Richard Garth, C.J.
1. The plaintiff in this case sues as reversionary heir of one Rajkisto Bysack to recover possession of a house and land in the town of Calcutta, to which he claims to have become entitled, on the death of the widow and heir of Rajkisto Bysack.
2. The widow's estate in this property was sold under an execution against her so long ago as the year 1833, and purchased by a gentleman named Templeton; and from Templeton it passed into the hands of several persons in succession, the last of whom is the present defendant. One of those persons, many years ago, built a house upon this land, which is known by the name of 40, Shibtollah Street, and the only question in this appeal is, whether the plaintiff, who is admittedly entitled to the land, is entitled to the house also.
3. The defendant contends that the house is hers; and that she is entitled, at the option of the plaintiff, either to be paid by him a fair price for the house, or to be allowed a reasonable time, after the plaintiff has declared his option, for removing the materials of it, and restoring the land to the condition in which it was before the house was built.
4. The defendant has proved no usage or custom of Hindu law in support of this contention, but she relies mainly upon the Full Bench judgment in the case of Thakoor Chunder Paramanick B.L.R., Sup. Vol., 595 as laying down a general rule of Hindu law to that effect. of course, if I took that view, I should feel bound to follow the Full Bench Ruling; and I observe that, in the case of Russick Lall Muddock v. Lokenath Kormokar I.L.R. 5 Cal. 688 a suit between landlord and tenant in Calcutta, that rule was followed by the learned Judge who tried this cause in the Court below. He seems, however, to have considered that it was a rule of Hindu law, and that, in a suit between Hindus, ho was bound in a matter of contract to abide by it.
5. In this case the same learned Judge thought that the rule did not apply, because the question here was, not one of succession or inheritance or contract, within the meaning of the 21 Geo. III, c. 70, Section 17.
6. I confess that, after giving a good deal of attention to the Full Bench judgment, and to the authorities there referred to, I think that the law laid down is not intended specially as a rule of Hindu law. The learned Chief Justice, it is true, quotes certain Hindu, authorities relating to the law of landlord and tenant and joint proprietorship, but he also in support of his conclusions relies upon the Mahomedan law and the civil law, as well as upon Act XI of 1855 of the Indian Legislature.
7. It seems to me, therefore, that the Full Bench rather intended to deduce from those various authorities a rule of equity and good conscience to be generally observed in the mofussil; and in the mofussil probably, even in the present day, such a rule would work equitably. The sort of houses that are generally found there are, for the most part, readily removeable; and cutcha or semi-cutcha buildings, such as are erected by the poorer native population, have always been considered as in the nature of moveable property.
8. But in Calcutta the case is very different. The Full Bench Ruling, if generally applied there, would be productive of great inconvenience; and, moreover, we are bound in Calcutta according to the express language of the Charter, not by the law of equity and good conscience which prevails in the mofussil, but by the law of equity and good conscience which was administered by the Supreme Court (see Sections 19, 20, and 21 of the Charter of 1865). That law, I consider, is, generally speaking, the self-same law of equity which is administered in our Courts in England. We are bound of course, in suits between Hindus, to pay all due regard to any Hindu law or usage which can be shown to prevail in Calcutta; but in this particular case, as I before observed, no attempt has been made to establish any such law or custom, nor has a single authority been cited before us, which, in my opinion, justifies in any degree the appellant's contention. We have no proof whatever as to where, or by whom, the house in question was built; but the builder must have claimed under Templeton, and must be taken to have known perfectly well the limited nature of Templeton's estate. Had Templeton himself built the house, it is clear that, upon the widow's death, he would have had no right to remove it; and it is difficult to see how any one claiming under Templeton could have had a larger right than he had.
9. I confess that I see no equity, but on the contrary a vast deal of injustice, in allowing a tenant for life to build upon a property in such sort as to ruin a reversioner if he were compelled to purchase the buildings, or, as an alternative, to deprive him of the use of his land during the many months which might be occupied by the representatives of the tenant-for-life in pulling down the buildings and removing the materials. What might be a very just law in the mofussil, would operate in large towns as a monstrous evil; and I believe that if the Appellant's contention were well founded, the consequences in Calcutta would be most disastrous.
10. I think, therefore, that the Court below was right, and that the appeal should be dismissed with costs on scale 2.
11. The plaintiff is entitled to have this case decided on the footing that Templeton, the purchaser at the Sheriff's sale, was aware he was buying only the qualified interest of a Hindu widow. And that being so, the fact that Templeton, or any one claiming through him, built on the land would not, in my opinion, apart from any question of Hindu law, give him or them an equity entitling him or them as against the reversioner to remove the materials.
12. It has been argued that this is a question of succession,' and must, under 21 Geo. III, e. 70, Section 17, be governed by Hindu law.
13. It appears to mo, however, that it is not a question of succession or inheritance.
14. The defendant in fact admits that the plaintiff is entitled to succeed to the house, subject only to a right in the defendant to be compensated, which right does not accrue to the defendant until after the moment of succession. The right to compensation, or the alternative right to take away the materials, if such rights existed, would not to my mind be rights of succession or inheritance. And it has not been shown that such rights exist in Hindu law except in the case of contracts for tenancies where rent is paid.
15. The statement of Narada referred to in the Full Bench case of Thakoor Chunder Paramanick B.L.R., Sup. Vol., 595 is confined to that state of circumstances. Nor does that Full Bench case deal with the equity as a provision of Hindu law, but, as it appears to me, decides it as a rule of equity and good conscience applicable to the particular case, the property being in the mofussil and the rule of equity and good conscience being the rule applicable.
16. Nor would it necessarily follow that what might be a rule of equity and good conscience applicable to the country, would be equally applicable to Calcutta or a town. It would indeed be difficult to apply a rule like this to a town, and as the rule in Narada does not include the present case, I think it would be improper to extend it to that which the defendant only claims to be an analogous case.
17. We must, therefore, deal with the question according to the usual equities applicable to cases in Calcutta--namely, equities administered by an English Court of Equity. And especially in this case the defendant, claiming as he does through Templeton, a European, can, I think, claim no greater or other equity than Templeton himself would have been entitled to claim.
18. I, therefore, think the plaintiff' is entitled to recover free from any claim of the defendant to the materials of the house.