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Kamini Debi Vs. Pramatha Nath Mookerjee - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal33
AppellantKamini Debi
RespondentPramatha Nath Mookerjee
Cases ReferredMrinalini Dasi v. Abinash Chandra Butt
Excerpt:
land acquisition - debuttar--shebait--land acquisition act (i of 1894), section 32, sub-section (1), clauses (i) and (ii)--compensation--whether shebait is entitled to withdraw compensation money for necessary repairs of debuttar property--jurisdiction--practice. - mookerjee and caspersz, jj.1. the substantial quest ion of law, which calls for our decision in this rule, relates to the true construction of section 32 of the land acquisition act of 1894, and is apparently of first impression, in so far, at any rate, as the courts of this country are concerned. there is no controversy as to the circumstances under which the order of the court below now under consideration, was made. the petitioner before us is the present shebait of an idol, gopaljiu, to whom considerable properties were dedicated by her father, ram kamal mukherjee, under a testamentary disposition made on the 4th february, 1845. ever since the foundation of the endowment there has been litigation relating to the properties, the most recent instance of which will be found reported in.....
Judgment:

Mookerjee and Caspersz, JJ.

1. The substantial quest ion of law, which calls for our decision in this Rule, relates to the true construction of Section 32 of the Land Acquisition Act of 1894, and is apparently of first impression, in so far, at any rate, as the Courts of this country are concerned. There is no controversy as to the circumstances under which the order of the Court below now under consideration, was made. The petitioner before us is the present shebait of an idol, Gopaljiu, to whom considerable properties were dedicated by her father, Ram Kamal Mukherjee, under a testamentary disposition made on the 4th February, 1845. Ever since the foundation of the endowment there has been litigation relating to the properties, the most recent instance of which will be found reported in the case of Aghore Nath Mukerjee v. Srimati Kamini Debi (1909) 11 C.L.J. 461. By this decision given on the 15th December, 1909, the right of the petitioner to the office of shebait was declared.

2. It appears that before the petitioner had been appointed shebait, a portion of the debuttar estate had been acquired, under the Land Acquisition Act, by the Government at the instance of the Commissioners of the Port of Calcutta. The sum awarded as compensation was invested in Government securities of the nominal value of Rs. 32,500. On the 24th September, 1910, the petitioner applied to the Land Acquisition Judge for an order to pay her Rs. 24,000 oat of the compensation money, to enable her to improve the debuttar property, and execute necessary repairs to the buildings, in one of which the idol is located. This application was opposed by representatives of the founder, who have no present interest in the endowment, but may possibly, at some future time, succeed to the office of shebait. The Land Acquisition Judge dismissed the application on the 18th November without any enquiry into the merits. The learned Judge held that, as the petitioner was not absolutely entitled to the compensation money in her capacity as shebait, she could not claim to draw any portion of the invested funds; and that, in. any event, the money ought not to be placed at her disposal, because the Court had no machinery to exercise any effective control over the expenditure.

3. The petitioner obtained this Rule on the 38th November, 1910, for reversal of the order in question, on the ground that the learned Judge had erroneously refused, to exercise the jurisdiction, vested in. him. by law. In support of the Rule it has been contended that the terms of Section 32 are comprehensive enough to authorise the Land Acquisition Judge to allow the petitioner to spend a portion of the compensation money with, a view to effect necessary repairs to the debuttar property; this position, it; has been, maintained, is established by the cases of Exp. Rector of Grimoldby (1876) 2 Ch. D. 225. In re Aldred's Estate (1873) L.R. 17 Eq. 156, and Exp. Rector of St. Botolph (1894) 3 Ch. D. 544. In answer to this contention it has been argued by the learned vakil for the opposite party that repairs and permanent improvements do not fall within Clause (1) or Clause (2) of Section 32 of the Land Acquisition Act, and in support of this view reference has been made to the cases of Drake v. Trefusis (1875) L.R. 10 Ch. App. 364. In re Leigh's Estate (1871) L.R. Ch. 6 App. 887, In re Nether Stowey Vicarage (1873) L.R. 17 Eq. 156, Brunskill v. Caird (1873) L.R. 16 Eq. 493 Exp. Rector of Newton Heath (1896) 44 W.R. 645, In re Venour's Settled Estate (1876) 2 Ch. D. 526, Vine v. Raleigh (1891) 2 Ch. 13 and In re Jerard's Settled Estate (1893) 3 Ch. 252. The question raised is of considerable importance, and by no means free from difficulty; the solution of it must obviously depend upon the true construction of the statutory provisions on the subject.

4. Section 32 of the Land Acquisition Act provides for the investment of compensation money deposited in respect of lands belonging to persons incompetent to alienate the same. The section lays down that when, the money has been invested in Government or other approved securities, the Court shall direct the payment of the interest or other proceeds arising from such investment to the person or persons who would, for the lime being, have been entitled to the possession of the said land, and such moneys shall remain so deposited and invested until the same be applied, (i) in the purchase of such, other lands as aforesaid, that is, other lands to be held under the like title and conditions of ownership as the land in respect of which the compensation money shall have been deposited was held, or (ii) in payment to any person or persons becoming absolutely entitled thereto.

5. Two questions manifestly arise upon the construction of this section, namely, first, whether the land acquired belonged to a person who had no power to alienate the same, in other words, whether, when debuttar land has been acquired, the provisions of the section for investment of the compensation money may at all be brought into operation; and, secondly, if the provisions of the section are applicable, whether the shebait is entitled to withdraw any portion of the invested funds and apply the same to effect necessary repairs to the remainder of the debuttar estate.

6. In so far as the first of these questions is concerned, we are inclined, to the view that land dedicated for religious and charitable purposes is land which may properly be described as belonging to a person who has no power to alienate the same. No doubt, in the case of land dedicated to an idol, the idol may be deemed as the person to whom the land belongs, but, as was pointed out by their Lordships of the Judicial Committee in Jagadindra Nath Roy v. Hemanta Kutnari Debi (1904) I.L.R. 32 Calc. 129 : L.R. 31 I.A. 203 although there is no doubt that an idol may be regarded as a juridical person capable as such of holding property, it is only in an ideal sense that property is so held, and assuming the religious dedication, to have been of the strictest character, the fact remains that the possession and management of the dedicated property belong to the shebait. This carries with it the right to bring whatever suits are necessary for the protection of the property, and every such, right of suit is vested in the shebait, not in the idol. Without any undue violence, therefore, to the language used by the Legislature in Section 32, Sub-section (1), we may hold that when land dedicated to an idol or to religions and. charitable purposes generally has been acquired, it is land belonging to the shebait or trustee who had no power to alienate the same. We are further of opinion that no difficulty is created by the expression 'who has no power to alienate the same,' because, although the shebait may, in special cases, have the power to alienate a portion of the debuttar estate, he is ordinarily incompetent to deal with the corpus of the dedicated property. Consequently when such dedicated property is acquired under the Land. Acquisition Act, the presumption is that it belonged to a person, not competent to alienate it; and therefore the provisions of Section 32 may be brought into operation : see Mrinalini Dasi v. Abinash Chandra Dutt (1910) 11 C.L.J. 533 (where Section 32 of the Land Acquisition Act was held to apply to cases in which land in possession of a Hindu widow as heiress to her husband is acquired', although in certain contingencies a Hindu widow may be competent to alienate absolutely a part of the estate inherited by her from her husband). We mast consequently hold that in the case before us the compensation money was rightly invested, under Section 32 of the Land Acquisition Act, and this is the settled practice of the Land Acquisition Court.

7. In so far as the second question is concerned, the answer depends upon the effect to be attributed to Clauses (i) and (ii) of Section 32, Sub-section (1) of the Land Acquisition Act. The learned vakil for the petitioner has contended that the terms of Clause (i) are comprehensive enough to justify the application of a portion of the compensation money to effect repairs absolutely essential, for the preservation of the remainder of the property. It may be observed, that the clause relied upon speaks of the application of the compensation, money in the purchase of other lands, and, prima facie, it is not easy to see how money, applied for the purpose of repairs, however necessary they may be, can. be deemed to be money applied for the purchase of land. But the learned vakil for the petitioner has argued, that the clause in question is based on Section 69 of the Lands Clauses Consolidation Act, 1845, and. ought to be interpreted in the same manner as the corresponding section of the English statute. This, in our opinion, is a legitimate mode of interpretation of statutory provisions, because, as observed by Blackburn, J., in Mersey Docks v. Cameron (1865) 11 H.L.C. 443, 480 where an Act of Parliament has received a judicial construction putting a certain meaning on its words, and the Legislature in a subsequent Act in pari materia uses the same words, there is a presumption that the Legislature used those words intending to express the meaning which it knew had been put upon the same words before, and unless there is something to rebut that presumption, the Act should be so construed, even if the words were such that they might originally have been construed otherwise. In other words, as James, L.J., put it in Exp. Campbell (1870) L.R. 5 Ch. App. 703, where once certain, words in an. Act of Parliament have received, a judicial construction in one of the superior Courts and the Legislature have repeated them, without any alteration, in a subsequent statute in pari materia, the Legislature must be taken to have used them according to the meaning which, a Court of competent jurisdiction has given them. To the same effect is the observation of Sir John Jervis, C.J., in Ruckmaboye v. Lulloobhoy Mottichund (1852) 5 Moo. I.A. 234, 250 that when words in a statute have been judicially construed to have a certain meaning, and have been adopted by the Legislature in a subsequent statute in pari materia, they must be construed according to the sense in which they have been previously used, although that sense may vary from the strict literal meaning of them. Now, in the case before us, Section 69 of the Lands Clauses Consolidation Act, 1845, upon which Section 32 of the Land Acquisition. Act is modelled, provides--we need only quote so much of the section as is relevant to our present purpose--as follows:

If the compensation which shall be payable in respect of any lands or any interest therein taken by the promoters of the undertaking from any person having a partial or qualified interest only in such lands and not entitled to sell or convey the same, the same shall be paid into the Bank in the name and with the privity of the Accountant-General of the Court of Chancery; and such moneys shall remain so deposited, until the same be applied to some one or more of the following purposes, that is to say, (i) in the purchase or redemption of the land tax or the discharge of any debt or incumbrance affecting the land; or (ii) in the purchase of other lands to the conveyed, limited and settled upon the like uses and purposes, and in the same manner as the lands in respect of which such money shall have been paid stood settled; or (iii) if such money shall he paid in respect of any buildings, in removing or replacing such buildings, or substituting others in their stead; or (iv) in payment to any party becoming absolutely entitled to such money.

8. It will be observed that the second clause in this provision corresponds with the first chaise in Section 32 of the Land Acquisition Act. Now, with reference to this clause, it has been held in numerous decisions in England that the Court may sanction the application of the compensation money to effect repairs and improvements upon the remainder of the trust property. But the learned vakil for the opposite party has contended that the decisions in England, are by no means uniform and that no rule can be deduced from, them to be applied, in the construction of our statute. It may be conceded, that there has been . some divergence, of judicial opinion upon this point in England, and that the cases are by no means easy to reconcile. But upon an examination of the authorities, to which we shall presently refer, the following rules will be found to be deducible:

(i) Ordinary repairs are not payable out of capital monies; they must be borne out of income; but the Court may authorise an expenditure in the nature of repairs, for the preservation of the trust estate, in cases amounting to salvage. The cases of In re Leigh's Estate (1871) L.R. 6 Ch. Ap. 887 Clarke v. Thornton (1887) 35 Ch. D. 307 Exp. Barrett (1850) 19 L.J. Ch. 415 In re Venour's Settled Estates (1876) 2 Ch. D. 522 Drake v. Trefusis (1875) L.R. 10 Ch. App. 364 In re Vicar of Queen's Camel (1893) 11 W.R. (Eng.) 503 and In re Belfast Water Commissioners (1870) I.R. 5 Eq. 63 afford illustrations of the first branch of this .Rule; see also In re Montagu (1897) 2 Ch. 8 and In re Partington (1902) 1 Ch. 711. As an illustration of the second branch of the rule, reference may be made to In re Aldred's Estate (1882) 21 Ch. D. 228 where the proposed expenditure which was sanctioned was found necessary to the preservation of the trust estate : see also Exp. Rector of Grimoldby (1875) 2 Ch. D. 225.

(ii) Where there is a right of re-entry or a statutory power of sale, if repairs are not done, the compensation money deposited in Court may, with its sanction, be applied for the purpose of repairs. As illustrations, reference may be made to In re Davie's Estate (1858) 3 De G. & J. 144 and In re Barney (1894) 3 Ch. 562, where, if repairs had not been effected, action would have been taken by the authorities under the Metropolitan Building Act and the Public Health Acts, respectively. In the former of these cases which, appears to be one of the earliest in which a question arose as to the true interpretation of Section 69 of the Lands Clauses Consolidation Act, 1845, Knight Bruce, L.J. and Turner, L.J., held that whether the case was or was not within the words of the Act of Parliament, it was plainly within its equity and spirit, and reference was made to an earlier case decided in the same manner by Lord Eldon.

(iii) The purchase money of glebe lands or ecclesiastical lands may be applied in improvements and in the purchase of other lands. Illustrations of this rule may be found in Exp. St. Botolph (1894) 3 Ch. 544 and Brunskill v. Caird (1873) L.R. 16 Eq. 493 while In re Nether Stowey Vicarage (1873) L.R. 17 Eq. 156 Exp. Hartington (1875) 32 L.J. 243 : 23 W.R. 484 are cases on the other side of the line.

(iv) The Court may order money in deposit representing the compensation for a church-yard to be applied towards the repair of the chancel or the chapel, and even to pay the Parliamentary costs of the Rector. An illustration of this rule will be found in Exp. Pennington (1901) 48 L.J. 808 : 17 T.L.R. 614.

(v) Where rebuilding is necessitated by the dilapidated state of the buildings, the money in Court will not be applied to such rebuilding when the costs have already been met by the Rector: Williams v. Aylesbury Railway Co. (1874) L.R. 9 Ch. App. 684 Exp. Rector of Newton Heath (1896) 44 W.R. 645, and In re Stock's Estate (1880) 42 L.T. 46; on the other hand, Mathews v. Wilson (1883) W.N. 111 is apparently an authority for the contrary view. The case of Vine v. Raleigh (1891) 2 Ch. 13 merely exemplifies the distinction between a trust to purchase land and a trust to effect repairs, while the cases of In re Gerard's Settled Estate (1893) 3 Ch. 252 and In re Thomas (1900) 1 Ch. 319 which turned upon the construction of the Settled Land Act, 1890, have no direct application to the case before us.

9. The first and fourth, of these rules show that the Court has repeatedly allowed, part of the deposit money to be applied, for repairs of the trust estate, specially when, but for such repairs, statutory action might be taken against the trustee. That this position may be supported in this country on grounds of justice, equity, and. good, conscience is manifest. It is for the benefit of the community that the land is taken, for public purposes. The principle on. which this power is exercised was thus stated by Grotius in 1625 (De Jure Belli et. Pacis, Lib. IIIC, 20, Sector 7, Eng. Tr. 1738, p. 697; Whewell, p. 417): 'The property of subjects is under the eminent domain of the State, so that the State or he who acts for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that when this is done, the State is bound to make, good the loss to those who lose their property.' Hence, as such power is exercised, for the benefit of the public, interference with, private right need not exceed the limits essential for that purpose and that purpose alone. Consequently, the Legislature has provided that when land belonging to a person with a qualified power of alienation has been acquired under the statute, the money should be held in deposit so that the ultimate beneficiaries may not be prejudiced. Money can be shuffled out of sight as land can not be. So long, therefore, as the property continues in the shape of land, the beneficiaries are amply protected against unauthorised alienation by the trustee; but if when the laud has been converted into money, the funds are placed at the absolute disposal of the trustee, the beneficiaries may be left without adequate remedy, if the fund is improperly applied by the trustee. Consequently, as pointed, out by this Court in the case of Mrinalini Dasi v. Abinash Chandra Dutt (1910) 11 C.L.J. 533 even when land has been converted into money by reason of proceedings under the Land Acquisition Act, the money ought to be regarded, as still impressed, with the character of real estate: Kelland v. Fulford (1877) 6 Ch. D. 491 Exp. Walker (1853) 1 Drew. 503 In re Harrop's Estate (1857) 3 Drew. 726 Midland Counties Ry. Co. v. Oswin (1844) 1 Coll. 80 : 13 L.J. Ch. 209 and In re East Lincolnshire Ry. Co. (1851) 1 Sim. N.S. 260; as to the last of these cases, see In re Tugnell (1884) 27 Ch. D. 309. In other words, the position of the parties is by legal, fiction deemed to be the same as if the land had never been converted into money; their rights and obligations are not affected by the transformation. But if this doctrine is maintained, for the protection of the beneficiaries, it ought not also to be applied to fetter the trustee needlessly.

10. This rule is recognised in other systems of jurisprudence as well, founded on broad principles of justice, equity and good conscience. Thus, in the case of In re Board, of Street Opening (1895) 35 N.Y. Sup. 409 : 89 Hun. 525, the Supreme Court of New York held, that where an. award has been made for land of a lunatic taken for public purposes, the compensation money is to be treated as real estate for all purposes, so that the Committee would not be entitled to absolute possession; it would be retained in Court, to be applied in the same manner and for the same purposes as the real estate might have been, applied if it had never been converted, into money: see also Exp. Van Vorst (1840) 2 N.J. Eq. 292, Brown v. Rome Ry. Co. (1888) 86 Ala. 206 : 5 South 195 Peavey v. Wolfborough (1858) 37 N.H. 286. The same question was raised in the case of Kearney v. Kean (1879) 3 Cana. Sup. Ct. Rep. 332 where the land acquired belonged to a person, who had not an absolute power of disposition over it. The Supreme Court held that the fund must still be considered as land and must be retained in Court to be dealt with in the same manner as the land could have been treated if there had been no conversion.

11. In the case before us, there is no room for controversy that if the land had never been converted into money it would have been competent to the shebait to alienate a portion, of it for repairs essential for the preservation of the debuttar estate: Deva Siiamani v. Palaniyappa (1910) 20 Mad. L.J. 969. It would therefore not be right to place such a construction upon the provisions of the Land Acquisition Act as would paralyse the management of the endowment. The cardinal principle is that the endowment is not to be prejudiced by reason, of the transformation of the land into money; but such prejudice may result not only if the fund placed absolutely at the disposal of the shebait is misapplied by him, but also if the fund, treated as unalterably invested, is placed permanently beyond the reach of the shebait who can under no circumstances avail himself of a portion, of it to meet the most urgent and paramount needs of the endowment. We are of opinion, therefore, that we should follow the principles deducible from the decisions on Section 69 of the Lands Clauses Consolidation Act, 1845, and interpret Section 32 of the Land Acquisition Act liberally so as to enable the Court to deal with the fund in its custody for the ultimate benefit of the endowment.

12. It may be added that the second clause of Section 32 may, if liberally interpreted, seem at first sight comprehensive enough to cover the case before us. The statute provides that the money is to remain deposited and invested until it can be applied either in the 'purchase of other' lands or in payment to any person becoming absolutely entitled thereto. The language of this provision would, however, be unduly strained if we were to hold that a, shebait becomes absolutely entitled to such portion of the fund as may be needed for the protection of the debuttar estate. The corresponding expression 'absolutely entitled to such money' in Section 69 of the Lands Clauses Consolidation Act, 1845, has been interpreted to mean 'entitled to his or her own use': Kelland v. Fulford (1877) 6 Ch. D. 491. A trustee can, therefore, be hardly regarded as a person absolutely entitled, and the decision in In re Hobson's Trust (1870) 7 Ch. D. 708, which supports the view that trustees may be treated as persons absolutely entitled, was doubted in In re Smith (1888) 40 Ch. D. 386. It is worthy of note, however, that in Exp. Trustees of Tid (1868) 17 W.R. (Eng.) 758, the Court allowed the purchase money of charity properly acquired by a Railway Company to be paid to the trustees of the charity: see also In re Lathropp's Charity (1866) L.R. 1 Eq. 467 : 35 Bea v. 297 and Mayor of Sheffield v. Trustees of St. William's School (1903) 1 Ch. 208. On the other hand, the Court ordered the fund to be invested and the dividend to be paid out to the treasurer of the charity in Exp. Governors of Norfolk Clergy (1882) W.N. 53, while in In re Faversham, Charities (1862) 5 L.T. 787, it was ruled that the proceeds of the sale of charity Lands could not be paid out of Court to the trustees of the charity without the consent of the Charity Commissioners: see also In re Spurstowe's Charity (1874) L.R. 18 Eq. 279, In re Hobson's Trust (1878) 47 L.J. Ch. 310, Exp. St. Alphege (1886) 55 L.T. 314, and In re Clergy Orphan Corporation (1894) 3 Ch. 145. On the whole, we are inclined to the view that a shebait cannot rightly be described as a person absolutely entitled to the fund even when it is established that part of the fund is needed to be applied for the protection of the debuttar estate. The shebait, even if the fund is placed at his disposal, cart, apply it only for the purpose of the endowment, and cannot, therefore, be properly describes as a person absolutely entitled thereto. We, therefore, prefer to rest our decision on the ground that the case falls within the first clause of Section 32 of the Land Acquisition Act, interpreted in the light of the decisions on Section 69 of the Lands Clauses Consolidation Act, 1845, from which the provisions of the Indian Statute have been borrowed.

13. The learned vakil for the opposite party has, however, contended that in any view of the matter, the Land Acquisition Judge has no jurisdiction to deal with an application of this kind, and he has suggested that the proper course for the shebait to adopt is to bring a suit in the Civil Court. There is, in our opinion, no substance in this contention. In the first place, if the literal construction suggested on behalf of the opposite party is adopted, and if it is ruled that the compensation money must remain, deposited and invested till it can be applied in the purchase of other lands, in the strict sense of the expression, a suit for declaration that in the events which have happened a part of the fund can be applied for the protection of the endowment, would be futile, for no Court would be competent to make a decree in contravention of the provisions of the statute as interpreted by the opposite party. In the second place, it is difficult to appreciate against whom such suit, could be brought. It has been suggested that the person next entitled to succeed to the office of shebait may be joined as defendant; but it is conceivable that such person might not be in existence at the time when the contingency happened. Moreover, if such, person gave his consent to the application of the fund, the position would not be improved. The concurrence of two persons, each of whom when in office has a qualified right of alienation, cannot strengthen the position of either of them.

14. But the learned vakil for the opposite party has further contended that as Section 32 does not expressly define the mode in which an application of the character now before us should, be made and entertained, the Court has no jurisdiction to take cognizance of the matter. We are unable to give effect to this contention as well founded. It is possible that the precise contingency, which has happened, in this case, #was not contemplated by the framers of the statute.

15. But upon first principles the position may be justified that as under Section 32 the fund is placed in the custody of the Court, jurisdiction is by implication conferred upon the Court to deal with all questions that may arise as to the application of the fund in its custody. The true maxim of our law Lord Abinger said in Russel v. Smyth (1842) 9 M. & W. 810, 818 : 60 R.R. 904 to amplify its remedies and without usurping jurisdiction to apply ifs rules to the advancement of substantial justice. Again, as was pointed out by Domat in a well-known passage (Civil Law, 12, 17), quoted in the judgment of this Court in the case of Mrinalini Dasi v. Abinash Chandra Butt (1910) 11 C.L.J. 533 ' Since laws are general rules, they cannot regulate the time to come so as to make express provisions against all inconveniences which are infinite in number and that their dispositions should express all the cases that may possibly happen. It is, therefore, the duty of the Judges to apply the laws not only to what appears to be regulated by their express dispositions, but to all the cases where a just application of them may be made, and which appear to be comprehended within the express sense of the law or within the consequences that may be gathered from it.' The Land Acquisition Judge has obviously jurisdiction to make an enquiry when a claim to the fund is put forward by a person who asserts that he has become entitled thereto, or when it is suggested that suitable land is available for the purchase of which the fund may be applied. On the principles explained above, we must therefore hold that the Laud Acquisition Judge has ample authority to deal with the question under consideration, and to pass such orders in the matter as the interests of justice demand. In our opinion the conclusion is irrevitable that the application by the shebait to withdraw a portion of the compensation money in deposit must be entertained and investigated on the merits.

16. It is now necessary to give directions as to the manner in which the enquiry should be conducted, and the lines on which the final order should be given. Some guidance in this respect is afforded by the procedure adopted in the case of In re London County Council, Exp. Pennington (1901) 84 L.T. 808. The Court will first take evidence as to the truth or otherwise of the allegations made in the petition of the shebait. Possibly, one expert witness on the side of the petitioner and another on the side of the objector may be sufficient for the purpose, though we do not desire to hamper the discretion of the lower Court in this matter. As the properties in question are situated at a short distance from the Court premises, it is possible that a local investigation by the learned Judge himself might facilitate the determination of the question of the present condition of the debuttar properties.

17. If it is proved that the debuttar properties need repairs and improvements, such as cannot be effected out of the current income, the shebait should be called upon, to submit an estimate of the cost by a reliable firm of contractors; the objector must be afforded an opportunity to examine, and, if necessary, to challenge the estimate. After the estimate has been settled by the Court, the work will be entrusted (on a formal contract) to a firm of contractors selected or approved by the Court; and as the work progresses, such portion of the fund in deposit as may be needed for the. purpose will, from time to time be paid to the contractors.

18. We observe in this connection, that it is alleged, in the petition of the shebait that part of the property is in such, an unsanitary condition that action has been taken by the Calcutta Municipal Corporation, and she has already been fined. If this is established, suitable steps must be taken for the improvement of the property; and in this contingency the case will fall within the first and second rules laid down, above. On behalf of the objectors it has been stated, on the other hand, that they apprehend, that, as the shebait is a purdanashin Hindu lady advanced, in years, the work of repair and. improvement cannot, possibly, be supervised by her personally; and that, if any large sum is placed at her disposal, it may be misapplied by her advisers and dependents who, it is alleged, are impecunious. We are not in. a position to express any opinion as to the truth of these allegations. The Judge will be able to pay the contractors after calling for a report from some expert, and this procedure should be noted in the contract to execute the work, The Court has ample power to give suitable directions, so that a proper contract to complete the repairs and to effect the necessary improvements on the property may be made, verified, and carried out under its guidance. To enable the Court to determine what sum should be spent for the purpose, three elements must be taken into consideration, namely, first, the present condition of the property; secondly, the income of the endowment and the surplus left there out after payment of the current expenses; and thirdly, the amount of compensation money in deposit. To sum up, the test to be applied is, whether the work undertaken is essential for the ultimate benefit of the endowment.

19. The result, therefore, is that this Rule must be made absolute, and the order of the Court below discharged. The ease will be remanded to the Lund Acquisition Judge, in order that he may deal with it on the lines indicated in this judgment. The costs of the Rule will abide the ultimate result of the proceedings in the Court below.


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