Gurbttchan Sinzh

The State of

Bomboy and Another.

Muk_herjea ].

May 26.

SUPREME COURT REPORTS [1952]

suspect. The power to initiate proceedings under the Act has been vested in a very high and responsible officer and he is expected to act with caution and impartia!'ity while discharging his duties under the Act.

This contention of Mr. Umrigar must, therefore, fail.

The last point made by Mr. Umrigar d0es not seem to us to be tenable.

It is true that a procedure '-. • different from what is laid down under the ordinary law has been provided _for a particular class of persons against whom proceedings could be taken under sec- '-... tion 27(1) of the City of Bombay Police Act, but the discrimination if any is based upon a reasonable classi- . fication which is within the competency of the legislature to make. Having regard to the objective which . • the legislation has in view and the policy underlyiag it, a departure from the ordinary procedure can certainly' 'be justified as the best means of giving effect to the object of the legislature.

In our opinion, therefore, there is no substance in the petition and it shall stand dismissed.

Petition dismissed. _4

Agent for the petitioner: P. K. Chatterjee.

Agent for the respondents : P. A. Mehta.

D. K. NABHIRAJIAH v.

THE STATE OF MYSORE AND OTHERS.

[PATANJALI SASTRI C.J., MEHER CHAND MAH, AJAN, MUKHERJEA, DAS and CHANDRASEKHARA AIYAR JJ.J Mysore House Rent and Accommodation Control Order, 1948- Va/idity-F,, ndamental right not to be deprived of property-Constitutiou of India, Arts. 31 (2), 19 (!) (!)-Order of allotment efore

Constit"tion came into for'l'e-Possession taken thereafter-Validity of proceedings-Writ for quashing orders-Maintainability.

A house belonging to the petitioner in the Bangalore City -' 0 -< l'cll vacant on the !st September, 1949, and on the 13th September, 1949, an order was passed by the Rent Co"troller

-.. ,

under the Mysore House Rent and Accommodation Control Order, 1948, allotting the house to another person and directing the petitioner to deliver possession to the latter. The petitioner protested and took various steps to get the order vacated but he was unsuccessful and forcible possession wu taken from him under an order made on the 11th April, 1950.

He applied to the Supreme Court under Art. 32 of the Constitution for quashing the order allotting the house and the subsequent orders made to enforce that order, on the ground, inter alia, that these orders contravened the provisions_ of Arts. 31

(2) and 19

(1) (£) of the Constitution:

Held, (i) that as the order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private individual, the order could not be impugned on the ground that it contravened Art. 31(2) or 19(1) (f) of the Constitution; (ii) the fact that possession was actually taken on! y in pursuance of an order made on the 11th April, 1950, was immaterial as the petitioner's right to possession was lost earlier; (iii) Art. 31 (2) was inapplicable for another reason also, namely, that there was no acquisition of the house by the State, as taking of possession can only be from a person who is entitled to possession and the landlord lost this right to possession by reason of the Controller's order.

Held also, that the power conferred by cl. (bb) of sub-cl. {2) >-· of Rule 81 of the Defence of India Rules (under which the Control Order was made) was not confined to cases where the house was available for letting or subletting in the sense that the landlord did not require the house for his own use or had not let it to another himself.

ORIGINAL JurusDICTION : Petition No. 297 of 1951.

Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights by quashing the orders of the Deputy Commissioner and House _.,.

Rent Controller, Bangalore, allotitjing \the' petitfoner's house to the 3rd respondent and for taking forcible possession of the same.

S. K. Venkataranga Iyengar for the petitioner.

A. R. Somanatha Iyer, Advocate-General of Mysore, (R. Ganapathy Iyer, with him) for the respondent No. 1.

K. Ramaseshayya Chowdhury for the respondent No. 2.

1952. May 26. The Judgment of the Court w; u delivered by

5-8 S.C. India/71

D. K.

N ab!tirajiak

Tke State of Mysore •11d Others.

D. K.

N abhirajiah v.

The State of

Mysore and Others.

Chandrasek._hara Aiyar /.

CHANDRASEKHARA AIYER J.-This is an application under article 32 of the Constitution for quashing the orders of the Deputy ., Commission.er and House Rent Controller, Bangalore, (2nd respondent) allotting house No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the use of Sri Aswathanarayana Rao (3rd respondent) and taking forcible possession of the same.

The State of Mysore has been impleaded as the first respondent.

The facts are these.

The petitioner D. K. Nabhirajiah is a merchant and is the owner of the premises aforesaid. After lengthy litigation, the previous tenant of the premises vacated it on 1st September, 1949. On 2nd September, 1949, the petitioner notified the vacancy to the 2nd respondent as required by law but added that he wanted the premises for his own use to set up one of his grown-up sons in a business in clectr'ical goods.

The third respondent Aswathanarayana Rao however wanted the house for a children's school which he was running under the name of Bala Mandir and so he not only applied to the Reht Controller for allotting to him that house but also moved the Minister for Law and Labour for the same purpose.

The second respondent made an order on 13th September, 1949, in the following terms :

"With reference to your vacancy report in respect of the above place you are informed under clause 3

(2) of the Mysore House Rem and Accommodation Control Order, 1948 that the building is required for the occupation of Balamandira Home for the children and for residential use of the Director. You are therefore directed under clause 3 ( 4) of the Mysore House Rent and Accommodation Control Order, 1948 to hand over possession of the above house to the said Sri Aswathanarayana Rao, Director, Balarnandira." By a.n order dated 20th September, 1949, made on an application by. the petitioner dated 16th September, 1949, the Deputy Commissioner refused to reconsider the allotment and required the petitioner to give effect to the same at once and deliver possession to the allottee.

....

. .

,.... .

The petitioner preferred an appeal to the Commissioner of Labour who is the House Rent Control Appellate Authority and obtained a stay, but the appeal was eventually dismissed and the said order vacated on 28th December, 1949. He filed a Revision Petition No. 97 of 1949-50 before the Government of Mysore but without success and the Government declined to interfere by their order dated 14th March,

1950.

He then resorted to the High Court of Mysore by means of a petition under section 45 of the Mysore Specific Relief Act. This again' was dismissed on the ground that the party who seeks to obtain an order under the said section cannot do so on the allegation that the statute which enjoins the doing or forbearing of the act is itself illegal or ultra vires. Applications moved under article 226 of the Constitution in the course of the same proceedings also failed.

This was on 5th January, 1951.

Some intermediate steps may now be set out. The third respondent complained that he had not been given possession.

On this complaint, the second respondent passed an order on the 20th March, 1950, to the following effect :-

"Sri Aswathanarayana Rao, the allottee of the :i.bove house, has reported that you have not handed over possession of the house to him. You are required to show cause immediately why you should not be prosecuted for failure to obey the order.

Please note that if the house is not handed over to the allottee, 2ction will be taken under clause 3 ( 6) to take forcible possession of the house through police."

The petitioner lodged a protest against this order pointing out that the House Rent Accommodation Control Order did not vest the Controller with jurisdiction to allot the house, but on 23rd March, 1950,

he received the following reply :-

"Your letters under reference have been examined carefully. It is not correct to say that allotment of a house to any party (private) is illegal. Clause 3 of

D. K.

Nabhirajiah v.

The State of Mysore and Others.

Chandrasekhara Aiyar /.

D. K.

N abhiraji'ah

The Stat• of

Mysor•· and Oth.,,.s.

Chandmsekharu Aiyar /.

7•f8

SUPREME COURT REPORTS [1952] the Mysore House Rent Control Order, 1948, is amended to include any person also. I do not find any other reason except that you are evading to give possession to the allottee.

You are hereby finally warned that if possession is not given to the allottee action will be taken to prosecute you and take forcible possession of the house."

On 11th April, 1950, the second respondent made the following order :-

"Whereas premises No. 291, Fifth Main Road, Gandhi Nagar was allotted to Sri Aswathanarayana Rao of Balamandira.

The owner's appeal before the Labour Commissioner and Government having been rejected, the owner filed a petition before the High Court of Mysore who passed an interim order and which was vacated by the order referred to above. A subsequent appeal before the Labour Commissioner has also been rejected and stay vacated in Endorsement in H.R.C. 1/1949-50 dated 10th April, 1950.

I therefore direct the owner Sri D. K. Nabhirajiah to hand over possession of the said house to Sri Aswathanarayana Rao at once, failing which, I authorise the Superintendent of Police, Bangalore City or any other officer empowered by him in his behalf to take possession of the house and hand over to the allottee, Sn Aswathanarayana Rao."

As this order was not obeyed by the petitioner, forcible possession was taken of the house with police help and the third respondent was given possession.

The petitioner seeks to quash the above-mentioned orders of the second respondent dated 20th September, 1949, 20th March, 1950, 23rd March, 1950, and 11th April, 1950.

The prayer in the petition is thus worded:-

"for quashing the orders of the second respondent No. 522-Acc. (b )-49 dated 20th September, 1949, confirmed by Appellate Authority 'in H.R.C. Appeal No. 117 of 1949-1950 dated 28th December, 1949, and by the Government of Mysore in H.R.C. Revision Petition No. 97 of 1949-1950 dated 14th March,

• 4.

' ,_

1950, and also the subsequent orders of the second respondent No. 562 Acc. (b )-50 dated 20th March, 1950, 23rd March, 1950, and 11th April, 1950, respecti:vely a.Hotting and taking over forcible possession of the property No. 291, Fifth Main Road, Gandhi Nagar, Bangalore City, for the use of a private individual, the thlrd respondent, and for costs."

The contention of the petitioner is a threefold one, namely:-

(1) The order allotting the premises to the third respondent contravenes the provisions of article 31, sub-clause (2) and article 19 (1) (f) of the Constitution.

~. ·

(2) The order is discriminatory and offends article 14 of the Constitution,.

(3) Under the Defence of India Rub under which the Accommodation Control Order was made, the :1llotment can only be of houses available for letting.

It will be convenient here to set out the relevant legislative provision's.

The Mysore House Rent and Accommodation Control Order, 1948, (hereinafter referred to for the sake of convenience as the Control Order) was made in exercise of the powers conferred by clause (bb) of sub-rule (2) of Rule 81 of the Defence of India Rules as applied to Mysore, and it came into force with effect from 1st July, 1948.

Clause 3 of the Control Order provides, subject to two exceptions, for notice being given by the landlord to the Controller within seven days after a house becomes vacant. Subclause (2), as it originally stood, was in the following terms:-

"(2) If within ten days of the receipt by the Controller of a notice under sub-clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of the Government of an Indian Province or State, or of any local authority or public body, or of any educational or other public institution for the occupation of any

D. K.

Nabhirajiah v.

Tise State of Mysore .ntl Othet'S.

Chandra

sekhara Aiyar /.

D. K.

Nabhirajiah v.

The Stat• of

Mys01e and Otiiers.

Chand:•asekhaia Aiyar /.

officer of any such government authority, body or institution, the landlord shall be at liberty to let the house to any tenant, or if the Controller, on application made by the landlord permits the landlord to do so, to occupy the house himself."

By a notification dated 4th May, 1949, the words : "or for the occupation of any individual" were added after the words "body or institution" in the said sub-section.

The sub-clause as amended runs thus :

"(2) If within ten days of the receipt by the Controller of a notice under sub-clause (1), the Controller does not intimate the landlord in writing that the house is required for the purposes of the Government of Mysore, or of the Central Government, or of tlie Government of an Indian Province or State, or of any local authority or public body, or of any educational or other public institution, or for the occupation of any officer of any such Government authority, body or institution or for the occupation of any individual, the landlord shall be at liberty to let the house to any tenant, or if the Controller on application made by the landlord, permits the landlord to do o, to occupy the house himself."

Sub-clause (3) says :-

"The landlord shall not let the house to a tenant or occupy it himself, before the expiry of the period of tea days specified in sub-clause (2), unless he has received intimation that the house is not required for the purposes referred to in that sub-clause or the permission referred to therein, earlier."

To this sub-clause, a proviso was added by a notification to the following effect :

"Provided that the Controller, before requiring the house for any of the purposes stated above, shall take into consideration such l:epresentati; on, if any, as may. be made by the owner regarding his bona fide requirements for personal occupation."

Then comes sub-clause ( 4) which reads as follows :-

"( 4) If the house is required for any of the purposes or for the occupatin by any of the officers

....

-; ..,-

...

specified in .sub-clause (2) the landlord shall deliver possession of the house to the Government authority, body or institution concerned and such Government authority or body or institution shall be deemed to be the tenant of the landlord, with retrospective effect from the date on which the Controller received notice under sub-clause (1), the terms of the tenancy being such as may be agreed upon between the landlord and the tenant: Provided that the rent payable shall not exceed the fair rent which may be payable for the house under the provisions-of this Order."

The Mysore House Rent and Accommodation Control Order of 1948 was repealed by the Mysore House Rent and Accommodation Control Act XXX of 1951.

But what is relevant and material for disposal of this petition is the earl'ier Control Order as all the proceedings now in question were taken under it.

If the allotment had been made under the Control Order prior to the date of its amendment on 4th May, 1949, the petitioner would have had a good case to urge. Sub-clause (2) as it then stood spoke of the house being required for certain specified purposes or for any educational or other public institution, or for the occupation of an officer of any Government authority, body or institution ; and the house could not liave been required for the occupation of a private individual. But the amendment has enlarged the scope of the power of the Controller by providing that the requirement may also be for the occupation of any ind 11vidual. The answer to the first contention based on article 31 (2) or article 19 (1) (f) of the Constitution is a short one. The Constitution came into force on the 26th January, 1950, after the impugned orders were made and at a time when there was nothing like a chapter of Fundamental Rights.

The argument that the requisition in the present case was not for any public purpose and the restriction on the respondent to hold property must be in the interest of the general public presupposes that the Constitution governs the case. This

D. K.

N abhirajiall

The State of Mysore attd 0 then.

Chandrasekhara Aiyar /.

19~2

D. K.

N abhirajiah v.

The State of

My_sore Qnd Others.

Chandrasekhara Aiyar /.

assumption, however, is not well-founded. The order of allotment was made before the Constitution came into force and at a time when the Control Order provided, validly, that a house could be taken for the occupation of a private 'individual.

During the period of 10 days specified in sub-clause (2), the landlord could not let the house or occupy it himself, and on allotment he was bound to deliver up possession to the allottee. His rights as landlord were thus at an end so far as possession was concerned.

Whether retrospective effect could be given to article 13 ( l) of the Constitution arose for decision in Keshavan Madhava Menon v. The State of Bombay(').

Dealing with the argument that the said article rendered void ab initio and for all purposes an earlier law which was inconsistent with fundamental rights, it was laid down by this Court in that case "that such laws existed for all past transactions and for enforcing all rights and tiabilities accrued before the date of the

Constitution." (Per Das J., at page 234).

Mr. Justice Mahajan observed at pages 249 and 250 :-

"It is admitted that after the 26th January, 1950, there has been no infringement of the appellant's right of freedom of speech or expression. In September, 1949, he did not enjoy either complete freedom of speech or full freedom of expression.

It is in relation to the freedom guaranteed in article 19 ( l) of the Constitution to the citizen that the provisions of article 13 (1) come into play. The article does not declare any law void independently of the existence of the freedom guaranteed by Part III. A citizen must be possessed of a fundamental right before he can ask the court to declare a law which is inconsistent with it void; but if a citizen is not possessed of the right, he cannot claim this relief."

These remarks have application here.

\- •

The learned Advocate for the petitioner sought to '>-• get over this difficulty by pointing out that the

( 1)

[1951] S.C:R. 228.

dispossess 1ion took place on 11-4-1950.

This, however, is no answer. The dispossession was a mere consequence which followed under clause 3, sub-clause ( 6), of the Control Order.

The right to possession was lost earlier and the landlord merely held on to the property.

Article 31 (2) does not apply for another reason.

There was no acquisition by the State of the house.

The taking of possession can only be from a person who is entitled to possession. The petitioner landlord lost his right to possession by reason of the Controller's order.

As soon as the allotment Is made, the allottee becomes a tenant and the owner becomes the landlord by reason of sub-clause ( 4) of the Control Order and the learned Advocate-General of the Mysore State contended that a statutory tenancy was thereby created. It is no doubt true that it is provided by sub-clause ( 4) that the terms of the tenancy may be such as may be agreed upon between the landlord and the tenant, and there is no provision, as found in the later Act, as to what is to happen in the event of there being no agreement. If it is correct that a tenancy is brought into existence by the operation of the statute, it is possible that in case the terms are not the subject of any agreement between the landlord and the tenant, the ordinary law of landlord and tenant will apply in the absence of any provision for the fixation of terms by the Controller. But the point does not arise for decision in this case and nothing further need be said about it.

The applicability of sub-clause ( 4) of the Control Order was sought to be avoided in another manner.

It was pointed out that sub-clause (2) referred in Its first part "to the purposes of the Government of Mysore" etc., and in its later part "for the occupation of any officer or any such Government authority, body or corporation, or for the occupation of an individual", but that when we come to sub-clause ( 4) the two categaries are kept distinct or separate and in referring to the second category the Control Order

D. K.

Nabhirajiah v.

The State of

Mysore and Others.

Chandrasekhara Aiyar /,

D. K.

Nabhirajiah v.

The State of Mysore and Others.

Chandrasekhara Aiyar /.

speaks only of the requirement of the house for the occupation by any of the officers and nothing is said about the occupation of any individual.

The amending Act did not introduce the words "or for the occupation of any individual" into sub-clause ( 4). Therefore, it was urged that the whole basis of the Advocate-General's contention about a statutory tenancy being created fell to the ground. At first sight, there seems to be something in the point.

But if sub-clause

(2) is read as a whole, having in view the object sought to be achieved by the legislation, it is fairly clear that there is no such necessary antithesis between the two categories or clauses and that the words "for the purposes" can be so read as to include "occupation" also.

The omission of the words. "for the purposes" in the latter part of sub-clause (2) was perhaps to avoid inartistic phraseology. "For the occupation" certainly reads better than "for the purposes of the occupation".

Ground No. 2 regarding discrimination was not pressed.

Then, we come to ground No. 3. Clause (bb ). of sub-clause (2) of Rule 81 of the Defence of India Rules is in these terms :-

" (bb) for regulating the letting and sub-letting of any accommodation or class of accommodation, whether residential or non-residential, whether furnished or unfurnished and whether with or without board, and in particular,-

( i) for controlling the rents for such accommodation (either generally or when let to specified persons or classes of persons or in specified circumstances) ; ( (ii) for preventing the eviction of tenants and sub-tenants from such_ accommodation in specified circumstances and) ;

(iii) for requiring such accommodation l'<> be let either generally, or to specified persons or classes of persons, or in specified circumstances; ...... "

...

~-'

... -

.. '

\. .

It was urged that the power conferred under this sub-clause applied only to those cases where the house was available for letting or sub-letting and not to cases where a house was not so available, in other words, if the landlord of any premises said that they were required for his own occupation, the Government had no power to requisition the same. Emphasis was laid on the word "regulating".

This, however, is an obviously unsound interpretation to be placed upon the words.

They mean that the Government might provide for and regulate the letting and sub-letting etc., and that such is the scope is clear from the words in sub-clause (2) "may by order provide".

The argument for the petitioner, if accepted, would render the powers entirely nugatory, as it would then be open to every landlord to say that the premises are required for self-occupation, or even that he has already let it out to another and that therefore it is not available for being let.

There was no requisition of property in this case under section 75 (A) of the Defence of India Rules.

The Control Order was promulgated under rule 81 (2)

(bb) which provides for the regulation of letting and sub-letting houses. It is rather the exercise of a police power of regulation in public interest than anything done in the exercise of a power of eminent domain, in which case alone questions relating to compensation and public purpose will arise.

In the course of the arguments, it was suggested that the amendment notification of 4th May, 1949, introducing the words "or for the occupation of any individual" was invalid because the regulation of letting and sub-letting under clause (bb) could only be for the Defence of British India or for the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, and that the taking of property for the occupation of a private individual was outside the scope of the power. Apart from the fact that no such ground has been taken in the petition, it has also to be noted that

195!

D. K.

N abhirajiilh

The State of

Uysore attd Others.

Chattdrasekhara Aiyar /.

D. X..

N abhirajiah v.

The State of

Mysore "1Jd Others.

Chondr•·

sek_horo Aiyor /.

the Control Order purports to have been made not only under clause (bb) of sub-rule (2) of rule 81 of the Defence of India Rules, hut also under the Supplies, SefV!Ccs and Miscellaneous Provisions (Temporary Powers) Act of 1947. We have not got this Act before us and it was not even referred to in the course of the arguments.

Hence, no decision is called for on this point.

The petition fails and is dismissed without any order as to costs.

Petition ditmiued.

Agent for the petitioner: K. R. Kri1hnaswamy.

Agent for the respondents : P. A. Mehta.

UJAGAR SINGH

II.

THE STATE OF THE PUNJAB

and

JAGJIT SINGH

II.

THE STATE OF THE PUNJAB

[SAtYID FAZL ALI, PATANJ ALI SAsTR1, Mu1rnEi.JEA,

DAS and CHANDRASEKHARA AtYAi., JJ. J

Preventive Detention Act (IV of 1950), SJ. 3, 12-Detention order-Non-specification of period of detention-Ground supplied vague and same as in earlier order-Particulars supplied after

'1months-Legality of deteiJtion-Duty to supply particulars lls soon as may he'-Form of detention order-Order signed by Home Secretary-Validity.

Non-specification of any dfinitc period in a detcntioa order made under s. 3 of the PrcventiVc Detention Act, IV of 1950, is not a material omission rendering the order invalid in view of the provisions contained in clauses (4) (a) and (7) (a) of Ar~ 22 of the Constitution and •· 12 of the Act.

An order of detention which expressly states that the Go•ernor of the State concerned was satisfied of the neCCMity of

'_,.

. .

Gurbttchan Sinzh

Umrigar

Police Act

P. K. Chatterjee

P. A. Mehta

D. K. NABHIRAJIAH

THE STATE OF MYSORE AND OTHERS

PATANJALI SASTRI C.J.

MUKHERJEA

DAS

CHANDRASEKHARA AIYAR JJ

Arts. 31

11th April, 1950

Supreme Court

Art. 32

Arts. 31

Art. 31(2)

Art. 31

Art. 32

Constitution of India

S. K. Venkataranga Iyengar

A. R. Somanatha Iyer

R. Ganapathy Iyer

K. Ramaseshayya Chowdhury

D. K.

State of Mysore

State of

Mysore

Chandrasek._hara Aiyar

CHANDRASEKHARA AIYER

article 32

Bangalore City

Aswathanarayana Rao

D. K. Nabhirajiah

2nd September, 1949

Aswathanarayana Rao

13th September, 1949

clause 3

clause 3

Aswathanarayana Rao

Balarnandira

Commissioner of Labour

28th December, 1949

14th March,

1950

High Court of Mysore

section 45

Specific Relief Act

article 226

5th January, 1951

20th March, 1950

clause 3

23rd March, 1950

Clause 3

Chandrasekhara Aiyar

Chandmsekharu Aiyar

Balamandira

10th April, 1950

D. K. Nabhirajiah

article 31

article 19

article 14

Mysore

1st July, 1948

Clause 3

Mysore

Central Government

Government of Mysore

Control Act XXX of 1951

4th May, 1949

article 31

article 19

26th January, 1950

D. K.

N abhirajiall

State of Mysore

D. K.

State of

My_sore Qnd Others.

Chandrasekhara Aiyar

article 13

Das

Mahajan

article 19

article 13

clause 3

Article 31

section 75

State of

Uysore

sek_horo Aiyor

K. R. Kri1hnaswamy

UJAGAR SINGH

STATE OF THE PUNJAB

JAGJIT SINGH

SAtYID FAZL ALI

PATANJ ALI SAsTR1

CHANDRASEKHARA AtYAi

Preventive Detention Act

s. 3


) -·

) .

S.C.R.

SUPREME COURT REPORTS 765

PATANJALI SAsTRr J.-I concur in the order proposed by my learned brother Chandrasekhara Aiyar J.

DAs J.-In view of the ma=ority decision in Case No. 22 of 1950 (The State of Bombay v. Atma Ram Sridhar Acharya), I concur in the order proposed by my learned brother.

Order accordingly.

Petition No. 194 of 1950 Agent for the petitioner : R. R. Biswas.

Agent for the respondent: P. A. Mehta.

Agent for the intervener : P. A. Mehta.

Petition No. 167 of 1950 Agent for the petition: R. S. Narula.

Agent for the respondent : P. A. Mehta.

THE UNION OF INDIA v.

HIRA DEVI AND ANOTHER.

[MEHER CHAND MAHAJAN, CHANDRASEKHARA AIYAR and BosE, JJ.] Civil Procedure code, 1908, s. 60 (k)-Provident Funds Act (XIX of 1925), ss. 2 (a), 3 (1)-Compulsory deposit in Provident Fund-Exemption from attachment-Appointment of receiver- Legality.

A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a Provident Fund due to the judgment debtor.

Whatever doubts may have existed under the earlier Act of 1897, the definition of "compulsory deposit" in s. 2 (a) of the Provident Funds Act (XIX of 1925) clearly includes deposits remaining to the credit of the subscriber or depositor after he has retired from service.

Arrears of salary and allowances stand upon a different footing and are not exempt from being proceeded against in execution.

CML

APPELLATE

JURISDICTION: Civil Appeal No. 132 of 1951.

Appeal by Special Leave from the Judgment and Decree dated 17th May, 1950, of the High Court of Judicature at Calcutta (Harries C.J. and Sinha J.) in Appeal No. 41 of 1950 arising out of the Order of

Ujagar Singh

The State of

Punjab.

Chandrasekhara Aiyar /.

May 21.

The Union of India v.

Hira Devi and Another. -·- Chandra- . sekhara Aiyar /.

Banerjee J. dated 19th December, 1949, in Suit No. 1132 of 1948.

C. Setalvad, Attorney-General for India

(B. Sen, with him) for the appellant.

Naziruddin Ahmad (Numddin Ahmad, with him) for respondent No. I.

S. N. Mukherjee for respondent No. 2. 1952.

May 21.

The Judgment of the Court was delivered by

CHANDRASEKHARA

AIYER J.-This Court granted special leave to appeal m this dse on the Government agreel11g to pay the costs of the respondents in respect of the appeal in any event. - The decree-holder was a lady named Hira Devi.

The judgment debtor was one Ram Grahit Singh, who retired on 31st January, 1947, as a Head Clerk m the Dead Letter Office, . Calcutta. A money decree was obtained against him on 30th July, 1948.

On !st February, 1949, a receiver was appointed for collecting the moneys standing to the credit of the judgment-debtor in a Provident Fund with the Postal authorities.

The Union of India intervened with an application dated 20th September, 1949, for setting aside the order appointing the receiver.

Mr.

Justice Banerjee dismissed the application of the Union of India, holding that a receiver could be appointed for collecting the fund. On appeal, Trevor Harries C. J. and Sinha J. upheld his view.

From the facts stated in the petition filed by the Union of India before the High Court, it apears that a sum of Rs. 1,394-13-1 represents arrears of pay and allowances due to the judgment-debtor and a sum of Rs. l,563, is the compulsory deposit in his P10vident Fund account.

Different c011s1derations will apply to the two sums, though in the lower court the parties seem to have proceeded on the footing that the entire sum was a "compulsory deposit" within the meaning of the Provident Funds Act, 1925.

The main question to be decided is whether a receiver can be appointed in execution in respect of Provident Fund money due to the judgment-debtor.

' .._.

. '

• . .

' •

) -

\ .

., ..

Compulsory deposit and other , sums in or derived from any fund to which the Provident Funds Act XIX of 1925 applies are exempt from attachment and sale under section 60 (k), Civil Procedure Code.

" Compulsory deposit " is thus defined in section 2(a) of the Provident Funds Act XIX of 1925:-

"Compulsory deposit means a subscription to, or deposit in a Provident Fund which under the rules of the Fund, is not, until the happening of some specified contingency repayable on demand otherwise than for the purpose of the payment of premia in respect of a policy of life insurance (or the payment of subscriptions or premia in respect of a family pension fund), and includes any contribution and any interest or increment which has accrued under the rules of the fund on any such subscription, deposit, contribution, and also any such subscription, deposit, contribution, interest or increment remaining to the credit of the subscriber or depositor after the happening of any such conti:hgency."

Such a deposit cannot be assigned or charged and is not liable to any attachment.

Section 3 (1) of the said Act provides :-

3. (1) "A compulso1ry deposit in any Government or Railway Provident Fund shall not in any way be capable of being assigned or charged and shall not be liable tO attachment under any decree or order of any CivH, Revenue or Criminal Court . in respect of any debt or liability incurred by the subscriber or depositor, and neither the Official Assignee nor any receiver appointx:d under the P110vincial Insolvency Act, 1920 shall be entitled to, or have any claim on any such compulsory deposit."

It is obvious that the prohibition against the assignment or the attachment of such compulsory deposits is based on grounds of public policy.

Where the interdiCtion is absolute, to allow a judgment creditor to get at the fund indirectly by means of the appointment of a receiver would be to circumvent the statute. That such a frustration of the very object Qf

The Union of India v.

Hira Devi and Another.

Chandrasekhara Aiyar /.

The Union of India v.

Hira Devi and Another.

Chandrasekhara Aiyar ].

the legislation should not be permitted was laid down by the Court of Appeal as early as 1886 in the case of Lucas v. Harris('), where the question arose with reference to a pension payable to two officers of Her Majesty's Indian Army. Section 141 of the Army Act, 1881 provided :

"Every assignment of, and every charge on, and every agreement to assign or charge any ...... pension payable to any officer or soldier of Her Majesty's forces, or any pension payable to any such officer ...... or to any person in respect of any military service, shall except so far as the same is made in pursuance of a royal warrant for the benefit of the family of the person entitled thereto, or as may be authorised by any Act for the time being in force, be void."

In that case, the appointment of a receiver to collect the pension was in question. Lindley, L.J., observed :-

"In considering whether a receiver of a retired officer's pension ought to be appointed, not only the language but the object of section 141 of the Army Act, 1881 must be looked to; and the object of the section would, in my opinion, be defeated, and not advanced, if a receiver were appointed."

Lord Jusdce Lopes reiterated the same thing in these words :-

"It is beyond dispute that the object of the legislature was to secure for officers who had served their country, a prv 'ision which would keep them from want and would enable them to retain a respectable social position.

I do not see how this object could be effected unless those pensions were made absolutely inalienable, preventing not only the person himself assigning his interest in the pension, but also preventing the pension being seized or attached under a garnishee order, or by an execution or other process of law.

Unless protection is given to this extent the object which the legislature had in view is frustrated, and a strange anomaly would exist.

A person with a

( 1) 18 Q.B.D. 127.

<. .... _

. 1.

l -

) '

pension would not bt able to utilise his pension to pay a debt beforehand, but immediately his creditor had obtaineci judgment might be deprived of his pension by attachment, equitable execution, or some other legal process. It is impossible . to suppose that the legislature could have intended such an anomaly."

Section 51 of the Civil Procedure Code no doubt recognises five modes of execution of a decree and one of them is the appointment of a receiver.

Instead of executing the decree by attachment and sale, the Court may appoint a receiver but this can only be in a case where a receiver can be appointed.

The Provident Fund money is exempt from attachment and is inalienable.

Normally, no execution can lie against such a sum.

The learned Judges in the Court below rested their view on the authority of the decision of the Privy Counc'il in Rajindra Narain Singh v. Sundara Bibi(1).

This decision has caused all the defficulty and has created a current of thought that even though the property may not itself be liable to attachment, a receiver can be appointed to take possession of the same and to apply the income or proceeds in a particular manner including the payment of the debts of the judgment-debtor.

It is necessary, therefore, to examine the facts of the case carefully and find out whether the proposition sought to be deduced from it can be justified as a principle of general application apart from the particular circumstances. The original decision of the Allahabad High Court from which the appeal was taken before the Judicial Committee is reported in Sundar Bibi v. Raj Indranarai:n Singh(2).

In a suit between , two brothers there was a compromise. to the effect that the judgment-debtor shall possess and enjoy the immoveable properties mentioned in the list and estimated to yield a net profit of Rs. 8,000 a year without power of transfer during the lifetime of his brother, Lal Bahadur Singh, he undertaking to pay certain public exactions and other dues

(1) (1925) 52 I.A. 262.

(2) (1921) 43 All. 617.

The Union of India v.

Hira Devi and Another.

Chandrasek hara

Aiyar /.

Tlte Union of

India

Hjra Devi oad Another.

Chandrasek_hara

Aiyar ].

to his brother, Lal Bahadur Singh, amounting in all to Rs. 7,870-11-6, in four equal instalments per annum, each oo be paid a month before the Government revenue, falls due. The arrangement was stated to be "in lieu of his maintenance". When the judgment debtor's interest in the properties was sought to be attached and sold, he raised the objection that they were exempt from attachment and sale by reason of clause (n) of Section 60 of the Code which speaks of "a right to future maintenance". The High Court held that the words employed in sub-clause (n) contemplated a bare right of maintenance and nothing more-a right enforceable by law and payable in the future-and that inasmuch as in the case before them the properties had been assigned to the judgmentdebtor in lieu of his maintenance, it was not such a right which alone was exempt from attachment and sale. They thought that it was a fit case for the appointment of a receiver and remitted the execution petition to the subordinate judge for the appointment of a receiver after determining the allowance payable to the judgment-debtor for his maintenance.

With this conclusion of the High Court the Judicial Committee concurred. But they also expressed the view that they did not agree with the High Court on the subject of the actual legal position of the right of maintenance conferred upon the judgmentdebtor. Taking the prayer of the judgment creditor to be that the right of maintenance be proceeded against, their Lordships observed that the right was in point of law not attachable and not saleable. If it was an assignment of properties for maintenance, the amount of which was not fixed, it was open to the judgment-creditor to get a re.ceiver appointed subject to the condition that whatever may remain after making provision for the maintenance of the judgmentdebtm should be made available for the satisfaction of the decree debt. The right to maintenance could not be attached or sold.

In so far as the decree-holder sought oo attach this right and deprive the judgmentdebtor of his maintenance, he was not entitled to do

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' --

so, but where his application for the appointment of a receiver was more comprehensive and sought to get at any remaining income after satisfying the maintenance claim, the appointment of a receiver for the purpose was justified.

The decision of the Privy Council does not appear to lay down anything beyond this. In our opinion, it is not an authority for the general proposir tion that even though there is statutory prohibition against attachment and alienation of a particular species of property, it can be reached by another mode of execution, viz., the appointment of a receiver.

On the other hand, it was pointed out in the case of Nawab Bahadur of Murshidabad v.

Karnani Industrial Bank Limited (1) that as the Nawab had a disposing power over the rents and profits assigned to him for the maintenance of his title and dignity without any power of alienation of the properties, no question of public policy arose and tl1at a receiver of the rents and profits was rightly appointed. This line of reasoning indicates clearly that in cases where there is no disposing power and the statute imposes an absolute bar on alienation or attachment on grounds of public policy, execution should not be levied.

Understood as mentioned above, Rajindra Narain Singh's case creates no difficulty.

We shall now refer to the decision that followed or distinguish - ed the same. In The Secretary of State for India in Council v. Bai Somi and Another(2), the maintenance of Rs. 96 per annum was made urider a compromise decree a charge on the house which was to belong to the defendant. The court-fee due to Government was sought to be recovered by attachment of the house.

The right to attach was negatived; the house could not be attached as it belonged to the defendant; and the plaintiff's right to maintenance could not be attached under section 60, clause (1). In cleating with a prayer made by the Government for the first time in the High Court for an order appointing a receiver of the plaintiff's maintenance, Beaumont C. J. and

(1) (1931) 58 I.A. 215. (') (1933) 57 Bom. 507.

The Union of India v.

Hira Devi and Another.

Chandrasekhara Aiyar /.

The Union of India v.

Hira Devi and Another.

Chandrasekhara Aiyar /.

another learned Judge held that even this could not be done. The Chief Justice said "If these exempted payments can be reached in execution by the appointment of a receiver by way of equitable execution, the protection afforded by the section is to a great extent lost".

They steered clear of Rajindra Narain Singh's case by stating that there was in the judgment of the Board no clear expression of opinion and there was doubt whether the allowance then in question was maintenance or not. The Madras High Court in The Secrt:· tary of State for India in Council v. Sarvepalli Venkata Lakshmamma (') has dealt with a question similar to the one in The Secretary of State for India in Council

v. Bai Somi and Another (') but it merely referred to the ruling in Rajindra Narain Singh's case without dealing with the facts or the reasoning. It throws no light.

The case in Janakinath v. Pramatha Nath(") was a decision by a single Judge and stands on the same footing as the Madras case. There is nothing else on this subject in the judgment than the short observation, "the Provident Funds Act does not in my opinion prohibit the appointment of a receiver of the sum lying to the credit of the deceased in the Provident Fund." Possibly the view was taken that on the death of the employee and in the absence of any dependent or nominee becoming entitled to the fund under the rules, it became money payable to the heirs of the deceased and lost its original nature of being a compulsory deposit.

The case of Dominion of India, representing E. I. Ry. Administration and another v.

Ashutosh Das and Others'(4 ) refers no doubt to Rajin-· dra Narain Singh's case but does not discuss it in any detail.

Roxburgh J. merely states "surely it is an improper use of that equitable remedy to employ it ID avoid a very definite bar created by statute law to achieving the very object for which the receiver i• appointed".

The decision in Ramprasad v. Motiram(') related to the attachment and sale in execution of a

( 1) (1926) 49 Bad. 567.

( 2) (1933) 57 Born. 507.

( 3) (1940) 44 C.W.N. 266.

(4) (1950) 54 C.W.N. 254.

( 5) (1946) 25 Pat. 705

' '

. J

. 't

...

money decree of the interest of a khoposhdar in a khorposh grant which was heritable and transferable.

It affords us no assistance.

The learned counsel for the respondents relied on three decisions of the Privy Council as lending him support.

One is Nawab Bahadur of Murshidabad's case(1) already referred to.

Vibhudapriya T hirtha Swamiar v.

Laksh.mindra Thirtha Swamiar(2) and Niladri Sahu v. Mahant Chaturbhuj Das and Others(3) are the other two cases and they relate to maths and alienations by way of mortgage of endowed properties by the respective mahants for alleged necessity of the institutions.

They bear no analogy to the present case. The mahants had a beneficial interest in the properties after being provided with maintenance. A receiver could be appointed in respect of such beneficial interest so that the decrees obtained may be satisfied.

With great respect to the learned Judges of the Court below, we are of the opinion that execution cannot be sought against the Provident Fund money by way of appointment of a receiver.

This conclusion does not, however, apply to the arrears of salary and allowance due to the judgmentdebtor as they stand upon a different legal footing.

Salary is not attachable to the extent provided in Section 60, clause (1), Civil Procedure Code, but there is no such exemption as regards arrears of salary.

The learned Attorney-General conceded that this portion of the amount can be proceeded against in execution.

The Provident Fund amount was not paid to the subscriber after the date of his retirement 'in January 1947.

This, however, does not make it any . the less a compulsory deposit within the meaning of the Act. Whatever doubt may have existed under the earlier Act of 1897 the decisions cited for the respondent, Miller v. B. B. & C. I. Railway(4 ) and Raj

(1) (1931) 58 I.A. 215.

(8) (1926) 53 I.A. 253.

( 2) (1927) 54 I.A. 228, ( 4) (1903) 5 Bom. L.R. 454.

The Union of India v.

Hira Devi and Another.

Chandrasekhara Aiyar /.

The Union of India v.

Hira Devi and Another.

Chandrasekhara

Aiyar /.

Kumar Mukharjee v. W. G. Godfrey(') are under that Act, the meaning has now been made clear by the definition in section 2 of the present Act; any deposit

"remaining to the credit of the subscriber or depositor after the happening of any such contingency" is also a compulsory deposit; .and the contingency may be I retirement from service.

In the result, the appeal is allowed and the order of the lower court dated 1st February, 1949, appointing a receiver is set aside as regards the Provident Fund amount of Rs. 1,563 lying to the credit of the judgment-debtor. Under the condition granting special leave, the Government will pay the 1st respondent's costs of this appeal.

Appeal allowed.

Agent for the appellant : P. A. Mehta.

Agent for the respondent No. 1 : Naunit Lal. Agent for the respondent No. 2 : P. K. Chatterjee.

(') A.LR. 1922 Cal. 196.

GIPN-S4-8 s.c.India/71-18-12-72-700,

',/ ·.

I "!

' .J •

.r r

If-\ 1,

I ' '

R. R. Biswas

P. A. Mehta

R. S. Narula

THE UNION OF INDIA

HIRA DEVI AND ANOTHER

MEHER CHAND MAHAJAN

BosE, JJ.

s. 60

Provident Funds Act

ss. 2

s. 2

Provident Funds Act

Harries C.J.

Sinha

State of

Punjab

Banerjee

C. Setalvad

B. Sen

Naziruddin Ahmad

Numddin Ahmad

S. N. Mukherjee

CHANDRASEKHARA

AIYER

Hira Devi

Ram Grahit Singh

31st January, 1947

Calcutta

30th July, 1948

st February, 1949

Union of India

20th September, 1949

Trevor Harries

Provident Funds Act, 1925

Funds Act XIX of 1925

section 60

Civil Procedure Code

section 2(a)

Funds Act XIX of 1925

Section 3

Insolvency Act, 1920

Section 141

Army Act, 1881

Lindley

section 141

Army Act, 1881

Jusdce Lopes

Section 51

Allahabad High Court

Union of India

Hira Devi

Chandrasek hara

Hjra Devi

Section 60

Rajindra Narain Singh

section 60

Beaumont

Madras High Court

Madras

Provident Funds Act

Roxburgh

Section 60

Civil Procedure Code

section 2

1st February, 1949

Naunit Lal

P. K. Chatterjee


S.C.R.

SUPREME COURT REPORTS

MAHABIR GOPE AND OTHERS

HARBANS NARAIN SINGH AND OTHERS.

[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR

and VIVIAN BosE JJ.l

Bihar Tenancy Act, 1937, ss. 5(2), 20, 21-Zuripeslzgi lease-- Lease .by mortgagee for a term of 3 years-Lease continuing in possession for over 30 years-Whether acquires occupancy rights-- Construction of lease-Mortgagee's power to lease-Limitations-- Transfer of Property Act, (IV of 1882), s. 76 (a) and (e).

As a general rule a person cannot transfer or otherwise confer a better title on another than he himself has and a mortgagee cannot therefore create an interest in mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, a mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor's interestJ;, such as by giving a lease which may enable the tenant to acquire permanent occupancy rights in the land, thereby defeating the mortgagor's right to khas possession.

A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period is an exception to the general rule, but to fall within this exception the settlement of the tenant by the mortgagee must have been a bona fide one.

The exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.

Where a zuripeshgi ijara deed contained the following clause ; "It is desired that the ijaradars should enter into possession and occupation of the share let out in ijara (being the klzudkasht land under his own cultivation), cultivate them, pay 2 as. as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijara interest" and the kabuliat executed by the tenant to whom the lands were leased by the mortgage for a period of 3 years referred to the ijara deed and contained an express provision that he (the tenant) would give up possession of the tika land on the expiry of the lease without urging any claim on the score that the lands were his kasht lands : Held, confirming the decision of the High Courr, that the settlement

<.was not a bona fide one and the successors of the tenant (the defendants) did not acquire permanent rights of occupancy in

April 14. ·

Makabir Gope

and Others

HM!Jans Narain Singh and Others.

the demised lands under the Bihar Tenancy Act even though the lands had been in the ocr:upation of the tenant and his successors for over 30 years after the expiry of the lease.

Held further, that the defendants could not acquire occupancy rights under sections 20 and 21 of the Bihar Tenancy Act as the mortgagee was neither a "proprietor" nor a "tenure holder .. or "under-tenure-holder" 3.nd the tenant and his successors were not, therefore, "settled raiyats" within the meaning of section 5, cl. (2), of the said Act.

Manjhil-Lal Biswanath Shah Dea v. Shaikh Mohiuddin (1.L.R. 24 Cal. 272), Babu Bairo Nath Ray v. Shanke Pahan (I.L.R. 8 Pat. 31) and Binda Lal Pakrashi and Others v. Kalu Pramanik and Others (I.L.R. 20 Cal. 708) distinguished.

CrvrL

APPELLATE JuRrsorsCTION Civil Appeal

No. 143 of 1951.

Appeal by special leave from the judgment aod decree dated 23rd March, 1950, of the High Court of Judicature at Patna (Reuben and Jamuar JJ.) in appeal from Original Decree No. 206 of 1946 arising out of a decree dated 31st January, 1946, of the Subordinate Judge at Patna in Title Suit No. 55/4 of 1943-45.

Saiyid Murtaza Faz/ Ali for the appellants.

N. C. Chatterjee (A. N. Sinha, with him) for the respondents Nos. 1 to 9.

B. K. Saran for the respondents Nos. 11 to 16.

1952. April 14. The Judgment of the Court was delivered by

CHANDRASEKHARA ArYAR J.-This is an appeal by the defendaots from a decree of the Patna High Court reversing a decree of 'the Subordinate Judge's Court at Patna, and decreeing the plaintiffs' suit for possession against the defendant first party who may be called for the sake of convenience as 'the Gopes'.

The lands were k hudk has ht lands, partly belonging to the plaintiffs first party and partly belonging to Mussammet Aoaro Kuer, fn;>m whom the plaintiffs second and "third parties trace title. The ancestors of plaintiffs first party gave on 28-9-1899 an ijara with possession to one Lakhandeo Singh an ancestor of the defendant second party under Exhibit I (b) for a term

.• >.

-0f six years from 1307 Fasli to 1312 Fasli for Rs. 540.

The poshgi money was to be repaid in one lump sum at the end of Fasli 1312. If there was no redemption then the ijara was to continue in force till the money was repaid.

M ussammat Anaro Kuer gave her share in ijara to the same Lakhandeo Singh orally on 10th June, 1905, for a period of three years for Rs. 542.

Lakhandeo Singh, who is represented now by the <lefendant second party, made a settlement of the land thus got by him (8.26 acres or 13 bighas in all) with one Ram Lal Gope an ancestor of the defendant first party for a period of three years from Fasli 1315 to Falsi 1318.

There was a patta in favour of the tenant and a Kabuliyat in favour of the landlord. This was in 1908.

The mortgage was redeemed in June 1942 by payment in proceedings under section 83 of the Transfer of Property Act, When the plaintiffs4 went to take possession, they were resisted by the' Gopes (defendant first party), and after unsuccessful criminal proceedings, the plaintiffs filed the present suit.

The Subordinate Judge dismissed it, holding that the Gopes were raiyatJ having acquired permanent occupancy rights in the'. lands as the result of the settlement by the mortgagee, Lakhandeo Singh. On appeal the High Court set aside this decision and gave the plaintiffs a decree for possession on the finding that the defendants were not raiyats and had no permanent rights of occupancy. This court granted to the defendants special leave to appeal.

The suit was in the alternative for recovery of the value of the lands as compensation or damages from the defendant second party jn case it was found that the defendant first party could not be ejected.

The trial court decreed this alternative claim and awarded to the plaintiffs compensation at the rate of Rs. 200 per bigha.

The defendant second party carried the matter in appeal to the High Court and succeeded.

But we have nothing to do with this matter in the present appeal.

At the trial, the plaintiffs alleged and maintained that the lands were their zirat lands within the meaning

Mahabir Gope

and Others

H arhans Narain

Singh and Others.

Chandrasek harp

Aiyr /.

t9'i2 ·..;;:.;_,;_ Mahabir dope

and Others

v. llarbans "l\f arain Singh and Others. -·- Chatidrasekhara

Aiyat' /.

of section 116 of the Bihar Tenancy Act and that the defendant first party could acquire no rights of occupancy in the same.

The Subordinate Judge found against this contention and held that they were khud kasht or bal(asht fands of the proprietor, in which rights of occupancy can be acquired.

He negatived the plea of the defendants that they were their ancestral raiyats lands; He also held that there was no collusion between the mortgagee Lakhandeo Singh and Ram Lal Gope in the matter of settlement of lands.

It is on the basis of these findings which were accepted by both the parties that the hearing of the appeal proceeded before the High Court.

It was held by the Privy Council in Bengal Indigo Company v. Roghobur Das('). that "a zuripeshgi lease

~ is not a mere contract for the cultivation of the land 'tat a rent, but is a security to the tenant for the money

 advanced". They . observed, speaking of the leases before them, that "the leases in question were not mere contracts for the cultivation of the land let; but that they were also intended to. constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced, and interest thereon.

The tenants' possession under them was, in part at least, not that of cultivators only, but that of creditors operating repayment of the debt due to them, by means pf their security." These words apply to the ijara deed before us; its dominant intention was to provide a security for the loan advanced and not to bring into existence any relationship of landlord and tenant. .

The general, rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has..

A mortgagee cannot, therefore, create an . interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee.

Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; and he must not commit any act which is destructive

(1) (1897) 24 Cal. 272.

' '

()t permanently injurious to the property; ; ee section 76, sub-clauses (a) & (e) of the Transfer of Property Act.

It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by hini must come to an end at redemption.

A mortgagee cannot during the subsistence of the mortgagee act in a manner detrimental to the mortgagor's interests such as by giYing a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor's right to khas possession; it would be an act which would fall within the provisions of section 76, subdause ( e), . of the Transfer of Property Act. ·

A permissible settlement by a m()rtgagee in posses~ sion with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statut.e based on the nature of the land and possession for the requisite period . is a differerit matter altogether.

It is an exception to the general rule.

The tenant cannot be ejected. by the mortgagor even after the redemption of the mortgage. fie may become an occupancy raiyat in some cases and a non-occupancy raiyat in other cases.

But the settlement of the tenant by the mortgagee must have been a bona fide one. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.

Where .all the zamindari rights are given to the mortgagee, it may be possible to infer on the proper construction of the document that he can settle lands with tenants in the ordinary course of management and the tenants might acquire certain rights in the land in their capacity as tenants. In the case of Manjhil-Lal Biswa Nath Shah Deo v. Sheikh Mohiuddin (1), there was a bona fide settlement of mortgaged rayati land by the mortgagee with tenants and it was held that the mortgagor was not entitled to evict them after redemption.

The earlier decision of Babu Bhairo Nath Ray

v. Shanke Pahan(2), related to bakasht lands, and

(1) (1927) 8 Pat. L.T. 92.

(2) (1929) I.L.R. 8 Pat. 31.

-·· .... ,.,-.-.1 ·r.

Mahabir Gopi

ana Otlteri

'Ve ' \ H arbans Narain

Sif!gh and Others:

M4habir Gope

anrl Others

Y. lfarbans !Varain

Singh. and, Others.

Chandrasek.hara

Aiyar 1there was no provision in the zuripeshgi lease restricting the power of the mortgagee lessee as regards settlement of tenants.

Khudkasht lands and bakasht lands are really in the nature of raiyati lands which come into the possession of the proprietor by surrender, abandonment or purchase.

In the present case, we have the following clause in the ijara deed: "It is desired that the ijaradar should enter into possession and occupation of the share let out in ijara (being the Khudkasht land under his own cultivation), cultivate them, pay 2 annas as reserved rent year after year to us, the executants, and appropriate the produce thereof year after year on account of his having the ijaradari interest." This term disentitles the mortgagee from locating tenants on the land mortgaged.

Ram Lal Gape, the grandfather of the defendants first party, who executed the kabuliat in 1908 must have known of the title of Lakhandeo Singh the mortgagee and the terms under which he held the lands under the registered zuripeshgi ijara deed and this is most probably why the tenant not only took the lease for a period of 3 years, but expressly undertook to give up possession over the thika lands on .the expiry of the period of lease without urging any claim on the score that the lands were his old kasht lands. His kabuliat (Exhibit 11) in fact refers to Lakhandeo Singh' s ijaradari interest.

In view of these facts, .the learned Judges of the High Court stated that they were not prepared to hold that the settlement was a bona fide one or the mortgagee was within llis rights in settling these lands.

Strong reliance was placed for the appellants on the Full Bench decision -Binad Lal Pukrashi and Others v.

Kalu Pramanik and OtMrs(') where it was held that a person inducted into possession of land as a raiyat even by a trespasser became a non-occupancy raiyat within the meaning of section 5, sub-section, 2 of the Bengal Tenancy Act and was protected from ejectrnent.

But this decision has been subsequently

(1) (1893) I.L.R. 20 Cal. 708.

explained away in several cases as based on the propo--

sition that the rights must have been bona fide acquired by them from one whom they bona fide believed to have the right to let them into possession of the land.

Such, however, is not the case here, in view of the recitals in the ijara deed in favour of Lakhandeo Singh and the kabuliat by Ram Lal Gope.

Sections 20 and 21 of the Bihar Tenancy Act were referred to by the learned counsel for the appellants in the course of his arguments and he pointed out that the land in this case was held continuously by his clients and their predecessors from 1908 to 1942, when they were sought to be ejected. For these sections to apply, we must be in a position to hold that the appellants were "settled raiyats". "Raiyats" 1s defined in sub-clause 2 of section 5 as meaning "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 ...... " Sub-clause 3 provides that a person shall not be deemed to be a raiyat unless he holds land either immediately under a proprietor or immediatelv under a tenure-holder.

Lakhandeo Singh was not' a "proprietor" by which term is meant a person owning, whether in trust or for his own benefit, an estate or part of an estate: he was only a mortgagee. Nor was he a tenure-holder or under-tenureholder, as he does not comply with the definition given in sub-clause (1) of section 5, namely, a person who had acquired from a proprietor or from another tienure-holder a right to hold land for the purpose of collecting rents, or for the purpose of bringing the land under cultivation by establishing tenants on it.

Such proof as there is in this case only goes to show that the lands were under the cultivation of the plaintiffs and that they were made over to the possession of the mortgagee so that he might cultivate them himself.

Hence, Ram Lal Gope could not claim that he was a settled raiyat of the village and that under the statute he secured occupancy rights in the lands which he took on lease from Lakhandeo Singh.

Mahabir Gope

and Others

v. llarbans lllarain

Singh and Others.

Chandrasekhara Aiyar /.

Mahabir Gape

and Others.

Harbans Narain

Singh and Others.

Chandrasek_hara

 Aiyar /.

April 2.

Lastly, it was urged that the ijara by Mst. Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share (3.97 acres) was concerned and that the rights of the parties as regards this area .would stand on a different footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party.

This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction, the rights and liabilities, whatever they were, being common to both. We cannot allow the poiilt to be taken now.

The result is that the High: Court's decree 1s. confirmed and the appeal is dismissed with: costs of the plaintiffs-respondents. There will be no order as; to costs of the other respondents.

Appeal dismissed.

Agent for the appellants: S. P. Varma.

Agent for the respondents Nos. 1 to 9: M. M Sinha.

Agent for the respondents Nos. 11 to 16 :.

K_. L. Mehta.

RAJA BHUPENDRA NARAIN SINGHA BAHADUR

ti.

MAHARAJ BAHADUR SINGH AND OTHERS

(Civil Appeals Nos. 68 to 92 of 1951).

[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and V 1v1AN Bo SE JJ.]

Equitable set-off-Suit by patnidar against zemindar for possession of land with mesne f"ofits-Decree t"n favour of patnidar- Claim by 'zemindar to set off against m.esne profits rent_, revenue and cesses which accl'ited after deUvCry of t:ossession-Maintainability.

: Where a patnidar has obtained a decree against his zcmindar for' possessiori .of reSU1ned challkld?ri chakran lands with mesnc profits from the date on which the zemihdar wrongfully took.

MAHABIR GOPE AND OTHERS

HARBANS NARAIN SINGH AND OTHERS

MEHR CHAND MAHAJAN

CHANDRASEKHARA AIYAR

VIVIAN BosE JJ

Bihar Tenancy Act, 1937

ss. 5(2), 20, 21

Limitations-- Transfer of Property Act

s. 76

Makabir Gope

HM!Jans Narain Singh

sections 20 and 21

section 5

Reuben

Jamuar

Murtaza Faz/ Ali

N. C. Chatterjee

A. N. Sinha

B. K. Saran

CHANDRASEKHARA ArYAR

Patna High Court

Subordinate Judge's Court at Patna

Aoaro Kuer

Lakhandeo Singh

Anaro Kuer

10th June, 1905

Ram Lal Gope

Fasli

Falsi

section 83

Transfer of Property Act

Gopes

llarbans

section 116

section 76

Transfer of Property Act

section 76

Transfer of Property Act

Mahabir Gopi

Chandrasek.hara

Ram Lal Gape

section 5

Sections 20 and 21

clause 2

section 5

clause 3

section 5

Mahabir Gope

Chandrasekhara Aiyar

Mahabir Gape

Harbans Narain

Singh

Chandrasek_hara

 Aiyar

Anaro Kuer

S. P. Varma

M. M Sinha

K_. L. Mehta

RAJA BHUPENDRA NARAIN SINGHA BAHADUR

MAHARAJ BAHADUR SINGH

CHAND MAHAJAN


Mahabir Gape

and Others.

Harbans Narain

Singh and Others.

Chandrasek_hara

 Aiyar /.

April 2.

SUPREME COURT REPORTS [1952]

Lastly, it was urged that the ijara by Mst. Anaro Kuer was admittedly an oral transaction and there was no proof of any prohibition against the settlement with tenants so far as her share (3.97 acres) was concerned and that the rights of the parties as regards this area .would stand on a different footing from the rights in respect of the 4 acres and 29 cents belonging to the plaintiff first party.

This point was not taken in the courts below where the two ijaras given to Lakhandeo Singh were dealt with as if they were part and parcel of one and the same transaction, the rights and liabilities, whatever they were, being common to both. We cannot allow the poiilt to be taken now.

The result is that the High: Court's decree 1s. confirmed and the appeal is dismissed with: costs of the plaintiffs-respondents. There will be no order as; to costs of the other respondents.

Appeal dismissed.

Agent for the appellants: S. P. Varma.

Agent for the respondents Nos. 1 to 9: M. M Sinha.

Agent for the respondents Nos. 11 to 16 :.

K_. L. Mehta.

RAJA BHUPENDRA NARAIN SINGHA BAHADUR

ti.

MAHARAJ BAHADUR SINGH AND OTHERS

(Civil Appeals Nos. 68 to 92 of 1951).

[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR and V 1v1AN Bo SE JJ.]

Equitable set-off-Suit by patnidar against zemindar for possession of land with mesne f"ofits-Decree t"n favour of patnidar- Claim by 'zemindar to set off against m.esne profits rent_, revenue and cesses which accl'ited after deUvCry of t:ossession-Maintainability.

: Where a patnidar has obtained a decree against his zcmindar for' possessiori .of reSU1ned challkld?ri chakran lands with mesnc profits from the date on which the zemihdar wrongfully took.

...

possession of them, the zemindar is not entitled to deduct by -1952 way of equitable set-off from the amount of mesne profits pay- . ---- able by him under the decree, the amounts due to him on account Ra1a B_uP.endra

of rent, revenue and cesses for a period subsequent to the date Narain Szngha of delivery_ of possession of the lands inasmuch _as the two cross Bahadur demands do not arise out of the same transaction. The transac- .-v. tion which led to the plaintiff's demand for mes_ne profits resulted • Maharaj from the defendant's wrongful act as trespasser, while the Bahadur Singh transaction which gave rise to the zemindar's demand arose out and Others. ofthe relationship of landlord and tenant and the obligations resulting therefrom.

Mahajan J.

_ CrvrL

APPELLATE JrnusmcTION : Appeals from the judgments arid -decrees dated the 23rd February, 1945, of the High Court of Judicature at Calcutta (Akram and Blank JJ.) in Second Appeals Nos. 861 to 885 of 1939 from the judgments and decrees dated the 16th December, 1938, of the Court of the District Judge, Birbhum, in Title Appeals Nos. 23 'to 47 of 1938.

Sitaram Bannerjee (Arun Kumar Dutta and Amiya Kumar Mukherjea, with him) for the appellant in Civil Appeals Nos. 68 to 74 of 1951.

Urukramdas Chakravarthy (S. 'fl/. Mukherjee, with him) for the respondent No .. 1. in Civil Appeals Nos. 68 to 74 of 1951.

- ·- Sitaram Bannerjee (Arun Kutnar Dutta and Amiya Kumar Mukherjea, with him) for the appellant in Civil Appeals Nos. 75 to 92 of 1951.

Panchanan Chose (Chandra Nath Mukherji, with him) for the respondents Nos. 1 to 3 in Civil Appeals Nos. 75 to 92 of 1951.

1952. April 2. The Judgment of the Court was

delivered by - -

MAHAJAN J.-These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February, 1945, reversing the judgment and decrees passed by the District Judge -of Birbhum dated - 16th December, 1938. The

principal questions for determination are the same m

Raja Bhupendra Narain Singha

Bahadur v.

Maharaj IJahadur Singh and Others.

Mahajan /.

all of them and can be conveniently disposed of by one judgment.

It is necessary to set out briefly the history of this half a century old litigation.

The seven suits out of which arise Appeals Nos. 68 to 74 were filed iH September, 1904, by Maharaja Bahadur Singh, in the court of the different Munsifs at Rampurhat, against Raja Ranjit Singh Bahadur, deceased, and others, for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899. till recovery of possession.

It was alleged that the lands in the several suits were chowkidari chakran lands within the plaintiff's patnidari, granted to his predecessors in interest on 14th November, 1853, by the ancestors of the defendant, that as the lands were in the possession of village watchman on service tenures, they were excluded from assessment of land revenue and no rent was paid on them, that in the year 1899 under the provisions of sections 50 and 51 of Bengal Act VI of 1870 Government resumed the lands, terminated the service tenures and settled them with the zamindar, that in this situation the plaintiff as patnidar became entitled to their actual physical possession, that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed.

The suits were decreed on 17th August, 1905, and 19th August, 1905, by the two courts respectively and the decisions were affirmed on appeal by the District Judge. On special ppeal to the High Court, the suits were remanded for trial on the question of limitation, and after remand they were dismissed by the trial court and the Court of appeal as barred by limitation. On second appeal, it was held that the suits were within limitation and were then decreed for the second time. This decision was affirmed on appeal to His Majesty in Council.

The plaintiff actually obtained possession of the lands invol:ved in these suts in August, 1913. An application was made for ascertainment of mesne profits on

' )•

6th November, 1918.

This was resisted by the defendant and it was pleaded that the plaintiff was not entitled to interest on mesne profits, that the zamindar was entitled to receive the profits of the disputed lands and that deduction should be made out of the amount of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him. Five years later, on

,;. 24th June, 1927, another set of objections was filed

.....

by the zamindar claiming deduction out of mesne profits 'by way of equitable set-off of the payments made by him subsequent to the date of delivery of possession as well as for the amount of munafa that became payable to him after that date.

After a prolonged enquiry .the trial court on 18th December, 1937, decreed the plaintiff's claim for mesne profits after allowing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable setoff for the subsequent period. The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set-off, subject, however, to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defcndant' s dues were wiped off. The relevant part of his judgment runs thus :-

"The broad fact is that they (plaintiffs) have been in possession of the lands since 1910 and have been in enjoyment of rent from the tenants from that date and according to law they are not entitled to possess the land unconditionally. Now that all the facts are before the court and the time has come for final adjustment of accounts between the parties the court should try to do substantial justice between the parties.

It is not sufficient answer to say that the plea of equitable set-off was not raised in the beginning. The circumstances in all these cases are peculiar and it could hardly be expected that such plea would have been taken in the very beginning. The course of litigation in these cases has not run along

Raja 13hupendra

Narain Singha

Bahadur v.

Maharaj Bahadur Singlt

and Others.

Mahajan I~

Raja Bhupendra Narain Singha

Bahadur v.

Maharaj Bahadur Singh

and Others.

J\1ahajan f,

easy and smooth channels : on the contrary its course has been extremely tortuous and disturbed frequmtly by conflicting decisions.

No one could have reasonably anticipated in the beginning that the litigation would be protracted in this extraordinary way.

It is the duty of the court to take notice of the subsequent events in order to do justice between the parties . ..... As we are dealing with the question of equitable set-off, no question of time-barred debts or unascertained sum can arise. . . . . . The plea of equitable setoff in respect of time-barred debts can be set up as a shield by way of defence nor can any question of payment of court-fees arise. There is, in my opinion, no substantial difference in the character of the respective parties during the entire period and it would be futile to make an attempt at distinction by over; subtle argument where there is really no difference in substance. There is considerable force in .the argument advanced on the side of tl1e appelltant, namely, tile appellant's claim to the equitable set-off is really in the. nature of cross-demand arising out of the same transaction and connected in its nature and cricumstances ..... ; From whatever standpoint the matter may be 'looked at I am of the opinion that the claim of the appellnt for equitable set-off for the subsequent period by way of deduction of the chowkidari revenue and cess .paid by him as well as on account of munafa should be allowed.

This amount will also carry interest at 6 per cent per annum up to date. The subsequent! period means the period since the date of delivery of possession up to 1927-28."

Against the judgment and decrees of the District' Judge the plaintiff preferred appeals to the High Court at Calcutta.

The High Court by the judgment under appeal modified the decress of the District Judge and disallowed the claim for equitable set-off in its entirety for the subsequent period and restored the decree of the trial court. The zamindar filed applications for leave to appeal to His Majesty in Council.

These applications were consolidated with similar applications filed in t11e second batch of suits. A certificate

.~

was granted for leave to appeal to His Majesty in Council. By an order dated 9th June, 1947, all the appeals were admitted and it was directed that the proceedings be printed and transmitted to England.

During the pendency of the proceedings in the High Court, Raja Bhupendra Narayan Singh died and the 11resent appellant was impleaded as his heir and representative. An application was also made in the High Court for permission to urge additional grounds not already taken. After the abolition of the jurisdiction of the Privy Council these appeals were transmitted to this Court.

An application under Order XIX, rule 4, of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals, viz.:-

(1) That the munafa (rent) should not be calculated on the basis of the principles laid down in Radhacharan v. Maharaja Raniit Singh(1).

(2) That the said munafa should have been assessed on a fair share of the profits from the land.

The ~econd batch of appeals. (Nos. 75 to 92 of 1951) arises out of 18 suits instituted in the court of the Munsif of Rampurhat on 22nd December, 1909, by Ganpat Singh and Narpat Singh predecessors in interest of respondents 1 to 3 against the predecessors in interest of the appellant, late Raja Ranjit Singh Bahadur, and also some other persons who were tenants under him, for a declaration of the plaintiffs' title to the resumed chowkidari chakran lands and for khas possession of the same and for mesne profits~ The allegations in these suits were the same as in the first set of suits. The defence to the suits was also the same. The suits were decreed by the trial Judge on 30th September, 1910, in the following terms :-

"The plaintiffs' title is declared to the lands in suit and they will get khas possession of the same by ejecting the tenant defendants; on condition of paying

(1) (1918)

27 C.L.J. 532.

Raja Bhupendra Narain Singh11

Bahadur v.

Maharaj Bahadur Singh

and Others.

Raja Bhupi:ndra

Narain Singha Bahadur v.

Maharaj Bahadur Singh and Others.

Mahajan /.

to t.he defendant No. 1 an additional rent, to be determined on the principle that the original patni rent should bear the same ratio to the patni rent now payable bv the plaintiffs as the original H ustbood at the time of the creation of the patni should bear to the present increased Hustbood, or any other fair and equitable rent which may be determined at the time of assessing the mesne profits.

The plaintiffs will get W asilat from defendant No. I up to the date of delivery of possession of the land in suit to them. The amount will be determined in a separate enquiry."

The District Judge on appeal remanded the cases for determination of the conditions and terms under which the patnidar was to hold the lands under the zamindar and directed ascertainment of profits. The plaintiffs obtained delivery of possession of the lands in the meanwhile on 23rd November, 1910. Against the remand order appeals were preferred to the High Court and the 'High Court decreed the appeals in these terms:-

"W e set aside the portion of the decision of the District Judge which remands the cases to the original court to determine the conditions under which the patnidar is to hold the lands under the zarnindar.

Rest of the remand order will stand. That portion of the Munsif's decree, which imposes on the appell; mt, as a condition of obtaining khas possession, the payment of additional rent to the zamindar will be set aside." Against these decrees appeals were preferred to His Majesty in Council by special ilcave. The Privy Council set aside the decrees of the High Court and observed as follows:-

"Their Lordships, therefore, see no reason for interfering with the long series of authorities commencing as. far back as the . year 1900, which have established the right of the zamindar to have an additional rent fixed for such 'lands not can. their Lordships overlook the fact that in the cases already referred before this Board no exception was taken by the patnidar to the

' ii

• (

fixing of such rents as a condition of being put into . " possession.

On 8th December, 1922, the plaintiffs filed applications in these suits for ascertainment of mesne profits for the years 1906 to 1910. Objections were taken on behalf of the defendant on the 17th April, 1923, and it was contended that .the plaintiffs may be allowed mesne profits to the extent of the amount that would be found due after deduction of the amount of rent to which the defendant was entitled in respect of the lands in suit according lb the judgment of the munsif.

On the 28th May, 1927, another application was filed by the zamindar claiming deduction by way of equiitab'.le set-off of the amounts due to him for rent from 1910 onwards and on account of subsequent payment made by him towards revenue and cesses. After a prolonged enquiry the munsaf ultimately on the 18th December, 1937, decreed the plaintiff's claim for mesne profits after allowing deductions for the amounts claimed by the defendant up to the date of delivery of possession.

He held that the appellant was not entitled to get any amount by way of equitable set-off in respect of sums of money spent by him in payment of revenue and cesses or for the amount of munafa or profits for the period subsequent to the date of delivery of possession.

The District Judge on appeal! by his judgment dated the 16th December, 1938, allowed the claim of equitable set-off for the period subsequent to delivery of possession and directed that "from the plaintiffs' dues, the dues of the defendant are to be deducted and if after these deductions any sum is due to the plaintiffs they will get a decree for that sum. If it is found on calculations in some cases that the dues of the defendant exceed the dues of the plaintiffs, in such cases the prayer of the plaintiffs for mesne profits must be dismissed." Against this decision special appeals were pref erred to the High Court and by the judgment under appeal the decision of the uial court was restored. Applications were then made for leave to appeals to His 1\1.ajesty in. Council and 2-9 S.C. Indiaf71

Raja BhupendriJ

Nargin Singhi!I

Bahadur v.

Maharaj Bahadur Singh

and Others.

Mahajan f.

Raja BhuPendra

N ar•io Sitizht1

Bllhadur

MMharaj Bahadur Singh

and Others.

Mah•jan /.

those were allowed and a certificate was granted for preferring those appeals. Because of the abolition of the jurisdiction of the Privy Council those appeals are now before us for decision.

The points for decision in all these appeals are the following:-

1. Whether the appellant is entitled to deduct by way of equitable set-off from the amount of mesne profits the amounts due to him on account of rent, revenue and cesses for the period subsequent to the dates of delivery of possession.

2. Whether interest should be allowed on the amount of mesne profits found due, and if so, at what rate.

3. Whether the rent due to the appellant from the patnidar on those lands should be calculated on the basis of annual assets of the land (as in Radhacharan

v. Maharaia Ranji~ Singh(')), or on a fair and equitable basis.

The claim for set-off for the period. for which mesne profits were claimed has been allowed and is not in these appeals.

As regards the amounts due to the appellant by way of rent subsequent to .the date of transfer of possession, the claim is unconnected with the subjectmatter of the different suits.

It seems clear that a plea in the nature of equitable set-off is not available when the cross-demands do not arise out of the same ·. transaction. Mesne profits due to the plaintiff relate to the period during which the appellant was in wrongful possession of the lands and .the amounts claimed by the defendant relate to a period when he was no longer in possession and had ceased to be a trespasser. No mesne profits a.re claimaWe for that period. The right of the appellant to recover additional rents from the plaintiff arises out of a different ! cause of action and independently of the claim for I. mesne profits. If the patnidar after having entered into possession had defaulted in the payment of the

(1) (1918) 27 C.L.J. 532. ' .• , , ; ':

> -

1952 additional rents due for any period, nothing stood in the way of the appellant from recovering them by appropriate legal proceedings.

The prolongation of the enquiry for ascertainment of the mesne profits cannot support a claim for equitable set-off for the period subsequent to the delivery of possession to the plaintiff.

Raia Bhupendra Narain SingA11

Bahadur

It is obvious that no claim for equitable set-off against mesne profits during the pendency of the suits could be made for the sums deduction of which is now sought, as the amounts had not then accrued due and his right to them had not yet arisen. The learned District Judge was in error in holding that the appellant's claim for equitable set-off was in the nature of a cross-demand arising out of the same transaction and connected in its nature and circumstances.

He failed to appreciate that the transaction which led to plaintiff's demand rsulted tfrom the defendant's wrongful act as a trespasser, while the transaction giving rise to the appellant's demand arises out of the relationship of landlord and tenant and the obligations resulting therefrom.

A wrongdoer who has wrongfully withheld moneys belonging to another cannot invoke any principles of equity in his favour and seek to deduct therefrom the amounts that during this period have fallen due to him. There is nothing improper or unjust in telling the wrongdoer to undo his wrong, and not to take advantage of it. Such a person cannot be helped on any principles of equity to recover amounts for the recovery of which he could have taken action in due course of law and which for some unexplained reason he failed to take and which claim may have by now become barred by limitation.

It was contended that it was only after the decree of the Privy Council that the appellant's rights to the additional rent was finally established and till then no legal steps could be taken to enforce this demand.

The contention is without force.

The appellant's right to additional rent had been established by the decree of the trial court in execution of which possession passed from him to the patnidar. 'fhe Privy

Maharai Bahadur SingA

and Others.

Mahajan J.

1952 .--- Raia Bhupendra

Narain St'ngha ..

Bahadur v.

Maharaj Bahadur Singh

and Others.

Mahajan /.

Council only affirmed this decision.

The patnidars under the decree were entitled to possession of the lands conditional on payment of the additional rent due for the period they had been out of possession.

That condition having been fulfilled (by adjustment of the appellant's claim against the mesne profits), the decree must be held to have been satisfied, thus completely settling the cross-demands. The landlord's demand for subsequent rents has to be enforced in the ordinary way in the civil court if any default has been committed in the payment of these rents. This claim cannot for ever remain linked with the demand for mesne profits for any anterior period. The result 1s that the decision of the High Court on this point is maintained.

On the question of future interest payable on the decretal amount, the learned District Judge observed as follows:-

"I may state, however, at this stage that if I were to rule out the fact that I am allowing the claim of the appellant for equitable set-off, I would have allowed interest to the plaintiffs at the uniform rate of 4 per cent. per annum throughout, i.e., from the beginning '•. of the W ashilat period up to date: As I am allowing the prayer for equitable set-off, I am of opinion, however, that interest at the usual rate at 6 per cent. per annum should be granted for the whole of this period."

The High Court disallowed equitable set-off but yet maintained this decision. When the claim for equitable set-off is being disallowed, there is no justification for allowing future interest at the rate of more than 1' four per cent. for such a long period, particularly in a case where the plaintiff himself has not been prompt in getting the amount of mesrie profits ascertained.

The plaintiff did not even ask for an enquiry into this question for a period of about twelve years. Taking .into consideration all the circurristances of the case we • , think that future interest .should not have been allow- . ed to the' plaintiff in the several suits at a higher rate ,.i.. ..

. than four per cent: on the amount decreed in the vari-

<$ suits by way 'of mesne :profits. ·

--

t ...

The appellant's last contention that the munafa

(rent) should not be calculated on the principle laid down in Radhacharan v. Maharaja Ranjit Singh (1) but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal. It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage. Moreover, it seems to us that the claim has no substance in the absence of any .evidence about the proportion the original patni rent bore to the r.evenue and cesses.

For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent. instead of six per cent. The parties will bear their own costs in all these appeals.

Appeals dismissed.

Agent for the appellant in Civil Appeals No. 62 to 74 :lJ.ld 75 to 92 : P. K. Bose.

'W Agent for respondent No. 1 in Civil Appeals Nos. 68

to 74 : Ganpat Rai.

Agent for the respondents Nos. 1 to 3 m Civil Appeals Nos. 75 to 92 : Sukumar Ghose.

MUSAMMAT PHOOL KUER

ti.

MUSAMMAT PEM KUER AND ANOTHE.lt.

PANDIT MADAN MOHAN

MUSAMMAT PEM KUER AND ANOTHER .

[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR.

and VMAN BosE JJ.] Hindu law-Widow-Surrender 'to next reversioner and stranger-Validity-Compromise by widow-When binding O# reversioner.

(1) (1918) 27 C.L.J. 532.

Raja Bhupendra Narain Singha

Bahadur

Maharaj Bahadur Singh

and Others.

Mahajan /.

April 24

Aiyar

Anaro Kuer

Lakhandeo Singh

S. P. Varma

M. M Sinha

K_. L. Mehta

RAJA BHUPENDRA NARAIN SINGHA BAHADUR

MAHARAJ BAHADUR SINGH AND OTHERS

MEHR CHAND MAHAJAN

Narain Szngha

able by him under the decree, the amounts due to him on account Ra1a B_uP.endra

of rent, revenue and cesses for a period subsequent to the date Narain Szngha of delivery of possession of the lands inasmuch as the two cross Bahadur demands do not arise out of the same transaction.

Mahajan

Akram

Blank

Sitaram Bannerjee

Arun Kumar Dutta

Amiya Kumar Mukherjea

Urukramdas Chakravarthy

Arun Kutnar Dutta

Panchanan Chose

Chandra Nath Mukherji

MAHAJAN

Raja Bhupendra

Maharaj IJahadur Singh

Maharaja Bahadur Singh

Rampurhat

Raja Ranjit Singh Bahadur

14th November, 1853

sections 50 and 51

Bengal Act VI of 1870

17th August, 1905

19th August, 1905

24th June, 1927

18th December, 1937

Maharaj Bahadur Singlt

Maharaj Bahadur Singh

High Court at Calcutta

9th June, 1947

England

Raja Bhupendra Narayan Singh

Supreme Court

22nd December, 1909

Ganpat Singh

Narpat Singh

Raja Ranjit Singh Bahadur

30th September, 1910

Raja Bhupendra Narain Singh11

Bahadur

Raja Bhupi:ndra

Mahajan

23rd November, 1910

8th December, 1922

17th April, 1923

28th May, 1927

16th December, 1938

Raja BhupendriJ

Nargin Singhi!I

Mahajan f.

Raja BhuPendra

MMharaj Bahadur Singh

Raia Bhupendra Narain SingA11

Raia Bhupendra

P. K. Bose

Ganpat Rai

Sukumar Ghose

MUSAMMAT PHOOL KUER

MUSAMMAT PEM KUER

PANDIT MADAN MOHAN

VMAN BosE

Raja Bhupendra Narain Singha