Judgement

Appeal (No. 13 of 1939) from a judgment and decree of the High Court (May 19, 1937) which had affirmed a judgment and decree of the Court of the Additional District Judge, 24-Parganas (July 30, 1934).

The questions in this appeal were whether one Krishna Kanta Nandy, an ancestor of the first defendant (the appellant Maharaja Sris Chandra Nandy), who in about 1778 founded the Kasimbazar Raj, established two idols in the house at Shrikhanda of an ancestor of the plaintiffs (respondents) who was the guru (spiritual guide) of the former ; whether an annual payment of Rs. 4000 admittedly paid out of the funds of the Raj by half-yearly instalments by the original founder of the Raj and continuously from generation to generation since then to the ancestors of, and also to, the

Law. Rep. 68 Ind. App. 34 ( 1940- 1941) Maharaja Sris C handra Nandy V. Rakhalananda Thakur

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plaintiffs, for the sheba and puja (service and worship) of the idols, was paid as voluntary charity or as a britti (stipend) creating a right to its continuance ; and whether the annuity in fact constituted a charge upon the general property of the Raj, and whether such charge, if constituted, was bad in law by reason either of its being perpetual, or being upon the general and not any specified property of the Raj.

The facts appear from the judgment of the Judicial Committee.

The plaintiffs claimed in the suit (inter alia) (a) a decree against the estate and the appellant Maharaja as manager thereof for Rs. 13,260, representing arrears of the annual britti of Rs. 4000 for three years from March, 1928, to October, 1930, plus interest thereon at six per cent, per annum ; (b) a declaration that they were entitled to continue to receive the annual britti; and (c) a declaration that the britti was a charge upon the Raj estate.

It was pleaded by way of defence (inter alia) that the annual payment of Rs. 4000 was given as charity and not paid as britti (stipend) with a right of continuance ; and it was denied that the payment in fact constituted a charge on the properties of the Raj estate. The second appellant was the manager of the Wards Estate of Kasimbazar, the management of the estate having been taken over by the Court of Wards in 1929.

The trial court and, on appeal, the High Court (S. N. Guha and R. C. Mitter JJ.) gave judgment in favour of the plaintiffs. The High Court, who relied on the evidence of some of the plaintiffs witnesses speaking of a tradition in their family that Krishna Kanta Nandy had established the two deities, had granted the britti in perpetuity, and had made it a charge upon the estate, said in the course of their judgment that "It is to be noticed in this connection that s. 2, sub-s. 1, of the " Indian Evidence Act repeals the whole of the English common "law on evidence so far as it was in force in British India "before the passing of the Indian Evidence Act, and that "provision of the law in effect prohibits the employment of "any kind of evidence not specifically authorised by the Act "itself. It must be recognised, however, that the principle "of exclusion adopted by the Indian Evidence Act should not "be applied so as to exclude matters which may be essential "for the ascertainment of truth."

1940. Sept. 17, 19. J. M. Tucker K.C. and W. Wallach for the appellants. Up to February, 1929, the Kasimbazar Raj Estate was held by the then landlord, but in that year the management was taken over by the Court of Wards on the application of the then owner, the father of the appellant and present ward. From the foundation of the family, in 1778, to February, 1929, the family had been in the habit of paying the sum of Rs. 4000 annually in two instalments, the payment being said to be by way of britti. [Reference was made to the definition of" Brit " in Wilsons Glossary of Indian Terms and to p. 107 of Forbes Hindustani Dictionary.] The last payment was made in 1928. [With regard to the history of the appellants family, and the attainment