KUMAR KAMAKHYA NARAIN SINGH Vs. RAMRAJ SINGH

JUDGEMENT

(1.) This is the plaintiff's appeal arising out of an action to resume possession of a village named Ghangri which was with a village known as Kungurua with its tola Keotbigha the subject-matter of an Istamrari mokarrari grant by Raja Ramnath Singh, the ancestor of the plaintiff, to Sambhu Singh and Sheosaran Singh in the year 1864. Sambhu Singh predeceased Sheosaran Singh and the cause of action arose on the death of the latter in or about the year 1915; the actual date of the death of Sheosaran Singh being one of the disputed points in the case.

(2.) It was also an issue in the Court below whether the grant was merely a grant for the lives of the two grantees or whether it was heritable.

(3.) No argument was presented to this Court An the point as the appellant accepts the position that so far as this Court is concerned we are bound by authority, but the point is formally taken with a view to appeal. In the opinion delivered by the Judicial Committee of the Privy Council in Tulsi Prasad Singh v. Ramnarain Singh (1886) 12 Cal 117, it was said after reviewing the decisions: Their Lordships think it is established that the words istamrari mokarri in a patta do not per se convey an estate of inheritance, but they do not accept the decisions as establishing that such an estate could not be created without the addition of other words that are mentioned, as the Judges do not seem to have had in their minds that the other terms of the instruments the circumstances under which it was made, or the subsequent conduct of the parties, might show the intention with sufficient certainty to enable the Court to pronounce that the grant was perpetual. Nothing has been brought to our attention in this case to enable us to come to any conclusion other than that the grant before us was one for lives. In passing the learned Advocate made reference to the Record of Rights which describes this grant as "not resumable" but what effect this fact might have on the question was not developed in argument. Among the points which have been argued before this Court is whether the second grantee was one Sheosaran, a nephew of Shambhu, or whether he was Sheocharan, a son of Shambhu, as the defendants allege.