1. This is an appeal by the defendant in a suit in which the plaintiffs sued for enhancement of rent on the ground of rise in the price of staple food crops. The facts are that the land was debutter of certain Barals of which one Radhamadhab was the shebait who on the 27th September 1889 granted a mourashi mokarrari patta to the defendant's predecessors. There was a suit in the original side of the High Court for the better management of the property and the land now in suit was directed by the Court to be sold, presumably as a secular property for the realization of the costs of the suit. It was purchased by one Haridhon Dutt whose estate afterwards went into the hands of a Receiver from whom the plaintiff purchased the property. The defendant was in possession of the land at an annual jama of Rs. 62 and the present suit is for enhancement of the rent of that jama. The learned Munsif decreed the plaintiffs' claim and enhanced the jama to Rs. 7-15-9. That decree was confirmed on appeal by the District Judge of the 24-Parganas.
2. The learned Advocate for the appellant has argued three points. He argued in the first place that the defendants' mourashi mokarrari tenancy having been recognized by successive owners, the plaintiffs are not entitled to maintain the present suit. On this point the learned Subordinate Judge found that that in 1909 the Receiver brought a suit against the defendants' predecessor for rent and in execution of the decree put up the property to sale describing the same as an occupancy holding. It was purchased by one Madhukar on the 23rd November 1909 from whom the defendants purchased the holding on 22nd November 1910. From these and other facts the learned Judge is of opinion that the defendants failed to prove that successive owners recognized his tenancy as mourashi mokarrari.
3. The second point argued is that the defendant is either a mourashi mokarrari tenant or a trespasser and, therefore, Section 30(b) of the Bengal Tenancy Act does not apply to the present case. This contention has no substance. The defendant is a tenant on the land. By virtue of long possession he has acquired at any rate a right of occupancy. The plaintiffs and their predecessors treated him as a tenant with ordinary right of occupancy. It cannot, therefore, be said that he is a trespasser and, therefore, Section 30(b) does not apply. As to his being a mourashi mokarrari tenant the matter will be considered in connection with the next point.
4. Lastly it is argued on the merits that having regard to the facts found and the recital in the lease granted by Radhamadhab, it should have been held that the lease granted to the defendants predecessor is a valid one and binding on the plaintiffs. It is also contended in view of these facts that the onus of proving that there was no necessity for the granting of the lease was on the plaintiffs and they having failed to discharge the onus, this suit ought to have been dismissed. It is urged that a shebait can transfer debutter property for legal necessity, and, therefore, his position is similar to that of a Hindu widow. No authority has been placed before us in support of this proposition. No doubt a shebait or a mohunt has under special circumstances the power to alienate or grant a mokarrari lease of the trust property and so far the similarity of his position to that of a Hindu widow is maintainable. But a Hindu widow has an estate in the property unknown to English Law and unlike any other that may be created under the general law. Though she gets a limited interest in the property, she has got powers which are not enjoyed by life-tenants; she cannot be removed from possession of the property but a shebait is liable to be dismissed for acts of breach of trust; she is not accountable to any one for the income of the property in her charge, whereas a shebait is subject to the rights of the beneficiaries to ask for accounts. The widow does not hold the estate in trust for the reversioner, but the shebait, though not a trustee in the strict sense of the term, is the manager or custodian of the debutter property. The question that arises for consideration is whether a shebait can grant a mokarrari mourashi lease like the one in the present case. It is conceded by authorities that he can do so for unavoidable necessity. In the present case there is no proof that there was any necessity for the granting of the lease. It is held in Abhiram Goswami Mohant v. Shyama Charan Nandi 4 Ind. Cas. 449 : 38 I.A. 148 : 36 C. 1003 : 10 C.L.J. 284 : 6 A.L.J. 858 : 11 Bom. L.R. 1234 : 19 M.L.J. 530 : 14 C.W.N. 1 (P. C) that it is well settled law that the power of a mohunt to alienate debutter is, like the power of a manager of an infant heir, limited to cases of unavoidable necessity. It is hardly necessary to remark that a person deriving title from holder of a limited interest in the property is under necessity of proving the authority of the limited owner to make alienation and ordinarily the onus would be on him to prove the validity of the transaction. In this case, as we have observed, there is no evidence to show that there was any necessity existing at the time when the mourashi mokarrari patta was granted. It is also argued in this connection that the plaintiff's claim is barred by limitation or in other words the defendant has by efflux of time acquired the status of a mourashi mokarrari tenant in the land in suit. This question has now been put beyond the range of controversy by their Lordships of the Judicial Committee in the case of Vidya Varuthi Tirtha v. Balusami Ayyar 65 Ind. Cas. 161 : 48 I.A. 302 : 44 M. 831 : (1921) M.W.N. 449 : 41 M.L.J. 316 : 3 U.P.L.R. (P.C.) 62 : 15 L.W. 78 : 30 M.L.T. 68 : 3 P.L.T. 245 : 26 C.W.N. 537 : 24 Bom. L.R. 629 : 20 A.L.J. 497 : (1922) A.I.R. (P.C.) 123 (P.C.). There their Lordships have held that according to the well-settled law in India, a mohunt is incompetent to create any interest in respect of the muth property to endure beyond his life. The tenant or transferee acquires a right similarly limited. If the successor of the mohunt permits the tenant to continue in possession and receives rent from him during his life, the tenancy thus created will be a new tenancy created by himself for his lifetime. It is within the power of every successive trustee to continue tenancy during his life and consequently his possession in that never becomes adverse to the successor of the last mohunt. In the present case, however, there is no finding that the defendants ever asserted as against the successors of Radhamadhab his mokarari mourashi title. In fact the evidence, so far as it goes, shows that the holding as described as an occupancy holding and no objection was taken to such description by the tenant.
5. All the points taken by the appellant having failed, this appeal is dismissed with costs.