MONOHAR DAS MOHANTA Vs. TARINI CHARAN NANDI

JUDGEMENT

(1.) This appeal is by the defendant and arises out of a suit for specific performance of a contract. The land to which this contract related has an area of six cottahs situated at Chinsurah and was formerly in the possession of Madhusudan Das, Mohunt of Asthal, Burdwan. Plaintiff alleged that the mohunt leased out the land permanently to him on his paying a sum of Rs. 155 as selami and agreeing to pay rent at Rs. 11-8-0 per annum. Subsequently, a patta and a kabuliyat were executed but were not registered. In the meanwhile, the mohant died and was succeeded by the defendant Monohar Das Mohunt.

(2.) The defence to the suit was that the land was not the personal property of the former mohunt but that it was debuttar, that the defendant was not the successor and heir of the former mohunt, that, therefore, the suit did not lie against him, and that, inasmuch as the land was debuttar property and not personal property and contract for a permanent lease of the land was not binding upon the mohunt's successor. The trial Court held that the plaintiff was entitled to a decree for specific performance and gave a decree accordingly, and that decree was affirmed on appeal by the learned Subordinate Judge of Hoogly.

(3.) The main contention which has been urged before us on behalf of the appellant is that the Court of appeal below was wrong in holding that a permanent lease was within the powers of mohunt if it was for the benefit of the estate, and it is argued that the real question is not whether there was benefit to the estate, but whether there was necessity. Reference has been made to the decision of Judicial Committee of the Privy Council on the subject in the case of Abhiram Goswami V/s. Shyama Charan Nandi [1909] 36 Cal. 1003. Their Lordships of the Privy Council observed in that ease: It is wall settled law that the power of the mohunt to alienate debuttar property is, like the power of the manager for an infant heir, limited to cases of unavoidable necessity.