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Karnani Industrial Bank Ltd. Vs. Nawab Bahadur of Murshidabad - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1930Cal159
AppellantKarnani Industrial Bank Ltd.
RespondentNawab Bahadur of Murshidabad
Cases ReferredBajindra Narain Singh v. Sundar Bibi A.I.R.
Excerpt:
- .....of the bank for an order that a receiver should be appointed in execution of these decrees of the rents and profits of certain properties, all of which were within the ordinary original civil jurisdiction of this court. the form of the application is what is known in england as equitable execution. it is a form of execution recognized by the civil procedure code under section 51 thereof. the contention on behalf of the respondent nawab is that, having regard to the murshidabad act, the rents, issues and profits of these properties cannot be taken in execution by means of a receiver or at all. the act in question is act 15 of 1891 and the main function of the statute was to confirm an agreement between the secretary of state and the then nawab. i do not proposo here to set out the.....
Judgment:

Rankin, C.J.

1. In my opinion, the appeal must be allowed.

2. The application is one by the Karnani Industrial Bank Limited who appear to be unsecured creditors of the respondent for a debt which was represented at one time by four decrees but which was adjusted on 5th July 1926 at the sum of Rs. 74,293 due on 31st May of that year. The arrangement between the parties was in writing and it is clear that, in default, the Bank was to be entitled to realise by way of execution the moneys that would be outstanding. The present question arose upon an application on behalf of the Bank for an order that a receiver should be appointed in execution of these decrees of the rents and profits of certain properties, all of which were within the ordinary original civil jurisdiction of this Court. The form of the application is what is known in England as equitable execution. It is a form of execution recognized by the Civil Procedure Code under Section 51 thereof. The contention on behalf of the respondent Nawab is that, having regard to the Murshidabad Act, the rents, issues and profits of these properties cannot be taken in execution by means of a receiver or at all. The Act in question is Act 15 of 1891 and the main function of the statute was to confirm an agreement between the Secretary of State and the then Nawab. I do not proposo here to set out the history of the matter; but in the end the position adopted under that agreement is this that there were certain properties which did not belong to the Nawab's predecessors as of right but which belonged, in effect, to the public domain and these properties were given over upon terms of this agreement to the successive Nawabs upon certain limitations which would ensure, in the opinion of the legislature, that these properties should always be a support sufficient to maintain the dignity and position of the Nawab Bahadoor and his family. The Act and the agreement deal with matters apart altogether from the immovable properties and I confine what I have to say to the immovable properties. It was agreed and declared that the several immovable properties in Schedules 1 and 2 and also the immovable properties in Schedule 3 and all other immovable properties thereinafter mentioned:

shall henceforth and for ever be held and enjoyed by the said Nawab Bahadoor and such one among his lineal heirs male as may be successively entitled to hold the said titles in perpetuity with and subject to the incidents, powers, limitations and conditions as to inalienability and otherwise hereinafter contained.

3. The limitations include a limitation which prohibits the Nawab or any successor from selling, mortgaging, devising or alienating any of the properties mentioned save by lease or demise for a term not exceeding 21 years and under a rent without bonus or salamee. It was further provided that:

in case the Nawab or any of his lineal heirs male shall at any time in contravention of the terms of the agreement attempt to sell or alienate or shall by a course of extravagance Or by waste or mismanagement of the said immovable properties disable himself in the opinion of the Secretary of State from duly maintaining the dignity of the said position and station, then it shall be lawful for the Secretary of State at his discretion to outer into and upon the said immovable properties, to take possession thereof and take the rents, issues and profits.

and so forth.

4. Now, before the learned Judge, a good deal was made of the case of Davis v. Duke of Marlborough [1818] 1 Swan. 74 in which a similar question arose as regards the Duke of Marlborough's estate. I agree with the learned Judge that the position in the present case is distinguishable from the position with which Lord Eldon had to deal in 1818. In that case all that appears to have happened was that the aid of the legislature was given at the instance of the Duke to enable him to settle upon succeeding generations certain properties so that these properties would always go with the title whereas the Duke might by granting a settlement at his own hand have attempted the same result, it would have been possible in succeeding generation to bring to an end the limitations or restrictions (or some of them) which the donor had imposed. Accordingly, the aid of the legislature was invoked and there were put stringent limitations which had reference entirely to this that the property was rendered in the hands of each successor inalienable so as in no way to defeat the claim and enjoyment of the next in succession. Accordingly, Lord Eldon, having taken that view of the statute, had little difficulty in rejecting the contention that it was not open to him to appoint a receiver of the rents and profits.

5. In this case it is quite true that the statute makes it quite clear that these immovable properties are given for the due maintenance and support of the rank and station of the Nawab of Murshidabad. That is the general purpose of the whole grant. The first provision is a provision in aid of that purpose. It-is a provision whereby no alienation can be made of these properties except by an ordinary lease for 21 years in the ordinary course and the effect of that provision is to make it clear that no Nawab would be able to defeat the claim of his successor to the whole of the properties nor would he be in any way able to prevent his successors from having freedom of management with the not unreasonable limitation that lease without salamee or bonus for a term not exceeding 21 years would be valid as against the successors of the man who granted it.

6. Now, in this case it is contended by Mr. B.K. Ghose on behalf of the Nawab that, apart altogether from, showing that what is asked by way of relief in this case would be in conflict with the first of the conditions which I have quoted, I shall call it shortly the condition against alienation there is in this Act an implied or indirect prohibition against any portion of the rents, issues or profits of these properties being taken in execution. It is said that the intention of the legislature is that the whole of that income is necessary for the maintenance and support of the dignity and station of the Nawab and that, apart from express prohibition in the clause to which I have alluded, there is an implied prohibition making it contrary to the Act and contrary to public policy that any portion of the income of these properties should be taken in execution for a decretal debt. To that proposition, I cannot assent. It appears to mo that there is nothing in this Act which would prevent the Nawab from borrowing a sum of money and giving an assignment of the next month's rent of a certain house by way of consideration. I cannot see that it is laid down that be is never to have power to anticipate by a single month any portion of the rents and profits of these properties. I cannot see that it is the intention of the Act that no degree of extravagance on his part should in any way prevent the perpetual flow of this income into the Nawab's coffer; and, in my judgment, the position is one which hat been very carefully reviewed. The legislature has not attempted to put any restrictions save those which are mentioned and which are ample to secure that each Nawab as he comes into succession will have the whole use of the properties which the legislature originally gave. As regards the course of extravagance by which a Nawab might cripple himself, anticipating the future income to accrue in his own lifetime, it appears to me that contingency is one of the things contemplated by the concluding provision-a provision which enables the Secretary of State to step in if by course of extravagance A, the Nawab of the day should disable himself from duly maintaining his dignity and position. It seems to me that in this case the reasonable remedy - and indeed the only reasonable remedy - is by the appointment of a receiver. That certainly is discretionary. It is not business to suppose that each tenant's rent as it becomes due could be taken in attachment.

7. A case has been cited to us which appears to me to be of a different character from the case now before the Court - the case of Bajindra Narain Singh v. Sundar Bibi A.I.R. 1925 P.C. In that case, the Privy Council approved of the appointment of a receiver as a means of getting execution against certain properties out of which the debtor had a right to maintenance which right to maintenance was not liable to attachment by the provisions of 60 (1) of the Code. In the present case, it does not seem to me to be right or necessary that this Court should make provision for any provision of the rents and profits to be received by the receiver being reserved for the maintenance of the Nawab. We are dealing with a certain number of properties, with a debt of some Rs. 74,000 and, in my judgment, we ought to appoint a receiver of the rents, issues, and profits of those properties by way of execution in the ordinary course. The learned Judge has said that, if the Secretary of State were to take action under the Act, the Court might be placed in a most invidious and derogatory position, if a receiver were appointed. I do not think that the Secretary of State would be likely at his own hand to interfere with the position of a receiver appointed by this Court; but there can be no doubt that if the Secretary of State did take action, the receivership would for all practical purposes come immediately to an end and this Court would be bound immediately to withdraw the receiver, just as it would be bound to do if unfortunately the life of the present holder of the dignity were to come to an end.

8. In my judgment, this appeal must be allowed with costs in both the Courts and the Official Receiver must be appointed receiver of the rents, issues and profits of the properties mentioned in the application. We give the receiver the ordinary power to bring suits against tenants without special permission. He is not to interfere with possession. The receivership will come to an end the moment the money is realized.

C.C. Ghose, J.

9. I agree.


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