M.C. Ghose, J.
1. This is an appeal by the plaintiffs in a suit for recovery of arrears of rent and for enhancement of rent under Section 7, Ben. Ten. Act. The main question in appeal is whether the plaintiffs are entitled to enhance the rent under Section 7. The trial Court decided the issue in favour of the plaintiffs. In appeal the learned Subordinate Judge has decided the issue in favour of the defendants holding that the defendants' tenure is held at a fixed rent and not liable to enhancement under Section 7.
2. Upon hearing the learned advocates on both sides it appears that the tenure consists of land over 700 bighas in area. The defendants' predecessors obtained the tenure from the predecessors of the plaintiffs in the year 1855. Previously, before 1848, the estate was resumed by Government under Regn. 2 of 1819. Then it was settled to the plaintiffs' predecessors for a period of 20 years. Afterwards in March 1868 it was permanently settled with the plaintiffs' predecessors. Only a very small portion of the land had been brought under cultivation when the plaintiffs' predecessors leased the land to one Gopal Nandi at a rent of Rs. 9 per annum. The said Gopal Nandi surrendered the lease. Then it was leased to Madhusudan Poddar at Rs. 19 per annum. He also surrendered the lease. Then in 1855 it was leased to the defendants' predecessors at a rent of Rs. 22 per annum. In the patta and kabuliat, which were executed by the parties, it was stated that the tenancy was permanent and that there would be no increase or decrease of rent at any time; in other words that the rent be fixed for ever. In 1874 the tenants instituted a suit for damages against the landlords on the ground that the landlords had cut away certain trees, etc. The suit was compromised between the parties. The plaintiffs' predecessors admitted that the defendants' tenure was a permanent tenure. In order to put an end to disagreement between the parties the defendants agreed to an increase of rent by Rs. 19 making the rent payable hereafter at Rs. 41 per annum and it was stated that the rent of Rs. 41 would never be increased or diminished. The present suit was instituted in 1932.
3. If the matter would be treated as one of contract between free parties then the defendants' claim would be correct that the rent of the tenure is fixed for ever. It is however proved that the property belongs not to the plaintiffs but to a certain idol, Sree Sree Krishna Rai Jiu, and the plaintiffs are shebaits of the said idol. It is urged that as shebaits of the deity their predecessors had no right to grant a permanent tenure at a fixed rate for ever. The law on the matter, which has been stated in many reported cases by their Lordships of the Judicial Committee, is that the power of a shebait of an idol to make an alienation is a limited power. Ordinarily a shebait cannot grant a permanent lease at a fixed rent, but he may do so in case of unavoidable necessity. On one side it is urged that apart from such necessity, to create a new and fixed rent for all time, 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 the shebaits: Abhiram Goswami v. Shyama Charan Nandi (1909) 36 Cal 1003. It is urged that in this case upon the evidence it cannot be held that the predecessors of the plaintiffs were under any unavoidable necessity to grant a permanent tenure at a fixed rate for ever. On the other side it is urged that where the validity of a permanent lease granted by a shebait comes in question a long time after the grant, so that it is not possible to ascertain what were the circumstances in which it was made, the Court should assume that the grant was made for necessity: Bawa Magniram Sitaram v. Kasturbhai Manibhai 1922 P C 163. Noting the principle of law we are to consider the facts of the present case. The learned Subordinate Judge noted his opinion thus:
I am satisfied that this lease of 1854 was the best bargain then possible for the idol and that it was absolutely necessary for the very preservation of the property. Thus I find there was justifying necessity.
4. It is urged for the appellant that this conclusion of the learned Subordinate Judge does not follow from the facts of this case. The lands were over 700 bighas in area. Only a small portion had been brought under cultivation at the time of the lease in 1855. It is a mere assumption that a fixed rent of Rs. 22 per annum was the best bargain possible for the idol. All that is in evidence is that previous to that the land had been leased to one tenant at Rs. 9 per annum and subsequently to another tenant at Rs. 19. Both of them had surrendered the lease. From this it is urged for the respondents that Rs. 22 was the highest rent that the land could bear at the time. Accepting the argument that in 1855 Rs. 22 was the best rent which the shebaits of the idol could obtain, the question still is whether there was any necessity for them to contract that the rent of Rs. 22 would be fixed for ever, that their successors would be precluded in future time to enhance the rent though such enhancement would be fair and equitable. It does not appear that any premium was asked for or paid in 1855. Further, when there was a dispute between the parties barely 20 years after the lease of 1855, the defendant agreed with the plaintiff that the rent would be enhanced by Rs. 19. Though the rent fixed in 1855 was adequate at the time, the parties voluntarily agreed to increase it to Rs 41 in 1874. It does not appear that, though the rent fixed in 1855 and 1871 were the best bargain the shebaits could make at the time, there was any necessity to give up for ever the benefit of an augmentation of the rent. The cases where a mokarari patta of a Debutter land has been upheld as against the successor of the shebaits were all cases where the shebaits required the money either for the repair and completion of a temple for which no other funds could be obtained or for a purpose which fell into the category of protecting the estate from injury or deterioration: Monohar Das v. Tarini Charan Nandi 1929 Cal 612. In the present case there is nothing to show that there was any such necessity for granting a fixed rent for ever.
5. On the facts of the case I am of opinion that the conclusion of the Court of appeal below is wrong and the conclusion of the trial Court is correct, that the rent of the tenure may be lawfully enhanced under Section 7. The Court of appeal below found that the suit was defective inasmuch as all the persons who are shebaits did not join as plaintiffs in the suit. The facts are that there are a great number of shebaits, but they periodically select six of them to represent the body of shebaits and those six persons who were duly elected by all the shebaits instituted the present suit. These were showed their bona fides by getting their names registered in the Collectorate as the owners. In the circumstances it cannot be said that the suit is bad for defect of parties. The question then is what is the fair and equitable rent to which the plaintiffs are entitled. The trial Court found that the defendants tenure-holders got Rs. 200 a year from the tenure. That Court thought fit to enhance the rent to Rs. 125. The increase appears inequitable towards the tenants who have for over 60 years paid at a rent of Rs. 41. Taking Rs. 200 to be the gross collection of the tenants 40 per cent of the same may be allowed as fair rent to the landlords and the remaining 60 per cent be allowed to the tenants for collection charges and profits. The fair rent in my opinion should be Rs. 80 per annum and this enhancement will take effect from the beginning of the present Bengali year, namely 1343.
6. The arrears of rent were claimed for the period of two months only. This is in violation of Section 53, Bengal Tenancy Act, under which, in cases where there is no agreement or established usage, the rent is to be paid in four equal instalments falling due on the last day of each quarter of the agricultural year. The learned advocate for the respondents stated that they would not object to the decree for rent provided this is not taken as a precedent for claiming rent except as laid down in Section 53. In the result the rent for the two months will be decreed, but the plaintiffs will not get any interest or compensation for the same. The appeal is accordingly allowed. The plaintiffs appellants will get their costs in all the Courts. Leave to appeal is refused.