rs. 138 had already been received by the former proprietors, and the remaining sum of Rs. 1,012 was found justly payable to the landlords by the tenants and by me the ticcadar which I, the ticcadar have paid to them in cash and in one lump on getting receipts, and the landlords have brought it to their possession and appropriation, and I, the ticcadar, will get the same from the tenants of the village and from my own tahsil.”

185. The passage is so important that it is necessary to consider it line by line to see if it establishes a case of recognition by the plaintiff. To start with, it certainly does not establish the case of the plaintiff that the Factory was in possession of the Touzi as ticcadar under the oral base during the years 1303 and 1304; but I am not prepared to dismiss the evidence on this point of the plaintiff, Bhonnu Lal Chowdhury, as deliberately false. The Factory was in possession under a lease which expired in 1302. Meanwhile, Matuk Lal had sold his proprietary interest to the plaintiff. Documentary evidence conclusively establishes that negotiations were proceeding with the Factory for a fresh lease.

186. The position of the Factory as ticcadar for 1303 and 1304 was clearly recognised by the lease Exhibit I; for on no other hypothesis could the Factory make itself liable for the entire rent due to the landlord for 1303 and 1304 and recover those rents from the tenants. If their status as ticcadars for 1303 and 1304 has not been recognized by, the plaintiff, then it would have been impossible for the Factory to realise the rents from the tenant in respect of those years.

187. The question, in my opinion, is not really one of fact, but an inference from certain admitted facts, and, though I agree that there was no definite oral lease in favour of the Factory in 1303, which entitled the Factory to retain their ticcadari interest for the years 1303 and 1304, I cannot ignore the arrangement that was arrived at between the plaintiff and the Factory by which the status of the Factory as ticcadar for the years 1303 and 1304 was clearly recognised by the plaintiff. Mr. Manuk, I think, is right in saying that when the Factory wanted to take a lease the plaintiff made this condition with the Factory:

“You make yourself liable to me for the rents due from the tenants for the years 1303 and 1304.”

188. Such a condition was necessary, as the plaintiff was a new landlord and was not acquainted with the local conditions; whereas the Factory, having been the ticcadar, knew exactly what the position was. As a result of the arrangement between them, the Factory made itself primarily liable to the plaintiff for Rs. 1,012, irrespective of the question whether it could or could not collect it from the tenants, subject only to this that if the Factory suffered any loss in respect of the arrears for 1303, the plaintiff would be responsible therefor.

189. Now, is there anything in the passage cited which proves that the plaintiff accepted the position that the Factory was an occupancy tenant having succeeded to the interest of Nathu Lal in his occupancy holdings? For nothing short of that will do, as the cases to which I have referred establish. The document recites that

“there was Rs. 1,150 on account of rent for 1303 and 1304 due by the tenants.”

190. There is no suggestion here that Mr. Hudson was one of the tenants or that any portion of Rs. 1,150 was due from him. It was argued that it is this recital in the lease which establishes that Exhibit K was brought to the notice of the plaintiff. I am unable to accede to this argument. I quite agree that if it is a necessary inference from the recital that Rs. 1,150 on account of rent for 1303 and 1304 was due by the tenants to the plaintiff, that the plaintiff must have seen the contents of Exhibit K, then we must make that inference; but, in my opinion, the inference is not a necessary or an inevitable one.

191. It was possible for the defendants to establish by evidence that Exhibit K was brought to the notice of the plaintiff. They have examined two witnesses to prove Exhibit K, one of them being Mr. Hudson himself. It is in my opinion, very significant that neither of these two witnesses says that Exhibit K was ever brought to the notice of the plaintiff. It was argued before us that it was impossible for the plaintiff to assert that Rs. 1,150 was due from the tenants unless he had seen Exhibit K.

192. This, in my opinion, assumes the genuineness of Exhibit K. The argument of the plaintiff is that Exhibit K has been fabricated on the basis of this very recital in order to lend support to their case that a portion of Rs. 1,150 was due from them in respect of their occupancy holdings. Even if we accept the genuineness of Exhibit K, there is nothing in the recital to which I have referred to establish that Exhibit K must have been brought to the notice of the plaintiff.

193. The utmost that can be argued is that the recital is consistent with the case of the defendants on whom, it must be remembered, the onus lies; but then it is equally consistent with the case of the plaintiff.

194. Three different theories may be advanced as to how the plaintiff came to accept the position that Rs. 1,150 was due to him on account of rent for 1303 and 1304.

195. One of the theories undoubtedly is that he accepted the correctness of Exhibit K. Another theory may be that he accepted the statement made by Mr. Hudson on the point; and as the sum of Rs. 1,150, the rent said to be due to him from the tenants of 1303 and 1304, exceeded the ticca rent that was hitherto paid by the ticcadar to the landlord, which ticca rent was Rs. 500 per year, he accepted the statement without further question. Another theory may be that he accepted the figure from Matuk Lal who was the outgoing proprietor and who, as Exhibit 7 shows, gave the information that Rs. 138 had already been received by him as rent from the tenants.

196. The question, in my opinion, is one of entire speculation as to how the plaintiff accepted the position that Rs. 1,150 was due to him from the tenants for 1303 and 1304; and I must respectfully decline to be drawn into a speculation on this point. There is no direct proof that the plaintiff was aware of the contents of Exhibit K. The circumstances in connection with the recital, to which I have already referred, are equally consistent both with the case of the plaintiff as with the case of the defendants. In such circumstances, the defendants, on whom the onus of proof, as to recognition lies, must fail. The following passage from the judgment of Lord Halsbury, L.C, in the case of Wakelin v. L. and S.W Railway(18), may be usefully cited in this connection:

“My Lords, it is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the defendants some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband, is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails. If in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; Ei qu: affirmat non ei qui negat incumbit pvobatio.”

197. In my opinion, therefore, it is not a necessary or an inevitable inference from the recital to which I have referred that the plaintiff was aware of the contents of Exhibit K. Then the lease recites that

“Rs. 138 had already been received by the former proprietors.”

198. Here, again, there is no suggestion that the sum of money had been paid by Mr. Hudson and not by the tenants other than Mr. Hudson. In fact. Exhibit 7 shows that Matuk Lal had received that sum of money from rayanana gharaya, that is to say, from tenants (in the plural).

199. Then comes the critical passage on which Mr. Manuk strongly relies:

“and the remaining sum of Rs. 1,012 was found justly payable to the landlord by the tenants and by me the ticcadar which I, the ticcadar, have paid to them in cash and in one lump on getting receipts and I, the ticcadar, will get the same from the tenants of the village and from my own tahvil.”

200. I confess that when the arrangement between the plaintiff and Mr. Hudson is remembered there is no difficulty in understanding what the passage means. Mr. Hudson was primarily liable to the plaintiff for Rs. 1,012, though he was entitled to recoup himself from the tenant; and the statement that the sum of Rs. 1,012 was found payable by the tenants and by him, the ticcadar, does not, in my opinion, carry with it an assertion that he was an occupancy tenant having a distinct liability for rent to the plaintiff in respect of the occupancy holdings.

201. Nor does the recital that Mr. Hudson would recover the sum paid by him to the plaintiff from the tenants of the village and from his own “tahvil” carry the case any further, for admittedly the loss would fall on his “tahvil” if he failed to recover any portion of the rent from the tenants. If I may appropriate the language of the learned Judges in the cases to which I have referred, there is nothing to shew in this passage what was the particular interest belonging to the defendant for he does not distinctly state what is the interest he distinctly claims.

202. Nor does it amount to more than this, that he paid the money or undertook to pay it in the names of the admitted raiyats along with his own. Recognition, as I have said before, is a deliberate act with knowledge of its effect; and there is, in my opinion, no injustice in declining to found recognition on the recitals, if they are consistent with the case made by the plaintiff. The passage, which I have already cited from the judgment of Lord Halsbury, L.C supports this proposition, and the cases to which I have referred recognise the principle.

203. In my judgment, there is no assertion in these recitals that Mr. Hudson was an occupancy tenant having succeeded to the interest that belonged to Nathu Lal. In the second place, even if there was such an assertion and the plaintiff took away Rs. 1,012 paid by Mr. Hudson, there was no acceptance by the plaintiff of the position of Mr. Hudson as an occupancy tenant, since the plaintiff was entitled to that sum from Mr. Hudson and he had a right to take the money, to quote the language employed in Robert Wilson v. Radha Dulari Kuer:

“without regard to the manner in which or the source from which” Mr. Hudson had procured it.

204. The plaintiff had the right to assume that Mr. Hudson's admission of liability arose out of the agreement between him and Mr. Hudson preliminary to the lease, by which Mr. Hudson made himself liable for the entire rent due from the raiyats in respect of the years 1303 and 1304; and if he was entitled to the entire rent from Mr. Hudson, it clearly made no difference to him whether Mr. Hudson recouped himself from the tenants or paid it out of his own “tahvil.”

205. In my opinion, the principles laid down in the cases to which I have referred, are equally applicable here, and I must hold that there is nothing in the recitals from which it can be legitimately inferred that the plaintiff recognised Mr. Hudson as an occupancy tenant.

206. But if there is nothing in the recitale to establish a case of recognition by the plaintiff, there is in the concluding portion of the lease, a statement which, in my opinion, directly negatives the defendants case. But as an ingenious attempt has been made to give an explanation to that passage by reference to those passages which precede it, it will be necessary for me to consider all these passages as a whole.

207. These passages are as follows:—

“If for the arrears due by the tenant I have to institute suits and if I obtain decrees and by Enforcing them I put to sale their occupancy holdings and purchase them or if I acquire occupancy rights in any way, then, after the expiry of the term of ticca in my favour, I will on receipt of the sale-proceeds make over to the landlords the possession thereof without any objection whatever on my part. I will give up possession of the lands as regards which I may acquire the right of occupancy and to this I will not raise any objection or contention whatever and if I do so, it will be deemed null and void and improper. Within the mahal I will not purchase the entire occupancy holding or any portion of it. If I do purchase, then, on the termination of the term hereof, it will pass into the possession of the landlords as their zerait land and to this I, the ticcadar, have not and shall not have any objection or contention whatever.”

208. Now, stopping here for a moment, there can be no doubt whatever that the passages which I have cited refer to the acquisition of occupancy rights by Mr. Hudson either by private contract or in execution of rent-decrees that may be obtained by him as ticcadar against the tenants and the agreement between the parties expressly provides, what the law implies, that such occupancy rights belong to the landlord, and must be made over to the landlord on the expiry of the ticca lease.

209. Then occurred the passage on which reliance is placed by Mr. Hassan Imam on behalf of the plaintiff.

“In Assin 1312 F.S I will cut down the indigo crops that may be standing on the zerait lands on payment of 10 annas instalment of rent, and without waiting for any notice, I will relinquish possession of the leasehold property, and in that circumstance I shall have no right to interfere in the leasehold property nor shall I have any right of occupancy in the zerait lands, etc.”

210. Now, it will be remembered that the lease was for seven years and that it expired on the last day of 1311. But, in order to secure to Mr. Hudson the indigo crops grown on the disputed land, the lease provided that Mr. Hudson would have the right to retain possession of the disputed land up to Assin 1312 on the payment of ten annas instalment of the rent. Now, if this passage is referring to the lands in dispute, the condition is utterly inconsistent with the case set up by the defendants.

211. Now I quite understand that any condition in a cultivating lease which bars in perpetuity the acquisition of an occupancy right by the raiyat is wholly void and does not operate to prevent the accrual of such right. If the fact of the tenancy had been established independently of the lease, then I agree with Mr. Manuk that we ought to wholly ignore the covenant of surrender contained in the lease. But the whole argument of Mr. Manuk is F am quoting the exact words used by Mr. Manuk:—

“By this lease, the plaintiff adopted and ratified the transactions as evidenced by Exhibits I and K.”

212. In other words, the lease itself amounts to a recognition of the occupancy rights of the defendants in the disputed lands. Now, if Mr. Manuk is relying upon the lease itself in support of his case as to recognition, it is surely relevant to ask, how is it that by the same lease the landlord is providing for the extension of the term up to Assin 1312 and stipulating for relinquishment of possession by Mr. Hudson on the expiry of the month of Assin 1312?

213. It is, in my opinion, open to the defendants to argue that the covenant as to relinquishment of possession is wholly void and inoperative, but then they must be prepared to establish their tenancy rights by independent evidence and without reference to the terms of the lease-containing the covenant.

214. But it is not open to them to say, “we rely upon the lease to establish recognition of our tenancy rights by the landlord, and we ask you to hold that the covenant as to relinquishment of possession is wholly void and inoperative.”

215. The same document cannot, in my opinion, constitute both recognition and non-recognition. In my opinion, in order to see whether there was a recognition by the lease itself, I ought to look at the whole lease, and when I do so, I find it impossible to hold that the plaintiff deliberately recognised,—for the act of recognition must be a deliberate one,—Mr. Hudson as an occupancy tenant, when I find in the same lease conditions which are incapable of explanation on the hypothesis that there was a recognition of the status of Mr. Hudson as an occupancy tenant by the plaintiff.

216. But then an ingenious argument was advanced by Mr. Manuk. The argument was that the clause containing the covenant for relinquishment of possession of the zerait lands was intended to apply and apply only to the lands that might be acquired during the subsistence of the lease either by private contract or in execution of rent decrees that might be obtained by the ticcadar against the tenants.

217. With all respect, the argument is wholly inadmissible. In the first place the clauses as to acquisition of occupancy rights during the currency of the lease contain their own covenants for relinquishment of possession. In the second place, it is impossible to ignore the clear distinction made in the lease between occupancy rights and zerait lands. Occupancy rights are such rights, as may be purchased by Mr. Hudson during the currency of the lease, and these Mr. Hudson agrees to surrender on the expiry of the lease. Zerait lands are also defined with sufficient clearness in the lease, and they comprise, and comprise only the 36 bighas 7 cottas 11 dhurs of land which are in dispute in this suit.

218. The opening lines of the lease make this clear and the Survey numbers and the area of the zerait lands are given in the schedule to comprise an area of 36 bighas 7 cottas 11 dhurs of land. In my opinion, the lease contains its own interpretation as to the term zerait lands, and by no possible construction of the lease can it beheld that the term “zerait lands” used in the clause on which Mr. Hassan Imam relies means occupancy rights purchased from the tenants during the currency of the lease.

219. In my opinion, the lease Exhibit I, far from establishing the defendants' case, entirely destroys it; and I hold that there is no evidence in the record from which it can be legitimately inferred that the plaintiff recognized Mr. Hudson as an occupancy tenant in relation to the lands in dispute. It must follow that the defendant was bound to make over the disputed lands to the plaintiff on the expiry of the lease.

220. I would allow the appeal, set aside the decree passed by the learned Subordinate Judge and give the plaintiff a decree for possession of the properties claimed in the suit with mesne profits and costs throughout.

221. Adami, J.:— It is not necessary for me to set out in detail either the facts of the case or the points for consideration for they have been most clearly explained in the judgments of my Lord the Chief Justice and Das, J.

222. Firstly, with regard to the acquisition of occupancy holdings by Nathu Lal the defence case was that Nathu Lal acquired the occupancy holdings, 36 bighas. 7 cottas 11 dhurs in area, between 1863 and 1865 and obtained an express recognition of the transfer from the landlord at the end of 1865 by a letter, dated the 19th December, 1865 (Exhibit D). To support this case the letter and certain jamabandis are produced.

223. It is not proved that in the locality occupancy holdings are transferable without the consent of the landlord, and, in the first place, the question arises whether Sunder Sahay, the landlord, had authority to recognise the transfer. He was an eight annas sharer in the estates, but it is the defendants' case that previous to 1865 there had been a private partition of the estate and under it Sunder Sahay became sole landlord of the Mauza within which the 36 bighas 7 cottas 11 dhurs are situated, and thus had authority to sanction a transfer.

224. To support this case the defence rely on the headings of the jamabandhis (Exhibits H and H-1) for 1271 (1863-1864) and 1273 (1865-1866) which described the patti as the private partitioned patti of Sunder Sahay. In 1868 there was a Collectorate partition of the estate on the application of all the share-holders and the jamabandis produced for the years 1869-1870 and 1873-1874 show that the patti had been partitioned off by Collectorate partition.

225. In any case it would be very surprising that, after all the co-sharers had agreed on a private partition, they should all apply for a Collectorate partition and be ready to undergo the trouble and expense it would entail, but when we find that there is reason to suspect the genuineness of the jamabandis whose headings are used to support the case of private partition, great doubt must arise whether there ever was a private partition, and, therefore whether Sunder Sahay in 1865 had authority to recognise a transfer of occupancy holdings.

226. The jamabandis are depended upon to support the case that Nathu Lal purchased occupancy holdings of an area of 35 bighas odd. A comparison of these papers with the batwara khasra (Exhibit 22) of 1868 throws the greatest doubt on their genuineness, and the batwara khasra is an admittedly genuine and authoritative document. My learned brother Das, J., has just dealt exhaustively with this point and it is not necessary to repeat the ground he sets forth; the conclusion must be that the jamabandis cannot be relied on.

227. The khasra shows that the jamabandis do not contain correct entries of the amount of land held in occupancy right by Nathu Lal as proprietor of the Pirakpur Indigo Factory. Nathu Lal, according to the khasra, held 8 bighas 6 cottas 9½ dhurs only in occupancy right, and Sunder Sahay held 30 bighas 12 cottas 13¼ dhurs of zerait or bakasht lands. After the partition Nathu Lal took ticca lease of the village and most probably amalgamated the remaining bakasht land of Sunder Sahay, out of which 2 bighas 11 cottas 11¾ dhurs had been let out to a tenant with his 8 bighas 6 cottas 9¼ dhurs and treated the whole 36 bighas 7 cottas 11 dhurs as his tenancy lands.

228. There are other points in connection with the letter of recognition (Exhibit D) which gave rise to some suspicion and these taken with the clear untrustworthiness of the jamabandis make it impossible to decide either that Nathu Lal acquired occupancy rights in the 36 bighas 7 cottas 11 dhurs or that Sunder Sahay recognised the transfer of the rights.

229. It is next necessary to consider whether by the deed, dated the 23rd July 1890 (Exhibit 12) Nathu Lal conveyed to Mr. Henry William Hudson any occupancy rights held by him in connection with the lands in the village of Etwarpur Jainti.

230. Now it is quite plain that the deed was intended to convey and did convey the Pirakpur Indigo Concern and the schedules to the deed contained a list of all the villages and lands held by the Concern either in proprietary of ticcadari right, but there is no entry in the schedules of occupancy right in the 36 bighas now in dispute.

231. The deed states that the vendors

“have contracted with the purchaser for the sale to him of the Pirakpur Indigo Concern together with all the Taluks, Mauzas, villages, lands, hereditaments and premises of which the particulars are set forth in the schedule,”

232. and proceeds to

“grant, convey, transfer, assign, assure and confirm unto the purchaser, his heirs, executors, administrators and assigns all and every, the said Taluks, Mauzas and lands or parts or shares there in of which the particulars are contained in the schedule hereto and also all ether, if any, the hereditaments and property belonging to or forming part of or held with the said taluks, mauzas and lands…… and all manner of rights, liberties, easements, privileges, profits, commodities, emoluments, advantages and appurtenances whatsoever to the said Taluks, Mauzas, land, Indigo Concern and hereditaments belonging to or in anywise appertaining or therewith usually held, used, occupied, possessed or enjoyed.”

233. Now even if it be held that the words from “and all manner of rights” onwards refer to incorporeal hereditaments and a right of occupancy is a corporeal hereditament still the right of occupancy is a hereditament of the Indigo Concern held with or belonging to the Mauza or lands mentioned in the schedule.

234. As I have said, it is clear that the words of the deed show that the intention was to convey the Indigo Concern and every interest it possessed in the lands mentioned in the schedule, and I am of opinion that any right of occupancy possessed by the Concern in the scheduled lands passed to the purchasers under the deed.

235. But, as found above, there is no reliable evidence that at most anything more than about 8 bighas would pass, for though Nathu Lal may have claimed tenancy over 36 bighas, the evidence to show that his tenancy had been ever recognised is untrustworthy.

236. It may be that Nathu Lal gave Mr. Henry William Hudson to understand that 36 bighas odd were held in tenancy right, and Mr. Hudson may well have believed that he had that right in the said area but until 1897 there is no good evidence of any recognition of the right by the landlord, and in fact when the Settlement operations were going on, no claim was put forward by the Factory to be recorded as occupancy raiyat of the 36 bighas.

237. The Settlement Record was finally published on the 22nd June 1896 and shows the 36 bighas to be bakasht of the Factory but not zerait.” The rent-receipts, Exhibits N and N-1 purporting to have been granted in 1891 and 1892 and to show acceptance of rent in respect of a tenancy of the 36 bighas bear such evident signs of their having been tampered with that it would be unsafe to rely on them.

238. In 1895 the lease under which the Indigo Concern held the lands expired. Matuk Lal was then the proprietor of the estate and was negotiating for its sale to the plaintiff. Mr. Richardson who seems to have been looking after the affairs of the Indigo Concern, seems to have sought for a renewal of the lease but Matuk Lal proposed that 2 bighas of the zeriat land should be excluded from the new patta: in his letter of the 19th June 1895 (Exhibit 3) Mr. Richardson protested that if the 2 bighas were excluded the would be a great loser.

239. It is significant that Mr. Richardson did not resist the exclusion on the ground that the Factory held the lands in occupancy right. This he would surely have done if he had been conscious of the existence of any such right.

240. The plaintiff purchased the estate from Matuk Lal on the 13th of July, 1895 and obtained title by virtue of the purchase but, as he did not pay the purchase-money till the 29th August 1896, he did not get possession till then. Meanwhile, Mr. Hudson was still in possession of the leasehold property though the lease had expired. During this period Rs. 138 was received by Matuk Lal in respect of rent of the property which was held by the Factory, and it appears that Matuk Lal, in agreement with the plaintiff, appropriated this in part payment of the consideration for the purchase by the plaintiff with interest.

241. The plaintiff's case, as shown in his own evidence, is that Matuk Lal himself collected the sum of Rs. 138 from the tenants, and that the Factory was, during the period from 1895 to 1897, holding under an oral lease from him. That the plaintiff's evidence is unreliable there can be no doubt for he has contradicted himself gravely. I can find no reason for distrusting the defendants' case that in order to find out how much rent was due from tenants of the lands covered by the expired lease. Mr. Hudson called the tenants together and in their presence and that of the gomasta of Matuk Lal drew up a wasilbaki account on the 5th April, 1897.

242. This account (Exhibit K) showed that the total rents due for the years 1303 and 1304 amounted to Rs. 1,150. Tha Pirakpur Factory was in that account shown to be a cultivating tenant of 36 bighas 7 cottas 11 dhurs at a rent of Rs. 197 a year or Rs. 395-12-0 for the two years out of which Rs. 138 had been paid. On the hack of the document Mr. Hudson on 8th April, 1897 endorsed the fact that the total account amounted to Rs. 1,150 and that Rs. 1,012 was payable making allowance for the Rs. 138 already paid. The rent-receipt (Exhibit I) signed by Khub Lal Patwari shows that Rs. 138 were paid on the 18th Baisak 1303. I can see no reason to doubt the genuineness of Exhibit K and the receipt Exhibit I. In Exhibit K, Mr. Hudson claimed to be a raiyat is respect of the 36 bighas.

243. On the 19th April 1897, the plaintiff granted Mr. Hudson a lease,

“of the whole and entire 8 aunas of the Collectorate partition patti including 36 bighas 7 cottas 11 dhurs of zerait land.”

244. In the Kabuliyat (Exhibit I) the passage,

“there was Rs. 1,150 on account of rent for 1303 and 1304 F.S due by the tenants, out of this Rs. 138 had already been received by the former proprietors, and the remaining sum of Rs. 1,012 was found justly payable to the landlord by the tenants and by me the ticcadar, which I the ticcadar have paid to them in cash and in one lump on getting receipts and the landlords have brought it to their possession, and appropriation, and I the ticcadar will get the same from the tenants and from my own tahvil, and as regards the arrear due by the tenants and by me the ticcadar for 1304 F.S which I have paid to the landlords I shall have no objection. If as regards the arrears of 1303 F.S I, the ticcadar, suffer any loss then the landlords will be responsible therefor.”

245. is relied on by the defendants to show that the plaintiff was cognisant of Mr. Hudson's claim of raiyati right in the 36 bighas and recognised him as tenant. If this contention were to succeed, the plaintiff's case must fail. Stress is laid on the fact that the kabuliyat mentions that the sum of Rs. 1,150 is due by tenants aud the amount still owing after the deduction of Rs. 138 is to be obtained from the tenants and from Mr. Hudson's own tahvil.

246. A recognition by a landlord to be effective in favour of a tenant must be clear and certain, but in the present instance it is difficult to reconcile the last portion of the kabuliyat with a recognition of occupancy rights. Mr. Hudson agreed that if, during the period of the lease, he acquired any occupancy holding, he would give it up on expiry of the lease and it would pass into the possession of the landlord as his zerait.

247. The concluding passage of the lease runs:—

“I will cat down the indigo crops that may be standing on the zerait lands on payment of 10 annas instalment of rent and without waiting for any notice I will relinquish possession, of the leasehold property and in that circumstance I shall have no right to interfere in the leasehold property nor shall I have any right of occupancy in the zerait lands, etc.”

248. On the face of it this concluding portion of the kabuliyat would seem to negative any recognition of an occupancy right but the undertaking is one which is commonly entered in kabuliyat and which, where occupancy rights exist, has no binding force under the law. At the same time if Mr. Hudson has been cognisant of any such right and was claiming it we would have expected express exception of the occupancy right he claimed.

249. It might well be that the zerait lands on which he was to be allowed to cut the indigo in Assar 1302 were understood by him to mean occupancy holding which he might acquire during the term of the lease and which were to revert to the landlord as zerait on its expiry, but it has to be remembered that the 36 bighas 7 cottas 11 dhurs had been described at the beginning of the kabuliyat as zerait. The general tenor of the document seems to be that all the leased lands were to be returned to the landlord and no occupancy right was to be retained or claimed.

250. How then can the passage relating to the Rs. 1,150 due by the tenants which I have cited above be explained, for it seems to show that the wasilbaki, Exhibit K, in which tenancy right was claimed was known and recognised by the plaintiff? The explanation seems to be this—the arrangement as to ascertaining the amount due from the tenants would appear to have been made between Mr. Hudson and Matuk Lal, and it was the latter's gomasta who attended to watch the landlord's interest; the payment of the Rs. 138 had been made to Matuk Lal, and it was from Matuk Lal that the plaintiff came to know that the Rs. 138 had been paid by “tenants, etc.,” the receipt (Exhibit 7) dated the 29th August, 1896, shows this and it is signed by Matuk Lal.

251. There is every probability that at the time of the lease, the plaintiff merely inquired what sum had been found to be due from tenants and took Mr. Hudson's word for the Rs. 1,012 stated to be still due. It might be that the plaintiff understood the passage in the kabuliyat describing Mr. Hudson as one of the tenants to refer only to the period after expiry of the previous lease during which the Factory was cultivating the lands and paying direct to Matuk Lal.

252. There is no witness to show that the plaintiff ever saw Exhibit K, and neither Mr. Hudson nor Gopal Lal who depose as to the drawing up of Exhibit K say that either the plaintiff or any agent of his was present when Exhibit K was drawn up. It might be argued that any business man would have required fuller information as to what he was demising, but it has to be remembered that reference to the Record-of-Rights, which the plaintiff would probably make, would show him that Mr. Hudson was not recorded as having any occupancy holding in the leased property.

253. I am not satisfied, for the above reasons, that it can be held that it is proved that the plaintiff had notice of the contents of Exhibit K; or that, considering the rest of the document, a case of recognition by the plaintiff of Mr. Hudson's tenancy is made out.

254. Any recognition by Matuk Lal which may be inferred from the receipt of rent from Mr. Hudson and the attendance of his gomasta at the time when Exhibit K was prepared will be of no avail to the defendant for at that time Matuk Lal had sold the property and the title had passed from him. There is no suggestion or entry of any kind in Exhibit K to show that either the plaintiff or any one on his behalf had seen and examined the document.

255. The omission of any entry in the Record-of-Rights finally published in 1896 showing that the Factory had any occupancy right in the 36 bighas odd is a most important feature of the case, showing that during the settlement operations Mr. Hudson was laying no claim to occupancy right.

256. It is almost impossible to believe that if he had been aware of any such right be would have neglected to press his claim before the Settlement Authorities.

257. It is urged that during the settlement operations Mr. Hudson was unable to look after his interests properly, but surely if the occupancy right was believed to exist some of the Factory amla would have brought the matter to the notice of the Settlement Officer or asked Mr. Hudson to press the claim.

258. I must hold, therefore, that the defendant has failed to prove that he holds occupancy rights in the 36 bighas 7 cottas 11 dhurs or that he has been recognised as a raiyat by the landlord; the appeal should accordingly succeed.

259. Appeal allowed.