Harakhanth Ohdar and Others vs Ganpat Rai and Others

Manohar Lall, J.—This is an appeal by the plaintiffs against the decree of the learned Subordinate Judge of Ranchi dated 20th June 1936, by which he dismissed the suit brought by the appellants for a declaration of their title in respect of 14 annas and 2f pies share in village Buti and also for a declaration that the sale in execution of a certain mortgage decree obtained by Ganpafe Rai, defendant 1, has not affected the plaintiffs'' title. The principal question for decision is the effect and construction of the jagir patta granted by the Maharaja of Chota Nagpur on 23rd October 1906 in favour of the appellants.

The facts of the case are somewhat complicated but may be summarized so far as they are relevant for the purpose of deciding the controversy between the parties. It is common ground that some time before 1839 the family of the plaintiffs, whose remote ancestor was one Deo Mahto, was in possession of village Buti and some other villages belonging to the Maharaja of Chota Nagpur (the exact nature of the right under which the family held these villages is a matter of serious controversy between the parties and will be considered later). The, genealogical table printed at p. 32 is accepted by the parties as correct. The family of the plaintiffs belongs to an aboriginal tribe in Chota Nagpur and, in the absence of other evidence and circumstances is ordinarily governed by the rules and customs appertaining to their tribe--they are Kurmi Ohdars. The meagre evidence on the record indicates that they are Hindus, but the learned advocate appearing for the respondents vehemently protested against the drawing of any such inference.

As I shall show later, it may be assumed for the purpose of this case that the family, is not governed by any school of Hindu law. The table shows that Deo Mahto had two sons, Udairam and Sit air am; the former had two sons Ratan Mahto and Lumba Mahto. Ratan Mahto was the father of Ghanu, Pirit and Dhanu. Ghanu''s branch consisted of his sons Premnath, Lalit and Nandram. Premnath''s grandson was Gourinath, the father of Surajnath, Jaleswar and Biseswar. Surajnath was the eldest of the three sons of Gourinath and died leaving three sons Bhuneswar, Harakhnath and Puninath.

The plaintiffs in the present action are the two younger sons of Surajnath, that is to say Harakhnath, plaintiff 1 and Puninath, plaintiffs; and the two younger brothers of Surajnath namely, Jaleswar, plaintiff 4, and Biseswar, plaintiff 3. The eldest son of Surajnath is Bhuneswar, who is defendant 2 in the action. Some other names in the family of Deo Mahto may be mentioned here. Nandram, the youngest brother of Premnath was the father of Kashinath, who left a widow named Leda Kurmin Pirit, the younger brother of Ghanu, was the father of Ghuraman Dhanu, the youngest brother of Ghanu, was the father of Damru and was the grandfather of Bhichuk and Gulal Mahto. Bhichuk was the father of Bodhnath. The second son of Udairam, as already stated, was Lumba Mahto who was the father of Girdhari and the grandfather of Puran. This completes the mention of the necessary descendants of Udairam, who was the eldest son of Deo Mahto. Sitaram, the second son of Deo Mahto, was the father of three sons, Sadho, Gandauri, and Gopal Mahto, who was the ancestor and grandfather of Anant.

The case of the plaintiffs is that by a registered patta dated 23rd October 1906, the Maharaja of Chota Nagpur granted village Buti and five other villages in jagir right to Surajnath and his two brothers Jaleswar and Biseswar, who since that date enjoyed the villages jointly; that by the same grant some other members of the family of Deo Mahto, who were specifically named in the deed, secured the right to remain in possession of some lands as khorposhdars; that after the death of Surajnath, his three sons, namely plaintiff''s 1 and 2 and defendant 2 came to have equal shares in the property owned by their father ; in this way they held 5 annas and 4 pies of village Buti, the remaining 10 annas and 8 pies remaining joint with Jaleswar and Biseswar; that the share of 5 annas and 4 pies left by Surajnath was enjoyed jointly by his three sons in the proportion of 1 anna and 9⅓ pies each. On 15th February 1927, Bhuneshwar, defendant 2, executed a mortgage bond in favour of Ganpat Eai, defendant 1 for a total sum of Rs. 3000 but gave in security the entire village Buti, although according to the plaintiffs he was the owner of 1 anna 9⅓ pieff only in this village. Defendant 1 instituted a suit to enforce his. mortgage and in due course obtained a decree in execution whereof he purchased village Buti on 20th November 1934--the plaintiffs were no-parties to the mortgage action. The present suit was therefore instituted on 22nd December 1934 for a declaration that the execution sale does not bind the interest of the plaintiffs inasmuch as defendant 2 had no right to mortgage more than his share in village Buti. During the pendency of the suit defendant 1 as auction purchaser, dispossessed the plaintiffs from their portions of village Buti. Hence the plaintiffs amended the plaint and asked for recovery of possession after partition of 14 annas and 2-f pies share of village Buti. This is the principal relief claimed by the plaintiffs and if they are entitled to it they would be also entitled to a decree for mesne profits.

The only defendant who contested the suit was defendant 1, the auction purchaser. The principal allegations in the written statement are that village Buti belonged to Surajnath, the father of defendant 2 exclusively and that the plaintiffs including plaintiffs 3 and 4 had no right to it nor did they obtain any right thereto by jagir grant of October 1906 which was merely confirmatory and did not create any fresh rights.

His further defence was that the family of the plaintiffs and defendant 2 was governed by the rule of primogeniture under which the eldest son in the seniormost branch succeeds in respect of tenures held by the family, the younger sons being only entitled to maintenance or khorposh and that, therefore, Bhuneshwar, who was the seniormost member, at the date of the mortgage of 1927, of the eldest branch of Deonath was the owner of village Buti so that he had full rights to execute the mortgage bond in favour of defendant 1, who obtained all mortgage decree.

It was also asserted that there was a local custom prevailing in the district under which all jagir tenures and in particular those jagir tenures which were under the Maharaja of Chota Nagpur were governed by rule of primogeniture--in other words the case of the defendant was that there was a sort of lex loci in the district under which any jagir, such as the jagir in the present case, would descend to the senior member of the seniormost branch of the family and in particular as the present jagir was a jagir under the Maharaja of Chota Nagpur there was a well recognized custom that such jagir must descend in a similar manner.

The learned Subordinate Judge decided the case against the plaintiffs on all these important issues. He held that the family of the plaintiffs and defendant 2 was governed by the rule of primogeniture which was the customary rule prevalent in the family and that Surajnath Ohdar was the sole jagirdar of village Buti and on his death defendant 2 alone succeeded him so that defendant 1 obtained a valid mortgage decree with respect to the entire village Buti. The questions of limitation, acquiescence and estoppel were, however, decided in favour of the plaintiffs.

The principal question, therefore, which falls to be determined in the present case is the nature of the rights under which village Buti was held on 15th February 1927, the date when defendant 2 granted a mortgage of the entire village in favour of defendant 1 and secondly, whether the rule of primogeniture governs the descent of the properties held by this family and in particular of village Buti.

The earliest document upon the record is Ex. 5, p. 1, Part 3, a judgment in Title suit No. 3 of 1839 decided on 31st May 1841. The recitals in this judgment (which have been accepted as correct by the parties before us) show that one Bishwanath Deo, the Raj Guru of the then Maharaja of Chota Nagpur, was in possession of a number of villages including village Buti by virtue of brit and debuttar grants; he alleged that this village was held in temporary thica by Udairam (the son of Deo Mahto) and Gandauri (the second grandson of Deo Mahto), that on the expiry of the thica in 1829 the village was let out to Dhanu the grandson of Udairam and after relinquishment by him the village was kept in direct possession of the Raj Guru who gave it in thica settlement for three years from 1835 to 1837 to Bhimnath; but, on the expiry of the last settlement, Dhanu and Bhimnath put forward a claim by virtue of some jagir right before the proper officer under Regn. 15 of 1824 who affirmed their possession on 31st December 1838. The Raj Guru was directed to bring a title suit which he instituted on 15th January 1839. The defence to that action was found as stated in the judgment to be contradictory as sometimes it was alleged that the defendants had khuntkati rights, sometimes that they had mahtoi rights and sometimes that they had jagir or ancestral rights if not temporary ijara rights.

The Court decided that as the defendants'' ancestor and the defendants have for a long time been found to be in possession of the disputed villages (including village Buti), though it does not appear under what source of title, at a jama of Rs. 602 per annum, the plaintiff''s suit was unjust and was dismissed. The next document is another judgment. The recitals therein, fully relied upon by the parties before us, show that in the year 1866 Nandram, the son of Ghanu, instituted a suit for partition of village Buti and succeeded on 19th December 1866 against his eldest brother, Premnath, and against Damru, the son of Dhanu. The judgment (Ex. 5 at p. 6) states that at that time Pirit, the younger brother of Ghanu, had also brought a suit to obtain partition of village Buti. These two judgments show that the defendants'' ancestors were in possession of village Buti along with other villages, but the exact nature of their right was not known and could not be ascertained satisfactorily.

The last Raj Guru of the Maharaja of Chota Nagpur died in 1895 giving the right to the Maharaja to resume the villages which had been granted in jagir "putra pautradik" to the family of the Raj Guru. It appears that there was difficulty in the Maharaja obtaining khas possession on resumption of village Buti and some other villages which were in possession of the family of the plaintiffs. The recitals in the jagir patta and kabuliat granted by the Maharaja on 23rd October 1906 have been accepted before us as correct. The recitals show that village Buti was in October 1906 in the possession of Surajnath, Biseswar and Jaleswar (the sons of Gourinath), Gulelnath Ohdar, son of Damru, Puran, son of Girdhari and grandson of Udairam, and Anant, the great grandson of Sital Ram; that the Maharaja gave notice to these persons to give up possession but an objection was raised on their behalf that all the villages were their ancestral khuntkati jungle tarasi property with the result that the-Maharaja instituted a civil suit to recover khas possession over the villages against all these persons and others who had or alleged to have connection with the villages being suit No. 163 of 1906; that the suit was settled amicably, principally because the Ohdars had no documents on behalf of the ancestors of the Maharaja nor could they produce any other evidence regarding the khuntkati interest alleged by them and it was thought desirable that the harassment and expenses of the litigation may be avoid, ed by entering into an amicable arrangement which would confirm the possession, of the Ohdars subject to liability to pay the previous rent. Accordingly, the parties agreed that the Maharaja should grant a jagir ''putra pautradik'' in respect of the villages including the village Buti in accordance with the custom and usages prevailing in the Chota Nagpur Raj and to get a kabuliat executed to this effect that

so long as the said Ohdars shall have eon, son''s son and so on, that is to say, so long as they have their own male descendants, they shall peacefully enjoy, and appropriate (the produce from) the said mauza...sand the said Ohdars shallpay the rent Rs. 535-1-9 besides cess and public work cess year after year.... In case the said Ohdars, that is the grantees of this jagir patta, shall have no son, son''s son and so on, that is own male descendants,

the Maharaja and his heirs have full right to resume and enter into khas possession of the villages. By this patta a jagir was granted in favour of three persons only, Surajnath, Biseswar and Jaleswar, and by the kabuliat executed on 25th October 1906 Surajnath Ohdar (for himself and as brother, guardian and next friend of minor Jaleswar) and Biseswar Nath agreed to the terms just set out. Puran, Ohuraman, Anant, Bodhnath and Gulel Nath, who represented some of the other branches in the family of Deo Mahto, were described and treated in these two documents as khorposhdars and executed the kabuliat as such.

A perusal of the kabuliat shows at p. 20 (Part 3) that Puran was recognized to be in possession of some land in village Buti and Dumardaga, that Ohuraman and Anant were similarly recognized to be in possession of some lands in these two villages, that Bodh Nath was left in possession of the 10 annas out of the entire 16 annas share in village Kishunpur and some land in village Buti and Dumardaga, and lastly, that Gulel was left in possession of the remaining six annas of village Kishunpur and some land in village Buti and Dumardaga. The record of rights which came to be prepared on 5th January 1911 records the possession of the family of the plaintiffs under the jagir grant of October 1906. Column 2 desoribes Suraj Nath, Bises-war and Jaleswar as the owners in equal shares of village Buti under a resumable jagir grant from the Maharaja of Ghota Nagpur by a registered patta dated 25th October 1906. In serial 8, Mt. Ledan Kuari, wife of Kashinath, is entered as resumable jagir holder under Surajnath Ohdar and others of khewat No. 2. The other subsequent entries show that Surajnath Ohdar and his (two brothers in the second khewat were the jagirdars. The entry in the survey of rights in Chota Nagpur has a presumptive value u/s 84(8), Chota Nagpur Tenancy Act, and is entitled to great weight as pointed out by the Judicial Committee in AIR 1931 5 (Privy Council) . But as the basis of this survey entry is known to the Court, namely that it is based upon the jagir patta of October 1906, the rights of the parties will be presumed to be governed by the effect of this document.

It was strongly contended by the learned advocate for the appellants that whatever may be the previous history of this land the rights of the parties must be governed by the terms of the patta and kabuliat of October 1906. Sir Sultan Ahmad appearing on behalf of the defendants contested this position vehemently and argued that the amicable arrangement of October 1906 was no more than confirming the Ohdars in the possession of village Buti and that the rights of the parties were not altered by their entering into this patta and kabuliat. It seems to me that the contention of the appellants is correct. At the time when the patta and the kabuliat were executed a serious litigation was pending. The defendants were faced with this difficulty that they had no document to prove the nature of the grant under which they were holding the six villages including village Buti. This was not a new difficulty as is clear from the judgment, Ex. 1 of 1889, already referred to. The Maharaja had succeeded in resuming the other villages which his ancestor had granted in jagir to the Raj Guru and had instituted a suit in the civil Court to get possession of these six villages.

In these circumstances the parties adopted a wise course and took the result of the litigation in their own hands by avoiding a protracted litigation, which would have proved ruinous to the parties; they entered into a bona fide settlement which was obviously for the benefit of all concerned. The parties therefore must be governed by these two documents granting a new root of title under which the Ohdars were to hold village Buti and other villages in future.

Reliance was placed upon the observation of Atkinson J. in Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337. In that case the learned Judge held that the grants of 1765, 1769 and 1786 were subsisting in 1866 as valid legal grants and therefore the re-grant which was made on 8th September 1866 was a mere nullity. I do not take this observation to decide any such question as arises in the present case, if only for the fact that the prior existing grant or grants in the present case have not been proved and were admittedly not in existence at the time when the parties entered into the compromise in October 1906. The remarks of Atkinson J. were confined to the facts of that case--indeed he says in the next line:

If however the grant of 1866 had any legal force or efficacy I am of opinion it would operate as a grant upon the prior existing right and interest.

The case in Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337 did not deal with a case of compromise of a litigation which was then pending in the Court and the learned Judge was not required to consider the effect of the grant of 1866 as the result of a bona fide settlement of a dispute seriously pending in Court. Sir Sultan Ahmad relied upon the evidence of the plaintiff himself at page 6 where he stated that:

This village was owned by us from before the patta. All the villages covered by the patta were acquired by Deo Mahton, our ancestor, long before it. All the persons in whose names the aforesaid patta was executed are descendants of Deo Mahton. There was suit for resumption of the villages by the Raj against the abovenamed person. The suit was compromised and the aforesaid patta was executed.

Q. Properties of this patta were your ancestral?

A. Yes;

and upon the answer in the cross-examination at page 7:

We got patta from Maharaja in 1906. We claim-ed (sic) under this patta as well as on the basis of previously existing title, This patta is Manzoori, i,e., of consent;

and on the further answers in cross examination at page 8:

Our jagir is Putra Poutradik.... These six villages were held by our family from before the grant to the Rajguru. Our ancestor used to pay rent to the Maharaja directly before the grant to the Rajguru and after that to the Rajguru.

It is impossible to place any reliance upon the evidence of this witness. The learned Subordinate Judge who saw the witness stated in the judgment that the varying statements which were made by this witness from time to time went to show that he did not know what he had to say and he answered what he thought his pleader was requiring from him. This is not surprising because apart from his being highly interested the witness was speaking of events which happened more than 100 years ago. There is no other oral evidence of any reliable character on this matter. It must therefore be held that the rights of the parties are governed by the terms of the patta and kabuliat of October 1906. By these documents village Buti has been granted putra pautradik to three persons, Surajnath, Jaleswar and Biseswar. It may be stated here that Sir Sultan Ahmad on the last date of his argument drew our attention to an alteration in the kabuliat where the words "for self and as guardian, next friend and full brother of Jaleswar Nath Ohdar, minor" are penned through (see p. 20, in line 88, Part in). He wanted to argue from this that the kabuliat was never executed by or on behalf of Jaleswar and that the jagirdars were only Surajnath and Biseswar. The original kabuliat examined by us showed that the translation was correct and that these words have been penned through but not initialled. At the request of both parties we sent for the original register in which the kabuliat is copied, which is kept in the Registration Department.

In that register the words at the top of p. 21 "In the signature of Surajnath Ohda, the words ''brother, guardian and next friend of Jaleswar Nath Ohdar,'' are penned through" appear. We are therefore satisfied that the penning through of the words was not done subsequently, but we are unable to entertain the argument that Jaleswar had no interest in the jagir grant of October 1906. Throughout the trial before the learned Subordinate Judge, the fact that Jaleswar was a cosharer was admitted. The opening lines of the kabuliat at p. 18 are: "We are Suraj Nath Ohdar, for self and as brother, guardian and next friend of Jaleshar Nath Ohdarminor." Even if Surajnath bad sighed without the addition of "for self and as guardian" it must be assumed that he signed, as is stated in the opening lines of the kabuliat.

It may also be stated here that Sir Sultan Ahmad relied upon the written statements, Exs. B, B (1) and B (2), In Ex. B dated 6th February 1931, Bhuneshwar in a suit instituted by one Dwarka Nath said that the defendants are not Hindus governed by the Mitakshara School of Hindu law as alleged by the plaintiffs. To the same effect is the written statement by Haraknath, who is plaintiff 1 (Ex. B (1) at p. 66) and to a similar effect is the written statement of Puninath, who is plaintiff 2 (Ex. B (2) at p. 68). All these statements are admissions which can no doubt be used against Puninath, Haraknath and Bhuneswar but they are of no binding effect against Jaleswar and Biseswar who were no parties to the suit in which these written statements were made. But as I stated earlier, there is very little evidence upon the record to show that the family of the plaintiffs are Hindoos and governed by the Mitakshara School of Hindu law. The only evidence which I can find is in the cross-examination of Bharafch Mahton, witness 4 for the plaintiffs. He says at page ll, line 26 that he and the plaintiffs belong to the same caste and at line 46 he says: "I am Hindu. I call myself Chhatri," No issue was raised on the point and although I would have required very little evidence to hold that the plaintiffs are Hindus governed by the Mitakshara School of Hindu law, I must assume in the state of the present record that the plaintiffs are Dot Hindus. The rest of this assumption is that the grant of the jagir of October 1906 was to the three sons of Gourinath who took either as joint tenants or tenants in common. If they took as joint tenants, on the death of Surajnath the owners of the jagir would be Jaleswar and Biseswar. If, on the other hand, they took as tenants in common the jagir would belong in equal shares to Surajnath, Jaleswar and Biseswar and on the death of Surajnath it would descend to his three sons who would be entitled to hold it again in three equal shares provided there was no custom of primogeniture established in this family. What then is the effect of the patta and the kabuliat which show that grant of jagir rights to Surajnath, Jaleswar and Biseswar--three brothers of a non-Hindu family?

It seems to me that the question for determination in cases like the present is but one of intention to be ascertained with reference, to the terms of the particular grant. If the grant is to persons who are incapable of forming a Hindu joint family, they can of course take only as tenants in common (see the cases considered in Janakiram Chetty v. Nagamony Mudaliar AIR Mad. 273 and in particular Jogeswar Narain Deo v. Ram Chund Dutt (96) 23 Cal. 670). In Bai Diwali v. Patel Bechardas (02) 26 Bom. 445 it was held that

where property is given jointly to two persons living as members of a joint Hindu family, each donee takes an interest in the property which passes to his heirs at his death and not to the other donee by survivorship,

so that when two brothers, living in union as a joint Hindu family were jointly given certain property and one of them died childless, leaving a widow, the widow was held to be entitled to a moiety of the property as heir of her husband. It was pointed out that:

It need not be doubted that a donor can, when making his gift, limit the interest of the donee by giving an interest by way of survivorship to any other person living at the time of the gift,

but in each case the intention of the donor is to be gathered from the words which he has adopted and there is no presumption that the donor intended to annex the condition of survivorship which might have the effect of excluding the sons of one of the donees.

The case in Narfat Singh v. Mohamad Ali Hussain Khan (85) 11 Cal. 1 is an apt illustration. In that case the terms of a Government grant to the widow of Jagraj and his family came to be construed and their Lordships held that it was the intention of the Government that the land should be assigned for the benefit of Jagraj''s widow and his family as joint tenants and not as tenants in common. Applying these principles to the facts and the surrounding circumstances of this grant it must be held that by the grant of October 1906, Surajnath, Jaleswar and Biseswar became tenants in common of village Buti. This is the only construction that can reasonably be put upon the material words used in the patta and the kabuliat. Sir Sultan Ahmad strongly relied upon the final report on the survey and settlement operations in the district of Banchi, 1902-10 by J. Reid, I.C.S., Settlement Officer, Chota Nagpur, published in 1912 to show that the present jagir must be construed as a jagir to Surajnath only. Jagir grants are dealt with in paras. 252 and 258 at page 110 thus;

Jagir tenures are not partible and the rule of primogeniture which prevails in the family of the Maharaja of Chota Nagpur always regulates the succession to landed property among the various jagirdars and other tenure-holders who are of the same family as the chief,

and further

not only is this so, but nearly all the subordinate tenure-holders who are not of the same family have adopted the same custom of succession to the exclusion of the ordinary Hindu law of inheritance. Its prevalence is so marked that even members of the lower castes, who become land owners such as the Rautias and Kurmis, usually adopt it.

The opinion of Mr. Reid is undoubtedly entitled to weight but is not of much assistance in the present case which concerns a grant of jagir to three persons. Different considerations may apply where the jagir is granted to one person--if the rule of primogeniture prevails in that family it would descend to the eldest member. In the whole of the report there is no consideration of a case where jagirs are granted to more than one person. Sir Sultan Ahmad even went to the length of arguing that a jagir cannot be granted in law by the Maharaja of Chota Nagpur to more than one person. I am unable to accept the soundness of this contention.

In Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337, I find that one village Kena was granted in the year 1786 to Hari Sahi and Padam Sahi jointly (Hari Sahi and Padam Sahi were the two younger sons of Kharag Rai). The report is not very clear as to how this village descended on the death of Hari Sahi and Padam Sahi. Chapman J., observed at page 126:

It is common ground that in spite of the joint grant of some property to the two brothers Hari and Padman in 1786, the elder brother''s (Hari''s) son succeeded in preference to Padman''s.

It may be that Padman had succeeded to this village after the death of Hari and then Hari''s son succeeded after the death of Padman in preference to the latter''s son, or it may be that Padman had predeceased Hari and Hari''s son succeeded though the context would rather show that Hari had predeceased Padman and after the death of Padman the property went to Hari''s son. This case itself negatives the contention put forth that a joint jagir grant cannot be granted in Chota Nagpur by the Maharaja. Reliance was also placed upon the observation of Macpherson J., in Ex. J (3) at p. 73 and Ex. J (1) at p. 75. Exhibit J (3), reported in Rup Raj Rai v. Parmanand Rai AIR 1934 Pat. 95, was a judgment in appeal of this Court dated 16th August 1933 preferred from the dismissal of a suit for partition of Ulatu jagir in the Eanohi district. In that case the record of rights showed that Tikait Parmanand Rai and Rup Rai, sons of Tikait Bagh Rai, were entered in equal shares with an entry in the khewat that when Rup Raj Rai, the younger brother, would separate he would receive khorposh, and the learned Judge observed that the importance of this entry was that:

The custom of the tenancy is the usual one in Ranchi of primogeniture with khorposh to the younger brother or brothers.

The learned Judge then dealing with the facts of that case pointed out that the numerous entries in the khewat of Ulatu showed that all the tenancies of members of the family except the jagir set out in Khewat No. 2 were khorposh under the jagir and that only the holder of jagir khewat paid rent to the proprietor, the Maharaja of Chota Nagpur, and further observed:

The quotations from the various authorities which have been cited by the learned Subordinate Judge and to which may be added the Ranchi District Gazetteer which is to the like intent, also leave no room for question that the lex loci in the Ranchi District is one of primogeniture not only in the family and offshoots of the Maharaja of Chota Nagpur himself, but also in all the jagirs of the distriot. They are putrapoutradi; even the appellant is constrained to admit that the tenure in suit ia so. In the Chota Nagpur Estate, It is beyond all question that a putrapoutradi tenancy is impartible, is governed by the rule of lineal primogeniture and continues so long as there exists any lineal male descendants of the grantee or grantees, with khorposh to the widow of the last surviving mala holder.

It is clear therefore that the learned Judge decided the case upon the evidence which was adduced in that case including the entry in the khewat of the record of rights and took assistance from the quotation in the District Gazetteer of Ranchi. It may be observed that the question did not relate to the construction or the consideration of the tenures, of a jagir granted to more than one person but concerned the determination of the nature of (after taking in aid the entry in the khewat) a jagir which had been granted to the ancestors of Parmanand Rai and Rup Raj Rai who had succeeded on the death of their father. Exhibit J (1) at page 75 is a judgment giving permission to the guardian of the minors to enter into a compromise in a suit which was for a declaration that the plaintiff was the sole successor in interest to an estate obtained by Dhiripnath as khorposh grant from his elder brother Harnath Sahi Deo.

In the course of discussing the evidence in the case Macpherson J., had to consider the entry in khewat No. 3 which recorded the names of all the three branches of the descendants of Indranath and pointed out at the top of p. 77 that the record of rights of the Ranchi District records together under a single entry both the holder by primogeniture and the male members of his household who have not yet received the khorposh grant out of the tenure which is their only right, and does so without any implication that they are shareholders.

Sir Sultan Ahmad relied upon the last quoted passage very strongly. But I cannot look upon this observation as of any assistance in deciding the terms of the grant in the present case. In that case, which Macpherson J. was considering, the question was not a construction of any grant but as to the meaning of a particular entry in a khewat which recorded the possession of the members of the family on whom the jagir had descended, the members of the family being governed by the rule of primogeniture. The learned Judge at p. 77 did not express approval of the decision of another Division Bench of this Court reported in Govindnath v. Mahesar Nath AIR 1928 Pat. 244, a decision in a suit relating to Lat Kairo of which the estate of the parties in Ex. J (1) was an offshoot. After considering the entire evidence, it was held by Wort J., who delivered the leading judgment, in Govindnath v. Mahesar Nath AIR 1928 Pat. 244 that the rule of primogeniture was, not recognized by the family which was admittedly a joint Hindu family governed by the Mitakshara School of Hindu law and that although the plaintiffs were entered as kborposhdars in the record of rights they were in fact entitled to a division of the property as joint owners with the other members of the family. Macpherson J. sought to distinguish this decision on the ground that

the suit was a money suit. The claim was only for about one-seventh of the surplus and there is some reason to suspect that the defendants did not contest whole-heartedly. No oral evidence was adduced. The suit was actually decided upon a construction of a compromise decree of 1867 in partition suit.

With great respect to the learned Judge I do not agree with these observations. The plaintiffs had claimed to be entitled to the proportionate share of the amount of sale proceeds of the property which was deposited in the Government treasury and they could only succeed if they were able to establish that they had an interest in the property as joint owners. This question therefore was directly in issue and the suit could not be correctly called a money suit only. Be that what it may, Macpherson J. in considering whether he should accord permission to the guardian of the minors to enter into the compromise did not decide the question of law which arises for consideration in the present case.

Great reliance was also placed by Sir Sultan Ahmad upon the observations of Atkinson J. in the case referred to several times above, namely Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337. The observations are at the bottom of page 117:

I think the custom alleged in this case prevails In all estates granted by the Maharaja of Chota Nagpur; and every authority I have been able to refer to recognize this custom not only as a family custom prevailing in the Maharaja''s family but also as the lex loci custom of Chota Nagpur.

Chapman J. who was a party to this decision gave a separate judgment and observed at p. 128:

I have scrupulously avoided deciding any question the decision of which did not appear to be absolutely necessary upon a proper interpretation of the pleadings.... It is in my view, important to avoid so far as possible making judicial pronouncements which are not absolutely necessary for the determination of a case as set out by the pleadings of the parties, more especially as such pronouncements tend in any event to precipitate and to fossilize legal conceptions which, in the case of Chota Nagpur at any rate, are probably transitional (sic) and temporary.

The pleadings of the parties and the evidence in the case enabled Chapman J. to come to a decision without holding that the custom of primogeniture was the lex loci custom of Chota Nagpur. The observations of Atkinson J. therefore must be treated as obiter and not at all necessary for the decision of that case. In July of the same year Atkinson J. had to consider a similar question in Ram Charan v. Harihar Mahto reported in AIR 1916 Pat. 363 decided by him sitting with Jwala Prasad J. on 6th July 1916 (EX. j (2) at page 51). His-attention was drawn to his remarks in Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337 and he observed at page 52 that Chapman J. and he, in that case

were both satisfied beyond all doubt, that on the Maharaja''s estates and in his family the custom of impartibility and primogeniture was established in all cases. I went a little further and held that it was the lex loci of the province; I may have been right or I may have been wrong.

The second appeal was concluded upon the findings arrived at by Kingsford J. on remand that:

Upon the evidence on the record I am satisfied that the custom of primogeniture prevails in the family to which the parties belong, and accordingly I allow the appeal.

It may be noticed that the case in Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337 dealt with the case of a jagir granted to Kaharag Rai, the common ancestor of the parties, and who was a relation of the Maharaja of Chota Nagpur (see p. 112). It seems to me therefore that these remarks of Atkinson J. in Gajendra Nath Sahi v. Mathurlal Nath Sahi Deo AIR 1916 Pat. 337 were entirely obiter. Our attention was also drawn to the observation of Macpherson J. in Krittibash Mahton v. Budhan Mahtani AIR 1925 Pat. 733. As Dawson. Miller C. J. remarked at p. 605 the only question raised in this appeal was

whether the learned Judge was right in holding that the parties in this case were governed by the Dayabhaga School of Hindu law.

The Courts below had concurrently found that the parties were governed by the Dayabhaga School of Hindu law and the learned Chief Justice pointed out that:

There was an admission by the learned vakil who appeared on behalf of the defendants that if the parties were Hindus it was unnecessary to go into the question whether the Dayabhaga or the Mitakshara School of Hindu law applied.

Macpherson J. agreed that as the result, of the astonishing admissions made at the Bar the second appeal should be dismissed but proceeded to supplement the judgment which was delivered by the learned Chief Justice and pointed out that his considered view was that

the Dayabhaga system is not a lex loci in Manbhum in the matter of inheritance, and that certainly neither that system nor any other system of Hindu law can be applied to the indigenous aboriginal tribes of the Manbhum district or members of those tribes, except on proof that they have adopted it.

(The parties in that case were Kurmi Mahtos of the Manbhum District). I do not see how these observations which are expressly obiter are of any help in this case. Indeed at p. 610, Maopherson J. states:

In cases relating to inheritance among aboriginals in Manbhum it is always necessary to enquire whether even if Hinduized (slightly, partially, or completely) they have abandoned the tribal custom as to inheritance (usually they have not, even where, as is unusual, Hinduization is complete) and then if they have abandoned the tribal custom what particular School of Hindu law they have adhered to. Both points of enquiry are in Manbhum questions of fact to be determined on the evidence.

A review of the cases considered above satisfies me that the remarks in those decisions are of no help whatsoever in deciding as to the effect and construction of the grant of October 1906; those cases only lay down that on the facts of each particular case it must be decided by the Courts of fact whether the parties, who belong to the aboriginal tribe in the District of Ranchi or Manbhum are governed by their own custom (to be proved) or by the Hindu law, that is to say in each case the Court of fact must find out whether the rule of primogeniture or the rule of agnatic succession or the rule, of Hindu law applies. This brings me to the second important question which was argued before us whether the parties in the present case are governed by the rule of primogeniture. As observed already I am unable to assume that simply because the parties live in the Ranchi District and have obtained this jagir from the Maharaja of Chota Nagpur they must be assumed to be governed by the rule of primogeniture. Even in para. 253 of Mr. Reid''s report which was strongly relied upon by the learned advocate for the respondents it is stated with regard to the custom of primo-geniture that

nearly all the subordinate tenure-holders, who are not of the same family have adopted the same custom of succession to the exclusion of the ordinary Hindu law of inheritance. Its prevalence is so marked that even members of the lower castes, who become land-owners, such as the Bautias and Kurmis, usually adopt it.

The underlining (here italicized) is mine. I thinkit was correctly argued by Mr. S.M. Mullick appearing for the appellants that it must be shown upon the evidence that a particular family have adopted the custom of primogeniture where, as in the present case, the parties are not of the same family as the Maharaja of Chota Nagpur. (After considering certain documentary and oral evidence his Lordship concluded as follows.) The evidence is not at all sufficient; to help the Court in arriving at a decision; but the evidence such as it is tends to support the plaintiff''s case that the family of the Ohdars is not govefned by the rule of primogeniture.

In the result I find that the defendants have failed to satisfy the tests laid down by the Judicial Committee in Martand Rao v. Malhar Rao AIR 1928 P.C. 10. The custom has not been proved to be ancient and invariable (it was negatived by the Court in 1866 and in 1928), it has not been established at all, far less by any dear and unambiguous evidence. Upon a careful consideration of the entire, oral and documentary evidence I must hold (1) that the plaintiffs and defendant 2 are the joint owners of village Buti granted to them in jagir in October 1906 by the Maharaja of Chota Nagpur and (2) that plaintiffs 3 and 4 are the owners of 5 annas and 4 pies each and plaintiffs 1 and 2 along with Bhuneswar are the owners of the remaining 5 annas and 4 pies so that the mortgage bond executed by Bhuneswar was valid only to the extent of his interest in the village, namely 1 anna 9 1/3 pies.

Sir Sultan Ahmad argued in the alternative that the plaintiffs are bound by the mortgage decree because the mortgage was executed by Bhuneswar in favour of defendant 1 to pay off debts which were all antecedent debts and incurred for the benefit of the estate and that in the circumstances it must be held that the plaintiffs were fully represented by Bhuneswar, both in the mortgage of 1927 and in the mortgage suit brought thereon. Mr. S.M. Mullick argued on the other hand that as the mortgage deed recites that the mortgagor was the absolute owner with full power of alienation of the property which was being given in security, it must be held that the mortgagor was not entering into the transaction as manager of the joint family or as representing the other members and that the respondents cannot be allowed to raise this alternative plea.

Before considering the validity of the contention raised by either party the facts under which the mortgage bond of 1927 was executed must be reviewed. The mortgage bond is at p. 55 of Part 8 of the paper, book. It recites that Bhuneswar who is the owner in possession of his ancestral jagir land in village Buti, in order to pay off Rs. 2000 due to the Maharaja of Kassim-bazar, zarpeshgidar, and Hs. 1000 due to Antu Ram Marwari, has taken Rs. 3000 from defendant 1 on the security of village Buti. There is no recital in the mortgage from which it can be inferred that Bhuneswar was entering into the transaction as the manager of any joint Hindu family. Indeed Sir Sultan Ahmad in the earlier stage of the argument has vehemently protested that the Ohdars are not Hindus and this I have accepted as correct. It seems to me that in these circumstances it is not open to him to rely upon the doctrine of representation by the head member of a joint Hindu family. The recitals in the mortgage bond do not assist him in the least. There is no evidence in the case that Rs. 1000 which was due to Antu Ram Marwari was raised by Bhuneswar as the head of the family. Rupees 2000 due to the Maharaja of Kazzimbazar was taken from him by Surajnath, the father of Bhuneswar, by a zarpeshgi patta (EX. D (3) at p. 22) already referred to. Bhuneswar, therefore, executed the mortgage bond in order to pay the debt which was due from his deceased father. The liability incurred by a son to meet his father''s debt would not be binding upon the other sons, who did not join in the mortgage, nor admittedly on the uncles of Bhuneswar. Again, the other brothers of Bhuneswar and the uncles of Bhuneswar were not made parties to the mortgage action nor was it asserted therein that Bhuneswar was being sued as representing them.

When I have already accepted the contention of Sir Sultan Ahmad that the parties are not Hindus, and secondly, because upon the facts found the mortgage bond was professedly executed by Bhuneswar in his own right in order to pay off his own debts and the debt of his own father, the respondents cannot be allowed to raise the question of representation before us. The case decided by their Lordships of the Judicial Committee in Balwant Singh v. Rev. Rockwell Clancy (12) 34 All. 296 is an authority for the proposition that as the mortgage bond was not executed by Bhuneswar as the manager of the family or as representing the other members of the family it is of no effect to affect the interest of the members who were not parties thereto. In Nandan Prasad v. Abdul Aziz AIR 1923 All. 581 the facts were that a Hindu who died leaving three sons had left a will by which he proposed to bequeath the joint ancestral property to his widow; the widow mortgaged the property not as guardian of her infant sons but as full owner, although the amount raised was employed for the benefit of her sons. In a suit instituted by the mortgagees to enforce the mortgage to which the sons were made parties it was held that the sons could not in any way be affected by the mortgage executed by the mother.

I am therefore of opinion that even if the question is open to the learned Counsel for the defendants it must be held that the plaintiffs are not bound by the mortgage which was executed by Bhuneswar alone, nor by the mortgage decree to which they were no parties. It may also be stated that the question of the binding character of the loan taken by Bhuneswar on the plaintiffs was not distinctly raised in the Court below.

For these reasons the appeal is allowed and the plaintiffs will be granted a declaration that they have title to 14 annas 2 2/3rd pies share in village Buti, thana No. 182, P.S., District Ranchi and that the sale in execution case No. 3 of 1934 in execution of the decree obtained in mortgage suit No. 19 of 1932 has not affected the plaintiffs'' title; the plaintiffs are ordered to be put in possession of their 14 annas 2 2/3rd pies share in the said village after partition. The plaintiffs are also entitled to a decree for mesne profits for the period during which they have been out of possession on their being dispossessed by the auction purchaser on or about 12th July 1935 but the amount of the mesne profits will be determined in the execution department in a separate appropriate proceeding. The appellants are entitled to their costs throughout.

Harpies C. J.

I agree.