MOHAMMED ALI KHAN Vs. KANAILAL HALDAR

JUDGEMENT

(1.) This appeal has arisen out of a suit for declaration of plaintiffs title and for recovery of possession in a plot of land 3 bighas 6 cot. 12 ch. 29 sqr. feet in area in Tollygunge in the suburbs of Calcutta. The two plaintiffs are sons of one Satya Charan Haldar. Satya's mother and Sushila Devi were the two wives of one Nagendra who had by the latter another son named Sailendra. Sailendra died unmarried leaving Sushila as his heir. The plaintiffs as reversioners on the death of Sushila instituted this suit on the allegation that Sushila with a view to injure the reversionary interest of Satya, with whom she was on terms of bitter enmity, had granted a lease in respect of the property of which the defendants are the present holders.

(2.) The history of the lease is as follows: Sailendra died in 1907 and thereafter in 1912 there was a suit for partition between Satya and Sushila as the result of which the land in suit fell to Sushila's share. In July 1918 Sushila contracted a loan of Rs. 1,000 by executing a mortgage of a plot of 1 1/2 cot. of land in Tollygunge in favour of one Jitendra. Mohan Banerjee alleging that the money was required for performing the Sradh of her husband and of her son at Gaya. On 14 November 1919 she granted a lease of the land in suit in favour of one Ram Sashi Chaudhury on taking a Selami of Rs. 1,000 for a term of 99 years at a yearly rental of Rs. 100 and stipulating that the lessee would have the option of renewing the lease for 99 years at the rate of rent prevailing at the time of such renewal. As regards the necessity for the lease the following recital appears in the documents: At present there having arisen difficulty in the realization of rents from the tenants, and having been in need of money for the performance of Sradh of my late son Sailendra at Gayadham and for performance of duties for the spiritual benefits of my late husband and son, I on lawful grounds, took loan of Rs. 1,000 from Sreejut Jitendra Mohan Banerjee by executing a registered mortgage bond. And there is no possibility for the clearance of the said debt out of my present income. As the mortgagee is about to sue me for his dues and there is the possibility of my valuable properties being sold away on account of the suit aforesaid and for the improvement of the land given in the schedule below, which has got ditches in many places and as the land given in the schedule below is of small value, it is necessary to pay off the debt by letting it out on lease for a long term and to make improvement of the said land.

(3.) Ram Sashi Chaudhury had taken the lease on behalf, and in the interest of some Englishmen. He transferred the property to the Bombay Industrial Trust who did some work of improvement on the land after the transfer. The trust however was wound up, and before they did so they assigned the lease over to defendants 1 and 2 for a consideration of Rs. 8,000 on 21 April 1928. These defendants are said to have sublet portions of the land to the other defendants in the suit, and defendant 1 has erected a building on a small area out of it. The plaintiff's father Satya died in January 1926, Sushila died in April 1926. The present suit was instituted on 19 September 1928. An injunction was applied for to restrain the defendants from erecting the building, but as the building, the construction of which was said to have been going on, was very nearly complete and as it did not appear that any other construction was contemplated, the injunction was not granted. The defence was that the mortgage and the lease were justified on the ground of legal necessity and that defendants 1 and 2 were bonafide assignees of the lease and had acted in good faith. The Subordinate Judge having decreed the suit, defendant 1 has appealed.