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Abdul Gafur Mandal and anr. Vs. Uma Kanta Pandit - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1915Cal33,24Ind.Cas.266
AppellantAbdul Gafur Mandal and anr.
RespondentUma Kanta Pandit
Cases ReferredGopi Nath Chakravarti v. Uma Kanta Das Roy
Excerpt:
bengal tenancy act (viii of 1885), sections 30, 188 - enhancement, suit for--co--shebaits--joint landlords--hindu law--widow whether forfeits rights as she bait, if unchaste. - .....section 188 of the bengal tenancy act. that section -provides that where two or more persons are joint landlords, anything which the landlord is, under the act, required or authorized to do must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them. the landlord is authorized to institute a suit for enhancement of rent under the provisions of section 30 of the bengal tenancy act. consequently if there are two persons who are joint landlords, a suit of this description must be instituted by them jointly or by an agent authorised to act in this behalf. this position cannot be controverted and is supported by the decision of the judicial committee in the case of jotindra nath chowdhury v. prasanno kumar banerji 8 ind......
Judgment:

1. This is an appeal by the first and second defendants in a suit for enhancement of rent under Section 30 of the Bengal Tenancy Act. The substantial question in controversy between the parties is, whether the suit is barred under Section 188 of the Bengal Tenancy Act. That section -provides that where two or more persons are joint landlords, anything which the landlord is, under the Act, required or authorized to do must be done either by both or all those persons acting together or by an agent authorized to act on behalf of both or all of them. The landlord is authorized to institute a suit for enhancement of rent under the provisions of Section 30 of the Bengal Tenancy Act. Consequently if there are two persons who are joint landlords, a suit of this description must be instituted by them jointly or by an agent authorised to act in this behalf. This position cannot be controverted and is supported by the decision of the Judicial Committee in the case of Jotindra Nath chowdhury v. Prasanno Kumar Banerji 8 Ind. Cas. 842 : 38 C. 270 :. 15 C.W.N. 74 : 9 M.L.T. 1 : 13 C.L.J. 51 : 8 A.L.J. 1 : 13 Bom.L.R. 1 : 21 M.L.J. 92 : (1911) 2 M.W.N. 119. A suit of this description is not properly constituted if instituted by one of the joint landlords with the other added as a party defendant, for the principle recognised in Luke v. South Kensigton Hotel Co. 48 L.J. Ch. 361 : 40 L.T. 638 : 27 W.R. 514 : 11 Ch. D. 121. and Flower v. Metropolitan Board of Works 27 Ch. D. 592 : 53 L.J. Ch. 955 : 51 L.T. 257 : 32 W.R. 1011. has no application to this class of cases. Before we determine whether Section 188 is applicable to the case before us, the relevant facts must be briefly recited. The case for the plaintiff is that the land in the occupation of the defendants is part of an endowed property dedicated to an idol Radha Kanta Thakur established by his predecessor. The plaintiff admits that he and his brother were at one time joint shebaits of this property, and after the death of his brother he was treated as shebait by his widow, Subastuni Debi, the third defendant in .this litigation. The plaintiff alleges that the third defendant has ceased to reside in the village and that she is no longer interested in the management of the endowed property. He consequently brings this suit alone, but joins the widow of his brother as pro forma defendant in order that she may be transferred to the category of co-plaintiff if she expresses a desire to that effect. The suit was resisted on the merits by the first two defendants, that is, the tenants whose rent was sought to be enhanced. Amongst other defences, they contended that the suit could have been instituted only by the plaintiff and his co-shebait, the third defendant, jointly and that as the suit had not been framed in that manner, it was barred under Section 188. The third defendant tiled a written statement in which she stated that she had no objection to the enhancement of rent, at the instance of the plaintiff and that she had no longer any connection with the endowment. The Courts below have overruled the objection taken by the tenant-defendants and have made a decree in favour of the plaintiff. The first point for determination is whether the plaintiff and the third defendant are joint landlords within the , meaning of Section 188 of the Bengal Tenancy Act.

2. On behalf of the plaintiff-respondent it has been argued that the property is vested in the idol who is the landlord of the tenant-defendants, and, that consequently no question arises whether the plaintiff and the third defendant are joint landlords within the meaning of Section 188. This contention is opposed to the decision of the Judicial Committee in the case of Jagadindra Nath Roy v. Hemanta Kumari Debi 32 C. 129 : 7 Bom.L.R. 765 (P. C) : 31 I.A. 203 : 8 C.W.N. 809 : 1 A.L.J. 585. It was pointed out by Sir Arthur Wilson in the case just mentioned that an idol may be regarded as a juridical person capable as such of holding property, though it is only in an ideal sense that the property is so held : and probably this is the true legal view when the dedication is of the completest kind known to the law. But assuming the religious dedication to have been of the strictest character, it still remains that the possession and management of the dedicated property belongs to the shebaits : and this carries with it the right to bring whatever suits are necessary for the protection of the property, for the right of suit is vested in the shebait and, not in the idol. It is plain consequently that the plaintiff and the third defendant are joint landlords. The right to institute a suit for enhancement of rent under the provisions of the Bengal Tenancy Act is vested in them. An attempt, however, is made to meet this objection by the contention that each shebait is entitled to deal with the property as a manager : and it is urged that shebaits cannot be treated in all respects as trustees. It is not necessary to maintain the position that joint shebaits of an endowment are for all purposes joint trustees. But it is plain that, in some respects, at any rate, they have the status of joint trustees. This is clear from the decision of the Judicial Committee in the case of Rajendronath Dutt v. Shaikh Mahomed Lall 8 C. 42 (P.C.) : 8 I.A. 135., where their Lordships pointed out that in a suit by three of four shebaits to set aside an alienation of an endowed property, the fourth shebait was a necessary party, although he had misconducted himself and was not in a position to join as a co-plaintiff. The same view was adopted by this Court in Bechulal v. Oliullah 11 C. 338 : and Kokilasari Dasi v. Mohunt Rudranund Goswami 5 C.L.J. 527 at p. 533., and by the High Court of Madras in Mariyil Raman Nair v. Narayanan Nambudiri-pad 26 M. 461. and Ramanathan Chetty v. Murugappa Chetty 27 M. 192 : 13 M.L.T. 341. The true principle is, as was stated in Ex parte Griffin (10) 2 Glyn & Jams. 114., that the office of co-trustees is joint. They all form, as it were, a corporate body and they must execute the duties of their office in their joint capacity. But it has been argued on behalf of the plaintiff-respondent that the case before us is governed by either of two different principles, namely that one of two joint trustees is entitled alone to collect rent from tenants [Townley v. Sherbome 2 W. & T.L.C. 627 at p. 629.] or that one of two joint trustees is entitled alone to take action for the benefit of the trust with the consent of his co-trustee [Messeena v. Garr (12) L.R. 9 Eq. 260 at 262 : 39 L.J. Ch. 216 : 22 L.T. 3 : 18 W.R. 415., Brazier v. Camp (13) 63 L.J. Q.B. 257 : 9 R. 852.]. As regards the first principle, it is sufficient to say that this is a suit not for realisation but for enhancement of rent. As regards the second principle, it is urged that the plaintiff is entitled to maintain this suit alone, because the co-trustee, who has been joined as a pro forma defendant, declared in her written statement that she had no objection to the enhancement of rent at the instance of the plaintiff alone. No doubt, the suit might be treated as maintainable, if it was established that the plaintiff was an agent authorised to act on behalf of both the shebaits, within the meaning of Section 188, and as was observed in the case of Gopi Nath Chakravarti v. Uma Kanta Das Roy 24 C. 169 the authority may be conferred either orally or in writing. In the case before us, however, the plaintiff has not laid the foundation for a case of agency. His allegation is that the co-trustee has ceased to be a trustee, not that he himself has been authorized by her to maintain this suit on her behalf. The respondent has consequently been driven ultimately to take up the position that there has been a valid renouncement of the trust by the third defendant. For this purpose, reliance has been placed upon the statement contained in the written statement of that defendant to the effect that she did not desire to keep any connection whatsoever with the endowment. It has further been urged that the defendant is a degraded woman, and that, apart from any question of renouncement, she has forfeited her rights as a co-shebait. No foundation, however, was laid in either of the Courts below for a case of this description. It has not been shown that the third defendant has renounced her rights as a co-shebait in any manner known to law : , nor has authority been produced for the proposition that a Hindu widow, after she becomes a shebait, forfeits her right as such shebait as soon as she lapses from the path of virtue and honour. In fact, there is no evidence to show that the third defendant is a degraded woman or that she has ceased to be a co-trustee. The suit has proceeded on the assumption that the plaintiff, though one of two shebaits, is entitled alone to maintain it : that case has completely failed. The plaintiff and the third defendant must, for the reasons assigned, be deemed to be joint landlords, and in that view Section 188 is clearly a bar to the suit.

3. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored, though not for the reasons assigned by that Court. This order will carry costs both here and in the Court of appeal below.


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