1. The facts connected with this Rule are as follows: One Hari Dasi is the administratrix of the estate of her husband Tulsidas Dey. Certain premises forming part of the estate having been acquired under the Land Acquisition Act, one lac and forty-eight thousand rupees was awarded as compensation. She was not satisfied with the award, and caused a reference to be made to the Calcutta Improvement Tribunal for the determination of the proper amount of compensation payable for the premises, and the Tribunal enhanced the award by Rs. 27,000. Both the said sum and the amount, of the original award have been invested in War bonds under Section 31 of the Land Acquisition Act. The opposite party, Messrs. H.N. Dutta & Co., acted as Solicitors on her behalf in the proceedings before the Land Acquisition Collector, as well as before the Improvement Tribunal. They obtained a decree against her in the Calcutta Small Cause Court for Rs. 2,018 and odd for their bill of costs for the work done in connection with the said proceedings, and that Court requested the Improvement Tribunal to realize the sum by the sale, of part of the Government securities and to send it to the Small Cause Court for satisfaction of the decree. The petitioner, who is the reversioner expectant on the death of the widow, objected to the payment of the costs by sale of the Government Promissory Notes, but his objections were over-ruled by the President of the Tribunal, who directed the sale of the requisite number of the Government Promissory Notes, and the amount to be sent to the Small Cause Court for satisfaction of the decree obtained by the opposite party. This Rule was thereupon obtained by the petitioner.
2. Several questions were raised in the case, viz., whether in this country a Solicitor has a lien for costs in respect of any work done before any Court within Calcutta other than on the Original Side of the High Court, whether a Solicitor has a lien over immovable property, the compensation money awarded being regarded as immovable property, and lastly even if a Solicitor has any lien whether the opposite party has not lost it by obtaining a decree in the Small Cause Court. The Court below decided these questions in favour of the Solicitor, and the same questions have been raised in this Court.
3. We think it unnecessary to consider the question of Solicitors lien raised in this case, as the case may be disposed of with reference to the provisions of Section 32(1) of the Land Acquisition Act. That section provides for investment of money awarded as compensation for land belonging to persons incompetent to alienate it, in Government or other approved securities and payment of interest to the person or persons who would for the time being have been entitled to the possession of the land, until such money so invested shall be applied in the purchase of such other lands or in payment to any person or persons becoming absolutely entitled to the same.
4. The section has been given a liberal interpretation in the case of Kamini Debi v. Promotho Nath Mookerjee (1). The property acquired under the Land Acquisition Act was debutter property; and it was held that where a portion of debutter property was acquired under the Act, and the compensation money was invested in approved securities, the shebait is entitled to withdraw a portion of the invested funds and apply it to effect necessary repairs to the remainder of the property. The learned Judge observed that the fiction of the money being impressed with the character of real estate, 'if maintained for the protection of beneficiaries, ought not also to be applied to fetter the trustee needlessly.' Now if the money can be applied to the protection of the trust, property from physical damage, there seems no good reason why it should not be applied for its protection against diminution resulting from undervaluation in land acquisition proceedings.
5. The additional amount of compensation money secured by the proceedings in respect of which the costs were incurred, is an addition to the corpus of the estate the benefit of which will ultimately be received by the reversioners. The costs of the proceedings therefore, should legitimately come out of the fund which is the result of the proceedings.
6. It is true that the lady is administratrix to the estate and so has only limited power of alienation. If, however, the Land Acquisition Court can direct a portion of the compensation money to be applied for payment of costs of repairs of a debutter property, we think the Court on the same principle can apply a portion of the money to meeting the costs of the proceedings by which the money came to be awarded to the lady. We think that this view is consistent with the principles of justice, equity and good conscience and should be adopted.
7. It has been argued on behalf of the petitioner that whatever payment may be made out of the sum in deposit on the application of the administratrix herself, no such payment can be ordered on the application of the opposite party. We think, however, that, on the principle we have adopted, the creditor to whom a payment of this nature is legitimate may as well move the Court to make the payment as the person from whom the sum is due.
8. The Solicitor, however, is entitled only to the costs in connection with the valuation case before the Tribunal, including the costs of the reference.
9. The order of the Court below is modified and the case sent back to the lower Court in order that such amount may be ascertained. The Solicitor will be entitled to get the amount which may be ascertained by the Court below to be the costs incurred in the proceedings for enhancing the award of the Land Acquisition Collector, including the costs of the reference. He will not be entitled to any costs incurred in relation to the investment of the money and other matters This order, however, will not prejudice the right of the opposite party to recover the balance of his costs by any other method which may be open to him.
10. The opposite party will get costs, two gold mohurs.