Debi Singh and Others vs F.E. Christian and Others

Das, J.—This was a suit by the respondents in substance to have their title declared to the underground rights in Mouzah Madhuban which is one of the Mouzahs comprised in gaddi Domchanch of which Mr. Christian, plaintiff No. 1, is the proprietor. Messrs. P.E. Christian & Co., Ltd., the plaintiffs second party, have taken a lease of the mining rights in gaddi Domchanch and claim to have the sole right to work the mica in the gaddi. The defendants claim through the khorposhdar and put forward two specific defences to the suit, first that there was an express grant of the mineral rights to Khem-karan Singh, the predecessor-in-title of the defendants, by Tekait Bichitra Narain Singh, the predecessor-in-title of the plaintiffs, sometime in 1819, and secondly that the interest of the holder of the gaddi in the properties comprised therein is that of Mokarraridar, and however defective the title of the defendants may be the plaintiffs have no title to the minerals in the gaddi. The learned Subordinate Judge has decided both the points against the defendants and has given the plaintiffs a decree substantially as claimed by them.

I will deal first with the question whether there was a grant in favour of the defendants of the underground rights in Mouzah Madhuban. It ought to be pointed out at once that Mr. Christian has purchased the gaddi at an auction sale in 1904 and that he is completely bound by any transfer that may have been made by any of his predecessors-in-title. It is the case of the defendants that on the 4th October, 1794, Tekait Bichitra Narain Singh, who was the then holder of gaddi Domchanch, made a maintenance grant of Mouzah Madhuban to Khemkaran Singh. It is not suggested that there was an express grant of the mineral rights on the 4th October 1794, but the defendants strongly rely upon a sanad alleged to have been granted by Tekait Bichitra Singh to Khemkaran on the 1st October, 1819. The sanad recites the grant of the 4th October, 1794, and in the last line states that the grantee shall have "the surface and sub-soil rights." The plaintiffs challenged the genuineness of the sanad, and the Subordinate Judge came to the conclusion that it was not genuine. In 1865 a transaction is alleged to have taken place between Tikait Churaman Singh, the second in descent from Bichitra Narain and Tekdhari, the son of Khemkaran, upon which the defendants strongly rely. Their case is that the maintenance holder encumbered the village granted to him to such an extent that Tikait Churaman Singh resumed twelve annas of the village and undertook to pay off the creditors and left the four annas as well as the khudkasht lands and the income from the mica mines for the maintenance of Tekdhari and his family. This case certainly receives strong support from the terms of a letter alleged to have been written by Churaman Singh to Tekdhari on the 26th September, 1865. The question again is, is it a genuine letter, and the Subordinate Judge has given an unhesitating reply in favour of the plaintiffs, Churaman Singh was succeeded in the gaddi by Tahal Narain Singh, and Tahal Narain dying without issue, Maharaj Singh, the son of Tekdhari (of the junior branch) succeeded to the gaddi. On the 5th December, 1894, Maharaj Singh executed a khorposh grant in favour of his brother Sukhlal represented in this action by defendant No. 29. The terms of this grant which is undoubtedly authentic, are of considerable importance in this case and ought to be set out in full. The grant is in these terms:

I, Tikait Maharaj Singh, Malik and zamindar, do declare as follows:

Mouzah Madhuban together with tola Ekdarwa belonged to me and my brother, Kuar Sukhlal Singh, an ancestral khorposh property; 12 annas share thereout had been sold to Tikait Churaman Singh, malik of Domchanch gaddi, and I and my brother remained in possession of 4 annas share only. Tikait Tahal Narain Singh, son of Tikait Churaman Singh died childless and I inherited the entire property left by Tikait Tahal Narain Singh, deceased, according to family custom, law of inheritance and the usage prevalent in the country. Accordingly I became the Tikait and malik, in place of Tikait Tahal Narain Singh, deceased, of the entire property left by him and had name recorded in the Land Registration Department. (Now) I am the proprietor in possession of the entire property left by Tikait Tahal Narain Singh. In this way, I have acquired by inheritance from the deceased Tikait that 12 annas share which had been sold according to the custom prevailing in (my) family and amongst (my) caste people residing in this country. I have and wish to make a khorposh grant in favour of my brother Kuar Sukhlal Singh. Therefore, I hereby make a khorposh grant of the entire 16 annas of village Madhuban and tola Ekdarwa, with the exception of brahmottor and shlvottar lands, etc., lying therein to Kuar Sukhlal Singh, fixing the annual rental thereof at Rs. 25 besides legal cesses which are legally levied at present or which may be levied hereafter from the year 1308 Fasli. (Now) Kuar Sukhlal Singh aforesaid and his descendants generation after generation should remain in possession and appropriate the proceeds of the khorposh property on payment of the said kist as long as any male descendant of his family exists. In case there be no male issue of the family of Kuar Sukhlal Singh aforesaid living the said khorposh property, details whereof are given below, shall devolve upon the male descendant of my family free from defect and encumbrance and this is the custom prevailing in the families of my caste people. The said sum of Rs. 25 to be paid as rent shall not be enhanced or reduced so long as any male descendant of the family of Kuar Sukhlal Singh will remain in possession. Therefore, I have of my own accord executed this patta by way of a sanad of khorposh grant so that it may be of use when required.

The plaintiffs strongly rely upon this document and contend first that it completely destroys the validity of any argument that may be founded on the alleged letter of Churaman Singh to Tekdhari, dated the 26th September, 1865, and secondly that the transaction of the 5th December, 1894, must be looked upon as fresh grant made by the holder of the gaddi to a junior member, and that the defendants, as claiming through Sukhlal Singh, cannot go beyond the terms of the khorposh grant of the 5th December, 1894.

Now, in regard to the sanad alleged to have been executed by Bichitra Singh On 1st October, 1819, the learned Subordinate Judge rightly points out that the value of the document as evidence must depend upon the corroboration derivable from external circumstances, e. g., from the documents having been produced on previous occasions upon which it would naturally have been produced, if in existence at the time or from acts having been done under it. In the first place, the only necessity for the sanad was to intimate "to the tenants, mustajirs and servants" of the gaddi (for it is to them that the document is addressed, and not to Khemkaran, the grantee) that a khorpash grant had been made in respect of Mouzah Madhuban to his brother. It was contended on behalf of the defendants that it became necessary for Tekait to make an express grant of the mineral rights as the grant of 1794 was silent on this point. But there is no foundation whatever for this argument. The sanad of the 1st October, 1819 is not a maintenance grant, it merely recites the terms of the maintenance grant, and is addressed, not to the grantee, but "to the tenants, mustajirs, servants and mosadies of gaddi Domchanch."

The learned Subordinate Judge has taken the view that the sanad would have been produced before the Settlement Officer during the proceedings in connection with the cadastral survey of the Mouzah if it had been in existence at the date (of the cadastral survey. Now this is the only document which gave them underground rights, and as such it was a valuable document of title. There is no satisfactory explanation why it was not produced, and I am not prepared to differ from the Subordinate Judge as to this estimate of the sanad.

But assuming that the sanad is a genuine document the defendants cannot found any right upon the sanad. It is true that the grant was to Khemkaran and his heirs but as the law then prevailed, the grant could not operate beyond the life of the grantor. Until the decision of the Judicial Committee in Rani Sartaj Koeri v. Rani Deoraj Kuan (1882) 10 All. 272 it was the settled law in India that the holder of an impartible estate had only a limited estate and except for special justifiable causes had no power of alienation beyond his life-time. The subsequent holder of the estate might indeed have confirmed the grant and such confirmation operated as a confiscation and re-grant, but the grantee could not claim to hold under the original grant upon the death of the grantor. It is true that this interpretation of the law was reversed by the Judicial Committee in Sartaj Koeri''s case (1882) 10 All. 272, but the reversal of the previously accepted interpretation of the law did not displace, its application to the contract contained in the transaction of 1794 and 1819, the parties to which were bound by the law as then understood. See Abdul Aziz Khan v. Appayasami Naicker (1903) 27 Mad. 131. If I am right in this view, the rights of the defendants must depend on the grant of 1894 and not on the grant of 1819, and it is entirely irrelevant to consider whether there was a grant of mineral rights to Khemkaran.

The only other document on which the defendants rely is the alleged letter of Churaman Singh, dated the 26th September, 1865. The letter suggests that Churaman Singh was entering into possession of 12 annas of the mainterance village in order to enable him to pay off the creditors of Tekhari Singh. The khorposh grant of the 5th December, 1894, which is beyond question an authentic document, asserts that 12 annas interest in the village was sold to Churaman Singh. There is no suggestion in the document of 1894 that Maharaj Singh and Sukhlal Singh had any possession of the underground rights. On the other hand, it is definitely asserted that after the sale of the 12 annas interests, they remained in possession only of the remaining four annas. In my opinion, it was open to the Subordinate Judge to take the view that the alleged letter of Churaman Singh is not genuine document.

But, in the view which I take of this case, it is unnecessary to consider whether that letter is genuine or not. In my opinion, the rights of the khorposhdar, whatever they are, must be based on the grant of the 5th December, 1894. The instrument contains words of grant and purports to make a grant of 16 annas of village Hadhuban to Sukhlal Singh. The words are precise and clear, and they must be so interpreted. The construction cannot be defeated merely because there may be ground for thinking that the grantee was already in possession of 4 as. interest in the village under earlier grants. It is conceded that the instrument of the 5th December, 1894, does not confer any underground rights upon the grantee. I agree with the Subordinate Judge that it has not been shown that there are any underground rights in the defendants.

The only other point is whether the plaintiffs have any such rights. It is contended on behalf of the defendants the plaintiff No. 1 is a tenure-holder, and not a zamindar and that a tenure-holder as such has no title to the minerals unless it is shown that there was an express grant of the minerals to him. Now the plaintiff No. 1 has purchased the right, title and interest of the Tekait of Domchanch at an execution sale. The question is, what was the status of the Tekait of Domchanch. Now Ex. 3, the report of Capt. Wilkinson, dated the 3rd October, 1834, shows that Domchanch was permanently settled with the Tekait in 1197. As Mr. Sifton''s final report on the survey and settlement operation in the District of Hazaribagh shows, the gaddi is entered in the Collectorate register of revenue-paying estates and it is entered in the record-of-rights as settled permanently with the holder. It is conceded that the Tekait held the estate directly under the Government. It may well be that the Government did not give any right to the minerals to the Tekait, but as was pointed out by Lord Macnaghten in Durga Prasad Singh v. Braja Nath Bose (1912) 36 Cal. 696 "apparently the Government does not claim the minerals under permanently settled estates. However that may be, the Government has never claimed the minerals under the two Mouzahs or either of them, or put forward any claim inconsistent with the rights now asserted by the, zamindar. The rights of the Government, whatever they are, will not be prejudiced or affected by the result of a suit to which it is not a party."

In my opinion there is no substance in the points argued on behalf of the defendants and I would dismiss this appeal with costs.

Ross, J.

I agree.