Sir Lancelot Sanderson:
This is an appeal by the plaintiff in the suit, a minor appearing through the Court of Wards, from a decree of the High Court of Judicature at Patna dated 19th November 1930, which reversed a decree of the Additional Subordinate Judge of Hazaribagh dated 23rd June 1928, and dismissed the plaintiff's suit. The suit was for a declaration that a village called Ghutibar became liable to resumption on the cessation of certain services, viz., the cessation of reciting one chapter of the holy book of Srimadbhagwat before the God Saligram from the month of April 1920 A.D., and that thereafter the defendants had no right to remain in possession of the said village in view of the rights of the plaintiff; for a decree for khas possession of the said village; for mesne profits and for any other relief to which the plaintiff might be found entitled. Defendants 1 to 8 filed a written statement denying the discontinuance of the worship, and alleging that they were not in possession of the village and stating that they had no objection to the plaintiff taking possession of the village.
Defendants 9, 12 and 13 filed a joint written statement, in which it was alleged amongst other matters that the grant, to which reference will presently be made, was hardened with the service of reciting Bhagwat, but that the said reciting was not a condition of the grant and that subsequently rents were imposed in lieu of the recitation of Bhagwat. It was further alleged that the said reciting had not been discontinued. Defendants 10 and 11 filed a separate written statement which alleged that the reciting of the Gita (presumably meaning the Bhagwat) was not a condition of the said grant, that the descendants of the grantees were still daily reciting the Gita, and that the survey record showed that the tenure was not resumable. Defendants 9, 12 and 13 contested the suit; the guardian ad litem of defendants 10, 11 and 14 watched the trial; defendant 15 did not appear.
The Subordinate Judge made a decree in favour of the plaintiff for recovery of possession of the said village and made a declaration that the plaintiff was entitled to recover mesne profits from defendants 9 to 15 for the period mentioned in the decree with directions as to the ascertainment of the said mesne profits. He ordered that the plaintiff's costs should be paid by all the defendants. Defendants 9 to 13 appealed to the High Court, which allowed the appeal and dismissed the suit. From this decree of the High Court the plaintiff has appealed to His Majesty in Council. None of the defendants appeared at the hearing of the appeal.
The material facts are as follows: On 16th November 1852, the Maharaja Sambhu Nath Singh granted a sanad in respect of the village Ghuthiwari (called Ghutibar in the plaint) to Guru Sri Eaghavendra. The plaintiff is the successor of the above-mentioned Maharaja and defendants 1 to 8 are the successors of the above-mentioned Guru Raghavendra. The other defendants were joined on the allegation that they were transferees from defendants 1 to 8 or their predecessors. The terms of the sanad are as follows:
"Sri Bhagwat-Sri Saligram.
"Dated 5th Katik Sudi Sambat, 1909. "Kaulkarar patta granted by the most powerful and high in dignity Maharaja Sri Sambhu Nath Singh Bahadur (to the effect following) :
"Whereas one village Ghuthiwari in paragana Rampur, has been granted by me as baiswan (jagir) to Guru Sri Raghavendra for reciting daily one chapter of (Sri Bhagwat) before (Sri Saligram). He and his sons and grandsons shall make recitation (of the same) and enjoy (the proceeds of) the village. The village includes jup, kup (wells), boundary limits, trees and fisheries, etc. Therefore it has been (granted) before me the hazur and Bakhshi Jainandan Das, Bakhshi Gopal Das, Bakhshi Bhawani, Ram Mahta (torn) Das and Bakshi Bhagwan Das.
"(Sd.) Bakhshi Jaikishun Das
at the Ichak Kachahri."
On 3rd June 1856, Raghavendra executed a kabuliyat in favour of the Maharaja Sambhu Nath Singh in respect of the said village. The terms of the kabulyat are as follows:
"Maharaja Sri Shambu Nath Singh Bahadur.
I am Raghavendra Guru, resident of Gurubara, pargana Chai, Ilaka Hazaribagh.
I have been granted by the hazur (Maharaja Sri Shambu Nath Singh Bahadur) mauza Ghuthiwari, one village in pargana Rampur, as baiswan in lieu of services, and I have to pay for the same Rs. 12-15-0 in Company's coin in cash. I do hereby declare, and give out in writing that I shall without objection pay off the same according to the instalments year after year at the kachahri of (Maharaja Sri Shambhu Nath Singh Bahadur).
Details of Instalments
Asin, Kartik, Aghan, Pus, Magh, Phagun, Chait, Baisakh.
I shall pay off the money according to the above instalments. In case of default (in payment) of the instalments, shall pay the money with interest thereon. If the rent falls into arrear or I be removed from service, then I shall give up possession of the land (village), I have therefore of my own accord executed this kabulyat at the kachahri of-so that it may be of use when required. Dated the 1st Jeth Sudi Sambat, 1913.
(Sd.) Chaudhari Jagu Ram at the Ichak kachahri.
Executed this kabulyat which is correct.
(Sd.) Baghavendra Guru."
In the survey khewat, which was stated to have been made in A.D. 1912, the village is entered as not resumable : the yearly rent is entered as Rs. 12-15-0 and the following appears in the remarks column :
"By virtue of unregistered (sada) sanad dated 5th Kartik Sudi. 1909, Sambat, granted by Raja Sambhunath Singh as to Ragho Ind. Guru."
By reason of this entry in the survey record the presumption arises that the particulars therein recorded were right and that the jagir granted by the sanad to Raghavendra was not resumable. But such presumption may be rebutted, and the first question is whether the plaintiff, on whom the onus rests, has succeeded in rebutting the above-mentioned presumption.
Before considering this question there is another document, to which reference should be made. It appears that on 11th March 1889, Govindra Indar Guru and Lakhav Indar Guru, sons of Raghavendra Guru, executed a mukarrari lease in respect of the said village in favour of Gannu Singh and another, who were the ancestors of defendants 9 to 15, at a fixed annual rental of Rs. 145. Reference therein was made to the fact that Rs. 12-12-0 was payable by the lessors to the Ramgarh estate. This sum was obviously a mistake for Rs. 12-15-0. It was alleged that some of the lessee defendants purchased the reversion in A.D. 1912. There was an issue at the trial as to whether the above-mentioned service had been discontinued and when. Upon this issue the Subordinate Judge accepted the evidence given on behalf of the plaintiff and held that the service, on which the jagir in suit was held, had been discontinued since May 1919, and that finding of fact must be assumed as correct for the purpose of this appeal.
Both the Courts in India accepted the above-mentioned sanad and kabulyat as genuine documents and as admissible in evidence, and the question whether the plaintiff has succeeded in rebutting the presumption created by the entry in the survey khewat, and proving that the jagir granted by the sanad was resumable really depends upon the true construction of these two documents, for there was no verbal evidence of any materiality on this question.
For the present purpose the two documents must be read together. Although the sanad was granted in 1852, and the kabulyat was executed in 1856, it is clear that both of them relate to the conditions on which the village was held by Raghavendra. In the sanad there is no reference to any rent, and the grant was made to the grantee for the purpose of ensuring that the grantee, his sons and grandsons should make the recitation therein prescribed daily. The question is whether this was a grant burdened with the above-mentioned service or whether the grant was conditional upon the service being performed. It is recited in the kabulyat that the jagir in the village had been granted by the Maharaja in lieu of services and that the grantee had to pay the rent therein mentioned according to the instalments.
The terms of the kabuliyat point to the inference that the rental had been imposed after the grant of the sanad had been made. It was therein provided that if the rent fell into arrear or the grantee be removed from service he would give up possession of the village. This provision shows conclusively that in some material particulars the entry in the survey khewat is not correct, for although the entry refers to the sum of Rs. 12-15-0 as the yearly rent, there is no reference to the provision that the grantee was bound to give up possession of the village in the event of the rent falling into arrear. It follows therefore that the statement in the entry in the survey khewat that the village was not resumable was incorrect; Further, although the entry in the survey khewat mentions the sanad of 16th November 1852, there is no reference to the services to be rendered by the grantee and there is no reference to the terms of the kabuliyat at all. Their Lordships therefore are of opinion that the presumption arising from the entry in the survey khewat that the jagir in the village was not resumable has been rebutted.
It remains to be considered what is the true construction of the two above-mentioned documents. The expression in the kabuliyat “or I be removed from service" must refer to the service specified in the sanad, namely, the reciting of the chapter from Bhagwat daily.The terms of the kabuliyat show that the parties thereto intended that, although a rent was to be paid, the performance of the above-mentioned service was to be continued as a condition of the grant. But it was also provided that the grantee might be "removed from service." This is an ambiguous phrase, but it must at all events mean that the parties contemplated that the performance of the service might cease either at the instance of the grantor or otherwise, in which case possession of the village was to be given up to the grantor.
Their Lordships are of opinion that the true construction of the two above-mentioned documents is that the performance of the said service was a condition of the grant, and that inasmuch as the said service was discontinued in May 1919, the plaintiff became entitled upon such discontinuance to obtain possession of the said village. The defendants, who contested the suit and based their claim upon the mukirrari lease of 11th March 1889, and their alleged subsequent purchase of the reversion, can be in no better position than their lessors, and the plaintiff is entitled to a decree against them. For these reasons the appeal must be allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge restored. Defendants 9, 10, 11, 12 and 13 who were thy appellants in the High Court, must pay the plaintiff's costs in the High Court and of this appeal. Their Lordships will humbly advise His Majesty accordingly.