Login
  • Bookmark
  • PDF
  • Share
  • CaseIQ

Parmod Banabihari v. C.G. Atkins

Patna High Court
Mar 27, 1919
Important Paras
Please sign up to view Important Paras.
Smart Summary (Beta)

Concise Analytical Summary of the Opinion

Factual and Procedural Background

This appeal arises from a judgment of the Subordinate Judge of Monghyr. The suit was instituted by Rani Ranjit Kuer in her capacity as shebait of a family idol. The plaintiff sought a declaration that 75 bighas 11 kathas 1 dhur of land in Mauza Narayanpur was khudkasht land of the malik, that the defendants (partners of a concern known as Daulatpur Factory) had not acquired a right of occupancy in that land, and for khas possession.

Key factual points in the record (as pleaded or proved in the trial court) are:

  • Village Narayanpur was purchased by Mt. Ram Kuari from her separate funds and was, according to the plaintiff, dedicated to a family idol sometime in "1237" (as stated in the pleading). A copperplate purporting to record the original grant was produced.
  • The Narhan Estate was recorded in land records as proprietor of the mauza. The Court of Wards had long treated the mauza as part of the estate and only released it upon discovery of the copperplate in about July 1912.
  • Rani Ranjit executed a fresh deed in favour of the idol on 1 September 1914; there was contestation whether this was a fresh grant or confirmation.
  • The plaintiff served a notice to quit on 1 April 1915 which the defendants disregarded. The suit was filed on 24 January 1916.
  • The last lease in favour of the defendants expired in 1905; defendants remained in possession without a lease thereafter up to the suit.

Legal Issues Presented

  1. Whether the plaintiff's suit is barred by the special rule of limitation under the Bengal Tenancy Act, in light of the Full Bench decision in Janki Singh v. Jagannath Das.
  2. Whether the idol (as a donee of a private endowment) had a valid proprietary title enabling it to maintain a suit in ejectment — i.e., whether the dedication (copperplate) created an effective private endowment.
  3. Whether the lands in dispute are "proprietor's private land" within the meaning of the Bengal Tenancy Act (Sections 20, 21, 116 and 120), and thus whether a right of occupancy could or could not accrue to the defendants.
  4. Whether a firm or concern (such as the Daulatpur Factory) is capable of acquiring a right of occupancy under the Bengal Tenancy Act.
  5. Whether, in the circumstances, the defendants' post-lease possession (after expiry in 1905) amounted to holding under a lease from year to year (i.e., whether a holding-over presumption operated to preserve non-accrual conditions).

Arguments of the Parties

Appellant / Plaintiff (Rani Ranjit Kuer) — Principal contentions

  • The village had been purchased by Mt. Ram Kuari from her separate funds and dedicated to the family idol; therefore the income and land were for the idol and should be treated as such.
  • The plaintiff maintained that the mauza in the possession of the defendants is the khudkasht (zerait) land of the malik and that the defendants had not acquired any right of occupancy.
  • The plaintiff relied on documentary evidence including the copperplate and on a fresh deed executed by Rani Ranjit on 1 September 1914.

Defendants (Daulatpur Factory) / Defence arguments (as presented by counsel)

  • Counsel for the defendants (Mr. Manuk) argued that under Sections 20 and 21 of the Bengal Tenancy Act a right of occupancy would accrue to the defendants unless it could be established either (a) that the land was actually cultivated by the proprietor himself with his own stock and servants or hired labour for twelve continuous years immediately before the passing of the Bengal Tenancy Act, or (b) that the land is recognized by village usage as proprietor's private land and is held under a lease for a turn of years or from year to year.
  • On legal construction, Mr. Manuk maintained that Section 120 of the Bengal Tenancy Act provides a convenient definition but that Section 116 is the substantive provision dealing with non-accrual of a right of occupancy and requires proof that the land is actually held under a lease for a term of years or from year to year.

Counsel for the Plaintiff (Mr. L. N. Sinha) — Responses

  • Argued that a tenant who continued in possession after expiration of a lease should be presumed to have held over on the same terms (i.e., effectively held under a lease from year to year), which could preserve non-accrual.
  • Relied on two specific circumstances to support proprietor's private land status: (i) a patta granted by Babu Parmeshwar Narain Singh on 11 February 1872 and a letting by Poshat Jha to Daulatpur Factory on 27 March 1873 for cultivation; and (ii) an admission by the defendants that the land is the zerait of the malik.

Concession by Appellant's Senior Counsel / Procedural concession

  • The learned vakil for the appellant conceded that if the Full Bench decision in Janki Singh v. Jagannath Das was correctly decided, then a suit brought more than six months after the expiration of the lease would be barred under the special limitation rule of the Bengal Tenancy Act.
  • He also noted that the Full Bench decision was then pending before the Judicial Committee, but the court regarded itself as bound by the Full Bench.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Janki Singh v. Jagannath Das (Full Bench) That a suit brought more than six months after the expiration of a lease is barred by the special rule of limitation in the Bengal Tenancy Act (as decided by the Full Bench). The court treated the Full Bench decision as binding; the appellant conceded its applicability. The result is that the plaintiff's suit is barred by limitation under the Bengal Tenancy Act.
Madhab Chandra Bara v. Sarat Kumari Debi In the context of a public endowment: to support a valid public endowment, it must be shown (1) an absolute grant made with intention that properties be applied for the service of the idol, (2) that the properties have been so applied, and (3) that the settlor's family have not treated the property as primarily for their own benefit. The court applied analogous but stricter considerations to a private endowment, concluding the dedication in the present case was nominal because there was no evidence of application of income to the idol and family conduct showed the property treated as estate property.
Cannan, Liquidator Agra and Masterman's Bank v. Kylash Chunder Roy Chowdhry Earlier authority suggesting limits on capacity of firms/persons to be raiyats under older rent legislation (decided under old Rent Acts). The court observed this case was decided under old legislation and that the position has been altered by definitions in the Bengal Tenancy Act; it did not treat the case as dispositive against a firm's capacity to acquire occupancy under the present Act.
Rai Komul Dossee v. J.W. Laidly Earlier observations (under old Rent Acts) concerning capacity to be a raiyat; portions relied on were obiter according to later consideration. The court noted that the reported observations were obiter and not necessary for decision; therefore they do not preclude a firm from acquiring occupancy under the Bengal Tenancy Act.
Laidley v. Gour Gobind Sankar Considered earlier authorities and held that a lease in favour of a firm/concern must be taken to be a lease in favour of the individuals constituting the firm; thus membership continuity matters for occupancy rights. The court applied this reasoning: where the last lease (22 May 1900) was to Daulatpur Factory and nothing showed the original grantees had ceased to be members, the lease must be treated as for the individual members and occupancy could accrue.
Bujrangi Raut v. M.H. Mackenzie Considered Laidley and confirmed its authority; concerned facts where claimants were different from original grantees, affecting applicability. The court said the Bujrangi Raut decision did not shake Laidley and that its facts were different — therefore it had no adverse application to the present case. The court relied on the distinction to conclude defendants could acquire occupancy.

Court's Reasoning and Analysis

The court's analysis proceeds in a sequence: limitation point (dispositive in law), then inquiry into the validity of the endowment/title of the idol, then the statutory tests for proprietor's private land and non-accrual of a right of occupancy, and finally capacity of a firm to acquire occupancy.

1. Limitation: The court began by accepting the concession that, if the Full Bench in Janki Singh v. Jagannath Das was correctly decided, the special rule of limitation in the Bengal Tenancy Act would bar a suit filed more than six months after lease expiration. The court treated the Full Bench decision as binding and accordingly held the suit barred by limitation. Nonetheless, because other points had been argued, the court proceeded to address them.

2. Title of the idol / validity of the endowment: The court evaluated whether the copperplate and subsequent events established a valid private endowment enabling the idol to sue in ejectment. The court applied the principles from Madhab Chandra Bara v. Sarat Kumari Debi (public endowment test) and reasoned that the requirements for a valid private endowment are at least as stringent:

  • A dedication must be real (not nominal) and must show that the grantor divested herself completely of the property.
  • There must be evidence that the income of the endowed property was actually applied to the idol's service and that the settlor's family did not treat the property as one intended chiefly for their own benefit.

The court found no evidence that the income of the village was applied to the idol's maintenance. On the contrary, there was evidence (including from the plaintiff) that Mt. Ram Kuari treated the property as her own, the land remained recorded in the estate's name in the Land Registration Department, and the mode of dealing with the property showed it was regarded as estate property. The court concluded the original endowment was ineffectual and that Rani Ranjit Kuer's subsequent grant (given her status "of the estate of a Hindu mother") could not create a valid title for the idol. Consequently, the court held that the idol could not maintain a suit in ejectment.

3. Statutory tests for proprietor's private land and non-accrual of occupancy: The court examined the statutory scheme (Sections 20, 21, 116 and 120 of the Bengal Tenancy Act as discussed in the arguments). The court identified two relevant routes for preventing accrual of a right of occupancy: (a) demonstration that the proprietor personally (or by family/hired servants) cultivated the land with his own stock continuously for twelve years immediately before passing of the Act; or (b) that the land is recognized by village usage as proprietor's private land and is held under a lease for a turn of years or from year to year.

On the facts, the last lease to the defendants expired in 1905 and the suit was brought in 1916. The court observed the essential condition for non-accrual (continuing lease status) did not appear satisfied. Although Mr. L. N. Sinha argued that holding over would create a presumption of a year-to-year tenancy (which had force), the court found it unnecessary to decide that point finally because, on the merits, the plaintiff failed to establish that the land was proprietor's private land within the meaning of Section 120. Specifically:

  • There was no evidence that the proprietor cultivated the land with his own stock or servants for twelve continuous years immediately before the Bengal Tenancy Act.
  • It was not suggested that village usage recognized the land as proprietor's zerait.
  • Reliance on the 1872 patta and an 1873 letting and on an alleged admission by the defendants was held insufficient — the final published Record of Rights (promulgated after the alleged admission) contradicted the plaintiff's case, and the plaintiff had not discharged the heavy onus to bring the land within Section 120.

Therefore the court concluded the land was not the proprietor's zerait land and a statutory bar to accrual of occupancy had not been shown.

4. Capacity of a firm to acquire a right of occupancy: The court reviewed earlier authorities which had suggested limitations on a firm's capacity to be a raiyat under older Rent Acts. It noted that the Bengal Tenancy Act now defines "raiyat" to include a person who holds land "with the aid of partners" and explicitly includes successors-in-interest. The court relied on Laidley v. Gour Gobind Sankar, which held that a lease in favour of a firm must be treated as a lease in favour of the individual members and that nothing in the present record showed the original grantees ceased to be members of the firm. Bujrangi Raut v. M. H. Mackenzie did not undermine Laidley because its facts differed. On the present facts (last lease in 1900; admission by plaintiffs that original grantees were still members), the court held the defendants had acquired a right of occupancy.

5. Conclusion of analysis: Taking the legal and factual findings together, the court found that (i) the endowment to the idol was ineffective so the idol could not maintain ejectment; (ii) the plaintiff had not proved the land to be proprietor's private land under the Bengal Tenancy Act; and (iii) in any event the defendants (a firm) were capable of acquiring a right of occupancy and had done so on these facts.

Holding and Implications

Holding: The court dismissed the appeal and held that the defendants have acquired a right of occupancy in the land in dispute. The court also held that the idol did not have a valid proprietary title to maintain the ejectment suit.

Implications (direct effects):

  • The plaintiff's claim to declare the land khudkasht of the malik and to recover khas possession failed; the idol could not maintain ejectment because the purported private endowment was not established.
  • The defendants (Daulatpur Factory, being a concern/firm whose members included the original grantees) were held capable of, and to have, acquired a right of occupancy in the disputed land.
  • The appeal was dismissed with costs. Atkinson, J. agreed with the reasoning and conclusion.

The opinion applies and relies on existing statutory definitions and case law rather than purporting to establish a new legal doctrine. The court expressly treated the Full Bench decision in Janki Singh v. Jagannath Das as binding on the limitation point, and it relied on established authorities for the capacity of a firm to acquire occupancy under the Bengal Tenancy Act.

Show all summary ...

Das, J.:— This appeal cornea before us from the judgment of the Subordinate Judge of Monghyr and arises out of a suit instituted by Rani Ranjit Kuer, the present proprietress of the Narhan Estate, as the shebait of an idol, for a declaration that 75 bighas 11 kathas 1 dhur of land, forming part of Mauza Narayanpur, is the khudkasht land of the malik, and that the defendants, as the partners of a concern known as Daulatpur Factory, have not acquired a right of occupancy therein, and for khas possession thereof.

2. The plaintiff's case is that village Naryanpur was purchased by Mt. Ram Kuari, the wife of Babu Ranjit Singh, the then holder of the estate, out of her separate funds, and was dedicated by her to the family idol some time in 1237. The original grant, as contained in the copperplate, has been produced in this case, and it does not appear that it lays down any, rule of succession to the office of the she-bait. According to the plaintiff the income of the village was always appropriated to the use of the idol, although it is admitted that the Narhan Estate always stood recorded as the proprietor of the village in the Land Registration Department. The Court of Wards, who were long in possession of the estate, first on behalf of Babu Barham Narain Singh, then on behalf of his widow Mt. Biseswari Kueri, and lastly on behalf of his mother, the present proprietress, always treated Mauza Narayanpur as part and parcel of the estate, but they released the mauza on discovery of the copperplate, which discovery took place some time in July 1912.

3. On 1st September 1914 Rani Ranjit herself executed a fresh deed in favour of the idol, and there is some contention before us whether this constitutes a fresh grant in favour of the idol or whether it merely confirms the original grant made by Mt. Rani Kueri. The plaintiff's case is that the mauza of which the defendants are admittedly in possession is the khudkasht land of the idol, and that the defendants have not acquired any right of occupancy therein. On 1st April 1915 the plaintiff served on the defendants a notice to quit, which was disregarded by he defendants. On 24th January, 1916 the present action was brought.

4. Now this appeal may be disposed of on a very short point. It is practically conceded by the learned vakil appearing on behalf of the appellant that if the Full Bench of this Court has decided the case of Janki Singh…Defendant v. Jagannath Das…Plaintiff .(1) correctly, then the plaintiff's suit having been brought more thin six months after the expiration of the lease is barred by the special rule of limitation provided by the Bengal Tenancy Act. But he argues that case was wrongly decided and is at present before the Judicial Committee. So far as we are concerned we are conclusively bound by the Full Bench decision and must hold that the plaintiff's suit is barred by limitation. But as various other questions have been argued before us we think it right and proper to deal with them.

5. The first question that arises is what is the title of the idol which enables it to maintain an action in ejectment. The only evidence of an endowment in favour of the idol is a copper plate which was discovered in an iron safe where the late Rani's ornaments were kept but a dedication to be effectual must be real and not nominal, and it must be shown that the grantor completely divested herself of every portion of the property which is the subject matter of the grant. In the case of Madhab Chandra Bara v. Sarat Kumari Debi(2), which was a case of a public endowment it was laid down by their Lordships that to support the case relied on that the lands in suit formed the subject of a valid public endowment it must be established that an absolute grant was in the first place, made with the intention that the properties should be applied for the service of the idol, and that the properties have since been so applied, and that the members of the family of the settlor have not treated the property as one the profits of which were mainly intended to be applied for their benefit. In my opinion the same considerations must apply only with greater force to the case of a private endowment which it must be remembered can be put an end to by the consensus of the family, and the dedication must be held to be nominal when there is no proof of the application of the income of the property endowed for the maintenance of the idol, and when the whole conduct of the parties is inconsistent with the hypothesis of a valid trust.

6. In this there is no evidence that the income of the village was ever applied for the maintenance of the idol; there is on the other hand positive evidence on the record and that from the side of the plaintiff herself, that Mt. Ram Kuari herself treated this property as belonging to her. The property has always stood recorded as I have said before in the name of the estate in the Land Registration Department and the mode of dealing with the property by the parties interested in the endowment shows conclusively that they regarded the property as belonging to the estate. It seems to me that the original endowment was altogether ineffectual ind that the trust in favour of the idol was never brought into existence. If the original endowment was ineffectual then the subsequent grant by Rani Ranjit Koer having the estate of a Hindu mother cannot create a valid title in favour of the idol. It follows therefore that the idol cannot maintain a suit in ejectment. The principal question of fact in this case is: Are the lands, subject-matter of the suit the proprietor's private lands so as to prevent the accrual of a right of occupancy therein. Mr. Manuk's argument is that under the combined operation of Sections 20 and 21 of the Ben. Ten. Act the defendants would have a right of occupancy in the land unless it can be established that the land has been cultivated as zerait land by the proprietor himself with his own stock and by his own servants or by hired labour for 12 continuous years immediately before the passing of the Bengal Tenancy Act or that the land is recognized by village usage as proprietor's private land and (2) that the land is held under a lease for a turn of years or under a lease from year for, year.

7. It is Mr. Manuk's argument that? Section 120 of the Ben. Ten. Act gives a convenient definition of proprietor's private land but that Section 116 of the Act is the substantive section that deals with the non accrual of a right of occupancy in a proprietor's private land and that in order to establish such non-accrual, it must be shown as a condition precedent that the land is actually held under a lease for a term of years or under a lease from year to year.

8. In this case the lease in favour of the defendants expired in 1905. The suit was brought in 1916. Between 1905 and 1916 the defendants have been in actual possession of the land without a lease, and it seems to me that the essential condition for non-accrual of a right of occupancy is not satisfied. Mr. L.N Sinha however, argues that it must be presumed that tenant has held over on the same terms and conditions, and that therefore he has in effect held under a lease from year or for a term of years. This argument has great force, for it has been held that all that the landlord need prove on this point is that when the holding was first created it was held under a lease for a term of years or from year to year. It is, however unnecessary to come to a definite conclusion on this point, because I am satisfied that the plaintiff has failed to establish that the land is the proprietor's private land within the meaning Section 120 of the Ben. Ten. Act. There is no evidence worth the name that the land has been cultivated by the proprietor himself with his own stock by his own servants or by hired labour for twelve continuous years immediately before the passing of/Ben. Ten. Act, and it is not suggested that the land is recognized by village usage as the proprietor's zerait. Mr. L.N Sinha relies on two circumstances in support of his contention. First, on the patta grantee by Babu Parmeshwar Narain Singh, the then holder of the estate, on 11th February, 1872 coupled with a letting by Poshat Jha in favour of Daulatpur Factory on 27th March, 1873 for cultivating purposes; and, secondly, on the admission of the defendants that the land is the zerait land of the malik.

9. I am of opinion that there is no force in this contention. The fact that the plaintiff's predecessor-in-interest was letting out a portion of the village for cultivating purposes in my opinion leads to nothing at all, and the admission of the defendant that the land is the zerait of the malik must be taken with all other facts, admitted or proved in the case, before it is possible for us to arrive at a definite conclusion. It is admitted that the finally published Record of Rights, which was promulgated after the admission made by the defendants, is against the contention of the plaintiff, and the plaintiff has given no evidence whatever to discharge the heavy onus that is on her to bring her case within Section 120 of the Ben. Ten. Act; I hold therefore that the land which is the subject-matter of this suit is not the zerait land of the plaintiff. It was next contended by Mr. L.N Sinha that in any case the defendants, being a concern or a firm, are incapable of acquiring a right of occupancy in any land, and reliance was placed on the case of Cannan, Liquidator Agra and Masterman's Bank v. Kylash Chunder Roy Chowdhry(3), Rai Komul Dossee v. J.W Laidly(4) and Bujrangi Raut v. M.H Mackenzie(5). The first two cases were decided under the old Rent Acts which Contained no definition of a raiyat, but the word has now been defined in the Bengal Tenancy Act to mean:

“Primarily a person, who has acquired a right to hold land for the purpose of cultivating it by himself or by members of his family or by hired servants, or with the aid of partners, and includes also the successors-in-interest of persons who have acquired such a right.”

10. It is impossible to hold now that the members of a firm are incapable of acquiring a right of occupancy in the land. The two earlier cases were considered in the case of Laidley v. Gour Gobind Sankar(6), and it was there pointed out that, so far as the first case was concerned, the report did not show the particular facts on which the decision was base, and with reference to which the observations of the learned Judges were made, and, so far as the second case was concerned, the observations on which the plaintiff relied were obiter dicta and were not necessary for the decision of the case. The Court came to the conclusion that a lease in favour of a firm or of a concern must be taken to be a lease in favour of the individuals constituting the firm, and as there was nothing to show in that case that the original grantees were no longer members of the firm, there was nothing to prevent them from acquiring a right of occupancy in the land. In the case before us the last lease in favour of the Daulatpur Factory is dated 22nd May, 1900, and there is nothing to show that the original grantees are no longer members of the firm. There is, on the other hand, a clear admission by the plaintiffs in their plaint that the original grantees are still the members of the firm. This case was again considered in Bujrangi Raut v. M.H Mackenzie, wherein its authority was not in any way shaken. The facts in the latter case were entirely different. The names of the original grantees in that case were unknown and the person who claimed to have acquired a right of occupancy in the land was some one different from the original grantees. It is obvious that case can have no application to the facts of the case before us. I hold that the defendants have acquired a right of occupancy in the land in dispute. This appeal therefore fails, and I would dismiss it with costs.

11. Atkinson, J.:— I agree.

V.S/R.K

12. Appeal dismissed.