Sri Sri Satyanarayanjee vs S.C. Chunder

Hazra, J.—Raja Shew Bux Bagla was a pious and charitable Hindu merchant and landholder of Calcutta (hereinafter referred to as the Raja). The Raja established the images of Sri Sri Satyanarayanjee (with Lachmijee) at premises No. 51 Cotton Street, Calcutta, in the year 1884. The Raja also established another deity of the same name at his house situated at Bisseswar Nath Fatak, Banaras, in the year 1885. The Raja also established images of four other deities, namely, the image of Mahadeb, the image of Sri Sri Parvati, the image of Sri Sri Soorjanarain and the image of Sri Sri Ganeshjee as auxiliary to the said idol Sri Sri Satyanarayanjee at the said places, namely, at 51 Cotton Street, Calcutta and at Bisseswar Nath Fatak, Banaras. The Raja was the shebait of the deities.

By a deed dated January 11, 1888 (hereinafter called the deed of 1888), the Raja and one Ganpat Roy Bagla conveyed the said two properties to the Raja as shebait of the deities to have and to hold the said properties upon trust with the object and to perpetuate and support the worship of the idols and to maintain and keep up the chattur attached to and connected with the worship of the idols at Banaras. The deed, inter alia, provides that the Raja will hold the properties upon trust and keep locate and put up the idols in a portion of the premises No. 51 Cotton Street, Calcutta and "let out or demise such other portions, rooms or set of rooms" of the premises No. 51 Cotton Street "as to the discretion of the said shebait or shebaits can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as the said shebait or shebaits shall think fit...."

On August 1, 1901, the Raja made a deed of declaration in writing (I shall call it the deed of 1901). In the deed of 1901 the Raja stated that he established the deities and the said chattur, but as the income of the temple house at 51 Cotton Street was falling short of the sum total of the expenses of the said sheba and the chattur by a monthly sum of Rs. 348-7-0 the Raja covenanted and agreed to pay the said monthly sum and further agreed that the said sum should be a primary charge on all the properties and sources of income of the Raja and his heirs and assigns. In the deed of 1901 the Raja also stated that the payment of the monthly sum should decrease in proportion to the income secured to the deities by the Raja or any of his descendants by dedication or consecration of additional properties or effects yielding monthly or periodical profits. In the deed of 1901 it is further stated by the Raja that in order to decrease and reduce the payment of the said monthly sum of Rs. 348-7-0 the Raja by an indenture dated August 31, 1889, purchased certain properties. It is also stated that in the year 1890 the Raja also established a dharmasala at Howrah as resting place for the Hindus. It is stated in this deed that the Raja purchased two other properties in the years 1897 and 1898 respectively. It is further stated in this deed that by an indenture dated September 12, 1899, the Raja acquired for the deities with the moneys belonging to the deities and in the hands of the Raja as such trustee and shebait yielding a monthly rent of Rs. 400 or thereabout described in the schedule to this deed of 1901 and is desirous of declaring that the said property was so purchased in trust for the deities. It is also stated in the deed of declaration that as the

income of all the said debutter properties is now Rupees eleven hundred or thereabout a month being considerably more than what was the income of the dedicated properties at the time of the execution of the said indenture of the 11th day of January 1888 including the said sum of Rupees three hundred and fortyeight and seven annas,

the Raja was

desirous of varying and modifying the expenses as mentioned in the said indenture of January 11, 1888 and making provisions for the balance of the said income after defraying the expenses and also paying all rents taxes cesses and other charges in respect of the properties and the cost of repairing the temple-house at Calcutta and Banaras and the dharamsala aforesaid.

It is declared that for effecting the said desire and for perpetuating the worship of the deities and maintenance of the chattur the said lands and hereditaments shall form part of the debutter properties dedicated to the deities and shall be possessed by the Raja as shebait and trustee and his successor-in-office as shebait and trustee upon such trust intents and purposes as are recited in the deed of 1888. It is also stated:

all the covenants conditions and provision contained and embodied in the said indenture of 11th January 1888, shall apply mutatis mutandis to these presents as if the same were herein contained and embodied.

In this deed it is also stated that

it being the intention object and meaning of the said Raja Shew Bux Bagla that the hereditaments and premises hereby and by the said indenture endowed dedicated or consecrated shall be and remain for ever as debutter property according to the true sense of the Hindoo Law and shall be treated behaved and used as such anything herein contained interpreted and construed by the light of the English Law or any other law to the contrary.

The schedule to the deed of 1901 contains description of the properties, namely, lot No. 1 which is about 4 bighas of land at Salkia bounded on the east by the river Ganges and lot No. 2 which is about 8 bighas and 4 cottahs of land at Salkia bounded on the east by the river Ganges.

On July 4, 1907, the Raja appointed his son Kumar Gangadhar Bagla and his fourth wife Rani Mohori Bibi as the shebaits and trustees in his place after his death for the sheba and worship of the deities, maintenance of chattur attached to the temple at Banaras and dharamsala at Howrah to which the Hindus or the Vaishnabas are entitled to have access as of right. This is hereinafter referred to as the deed of appointment of 1907.

On June 30, 1908, the Raja as trustee of the deity Sri Sri Satyanarayanjee located at 51 Cotton Street, Calcutta, executed a lease (hereinafter called the lease of 1908) of 5 bighas 4 cottahs 9 chattaks of land in the riverside at Salkia at a rent of Rs. 293 per month for a period of 80 years commencing from June 1, 1908, in favour of one Kissenlal Burman. The lease also contained an option for the lessee to continue the lease for another 10 years. The rate of rent for the optional period of the lease would be Rs. 300 per month. The lease of 1908 was in respect of a portion of the land mentioned and described in the schedule to the deed of 1901.

The Raja died on October 5, 1908. Rani Mohori Bibi died on June 5, 1910 and thereafter, Kumar Gangadhar Bagla (shortly called the Kumar) became the sole shebail and trustee under the deed of appointment of 1907.

After the death of the Raja, the Kumar continued the lease of 1908. A firm S.C. Chunder became the lessee in place of Kissenlal Burman and the firm S.C. Chunder was accepted as such lessee under the lease of 1908 by the Kumar.

On May 24, 1935, the Kumar, as the then sole shebail and trustee of the deity Sri Sri Satyanarayanjee, executed another lease for 53 years in favour of the firm S.C. Chunder from June 1, 1935, till the end of May 31, 1988, at a rent of Rs. 13 per month. The area of land leased out was 5 bighas 4 cottahs adjoining on the eastern side of the land under the lease of 1908. The lessee S.C. Chunder had the option for renewal for 10 years at Rs. 15 per month on terms and conditions similar to the lease dated 1908. The expiry dates of the lease of 1908 and the lease of 1935 are same.

On June 22, 1960, the firm S.C. Chunder and Company addressed a letter to Sri Sri Satyanarayanjee estate stating that the name of S.C. Chunder was changed to S.C. Chunder and Company since 1941 and asking that in the records of the landlord the name of S.C. Chunder and Company should be put in as lessee in possession and the bills should be made in future accordingly. The said letter states:

as a matter of fact we are paying rent to you for the last 19 years but due to oversight we did not notice that the bills were issued in the old name of S.C. Chunder.

On August 1, 1960, the Kumar in reply to the letter of S.C. Chunder and Company asked for inspection of the documents by which the alleged change was effected in 1941. On August 30, 1960, S.C. Chunder and Company replied stating that they had no documents for inspection but requested the landlord to search the records of the firm. There after, several correspondence passed between the parties. The name of S.C. Chunder and Company was not recorded as lessee by the Kumar.

On September 20, 1964, the Kumar died and on his death Sri Satyanarayan Bagla, a Solicitor of this Court, as the son and successor of the Kumar became the sole shebait and trustee of the endowment. Thereafter, between October 5, 1964 and October 14, 1966, several correspondence passed by and between the parties. On November 22, 1966, Mr. H.L. Bhowsingka, a Solicitor of this Court and son-in-law of Sri Satyanarayan Bagla, gave two notices for ejectment to S.C. Chunder and Company for avoiding the lease of 1908 on the death of the Kumar and/or terminating the same on expiry of May 1967.

This lease of 1908 is the subject-matter of the present suit before me. The plaint was filed on June 17, 1967, in the Court of the Second Subordinate Judge, Howrah, being T.S. No. 51 of 1967.

The suit in the Howrah Court was instituted against two Defendants, viz. S.C. Chunder, a firm as the Defendant No. 1 and S.C. Chunder and Company, also a firm as the Defendant No. 2. Thereafter, the suit was transferred to this Court under Clause 13 of the Letters Patent and Mathura Nath Banerjee, an Advocate of this Court, as Receiver appointed in Suit No. 1196 of 1969, was added as a third Defendant.

The plaint was amended under order of this Court dated November 26, 1973.

At the hearing of the suit before me, Mr. S.K. Gupta assisted by Mr. N.K. Das opened the case for the Plaintiffs.

There are eleven Plaintiffs in this suit. The Plaintiffs Nos. 1 to 5 are Sri Sri Satyanarayanjee and four other deities located at 51 Cotton Street, Calcutta. The Plaintiffs Nos. 6 to 10 are five deities of the same name located at Banaras. The Plaintiff No. 11 is Satyanarayan Bagla, the sole shebait and trustee of the deities. The main reliefs claimed in the plaint are, inter alia, for a declaration that the lease of 1908 and/or tenancy in respect of the land referred to in the lease came to an end on the death of Kumar on September 20, 1964 and the decree for possession of Salkia properties which are the subject of the lease and mesne profits and damages at the rate of Rs. 70 per day from September 20, 1964, until possession is given. After amendment of the plaint an alternative prayer was added claiming a decree at the rate of Rs. 293 per month from March 1965 until the date of the decree in the event this Court holds contrary to the Plaintiffs'' contentions.

The case of the Plaintiffs as laid in the plaint is as follows:

The Raja consecrated and installed the deities in or about 1884. By the deed of 1888, 51 Cotton Street property and the house at Banaras were conveyed unto the Raja as shebait of the Plaintiffs'' deities. By the deed of 1901, the Raja dedicated to the Plaintiffs deities, the Salkia properties and declared the same to be absolute debutter properties of the Plaintiff deities. On June 30, 1908, the Raja acting as trustee granted a lease of 5 bighas 4 cottahs 9 chattaks 1 kara or land (Salkia property) to Kissenlal Burman for a term of 80 years at Rs. 293 per month with further term of 10 years. The rent at which the tenancy was created by the lease of 1908 in favour of Kissenlal Burman was fixed and unalterable for 80 years and as such, the endowment was deprived of the benefit of augmentation of a variable rent from time to time and there was no special circumstances or legal necessity for creating the said alleged tenancy and same is voidable at law. Under the Hindu Law by which the Raja and his family were governed and by virtue of which the Plaintiffs deities were caused to be consecrated, installed and located and the said properties endowed to the said Plaintiffs deities, the said tenancy did not enure beyond the life-time of the Raja who died on or about October 5, 1908, as aforesaid.

The Plaintiffs Nos. 1 to 10 were at all material times and still are joint owners of the Salkia properties. Plaintiffs Nos. 2 to 10 were not parties to the said indenture dated June 30, 1908. On June 5, 1908, Kumar Gangadhar Bagla became the sole shebait of the Plaintiffs-deities. Kumar issued rent bills in respect of the Salkia properties and acted in terms of the lease of 1908. Kumar issued rent bills to S.C. Chundur upto August 1964. Kumar died on September 20, 1964 and his son Satyanarayan Bagla became the sole shebait and trustee.

The said lease dated June 30, 1908, executed by the Raja and the tenancy accepted by the said Kumar Gangadhar Bagla is not binding on the Plaintiffs-deities.

The said lease dated June 30, 1908, and/or tenancy was not for any legal necessity, nor made under any special circumstances and was not and is not binding on the Plaintiffs-deities after the demise of the said Kumar Gangadhar Bagla and in any avent, the said lease and/or tenancy came to an end on the demise of the said Kumar Gangadhar Bagla which happened on September 20, 1964.

S.C. Chunder and Company, the Defendant No. 2, claim to be in occupation of the said plot of land on behalf of S.C. Chunder, the Defendant No. 1. The said Defendant No. 2 has failed and neglected to satisfy the Plaintiffs as to how they acquired title to the said plot of land.

On discovery of the above facts, the Plaintiffs did not accept any payment from the Defendants or any of them in respect of the said land.

The said Defendants Nos. 1 and 2 are denying and/or interested in denying that the said lease dated June 30, 1908, is not binding on the Plaintiffs-deities.

By a letter of their Solicitor dated November 22, 1966, the Plaintiffs intimated to the Defendants that the alleged tenancy ceased to be effective upon the death of the said Kumar Gangadhar Bagla and expressed their intention to avoid and avoided the said tenancy and/or terminated the same on the expiry of May 1967 and called upon the Defendants to quit and vacate the said plot of land and make over peaceful, quiet and vacant possession thereof to the Plaintiffs-deities through their said shebait Satyanarayan Bagla on the expiry of May 1967 and that in default thereof a suit for possession would be instituted against the Defendants. The Defendants failed and neglected to make over such possession in spite of demand and continued to be in wrongful possession of the said plot of land and claimed to be tenants even after the expiry of May 1967. A copy of the said notice has been annexed as part of the plaint.

Several paragraphs were added to the plaint by amendment stating the reasons for adding Mr. Mathura Nath Banerjee the Receiver appointed in Suit No. 1196 of 1969 Madhusudan Chunder v. Jugal Kishore Chunder and Ors. as party Defendant No. 3 as follows:

On September 5, 1969, an order was made by the Hon''ble High Court at Calcutta in Suit No. 1196 of 1960 Madhusudan Chunder v. Jugal Kishore Chunder and Ors. appointing Mr. Mathura Nath Banerjee, Barrister-at-Law, to be Receiver without security but at the remuneration of Rs. 500 per month with power to carry on business of the parties in that suit under advice from their Board of Management. It was alleged on February 1, 1973, before this Court on behalf of the Defendants that the said Sri Mathura Nath Banerjee, the Defendant No. 3, as Receiver in Suit No. 1196 of 1969 of the Hon''ble High Court at Calcutta, had taken possession of all the assets of the Defendants Nos. 1 and 2 including the property in suit and that he was a necessary party.

An alternative case was made in the plaint as follows:

Should this learned Court be pleased to hold contrary to the Plaintiffs'' contention that the Plaintiffs are not entitled to declaration, cancellation, of lease and/or tenancy, and/or delivery of possession, as prayed for, for any reason whatsoever, in that event, the Plaintiffs without prejudice to any of its contentions and without waiving any of its rights and in the alternative will claim and claim a decree in this suit at Rs. 293 per month from March 1965 until the passing of the decree herein being the amount payable monthly, liability in respect whereof the Defendants, from time to time, admitted and/or acknowledged in several writings signed by or on behalf of the Defendants.

On behalf of the Defendant No. 3, the Receiver, Mr. J.N. Roy with Miss C. Joshi placed the written statement of the Receiver Defendant No. 3. Nobody appeared on behalf of the Defendants Nos. 1 and 2 and the written statement of the Defendants Nos. 1 and 2 were not placed at the opening of the case. I will shortly indicate the case made by the Defendant Receiver. In the written statement the Defendant Receiver states, inter alia, as follows : Save what appears from the records, he did not make any admission as to the statements made in the endowment. He denies that the endowment was deprived of the benefit of augmentation of a variable rent from time to time or that there was no special circumstance or legal necessity for creating the tenancy or that the same was voidable at law on account of fixed and unalterable rate of rent as alleged or at all. He states that the leasehold right subsists and the Plaintiffs are not entitled to avoid the lease and/or to determine the legal right of the Defendants to possess the suit property. It is not admitted that Kumar Gangadhar Bagla did not act on behalf of the Plaintiffs deities Nos. 2 to 10 while accepting the said Kissenlal Burman and the Defendant No. 1 S.C. Chunder as tenants of the said debutter property, but only on behalf of the Plaintiff deity No. 1 Sri Sri Satyanaravanjee. The Defendant S.C. Chunder and Company, which formerly carried on business in the name and stvle of S.C. Chunder, is in existence since 1940 and the rents are paid by the said firm but the rent receipts are granted in the old name S.C Chunder and as such, the occupation of S.C. Chunder and Company as of right is to the knowledge of the Plaintiffs deities in terms of the lease. It is disputed that the lease or tenancy came to an end before the death of Kumar Gangadhar Bagla on September 20, 1964, as alleged. He stated that the Plaintiffs having accepted rent are estopped from denying the relationship. Rents were received even after September 20, 1964 and as such, the claim of damage cannot be sustained. The following issues were settled:

Are the Plaintiffs entitled to avoid the lease dated June 30, 1908, after the death of Kumar Gangadhar Bagla on September 20, 1964?

Did the Plaintiffs lawfully avoid the lease by letter dated November 22, 1966?

Are the Plaintiffs estopped from denying the relationship of the Defendants by reason of acceptance of rent?

Are the Plaintiffs entitled to damages or mesne profits? If so, at what rate end from which period?

To what relief, if any, are the Plaintiffs entitled?

The suit was adjourned from time to time as Mr. J.N. Roy for the Receiver Defendant submitted that the Receiver did not know all facts relating to the case and in particular mere were certain facts and events relating to the lease which happened before the appointment of the Receiver which were absolutely necessary. Mr. Roy further submitted that if the Defendants Nos. 1 and 2 did not appear he would issue a subpoena on the partners of the firm to give evidence. Thereafter, there were several adjournments. Ultimately, Madhusudan Chunder, a partner of the firm S.C. Chunder and Company, appeared in Court and asked for time to engage an Attorney and other lawyers; but as the matter was adjourned on several occasions no further time was granted to him. Thereafter, Mr. Ganapati Chunder, Advocate, was engaged to assist Mr. J.N. Roy as his junior on behalf of Defendants Nos. 1 and 2. Sri Madhusudan Chunder, a partner of S.C. Chunder and Company, was called as a witness on behalf of the Defendants. Mr. Satyanarayan Bagla has given evidence on behalf of the Plaintiffs. Large number of documents have been tendered on behalf of the parties.

I will note that elaborate arguments were made by the Learned Counsel appearing on behalf of the parties. Mr. J.N. Roy and Miss Joshi made submissions on several points on law and facts and cited a number of cases and placed several passages from U.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed.). Mr. S.K. Gupta for the Plaintiffs also made submissions on several points and cited several decisions. However, I will deal with that part of arguments and submissions and those cases which I think are necessary for deciding the issues before me. I will first deal with Issue No. 1.

Issue No. 1 is most important for deciding the question whether the Plaintiffs are entitled to possession of Salkia properties after the death of the Kumar. The question would arise as to whether the Raja had the right and power to grant the lease of 1908 for the period for which it was granted. Mr. J.N. Roy has submitted that for deciding this issue the nature, terms, conditions and covenants of the lease as also the rights powers and duties of the lessor have to be considered.

Mr. Roy has contended that a pious Hindu can provide for sheba-puja and other benefits of a Hindu idol or deity in any one of the several ways as hereunder:

(1) He can direct that the income of his property or a pari of it shall be used for sheba-puja and for other purposes of a named deity. He may omit to deal with the corpus or can expressly give it to his heirs or legatees. In such a case, the property remains secular and is charged with the expenses for sheba-puja etc. This is not the case with the Endowment or Estate in the instant case. (Supra) Another way to ensure the regular sheba-puja of a Hindu idol or deity is to transfer and convey the corpus of and title to property to a trustee, directing him to hold the property upon trust for sheba-puja, etc. This is a trust in its technical or English sense. (Supra) The third alternative available to a pious Hindu desirous of perpetuating sheba-puja of a deity or idol is to dedicate property to the deity or idol itself so as to transfer and vest full title and ownership to and in the deity or idol. This is an out and out debutter in the true Hindu sense.

The endowment or estate in the instant case may also be of this third type, viz. a debutter estate in the true Hindu sense. This type of endowment is also sometimes referred to as a trust in the general or ordinary sense.

Referring to the above three modes of creating a debulter, Mr. Roy has submitted on Issue No. 1, in the first instance, on the basis that the estate in the instant case is a trust estate in the English or technical sense. Secondly, in the alternative, he has made his submissions on Issue No. 1 on the basis that the estate is an out and out debutler in the true Hindu sense.

With regard to his submission on Issue No. 1 on the basis that the estate is a trust estate in the English or technical sense, Mr. Roy has contended as follows:

The properties were vested in the Raja as trustee. Under the deed of 1888 the deities are not the owners of the properties. By the deed of 1888, the Raja is expressly authorised and required to let out or demise such portions of rooms as to his discretion can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as he shall think fit. Four other properties were settled and/or endowed by way of additional grant and accretion to the existing estate. The deed of declaration of 1908 expressly records that some lands including the balkia properties had been purchased in trust for the deities. In the deed of declaration it is clearly stated that the Raja as shebait and trustee and his successor shall stand possessed of the Salkia lands upon such trusts, intents and purposes as are contained in the deed of 1888. It is also provided in the deed of 1901 that all the covenants provisions and conditions contained in the deed of 1888 shall apply mutatis mutandis to the additional endowment made by the subsequent deed of declaration. Thus the power to grant lease for any term or period as contained in the deed of 1888 also became applicable to the additional endowment made by the deed of 1901. In the deed of 1901 it is stated that the properties shall be debutter properties according to the true sense of the Hindu Law and that any construction to the contrary in the light of English Law shall not be applicable. But he submitted that this clause is ineffective, as under the Hindu Law a true and complete debutter is created only when the means adopted is such that the property including title thereto is vested in the deity or idol. Unless the dedicated property vests in the Hindu idol or deity as a juristic person, a debutter in the true sense of the Hindu Law cannot come into existence. But in the instant case, all the properties were actually transferred, conveyed and assured unto and in favour of a human being as trustee by registered deeds. Title has been expressly vested in such trustee. Therefore, the entire estate is a trust estate in the technical or English sense. Mr. Roy contended that in view of express power to let or demise for any term or period, the restriction against any permanent leases of debutter property under the Hindu Law cannot apply to the lease of 1908. The Raja had power as trustee to grant lease with only one restriction, namely, he could grant the lease for any term or period, i.e. for a fixed term or period. The lease of 1908 was for 80 years and was and is, therefore, well within his power as a trustee. In granting the lease the trustee had acted in terms of express power conferred on him by the deed of endowment or trust. It is, therefore, perfectly valid and binding on the estate. The Plaintiffs are, therefore, not entitled to avoid the lease dated June 30, 1908, after the death of Kumar or at any time.

In answer to this branch of the argument of Mr. Roy, Mr. Gupta for the Plaintiff has contended that the Raja received his properties for the service of idols whose shebait he was and the income of the properties had been appropriated for that service. So it did not matter whether the trust had been created in favour of the idols or the properties had been directly dedicated to the idols. In either event, the properties would be debutter properties. The Salkia property is a debutter property in the true Hindu sense. The Salkia property was purchased by the Raja for the deities with the money belonging to the deities. So, no question of trust arises in respect of the Salkia property. The power to grant lease of a debutter property by a shebait of a Hindu deity as laid down in Hindu Law will apply and not what is laid down in the deed of 1888. In any event, the power to let out or demise is limited only to portions of 51 Cotton Street, Calcutta, under the deed of 1888 and not Banaras property. Further, the deed of 1888 contains a prohibition against "sale, conveyance, charge or encumbrance of any property or any portion thereof." The word ''convey'' in the deed of 1888 includes the word ''lease''. The mutatis mutandis clause in the deed of 1901 did not empower the trustees to let out or demise any property other than the surplus portion of 51 Cotton Street, Calcutta. The provisions of the deed of 1888 relating to the power of the shebait to grant lease for any term or period and prohibition with regard to sale, charge or encumbrance should be taken out physically and inserted in the deed of 1901. The only result would be that the shebait or trustee shall have the power to let out the surplus portion of 51 Cotton Street, Calcutta and nothing more. Since the deed of 1888 comprises two properties, namely the Cotton Street property and the Banaras property with different powers applicable to them; the mutatis mutandis clause cannot possibly be applied to any other property. There should be a harmonious construction of the two deeds, namely the deed of 1888 and the deed of 1901.

I will now deal with this part of the argument of the Learned Counsel for the parties and also refer to the submissions of Mr. Roy in reply.

The Raja was the shebait of the deities which he established sometimes before the deed of 1888. By the deed of 1888, two properties, namely 51 Cotton Street, Calcutta and Banaras property were conveyed by the Raja and another person, namely Ganpat Roy Bagla to the Raja as sole trustee of the properties for the purposes mentioned in the deed. The Raja, who was already a shebait of the deities, became a trustee and the two properties were vested in him with a view to perpetuate and support the worship of the idols and to maintain and keep up the chattur attached and connected with the worship of the idols at Banaras. Chattur means the place where food is given to persons free of charges. Thus, by the deed of 1888 a trust was created in respect of two properties, namely 51 Cotton Street property at Calcutta (hereinafter referred to as Calcutta property) and the Banaras property for the purposes of the maintenance of the deities and also to keep up the idols at Banaras. It was mentioned that the deities were kept located and put up in a portion of the premises No. 51 Cotton Street, Calcutta. With regard to other portion the deed gave express power

to let out or demise such other portions, rooms or set of rooms of the same houses and premises, namely the house and premises No. 51 Cotton Street, hereby conveyed and consecrated or any parts hereof as to the discretion of the shebait or shebaits can be conveniently let out and demised for any term or period upon and subject to such rents covenants and conditions as the shebait or shebaits shall think fit.

The Raja who was the shebait of the deities and became a trustee in respect of the properties for the objects mentioned in the deed of 1888 had the power to let out the surplus portion of 51 Cotton Street, Calcutta, for any term or period. The object for which the property was conveyed to the Raja as trustee was not only religious but also charitable. So far as the worship, support and maintenance of the idols are concerned the same are religious purposes. So far as keeping up the chattur attached to and connected with the worship of the idols at Banaras, the same is not only religious but also charitable. The creation of the trust by the Raja and the vesting of the property in the trustee are significant. The shebait and ''trustee'' are not identical terms. A Hindu may "convey in trust" a specific property to a particular individual for a specific and definite purpose and place himself expressly under the English law, when the person to whom the legal ownership is transferred would become a trustee in the specific sense of the term : Vidya Varuthi Thirtha v. Balusami Ayyar L.R. 48 IndAp 302 (319). The legal position of a shebait is quite different from that of a trustee to whom specific property is conveyed for a specific purpose.

It appears from the recital in the deed of 1901 that four other purchases had been made by the Raja by way of additional grants and accretions to the existing estate. It is recited in that deed that a dharmasala had been established as resting place for Hindus as additional performance of the said sheba. The deed of 1901 expressly states that the Salkia property which is the subject-matter of this suit had been purchased in trust for the deities. It also appears from the deed of 1901 that the Salkia property was purchased by an indenture dated September 12, 1899, made between Hurdut Roy Chamaria, son of Nandiram Chamaria and Fool Chand Saraogi, son of Manikram Saraogi, of the one part and the Raja Shew Bux Bagla acquired for the said deities "with moneys belonging to the said deities and in the hands of the said Raja Shew Bux Bagla as such trustee and shebait." In my view the said expressions indicate that the deities had the beneficial interest in the trust moneys and the properties were purchased with the accumulated trust moneys. Thus, the Salkia property was an accretion to the properties held by the trustee. It was also a trust property for the benefit of the deities for the purposes mentioned in the deed of 1888 and deed of 1901. Although the primary object of the trust was for the purpose of the deities or, in other words, the estate created by the deed of trust was the debutter estate, but the other object of the trust was charitable. For this reason the Raja very properly created the endowment by means of a deed of trust and vested the property upon himself as trustee. A Hindu who wants to establish a religious and charitable endowment has to express his purpose to endow it. For a religious endowment, property would be given to the deities or the entirety of the income would be given to the deities. If the purpose is both religious and charitable, then property would be given for both purposes. This is the case here. If an endowment is created by writing and in the writing it is described as debutter, this is certainly a piece of evidence in favour of dedication. But this is not conclusive. One has to look at the intention of the founder or the creator of the debutter. It seems to me from the objects expressed by the donor or settlor by the deed of 1888 and the deed of 1901 and the deed of 1907 that the endowment was both religious and charitable as the intention was not only to dedicate the properties to the deities but also to utilise part of the income for the purposes of chattur and dharmasala. The Raja who was a shebait made himself a trustee and the powers and duties with regard to the management of the trust property are enumerated in the aforesaid deeds. So, I must look to the deed of trust of 1888 and subsequent deeds to ascertain the intention of the settlor. It is provided in the deed of 1901

that all the covenants conditions and provision contained and embodied in the said indenture of 11th January, 1888, shall apply mutatis mutandis to these presents as if the same were herein contained and embodied.

Thus the power to grant lease for any term or period as contained in the deed of 1888 also becomes applicable to the additional endowment made by the deed of 1901.

The lease of 1908 wag granted by the Raja as trustee. The Raja knew his own intentions when he made the endowment. The legal ownership of the properties was vested in him as trustee and the deities were entitled to the benefit of the properties along with the chattur and the dharmasala, that is why he acted only as trustee in granting the lease of 1908.

It seems to me that Mr. Roy has rightly contended that in view of the express power to let or demise for any term or period the restrictions against permanent leases of debutter property cannot apply in the lease of 1908. The Raja Shew Bux Bagla''s powers as trustee had only one restriction, namely, he could grant a lease for any term or period, that is, a fixed term or period.

With regard to the contention of Mr. Gupta that the properties belonged to the deities and therefore, the power of the trustee and shebait will be as laid down in Hindu Law and not as laid down in the deed itself, I agree with the submission of Mr. Roy that even in out and out debutter, the shebait or manager is obliged and empowered to do what may be required for the service of the idol and for the benefit and preservation of its property. He is bound to carry out the direction given by the founder in relation to the worship of the idol and management of its property. (See Mukherjea, 3rd ed., pp. 121-22). Therefore, even if the properties belong to the deities, the directions of the founder will prevail and the shebait was and is not only empowered but obliged to carry out those directions for management of the properties. In the instant case, the founder himself understood that he had created a trust. That is why he granted the lease as trustee.

Mr. Gupta has contended that the power to let or demise is applicable only to other portion of Calcutta property. The Banaras property cannot be let out. The deed of 1888 contains a prohibition against sale, conveyance, charge or encumbrance of any of the properties or any portion thereof. According to Mr. Gupta, the mutatis mutandis clause in the deed of 1901 does not empower the trustee to let out or demise any property other than the surplus portion of Calcutta property. It is true that in Stroud''s Judicial Dictionary conveyance has been said to include lease. This is so under the English Law. Because, Section 205 of the Law of Property Act, 1925, expressly provides that a conveyance includes lease. But law in India is different.

In India, conveyance has been equated with transfer. But a lease falls far short of that and is only a transfer of a right to, enjoy immovable property (see Sections 5 and 105 of the Transfer of Property Act, 1882). Transfer of a property and transfer of only a right to enjoy it are obviously different. Deed of 1888 prohibits conveyance of any of the properties or any portion thereof but not transfer of any right or interest therein. The Court must read the deed as a whole and interpret the words in each clause to bring them into harmony with each other if that interpretation does no violence to the meaning of the words to which they are naturally susceptible. So, I must consider whether construction could be adopted which would have the effect of harmonizing all the parts of the deed and making it consistent throughout. The deed of 1888 gives power to grant lease in respect of portions of the Calcutta property. If the prohibition contained in the said deed is taken to mean a prohibition against lease, then the power to grant lease of the Calcutta property becomes nugatory. In other words, the prohibition would be taken to override the power to grant lease. This cannot be the meaning. It is useless to grant a power and then to cancel it by the same deed. So, on the principle of harmonious construction both the power and the prohibition must be read in its true sense, namely, that the word ''convey'' does not include lease. In any event, the deed of 1908 has given specific power to grant lease. The prohibition is general in terms and relates to all the properties. The specific power must override the general prohibition. Further, the power comes first, the prohibition comes later. Therefore, the former clause conferring the power must in any case override the latter clause containing the prohibition : Radha Sundar Dutta Vs. Mohd. Jahadur Rahim and Others, and The North Eastern Railway Company v. Lord Hastings (1900) A.C. 260 (268).

By virtue of the mutatis mutandis clause in the deed of 1901 both the power and the prohibition can be and should be applied to Salkia property. Mutatis mutandis means with the necessary changes. In other words, the expression "other portions of the house and premises at No. 51 Cotton Street" should be changed suitably so that the same power may apply to the properties described in the deed of 1901. That is the true meaning of the phrase mutatis mutandis. If both the power and the prohibition are incorporated in the deed of 1901 with necessary changes, then the effect will be that the Salkia property could be let out or demised for any term or period but the same could not be sold, conveyed, charged or encumbered, i.e. dealt with in any other manner. This is the only harmonious construction of the provisions of the two deeds. So, in this respect I accept the argument of Mr. J.N. Roy that in view of the express terms ''to let or demise for any period'' in the deed of 1888 and the mutatis mutandis clause in the subsequent deed of declaration of 1901 the Raja could grant a lease for any term or period, i.e. for a fixed term or period. The lease of 1908 was for 80 years and was, therefore, well within his power as trustee. In granting the lease the trustee has acted in terms of express power conferred on him by the deed of endowment or trust. It is, therefore, perfectly valid or binding on the estate. In this view of the matter the Plaintiffs are not entitled to avoid the lease dated June 30, 1908, after the demise of the Kumar on September 20, 1964.

The alternative submission of Mr. Roy on Issue No. 1 on the basis that the estate is the debutter estate in the true Hindu sense has also great force and I will accept the same. In the conception of debutter two essential ideas are involved. In the first place, the property which is dedicated to the deity vests in an ideal sense in the deity itself as a juristic person. In the second place, the ideal personality of the idol is in the nature of things linked up with the natural personality of the shebait who as person entrusted with the custody and worship of idol is obliged and empowered to do what may be required for the service of the idol and for the benefit and preservation of its property. The title to the debutter property is in the idol and not in the shebait who is not and cannot be a trustee in the sense in which it is used in English Law. The shebait is, however, a trustee in the general and ordinary sense of the term as the distinction between legal and equitable ownership is a highly artificial distinction which had its origin in England owing to purely historical reasons and such distinction is not essential to juristic conception of trust. The shebait must, therefore, carry out the founder''s directions not only in relation to worship of the idol but also as to the management of the property. In the instant case, the Raja was one of the donors. He was the shebait. He was also the trustee. As donor he directed that the shebait should grant lease for any term or period upon and subject to such rents covenants and conditions as the shebait shall think fit and he granted the lease of 1908. So, in this view of the matter Issue No. 1 has to be answered in favour of the Defendants.

I will now consider the other branch of the arguments of the respective parties on Issue No. 1 on the footing that the estate in the instant case is the debutter estate in the true Hindu sense. On this point Mr. Roy has argued that the lease of 1908 was not void and is not voidable and continues to be binding on the estate for the remainder of the term. Mr. Gupta on the other hand has argued that the lease of 1908 was void or voidable and in any event the Plaintiff No. 11 Satyanarayan Bagla, the third shebait and trustee, has avoided the lease.

The Hindu Law on this point is as follows:

Property dedicated to an idol is, as a rule, inalienable but exceptions to this rule have been recognised in the interest of the deity itself. A shebait can grant a permanent lease of debutter property in case of need or benefit to the estate. [See B.R. Mukherjea on the Hindu Law of Religious and Charitable Trusts, 3rd ed., pp. 219-21; Hunooman Persaud, 6 M.I.A. 393.]

In Prosunno Kumari Debya and Anr. v. Golab Chand Baboo L.R. 2 IndAp 145 (151) the Privy Council laid down as follows:

The authority of the shebait of an idol''s estate would appear to be in this respect analogous to that of the manager for an infant heir, which was thus defined in a judgment of this Committee, delivered by Lord Justice Knight Bruce:

"The power of the manager for an infant heir to charge an estate not his own is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded. But, of course, it that danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot take advantage of his own wrong to support a charge in his own favour against the heir grounded on a necessity which his own wrong has helped to cause. Therefore, the lender in this case, unless he is shewn to have acted mala fide, will not be affected, though it be shewn that with better management the estate might have been kept free from debt. See Hunooman Persaud Panday v. Mussumat Babooee Munraj Koonweree : 6 Moor''s Ind. App. Ca. 243.

In Maharanee Shibessouree Debia v. Mothooranath Acharjo 12 M.I.A. 270 (1) Supra (324-25) it was held by the Privy Council that lands which were dedicated for the religious services of an idol and managed by a she bait of the endowment, cannot be alienated by the shebait, but the shebait can create derivative tenures and estates conformable to usage. In that case the Privy Council Observed:

One important element in this inquiry has been wholly lost sight of, viz the nature of the shebait title and its legal inability to be the source of such a derivative title. To create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent, from time to time, would be a breach of duty in a shebait and is not, therefore, presumable.

The other reported cases of the Privy Council on the same point are : (i) Vidya Varuthi Thirtha (1), (ii) Seena Pena Reena L.R. 31 IndAp 83, (iii) Abhiram Goswami L.R. 36 IndAp 148 (161, 165, 167) and (iv) Palaniappab .(150, 151, 155-57).

In the above decisions the Privy Council has laid down that the grant of permanent lease by a shebait is justified and binding on the debutter only if there is a legal necessity for it or if the estate is benefited by it. Either legal necessity or benefit of the estate justifies a permanent lease sufficiently and to the same extent. See B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed. pp. 222-24); Hossein Ali ILR 34 Cal. 249 (256-58) and Niladri Sahu L.R. 53 IndAp 253 (262-68).

If there is no such justification, even then a permanent lease is binding on the debutter estate during the term of the grantor''s office, that is, till his office terminates with death, retirement j or removal. See Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., pp. 157, 227, 241).

In Mahanthram Charan Das v. Naurangi Lal and Ors. L.R. 60 IndAp 124 (130) the Privy Council observed:

According to the well-settled law of India (apart from the question of necessity which does not here arise) a Mahant is incompetent to create any interest in respect of the Math property to endure beyond his life.

In the absence of either legal necessity or benefit, a permanent lease granted by a shebait is not void but voidable at the option of the grantor''s successor. See B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., pp. 222, 229-30, 241), Ponnambala L.R. 63 IndAp 261 (276-77), Subbaiya L.R. 50 IndAp 295 (299-300) and Hemanta Kumari 50 C.W.N. 629 (631-33).

On the above principle of law Mr. Roy has submitted that the lease in the instant case is a long-term lease as distinct from a permanent lease and so the question of legal necessity does not arise. He submits that a permanent lease is one which is granted for all times to come. A lease for a fixed term is not and cannot be a permanent lease. He referred to Halsbury''s Laws of England (3rd ed., vol. 23, pp. 532-33) and Section 105 of the Transfer of Property Act, 1882. He has also referred to two Calcutta cases : (i) Bhairab Chandra Das and Others Vs. The Midnapur Zemindari Co., Ltd. and Others, and (ii) Giribala Dasi Vs. Kedar Nath Naskar, .

Mr. Roy further submits that in case of long-term lease (as distinct from permanent lease), as the question of legal necessity does not arise, it is enough to show that it was above board, i.e. fair and bona fide. On this proposition he has relied on B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., pp. 228-29) and a decision of the Allahabad High Court in Shyamlal''s case AIR 1964 All. 685.

Mr. Roy then contends that both parties (lessor and lessee) acted fairly and bona fide in respect of the lease of 1908. The fairness of the lease should be tested with reference to the circumstances prevailing at the time of the execution of the lease. Subsequent change of circumstances may be relevant for deciding whether the lease is for the benefit of the estate, because benefit may mean and include future benefit also. But in testing fairness, bona fides, etc. subsequent changes in circumstances are immaterial and the relevant circumstances are those prevailing at the time of the execution of the lease. He then referred to the facts and circumstances of the instant case and submits that the lease was above board. He contended that, in any event, the lease of 1908 was for the benefit of the debutter estate.

Before I deal with this branch of argument of Mr. Roy I will set out the contentions of Mr. Gupta. Mr. Gupta has formulated his points thus. A lease is valid only during the life-time of the shebait who makes the grant and the successor is entitled to challenge the same on the ground of want of legal necessity. For this purpose Mr. Gupta has relied on the following cases : (i) Abhiram Goswami and Anr. v. Shyama Charan Nandi and Ors. (Supra), (ii) Pala-niappa Chetty and Anr. v. Deiva Sikamony Pandara Supra, (iii) Vidya Varuthi Thirtha v. Balusami Ayyar and Ors. (Supra); (iv) Mahanthram Charan Das v. Naurangi Lal and Ors. Supra and (v) Srimath Daivarikhamani Ponnambala Desikar and Anr. v. Periyanam Chetti and Anr. Supra. The Privy Council cases cited by Mr. Gupta are cases where permanent leases or mourassi mokarari grants were made at fixed rent by the shebait or Mohant. The Privy Council cases are no authority to show that the same principle would apply to leases for fixed term. With regard to leases for fixed terms my attention was drawn to only two Indian cases. Mr. Roy invited my attention to Shyamlal''s case Supra and Mr. Gupta relied on the judgment of Mallick J. in The Official Receiver Vs. Iswar Baldev Jiu and Others, . I will note in this connection that Mr. Gupta stressed very much on the word ''alienate'' in Abhiram Goswami''s case Supra and submitted that this word ''alienate� includes lease for fixed term. I cannot accept this contention of Mr. Gupta because Abhiram Goswami''s case is a case where the Privy Council considered the power of a Mohant of an endowment to grant a mokarari patta or a permanent lease and in connection with the lease in question in that case the Privy Council observed:

It is well-settled law that the power of the Mohant to alienate debutter property is like the power of the manager for an infant heir....

Their Lordships of the Privy Council had no occasion to deal with the case of a lease for a fixed term and the above observation should be read on the facts of the case before their Lordships.

The lease of 1908 in the instant case is not a permanent lease. The lease (Ex. ''G'') shows that the grant is for 80 years certain to be computed from June 1, 1908, at a monthly rent of Rs. 238. The lease provides for option for another 10 years at a monthly rent of Rs. 300. The owners and occupiers taxes are payable by the lessee. Therefore, the Privy Council cases are distinguishable.

I will now consider the principles laid down in the Allahabad case Shyamlal v. Hiralal Supra relied on by Mr. Roy and the Calcutta case Official Receiver v. Iswar Baldev Jiu and Ors. Supra relied on by Mr. Gupta.

In the Allahabad case a lease in respect of certain area of land was granted by the Mohant of a temple for SO years renewable for another period of 30 years. The lessee granted a sub-lease. The sub-lessee filed a suit for declaration of title and for injunction against the Defendants from interfering with his possession. The Defendants were Mohant arid the Idol. The suit was dismissed. It was held by Courts below that the transaction was not for the benefit of the Idol. In the second appeal before the High Court of Allahabad the learned Advocate on behalf of the Appellant contended that there was no clear issue to enable him to adduce evidence (on the point of legal necessity). The Allahabad High Court did not accept the view and observed as follows:

The plea was distinctly raised in the written statement of the Idol that the transaction was not for lawful necessity. As 1 have already pointed out it was for the Plaintiff to establish the bona fide of the transaction and it was for him to show that the transaction was one which bound the Idol. Issue 1 framed by the learned Subordinate Judge related to legal necessity and that was a sufficient warning to the Plaintiff as to what he had to prove. The learned District Judge also framed an issue as regards legal necessity. The term ''legal necessity'' may not be strictly applicable to the circumstances of this case, but I have not the slightest doubt that it was for the Plaintiff to make out a proper case before the Court and to satisfy it that the transaction was above board and was binding on a minor or an Idol. The finding is very properly against the Plaintiff Appellant and the appeal must fail.

Mr. Gupta has submitted that the observation of the learned Judge that the term ''legal necessity'' may not be strictly applicable to the circumstances of the case and is obiter. In my view, the remark of the learned Judge that the question of legal necessity did not strictly arise, is not obiter, because, the question of ''legal necessity'' was raised as in case of permanent leases of debutter property. This plea was expressly taken in the Allahabad case and the sub-lessee failed to satisfy the Court on this point. The learned Judge thereafter observed that in case of long-term lease all that was necessary to see was whether the lease was above board. With regard to Allahabad case the learned author Dr. B.K. Mukherjea in the Hindu Law of Religious and Charitable Trusts (3rd ed., pp. 228-29) has approved of the Allahabad case and quoted the material part of the judgment as follows:

On the other hand, it has been held that when the lease was for 30 years and there was, only a nominal enhancement of rent for the renewed period, very strong evidence was necessary to show that the transaction was fair and bona fide, though, strictly speaking, no question of legal necessity arose.

In the same book (p. 226) the learned author expressed the same view as his own and observed as follows:

Strictly speaking, the question of necessity or benefit to the endowment arises when the alienation is of a permanent character. Ordinarily, leases of debutter land are not only permissible : they are in a sense necessary for the purpose of keeping up the worship of the Idol. As Kemp J. observed in Arrath Misser v. Juggernath 18 W.R. 439 without leasing out the lands it would not, be possible for the shebait to provide for the expenses of worship and to carry out the objects for which the lands were endowed.

I have no hesitation in accepting the views of the learned author as expressed in the above passage. There must be some difference between a permanent lease of a debutter estate at a fixed or unalterable rent and a lease for a term, because, in the former case the debutter estate is deprived of augmentation of rent for all times to come. But in case of a lease for a fixed term the lease terminates at the end of the term. In case where the fixed term is such that it tantamounts to a perpetual lease, viz. for 999 years, the position may be different. But that is not the case before me. The principle of law is well settled that a shebait can create derivative tenures. See Maharanee Shibessouree Debia''s case Supra. Therefore, it seems to me that Dr. B.K. Mukherjea very rightly accepted the view of the Allahabad High Court in Shyamlal''s case Supra.

I will now discuss the Calcutta case, The Official Receiver v. Iswar Baldev Jiu and Ors. Supra. In that case alienation of certain debutter properties was challenged. The alienation was by way of long-term leases granted by three persons constituting the committee of management under a scheme framed by this Court in an administration writ filed in 1926. Allegations were made that debutter estate was not administered according to the scheme and number of properties were wrongly alienated. The suit before Mallick J. was the second suit which was filed in the year 1950. The Court appointed a Receiver and authorised him to institute a suit for recovery of the properties alienated. The facts of the case were as follows:

The debutter estate was managed under a scheme framed by Court in the suit of 1926. The scheme set up a committee of five members. In case of death or vacancy by any other cause, the remaining members were obliged to fill up the vacancies by election. The leases were granted in 1946 by a committee of three members, two vacancies not having been filled up. Moreover, the power of the committee was to grant a lease for three years only. Any longer term could be granted with the consent of a majority of the shebaits at a general meeting. All the three leases were granted with alleged consent at general meetings where 16 or 17 shebaits attended out of a total number of 50 shebaits.

It was held that only verbal notices of the meeting were given to some shebaits only and no written notice in terms of the scheme has been given to any shebait.

On the above facts Mallick J. held that the surviving members of the committee had no power to grant the leases as they had failed to fill up vacancies which was mandatory under the scheme. So the leases were void. Mandatory rules as to notices to shebaits for general meetings had not been complied with. Members present at the three general meetings did not constitute the required majority. Thus, there was no proper sanction by the majority of shebaits to any of the leases for 82 years. So the leases were void for this reason also. The leases were also challenged on the ground of abnormally low rent and inadequate salamis. These contentions were also upheld by Mallick J. Lastly, it was contended that the leases were without legal necessity and not for the benefit of the deities. Against this contention it was submitted on behalf of the lessees that the doctrine of legal necessity would be attracted only to permanent leases. It was held by Mallick J. that the doctrine of legal necessity also applied to long-term leases. The reasons for applying the doctrine of necessity to long-term leases are set out in paras. 30 and 31 of the judgment.

In para. 30 the learned Judge said:

Dr. Das''s point is that a lease, in order to attract the doctrine of legal necessity, must be a permanent lease. A lease, however, long it may be, would not amount to alienation in the above sense, unless it is permanent. It find neither reason nor authority in support of this argument. It is true that most of the reported cases are cases of permanent leases. In the case of Haribhan Baliram v. Hakim reported in AIR 1951 Nag. 248, it was held that a lease for five years may be hit by the rule of legal necessity.

We find the following observation (p. 250):

Cases of leases in perpetuity have often come up before Courts But a lease does not cease to be an alienation because it is not permanent. Since what is necessary and beneficial to the family has to be judged by reference to all the circumstances of a given transaction, the duration of the lease may not be altogether irrelevant to the inquiry regarding family necessity or benefit.

It was the case of a lease for five years granted by a Mitakshara father and the question debated was whether it was hit by the rule of legal necessity. Trevelyn in his treatise on Hindu Law opines that a manager can create derivative tenures and estates conformable to usage and grant leases for a reasonable time. Manager of an infant''s estate or debutter estate, in the ordinary course of management, can induct tenants for a reasonable period. But granting of a permanent lease or a lease for a long period is not permissible, because such grants can never be considered to be in the ordinary course of management. It is considered to be extra-ordinary also because it results in the deprivation of the user of the property, permanently or for a long period on the part of the owner.

Then in para. 31 of the judgment the learned Judge observed:

Alienation means deprivation. And out and out means full deprivation. Mortgage or lease of a property is partial deprivation because the mortgagor still retains his right to redeem and the lessor his right to receive rent and the right to re-enter after the expiry of the lease. In the case of permanent lease, the right of re-entry is lost. The rule of legal necessity is to protect the estate in the hands of persons who are not full owners to prevent the deprivation of their property by the owners. That deprivation may be complete as in the case of sale, or partial as in the case of lease or mortgage. It is to prevent this deprivation that the rule of legal necessity has been laid down in Hindu Law. I find no reason to limit the rule only to cases of complete deprivation. It applies also to deprivation not complete but nevertheless substantial. It is not disputed that the rule does apply to mortgage and permanent lease. There is no reason to think that a long lease for 51 or 81 years which deprives its owners of the property for generations would not be hit by the rule. The rule was intended to prevent acquisition of interest in the family or debutter property by others on the basis of a transaction by persons who are not owners, that is by a manager or shebait. I hold, therefore, that the leases in the instant case are liable to be set aside even though they are not permanent, if it is found that they were not for legal necessity.

It is submitted by Mr. J.N. Roy before me that Mallick J. did not say that leases for 82 years amounted to permanent leases; on the contrary, he called them long-term leases. It is also submitted before me by Mr. Roy that the case was not fully argued before Mallick J. and the attention of the learned Judge was not drawn to Shyamlal''s case Supra (659) and the passages occurring in B.K. Mukherjea on the Hindu Law or Religious and Charitable Trusts (2nd ed., pp. 264 and 267; same passages also appear in the third edition of the same book by the learned author at pp. 226 and 228). It may be noted that the first of the above two passages, namely, at p. 264 of the second edition is really the opinion of the learned author and the second passage is a statement based on the Allahabad case but with the obvious approval of the learned author. It is submitted before me by Mr. Roy that if the view of Dr. B.K. Mukherjea had been cited, Mallick J. would have come to a different conclusion.

As I read the judgment of Mallick J. it appears to me as follows. Mallick J. referred to a case by a single Judge of the Nagpur High Court and said:

In Haribhan Baliram v. Hakim reported in AIR 1951 Nag. 248, it was held that a lease for five years may be hit by the rule of legal necessity.

But in the Nagpur case AIR 1951 Nag. 248 (251) the lease was not in respect of debutter property given by a shebait or Mohant, In that case lease was given by the adoptive father for five years in respect of Mitakshara joint family property after adoption and the adopted son impeached the lease contending that the lease was not binding on the family.

In that case R. Kaushalendra Rao J. observed:

Having regard to all the circumstances, the act of the father in granting the lease to some strangers from another village was not intended to confer any benefit upon the family estate but was clearly calculated to deprive the adopted son of the possession of the joint family property. The alienation was motivated by considerations of exclusive personal advantage of the father and was mala fide. I, therefore, hold that the lease was not binding upon the family and the lessees were not entitled to get possession of the property.

Mr. J.N. Roy has rightly pointed out that in the suit before Mallick J. the lease would continue for 65 years more after the judgment. In other words, the deprivation of the property would last for a substantial period. In the instant case, the deprivation will last for another 12 years plus 10 years if the option is exercised, i.e. for 22 years. It seems to me that the length of deprivation was a material factor in the opinion of the learned Judge.

In case of permanent lease of a debutter estate the Privy Council has laid down the principle quite clearly. Such lease must he granted in case of need or for the benefit of the estate. But in case of a lease for a term the same can be granted for a reasonable period. What is a reasonable period will depend on the facts and circumstances of each case.

I have expressed my personal views in the matter, but since there is a judgment of this Court of co-ordinate jurisdiction I will respectfully follow the same. I will note in this connection that an appeal was preferred against the judgment of Mallick J. and the Court of appeal consisting of A.N. Sen and Janah JJ. Jogendra Nath Naskar Vs. Official Receiver and Others, upheld the judgment of Mallick J. except with regard to mesne profits. However, it appears from the judgment in appeal that the finding of Mallick J. that the doctrine of legal necessity applied also to long-term leases was not challenged before the appeal Court.

I shall now turn to the facts of the instant case and consider whether on facts the lease is above board. I will also consider whether on the principle of law laid down by Mallick J. and the decisions of the Privy Council the lease can be upheld. I will note that Mr. Roy did not argue that the lease was granted for legal necessity but he argued that the lease was for the benefit of the estate.

On the question whether the lease was above board, 1 shall consider whether the lessee and the lessor acted fairly and bona fide at the time of execution of the lease of 1908. The oral evidence tendered before me on this point is not important, because both the Raja, who granted the lease and the original lessee Kissenlal Burman, who took the lease are no more in this world.

So, I will consider what the lease recites and the admitted facts of the case. The lease records that suit No. 113 of 1906 by Kissenlal Burman against the Raja as trustee of the idol Sri Sri Satyanarayanjee was pending in the Hooghly Court. It is also recorded that the suit was for specific performance of an agreement for lease. It is not recorded whether the agreement was for a permanent lease or for a lease for fixed term. It is recorded in the lease that the suit was settled by intervention of respectable men on terms as recorded in the lease. The lease further records that the Raja Shew Bux Bagla had taken advice on the matter and had been advised that the settlement was for the benefit of the debutter. Another object was to avoid cost and expenditure further to be incurred to the suit which threatened a heavy loss to the debutter estate. It is recorded in the lease that the demised land is a land by the side of the river Hooghly. The lease also provides that if any portion of the demised land is acquired under the Land Acquisition Act or otherwise, the leasee would get proportionate abatement of rent. But it is made clear that any decrease or reduction of the area of the demised land under any other circumstances will not entitle the lessee to any abatement of rent. The submission of Mr. Roy that this clause was and is intended to protect the debutter estate against loss or decrease of income of the riverside land being eroded or washed away or inundated or submerged. At least for 80 years there would be no decrease in the income even if the river Hooghly turned destructive. The lessee, in his own interest, would protect the land from erosion, inundation, etc. The lessee''s covenant to restore the land in its original condition is also relevant in this connection. The rent of Rs. 293 per month for five bighas of land compared very favourably with the total income from the entire debutter estate. The debutter estate comprised of 45 bighas 9 cottahs 8 chhataks of land. Out of this 39 bighas 13 cottahs were income-bearing in 1908. At that time the total income was Rs. 1,100 per month (Exs. ''A'', ''G'' �X� and ''Y''). It may be noted that both shares of municipal rates and taxes are payable by the lessee. With regard to the rate of rent it is significant to note that 27 years later, i.e. in the year 1935, the Kumar granted another lease of a contiguous plot of land at about the same rate of rent. If he could get any better rent there was nothing to prevent him from giving the second lease to someone else. If this rate of rent was best available in the year 1935 there is no doubt that the same rate of rent must have been considered fair and reasonable in the year 1908.

The above facts and circumstances of the case rule out the possibility of any unfair or underhand or mala fide conduct on the part of the either party at the time of granting of the lease of 1908. I am inclined to accept the submission of Mr. Roy that the lease was ''above board'', i.e. the lease was fair and bona fide. Thus, ON the principle of law laid down in the Allahabad case such a lease is not voidable and is binding on the debutter estate for the entire period of the lease and question of legal necessity does not arise.

I will now consider the question whether, in any event, the lease was for the benefit of the estate and is justified on this ground also. Alienation of debutter property by a shebait can be justified on ground of necessity or benefit of the Idol. See B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., p. 222). The words used in the judgment of the Privy Council are "in case of need or for the benefit of the estate." See Konwur Doorganath Ray v. Ram Chunder Sen and Ors. L.R. 4 IndAp 52 (63).

Mr. Roy has submitted that ''benefit'' or alternatively ''necessity'' is a justification for alienation of debutter property.

Mr. Gupta, on the other hand, has relied on Monohar Das Mohanta v. Tarini Charan Nandi 34 C.W.N. 135 and has contended that ''benefit'' and ''legal necessity'' are almost synonymous. He contends that benefit is almost identical with legal necessity which means preservation and protection of the estate. In this connection, 1 will quote the view of Dr. B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., p. 222):

Obviously necessity and benefit are two different ideas and there is a distinction between them, though in each individual case it is difficult to put them into water-tight compartments, as in the majority of cases the same facts upon which necessity could be pleaded would support the case of benefit as well.

The learned author says (p. 223):

It is quite possible to conceive of other cases where the transaction, though not absolutely necessary, is still beneficial in the sense that it is dictated by considerations of prudence in the circumstances of a particular case.

The word ''almost'' in the judgment of the Calcutta High Court in Monohar Das''s case Supra indicates that the word ''benefit'' and the phrase ''legal necessity'' are not synonymous in every case. Obviously, there is some difference between them. That is why the two terms are used with the disjunctive ''or'' in the judgment of the Privy Council. It is not possible to define exhaustively as to what circumstances would constitute necessity or benefit to the debutter estate. Each case would have to be decided on its own facts. See B.K. Mukherjea on Hindu Law of Religious and Charitable Trusts (3rd ed., p. 222).

With regard to ''benefit to the estate'' the Privy Council in Palaniappa Chetty''s case Supra observed:

It is impossible, their Lordships think, to give a precise definition of it applicable to all cases and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.

In the premises, Mr. Roy has rightly contended that either ''benefit'' or ''necessity'' is justification for alienation of debutter property. I will accept the contention of Mr. Roy that, on the facts of the case, defence against hostile litigation, protection of the estate or portions from injury or deterioration by inundation, would obviously be benefits. I am unable to accept the contention of Mr. Gupta that the lease was not for the benefit of the estate on the ground that the suit for specific performance was not a hostile litigation and there is nothing to show that the lease was for defending any hostile litigation. I accept the contention of Mr. Roy that hostile litigation means a litigation hostile to the deities as in the case before Mallick J. Supra. That case was a litigation wholly favourable to the deities. There may be similar other examples. A suit may be filed for removal of a delinquent shebait or for framing a scheme or for a declaration that a particular property is a debutter. The interested deities are invariably joined as Defendants. But such suits will not be hostile litigations to the deities. A litigation is hostile to the deities if the deities'' properties, assets or interest are likely to be prejudicially affected by the decree prayed for. A suit for specific performance of a lease of debutter property would certainly be a hostile litigation, in this view of the matter the Raja did not defend the suit. It does not appear what was the terms of the agreement sought to be, specifically enforced in the Hooghly suit, but the suit was settled by the intervention of the respectable men in the same terms as mentioned in the indenture of lease. The terms of the present lease of 1908 must have been better for the deities than the terms of the agreement, otherwise respectable men would not have advised the settlement. Mr. Gupta has contended that the suit for specific performance would have been dismissed in any event. This is a submission without support of adequate materials. I he contents of the agreement for lease are not known. It is not possible to say anything about the merits of the suit. Even if tire agreement was for a permanent lease, the suit might very well succeed if the Plaintiff in the Hooghly suit could prove legal necessity or benefit. It is not possible to say what material was available to the Plaintiff in that Suit No. 113 of 1906 of the Hooghly Court. Thus, it seems to me that in the instant case the lease could be supported on the ground of benefit to the estate for the following reasons, namely, (i) defending that portion of the estate from hostile litigation, (ii) avoiding costs, expenditure and heavy loss to the debutter estate arising from litigation and (iii) protecting the property in suit against decrease or loss of income in the event of the area being reduced by erosion or inundation or the river bank being washed away by the river Hooghly. The lease provides that there will be no abatement of rent except for the land or portion thereof being acquired under the Land Acquisition Act.

In my opinion, the above-mentioned reasons were sufficient to justify the lease and in the circumstances of the case the same was dictated by consideration or prudence for die benefit of the endowment. The lessee''s covenant to restore the rent in its original condition is a sufficient safeguard against loss or depreciation in value.

Mr. Roy has also submitted that there is a presumption of the benefit of the estate because for the last 58 years, i.e. from 1908 till November 22, 1966, there is no complaint about the rent or other terms and conditions of the lease or the circumstances in which it was granted. Before the notice or termination (Ex. ''M'') was given by H.L. Bhowsingka, Solicitor for Satyanarayan Bagla, no other action has been taken for avoiding the lease except that the third trustee and shebait Satyanarayan Bagla was not accepting the rent. (See Bagla Qs. 1201, 1217). It seems to me that Mr. Roy has rightly contended that there is a presumption of benefit of the estate in the instant case as the lease is challenged after a long time when all the original parties to the deed are dead. There is nothing in evidence or in the lease to rebut this presumption. See Mulla on Hindu Law (18th ed., Article 415A(2), p. 449), Bawa Magniram v. Kasturbhai L.R. 49 IndAp 54 and also Sree Sree Iswar Gopal Jieu Thakur Vs. Pratapmal Bagaria and Others, . It is well-settled that if all the original parties to the transfer by a shebait and those who could have given evidence on the relevant points such as legal necessity have passed away "a recital consisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside". It is now well-settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is not possible to ascertain fully what die circumstances were in which it was made, the Court should assume that the grant was made for necessity so as to be valid beyond the life of the grantor it was held by the Supreme Court in that case that the circumstances which could be gathered from the recital together with the fact that document had remained unquestioned for more than half a century, were quite sufficient to support the conclusion that the grant of a permanent lease was made for legal necessity and was binding on the deity.

In view of the above matter, I have no hesitation in accepting the contention of Mr. Roy that the Raja had the right and power to grant the lease for the period for which it was granted. In any event, the lease was given for the benefit of the debutter estate and as such it is binding on the deities and the Plaintiffs are not entitled to avoid the lease after the death of the Kumar.

Issue No. 1 should be answered accordingly. Mr. Roy has argued Issue No. 3 after Issue No. 1 for the sake of convenience. I shall now take up the Issue No. 3. Issue No. 3 as framed was as follows:

Are the Plaintiffs estopped from denying the relationship of the Defendants by reason of acceptance of rent?

The material pleadings upon which this issue was framed are in para. 20 of the plaint and in paras. 15 and 17 of the written statement of Defendant No. 3, the Receiver. At the time when the issues were framed the Plaintiffs and the Receiver appeared before me and the Learned Counsel for the Receiver placed the pleadings of the Receiver. Thereafter, at the trial and particularly at the time of argument, attention of the Court was drawn to paras. 20, 22, 23, 24 and 28 of the written statement of the Defendants Nos. 1 and 2. Mr. Gupta has contended that issue as to estoppel does not arise in this case. He suggested that the issue should be retrained as:

Did Bagla elect to create a new tenancy in favour of the Defendants?

Mr. Roy, on the other hand, submits that the real question in dispute on this aspect between the parties is whether by accepting rent Bagla has waived his right of re-entry, if any. In other words, Mr. Gupta has contended that there is no question of estoppel in the facts and circumstances of this case and Mr. Roy admits that, strictly speaking, there is no question of estoppel but he submits that this issue should be reframed.

Under Order 14, Rule 5 of the CPC the Court may, at any time, reframe or amend the issue as may be necessary for determining the matter in controversy between the parties. With regard to waiver there is adequate pleadings in paras. 16, 18 and 22 of the written statement of the Defendants Nos. 1 and 2.

It is true that in para. 15 of the written statement of the Receiver the word ''estoppel'' is used. Strictly speaking, the word ''estoppel'' is not appropriate in the facts of this case. But it seems to me that the term ''waiver'' or ''estoppel'' is not of such importance as the real question is whether Bagla accepted rent with intention to continue the tenancy. Both parties have understood the real question of dispute and have led evidence in support of their respective cases on the question whether by accepting rent Bagla relinquished his right of re-entry. Thus the real question which arises for consideration is whether by accepting rent on February 18 and March 5, 1965, Bagla has waived or relinquished his right of re-entry, if any and I shall reframe the issue accordingly.

Before I deal with the question of facts on this issue I will set out the propositions of law on the point.

Under the Hindu Law of Endowment, if a particular alienation by the shebait is not supported by legal necessity still it would not be void altogether and may enure so long as the shebait is alive or holds his office. A shebait, therefore, can even without legal necessity create an estate or tenure commensurate with his term of office and between the grantor and the grantee such estate would be valid though it would not be binding on the succeeding shebait. See B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., p. 221). In the absence of either legal necessity or benefit, a permanent lease granted by a shebait is not void but voidable at the option of the grantor''s successor. Such a permanent lease (i.e. a permanent lease which is not justified by legal necessity or benefit) may continue to be binding upon the grantor''s successor-in-office if the successor consents to the continuance of the lease. See Vidya Varuthi Supra (327-28), Pratapmull 48 C.W.N. 172 and B.K. Mukherjea on the Hindu Law of Religious and Charitable Trusts (3rd ed., p. 240). When a new shebait accepts rent specifically under a permanent lease, by such acceptance of rent, the new shebait gives his consent to the continuance of the lease during his term of office or, in any event, must be deemed to have given such consent.

Having regard to the above proposition of law, Mr. Roy has submitted that once such consent is given by acceptance of rent under the permanent lease or in any other manner, the new shebait thereby waives or gives up his right, if any, to avoid the lease and is estopped or prevented from challenging the lease during his term of office.

I will now turn to the facts and circumstances of the instant case and consider whether Bagla has relinquished or waived his right to challenge the lease. Mr. Roy has rightly submitted that this question need be considered only if the Court comes to the finding that the lease was and is an unjustified permanent lease and hence voidable at the instance of the new shebait Satyanarayan Bagla. If it is held that the lease is not permanent and not voidable, then Bagla could not and cannot avoid it and in that case the question of estoppel or waiver or loss of right to avoid would not arise. Non-existent right cannot be waived.

Since this Court has come to a finding that the lease is not a permanent lease and answered Issue No. 1 in favour of the Defendants, question of estoppel, waiver or loss of right on the part of S.N. Bagla would not arise. So, it is not necessary to answer Issue No. 3. But as this point has been argued and evidence has been led, I shall answer the issue on the assumption that the lease was unjustified and hence voidable at the instance of the new shebait S.N. Bagla.

From the evidence of Bagla it appears that he collected rents after obtaining a certified copy of the lease. Bagla collected rents for six months, namely from September 1964 to February 1965, both inclusive. (Bagla Q. 84). First three months'' rents were paid on February 18, 1965, (Ex. V-1), next three months'' on March 5, 1965 (Ex. V-2). In his oral evidence Bagla admitted that he got the certified copy of the lease in February 1965 (Bagla Qs. 397 to 399).

Mr. Gupta has submitted that there has been no unconditional acceptance of rents by Bagla as rents were accepted without prejudice to the Plaintiffs'' rights and contentions. According to him, by accepting rents the Plaintiffs are not debarred from exercising their right of re-entry. Bagla had no intention to continue the tenancy.

In examination-in-chief Bagla said that his father Kumar Gangadhar Bagla was the sole shebait and trustee for a period of 55 years till his death on September 20, 1964. He continued to receive rents under the lease of 1908 and granted receipts to the Defendant No. 1 S.C. Chunder till the month of August 1964. After the death of his father rent bill for September 1964 was made out under his instructions. He said, "it was arranged that I will accept rent without prejudice to the rights and contentions." (Bagla Q. 79)

The counterpart of rent bill for September 1964 is not produced. Rent bill for October 1964 is not in the brief, but counterparts of rent bills for November 1964 (Ex. 30), December 1964 (Ex. 31), January 1965 (Ex. K) and February 1965 (Ex. L) are tendered. In each of the counterparts of the rent bills tendered there is a printed note No. 3 : "This is without prejudice to the rights and claims of landlord discovered on scrutiny". In answer to questions put by the Court, Bagla has said that after his father''s death when he issued rent bills to each of the tenants, he got note No. 3 printed of his own and he did not consult each of the tenants in this respect. (Bagla Qs. 1496 to 1499). I will mention here that printed note No. 3 was common to all tenants. Even for monthly tenants the same note No. 3 was used. (Bagla, Qs. 1433-1435, 1445-1452). Bagla has admitted that the real meaning and intention of note No. 3 was to increase rents payable by the tenants in as many cases as possible. (Bagla Qs. 1444, 1528 to 1530). He said that increase of rent was his sole motive. (Bagla, Qs. 1453 to 1458). In his oral evidence Bagla has said that he printed note No. 3 as per telephonic talk between him and Madhusudan Chunder. (Bagla, Qs. 1570 and 1571). In this connection reference was made by Mr. Gupta to the letter dated January 6, 1965 (Ex. 14) by Bagla to M/s S.C. Chunder and Company In that letter Bagla has raised only two contentions, namely, about change of name and about subsistence or expiry of the lease. He did not say anything about validity of the lease. Thus the words ''without prejudice etc.'' mentioned in that letter must be referable to those two contentions only and not to any question as to validity of the lease. In the letters and correspondence tendered there is no mention of any telephonic talk about the words ''without prejudice etc.'' printed in the rent bills. On July 8, 1965, (Ex. 15) Bagla recorded an entirely different telephonic conversation. On the question whether there was endorsement on the back of the bills, Mr. Roy has cross-examined Bagla that the story was improbable on the face of it. In cross-examination Bagla has said that it might be that there was no endorsement (Bagla, Qs. 1570 to 1574).

Madhusudan Chunder in his oral evidence did not admit that the words ''without prejudice etc'' related to the validity of the lease. The original rent bills, however, could not be produced as it'' was stated that the same were lost. (Pathak, Qs. 11 to 14). Bagla admitted in his oral evidence that he never expressly raised any question as to validity of the lease. Bagla said that before Bhowsingka''s letter dated November 22, 1966 (Ex. ''M'') he had not taken any other action for avoiding the lease. He said that he did not do anything else to avoid the lease before November 22, 1966, but in, his mind he avoided lease immediately after the death of his father (Bagla, Qs. 1202 to 1205). Before the letter dated November 22, 1966, he did not express in any letter that he wanted to avoid the lease. He said, ''It was in my mind'' (Bagla, Qs. 688, 689 and 701).

It is difficult to accept the oral evidence of Bagla that rent was collected ''without prejudice'' after discussion with Madhusudan Chunder. It is not recorded in any correspondence. On the other hand, Bagla admitted that rent bills were printed without consulting the tenants. The words without prejudice appeared in every bill with regard to other tenants also. The words ''discovered on scrutiny'' in note No. 3, cannot mean right to avoid the lease. Admittedly, upto the date of the notice to quit on November 22, 1966, Bagla did not do anything expressly to avoid the lease, although the right to avoid the lease was in his mind since the death of his father. Therefore, the question as to right to avoid the lease could not be ''discovered on scrutiny''. Bagla has admitted that increase of rent was his sole motive and intention.

The right of Bagla to avoid the lease as claimed in the suit was never discussed nor asserted orally or in correspondence except that, for the first time, on November 22, 1966, (Ex. ''M'') Bhowsingka, the Solicitor of Bagla, gave notice to quit and vacate to M/s S.C. Chunder and M/s S.C. Chunder and Company on the ground, inter alia, that the tenancy accepted by Gangadhar Bagla came to an end on his demise. On the oral evidence and on the correspondence that passed between the parties, it seems to me, that the words ''without prejudice etc.'' in note No. 3 can have no reference to the alleged right of re-entry or avoidance of the lease.

Bagla has accepted rent for six months. ''Rent'' means an amount payable by a tenant or lessee periodically to the owner of immovable property, as consideration for the right to enjoy such property (Section 105 of the Transfer of Property Act). In its wider sense ''rent'' may mean payment made for use of land and building and thus may include payment by licensee in respect of use and occupation in any land or building. State of Punjab and Another Vs. British India Corporation Ltd., .

In his evidence Bagla said that he always knew the meaning, of ''rent'' and there was no question of licence in this case (Bagla, Qs. 210-215, 1507 to 1515). Therefore, question of licence does not arise in this case. Rent bills tendered before me expressly state that the rents were received by Bagla under the lease dated June 30, 1908 and May 24, 1935, (See Exs. K, L, 30 and 31). Bagla collected rents from M/s S.C. Chunder expressly under the two leases specifying their dates in the rent bills (Bagla, Qs. 1503 to 1506). Therefore, Bagla knew specifically that he accepted rent under the lease. As soon as the amounts paid by or on behalf of M/s S.C. Chunder were received and accepted as rent under the lease of 1908, S.C. Chunder was accepted as lessee and Bagla stepped into the position of the lessor and the entire transaction was acknowledged to be a subsisting lease.

Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of right. Waiver sometimes partakes of the nature of election : P. Dasa Muni Reddy Vs. P. Appa Rao, . Thus, in this case Bagla was fully aware of his rights as a new shebait which, according to him, included the right to avoid the lease. He knew of this right immediately after his father''s death. His cause of action arose on September 20, 1964, according to his own case in the plaint. He knew two material points about the lease immediately after his father''s death, namely, the lease was for a long period and the rent was fixed. With full knowledge of his rights as he understood them. Bagla proceeded to collect rents instead of pursuing his right, if any, to avoid the lease. These rent collections were made by him intentionally or voluntarily. From the evidence of Bagla himself it is clear that he collected rents after obtaining a certified copy of the lease. He said that he got the certified copy sometime in February 1965. It is contended before me that he saw the certified copy even before February 18, 1965. There can be no doubt that he had got the lease before he collected rent on March 5, 1965. It seems that the earlier rent collection of February 1965 was also made after he had seen the lease; otherwise he could not give the date ''June 30 1908'', in the receipts issued on February 18, 1965.

A party can waive a right it the waiver does not lead to an illegality. In the case of a shebait the law is clear that a permanent lease is not void ad initio, but every shebait has a right to accept a permanent lease during the term of his office. Therefore, Bagla could waive his right, if any, to avoid the lease. He did so by accepting rent. The words ''without prejudice etc.'' in note No. 3 cannot relate to his right to dispute the validity of the lease. From June 30, 1908, till November 22, 1966, (Ex. M) there was never any dispute as to validity of the lease of 1908 in the correspondence which has been tendered in evidence there is no reference to any dispute regarding the validity of the lease upto November 22, 1966. Thus, not only during the management of the Raja and the Kumar, but even during Bagla''s own management for over two years upto November 22, 1966, no dispute was ever raised relating to the validity of the lease. Admittedly, rent receipts were issued by the Kumar in the name of M/s S.C. Chunder from May 1941 to August 1964. Twice there was dispute with the Kumar first, in 1941 when M/s S.C. Chunder asked for mutation in its favour, secondly, in 1960 when M/s S.C. Chunder and Company asked for another mutation from S.C. Chunder to M/s S.C. Chunder and Company It also appears that Bagla, with full knowledge of his rights as the new trustee and shebait, i.e. his right to avoid the lease of 1908, even offered to make a mutation in favour of M/s S.C. Chunder and Company, subject to two other conditions, but not subject to any condition or question with regard to validity of the lease. (See letter dated July 8, 1965). He said that he obtained opinion of the counsel and before he took opinion he did not know whether the lease could be avoided; but he said that it was in his mind ever since he saw the lease (Bagla, Qs. 678 to 680).

In the above circumstances, it seems to me that the expression ''without prejudice etc'' did not refer to any right or claim relating to the validity or voidability of the lease of 1908. The Defendants could not know what was in the mind of Bagla till he expressed his intention to avoid the lease by his Solicitor''s letter dated November 22, 1966.

In the premises, I accept the submission made by Mr. Roy that the Plaintiffs have waived their right, if any, to dispute the validity of the lease of 1908 and they are estopped from denying the relationship of the Defendants by reason of acceptance of rent.

Mr. Gupta has relied on Umesh Jha v. State AIR 1956 Pat. 425 and Paradise Industrial Corpn. Vs. Kiln Plastics Products, . I shall refer to those decisions now. Umesh Jha v. The State and Anr. is a case under Article 226 of the Constitution of India, in that case, the Petitioner took settlement of two plots which were tanks in a certain village in the district of Darbhanga from the landlords and paid rent to the landlords so long as the estate was in their possession. Later on, the estate vested in the Mate of Bihar under the provisions of the Bihar Land Reforms Act. Thereafter, the Petitioner paid rent to the State of Bihar. The Additional Collector of Darbhanga, u/s 4(h) of the Act passed an order annulling the settlement and called upon the Petitioner to give up possession of die plots in question, in support of the application one of the points taken by the Petitioner was that the State of Bihar having accepted rent from the Petitioner was not entitled to challenge the genuineness and validity of the settlement. The Court held that this contention of the Petitioner has no substance and observed:

it is die admitted case of the parties that the rent that was accepted by the State of Bihar from the Petitioner for the year 1361 Fasli was accepted without prejudice and this fact was noted on the receipt itself. That being so, there is no force in die argument that the State of Bihar was estopped from challenging the genuineness and validity of the settlement u/s 4(h) of the Act. The words without prejudice inport into any transaction that the parties have agreed that as between themselves the receipt of money by one and its payment by the other shall not by themselves have any legal effect on the rights of the parties, but they shall be open to settlement by legal controversy as if the money had not been paid.

The above observation in the Patna case was made on the facts of that case which are different from the facts of the instant case. In the Patna case, the words ''without prejudice'' were put in to indicate that the parties have agreed between themselves that the receipt of money by one or the payment by the other shall not have any legal effect. But on the facts of the instant case the words "without prejudice to the rights and claims of the landlord discovered on scrutiny" were printed reserving the rights of the lessor with regard to change of name of the lessee from S.C. Chunder to S.C. Chunder and Company and on the question whether the lease expired or remained subsisting at the time when Bagla became shebait and trustee after the death of his father. Bagla did not reserve his right to challenge the validity of the lease by agreement between the parties, but his motive was to increase the rent.

I have already discussed the facts and circumstances under which note No. 3 without prejudice etc. was printed in the rent bills. Further, in the Patna case the transfer or settlement or lease was ultimately not allowed to be set aside on another ground, namely, the Additional Collector had no power u/s 4(h) of the Bihar Land Reforms Act, 1950, to consider the validity of such a transaction made before January 1, 1946. Therefore, in the Patna case rent collection without prejudice did not help the owner, that is, the State of Bihar.

In Paradise Industrial Corporation v. Kiln Plastics Products Supra the Defendants were allowed to deposit an amount without prejudice to the rights and contentions of the parties. This was by order of the Court. When the Court makes an order without prejudice to the rights and contentions of the parties, the meaning is quite clear. It means that the rights and contentions of both the parties which have been specifically brought before the Court by the pleadings or otherwise are not to be affected by the order made ''without prejudice''. In such a case there can be no doubt as to what rights are being saved or reserved for future adjudication. But in the instant case the facts are different. True, the words ''without prejudice etc.'' are printed in the rent bills, but the question is what were the right or rights which were preserved.

Bagla never said which particular right or rights were ''without prejudice''. He has admitted that he never mentioned orally or in writing his alleged right of re-entry after Kumar''s death except in his Solicitor''s letter. Therefore, the words ''without prejudice etc.'' in note No. 3 printed by Bagla cannot have the effect of reserving or protecting the right of re-entry or the right to challenge the validity of the lease which was not known to the Defendants at all. Therefore, the Supreme Court case cannot apply under the facts of this case.

Mr. Roy has submitted that with regard to collection OR rents without prejudice the principle of law is well settled. Mr. Roy has formulated his points thus:

Acceptance of rent due alter forfeiture from the lessee and this, notwithstanding the protest of lessor that such acceptance is without prejudice to his rights to insist upon his forfeiture operates as a waiver of the Notice. This is so even it the lessor accepts money as compensation for use and occupation and not as rent and refuses to recognise the party paying as his tenant. Acceptance of rents, even in such circumstances, constitutes a recognition of the continuance of the tenancy.

For these propositions he has cited a number of cases. I shall refer to some of the cases here.

In Bengal-Nagpur Railway Company, Limited Vs. Firm Bal Mukunda Biseswar Lall, Mookerjee and Rankin JJ. held:

The principle of law applicable to cases of this character is now well-settled. The acceptance of rent due after forfeiture from the lessee--and this notwithstanding the protest of the lessor that such acceptance is without prejudice to his right to insist upon his forfeiture--operates as a waiver of the notice.

He has also referred to a number of English cases. In Devenport v. Reginam (1874-80) All E.R. (reprint) 157 (158, 164-65) : 3 A.C. 115 the headnote runs as follows:

If a lessor, after notice of a forfeiture of the lease, accepts rent which accrues after the forfeiture, his act amounts to an affirmation of the lease and a dispensation of the forfeiture. If money is paid and received as rent under a lease a protest by the lessor that it is accepted conditionally and without prejudice to the right to insist on the prior forfeiture cannot countervail the fact of the receipt. The intention of the lessor in accepting the rent is immaterial in considering the question of waiver.

The Privy Council observed (1874) All E.R. (reprint) 157 (158, 164-65) : 3 A.C. 115:

The notification itself describes the payments as ''rent'' and their Lordships have no difficulty, upon the evidence before adverted to, in coming to the conclusion of fact, that the money was not only paid, but received as ''rent''. A question of this kind received great consideration in the House of Lords in Croft v. Lumley (1858) 6th case 672 : 27 L.J.Q.B. 321. In that case the facts were much more favourable to the contention that there was no waiver than in the present. The tenant tendered and paid the rent due on the lease after the landlord had declared that he would not receive it as rent under an existing lease, but merely as compensation for the occupation of the land. The opinion of all the Judges, except Crompton J., was that the receipt of the money under these circumstances operated as a waiver. In the present case, the rent, as already stated, was received as rent, with at most, a protest that it was received conditionally and without prejudice to the right to deal with the land as forfeited. Lord Wensleydale, who was disposed to agree with Crompton J., in his conclusion of fact in the particular case, appeared to have no doubt that when money is in fact received as rent the waiver is complete. Without finding it necessary to invoke this opinion to its full extent in the present case, it is enough for their Lordships to say that where money is paid and received as rent under a lease, a mere protest that it is accepted conditionally and without prejudice to the right to insist upon a prior forfeiture, cannot countervail the fact of such receipt. The finding of the jury that there was no waiver appears from the notes of the learned Judge who tried the cause to have been founded on his direction that the intention of the party receiving the rent and not of the party paying it, must be looked at in considering the question of waiver and that unless the jury were of opinion that the rents were received after May 23, 1869, unconditionally and unreservedly, they should find no waiver.

The above principles of law are well-settled and I accept the same. Mr. Roy has also cited a number of cases on this point. It is not necessary to discuss all the cases as similar principles of law have been laid down in those cases. If money is paid by the lessee or tenant and accepted as rent by the lessor or landlord, even if the lessor says ''without prejudice'' and no matter what the lessor''s intention may be, the lessor, by accepting payment as rent recognises the tenant or lessee as tenant. By such acceptance of rent there is an unequivocal act done by the landlord which recognises the existence of the lease. By accepting rent the landlord or lessor recognises the person who is paving rent as tenant or lessee.

I would like to quote here the principle of law laid down in Segal Securities Ltd. v. Thoseby (1963) 1 All E.R. 500 (505) which runs thus:

This well-known exposition of the common law rule that acceptance of rent without prejudice is in law a waiver, reads it is also, I think, reasonably clear upon the cases that whether the act coupled with the knowledge constitutes a waiver is a question which the law decides and therefore, it is not open to a lessor who has knowledge of the breach to say : "I will treat the tenancy as existing and I will receive the rent, or I will take advantage of my power as landlord to distrain, but I tell you that all I shall do will be without prejudice to my right to re-enter, which I intend to reserve." That is a position which he is not entitled to take up. If, knowing of the breach, he does distrain, or does receive the rent, then by law he waives and nothing he can say by way of protest against the law will avail him anything.

Under the facts and circumstances of the instant case money was paid under the lease as rent and the same was accepted as rent by Bagla. By such acceptance of rent he waived his right to dispute the validity of the lease of 1908 and the Plaintiffs are estopped from denying the relationship of the lessor and the lessee.

Issue No. 3 should be answered accordingly. I shall now deal with Issue No. 2. Here, the question is whether the Plaintiffs lawfully avoided the lease by the letter dated November 22, 1966. The letter or notice dated November 22, 1966, has been proved by Bagla (Ex. M). Mr. H.L. Bhowsingka addressed this letter to M/s S.C. Chunder and to M/s S.C. Chunder and Company of Clive Ghat Street, Calcutta, on instruction from Bagla, the sole shebait and trustee of the Plaintiffs deities. In this letter it was written, inter alia, as follows:

The lease being without increment of the rent was not for the benefit of the debutter estate. The lease came to an end on the demise of Kumar Ghangadhar Bagla on September 20, 1964. Payment had been accepted by Bagla till February 1965 without prejudice to the rights and claims of the deities and subject to scrutiny. Notice was given to quit and vacate on expiry of May 1967. This was six months'' notice to quit.

The notice is self-contradictory and also contains certain statements concerning the Raja and the Kumar which are not correct. It is stated in the notice that the Raja granted the lease as shebait and agent of the Plaintiff No. 1, but Ex. ''G'' shows that the Raja granted the lease as trustee of Sri Sri Satyanarayanjee of 51 Cotton Street and not as shebait. It is also stated in the notice that the Kumar became, first, one of the shebaits and then the sole shebait, but by the deed of 1907 (Ex. E) the Kumar was appointed not only to the office of shebait but also as a trustee of the endowment. The statement in the notice that the Kumar exceeded his power is erroneous, because, the Kumar was both shebait and trustee. In either capacity he had every right to continue the lease granted by his father. The lease of 1908 is for a period of 80 years. Therefore, any question relating to monthly tenancy of S.C. Chunder and Company and its termination does not arise.

With regard to termination of the lease of 1908 the Plaintiffs have taken a stand which is self-contradictory. It is stated in the notice (Ex. M) that the lease or tenancy ceased to be effective on the demise of the Kumar on September 20, 1964. At the same time the same lease and tenancy are sought to be terminated on expiry of the month of May 1967. It is difficult to follow from the notice what would be the position or status of the tenant or lessee from September 21, 1964, to May 31, 1967. Again, for nearly three years after the death of the Kumar the lease or tenancy was not sought to be terminated. By the notice the Plaintiffs, having terminated the lease and tenancy with effect from the expiry of the month of May 1967, cannot say that the lease had terminated or become void earlier. Further, Ex. ''M'' is a notice to avoid the lease on the expiry of the month of May 1967. Therefore, the lease was not avoided for the period from September 21, 1964 to May 31, 1967. If the lease was not avoided for the period of two years eight months and ten days, the result is that Bagla allowed the lease to subsist during that period. Further, the notice of termination (Ex. M) is a six months notice expiring with the end of a year of the lease or tenancy. Such notice is required u/s 106 of the Transfer of Property Act only for terminating a lease for agricultural or manufacturing purposes and such notice is given only when there is a subsisting lease. A void or voidable lease does not call for a notice of termination u/s 106 of the Transfer of Property Act.

I have discussed the self-contradictory and incongruous nature of the notice (Ex. M). In view of my finding in answer to Issue No. 1 that the lease of 1908 was not void and is not voidable at all and in view of my finding in answer to Issue No. 3 that even if the lease had been voidable Bagla had lost the right to avoid the same; it would follow that the Plaintiffs could not and did not lawfully avoid the lease by the letter dated November 22, 1966.

I will note in this connection that at the time of argument, however, Mr. Gupta, the Learned Counsel for the Plaintiffs, did not press any reliance on the notice to quit, as he realised the difficulty to substantiate it. He argued that after the death of Gangadhar Bagla the lease of 1908 did not subsist under the Hindu Law. I have already dealt with this branch of argument of Mr. Gupta.

I shall deal with Issue No. 4 now. It relates to Plaintiffs'' claim for damages and mesne profits. In view of my finding that the lease is continuing it could not be and has not been lawfully avoided. The lease is valid and binding. Therefore, the questions of damages and mesne profits do not arise. However, as this issue has been argued I will briefly indicate my views.

Bagla has said in his oral evidence that the Defendants or anyone of them did not make over possession in compliance with notice to quit. The letting value of the suit land would be at least Rs. 20 per cottah per month and he is claiming mesne profits or damages at the rate of Rs. 20 per cottah per month. According to his calculation, it amounts to Rs. 2,091-25 per month for the land which is the subject-matter of the suit (Bagla, Qs. 114 to 117 and 135). According to him, the amount comes to Rs. 2,15,398-75 from June 1967 till December 1975 (Bagla, Q. 136). He has admitted that under orders of the Court he received certain sum from the Receiver. The amount that he received from the Receiver under order of the Court dated March 11, 1974, was without prejudice to his rights. The arrears under Clause (4) of that order upto December 1973 comes to Rs. 32,436 and from January 1974 to November 1975 at Rs. 306 per month it comes to Rs. 7,038. Total amount is Rs. 39,474. Bagla has said that he received the amount from the Receiver after transfer of the suit to the High Court. He has also received the amount of Rs. 306 for the month of December 1975.

In the plaint, Bagla has claimed mesne profits from September 20, 1964, i.e. since after the death of Kumar Gangadhar Bagla. But in the notice to quit tenancy was sought to be terminated with the expiry of May 1967. Therefore, question of mesne profits could only arise under the notice from June 1967. Mr. Gupta has said that the Defendants have sublet the premises and are realising very large amounts from the sub-tenants. According, to him, the Defendants are realising to the extent of Rs. 8,000 to Rs. 10,000 per month.

Mr. Roy, on the other hand, contends that u/s 2(12) of the Code of Civil Procedure, mesne profits shall not include profits due to improvement made by the person in wrongful occupation. Mr. Gupta has relied on some cases. Mr. Roy has also referred to the judgment of the Appeal Court in Jogendra Nath Naskar v. Official Receiver and Ors. AIR 1975 Cal. 398 and has submitted that judgment of Mallick J. on question of mesne profits was not upheld by the Appeal Court. In any event, I am not satisfied on the evidence of mesne profits tendered before me. In the plaint there is a prayer for enquiry as to damages. Mallick J. granted mesne profits at the average rate of 50 % more than the agreed rates, but the Court of Appeal in Jogendra Nath Naskar v. Official Receiver set aside the judgment and decree on this point and allowed the parties to adduce further evidence on the question of mesne profits by passing a preliminary decree for mesne profits. So, if the argument of Mr. Gupta is accepted, I would follow the judgment of the Appeal Court in the instant case also. In view of my findings that the lease is not void and the same is continuing and also that the lease has not been lawfully avoided and has become binding on the parties, the question of mesne profits does not arises.

I have discussed all the issues raised in this suit. Before answering the issues shortly arid also before dealing with the prayers in the plaint, I shall deal with another branch of argument of Mr. Gupta which was not ultimately pressed. Mr. Gupta and Mr. S.N. Bagla (with leave of the Court) have submitted as follows : The original lessee was Kissenlal Burmanr S.C. Chunder purchased the leasehold right title and interest of Kissenlal Burman under the lease dated June 30, 1908. Kumar Gangadhar Bagla accepted S.C. Chunder as the lessee under the lease of 1908. Cheques were issued by S.C. Chunder and Company since 1941. In 1960, i.e. after 19 years, S.C. Chunder and Company asked for mutation of the name of S.C. Chunder and Company as the lessee. S.C. Chunder and Company was not accepted as lessee, as according to the Kumar and also according to the subsequent shebait and trustee S.N. Bagla, S.C. Chunder and Company failed to prove the transfer of right title and interest of S.C. Chunder to S.C. Chunder and Company The two firms S.C. Chunder and S.C. Chunder and Company are distinct and different firms. The firm S.C. Chunder is no longer in existence. This is admitted by S.C. Chunder and Company S.C. Chunder and Company are in occupation on behalf of S.C. Chunder. S.C. Chunder and Company are simply monthly tenants. S.C. Chunder, the Defendant No. 1, is not contesting the suit. Therefore, the suit is an undefended suit against S.C. Chunder. The only right of the firm S.C. Chunder and Company, if any, is as monthly tenant; but, with regard to the suit land, neither the West Bengal Premises Tenancy Act nor the Thika Tenancy Act will apply. Therefore, this Court should pass an undefended decree for possession against S.C. Chunder and Company

I have indicated to Mr. Gupta that it is difficult for me to accept this argument for the following reasons:

There is no pleading in this suit that the firm S.C. Chunder has ceased to exist. On the other hand, in the suit it is pleaded that both S.C. Chunder and S.C. Chunder and Company are existing firms. In paragraph 23 of the plaint, the Plaintiffs have stated that S.C. Chunder and Company, the Defendant No. 2, claims to be in occupation of the said plot of land on behalf of S.C. Chunder, the Defendant No. 1. This is a suit for possession of the property which is the subject-matter of the lease of 1908 on grounds stated in the plaint.

The lease in favour of the Defendant No. 1 S.C. Chunder is sought to be avoided on the grounds stated in paras. 7 and 22 of the plaint. M/s S.C. Chunder was admitted or accepted as lessee under the lease of 1908. Notice of termination of tenancy has been given on November 22, 1966, to both the Defendants Nos. 1 and 2 as stated in para. 26 of the plaint. It is also stated in the plaint that the Defendant No. 2 is in occupation on behalf of the Defendant No. 1. Therefore, possession of the suit land of both the Defendant No. 1 and the Defendant No. 2 is admitted or accepted. The Plaintiffs are seeking to set aside or avoid the lease on grounds stated in the plaint. It is not a ground of the Plaintiffs in the plaint that the Defendant No. 1 S.C. Chunder has become nonexistent or that the Plaintiffs are entitled to possession, because, Defendant No. 1 does not exist at all or that the leasehold interest of the lease has been reverted to the lessor. Whether the Defendant No. 2 S.C. Chunder and Company should be accepted as lessee or not in place of the Defendant No. 1 is a different matter and is not a question to be tried in this suit. It is also not a question to be tried in this suit whether the Defendant No. 1 has become non-existent or whether leasehold interest has been reverted back to the lessor. There is no such pleading in the plaint. There is no such admission before me by the Receiver. No issue has been raised or could be raised on this point.

Mr. Gupta ultimately does not press the above points and has contended that he is entitled to decree on the ground that the lease is void or voidable under the Hindu Law and is not subsisting after the death of the Kumar. These are points which have been raised in the issues and I have already discussed the same in detail. I shall now shortly answer the issues and the prayers in the plaint.

Issue No. 1 : No.

Issue No. 2 : No.

Issue No. 3 : (As retrained) Yes.

Issue No. 4 : No.

Issue No. 5 :

The Plaintiffs are entitled to receive and the Defendants are willing to pay rents. I am making it clear that 1 am not deciding the question whether the Plaintiffs have accepted S.C. Chunder and Company as tenants. But in view of my finding that the lease is continuing and admittedly S.C. Chunder was the lessee the question whether the Defendant No. 2 has been accepted as tenant by the Plaintiffs does not arise in this suit. Accordingly, the Plaintiffs are entitled to receive rents at the rate mentioned in the lease of 1908.

I shall now deal with the prayers in the plaint. First part of prayer (a) is not pressed before me in this suit and it is not necessary to answer the same. With regard to the second part of prayer (a) I answer in favour of the Defendants and against the Plaintiffs. In my view, the Defendants or anyone of them have the right title and interest to retain possession of the leasehold property under the lease of 1908. Prayer (b) is answered against the Plaintiffs and in favour of the Defendants. The lease dated June 30, 1908, is binding on the Plaintiffs deities. Prayer (c) is answered against the Plaintiff. The Plaintiffs are not entitled to cancellation and delivery of the indenture dated June 30, 1908. Prayer (d) is answered against the Plaintiffs. The Plaintiffs are not entitled to declaration that the lease dated June 30, 1908, or tenancy in respect of the land referred to the schedule to the lease came to an end on the death of Kumar Gangadhar Bagla on September 20, 1964. The Plaintiffs are not entitled to decree for recovery of khas possession in terms of prayer (d) of the plaint. The Plaintiffs are not entitled to decree in terms of prayers (f) and (g) of the plaint.

Mr. Gupta does not press the alternative prayers (gg) and (h), but has submitted that if this Court is against the Plaintiffs then he will ask for prayer (gg) without prejudice to the rights of the Plaintiffs as stated in para. 33 of the plaint. I cannot pass a decree ''without prejudice''. So, with regard to the alternative prayers asking for a decree at the rate of Rs. 293 per month, which is the rate of rent per month under the lease of 1908, I shall pass a decree for rent against the Defendants at the rate of Rs. 293 per month from March 1965 till the date of the decree. It is not necessary to answer prayers (h), (i) and (j). With regard to prayer (k), namely, costs of the suit, the general rule is that successful party is entitled to costs unless he is guilty of misconduct or there is some good cause for not awarding costs to him and cost shall follow the event. There, is no reason why I shall otherwise order in the instant case. The case has been argued on all, possible points for several days. Mr. J.N. Roy with his learned juniors has assisted this Court very ably. Mr. Gupta for the Plaintiffs was also very lair in his argument. The Plaintiffs have lost on all the issues which were contested. Real contest is made on behalf of the Receiver by Mr. J.N. Roy. In the premises, I shall only allow costs of the suit to the Defendant No. 3, the, Receiver. The Plaintiffs, will pay costs to the Receiver. Other parties will pay and bear their own costs.

Certified for two counsel.