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MOKURltEREE ISTEMRARI. 351
Act X of 1859, section 15, re-enacted by Act VIII of 1869 Lkctums
(B.C.), section 16, provides that no dependent talookdar or — other person possessing a permanent transferable interest JJternSSIta in land, intermediate between the proprietor of an estate tenure3■ and the ryot, who holds his talook or tenure (otherwise than under a terminable lease) at a fixed rent which has not been changed from the time of the Permanent Settlement, shall be liable to enhancement. Surbarakaree tenures in Cuttack, the holders of which have no power to transfer their holdings without the consent of the zemindar,1 have been held to be permanent hereditary tenures within the meaning of this section.2
With regard to the creation by the zemindar of permanent Mokurrereo
heritable tenures at a fixed rent, it was at first held that a mokurreree istemrari tenure under a pottah was not heritable, unless the pottah also contained words of inheritance,5 the tendency in earlier, times being somewhat adverse to permanent under-tenures. Those decisions have however now been overruled ;* and the use of words of inheritance is not required to create a heritable tenure. It has been also held in a series of cases that where a pottah merely specifies the rent and contains no words importing that the tenure granted is hereditary, the hereditary character of the tenure may be supported by other circumstances, such as long occupation at a fixed rent and the descent of the tenure in the
1 Doujndhna Doss c. Choorga Daye, 1 W. R., 322.
* Saddanando Maiti v. Nourattan Maiti, 8 B. L. R., 280; 16 \V. K., 290, s. c.
'Baboo Toolsee Narain Sahee v. Baboo Modnarain Singh, S. D. A. (1848), 752. Rajah Modenarain Singh v. Kantlall, S. D. A. (1859), 1572.
'Baboo Lekhraj Roy v. Kanhya Singb, 17 W. R., 485.
352 MOKURREREE ISTEMRARI.
Lkcturk ordinary course.1 It has also been held that the words — mokurreree istemrari are sufficient to create an hereditary perpetual tenure, and it seems one of which the rent is fixed," although the decisions are not quite uniform.3 Following the cases above referred to, it has been held that the words ' mokurreree istemrari,' combined with a descent through two generations, is sufficient to establish an hereditary tenure at a fixed rent.* The mere use of the term 'mokurreree' will not create a perpetual tenure,5 nor will the words ' tikka mohto.'6 But a grant by a mokurrereedar of a lease or thika to last as long as the mokurreree lasts has been held heritable.7 And a grant of an absolute (moo8takhil) mokurreree to the grantee and her children from generation to generation, gives a transferable interest of the most absolute kind, and which does not revert to the grantor on failure of heirs.8 Some of these grants are
1 Mobummud Ismail Jamadar v. Rajah Balungee Surrun, 3 Sel. Rep., 346. Joba Singh v. Meer Nujeeb Oolah, 4 Sel. Rep., 271. Golam Ali v. Baboo Gopal Lai Tbakoor, 9 W. R., 65. Baboo Dhunput Singh r. Gooman Singh, 11 Moore's I. A., 433, see pp. 465, 466. Rajah Satyasaran Gbosal r. Mahesh Chandra Mitter, 2 B. L. R., P. C, 23, following Baboo Gopal Lall Tbakoor v. Teluck Chunder Rai, 10 Moore's I. A., 191, where however there is only a dictum.
2 Mussamat Lakhu Kowar v. Hari Krishna Sing, 3 B. L. R., A.C., 226. Rajah Lilanuud Singh Bahadoor o. Thakur Munorunjun Singh, 13 B. L. R., 124.
'See Mussamat Ameeroonissa Begum v. Maharajah Hetnarain Singh, S. D. A. (1853), 648; and Sorobur Singh v. Rajah Mohenderuuraiu Singh, S. D. A. (1860), 577.
4 Karuakar Mahati v. Niladhro Chowdhry, 5 B. L. R., 652.
• The Government of Bengal c. Nawab Jafur liossein Khan, 5 Moore's I. A., 467.
* Nuffur Chunder Shaba v. Gossain Jysingh Bharutte, 3 \V. K. (Act X), 144.
7 Baboo Lekhraj Roy v. Kanhya Singh, 17 W. R., 485.
'Mirza Himmut Bahadoor r. Ranee Sooueet Kooer, 15 W. R., 549.
EFFECT OF POSSESSION'. 353
made while sun and moon endure (jawatchand dvwakar).1 L«crunn On the other hand, some are only life-interests: thus it is — customary in the Tipperah Raj to grant mokurreree tenures to members of the zemindar's family which by the custom of the Raj are resuinable on the grantee's death.11
These tenures may be proved by long possession although Such tenures
, . a, . , proved by long
■fch.e pottah contains no word sufficient to create such a possesion. tenure.3 Thus the receipt of rent for forty years, and an application made by the zemindar to a Civil Court for the sale of the tenure, were held sufficient ratification of a mokurreree tenure created before Regulation V of 1812, and which would therefore have been invalid under Regulation XLIV of 1793. And in an early case which arose in Cuttack great force was given to a payment of rent for only twelve years. In that case a khandait or sirdar of pykes claimed to hold a perpetual tenure at a fixed rate. He was also the zemindar, but his zemindary had been included in a jageer. His zemindary sunnud specified a certain rate of revenue, and this was also specified in the sunnud granting the jageer, which directed that the jageerdar and his heirs were to have all the privileges of the British Government, but were not to interfere with the rights of the zemindars, khandaits, and mokuddims of the mehals included in the jageer. The zemindar khandait had paid the specified rate for twelve years, and alleged that that rate had been paid under the Mahratta Government. It was held that the holding was perpetual and at a fixed rent, although no
1 Morley's Digest, Vol. I, p. 419, pi. 87,
* Roop Moonjuree Kooeree v. Beer Chunder Jobraj, 9 W. R., 308.
'Unoda Perahad Banerjee v. Chunder Sekhur Deb, 7 W. R., 394. Pearee Mohun Mookerjee r. Rajkishto Mookerjee, 11 W. R., 259. Brajauath Kundu Chowdbry c. Lukhi Narayan Addi, 7 B. L. R., 211.
354 RIGHT OF OCCUPANCY.
Lkctuee terms implying perpetuity were used in the sunnud, and — the rate specified was for a particular year.1 And whether the words mokurreree istemrari mean permanent during the life of the grantee or imply an hereditary tenure (s point which has been much discussed, but now it would seem decided in favour of the hereditary right), such words coupled with a usage of hereditary descent are certainly sufficient to support an hereditary tenure* Right of We have seen that the Regulations for the Permanent
Settlement expressly reserved to the Governor-General in Council the right to make such Regulations as might be necessary to protect the cultivators." This was at length acted upon in 1859, when, by Act X of that year, a new species of right, called an occupancy right, was conferred upon cultivators who had occupied their holdings for twelve years and upwards. I have mentioned that the istemrardars or mokurrereedars who had held at a fixed rent for twelve years before the Decennial Settlement were protected from enhancement: and in like manner, by the provisions of Act X of 1859, a ryot who had occupied for twelve yean could not be ejected* The period of prescription in the case of land has always been twelve years in India, and this had probably some influence in determining the period chosen. Act X of 1859, section 6, re-enacted by Act VIII of 3869 (B. C.), section 6, provides that "every ryot who shall have
RIGHT OF OCCUPANCY. 355
cultivated or held land for a period of twelve years shall have Lscturk a right of occupancy in the land so cultivated or held by him, — whether it be held under pottah or not, so long as he pays the rent payable on account of the same : but this rule does not apply to khamar, nij-jote, or sir land belonging to the proprietor of the estate or tenure and let by him on lease for a term, or year by year, nor (as respects the actual cultivator) to lands sub-let for a term, or year by year, by a ryot having a right of occupancy. The holding of the father or other person from whom a ryot inherits shall be deemed to be the holding of the ryot within the meaning of this section." This provision substantially restores the khoodkasht ryot to his former position: for probably in Hindoo times a ryot who had cultivated the same holding for twelve years would have been considered to have given the pledges required to protect him from ejectment so long as he paid the rent. It was also evidently following the principles of the ancient system that the khamar, nij-jote, and sir land were excluded; such land being in the immediate occupation or cultivation of the zemindar, or if not in his immediate occupation or cultivation, not occupied by khoodkashts. By section 7 of Act X of 1859, re-enacted by section 7 of Act VIII of 1869 (B. C), nothing in section 6 shall be held to affect the terms of any written contract for the cultivation of land entered into between a landholder and a ryot, when it contains any express stipulation contrary thereto." The ryot mentioned in these provisions is not further denned: it appears from the sections themselves that he may continue to be an occupancy ryot after subletting, and this has been the view taken in several decided cases. It has also been held that the ryot, in order to acquire Acquisition of a right of occupancy, need not himself actually cultivate but,he "gbu