1. The subject-matter of the suit out of which this appeal has arisen is a house which was originally the property of two brothers each of whom dedicated his own share in the house by a separate document to the plaintiff deity. The shebait in respect of one share was one Madhab and the shebait in respect of the other share was one Guru Charan. In 1870 (1276-1277 B. S.) Madhab by two documents Ex. 0/10 and C/11 granted what purported to be a permanent lease in respect of an eight-anna share in the house to the predecessor of the defendants. That year the remaining eight-anna share in the house was sold in execution of a decree against Guru Charan, the other shebait and that interest, such as it may have been, came also to be acquired by the predecessor of the defendants. The entire interest of the defendants' predecessor was comprised in a debutter of the defendant deity of whom the other defendants are the present shebaits. In 1900 (1307 B. S.) the shebaibi right of the plaintiff deity came to be vested in its entirety in Madhab, whose successors are the plaintiff shebaits.
2. The suit out of which this appeal arises was instituted by the shebaits of the plaintiff deity against the defendant deity, and its shebaifcs, for a declaration of the plaintiff deity's. title to the entire house, a declaration that the leases Exs. C/10 and C/11 were not binding on the plaintiff deity, and for recovery of rent against the defendant deity and its shebaits, and against the defendants shebaits in their personal capacity. For these reliefs, the plaintiffs obtained a decree which was affirmed on appeal. The argument on behalf of the appellants in the appeal before us is in two branches, which relate respectively to the two shares of the house. As to the share which was the subject-matter of the demise contained in the documents 0/10 and C/11, it is contended that Madhab thereby created a permanent lease which was binding upon the plaintiff deity. As regards the other share, it is urged that even if the plaintiff deity's interest could not lawfully be sold in execution of the decree against Guru Charan, the auction sale was followed by a succession of transfers which terminated in a purchase by the defendants' predecessor, upon the basis of which he actually entered into possession in 1879. Such possession was independent of any demise. There was never an attornment and no rent was ever paid. The defendants' title has therefore been perfected by adverse possession. As against this argument, the short rejoinder on behalf of the respondents is that the findings are concurrent findings of fact. This contention calls for examination. As regards the portion of the property which was demised by Madhab, the Courts below have based their conclusions upon an examination of the leases Exs. C/10 and C/11, and upon a decree Ex. 9/b. The legal effect of certain 'recitals in Exs. C/10 and C/11 and of Ex. 9/b are questions material to the findings, and these are questions of law. Exs. C/10 and C/11 purport to create a kaimi or permanent lease and contain clear recitals of necessity in regard to the sheba, and in regard also to the preservation and repair of the demised property. The Courts below have held that the effect of these documents is nullified by a statement in Ex. 9/b, an ex parte decree for rent which Madhab obtained against the grantees of the leases. Incidentally the lower Appellate Court is in error in thinking that the statement is a part of the declaration granted by the decree. The statement in question is a recital taken apparently from the plaint, is merely descriptive of the plaintiffs' case, and is not contained in the operative portion of the decree. It is in these terms:
No shebait bad a right to grant permanent lease in respect of 8 annas share...nor had any-right to transfer it. Yet the mother of defendant 12 and mother-in-law of defendant 11 Goureemani Dassya took a permanent lease...by a registered patta dated 17th Baisakh 1277 from this shebait though she knew that the shebait was powerless to grant such lease.
3. In our judgment the Courts below were wrong in holding that this statement could have the effect of neutralizing the recitals in Exs. C/10 and C/ll. We are left there-fore with the recitals in Exs. C/10 and C/11 which came into existence 64 years ago. The lower Appellate Court has held that the defendants are bound to prove the fact of legal necessity, and this they have not done. In Banga Chandra Dhur Biswas v. Jagat Kishore (1916) 3 AIR PC 110 the evidentiary value of recitals in ancient documents was considered by their Lordships of the Judicial Committee, who expressed themselves in the following terms:
If the deeds were challenged at the time or near the date of their execution, so that independent evidence would be available, the recitals would deserve but slight consideration, and certainly should not be accepted as proof of the facts. But, as time goes by and all the original parties to the transaction and all those who could have given evidence on the relevant points have grown old or passed away, a recital consistent with the probability and circumstances of the case assumes. greater importance and cannot lightly be set aside; for it should be remembered that the actual proof) of the necessity which justified the deed is not essential to establish its validity. It is only necessary that representation should have been made to the purchaser that such necessity existed, and that he should have acted honestly and made pro-, per enquiry to satisfy himself of its truth. The recital is clear evidence of the representation, and if the circumstances are such as to justify a reasonable belief that an inquiry has become impossible, the recital, coupled with such circumstances, would be sufficient evidence to support the deed To hold otherwise, would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place, would ultimately be incapable of justification merely owing to the passage of time.
4. The lower Appellate Court has referred to the defendants' contention that certain rent receipts, Ex. B series, granted by. Madhab and his heirs, support the theory of a permanent tenancy but has neglected to deal with these documents or with Ex, A, a rent receipt bearing date as late as. 1926, which expressly and unambiguously refers to the kaimi or permanent pattas in respect of the 8 annas share. In our judgment, the findings of the Courts below in regard to this share or portion of the-property cannot be supported, because they are based upon a failure to appreciate the true legal effect of recitals of necessity in ancient documents Exs. C/10 and C/11 and omission to consider other documents Ex. A and Ex. B of recent origin, consistent, with those recitals. These documents taken together unmistakably point to the execution of a permanent lease in respect of the share or portion of the house to which they relate. As regards the other share or portion of the house, the defence of adverse possession was not raised in the Courts, below, but is taken for the first time in the appeal before us. The trial Court in its-judgment says:
No evidence was adduced to prove that the defendants claim maliki right with respect to this half, on the other hand the defendant who deposed said that they claim the 16 annas house as tenants under the plaintiffs.
5. The reference is to the deposition of defendant 1 which contains the following statements:
We defendants claim kaimi mokarari right in the house .... We claim the 16 annas bari in suit as under kaimi mokarari under the plaintiffs .... The plaintiffs are entitled to Rs. 37-12-0 as rent for the whole house from us of which Ex. A is the dakhila. We never paid two separate rents of Rs. 3 and Rs. 4 for two parts of the house .... I knew Madhab Sur; he took rent from us on coining to our house. I saw him last about 30 years ago. He took rent for the whole house.
6. In regard to the plaintiffs' claim with respect to this portion of the property the conclusion arrived at by the Courts below is based on concurrent findings of fact which may not be disturbed. The result is that the appeal must be allowed in part. The decree will be modified to the extent of declaring that the pattas Exs. C/10 and C/11 are binding on the plaintiff deity and its shebaits. As regards the rent in respect of the share of the house which was the subject-matter of the demise in the pattas C/10 and C/11 it follows that the rent for which the defendants are liable as regards this portion of the house is the rent reserved by those documents. The case is therefore remanded to the Appellate Court for enquiry on this question, and for the pass-ing of a decree on this basis. There is no order as to costs.
7. I agree. A preliminary point was raised by the plaintiff-respondent on the ground that as the appeal had abated as against the heirs of the deceased respondent 7, the whole appeal was incompetent. The heirs of this respondent have in the meantime applied to be added as parties so that all the shebaits representing the deity are now on the record. Respondent 7 was made a party as pro forma defendant and took no part in contesting the suit and it seems clear that when the decree is against the deity an appeal may be brought by any of the shebaits. It does not appear that the representatives of respondent 7 have any claim against the appellants since they have asked to be added as parties since the abatement and therefore it would be absurd to hold that the appeal should fail because the appeal was allowed to abate as against them. The preliminary point must therefore fail. The contention of the plaintiffs, respondents is rejected.