Francis W. Maclean, K.C.I.E., C.J.
1. This is an appeal by the defendants against a decree of the Subordinate Judge of Manbhum in favour of the plaintiffs dated the 29th June 1905. The subject-matter of this litigation is a mauza named Grarfalbari in the defendants' possession. They derive their title from a mukarari lease granted to their predecessor in February 1860 by Pranananda Mohunt Goswami, the grandfather of the plaintiff No. 1, under which the whole mauza with the exception of 5 bighas was in consideration of a bonus of Rs. 62 leased to a lady named Ananga Mohini at an annual rental of Rs. 31. The five bighas excepted were subsequently leased to the defendants in November 1896 on payment of a bonus of Rs. 700 for an annual rent of Rs. 50. The latter lease was executed by Prananand's widow and his three sons, one of whom Raghobanand is the father of the plaintiff No. 1. The second plaintiff, Burn & Co., have acquired a lease of the mauza from the plaintiff No 1.
2. The plaintiffs' case is that mauza Grarfalbari is debutter property belonging to the idols Raghunath Jiu and Durga, of whom Prananand and Raghobanand and plaintiff No.' 1 were successively shebaits. Neither Prananand nor Raghobanand had therefore any right to grant a permanent lease of it, and the plaintiffs accordingly sue to recover Grarfalbari as the property of the idols.
3. The defence so far as it is necessary to consider it on this appeal is that mauza Grarfalbari is not debutter property, and that the suit is barred by limitation except as regards the 5 bighas leased in 1896. The Subordinate Judge finding these issues in the plaintiffs' favour has decreed the suit and the defendants have appealed.
4. To establish their case of debutter property the plaintiffs rely on a sanad bearing date 11th Pous 1194 (corresponding to December 1787) and addressed to Bichitrananda Mohunt Groswami, the ancestor of Prananand. It was admitted by the Subordinate Judge without proof under the provisions of section. 90 of the Evidence Act, but an objection has been for the first time taken in this Court that the document was not produced from proper custody. The document was produced in Court by the Manager of Burn & Co., the second plaintiff, who obtained it from Glokulanand. The latter had been appointed by the District Judge, manager of the property of his brother Kaghoba-nand, who had been declared insane, and the document would therefore naturally come into Grokulanand's possession. It is objected by the learned Counsel for the appellants that Glokulanand ought to have restored the document, when he was removed from the management, but his failure to do so does not make the custody improper within the meaning of the Evidence Act, having regard to the explanation to Section 90, where it is provided that 'no custody is improper, if it is proved to have had a legitimate origin.'
5. The sanad runs in the following terms: 'To the remembered and abode of all blessings Sree Bichitrananda Mohunt Goswami of good character. This deed of patta of debutter property is executed to the following effect: Being in sound health and easy mind I do grant to you by way of lakhraj debutter, the entire mouza Grarfalbari in pergunnah Pandra together with all bhils, jhitts, waste and dang a lands, jungles and culturable lands and whatever exists thereon. By bestowing your blessings on us you do enjoy and possess the same with great felicity. If I or any of my heirs ever dispossess you, the dispossession shall be ineffectual. Dated the 11th Pous 1194.' There is no signature on the document, but it bears the impress of a seal with Persian characters.
6. The appearance of the document is to our minds not in keeping with its professed antiquity. The ink is unfaded, and the paper unsoiled, showing no trace of damp or ravage by insects or of the natural decay that one would expect to find in a document nearly 120 years old. These circumstances arouse in us the gravest suspicion as to the genuineness of the sanad.
7. But assuming that the sanad is as old as it professes to be, and is genuine, the next question we have to determine, is whether the debutter character of the grant has been established. Debutter property is property dedicated to a god or gods. In the sanad there is nothing to show that there was such a dedication, except the use of the word debutter. The grant is made to Bichitra Mohunt Goswami apparently for his personal use. 'By bestowing your blessings on us you do enjoy and possess the same with great felicity.' There is not a word here that the income is to be applied to the service of any god, or in any other way than the personal enjoyment of the grantee. It is true that the latter is styled Mohunt Groswami, which would prima facie indicate that he is a shebuit, but the documents produced in this case from the records of a litigation that took place in 1883 show that this is an appellation borne by other members of the family, and the oral evidence also disclosed that it is not uncommon in the neighbourhood. Had there been any intention to dedicate the property to any particular idol, we should at least have expected, if the dedication was not made expressly to it, that Bichitranand would have been described as the Mohunt or shebait of the idol to be benefitted. If we had to base our finding on the terms of this document alone, we should not be satisfied that mauza Grarfalbari had been dedicated to any idol, or that the word 'debutter' signified anything more than that the grantee as a pious Brahman was to hold the land rent free. The .grantor may very naturally have contemplated that as a matter of fact the profits of the property after satisfying the personal wants of the grantee would be devoted to the service of the God whom he worshipped and on whom he attended. Such an exception may explain the use of the word 'debutter,' but does not suffice to constitute a valid dedication to that God. As has been remarked in a similar case by Mr. Justice Mukerjee, whose opinion on such a subject is entitled to great weight, the use of the word 'debutter' is obviously not conclusive, because whether the property be absolutely dedicated to a Thakur or be secular, subject to a religious charge, it would in popular language be fittingly described as 'debutter.' Ram Kanai Ghosh v. Raja Sri Sri Sari Narayan Singh Deo Bahadur (1905) 2 C.L.J. 546, 552.
8. But perhaps the strongest piece of evidence on the plaintiffs' side is to be found in the wording of the patta of February 1860 granted by Prananand. The opening clause of that deed recites that 'llauza Garfalbari within the limits of Pandra is long standing ancestral lalraj debutter property for the services of the deity.' (The word 'endowed' in the paper book is not in the original.) Further on the passage, which excepts 5 bighas from the operation of the lease, describes them 'as set apart for the place of repose for the deity.' Here again, however, there is no mention of the names of the idols such as we should have expected, if the property had been dedicated to any particular deity or deities as is alleged in the plaint. The account boots, to which the Sub-Judge refers as showing that the income was spent on the idols, are of very recent date, and do not carry us further back than four or five years before the institution of the suit. The reference to the place of repose does not necessarily mean more than a temporary shelter for the idol when carried forth on ceremonial occasions from its permanent shrine. Such a shelter would be more or less sacred, but does not show that the mavza in which it is situated is dedicated to the service of that God.
9. The defendants, on the other hand, point to the plaint, written statement and a deed of compromise filed in a suit instituted in 1883 to show that this mcuza was never treated as debutter property in the true sense of the term. The plaintiff in that suit was Balanand, a grandson of Bichitranand, and the principal defendant was Pranenand, the Mohunt of the idol Raghunath Thakur. It was alleged that Prananand had neglected the worship of the idol, and the plaintiff had thereby been disgraced before God and man and had suffered spiritual degradation. The plaintiff therefore prayed that he might be awarded possession of the idols for six months in the year and also possession of a moiety of the debutter properties. The debutter properties were specified and consisted of two annas share of two mauzas, Achkada and Backetin. But no mention is made of Garfalbari, which, if the present plaintiffs' case be true, was part of the debutter property.
10. In the oral evidence adduced an attempt is made to explain this omission by saying that mauza Grarfalbari was charged with be much expenditure for the Durga puja, that it was purposely omitted as being too burdensome. The Subordinate Judge has accepted this explanation as adequate. But there is no indication of the manner in which Grarfalbari came to be charged with this expenditure. The charge was not imposed by the sanad to which the plaintiffs look as the deed of endowment. Moreover, if the explanation suggested had been correct, Prananand is not likely to have failed to detect the plaintiff's attempt to escape liability and would himself have mentioned Garfalbari as one of the debutter properties, and all the more so as in paragraph 7 of his written statement filed in that suit, he specifies several debutter properties other than the two mauzas named by Balanand, and alleges that these other properties had been omitted 'with the fraudulent motive of raising disputes in future with respect thereto.' If Garfalbari had been one of the debutter properties and a burdensome property, Prananand could hardly have failed to specify it.
11. Upon the question of whether or not the property was debutter in the true sense of the term, it is significant that in the lease of the 2nd November 1896, which dealt with the remaining five bighas, the lessors, the three sons and heirs of Prananand. treated the property as their own and not as debutter.
12. On the whole, we feel a difficulty in saying that the plaintiffs have established that Grarfalbari is debutter property, though the question becomes unimportant in the view we take upon the question of limitation, except as regards the five bighas.
13. In the view that mauza Garfalbari is not debutter property, the alienation made by Prananand in 1860 and by Raghabanand in 1896 (subject to the question of the latter being a lunatic) are valid, and no question of limitation arises.
14. But, even if the mauza were debutter property, we think that the suit is barred by limitation as regards the portion demised by Prananand in 1860. A permanent mokarari lease is an alienation of the proprietary interest pro tanto and if the property was debutter, the alienation by Prananand was beyond his legal competence and the possession of Ananga Mohini Debi the lessee became adverse to the lessor as from the date of the lease. The case would then be governed prima facie by Article 144 of the Limitation Act, and the suit be barred by reason of its being brought more than 12 years after the alienation. This was the view taken by the Judicial Committee of the Privy Council in Gncnwsambanda Pandora Sannadhi v. Velu Pandaram (1899) I.L.R. 23 Mad. 271. It is however contended on behalf of the plaintiffs respondents that the article applicable is No. 134 read with Section 10 of the Limitation Act. That article refers to a suit 'to recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee for a valuable consideration,' and imposes 12 years from the date of the purchase as the period within which such a suit must be brought. Section 10 of the Act exempts from the operation of the Act suits 'against a person in whom property has become vested in trust for any specific purpose or against his legal representatives or assigns (not being assigns for valuable consideration) for the purpose of following in his or their hands such property.' It is urged that in the present case Ananga Mohini became a mala fide purchaser, as she took the lease with notice that the property was debutier, and that the word 'purchased' in Article 184 refers only to a bond fide purchaser. Here there was nothing to affect the lessee with notice save what appeared on the face of the lease itself. It was further urged that she did not profess to acquire 'an absolute title in the property, and was therefore not a purchaser within the meaning of the article just quoted. It is also argued that as she had notice that she was purchasing what was debutter, she was not an assign for valuable consideration within the meaning of Section 10, but must be held to have acquired only the interest that the trustee himself held in the property. In support of these propositions reliance is placed on the decision of the Privy Council in Radlia Nath Boss v. Gisborne & Co. (1871) 15 W. R.P.C. 24 : L.R. 27 I.A. 69. 14 M.I.A. 1 and also on a decision of this Court in Ram Churn Ternary v. Protap Chandra Dutt Jha (1886) 2 C.L.J. 448. In the case before the Privy Council the plaintiff sued to redeem a usufructuary mortgagee, and one of the defences set up was that the suit was barred by limitation under the provisions of the law .then in force (Act XIV of 1859), the 5th section of which dealt with 'suits for the recovery from the 'purchaser or any person claiming under him of any property purchased bond fide and for valuable consideration from a trustee or mortgagee.' The defendants set up that they were purchasers within the meaning of that section from a mortgagee. Their Lordships pointed out that the word purchaser in that section meant the purchaser of an absolute title and not the purchaser of the mortgage, that is of the mortgagee's interest, and on a review of the evidence in that case decided that the defendants had only acquired the mortgagee's interest and were therefore not purchasers within the meaning of the words quoted.
15. Now in the present case, taking the property to be debutter, Ananga Mohini obtained a permanent lease of the whole mauza, except the five bighas, which were excepted; it was not a lease merely of any interest Prananand as shebait might have had in the property. This was a purchase pro tanto of the property and the lessee became the purchaser within the meaning of Article 134 of the Limitation Act. No doubt on a somewhat similar state of facts, a Divisional Bench of this Court in Ram Churn Teuary v. Protap Chandra Duit Jha (1886) 2 C.L.J. 448 held that the lease of the debutter property did not constitute the lessee, with notice that it was debutter, a purchaser within the meaning of that article. We do not think this is so; and the facts of that case are, perhaps distinguishable from those now before us.
16. We are of opinion that the fact that Ananga Mohini had notice that the property, which she was acquiring in 1860 was debutter property does not preclude her from being regarded as a purchaser within the meaning of Article 134. Section 10 has always been regarded as having a close connection with that article. In the Act of 1871 the corresponding section exempted from the operation of the Law of Limitation trustees and their representatives. The persons exempted under the present law are trustees and their legal representatives or assigns (not being assigns for valuable consideration). Again Article 134 under the former Act referred to suits for property purchased from the trustee 'in good faith' and for value. The omission of the words 'in good faith' cannot have been otherwise than intentional, and shows that the language 'the assigns for valuable consideration,' includes cases like the present where the purchaser may have known that the property, which she acquired, had been originally conveyed in trust. There is nothing to show that the lease of 1860 was vitiated by fraud, and no attempt was made to argue the case on that ground. As far as we can judge the property was leased for its full value.
17. If the view of the plaintiffs prevail, no effect is given to the words 'not being assigns for valuable consideration' in Section 10 of the Limitation Act. We think the section means that time is to be no bar to an action against the trustee himself, his representatives or assigns, except an assign for valuable consideration, but as regards the latter the period of 12 years from the date of the purchase is to be the period within which the suit must be brought. This view brings Section 10 of the Act and Article 134 in the second schedule into harmony.
18. A similar view to that now expressed by us was taken by a Divisional Bench of this Court in a case to which reference has already been made in an earlier part of this judgment (Ram Kanai Ghosh v. Raja Sri Sri Sari Narapan. Singh Deo Bahadur (1905) 2 C.L.J. 546. There all the authorities Indian and English are collected and were reviewed in an exhaustive judgment of Mr. Justice Mookerjee. In that judgment we concur, and we think it would be a work of supererogation to encumber the present judgment with a further review of those authorities, which appear to us to amply justify our conclusion that, even if mouza Grarpalbari were debutter property, when the lease of 1860 was granted, the suit as regards that part of it, which is covered by that lease, is barred by limitation.
19. Several minor points have been raised. With reference to the lease of November 1896, which affects only some five bighas of the disputed property, it is said that, at this date, Raghabanand, the eldest son, was insane. He was apparently insane in 1892 and again in 1897, but the oral evidence as to his being insane in 1896, at the date of the lease, is far from convincing. But, even if he were then insane, and the property were not debutter, the lease of 1896 was a good lease of of the property, and if it were debutter and Raghobanand were not then insane, the lease was not an improvident one and would he valid. The letter view seems to us that he was not insane in 1896, and that the lease was a good and valid lease of the five bighas.
20. It is then contended for the defence that, as Prananand, the lessor of the lease of 1860, died in 1891, if the property were debutter, his son Raghobanand was the next shebait; that the suit was not brought until the 25th January 1904, more than 12 years after the death of Prananand; that the defendants from that date were in possession adversely to Raghobanand and his heirs, i.e., for more than 12 years before the institution of the suit, and that the same is consequently barred under Article 144 of the second schedule of the Act. To this it is replied that, at the date of his father's death, Raghobanand was insane, and reliance is placed on Section 7 of the Limitation Act. The evidence of the insanity of Raghobanand at the date in question is far from satisfactory. His widow, though she afterwards contradicted herself, says that he was in a sound state of mind for 2 or 3 months after his father's death : the plaintiff's own evidence shows that Raghobanand set fire, as the eldest son, to the corpse at his father's shrad, and a few days after his father's death he was installed with much ceremony as Shebait. It is scarcely probable that all this would have occurred had he been insane or had been regarded by his relatives as insane. In the view, however, which we take of the other part of the case, it is unnecessary to pursue this point further.
21. Then it is said that, inasmuch as the defendants paid rent up to 1902, there can be no adverse possession as against the plaintiffs, and that, assuming the property to be debutter, the lease of 1860 was void, and the defendants must be treated as tenants from year to year of the property, and reliance is placed on an observation of Lord Selborne in the case of President and Governors of Magdalen Hospital v. Knotts (1879) 4 App. Cas. 324, His Lordship said '* * * *. If any rent had been reserved and received, however small, the legal relation of a tenancy from year to year would have been created, and the Statute of Limitations could not have run.'
22. This, however, was not necessary for the decision of the case, and is opposed to the view of the Court in 'the case of Attorney-General v. Davey (1859) 4 Deg. and J. 136 where the point was expressly decided. 'We do not think the plaintiffs car How hot and cold: if they rely on the payment of rent they cannot fairly attribute it to a tenancy, which was never in the contemplation of the contracting parties,. but must attribute it to the lease, which was the contract between the parties. In the case of President, &c;, of Magdalen College, Oxford v. The Attorney-General (1857) 6 H.L.C. 189 the lease reserved a rent which had been regularly paid up to a few years before the institution of the suit.
23. Then it is said the lease of 1860 is not a permanent one, on the ground that the rent was only to be paid to the lessor, 'to me' and not to his successors in interest. Looking at the language in other parts of the lease, we do not think the document can fairly bear this interpretation.
24. Lastly it was contended that the lease of 1860 did not include the minerals. This question was not suggested until a year or more after the suit had been launched (see petition of the 8th February 1905) and seems to be inconsistent with the original claim, as it proceeds upon the view of the validity and continuance of the lease of 1860. It throws a light, however, on the real motive of this litigation, viz., that valuable brick clay having been discovered under the disputed land and the plaintiffs Burn & Co., being directly interested in this trade, and enjoying almost a monopoly of it in these parts, they do not want their business interfered with by the defendants. If we can properly go into this, we think the lease, being a permanent one, and including 'all rights of various kinds' with the exception only of the homestead, included the minerals. We, however, do not think the amendment should have been allowed, having regard to the proviso to Section 53 of the Code of Civil Procedure.
25. The appeal, therefore, must be allowed with costs, and the suit dismissed with costs.
26. I am of the same opinion.