Jenkins, C.J:— This appeal arises out of a suit instituted in the first Court of the Subordinate Judge of the 24-Parganas to recover possession of immoveable property in Bhowanipore, known as 7, Russa Road.
The Plaintiffs are the Receivers of the estate of the late Gopal Lal Seal, and the contesting Defendant and sole Appellant to whom I will hereafter refer as the Defendant) is Haji Cassim Mamooji.
The plaint includes a prayer for a declaration that a lease executed by Nayan Manjari Dassi, one of Gopal Lal Seal's two co-widows, is void and inoperative.
The Defendant on the other hand maintains that he has a good title to the premises as their permanent tenant and contends that in any case the Plaintiffs are not competent to bring this suit. I will first give a short narrative of the events that led up to the appointment of the Plaintiffs as Receivers of Gopal Lal Seal's estate.
Gopal Lal Seal, who was admittedly the owner of the property in suit, died on the 25th of May 1907, without issue, but survived by his two widows, Kumudini Dasi and Nayan Manjari Dasi, who thus became his heiresses in the absence of a testamentary disposition. On the 15th of June 1902 Kumudini applied for letters of administration to the estate of her deceased husband. The application was opposed, and was numbered as suit No. 9 of 1902.
On the 21st of July, Gopal Lal Seal's mother and another propounded an alleged will of the deceased, and their application being opposed was numbered as suit No. 11 of 1902. Mr. Donogh was appointed administrator pendente lite in suit No. 11 of 1902, but in August 1903, probate was refused and so his appointment terminated. In the same month Mr. Belchambers was appointed administrator pendente lite in suit No. 9 of 1902.
On the 8th August 1906 Nayan Manjari commenced suit No. 666 of 1906 against her co-widow. It was afterwards numbered 427 of 1907.
By this suit Nayan Manjari sought a declaration that she was entitled to a half share in the estate of Gopal Lal Seal for the estate of a Hindu widow, and prayed that the properties might be partitioned and her share allotted to the Plaintiff.
On the 29th January 1908 suit No. 9 of 1902 was withdrawn, and Mr. Belchambers, the administrator pendente lite, was discharged. On the same day a decree was passed in suit No. 427 of 1907 and thereby Messrs Shamal Dhone Dutt and Norendra Lal Dey were appointed Receivers of the moveable property and the rents, issues and profits of the immoveable property belonging to the estate of Gopal Lal Seal.
By an order of the 8th January 1910 in suit No. 427 of 1907 the present Plaintiffs, Mr. P. Choudhuri and Mr. K.B Dutt, were appointed Receivers in the place of Mr. Haider who had succeeded Messrs Dutt and Dey in that office with all the powers provided under Order XL, rule 1, clause (d) of the Civil Procedure Code subject to certain exceptions not material to this case, and it was further ordered that the Receivers should have power to bring and defend suits in their own name and also should have power to use the names of the Plaintiff and the Defendant who were to be indemnified out of the estate and effects of the intestate.
On the 25th of October 1911 this suit was instituted and on the 22nd March 1912 an order was made in suit 427 of 1907 that the Receivers be at liberty to continue the present suit.
It is in these circumstances that the Plaintiffs claim that they are competent to maintain this suit. But before I deal with this point, I will explain the Defendant's relations with the property.
As far back as 1893 the Defendant became a tenant of the property, and though a difficulty was experienced in obtaining a formal lease, this at length was granted for a term of 15 years to expire in November 1908. The person named as lessee was Ismail Khan Mohammed, but it has been accepted by both sides before us that he was a benamdar for the Defendant Haji Cassim Mamooji.
But though this tenancy terminated on the 15th November 1908, the Defendant claims to be a permanent tenant under a lease of 16th September 1906 which purports to be executed by Nayan Manjari Dasi. It is the Plaintiffs' case that this lease is invalid, and so it is that they claim to be entitled to recover possession. First, then I will consider the Plaintiffs' right to sue in their own names.
Ordinarily no doubt a suit to recover possession of property can only be brought by him in whom there is a present title to it, and by his appointment no property becomes vested in a receiver.
But this rule, like all others, is subject to modification by the Legislature and the only question for our consideration is whether in India there has not been such a modification in favour of a receiver.
It is profitless to discuss the English cases on the subject or to seek for guidance from American decisions; in England there is no such statutory rule as there is here, and I have no means of ascertaining what the American law is.
Moreover, there is ample material in Indian enactments and authorities to afford a clue to the solution of the problem propounded. Originally a Receiver could not sue; this is shewn by the decision of Phear, J., in Wilkinson v. Gangadhar Sirkar(1). That decision was in 1871. In 1877, however, was passed the Civil Procedure Code of that year, and in it was contained the provision which now finds a place in Order XL, rule 1, of the present Code (see sec. 503 of the Code of 1877). The present Code empowers the Court to confer upon a Receiver all such powers as to bringing and defending suits as the owner himself has.
This provision is shewn by decisions in Calcutta, Madras and Bombay to have been understood by those Courts as authorising suits by Receivers, and though I am not aware of airy judgment in Allahabad to the same efftct, I have not met with any decision in a contrary sense. The words of Order XL, rule 1, warrant this view, and I see no reason for putting a narrower construction on the words, or for Holding that they do not empower Receivers to bring a suit for recovery of possession of immoveable property even though it may involve the setting aside of a voidable instrument executed by one of the owners who thereby purports to deal with the entire interest.
The co-widows of Gopal Lal Seal are the present owners, of the property: and the suit in which the Receivers' have been appointed comprises that property. The Receivers therfore are as competent to bring this suit as the widows would have been. It is true, they did not get leave to institute this suit in suit No. 427 of 1907. This omission may have consequences adverse to them in that suit, but it cannot affect their power to bring this suit, nor has any reliance been placed on this omission before us.
The next point that calls for consideration is whether the instrument of the 16th September 1906 furnishes the Defendant with an answer to the Plaintiffs' claim for possession.
If it was a valid document, it would, for it purports to create a permanent tenancy in the Defendant's favour. Its validity, however, has been attacked on many grounds. Thus it is said (1) that Nayan Manjari, the sole executant, was of unsound mind-, (2) that at any rate she was an illiterate pardanashin lady of weak intellect whose execution of the lease was procured without explanation to her of its terms or comprehension by her of its effect, (3) that at the time of its execution Mr. Belchambers was administrator pendente lite, and that she had no interest in or power over the property, and (4) that her interest in the property did not extend beyond a half share.
On all these points the Sub-Judge has come to a conclusion adverse to the Defendants against whom he has passed the decree from which the present appeal has been preferred.
First, then, I will deal with the plea of Nayan Manjari's insanity. This unhappy lady's predicament has been so constantly before the Court in the several litigations in which she is involved that it is particularly necessary that we should be on our guard not to import into this case knowledge derived from other sources, and to see that our decision is based only on the materials afforded by the record in this suit.
The issue for determination is whether Nayan Manjari was of unsound mind on the 16th September 1906.
We start with this that Nayan Manjari is admittedly now of unsound mind.
She was found to be of unsound mind in proceedings under Act XXXV of 1858 instituted as far back as November 1906. By his order in those proceedings of the 24th September 1907 the District Judge of the 24-Parganas held that there could be no reasonable doubt that she was of unsound mind and incapable of managing her affairs. The Act however contemplates only the question of lunacy or sanity at the time of the enquiry; there is no provision in it that the enquiry shall extend in the ascertainment of the period at which the alleged lunatic first became of unsound mind: Bodhnarain Singh v. Omrao Singh(2). So the finding of the learned District Judge does not carry us back further than the enquiry which commenced in November 1906; so notwithstanding the result of that enquiry the burden still rests on the Plaintiffs of showing that she was of unsound mind on the 16th of September 1906. The learned Judge was satisfied that this burden was discharged and his estimate of the evidence on this point must necessarily carry great weight with us on appeal. It may, I think, be fairly said here, as it was in the Privy Council decision I have cited, that the burden becomes of a much lighter character when we find that the enquiry which resulted in the adjudication of lunacy supervened within two months of the critical time, the date of the execution of the lease. There is no reason to suppose that this unsoundness of mind could be fairly attributed to anything that occurred in the interval. On the contrary we find the lady's mental condition called in question, though unsuccessfully, as far back as 1892. But more significant of the estimate formed in the family of her previous mental condition is the application on the 14th of July 1906 preferred by her two paternal uncles under Act XXXIV of 1858. This apparently was rejected simply owing to their failure to procure a medical certificate in support of their allegations — a failure due, no doubt, to the fact that she was then residing in the house of her maternal uncle, Kuchil Lal Sen, in Muktaram Babu's Street. Kuchil Lal Sen who had every opportunity of knowing Nayan Manjari's mental condition has deposed before the Sub-Judge that in July and September 1906 it was the same as in July and September 1907, and on this the learned Judge relied as he certainly was entitled to do, and I say this, notwithstanding the contention before us, that Kuchil was entrapped into this statement. In addition to this there is the evidence of Gour Mohun Dey, the brother of the co-widow Kumudini. He deposes to her insanity from 1903. His evidence is undoubtedly open to criticism, and the learned Judge does not expressly refer to it, so that it would be safer not to attach any great weight to it.
The Sub-Judge was obviously not impressed with the evidence by which it was sought to prove Nayan Manjari's sanity at the date of the lease and on this I am in full agreement with him. In so saying I do not forget that in the course of the argument before us, we were repeatedly reminded of the part taken by the Registration clerk, but I attach little or no importance to it. The Sub-Judge therefore was (in my opinion) justified in his conclusion that it is clear that in September 1906 Nayan Manjari was of unsound mind and incapable of managing her affairs.
But if she was of unsound mind then, it is conceded, in view of the interpretation placed by the Privy Council on the Contract Act, that the lease was void. If our decision were final, this would be sufficient for the disposal of this appeal; but as the case may go further, it is right that I should discuss it on the hypothesis that lunacy on the critical date was not established. Tarakant Banerjee v. Puddomoney Dossi(3): This therefore I will proceed to do, though it must not be supposed that in so doing I feel any doubt as to the Sub-Judge's conclusion on the question of Nayan Manjari's sanity. Nayan Manjari on the 16th September 1906 was a pardanashin illiterate lady, apparently with no knowledge of English, and even if, as I assume for the present purpose, she was not a lunatic, she undoubtedly was of weak intellect. And yet it is to her that the Defendant went for his permanent lease, though there was an administrator pendente lite, Mr. Bel-chambers, and a senior co-widow, a co-sharer ivith Nayan Manjari, as to whose sanity there never had been any question. The evidence further shows that at this time there was a firm of Attorneys acting for Nayan Manjari; still they were not consulted, and the lawyer who is supposed to have represented her in this transaction is Monoje Mohnn Bose, a Police Court pleader. It is clear beyond doubt that this Police Court pleader in no way protected Nayan Manjari, and did not even take the trouble to ascertain the facts necessary for giving her sound advice, nor did Kuchil in any way look after the lady's interests or give her any effective advice. As he himself says, “the transaction was completed in not haste”, such “hot haste” indeed was there that the lease still contains blanks. The evidence that the document was read or explained to her or its contents or purport understood by her is not worthy of credit, and this omission is all the more serious as the document was in English, a language Nayan Manjari is not shewn to have understood. The Sub-Judge on a consideration of the evidence came to the conclusion that the document was not read over and explained to Nayan Manjari; that she did not know what she was doing, but executed the lease without knowledge of its contents and that she had no independent advice.
In my opinion this contention is justified by the evidence and I agree with it. Even, therefore, if my finding that Nayan Manjari was insane be not accepted, still the transaction is one which cannot stand.
It has however been argued that apart from lunacy the transaction would be voidable and not void, and therefore, it is urged, it could not be avoided by any one but Nayan Manjari and in a suit to which her manager was a party. I am not aware of any case in which it has been directly discussed and determined whether such a transaction is void or voidable, but in Lala Mahabir Prosad v. Musst. Taj Begum. Privy Council Appeals Nos. 56 and 57 of 1913, Lord Moulton delivering the judgment of the Privy Council in a case where the bond of a pardanashin lady came in question said, “It follows therefore that as against the present Appellants it must be taken that the terms of the mortgage bond were extortionate and that the lady, the mortgagor, did not understand the effect of the deed by reason of its not having been adequately explained to her. The deed is therefore void and cannot be enforced against her.”
It is argued before us that Lord Moulton's remarks were not directed to the distinction between a deed that was void and one that was voidable, and that therefore they must not be read too literally. In the absence of a more searching argument than that addressed to us I must refrain from expressing any definite opinion on the question whether the deed of a pardanashin woman is void or voidable, or whether each case must not depend on its own peculiar circumstances. And I am the more impelled to this course, for, in the view I take and have already expressed, the Receivers are competent Plaintiffs even if the lease is not void but voidable. It is sufficient for the purpose of this case to hold, as I do, that the evidence does not satisfy me that the lease on which the Defendant relies was explained to the lady or understood by her.
Therefore the Defendant has failed to discharge the burden of proof that lay on him, and the Receivers are entitled to rely on this defect in his proof whether the lease be void or voidable. I do not overlook the argument that if the lease is only voidable, the suit is incompetent in the absence of the manager. It is contended that to avoid the transaction the manager is or should ordinarily be a party where a transaction is sought to be avoided on the ground of lunacy; but on the hypothesis with which I am now dealing, the lease is impugned on the ground not of the lady's lunacy, but of the inadequate protection of a pardanashin lady. Moreover even if a lunatic's manager can sue, still there is no established rule of practice in this High Court that requires suits relating to the lunatic's property to be brought by him and not by the lunatic.
On the contrary the Code of Civil Procedure contemplates suits by persons of unsound mind whether so adjudged or not (see Order XXXII, rule 15 and Appendix A “Descriptions of parties in particular cases”). It is true that a person so incapacitated has to sue by a next friend; but a next friend is not a party, and the absence of a next friend in this suit is immaterial. In any case the objection is one of pure technicality and it cannot be suggested that the absence of the manager has affected the merits of the case. And sec. 99 of the Code provides that no decree shall be reversed or modified for error or irregularity not affecting the merits or jurisdiction. To sum up, then, this appears to me to be a peculiarly gross case of overreaching a lady who was in a special degree in need of advice and protection. I have already expressed my opinion that she was of unsound mind at the date of the lease. If I am wrong as to that, still it can hardly be denied that her mind was seriously unbalanced. In this transaction, she received no advice and no protection, and in place of her ordinary attorneys, an uninformed Police Court pleader professed to act of her. No explanation is forthcoming why the Defendant should have gone to her for the lease, and not to the administrator pendente lite or the senior and apparently sane co-widow, and in the absence of explanation the course pursued is eminently calculated to excite suspicion. And over and above all this the transaction was one of grave and obvious improvidence.
I therefore hold that the lease on which the Defendant relies has created no title in him which bars the Plaintiffs' right to possession, though they only sue as Receivers appointed by the Court. It was some what feebly suggested in the course of the Appellant's opening that certain Small Cause Court proceedings estopped the Plaintiffs from denying that the Defendant was a monthly tenant and so entitled to notice to quit. But the Defendant declines to be treated as a monthly tenant, and when the Vakil for the Respondent proposed to deal with this point in the course of his argument, he was stopped by his opponent who said he did not press it. I therefore need not deal further with this plainly unsustainable plea. No other argument than those with which I have dealt was advanced as affording an answer to the Plaintiffs' claim for possession.
The result then is that the Plaintiffs have (in my opinion) been rightly awarded a decree for possession. They are also entitled to the mesne profits which have been decreed subject to a small reduction of Rs. 63; the sum accepted by both parties as representing the brief period during which mesne profits would not be payable. The Plaintiffs had filed a cross-objection as to the amount awarded in respect of mesne profits, but they were out of time, and were abandoned without our being asked to excuse the delay. The only topic that remains for consideration is the direction as to the new rooms alleged to have been constructed by the Defendant. This has been left for determination in execution. But this is a survival of a procedure frequently condemned and no longer countenanced. It was a device commonly employed for the purpose of showing a more satisfactory return of work, but is not now sanctioned. The question involved is one that must be decided in the suit before a decree is passed and both sides agree to our sending down an issue for the purpose of arriving at a final decision. We therefore send down the following issues:— What structures were erected by Defendant No. 2 on the land in suit prior to the 15th of November 1908? A description should be given of the structures so created distinguishing such of the structures as come within clause 10 of the lease. Both parties will be at liberty to adduce evidence on this point, and the return to this Court should be made in four months. When the return is made, we will dispose of the whole case and will deal with the question of interest on the Government papers in respect of which a claim is made by the Appellants.
N.R
Chatterjea, J.:— I agree.