Skip to content


Pratap Mull Bagaria and anr. Vs. Sree Sree Iswar Gopal Jiew Thakur Represented by N.N. Rudra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata
Decided On
Reported inAIR1944Cal211
AppellantPratap Mull Bagaria and anr.
RespondentSree Sree Iswar Gopal Jiew Thakur Represented by N.N. Rudra and anr.
Cases ReferredThirtha Swamigal v. Balusam Ayyar
Excerpt:
- b.k. mukherjea, j.1. these two appeals are directed against a judgment of the president, calcutta improvement tribunal, dated 3lst august 1938, passed in an apportionment case arising out of a reference made to him by the first land acquisition collector, calcutta. the reference was made in connexion with the acquisition of premises no. 140 cotton street, calcutta, which was acquired in pursuance of a declaration dated 22nd november 1931. premises no. 140, cotton street, as it stands at present has been formed by amalgamation of a number of holdings which were originally numbered premises nos. 140,140/1 and 141 cotton street, 17 burtola street (excluding the temple) and 9/1 narayan prosad babu lane. the last two properties admittedly belonged to three persons who may be described as the.....
Judgment:

B.K. Mukherjea, J.

1. These two appeals are directed against a judgment of the President, Calcutta Improvement Tribunal, dated 3lst August 1938, passed in an apportionment case arising out of a reference made to him by the First Land Acquisition Collector, Calcutta. The reference was made in connexion with the acquisition of premises No. 140 Cotton Street, Calcutta, which was acquired in pursuance of a declaration dated 22nd November 1931. Premises no. 140, Cotton Street, as it stands at present has been formed by amalgamation of a number of holdings which were originally numbered premises Nos. 140,140/1 and 141 Cotton Street, 17 Burtola Street (excluding the temple) and 9/1 Narayan Prosad Babu Lane. The last two properties admittedly belonged to three persons who may be described as the Bagarias, at the time of the acquisition, while the Cotton Street properties were owned at all material times by a deity known as Iswar Gopal Jiew which is located at Chinsurah in the district of Hooghly. There were two permanent leases created in respect of these properties by the previous shebaits of the deity; one, which was in respect of premises No. 140 and 140/1, Cotton Street, was ostensibly granted to one Nehal Chand Pandey at a fixed monthly rental of Rs. 25 while the other, which was created in favour of Bhairo Das Jahury, reserved a monthly rental of Rs. 90. It is admitted that Nehal Chand was a mere benamidar of Bhairo Das, and both the leasehold interests are now vested in the Bagarias under a deed of assignment dated 24th January 1933.

2. One Gopal Das Singh Boid was the shebait of the deity Iswar Gopal Jiew from 1873 to 1900. On 19th January 1896, Gopal Das executed a usufructuary mortgage bond in favour of one Lai Behary Dutt of Chinsurah, hypothecating all the immovable properties of the deity, including the premises in Cotton Street mentioned above to secure a loan of Rs. 4955 annas odd, which represented the principal and interest of certain advances made to Gopal Das during his minority. The terms of the mortgage bond were that the mortgagee would realise the rents and profits of the mortgaged properties and out of the same carry on the worship of the deity and meet all other expenses that might be necessary for preservation and management of the debattar estate. The balance that would remain would go towards the satisfaction of the money advanced which would carry interest at the rate of 4 per cent, per annum. In 1900 Gopal Das died childless leaving behind him his widow Annapurna as his sole heir in law. Annapurna, it appears, took out probate of a will left by her husband and she herself died in 1905. It has not been ascertained as yet as to who were the next heirs of Gopal Das when Annapurna died and the question of succession to the shebaitship of the deity still remains undecided. Two persons named Deo Sharan and Ram Lakhan laid claims to shebaitship as the nearest heirs of Gopal Das, and they figured as shebaits of the deity in the land acquisition proceedings and also in the apportionment case before the President of the Tribunal. The learned President, however, came to the definite conclusion that these two men were perfect strangers and were not related in any way to Gopal Das, and this finding has not been challenged before us. One Panchu Gopal Misra also put forward his rights as a shebait in a redemption suit brought by him in the Court of the Subordinate Judge at Hooghly. He was held to be a shebait by the trial Judge, but on appeal to the District Judge this claim was negatived. A second appeal, we are told, has been filed since then in this Court but it has not been heard as yet. The deity is represented before us by a pleader who was appointed its next friend by the President of the Tribunal.

3. The position therefore is that ever since 1896 when Gopal Das executed the usufructuary mortgage deed, it is the usufructuary mortgagee or his successors who are carrying on the worship of the deity and are in possession of the entire debattar estate. Lai Behary Dutt, the original mortgagee, died in 1900. After his death the estate left by him was the subject-matter of an administration suit in the original side of this Court, and Mr. G. C. Mandal, who was appointed receiver during the pendency of the suit, did, with the permission of the Court, put up to sale the mortgagee's interest which Lal Behary held in respect of the debattar properties including the Cotton Street premises mentioned above amongst the beneficiaries under the will of the said Lal Behary, and it was purchased by one Naba Kishore Dutt whose bid was the highest. A deed of sale was duly executed in favour of Naba Kishore, by the receiver and other beneficiaries on 12th December 1918. Naba Kishore continued in possession of the debattar estate till 17th November 1938, when he assigned his interest as usufructuary mortgagee to two of the Bagarias by a deed of assignment executed on that date. In the award made by the Collector regarding the present premises No. 140 Cotton Street, the Bagarias were allowed Rs. 3,01,000, as compensation for their proprietary right in premises No. 17 Burtalla Street and 9/l Narayan Prasad Babu Lane as they originally stood, and their permanent leasehold interest in old premises No. 140,140/1 and 141 Cotton Street. It is admitted that out of this amount a sum of Rs. 1,58,000 represents the compensation awarded in respect of their permanent leasehold rights in the Cotton Street premises. The lessor's rights in old premises Nos. 140,140/l and 141 Cotton Street, which were vested in the deity, have been valued at 20 times the annual rental, and the total award in this respect amounting to Rs. 31,740 was allowed by the Collector jointly to the shebaits of the deity and the two Bagarias as usufructuary mortgagees of the lessor's interest. The Collector's award is dated 2nd May 1985. There were three petitions for reference filed by three sets of claimants after this award was made. The first was by the Bagarias as usufructuary mortgagees, and their case was that the joint award of Rs. 31,740 to themselves along with the deity was improper, and as the mortgage money due to them amounted to more than Rs. 31,740 the total amount should have been given to them. The second application for reference was by the shebaits of the deity and their grievance, in substance, was that the Bagaria claimants should not have been allowed anything as usufructuary mortgagees as the mortgage had been satisfied long before and they could not also claim compensation as permanent lessees as the alleged permanent leases not being supported by any legal necessity were not binding on the deity. The third petition for reference was presented by one Hrikhikesh Sen who claimed to be a lessee for 99 years in respect of the said properties under the deity and whose claim was rejected by the Collector on the ground that his title accrued after the date of declaration.

4. On the basis of these petitions the Collector made a reference on 2nd August 1935, and on 12th August following it was registered as Apportionment case no. 95 of 1935, in the Court of the President, Improvement Tribunal. After a protracted hearing, the President delivered his judgment on 8lst August 1988. The award of the Collector was modified to this extent that the sum of Rs. 31,740 allowed jointly to the deity and the usufructuary mortgagees was given exclusively to the deity, the President being of opinion that the mortgagees could not prove that any amount was still due to them on the usufructuary mortgage bond. The award of the compensation money amounting to Rs. 1,58,000 in favour of the Bagarias as permanent lessees of the debattar property was not disturbed and the President also concurred with the Collector in holding that Hrishikesh Sen who was claimant no. 3 was not entitled to any compensation.

5. Two appeals have been taken to this Court against this decision, one by the Bagarias as usufructuary mortgagees, which is Appeal From original Decree NO. 20 of 1989, while another appeal has been preferred by the next friend of the deity and has been registered as Appeal from Original Decree No. 173 of 1939. No appeal has been filed by Hrishikesh Sen whose claim was negatived both by the Collector as well as by the President of the Improvement Tribunal.

6. (Their Lordships then dealt with Appeal No. 20 of 1939 and dismissed it.)

7. F. A. No. 173 of 1939. We now come to the other appeal, viz., Appeal from Original Decree No. 178 of 1939, which has been filed by the next friend of the deity. The contention of the appellant in this appeal is that as the permanent leases under which the Bagarias purport to hold the Cotton Street premises are not binding on the deity as not being supported by any legal necessity, no compensation should have been allowed to them on that footing. The Bagarias, it is argued could at best rank as monthly tenants and get nominal compensation on that basis and the deity should not have been given merely the capitalised value of the rental. The learned President decided this point against the deity primarily on the ground that having regard to the provisions of Article 134B, Limitation Act, it was no longer open to the next friend of the deity to question the validity of the permanent leases. He further held, though without discussing the evidence on the point, that the leases could be sustained on the ground of legal necessity. Both these points have been argued before us with elaborate fullness by the learned advocates on both sides and it is necessary that we should examine them carefully.

8. We will first turn to the question of legal necessity. The law on this point is well-settled, and

it is a breach of duty on the part of a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debattar lands at a fixed rent, however, adequate that rent may be at the time of granting, by reason of the fact that by this means the debattar estate is deprived of the chance it would have, if the rents were variable, of deriving benefit from the enhancement in value in the future of the lands leased:' vide Palaniappa Chetty v. Deivasikamony Pandara Sannadhi ('17) 4 A.I.R. 1917 P.C. 33. at page 156.

To determine whether any such necessity was proved in the present case it would be necessary first of all to refer to certain antecedent circumstances. The endowment in this case was created by one Siva Narayan Kalia, though no deed of dedication was executed by him. It was he who installed the deity in a brickbuil house at Chinsurah and set apart certain properties consisting of putni taluks and garden lands at Chinsurah and Chandernagore for the worship of the idol. Siva Narayan had three wives besides a mistress by the name of Kishon Dasi. The first wife died during his life-time leaving a daughter Jiban Kumari. The second wife also predeceased her husband and the only issue she left behind her was a daughter named Amrit Kumari. The third wife whose name was Mooni Bibi survived Siva Narayan and she had no issue, of her own. After the death of Siva Narayan there was a solenama or deed of family arrangement executed in the year 1835 between Mooni Bibi, the surviving wife, Amrit Kumari and Jiban Kumari, the two daughters and Kisri Bibi, the mistress of Siva Narayan representing her minor son Ram Narayan Kalia, by which the entire properties left by Siva Narayan with the exception of those set apart for the deity were divided amongst them. Mooni Bibi got in her share among other properties a house at Tula Bazar in Calcutta which later on was numbered 140, Cotton Street, while to Jiban Kumari was allotted for her life-time the contiguous premises which subsequently became 141, Cotton Street, the remainder after her death being given to the deity Iswar Gopal Jiew. The properties which Sibnarayan had set apart for the worship of the deity together with the house where the deity was located were expressly declared to be debattar properties and the duties of carrying on the worship of the deity were entrusted to Mooni Bibi and Jiban Kumari jointly. On 25th January 1848, Mooni Bibi executed an Arpannama (Ex. 10) by which she dedicated the Cotton Street premises which she got under the solenama mentioned above, to the deity Sri Gopal Jiew. The recitals in this document go to show that the putni properties which belonged to the deity had been sold for arrears of rent and the fund for defraying the expenses of worship and other ceremonies of the deity had fallen short. Jiban Kumari, the daughter, it is recited, was making up the deficiency from her own private funds. As Mooni Bibi had no children of her own and the zemindari properties which she had in the district of Patna were sufficient for her maintenance she dedicated the Cotton Street property to the deity so that out of the monthly rental of this premises which was Rupees 20 a month, the sheba and other expenses of the deity might be properly performed. On 30th September 1869, Mooni Bibi created a permanent lease in her character as shebait in favour of Nehal Chand Pandey who was a benamdar of Byrub Das Johuri arid the kabuliyat executed by the lessee is marked Ex. L. The material portion of the document stands as follows:

As you are shebait of the deity Sree Sree Iswar Gopal Jiew installed by your husband and as you have no other heir, you have executed in favour of Iswar Jiew an Arpannama (deed of dedication) in respect of the said house and are in possession thereof on payment of rent to Sadder and realisation of rent in mofussil. The said house collapsed in the rains of 1275 B.S. and being unable to bear the expenses of constructing a new building at the place and being, at the same time, desirous of preserving the property, you sold to me at the price of Rs. 500 the bricks and timbers, etc, of the said house which fell down, and have announced your intention to let out at permanent mokrari rent the land within the aforesaid boundaries, comprising an area of 2 cottas 9 chitaks 25 square feet as mentioned in the collectorate revenue bills of present times. Accordingly, I on appearing at your house at Chinsurah, Burrabazar, agree to pay a yearly rent of Rs. 300 at the rate of Rs. 25 per month and take settlement (of the land) at mokrari rent.

A few days later Jiban Kumari granted a permanent lease in respect of the other property, namely, premises 141, Cotton Street, and in which, as I have said already, she enjoyed a life interest under the terms of the solenama, the remainder being given to the deity. This lease was also executed by her in her capacity as shebait. It is recited in the kabuliyat Ex. K that the house stands in need of repairs and for want of such repairs there is chance of some portion breaking down in the present year. It is for the purpose of repairing the property and keeping it in existence that the permanent lease was granted. Dr. Basak has argued quite properly that the recitals in these old documents could not be disregarded. As was held by their Lordships of the Judicial Committee in Banga Chandra Dhur Biswas v. Jagat Kishore Chowdhuri ('16) 3 A.I.R. 1916 P.C. 110

where 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.

At any rate, such recital could be regarded as evidence of representation made to the alienee, and

if the circumstances are such as to justify a reasonable belief that an enquiry would have confirmed its truth, then, when proof of actual enquiry has become impossible, the' recital coupled with suoh circumstances, would be sufficient evidence to support the deed.

9. The question in this case, however, is whether taking the recitals as they are, they do really make out a case of legal necessity. In the first document it is recited that the house had collapsed during the rains of 1875, and the shebait was incapable of building another house in its place and as she was desirous of preserving the property she was granting the permanent lease. In the other document it is simply stated that the house stood in need of repairs and as there was chance of its falling down if no repairs were made, the shebait desired to grant a permanent lease for repairling it and keeping it in existence. Preservation of the debattar property from extinction is undoubtedly a justifying necessity which would support a permanent alienation made by the shebait but it is absurd to speak of preserving a property which is itself the subIject-matter of alienation. It seems to me that what the recitals really mean is that the lessor in one case was incapable of rebuilding the house and in the other case of making proper repairs which would prevent it from tumbling down. The result therefore was that none of the two houses would remain and there would exist only the vacant land which probably would not fetch any decent income. If in these circumstances the lessee undertook to rebuild one of the houses and keep the other in proper repairs and pay rent for them on the footing that they are house properties and not vacant lands, the deity would be benefited and would remain the owner of the houses although it might have no chance of getting khas possession of them at any time. Even if this was the intention of the parties that by itself would not make out a case of legal necessity unless it is proved that the income of these houses was absolutely necessary to maintain the endowment and that the endowment would materially suffer if the income of these houses was lost. Dr. Basak accepts this position as correct for no shebait is at liberty to alienate the property simply because that it might be of advantage or financial benefit to the deity. What he says is that after the loss of putni properties which the deity had, there was no other income-bearing property from the rents and profits of which the expenses of the debattar could be met. The recitals in Mooni Bibi's Arpannama (ex. 10) would show that the income of the existing debattar property at that time was not sufficient to meet the expenses of jatra, mahotsab, etc., which were usually performed and Jiban Kumari had been meeting this deficiency from her own funds. Mooni Bibi dedicated premises No. 140 Cotton Street for the obvious reason that deity might have some permanent income every month from which its legitimate expenses could be met. As the house dedicated by her collapsed during the rains of 1875 and she was not in a position to build another house in its place the only thing she could do was to let out the land which measured only 2 cottas and odd chittaks as vacant land. This could not fetch any appreciable income and would not satisfy the requirements of the deity. The other alternative was to sell the vacant land and if the circumstances justified a sale, a permanent lease would also be justified, for it is not disputed that the rent reserved by the lease was quite adequate having regard to the market value of the land at that time.

10. There is undoubtedly some force in this contention though I must say that there are good many assumptions involved in this argument about which there is no direct evidence. The recitals in the Arpannama undoubtedly show that the putni properties of the deity were lost and that in meeting the expenses of jatra, mahotsab etc. Jiban Kumari had been making contributions from her own funds. We do not know what was the amount of money which the deity required for its normal expenses and we do not also know the amount of contribution that had to be made by Jiban Kumari. If it can be shown that the worship of the deity could not be carried on properly, without the income of these two houses and as the income was sure to be reduced considerably if the houses had collapsed leaving nothing but the bare land, possibly a justifying necessity could be found for granting the permanent leases but as to that, as I have said already, no direct evidence is available.

11. One thing undoubtedly is in favour of Dr. Basak's client, namely, that the validity of these permanent leases has not been questioned for a long period of time extending for over half a century, and although three shebaits have succeeded to the debattar estate one after another since the death of Mooni Bibi and Jiban Kumari, none of them impeached the propriety of the leases. It is not disputed that the land values in Calcutta had gone up considerably during this period, and obviously, if the leases could be successfully challenged it would have meant a large income for the debattar estate. It appears from the records that Mooni Bibi died in 1870 and Jiban Kumari followed her in 1872. Before her death Jiban Kumari had'appointed Gour Moni Devi, daughter of her step-sister Amrit Kumari as shebait of the debattar property (vide Ex. 11). By a deed of assignment executed in 1873, the rents reserved by the two permanent leases referred to above were assigned by Gour Moni to one Puma Chandra Boral in Order to repay certain advances made by the latter (vide Ex. Y), and in this deed of assignment the mokrari pottas are expressly referred to. After Gour Moni, Gopal Das became the shebait of the deity and he lived till 1900 and during all these years no effort was made either by himself or by his guardian to recover possession of these properties included in the leases. After the death of Gopal Das, Annapurna became the shebait and the debattar estate, as I have said already, has been since 1896 under the management and control of the usufructuary mortgagee and his successors, and they were the persons in possession when the declaration under the Land Acquisition Act was made.

12. The Madras High Court held in Chockalingam Pillai v. Mayandi Chettiar ('96) 19 Mad. 485. that although a manager for the time being has no power to make a permanent alienation of a temple property in the absence of proved necessity for the alienation, yet the long lapse of time between the alienation and the challenge of its validity is a circumstance which entitles the Court to assume that the original grant was made in exercise of that extended power. This principle was approved of and acted upon by their Lordships of the Judicial Committee in Bawa Magniram Sitaram v. Kasturbhai Manibhai ('22) 9 A.I.R. 1922 P. G. 163. In the case before us the recitals in the document are certainly ambiguous. But regard being had to the long lapse of time between the date of the leases and that of the present proceedings and the conduct of successive shebaits, it would not be wrong, I think, to make a presumption in favour of the lessee. On the whole, therefore, I am inclined to hold that the leases were for legal necessity.

13. But even if I assume for the sake of argument that there is no necessity to justify the permanent leases, I think that the Court below is right in holding that Article 134B, Limitation Act, would afford a complete protection to the lessees in the present case. This article was introduced into the Limitation Act along with Article 134A and 134C by the amending Act 1 of 1929 which also added a new paragraph to Section 10, Limitation Act. It is well known that there was considerable diversity of judicial opinion in India on the question of limitation in respect to suits for recovery of endowed property improperly alienated by a manager prior to the pronouncement of the Judicial Committee in Vidya Varuthi Thirtha Swamigal v. Balusam Ayyar ('22) 9 A.I.R. 1922 P.C. 123. The prevailing view seemed to be that when a mohunt or shebait transferred a property belonging to a math or idol to a stranger, the period of limitation would begin to run from the date of the alienation and not from the date on which the succeeding mohunt or shebait came into office. Reference may be made in this connexion to the cases in Nilmony Singh v. Jagabandhu Roy ('96) 23 Cal. 536, Dattagiri v. Dattatraya('03) 27 Bom. 363, Narayan v. Shri Ram Chandra ('03) 27 Bom. 373, Behari Lal v. Muhammad Muttaki.20 ALL. 482. The majority of the decisions proceeded on the view that the person who alienated the endowed property was in the position of a trustee and consequently the case was governed by Article 134, Limitation Act, as it then stood, and time ran from the date of transfer. In some of the cases, however, Article 144 was applied. Thus in Nilmony Singh v. Jagabandhu Roy('96) 23 Cal. 536 Banerjee J. observed as follows:

The idol is a judicial person capable of holding property as has been authoritatively settled by the decision of the Privy Council in Shibessuree Dabia v. Mathoora Nath (70) 13 M.I.A. 270 and the possession of the defendants who profess to derive title, not from the idol, but ignoring its rights must be taken to have become adverse to the idol from the dates of the two alienations which are both more than 12 years before the date of the present suit.

On the other hand, there are certain eases, though few in number which adopted the view that a mohunt who had at best a life interest in the property,, could not create any interest superior to his own, and an alienee from the mohunt could only take interest commensurate with the mohunt's life, and if he remained in possession after the death of the mohunt, the successor would have a cause of action from the date of election: vide Mohunt Burm Suroop Dass v. Khashee Jha ('69) 20 W. R. 471. In Vidya Varuthi Thirtha Swamigal v. Balusam Ayyar ('22) 9 A.I.R. 1922 P.C. 123. their Lordships of the Judicial Committee definitely laid down that Article 134 has no application to cases of this description. It was said that neither under the Hindu law nor in the Mahomedan system is any property conveyed to a shebait or mutwalli in the case of dedication, nor is any property vested in him. Whatever property the shebait or mohunt holds for the idol or the institution he holds as manager with certain beneficiary rights which are regulated by custom or usage. Alienation by shebait or mohunt cannot therefore be treated as an act of a trustee to whom property has been conveyed in trust within the meaning of Article 134, Limitation Act. As Article 134 has no application, such cases fall within the residuary Article 144 and the question arises as to when does the possession of the alienee become adverse to the endowment. It was held by their Lordships of the Judicial Committee that the possession did not become adverse during the lifetime of the alienating mohunt as he was competent to create an interest commensurate with his life. On his death the possession of the alienee would become adverse, but if the alienation was by way of lease and the lessee's possession was consented to by the succeeding manager, there would be no adverse possession till the succeeding mohunt died.

14. In Vidya varuthi Thirtha Swamigal v. Balusam Ayyar ('22) 9 A.I.R. 1922 P.C. 123, the alienation was by way of a permanent lease. The Privy Council, however made it clear in Ram Charan Das v. Naurangi Lal ('33) 20 . that the same principle applies to sale of an item of debattar property and the possession of the purchaser would not become adverse so as to cause time to run under Article 144, Limitation Act, until the alienating mohunt ceased to be a mohunt by death, removal or otherwise. Distinction was made with regard to the class of eases where there was an assignment or disposition of an entire math and its properties and not of particular items only; and in such eases the alienation being void altogether, the possession of the assignee would become adverse from the very date of assignment. It was pointed out that the cases in Gnanasambanda Pandara Sannadhi v. Velu Pandaram (1900) 23 Mad. 271 ,Damodar Das v. Lakhan Das ('10) 37 Cal. 885, were cases of this type to which the principle enunciated in Vidya varuthi Thirtha Swamigal v. Balusam Ayyar ('22) 9 A.I.R. 1922 P.C. 123. was inapplicable. Article 134B, Limitation Act, came into force on 1st January 1929. It prescribes a limitation of 12 years for a suit instituted by the manager of a Hindu, Mahomedan or Buddhist endowment for recovery of possession of immovable property comprised in the endowment which was transferred by a previous manager for consideration. Such cases are no longer governed by Article 144 but come under the specific Article 134B and the terminus a quo is the date of death, resignation or removal of the transferor. Thus, the Legislature, in a sense, has adopted the principle which the Judicial Committee enunciated in ('22) 9 A.I.R. 1922 P.C. 123. though it is no longer necessary to enquire when the alienee's possession became adverse.

15. In the case before us both the alienating shebaits died long before 12 years prior to the starting of the land acquisition proceedings. If Article 134B applies to this case, it cannot be disputed that at the date when the declaration for acquisition was published it was no longer possible for a shebait of the deity to institute a suit for recovery of possession of the properties comprised in the permanent leases on the ground that the leases were not binding on the deity. The necessary consequence, therefore, would be that the alienee who obtained possession under the transfers would acquire under Section 28, Limitation Act, a title to the properties.

16. Mr. Ghose appearing on behalf of the next friend of the deity has contended before us that Article 134B has no application to the facts of the present case. His argument on this point is of a two-fold character. His first contention is that Article 134B read with Section 28, Limitation Act, might extinguish the right in a case when it is possible to, or necessary for the succeeding shebait to institute a suit for recovery of possession of a debattar property alienated by his predecessor; but, when, as in the case before us, the succeeding shebaits by adopting the lease created new tenancies, each during his term of office, and it was not possible for them to institute a suit for possession, Article 134B cannot have any application. If I have understood Mr. Ghose aright, what he means to say is this: Article 134B, Limitation Act, is confined to cases where the succeeding shebait does not recognise the lease and consequently the possession of the lessee becomes adverse to him. If the succeeding manager consents to the lessee's continuing in possession, a new tenancy commensurate with his term of office may be presumed, and no right to recover possession accrues till a shebait comes who repudiates the lease. I will assume for purposes of this case that the contention of Mr. Ghose is right, though it seems to me that under Article 134B, Limitation Act, the terminus a quo has been rigidly fixed and begins from the date of death or cessation of office of the alienating mohunt and the Legislature has deliberately avoided all questions of adverse possession after the death of such manager. By assuming that the contention of Mr. Ghose is right, what would be the position in the present case when none of the shebaits who succeeded to the debattar estate after the death of Jiban Kumari chose to impeach the validity of these leases It is during the continuance of the present proceedings that the deity has challenged the legality of these transfers. If Mr. Ghose is right, we have got to hold that no cause of action for instituting a suit to recover possession of the idol's property within the meaning of Article 134B, Limitation Act, accrued before 1935 when the land acquisition proceedings were started. But even though the cause of action accrued in 1935 and not earlier than that, it would be still incapable of being enforced on that date by reason of Article 134B, Limitation Act, as more than 12 years already elapsed from the death of the two alienating managers.

17. Mr. Ghose next argues that Article 134B cannot apply to a case like the present when the period of 12 years had already elapsed before this article came into force. What he says is that a statute of limitation cannot extinguish a substantive right which was in existence at the date when the statute was passed. The Legislature can shorten the period within which a suit for enforcement of such right can be brought but when it is not possible to bring a suit at all, to give effect to the statute of limitation would be to take away a vested right. In such circumstances the law of limitation would not apply. Reliance has been placed in support of this proposition upon a Special Bench decision of this Court in Gopeshwar Pal v. Jiban Chandra Chandra ('14) 1 A.I.R. 1914 Cal. 806, The general principle undoubtedly is that the law of limitation applicable to a suit is the law in force at the date when such suit is instituted. If, however, the result of applying such law of limitation is to take away a vested right, such intention could not be imputed to the Legislature unless it is expressed in unequivocal language. It is also well established that a right of suit is a vested right. In the case decided by the Special Bench the cause of action had already accrued prior to the passing of the Amending Act. Under the law of limitation as it then stood, the plaintiff had 12 years' time within which to institute a suit. The Amending Act substituted two years for 12 years, and the suit was instituted more than two years after the cause of action arose but within 12 years from that date. It was held that the vested right of suit which the plaintiff had under the old law could not be taken away by the Amending Act unless there was express provision to that effect. In the ease before us, it must be held that under the law as it stood prior to the introduction of Article 134B in the Limitation Act, a suit of this description would be governed by Article 144 of the Act and the period of limi tation would be 12 years from the date when the defendant's possession became adverse. According to the Rule laid down in Vidya varuthi Thirtha Swamigal v. Balusam Ayyar ('22) 9 A.I.R. 1922 P.C. 123. the possession of the lessee would not be adverse so long as the shebait who granted the lease was holding his office. After his death, resignation or removal, the possession of the lessee would be presumably adverse but it would be open to the succeeding mohunt to accept the lease and in that case possession would not become adverse unless a shebait comes into office who does not recognise the lease as binding. In the case before us, it is admitted that the possession of the lessee was not adverse prior to 1929 when Article 134B was introduced. No right to sue accrued to the manager of the deity prior to the passing of the Amending Act 1 of 1929 and there is no question of taking away any right accrued prior to the passing of the Amending Act. The identical view has been taken by a Division Bench of this Court in 41 C.W.N. 693,16 and I see no reason to differ from that decision.

18. Mr. Ghose also argued, though somewhat faintly, that Article 134B bars the right of the manager but not of the deity. To that the obvious reply is that the right to sue is vested in the manager and not in the deity: vide 31 I. A. 203.17 The result, therefore, is that this appeal is dismissed. The cross-objection is dismissed. We make no Order as to costs.

Sen, J.

19. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //