Radha Sundar Dutta v. Mohd. Jahadur Rahim and Others

- .. S.C.R. SUPREME COURT REPORTS 1309 suits against **:e** Central Board in respect of their acts _r9ss_ as well as to suits for . . any.relief in respect . of any l 5 ira;u~ .. _,-H_ _**aq**_ _Kh_ _**an**_ .waqf. It 1s not demed that 'the present smt wou d & _Others_ attract the provisions of s. 53 if the argument that v. the Darga and the offerings are not notified is rejected. _The_ _Sunni Central_ The rnsult is that the suit is not maintainabl~ as a _Board_ _[0]_ _1_ _Waqf,_ result of the appellant's failure to comply with the _u._ _P._ & _Others_ requirements of s. 53. We would accordingly con- _Gajendragadkar_ _J._ firm the finding of the High Court that the appellaints' suit is barred by time under s. 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under s. 53 of the Act. The result is that the appeal fails and is dismissed w,i.th costs. _Appeal dismissed .._ RADHA SUNDAR DUTTA _v ._ MOHD. JAHADUR RAHIM AND OTHERS (VENKATARAMA AIY.AR, G.AJENDRAGADK.AR and A. K. SARKAR JJ.) _Grant-Construction-Patni_ _settlement-Chaukidari_ _Chakaran_ _lands-Resumption and transfer to_ _Zamindar-Grant of the_ _lands_ _by_ _the_ _Zaminditr on_ _Patni to person_ _who_ _held the_ _village_ _in Patni settle-_ ~ _ment-Distinct_ _Patni-Sale_ _of lands for_ _arrears_ _of revenue-V.ali-_ . _dity-Bmgal_ _Patni Taluks Regulation, I8I9_ _(Ben._ _Regulation_ _VIII. of I8I9),_ _ss._ _8,_ _I4-Village Chaukidari Act, I870_ _(Ben._ _VI_ _of_ I870~, _SS._ _48,_ _50,_ _5I._ _**September**_ _**L8.**_ .. The lands in question are situate in lot Ahiyapur which is one of the viJlages forming part of the permaneptly settled estate of Burdwan and had been set apart as Chaukidari Chakar~n lands to be held by the Chaukidars for rendering service in the village as watchmen. At the time of the perma**nent settlement the income** **fro1n** **these lands was not taken into** account in fixing the _jama_ payable on the estate. Some time before the enactment of the Bengal Patni Taluks ~egulation,, 1819, the e~tire village of Ahiyapur was _granted by the then 1310 ~UPREME COURT REPORTS [1959] _z958_ Zamindar of Burdwan, _to_ the predecessor~in-title of the defendants on _l'alni_ settlement. In 1870 the \"1llage Chaukidari _R•dha_ _S11ndar_ Act came into force and actVig tfncler the prO\·isions of that Act _Dutta_ the Government put an en<l to the services of the Chaukidars, _**v.**_ **resum!'d the lands** **an<l** **imposed** **an** **assessment thereon, and,** _Mohd._ _jahadur_ subject lo it. transferred the lands to the Zamindar. On _Rahim_ June 3t 1899, the Zamin<lar granted the suit lands on _l'al11i0 to_ the **predecessors-in-title of the defendants \vho** \••ere **the then holders** of the village in _Palni._ In proceedings taken by the Zamindar under the provisions of the Bengal Palni Taluks l~egulation, 1819, the suit lands were brought to sale for arrears of rent and purchased by him. On February 13, 1941, the Zamindar sold the lands _to_ the appellant who sued to recover possession thereof from the defendants. The dcienclants resisted the suit on the ground; inter alia, that the effect of the grant of the Chaukidari Chakaran lands on June 3, 1899, was to make them part and parcel of the _Patni_ settlement of the village of Ahiyapur and that, in consequence, the sale of those lands, apart from t.Pe village of Ahiyapur, was bad as being a sale of a portion of the _Patni._ _H cld,_ that when the Zamindar made a grant of the Chaukidari Chakaran lands which formed part of a village which had previously been settled in _Patni,_ it was open to the parties to agree that those lancls should form a 1iew and distinct _Patni_ and the result of such an agreement would be that while t5e grantee would hold those lancls in _Patni_ right, that is to say, that the tenure would be permanent, heritable ancl alienable, so far as his liability to pay _jama_ a11cl the corresponding right of the Zamindar lo sell it under the l~egulation if there was a default in the payment thereof were concerned, the new grant would be a distinct _l'auii,_ ifldependenl of the original _l'at11i._ _Held,_ further, that construing the grant dated June 3, 1899, **as a \\·hole, the intention of the parties as expressed therein was** that the Chaukidari Chakaran lands were to be treated as a distinct _l'al"i_ and that, therefore, the sale of the lands for **arrears** **of** **rent** **\vas** **vali<l.** # . .. .. _Held,_ further, that construing the grant dated June 3, 1899, **as a \\·hole, the intention of the parties as expressed therein was** that the Chaukidari Chakaran lands were to be treated as a distinct _l'al"i_ and that, therefore, the sale of the lands for **arrears** **of** **rent** **\vas** **vali<l.** ~IYIL APPELl,ATE .JURISDICTION: Civil Appeal N"o. 108 of 1954. Appeal from the judgment and decree dated :\larch 21, 1952, of the Calcutta High Court in Appeal from A ppcllat~ Decree No. 971 of 1950, nrising out of the judgment and decree dated August 29, 1950,.of the Court of District Judge of Zillah Burdwan in Title Appeal No. 247/16 of 1948 against judgment and decree dated September 25, 1948, of the Court of Additiorral Sub-Judge, 1st Court, Burdwan, in Title •Suit No. 7 of 194~/27 of 1947. .. S.C.R. SUPREME COURT REPORT~ **1311** _N._ _G._ _Gha,.erjee_ and _Sukumar_ _Ghose,_ ·. for the appellant. - _J._ _N._ _Banerjee_ and _P. K._ _Ghose,_ for the respondents. 1958 .. September 18. The Judgment of the Court was delivered by _**Radha Sundar**_ _**Dutta**_ v. _**Mohd.**_ _**jahadur**_ _**Rahim**_ VENKATARAMA AIYAR J.-This is an appeal by the plaintiff against the judgment of the High Court of Calcutta in a second appeal which, in reversal of the judgments of the Courts below dismissed his suit, which was one in ejectment. The suit property is a Mahal of the extent of 84 Bighas 18 Cottas situated within lot Ahiyapur village, which is one of the villages forming part of the permanently settled estate of Burdwan Zamindari. This village was granted by the Maharaja of Burdwan in _Patni_ settlement to the predecessors-in-title of defendants **1** to 7. The exact date of this grant does not appear, but it is stated that it was sometime prior to tile enactment of the Bengal Patni Taluks Regulation, 1819 (Bengal Regulation VIII of 1819), hereinafter referred to as the Regulation, and nothing turns on it. 'Ghe Mahal with which thi!! litigation is concerned, had been at or prior to the permanent settlement set apart as _Ghaukidari Ghakaran_ lands~ that is.to say, they were to be held by the Chaukidars for rendering service in the village as watchmen. In 1870, the Village Chaukidari Act, 1870 (Ben. VI of 1870), hereinafter referred to as the Act, was pa.ssed, and s. 48 of t;hat Act ]Jrovides that all _Ghaukidari Ghakaran_ lands assigned for the benefit of any village shall be tr~ns­ ferred to the zamindar of the estate in the manner and subject to the provisions contained in the Act. Under s. 50, the Collector is authorized to make an order transferring .those lands to the Zamindar after determining the assessment payable thereon, 'and s. 51 _**Venkatarama**_ _**Aiyar**_ _]._ enact~ that: "Such order shall operate to transfer to such _zamindar_ the land therein mentioned subject to tihe amount of assessment therein mentioned, and subject, - - .. 1312 ###### • 1 SUPREME COURT REPORTS (1959) _**R0Jht1**_ _**S1111dar**_ _**J)utla**_ v. _**1\fohd .**_ _**.Jahaditr**_ _**Uahim**_ _**Vtnkatllra11Ja**_ _**Aiyar**_ _**j.**_ to all contracts theretofore made, in r~stJect of, under, or by virtue of, which aQy person other than the _zamindar_ may have ant right to any land, portion of his estate, or tenure, in the place in which such land ma.v be situate. " in 11ccorda.nce with the provisions aforesaid, the suit properties were transferred to the lllaharaja. of Bur<lwan, and on,June 3, 1899, he granted the same to the predecessors-in-title of defendants I to 7, who at that t.ime lwld the _Patni_ interest in respect of lot Ahiya.pur. Under the grant which has been marked as exhibit B, the yearly rental for the area was fixed at Hs. 126-8 as., out of which Hs. 84-4 as., had to bo paid to the _Panchayat_ within the 7th of Baisakh for being credited to the _Chaukidari_ Fund and the balan~o of Rs. 42-4 as., was to be paid to the _Zamindar_ within the month of Chaitra. Exhibit B also provides that in default. of payment of kist the lands a.re liablo to be sold in proceedings taken under the Bengal Hegula. tion VIII of 1819. Acting under thi11 clause, the Maharaja applied under s. 8 of the Regula.lion to bring the suit lands to sale for realisation of arrears, and at the auction held on :'.\fay 15, 1937, himself became the purchaser. On Fcbrnar}' 13, 1941, he granted t.lte lands again on _Patni_ to the appellant, who filed t.he suit, out of. wkich the present appeal arises, in the Court of the Subordinate .Judge, Burd wan, to recover possession thereof from the defendants alleging that they had trespassed thereon. The respondents contcstecl the suit on the ground that, in fa.ct, there were no arrears of rent dne under l<:xhibit B, and "that the sal~ was therefore void. The Subordin11.tc J udgc held that there were arrears of rent due from the respond(•nts, 1md that further as they had not sued to set aside the sale under s. 14 of the i{egulation within the time limited by law, they could not' set up its invalidity as a clefonce to the 11.ction in ejcctment. The defendants preferr~d an appeal against this judgment to the District Court of B11rdwan, .and -there raised a. new contention that under tire grant, Exhibit B, the suit lands became part •of lot Ahiyapur, and that a. sale of those ~nds was - _F_ .. S.C.R. SUPREME COURT REPORT~ 1313 illegal as bein~ a: sale of a portion of the _Patni._ The District Judge after obse.rving that the point was taken for the first time, held on a construction of Exhibit B that it created a new _Patni,_ and that it could .therefore be brought to sale, and he also held that s. 14 of the Regulation operated as a bar to the validity of the sale being questioned on the ground that the rent claimed was not, in fact, due. He accordingly dismissed the appeal. The respondents took the matter in second appeal to the High Court, and that was heard by a Bench consisting of Das Gupta and Lahiri JJ. who differed from the District Judge both on the construction of Exhibit B and on the bar of limitation based on s. 14 of the Regulation. T.hey held that the effect of Exhibit B was merely to make the suit lands part and parcel of the _Patni_ lot Ahiyapur, and that, therefore, the sale of those lands only was bad, as being a sale of a part of the _Patni._ They further held that as such a sale was void, s. 14 of the Regula.tion had no application. They accordingly allowed the appeal, and dismissed the suit. It is against this judgment that the present appeal has been brought on a certificate granted by the High Cburt under Art.133(l)(a). Mr. N. C. Chatterjee for the appellant urged the following contentions in support of the• appeal: **(1)** The defendants did not raise either in the written statement or during the trial, the plea that under the sanad, Exhibit B, the _Chaukidari Chakaran_ lands _**Radha Sundar**_ _**Dutta**_ v. _**f\.1 ohd.**_ _**j**_ _**a hadur**_ _**Rahim**_ compriseq therein became part of the _Patni_ settlement of lot Ahiyapur, and, in consequence, their sale was b11d as being of a part of the _Patni,_ and lhe learned Judges should not have allowed that point to be raised in appeal. (2) Exhibit B properly construed must be hel<l to create a new _Patni_ distinct from lot Ahiyapur, and its sale is therefore valid. !3) Assuming that the sale is invalid as being of a part of a tenure, the only right of the defendants was to sue to have it set aside, as provided in s. 14. of the Regulation, and that not having been done, •it is not open-to them to attack it collaterally in these proceedings. We see" no subs'tance in the first contention. It is _**V enkatarama**_ _**Aiyar**_ _]_ . ###### ' 1314 ~UPRE~lE COURT REPORTS [1959] ###### .... .. _**Rddha**_ _**Stfndcn·**_ _**D11lla**_ v. _**Mohd.**_ _**j**_ _**ahadur**_ true that the deft>ndants did not put /orward in the trial Court the plct~ that.the effect of Exhibit B was to incorporate the suit lands in lot Ahiyapur _Patni,_ and that, in consequence, the sale was illegal tis being of a part of tho _Patni._ On the other hand, the ivritten stat~rnent. proceL'<ls on the view that Exhibit B created a new _Patni_ unconnected with lot Ahiyapur, and tho only defence raised on that basis was that no arrears of rent were due under Exhibit B, and that the sale was therefore invalid. But the true nature of the grant under Exhibit B is a matter to be decided on a construction of the terms of the document, and th:~t is a question of law. It is argued for the appellant that it would be propl'r in determining the true character of the grant under Exhibit B to take into account surrounding circumstances, tlmt to ascertain what those circumstances are, it will be necessary to take evidence, and that, in consequence, a question of that kind could not he permitted to be agitated for the first time in appeal. But it is well-settled t.hat no evidence is admissible on a question of constructioi1 of a contract or grant, which must be based solely on the terms of the documeut., there being no suggestion before us that there is· any dispute as to how tire contents of the document are rehited to existing facts. Vide _Balkishen ·Das_ v. _Ler,ne_ <1) and _./l!aumJ_ _](yin_ v. _Ma Shwe_ _La(')._ It should, moreover, be mentioned that when the defendants sought to raise this contention in their appeal in the District Court, no objection was taken by the plaintiff thereto. Under the circumstances, the learned Judges were right iri allowing _**Ralii,,,**_ _**V tnkatarama**_ _**A1'yar**_ _**J.**_ thi~ point to be taken. This contention must therefore be rejected. The next point for determination is as to the true character of tho grant under Exhibit B, whether it amounts to a new _Patni_ with reference to the _Chaukidari_ _Chalcaran_ lancls as contended for b;y the appellant, or whether it incorporates those lands in the _Patni_ of lot Ahiyapur, so as to mako them part and parcel· of ~he lands comprised therein, as is ruaintaint)cl by the respondents. To appreciate the - - (1) (1899) L.R. 27 I.A. 58, 65. . (2) (1917) L.R. -14 I.A. 236, 243. ### . , # . S.C.R. I ##### SUPREME COURT REPORTS • 1315 true position, tt 'is necessary to examine what the rights of the _Zamindar_ and 'of the _Patnidar_ were with respect to _Chaukidari dhakaran_ lands at the time of the grant, Exhibit B. These lands had been originally set apart as remuneration for the performance of services by the village chaukidars as watchmen, and for that reason when the village was granted to the _Zamindar_ in permanent settlement, the . income therefrom was not taken into account in fixing the _jama_ payable .by him, though they passed to him under the permanent settlement. Then came the Village Chaukidari Act, and under that Act the Government put an end to the services of the Chaukidars as village watchmen, resumed the lands arni imposed assessment thereon, and, subject to it, transferred them to the _Zaminda?';_ and where the _Zamindar_ had already parted with the village in which the lands were situate, by granting _Patni,_ it became necessary to define the ·rights of the _Zamindar_ anp the _Patnidar_ with reference to those lands. •Dealing with this matter, s. 51 of the Act provides that the title .of the _Zamindar_ on resumption and transfer by the Government iihall be subject to " all contracts theretof9re made". Under this section, the _Patnidar_ would be entitled to the _Chaukidari Chakaran_ lands in the same right and on the saine ·terms on which he held the village in which they are situate. The nature of this right has been the subject of consideration in numerous authorities, and the law on the subject.is well-settled. In _Ranjit Singh v. Maharaj_ _Bahadur Singh_ ('J, it was held by the Privy Com1~il that though the reservation under s. 51 is of rights under contracts made by the Zamindar and the word " contract" primarily means a transaction which creates personal obligations, it might also refer to transactions which create real rights, and that it was in that Jlense the word was used in s. 51, and that accordingly the _Patnidar_ was entitled to institute a suit against the _Zamindar_ for possession of those lands and was not obliged to sue for specific perfor"mance. Bpt this d_oes not mean that the _Patnidar_ is (1) (1918) L.R. 45 !.,\., 162. _**RiJdha**_ _**Sundar**_ _**Dutta**_ v. Af _ohd. ]_ _**ahadur**_ _**Rahim**_ _**V enkutaramu**_ ' _**Aiyar**_ _]._ .. , #### . **167** ~ .. . . _**Radha**_ _**Sundar**_ _**Dutta**_ v. _,\f_ _**ohd.**_ _**] ahadwr**_ _**Rahim**_ _**V enkatar:ima**_ _**Ai)•ar**_ _]._ I 1316 SUPREME COURT REPORTS [1959) entitled t-0 hold the lands free of all' ~ligations. Ho is under a liability to R~Y to the _Zamindar_ tho assessment due thereon, when it is fixed under s. 50, and also a share of profits. Vido _Bhupendra Narayan_ _Singh_ v. _Narapat Singh('),_ where it was hekl by the Privy Council that when _Chaukidari Chakaran'_ lands included in a _Patni_ settlement had been rosurned and transferred to the _Zamindar_ under s. 51 of the Act, he is entitled to the payment of a fair and equitable rent in respect thereof, and that the fixing of the rent is a condition t-0 the _Patnidar_ being put in possession. Vide also _Rajendra_ _Nath Mukherjee_ v. _Hiralal_ _Mukherjee(')_ and _Gopendra Chandra_ v. _Tarapra-_ _sanna_ ('). These being the rights and obligations of tho _Zamindar_ and the _Patnidar_ under s. 51 of the Act, a grant of the _Chaukidari Chakaran_ lands by the former to the latter serves, in fact, two purposes. It recognises that the grantee is entitled t-0 hold those lands by virtue of his title as _Patnidar-of_ the vill!\ge of which they form part, and it fixes the amount' payable by him on account of assessment and share of profits. The questit>n then arises as to what the exact relationship is in which the new grant stands t-0 the original Patni grant. Now, whens. 51 of the Act recognises'a.nd saves rights which had been acquired under contract with the _Zamindar,_ its reasonable implication is that the rights so recognised arc the same as under the contract, and that, in consequence, the settlement of the _Chaukidari Chakara,n_ lands in _Pptni_ must be taken to be a continuance of the _Patni_ of the villa.go in which they are included. J~ut it is open to the parties t-0 agree that the _Chaukidari_ _Chakaran_ lands should form a new and distinct _Patni,_ and the result of such an agreement will be that while tha grantee will hold those lands in _Patni_ right, that is to say, the tenure will be perma,nent, h,eritablc and alienable so far as his liability to pay _jania_ and the corresponding right of the _Zamindar_ to sell it 11nder .the Regulation if there is any default in the (1) (1925) L.R. 52 I.A. 355. (2) (1906) 14 C.W.N,995 . - (3) (1910) 0 [1.L.R. ][37 ][C&I. ] [598. ] I , ## . • 1 .. S.C.R. SUPREME COURT REPORTS **1317** payment thereoi 'are concerned, the new grant will be an entity by itself independent•of the original _Patni._ That that could be done by agreement of parties is w\Il.settled, and is not disputed before us. If that is the true position, then the real question to be considerec! is, what is the agreement of parties with reference to the _Chaukidari Chakaran_ lands, whether they " are to be constituted as an independent _Patni_ or whether they should be treated as a continuation of the original _Patni_ or an accretion thereto, and the answer to it must depend on the interpretation to be put on the grant. It is now necessary to refer to the material terms of Exhibit B under which the _Chaukidari Chakaran_ lands wet'l'l granted to the predecessors of respondents **1** to 7. It begins by stating that the _Patnidars_ of lot Ahiyapur appeared beforethe _Zamindar_ and "prayed for taking _Patni_ settlement of the said 84 Bighas 18 Cottas of land at a yearly rental of Rs. 126/8 as.", and then prqvides how the amount is to be paid. Then there is 'the following clause, which is important: "You will pay the rent etc., Kist after Kist according. to the Kistbandi in accordance with law, and if you do not pay the same, I will realise the arrearn together with interest and costs by causing _the afore-_ _**Radha Sunday**_ _**Dutla**_ v. _**A1 ohd.**_ _**j ahadu,.**_ _**Rahitn**_ _**V e.nkatarama**_ _**Aiya,.**_ _]._ _said lands_ to be sold by auction by instituting proceedings under Regulation VIII of 1819 and other laws which are in force or will come into force .... ". Then follow provisions relating to the transfer by the _Patnidars_ of " the aforesaid lands", succession by " inheritance or by will to "the aforesaid lands " and the regi~tration of the name of the transferee or successor in the _Sherista,_ and it is expressly stated that " so long as the name of the _new Patnidar_ is not recorded in the _Sherista,_ the former _Patnidar_ whose name is recorded in the _Sherista_ will remain !table _for_ _the rent,_ ~nd on a sale of the Mahal by auction on institution of proceedings against him under Regulation VIII of 1819 or any other law that ;;vill _he_ in forc"l for realisation of arrears of rent, no objection t:Jiereto ~ __.1 on the _part-of_ _the_ _new Patnidar_ can be entertained." 1318 I 1 SUPREME COURT REPORTS [1959) _**Radha Sundar**_ _**Dutta**_ v. ~\f _**ohtl.**_ _**J**_ _**ahadur**_ Then, there arc two clauses on whicl\ iho respondents rely, and they are in these terms: " If in future it tra1f.~pires that any other persons besides yourselves htivc _Patni_ right,• in the _Patni_ int.crest. of t hr. said lot Ahiyapur, such persons shall hav~ _Patni_ rights in these _Cha/co.ran_ lands also- to the same extent and in the same manner as they will be found to have int<Jrcsls in the _Patni_ of the aforesaid lot, and if for the s::1id reason any person puts forward any claim against the Raj Estate and the Raj Estate has to suffer any loss therefor, you will make good the said claim and the loss without any objection. If in future t.he _l'atni_ interest in tho said lot Ahiyapur he transforred for liabilitv for arrears of rent or if the same comes to an end for any reason, then your _P11tni_ interest in these _Chak.aran_ lands also will bo transferred or will come to an end alongwith tho original _Patni_ simultaneously." _**Rahim**_ **l'** _**6nlralara1na**_ _Aiyar_ _]._ lt is on these two clauses that the learned Judges in the Court below have based their dct)ision that J,lie intention of the parties was to treat the suit lands air part of the _Patni_ of lot Ahiyapur. Now, it cannot be disputed that the ~wo clauses aforesaid afford considerable support to the conclusion to which "the learned Jud~es have come. The first clause provides that if besides the grantee under Exhibit B, there were other persons entitled to _J'atni_ rights in lot Ahiyapur, those persons also shall have _Patni_ rights in _Chaukidari_ _Chakaran_ litnds to the same extent as in _Patni_ Ahiyapur. That clearly means that tho .rights conterrcd on the grantees under Exhibit B harn their roots in the _l'atni_ lot of Ahiyapur. Likewise., the provision in the last clause that the grantees will lose their rights to tho _Chaukidari_ _Cha/co.ran_ lands if their interest in Ahiyapur Patni was sold cloarly suggests that tho grant under Exhibit B is to be an annexe to the grant of Ahiyapur. As against this, the appellant argues tha't the othor clauses in Exhibit B quoted above strongly support "his contention, and that when the document is read .. _<.....I_ ###### .. - as a ·whole, it unmistakably reyeals an.intention to treat the suit l~nds as a distinct _Patni,_ \Ve must now ### . . - .. I S.C.R. SUPREME COURT REPOR'.J.IS 1319 refer to thes~ Gia.uses. Exhibit B begins by reciting that the grantees desired.to take a _Patni_ settlement of 84 Bighas 18 Cottas, which i~ some indication, t~o~gh not very strong, that it is to be held as a d1stmct entity. We have then the clause which provides that whgn there is default in the payment of kist, tbe lands are liable to be sold in proceedings instituted under the Regulation. Now, the law had long been settled that a sale of a portion of a _Patni_ is bad, but that if by agreement of all the parties interested different portions thereof are held under different sanads, which provide for sale of those portions for default in payment of kist payable respectively thereon, then each of those sanads might be held to have created a .separate _Patni_ in respect of the portion comprised therein. Vide _Mohadeb Mundul_ v. _J"Jfr._ _H. Cowell_ ( [1] ) and _Monomothonath Dev and another_ v. _Mr._ _G._ _Glascott_ ('). \Vhen, therefore, the _Zamindar_ and the _Patnidar_ agreed under Exhibit B that, the lands com prised ~herein could be sold under the Regula ti on ' when there was default in payment of kist fixed therefor, they must clearly have intended that those lands should be constituted into a distinct _Patni._ Otherwise, •the clause will be inoperati'7'e and void, and indeed, the learned Judges in the Court below have, on that ground, declined to give any effect to it. Now, it is a settled rule of interpretat.ion that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the tirinciple expressed in the maxim _"ut_ _res magis_ _valeat quam pereat_ ". What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate _Patni,_ and at the same time reconcile the last two clauses with that•construction. Tali:ing first the provision that if there be other persons entitled to the _Patni_ of lot Ahiya pur they are to have the same rights in the land comprised in Exhipi.t B, _**Radha**_ _**Sttndar**_ _**Dutta**_ v. _**Mohd.**_ _**j ahadur**_ _**Rahi11i**_ _**V enkatarama**_ _**Aiyar**_ _]._ **(1) (1871)** **15** **Weekly Reporter 445.** (2j (1873) 20 Weekly Reporter 275. _**lJitlta**_ v _**Alohd. Jaliadi.r**_ _Ra_ _Iii'"_ _**Venkatara1no**_ _**Aiyar**_ _**J.**_ I - [• ] 1320 SUPREME COURT REPORTS [1959] that no doubt posits the continuance in !Jiosc persons of the title under the Qrigjnal _Patni._ But the true purpose of this clause is, .in our opinion, not so much t-0 declare the rights of those other persons which rest on statutory recognition, but t-0 provide that the gra.n!Re,<; under the document should take subject to those rights. That that is the purpose of the ela.use is clear from the provision for indemnity which is contained therein. .Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new _Patni_ in favour of the grantees thereunder, it is difficult to see how the reserrntion of the rights of the other _Patnirlars_ of lot Ahiya.pur, should such there be, affects that conclusion. We are unable t-0 see anything in the clause under, discussion, which militates against the conclusion that Exhibit B creates a. new Patni. p•~rcel thoreo{. aud tla,re was no need for a provision Ruch as is ma.de in the last clause. But that. clause would serve a real purpose if the _Patni_ under Exhibit _B_ is construed as separate from t.ha.t of lot Abiyapur. In that view, when the major _Patni_ of lot Ahiyapur is sold, the intention obviously is that tho rninoi; _Patni_ under Exhibit B, should not stand out but be cxtinguished,-a result which could be achieved only by a special provision. We should finally refer to the chuses in Exhibit B pro\'iding for transfor of or succession to the _Chaukidari Chal:aran_ lands and for the recognition of such transferee or successor as a. _Patnidar_ of those lands. It is clen.r from these prt>visions that such a transferee or successor is t-0 hold the lands a.s a _Pa{nirlat,_ different from the _Patnir/,ar_ of lot Ahiyapur .• Rea.ding these clauses along with the last c~use, it seems clear that the intention•of the tiarties Then there is the clause as t{> the cesser of interest of the grantees in the _Chaukidari Chakaran_ lands whon their title t-0 lot Ahiyapur comes to an end, a11d according to the respondent.s, this shows that under Exhibit _B_ the _Chaukiduri_ _Cha.kara.n_ lands are treated as part and parcel of the Ahiya.pur _Patni._ If that were so, a sale of lot Ahiya.pur must C'a.rry with it the _Chaukidari_ _Chakaran_ lands, they hcing _ex hypothe.si,_ part and - .. - .; I - S.C.R. SUPREME COURT REPORtS 1321 was that whi~e 'a transfer of the Ahiyapur _Patni_ by sale should extinguish th@ tltle of the holders of the _Chaukidari Chakaran_ lands 'a transfer of these lands would have no effect on the title to the lot Ahiyapur Patni. Construing Exhibit B, as a whole, we are of opirtion that the intention of the parties as eX!Jressed therein was that the _Chaukidari Chakaran_ lands should be held as a distinct _Patni._ We must now refer to the decision on which the learned Judges in the Court below have relied in support of their conclusion. In _Kanchan Barani Debi_ v. _Umesh Chandra_ ( [1] ), the facts were that the Maharaja of Burdwan had created a _Patni_ of lot Kooly in 1820. The _Chaukidari Chakaran_ lands situated within that flillage were resumed under the Act and transferred to the _Zaminclar_ who granted them in 1899 to one Syamlal Chatterjee in _Patni_ on terms similar to those in Exhibit B. In 1914 the _Patni_ lot Kooly was sold under the Regulation, and purchased by Smt. Kan,chan Barani. Debi. She then sued as such purchaser to recover possession of the _Chaukidari Chakaran_ lands. The defendants who represented the grantees under the _Patni_ settlement of 1899 resisted the suit on the ground that the sale of _Patni_ Kooly did not operate to vest in the purchaser the title in the _Chaukidari_ _Chakaran_ lands, as they formed a· drstinct _Patni._ Dealing with this contention, B. B. Ghose J. who delivered the judgment of the Court, observed : " It is certainly open to the only two parties concerned t,o alter the terms of the original patni if they chose to do so; and what we have to see is whether that-.was done. In order to do that, we have to examine the terms of the pattah by which the Chaukidari Chakaran lands were granted to Syamlal Chatterjee." The learned Judge then refers to the two,clauses correspQnding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original _Patni_ was created, and that, in consequence, the purcltaser was entitled to the _Patni_ as it was createa in 182(1, (x) A.l.R0 1925 Cal. 807. _**Radha**_ _**Sundar**_ _**D11tta**_ v. _**Mohd.**_ _**jahadur**_ _**Rahim**_ _**V ankatarama**_ _**Aiyar**_ _]._ _**R11dha**_ -,·1111J~11 _**D11tta**_ v, _**1llohd. Jah:idur**_ _**D11tta**_ _**Utihi•n**_ _**Ve11kaJar(Ht1a**_ _**Ai}·ar**_ _**J.**_ I - [, ] 1322 SbPREME COURT REPORTS (1959] a.nd that tho plaintiff wa.s entitled to tlieoposs~ssion of the _Chaukidari Chakara'lt_ lands a8 being pa rt of the _Palni._ :Now, it is to be ~bscrved that in decicling that the _Chaukidari Chakaran_ lancl8 gmnted in 1899 became merged is lot Kooly, a8 it was in 1820, the lcarnG'Ci Judge did not consider the effect of the claust: pwvid· ing for sale of those land8 as a distinct entit v under the provisions of the Hegulation when tliere was default in the payment of rent payable thereCtn under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really i11consistent with the earlier clauses which support the view that the grant under Exhibit Bis of a distinct _Putni._ :Noll du we agree with them that the earlier clause providing for the sale of the _Chaukidari Chakaran_ lands in default of the payment. of _jamu,_ should be construed so a;; not to override the later clauses. If, in fact, there is a conflict between tho earlier clause and the latnr clauses and it is not possible to give effect to all of them, thcn 0 the rule of construction is well-established that it is the earlier clause that must override the later elauAes and not _vice_ _versa._ In _F'orbes_ v. _Git(1),_ Lol'd \Vren: bury stated the rule in the following terms: " If 111 & <fued an earlier clause is followed by a later clause which destro) s altogether the c•bligation created bv the earlior clause, the later clauso is to be !'ejected repugna11t and the earlier clause pre\'ails. as ln this case the two clauses crrnnot be reconciled and the earlier pro1•isio11 in the deed prevailR <;ver the later:" We accordingly hold that Exhibit B created a new _Patni_ and that the sale of the lands corn prised therein •• .. i~ not bad as of a portion of a Pat11i. We a.re c<inscious that we are diffcri11g from the learned J udgcs of the Court below on a quest ion r~lat­ ing t-0 a local tenure on which thefr upinio11 is, by mason of the special knowledge and experience which thc.i"havc of1t, eniitlecl to the greatest weight. lt is ~so true that the decisio11 in _Kanchan .Barani J)ebi_ v. (1) (19»] I A.C; 256, 0 [2)9· ] - .. •• _.._ _}_ (I) A.I.R. 1925 C&l. 807 . - I ###### ' [• ] S.C.R. SUPREME COURT REPORTS [1 ] 1323 _Umesh_ Ohandr~ has stood now for over three rl decades, though it is pertirnmt to add that its correctness does not appear to have come up for consideration in any subsequent decision of the Calcutta High Court, prior to this litigation. But then, the question is one 6f construction of a deed, and our decision •that the effect of an agreement of the kind in Exhibit B was to constitute the _Ohaukidari Ohakaran_ lands into a distinct _Patni_ will not result in any injustice to the parties. On the other hand, the rule that a portion of a _Patni_ should not be sold being one intended for the benefit of the _Patnidars,_ there is no reason why an agreement entered into by them with the _Zamindars_ providing for the sale of a portion, thereof-which is reaJly to their advantage, should not be given effect to. Having anxiously considered the matter, we have come to t)le conclusion that Exhibit B creates a distinct _Patni,_ that the sale thereof on May 15, 1937, is valid, and that the plaintiff has therefore acquired a good title to, the suit lands under the grant dated •February 13, 1941. In this _view,_ it is unnecessary to express any opinion on the point that was the subject of considerable argument before us as to whether it is _**Radha Sundar**_ _**Dutla.**_ v. _**Mohd.**_ _**jahadttr**_ _**Dutla.**_ _**Rahi1n**_ op~n to the defendants to raise the invalidity of the sale held on May 15, 1937, in answer to this action, they not having taken steps to have set iiJ. aside, as provided in s. 14 of the Regulation. In the result, the appeal is allowed, the judgment of the lower Court reversed and that of the District Judge restored, _wjth_ costs throughout. _**Venkalarama**_ _**Aiyar**_ _]._ _Appeal allowed ._ . .