Nanda Lal Mullick v. Kumar Arun Chandra Sinha — 1935 DIGILAW 151 (CAL)

JUDGMENT 1. Under the provisions of the Land Acquisition Act, amended by the Calcutta Improvement Act, premises No. 372 Upper Chitpore Road, commonly known as Lala Babu's Bazar was acquired for the Calcutta Improvement Trust under a declaration published on the 8th September, 1927. In pursuance of notices issued under secs. 9 and 10 of the Land Acquisition Act, four sets of claimants appeared before the Collector and filed their respective claims. The property in question was a debutter belonging to Sree Sree Gopal Jiu, the family deity of the Paikpara Sinhas of which the claimant No. 1 Kumar Arun Chandra Sinha is the present shebait. Claimant No. 2 Babu Nanda Lal Mullik was holding the property under a lease that was running. Claimant No. 3 Babu Gunendra Krishna Ray was a mortgagee from claimant No. 2, claimant No. 4, viz., minors, Kumar Bimal Chandra Sinha, Kumar Amaresh Chandra Sinha and Kumar Brindaban Chandra Sinha, sons of the late Raja Monindra Chandra Singha, represented by their grand-mother Rani Harsha Mukhi Dasi, form a group who claimed that the first named of them was entitled to be the shebait next after Kumar Arun Chandra Sinha. The Collector made his award on the 16th March, 1928, and took possession of the acquired property in May, 1928, as is stated in the judgment of the Court below, or on the 1st June, 1928, as has been stated before us by some of the parties. According to that award Rs. 507500 together with 15 per cent, thereon, namely an aggregate sum of Rs. 583625, was to be awarded to and apportioned amongst claimants Nos. 1, 2 and 3 as the value of the land and the structures, with the exception of Rs. 2046/15 which was to be paid out to the Corporation of Calcutta on account of arrears and taxes; and the value of certain fixtures, separately assessed, was to go to certain tenants to whom they belonged. The claimant No. 2 accepted the valuation made by the Collector. But the claimants Nos. 1 and 4 objected to the adequacy of the award, and the matter being thereupon referred to the tribunal, the tribunal made an enhanced award on the 27th March, 1929, increasing the valuation by Rs. 1,24,786/8/4. Before the Collector there was a contest between the claimant No. 2 and the claimants Nos. But the claimants Nos. 1 and 4 objected to the adequacy of the award, and the matter being thereupon referred to the tribunal, the tribunal made an enhanced award on the 27th March, 1929, increasing the valuation by Rs. 1,24,786/8/4. Before the Collector there was a contest between the claimant No. 2 and the claimants Nos. 1 and 4 as regards the title to the compensation money and the apportionment thereof and that matter was also referred to the tribunal where it formed a separate case. On the 21st September, 1928, an application was made on behalf of Jagadish Chandra Sinha, a minor represented by his mother Satarupa Dasi, stating that the claimant Nos. 1 and 2 had come to an agreement to refer the question of apportionment along with other matters to arbitration, and praying to be added as a party, so that the arbitration may be made and the question of apportionment decided in his presence. Notice of this application was served on all the parties, and in the presence of the parties who appeared,-the claimant No. 2 not appearing,-the said application was granted and the said minor Jagadish Sinha represented by his mother Satarupa Dasi was added as claimant No. 7. Seven issues were framed on the written statement which were filed by claimants Nos. 1, 2, 3 and 4, and the case proceeded to trial on the footing, which was admitted, that the property acquired was the absolute debuttar property of the deity Sree Sree Gopal Jiu. The President held that the whole" of the compensation for the land and the structures was to be awarded to the deity, and the amount being dealt with under sec. 32 of the Land Acquisition Act, the interest and other proceeds arising out of the investment would be paid out to the shebait for the time being. The claimant No. 2 has then preferred this appeal in which he has impleaded as Respondents the claimants Nos. 1, 3, 4 and 7. 2. One of the points urged on behalf of the claimant No. 2, as Appellant, is that the claimants No. 4 or the claimant No. 7 had no locus standi to contest the proceedings on the reference. On this question the issue that was framed ran in these words: Are the claimants Nos. 1, 3, 4 and 7. 2. One of the points urged on behalf of the claimant No. 2, as Appellant, is that the claimants No. 4 or the claimant No. 7 had no locus standi to contest the proceedings on the reference. On this question the issue that was framed ran in these words: Are the claimants Nos. 4 and 7 persons affected by the objections, regarding the right to the compensation money and the apportionment thereof, which have been taken on this reference? Are the claimants Nos. 4 and 7 persons interested' within the meaning of the Land Acquisition Act? Are parties Nos. 4 and 7 interested in the decision of the objection taken on the reference? Should claimants Nos. 4 and 7 be dismissed from the reference? 3. The learned President decided the first three parts of the issue in the affirmative, and the third (?) part in the negative. The debuttar was created by Rani Katyayani in 1268 (=1861). She constituted herself the shebait for the term of her life and directed that after her death her descendants in the male line should come in as shebaits in succession in order of seniority. The claimants No. 4 and No. 7 are her descendants in the male line. The shebait next previous to the claimant No. 1 was Kumar Birendra Chandra Sinha who was shebait from the 28th March, 1912, till his death on the 28th December, 1918, when claimant No. 1 came in as shebait. Claimants No. 4 in their written statement averred that one of them, namely Bimal, is the next in order of seniority among the male heirs in the line and as such is the person entitled to hold the office of shebait next after the claimant No. 1. This statement has not been controverted. That claimant No. 7, Jagadish, is the son of Birendra, is also an admitted fact. The learned President has therefore rightly observed that on the pleadings and admission of parties in this case it is not necessary to go into the question of the validity of the provision laying down the rule of succession to the shebaitship. That claimant No. 7, Jagadish, is the son of Birendra, is also an admitted fact. The learned President has therefore rightly observed that on the pleadings and admission of parties in this case it is not necessary to go into the question of the validity of the provision laying down the rule of succession to the shebaitship. He has said no doubt that on this admission and in the state of the pleadings it is not open to any of the parties in this case to go behind the position that the claimant No. 1 is the present sole shebait and that Bimal Chandra Sinha one of the claimants Nos. 4 is the person who stands, next to him in the line of shebaits. 4. By these observations he has obviously meant that for the purposes of this case only such was the position; the question of validity or otherwise of the provision itself not having been decided, no question of priority as between the claimants Nos. 4 and the claimant No. 7 or anybody else could have been intended to be decided. 5. Claimants Nos. 4 appeared in pursuance of a notice issued on them under sec. 9 of the Land Acquisition Act. they objected to the award made by the Collector and applied for a reference under sec. 18 of the Act and came before the tribunal on such reference. Apart from anything else, they could net, for the above reason, be dismissed by the tribunal from that reference. They claimed to be successively next in order of seniority in the male line after the present shebait, the claimant No. 1. The position of a shebait in relation to the next taker of that office being analogous to that of a Hindu female heir taking a limited estate in relation to the expectant reversioner, it is obvious that the claimants Nos. 4, or at any rate the eldest of them, namely Bimal, would be competent to institute a suit to challenge the validity of a transaction made by the claimant No. 1. And the other members of the said group may Well come in and be added as parties to such a suit, if instituted. 4, or at any rate the eldest of them, namely Bimal, would be competent to institute a suit to challenge the validity of a transaction made by the claimant No. 1. And the other members of the said group may Well come in and be added as parties to such a suit, if instituted. The claim of the claimant No. 2 in the present case being based upon a transfer made in his favour by the claimant No. 1, that fact, apart from anything else, would give Bimal, in conjunction with his brothers if he so chose, to commence a suit impugning the validity of the transfer. The right to bring such a suit would be sufficient interest to entitle the claimant No. 4 to ask for and obtain a reference, when the property itself was being converted by the acquisition into money, which was to be apportioned or paid out. In sec. 3, cl. (b) of the Land Acquisition Act the expression "person interested" has been denned as including all persons claiming an interest. So long as the claim itself is not a bogus or maid tide claim as distinguished from a claim which is not well-founded or unsubstantiated, the character required is fulfilled. Next reversioners in circumstances mentioned above have been, held to be persons interested within the meaning of the expression [see Chettiammal v. Collector of Coimbatore 105 I.C. 219 (1927) and Gangi v. Santu 116 I.C. 335 (1929) ]. On reference to sec. 31 of the Act it has been argued on behalf of the claimant No. 2 that a person interested must be a person to whom the money may be immediately paid out; but we think the section indicates that the expression includes other persons as well, who, though they may have no" right to take the money then and there, have an interest therein in future. 6. The claimant No. 7, as well as the members of the group of claimants No. 4 other than Bimal claim to be remote presumptive shebaits and are all interested in the protection of the debuttar estate and so are persons who may well be added as parties to a suit the object of which is to challenge an alienation made by the existing shebait. The reference before the Tribunal partakes of the character of a suit; and on a question of apportionment which rests on the validity or otherwise of a transfer which the existing shebait has made they are all proper parties. It may be pointed out here that the claimant No. 2 did not appear to contest the addition of the claimant No. 7 as a party, though he was served with a notice of the application which the latter had made for the purpose, and so allowed the order to be made in his absence. He made an application to this Court to have the claimants Nos. 4 and 7 as well as some of the other claimants dismissed from the reference but his application in that behalf was rejected on the 12th August, 1929. 7. The most substantial issue in The case and to which the greater part of the arguments were directed is issue No. 3. It runs in these words: Is the said lease in favour of the claimant No. 2 binding on the Thakur Sri Sri Gopal Jin? Is the question raised in this issue res judicata by reason of the results of the Suits No. 2158 of 1919 and No. 1302 of 1927 in the High Court? 8. In order to deal with the issue some facts require to the stated. In 1315 (=1908) the bazar which stood on the acquired property was leased out (Ex. 9) by the then shebait Kumar Sarat Chandra Sinha to the claimant No. 2 for a period of 20 years, with an option in favour of the latter to continue to hold for 5 years more on the same terms and conditions in case the covenants were satisfactorily fulfilled; the rent reserved was Rs. 23,500 per year, i.e., Rs. 1,958-5-4p. per month; the lessee advanced as security 31/2 per cent. G.P. Notes of the face value of Rs. 5,000 and covenanted to pay, by instalments within five years, Rs. 15,000 to Rs. 20,000 as selami for making certain additions and improvements to the Thakurbati; and the lessee also agreed to do all necessary repairs within five years to the premises, the said repairs contemplated being of a somewhat extensive character. G.P. Notes of the face value of Rs. 5,000 and covenanted to pay, by instalments within five years, Rs. 15,000 to Rs. 20,000 as selami for making certain additions and improvements to the Thakurbati; and the lessee also agreed to do all necessary repairs within five years to the premises, the said repairs contemplated being of a somewhat extensive character. In the recitals a justifying necessity for the lease was sought to be made out by stating that the Municipality had served the lessor with notice to make repairs, additions and improvements which would entail enormous expenses which could not possibly be met from the surplus that was left of the existing income after deducting the establishment charges, Municipal rates, taxes and license-fees and charges for repairs and litigation. The claimant No. 2 did not pay the selami, and thereupon in 1916 Kumar Birendra Chandra Sinha, the then shebait, instituted a suit (T. Suit No. 49 of 1916) against him for recovery of the selami and for forfeiture of the security. On the 30th May, 1917, a petition of compromise (Ex. 5a) was filed, and on it a judgment (Ex. 6) and a decree (Ex. 5) were passed. Under one of the terms of this compromise the lease of 1908 was cancelled and surrendered and a new lease was created. It may be stated here that suit No. 49 of 1916 comprised a claim of Rs. 18 thousand and odd. By the compromise, besides the creation of a new lease, the claimant No. 2 undertook to pay the Plaintiff Kumar Birendra Chandra Sinha Rs. 5,000 out of the claim within 15 days and agreed to a decree for a balance of Rs. 11,000 with costs being passed against him, for payment of which certain instalments were provided. The new lease (Ex. 14) after referring to the lease of 1908 recited,- But considering the condition of the properties, for the preservation and improvement of the said properties and especially for effecting those alterations and improvements for which the Calcutta Municipality has issued a notice, many thousand rupees would be necessary. The new lease (Ex. 14) after referring to the lease of 1908 recited,- But considering the condition of the properties, for the preservation and improvement of the said properties and especially for effecting those alterations and improvements for which the Calcutta Municipality has issued a notice, many thousand rupees would be necessary. Therefore, as it would not be possible either for you or any other ijaradar to carry out the directions of the Municipality and to make permanent improvements in the properties unless a long lease is taken in respect of the properties, and as you proposed to take a fresh ijara settlement by cancelling the previous ijara and I consented thereto etc., etc. 9. The new lease was to run for a term of seventy years commencing from the 1st Ashar, 1324, and it was stipulated that if the lessee would abide by all the terms of the lease to the satisfaction of the shebaits of the debuttar, he would have the option to take a further lease on the same terms and conditions for a further period of fifteen years. The rent fixed was the same rent as in the previous lease of 1908, viz., Rs. 1,958-5-4 per month. 10. Claimant No. 2 in his evidence has admitted that the circumstances justifying the new lease were all set out in the document itself. Comparing the recitals in that document with the recitals and covenants of the lease of 1908 the learned President has arrived at the following conclusion: These circumstances (i.e., those that led to the granting of the lease of 1321), briefly stated, were that on the date of the lease the buildings, roads, drains, privies, cesspool, etc, in the demised premises had fallen into a very bad condition for want of repair, and that certain alterations and improvements in respect of those premises, for the execution of which the Corporation of Calcutta had given notice, had not been done. It, is however undeniable, and the lessee had to admit it that under the lease of 1315 it was his duty to have done all the repairs and to have complied with all the Municipal requisitions, so that the circumstances which are set out in the lease as justifying the grant had all been brought about by the failure on the part of the lessee to perform his duties under the lease of 1315. 11. 11. We see no reason to take any different view. That being the position, such necessity for the lease as may have arisen must have resulted from the claimant No. 2's own conduct and he cannot therefore be permitted to rely on such necessity as it was his own wrong that helped to cause it [Hunooman Persaud v. Musst. Babboes Munraj 6 M.I.A. 393 (1871)]. It has to be noted here that a worse feature of this case than what is ordinarily found is that a lease for 20 years of which only about a half of the period had run was by this new lease given a fresh life for 70 years more with a further option on the claimant No. 2 to continue it for a further term of 15 years,-always at the same rent originally fixed. Questions of justifying necessity being out of the way, the learned President proceeded to enquire whether the claimant No. 2 has proved that the lease could be supported as one within the ordinary powers of a shebait and as creating a tenure conformable to usage. He has found, and this finding has not been disputed, that the claimant No. 2 has made no attempt in that direction. 12. It has been argued before us on behalf of the claimant No. 2 that though the facts were as found above, Kumar Birendra Chandra himself was bound by the lease of 1917 and that, as Kumar Birendra Chandra in his capacity as shebait represented the deity, the deity too remained bound by it so long as Kumar Birendra Chandra was alive; that when Kumar Arun Chandra accepted rent under the lease, he also became bound by it and that by such acceptance on the part of Kumar Arun Chandra as shebait, the deity is still bound and will remain bound so long as Kumar Arun Chandra remains shebait This contention has been put forward on a construction of certain observations to be found in the judgment of the Judicial Committee in Vidya Vamthi's case L.R. 48 IndAp 302 at p. 327; s.c. 26 C.W.N. 537 (1922) and in Nainnpillai's case L.R. 51 IndAp 83 at p. 97; s.c. 28 C.W.N. 809 (1924) and by resorting to a process of reasoning which to our minds is not quite intelligible. It is clear that Kumar Birendra Chandra having chosen to let the lease stand, the lease remained in force until Kumar Birendra's death. Whatever the intended duration of the grant created by Kumar Birendra Chandra may have been, it could stand good only for the limited period of his life as shebait, or, in other words, of his life-interest as shebait. [Mohant Ram Charan Das v. Munshi Nawranji Lal L.R. 60 IndAp 124: s.c. 37 C.W.N. 541 (1933)]. And upon the authority of Vidyavaruthi's case L.R. 48 IndAp 302 at p. 327; s.c. 26 C.W.N. 537 (1922) alone, not to speak of other authorities on the point, it is too late to dispute that acceptance of rent by the claimant No. 1 could only be referable to a new tenancy created by him. This tenancy, in the absence of a registered document creating it and in view of the fact that the rent payable in respect of it was a monthly rent, could not be anything higher than a monthly tenancy. This is the view which the learned President has expressed, and, in our judgment, the view is unassailable. The learned President has also examined the matter from several other points of view: he has observed that it was always open to the deity to whom the properties belonged-the debutter in this case being an absolute one-to challenge the lease, being represented by some other person; that on the analogy of the shebait's position in relation to that of a female Hindu heir taking a limited estate, the claimants Nos. 4 or in any event Bimal of that group was competent to challenge the transaction. 13. We have next to consider the question whether by reason of the result of suit No. 2,158 of 1919 and suit No. 1.302 of 1927, the lease is binding on the deity. 14. The plaint in the first suit is Ex. 1. The suit was instituted on the 26th August, 1919, by Raja Manindra Chandra Sinha, and on his death the claimants Nos. 4 represented by their next friend, and also their mother and grandmother who were executrices under Raja Manindra Chandra's Will were substituted in his place. 14. The plaint in the first suit is Ex. 1. The suit was instituted on the 26th August, 1919, by Raja Manindra Chandra Sinha, and on his death the claimants Nos. 4 represented by their next friend, and also their mother and grandmother who were executrices under Raja Manindra Chandra's Will were substituted in his place. Kumar Arun Chandra in his personal capacity as well as in his capacity as shebait was one of the Defendants, and the claimant No. 2 was another Defendant and there were several other Defendants who were the other members of the family. The case was laid on the footing that the properties, amongst which was the acquired property in this case, were secular properties subject to a charge for the expenses of worship of the deity. In the suit, the lease in favour of the claimant No. 2 was challenged as being invalid on the ground that the co-sharers other than Kumar Birendra Chandra had never granted it and also on the ground that such a lease was in excess of Kumar Birendra's authority as shebait; charges were laid against the claimant No. 1 of breach of duty as shebait; it was prayed that the lease be cancelled and claimant No. 2 being evicted the properties be partitioned. The suit did not proceed to trial, as eventually the Plaintiffs withdrew their allegations and allowed the suit to be dismissed but without costs. On no conceivable principle can the decision, in our opinion, operate as res judicata in the present case to the prejudice of any of the parties to that litigation or of the deity. The learned President has given very cogent reasons for the above view which he has expressed and which, in our judgment, is the only view possible. 15. The second suit was instituted by the claimant No. 1 as shebait against the claimant No. 2, of which the plaint is Ex. L. The claimant No. 1 took his stand upon the lease of 1917, charged the claimant No. 2 with various breaches of the covenants contained therein and claimed that the lease had been forfeited and prayed for possession of the demised premises, arrears of rent and damages, aggregating altogether a sum of Rs. 3,54,500. A settlement was arrived at, the terms whereof were the following: 1. Defendant do pay to the plaintiff or his Attorney the sum of Rs. 3,54,500. A settlement was arrived at, the terms whereof were the following: 1. Defendant do pay to the plaintiff or his Attorney the sum of Rs. 10,770-13-4 in cash on account of arrears of rent from the 16th October, 1927 up to the 31st March, 1928 with interest as provided in the lease. one-fourth of the said principal amount is to be paid within a month from date and the balance including interest within six months from date. 2. Defendant to execute the necessary repairs, renewals etc, to demised premises in terms of the lease, such repairs etc., to be effected to the satisfaction of Mr. C.K. Sircar. Mr. C.K. Sircar is to inspect the demised premises within a fortnight from date and to submit a report in writing regarding the necessary repairs etc., within one month from date to the Registrar of this Court to be filed in this suit and copies of the slid report within the same time to the Attorneys for the parties. The Defendant will execute the repairs, etc, in strict accordance with the said report within two years from the date of receipt of the said report by his attorney. The report of Mr. C.K. Sircar will be final and binding on the parties. 3. In default of compliance of clauses 1 and 2 above or either of them within time limited-time being deemed as of the essence of this agreement, the lease will stand cancelled and the Plaintiff will be entitled to recover possession by an application in this suit. The parties will have liberty to apply in this suit. 4 The disputes between the parties relating to the apportionment of the compensation moneys and the amount of rent payable by the Defendant from the 1st April, 1928 are referred to the arbitration of two gentlemen to be nominated by each party within a week from date under the Indian Arbitration Act with Sir B.L. Mitter, Advocate-General, as umpire. The parties undertake to file a petition in the Court of the President of the Improvement Tribunal to give effect to the clause within a week from date. In default these terms will stand cancelled. 5. Defendant to pay the costs of this suit on scale No. 2 including the costs of this application. 16. A decree on the basis of this settlement was passed on the 10th August, 19?8 (Ex. In default these terms will stand cancelled. 5. Defendant to pay the costs of this suit on scale No. 2 including the costs of this application. 16. A decree on the basis of this settlement was passed on the 10th August, 19?8 (Ex. 4), it being ordered that the terms of settlement, in so far as they related to the suit, should be carried out. The agreement contained in clause 4 of the terms was not carried out, neither party applying to the Tribunal within a week of the date of the decree to give effect to the clause. An attempt to get an arbitration on the question of apportionment proved abortive and the arbitration was eventually dropped. In such circumstances no question of res judicata such as was raised in issue No. 3 in this case could possibly arise. 17. Under cover of this issue Mr. Bose, appearing on behalf of the claimant No. 2, has raised a question of estoppel, his argument being that having regard to the conduct of the claimant No. 1 in connection with the suits afore-mentioned it is not open to the deity to challenge the validity of the lease and that this estoppel operates for the reason that the claimant No. 1. and, for the matter of that, the claimant No. 4 as well, are not competent to do so. What conduct is it that is relied on in this connection? In suit No. 2.158 of 1919 the claimant No. 1 was a co-Defendant with the claimant No. 2 and the charges which the Plaintiffs in that suit had made against him were, in the result, withdrawn and the suit was dismissed with costs: He does not appear to have done anything which as a piece of conduct can possibly raise a question of estoppel. In suit No. 1,302 of 1907 the claimant No. 1 accepted rent due under the lease and agreed to allow the lease to remain operative on certain conditions. As already observed such acceptance of rent could only be referable to a new tenancy, which in this case could only be a monthly tenancy. In suit No. 1,302 of 1907 the claimant No. 1 accepted rent due under the lease and agreed to allow the lease to remain operative on certain conditions. As already observed such acceptance of rent could only be referable to a new tenancy, which in this case could only be a monthly tenancy. And as regards the agreement on the part of a shebait to continue an invalid lease of this character granted by his predecessor, such agreement is at best an agreement to grant a similar lease which is ultra vires the powers of a shebait and so such an agreement cannot be specifically enforced. As observed in Maim Pillai's case L.R. 51 IndAp 83 at p. 97: s.c. 28 C.W N. 809 (1924): In the case of a shebait a grant by him in violation of his duty of an interest in endowed lands which he has no authority as shebait to make may possibly under some circumstances be good as against himself by way of estoppel, but is not binding upon his successors. 18. The property being absolute debutter the shebait has no power to bind the deity by an act beyond his powers; and no question of estoppel can arise in this case because it is perfectly plain that the claimant No. 1 did not practise any misrepresentation or inducement which led the claimant No. 2, who had as much knowledge of the invalidity of the lease as the claimant No. 1, to act as he did or to act to his prejudice. 19. Passing on from his argument based on what he put forward as having been the conduct on the part of the claimant No. 1, Mr. Bose has referred us to a number of decisions in which the effect of consent decrees has been considered, and he has argued with considerable force that by the terms of the consent decree in the latter of the two suits referred to above an estoppel is created against the claimant No. 1 by which also, in the absence of any fraud being established, the deity as well as the claimants Nos. 4 are bound. 4 are bound. He has also contended, on the authority of such decisions as have laid down that a decree to which a limited owner is a party as representing the estate binds the estate, that no fraud having been proved or even alleged, the deity and the next and the future shebaits are all bound by the consent decree in the second suit. These arguments overlook the cardinal fact that in the absence of a justifying necessity, consent to grant or ratify a lease of this character is outside the scope of the authority of a shebait, and by a decree passed on such consent the deity cannot be held bound. It is difficult to see how if the deity himself is not bound it can be argued that the claimants Nos. 4, who at any moment are competent to challenge on behalf of the deity the validity of the consent as being outside the powers of the claimant No. 1, can be said to be estopped. The result of the conclusions noted above is that the claimant No. 2 had no higher rights in the demised premises than those of a monthly tenant. It has not been nor can it be argued that claimant No. 2, if he is only a monthly tenant, is entitled to any part of the compensation money. His claim, therefore, must, in our opinion, be overruled. * * * * * [The rest of the judgment is not material for the purpose of the report.]