BRIJMOHANSINGH AMBARSINGH CHHATRI Vs. TULSIRAM SAKHARAM MAHAR

JUDGEMENT

(1.) THIS is a Letters Patent Appeal against a judgment of the Honourable the Chief Justice. In mauza Khairbodi in the Bhandara district one Sonya, an occupancy tenant, wished to transfer his holding to the defendant Tulsiram, and he accomplished this by the well-known device of arranging a surrender of the holding and a lease by the proprietary body to the intended transferee on the same day, the consent of the requisite authority being taken. The authority in this case was Govind Singh, the duly appointed lambardar gumashta, and the defendant paid consideration both to the transferor Sonya and to Govind Singh for his consent. Govind Singh is now dead, and another lambardar-gumashta has been appointed. The plaintiff Brijmohan Singh is the lambardar and a minor and his mother Mt. Chandnabai is his guardian. The minor lambardar brought a suit through his guardian to eject the defendant as a trespasser on the ground that Govind Singh had no authority to grant him a lease and that he had trespassed on the land without the consent of the lambardar. The defendant pleaded that Govind Singh as the lambardar gumashta had full authority to approve the transfer, which necessitated the granting of the lease. The plaintiff admitted that Govind Singh was managing the village on his behalf, but contended that he had authority only to collect rents and look after the general management of the village and accept surrenders, but no authority to enter into any transaction by way of lease.

(2.) THE trial Court found that the transaction between the two tenants amounted to a sale with the consent of Govind Singh and that even if the granting of a lease was outside the scope of the latter's powers as lambardar-gumashta, he had the implied consent of the plaintiff's guardian. The trial Court had no doubt that Govind Singh as lambardar-gumashta was empowered to consent to the transfer, and the plaintiff's suit was dismissed. This decision was reversed in the lower Appellate Court where the learned Judge considered that the only question arising for decision was whether Govind Singh could in his capacity as lambardar-gumashta lease out the land to the defendant and recognize him as a tenant and whether the defendant was a tenant or a trespasser. The learned Judge considered that as there was no pleading on the question of any implied authority given to Govind Singh by the plaintiff's guardian, the contention of an implied authority by her could not be used to defeat the plaintiff's claim.

(3.) THE learned Chief Justice held that if a lambardar is incapable of exercising his powers by reason of inter alia his minority and if he cannot act through an agent, these powers cannot be carried out at all; they cannot be carried out through a guardian, since the guardian is not entitled to represent the minor's cosharers, and no one is provided by statute to act on behalf of the lambardar in such a case except the lambardar-gumashta. The contention that a lambardar-gumashta is appointed solely for the purpose of performing the duties imposed on the lambardar by Section 188(1), Land Revenue Act and not to exercise the lambardar's powers was met by the conclusion that when the plaintiff was appointed lambardar, Govind Singh was not appointed as lambardar-gumashta but merely as a gumashta, or agent, and that Govind Singh was in fact appointed as an agent of the proprietary body to act on their behalf. The judgment proceeds: In my opinion it must be taken that all the cosharers were seeking an agent capable of acting and, failing agreement, were leaving it to the Revenue Court to say who that agent should be. I cannot believe that they were merely endeavouring to arrange for somebody to pay Government revenue, leaving the estate without anybody to manage it.