1. This appeal arises Out of a suit brought by the Maharaja of Chota Nagpur for resumption of three villages, Koinjara, Dodhra and Kudarkon, on the allegation that the villages were held as a maintenance jagir for life in joint tenancy by three ladies Deokali Koer, Badam Koer and Khetrani Koer, of whom the last surviving, Khetrani Koer, died on the 19th August 1901; that the defendant No. 1, Kali Sunkar Sahai, had been holding these mouzas under a registered moakarari deed, dated 18th December 1867, from Badam Koer and Khetrani Koer and on the 19th November 1895 had purchased the right, title and interest of the ladies in a sale under Section 124, Act I, B.C., of 1879, in the nam 85 of himself and his wife and sons, defendants Nos.2 to 6. Mesne profits from 1958 S. were also claimed. The defence was that the jagir of the three villages was not a life jagir for maintenance of the three ladies but was an absolute jagir granted to the ancestors of their husbands which the ladies had been holding under the ordinary Hindu Law; that even if the tenure was terminable on failure of male issue in the line of the original grantees, as the husbands of these ladies died much more than 12 years ago, the plaintiff's claim is barred by limitation. It was also urged that the plaintiff had, in execution proceedings, through his Karpardaj Basant Lal, described the villages as ancestral jagir of the ladies and is, therefore, estopped from asserting the contrary. It was also urged that the plaintiff is not entitled to resume without sanction of Government, and that the suit is barred by limitation against the defendants Nos. 4, 5, 7 and 8 who were made parties more than three years after the order under Section 145, Criminal Procedure Code, passed on the 10th February 1902. The Subordinate Judge held that the estate of the ladies was a life-tenure for maintenance carved out of a larger putra putradi grant of 12 villages given to their husbands' ancestors and resumable at the death of the last male representative.
2. He further held that there was no estoppel in the execution proceedings; that what was sold was the light, title and interest of the ladies in their life-tenure; that that tenure came to an end at the death of Khetrani Koer and it was not necessary to set the auction-sale aside. On the point of limitation he held that there was no satisfactory evidence to show that the Maharaja had ever denied the ladies' life-interest or tried to oust them, but even if he had, the relationship of landlord and tenant had never ceased and the ladies had never asserted any adverse rights and had paid in the road cess and filed road-cess returns which was the only act of tenancy they had to perform.
3. He also found that there was no special limitation in respect of the Section 145 (Criminal Procedure Code) proceedings inasmuch as the minor defendants were not parties to the Section 145 (Criminal Procedure Code) proceedings and defendants Nos. 7 and 8 were not parties to the auction-sale and defendant No. 8 was made a party within three years of his birth. They were made parties at the request of defendants on 25th February 1905, to avoid future litigation. He further held that the lands not being lakheraj the sanction of Government to the resumption was not necessary.
4. He, therefore, gave a decree to the plaintiff for all the reliefs he claimed, i.e., for khas possession by ejecting the defendants with mesne profits from 1958 S. to delivery of possession in execution of the decree, to be determined in execution, with costs and interest at 6 per cent per annum.
5. The defendants appeal and their main contention is that the learned Subordinate Judge has overlooked the principal question in this suit, viz., Is the plaintiff entitled to resume and if so when did his right to resume accrue? The plaint is founded on a life grant and we have to see if the evidence bears this out. If the life-tenancy is proved, the defendants are admittedly out of Court. No question of custom arises and none is alleged in the plaint.
6. It is strongly urged that the question of title must be positively proved by the plaintiff, that he cannot avail himself of the defendant's admissions. If no life-grant to the ladies is proved, their possession becomes adverse as resumption ought to have been made on the death of Deodhari, the last male incumbent in 1839. The appeal was in effect argued solely on these points, though great efforts were made to whittle away the effect of the admissions made by the ladies and the defendant No. 1 himself.
7. One minor point was argued, via., that the suit is barred by Section 37 (5), Act I of 1879, because the lease or grant was liable to be cancelled. But we find no such point arises, as there is no document on the record to be set aside and a grant made by sanad for life would lapse of its own force by the death of the life-tenant and with it any lease granted by the life-tenants. Besides, Section 37 has do application to a title suit of this nature. We have, therefore to consider only two main questions: Firstly, whether the plaintiff has prima facie established his title and the factum of a life-grant to the ladies? Secondly, what is the effect of the defendant's admissions and those of the ladies as evidence bearing on the plaintiff's case? It may be conceded at the outset that owing to lapse of time, the plaintiff's evidence as to the grant to the ladies is not very strong, but such as it 13, it is unrebutted except by the affidavit of Basant Lal, Exhibt H, page 110A, and it is strongly corroborated by the conduct of the ladies themselves and by the admissions of the defendant No. 1.
8. The principal evidence on the side of the plaintiff is that of certain mulki papers of the year 1842, copies of which, Exhibits 14 and 15, have been produced from the office of the Deputy Commissioner and Exhibits 40, 41, duplicates apparently from the office of the Commissioner. Now, these documents appear to have been returns filed by the then Maharajah in respect of his zemindari in Chota Nagpur under orders of the Court, filed by the elakadars under Regulation VIII of 1800, para. I[[. They are not the registers prepared under that Regulation which would be authenticated by the Collector and have not, therefore, the very high evidential value placed upon them by the learned Subordinate Judge. They require proof of origin and authentication by the Maharajah and this is furnished by the signature of his mukhtear Jubraj Lal and by a monogram forming the word 'Sahi' which is identified by the record-keeper as being the authentic mark of the former Maharaja found upon all his papers filed in the Government Record Room.
9. Similar papers were admitted and used as evidence by the High Court in their judgment in R. A. No. 6 of 1880, dated the 24th November 1381, which will be found on page 15 of Paper Book C. It was held that it was a statement made on the requisition of a public officer regarding matters connected with the estate of the Maharajah which were well known to him and long before any adverse claim had been set up, but still it was open to the objection that it is not necessarily the best evidence that was procurable and there is nothing to show the source of the information on which the history of the grant was supplied. Prinsep, J, therefore, said that if the plaintiff's case depended on this evidence, he should not be inclined to accept it as conclusive. Cunningham, J., the other learned Judge, appears to have placed a much higher evidentiary value upon it and to have treated it as a register under the Regulations.
10. It is strongly criticized here on the ground that in this case it appears that a dispute had already commenced as to the nature of the grant, and that the notes on the nature and history of the grant are in a different handwriting and ink in columns 7 and 13 to the rest of the return. Farther, it is stated as regards Kadarkan that a copy of the sanad was filed with the return and no such copy is produced though it is contended that such a copy must exist in the Maharajah's sanad register. Now it clearly appears from a judgment of the Personal Assistant to the Agent to the Governor-General, Lohardagga, dated 3rd May 1842, that one Panday Ganpat Rao, who had charge of the Maharajah's papers as hereditary Panda, had wrongfully detained them and he was put in the Civil Jail for a month in consequence and is said to have died there. The judgment further shows that the Maharajah had been unable to supply his mulki forms on the 2nd February 1842, owing to this man's conduct. From a petition Exhibit 19 on page 44A, it appears that the papers had been ordered to be filed on the 9th December 1839 and that the Maharajah submitted a list (first), the very word used in the heading of Exhibits 40 and 41 showing the names of the elakadars, the names of the villages and the amount of rent, but was unable to fill in the gross produce and the area of cultivated and uncultivated lands owing to the absence of the tenants. It was ordered that a copy of the forms be sent to the Maharajah on the 28th August 1840 to fill in the form in respect of his zemindari within one month under heavy penalties and if the Maharajah be ignorant of the particulars of the sanads of elakadars, the column in which the specifications of the sanads are to be given should be left blank, a remark being made in the remark column to the effect that particulars of the sanad are not known. Now this is what appears to have been done and is the explanation of the notes appearing in a different handwriting. We can have no doubt, however, that that handwriting is contemporary and of the same age as the rest of the document. There is no sign of subsequent interpolation and the other entries which are of a similar character throughout the books are not disputed. There is absolutely no reason to suppose that these entires were not made in 1842 and authenticated by the Maharajah.
11. The rubakari of the Commissioner; on which a judgment of the Assistant Agent in 1843 is based, that these papers are not rulings or documents in respect of civil suits and that they will be of no use in the case, is in no sense a declaration that they have no evidentiary value, for no such declaration could be made by the agent of the Governor-General who Lad executive charge of them, and in 1858 Colonel Dalton, the Commissioner, ruled that there could be no objection to any party getting copies of them but that the meaning of the Agent in 1843 was that they were books to be bound and carefully preserved as estate records and the Agent could not allow the originals to be used as evidence in any Court. This order which in itself appears to be ultra vires is certainly nothing more than an assertion of privilege for the documents on the part of the Agent who held their custody, and adds to rather than detracts from their evidentiary value. This fully explains the rubakari, dated 29th January 1844, Exhibit F. F., on which great stress has been laid by the defendants, it being nothing more than a note handing on the orders of the Agent to Assistant Executive Officers for communication to mukhtears who are forbidden to use these papers as documents in any matter. It is clear that there was not and could not be any objection to their contents being used as evidence, but the authorities objected to the originals being bandied about in the Courts so as to run the risk of being tampered with. The original order of the Agent states that they had not then been bound and asks for their immediate return for that purpose. All this goes to show that they were very carefully kept and it is not at all likely that any interpolations were made. We have seen that Colonel Dalton found them intact in 1858, and from 1862 onwards we have the sworn testimony of the old retired Record-keeper, Baikantha Nath Kay, that they were in his custody and he had them re-bound and labelled. It is sought to show that this witness was on bad terms with Mewa Lal and Kali Sankar, but that was at a later data than 1862, and both Mewa Lal and Kali Sankar had made admissions consistent with the entries in these papers and there is no suggestion nor on the face of the papers is there any possibility that the notes were added after 1862. They are, as we have Said, clearly contemporaneous with the filling up of the forms in 1842.
12. Then as to the copy of the sanad said to have been filed in regard to Kodarkan, there seems to be no reason why such a copy should not have been filed but the sanad book is shown to have been removed by Ganpat Rao. The original sanad must have been with the ladies and the plaintiff cannot be said on any evidence to be holding back any copy of the sanad now in his hands.
13. As regards the contention that the dispute about this tenure had already began in 1842, there is not a particle of evidence to show that there was any dispute. The contention rests on an assumption that the ladies were holding on as Hindu widows after the death of Deodhar and claimed an absolute estate, 'There is nothing to show this and if the story of the sanad be true, it was obviously granted before 1812.
14. We find the mulki papers of 1842 authentic, sufficiently proved, and to contain statements made by the Maharajah at a time when there was no dispute against his own proprietary interest. The Maharjah's case clearly is that the ladies' husbands had 12 villages in putra putradik tenure and it is proved that this is the customary form of tenure in the Raj and in the absence of any evidence whatever of a permanent grant, the statement of the ladies themselves clearly made in 1889 must be accepted. Exhibit 4 is a Road, Cess Return filed by the mukhtears of the ladies, Rumdhari Pershad, on the 9th November 1889. It recites the whole history of the taluk and is undoubtedly genuine. On page 60 (Paper Book A), Musammat Badam Koer admitted the signatures on cath. She gives the usual lame explanation of blank papers being given. But to whom were they given? To the defendant No. 1 himself who was her nephew, son of her brother and Vakil and himself holding a mokarari of the villages under her, which it would be to his interest to show was a mokarari of a permanent and not of a resumable tenure. The genuineness of the signature is clearly shown by the fact that Badam Koer swears to her signature on the vakalatnama given to Mewa Lal to file the Road-Cess Return of 1882, Exhibit 9; while the signatures of the ladies appearing on the document itself are obviously in the handwriting of a scribe and not of the ladies. We have satisfied ourselves that the signatures of Badam Koer on the vaklatnama of 1882, and on the Road-Cess Return of 1889, Exhibit 4, are of the same person and that person a lady of only moderate penmanship. That this Exhibit 4 is the work of Kali Sankar, defendant No. 1, himself is shown by the fact that Part I of the return, of which Exhibit 4 is Part III, was filed by Kali Sankar himself, (Exhibit 22, page 47A) as mokararidar of the ladies. When he intervened in the rent suits in 1891, he filed copies of these returns of 1882 and 1889 in Court, and he admits that he filed Part III of the return for 1899 himself as mokararidar. Against these papers, it is contended that the history of the tenure set out in the preamble is surplusage and unnecessary. We find it is the universal practice in all Road-Cess Returns filed in this case and as far as we can gather in all cases.
15. Then it is said that the admissions of the ladies cannot be used against the defendant No. 1 as he is now claiming as auction-purchaser at a sale for arrears of road-cess and not as their mokararidar. But the very fact that the ladies had to pay road-cess shows that they were still tenants of the Maharajah and not holding adversely to him and his own evidence shows that the statements made are his own statements entered, as Badam Koer says, on blank papers signed by her and given to him. The writing of the return Exhibit 4 is proved by the writer Iswar Dayal P. W. No. 4 and he says he wrote at the request of the ladies. He proves that Ramdhari Pershad was the mukhtear and he gave him the mukhtearnama signed by the ladies. The ladies were living in Kali Sankar's house and were then on good terms with him. He himself had been a servant of Kali Sankar Sahai. Ramdhari Pershad, the mukhtear, himself proves the return Exhibit 4 and the due execution of his mukhtearnama. He acted as mukhtear for defendant No. 1 and is P. W. No. 6.
16. If the statements are not admissions, we think they are positive evidence of the plaintiff's title coming from the ladies themselves and authenticated on oath. No better evidence for the plaintiff could be imagined and it is futile to contend that the plaintiff cannot use them as evidence of his title but only as admissions after he has proved his title affirmatively.
17. Both Exhibit 4 and Exhibit 9 were used by Kali Sankar in litigation for his own purposes and he is bound by them.
18. Accepting these documents as evidence, the plaintiff's case is proved up to the hilt. But there are a long series of admissions by Kali Sankar himself. Among these, we may mention Exhibits 17, 16, 44, 46, 10, 11, 13 and 20.
19. Exhibit 17 is a petition filed by Kali Sankar in the Maharajah's office on the 24th May 1890. It is dated 29th March 1890, but it is proved that it was filed on the later date by an entry made at the time in the Maharajah's petition register where it is numbered 2592, which number appears on the face of the document. In this, he applies for registration in the landlord's sherista as mokararidar of the ladies khorposhdars, as long as their right and title will be enforceable.
20. Madho Prakas, mohurrir of the Maharajah since 1889, proves the filing and entry in the petition register. He fixes the date but could not be said to establish affirmatively that Kali Sankar himself filed it. This however, is established by Lal Iswar Nath Sah Deo, a respectable talukdar and a relative of the Maharajah, who was Naib Manager for him in 1890.
21. He is clear as to the presence of Kali Sankar and that the order on it was written by him and initialled by Mr. Peppe, now deceased, on the very same day. The initial is undoubtedly that of Mr. A. Peppe which cannot be mistaken. In addition to this Kali Sankar's own mohurrir who wrote the petition at his orders deposes to it though he says this is the only paper of Kali Sankar's that he knows of that does not bear his seal and signature. That Mr. Peppe or Lal Iswar Nath Sah Deo forged this document, as they must have done on 24th May 1890, there isno possible reason to imagine. Nothing then turned on it.
22. Exhibit. 16 is the mokarari pattah to Mewa Lal which both Mewa Lal and Kali Sankar acted upon. It clearly recites that the tenure is khorposhi.
23. Defendant No. 1 now asserts that this was a colourable document as be discovered after his father's death, and was only given to enable Mewa Lal the better to manage the property for his sisters. But Kali Sankar's own conduct puts him out of Court on this point. It is true that Mewa Lal was always good to the ladies and appears never to have stinted them for money, but Kali Sankar acting on this pattah confined them strictly to the Rs. 24 rent due under it and used the property as his own. This is proved by his intervention in the rent suit brought by the ladies in 1891 against some tenants in which he claimed absolute mokarari right as vested in his father and himself and denied their right to collect rent. This is Exhibit 10, dated 16th January 1891. Exhibit 11 is a petition of objection, dated 17th March 1892, in pursuance of this intervention and may be read with it as emphasizing the previous petition. Exhibit 20 is a petition by Mewa on behalf of his sisters, dated 13th June 1884, in which they clearly admit the khorposh grant. The vakalatnama, Exhibit No. 21, dated 6th June 1884, to Mewa Lal by the ladies was admittedly signed by them.
24. It is urged that Mewa Lal was a servant and friend of the Maharajah and deliberately gave the ladies away in this transaction. When a defendant has to make such criminal aspersions on the memory of his own father against whom nothing appears on the record, his case must be indeed a bad one.
25. Exhibit 46 is a petition of Kali Sankar, dated 15th August 1893, which by comparison of handwriting clearly appears to be entirely in his hand and is proved to have been personally filed by him. The handwriting is proved by a Pleader, Dinesh Prasad, P. W. No. 13, who was engaged in most of his cases and against whom nothing is shown; also by Lal Iswar Nath Sah Deo who knew his handwriting well. Kali Sankar denies this document on oath but he admits Exhibit 44 which clearly shows his handwriting as well as other colourless documents referring to the same matters but not containing admissions. It is clear that Kali Sankar did make a petition on 15th August, though in Exhibit 44 he gives the date 14th August, and Exhibit 46 is that petition. It is said that the word ' orally' is not in accordance with facts but there is nothing on the record to show this.
26. Exhibits 12 and 13, dated 10th July 1889 and the 20th February 1892, respectively, clearly show that Kali Sankar filed copies of Exhibits 4 and 9 in Court as documents in support of his case and got them returned. There are numerous other admissions but they were not of such importance. We confess that we are unable to understand the contention that these documents which are filed and proved by the plaintiff and are part of his case are of no avail to him in discharging the onus of proof of title which lies upon him.
27. Surely, if the defendant goes into the witness-box and admits plaintiff's title, there is no further onus upon him to prove it as against such defendant. The proved dealings of the defendant No. 1 and his father with the properly are as much positive evidence of plaintiff's title as sworn testimony thereto would be.
28. In the lower Court the contention was that these admissions were used as secondary evidence of a restricted grant to the ladies without sufficient foundation for not producing primary evidence of the grant. The Subordinate Judge has fully dealt with this technical question which was not pressed before us. It is sufficient for us to say that if they were only to be treated as secondary evidence, it is clearly shown that the original sanad could not be with the Maharajah and that his sanad book had been stolen. The existence of a casual copy of one sanad in his office would not throw any further burden upon him, especially as that copy is shown to have been filed in the Deputy Commissioner's office.
29. The documents are direct evidence of the nature of the ladies' tenure which is i the point in issue and if, as is contended, the existence of a sanad is not proved, they would be unanswerable evidence of plaintiff's title. On the other hand, the defendants have completely failed to adduce any evidence whatever of a permanent grant to the ancestors of the ladies' husbands and the plaintiff's case stands unrebutted.
30. The only point they make is in regard to an affidavit of one Basant Lal in 1895 in execution proceedings stating that the villages were the putra putradik jagir of Musammats Badam Koer and Khetrani Koer. This was affirmed on the 8th July 1895.
31. But this witness had sworn on the 30th March 1895, Exhibit P. P., that the ladies were jagirdars and it is in this indefinite form that the decree and sale certificate are drawn up. The Maharajah did not go to sale on this specific allegation. He went to sale on the allegation that it was his milkiyat and gave the value of that milkiyat as the basis for the valuation in execution which was for arrears of Road-cess. What is important is what was sold, and we do not think that this affidavit is any evidence of that.
32. If the sale was under Section 124, Act I of 1879, B.C., what passed was the right, title and interest of the judgment-debtors. If it was not, the sale was either under the general law by virtue of Section 129 of the Act or it was no sale at all and the defendants acquired nothing. If it was under the general law, the same right, title and interest would pass. We have never heard that an error of fact in an affidavit, which was never acted upon and which could not affect the character of the property sold, confers a right on the purchaser which he could not obtain by the actual sale. Basant Lal deposes that ho filed the affidavit as a routine matter without personal knowledge, but the plaint in the suit signed by the manager described the property in suit as life-tenure for maintenance and the decree could not and did not go beyond the prayer in the plaint.
33. The decision in Mookhya Huruckraj Joshee Y. Ram Lal Gomastha 14 W.R. 435, with which we entirely agree, does not touch this case. The authority of Basant Lal is not shown and we do not find the Maharajah bound by his statement. As regards the alleged attempts by the Maharajah to dispossess the ladies, which are urged as a ground for holding that their possession was adverse, we cannot find that the Maharajah was in any way responsible for the acts of Bhuka Singh or Kapil Nath Lal, while Mewa Lal's conduct as brother and Pleader of the ladies certainly cannot be saddled on him. The non-production of the registers of leases granted by the Maharajah has been made much of But the order-sheet, though not so precise as it ought to be, seems to show that the Maharajah made full disclosure of all papers he had in the office. See order 69, dated 6th January 1908. The Subordinate Judge was right not to issue further process on Bhuka Singh; vide order No 84, dated 10th January 1908. We have looked at the Road cess papers filed in 1889 by the manager wherein an interpolation appears against the ladies' names ' in wrongful possession' and we find that these papers are full of subsequent additions and interpolations, many being made in pencil.
34. The entry in question is obviously in different ink of a later date, and in the same hand as numerous other emendations apparently made by clerks in the Road-cess office. The returns in their present state are worthless as evidence of anything. On all other minor issues, which are not pressed before us, we agree with the Subordinate Judge. The defendants have elected to stand or fall on the proved nature of the grant and we find that it was a maintenance life-grant to the ladies. On this footing, no question of limitation arises. As regards the remarks of Jenkins, C.J., in Lakhamgauda v. Keshaw Annaji 28 B. 305 at p. 309 : 6 Bom.L.R. 364, we may say we fully agree with them but they have no bearing on this case in which the evidence appears to be ample and one-sided and in which there is no combination of circumstances to be proved but a simple fact which is in itself probable and consistent with the history of the tenure, namely, that the ladies held a life-grant.
35. We find that the decision of the lower Court is correct and the appeal is dismissed with costs.