LOKE NATH MUKERJEE Vs. ABANI NATH MUKHERJEE

JUDGEMENT

(1.) Babu Joy Kissen Mukherjee, a wealthy zamindar of Uttarpara, in the district of Hooghly, started at his own expense a public library for the use and benefit of the public of Uttarpara. There is a plot of land measuring about 3 bighas 2 cottas in Uttarpara. The river Ganges is on the east of this plot and the Grand Trunk Road is on its west. There are compound walls on the north, south and west with two gates on the Grand Trunk Road. There is a small strip of vacant land measuring about four chittaks between the northern portion of the western compound wall and the Grand Trunk Road. On the east there is a parapet on the buttress. There is a pucca ghat on the river bank inside the compound. Within this plot there is a big building. It consists of a basement and two storeys. There is a lawn (formerly a flower garden) to the east of this building. There are out-houses on the north and south within the compound. The library is now located in certain rooms in the first storey of the main building. The second storey is a bai-takkhana. The servants of the library and the baitakkhana reside in the out- houses. Babu Joy Kissen was the owner of this land and the building thereon. On 11 July 1879 he made his last will. The provisions of his will relating to this property are these: Paragraph 12.-I have caused a pucca two-storeyed building erected within a plot of land measuring about 3 bighas 2 cottas....The public library rooms having been located in the ground floor of this building and the baitakkhana rooms having been located on the floor above, books are collected on the ground floor and newspapers and books, etc., are purchased from time to time and they are being read and used and shall be read and used by the general public according to special rules .... Upon the demise of my eldest son Hara Mohan Mukherjee, the Malik of the said land and building, his son Bash Behari Mukherjee has become "the holder of the right and possessor" (according to plaintiffs) or "the owner and possessor" (according to defendants 1 and 2) of the said lands and buildings according to previous arrangement. God forbid, if at the time of his death he leaves no male child then his uterine Shib Narayan Mukherjee and "on his death" (according to the plaintiffs) or in his default by death (according to defendants 1 and 2) his eldest son in male line of succession (according to plaintiffs) or generation after generation (according to defendants 1 and 2) shall become "the holder of the right and possessor" (according to the plaintiffs) or "owner and possessor" (according to defendants 1 and 2) thereof. God forbid if there be no male child of my two said grandsons or of their (family) then my existing son Peary Mohan Mukerjee or his eldest son shall become the holder of the right and possessor (according to plaintiffs) "owner and possessor" (according to defendants 1 and 2) and shall continue as such. But none of my heirs nor any other person shall have power to remove the public library from the ground floor or to transfer the aforesaid land and building. Paragraph 13.-Although my aforesaid grandson and his " after taker " (according to plaintiffs) or heir (according to defendants 1 and 2) shall be " right holder in succession " (according to plaintiffs) or " owner in succession " (according to defendants 1 and 2) of the said land and building, the big hall, the room to the west thereof, five rooms to the north and south, the small circular room on the north-western corner together with the verandahs on the east and south and stairs to the ground on the east and west all situated on the ground-floor of the building shall appertain to the Public Library and the stair-case on the south-western corner of the ground-floor and the spiral staircase which is situated outside on the northern side shall appertain to the baitakkhana above. The expenditure on account of purchasing newspapers, new books and instruments, salaries of officers, lighting charges, etc., all on account of the Library are being met and shall be met from the profit of the dedicated putni taluks specified afterwards in schedule marked "Tha" and from the interest of Rs. 5000. After keeping in view the income from the Taluks dedicated to the Library and fixing the expense accordingly, appointment of officers, purchase of newspapers and books, etc., and other functions are being performed and shall be performed by a committee and shall not be performed by anybody else. Now my son Peary Mohan Mukherjee and my grandsons Rash Behari Mukherjee and Sib Narayan Mukherjee and my step-brother Naba Krishna Mukherjee and Mon-matha Nath Chatterjee of this village and Chandra Sekhar Banerjee, husband of my youngest daughter, have been appointed by me to be members of the said committee. The number of members of the said committee shall never exceed six. Of them the eldest male heir of the family of each of my sons and their heirs shall become a member. Having regard to this provision, if any of the aforesaid present resigns from his post or dies, a fit person according to the decision of the majority of members shall be appointed in the vacancy. A member shall continue to be such during his lifetime unless he resigns from his post on account of serious illness or old age or any other reason. All the work of the Library shall be conducted according to the opinion of the majority of the members of the committee, but if the committee be equally divided in their opinion, then my grandson Bash Behari Mukherjee and upon his demise his representative shall have the casting vote. Paragraph 14.-The taluks which I have dedicated for the purpose of carrying on the expenses of this Library were settled in darpatni with my son Hara Mohan Mukherjee on a selami of Rs. 5000. In order to discharge the liability of sadar rent of the mahals Government loan papers were purchased with the selami and kept in the custody of the said Hara Mohan Mukherjee; upon his demise the said Government loan papers shall now remain with Rash Behari Mukherji according to the provisions specified above, but except for discharging the liability of the rent of the aforesaid mahals he shall have no power to sell or make a gift of the said loan papers for any other reason. Paragraph 15.-The members of the committee shall have no right to the rooms on the upper floor and the lower floor of the Library; my grandson Rash Behari Mukherjee shall have the right to these rooms but he shall have no power to sell them. The pucca kitchen, the stable and the rooms for the durwans on the northern and southern side of the building are set apart for the residence of the servants of the Library and the servants of the baitakkhana on the floor above the Library. Bash Behari Mukherji or his representative shall meet from the Library funds the cost of repairing these rooms. The flower garden on the eastern side of the Library shall be under the management of the committee. The expenses on account of the garden and on account of the repairs of the Library rooms shall be met from the Library funds. Paragraph 16.-Nobody shall have any objection if any of my heirs or their families organize dances, amusements, music, etc., in connexion with any marriage ceremony or sradh ceremony or puja, etc. or hold any conference in the rooms on the floor above the Library. Everybody shall have equal right to hold these functions.

(2.) Babu Joy Kissen died in 1888. Rash Behari died in the year 1921 leaving no male issue. Shib Narayan died in the year 1923, defendant 1 is his eldest son. On 14 June 1928, defendant 1 executed a lease in favour of defendant 2, the son of Peary Mohan Mukherjee, of the entire land and the building for a term of 15 years. The material portion of this lease is this: According to the provisions contained in the will of late Joy Krishna Babu I am the sixteen annas owner of the Library building; only the Public Library is to occupy the middle floor of the said building and the servants of the Library are to put up in some portions of the outhouses. It is provided in the will that the repairing expenses of the outhouses and the middle floor would be met from the funds of the Library. After causing estimates to be prepared by competent engineers and contractors 1 find that a thorough repair of that building will cost Rs. 20,000 or Rs. 25,000. It being extremely inconvenient in my present circumstances to maintain that building by incurring such a large expense, I could not do the same up till now. Now, as you have agreed to give a thorough repair to that building at your own expense, I execute this document and agree and promise as follows: I grant you a rent free ijara settlement of the property described in the schedule, including the land underneath, building, compound, outhouses and all rights and interests for a term of 15 years from the date of this instrument . .. You will have to incur large expenses for repairing that building so I fix no rent for the ijara .... The outhouses on the northern and southern portion of this property exclusive of their possession by the Public Library according to the provisions of the will of Joy Krishna Babu are included in this lease .... The sum that will be spent by you in making proper, i. e., "thorough repairs" of this property shall be deemed to be the "premium" for this lease, but the same not having been determined at present, I fix the same approximately at Rs. 25,000 (twenty-five thousand rupees), for the stamp of this instrument. Be it expressed that even if your costs for repairs or "addition", "alteration" and "fittings connexion" etc., exceed or fall short of Rs. 25,000 (twenty-five thousand rupees), the term of this lease shall not be more or less than 15 years and in the event of your desiring to purchase this property within the term of this lease and serving me with notice, I shall remain bound by the covenant to execute in your favour a kobala for out and out sale and free from incumbrances on receipt of a consideration of thirty-five thousand rupees. Be it further expressed that your total costs of repairs, "addition, alteration and indispensably necessary fittings connexion" etc. must not be less than twenty thousand rupees . . . Excluding from the said property the right of possession and enjoyment by the Uttarpara Public Library under the terms of the will executed on 11 July 1879 by the late Joy Krishna Mukherjee the rest of the property is the subject-matter of this instrument.

(3.) On 30 July 1931, the present suit was instituted by the three grandsons of Peary Mohan and six other residents of Uttarpara in the Court of the District Judge of Hooghly under Section 92, Civil P. C., with the sanction of the Collector of Hooghly. The allegations in the plaint, so far as they are material for the purposes of this appeal, are these: Babu Joy Krishna Mukherjee dedicated to the Uttarpara Public Library the properties mentioned in Schedule C to the plaint, viz.: (1) In the ground floor of the main building, big hall and the room to the west thereof, five rooms in the north and the south, small circular room at the north-western corner together with one storeyed verandahs on the south and the east and staircases leading to the ground floor on the east and the west; (2) out-houses on the north and south of the main building; (3) vacant land known as Phulbagan (flower garden measuring about one and half bighas, to the east of the said building; (4) wall and masonry ghat on the bank of the Ganges.