Sri Darbar Saheb vs Bare Lal Kandarp Nath Sah Deo

Wort, J.—If it is remembered in this case that we are dealing with an appellate judgment, the difficulties Said to arise in my judgment disappear, as the only matters within the competence of this Court are questions of law. I do not propose to state in as great detail, as has been stated in the Court below the facts, but merely to give the relevant points in order to indicate the questions of law which arise in this appeal. It is the plaintiff''s appeal, the plaintiff''s action in ejectment having been dismissed by the learned Judicial Commissioner of Chota Nagpur. His case was based on a notice to quit at the end of the agricultural year. Apparently the plaintiff''s view of the lease, which was the subject-matter of this action was that it was a tenancy from year to year, and that has been emphasised by Mr. De, who appears on behalf of the appellant, in the course of his argument. The lease was granted sixty-one years before the commencement of the action. The subject-matter of the lease was a piece of land granted to the math many years ago by the ancestor of the defendant. The lease was dated 1924 Sambat, that is 1867, and was made to the predecessor in title of the defendant at Rs. 3 per annum.

The questions which arose in the action were, first, what was the nature of the lease, whether it was a permanent lease or lease from year to year; secondly, whether the lease was within the powers of the grantor; and thirdly (a question which has been raised for the first time in this Court) whether in any event, as Mr. De contends, the plaintiff was entitled to eject the defendant, the defendant having (so it is alleged) repudiated the title of the grantor. The last point is based on the contention that in some other proceedings and in this case in the written statement the defendant denied the original grant to the math and therefore repudiated the title of the grantor. The question as to the construction to be placed upon the lease raises two points. The first matter upon which the appellant relied was the fact that the lease was described as a thica bemiadi. "Bomiadi," I am informed, is an expression which means ''without Perm.'' It is contended therefore by Mr. De that this lease cannot be described as a permanent lease but merely as creating a tenancy at will. It will be seen from what I have already said that that argument runs counter to the statement in the plaint itself and the argument which has been addressed to us. It is impossible to apply the term ''bemiadi'' to a lease from year to year. A lease from year to year is a lease with a term. But apart from that, the appellant relied upon certain decisions of this Court, being the the decision in Mt. Parshan Kuer v. Mt. Tulsi Kuer 1917 Pat 46, a decision very strongly in favour of Mr. De''s contention having regard to the fact that the lease there was not only a lease of the surface but also of the mineral rights. The lease there was ''bemiadi,'' but the learned Judges deciding that case came to the conclusion that in spite of the grant of the mineral rights as well as the surface rights, the expression ''bemiadi'' led to the conclusion that it was not a permanent right as contended for by the tenant-defendant.

This case was distinguished in Kangali Charan v. Surja Narain Sah 1922 Pat 161. But Mr. De contends that it is the duty of the Court to choose between these two decisions. The duty of the Court in circumstance of this kind is to endeavour, if it is possible, to reconcile the two decisions which on a casual reading, might be held to be conflicting. Coutts and Macpherson, JJ. deciding the later case made this observation:

The learned vakil for the appellant on the authority of Mt. Parshan Kuer v. Mt. Tulsi Kuer 1917 Pat 46, contended that a permanent tenure cannot be created by a bemiadi patta. This contention however, is by no means supported by the judgment referred to. In that case what happened was that the defendant pleaded that as the patta was a bemiadi one, it created a permanent right, but the learned Judges held that a bemiadi patta or lease without a term, did not necessarily create such a right.

That view of the matter, viz. that the use of the expression does not necessarily conclude the matter, is supported by the decision of their Lordships of the Judicial Committee of the Privy Council in Janki Nath Roy v. Dinanath Kundu 1931 PC 207. There, Lord Russel of Killowen in delivering the opinion of the Judicial Committee, said that:

The question cannot be resolved by reference only to the use and meaning of the word ''bemiadi,'' but should be determined after consideration of all the provisions of the kabuliyat, by which the rights of the parties are defined.

As I have said, the view there expressed, in my judgment, quite clearly supports what the learned Judges, deciding Kangali Charan''s case 1922 Pat 161, considered to be the true view of the matter, namely that the question depends not so much upon the use of the term but the proper construction of the deed to which the term is applied, and therefore the use of the word does not necessarily conclude the matter. In this case there are provisions in the lease itself which are of material assistance in coming to the conclusion on the matter at issue. The lease provided:

The said Misair (or grantee) should remain in possession and occupation of the same and he and his heirs shall pay Rs. 3 to me and to my disciples and remain in possession and occupation of the land and tenants and make such settlement as deemed proper.

The statement, "The said Missir should remain in possession and occupation ... and he and his heirs" is not without significance, although it might be said, and indeed has been argued in this ease, that it merely indicates that the heirs after the death of the grantee are entitled to remain in possession; in other words, the grant is a heritable one but not necessarily a permanent one. But the view advocated by the defendant-respondent in this case is supported by "the other words coming immediately after the ones to which I have referred, the words being, "shall pay Rs. 3 to me and my disciples." They clearly signify, in my judgment, that the lease should subsist after the death of the grantor, and therefore in my opinion is a permanent lease. This is borne by the other clause which I have already read "and make such settlement as deemed proper" etc. The learned Judicial Commissioner has relied upon the provisions of the lease itself and also upon a number of other circumstances in coming to the conclusion that the lease was a permanent one. He finds first, that the evidence establishes the fact that the land has been built upon, although built upon by the sub-tenants. The land as I have indicated had been let out to sub-tenants and that fact, far from being in favour of the appellant, is very strongly against him (the plaintiff) and that for the reasons given by the learned Judicial Commissioner. He points out that the land being built upon by the sub-tenants, one of the plaintiff''s witnesses admits that Gopal Missir had authority to settle the land with tenants; and, in any event, in this case there was no evidence or suggestion in fact that the sub-letting was in any way objected to by the grantor. The learned Judicial Commissioner in this connexion states:

This ... would certainly indicate that the defendant''s lease was of a permanent nature for building purposes.

The further fact upon which the learned Judicial Commissioner relies is that the grantee that is to say (the lessee) and his successor were left in undisturbed possession of the land for about sixty years. Now it might be said that the learned Judicial Commissioner had no jurisdiction to consider questions of fact to assist him in coming to a decision as to what was the proper construction of the deed. The mere fact that there was ambiguity or difficulty, not being a latent ambiguity, would not entitle the Judge to consider these questions. But if, as might be argued in this case, there was no expression in the document itself which, properly construed, would entitle the Court to come to any conclusion with regard to the matter, then the questions of fact which the learned Judge in the Court below discussed were certainly open to him to consider in coming to a conclusion with regard to the matter. But the point in my judgment does not arise for the reason that, in the view I take, the lease purported to be a lease of a permanent character. This leads me to the question pleaded in Para. 5 of the plaint to the effect:

Besides a temporary lease, Manohar Dasji (the original grantor) was not competent enough to make such a settlement.

Now the point arises in these circumstances: Para. 5 of the plaint could not possibly be said to be insufficient to raise the question of necessity. In any event, so far as it was a matter to be proved, the onus was on the defendant to establish that the circumstances were such as to entitle the original grantor to grant a permanent lease; in other words, it was either for the benefit of the math or for legal necessity. The matter was not discussed in the trial Court but a reference was made to an authority, from which fact it has been argued that the question was raised. But there is certainly no decision on the question by the trial Judge, the trial Judge having given the plaintiff a decree in a modified form. In appeal the matter appears to have been argued before the learned Judicial Commissioner who dealt with it on the assumption that evidence was not called by either side on the question. But the learned Judicial Commissioner has stated certain facts, and relying upon a decision of the Privy Council has presumed that there was legal necessity. It is important to notice the words used by the Judicial Commissioner. Dealing with the point he says:

However he (the grantor) can do so for legal necessity. In the present case the number of years that has elapsed since the date of the lease, renders it impossible for the defendant to prove what were the circumstances which led to the lease being granted.

Then, quoting an authority, and having considered the circumstances of the present case, he goes on to say:

I am prepared to hold that Mahanth Manohar Das granted the lease for legal necessity and that the present successor of the original lessee is not liable to be ejected.

Reliance for this finding is placed on the decision in Magniram Sitaram v. Kasturbhai Manibhai 1922 PC 163. There, Lord Buckmaster, delivering, the opinion of their Lordships of the Judicial Committee of the Privy Council, relied upon an earlier decision reported in Chockalingham Pillai v. Mayandi Chettiar (1896) 19 Mad 485, and stated that the disability of a shebait of a Hindu deity to make a permanent grant of endowed property is not absolute, meaning thereby, as I understand the learned Law Lord, that if legal necessity is established the grant would be valid. In referring to Chockalingham Pillai v. Mayandi Chettiar (1896) 19 Mad 485, Lord Buckmaster makes this statement:

In that case it was pointed out that although the manager for the time being had no power to make a permanent alienation of temple property in the absence of proved necessity for the alienation, yet the long lapse of time between the alienation and the challenge of its validity is a circumstance which enables the Court to assume that the original grant was made in exercise of that extended power;

and then observes, as regards the facts of the case before him:

At a lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy, which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfully made.

Now the only distinguishing feature between that case and the case which we have before us is, as pointed out by Mr. De in the course of his argument, that there 100 years had elapsed, and it is quite obvious that no one who bad any connexion with the original transaction could be called to prove the circumstances under which it was carried out, whereas in this case the period between the lease and when the action was brought under the lease was only 61 years. And Mr. De contends that, had the question been raised as a question of fact in the sense that all the parties called evidence to establish their respective cases, or had the defendant pleaded the matter definitely in his written statement, he might have been in a position to have called evidence to show the circumstances under which the transaction was carried out. In my judgment there can be no doubt about this point. If the facts of the case were open to this Court, the conclusion at which it might have arrived might be different from that at which the learned Judge in the Court below has come; but we are, as I pointed out at the commencement of this judgment, concerned only with questions of law. The question of legal necessity is a question of fact; and the learned Judge in the Court below has disposed of it by applying a principle of law to the proved facts of the case. I have already referred to the matters relied upon by the learned Judicial Commissioner in coming to his conclusion on one part of the case, such as, the sub-leases, the building by the sublessees and no disturbance by the grantor; and it is on those circumstances and the other to which I have in detail referred, that the learned Judicial Commissioner says:

However, considering the circumstances of the present case, I am prepared to hold that the Mahanth Manohar Das granted the lease for legal necessity and that the present successor of the original lessee is not liable to be ejected.

Now, it is true that there is a distinguishing feature, namely, the difference between the period of years lapsing from the date of the lease to the date of the action in the Privy Council decision and this case; but the question we have to determine is not whether we should presume legal necessity in the case, but whether the learned Judicial Commissioner has misdirected himself in law in applying this principle to the particular facts of the present case. That, in ray judgment, is the only question open to this Court. It might be said that, as the defendant did not raise the case in his written statement, the matter was left open, but that is an argument which is not open to the appellant in this case because he has in the first instance depended upon his allegation in the plaint contained in para. 5 to the effect that the grant was beyond the competence of the grantor. The point has been raised and the only question which the learned Judge in the Court below was entitled to or could under any circumstances, decide was whether on the facts the defendant had established that there was legal necessity; in other words, whether the grant being a permanent one was within the competence of the grantor. It is impossible therefore to contend that this matter could be left open, first for the reason that the lease has been found to be permanent, and secondly by reason of the fact that the learned Judicial Commissioner has dealt with it and come to a conclusion thereon.

Now, was it open to the learned Judicial Commissioner to apply this principle? In this connexion the decision of their Lordships of the Privy Council in Mahammad Muzaffar-Al-Musavi v. Jabeda Khatun 1930 PC 103 is important. Mr. De contends, and rightly so, that in that case the Privy Council was considering whether in the absence of evidence of the grant itself a grant could be presumed, and it might be supposed that the principle applied in the case reported in Magniram Sitaram v. Kasturbhai Manibhai 1922 PC 163 had no reference to the particular matter which was before their Lordships of the Privy Council in 57 Indian Appeals. But, on an analysis of the judgment, it is obvious that that argument cannot be supported. In considering the question, Viscount Sumner makes this statement:

This question (that is to say, the principle which was sought to be applied in that particular case) was dealt with by their Lordships'' Board in Magniram Sitaram v. Kasturbhai Manibhai 1922 PC 163.

Then his Lordship proceeds to discuss that case and the authorities upon which that case depended and then makes this observation:

The question then is whether this decision applies in the present case, or whether any ground exists on which it can be properly distinguished.

And then, towards the end of the judgment, states:

In principle the cases are in themselves analogous.

In other words, their Lordships were applying the principle stated in Magniram Sitaram v. Kasturbhai Manibhai 1922 PC 163, that it was proper to assume that the grant was lawful and not unlawful. The importance of the decision of the Privy Council is this that

The presumption of a lawful origin in support of proprietary rights, long and quietly enjoyed, is not a branch of law of the evidence but a presumption arising in law in the absence of evidence.

The relevance of that authority to the facts of this case is this: that there being no fact established directly connected with the question of necessity and the defendant having adduced no evidence in support of his argument, that the grant was within the competence of the grantor whether the learned Judge in the circumstances might be entitled to assume that the grant was lawfully and not unlawfully made in the sense that it was a grant made for legal necessity. It is not to be forgotten that the case, in which the principle was laid down, was the case of a grant by a shebait, and the question was whether it was made for legal necessity. I might add on this point that the case in 49 Indian Appeals has been sought to be distinguished on the footing that there was a statement by Lord Buckmaster in the course of his judgment to this effect:

It certainly is not plain that the original lease in 1824 was made by anybody in the position of a shebait at all, because the note is given to the widow of the original grantee, and although it might have been fair to assume that the original grantee was intended to hold as a shebait, even if the widow could hold the office it was not in virtue of that capacity that she granted the lease.

But if this had been the fact, in other words, if the case had ended there and had been decided on the assumption that the grant was not made by a shebait the further discussion as to the presumption of legal necessity would be quite unnecessary; but, in the state of uncertainty as to whether the grant was made by the widow or shebait, the discussion became necessary, and the question was decided in the manner which I have stated in some detail. In my opinion the only matter that is open to us here is to say whether, as a matter of law, the learned Judicial Commissioner has misdirected himself in presuming that there was legal necessity; and, in my opinion, it cannot be said that there was any misdirection merely by reason of the fact that the difference between the two cases was a difference in lapse of years between the date of the grant and the time when action was brought. The only other question is the question of whether the plaintiff is now entitled in this action to rely upon the repudiation toy the defendant-tenant of the landlord''s title. We are asked to say that the facts are obvious; we are asked by Mr. De to look at two judgments in certain rent suits in which it is stated that the defendant-tenant had repudiated the title of the landlord. As to that point all that need to said is that this is a question of fact which was not raised in the case, the case in no way depended upon it and it would be beyond my jurisdiction to decide this question. Mr. De then falls back on the repudiation said to have been made in the written statement. To that there is one reply that is given in Maharaja of Jaipore v. Rukmini Pattamahadevi 1919 PC 1. The case there was a case in which the plaintiff sought possession based upon a repudiation of his title by the defendant. Lord Phillimore, in delivering the opinion of their Lordships of the Judicial Committee of the Privy Council, had said that the matter was governed by justice, equity and good conscience,

and the rules of English law as to forfeiture of tenancy may be held and have been held to be consonant with these principles and to be applicable to India;

and then went on to say:

The qualification that the denial must be in clear and unmistakable terms has not unfrequently been applied by the Courts in India.

Their Lordships then, having quoted authorities, make this statement:

Counsel for the respondent contended that she was entitled to the benefit of these rulings, and that in this case there was no such clear and unmistakable denial. Whether this be so or not, their Lordships do not find it necessary to decide for the following reasons: (1) There is here no denial by matter of record before the present suit was instituted. Denial in the suit will not work a forfeiture of which advantage can be taken in that suit because forfeiture must be accrued before the suit was instituted.

That in my judgment is a complete answer to the point. For reasons which I have somewhat elaborately stated, I am of opinion that the appeal fails and it must be dismissed with costs.

Rowland, J.

The suit out of which this second appeal arises was a suit in ejectment brought by Sri Darbar Saheb, through Mahunt Gyan Prakash Das, praying to eject a tenant from the property held by him on a lease granted by a predecessor of the present Mahunt on an annual rent of Rs. 3. In the plaint it was alleged that this lease was a lease from year to year terminable on giving notice to quit, and terminated by giving such notice. Several defences were taken. The contesting defendant, who happens to be the superior landlord, denied that the property had ever been granted to the Darbar Saheb or to the predecessor of the present Mahunt, and by him sub-let to the predecessor of the present defendant; that is to say, the title of the plaintiff and the relation of landlord and tenant was flatly repudiated. Alternatively the defendant contended that assuming that the property had been let by Mahunt Manohar Das to Pandit Gopal Misra as alleged, the plaintiff had no right to cancel the lease or determine it, the lease being permanent.

The Courts below concurred in affirming the plaintiff''s title to the property and the existence of the lease and the fact that the defendant was holding under it. The Subordinate Judge examined the lease and held that it was never intended to create a permanent tenancy, and that the plaintiff was entitled to resume the property. He gave the plaintiff a decree. On appeal the Judicial Commissioner reversed the finding as to the nature of the lease, holding that it was a permanent lease. That finding, if correct, was sufficient for the disposal of the suit. But two other matters have been argued before us. One is the question of legal necessity for the creation of the lease and the question whether such a lease created by Mahanth Manohar Das is binding on his successors, and the other is whether the plaintiff is entitled to re-enter by forfeiture of the holding in consequence of denial of his title by his tenant, the defendant. I shall discuss first the construction of the lease. It is expressed to be a bemiadi thica patta. This is an expression frequently used in documents of lease in this Province, which has been more than once for consideration in this Court. It was held in Mt. Parshan Kuer v. Mt. Tulsi Kuer 1917 Pat 46 that the words "bemiadi patta" did not connote any permanence of tenure, and in that case the Court found nothing in the patta to lead to the conclusion that the lease was permanent. The same view was taken in Kailaspati Choudhury v. Muneshwar Choudhury 1918 Pat 468, and these decisions might suggest that a bemiadi patta would not in any case be regarded as creating a permanent lease. But in Kangali Charan v. Surja Narain Sah 1922 Pat 161, it was held that where the terms of the lease and the circumstances point to the conclusion that a lease created by a bemiadi patta was intended to be permanent, the use of the expression "bemiadi patta" would not be taken to negative the permanence of the tenure. The above decisions and several cases of the Calcutta High Court were reviewed in Forbes v. Hanuman Bhagat 1924 Pat 88 where the question whether a bemaidi patta created a permanent lease or not was examined with reference both to the terms of the document itself and the circumstances and purpose for which it was granted.

The construction of a grant such as this should be determined after considering the whole of the terms of the grant and any light that may be thrown on the matter by the circumstances in which it was granted. This method, it seems to me, agrees with that which was adopted by their Lordships of the Privy Council in Janki Nath Roy v. Dinanath Kundu 1931 PC 207. Turning now to the document itself, we find besides the use of the expression "bemiadi thica patta," that the lease is granted to the lessee and his heirs; that they are to pay rent of Rs. 3 to the lessor and to his disciples; and that the rent payable is Rs. 3 per annum which is referred to as "a fixed rent more than which I shall not demand." The lease permits the lessee not only to enjoy the property himself in any manner he thinks proper by holding it in direct possession, by planting orchards, cultivating it, building houses but also to let to tenants as he thinks fit. There is no such reservation regarding the use to which the land is to be put as is so often found in leases where the eventual re-entry of the landlord is contemplated. I may mention in passing that there is no trace in the document of the lessee, who, by the way, was a Brahmin, paid any premium or nazarana whatever; that the lessor at the time of the grant was receiving Rs. 3 per annum as the rent of a portion of the demised property from one Sheikh Alam Ali to whom that portion had been let until a period expiring three years after the date of the lease that we are construing. The lessee under this present grant was to get for a fixed rent of Rs. 3 a larger property than had been previously let to Sheikh Alam for a term on a rent of Rs. 3.

Before I express my view on the construction of the terms of the grant itself, I should first refer to the argument which Mr. De for the appellant has raised on the point of necessity. It was open to the appellant to argue that if there was no necessity to grant more than a temporary lease, and if there was no benefit to the Darbar Saheb by the grant of a permanent lease, it should not be presumed that the intention of the parties was that the lease should be permanent, on the principle that a transaction will never be presumed to be illegal if it could be referred to a lawful origin. The absence of any premium and the low rent taken are circumstances against the supposition that there was necessity. We have not been referred to any circumstance from which necessity could: be inferred, except lapse of time. With great respect to what has been said by my learned brother, I feel difficulty in regarding the finding of the Judicial Commissioner that there was necessity either as a finding of fact founded on evidence or as a presumption warranted in law.

But it is not necessary that I should further discuss this matter regarding which no issue was framed because in the view I take, it makes no difference to the result of the appeal. Even if there was no necessity whatever for the transaction and allowing to this fact of absence of necessity such weight as can be given to it along with other circumstances as an aid in determining what the patta meant, still I think that there is no doubt that the meaning of the patta was to create a permanent tenancy and not a tenancy terminable at the will of the landlord by a notice to quit. I speak with reference to the terms generally, but I regard the fact that the lessee had to wait three years to get possession of a part of the property as particularly significant. The plaintiff therefore fails on the cause of action set up in his plaint, it being sufficient for the purpose of the disposal of this matter to say that the plaintiff can get no such benefit from the absence of necessity as to displace the conclusions arrived at on a reading of the terms of the patta. But the case has been argued by Mr. De before us as if the plaintiff hoped to succeed on the footing that the interest created by Mahanth Manohar Das, even if expressed to be a permanent tenancy, would create no title in the tenant beyond the life of the grantor, and that his successor could eject the lessee on the principle of Vidya Varuthi v. Balusami Ayyar 1922 PC 123. But there are two insuperable obstacles in his way: Firstly, the plaint was not so framed and the cause of action for such a suit would be a different cause of action from that on which the plaintiff has sought relief in the present litigation. Secondly, if the suit had been so framed as to claim relief on this ground and on such a cause of action limitation must have been held to run against the present Mahanth at latest from the date of the death of his predecessor in 1908, so that the suit would have been dismissed as time-barred. It would, therefore, have been hopeless for the plaintiff to frame his suit in that manner and it was equally desperate for Mr. De to attempt to argue the appeal on those lines. The result of the appeal is not therefore affected by the fact that on the question whether there was necessity for the transaction or not, I am unable to associate myself with all that my learned brother has said.

The last point taken by Mr. De was that the plaintiff was entitled to re-enter on the land on the principle of forfeiture because of the repudiation of his title by the defendant. Here I am in no doubt that Mr. De''s contention must fail. It is not enough that the defendant in the clearest and most emphatic terms repudiated the title of the plaintiff in his written statement. The Privy Council decision in Maharaja of Jaipore v. Bukmini Pattamahadevi 1919 PC 1 has made it quite clear that the denial which is relied on as the basis of forfeiture must have taken place before the institution of the suit. Failing this Mr. De has pointed out that there was in fact a repudiation of the tenancy before the institution of the suit; that is to say, on two previous occasions the plaintiff brought rent suits against this defendant who contested them by written statements denying the title of the plaintiff. The answer to this is that nothing was said of this denial in the plaint of this suit, and we cannot allow the plaintiff to raise this case, as now suggested, altering the nature of the suit and founding it on a new cause of action not taken in the pleadings. The rest is that I agree that the appeal should be dismissed with costs.