Sree Sree Iswar Gopal Jieu Thakur v. Pratapmal Bagaria and Others
-FAZL ALI J.-These appeals are directed againstthe ra:i~uJ.
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 Tribu-
nal, which modified an award of the First Land Acqui-
sition 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 pre
mises which are the subject-matter of the land acquisi
tion 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 behiQd him
his third wife, Muni Bibi, two daughters by his
1951 predeceased wives, these being Jiban Kumari and
S S- 1 Amrit Kumari, and a mistress named Kissen Dasi.
"" '" '"""'O A Gopa! Jieu n the 23rd ugust, 1836, these persons executed a
Thakur deed of solenama which was in the nature of a family
v. arrangement, by which the remainder of the estate of
Pratapmal Sewanarayan (i.e., what was left after excluding the
Bagai-ia and dedicated properties) was divided in the terms of his
Otlw•. will, with the result that Muni Bibi got subject to
ra.z Ali J. 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 shebaits of
the Thakur or deity with power to appoint their suc
cessors. On the 20th January, 1848, Muni Bibi by an
arpannamadedicated 140, Cotton Street, to the Thakur.
It is recited in this deed, among other things, that on
account of annual droughts and inundation and conse
quent 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 yield
ing 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 jncluded 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
S.C.R. SUPREME COURT REPORTS 335
December, Jiban Kumari granted a permanent lease to 1951
Bhairodas Johurry, in respect of the premises known 8 8- 1
as 141, Cotton Street at a rental of Rs. 90 p. m. (See r;op:•J:;,a•
exhibit K-a kabuliyat executed by Johurry in favour 1.'hakur
of Jiban Kumari). The main question which has been v.
raised in this case is whether the two ladies were com- Pratapmal
petent to give debutter properties by way of perma- Ba~;=s~nd
nent lease to another person. In 1870, Muni Bibi died,
and, on the 15th January, 1872, Jib an Kumari F'azl Ali J.
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, be-
came his certificated guardian, and, in that capacity,
he executed a usufructuary mortgage deed in respect
of the Cotton Street properties to one Lal Behari D_utt,
on the 31 August, 1878. After the death of Raghubar
Dayal one Ajodhya Debi and after her one Kalicharan
Dutta became the certifiqi.ted 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, Annapurna, 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 Novem-
ber, 1933, Naba Kishor assigned the mortgagee's
336 SUPREME COURT REPORTS Ll951]
1951 interest in the mortgaged properties to two of the
S- 1 Bagarias, respondents I and 2 in appeal No. 95, and
Sree ree swar . h h d
0 pal Ji"' mt e same year t e three respon en ts (1 to 3) also
~hakur acquired the lessee's interest in the Cotton Street
v. hoµses. The land acquisition proceedings, which have
Pratapmal given rise to these appeals, were started about the year
Bagaria and 1934 in respect of the premises bearing Nos. 140 a. nd Others. 141, Cotton Street, as well as two adjoining premises
Fad Ali J. 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 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 com
pensation 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 de butter properties of the deity, and the Baga
rias had acquired no interest therein either by the as
signment of the usufructuary m11rtgage 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. l,58,000 to the respondents
Nos. 1, 2 and 3 as compensation for their rights as
permanent tenants of the premises in question. Sub
sequently, 3 separate petitions of reference were filed
S.C.R. SUPREME COURT REPORTS 337
by the 3 claimants against. the Collector's award and 1951
the refere~ce made b.y the ~Hector in pursuance there- Sree Sree Jawar
of was registered as apportionment case No. 95 of 1935 Gopal Jieu
in the Court of the Calcutta Improvement Tribunal. Thakur
Meanwhile, Deosaran Singh and Ram Lakshman Singh, v.
who had put in claims as shebaits, retired from the Pmtapmal
contest, and the President of the Tribunal appointed Bagaria and
one Narendra Nath Rudra as the next friend of the Others.
deity to represent and protect its interests. On the Faz! Ali J.
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 usufrnctuary 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 how-
ever 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 oy 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 pnrties and
ultimately both these appeals were dismissed, and the
High Court upheld the decision of the Tribunal. Sub
sequently, 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 ·
"
1951 (2) whether the mortgages on the basis of which
S S I the Bagaria. s had laid their claim to compensation had
ree ree 8'War b t' fi d Gopal Jieu een sa 1s e .
Thakur The first question arises in Appeal No. 95, and the
v. second question arises in Appeal No. 96. Pratapmal
Bagaria and So far as the question of legal necessity is concerned,
Others. there are concurrent findings of the Tribunal and the
High Court against the appellant in appeal No. 95,
Fazl AU J. 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 ques
tion of fact but one of mixed fact and law, especially
as the decision of the High Court turned upon the con
struction 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 Jong
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 circum
stances 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 circum
stances of the case assumes greater importance and can
not be lightly set aside. [See Banga Chandra Dhar Bis
was v. ]agat KisoreChowdhuri(')j. 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 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
(I) 4S I.A, 249.
S.C.R. SUPREME COURT REPORTS 339
had been supplementing the income of the residue 1951
from her own properties for meeting the expenses of per- 8 s-z
forming certain essential services to the deity, such as r;;a:,,,_""J::,a~
jatra, mahotsob, etc. We also find from the arpannama Thakur
that the value of the property which is the subject v.
matter of the mokrari kabuliyat dated the 30th Pratapmal
September, 1869 (exhibit L) was Rs. 2,000 in 1848, Ba:~:~=.~nd
that it was not in the khas possession of Muni Bibi but
had been let out to a tenant and that its net income Fazl Ali J.
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 expeqses 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 con-
structing 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 refer.ence 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
1951 house in 1848 and what were the commitments of Muni
-- Bibi at that time, but, even apart from these facts, it
8''/;:::U,"/=' is difficult to believe that a devout person like her, who
Thakur was not only a shebait but also the widow of the
v. founder of the deity and who had shown such keen
Pratapmai interest for the upkeep of the worship of the deity,
Bauaria and should have entered into the transaction in question
Others. unless she considered it absolutely necessary to do so.
Fazl Ali J. 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 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 of the grantor.
[See Bava Magniram Sitaram v. Kasturbhai Mani
bhai(')]. 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 re
cognized 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 Gopal
das, on the 31st August, 1878. The properties in
question were subsequently mortgaged by Kali Charan
Dutt and Gopaldas, but neither of these persons nor
\11 '9 I.A. 6f,
S.C.R. SUPREME COURT REPORTS 341
the mortgagees ever came forward to question the per- HJ51
manent nature of the tenancy. . . . Bree Sree lsu:ar
The counsel for the appellant relied upon exh1b1t VI, Gopat Jieu
which is a copy of the judgment of the High Court in Thakur
a suit instituted by Nabakishore Dutt in 1925 against v.
the Administrator-General of Bengal for the rent of the Pratapmat
I f h. · d h Bagari.a and house in question. t appears rom t IS·JU gment t at Others.
the tenancy was admitted by the defendant and it was
also admitted by him that rent was due, but he claimed Fazl Ali J.
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 accord-
ing to him could not be converted into a suit for
deelaration 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 unquestion-
ed for :A.early 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 J iban
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,
" s'tands 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 SUPREME COURT REPORTS (1951]
1951 noteworthy that the actual dedication of this property
BruSreeiswar took place on the .15th January, 1872, more !han 2
Gopal Jieu years after the kabuhyat. On that date, a registered
Thakur deed of gift was executed by Jiban Kumari in favour
v. of Srimathi Gourimoni Debi and it was recited therein
Pratapmal that the income of the house was being dedicated by
Bagaria and the former to the sheba of the deity. There was also OthttB.
a further clause in that deed to the following effect : -
:l'azZ Ali J. ••In accordance with the terms of the solenama the
expenses of the lswar 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 KU.mari, 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
S.C.R. SUPREME COURT REPORTS 343
apply to this house, and the presumption as to 1951
necessity which is raised by the long lapse of time, -
ld ' h 1 Th' t' • 'd bl Bree Sree ls1mr wou anse ere a so. is presump 1on IS consI era y Gopal Ji.,,
strengthened here as well as in the case of the lease Thakur
granted by Muni Bibi, by the fact that the grantor of
the lease was so devoted to the object of the endow- Pratapmal
ment that it does not seem likely that she would have Bagaria and
1 • Others. granted a permanent lease un ess she was Impelled to do
so by absolute necessity. It seems to us therefore that p,,zz Ali •1.
the view taken by the High Court is substantially
correct and the respondents Nos. I 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.
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. ·