1. An estate, now vested in the plaintiff, the appellant before UP, was originally held in two undivided moieties. The owner of one moiety granted a tenure thereof in favour of two persons, Fatch Ali Miji and Asauddin Miji, evidenced by a Kbuliyat which they executed, dated the 1st Chaitra, 1271 (1865). In this document the tenure is referred to as an itmam. The other majority was also held by the same two persons as a tenure, described as a Taluk. It may be conceded to the plaintiff, as his case is, that the taluk was created orally at the same time as the itmam, though there is really no evidence how the taluk same into existence.
2. In 1878, after the death of Fatch Ali and Asauddin, the widow and grandson of the former and the widow and daughter of the latter conveyed the two tenures to Haidar Ali, the predecessor in interest of the defendants.
3. The Suit was brought en the basis that the terms and conditions of the itmem, as they appear in the kabuliyat of 1865, are inconsistent with the permanent tenure which the defendants claim. As to the taluk, the plaintiff's theory, rather a weak one, if, that it mast be presumed to have been granted on the same terms as the itmam. There is more force in the argument for the defendants that the taluk, prima facie, a permanent tenure, and that if there is any doubt as to the permanency of the itmam, it must be resolved in their favour. The plaintiff, acting on his view of his rights, treated both tenures as tenancies from year to year and served notice to quit on the defendants. They refused to quit and the present suit was brought to eject them. The appeal is from the decree of the Subordinate Judge dismissing the suit.
4. We concur in the view taken by the learned Subordinate Judge.
5. As to the facts, we have already indicated that the tenures descended from Fateh Ali and Asauddin to their heirs, They passed by transfer from the latter to Haidar Ali and have now devolved on Haidar Ali's heirs and representatives. The rent has never been raised since 1865. The fast that rent receipts were granted marfatdari in the names of the original grantees is certainly not conclusive, in the present case, to show that the tenures were not transferable. A taluk is prima facie transferable and we shall hold on the construction of the kabuliyat of 1865 that the itmam is also of a transferable character.
6. There was some dissuasion whether the term 'itmam,' which is used in the heading of the kabuliyat and thrice in the body of the document, imports permanently, The term it appears, my be applied to a raiyati holding or to a tenure. In Ameer Ali and Finucane's Tenancy Act (2nd Edition, page 807) it ia stated that, in the permanently settled tracts of Chittagong, an 'itmam' is transferable, heritable and held at a fixed rate of rent is perpetuity. In temporarily-settled area, the rent may be liable to enhancement, at any rate, when a fresh settlement is made. Jogesh Chandra Roy v. Makbul Ali 54 Ind. Cas. 850 : 23 C.W.N. 945 : 30 C.L.J. 140. Reference may also H made to Mr. Allen's Settlement Report of 1888, 898 for Chittagong (page 27), to his Note upon, Itmamdars and Dar-itmamdars in Chittsgong, to be found in Volume V of the Selections from the Records of the Board of Revenue, L. P.' (page 200, esp. page 225) and to the District Gazetteer of Chittagong (page 149). It may be that such reports and books are not, strictly speaking, evidence, or that they do not come or do not at all come within the scope of Section 35 of the Evidence Act, but we see no objection to their being read for what they maybe worth Of Garuradhwaia Fraiad v. Superundhwaja Prasad 23 A. 37 : 27 I.A. 238 at P. 248 : 10 M.L.J. 267 (P.C.) : 5 C.W.N. 33 : 2 Bom. L.R. 831 : 7 Sar. P.C.J. 724 and Sir Rash Behary did not insist on the objector, which he rather suggested than argued. Our conclusion is that, as applied to a tenure in the permanently-settled parts of Chittagong, the word 'itmam' primarily imports a permanent, heritable and transferable tenure. It is well settled that the word taluk primarily imports permanency. Sarada Kripalala v. Akhil Chandra Biswas 41 Ind. Cas. 530 : 21 C.W.N. 903 : 28 C.L.J. 18, Upndralal Gupta v. Jogesh chaNdra roy 38 Ind. Cas. 56 : 22 C.W.N. 275. No doubt, the terms of a written instrument may be inconsistent with the ordinary implication of either term. Either term may be loosely or mistakenly applied to a tenure which is not in fact permanent and which does not become permanent merely because it is called a taluk or an itmam
7. We pass to the kubuliyat. It is described as a 'bandobasti kabuliyat' or settlement kabuliyat. Nothing turns on that. The lease was for an indefinite period and there are no words of limitation or inheritance: 'We shall,' say the grantees, 'pay into your sarkar, year after year, the aforesaid jama (or rent) in accordance with the kist (or instalments) mentioned above.' A lease from year to year is really out of the question. That being so, the strict rule seems to be that 'if a grant be made to a man for an indefinite period, it enures, generally speaking, for his lifetime and passes to interest to his heirs, unless there are some words showing an intention grant an hereditary interest.' But that rule of construction does not apply if the term for which the grant is made is fixed or can be definitely ascertained:' Lekhraj Roy v. Kunhya Singh 3 C. 210 : 4 I.A. 223 at P. 225 : 3 Suth P.C.J. 453 : 3 Sar. P.C.J. 758 : 1 Ind. Jur. 636 : 1 Ind. Dec. (N.S.) 722. The lease, therefore, enured at least for the lifetime of the grantees. Then there are words which go to indicate that a permanent lease was intended. The provisions of the Patni Regulation are expressly made applicable to the tenure and the tenure is described as an itmam. It was argued that, under Section 8, the Regulation might be made applicable by agreement to a lease, for instance, for a long term of yearn. That may be so, but the preamble (Section 1) shows that the Legislature were thinking of leases at a rent fixed in perpetuity.' Moreover, the lease in the present case is not a lease for a long term of years. It is absurd to suppose that the parties could ever have thought of applying the Regulation to a case from year to year. As we have said, the plaintiff's suggestion of a lease from year to year cannot be entertained.
8. Mush was made of the clause in whish the grantees state that, without the grantor's permission, they will not be entitled to transfer the itmam to others. But there is no clause of re entry, Such a condition against transfer is often inserted merely as a foundation for a claim to nazar (or premium) when a transfer is made, and if the condition is not, void or of no effect at all, it does not, in such a case as the present, render an assignment or transfer of the lease inoperative: Nil Madhab Sikdar v. Narattam Sikiar 17 C. 826 : 8 Ind. Dec. (N.S.) 1095, Basarat Ali Khan v. Manirulla 2 Ind. Cas. 416 : 36 C. 745 : 10 C.L.J. 49.
9. Regard being had to the terms of the kabuliyat of 1835 and to the history of the tenures, we are of opinion that they are permanent, heritable and transferable. The true title to the tenure is, therefore, in the defendants and no question of adverse passes, won arises.
10. The appeal fails and must be dismissed with costs.