Prinsep and Beverley, JJ.
1. The plaintiff, who jointly with others holds a zemindari interest in certain lands cultivated as a tea garden, sues the defendant to set aside a pottah granted by Kalinarain Singh, his guardian under Act XL of 1858, while he was a minor, and for ejectment in respect of his eight-anna share. He states that his guardian, without authority obtained from the Court, granted to the defendant in Magh 1281 (January 1875) a lease for twelve years with a condition of renewal, his power to grant any lease under such circumstances being limited by Section 18 of the Act to granting a lease for the term of five years. He states further that he attained majority in Bhadro 1289 (September 1882), that is to say about 7 1/2 years after the date of the lease, and he brings the present suit in August 1885 (Srabun 1292), after giving on the 23rd Joist 1290 (5th June 1893) notice to the defendant to relinquish possession of his share of the land within one month.
2. The Subordinate Judge has dismissed the suit on the preliminary ground that the plaintiff, as one of several co-sharers in the zemindari, is not entitled to maintain this suit in the absence of his co-sharers. He has held that the defendant is not a trespasser under the circumstances, seeing that he entered into possession of the land under a pottah granted by the plaintiff's guardian, and that pottahs were granted by the other co-sharers, and that he has held peaceful and undisturbed occupancy for more than twelve years.
3. In appeal it is contended that, as regards the plaintiff's eight anna share of this property, the defendant is a trespasser, inasmuch as the pottah which he sets up was granted under Do legal authority and is therefore void, and that consequently the plaintiff is entitled to sue alone to recover joint possession of his share of the lands which have been leased to the defendant without his consent. It is admitted that since he attained majority the plaintiff has in no way recognised the defendant as his tenant and in lawful possession. It is also contended that, even if the lease granted by the certificated guardian of the plaintiff be held to be good for five years, it was a separate lease, and that therefore the plaintiff was competent to exercise, in respect to the defendant, all the rights of a landlord so as to eject him, if necessary, without consulting the other co-sharers in the zemindari.
4. In respect to the first objection we are of opinion that this lease granted by the certificated guardian without authority from the District Judge cannot, under Section 18 of Act XL of 1858, be regarded as a valid instrument, even for the period of five years for which a certificated guardian is competent to grant a lease. We must hold that, under the circumstances of this case, that instrument is in all respects invalid. The lease in question is a lease for 12 years in the first instance, but renewable on the expiration of that period, apparently in perpetuity, on an assessment at the pergunnah rate of rent. It is moreover a transferable lease, and it was specially granted for the purpose of making a tea garden. We are unable to hold therefore that it was ever the intention of the parties that it should operate as a lease for a term of years, or that it could by any possibility operate as such. On the contrary it was evidently intended that it should operate as a permanent transferable lease, and such a lease a certificated guardian has no authority to grant without the permission of the Court. Section 18 of the Ant (XL of 1858) says distinctly: 'But no such person shall have power to sell or mortgage any immoveable property, or to grant a lease thereof for any period exceeding five years, without an order of the civil Court previously obtained.' It has been held in several cases cited Dabee Dutt Sahoo v. Subodra Bibee 2 C 283 : 25 W.R. 449 : Sikher Chund v. Dulpulty Singh 5 C. 363 : 5 C.L.R. 374 : Buckraj Ram v. Ram Kishen Singh V. C.L.R. 345 : Mauji Ram v. Tara Singh 3 A. 852 that a sale or mortgage made in contravention of this provision of the law is absolutely void. We have not been referred to any decision on this point in respect of a lease for a term exceeding five years, and it is possible that there may be circumstances under which a lease for more than five years, given by a certificated guardian without the sanction of the Court, might be held good and valid for the term of five years for which he was competent to grant it. In the present instance, however, the lease was not a lease for a term, but practically a permanent alienation of the landlord's estate subject to a rent charge; and having regard to the stringent provisions of the statute, we are of opinion that it was a transfer of a character which the guardian was expressly forbidden to make without the previous sanction of the Court, and, that being so, that it is a nullity. It was made in direct contravention of the terms of the Act, and is therefore absolutely void. In support of this conclusion we may refer to the two cases of Roe d. Brune v. Prideaux 10 East 158 and Doe d. Biggs v. White 2 D. and R. 716 referred to in Woodfall's Landlord and Tenant, p. 184 (12th Ed.), in which leases granted in excess of the power vested in the lessor were declared to be void ah initio, and not void only as to the excess. The lease in the present case was in the nature of a permanent alienation of the property, and we have little hesitation in saying therefore that it was a transaction positively forbidden by the statute, and therefore void.
5. It has been argued by Mr. Chakravarti for the defendant-respondent that, Assam being a scheduled district, Act XL of 1858, was not in force in that province in February 1875, when the lease in question was executed. That objection is, in our opinion, untenable. Before the passing of Act VIII of 1874, Assam formed a portion of the Presidency of Fort William in Bengal, and the laws in force in that Presidency extended to Assam. Among these laws was Act XL of 1858. The province of Assam was separated from Bengal by Act VIII of 1874, and by Act XIV of 1874 it was declared to be what is described as a scheduled district. But as regards the laws then in force in Assam, they continued to be unaltered until, by a notification made under the provisions of Section 3 of Act XIV of 1874, a declaration was made (a) extending the Act itself to the province of Assam, under the provisions of Section 1, and (b) setting out what enactments were or were not actually in force in that province. There is nothing in the Act itself to show that any enactment previously in force in the scheduled districts ceased to be in operation merely by virtue of the passing of that Act. The Act itself was not to come into operation in any of the scheduled districts until it had been extended by a notification made under Section 3; and from an examination of the Government Gazette, we find that no such notification was made until 3rd November 1877, i.e., subsequent to the issue of the certificate in this case. This objection is therefore unsound. A further objection was raised by Mr. Chakravarti to the effect that, inasmuch as the certificate to Kalinarain Singh was not actually issued until after the execution of the lease, he was not at the time of granting that lease a certificated guardian under Act XL of 1858, and consequently was not restricted by the provisions of Section 18. But we think it is a sufficient answer to this argument to point out that the order for the issue of a certificate was made so far back as September 1868, and that from that date Kaiinarain appears to have acted as a certificated guardian and to have been recognized by the Court as such. So far as regards the question now before us, the evidence on the record goes to show that Kaiinarain granted the lease in question by virtue of the authority vested in him by Act XL of 1858.
6. It would appear that the day after the lease in question was executed by Kaiinarain Singh, the guardian of the plaintiff, a similar lease was executed in favour of the defendant by the three annas co-sharers, and some two years and a half later, a third lease was executed by the five annas co-sharer. All these leases were in the same terms, and they were to operate contemporaneously. They are what are known as jungleboori leases, that is to say, clearing leases, carrying no rent for the first three years and then fixing a rent at one and the same rate for such lands as on measurement might be found to have been occupied by the defendant for purposes of cultivation. They provide for the payment of rent to each co-sharer separately, and authorize each co-sharer to sue separately for his share of the rent without joining as parties the other co-sharers. They give the lessee a right of renewal at the expiration of the 12 years, and are declared to be heritable and transferable. It has been contended before us that under these circumstances the three leases must be considered as creating one joint tenancy under all the co-sharers, and that being so, that one of the co-sharers alone is not entitled to sue to eject the defendant who had been let into tenancy by the joint action of all the co-sharers. It is said that, the three leases being in identical terms and operating simultaneously, they must be taken to constitute one and the same tenancy. The reason why three separate documents were executed is, in this view, explained to be the facilitation of suing, if need be, for the co-sharer's separate share of the rent.
7. A large number of authorities have been cited to us on this point as follows:
Alum Manjee v. Ashad Ali 16 W.R 138; Hamilton v. Rughoo Nundun Singh 20 W.R. 70; Hulodhur Sen v. Gooroo Doss Roy 20 W.R. 126; Chundee Chowdhry v. Macnaghten 23 W.R. 386; Dinobundhoo Ghose v. Drobo Moyee Dossia 24 W.R. 110; Doli Sati v. Ikram Ali 4 C.L.R 63; Rasha Prasad v. Esuf 7 C. 414; Tulsi Panday v. Bachu Lal 9 C. 596 : 12 C.L.R. 223; Reasut Hossein v. Chorwar Singh 7 C 470; Kali Chandra Singh v. Rajkishore Bhuddro 11 C. 615.
8. All these authorities go to establish this proposition generally that, although one of several co-sharers may sue to eject a trespasser so far as his interest in the land is concerned, he cannot alone eject a tenant who has been put upon the land by all the co-sharers and is still holding under them all.
9. The contention of the tenant-respondent in this case is that he was let into possession by the joint action of all the co-sharers, and that he cannot therefore be ejected at the suit of the plaintiff alone. We have, however, held that the lease granted on behalf of the plaintiff was a nullity, and the defendant cannot therefore derive any benefit from it. As regards the plaintiff's share at least, he must be regarded as a trespasser. This is in accordance with the case of Hamilton v. Bugoo Nundun Singh 20 W.R. 126. If again the three leases are to be construed as one and the same, it might be a question whether the defendant could claim to hold even as against the other co-sharers. We think, however, that, having regard to the fact that three separate documents were executed, and that they were executed on three different dates, that they stipulated for the separate payment of each co-sharer's share of the rent, and apparently gave to each co-sharer the right to measure and assess the rent in future independently of the others, the three leases must be held to constitute three separate tenancies, one of which might be avoided without affecting the others.
10. Holding, as we do, that the lease as regards the plaintiff-appellant's share was absolutely void, it is unnecessary to consider whether or not the notice alleged to have been served on the defendant was actually served, and whether it was a reasonable notice. In the view we take of the case no notice was necessary.
11. There are however other points in the case, for the determination of which it must be remanded to the lower Court. It is contended on the authority of Surut Chunder Chatterjee v. Ashutosh Chaterjee 24 W.R. 46 and Girraj Baksh v. Kazi Hamid Ali 9 A. 340, that the appellant should only be allowed to recover possession upon certain terms as to reimbursing to the defendant the cost of laying out the tea garden, &c;, no fraud or misconduct on the defendant's part having been alleged or proved. This matter formed the subject of the sixth issue, which has not been tried.
12. We therefore set aside the decree of the lower Court and remand the case under Section 562 of the Code for the trial of such of the remaining issues as may be found necessary, having regard to the remarks made by us in this judgment. The costs of this appeal will abide the result.