1. The appellants were claimants Nos. 7 to 9 in the lower Court, and they claimed proprietary interest in the land under acquisition, or, in the alternative the interest of permanent tenants. Their claim of proprietary interest has been abandoned and very properly abandoned, by the learned Vakil who has argued their case. The only question that remains for 'our decision is whether they have succeeded in making put a case of permanent tenancy.
2. The kobala of the 27th September 1842, executed by one Srimati Bimola Sundari Dasi in favour of Jadub Chandra Bose, the predecessor of the claimants shows that she had a tenancy right in respect of 4 bighas 2 1/2 cottas of land, tanks and trees, bearing a rental of sicca Rs. 24-12. The land was described in the kobala as garden land, and the kobala further stated that the husband of Bimola had purchased the land and had been in enjoyment and possession of it and that she had inherited it as the heiress of her husband. At that time the tenancy stood in the office of the landlord in the name of her husband Ganga Narain Sirkar, The deed, therefore, shows that Ganga Narain was recognised as purchaser, and his name was substituted for that of his vendor. The name of Bimola was not substituted in the landlord's office, but it does not appear when Ganga Narain died and whether there was a sufficient interval between the death of Ganga Narain and the kobala of 26th September 1842, which might lead to an inference that the landlord had refused to recognize the inheritance of Bimola. Nothing, therefore, turns on the non-substitution of Bimola's name. On the other hand the hukumnama dated the 8th Chait, 1249, corresponding with 20th March 1843, clearly indicates that the then landlord, the Nawab of Chitpore recognized the purchaser from Bimola and directed a kabuliat to be executed by him and possession to be delivered to him; Bimola's tenancy by inheritance from her husband was thus indirectly recognized. Since the purchase by Jadub Chandra, the property has remained in his family, and his belt's and descendants have been successively recognised as tenants for more than half a century. Devolution of interest either by assignment or succession, and its recognition by successive landlords, afford sufficient evidence of permanency.
3. The direction in the hukumnama of 1843, as to the delivery of possession to Jadub Chandra was a surplusage. It is a purely formal matter. Sometimes istafas used to be taken from vendors in those days, and nothing turns on the form of the hukumnama. There is no evidence of actual cessation of possession of Bimola and subsequent delivery of possession to Jadub Chandra. The kabuliat of Jadub Chandra has not been put in and we do not know what the contents of that document were. The respondents did not, or would not, produce it.
4. Bimola though she was a Hindu widow, received Rs. 151, as the sale-money which, in comparison with the increased value of money in these days, was undoubtedly far mote than the price of a tenancy from year to year. The compensation which has been allotted on apportionment, by the learned Judge to the appellants as the market-value of a tenancy from year to year is considerably less than Its. 151 the sum paid by their predecessor to Bimola sixty years ago. It is not reasonable to suppose that Jadub Chandra would have paid Rs. 151 for a tenancy which, had little market-value in those days. The parties to the kobala must have been selling and purchasing a higher right.
5. Since the year 1842 the same rent of sicca Rs. 24-12-0, with the addition which the conversion of sicca rupees into Company's rupees, necessitated, has been paid by the claimants or by their predecessor. It is quite clear from the documents before us that the rent has not only remained unchanged since 1842 but that the same rent was paid at least for some years before 1842. The origin of the tenancy is unknown, but the legitimate inference is that the tenancy is permanent and at fixed rent. In 1867, some of the claimants and the predecessors of others mortgaged the property.
6. Then again, the land was used for horticultural purposes. It was a garden, and, under the Rent Acts of 1859 and 1885, the rents could not be enhanced and the tenant could not be ejected. Though the present case is not one under any of those Rent Acts, we should, in ascertaining the share of compensation money payable to the appellants, take into consideration their liability, if any, to ejectment or enhancement or rent notwithstanding any present use of the land, the original character of the tenancy leads to an inference adverse to the landlords.
7. The fact mentioned in the kobala by Bimola that a chowth or one-fourth of the purchase-money should be paid to the landlord is not sufficient to outweigh the presumption which arises from the admitted facts. We do not know, and no evidence has been gone into on the point, what the custom or local usage in those days was sixty years ago. The payment of chowth does not necessarily mean non-transferability. It might then have been the ordinary fee for registration in the landlord's office of even transferable holdings. The words used in the kobala would lead to such an inference and not an inference adverse to the appellants. We ought not to construe an ancient document in the light of present usages or modern understanding of the law. We must place ourselves in the position of persons living in those days, when ejectment was unknown and landlords charged heavy fees for registration.
8. It appears to us that this case cannot be distinguished from the cases of Upendra Krishna Mandal v. Ismail Khan Mahomed 32 C. 41 (P.C.) and Nil Ratan Mandal v. Ismail Khan Mahomed 32 C. 51 (P.C.) which were decided by the Judicial Committee about the time when the learned Judge of the lower Court pronounced his judgment in the case under appeal. In the cases before the Privy Council the purchasers, in circumstances similar to the purchaser in the present case, had to execute fresh kabuliats, and the old tenants had formally to relinquish. It is true, that in these cases, there were more documents indicating transfers and transmissions of interest, but the same principle must govern as the main facts and incidents are indistinguishable.
9. We are, therefore, of opinion that the appellants are entitled to the entire amount of compensation less the capitalised value of the rent payable by them to the claimants Nos. 1 to 4. These latter claimants are entitled to twenty years' purchase of the rental which was payable to them on account of the land under acquisition. The appeal is decreed in the above terms.
10. In the decree which is to be drawn up the amount payable to each of the claimants or sets of claimants should be specified. No interest, however, should be charged on account of the money deposited in the lower Court by one party in favour of the other, as no application was made by either party for investment. Each party will bear their own costs in both the Courts.