Mt. Puna Bibi and Others vs Sri Sri Keshab Rai Ji Thakur

Wort, Ag. C.J.

This is an appeal by the defendant arising out of an action in which the plaintiff claims to resume certain property under a lease which it was contended was invalid. The plaintiff has succeeded and the defendant, as I have said, appeals.

There were several questions argued in the Court below and the case was the subject-matter of various decisions as it was remanded in the first instance by the first Court of appeal for the determination of certain questions. The matter was retried and came before the appellate Court on the second occasion. Three main points were then argued: first whether the property was debutter property; secondly whether the action was barred by limitation; and thirdly whether there had been any estoppel or waiver as it was called. The argument put up by Mr. Sushil Madhab Mullick on behalf of the appellant arises out of certain facts to which I shall now have to make reference. The action was brought by an idol through a shebait. A lease was originally granted by one Ram Chandra Acharya Goswami and be was succeeded by Raj Gopal Acharya Goswami. The latter died and during the course of this action the present shebait was substituted.

It was contended during the course of the argument (and this is the only substantial point argued in this appeal) that the successor of the grantor waived all his rights with regard to resumption of the property by reason of having done certain acts (I put it in that somewhat vague manner) which amounted to a waiver. The learned Judge in the Court below in disposing of this question has concluded the matter by this statement, referring to the acts to which I have referred: "These cannot, however, in my opinion, show any recognition by Raj Gopal Acharya Goswami." That finding in my judgment is conclusive. The parties in the Court below relied upon what they described as estoppel or waiver, but, as I understand the argument advanced, it was rather that they were relying upon facts which in substance would have established a new tenancy as between the Shebait Raj Gopal Acharya Goswami and the defendant.

Now one of the contentions addressed to me by Mr. P.R. Das, who appears for the respondent, was that this point of waiver or estoppel does not arise by reason of the fact that the action was not by the shebait but by the idol through the shebait and that therefore in substance the acts of the shebait could in no way bind the idol. That in substance was the argument. It has been said that an idol or deity is in the position of a perpetual minor, but the analogy between a minor and his next friend and an idol and the person through whom the action is brought is not entirely parallel. There are some distinctions and one of them is that in the case of a minor, the next friend appearing for the minor, neither the cause of action nor the defences which might be urged against that cause of action are in any sense personal to the next friend. That cannot be said, however, in all instances in the case of a shebait bringing an action on behalf of an idol, and if the case in any way depended upon the distinction which Mr. Das seeks to draw, I should be quite clearly of the opinion that the point failed; but the case does not depend upon that. Whether a new tenancy has been created can never be said to be a pure question of law; it is a question of mixed fact and law and a question which certainly depends upon a number of facts.

Now the learned Judge in the Court below, as I have already pointed out, comes quite clearly to the opinion that in the circumstances there was no waiver and that, in my judgment, is sufficient to dispose of the matter. But I propose to refer to another question briefly, which, in my opinion, assists the respondent materially with regard to this question. It has been pointed out that this matter in its present form was raised only at a late stage in the action. The learned Judge in the Court below has certainly framed an issue to the effect, "Is the suit barred by the law of estoppel and acquiescence," and the plea upon which that issue is based is quite clearly contained in para. 4 of the written statement which has no reference to the particular matter put before me in this Court. I am not prepared to say that had the learned Judge in the Court below allowed the parties to give evidence on the point directly in issue before him, and if that evidence had established the contention of the defendant, I would not be prepared to hold that the learned Judge was not entitled to decide the question.

But having regard to the course of events in the Court below and having regard to the decision of the learned Judge in appeal, I am quite clearly of the opinion that the point cannot succeed: I have already held that the matter is partly a question of law and partly a question of fact. In so far as it is a question of fact, the learned Judge has decided against the defendant and in any event the facts as stated in the judgment and the facts relied upon by the defendant are insufficient to establish a case such as the defendant would be obliged to establish in order to defeat the plaintiff in this action. For these reasons, in my judgment, the appeal fails and must be dismissed with costs.