John Edward Power Wallis, C.J.
1. This case is one of some difficulty and rather on the line, but after having the very lull arguments of the counsel on both sides, we have come to the conclusion that we cannot support the decision of the Subordinate Judge.
2. The question is as to whether the terms of Ex.,A amounted to a permanent grant. The words used are ' Kayampatta' which are translated as ' perpetual lease'. Prima facie of course these words would be taken to mean what they say. But there is a long course of decisions mostly in cases arising in Northern India, but treated by this Court as applicable also to this part of India, that having regard to the general usage of the country, such words as these and the words ' istimrari mokurari' dp' not
3. Prina facie convey more than life estates. That doctrine was applied to this part of India and to a term similar to that in the present case in Rajaram v. Narasinga I.L.R. (1891) M. 199. The term there was ' Kayam Saswata Patta' which is even stronger, as the word Saswata' is not used here, and yet the court consisting of Parker and Shephard JJ. held that it did not convey a permanent right and in Foulkes v. Muthusami Gounden I.L.R. (1898) M. 503 Subramania Ayyar and Moore, JJ. did not differ from the law as there laid down They say 'It is quite true, as urged for the appellant, that when land or even an interest in land is intended to be transferred hereditarily, it is usual to indicate that intention by the use of the words from son to grandson; from generation to generation ' or the like. In the present instance, however there was no transfer of land or an interest in land, but only an agreement as to the rate at which assessment was to be paid in respect of lands in which the party found to pay the assessment admittedly already possessed 'a heritable estate' They ac cordingly distinguished the case before them on that ground But while that is the general principle, at the same time it has been again and again laid down by their Lordships of the Judicial Committee that we are to look to the surrounding circumstances and to the conduct of the parties to see what their real intention was in the grant. For that proposition it is only necessary to refer to the decision Tulsi Per shad Singh v. Ramnarain Singh I.L.R. (1885) C 117 their Lordships say: 'After this review of the decisions, their Lordships think it is established that the words istimran mokurari' in a pattah do not per se convey an estate of inheritance but they do not accept the decisions as establish ing that such an estate cannot be created without the addition of instrument, the circumstances under which it was made, or the subsequent conduct of the parties, might show the intention with sufficient certainty to enable the Courts to pronounce hat the grant was perpetual.' The question, which is one of some difficulty with which we are faced here is to decide whether the subsequent conduct of the parties is sufficient to enable us to say question must be answered in the affirmative. The grant was made in 1857 and there are a number of documents, Exhibits I, IV and VIII which would not perhaps be of very great value if they stood alone, showing that the grantees dealt with their tenants as if they were entitled to permanent rights. Then we have Ex. IX of the year 1879 which is a mortgage by the grantee to the grantor for Rs. 700. It is said that it may have been the life interest only of the grantee that was mortgaged; but that is by no means apparent when we consider this grant with the further documents which have been referred to. We have Exhibit B of the year 1895 which is a document of compromise between the grantor and the grantee and his sons and in that document it is distinctly stated that the grantee has a permanent right. Not only is the grant spoken of as a permanent grant, which expression would scarcely have been used by the Zamindar's people so soon before the right of redemption was likely to fall in if they denied the permanent character of the grant; but also there is this stipulation : ' Out of the Rs. 80, the permanent total yearly amount of demand which you have to pay every year we shall remit permanently at the rate of Rs. 40 a year '. ' Which you have to pay', the plural ' you' is used, and in a document from a superior to an inferior, suggests that it applied both to the grantee and his sons. Then we have Exhibits XV and XV (a), which show that when certain of these lands were acquired for public purposes, the compensation was paid to the grantee and that the grantor and his heirs made no claim to any share in it. But stronger than all these is the evidence as to the way in which the grantor regarded grants in these terms of neighbouring villagers. Exhibit VI is a purchase by the grantor from the grantee under Ex. V, which is similar in terms to the present document. It is sought to suggest now that this was a purchase only of the life interest of the grantee, but there is nothing in the document to support that suggestion. Then we have a still stronger instance in Exhibits XVII and XVII (a). Under Ex. XVII a representative of the grantee sold a share in the village to a third party and under Ex. XVII (a) the heir of the grantor in the year 1892, that is forty years after the date of the grant in question purchased that part of the village which had been alienated under Ex. XVII. It is immaterial whether the original grantee was dead as he most probably was at that period, because forty years after the grant his expectation of life must be very small in this country and not worth purchasing. It is we think, exceedingly significant, as showing the way in which these grants were regarded by these people, that the grantor's heir should have purchased back part of the grant. On the whole I think there is sufficient in the subsequent conduct of the parties to take the case out of the rule which is laid down in Rajaram v. Narasinga I.L.R. (1891) M. 199 and I would therefore reverse the decree of the Subordinate Judge and dismiss the suit with costs throughout.
Coutts Trotter, J.
4. I agree. I should only like to add this : I think the language which their Lordships of the Privy Council employed in Tulshi Pershad Singh v. Ramnarain Singh I.L.R. (1885) C. 117 was expressly used in order to leave the Courts free to give the fullest effect to the circumsatances of each case and to avoid laying down any hard and fast rule of construction, and I think we are carrying out the intention of their Lordships in giving full effect to the surrounding circumstances of the case.