Skip to content


Maharaja Probirendra Mohun Tagore Vs. State of Bihar and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberSuit No. 4033 of 1953
Judge
Reported inAIR1959Cal767
ActsTenancy Laws; ;Bihar Land Reforms Act, 1950 - Sections 1, 2 and 4; ;Bengal Settled Estate Act, 1904 - Sections 10 and 29; ;Constitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 20
AppellantMaharaja Probirendra Mohun Tagore
RespondentState of Bihar and anr.
Appellant AdvocateS. Banerji, Adv.
Respondent AdvocateAdv. General
DispositionSuit dismissed
Cases ReferredMoolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd.
Excerpt:
- lahiri, j.1. this suit has been placed before the special bench under a report of p. b. mukharji j. under chapter v, rules 2 and 3 of the original side rules as it involves many important questions of far reaching consequence.2. the plaintiff maharaja probirendra mohan tagore asks for a declaration that his right, title and interest in the settled estate created under a deed of family settlement dated november 18, 1904 under the bengal settled estates act, 1904 (bengal act iii of 1904), have not been affected by notification no. 310 l.r./zam dated the 30th october, 1952, issued by the revenue department of the government of bihar under sub-section (1) of section 3 of the bihar land reforms act, 1950 (bihar act xxx of 1950) and for a further declaration that the said notification is.....
Judgment:

Lahiri, J.

1. This suit has been placed before the Special Bench under a report of P. B. Mukharji J. under Chapter V, Rules 2 and 3 of the Original Side Rules as it involves many important questions of far reaching consequence.

2. The plaintiff Maharaja Probirendra Mohan Tagore asks for a declaration that his right, title and interest in the settled estate created under a deed of family settlement dated November 18, 1904 under the Bengal Settled Estates Act, 1904 (Bengal Act III of 1904), have not been affected by notification No. 310 L.R./ZAM dated the 30th October, 1952, issued by the Revenue Department of the Government of Bihar under Sub-section (1) of Section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) and for a further declaration that the said notification is invalid and inoperative and does not bind the plaintiff and for certain other incidental relicts.

3. The plaintiff's case as made in the plaint is that on the 18th November, 1906, his paternal grandfather Sir Jotindra Mohun Tagore executed a deed of family settlement in respect of immovable properties situate within and outside the jurisdiction of this Court; that by this deed of family settlement Maharaja Sir Jotindra Mohun Tagore was the first tenant for life, his son Maharaja Sir Prodyot Kumar Tagore was the second tenant for life and the plaintiff the third tenant for life; that the said deed of family settlement was approved by the then Government of Bengal and is still valid and subsisting. The State of Bihar purporting to act under a colourable piece of legislation called the Bihar Land Reforms Act of 1950, threatens to take away the plaintiff's properties constituting a part of the aforesaid estate, by a notification dated the 30th October, 1952 published in Bihar Gazette Extraordinary, on the 26th November, 1952. The plaintiff claims that the State of Bihar has no authority to take away the plaintiff's interest in the said estate. The State of Bihar has been impleaded as defendant No. 1 in the suit, the State of West Bengal has also been impleaded as the second defendant to enable the court to 'effectually and completely adjudicate upon all the questions involved in the suit'.

4. The suit was contested by two sets of written statements filed by the State of Bihar and also the State of West Bengal, In its written statement the State of Bihar pleaded that the Bihar Land Reforms Act is not a colourable piece of legislation and that as a result of the notification issued under Section 3 (1) of that Act the properties mentioned in the notification vested in the State of Bihar. It further pleaded that as a result of the notification the plaintiff has no longer any right in the properties comprised in the notification and that he has only the right to receive compensation according to the provisions of the Bihar Land Reforms Act of 1950. An additional plea was also raised about the jurisdiction of the Court to entertain the suit on the ground that the suit involves questions of title to lands which are not only wholly outside the jurisdiction of the Court but also wholly outside the State of West Bengal. By a separate written statement the State of West Bengal pleaded that the plaintiff has no cause of action against it and that its presence was not necessary for the adjudication of the dispute regarding lands in Bihar. It appears from the report of P. B. Mukharji, J., that upon the aforesaid pleadings by consent of counsel, the Court settled the following issues :

'1. Has the Court jurisdiction to try the suit?

2. Does the Bihar Land Reforms Act, 1950 at all affect estates under the Bengal Settled Estates Act of 1904 but lying partly within the State of Bihar?

3. Are the notifications and notices thereunder mentioned in the plaint valid?

4. Has the estate in suit vested in the State of Bihar by virtue of the notifications dated the 30th October, 1952?'

5. At the trial no evidence was adduced by the parties and all the facts alleged in the plead-ings were admitted and the parties went to trial only on tile questions of law raised by the aforesaid issues.

6. Although the constitutional validity of the Bihar Land Reforms Act was challenged by the plaintiff in his plaint it was not and could not be pressed before us. Mr. Banerjee appearing for the plaintiff stated that he was not questioning the validity of the Bihar Land Reforms Act nor was he questioning the validity of the notification dated the 30th October, 1952 on the ground that it was not in accordance with the provisions of the Act and he stated that he was questioning the validity of the notification dated the 30th October, 1952, Only in so far as it purported to affect the interest of the plaintiff in the touzis mentioned in the notification. The result is that issues Nos. 2, 3 and 4 really merge into only one issue and (sic) whether the Bihar Land Reforms Act of 1950 affects the title of the plaintiff created by the deed of family settlement with the approval of the then Government of Bengal under the provisions of the Bengal Settled Estates Act of 1904. I, therefore, propose to take up the consideration of issues Nos. 2, 3 and 4 together.

7. The Bengal Settled Estates Act (Bengal Act (II of 1904) was passed on the 9th March, 1904.

Its object is to facilitate the making of family settlements of estates by land-holders in Bengal. According to Section 2 of the Act, Estate includes immovable property, money and securities for money and any jewellary or other immovable property which should in the opinion of the State Government be treated as heirlooms. Section 3 authorises a land-holder to apply for permission to make a settlement of an Estate under the Act on certain terms and conditions. Section 6 empowers the State Government to reject any application under Section 3. Section 8 authorises the State Government either to reject the application after the enquiries contemplated by Section 7 or to grant permission to make the proposed settlement. Section 10 is an important section which provides that every settlement under the Act must provide that the estate shall be held for life by the settlor as the first tenant for life, thereafter by the eldest or only son of the first tenant for life as the second tenant for life and thereafter by the eldest or only son of the second tenant for life as the third tenant for life. The section lays down further rules for devolution of the estate after the life of the third tenant for life which are not really material for the purposes of the present suit because the plaintiff in the present case is the third tenant for life under the deed of family settlement executed by his paternal grandfather. Section 24 authorises a tenant for life to apply to the State Government for permission to revoke settlement and also authorises the State Government to grant or refuse permission to revoke it. Under section 29, a tenant for life of a settled estate may sell the whole or any part of the estate with the previous written sanction of the Civil Court. Section 30 places certain restrictions upon the powers of the tenant for life to grant leases. Section 32 provides that no settled estate shall during the life of a tenant for life be sold in execution of a decree of a Civil Court but the Court may on the application of the decree-holder appoint a Receiver for the purpose of recovering the decretal dues. Section 33 prohibits sale of a settled estate for realisation of arrears of land revenue under the Bengal Land Revenue Sales Act of 1859 except with the permission of the State Government; and Section 34 provides that if the Sale of a settled estate is not sanctioned by the State Government for arrears of land revenue the Collector may attach the estate and thereupon the Collector will be entitled to receive all rents, moneys and to manage the estate for such period as may be necessary for the recovery of the arrears of land revenue. The plaintiff contends that the deed of family settlement executed with the approval of the State Government under the Bengal Settled Estates Act creates a special class of property to the exclusion of all other Acts to the contrary; it provides for the vesting of the property in the family for at least three generations and places considerable restrictions on the power of each tenant for life to sell or grant leases in respect of the estate.

8. The first point raised by Mr. Banerjee is that the special rights created by a special Act like the Bengal Settled Estates Act of 1904 cannot be repealed by implication by a subsequent general Act like the Bihar Land Reforms Act of 1950 and he relies upon the doctrine of generalia specialibus non derogant. He also relies upon the well-known observations of Lord Selborne in Se-ward v. The Vera Cruz, (1884) 10 AC 59, to the following effect:

'Where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation that earlier or special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so.'

He also relies upon the decision of the House of Lords in the case of Edward Garnett v. William Bradley, (1878) 3 AC 944 at pages 952-953. There is no dispute before us as to the principle formulated by Lord Selborne in Seward's case, (1878) 3 AC 944, or by Lord Hatherley in (1878) 3 AC 944, but the controversy is about the application of that rule to the facts of the present case.

9. The object of the Bihar Land Reforms Act, as far as if can be gathered from its preamble is to provide for the transference to the State of the interests of 'proprietors' or 'tenureholders' in land and of mortgagees or lessees of such interest including interest in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals. This object is sought to be achieved by Sections 3 and 4 of the Act. On behalf of the plaintiff it is contended that so far as the plaintiff is concerned the Legislature has failed to achieve its object for two reasons (a) because the plaintiff is not a proprietor within the meaning of the Act and (b) because the Bihar Land Reforms Act contains no express provision repealing the Bengal Settled Estates Act of 1904. In my opinion both the reasons given by the learned counsel for the plaintiff are untenable.

10. According to Section 2 Clause (o) of the Act a 'proprietor means a person ..... owning for his own benefit an estate or part of an estate' and according to Section 2 Clause (i)

'estate means any land included under one entry in any of the general registers of revenue paying lands and revenue free lands prepared and maintained under the law for the time being in force by the Collector of a district'.

The schedule annexed to the notification published in the Bihar Gazette Extraordinary on November 26, 1952, which is not challenged by the plaintiff shows the plaintiff's name as the proprietor in respect of lands comprised in several touzies enumerated, in the fourth column of the schedule and the share of the plaintiff as proprietor is shown in the sixth column. Mr. Banerjee, appearing for the plaintiff contends that the phrase 'owning for his own benefit' in Section 2 Clause (o) of the Act means owning in absolute right and does not include the interest of a life tenant as created under the deed of family settlement under the Bengal Settled Estates Act of 1904. I am not, however, prepared to accept this contention as correct. There is no reason for imposing any limitation on the general words used in Clause (o) of Section 2 of the Bihar Act and in my opinion the word 'owning' includes the interest of both an absolute owner and/or the interest of a limited owner as that of the plaintiff. I accordingly hold that the plaintiff is the owner of the estate within the meaning of the Bihar Act.

11. The next question is whether the Bihar Land Reforms Act contains an indication of a particular intention of repealing the provisions of the Bengal Settled Estates Act which are inconsistent with those of the Bihar Act although there is no express provision in the Bihar Act repealing the Bengal Settled Estates Act. On this question Section 4 of the Bihar Act which deals with the consequences of the vesting of an estate in the state is important. That section begins with the words 'notwithstanding anything contained in any other law for the time being in force or in any contract' the consequences enumerated in Clause (a) of that section will follow. The consequences are that with the publication of a notification under Section 3 declaring that the estates or tenures of a proprietor or tenure-holder specified .in the notification have passed to and become vested in the State together with all interests specified in Clause (a) of Section 4, such estates or tenures shall vest absolutely in the State free from all encumbrances and the proprietor or tenure-holder shall cease to have any interest in such estate or tenure. Section 3 of the Act authorises the State Government to publish the notification and Section 4 deals with the consequences of such publication. Under the express provisions of Section 4, that section will prevail notwithstanding the provisions of any other law or contract to the contrary. The effect of this non-obstante clause is to supersede the provisions of any other law to the contrary. It is hardly possible for the Legislature to enumerate by name all the previous legislations which it seeks to repeal by an Act like the Bihar Land Reforms Act and that is why a non-obstante clause like the one to be found in Section 4 of the Bihar Act is resorted to for the purpose of nullifying the effect of all previous legislations on the same subject. The conclusion, therefore, follows that by the language of Section 4 of Bihar Land Reforms Act the Bihar Legislature evinced a particular intention of superseding the effect of the Bengal Settled Estates Act of 1904. I accordingly hold that Section 4 of the Bihar Act must be given effect to in spite ol the provisions of the Bengal Settled Estates Act to the contrary.

12. The Bengal Settled Estates Act applies by its own force to the State of Bihar because sub-Section (2) of Section 1 of that Act provides that it extends to the State of West Bengal and Bihar and to that part of the State of Orissa which on the 9th day of March, 1904 was included in Bengal. The Bihar Legislature was accordingly competent to modify or amend such portions of the Bengal Settled Estates Act as it thought fit. It is not disputed that the Bihar Land Reforms Act was within the legislative competence of the Bihar Legislature because the subject dealt with by the Bihar Land Reforms Act is within the State List of the Constitution of India. Consequently the sovereign Legislature in exercise of its plenary power could amend a pre-existing law on the same subject. A very close paral- lel to the present case is to be found in the decision of the Judicial Committee in the case of Jagannath Baksh Singh v. United Provinces . There certain sanads conferring absolute rights to certain taluqdars of the United Provinces and confirmed by the Oudh Estates Act of 1869, were modified by the United Provinces Tenancy Act of 1939 and it was contended on behalf of taluqdars that the Provincial Legislature of the United Provinces was not competent to cut down the effect of the Oudh Estates Act of 1869. This argument was negatived both by the Federal Court of India and by the Privy Council on the ground that if a subject is within the provincial list the Provincial Legislature is competent to amend any previous law on the subject. It is true that this decision is one under the Government of India Act of 1935 but that fact makes no difference to the principle to be applied to cases- of this description because the provisions of the Constitution of India on this point are similar to the provisions of the Government of India Act of 1935. Even under the Constitution of India there are two decisions which lay down the same principle. In the case of Wasif Ali Mirza v. State of Bihar, (S) : AIR1957Pat390 , it was contended on behalf of the Nawab Bahadur of Murshidabad that the Bihar Land Reforms Act could not prevail over the Murshidabad Act which conferred certain special rights upon the Nawab Bahadur. But this argument was negatived by a Division Bench of the Patna High Court. The Murshidabad Act (Act XV of 1891) was passed by the Central Legislature for the purpose of confirming an indenture dated the 12th March, 1891 between the Secretary of State for India in Council and the Nawab Bahadur of Murshidabad whereby in consideration of the Nawab Bahadur's giving up his claim to the title of Nawab Nazim of Bengal, the Secretary of State for India in Council agreed to grant certain lands described in the indenture for the purpose of the maintenance of the position and dignity of the Nawab Bahadur. By Section 5 of the Murshidabad Act it was provided that all the properties mentioned in the indenture or any addition that may be made to those properties shall descend and be enjoyed 'for ever by the Nawab Bahadur of Murshidabad'. Before the Patna High Court it was contended that the rights created by Section 5 of the Murshidabad Act were rights in perpetuity which could not be interfered with by the Bihar Land Reforms Act, but the Patna High Court held that in view of the language of Section 4 of the Bihar Land Reforms Act, the rights conferred by Section 5 of the Murshidabad Act had been superseded. A similar case arose in this Court with regard to the effect of the West Bengal Estates Acquisition Act of 1953 upon the Murshidabad Act of 1891 where it was contended that the rights created by Section 5 of the Murshidabad Act were not affected by the West Bengal Estates Acquisition Act. In dealing with this contention Das Gupta C. J. with the concurrence of Bachawat J. made the following observations:

'The Legislature has not concealed its intention to give an overriding effect to the provisions of this Act over any provision in any other law or in any contract express or implied or any usage. It is difficult to understand why the Murshidabad Act should have such sanctity attached to it that it will be treated as outside the clear intention of expression by the Legislature. The Legislature having spoken in clear and certain terms it is not for us, the Court, to try to shield the Murshidabad Act from its effect.'

(See the decision in appeal from original order No. 282 of 1955 decided by Das Gupta C. J. and Bachawat J. on January 19, 1959, unreported.)

I would respectfully adopt the principles enunciated by Das Gupta C, J. in the passage quoted above and apply the same to the facts of the present case because, in my opinion, the Bengal Settled Estates Act of 1904 is in pari materia with the Murshidabad Act of 1891. Mr. Banerjee appearing for the plaintiff placed some reliance upon the fact that whereas in West Bengal Estates Acquisition Act, the non-obstante clause is the subject-matter of a separate section namely Section 3, in the Bihar Act it is not so. He also relies upon the fact that in the Bihar Act the non-obstante clause is not to be found in Section 3 of the Bihar Act which authorises the State Government to issue the notification but is present only in Section 4 which deals with the consequences of the publication of the notification. With regard to the first point it seems to me that so long as the intention of the Legislature can be clearly ascertained it does not make any difference whether the non-obstante clause is the subject-matter of an independent section or is a part of another section. By Section 4 of the Bihar Act the Bihar Legislature has expressed its intention that in spite of the contrary provision of any ether pre-existing law or contract the estate of a proprietor shall vest absolutely in the State. It does not therefore matter in the least whether this intention is expressed in an independent section. The fact that the intention is expressed in Section 4 of the Bihar Act and not in Section 3 does not also make any difference. Section 3 of the Bihar Act confers a power upon the State Government to issue a notification declaring that the estates or tenures of a proprietor or tenure-holder specified in the notification have passed to the State. Section 4 deals with the effect of the exercise of that power. In my opinion it is neither necessary nor appropriate that the intention of the Legislature should be expressed in defining the powers of the State Government and it is enough if the intention is expressed in dealing with the consequences of the exercise of that power. I accordingly hold that the Bihar Land Reforms Act has the same effect upon the Bengal Settled Estates Act of 1904 as it has upon the Murshidabad Act of 1891 or the West Bengal Estates Acquisition Act of 1953 has upon the Murshidabad Act of 1891.

13. The learned counsel appearing for the plaintiff next contended that the interest created by the Bengal Settled Estates Act of 1904 constitutes an indivisible unit, the integrity of which cannot be split up by Bihar Legislation. It is contended that if the Bihar Act be allowed to break up the integrity of the plaintiff's interest in the lands included in the deed of family settlement it will really be equivalent to giving an extra territorial effect to the Bihar Act. Reliance is placed for this proposition upon a decision of the Allahabad High Court in the case of Wahiduddin v. Makhan Lal, AIR 1938 All 564. In that case, as the head-note shows, it was held by a Bench consisting of Bennet and Verma JJ. that the laws made by the local Legislature of one province cannot have extra territorial effect and consequently a mortgagor owning property in United Provinces as well as in other provinces, who has mortgaged properties situate in all the provinces under one deed but in lieu of a single advance, is not entitled to the relief contemplated by Section 33 of the U. P. Agriculturists Relief Act XXVII of 1934. I am free to confess that I do not see how the decision in Wahiduddin's case, AIR 1938 All 564 in any way helps the plaintiff. In that case the Court held that since the mortgage security was indivisible and the mortgaged properties were situate in more than one province the mortgagor was not entitled to claim the benefit of any law passed by the local Legislature of one province. To my mind the interest of a life tenant under the Settled Estates Act cannot be said to be indivisible in the same sense in which a mortgage security is indivisible. Section 29 of the Settled Estates Act authorises a tenant for life to sell the whole or any portion of his interest with the previous permission of the Civil Court and if he sells any such portion the so-called integrity of the estate is thereby broken. Consequently the interest of a life tenant under the Settled Estates Act cannot be said to be an indivisible unit in the same sense in which a mortgaged security constitutes an indivisible unit. Moreover as the subject-matter of legislation in the Bihar Land Reforms Act is within Entry 18 of the State List in the Seventh Schedule of the Constitution the Bihar Legislature has plenary powers to legislate with regard to land which is included in the territory of Bihar. If as a result of that legislation a part of the plaintiff's estate which is in Bihar has been separated from the rest the Bihar Legislature had ample authority to bring about that result and the validity of the Bihar Act cannot be challenged on this ground. The observations of the Supreme Court in the case of Motipur Zamindary Co. Ltd. v. The State of Bihar, : [1953]4SCR720 are conclusive on this point. In the case of Motipur Zamindary Co. Ltd., : [1953]4SCR720 the appellant company was the owner of estates situate partly in the district of Purnea, in the State of Bihar and partly in the district of Malda, in the State of West Bengal, but a single land revenue was payable in respect of all the estates in the Collectorate of Purnea. The appellant company had further granted putni leases comprising lands situate within and outside the State of Bihar. Relying on these two facts it was contended on behalf of the appellant company in the Supreme Court that the notification issued by the Bihar Government under Section 3 of the Bihar Land Reforms Act was invalid because the acquisition of that part of the estate which is situate only in Bihar made it impossible for the appellant company to pay its land revenue or to recover rents due from the putnidars. In rejecting this contention the Supreme Court made the following observations:

'We do not think there is any substance in this argument. As stated by the High Court it is a simple case of apportionment of the revenue and also the apportionment of the rent. Necessity for such apportionment cannot possibly affect the validity of the notification.'

It is true that in the case of Motipur Zamindary Co. Ltd., : [1953]4SCR720 , there was no special statute under which the appellant company held its estates and it is also true that in the present case the plaintiff holds the estate under a special statute namely Bengal Settled Estates Act; but that fact does not make any difference to the application of the principle formulated by the Supreme Court. The so-called 'indivisible intregity' of the estate held by the plaintiff under the Bengal Settled Estates Act will be superseded to the extent to which the provisions of the Bengal Settled Estates Act are inconsistent with the provisions of the Bihar Land Reforms Act

I accordingly decide issues Nos. 2, 3 and 4 against the plaintiff and hold that the Bihar Land Reforms Act of 1950 does affect the plaintiff's interests in the lands held by him under the Bengal Settled Estates Act of 1904 and lying partly within the State of Bihar and I also hold that that part of the plaintiff's estate which is within the territory of the State of Bihar has vested in the State of Bihar under the notification dated the 30th of October. 1952.

14. I now proceed to consider issue No. 1 which raises the question of the jurisdiction of this Court to try the suit. That question will have to be decided upon a true construction of Clause 12 of the Letters Patent of this Court. That clause divides suits into two classes: (a) suits for land (b) suits which are not suits for land. Suits for land can be tried by this Court in the exercise of its Ordinary Original Civil Jurisdiction if the land is situate wholly within the local limits of the Ordinary Original Jurisdiction; but if the land is situate only in part within the local limits of the Original Jurisdiction the suit can still be tried in the exercise of Ordinary Original Civil Jurisdiction if 'the leave of the Court shall have been first obtained'. To put it in simple language if the suit is for land and the land is situate wholly within the Original Jurisdiction, the suit can be tried without the leave of the Court; but if the land is situate partly within and partly without the local limits of the Original Jurisdiction it can be tried on the Original Side only with the previous leave of the Court. With regard to suits which are not for land they can be tried on the Original Side without the leave of the Court if the cause of action arises wholly within the local limits of the Original Jurisdiction; but if the cause of action arises partly within and partly outside the local limits of the Original Jurisdiction the suit can be tried on the Original Side only with the previous leave of the Court. The first question for consideration in the present case is whether the plaintiff's suit is a suit for land within the meaning of Clause 12 of the Letters Patent. In considering this point the determining factor is the primary object of the suit. The prayers made by the plaintiff in the plaint are:

(a) a declaration that the plaintiff is entitled to the right, title and interest in the properties comprised in the deed of family settlement dated the 13th November. 1906 executed by the plaintiff's grandfather Maharaja Bahadur Sir Jotindra Mohun Tagore under the Bengal Settled Estates Act.

(b) construction of the rights of the plaintiff under the aforesaid deed of family settlement and also under a will executed by the said Maharaja Bahadur on December 12, 1906.

(c) a declaration that the notification dated October 30, 1952 and published in the Bihar Gazette on November 25, 1952 is invalid, inoperative and does not bind the plaintiff.

(d) a permanent injunction restraining the State of Bihar from taking possession of any property comprised in the deed of family settlement. It is to be noted that the notification dated October 30, 1952 issued by the State of Bihar which is an annexure to the plaint is in respect of properties which are wholly within the territorial limits of the State of Bihar and it does not purport to affect any property within the State of West Bengal far less any property within the local limits of file Original Jurisdiction of this Court. The learned Advocate General appearing for the State of Bihar has contended that the present suit is a suit for land within the meaning of Clause 12 of the Letters Patent and as the land is situate wholly outside the local limits of the Original Jurisdiction of this Court, this Court has no jurisdiction to try the suit. On behalf of the plaintiff Mr. Banerjee contends that the suit is not a suit for land and in the alternative assuming that the suit is a suit for land since the plaintiff asks for a declaration of his right title and interest in all the properties of the settled estate which are situate partly within and partly outside the local limits of the Original Jurisdiction of this Court it can be tried by this Court in the exercise of its Ordinary Original Civil Jurisdiction with the previous leave of the Court which has been obtained in the present case.

15. It appears that prior to the institution of the present suit another suit (being suit No. 2498 of 1952, Brohmo Gopal Jiu v. State of Bihar) was instituted by the present plaintiff as the next friend of a deity named Sri Brohmo Gopal Jiu against the State of Bihar and certain other defendants for reliefs which are identical to the reliefs prayed for in the present case, with this difference only that in that suit the declarations were asked for only in respect of one-third share of the settled estate whereas in the present case the reliefs are asked for in respect of the entire settled estate, in that suit the issue about the jurisdiction of this Court was decided in favour of the plaintiff by G. K. Mitter J. by a judgment dated December 10, 1953. The suit however was dismissed On the ground that no notice under Section 80, Civil Procedure Code, had been served upon the State of Bihar. In that judgment G. K. Mitter J. after a consideration of the relevant authorities came to the conclusion that the suit instituted by the plaintiff was a suit for land within the meaning of Clause 12 of the Letters Patent; but since the plaintiff of that suit was ask-ing for a declaration of one-third share of the entire settled estate and since the settled estate comprises land both within and without the jurisdiction of this Court, this Court has jurisdiction to try the suit under Clause 12 of the Letters Patent. Mr. Banerjee appearing for the plaintiff relied upon this judgment of G. K. Mitter J. in support of his proposition that the suit can be tried by this Court in the exercise of its Ordinary Original Civil Jurisdiction. On a consideration of the plaint as a whole however it appears to me that the primary object of the present suit is to obtain a permanent injunction restraining the State of Bihar from giving effect to the notification dated October 30, 1952 on a declaration that the said notification did not in any way affect the plaintiff's right, title and interest in the properties comprised in the notification. It is true that in pravers (a) and (b) of the plaint the plaintiff asks for a declaration of his right, title and interest to the entire settled estate and also, for a construction of the plaintiff's rights under the Will executed by Maharaja Sir Jotindra Mohun Tagore on December 12, 1906, but those reliefs are ancil-lary to the principal prayer for a declaration that the plaintiffs rights in the properties included in the notification dated October 30, 1952 have not been affected by the Bihar Land Reforms Act. That being the principal relief asked for by the plaintiff and that relief being in respect of lands situate wholly outside the territorial limits of the State of West Bengal it seems to me that the suit cannot be tried by this Court in the exercise of its Ordinary Original Civil Jurisdiction. It is remarkable that there is no averment in the plaint to the effect that there is any invasion of the plaintiff's rights to any of the properties situate within the local limits of the Original Jurisdiction of this Court. In paragraph 7, the plaintiff alleges that the Bihar Land Reforms Act of 1950 expropriates and/or takes away the plaintiff's rights and interest in certain properties of the Settled Estate and in paragraph 8 he alleges that the State of Bihar has no authority and jurisdiction to invade the plaintiff's interest in the said estate. The properties which the Bihar Land Reforms Act is alleged to expropriate or to invade are more specifically described in the notification which is an annexure to the plaint and since all those properties are situate in the State of Bihar the alleged expropriation or invasion cannot be said to relate to any property within the local limits of the Original Jurisdiction of this Court. In the absence of any averment in the plaint that there is any injury or threatened injury to any property within the jurisdiction of this Court, the prayers (a) and (b) of the plaint are not sufficient to confer jurisdiction. If therefore the present suit be a suit for land as was held by G. K. Mister J. in suit No. 2498 of 1952, this Court has no jurisdiction to try it in the exercise of its Ordinary Original Civil Jurisdiction. With great respect to G. K. Mitter J. I cannot agree with his conclusion that if a declaration is asked for in respect of the entire estate and if that estate comprises lands both within and outside the jurisdiction of this Court, this Court will have jurisdiction to try the suit in the absence of any averment of an injury or threatened injury to any property within that jurisdiction.

16. To get rid of this difficulty Mr. Banerjee contended in the alternative that this suit is not a suit for land within the meaning of Clause 12 of the Letters Patent and relied upon the decision of the Judicial Committee in the case of Nistarini Dassi v. Nundolal Bose, ILR 30 Cal 369 and affirmed on appeal by the Privy Council in Benode Behari Bose v. Nistarini Dassi, 32 Ind App 193 (PC). In that case the suit was for administration of the' estate of the plaintiff's deceased husband and for a declaration that certain leases granted by the exe-cutors of the Will of her deceased husband should be declared void as having been obtained by fraud. The leases granted by the executors were in respect of properties outside the Original Jurisdiction of this Court and on behalf of the defendants an objection was raised about the jurisdiction of the Court on the ground that since the object of the suit was to obtain a declaration about the invalidity of leases in respect of properties outside the jurisdiction of this Court the suit was not maintainable on the Original Side under Clause 12 of the Letters Patent. In repelling that contention the Judicial Committee made the following observations at page 201:

'The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there the High Court at Calcutta in its Ordinary Jurisdiction had right to order administration of this estate, and, as ancillary to such an order, to set aside a deed obtained by the fraud of the executor.'

In Nistarini's case, 32 Ind App 193 (PC), therefore, it was held that the suit was not a suit for land but a suit for administration of an estate consisting of lands in Calcutta, Patna and other places and such a suit could be instituted on the Original Side of this Court with the leave of the court previously obtained. In such a suit the place of residence of the defendant at the time of the commencement of the suit or the accrual of the cause of action wholly or in part within the limits of the Original Jurisdiction of this Court may be the determining factors but those considerations are wholly irrelevant if the suit is a suit for land where the only criterion is the geographical situation of the land. If the land is wholly situate within the limits of the Original Jurisdiction, the suit can be tried on the Original Side without the leave of the Court but if it is partly situate within that jurisdiction the suit can be instituted only with the leave of the Court previously obtained. Nistarini's case, 32 Ind App 193 (PC), therefore, is of no assistance to the piaintiff on the question of the jurisdiction of this Court.

17. The other case relied upon by Mr. Banerjee is a decision of the Federal Court being Moolji Jaitha and Co. v. Khandesh Spinning and Weaving Mills Co. Ltd., 1949-11 FCR 849: (AIR 1950 FC 83). In that case the defendants acting as the Managing Agents of the plaintiff respondent had purchased in their own names some lands at Jal-gaon outside the local limits of the Original Jurisdiction of the Bombay High Court. After the termination of the Managing Agency the plaintiff respondent instituted a suit alleging that the defendants had purchased those lands at Jalgaon out of moneys belonging to the plaintiffs and for the plaintiffs' benefit. The prayers made in the plaint were:

(a) for a declaration that the said lands were properties of the plaintiff company and that the defendants have no beneficial interest therein.

(b) that the defendants may be ordered to execute all such documents as may be necessary for transferring the lands to the plaintiffs; and for certain other reliefs.

The plaintiffs did not make any prayer for the recovery of possession as the lands were in the plaintiffs' possession. In that case a question arose as to whether the Bombay High Court could try the suit in the exercise of its Ordinary Original Civil Jurisdiction and the decision of the Federal Court turned on the interpretation of the words 'suit for land' within the meaning of Clause 12 of the Letters Patent. The Court was equally divided in its interpretation of those words. Kania C. J. and Patanjali Sastri J. held that the suit was not a suit for land and therefore the Bombay High Court on its Original Side had jurisdiction to try the suit since the defendant resided within that jurisdiction. Mahajan J. and Mookherjee J. on the other hand held that the suit was a suit for land and therefore the Bombay High Court had no jurisdiction to try the suit. Fazl Ali J. did not express any opinion on this point and dismissed the appeal on a different ground. All the Judges however were unanimous on the point that the expression 'suit for land' in Clause 12 of the Letters Patent is not confined to suits for possession of land. Kania C. J. and Patanjali Sastri J. were of the opinion that the prayer for declaration of the plaintiff's title was merely ancillary to the main prayer for a direction upon the defendant to execute a conveyance in favour of the plaintiff whereas Mahajan J. and Mukherjea J. gave a wider interpretation to the expression 'suit for land' and held that the prayer made by the plaintiff for an order directing the defendant to execute a conveyance in favour of the plaintiff did not place the suit beyond the category of a suit for land. Kania C. J. observes as follows at page 864-865 (of FCR): (at p. 89 of AIR):

'The view of a large majority of Judges thus appears to be that the expression 'suit for land' should not be narrowly confined and limited to suits for the recovery of possession of land or to obtain a declaration of title to land only.....No judicial decision has attempted to give an exhaustive enumeration of suits covered by the expression 'suit for land' and I do not propose to do so. It is sufficient to say that taking the suit as a whole one has to consider whether it is for the purpose of obtaining a direction for possession or a decision on title to land, or the object of the suit is something different but involves the consideration of the question of title to land indirectly.'

Patanjali Sastri J. made the following observations at page 885:

'The words in question (suit for land) besides obviously covering the claims for recovery of possession or control of land are apt to connote also suits which primarily and substantially seek an adjudication upon title to immovable property or a determination of any right or interest therein.'

Even upon the narrow interpretation of the expression 'suit for land' as adopted by Kania C. J. and Patanjali Sastri J., the present suit in my opinion, is a suit for land within the meaning of Clause 12 of the Letters Patent because in the present case the plaintiff is asking for a declaration that his title to the properties included in the settled estate has not in any way been affected by the notification dated October 30, 1952 issued by the Government of Bihar under the Land Reforms Aet. This suit, therefore, in my opinion, is substantially one for an 'adjudication upon title to immovable property or a determination of a right or interest therein'. In spite of the divergence of opinion between Kania C. J. and Patanjali Sastri J. on the one hand and Mahajan J. and Mookherjee J. on the other, there is a common measure of agreement in all the judgments and that is that if the primary object of the suit is to obtain an adjudication upon title to immovable property the suit will be a suit for land. I have, therefore, no doubt that the present suit is a suit for land and I respectfully agree with the decision of G. K. Mitter J, on this point. Since however the land which constitutes the subject-matter of this suit is wholly outside the local limits of the Original Jurisdiction of this Court I cannot resist the conclusion that this Court has no jurisdiction to try this suit in the exercise of its Ordinary Original Civil Jurisdiction. Mr. Banerjee faintly suggested that in paragraph 9 of the plaint it is alleged that the notification issued by the State of Bihar was addressed to the plaintiff at Calcutta within the jurisdiction of this Court, This allegation is relied upon presumably with a view to establish that a part of the cause of action arose within the jurisdiction of this Court. I am of the opinion that there is no substance in this suggestion because as I have already said the place of accrual of the cause of action does not confer jurisdiction if the suit is a suit for land and in such a case the only criterion is the situs of the land, that is its geographical location.

18. For the reasons given above I have reached the conclusion that the plaintiff's suit must be and the same is hereby dismissed with costs to defendants Nos. 1 and 2 both on the merits and on preliminary ground that this Court has no jurisdiction to try the suit.

19. The temporary injunction will stand dissolved. Certified for two Counsel.

20. K. C. DAS GUPTA C. J.: I entirely agree.

21. H. K. BOSE J.: I agree.


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