Decided on July 13,1901

Raja Pudmanund Singh Bahadoor Appellant
Hayes Respondents


RICHARD COUCH, J. - (1.) THE question in this appeal is as to the construction of a pottah (lease) made by Raja Lilanund Singh, the father of the appellant Pudmanund Singh, and by the latter on June 27, 1874. After reciting two deeds of gift by which Lilanund Singh gave to his daughter Srimati Jogmaya Dai two mouzahs therein described for her maintenance and that of her descendant with power to alienate the properties, that the properties were ancestral and at the time of the gift his son the first appellant was a minor, that a suit for setting aside the deeds had been brought on the part of Pudmanund Singh on the ground of their being illegal and was pending decision, that with a view to compromise the suit Jogmaya consented to relinquish the right which she had acquired under the deeds, and a compromise had been effected through the intervention of the Commissioner of Bhagulpore to the effect that Jogmaya "shall get an allowance of Rs. 6000 per annum during her lifetime, and her descendants who may under the Hindu law become her heirs shall get one-half thereof in perpetuity and in lieu of the same whatever profits the mouzahs which are held by the said Mussamat Jogmaya Dai under the deeds sought to be set aside may yield annually over and above Rs. 6000 being fixed at the jumma of those mouzahs, the said mouzahs shall be left in the possession of the said Jogmaya Dai, and on the death of the said Dai one-half of the said mouzahs shall permanently remain in the possession of her descendants who may be alive- at that time and be [her] heirs according to the Shastras on a jumma equal to one-half of the said jumma. The person holding possession of the property shall never have any right to alienate, i.e., to effect any sale, gift, or mortgage, or permanent mokurrun of the whole or a portion of the said properties," the Rajah and his son in effecting the compromise granted the pottah of the two mouzahs to Jogmaya Dai on the conditions specified by cancelling the former deeds. The conditions specified are that Jogmaya Dai should remain in possession of the properties during her lifetime, and pay to the lessors Rs. 1234, the annual jumma, and on her death her descendants, who might according to the Shastras become her heirs, should permanently remain in possession of one-half of the properties and pay the annual jumma of Rs. 617, that the lessee or her descendants should not have any power to transfer the property, and if there should be no descendants of the lessee, i.e., children born of her womb or their children, the lessors and their representatives should have power to resume and to take possession of the remaining one-half, and the properties mentioned in the pottah should revert to the Raj.
(2.) ON the same June 27 Jogmaya Dai executed a kabuliyat (counterpart), in which the terms of the compromise are stated to be substantially, though not in the same words, the same as in the pottah. The facts upon which the question in this appeal arises are these: On June 3, 1883, Raja Lilanund Singh died. In June, 1885, Jogmaya Dai mortgaged one of the mouzahs in the pottah called Duleri Alakhhari to Dhararu Chand Lal, since deceased, now represented by the respondents, his executors, and two other persons whose interests were afterwards acquired by him. She also gave a lease for ten years of the mouzah to Dharam Chand Lal in the names of two of his servants. Jogmaya died on April 9, 1889, and on March 22, 1892, notice was given to the mortgagees and the lessees for ten years to quit possession of the mouzahs. On April 7, 1893, a suit was brought by Pudmanund Singh and two other sons of Lilanund Singh, minors, by their guardian, against Dharam Chand Lai and the other mortgagees and lessees, and also against Bholanund Jha, otherwise Bholanath, the grandson of Jogmaya Dai, a minor, in which the plaint asked that it might be held that the plaintiffs were not bound by the mortgage and lease, and that they might be put in possession of a moiety of the property without prejudice to their right to resume the other moiety in the event of there being no lineal descendants of Jogmaya Dai. On August 4, 1893, before the defendants had filed any written statement of their defence, the plaintiffs having learnt that Bholanath Jha was born after the death of Jogmaya Dai, and being advised that as he was not in existence at the time of granting the pottah the disposition of the property so far as it would apply to him was void according to Hindu law, applied to have the plaint amended so as to claim the whole of the mouzah, which was allowed. No appearance was put in on behalf of Bholanath Jha.
(3.) UPON these facts the District Judge of Purneah made a decree in the plaintiff's favour for possession of the whole of the mouzah in dispute with mesne profits for three years. Dharam Chand Lal appealed from it to the High Court, which modified it by decreeing that the defendants should deliver to the plaintiffs possession of one-half only of the mouzah. The present appeal is from this decree, and the question is whether the whole of the mouzah has, under the terms of the pottah, reverted to the Raj. Mr. Cowell, who appeared for the respondents, did not dispute that Bholanath was by Hindu law incapable of taking under the pottah, not being then born; but he contended that the pottah might be construed as giving one-half of the mouzahs to Jogmaya Dai for life, and the other half to her for an inheritable estate, referring in support of his contention to Bhoobun Mohini Debia and Another v. Hurrish Chunder Chowdhry. L.R. 5 Ind. Ap. 138 That case is distinguishable from the present, as no previous life estate was given to the person who was held to take an absolute estate, and there were no words against alienation. If Jogmaya Dai took an estate of inheritance in that half, the restriction in the pottah of the power to alienate would be repugnant, or an attempt to take away the power which the law attaches to that estate. Jogmaya Dai could in that case at any time have disposed of that half by deed or by will. It was plainly not intended that she should have that power. According to the ordinary meaning of the words, the gift of the half is a specific one to her descendants, to take effect on her death.;

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