Satyendra Chandra Bhattacharjee vs Hiralal Maheswari

Chittatosh Mookerjee, J.—The Plaintiff is the Appellant in this second appeal. He instituted a suit inter alia, for declaration of his leasehold right in premises No. 18/2, Ekbalpore Road, Calcutta, for permanent injunction to restrain the Defendants-Respondent No. 1 from recovering khas possession of the said property as a result of auction-purchase in Money Execution case No. 4 of 1963 and for mandatory injunction. The Defendant-Respondent No. 1 alone contested the said suit. The learned Munsif, Third Additional Court, Alipore, decreed in part the said suit in favour of the Plaintiff. The Defendant No. 1 being aggrieved by the said decision preferred an appeal. The learned Subordinate Judge, Fourth Court, Alipore, allowed the said appeal and dismissed the suit of the Plaintiff-Appellant. Thereafter, the Plaintiff has preferred this second appeal.

Admittedly, the suit property formed part of the debottar estate of Sri Sri Radha Ballav Jew Thakur, the Respondent No. 3 ; Bijoli Bhusan Ghosh, the Respondent No. 4, was described as the shebait of the said deity. On February 21, 1952, Bijoli Bhusan Ghosh executed a deed of lease (Ex. 23) for a term of 55 years in favour of the Plaintiff-Appellant in respect of the single storied house on a land measuring more or less 2 cottahs in 18/2, Ekbalpore Lane. According to the recitals in the said deed, the Plaintiff had, paid a sum of Rs. 3,000 by way of advance rent for the entire period. Since then the Plaintiff had been possessing the suit property. His name had been also mutated as an occupier in the records of the Corporation of Calcutta.

On January 9, 1961, there was an agreement for sale (Ex. 13) of 18, Ekbalpore Lane, consisting of one storied structure and 6 cottahs of land between the debottar estate of the Defendant No. 3 deity represented by its shebait the said Bijoli Bhusan Ghosh, the Respondent No. 4 and Gokul Chandra Pyne, the Respondent No. 2. The latter had advanced Rs. 4,000 under the said agreement. Subsequently, the Respondent No. 2 Gokul Chandra Pyne brought Money Suit No. 99 of 1961 for recovery of Rs. 4,398 in the Second Court of Munsif at Alipore, against the Respondent No. 3 deity represented by its shebait Bijoli Bhusan Ghosh (Ex. 14). On March 1, 1962, the said money suit was decreed on compromise (vide Ex. 15). Thereafter, Gokul Chandra Pyne filed Money Execution case No. 4 of 1963 for realization of the said decretal amount from the judgment-debtor the Respondent No. 4 as the shebait of the said deity. Ultimately, on February 20, 1964, the Defendant-Respondent No. 1 for Rs. 12,900 auction-purchased the property No. 18/2, Ekbalpore Lane, in the said Money Execution case No. 4 of 1963 (vide Ex. ''A''). The Plaintiff filed an objection in the said execution case which was not successful. Thereafter, he instituted the present suit out of which this appeal arises.

The first point in this second appeal is whether the aforesaid deed of lease dated February 21, 1962, (Ex. 23) was granted by Bijoli Bhusan Ghosh in his personal capacity or as a shebait of the deity Sri Sri Radha Ballav Jew Thakur. The second question is whether the said lease even if granted on behalf of the deity was valid and binding upon the auction-purchaser in Money Execution case No. 4 of 1962 (that is, the Defendant No. 1). The third point is whether the said lease dated February 21, 1952, was hit by Section 207 of the Indian Succession Act, 1925 and whether the Defendant No. 1 was entitled to avoid the said lease.

In my view, the learned Subordinate Judge wrongly interpreted the deed of lease (Ex. 23) executed by Bijoli Bhusan Ghosh in favour of the Plaintiff. The learned Subordinate Judge himself observed that Bijoli Bhusan Ghosh was admittedly the shebait of the deity to whom the disputed property belonged. The learned Subordinate Judge in his judgment quoted para. 529(3) from Mulla''s Hindu Law (14th ed.). It has been stated in the passage:

It is a question of fact in each case whether a particular act done by a person was done by him in his capacity of guardian or on his own behalf and on his own account. In the former case, the act binds the minor, provided it was otherwise within the power of the guardian ; in the latter case, it does not. The mere fact that the name of the minor is not mentioned in a contract, or in a deed of sale or mortgage, is not conclusive proof that the transaction was not entered into on behalf of the minor. In each case, the language of the document and the circumstances in which it was executed must be considered.

The learned Subordinate Judge in the instant case did not carefully examine the language of the document (Ex. 23) and the surrounding circumstances. The evidence on record indicates that Bijoli Bhusan Ghosh as shebait previously obtained a decree for ejectment against one G. D''Souza who was a tenant of the suit property. On November 26, 1951, P.N. Mookerjee J. dismissed the second appeal of D''Souza but granted him six months'' time to vacate (vide Ex. 10). On May 20, 1952, the Corporation of Calcutta served notice under Rule 5(1), Schedule XVII of the Calcutta Municipal Act, 1951, upon the owner of the said holding stating that the property was in a dangerous condition and should be demolished Ex. 9(b). When Bijoli Bhusan had executed the lease (Ex. 23) in favour of the Plaintiff, D''Souza the previous tenant was still in occupation and he had only vacated on July 23, 1952 (Ex. 11). The lease deed (vide Ex. 23) also stated that a considerable amount was necessary for effecting repairs and the estate had no funds. The lessee would execute necessary repairs. The Corporation of Calcutta had started a case against the deity, the Defendant No. 3, its shebait Bijoli Bhusan in the Municipal Magistrate''s Court for not complying with the demolition notice (Exs. 12 and 12(a)). The recitals in the deed (Ex. 23) also showed that Bijoli Bhusan Ghosh, the Defendant No. 4, had executed the said lease deed (Ex. 23) on behalf of the Defendant No. 3 deity. In the tenth line of the document, the first party, that is the Defendant No. 4, was described as shebait of the debottar trust estate. In lines 12th to 23rd of the document (Ex. 23) the alleged legal necessities were set out. The 24th line of the deed (Ex. 23) contained the assertion that the said shebait, that is the Defendant No. 4, in the best interest of the said estate had agreed to let out on lease the said premises No. 18/2, Ekbalpore Lane (see the judgment of the trial Court at p. 5 of the Paper Book). Accordingly, I agree with the trial Court that the lease (Ex. 23) was entered into by the Defendant No. 4 on behalf of the deity and not in his personal capacity.

The decision in Banku Behari Mondal v. Banku Behari Hazra 47 C.W.N. 288 (292), referred to both by the learned Munsif and the learned Subordinate Judge was clearly distinguishable on facts. In the said case two persons named Fakir and Khanda who were neither de jure nor de facto guardian of the minors had executed the sale deeds (Exs. ''A'' and ''A(1)''). Pal J. in Banku Behari Mondal v. Banku Behari Hazra (Supra) recorded:

In our opinion he was not the guardian of the minors, either natural or de jure or de facto.

The learned Judge also observed that in the said case, the Court of appeal below had found that the transfer of the minor''s property was by an unauthorised person and did not affect the interest of the minors. His Lordship proceeded to observe that the documents in question were executed only by Fakir in his personal capacity and not as guardian of the minors nor on behalf of the minors. But, I have already pointed out the lease deed (Ex. 23) contained categorically recitals that the lease was being entered into and for the benefit and legal necessity of the deity. The Defendant No. 4 in the body of the lease deed described himself as the shebait.

On January 9, 1961, there was an agreement for sale between the Defendant No. 4 Bijoli Bhusan Ghosh and the Defendant No. 2 for sale of 18, Ekbalpore Road. Subsequently, the Defendant no, 2 instituted Money Suit No. 99 of 1961 against the deity represented by the Defendant No. 4. On March 1, 1962, the said money suit was decreed. Thereafter, the Defendant No. 2 filed Money Execution case No. 4 of 1963 for realization of the decretal dues. The deity represented by the Defendant No. 4 was described as the judgment-debtor. Ultimately, the Defendant No. 1 auction-purchased the right, title and interest of the said judgment-debtor.

But the Defendant No. 1 claimed to be an auction-purchaser of the suit property in an execution sale arising out of a decree in a money suit obtained by the Defendant No. 2 against the Defendant No. 3 deity represented by the Defendant No. 4 Bijoli Bhusan Ghosh. In other words, the Defendant No. 1 claimed to be a transferee in an involuntary sale in execution of a money decree passed against Bijoli Bhusan Ghosh, representing the deity, the Defendant No. 3. The Defendant No. 1 derived his right through the said shebait Bijoli Bhusan Ghosh, the Defendant No. 4. In such circumstances, I fail to see how the Defendant No. 1 can challenge the lease (Ex. 23) executed by Bijoli Bhusaai Ghosh, the Defendant No. 4, prior to the auction sale in his favour. It is well-settled that the power of a shebait or a Mohunt to alienate debottar property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Persaud v. Mussamat Babooee (1956) 6 M.I.A. 393. As held in that case, he had no power to alienate debottar property except ''in a case of need or for the benefit of the estate''. He could not, except for legal necessity, grant a permanent lease of debottar property, though he might create proper derivative tenures and estates conformable to usage (see Mulla''s Hindu Law, 14th. ed., p. 489). But Bijoli Bhusan Ghosh or a subsequent alienee from him cannot be allowed to challenge the lease granted by Bijoli Bhusan. A successor shebait or any other person having possession or management of the debottar properties might have sufficient interest to maintain a suit challenging the said alienation by way of a lease by Bijoli Bhusan Ghosh.

Mr. Lala, the learned Advocate for the Appellant, in this connection has drawn my attention to the book On Hindu Law of Religious and Charitable Trusts (3rd ed., p. 229) by Dr. B.K. Mukherjea:

A contract for a permanent lease of a debottar property cannot certainly be enforced in the absence of any legal necessity but when the grant has already been made by a shebait, the correct position seems to be that it is operative at least during the tenure of office of the grantor. The question was elaborately considered by the Judicial Committee in the case of Ponnambala Dasikar v. Periyanan L.R. 63 IndAp 261 and it was laid down after a review of the various authorities on the point that transfer of endowed property, whether it be by the head of mutt, or the shebait of a family idol, or the dhaTmakarta of a temple, all stand on the same footing and hold good for the period of office of the transferor. In an earlier pronouncement of the Privy Council Naina Pillai v. Ramanathan L.R. 51 IndAp 83, such result was accounted for by a personal bar or estoppel which prevented the manager from taking steps to avoid his own grant. This, it was pointed out, was not the correct view. As the property vests in the deity and not in the manager at all, it is not possible to invoke the notice of personal bar as regulating the validity or invalidity of the transaction. Then again, the presence or absence of personal interest of the manager in the endowment would hardly be regarded as a deciding factor. Their Lordships quoted with approval certain passages from the judgment of Lord Buckmaster in Subbaiya v. Musiapha L.R. 50 IndAp 295, which in their opinion laid down the law on the subject. The passages stand as follows:

In each case they relate to the effect of an attempt on the part of a trustee to dispose of the property by a permanent mukurrari lease. This, he has no power to do, though he is at liberty to dispose of it during the period of his life and grant for a longer period is good, but good only to the extent of his own life interest.

On the other hand, Mr. Ranadeb Chowdhury, learned Advocate for the Respondent No. 1, has contended that the lease (Ex. 23) in favour of the Plaintiff was executed by Bijoli Bhusan Ghosh, the Defendant No. 4, without obtaining permission of the Court in terms of Section 307 of the Indian Succession Act. Therefore, the said lease in favour of the Plaintiff was a voidable one. The Defendant No. 1 who was an auction-purchaser of the said property as a person interested in the property was entitled to avoid the said disposal by way of lease of the property by Bijoli Bhusan Ghosh, the Defendant No. 4, in favour of the Plaintiff. According to Mr. Chowdhury, it was not necessary for the Defendant No. 1 to bring a suit for avoiding the said lease and his client was entitled to take the said point by way of defence in the instant suit.

It is the common case of both the parties that Bijoli Bhusan Ghosh, the Defendant No. 4, was the shebait of the Defendant No. 3 deity. The parties did not lead any clear evidence as to when Bijoli was appointed as the Administrator in Act XXXIX case No. 42 of 1918. The bainanama, dated January 9, 1961, between Gokul Chandra Pyne, the Defendant No. 2 and Sri Radha Ballav Jew Thakur represented by his shebait, the Defendant No. 4, (Ex. 13) contained some recitals regarding the history of the said debottar estate. Strictly speaking, these recitals are not primary evidence. But, in the absence of any other evidence we may refer to these recitals in the bainanama (Ex. 13). It was stated that one Rupchand Ghosh was the owner of 18, Ekbalpore Lane, comprising 6 cottahs of land, structure etc. On February 23, 1918, Rupchand Ghosh executed a registered will dedicating the, said property and also other items of property in favour of the deity Sri Radha Ballav Jew Thakur installed by him. After the death of Rupchand Ghosh his widow Gayeshwari Dassi was appointed as ''executor'' by the District Delegate, 24-Parganas in case No. 42 of 1918 under Act V. After she died, her son Habul Chandra Ghosh in terms of the will became the shebait and performed seva-puja of the deity. After the death of Habul Chandra Ghosh, his son Bijoli Bhusan Ghosh, the Defendant No. 4, had become the shebait.

There is, however, no evidence when Habul Chandra Ghosh died. The entire order-sheet of Act XXXIX Suit No. 42 of 1918 was not exhibited in the present case. Exhibit B(2) was the certified copy of the order-sheet in the said case commencing from April 27, 1964. Exhibit B(5) was the certified copy of the Order No. 1 dated March 30, 1954, of the said case No. 42 of 1918 of the Court of the District Delegate, Alipore. Exhibit B(5) is the earliest order produced by the Defendant No. 1 which described Bijoli Bhusan Ghosh as the Administrator and shebait. The District Delegate recorded in the said Order No. 1 that Sri Bijoli Bhusan Ghosh, Administrator and shebait of Sri Sri Radha Ballav Jew Thakur, had put in a petition praying for permission to settle the two properties mentioned in the petition with two tenants either permanently in mourasi right or on reasonably long terms or for the benefit of the Thakur and to avoid litigation. The said Order No. 1 noted that ''Records had been destroyed under the Rules''.

The learned District Delegate directed issue of notice upon tenants to state under what circumstances they were on the land. April 10, 1954, was fixed for order.

The actual order, if any, appointing Bijoli Bhusan Ghosh, the Defendant No. 4, as the Administrator was not produced. The fact that the Order No. 1 in Act XXXIX Suit No. 42 of 1918 was dated March 30, 1954, would indicate that the said case was revived on March 30, 1954. No copy of the order passed in the said Act V case No. 42 of 1918 granting permission to Bijoli Bhusan Ghosh to sell the premises No. 18, Ekbalpore Lane to Gokul Chandra Pyne was also exhibited. The bainanama (Ex. 13), however, recited that with the permission from the competent Court the vendor having declared his intention to sell property the vendee had agreed to purchase at the highest market-price of Rs. 25,000. There is also nothing to record that the said execution case was started or the auction sale of the suit property was held with the permission of the learned District Delegate.

In the above view, I need not deal with the submission of the learned Advocate for the Respondent. Not that when the shebait is appointed Administrator, his power of alienation would be subject to Section 307 of the Indian Succession Act, 1925 : vide Ranjit Sing Vs. Amullya Prosad Ghose and others . Further, the observation of Stephen J. on the said case that a karta, who is also the Administrator cannot exercise powers as karta which he is directly prevented from exercising as Administrator were obiter. The entire records of the said case No. 42 were not produced in the instant suit. I have already observed that the evidence does not show the precise date when the Defendant No. 4 was appointed as an Administrator in the above suit. The trial Court recorded in its judgment that

it is not disputed that at the relevant time, i.e. 1952, the property became that of the legatee, i.e. Defendant No. 3, u/s 211 of the Indian Succession Act. Administrator has nothing to do when the property becomes that of the legatee.

According to the trial Court the legal status of the Defendant No. 4 was that of a shebait and not of an administrator and the bar of Section 307 of the Indian Succession Act did not apply. The learned Munsif alternatively held that in case Section 307 of the Indian Succession Act was attracted the lease in favour of the Plaintiff being voidable one, requires to be avoided. The lower appellate Court while observing that neither the Will nor the Probate had been produced and that it was not in a position to know whether or not the estate had been administered or yet to be administered. But the order-sheet (Ex. ''B'' series) showed that the Defendant No. 4 had sought permission of the District Delegate describing himself as Administrator-cum-shebait. But, at the same time, the lower appellate Court found that the estate had not been administered and Bijoli Bhusan Ghosh being an Administrator had no power to lease out the property for more than five years. These findings of the lower appellate Court seem to be inconsistent with its observation that all the materials were not before it. Secondly, I have already held that there was no evidence on record that in the year 1952 when the lease was granted, Bijoli Bhusan Ghosh had been already appointed as the Administrator. Therefore, the lower appellate Court has erred in applying the provision of Section 307 of the Indian Succession Act to the aforesaid lease deed in favour of the Plaintiff (Ex. 23). Even if it is assumed that Bijoli Bhusan Ghosh, the Defendant No. 4, was both the Administrator and the shebait when he executed the said lease, in my view, there is another serious impediment in the way of the Defendant No. 1 invoking the provision of Section 307(2)(iii) of the Indian Succession Act. Unlike private sale there is no warranty of title in case of a sale under a decree. In other words, a purchaser in a Court sale buys the properties with all risks and all defects in the judgment-debtor''s title, except where it is found that the judgment-debtor has no saleable interest at all (see Mulla''s Code of Civil Procedure, 13th ed., vol. 11, pp. 1199-1200). In the instant case, long before the auction-purchases by the Respondent No. 1, Bijoli Bhusan Ghosh, the Defendant No. 4, as the shebait of the deity had executed a lease for 55 years in favour of the Plaintiff. Therefore, the said auction-purchase was subject to the said subsisting lease.

I have already referred to the contention of the Appellant that in any event the lease in favour of the Plaintiff would be binding upon the present shebait Bijoli Bhusan Ghosh irrespective of the question of legal necessity. Dr. B.K. Mukherjea in his book On Hindu Law of Religious and Charitable Trusts (3rd ed., p. 295) observed:

A permanent lease of Mutt property granted by a Mohunt is not void altogether. It is operative at least during the tenure of office of the grantor.

The learned author also observed (p. 297):

Thus, so far as the legal consequences flowing from an alienation are concerned, there is no difference between a permanent lease of complete alienation of endowed property and in this respect the position of the head of a Mutt, the shebait of a family idol or the dharmakarta of a temple is identically the same.

In the instant case, the Defendant No. 1 claimed his title through the auction sale of the debottar property represented by the same person, namely, Bijoli Bhusan Ghosh. Therefore, in my view, the Defendant No. 1 cannot challenge the aforesaid lease executed by Bijoli Bhusan Ghosh in favour of the Plaintiff.

Thus, the materials on record are not sufficient to show that the Plaintiff Bijoli Bhusan Ghosh, the Defendant No. 4, had been already appointed as an Administrator. Secondly, assuming at that date that Bijoli Bhusan Ghosh was the Administrator, the said lease of debottar property for a term exceeding five years was voidable at the instance of any other person interested in the property (vide Section 307(2)(iii) of the Indian Succession Act).

Maclean C.J. and Geidt J. in Shubhadra Dassya and another Vs. Chandra Kumar Nag and others held that a lease for a term exceeding five years granted by an administrator would be hit by Section 90(4) of the Probate and Administration Act, 1881. The said provision did not make the lease void. But, it was voidable only at the instance of any person interested in the property and when the Legislature said that it was voidable only, it indicated that, as between the lessor and lessee, the lease was not void. The lease, therefore, was good.

The decision in Chandri Ayal Abdul Haji Sajan Vs. Abdul Karim Lalbhai Shet, which was relied upon by Mr. Chowdhury, the learned Advocate for the Respondent No. 1, is distinguishable on facts. In the said case, an administrator who was also a beneficiary to the extent of 2 as interest contested suit brought by a mortgagee for recovery of the money due. The Division Bench dealt with the question whether the administratrix who was a mortgagor could derogate from her grant and plead that as no sanction of the Court was obtained u/s 90(4) of the Probate and Administration Act the mortgage was voidable. The Division Bench pointed out that in the said case, the curious circumstance was that the beneficiaries who had remaining 14 as interest actually applied to be added as parties. But, the learned Single Judge had rejected the said application of beneficiaries. The Division Bench held that in the facts of the said case leave should have been granted to the beneficiaries who had 14/16th share to contest the suit, so that all disputes could be settled at once and not to leave the parties to multiplicity of suits. The real question was whether the mortgage could be enforced against the persons who had 14/16th share. The point was, however, kept open. The Division Bench observed that the suggestion that a mortgagor could not derogate from her grant that point really did not arise there, because they had not got all the proper mortgagors before the Court Supra (1366).

The decision of Banerjee and Gordon JJ. in Jagabandhu Dey Poddar v. Dwarika Nath Addya ILR 23 Cal. 446 also does not assist the case of the Respondent No. 1. In the said case, the Division Bench found that the kobala executed by the Defendant No. 2 who was the Administrator in favour of the Defendant No. 1 was not subject to any valid restriction. The Defendant No. 2 had power to make alienation. The Division Bench further observed:

...even if there had been any valid restriction to the power of the Defendant No. 2 to alienate the property under this Will, the alienation is only voidable by Sub-section (4) of Section 90 and voidable at the instance of a ''person interested in the property''.

According to the Division Bench ''any other person interested in the property'' in Sub-section (4) of Section 90 must mean any person interested in the property independently of the executor those alienation he was seeking to avoid. In the said case, the Plaintiff being a creditor of the Defendant No. 2 in his personal capacity was held not to have any right independently of the Defendant No. 2 and he was, accordingly, entitled not to avoid the alienation.

In the instant case, the lease in favour of the Plaintiff was executed long before the Defendant No. 4 as shebait purported to enter into an agreement with the Defendant No. 2. When the said lease was executed there was no question of defeating the future claim of the Defendant No. 1. Further, the Defendant No. 2 had obtained a money decree against the debottar estate represented by the Defendant No. 4. As already stated, ultimately the Defendant No. 1 auction-purchased in the execution case filed by the Defendant No. 2 against the Defendant No. 4 as shebait representing the deity the Defendant No. 3.

The decision in Laxmidas Goculdas Dossa Vs. Ismail Gafoor Kassum, does not apply. It was held that an administrator cannot mortgage immovable property without permission of the Court as required by Section 96(4) of the Probate and Administration Act. The mortgagee from the administrator in such circumstances could not claim priority over the claim of other creditors of the estate of the deceased who had attached the sum of Rs. 13,000 in question. Such creditor had an interest in all the estate and was entitled to that estate to satisfy his claim. The administrate disposing of the property by way of mortgage without permission cannot defeat the claims of the said creditor.

The Defendant No. 1 was not a creditor of Rupchand Ghosh who by a will had dedicated the suit property in favour of the Defendant No. 3 deity. Bijoli Bhusan Ghosh as shebait of the deity incurred liability to refund the money received by him from the Defendant No. 2 at the time of the execution of the bainanama (Ex. 13). The Defendant No. 1 was the auction-purchaser in the sale held in the execution case for realization of the decretal dues from the Defendant No. 4 representing the deity. Therefore, I hold that the Defendant No. 1 did not answer the description ''any other person interested'' u/s 307(2)(iii).

In view of my above findings, strictly it is not necessary to examine at length the correctness of the submission of Mr. Chowdhury, the learned Advocate for the Respondent No. 1, that ''any other person interested'' need not bring a separate suit for avoiding a transfer made by an executor or an administrator without permission of the Court in terms of Section 307(2) of the Indian Succession Act. In this connection, Mr. Chowdhury had relied upon the observations of Kinkhede, Acting Judicial Commissioner, in AIR 1927 57 (Nagpur) . It was held in the said case that alienation with permission of the Court obtained by fraud or misrepresentation being voidable only, its avoidance could be even by setting up a defence to a suit to enforce it and not necessarily by bringing a suit to have it set aside. In this connection, my attention has been also drawn to the Single Bench decision of the Bombay High Court in Gotiram Nathu Mendre Vs. Sonabai and Others, . The learned Judge in the said case held that where a sale being in contravention of Section 307(2) it is voidable at the instance of a person interested and he can only get it set aside by a suit. The learned Judge distinguished this with the right of a reversioner to treat a sale by a holder of a limited estate as nullity. A sale by an executor in contravention of the will being voidable, a legatee has to sue to set aside the sale. I have already held that the Defendant No. 1 is not entitled to question the validity of the lease granted by Bijoli Bhusan Ghosh as shebait. Therefore, I need not persue the point.

The learned Munsif found that there was legal necessity of the debottar estate for granting 3 lease in favour of the Plaintiff. The lower appellate Court reversed the said finding. There is considerable substance in the contention of the Appellant that the lower appellate Court did so without applying its mind to the totality of the evidence. The lower appellate Court did not consider the entire evidence on the point of legal necessity for execution of the said lease in favour of the Plaintiff. The evidence regarding legal necessity was particularly one-sided. The Defendant No. 1 did not adduce oral evidence to controvert the testimonies of the Plaintiff''s witnesses. The only witness examined on the Defendant''s side was more or less a formal one. The learned Subordinate Judge also did not apply his mind to the documentary evidence. The trial Court referred to Ex. 9(b), the notice under Rule 5(1), Schedule 17 of the Calcutta Municipal Act, 1951, by the Calcutta Corporation asking the owner of the premises No. 18/2, Ekbalpore Lane to show cause why the premises was in a dangerous condition. A case was filed in the Court of the Municipal Magistrate for non-compliance with the said notice (vide Exs. 12 and 12(a)). The trial Court also referred to the fact that the previous rent of the premises was Rs. 12 per month but held that there was substance in the contention that Rs. 3,000 was paid by the Plaintiff as the consolidated advance rent and therefore, according to the trial Court the same cannot be considered to be too low.

I have already held that the Defendant No. 1 cannot challenge the validity of the lease. Therefore, I need not finally decide the said question of legal necessity. For the foregoing reasons, I hold that this appeal should succeed.

I, accordingly, allow this appeal, set aside the judgment and decree of the lower appellate Court and restore those of the trial Court. In the circumstances of the case, both parties would bear their respective costs throughout.

Leave under Clause 15 of the Letters Patent is prayed for and refused.