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Sri Sri Sri Gajapati Radhikapatta Mahadevi Garu Vs. Sri Gajapati Radhamani Mahadevi Garu and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Judge
Reported in(1883)ILR7Mad96
AppellantSri Sri Sri Gajapati Radhikapatta Mahadevi Garu
RespondentSri Gajapati Radhamani Mahadevi Garu and ors.
Excerpt:
lis pendens - perpetual lease--cultivation of waste land--premium--bent recovery act, section 11, clause 4. - - 3. upon a representation made by the appellant that the first respondent and the other claimants were attempting to grant permanent leases of waste lands in the villages provisionally made over to them under the decree of the high court, the district court by its order, dated the 2nd february 1868, restrained them from so doing and declared that such permanent leases, if any, would be regarded as good only for one year......agree in the opinion that radhamani acted bond fide in granting the perpetual lease, or that the lease granted was for the permanent benefit of the estate.8. nor do we think that, as a decree-holder provisionally in possession, she was entitled to grant such lease otherwise than subject to the result of the pending litigation. she obtained possession under the processual law, pending final decree and subject to its result; and the power of dealing with the property derived from such possession must, therefore, be determined, with reference to the code of civil procedure and to the general doctrine of lis pendens. her relation to the appellant was that of a rival claimant, and not that of a managing member to a coparcener, nor of a landholder to his successor within the meaning of.....
Judgment:

1. The appellant, Radhika Patta Mahadevi, and the first respondent, Radhamani Patta Mahadevi, are the widows of a Hindu family, which had originally consisted of two brothers, Gopinadha and Krishna. Of these, Krishna had died first, and, upon the death of the surviving brother, Gopinadha, his widow, the appellant, took exclusive possession of the taluk of Tekkali which he had held, and of which the land now in litigation forms a part. But her right to exclusive possession was questioned by the two widows of Krishna, and by two illegitimate sons, and there was litigation in the family.

2. By the decree passed by the High Court on appeal, a fifth share was awarded to each of the five claimants, of whom the first respondent, Krishna's junior widow, was one. From this decree an appeal was preferred to the Privy Council {see I.. L.R. 1 Mad. 290 who raised the appellant's share from one-fifth to one-fourth. Before the appeal to the Privy Council was decided, the first respondent, Radhamani, was placed in possession of a fifth share in execution of the decree passed by the High Court, security being taken from her every year pending the appeal for refunding, if necessary, the mesne profits which she might receive from her share of the estate.

3. Upon a representation made by the appellant that the first respondent and the other claimants were attempting to grant permanent leases of waste lands in the villages provisionally made over to them under the decree of the High Court, the District Court by its order, dated the 2nd February 1868, restrained them from so doing and declared that such permanent leases, if any, would be regarded as good only for one year.

4. On the 22nd April 1868, however, Radhamani received from the second and third respondents a nazar (present) of Rs. 315, and granted to them a perpetual lease of about 12 acres of land in Vundrakudiya, fixing the rent due thereon to the landlord at one rupee per acre. The second and third respondents entered into possession, brought the waste land under cultivation, and improved it at their own expense.

5. After the appeal was decided by the Privy Council, and, in execution of the final decree, the village of Vundrakudiya, was made over to the appellant, Radhika. Thereupon she brought the suit, from which this second appeal arises, to set aside the perpetual lease of the 22nd April 1868. She alleged that the lease was invalid as against her, and that, as a decree-holder provisionally in possession, the respondent, Radhamani, was not entitled to grant such lease. On the other hand, the. respondents contended that Radha-mani's powers over the property were the same as those of the managing member of a Hindu family and of an ordinary landholder under Clause 4, Section 11, Act VIII of 1865.

6. The District Munsif set aside the perpetual lease and decreed the claim, subject to a compensation to be made to the second and third respondents for the improvements made by them. On appeal, however, the District Judge held that the respondent had acted bond fide, and that Radhamani was entitled to grant the perpetual lease; and upon these grounds he dismissed the suit with costs. The questions for determination are whether, upon the facts found, the act of Radhamani was bond fide and for the benefit of the estate, and whether, as a decree-holder provisionally in possession, she was at liberty to grant the perpetual lease so as to bind the party whose claim finally prevailed on appeal.

7. It has been found by the District Court that Radhamani received for her own use the nazar of Rs. 315 for granting the perpetual lease in dispute. Though the payment is described to be a nazar, it must be taken in the circumstances of the case to be a price paid for granting the perpetual lease. But for the price thus paid for her exclusive benefit, the rent reserved would certainly have been more than one rupee per acre, and we are, therefore, unable to agree in the opinion that Radhamani acted bond fide in granting the perpetual lease, or that the lease granted was for the permanent benefit of the estate.

8. Nor do we think that, as a decree-holder provisionally in possession, she was entitled to grant such lease otherwise than subject to the result of the pending litigation. She obtained possession under the processual law, pending final decree and subject to its result; and the power of dealing with the property derived from such possession must, therefore, be determined, with reference to the Code of Civil Procedure and to the general doctrine of lis pendens. Her relation to the appellant was that of a rival claimant, and not that of a managing member to a coparcener, nor of a landholder to his successor within the meaning of Clause 4, Section 11, Act VII of 1865. In the absence, therefore, of a distinct provision in the Code of Civil Procedure, Radhamani's power over the property during her interim enjoyment cannot be larger than that of a party in possession pending decision in the Court of First Instance. We think that it must be taken to be subject to the result of the pending litigation except as to yearly leases and such other acts as are either the necessary or the ordinary and reasonable incidents of an interim beneficial enjoyment, and the grant of a permanent lease is not such an act. On these grounds we are of opinion that the perpetual lease must be set aside; but before we dispose of this second appeal, we shall ask. the Judge to try the fourth issue, whether the second and third respondents are entitled to any, and what amount of compensation, and to return a finding, upon the evidence already recorded, within one month from the date of the receipt of this order.


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