NIRANJAN MUKERJEE Vs. SHIB PROSAD MUKERJI

JUDGEMENT

(1.) This is an appeal by the plaintiff against a decision of the learned District Judge of the 24- Pergannas, dated the 18th September 1912, modifying a decision of the Munsif at Sealdah. The suit was brought by the plaintiff to recover possession of a certain plot of land that had been awarded to him in a certain partition suit. The defence set up by the contesting defendant, namely, the tenant, was that he had obtained a permanent lease of the property from the owners prior to the partition. The learned Judge in the Court of Appeal below has found these facts and they are not seriously controverted:---That, on the 13th November 1894, the contesting defendant took a lease from the Goswami defendants who were then the co-sharers of the property. The person representing an one-fifth interest in the property was a Hindu widow named Tripura Sundari, to the estate of whose husband the present plaintiff succeeded on the death of Tripura. The learned Judge has found that that lease, so far as regards the interest of Tripura, was not granted for legal necessity. Therefore, the statement made in the lease of the reasons that moved the Hindu widow to grant this permanent lease obviously was disbelieved by the learned Judge. The question, therefore, arises in the present suit, this property having fallen to the lot of the plaintiff, to what extent, if at all, is he bound by the lease granted by the other four co-sharers and Tripura." The learned Judge in the Court below has held that the plaintiff is bound, at any rate, as regards a portion of the interest so granted and that, therefore, he is not entitled to get actual possession of the land sued for. That seems to be unsupported by the authorities. The findings made in this case show that, as regards one-fifth of the property, the lease was not binding beyond the lifetime of Tripura and, therefore, the reversioner, who is the present plaintiff, is not bound by the terms of that lease. In that view, the lessee had a lease of an undivided four-fifths of the property which was comprised in the lease. There was also a lease of an undivided one-fifth during the lifetime of Tripura. Under the law laid down in a series of decisions in this Court of which two examples may be given, namely, the cases of Byjnath Lal v. Ramoodeen Chaudhry (1) and Tarini Kanti Mojumdar v. Ishur Chandra Chakravarty (2) a person taking an interest from persons who have an undivided interest in the property takes subject to the rights of the other co-sharers who are not bound by the transaction, namely, that if the property comes to be partitioned, the rights of the other co-sharers not bound by the lease, as it is in the present case, would not be affected by the grant of the lease. In the present case, the property comprised in the lease has fallen to the lot of the plaintiff. The persons who were the lessors of the four-fifths received on the partition other properties and, therefore, if the present lease stands as against the plaintiff and in his view is not a favourable lease, the property allotted to the plaintiff is seriously affected and cannot be in value anything like the property as the property which has been awarded to the other co-sharers of which they have received actual possession. That is so far as the case set up by the plaintiff is concerned. Against that, the defendant says that this transaction by the widow Tripura, joining along with the other co-sharers in granting a permanent lease of a piece of land that was jungle, must have been beneficial to the estate of her deceased husband. That case was not set up and was not tried. The case that was put forward and tried was the case of legal necessity as evidenced by the recitals in the lease. Those recitals were found to be wholly illusory and no case of legal necessity such as is mentioned in the recitals was proved to the satisfaction of the Judge. The case of benefit, namely, that the widow should join in this permanent lease at a small rent to benefit the estate has not been tried and we cannot at this stage of the proceeding consider a totally new case.

(2.) Then, another point was urged by the respondent, namely, that the widow along with the other co-sharers purchased this property, it having been brought to sale in execution of a decree against the widow and the other co-sharers. It is said that the presumption is that the widow purchased that out of her own money for her own benefit. The first point is, "Is there anything in this case to show for what purpose the property was, in fact, brought to sale and the decree passed, in execution of which the property was sold." It appears that the widow s husband had died fifty years prior to the suit. There can be no presumption, I take it, that a Hindu who has been dead for fifty years still has liabilities outstanding. Any such liability would apparently be barred years before under the law of limitation of suits; and if such a case is set up that the property was brought to sale for the liability of the husband who has been dead for fifty years, the onus in that case would lie on the person who says that the suit was brought fur that purpose. In the present case, there cannot be any doubt that it was not so. Everything points to the fact that it was probably that the co-sharers failed to keep down the rent or revenue or some other obligation for which they were responsible and the suit was brought and the property was repurchased by the co-sharers including the widow and the widow having an income of Rs. 200 or Rs. 300 a year from her husband s estate, everything points to the fact that the purchase was made by the widow out of the income of her husband s property. This case, I am quite satisfied, was not raised very definitely in the Court of first instance. It was dealt with much more clearly by the learned District Judge. But I think the learned District Judge had ample warrant in finding that the re-purchase by the widow put the property back to exactly the same position as it was before the decree and the sale in execution thereunder. A reversioner cannot be ousted in a manner like this and although the learned Vakil may be right that, in the ordinary case, the purchase by the widow cannot be presumed to be made out of the income of her husband s estate, where the widow permits the property to be sold in execution more than fifty years after the death of the husband and purchases it herself, I am not sure that different considerations do not apply. I think the learned Judge had ample warrant in coming to the conclusion that this purchase was, in fact, made by the widow for the benefit of the estate. That is the position and how the matter stands. I think, on the view of the law, the learned Judgeought to have come to the conclusion that the lessee took the lease from the co-sharers subject to the right that the plaintiff would have on partition, namely, that if this property fell to the lot of the plaintiff, the plaintiff would not be bound by the lease granted by the other co-sharers. In that view, the plaintiff ought, I think, be given possession of the land he sues for. The question then is--- "What is the position of the lessee against the other co-sharers?" Can we deal with that in this case? I think, on the whole, it would not be wise to do so. Of course, the lease as against the other co-sharers is a perfectly good lease. The lessee is entitled, on general principles that have been followed in cases with reference to mortgages and also to leases, to have a lease of property of corresponding value given to him out of the properties that have been awarded to the other co-sharers in the partition suit. Those other co-share s except the minors have not appeared in the present appeal. I think it would be much better to leave the lessee to enforce his rights as against the other co-sharers of getting a lease of property of equal value out of the properties allotted to them in a separate suit. The present appeal, I think, ought to be allowed with costs and, in lieu of the decree passed by the learned District Judge, the plaintiff ought to be given a decree for Khas possession of the whole of the property that has fallen to him on partition. The cross-objection is dismissed with costs. Smither, J.

(3.) I agree. The plaintiff has inherited as reversioner, after a Hindu widow. There being no legal necessity, the Hindu widow could not place a sikmi, to last beyond her own life, on the share. Also, the other co-sharers could not put any kind of encumbrance on this share. Therefore, the plaintiff s share, and the allotment which he now has in place of his share, is free. The sikmidar must follow the allotments of the other co-sharers, who created the sikmi. The plaintiff must get khas possession of his allotment as against the sikmidar.