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Tokurreree intermediate tenures.

Act X of 1859, section 15, re-enacted by Act VIII of 1869 LECTURE (B.C.), section 16, provides that no dependent talookdar or other person possessing a permanent transferable interest in in land, intermediate between the proprietor of an estate ten 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,' have been held to be permanent hereditary tenures within the meaning of this section.?

With regard to the creation by the zemindar of permanent Mokurreres 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, 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

istemrari.

" Donjodhna Doss o. Choorga Daye, 1 W. R., 322.

? Saddanando Maiti o. Nourattan Maiti, 8 B. L. R., 280 ; 16 W. R., 290, s. c.

* Baboo Toolsee Narain Sahee v. Baboo Modnarain Singh, S. D. A. (1848), 752. Rajah Modenarain Singh o. Kantlall, S. D. A, (1859), 1572.

• Baboo Lekhiraj Roy v. Kanhya Singb, 17 W. R., 485.

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IX.

ordinary course.' 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. Fol-
lowing 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 here-
ditary tenure at a fixed rent.* The mere use of the term
'mokurreree' will not create a perpetual tenure, nor will
the words 'tikka mohto.' But a grant by a mokurrereedar
of a lease or thika to last as long as the mokurreree lasts
has been held heritable.? And a grant of an absolute
(moostakhil) 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. Some of these grants are

' Mohummud 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 Lal Thakoor, 9 W. R., 65. Baboo Dhunput Singh v. Gooman Singh, 11 Moore's I, A., 433, see pp. 465, 466. Rajah Satyasaran Ghosal 0. Mahesh Chundra Mitter, 2 B. L. R., P. C., 23, following Baboo Gopal Lall Thakvor v. Teluck Chunder Rai, 10 Moore's I. A., 191, where however there is only a dictum.

? Mussamat Lakhu Kowar v. Hari Krishna Sing, 3 B. L. R., A.C., 226. Rajah Lilanund Singh Babadoor 0. 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 Mohendernaraiu Singh, S. D. A. (1860), 577.

• Karnakar Mahati v. Niladhro Chowdhry, 5 B. L. R., 652.

• The Government of Bengal 0. Nawab Jafur Hossein Kban, 5 Moore's I. A., 467.

6 Nuffur Chunder Shaba v. Gossain Jysingh Bharutte, 3 W. R. (Act X), 144.

? Babuo Lekhraj Roy o. Kanhya Singh, 17 W. R., 485.
• Mirza Himmut Babadoor v. Ranee Sooneet Kooer, 15 W. R., 549.

Si. Karel Govern

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made while sun and moon endure (jawatchand diwakar).' LECTURE 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 resumable on the grantee's death." These tenures may be proved by long possession although Such tenures

proved by long the pottah contains no word sufficient to create such a possession. tenure. 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

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LECTURE

IX.

terms implying perpetuity were used in the sunnud, and the rate specified was for a particular year. And whether the words mokurreree istemrari mean permanent during the life of the grantee or imply an hereditary tenure (a 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."

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 years 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 1869 (B. C.), section 6, provides that “every ryot who shall have

Right of occupancy.

1 Moohummud Ismail Jemadar v. Raja Balungee Surrun, 3 Sel. R., 346. · Rajah Lilanund Singh Babadoor o. Thakur Munorunjun Singh, 13 B. L. R., 124, at p. 133. See Mr. Macnaghten's note as to mouroosee and istemrari pottahs, 1 Sel. R., 140.

3 Regulation I of 1793, s. 8, cl, 1.

* Ram Mungul Ghose v. Lukhee Narain Shaha, 1 W.R., 71. Kalee Kishore Chatterjee v. Ram Churn Shah, 9 W. R., 344. Haran Chunder Paul v. Mookta Soonduree, 10 W. R., 113; 1 B, L. R., A. C., 81, s.c.

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IX.

cultivated or held land for a period of twelve years shall have LECTURE 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 defined: 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 the right.

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