MAHENDRA NATH SRIMANI Vs. KAILASH NATH DAS

JUDGEMENT

(1.) This is an appeal by the plaintiff against the judgment and decree of the Subordinate Judge, 2nd Court, 24 Parganas, dated 6 August 1925. The appeal arises out of a suit for ejectment and for mesne profits or, in the alternative, if the Court holds that the plaintiff is bound to grant a lease to the defendants, then for fixing the rent at the rate of Rs. 25 per cottah per mensem. The Subordinate Judge has dismissed the claim for ejectment and for mesne profits but has directed that the plaintiff is bound to grant a lease to the defendants in terms of the contract, I shall relate presently, at the rent of Rs. 5 per cotta per mensem.

(2.) The facts of the case giving rise to this litigation are as follows: The property in suit along with other properties belonged to one Jadab Krishna Singha. He died in the year 1867 leaving his mother Padmamani, two widows Lakshmipriya and Fulkumari and a daughter Probhabati,him surviving. After his death, Fulkumari brought a suit for partition which ended in a compromise. Under the compromise, Padmamani Lakshmipriya and Pulkumari each got one-third of the estate left by Jadab Krishna. Lakshmipriya died in 1878 and, therefore, Pulkumari got two-thirds of the estate left by Jadab Krishna as the successor of Lakshmipriya's interest. There was subsequently a suit by certain creditors against Fulkumari who obtained a decree in the Munsif's Court and put her interest to sale. It was purchased by one Krishna Prosad on 28 February l883. On 16 July 1888, Probhabati purchased the two-thirds share from Krishna Prosad and she thus became entitled to the two-thirds share in the estate having purchased the widow's interest of Fulkumari in it. On 26 May 1895, Padmamani granted a lease of her one-third .share to Prabhabati for 21 years. The lease was to terminate in May 1916. On 11 July 1902 Prabhabati granted a lease to the predecessors of the defendants of the disputed property and its contiguous portion for a period of 20 years. The lease was to commence from 17 March 1902 and it was to terminate on 17 March 1922. Prabhabati had three sons at the time: Ajay, Achal and Ashoke. Ajay and Achal had attained majority but Ashoke was a minor. In the lease Ajay and Achal joined their mother although they could possibly have no interest in the property under the law and Prabhabati purported to execute it as guardian for Ashoke. It should be stated here that Prabhabati's husband was alive and at that time he was the natural guardian of the minor Ashoke. In the lease there was a stipulation that the major lessors would procure confirmation of the lease from Ashoke on his attaining majority and there was an indemnity clause if they failed to do so. Although nothing turnsupon that, it should be stated that no deed of confirmation, as stipulated, was executed or registered by Ashoke on his attaining majority. In this lease there was a clause for renewal for 10 years after the expiry of the term at the option of the lessees. It is stated at the place where the demise has been made for 20 years down to 17 March 1922, that at the option of the lessee the lease would continue for a further term of ten years to be determinable nevertheless under certain circumstances which it is unnecessary to mention. At the end of the document there is the stipulation which should be given in extenso: Provided also and it is hereby agreed that if the lessees shall be desirous of taking a new lease of the premises hereby demised after the expiration of the said term of 20 years here by granted the lessor and all Other necessary parties if any will make and execute to the lessees at their costs a new and effectual lease of all and singular the said premises hereby granted or demised for a term of ten years to commence from and after the expiration of the term hereby granted at and under the like rents and dues but in case of the said business of the lessees being at the time in a flourishing condition and the said demised premises having increased in value at and under the rents and dues to be fixed by the lessor on reference to aforesaid circumstances and subject to the like covenants and provisions as are herein contained etc.

(3.) In the year 1909 there was further trouble among the ladies which was settled by the three ladies i.e., Padmamani, Fulkumari and Prabhabati, surrendering their estates in favour of the three reversionery heirs of Jadab Krishna, viz., Ajay, Achal and Ashoke on certain conditions as to receipt of maintenance by Padmamani and Fulkumari. These three grandsons of Jadab Krishna in their turn executed a document in favour of their father and mother giving them the right to enjoy the usufruct of all the properties they had thus obtained during their lifetime. The husband of Prabhabati died in the year 1912. Prabhabati herself died on 11th April 1916. In the meantime, Padmamani died in the year 1913. Fulkumari is still alive. On 15 September 1917 the three brothers effected a partition of their properties including the property which had been leased by Prabhabati to the defendant's predecessors. The division of these properties was made by metes and bounds. They were divided into three plots and after partition, plot A fell to the share of Ashoke, plot B to the share of Ajay and plot G to the share of Achal. The areas of these three plots are different, apparently having regard to their value. After the partition, the rent payable by the defendants predecessors which was Rs. 220, was divided. Ashoke was to get Rs. 82, Ajay another sum of Rs. 82, and Achal Rs. 56 per month; and all these three brothers separately realized their rent in that share. The present plaintiff then purchased plot A from Ashoke by a deed dated 20 October 1917. Then there was a dispute between the plaintiff and the predecessors of the defendants and the plaintiff brought a suit for ejectment. That was settled by the defendants predecessors purchasing a half-share of the property which the plaintiff had purhased from Ashoke by a deed dated 1 August 1921, the purchase price being at the rate of Rs. 3000 per cotta.