Judgment Fazl Ali J.- These appeals are directed against the judgment & decree of the H.C. of Judicature at Fort William in West Bengal, confirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the first Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 &141, Cotton Street. 2. In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject-matter of the land acquisition proceedings. The premises belonged at one time to one Sewanarayan Kalia, & afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hooghly. Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his predeceased wives, these being Jiban Kumari & Amrit Kumari, & a mistress named Kissen Dasi. On 23-8-1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, & Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi & Jiban Kumari also became the shebaits of the Thakur or deity with power to appoint their successors. On 20-1-1848, Muni Bibi by an arpannama dedicated 140, Cotton Street to the Thakur. It is recited in this deed, among other things, that on account of annual droughts & & inundation & consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that "Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob, etc., at the deity, when the amount fell short, this being against the provisions laid down by her late husband," that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p. m., that after deducting the necessary expenses the surplus income left was Rs. 20 p m., & that "if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force." After reciting these facts, it is stated that the rental of the house "shall be permanently & perpetually included in the expenses of the sheba". About 20 years later, on 30-9-1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No.140, Cotton Street, in her capacity as a shehait in favour of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p. m. (See Ex. L- a kabuliyat executed by Nehal Chand in power of Maui Bibi). In the same year, on the 8th December, Jiban Kumari granted a permanent lease to Bhairodas Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p. m. (See Ex. K - a kabuliyat executed by Joharry in favour of Jiban Kumari). The main question which has been raised in this case is whether the two ladies were competent to give debutter properties by way of permanent lease to another person. In 1870, Muni Bibi died, & on 15-1-1872, Jiban Kumari appointed Gourimoni Devi a shebait by a regd deed & dedicated the premises known is 141, Cotton Street, to the deity. Both Jiban Kumari & Gourimoni Debi died shortly afterwards, & Gopal Das. a minor son of Gourimoni, become the shehait of the idol. During his minority, his father, Raghubar Dayal, became his certificated guardian, & in that capacity, he executed a usufructuary mtge. deed in respect of the Cotton Street properties to one Lal Behari Dutt, on 31-8-1878. After the death of Raghubar Dayal, one Ajodhya Debi & after her one Kalicharan Dutta became the certificated guardian of Gopal Das, & on 17-8-1890, the latter mortgaged some debutter properties including 140 &141, Cotton Street to Lal Behari Dutt for a sum of Rs. 2,230. On attaining majority, Gopaldas executed on 17-1-1896 a usufructuary mtge deed in respect of all debutter properties including the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mtge. dues which amounted on that date to Rs. 4,955 & odd. 2,230. On attaining majority, Gopaldas executed on 17-1-1896 a usufructuary mtge deed in respect of all debutter properties including the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mtge. dues which amounted on that date to Rs. 4,955 & odd. This deed provided among other things that the mtgee. was to collect rents, outgoings, carry on the sheba of the deity, & that whatever balance was left out of the income of the property was to go towards the satisfaction of the mtge. dues. Gopaldas died in 1900, leaving behind him surviving his widow, Annapurna, who also died in 1905, By 1918, Lal Behari Dutt also was dead, & his interest in the martgaged properties, to which reference has been made was sold to one Naba Kishor Dutt on 12-12-1918. On 17- 11-1933, Naba Kishor assigned the mtgee s interest in the mortgaged properties to two of the Bagarias, resps. 1 & 2 in App. No. 95, & in the same year the three resps. (1 to 3) also acquired the lessee s interest in the Cotton Street houses. The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos.140 and 141, Cotton Street, is well as two adjoining premises with which we are not concerned in this case. In these proceedings, the following claims were put forward by three sets of persons : (1) The Bagarias (resp. 1 to 3 in App. No 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the premises in question, but later on they claimed only as mtgees. & permanent lessees of those premises. (2) On behalf of the deity, the entire amount of compensation money was claimed by Deosaran Singh & Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, & the Bagarias had acquired no interest therein either by the assignment of the usufructuary mtge. or the alleged purchase of the tenant s rights in the properties. (3). Resp. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords. 3. or the alleged purchase of the tenant s rights in the properties. (3). Resp. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords. 3. In the present appeals, we are concerned with the first two claims only, & we shall briefly state how they were dealt with by the Collector & the Cts. below. On 22-5-1935, the Collector awarded Rs. 31,740 as compensation for landlord s interests to be shared by the deity as owner & two of the Bagarias, resps. 1 & 2 in App. No. 95 in their capacity of usufructuary mtgee. A awarded a sum of Rs. 1,58,000 to the resps. 1, 2 & 3 as compensation for their rights as permanent tenants of the premises in question. Subsequently, three separate petns. of reference were filed by the three claimants against the Collector s award & the reference made by the Collector in pursuance thereof was regd. as apportionment case No. 95 of 1935 in the Ct. of the Calcutta Improvement Tribunal. Meanwhile Deosaran Singh & Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, & the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent & protect its interests. On 31-8-1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufructuary mtge. on the basis of which resps. 1 & 2 had put in a claim, had been paid off & therefore they were not entitled to any compensation, & the whole sum of Rs. 31,740 should be paid to the deity. Resps. 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity & therefore were binding on the deity. He also held that the deity was not entitled to question the leases by virtue of Art. 134 (a), Limitation Act. Regarding costs, he directed that all costs incurrent on behalf of the deity should, be paid out of the compensation money lying in deposit in Ct. He also held that the deity was not entitled to question the leases by virtue of Art. 134 (a), Limitation Act. Regarding costs, he directed that all costs incurrent on behalf of the deity should, be paid out of the compensation money lying in deposit in Ct. Two appeals were thereafter preferred to the H. C. by the two main contesting parties & ultimately both these appeals were dismissed, & the H. C. upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Ct. the deity having obtained a certificate granting leave to appeal from the H. C. & the Bagaria resps. having obtained special leave from the P. C. to prefer a cross appeal. 4. The main questions which arise in these appeals are : (1) whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity ; and (2) whether the mtges. on the basis of which the Bagarias had laid their claim to compensation had been satisfied. The first question arises in App. No. 95, & the second question arises in App. No. 96. 5. So far as the question of legal necessity is concerned, there are concurrent findings of the Tribunal & the H. C. against the applt. in App. No. 95, but we allowed his counsel to argus the question at some length, because it was urged before us that on the facts of the case the point in issue was not a question of fact but one of mixed fact & law, especially as the decision of the H. C. turned upon the construction at the leases & the inference drawn from the fact that the permanent nature at the tenancy had remained unquestioned for a very long period. 6. The tenancy in question came into existence as long ago as 1869, & it is not surprising that no direct evidence hearing on the issue of legal necessity is available now. We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, Exs. 6. The tenancy in question came into existence as long ago as 1869, & it is not surprising that no direct evidence hearing on the issue of legal necessity is available now. We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, Exs. L & K, were executed, because it is well-settled that if all the original parties to the transaction & those who could have given evidence on the relevant points have passed away, a recital consisting of the principal circumstances of the case assumes greater importance & cannot be lightly set aside : see Banga Chandra v. Jagat Kisor, 43 I. A 249. It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity & with regard to whom it was not suggested that they expected to derive any personal advantage from the transactions in question. It seems to us most unlikely that they would be parties to any untrue recitals merely to support the transaction. It may be recalled here that in 1848 certain properties belonging to the deity had been sold for arrears at rent, & Jiban Kumari had been supplementing the income of the residue from her own properties for meeting the expenses of performing certain essential services to the deity, such as jatra, mahotsob, etc. We also find from the arpannama that the value of the property which is the subject-matter of the mokrari kabuliyat dated 30-9-1869 (Ex. L) was Rs. 2,000 in 1848, that it was not in the khas possession of Muni Hibi but had been let out to a tenant & that its net income was Rs. 20 p.m. At the time when the arpannama was executed, Muni Hibi clearly thought that the sum of Rs. 20 p.m. it included in the expenses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help. From the recitals in Ex L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition & had collapsed in the rains at 1275 B. S. (1868 A.D.), & Muni Bibi was unable to bear the expenses of constructing a new building at the place. From the recitals in Ex L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated condition & had collapsed in the rains at 1275 B. S. (1868 A.D.), & Muni Bibi was unable to bear the expenses of constructing a new building at the place. The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses at the deity, which should not in any case be less than the income which the property had theretofore yielded. She decided to choose what must have appeared to her to be the better & more prudent course, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were said to the lessee, also secured at regular monthly income of Rs. 25. There can be no doubt that the transaction was in the best interests of the deity & clearly beneficial to it. 7. A reference to the arpannama shows that the house was in the possession of a tenant even in 1848, & from the recitals in the document it is clear that what Muni Bibi contemplated was that the house should continue to remain in the possession of a tenant, & the rent of the house should be used for the sheba of the deity. At that time, she did not contemplate any other made of using the property she was going to dedicate. We do not know who was the tenant of the house in 1848 & what were the commitments of Muni Bibi at that time, but, even apart from these facts, it is difficult to believe that a devout person like her, who was not only a shebait but also the widow of the founder of the deity & who had shown such keen interest for the upkeep of the worship of the deity, should have entered into the transaction in question unless she considered it absolutely necessary to do so. The contention put forward before us is that it has not been shown that there was no other course open to Muni Bibi than to grant a permanent lease in respect of the property, but it is manifest that at this distance of time no evidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the course she did. It is now well settled that : where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertain fully what the circumstances were in which it was made, the Ct. should assume that the grant was made for necessity so as to be valid beyond the life of the grantor : see Magniram Sitaram v. Kasturbhai, 49 I. A. 54. In the present case, the circumstances which can be gathered from the recitals together with the foot that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the conclusion that the grant was made for legal necessity & is binding on the deity. On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi & the commencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it. On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on 18- 10-1873 (Ex. Y), & in a mtge. deed executed by Raghubar Dayal, the guardian of Gopaldas, on 31-8-1878. The properties in question were subsequently mortgaged by Kali Charan Dutt & Gopaldas, but neither of these persons nor the mtgees. ever came forward to question the permanent nature of the tenancy. 8. The counsel for applt. relied upon Ex. VI, which is a copy of the judgment of the H. C. in a suit instituted by Nabakishore Dutt in 1925 against the Administrator-General of Bengal for the rent of the house in qnestion. It appears from this judgment that the tenancy was admitted by the deft. 8. The counsel for applt. relied upon Ex. VI, which is a copy of the judgment of the H. C. in a suit instituted by Nabakishore Dutt in 1925 against the Administrator-General of Bengal for the rent of the house in qnestion. It appears from this judgment that the tenancy was admitted by the deft. & it was also admitted by him that rent was due, but he claimed that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent. The learned Judge, who dealt with the case, however, thought that the point raised by the deft. did not strictly speaking arise in a suit for rent, which according to him could not be converted into a suit for declaration of title, & on that basis, he passed a decree in favour of the pltf. The judgment does not say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however, that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had remained unquestioned for nearly, half a century. 9. The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt. As has been already stated, a mourasi mokrari tenancy was created by Jiban Kumari on 8-12-1869, as is evidenced by Ex. K. This document recites among other things that the house which was the subject of the lease, "stands in need of repairs & for want of such repairs there is chance of some portion thereof breaking down during the year." It also recites that whatever income was derived till then from that house was derived by letting it out on rent & that the mourasi tenancy was being created for the purpose of repairing the house & keeping it in existence. At the end of the document, it is stated that "the shebait shall keep the kabuliyat & patta in force & shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity." It is noteworthy that the actual dedication of this property took place on 15-1-1872, more than 2 years after the kabuliyat. On that date, a regd. 90 as rent, defray the expenses of the sheba of the deity." It is noteworthy that the actual dedication of this property took place on 15-1-1872, more than 2 years after the kabuliyat. On that date, a regd. deed of gift was executed by Jiban Kumari in favour of Sm. Gourimoni Debi & it was recited therein that the income of the house was being dedicated by the former to the sheba of the deity. There was also a further clause in that deed to the following effect : "In accordance with the terms of the solenama the expenses of the Iswar Seba shall be met from the income of those properties which have been dedicated for the performance of the work of the said seba & the amount by which the expenses for the festivals would fall short & the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met & the Tahailia (attendant) & the Brahman cook & the Brahman priest (now) employed & to be employed hereafter shall get (their) salaries, from the income of the said property." On reading this document along with the solenama & the mokrari lease granted by Jiban Kumari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, & that she had dedicated this income for specific purposes with the object of making up the deficit in the income received frome other debutter properties. If it is held that Jiban Kumari was an absolute owner of the property at the time the mourasi mokrari lease was granted & afterward she dedicated only the income of the property, then the permanent lease cannot be assailed. If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house & it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime. Such a question, however, does not need an elaborate answer, because the some considerations which apply to 140, Cotton Street, will apply to this house, & the presumption as to necessity which is raised by the long lapse of time, would arise here also. This presumption is considerably strengthened here as well as in the case of the lease granted by Muni Bibi, by the fact that the grantor of the lease was so devoted to the object of the endowment that it does not seem likely that she would have granted a permanent lease unless she was impelled to do so by absolute necessity. It seems to us therefore that the view taken by the H.C. is substantially correct & the resps. 1 & 2 are entitled to compensation as permanent lessees. In this view, App. No. 95 must fail, & it is dismissed. 10. As to App. No. 96, it has been concurrently found by the President of the Tribunal & the H. C. that the applts. have failed to prove by proper evidence that there is any money still due to them on the usufructuary mtge. executed by Gopaldas in 1886. In arriving at this finding, they have dealt with every, possible argument that could be urged & was urged on behalf of the applts. to show that the mtge had not been satisfied. This Ct. has repeatedly held that it will not generally interfere with concurrent findings on a pure question of fact, & nothing has been shown on behalf of the applts. to induce us to depart from this rule. In the result App. No. 96 also is dismissed. 11. Having regard to the circumstances of the case, we shall make no order as to costs in either of these appeals. Appeals dismissed. For Citation : AIR 1951 SC 214 Vikas Info Solutions Pvt. Ltd.