dedol-hf/india-case-legal-rag huggingface dataset:
the  Victorious  might be nothing more than  a  mere  formal
recognition of a titular figurehead.  The statement that the
Ghatwali  service tenure of Taluk Kakwara was "held under  a
Sanad  by Bhairo Singh and Rankoo Singh with 172  Musketeers
and  Archers"  etc.  may well be taken as  referring  to  an
earlier  Sanad which specified the number of Musketeers  and
Archers  and need not necessarily refer to Captain  Browne's
Sanad  of 1777 in which there was, as has been pointed  out,
no  specification of any number of Musketeers  and  Archers.
Under  this  Sanad the grantees' tenure commenced  from  the
beginning  of  the  Kharif season of  1189  Fasli,  Rajwara,
corresponding to 1188 Fasli Mughlana. This date of commence-
ment  of the tenure is different from the date of  commence-
ment  mentioned  in  Captain  Browne's  Sanad.   In  Captain
Browne's Sanad the fixed Jama of Rs. 245-12-15 was exclusive
of Zamindari Rasoom whereas under Raja Kadir Ali's Sanad the
fixed perpetual quit rent of Rs. 245-12-15 was inclusive  of
Zamindari Rasoom, the rent being Rs. 215-0-15 and  Zamindari
Rasoom being Rs. 30-12-0.  What is still more significant is
the apportionment of the quit rent between the two  grantees
which  is to be found towards the end of the Sanad. Such  an
apportionment  was  wholly inappropriate in the  case  of  a
merely  confirmatory grant. Again, this grant comprised   16
Mauzas  whereas  Captain Browne's Sanad covered  22  Mauzas.
Even the names of many of the 16 Mauzas are not to be  found
in  the  specification  of  Mauzas at  the  end  of  Captain
Browne's Sanad. The further significant fact is that in  the
16 Mauzas set out at the foot of Raja Kadir Ali's Sanad  the
two  grantees  were  shown to have  different  and  distinct
shares  in  the different Mauzas.  In some  cases,  even  an
entire  Mauza was allotted exclusively to one or the  other.
Further,  if  Captain Browne's Sanad  created  a  Government
Ghatwali  tenure, it is not intelligible why Raja Kadir  Ali
should be called upon to confirm the grant with which he was
not directly or indirectly
        11
82
concerned.  Again, it is well known that at this time 98  of
the Ghatwals of Kharakpur took their Sanads from Raja  Kadir
Ali while only three big Ghatwals, namely, those of  Lachmi-
pur,  Handwa and Chandan Katoria took their Sanads not  from
Raja Kadir Ali but from Mr. Dickenson who succeeded  Captain
Browne.   This  distinction  can only be  explained  on  the
footing that these 98 Ghatwalis including Taluk Kakwara were
in reality Zamindari Ghatwalis while the three bigger  Ghat-
walis  were treated as Government Ghatwalis. The  fact  that
Mr. Cleveland, the Collector of Bhagalpur, was at this  time
in charge and management of Mahalat Kharakpur, that these 98
Sanads  were  granted in the name of Kadir  Ali  during  the
period of Mr. Cleveland's management and the fact that  ever
since 1780 nobody on behalf of the Government has questioned
the  propriety  of these Sanads as  evidencing a   grant  of
Zamindari  Ghatwali clearly establish that Raja Kadir  Ali's
Sanads  really regularised the position and status of  these
Ghatwals as holding Zamindari Ghatwali tenures and specified
the terms on which the tenures were to be thenceforth  held.
On  the  other  hand, even if it be  accepted  that  Captain
Browne's Sanad created a Government Ghatwali tenure then, in
the  language  of Lord Sumner in Narayan Singh  v.  Niranjan
Chakravarti (supra) at p. 54 it might well be said that Raja
Kadir  Ali's Sanad  issued  during the time  Mr.  Cleveland,
the  Collector  of Bhagalpur, was managing  the  Mahalat  of
Kharakpur,  and never objected to or questioned at any  time
thereafter  by the Government "amounted to a release by  the
Government of the Ghatwali services or to a grant to a third
party  of  the  right to receive them and of  the  right  to
appoint  the Ghatwali and,  therefore, the original  Govern-
ment Ghatwali tenure came to an end and a Zamindari Ghatwali
tenure took its place.
    The  matter  does not even rest' with Raja  Kadir  Ali's
Sanad.  In 1789 or 1790 there was a decennial settlement  of
Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made
permanent  under  the permanent Settlement Regulation  I  of
1793.  As Lord
83
Kingsdown pointed out in Raja Lelanund Singh v. The  Govern-
ment of Bengal (supra) at p. 114, it was beyond dispute  and
indeed  fairly admitted that the Ghatwali lands formed  part
of  the  Zamindari and were included in and covered  by  the
assessment  of  the Zamindari.  This was recognised  by  the
High Court in Munrunjun Singh v. Raja Lelanund (supra)  when
they  said that there was no doubt that the tenure  was,  at
the  Permanent  Settlement,  included in  the  Zamindari  of
Kharakpur and that the Jama was payable to the Zamindar.  On
appeal,  their Lordships of the Privy Council  also  pointed
out that the claim of the Government to resume and  reassess
the  Ghatwali lands was dismissed upon the ground  that  the
Taluk had been assessed to revenue and was a portion of  the
Mal  land  of the Zamindar. In Leelanund  Singh  v.  Thakoor
Munrunjun  Singh  (supra) Garth C. J. at p.  257  said  that
there  could  be  no doubt that the time  of  the  Permanent
Settlement  the Taluk Kakwara formed part of  the  Kharakpur
Zamindari and that the holders of that Taluk were "dependent
Talookdars" of that Zamindari.  The holders of Taluk Kakwara
were certainly not independent Talookdars because the Zamin-
dar  had  the beneficial interest in the  tenure  and  these
tenures  were never registered as independent Taluks.   Lord
Sumner described the attempt of Raja LelanundSingh to recov-
er possession of Taluk Kakwara as an attempt on his part  to
resume "his Shikmi Ghatwali lands."  Further, Captain Browne
in his book "India Tracts" published in 1788 had shown  only
Luchmipur,  Handwa and Chandan Katoria, all appertaining  to
Purgunnah  Kharakpur,  as three Ghatwalis under  the  Jungle
Terry  Collector.  Kakwara was not shown in that  list.   On
February 24, 1860, a list (Exhibit D)  of  Ghatwali   Mahals
appertaining  to  Kharakpur was prepared by  the  Government
showing 98 Ghatwali tenures appertaining to Mahal Kharakpur.
Kakwara  is item 73 in that list.  In 1863, at the  time  of
the composition made between the Government and the Raja  of
Kharakpur.. another list of Ghatwali Mahals appertaining  to
Kharakpur  was prepared by the
84
Government  and  Kakwara  is item No. 40 in  that  list.  In
neither  of  these lists did Lachmipur, Handwa  and  Chandan
Katoria,  which  were  under the Collector,  find  a  place.
Again,  the letters from the Collector of Bhagalpur  to  the
Raja  of  Kakwara written in 1783 and 1808 set out  in  Lord
Kingsdown's  judgment in Raja Lelanund Singh v. The  Govern-
ment  of  Bengal (supra) clearly show  that  the  Government
recognised that the right of appointment and dismissal of  a
Ghatwal  rested with the Raja of Kharakpur.  As Lord  Kings-
down pointed out in Raja Lelanund Singh v. The Government of
Bengal (supra) at p. 114, the Zamindars derived some benefit
in  money  and also had the benefit of the services  of  the
Ghatwals  and enjoyed the valuable right of  appointing  the
individuals,  who, with the lands, were to take  upon  them-
selves  the duties of the office. If the  Ghatwali  tenures,
created  by  the  Sanad of Raja Kadir  Ali  were  Government
Ghatwali  tenures, it is not intelligible how  the  Zamindar
would have the right to appoint or dismiss the Ghatwal.   On
a  consideration  of the facts and the  circumstances  noted
above,  we  are of opinion that Taluk Kakwara  was,  in  its
origin,  a Zamindari Ghatwali tenure and continued to be  so
and was in fact treated as such down to the present time and
further that even if by virtue of Captain Browne's Sanad  it
became a Government Ghatwali tenure, then under the Sanad of
Raja Kadir Ali, or, at any rate, after the Permanent Settle-
ment, Taluk Kakwara became a Zamindari Ghatwali and as  such
alienable with the consent of the Zamindar according to  the
custom of Kharakpur judicially recognised.
    It is quite clear to us that the conclusions arrived  at
by us are in no way inconsistent with the judicial decisions
which have been cited before us.  In Raja Lelanund Singh  v.
The  Government of Bengal (supra) the Government  sought  to
establish  their  right to resume and  assess  with  revenue
Ghatwali  lands appertaining to the Zamindari of  Kharakpur.
The Government claimed the right under Regulation I of 1793,
section 8, clause (4), and contended that before the
85
Permanent  Settlement the Zamindar used to  appropriate  the
produce  of the Ghatwali lands in maintaining police  estab-
lishments  and  that, as by that Regulation  the  Government
undertook  the charge of maintaining the police,  the  lands
become liable to resumption in addition to the jama assessed
on the Zamindari and that the lama assessed on the Zamindari
of Kharakpur did not include any sum assessed in respect  of
the  produce appropriated for the maintenance of the  police
establishments.   There were eleven suits against  11  Ghat-
wals. The Raja of Kharakpur was not originally made a  party
to the proceedings but he was eventually added as a party on
his own application.  In 1885 a final judgment in favour  of
the  Government was pronounced by the Special  Commissioner.
The  Raja  of Kharakpur appealed. The Government  claim  was
dismissed on the ground, first, that the Ghatwali lands were
part of the Zamindari of Kharakpur and were included in  the
Permanent  Settlement  of the Zamindari and covered  by  the
jama assessed on that Zamindari and, second, that the  lands
of  Ghatwali  tenure  were not liable  to  resumption  under
clause  (4), section 8, Bengal Regulation I of 1793  as  in-
cluded  in allowance made to Zamindars for thana  or  police
establishments.   There is not only nothing in the  judgment
of  Lord  Kingsdown which militates in any way  against  the
view  that the Ghatwali tenures appertaining to the  Mahalat
of  Kharakpur were Zamindari Ghatwali.  On the  other  hand,
the  observations of his Lordship, some of which  have  been
quoted above, clearly indicate that they were of the  nature
of Zamindari Ghatwali over which the Zamindar had the  right
of  appointment and dismissal and that they formed  part  of
the  Zamindari and were included in and covered by  the  as-
sessment of the Zamindari.
    Munrunjan  Singh  v. Raja Lelanund Singh (supra)  was  a
suit  by  the Zamindar of Kharakpur claiming  possession  of
Taluk Kakwara on the allegation that the lands were held for
police  services,  that  the appointment  and  dismissal  of
Ghatwals rested with him, that he
86
had  compounded with the Government for a money  payment  in
lieu of police services which he was bound to render through
the  Ghatwals  and that those services being no  longer  re-
quired,  he was entitled to resume the lands.  The  defences
were that the Ghatwals were not lessees liable to  ejectment
but held a permanent tenure, that it existed long before the
Permanent Settlement being held at a fixed jama mentioned in
the Sanads derived directly from the representatives of  the
British  Government  and in  compensation  for  services  in
guarding the mountainous country and the passes which  serv-
ice they were always ready and willing to perform. If  Taluk
Kakwara  was a Government Ghatwall, then the Zamindar  would
have had no locus standi to maintain the suit for possession
and  the  suit  should have been  dismissed  on  that  short
ground,  but no such point was seriously taken and the  case
was fought out and decided on the footing that Taluk Kakwara
was a Zamindari Ghatwali.  The. principal Sudder Amin having
decreed  the  suit, the defendant appealed. The  High  Court
held that the contract between the Raja of Kharakpur and the
Government  without authority of the legislature in  no  way
affected  the statute and the rights of the Ghatwal and  the
tenure in dispute was not a mere grant of land in payment of
service  to be rendered during pleasure but was a  perpetual
hereditary  holding  on a fixed jama, leaving  a  beneficial
interest in the Ghatwal with a condition of service annexed.
That decision was upheld on appeal by the Privy Council.
    The  next  case concerning this very Taluk  Kakwara  was
Leelanund Singh v. Thakoor Munrunjun Singh (supra) which was
a  suit by the Zamindar of Kharakpur against the Ghatwal  of
Kakwara  for a declaration of his right to enhance the  rent
at a rate equivalent to the Ghatwali services which had been
rendered unnecessary. Again, if Taluk Kakwara was a  Govern-
ment  Ghatwali,  the Raja of Kharakpur would have  no  locus
standi to claim an enhancement of rent in lieu of the  Ghat-
wali  services This claim of the Raja of Kharakpur was  also
dismissed.  There are positive observations
87
in  this case which indicate that Taluk Kakwara was  a  "de-
pendent"  Taluk or, as Lord Sumner called it was a  "Shikmi"
Taluk.
Learned  counsel  for  the  appellant  has  relied  very
strongly  on two cases,  namely,  Narayan Singh v.  Niranjan
Chakravarti (supra) and Rani Songbari Kumari v. Raja Kirtya-
nand  Singh(1).  Both the cases related to the  Ghatwali  of
Taluk  Handwa. The endeavour of learned counsel was to  show
that the Sanad of Captain Browne and the Sanad of Raja Kadir
Ali relating to Taluk Kakwara were in their effect the  same
as the Sanad of Captain Browne and the confirmatory  Parwang
of  Mr. Dickenson, the Collector of Bhagalpur,  relating  to
Taluk  Handwa. In Narayan Singh v. Niranjan Chakravarti  the
Subordinate  Judge  held that the tenure of Handwa  was  not
Ghatwali tenure at all. The High Court, on appeal, held that
the  parganah was.held. as.a Moghul Ghatwali  tenure  before
cession  but that it became a Government Ghatwali  and  that
nothing  had  been done to alter that position.  They  were,
however,  of  opinion that Raja Udit Narayan Singh  did  not
hold it as Ghatwal and that the heirs of Udit Narayan  Singh
could  not  impugn the validity of the mortgage  created  by
him.   This decision of the High Court was reversed  by  the
Privy  Council.  In Rani Sonabati Kumari v. Raja  Kirtyanand
Singh(1) Mr. Justice Fazl Ali elaborately discussed the  law
relating to Ghatwali tenures. Learned counsel for the appel-
lant  before  us  has relied on several  passages  from  the
judgment  of Lord Sumner and from that of Mr.  Justice  Fazl
Ali.   These  two decisions must be taken as  based  on  the
construction  of the relevant Sanads, namely, the  Sanad  of
Captain  Browne  and the Parwang of Mr.  Dickenson  and  the
observations to be found in the judgments in those two cases
must be read in the light of that construction. The position
of Taluk Kakwara appears to us to be entirely different from
that  of Taluk Handwa.  Mr. Justice Shearer in his  judgment
refers to five points of distinction between
the position of the two Ghatwals, namely----
(1) (1935) I.L.R. 14 Patna 70.
88
    (1) The Ghatwals of Handwa never paid any Rasoom on  the
amount of the land revenue assessed on the lands of Raja  of
Kharakpur;
    (2) The Ghatwal of Handwa formerly used to pay the  quit
rent  directly into  the Government treasury;
    (3) In more than one list of the Ghatwali tenures  under
the  Kharakpur Raj prepared by the Collectors of  Bhagalpur,
Handwa was not to be found;
    (4) After the restoration of Kharakpur Raj, the Ghatwals
of  Handwa instead of obtaining a Sanad from Raja Kadir  Ali
obtained  a Sanad from the then Collector of Bhagalpur,  Mr.
Dickenson; and
     (5)  the claim made by Raja Kadir Ali to appoint a  new
Ghatwal  of  Handwa on the occurrence of a  vacancy  in  the
office was negatived by the Courts.
    Likewise, Chatterjee J. in his judgment also points  out
the essential differences in the status of the two Ghatwals.
The  language used in the Sanad relating to Taluk Handwa  is
somewhat different. There is no question of payment of  quit
rent  to  the  Zamindar of Kharakpur.  Although  Handwa  was
included in the Zamindari of Kharakpur, it was only done  so
in a geographical sense and for fiscal purposes. The  annual
jama of Handwa was never treated as a part of the Mal assets
of  the  Raja of Kharakpuron which revenue was  assessed  on
him.  On  the contrary, Handwa was assessed  as  a  separate
unit and the  assessment was made pay.able by Handwa to  the
Government  through  the  Rala of Kharakpur..  The  Raja  of
Kharakpur  has no beneficial interest either in money or  by
way  of  services or any power of appointment  or  dismissal
over the Ghatwali of Handwa. Learned counsel for the  appel-
lant has relied on several passages in the judgment of  Lord
Sumner  but  those passages are susceptible  of  a  meaning.
which is consistent with the conclusions we have arrived  at
on a construction of the two Sanads relating to Taluk Kakwa-
ra.  It  is also to be noted that  the  appellant  judgment-
debtor  himself mortgaged this very Taluk Kakwara  with  the
Raja of
89
Kharakpur on the allegation that Taluk Kakwara was alienable
with the consent of the Zamindar.
    In our judgment the final conclusions arrived at by  Mr.
Justice Shearer and Mr. Justice Chatterjee are clearly right
and this appeal must be dismissed with costs.
                                Appeal dismissed.
Agent for the appellant: 1. N. Shroff.
Agent for the respondents: S.P. Verma.
PETITIONER:
SANT LAL MAHTON
        Vs.
RESPONDENT:
KAMALA PRASAD.
DATE OF JUDGMENT:
17/10/1951
BENCH:
MUKHERJEA, B.K.
BENCH:
MUKHERJEA, B.K.
SASTRI, M. PATANJALI
DAS, SUDHI RANJAN
BOSE, VIVIAN
CITATION:
 1951 AIR  477            1952 SCR  116
ACT:
    Indian Limitation Act (IX of 1908),  s. 20  (1)--Payment
of interest before expiry of period of  limitation--Acknowl-
edgment  in  writing after limitation--Whether  gives  fresh
period  of limitation-Acknowledgement after  institution  of
suit, whether sufficient.
HEADNOTE:
    While  s.  20 of the Limitation Act  requires  that  the
payment  should be made before the expiration of the  period
of limitation, it does not require that the  acknowledgement
of the payment should also be made within that period.   But
it  is  essential that such  acknowledgement,  whether  made
before or after the period of limitation, must be in  exist-
ence prior to the institution of the suit.  An  acknowledge-
ment of the payment by the defendant in a written  statement
filed after the institution of the suit is not enough.
    Mohd.  Moizuddin  v. Nalini Bala (I.L.R. [1937]  2  Cal.
137), Lal Singh Gulab Rai (I.L.R. 55 All. 280), Venkatasubbu
v.  Appa Sundaram (I.L.R. 17 Mad. 92}, Ram Prasad  v.  Mohan
Lal (A.I.R. 1923 Nag. 117), Viswanath v. Mahadeo (I.L.R.  57
Born. 453) approved.
JUDGMENT:
CIVIL  APPELLATE  JURISDICTION : Civil  Appeal No. 81 of
1950.   Appeal from a judgment and decree dated 17th  March,
1944,  of  the High Court of Judicature at Patna  (Fazl  Ali
C.J.  and Beevor J.) in F.A. No. 47 of 1942, arising out  of
decree  dated 27th February, 1942, of the Subordinate  Judge
of Purnea in Title Mortgage Suit No. 7 of 1940.
    B.  C.  De  (Bhabhananda Mukherjee, with  him)  for  the
appellants.
    S.P. Sinha (B. K. Saran, with him) for the respondent.
1951. October 17.  The Judgment of the Court was  deliv-
ered by
     MUKHERJEA   J.--This  appeal,  which   was   originally
taken  to the Judicial'Committee, on special leave,  granted
by an Order in Council dated August 2, 1946,
117
now stands transferred to this court by reason of the aboli-
tion  of the jurisdiction of the Privy Council.  It  is  di-
rected against a judgment and decree of a Division Bench  of
the  Patna  High Court dated March 17, 1944,  affirming,  on
appeal, a decision of the Subordinate Judge of Purnea  dated
February 27, 1942.
    The appellants before us are the  first party defendants
in  a  suit, commenced by the  plaintiffs  respondents,  for
enforcement of a simple mortgage bond, by sale of the  mort-
gaged  property.   The trial Judge, while deciding  all  the
other  issues in favour of the plaintiffs, held on the  evi-
dence on the record, that the bond sued upon was not legally
attested  and hence could not rank as a mortgage  bond.   On
this  finding  he refused to make a decree for sale  of  the
mortgaged property in favour of the plaintiffs and passed  a
money  decree,  for the amount due on the  bond,  personally
against the defendants first party.  According to the Subor-
dinate  Judge, although the suit was instituted more than  6
years after the date fixed for payment in the bond, yet  the
claim  for  personal relief against the mortgagors  did  not
become  time-barred  by reason of the fact that  there  were
several  payments made by the defendants towards the  satis-
faction  of the debt, which attracted the operation of  sec-
tion 20 of the Indian Limitation Act.  Against this decision
an appeal was taken by the defendants mortgagors to the High
Court of Patna, but no appeal or ,cross-objection was  filed
by the plaintiffs against the refusal of the trial Court  to
make  an order for sale of the mortgaged property  in  their
favour.   The  appeal was heard by a Division Bench  of  the
Patna High Court, consisting of Fazl Ali C.J. and Beevor J.,
and  the principal point canvassed on behalf of the  defend-
ants  appellants  was,  that the trial court  was  wrong  in
holding that the plaintiffs' claim for a personal decree was
not  barred by time. The argument put forward was  that  the
suit,  as one for personal relief against the  debtors,  was
barred on the expiry of 6 years from the date for  repayment
mentioned  in the bond and the part payments relied upon  by
the plaintiffs in their plaint were ineffectual for
     16
118
the  purpose  of extending the period of   limitation  under
section 20 of the Indian Limitation Act-  The High Court  on
hearing  the appeal came to the conclusion that the bond  in
suit was duly attested and was effective and enforceable  as
a mortgage bond, and that the view taken by the trial  court
on the question of attestation could not be sustained on the
evidence  on the record.  As the bond could be treated as  a
mortgage bond, the suit, as one for  enforcement of a  mort-
gage,  was,  in  the opinion of the  learned  Judges,  quite
within time, and it was not necessary in these circumstances
to  call in aid the provisions of section 20 of the  Limita-
tion  Act  for  the  purpose  of  extending  the  period  of
limitation.  The learned Judges held, however, that  as  the
plaintiffs  had not preferred any appeal or cross  objection
attacking that part of the judgment of the trial Judge which
dismissed their claim for a sale of the mortgaged  property,
they were unable to pass a mortgage decree in their  favour.
The  result was that the decree made by the trial Judge  was
affirmed.   It  is the propriety of this decision  that  has
been challenged before us in this appeal.
    Mr.  De,  who  appeared in support of  the  appeal,  has
contended in the first place that even if the High Court was
right  in holding that the bond in suit was effective  as  a
mortgage  bond  and  the suit could be treated  as  one  for
enforcement  of  a mortgage, no decree for  money  could  be
passed  against the defendants personally, unless  the  suit
was  instituted within the period prescribed by Article  116
of  the  Limitation Act. The High Court, it is  said,  over-
looked  this aspect of the case altogether and was wrong  in
not considering the question of limitation. It is argued  by
the  learned  Counsel that on the point  of  limitation  the
decision  of  the Subordinate Judge was wrong,  and  as  the
payments relied upon by the plaintiffs had not been acknowl-
edged in the manner contemplated by section 20 of the  Limi-
tation  Act, no extension of time was permissible under  the
provisions of that section. Mr. De further contends that  on
the  question of attestation, the correct finding  was  that
arrived at by the Subordinate Judge and it
119
is impossible to hold on the evidence that has been  adduced