KAMINI DEBI Vs. PRAMATHA NATH MOOKERJEE

JUDGEMENT

(1.) The substantial quest ion of law, which calls for our decision in this Rule, relates to the true construction of Section 32 of the Land Acquisition Act of 1894, and is apparently of first impression, in so far, at any rate, as the Courts of this country are concerned. There is no controversy as to the circumstances under which the order of the Court below now under consideration, was made. The petitioner before us is the present shebait of an idol, Gopaljiu, to whom considerable properties were dedicated by her father, Ram Kamal Mukherjee, under a testamentary disposition made on the 4th February, 1845. Ever since the foundation of the endowment there has been litigation relating to the properties, the most recent instance of which will be found reported in the case of Aghore Nath Mukerjee v. Srimati Kamini Debi (1909) 11 C.L.J. 461. By this decision given on the 15th December, 1909, the right of the petitioner to the office of shebait was declared.

(2.) It appears that before the petitioner had been appointed shebait, a portion of the debuttar estate had been acquired, under the Land Acquisition Act, by the Government at the instance of the Commissioners of the Port of Calcutta. The sum awarded as compensation was invested in Government securities of the nominal value of Rs. 32,500. On the 24th September, 1910, the petitioner applied to the Land Acquisition Judge for an order to pay her Rs. 24,000 oat of the compensation money, to enable her to improve the debuttar property, and execute necessary repairs to the buildings, in one of which the idol is located. This application was opposed by representatives of the founder, who have no present interest in the endowment, but may possibly, at some future time, succeed to the office of shebait. The Land Acquisition Judge dismissed the application on the 18th November without any enquiry into the merits. The learned Judge held that, as the petitioner was not absolutely entitled to the compensation money in her capacity as shebait, she could not claim to draw any portion of the invested funds; and that, in. any event, the money ought not to be placed at her disposal, because the Court had no machinery to exercise any effective control over the expenditure.

(3.) The petitioner obtained this Rule on the 38th November, 1910, for reversal of the order in question, on the ground that the learned Judge had erroneously refused, to exercise the jurisdiction, vested in. him. by law. In support of the Rule it has been contended that the terms of Section 32 are comprehensive enough to authorise the Land Acquisition Judge to allow the petitioner to spend a portion of the compensation money with, a view to effect necessary repairs to the debuttar property; this position, it; has been, maintained, is established by the cases of Exp. Rector of Grimoldby (1876) 2 Ch. D. 225. In re Aldred s Estate (1873) L.R. 17 Eq. 156, and Exp. Rector of St. Botolph (1894) 3 Ch. D. 544. In answer to this contention it has been argued by the learned vakil for the opposite party that repairs and permanent improvements do not fall within Clause (1) or Clause (2) of Section 32 of the Land Acquisition Act, and in support of this view reference has been made to the cases of Drake v. Trefusis (1875) L.R. 10 Ch. App. 364. In re Leigh s Estate (1871) L.R. Ch. 6 App. 887, In re Nether Stowey Vicarage (1873) L.R. 17 Eq. 156, Brunskill v. Caird (1873) L.R. 16 Eq. 493 Exp. Rector of Newton Heath (1896) 44 W.R. 645, In re Venour s Settled Estate (1876) 2 Ch. D. 526, Vine v. Raleigh (1891) 2 Ch. 13 and In re Jerard s Settled Estate (1893) 3 Ch. 252. The question raised is of considerable importance, and by no means free from difficulty; the solution of it must obviously depend upon the true construction of the statutory provisions on the subject.