# [1959] 1 S.C.R. 1309

- **Citation:** [1959] 1 S.C.R. 1309
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Venkatarama Aiy.Ar, G.Ajendragadk.Ar, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1959-1-s-c-r-1309-1549
- **Pages:** 15

## Headnote

Grant-Construction-Patni
settlement-Chaukidari
Chakaran
lands-Resumption and transfer to Zamindar-Grant of the lands by
the Zaminditr on Patni to person who held the village in Patni settle-
~
ment-Distinct Patni-Sale of lands for arrears of revenue-V.ali-
. dity-Bmgal Patni Taluks Regulation, I8I9 (Ben. Regulation
VIII. of I8I9), ss. 8, I4-Village Chaukidari Act, I870 (Ben. VI
of I870~, SS. 48, 50, 5I.
The lands in question are situate in lot Ahiyapur which is
one of the viJlages forming part of the permaneptly settled
estate of Burdwan and had been set apart as Chaukidari
Chakar~n lands to be held by the Chaukidars for rendering
service in the village as watchmen. At the time of the permanent settlement the income fro1n these lands was not taken into
account in fixing the jama payable on the estate. Some time
before the enactment of the Bengal Patni Taluks ~egulation,,
1819, the e~tire village of Ahiyapur was _granted by the then
•
September L8.
•
•
•
•
1310
~UPREME COURT REPORTS
[1959]
z958
Zamindar of Burdwan, to the
predecessor~in-title of
the
defendants on l'alni settlement. In 1870 the \"1llage Chaukidari
R•dha S11ndar
Act came into force and actVig tfncler the prO\·isions of that Act
Dutta
the Government put an en<l to the services of the Chaukidars,
v.
resum!'d the lands an<l imposed an assessment thereon, and,
Mohd. jahadur subject lo it. transferred the lands to the Zamindar. On
Rahim
June 3t 1899, the Zamin<lar granted the suit lands on l'al11i0 to the
predecessors-in-title of the defendants \vho \••ere the then holders
of the village in Palni. In proceedings taken by the Zamindar
under the provisions of the Bengal Palni Taluks l~egulation,
1819, the suit lands were brought to sale for arrears of rent and
purchased by him.
On February 13, 1941, the Zamindar sold
the lands to the appellant who sued to recover possession thereof
from the defendants. The dcienclants resisted the suit on the
ground; inter alia, that the effect of the grant of the Chaukidari
Chakaran lands on June 3, 1899, was to make them part and
parcel of the Patni settlement of the village of Ahiyapur and
that, in consequence, the sale of those lands, apart from t.Pe
village of Ahiyapur, was bad as being a sale of a portion of the
Patni.
•
•
H cld, that when the Zamindar made a grant of the
Chaukidari Chakaran lands which formed part of a village
which had previously been settled in Patni, it was open to the
parties to agree that those lancls should form a 1iew and distinct
Patni and the result of such an agreement would be that while t5e
grantee would hold those lancls in Patni right, that is to say, that
the tenure would be permanent, heritable ancl alienable, so far
as his liability to pay jama a11cl the corresponding right of the
Zamindar lo sell it under the l~egulation if there was a default
in the payment thereof were concerned, the new grant would be
a distinct l'auii, ifldependenl of the original l'at11i.
Held, further, that construing the grant dated June 3, 1899,
as a \\·hole, the intention of the parties as expressed therein was
that the Chaukidari Chakaran lands were to be treated as a
distinct l'al"i and that, therefore, the sale of the lands for
arrears of rent \vas vali<l.
~IYIL APPELl,ATE .JURISDICTION: Civil Appeal N"o.
108 of 1954.
Appeal from the
judgment and
decree dated
:\larch 21, 1952, of the Calcutta High Court in Appeal
from A ppcllat~ Decree No. 971 of 1950, nrising out of
the judgment and decree dated August 29, 1950,.of the
Court of District Judge of Zillah Burdwan in Title
Appeal No. 247/16 of 1948 against judgment and
decree dated September 25, 1948, of the Court of
Additiorral Sub-Judge, 1st Court, Burdwan, in Title
•Suit No. 7 of 194~/27 of 1947.
•
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..
..
•
..
•
S.C.R.
SUPREME COURT REPORT~
1311
N. G. Gha,.erjee and Sukumar
Ghose, ·. for the
appellant.
•
•
J. N. Banerjee and P. K. Ghose, for the respondents.
1958 .. September 18. The Judgment of the Court
was delivered by
•
VENKATARAMA AIYAR J.-This is an appea

## Text

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S.C.R.
SUPREME COURT REPORTS
1309
..
suits against :e Central Board in respect of their acts
r9ss
as well as to suits for any.relief in respect of any 5 .. ,-H Kh
.
.
.
l
ira;u~
aq
an
.waqf. It 1s not demed that 'the present smt wou d
& Others
attract the provisions of s. 53 if the argument that
v.
the Darga and the offerings are not notified is rejected. The Sunni Central
The rnsult is that the suit is not maintainabl~ as a
Board 01 Waqf,
result of the appellant's failure to comply with the u. P. & Others
requirements of s. 53.
We would accordingly con- Gajendragadkar J.
firm the finding of the High Court that the appellaints'
suit is barred by time under s. 5(2) and is also not
maintainable in view of the fact that the appellants
have not given the requisite notice under s. 53 of
the Act.
The result is that the appeal fails and is dismissed
w,i.th costs.
·
Appeal dismissed ..
•
RADHA SUNDAR DUTTA
v . •
MOHD. JAHADUR RAHIM AND OTHERS
(VENKATARAMA AIY.AR, G.AJENDRAGADK.AR
and A. K. SARKAR JJ.)
Grant-Construction-Patni
settlement-Chaukidari
Chakaran
lands-Resumption and transfer to Zamindar-Grant of the lands by
the Zaminditr on Patni to person who held the village in Patni settle-
~
ment-Distinct Patni-Sale of lands for arrears of revenue-V.ali-
. dity-Bmgal Patni Taluks Regulation, I8I9 (Ben. Regulation
VIII. of I8I9), ss. 8, I4-Village Chaukidari Act, I870 (Ben. VI
of I870~, SS. 48, 50, 5I.
The lands in question are situate in lot Ahiyapur which is
one of the viJlages forming part of the permaneptly settled
estate of Burdwan and had been set apart as Chaukidari
Chakar~n lands to be held by the Chaukidars for rendering
service in the village as watchmen. At the time of the permanent settlement the income fro1n these lands was not taken into
account in fixing the jama payable on the estate. Some time
before the enactment of the Bengal Patni Taluks ~egulation,,
1819, the e~tire village of Ahiyapur was _granted by the then
•
September L8.
•
•
•
•
1310
~UPREME COURT REPORTS
[1959]
z958
Zamindar of Burdwan, to the
predecessor~in-title of
the
defendants on l'alni settlement. In 1870 the \"1llage Chaukidari
R•dha S11ndar
Act came into force and actVig tfncler the prO\·isions of that Act
Dutta
the Government put an en<l to the services of the Chaukidars,
v.
resum!'d the lands an<l imposed an assessment thereon, and,
Mohd. jahadur subject lo it. transferred the lands to the Zamindar. On
Rahim
June 3t 1899, the Zamin<lar granted the suit lands on l'al11i0 to the
predecessors-in-title of the defendants \vho \••ere the then holders
of the village in Palni. In proceedings taken by the Zamindar
under the provisions of the Bengal Palni Taluks l~egulation,
1819, the suit lands were brought to sale for arrears of rent and
purchased by him.
On February 13, 1941, the Zamindar sold
the lands to the appellant who sued to recover possession thereof
from the defendants. The dcienclants resisted the suit on the
ground; inter alia, that the effect of the grant of the Chaukidari
Chakaran lands on June 3, 1899, was to make them part and
parcel of the Patni settlement of the village of Ahiyapur and
that, in consequence, the sale of those lands, apart from t.Pe
village of Ahiyapur, was bad as being a sale of a portion of the
Patni.
•
•
H cld, that when the Zamindar made a grant of the
Chaukidari Chakaran lands which formed part of a village
which had previously been settled in Patni, it was open to the
parties to agree that those lancls should form a 1iew and distinct
Patni and the result of such an agreement would be that while t5e
grantee would hold those lancls in Patni right, that is to say, that
the tenure would be permanent, heritable ancl alienable, so far
as his liability to pay jama a11cl the corresponding right of the
Zamindar lo sell it under the l~egulation if there was a default
in the payment thereof were concerned, the new grant would be
a distinct l'auii, ifldependenl of the original l'at11i.
Held, further, that construing the grant dated June 3, 1899,
as a \\·hole, the intention of the parties as expressed therein was
that the Chaukidari Chakaran lands were to be treated as a
distinct l'al"i and that, therefore, the sale of the lands for
arrears of rent \vas vali<l.
~IYIL APPELl,ATE .JURISDICTION: Civil Appeal N"o.
108 of 1954.
Appeal from the
judgment and
decree dated
:\larch 21, 1952, of the Calcutta High Court in Appeal
from A ppcllat~ Decree No. 971 of 1950, nrising out of
the judgment and decree dated August 29, 1950,.of the
Court of District Judge of Zillah Burdwan in Title
Appeal No. 247/16 of 1948 against judgment and
decree dated September 25, 1948, of the Court of
Additiorral Sub-Judge, 1st Court, Burdwan, in Title
•Suit No. 7 of 194~/27 of 1947.
•
•
. -
..
..
•
..
•
S.C.R.
SUPREME COURT REPORT~
1311
N. G. Gha,.erjee and Sukumar
Ghose, ·. for the
appellant.
•
•
J. N. Banerjee and P. K. Ghose, for the respondents.
1958 .. September 18. The Judgment of the Court
was delivered by
•
VENKATARAMA AIYAR J.-This is an appeal by the
plaintiff against the judgment of the High Court of
Calcutta in a second appeal which, in reversal of the
judgments of the Courts below dismissed his suit,
which was one in ejectment.
The suit property is a Mahal of the extent of 84
Bighas 18 Cottas situated within lot Ahiyapur village,
which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This
village was granted by the Maharaja of Burdwan in
Patni settlement to the predecessors-in-title of defendants 1 to 7. The exact date of this grant does not
appear, but it is stated that it was sometime prior to
tile enactment of the Bengal Patni Taluks Regulation,
1819 (Bengal Regulation VIII of 1819), hereinafter
referred to as the Regulation, and nothing turns on it.
'Ghe Mahal with which thi!! litigation is concerned,
had been at or prior to the permanent settlement set
apart as Ghaukidari Ghakaran lands~ that is.to say,
they were to be held by the Chaukidars for rendering
service in the village as watchmen. In 1870, the
Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was pa.ssed, and s. 48 of
t;hat Act ]Jrovides that all Ghaukidari Ghakaran lands
assigned for the benefit of any village shall be tr~ns
ferred to the zamindar of the estate in the manner and
subject to the provisions contained in the Act. Under
s. 50, the Collector is authorized to make an order
transferring .those lands to the Zamindar after determining the assessment payable thereon, 'and s. 51
enact~ that:
Radha Sundar
Dutta
v.
Mohd. jahadur
Rahim
Venkatarama
Aiyar ].
•
"Such order shall operate to transfer to such
zamindar the land therein mentioned subject to tihe
amount of assessment therein mentioned, and subject,
•
•
•
R0Jht1 S1111dar
J)utla
v.
1\fohd . .Jahaditr
Uahim
Vtnkatllra11Ja
Aiyar j.
•
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1312
1SUPREME COURT REPORTS
(1959)
to all contracts theretofore made, in r~stJect of, under,
or by virtue of, which aQy person other than the
zamindar may have ant right to any land, portion of
his estate, or tenure, in the place in which such land
ma.v be situate. "
in 11ccorda.nce with the provisions aforesaid, the
suit properties were transferred to the lllaharaja. of
Bur<lwan, and on ,June 3, 1899, he granted the same to
the predecessors-in-title of defendants I to 7, who at
that t.ime lwld the Patni interest in respect of lot
Ahiya.pur.
Under the grant which has been marked
as exhibit B, the yearly rental for the area was fixed
at Hs. 126-8 as., out of which Hs. 84-4 as., had to bo
paid to the Panchayat within the 7th of Baisakh for
being credited to the Chaukidari Fund and the balan~o
of Rs. 42-4 as., was to be paid to the Zamindar within
the month of Chaitra. Exhibit B also provides that
in default. of payment of kist the lands a.re liablo to be
sold in proceedings taken under the Bengal Hegula.
tion VIII of 1819.
Acting under thi11 clause, the
Maharaja applied under s. 8 of the Regula.lion to bring
the suit lands to sale for realisation of arrears, and at
the auction held on :'.\fay 15, 1937, himself became the
purchaser. On Fcbrnar}' 13, 1941, he granted t.lte
lands again on Patni to the appellant, who filed t.he
suit, out of. wkich the present appeal arises, in the
Court of the Subordinate .Judge, Burd wan, to recover
possession thereof from the defendants alleging that
they had trespassed thereon. The respondents contcstecl the suit on the ground that, in fa.ct, there were
no arrears of rent dne under l<:xhibit B, and "that the
sal~ was therefore void.
The Subordin11.tc J udgc held that there were arrears
of rent due from the respond(•nts, 1md that further as
they had not sued to set aside the sale under s. 14 of
the i{egulation within the time limited by law, they
could not' set up its invalidity as a clefonce to the
11.ction in ejcctment. The defendants preferr~d an
appeal against this judgment to the District Court of
B11rdwan, .and -there raised a. new contention that
under tire grant, Exhibit B, the suit lands became part
•of lot Ahiyapur, and that a. sale of those ~nds was
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S.C.R.
SUPREME COURT REPORT~
1313
illegal as bein~ a: sale of a portion of the Patni. The
District Judge after obse.rving that the point was
taken for the first time, held on a construction of
Exhibit B that it created a new Patni, and that it
could .therefore be brought to sale, and he also held
that s. 14 of the Regulation operated as a bar to the
validity of the sale being questioned on the ground
that the rent claimed was not, in fact, due.
He
accordingly dismissed the appeal. The respondents
took the matter in second appeal to the High Court,
and that was heard by a Bench consisting of Das
Gupta and Lahiri JJ. who differed from the District
Judge both on the construction of Exhibit B and on
the bar of limitation based on s. 14 of the Regulation.
T.hey held that the effect of Exhibit B was merely to
make the suit lands part and parcel of the Patni lot
Ahiyapur, and that, therefore, the sale of those lands
only was bad, as being a sale of a part of the Patni.
They further held that as such a sale was void, s. 14
of the Regula.tion had no application. They accordingly allowed the appeal, and dismissed the suit. It is
against this judgment that the present appeal has
been brought on a certificate granted by the High
Cburt under Art.133(l)(a).
•
Mr. N. C. Chatterjee for the appellant urged the
following contentions in support of the• appeal: (1)
The defendants did not raise either in the written
statement or during the trial, the plea that under the
sanad, Exhibit B, the Chaukidari Chakaran lands
compriseq therein became part of the Patni settlement of lot Ahiyapur, and, in consequence, their sale
was b11d as being of a part of the Patni, and lhe
learned Judges should not have allowed that point to
be raised in appeal. (2) Exhibit B properly construed
must be hel<l to create a new Patni distinct from lot
Ahiyapur, and its sale is therefore valid. !3) Assuming that the sale is invalid as being of a part of a
tenure, the only right of the defendants was to sue to
have it set aside, as provided in s. 14. of the Regulation, and that not having been done, •it is not open-to
them to attack it collaterally in these proceedings.
•
We see" no subs'tance in the first contention. It is
•
Radha Sundar
Dutta
v.
f\.1 ohd. j a hadur
Rahim
V enkatarama
Aiyar ] .
•
•
Rddha Stfndcn·
D11lla
v.
Mohd. j ahadur
Ralii,,,
V tnkatarama
A1'yar J.
•
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1314
~UPRE~lE COURT REPORTS
[1959]
true that the deft>ndants did not put /orward in the
trial Court the plct~ that.the effect of Exhibit B was
to incorporate the suit lands in lot Ahiyapur Patni,
and that, in consequence, the sale was illegal tis being
of a part of tho Patni. On the other hand, the ivritten
stat~rnent. proceL'<ls on the view that Exhibit B created
a new Patni unconnected with lot Ahiyapur, and tho
only defence raised on that basis was that no arrears
of rent were due under Exhibit B, and that the sale
was therefore invalid.
But the true nature of the
grant under Exhibit B is a matter to be decided on a
construction of the terms of the document, and th:~t
is a question of law. It is argued for the appellant
that it would be propl'r in determining the true
character of the grant under Exhibit B to take into
account surrounding circumstances, tlmt to ascertain
what those circumstances are, it will be necessary to
take evidence, and that, in consequence, a question of
that kind could not he permitted to be agitated for
the first time in appeal. But it is well-settled t.hat no
evidence is admissible on a question of constructioi1
of a contract or grant, which must be based solely on
the terms of the documeut., there being no suggestion
before us that there is· any dispute as to how tire
contents of the document are rehited to existing facts.
Vide Balkishen ·Das v. Ler,ne <1) and ./l!aumJ ](yin v.
Ma Shwe La('). It should, moreover, be mentioned
that when the defendants sought to raise this contention in their appeal in the District Court, no objection
was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right iri allowing
thi~ point to be taken. This contention must therefore be rejected.
The next point for determination is as to the true
character of tho grant under Exhibit B, whether it
amounts to a new Patni with reference to the
Chaukidari Chalcaran lancls as contended for b;y the
appellant, or whether it incorporates those lands in
the Patni of lot Ahiyapur, so as to mako them part
and parcel· of ~he lands comprised therein, as is
ruaintaint)cl by the respondents.
To appreciate the
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(1) (1899) L.R. 27 I.A. 58, 65.
(2) (1917) L.R. -14 I.A. 236, 243.
.
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S.C.R.
I
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SUPREME COURT REPORTS
1315
true position, tt 'is necessary to examine what the
rights of the Zamindar and 'of the Patnidar were
with respect to Chaukidari dhakaran lands at the
time of the grant, Exhibit B.
These lands had been
originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted
to the Zamindar in permanent settlement, the . income
therefrom was not taken into account in fixing the
jama payable .by him, though they passed to him
under the permanent settlement. Then came the
Village Chaukidari Act, and under that Act the
Government put an end to the services of the
Chaukidars as village watchmen, resumed the lands
arni imposed assessment thereon, and, subject to it,
transferred them to the Zaminda?'; and where the
Zamindar had already parted with the village in
which the lands were situate, by granting Patni, it
became necessary to define the ·rights of the Zamindar
anp the Patnidar with reference to those lands.
•Dealing with this matter, s. 51 of the Act provides
that the title .of the Zamindar on resumption and
transfer by the Government iihall be subject to " all
contracts theretof9re made". Under this section, the
Patnidar would be entitled to the Chaukidari Chakaran
lands in the same right and on the saine ·terms on
which he held the village in which they are situate.
The nature of this right has been the subject of
consideration in numerous authorities, and the law on
the subject.is well-settled. In Ranjit Singh v. Maharaj
Bahadur Singh ('J, it was held by the Privy Com1~il
that though the reservation under s. 51 is of rights
under contracts made by the Zamindar and the word
" contract" primarily means a transaction which
creates personal obligations, it might also refer to
transactions which create real rights, and that it was
in that Jlense the word was used in s. 51, and that
accordingly the Patnidar was entitled to institute a
suit against the Zamindar for possession of those
lands and was not obliged to sue for specific perfor"-
mance.
Bpt this d_oes not mean that the Patnidar is
(1) (1918) L.R. 45 !.,\., 162.
167
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RiJdha Sundar
Dutta
v.
Af ohd. ] ahadur
Rahim
V enkutaramu '
Aiyar ].
..
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•
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•
Radha Sundar
Dutta
v.
,\f ohd. ] ahadwr
Rahim
V enkatar:ima
Ai)•ar ].
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1316
SUPREME COURT REPORTS
[1959)
entitled t-0 hold the lands free of all' ~ligations. Ho
is under a liability to R~Y to the Zamindar tho assessment due thereon, when it is fixed under s. 50, and
also a share of profits. Vido Bhupendra Narayan
Singh v. Narapat Singh('), where it was hekl by the
Privy Council that when Chaukidari Chakaran' lands
included in a Patni settlement had been rosurned and
transferred to the Zamindar under s. 51 of the Act,
he is entitled to the payment of a fair and equitable
rent in respect thereof, and that the fixing of the rent
is a condition t-0 the Patnidar being put in possession.
Vide
also Rajendra
Nath Mukherjee v. Hiralal
Mukherjee(') and
Gopendra Chandra
v. Taraprasanna (').
These being the rights and obligations of tho
Zamindar and the Patnidar under s. 51 of the Act, a
grant of the Chaukidari Chakaran lands by
the
former to the latter serves, in fact, two purposes. It
recognises that the grantee is entitled t-0 hold those
lands by virtue of his title as Patnidar-of the vill!\ge
of which they form part, and it fixes the amount'
payable by him on account of assessment and share
of profits. The questit>n then arises as to what the
exact relationship is in which the new grant stands t-0
the original Patni grant.
Now, whens. 51 of the Act
recognises'a.nd saves rights which had been acquired
under contract with the Zamindar, its reasonable
implication is that the rights so recognised arc the
same as under the contract, and that, in consequence,
the settlement of the Chaukidari Chakara,n lands in
Pptni must be taken to be a continuance of the Patni
of the villa.go in which they are included.
J~ut it is
open to the parties t-0 agree that the Chaukidari
Chakaran lands should form a new and distinct Patni,
and the result of such an agreement will be that
while tha grantee will hold those lands in Patni right,
that is to say, the tenure will be perma,nent, h,eritablc
and alienable so far as his liability to pay jania and
the corresponding right of the Zamindar to sell it
11nder .the Regulation if there is any default in the
(1) (1925) L.R. 52 I.A. 355.
(2) (1906) 14 C.W.N,995 .
• (3) (1910)
01.L.R. 37 C&I. 598.
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1
1317
payment thereoi 'are concerned, the new grant will be
an entity by itself independent•of the original Patni.
That that could be done by agreement of parties is
w\Il.settled, and is not disputed before us. If that is
the true position, then the real question to be considerec! is, what is the agreement of parties with reference to the Chaukidari Chakaran lands, whether they
"
are to be constituted as an independent Patni or
whether they should be treated as a continuation of
the original Patni or an accretion thereto, and the
answer to it must depend on the interpretation to be
put on the grant.
It is now necessary to refer to the material terms of
Exhibit B under which the Chaukidari Chakaran lands
wet'l'l granted to the predecessors of respondents 1 to 7.
It begins by stating that the Patnidars of lot Ahiyapur
appeared beforethe Zamindar and "prayed for taking
Patni settlement of the said 84 Bighas 18 Cottas of
land at a yearly rental of Rs. 126/8 as.", and then
prqvides how the amount is to be paid. Then there is
'the following clause, which is important:
"You will pay the rent etc., Kist after Kist according. to the Kistbandi in accordance with law, and if
you do not pay the same, I will realise the arrearn
together with interest and costs by causing the aforesaid lands to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws
which are in force or will come into force .... ".
Then follow provisions relating to the transfer by the
Patnidars of " the aforesaid lands", succession by
" inheritance or by will to "the aforesaid lands " and
the regi~tration of the name of the transferee or
successor in the Sherista, and it is expressly stated
that " so long as the name of the new Patnidar is not
recorded in the Sherista, the former Patnidar whose
name is recorded in the Sherista will remain !table for
the rent, ~nd on a sale of the Mahal by auction on
institution of proceedings against him under Regulation VIII of 1819 or any other law that ;;vill he in forc"l
for realisation of arrears of rent, no objection t:Jiereto
~
__.1
on the part-of the new Patnidar can be entertained."
•
Radha Sunday
Dutla
v.
A1 ohd. j ahadu,.
Rahitn
V e.nkatarama
Aiya,. ].
•
•
•
Radha Sundar
Dutta
v.
~\f ohtl. J ahadur
Rahim
l' 6nlralara1na
Aiyar ].
•
•
•
•
I
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1318
1 SUPREME COURT REPORTS
[1959)
Then, there arc two clauses on whicl\ iho respondents
rely, and they are in these terms:
" If in future it tra1f.~pires that any other persons
besides yourselves htivc Patni right,• in the Patni
int.crest. of t hr. said lot Ahiyapur, such persons shall
hav~ Patni rights in these Cha/co.ran lands also- to the
same extent and in the same manner as they will be
found to have int<Jrcsls in the Patni of the aforesaid
lot, and if for the s::1id reason any person puts forward
any claim against the Raj Estate and the Raj Estate
has to suffer any loss therefor, you will make good the
said claim and the loss without any objection. If in
future t.he l'atni interest in tho said lot Ahiyapur he
transforred for liabilitv for arrears of rent or if the
same comes to an end for any reason, then your P11tni
interest in these Chak.aran lands also will bo transferred
or will come to an end alongwith tho original Patni
simultaneously."
lt is on these two clauses that the learned Judges in
the Court below have based their dct)ision that J,lie
intention of the parties was to treat the suit lands air
part of the Patni of lot Ahiyapur. Now, it cannot be
disputed that the
~wo clauses
aforesaid afford
considerable support to the conclusion to which "the
learned Jud~es have come.
The first clause provides
that if besides the grantee under Exhibit B, there were
other persons entitled to J'atni rights in lot Ahiyapur,
those persons also shall have Patni rights in Chaukidari
Chakaran litnds to the same extent as in Patni
Ahiyapur. That clearly means that tho .rights conterrcd on the grantees under Exhibit B harn their
roots in the l'atni lot of Ahiyapur. Likewise., the provision in the last clause that the grantees will lose
their rights to tho Chaukidari Cha/co.ran lands if their
interest in Ahiyapur Patni was sold cloarly suggests
that tho grant under Exhibit B is to be an annexe to
the grant of Ahiyapur.
•
As against this, the appellant argues tha't the othor
clauses in Exhibit B quoted above strongly support
"his contention, and that when the document is read
as a ·whole, it unmistakably reyeals an.intention to
treat the suit l~nds as a distinct Patni, \Ve must now
.
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S.C.R.
SUPREME COURT REPOR'.J.IS
1319
refer to thes~ Gia.uses.
Exhibit B begins by reciting
that the grantees desired.to take a Patni settlement of
84 Bighas 18 Cottas, which i~ some indication, t~o~gh
not very strong, that it is to be held as a d1stmct
entity. We have then the clause which provides that
whgn there is default in the payment of kist, tbe lands
are liable to be sold in proceedings instituted under the
Regulation. Now, the law had long been settled that
a sale of a portion of a Patni is bad, but that if by
agreement of all the parties interested different portions thereof are held under different sanads, which
provide for sale of those portions for default in payment of kist payable respectively thereon, then each
of those sanads might be held to have created a
.separate Patni in respect of the portion comprised
therein. Vide Mohadeb Mundul v. J"Jfr. H. Cowell (1)
and Monomothonath Dev and another v. Mr. G.
Glascott (').
\Vhen, therefore, the Zamindar and the
Patnidar agreed under Exhibit B that, the lands
com prised ~herein could be sold under the Regula ti on
' when there was default in payment of kist fixed therefor, they must clearly have intended that those lands
should be constituted into a distinct Patni. Otherwise,
•the clause will be inoperati'7'e and void, and indeed, the
learned Judges in the Court below have, on that ground,
declined to give any effect to it.
•
Now, it is a settled rule of interpretat.ion that if
there be admissible two constructions of a document,
one of which will give effect to all the clauses therein
while the other will render one or more of them
nugatory, it is the former that should be adopted on
the tirinciple expressed in the maxim "ut res magis
valeat quam pereat ". What has to be considered therefore is whether it is possible to give effect to the clause
in question, which can only be by construing Exhibit B
as creating a separate Patni, and at the same time
reconcile the last two clauses with that•construction.
Tali:ing first the provision that if there be other persons
entitled to the Patni of lot Ahiya pur they are to have
the same rights in the land comprised in Exhipi.t B,
(1) (1871) 15 Weekly Reporter 445.
(2j (1873) 20 Weekly Reporter 275.
•
•
•
Radha Sttndar
Dutta
v.
Mohd. j ahadur
Rahi11i
V enkatarama
Aiyar ].
•
lJitlta
v
Alohd. Jaliadi.r
Ra Iii'"
Venkatara1no
Aiyar J.
•
•
I
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1320
SUPREME COURT REPORTS
[1959]
that no doubt posits the continuance in !Jiosc persons
of the title under the Qrigjnal Patni.
But the true
purpose of this clause is, .in our opinion, not so much
t-0 declare the rights of those other persons which rest
on statutory recognition, but t-0 provide that the
gra.n!Re,<; under the document should take subject to
those rights. That that is the purpose of the ela.use is
clear from the provision for indemnity which is contained therein. .Moreover, if on an interpretation of
the other clauses in the grant, the correct conclusion
to come to is that it creates a new Patni in favour of
the grantees thereunder, it is difficult to see how the
reserrntion of the rights of the other Patnirlars of lot
Ahiya.pur, should such there be, affects that conclusion.
We are unable t-0 see anything in the clause under,
discussion, which militates against the conclusion that
Exhibit B creates a. new Patni.
Then there is the clause as t{> the cesser of interest
of the grantees in the Chaukidari Chakaran lands whon
their title t-0 lot Ahiyapur comes to an end, a11d according to the respondent.s, this shows that under Exhibit B •
the Chaukiduri Cha.kara.n lands are treated as part
and parcel of the Ahiya.pur Patni. If that were so, a
sale of lot Ahiya.pur must C'a.rry with it the Chaukidari •
Chakaran lands, they hcing ex hypothe.si, part and
p•~rcel thoreo{. aud tla,re was no need for a provision
Ruch as is ma.de in the last clause.
But that. clause
would serve a real purpose if the Patni under
Exhibit B is construed as separate from t.ha.t of lot
Abiyapur. In that view, when the major Patni of lot
Ahiyapur is sold, the intention obviously is that tho
rninoi; Patni under Exhibit B, should not stand out
but be cxtinguished,-a result which could be achieved
only by a special provision.
We should finally refer
to the chuses in Exhibit B pro\'iding for transfor of
or succession to the Chaukidari Chal:aran lands and
for the recognition of such transferee or successor as a.
Patnidar of those lands. It is clen.r from these prt>visions that such a transferee or successor is t-0 hold the
lands a.s a Pa{nirlat, different from the Patnir/,ar of lot
Ahiyapur .• Rea.ding these clauses along with the last
c~use, it seems clear that the intention•of the tiarties
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S.C.R.
SUPREME COURT REPORtS
1321
was that whi~e 'a transfer of the Ahiyapur Patni by
sale should extinguish th@ tltle of the holders of the
Chaukidari Chakaran lands 'a transfer of these lands
would have no effect on the title to the lot Ahiyapur
Patni. Construing Exhibit B, as a whole, we are of
opirtion that the intention of the parties as eX!Jressed
therein was that the Chaukidari Chakaran lands should
be held as a distinct Patni.
We must now refer to the decision on which the
learned Judges in the Court below have relied in
support of their conclusion. In Kanchan Barani Debi
v. Umesh Chandra (1), the facts were that the Maharaja
of Burdwan had created a Patni of lot Kooly in 1820.
The Chaukidari Chakaran lands situated within that
flillage were resumed under the Act and transferred to
the Zaminclar who granted them in 1899 to one
Syamlal Chatterjee in Patni on terms similar to those
in Exhibit B. In 1914 the Patni lot Kooly was sold
under the Regulation, and purchased by Smt. Kan-
,chan Barani. Debi. She then sued as such purchaser to
recover possession of the Chaukidari Chakaran lands.
The defendants who represented the grantees under
the Patni settlement of 1899 resisted the suit on the
ground that the sale of Patni Kooly did not operate
to vest in the purchaser the title in the Chaukidari
Chakaran lands, as they formed a· drstinct Patni.
Dealing with this contention, B. B. Ghose J. who
delivered the judgment of the Court, observed :
" It is certainly open to the only two parties concerned t,o alter the terms of the original patni if they
chose to do so; and what we have to see is whether
that-.was done. In order to do that, we have to
examine the terms of the pattah by which the
Chaukidari Chakaran lands were granted to Syamlal
Chatterjee."
The learned Judge then refers to the two ,clauses correspQnding to the last two clauses in Exhibit B, and
comes to the conclusion that their effect was merely to,
restore the position as it was when the original Patni
was created, and that, in consequence, the purcltaser
was entitled to the Patni as it was createa in 182(1,
(x) A.l.R0 1925 Cal. 807.
•
Radha Sundar
D11tta
v.
Mohd. jahadur
Rahim
•
V ankatarama
Aiyar ].
•
R11dha
-,·1111J~11
D11tta
v,
1llohd. Jah:idur
Utihi•n
Ve11kaJar(Ht1a
Ai}·ar J.
•
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I
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1322
SbPREME COURT REPORTS
(1959]
a.nd that tho plaintiff wa.s entitled to tlieoposs~ssion of
the Chaukidari Chakara'lt lands a8 being pa rt of the
Palni.
:Now, it is to be ~bscrved that in decicling that
the Chaukidari Chakaran lancl8 gmnted in 1899 became
merged is lot Kooly, a8 it was in 1820, the lcarnG'Ci
Judge did not consider the effect of the claust: pwvid·
ing for sale of those land8 as a distinct entit v under
the provisions of the Hegulation when tliere was
default in the payment of rent payable thereCtn under
the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable
to hold that the two clauses on which the learned
Judges base their conclusion are really i11consistent
with the earlier clauses which support the view that
the grant under Exhibit Bis of a distinct Putni. :Noll
du we agree with them that the earlier clause providing
for the sale of the Chaukidari Chakaran lands in default
of the payment. of jamu, should be construed so a;; not
to override the later clauses.
If, in fact, there is a
conflict between tho earlier clause and the latnr clauses
and it is not possible to give effect to all of them, thcn 0
the rule of construction is well-established that it is
the earlier clause that must override the later elauAes
and not vice versa.
In F'orbes v. Git(1), Lol'd \Vren:
bury stated the rule in the following terms:
" If 111
& <fued an earlier clause is followed by a
later clause which destro) s altogether the c•bligation
created bv the earlior clause, the later clauso is to be
!'ejected as repugna11t and the earlier clause pre\'ails.
ln this case the two clauses crrnnot be reconciled and
the earlier pro1•isio11 in the deed prevailR <;ver the
later:"
We accordingly hold that Exhibit B created a new
Patni and that the sale of the lands corn prised therein
i~ not bad as of a portion of a Pat11i.
We a.re c<inscious that we are diffcri11g from the
learned J udgcs of the Court below on a quest ion r~lat
ing t-0 a local tenure on which thefr upinio11 is, by
mason of the special knowledge and experience which
thc.i"havc of1t, eniitlecl to the greatest weight. lt is
~so true that the decisio11 in Kanchan .Barani J)ebi v.
(1) (19»] I A.C; 256,
0 2)9·
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S.C.R.
SUPREME COURT REPORTS 1
1323
Umesh Ohandr~ rl has stood now for over three
decades, though it is pertirnmt to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High
Court, prior to this litigation. But then, the question
is one 6f construction of a deed, and our decision •that
the effect of an agreement of the kind in Exhibit B
was to constitute the Ohaukidari Ohakaran lands into
a distinct Patni will not result in any injustice to the
parties. On the other hand, the rule that a portion of
a Patni should not be sold being one intended for the
benefit of the Patnidars, there is no reason why an
agreement entered into by them with the Zamindars
providing for the sale of a portion, thereof-which is
reaJly to their advantage, should not be given effect to.
Having anxiously considered the matter, we have
come to t)le conclusion that Exhibit B creates a
distinct Patni, that the sale thereof on May 15, 1937,
is valid, and that the plaintiff has therefore acquired
a good title to, the suit lands under the grant dated
•February 13, 1941. In this view, it is unnecessary to
express any opinion on the point that was the subject
of considerable argument before us as to whether it is
op~n to the defendants to raise the invalidity of the
sale held on May 15, 1937, in answer to this action,
they not having taken steps to have set iiJ. aside, as
provided in s. 14 of the Regulation.
•
In the result, the appeal is allowed, the judgment of
the lower Court reversed and that of the District Judge
restored, wjth costs throughout.
Appeal allowed .
. .
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(I) A.I.R. 1925 C&l. 807 .
•
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Radha Sundar
Dutla.
v.
Mohd. jahadttr
Rahi1n
Venkalarama
Aiyar ].
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