Patna High Court
Lal Nriparaj Singh, Rai Bahadur, (Under ... vs Mohan Gauntia on 12 February, 1918
Equivalent citations: 44IND. CAS.817, AIR 1918 PATNA 432
JUDGMENT Chapman, J.
1. One Karuna Gauntia was the Gauntia of two villages named Bandipali and Sargipali. In 1891 he received a certificate under Section 65A of the Central Provinces Land Revenue Act of 1861 declaring him to be protected for the purposes of that section. In 1900 Karuna died, leaving him surviving three sons named Mohan, Kuber and Balaram. In the Survey and Settlement of the district of Sambalpur which was concluded about the year 1906-07, Kuber, the younger son, was recorded as the Gauntia of the village of Sargipali, Mohan being recorded as the Gauntia of Bandipali. In October 1907, Kuber executed a document purporting to surrender the Gauntiaship of Sargipali to the Zemindar on receipt of Rs. 2,300, in consideration of the improvements which he alleged he had made in the village during his Gauntiaship. The Zamindari was taken charge of by the Court of Wards sometime in the year 1908. Mohan thereupon took a lease of the home farm in the village of Sargipali from the Court of "Wards. Subsequently, in October 1909, he presented a petition to the Court of Wards claiming that he was entitled by inheritance to the Gauntiaship of Sargipali; that Kuber had no right to surrender the Gauntiaship to the Zemindar and that he should be restored to the Gauntiaship. This petition appears to have been rejected and in consequence Mohan instituted the suit out of which this appeal arises, asking for the recovery of the Gauntiaship of the village of Sargipali. The suit was instituted in the year 1913 and was decreed by the learned Subordinate Judge. On first appeal to this Court the learned Judges who heard the appeal differed: Mr. Justice Roe being of the opinion that the appeal should be allowed and Mohan's suit dismissed; and Mr. Justice Jwala Prasad being of the opinion that the learned Subordinate Judge was right in decreeing Mohan's suit and that the appeal should be dismissed. In accordance with the rules of the Court, the appeal was accordingly dismissed. Against that decree an appeal has been preferred under the Letters Patent and that is the appeal which we have now to consider.
2. It is desirable to state in the first instance what can be gathered in regard to the status of a protected Gauntia from the provisions of the Central Provinces Land Revenue Act of 1881; and for this purpose one must refer to Section 65A of that Act. It appears from the provisions of that section that it was thought desirable to provide for the protection of certain selected Thiccadars, Gauntias and farmers of villages. "Gauntia" is the name ordinarily given to village headmen, but the use of the term in connection with Thiccadars and farmers indicates that the name was generally used in the Central Provinces for the person who was responsible for the collection of the rent in a village. Section 65A provides that where a Gauntia is able to prove that he has been in possession of a village or part of a village for a period of not less than 20 years, or where he is able to prove that he, or those from whom he has inherited, has or have established the village or substantially improved it, at his or their coat, he is entitled to claim the protection provided for by that section. The protection consists partly of a protection against ejectment by the Zemindar except under certain conditions, and partly of protection against sub division or transfer of the Gauntiaship. It further provides that a protected Gauntiaship shall be heritable and not transferable by sale, gift, mortgage or dower, that it shall not be saleable in execution of any decree nor shall any decree be passed for the sale thereof, that it shall not be partitioned and that it shall devolve on one member only in the family. The protection further deals with the rights of a Gauntia to renew his Gauntiaship lease upon terms which may, in case of disagreement, be settled by the Deputy Commissioner. It is quite clear from the recitals in these provisions that the object of the enactment was not for the benefit of the Zemindar; but that the object was to retain, if possible, certain selected families in the Gauntiaships of their villages and to protect them against transfers and subdivisions. It is important to bear this general intention of the law in mind in dealing with the facts of the present case.
3. As I have said, Karuna was the protected Gauntia of the villages of Bandipali and Sargipali. He died in the year 1900 leaving him surviving three sons: Mohan, Kuber and Balaram. There is no evidence that there was any separation in the family and the presumption is that the family remained joint. In these circumstances the law on the subject clearly is that Mohan succeeded to the Gauntiaship of the two villages of Bandipali and Sargipali, unless at the time of his succession he elected to resign his right in favour of one or other of his two brothers. This is clear from the provisions of Sub-section (4)(b) of Section 65A of the Central Provinces Land Revenue Act, which says that when on the death of a Thiccadar there are two or more heirs bearing the same relationship to him, the eldest of such heirs shall succeed," provided that the eldest of two or more such heirs shall be at liberty, at the time of succession, to resign his right in favour of another heir bearing the same degree of relationship to the deceased Thiccadar as he himself bears. It is quite clear, therefore, that in the absence of evidence of resignation by Mohan at the time of his succession he was entitled to the Gauntiaship of the two villages of Bandipali and Sargipali and that his right was superior to that of his younger brother Kuber. Kuber would, therefore, not be entitled to make the surrender which he purported to make in the year 1907 in favour of the Zemindar. So far, therefore, as the provisions of this section are concerned, Kuber could only succeed upon evidence that at the time when Mohan succeeded to the Gauntiaship on the death of his father, he (Mohan) resigned his right in Kuber's favour. The question we have to determine, in the first place, is whether there was any such resignation. The appellant is met at this stage with a difficulty: The suit brought by Mohan out of which this appeal arises was not contested by Kuber himself; and Kuber was not called as a witness in the case. The suit was contested only by the Court of Wards on behalf of the Zemindar in whose favour the surrender had been made by Kuber in 1907. There is thus no statement or evidence by Kuber that there was any such resignation in his favour; and there is no other evidence of any kind bearing on this question. There is also no definite plea in the Zemindar's written statement that there was in fact any such resignation. We have been asked to infer that a resignation actually took place from the following circumstances:
A series of rent-receipts commencing with the year 1901 proving payment by some four tenants of the village of Sargipali, most of which are signed by Kuber as "Kuber Gauntia." Reading these receipts together with the case of the plaintiff that Kuber did actually collect rents of the entire village of Sargipali, we may accept the fact that Kuber did collect rents of the village and that he did sign himself as 'Kuber Gauntia.
4. There is also one instance of the year 1906 (Exhibit J) in which Kubar sued a tenant of Sargipali and obtained a decree for rent.
5. The appellant also relies upon the fact that Kuber was recorded as the Gauntia of Sargipali in the Khewat (Exhibit H) and that the Jamabandi prepared by the Settlement Officer was in accordance with that Khewat.
6. The appellant further relies upon the fact that after the Court of Wards had taken charge of the Zemindari in 1908, Mohan, without objecting to the surrender which had in the meantime been made by Kuber, applied to the Court of Wards for the settlement of the home farm. To some extent the appellant also relies upon the fact that Kuber made the surrender in 1907 describing himself as the Gauntia of the village. Some little inference may also be rightly drawn from the fact that Mohan in his evidence pretends that he was not aware of the entry in the Khewat until 1908.
7. A case was attempted to be made out in the first Court that the entry in the Khewat was made with the consent of Mohan and it was even suggested that Mohan put in a petition consenting to the entry of Kuber's name as the Gauntia of Sargipali. The only evidence, however, which was adduced to support this case was that of a witness who was discredited in cross-examination, and I agree with the learned Subordinate Judge and with the opinion expressed by Jwala Prasad, J., in this connection that the story is untrue. Even if this evidence were accepted as true, however, it would in my opinion be difficult to infer that it amounted to a resignation at the time of Mohan's succession.
8. There is a considerable body of evidence on the other side. It appears to be incontrovertable that so far as the Zemindar and the Government were concerned, Mohan succeeded to his father Karuna as Gauntia and was treated as the Gauntia from the time of the death of his father right up to the year 1912, within a short period of the institution of this suit. So far as the Zemindar is concerned, in respect of the period prior to the actual surrender by Kuber, there is a series of rent receipts showing payment by Mohan in his capacity as Gauntia; there is a mortgage bond of April 1902 executed by the Zemindar in favour of one Bairagi Dora in which the Zemindar recites that Mohan was the Gauntia of Sargipali and empowers Bairagi to realize rent from Mohan in discharge of the debt due by the Zemindar to Bairagi. Of about the same date there is an agreement executed by Mohan as Gauntia of Sargipali in favour of Bairagi Dora agreeing to pay him the annual rent of the two villages Bandipali and Sargipali. This is further supported by a series of receipts of 1903, 1904, 1905, 1906 and 1907 showing payments of rent by Mohan as Gauntia of Sargipali to Bairagi Dora. One of these receipts shows that the payment was made through Kuber. There is nothing to show that Kuber took any part in the payments of the other years. There is a letter written in 1908 by Bairagi Dora to Mohan Gauntia asking the latter to pay the rent and there are also demands made from time to time by the Zemindar. There is also a series of payments made to Government, apparently in discharge of a loan given by the Government for village improvement. These receipts run up to the year 1912 showing payments made by Mohan as Gauntia of the village.
9. From this evidence one thing is certain, and that is that upon the death of Karuna Mohan was treated as Karuna's sole successor as Gauntia of the two villages of Bandipali and Sargipali; Mohan accepted that position, and the Zemindari papers show that they were framed upon that understanding. It is, moreover, quite clear that there was no resignation in any sense of the term so far as the Zemindar and the Government were concerned. In these circumstances I think it is impossible to infer from the mere fact that Kuber was permitted to collect rent of the village and that he succeeded in getting his name recorded in the Survey and Settlement papers, apparently with a view to making the surrender in favour of the Zemindar, that any resignation by Mohan in favour of Kuber took place at the time of his succession. It is quite clear that after Mohan had once entered as the heir of his father, it was not open to him under the provisions of the Central Provinces Land Revenue Act to transfer by sale, gift or otherwise in favour of his brother Kuber. It has been suggested that if he did so, he would be estopped from pleading that he was not entitled to do so. It is in my opinion not necessary to expressly decide whether the law of estoppel would operate as a bar in such an event, having regard to the clear provisions of the Statute. The cases relied on by Mr. Justice Roe in this connection are distinguishable, inasmuch as they relate to transfers of occupancy rights the law in respect of which is expressly for the protection of the Zemindar. As I have pointed out, the law upon the subject of transfers of Gauntiaship has no concern whatsoever with the interest of the Zemindar. Moreover, the leading case on the subject of estoppel in a case of transfer of occupancy rights, viz., Bhagirath Changa v. Sheikh Hafizuddin 4 C.W.N. 679 itself expressly distinguishes a case in which a transfer had been made in a representative character. The fact is that in the present case I am unable to hold that there was any transfer by Mohan in favour of Kuber and if ever there was a case which would be excluded from the operation of the principle of estoppel, it is this one; for, in the first place, it is manifest that Mohan throughout held himself out. as Gauntia of the two villages and in the next place, he was treated as Gauntia by the Zemindar right up to the date of the surrender by Kuber. It is, therefore, quite impossible for the Zemindar to plead that he was misled by Kuber in regard to the Gauntiaship of Sargipali. He appears to have been perfectly aware up to the date of Kuber's surrender that Mohan was the Gauntia; and it is certainly open to considerable doubt whether, when he knew that Mohan was entitled to succeed to his father and that there was an express provision of law forbidding Mohan from making a transfer in favour of his brother, he really believed that Kuber was the Gauntia in respect of Sargipali.
10. Some reference has been made to a judgment of this Court in which the late Chief Justice said that he could discover nothing in the incidence of the tenure of a Gauntia which showed that the Gauntia was not entitled to relinquish his rights Lal Narupraja Singh v. Bhabani Teli 37 Ind Cas. 107 : 1 P.L.W. 449 : 1 P.L.J. 293. That observation was made only by way of obiter dictum and it appears to me that it is unnecessary for the present appeal that we should determine the point. At the same time it is desirable to mention that I am of opinion, having regard to the nature of the protection given to a protected Gauntia by Section 65A, that if it were held that a Gauntia could surrender in favour of the Zemindar, it would be possible to render the provisions of the Central Provinces Land Revenue Act infructuous, inasmuch as the Zemindar could obtain a surrender from a Gauntia and thereafter lease the Gauntiaship to some other person and thus transfer the Gauntiaship to another, which is the result which the Act is intended to prevent.
11. I am of opinion, therefore, that the defendant-appellant has entirely failed to prove that there was any resignation by Mohan in favour of Kuber either at the time of his succession or subsequently. In these circumstances I am of opinion that the suit was rightly decreed.
12. Certain preliminary objections were taken by the learned Vakil appearing on behalf of the appellant. It was contended that the suit was not maintainable in the Civil Court by reason of the provisions of Section 132 read with Section 152 (a) of the Central Provinces Land Revenue Act. Section 132 enables the Deputy Commissioner to enquire into the'" claims of Gauntias and to declare them to be protected for the purposes of Section 65A. Section 152 provides that no Civil Court shall entertain any suit concerning any matter which the Revenue Officer is empowered to determine or dispose of. It is contended that this was a suit for the enforcement of the claims of a Gauntia and that, therefore, the Deputy Commissioner was empowered to dispose of it: and that the Civil Court was prohibited by the provisions of Section 152 from entertaining it. In my opinion, however, it is quite clear that the provisions of Section 132 were drawn up with reference to Section 65A and were intended to enable the Deputy Commissioner merely to determine claims to protection under Section 65A and to enforce the provisions of that section. It was never, in my opinion, intended that the Deputy Commissioner should be empowered to deal with a suit for ejectment or for the recovery of a Gauntiaship.
13. In regard to the objection upon the ground of want of notice of suit I agree with the judgments of Mr. Justice Roe and of Mr. Justice Jwala Prasad.
14. Some argument has also been addressed to us upon the provisions of Section 237 of the Indian Contract Act, which entitles a person dealing with an agent to believe that the agent is acting within his powers. Nobody has ever suggested in this case that the Zemindar was induced to believe that Kuber was empowered by Mohan to surrender his Gauntiaship and, therefore, the provision of the section referred to has no application to the present case.
15. Reference is also made to Sections 68 and 82 of the Bengal Tenancy Act, which require Settlement Officers to record the fact of actual possession and provide that the entry regarding the fact of actual possession shall be presumed to be correct until the contrary is proved. Now, all that the entry in the Record of Rights shows is that possession of the Gauntiaship at the time of the publication of the Record of Rights was with Kuber. The presumption attaching to the entry in the Record of Rights is only in regard to possession, and it is sufficient to enable Mohan to succeed in this action that he should establish a better title than Kuber, whatever the fact of possession might have been in the year 1906-1907. Having regard to all the circumstances of the case and the fact that the surrender in favour of the Zemindar took place so soon after, I am of opinion that the presumption attaching to the entry has been sufficiently rebutted by the other evidence to the effect that Mohan was treated by the Zemindar and by the Government as the sole successor to the Gauntiaship upon the death of his father Karuna. Moreover the presumption as I have said, is only one in favour of possession and apart from the evidence as to possession Mohan would be entitled to succeed upon the evidence that he has a better title. In all the circumstances of the case I am of opinion that the suit was rightly decreed by the learned Subordinate Judge and I would, therefore, dismiss this appeal with costs.
Atkinson, J.
16. I entirely agree in the conclusions arrived at by my learned brother. I desire, however, to add my own opinion as to what I believe to be the true construction of Section 65A, Clause (4) (6) of the Central Provinces Land Revenue Act, 1881, in so far as it concerns the question arising for our decision. Section 65A was mainly designed to afford protection to the class of persons owning a proprietary interest in land known as Gauntias, and to secure for them, in the enjoyment of their property rights, security of tenure, and subject to the incidents attaching to their tenure to save them from arbitrary eviction by capricious landlords. Thus by the Central Provinces Revenue Act of 1881, Section 65A, the tenure of a Gauntia was declared to be heritable; but not transferable by sale, gift, mortgage or dower. The uncertainty which prior to the passing of this Act antecedently attached to the interest of a Gauntia tenure-holder ceased, and he acquired a perpetual estate or interest in the lands forming the subject-matter of his tenure subject to the conditions against alienation specified in Section 65A. Once a Gountia received the certificate contemplated and provided for by the Act, he became what is termed a "protected Gauntia;" and thereupon he became, but not till then, vested with all the rights and benefits conferred upon a Gauntia by this Act. For obvious reasons it was thought desirable by the framers of the Central Provinces Revenue Act of 1881 to provide that the tenure should vest in one person only, even though he with others might have a joint interest therein; and accordingly the Act provided for the devolution of a protected Gauntia tenure upon the death of the first and each succeeding protected Gauntia" by enacting that when on the death of a Thiccadar there are two or more heirs bearing the same relationship to him, the eldest of such heirs shall succeed, provided that the eldest of two or more such heirs shall be at liberty at the time of succession to resign his rights in favour of another heir bearing the same degree of relationship to the deceased Thiccadar as he himself does."
17. In my opinion this section is mandatory in its terms. The eldest heir of the last protected Gauntia shall succeed to the tenure, unless at the time of succession he resigns his right to inherit as a Gauntia in favour of another heir of equal degree. The right of the eldest male heir to resign or renounce his rights as a Gauntia, with a view of giving up all claim to inherit the estate which has by statutory devolution descended upon him must be exercised at the time when the succession opens, viz., on the death of the last protected Gauntia. A right of election is conferred upon the eldest male heir; and a time is definitely specified when that election must be made by him. No chance for procrastination is allowed; but there and then when the right to succeed accrues the right of election must be exercised; and when the election is so made by the person upon whom the tenure devolves by inheritance, it is irrevocable in its operation; and automatically one heir of equal degree is substituted for another. Further in my opinion the right of election must be exercised in respect of the entire estate which devolves on the eldest male heir. If two or more villages form the protected tenure of a Gauntia, even though they may have been declared protected by separate certificates at different times, the eldest male heir must exercise his choice of resignation or adoption in respect of all or none of such villages; there can be in my opinion no splitting up of the estate or tenure into different parts having distinct entities. To permit of such a severance of the estate would be destructive of what appears to me to be the governing intention of Section 65A, viz., the concentration of the ownership of the entire protected Gauntia tenure in one person only. Section 65A, Clause (4) (6), expressly says that the eldest male heir shall be at liberty at the time of succession to resign his rights in favour of another heir. I take the words his rights" in that section to mean all the rights which have devolved upon such eldest male heir, and not merely some of them. Therefore, even if there was a resignation proved by Mohan in favour of Kuber of the village of Sargipali, only when the entire protected interest that devolved on Mohan was comprised of the two villages of Bandipali and Sargipali in my opinion such attempted resignation by Mohan would have been invalid and inoperative in law to extinguish the rights of Mohan in the village of Sargipali.
18. Karuna died in August 1900. Thereupon the rights of the plaintiff accrued in succession to the protected estate which devolved upon him. Upon the death of Karuna it is admitted that there was mutation of names in the landlord's rent register and books; and that Mohan was recorded by the landlord as the Gauntia in respect of Bandipali and Sargipali. This, in my opinion, was an unequivocal act of adoption by Mohan of his intention to accept the estate which had devolved upon him. But irrespective of this the evidence by no means satisfies me that Mohan ever at any time resigned his rights in the village of Sargipali in favour of Kuber. The onus is on Kuber and those who derive title through him to establish as an indisputable fact the factum of resignation by Mohan. In my opinion the defendant No. 1 has utterly failed to discharge this onus. I would just desire to add that though Section 65A speaks of "resign" this in legal phraseology really means "release", which has an accepted legal meaning. The best proof of resignation would be the production of a deed of release, but no document in the nature of a deed of release has been produced to establish the fact of resignation by Mohan in favour of Kuber. We are asked to infer as an inference of fact from the evidence, documentary and oral, adduced by the defendant No. 1 that Mohan in or about the year 1902 resigned his rights in village Sargipali in favour of his brother Kuber. I for one unhesitatingly refuse to draw any such conclusion from the evidence; nor do I think that the facts relied upon by Mr. Justice Roe warrant the deduction that ha deduces therefrom. But even if evidence had been adduced from which the inference could be fairly drawn that in or about the year 1902 the plaintiff resigned his rights in respect of the village of Sargipali in favour of defendant No. 2, it would be of no avail inasmuch as any such resignation would have occurred long subsequent to the time when the succession opened and the right to resign accrued, there having been in the meantime after the death of Karuna a deliberate adoption by Mohan showing an intention on his part to succeed to the lands in suit.
19. I agree, therefore, that the suit was rightly decreed and that this appeal must be dismissed with costs.
Ali Imam, J.
20. I am in entire agreement with the view expressed by my learned brothers that this appeal should be dismissed with costs. I, however, wish to add that I find nothing in Section 65A of the Central Provinces Land Revenue Act to show that the protection afforded to the tenure of a Gauntia is to extend to a group of tenures. In the present, case Karuna had two Gauntiaships vested in him, namely, one for Sargipali and the other for Bandipali, and in my opinion on his death it was open to Mohan to resign at the time of his succession in favour of his brother Kuber either both the Gauntiaships or one of them. On the evidence I hold that he did not do so. Upon the evidence on the record it is quite clear that upon the death of Karuna, Mohan succeeded to the Gauntia-ship of the two villages; that his name was recorded as Gauntia in the Zemindar's books and that he continued as Gauntia all along. The position of his brother Kuber, after the death of the father, was, in my opinion, that of an agent of Mohan. There having been no valid resignation by Mohan in favour of Kuber at the time of the death of Karuna, Kuber had no right whatever to the Gauntiaship of the village of Sargipali. I am also of opinion that Kuber had no title whatever to make the surrender in favour of the Zemindar. I agree, therefore, with the decision of my learned brothers.