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3 S.C.R.

SUPREME COURT REPORTS 947

(3) The box may be opned once in a month or oftener as desired by the pujaris but not more than once in a week.

(4) The amount found in the box may be noted by the management; the whole of it should be handed over to the chosen representative of the pujaris on behalf of all the pujaris in case the ex. penditure for dhoop, deep and neivedya for the period prior to the opening has been met by the pujaris.

In case however sucli expenditure has been met by the management, the balance after deducting such expenses, shall be immediately paid to the chosen representative of the pujaris on behalf of them all.

The last provision has been made to make it clear that the management will not t:tke away the money but immediately give it to the representative of the pujaris for distribution among them. The provisions of the Public Trusts Act will be satisfied. in that the management will be in a position to know how much has gone to the pujaris including the amount spent on dhoop, deep and neivedya.

This provision will also take away any objection about there being interference with the private rights of the pujaris under the agree. ment of 1872.

We therefore allow the appeal, set aside the order of the High Court and restore the revised scheme subject to the modifications suggested by us above.

The Districi Judge will see that these modifications are embodied in the revised scheme.

In the circumstances of the case we order parties to bear their own costs.

Appeal allowed.

JIBON CHANDRA SARMA DOLOI

AN ANDI RAM KALITA AND OTHERS. (P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)

Brahmollar land-If alienable-Burden of proof-Assam Land and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.

The plaintiff-appellant filed a suit alleging that the lands in •uit were unauthorisedly transferred to the \)redecessors in mle

l?t

I96I

Raje Anandrao v.

Shamrao

wa.nchoo J.

February a3.

SUPRE.\fE COURT REPORTS [1961]

r96r of the respondents. His contention was that the lands were granted to the Bardeuries (officials) of a certain ancient temple in Jibon Chandrn Assam in order to enable them to render service to the deities Sarma Dotoi installed in the temple and as such the lands were inalienable to v. straners other than the Bardeuries.

AnandiRain f\alita Held, that in view of the history of land tenure in Assam and by virtue of the relevant statutory provisions of Assam Land and Re,•enue Regulation (Reg. I of 18Sb) the lands mu>t be deemed to be heritable and transferable without any restriction.

The transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under s. S(r)(a) and becam<• "land holders" under s. 3(g) of the Regulation and consequently s. g applied to them statutorily recognising their rights in the lands to be permanent, heritable and transferable.

To prove the plaintiff-appellant's contention that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary.

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 105 and 106 of 1957.

Appeals from the judgment and decree dated April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41 and 54 of 1951.

L. K. Jha and D. N. Mukherjee, for the appellant.

N aunit Lal, for respondents Nos. 1 to 12.

1961. February 23. The Judgment of the Court was delivered by

Gajendragadkar ]· GAJENDRAGADKAR, J.-These two appeals arise from a suit instituted by the appellant in the Court of the Special Subordinate Judge, Assam Valley Districts, in which he claimed a declaration that the sale deeds of lands described in detail in the various Schedules attached to the plaint were void and for possession of the litnds covered by the said sale deeds. His case was that Madhab Temple at Hajo is a ver:' ancient temple and the Assam Rajahs had granted lands to the Bardeuries (temple officials) to enable them to render service to the deities installed in J; he said temple. The lands thus granted to the temple officials were endowed lands and the same had been burdened with service to the temple ; in other words, the grantees were entitled to enjoy the lands on condition that they rendered the ...- requisite service to the temple.

As a c_orollary of th\l

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3 8.C.R.

SUPREME COUHT ltEPOR'l'8 949

burden imposed on the grantees by the said grant the

I96I lands we. re inalienable to strnnbcrers though they could - J ibon Chandra be transferred to anv of the Bardeurie; of the temple. sa,,,, a Doloi According to the ap.pellant the said lands had originv. ally been granted to Hem Kanta 8arma and Uma AnandiRam l<alita Kanta Sarma who were then the worshippers at the -- temple. The respondents who were impleaded to the Gajendragadkar J. suit represented the heirs (if the original grantees and assignees from those heirs. The appellant has brought this suit on behalf of the Madhab Temple at Hajo, aJHl his case is that the alienations made by the worshippers in favour of non-worshippers were invalid and so the temple was entitled to claim a declaration as set out in the plaint and to ask for possession of the lands unaudwrisedly transferred to the µredeccssors in title of the respondents. The lands in suit have been described in detail and specified in three Schedules called Ka, Kha and Ga.

The respondents denied this claim. They urged that the original grants were not burdened with service and were alienable without a.ny restriction whatever. They also pleaded that they had purchased the lands bona fide for valuable consideration and without notice of a.ny such burden or obligation subsisting on the lands.

Besides, they added a plea. of limitation in respect of the lands specified in Schedules Kha and Ga.

The trial court upheld the appellant's contention a.nd ma.de a finding that the lauds in suit were burdened with service with the resnlt that the impugned alienations were void. It also found that the purchasers had not shown that they had made adequate enquiries and so their plea that they were purchasers without notice could not be sustained. On the question of limitation, however, it accepted the plea raised by the respondents in respect of the lands described in Schedules Kha and Ga. In regard to the lands desci:ibed in Schedule Ka the trial Court directed that the appellant should obtain delivery of possesaion of the said lands through the transferor-defendants or their heir if the latter were willing to render service to the temple; otherwise the appellant was held entitled to get independent possession a.nd the said transferors

1150 SUPREME COUR'f REPORTS rj l\ll.l) t.a.uv

i96i would be deemed to have relinquished their interest in the said lands.

J ibon Chandra

Sarma Dolo• This decree gave rise to cross appeals before the v.

District Court. The said appeals were heard together AnandiR•m K•lit•and the appellate court confirmed the decree passed - by the trial court in respect of Kha and Ga lands. In G•jendragadkar J. regard to the lands in Schedule Ka the appellate court maintained the declaration in favour of the appellaut but discharged the conditional decree for possession because it held that in regard to the said lands the appellant must be left to move the sovereign authority to sue for resumption of the said lands.

This appellate decree became the subject matter of two appeals and cross objections before the High Court. The High Court has held that the finding concurrently recorded by the courts below in regard to the burden subsisting on the lands in question was based on evidence most of which was hearsay and the whole of which taken together was meagre and insufficient in law to sustain the said finding.

The High Court has also criticised the courts below for placing the onus of proof in regard to the character of the lands on the respondents. According to the High Court it was for the appellant to prove his case in respect of the nature of the original grant. The High Court has then taken into account the fact that the evidence shows that many of the lands were transferred to strangers and that was inconsistent with the case made out by the appellant. Besides, the High Court has referred to the fact that the lands in question are described as Brahmottar lands in revenue papers and that clearly shows. that the said lands are heritable and transferable without restriction. On the question of limitation the High Court has accepted the plea of the respondents that Article 144 of the Limitation Act applied. As to the declaration granted to the appellant by the District Court the High Court has observed that the said declaration was absolutely futile. In the result the suit preferred by the appellant has been dismissed with costs throughout. It is this decision which is challenged before us by the appellant with a cerLificate granted to the appellant by the High Court in that behalf.

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3 S.C.R.

SUPREME COUltT REPOltTS 9.'\l

The principal point which has been urged before UH 1961 by Mr. Jha for the a11pellant is that the High Court J ibo11 Cha11dta was in error in coming to the conclusion that lands in s •. ,,,,. Doloi suit which are admittedly described 1s Brahmottar v. lands in the revenue records are transfernble without .lnandiRam [(alita any restriction.

In support of its conclusion the _ . -- High Court has referred to the history of the lands, Ga; en.dragadk"' 1 the nature of the initial grant and the recognition of the title of the grantees by the British Government after it conquered Assam and of the several steps taken thereafter. This history lms been set out in detail in the Assam Land Revenue lllanual (1 ).

From this introduction it appears that Ni•f-khiraj (half-revenue paying) estates as distinguished from Khiraj (fullrevenue paying) estates form a class of tenure found only in Assam Proper and they have a special history of their own. In 1834, shortly after Assam was annexed by the Government of India it ruled that "all rights to bold l:inds free of assessment founded on grants made by auy former Government must be considered to have been cancelled by the British conquest. All claims therefore for restoration to such tenure can rest only on the indulgence of the Government without any right." This ruling clearly and emphatically brought out the legal consequences of political conquest.

Grants made by the previous Governments came to an end and their continuance a.fter the conquest would depend upnn the indulgence of the succeeding Government.

It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of isf-khiraj estates held their lands revenue-frrp and called themselvP, s lakhirajdars.

They continued to describe themselves as such even after their lands were resumed and assessed at half rates. Mr. Scott, the first British Commissioner of Assam, refused to recognise any claims to hold land revenue-free.

Research made by him in that behalf showed that even prior to the Burmese conquest of Assam lakhiraj land had occasionally been assessed at five aunas a pura (four bighas) in times of trouble by

(•) Vol. I, 6th Ed., p. !xv;;_

952 SUPREME COUit'l' REPORTS [1961]

the Assam Rajahs themselves. Basing himself on this precedent Mr. Scott fixed the assessment of the said J ibott Cha#dra l Sarrna Doloi and at the •aid rates and subsequently increased it to v. seven or eight annas a purn. This imposition was ,,...,,, uR..,,.Kali1aknown as Police Barangani.

Captain (afterwards General) Jenkim became lhe

Gajedr•gadlar J. Commissioner of Assam in 1834.

The lakhirajditrs objected to pay the tax imposed on their lands by Mr. Scott on the ground that Mr. Scott intended to levy the said tax temporarily and had promised to remit it. This dispute was referred by General Jenkins to the Government of India. who replied that they saw no reason to believe that the tax imposed by Mr. Scott was intended to be temporary, and they added that if it was Mr. Scott's intention it would not be valid beca 01se Mr. Scott had not obtained the sanction of the Government in that behalf. Even so, the Government of India directed that a. full enquiry should Le made into all claims to rent-free lands on the part of Rajahs or as debotter or dhli.rmottar or on any other plea throughout the districts of Assam and Captain Bogle was appointed Special Cummissioner to make the said enquiry under Rgulation III of 1818. This enquiry had to be held subject t.o the control and orders of General Jenkins. The Government prescribed certain principles to guide Capt"'in Bogle in his enquiry. One of these principles was that pending the lakhira.j enquiry Mr. Scott's moderate rates were to be levied.

The orders issued by the Government in that behalf clearly declared the right of the Government to assess all lands held revenue-free in Asam Proper, but subject to this right Government were prepared to grant the indnlgence of restoring to the lakhirajda.rs all lands held by them and to confirm them in possession.

It appears that the instructions issued by the Government were not fully ca.rllied out by General Jenkins. Instead of treating all la.khira.j lands a.s being on the same footing a.nd liable to assessment the Genera.I drew a. broad distinction between debotter Ia.nds which were a.ppropria.ted to temples and lands known as bra.hmottar or dharmottar, that is to say,

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·-' - -,._ , /

~ ._ ...... ;.·, -~------ - ' \ _' . ,. ''":-~-----·--. " ' lands devoted to some religious purpose not being r96r . temple lands. In respect of the former he confirmed . -- . the gr.ants revenue.fri:e. In respect of the latter he 1!~, c~-i~·

simply confirmed the grantees in possession subject to ''":., 0

' the payment of Mr. Scott's favourable rates 'untilA•andi Ram Kalila Captain Bogie's eriquiry was terminated and final ., . . , orders p'isrnd in that behalf. · · · · . .1 - < Ga; nodra1adAar J. 'It is cuious .that though_ the enquiry of Captain Bogle' went on for many years it was not formally completed till the year 1860. By that time the instr'uctions issued by the Government of-India at the com- . menc'ement of the enquiry \vere lost sight of, No

'report' was submitted to the Government. bJ' _the

Pnquiring officer and final orders of the Government-of India were not obtained on _thequestion whether the holders of brahmottar and dharmottar la-rids-were to . hold their lands at the rates fixed by General 'Jenkins.

In consequence holders of these lands have ever since . continued to hold at half rates without any formal

' decision by t.he Government of India having beeri 'reached in that behalf.

1 . Subsequently the __ holders' rights to continue to hold the lands at tho said rates have beeri recognised and their holdings have been declared to be heritable and transferable by' the Government of India in 1879. ' ' '' . This summary of the history of these iandswhih is

t<> be found in . the introduction to the Assam Land . Revenue i\fan1ial shows that Nisf.khirajdar of. he ~-.. present day "is ordinarily a person whose lands'.19-ere claimed by his ancestors revenue-free. on. the. groinid that they were granted by the Assam . Rajas for some religious or charitable purpose". It appears' that the word "Nisf-khiraj" was invented for the first-time in 1871 and it applied to all estates which paid half the ordinary revenue rates .. This. word was presumably invented to avoid c1mfusion caused by the use of the , word .. lakhiraj" which had been applied to them_ prior tol87l. __ ·. : . •-; ., ·. '

- . ·-·· [· ·•The hlstory of this tenure is similarly stated in the Goverpnient Gazette relating to A8sam as well as by

Baden_-Powell (Vo_!. III, pp. 406 followingj. . .

1961 At this stage it would be necessary to refer to the relevant provisions of Regulation I of 1886. It is.

Jibon Chandra JJ d h A L 50,, •• Do1o; ca. e t e ssam and and Revenue Regulation of the v. sa.id year. Section 3(g) of this Regulation defines .-lnandiRam Kalil•" la.nd holder" as meaning any person deemed to have acquired the status of a land holder under s. 8; while Gajeodrogadk•r fs. 8 (I) provides, inter alia, that any perso11 who has, before the commencement of this Rrgulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate. or iu a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to s. 9 which provirles that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in els. (a), (b) and

(c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under s. 8 (I) (a) and became Ja.nd holders under s. 3 (g).

The inevitable consequence of this position is thats. 9 applies to them a.nd their rights in the lands in their occupation a.re statutorily recognised to be permanent, heritable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to au.stain the plea that the lands in question a.re burdened with the special condition that they can he transferred only to Ba.rdeuries and not to any strangers outside the group. As the High Court ha.s found, and that is no longer in dispute, these lands are described as brahmottar lands in revenue records a.nd to the said lands anti their holders the statutory provisions of the Regulation to which we have just referred a.pplied ; therefore, it is impossible to escape

' .

the conclusion that by virtue of the relevant statutory .... , provision8 of the Regulation the lands must be deemed to be heritabk ncl t mnsforabl" without any Tf'Rtriction,

1961 This aspect of the matter was completely ignored by the trial court and the appellate court, and so the Jib•• C1"'ndr• High Court was right in correcting the error which had Sarma, Doloi crept irito the concurrent decisions of the courts below. . v. . .

Besides, the High Court was also right in holding Anand•R••• K•l•I• that in a case of this kind where the appellant urged G . d-dA 1 that the lands could be alienated only to a specified aJ•• raga "' • class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That . was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.

In the result the appeals fail and are dismissed with costs.

Appeals dismissed.

N. KASTURI

D. PONN AM.MAL AND OTHERS. (P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)

Will-Construction-Bequest to Kin the absence of adoption- Testator's intention to adopt K-Authority to adopt given lo widow -No adoption made-K's rights, whether vested interest subject to defeasance by subsequent adoption.

A testator, who was childless, executed a will on April 28, 1937, and died on March IO, 1939, leaving him surviving his . ·• widow. In cl. 6 of the will he expressed his desire to adopt a boy and stated that in case he did not make an adoption during his life-time his wife shall adopt K. He also conferred authorityQo hi~

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