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1975 DIGILAW 337 (CAL)

PRAFULLA KUMAR BERA v. BASANTI PANDA

1975-11-25

CHITTATOSH MUKHERJEE

body1975
CHITTATOSH MUKHERJEE, J. ( 1 ) THE property in suit originally belonged to one Provakar Panda. He died leaving his son Aswini, widow Narayani and two daughters, Basanti and Arundhati. The said two daughters brought a suit out of which this second appeal arises. Aswini having died unmarried it is not disputed that his mother Narayani, as widow of Provakar, inherited as a limited owner having Hindu woman's estate therein. Narayani granted patta in favour of the defendants, who are appellants in this second appeal, on July 6, 1952 granting permanent lease of Plot Nos. 370 and 321 and a portion of Plot No. 318 in their favour on payment of selami of Rs. 800/- (Rupees eight hundred) and on an annual rent of eight annas. Narayani died in the year 1372 B. S. The plaintiffs-respondents thereafter instituted the instant suit for declaration of their right, title and interest and for permanent injunction inter alia on the allegation that their mother Narayani without legal necessity and without their consent had alienated said plots by way of grant of permanent lease. The plaintiffs allege that the said transfer in favour of the defendants was not binding upon them and they were entitled to the reliefs prayed for in the instant suit. ( 2 ) THE defendants contested the said suit inter alia on the ground that the transfer by Narayani in their favour was for legal necessity and that the same was binding un reversioners of the last male holder of the suit property. The defendants further contended that the plaintiffs were not entitled to challenge the transfer inasmuch as by operation of section 14 of the Hindu Succession Act, 1956 their lessor Narayani had become the absolute owner and the plaintiffs could no longer claim to be reversioners entitled to have the transfer made by Narayani set aside and invalidated. ( 3 ) THE learned Munsif dismissed the suit holding inter alia that transfer by Narayani by way of permanent lease was for legal necessity. ( 4 ) THE learned Additional District Judge allowed the appeal of the plaintiffs, reversed the decision of the learned Munsif and decreed the suit. Hence this Second Appeal. ( 5 ) IN my view, the question whether or not thee was legal necessity for the transfer was one of fact. ( 4 ) THE learned Additional District Judge allowed the appeal of the plaintiffs, reversed the decision of the learned Munsif and decreed the suit. Hence this Second Appeal. ( 5 ) IN my view, the question whether or not thee was legal necessity for the transfer was one of fact. The lower appellate court has considered the evidence on record and has come to the conclusion that there was no legal necessity. The lower appellate court correctly placed the burden of proof upon the defendants to affirmatively establish presence of legal necessity justifying alienation by Narayani in their favour. Accordingly, sitting in the second appeal, I am unable to interfere with the finding that the defendants had failed to discharge their burden on the said issue. ( 6 ) IN my view, the learned District Judge also properly construed the effect of Section 14 (1) of the Hindu Succession Act. Narayani made the alienation in question before the enactment of Hindu Succession Act and she was not possessed of the property in suit at the date of the commencement of the said Act. Accordingly by operation of Section 14 (1) of the Act her estate was not enlarged into an absolute one. ( 7 ) BUT this appeal must succeed on a point which was not mooted in the Court below which has been, however, allowed to be urged here as the same is a pure question of law clearly emerges from the admitted facts of the case. Narayani, the widow of Aswini held a limited estate in respect of raiyati lands. On July 6, 1952, she had executed the patta in question granting permanent under-tenancies in favour of the defendants. In other words, defendants were inducted as under-raiyats. After the State Government published Notification under Section 49, Chapter-VI of the West Bengal Estates Acquisition Act relating to acquisition of interests of raiyats and under-raiyats came into force with effect from April 10, 1956. On the issue of such Notification, the provisions of Chapter II, III, V and VII applied mutatis mutandis to raiyats and under-raiyats as if they were intermediaries and the lands held by them were estates and persons holding as raiyats and under-raiyats were intermediaries for the purpose of clauses (c) and (d) of Section 5. On the issue of such Notification, the provisions of Chapter II, III, V and VII applied mutatis mutandis to raiyats and under-raiyats as if they were intermediaries and the lands held by them were estates and persons holding as raiyats and under-raiyats were intermediaries for the purpose of clauses (c) and (d) of Section 5. The State Government by a Notification under Section 4 of the West Bengal Estates Acquisition Act directed that with effect from Baisakh 15, 1362 B. S. estates and rights of raiyats and under-raiyats shall vest. ( 8 ) IN the instant case, as already stated the defendants had become under-raiyats under the patta granted by Narayani, who was a limited owner. As a result of the above Notification, the estates and right of intermediaries in the estate, to which declaration applies, vested in the State free from all encumbrances. The defendants-appellants who were in the possession of the disputed lands as under-raiyats with effect from the date of vesting by operation of law became raiyats directly under the State as if the State had been the intermediaries on the same terms and conditions as immediately before the date of vesting. ( 9 ) IN my view, the conclusion is inescapable that by operation of law the old tenancy of the defendants was extinguished and a new statutory tenancy in their favour was created by the West Bengal Estates Acquisition Act read with the Rules made thereunder. Narayani was alive at the date of the vesting; neither she nor the reversioners of her son Aswini namely the plaintiffs were in possession of the disputed plots at the date of vesting. But as already pointed out the lands were in possession of the defendants at the material time. Therefore, Mr. Panda correctly pointed out that there could be no question of either Narayani or the present plaintiffs retaining the disputed plots in terms of Section 6 (1) (d) of the West Bengal Estates Acquisition Act, 1953. On the other hand, the defendants who were themselves under-raiyats must be deemed to be intermediaries after Chapter-VI of the Act came into force and they became legally entitled to retain the disputed plots. The areas of the lands were much below 25 acres; therefore, strictly no question of submission of any 'b' form could arise. ( 10 ) MR. On the other hand, the defendants who were themselves under-raiyats must be deemed to be intermediaries after Chapter-VI of the Act came into force and they became legally entitled to retain the disputed plots. The areas of the lands were much below 25 acres; therefore, strictly no question of submission of any 'b' form could arise. ( 10 ) MR. Panda has placed before me several decisions in support of his contention that after the vesting by statutory operation a fresh or a new tenancy was created in favour of the defendants. The Supreme Court by a majority decision in Bihar Mines Limited v. Union of India and others, reported in AIR 1967 SC 887 with reference to Mining sub-leases granted before the Bihar Land Reforms Act came into force laid down that the old leases were not continued but new statutory leases came into existence when the estate vested in the Government. Accordingly, the majority view in Bihar Mines Limited (supra) was that Mining Leases (Modification of terms) Rules, 1956 which provided for modification of lease granted before October 25, 1949 would not modify terms of such statutory leases. Mr. Panda also relied upon Supreme Court decision reported in AIR 1969 Supreme Court 177 (Chhatu Ram Horil Ram Pvt. Ltd. v. State of Bihar) and AIR 1969 SC 971 (Shivasankar Prasad Sah and Anr. v. Baikuntha Nath Singh and ors. ). In both the decisions the Supreme Court proceeded on the basis that after the vesting the leases granted by the intermediaries before the vesting were replaced by new statutory leases. The decisions support the view I have taken in this case. The lease granted by Narayani in favour of the defendants was subsisting at the date of vesting. Therefore, the defendants by operation of law become raiyats directly under the State and the old under-raiyati tenancy no longer subsisted. Accordingly, the plaintiffs are not entitled to institute any suit for setting aside the alienation by Narayani in favour of the defendants. The plaintiffs can have no relief in respect of the statutory tenancy in favour of the defendants which came into operation on and from the date of vesting. ( 11 ) THE above question came up also before a Division Bench of the Patna High Court in Shivashankar Singh v. Raghubansh Singh reported in AIR 1967 Pt. 172. The plaintiffs can have no relief in respect of the statutory tenancy in favour of the defendants which came into operation on and from the date of vesting. ( 11 ) THE above question came up also before a Division Bench of the Patna High Court in Shivashankar Singh v. Raghubansh Singh reported in AIR 1967 Pt. 172. In the said case a widow having limited estate had alienated by way of a lease before the vesting of intermediary interests under Bihar Land Reforms Act, 1950. After the vesting certain persons claiming to be reversioners of the last male holder of the property had instituted a suit impugning the said transfer by the widow. The Division Bench of the Patna High Court while allowing the appeal at the instance of the defendants inter alia held that the suit was not maintainable at the instance of the reversioners even during the lifetime of the widow which had alienated the property in question. Their Lordships observed that: -"this position is inevitable on account of the consequence flowing from the enforcement of the Bihar Land Reforms Act and the wiping out of the Interest of the proprietor in the estate. Whosoever was in possession of the land on the date of vesting will be the tenant under the State and any other person will cease to have any interest therein. In that view of the matter, the contention of learned counsel is bound to prevail against the maintainability of the present suit by the reversionary heirs. "their Lordships also had observed that the defendants Nos. 2 and 3 who were the alienees were in possession at the date of vesting. In that view, the suit property could not be retained by the transferor or the reversioners under Section 6 of the Bihar Land Reforms Act. Neither the widow could maintain the suit for recovery of possession after vesting nor the reversioners could maintain such a suit, the right of possession and title of such land having been statutorily lost. I respectfully agree with the above statement of law and applying the same reasoning, I would hold that the plaintiff who claimed to be reversioners of Aswini, son of Narayani was no longer entitled to the reliefs prayed for in the instant suit. I respectfully agree with the above statement of law and applying the same reasoning, I would hold that the plaintiff who claimed to be reversioners of Aswini, son of Narayani was no longer entitled to the reliefs prayed for in the instant suit. ( 12 ) I accordingly allow this appeal, set aside the judgment and decree of the lower appellate court and restore those of the trial court. There will be no order as to costs. Appeal allowed.