Kamakhya Narain Singh vs Harkhu Singh

Ray, J.—This is a plaintiff''s second appeal instituted in a suit for declaration of title to and recovery of possession of 22.36 acres of zirat lands on setting aside settlement thereof with the defendant respondent by the Court of Wards. The plaintiff''s estate was under the management of the latter from 1918 to 1937. The impugned settlement was effected by the Manager, Court of Wards in the year 1923. The plaintiff on attainment of majority and his assumption of the management of the estate has brought this suit within three years. Thus the suit is in time. The plaintiff''s attack on the settlement is based on the grounds, inter alia, that the settlement was prejudicial to the interest of the ward''s estate, and that the manager in effecting the settlement exceeded the limits of his power. The defence, on the other hand, is that the settlement was effected by way of the bona fide settlement of a dispute between the estate and the defendant, in consideration of the defendants''s surrender of his mokarrari rights to the estate. Hence, he claimed occupancy right in the lands and advanced plea of estoppel against the plaintiff grounded on his subsequent ratification of the settlement and recognition of the holding. The other contentions raised in the defence were not pressed in the Courts below and have not been taken up in this Court.

Before the trial Court, there was an issue of limitation; that too has since been abandoned. The material issues on which the parties went to trial were:

Is the settlement of the suit land with the defendant valid, legal and binding on the plaintiff?

Has the defendant acquired occupancy right in the suit land? If so, can he be ejected?

Is the plaintiff entitled to mesne profits? If so, what amount.?

The trial Court answered the first two issues in the negative and the last one in the affirmative. The reasons assigned by the trial Court were: (1) that the settlement with the defendant was not for the benefit of the estate; (2) that the manager was not vested with the power of making permanent settlement of lands (vide Rule. 70 and 228, Court of Wards Manual 1927, corresponding to Rule. 65 and 241 of the Manual of 1941); (3) that the settlement being prejudicial to the interest of the Ward''s estate, was not sanctioned by Section 18, Court of Wards Act; (4) that though ordinarily under the provisions of Chota Nagpur Tenancy Act the defendant would acquire occupancy right in the lauds by the lapse of 12 years u/s 17, Chota Nagpur Tenancy Act, in the present case the plaintiff''s disability lasted till the year 1937 which prevents the acquisition of such right in favour of the defendant and (5) the conclusion in favoun of the plaintiff''s right to khas possession necessarily entitles him to mesne profits according to the claim at Rs. 35-15-0 per annum.

With the above findings, the trial Court decreed the plaintiff''s suit. The defendant then preferred an appeal. Before the learned lower appellate Court two points were pressed: One was existence of manager''s power to settle the lands. The second was the plaintiff''s recognition and ratification of the settlement giving rise to estoppel against him. On the first point the Court held:

Thus from the above it is clear that the manager had power to create occupancy holdings rent of which did not exceed Rs. 50.

In coming to this conclusion the learned lower appellate Court has held the rules framed u/s 70 of the Act questionable in the civil Court; that they have not the force of law so as to override or restrict the powers of the manager in creating leases or farms by virtue of Section 18 of the Act in exercise of the powers delegated to him; that the rules are mere matters of procedure without any effect on the rights of a third party; and that the transaction in question was for the benefit of the estate and advantage of the ward within the meaning of the latter part of Section 18 of the Act. Regarding the contention as to estoppel, he agreed with the learned Munsif. In the result, he found that the Munsif had committed an error in construing the law and granting, the plaintiff a decree.

The plaintiff in second appeal has stressed two points, namely, incompetence of the manager to settle, and prejudicial character of the settement to the interest of the estate.

I view the determination of the question as to beneficial and advantageous character of the settlement or otherwise as basic in the case. I should, therefore, address myself first to this aspect of the question. The determinative facts are : (1) that the defendant from the time of his ancestor was holding mokarrari interest in the village since its creation in the eighties of the last century. In order to indicate the danger to the estate in the ancient character of the mokarrari interest, Mr. De invited my attention to a decision of the Privy Council in Kamakhya Narain Singh v. Ram Raksha Singh AIR 1928 P.C. 146 where it was held:

Where on the death of the grantee of a mokarrari istimrari patta, which upon its true construction is for life only, his heirs or assignees remain in possession claiming contrary to the contention of the grantor that the patta is permanent and heritable, they do not become tenants from year to year either u/s 116, T.P. Act, 1882, or otherwise by operation of law. The possession of the heirs or assignees, and of those claiming from them, is adverse to the grantor for the purpose of the Limitation Act, 1908, Schedule 1, Article 144, unless the grantor has recognised the existence of a tenancy so that the relationship of landlord and tenant is created.

The core of Mr. De''s contention is that the estate manager in order to avoid the risk of the estate having had to lose the entire village, entered into an arrangement with the mukarraridars. By virtue of the arrangement renunciation of mukarrari right on the part of the defendant formed the consideration for the permanent settlement in raiyati right of the lands in dispute. The learned lower appellate Court in coming to his finding in favour of prudentiality of the. settlement has given due recognition to this aspect. After adverting to the provisions of Section 18 requiring the Court to do all such acts as it may judge to be most for the benefit of the property, and for the advantage of the ward, the learned lower appellate Court proceeds:

From the record it transpires that the suit lands which lie in village Lawalaunewere formerly the mokarrari istamrari of the ancestors of the defendant and after the death of the mokarraridar, Bamgarb, Estate resumed khas possession. Subsequently, the defendant paid the entire arrears of rent amounting to Rs. 3689-4-6 and in consideration of this the manager settled the entire area of lands in possession of the defendant in raiyati by virtue of a hukumnama.

It is contended by the defendant that the settlement was made with him at a double rate of rent prevailing in the than. The respondent has not adduced any evidence in the lower Court to prove that the statement of the defendant is wrong.

The learned lower appellate Court has also come to a finding in consideration of the yield of the paddy lands of the locality as to the appropriateness of the rental of Rs. 35-15-0 per annum. He has also found that it was not possible for the manager of the Court of Wards to bring under direct cultivation in 1923 vast tracts of land lying within the radius of about 66 miles from Hazaribagh town. The only possible way of prudent management according to him, was to let them out either for a term of years or permanently for the purpose of cultivation. This finding of the learned lower appellate Court has been challenged vigorously by Mr. Jha, counsel for the appellant. Before proceeding to consider his contention on its merit, I should observe that according to Section 18 it is (for?) the Court or whosoever acts in exercise of the powers delegated by the Court to exercise his individual judgment, if not discretion, in deciding whether the doing of a particular act is for the benefit of the property and the advantage of the-ward. This principle is deducible from the language employed is by t the Legislature in enacting Section 18 of the Act. I consider this section to be the keynote to the legislation providing for proper management of ward''s estate by the Court. The material part of the section is phrased as follows:

The Court may direct the doing of all such other acts as it may judge to be most for the benefit of the property and the advantage of the ward.

I lay emphasis upon the words "as it may judge," I shall not be understood to say that the Court should in all circumstances be considered to be the final Judge; but at the same time it would not be correct to hold that the civil Court, while sitting on judgment upon the prudent character of any act of the Court, it will weigh the matter with a golden scale. A considerable amount of latitude must be permitted to the authority concerned. The wisdom and sagacity of the said authority must be presumed. Mr. Jha contends that the only prudent management of a ward''s estate (proprietary) is to preserve the zirat lands by granting settlements on bhaoli rent by registered leases for terms of years. In the absence of the Court of Wards, it is difficult to appraise the value of this contention. In cases of a small area of zirat lands and with good capacity for productivity the argument may prove appropriate. Where the area is vast and productivity is low, as it is in the present case, it looks prima facie wiser to settle on cash rent on terms of fixity of tenure than on bhaoli rent. In case of adopting of the latter course, costs of management and the risk of non-realisation and consequent involvement of the estate in financial embarrassment due to litigation present the other side of the picture. I do not, therefore, accept the soundness of Mr. Jha''s contention. Besides, that the settlement is not an imprudent one and that it was arrived at in courae of bona fide management of the estate for the benefit and advantage of the ward''s estate is a finding of fact which is binding in second appeal. That the lands could have been leased out more advantageously and beneficially in a different manner turns out to be more or less a speculation in this case in the absence of any materials which can prove countervailing factors to the ones on which the finding of the Court of appeal below is based. I would, therefore, refuse to depart from or disagree with the finding of the lower appellate Court as to the beneficial and advantageous character of the settlement in question.

Mr. Jha further argued that according to the judgment of the appellate Court the settlement took place subsequent to resumption of the mokarrari interest, and that there is nothing to connect the two acts. This again is a question of fact, and according to the final Court of fact, the two are connected with each other as one being either the consideration or costs for the other. Mr. De cites a decision in Tengaroo Sukul Vs. Chatthu Bhar, to show that there is no absolute bar to the accrual of occupancy rights in zirat land and the only bar to such acquisition is by granting leases for a term of years or under a lease from year to year. This I consider does not help his argument. It is not to be forgotten in this connection that the lands were zirat lands of the mokarraridar and not of the proprietor. They were so recorded long after the creation of the mokarrari in 1864 and during the subsistence of the mokarrari interest. The record of rights in which the lands were recorded as zirat was published in the year 1910-1911.

The next question whether -the manager overstepped the limits of his delegated powers must be considered in the background of the fact that the settlement was bona fide (?), beneficial and advantegeous to the wards'' estate. For the purpose of establishing that the settlement was ultra vires the powers of the manager, reliance has been placed upon certain rules framed u/s 70 of ix (B.C.) of 1879 (Court of Wards Act). The section so far as is material for the purpose in hand reads:

The Court may make rules oonsistent with this Act and generally for the better fulfilment of the purposes of this Act. The Court may from time to time alter, add to, or repeal such rules.

The learned lower appellate Court has entered into a long discourse regarding the legal efficacy of these rules. He is of opinion that as there is nothing in the statute providing that these rules will have the force of law, he should not ascribe such force to these rules. Though I am not inclined to overrule this view as completely baseless, I consider the rules binding, confining myself to the rules with which I have to deal inasmuch as they define the powers delegated to the manager. In this connexion reference may be made to Section 15 of the Act. It provides that the Court may exercise all or any powers conferred on it through the Commissioners of the divisions or the Collectors of the district in which any, part of property of the disqualified proprietor may be situated or through ''any other person whom it may appoint for such purpose. The manager appointed by the Court of Wards is "any other person appointed for such purpose." Paragraphs of Section 15 provides:

The Court may from time to time delegate any of its powers to such Commissioners or Collectors or other person as aforesaid and may at any time revoke such delegation.

The question, therefore, resolves into this that when the Court purports to exercise any of its-powers through any of the persons indicated in the section, that exercise must be by observance of rules framed by it. The result, therefore, is when the officer concerned does not exercise the powers of the Court in accordance with the rules made by the Court, it cannot amount to exercise of power by the Court through him. Similarly with regard to delegation of powers, the Court has delegated powers through the agency of the Rules. When the officer does not observe the rules, he does not exercise the power delegated to him. Without the delegated powers the officer is functus officio. Viewed in this light, the rules are binding on the Manager. They may not have the force of law so far as third persons are concerned as held in a decision of the Calcutta High Court referred to in the judgment of the learned lower appellate Court. The relevant rules discussed at the Bar and relied upon by the Courts below are Rs. 72 and 228. Rule 72 is one of the rules under the heading "under Clause 2 of Section 15 of the Act the Court has, delegated the following powers to managers." Rule 72, as it stood at the time of the settlement, was:

Under Section 18 to sanction settlement or resettlements of raiyats holdings either at higher or lower rents than were paid previously, and to sanction reductions of rent due to relinquishment of holdings, deaths and desertion of raiyats, diluvion of lands or to any other cause, when the rental of each holding so settled or resettled does not exceed Rs. 50 and the reduction in each holding is less than Rs. 10. The reduction in any one year should not exceed Rs. 100 and must be reported to the Collector. When the holding is mukarrari, the Commissioner''s sanction is required to resettlements or reductions in rent.

This rule was replaced by correction slip No. 48, dated 15-7-1926, which reads:

Under Section 18 to sanction the creation of occupancy or non-occupancy holdings or the resettlement of holdings with occupancy or non-occupancy raiyats at'' higher or lower rents than were paid previously and to sanction reductions of rent due to relinquishment of holding, death and desertion of raiyat3, diluvion of lands or any other cause, when the rental of each holding so created or resettled does not exceed Rs. 50 and the reduction in each holding is less than Rs. 10. The reduction in any one year should not exceed Rs. 100 and must be reported to the Collector. When the holding is mokarrari, the Commissioner''s sanction is required.

As I have already said, the rule is nothing but definition of the powers delegated to the manager in the matter of settlement and resettlements. The rule opens with the words: "Under Section 18." The opening words signify that the manager is to do any of the acts referred to in the rule only when he judges the act to be most for the benefit and advantage of the minor. Two things arise out of this namely, (1) that he is the Judge as to the beneficial and advantageous character of the settlement; and (2) that besides other limits to his power, the provisions of Section 18 would be the determining factor in matters of the manager''s competency. The rule limits the power of settlement of holdings to cases when the rental of each holding does not exceed Rs. 50. Coming to the facts of the present case, it is a case of settlement of raiyati holding the rent of which is Rs. 35-15-0. The settlement, therefore, is within that delegated powers of the manager. I have quoted the substituted Rule 72 in order to show that the latter is not only different from the former but is clearer. Reading the two together it is clear to me that within Rule 72 then prevailing, the manager had the power to create an occupancy holding the rental of which does not exceed Rs. 50. He could do so without any reference to either the Collector or the Commissioner or the Court. So long as he acted as a delegate, his act is on the same footing as an act done by the Court. The only contention advanced to show that the manager exceeded his delegated powers is directed against the be official character or otherwise of the settlement. This contention must be overruled for the reasons already advanced for upholding the finding of the Court of appeal below that the settlement was a prudent one.

The next Rule is 228. The marginal note to this rule reads: "Procedure for grant and registration of leases." How far non-compliance with this rule vitiates a settlement made by a manager does not, in my opinion, fall to be considered in this case. Rule 72 defines the power, while this rule merely provides for a procedure or exercise of that power. If it was intended that the powers delegated in Rule 72 will be either governed or restricted by this procedural rule, we should expect something more express than is to be found in the rule itself. Free of any authority, I would hold that any mistake in the observance of a procedure prescribed in this rule will not make the act of the manager ultra vires or void. I am, however, bound by two Division Bench cases of this Court: Kamakshya Narain Singh Vs. Kheya Mian, and Kamakshya Narayan Singh v. Kanti Kumar Second Appeal No. 977 of 1946. The former lays down directly that non-compliance with Rule 241 of a later manual, which corresponds to Rule 228 with which I am dealing makes the setlement of the zirat land ultra vires. In that case in settling a zirat land the lease was effected without a registered document. This was in direct contravention of the procedural rule. In the other case, the questions for consideration were whether the rules were ultra vires and whether the permanent lease was in accordance with the rule. The Court held that the rules were not ultra vires. In this connection reliance was placed on the unreported decision just stated above. With regard to the granting of the permanent lease, it was held that under ordinary circumstances, the manager had no power to grant such lease. Manohar Lall J. observed:

Has the rule then been complied with in this case? To begin with, the impugned lease is a permanent lease. Therefore, the rule is at once infringed. No facts have been found or brought to our notice to show that any extraordinary circumstances existed in this case, e.g., the necessity or the benefit to the estate which rendered such a transaction (wholly abnormal and extraordinary) essential for the good of the estate.

None of the decisions, however, hit the present impugned settlement. This settlement has been effected by a registered kabuliat a required under E. 241. Secondly, the circum-stances influencing the settlement are far from ordinary. It has been found to be for the benefit of the estate in the logical analvsis of the facts and circumstancesthat constitute the context in which the lease was granted. Taking the view that Section 228 does in a limited sense, control Rule 72 to a certain extent, the present settlement has not been affected in contravention of the said rule.

Mr. Jha has taken me through certain sections of the Chota Nagpur Tenancy Act in order to demonstrate how accrual of occupancy right can be prevented in respect of the landlord''s privileged (zirat) lands. The basis of his contention is that under all circumstances, such precautions as will prevent accrual of occupancy rights in zirat lands should be taken by a manager of the Court of Wards: that whenever and wherever such precautions are not taken the settiement would be beyond the powers of the Court. This is an argument which I am not advised to countenance. I have given my reasons to show that in the present, case the settlement was rather for the benefit and advantage of the ward''s estate than otherwise. Mr. De contends that the "Court" must be credited with the knowledge of the provisions of the Chota Nagpur Tenancy Act. In such circumstances, if the Court at all intended that no settlement for creation of occupancy rights in zirat lands should be effected through the Court''s management, it should have said so expressly. To meet this argument, Mr. Jha has cited certain authorities including L.R. 7 Eng. & Ir. Appeal cases 653 at p. 657 to establish that no inference can be drawn from omissions. I quite agree. When the powers are defined under a statute or under statutory rules, their existence ought to be looked for in what has been said in the statute or the rule, as the case may be, not by implication from omission. Express negation or clear omission may certainly be taken into consideration in construing ambiguous or equivocal expressions occurring in statutes or rules defining the powers. The existence of certain powers cannot be argued inferentially from omissions of what could have been if so intended, expressly provided. But here in this case the manager has been delegated the power to sanction settlement. What are the limitations to this settlement have also been provided for in Rule 72, and I have already dealt with these limitations. Besides them we cannot imply other limitations simply because according to the tenancy law, such limitations will be more beneficial in the interests of the disqualified proprietor. Whether such limitations will be introduced into the rule because their introduction would make the management more beneficial to the ward''s estate, in the light of the provisions in the Chota Nagpur Tenancy Act barring accrual of occupancy rights in''zirat lands, is well answered by the limitations, provided in Section 18 of the Act, to the General Power of the Court which also applies to the powers of the Court''s delegates. Whether a precaution should be taken in a particular case, to prevent accrual of occupancy in respect of some zirat lands will be a matter for judgment of the officer concerned within the meaning of Section 18 of the Act. How far the civil Court can interfere with such judgment has already been dealt with by me.

Under the ciroumstances, I find no merit in this appeal which is, therefore, dismissed with costs.