JAGADISH CHANDRA Vs. JOGENDRA NATH

JUDGEMENT

(1.) The appellants before us are the shebaits of certain idols and as plaintiffs they commenced a suit in the Court of the third Subordinate Judge at Dacca for a declaration that the defendants hold the property in suit, not as permanent tenants but as tenants at will under the deities, at a rental of Rs. 4-11-0 per month. There was also a prayer for recovery of rent from the defendants at that rate from Baisakh 1341 to Chaitra 1343 B.S. The material facts which are not in controversy may be shortly stated as follows: The disputed property is a house together with the land underneath and is situated at Kumartooli in the town of Dacca. It admittedly-belonged to two brothers Kebal Sen and Kanai Sen. These two brothers established two idols known as Sri Sri Sudarsan Chakra Jew and Sri Sri Gobind Jew, and dedicated jointly, in favour of them, seven house properties including the property in suit. On 9 September 1854, Kebal and Kanai jointly executed a will by which four persons to wit Ram Chandra Sur, Guru Charan Sur, Sonamani Sur and Lakhimani Sur were appointed shebaits of these deities. After the death of Kebal, Ramchandra and Sonarnani, Kanai executed a deed of arpannama on 12 July 1865, by which he re-dedicated to the deities his 8 annas share in the seven houses referred to above and also made gift of his share in certain additional properties to them, directing at the same time that one Madhab Chandra Sur and his heirs would be the shebaits of the deities in respect to the properties thus dedicated. Lakhimani died after that, and the position then was that Madhab Sur the new shebait exercised the rights of management with regard to 8 annas share of the debuttar property which was dedicated by Kanai, while Gurucharan the other she-bait purported to manage the remaining 8 annas share.

(2.) On 16 March 1870, Guru Charan by a died which was described as a kayemi keraya potta leased out in perpetuity an 8 annas share in the disputed house to one Gourmani Dasya at a fixed rental of Rs. 24 a year. On 29 April 1870, Madhab the other shebait executed a similar patta in favour of the same lessee, by which an 8 annas share in the disputed premises as well as two other properties were permanently let out to her at a consolidated rental of Rs. 60 a year. The shebaiti right of Guru Charan gradually devolved upon Bhagi-rath and Rakhal and they executed an arpannama on 28 August 1900, by which they surrendered their rights as shebaits in favour of Madhab; Madhab thus became the sole shebait in respect of the entire debuttar estate. On 17 June 1915, Madhab by an arpannama transferred his shebaiti right to his two sons Gobind and Brojendra, and after their death, the present plaintiffs became the shebaits. In the meantime, the leasehold interest of Gourmani in the disputed house was sold in execution of a decree against her on 18 January 1877, and it was purchased by two persons named Lai Mohan Pal and Pajoo Pal. On 21 March 1899, Pajoo Pal sold his interest to Lal Mohan who thus became the sole lessee in respect of the disputed premises. The defendants in the suit are the succes-sors-in-interest of Lal Mohan and they are holding the disputed property at an yearly rental of Rs. 56-4-0 which is made up of Rs. 24 of Guru Charan's lease, and Rs. 32-4-0 as the proportionate share of rent reserved by the lease granted by Madhab. The plaintiffs case in substance was that there being no legal necessity justifying a permanent alienation of the debuttar estate the leases granted by Guru Charan and Madhab were not binding on the deities, and consequently the defendants could not but have the status of tenants at will under the deities, in respect to the premises in suit.

(3.) So far as the plaintiffs claim for rent was concerned, there was practically no defence by the defendants and the whole controversy centred round the point as to whether the defendants could claim the status of permanent tenants under the two documents mentioned above. Both the Courts below have decided this point in favour of the defendants and the plaintiffs have now come up on second appeal to this pourt. Mr. Chakravarty appearing in support of the appeal has not disputed before us that the two pottas granted by the two shebaits to Gourmani Dasi do purport to create permanent rights in the lessee. It is also conceded that as the documents are very old, and the original parties to the transaction have long passed away the recitals of legal necessity contained in the documents cannot be lightly brushed aside. In fact one of the leases (Ex. D) which was granted by Madhab did come up for consideration before this Court in Lakshmi Narayan V/s. Jagadish ,and it was held by Jack and Khundkar JJ. on the strength of these recitals and other circumstances that a valid permanent lease was created by the shebait. Mr. Chakra-varty's first and main contention is that as in the case before us, the leases were granted separately by the two shebaits and each purported to be for a specific share which the grantor claimed in the idols property, they could not be regarded as acts of the deities or binding on them.