PRIVY COUNCIL

                    Raja Durga Prashad Singh

                    Vs.

                    Tribeni Singh and others

                             P.C.A. No. 133 of 1917
(Lord Shaw, CJ, Phillimore, Bart, Sir John Edge and Mr. Ameer Ali. JJ)

                    26.7.1918

                    JUDGMENT

Lord Phillimore. J

1. The suit to which this appeal relates is brought to recover certain lands formerly
held under Ghatwali tenure, in the zamindari of Kharakpur in Bengal.

2. These lands were originally held by the zamindar under the ruling power upon
terms that the zamindar should perform by himself or his tenants the duty of guarding
the ghats or passes against marauders, and preserve the peace of the district and
discharge other police services.

3. In the year 1838 the Government, being of opinion that these duties could be and
indeed were being better performed by their own officers, and that the Government
was entitled to resume these lands, as the services for the performance of which they
were originally held were no longer needed, claimed to resume them accordingly.

4. Litigation ensued, and the Government was successful in the Courts in India, but
the decision was reversed on appeal to the Privy Council, and the Raja zamindar was
quieted in his possession.

5. The case was decided in 1855, and is reported as Rajah Lilanand Singh v. The
Government of Bengal,1

6. As it was still possible that the Government might insist upon the zamindar
performing certain of the original duties, a compromise was entered into, and a
settlement was arrived at by which the zamindar paid a jumma of 10,000 rupees per
annum, and was released from further performance of these duties.
7. Thereupon he in turn endeavored to resume their tenures from the several Ghatwals
on the ground that their services were no longer required. This led to much litigation
with varied fortune. In two cases reported together in the supplemental volume of
Indian Appeals, p. 181, the first being Rajah Lilanand Singh v. Thakoor Munorunjun
Singh2 , the Ghatwals were successful both in India and before the Privy Council. In a
third case heard at the same time the Ghatwal got better success before the Privy
Council than he had in India. These cases were decided in 1873. Further, it appears
from the judgment of the Subordinate Judge that there were some other cases
apparently not reported, in which the judgments in India were in favour of the
zamindar, but the decisions in the Privy Council in favour of the Ghatwals.

8. In the case of the particular lands now in dispute, they were held by four Ghatwals,
and the decision went against them and in favour of the zamindar in the High Court at
Calcutta, and they appear to have neglected to appeal in time; but on learning that
other Ghatwals in a similar position had been successful before the Privy Council,
they became dissatisfied, and were endeavouring to see if they could not by some
means reopen the question, when a compromise was arrived at, and the zamindar gave
a pottah to the four Chatwals granting the lands in perpetuity at an annual uniform
jamma of rupees 1,031.

9. This pottah is dated tho 6th July, 1873. The grantees Dharmu Roy, Chaman Roy
Gokul Roy and Mangal Rey are described in it as former Ghatwals of the mouzahs
named in the pottah, and it is recited that "the said mouzahs, original with
dependency, had from the time of the former Rajah been in the possession and
occupation of you and your ancestors by virtue of Ghatwali right." The litigation and
the agreement of the parties to come to an amicable settlement are then recited, and
the Rajah proceeded to make the grant in the following words : "Therefore I have
made in favour of you the permanent istamrnri mokurari settlement in perpetuity,
descendible to progeny and generation after generation in respect of Mouza Khadwa,
etc., original with dependencies in existence from before * * * at an annual uniform
Jamma of Rupees. 1,031."

10. The four grantees thereafter dealt with the property as their own, as property held
by each severally, in respect of his 4-anna share as a member of a Hindu family,
holding jointly with his sons and grandsons.

11. The four grantees, as managers or kartas of a Hindu family, jointly made
mortgages and leases, and, in particulars, in the year 1884 they, with their sons and
other descendants, executed two mortgages in favour of Shitabi Singh. Upon these
mortgages decrees were ultimately obtained, and the villages were sold in execution to
the first party defendants, whose representatives are the respondents appearing before
the Board to support the judgments under appeal. Delivery of possession was made on
the 6th March, 1897. It should be added that since the date of delivery the first party
defendants or their predecessors have been in possession.

12. The case made for the plaintiff appellant accepts a large part of that of the
defendants respondents. The pottah is admitted, as also are the apparent title thereby
created in favour of the four grantees, Dharmu, Chaman, Gokul and Mangal, the title
deduced from them to the first party defendants, and the possession by the latter from
the date of delivery upon the sale. The case made is that the pottah was granted to the
four grantees as representative of one great family descended from a common
ancestor, and that all the male descendants have beneficiary interests in the several
mouzahs according to their respective shares per stripes, and that the plaintiff is the
assignee of interests of several of these descendants in respect of shares amounting to
7 annas and a fraction, or nearly half. A short pedigree will show the origin and nature
of the several interests which he claims to have bought:

       On the assumption made on behalf of the plaintiff, Rupdeo, a brother of
       Chaman, and his descendants have a claim to some beneficiary share,
       presumably a 1-anna share. Chintaman, brother of Dharmu and uncle of
       Chaman and his descendants would have a 2-anna share; in the other line, Ajit
       and his descendants would have a 4-anna share, and Chauthi and his
       descendants a 2-anna share. The plaintiff has bought up all these shares, except
       those of some of the descendants of Chauthi.
13. Lachman Roy, the common ancestor, flourished about 1750. He was probably in
his day the Ghatwal. His son Bahore was Ghatwal; so was Bahore's son Ajit. Sukdeo,
the grandson by the other line, was Ghatwal apparently with Bahore, and later on with
the latter's grandson Anandi. In 1854 Digan, father of Mangal, was Ghatwal in
conjunction with some members of the other line, probably Dharmu; and then in 1864,
when the zamindar sought to eject them, the four grantees were the Ghatwals.

14. The plaintiff suggests that they were chosen as the representatives of the several
branch families, and held their shares of the family estate on behalf of all the male
members. This case is rested upon three grounds: the nature of the Ghatwali tenure as
determined by the several decisions of the Privy Council, the alleged enjoyment by the
beneficiaries, of their respective shares from the grant of the potlah to the sale by the
Court, and upon an ekrarnama executed on the 22nd September, 1873, that is between
two and three months after the pottah.

15. As regards the first ground, there are several decisions of the High Court and of
this Board on the nature of this tenure.

16. Some have already been cited, and in addition special reference may be made to
Nilmoni Singh v. Bukranath Singh3 decided in 1882, a case not so much in point as the
Ghatwali lands were in another zamindar, and to Kali Pershad Singh v. Anand Roy4
decided in 1887, concerning other lands in the zamindar of Kharakpur.

17. The result of the decisions is that the Ghatwali tenure is ordinarily hereditary, the
estate descending to such male member of the family as the zamindar approves as
competent, and that it is the right of the family so long as they have male members
competent to perform the duties, to have one or more of them appointed Ghatwals. It
was certainly an advantage to the whole family that one of their members should hold
the office and the tenure. He could put other members of the family into minor offices
and grant them subordinate interests commonly called jotes, and he could and would
generally provide for the family in the manner expected of its head.But this is a long
way off making him a trustee for the family or treating the Ghatwali estate as
possessed by the family and reducing the Ghatwal to the position of karta or managing
head of the family.Their Lordships do not find that the incidents of Ghatwali tenure
are such as to give the family any rights over the property while it is in the hands of
the Ghatwal,and they find themselves upon this point in full agreement with the
Courts in India.So far, therefore, if the assumption were to be made that the scheme of
the pottah was to preserve family rights, there would still be no reason for holding that
they extended so as to give any beneficiary interest in the mouzahs to the male
members of the family other than the actual grantees.

18. The plaintiff, however, relied upon an ancestral actual possession and the receipt
of their share of the rents and profits by his vendors or their predecessors-in-title, and
he called several witnesses to depose to this. He laboured under an initial difficulty in
stating what those shares were, as they had been variously stated in his plaint and in a
previous plaint in a suit brought by his vendors in March 1898 and discontinued by
them, it was said, on account of poverty, and again differently stated in other
proceedings. But it is unnecessary to discuss this matter at length. The Subordinate
Judge who saw and heard the witnesses for the plaintiff did not accept their testimony,
and the High Court saw no reason for differing from him. It was contended on behalf
of the plaintiff that the Judges of the High Court made no independent examination of
this evidence, and that their Lordships are therefore not bound to treat the case as one
of concurrent findings of fact, and their Lordships permitted the counsel for the
plaintiff to read and comment upon this evidence. But the result is that their Lordships
see no reason for differing from the judgment of the Subordinate Judge upon this
point; and it must be taken that the plaintiff did not succeed in proving that his
vendors or their predecessors-in-title were ever in possession or in the enjoyment of
shares in the rents and profits since the grant of the pottah.

19. There remains for consideration the argument for the plaintiff founded upon the
ekrarnama. This argument was rejected by the Subordinate Judge and by the High
Court, and their Lordships as it will be seen have come to the same conclusion in the
end. But the point is not altogether easy to decide, for there is prima facie some weight
in the contentions founded upon this document.

20. The grantor is one of the four grantees under the pottah, Dharmu Roy. He
describes himself as son and heir of Sukdeo Roy and recites that the four mouzahs
form an ancestral Ghatwali mahal which have "since olden times been in our
possession and occupation." He then recites what the Rajah had taken possession of
them and done away with the Ghatwali tenure and that thereafter by amicable
settlement the mouzahs were obtained "under a mokurari pottah, at an annual Jamma
of Company's 1,031 rupees, in the name of the four grantees."

21. The document proceeds as follows :-

       "As this mahal is our old ancestral Ghatwali, and although our names are
       recorded in the Government Office, etc., yet all the heirs, who are the heirs of
       the common ancestor, have been in equal possession thereof in the moffusil, and
       all the heirs have been and are supported and maintained thereby in the
       moffusil, and whereas one set of those moffusil co-sharers, namely, Ganpat Roy,
       Gurdayal Roy, Gopi Roy, and Sri Roy, the four brothers and the own nephews of
       me, Dharmu Roy, is not satisfied unless their names are recorded or they obtain
       a deed, therefore, of my own accord and free-will, with a view to put a stop to
       disputes in future, I do hereby make a valid declaration and give out in writing
       that, after paying the rent mentioned in the said mokurari pottah and the village
       and Court expenses, Ganpat Roy, Gurdayal Roy, Gopi Roy, and Sri Roy shall
       get 1 anna share out of the share of me, Dharmu Roy, and the said four brothers
       will devide equally amongst themselves the said 1 anna share; that although the
       name of us, the said mokuraridars, are recorded in the suddar serishtar of the
       said Rajah Saheb, still the said Ganpat Roy and others, the four brothers, shall
       always continue to hold possession in the moffusil to the extent of 1 anna share,
       and that all the co-sharers and co-partner shall have to pay all expenses which
       have been incurred in obtaining the mokurari pottah of the aforesaid mouzahs,
       as also the expenses which may be incurred in future in connection there with,
       in proportion to their respective shares."
22. The other three grantees were witnesses to the execution.

23. It appears that when the document was presented for registration, Dharmu opposed
the registration stating that he had not executed the deed and that he did not know how
to write, but that eventually it was registered under an order of the District Judge.
Dharmu, however, was illiterate and had signed by the pen of a scribe.

24. It could not be disputed that this document constituted an admissible and relevant
piece of evidence, and that both the recitals and the operative part have to be
considered. But the two do not stand upon the same footing. The recital that all the
heirs of the common ancestor have been in equal possession of the mouzahs is larger
than is necessary for the operative part of the deed; and it may be that whereas
Dharmu was content to settle a 1-anna share for the benefit; of the sons of his
deceased brother, and the deed in its operative part was therefore a true expression of
his will and rightly registered, yet that he being illiterate had not understood or
intended the terms of the recital, or that his co-grantees did not approve of them, and
that this was the explanation of the opposition to the registration.

25. The draughtsman may have thought it expedient to insert something in the nature
of a consideration so as to take the deed out of the category of voluntary settlements,
and he may have been carelessly or wrongly instructed.

26. The learned Subordinate Judge endeavored to cut the knot by inferring that some
other members of the family fraudulently introduced this recital. But there is no
warranty in the evidence for inferring fraud and no suggestion of it appears to have
been made to any of the plaintiff's witnesses. All that can be said is that it is possible
that such was the case.

27. There is, however, a stronger comment which was also made by the Subordinate
Judge and that is that the recital is not only larger than the operative part, but
inconsistent with it. On any theory of descent per slirpes the descendants of Sukhdeo
would have an 8 anna share and each of the four sons a 2-anna share. The four sons of
Chintaman in whose favour the deed is made would have their father's 2 annas and
Dharmu would have 2 annas and no more. But he is parting with 1 anna share only
and keeping 3, on the theory, for himself.

28. The suggestion made on behalf of the plaintiff to meet this difficulty was that it
was intended that the other grantee of the Sukhdeo line, Dhaman, son of Lachman,
should give out of his 4 annas a second anna to the sons of Chintaman, and apparently
that Dharmu and Ghaman should further contribute a 1 anna share each for their
brother Rang Lal who was then living and ultimately died childless.

29. On this theory Chaman would further have to denude himself of another anna
share to his brother Rupdeo whose descendants are some of the vendors to the
plaintiff.

30 Ingenious as these suggestions are, they are without warrant in the evidence or the
documents are wholly fanciful.

31. This being so, the recital in the ekrarnama, though not without weight and not to
be wholly put aside as a piece of evidence cannot, in their Lordships' opinion, as it did
not in the opinion of the Subordinate Judge, or in that of the High Court, outweigh the
mass of evidence, which makes against the very difficult legal title which the plaintiff
seeks to establish.

32. It remains, however, to consider the operative part of the document, which is in
terms a grant of a 1-anna share to the sons of Chintaman, through whom among others
the plaintiff claims, and to see whether though the plaintiff fails in his claim to the
larger share (7 annas and a fraction) of the estate, he yet could succeed in respect of a
1-anna share. Many answers have been made to this claim. It is not that put forward
by the plaintiff in his plaint. He did not rely upon the ekrarnama as a conveyance of
this 1-anna share, but as a declaration against interest, or one by an occupier
qualifying his estate, establishing the general claim of the family. The document was
conditional only. If, as is probably the right construction, the pottah is a grant to the
four grantees each taking in respect of their separate shares as members of a joint
Hindu family with their sons and grandsons, Dharmu could not convey away a part of
his estate to the prejudice of the other members of his joint family, and the deed could
only operate quoad his life interest, which has expired.

33. It was suggested as an answer to this last argument that it would be within the
authority of the karta or head of a family to make compromises.
34. But the one conclusive answer to any case in respect of this 1 anna share is the
Statute of Limitations. The learned Subordinate Judge in his very careful judgment,
considered this plea, but upon the whole rejected it on the ground that the suit was
instituted on the 16th March, 1908, and the date from which the twelve years began to
run was when the auction purchasers took delivery of possession, that is the 6th
March, 1897. and the High Court in the view which it took of the case found it
unnecessary to express any opinion upon this plea.

35. Inasmuch, however, as none of the vendors to the plaintiff or their predecessors-in-
title have been in possession of any shares in the property, including therein this 1
anna share, it must be taken that the statute began to run at least from the time when
the sons of Chintaman did not receive the benefits which the ekrarnama purported to
give them, that is, from the year 1873.

36. Upon the whole, therefore, the plaintiff has failed to prove title to any portion of
the property in suit, and the decrees of the Subordinate Judge and the High Court
dismissing his suit were right, and their Lordships will humbly recommend His
Majesty that the appeal should be dismissed with costs.

Appeal dismissed.

Cases Referred.

   1. [1855] 6 M.I.A.101 : 4 W.R.77 : 1 Suther 248 : 1 Sar 505 (P.C.)
   2. [1873] I.A.Sup.Vol.181 : 13 B.L.R.124 : 3 Sar. 238 (P. C.)
   3. [1882] 9 Cal. 187 : 9 I.A.104 : 4 Sar. 335 [P.C.]
   4. [1887] 15 Cal. 471 : 15 I.A.18 : 5 Sar.121 : 12 Jur.172 [P.C.]