Authored By : L.H. Jenkins, Thomas William Richardson

L.H. Jenkins, C.J.

1. This and the several connected appeals arise out of suitsbrought to recover possession of a number of immovable properties on the groundthat the several leases under which they were held have determined by the deathof those to whom the leases had been granted.

2. In their broad features the cases are all alike.

3. This suit was instituted by Maharaja Ram Narain Singh andon his death his heir and legal representative Lakhi Narain. Singh wassubstituted in his place. Lakhi Narain Singh is a minor under the Court ofWards and Mr. Macgregor is his next friend.

4. These leases were granted, not by Maharaja Ram NarainSingh, but by his predecessor Raja Ram Nath Singh, who died towards the end of1866.

5. There is no dispute as to the fact of the leases; thequestion is whether the grantees, under them acquired interests terminable ondeath or heritable and permanent.

6. The suits were heard by the Subordinate Judge of zillaHazaribagh who after a prolonged hearing decided against the Plaintiffs. Fromhis decree appeals were filed and they were heard at great length by Woodroffeand Coxe JJ. These learned Judges differed in opinion and so the decree wasconfirmed (Section 98 of the Code of Civil Procedure).

7. From this judgment of the High Court, the present appealhas been preferred by the Plaintiff under Clause (f) of the Letters Patent. Theterms of the lease in this appeal are set out in the judgment of Woodroffe J.and I need not repeat them. It will be observed that the lessees are two innumber, Dilo Mahato and Chola Mahato. They were brothers. The date of the leaseis the 15th Aswin Badi, 1922 Sambat (the 19th September, 1865). The document statesthat the brothers "have obtained istemrari mokarari of mouza Mandramo,one village in pergana Rampur exclusive of jaigir and birt land, coal mines andsubsoil rights from 1922 Sambat at an annual jama of Companys Rs. 672."The lessees then express their readiness to cultivate and improve the village,to keep the tenants contented and to construct altars and so forth.

8. The rent is payable in kists and provision is made forcertain small salamis. Default in payment of rent is to involve cancellation ofthe mokarari. Losses from drought and so forth are to fall on the lessees whoundertake not to do anything injuriously affecting boundaries. Power totransfer is withhold, the cutting down of fruit-bearing and income-yieldingtrees is forbidden and the obligation to replace fallen trees is imposed on thelessees.

9. Though it is not so expressed in the lease, a nazaranaequal in amount to one years rent was paid as a consideration for the lease.

10. The leases to which this litigation relates were executedbetween the 27th of November, 1864 and the 22nd September. 1865 and they werethe result of a change in the administration of the Raj. Whether they areactually from the same draft or not is, I think, immaterial: they are for Sheone and the same purpose and are a part of one and the same scheme of estateadministration.

11. Before 1864 the practice had been to let out the land onshort ticca leases of 5 or (5 years. This was found to be unsatisfactory andleases in mokarari istemrari were introduced, it is conceded by the Plaintiffthat the new system secured to the lessees fixity of rent and a measure ofcontinuity, but it is maintained by him that this continuity was limited to thelives of the grantees in the absence of words of inheritance, such as naslanbad naslan or ba farzan-dan or al-aulad.

12. Before us the Plaintiff has contended that this case isconcluded by authority and in particular he has relied on the decision of thePrivy Council in Tulshi Pershad Singh v. Ramnarain Singh I.L.R. (1885) Cal. 117: L.R. 12 IndAp 205. This case, he maintains, establishes that the wordsistemrari mokarari in a patta, according to their customary meaning, are notalone sufficient to impart the quality of heritability, but that specialcircumstances or conduct are necessary and none such have been proved in thiscase.

13. The Defendants case has been presented before us by Mr.Sarkar who has not followed the line of reasoning that commended itself to CoxeJ. and in that I think he acted wisely. Nor has he adhered rigidly to thereasoning of the Subordinate Judge.

14. He has not disputed the applicability of the decision inTulshi Pershad Singhs Case I.L.R. (1885) Cal. 117; L.R. 12 IndAp 205; on thecontrary he invoked its assistance, for he has claimed that it at any ratesanctioned the view that the words mokarari istemrari would suffice to create aheritable interest without express words of inheritance where local usage, theterms of the lease, the circumstances under which the lease was executed or theconduct of the parties justified that conclusion. And then he maintained thatwhat was proved in this case sanctioned the view that a heritable interest hadbeen created.

15. The phrase mokarari istemrari has been the subject ofmuch discussion in the Courts and is to be found in many dictionaries andofficial manuals, but the pronouncement of the Privy Council in Talshi PershadSingh v. Ramnarain Singh I.L.R. (1885) Cal. 117 : L.R. 12 IndAp 205 roust beaccepted by us as final. It is therefore necessary to see what precisely it wasthat this case decided. The question involved in Tulshi Pershad Singhs CaseI.L.R. (1885) Cal. 117 : L.R. 12 IndAp 205, was whether an istemrari mokararipatta was heritable or not. The lease was by the owner for the time being of aRaj to his son-in-law in renewal at an increased rent of a patta that had beenexecuted in the year of the son-in-laws marriage. The locality was Bhagalpur.

16. ON the death of the grantee a suit was brought by thegrantors successor to recover possession of the ] land in the patta. It wasbased on the ground that as the patta contained 210 express words ofinheritance such as "bafarzandan" or "naslan bad naslan"the grantee only took a life estate. A custom of the Raj was also alleged underwhich hereditary grants for maintenance were only made to male members of thefamily and grants to daughters husbands were for life.

17. There was evidence of grants to male members of thefamily and to sons-in-law and from these it appeared that in that family wherehereditary interests were intended to be granted, words of inheritance wereadded. The Subordinate Judge held that the words "istemrari mokarari"alone conferred only a life estate and passed a decree in the Plaintiffsfavour.

18. This decree was affirmed on appeal by the High Courtwhere reliance was placed (among other things) on the improbability suggestedby the fact that the grantee was a son-in-law.

19. ON appeal to the Privy Council the decision was upheld.Reference was made to decisions in Sudder Dewani Adalat and the High Court andthen the judgment proceeded as follows: "After this review of thedecisions, their Lordships think it is established that the words istemrarimokarari in a patta do not per se convey an estate of inheritance, but they donot accept the decisions as establishing that such an estate could not becreated without the addition of the other words that are mentioned, as theJudges do not seem to have had in their minds that the other terms of theinstrument, the circumstances under which it was made, or the subsequentconduct of the parties, might show the intention with sufficient certainty toenable the Courts to pronounce that the grant was perpetual."

20. Their Lordships proceeded to say, "Such anintention was not shown, in this case and in the argument before theirLordships the Appellant relied solely upon the terms of the patta. As has beensaid, their Lordships, having regard to the customary meaning of the words asestablished by the decisions noticed, are of opinion that they do not convey anestate of inheritance in this case."

21. Of those decisions three are reported in the SudderNarain Adalat Reports, one being Baboo Toolsee Nurain Sahee v. Baboo ModnurainSingh (1848) S.D.A. 752 : 10 I.D. (O.S.) 532 from Behar, the secondAmiroonnessa Begum v. Hetnarain Singh (1853) S.D.A. 648, from Behar, the grantin that case being to a natural son and the third, Sarobur Singh, v. RajahMehendernarain Singh (1860) S.D.A. 577, from Bhagalpur. They all decide thatthe istemrari mokarari leases then under consideration were not hereditary butfor the life of the grantee.

22. Passing to the decisions in the High Court, we find thatMusstt Lakhu Kowar v. Roy Hari Krishna Singh (1869) 3 B.L.R.A.C. 226 came fromTirhoot. The Sudder ameen gave to the word istemrari the sense of perpetualthis was reversed by the additional Judges of Tirhoot, but was restored by theHigh Court.

23. The comment on this case in Tulshi Pershad Singhs CaseI.L.R. (1885) Cal. 117 : L.R. 12 IndAp 205 suggests that, in their Lordshipsopinion, the result might have been different, had the decisions of the SudderCourt previous to 1853 been referred to and the effect ascribed to them is"that the words when used in a patta had a customary meaning."

24. The decision referred to as "the other case in theHigh Court in 1877" would seem to have been Nam Narain Singh v. Amir Khan(1877) A.A.D. 533 of 187, (unreported), instituted on the 26th February, 1875,in the Civil Court of the Deputy Commissioner of the District of Hazaribagh.The question was whether under a grant in mokarari istemrari a heritableinterest passed. The High Court, confirming the decree of the JudicialCommissioner by which the decree of the Deputy Commissioner of Hazaribagh hadbeen in turn confirmed, held that the document must be construed as a lease inperpetuity which would descend to the heirs of the lessee.

25. Raja Lilanand Singh Bahadur v. Thakur Munorunjun Singh(1873) 13 B.L.R.P.C 124 : L.R.IndAp Sup. Vol 181, the next case referred to,came from Bhagalpore.

26. Their Lordships there referred to the expressionmokarari istemrari and said it might be doubtful whether they meant permanentduring the life of the person to whom they were granted or permanent as regardshereditary descent.

27. They do not seem to have drawn the distinction betweenthe lexicographical and customary meanings, but to have accepted the sense ofpermanent or uninterrupted and treated the measure of performance as dependenton the subject-matter to which the term was applied, so that a life interestcould as well be described as istemrari mokarari as a hereditary interest.There has been some discussion before us as to the precise force of theexpression "customary meaning" as used by Sir Richard Couch. Mr.Sarkar contended that it had reference to proved local usage and to maintainthis he referred to a remark in one of the noticed decisions of the SudderDewani Adalat. Sir Rash Behary on the other hand urged that its force was"accustomed," "popular," or "wonted." But itsmeaning is sufficiently established for our purposes by a decision of the HighCourt, binding on us, Narsingh Dyal Sahu v. Ram Narain Singh I.L.R. (1903) Cal.883, 886, to make further discussion unnecessary. It was there decided that apatta in the Hazaribagh district, in terms substantially identical with that inthis case, came within the ruling in Tulshi Pershad Singhs case (1885) I.L.R.12 Calc. 117 : L.R. 12 IndAp 205. Nor does Narsingh Dyal Sahus Case (1) standalone. It was followed in Choudhri Gridhari Singh v. Maharaj Ram Narain Singh(1995) R.A. 89 of 1902, decided on 4th May. An application was made in thatcase for leave to appeal to His Majesty in Council, but it was refused by thePrivy Council (1906) 10 C.W.N. cclxxxv.

28. For the purpose of this case, therefore, it must betaken as settled that the phrase istemrari mokarari in a patta in the districtof Hazaribagh do not per se convey an estate of inheritance, but that it isopen to us to see whether (a) the other terms of the instrument, (b) thecircumstances under which it was made, or (c) the subsequent conduct of theparties show the intention with sufficient certainty to enable us to pronouncethat the grant was hereditary.

29. Beyond this it has been contended that the wordsistemrari mokarari have acquired a local or special customary meaning in thelocality which implies succession.

30. There is authority for this contention in aninterlocutory remark of Banerjee J. in Narsingh Dyal Sahus Case (1903) I.L.R.30 Calc. 883, 886; whether it is the origin of the contention in this case ornot appears to me to be of no real importance.

31. Before dealing with the contention of a special localmeaning, it will be convenient to explain briefly the causes that led up to thegrant of these istemrari mokarari leases. The former practice in the Raj hadbeen, as I have already remarked, to let the villages to farmers on ticcaleases of 5 or in some cases 6 years.

32. From the Tenure Report (to the admission of which inevidence no objection was taken, apart from the question of its relevance) itappears that Maharaja Ram Nath Singh, observing that these farmers under theshort ticca system had no permanent interest in the well-being of their tenantsand that the only object the farmers had was to screw as much as possible outof the raiyats without doing anything to improve their villages, in order toremedy these evils determined to create mokarari tenures. Accordingly in 1864he gave all that came forward and agreed to pay double the rent formerlyassessed on the village and a salami or nazarana equal to one years increasedrental, leases containing the words istemrari mokarari, but omitting allmention of heirs and successors.

33. The Plaintiffs witness Kissen Dyal confirms thisstatement as to the amount of nazarana. From the evidence of Chowdhuri AchheLal Singh, it seems that there had been great difficulty in collecting theticca rent and this witness called by the Plaintiff, explains that there werethree reasons for the mokarari settlements, (i) the improvement of the lands,(ii) the greater facility in the collection of rents and (iii) the increase ofincome.

34. Kissen Dyal deposes that there was a considerable debtof the Raj when Ram Nath came to the gadi and he explains that the mokararisfetched income and the income and the salami went to pay off the debt.

35. I will now deal with the contention that the localmeaning of the words implies succession.

36. The Defendant bank in its written statement alleged thatthe term istemrari mokarari had obtained a customary meaning attached to it inthe district of Hazaribagh, viz., that it was used whenever the lease wasintended to be permanent and hereditary in character. Among the issues raisedwere the following: (i) Did the mokarari istemrari lease granting the villagein suit to the original grantees secure any hereditably interest to the heirsor was it for the life only of the original grantees (ii) Have the wordsmokarari istemrari any special customary meaning

37. The trial Judge thought that in Hazaribagh the phraseindicated a permanent and heritable interest and though his reasoning may notbe free from criticism, his view of a topic so essentially local is entitled toconsideration.

38. Though these leases were a new departure in 1864, thelearned Judge points out that istemrari mokarari was not an unknown phrase andthat there were in this locality interests under gadi sanads known as mokarariistemrari which were heritable and not terminable with the life of the grantee.

39. One of such tenures, it is said, had actually beenpurchased by a predecessor of the Plaintiff. It is further brought to ournotice that alongside of these permanent interests, there were others that wereterminable to which the description istemrari mokarari was not applied. Thenthe mode in which these leases were registered has been invoked as a strongindication that the phrase was understood locally to confer a heritableinterest.

40. Coxe J. treated the circumstance as conclusive: Mr.Sarkar was more moderate in his contention and in that I feel no doubt he wasright. It may have been the official view that an istemrari mokarari lease wasan absolute transfer, but there is nothing to show that the Government directionswere limited to Hazaribagh On the contrary these registration rules would be ofuniversal application and would govern official routine, notwithstanding thePrivy Council pronouncement, just as we rind to be the case in the officialSettlement Manual and Administration Report.

41. True it is that it does not appear that the Raja, or hismen objected to the mode of registration, but we know little or nothing of thecircumstances, certainly not enough to justify a conclusive inference as to thelocal meaning of the phrase.

42. Then it has been contended that the numerous transfersand other dealings with these istemrari mokarari interests is a strongindication of the local meaning of the phrase. These transfers and dealings mayexcite some sympathy and prompt a wish to assist those who have dealt with,these interests in the honest belief that they were hereditary. This, however,cannot take the place of proof and as proof I do not think the transactionscome to much. An interesting synopsis of these transactions has been placedbefore us, which demonstrates the growth of the idea that permanent interestshad been created.

43. The transfers have been collected under several heads.Under the first are dealings prior to the decision of Prem Koeris suit by Col.Boddam on the 12th March, 1872 and in the documents of this period we find somesuch expression as "so long as the mokarari istemrari lasts." In thedealings during the period after the decision of Prem Koeris suit and beforethe institution of Amir Khans suit, no such qualifying words appear. In thefinal period, that is to say, after the decision in Amir Khans Case (1877)A.A.D. 533 of 1876, we find in the instruments such expressions as this "Ior my heirs," or "descending to progeny," "generation aftergeneration" "absolute owners," "perpetual right of theproprietor."

44. If the public now deal in these istemrari mokararileases as though they were perpetual, it may be that they are influenced by thedecisions in Prem Koeris suit and Amir Khans suit. But that cannot beaccepted as any indication of the sense in which the phrase istemrari mokarariwas locally understood at the time the leases were granted and that is thepoint with which we are concerned.

45. But while the Defendant points to these transfers anddealings as indicating that istemrari mokarari leases were perpetual incharacter the Plaintiff relies on the fact that in many pattas express words ofinheritance are to be found in addition to the phrase istemrari mokarari, asthough that phrase would not alone suffice to create a perpetual interest.Indeed in some cases it is the grantees under istemrari mokarari pattas whotake under the al-aulad grants. And the Plaintiff has followed this up bybringing to our notice an instance in which istemrari mokarari pattas have beenconverted into al-aulad puttas in consideration of the payment of a premium andan increased rent. It may be true that we do not know all the circumstanceswhich led to this transaction, but that is almost inevitable having regard tothe date; still it is not without its value as a support to the Plaintiffscontention.

46. There is oral evidence as to the existence ornonexistence of a special customary meaning of istemrari mokarari inHazaribagh, but neither side has relied as much on it as on the otherindications in the case and it certainly is not of a character to establisheither the one view or the other.

47. On the issue with which I am now concerned, what has tobe proved is, not that in the opinion of anyone, whether a witness or not, thephrase istemrari mokarari implies heritability, but that in the district ofHazaribagh it has that special customary meaning.

48. In Narsingh Dyal Sahas Case (1903) I.L.R. 30 Calc 883,which came from the district of Hazaribagh, no such special customary meaningwas established; nor do I think it has been proved in the present case. And incoming to this conclusion I have endeavoured to give full effect not only toeach separate circumstance on which the Defendant relies but to their combinedoperation.

49. Before leaving this part of the case, I would wish tomake one saving reservation. I have, for the purpose of the argument, treatedthe words istemrari mokarari as capable of a special customary meaning denotinghereditability. But I do not decide that this is so and I would desire toreserve for future consideration the question what the true method ofapproaching the problem is.

50. Having then decided that the Defendant has notestablished a special customary meaning of the phrase istemrari mokarariimporting succession, I now proceed to consider the terms of the lease, thecircumstances in which it was executed and the subsequent conduct of theparties.

51. This is in accordance with the decision of the PrivyCouncil in Tulshi Pershad Singhs Case (1885) I.L.R. 12 Calc. 117; L.R. 12IndAp 205, which in this respect reflects what was laid down in the earlierdecision in Watsons Case (1875) 24 W.R. 176. Now, in dealing with this part ofthe case, it is at once apparent that to a greater or less extent thediscussion of the several topics has been anticipated by the decision deliveredby Banerjee J. in Narsingh Dyal Saha. v. Ram Narahi Singh I.L.R. (1903) Cal.833.

52. On the question of the inference to be drawn from theterms of the lease, the materials before the Court were to all intents andpurposes the same as they are in the present case and the Courts decision wasadverse to the Defendants contention. But apart from this, I come to the sameconclusion in this case. So far from these terms showing an intention to createa perpetual interest, they appear to me to tend in the other direction. Insaying this I do not forget the provision as to improvements and the ingeniousarguments founded on it. It is in terms that impose no duty to which anumerical expression can be given and does little more than declare that asbetween grantor and grantee the burden, of improvements is to fall on thegrantee. With the actual improvements effected I will deal when I discuss theconduct of the parties.

53. On the other hand, the provisions as to trees and therestraint on transfer do not point to a grant in perpetuity. And I say thisnotwithstanding the suggested explanation based on Exhibit X 5. It issignificant that these restrictions are not to be found in al-aulad grants. Andthe fact that the grants are made in two names, whether it be to husband andwife, father and son, grandfather and grandson, brothers, cousins or strangers,points, in my opinion, to leases for lives rather than in perpetuity. And in sosaying I do not overlook Mr. Sarkars argument that at any rate the fact thatsome of the leases were taken in single names shows that the grantees thought aright of inheritance was bestowed, as otherwise they would have insisted on twolives to prolong the term of the lease and all the more as some of these singlelessees were servants of the Raj. But it may well have been their associationwith the Raj that accounted for this circumstance.

54. And there is another matter, not without itssignificance, that although nazarana was paid, it was not mentioned in thepatta, although, we are told, nazarana is expressly mentioned in those leaseswhich are unquestionably perpetual.

55. This brings me to the circumstances in which theinstrument was made, or, as it has been termed by their Lordships of the PrivyCouncil, in Watson v. Mohesh Narain Roy (1875) 24 W.R. 176, "thecircumstances existing at the time of the document being entered, into." Ihave already explained and need not repeat how these istemrari pattas came tobe adopted. The rents, it will be remembered, were doubled and a nazarana waspaid equal to one years increased rent. It is a circumstance to be taken intoaccount that, these istemrari mokarari leases were granted, not by way ofbounty, but as a matter of bargain and I certainly do not overlook this factand the contentions based on it. But it obviously is far from conclusive as thedecisions show.

56. For the Defendant it is contended that the increasedrent reserved and the nazarana paid afford strong proof that permanency wasintended. The increase in rent, amounting, it is said, to Rs. 70,000 odd, isnot without its relevance; it in some measure meets the usual retort that thelandlord would not be likely to forego the favouring chances of futurepossibilities and it may even be utilized by the tenant for the purpose ofcontending that the only inducement for the high rent which perhaps exceeds thepresent productive capacity of the land is the certainty that futureimprovement and enhancement of value will recoup the outlay. But it detractsfrom the value of enhanced rent as an indication of permanency that the rentceases with the determination of the interest. This, however, cannot be said ofnazarana and if it be considerable in amount relatively to the value of theland, in other words, if it represents many years purchase, it wouldundoubtedly tell in favour of permanency. In the cases before us the rent hasbeen increased; and as far as I can judge the increase amounts to double theformer rent.

57. Mr. Sarkar has argued that the increase was such that arack rent became payable and on this he laid great stress; but I am far frombeing convinced of the correctness of his statement. On the contrary, itappears that in some cases at any rate properties were sublet at an increasedrent. Moreover, it has to be borne in mind that an increase of rent was no newdeparture. On each new ticca there was an increase. It may have been only ofone anna in the rupee, but then the term of the ticca was only five or sixyears.

58. The amount of nazarana was by no means so great as tosuggest the inference that it represented the purchase of an interest inperpetuity and here too it must not be forgotten that a nazarana, thoughsmaller in amount, was payable on the grant of ticca leases.

59. In connection with this part of the case, it was arguedvery strenuously by Mr. Sarkar that the Plaintiff had failed to call as awitness one Radhika Das, although he was in his list of witnesses and hadfailed to produce certain documents that had been called for by his clientThis, he maintained, entitled him to the benefit of the presumption thatevidence which is withheld would be unfavourable to the person in whose possessionor under whose control it is. But in my opinion the Plaintiff was under noobligation to call this witness; on the contrary, he may have had good reasonfor not putting him in the witness box. Nor is it proved to my satisfactionthat there was any withholding of documents that would justify an unfavourablepresumption. It is suggested that the applications for istemrari mokararidocuments were called for but this is not made out. And for what it may beworth, a bundle of documents chosen at random were in the course of theargument produced by Sir Rash Behary for Mr. Sarkars inspection and theydisclosed nothing favourable to the Defendant.

60. This brings me to the consideration of the conduct ofthe parties since the execution of the lease. The conduct of the public wouldbe relevant, if at all, only on the issue, with which I have already dealt, ofthe special customary meaning of the phrase istemrari mokarari.

61. The original lessor died so soon after the granting ofthe leases, i.e., in 1866, that there is no conduct on his part to beconsidered.

62. One transfer apparently was executed before his death,but no circumstances are disclosed which would give rise to any inference. AndI would here recall the fact that I have already dealt with the general topicof transfers and their effect. And what I have pointed out in reference totransfers would apply with equal force to improvements. But then it is saidthat the case set up by the widow Prem Koeri in a suit brought by her in 1871goes to show that the grants were regarded as more than for life. But at thesame time the fact that she sought to resume equally demonstrates that shethought the grant was terminable, though she may have been under amisapprehension as to the life or lives by which it was to be measured. Nor canit be overlooked that Prem Koeri was only a widow and that the subsequentsuccessor would not be bound by what she did.

63. The absence of a death register seemed to theSubordinate Judge to be a circumstance of some importance, as an indicationthat the leases were permanent, but there was no register of jaigirs--onlynotes,--and I do not regard the circumstance as of any great value. Nor am Iable to hold on the strength of the Hakima Jaidad that, the mokarari pattas createdestates of inheritance.

64. Apart from these several circumstances with which I havebriefly dealt, there is no conduct which, helps the Defendants case. On thecontrary, we have the significant fact that the Plaintiff and his predecessorthroughout disputed the grantees claim to an interest in perpetuity. Thisdisposes of all the appeals, except those numbered 5, 11, 14 and 17. These havebeen separately discussed before us, but the lessees contention has rested ona misinterpretation of the pattas to two persons. In my opinion, the durationof these pattas is to be measured, not by the continuance of the joint livesbut also by the life of the survivor and this affords a complete answer to thepleas of limitation, recognition and occupancy right. In all other respectsthese appeals are governed by the same considerations as the remainder.

65. And as to them I have come to the conclusion that theseistemrari mokarari leases have not conferred interests in perpetuity. In thesuit out of which Letters Patent Appeal No. 2 of 1914 arises, therefore, Ithink the appeal should be allowed and the decree set aside and a decree passedin favour of the Plaintiff for possession of the property claimed in theplaint.

66. In view of the divergence of judicial opinion which hasmarked this case, we direct the parties to pay their own costs throughout. Wefurther direct that the Plaintiff do recover mesne profits, up to the date ofthis judgment, at the rate at which rent is payable under the lease; if theDefendants choose to continue in possession, they will be liable for mesneprofits at the full rate from after this date.

67. This judgment governs all the appeals and similardecrees will be drawn up in all the cases.

Mookerjee J

68. The subject-matter of the litigation which hasculminated in this appeal, is immovable property granted, by way of istemrarimokarari lease, on the 19th September, 1865, by the predecessor of thePlaintiff, the Maharaja of Ramgarh, to Dilo Mahato and Chola Mahato. The termsof the lease are set out in the judgment of Woodroffe J. and need not bereproduced hire. On the death of both the lessees, the Plaintiff, institutedthis suit for recovery of possession of the village from the Defendants, therepresentatives of the lessees, on the allegation that the lessees held under alife-grant. The Defendants contended that the leasehold interest was permanentand heritable and that they were entitled to hold the land as representatives,in interest of the original lessees. The question in controversy, consequentlylay in a very narrow compass, namely, did the lease convey a permanentheritable interest as alleged by the Defendants, or an interest limited induration to the lives of the lessees only, as the Plaintiff contended. TheSubordinate Judge found in favour of the Defendants and dismissed the suit. Onappeal to this Court, the Judges of the Division Bench were equally divided inopinion. Woodroffe J. took the view that the question should be answered infavour of the Plaintiff and the suit decreed. Coxe J. was of opinion that theview taken by the trial Court was correct and that the appeal should bedismissed. Consequently, the decree of the Subordinate Judge stood confirmedunder Section 98(2) of the Code Civil Procedure, 1908. The present appeal hasbeen preferred under Clause 15 of the Letters Patent and the argument, thoughpossibly not so elaborate as those addressed to the primary Court or to theDivision Bench have occupied ten days, although the question of the legaleffect of an istemrari mokarari grant is by no means of first impression andhas farmed the subject of discussion in cases of the highest authority, whichare binding on us and cannot be ignored.

69. The question of the true meaning of the expressionistemrari mokarari has been considered by the Judicial Committee on at leastthree occasions. In a Case of ghatwali tenures where the words mokarariistemrari were used, this Court ruled that the holding was perpetual: MunrunjunSingh v. Rajah Lelanund Singh (1865) 3 W.R. 84; on review, Rajah LeelanundSingh v. Thakoor Monorunjun Singh (1866) 5 W.R. 101. On appeal from thatdecision, the Judicial Committee held that the expression might mean eitherpermanent during the life of the person to whom the grant was made or permanentas regards hereditary descent: Raja Lilanand Singh Bahadur v. Thakur MunorunjunSingh (1873) 13 B.L.R. 124 : L.R.I.A. Sap. Vol. 181. This view was re-affirmedand amplified by the Judicial Committee in the case of Talshi Pershad Singh v.Ramnarain Singh I.L.R. (1885) Cal. 117 : L.R. 12 IndAp 205, where Sir RichardCouch, observed as follows: "It is established that the words istemrarimokarari in a patta do not per se, convey an estate of inheritance, but they donot accept the decision as establishing that such an estate cannot be createdwithout the addition of the other words that are mentioned (such as bafurzandan, naslan bad, naslan), as the Judges do not seem to have had in theirminds, that the other terms of the instrument, the circumstances under which itwas made or the subsequent conduct of the parties, might show the intentionwith sufficient certainty to enable the Court to pronounce that the grant wasperpetual." Sir Richard Couch here adopts the very words of Garth C.J. inSheo Pershad Singh v. Kally Das Singh I.L.R. (1879) Calc. 543. 555,subsequently affirmed on appeal to the Judicial Committee, Bilasmoni Dasi v.Raja Sheopersad Singh I.L.R. (1882) Cal. 664 : L.R. 9 IndAp 33. Thisformulation of the true meaning and effect of the expression underconsideration was based, be it noted, not on the special circumstances of thecase, such as that the particular gift was to a son-in-law or that there was afamily custom of life-grants, but upon a review of the earlier decisions on thesubject, three of them given by the Sudder Dewani Adalat and two by this Court.The decisions in the Sudder Court, namely, Toolsee Nurain Sahee v. BabooModnurain Singh (1848) S.D.A. 752 : 10 I.D. (O.S.) 532, Ameeroonnissa Begum v.Hetnarain Singh (1853) S.D.A. 648 and Sarobur Singh v. Rajah MehendernarainSingh (1860) S.D.A. 577, supported the view that a mokarari istemrari leasedoes not import heritability, unless expressions such as ba farzandan or naslanbad naslan find a place in the deed. On the other hand, the cases of MussamatLakhu Kowar v. Roy Hari Krishna Sing (1869) 3 B.L.R.A.C. 226 : 12 W.R. 3 andNam Narain v. Amir Khan (1877) S.A. 533 of 1876, decided on 4th Sept, to whichmay be added the cases of Tekait Manoraj Singh v. Raja Lilanund Singh (1865) 2R.L.R. 125 n and Karunakar Mahati v. Niladhro Chowdry (1870) 5 B.L.R. 652 : 14W.R. 107 affirmed the proposition that the words mokarari istemarari containedin a patta must be taken in themselves to convey a hereditary right inperpetuity. The decision of the Judicial Committee overruled both sets ofcases, the former in so far as it was held that express words indicative ofheritability were not necessary to prove that a heritable interest had beencreated, the latter in so far as it was held that the expression indicatedcontinuity of tenure but not necessarily permanency as regards hereditarydescent. This view was treated as settled law in Beni Pershad Koeri v. DudhnathRoy I.L.R. (1899) Cal. 156 : L.R. 26 IndAp 216, where Lord Davey said that anistemrari mokarari tenure is not necessarily a perpetual hereditary tenure.Reference may, in this connection, be made to two other decisions of theJudicial. Committee. The Government of Bengal v. Nawab Jafur Hossein Khan(1854) 5 Moo. I.A. 467 and Bilasmoni Dasi v. Raja Sheopersad Singh I.L.R.(1882) Cal. 664 : L.R. 9 IndAp 33, where the word mokarari was used without theaddition of the word istemrari and it was ruled that though the term mokararimight import perpetuity, that was not the necessary meaning of the word. Theexposition contained in these decisions of the Judicial Committee has beentreated as conclusive in three recent cases in this Court: Agin Bindh Upadhyav. Mohan Bikram Shah I.L.R. (1902) Cal. 20, Nursingh Dyal Sahu v. Ram NarainSingh I.L.R. (1903) Cal. 883 and Choudhri Gridhari Singh v. Maharaj Ram NarainSingh (1905) R.A. 89 of 1902, decided on 4th May. In the case last mentioned,an application was made to this Court on the 23rd January, 1906, for leave toappeal to His Majesty in Council; the application was refused on the groundthat the matter was concluded by the decisions of the Judicial Committee andthe proposed appeal could not be said to involve a substantial question of law.An application was then made to the Judicial Committee, for special leave toappeal, but the application was refused: Choudhri Gridhari Singh v. Maharaj RamNarain Singh (1906) 10 C.W.N. cclxxxv. In these circumstances, the attempt toestablish, that the meaning attributed to the expression by the Judicial Committeeis erroneous, by reference to lexicographical works or to the writings ofauthors of repute on the land-law of this province, can be characterised onlyas belated and futile; but I desire to add that, as will appear from theextracts from lexicographical works appended to this judgment, then; is reallyno foundation for the suggestion that the view taken by the Judicial Committeeis erroneous. As regards the statement by Field in his Introduction to theRegulations of the Bengal Code, 1875 (p. 39) and by Phillips in his TagoreLectures on Land Tenures, 1876, p. 347 it is plain that they have noindependent value; it is no disparagement to the unquestioned erudition ofthese learned authors to point out that their view upon this question was basedupon judicial decisions which can no longer be regarded as good law in view ofthe rule enunciated by the Judicial Committee in Tulshi Pershad Singh v.Ramnarain Singh I.L.R. (1885) Cal. 117 : L.R. 12 IndAp 205. Thus, the notes toSection 18 of Reg. VIII of 1793 by Field make it manifest that he founded hisview on the decisions in Mussamat Lahhu Kowar v. Roy Hari Krishna Singh (1869)3 B.L.R.A.C. 226 : 12 W.R. 3 and Karunakar Mahativ. Niladhro Chowdhry (1870) 5B.L.R., 652; 14 W.R. 107 which are also mentioned by Phillips. It isinteresting to observe that Field himself makes a more qualified statement inhis later work "Digest of the Law of Landlord and Tenant" (1879),page 25. Thus, whatever weight might otherwise be due to the opinions of Field andPhillips, the position is obviously different when we know the sources of theirview and how their authority has been destroyed by subsequent pronouncements ofthe highest judicial tribunal. We must consequently accept the position asuncontestable that the expression istemrari mokarari does not per se convey anestate of inheritance, but that an istemrari mokarari patta, notwithstandingthe absence of words indicative of heritability, such as ha farzandan, nastanbad naslan or al-aulad, may be a perpetual grant if the other terms of theinstrument, the circumstances under which it was made, or the subsequentconduct of the parties, show such an intention with sufficient certainty. Thatthis is a legitimate mode of enquiry is clear from the decision of the JudicialCommittee in Watson v. Mohesh Narain Roy (1875) 24 W.R. 176. It is accordinglynecessary to consider the case before us in each of the three aspects justmentioned.

70. First, as to the other terms of the instrument. Theseare by no means decisive in favour of the Defendants. The clauses which imposea restraint on transfer and on the cutting down of fruit-bearing orincome-yielding trees and make it obligatory on the lessees to plant anothertree in place of any that might fall down by itself, are not consistent withthe theory that a perpetual grant was intended. On the other hand, the clausewhich throws the cost of improvement on the lessees indicates some measure ofcontinuity, but not necessarily perpetuity. The fact that the lease was infavour of two lessees--we are told that out of 591 leases of the same type asthe one before us, as many as 515 were in favour of two persons--points to theconclusion that though some measure of continuity was desired, perpetuity wasnot intended; for if the lease was intended to be perpetual, it would beunnecessary to have recourse to the familiar device of a grant in favour of twoor more persons so us to minimise the chance of expiry of the lease on thepremature death of a single grantee. We have further the important circumstancethat though a premium was paid, the fact was not recited in the deed; if thelease was intended to be perpetual, such recital could hardly have beenomitted, for a substantial premium is one of the surest indications of apermanent grant. The terms of the lease, taken as a whole, do not, in myopinion, assist the Defendants ; on the other hand, they tend to weaken, if notto negative, the theory of a permanent grant.

71. Secondly, as to the circumstances under which the grantwas made. It is established that up to 1861, the practice prevailed in theestate of the Maharaja of Ramgarh to grant temporary leases to tenants usuallyfor a term of five years, in some instances for a term of six years; on eachgrant a premium of a years rent was taken and upon the expiry of the terms,when a fresh grant was made, the rent was enhanced by one anna in the rupee.This system of temporary leases had resulted in its attendant evils; thelessees had no inducement to improve the lands; they were exposed to thetemptation to exact from their under-lessees as much as they could during theirterms and they were by no means punctual in the payment of rent to theMaharaja. To remove these evils and also to raise money to free the estate fromthe claims of creditors, a change in the mode of administration was introduced.Tenants were offered istemrari mokarari leases on condition that they agreed topay double the previous rent and also paid a premium equal to one years rentalat the enhanced rate. The offer proved attractive and between the 27thNovember, 1864 and 22nd September, 1860, 611 such leases were granted; of these591 have been traced. The result was the realisation of about Rs. 1,10,000 aspremium, while the annual rent roll was raised by Rs. 70,000. Do thesecircumstances indicate with sufficient-certainty, an intention to createpermanent leases No doubt, something more stable and loss precarious than thetemporary leases then usual was intended, but we cannot say definitely that a,perpetual grant was intended. True, the rent was doubled and a premium was paidto the extent of the new rent for a year; but we must remember that even in thecase of successive temporary leases for short terms, the rent was enhanced,periodically and a premium was levied on each, occasion. I do not think it canreasonably be said that what the lessees risked by paying double the previouscustomary rent and by agreeing to pay double the previous bonus could have beenrisked by a business man only on the assumption that he was granted in return aperpetual tenure. A tenure certain for life of the longer liver of the twolessees was obviously more certain and continuing than a temporary lease for 5or 6 years, so that the tenants might well have consented to the terms actuallyoffered to them, it is besides clear that even the new rent could not bedescribed as rack rent and left the lessees an appreciable margin of profit. Myconclusion is that the surrounding circumstances, as they are known to haveexisted at the time of the execution of the leases, one of which is before us,do not assist the contention of the Defendants.

72. Thirdly, as to the subsequent conduct of the parties. Wehave here to consider conduct nearly contemporaneous with the execution, of thelease as also conduct many years later. Under the first branch, we have thecircumstance that the leases were registered under the provisions of the IndianRegistration Act (XVI of 1864) in a "register which., under the statutoryrules then in force, was to record all absolute transfers of immovableproperty. Reliance has been placed upon the cases of Najibulla Mulla v. NusirMistri I.L.R. (1881) Cal. 196; Jagatdhar Naraiu Prasad v. Brown I.L.R. (1906)Cal. 1133 and Indra Bibi v. Jain Sirdar Ahiri I.L.R. (1907) Cal. 845 In supportof the contention that the mode in which registration was effected is relevantfor the purposes of the present enquiry. Assume that this argument is wellfounded, but how does it assist the Defendants The mode in which theregistration was effected shows at best that the registrar took the leases tobe perpetual grants. There is nothing to indicate that the lessor or thelessees made any admission before him on the subject. This factor is, in myopinion, not only not conclusive but its weight is infinitesimal. As regardsthe second branch, namely, conduct subsequent, so far as the grantor isconcerned, there is nothing to bind him, as he died in 1866 shortly after theleases had been granted. As regards his successors, the only circumstance worthyof mention is an allegation, by Maharani Prem Koeri in her suit against HitooKoeree, decided by Col. Boddam on the 12th March, 1872, that an istemrarimokarari lease would continue so long as there were male heirs of the grantee.This is obviously valueless, first, because the statement by a limited ownercould not bind the present Maharaja, and secondly, because the statement, takenas a whole, does not support the present case of either party. As regards theconduct of the grantees, reliance has been placed upon two circumstances,namely, first, that in some instances valuable improvements have been effected,and secondly, that successive transfers of the leasehold interest have beenmade on the assumption of its heritability and its permanence. As regardsimprovements, the lease itself, as already stated, provides that the cost shallbe borne by the lessees; consequently the fact that the lessees have madeimprovements at their own expense does not, show that the lease was intended tobe permanent. As regards dealings with the property, it may be conceded thattransfers have been made in many instances on the assertion that the Leaseholdinterest was permanent and heritable. But there is nothing to show that theseassertions were made with the knowledge or with the concurrence of therepresentatives of the grantor. On the other hand, an examination of thedocuments, whereby the transfers were effected, discloses a significantdevelopment in the phraseology used. In the earlier documents, the expressionsused are more or less colourless, while in the later instruments, definiteexpressions indicative of heritability and permanence make their appearance.The influence of the decisions in the cases of Prem Koeri v. Hitoo Koeree andNam Narain v. Amir Khan, is distinctly visible here and I do not think muchweight can be attached to the circumstance that the later documents evidence anassertion of heritability and permanence. On the other hand, we cannotoverlook, what cannot by any means be treated as an insignificant,circumstance, namely, that in some instances at least the holders of istemrarimokarari grants had them converted into al-arulad or hereditary grants onpayment of fresh premium and enhancement of the rent. In my opinion, theconduct of the parties subsequent to the grant does not indicate with anyapproach to certainty, that the lease was intended to be perpetual.

73. Finally, there is only one other aspect of the case leftfor consideration, namely, is it established that at the time of grant of thelease, the expression istemrari mokarari had acquired a customary local meaningin the district of Hazaribagh, in other words, that the expression was used toconnote a grant of a permanent and hereditary character A large body of oralevidence has been adduced in support of an affirmative answer to this question.That evidence is, in my opinion, valueless for two reasons. In the first place,the evidence does not with precision refer to the period antecedent to orcontemporaneous with the grant of the leases. Assume for a moment that thewords are shown to have a special local meaning now; we cannot apply theprinciple presumunter retro. The assertion that the expression has acquired acustomary local meaning implies that the ordinary meaning is somethingdifferent; the vital point, consequently, is when did it acquire a specialmeaning, assuming that it has a special meaning at the present moment Unlessit is shown that the alleged special meaning was prevalent in 1864, it is of noassistance to the Defendants; and this has not been proved. In the secondplace, the oral evidence fails to establish that the expression has a customarylocal meaning. No doubt, as stated by Lord Lindley in Chatenay v. BrazilianSubmarine Telegraph Company (1891) 1 Q.B. 79, the meaning of words is aquestion of fact, though the effect of words is a question of law. But theexistence of the alleged customary local meaning is not proved merely by theassertions of witnesses that, in their opinion, the expression has a particularmeaning. If the oral evidence is thus inconclusive upon the question of aspecial customary local meaning, we are left with the evidence of what has beendescribed as gadi sanads granted from 1780 to 1860. These, it is said, weremokarari istemrari but had been treated as hereditary. The history of thesesanads is narrated in the judgment of Woodroffe J. and I agree with hisconclusion that the evidence as to their true character is too uncertain tojustify the conclusion that the expression istemrari mokarari had in 1864:acquired the customary local meaning attributed to it.

74. The position, consequently, is that the use of theexpression istemrari mokarari does not necessarily show that the lease wasperpetual and the Defendants have failed to prove that the phrase had acquireda special, local customary meaning in 1864. The other terms of the lease, thesurrounding circumstances at the time of its execution and the subsequentconduct of the parties also fail to show with sufficient certainty that theintention of the parties was to create a permanent and heritable interest so asto enable the Court to pronounce that the grant was perpetual. We have, on theother hand, the undeniable fact that at the time the leases were granted, theidea was universally held that the holder of an impartible zamindari like theRamgarh Raj could not encumber the corpus of the estate so as to bind hisco-parceners except for justifiable special causes; indeed, it was not till1888, that the contrary view was authoritatively formulated by the JudicialCommittee in Sartaj Kuari v. Deoraj Kuari I.L.R. (1888) All. 272 : L.R. 15IndAp 51. This is a circumstance which we may legitimately take into account,for in the words of Willes J. in Lloyd v. Guibert (1865) 6 B. and S. 100, 133 :`, the rights of the parties to a contract are to be judged of by that law bywhich they may justly be presumed to have bound themselves: Abdul Adz Khan v.Appayasami Naicker I.L.R. (1903) Mad. 131 : L.R. 31 IndAp 1. It is thusextremely improbable that the grantor should have in 1865 made a long series ofperpetual leases in contravention of what was then the accepted law. From everypossible point of view, consequently, the defence proves unsustainable.

75. In four of the connected appeals (5, 11, 14 and 17),special points have been raised in addition to the main ground alreadyconsidered, namely, that the Defendants have acquired a right of occupancy,that they have been recognised as tenants after the death of the originallessees and that the claim is barred by limitation. There is no substance inany of these objections. The leases were not agricultural leases for purposesof cultivation, but were intended to create tenures; no question of acquisitionof occupancy right can consequently arise. The objections as to limitation andrecognition are equally fallacious. They are based on the assumption that uponthe death of one of the two original grantees, the lessor became entitled tore-enter as to one-half of the property demised. This argument overlooks theelementary proposition that the lease would not terminate till the death of thesurvivor of the two lessees. There is a fundamental distinction between thequestion of the duration of the lease as a whole and the question of the devolutionof the interest thereunder on the death of the first lessee. We are not nowconcerned with the question, whether upon the death of the first lessee, hisheirs or his co-lessee would be entitled to occupy the demised premises. It issufficient for our present purpose that the landlord was not entitled tore-enter till both the lessees were dead. In this view, no question oflimitation or recognition arises.

76. In my opinion, there is no escape from the conclusionthat these appeals must be allowed, the decrees of the Subordinate Judge setaside and the suits decreed on the terms indicated in the judgment of the ChiefJustice.

Thomas William Richardson, J.

77. I am of the same opinion and there is nothing which Ican usefully add to the judgments delivered by the Chief Justice and Mr.Justice Mookerjee.

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Ram Narain Singh vs.Chota Nagpur Banking Association(25.08.1915 - CALHC)