# JIBON CHANDRA SARMA DOLOI v. AN ANDI RAM KALITA AND OTHERS

- **Citation:** [1961] 3 S.C.R. 947
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** Civil Appeals Nos. 105 and 106 of 1957
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jibon-chandra-sarma-doloi-v-an-andi-ram-kalita-and-others-1951
- **Pages:** 9

## Headnote

Brahmollar land-If alienable-Burden of proof-Assam Land
and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.
The plaintiff-appellant filed a suit alleging that the lands in
•uit were unauthorisedly transferred to the \)redecessors in mle
l?t
I96I
Raje Anandrao
v.
Shamrao
wa.nchoo J.
February a3.
SUPRE.\fE COURT REPORTS
[1961]
r96r
of the respondents. His contention was that the lands were
granted to the Bardeuries (officials) of a certain ancient temple in
Jibon Chandrn
Assam in order to enable them to render service to the deities
Sarma Dotoi
installed in the temple and as such the lands were inalienable to
v.
stran~ers other than the Bardeuries.
AnandiRain f\·alita
Held, that in view of the history of land tenure in Assam
and by virtue of the relevant statutory provisions of Assam Land
and Re,•enue Regulation (Reg. I of 18Sb) the lands mu>t be
deemed to be heritable and transferable without any restriction.
The transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under s. S(r)(a) and becam<•
"land holders" under s. 3(g) of the Regulation and consequently
s. g applied to them statutorily recognising their rights in the
lands to be permanent, heritable and transferable.
To prove the plaintiff-appellant's contention that the lands
could be alienated only to a specified class of persons, the onus
was on the appellant and not on the respondents to prove the
contrary.

## Text

>
'
3 S.C.R.
SUPREME COURT REPORTS
947
(3) The box may be op~ned once in a month or
oftener as desired by the pujaris but not more than
once in a week.
(4) The amount found in the box may be noted
by the management; the whole of it should be
handed over to the chosen representative of the
pujaris on behalf of all the pujaris in case the ex.
penditure for dhoop, deep and neivedya for the period
prior to the opening has been met by the pujaris.
In case however sucli expenditure has been met by
the management, the balance after deducting such
expenses, shall be immediately paid to the chosen
representative of the pujaris on behalf of them all.
The last provision has been made to make it clear
that the management will not t:tke away the money
but immediately give it to the representative of the
pujaris for distribution among them. The provisions
of the Public Trusts Act will be satisfied. in that the
management will be in a position to know how much
has gone to the pujaris including the amount spent
on dhoop, deep and neivedya.
This provision will also
take away any objection about there being interference
with the private rights of the pujaris under the agree.
ment of 1872.
We therefore allow the appeal, set aside the order
of the High Court and restore the revised scheme
subject to the modifications suggested by us above.
The Districi Judge will see that these modifications
are embodied in the revised scheme.
In the circumstances of the case we order parties to bear their own
costs.
Appeal allowed.
JIBON CHANDRA SARMA DOLOI
v.
AN ANDI RAM KALITA AND OTHERS.
(P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
Brahmollar land-If alienable-Burden of proof-Assam Land
and Revenue Regulation, I886 (Reg. I of z886), ss. 3(g), B(r)(a), 9.
The plaintiff-appellant filed a suit alleging that the lands in
•uit were unauthorisedly transferred to the \)redecessors in mle
l?t
I96I
Raje Anandrao
v.
Shamrao
wa.nchoo J.
February a3.
SUPRE.\fE COURT REPORTS
[1961]
r96r
of the respondents. His contention was that the lands were
granted to the Bardeuries (officials) of a certain ancient temple in
Jibon Chandrn
Assam in order to enable them to render service to the deities
Sarma Dotoi
installed in the temple and as such the lands were inalienable to
v.
stran~ers other than the Bardeuries.
AnandiRain f\·alita
Held, that in view of the history of land tenure in Assam
and by virtue of the relevant statutory provisions of Assam Land
and Re,•enue Regulation (Reg. I of 18Sb) the lands mu>t be
deemed to be heritable and transferable without any restriction.
The transferor Bardeuries, who held the lands described as brahmottar lands in revenue records, fell under s. S(r)(a) and becam<•
"land holders" under s. 3(g) of the Regulation and consequently
s. g applied to them statutorily recognising their rights in the
lands to be permanent, heritable and transferable.
To prove the plaintiff-appellant's contention that the lands
could be alienated only to a specified class of persons, the onus
was on the appellant and not on the respondents to prove the
contrary.
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos.
105 and 106 of 1957.
Appeals from the judgment and
decree dated
April 8, 1954, of the Assam High Court in Appeal
from Appellate Decree Nos. 41 and 54 of 1951.
L. K. Jha and D. N. Mukherjee, for the appellant.
N aunit Lal, for respondents Nos. 1 to 12.
1961. February 23. The Judgment of the Court was
delivered by
Gajendragadkar ]·
GAJENDRAGADKAR, J.-These two
appeals arise
from a suit instituted by the appellant in the Court of
the Special Subordinate Judge, Assam Valley Districts,
in which he claimed a declaration that the sale deeds
of lands described in detail in the various Schedules
attached to the plaint were void and for possession of
the litnds covered by the said sale deeds. His case
was that Madhab Temple at Hajo is a ver:' ancient
temple and the Assam Rajahs had granted lands to the
Bardeuries (temple officials) to enable them to render
service to the deities installed in J;he said temple. The
lands thus granted to the temple officials were endowed
lands and the same had been burdened with service to
the temple ; in other words, the grantees were entitled
to enjoy the lands on condition that they rendered the
...-
~
requisite service to the temple.
As a c_orollary of th\l
• •
3 8.C.R.
SUPREME COUHT ltEPOR'l'8
949
burden imposed on the grantees by the said grant the
I96I
lands we. re inalienable to strnnbcrers though they could
-
J ibon Chandra
be transferred to anv of the Bardeurie; of the temple.
sa,,,,a Doloi
According to the ap.pellant the said lands had originv.
ally been granted to Hem Kanta 8arma and Uma AnandiRam l<alita
Kanta Sarma who were then the worshippers at the
--
temple. The respondents who were impleaded to the Gajendragadkar J.
suit represented the heirs (if the original grantees and
assignees from those heirs. The appellant has brought
this suit on behalf of the Madhab Temple at Hajo, aJHl
his case is that the alienations made by the worshippers in favour of non-worshippers were invalid and so
the temple was entitled to claim a declaration as set
out in the plaint and to ask for possession of the lands
unaudwrisedly transferred to the μredeccssors in title
of the respondents. The lands in suit have been
described in detail and specified in three Schedules
called Ka, Kha and Ga.
The respondents denied this claim. They urged that
the original grants were not burdened with service and
were alienable without a.ny restriction whatever. They
also pleaded that they had purchased the lands bona
fide for valuable consideration and without notice of
a.ny such burden or obligation subsisting on the lands.
Besides, they added a plea. of limitation in respect of
the lands specified in Schedules Kha and Ga.
The trial court upheld the appellant's contention
a.nd ma.de a finding that the lauds in suit were burdened
with service with the resnlt that the impugned alienations were void. It also found that the purchasers
had not shown that they had made adequate enquiries
and so their plea that they were purchasers without
notice could not be sustained. On the ·question of
limitation, however, it accepted the plea raised by the
respondents in respect of the lands described in Schedules Kha and Ga. In regard to the lands desci:ibed
in Schedule Ka the trial Court directed that the appellant should obtain delivery of possesaion of the said
lands through the transferor-defendants or their heir
if the latter were willing to render service to the
temple; otherwise the appellant was held entitled to
get independent possession a.nd the said transferors
"
1150
SUPREME COUR'f REPORTS
rj l\ll.l)
t.a.uv
i96i
would be deemed to have relinquished their interest
in the said lands.
J ibon Chandra
Sarma Dolo•
This decree gave rise to cross appeals before the
v.
District Court. The said appeals were heard together
AnandiR•m K•lit•and the appellate court confirmed the decree passed
-
by the trial court in respect of Kha and Ga lands. In
G•jendragadkar J. regard to the lands in Schedule Ka the appellate court
maintained the declaration in favour of the appellaut
but discharged the conditional decree for possession
because it held that in regard to the said lands the
appellant must be left to move the sovereign authority
to sue for resumption of the said lands.
This appellate decree became the subject matter of
two appeals and cross objections before the High
Court. The High Court has held that the finding concurrently recorded by the courts below in regard to
the burden subsisting on the lands in question was
based on evidence most of which was hearsay and the
whole of which taken together was meagre and insufficient in law to sustain the said finding.
The High
Court has also criticised the courts below for placing
the onus of proof in regard to the character of the
lands on the respondents. According to the High
Court it was for the appellant to prove his case in
respect of the nature of the original grant. The High
Court has then taken into account the fact that the
evidence shows that many of the lands were transferred to strangers and that was inconsistent with the
case made out by the appellant. Besides, the High
Court has referred to the fact that the lands in question are described as Brahmottar lands in revenue
papers and that clearly shows. that the said lands are
heritable and transferable without restriction. On the
question of limitation the High Court has accepted
the plea of the respondents that Article 144 of the
Limitation Act applied. As to the declaration granted
to the appellant by the District Court the High Court
has observed that the said declaration was absolutely
futile. In the result the suit preferred by the appellant has been dismissed with costs throughout. It is
this decision which is challenged before us by the
appellant with a cerLificate granted to the appellant by
the High Court in that behalf.
.
'
• •
I
•
3 S.C.R.
SUPREME COUltT REPOltTS
9.'\l
The principal point which has been urged before UH
1961
by Mr. Jha for the a11pellant is that the High Court J ibo11 Cha11dta
was in error in coming to the conclusion that lands in
s •. ,,,,. Doloi
suit which are admittedly described
1~s Brahmottar
v.
lands in the revenue records are transfernble without .·lnandiRam [(alita
any restriction.
In support of its conclusion the _ . --
High Court has referred to the history of the lands, Ga;en.dragadk"' 1 ·
the nature of the initial grant and the recognition of
the title of the grantees by the British Government
after it conquered Assam and of the several steps
taken thereafter. This history lms been set out in detail
in the Assam Land Revenue lllanual (1 ).
From this
introduction it appears that Ni•f-khiraj (half-revenue
paying) estates as distinguished from Khiraj (fullrevenue paying) estates form a class of tenure found
only in Assam Proper and they have a special history
of their own. In 1834, shortly after Assam was annexed
by the Government of India it ruled that "all rights
to bold l:inds free of assessment founded on grants
made by auy former Government must be considered
to have been cancelled by the British conquest. All
claims therefore for restoration to such tenure can rest
only on the indulgence of the Government without any
right." This ruling clearly and emphatically brought
out the legal consequences of political
conquest.
Grants made by the previous Governments came to an
end and their continuance a.fter the conquest would
depend upnn the indulgence of the succeeding Government.
It appears that prior to the conquest of Assam
under the previous regime the predecessors in interest
of the then owners of ~isf-khiraj estates held their
lands revenue-frrp and called themselvP,s lakhirajdars.
They continued to describe themselves as such even
after their lands were resumed and assessed at half
rates. Mr. Scott, the first British Commissioner of
Assam, refused to recognise any claims to hold land
revenue-free.
Research made by him in that behalf
showed that even prior to the Burmese conquest of
Assam lakhiraj land had occasionally been assessed at
five aunas a pura (four bighas) in times of trouble by
(•) Vol. I, 6th Ed., p. !xv;;_
952
SUPREME COUit'l' REPORTS
[1961]
the Assam Rajahs themselves. Basing himself on this
precedent Mr. Scott fixed the assessment of the said
J ibott Cha#dra l
Sarrna Doloi
and at the •aid rates and subsequently increased it to
v.
seven or eight annas a purn. This imposition was
,,...,,,uR..,,.Kali1aknown as Police Barangani.
Captain (afterwards General) Jenkim became lhe
Gaje~dr•gadlar J. Commissioner of Assam in 1834.
The lakhirajditrs
objected to pay the tax imposed on their lands by
Mr. Scott on the ground that Mr. Scott intended to
levy the said tax temporarily and had promised to
remit it. This dispute was referred by General Jenkins
to the Government of India. who replied that they saw
no reason to believe that the tax imposed by Mr. Scott
was intended to be temporary, and they added that if
it was Mr. Scott's intention it would not be valid
beca 01se Mr. Scott had not obtained the sanction of the
Government in that behalf. Even so, the Government
of India directed that a. full enquiry should Le made
into all claims to rent-free lands on the part of Rajahs
or as debotter or dhli.rmottar or on any other plea
throughout the districts of Assam and Captain Bogle
was appointed Special Cummissioner to make the said
enquiry under R~gulation III of 1818. This enquiry
had to be held subject t.o the control and orders of
General Jenkins. The Government prescribed certain
principles to guide Capt"'in Bogle in his enquiry. One
of these principles was that pending the lakhira.j
enquiry Mr. Scott's moderate rates were to be levied.
The orders issued by the Government in that behalf
clearly declared the right of the Government to assess
all lands held revenue-free in A~sam Proper, but
subject to this right Government were prepared to
grant the indnlgence of restoring to the lakhirajda.rs
all lands held by them and to confirm them in
possession.
It appears that the instructions issued by the
Government were not fully ca.rllied out by General
Jenkins. Instead of treating all la.khira.j lands a.s
being on the same footing a.nd liable to assessment the
Genera.I drew a. broad distinction between debotter
Ia.nds which were a.ppropria.ted to temples and lands
known as bra.hmottar or dharmottar, that is to say,
.
'
··-' - -,._
,
/
3 S.C.R.
_.SUPREME COURT REPORTS!
953
~ ._
...... ;.·,
-~------ -
'
\
_'·
. ,.
''":-~-----·--.
" ' lands devoted to some religious purpose not being
r96r
. temple lands. · In· respect of the former he confirmed
. --
. the gr.ants revenue.fri:e. In respect of the latter he 1!~, c~-i~·
simply confirmed the grantees in possession subject to
· ''":.,
0
'
the payment of Mr. Scott's favourable rates 'untilA•andi Ram Kalila
Captain Bogie's eriquiry ·was terminated and final ., . ~ . ,
orders p'isrnd in that behalf. ·
· · · · · · ·
.
.1 - < Ga;nodra1adAar J.
'It is cu~ious .that though_ the enquiry of Captain
Bogle' went on for many years it was not formally
completed till the year 1860. By that time the instr'uctions issued by the Government of-India at the com-
. menc'ement of the enquiry \vere lost sight of, · No
'report' was submitted to the Government. bJ' _the
Pnquiring officer and final orders of the Government-of
India were not obtained on _thequestion whether the
·holders of brahmottar and dharmottar la-rids-were to
. hold their lands at the rates fixed by General 'Jenkins.
In consequence· holders of these lands have ever since
. ·continued to hold at· half rates without any formal
' decision by t.he ·Government of India ·having beeri
'reached in that behalf.
1
. Subsequently the __ holders'
rights to continue to hold the lands at· tho said rates
have beeri recognised and their holdings have been
declared to be heritable and transferable by'· the
Government of India· in 1879.
·
'
· '· · ''
. · This summary of the history of these iandswhi~h is
t<> be found in . the introduction to the Assam Land . ·
Revenue i\fan1ial shows that Nisf.khirajdar of. ~he ~-..
present day "is ordinarily a person whose lands'.19-ere
claimed by his ancestors revenue-free. on. the. groinid
that they were granted by the Assam . Rajas for some
religious or charitable purpose". It appears' that the
word "Nisf-khiraj" was invented for the first-time in
1871 and it applied to all estates which paid half the
ordinary revenue rates .. This. word was presumably
invented to avoid c1mfusion caused by the use of the
,word .. lakhiraj" which had been applied to them_ prior
tol87l. __ ·.
:
.
•-; .,
·. '
- .
·-··
[·
·•The hlstory of this tenure is similarly stated in the
Goverpnient Gazette relating to A8sam as well as by
Baden_-Powell (Vo_!. III, pp. 406 followingj.
. .
954
SUPREME COURT REPORTS
[1961]
1961
At this stage it would be necessary to refer to the
relevant provisions of Regulation I of 1886. It is.
Jibon Chandra
JJ d h A
L
50,, •• Do1o;
ca. e t e ssam and and Revenue Regulation of the
v.
sa.id year. Section 3(g) of this Regulation defines
.-lnandiRam Kalil•" la.nd holder" as meaning any person deemed to have
acquired the status of a land holder under s. 8; while
Gajeodrogadk•r f- s. 8 (I) provides, inter alia, that any perso11 who has,
before the commencement of this Rrgulation, held
immediately under the Government for ten years continuously any land not included either in a permanently settled estate. or iu a revenue-free estate, and
who has during that period paid to the Government
the revenue due thereon or held the same under an
express exemption from revenue, shall be deemed to
have acquired the status of a land holder in respect
of the land. That takes us to s. 9 which provirles that
a land holder shall have a permanent heritable and
transferable right of use and occupancy in his land
subject to the provisions contained in els. (a), (b) and
(c) of the said section. It is unnecessary to refer to
the said exceptions. It would thus be clear, and
indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under s. 8 (I) (a) and
became Ja.nd holders under s. 3 (g).
The inevitable
consequence of this position is thats. 9 applies to them
a.nd their rights in the lands in their occupation a.re
statutorily recognised to be permanent, heritable and
transferable. This statutory position is consistent with
the declaration made by the Government of India in
1879, and in view of this clear statutory position it
would be difficult to au.stain the plea that the lands in
question a.re burdened with the special condition that
they can he transferred only to Ba.rdeuries and not to
any strangers outside the group. As the High Court
ha.s found, and that is no longer in dispute, these lands
are described as brahmottar lands in revenue records
a.nd to the said lands anti their holders the statutory
provisions of the Regulation to which we have just
referred a.pplied ; therefore, it is impossible to escape
' .
the conclusion that by virtue of the relevant statutory
.... ,
provision8 of the Regulation the lands must be deemed
to be heritabk ~ncl t mnsforabl" without any Tf'Rtriction,
'
3 S.C.R.
SUPREME COURT REPORTS
955
1961
This aspect of the matter was completely ignored
by the trial court and the appellate court, and so the
Jib•• C1"'ndr•
High Court was right in correcting the error which had
Sarma,Doloi
crept irito the concurrent decisions of the courts below.
. v.
. .
Besides, the High Court was also right in holding Anand•R••• K•l•I•
that in a case of this kind where the appellant urged G . d-dA 1
that the lands could be alienated only to a specified aJ•• raga "' •
class of persons, the onus was on the appellant and
not on the respondents to prove the contrary. Failure
to put the onus on the appellant introduced a serious·
infirmity in the approach adopted by the courts below
in dealing with this question. · That . was another
infirmity in their decision. It is also clear that the
evidence adduced by the appellant in support of his
case to which reference has been made by the first two
courts is entirely unsatisfactory, and, even if it· is
believed, in law it would be insufficient to sustain the
plea that there was a limitation on the transferability
of the lands in question. We are also satisfied that
the declaration granted by the District Court was
futile. Therefore, in our opinion, the view taken by
the High Court is absolutely correct and the grievance
made by the appellant against the validity of the said
conclusion cannot be sustained.
In the result the appeals fail and are dismissed with
costs.
Appeals dismissed.
N. KASTURI
v.
D. PONN AM.MAL AND OTHERS.
(P. B. GAJENDRAGADKAR and IC N. WANcHoo, JJ.)
Will-Construction-Bequest to Kin the absence of adoptionTestator's intention to adopt K-Authority to adopt given lo widow
-No adoption made-K's rights, whether vested interest subject to
defeasance by subsequent adoption.
A testator, who was childless, executed a will on April 28,
1937, and died on March IO, 1939, leaving him surviving his
. ·•
widow. In cl. 6 of the will he expressed his desire to adopt a boy
and stated that in case he did not make an adoption during his
life-time his wife shall adopt K. He also conferred authorityQo hi~
~~2
1961