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Thakur Akheysingh v. Mahaveerchand

Rajasthan High Court

Feb 8, 1952

Judgment

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Court Opinion Summary

Factual and Procedural Background

The plaintiff, Mutha Sumer Chandji (now represented by Mahaveer Chand and Shanti Chand), relied on a registered lease deed executed by Durjan Singhji on Besakh Sudi 10, Smt. 1997 (corresponding to 6 May 1941). By that deed two villages — Lavera Chhota and Kajnau Bari — were leased to the plaintiff for 24 years. The plaintiff entered into possession in July 1941 but was dispossessed in February 1942 when the Thikana was taken under the Court of Wards. After the Thikana was released from the Court of Wards and possession returned to the jagirdar, the plaintiff instituted the suit on 23 November 1943 seeking (a) restoration to possession of the two villages, and alternatively (b) a decree for Rs. 35,000 with a charge on the villages.

The Additional District Judge, Jodhpur, awarded the plaintiff Rs. 18,006 and dismissed the claim for possession. The defendant appealed to the High Court of the former State of Jodhpur; the High Court allowed that appeal, set aside the District Judge's decree, and decreed possession to the plaintiff for a period of 23 years and 3 months in accordance with the deed. Thakur Akhey Singh, as representative-in-interest of the defendant, appealed to the Supreme Court under Ordinance No. XL of 1949 and Ordinance No. XII of 1950. The present opinion resolves that appeal.

Legal Issues Presented

Whether the plaintiff's claim was a suit for specific performance requiring a specific averment of readiness to perform on the part of the plaintiff.
Whether compensation in money would have been an adequate relief (i.e., whether the contract was one for which specific performance is inappropriate because pecuniary compensation would be adequate).
Whether the doctrine of "legal necessity" applied to validate the lease (i.e., whether there was any legal necessity for the lease and whether that doctrine, which governs alienations by kartas in joint Hindu families, has application to jagirdari lands).
Whether a jagirdar (holder of a scheduled jagir) is competent to execute a lease that will inure after his death — in particular whether a lease granted by a jagirdar may remain valid after the lessor's death subject to statutory limits.
Whether the High Court was correct in decreeing possession to the plaintiff for a period of 23 years and 3 months (whether the lease term could be extended to account for the period of dispossession so that the lessee effectively obtains more than 24 years from the date of the lease).

Arguments of the Parties

Appellant's Arguments

The suit was effectively one for specific performance, and the plaintiff therefore should have specifically pleaded that he was ready and willing to perform his contractual obligations; failure to so plead requires dismissal.
The contract was one for which monetary compensation was an adequate remedy, so specific enforcement (possession) was not appropriate.
There was no legal necessity for entering into the lease (invoking the doctrine of legal necessity).
The jagirdar (lessor) was not competent to make a lease that would inure beyond his lifetime — the grant of a scheduled jagir being a lifetime grant and succession being governed by renewal by the ruler.

Respondents' Arguments

The lease had been performed in the sense that the lessee had been put into possession soon after the lease was executed; the present suit therefore rests on the plaintiff's title derived from the lease, not on a prayer for specific performance.
The lease contained a contractual term that if the lessee's possession were disturbed, the term of the lease would be extended so the lessee would be entitled to remain in possession for the full 24 years — and this term entitled them to the period claimed by the High Court.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded through a sequence of legal determinations tied closely to the facts and statutory framework expressly cited in the opinion.

Nature of the suit: The court rejected the characterization that the suit was for specific performance. It found on the evidence that the lessee had been placed in possession soon after execution of the lease and thereby the contract was performed so far as delivery of possession was concerned. The dispossession resulted from the Court of Wards taking over the Thikana, not from any failure by the lessor to perform. Consequently, the suit is a title-based action grounded in the lease (including a lease term that addressed disturbance of possession), not for specific performance ab initio.
Doctrine of legal necessity: The court examined whether the doctrine of "legal necessity" (a doctrine applied in contexts such as alienations by kartas in joint Hindu family property) applied to jagirdari lands. It reviewed the Marwar legislation (Act No. XL of 1949) — particularly sections 182–195 — and concluded the scheduled jagir was not joint family property; succession to a scheduled jagir is by primogeniture and subject to recognition and renewal by the ruler. Because the jagir was not joint-family property and sons had no birthright interest, the doctrine of legal necessity did not apply; the court therefore did not need to inquire further into whether any particular legal necessity existed in the facts of the lease.
Capacity to execute leases that inure after death: The court analyzed sec. 192 of the Marwar Land Revenue Act, 1949, which permits a jagirdar to grant a lease or ijara not exceeding 24 years. It observed that sec. 183 makes grants of scheduled jagir for the lifetime of the holder, but there is no express prohibition that a lease may not continue after the lessor's death so long as it does not exceed the statutory maximum term. The court fortified this reading by citing the Bhoglawa Rules of 1914 and their 1915 amendment (as published in the Marwar Gazette), which effectively forbade transfers of usufructuary nature beyond 24 years and treated mortgages/transfers for up to 24 years as valid and subsisting during that term even if the mortgagor/transferor died within it, with reversion thereafter to the mortgagor's heir. The court concluded that, correspondingly, a lease granted by a jagirdar is valid for its stipulated term even if the lessor dies within that term, subject to the 24-year statutory cap.
Computation of lease period and enforceability of an extension clause: The court held that because the lessee had been put into possession soon after the lease was executed, the 24-year lease period began to run from the date of the lease (6 May 1941). Although the lease contained a clause providing for extension of the term if possession were disturbed, the court concluded that giving effect to that clause by adding the period of dispossession to the lease term would allow an effective term in excess of 24 years, which the statute forbids. The interruption of possession by the Court of Wards does not stop the running of the lease period, although the lessee may be entitled to damages for the period of disturbed enjoyment and to the remaining period of the lease. Therefore the lease extension clause could not operate so as to extend possession beyond the statutory 24-year maximum.
Remedy and adjustment to the High Court decree: Applying the foregoing principles, the court found the High Court erred in granting possession for 23 years and 3 months counted in the way the High Court had done; instead the correct calculation is that the total period of possession enforceable under the lease is twenty-four years in all beginning from the date of the lease (6 May 1941). The court thus amended the decree accordingly.

Holding and Implications

Holding: The Supreme Court PARTLY ALLOWED the appeal. It held that:

DISPOSITION: The period for which the High Court had granted possession was reduced so that the lessee's entitlement equals twenty-four years in all, beginning from the date of the lease (6 May 1941).
The balance of the appeal was dismissed; in other respects the High Court's decree stands as amended.
The respondents were awarded the costs of the appeal; costs of the two courts below were left to be as directed by the High Court.

Implications: The direct consequence is an amendment of the High Court's decree so that the enforceable possession period does not exceed the statutory maximum of twenty-four years measured from the lease date. The opinion applies statutory interpretation of the Marwar Land Revenue Act and contemporaneous local rules (Bhoglawa Rules) to determine that a jagirdar may create a lease valid for a fixed term that continues to run even if the lessor dies within that term, but that no device (such as a clause to extend the duration to compensate for dispossession) may effectively result in a term exceeding the statutory cap. The opinion does not purport to lay down any broader novel precedent beyond these applications of the statutory scheme; its practical effect is limited to amendment of the decree between the parties.

Show all summary ...

Wanchoo, C.J:— This is an appeal by Thakur Akhey Singh against the judgment and decree of a Division Bench of the High Court of the former State of Jodhpur. It has come before us for hearing under the provisions of Ordinance No. XL of 1949 and Ordinance No. XII of 1950. The appellant is the representative-in-interest of the defendant in the suit.

2. The suit was filed by Mutha Sumer Chandji, who is now represented in this appeal by his successors Mahaveer Chand and Shanti Chand. The case of the plaintiff was that Durjan Singhji, the father of the original defendant Sanwat Singh, had executed a registered deed of lease on Besakh Sudi 10, Smt. 1997 corresponding to 6th of May, 1941, in favour of the plaintiff. By this deed, Durjan Singhji leased out two villages, namely, Lavera Chhota, and Kajnau Bari, to the plaintiff for a period of 24 years. The plaintiff came in possession of the villages in July 1941, but the Thikana was taken under the Court of Wards in February, 1942, and therefore, the plaintiff was dispossessed from these villages. Later the Thikana was released from the Court of Wards and came in the possession of the jagirdar. Thereafter, the present suit was filed on the 23rd of November, 1943 and it was prayed that the plaintiff be put in possession of the two villages. In the alternative, it was prayed that in case it was found that the plaintiff was not entitled to possession of the two villages, a decree for Rs. 35,000/- be passed in his favour according to the terms of the deed of lease, and a charge of the decree should be created on the two villages.

3. The suit was resisted by the defendant on a number of grounds and eventually the Additional District Judge. Jodhpur gave a decree for Rs. 18,006/- to the plaintiff and dismissed the suit for possession. Thereupon, there was an appeal to the High Court of the former State of Jodhpur by the defendant. That appeal was allowed and the decree of the District Judge was set aside and the suit was decreed in the plaintiff's favour by putting him in possession of the two villages for a period of 23 years and 3 months in accordance with the terms of the deed of lease. The present appeal is against this decree.

4. The contention on behalf of the appellant is that this was a suit for specific performance and it was the duty of the plaintiff to allege specifically in the plaint that he was prepared to perform his part of the contract, and inasmuch as he did not do so, the suit is liable to be dismissed. It was further urged that this was a contract for the non-performance of which compensation in money was an adequate relief and the act agreed to be done was such that pecuniary compensation for its non-performance would afford adequate relief and could easily be had. Finally, it was urged that there was no legal necessity for entering into a contract of this nature and that in any case the jagirdar was not competent to make a lease which would inure beyond his life-time.

5. So far as the first two points are concerned, we are of opinion that they do not arise in this case. It is, in our opinion, incorrect to call this a suit for specific performance of a contract. It is clearly proved on the evidence that the lessee came into possession of the two villages soon after the lease was executed and remained in possession for a few months when he was dispossessed by the Court of Wards which had taken over the Thikana. Therefore, the contract in this case was performed and the lessee was dispossessed because of certain provisions of the law in the former State of Jodhpur relating to Court of Wards. The present suit was filed after the Thikana was released from the Court of Wards and had come back into the possession of the jagirdar, and the jagirdar (the lessor) had failed to return the possession to the lessee. This is, therefore, a suit based on the title of the plaintiff which he derives from the lease in his favour. One of the terms in the lease specifically provides that if the possession of the lessee is disturbed, the term of the lease would be extended and the lessee would be entitled to remain in possession for a full period of 24 years and can recover possession through court. The suit has been filed in accordance with this term in the lease and is not a suit for specific performance of the contract which had, in fact, been performed by Durjan Singhji when the lessee was put in possession soon after the lease had been executed. There is, therefore, no force in the first two points raised on behalf of the appellant, and it is not necessary to consider the case law that was cited in support of those two points.

6. Now we come to the other two points raised on behalf of the appellant, namely, that there was no legal necessity for the lease, and that in any case the jagirdar was not entitled to execute a lease which would inure after his death. The two points are allied and may be taken together. The term ‘legal necessity’ is well known in law and applied to cases of alienations by kartas in joint Hindu families. We have, therefore, to see what the nature of the jagirdari Law is, in order to decide whether any question of legal necessity arises at all in this case. The law relating to land revenue etc. was consolidated by Act No. XL of 1949, and Chapter X thereof deals with jagirdari lands. We are referring to this Act because, though it came into force in 1949, learned counsel are agreed that the law even at the time when the lease was executed was the same. The jagir in question is a scheduled jagir and under sec. 182 of the Act, succession to it is governed by the rule of primogeniture. By Sec. 183, the grant is confined to the lifetime of the holder and no person is entitled to succeed to such jugir until his succession is recognized and the grant is renewed in his favour by His Highness. Sec. 184 provides that subject to His Highness pleasure, the grant of a scheduled jagir, on the death of the holder, shall be renewed in favour of the person entitled to succeed him in accordance with the provisions of the Act. Sec. 191 provides that no jagir shall be transferable except to the extent provided in this Act. Sec. 192 permits the jagirdar to grant a lease or ijara of the estate or any part thereof, provided the period of such lease does not exceed 24 years. Sec. 195 permits the bolder of a scheduled jagir to assign a part of the jagir to a lineal male descendant of his own or of the previous holder who does not succeed to the jagir, provided that the part so assigned shall be a reasonable share necessary for maintenance of the assignee. These provisions of the law clearly show that the jagir was not joint family property and the sons of jagirdar had no interest in it by birth. Under these circumstances, we are of opinion that the doctrine of ‘legal necessity’ does not apply to this case and it is not necessary therefore, to consider whether in fact there was any legal necessity for making the lease in dispute.

7. The next question then is whether a jajgirdar is competent to execute a lease which would inure after his life-time. In this connection, reference may be made to sec. 192 of the Marwar Land Revenue Act of 1949 (Act, No. XL of 1949) which permits the jagirdar to grant a lease of the estate or any part thereof for a maximum period of 24 years. Learned counsel urges that as under sec. 183, all grants of the scheduled jagira are for the life-time of the holder, the jagirdar cannot create a lease which will inure after his death. There is, however, no prohibition in the Act against such lease provided they are not to extend for more than 24 years. If the intention was that a lease, whatever may be its term, would come to an end when the lessor dies, it would have been very easy to provide for it by adding a proviso to sec. 192. This view is enforced by a reference to Bhoglawa Rules of 1914 which appear in Marwar Gazette dated 17th October 1914 at page 17. Reference may be made to Rule 8, which says that the jagirdar would be permitted to mortgage his land for more than 20 years and it would be a condition of the mortgage that after the period, of 20 years is over, the land would revert to the mortgagor or his heir free of all encumbrance. This rule was amended in 1915 and the amendment appears in the Marwar Gazette of 2nd October, 1915 at page 14. By this amendment, all kinds of transfers of usufructuary nature were forbidden beyond a term of 24 years, and it was provided that after the period of 24 years was over, the land would revert to the mortgagor or to his heirs and the encumbrance would be wiped out. This rule, therefore, makes it obvious that the jagirdar could make a mortgage for a period of 24 years as the maximum, and if he died within this period the mortgage would remain valid after his death for the stipulated period and his heirs would get back the property thereafter. The law is admitted to be the same for leases. It follows, therefore, that a lease like the one in dispute would remain valid after the death of the lessor if such death takes place within the term of the lease. It must, therefore, be held that the lease did not come to an end at the death of the lessor, namely, Durjan Singhji.

8. We now come to the last question, namely, whether the High Court was right in giving a decree for possession to the respondents for 23 years and 3 months. The contention on behalf of the respondents is that there was a term in the lease which provided that if the possession of the lessee was disturbed, the term of the lease would be extended and the lessee would be entitled to remain in possession for the full period of 24 years. On the other hand, learned counsel for appellant contends that this term being against the law could not extend the period beyond 24 years from the date of the lease. We have already held that the lessee came into possession and the period of lease began to run. The law in Marwar with respect to jagirs as we have already mentioned, is that no jagir is “transferable except to the extent provided”. (See sec. 191 of the Marwar Land Revenue Act, 1949 Act No. XL of 1949). Further, the law also provides that a jagirdar may grant a lease or ‘ijara’ and the period of such lease shall not exceed twenty-four years. (See sec. 192).

9. The lessee having been put in possession in this case soon after the lease was executed, the lease began to run. The fact that the lessee's possession was disturbed and he remained out of possession for a number of years would not interrupt the running of the period of the lease, though the lessee may have a right to claim damages for the period during which his quiet enjoyment was disturbed and claim possession of the property for the remaining period of the lease. If we were to allow the lessee to add the period during which he remained out of possession to the period mentioned in the lease, it would mean that we would be indirectly allowing the lease to run for a term of more than twenty-four years which is expressly forbidden by the law. We are, therefore, of opinion, that even though there is a term in the lease to this effect, that term cannot be enforced so as to extend the period of the lease beyond twenty-four years. In this view of the matter, the High Court was not right in granting a decree for possession for the period of 23 years and 3 months to the respondents. It should have only granted a decree for possession for the remaining period of the lease. The decree of the High Court, therefore, will have to be amended accordingly.

10. We, therefore, partly allow the appeal and reduce the period for which the High Court has granted possession to the period of twenty-four years in all, beginning from the date of the lease, namely, the 6th of May, 1941. In other respects, the appeal is dismissed. As the appeal has, for all practical purposes, failed, we allow the respondents the costs of the appeal. Costs of the two courts below will be as directed by the High Court.