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Monohar Das Mohanta Vs. Tarini Charan Nandi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1929Cal612
AppellantMonohar Das Mohanta
RespondentTarini Charan Nandi
Cases ReferredMir Sarwanjan v. Fakruddin Mahomed
Excerpt:
- .....in the possession of madhusudan das, mohunt of asthal, burdwan. plaintiff alleged that the mohunt leased out the land permanently to him on his paying a sum of rs. 155 as selami and agreeing to pay rent at rs. 11-8-0 per annum. subsequently, a patta and a kabuliyat were executed but were not registered. in the meanwhile, the mohant died and was succeeded by the defendant monohar das mohunt.2. the defence to the suit was that the land was not the personal property of the former mohunt but that it was debuttar, that the defendant was not the successor and heir of the former mohunt, that, therefore, the suit did not lie against him, and that, inasmuch as the land was debuttar property and not personal property and contract for a permanent lease of the land was not binding upon the.....
Judgment:

Graham, J.

1. This appeal is by the defendant and arises out of a suit for specific performance of a contract. The land to which this contract related has an area of six cottahs situated at Chinsurah and was formerly in the possession of Madhusudan Das, Mohunt of Asthal, Burdwan. Plaintiff alleged that the mohunt leased out the land permanently to him on his paying a sum of Rs. 155 as selami and agreeing to pay rent at Rs. 11-8-0 per annum. Subsequently, a patta and a kabuliyat were executed but were not registered. In the meanwhile, the mohant died and was succeeded by the defendant Monohar Das Mohunt.

2. The defence to the suit was that the land was not the personal property of the former mohunt but that it was debuttar, that the defendant was not the successor and heir of the former mohunt, that, therefore, the suit did not lie against him, and that, inasmuch as the land was debuttar property and not personal property and contract for a permanent lease of the land was not binding upon the mohunt's successor. The trial Court held that the plaintiff was entitled to a decree for specific performance and gave a decree accordingly, and that decree was affirmed on appeal by the learned Subordinate Judge of Hoogly.

3. The main contention which has been urged before us on behalf of the appellant is that the Court of appeal below was wrong in holding that a permanent lease was within the powers of mohunt if it was for the benefit of the estate, and it is argued that the real question is not whether there was benefit to the estate, but whether there was necessity. Reference has been made to the decision of Judicial Committee of the Privy Council on the subject in the case of Abhiram Goswami v. Shyama Charan Nandi [1909] 36 Cal. 1003. Their Lordships of the Privy Council observed in that ease:

It is wall settled law that the power of the mohunt to alienate debuttar property is, like the power of the manager for an infant heir, limited to cases of unavoidable necessity.

4. Again, in the case of Vidya Varuthi Thirtha v. Balusami Ayyar A.I.R. 1922 P.C. 123, Ameer Ali, J., who delivered the judgment of the Court observed:

According to the well settled law of India (apart from the question of necessity, which does not here arise) a mohunt is incompetent to create any interest in respect, of the mutt property to enure beyond his life.

5. There can be no doubt from these decisions, and other decisions to which reference has been made in the course of argument, that the words' for the benefit of the estate' should really be construed in a sense almost synonymous with necessity, and that they mean some thing which is necessary for the protection or preservation of the estate. It certainly cannot be held on the facts of the present case that anything has been established to prove benefit of the estate in this sense. There is no evidence, for example, to show that the interest of the estate would not have been equally served by a lease which was something other than a permanent lease. In reply to this contention Mr. Mitter on behalf of the respondent has urged that the lease which was intended to be granted by the late mohuat was not a permanent lease at all, and laid stress upon the fact that the word ' mokorari ' is nowhere to be found in the lease. But although that word is not to be found it seems to be clear, taking the patta and the kabuliyat together that the lease is a mokorari or permanent lease.

6. It was next urged on behalf of the respondent that even if the lease, was beyond the powers of the former mohunt there was a ratification of it by the present mohunt and that that being so the tease would enure at all events for the lifetime of the present incumbent of the office of mohant. There could not, however, be any ratification of a lease which was in itself void. It was also argued that the principle which should be applied is the principle of benefit to the estate, but, as I have already said, that expression must be interpreted in its special meaning and cannot be construed in such a manner as to cover any and every contract or lease which may bring some sort of financial benefit to the estate. In my judgment, the decision of the Court of appeal below cannot be supported and the appeal should be allowed and the plaintiff's suit dismissed with costs in all Courts. We further direct that the appellant do refund the sum of Rs. 155 which was paid by the respondent to the previous mohunt.

Mitter, J.

7. I agree with my learned brother that this appeal should be allowed and the plaintiff's suit for specific performance dismissed with costs.

8. The question raised in this appeal is as to whether the contract entered into by the previous mohunt of an endowment can be specifically enforced against his successor in shebaitship it not having been shown that the contract was entered into for the purpose of meeting unavoidable necessity. It appears that the previous mohunt Madhusudan Das Mohant of Asthal, Burdwan, contracted to grant a permanent and mokorari lease to the present plaintiff after taking a certain premium and fixing a certain rental annually. He executed a patta and a corresponding kabuliyat was also executed by the plaintiff, but before these two documents could be registered he died and he was succeeded in his mohantship by the present appellant The respondent consequently instituted the suit in which this present appeal arises for the purpose of specifically enforcing the contract entered into by Madhusudan with him to grant a permanent mokorari lease. It is now finally established on the authorities to some of which reference has been made by my learned brother that it is beyond the power of a mohant of an endowment.

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.

9. Such an act has been held by the Judicial Committee of the Privy Council in the case of Abhiram Goswami v. Shyama Charan Nandi [1909] 36 Cal. 1003 ' to be a breach of duty in the mohunt ' Such an act is void as against a succeeding mohant and no Court would be justified in enforcing the specific performance of a contract which is illegal and void under the law. The illegality of a contract furnishes a good defence to a suit for specific performance. In the present case there is no allegation in the plaint showing that there were special circumstances of necessity in this case which would justify the grant of the mokorari patta which the predecessor-in interest of the present appellant intended to grant. In such circumstances, it will not be right for any Court to grant specific performance.

10. It has been argued on behalf of the respondent that there has been some profit to the estate and that is sufficient to justify the grant of the mokorari patta by the previous mohant and that such a mokorari patta, if executed, could undoubtedly be binding on his successor. There is no authority for this contention. All the cases in the books show that whereever a mokorari patta of a debuttar land has been upheld as against the successor of the shebait granting a patta it has been supported on the ground that it was granted in consideration of money said to be required either for the repair and completion of a temple, for which no other funds could be obtained or for the purpose which fell into the category of protecting of the estate from injury or deterioration. One of the earlier instances in which such a mokorari lease has been upheld was in the case of Doorga Nath Roy v. Ram Chunder Sen [1379] 2 Cal. 341 which went before the Judicial Committee of the Privy Council where a mokorari patta of a debuttar lease was supported on the ground that money was required for the repair of the temple and that it was not possible to get money from other sources than by granting a permanent mokorari lease. Quite recently their Lordships of the Judicial Committee of the Privy Council had to consider the circumstance under which a lease by the head of an endowment could be justified where the lease was granted for the purpose of benefiting the endowment. In the case of Palaniappa Chetty v. Deivasikamony Pandara A.I.R. 1917 P.C. 33, their Lordships of the Judicial Committee after stating that it was not possible to give a precise definition of the word ' benefit said this:

The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.

11. As I have already stated, there is not a single allegation in the plaint which would suggest that the mohant was under any necessity of granting this permanent mokorari patta depriving the Asthal of the benefit of an augmentation of a variable rent The only fact on which the lower Courts have drawn the inference that the endowment has been benefited is that the debuttar estate has made a certain profit out of the alleged contract of the mohant That, in my opinion, is wholly insufficient to justify the granting of the mokorari lease.

12. It has next been argued by the learned advocate for the respondent that even if this lease be regarded as binding on the present appellant still as he did ratify the intended lease on behalf of his predecessor-in-interest he is bound to execute the lease on behalf of his pre decessor as his successor in the gadi. There is no substance in this contention, for, as has been pointed out by my learned brother, the lease is altogether void. It is wholly ineffective as against the successor and no question of ratification could possibly arise with reference to a void instrument. No authority has been shown and none can really be found where the question of ratification can-arise where the instrument which is said to be ratified is void and not merely a voidable instrument. It seems to me that there has been no ratification at all for the present appellant never ratified. The ratification, if there was any, was by his guardian at the time when he was an infant and all that is alleged is that the guardian asked the present respondent to execute the kabuliyat in terms of the patta which was intended to be granted by the former mohant. I do not think the facts also lay any foundation for the ratification. It is argued that there was a new contract by the guardian of the appellant. Assuming there was this contract cannot be enforced against his ward, the appellant : see Mir Sarwanjan v. Fakruddin Mahomed [1912] 39 Cal. 232. For these reasons, I agree with my learned brother in allowing the appeal.


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