The Government of Bengal v. Nawab Jafur Hossein Khan (India)

v XOOBE XND. APR., 467 BENGAL ( ~ o v E R ~ M ~ ~ ~ OF}

mainly upon two grounds: first, that the rights of an absent party, who was no

party to the compromise, must of course be regarded. The Court below does not

seem to have considered that, in truth, all the right of tha t party was merely to

institute a suit for the purpose of setting aside the sale which had been made to

the ~ove r i~men t , and the lease which had been granted under that sale. The Court

below seems also to have proceeded upon some notion of an abandunment by the

Watsons of their title under their leasp, but it is perfectly clear upon the evidence

in this case, that if there was any abandonme~t a t all, it was an a ~ a n ~ ~ ~ ~ m e n t

upon terms, and that the Respondent, if he adopted the abandonment, must also

adopt the ternis on which that abandonment was made.

Their Lordships, therefore, think that the decree of the Sudder Dewanny Court,

cannot be maintained; and the effect will be, to reverse the decree of that Court,

of the 13th of July, 1848, and restore the original decieion of the Principal Sudder

Ameen of the l?th of November, 1846.

The ~ e f e n d a n t , Rajah Ajoodhya Bam Khan, was [467] ordered by the Sudder

Ameen to pay the costs. Their Lordships do not disturb that part of the decree.

The Respondent will have to pay the costs of the appeal from the Principal Sudder

A m e n to the Sudder Dewmny Court, but no costs of appeal in this Court.

THE GOVERNMENT O F BENGAL,--AppeZEants; NAWAB JAFUR HOSSEIK

KHAN,---Respondent* [Feb. 3, 4, 6, 7, 13, and 18, 18543.

0% a ~ p e ~ ~ from the Sdder ~ e w ~ ~ ~ Adawht at Calcutta.

Resumption by Government of Numuk sayer mehals (Saltpetre duty estates)

upheld: The sunuds of the S o o ~ a d a r of Bahar, the ruling power previous

to the Company’s accession to the Dcwanny, purporting to grant this CTovern-

inent revenue as moeurrery istimrary, a t a permanent fixed rent, being

declared forgeries.

~ ~ u e r e . - ~ h e ~ h e r the Numuk sayer mehals, being a sayer sight, was not wholly

abolished by Ben. Reg. XXVII. of 1793, and the Bengal Government, in their

Sovereign character, had not an absolute right to resume.

The s e t t i e ~ ~ n t by the ~ v e r n i n e n t with a proprietor of the soil, under the

Decennial Settlement, made perpetual by Ben. Reg. VIII. of 1193, relates

to land revenue only, and not to sayer duties claimed by a party not a land

proprietor.

Sembie.--The word “ mocurrery,” in a sunud, does not necessarily import

*‘ ~erpetui ty . ’~

This appeal arose out of a claim, on the par t of Burkut-oon-~issa Begum, grand-

mother of the Respondent, to be put in possess~on, a t a fixed jumna, of certain

Niixiiuk sayer mehalv (Saltpetre duty estates) in Pergunnahs, Suresa and Kusnia,

i n the District [4@] of Tirhoot, Bengal, which were resumed by the Bengal Govern-

ment in the year 1817.

The nature and tenure of the N m u k sayer mehals, and the mode in which the

Native Governments originally collected or granted this revenue, and the facts and

evidence in the suit, are elaborate~y detailed in the judgment. The follow in^ is

a short statement of the facts of the case:-

The Respondent, Nawab Jafur Hossein Khan, alleged, that in the year 1736, hie

great grandfather, Khwajah Ubd-ool-Ghunee, became entitled to the nlehals in

question, under sunud or grant from the then Nazini of Behar to himself and his

posterity, a t a fixed jumma of Rs. 2,101. la., and that under that grant his great

~ r a ~ i d f a t ~ e r , Khwajah Mahomed Surnee, his great grandmother, Musauiaat Bebee

Present : Members of the Judicial Committee,-The Lord Justice Knight

Bruoe, the Right Hon. Sir Edward Ryan, Knt., the Right Hon. Sir John Jervis,

Knt., aild the Lord Justice Turner.

972

1). NAWAB JAFUR HOSSEIN KHAN [I8 5 4f V MOORE END. APP., 469

Sifut, and his grandmother, ~u rku~oon-Nis sa Begum, successively held the property

a t that jumma down to its resumption by Government.

I t appeared that Khwajah Mahomed Sumee died some time between the years

1794 and 1199; that Bebee Sifut died about 1805-6, and tha t Burkut-oo~-Nissa

Begum died about 1816-17. Upon her death, the Board of Commissioners caused

an inquiry to be instituted, which led to the resumption of the property by Govern-

mexk On the occasion of this inquiry, Noor-ool-Husun Khan, the son of Burkut-

oon-Nissa Begum, represented himself as entitled to the property a t the fixed

jumma of Rs. 2,101. la.; but he produced no sunud in support of his title, The

documents, however, eventually produced by him, and the records in the possession

of Government, disclosed the following facts :-With respect to Suresa, they showed

that the jumma, instead of having been [&9] fixed, was constantly varying from

the year 1733 down to 1780; that a t that time the j m m a of t h r e ~ f o u r t h ~

of the mehal in Suresa was Rs. 1,351 ; that in 1783 to 1794, the jumma, in respect

of these threefaurths, was entered in the name of Khwajah ~ a h o m e d Surnee;

that in 1799 and 1803, the like jumma, in respect of these three-fourths, was entered

in the name of Babee Sifut; that the other one-fourth, in the year 1765, belonged

to Baboo Doorgbijy Sing, and afterwards to Baboo Surupjeet Sing, and was in the

year 1803 resumed by Governme~t; and that in the year 1803-4, the whole of the

mehal in Suresa was entered in the name of Bebee Sifut, at Its. 1,809, at which

amount the jumma subsequently continued. And, with respect to Kusma, the

documents showed that the jumma constantly varied from the year 1760 ; that, the

property formerly belonged to Maharajah La1 Bullam, and was resumed by Govern-

ment about 1199, and that in that year the jumma first became Rs. 292. lp., and in

1803 was paid a t that rate in the name of Bebee Sifut. It also appeared, that,

on the death of Bebee Sifut, the name of Burkut-oon-Nissa was, on the 2nd of July,

1806, entered on the records a t the jumma of Rs. 1,809. 12a. as to Suresa, and

Rs. 292. la. as to Kusma. The result, therefore, was, that it was only from the

year 1803 that the mehals in Suresa and Kusma appeared to have been held

together a t the jumma alleged. It also appeared by the Government records, that

although in 1786-7 and 1793-4 the sunuds of the Mocurrerydars of the District,

had been called for by the authorities, and copies of the sunuds had been kept in

the Government Offiee, no copy of any sunuds relating to the mehals in questioii

was to be found there. These [470] c i rcu~s tances appeared to negative the

supposition of an ancient grant of the mehals in Suresa and Kusma a t a fixed

jumma, to the ancestor of Noor-ool-Busun Khan. It was also a known circum-

stance, that on the occasion of the Decennial Settlement (which was af temards

made perpetual) the saltpetre mehals in Tirhoot had not been included. And, as

the probability appeared to be, either that there wa& no right to the mehals in Noor-

ool-Busun Khan, or, that if there was any suck right, that there was a t all events

no right to hold the mehals a t the fixed jumma alleged, but that Government were

entitled to assess them in the ordinary manner, the ~ v e r n i n e n t resumed the

mehals.

On the 3rd of September, 1818, a plaint was filed in the name of Burkut-oon-

Xissa Begum against the Government, in the Patna Provincial Court, for posses-

sion of the Numuk sayer mehtas, which she claimed to be entitled to under a grant

from former azims to Ehwajah ~ ~ d - ~ l - G ~ u n e e , at the fixed a s s e s s ~ ~ e ~ t of Bs.

2,101. la.

Before the answer was put in, the claimant produced a sunud from Zyn-ood-deen

Ahmud Khan to Khwajah Ubd-ool-Ghunee, of Pergunnah, Suresa. This Sunud

was to Khwajah Ubd-ool-Ghunee to be held as " ba furzundan," and Government

took the opinion of the Mahomedan law-officers as to meaning of that term ; and

their answer was to the effect, that the claim was invalid, as no one could claim thc

mocurrcry after the death of Rhwajah Udd-ool-Ghunee. The Collector of Tirhoot,

on behalf of the Government, by his answer, insisted, first, that no reliance could

be put upon the sunud adduced by the Plaintiff, which, up to the time of the present

suit, was not entered in any of the [a711 offices of Government; secondly, that if

the sunud in question w a ~ admitted on the ground of i ta being authentic, even then,

the grant was liable to resumption, by reason of the death of the original grantee,

under the provisions of Reg. TWI. of 1793, sec. 16 ; and thirdly, that if the sunrtd

973

v MOORE IND. APP., 472 BENGAL (GOVERNMENT OF)

in question was taken as a grant including descendants, it was not worthy of being

upheld, according to the futwa of the law officers. The reply combated the con-

struction which the answer put upon the meaning of the sunud, and on the

Regulations which were there cited. And, with reference to the non-production of

the docunient before the resumption of the property by Government, the Plaintiff

explained this circumstance by saying, that he had never been required to produce

the sunud by the Board of Commissioners. The Collector, in his rejoinder, re-

iterated tlie reasons why he denied the validity of the claim, first, that the Plaintiffs

sunud was not authentic: secondly, if authentic, the niocurrery in question, owing

to the death of the original grantee, according to the sections 16 and 17 of Reg.

VIII. of 1793, reverted to the State; and, thirdly, that by the term ‘ ba furzundan ’

being inserted in the sunud adduced by the Plaintiff, no title was made out for the

Plaintiff, who was of the children’s children of the original grantee.

The cause was then a t issue, but it was not till December, 1823, that the claimant

put in evidence, for the first time, another sunud, dated 25th Jumadeeoos-sanee,

18th Juloos (A.D. 1736). This document purported to grant Pergunnahs, Suresa

and Kusma at a fixed jumma of Rs. 2,603. lp. to Khwajah Ubd-ool-Ghunee as a

riiocurrery istimrary to continue to him and to his children, generation after

generation.

Before the case was decided, a Special Commis-[472]-sioner was appointed for

the Patna Division under Regulation 111. of 1828; the suit, together with all the

proceedings and evidence, was transferred to that Court; and, on the 5th of May,

1829, an order was made to compel the complainant to bring the cause to a hearing.

On the 30th of May, 1829, the Special Commissioner pronounced his decree in

the cause, dismissing the claim. This decree proceeded to declare that although

the claimant might be a descendant from the family of Khwajah Ubd-ool-Ghunee,

she was not his direct offspring; consequently her objection was untenable. That

froin the report of the Record-keeper of the Collectorate, i t appeared, that from

the beginning of 1141 Fusly, the niocurrery salt mehal of the Pergunnahs in question

had not been at a fixed unfluctuating assessment ; the mehal sometimes appeared

under the item of “ miscellaneous,” with fluctuating assessments, and sometimes a t

its present jumma, and no copy of the sunud was ever filed in the Collectorate,

although several times called upon to do so, and although, on the authority of this

sunud, the claimant’s possession was, somehow or other, allowed to continue, yet

it was clear that the Collectors had never looked into this matter. In the judgment

of the Court, the claimant appeared to have no claim to the salt mehals, either by

the Mahomedan law or the Regulations of Government. It was, therefore, ordered,

that claim be dismissed, with all the costs of the case against her.

After this decision had been made, it was considered that, as the case had been

pending previously to the Reg. 111. of 1828, i t was not within the jurisdiction of the

Special Commissioner, and in 1530 it was ordered that the cause should be returned

to the [473] Patna Provincial Court. This was accordingly done, and the Patna

Provincial Court assumed cognizance of the cause in the month of April, 1831. In

the year 1833, the Patna Provincial Court was abolished, and the suit was trans-

ferred to the Zillah Court of the District of Tirhoot, and the case was again con-

sidered in that Court. On the 27th of March, 1837, the Court of Tirhoot gave

judgment in the suit, and after observing that the sunuds were open to considerable

suspicion, proceeded in these terms :-“ Independent of which. the second sunucl

which the Plaintiff has produced has only the words ‘ Ba furzundan ’ (with descen-

dants) recorded in it, and has not the words ‘ nuslun bkd nuslin ’ and ‘ butnun

b&d butnin ’ (generation after generation), and by the word ‘ furzundan ’ agreeably

to the futwas (law opinions) of the law doctors, copies of which are on this file,

only direct descent, furzundan-i-sulubi, is meant. Hence, after the death of direct

descent of Ubd-ool-Ghunee and the extinction of such descent, this mocurrery became

resumable; but by the neglect of the Collector of that time it was not resumed; and

when the existing authority took the case into consideration it was resumed. Under

this circumstance, for the reasons above stated, this Mocurrerydar has no title for

its being relinquished; consequently, i t is ordered, that, the claim of the Plaintiff

be dismissed, with costs.”

974

‘U. NAVVAB JAFUR HOSSEIN KHAN [ 1 8 5 43 V MOORE IND. APP., 474

From this decree the claimant appealed to the Sudder Dewanny Adawlut at

CaIcutta, and filed a petition containing the grounds of her appeal.

The case came on before Mr. Abercrombie Dick, one of the Judges of the Sudder

Court, on the 29th of September, 1841, who recorded his opinion as follows:-“Xn

niy judgment, for various masons, the [&4] claim of the PlaintiE (Appellant)

appears a just one, and she is entitled to the restitution of the salt mehal in questiorr

and the recovery of the mesne profits of the same. 1st. The sunud of Nawab Ali

Wurdee Khan, adduced by the Plaintiff, appears perfectly free from all doubts and

suspicion; because, at the time the sunud in question was granted, Ali Wurdee Khan

was the Soobahdar of Soobah Behar. 2ndly. It i s quite clear that the Appellalrt

and her ancestors have by the means of this suiiud, and the second sunud granted By

Ahinud Khan Bahadur, regularly discharged the mocurrery Government revenue

since 1797. 3rdly. In 1804, a settlenient of the salt rnehal in dispute was effected by

Kistbundy (insta~ment~}, between the Govesnment and ~ ~ o c ~ r s e r y d a ~ , and. agree-

ably to which Kistbundy, the mocurrery revenue was discharged until the sesump-

tion. Hence, agreeably to the Rt?gulation which recognises the validity of the sunud

granted for land by Soobahdass, it is just and proper that the sunud, on which

there is no ground for suspicion, should be considered valid.” And the Court

ordered, that the judgment of the Zillah Court of Tirhoot should be reversed, and

the then Appe~lant put in possession of the rnehals in question, and receive the mesne

profits for the year 1225 Fusly (1817, A.D.).

The Appellants petitioned for a review of judgment, which the Court rejected.

The Appellants then appealed from this Decree, of the Sudder Court, Ltnd the Order

refusing a review of judgment to England. After the admission of the appeal, the

present Respondent, on the r e p r ~ e n t a t i o n that ~ u r k u t - o o n - ~ i s s a Begum was dead,

and that he was her grandson and heir, was admitted as Respondents in the appeal.

E4761 Mr. Wigram, Q.C., and Mr. Lloyd, Q.C. (with them Mr. Forsyth and Mr.

Maule), for the Bengal ~ o v e r n x ~ ~ e ~ ~ t in support of the appeal.

The argument turned chiefly upon the validity of the sunuds, and the suspicious

circumstances under which they were produced. The principal points urged by the

Appellants, were-

First. That the right claimed in the suit was a sayer right, consist in^ of a claim

to duties on saltpetre, and, that such rig& was absolutely abolished by Ben.

Regs. VIII. of 1793, and XXVII. of 1793, 130 that, even if the sunuds were genuine,

a grantee could have no title against the ~overnment’s right of sesumpt~ori.

Second. That the term “ b a furzundan,” in the sunud relied upon by the Re-

spondent, conferred no title on him, as those words created a limitation in tail

male, which terminated with the lineal heir of the original grantee; it being a11

estate tail male created by the Sovereign power run out. 1 MacI i~~~ i t en ‘ s Prins. of

Mah. Law, p. 331, The G ~ ~ r n ~ ~ ~ v, M a ~ a r ~ ~ a ~ fionmw Baboo K e w t Smgh (6

Ben. Sud. Dew. Rep. loo), ~ u ~ s ~ ~ ~ ~ ~ a ~ ~ a - 0 ~ ~ ~ v. Bof ~ k ? i ~ ~ - ~ - ~ ~ ~ a ~ i ~ (I Ben.

Sud. Dew. Rep. 107, note), Prof. Wilson’s Gloss~ry, voce “ Fuszund.”

Third, That it was a fiscal matter, which the ~ a ~ o ~ e d a n ~ o ~ ? e s n ~ ~ e n t s grun ed

and resumed at pleasure, and that as the Bengal Government succeeded to these

Sovereign powess, the right of resumption followed as a matter of power vested in

them on their assum~tion of the Govesnment. T h e Ens6 Z m % a ~ o ~ i ~ ~ ~ y v, Syud

AEy, referred to in vol. 2 Gleig‘s Life af Sir T. Xonro, pp. 316, 390.

[476] Fourth, That the Court below iniproperly received as evidence the sunuds

without the proof required by Ben. Rega. 11. of 1819, sec. 28, and XIV. of 1825,

aec. 3 (see also upon this point, 2 Archbold, p. 1323-32; Gibbs v. Pike (9 Mee. and

Wels. 351); Goslim v. Corry (8 Scott N.R. 25); Sorden v. Cowtolnl (3 Jur. 1027;

.Martin v. E’odger (5 Burr. 2631). And, as the weight to be given to fresh evidence,

Crease v. Bdrrett (1 Crom. Mee. and Ros. 919); Weab 8. Burge v. Callatmy (7 Price,

677) ; ~ h ~ ~ t e ~ ~ v. e~~~~~ (1 Bing. 339).

Mr. R. Palmer, Q.C., and Mr. Leith, for the Respondent, contended, that the

Nuuluk sayer rnehals were not liable to ~esu~np t ion by any of the Regulations relied

upon by the Appe~ lan t~ , a s those ~ ~ ~ u l a t i o n s had no application to sayer duties.

Baillie ‘‘ On the Land Tax of India,” p. xxiv. That, even i f they had such a sight

to resume, i t was barred by lapse of time, .@aJia Raja 23heera.j Euia BaJiuta.l, Chund

~ ~ a ~ r v. T?N B ~ ~ a l ~~~~~~~~~ (4 Moore’s Ind. App. Cases, 466), Baboo ~ ~ j n a t ~

975

v MOORE IND. APP., 477 BENGAL (GOVERNMENT OF)

.Yahoo Q. G o v e r ~ e ~ t (4 Ben. Sud.. Dew. Rep. 275), The Eagt Zitdicl G o w e g v. Odit-

clzmmt P a d (m8e [5 Moo. Ind. App.], p. 43), as the evidence proved that Burkut-oon-

Nissa Begum, and her ancestors, had not only a valid title L M ~ Iatimrary Mocurrerydar

of the Numuk sayer mehals under valid grants from the ~ a h o m e d a l ~ Government,

The Goiler.ement v. Huharcwjah Korzzimr Baboo Kerut Simgh. (6 Ben. Sud. Dew. Rep.

loo), Deodutt Rai v. OocEurumt Rai (4 Ben. Sud. Dew. Rep. 226), IEumgkd Chowdhry

v. Rarnnnuth Dass (2 Ben. Sua. Dew, Rep. 114, 6), but also a good posse~~sory title

of eighty years, and that the Government had recognised the validity of the sunuds.

[477] Judgment was reserved, and now delivered by

The Lord Justice Turner (July 5 , 1854).-The question in this case, is, whether

the late Respondent, Burkut-oon-Nissa Begum, the grandmother of the now Re-

spondent, Nawab Jafur Hossein Khan, was in her lifetime entitled to hold the Numuk

sayer melial of two Pergunnahs called Suresa and Kusma, within the District of

Tirhoot, in the Province of Behar, i n the Presidency of Bengal, at a fixed jumma of

Rs. 2063. Oa. lp. The Numuk sayer mehal is the revenue which, before the accession

of the East India Company to the Dewanny, was derived by the Native Governments

from the manufacture of saltpetre, and upon the Company’s accession to the Dewanny

they became entitled to this revenue, subject, of course, to any valid and effectual

disposition of it which might have been made by the Native Governments, in so f a r

as the Company might be bound by such dispositions. The mode in which this

revenue was collected before the Company’s accession to the Dewanny appears to

have been, that the Zemindars, on whose lands the saltpetre was produced, collected

i t from the Nooneeahs or manufacturers in kind, receiving from them about one-

half of the produce, of which the Zeniindars retained one-fourth, and delivered the

remaining three-fourths to the officers of the Government; and the same mode of

collection and division seems to have prevailed after the Company’s accession to the

Dewanny, except that the collection from the Nooneeahs, and the subsequent dis-

tribution of it, was made in money according to the actual current vaIue of the

saltpetre.

These facts appear from the report of the Numuk 14783 sayer mehals, which is to

be found in the papers, where it is stated that previously to the Company’s accession

to the Dewanny, the Zemindars of Tirhoot collected the saltpetre from the Nooneeahs

or manufacturers in kind, receiving, it would appear, about one-half of the produce;

of this they retained one-fourth, delivering the remaining three-fourths to the public

officers. Subsequently to the accession, the same system appears to have prevailed,

excepting that the Maliks, or proprietors, collected from the manufacturers, in

money, according to the actual current value of the saltpetre, and they in their turn

paid the proportion of public revenue into the treasury.

Both before and after the Company’s accession to the Dewanny, the Government

revenue consisted of three-fourths of the one-half which was received from the

Nooneeahs, the remaining one-fourth of what was so received being retained by the

Zemindars.

Such being the general outline of the rights of the Native Govern~eI~ t s , and

the Government of India, and of the Zemindars, in the saltpetre collected by the

Nooneeahs, it will be c~nvenient in the first place to consider how this case stands

upon the evidence, without reference to the sunuds, the authenticity of which was

so much discussed in the argument, and to some matters more immediately con-

nected with those documents.

It appears that the fixed jumma of Rs. 2063. Oa. lp . at which the Numuk sayer

mehal of the two Pergunnahs, Suresa and Kusma, is claimed to be held, i s composed

of two parts, namely, Rs. 1809 for Pergunnah, Suresa, and Rs. 251. Oa. lp. for

Pergunnah, Kusnia. It further appears, as to Pergunnah, Suresa, from the Wasil

baky papers (that is, papers signed by Government officers, E4791 stating the sums

collected and balances outstanding), the Kistbundy of 1803-4, and the Report of

1806, that from 1785-6 to 1803-4, three-fourths of the salt mehal of this Fergunnak

(and i t is observable that in the Report of 1806 these three-fourths a re called the

salt mehals) were held at a jumma of Rs. 1351, and were recorded at that jumma,

both in the Decennial Settlement book of 1789-90, and in the Quinquennial Settle-

ment of 1794-5, i n the name of Khwajah ~ a h o n ~ e d Sumee, and in the book, 1799-

976

2’. NAWAB JAFUR HOSSEIN KHAN [ 18 5 41 V MOORE IND. UP., 480

1800, were recorded in the name of Bebee Sifut, wife and heir of the Khwajah. This

appears by the Wasil baky accounts, the Kistbundy and the Report of 1805-6. And

this holding a t Rs. 1351 is carried back to the year 1780-1 by the Report of the 11th

of August, 1824, put in by the Appellants; and the same documents show, that in

1803-4, Rs. 458. 12a. were added to the jumma for the one-fourth resumed nlocurrery

of Baboo Surupjeet Sing, and that the salt mehals of Suresa were thenceforth held

at Rs. 1809. 12a. up to 1817, and were recorded in the name of Bebee Sifut until the

year 1806, and afterwards in the name of Burkut-oon-Nissa, her daughter and heir.

It is an

account, first, of the year 1785-6, in which three-fourths of the mehal jumma, is

stated to be Rs. 1351, and there is “ Received as follows, 1351 rupees,” that is, for

the year 1785-6. That continues again in the year 1786-7, which is described as

‘‘ 2 mehal jumma, 1351, annually,” and it is also described in the same manner in the

Wasil baky account for 1787-8. Then in the year 1803-4 the ‘ I Kistbundy, of salt

mehal of Pergunnah, Suresa” is described as “Three shares of Nizamut, 1351

rupees ” (I have an observation to make upon tha t [480] word “ Nizamut ” presently,

“ and fourth share 458 ; ” and the Report of 1806 states, that ‘‘ the salt inehals of

Pergunnah, Suresa are recorded in the Decennial Settlement book of 1119 Fusly

(A.D. 1789-go), and in the Quinquennial Settlement book of 1202 Fusly (A.D. 1794-5),

a t the jumma of 1351 rupees, in the name of Khwajah Mahomed Sumee; ” and in the

Book 1207 Fusly (A.. . 1799-MOO), the mehals in question a re set down at the same

jumma ‘‘ in the name of Bebee Sifut, wife of the Khwajah,” and then in 1211 Fusly

(A.D. 1804), “ in the name of Malik Mocurrerydar.” In the Report of the 11th of

August, 1824, there is a statement of the jumma at which the Pergunnah of Suresa

has been held for periods long antecedent to those to which we are referring. And

in that report the, jumma of Rs. 1351 commences in the year 1780-81, carrying it

back through a few years beyond the period to which the Respondent’s evidence

extended.

The Same documents show that in the year 1803-4, Rs. 458. 12a. were added to

the jumma for the one-fourth share of the resumed mocurrery of Baboo Surupjeet

Sing. I n the settlement book of 1807

Fusly, about Pergunnah, Kusma, it is stated in that Report that “ the Government

revenue of the salt mehals of this Pergunnah in the Wasil baky of 1213 Fusly is

inserted at a jumma of Rs. 1809. 12a.” Then it appears upon the evidence that the

salt mehals of Suresa were thenceforth (that is, from 1803-4) held a t Rs. 1809. 12a.

up to 1819, and were recorded in the name of Bebee Sifut until the year 1806, and

afterwards in the name of Burkut-oon-Nissa, her daughter and heir. This is what

appears in the documents, independently of the sunuds, in reference to Pergunnah,

Suresa.

[481] As to Pergunnah, Kusma, the case as it appears upon the documents above

referred to, is somewhat different. The fixed jumma of Rs. 254. Oa. lp. for this

Pergunnah does not appear upon the documents put in by the Respondent a t any

time before the year 1804, when it is found in the Kistbundy of the 21st of January,

in that year, in connection with an allowance to Rajah Mudho Sing, and a charge for

impressing the seal, amounting together to Rs. 38, making the total payment for

this Pergunnah, of Rs. 292. Oa. lp., and then the Government demands Rs. 254. lp .

allowance to Rajah Mudho Sing, a t 2 per cent.; Sud-doee Rs. 26, Molirana, for

impressing the seal, Rs. 12, making Rs. 38 additional, and bringing it to Rs. 292 lp.,

which is stated at the head of the document as the amount of the Kistbundy. The

jumma of RP. 254. O s . lp. is however carried back for two or three years; the same

thing happened with respect to Pergunnah, Kusma as happened with respect to

Pergunnah, Suresa. The jumma, which is contended to be the fixed jumma, is

carried back by the Report of 1824, a few years before the period to which the Re-

spondent’s evidence had carried it, and the payment of it was continued to the pear

1817.

It further appears from another Report of the 25th of May, 1820, that on the 2nd

of July, 1806, Pergunnahs were issued for ejecting the name of Bebee Sifut from

the Records, and inserting in lieu thereof the name of Burkut-oon-Nissa, and for

giving her the receipt and account as mocurrery holder. In the preceding passage

it is stated, “ In accordance to which two Pergunnahs were written, dated the 2nd of

977

This is in fact the account which appears in the papers in the suit.

That appears from the Report of 1806.

v MOORE IND. UP., ui BENGAL (GOVERNMENT OF)

July, 1806, one in the name of Mirza Furzund Uli, Tahsilder of Pergunnah, Suresa,

directing that agreeably to the petition of Rampurshad, Mokhtar of Mus-[482]-

Humat Bebee Burkut-oon-Nissa Beguni, daughter of Bebee Sifut, wife of Khwajah

Mahomed Suniee, deceased, the name of Bebee Sifut should he erased from the

Records, and in lieu thereof, the name of Mussumat Burkut-oon-Nissa Begum, heir

of Bebee Sifut, deceased, be recorded, and to receive the revenue from heir ; ” and in

addition to what has been above mentioned, there is a decree of 1812, in a suit

brought by Burkut-can-Nissa, against one of the Nooneeahs, in which it is stated,

that from the documents filed in the case it appeared that the mocurrery istimrary

(perpetual salt mehal) belonged of old to the Plaintiff, Burkut-oon-Nissa, as her

inheritance.

There is also a very important document, being a proceeding of the Collector

of Tirhoot, dated the 30th of June, 1813, in which, upon a tender being made to

farm some salt mehals, including those of Suresa and Kusnia, the Collector refused

the tender, upon the ground, amongst others, that the salt mehals of Suresa and

Kusnia were the Yocurrery istimrary tenure, of which the jumma, apar t from

farming engagement, was in the name of Burkut-oon-Nissa, daughter of Khwajali

Mahomed Sumee ; and there appears to have been a proposal by other parties f o r

these mehals, a t an increased jumnia ; and the statement is, “ As the petitioners have

presented a tender for the farm of the salt mehals, a t the jumma of Rs. 30,500, and

the salt mehals of Pergunnahs, Suresa and Euama are the mocurrery istimrary

tenure, of which the jumma, apart from Theekadaree (farming engagement), is ill

the name of Burkut-oon-Nissa Begurn, daughter of Khwajah Mahomed Sumee, de-

ceased.” The decision come to being, that the tender of the farm, therefore, caniiot

be accepted.

This proceeding of the Collector appears to have [483] been adopted by the

Government, as will be found hy the report on the Numuk sayer mehal, under the

date of the 27th of October, 1815. This is a very elaborate Report upon the subject

of the Numuk sayer mehal. It refers to another report, dated the 17th and 18th

of August, 1813, in which there is this statement: “ T h e Collector having again

submitted reports on the subject of offers made to engage for the mehals, and having

at the same time suggested that the balances should be recovered from officers

attached to the Commercial Presidency a t Patna, who, there was reason to believe,

had been cqpcerned clandestinely in the late fa rm; the Board furnished him with

instructions to the following purport, with respect to the tender made by Rogoorani

Bhooder, etc. ; the Board were disposed to accept their offers (exclusive, however,

of the mehal situated in the mocurrery of Burkut-oon-Nissa and Setaram, which was

included in their offer.” So that the Government appears to have adopted the

report of the Collector of Tirhoot, of June, 1813.

It is to be observed, however, that this same Report of the 27th of October, 1815,

notices a Report of a former Collector, of the 2nd of May, 1801, which stated, that

the salt mehals were farmed in Pergunnahs, Suresa and Kusma, distinguishing those

Pergunnahs from Tonkee, in which the mehal was stated to be claimed as mocurrery.

And, in October, 1815, it is stated in the report of the Collector that “ it was let in

fa rm in the fdlowing year, that i t was also farmed in Pergunnahs, Suresa and

Kusma; in Tonkee it was claimed as mocurrery;” making a distinction, therefore,

between i t being farmed in Suresa and Kusma, and its being claimed as niocurrery

in Tonkee.

It is to be observed, also, that the Report of the [484’J 5th of May, 1820, states,

that in the Settlement book of 1211 Fusly (A.D. 1803-4), a fourth share of the salt

mehal, the resumption of Baboo Surupjeet Sing, is recorded as the khbs tenure, a t

a jumma of Rs. 458. l2a.

It is further to be remarked that there is not in evidence any Wasil baby account

of that year or the following year, and that the report of 1824, which purports to

be founded on the Pareenah and Anianat dufter papers, shows the jumma of the salt

mehals, both of Suresa and Kusma, to have been fluctuating as to Suresa up to the

year 1780, and as to Kusma up to the year 1795.

Again, it is to be remarked, that in the Settlement books of 1789-90 and 1799-

1800, Bebee Sifut is described as farmer of the Numuk sayer mehal. The description

in the Settlement books is, ‘‘ Farmer, wife of Khwajah Mahonied Sumee Mocurrery-

978

v. NGWAB JAFUR HOSSEIN KHAN [1854] v MOORE IND. APP., 4135

dar.” And she is also mentioned as Theekh-daree. and not Malik, i n the proposed

Theekh-daree jurnma of 1799.

I n the argument on the par t of the Respondent, some reliance was placed upoii

the alleged discrepancy between the Collector’s Reports of 1820 and 1824; the

Report of 1820 stating, that there had been an increase in the jumma, and the latter

par t of that Report stating, that “ no increase or decrease ever appears to have

taken place in the mocurrery jumma in question, and in the files in question, copy

of the sunud does not appear.” But the difference between these Reports does not

appear to their Lordships to be entitled to much weight, for the lieport of 1820 i,

based on the records of the Collector’s office, and does not refer to the Airiaiiat dufter

papers. And, besides, it seems to be confined to the period subsequent t u 1789, and

not to have extended back to the earlier periods to which the Report of 1834 is ad-

dressed. [4m] It seems probable that there would be no accounts in the Collectw’r

office of a date prior to 1789.

Their Lordships feel that it would be difficult, upon the materials to which they

have already adverted, to arrive at any s a t i a f a c ~ r y conclusion upon the questioir

before them. On the one hand, the proceeding of the Collector in 1813, adopted,

as it would seem, by the Government, affords very cogent evidence that the salt

mehals of the80 Pergunnahs were always held at a fixed jumma. And the other

documents fix the amount of the jumma a t which they were held for a cotisiderable

period. But, on the other hand, the Report of 1824 shows the jumma of these

mehals to have been fluctuating in more early times. It was, indeed, urged on the

part of the Respondent that no credit ought to be given to the Report of I824 ; that

its discrepancy from the Report of 1820 of itself disentitles i t to credit; and that

it is, moreover, a document compiled in the office of Governnient from materialb which

have not been authenticated or even produced in the cause. It has been already

observed, that but little weight can, in the opinion of their Lordships, be attached

to the discrepancy between the Reports of 1820 and 1824. And, before yielding to

the Respondent’s other objections to the Report of 1824, i t is material to consider

the nature and history of the documents on which that Report purports to be founded,

and how the statements contained in it a re affected by the other evidence in t h e

cause.

This Beport is the report of the Record Keepers of the Collectorate of Tirhoot,

and it purports to contain a detailed account, taken from the Amanat dufter papers

of the jumina of these mehals, as to Suresa, from 1736, the date of the earliest of

the sunuds, to [4%] which we shall presently refer ; and as to Kusnia from 1762,

an account which is also to be found in the answer of the Government, and in the

letter of the Collector of Tirhoot to the officiating Commissioner of Revenue, dated

the 16th of June, 1831.

Now the Amanat dufter was an office for the deposit of revenue records during

the Mahomedan rule, and the Amanat dufter records are referred to iri the Report

of 1813, on the affairs of India (the 5th Report). These records were, as their Lord-

ships have aecertained by inquiries which they have caused to be made, transferred

to the officer of the Br;ard of Revenue at Calcutta, and the Report of 1824 speaks of

the Amanat dufter papers, and also of the Pareenah papers (other old records), to

which it refers as having been received lrom the Board. There is every reason.

therefore, to believe, that these papers were in the office in which the Report of 1824

was compiled, and were derived from the proper custody. But still the resultfi

derived from them may not have been correctly deduced. And with a view to this

question i t is material to look a t the other evidence in the cause.

Upon examining, then, the other evidence, i t appears, that all documents which

the Respondent has produced, whether Wasil baky papers (that is, papers b iped by

Government officers, stating the sums collected and balances outstanding), or Iiist-

bundies given by the parties to Government, so fa r as they go back, agree with the

details taken from the Amanat dufter papers. But the Respondent has produced

evidence as to Suresa only so f a r back as 1785, and as to Kusma only so far back as

1803-4. As f a r as the evidence goes back, there is no disagreement between the

Wasit baky and Kistbundy documents on the one hand, and Amanat dufter papers OR

the other. [487] It is in the more early period to which the WssiI baky and Kist-

979

v MOORE IND. APP., 488 BENGAL (GOVERNMENT OF)

bundy papers do riot extend, that the difference in the amount of the juinma is to be

found, and as to that period the Respondent has produced no evidence. The im-

portance of producing such evidence cannot have been overlooked by the Respondent,

for the statements of the Report are a t variance with the existence of the fixed

jumnia contended for ; and the opportunity of producing the evidence was not

wanting ; for the Report of 1824 was filed in Court, in the month of August in that

year. And long after that period, when the cause was heard before the Zillah Judge,

in 1837, a great mass of evidence was produced on the par t of the Respondent.

In this state of circumstances, their Lordships feel that it is impossible to dis-

regard the Report of 1824, and that the most which could be done with reference to

that Report would be, to send the case back for further inquiry, if, upon the whole

evidence taken together, no satisfactory conclusion could be arrived at.

This brings us to the consideration of the sunuds, and the matters more im-

mediately connected with them. It appears, from the year 1816, the subject of the

salt mehals was much considered by the Government of India ; end the inquiries as

to the salt niehals of these Pergunnahs were set on foot by Mr. Deane, the Com-

missioner of Behar and Benares. Some documents mere produced on the par t of

Burkut-oon-Nissa upon the occasion of this inquiry, and it was contended on the

part of the Respondent that both the sunudd in question were, or, a t all events, that

one of them was, a t this time produced to Mr. Deane. The letter of the 27th of

February, 1817, was relied upon [488] in proof of such production. It is a letter

addressed by the acting Secretary of Tirhoot to Mr. Kennedy, the Superintendent

of the Numuk sayer mehal, and it is in these terms : ‘‘ Sir, The Commissioner having

had before him the case of the Numuk sayer niocurrery in Pergunnahs, Suresa and

Kusrna, and also in Nagurbusee in Zillah, Tirhoot, and being of opinion, as we11

from the documents produced by Noor-ool-Husun Khan, the heir of Burkut-oon-Nissa

Begum, in whose name the mocurrery is held, as from the nature of the mehal itself,

that the original mocurrery sunud said to have been granted to Ubd-ool-Ghunee, if

authentic, was not intended to be perpetual, and cannot be binding on Government,

and that the continuance of the mehal to his successors was never confirmed by or

notified to Government, and that it ought consequently to have been resumed on the

death of the first incunibent ; I am directed to desire that you will resume the Nurnuk

sayer comprehended in the said mocurrery, and proceed to make a settlement

thereof, in conformity to the general rules with which you were furnished on the

30th of December last in regard to the Numuk sayer.”

It wab contended on the par t of the Respondent, that it appeared from that

document that either both the sunuds, or one of them, were or was produced. But

when the document comes to be examined, it is found that the document was merely

to refer to an original mocurrery sunud as having been said to have been granted

t o Ubd-ool-Ghunee. The expression is, that he is of opinion, “ as well from the

documents produced as from the nature of the mehal itself, that the original

inocurrery sunud said to have been granted to libd-ool-Ghunee, if authentic, was

iiot intended to be E4891 perpetual.” It refers, therefore, to an allegation having

been made of the existence of such a sunud, and not to any such sunud having been

produced. And the examination of Burkut-oon-Nissa’s Vakeel proves that no such

\unud was then produced. That examination is as follows: “When, according to

Section 25 , Regulation XIX., 1793, a proclamation was issued calling for sunuds,

why did you not then produce your alleged mocurrery sunud on which you found your

claim?” The answer is, “ There was no notice or proclamation issued in the name

of my client ; consequently, the sunud %as not produced ;” showing, therefore, that

a t that time the sunud was not produced.

1Jnder these circumstances, the Government, in February, 1817, resumed the

salt niehals of these Pergunnahs. And here the matter appears to hare rested until

July in that year, when an instrument was registered purporting to be a sunud of

the year 1745, under the seal of Zyn-ood-deen Ahmud Khan. This instrument is

in these terms :-“ Mootsuddies present and future, of Pergunnah, Suresa Surkar

Hajeepoor, appendant to Soobab Behar. Be it known to you, it is come to my

knowledge that the salt villages of Pergunnah aforenamed, bearing assessment of

Rs. 1809 annually, agreeably to sunud of former Nazims, is an istimrary mocurrery

grant (or a grant in perpetuity, on a fixed jumma) in the name of Khwajah Ubd-ool-

980

V. NAWAB JAFUR HOSSEIN KHAN [1854] V.MOORE IND. APP., 490

Ghunee, with descendants ; consequently, the estate in question, bearing assessment

as aforenamed, has been continued and confirmed as before, from the 1150 Fusly,

to the Khwajah aforenamed, and descendants. You are hereby desired, that on

account of abwab (cesses), behriat and furmayushat (presents or [490] orders),

i-purgunatee, etc., you will make no demand whatever, or cause any interference

with and in the estate in question, so that the Khwajah aforenamed, by paying the

fixed assessment to Government, might enjoy the mocurrery in questioli.”

It is to be observed, therefore, that this purports to be a sunud confined to

Suresa entirely, and to be a confirmation of a previous grant of the salt mehal of

Suresa, in favour of Khwajah Ubd-ool-Ghiinee, and his descendants, a t a perpetual

fixed jumma of Rs. 1809. The

registration of the sunud of 1745 was followed by a petition presented in March,

1818, for a reconsideration of the case. But nothing appears to have been done

upon this petition; and the next step in these proceedings appears to have been

that of the 3rd of September, 1818, when the plaint in the suit was filed by Burkut-

oon-Nissa Begum, for the recovery of the salt mehals of these Pergunnahs, with mesne

profits received by the Government.

Up to this time there is no trace upon the evidence of any sunud having been

brought forward, except the alleged sunud of 1745. It is true, indeed, as was

pointed out on the par t of the Respondent, that the plaint speaks of “ sunuds.” The

language of the plaint is, “ My client’s great grandfather came from Cashinere to

this country, and established a saltpetre factory, and, under considerable outlay,

established and obtained salt mehals in the Pergunnahs aforenamed, and obtained

from the former Nazims, istimrary mocurrery sunuds for the same, as a grant to

himself and posterity.” No doubt, therefore, the plaint refers to one of the sunuds j

but i t is to be observed, that the plaint does not specify the sunuds, and i t is clear

that [491] if the Respondent had any title, it could be by sunud only; and there

must be more than one sunud, as the alleged sunud, which had been registered,

extended only to Suresa, and was, moreover, a sunud of confirmation only. It does

not appear, therefore, that any reliance can justly be placed upon this expression

in the plaint.

But in

March, 1819, the alleged sunud of 1745 was produced to the Officer of salt mehals,

and this was followed by a proposal for compromise in May, 1819. I do not think

i t necessary to go through the document. It appears that there was this proposal

of compromise. This proposal was communicated to the Board of Revenue by a

letter dated the 16th of July, and was rejected by them by a letter of the 10th of

August, 1819. These letters are of some importance, as a good deal was said upon

the subject of them in the argument.

The letter of the 16th of July, 1819, contains this paragraph:--“ I have the

honour, likewise, to forward to your Board herewith a copy of the plaint filed by

the Mocurrerydar in the Patna Court, upon an examination of which, together with

that of the original sunud, which accompanied my letter of the 28th of March, i t

will be for your Board to decide whether it may not be more advantageous to the

interests of Government to relinquish the Pergunnahs in question on the ternis

offered, than to run the risk of the Plaintiffs obtaining a decree in Court, which

would unquestionably be followed by a demand of restitution of all that I have

hitherto collected, and perhaps by an action for damages in having attached the

mehal unjustly. The question of right on their par t rests, I [492] conceive, entirely

on the validity of the sunud, of which I have already expressed my doubts: for it

ii, a circumstance certainly liable to create suspicion, that a t the time Mr. Dearle

called on the Begum’s Mokhtar (Meer, Juafur Shah) to produce any doculllent he

might possess which would tend to support or establish her claims, the sunud, tlle

most important dccument he could bring forward, was not produced, and stated by

him not to be found; yet from the date of registry affixed to it, compared with tile

date of the Commissioner’s order to me, on the subject of the resumption, your

Board will perceive that there is not a greater difference than two or three 111onth8.”

Then the letter of the 10th of August, 1819, is in these terms:--“ The Numuk

sayer mehal of Pergunnahs, Suresa, Kusma, and Nagurbuses was formerly held

under a mocurrery and istimrary sunud by Ubd-ool-Ghunee, from whom it descended

981

But no such previous grant was then registered.

The suit appears to have lingered for some time after its institution.

V MOORE IND. APP., 493

to th'e late Burkut-oon-Nissa Begum; after whose death, in consequence of no valid

title having been produced by her heir, the mehal was ordered to be resumed by the

late Conimissioner ; but since that time the heir has produced a document purport-

ing to be a sunud, under the seal of Zyn-ood-deen Ahmud Khan, which confirms to

Ubd-ool-Ghunee, ' ba furzundan,' a former mocurrery and istimrary grant said to

have been made to the above person. There is nothing in the sunud itself which

leads one to suspect i ta being a forgery ; but its not having been produced with the

documents brought forward when the late Commissioner called for the titles of

the heir of the late Burkut-oon-Nissa Begum, affords strong grounds for suspecting

the validity of it." Then he goes on to state other grounds [493] which might lead

to suspicion of the validity of the document.

These letters were relied on by the Respondent as evidence that not only the

alleged suiiud of 1745, but also the alleged sunud of 1735, had then been produced,

and they were relied upon also upon this ground, that the letter of the 10th of

August, 1819, refers not only to the Numuk sayer mehal of Suresa, but also to that

of Kusrna, which is not mentioned in the alleged sunud of 1745. But it is observable,

that the letter of the 10th of August, 1819, is i n answer to the letter of the 16th of

July of that year, which clearly refers only to the sunud of 1745, and that the

letter of the 10th of August, when it refers to what had been produced, refers to

that sunud only. It says, " Since that time the heir has produced a document pur-

porting to be a sunud under the seal of Zyn-ood-deen Ahniud Khan." which clearly

is the sunud of 1745. And the reasonable interpretation of the par t of that letter

which refers to Kusina seems, therefore, to be, either that Kusma was

considered to be included in Suresa, or that the passage referring to

Kusrna had reference to the claim which had been made, and not t o the

evidence whicli had been adduced in support of it. The question of the validity of

the sunud must indeed a t this time have been deemed to be of little importance, as

the Goveinment had been advised that the grant produced, whatever it may have

been, had determined.

The

Government put in their answer, by which they insisted, amongst other things, that

the sunud produced (meaning, as clearly appears by the context, the sunud of 1745)

coulcl not be [494] relied on. The Respondent replied, and, in the replication, un-

doubtedly referred to some sunud different from that of 1745, and containing more

estensive words of inheritance. But still there was no mention in terms of the

suriud of 1735. When, however, the cause was a t issue, the first document produced

on the part of the Respondent was an instrument purporting to be a sunud of the

year 1733, under the seal of Mahomed Ali Wurdee Khan.

In the Respor-dent's case we have that sunud, and it is in these terms-" To tlie

officers present, and future of Pergunnahs, Suresa and Kusma, Surkar, Hajeepoor,

Muyaf, Sooba, Behar, be it known. As the honest Khwajah Ubd-ool-Ghunee has

established salt mehals in the Pergunnahs aforementioned, and has brought Qulumee

Sliorah (saltpetre) into use, and has petitioned that bome arrangement niay be made,

so that he might pay the yearly revenues to Gorernment, and enjoy the profits hini-

self, and his posterity after him, generation after generation, and which arrange-

nieiit allould be free from, and not susceptible to, any change or alteration in

future : adverting, therefore, to his right and to his good management, the mehal in

question has been settled at an equal and fixed juinma of Rs. 2063 lp., in the name

of Kliwajnli L'bd-ool-Ghunee as a mocurrery istimrary, fixed (permanent) tenure,

to continue to him and to his children and dependents (relatives) in perpetuity, with-

out any specification of name or division, so that himself and his children and

dependents (relatives), generation after generation, might possess and enjoy the

mehal in question to their full and entire satisfaction, and pay yearly the mocurrery

juniiiia into the Government Treasury, and enjoy the profits. The Khwajah [496]

aforeriained, and his children and dependents (relatives), being considered as

fixed Mocurrery Istimrarydar, should suffer no change and alteration in the tenure,

and also be subject to no increase or any other demand for cesses, requisitions (as

presents), and behree (charge for any requisite expenses, etc.)."

It may as well be observed here, that the Government had been advised, that the

sunud of 1745 did not contain words of inheritance sufficiently ample to carry the

property to the descendants of Khw ajah Ubd-ool-Ghunee, and that that circumstance

982

BENGAL (GOVERNMENT OF)

The proposal for conipromise having been rejected, the suit proceeded.

U. NAWAB JAFUR HOSSEIN KHAN Cl8541 V IKOORE IM). APP., aft6

had been communicated in the meantime to the Hespoiident, and that c o i ~ ~ ~ u n i c a t i o n

had been made anterior to the production of this sunud of 1735.

Tha:: document being put in, 'there can be no doubt that this instrunient, if

genuine, was sufficient to entitle Hurkut-oon-Nissa to the salt niehal of these Per-

gunnahs. But this cause was first tried before

a Special Commissioner, and he discredited both this alleged sunud and tlie alleged

sunud of 1745. And, it having afterwards appeared that the Special Commissioner

had no jurisdiction, the cause was again tried before the Judge of the Patna Court,

who arrived at the Ranie conclusion as to the authenticity of these alleged sunuds.

Upon an appeal from this last decree, however, the Judges of the Sudder Court have

held these alleged sunuds to be valid, and we have now to determine between these

conflicting opinions.

That these alleged sunuds have been brought forward under circumstances of

very grave suspicion, admits of no question. But to reverse the Decree of a Court

upon the ground of suspicion mcrely, would be going much too far. There are,

however, facts in [a61 this case which appear to their Lordships to be irreboncile-

able with the authenticity of these sunuds. As to Suresa, the alleged perpetual

jumma is, according to the sunud of 1745, Rs. 1809 ; but, according to tlre Respon-

dent's own evidence (without reference to the doubt thrown upon it by the Report of

1824), the jumma of the three-fourths up to 18034 was Rs. 1351; and in 1803,

Rs. 458 12a. were added for the one-fourth resumed inocurrerg of Baboo Surupjeet

Sing, thus making the total jumma to amount to Rs. 1809 12a. Tliere i s no

explanation of this difference of 1 2 anas in the amount of the junima. But there

are still more important considerations affecting this resumed one-fourth. The

Respondent's position is, that this one-fourth was one-fourth of the Government

revenue granted out to Baboo Surupjeet Sing for life. But the grant to Baboo

Surupjeet Sing was, or appears to have been, a t least, in the year 1763-4. And if

there had been a previous grant in 1735 or 1745 of the entire revenue, at Rs. 1809,

how could the onefourth granted in 1763-4 amount to Rs. 458 12a., the

onofourth of Rs. 1,809 being only Rs. 452 4n.l It thus appears,

that this resumed one-fourth was not one-fourth of the Governnient share, and this

is confirnied by the Kistbundy of 1804, in which the fourth is mentioned as a fourth

share, in contradistinction to the three shares of Nizamut. Again, in the Amanat

dufter papers relating to the fourth share of Baboo Doorg Begah Sing and Baboo

Surupjeet Sing, the mocurrery jumma of the salt mehal of the fourth is set down

at Rs. 125 only, and a subsequent sunud, in which it was recorded a t Rs. 435, was set

aside, as not corresponding with these Amanat dufter papers. And it would appear,

there-[497]-fore that if the jumma of Bs. 458 was paid to Baboo Surupjeet Sing,

of which, however, no evidenc6 has been given on the part of the Respondent, it

must have been so paid in increase of the jumma a t which he held, and by an

arrangement with him quite independent of the jumma which he paid. As to

Pergunnah, Xusma, too, the payment of the revenue to t.he Government appears to

have been commenced only upon the resumption from Rajah Raj Bullub, in 1803.

And if there had been a previous grant of the salt mehal of this Pergunnah, at

Rs. 254 Oa. Ip., how is it to be accounted for that in the Kistbundy of 1803, the

Respondent submitted to be charged with the allowance of Rs. 26, in favour of

Rajah Madho Sing, and also with other charges which are contained in that Kist-

bundy 1

These, and the other facts of this case, lead their Lordships to the conclusion,

that the sunuds of 1735 and 1746 are not authentic. They are tlie documents on

which the Respondent has alleged the istirnrary tenure to be founded, and having

alleged it to rest upon them, and having failed to make good that allegation, he

inust abide by the failure, and is not, in our opinion, entitled to resort to any p r e

sumption which possibly might otherwise have been made, although it would be

difficult to raise a presumption on a question of this nature, the question being,

not whether the mehal is rent free, but whether a rent admitted to be due has been

pernianently fired.

Having arrived at this conclusion as to the validity of the sunuds, it is un-

necessary for their Lordships to give any opinion upon the questions which were

discussed in argument, whether the Numuk sayer mehals has been wholly abolished,

and whether the [498] Government have, in any event, the right to resume by virtue

983

That has not been denied at the bar.

V NOORE IND. APP,, 499

of their Sovereign power. Tfieir 1,ordships give no opinion upon those points.

The Judges of the Sudder Court appear, however, to have considered that the

question in this case wa8 set a t rest by the Decennial Settlement, that tlie settlement

then entered into with the ancestor of the Respondent became permanent and

perpetual, under Reg. VIII. of 1793. But that Regulation seems to their Lordships

to relate to the land revenue, and to settlements concluded with the actual pro-

prietors of the soil, and to have no relation to the Numuk sayer mebals, or any settle-

ment made in respect of it with persons who were not proprietors of the soil, and

neither the late nor the present Respondent appears to have been proprietor of the

soil. Our opinion, therefore, differs from that of the Judges of the Sudder Court

upon this point.

It has not escaped their Lordships’ attention, that in one of the precedents cited

in this case, it was intimated that the word ‘‘ Mocurrery ’’ may import perpetuity.

But their Lordships apprehend that, although it may have that import, this is not

the necessary meaning of the word, and they are satisfied that, as used in the docu-

ments in this case, it has not that import.

Upon these grounds their Lordships’ recom~nendation to Her Majesty will be, to

reverse the Decree of the Sudder Court, and the subsequent Orders founded upon

it, and to restore the decision of the Patna Court, dismissing the Respondent’s claim,

with costs. But their Lordships think that the case has been involved in so much

obscurity by the proceedings on tlie part of the Government and its oficers, that

tliere was enough to justify the appeal from the Decree of the Patna Court, and that

no costs ought to be given [499J subsequent to that Decree. I am not sure whether

the costs have not been paid. and, if so, they must be refunded and set right.

NAWAB OF SURAT (TiVRE) [1854]

Z iV RE THE NAWAB OF SUBAT * [June 30, 1S541.

0% petitw7z. from Bornbay.

An Act of the Legislature of India, No. 18 of 1848, empowered the Governor in

Council of Bombay to administer the private estate of the late Nawab of

Surat, and it was, by section 2, enacted, (‘ that no act of the said Governor

of Bombay in Ccuncil in respect of the administration to, and distribution

of, such property, from the date of the death of the said Nawab, should be

liable to be questioned in any Court of Law or Equity.” No provision was

made for an appeal from the Governor’s decision. In pursuance of the power

conferred by this Act, the Government agent a t Surat, to whom the matter

was referred, made an award distributing the estate in certain shares, among

the heirs of the deceased, which award was confirmed by the Governor in

Council.

Upon an application by a claimant diNsatis~ed with the award to the Judicial

~ o ~ ~ ~ i ~ t e e , for leav to appeal from the Governor in Council’s c o n ~ r m a t ~ o i ~

of the award: Held, that the award was not such a judicial act as to come

within the operation of pec. 3 of the Statute, 3rd and 4th Will. IV., c. 41, or

the 7th and 8th Vict., c. 69, and could not be entertained by the Judicial

Committee without a special reference to them by the Crown, under section

4 of the Statute, 3rd and 4th Will. IV., c. 41.

This was an application for leave to appeal against an adjudication of the

Governor of Bombay, fouiided on an award made under an Act of the Legislative

Council of India, No. 18 of 1848, for the administrati~n of the private estate of the

late Nawab of Surat, which arose under the following circumstances :-The Peti-

tioners were Meer Jafur Alee, the son-in-law of Meer Ufzooloddeen Khan, the late

Nawah of Surat, and father of Zeeoon-nissa Larlee Begum, and Ruheen-ioon-nissa

- _lll ___ - ~ ___ __.__---.- ~ ._______________ .__I__-

* Present : Meinberti of the Judicial Committee,-The Lord Justice Knight Bruce,

the Right Hon. Sir Edward Ryan, lint., the Lord Justice Turner, the Right Hon.

Sir John Patteson, Knt., and the Right Hon. Sir John Dodson, Knt.

984