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Judgment
Wort, J.—This is an appeal from a decision of the Judicial Commissioner of Chota Nagpur in an action in which the plaintiff claimed assessment of a fair rent or enhancement of rent. The defence shortly was that the tenure was held by the defendants on a rent fixed in perpetuity and therefore the rent could not be altered or enhanced. The short facts are that in the year 1879 the Chota Maharaja of Chakla Panchkote granted to the ancestor of the defendants a patni of mauza Noabadi Shyamakata at an annual rental of Rs. 18. There is no dispute apart from the question of the validity of the grant as to the grant being a patni on a rent fixed in perpetuity. One of the recitals in the patta was:
At present I am the Chhota Maharaja of Panchkote Chakla, After the death of my father Maharajadhiraj Bahadur the entire Chakla Panchkote will come into my possession. At that time the condition of this taluk of yours will not at all be changed and this settlement shall remain intact; and at that time according to the rule of other patni taluks of Chakla Panchkote, you will continue to pay six-monthly and twelve-monthly rents, etc.
I might at this stage mention one other provision which has a bearing on one of the points raised by way of preliminary objection. That provision runs thus:
If you raise objection on the ground of drought, inundation, death and abscondence (of tenants) lands lying waste and covered with sand and diluviated by river or on any other ground, etc., you shall get no remission of the amount of rent.
It is not necessary for me to mention any other provision of the patta except that it was described as a patni taluk and it was agreed between the parties that, apart from the question of the validity of the grant, it was a permanent taluka and had a rent fixed in perpetuity. The lower appellate Court, confirming the decision of the Deputy Collector of Manbhum, has enhanced the rent to a sum of Rs. 136.5-9 and from 1346 B. S. onwards to Rupees 181-13-0 per annum. The contention of the defendants, as I have indicated, was that the rent of the tenure was not liable to be enhanced and they also raised objections to the jurisdiction of the Courts below. The first objection was that the interest held by the defendants was not a tenure within the meaning of the Chota Nagpur Tenancy Act, and not being an ordinary agricultural tenancy it was governed by the Transfer of Property Act and was not liable to enhancement. u/s 3 (27), Chota Nagpur Tenancy Act:
''Tenure'' means the interest of a tenure holder, and includes an under-tenure, but does not include a mundari khunt kattidary tenancy.
u/s 5 of the Act:
''Tenure holder'' means primarily a person who has acquired from the proprietor, or from another tenure holder, a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it.
Now the point was but faintly argued and, in any event, I have no difficulty in coming to the conclusion in this case that the defendants were tenure holders, and the interest that they held was a tenure within the meaning of the Act. I have already made reference to that clause in the patta which refers to ''tenants'' and to its provisions against the objection on the ground of the tenants having absconded. There can be no doubt that amongst other rights which the tenure holder had under the patta he had the right of collection of rents from the ten-ants. To put it shortly, he was a person who came between the proprietor himself and the raiyats on the land, the agricultural tenants. The second point raised related to Section 9-A of the Act. Section 139, Clause 2 (b), gives cognizance to the Deputy Collector or Deputy Commissioner in all suits and applications not otherwise provided for by the Act for assessment of rent and for alteration of rent payable by the tenant. It is contended that this is a case otherwise provided for by Section 9-A of the Act which gives jurisdiction to the Deputy Commissioner to enhance the rent of a tenure holder or village headman whose rent was liable to enhancement. It was contended that the powers given to the Deputy Commissioner under that section were powers which existed only in those oases in which it was admitted that the rent was liable to enhancement. The substance of the argument was this that as soon as the defendants challenged the right of the plaintiffs to have the rent enhanced, the Deputy Commissioner ceased to have jurisdiction to put it in another way, the jurisdiction of the Deputy Commissioner extended only in those oases in which there was no question as to the right to enhance. In my judgment that objection is not well founded. It is quite clear from the general provisions of the Act that the jurisdiction lies in the Deputy Commissioner in cases of enhancement of rent, The right thus given by the Act would not be defeated by the mere statement of the defendants, well founded or otherwise, that there was no right to enhance the rent. In my judgment there is no sub-stance in either of the objections taken on the part of the defendants. This leads me to the consideration of the merits of the case. I take a somewhat different view of the patta from that held by the Courts below, but having regard to the course the case took, that view is immaterial. It was held by the Court below that the very statement to which I have referred in the patta, namely that it would be confirmed on the death of the Raja when the Chhota Raja came into the estate, was an indication that the Chhota Raja had no power to make the grant. It was quite possible that the Raja himself had granted this power to the Chhota Raja. But I suppose if that question had to be determined, it would be held that the onus would be on the defendants to show that the Chhota Raja had such a power. But as I have already indicated, neither of these questions is material for the reason that the parties in the Court below appear to have agreed that the Chhota Raja himself had no power to make the grant and the case in this Court must therefore be decided on that basis.
Now the substantial point argued by the appellant was that Section 43, T. P. Act, applied because at the time the grant was made the Chhota Baja had presumably no power to make the grant, but he acquired the power when his father died and he became the proprietor. The grant would therefore operate on the interest when the Chhota Raja became the proprietor. That point however seems to be disposed of by the facts of this case. I do not think that it could be seriously contended in this case that the defendants or their ancestor were not fully aware of the true state of affairs at the time of the grant. Now the decision of this Court in Ladu Narain Singh v. Gobardhan Das AIR 1925 Pat 470 has held (and there are other decisions to the same effect) that Section 43, T. P. Act, is nothing more than extension of the principle of estoppel to the law of Immovable property. If that be so, it is impossible to say that Section 43 would apply to a case in which the party to whom the grant was made was well aware of the true facts of the case; and whatever my view about Section 43 may be, it is clear for the purpose of decision of this case at any rate that the authority to which I have referred is binding upon me. Shortly stated, the argument of the plaintiff-respondent on this point was that Section 43 did not apply and could not apply because the defendants themselves or their ancestor well knew the position and therefore, could not be said to have been affected by the representation (if such there was) made by the Chhota Raja. Now another matter was argued in the Court below and that related to the fact that from 1879 almost to the present day rents had been accepted by the proprietors. In this connexion one fact must be stated, a fact referred to by the trial Court. Its finding is in these words:
A perusal of Ex. 8 would show that the then Chhota Raja Hari Narain Singh Deo became the Raja from 1305 to 1309 B. S. when the estate was under the management of the Encumbered Estate (Act 6, Management). There is no evidence, on record that Chhota Raja Hari Narain Singh Deo confirmed the patni grant when he became the Raja subsequently; as a matter of fact he did not obtain khas possession of the estate.
In this connexion it is necessary to notice that the learned Judicial Commissioner in the lower appellate Court seems to be under a misapprehension as to the provisions of the patta upon which he found a part of his decision. "It has been recited", says the Judicial Commissioner, that when the grantor becomes the Raja or the proprietor the right granted will be confirmed. There is nothing to show that there was any confirmation of that right.
Now this misstatement was made in connexion with the question of whether rent had been accepted and whether the grant had been confirmed. Now the actual reading of the patta is this:
After the death of my father the entire Chakla Panchkote will come into my possession. At that time the conditions of this taluk of yours will not at all be changed and this settlement shall remain intact.
Now, that is a covenant not to challenge the right of the defendants or their ancestor; in other words a covenant that no action will be taken. There is no provision in the patta to the effect that the right will be confirmed. Now in my judgment that has a very serious and a very important bearing upon the question which was discussed by the Judge in the Court below. Both the Courts have come to the conclusion that rent was paid. There is no dispute that rent was paid by this patni taluk. Both Courts however have come to the conclusion that there is no evidence as to the condition or circumstance under which it was paid, and one of the Judges has expressed himself in these terms. The learned Judicial Commissioner says:
These receipts cannot validate the original grant in any way. These receipts do not however show that they were granted in respect of any patni right acknowledging the nature of that right.
The receipts referred to were certain rent receipts. What I understand the Judge to mean is that although the rent was paid in respect of the patni there was no assertion by the defendants or their ancestor of any such right, at the time of payment, nor was a receipt granted by the proprietor or a person who was entitled to grant the receipt acknowledging the right of the defendants. As I have already pointed out, although the Chhota Raja who had made this grant was in fact the Baja and the proprietor, the estate was under the management of the Court of Wards during his time. I shall have to consider that matter in a moment; but for the time being. I propose to consider the case from the point of view that the Chhota Baja eventually became the proprietor of the estate ignoring the fact that the estate was under the Court of Wards. Now having regard to the covenant which he made in the patta, what would be the position ? Bent was received, and received for many years. Assuming that the estate had not gone under the Court of Wards management what would have been the position ? Could it possibly be said that the acceptance of rent from the defendants or their ancestor was not in fact and in law a confirmation of the right that was granted by the Chhota Raja when perhaps he had no power to make such a grant. The effect of the acceptance of rent would in my judgment be irresistible. Now two oases are relied upon in this connexion. The first was the decision of the Privy Council in Modhu Sudan Singh v. Rooke (1898) 25 Cal 1 and the other was the decision in Beni Pershad Koeri v. Dudhnath Roy (1900) 27 Cal 156. In the first case there was a grant by a widow beyond her powers. After her death rent was paid to the person then entitled, but there was one instance at any rate (that referred to at p. 8 of the Report) when payment was made into Court by lawyers, representing the tenant. It was held on the facts, including the fact that the money was drawn by the then proprietor, that it had the effect of operating as a recognition of the tenant''s right in the tenancy and constituting some kind of tenancy which would require a notice to determine. That was the decision of the Courts in India. But their Lordships of the Judicial Committee held that the taking of the rent which the petition stated to be due under the patni was prima facie an admission that the patni was still subsisting and an election by the Baja to treat it as valid.
In the argument it is pointed out that there are two differences between that case and this case: first, that that was the case of a grant by a widow whose grant was not ab initio void but merely voidable; and secondly, that the rent was paid on a representation and statement that it was paid in respect of a patni. But those differences do not very materially affect the case. It must be remembered that for the moment I am dealing with the case on the assumption that rent was paid to the Chhota Baja when he became the Baja and therefore entitled to the estate. The differences to which I have made reference do not affect this case for the reason that the acceptance of the rent was by a person different from the person who made the grant which in my judgment is a very material difference. I have already said and repeat that in my judgment acceptance of the rent by the Chhota Raja, if it had been the fact, would have been conclusive of the matter.
Now the other case was the case of Beni Pershad Koeri v. Dudhnath Roy (1900) 27 Cal 156. That was a case in which a grant had been made in lieu of maintenance. The grantor executed a document purporting to convey an interest greater than that which he had. It was held that the original grant not having extended to more than the life of the grantee, the kobala or patta executed by the grantor was void against the successor-in-title of the grantor and the acceptance of rent at the rate in the patta or kobala could not have the effect of confirming it in its entirety. That case therefore is easily distinguishable from the present one. Now that leads me to a consideration of the question of what is the effect of the estate being under the management of the Court of Wards throughout the period during which the so-called Chhota Raja was the proprietor. Sections 1 to 3 of Act 6 of 1876 deal generally with the effect of the estate being taken over by the Court of Wards. Section 4 deals with the duties of the manager. Sections 5 onwards deal with the settlement of debts, and then we come to an important section. Sections 13 onwards deal with the powers of the manager. This Section 13 first of all gives the manager power to call for details of claims made. Section 14. A gives power to the manager to
order all holders of tenures and under-tenures on property under his management to produce their evidence of title to such tenures and under-tenures.
Section 17 gives the manager power
to demise all or any part of the property under his management for any term of years or in perpetuity to take effect in possession, in consideration of any fine or fines or without fine, and reserving such rules and under such conditions as may be agreed upon.
Now without any further examination of the Act I refer to the decision of their Lordships of the Judicial Committee of the Privy Council which was not referred to in the argument advanced but which is a well-known decision and relevant on the question. That is the decision in Hukum Chand v. Ban Bahadur Singh AIR 1924 P C 156. Lord Shaw in delivering the opinion of their Lordships examined the Act and stated the effect of the Act and particularly the powers granted by the Act to the manager. In referring to the section to which I have made reference Lord Shaw made this statement:
Up to this point it is clear that the owner is disabled not only from acts of management but from mortgaging, charging, leasing or alienating the property, whereas on the other hand the manager is vested, and alone vested, with such powers. The latter is in short, in the eye of the law, fully and completely vested in the management of the estate, and the vesting in him continues during the tenure of his office.
Later, at p. 214, the following observation was made:
It is the further opinion of the Board that in the performance of such duties the manager is neither the servant nor the agent of another, be that other either a private intervenor or a public or political or departmental officer. The manager is himself the principal under the statute and he must conform in the discharge of his duties to the provisions of the Act.
Now let us examine the question of the effect of the receipt of the rent by the manager of the Court of Wards by asking this question. I am assuming for the moment that the Judge in the Court below is right in saying that the patta provided that when the Chhota Raja became the Raja the grant would be confirmed. That is not the case as I have already pointed out. It is merely an undertaking not to interfere or retract what has already been granted. But assuming that there was such an undertaking, what would be the effect of the manager specifically con. firming the grant which had been made in 1879. If it had been so, having regard to the powers which the manager has under Sections 14-A and 17, it would be impossible in my judgment to contend that the grant of 1879 was not subsisting, the short effect being that it would have been impossible in those circumstances for the plaintiff to succeed in obtaining an alteration of rent. Now if there had been this definite act on the part of the manager, the conclusion, at which I have arrived is that the grant would have been confirmed. Now that was the effect of his accepting rent. He was entitled to call for titles of persons holding tenures. He was entitled in this case to call upon the defendants or their predecessors in title to show what was their title, and I have no doubt, had he been so disposed and had come to the conclusion that the Chhota Raja had no power to make such a grant and that the rent was inadequate, that he might have repudiated the grant made to the defendants. In connection with Section 14-A I might say I am bound to assume that the manager had full knowledge of the facts and that he did his duty in the circumstances of the case. He did not repudiate the title of the grantee we know. He had powers, as I have already stated, u/s 17 of making a grant in perpetuity. Now, having regard to the position of the manager, as stated by their Lordships of the Judicial Committee, can it possibly be contended that the effect of the acceptance of rent with regard to this grant was not the same as if it had been accepted by the Raja himself ? In my judgment, as I say, I find it impossible to come to the conclusion that the effect was not the same. I am not forgetting in this case that the Judge in the Court below has pointed out that there is no evidence that the rent was paid in respect of and acknowledging the nature of the patni right. I understand him to mean that no assertion was made that the defendants bad a patni right at the time, but it is not a denial of the fact that the rent was paid in respect of the patni taluk. No evidence was needed of that fact. The rent was paid year by year at the rate of Rs. 18 and it could have been only in respect of the grant of 1879. In my judgment the effect of the acceptance of the rent is just the same as if the Chhota Raja himself coming into power had made the grant. In those circumstances, the rent of the tenure ought not to have been enhanced and the suit ought to have been dismissed. The result is that the appeal is allowed with costs throughout. As there will be a large number of cases depending on this decision, I grant leave to appeal under the Letters Patent.
Judgment of Letters Patent Appeal.
Courtney-Terrell, C.J.
This is a Letters Patent appeal from a decision of a learned Judge of this Court sitting singly. The suit was one by the plaintiff, who is the appellant before us, for enhancement of the rent of a tenure in Chota Nagpur. The defence of the defendants was that their predecessors were granted a permanent patni lease by the predecessors of the plaintiff and that the rent was a fixed rent of Rs. 18 which was not enhanceable. The lower Courts held that the tenure upon which the defendants held was not a permanent tenure and that the rent was enhanceable. The learned Judge reversed those findings and allowed the appeal, thus refusing enhancement. In addition to the ground relied upon by the learned Judge for allowing the appeal, there is a further ground which, in my opinion, is conclusive but which did not find favour with him and therefore I will explain it.
The grant upon which the defendants relied was made in the year 1879. It was a grant not by the present plaintiff, the Raja of the estate in question, but was made in the lifetime of a former Raja who is now dead. The grant, however, was not made by this former Raja in form but was made by his son then described as the Chhota Raja. The form of the grant is to this effect. The Chhota Raja purports to grant a permanent tenure at a fixed rate to the then predecessors of the defendants. He then states that his father, the Raja, is still alive, and then goes on further to state that when he (the grantor) shall come into the estate he will do nothing to disturb the permanent grant which he was at the time purporting to make. The persons to whom the grant was made were at that time in possession of a portion of the estate as tenants, though not on the terms of a permanent grant. After the date of the grant, they continued to pay the rent which they had heretofore been in the habit of paying, namely the same sum of Rs. 18 as fixed by the grant, and they paid that rent during the lifetime of the Raja (the father). The grantor received a consideration in the shape of salami on the grant of the lease. The receipts that were produced to the Court purported to be granted by the moharrir of the estate bearing the seal of his office and in all oases referring to the tenants as the Patni talukdars of this mauza in question. About 1897 the Raja died and was succeeded by the person hitherto known as the Chhota Raja and the grantor of the tenancy in question. For a considerable time the estate remained under the Court of Wards and they also received rents from the tenants, but the form of the acknowledgment of receipt was not forthcoming at the trial. It may or may not be true that the Chhota Raja was authorized by his father to grant permanent patnis. The evidence on this question is inconclusive, but there is certainly no evidence that he had not such power. Let it be granted that he had not such power from his father; he nevertheless by granting this permanent tenure represented that he had authority and title to grant the permanent tenure. Now his subsequent mention of the fact that his father was still alive and that he would not interfere with the permanent grant when he should attain the gaddi cannot be interpreted as intimating to the tenants that he had not authority to make the grant which he purported to make. ''There is no evidence on the record tending to show the state of mind of the tenants as to the right of the Chhota Raja to grant the permanent lease other than the expression in the document itself of the fact of the Raja (the father) being still alive and of the intention of the Chhota Raja not to disturb the permanent tenure when he should become the Raja; and this, to my mind, cannot be interpreted as an intimation that there was any limitation on the power of the Chhota Raja to make the grant.
The Courts below have thought that Section 43, T. P. Act, was not applicable because they have imagined that both parties were aware of the defect in the grantor''s title but the awareness of that defect is inferred only from the words of the document itself. In my opinion such awareness cannot be inferred from the document: in fact the mention of the Raja''s father is a mere emphasis upon the covenant of the Chhota Raja that he had implied authority notwithstanding the fact that he had not yet attained the gaddi to make the grant, and it is an emphasis on his assurance that when he should attain the gaddi the grant now made should not be disturbed. Therefore, we have the double fact that the Raja (the father of the Chhota Raja) was granting receipts in his own lifetime, recognizing the defendants as patni talukdars which is evidence itself of the authority of the Chhota Raja, and we have the further fact that the Raja himself ultimately attained the gaddi and thereby would be bound u/s 43, T. P. Act, to make good the representation of his early authority in any event. For these reasons it is clear that the defence of the defendants that they had a permanent tenure should have succeeded. I agree with the learned Judge of this Court in his decision allowing the appeal with costs throughout and I would dismiss this appeal in Letters Patent from his decision also with costs.
James, J.
I agree.