S.K. Ghose, J.
1. This appeal arises out of a suit for recovery of Khas possession of a tank on establishment of the plaintiff's title thereto. The plaintiff's case is that the tank is the debutter property of an idol. Hare Krishna, the last shebait, being unable to perform his duties, the plaintiff was appointed shebait in 1325 B.S. and since then he had been in possession of the tank, but he was dispossessed by the defendant in 1331, B.S. Hence the suit. The defence of defendant 1 was that the tank was the personal property of Sital Bairagi a previous shebait, that Hare Krishna let out the tank to defendant 1 the raiyati right on 29th Bhadra 1326 B.C., and that since then he had been in possession. The learned Munsiff who tried the suit found that Hare Krishna executed a lease of the tank in suit in favour of the defendant on 29th Bhadra 1326 B.S. vide Ex. A. He thought that probably the tank was the personal property of Sital Bairagi; but he considered that even if it were debutter property, the lease was binding on the plaintiff for it was not a permanent, but only an ordinary raiyati, settlement. Further he found that the defendant had re-excavated the tank and made certain improvements which were necessary. Taking all these facts into consideration the learned Munsiff thought that the lease was binding upon the plaintiff. The learned District Judge on appeal did not interfere with the trial Court's finding that the defendants had satisfactorily proved that Hare Krishna had executed pattah Ex. A. But the learned District Judge held that the tank was debutter property dedicated to the worship of the idol. He then proceeded to construe the document Ex. A and he held that by it a permanent interest was created in favour of defendant 1, and finding that no legal necessity had been made out, he thought that the lease was not binding upon the plaintiff. He accordingly allowed the appeal and decreed the suit. Hence this appeal by defendant 1.
2. The principal point that is raised in this appeal is that the Court of appeal below placed an entirely erroneous construction on the lease Ex. A, that it, should be held that the grant made in that document was that of the rights of an occupancy raiyat, and that it was within the competence of the shebait to make such a grant. It is pointed out that the learned District Judge has put a wrong construction upon the word 'niyamita' which he has taken to mean settled or fixed; whereas the proper meaning of this word is regular, implying that the rent should he paid regularly. The actual words in the lease are these (in Bengaly). I consider that the contention on behalf of the appellants is correct. The material portion of the document may be translated as follows:
you having taken raiyati settlement of the land mentioned below and having dug a tank and you having now prayed for taking settlement thereof without any fixed term I have granted your prayer. Accordingly you having paid me Rs. 10 as najar selami for the said tank, and I having received the said money do hereby execute this patta without any fixed term. You shall pay to my office every year an annual jama of annas eight for the said tank. No objection as to payment of rent will be entertained without dakhilas. You will pay the rent according to the kists mentioned below. If you make default in paying any instalment I shall be entitled be realise an interest of Rs. 3-2 par cent per mensem with damages and costs and you will be bound to pay, and will be entitled to enjoy the (land) from son to grandson and other heirs with rights of gift and sale by paying rent regularly in respect of the said land. My sons and grandsons or any other heirs will not be entitled to object thereto. If anybody does so hi objections will be disallowed by law.
3. From these stipulations in the pattah it seems to me that the tenancy is permanent in so far that so long as the rent is paid regularly the tenant will continue to enjoy the land. But there is nothing to show that the rent is fixed. On the contrary there is nothing to prevent the landlord from exercising his ordinary right to enhance the rent. No doubt there are words going to show that no term is fixed, and that the tenancy is heritable and transferable. But these stipulations are not inconsistent with the landlord's right to enhance the rent. By way of illustration I may refer to the case of Bhupendra Chandra Singh v. Harihar Chakravarti (1920) 24 C.W.N. 874 which was a case of a tenure. There, though the document creating the tenure showed that there were expressions going to show that the tenure was maurasi, it was held that there was nothing to show that it was intended to be mokarari. The fact that in the present case there is no recital of necessity confirms the view that it was not intended that the alienation should be permanent in the sense that the rent should be fixed for all time. The absence of a word like 'mokarari' also supports my view. I may refer to the case of Krishnendra Nath v. Kusum Kumari which again is a case of a tenure. On the other hand the pattah on the face of it describes itself as a raiyati settlement. My conclusion, therefore, is that in this case the lease did not stipulate for a fixed rent, but that the only stipulation was that the tenancy should be permanent so long as the rent was regularly paid, but this rent is liable to enhancement according to law. In this view, there is no doubt, the lease was within the competence of the shebait and is binding on the plaintiff. In the case of Palanippa Chetty v. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33 the lease was at a fixed rent. But in this case, as I have said, the lease is not to that effect. On the other hand it leaves to the idol's estate the benefit of an augmentation of rent from time, to time and this is within the competence of the shebait as was pointed out in the case of Maharanee Shibessouree Debia v. Mathoora Nath Acharja (1869) 13 M.I.A. 270.
4. On behalf of the respondent a suggestion has been made that the tenancy is one under the Transfer of Property Act. But no such suggestion was made in the Courts below where it seems to have been assumed that the tenancy is under the Bengal Tenancy Act. The mere fact that it is a tank does not take it out of the operation of the Bengal Tenancy Act. On the other hand it was the subject of a Record-of-Rights under the Bengal Tenancy Act and the lease on the face of it is a raiyati lease. There is therefore no force in the suggestion that the lease is under the Transfer of Property Act.
5. There is one other matter which has been argued before us and that is that the learned District Judge was not right in allowing the present respondent Suchitra Baisnabi to appear as the plaintiff-appellant in the place of the original plaintiff. It appears that the original plaintiff died after the decision of the suit in the lower Court and before the filing of the appeal, and that Suchitra Baisnabi got herself substituted as the widow of the original plaintiff. It is contended that this should not have been allowed in the absence of an affidavit to the effect that she was the present shebait. There is no rule of law that an application of this nature must be supported by an affidavit. In the present case it appears that the learned District Judge was satisfied from the evidence of D.W. 1 that the Baisnabi of the former shebait joined in the performance of the sheba. It does not seem to have been disputed that the original plaintiff was dead and that Suchitra was his widow. In the circumstances the learned District. Judge was justified in allowing Suchitra to prosecute the appeal.
6. In view of my finding that the lease is binding on the plaintiff the appeal must succeed and the suit must stand dismissed. The decree of the trial Court is restored and the appellant will get his costs in all the Courts.
7. I agree.