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Barboni Coal Concern Ltd. Vs. Paricharak and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1930Cal526
AppellantBarboni Coal Concern Ltd.
RespondentParicharak and ors.
Cases ReferredLachmi Narayan Agarwalla v. Braja Mohun Singh A.I.R.
Excerpt:
- .....is now an admitted fact that the interest of the said family deity does not extend beyond an eight annas share. prior to the lease there were two litigations, one commenced in 1884 and the other in 1895. the former was a suit for rent instituted by the predecessor of the lessors against certain other persons in respect of some lands of the mauza on the allegation that the latter or their predecessors had been possessing an eight annas share of the lands under a settlement from him. the defendants in that suit denied that the relationship of landlord and tenant ever subsisted between the said plaintiff and themselves, and asserted that they were in possession of eight annas share of the mouzah as sbebaits of their own family deity of the same name, viz., gopinath jiu thakur. the suit.....
Judgment:

1. The suit out of which this appeal has arisen was instituted by the plaintiff for recovery of royalty, interest and cesses from the defendant from 14th April 1918 to 13th April 1924 under a mining lease executed in favour of the predecessor of the latter on the 24th May 1901. The lease was granted by four persons as sbebaits and servitors of a deity Gopinafch Jiu Thakur. The plaintiff is one of them and claimed a fourth share of the dues making the other three cosharers pro-forma defendants in the suit. The suit has been decreed for the amount claimed with a very small deduction. The principal defendants are the appellants.

2. To deal with the contentions that have been urged in this appeal a few facts have to be stated. The deity Gopinath Jiu Thakur is the family deity of the plaintiff and the pro-forma defendants. They jointly gave a lease and in the kabuliyat thereof the following recitals appear : the translation of the recital as it appears in the paper-book is not quite happy, and a more accurate translation of it is to be found in the judgment of the Privy Council in a litigation between the lessors and the original lessee which is reported in Trioomdas Cooveri v. Gopinathji [1917] 44 Cal. 759.

On a proposal being made to take a settlement of the rights of your family deity in this mouzah for the purpose of raising coal from below the surface of the said mouzah by making pits, you for the benefit of your family god and with the object of increasing the income of the debtutter property, are making a settlement with me of the right and interest in the mouzah to the extent by your family deity.

3. Immediately before this there was another recital and on this a good deal of stress has been laid on behalf of the appellants that the mouzah is the rent free property of the said family god. Two of the paragraphs embodying the conditions of the lease have also to be referred to, namely para. 1 and para 17; in the former certain rates of commission are mentioned as being payable for and to the extent of the interest of the said family god, and in the latter it was declared that the lessees are the sole heirs of three persons their ancestors. In the schedule to the kabuliyat the whole mouza and no particular share or portion of it was described. The lease therefor proceeded upon the assumption that the family god Gopinath Jiu Thakur was the 16 annas owner of the mouza but it is now an admitted fact that the interest of the said family deity does not extend beyond an eight annas share. Prior to the lease there were two litigations, one commenced in 1884 and the other in 1895. The former was a suit for rent instituted by the predecessor of the lessors against certain other persons in respect of some lands of the mauza on the allegation that the latter or their predecessors had been possessing an eight annas share of the lands under a settlement from him. The defendants in that suit denied that the relationship of landlord and tenant ever subsisted between the said plaintiff and themselves, and asserted that they were in possession of eight annas share of the mouzah as sbebaits of their own family deity of the same name, viz., Gopinath Jiu Thakur. The suit succeeded in the trial Court but was dismissed on appeal. The other litigation was a suit for declaration of title and for other reliefs instituted by the successful defendants in the rent suit against the said four lessors on the allegation that Gopinath Jiu Thakur the family god of the said successful party was the owner of an eight annas share of the mouza and that they are entitled to the said share as. shebaits. The said lessors were worsted in this litigation both in the trial Court and in the appellate Court and their opponents were successful. In one of the paragraphs, viz., para. 5 of the kabuliyat, which forms the subject-matter of the present suit and to some of the terms whereof reference has already been made, it is stated:

I have looked into the suits No. 21 of 1884 in the Court of the Munsif and No. 123 of 1884 in the Court of the Judge concerning your right to the said mouza Manoherbahai.

4. These two numbers are those of the suit and the appeal in the former of the two litigations. There is, however, no reference to the other litigation namely to the title suit aforesaid. In 1908 the original lessee Bhoja was sued under the lease for royalty etc. for a certain period by three of the lessors as shebaits and servitors of the god Gopinath Jiu with the fourth lessor as pro forma defendant and this litigation went up to the Judicial 'Committee whose judgment therein has already been referred to. In 1908 Bhoja's interest under the lease was transferred to Messrs. Laik Banerjee and Co. who took three leases from the successful party in the aforesaid title suit, viz, the eight annas sharers as shebaits of their own family god Gopinath Jiu Thakur. This 8 annas share they obtained under the following three leases of a 2 annas share by a lease dated 24th January 1908, a five annas share by a lease dated 10th August 1908, and a one anna share by a lease dated 5th September 1908. Laik Banerjee and Co. became insolvents and the official assignee in whom their interests vested transferred the leasehold to the defendants in the present suit. In 1914 the defendants further purchased the interest of one Radha Ballav Mukerji who had obtained some interest in the mouza from the supperior landlord the Raja of Pachette and later on in 1918 they obtained a further lease from the Raja of Pachete himself.

5. The appellants' first contention is that the suit instituted as it was by one of the shebaits and for his share of the rent only was not maintainable. They rely in this behalf upon the decision of this Court in the case of Narendra Nath Kumar v. Atul Chandra Banerji [1918] 41 I.C. 837 in which it was held on a consideration of various authorities bearing upon the point that where the administration of the trust is vested in several trustees they all form, as it were but one collective trustee and they must exercise all the powers of their office in their joint capacity. The learned Judges appear to have upheld the view of the lower Court in that case that

the shebaits are not cosharers but co-worshippers and any family arrangement at which they may have arrived amongst themselves cannot entitle them to treat the debutter property as personal property and to sue personally for their share of the rent payable to the idol.

6. The case itself was one in which the plaint was framed under Section 148-A, Ben. Ten. Act, for recovery of a share of the rent payable to the deity on the allegation that the plaintiffs therein were interested to the extent of that share. The nature of the dedication in that case does not appear but the decision proceeded on the footing that it was:

impossible to maintain the position that they (i.e. the plaintiffs) have an interest in the land to the extent of one-fourth share and that on that basis they are entitled to collect one-fourth share of the rent from the tenant defendants.

7. Now it cannot be disputed that there may be dedication of a partial, incomplete or qualified character. In the case Maharaja Jagadindra Nath Roy Bahadur v. Rani Hemanta Kumari [1905] 32 Cal. 129 Arthur Wilson observed:

There is no doubt that an idol may be regarded as a juridicial person capable as such of holding property though it is only in an ideal sense that property is so held, And probably this is the true legal view when the dedication is of the completest kind known to law. But there may be religious dedications of a less complete character. The case of Sonatan By sack v. Sreemutty Juggat Soondree Dossee [1859] 8 M.I.A. 66 and Ashutosh Dutt v. Doorga Charan Chatterjee [1880] 5 Cal. 438 are instances of less complete dedications in which notwithstanding a religious dedication property descends (and descends beneficially) to heirs, subject to a trust or charge for the purpose of religion. Their Lordships desire to speak with caution, but it seems possible that there may be other cases of partial or qualified dedication not quite so simple as those to which reference has been made.

8. In cases in which the shebaits have beneficial interests in the dedicated property and such interests descend beneficially and the several shebaits are in separate enjoyment of their respective interests in severalty it is difficult to see why the principles applicable to cases of complete dedication should necessarily be applied. Not to travel beyond the record of this case, we find that the defendants' predecessors Laik Banerjee and Co., took three separate leases of two annas, five annas and one anna of the eight annas share of the rival deity Gopinath Jiu Thakur. The suit of 1908 which went up to the Judicial Committee and to the judgment, in which case reference has already been made, three of these shebaits were the plaintiffs with the fourth one as the pro forma defendant. The suit was for recovery of the royalty due to the extent of the entire share of the family deity minus Rs. 4,000 which the said fourth brother had realized on account of his share. Along with the present suit was tried another suit which one of the other lessors had instituted against the defendants for his one-fourth share of the rent under the lease and the defendants have now paid him off separately. The collections made by the four lessors have not always been joint ; there is evidence of this fact on the present record and it is also expressly stated to have been so in the judgment of the Judicial Committee already cited. It is true that in the kabuliyat the statement was made that the transaction was:

for the benefit of the family god and with the object of increasing the income of the de-butter property.

9. But this statement in attributable to the notion which unfortunately prevails amongst shebaits that their own interests and those of the deity are always identical. No legal inference follows from such a statement. Our attention has been drawn to the deposition (Ex. H-1) of Gokula Nanda Thakur in the suit of 1908 in which he stated that the income of the mouzah cannot be spent for the personal purposes of the shebaits and the whole income has to be credited to the debutter fund and further that neither the properties nor the profits of the debutter had been divided amongst the shebaits. The present plaintiff was a co-plaintiff with Gokula Nanda Thakur in the suit of 1908, and the admissions made by the latter in that suit are admissible against the present plaintiff, but they have never been put to him to give an opportunity of explaining them. It has been proved in the case that the present debutter was always treated as one of those less perfect dedications in which the shebaits have treated the property as secular in all respects but subject to a religious charge. We are of opinion therefore that the suit as based on the contract embodied in the lease was maintainable, and as the other lessors have not disputed the plaintiffs' four annas share as shebait, he cannot fail on this first contention of the appellants.

10. The second ground urged is that the plaintiff cannot recover on the footing that his family god has 16 annas title. This ground has been sought to be supported on two reasons : first, because the defect in the title was not disclosed, and second because, in consequence of dispossession by title paramount the defendants and their predecessors had to attorn to others. As to non-disclosure of title the point urged is that nothing was said at the - time of the lease about the title suit of 1885 which had conclusively established that the title of the plaintiffs' family god Gopinath Jiu Thakur did not extend beyond an eight annas share. The evidence and circumstances bearing on this question have been placed before us in great detail.

11. The suit in 1884 and the appeal which arose out of it were specifically referred to in para. 5 of the kabuliyat. In Ex. F-1, the judgment of the trial Court in that suit, is set out the claim of the other eight annas sharers and in Ex. E-4, the judgment of the appellate Court, the claim is set out in great detail together with the evidence that supported it. The specific mention of this litigation in the kabuliyat coupled with the recital there-in to which reference has already been made leaves no doubt in our minds that the defendants' predecessor Bhoja was fully apprised of the fact that the title of the plaintiffs' family god could not with safety be taken as extending beyond eight annas. The mention of litigation in the kabuliyat makes all supposition of concealment impossible. We also think that the papers of the suit of 1895 were made over to Bhoja as the plaintiff alleges. The omission of any reference to the suit of 1895 was, in our opinion, due to the fact that Bhoja was not willing to have documents in which an eight annas title of the lessors would be conclusively shown but rather to leave the extent of their title in a doubtful state so that he might try his luck with the remaining eight annas holders. It is admitted that he obtained possession under the lease and it seems that that was all that he wanted then. The mention of the suit of 1884 was on the other hand necessary and was considered sufficient to protect the lessors from a charge of fraud and concealment that Bhoja might subsequently bring forward. We hold that the lease was taken by Bhoja with knowledge of the real extent of the lessor's title. In this view of the matter the second reason on which the appellants' contention is based need not be considered.

12. The third contention urged on behalf of the appellant is that the lease having been stamped under Section 26, Stamp Act, the plaintiff was not entitled to recover anything in excess of the amount for which the stamp was paid. This objection was not taken in the Court below and as pointed out by the Judicial Committee in the case of Lachmi Narayan Agarwalla v. Braja Mohun Singh A.I.R. 1924 P.C. 221, is not an objection, even though tenable, on which the decree should be set aside; if there is no proper stamp on the document it may be put on afterwards on payment of a penalty, and the instrument then becomes effective under Section 35(a). The ground, therefore, should not be upheld. The result is that in our judgment the appeal fails and it is accordingly dismissed with costs.

13. The objection that the full amount of the plaintiffs' claim is not claimable in view of the stamp which the instrument of lease bears was not taken either in the Court below, or even in the memorandum of appeal to this Court. It was subsequently put forward by way of an additional ground, which, however, was permitted to be urged. Assuming that it would be right for us to move in this matter now, we find from the kabuliyat that the lease does not purport to be a lease in perpetuity, but is a lease for which no term is fixed. The lease therefore is one under Article 35, Clause (a), Sub-clause (iv), Schedule 1, Stamp Act, and inasmuch as it was on a stamp of Rs. 471, a royalty far in excess of what has been claimed could be claimed under the lease. There is no substance in the objection and it is accordingly overruled.


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