1867. BABOO DHUNPUT SINGH v. GOOMAN that of Freeman v. Fairlie is any authority for such Again, neither the date nor the nature of the transaction is, on the whole, in favour of the hypothesis that the intention of the Grantor was to create a perpetual tenure at a fixed rent. It may be conceded to the Respondents that the Zemindar in 1791 may have deemed himself capable of granting such a tenure. For, though according to the preamble of Ben. Reg. XLIV., of 1791, Zemindars, before the Perpetual Settlement, had no power to enter into engagements for a period exceeding that of their own engagement with Government, and in 1792 the Decennial Settlement, which had just been completed, had not been declared perpetual, yet at that time there was every reason to believe that the settlement would be declared perpetual; and the second section of the Regulation last referred to, which restricts the Zemindar's power of disposition, had not been enacted. The whole policy, however, of the Decennial Settlement, as appears by Regulation VIII. of 1793, was adverse to Mocurrury tenures. It made them all subject to re-assessment, unless they fell within the protection of the 49th section of that Regulation. It is, therefore, not probable that the Zemindar would, immediately after the completion of the settlement, grant such a tenure, except upon special grounds and adequate consideration; and of these there is no proof. Though the Pottah contains some reference to future services, as incidental to the If, on the one hand, it is improbable that the case. The Appellant, as we have already remarked, is not, as was the Plaintiff in the case of Baboo Gopal Lall Thakoor v. Teluck Chunder Rai (10 Moore's Ind. App. Cases, 183), which was cited in the argument, an auction Purchaser, who, under the Revenue laws, can throw upon the Tenant the burden of showing that his tenure would have been valid against a Zemindar, unfettered by any personal engagement, at the time of the Perpetual Settlement. He is bound by the engagements and acts of his predecessors in the Zemindary; and we must consider the evidence. of these as it bears first upon the duration of the tenure, and next upon the question of fixed or variable rent. And, in doing this, we must recollect that, after the passing of Regulation V. of 1812, there was no restriction upon the disposing power of the Zemindar. The facts already stated, afford incontestable proof that ever since the death of Aghum Singh, the here VOL. XI. I I 1867. BABOO DHUNPUT SINGH v. GOOMAN SINGH. 1867. BABOO DHUNPUT SINGH v. GOOMAN ditary character of this sub-tenure has been recognized by the successive Zemindars. There is also evidence, which is not contradicted, that some of them have recognized its transferable nature. This evidence affords ample grounds for inferring either that the tenure was always intended to be hereditary, although not so expressed in the Pottah, or that, if the original grant were limited, as was suggested, to the life of Aghum Singh, his tenure has by some subsequent grant become hereditary and transferable. And, upon the proof here given of long and uninterrupted enjoyment, accompanied by the recognition of its hereditary and transferable character, it is almost impossible to suppose that a suit by the Zemindar in the Civil Court to disturb the possession of the Respondent, could not be successfully resisted. The case of Joba Singh v. Meer Nujeeb Oollah (4 Ben. Sud. Dew. Ad. Rep. 271) is an authority for the proposition, that evidence of this kind will supply the want of the words "from generation to generation" in the Pottah, which is the foundation of such a title. Upon this second point, the evidence of the subsequent acts and conduct of the Zemindars is material only in so far as the receipts and proceedings above referred to show that both Aghum Singh and his successors were described as Mocurrereedars. Their Lordships are not prepared to say that, from this evidence, a Court or jury might not legitimately infer, as against the first Zemindar and his successors, either that the rent had been always fixed, or that by subsequent contract, that, which had been originally variable had been made invariable. It is not, however, necessary for the determination of this appeal that they should so decide; and they are unwilling, without necessity, to draw from the facts proved conclusions which were not drawn by the Court below. It is sufficient to say, that if the tenure was or has become hereditary and transferable, as stated above, and if, as is abundantly shown, the rent has not been changed from the time of the Perpetual Settlement, the case, as ruled by the High Court, falls within the protection of the 15th section of Act, No. X. of 1859. Whatever be the interpretation to be given to the somewhat loose and ambiguous expression, "a terminable lease," it is clear that a tenure under which the Tenant can no longer be dispossessed by his superior cannot be brought within that exception. There is another ground upon which, though it does not seem to have occurred to the Court below, their Lordships cannot but think that the present suit ought to have been dismissed. It has been seen that the Respondents were sued as occupying Ryots, liable for the rent assessed upon them in that character; that the High Court held that, considered as Ryots, they were protected by the 3rd and 4th sections of the Act, No. X. of 1859, and that thereupon the Appellant, shifting his ground and treating the Respondents not as Ryots, but as Tenants intermediate between him and the Ryots, obtained an Order for review. But if the Respondents were Tenants intermediate between the Proprietor and the Ryot, that fact seems to raise objections both of form and of substance fatal to the maintenance of the present suit. The notice on which it was founded did not in that case accurately specify "the ground on which enhancement of rent was desired;" and the assessment on which the sum sued for was calculated, was improperly made: 1867. BABOO DHUNPUT SINGH v. GOOMAN SINGH. 1867. BABOO DHUNPUT SINGH V. GOOMAN the case of Dyaram v. Bhobindur Naruen (1 Ben. Sud. Dew. Ad. Rep., 139), and the note of Sir William Macnaghten at the foot of it, p. 140, show that, where the suit is against an intermediate Tenant, the enhancement ought to be made according to the Pergunnah rate of the rents payable, not by Ryots, but by the holders of similar tenures. To assess such an intermediate Tenant according to the rents paid by Ryots, must necessarily deprive him of all beneficial interest in his tenure. Their Lordships, however, do not decide this case on this last ground. For the reasons above stated, they think that the decision of the High Court was substantially right, and they will humbly recommend Her Majesty to dismiss this appeal with costs. 1867. THAKOORANEE RUTTA } Respondents* KOER, and others On appeal from the Sudder Dewanny Adawlut, 2nd Dec., THE suit in which this appeal arose, was brought by the Appellant against the Respondents in the Civil Court of the Principal Sudder Ameen of To entitle a female disqualified landholder, whose estate is in charge of the Court of Wards, to take advantage, by way of defence *Present Members of the Judicial Committee-The Right Hon. Sir James W. Colvile, the Right Hon. Sir Edward Vaughan Williams, the Right Hon. Sir Richard Torin Kindersley, and the Right Hon. the Lord Justice Rolt. Assessor:-The Right Hon. Sir Lawrence Peel. to an action brought against her, of the provisions of Ben. Reg., LII. of 1803, in respect of her non-liability for Bond debts contracted by her, the course pointed out in that Regulation must be strictly followed. |