Iqbal Ahmad, Member
1. The dispute in the suit, out of which the present appeal arises, was with respect to land measuring 100 kanals, that originally belonged to one Nidan Singh. The previous history of this land is somewhat obscure, but this much is certain that sometime after the death of Nidan Singh, proceedings of mutation of names, with respect to this land, took place before Mr. Lawrance, Settlement Officer. Mt. Lachmi, the widow of Nidan Singh, was a party to those proceedings & by an order dated 2-11-1892, Mr. Lawrance finally disposed of those proceedings. The order just referred to, appears to have been in due couree, weeded out; but a note indicating the purport of that order is to ba found in the Goshwara Register of 1984 corresponding to 1928 A. D. copy of which was filed by the pltf.-resp.
2. The entry in the Goshwara Register is as follows:
'By order of Mr. W. Lawrance, Settlement Officer, dated 2-11-1892, mutation is effected in the name of Dharamsala under the management of Baob&n; Singh Chella of Budhaingh with the following condition attached: That produce of the land shall be used for the Langar (free Kitchen). In case it is not used for Langar the property shall revert to Mt. Lachmi or her daughters.'
3. Mt. Lashmi is dead & the suit, which gives, rise to the present appeal, was brought by the sons of one of the deceased daughters of Nidan Singh, & by two of his daughters, who survived Mt. Lachmi, & the sole deft. to the suit was Bachan Singh.
4. In the plaint the entry in the Goshwara, quoted above, was recited, & the claim for possession of the land in dispute was based mainly on the allegation that ''the produce of the said land was for some time past not being used for the purpose of Langar' & that for about eight years before the suit, Bachansingb had 'been patting the said produce to hia own use & purpose instead of utilizing it in the 'Langar' & thus violated the condition.'
In short, the pltfs. case was that the land was put in possession & charge of Baohanaingh for the purpose of its income being utilized for 'Langar,' on he distinct understanding that, if the income from the said land was not utilized for the said purpose, the land would revert to Mt. Lachmi or her daughters. Tha pltfs alleged that, for some years past, the income of the land in suit was being utilized by Bachanaingh not for the purpose indicated above but was being misappropriated by him.
5. In the written statement the allegation contained in the plaint about the income not being utilized for 'Langar' was emphatically denied & a specific issue was framed on the point by the Ct. The issue was as follows:
''Whether the deft, has misappropriated the income & produce of the land, if so, what is its effect.' The trial Ct. recorded a finding on that issue in the pltfs'. favour & held that there was ample 'evidence on the record to show that the deft. has been misappropriating & improperly handling the income & the produce of the land in dispute.'
This finding of the trial Ct. was assailed before the H. C. but the H. C. affirmed the conclusion of the trial Judge on the point. The propriety of that finding has not been challenged before the Board & the argument in the appeal has proceeded on the assumption of the correctness of that finding.
6. The entry in the Goshwara, referred to above, was set out in extenso in para I of the plaint. That para was, however, denied in para I of the written statement, & it was specifically pleaded by the deft. that
'the land of Nidan Singh had been given in Sankalap to the Dbaramaala Batamallu, through Budh Singh unconditionally.'
No issue relating to this assertion of the deft. as to the creation of the Skankalap through Budh Singh was framed by the trial Ct. & there appears to have been no debate or discussion with respect to that allegation in that Ct. The point does not appear to have been argued in the H. C. either. That this is so, is apparent from the following, observation made by the learned Judges of the H. C. in the course of their judgment. They observed :
'It is also not contended (Sic, contested) that It was Mt. Lachmi at whose Instance the transaction took place.'
7. The counsel for the applts. desired to address. the Board on the point but, as the question had not been raised in & decided by the Cts. below, the Board did not allow the matter to be argued before it.
8. Objection to the admissibility of the Goshwara in evidence was raised by the deft. in both the Cts. below but those Cts held that the Goshwara was admissible in evidence. In the discussion of the question of the admissibility or otherwise of that document, the H. C. took note of the fact that in or about the year 1928 some records were weeded out by a Special. Officer, who was charged with the duty of making a memorandum of such of the details of the weeded records as may be necessary. The H. C. held that the Goshwara was admissible in evidence in view of the provisions of Section 35, Evidence Act. The Board is in complete agreement with the decision of the Cts. below on the point. The decision of the case has, therefore, to be approached on the assumption that the order of mutation, passed on 2-11-1892, was subject to the cardinal condition that the land in dispute would revert to Mt. Lachmi or to her daughters in the event of the income not being utilized for the purpose of the 'Langar'.
9. During the pendency of the appeal before the Board, Bachansingh died & his sons, who are the applts. before the Board, were substituted in Bachan Singh's plaes.
10. The learned counsel for the applts argued that even the mutation order, above referred to, did evidence a complete & irrevocable dedication by Mt. Lachmi; & the condition as to the reversion of the land to Mt. Lachmi & her daughters, on the happening of certain contingencies, was repugnant) to, & inconsistent with, such dedication & was therefore, void in law.
11. If an unconditional & effective dedication by Mt. Laohmi was established, no exception could be taken to the argument advanced by the learned counsel. Both the Cts. below, however, fully discussed the effect of the entry in the Goshwara & came to the conclusion that the land in dispute was not dedicated by Mt. Lachmi. After quoting the entry in the Goshwara, the H. C. proceeded to consider the ''nature & character of the transaction in dispute' & summarised its conclusions as follows :
'The language reproduced above would go clearly to show that whatever else the transaction may be it is certainly not dedication of property which requires it to be unconditional & permanent in order to take effect irrevocably.'
It cannot be disputed that the burden of displacing this finding lay on the applts. & in the opinion of the Board, that burden has not been discharged.
12. The Board has given due consideration to the entry in the Goshwara & is not prepared to hold that the conclusion of the H. C. just referred to, was incorrect, it is legitimate to assume that the order passed by Mr. Lawrance was consequent on some appls. presented by Mt. Laohmi. That appln., if available, would have revealed the true nature of the arrangement to which effect was given by that order. It is unfortunate, however, that document is not available & the dispute between the parties has to be settled by reference to the entry in the Gashwara alone.
13. That entry must be read as a whole & it is not permissible to divorce one part of is from the other, if the entry had been only to the effect that the land was put under the managementof Bachan Singh with the object of its usufruct being utilized for tha expenses of the 'Langar'', the argument of the applt's counsel would have been entitled to some if not to great weight. The entry, however, proceeds to declare that the moment the income of the property is not spent on the 'Langar', the property will revert to Mt. Lachmi. This condition was an integral part of the arraugament to which recognition was given by the order passed by Mr. Lawrance. It is, therefore, impossible to conclude that an unconditional 'Shaokalap' or endowment was made by Mt. Lachrai. Indeed, in substance, the effect of the arrangement evidenced by the Goshwara, appears to be no more than that Mt. Lachmi constituted Bachansingh her agent, for the purpose of realising the income of the land & spending it on a particular object, subject to the cardinal condition that that agency will terminate & possession of property will revert to the owner, the moment the income was diverted to some other use.
14. For the reasons given above, the Board in in agreement with the Cts. below & would, accordingly humbly advise His Highness that this appeal be dismissed with costs.