1. An estate in Beerbhoom known as the Khanpore estate, comprises seventeen items of immovable property. In 1934 thirty three persons made an application to the District Judge, Beerbhoom, under Section 93, Ben. Ten. Act for appointment of a common manager of those seventeen items of property. Another person was subsequently added as a co-applicant. There were two opposite parties to the application, which was based on the grounds mentioned in Sub-section (ii) of that section. Of those thirty-six persons the first twenty-nine out of the applicants and the two opposite parties had shares in all the seventeen items; applicants 31 to 33, (the Dutt's) had shares in items 1, 2 and 17 and applicant 30 (Haripada Biswas) had share in items 1, 2, 3, 4 and 6 only. Applicant 34 (the added applicant) Binapani Dassi, had a darpatni interest in an anna share of item 1 only. She had no interest in any other property and the other parties to the application had no interest in that darpatni. The result was that the parties fell into the following five groups: (1) All the parties, except applicant 34, were all the co-owners in items 1 and 2; (2) Applicants 1 to 29 and 30 and the opposite parties were all the co-owners in items 3, 4 and 6; (3) Applicants 1 to 29 and 31 to 33 and the opposite parties were all the co-owners of item 17; (4) Applicants 1 to 29 and the opposite parties were the co-owners of items 5, 7 and 8 to 16; (5) Applicant 34 was by herself the sixteen annas owner of the darpatni. No party to the application was her co-sharer.
2. There was no indication in the application that all the parties were not co-owners of all the seventeen items of property. On the contrary, the application gave the impression that all the applicants and the opposite parties were co-owners of all the seventeen items of property. That application was numbered Miscellaneous case No. 15 of 1934. An order was made by the learned District Judge in terms of Section 94 of the Act requiring the parties themselves to appoint a person as common manager and on their failure to do so within the time given the District Judge by an order appointed respondent 1 in 1934 as the common manager of all the seventeen items of property under Section 95 of the Act. Two persons Hemaitulla and Hefazulla, whose representatives were among the first twenty-nine applicants who had made the application for the appointment of a common manager had 5 annas odd share in all the seventeen items of property. They mortgaged 4 annas share in items 1 and 2 to the plaintiff-appellant, Gopinath Biswas. The latter sued to enforce his mortgage and got a final decree for sale. Thereafter he applied to execute the decree. Respondent 1 as common manager was made a party to the execution proceedings but without the sanction of the District Judge who had appointed him and continued to be a party throughout those proceedings. At the court sale Gopinath Biswas purchased the mortgaged property in 1935 and the sale was confirmed in 1937. Possession was delivered to him by Court on 27th and 28th February 1937. The delivery of possession was, as it must be in the circumstances of the case, only symbolical. There cannot be any question that he acquired 4 annas share in items 1 and 2 and has stepped into the shoes of his mortgagors. The substantial question in this appeal is whether he is bound to receive profits from the hands of respondent 1, the common manager, or is he entitled to turn out the latter from the management of his share and to manage his share in khas. With a view to manage his share himself he instituted the suit in which this appeal arises on 25th March 1940 in the Court of the Subordinate Judge, Beerbhoom. The lower Courts have differed, the trial Court giving him a decree but the lower appellate Court has dismissed his suit. The suit depends upon two questions:
(i) Whether the appointment of respondent 1 in Miscellaneous Case No. 15 of 1934 by the District Judge as common manager was illegal that is to say whether the order of appointment is a nullity; and (ii) what is the effect of the delivery of possession to the plaintiff by the Court in the execution proceedings in which the common manager had been made a party. The first point is not free from difficulty and requires a critical examination of the provisions of Sections 93, 94, 95, 98 and 99, Ben. Ten. Act, as they stood before and after the amendment of 1928. The leading decisions given by this Court on Section 93 of the Act, as it stood before the amendment of that section by Act 4 of 1928 are Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659, Kumar Saradindu Roy v. Collector of Rangpur ('07) 11 C. W. N. 1143, Kanailal Ghose v. Besir Pramanik ('15) 2 A. I. R. 1915 Cal. 636 and Jotindra Mohan Ghosh v. Rebati Mohan Dass ('32) 19 A. I. R. 1932 Cal. 275. As far as we are aware, there is no decision on the point on the Act as amended in 1928. The last mentioned decision was reversed by the Judicial Committee of the Privy Council on a different point, Rebati Mohan Das v. Jatindra Mohan Ghosh ('34) 21 A. I. R. 1934 P. C. 96 namely, on the applicability of Section 80, Civil P. C., to a suit to enforce a mortgage executed by a common' manager, but the point relating to the validity of the appointment of the common manager which was dealt with by this Court was not touched by the Judicial Committee. The amending Act 4 of 1928 substantially amended Section 93 only. Except with a minor addition, not material to the point before us, Sections 94, 95, 98 and 99 stand as they were before. The substantial differences between Section 93 before and after this amendment are: (1) that after the amendment an application (which was not possible before the amendment) for the appointment of a common manager can be made, where there is a dispute as to the management of the joint lands of two or more estates or tenures and (2) that a common manager can now be appointed for only that portion of an estate or tenure or of only those parts of joint lands in respect of which there is a dispute as to management. A new Sub-section namely (ii) was added in Section 93 which only enlarged the grounds required for appointing a common manager.
3. We will firstly review the cases relevant to the point before us, which had been decided before the amendment of 1928. The first ease is in Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659. That case laid down the proposition that where there are several items of joint property which do not belong to the same set of co-owners one application for appointment of a common manager is not maintainable, but the properties must be divided into groups and there must be a separate application for each one of such groups, each group consisting of properties in which the co-owners are the same set of persons. Each one of such applications would have to be treated as a separate case and there must be separate orders for appointment--one order in respect of each group of properties. That case was decided on a reference made by the District Judge before whom one application had been made in respect of several estates in all of which all the applicants did not have shares, but some had shares in common with the opposite parties in some of those estates and the others had in common with the opposite parties shares in the others. The proper procedure to follow in a case of that type was laid down, and though no reasons were given for the answers to the questions referred, the procedure indicated in that case has been accepted as the correct procedure in later decisions of this Court: Kumar Saradindu Roy v. Collector of Rangpur ('07) 11 C. W. N. 1143, Jotindra Mohan Ghosh v. Rebati Mohan Dass ('32) 19 A. I. R. 1932 Cal. 275. In Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659, the reference was made and answered at the earliest stage of the proceedings, as soon as the application under Section 93 was made and therefore no question could be raised or decided as to what would be the legal effect if one order of appointment was made under Section 95 on one application, where by reason of the grouping of estates several applications ought to have been made, each in respect of each group, and separate orders passed. In Kumar Saradindu Roy v. Collector of Rangpur ('07) 11 C. W. N. 1143, however, one order of appointment had been made by the District Judge in a case of that type. On revision that order was set aside, and the Collector, who was the applicant was directed, if he desired to have a common manager, to make separate applications, one application for each group of estates or tenures. It was further pointed out that each one of such applications would be a separate case with a separate number requiring a separate order of appointment, though by those several orders the same man, may, in the discretion of the District Judge, be appointed common manager of the several groups of estates or tenures. Some reason was given for the conclusion. The impugned order of the District Judge was held to be defective and was set aside. As the order was set aside in revision, this case must be taken to be an authority for the proposition that the procedure would be regarded as materially irregular if only one application was made resulting in one order of appointment, where by reason of all the parties to that application not having interest in all the joint properties scheduled to that application separate applications ought to have been made and separate orders of appointment passed. The procedure was not regarded as merely irregular, irregular in form only and not in substance, for then the order made in 11 C. W. N. 1143 would not have been set aside in revision. Moreover, a critical examination of the provisions of Sections 93, 94, 95, 98 and 99 would lead at least to this conclusion, namely, that the order of appointment of a common manager if made on one application by one order, where several ought to have been made according to the groupings, would be regarded at least as not merely but substantially irregular.
4. On an application being made under Section 93 by some of the co-owners of an estate, with the remaining co-owners as opposite parties, a notice must be issued on the co-owners to show cause why the co-owners themselves should not appoint a common manager. Any one of them can appear and contend that there is in reality no dispute as to management. The issue as to whether there is a dispute as to the management so raised must be decided before proceeding to the next stage of the proceedings. If that issue is decided by the District Judge in the negative, the proceedings must terminate then and there. If it is decided in the affirmative or if the co-owners fail to show cause within the time mentioned in the notice, the first stage would end with an order directing the co-owners to appoint a common manager of their choice and the second stage would begin by serving that order under Section 94 on such of the co-owners who had not appeared before. The statute requires that the time 'that must be given to the co-owners to appoint their common manager must be at least one month from the making of that order. If the co-owners agree on a man they are simply to give intimation to the District Judge and the District Judge would have nothing further to do in the matter. The man so appointed by the co-owners would not be under the control and supervision of the District Judge. His salary would not have to be fixed by the District Judge, he has not to submit his accounts to the District Judge and would have no power to move the District Judge for directions and would be under no duty to do so. He cannot be removed by the District Judge, nor can the District Judge release the estate from common management: Jogendra Nath v. Khitish Chandra ('36) 40 C. W. N. 1312. These consequences follow from the language of Sections 98 and 99. This is the second stage of the proceedings. The third stage would start only if the co-owners fail to appoint a common manager themselves within time. On that contingency, the District Judge is required to appoint a common manager, fix his pay and define his duties. The man so appointed must act under the control and supervision of the District Judge, submit accounts to the District Judge, is liable to be removed by the District Judge and the estate can be released by the District Judge for the reasons mentioned in Section 99.
5. Suppose then there are four estates X, X/1 and Y, Y/1. The co-owners of the estates X and X/1 are seven persons A to A3 and B to B4 and of the estates Y and Y/1 those seven persons and five more, namely, C to C5. The A series make one application for appointment of a common manager in respect of all those estates making the B and the C series opposite parties and there are no indications in that application, as in the application in the case before us, to show that the C series are not co-owners of X and X/1. In this case, the properties fall into groups, namely, (1) X and X/1, in which the A series and the B series are the co-owners and (2) Y and Y/1, in which the A series, B series and C series are the co-owners.
6. According to Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659 and Kumar Saradindu Roy v. Collector of Rangpur ('07) 11 C. W. N. 1143 two applications are to be made, one in respect of X and X/1, with the A series and B as parties, and the other in respect of Y and Y/1 with the A, B and C series as parties. As one application was made, notices issued under Section 93 would mention both sets of properties without distinction. If no cause is shown, one order would be made under Section 94. If thereafter A and B series give intimation to the District Judge that they have agreed to appoint a person p, as common manager, but C series remain silent, the District Judge would make an appointment himself for all those estates as a matter of course as there was nothing in the application which would indicate that only A and B series and none else were co-owners of the X group, whereas if the correct procedure had been followed, as is indicated in Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659, the District Judge would have nothing further to do n respect of estates X and X/1 and could appoint a person as common manager of estate Y and Y/1 only. The appointment by him under Section 95 of a common manager of all those estates X, X/1, Y and Y/1, would result in the most serious consequences in view of the results which follow from the construction of Sections 98 and 99--results which we have indicated above. The notices would be defective and so the whole procedure would, in our opinion, be fundamentally defective. We would go further and hold that the defect would go to the root of the matter. It would not be a case of substantial irregularity in the procedure only but would make the order of appointment made under Section 95 an illegal one. There having been a non-compliance with the essentials of the procedure a suit as the present would lie. This principle had been laid down by the Judicial Committee of the Privy Council in Secretary of State v. Jatindra Nath ('24) 11 A. I. R. 1924 P. C. 175 at p. 250 of the report. This view of ours is in accord with what was decided by a Division Bench of this Court in Kanailal Ghose v. Besir Pramanik ('15) 2 A. I. R. 1915 Cal. 636 which held that the order of appointment of a common manager under Section 95 would be an illegal order where the formalities imposed by the statute had not been strictly complied with. The mischief in the type of cases which is before us would be as serious as in cases where the appointment of a common manager is made by an order under Section 95 without notices being issued under Section 93, or if issued, by not serving them on a co-owner or co-owners of the estate proposed to be placed in charge of the common manager. If the order for appointment be an illegal one, a suit would lie at the instance of any co-owner of the estate or estates to recover possession from the person who poses to be the common manager but who is in reality not so, as his appointment was not a valid one: Indu Bhusan v. Annapurna ('07) 6 C. L. J. 216.
7. The learned advocate for the respondents, however, contends that the order for appointment in the type of cases we have before us would not be an illegal one and to support his contention he relies upon the case in Jotindra Mohan Ghosh v. Rebati Mohan Dass ('32) 19 A. I. R. 1932 Cal. 275. An examination of that case, however, does not bear out his contention. In that case Mukherji J. accepted as good the rule of grouping of estates as laid down in Fazel Ali v. Abdul Mozid ('87) 14 Cal. 659. He held that the mortgage in suit executed by the common manager was a good mortgage as the common manager who had executed it had been validly appointed by the District Judge. The facts in that case as disclosed in the judgment were as follows: There were several revenue paying estates of which the proprietors were the same set of persons. Under those estates were many patnis, taluks and shikmi taluks in all of which, except in one patni taluk, the self -- same proprietors were the co-owners. In the other patni taluk, however, those proprietors were co-owners but there was another co-owner who had no interest in the revenue paying estates. Two separate orders were in fact made by the learned District Judge under Section 95, one in respect of the revenue paying estates and the patni and shikmi taluks falling under the first group and another order in respect of the other patni taluk in which the extra person was also a co-owner, but the same person was appointed common manager in respect of all the estates and taluks. The fact that separate orders for appointment were made distinguishes the case from the one we have before us. The orders for appointment were perfectly valid, though it may not have been prudent to appoint the same man as common manager of the two groups of property. The appointment of the same man in respect of several groups of estate but by separate orders in separate proceedings would not be illegal, the selection of the man for the office of common manager being a matter of discretion for the District Judge. That case therefore does not militate against our view. The conclusion to which we have arrived as indicated above in our opinion represents the law before the amendment of 1928.
8. The next question is whether the amendment of 1928 makes any difference. Our answer is in the negative. We have already pointed that Sections 94, 95, 98 and 99 remain as before with a slight alteration in Section 94 which is not material to the case before us. The three stages in the proceedings also remain as before. As Sections 94, 95, 98 and 99 remain unaltered the consequences are the same as before, where estates in which all the parties are not co-owners are lumped up in one application and order for appointment is made under one Section 95, in respect of all those estates. We have already pointed how serious those consequences may be, and it is for those consequences that we have held that the appointment of the common manager would not only be materially irregular but illegal. In the case before us the joint properties over which respondent 1 was appointed common manager fall into four distinct groups, and the darpatni which we have placed in the fifth group was a property in respect of which no common manager could at all be appointed, because no one else except applicant 34 had any interest in it. In it there was no co-owner. The appointment of the said respondent as common manager over all 17 items of properties by one order is therefore an illegal one. In this view of the matter, the other question raised by the appellant is not material and we express no opinion thereon. The plaintiff is therefore entitled to recover possession from respondent 1 and manage his share himself till another common manager is legally appointed in a new proceeding. The result is that this appeal is allowed. The judgment and decree of the learned District Judge are set aside and those of the Subordinate Judge restored. The plaintiff must have his costs throughout from respondent 1 personally.