1. This appeal must be allowed. The learned Judge has misunderstood the case. The authority of the revenue Court is not impugned and it was not necessary for the learned Judge to intervene in order to uphold it. Nor is the term 'trespasser' a definition of a status or an absence of status. A person who derives title from another, granted for the other's life, finds that on that person's death his title has come to an end. He has nothing left. He is a mere trespasser. This is not straining language. It is merely defining law. It does not mean that he is a trespasser in the sense in which the Penal Code treats a trespasser.
2. I have not succeeded in discovering on what ground the learned Judge really thinks that this suit could have been entertained by a revenue Court. As I have had occasion to say scores of times, in order to decide in what Court a suit should be brought the first thing to examine is the plaint. Of course, if the plaint is mala fide and a mere cloak to hide the real object of the suit different considerations may arise; but in the ordinary way, assuming a plaint to be an honest, even though mistaken, attempt to state a claim it must be judged on its merits. If it breaks down on the merits the suit fails; but if it is established on the merits the suit is brought properly is the Court to which the plaint a priori applies.
3. This suit alleges that a lease granted by a Hindu widow for fifteen years became void on her death and claimed possession, treating the defendant who was the lessee as a trespasser. It also alleged fraud and I am bound to say that the allegations, if they bear any resemblance to the truth are remarkable like the sort of fraud which can easily be perpetrated upon a Hindu widow The lease was granted for 15 years for about half the amount of the value of the property. The significant part of it is that it was granted to a brother-in-law of a person to whom a sale had already been made and which had been set aside as invalid.
4. The learned Judge gives an ingenious reason for holding that there was no fraud. He says that a person does not defraud himself if he grants a lease to himself at a rent lower than the real value. This is true. The misfortune in the judgment is that the learned Judge proceeds to contradict this assumption, and after taking the hypothesis that the widow only granted the lease during her own life and that therefore she was the only loser, he goes on to hold that the defendant is not a trespasser and is therefore lawfully a tenant after her death, and that the suit ought to be brought in the revenue Court. The learned Judge might have seen that the defendant cannot have it both ways.
5. If he has no interest in the amount of the rent after her death he must be a trespasser. If on the other hand, he is a tenant, then it is quite clear that the lease was granted beyond the widow's life at an inadequate rent. In my opinion there is the strongest ground for holding that the whole thing was done in order to injure, if possible, the interest of the reversioners, and that the strongest proof of this contention is the subsequent conduct of the parties who have tried to enforce the arrangement since the widow's death. I have nothing to do in this matter. But if I had, on a question of fact, I should agree with the first Court that this was a false claim. The position is clearly set out in Lord Davey's opinion delivered on behalf of the Privy Council reported as Bijoy Gopal Mukerji v. Krishna Mahishi Debi (1907) 34 Cal 329 where he begins:
The alienation is not therefore absolutely void, but... prima facie voidable at the election of the reversionary heir. He may think fit to affirm it, or he may at his pleasure treat it as a nulity without the intervention of any Court, and he shows his election to do the latter by commencing an action to recover possession of the property.
6. The learned Judge has not explained why he did not decide the case upon the merits under Section 197, Tenancy Act, if he was really of opinion that there was no fraud. He had all the materials before him. On all these grounds I allow the appeal and remand the case for disposal by the lower appellate Court on the merits according to law. The respondent must pay the costs of this appeal on the higher scale. Costs in the lower Court will abide the result.