Banerji and Aikman, JJ.
1. This is a plaintiffs' second appeal. The following are the facts of the case:--One Bakhshish Ali was the owner of a taluqa called Taluqa Fatuha. On the 5th of December 1843 he executed a document called a tamliknama, in favour of his daughter Musammat Kahroat-un-nissa, by which he assigned to her lands in two villages, namely, chak Sikandar and Mugarsan. In this document he covenanted that he and his heirs would pay the land revenue due on the estate assigned to his daughter along with the land revenue for their own estate. The document went on to provide that if at any time his heirs, or whoever might be in possession of the rest of his state, should demand from Rahmat-un-nissa, or the person in possession of the lands assigned to her, the revenue assessed on those lands, then Rahmat-un-nissa arjd her heirs would be entitled to claim and take possession of the legal share in his estate to which she would be entitled under the Muhammadan law of inheritance.
2. The suit out of which this appeal arises was brought by one Mussammat Izzat-un-nissa, who had acquired a portion of the land bestowed by Bakhshish Ali on Mussammat Rahmat-un-nissa, in the village Mugarsan. Part of this land the plaintiff had acquired by private sale on the 20th of September 1872, and another portion she had purchased at auction on the 22nd of February 1875. The persons representing the other heirs of Bakhshish Ali having successfully asserted against the plaintiff Musammat Izzat-un-nissa a right to recover from her land revenue payable On the portion of Musammat Rahmat-un-nissa's property which she (plaintiff) had acquired, the plaintiff brought this suit, claiming, first, a declaration that the defendants were bound by the tamliknama and liable to pay the land revenue assessed on the property in the possession of the plaintiff, and that if the amount of the revenue should be recovered by Government from the plaintiff, that the defendants were liable by reason of the tamliknama to repay the amount to the plaintiff; secondly, in the event of the above declaration being refused, the plaintiff claimed a decree for the amount of revenue which the defendants had recovered from her; and, thirdly, failing the above reliefs, the plaintiff claimed to be entitled to recover possession out of the share of Bakhshish Ali's estate which would have fallen to Rabmat-un-nissa by the Muhammadan law of inheritance of a portion bearing the same relation to the whole of Rahmat-un-nissa's share as the land which the plaintiff had acquired bore to the whole of the land bestowed on Musammat Rahmat-un-nissa. The Court of First Instance decreed the second of the alternative reliefs set forth in the plaint. On appeal the learned Subordinate Judge dismissed the suit of the plaintiff on two grounds: first, that under the tamliknama only the heirs of Rahmat-un-nissa were entitled to hold revenue-free, and that the plaintiff, not being an heir, but an assign, was not entitled to enforce the condition of the tamliknama; the second was that the grant by Bakhshish Ali to his daughter Musammat Rahmat-un-nissa was a grant in contravention of the provisions of Section 10 of Regulation XIX of 1793, and that consequently the condition that she should hold it free from the payment of revenue was one which could not be enforced.
3. The plaintiff died during the pendency of the suit and is now represented here by her heirs. On their behalf three contentions are put forward. The first is, that the grant by Bakhshish Ali is not a grant of the nature prohibited by Section 10 of Regulation XIX of 1793. We may observe that the Regulation applicable to the question before us is really Regulation XXXI of 1803, which in Section 6 re-enacts the provisions of Section 10 of Regulation XIX of 1793. In support of this plea much ingenious argument was addressed to us. We are of opinion, however, that it cannot prevail. There is no doubt the grant was of a nature which was declared in the Regulations referred to to be null and void. It was argued that as no power save Government can free land from its responsibility to pay Government revenue, and that, whatever the owner of the land may purport to do, Government can always in the last resort enforce its demand by having recourse to the land itself, the grant in question was not one of the kind at which the Regulations were aimed. The preamble to the regulations shows no doubt that the main object of the Government was the security of the land revenue which was considered to be imperiled by such grants. But that this was not the only object the Government had in view is clear from a referenoe to other legislation which took place about the same time. Regulation XLIV of 1793, for instance, was intended to prevent the grant by zamindars of leases and farms for long terms or in perpetuity at a reduced rent. The preamble states that such engagements, if held valid, would leave it in the power of weak, improvident or ill-disposed proprietors to tender their property of little or no value to their heirs. Similarly, Section 81 of Act No. XIX of 1873 provides that grants of land which the grantor has expressly agreed not to resume shall be valid as against him, but not as against his representatives after his death. This shows that the intention of the Legislature was not merely to secure the public revenue, but to protect the heirs of zamindars from the effects of their improvidence. We hold that the grant in this case comes within the purview of Section 6 of Regulation XXXI of 1803, and consequently, being contrary to law, cannot afford a basis for either of the first two reliefs asked for in the plaint.
4. The next contention put forward by the learned advocate for the appellants was based on the provisions of Section 28 of Act No. X of 1859. That section provides that applications to dispossess grantees of land exempt from revenue must be instituted within the period of twelve years from the time when the title of the person claiming the right to assess the land, or dispossess the grantee, or of some person claiming under him, has accrued; and that if such period has already elapsed or will elapse within two years from the date of the passing of that Act, the suit might be brought at any time within two years from such date. It was argued that the right of the defendants to resume the land and have it assessed expired on the 29th of April 1859, on which date the period of two years after the passing of Act No. X of 1859 expired, and that consequently the plaintiffs had acquired an indefeasible title to hold the land revenue free. This plea might have been advanced by the plaintiffs in answer to the suit which was brought against them by the defendants in the Revenue Court to recover the revenue which they had paid for the land held by the plaintiff, but we do not think that this section, though it might perhaps have been pleaded in bar of a suit by the defendant for resumption or assessment, can be of any' assistance to the plaintiff in this case.
5. The third and last contention on behalf of the appellants was that the defendants having failed to perform the conditions attached to the grant made in favour of Rahmat-un-nissa by Bakhshish Ali, by realizing from the plaintiffs the revenue for the land which was the subject of his grant, the plaintiffs were entitled to possession of a proportionate share of Rahmat-un-nissa'a inheritance out of Bakhshish Ali's estate. In the view which we have taken of the validity of the grant, we are unable to accede to this contention. As in our opinion the condition which Bakhshish Ali imposed upon his heirs was a condition in violation of law, a breach of such a condition could not, in our judgment, confer on Rahmat-un-nissa, or on any person deriving title from her, the right to claim the share which Rahmat-un-nissa would have inherited out of Bakhshish Ali's estate under the Muhammadan law.
6. For the above reasons the appeal must, in our opinion, fail. We dismiss it with costs.