THAKUR RUDRESWARI PRASAD SINHA versus SRIMATI RANI PROBHABHATI AND OTHERS

Citation: [1952] 1 S.C.R. 64 · Decided: 26-10-1951 · Supreme Court of India · Bench: M. PATANJALI SASTRI · Disposal: Dismissed

Judgment (excerpt)

1951 
Collector of 
Bombay 
v. 
Municipal Cor-
poration of the 
City of Bombay 
and Others. 
1951 
Oct. 26. 
64 
SUPREME COURT REPORTS 
[1952] 
is not being invoked here as in that case, to clothe a 
person with title which he cannot acquire 
except by 
the pursuit of or in conformity with certain legal forms. 
Here, as pointed out already, the Corporation became 
the full and absolute owner of the site on the lapse of 
60 years from the date of the grant. 
Appeal dismissed. 
Agent for the appellant: P. A. Mehta. 
Agent for the respondent : R. A. Govind. 
THAKUR RUDRESW ARI PRASAD SINHA 
v. 
SRIMATI RANI PROBHABHATI AND OTHERS 
[PATANJALI SASTRI, MuKHERJEA, S. R. DAs and 
VIVIAN 
BosE JJ. J 
Ghatwali tenures-Nature and incidents-Alienability of Ze1nin-
dari Ghatwalis-Taluka Kakwara whether alienable. 
Taluk Kakwara was in its origin a Zemindari Ghatwali tenure 
and continued to be so, and was in fact treated 
as such ever 
since. 
Even if by virtue of Captain Browne's Sanad 
it 
became 
a Government Ghatwali tenure, then under the Sanad of Raja 
Kadir Ali or after the Permanent Settlement at any rate, it be-
came a Zemindari Ghatwali and 
as ·such alienable with 
the 
consent of the 
Zamindar according 
to 
the 
custom of Kharakpur 
judicially recognised. 
[Nature and incidents of Ghatwali tenures discussed] . 
. CIVIL 
APPELLATE 
JURISDICTION : 
Civil 
Appeal 
No. 75 of 1950. 
Appeal from Judgment of the High Court of 
Judicature at Patna dated 22nd November, 
1944, 
in 
Appeal No. 238 of 
1940 arising out of order dated 
13th July, 1940, of the Subordinate Judge of Bhagalpur 
in Mis. Case No. 
174 of 1939. The facts of the case 
appear from the judgment. The appeal was originally 
preferred to the Privy 
Council and was 
subsequently 
tranferred and heard by the Supreme Court. 
N. C. 
Chatteriee 
(B. Sen, with him), for the 
appellant. 
B. 
C. De (Ragunath 
]ha, 
with him) for 
the 
respondents. 
., 
S.C.R. 
SUPREME COURT REPORTS 
65 
1951. October 26. The Judgement of the Court was 
delivered by 
DAs. J.-This appeal has come up for hearing before 
us on transfer from the Privy Council. The appellant 
is the present holder of Taluk Kakwara- which apper-
tains to Mahalat Kharakpur. The respondents represent 
the Banaili Raj which has ·also acquired the 
Mahalat 
of Kharakpur. 
The respondents obtained a decree for 
Rs. 11;587-14-6 against the appeallanti for arrears 
of 
rent and cess and applied for execution of their. decree 
by the attachment and sale of Taluk . Kakwara. On 
August 29, 1939, the appellant judgementi-Oeb~or filed 
an objection under section 47 of the Code of Civil Pro-
cedure alleging that· as Taluk Kakwara was held on 
Gh<ltwali tenure it could not be sold in execution of a 
money decree. - This objection 
was rather 
too 
wide, 
for all lands held on Ghatwali tenure were not neces-
sarily inalienable. Indeed, in 
Kali Pershad 
Singh v. 
Anund Roy(1) which related to the Ghatwaii Mahal of 
Khara~a within the Mahalat of Kharakpur the evidence 
clearly established a number of instances in which 
there had been unquestioned 
transfers and sales ap-
plicable to Mahals in Kharakpur and it' was held by 
the Privy Council that the true view to take was that 
such a tenure in Kharakpur was not inallienable, and 
might be transferred by the Ghatwal or sold inexecu-
tion of a decree ·against him, if such tranfer_ or sale 
was assented to by the Zamindar. A sale at the inst-
ance of the Zamindar in execution 
of a decree for 
arrears of rent necessarily implies the existence of such 
assent. In the later case of Narayan Singh \'. Niranjan 
Chakravarati(2 ) which related to the Ghatwali Mahal of 
Handwa, Lord Sumner recognised that the decision of 
the Privy Council in the Kharna Ghatwali Mahal case 
was fully supported by the evidence adduced in that 
case and that that authority had been 
repeatedly 
followed and applied in India, and, so far as the reports 
showed, without proof of the wstom 
being required 
over again. Lord Sumner, however, pointed out 
that 
(1) (1887) L.R. 15 I.A. 18; I.L.R. 15 Cal. 471. 
(2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat. 184; A.I.R. (1924) 
P.C. 5. 
1951 
Thakur 
Rudreshwari 
Prasad Sinha 
v. 
Srimati Rani 
Probhabhati 
and ,others. 
Das/. 
1951 
Thakur 
Rudreshwari 
Prasad Sinha 
v. 
Srimati Rani 
Probhabhati 
and others. 
Das/. 
66 
SUPREME COURT REPORTS 
[1952] 
it was plain that as the custom depended on proof, 
and as the tenure in question was one in the Zamindari 
of Kh

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