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Judgment
Wort, J.—On 17th June 1918, the tenure known as Kairo Lot was sold in an execution sale for Rs. 3,15,000 the tenure having got into arrears for rent. After payment of the decretal amount due to the landlord there remained a surplus of Rs. 2,43,000 now in the hands of the Deputy Commissioner of Ranchi The plaintiffs in this suit claim to be entitled in the sale proceeds of the tenure to a proportionate sum of this surplus amounting, as they allege, to Rs. 37,771-9-7, but in their plaint they limit their claim to Rs. 25,000 being unable, as they state, to pay the excess Court fees.
It will be necessary to state the history of this tenure for the purpose of showing the manner in which the plaintiffs'' claim arises. It would appear that some centuries ago the then Maharaja of Chota Nagpur granted this tenure known as Kairo Lot to the common ancestors of the parties and the name of one only of the members of the family, being the eldest, was entered in the sarishta of the Maharaja who looked to the member of the family who was styled a Thakur for the rent and cesses.
I will first deal with the office Thakur.
The first person mentioned in the genealogical table is Thakur Harnath Sahi. After his death it was held by Gagannath Sahi; he relinquished it in favour of his nephew Udainath. Upon his death Kapilnath, his son, held the office. Kapilnath was the holder of the office at the time of certain partition proceedings in 1866 the records of which form part of the evidence in this case. After his death Radhanath, his son, held the office and after Radhanath it descended through his eldest son to Madan Mohan who was the Thakur at the time of the rent proceedings referred to, and in this suit he is represented by his widow Nirmal Kuer who is defendant 3 and Gobind Nath, his uncle, who is defendant 1 and another uncle, Hiranath, who is defendant 2, who claim the entire surplus of his sale.
As regards plaintiffs'' share it descended through Bisnath Sahi, the youngest son of Harnath Sahi before mentioned. On the death of Bisnath Sahi the whole tenure was enjoyed in the manner I have already indicated by his three sons, Thakur Udainath, Raghubarnath and Lokenath. On their death their sons were in joint possession being Kapilnath, Samsundar Nath and Sirinath. Disputes arose which gave rise to the proceedings before mentioned of 1866. Sirinath brought a suit against Kapilnath; his cousin Samsundar Nath also
brought a suit against Kapilnath Sahi. All the three brothers joined in these suits. These suits were compromised as a result of which Sirinath Sahi, the grandfather of the plaintiffs got eight villages as his share being the eight villages that are mentioned in the plaint On the death of Sirinath his two sons Jagatnath and Harak Nath went into possession. Jagatnath is the father of plaintiffs 1 and 2. Haraknath is represented in this case by Taluk Raj Kuer, being the widow of Haraknath who is plaintiff 3.
It is in respect of these villages that the plaintiffs claim a proportionate amount of the surplus proceeds. There was a further partition suit being Suit No. 203 of 1907 between the sons of Jagatnath, defendant being Haraknath. As result plaintiff 1 in this suit being the elder branch of the family descended from Lokenath, obtained 10 annas share, and Haraknath being the younger branch obtained 6 annas share. One of the defendants to this suit being Shibnath died without issue in a state of jointness with his two brothers and so by a reversion plaintiffs 1 and 2 got the 10 annas share and the cousin Haraknath dying issueless his widow being plaintiff 3 in this suit obtained the 6 annas share.
The case of the plaintiffs in this suit is that they being entitled to an interest in the tenure in relation to which the defendants were entered in the landlord''s sarishta, they are also entitled to the proportionate amount of the proceeds of sale now deposited in the Government Treasury. The defendants'' case is that the rule of primogeniture applied in this family. Madan Mohan alone was entitled to the property at the time of the sale and, therefore, the defendants who were reversioners are entitled now to the exclusion of all other parties. The interest of the defendants'' ancestors was that of Khorposhdars and that interest being for maintenance only no right to the surplus proceeds or any portion thereof accrues to them.
Further, that as the Thakur alone was entered in the sarishta am as he (in the rent proceedings Madan Mohan) was the judgment-debtor the right, title and interest of the judgment-debtor alone passed and that the plaintiffs'' right, title and interest, if any, did not pass and their proper remedy, if any, is against the auction purchaser. There is a further argument that under the Chota Nagpur Tenancy Act the judgment-debtor alone is entitled to the proceeds of sale and the plaintiffs if they had any right against Madan Mohan have a claim in damages for allowing the tenure to fall in arrears of rent. It is well to notice here that as a result of the auction sale the plaintiffs have been entirely dispossessed of their portion of the property. A part of the defendants'' case was that under the custom that ruled in this family the Thakur alone was liable for rent and that the rent relating to these eight villages granted to the ancestors of the plaintiffs for maintenance was paid by the Khorposhdars to the Thakur who paid the rent to the Maharaja. No oral evidence was adduced in the case. The plaintiffs relied upon the records of the partition proceedings to which I have referred.
The defendants relied upon the finally published record-of-rights and some proceedings in 1910 before the Settlement Officer in which he refused to make any alteration in the entries in the record-of-rights. The plaintiffs'' case is that these partition proceedings show that the family, which is admittedly a joint Hindu family governed by the Mitakshara school of law, had no custom of primogeniture as alleged by the defendants. The defendants on the other hand state that the finally published record-of-rights records the defendants'' predecessors as khorposhdars and that record cannot now be questioned.
Now, as regards the evidence of the plaintiffs, there are one or two matters which should be noticed. It would appear that the first question that has to be determined in this case is what rights passed under the sale; the second question is what were the rights of the plaintiffs, and the third which arises from the second is whether, having regard to the records-of-rights the plaintiffs can be heard to say that they were not khorposhdars but had joint interest in the property with the defendants. There is no doubt the whole of the tenure was put up for sale and was sold. It would therefore, clearly appear that the whole tenure passed to the auction purchaser and all rights in the tenure with it. As regards the rights of the plaintiffs: their case is, as I have indicated that they may have been entered in the record of rights as Khorposhdar but they in fact were jointly interested in the property and entitled to the shares under the ordinary rule of Hindu law governing a joint Hindu family. The learned advocate for the respondents argues that if the defendants wish to rely on the rule of primogeniture it is necessary to show that the custom was invariable and that the partition proceedings in any event is in effect a variation. The defendants, therefore, fail to prove the rule upon which they rely.
I ought to state here that the plaintiffs also argue that even if they are khorposhdars, the whole tenure having been sold, the defendants are in the position of trustees of that proportion of the surplus fund which the plaintiffs claim. This they allege, in para. 23 of the plaint. Now as to the partition proceedings it will be noticed that as regards the proceedings of 1866 all the parties in this suit at present before us were represented by their predecessors-in-title and consequently whatever effect those proceedings may have, the present parties are bound thereby.
The defendants argue that, although the proceedings appear to have divided the properties in a manner in which such property would be divided amongst the members of a joint Mitakshara Hindu family, yet they amounted to nothing more than a family arrangement and do not as is suggested, have the effect of giving the plaintiffs a legal right to any defined share. The defendants in their argument state as is the fact, that the Thakur only was liable for the rent and point to this incident as showing that the plaintiffs'' predecessors-in-title were merely what they were stated to be, that is to say, the khorposhdars. But when we look at the compromise petition of the 2nd February 1867 (Ex. 5a) we notice that the parties not only divided the properties amongst themselves but also agreed to pay the proportionate amount of the rents due to the Mahajans and also to bear the proportionate amount of the rent in the proportions therein set out. The final decree which was passed on this compromise petition recites these provisions. There can be no doubt that the properties were divided as a joint Hindu family would have divided them if they had been governed by the ordinary rules of Hindu law which the plaintiffs allege applies in this family. There is nothing in the proceedings to suggest that the result was merely a family arrangement excepting an allegation in the written statements of the defendants in the proceedings which is to the effect that the then plaintiffs were entitled to maintenance only. I think it is clearly established that at that time, at any rate, the rule of primogeniture was not recognized by the family. As I have already stated the plaintiffs also adduced in evidence being the record of the partition proceedings of 1910. It is clear that the descendants of Kapilnath who was the defendant in the two suits of 1866 would not be bound by the decree of the suit of 1910 as the parties to the later suit were the members of the younger branch only of the family of Bisnath Sahi. But it is alleged this will show not only with regard to the tenure as a whole but as regards the properties which were enjoyed by the ancestors of the plaintiffs this alleged rule of primogeniture was never recognized.
This matter becomes relevant by reason of the allegation in para. 12 of the written statement in which the defendants allege that the rule applied not only to the tenures as a whole but that portion of the property which belonged to the younger branch which I have mentioned. In the partition proceedings of 1910 the property was divided amongst the parties on the basis of its being a joint Hindu family. I think this disposes of the allegation in para. 23 of the written statement. I would, therefore, hold that, so far as the proceedings in the partition suit are concerned the plaintiffs have established that although they were entered as khorposhdars in the record-of-rights, they were in fact entitled to the division of the property as joint owners with the other members of the family and did so divide it.
It remains to be determined whether the record-of-rights prevents this Court from recognizing the right which I have held the plaintiffs establish. The argument of the defendants is substantially this: first, the record of rights describes the plaintiffs'' predecessors-in-title as khorposhdars and that the Court cannot go behind that record and for the following reasons: In 1910 the parties sought to have the record altered. The Settlement Officer of Chota Nagpur stated in the commencement of his judgment that although the proceedings had been referred back to him by the Commissioner for taking further evidence and hearing the parties their proper course in his judgment would have been to have commenced a suit u/s 87 as any decision which he (the Settlement Officer) came to, would be liable to be upset by a revenue officer''s decision u/s 87.
From his judgment it would appear that he took into consideration the partition suits to which I have referred, but he bases his decision in coming to a conclusion that he would not alter the entries as made in the finally published record-of-rights, upon certain rent proceedings from which it appears the junior members of the family failed to pay their rent to the Thakur and they were sued in the revenue Courts of the district; whereas, if they had been cosharers they ought to have been sued for their contribution to the rent for which the Thakur was liable in the civil Court. In my opinion these rent proceedings by no means dispose of the effect of the partition suits of 1866. Their answer appears to be that as between the Thakur and the grantor of the tenure the Thakur alone was liable and he was by no means bound to recognize any rights which the younger branch of the family had in respect of the tenure. That was a matter between the Thakur and the younger branches of the family alone and it in no way concerns the Maharaja. Bat the main argument upon this decision of the Settlement Officer is based upon Section 258, Chota Nagpur Tenancy Act. That section is to the effect that no suit shall be entertained to vary, modify or set aside either directly or indirectly any decision, order or decree of any Deputy Commissioner or revenue officer in any suit, application or proceeding under certain sections therein named.
Amongst these sections Section 89 appears to be the proceeding under which the application of 1910 was made. Section 258, by a clause which was added to the section by the Amending Act of 1920, provides:
and every each decision, order or decree shall have the force and effect of a decree of a civil Court in a suit between the parties and, subject to the provisions of this Act relating to appeal shall be final.
The argument of the learned advocate for the defendants is that by the reason of this section the plaintiffs are not entitled to show that they were jointly entitled to this property. The argument amounts to this: that as the Settlement Officer did not alter the entries in the record in which they are recorded as khorposhdars that decision of his is final and that it has the effect of a civil Court decree and that the plaintiffs, in putting forward this claim, seek to indirectly modify or set aside the decision of the Settlement Officer.
We have first to see, therefore, what the Settlement Officer decided. He decided that the records should remain unaltered. The question would appear, therefore, to be: Are the plaintiffs seeking to alter that decision? It is obvious they are not: the decision remains as also does the record-of-rights entry: it remains as evidence of the facts therein stated, but as a piece of evidence which may be rebutted.
It is clear, therefore, that the plaintiffs in this action are not seeking directly or indirectly to vary the decision of 1910. The words "directly or indirectly" in the section, in my judgment, apply to the machinery used for the purpose of altering the decision and not to the result, that is to say, assuming for the moment that the plaintiffs succeed in this suit, they will have a declaration which in its effect contradicts the record but that does not directly or indirectly alter the decision of 1910 No proceedings can be brought other than those allowed by the Act to change that decision directly or indirectly. But the record remains there and in my judgment they have not directly or indirectly altered it. But the argument of the appellant goes deeper than this. In effect he says that the result of this section is that there having been a proceeding u/s 89 the question of the status of the plaintiffs is res judicata. And in support of this they point to the words "shall have the force and effect of a decree of the civil Court." A decree of the civil Court stands unchallenged unless by appeal or otherwise it is get aside. But a decree does not go beyond the limits to which it is confined by the question which is in dispute and is thereby decided and by the words in which that matter is decided.
u/s 89, the Settlement Officer has ordered that the record shall remain unaltered. He might have ordered in other circumstances that it shall be altered in the manner in which he directed it. Now, according to the section, that order has the characteristics of a civil Court decree, but it by no means states that a civil Court having jurisdiction shall not entertain a suit between the parties which may question by inference the correctness of the record. In other words the decision of the Settlement Officer u/s 89 has the effect of a civil Court decree within the scope of the Settlement Officer''s jurisdiction. We have in this case an illustration of the absurd effect which might result from holding otherwise. A civil Court of competent jurisdiction (it is true as a result of the compromise that does not affect the matter) has decided in effect that this is a joint Hindu property and shall be ''partitioned accordingly. I, of course refer to the partition suits of 1866. It is to be said that by reason of decision of the Settlement Officer that he will not alter the record and by reason of Section 258 the effect of the decree before mentioned is null and void and that the property is still joint. In my judgment, as I have indicated, that would be reducing the interpretation of the section to an absurdity. I am supported in this view by the decision of this Court in Maharaja Pratap Udainath Sahi Deo Vs. Ganesh Narain Sahi and Others, , which in words not dissimilar to those which I have used in this judgment has come to the same conclusion.
I, therefore, hold that the argument addressed to us under the section fails and the plaintiffs are not precluded from proving that they were a joint Hindu family governed by the Mitakshara school of law and that the property was joint. The point may be stated in another way. The defendants here desire to set up the rule of primogeniture as a bar to the plaintiffs'' claim. The plaintiffs state that no such rule existed in this family. Can it be stated that the Settlement Officer decided this question so that no civil Court can thereafter enter upon the determination of the matter? I am clearly of the opinion that this could not be successfully contended. The plaintiffs further allowed that the words, which I have noticed were added to Section 258 by the amending act of 1920, are not retrospective and do not apply to this decision. In my judgment this argument cannot be sustained, but it is unnecessary to say more on this point by reason of my decision on the main argument. I have already decided that the proceedings and decrees in the partition suit prove that fact and it, therefore, follows that, subject to the question of amount, plaintiffs were entitled to succeed in the suit.
The only question remains is that relating to the proportion of the proceeds to which they are entitled. There was no direct evidence on this matter, but the learned Subordinate Judge has worked out the figures in the latter part of his order. He has taken the annual value of the whole tenure as Rs. 30,237; the annual value of the plaintiffs'' villages being Rs. 4,700 this would be approximately one-seventh. The total surplus is Rs. 2,43,000, one-seventh of which will give approximately the figure of Rs. 37,000 which the plaintiffs claim. The appellant, however, argues that this total value of Rs. 30,000 odd is an over estimate and points to the road cess valuations (Exs. 9, 9-A and 9-B). Taking the totals from these exhibits there is approximately Rs. 45,831 and Mahal Utka being the villages which the plaintiffs got in the partition. It gives the total of Rs. 4,864. This would give the proportion of rather more than one-ninth. This would result in at least Rs. 25,000 being the proportion of the plaintiffs. It would appear, therefore, that they are well within the limits of their proper claim. The defendant in the suit does not seriously contest this question and calls no evidence regarding it.
I would, therefore, hold that the plaintiffs are entitled to a proportion of the surplus proceeds which was allowed by the trial Court and I would, therefore, dismiss the appeal with costs.
Ross, J.
I entirely agree.