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  • provisions of sec. 2, cl. (c) prevent the operation of sec. 111, cl. (d) of that Act. Sec. 2, cl. (c)
  • provisions of sec. III, cl. (d) of the Transfer of Property Act
  • sec. III, cl. (d) of the Transfer of Property Act,
  • TRANSFER OF PROPERTY ACT
  • sec. 117 of the Transfer of Property Act.
  • sec. 70 of the Transfer of Property Act,
  • provisions of Act XI of 1859.
  • LAND ACQUISITION ACT
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Acts
  • provisions of sec. 2, cl. (c) prevent the operation of sec. 111, cl. (d) of that Act. Sec. 2, cl. (c)
  • provisions of sec. III, cl. (d) of the Transfer of Property Act
  • sec. III, cl. (d) of the Transfer of Property Act,
  • TRANSFER OF PROPERTY ACT
  • sec. 117 of the Transfer of Property Act.
  • sec. 70 of the Transfer of Property Act,
  • provisions of Act XI of 1859.
  • LAND ACQUISITION ACT
Smart Summary

Factual and Procedural Background

These appeals concern the apportionment of compensation awarded under the Land Acquisition Act for certain lands. Claimants No. 1 represented the zemindary interest; Claimants No. 2 represented the putni and mokurari interests. The rival claimants filed a petition agreeing that if the Court found the mokurari (referred to as thika) had not merged in the putni, Claimants No. 1 would pay Claimants No. 2 Rs. 4,000 in full settlement of the mokuraridar claim; if the mokurari had merged in the putni, Claimants No. 2 would receive only Rs. 1,000 from Claimants No. 1 in settlement.

Relevant historical facts (as found by the Court and not challenged): in 1855 a mokurari lease for 2,000 bighas at Rs. 6,000 rent was granted to Nobin Chandra Ghose and was specially registered under Act XI of 1859. A putni lease of the entire zemindary was later granted and, in 1865, the putni purchasers (the Dutts) purchased the mokurari from Nobin Chandra Ghose so that both interests came into the Dutt family. The Dutts treated the two interests separately; some shares were mortgaged and purchased by Kristo Kishore Ghose at a sale in 1868. Kristo Kishore's widow, Barnomoyee Dasi (predecessor of Claimants No. 2), obtained decrees and purchases that ultimately resulted in her acquiring the entire putni and the mokurari (completing purchases in 1886). The Court below found the mokurari and putni had been kept separate throughout — a finding not challenged on appeal.

Legal Issues Presented

  1. Whether the mokurari interest merged in the putni interest (considered both apart from the Transfer of Property Act and with reference to the provisions of that Act).
  2. Whether the provisions of section III, clause (d) of the Transfer of Property Act apply to the mokurari and putni in this case, given timing of creation and vesting of interests.
  3. Whether Claimants No. 1 are entitled to any portion of the compensation awarded for trees (trees being part of the putni talook).
  4. Whether Claimants No. 1 are entitled to share in amounts awarded to certain tenants (cases Nos. 810, 815 and 817) which Claimants No. 2 acquired by purchase after the award.
  5. What remission (abatement) in the putni rent Claimants No. 2 are entitled to on account of lands acquired.

Arguments of the Parties

Claimants No. 1 (as reflected in the record)

  • Entered into the petition agreement (described above) that conditioned payment to Claimants No. 2 on whether the mokurari had merged in the putni.
  • The Court below held certain positions (for example that claimants No. 1 were not entitled to any portion of the compensation awarded for trees); the opinion affirms those holdings. The text does not set out extensive distinct appellate arguments from Claimants No. 1 beyond the petition arrangement and the issues on appeal.

Claimants No. 2 / Respondents (as reflected in the record)

  • Contended that section III, clause (d) of the Transfer of Property Act is inapplicable because Barnomoyee Dasi acquired a 4 annas share of the mokurari before the Transfer of Property Act came into force and the remaining 12 annas afterwards, so that the entire mokurari did not vest in her at the same time.
  • Relied on the putni kabuliat (agreement) clause under which, they contend, any remission obtained by the zemindar from Government revenue for lands taken up for public works should yield a corresponding reduction of putni rent payable to the putnidar.
  • Claimed acquired tenant awards in certain cases by purchase from tenants after awards had been made; accordingly their entitlement to those amounts was claimed as purchasers and not as putnidars.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Wotmesh Chander Goqpio v. Rajnarain Roy (Sir Barnes Peacock, C.J.) Expressed the view (impression) that the doctrine of merger does not apply to lands in the Mofussil in India; observed practice of keeping putni talooks on foot without trustees to prevent merger. Used to show an authoritative statement that the doctrine of merger may not apply; cited as part of a body of authorities indicating non-uniformity on merger doctrine for Indian tenures.
Prosunno Nath Roy v. Jogut Chunder Pundit Adopted the view that the doctrine of merger does not apply; where putnidar purchased zemindary and from the date did not pay rent as putnidar, court held he could not set up putnidar title against co-sharers for contribution. Cited to demonstrate earlier judicial reluctance to apply merger doctrine to putni/zemindari relations.
Jibanti Nath Khan v. Gokool Chunder Chowdkury Held that there was no authority for applying the doctrine of merger to putni coming into same hands as zemindari in India; declined to apply doctrine. Relied on as establishing (by 1891) that doctrine of merger did not apply in such cases; Court treated this as settled law in that period.
Prosunno Nath Ray v. Jagat Chunder Pundit Decision proceeded on the ground that the putnidar, after purchase of zemindari, did not treat putni as a subsisting tenure. Distinguished: cited to show that merger in that case turned on the conduct of the putnidar (not treating the sub-tenure as subsisting) rather than a general doctrine.
Kishen Dutt Ram v. Mamtaj Ali Khan (Privy Council) Observation relied on in later cases that where purchases were made by or on behalf of a talookdar holding under an absolute title, the tenures would as a matter of course have merged in the talook; the decision dealt with mortgagor/mortgagee and accessions and noted some tenures were resumable and might fall into parent estate. Discussed and distinguished: Court observed that the Privy Council's observations related to tenures different in nature (sometimes resumable) from putni/mokurari, and that the Privy Council's decision focused on mortgagor/mortgagee accessions and possibly sec. 70 of the Transfer of Property Act.
Surja Narain Mandal v. Nanda Lal Sinha Relied on the Privy Council passage to hold that a mokurari interest merged in a superior shikmi interest; decision suggested merger. Court disagreed with reliance: held the tenures in the present case were of different nature (mokurari not resumable), mokurari was kept alive as a distinct sub-tenure, and the earlier decision might have been based on accession under sec. 70 rather than merger.
Ulfat Hossain v. Gayani Dass Followed Surja Narain Mandal; Stephen and Vincent, JJ. held that sec. 2(c) did not prevent operation of sec. III, cl. (d) of the Transfer of Property Act (i.e., they held a merger could take place despite creation of mokurari before the Act). Court explicitly disagreed with this view: held that sec. 2(c) protects rights arising from legal relations constituted before the Act, so the provisions of sec. III(d) did not apply where mokurari was created before the Act.
Promotho Nath Mitter v. Kali Prosonno Chowdhury Held that a putni lease is not a lease for agricultural purposes; also Banerjee, J.'s view that the Transfer of Property Act did not affect leases created before its commencement in the manner asserted by some judgments. Used to support the conclusion that the mokurari in the present case was not a lease for agricultural purposes and to support the view that sec. 2(c) prevents sec. III(d) from applying to a mokurari created before the Act.

Court's Reasoning and Analysis

The Court proceeded through the issues in sequence:

  1. Merger apart from the Transfer of Property Act:
    • The Court examined the historical record and found the mokurari and putni had been kept separate throughout the period in question; this factual finding was not challenged. Accordingly, the Court held that apart from the Transfer of Property Act there was no merger because the mokurari was kept alive as a distinct sub-tenure.
    • The Court reviewed authorities showing non-uniformity on the doctrine of merger in India (citing several decisions) and concluded that the present facts — continuous separate treatment of mokurari and putni — precluded a merger independently of statutory provisions.
  2. Applicability of sec. III, clause (d) of the Transfer of Property Act:
    • The Court considered the respondents' contention that sec. III(d) was inapplicable because the mokurari had been acquired piecemeal (part before and part after the Act) and thus did not vest simultaneously; the Court rejected this contention in principle (a person may acquire superior and subordinate interests piecemeal, and if ultimately both interests vest in the same person at any point, a merger would occur where the provision applies).
    • However, the decisive point for the Court was sec. 2, clause (c) of the Transfer of Property Act, which states that nothing in the Act shall be deemed to affect rights or liabilities arising out of legal relations constituted before the Act came into force. The mokurari was created before the Act; therefore, rights arising from that pre-Act legal relation could not be affected by sec. III(d) according to the Court's construction of sec. 2(c).
    • The Court disagreed with the contrary view taken by Stephen and Vincent, JJ. in Ulfat Hossain v. Gayani Dass. The present Court held that allowing sec. III(d) to operate despite sec. 2(c) would make the Act govern all leases created before its enactment, which, the Court concluded, is not the correct construction of sec. 2(c). The Court preferred the interpretation of Banerjee, J. in Promotho Nath Mitter.
    • Therefore, because the mokurari was constituted before the Transfer of Property Act and had been kept alive as a separate sub-tenure, sec. III(d) did not apply and there was no merger under the Act.
  3. Entitlement to compensation for trees:
    • The Court held that the trees were part of the putni talook and agreed with the Court below that Claimants No. 1 were not entitled to any portion of the compensation awarded for the trees.
  4. Entitlement to amounts awarded to tenants in cases Nos. 810, 815 and 817:
    • The Court agreed with the Court below that Claimants No. 1 were not entitled to share in those amounts. Claimants No. 2 became entitled by purchasing the rights of the tenants after the award; they held those amounts not as putnidars but by virtue of purchase from the tenants.
  5. Remission (abatement) in putni rent for lands acquired:
    • The Court examined the putni kabuliat (agreement) and its translated language. The original concluding portion (literally translated) was ambiguous. The Court construed the agreement as meaning that the putnidar would get the same amount of remission in putni rent that the zemindar obtained as remission in Government revenue for lands acquired.
    • The Court noted that in a previous suit (1894) Barnomoyee Dasi had obtained remission in putni rent equal to the zemindar's remission for lands acquired for the Budge-Budge Railway, and that this construction matched the parties' own earlier construction.
    • Although the words in the agreement referred to culverts, embankments and roads, the Court treated those words as illustrative rather than exhaustive and therefore applicable to the present acquisitions.
    • Accordingly, the Court held Claimants No. 2 were entitled to an abatement in the putni rent only for Rs. 310 — the amount which the zemindar would get abatement of in Government revenue. The decree below was varied to this extent.

Holding and Implications

Core holding: The Court held that there was no merger of the mokurari in the putni (both apart from the Transfer of Property Act and under the Act, because the mokurari was created before the Act and sec. 2(c) prevented the operation of sec. III(d) in the present circumstances); further, the Court varied the decree below to grant Claimants No. 2 an abatement in the putni rent of Rs. 310 and otherwise dismissed the appeals.

Direct consequences for the parties (as stated in the opinion):

  • The mokurari remained a distinct sub-tenure and did not merge into the putni; the earlier factual finding that the two interests were kept separate is affirmed.
  • Claimants No. 1 are not entitled to any portion of the compensation awarded for the trees (trees are part of the putni talook).
  • Claimants No. 1 are not entitled to share in amounts awarded to tenants in cases Nos. 810, 815 and 817; Claimants No. 2's entitlement to those amounts arises from purchase from the tenants (not from putni title).
  • Claimants No. 2 are entitled to an abatement in putni rent of Rs. 310 (the amount corresponding to the zemindar's remission in Government revenue for the lands acquired); the decree below is varied accordingly.
  • In all other respects the appeals are dismissed and the Court made no order as to costs.

Broader legal implication: The Court expressed and applied a view of statutory construction — namely that sec. 2, clause (c) of the Transfer of Property Act protects rights arising from legal relations constituted before the Act and thus can prevent the operation of sec. III, clause (d) in appropriate cases — but the opinion itself does not state that it is laying down a new, general precedent beyond the decision in these appeals.

    Hirendra Nath Dutt And Others v. Hari Mohan Ghosh And Others

    N.R Chatterjea, J.:— The questions involved in these Appeals relate to the apportionment of the compensation money awarded under the Land Acquisition Act, in respect of certain lands acquired under that Act. The claimants No. 1 represent the zemindary interest, while the claimants No. 2 represent the putni and mokurari interests in the land acquired.

    By a petition filed in the Court below, the rival claimants agreed that if the Court found the mokurari (referred to in the proceedings as thika) had not become merged in the putni, the claimants No. 1 will pay claimants No. 2 Rs. 4,000 out of the total compensation which they will receive in full settlement of their entire claim as mokuraridar, but if the Court found that the mokurari had become merged in the putni, the claimants No. 2 will receive from the claimants No. 1 only Rs. 1,000 in settlement of the claim.

    The first question therefore is whether the mokurari merged in the putni. It appears, that on the 29th July, 1855, the zemindars granted a mokurari lease in respect of 2,000 bighas of lands at a rent of Rs. 6,000 to one Nobin Chandra Ghose who got the tenure specially registered under the provisions of Act XI of 1859. Subsequently the zemindars granted a putni lease of the entire zemindary to certain persons called the Outts and these Dutts on the 15th February, 1865 purchased the mokurari interest from Nobin Chandra Ghose, so that both the putni and the mokurari interests came into the hands of the Dutt family in 1865. The Dutts however appear to have dealt with the two interests separately. Some of them mortgaged their shares both in the putni and the mokurari to one Kristo Kishore Ghose, who puichased the shares at a sale held on the 8th April, 1868 by the Official Assignee. After the death of Kristo Kishore his widow Barnomoyee Dasi (the predecessor of the claimants No. 2) brought a suit for recovery of possession of the shares so purchased, and obtained a decree for possession of a 4 annas share of the putni and the mokurari, respectively. The putni mahal was subsequently sold under Reg. VIII of 1819 and was purchased by Barnomoyee on the 13th May, 1880. This sale of the putni however did not affect the mokurari, because as already stated, the mokurari was specially registered under the provisions of Act XI of 1859. Barnomoyee therefore became the owner of the entire putni, and of a 4 annas share of the mokurari in 1880. She purchased the remaining shares in the mokurari in 1886, so that the entire putni and the entire mokurari came into the hands of Barnomoyee in 1886 and eventually passed into the hands of the claimants No. 2 by partition with their co-sharers. It has been found that the mokurari and the putni interests have been kept separate all along. The finding has not been challenged and could not be challenged on the evidence.

    Now, the question is whether under these circumstances, the mokurari merged in the putni interest, and the question will have to be considered (i) apart from the provisions of the Transfer of Property Act and (ii) with reference to the provisions of the Transfer of Property Act.

    The authorities on the question, how far the doctrine of merger, apart from statutory enactment on the point, is applicable to lands in the Mofussil in this country, do not seem to be uniform. In the case of Wotmesh Chander Goqpio v. Rajnarain Roy, Sir Barnes Peacock, C.J said, “My own impression is that the doctrine of merger does not apply to lands in the Mofussil in this country. …, “I believe it is the practice in this country for zemindars to purchase and keep on foot putni talooks without the necessity of adopting the practice which is followed in England of purchasing such talooks in the name of a trustee to prevent the merger of them. If the doctrine of merger applies, a zemindar could not purchase and hold a putni tenure in Khas possession”. The other learned Judges (Loch and L.V Jackson, JJ.) concurred with the Chief Justice, but the question was not decided in that case. The same view was taken in Prosunno Nath Roy…Plaintiff; v. Jogut Chunder Pundit…Defendant., however, where the putnidar of a village which formed a portion of a zemindary purchased the zemindary right in that village, and from the date of his purchase did dot pay rent as putnidar, it was held by Markby and Prinsep, JJ. that he could not set up his title as putnidar against his co-sharer zemindars in a suit brought by them for contribution. In the later case of Jibanti Nath Khan v. Gokool Chunder Chowdkury Pigot and Baneijee, JJ. said, “no authority has been shown to us for holding that the doctrine of merger applies to such cases as this in India, that is, that a putni interest must merge in the zemindari interes, if they came into the same bands, and we do not think the we should for the first time as far as we are aware apply the doc line to such a case”. So that in 1891 it was taken to be settled law that the doctrine of merger did not apply to the case of a putni interest coming into the same hands as the zemindary interest. The case of Ptosunno Nath Ray v. Jagat Chunder Pundit does not appear to have been cited before them, but the decision in that case apparenly proceeded upon the ground that the putnidar after his purchase of the zemindary did not treat the pulni as a subsisting tenure.

    In a subsequent case, Surja Narain Mandal v. Nanda Lal Sinha, the learned Judges (Geidt and Ormond, JJ.) relying upon a passage in the judgment of the Judicial Committee in Kishen Dutt Ram v. Mamtaj Ali Khan(6) held that a mokurari interest merged in a superior shikmi interest. The passage relied upon runs as follows:—“Again what followed on the purchases? Had they been made by or on behalf of a talookdar holding under an absolute title, as distinguished from a mortgage title, the tenures would as a matter of course have merged in the talook”. But the decision of the Privy Council proceeded upon the respective rights of the mortgagor and the mortgagee with reference to accessions to mortgaged property. And apart from that, the tenures which were dealt with in that case were certain birt tenures which had been purchased by the mortgagee in possession of a talook taking advantage of his position as mortgagee, and who did not take any steps to keep them alive as distinct sub-tenures for his own benefit. In describing the nature of the tenures, their Lordships pointed out that “they were sometimes resumable, and when resumed, would fall into the parent estate”. The tenures therefore were in their nature entirely different from a pulni or a mokurari tenure which is not resumable. That the tenures were treated as different from pulni or mokurari tenures will be apparent from the following passage in which their Lordships observed:—“It may well be that when the estate mortgaged is a zemindari in Lower Bengal, out of which a putni tenure has been granted, or one within the ambit of which there is an ancient mokurari istemrati tenure, a mortgagee of the zemindari, though in possession, might purchase with his own funds and keep alive for his own benefit that putni or mokurari. In such cases the mortgagee can hardly, be said to have derived from his mortgagor any peculiar means or facilities for making the purchase, which would not be possessed by a stranger, and may therefore be hell entitled equally with a stranger, to make it for his own benefit. In such cases also the putni, if the putnidar failed to fulfil his obligations, would not be resumable by the zemindar, and the zemindari would always have been subject to the mokurari”. We do not think, we are pressed by the decision in Surja Narain Mandal's case, and that for several reasons, first, because the tenures to which the observations of the Privy Council were applicable were in their nature wholly different from a mokutari tenure, secondly, the mokurari does not appear to have been kept alive as a distinct sub-tenure, and, lastly, the decision might have been based solely, and was in fact ultimately based upon the ground that the mokurari interest was an accession to the mortgaged property under sec. 70 of the Transfer of Property Act, and apart from any question of merger. Surja Narain Mandal's case Was followed in the recent case of Ulfat Hossain v. Gayani Dass, by Stephen and Vincent, JJ. and the same observations (except the last) apply to that case also. In the present case the mokurari has all along been treated as a distinct sub-tenure, and we are accordingly of opinion that apart from, the provisions of the Transfer of Property Act there was no merger.

    The next question is whether the provisions of sec. III, cl. (d) of the Transfer of Property Act are applicable to the present case.

    It has been contended on behalf of the Respondents that sec. III, cl. (d) is inapplicable, because Barnomoyee Dasi acquired a 4 annas share of the mokurari before the passing of the Transfer of Property Act, and the remaining 12 annas share after the passing of the Act, and that the entire mokurari therefore did not vest in her at the same time. We are of opinion that there is no force in this contention. A person may acquire the superior and the subordinate interests piecemeal at different times, but if ultimately the entire interests of the lessor and the lessee are vested in the same person at any point of time, we think there is a merger of the two interests at that particular point of time, in any case to which the provisions of sec. III cl. (d) are applicable. We do not agree with the Court below in holding that the mokurari lease was a lease for agricultural purposes within the meaning of sec. 117 of the Transfer of Property Act. A putni lease was held in the case of Promotho Nath Mitter v. Kali Prosonno Chowdhury not to be a lease for agricultural purposes. The mokurari in the present case is described as a talook, and was registered as a talook under Act XI of 1859, and having regard to the evidence and circumstances bearing on the point we are of opinion that it was not a lease for agricultural purposes. But the mokurari was created before the passing of the Transfer of Property Act, and the question therefore arises, whether the provisions of sec. 2, cl. (c) prevent the operation of sec. 111, cl. (d) of that Act. Sec. 2, cl. (c) enacts “nothing herein contained shall be deemed to affect any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability.”

    In the case of Promotho Nath Mitter v. Kali Prosonno Chowdkury, the putni interest was created after the passing of the Transfer of Property Act, and it was held by Maclean, C.J and Baneijee, J. that the putni interest was determined on a purchase of the same by the zemindar even at a sale held in execution of a decree. With reference to the case of Jibanti Nath Khan v. Gokool Chunder Chowdhury where it was held that there was no merger of the putni in the zemindari, Banerjee, J. observed that the case was decided without any reference to the Transfer of Property Act, and was a case to which the provisions of the Transfer of Property Act were inapplicable by reason of cl. (c) of sec. 2 of that Act, the putni lease in that case having been granted, and the putni having been created before the Transfer of Property Act came into operation.

    A contrary view, however, has been taken by Stephen and Vincent, JJ. in the case of Ulfat Hossain v. Gayani Dass. The learned Judges were of opinion that sec. 2, cl. (c) did not prevent the operation of sec. III, cl. (d) of the Transfer of Property Act, although the mokurari was created before the Transfer of Property Act came into operation.

    The learned Judges observed that were it not for paragraph (d) of sec. 2, they should be inclined to hold that the section only saved the effect of the repeals that it enacts in the cases specified, and that the word ‘herein’ meant ‘in this section’ and not ‘in this Act,’ but did not decide the point. We do not agree with this view of the section, but it is unnecessary to discuss the matter as there was no decision upon the point in that case. The learned Judges then observed as follows:—“The right or liability which the Respondent desires to set up is the right of the original mokuraridar Walzuddin to hold his mokurari unaffected by sec. III(d) of the Act, if the mokurari and the parent estate both came into his hands, and this right, he contends, must be passed on to Rai Radha Kissen the purchaser of the mokurari. This is, in our opinion, an incorrect view. The right in this case to which cl. (e) must apply, if it applies at all, is the right of Radha Kissen to the same effect, and it was constituted by his legal relation to the Defendants in the mortgage suit at the time of the mortgage sale which took place after the passing of the Transfer of Property Act. We hold therefore that there is nothing to prevent sec. III(d) of the Act from applying and that a merger has taken place.”

    With great respect for the learned Judges we are unable to agree in this view. A legal relation might have been constituted at the time of the mortgage sale which took place after the passing of the Transfer of Property Act, but it cannot be denied that a legal relation was constituted when the mokurari was created before the passing of the Act. And if the fight of the mokuraridar was to hold the mokurari unaffected by sec. III, cl. (d) of the Act, on the mokurari and the parent estate coming into his hands (as we think it was), such right by reason of the express provisions of sec. 2, cl. (c) could not be affected by any of the provisions of the Act, and the subsequent legal relation constituted after the passing of the Act could not affect the right arising out of the legal relation constituted before the Act. If the view taken in Alfat Hossain's case be correct, every lease created before the passing of the Act would be governed by the provisions of the Act, irrespective of the rights arising out of the legal relation constituted before the Act. We are unable to construe sec. 2, cl. (c) in this manner, and are of opinion that the view, taken by Banerjee, J. in the case of Promotho Nath Mitter v. Kali Prosonno Chowdhury of the effect of the Act upon a lease created before the passing of the Act, is correct. Had the decision in Ulfat Hossain's case been based upon the provisions of the Transfer of Property Act, it might have been necessary to refer the matter to a Full Bench, but the learne Judges in that case held that there was a merger apart from the provisions of the Transfer of Property Act. It is unnecessary therefore to refer the question to a Full Bench. We are of opinion that there was no merger of the mokurari in the putni apart from the provisions of the Transfer of Property Act, because the mokurari was kept alive as a separate sub-tenure from the putni, and the provisions of the Act did not apply, as the mokurari was created before the passing of the Act.

    It is unnecessary to consider whether, having regard to the fact that the mokurari was treated as a subsisting sub-tenure, there could be a merger even if the provisions of the Act were applicable.

    The next question is whether the claimants No. 1 are entitled to any portion of the compensation awarded for the trees. The trees are pan of the putni talook and we are of opinion that the Court below is right in holding that the claimants No. 1 are not entitled to any portion of the compensation awarded for the trees.

    We also agree with the Court below in holding that the claimants No. 1 are not entitled to share in the amounts awarded to the tenants in cases No. 810, 815 and 817, to which claimants No. 2 became entitled by purchasing the rights of the tenants, after the award had been made in their favour. The amounts were awarded to the tenants, and the claimants No. 2 are entitled to the same not as putnidars, but by virtue of their purchase from the tenants.

    The last question is what is the amount of the remission which the claimants No. 2 are entitled to get in the putni rent on account of the lands acquired. The Court below has held that they are entitled to get a proportionate abatement on the principles laid down in the cases referred to in its judgment. But these principles cannot apply where, as in the present case, there is an agreement between the zemindar and the putnidar on the point. The agreement contained in the putni kabuliat as translated in the paper-book runs as follows:—“Neither I nor my successors will ever get any remission in rent on the score if inundation, drought, fallow, failure of crops, construction of culverts and embankments, and diluvion of lands by rivers, etc., but if you obtain from Government any remission in revenue on account of lands acquired by it for construction of culverts, embankments and roads, a proportionate amount of remission will be obtained by me from you in respect of the rent payable to you on account of this putni.”

    The words “a proportionate” do not occur in the original, and the concluding portion literally translated runs as follows:—“but if you obtain remission (lit the amount of remission or the extent of the remission which may be obtained by you) in the sudder jama from the Government in respect of lands taken up for culverts, embankments or roads, I also shall get from you reduction of jama on account of all the said remissions in the jama of this putni”. The language is ambiguous, but it appeals to us upon a proper construction of the agreement as a whole that the putrdar is to get the same amount of remission which the zemindar would get in that Government revenue, and this is the construction which the parties themselves placed upon the agreement in a previous suit. It appears that in a suit for rent brought by the zemindars against Barnomoyee Dasi (the predecessor of claimants No. 2) so far back as 1894, she claimed remission in the putni rent for the same amount which the zemindar was entitled to get remission of in the Government revenue on account of certain lands acquired for the construction of the Budge-Budge Railway in 1888, and the Court granted remission accordingly. The lands in the present case were not acquired for construction of “culverts, embankments or roads,” but we agree with the learned Judge in holding that these words are merely illustrative and not exhaustive. We are accordingly of opinion that the claimants No. 2 are entitled to an abatement in the putni rent only for Rs. 310, i.e, the amount which the zemindar will get abatement of in the Government revenue. To this extent the decree of the Court below will be varied, and in all other respects the appeals will be dismissed. In the circumstances, we make no order as to costs.

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    Hirendra Nath Dutt And Others v. Hari Mohan Ghosh And Others
    (Feb 17, 1914)