Authored By : Henry Thoby Princep, Beverley

Henry Thoby Princep and Beverley, JJ.

1. The plaintiff, who jointly with others holds a zamindariinterest in certain lands cultivated as a tea garden, sues the defendant to setaside a pottah granted by Kalinarain Singh, his guardian under Act XL of 1858,while he was a minor, and for ejectment in respect of his eight-anna share. Hestates that his guardian, without authority obtained from the Court, granted tothe defendant in Magh 1281 (January 1875) a lease for twelve years with acondition of renewal, his power to grant any lease under such circumstancesbeing limited by Section 18 of the Act to granting a lease for the term of fiveyears. He states further that he attained majority in Bhadro 1289 (September1882), that is to say about 7 1/2 years after the date of the lease, and hebrings the present suit in August 1885 (Srabun 1292), after giving on the 23rdJoist 1290 (5th June 1893) notice to the defendant to relinquish possession ofhis share of the land within one month.

2. The Subordinate Judge has dismissed the suit on thepreliminary ground that the plaintiff, as one of several co-sharers in thezamindari, is not entitled to maintain this suit in the absence of hisco-sharers. He has held that the defendant is not a trespasser under thecircumstances, seeing that he entered into possession of the land under apottah granted by the plaintiffs guardian, and that pottahs were granted bythe other co-sharers, and that he has held peaceful and undisturbed occupancyfor more than twelve years.

3. In appeal it is contended that, as regards theplaintiffs eight anna share of this property, the defendant is a trespasser,inasmuch as the pottah which he sets up was granted under Do legal authorityand is therefore void, and that consequently the plaintiff is entitled to suealone to recover joint possession of his share of the lands which have beenleased to the defendant without his consent. It is admitted that since heattained majority the plaintiff has in no way recognised the defendant as histenant and in lawful possession. It is also contended that, even if the leasegranted by the certificated guardian of the plaintiff be held to be good forfive years, it was a separate lease, and that therefore the plaintiff wascompetent to exercise, in respect to the defendant, all the rights of alandlord so as to eject him, if necessary, without consulting the otherco-sharers in the zamindari.

4. In respect to the first objection we are of opinion thatthis lease granted by the certificated guardian without authority from theDistrict Judge cannot, under Section 18 of Act XL of 1858, be regarded as avalid instrument, even for the period of five years for which a certificatedguardian is competent to grant a lease. We must hold that, under thecircumstances of this case, that instrument is in all respects invalid. Thelease in question is a lease for 12 years in the first instance, but renewableon the expiration of that period, apparently in perpetuity, on an assessment atthe pergunnah rate of rent. It is moreover a transferable lease, and it wasspecially granted for the purpose of making a tea garden. We are unable to holdtherefore that it was ever the intention of the parties that it should operateas a lease for a term of years, or that it could by any possibility operate assuch. On the contrary it was evidently intended that it should operate as apermanent transferable lease, and such a lease a certificated guardian has noauthority to grant without the permission of the Court. Section 18 of the Ant(XL of 1858) says distinctly: "But no such person shall have power to sellor mortgage any Immovable property, or to grant a lease thereof for any periodexceeding five years, without an order of the civil Court previouslyobtained." It has been held in several cases cited Dabee Dutt Sahoo v.Subodra Bibee 2 C 283 : 25 W.R. 449 : Sikher Chund v. Dulpulty Singh 5 C. 363 :5 C.L.R. 374 : Buckraj Ram v. Ram Kishen Singh V. C.L.R. 345 : Mauji Ram v.Tara Singh 3 A. 852 that a sale or mortgage made in contravention of thisprovision of the law is absolutely void. We have not been referred to anydecision on this point in respect of a lease for a term exceeding five years,and it is possible that there may be circumstances under which a lease for morethan five years, given by a certificated guardian without the sanction of theCourt, might be held good and valid for the term of five years for which he wascompetent to grant it. In the present instance, however, the lease was not alease for a term, but practically a permanent alienation of the landlordsestate subject to a rent charge; and having regard to the stringent provisionsof the statute, we are of opinion that it was a transfer of a character whichthe guardian was expressly forbidden to make without the previous sanction ofthe Court, and, that being so, that it is a nullity. It was made in directcontravention of the terms of the Act, and is therefore absolutely void. Insupport of this conclusion we may refer to the two cases of Roe d. Brune v.Prideaux 10 East 158 and Doe d. Biggs v. White 2 D. and R. 716 referred to inWoodfalls Landlord and Tenant, p. 184 (12th Ed.), in which leases granted inexcess of the power vested in the lessor were declared to be void ah initio,and not void only as to the excess. The lease in the present case was in thenature of a permanent alienation of the property, and we have little hesitationin saying therefore that it was a transaction positively forbidden by thestatute, and therefore void.

5. It has been argued by Mr. Chakravarti for thedefendant-respondent that, Assam being a scheduled district, Act XL of 1858,was not in force in that province in February 1875, when the lease in questionwas executed. That objection is, in our opinion, untenable. Before the passingof Act VIII of 1874, Assam formed a portion of the Presidency of Fort Williamin Bengal, and the laws in force in that Presidency extended to Assam. Amongthese laws was Act XL of 1858. The province of Assam was separated from Bengalby Act VIII of 1874, and by Act XIV of 1874 it was declared to be what isdescribed as a scheduled district. But as regards the laws then in force inAssam, they continued to be unaltered until, by a notification made under theprovisions of Section 3 of Act XIV of 1874, a declaration was made (a)extending the Act itself to the province of Assam, under the provisions ofSection 1, and (b) setting out what enactments were or were not actually inforce in that province. There is nothing in the Act itself to show that anyenactment previously in force in the scheduled districts ceased to be inoperation merely by virtue of the passing of that Act. The Act itself was notto come into operation in any of the scheduled districts until it had beenextended by a notification made under Section 3; and from an examination of theGovernment Gazette, we find that no such notification was made until 3rd November1877, i.e., subsequent to the issue of the certificate in this case. Thisobjection is therefore unsound. A further objection was raised by Mr.Chakravarti to the effect that, inasmuch as the certificate to Kalinarain Singhwas not actually issued until after the execution of the lease, he was not atthe time of granting that lease a certificated guardian under Act XL of 1858,and consequently was not restricted by the provisions of Section 18. But wethink it is a sufficient answer to this argument to point out that the orderfor the issue of a certificate was made so far back as September 1868, and thatfrom that date Kaiinarain appears to have acted as a certificated guardian andto have been recognized by the Court as such. So far as regards the questionnow before us, the evidence on the record goes to show that Kaiinarain grantedthe lease in question by virtue of the authority vested in him by Act XL of1858.

6. It would appear that the day after the lease in questionwas executed by Kaiinarain Singh, the guardian of the plaintiff, a similarlease was executed in favour of the defendant by the three annas co-sharers,and some two years and a half later, a third lease was executed by the fiveannas co-sharer. All these leases were in the same terms, and they were tooperate contemporaneously. They are what are known as jungleboori leases, thatis to say, clearing leases, carrying no rent for the first three years and thenfixing a rent at one and the same rate for such lands as on measurement mightbe found to have been occupied by the defendant for purposes of cultivation.They provide for the payment of rent to each co-sharer separately, andauthorize each co-sharer to sue separately for his share of the rent withoutjoining as parties the other co-sharers. They give the lessee a right ofrenewal at the expiration of the 12 years, and are declared to be heritable andtransferable. It has been contended before us that under these circumstancesthe three leases must be considered as creating one joint tenancy under all theco-sharers, and that being so, that one of the co-sharers alone is not entitledto sue to eject the defendant who had been let into tenancy by the joint actionof all the co-sharers. It is said that, the three leases being in identical termsand operating simultaneously, they must be taken to constitute one and the sametenancy. The reason why three separate documents were executed is, in thisview, explained to be the facilitation of suing, if need be, for theco-sharers separate share of the rent.

7. A large number of authorities have been cited to us onthis point as follows:

Alum Manjee v. Ashad Ali 16 W.R 138; Hamilton v. RughooNundun Singh 20 W.R. 70; Hulodhur Sen v. Gooroo Doss Roy 20 W.R. 126; ChundeeChowdhry v. Macnaghten 23 W.R. 386; Dinobundhoo Ghose v. Drobo Moyee Dossia 24W.R. 110; Doli Sati v. Ikram Ali 4 C.L.R 63; Rasha Prasad v. Esuf 7 C. 414;Tulsi Panday v. Bachu Lal 9 C. 596 : 12 C.L.R. 223; Reasut Hossein v. ChorwarSingh 7 C 470; Kali Chandra Singh v. Rajkishore Bhuddro 11 C. 615.

8. All these authorities go to establish this propositiongenerally that, although one of several co-sharers may sue to eject atrespasser so far as his interest in the land is concerned, he cannot aloneeject a tenant who has been put upon the land by all the co-sharers and isstill holding under them all.

9. The contention of the tenant-respondent in this case isthat he was let into possession by the joint action of all the co-sharers, andthat he cannot therefore be ejected at the suit of the plaintiff alone. Wehave, however, held that the lease granted on behalf of the plaintiff was anullity, and the defendant cannot therefore derive any benefit from it. Asregards the plaintiffs share at least, he must be regarded as a trespasser.This is in accordance with the case of Hamilton v. Bugoo Nundun Singh 20 W.R.126. If again the three leases are to be construed as one and the same, itmight be a question whether the defendant could claim to hold even as againstthe other co-sharers. We think, however, that, having regard to the fact thatthree separate documents were executed, and that they were executed on threedifferent dates, that they stipulated for the separate payment of eachco-sharers share of the rent, and apparently gave to each co-sharer the rightto measure and assess the rent in future independently of the others, the threeleases must be held to constitute three separate tenancies, one of which mightbe avoided without affecting the others.

10. Holding, as we do, that the lease as regards theplaintiff-appellants share was absolutely void, it is unnecessary to considerwhether or not the notice alleged to have been served on the defendant wasactually served, and whether it was a reasonable notice. In the view we take ofthe case no notice was necessary.

11. There are however other points in the case, for thedetermination of which it must be remanded to the lower Court. It is contendedon the authority of Surut Chunder Chatterjee v. Ashutosh Chaterjee 24 W.R. 46and Girraj Baksh v. Kazi Hamid Ali 9 A. 340 that the appellant should only beallowed to recover possession upon certain terms as to reimbursing to thedefendant the cost of laying out the tea garden, &c, no fraud or misconducton the defendants part having been alleged or proved. This matter formed thesubject of the sixth issue, which has not been tried.

12. We therefore set aside the decree of the lower Court andremand the case under Section 562 of the Code for the trial of such of theremaining issues as may be found necessary, having regard to the remarks madeby us in this judgment. The costs of this appeal will abide the result.

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Harendra Narain Singh Chowdhry vs. T.D. Moran (27.06.1887 - CALHC)