1. This appeal arises out of a suit for arrears of rent. The suit is brought upon a registered kabuliyat dated the 8th Magh 1305.
2. The Court of First Instance dismissed the suit.
3. The lower Appellate Court has given the plaintiff a decree.
4. The defendant No. 1 appeals to us; and on his behalf three pleas have been taken, namely, first, that the kabuliyat is void and inoperative; secondly, that undue influence was used to extract the kabuliyat from the defendant; and, thirdly, that the terms of the kabuliyat are not valid under the provisions of the Bengal Tenancy Act, as the increase of rent agreed to exceeds by more than two annas in the rupee the old rent.
5. There is, in my opinion, no force in any of these pleas.
6. I agree with the learned District Judge in holding that under Sections 14 and 39 of the Court of Wards Act (IX of 1879, B.C.) the manager had a prima facie right to grant the lease, and that it must be presumed that he had the sanction of the Collector under whose authority he must have acted. Therefore the kabuliyat cannot be void and inoperative and is not contrary to the provisions of the Court of Wards Act.
7. As to the second plea, namely, that undue influence was used to extract the kabuliyat from the defendant, the first Court has found that the manager did exercise undue influence over the defendant and so induced him to execute the kabuliyat in question. I think, however, that this finding of the first Court has been displaced by the District Judge. It may be that his judgment on this point is not so full as it might have been. But I think he clearly meant to find that there was no undue influence. He points out that the lands in the possession of the defendant were re-measured and that the tenant accepted the new assessment and executed the kabuliyat; and he goes on to find, impliedly, that the kabuliyat was not extracted by undue influence, but was genuine and valid. He points out that the lands covered by the kabuliyat have been found to be in the possession of the tenant.
8. Then with regard to the third ground of appeal, the first Court found that the defendant was not an occupancy raiijat. It found this on several grounds. In the first place, it has pointed out that the former tenant was one Dhorani Dhur, and that the jama which was sold is recited in exhibit. D to be non-transferable, and that exhibit A shows that the defendant purchased a one-half share in this jama, and as the non-occupancy right was not transferable as the tenant only purchased a one-half share, and as he has not been in possession for more than 12 years, it is clear that the defendant cannot be an occupancy raiyat, Furthermore, it is pointed out that the kabuliyat, which the defendant himself executed, recites that the holding is a churcha surrat or utbandi holding, and as the defendant has not been in possession for 12 years, he cannot have a right of occupancy. This was the finding of the first Court. The District Judge decreed the suit in favour of the plaintiffs; but there is no mention at all of this question in the judgment of the lower Appellate Court. It is obvious that the present appellant never raised the question of his being an occupancy raiyat before the District Judge, and never impugned the finding of the first Court on this ground. If ho wished to impugn that finding, he might have presented a cross appeal, or taken objection at the time of the argument of the case. But he did neither. Therefore I do not think that it is open to the defendant, appellant, to impugn this finding of the first Court now, which, so far as we can see, is correct.
9. For these reasons I would dismiss this with costs.
10. I agree that the decision of the District Judge must be affirmed.
11. The first ground upon which that decision is attacked turns upon the construction of Section 39 of the Court of Wards Act of 1879, and raises an important question, which appears to be one of first impression. Section 39 provides that 'every manager appointed by the Court shall have power to manage all property, which may be committed to his charge, to collect the rents of the land entrusted to him as well as all other money due to the ward, and to grant receipts therefor; and may, under the orders of the Court, grant or renew such leases and farms as may be necessary for the good management of the property.'
12. It is argued for the appellant that as the contract, on the basis of which the present suit was instituted, was the renewal of a pre-existing lease, it must be shown, in order to establish its validity, that the manager granted it under the orders of the Court, and that, in the absence of any evidence to show that he acted under the orders of the Court, it must be presumed that the lease in question was invalid.
13. As I understand the judgment of the learned District Judge, he relied upon Section 14, which lays down that 'subject to the provisions of this Act (a) the Court may through its manager do all such things requisite for the proper care and management 1905 of any property of which it may take or retain charge under this Uma Churn Act, or which may be placed under its charge by order of a Majialdar competent Civil Court, as the proprietor of any such property, if not disqualified, might do for its care and management,' and may, in respect of the person of any ward, do all such things as might be lawfully done by the legal guardian of such ward.'
14. From this section the District Judge drew the inference that it must be assumed, until the contrary is established, that the manager had the authority of the Court to renew the lease in question.
15. In my opinion this conclusion does not necessarily follow, because the clauses of Section 14 are prefaced with the qualification that the provisions of that section must be taken subject to the other provisions of the Act and, therefore, necessarily subject to the provisions of Section 39. It follows, consequently, that if the question is raised whether in renewing the lease the manager acted under or without the order of the Court, it must be found whether there is, in fact, an order made by the Court in the particular case. As there is no evidence of an order in the present case, I will assume that the lease was granted by the manager without the orders of the Court. The question therefore arises whether the lease so granted is void and unenforceable. In my opinion a lease so granted is only voidable at the option of the ward, for whose benefit the lease is renewed. So far as I can make out, the Court of Wards Act nowhere lays down that leases granted or renewed by the manager without the orders of the Court are void. In the absence of any such express provision, I think we ought to put a reasonable construction on Section 39, and hold that, if the lease is one which, in fact, was necessary for the good management of the minor's property, it is not vitiated merely by reason of the absence of the orders of the Court. In this connection reference may be made to Section 18 of Act XL of 1858 and Section 29 of Act VIII of 1890. In Section 18 of Act XL of 1858 it was laid down that 'every person to whom a certificate shall have been granted under the provisions of this Act may exercise the same powers in the management of the estate as might have been exercised by the proprietor, if not a minor, and may collect and pay all just claims, debts and liabilities due to or by the estate of the minor. But no Such person shall have power to sell or mortgage any immoveable property, or to grant a lease thereof for any period exceeding five years, without an order of the Civil Court previously obtained.' Upon a construction of this section it was held by this Court in a series of cases, of which the case of Harendra Narain Singh Choicdhry V.T.D. Moran(1887) I.L.R. 15 Calc, 40 may be taken as the type, that a lease granted by a certificated guardian, without the previous 'sanction of the Civil Court, and therefore in contravention of Section 18 of Act XL of 1858, was not merely voidable, but void.
16. Section 29 of Act VIII of 1890 lays down the law in similar terms. But Section 30 of the Act provides that 'A disposal of immoveable property by a guardian in contravention of either of the two last foregoing sections is voidable at the instance of any other person affected thereby.'
17. Now, as is obvious, there is a marked distinction between the language of Section 39 of the Court of Wards Act and the language used in Section 18 of Act XL of 1858 and Section 29 of Act VIII of 1890, because, under Section 39, it is only provided that the manager may, under the orders of the Court, grant or renew the lease: whereas in Section 18 of Act XL of 1858 and Section 29 of Act VIII of 1890 it is provided that the guardian shall not, without the previous permission of the Court, grant a lease of property belonging to the infant. There is, therefore, no force in the contention that the lease granted by the manager without the order of the Court, as required by Section 39 of the Court of Wards Act, is void.
18. Upon the other points I have nothing to add to the judgment delivered by my learned brother.