Nasim Ali, J.
1. This is an appeal by the plaintiff in a suit for possession, damages and for mesne profits. The plaintiff's case, briefly stated, is as follows: The disputed land measuring about 1 bigha 15 cottas in area is the Debuttar property of Sri Sri Sridhar Jiu Thakur of the Boys of Tajpur in the District of Howrah. The members of the Roy family are many and four elderly members of the four main branches of the family jointly look after the Debuttar estate, and carry out litigations in respect of the same. If any property appertaining to the Debuttar estate is to be leased out the managing shebaits obtain the consent of all the shebaits residing at Tajpur, and after publication of notice and announcement by beat of drum settle the same. One Golok Moira and his descendants were Chakran tenants of the disputed land under the Debuttar estate. The family of the Moiras gradually became extinct and the last holder surrendered the land and left the village. The land thereafter remained in the khas possession of the Thakur. Defendant 2 was temporarily entrusted with the supervision of the work of the gomasta of the Debuttar property. Taking advantage of his position he got a kabuliyat secretly executed by his own relation, defendant 1, on 8th Baisakh 1336 B.S. in the name of defendants 3, 4 and 5 and the late Lalit Mohan Roy, the four managing shebaits of the Debuttar estate, without their consent and knowledge.
2. The other shebaits including the plaintiffs were not aware of this settlement. The kabuliyat was registered on 17th May 1929. Defendant 2 thereafter erected temporary huts on the disputed land and is illegally possessing the same. The rent fixed in the kabuliyat is a nominal rent and the term of the kabuliyat is indefinite. The plaintiffs never accepted defendant 1 as tenants; nor did they authorise the gomastha of the Debuttar estate to grant dakhilas to him. Defendant 2 being himself a shebait acted, in breach of trust, in taking the kabuliyat in the name of defendant 1. The kabuliyat is therefore void. As the shebaits are numerous and as it is not possible to serve the summons on all the shebaits the suit has been brought by two of the shebaits on behalf of the Thakur, under the provisions of Order 11, Rule 8, Civil P. C. The defence of defendants 1 and 2 is as follows: The majority of the members of the Roy family do not reside at Tajpur. As it is not possible to obtain consent of all the shebaits in matters relating to the management of the Debuttar estate the practice is to entrust one shebait residing at Tajpur to look after the Debuttar property. Before any Debuttar property is leased out, his duty is to consult all the shebaits residing at Tajpur and to announce it by notice and beat of drum. The documents however are taken in the names of four persons representing the four main branches of the Roy family. Golak and his descendants held the disputed land at a money rent of Rs. 3. The land became khas after the extinction of Golak's family and in spite of best efforts no tenant was available. At the time of the settlement of the disputed land one Ganesh was entrusted with the supervision of the Debuttar estate.
3. There was a pressing need for money for meeting the expenses of many litigations concerning the Debuttar estate. The shebaits repeatedly asked Ganesh to let out the land in kaimi right by taking selami. After consulting defendants 3 to 5 and Lalit Mohan Roy and other shebaits residing at Tajpur, there was publication of notice and announcement by beat of drum about the intended settlement. Bibhuti Roy, son of defendant 2, offered the highest bid, paid a selami of Rs. 201 and took the bandobast at a rental of Rs. 5 in the name of defendant 1; and in accordance with the practice a kabuliyat was taken in the name of the representatives of the four branches of the family. With the money obtained as selami Ganesh met the costs of the litigation relating to the Debuttar property without any objection from any of the Shebaits. The settlement had thus benefited the Debuttar estate. Bibhuti was subsequently added as defendant 2- Ka. He filed a written statement supporting defendants 1 and 2. The other defendants did not contest the suit. The findings of the trial Court are these: (1) No litigation was pending at the time of the settlement. (2) There was no want of money. (3) The practice regarding the settlement of Debuttar land was not followed at the time of settlement. (4) All the managing Shebaits did not consent to the settlement. (5) No selami was paid. (6) The kabuliyat was taken secretly and the settlement was not at all bona fide. On these findings the suit was decreed by the trial Court.
4. Defendant 2-Ka appealed to the lower appellate Court. The learned Additional Subordinate Judge who heard the appeal came to the conclusion that there was legal necessity for granting the permament lease on the following facts: (1) Some rent suits were pending in which the deity was the plaintiff. (2) An execution case in which the deity was the decree-holder was also pending. (3) Money was required for the conduct of the above cases and the gomastha in charge of them was making repeated demands for money. (4) Less than one rupee was in the coffer of the deity. He also found that the selami was paid as alleged by the defendants; that the receipt of the selami was acknowledged by the four managing shebaits and nine other shebaits by Ex. G; that the plaintiff was present at the time of the settlement and that he was one of the intending lessees; that the plaintiff had failed to show that any other shebait was left out or not consulted that the procedure obtaining in the Debuttar estate in making settlement of land was followed and that the entire body of shebaits residing at Tajpur for the time being made the settlement. He accordingly allowed the appeal and dismissed the suit with costs. The plaintiffs appeal to this Court.
5. The first contention of the learned Advocate for the appellant is that Ex. G is not admissible in evidence inasmuch as it is not registered in accordance with the provisions of the Registration Act. By Section 17 (1) (c), Registration Act, a non-testamentary instrument which acknowledges receipt of payment of any consideration on account of creation, declaration, assignment limitation or extinction of any such right, title or interest is compulsorily registrable. Ex. G is a receipt which acknowledges receipt of Rs. 201 as selami for a permanent lease of the disputed land. It therefore required registration. It is, therefore, not admissible in evidence to prove that any consideration was paid as selami for the permanent lease alleged to have been granted by the shebaits. The next point urged by the learned Advocate for the appellant is that on the facts found by the learned Judge the lease cannot be said to have been granted for legal necessity.
6. 'To create a new and fixed rent for all time to come, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent, from time to time would be a breach of duty in a shebait:' See the case in Maharani Shibeswaree Debia v. Mathura Nath (1869-70) 13 M I A 270 at p. 275. But there would be no breach of duty if the shebait is constrained to do so by unavoidable necessity. The principle applies equally to agricultural lands and building sites in villages: see the case in Palaniappa Chetty v. Deinasi Kamony Pandara 1917 P C 33. The authority of a shebait is analogous to that of a manager of an infant heir. It can only be exercised rightly in a case of need or for 'the benefit of the estate.' The actual pressure on the estate, the danger to be averted, or the benefit to be conferred, are the criteria to be regarded: see the cases in Prasanna Kumari Debya v. Golab Chand Babu (1876) 2 I A 145 and Hanuman Pershad Pandey v. Babooee Munraj Koonwaree (1854-57) 6 M I A 393. It is not possible to state precisely the meaning of the words 'benefit to the estate.' The reported cases show that preservation of the estate from extinction, defence against hostile litigations affecting the estate, protection of the estate or portions of it from injury or deterioration by inundation, have been taken as 'for the benefit of the estate.' The shebait is not entitled to sell a Debuttar land solely for the purpose of investing the sale proceeds for a larger income than what was being derived before.
7. Again in order to show imperative necessity compelling the shebait to grant a permanent lease at a fixed rent it must be found that the entire amount raised as selami was necessary to meet the actual pecuniary pressure on the estate. It must also be shown that the amount actually required for meeting the pressing need of the estate could not be raised by a lease for a term or even in perpetuity at a variable rent. The findings of the learned Judge do not show what was the amount which was actually necessary for meeting the costs of the litigation pending at the time. It has not been found that there was no immediate prospect of getting sufficient money from the rents and profits of the debuttar estate and that unless money had been immediately raised the rent suits and the execution case would have been dismissed. There is also no finding to the effect that the actual amount necessary could not be raised by giving a lease for a term or in perpetuity with variable rent. The learned Judge, in my opinion, did not correctly appreciate the real nature of the controversy between the parties on this point.
8. The last contention of the learned Advocate for the appellant is that in reversing the findings of fact arrived at by the trial Court the learned Judge did not at all consider the reasons given by the trial Court and that he did not at all apply his mind to the evidence on which the trial Court had based its findings. This contention is well founded. As regards the question whether the practice prevalent in connexion with the granting of settlements was followed by the shebaits in the present case the trial Court in a very careful judgment, after considering all the relevant evidence, came to the conclusion that the practice was not followed. The learned Judge without adverting to the reasons given by the trial Court, and the evidence on which it relied, disposed of the matter in one solitary sentence with the words: 'The procedure obtaining in debuttar estate of the plaintiff deity in making settlement of land was also followed in this case.' His findings on other facts are not also satisfactory. He did not discuss all the relevant evidence and did not give any reasons for his inability to agree with the trial Court in its conclusion on these facts which depended mostly on the oral testimony of certain witnesses whom the trial Court heard and whom he had no opportunity of hearing. In my judgment there was no proper hearing of the appeal by the lower appellate Court. The result, therefore, is that this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and the case is sent back to that Court for a rehearing of the appeal in the light of the observations made above. Costs will abide the result.