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(Duming Rosario) Saldanha and ors. Vs. Roman Catholic Church - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1930Mad434
Appellant(Duming Rosario) Saldanha and ors.
RespondentRoman Catholic Church
Cases Referred and Madhava Rao Warnan v. Raghunath Venkatesh A.I.R.
Excerpt:
.....lower appellate court's view that the lease in question is not mulgeni or permanent lease is erroneous. d, the learned advocate for the appellant argued, that there are certain circumstances which would prove that the church authorities (the plaintiffs) clearly intended by the document to grant a permanent lease. 205, are two recent decisions of the privy council which make this position perfectly clear. as the appellants have substantially failed in this second appeal, they will pay the costs of the respondent in this second appeal......descents.13. they also laid down at p. 673 that it was for the tenants to show that under the document of lease a perpetual rights was granted of them. they remarked:as the appellant is unable to point to any words in the patta importing perpetuity, it appears to their lordships upon a consideration of the object of the pitta and its language and provisions, as well as the surrounding circumstances, that the intention to grant a perpetual lease does not sufficiently appear.14. a decision of the irish court also to the same effect, reported in wood v. davies [1881] 6 i.r. 50, was also read to me. there the question that arose for decision was this:after the death of the lessee, was the lesser bound to give notice to quit before he would be entitled to the possession of the.....
Judgment:

Anantakrishna Ayyar, J.

1. In this case the plaintiff (the Roman Catholic Church, Mermajal) represented by, John Francis Cutinha instituted O.S. No. 404 of 1924 on the file of the District Munsifs Court, Mangalore to eject the defendants, the Saldhanas, on the ground that the suit properties belong to the Church and were leased to the father of defendant 1 and the grandfather of the other defendants in 1858 under Ex. D. The lessee died in about 1876 but defendant 1 who is the surviving son and the other defendants who are the grandsons of the original lessee, continued in possession of the properties paying the rent stipulated in Ex. D. On 2nd October 1923 the plaintiff gave notice of ejectment and the suit was instituted on 13th July 1914. The main pleas raised by the defendants are: (1) that the defendants are mulgeni tenants under Ex. D and are not liable to be ejected and (2) that they have acquired mulgeni rights by adverse possession. There were two subsidiary questions of which one related to the amount of rent to which the plaintiff would be entitled to in case he is allowed to eject the defendants, and the other related to the exact value of the improvements to which the defendants may be entitled to if they have to surrender possession of the properties.

2. The rights of the parties, turn on the construction to be placed on Ex. D. The Court of first instance construed it in favour of the defendants and dismissed the suit for possession. The lower appellate Court, however, construed the document in the way sought for by the plaintiff and has given a decree in ejectment. The second appeal is accordingly preferred by defendants 2 to 6, defendant 1 having died and I have to construe this document. The document is set out in full in para. 7 of the lower appellate Court's judgment and is as follows:

Genichit (lease deed) executed by Juje Saldhana in favour of the Mermajal Church dated 22nd August 1858.

Particulars of the rent of Rs. 96 fixed for Kori bettu land bail and bettu comprising six Mudies and Bagayat starting with Rs. 80 payable in January 1859 and rising by increments so as to reach Rs. 96 in 1869, besides the yearly perquisites. You shall not demand additional rent over and above Rs. 96. This term shall be void in case any portion of the rent should fall in arrears. In case a new tenant should be introduced owing to my default in paying rent regularly or in case I surrender the holding to the Church, I shall have no claim to improvements. I have no right to sell or cut down the tress in the land except for domestic purposes without the consent of the 'tan' (meaning the Church Assembly). I have no right to sell away my improvements to strangers but am bound to make them over to the Church for a fair price. I alone shall have a right to make improvements in the land and you (the lessor) shall have no right to do so.

3. The main arguments in favour of the defendant are set out in para. 12 of the original Court's judgment and the arguments in favour of the plaintiff are contained in para. 10 of the, lower appellate Court's judgment. Thus these paragraphs contain all the arguments advanced by the respective parties. On behalf of the appellants, their learned advocate Mr. Adiga laid main stress on the following circumstances so far as I was able to follow him. He drew my attention to the following sentences in the document:

You shall not demand additional rent over and above Rs. 96. I have no right to sell or cut down trees in the land except for domestic purposes without the consent of the 'ten' (meaning the Church Assembly)-I have no right to sell away my improvements to strangers but am bound to make them over to the church for a fair price. I alone shall have right to make improvements in the land and you (the lessor) shall have no right to do so.

4. Some of these provisions no doubt go to support the contention raised by the learned advocate for the appellant; but I have to construe the document as a whole. In construing a document which is claimed to evidence the grant of mulgeni lease, one would expect the initial recital therein, as one finds generally in such cases, that the document is styled a 'mulgeni' document. In the case before me, there is the further fact that the landlord, the Church, has not executed any document in favour of the tenants. Ex. D is by the lessee to the Church. This is rather important because it is not pretended in this case that the defendants or their ancestor had any right to these properties prior to the date of the lease Ex. D. In fact it appears from, Ex. G that on 17th. May 1841 these properties were purchased by the Church by payment of cash to its former owner Abbakku, with whom the defendants have nothing to do. Now the circumstance that the document is executed only by the lessee in favour of the lessor and that no document has been executed by the lessor, is, I think an important circumstance which I have to take into account in considering whether what was granted by the lessor is permanent mulgeni right. Again there is the further circumstance that when such permanent mulgeni rights are conferred one would naturally find the words:

you (the lessor) shall enjoy the properties 'from generation to generation,' 'from son to grandson

5. or other words to that effect: see mulgeni documents referred to in Vidyapurana Thirthaswami v. Uggannu [1910] 34 Mad. 231, and Parameshri v. Shanlaga [1903] 26 Mad. 157. In this particular case these words 'from generation to generation' or 'you and your descendants' are absent and I think that this is also an important circumstance to be taken into consideration. I have got yet another circumstance that this lease is granted by the Church, and it has been laid down by the highest judicial authority that so far as Devasthanams, churches and temples are concerned it is not ordinarily open to the trustee to grant perpetual lease in respect of the trust properties, since that would prevent the trust from having the benefit of increased rents in future. The decision in Satya Sri Ghosal v. Kartik Chandra Dass [1912] 15 C.L.J. 227, is one of the earliest of such cases. The decision in Devasikamony Pandara Sannadhi v. Palaniappa Chettiar [1911] 34 Mad. 535, to the same effect was confirmed by the Privy Council in Palaniappa Chetty v. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33. See also the decision of Sir John Wallis, C J. and Krishnan, J., reported in Chinnammal v. Rathnasabapathy Chettiar [1920] 12 M.L.W. 191.

6. It is unnecessary for me to multiply decisions in support of this proposition as it is clear that trustees of religious institutions could not ordinarily grant perpetual leases in respect of trust properties. When construing documents granted by trustees, I think it is legitimate to bear in mind that the trustees should not be presumed to be doing something beyond their powers such as granting permanent leases of trust properties.

7. Now bearing these principles, when I proceed to construe Ex. D, I am not able to find anything definite in it which would enable the defendants, the tenants, to contend that perpetual rights have been conferred on them. The learned advocate for the appellant is no doubt correct in contending that the scheme of the lease is that the initial rent should be Rs. 80, and the rent was to be gradually increased to Rs. 96 which should be the highest rent agreed between the parties as payable for the year 1869. After that comes the provision 'you shall not demand additional rent over and above Rs. 96.' The question then is whether the two sentences occurring in EX. D give the tenants the perpetual or mulgeni rights in respect of these properties. My attention has been drawn to certain Privy Council cases which are useful in construing such documents. The case in Lakhraj Roy v. Kunhya Singh [1877] 3 Cal. 210, is a case where the Privy Council had to consider what exactly would be the period for which an indefinite lease would continue. At p. 212, their Lordships observe:

If a grant be made to a man for an indefinite period, it enures, generally speaking, for his lifetime, and passes no interest to his heirs unless there are some words showing an intention to grant a hereditary interest.

8. In the case before me I am unable to say that there are words showing an intention to grant hereditary interest; in fact no such words occur in the document. The same principle was re-affirmed by the Privy Council in the case reported in Tulshi Pershad Singh v. Ramnarain Singh [1889] 12 Cal. 117.

9. This Court had to consider a similar question in second appeal of 1920 decided by Oldfield and Ramesam, JJ. They had to consider in that case a document styled chalgeni lease, providing that the lessees were entitled to continue in possession so long as they paid their rent, and they observed as follows:

The lease under consideration was granted before the Transfer of Property Act. We, therefore, deal with it in the light of authority.

10. After quoting Tulshi Pershad Singh v. Ram Narain Singh [1889] 12 Cal. 117; Agin Bindh Opadya v. Mohan Bikram Shah [1903] 30 Cal. 20; Narasingh Dayal Sahu v. Ram Narain Singh [1903] 30 Cal. 883 and Rajaram v. Narasingh [1892] 15 Mad. 199, the learned. Judges proceeded to observe as follows:

These cases show that in the absence of special provision or ground for inference from surrounding circumstances a lease must be construed as for the life of the lessee.

11. Another decision of the Privy Council reported in Bilasamony Dasi v. Raja Sheo Pershad Singh [1882] 8 Cal. 664, lays down the same principle. The Privy Council there decided that the word 'mokarari' did not necessarily import perpetuity, although it may do so:

Used in connexion with the ijara in a patta this word is not inconsistent with such interest being only for life.

12. In answer to the contention that the word mokarari implies something permanent this was what their Lordships observed at p. 671:

This committee on appeal from a decision of the High Court held that these words might mean either permanent during the life of the person to whom the grant was made or permanent as regards the hereditary descents.

13. They also laid down at p. 673 that it was for the tenants to show that under the document of lease a perpetual rights was granted of them. They remarked:

As the appellant is unable to point to any words in the patta importing perpetuity, it appears to their Lordships upon a consideration of the object of the pitta and its language and provisions, as well as the surrounding circumstances, that the intention to grant a perpetual lease does not sufficiently appear.

14. A decision of the Irish Court also to the same effect, reported in Wood v. Davies [1881] 6 I.R. 50, was also read to me. There the question that arose for decision was this:

After the death of the lessee, was the lesser bound to give notice to quit before he would be entitled to the possession of the properties.

15. The Court held that in the absence of express words granting any higher right to the lessee, an indefinite lease would enure only during the lifetime of the lessee, and that on the lessor's death the lease terminated, and that the landlord was not bound to give any notice to quit before he claimed possession of the properties. It should also be remembered that the landlord, in the present case-the Church-is not likely to eject its tenants capriciously as private landlords might do, and a tenant coming into possession under a devasthanam or Church would ordinarily expect to be allowed to continue in possession so long as the proper rent was paid. The fact that the rent to be paid was fixed at Rs. 80 for the first year and at Rs. 96 for the year 1869 does not necessarily imply that there was to be a perpetual lease. The provision 'you shall not demand additional rent over and above Rs. 96' should I think, having regard to the context, be taken to mean that no rent higher than Rs. 96 would be demanded during the currency of the lease; which means that during the lifetime of the lessee he shall not be asked to pay more than Rs. 96 as rent per year. The lower Courts have discussed the bearing of the other clauses in the lease. I am not able to find anything definite in those clauses which would enable me to say that any perpetual lease was granted. Before I part with this portion of the case I should refer to two further clauses which were commented on by the learned advocate for the appellant, I alone shall have the right to make improvements in the land and you (the lessor) shall have no right to do so.' Taken literally and strictly the landlord is not entitled to enter on the premises during the currency of the lease, much less is he entitled to make any improvements during the currency of the lease without the permission of the lessee; so that the fact that during the currency of the lease the lessor shall have no right to effect improvements does not in any way show that the interest created by the lease is a permanent or mulgeni interest.

16. As regards the condition relating to improvements, a decision of the Calcutta High Court in Ram Narain Singh v. Chota Nagpur Banking Association [1916] 43 Cal. 332, by Jenkins, C.J., and two other Judges may be referred to. After remarking that the expression isthemrari mokarari (fixed rent), 'does not per se convey either lexicographically or by way of custom an estate of inheritance, their Lordships proceed to remark that' clauses in a lease which impose a restraint on transfer or cutting down of fruit bearing or income yielding trees by the lessee are not consistent with the theory of a perpetual lease:

Clauses which throw the cost of improvements on the lessee indicate some measure of continuity but not necessarily perpetuity.

17. After having given my best consideration to the various clauses contained in this lease deed Ex. D, I am not satisfied that the lower appellate Court's view that the lease in question is not mulgeni or permanent lease is erroneous. That was the main argument of the learned advocate for the appellant. But even apart from the construction of Ex. D, the learned advocate for the appellant argued, that there are certain circumstances which would prove that the Church authorities (the plaintiffs) clearly intended by the document to grant a permanent lease. He refers to two documents Exs. 4-C and 8-A, which are two receipts granted, one in 1859 and the other in 1923. Turning to Ex. 4-C, all that I am able to find there is this:

Receipt granted on 12th March 1878 to etc., received Rs. 96 (Rupees ninety six) as per genichit and Rs. 1-8-0 (one rupee and annas eight) for road cess in full.

18. From this the learned advocate argues that because there is a reference to genichit it must be taken to mean that the incidents of Ex. D were incorporated in and confirmed by that document. I am not quite clear that one is entitled to go so far. All that is meant, I think, is that the rent paid is with reference to the property included in or referred to in the genichit. If Ex. D itself did not confer permanent rights, I do not see how Ex. 4-C would be useful to confer the same.

19. The other document Ex. 8-A is a very recent one dated 10th June 1923, whereas the suit itself was filed on 13th September 1924. Ex. 8-A is commented on by the lower appellate Court in para. 15 of its judgment. In that exhibit there, is a reference to kayam geni and prima facie this document would lend support to the learned advocate's contention. But the finding of the lower appellate Court as regards this document is that this document was written by a Sacristan of the plaint Church who is the son-in-law of defendant 5. P.W. 1 the administrator of the Church swears that he did not know of this recital in Ex. 8-A, that Judge Carasth who wrote Ex. 8-A was Miran and clerk, and that he is the son-in-law of defendant 5; and as soon as the Vicar came to know of the recital of kayam geni in Ex. 8-A the Vicar dismissed the writer who wrote it. The receipt is dated 10th June 1923 and the suit notice is dated 2nd October 1923 Ex. A, so that this circumstance does not really help the contention of the defendants. On the whole, I am not able to find anything definite which would in any way help mo in construing this document Ex. D as a permanent lease. For the above reasons I have come to the conclusion that the main ground taken by the learned advocate for the appellant fails.

20. If the defendant's predecessor came into possession under Ex. D, and if the defendants had been paying rent regularly after the original lessee Saldhana's death up to and inclusive of the year 1923, they could not possibly acquire the right of permanent tenants by reason of mere lapse of time. It is settled law that a tenant could not, by any amount of declaration or acting on his part, acquire as against the landlord title by adverse possession to the properties covered by the lease: Nainapillai Marakayar v. Ramanathan Chettiar A.I.R. 1924 P. C 65 and Madhava Rao Warnan v. Raghunath Venkatesh A.I.R. 1323 P.C. 205, are two recent decisions of the Privy Council which make this position perfectly clear. Further in this particular case it is not quite clear whether the Church authorities had notice of the setting up by the defendants on some occasions of their right as mulgenidars (perpetual lease-holders.) I, therefore, think that both the lower Court's were right in deciding this point about the acquisition by prescription of the mulgeni right by the defendants against them.

21. The last point raised by the appellant relates to the form of the decree that has to be passed in this case. The decree passed by the lower appellate Court is this:

On payment by the plaintiff to defendants 2 to 6 Rs. 4,278-12-0 an account of improvements, defendants 2 to 6 do surrender to plaintiff possession of the properties in plaint Schs. A and B described in the lower Court's decree, with future mesne profits at the rate of 48 muras of rice and Rs. 100 per annum from the date of plaint (13th July 1924) until delivery of possession or until the expiration of three years from this date whichever event first occurs.

22. It was argued that the defendants' possession could not be said to be that of a trespasser before they were paid the value of improvements, and the value of improvements in this case represents rather a large sum being Rs. 4,278-12-0. No doubt the rent stipulated in Ex. D is only Rs. 96, and the present income from the properties is said to be 48 muras of rice and Rs. 100 per annum. This income presumably represents the result of the improvements effected on the properties by the defendants. Further there is the other circumstance that in this case Ex. D to which both the Church and the losses were parties is not a very clear document, so that if the defendants left the matter to be decided by the Courts it could not, in the particular circumstances of this case be said, be taken to show clear malafides on their part. No doubt the lower appellate Court, and this Court, have construed the documents differently from the way in which the defendants want to construe it, but that is no ground for saying that their conduct was malafide or fraudulent in having retained possession of the properties. In any event the fact that the plaintiff has to pay Rs. 4,278-12-0 before getting possession of the properties would in my opinion in the particular circumstances of this case be a ground for modifying the decree of the lower appellate Court in the way in which I propose to modify the same. The plaintiff would be entitled to mesne profits at the rate mentioned in the lower appellate Court's decree, not from the date of the plaint as mentioned by it, but only from the date on which he deposits that amount in the 1st Court, or otherwise duly tender it to the defendants. Till that is done, the plaintiffs would only be entitled to rent at Rs. 96, a year. I modify the decree of the lower appellate Court in this respect. As the appellants have Substantially failed in this second appeal, they will pay the costs of the respondent in this second appeal. The decree of the lower appellate Court will be confirmed in other respects. As, in ray opinion, no question of past mesne profits arises, the plaintiff would be entitled to Rs. 96 per annum from 13th April 1924 till the date on which the plaintiff deposits the amount into Court or otherwise makes due tender as aforesaid.


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