dedol-hf/india-case-legal-rag huggingface dataset:
with  plaintiff  No. 1 (Ram Narain) and, therefore,  he  was
also  joined in the suit. Lastly, we have got the  following
statement  in  a plaint in another mortgage  suit  (Ex.  K),
which  was  filed by Ram Narain and Ram Saran  in  the  year
1923:--
    "That  the plaintiffs are members of a joint family  and
carry on money-lending business jointly. Mortgage bonds  are
executed in favour of any member of the family. Accordingly,
the mortgage bond sued upon was executed in favour of plain-
tiff No. 1 alone. But both of the plaintiffs have got  claim
thereto."
    It  may be pointed out, first of all, that these  state-
ments  occur in plaints filed in mortgage suits arising  out
of  the money-lending business which was carried on  by  Ram
Narain  and  Ram Saran jointly. The business being  a  joint
business, even if the bonds were taken in the name of one of
the  creditors, it was necessary, to avoid all  risks,  that
both  of  them should join as plaintiffs.  It  was  for  the
purpose  of explaining as to why the bond sued upon did  not
stand in the name of both the plaintiffs, that this explana-
tion was added to each one of these plaints.  In the  second
place, it may be noted that it was expressly stated in these
plaints that Ram Saran had also an equal share in the  mort-
gage money. It would be unusual in, and quite  inappropriate
to, a transaction relating to a Mitakshara joint family,  of
which  the  karta or manager can by himself file  suits  and
conduct transactions, to specify that another coparcener has
got  so  much share in the claim or property.  Thirdly,  the
expression  "joint family" can certainly be used in a  legal
as well as in a loose sense, and it would not be improper in
the circumstances of the present case to hold that it was in
fact  used  in a loose sense. The deposition of  Ram  Narain
given  in a mortgage suit (Ex. N)  does not  really  improve
the position. In his deposition Ram Narain states as follows
:--
616
    "Ram  Saran Sahu is my nephew and we live jointly. I  am
karta of my family."
    Here again the deposition being given in a mortgage suit
only for the purpose of justifying the inclusion of the name
of  Ram  Saran as a co-plaintiff, no undue stress  could  be
laid  upon  the words used. Mr. Bakhshi Tek Chand  tried  to
make much also of the statements made by Sumitra, the mother
of  the plaintiff, both in the written statement  which  she
filed in the suit brought against the defendants by  Imrit's
son and also in the deposition on commission which was given
by her in that suit. It is to be noticed that the  plaintiff
was a party to this suit but later on Ram Saran and his sons
had  her name expunged  from  the suit altogether  in  order
that there may be a petition of compromise between them  and
the  plaintiff in that suit in her absence. It would  appear
from the deposition given on commission by the lady in  that
suit that she was completely under the influence of  defend-
ant No. 1 and her sons. The High Court, in our opinion,  has
rightly laid stress on some portions of her deposition where
she made certain admissions even against her will. One thing
said  in  her deposition was that there  were  really  three
houses  and  not two and this fits in with the  story  of  a
complete  partition. In the second place, she admitted  that
the  separation of Imrit took place during the  lifetime  of
Sheo  Narain. That the stock of knowledge of this  lady  was
very  small  and she could be made to say  anything  as  the
defendants liked is apparent from the fact that she  herself
did  not know what was north, south, east or west.  She  did
not  know how to count money and did not know even  how  her
husband  conducted his business. In such  circumstances,  we
feel  unable  to attach much importance to the  evidence  of
this lady, though it is somewhat surprising that she  should
have  made  any statement against the interests of  her  own
daughter.
    The  two other classes of documents which  are  relevant
for  our present purpose and to which reference was made  by
the  learned counsel for the appellants are  the  settlement
records and the account books.  The
617
settlement  records  Exs. 4 and R are not, in  our  opinion,
decisive  of the point in issue. The records show that  some
lands  were  recorded in the name of Ram  Narain  alone  and
others were recorded in the names of both Ram Narain and Ram
Saran  with a further remark that they have equal shares  in
the properties. If really the family was joint from the very
beginning  and Ram Narain was the karta, then all the  lands
would have been recorded in  the  name of Ram Narain  alone.
The  fact that some lands were recorded in the name  of  Ram
Narain  alone,   while others were recorded in  their  joint
names, clearly indicates that it  was  not a  joint   Mitak-
shara  family  in  the proper sense of the  word.   In  this
connection reference may be made to two important  documents
to  which just importance has been attached by  the  learned
Judges of the High Court.  These are Exhibits G and 1.   The
first is a deed of relinquishment of claim by Ram Narain  to
Shri Thakur Lachhmi Narayan Swamiji Maharaj. The document is
dated  9th  of November, 1899, and by  this  instrument  Ram
Narain  relinquished  his interest,  in  certain  properties
which  he purchased in his own name, but for the benefit  of
the  deity.  It is stated in this document that  Ram  Narain
would  remain manager of the temple during his lifetime  and
shall  make settlement and management of the  properties  in
such  a  way as he thought proper and after  his  death  Ram
Saran  Sah, son of his full brother, and after him the  heir
and representative of  Ram Saran Sah  would be the managers.
Ram  Saran was an attesting witness to this  document.  This
clearly shows that Ram Natgin had property of his own  which
he was disposing of in any way he liked to the knowledge  of
his nephew who is alleged to be his joint coparcener. If  it
was an endowment created by the family itself, there was  no
necessity  of laying down that, after the death of  Ram  Na-
rain, his nephew would become the manager as the managership
would  descend  in  the line of Ram Saran  as  a  matter  of
course.  By the subsequent document (Exhibit 1),  which  was
executed shortly before the death of
618
Ram  Narain,  this  arrangement was changed  and  a  certain
Mahant,  namely,  Mahant Goswami Hirdaya  Saran  Deoji,  was
appointed  manager  of this endowed property.   This  proves
that  Ram Narain did purport to exercise absolute and  unre-
stricted power of disposition over his properties in any way
he  liked, and that the properties except those  which  were
jointly acquired by himself and his nephew out of the  prof-
its  of the     joint business, belonged to him  absolutely.
As  regards   the account books that have been  produced  in
this case, the learned Judges of the High Court, it appears,
are not quite correct in saying that there were two sets  of
accounts  kept side by side, one in the name of  Ram  Narain
and  other  in the name of Ram Saran. At least  the  learned
counsel  appearing for the respondents could not satisfy  us
that this was in fact the true position, We think,  however,
that the entries in the account books to which our attention
was  drawn by the learned counsel for the appellants do  not
really  improve  the defendants' case.  We  agree  with  the
learned Judges of the High Court in holding that the entries
are inconclusive and at the best equivocal. Thus, for  exam-
ple, certain expenses were debited to Ram Narain on  account
of  the costs incurred by Ram Saran and others in  going  to
Puri.  It  is not known who were the  persons  who  actually
accompanied  Ram Saran to Puri and whether or not they  were
the  wife  and daughter of Ram Narain himself.   Then  again
certain amounts were debited on account of Sataisa  ceremony
but nothing is elicited as to whose Sataisa ceremony it was.
Certain-expenses  in  connection with the  marriage  of  Ram
Satan's  daughter  undoubtedly find place in  these  account
books  and  they are debited against Ram  Narain.   We  have
looked into the entries ourselves. They relate to very small
sums  of  money consisting mostly of  expenses  incurred  in
connection  with invitation of guests and presents  received
from them. They are not marriage expenses proper and in  the
absence  of better evidence we are unable to say  that  they
support the defendants' story of there being a joint  family
in the true sense of the expression.
619
    The  result is that on the whole we are  of.the  opinion
that the view taken by the learned Judges of the High  Court
is  correct and that there was in fact a separation  of  all
the members of the family and not of Imrit alone during  the
lifetime of Sheo Narain himself. As no case of re-union  has
been  attempted to be made on behalf of the defendants,  the
facts  that Ram Narain and Ram Saran lived in  commensality,
carried  on  business together and  acquired  properties  in
their  joint  names, or that their names  were  recorded  as
joint holders of properties in the settlement records  might
at least create a tenancy in common between them, but not  a
joint  tenancy under the Mitakshara law which would  attract
the  law of survivorship.  Defendant No. 1,  therefore,  did
not  acquire  any right by survivorship  to  the  properties
which were owned by Ram Narain and the plaintiff is entitled
to succeed on this ground.
    We are unable, however, to affirm the decree in the form
in which it has been made by the High Court in favour of the
plaintiff. The plaintiff laid claim to the properties  which
are  specified in schedules I to IV of the plaint. In  para-
graph 21 of the written statement, it was expressly  averred
by the defendants that the list of properties and the valua-
tion given at the foot of the plaint were incorrect. Some of
the properties, it was  said,  were non-existent. Some debts
had  become  time-barred and claims with regard  to  certain
others  had  been dismissed.  Then,  there  were  properties
owned jointly by Ram Narain and Ram Saran to the entirety of
which  no claim could be laid by the plaintiff.   Upon  this
defence,  issue No. 7 was raised in the trial Court  and  it
involved a consideration of the question as to what  proper-
ties the plaintiff could claim to recover possession of even
if she succeeded in establishing that her father died  sepa-
rate.  The trial Court did not think it necessary to  decide
this issue, as it dismissed the plaintiff's suit altogether.
The High Court, it is to be seen, has given a decree to  the
plaintiff  in  terms of her prayers in  the  plaint  without
considering  this matter at all.  It may be further  pointed
out that the plaintiff in her plaint claimed
620
Rs.  6,600 as past mesne profits and there was a prayer  for
recovery  of future mesne profits as well. What  amount,  if
any,  the  plaintiff would be entitled to recover  as  mesne
profits and on what basis mesne profits should be calculated
formed the subject-matter of issue No. 8 and that issue  has
also  been left undecided by the High Court.  In these  cir-
cumstances, although we agree with the decision of the  High
Court  that  the plaintiff's father did  die  separate  from
defendant No. 1 and consequently the latter was not entitled
to  claim any property by right of survivorship,  still  for
the  determination of the properties with regard to which  a
decree for possession could be made and also for  ascertain-
ment  of  mesne profits, the case must be sent back  to  the
High Court.
    The  result is that we affirm the findings of  the  High
Court  and remand the case in order that it may be  disposed
of in accordance with law after determination of issues Nos.
7  and 8.  It would be open to the learned Judges  to  remit
the issues to the trial Court for findings on the points  to
be  arrived  at  on the evidence on the record  or  on  such
further evidence, as the parties might be allowed to adduce.
The  plaintiff respondent will be entitled to costs  of  the
appeal. Further costs would abide the result.
                                   Case remanded.
Agent for the appellants: Tarachand Brijmohanlal.
Agent for respondent No. I:R. C. Prasad.
621
PETITIONER:
THAKUR RUDRESHWARI PRASAD SINHA
        Vs.
RESPONDENT:
SRIMATI RANI PROBHABHATI AND OTHERS
DATE OF JUDGMENT:
26/10/1951
BENCH:
DAS, SUDHI RANJAN
BENCH:
DAS, SUDHI RANJAN
SASTRI, M. PATANJALI
MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION:
 1952 AIR    1            1952 SCR   64
ACT:
    Ghatwali tenures --Nature and incidents--Alienability of
Zemindari Ghatwalis--Taluka Kakwara whether alienable.
HEADNOTE:
Taluk  Kakwara  was in its origin a  Zemindari  Ghatwali
tenure  and continued to be so, and was in fact  treated  as
such  ever  since.  Even if by virtue  of  Captain  Browne's
Sanad it became     a Government Ghatwali tenure, then under
the  Sanad of Raja Kadir Ali or after the Permanent  Settle-
ment at any rate, it became a Zemindari Ghatwali and as such
alienable with the consent of the Zemindar according to  the
custom of Kharakpur judicially recognised
[Nature and incidents of Ghatwali tenures discussed].
JUDGMENT:
CIVIL APPELLATE  JURISDICTION:  Civil Appeal No. 75 of 1950.
    Appeal from the Judgment of the High Court of Judicature
at  Patna  dated 22nd November, 1944, in Appeal No.  238  of
1940  arising  out of order dated 13th July,  1940,  of  the
Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939.
The  facts of the case appear from the judgment. The  appeal
was originally preferred to the Privy Council and was subse-
quently transferred and heard by the Supreme Court.
    N.C. Chatterjee  (B. Sen, with him)  for  the appellant.
        B.C  De (Raghunath Jha, with him) for  the  respond-
ents.
65
    1951. October 26.  The Judgment of the Court was  deliv-
ered by
    DAs J.--This appeal has come up for hearing before us on
transfer  from  the  Privy Council.  The  appellant  is  the
present holder of Taluk Kakwara which appertains to  Mahalat
Kharakpur.  The respondents represent the Banaili Raj  which
has also acquired the Mahalat of Kharakpur.  The respondents
obtained a decree for Rs. 11,587-14-6 against the  appellant
for  arrears of rent and cess and applied for  execution  of
their  decree by the attachment and sale of  Taluk  Kakwara.
On  August 29, 1939, the appellant judgment-debtor filed  an
objection  under section 47 of the Code of  Civil  Procedure
alleging  that as Taluk Kakwara was held on Ghatwali  tenure
it  could not be sold in execution of a money decree.   This
objection was rather too wide, for all lands held on Ghatwa-
li tenure were not necessarily inalienable.  Indeed, in Kali
Pershad Singh v. Anund Roy(1) which related to the  Ghatwali
Mahal of Kharna within the Mahalat of Kharakpur the evidence
clearly established a number of instances in which there had
been  unquestioned transfers and sales applicable to  Mahals
in  Kharakpur and it was held by the Privy Council that  the
true  view to take was that such a tenure in  Kharakpur  was
not inalienable, and might be transferred by the Ghatwal  or
sold in execution of a decree against him, if such  transfer
or  sale  was assented to by the Zamindar.  A  sale  at  the
instance  of the Zamindar in execution of a decree  for  ar-
rears  of  rent necessarily implies the  existence  of  such
assent.  In  the  later case of Narayan  Singh  v.  Niranjan
Chakravarti(2) which related to the Ghatwali Mahal of  Hand-
wa,  Lord Sumner recognised that the decision of  the  Privy
Council in the Kharna Ghatwali Mahal case was fully support-
ed  by  the  evidence adduced in that  case  and  that  that
authority had been repeatedly followed and applied in India,
and,  so  far as the reports showed, without  proof  of  the
custom  being  required over again.  Lord  Sumner,  however,
pointed out that
(1) (1887) L.R. 15 I.A. 18; I.L.R. 15 Cal. 471.
(2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat. 184; A.I.R. (1924)
P.C. 5.
      9
66
it  was plain that as the custom depended on proof,  and  as
the tenure in question was one in the Zamindari of Kharakpur
and under its Zamindar, it could have no reference to  Ghat-
wali  tenures not under him nor forming part of his  Zamind-
ari.  The Privy Council in the later case referred to  above
saw no ground for thinking that the custom of Kharakpur  had
any  application  to Ghatwali tenures, which,  like  Handwa,
were  independent  of the Kharakpur Zamindari,  even  though
they  might  be not far off Kharakpur. In short, it  may  be
said  to be well established--and the contrary has not  been
urged  before  us  --that Ghatwali tenures  held  under  the
Zamindar of Kharakpur were, by custom judicially recognised,
alienable  with  the assent of the Zamindar  while  Ghatwali
tenures  like Handwa held under the Government  direct  were
inalienable. In this state of the authorities, the appellant
judgment-debtor  on May 31, 1940, filed a fresh petition  of
objection  under section 47 of the Code claiming that  Taluk
Kakwara  was held under a Government Ghatwali  tenure.   The
principal  question  for determination  in  those  execution
proceedings   was  whether  Taluk Kakwara was  a  Government
Ghatwali,  as alleged by the appellant  judgment-debtor,  or
was  a Zamindari Ghatwali held under themselves, as  claimed
by the Respondents decree-holders.
    The  learned Subordinate Judge held that  Taluk  Kakwara
was  a  Zamindari Ghatwali under the Raja of  Kharakpur  and
overruled the  objection of the judgment-debtor.  The  judg-
ment-debtor appealed to the High Court.  The appeal came  up
for hearing in the first instance before a Bench  consisting
of  Manohar Lal and Shearer JJ. Manohar Lal J. came  to  the
conclusion that Taluk Kakwara was a Government Ghatwali  and
was  inclined to allow the appeal. Shearer J. took the  view
that while Taluk Kakwara was at one time a Government  Ghat-
wali, it ceased to be so and became and remained a Zamindari
Ghatwali  and  as  such was alienable and  was  inclined  to
dismiss  the appeal.  In view of this difference of  opinion
the appeal was referred to Chatterjee J, as the third Judge
67
Chatterjee J. held that Taluk Kakwara was a Zamindari  Ghat-
wali  land as such alienable and accordingly  dismissed  the
appeal.  The judgment-debtor obtained leave to appeal to the
Privy  Council.  As  already stated, the appeal has come  up
for hearing before us on transfer from the Privy Council.
Although  the exact origin of the Ghatwali  tenures  was
generally  lost in the confusion and obscurity of the  trou-
blous  times which preceded the British rule, the nature  of
the  Ghatwali tenures and their purposes and incidents  have
been  fully established by a series of decided  cases.   The
position  of the Zamindars in or about 1765, when  the  East
India Company secured the Dewani of Bengal, Bihar and  Oris-
sa,  has  been described by the Right Hon'ble  T.  Pemberton
Leigh (who subsequently became Lord Kingsdown) in his  judg-
ment  in the case of Raja Lelanund Singh v. Government  Ben-
gal(1):
    Many  of the greater Zamindars within  their  respective
Zamindaries,  were entrusted with rights, and  charged  with
duties, which properly belonged to the Government.  They had
authority to collect from the Ryots a certain portion of the
gross  produce  of the lands. They, in many  cases,  imposed
taxes  and levied toils, and they increased their income  by
fees, perquisites, and similar exactions, not wholly unknown
to  more  recent times and more civilised nations.   On  the
other hand, they were bound to maintain peace and order, and
administer  justice within their Zamindaries, and, for  that
purpose,  they had to keep up Courts of civil  and  criminal
justice, to employ Kazees, Canoongoes, and Thanahdars, or  a
police  force.   But while as against the  Ryots  and  other
inhabitants  within their territories, many of these  poten-
tates  exercised  almost  regal  authority,  they  were,  as
against the Government, little more than stewards or  admin-
istrators. Their Zamindaries were granted to them only  from
year  to year; the amount of their jumma, or yearly  payment
to  Government, was varied, or might be varied annually;  it
was an arbitrary sum fixed by the Government
(1) (1855) 6 M.I.A. 101 at p. 108.
68
officers, calculated upon the gross produce of the Zamindary
from all sources, after making an allowance to the  Zamindar
for his maintenance, and for the expenses of the  collection
and  of  discharging  the public duties with  which  he  was
entrusted by the Government."
Further  down  his Lordship observed
 "Besides the disorder which prevailed generally '  'Besides
the  disorder  which prevailed generally through  the  Prov-
inces,   particular Districts  were exposed to ravages of  a
different  description.  The mountain or hill  districts  in
India were at this time inhabited by lawless tribes, assert-
ing  a  wild  independence, often of a  different  race  and
different  religion from the inhabitants of the plains,  who
were frequently subjected to marauding expeditions by  their
more warlike neighbours. To prevent these incursions it  was
necessary to guard and watch the Ghats, or mountain  passes,
through  which  these hostile descents were  made;  and  the
Mahomedan  rulers established a tenure called Ghatwali  ten-
ure,  by which lands were granted to individuals,  often  of
high  rank, at a low rent, or without rent, on condition  of
their performing these duties, and protecting and preserving
order in the neighbouring Districts."
    This description of the nature and incidents of a  Ghat-
wali  tenure was adopted by the High  Court Garth  C.J.  and
McDonell  J.)  in  Leelanund  Singh  v.  Thakoor   Munranjan
Singh(1)  which was a case between the respective  predeces-
sors of the parties before us and related to this very Taluk
Kakwara. Said the learned Chief Justice at p. 255:-
    "And  it  is very necessary for our present  purpose  to
bear  in mind what was the true origin and nature  of  these
tenures.   They were created by the Mahomedan Government  in
early  times, as a means of providing a police and  military
force to watch and guard the mountain passes from the  inva-
sions  of  the lawless tribes who inhabited  the  hill  dis-
tricts.  Large grants of land were made in those days by the
Government.
(1) (1877) I.L.R. 3 Cal. 251.
69
often to persons of high rank, at a low rent, or at no  rent
at all, upon condition that they should provide and maintain
a  sufficient military force, to protect the inhabitants  of
the  plains from these lawless incursions; and the  grantees
on their part sub-divided and re-granted the lands to  other
tenants  (much  in  the same way as  military  tenures  were
created in England in the feudal age), each of whom, besides
paying generally a small rent, held their lands in consider-
ation of these military services, and provided (each accord-
ing  to  the extent of his holding) a  specified  number  of
armed men to fulfil the requirements of the Government".
As  has  been said by Lord Kingsdown  in  Raja  Lelanund
Singh v. The Government of Bengal (supra) at p. 125  "though
the  nature and extent of the right of the Ghatwals  in  the
Ghatwali villages may be doubtful, and probably differed  in
different districts and in different families, there clearly
was  some  ancient law or usage by which  these  lands  were
appropriated  to reward the services of  Ghatwals;  services
which, although they would include the performance of duties
of police, were quite as much in their origin of a  military
as a civil character, and would require the appointment of a
very  different class of persons from ordinary police  offi-
cers".  Accordingly  his Lordship found that the  office  of
Ghatwal  in the Kharakpur Zamindari was frequently held'  by
persons of high rank. In Munrunjan Singh v. Raja Lelanund(1)
which was also a case between the respective predecessors of
the parties before us and related to this very Taluk  Kakwa-