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PETITIONER: SREE SREE ISWAR GOPAL JIEU THAKUR

       Vs.

RESPONDENT: PRATAPMAL BAGARIA AND OTHERS.(Civil Appeal No. 95 of 1949)PR

DATE OF JUDGMENT: 14/03/1951

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:  1951 AIR  214            1951 SCR  322  CITATOR INFO :  R          1979 SC1880  (31)

ACT:     Religious   endowments--Alienation   by   trustee--Legal necessity --Old transactions--Original parties and witnesses not available-Value of recitals--Permanent lease--Not  ques- tioned by successive trustees--Presumption of validity.

HEADNOTE:     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 shebait 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.

JUDGMENT:     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  respond- ents Nos. 1 to 3 in Civil Appeal No. 95 and appellants  Nos.

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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  Presi- dent 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 Street.    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  Ku- mari, 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  Bhairo- das Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p.m. (See exhibit K--a kabuliy-

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at 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  ap- pointed  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  includ- ing  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 persons:--     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  prem- ises in question, but later on they claimed only as  mortga- gees and permanent lessees of those premises.     2. On behalf of the deity, the entire amount of  compen- sation money was claimed by Deosaran Singh and Ram  Lakshman Singh,  who alleged themselves to be shebaits, on the  basis that  the premises in question were debutter  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  compen- sation  for landlord’s interests, to be shared by the  deity

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as  owner and two of the Bagarias, respondents Nos. 1 and  2 in appeal No. 95 in their capacity of usufructuary   mortga- gee,   and awarded a sum of Rs. 1,58,000 to the  respondents Nos.  1, 2 and a as compensation for their rights as  perma- nent  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  re- spondents 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  ap- peals 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 certif- icate 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 period.      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

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well settled that if all the original parties to the  trans- action and those who could have given evidence on the  rele- vant  points have passed away, a recital consisting  of  the principal  circumstances of the case assumes greater  impor- tance  and cannot be lightly set aside. [See  Banga  Chandra Dhar Biswas v. Jagat Kisore Chowdhuri(1) 1- It 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  trans- action.   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  cer- tain essential services to the deity, such as jatra,  mahot- sob, 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  inter- ests 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  transac- tion in question unless she considered it absolutely  neces- sary to do so. The contention put forward before us is  that it has not been shown that there was no other course open to

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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  Adminis- trator-General of Bengal for the rent of the house in  ques- tion.  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  re- mained 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 repair- ing 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

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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  follow- ing effect :--     "In  accordance with the terms of the solenama  the  ex- penses  of  the Iswar seba shall be met from the  income  of those properties which have been dedicated for the  perform- ance  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  mok- rari  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 moura- si  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  substan- tially 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

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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.                                           Appeals dismissed.     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. 344