Sree Sree Iswar Gopal Jieu Thakur Vs.
Pratapmal Bagaria & Ors  INSC 17 (14 March 1951)
ALI, SAIYID DAS, SUDHI RANJAN AIYAR, N.
CITATION: 1951 AIR 214 1951 SCR 322
CITATOR INFO :
R 1979 SC1880 (31)
Religious endowments--Alienation by
trustee--Legal necessity --Old transactions--Original parties and witnesses not
available-Value of recitals--Permanent lease--Not questioned by successive
trustees--Presumption of validity.
Where the issue is whether there was legal
necessity for a particular transaction, if all the original parties to the
transaction and those who could have given evidence on the relevant points have
passed away, a recital consisting of the principal circumstances of the case
assumes greater importance and cannot be lightly set aside.
Banga Chandra Dhar Biswas v. Jagat Kishore
Chowdhuri (43 I.A. 249) referred to.
Where the validity of a permanent lease
granted by a she bait has remained unquestioned for a very long time since the
grant, although it is not possible to ascertain fully what the circumstances
were in which it was made, the Court should assume that the grant was made for
necessity so as to be valid beyond the life time of the grantor.
333 Bawa Magniram Sitaram v. Kasturbhai
Manibhai (49 I.A. 54) referred to.
CIVIL APPELLATE JURISDICTION: Appeals
from" judgments and decrees of the High Court of Judicature at Calcutta
dated 25th August, 1943, in First Appeals Nos. 20 and 173 of 1939 which arose
out of a decision of the President of the Calcutta Improvement Tribunal in Case
No. 95 of 1935.
Civil Appeals Nos. 95 and 96 of 1949.
Panchanan Ghose (Upendra Chandra Mullick,
with him) for the appellant in Civil Appeal No. 95 and respondent in Civil
Appeal No. 96.
S.P. Sinha (Nagendra Nath Bose, with him) for
respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in
Civil Appeal No. 96.
S.N. Mukherjee, for respondent No. 4 in Civil
Appeal No. 95.
1951. March 14. The judgment of the Court was
delivered by FAZL ALl J.These appeals are directed against the judgment and
decree of the High Court of Judicature at Fort William in West Bengal,
confirming a decision of the President of the Calcutta Improvement Tribunal,
which modified an award of the First Land Acquisition Collector of Calcutta,
made under the Land Acquisition Act in respect of the acquisition of two
premises, which may conveniently be referred to as Nos. 140 and 141, Cotton
In order to understand the points of contest
between the various claimants to the compensation awarded in the case, it seems
necessary to refer to certain facts showing how they came to be interested in
the premises which are the subject-matter of the land acquisition proceedings.
These premises belonged at one time to one Sewanarayan Kalia, and afterwards
they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur,
installed by Sewanarayan Kalia at Chinsurah in the district of Hoogly.
Sewanarayan, who had three wives, died in 1836, leaving behind him his third
wife, Muni Bibi, two daughters by his 334 predeceased wives, these being Jiban
Kumari and Amrit Kumari, and a mistress named Kissen Dasi. On the 23rd August,
1836, these persons executed a deed of solenama which was in the nature of a
family arrangement, by which the remainder of the estate of Sewanarayan (i.e.,
what was left after excluding the dedicated properties) was divided in the
terms of his will, with the result that Muni Bibi got subject to certain
conditions, among other properties, the premises described as 140, Cotton
Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street.
Muni Bibi and Jiban Kumari also became the she baits of the Thakur or deity
with power to appoint their successors. On the 20th January, 1848, Muni Bibi by
an arpannama dedicated 140, Cotton Street, to the Thakur. It is recited in this
deed, among other things, that on account of annual droughts and inundation and
consequent diminution in the produce of the lands, certain properties dedicated
to the sewa of the deity had been sold for arrears of revenue, that "Jiban
Kumari had been making advances from her private funds for the expenses of
jatra, mahotsob etc., of the deity, when the amount fell short, this being
against the provisions laid down by her late husband", that the house
known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30
p.m., that after deducting the necessary expenses the surplus income left was
Rs. 20 p.m., and that "if this amount was included in the expenses for the
sheba etc., of the deity every month, the provision made by her deceased
husband may remain in force." After reciting these facts, it is stated
that the rental of the house "shall be permanently and perpetually
included in the expenses of the sheba." About 20 years later, on the 30th
September, 1869, Muni Bibi created a permanent (maurasi mokrari) lease of the
premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour
of one Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas
Johurry), at a rental of Rs. 25 p.m. (See exhibit L--a kabuliyat executed by
Nehal Chand in favour of Muni Bibi). In the same year, on the 8th 335 December,
Jiban Kumari granted a permanent lease to Bhairodas Johurry, in respect of the
premises known as 141, Cotton Street at a rental of Rs. 90 p.m. (See exhibit
K--a kabuliyat executed by Johurry in favour of Jiban Kumari). The main
question which has been raised in this case is whether the two ladies were
competent to give debutter properties by way of permanent lease to another
person. In 1870, Muni Bibi died, and, on the 15th January, 1872, Jiban Kumari
appointed Gourimoni Devi a shebait by a registered deed and dedicated the
premises known as 141, Cotton Street, to the deity. Both Jiban Kumari and
Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of
Gourimoni, became the shebait of the idol. During his minority, his father,
Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed
a usufructuary mortgage deed in respect of the Cotton Street properties to one
Lal Behari Dutt, on the 31 August, 1878. After the death of Raghubar Dayal one
Ajodhya Debi and after her one Kalicharan Dutta became the certificated
guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some
debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for
a sum of Rs. 2,230. On attaining majority, Gopaldas executed on the 17th
January, 1896, a usufructuary mortgage deed in respect of all debutter
properties including the Cotton Street houses in favour of Lal Behari Dutt for
paying the previous mortgage dues which amounted on that date to Rs. 4,955 and
odd. This deed provided among' other things that the mortgagee was to collect
rents, outgoings, carry on the sheba of the deity, and that whatever balance
was left out of the income of the property was to go towards the satisfaction
of the mortgage dues. Gopaldas died in 1900, leaving behind him surviving his
widow, Annapuma, who also died in 1905. By 1918, Lal Behari Dutt also was dead,
and his interest in the mortgaged properties, to which reference has been made,
was sold to one Naba Kishor Dutt on the 12th December, 1918. On the 17th
November, 1933, Naba Kishor assigned the mortgagee's 336 interest in the
mortgaged properties to two of the Bagarias, respondents 1 and 2 in appeal No.
95, and m the same year the three respondents (1 to 3) also acquired the
lessee's interest in the Cotton Street houses. The land acquisition
proceedings, which have given rise to these appeals, were started about the
year 1934 in respect of the premises bearing Nos. 140 and 141, Cotton Street,
as well as two adjoining premises with which we are not concerned in this case.
In these proceedings, the following claims were put forward by three sets of
1. The Bagarias (respondents 1 to 3 in appeal
No. 95) at first claimed the entire amount of compensation on the allegation
that they were the absolute owners of the premises in question, but later on
they claimed only as mortgagees and permanent lessees of those premises.
2. On behalf of the deity, the entire amount
of compensation money was claimed by Deosaran Singh and Ram Lakshman Singh, who
alleged themselves to be she baits, on the basis that the premises in question
were de butter properties of the deity, and the Bagarias had acquired no
interest therein either by the assignment of the usufructuary mortgage or the
alleged purchase of the tenant's rights in the properties.
3. Respondent No. 4 claimed compensation as a
lessee for 99 years on the basis of a lease alleged to have been given to him
by the original landlords.
In the present appeals, we are concerned with
the first two claims only, and we shall briefly state how they were dealt with
by the Collector and the courts below. On the 22nd May, 1935, the Collector
awarded Rs. 31,740 as compensation for landlord's interests, to be shared by
the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal
No. 95 in their capacity of usufructuary mortgagee, and awarded a sum of Rs.
1,58,000 to the respondents Nos. 1, 2 and a as compensation for their rights as
permanent tenants of the premises in question. Subsequently, 3 separate
petitions of reference were filed 337 by the a claimants against the
Collector's award and the reference made by the Collector in pursuance thereof
was registered as apportionment case No. 95 of 1935 in the Court of the
Calcutta Improvement Tribunal. Meanwhile, Deosaran Singh and Ram Lakshman
Singh, who had put in claims as shebaits, retired from the contest, and the
President of the Tribunal appointed one Narendra Nath Rudra as the next friend
of the deity to represent and protect its interests.
On the 31st August, 1938, the President of
the Tribunal gave his decision, by which he substantially upheld the award of
the Collector, but modified it in one respect only. He held that the
usufructuary mortgage, on the basis of which respondents 1 and 2 had put in a
claim, had been paid off and therefore they were not entitled to any
compensation, and the whole sum of Rs. 31,740 should be paid to the deity.
Respondents 1 to 3 however were held entitled
to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had
been created for legal necessity and therefore were binding on the deity, He
also held that the deity was not entitled to question the leases by virtue of
article 134 (a) of the Limitation Act. Regarding costs, he directed that all
costs incurred on behalf of the deity should be paid out of the compensation
money lying in deposit in court. Two appeals were thereafter preferred to the
High Court by the two main contesting parties and ultimately both these appeals
were dismissed, and the High Court upheld the decision of the Tribunal.
Subsequently, the present appeals were preferred to this Court, the deity
having obtained a certificate granting leave to appeal from the High Court, and
the Bagaria respondents having obtained special leave from the Privy Council to
prefer a cross appeal.
The main questions which arise in these
appeals are :-(1) whether the two mourasi mokrari leases, to which reference
has been made were justified by legal necessity; and 44 338 (2) whether the
mortgages on the basis of which the Bagarias had laid their claim to
compensation had been satisfied.
The first question arises in Appeal No. 05,
and the second question arises in Appeal No. 96.
So far as the question of legal necessity is
concerned, there are concurrent findings of the Tribunal and the High Court
against the appellant in appeal No. 95, but we allowed his counsel to argue the
question at some length, because it was urged before us that on the facts of
the case the point in issue was not a question of fact but one of mixed fact
and law, especially as the decision of the High Court turned upon the
construction of the leases and the inference drawn from the fact that the
permanent nature of the tenancy had remained unquestioned for a very long
The tenancy in question came into existence
as long ago as 1869, and it is not surprising that no direct evidence bearing
on the issue of legal necessity is available now.
We have therefore to fall back upon the
recitals in the documents, to ascertain the circumstances under which the
documents, exhibits L and K, were executed, because it is well settled that if
all the original parties to the transaction and those who could have given
evidence on the relevant points have passed away, a recital consisting of the
principal circumstances of the case assumes greater importance and cannot be
lightly set aside. [See Banga Chandra Dhar Biswas v. Jagat Kisore Chowdhuri(1)
1It appears to us that the recitals in the documents afford valuable evidence,
because the tenancies were created by two pious ladies who were keenly
interested in the sheba of the deity and with regard to whom it was not
suggested that they expected to derive any personal advantage from the
transactions in question. It seems to us most unlikely that they would be parties
to any untrue recitals merely to support the transaction. It may be recalled
here that in 1848, certain properties belonging to the deity had been sold for
arrears of rent, and Jiban Kumari (1) 43 I.A. 249.
339 had been supplementing the income of the
residue from her own properties for meeting the expenses of performing certain
essential services to the deity, such as jatra, mahotsob, etc. We also find
from the arpannama that the value of the property which is the subject matter
of the mokrari kabuliyat dated the 30th September, 1869 (exhibit L) was Rs.
2,000 in 1848, that it was not in the khas possession of Muni Bibi but had been
let out to a tenant and that its net income was Rs. 20 p.m. At the time when
the arpannama was executed, Muni Bibi clearly thought that the sum of _Rs. 20
p.m., if included in the expenses for the sheba of the deity, would enable the
sheba to be carried on without any extraneous help. From the recitals in
exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a
dilapidated condition and had collapsed in the rains of 1270 B.S. (1868 A.D.),
and Muni Bibi was unable to bear the expenses of constructing a new building at
the place. The problem before her therefore was whether the deity should go
without any income from this property, or she should enter into such an
arrangement as would secure a permanent income for the expenses of the deity,
which should not in any case be less than the income which the property had
theretofore yielded. She decided to choose what must have appeared to her to be
the better and more prudent course, with the result that she got a sum of Rs.
500 cash for the deity as the price of the materials which were sold to the
lessee, and also secured a regular monthly income of Rs. 25. There can be no
doubt that the transaction was in the best interests of the deity and clearly
beneficial to it.
A reference to the arpannama shows that the
house was in the possession of a, tenant even in 1848, and from the recitals in
the document it is clear that what Muni Bibi contemplated was that the house
should continue to remain in the possession of a tenant, and the rent of the
house should be used for the sheba of the deity. At that time, she did not
contemplate any other mode of using the property she was going to dedicate. We
do not know who was the tenant of the 340 house in 1848 and what were the
commitments of Muni Bibi at that time, but, even apart from these facts, it is
difficult to believe that a devout person like her, who was not only a shebait
but also the widow of the founder of the deity and who had shown such keen
interest for the upkeep of the worship of the deity, should have entered into
the transaction in question unless she considered it absolutely necessary to do
so. The contention put forward before us is that it has not been shown that
there was no other course open to Muni Bibi than to. grant a permanent lease in
respect of the property, but it is manifest that at this distance of time no
evidence can be available to show the actual pressure or necessity which
impelled Muni Bibi to adopt the course she did. It is now well settled that
where the validity of a permanent lease granted by a shebait is called into
question a long time after the grant, although it is not possible to
ascertainfully what the circumstances were in which it was made, the court
should assume that the grant was made for necessity so as to be valid beyond
the life of the grantor.
[See Bava Magniram Sitgram v. Kasturbhai
Manibhai(1)]. In the present case, the circumstances which can be gathered from
the recitals together with the fact that the document has remained unquestioned
for more than half a century, seem to us to be quite sufficient to support the
conclusion that the grant was made for legal necessity and is binding on the
deity. On the facts narrated, it would appear that there were several shebaits
between the death of Muni Bibi and the commencement of the present litigation,
but the lease was never impugned as being beyond the power of the shebait who
granted it. On the other hand, we find that the permanent character of the
lease was recognized in a deed executed by Gourimoni on the 18th October, 1873
(exhibit Y), and in a mortgage deed executed by Raghubar Dayal, the guardian of
Gopaldas, on the 31st August, 1878. The properties in question were
subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these
persons nor (1) 41 I. A. 54.
341 the mortgagees ever came forward to
question the permanent nature of the tenancy.
The counsel for the appellant relied upon
exhibit VI, which is a copy of the judgment of the High Court in a suit
instituted by Nabakishore Dutt in 1995 against the Administrator-General of
Bengal for the rent of the house in question. It appears from this judgment
that the tenancy was admitted by the defendant and it was also admitted by him
that rent was due, but he claimed that he was entitled to insist upon a receipt
specifying the money to have been paid as mourasi mokrari rent. The learned
Judge, who dealt with the case, however, thought that the point raised by the
defendant did not strictly speaking arise in a suit for rent, which according
to him could not be converted into a suit for declaration of title, and on that
basis, he passed a decree in favour of the plaintiff. The judgment does not say
in so many words that Nabakishore resisted the claim as to the tenancy being
mourasi mokrari, but, however that may be, assuming that such an assertion was
really made by him, it cannot affect the character of a tenancy which had remained
unquestioned for nearly half a century.
The legal position with regard to 141, Cotton
Street, is almost identical with that of the adjoining premises with which we
have already dealt. As has been already stated, a mourasi mokrari tenancy was
created by Jiban Kumari on the 8th December, 1869, as is evidenced by exhibit
K. This document recites among other things that the house which was the
subject of the lease, "stands in need of repairs and for want of such
repairs there is chance of some portion thereof breaking down during the
year." It also recites that whatever income was derived till then from
that house was derived by letting it out on rent and that the mourasi tenancy
was being created for the purpose of repairing the house and keeping it in
existence. At the end of the document, it is stated that "the shebait
shall keep the kabuliyat and patta in force and shall on taking the sum of Rs.
90 as rent, defray the expenses of the sheba of the deity." It is 342
noteworthy that the actual dedication of this property took place on the 15th
January, 1872, more than 2 years after the kabuliyat. On that date, a
registered deed of gift was executed by Jiban Kumari in favour of Srimathi
Gourimoni Debi and it was recited therein that the income of the house was
being dedicated by the former to the sheba of the deity.
There was also a further clause in that deed
to the following effect :-"In accordance with the terms of the solenama
the expenses of the Iswar seba shall be met from the income of those properties
which have been dedicated for the performance of the work of the said seba and
the amount by which the expenses for the festivals would fall short and the
expenses which would be incurred for repairs to house for sheba of the said
Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the
Brahman priest (now) employed and to be employed hereafter shall get (their)
salaries, from the income of the said property." On reading this document
along with the solenama and the mokrari lease granted by Jiban Kumari, it
appears that she dedicated the property after having created a mokrari lease,
that what she purported to dedicate was the income derived by way of rent from
the mourasi mokrari tenancy, and that she had dedicated this income for
specific purposes with the object of making up the deficit in the income
received from other debutter properties. If it is held that Jiban Kumari was an
absolute owner of the property at the time the mourasi mokrari lease was
granted and afterwards she dedicated only the income of the property then the
permanent lease cannot be assailed. If, on the other hand, it is held on
reading the solenama that Jiban Kumari had only a life estate in the house and
it was one of the terms of the solenama that after her death the expenses of
the deity were to be borne out of the income from the house, then in that case
the question may arise as to whether she was entitled to create a lease beyond
her lifetime. Such a question however does not need an elaborate answer,
because the same considerations which apply to 140, Cotton Street. will 343
apply to this house, and the presumption as to necessity which is raised by the
long lapse of time, would arise here also. This presumption is considerably
strengthened here as well as in the case of the lease granted by Muni Bibi, by
the fact that the grantor of the lease was so devoted to the object of the
endowment that it does not seem likely that she would have granted a permanent
lease unless she was impelled to do so by absolute necessity. It seems to us
therefore that the view taken by the High Court is substantially correct and
the respondents Nos. 1 and 2 are entitled to compensation as permanent lessees.
In this view, Appeal No. 95 must fail, and it is dismissed.
As to Appeal No. 96, it has been concurrently
found by the President of the Tribunal and the High Court that the appellants
have failed to prove by proper evidence that there is any money still due to
them on the usufructuary mortgage executed by Gopaldas in 1886. In arriving at
this finding, they have dealt with every possible argument that could be urged
and was urged on behalf of the appellants to show that the mortgage had not
been satisfied. This court has repeatedly held that it will not generally
interfere with concurrent findings on a pure question of fact, and nothing has
been shown on behalf of the appellants to induce us to depart from this rule.
In the result Appeal No. 96 also is dismissed.
Having regard to the circumstances of the
case, we shall make no order as to costs in either of these appeals.
Agent for the appellant in Civil Appeal No.
95 and respondent in Civil Appeal No. 96: Sukumar Ghose.
Agent for respondents Nos. 1 to 3 in Civil Appeal
No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96:S. C. Banerjee.
Agent for respondent No. 4 in Civil Appeal
No. 95: P.K. Chatterjee.