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1876 Supreme(SC) 4
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
SIR JAMES W. COLVILE, SIR BARNES PEACOCK, SIR MONTAGUE E. SMITH, AND SIR ROBERT
RANEE SONET KOWAR - Appellant
Versus
MIRZA HIMMUT BAHADOOR, MUSSUMAT BISMULLAH BEGUM (ALIAS NUNHOO SAHIBA), AND MUSSUMAT SAHIBZA-DEE BEGUM - Respondents
On Appeal From The High Court at Bengal.
Decided On : February, 11, 1876.
Agent for Appellant: T. L. Wilson.
Agents for Respondent: Barrow & Barton.
Upon the failure of heirs of a grantee of an absolute and alienable mokurreree tenure, the property escheats to the Crown rather than reverting to the original grantor (zemindar), as English feudal laws of reversion to a superior lord are inapplicable to Hindu zemindars.
Headnote:(A) Mokurreree Tenure - Grant "from generation to generation" - Such terms in a grant create an absolute and hereditary tenure, treated as an absolute interest and alienable. (Paras 1, 11)
(B) Escheat and Reversion - Failure of heirs - Where a tenure is carved out of a larger estate and the last possessor dies without heirs, the property does not revert to the original grantor or the superior landlord. The general right of the Crown to take by escheat the land of a subject dying without heirs prevails. (Paras 15, 18, 20)
(C) Application of Law - English feudal law - Principles of English feudal law regarding escheat to a superior lord are inapplicable to a Hindu zemindar. (Para 20)
Facts of the case:
A zemindar granted a mokurreree pottah in perpetuity to his daughter. The grantee died childless before the grantor. After the grantee's death, the grantor and subsequently his heirs continued to receive the reserved rent from the parties in possession. The heir of the grantor later sued to recover possession, contending that upon the failure of the grantee's heirs, the tenure merged back into the original estate or reverted to the grantor.
Findings of Court:
The grant created an absolute and hereditary tenure. The reception of rent from the parties in possession after the grantee's death indicated a recognition of their interest, preventing them from being treated as mere trespassers. However, the superior title to the land, in the event of a failure of heirs, rests with the Crown and not with the zemindar or his representatives.
Issues: Whether, upon the death of a grantee of a perpetual mokurreree tenure without heirs, the right to possession reverts to the original grantor (zemindar) or escheats to the Crown.
Ratio Decidendi: The court held that a mokurreree tenure is an absolute and alienable interest. Since English feudal law is inapplicable to Hindu zemindars, there is no authority to attribute the power of taking by escheat to the zemindar. Consequently, the general prerogative of the Crown to take land by escheat upon the failure of heirs prevails over any claim of reversion by the superior landlord.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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land tenure
- mokurreree tenure
- escheat
- inheritance and succession
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land tenure
Judgement
RAJAH MODENERAIN SINGH was the proprietor of the whole of mouzah Tranpore, belonging to the zemindary of Tikaree. He had two Hindu Ranees, the Appellant and Ranee Armedh, who, on his death, divided his estate into shares of 8 1/2 annas to Armedh, and 7 1/2 annas to the Appellant. He had no children by either of his Ranees.
By a Mahomedan concubine of the Sheeah sect, named Burratee Begum, he had a daughter named Shurfoonnissa, and other children. Six days after the birth of Shurfoonnissa, on the 8th of Magh, 1248 (January, 1841) the Rajah executed a mokurreree pottah of the said mouzah in favour of his said illegitimate daughter, reserving to himself a certain rent-charge out of the same. The grant was in these terms—
77 Law. Rep. 3 Ind. App. 92 ( 1875- 1876) Ranee Sonet Kowar V. Mirza Himmut Bahadoor
178
" Whereas the mouzah aforesaid original with dependency on a uniform annual jumna of Rs.301 sicca from 1248 Fuslee, with the malwajhat all kinds of grain, the fisheries, forests, tanks, fountains, ponds, the khod kosht lands, the barren and productive trees, and all the appurtenances thereto, excepting the zemindary salamee (presents) the Bishen Barab, Sheopereet, Neyaz Durgah (torn in the original) lands, the abkaree, palm-juice go-downs the cost of embankment assistance for the construction of houses and brick built and mud wells, the village expenses being all borne by the mokurrereedar in all without any objection. Condition as to calamities has been granted as a mokurreree lease from generation to generation. It is required that considering yourself the fixed mokurrereedar of the mouzah aforesaid, you shall make proper cultivation and regularly pay the mokurreree rent year after year, crop after crop, and installment after installment into my treasury. The gain or loss shall be yours. You shall not bring any objection as to drought, inundation, hail, and other calamities of the soil and the seasons. You shall make such settlements and use such exertions as will increase the cultivation more than before. You shall further give strict injunction to your amlah and lessees that they do not allow thieves and highway robbers to reside within their boundaries, and (torn in the original). Hence these few words are executed as a mokurreree pottah from generation to generation, that it may be of use when required."
The pottah was then handed over by the Rajah to Burratee Begum, by whom it was retained till her death. The Rajah died in September, 1857, Shurfoonnissa having predeceased him, ac-cording to the finding of the High Court. From the time of the making of the grant, the rents, at the rate reserved, were received from Burratee Begum by the Rajah, and after his death by the Appellant, as regards her share thereof; although the name of Shurfoonnissa continued to be used in the receipts long after her death. Burratee Begum died on the 9th of Falgon, 1267, or February, 1860; and for five years thereafter the Appellant received her share of the rent from the Respondents, being the two daughters and widow of a deceased son of the Rajah and the said Burratee Begum. In 1865 the two Ranees endeavoured to disturb the possession by Jodhun Singh, the lessee of the Respondents, of the said mouzah; and on the 6th of February, 1869, the Appellant sued to recover possession of her share thereof in the Court of the subordinate Judge of zillah Gya ; and obtained a decree to that effect on the 30th of March, 1870.
On the 23rd of May, 1871, the High Court (L, 8. Jackson and Ainslie, JJ.) reversed this decision in a judgment the material portions of which are as follows—
" The lower Court has held that the grant to Shurfoonnissa was not merely for life but in perpetuity. But inasmuch as she died childless, and in a recent decision of this Court reported in 12 Weekly Reporter, page 512, it was held that in the circumstances of this family no right of inheritance under Imameah law vests in the surviving brother or sister; the subordinat
