ADMINISTRATOR-GENERAL OF BENGAL Vs. BALKISSEN MISSER

JUDGEMENT

(1.) In this case the defendants, in my opinion, possess no merits, and deserve no sympathy. They possess no merits, because on the date when the suit was instituted none of them were clothed with a vestige of legal title to the premises in suit, which were originally known as 51- 3, Cotton Street, afterwards as No. 55, Cotton Street, and now as No. 10, Hanumanji Lane, Calcutta. And they are entitled to no sympathy because, if they had not admitted at the hearing that on the date when these proceeding were commenced they possessed no title to the premises, and the circumstances under which the property in the premises purported to have passed from the first and second defendants to one Ashutosh Pramanick, and subsequently to the fourth defendant, had been subjected to scrutiny in Court, I have more than a shrewd suspicion that it would have become apparent that the defendants at all material times were fully aware that none of them possessed any title or interest whatever in these premises. Moreover, it is clear that the Misser defendants were guilty of uttering deliberate falsehood (i) in asserting in a written statement filed in December 1911 in Suit No. 961 of 1911 that the said premises were not dedicated to the idol Sham Sunderjee; (ii) in alleging in a plaint filed in Suit No. 1217 of 1911 in the same month, "that they were the owners and proprietors of the house and premises No. 10, Hanumanji Gully, in the town of Calcutta, which was a four-storeyed building, and for upwards of a hundred years the plaintiffs and their predecessors in title had been in possession of the said premises in their own right;" and (3) in stating in an affidavit sworn on 20 October 1913 that "the premises belonged to them absolutely and for ever, and that the said premises were not affected by or with any <JGN>Page</JGN> 2 of 9 trust, public, religious or otherwise, of any sort or kind, and the said premises were their own absolute property." Further, it is clear from a letter written by the solicitors to the fourth defendant on the 23 January 1917, that the fourth defendant, who purchased the said premises at an auction sale directed by the Court in a mortgage suit filed by Pramanick against the Misser defendants, had been advised by counsel that the Misser defendants had no title to the premises, and yet, notwithstanding the advice given to him, that he was prepared to complete the purchase. It would be interesting to ascertain the circumstances under which Pramanick brought himself to accept the mortgage. It may be that these matters will be further ventilated hereafter, if it is deemed advisable to take criminal proceedings in respect of these transactions.

(2.) Sometime between 1842 and 1850 the premises in suit were acquired by the executors of one Asuram Burmon, a Hindu merchant of Burrabazar, Calcutta, and, pursuant to directions contained in his will, the premises were dedicated to the worship and service of Sham Sunderjee. By reason of the manner in which the dedication was effected the property in the said premises passed in its entirety to, and, until this suit was instituted, remained vested in the god Sham Sunderjee. In May 1917 the plaintiff, the Administrator General of Bengal, as administrator de bonis non of the estate of Asuram Burmon, and the Official Assignee as trustee of the funds appertaining to the said estate, were informed (as the fact was) that the Misser defendants in 1911 had succeeded in persuading the authorities to enter their names as the owners and occupiers of the premises in suit in the assessment book of the Records Department of the Corporation of Calcutta. It further transpired that in May 1912 the said defendants had mortgaged the premises to Pramanick for Rs. 8,000: that on the 27 June 1913, inasmuch as no part of the sum left had been repaid by the mortgagors as provided under the said mortgage deed, the mortgagee had filed a suit for sale of the said premises; that on the 22 December, 1914 a decree absolute for sale had been passed; and that the premises ultimately had been sold on the 18 November 1916 to the fourth defendant pursuant to the said decree for the sum of Rs. 25,200. The mortgage debt amounted to Rs. 9,903-2-4. On the 3 April 1917 a sum of Rs. 5,000 was paid by the auction purchaser to the Misser defendants, and the residue of the purchase price was paid into Court. In these circumstances on the 3 August 1917 the plaintiffs filed the present suit, inter alia, for a declaration that the premises in question formed part of the estate of Asuram Burmon, and that the plaintiff, the Administrator-General, was entitled as administrator de bonis non of Asuram Burmon's estate to possession thereof; that the indenture of mortgage of 14 May 1912 was void and inoperative; that the sale of the premises to Ashutosh Pramanick was invalid and inoperative, and that the fourth defendant under the auction sale acquired no right or interest therein. The plaintiffs also sought an order that the fourth defendant should be ordered to deliver up possession of the said premises to the Administrator-General, and asked for incidental relief.

(3.) Now, although for some time prior to the date when the present suit was instituted, the<JGN>Page</JGN> 3 of 9 Misser defendants,--and since May 1917 the fourth defendant--had been in actual possession of the said premises, I find that none of them had any title or interest therein, and that, at any rate up till the year 1911 when the Misser defendants procured the mutation of names in the Corporation assessment book, such possession was not adverse to the right and title of the person in whom the legal title to the premises was vested, whether such person was the idol Sham Sunderjee, or the plaintiffs. Until 1911 the Misser defendants occupied the said premises as de facto, not de jure shebaits of the idol, and not otherwise. The fourth defendant, however, admittedly was in possession of the premises on the date when these proceedings were commenced, and the plaintiffs are not entitled to succeed in this suit merely because they have satisfied me that the defendants would not have been justified in retaining possession of the premises after the person legally entitled thereto had demanded delivery of possession. For in a suit framed as this suit is, in ejectment, the plaintiffs must rely upon the strength of their own title, and cannot succeed unless they prove that the legal title to the premises is vested in them, and that they have been in possession of the premises, and have been ousted therefrom within 12 years before the present suit was filed.