K S BONNERJI Vs. SITANATH DAS

JUDGEMENT

(1.) On the 14 March 1910, a document was executed by Bhupendra Sri Ghosha, purporting to act on behalf and as attorney of his father, Protap Chandra Ghosha, by which a garden at Tallah was granted to the respondents under a mokurari lease, at the annual rent of Rs. 125, and a premium of Rs. 3,000. The respondents on the execution of the lease entered into and have since remained in possession of the property.

(2.) The question raised in this case is whether the lease conveyed to them any title at all. It is challenged in the following circumstances: The property in question originally belonged to Hara Chandra Ghose, who died in 1868. He was survived by his widow, four sons and two daughters. On the 7 May, 1880, a trust-deed was executed by all the interested persons, by which the property was placed in the hands of trustees for certain religious and charitable purposes. The two first trustees under the deed were the widow, Srimati Padmabati Dasi, and her eldest son, Sri Protap Chandra Ghosha. The deed contained the statement that upon the death of the widow the eldest son, Protap, should be the sole trustee, and on his death the second son, Sri Sarat Chandra Ghosha, should be the sole trustee, and so on. It also provided that during the absence of any trustee for over one year during his life, the person entitled to be the trustee immediately in succession to him should be appointed to the office of trustee for the time being. It is unnecessary to consider the exact terms of the deed or the nature of the trust for which the property was conveyed. For the present purpose it is sufficient to say that until the deed was challenged by a family suit that was instituted in 1910, it was accepted as creating a good trust, and the persona named were assumed to be exercising the duties of trustees. On the 16 April 1900 the widow died, and from that time Protap became, by the terms of the deed, the sole trustee. On the 31 December, 1900, he left Calcutta, and he only returned twice afterwards, the first of the two visits being after the execution of the lease. The lease was, as has been stated, executed by Bhupendra Ghosha, and all the preliminary negotiations and transactions must have been carried out by him, or someone on his behalf, because the evidence of Protap, which has been taken at some considerable length, makes plain that he had no knowledge of the matter until after it had taken place. He was asked when he was told that the land had been sold or perpetually leased to somebody, and his answer was he did not know. Then he was asked, "When did you come to know ?" and his reply was, "About the time when the High Court suit was commenced." That suit was instituted on the 31 May, 1910, after the date of the execution. Later on he is asked this "Do you know who gave the lease ? " and his answer is, "I did not know then. I came to know afterwards that it was done in my name under some power of attorney." Finally in re- examination he repeats this statement, and says, "I found my actual knowledge since I perused typewritten copy supplied to me by an outsider, which suggested many things, and made me curious." There is no evidence to which their Lordships attention has been directed in the long and tedious deposition which Protap was called upon to make which contradicts these statements and consequently it must be accepted that when this document was executed he had neither negotiated its contents, nor was he aware of them, The whole of the authority for the execution of that lease must be found in the power of attorney under which Bhupendra Ghosha purported to act, and the existence and extent of that authority is the chief question on this appeal.

(3.) In order, however, to see how this suit has arisen, it is necessary to go back a little in the family history. About the time of the execution of the lease, and possibly because of its execution, anxiety arose among the members of the family as to the way in which the affairs of the trust were being conducted, and in consequence a suit, to which reference has already been made, was instituted on the 31 May, 1910, by Sarat against Protap, as trustee, claiming to have the deed of trust declared void, charging Protap with misconduct as trustee, and asking for accounts against him. In the plaint this lease was challenged, though not on the ground now under consideration, The beneficiaries were made parties to the suit, and a settlement of the disputes was ultimately effected; but one of the parties being an infant, it was necessary to obtain the consent of the Court to the proposed terms. This was secured by a decree on the 2nd August, 1912, which declared that the general trusts of the deed were bad because the objects of the charity were far too indefinite, but the settlement of the litigation being approved by the learned Judge, his declaration was confined to the failure of the trusts, and to declaring that the properties that were the subject of the deed were merely charged with such necessary expenses as were incurred in the life-time of the lady for the maintenance and ownership of the sradh mentioned in the third clause, and the annual service mentioned in the fourth clause. The settlement released Protap from liability to recount for moneys received from the lease, but it appointed the second trustee in the order Sarat Chandra Ghosha, receiver of the estate, and express directions were reserved in these terms of settlement that he should be at liberty to take steps to recover and set aside the perpetual lease or leases granted by Protap.