B MOOBE IND. APP., 82 ANUND LAL SING DE0

[82] A ~ U ~ ~ LAL SING ~ ~ U , - ~ ~ ~ ~ t ; M A ~ A ~ A J A ERA^ ~ U ~ R ~ U ~

N A E ~ ~ ~ ~ DEU, ~ A ~ A D ~ J R , - ~ e ~ ~ o ~ ~ ~ ~ * [Feb. 12, 13, 18501.

Orz A p p d front the S&ey ~~~u~ A&wlut, at ~ e ~ ~ a ~ .

A grant by a former Raja of Pacheet, of a pergunna, part of the ~ e ~ n i n d a r y or

Raj of ~ a c h ~ t ~ to a member of his family, held to be a grant for m a i l ~ t e n a ~ ~ c ~

only, and resu~nption decreed to the Raja in possession.

Semble: Grants made by the predecessor of the Raja in possession, whether in

fee or for maintenance, enure only during the lifetime of the grantor, and

are not binding on his s u ~ e ~ s o r .

~ T ~ ~ e t h e r the Z e m ~ n d a r ~ of Pacheet constitutes an ~ n ~ ~ v ~ s i b ~ e estate of ~ n ~ ~ e ~ i t a n c e ,

and as such in~lienable, ~ ~ ~ e ~ e ?

The Res~ondent in this case was the Raja of Pacheet, a province situate in the

Jungte mahals of ~ ~ i d ~ i a p o r e ; and the question in the appeal was, whether the

Respondent, as the Eaja in ~ossession, had the right to resume a pergunna named

Kasaepar, whicb formed part of the ~ e m ~ n d a r y or R a j s ~ i p of Pacheet, and which

had been granted by a former Raja of Pacheet to the ancestor of the ~ p p e ~ l a n t .

The case of the Eesponde~t was, that Pacheet, by law and the usage of the family,

constituted a Raj, and descended entire to a single heir, to the exclusion of the other

members of the €aniily; and that a grant made by a former Raja, of part of the

Raj, to a member of the family, enured only during the lifetime of the grantor,

and was not binding on his successors, The Appellant denied that the Zemindary

was a Raj, and as such descended entire, contend in^ that it Ern] was div~sibIe among

brothers, and had been divided in the Bengal year 1255 (1748-9 A.D.) between Muni

La1 and his uncle, ~ o h u n La1 ; that on the death of ~ o h u n Lal, his brother, ~ u n c h u n

Lal, succeeded to Mohun Lal's share, and that ~f terwards Kunchun Lal's only son

having died, he adopted as his son S u t r ~ g h u ~ , the seoond son of ~u~~ Lal, and gave

up to Muni La1 the whole of his share of the Zemind&ry, except ~ a s a e p a r , which he

gave to Sutro~hun, and that this title was confirmed by a deed executed by Xuni

La& the re at- rand father of the Respondent, in 1775, which was afternrards CWP

firmed by a deed dated the 7th of May, 1797.

The A ~ p e l ~ a n t and Respondent were both m e ~ b e r s of the ~ ~ r a ~ u n De0 f a ~ i ~ y ,

i n whose possession the ~ e ~ i n d a r y or Rajship of Pacheet had remained for several

ge~era t~ons .

It appeared from the evidence, that previously to the country in which Pacheet

i s situate becoming subject to the English Government, the affairs of the Raj were

involved in great confusion. In 1752, one Gurrood Naraylln was Baja ; his elde&

son, ~ ~ h e e k ~ ~ ~ i ~ ~ Lal, died, leaving a son named Muni Lal, and whilst Muni Lal was

still it minor, family disputes took place, and Gurrood N ~ r a y u n and most of his

c ~ ~ i ~ d r e n w re killed in 8 sanguinitr~ conflict. A contest then took place for the

possession of the Zemindary, and ~ o h u ~ ~ Tal, a younger son of the deceased Raja,

sought8 to oust his nephew, Muni La], and usurp the Raj by force. Muni La1 was

nrorsted in these conflicts with Mohun Lal, and Mohun La€ got possession vf part of

the Raj, and in this possession Xuni La1 appeared to have ac~uiesced. In 1765, Nuni

La1 and Mohun La1 were both forcibly dispossessed by one &gut Ghund. f84] In

2769, or the beginning of 1770, however, Muni Tal regained p o s s ~ s i ~ n , and ir?

Au~ust , 1T70, Mohun La1 died ~ i t ~ ~ o u t iss e. Kunohun Lal, a younger brother of

Mohun Tal, and uncle of Muni Lal, then set up a claim to a share of the ~ e ~ ~ n d a r y ,

xnd got posEession of the lands held by Mohun Lal. In the meantime the British

poirer had become supreme in the country, and in September, 1770, Muui La1

petitioned the Govern~ent) through the Council of Revenue a t N o o r ~ h e d ~ ~ a ~ , for

redress, c ~ a ~ m i n g the Raj as entire. This fed ta an investigation of his right by

the British ~ L i t ~ ~ o r ~ t ~ i e s ; Mr. ginson, on, the s u p e r ~ ~ s o r f thv d i s t r ~ c ~ of B ~ e ~ b h o o ~ ,

being directed to inquire and report on the subject. A full inquiry was instituted,

* Present : ~ e ~ b e r s of the judicia^ C o m ~ ~ t ~ e e ) - ~ o r d B ougham, Lord Lang-

dale, Lord Ca~pbel i , the Right Hon. Dr. L u s h i n ~ ~ n , the Right Hon. T, Pemberton

Leigh. and the Right Hon. Sir ~ d w a r d Ryen.

826

- .".-".--*--. __ ~ I-.-

v. MAHARAJA DHERAJ GURROOD NARAYUN DEO 118501 v XOORE IND. ME., w

and in 1771, Mr. Higginson reported, that, by custom and usage, the Raj was in-

divisible, and the eldest heir alone entitled to succeed. The opinion of the Nawab

of the Naaim of Xoorshedab~ on the question of the right of succession to the

entire Raj was also obtained, which was likewise in favour of Muni Lal’s title, and

accordingly, in March, 1771, on tlie ground that the Raj was indivisible, and that

Muni La3 wtw alone entitled to the possession, orders were issued to Mr. Higginson

to instal Xuni La1 in the ~emindary, and this was accordingly done, and he became

Raja, with the name or title of Raghonath Narayun. Upon the dispossession of

Bunchun La1 he fled to Ramgur ; but afterwards, upon a promise of protection and

a money allowance, he returned to Pacheet, when Muni La1 agreed to make a pro-

visien for the ma~ntenance of Kunchun La& and accordingly gave him the pergunna

Kasaepar for that purpose. About this time Bahadur Sing, the only son of Bunchun

La1 entered into possession of the pergunna, and died in August, 1781, and Muni

Muni Lal, to whom he granted the lands which Muni La1 had given him. Bunchun

La! entered into possession of the.pergunna, and died in August, 1781, and Muni

Lal then resumed possession of Kasaepar. Muni La1 died in 1792, and was succeeded

by his son, Bhurut Sighur, also called Raja Gurrood Narayun, the grandfather of

the Res~~ondent~ He executed a deed, dated the 7th of May, 1797, giving Sutroghun

pwsession, in these terms : -“ As you have informed me that you are in possession

af pergunna Kasaepar, under a deed granted hy Maharaja Dheraj Raghonath

~ ~ r a y u n Deo, my father, and Kunc~~un La1 b, my uncle, and that you now require

a deed from me, I, therefore, give you this deed without having seen those twc?

deeds. You may possess it according to the former deeds.” Bhurut Sikhur after-

wards attempted to take back Kasaepar, but Sutroghun continued in possession untiii

his death, The Government revenue for the pergunna was always paid by the Rajs

of Pacheet. The affairs of the Zemindary were entrusted to Sutroghun, but by his

mismanagement the revenue was allowed to fall into arrear ; and amongst the other

property, Sfty-five villages cif the pergunna Kasaepar were brought to sale for

arrears of revenue, and sold. b j a Gurrood Narayun petitioned the govern men^

fcr relief against these sales, a0 having been effected through oppression and fraud

exercised towards him by the native officers of Government. An i n v ~ t i g a t ~ o n took

place, and a report was made, estab~ishing the justice of the Raja Gurrood Narayun’s

ccmplaints ; and in 1799, an order vas passed for reversing the sale complained of,

and amongst others, the sales of the Kasaepar villages, and reinstating the Raja in

the possession of his Raj. Raja Gurrood Narayun died [86] in 1816, and was

eucceeded by his son, Chyte Sing, called Raja Raghonath Narayun, the father of

the Respondent. In 1818, Sutroghun died, leaving the Appellant, his son, an infant

In that year, Raja Raghonath Narayun petitioned to have the pergunna Kasaepar

delivered to him, on the ground that the Raj was entire, and had devolved solely on

him, and that no grant made by his ancestor could be binding upon him,

In answer to thiFp application, he was told that if he had any claim to the per-

gunna, he must institute a suit to establish his right. Re died 00me time in 1819,

witbout having i n s t i t u t ~ any proceedin~s for recovery of the pergunna, and was

succeeded by his son, the prment Respondent, who, on the 25th of February, 1822,

filed his plaint in the Provincial Court of Calcutta. By the plaint he alleged, that

the ~eminda ry of Pacheet had descended to him from s i ~ t y ~ ~ g h t generat~ons, and

thn: according to the usage of his family, the eldest son of a deceased Raja succeeds

to the Rajship, and i s entitled to possession of all the lands of the Zemindary, and

h o u s ~ ~ o ~ d property and effects, and paying the Go~ernment revenue ; while the other

sons and brothers of the deceased Raja and their families were allowed maintenance,

and remain subject and obedient t o the Raja. He then stated, that if any Raja,

during his Rajship, gave a village or pergunna from his Zemindary, a t a low rent,

for the support of a son or brother, and after his death his eldest son succeeded

to the Ra~ship, the grant and settl~ment of the deceased Raja became null and void,

and they have nothing further to do with the hereditary Zemindary; that according

to family usage, the sale and gifts of the former Zemindars continue only during

their Bajship, and are not permanent : and [B?) that whoever becomes the Raja after

their death has the power of confirming or annulling them, and of making a new

settlement. The Respondent, by his plaint, further stated, that his great-grand-

father, Ra~honath, gave the pergunna Kasaepar from his Zemindary tc his U ~ C I ~ ,

827

Kunchun Lal, in lieu of ~ ~ ~ ~ t e n a n c e ~ and that the latter held it for eight years;

a d that after his death, in 1781-2, ~ g h o n a t h , according to usage, resumed the

p e r ~ n n a , and i n c ~ u d ~ it in the ~ e m i n d a ~ , and paid the Government revenue. Ths

plaint then went on to state, that after the death of ~ g h o n a t h , the g re%~-gran~-

frrtber of the Respondent, ~ a h a r a j a Qheraj Currood ~ a r a y u n Deo, succeeded to the

BajRhip, and took poss~sion of the pergunna of Xasaepar ; and he made his younger

brwiher, Sutroghun, the manager of the affairs of the ~ e ~ ~ n d ~ r ~ ~ who for some time

~ ~ ~ ~ g e ~ the ~ e m i n d a ~ y , subjwt and o b e d ~ ~ i t to the Raja; t h o ~ g h he was after-

wards removed from the management of the Zemindary for embezzlement and fraud.

The Respondent relied upon Ben. Reb. I., 1800, as decisive upon any quest4ion of joint

property.

The A p p e ~ ~ a n ~ , a minor, a p p e ~ r ~ d by his ~ a r d i ~ n , and by his answer denied

the al legat~on~ of the Respondent, and stated that the Rajship of Pacheet was

divided into two equal parts in the Bengal year 1155 ( 1 ~ ~ ~ 9 ~ , in the time of the

former rulers, and they managed the affairs of their portions of the Zemindary for

t~enty-two years. That Mohun L d died in the ~ e n g a l year 1176, and his brother,

Kunchun Laf, got poss~sion of his share. That disputes about the Z e m ~ n d a ~ rose,

and the son of Kunchun Lal, being dead, Kunchun La1 chose Sutroghun, the second

son of Muni LaX, as his own son, and kept only the pergunna of Kasaepar out of his

own share, and gave the rest of his share of the ~ e m i n ~ a ~ to ~ u n ~ La], [&8] and

the Fer~unna of Kasaepar, with his ~ e r ~ n ~ l prop~rty, to Sutroghun, and gave him

a deed for it. That Muni Lal, alias Raghonath ~ a r a y u n Deo, to confirm the right of

Sutroghun~ gave him another deed for the proprietary right of the pergunna Kasae-

par, of which he has continued to have pos8ession, and he denied the allegation of

the ~ ~ a ~ n t i ~ , that Raghonat~ Narayun Deo, the father of his randf father, had

resumed the pergunna of Xasaepar. Ee also, by his answer, asserted, thab Raja

Gurrood ~ a r ~ y u n Deo, the grandfather of the ~espondent, never had possessio^ of

the Z e ~ i n d a r ~ possessed by ~utroghun j but in considerat~on of ~ u t r o g ~ u n , s right,

he gave him a document in the Bengal year 1204 (1797-8), under his own s ~ g n a t u r ~

and the seal of the Kazi ; and according~y, ~utroghun, during his ~~fet ime, paid the

revenue for the pergu~na of Kaaaepar, with that of the ~ e ~ i n d a r y , to the grand-

father and father of the Plaintiff, and after their deaths to the P~aintiff himse1f.

And he further denied the a~~ega t~on , that the Raja had not power to make a grant

for any longer period than his own life, a s s e ~ t ~ n g that the grants made by the

~ncestoxs of tbe ~ ~ a i n t ~ f f in ormer times had been c o n ~ r ~ e d and continued after

their death; and he insisted that, as seventy years had elapsed since the al~eged

division of tile ~ e ~ ~ n d a ~ , and that as the pergunna had regularly descended to the

Defendant's ancestors, as proprietors, without any claim, the Plaintiff's claim was

barred.

The ~ e ~ p o n d e n ~ , in his replication, insisted upon the a ~ ~ e g a t ~ o n c ntained in his

plaint, that the ~emindary had never been divided, and that it had been the ancient

family usetge of this Rajship, that the eldest son of the decewed Raja became the

Raja. Re gave a long account of the disp~tes and contes~s which had taken

place respecting tbe ~ e m i n d a ~ since the year 1754-5. Re further alleged, tha8 it

was a mere f ab r~ca t io~ to state that a deed was given in 1773 by Xunchun La$, and

contended that the deed dated the 7th of May, 1797, alleged to have been given by

his g r a n d ~ a t h ~ r ? vas unwort~y of credit. Re a d ~ ~ t t ~ d that B deed, granting pcr-

p n n a ~ a s a e p a r to the father of the Appe~ant, had been exxecuted by his grand-

father, and he gave the f o l l ~ w i n ~ e x p l a n ~ t ~ o ~ of the fact. Be said that his grand-

father had made the AppellanPs father manager of all the affairs of the Z e m ~ n d a r ~ ,

but, in conseq7~ence of m~sconduct, he subsequent~y dismissed him and took the per-

gunna under his own management; that many false suits were instituted against

the Raja, and he was i ~ p r i ~ o n e d , and the whole Zemindary was in danger of being

sold in parcels by the litigant parties. That the father of the ~ e f e ~ d a n t induced

his grand~ather to make a grant of the per~unna of Kasaepar to him, to save the

entire ~ e ~ i n d a ~ from ruin. Xe relied upon Ben. Beg. X., 1800, respecting in-

d i v ~ s ~ b ~ e estates, in support of his claim to resume the perguiina.

"he Appellant, having attained his majority, put in a rejoinder in person, and

iaai&ed that, when d i s p u t ~ arose between Muni La1 and Mohun La], the Z e ~ ~ n d a r v

was divided, and there was then no custom to prevent its division.

The evidenee was con~ict~ng. On the part of the ~ e s p o ~ d e n t , evidence w a ~

828

It'. ~ A ~ A R A J A ~ H ~ l ~ A J G U R ~ O O ~ NARAYUN IDEO [ 18501 V IEOOBE INI). BPP,, 39

given that acco~.d~ng to law and usage the Zem~ndary of Vacheet was descendible

as an entire Raj, to a single heir ; that a grant by a Raja was not binding on his

successor, but might be r ~ 8 u ~ e d ~ that on the death of Kunchun Lal, in 1781, Raja

Raghonath Narayun, the great~randfather of the Respondent, entered into posses-

sion 1901 of the pergunna in dispute, and that the deed of the 7th of Hay, 1?9r,

dec~aring that Sutroghun was to hold for life only, was duly executed. On the part

of the Appellant, evidence was adduced to show that the Zemiadary was a, divisible

inheritance, and had been divided between Muni La1 and Mohun Lal; he put in

evidence a deed, dated the 26th of July, 1776, from Raghonath Narayun Deo to Kun-

chun Lal, granting Kunchun La1 the pergunna Kasaepar, and giving his second

son, Sutroghun, for adoption, and e x a ~ ~ n e d witnesses to show that Sutroghun had

succeeded to the pergunna in dispute, by ~nheritance.

The suit was brought in the first instance before Mr. ~ a l p o ~ e , the second judge

of the Provincial Court, but no decision was given by him, the- suit being referred

to Bdr. James Curt~s, the fifth judge, He, on the 27th of ~ e b r u a ~ ~ 1829, delivered

judgment, and decreed the Plaintift's claim to be dismissed, declaring that the per-

gunna in dispute was the hereditary property of SutroghuR, and that the possess~on

of the Defendant and his ancestors had been by proprietary right before the Conl-

pany's ~vern!nent, and that the P 1 ~ i n t i ~ ' s claim to the hereditary property of the

~ e ~ e n d a n t could not be admitted or heard under any R ~ u l a t i o n ; that his claim

was unfounded and improper, and, therefore, ordered that the case be dis~~issed

with costs, and the ~e fendan t o be in possession of the pergunna.

The Respondent appealed from this decision to the- Sudder Dewanny Adawlut,

at Bengal, and filed, on the 7th of February, 1833, his reasons of appeal against

the Provincial Court's decree, c ~ n ~ n d i n g , that it was contrary to evidence and the

f a ~ ~ l y usage; he also filed further docuraentary evidence to prove such usage. The

appeal came on for hearing before Bdr. [911 E. ET. ~ a ~ t r a y ~ one of the Judges of the

Sudder Dewanny Court, who, on the 26th of March, 1833, ~ronounced the decree of

the Court, which c~ncurred with the opinion of the ~ r o v ~ n c i a l Judge, and ordered

that the claim and appeal of the Appellant should be dismissed, and the decision of

the Calcutta Provincial Court affirmed, with costs.

The Respondent presented a petit~on to the Sudder Court, ~ r a y ~ n g for a review

of judgment, submitting that the decree was contrary to the provisions Qf the Ben.

Reg. X. of 1800 (a), and the law and the usage of the family.

the Governor-General of India on the subject of the Sudder Court's decree, a l l @ ~ ~ n g ~

that such decree was opposed to the established usage of the country irl which the per-

gunna was situate.

[QZ] An official inquiry was made in the Government offices, to ascertain what

records were in existence concern in^ the ~ r ~ e d ~ n g s of 1711, w~ereby the

hereditary right of Muni Lal to the Zemindary, a8 an ind i~ i s~b le Raj, had been in-

(a) flegulation X. of 1800 recognises the custom of indivisible estates of inherit-

ance in the Jungle mahals.

Section 1. enacts, that " By ~ e g u ~ a t i o n XI. of 1793, the estates of proprietors of

land dying intestate, are declared liable to'be divided among the heirs of the

d~eased , agreeab~y to the Hindoo or M a ~ o ~ e d a n laws. A custom, however, having

been found to prevail in the jungle raahafs of ~ i d n ~ p o r e and other distrieta, by

which the success~on to land^ estates ~nvar jab~y devolves to a single heir, without

the division of the property, and this custom having been long e s t a ~ ~ ~ s h e d , arid

being fou~ded in certain circu~stances of local GoRvenience, wXiich still exist, the

Governor-General in Council has enacted the following rule, to be in force in the

provinces of Bengal, Behar, and Orissa, from the date of its promulgatiorr.

'' Sect. IT. Regu~ation XI. 1793, shall not be considered to su~ersede or afFect any

e s t a b ~ i s h ~ usage which may have obtained in the jungle mrthals of ~ i d ~ i a p ~ r e

other districts, by which the succe~sion to landed estates, the ~ r o ~ r i e t o r f which

may die intestate, has hitherto been considered to devolve to a single heir, to the

exclusion of the other heirs of the deceased. In the rnahals in ques~~on, the local

custom of the country shall be continued in full force as heretofore, and the h u r t 8

of Justice be guided by it in the decision of all elaims which may come before &eo),

to the ~RheritaI~ce of landed property si~uated in those mahals.''

8.39

-II_ - ~ - . ~ I____- I_-- _ _ _ _ l ~ - - - ~ - l _ _

vestigated. The consequence, of these inquiries was, that add~tional documents,

relative to the proceedings of lT71, were produced, showing the investigation which

had then taken place, and the decision which had been then come to in favour of the

rights of Muni La1 ; some addit~onal precedents of decisions support~ng the Respond-

entls claim to succeed to the entire Raj were also produced.

By an order of the Sudder Court, bearing date the 25th of May, 1837, it was

ordered, that a review of the case should be admitted, and the case restored to its

former number.

The review being admitted, the appeal, with the further evidence, came on

again before Mr. R. H. Rattray, and that Judge was of opinion that his former

decision ought to be reversed. In giving judgment, on the 21st of August, 1838, he

said, “ As it appears by the letter of Mr. Alexander Higginsan, supervisor of the

districts of B~rbhoom, and others, to the Council of ~oorshedabad, dated the 21st of

January, 1771, and especially by the opinion of the deputy m ~ n ~ s t e r of the Nazim

of ~oo~,shedabad, regarding the Zemindary of the chukla of Pacheet, and by the

letter of the Council of Moorshedabad, which was sent with the order of the deputy

minister, that Muni La1 had absolute possession of the Zemindary of Ghukla Pacheet,

and that a maintenance was allowed to Kunchun Lal, as being a descendar~t of the

younger brother, and that the expenses allowed to Kunchun La1 for his possession

and ~nanagement of the chukla of Pacheet was discontinued? which removes the

plea 1931 of the Defendant that the Zemindary was divided between Muni La1 and

Mohun La1 in tbe Bengal year 1158, and that after the death of Mohun La1 the half

of the Zemindary went to Kunchun Lal, and that Sutroghun got a gift of the per-

gunna from Kunchun Lal, and afterwards from Bhurut Sikhur, alias Raja Gur-

rood Narayun, in the Bengal year 1204, and the Defendant has no further right to

the p c r ~ u n i ~ a by inheritance or by gift ; for i f the father of the Defendant had really

possess~o~ of the property in dispute by right of inherit~nce, there was no need of

taking a gift of it, and i f the Raj and Zem~ndary had been divided between Huni

Lal and Mohun Lal, a separate contract would certainly haye been made by the

Nwim of the province or the Company’s Government with each of them, which

was not done.” E e then proceeded, ‘‘ The Defendant pleads the limitation of time,

which deserves no attention, as it is not applicable to this case, for it appears by

the papers of the case that the property in dispute was given for the main~nance,

and by the family usage the new Raja has the power of continuing or reguming it,

and if any Raja had not resumed it, ho had the power of cont i~uing it by the family

usage; and the limitation of time cannot be appIied to the proprietary right of the

~ e f e i i d ~ n t , and this sui t was instituted within a short time after the death of

dutroghun ” : arid he directed that the papers in the suit should be laid before another

Judge.

The case accordingly came before Mr. Abercrornbie Dick, another of the Judges

of the Sudder Court, who differed from Mr. Rattray, and was of opinion that the

decision of the Provinc~al Court of ~a lcu t ta , and the former decision of the Sudder

Court was proper, and should be a ~ ~ * m ~ . Be gave his ~udgment on the [94] 2nd of

December, 1839, as follows :-‘‘ It clearly appears by the English papers received,

that Muni Lal, dim Raja Raghonath Narayun, got orders for the entire Zemindary

from Government and the Nawab, and for a monthly allowance to be made to

Kunchun La1 ; but although every search has been made, no such document has been

found to show that Raja Raghonath Narayun obtained posseasion of the entire

~ e ~ i n d a r y , or that Kunchun La1 received his allowance. On the contrary, it is

quite clear by the documents produced by the Defe~dant, that after getting the

order, Ra~honath Narayun agreed to leave to Kunchun LaI the pergunna of Kasaepar,

and Kunchun La1 to give up the rest of his Zemindary to Muni Lal, which was done.

It is , therefore, my opinion that this claim of the Plaintiff i s not connected with

family usage, and the Plaintiff is not competent to annul an adjustment made

between those two which has continued so long a time merely upon family usage,

which has nothing to do with this case, and I, therefore, think that the claim of the

Plaintiff should not be admitted, and that the decision of the Provincial Court and

former decision of this Court, should be aErmed.”

The Court being thus divided in opinion, it became necessary to resort to s third

830

'U. ~ A ~ ~ J A ~ ~ E ~ A J ~ u ~ R ~ ~ ~ ~ A R A Y U ~ IDEO fl850l v XOORE xm. UP., WI

Judge, and the case came before &Er. Lee ~ ~ a r n e r , who, on the 24th of February, 1840,

prdnounced the final decree in the cause, by which, concurring with Mr. Battray, he

decreed the appeal and reversed the previous decisions of the Provincial and Sudder

Courts. The principal part of his judgment was in these terms:---"It i s mg

opinion, that the claim of the Plaintiff, for the r e a m s hereinafter given, is in every

respeck correct, for one of the reasons of Mr. Jamw Curtis, Judge of [953 the Pro-

vincial Court, stated in his decision of the 27th of February, 1829, is, that in the

year 1155, the Zemindary of Pacheet was divided between Muni La1 and Mohun

La1 by Mookund Deo, the Zemindar of Ramgur, in half-shares, by which the family

usage that the Zemindary is not divided has not been proved ; but when the Com-

pany's Government was established, it appears that, on the 4th of May, 1711, Raja

Raghonath Narayun was put in full possession of his Raj by the order of the then

~overnment, and of the Z e ~ ~ n d a r y ; and before that he had an order of the Nawab

and the usual investiture, and the petition wh'ich the agent of Kunchun La1

presented, that the iialf of the Zemindary was his right, and that Muni La1 R a ~ l i ~ n a t ~ ~

~ a r a y u n Deo had forcibly taken it, was rejected; and he was informed that i f he

would go to Pacheet he would get a proper allowance, as he was a descendant of a

younger brother of the family, by which the division of the Zemindary between

Muni La1 and Mohun La1 was annulled, and the entire Z e ~ n ~ n d a r ~ was restored to

the Raja. The ground of the Judge of the Provincial Court on this point, is defective

and unava~ling. ~ e ~ a r d i n g the second ground, on the l ~ ~ ~ i t a t ~ o n of time, that after

such long possession the case cannot be admitted by the Court, under Reg. 1x1. of

1793, and sec. iii. Reg. 11. of 1805, as stated in his decision, it is necessary to

consider the claim in this case, whether, by the order of the 9th of December, 1818, it

i s really the time of dispossession o r not ; but as the suit originated in the order of

the Collector to appoint a guardian and to institute the suit, and there was no

dispute before that for the talook in dispute, which was given for ~ ~ i n t ~ n a n c e , and

the former Rajas had the power of confirming or resuming it by 1963 the family

usage, the time should be reckoned from the date of the ColIector's order which gave

rise to the claim, and it is clear that the suit of the P l a ~ n t ~ ~ , ~ppel lan t , has therefore

been instituted within the prescribed time; moreover, the possession of the Respon-

dent and his ancestor was only for m~in ten~nce , and not'for money or any other con-

sideration to give a proprietary pusseasion : it is, therefore, necessary to ascertain

a-hethar this pergunna was given for maintenance or acquired by irrhcritance

without the consent or con~rma t~on of the Rajas. It certainly appears by the

English letter and inquiries of 1771, and of the agent of the Governor-General a t

Hazaribaugh, which were made by order of the Government, into the usages of this

family, that the eldest son becomes the Raja, and gets full possession of the entire

Zemindary, and the other sons and heirs have a ~ a i n t e n a n c ~ There is, therefore,

no doubt that the pergunna in dispute is included in the Zemindary, and the De-

fendant can have no h e r ~ i t a r y right, although before the Compan~s ~overnment

there mere frequent transfers and contentions. It is not necwsary to inquire into

them; the order of the 4th of May, 1?"i'l, is suBcient and conclusive for the trial of

this case."

From this final decree, the present appeal was brought, and now came on tor

hearing.

Mr, Turner, Q.C., Mr. Forsytfi, and Mr. Maule, for the ~ppel lant , contended, that

the hereditary right of the Appellant to the pergunna through Kunchun La1 was

proved, denying thae it was the custom or usage of the family that a single heir

should succeed to the entire Zemindary, or that the Zemindary was inalienable, and

sub-[97]-mitted, that such custom, if it formerly existed, had been infringed by the

division of the Zemindary between Muni La1 and Mohun Lal. That the grant of the

p e r ~ u ~ ~ n a to Kuncfiun Lal, and confirmed to Sutroghun, was in fee, and did not

terminate with the life of the grantor, m d was not, liable to resumption or annexa-

tion to the ~ e m i n d a ~ by the ~ e s p o n d e ~ e as the r e ~ g n i n ~ Raja; though if such grant

was for ~ a i n t ~ n a n c e only, it might have been resumable. !&at as the AppclIant and

his ancestors had been so long in posseasion, the o.nw was upon the Respon-

dent, to prove t h e c ~ ~ s t ~ m o resume.

Mr. Wigram, Q.C., Mr. Lloyd, Q.C., and Mr. Edmund F. Moore, for the Respon-

dent, submitted, First, that the pergunna in question formed part of Pacheet, which

831

V MOOBE iNQ. APP,, 98 ANUND LAL SING; DE0

was a Rsj and indivis~ble, descend~ng entire to a single heir to the exclusiof of the

rmt of the family, and that, according to the entailed character of the R ~ J S like 8

Scotch entail, was not barrable. Second, that the only title of the Appe~lantJ~ father

u3 the pe rgun~a was under a deed of gift and pro~ision for life, which did not enure

beyond the lifetime of the grantor. Third, that, according to the law and usage of

the family, i t was not competent for any former Raj to bind his s u c c ~ ~ r s tyS a

permanent grant of property belonging to the Raj, and even i f such grant had been

in fee, being made by a former Raja, it was not binding on the Respondent, and was

resumable by him. Fourth, that, according to the provisions contained in the d t d

of the 7th of May, Z 791, the pergunna reverted, on the death of the Appel~ant’s father,

to the Raj.

@a] The a u t ~ ~ o r i t i e ~ referred to upon the ~uest ion of Pacheet being a Raj and

ina~i~nable, were Ben. Regs. XI. of 1793 and X. of 1800; X W. Macnagh~nJs

Principles of Hindoo Law, 7; 1 Strange% Hindoo Law, 198, 208 (2 Edit,); and

Rnja Deedar se^ v. Ealzee ~ ~ ~ ~ 5 o r - ~ ~ ~ - ~ ~ ~ a (2 Moore’s fnd. App. Gases, 441).

Judgment was delivered by

Lord Langdale (Feb. 22, 185O).--In this case, an action was b roug~ t in the Pro-

vincial Court, of Calcutta by the Respondeat, Maharaja; Dheraj Gurrood Narayuu.

Deo, against the Appellant, Anund Id, to reoover from, him the possession of the

pergunna of Kasaepar, part of the Zernindary of Pacheet, situate in the Jungle

inahals in the Presidency of Bengal.

By the decree of Nr. James Curtis, made in the Provincial Court, on the 27th of

February, X829. i t was ordered, that the case should be d i s ~ i s ~ ~ , that the De-

fendant (the Appellant, Anund. Lal) should be in possession of the pergunna in

dispute, and that all the costs of the Court should be charged to the PlaintiB. From

this decree the R e s ~ o n d ~ n t presented an appeal to the Sudder Dewanny Court a t

Calcutta, and on the hearing by Mr. Rattray, on the 26th of March, 1833, it was

adjudged, that the decision of the ~ r o v i n c i ~ l Court was in every respect just and

proper. The exceptions of the Plaintiff (the now Respondent) were held to be vain,

his claim and appeal were dismissed, and the decision of the Provincial Court was

a ~ r ~ ~ e d . After this the Respondent presented a petition for review of judgment,

and the petition liaviiig been granted, the cause was again heard by Mr. Rattray, on

the 2Xst of August, 1838 ; the ~~[99]-spondent hen produced several additional

documents, and i t was held by Mr. Rattray, that the documents. produced by the

Plaintiff proved his claim, and thereupon Mr. Rattrap decreed that his former

decision should be reversed; but the concurrence of another Judge being necessary,

under the c~rcumstances, he ordered the papers to be laid before another Judge, to

pass a final ordex. . Abercromhia Dick,

ariother Judge of the Sudder Dewanny Court, a t Calcutta, and on the 2nd of

December, 1839, he he14 that the claim of the Plaintiff ought not to be admitted, and

that the decision of the Provincial Court, and the first decision of Mr. Rattray,

should be afiirmed. In conse~uence of this difference of opinion, it was ordered, that

the papers shouid be Iaid before another Judge to pass a final order. Under theise

circumstances the case was again heard before &. Edward Lee Warner, who con-

curred with Nr. Rattray in the opinion recorded by him on the 21st of August, 1538,

and differed from. Mr. Dick in his opinion recorded on the I Ith of September, 1839,

and finally ordered, that the claim and appeal of the Plaintiff should be, decreed,

that the former decree of the Sudder Dewanny Court, dated 26th of March, 1833,

which affirmed the decision of the Calcutta Provincial Court, should he reversed, and

that the Plaintiff should be put into possessi.on of the property in dispute, and the

costs of the Court. It is from this decree that the present appeal to Her Majesty in

Council is presented by Anund Lal, the Defendant in the cause belov, and now the

Appellant.

It appears that the family of Narayun Deo had in some way had p o ~ s ~ s i o n f the

Sajship and Zemindary of Pacheet for several generations, and that for several

[lOO] years before the year 1769, the p o s ~ ~ i o n had been the subjgct of great and

.i.ioIeut contention, amounting to actual war between the different members of the

family. He had two uncles,

Xohun La1 and Kunchun J d . Mohun L d had possession of and claimed to be

The case was afterwards brought before

Muni La1 was the eldest son of the eldest branch.

832

27. ~ A ~ A R A J A ~~~~J G U R R ~ O ~ ~ A ~ A Y ~ ~ DEO [I8501 v ~~~~~ IND. APP., 101

entitled to part of the Zemindary, or the part of the lands comprised in the

~emindary. Upon his death, in 1769, his brother, ~ u n c h u n La$, beeame possessed

of such part of the Zemindary or land as had been possessed by ~ o ~ i u n Lal, and in

1770, Muni Lal, as Zemindar, complained to the Council of Rexrenue of Moorsliedabad,

that he had been forcibly d i s p o ~ ~ s ~ of h i s Zern~nda~,y; that, after e~pelling one

member of h i s family, he had got possession of part of the R a j and Zernindary, but

that ~ o h u n La1 had also a part, and sfter his death, Kunchun La1 had been in

p~ssess~on of some pergunnas of the Ze~ inda ry , and intended taking more. Ee

stated, that by the ancient custom of the family for many generations, after the

death of the Raja, the eldest son succeeded him, and the other sons had a maintenance

for life, and that the Zemindary was never divided. Ee therefore prayed that the

family usage of the ~eminda ry might be inquired into, and that he might be ordered

to be put into possess~on of the whole Z e ~ ~ ~ ~ d a r ~ .

In consequence of this comp~aint and request, an inquiry was ~ns t i t u~ed and a

report made, and in the result, and on the 7th of March, 1771, the Council of Bevenue

c ~ ~ ~ c l u d e d , or came to the ~etermination, that the succession to the whole ~ e n ~ ~ n d a i ~ ~

devolved by inheritance to the Baja Muni Lal, and that Kunchun Lal {his uncle)

ought to have a reasonab~e and e ~ u ~ t a b ~ e a~~owance for his ~ubsistence, which, in

right tJ&I] of his being descended from a junior branch of the family, was secured

to him by a clause in the sunud.

The Naib Dewan’s pe rwa~na af investi~ure wm o b t ~ i n ~ and sent to NI+.

~ i g ~ i n s o n , the supervisor of Pacheet, who was desired to instal Xuni La1 in the

Zemindary, and in May, 1771, Mr, Wigginson installed him in the whole Zemindary,

and delivered to him the Nawab’s perwanna, and the customary khilate on the

occasion. Kunchun Lal, on hearing that he was deprived of his share of the- Zemin-

dary which he had poss~sed (which. Mr. ~ i g g i ~ s o n calls the half of the Z e ~ ~ n d a r y } ,

retired to Ranigur, and was invited to return, with a promise of p ~ o t ~ t i a n d the

enjoyment of a monthly allowance for himself; with this he does not appear to have

been at first co~itented, for, on the 15th of June, 1772, he comp~ained, by his vakesl,

that he had been supplanted in his division of the ~ e n i i n d a r ~ , and he prayed that he

might be restored to his Zemindary; he was answer^^ that if he vould return to

~ a c l ~ e e t , an equitable and reasonable allowance would ba granted t@ him for his

subsistence, as was due to him by a clause in tlie sunud.

Soon after this ~ h a d u r Sing, the only son of Kunehun Lal, died, and in Au~ust ,

3773, ~ u n c h u n Laf adopted as his son, S u t r o g ~ ~ u ~ i (the second soli of the Raja Xuni

Lal), and con~n~~t t ed o him what i s called the whole property, during the life and

after the death of Kunchun Lal.

No contemporaneous instrument, executed by Muni Lal, is produced ; but the

psrgunna of Kasaepar being within or part of the Zernindary of Pacheet, some

ai.rangement was entered into between Muni La1 and Kunchun Lal, and a deed i s

produced, dated the 26th of July, 1775, by which Muni La1 is a l l ~ ~ e d to have agreed

a6 follows :-“ As my uncle, Kunchun Lal, has [102] reIinquished his half of the Raj,

and come to terms with me, f have given the p~rgunna of Kasaepar to him, and as he

has no son, he has asked me to give him ~ u d h u n La1 (another name for ~utroghun),

whom he would adopt, and keep as his son; I have, therefore, according to the

request of my uncle, given him Mudhun Lal, in the presence of [the persons named in

the deed], in whose presence he has given the entire perguniia and all his property

to Mudhun Lal, and also have given the pergunna and entire p r o p e ~ y of my uncle to

~ u d l ~ u n LaL”

The question in this cause d e p ~ ~ s entirely on the title- which ~ u n c h u n Lal had

or obtained to tbe pergunna of Kasaepar.

The Appellant alleges, that the Raja had a right to alienate any part of the

~einindary; and that Kunchun Laf. even if he had no previous right to Kasaepar,

a c ~ ~ u ~ r e d a right to it by the deed of the 26th of July, 1715, and that the c ~ r c u m ~ a n c e ~

under which ~ u n c h u n La1 had possessed a portion of the Zemindary were snch. that

the re~inquishnient of his claim t o i t was a suBcient cons~deration, if any considera-

tion vere required, for the grant t o him of the p e r ~ u n ~ a of ~ a s a e p a r .

The Respondent, on the other hand, contends, that the Zemindary was ~ n d i ~ , i s ~ b ~ e

or j n ~ ~ ~ e n a b l e , and consequently, that. Muni La1 was incapable, for any consideration,

to transfer any portion of it to ~ u n c h u n Lal, so as to bind his s~ccesso~ in the

P.C. vrr. 833 27

% e ~ i n d a r y ; he further insists, that Muni La1 did not attempt to make an abso~u~e

gift of Kasaepar to Kunchun La& but gave i t to him only for the main~enance, or

part of the mainter~arIce, to which he was entitled from the-Raja, and that the gift

(being onIy for maintenance~ could have no binding eBwt against the successor of

the Raja,

&@3] The ~ p p e l ~ a n t a d ~ i ~ that a grant for maintenance ceases with life of the

grantor? imd he r e h on the power of the Raja to a~iena te~ and the actual a~~enat ion

which he says was made, and, under these circumstances, the title of the ~ ~ ~ a ~ n t ~ ~

fails in either case; first, i f the Baja ww i i ~ c ~ ~ a b ~ e of alienating any part of the

~ e ~ i n d a r y , or secondly, if the grant of ~ a s a e p a r was for maintenance; and as it

appears to us, that the i n a ~ i e ~ a b i l ~ t y of the Z e m ~ n d a r ~ has not been s u ~ c ~ e ~ t l y

estabI~s~ied, i t i s n ~ e s s a r y for us to consider, heth her or not the grant of Muni La1

of Kasaepar to Kunchun La1 was for maintenance? If it was, the Appei~ant has no

title to it.

We consider, that by the p r ~ e ~ ~ n ~ s in 177@ and 1771, from which Kunchun La1

in vain atten~pted to obtain relief in 1'772, it was clearly e ~ a b l i ~ e d that Muni La1

was entitled by inheritance to the whob ~ e ~ i n d a r y , and that his uncle, ~ u n c h u ~

Lal, was entitled to an ~ u ~ t a b ~ ~ and K asonable a~lowance~ to be granted to him for

his subsistence. It was in this state of their respective rightsy that the ~ r a n s a c t ~ Q ~

of 1773, or of 1773 and 17?Ei, took place. It may be questionable whether the deed

of the 26th of July, 1775, is genuine; but suppos~ng it to be 80, Muni La1 thereby

gave the ~ r g u n n a of ~ ~ a a e p a K to ~ u n c h u n Lal, witbout g any mention OC

ma~~~tenance? and the circumstances of the case were suc there might have

been an i n t e ~ t ~ o n to give more than n~aintenance, and that for valuable considera-

tion, ~everthe~ess , there is nothing in the deed to prove that in this gift of the

pe r~unna of Hasaepar, more than a provision for i ~ a i ~ ~ n a n c e was ~~ktended, and

docurucnts of a s ~ b s ~ u e n t da e ~ p p e a r to UB to show sat~s~actorily that no more was

intended.

~ u n c h u n La1 died about 178Xy and was succeed^ [1@Q by his adopted son,

s u t ~ o g ~ ~ u n , the second son of Muni Lal. Muni La1 died in 1192, and w?s succeeded

in the % e ~ n i n d ~ r y by his eldest gon, Bhurut Sikhur, If the grant sf Kasaepar to

~ u ~ ~ c h u ~ ~ La1 had been a valid permanent grant, Sutroghun was entitled to it with-

out any regrant or coiifirmation by Bhurut Sikhur ; but on the ?th of Nay, 1797,

8s he sayys, without having seen the former deed, ~ h u r u t Sikhur ~ x ~ ~ t e d a new deed,

a u t h o r ~ ~ ~ n ~ S u t r o ~ ~ u ~ tio possess ~ a s a % ~ ~ r , ~ c c o r d ~ n g to the former deeds. This

deed is quite consi8tent with the ~ u ~ ~ o s i t ~ o ~ tha &e fermer deed was a grant fo r

i ~ ~ a ~ n t e n a ~ ~ e , but ~nconsist~nt with the s u ~ ~ o s i t ~ o n that the former doed was absolute.

We do not think that the least credit i s due to the deed of contemp~raneous date

slleged to have been executed by Sutroghun to ~ h u r u t Sikhur.

It appears by the report of Mr. Vander Bayden (in JaxiuaKy, I?%), that the

country was in a very unsettled state, that Bhurut Sikhur was in very great

pecuniary d i ~ c ~ i l ~ ~ e s j and p r o ~ e e d i ~ i ~ were adopted to set aside sales which were

supposed to have been i m p r o p e ~ l ~ o b ~ ~ i n e ~ from him. And some d~sputes were

subsisting between Sut roghu~ and Bhurut Fikhur, respecting the payme~t of so

much of the revenue of the Zemindary as was due from Sutroghun, in respect of

K a s a e ~ ~ ~ , part of the land within the Z e ~ i n d a r ~ , to Bhurut ~ i k h u r , by whom the

revenue of the whole ~ e m i n d a ~ was p a y a ~ ~ e to ~ o v e r ~ m e n t , and also in reqect of a

money al~owance for majntenance, which ~ut roghun c l a ~ m ~ to be due to him from

~ h u r u ~ Sikhur.

On the 15th of A u ~ u s ~ ~ 1803, S u ~ r o ~ I ~ u n presented a ~ t i t i o ~ to the ~ o v e r n ~ ~ ,

in which he c o ~ ~ ~ p ~ a ~ n e d of ~ ~ u r u t Sikhur ; that he had s t~pped an allowa~ce in

cash made to him. by deed; besides wh~eh, he, Sutroghun, had the pe r~unna of

Kasa~par, for his m a i n t e - ~ l ~ l ~ n a n c e ; and that Bhurut Sikhur had made a grant

of that pe r~unna given for his inaintenance to the son of his eldest son. He alleged

fur the^, that he wag enjoying Kasaapar a8 a ~ a ~ n t e n a n c e from his father end h is

uncles (Muni La1 and Kunchun La]), and that the Raia, his brother ~ ~ ~ ~ ~ r ~ ~ t ~ i k ~ ~ u r ,

when he succeeded to the Raj, gave him a deed, under his seal and s~gnature, con-

~ r ~ i ~ g the former deed, and had it registered ; yet he was prepared to take the law

hands and eject the petitioner from the pergunna. Upon this petition

ur was ordered to report in twelve days ; what was done upon it does not

834