{"id":128341,"date":"1958-09-18T00:00:00","date_gmt":"1958-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/radha-sundar-dutta-vs-mohd-jahadur-rahim-and-others-on-18-september-1958"},"modified":"2015-10-15T15:35:48","modified_gmt":"2015-10-15T10:05:48","slug":"radha-sundar-dutta-vs-mohd-jahadur-rahim-and-others-on-18-september-1958","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/radha-sundar-dutta-vs-mohd-jahadur-rahim-and-others-on-18-september-1958","title":{"rendered":"Radha Sundar Dutta vs Mohd. Jahadur Rahim And Others on 18 September, 1958"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Radha Sundar Dutta vs Mohd. Jahadur Rahim And Others on 18 September, 1958<\/div>\n
Equivalent citations: 1959 AIR 24, \t\t 1959 SCR 1309<\/div>\n
Author: T V Aiyyar<\/div>\n
Bench: Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nRADHA SUNDAR DUTTA\n\n\tVs.\n\nRESPONDENT:\nMOHD.  JAHADUR RAHIM AND OTHERS\n\nDATE OF JUDGMENT:\n18\/09\/1958\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\n\nCITATION:\n 1959 AIR   24\t\t  1959 SCR 1309\n CITATOR INFO :\n R\t    1973 SC2609\t (21)\n\n\nACT:\nGrant-Construction-  Patni  settlement-Chaukidari   Chakaran\nlands-Resumption and transfer to Zamindar-Grant of the lands\nby  the Zamindar on Patni to Person who held the village  in\nPatni settlement-Distinct Patni-Sale of lands for arrears of\nrevenue-Validity-Bengal Patni Taluks Regulation, 1819  (Ben.\nRegulation VIII of 1819), ss. 8, 14-Village Chaukidari\tAct,\n1870 (Ben.  VI of 1870), ss. 48, 50, 51.\n\n\n\nHEADNOTE:\nThe  lands in question are situate in lot Ahiyapur which  is\none of the villages forming part of the permanently  settled\nestate\tof  Burdwan  and had been set  apart  as  Chaukidari\nChakaran  lands to be held by the Chaukidars  for  rendering\nservice\t in  the village as watchmen.  At the  time  of\t the\npermanent  settlement  the income from these lands  was\t not\ntaken into account in fixing the jama payable on the estate.\nSome  time before the enactment of the Bengal  Patni  Taluks\nRegulation, 1819, the entire village of Ahiyapur was granted\nby the then\n1310\nZamindar  of  Burdwan, to the predecessors-in-title  of\t the\ndefendants  on\tPatni  settlement.   In\t 1870  the   Village\nChaukidari  Act\t came  into  force  and\t acting\t under\t the\nprovisions  of\tthat Act the Government put an\tend  to\t the\nservices of the Chaukidars resumed the lands and imposed  an\nassessment  thereon,  and, subject to  it,  transferred\t the\nlands to the Zamindar.\tOn June 3, 899, the Zamindar granted\nthe suit lands on Patni to the predecessors-in-title of\t the\ndefendants  who\t were  the then holders of  the\t village  in\nPatni.\t In  proceedings  taken by the\tZamindar  under\t the\nprovisions of the Bengal Patni Taluks Regulation, 1819,\t the\nsuit  lands  were brought to sale for arrears  of  rent\t and\npurchased  by him.  On February I3, 1941, the Zamindar\tsold\nthe  lands to the appellant who sued to\t recover  possession\nthereof\t from the defendants.  The defendants  resisted\t the\nsuit on the ground, inter alia, that the effect of the grant\nof  the\t Chaukidari Chakaran lands on June 3, 1899,  was  to\nmake  them  part and parcel of the Patni settlement  of\t the\nvillage\t of Ahiyapur and that, in consequence, the  sale  of\nthose lands, apart from the village of Ahiyapur, was bad  as\nbeing a sale of a portion of the Patni.\nHeld, that when the Zamindar made a grant of the  Chaukidari\nChakaran  lands\t which formed part of a\t village  which\t had\npreviously been settled in Patni, it was open to the parties\nto  agree  that those lands should form a new  and  distinct\nPatni  and  the result of such an agreement  would  be\tthat\nwhile  the  grantee would hold those lands in  Patni  right,\nthat  is  to  say,  that  the  tenure  would  be  permanent,\nheritable and alienable, so far as his liability to pay jama\nand the corresponding right of the Zamindar to sell it under\nthe Regulation if there was a default in the payment thereof\nwere  concerned,  the new grant would be a  distinct  Patni,\nindependent of the original Patni.\nHeld, further, that construing the grant dated June 3,\t899,\nas  a  whole,  the intention of\t the  parties  as  expressed\ntherein\t was that the Chaukidari Chakaran lands were  to  be\ntreated as a distinct Patni and that, therefore, the sale of\nthe lands for arrears of rent was valid.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 108 of 1954.
\nAppeal from the judgment and decree dated March 21, 1952, of
\nthe Calcutta High Court in Appeal from Appellate Decree\t No.
\n971  of 1950, arising out of the judgment and  decree  dated
\nAugust\t29, 1950, of the Court of District Judge  of  Zillah
\nBurdwan in Title Appeal No. 247\/16 of 1948 against  judgment
\nand  decree  dated  September  25, 1948,  of  the  Court  of
\nAdditional Sub-Judge, 1st Court, Burdwan, in Title Suit\t No.
\n7 of 1946\/27 of 1947.\n<\/p>\n
1311<\/span><\/p>\n
N.   C. Chatterjee and Sukumar Ghose, for the appellant.
\nJ.   N. Banerjee and P. K. Ghose, for the respondents.
\n1958.\tSeptember  18.\t The  Judgment\tof  the\t Court\t was
\ndelivered by
\nVENKATARAMA  AIYAR  J.-This is an appeal  by  the  plaintiff
\nagainst\t the  judgment of the High Court of  Calcutta  in  a
\nsecond\tappeal\twhich, in reversal of the judgments  of\t the
\nCourts below dismissed his suit, which was one in ejectment.
\nThe  suit property is a Mahal of the extent of 84 Bighas  18
\nCottas situated within lot Ahiyapur village, which is one of
\nthe villages forming part of the permanently settled  estate
\nof  Burdwan  Zamindari.\t  This village was  granted  by\t the
\nMaharaja of Burdwan in Patni settlement to the predecessors-
\nin-title of defendants I to 7. The exact date of this  grant
\ndoes not appear, but it is stated that it was sometime prior
\nto the enactment of the Bengal Patni Taluks Regulation, 1819
\n(Bengal Regulation VIII of 1819), hereinafter referred to as
\nthe  Regulation,  and nothing turns on it.  The\t Mahal\twith
\nwhich this litigation is concerned, had been at or prior  to
\nthe  permanent settlement set apart as\tChaukidari  Chakaran
\nlands;\tthat  is  to  say,  they were  to  be  held  by\t the
\nChaukidars for rendering service in the village as watchmen.
\nIn  1870,  the\tVillage Chaukidari Act, 1870  (Ben.   VI  of
\n1870),\thereinafter referred to as the Act, was passed,\t and
\ns.  48\tof that Act provides that  all\tChaukidari  Chakaran
\nlands  assigned\t for  the benefit of any  village  shall  be
\ntransferred to the zamindar of the estate in the manner\t and
\nsubject\t to the provisions contained in the Act.   Under  s.
\n50,   the   Collector  is  authorized  to  make\t  an   order
\ntransferring  those lands to the Zamindar after\t determining
\nthe assessment payable thereon, and s. 51 enacts that:
\n” Such order shall operate to transfer to such zamindar\t the
\nland  therein mentioned subject to the amount of  assessment
\ntherein mentioned, and subject
\n1312<\/span>
\nto all contracts theretofore made, in respect of, under,  or
\nby  virtue of, which any person other than the zamindar\t may
\nhave  any  right  to any land, portion\tof  his\t estate,  or
\ntenure, in the place in which such land may be situate.\t ”
\nIn  accordance\twith  the  provisions  aforesaid,  the\tsuit
\nproperties were transferred to the Maharaja of Burdwan,\t and
\non  June 3,1899, he granted the same to the predecessors-in-
\ntitle of defendants I to 7, who at that time held the  Patni
\ninterest in respect of lot Ahiyapur.  Under the grant  which
\nhas been marked as exhibit B, the yearly rental for the area
\nwas  fixed at Rs. 126-8 as., out of which Rs. 84-4 as.,\t had
\nto  be paid to the Panchayat within the 7th of\tBaisakh\t for
\nbeing credited to the Chaukidari Fund and the balance of Rs.
\n42-4 as., was to be paid to the Zamindar within the month of
\nChaitra.  Exhibit B also provides that in default of payment
\nof kist the lands are liable to be sold in proceedings taken
\nunder the Bengal Regulation VIII of 1819.  Acting under this
\nclause, the Maharaja applied under s. 8 of the Regulation to
\nbring the suit lands to sale for realisation of arrears, and
\nat  the\t auction held on May 15, 1937,\thimself\t became\t the
\npurchaser.  On February 13, 1941, he granted the lands again
\non Patni to the appellant, who filed the suit, out of  which
\nthe  present appeal arises, in the Court of the\t Subordinate
\nJudge,\tBurdwan,  to  recover possession  thereof  from\t the
\ndefendants  alleging that they had trespassed thereon.\t The
\nrespondents contested the suit on the ground that, in  fact,
\nthere were no arrears of rent due under Exhibit B, and\tthat
\nthe sale was therefore void.\n<\/p>\n
The  Subordinate Judge held that there were arrears of\trent
\ndue  from the respondents, and that further as they had\t not
\nsued  to  set aside the sale under s. 14 of  the  Regulation
\nwithin\tthe time limited by law, they could not set  up\t its
\ninvalidity  as\ta defence to the action in  ejectment.\t The
\ndefendants preferred an appeal against this judgment to\t the
\nDistrict Court of Burdwan, and there raised a new contention
\nthat under the grant, Exhibit B, the suit lands became\tpart
\nof lot Ahiyapur, and that a sale of those lands was
\n1313<\/span>
\nillegal\t as  being a sale of a portion of  the\tPatni.\t The
\nDistrict Judge after observing that the point was taken\t for
\nthe first time, held on a construction of Exhibit B that  it
\ncreated a new Patni, and that it could therefore be  brought
\nto  sale,  and\the also held that s. 14\t of  the  Regulation
\noperated  as  a\t bar  to the  validity\tof  the\t sale  being
\nquestioned  on the ground that the rent claimed was not,  in
\nfact,  due.   He  accordingly  dismissed  the  appeal.\t The
\nrespondents  took  the matter in second appeal to  the\tHigh
\nCourt, and that was heard by a Bench consisting of Das Gupta
\nand Lahiri JJ. who differed from the District Judge both  on
\nthe  construction of Exhibit B and on the bar of  limitation
\nbased on s. 14 of the Regulation.  They held that the effect
\nof  Exhibit  B was merely to make the suit  lands  part\t and
\nparcel\tof the Patni lot Ahiyapur, and that, therefore,\t the
\nsale of those lands only was bad, as being a sale of a\tpart
\nof  the\t Patni.\t They further held that as such a  sale\t was
\nvoid,  s.  14 of the Regulation had  no\t application.\tThey
\naccordingly allowed the appeal, and dismissed the suit.\t  It
\nis  against this judgment that the present appeal  has\tbeen
\nbrought\t on  a certificate granted by the High\tCourt  under
\nArt. 133(1)(a).\n<\/p>\n
Mr.  N. C. Chatterjee for the appellant urged the  following
\ncontentions in support of the appeal: (1) The defendants did
\nnot  raise  either in the written statement  or\t during\t the
\ntrial,\tthe  plea  that\t under the  sanad,  Exhibit  B,\t the
\nChaukidari  Chakaran lands comprised therein became part  of
\nthe  Patni settlement of lot Ahiyapur, and, in\tconsequence,
\ntheir sale was bad as being of a part of the Patni, and\t the
\nlearned\t Judges\t should not have allowed that  point  to  be
\nraised\tin appeal. (2) Exhibit B properly construed must  be
\nheld  to create a new Patni distinct from lot Ahiyapur,\t and
\nits  sale is therefore valid. (3) Assuming that the sale  is
\ninvalid\t as being of a part of a tenure, the only  right  of
\nthe defendants was to sue to have it set aside, as  provided
\nin  s. 14 of the Regulation, and that not having been  done,
\nit  is not open to them to attack it collaterally  in  these
\nproceedings.\n<\/p>\n
We see no substance in the first contention.  It is
\n1314<\/span>
\ntrue  that the defendants did not put forward in  the  trial
\nCourt  the  plea  that\tthe  effect  of\t Exhibit  B  was  to
\nincorporate the suit lands in lot Ahiyapur Patni, and  that,
\nin  consequence, the sale was illegal as being of a part  of
\nthe  Patni.   On  the  other  hand,  the  written  statement
\nproceeds  on  the view that Exhibit B created  a  new  Patni
\nunconnected  with lot Ahiyapur, and the only defence  raised
\non  that  basis was that no arrears of rent were  due  under
\nExhibit B, and that the sale was therefore invalid.  But the
\ntrue  nature of the grant under Exhibit B is a matter to  be
\ndecided on a construction of the terms of the document,\t and
\nthat  is a question of law.  It is argued for the  appellant
\nthat it would be proper in determining the true character of
\nthe  grant under Exhibit B to take into account\t surrounding
\ncircumstances,\tthat to ascertain what\tthose  circumstances
\nare,  it  will be necessary to take evidence, and  that,  in
\nconsequence, a question of that kind could not be  permitted
\nto  be\tagitated for the first time in appeal.\t But  it  is
\nwell-settled that no evidence is admissible on a question of
\nconstruction  of  a contract or grant, which must  be  based
\nsolely\ton  the\t terms\tof  the\t document,  there  being  no
\nsuggestion before us that there is any dispute as to how the
\ncontents  of  the document are related\tto  existing  facts.
\nVide Balkishen Das v. Legge (1) and Maung Kyin v. Ma Shwe La
\n(2).   It  should,  moreover, be  mentioned  that  when\t the
\ndefendants  sought to raise this contention in their  appeal
\nin  the\t District  Court,  no objection\t was  taken  by\t the
\nplaintiff  thereto.   Under the circumstances,\tthe  learned
\nJudges were right in allowing this point to be taken.\tThis
\ncontention must therefore be rejected.\n<\/p>\n
The next point for determination is as to the true character
\nof  the grant under Exhibit B, whether it amounts to  a\t new
\nPatni  with  reference to the Chaukidari Chakaran  lands  as
\ncontended  for by the appellant, or whether it\tincorporates
\nthose lands in the Patni of lot Ahiyapur, so as to make them
\npart  and  parcel  of the lands\t comprised  therein,  as  is
\nmaintained by the respondents.\tTo appreciate the
\n(1) (1899) L.R. 27 I.A. 58, 65.\n<\/p>\n
(2) (1917) L.R- 44 I.A. 236, 243.\n<\/p>\n
1315<\/span><\/p>\n
true position, it is necessary to examine what the rights of
\nthe  Zamindar  and  of the Patnidar  were  with\t respect  to
\nChaukidari Chakardan lands at the time of the grant, Exhibit
\nB. These lands had been originally set apart as remuneration
\nfor the performance of services by the village chaukidars as
\nwatchmen,  and for that reason when the village was  granted
\nto   the  Zamindar  in\tpermanent  settlement,\tthe   income
\ntherefrom  was\tnot taken into account in  fixing  the\tjama
\npayable\t by  him,  though  they\t passed\t to  him  under\t the
\npermanent settlement.  Then came the Village Chaukidari Act,
\nand under that Act the Government put an end to the services
\nof the Chaukidars as village watchmen, resumed the lands and
\nimposed assessment thereon, and, subject to it,\t transferred
\nthem  to  the Zamindar; and where the Zamindar\thad  already
\nparted with the village in which the lands were situate,  by
\ngranting Patni, it became necessary to define the rights  of
\nthe Zamindar and the Patnidar with reference to those lands.
\nDealing with this matter, s. 51 of the Act provides that the
\ntitle  of  the Zamindar on resumption and  transfer  by\t the
\nGovernment  shall be subject to ” all contracts\t theretofore
\nmade  “. Under this section, the Patnidar would be  entitled
\nto  the Chaukidari Chakaran lands in the same right  and  on
\nthe  same terms on which lie held the village in which\tthey
\nare situate.  The nature of this right has been the  subject
\nof consideration in numerous authorities, and the law on the
\nsubject is well-settled.  In Ranjit Singh v. Maharaj Bahadur
\nSingh (1), it was held by the Privy Council that though\t the
\nreservation under s. 51 is of rights under contracts made by
\nthe  Zamindar  and the word ” contract ” primarily  means  a
\ntransaction  which  creates personal obligations,  it  might
\nalso  refer  to transactions which create real\trights,\t and
\nthat  it was in that sense the word was used in s.  51,\t and
\nthat  accordingly the Patnidar was entitled to\tinstitute  a
\nsuit against the Zamindar for possession of those lands\t and
\nwas not obliged to suit for specific performance.  But\tthis
\ndoes not mean that the Patnidar is
\n(1) (1918) L.R. 45 I.A. 162.\n<\/p>\n
167<\/span>
\n1316<\/span><\/p>\n
entitled  to hold the lands free of all obligations.  He  is
\nunder a liability to pay to the Zamindar the assessment\t due
\nthereon,  when it is fixed under s. 50, and also a share  of
\nprofits.  Vide Bhupendra Narayan Singh v. Narapat Singh (1),
\nwhere it was held by the Privy Council that when  Chaukidari
\nChakaran  lands\t included  in a Patni  settlement  had\tbeen
\nresumed\t and transferred to the Zamindar under s. 51 of\t the
\nAct,  he is entitled to the payment of a fair and  equitable
\nrent in respect thereof, and that the fixing of the rent  is
\na  condition to the Patnidar being put in possession.\tVide
\nalso  Rajendra Nath Mukherjee v. Hiralal Mukherjee  (2)\t and
\nGopendra Chandra v. Taraprasanna (3).\n<\/p>\n
These  being the rights and obligations of the Zamindar\t and
\nthe  Patnidar  under  s.  51 of the  Act,  a  grant  of\t the
\nChaukidari  Chakaran  lands  by the  former  to\t the  latter
\nserves,\t in  fact,  two purposes.  It  recognises  that\t the
\ngrantee\t is  entitled to hold those lands by virtue  of\t his
\ntitle  as Patnidar of the village of which they\t form  part,
\nand  it\t fixes\tthe  amount payable by\thim  on\t account  of
\nassessment  and share of profits.  The question then  arises
\nas to what the exact relationship is in which the new  grant
\nstands to the original Patni grant.  Now, when s. 51 of\t the
\nAct  recognises\t and saves rights which\t had  been  acquired
\nunder contract with the Zamindar, its reasonable implication
\nis  that the rights so recognised are the same as under\t the
\ncontract,  and that, in consequence, the settlement  of\t the
\nChaukidari  Chakaran  lands in Patni must be taken to  be  a
\ncontinuance  of the Patni of the village in which  they\t are
\nincluded.   But it is open to the parties to agree that\t the
\nChaukidari  Chakaran  lands should form a new  and  distinct
\nPatni,\tand  the result of such an agreement  will  be\tthat
\nwhile the grantee will hold those lands in Patni right, that
\nis  to\tsay,  the tenure will be  permanent,  heritable\t and
\nalienable  so  far  as his liability to\t pay  jama  and\t the
\ncorresponding  right  of the Zamindar to sell it  under\t the
\nRegulation if there is any default in the
\n(1) (1925) L.R. 52 I.A. 355.  (2) (1906) 14 C.W.N. 995.
\n(3) (1910) I.L.R. 37 Cal. 598.\n<\/p>\n
1317<\/span><\/p>\n
payment\t thereof  are concerned, the now grant\twill  be  an
\nentity\tby itself independent of the original  Patni.\tThat
\nthat could be done by agreement of parties is  well-settled,
\nand  is\t not  disputed\tbefore us.   If\t that  is  the\ttrue
\nposition,  then the real question to be considered is,\twhat
\nis the agreement of parties with reference to the Chaukidari
\nChakaran  lands,  whether they are to be constituted  as  an
\nindependent  Patni  or whether they should be treated  as  a
\ncontinuation of the original Patni or an accretion  thereto,
\nand the answer to it must depend on the interpretation to be
\nput on the grant.\n<\/p>\n
It  is\tnow  necessary to refer to  the\t material  terms  of
\nExhibit\t B  under which the Chaukidari Chakaran\t lands\twere
\ngranted to the predecessors of respondents I to 7. It begins
\nby  stating  that  the Patnidars of  lot  Ahiyapur  appeared
\nbefore the Zamindar and ,prayed for taking Patni  settlement
\nof  the said 84 Bighas 18 Cottas of land at a yearly  rental
\nof Rs. 126\/8 as.”, and then provides how the amount is to be
\npaid.\tThen  there  is\t the  following\t clause,  which\t  is
\nimportant:\n<\/p>\n
“You  will pay the rent etc., Kist after Kist  according  to
\nthe Kistbandi in accordance with law, and if you do not\t pay
\nthe same, I will realise the arrears together with  interest
\nand  costs  by\tcausing the aforesaid lands to\tbe  sold  by
\nauction by instituting proceedings under Regulation VIII  of
\n1819  and  other laws which are in force or will  come\tinto
\nforce……”\n<\/p>\n
Then  follow  provisions  relating to the  transfer  by\t the
\nPatnidars  of  ”  the  aforesaid  lands\t “,  succession\t  by
\ninheritance  or by will to ” the aforesaid lands ”  and\t the
\nregistration  of the name of the transferee or successor  in
\nthe  Sherista, and it is expressly stated that “so  long  as
\nthe  name  of  the  new Patnidar  is  not  recorded  in\t the
\nSherista, the former Patnidar whose name is recorded in\t the
\nSherista  will remain liable for the rent, and on a sale  of
\nthe  Mahal by auction on institution of proceedings  against
\nhim under Regulation VIII of 1819 or any other law that will
\nbe in force for realisation of arrears of rent, no objection
\nthereto on the Part of the new Patnidar can be entertained.”\n<\/p>\n
1318<\/span><\/p>\n
Then ,there are two clause on which on the respondents rely,
\nand they are in these terms:\n<\/p>\n
” If in future it transpires that any other persons  besides
\nyourselves  have Patni rights in the Patni interest of\tthe,
\nsaid  lot Ahiyapur, such persons shall have Patni rights  in
\nthese Chakaran lands also to the same extent and in the same
\nmanner as they will be found to have interests in the  Patni
\nof the aforesaid lot, and if for the said reason any  person
\nputs  forward any claim against the Raj Estate and  the\t Raj
\nEstate\thas to suffer any loss therefor, you will make\tgood
\nthe  said claim and the loss without any objection.   If  in
\nfuture\tthe  Patni  interest in the  said  lot\tAhiyapur  be
\ntransferred for liability for arrears of rent or if the same
\ncomes to an end for any reason, then your Patni interest  in
\nthese  Chakaran lands also will be transferred or will\tcome
\nto an end alongwith the original Patni ,simultaneously.”
\nIt  is on these two clauses that the learned Judges  in\t the
\nCourt below have based their decision that the intention  of
\nthe  par-ties  was to treat the suit lands as  part  of\t the
\nPatni of lot Ahiyapur.\tNow, it cannot be disputed that\t the
\ntwo  clauses  aforesaid afford considerable support  to\t the
\nconclusion to which the learned Judges have come.  The first
\nclause provides that if besides the grantee under Exhibit  B
\nthere  were  other persons entitled to Patni rights  in\t lot
\nAhiyapur,  those  persons also shall have  Patni  rights  in
\nChaukidari  Chakaran  lands to the same extent as  in  Patni
\nAhiyapur.   That clearly means that the rights conferred  on
\nthe  grantees under Exhibit B have their roots in the  Patni
\nlot of Ahiyapur.  Likewise, the provision in the last clause
\nthat  the grantees will lose their rights to the  Chaukidari
\nChakaran lands if their interest in Ahiyapur Patni was\tsold
\nclearly suggests that the grant under Exhibit B is to be  an
\nannexe to the grant of Ahiyapur.\n<\/p>\n
As against this, the appellant argues that the other clauses
\nin  Exhibit B quoted above strongly support his\t contention,
\nand  that  when\t the  document\tis  read  as  a\t whole,\t  it
\nunmistakably reveals an intention to treat the suit lands as
\na distinct Patni.  We must now
\n1319<\/span>
\nrefer  to these clauses.  Exhibit B begins by reciting\tthat
\nthe grantees desired to take a Patni settlement of 84 Bighas
\n18 Cottas, which is some indication, though not very strong,
\nthat  it is to be held as a distinct entity.  We  have\tthen
\nthe clause which provides that when there is default in\t the
\npayment\t of  kist,  the\t lands are  liable  to\tbe  sold  in
\nproceedings  instituted under the Regulation.  Now, the\t law
\nhad long been settled that a sale of a portion of a Patni is
\nbad, but that if by agreement of all the parties  interested
\ndifferent portions thereof are held under different  sadads,
\nwhich provide for sale of those portions for default in pay-
\nment  of  kist payable respectively thereon,  then  each  of
\nthose sanads might be held to have created a separate  Patni
\nin  respect of the portion comprised therein.  Vide  Mohadeb
\nMundul v. Mr. H. Cowell(1) and Monomothonath Dev and another
\nv.  Mr. G. Glascott (2).  When, therefore, the Zamindar\t and
\nthe Patnidar agreed under Exhibit B that the lands comprised
\ntherein\t could be sold under the Regulation when  there\t was
\ndefault in payment of kist fixed therefor, they must clearly
\nhave intended that those lands should be constituted into  a
\ndistinct  Patni.  Otherwise, the clause will be\t inoperative
\nand void, and indeed, the learned Judges in the Court  below
\nhave, on that ground, declined to give any effect to it.
\nNow, it is a settled rule of interpretation that if there be
\nadmissible  two\t constructions of a document, one  of  which
\nwill give effect to all the clauses therein while the  other
\nwill  render one or more of them nugatory, it is the  former
\nthat  should  be adopted on the principle expressed  in\t the
\nmaxim  ” ut res magis valeat quam per-eat “. What has to  be
\nconsidered  therefore  is  whether it is  possible  to\tgive
\neffect\tto  the\t clause in question, which can\tonly  be  by
\nconstruing  Exhibit B as creating a separate Patni,  and  at
\nthe  same  time\t reconcile the last two\t clauses  with\tthat
\nconstruction.\tTaking first the provision that if there  be
\nother persons entitled to the Patni of lot Ahiyapur they are
\nto have the same rights in the land comprised in Exhibit B,
\n(2)  (1873) 20 Weekly Reporter 275.\n<\/p>\n
1320<\/span><\/p>\n
that no doubt posits the continuance in those persons of the
\ntitle  under  the original Patni.  But the true\t purpose  of
\nthis  clause is, in our opinion, not so much to declare\t the
\nrights\tof  those  other persons  which\t rest  on  statutory
\nrecognition,  but  to provide that the grantees\t tinder\t the
\ndocument should take subject to those rights.  That that  is
\nthe  purpose of the clause is clear from the  provision\t for
\nindemnity  which is contained therein.\tMoreover, if  on  an
\ninterpretation\tof  the\t other clauses\tin  the\t grant,\t the
\ncorrect conclusion to come to is that it creates a new Patni
\nin favour of the grantees thereunder, it is difficult to see
\nhow the reservation of the rights of the other Patnidars  of
\nlot Ahiyapur, should such there be, affects that conclusion.
\nWe   are  unable  to  see  anything  in\t the  clause   under
\ndiscussion,  which  militates against  the  conclusion\tthat
\nExhibit B creates a new Patni.\n<\/p>\n
Then there is the clause as to the cesser of interest of the
\ngrantees  in the Chaukidari Chakaran lands when their  title
\nto  lot\t Ahiyapur  comes to an end,  and  according  to\t the
\nrespondents, this shows that under Exhibit B the  Chaukidari
\nChakaran  lands\t are  treated  as part\tand  parcel  of\t the
\nAhiyapur  Patni.   If that were so, a sale of  lot  Ahiyapur
\nmust carry with it the Chaukidari Chakaran lands, they being
\nex hypothesi, part and parcel thereof, and there was no need
\nfor  a\tprovision such is is made in the last  clause.\t But
\nthat  clause would serve a real purpose if the\tPatni  under
\nExhibit\t B  is\tconstrued  as  separate\t from  that  of\t lot
\nAhiyapur.   In\tthat  view,  when the  major  Patni  of\t lot
\nAhiyapur is sold, the intention obviously is that the  minor
\nPatni  under  Exhibit  B,  should  not\tstand  out  but\t  be
\nextinguished,-a\t result\t which could be achieved only  by  a
\nspecial\t provision.  We should finally refer to the  clauses
\nin Exhibit B providing for transfer of or succession to\t the
\nChaukidari  Chakaran lands and for the recognition  of\tsuch
\ntransferee or successor as a Patnidar of those lands.  It is
\nclear  from  these  provision,s that such  a  transferee  or
\nsuccessor is to hold the lands as a Patnidar, different from
\nthe  Patnidar of lot Ahiyapur.\tReading these clauses  along
\nwith  the last clause, it seems clear that the intention  of
\nthe parties
\n1321<\/span>
\nwas  that  while a transfer of the Ahiyapur  Patni  by\tsale
\nshould extinguish the title of the holders of the Chaukidari
\nChakaran  lands\t a  transfer of these lands  would  have  no
\neffect\ton the title to the lot Ahiyapur Patni.\t  Construing
\nExhibit B, as a whole, we are of opinion that the  intention
\nof the parties as expressed therein was that the  Chaukidari
\nChakaran lands should be held as a distinct Patni.
\nWe  must  now  refer to the decision on\t which\tthe  learned
\nJudges\tin the Court below have relied in support  of  their
\nconclusion.   In Kanchan Barani Debi v. Umesh  Chandra\t(1),
\nthe  facts were that the Maharaja of Burdwan had  created  a
\nPatni  of lot Kooly in 1820.  The Chaukidari Chakaran  lands
\nsituated within that village were resumed under the Act\t and
\ntransferred to the Zamindar who granted them in 1899 to\t one
\nSyamlal\t Chatterjee  in Patni on terms similar to  those  in
\nExhibit\t B. In 1914 the Patni lot Kooly was sold  under\t the
\nRegulation,  and  purchased by Sint.  Kanchan  Barani  Debi.
\nShe then sued as such purchaser to recover possession of the
\nChaukidari  Chakaran lands.  The defendants who\t represented
\nthe grantees under the Patni settlement of 1899 resisted the
\nsuit  on  the ground that the sale of Patni  Kooly  did\t not
\noperate to vest in the purchaser the title in the Chaukidari
\nChakaran  lands, as they formed a distinct  Patni.   Dealing
\nwith  this  contention,\t B. B. Ghose J.\t who  delivered\t the
\njudgment of the Court, observed :\n<\/p>\n
concerned  to alter the terms of the original patni if\tthey
\nchose to do so; and what we have to see is whether that\t was
\ndone.  In order to do that, we have to examine the terms  of
\nthe  pattah  by\t which the Chaukidari  Chakaran\t lands\twere
\ngranted to Syamlal Chatterjee.”\n<\/p>\n
The  learned  Judge  then refers to  the  two  clauses\tcor-
\nresponding  to the last two clauses in Exhibit B, and  comes
\nto  the conclusion that their effect was merely to,  restore
\nthe position as it was when the original Patni was  created,
\nand that, in consequence, the purchaser was entitled to\t the
\nPatni as it was created in 1820,
\n(1)  A.I.R. 1925 Cal. 807,
\n1322<\/span>
\nand that the plaintiff was entitled to the possession of the
\nChaukidari Chakaran lands as being part of the Patni.\tNow,
\nit  is to be observed that in deciding that  the  Chaukidari
\nChakaran  lands granted in 1899 became merged is lot  Kooly,
\nas  it was in 1820, the learned Judge did not  consider\t the
\neffect of the clause providing for sale of those lands as  a
\ndistinct entity under the provisions of the Regulation\twhen
\nthere  was  default in the payment of  ret  payable  thereon
\nunder the deed, and that, in our opinion, deprives the deci-
\nsion of much of its value.  In the result, we are unable  to
\nhold  that the two clauses on which the learned Judges\tbase
\ntheir  conclusion are really inconsistent with\tthe  earlier
\nclauses which support the view that the grant under  Exhibit
\nB  is of a distinct Patni.  Nor do we agree with  them\tthat
\nthe earlier clause providing for the sale of the  Chaukidari
\nChakaran lands in default of the payment of jama, should  be
\nconstrued  so as not to override the later clauses.  If,  in
\nfact, there is a conflict between the earlier clause and the
\nlater  clauses and it is not possible to give effect to\t all
\nof  them, then the rule of construction is  well-established
\nthat  it is the earlier clause that must override the  later
\nclauses\t and  not vice versa.  In Forbes v.  Git  (1),\tLord
\nWrenbury stated the rule in the following terms :
\n”  If  in a deed an earlier clause is followed\tby  a  later
\nclause\twhich destroys altogether the obligation created  by
\nthe  earlier clause, the later clause is to be\trejected  as
\nrepugnant and the earlier clause prevails.  In this case the
\ntwo  clauses cannot be reconciled and the earlier  provision
\nin the deed prevails over the later.”\n<\/p>\n
We  accordingly hold that Exhibit B created a new Patni\t and
\nthat  the sale of the lands comprised therein is not bad  as
\nof a portion of a, Patni.\n<\/p>\n
We  are\t conscious that we are differing  from\tthe  learned
\nJudges of the Court below on a question relating to a  local
\ntenure\ton which their opinion is, by reason of the  special
\nknowledge and experience which they have of it, entitled  to
\nthe  greatest weight.  It is also true that the decision  in
\nKanchan Barani Debi v.\n<\/p>\n
(1)  [1922] 1 A.C. 256,259.\n<\/p>\n
1323<\/span><\/p>\n
Umesh.\t Chandra (1) has stood now for over  three  decades,
\nthough it is pertinent to add that its correctness does\t not
\nappear\tto have come up for consideration in any  subsequent
\ndecision   of  the  Calcutta  High  Court,  prior  to\tthis
\nlitigation.   But then, the question is one of\tconstruction
\nof a deed, and our decision that the effect of an  agreement
\nof  the kind in Exhibit B was to constitute  the  Chaukidari
\nChakaran lands into a distinct Patni will not result in\t any
\ninjustice to the parties.  On the other hand, the rule\tthat
\na  portion of a Patni should not be sold being one  intended
\nfor the benefit of the Patnidars, there is no reason why  an
\nagreement entered into by them with the Zamindars  providing
\nfor the sale of a portion, thereof-which is really to  their
\nadvantage, should not be given effect to.  Having  anxiously
\nconsidered  the matter, we have come to the conclusion\tthat
\nExhibit B creates a distinct Patni, that the sale thereof on
\nMay 15, 1937, is valid, and that the plaintiff has therefore
\nacquired  a  good title to the suit lands  under  the  grant
\ndated February 13, 1941.  In this view, it is unnecessary to
\nexpress\t any  opinion on the point that was the\t subject  of
\nconsiderable argument before us as to whether it is open  to
\nthe  defendants to raise the invalidity of the sale held  on
\nMay  15,  1937, in answer to this action,  they\t not  having
\ntaken  steps to have set it aside, as provided in s.  14  of
\nthe Regulation.\n<\/p>\n
In  the result, the appeal is allowed, the judgment  of\t the
\nlower  Court  reversed\tand  that  of  the  District   Judge
\nrestored, with costs throughout.\n<\/p>\n
Appeal allowed.\n<\/p>\n
(1) A.I.R. 1925 Cal. 807.\n<\/p>\n
168<\/span>
\n1324<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Radha Sundar Dutta vs Mohd. Jahadur Rahim And Others on 18 September, 1958 Equivalent citations: 1959 AIR 24, 1959 SCR 1309 Author: T V Aiyyar Bench: Aiyyar, T.L. Venkatarama PETITIONER: RADHA SUNDAR DUTTA Vs. RESPONDENT: MOHD. JAHADUR RAHIM AND OTHERS DATE OF JUDGMENT: 18\/09\/1958 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-128341","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nRadha Sundar Dutta vs Mohd. 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