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Surendra Nath Majhi Vs. Iswar Majhi - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1249 of 1963
Judge
Reported inAIR1974Cal216
ActsHindu Law
AppellantSurendra Nath Majhi
Respondentiswar Majhi
Appellant AdvocateSaktinath Mukherjee, ;Bidyut Kumar Banerjee, ;Satyajit Banerjee and ;Tarun Chatterjee, Advs.
Respondent AdvocateMukul Gopal Mukherjee, Adv.
DispositionAppeal allowed
Cases ReferredArjun Chandra v. Trailakya Mani Dassi
Excerpt:
- .....belonged to one pitha majhi, who had a raiyati interest therein. pitha majhi died leaving his widow maku mejhani, who also died in 1956. it is not disputed that maku mejhani had only a limited interest in the disputed land. it is also not disputed that the plaintiff, who is the sister's son of pitha majhi, is the next reversioner. during her lifetime, in 1940 maku granted a permanent lease of the disputed land including the homestead in which she had been living, in favour of her brother'sson iswar, the defendant, at an annual rent of rs. 2/2/- and a selami of rs. 95/-. after the death of maku, the plaintiff filed the instant suit on november 20, 1957.3. the suit was contested by the defendant. his defence was that maku mejhani's limited interest was transformed into an absolute.....
Judgment:

M.M. Dutt, J.

1. This appeal is at theinstance of the plaintiff and it arises out of a suit for recovery of possession of the disputed land.

2. The disputed land measuring 14.71 acres, admittedly, belonged to one Pitha Majhi, who had a raiyati interest therein. Pitha Majhi died leaving his widow Maku Mejhani, who also died in 1956. It is not disputed that Maku Mejhani had only a limited interest in the disputed land. It is also not disputed that the plaintiff, who is the sister's son of Pitha Majhi, is the next reversioner. During her lifetime, in 1940 Maku granted a permanent lease of the disputed land including the homestead in which she had been living, in favour of her brother'sson Iswar, the defendant, at an annual rent of Rs. 2/2/- and a selami of Rs. 95/-. After the death of Maku, the plaintiff filed the instant suit on November 20, 1957.

3. The suit was contested by the defendant. His defence was that Maku Mejhani's limited interest was transformed into an absolute interest by virtue of the Hindu Succession Act coming into force. It was contended that Maku was competent to alienate the property and that the defendant having acquired a permanent lease in respect of the disputed land on payment of consideration, he was not liable to be evicted from the same and that the plaintiff had no interest therein.

4. The learned Munsif came to the finding that the Hindu Succession Act did not apply to the parties who, admittedly, belonged to Scheduled Tribes, as specified in the Notification issued by the President of India under Article 342(1) of the Constitution Maku Mejhani being a member of the Scheduled Tribe, the provisions of the Hindu Succession Act did not apply to her, in view of Section 2(2) of the said Act. The learned Munsif further held that the transfer of the disputed land by Maku in favour of the defendant was not supported by any legal necessity and that the transfer was made by her in order to defeat the interest of the plaintiff. Upon the said findings, the learned Munsif decreed the suit. The defendant preferred an appeal against the judgment and decree of the learned Munsif, which was heard by the learned District Judge, Bankura. The learned District Judge affirmed the finding of the learned Munsif that the transfer was not supported by any legal necessity. The learned District Judge also found that the Hindu Succession Act did not apply to Maku. But, relying on a decision of Sir Manmatha Nath Mukherjee in Arjun Chandra v. Trailakya Mani Dassi, 37 Cal WN 333 = (AIR 1933 Cal 610), the learned District Judge took the view that the permanent lease granted by Maku in favour of the defendant was binding upon the reversioners and that the plaintiffs could not take possession of the disputed land in view of the provisions of the West Bengal Estate Acquisition Act, 1953. Upon the said findings, the learned District Judge allowed the appeal and dismissed the plaintiff's suit. Hence this second appeal at the instance of the plaintiff.

5. The power of a widow to grant a permanent lease has been dealt with by Sir Dinshah Mulla in his book on Hindu Law in Article 186 at p. 215. It has been stated in that Article that a widow or other limited heir may in the exercise of her power of management grant leases of properties belonging to the estate; but she has no power to grant a permanent lease or a lease for a long term so as to bind the reversioner, unless it is justified by legal necessity, or it is for the benefit of the estate, or made with the consent of the next reversioners. Thisprinciple of law, as stated in Mulla, is a well-established one and unless a permanent lease or a permanent alienation is supported by justifying legal necessity, it cannot bind the reversioner. In Arjun Chandra Mandal's case 37 Cal WN 333 = (AIR 1933 Cal 610) referred to above, Mukherji, J. has taken the view that an under-raiyat coming upon the land under a permanent sub-lease from a Hindu widow, not justified by legal necessity but otherwise bona fide, and acquiring an occupancy right by custom within the widow's lifetime, is protected from eviction at the instance of the reversioners although the sublease does not bind them. With great respect, the proposition of law, which has been laid down in that decision, is against the well-established principles of Hindu law. Even assuming that that is a correct principle of law, still the learned Munsif having found that the permanent lease was created by Maku Mejhani in order to defeat the interest of the plaintiff, the same cannot be held to be binding upon the reversioner. The learned District Judge has not come to any finding that the lease was a bona fide one. He has not even noticed that even in Arjun Chandra Mandal's case, in order that the lease will have a binding effect upon the reversioner, it must be bona fide. So, the learned District Judge was not justified in relying on the decision in Arjun Chandra Mandal's case in dismissing the plaintiff's suit. It is argued by Mr. Mukul Gopal Mukherjee, learned Advocate appearing on behalf of the respondent, that the defendant having been paying rents to the State of West Bengal, he became a direct tenant under the State after the vesting of estates under the West Bengal Estates Acquisition Act, 1953, and, as such, he cannot be evicted. I am unable to accept this contention. The lease not being binding upon the reversioner; it was voidable at the instance of the reversioner, who is the plaintiff. The plaintiff had no right to get possession during the lifetime of the widow. The plaintiff has sought to avoid the lease by the institution of the suit and upon such institution, the lease stands null and void. The lessee, namely, the defendant held the property as a representative of the widow Maku Majhani and was bound to deliver up the property to the plaintiff on the death of the widow. The learned District Judge was not justified in dismissing the suit.

6. For the reasons aforesaid, the judgment and decree of the learned District Judge are set aside and those of the learned Munsif are restored.

7. This appeal is allowed. But, in view of the facts and circumstances of this case, there will be no order as to costs.


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