Sree Sree Iswar Gopal Jieu Thakur vs Pratapmal Bagaria And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 95 of 1949

Decision Date: 14 March 1951

Coram: Saiyid Fazal Ali, N. Chandrasekhara Aiyar

Sree Sree Iswar Gopal Jieu Thakur filed a civil appeal against Pratapmal Bagaria and others, which was recorded on 14 March 1951 before the Supreme Court of India. The petition was designated as Civil Appeal No. 95 of 1949. The judgment was authored by Justice Saiyid Fazal Ali, who was joined by Justices N. Chandrasekhara Aiyar, Das, and Sudhi Ranjan Aiyar on the bench. The case was cited as 1951 AIR 214 and 1951 SCR 322, and it was later referenced in the 1979 law report under citation R 1979 SC1880 (31).

The headnote of the decision explained that when a dispute arose concerning the legal necessity of a transaction, and when all original parties and potential witnesses were deceased, the court placed great reliance on the recorded recital of the principal circumstances. The court emphasized that such recitals could not be dismissed lightly. The judgment referred to earlier cases, including Banga Chandra Dhar Biswas v. Jagat Kishore Chowdhuri (43 I.A. 249), to illustrate this principle. It further noted that where a permanent lease granted by a shebait had remained unchallenged for an extended period, the court should presume that the lease had been created out of necessity, thereby giving it validity beyond the grantor’s lifetime. The decision also mentioned Bawa Magniram Sitaram v. Kasturbhai Manibhai (49 I.A. 54) in support of this view.

The appeal arose from judgments and decrees of the High Court of Judicature at Calcutta dated 25 August 1943, which themselves stemmed from a decision of the President of the Calcutta Improvement Tribunal in Case No. 95 of 1935. The appeals, numbered 95 and 96 of 1949, were argued before the Supreme Court. Counsel for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96 was represented by Panchanan Ghose, assisted by Upendra Chandra Mullick. Counsel for respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96 was S.P. Sinha, assisted by Nagendra Nath Bose. S.N. Mukherjee appeared for respondent No. 4 in Civil Appeal No. 95.

The Supreme Court’s judgment, delivered on 14 March 1951, addressed appeals against the decree of the Calcutta High Court at Fort William, which had affirmed a decision of the President of the Calcutta Improvement Tribunal. That decision had modified an award made by the First Land Acquisition Collector of Calcutta under the Land Acquisition Act concerning the acquisition of two premises, identified as Nos. 140 and 141, Cotton Street. To comprehend the disputes among the various claimants over the compensation awarded, the Court found it necessary to examine the factual background leading to the competing claims over those premises.

In this matter, the Court traced the history of the two properties that were the subject of the land acquisition proceedings. The land originally belonged to a man named Sewanarayan Kalia. After his ownership, the property was transferred to a deity called Sree Sree Iswar Gopal Jieu Thakur, which Sewanarayan had installed at Chinsurah in the district of Hoogly. Sewanarayan had three wives and died in the year 1836. At the time of his death he left behind his third wife, Muni Bibi, two daughters from his earlier wives – namely Jiban Kumari and Amrit Kumari – and a mistress known as Kissen Dasi. On 23 August 1836 the surviving family members executed a deed referred to as a “solenama”. The deed functioned as a family arrangement that divided the remainder of Sewanarayan’s estate, that is, the portion that was not already dedicated to the deity, in accordance with the terms of his will. As a result of that division, Muni Bibi received, subject to certain conditions, a number of properties including the premises described as No. 140 Cotton Street, while Jiban Kumari received the adjoining premises identified as No. 141 Cotton Street. Both Muni Bibi and Jiban Kumari also acquired the status of shebaits of the Thakur, giving them the authority to appoint successors to the deity.

Subsequently, on 20 January 1848, Muni Bibi executed an “arpannama” in which she dedicated the property No. 140 Cotton Street to the Thakur. The deed recorded several circumstances: first, that recurring droughts and floods had reduced the agricultural yield of the lands, leading to the sale of some deity-dedicated properties for overdue revenue; second, that Jiban Kumari had been using her private funds to meet the expenses of the deity’s jatra, mahotsob and other ceremonies, and that her contributions fell short, which was contrary to the provisions laid down by her late husband; third, that the house at No. 140 Cotton Street had been let out and was generating a rent of Rs 30 per month; and fourth, that after deducting necessary expenses the surplus amounted to Rs 20 per month. The deed further stipulated that if this surplus were included each month in the expenses of the deity’s service, the provision made by the deceased husband could continue to operate. After setting out these facts, the deed declared that the rental income from the house “shall be permanently and perpetually included in the expenses of the sheba.”

Approximately twenty years later, on 30 September 1869, Muni Bibi, acting in her capacity as a shebait, created a permanent lease known as a “maurasi mokrari” of the premises No. 140 Cotton Street in favour of a person named Nehal Chand Panday, who was acknowledged as a benamidar for Bhairodas Johurry. The lease stipulated a rental charge of Rs 25 per month, as evidenced by Exhibit L – a kabuliyat executed by Nehal Chand in favour of Muni Bibi. In the same calendar year, on 8 December 1869, Jiban Kumari granted a permanent lease of the adjoining premises No. 141 Cotton Street to Bhairodas Johurry, fixing the rent at Rs 90 per month. This transaction is recorded in Exhibit K – a kabuliyat executed by Johurry in favour of Jiban Kumari. The principal issue that arose for determination in the present case concerned whether the two ladies, Muni Bibi and Jiban Kumari, possessed the competence to convey debutter properties by way of permanent lease to another party.

The judgment examined whether the two women, Muni Bibi and Jiban Kumari, were legally empowered to grant debutter properties by way of permanent lease to another person. Muni Bibi died in the year 1870. After her death, on 15 January 1872, Jiban Kumari executed a registered deed in which she appointed Gourimoni Devi as the shebait and dedicated the premises identified as number 141 on Cotton Street to the deity. Both Jiban Kumari and Gourimoni Devi died shortly thereafter, and the minor son of Gourimoni, Gopal Das, succeeded as the shebait of the idol. While Gopal Das remained a minor, his father, Raghubar Dayal, was appointed his certificated guardian. In that fiduciary capacity, Raghubar Dayal executed a usufructuary mortgage deed on 31 August 1878, creating a mortgage over the Cotton Street properties in favour of Lal Behari Dutt. The deed allowed the mortgagee to collect the rents and other income from the properties while preserving the underlying ownership for the shebait, thereby securing the obligations of the mortgagor.

Following the death of Raghubar Dayal, his successor as certificated guardian was first Ajodhya Debi and thereafter Kalicharan Dutta. On 17 August 1890, the guardian then in office mortgaged several debutter properties, including numbers 140 and 141 on Cotton Street, to the same mortgagee, Lal Behari Dutt, for the sum of Rs 2,230. When Gopal Das attained majority, he executed on 17 January 1896 a further usufructuary mortgage deed covering all debutter properties, including the Cotton Street houses, in favour of Lal Behari Dutt. The purpose of this deed was to discharge the outstanding mortgage dues, which at that time amounted to Rs 4,955 and an odd amount. The deed stipulated that the mortgagee was entitled to collect rents, meet outgoings, continue the sheba of the deity, and apply any surplus from the property income toward satisfaction of the mortgage liability. Gopal Das died in 1900, leaving a widow, Annapuma, who survived him until her death in 1905. By 1918, Lal Behari Dutt had also passed away, and his interest in the mortgaged properties was transferred to Naba Kishor Dutt on 12 December 1918. On 17 November 1933, Naba Kishor assigned the mortgagee’s interest in the mortgaged properties to two members of the Bagaria family, who are respondents 1 and 2 in appeal No. 95, and in the same year the three respondents (1 to 3) also acquired the lessee’s interest in the Cotton Street houses. Land acquisition proceedings were initiated around 1934 concerning the premises numbered 140 and 141 on Cotton Street, together with two adjoining parcels that are not relevant to the present dispute. In those proceedings three distinct sets of claimants advanced their respective claims: (1) the Bagarias, originally asserting themselves as absolute owners of the premises and later claiming only the rights of mortgagees and permanent lessees; (2) Deosaran Singh and Ram Lakshman Singh, who, on behalf of the deity, asserted that they were the shebaits and therefore entitled to the entire compensation because the premises were debutter properties of the deity; and (3) a fourth respondent who sought compensation as a lessee under a purported ninety-nine-year lease. The appellate consideration in this case is limited to the first two sets of claims, and the subsequent discussion outlines how the Collector and the lower courts dealt with those claims.

In the disputes before the Court, the claim made by the deity asserted that the Bagarias had never obtained any interest in the property, either through the assignment of the usufructuary mortgage or through any alleged purchase of the tenant’s rights. The third claimant, identified as Respondent No 4, sought compensation as a lessee for a term of ninety-nine years, relying on a lease that he alleged had been granted by the original landlords. The present appeals, however, focused solely on the first two sets of claims, and the Court briefly outlined how those claims had been handled by the Collector and by the lower tribunals.

On 22 May 1935, the Collector determined that a sum of Rs 31,740 should be awarded as compensation for the landlord’s interest in the property. That amount was to be divided between the deity, which was treated as the owner, and two of the Bagarias, who were respondents 1 and 2 in Appeal No 95, in their capacity as holders of a usufructuary mortgage. In the same award, the Collector also ordered that Rs 1,58,000 be paid to respondents 1, 2 and 3 as compensation for their rights as permanent tenants of the premises.

Following the Collector’s award, three separate petitions of reference were filed by the claimants challenging the award. The Collector’s reference was subsequently recorded as Apportionment Case No 95 of 1935 before the Calcutta Improvement Tribunal. During the pendency of those proceedings, the claimants Deosaran Singh and Ram Lakshman Singh, who had asserted rights as shebaits, withdrew from the contest. The President of the Tribunal then appointed Narendra Nath Rudra to act as the next friend of the deity, thereby representing and protecting the deity’s interests.

On 31 August 1938, the President of the Tribunal delivered his decision. He largely affirmed the Collector’s award but altered it in a single respect. The Tribunal held that the usufructuary mortgage on which respondents 1 and 2 had based their claim had been discharged; consequently, those respondents were not entitled to any portion of the Rs 31,740. The Tribunal ordered that the entire amount of Rs 31,740 be paid to the deity. Nevertheless, the Tribunal found that respondents 1, 2 and 3 remained entitled to the sum of Rs 1,58,000 as permanent tenants. This conclusion rested on the finding that the leases had been created out of legal necessity and were therefore binding on the deity. Moreover, the Tribunal held that, under article 134(a) of the Limitation Act, the deity could not challenge the validity of those leases. Regarding costs, the Tribunal directed that all expenses incurred on behalf of the deity be recovered from the compensation money that was held in deposit with the court.

Subsequently, both of the principal contesting parties appealed the Tribunal’s decision to the High Court. The High Court dismissed both appeals and affirmed the Tribunal’s ruling. After that, the current appeals were brought before the Supreme Court. The deity obtained a certificate granting leave to appeal from the High Court, while the Bagaria respondents secured special leave from the Privy Council to file a cross-appeal. The principal issues that the Supreme Court was called upon to determine were twofold: first, whether the two mourasi mokrari leases were justified on the ground of legal necessity; and second, whether the mortgages on which the Bagarias based their claim to compensation had been fully satisfied.

The matter presented two principal questions: first, whether the two mourasi mokrari leases that had been referred to were justified on the ground of legal necessity; and second, whether the mortgages on which the Bagarias based their claim for compensation had been fully satisfied. The first of these questions was raised in Appeal No. 05, while the second arose in Appeal No. 96. Regarding the issue of legal necessity, the Tribunal and the High Court had both arrived at concurrent findings against the appellant in Appeal No. 95. Nevertheless, counsel for the appellant was permitted to elaborate on this point at length because it was submitted that, on the facts, the issue was not purely factual but involved a mixture of fact and law. The High Court’s decision had hinged on the interpretation of the leases and on the inference that the permanent character of the tenancy had remained undisputed for a very long period. The tenancy in question dated back to 1869, and it was therefore unsurprising that no direct documentary evidence concerning legal necessity could now be produced. Consequently, the Court was obliged to rely on the recitals contained in the documents, namely exhibits L and K, to determine the circumstances under which those documents were executed. Established jurisprudence holds that when all the original parties to a transaction and those who could have testified on relevant points are deceased, a recital setting out the principal circumstances of the case assumes heightened importance and cannot be dismissed lightly. The recitals, in the present case, were found to provide valuable evidence because the tenancies had been created by two devoted ladies who were deeply interested in the service of the deity and for whom there was no suggestion of any intention to derive personal gain from the transactions. It was therefore deemed highly unlikely that they would have fabricated recitals merely to support the transaction. It may be recalled that, in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari (1) 43 I.A. 249 had been augmenting the income of the remaining property from her own holdings in order to meet the expenses of essential services to the deity, such as jatra and mahotsob. The arpannama further reveals that the value of the property forming the subject matter of the mokrari kabuliyat dated 30 September 1869 (exhibit L) was Rs 2,000 as of 1848, that the property was not in the khas possession of Muni Bibi but had been let to a tenant, and that its net income was Rs 20 per month. At the time the arpannama was executed, Muni Bibi clearly believed that the sum of Rs 20 per month, if included in the expenses for the service of the deity, would be sufficient to meet the deity’s needs.

The purpose was to guarantee that the sheba could continue to be performed without any external assistance. From the statements contained in exhibit L, it is evident that the house identified as number 140 on Cotton Street was in a state of disrepair and had completely collapsed during the rains of 1270 B.S. (which corresponds to 1868 A.D.). Muni Bibi was therefore unable to meet the cost of erecting a new structure on that site. Consequently, she faced a dilemma: either allow the deity to forgo any income that might have been derived from the property, or enter into an arrangement that would secure a permanent source of revenue for the deity’s expenses, an amount that could not be less than the income the property had previously generated. After considering the options, she chose what appeared to her to be the more prudent and sensible course. By doing so, she obtained a cash sum of Rs 500 for the deity, representing the price of the building materials that were sold to the lessee, and she also ensured a regular monthly income of Rs 25. There is no doubt that this transaction was made in the best interests of the deity and was clearly beneficial to its worship.

Reference to the arpannama confirms that the house was already occupied by a tenant as early as 1848. The document further indicates that Muni Bibi intended the house to remain in the tenant’s possession and that the rent collected from the tenant would be applied to the sheba of the deity. At that time, she did not contemplate any alternative method of utilizing the property she intended to dedicate. Although the identity of the tenant in 1848 and the specific commitments of Muni Bibi at that moment are not known, it is difficult to imagine that a devout individual such as Muni Bibi—who was not only a shebait but also the widow of the deity’s founder and who had demonstrated a keen interest in maintaining the worship—would have entered into the transaction in question unless she deemed it absolutely necessary. The contention before this Court is that it has not been demonstrated that no other avenue was available to Muni Bibi apart from granting a permanent lease of the property. Nevertheless, given the passage of considerable time, no evidence can now be produced to show the precise pressure or necessity that compelled Muni Bibi to adopt the course she chose. It is now well settled that when the validity of a permanent lease granted by a shebait is questioned many years after the grant, and the exact circumstances of its creation cannot be ascertained, the Court should presume that the grant was made out of necessity, thereby rendering it valid beyond the life of the grantor. See Bava Magniram Sitgram v.

In this case, the Court noted that the circumstances described in the recitals, together with the fact that the lease document had remained unchallenged for more than fifty years, were sufficient to support the conclusion that the grant had been made out of legal necessity and was therefore binding upon the deity. The Court observed that, according to the facts narrated, several shebaits had succeeded one another following the death of Muni Bibi and prior to the initiation of the present litigation, yet none of those successors had contested the validity of the lease as being beyond the authority of the shebait who had originally granted it. Moreover, the permanent nature of the lease was expressly recognised in a deed executed by Gourimoni on 18 October 1873 (exhibit Y) and again in a mortgage deed executed by Raghubar Dayal, who was the guardian of Gopaldas, on 31 August 1878. The Court further recorded that the properties subject to the lease were later mortgaged by Kali Charan Dutt and by Gopaldas, but that neither the mortgagors nor the mortgagees ever raised any objection to the perpetuity of the tenancy.

The Court also considered the argument advanced by counsel for the appellant, who relied upon exhibit VI, a copy of a High Court judgment in a suit filed by Nabakishore Dutt in 1995 against the Administrator-General of Bengal concerning the rent of the house in question. The Court observed that the judgment indicated that the defendant had admitted the existence of the tenancy and also acknowledged that rent was due; however, the defendant claimed a right to receive a receipt specifying that the payment was to be treated as mourasi mokrari rent. The learned judge handling that case held that the issue raised by the defendant did not properly arise in a suit for rent, which could not be transformed into a suit for declaration of title, and consequently decreed in favour of the plaintiff. Although the judgment did not expressly state that Nabakishore Dutt contested the tenancy as mourasi mokrari, the Court held that, even assuming such a contention had been made, it could not affect the character of a tenancy that had remained unchallenged for nearly half a century. The Court further remarked that the legal position concerning 141, Cotton Street was essentially the same as that of the adjoining premises already discussed. As previously indicated, a mourasi mokrari tenancy had been created by Jiban Kumari on 8 December 1869, as shown by exhibit K, which noted that the leased house required repairs and that, without those repairs, part of the structure might collapse within a year. The document also recorded that any income derived from the house up to that time had been earned by letting it out for rent and that the mourasi tenancy was being established for the purpose of repairing the house and preserving its existence.

In the document, the stated purpose was to repair the house and keep it in existence. At the conclusion of the same document, it was expressly declared that the shebait must maintain the kabuliyat and patta in force and, upon receiving rent of Rs 90, must defray the expenses of the deity’s service. It is noteworthy that the actual dedication of the property occurred on 15 January 1872, which was more than two years after the establishment of the kabuliyat. On that date, Jiban Kumari executed a registered deed of gift in favour of Srimathi Gourimoni Debi, and the deed recited that the income of the house was being dedicated by the former to the service of the deity. The deed also contained an additional clause, which read: “In accordance with the terms of the solenoma the expenses of the Iswar seba shall be met from the income of those properties which have been dedicated for the performance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for seba of the said Thakur shall be met and the Tahailia (attendant) and the Brahman cook and the Brahman priest (now) employed and to be employed hereafter shall get (their) salaries, from the income of the said property.” When this document is read together with the solenoma and the mokrari lease granted by Jiban Kumari, it appears that she dedicated the property after she had already created a mokrari lease, that the dedication concerned the rental income derived from the mourasi mokrari tenancy, and that the income was earmarked for specific purposes aimed at compensating the shortfall in revenue from other debutter properties. If it is held that Jiban Kumari was the absolute owner of the property at the time the mourasi mokrari lease was granted and that she later dedicated only the income of the property, then the permanent lease cannot be challenged. Conversely, if the solenoma is read to show that Jiban Kumari possessed only a life estate in the house and that, after her death, the deity’s expenses were to be borne from the house’s income, a question would arise as to whether she was entitled to create a lease that extended beyond her lifetime. That question does not require an elaborate answer, because the same considerations that applied to 140 Cotton Street also apply to this house, and the presumption of necessity generated by the long lapse of time is equally relevant here. This presumption is further reinforced both here and in the case of the lease granted by Muni Bibi, by the fact that the grantor of the lease was deeply devoted to the purpose of the endowment.

Because the endowment was intended to serve a religious purpose, the Court concluded that it was improbable that the donor would have granted a permanent lease unless she was forced to do so by an absolute necessity. Accordingly, the Court found that the High Court’s assessment was substantially correct and that respondents numbered one and two were properly entitled to compensation in their capacity as permanent lessees. On the basis of this conclusion, the Court held that Appeal Number 95 could not succeed and ordered its dismissal.

With regard to Appeal Number 96, the Court noted that both the President of the Tribunal and the High Court had unanimously determined that the appellants had not produced satisfactory evidence to demonstrate that any sum remained payable to them under the usufructuary mortgage executed by Gopaldas in the year 1886. In reaching that conclusion, the Court observed that the adjudicating bodies had examined every argument that could be, and indeed was, raised on behalf of the appellants to show that the mortgage had not been discharged. The Supreme Court reiterated its established practice of refraining from interfering with concurrent factual findings, and it found no material presented by the appellants that would justify departing from that principle. Consequently, the Court dismissed Appeal Number 96 as well.

Considering the overall circumstances of the case, the Court decided that no order as to costs would be made against either party in either appeal. Both appeals were therefore dismissed. The agents appearing for the parties were recorded as follows: the appellant in Civil Appeal 95 and the respondent in Civil Appeal 96 were represented by Sukumar Ghose; the respondents numbered one to three in Civil Appeal 95 and the appellants numbered one to three in Civil Appeal 96 were represented by S. C. Banerjee; and the respondent numbered four in Civil Appeal 95 was represented by P. K. Chatterjee.