Authored By : Thomas William Richardson, H. Walmsley

Thomas William Richardson, J.

1. I confess that I have had some difficulty with thisappeal and the analogous appeals which were argued along with it. I have beengreatly impressed with what the Settlement Officer says in his judgment in thepresent case (paragraph 3) about the origin and special character of thesejotes. He says that they are known as khud jotes and he observes with greatforce that the term is reminiscent of the khud kasht raiyats of an earlierperiod. He mentions other features in the evidence which go far to show that inthe opinion at any rate of the landlords officers, the tenants of these jotespossess rights which,, to use a natural term, may be described as permanentresidential rights. I have a strong suspicion that in spite of their presentarea the jotes were in their origin raiyati holdings, or they may have grownput of smaller holdings of a raiyati character. The special incidents .nowattached or sought to be attached to them by contract resemble very largely theordinary incidents of a raiyati holding at the present day. On the questionhowever, whether the jotes are tenures or raiyati holdings, we are confrontedwith the concurrent findings of the Courts below that they are tenures. Noattempt was made in the argument before us to displace that finding on anyground open in second appeal and it must, therefore, be accepted as final.

2. In the appeal .before us, the tenants rights being, as-we must now take them to be, those of a tenure-holder, there is greatdifficulty in agreeing with the Courts below that the tenure is a permanenttenure. The question is not merely one of fact. It depends at any rate to alarge extent on the construction of the kabuliyats executed from time to timeby the tenant or his predecessors. It is a question of construction forinstance whether the word "shara-shari" or "temporary, whichoccurs in these documents or some of them, refers to the variability of therent or the nature of the tenancy. The learned Special Judge in the lowerAppellate Court has come to the conclusion that while the tenure is permanentand heritable, the rent is variable and the tenure is not transferable. Nowthere is no inconsistency at all between a permanent tenure and a variablerent, but permanency and non- transferability are not so easily reconcilable.Section 179 of the Tenancy Act has no application because the tenure is not amukarari tenure. If the tenure is permanent it falls under the provision inSection 11 of the Bengal Tenancy Act, which says that "Every permanenttenure shall, subject to the provisions of this Act, be capable of beingtransferred and bequeathed in the same manner and to the same extent as otherImmovable property." If this section be read with Section 10 of theTransfer of Property Act, it may be that, as the kahuliyats do not provide forre-entry by the landlord in case of breach of the condition against transfer,the condition is in any case void, whether the tenure is permanent or not. But,however that may be, I express no opinion on the point. Taking the terms of theseries of kabuliyats as a whole, it is not easy to suppose that the kabuliyatsor any of them is either creative of, or refers to, a permanent tenure.

3. The difficulty and responsibility of deciding in thefirst instance whether a particular tenancy is a tenure or raiyati holding isoften, in cases near the border line, enhanced by the fact that if the tenancyis held to be raiyati the tenant will have permanent rights of occupancy, Whileif it is held to be a tenure it my almost necessarily follow that the tenure isnot permanent. The problem is sometimes specially difficult in the case ofleases of new lands which are to be brought under cultivation, because theposition of the tenant at the inception of the tenancy may be very differentfrom his position, it may be many years later, when the land has beensuccessfully reclaimed and the question arises. At first it may not be to thelandlords interest to deny that the tenant is a raiyat and there may be anunderstanding, probably on an informal basis, that he is a raiyat. As time goeson it may be very much to the landlords interest to assert that the tenant isa tenure-holder.

4. The present is a case in point. The dispute between theparties really turns on the question whether the jote is a tenure or a raiyatiholding and the decision on this question is not now open to review.

5. On the whole I am forced to the same conclusion as thatarrived at by my learned brother and concur in the order which he proposes tomake.

6. I may add that the relations between the landlord and hiskhud jote tenants appear to have been in the past of the friendliest character.I trust that the present controversy will not disturb the excellent relationshitherto existing and will not lead the landlord to treat his tenants with lessconsideration than he has hitherto done.

7. The judgments delivered in this case will govern theother analogous appeals.

8. In all these appeals the parties will bear, their owncosts.

H. Walmsley, J.

9. This appeal is by the landlord, arid arises outer of anapplication under Section 106 of the Bengal Tenancy Act. The substance of theapplication is that the defendant-respondents interest in a tenure has beenentered in the record as permanent, whereas it should be only, temporary.

10. The defendant, pleaded that her interest was that of araiyat, and was permanent. The claim of raiyati interest is no longer underdiscussion, and the question now is whether the tenure is permanent or not;

11. The Assistant Settlement Officer held that the tenurewas permanent. On appeal the learned Special Judge upheld this decision withthe qualifications that the tenure was not transferable and that the rent wasliable to enhancement. The landlord now asks us to go further and hold that thetenure is not permanent, A permanent tenure is described in Section 3 (8) ofthe Act as a tenure which is heritable and which is not held for a limitedtime.

12. I will deal first with the feature of heritability. Fourkabuliyats have been laid before us, one produced by the defendant, and threeby the landlord, the first executed in 1250 B.S. (1843 A.D.) and the otherthree in the years 1277, 1285 and 1295 B.S. Frov the evidence it appears thatRup Nath Das, who executed the first, was a benamidar for Bishnu Charan andthat the second was executed by Bishnus son Biseshwar, and the third andfourth by Biseshwars widow, the present defendant. The learned Judge holds,and I think rightly, that the descent from father to son, and then to the sonswidow", is not enough to establish the fact of heritability and he andthat heritability is proved by the oral statement of plaintiffs firstwitness. This statement is set out in full by the Settlement Officer, and Ineed not repeat it. The part of it on which special emphasis is laid is thesentence why should the malik do an injustice by. settling the jote with a newtenant." It appears to me, however, that these words do not go very far.The witness only means that the dead mans heir is recognized as having a moralclaim to succeed to his fathers rights; he does not mean that the heir has alegal right which the malik cannot ignore. Against this evidence we have thevery important omission in the kabuliyats: not one of them contains the wordsfrom generation to generation. These words form a well known phrase, and thetenant who claims an hereditary right under a document which does not containthem has a heavy onus to discharge. Not only does the oral evidence justreferred to fail to discharge that onus, but the same witness by his referenceto the payment of nazarana at least suggests that succession of son to fatheris not a matter of right, but a matter of grace and payment. In my opinion,therefore, the feature of heritability is not proved.

13. Next as to the words "which is not held for alimited time." The finding of the Courts below is that the settlement ofthe tenure was permanent, but the settlement of the rent payable in respect ofit was temporary. It is not necessary to consider whether such a contract ispossible, because there are other terms in these kabuliyats which call forremark, and help to decide the true nature of the arrangement.

14. In the first place all the kabuliyats bind the tenant tokeep the trees intact; and in the second place they all restrain him frommaking any transfer of the land. The last three add that he must not partitionthe lands. In the ordinary way a tenure-holder has the right to cut down trees,and the right of alienation, though not an essential feature of a permanent tenure,is commonly regarded as an invariable incident.

15. Next, the three later kibuliyats speak of a sarasari andlike the first they are for a term of years. They contain no clause to theeffect that the rent only is temporary: The most that can be said for them isthat each in turn gives the tenant the right to enter into a fresh arrangementon terms to be fixed by the landlord. More important than this is the conditionin the three later kabuliyats for the landlords right of re-entry in the eventof the tenant not entering into a fresh arrangement. It is true that thiscondition is not in the kabuliyat of 1250 B.S., but I think the learned Vakilfor the appellant is right in asking us to look at the terms of the latestagreement rather than of the earliest. This condition cannot, I think, bereconciled with the defendants claim for permanency and is by itselfsufficient to prove that the tenure is held for a limited time. It seems to meimpossible to hold in the face of such a condition that the temporary characterof the agreement was limited only to the amount, of rent. On the other hand, itis pointed out that the tenant has been in possession for a long time, and thatfor a period of 70 years only four kabuliyats, for terms aggregating 29 years, areproduced. I fail to see that these facts alter the nature of the agreementbetween the parties, and it is to be remarked that the first kabuliyat is foran than one fourth of the are an mentioned in the last kabuliyat. Repeatedrenewals of an agreement do not change the character of ah agreement.

16. It is, I think, equally unsafe to draw any inferencefrom the fact that the landlord has granted settlement again and again to thesame man or to his successor-in-interest. Self-interest may be the explanation,or friendly relations between landlord and tenant.

17. In my opinion the decision of the learned Special Judgeis wrong, and I would decree the appeal and order the entry in the Record ofEights to be corrected, that is to say, by substituting the word"non-permanent" for the words permanent and heritable."

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Bahadur Sir Prodyot Coomar Tagore and Ors. vs. Krishnamoni Dasya (19.04.1917 - CALHC)