ANANDA BANDHU DAS Vs. AMBICA CHARAN BHATTACHARJEE

JUDGEMENT

(1.) This is an appeal by some of the defendants, that is, defendants 7, 10, 16 and the representatives of the original defendant 14, against the judgment and decree of the Subordinate Judge, 2nd Court, Chittagong, dated 15 September 1925. The suit was originally brought by plaintiff 1. only by making plaintiff 2 a pro forma defendant who was subsequently transferred on his own application to the category of plaintiffs. These two plaintiffs claimed the property in suit as the reversionary heirs of one Bhabani Das Bhattacharya who died in October or November 1874 leaving a widow Bama Sundari surviving him. Bhabani had previously executed a will dated 28 July 1874, by which he had appointed several executors. The executors renounced their executorships and the widow applied for letters of administration with the copy of the will annexed which was granted to her on 8th February 1875. It appears that on 6 May 1879 the widow Bama Sundari executed two permanent leases in favour of one Gour Hari Das (Choudhury), the predecessor-in-interest. Of defendants 7 to 15, and the properties covered by these two leases are the only subject- matter of dispute in this appeal. The Subordinate Judge has made a decree for possession in favour of the plaintiffs making the defendants liable for mesne profits. Prom that decree these defendants have appealed to this Court.

(2.) The history after the grant of the letters of administration is that the agnates of Bhabani Das oppressed his widow in various ways so that she was obliged to leave the family dwelling- house of her husband and had to go to live in her father's residence. In September 1899 she applied to the District Judge for permission to sell certain properties. This permission was refused and in that order the District Judge made certain observations about the revocation of the letters granted to her. In November 1899 two of the executors applied for letters of administration with the will annexed of Bhabani Das and plaintiff 1 also made a similar application. In the meantime, on 28 September 1899, Bama Sundari sold her right to all the properties to the predecessor-in-interest of defendants 1 to 6. The learned District Judge granted letters of administration to one of the executors named Kebal Krishna Bhattacharji. On appeal the High Court set aside that order and the result was that the original grant to Bama Sundari was not interfered with. In September 1906 Bama Sundari brought the properties covered by the two pattas of 1879 to sale after having obtained a decree for rent. It will be noticed that this was after she had parted with all her interest in the properties left by her husband. The disputed properties were purchased by the predecessor-in-interest of defendants 16 to 19, who has been found to be a benamidar of the original lessee Gour Hari. Bama Sundari died on 10 January 1921, and this suit was brought by the plaintiffs to recover possession of the properties left by their maternal uncle Bhabani Das, of which the properties-subject to the aforesaid leases are now the subject-matter of this appeal. The ground urged by them is that there was no legal necessity for permanent leases; The Subordinate Judge in his judgment discusses various points and has come to the conclusion that the leases were not granted for legal necessity. He has further held that the widow had only limited powers of alienation as administratrix and had not the power before the passing of the Probate and Administration Act 1881 to grant permanent leases without the sanction of the District Judge. He has also held that the transaction entered into by the widow in granting permanent-leases was not a bona fide one. He appears to have been of opinion that the salami which was said to have been paid to the lady before the Sub-Registrar was not actually received by her, but that there was only a show of payment. In that view he has decreed the suit.

(3.) The first contention on behalf of the appellants is that the Subordinate Judge has misread the law as regards the powers of an administrator governed by the Hindu Wills Act before the passing of the Probate and -Administration Act as stated in Phillips and Trevelyan's book, on Hindu Wills 2nd edn., p. 225, by omitting a not in the quotation made by him. This is true. Their argument is that before the passing of the Probate; and Administration Act an administrator acting under the Hindu Wills Act had the same authority as an executor under Section 269, Succession Act, which was made applicable to Hindus by Section 2, Hindu; Wills Act. Section 269, Succession Act, 1865, runs thus: An executor or administrator has power to dispose of the property of the deceased, either wholly or in part in such manner as he may think at.