Bijoy Gopal Mukerji v. Nil Ratan Mukerji — 1903 DIGILAW 173 (CAL)

JUDGMENT Sir Francis W. Maclean, K.C.I.E., C.J. - This is a suit by four out of the seven reversionary heirs of a deceased Hindu, subject to the interest of his widow and its object is to have a certain ijara lease for sixty years, dated September 1863 and all the dar-ijaras and se-ijaras and other rights subordinate thereto declared inoperative as against the Plaintiffs for khas possession of the property in dispute and for mesne profits. 2. The suit was substantially decreed by the Subordinate Judge of Nadia; and against that decision six appeals have been presented, one of them, No. 71 of 1899 by the Plaintiffs, on the ground that the Court below had not given them all to which they are entitled, whereas appeals Nos. 74, 87, 94 and 99 are by those claiming under the ijara, whilst appeal No. 175 relates to a very small matter ; and the Plaintiffs and the Appellant in that appeal have settled it. 3. The following is a short history of the case: One Chunder Bhusan Mukherjee, from whom the title of the Plaintiff is traced, died in 1882, without any son, but leaving his wife, Shoyamoni, him surviving. At that time she was a child, apparently about ten or eleven years old; she survived her husband for more than 60 years and died in October 1893. She would appear to have been dispossessed of the property to which she was entitled as heiress of her husband by a relation of his, one Banian Das Mukherjee and in 1844 she instituted a suit to recover the property inherited from her husband: the litigation Jasted from 1844 to 1858, when her right, which had been decreed by the first Court and by the Sudder Dewany Adalut, was ultimately affirmed by the Judicial Committee of the Privy Council in 1858. She would appear to have experienced great difficulty in reaping the advantage of her decree owing to the opposition of Baman Das: she obtained possession of part of the property only and in September 1863 she executed the ijara lease now complained of. The ijaradars under the ijara were Annoda Prosad Mukerjee and Saroda Prosad Mukerjee, the former of whom was, at that time, one of the reversioners, whilst Saroda Prosad Mukerjee was the sen of another reversioner Gouri Prosad Mukerjee. The ijaradars under the ijara were Annoda Prosad Mukerjee and Saroda Prosad Mukerjee, the former of whom was, at that time, one of the reversioners, whilst Saroda Prosad Mukerjee was the sen of another reversioner Gouri Prosad Mukerjee. Annoda Prosad Mukerjee, who died in 1882, was the father of the present Plaintiffs-and of Upendra Lall Mukerjee, who is also one of the reversionary heirs and who declining to be a Plaintiff was made a Defendant in the suit. The other reversionary heirs are Tara Nath Mukerjee and Nil Ratan Mukerji and they are Defendants. The rental reserved under the ijara was Rs. 12,330 odd; the term was for sixty years from the date of the lease and the ijaradars were to pay out of the above rent Rs. 7,030 odd, the collectorate Sudder revenue. 4. It is objected for the Plaintiffs that Shoyamoni had no power to grant a lease of the property beyond the period of her own life. 5. The Defendants are those claiming under the ijaras dar-ijaras and se-ijaras. 6. The Plaintiffs claim that the ijara lease for the period beyond the life of the widow is an incumbrance on the estate, that they are entitled to have it set aside and as I have already pointed out, they ask for that relief with a view to obtain khas possession of the property. 7. I have already mentioned that the widow died in October 1893 and the suit was instituted on the 30th of April 1897, more than three years after her death. 8. The Defendants contend (i) that the suit is barred by limitation ; (ii) that the lease is binding upon the Plaintiffs, as it was executed for legal necessity and with the consent of the then reversioners; and (iii) that by acceptance of went and allowing the ijaradars to go on paying the Government revenue, the Plaintiffs must be taken to have elected in favour of the lease. 9. The Defendants are in possession and if they are right on the first point, the others become immaterial. 10. 9. The Defendants are in possession and if they are right on the first point, the others become immaterial. 10. The case of the Defendants is that the Plaintiffs cannot recover possession of the property without first setting aside the ijara lease of 1863; that that lease is an obstacle in their path which they musk get rid of; that the form of their suit recognizes that this if so; and they contend that, under those circumstances, the case falls within Article 91 of the Second Schedule to the Limitation Act, which runs as follows:--"To cancel or set aside and instrument not otherwise provided for," the period of limitation being "three years from the time when the facts entitling the Plaintiff to have the instrument cancelled or set aside become known to him." 11. The Plaintiffs, on the other hand, say that the suit is one merely for the recovery of possession of immoveable property to which they become entitled on the death of the widow and they rely upon Article 141 of the Schedule, which runs as follows:--"Like suit," that is, a suit for possession of immoveable property "by a Hindu or Mahomedan entitled to the possession of immoveable property on the death of a Hindu or Mahomedan female," the period of limitation is "twelve years" from the time "when the female dies," 12. These being the contentions of either side, we have first to consider whether the lease in question was void or voidable. This is set at rest by the Judicial Committee of the Privy Council in the case of Modhu Sudan Singh v. Rooke ILR (1897) Cal. 1 : L.R. 24 IndAp 164, where it was held that a lease similar in principle to that now under discussion was, on the death of the widow, only voidable and not of itself void. Their Lordships there say at page 8: In considering their effect it must be observed that the putni was not void; it was only voidable; the Raja might elect to assent to it and that it was valid. Its validity depended upon the circumstances in which it was made. The learned Judges of the High Court appear to have fallen into the error of treating the putni as if it alsolutely came to an end at the death of the widow. 13. Its validity depended upon the circumstances in which it was made. The learned Judges of the High Court appear to have fallen into the error of treating the putni as if it alsolutely came to an end at the death of the widow. 13. This case (1) has been followed by this Court in the case of Sadai Naib v. Serai Naik ILR (1901) Cal. 532. 14. In the present case it may be remembered that the defence of legal necessity and of election to treat the lease as valid, if substantiated, would show that the lease could not be treated as ipso facto void. The Plaintiffs evidently treat the lease as one that must be avoided by being set aside; and the questionn before us appears to resolve itself into this--whether they could obtain khas possession without having the lease set aside. If they could not, Article 91 and not Article 141, would seem to govern the case. 15. There appears to us to be no real difference in principle between the present case and those cases in which the Judicial Committee has held that when a Plaintiff seeks to recover khas possession of property and he cannot successfully do so unless and until he displaces an apparent adoption, which stands in his way, his suit must be regarded as one to obtain a declaration that the adoption is invalid and he must bring it within the period specified in Article 118 of the Second Schedule to the Limitation Act. I refer to the case of Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaodhri ILR (1886) Cal. 308 : L.R. 13 IndAp 84 and to the observations of their Lordships in the case of Malkarjun v. Narhari ILR (1900) Bom. 337 : L.R. 27 IndAp 216. In the latter case their Lordships say at page 350:--"Then the suit, being rightly described as one to set aside an adoption, attracted the consequence that the time for suing ran from the date of the adoption and that the suits of 1873 and 1874 were barred. 337 : L.R. 27 IndAp 216. In the latter case their Lordships say at page 350:--"Then the suit, being rightly described as one to set aside an adoption, attracted the consequence that the time for suing ran from the date of the adoption and that the suits of 1873 and 1874 were barred. It is obvious that the expression 'set aside a sale' is not attended by any such difficulty, because a sale, valid until set aside, can be legally and literally set aside; and anybody who desires relief inconsistent with it may and should pray to set it aside." The same view was held by the Privy Council in the case of Mohesh Narain Munshi v. Taruck Nath Moitra ILR (1892) Cal. 487 : L.R. 20 IndAp 30 and followed by the Full Bench of the Bombay High Court in the case of Shrinivas Murar v. Hanmant Chavdo Deshapand ILR (1899) Bom. 260. 16. Again, the same principle would appear to be involved in the cases of Janki Kunwar v. Ajit Singh ILR (1887) Cal. 58 : L.R. 14 IndAp 148, Mahabir Pershad Singh v. Hurrihur Pcrshad Narain Singh ILR (1892) Cal. 629, Ghunder Nath Rose v. Ramnidhi Pal (1902) 6 C.W.N. 863 and Shrinivas Murar v. Hanmant Chavdo Deshapande ILR (1899) Bom. 260. The only case in this Court which would appear to take a contrary view is that of Sheo Shankar Gir v. Ram Shewak Chowdhri ILR (1896) Cal. 77, but there the document was treated as void and not voidable. 17. It seems to me to be a little foreign to the present enquiry to discuss the cases of Jagannath Prasad Gupta v. Runjit Singh ILR (1897) Cal. 354, Earn Chandra Mukerjee v. Ranjit Singh ILR (1899) Cal. 242 and of Lali v. Moorlidhar ILR (1901) All. 195, for these were cases the converse of that in the Privy Council--Jagadamba Chaodhrani v. Dakhina Mohun Roy Chaoduri ILR (1886) Cal. 308 and that of Shrinivas Murar v. Hanmant Chavdo Deshapande ILR (1899) Bom. 260. 18. In the case before us the Plaintiffs expressly ask to have the ijara lease set aside and cannot recover possession unless it is set aside. 19. 308 and that of Shrinivas Murar v. Hanmant Chavdo Deshapande ILR (1899) Bom. 260. 18. In the case before us the Plaintiffs expressly ask to have the ijara lease set aside and cannot recover possession unless it is set aside. 19. From these authorities it would appear that if the Plaintiffs can recover possession without setting aside the lease, then Article 141 would apply and not Article 91; but if they cannot so succeed without getting rid of the lease, then the case would fall within Article 91. 20. It is contended, however, for the Plaintiffs that Article 91 cannot apply, because the time from which the period begins to run is when the facts entitling the Plaintiffs to have the instrument cancelled or set aside become known to them. 21. It has not been disputed that these facts were known to them on the death of the widow and probably long before, for the father (Annoda) of five of the reversioners was himself one of the ijaradars and his ijara interest passed under his will. But it is said that these facts might have become known to them during the life of the widow, in which case they would have had to bring their suit during her lifetime If well founded, I scarcely see how tins argument would assist the Plaintiffs: it would only mean that they were not necessarily entitled to three years from the death of the widow.; but the argument does not appear to mo to be sound, because the lease was perfectly good during the widow's life and the reversioners did not become entitled to have the instrument set aside until after her death and her death is one of the elements which entitled them to have it set aside. 22. In the ease suggested the Plaintiffs might haw proceeded under Article 125 which does not appear to clash, as has been suggested, with the view we take as to the applicability of Article 91. If a reversioner desire to set aside a deed executed by a Hindu widow, which is voidable as against him, the Legislature may well have thought that it was desirable that such suits should be brought within a much shorter period than that prescribed for the recovery of immoveable property in ordinary cases. 23. If a reversioner desire to set aside a deed executed by a Hindu widow, which is voidable as against him, the Legislature may well have thought that it was desirable that such suits should be brought within a much shorter period than that prescribed for the recovery of immoveable property in ordinary cases. 23. On these grounds I think the suit was barred by limitation and it must be dismissed with costs. 24. The result will be that appeals Nos. 74, 87, 94 and 99 will be allowed with costs and appeal No. 71 will be dismissed with costs. Appeal No. 175 was compromised. 25. As between the Plaintiffs and the Defendants Nos. 18 to 24, both inclusive, we on the first day of the hearing, i.e., at the hearing of appeal No, 71, sanctioned a compromise which the parties had come to. That was before the case had been argued. That compromise will stand and will not be affected by the judgment which has just been delivered as between the Plaintiffs and the other Defendants. Geidt J. 26. I concur.