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Mahammad Faiz Chowdhury Vs. E.F. Sandys - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.737
AppellantMahammad Faiz Chowdhury
RespondentE.F. Sandys
Excerpt:
bengal tenancy act (viii b. c of 185), sections 95, 98, 100 - rules framed by calcutta high court under section 100, rule 4--suit by common manager against ex-manager for account and recovery of balance due, whether maintainable--sanction of district judge, whether necessary--failure to obtain sanction, effect of. - .....appeal arises out of a suit for account and for the delivery of account papers, instituted by a common manager, mahammad faiz chowdhury, appointed as such by the district judge of tipperah under section 95 of the bengal tenancy act, against mr. e. f. sandys, an ex-common manager. the defendant was discharged from the office of common manager and mahammad faiz, the plaintiff, was appointed in his place as the common manager.2. the suit has been dismissed by the subordinate judge on the ground that the right to sue for accounts was in the owners of the estate and not in the common manager, and that, at any rate, the common manager could not maintain a suit such as was brought without the express sanction of the district judge, and that such sanction had not been obtained, the suit, we.....
Judgment:

Ghose, J.

1. This appeal arises out of a suit for account and for the delivery of account papers, instituted by a common manager, Mahammad Faiz Chowdhury, appointed as such by the District Judge of Tipperah under Section 95 of the Bengal Tenancy Act, against Mr. E. F. Sandys, an ex-common manager. The defendant was discharged from the office of common manager and Mahammad Faiz, the plaintiff, was appointed in his place as the common manager.

2. The suit has been dismissed by the Subordinate Judge on the ground that the right to sue for accounts was in the owners of the estate and not in the common manager, and that, at any rate, the common manager could not maintain a suit such as was brought without the express sanction of the District Judge, and that such sanction had not been obtained, The suit, we may here mention, was a suit not only for account, but also for recovery of such sums of money which, upon the account being taken, might be found due by the defendant to the estate; and the plaintiff valued the claim at Rs. 5,482-15-0 odd.

3. Section 98 of the Bengal Tenancy Act provides in Clause (3): 'He' that is to say, the manager, 'shall, subject to the control of the District Judge, have, for the purpose of management, the same powers as the co-owners jointly might but for his appointment have exercised, and the co-owners shall not exercise any such power.'

4. And the question which in the first place demands our consideration is whether a suit for account and for recovery of such sums of money as may upon account being taken be found due by an ex-manager, is for the purposes of management of the estate as contemplated by Clause (3) of Section 98 of the Act. The matter is not altogether free from doubt, but after the best consideration that we have been able to give to it, it seems to us that it is for the purposes of management. Under Section 98 a common manager is entitled for the purposes of management to exercise, though under the control of the District Judge, all the powers which the co-owners jointly might exercise. He could for the purposes of such management realise rents from tenants: he could, if necessary, take such proceedings in Court for the purpose of realizing rents: he could, so far as we can see, recover or take proceedings to recover moneys due to the estate from debtors---all this, no doubt, subject to the control of the District Judge, bat still as regards the recovery of such dues, whether they be rents or other moneys, it would, we think, be for the purposes of the management of the estate in the hands of the common manager. As bearing upon the question whether the common manager is entitled to bring such a suit, or whether the right is in the owners of the estate, the Subordinate Judge in his judgment has relied upon Clauses (5) and (7) of Section 98 arid Section 103 of the Act. Clause (5) simply declares that the common manager shall keep regular accounts and that the co-owners or any one of them is entitled to inspect or take copies of the accounts kept by the manager. A proprietor is certainly entitled to inspect the accounts in order to keep himself informed as to what is going on; but it does not follow from this, as the subordinate Judge thinks, that the right to bring a suit for account against an ex-manager is in the proprietors, and not in the common manager. Clause (7) of the Section simply says that the manager may make any application which the proprietors could make under Section 103. That section, as it stood in the Act of 1885, declared that on the application of proprietors or tenure-holders, and on depositing or giving security for the required amount for expenses, a Revenue Officer may, subject to and in accordance with the rules made in this behalf by the Local Government, ascertain and record the particulars specified in Section 102 with respect to the estate or tenure or any part thereof.' Section 188 of the Act, however, provides: Where two or more persons are joint landlords, anything which the landlord is under this Act required or authorised to do must be done either by both or all those persons acting together, or by an agent authorised to act on behalf of both or all of them.' Reading these two sections together, it would seem that one of the co-owners of an estate could not apply for the Record of Rights, and in view of this disability of one of the co-owners of an estate Section 98 of the Act provided in clause(7)*** that a common manager might make any application which the proprietors could make under Section 103, so as to empower him as the agent of the whole body of owners to make an application for the purpose of the Record of Rights. Section 103 has, however, been modified by the Amending Act so as to empower one or more of the proprietors to apply for a Record of Rights. But, however that may be, it seems to us that the Subordinate Judge is in error in thinking that the existence of Clause (7). in Section 98 is a strong ground in support of the view that it was not the intention of the Legislature to confer upon a common manager the right to bring a suit of this kind, or any suit whatever.

5. The next question that demands our consideration is whether the common manager could institute the suit without the sanction of the District Judge. As bearing upon this question we have to refer to Section 100 of the Act, and the rules which the High Court has framed in accordance with that section. It provides: 'The High Court may, from time to time, make rules defining the powers and duties of managers under the foregoing Section.' Rule 3 of the rules framed by the High Court lays down that 'No manager shall have power to sell or mortgage any property, nor shall he grant or renew a lease for any period exceeding three years, without the express sanction of the District Judge,' and so forth. Then comes Rule 4---'The manager shall apply for the sanction of the District Judge to any act which may involve extraordinary expense.' Rule 5 provides that 'No manager shall have power to compromise any suit or relinquish any claim without the express sanction of the District Judge.'

6. These rules have the force of law and it seems to us, having regard to Rule 4, that the manager was bound to have applied to the District Judge for sanction before bringing a suit for account and recovery of moneys that may be found due from the defendant, because the bringing of such a suit would certainly involve extraordinary expense, and so the manager did apply to the Judge for such sanction. We find that on the 7th January 1898 an application was made by Mr. Sandys, the ex-manager, for return of the security that he had deposited. Upon that, the then District Judge ordered as follows:

I will put this matter off till 2nd-February, If no suit is instituted by that date I will order the security to be returned.

7. On the 31st January 1898 the following application was made by the plaintiff, the common manager, to the District Judge:

8. 'That as it is necessary to bring a suit against Mr. E. F. Sandys, late manager of Durgacharan Taluk, on behalf of the proprietors of the said Taluk, for accounts and money and as the plaint has already been drawn up, the proprietors wish your petitioner to bring the suit and defray the cost of the said suit from the estate fund, but he is unable to do so unless ordered by your Honour. Therefore, respectfully the petitioner solicits your permission to bring the suit and to defray the costs of the same from the estate fund. The valuation of the suit is at present put down as Rs. 5,982.15-0. Your petitioner as in duty bound shall ever pray.' Upon this petition the following order was recorded by the then District Judge: 'it does not appear that my sanction is necessary; the manager can act on his own initiative.' The manager then instituted this suit.

9. Later on we find that, the District Judge recorded the following order:---'I am informed to-day that a suit has been instituted against Mr. Sandys for recovery of moneys received by him as manager; t till the suit is decided, it would not be proper to return the security (that is, the security deposited by the ex-manager). Let this application be struck off the file.' So that the District Judge was fully cognizant of the steps that were being taken by the common manager for the purpose of recovering what he considered to be due to the estate. The learned Judge did not say to him: 'You must not bring, or go on with the suit and I do not authorise you to incur the expenses for bringing such a suit.' On the contrary he passed orders practically allowing the plaintiff to go on with the suit, though under a mistaken notion. If that is the correct view to take, it would seem that the requirements of Section 98 and the rules framed by the High Court under Section 100 were substantially complied with. The Section 98, as already mentioned, provides that a common manager, subject only to the control of the District Judge, may, for the purpose of management, do all acts which the co-owners jointly, might perform. It was quite open to the Judge to disallow the application that was made by the plaintiff on the 31st January 1898, or to prohibit him from continuing that suit when the matter was distinctly brought to his notice; bat, as I have already said, he practically acquiesced in the suit being brought, and in allowing it to go on. It may, no doubt, be said that the Judge did not exercise, or rather declined to exercise, any control in the matter which was brought to his notice. Yet it seems to me that it does not really affect the question in the present case, because the law allows the common manager to do every act in connection with the management, only subjects to the control of the District Judge, if he chooses to exercise such control---and the common manager, so far as he was concerned, complied with what Rule 4 directs. I am of opinion, as already indicated, that the requirements of the law and rules framed by the High Court were substantially complied with in this case and that the suit was maintainable.

10. For these reasons we are of opinion that the decree of the Court below dismissing the suit should be set aside, and the case sent back to the Subordinate Judge for trial upon the merits.

11. Costs will abide the result.

Geidt, J.

12. I concur with my learned brother in the order to be passed in this case, and generally in the reasons stated by him for passing that order. I only wish to add that though I agree with him in thinking that Section 98 of the Bengal Tenancy Act confers on a common manager the power to bring against an ex-manager a suit for papers snd accounts, I am doubtful whether the effect of Rule 4 framed by the High Court under Section 100 of the Act is to withdraw that power unless the common manager first obtains the sanction of the District Judge.

13. The rule runs as follows: 'The manager shall apply for the sanction of the District Judge to any act which may involve extraordinary expense.' It is not framed in the negative like the rule which immediately precedes and the rule which immediately follows it. Rule 3 lays down that: 'No manager shall have power to sell or mortgage any property nor shall he grant or renew a lease for any period exceeding three years without the express sanction of the District Judge, etc.' Rule 5 lays down that 'No manager shall have power to compromise any suit or relinquish any claim without the express sanction of the District Judge.' The effect of these two rules is clear and unmistakable; the acts forbidden by these rules are null and void ab initio, and the parties to such transactions are in the same position as though the transaction had never taken place. Can we attribute the same effect to Rule 4

14. It is obvious, I think, that a similar result does not necessarily follow on all infringements of Rule 4. If a manager spends extraordinary sums without the sanction of the District Judge, I take it that those sums could not be recovered from the person to whom they have been paid on the ground that this sanction had not been obtained. Rule 4 is a check on expenditure and the only necessary con-sequence of the infringement of the rule could, in my opinion, be to make the manager liable for all expenses improperly incurred. Take for instance a concrete ease, where a manager without the District Judge's sanction brings up at great exposes from Calcutta Counsel to conduct a suit. Counsel would be entitled to his fees from the manager, but the manager, if the District Judge disapproved of his act, would be personally liable for those fees. In the same way a manager, who, without the sanction of the District Judge, institutes a suit which requires that sanction on the ground of its involving extraordinary expense, would be liable personally for all sums thus improperly spent The check contemplated by the rule is fully met by imposing this penally on the manager, and the penalty is applicable to all breaches of it. But if you go further and say that a suit instituted by a manager without the sanction of the District Judge is not maintainable and must be dismissed, you add a second consequence which can only be imposed on a few breaches of the rule, you do not subject the manager to any penalty but you may subject to a severe penalty the proprietors who may be no way concerned with the breach.

15. For the reasons above given I am inclined to hold that Rule 4 does not even by implication lay down that a suit which requires the sanction of the District Judge, must be dismissed if instituted without such sanction. When powers conferred by law are defined by rules, the rules, in my opinion, should not be interpreted as imposing any restriction on those powers, except such as is in terms expressed or cm be clearly inferred from the wording used.


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