HRISHIKESH RAY Vs. UPENDRA NATH MANDAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for recovery of arrears of rent and for enhancement of rent under Section 7, Ben. Ten. Act. The main question in appeal is whether the plaintiffs are entitled to enhance the rent under Section 7. The trial Court decided the issue in favour of the plaintiffs. In appeal the learned Subordinate Judge has decided the issue in favour of the defendants holding that the defendants tenure is held at a fixed rent and not liable to enhancement under Section 7.

(2.) Upon hearing the learned advocates on both sides it appears that the tenure consists of land over 700 bighas in area. The defendants predecessors obtained the tenure from the predecessors of the plaintiffs in the year 1855. Previously, before 1848, the estate was resumed by Government under Regn. 2 of 1819. Then it was settled to the plaintiffs predecessors for a period of 20 years. Afterwards in March 1868 it was permanently settled with the plaintiffs predecessors. Only a very small portion of the land had been brought under cultivation when the plaintiffs predecessors leased the land to one Gopal Nandi at a rent of Rs. 9 per annum. The said Gopal Nandi surrendered the lease. Then it was leased to Madhusudan Poddar at Rs. 19 per annum. He also surrendered the lease. Then in 1855 it was leased to the defendants predecessors at a rent of Rs. 22 per annum. In the patta and kabuliat, which were executed by the parties, it was stated that the tenancy was permanent and that there would be no increase or decrease of rent at any time; in other words that the rent be fixed for ever. In 1874 the tenants instituted a suit for damages against the landlords on the ground that the landlords had cut away certain trees, etc. The suit was compromised between the parties. The plaintiffs predecessors admitted that the defendants tenure was a permanent tenure. In order to put an end to disagreement between the parties the defendants agreed to an increase of rent by Rs. 19 making the rent payable hereafter at Rs. 41 per annum and it was stated that the rent of Rs. 41 would never be increased or diminished. The present suit was instituted in 1932.

(3.) If the matter would be treated as one of contract between free parties then the defendants claim would be correct that the rent of the tenure is fixed for ever. It is however proved that the property belongs not to the plaintiffs but to a certain idol, Sree Sree Krishna Rai Jiu, and the plaintiffs are shebaits of the said idol. It is urged that as shebaits of the deity their predecessors had no right to grant a permanent tenure at a fixed rate for ever. The law on the matter, which has been stated in many reported cases by their Lordships of the Judicial Committee, is that the power of a shebait of an idol to make an alienation is a limited power. Ordinarily a shebait cannot grant a permanent lease at a fixed rent, but he may do so in case of unavoidable necessity. On one side it is urged that apart from such necessity, to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time, would be a breach of duty in the shebaits: Abhiram Goswami V/s. Shyama Charan Nandi (1909) 36 Cal 1003. It is urged that in this case upon the evidence it cannot be held that the predecessors of the plaintiffs were under any unavoidable necessity to grant a permanent tenure at a fixed rate for ever. On the other side it is urged that where the validity of a permanent lease granted by a shebait comes in question a long time after the grant, so that it is not possible to ascertain what were the circumstances in which it was made, the Court should assume that the grant was made for necessity: Bawa Magniram Sitaram V/s. Kasturbhai Manibhai 1922 P C 163. Noting the principle of law we are to consider the facts of the present case. The learned Subordinate Judge noted his opinion thus: I am satisfied that this lease of 1854 was the best bargain then possible for the idol and that it was absolutely necessary for the very preservation of the property. Thus I find there was justifying necessity.