Mohsin Ali & Ors. v. State of Madhya Pradesh

SARKARIA, J.--By a firma11, dated October 25, 1934, Nawab Sir Hamidullah Khan, the then Ruler of Bhopal State, in appreciation of the long and distinguished services of Sir Liaqat Ali, gave to the latter, in addition to the grant of pensions, the residential house in question as "inayat ataa". Sir Liaqat who was already residing in this house, continued therein till he died, issueless and widowless, in March 1947. One Syed Mohammed Ali who was the son of Sir Liaqat's father's sister, also used to reside in this house with the deceased. After Sir Liaqat's death, Syed Mohammed Ali continued in occupation of this house as· one of the nine heirs of the deceased, till he was "forcibly and unlawfully" ejected in May 194 7 by the, then Government of Bhopal. Paying a "deaf-ear" to the repeated demands of Syed Mohammed Ali for restoration of possession, the Government "per- ~·.I

sisted in the act of trespass" and continued in illegal possession of the house. After his ouster, Syed Mohammed Ali also 'died sometime in 1947.

On April 30, 194 7, the N awab of Bhopal signed the Agreement of Merger and the State of Bhopal was taken over by the Chief Commissioner on behalf of the Government of India on June !, 1949. Thereafter, on November 1, 1956 the territory of the former Bhopal State became a part of the re-organised State of Madhya Pradesh.

On August 21, 1957, after serving a notice under s. 80, Code of Civil Procedure, the plaintiffs 1 to 3, who are the son, daughter and widow, respectively, of Syed Mohammed Ali, instituted the suit against the State of Madhya Pradesh for recovery of possession of the house, on the footing that under the firman, it had been gifted absolutely by the Nawab to Sir Liaqat Ali who died possessed of it as full owner, and on the donee's death, it was inherited by Syed Mohammed Ali who, in turn, was succeeded by the plaintiffs. It was further pleaded that Syed Mohammed Ali was "forcibly and unlawfully" dispossessed by the Government in May, 1947.

The suit was resisted by the defendant State on the ground, inter alia, that the Ruler's firman "did not confer absolute title on late Liaqat Ali", but only a lifo-interest in the house.

The Additional District Judge who tried the suit, found on a construction of the firman (Ex-P-1), that the suit house had been gifted by the Ruler to late Sir Liaqat Ali, absolutely, and, in conse-quence, decreed the suit. On appeal, a Division Bench of the High Court of Madhya Pradesh reversed that finding and held that "on a true construction of the Firman (Ex.P-1), the grantee, the late Sir Syed Liaqat Ali, was given only an estate for life in the suit property, and the plaintiffs as ·his heirs had no right to inherit it as his property." In the result, the appeal was allowed and the plaintiffs' suit was dis-missed.

On a certificate granted by the High Court under Art. !33(1)(a) of the Constitution read with Sections 109 and JI 0 of the Code of Civil Procedure, the plaintiffs have now come in apl"'al to this Court.

The main issue framed by the trial court was in these terms :

"Was the house in dispute given by the Ruler to Shri Liaqat Ali deceased absolutely or for life only."

The decision of this issue turns on an interpretation of the Firman (Ex.P-1), dated October 24, 1934 whereby the Ruler gave this house to the deceased.

The original Firman is in Urdu. As rendered into English by the courts below, it reads:

"Hon'ble Motamid-u-Sultan Nasir-ul-Mulk S)'ed Sir Liyaqat Ali". '-.1

"Lookin~ into considerations with gratitude your valuable services and faithful sacrifices which you have ren-dered for more than 30 years and considering the economic condition of the State you have served without remuneration for the last 2 years, your application (for pension) is granted. You are granted permission lo retire in lieu of your valuable services from 1st October 1934. You should hand over charge of Mushir-ul-Muhami Rubkari Khas to Honourable Shoeb Qureshi.

Besides that pension you are entitled to receive under the Pension Rules of the State Treasury, you are also entitled to receive a sum. of Rs. 400/- as monthly pension from Trea-sury of Dcodh1 m lieu of valuable services of Deodhi Khas an_d you are (further) granted your residential house situated at Bara Mahal Shahjahanabad, as gift."

..!' The original of the crucial sentence, which has been underlined,

reads :

"Aur aapka sakoonti makan waqya Bara Mahal Shahja-hanabad apko inayat ataa kiya jata hai."

The Firman was by order published in the Bhopal Government Gazette dated 31-10-1934, under the Heading : 'Pension to·Aali Mortab~t Sir Syed Liaqat Ali Saheb'. Rendered into English, its material part runs thus :

"Now the said Hon'ble again requests for grant of his previous application on account of rendering service for more than thirty years. Hence His Highness the Ruler of Bhopal c: Khuld-Allah-Mulkahum considering his valuable services and his faithful sacrifices that he had served without remune-ration for the last two years, taking into consideration the eco-nomic condition of the State. Considering (all his valuable services) with gratitude (His Highness the Ruler of State) grauts him permission to retire from 1st November, 1934 and also grants him his residential house situated at Bara Mahal Shahjahanabad as gift.

His Highness the Ruler of Bhopal State further orders that Hon'ble Syed Sir L\aqat Ali Saheb be paid Rs. 400/- monthly pension from the Treasury of Deodhi Khas in res-pect of services of Deodhi Khas besides his regular pension under the Rules 'of the State Treasury for which he is entitled to receive from the Treasury of State".

The original of the underlined sentence, in the Gazette N otifica-tion reads :

"aur unko sakoonti makan waqya Bara Mahal Shah-jahanabad inayat marhmat pharmale hain."

It is to be noted that the disposition evidenced by the Firman, Ex. P-1, is a tripartite grant made by an autocratic ruler to his subject in recognition of !Dng, meritorious services rendered by the latter. This grant belongs to the category of disposition, which under the English Common Law are known as "Crown grants".

The tenor and language of the Firman, particularly the words "aapko lnayat Kiya Jata Hai" unmistakably mark it out as a Sove-reign grant. According to Steingass' · Persian-English Dictionary "inayat" (Noune) signifies a favour, a gift, a present, a bounty"; and "Ataa" (Verb) means "to give, to confer a benefit or present with", "Ataa~' (Noun) implies "Giving, a present, gift, donation, favour, a grant,- endowment, concession; consideration". In the widest sense, 'grant' may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or tra~ferred by the Crown, ~.g .. , grants of pensions, patents, charters franchise (See 'Earl Jowtt's D1ct1onary of English Law).

In England, contrary to the ordinary rule applicable to grants by, i., a subject, grants by the Crown are usually construed most favourably for the Crown. The rule in case of Royal Grants is that general words will not pass prerogative rights by implication.

This general rule is, however, capable of important relaxations in favour of the subject. If the intention of the Soverejgn is obvious from the document which in precise, unequivocal terms defines the extent and nature of the benefit conferred, it must take effect. No question of seeking extrinsic aid to its construction arises. If the grant is for valuable consideration it must be construed strictly in favour of the grantee, for the honour of the Sovereign and where two constructions are possible, one valid and the other void, that which is valid ought to be preferred, for the honour of the Sovereign ought to be more re-garded than the Sovereign's profit. Where, however, two interpret;a,tions may be given to the grant, both of which are good, that which is most i favourable to the Crown is in many cases preferred (see Halsbury's Laws of England, 3rd Ed. Vol. 7, Paragraphs 669 and 670 pages 314-316).

These rules of interpretation have been applied to Sovereign grants in India, also (see Raja Rajinder Chand v. Sukhi( 1), Gulabdas Jag-jivandas v. Collector of Surat( 2 ), Sheikh Sultan Sani v. Shekh Ajmod-din(3), Azziz-un-nissa v. Tasadduq Husain Khan(''), Ram Narayan Sing/• v. Ram Saran Lal(").

It is in the light of the above principles that we have to determine whether by tire Firman, Ex. P-1, the Ruler intended to grant a life estate or an absorute estate in the suit house.

Mr. Hardy, learned Counsel for the appellants contends that the disposition in di~pute would not fall within an exception to the general rule according to which a Sovereign grant is construed in favour of the Sovereign, because firstly, the last sentence of the Firman, the interpretation of which alone is in question, declares in plain, self-contained and irnambignous terms that the grant of house is an out and out gift to the grantee, and secondly, the grantot and the grantee, being Muslims, the gift would, under Mohammedan Law, have the effect of conveying an absolute heritable estate. In this connection, support has been sought from certain observations of the Privy Coun-cil in Sardar Nawazish Ali Khan v. Sardar Ali Raza( 6), which are as follows :

"In general, Muslim Law draws no distinction between real and personal property, and their Lordships know of no authoritative work ......... which affirms that Muslim Law recognizes the splitting up of ownership of land into estates, (1)11956] SCR 889 as per S. K. Das J. at p. 902.

(') 6 I.A.5· 4 (') 30 I.A. 50.

1(<) 28 I.A. 65.

(5) !LR 46 Cal. 683 (P.C.).

(6) 75 I.A. 62 at 77.

or in point. of quality like legal and equitable estates, or in - point of duration like estates in fee sample in tail, for life, or in remainder. What Muslim Law does recognize and insist on, is the distinction between the corpus of the property itself (ayn) and the nsufruct in the property (manafi). Over the corpus of the property the law recognizes only absolute dominion, heritable and unrestricted in point of time, and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the conditfon is re-jected as repugnant, but interest limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited in-terests." (emphasis added) Mr. Hardy refers to the letter, dated 29-6-1938 (Ex. P-3) of the Chief Engineer and Secretary, P.W.D., Bhopal whereby two maps of the 'house, Nawab Manzi! were sent to the grantee. The portions shown in light red colour in these maps were referred to in this letter as in the "possession and ownership" of th'e grantee according to the Gazette Notification No. 7, dated 31st October, 1934.

As against the above, Mr. Panjwani, learned Counsel for the Respondent submits that the grant of the house is not to be dis-sociated from the pensionary grants; that even the last sentence of the Firman, read in the context along with its preamble reaso.tiably bears only one construction viz., that a right of residence for life, to be conveyed by the Ruler to the grantee. Stress has been laid on to be conveved by the Ruler to the grantee, Stress has been Jaid Oh the fact that there are no words· such as, nasa/an-dar-nasalan, pushat-dar-pushat etc. in the language of the Firman showing that absolute heritable rights in the property were conferred on the grantee. Coun-Jsel further maintains that the Firman represent' a grant made by an absolute Ruler in favour of his subject on the occasion of the latter's retirement from service and that it was not a mere hiba made by one Muslim under Mohammedan Law to another Muslim. Reference to Mohammedan Law, proceeds the argument, has no relevance. It is urged that the grant being a SoYereign grant, had to be construed strongly against the grantee, and imperfections in the language of the Firman had to be resolved in favour of the Government, by reading it as a whole in the light of the surrounding circumstances and even the subse-quent conduct of the then Bhopal Government in ejecting, Syed Mohammad Ali from the house in May, 1947. That ejectment, according to the Counsel, amounted to resumption of the grant-(by the grantor) who was then alive and was still the absolute Ruler of Bhopal state. Counsel has referred to several authorities in support of these contentions.

We are not persuaded to accept the appellant's contention that the Firman conveys, in precise and unequivocal terms, full and abso-lute ownership of the suit house to the grantee. In our opinion, the language of the last sentence of the Firman, which\ is the sheet-anchor of this contention, even by itself; does not indubitably and

unequivocally indicate that the intention of the Ruler was to grant an absolute estate. The Firman .is conspicuous by the non-employment of any words declaring that thenceforth the grantee would have a heritable estate in the house or that the grantpr had transferred all bis rights in the property, absolutely in favour of the grantee. There is no use of such words that the grant would take effect as "nasalan-dar-B_ nasaln", "from generation to generation" "towarsan, kaiam u qaman"'

"to grantee and his heirs" etc. pointing towards the creation of a heritable estate. Even the use of such terms by itself, has been held to be an inconclusive indication of the grantor's intention to confer absolute, heritable rights. Thus, in Gulabdas Jagjivandas's case (supra) despite a reference in the sanad to the children or descendants' of the grantee, the Judicial Committee held that the grant bad not been made "on terms which would make them hereditary".

Again, in Sheikh Sultan v. Shekh Ajmoddin (supra), delivering the judgment of the Board, Lord Hannen quoted with approval, a minute dated 15-3-1922, recorded by Sir Thomas Munro in which he states that the terms .in such documents ( sanads) 'for ever' from gene-ration to generation or in Hindu grants, 'while the sun and moon en-dure', 'are mere forms of expression', and were neve1 supposed either by the donor or receiver 1o convey the durability which they imply or any beyond the will of the Sovereign. On the authority of another minute recorded by Sir Thomas Munro, it was further observed "that while the seizure of private property by the native princes would have been considered unjust by the country, Jagir grants were not regarded by the people in the light of private property".

It is not necessary to multiply authorities with regard to the cons-truction of such customary terms which could possibly be indicative of the grantor's intention to make a heritable grant, because the Fir-man Ex. P-1, is benefit of all such terms. It will be sufficient to sav that the language of the Firman does not in clear and unambiguous terms express an intention to create an absolute estate'· in favour of the grantee and bis heirs. The Firman has therefore to be construed in accordance with the well-established rule of construction applicable to Sovereign grant.

Another cardinal canon of interpretation to be borne in mind is that in order to ascertain the real intention of the grantor, the Firman has to be read as a whole. It will not be correct-as the appellants want us to do to dissect the Firman into three water-tight compartments or to read last sentence of the Firman out of the context. It is also per-missible to consider the surrounding circumstances and the occasion on which this grant was made, as legitimate aids to construction of the Firman (see Gu/abdas Jagjivandas v. Collector of Surat (supra).

The occasion for the grant as apparent from the preamble of the Firman, Ex.P-1, (reproduced in the Notification Ex.P-2) was that the grantee, Sir Liaqat Ali, having attained the age of superannuation, was retiring with the permission of the grantor, after putting in "valu-able" and "faithful" service for more than thirty years, including two years for which he served without remuneration, in view of the poor economic condition of the State .• An analysis of the Fir'!'a11 will show that it confers three-fold benefits on the grantee. Firstly, 1t grants him such pension as would be admissible under the Service Rules. This he would draw from the State Treasury. S.econdly, in addition to the first, it gran!s him pension at the. ra~e of Rs. 400 /- per mont~ which the p~ner would be entitled to dr~w fr~m the Dwdh1 Treasury i.e., Privy Purse of the Ruler. Tlnrdly, It grants hun a beneficial interest in the residential house, in these terms : "A ur aapka sakoonti makan waqya Bara Mahal Shahjahanabad apko inayat ataa kiya jata hai''.

As is indicated in the Fil man (Ex.P-1) (P-2J NolihcatJon i11 1naking this tripartite grant the Ruler was actuated by consideration of. _grati-tude for the valuable services rendered by the grantee. The object of conferring these three-fold benefits was the same, namely, to secu~e to the retiring servant a handsome maintenance and comfortable resi-dence for the. rest of his life. In other words, all the three benefits granted under this Fil'lnan were cognate benefits, arising out of the "D same occasion, and made with the same object in view viz., to enable the grantee to live comfortably in retirement. These related benefits could be compendiously described as "retirement benefits". The first t\vo benefus were indisputably pensionary benefits enuring only for the life-time of the grantee. All the three kindred benefits, includ-ing the one in question, were exprei;sly meant for the person of the grantee. This is clear from the word 'apkd' which means "to you" in the phrase "apko inayat aiaa kiya jata hai'" The .conjunc.tion "aur" (and) at the commencement of the last-sentence of the Firman inextri-cably Jinks the grant of interest in the residential house, with the pensionary benefits conferred in the foregoing parts of the Firman. Jn short, ail the three-fold benefits granted under this Firman are off-l spdng of the same genus. The language of the Firman relating direct-

ly to the grant in question therefore takes its colpur from the preceding parts of the Firman relating to the pensionary benefits conferred on the grantee for life. Thus if the crucial words quoted above, are construed in the context of the akin grants, and~according to the general tenor of the Firman as a whole, it becomes clear that the. intention of the Ruler was to grant only a right of residence limited to the life time of the grantee-and not an absolute estate in the. house. The snrronnding crrcumstanc.es also confirm the interpretation, adopted by us. The first sue~ circumstance was that at the time of the grant, the grantee ~ad no issue, nor any near relation. Indeed, he died widowless and 1ssne-Jess. In this context, co11pled with the omission, of any wores s~ch as to "grantee and his heirs" or "nasalan-dar-nasalan" indica-tmg the grant to be heritable, it would be reasonable to hold that the gra~t was intended to be for life only.

The_re is yet. another circumstance which points towards the same co~clus1~11. It JS. that at the time of the grant the gr~ntee was alread res1d.mg !n the smt house. In this context, the word "sakoonti" ('resl denl!al) m the last l?art of the Firman used in aS!>ociation with 'makan' (honse) assumes significance. It suggests that the intention of th grantor was to convey to the grantee no more than a right of resi-dence in the house which the latter was already enjoying.

The letter Ex.P-3 written by the Chief Engineer on 29-6-1938 is of hardly any assistance in construing the grant made three or four years earlier. It could not be treated as contcmperaneous conduct of the grantor or his agent, which could legitimately be taken into consi-deration in construing the grant.

On parity of reasoning, it is doubtful whether the fact of eviction of Syed Mohammed Ali from the suit house, about two. months after the death of the grantee and about 15 years after the grant, could justi-fiably be called in_,}id as a "surrounding circumstance" to interpret the Firman dated 24-10-1939. The High Court has taken this circum-stance also into account. We need only say that even after excluding this circumstance, there remains sufficient and sound foundation in the language of the Firman and the contemperaneous surrounding cir-cumstances, including the common genus, the same occasion and pur-pose of the three-se1ided grant, to hold that the Rule1 had conferred only a limited estate in the suit property for the life-time of the grantee.

The argument advanced on behalf of the appellants that the grant in question was a 'hiba' made in accordance with Mohammend1~n Law by one Muslim toanother, has been stated only to be rejected. To all intents and purposes, it was a grant made by an absolute Ruler to his subject who,had rendered long meritorious services, on the eve of his retirement. Reference to Muslim law is herefore misconceived. We may, however, say in passing that even according to the observations of the Privy Council relied upon by the C..ounsel. creation of an interest limited in point of time, in the usufruct of the property is not necessarily repugnant to Muslim Law.

Mr. Panjwani has advanced an alternative argument also, to suppcrt the decision of the High Court. The contention is that even if it is assumed that the house had been given to Sir Liaqat Ali absolutely, then also the grant had come to an end on resumption of the posses-sion of the house by the Government of Bhopal in 194 7, and there-after the grant continued to be non-est because after the merger of the State of Bhopal on 1-6-1949, it was not recognised by the Govern-ment of India or by the new Government of Madhya Pradesh after Bho-pal became a part of that State on 1-11-1951. Rather, as per Ex.P-6, the new Government after the disappearance of Bhopal State from the scene, repndiated the grant. In these circumstances, submits the Counsel, the appellants did not carry with them the right, if any, they had under the grant as subjects of the Ex-Sovereign Ruler of Bhopal and after the extinction of Bhopal State and its Ruler, they had only such rights as were granted or recognised by the new Sovereign i.e. the Central Government. According to the Counsel, the plaintiffs' claim was not enforceable in the municipal courts. Reliance has been placed on the decision of this Court in State of Gujarat v. Vora F]difali Badn1_ddin !.fit_hibarwale('); · ,

MOHSIN ALI. v. M.P. STATE (Sarkaria, l.) 249 There is no foundation for the plea either in the pleadings or in the issues. We therefore do not ·allow it to he raised for the first time in this Court.

For the foregoing reasons, the appeal fails and ·is dismissed with costs.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 166 of 1968. From the. judgment a11d decree dated 5th September, 1962 of the Madhya Pradesh High Court in First Appeal No. 1 of 1956.

Hardaya/ Hardy and S. S. Hussain, for the appellants.

Ram Panjwani, H. S. Parihar and f. N. Shroff, for the respondent.