1. The appeal has arisen out of a dispute as to the rights of the parties in a debuttar estate. The only two questions arising in this appeal are : (1) whether a lease granted by a receiver appointed by the Court to defendant 2 has been rightly cancelled by the lower appellate Court : (2) whether the lower appellate Court was correct in holding that the plaintiffs as co-shebaits with defendant 1 were entitled to remove the idol to their exclusive custody for seven and half months of the year. The appellants contend that the decision of the lower appellate Court on both these points is not justified in the circumstances of the case.
2. The lease was cancelled on the grounds: that (1) the receiver concealed from the Court the fact that the lessee was her own grandson and a brother of Sirish Chandra Banerjee the adopted son of Bama Sundari the previous shebait of the six annas share by virtue of a compromise with Promotho Nath Banerjee, The latter was the predecessor of the plaintiffs and shebait under the compromise of the ten annas share, in whose place the receiver was appointed by the Court. He died in 1924 and the receivership has been terminated by the Court.
3. The receiver has of course no power to lease the debuttar property without the sanction of the Court and the Court below has quite rightly held that any misrepresentation on concealment of material facts from the Court in connexion with a proposed lease would vitiate the authority of the receiver to grant the lease In the present case there was such concealment and it is possible that the Court might not have granted sanction to the lease or at least might have scrutinized the terms more closely had it known of the relationship. Another objection is that in the lease an additional clause was introduced which was not contained in the terms proposed in the application for sanction, i.e., that if the lessee was not paid the price of any permanent structures as settled by an engineer appointed by both parties, he would not be bound to give up the property. According to the application (the terms proposed which were sanctioned by the Court) the she baits were to pay to the lessee the full value of all such structures erected by the lessee. That being so, if the value was not paid the lessee would certainly be entitled at least to a lien on the property, so that the added clause did not really add very much to the terms sanctioned.
4. The first objection is more serious and had it been shown that the lease was in any way a disadvantageous one and not for the benefit of the debuttar estate then I certainly think it should be cancelled. On the findings, however, arrived at by the Court of first instance which have not been upset by the learned appellate Judge it appears that the leas has been to the advantage of the estate and there seems every reason to think that its continuance will be for the advantage of the estate. In these circumstances it is doubtful if there was any fraud practised on the Court or intended when the lease was granted. No attempt has apparently been made to erect permanent structures and the clause entitling the lessee to continue in possession not having received the sanction of the Court would not be binding on the shebaits and cannot be deleted from the lease. There seems to be some ground for the surmise of the trial Court that if the lease is cancelled it will lead to wastage of the property through disputes between the shebaits and, in the circumstances, since the continuance of the existing lease (apart from the clause about retaining possession on the expiry of the lease) appears to be for the benefit of the estate, the fact that there is reason to suspect fraud at the time of its inception does not seem to be a good ground for cancelling it entirely Ground 7 of the appeal indicates that the lessee wishes to continue the lease with the objectionable added clause deleted and we think that the order of the Court of appeal below should be modified accordingly.
5. The remaining point is regarding the removal of the idol. Under the terms of the compromise between Pramatha and Bamasundari, Pramatha was entitled to worship the deity at any place convenient to him during his pala or turn of worship. The trial Court, however, refused the prayer of the plaintiffs that-they might move the idol holding that to-do so would endanger the puja The idol has been in a rented house in Kid-derpore for the last 35 years but there is no specific temple for it and in the circumstances we think that the appellate-Court was right in holding that the plaintiffs could not be refused their right under the terms of the compromise to have the idol during their seven and half months pala where they can worship it conveniently. The appellants, however, rightly object to the removal of the idol from place to place especially as the' plaintiffs have no suitable place to keep ; it. In the circumstances we are inclined to favour the proposal referred to in the trial Court to construct a separate abode for the idol on a part of the debuttar estate where it could be conveniently worshipped in turn by the parties. This suggestion was discussed in our presence by the representatives of the parties and it was agreed that a suitable building should be erected, the expense being met from the land acquisition funds which are due to the estate. A receiver will be appointed under the direction of the-Court (if possible some one who will act without expense to the parties) for this-purpose. The defendants object to provision in the building for accommodation' for the shebaits and we think that this is not necessary. The trial Court will-also decide when the time of worship of the parties will Commence should there be any disagreement on this point.
6. The appeal is allowed accordingly. The lease will remain in force excluding the clause entitling the lessee to remain in possession after the termination of the-lease-and a building will be erected as speedily as possible for the residence of the idol under the direction of the Court where the plaintiffs and defendants can worship it for seven and half and four and half months respectively.
7. The case will accordingly be remitted to the trial Court for the purposes indicated. The parties will pay their own costs.
8. I agree.