TMI Blog1962 (9) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... tire interest of the Lakhirajdar under whom he was the raiyat. On May 15, 1935, these lands were sold by the 2nd party defendants and others including the plaintiffs 1 to 6, to the present appellants. The plaintiffs case is that no interest passed to the vendees by that sale deed, because the raiyati character of the land was existing on the date of transfer and this was inalienable under the provisions of Regulation III of 1872. It was further pleaded that this transfer of 1935 was fraudulent and collusive and that there was no legal necessity for the transfer. The defendants first party denied the allegations of fraud or collusion and further pleaded that the transfer was made for legal necessity for paying antecedent debts of the family and they are therefore binding on the plaintiffs. They also pleaded that the lands in the suit were not, on the date of the sale, raiyati but Bakasht lands of the Malik and so there was no bar to the sale of these lands under the provisions of Regulation III of 1872. The Subordinate Judge, Dumka, who tried the suit held that the sale was justified by legal necessity and that it was not fraudulent or collusive. He further held that whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, however, gave a certificate that as regards the value and nature of the case it fulfilled the requirements of s. 110 of the Code of Civil Procedure read with Article 135 of the Constitution of India and was a fit case for appeal to this Court. On that certificate the defendants first party have preferred the present appeal. The first contention which Mr. Jha urged in support of the appeal is that after Santokhi acquired the Lakhirajdar s interest, he ceased to be a raiyat. The argument is two- fold. First, he argues that as a matter of law, there was an automatic merger of the raiyati interest in the larger interest, the Lakhirajdar s interest. Secondly, it is argued that at least Santokhi had the option to merge the raiyati interest in the Lakbirajdar s interest, and he exercised that option. The first argument is indeed the language of the law of merger at English common law. Black- stone in his Commentaries on the Laws of England, Vol. II, 4th Edition, p. 151 put the matter thus Whenever a greater estate and a less coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phrase, is said to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that while the union of the superior and subordinate interests might not automatically cause a merger of the latter in the former, the conduct of the party concerned might show that he did not intend to keep the two interests alive as mutually distinct rights and if this was shown, merger should be held to have taken place. In decision of the Privy Council in Raja Kissen Dutt Ram v. Raja Mumtaz Ali Khan (1879) I. L. R. 5 Cal. 198, there was a statement in favour of the possibility of merger of resumable birt tenures in a superior interest, where the holder did not take steps to keep the two interests alive as distinct. In a lager number of cases decided after this date the Calcutta High Court has taken the view as in Prosonna v. Jagat (1878) 3 C. L. R. 159) that where the conduct of the party concerned showed that he did not intend to keep the two interests alive as mutually distinct rights the union of the superior and subordinate interests will result in merger of the latter in the former. (Vide Surja Narain Mandal v. Nand Lall Sinha, (1906) I. L. R. 33 Cal. 1212) Ulfat Hossain v. Gayani Dass (1909) I. L. R. 36 Cal. 802) and Promotha Nath Roy v. Kishore Lal Sinha, (1916) 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndi is allowed to be taken out of the total quantity of the raiyati lands. If once raiyati lands are allowed to lose their character as such a village may find in the course of a few years the total stock of land available for settlement to resident raiyats, dwindling before their eyes. It was in this state of things that the alienation of Raiyat s holdings in any form was interdicted by Government orders in 1887. These had the immediate effect of checking the practice of open transfer which had sprung up during the first years of Wood s Settlement; but transfers in a disguised form continued and the officers had to be constantly on watch to check the passage of village lands into the hands of persons whose intrusion within the village community was considered pernicious. (Appendix XV of the Settlement Report of the Santhal Parganas). In his note on the subject of the alienation policy of lands in the Santhal Parganas, Mr. McPherson, expressed himself strongly against any sales in any form being allowed. To allow sales in any form will, I think , runs the note, tend to weaken the communal system of the Santhal Parganas and the position of the Pradhan. The root idea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge areas of the Santhal Parganas which cover the greater part of the districts raiyat has not got the right to pot an end to his raiyati interest even where he acquires the superior interest. We are inclined to hold, as at present advised, that the doctrine of merger does not apply to the case of raiyati holders in the Santhal Parganas; but we do not wish to express a final opinion on this point in the present case. Even if we assume that it is open to a raiyat to treat the raiyati interest as merged in the proprietary interest we are clearly of opinion that the evidence in this case does not show that this was done by Santokhi. In their attempt to show that Santokhi decided to treat raiyati interest as merged in the Lakhirajdar interest the appellants relied on Ex. I--a certified copy of the order-sheet in Settlement Objection Case No. 41 of 1909. The objection was made by Santokhi in respect of the entry in the record of rights of the land now in dispute. After stating that Santokhi purchased the Zamindari interest three years ago., the order reads thus : Santokhi is now the Zamindar and the sole raiyat in the village. It seems necessary to have him as Pradhan now. He wants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. What he might appear to gain by getting rid of the bar against transfer would be more harmful to him and his family in the long run. All things considered, it seems to us clear that it was to the benefit of Santokhi to keep the raiyati interest distinct and separate from the Zamindari interest acquired by him. This was also, in a way, his duty under the community village system in the Santhal Parganas. Even if we were to hold therefore that the doctrine of merger applies to the Santhal Paraganas to this extent that if the person in whom the two interests unite choose to treat them as one the lesser interest should be held to have merged in the larger interest, there is in the present case no evidence of such choice and Santokhi must be held to have intended to keep the two interests distinct and separate. Our conclusion therefore is that the raiyati interest did not merge in the proprietary interest. Mr. Jha s next contention that the entry in the subsequent record of rights should prevail over any entry in an earlier record would have been of assistance to his clients only if the entry of Bakasht Malik amounted to a negation of the raiyati interest. As we are of opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eree and either restore the transferred land to the raiyat or any of his heirs or to re-settle the land with another raiyat according to the village custom, if at any time it comes to his notice that a transfer in contravention of sub-section 1 of s.27 had taken place. We can find no reason to think however that the provision of this relief was intended to be exhaustive and to be a bar against any other reliefs in the courts. Indeed, the provisions of sub-section 2 of s.27 that no transfer in contravention of sub-section 1 shall be in any way recognized as valid by any court, make it obligatory for the civil court when a dispute arises as regards the title to lands to ignore transfers made in contravention of s.27 (1). For the proper exercise of that obligation it is necessary for the Court to decide whether in fact the transfer on the basis of which one of the parties to the litigation bases his claim was really made in contravention of s.27(1). If the Court is satisfied that there was such contravention the court must necessarily proceed to dispose of the case on the basis that no title accrued to the transferee by such transfer. The objection that s.27(3) stands in the way of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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