SIRISH CHANDRA BANERJEE Vs. DEBENDRA NATH BANERJEE

JUDGEMENT

(1.) The appeal has arisen out of a dispute as to the rights of the parties in a debuttar estate. The only two questions arising in this appeal are : (1) whether a lease granted by a receiver appointed by the Court to defendant 2 has been rightly cancelled by the lower appellate Court : (2) whether the lower appellate Court was correct in holding that the plaintiffs as co- shebaits with defendant 1 were entitled to remove the idol to their exclusive custody for seven and half months of the year. The appellants contend that the decision of the lower appellate Court on both these points is not justified in the circumstances of the case.

(2.) The lease was cancelled on the grounds: that (1) the receiver concealed from the Court the fact that the lessee was her own grandson and a brother of Sirish Chandra Banerjee the adopted son of Bama Sundari the previous shebait of the six annas share by virtue of a compromise with Promotho Nath Banerjee, The latter was the predecessor of the plaintiffs and shebait under the compromise of the ten annas share, in whose place the receiver was appointed by the Court. He died in 1924 and the receivership has been terminated by the Court.

(3.) The receiver has of course no power to lease the debuttar property without the sanction of the Court and the Court below has quite rightly held that any misrepresentation on concealment of material facts from the Court in connexion with a proposed lease would vitiate the authority of the receiver to grant the lease In the present case there was such concealment and it is possible that the Court might not have granted sanction to the lease or at least might have scrutinized the terms more closely had it known of the relationship. Another objection is that in the lease an additional clause was introduced which was not contained in the terms proposed in the application for sanction, i.e., that if the lessee was not paid the price of any permanent structures as settled by an engineer appointed by both parties, he would not be bound to give up the property. According to the application (the terms proposed which were sanctioned by the Court) the she baits were to pay to the lessee the full value of all such structures erected by the lessee. That being so, if the value was not paid the lessee would certainly be entitled at least to a lien on the property, so that the added clause did not really add very much to the terms sanctioned.