JNANANJAN BANERJEE Vs. ADOREMONEY DASSEE

JUDGEMENT

(1.) This suit is brought by the plaintiffs to recover possession of house property in Calcutta as shebaits of a family idol on the ground that the property is debutter and that it is held by the defendant, Adoremoney Dassee, under a title founded on a permanent lease illegally granted by some of the previous shebaits. There is no doubt that they are the sons of one of the grandsons of one Ram Chandra Banerjee by whom it is alleged that the endowment was granted, or by whom the property in: suit was held as debutter. Their pedigree has been satisfactorily proved and if the debutter is proved, they have made out their claim, subject to the case made by the defendant and the law of limitation.

(2.) The facts on which Sreemutty Adore-money, the only contesting defendant, founds her case are as follows: On the 2 July, 1877, a mourasi lease of the premises in question was granted to one Sri Ram Banerjee by three out of four of the grandsons of Ram Chandra of whom it was alleged that one was insane, and who together represented Ram Chandra's estate. Of the three grantors, one was the plaintiff's father, another their uncle and another their father's first cousin. Subsequently the uncle and his cousin sold their reversionary interests to Sri Ram the former being entitled to one-sixth, the latter to one-half of the whole. Sri Ram mortgaged the premises to Bholanath Chakrabutty, and after his death, his heir Natai Chanel Chakra-butty obtained a decree on this mortgage and brought the premises to sale, when they were bought by one Girish Chundra Bose in 1906, who died the same year leaving Adoremoney, his heiress. She is, accordingly, the principal defendant, the others being representatives of Sri Ram and the other shebaits whose position it is not necessary for the moment to consider. Her defence, so far as I need consider it, is a statement that she is and her predecessor was, in exclusive possession of the premises, and a denial that the plaintiffs have any title thereto. She then sets up the mourasi lease in question, dated the 22nd July 1877, denies that it was granted without necessity, or that it was in breach of any trust reposed in the lessors or that there ever was any such trust, and she asserts that the lessors were justified in granting the lease and that it is binding on the plaintiffs. She afterwards alleges that her husband, from whom she inherited the property, was bona fide purchaser for value of the premises without notice of any decimeter and pleads that the suit is haired by limitation. As the case was argued before me the last, point afforded the main ground of the defence; but before considering it, it is convenient that I should first notice the contention of the defendant that no dedication has been proved with sufficient certainty to support the plaintiffs case. The plaintiffs produce no evidence of actual dedication either by writing or verbally. But we find that a dedication was referred to in a deed of partition entered into between the two surviving sons of Ram Chandra, that it was found to exist in a decree between the son of one of these sons and the other son in 1874, and that an enquiry was directed to ascertain as to how much of certain scheduled land was affected by it. It does not appear on the decree that these lands are identical with those in suit, but the only boundary that is of a permanent character, namely, a public road, is the same in the schedule and in the mourasi deed, and this point was not raised till it was too late for the plaintiffs to produce evidence on it. No books of account are produced; but there is oral evidence which though weak, I see no particular reason for disbelieving", including that given by the only witness Called for the defendant, that the land was debutter. Were this all, I should have doubts about finding in favour of the debutter but the contents of the mourasi lease where the debutter is recited and provisions inserted in consequence of its existence seem to me decisive and I find that the land in question was debutter at the time of the mourasi lease.

(3.) Another point to be considered before I deal with the question of limitation is whether" the permanent lease was invalid which the defendant asserts there is nothing to shew that it was. I cannot agree with this view. The shebaits pin-ported to relinquish all future increment in the value of the property for a little more than seven years purchase of the rents arising from it, reserving apparently about the rent that was then being raised and two of the three shebaits concerned subsequently parted with all their interests to the permanent lessee. We have no evidence at all as to what happened to the money so raised. I find it impossible to suppose that this was jus tillable in the interests of the endowment,. I have been referred to the case of Nawab Sir Syed Hossein Ali Khan V/s. Mohant Bhagwan Das 11 C.W.N. 261 : 34 C. 249 : 6 C.L.J. 442 as an authority Justifying the alienation in this case. I need only say that that case and the present are very different in their circumstances and I am not aware of any authority more nearly supporting the defendant's contention. The necessity for alienation recited in the lease itself seems to me illusory. It was that the shebaits might be called on to fill up a tank on the property which they could not afford to do. There is some insignificant evidence that a tank was filled up by Sri Ram but I cannot suppose that the advisability of filling it up constituted a necessity that justified alienation of the trust property. In order to consider the question of limitation, I have now to add only that the defendant's statement that Girish Chandra Hose had no notice of the debutter at the time of the sale to him cannot be sustained; as it is proved that a notice as alleged in Section 17 of the plaint was given.