CHUNDI CHURN BARUA Vs. RANI SIDHESWARI DEBI

JUDGEMENT

(1.) THIS suit was brought by the Appellants in the year 1880, before the Court of the Subordinate Judge at Goalpara, for possession of the four mouzahs of Dalorgaon, Salbari, Dingaon, and Bhotegaon, which are part of the Vijni Raj estate in Assam. The original Defendant was the late Rajah Kumud Narain; and since his death the estate has been represented by his widow, the Ranee Sidheswari Deli, who is Respondent in this appeal. The foundation of the Appellants' claim is a deed alleged to have been executed by the Rajah Mukund Narain the ancestor of the Defendant, in 1185 Perganati (1778 A.D.) in favour of certain members of the Barua family, to which the Appellants belong. The document, according to the translation made by the Subordinate Judge, to which no exception has been taken by either of the parties, is in these terms: Let peace and health rest upon your dwelling, O Kasi Nath Barua, dewan, O Ram Nath Barua, O Dharmasil Barua, O Komolahant Barua, O Ram Jibun Barua. Inasmuch as because of my having caused the daughter of Kasi Nath Barua, dewan, to lose caste by taking her away, you and all your connections having become low in your minds, have conceived the design of abandoning my service and of withdrawing from my jurisdiction and going elsewhere and forasmuch as from the days of the Maharajahs, my deceased ancestors, you have all along been supported in various ways (such as) by service in my kingdom and by (grants of) villages and lands; and as I too am supporting you in the same maimer, and as you have now become dispirited and (therefore, it is proper) that I should shew you even greater kindness, (J have determined that) a means of support, that is, a perpetual wage, should be given to you; and in case in my time or in the time of my descendants, you or your descendants should not be supported in various ways (by me or by my descendants), then, as a means of maintenance, that is to say, as wages, I do hereby assign to you seven villages, namely, Shamraipara, Mauriagram, Daborgram, Salbari, Kaitpara, Dingaon, and Bholegaon in the nature of a fixed (perpetual) remuneration. However, as you are now being supported by (the profits derived from) three villages and by other means, for this reason four villages have not been made over to you. Those three villages that are now in your possession by virtue of farming leases, of leases for a fixed period, and of charitable grants (you will now hold), and you will pay rent for them, and other dues on account of them, as you have done from heretofore. If ever in the time of my descendants you are not provided with the means of maintenance (by them), then let those descendants of yours who may be living at that time produce this deed, and taking possession of the three above-mentioned villages, and also of the four villages (now held) khas (by me), enjoy possession of them rent-free from generation to generation. But you will have to pay to the estate a yearly quit rent of Rs. 100. Beyond this amount 1 will not call upon you to pay any cesses or exactions of any kind whatsoever. These seven villages will in no way appertain to my kingdom.

(2.) IT , is not now disputed, that Kasi Nath and Ram Jibun, two of the four grantees named in the deed, died without issue; and that the Appellants are the living representatives of the other two, viz., Dharmasil and Komolokant Barua. They are still in possession of the three mouzahs of Shamraipara, Maur Ingram, and Kuitpara, which their four ancestors held in 1778, by virtue of farming leases or other tenures, and which were presently assigned to them by the deed; and these mouzahs now yield an f annual return of ?1000 sterling. As might be expected in these circumstances, the Appellants do not allege in their plaint, and they do not now contend, that they have not been already provided with ample means for their support. The case which they present is, that by the terms of the deed each successive rajah was under an obligation, either to maintain them, and that not merely by grants of land, but by employing them on his estate and paying them wages, or to give them the four villages in question; and accordingly, that the conditional grants to descendants became at once operative in their favour, when the late Rajah dismissed Chundi Churn from his service in 1876, and declined to employ either him or any other of the Appellants.

(3.) THE Subordinate judge gave the Appellants decree in terms of their plaint, lie found us matter of fact that the deed was genuine, and he held as matter of law, that the conditional grant to defendants is valid and effectual, and that it became operative whenever the Rajah tailed to support them by giving employment as well as land. On appeal the High Court reversed his decree, and dismissed the suit with costs. The learned judges {Garth, C.J., and Beverley, J.) held that the onus being upon them, the Appellants had not satisfactorily established the authenticity of the deed. Without deciding the point, they expressed grave doubts whether, if genuine, it was enforceable in law; but, on the assumption that it was both genuine and enforceable, they held that the descendants of the four Baruas named in it have, according to the just construction of the instrument, no right to the four mouzahs so long as they are sufficiently maintained from any source whatever provided by the grantor or his successors.