judgement:
Appeal No. 471 of 1963.
Appeal by special leave from the judgment and decree dated November 9 1960 of the Punjab High.
Court in Regular Second Appeal No. 1627 of 1960.
434 section V. Gupte, Solicitor General, B. K. Khanna, R. K. Garg, D. P. Singh, section C. Agarwal and M.K. Ramamurthi, for the appellant.
N.C. Chatterjee and M.S. Gupta, for respondent No. 1.
P.K. Chatterjee and R.H. Dhebar, for respondent No. 11.
The Judgment of the Court was delivered by Mudholkar, J.
The short point which falls to be considered in this appeal by special leave from a judgment of the High Court of Punjab dismissing the appellant 's appeal in limine is whether the suit for possession instituted by the plaintiff respondent No. 1 is within time.
There are ten respondents to the appeal out of whom only two, the plaintiff respondent No. 1 Amardas and respondent No. 11 Union of India are represented.
While the appeal is contested by the first respondent it is supported by the Union of India.
The facts which are not disputed before us are briefly these: The appellant has a share of 1221/143 1/2 in the land in suit.
The occupancy tenant of this land is Akhara Nirbansar of Sultanwind Gate, Amritsar.
The second respondent Ram Saran Das was Mahant of this Akhara till the year 1950 when he was removed by virtue of an order made by a civil court in a suit under section 92 of the Code of Civil Procedure, confirmed in appeal on September 11, 1950.
On December 29, 1953 respondent No. 1 was appointed as Mahant in place of respondent No. 2.
On September 15, 1939 the appellant instituted a suit in a revenue court under sections 38 and 39 of the Punjab Tenancy Act (hereafter referred to as the Act) for possession of 141 kanals 8 marlas of land on the ground that he had granted a sub lease thereof for the manufacture of bricks to someone by utilising earth dug up from that land.
This, according to the appellant, was in contravention of the provisions of section 39 of the Act and entitled him to eject respondent No. 2.
The Revenue Court held that out of the land sub leased by respondent No. 2 only a certain portion was dug up by the sub lessee and, therefore, the ejectment of the second respondent was confined to that area of land which had been dug up.
The date of the ejectment decree was June 3, 1940.
The second respondent preferred an appeal before the Collector from that decree which was dismissed on October 19, 1940.
Shortly thereafter the appellant obtained possession of the land from which the second respondent was ordered to be ejected.
The lessee of the second respondent, however, continued to dig up the rest of the land and, therefore, the appellant instituted a second suit for the ejectment of the second respondent therefrom.
The Assistant Collector who tried the suit granted a decree to the appellant in respect of the entire land which was left with the second respondent after he was dispossessed from a part of the land leased to him under the earlier decree.
In appeal, however, the Collector modified the order of 435 ejectment by leaving out of the land 29 kanals and 14 marlas.
This order was made on May 31, 1943.
Shortly thereafter the appellant obtained possession of the land with respect to which the Collector had confirmed the order of ejectment in the appeal.
On March, 18, 1957 the first respondent instituted a suit against the appellant and the second respondent.
According to respondent No. 1 Akhara Nirbansar was not bound by the actions of Mahant Ram Saran Das, the second respondent, which were tantamount to alienation of the land which, according to him, were neither for legal necessity nor for the benefit of the estate.
He contended that on the contrary the action of Ram Saran Das in alienating the land was unauthorised and illegal and because what he did was not for legal necessity nor for conferring any benefit on the estate.
The appellant contested the suit on two main grounds.
The first was that the land in question was never attached to the Akhara but that Mahant Ram Saran Das, the second respondent, was its occupancy tenant and that as the sub lessee of the land had dug it up and rendered it unfit for cultivation the appellant as the owner of the land was entitled to eject respondent No. 2 by forfeiting the lease.
He denied that the land was wakf property and contended that the occupancy rights existing in favour of the second respondent were extinguished by the orders of the revenue courts which still hold good.
The second point was that as the appellant was in continuous possession of the land in suit as owner in his own right for more than 12 years preceding the suit openly and to the exclusion of the second respondent and respondent No. 1 the suit was barred by time.
In his replication respondent No. 1 reiterated that the property in suit belongs to and is owned by the Akhara Nirbansar as its occupancy tenant and that the second respondent was never its Occupancy tenant.
Therefore, according to him, there was no question of extinguishment of occupancy rights in consequence of the two decrees made by the revenue courts.
He contended that the action of the second respondent in leasing out the land for digging up earth was a transfer which, not being for legal necessity nor for the benefit of the estate, was unauthorised.
According to him the mere fact that the appellant was in possession of the land for more than 12 years makes no difference to the suit and that the land being trust property a suit for its recovery could be brought within 12 years from the date of "death, resignation or removal" of the manager of such a property.
He added that there was no question of the appellant being in possession in his own right of the land for more than 12 years.
The suit was decreed by the trial court and its decision was unheld in appeal by the second Additional District Judge, Amritsar.
The appellant 's second appeal was dismissed in limine by the High Court.
436 Upon the view which we take on the question of limitation it has become unnecessary to decide the other points.
The learned Selicitor General who appears for the appellant relies strongly upon the averments of the appellant in his written statement that he is occupying the land in suit for a period of over 12 years from the date of the institution of the suit as owner in his own right and not as an occupancy tenant and that even if his occupation is regarded to be that of an occupancy tenant as alleged by the first respondent, he has acquired the proprietary rights in this property by operation of statute.
The Solicitor General relies on the further averments to the effect that the original occupancy tenant of the land was the second respondent and not the Akhara and also contended that whether it was one or the other made no difference.
For, the tenant 's occupancy rights were extinguished by the decrees passed in the ejectment suits and consequently there was no cause of action for the present suit.
As pointed out by the learned Solicitor General, respondent No. 1 in his replication has not disputed the fact that the appellant was in possession for more than 12 years before the institution of the suit and that the only way in which he tried to meet it was by saying that this fact made no difference to his case.
It seems to us clear that upon the eviction of respondent No. 2 from a part of the land in the year 1940 and the rest of it in the year 1943 the occupancy right with respect to the land merged in the right of ownership of the appellant.
Apart from that it is clear that the actual physical possession of the land having been continuously with the appellant to the exclusion of the occupancy tenant, whether it was respondent No. 1 or the Akhara itself.
for a period more than 12 years before the institution of the suit that right was extinguished.
Mr. Gupta, learned counsel for respondent No. 1, however, sought to meet this position by urging that the second respondent 's act amounted to an alienation, that it was not established that it was for legal necessity and that, therefore, respondent No. 1 as the successor of respondent No. 2 to the office of Mahantship of the Akhara could institute a suit within 12 years of his succession to the office.
This succession to his office must, according to him, be deemed to have occurred when upon the dismissal in the year 1950 of the appeal preferred by respondent No. 2 against the decision of the trial court removing him from Mahantship; later the respondent No. 1 was appointed a Mahant.
That was on December 12, 1953.
The suit having been filed within 12 years of that date, so Mr. Gupta contends, must be held to be within time.
The simple answer to this contention is that what happened in this case was the forfeiture of the occupancy tenancy by the appellant as landlord.
In no sense can this be regarded as, or even likened to alienation, which is a voluntary act of the alienor in favour of the alienee.
The appellant is thus not an alienee from the respondent No. 2 Ram Saran Das.
437 Mr. N. C. Chatterjee who also appeared for the first respon dent raised a novel contention.
According to him, adverse possession against the Akhara, which was the real occupancy tenant, could not commence till respondent No. 1 was appointed as Mahant because during the interval there was no person who was competent to institute a suit on behalf of the Akhara for the possession of the lands of which the appellant was in adverse possession.
In support of the contention he has placed reliance upon the decision in Dwijendra Narain Roy vs Joges Chandra De(1).
In particular learned counsel has relied upon the following observations of Mookerjee J., who delivered the judgment of the Court.
They are: "The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues, when there is in existence a person who can sue and another who can be sued. .
The cause of action arises when and only when the aggrieved party has the right to apply to the proper tribunals for relief.
The statute (of limitation) does not attach to a claim for which there is as yet no right of action and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained.
Consequently the true test to determine when a cause of action has accrued is to ascertain the time when plaintiff could first have maintained his action to a successful result." (P. 609).
He further brought to our notice that these observations have received the approval of this Court in F. Lakshmi Reddy vs L. Lakshmi Reddy(2), at p. 206.
In the case which came up before this Court the facts which are set out in the head note were as follows: "V died an infant in 1927 and H, an agnatic relation filed a suit for the recovery of the properties belonging to V which were in the possession of third parties, on the ground that he was the sole nearest male magnate entitled to all the properties.
During the pendency of the suit a Receiver was appointed for the properties in February, 1928.
The suit having been decreed H obtained possession of the properties from the Receiver on January 20, 1930, and after his death in 1936, his nephew, the appellant, got into possession as H 's heir.
On October 23, 1941 the respondent brought the present suit for the recovery of a onethird share of the properties from the appellant on the footing that he and his brother were agnatic relations of V of the same degree as H, that all the three were equal co heirs of V and that H obtained the decree and got into possession on behalf of all the co heirs.
The appellant resisted the suit and contended that the respondent lost his right by the adverse possession of H and his successor and that for this purpose not only the period from (1) A.I.R. 1924 Cal.
(2) ; 438 January 20, 1930 to October 23, 1941 was to be counted but also the prior period when the Receiver was in possession of the properties during the pendency of H 's suit.
It was found that the respondent 's case that H obtained the decree and got possession from the Receiver on behalf of the other co heirs was not true.
" The facts of that case were different and it was on these facts that this Court held that the respondent did not lose his right by adverse possession.
It is in the context of these facts that the learned Judges cited with approval the observations of Mookerjee J., which we have set out.
Assuming these observations are sound, it cannot be said in the case before us that at any point of time there was no person who was competent to institute a suit on behalf of the Akhara.
Respondent No. 2 was still the Mahant and could well have instituted a suit on behalf of the Akhara if in fact there was any cause of action for such a suit.
Further, in the course of the suit the possession was with a Receiver who had been appointed by the court and was thus competent in law to institute a suit.
We may point out that a Mahant of an Akhara represents the Akhara and has both the right to institute a suit on its behalf as also the duty to defend one brought against it.
The law on the subject has been stated very clearly at pp. 274 and 275 in Mukherjea 's Hindu Law of Religious and Charitable Trust, 2nd, ed.
It is pointed out that in the case of an execution sale of debutter property it is not the date of death of the incumbent of the Mutt but the date of effective possession as a result of the sale from which the commencement of the adverse possession of the purchaser is to be computed for the purposes of article 144 of the Limitation Act.
This is in fact what the Privy Council has laid down in Sudarsan Das vs Ram Kirpal (1).
A similar view has been taken by the Privy Council in Subbaiya vs Mustapha(2).
What has been said in this case would also apply to a case such as the present.
Thus if respondent No. 2 could be said to have represented the Akhara in the two earlier suits, decrees made in them would bind the respondent No. 1 as he is successor in office of respondent No. 2.
On the other hand if respondent No. 2 did not represent the Akhara, the possession of the appellant under the decree passed in these suits would clearly be adverse to the Akhara upon the view taken in the two decisions of the Privy Council just referred to.
The first respondent 's suit having been instituted after the appellant has completed more than 12 years of adverse possession must, therefore be held to be barred by time.
For these reasons disagreeing with the courts below we set aside the decrees of the courts below and instead dismiss the suit of respondent No. 1 with costs in all the courts.
Appeal allowed.
(1) L. R. 77 I.A. 42.
(2) L.R. 50 I.A. 295.

summary:
The appellant was the owner of the suit land.
Alleging that the 2nd respondent, who was the Mahant of an Akhara, was the occupancy tenant and that he had allowed his lessee to dig it up and rendered it unfit for cultivation, the appellant evicted the 2nd respondent from a part of the land in 1940, and from the rest of it in 1943.
In 1950, the 2nd respondent was removed from the office of Mahant, in proceedings under section 92, C.P.C., and in 1953, the 1st respondent was appointed in his place.
In 1957 the 1st respondent filed a suit for possession of the land, alleging that the Akhara itself was the occupancy tenant.
The trial court decreed the suit and the High court confirmed the decree.
In the appeal to this Court, the appellant contended that the suit was barred by limitation.
HELD: Upon the eviction of the 2nd respondent the occupancy right in the land merged in the right of ownership of the appellant.
Apart from it, the actual physical possession of the land having been continuously with the appellant to the exclusion of the occupancy tenant, whether it was the 1st respondent or the Akhara itself, for a period of more than 12 years before the institution of the suit, the occupancy right was extinguished.
If the 2nd respondent represented the Akhara in the eviction proceeding the decrees therein would bind the 1st respondent as his successor.
If the 2nd respondent did not represent the Akhara, the possession of the appellant under those decrees would be adverse to the Akhara.
The 2nd respondent as the Mahant, or the Receiver appointed by the Court In the section 92 proceedings, could have filed a suit on behalf of the Akhara, and so, the 1st respondent 's suit after 12 years of adverse possession by the appellant was barred.
(436D E; 438F H] Sudaram Das vs Ram Kirpal, L.R. 77 T.A. 42 and Subbaiya V. Mustapha, L.R. 50 I.A. 295, applied Dwijendra Narain Roy vs Joges Chandra De, A.I.R. 1924 Cal.
600, referred to.


judgement:
Appeal No. 730 of 1962.
Appeal from the judgment and decree dated February 19, 1959, of the Mysore High Court in Regular Appeal No. 208 of 1961 62.
S.K. Venkatarangaiengar and A.G. Ratnaparkhi, for the appellants S.T. Desai and Naunit Lal, for respondent No. 1.
K.K. Jain, for respondent No. 2.
The Judgment of the Court was delivered by Mudholkar, J.
This is an appeal by defendants Nos. 3 to 8 from a decision of the High Court of Mysore passing a decree in favour of respondent No. 1 who was defendant No. 1 in the trial court, for possession of half the property which was the subject matter of the suit and also allowing future mesne profits.
The relevant facts are briefly these: The plaintiff who is the eider sister of the first defendant instituted a suit in the court of the District Judge, Bangalore for a declaration that she.is the owner of half share in the properties described in the schedule to the plaint and for partition and separate possession of half share and for mesne 285 profits.
According to her the suit property was the absolute property of her mother Puttananjamma and upon her death this property devolved on her and the first defendant as her mother 's heirs.
Since,according to her, the first defendant did not want to join her as coplaintiff in the suit, she was joined as a defendant.
It is common ground that the property was in the possession of the second defendant R.S. Maddanappa, the father of the plaintiff and the first defendant and Gargavva, the second wife of Maddanappa and her children.
Maddanappa died during the pendency of the appeal before this Court and his legal representatives are the other defendants to the suit.
Briefly stated his defence, which is also the defence of defendants other than defendant No. 1 is that though the suit properties belonged to Gowramma, the mother of Puttananjamma, she had settled them orally on the latter as well as on himself and that after the death of Puttananjamma he has been in possession of those properties and enjoying them as full owner.
He further pleaded that it was the last wish of Puttananjamma that he should enjoy these properties as absolute owner.
The plaintiff and the first defendant had, according to him, expressly and impliedly abandoned their right in these properties, that his possession over the properties was adverse to them and as he was in adverse possession for over the statutory period, the suit was barred.
Finally he contended that he had spent more than Rs. 46,000 towards improvements of the properties which met partly from the income of his joint ancestral property and partly from the assets of the third defendant.
These improvements, he alleged, were made by him bona fide in the belief that he had a right to the suit properties and consequently he was entitled to the benefit of the provisions of Section 51 of the Transfer of .Property Act.
The first defendant admitted the claim of the plaintiff and also claimed a decree against the other defendants in respect of her half share in the suit properties.
The other defendants, however, resisted her claim and in addition to what the second defendant has alleged in his written statement contended that she was estopped by her conduct from claiming any share in the properties.
The trial court decreed the claim of the plaintiff but held that the first defendant was estopped from claiming possession of her half share in the properties left by her mother.
The first defendant preferred an appeal before the High Court challenging the correctness of the decision of the trial court.
The other defendants also flied an appeal before the High Court challenging the decision of the trial court in favour of the plaintiff.
It would appear that the plaintiff had also preferred some cross objections.
All the matters were heard together in the High Court, which dismissed the appeal preferred by defendants Nos.
2 to 8 as well as the crossobjections lodged by the plaintiff but decreed the appeal preferred by the first defendant and passed a decree in her favour for possession of her half share in the suit properties, and future mesne profits 286 against the remaining defendants.
Defendants Nos. 2 to 8 applied for a certificate from the High Court under Articles 133(1)(a) and 133(1)(c) in respect of the decree of the High Court in the two appeals.
The High Court granted the certificate to defendants Nos. 2 to 8 in so far as defendant No. 1 was concerned but refused certificate in so far as the plaintiff was concerned.
We are therefore, concerned with a limited question and that is whether the High Court was right in awarding a decree to the first defendant for possession of her half share and mesne profits.
Mr. Venkatarangaiengar, who appears for the appellants accepts the position that as the certificate was refused to defendants Nos. 2 to 8 in so far as the plaintiff is concerned, the only points which they are entitled to urge are those which concern the first defendant alone and no other.
The points which the learned counsel formulated are as follows: (1) It is not open to a court to award future mesne profits to a party who did not claim them in the suit; (2) No decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit.
(3) That the first defendant was estopped by her conduct from claiming possession of her alleged half share of the properties.
We will consider the question of estoppel first.
The conduct of the first defendant from which the learned counsel wants us to draw the inference of estoppel consists of her attitude when she was served with a notice by the plaintiff, her general attitude respecting Bangalore properties as expressed in the letter dated 17th January, 1941 written by her to her step mother and the attestation by her and her husband on 3 10 1944 of the will executed on 25th January, 1941 by Maddanappa.
In the notice dated 26th January, 1948 by the plaintiff 's lawyer to the first defendant it was stated that the plaintiff and the first defendant were joint owners of the suit properties which were in the possession of their father and requested for the co operation of the first defendant in order to effect the division of the properties.
A copy of this notice was sent to Maddanappa and he sent a reply to it to the plaintiff 's lawyers.
The first defendant, however, sent no reply at all.
We find it difficult to construe the conduct of the first defendant in not replying to the notice and in not co operating with the plaintiff in instituting a suit, for obtaining possession of the properties as justifying the inference of estoppel.
It does not mean that she impliedly admitted that she had no interest in the properties.
It is true that in exhibit 15, which is a letter sent by her on 17 1 1941 to her step mother she has observed thus: "I have no desire whatsoever in respect of the properties which are at Bangalore.
Everything belongs to my father.
He has the sole authority to do anything .
We give our 787 consent to anything done by our father.
We will not do anything." But even these statements cannot assist the appellants because admittedly the father knew the true legal position.
That is to say, the father knew that these properties belonged to Puttananjamma, and that he had no authority to deal with these properties.
NO doubt, in his written statement Maddanappa had set up a case that the properties belonged to him by virtue of the declaration made by Puttananjamma at the time of her death, but that case has been negatived by the courts below.
The father 's possession must, therefore, be deemed to have been, to his knowledge, on behalf of the plaintiff and the first defendant.
There was thus no possibility of an erroneous belief about his title being created in the mind of Maddanappa because of what the first defendant had said in her letter to her step mother.
In so far as the attestation of the will is concerned, the appellants ' position is no better.
This 'will ' purports to make a disposition of the suit properties along with other properties by Maddanappa in favour of defendants Nos.
3 to 8.
The attestation of the will by the first defendant and her husband, would no doubt affix them with the knowledge of what Maddanappa was doing, but it cannot operate as estoppel against them and in favour of defendants Nos.
3 to 8 or even in favour of Maddanappa.
The will couId take effect only upon the death of Maddanappa and, therefore, no interest in the property had at all accrued to the defendants Nos. 3 re, 8 even on the date of the suit.
So far as Maddanappa is concerned, he, as already stated, knew the true position and therefore, could not say that an erroneous belief about his title to the properties was created in his mind by reason of the conduct of the.
first defendant and her husband in attesting the document.
Apart from that there is nothing on the record to show that by reason of the conduct of the first defendant Maddanappa altered his position to his disadvantage.
Mr. Venkatarangaiengar, however, says that subsequent to the execution of the will he had effected further improvements in the properties and for this purpose spent his own moneys.
According to him, he would not have done so in the absence of an assurance like the one given by the first defendant and her husband to the effect that they had no objection to the disposition of the suit properties by him in any way he chose to make it.
The short answer to this is that Maddanappa on his own allegations was not only in possession and enjoyment of these properties ever since the death of Puttananjamma but had made improvements in the properties even before the execution of the will.
In these circumstances, it is clear that the provisions of Section 115 of the Indian Evidence Act, which contain the law of estoppel by representation do not help him.
Mr. Venkatarangaiengar, however, wanted us to hold that the law of estoppel by representation is not confined to the provisions 288 of section 115 of the Evidence Act, that apart from the provisions of this section there is what is called "equitable estoppel" evolved by the English Judges and that the present case would come within such "equitable estoppel".
In some decisions of the High Courts reference has been made to "equitable estoppel" but we doubt whether the court while determining whether the conduct of a particular party amounts to an estoppel, could travel beyond the provisions of Section 115 of the Evidence Act.
As was pointed out by Garth C.J. in Ganges Manufacturing Co. vs Saurjmull(1) the provision of s 115 of the Evidence Act are in one sense a rule of evidence and are rounded upon the well known doctrine laid down in Pickard vs Sears(2) in which the rule was stated thus: "Where one by his word or conduct wilfully causes another to believe for the existence of a certain state of thing and, induced him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the first, time.
" The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith.
Therefore, where one person makes a misrepresentation to the other about a fact he would not be shut out by the rule of estoppel, if that other person know the true state of facts and must consequently not have been misled by the misrepresentation.
The general principle of estoppel is stated thus by the Lord Chancellor in Cairncross vs Lorimer(3): "The doctrine will apply, which is to be found, I believe, in the laws of all civilized nations that if a man either by words or by conduct has intimated that he consents to an act which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.
I am of opinion that, generally speaking, if a party having an interest to prevent an act being done has full notice of its being done, and acquiesces in it, so as to induce a reasonable belief that he consents to it, and the position of others is altered by their giving credit to his sincerity, he has no more right to ' challenge the act to their prejudice than he would have had if it had been done by his previous license.
" It may further be mentioned that in Carr vs London & N.W. Ry.
Co.(4)four propositions concerning an estoppel by conduct (1) I.L.R. 5 cal., 669.
(2) ; (3) (4) ; 289 were laid down by Brett, j. (afterwards Lord Reher) the third which runs thus: "If a man either in express terms or by conduct makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estoppel from denying the existence of such a state of facts.
" This also shows that the person claiming benefit of the doctrine must show that he has acted to his detriment on the faith of the representation made to him.
This was quoted with approval in Sarad vs Gopal(1).
It will thus be seen that here also the person who sets up an estoppel against the other must show that his position was altered by reason of the representation or conduct of the latter and unless he does that even the general principle of estoppel cannot be invoked by him.
As already stated no detriment resulted to any of the defendants as a result of what the defendant No. 1 had stated in her letter to her step mother or as a result of the attestation by her and her husband of the will of Maddanappa.
Mr. Venkatarangaiengar then tried to urge before us that it was a case of family settlement by the father with a view to avoid disputes amongst his heirs and legal representatives after his death and, therefore, the actions of defendant No. 1 can be looked at as acquiescence in the family settlement effected by the father.
A case of family settlement was never set up by the defendants either in the trial court or in the High Court and we cannot allow a new case to be set up before us for the first time.
Finally on this aspect of the case the learned counsel referred to the observations of Lord Cranworth in Ramsden vs Dyson(2) which are as follows: "If a stranger begins to build on my land supposing it to be his own and I (the real owner) perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a court of equity will not allow me afterwards to.
assert my title to the land, on which he has expended money on the supposition, that the land was his own.
It considers that when I saw the mistake in which he had fallen, it was my duty to be active and to state his adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion in order afterwards to profit by the mistake which I might have prevented.
The doctrine of acquiescence cannot afford any help to the appellants for the simple reason that Maddanappa who knew the true state of affairs could not say that any mistaken belief was caused (1) L.R. 19 I.A. 203.
(2) L.R.I. H. L. App.
129, 140. 290 in his mind by reason of what the first defendant said or did.
According to the learned counsel, even if the first defendant 's claim to the half share in the suit property cannot be denied to her she must at least be made to pay for the improvements effected by Maddanappa, according to her proportionate share in the suit property.
As already stated the appellant was in enjoyment of these proportion after his wife 's death and though fully aware of the fact that they belonged to the daughters he dealt with them as he chose.
When he spent moneys on those properties he knew what he was doing and it is not .open to him or to those who claim under him to say that the real owners of the properties or either of them should be made to pay for those improvements.
No man who, knowing fully well that he has no title to property spends money on improving it can be permited to deprive the original owner of his right to possession of the property except upon the payment for the improvements which were not effected with the consent of that person.
In our view, therefore, neither was defendant No. 1 estopped from claiming possession of half share of the properties nor can she be made liable to pay half the costs of improvements alleged to have been made by the second defendant.
Now regarding the second point, this objection is purely technical.
The plaintiff sued for partition of the suit properties upon the ground that they were inherited jointly by her and by the first defendant and claimed possession of her share from the other defendants who were wrongfully in possession of the properties.
She, also alleged that the first defendant did not co operate in the matter and so she had to institute the suit.
The first defendant admitted the plaintiff 's title to half share in the properties and claimed a decree also in her own favour to the extent of the remaining half share in the properties.
She could also have prayed for the transposition as a co plaintiff and under Order I, rule 10(2) C.P.C. the Court could have transposed her as a co plaintiff.
The power under this provision is exercisable by the Court even suo motu.
As pointed out by the Privy Council in Bhupender vs Rajeshwar(1) the power ought to be exercised by a court for doing complete justice between the parties.
Here both the plaintiff and the first defendant claim under the same title and though defendants 2 to 8 had urged special defences against the first defendant, they have been fully considered and adjusted upon by the High Court while allowing her appeal.
Since the trial court upheld the special defences urged by defendants 3 to 8 and negatived the claim of the first defendant it may have thought it unnecessary to order her transposition as plaintiff.
But the High Court could, while upholding her claim, well have done so.
Apparently it either over looked the technical defect or felt that under O. XLI, rule 33 it had ample power to decree her claim.
However that may be, the provisions of section 99 would be a bar to interfere here with the High Court 's decree upon a ground such as this.
(1) L.R. 58 I.A. 228.
291 The only other question for consideration is whether the High Court was justified in awarding mesne profits to the first defendant even though she was not transposed as a plaintiff.
According to the learned counsel mesne profits cannot be awarded to a successful party to a suit for possession unless a claim was made in respect of them.
The learned counsel is right in so far as mesne profits prior to the suit are concerned but in so far as mesne profits subsequent to the date of the institution of the suit, that is future mesne profits are concerned, the position is governed by Order XX, rule 2, C.P.C. which is as follows: "(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree (a) for the possession of the property; (b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until: (i) the delivery of possession to the decreeholder, (ii) the relinquishment of possession by the judgment debtor with notice to the decree holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
" The learned counsel, however, relied upon the decision of this Court in Mohd. Amin and others vs Vakil Ahmed and others(1).
That was a suit for a declaration that a deed of settlement was void and for possession of the property which was the subject matter of the settlement under that deed.
The plaintiffs had not claimed mesne profits at all in their plaint but the High Court had passed a decree in the plaintiff 's favour not only for possession but also for mesne profits.
In the appeal before this Court against the decision of the High Court one of the points taken was that in a case of this kind, the court has no power to award mesne profits.
While upholding this contention Bhagwati J. who delivered the judgment of the Court has observed thus: "The learned Solicitor General appearing for the plaintiffs conceded that there was no demand for mesne profits as such but urged that the claim for mesne profits would be included within the expression 'awarding (1) ; ,1144 B(N)3SCI 6 292 possession and occupation of the property aforesaid together with all the rights appertaining thereto.
We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint.
The provision in regard to the mesne profits will therefore have to be deleted from the decree.
" In order to satisfy ourselves whether these observations related to the award of past mesne profits or to the award of future mesne profits we sent for the original record of this Court and we found that the High Court had awarded past as well as future mesne profits.
Mr. S.T. Desai, appearing for the respondent No. 1 stated.
that a Full Bench in Babburu Basavayya and four others vs Babburu Garavayya and another (1) following the decision of the Judicial Committee in Fakharuddin Mohomed Ahsan vs The Official Trustee(2) has held that even after the passing of the preliminary decree, it is open to the court to give appropriate directions, amongst other matters regarding future mesne profits either suo motu or on the application of the parties in order to prevent multiplicity of litigation and to do complete justice between the parties.
This decision has been followed in a large number of cases.
In Bachepalli Atchamma vs Yerragupta Rami Reddy(3) Simma Krishnamma vs Nakka Latchumanaidu and others(4) Kasibhatla Satyanarayana Sastrulu and others vs Kasibhatla Mallikarjuna Sastrulu(5) and Ponnuswami Udayar and another vs Santhappa(6) the decision of this Court was cited at the Bar and has been considered.
The learned Judges have said that the authority of the decision in Babburu Basavayya and four others vs Babburu Guravayya(1) is not shaken by what this Court has said.
One of the grounds given is that the former relates to a suit for partition while the latter to a suit for possession simpliciter.
It is not necessary for us to consider whether the decision of this Court can be distinguished upon this ground, but we feel that when a suitable occasion arises it may become necessary to reconsider the decision of this Court as to future mesne profits.
In the present case the plaintiff did claim not only partition and separate possession of her half share of the properties but also past mesne profits.
The defendant No. 1 admitted the plaintiff 's claim and in substance prayed for a similar decree in her favour.
The decision of this Court would, therefore, not apply to a case like the one before us.
In the result therefore we uphold the decree of the High Court and dismiss the appeal with costs.
Appeal dismissed.
(1) I.L.R. 1952 Madras 173.
(2) 8 cal 178 (P. C.).
(3) A.I.R. 1957 A.P. 52.
(4) A.I.R. 1958 A.P. 520.
(5) A.I.R. 1960 A.P. 45.
(6) A.I.R. 1963 Mad. 171.

dataset_name: IN-Abs

summary:
The plaintiff instituted the suit for possession of her half share in the suit properties and for mesne profits.
The first defendant, who was the plaintiff 's sister, admitted the plaintiff 's claim and herself claimed a decree against the other defendants in respect of her half share in the suit properties.
The second defendant was their father and the suit properties were in his possession.
He and the other defendants, who were his second wife and children by her, contested the suit.
The trial court decreed the plaintiff 's claim, but held that the first defendant was estopped from claiming possession of her share.
On appeal by the first defendant, the High Court passed a decree in her favour also for possession of her half share in the suit properties, and for past and future mesne profits.
On appeal to this Court against the decree in favour of the first defendant, it was contended on behalf of the other defendants: (i) that the first defendant was estopped by her conduct from claiming possession of her half share of the properties because (a) she had not replied to a notice from the plaintiff to join with her in the suit for obtaining possession and division of the suit properties; (b) 'she had written a letter to her step mother stating that she wished to have no interest in the suit properties then in her father 's possession; (c) she and her husband had attested a will executed by the father 25 1 1941 which covered the disposition of the suit properties; and (d) ' that the first defendant 's conduct was either covered by section 115 Evidence Act or fell within the principle of "equitable estoppel" ' (ii)even if the first defendant 's claim to the half share in the suit properties could not be denied, she must be made to pay for half the cost of various improvements of those properties effected by the second.
defendant in the bona fide belief that the properties belonged to him as she had acquiesced in the expenditure being incurred; (iii) that no, decree can be passed in favour of a defendant who has not asked for transposition as plaintiff in the suit; and (iv) that it is not open to a court to award future mesne profits to a party who did not claim them in the suit.
HELD: (i) The first defendant was neither estopped from claiming possession of her half share of the properties nor could she be made liable to pay half the costs of improvements alleged to have been made by the second defendant; (a) It cannot be implied from the conduct of the first defendant in not replying to the notice given b the plaintiff that she had admitted that she had no interest in the properties; (b) The second defendant 's case that the properties belonged to him having been negatived, there was no possibility of an erroneous belief being created in the mind of the second defendant that he had title to the property because of what the first defendant, had said in her letter to her step mother; (c) The attestation of the will by the first defendant and her husband, by which the second defendant purported to make a disposition of the suit properties in favour of the other defendants could not operate as an estoppel, as 284 no interest had accrued in favour of those defendants on the date of the suit.
As far as the second defendant was concerned, he knew, the true legal position and could not say that an erroneous belief was created in his mind by reason of the first defendant and her husband attesting the will.
[286 G H; 287 C; 287 F] Quaere: Whether the Court, while determining whether the conduct of a particular party amounts to an "equitable estoppel" could travel beyond the provisions of section 115 of the Evidence Act.
[288 B] Case law reviewed.
(ii) No man who knowing fully well.
that he has no title to property, spends money on improving it, can be permitted to claim payment for improvements which were not effected with the consent of the true owner.
[290C] Ramsden vs Dyson, L R.I.H.L.App.
129, 140 distinguished.
(iii) Both the plaintiff and the first defendant claimed under the same title and though the other defendants had urged special defences against the first defendant, they had been fully considered and adjudicated upon by the High Court while allowing her appeal.
The High Court could, while upholding her claim, have transposed her as a plaintiff.
It either over looked the technical defect or felt that under Order XLI rule 33, it had ample power to decree her claim.
However that may be, the provisions of section 99 C.P.C., would be a bar to interference by the Supreme Court with the High Court 's decree upon such a ground.
[290 G H] Bhupendra vs Rajeshwar, 58 I.A. 228, referred to.
(iv) Though mesne profits prior to the suit cannot be awarded to a successful party unless a claim is made in respect of them, the position regarding future mesne profits is governed by O. XX, r. 2, C.P.C. The decree awarding mesne profits to the first defendant must be upheld because the first defendant admitted the plaintiff 's claim and in substance prayed for a similar decree in her favour.
[291 B; 292 G H] Mohd. Amin and Ors.
vs Vakil Ahmed and Ors.
; , distinguished.


judgement:
ivil Appeal No. 125 of 1963.
Appeal by special leave from the judgment and decree dated June 2, 1959 of the Calcutta High Court in Appeal from Appellate Decree No. 536 of 1964.
section Murthy and B.P. Maheshwari, for the appellant.
M.C. Chakraborthy and R. Gopalakrishnan, for respondent No. 1.
The Judgment of the Court was delivered by Ramaswami, J.
The sole question for determination in this appeal is whether respondent No. 2 Atul Chandra Patitundi is protected from being evicted by the landlord from the premises No. 90A, Harish Mukerjee Road situated in Bhawanipur, District 24 Parganas in view of the provisions enacted in section 13(2) of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 (West Bengal Act XVII of 1950), hereinafter called the 1950 Act.
Some time before 1948, respondent No. 2 was inducted as a monthly tenant under Rai Sahib Chartdan Mal Inder Kumar, the predecessor in interest of the appellant.
One of the conditions of the lease was that the tenant will not sub let the premises or any portion thereof.
As respondent No. 2 defaulted in the payment of rent the appellant made an application under section 14 of the Calcutta Rent Ordinance, 1946 for permission to sue him for eviction.
The application was granted by the Second Additional Rent Controller on September 10, 1948.
On December 1, 1948, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 (West Bengal Act XXXVIII of 1948).
hereinafter called the 1948 Act, came into force.
On September 15, 1949 the appellant flied a Title Suit No. 171 of 1949 in the Court of the 1 st Subordinate Judge, Alipore, 24 Parganas against respondent No.2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent.
While the suit was pending, the 1950 Act came into force on March 31, 950.
The suit was eventually decreed in favour of the appellant on February 25, 1951.
The appellant took out execution proceedings being Title Execution Case No. 39 of 1951 of the Court of the First Sub Judge.
Alipore.
The suit was resisted by respondent No. 1 who alleged that he had taken sub tenancy from respondent No. 2.
Respondent No. 1 also filed Title Suit No. 578 of 1951 in the Court of 4th Munsif at Alipore impleading the appellant and respondent No. 1 and praying for a declaration that on the termination of the tenancy of respondent No. 2, respondent No. 1 became a direct tenant of the appellant under section 13(2) of the 1950 Act and that he was not liable to be evicted in the execution case.
The suit was decreed in the Court of the Subordinate Judge and the decree was affirmed by the District Judge of 24 Parganas in Title Appeal No. 157 of 1953.
A Second Appeal was also dismissed by the Calcutta High Court on June 2, 1959.
331 On behalf of the appellant the argument put forward was that the sub lease granted by respondent No. 1 in favour of respondent No. 2 was contrary to the agreement of lease and not binding upon the appellant.
It was, therefore, submitted that the sub lessee did not acquire the status of a tenant under section 13(2) of the 1950 Act and the sub lessee could not be deemed to be holding directly under the appellant within the meaning of that sub section.
The question at issue depends upon the proper interpretation of section 13(2) of the 1950 Act which states: "13.
(2) Where any premises or any part thereof have been or has been sub let by 'a tenant of the first degree ' or by 'a tenant inferior to a tenant of the first degree ', as defined in explanation to sub section (1), and the sublease is binding on the landlord of such last mentioned tenant, if the tenancy of such tenant in either case is lawfully determined otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in clause (h) of the proviso to subsection (1) of section 12, the sub lessee shall be deemed to be a tenant in respect of such premises or part, as the ease may be, holding directly under the landlord of the tenant whose tenancy has been determined, on terms and conditions on which the sub lessee would have held under the tenant if the tenancy of the latter had not been so determined: Provided that it shall be competent for the landlord, or any person deemed under this section to be a tenant holding directly under the landlord, to make an application to the Controller for fixing rent of the premises or part thereof in respect of which such person is so deemed to be a tenant and until the rent is fixed by the Controller on such application such person shall be liable to pay to the landlord the same rent as was payable by him in respect of the premises or part thereof, as the ease may be, to the tenant before the tenancy of the tenant therein had been determined.
The Controller in fixing the rent shall not determine such rent at the rate which is beyond the limit fixed by paragraph (4) of Schedule A.
The rent so fixed shall be deemed to be the standard rent fixed under section 9".
Section 13(1)is also relevant in this connection and it states: "13.
(1) Notwithstanding anything contained in this Act, or in any other law for the time being in force, if a tenant inferior to the tenant of the 1st degree sub lets in whole or in part the premises let to him except with the consent of the landlord and of the tenant of a superior degree above him, such sub lease shall not be binding on such non consenting landlord, or on such non consenting tenant.
332 Explanation In this subsection (a) 'a tenant of the first degree ' means a tenant who does not hold under any other tenant; (b) 'a tenant inferior to the tenant of the first degree ' means a tenant holding immediately or mediately under a tenant of the first degree; (c) 'landlord ' means the landlord of a tenant of the first degree".
It is manifest that section 13(1) makes a distinction between the two classes of sub tenancies, namely, (1) sub tenancy created by a tenant of the first degree, and (2) sub tenancy created by "a tenant inferior to the tenant of the first degree" by which is meant a tenant holding immediately or mediately under a tenant of the first degree.
So far as the second class of sub tenancy is concerned, the sub section enacts that the sub letting will not be binding upon the landlord or on the tenant of the superior degree unless each of them has consented to the transaction of sub lease.
There is no express provision in section 13(1) that a sub lease of the 1st class requires previous consent of the landlord or that in the absence of such consent the sub lease shall not be binding upon the nonconsenting landlord.
Section 13(2) refers to both the classes of sub leases and states that if the sub lease has been made by a tenant of the first degree, the sub lessee shall be deemed to be a tenant in respect of the premises demised to him if the tenancy of such tenant is lawfully determined under the provisions of the Act otherwise than by virtue of a decree in a suit obtained by the landlord by reason of any of the grounds specified in el.
(h) of the proviso to sub section (1) of section 12.
In the case of second class of sub leases, i.e., sub leases created by a tenant inferior to the, tenant of the 1st degree also the sub lessee will acquire the status of a tenant as mentioned in the statute but in this class of sub leases the rights of the tenant are conferred on the sub lessee only if the sub lease is binding upon the landlord.
In enacting section 13(1) and (2) of the 1950 Act the legislature has deliberately made a distinction between the two classes of sub tenancies and provided that in the case of sub lease of the first class, namely, sub leases created by a tenant of the first degree, the sub lessee will acquire the status of the tenant in respect of the premises demised, though the sub lease is not binding upon the landlord according to the agreement of lease.
The legislature has further provided that in the case of sub lease of the second class the sub lessee will acquire the status of a tenant of the premises only if the sub lease is binding upon the "landlord" as defined in section 13(1).
It follows that in the case of sub letting by a tenant of the first degree no consent of the landlord to sub letting is required as a condition precedent for acquisition by the sub lessee of the tenant 's right but in the case of sub letting by a tenant inferior to the tenant of the first degree the consent of the landlord and 333 also of the tenant of the superior degree above him to the subletting is necessary if the sub lessee is to acquire the rights of the tenant contemplated by section 13(2).
It was argued on behalf of the appellant that the clause "and the sub lease is binding on the landlord of such last mentioned tenant" in section 13(2)governs both classes of tenancies, namely, sub tenancies created by "tenant of the first degree" and also by "a tenant inferior to the tenant of the first degree" as defined in section 13(1).
We do not consider that there is any justification for this argument.
Having regard to the grammatical structure and Context of the clause it is obvious that it imposes a qualification only upon sub tenancies of the second class.
It was also submitted on behalf of the appellant that if a sub lease is granted by the tenant of the first degree against the terms of the contract of lease the landlord is entitled under section 12(1)(c) of the 1950 Act to bring a suit for eviction of the tenant and that in such a suit the tenant and the sub lessees are both liable to be evicted from the premises in question.
It was submitted, therefore, that the rights mentioned in section 13(2) are conferred upon the sub lessee only in a case where sub letting is not in violation of the agreement for lease.
In our opinion, there is no substance in this argument.
Section 12(1)(c) states: "12.
(1) Notwithstanding anything to the contrary in any other Act or law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant, including a tenant whose lease has expired: Provided that nothing in the sub section shall apply to any suit for decree for such recovery of possession, (c) against a tenant who has sub let the whole or a major portion of the premises for more than seven consecutive months: Provided that if a tenant who has sub let major portion of the premises agree to possess as a tenant the portion of the premises not sub let on payment of rent fixed by the Court, the Court shall pass a decree for ejectment from only a portion of the premises sub let and fix proportionately fair rent for the portion kept in possession of such tenant, which portion shall thenceforth constitute premises under clause (8) of section 2 and the rent so fixed shall be deemed standard rent fixed under section 9, and the rights and ' obligations of the sub tenants of the portion from which the tenant is ejected shall be the same as of sub tenants under the provision of section 13;".
It is manifest that section 12(1)(c) saves the right of sub tenants even in a case in which the landlord has brought a suit for eviction against 334 the tenant under section 12(1)(c) and the rights and obligations of subtenants would be governed by the provisions of section 13.
Counsel on behalf of the appellant also referred to the provisions of section 11(3) of the 1948 Act which states: "11.(3) Any person to whom any premises or any part thereof have been or has been lawfully sublet by a tenant shall, where the interest of the tenant in such premises or part is lawfully determined otherwise than by virtue of a decree or order obtained ' by the landlord on any of the grounds specified in clause (f) of the proviso to sub section (1), be deemed to be a tenant in respect of such premises or part, as the case may be, holding directly under the landlord on the terms and conditions on which such person would have held under the tenant if the interest of the tenant had not been so determined: It was pointed out that rights are conferred by the statute only upon sub lessees to whom the premises have been "lawfully" sublet by a tenant.
It was contended that though the 1948 Act was repealed and substituted by the 1950 Act, the provisions of section 13(2) of the latter Act have to be construed in the context of the language of section 11(31) of the 1948 Act.
We are unable to accept this argument as correct.
It is manifest that in enacting section 13 of 1950 Act the legislature has deliberately enlarged the class of sub tenants to be protected from eviction by the landlords and the language of the section dealing with the sub lessees has been deliberately changed and proper effect and interpretation must be given to the language of the new section.
For the reasons expressed, we hold that the suit of respondent No. 1 has been rightly decreed and this appeal must be dismissed with costs.
Appeal dismissed.

summary:
Respondent No. 2 was a monthly tenant of 'the appellant on a condition that he would not sublet the premises of any portion thereof Under the West Bengal Premises Rent Control (Temporary Provisions) Act, 1948 the appellant filed a suit against respondent No. 2 for his eviction on the ground that the tenancy had been determined on account of default in payment of rent.
While the suit was pending, the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 came into force.
The suit was decreed and the appellant took out execution proceedings.
The suit was resisted by respondent No. 1 who alleged that he had taken subtenancy from respondent No. 2.
Respondent No. 1 also filed a suit impleading the appellant and respondent No. 2 and prayed for a declaration that on the termination of the tenancy of respondent No. 2, respondent No. 1 became a direct tenant of the appellant under section 13(2) of the 1950 Act and he was not liable to be evicted in the execution case.
The suit was decreed bY the trial court, which was affirmed by the appellate courts.
In appeal by special leave: HELD: The appeal must be dismissed.
[334F] In the case of sub letting by a tenant of the first degree no consent of the landlord to sub letting is required as a condition precedent for acquisition by the sub lessee of the tenant 's rights, but in the case of sub letting by a tenant inferior to the tenant of the first degree the ,consent of the landlord and also of the tenant of the superior degree above him to the sub letting is necessary if the sub lessee is to acquire the rights of the tenant contemplated by section 13(2).
[332 H] The clause "and the sub lease is binding on the landlord of such last mentioned tenant" in section 13(2) does not govern both classes of tenancies, namelY, sub tenancies created by "tenant of first degree" and also by "a tenant inferior to the tenant of the first degree" as defined in section 13(1).
[333 B] Is not correct to say that the rights mentioned in s, 13(2) are conferred u.on the sub lessee only in a case where sub letting is not in violation of the agreement of lease.
The right of sub tenant even in a case in which the landlord has brought a suit for eviction against the tenant under section 12(1)(c) are saved and the rights and obligations of sub tenants, would be governed by the provisions of.s.
[334A] In enacting section 13 of the Act the legislature has deliberately enlarged the class of sub tenants to be protected from eviction by the landlords and the language of the section dealing with the sublessees has been deliberately changed and proper effect and interpretation must be given to the language of the new section.
[334 E] 330


judgement:
Appeals Nos.
392 and 393 of 1954.
Appeals by special leave from the judgment and order dated March 26, 1962, of the Calcutta High Court in Civil Revision Nos. 3176 of 1958.
G.S. Chatterjee and S.C. Mazumdar, for the appellant (in C.A. No. 392/64).
N.C. Chatterjee and section (7.
Mazumdar, for the appellant (in C.A. No. 393/64).
C.K. Daphtary, Attorney General, B. Sen, S.C. Bose and P.K. Bose, for the respondents (in C.A. 392/64).
B. Sen, S.C. Bose and P.K. Bose, for the respondent (in C.A. No. 393/64).
The Judgment of the Court was delivered by Hidaytullah, J.
these two appeals the appellants seek to displace a common judgment and order of the High Court of Calcutta dated March 26, 1962 by which a Full Bench of the Court, specially constituted to hear and determine certain petitions under article 226 of the Constitution involving a common point of law, discharged the Rule issued earIier in them.
These cases were concerned with Muslim wakfs in which either the ultimate benefit to charity is postponed till after the exhaustion of the wakif 's family and descendants or the income from the wakf estate is applied for the maintenance of the family side by side with expenditure for charitable or religious purposes.
The common question which arose and still arises is whether these wakfs are affected by the passing of the West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of 1954). ?hat Act, in common with similar Acts of other States in india abolished from a date notified by the State Government all intermediaries such as proprietors, tenure holders etc.
between the raiyat and the State and vested the estates and the rights of the intermediaries in the State free from all incumberances.
Section 3 of the Act provided that the Act was to have effect notwithstanding anything to the contrary contained in any other law or in any contract express or implied or in any instrument and notwithstanding any usage or custom to the contrary.
There were, however, some exceptions and one such exception was that an intermediary was entitled to retain, with effect from the date of vesting, land held in khas under a trust or endowment or other legal obligation exclusively for a purpose which was charitable or religious or both.
Notices under section 10(2) of the Act were issued by the Collectors in charge, Estate Acquisitions, to the respective Mutwallis informing them that after the notification issued on November II, 1954 under section 4 of the Act there was extinction and cesser of the estate 309 and rights of these intermediaries and their divested estates and rights vested in the State.
The Mutawallis were called upon by said notice or order to give up possession of these estates and interests within 60 days of the service of the order, to the officer empowered by the Collector in this behalf.
The orders also specified in schedules appended thereto, the details of such properties, interests and rights.
Notices of this kind were issued to Fazlul Rabbi radhan, Mutawalli of Abdul Karim Wakf Estate, who is appellant a Civil Appeal No. 392 of 1964 and to Kawsar Alam, Mutawalli of Penda Mohammad Wakf Estate, appellant in Civil Appeal No.393 of 1964.
Similar notices were issued to other mutawallis in respect of other wakfs.
The mutawallis appeared in answer to the notices and objected to them.
They claimed that they were protected by section 6(1)(i) of the Act (to which detailed reference will be made (resently) as they were holding the properties exclusively for purposes which were charitable or religious or both.
This claim was not accepted by the Collector, Estate Acquisitions, and appeals to the commissioner also failed.
The orders of the Collector and the Commissioner are dated February 24, 1956 and January 18, 1958 respectively.
The appellants after serving notices of demand for justice filed petitions in the High Court under article 226 of the Constitution.
The petitions came up for hearing before D.N. Sinha J. and were refered, on his recommendation, to a Full Bench consisting of Bachaat, D.N. Sinha and P.N. Mookerjee JJ.
These learned Judges by separate but concurring judgments held that the wakfs in question were not protected by section 6(1)(i) as they were not exclusively for purposes which were charitable or religious or both and discharged the Rule.
The cases were, however, certified under article 133(1)(a) and (c) of the Constitution and these two appeals were filed.
It is not necessary to state how the Act is constructed for the ' only question is whether the wakfs can be said to be exclusively for purposes which are religious or charitable or both and thus exempted from the operation of the Act by virtue of section 6(1)(i) which reads "6.
Rights of intermediary to retain certain lands.
(1) Notwithstanding anything contained in section 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub section (2) but subject to the other provisions of that sub section, be entitled to retain with effect from the date of vesting (i) where the intermediary is a corporation or an institution established exclusively for a religious or a charitable purpose or both, or 310 is a person holding under a trust or an endowment or other legal obligation exclusivey for a purpose which is charitable or religious or both land held in khas by such corporation or institution, or person, for such purposes.
" Section 2(c) defines "charitable purpose" and section 2(n) "religious purpose".
These definitions are: "2(c) "charitable purpose" includes the relief of poor, medical relief or the advancement of education or of any other object of general public utility;" "2(n) "religious purpose" means a purpose connected with religious worship, teaching or service or any performance of religious rites;" If this concession is not available then the estate must vest in the State Government under sections 4 and 5 of the Act.
The former section invests power in the State Government to notify the date from which the estates and rights of every intermediary are to vest in the State free of all incumberances and the latter says that upon due publication of the notification the vesting takes place from the date notified.
This has been done.
The wakfs in these two appeals are dissimilar in their terms but both provide for application or income for the support of the wakifs and their families.
In the Abdul Karim Wakf (Civil Appeal 392 of 1964) the value of the property is shown as Rs. 1,00,000 and a ceiling of Rs. 4,500 is placed by the wakif on expenditure per year (el. 12).
The mutawalliship and the Naib mutawalliship run in the family from generation to generation first in the male line and after exhaustion of the male line in the female line.
The charities mentioned specifically or generally require a stated expenditure of Rs. 904 per year.
The wakif has.
in addition, provided for an expenditure of Rs. 2,000 at a time, for the solace of his own soul and for his burial ceremonies etc.
Rs. 25 have been ordered to be spent on Milad every year.
As regards secular expenses the deed directs that 10 per cent of the income is to be kept as d reserve fund and from savings from the income other properties are to be purchased (cl. 19).
The mutawalli and the Naib mutawalli are tO receive 8 per cent of the income in proportion of 5:3.
Then follow numerous dispositions for the benefit of the family.
They are: "15.
My wife Bibi Jainulnessa wilt get as long as she is alive, Rs. 1,200 annually at the rate of Rs. 100 per month and Bibi Taherankhatun, the widow of my eldest son, will get as long as she is alive, Rs. 480 annually (Rupees four hundred eighty only) at the rate of Rs. 40 per month.
Such monthly allowances 311 will be stopped after their death.
After their death their heirs will not get any portion of the aforesaid monthly allowances.
Each of my three sons Shriman Tojammal Hossain Prodhan, Shriman Ahmad Yasin Prodhan and Shriman Azizul Huq Prodhan, will get Rs. 24 per cent out of the net income of the wakf estates (after payment of revenue, cess etc.
which are current at present or will be levied in future and after meeting the costs of administration).
Shriman Abu Alam Prodhan, the only son born of the loins of my deceased second son will similarly get at the rate of Rs. 7 per cent out of the net income.
A fund will be created with a deposit at the rate of Rs. 3 (Rupees three only) per cent, out of the annual net income for the purpose of education of the sons of my sons, sons of my daughters, sons of the daughters of my sons and my great grandsons (in the male line).
The Mutawalli and the Naib Mutawalli in consultation with each other will render help as far as possible to the boy amongst them who will be meritorious and has zeal for education according to his standard of education.
If there be any surplus the same will be kept in deposit in the wakf estate for meeting the expenses of education of the future heirs.
If after graduation he goes to England, France, Germany, America, Japan, Australia and other progressive countries for higher education, then the Mutawalli and the Naib Mutawalli will, in consultation with each other, help him as far as possible.
, "20.
The provision made for allowances for my aforesaid three sons and my grandson Shriman Abu AIam Prodhan in Schedule (Kha) will vest, after their death in the respective sons and grandsons in the male line equally.
If any of them has no son or grandson, in that case after his death if his wife lives and continues to follow her own religion, she will get one eighth share of the aforesaid allowance as long as she is alive.
The remaining seveneighth share and in the absence of his wife, sixteen annas share will vest in the wakf estate.
Daughters born of them will not get the said allowance (in the female line).
" In the Penda Mohammad Wakf Estate (Civil Appeal 393 of 1964) the value of the property is shown as Rs. 40,000.
The expenditure on charities and religious purposes is about Rs. 3,700 per year.
312 These are specified in Schedule Kha.
The pay of the Naib Mutawalli is fixed at Rs. 300 per year.
The Mutawalliship and the Naib Mutawalliship run in the family and Mutawalli holding office can appoint his successor.
The other important clauses of the wakf namah dealing with the application of the funds are: "(9) The Mutawalli shall from the income of the wakf property pay at first revenue and other legitimate government and zamindary dues. "(10) The Mutawalli shall pay all expenses required for the maintenance of the wakf property and the Mutawalli shall get ten per cent of such expenses.
The Mutawalli shall pay Rs. 25 (Rupees twenty five only) per month to the Naib Mutawalli as his remuneration. "(12) The Mutawalli will be entitled to take as his own remuneration the balance remaining after deducting expenses under items Nos.
(9) and (10) as well expenses under Schedule (ka) and (kha) below from the income of the Wakf property and he will be entitled to spend the sum for his own work.
In Schedule Ka dispositions are made for the family and the various clauses run as follows: "(1) My grandson Jaman Ajimuddin Ahmed shall get a sum of Rs. 200 (Rupees two hundred) per month as his tankha (allowance) that is the cost of his maintenance and on his demise his heirs shall get the said tankha generation after generation and by way of succession for ever.
(2) My daughter Sreemati Hiramannessa Bibi shall get Rs. 25 (Rupees twenty five) per month for her maintenance and on her demise her heirs shall continue to get the said tankha generation after generation for ever by way of succession.
(3) My second wife Srimati Bibijannessa Bibi shall get Rs. 30 (Rupees thirty) per month during her life time as tankha that is as costs of her maintenance and on her demise none of her heirs shall get the same and it will be included in the Wakf Estate".
It was not claimed before us in these cases that the provisions about the family have become inoperative by the exhaustion of the beneficiaries and we proceed on the assumption that the families the wakifs do still enjoy the benefits.
In these circumstances, the question is whether these trusts can be described as those exclusively for religious or charitable purposes or both.
If they can be 313 so described section 6(1)(i) would exempt them from the operation of the Act; otherwise, in view of the provisions of sections 3, 4 and 5 the estates of the intermediaries vested in the State on the appointed date.
As already stated the provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary.
The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there.
The exemption is given to Corporations and institutions established exclusively for a religious or a charitable purpose or both but to this kind of eleemosynary foundations no mutawalli in either deed can lay claim.
The matter can thus only come in, if at all, within the words of the exempting clause which read: " . a person holding under a trust or endowment or other legal obligation exclusively for a purpose which is charitable or religious or both? ' The word "exclusively" limits the exemption to trusts, endowments or other legal obligations which come solely within charitable or religious purposes.
These purposes are defined by section 2(c) and (n) and the definitions have already been reproduced.
It is quite dear (and indeed the contrary was not suggested at the Bar) that the expression "religious purpose" cannot cover these two cases.
The definition is an exhaustive one and to satisfy the requirement the purpose must be connected with religious worship, teaching or service or performance of religious rites.
No religious worship, teaching or service or performance of religious rites is involved when the wakif provides for his family or himself even though a person giving maintenance to his family or himself is regarded in Mahomedan Law as giving a sadaqah.
But even if regarded as a pious act a sadaqah of this kind is not a religious worship or rite.
In our opinion, neither of the deed makes a disposition coming within the description "exclusively for religious purposes".
This leaves over for consideration whether they come within the expression "charitable purposes".
The definition of "charitable purposes" in the Act follows, though not quite, the well known definition of charity given by Lord Macnaghten in Commissioners for Special Purposes of Income Tax vs PemseI(1), where four principal divisions were said to be comprised trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community not falling under any of the preceding heads.
The definition in this Act makes one significant change when it speaks of "public utility" and this gives a guidance to the whole meaning and purpose of the exemption.
No doubt the definition is not an exhaustive one like the definition of 'religious purposes '.
It only speaks of what may be included in it besides the natural meaning of the words.
It ; 583.
314 is quite clear that the provision for the family of the wakif or for himself cannot be regarded as 'relief of poor ', 'medical relief ' or the `advancement of education '.
It cannot also be regarded as an ex penditure on an object of general public utility.
The definition as it stands cannot obviously comprehend such dispositions.
But it is contended by Mr. N.C. Chatterjee that in giving a meaning to the expression "charitable purposes" we must be guided by the notions of Mahomedan Law and he relies upon the observation of Sir George Rankin in Tribune Press Trustees, Lahore vs
I.T. Commissioner(1).
Mr. Chatterjee claims that provision for the wakif and the wakif 's family is a charitable purpose according to Mahomedan Law.
In the Tribune case the Judicial Committee was required to interpret section 4(3)(i) of the Indian Income tax Act 1922 (XI off 1922).
That section provided: "(3) This Act shall not apply to the following classes of income: (i) Any income derived from property held under trust or other legal obligation wholly for religious or charitable purposes, and in case of property so held in part only for such purpose, the income applied, or finally set apart for application, thereto.
In this sub section 'charitable purpose ' includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility.
" In dealing with the will of Sardar Dayal Singh who had constituted a trust to maintain the Press and the Newspaper, "keeping up the liberal policy of the said newspaper and devoting the surplus income . in improving the said newspaper . ", the question had arisen whether the running of a newspaper was an object of general public utility or whether it was to be treated as a business concern.
The High Court at Lahore was divided in its opinion.
Learned Judges in favour of granting the prayer for exemption were of the opinion that the true test was not what the Court considered to be an object of public utility, but what the testator thought to be.
The Judicial Committee pointed out that in reaching this view those learned Judges were following what Chitty J. said in In re Foveaux, etc.(2) and further that that case was dissented from in later cases.
In these latter cases it was held that though the private opinion of the Judge was immaterial, nevertheless for a charitable gift to be valid, it must be shown (1) that the gift was for public benefit, and (2) that the trust was one of which the Court could, if (1)L.R. 66 I.A. 241 at P. 252.
[1895] 2 ch.
501, 315 necessary undertake and control otherwise trusts to promote all kinds of "fantastic" objects in perpetuity would be established.
The Judicial Committee acceded to this view but pointed out further: . "It is to be observed, moreover, that under the Incometax Act the test of general public utility is applicable not only to trusts in the English sense, but is to be applied to property held under trust "or other legal obligation" a phrase which would include Moslem wakfs and Hindu endowments.
The true approach to such questions, in cases which arise in countries to which English ideas let alone English technicalities may be inapplicable, was considered by the Board in Yeap Cheah Neo vs Ong Cheng Neo(1), and it was well said by Sir Raymond West in Fatima Bibi vs Advocate General of Bombay(2); "But useful and beneficial in what sense? The Courts have to pronounce whether any particular object of a bounty falls within the definition; but they must, in general, apply the standard of customary law and common opinion amongst the community to which the parties interested belong.
" Relying on this passage Mr. Chatterjee contends that if the Mahomedan Law regards gifts for the benefit of the wakif and his family as "charity" it is not for the Courts to say that they are not and he claims exemption for the wakfs.
He relies upon the precept of the Prophet "A pious offering to one 's family, to provide against their getting into want, is more pious than giving alms to beggars.
The most excellent of sadkah is that which a man bestows upon his family '.
Now it is a matter of legal history that wakfs in which the benefits to charity or religion were either illusory or postponed indefinitely, while the property so dedicated was being enjoyed from generation to generation by the family of the wakif, were regarded as opposed to the rule against perpetuities as contained in the Indian Succession and the Transfer of Property Acts.
This was so declared in a succession of cases by the Judicial Committee and the opinion of Amir Ali expressed in his Tagore Lectures as well ' as in Meer Mahomed Israeli Khan vs Shasti Churn Ghore(3) and Bikani Mia vs Shukul Poddar(4) was not accepted.
These cases are referred to in the three opinions in the High Court and most important of them is Abul Fata Mahomed Ishak and Others vs Bussomoy Dhur Chowdry, and others(5).
In that case Lord Hobhouse, while emphasising that (1) (2) Bom.
42, 50 (3) (4) (5) 22 I.A. 76.
316 Mahomedan Law ought to govern a purely Mahomedan disposition, declined to hold that disposition in which the benefit was really intended to go to the wakif and his family could be described as charity even under that law.
Speaking of the precept above quoted by us Lord Hobhouse observed: " . it would be doing wrong to the great lawgiver to suppose that he is thereby commending gifts for which the donor exercises no self denial; in which he takes back with one hand what he appears to put away with the other; which are to form the centre of attraction for accumulations of income and further accessions of family property; which carefully protected so called managers from being called to account; which seek to give to the donors and their family the enjoyment of property free from all liability to creditors; and which do not seek the benefit of others beyond the use of empty words." Similar observations were made by Lord Hobhouse in L.R. 17 I.A. 25 and by Lord Natson in L.R. 19 I.A. 170 in earlier cases.
These cases led to agitation in India and the (VI of 1913) was passed.
It declared the rights of Mussalmans to make settlements of property by way of wakf in favour of their families, children and descendants.
For the purposes of the Validating Act the term 'wakf ' was defined to mean "the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable".
This gave a wider meaning to the word wakf but only for the purpose of taking them out of the validity which would have otherwise existed and which was already authoritatively stated to have so existed.
After the passage of these two Acts wakfs in which the object was the aggrandisement of families of wakifs without a pretence of charity in the ordinary sense became valid and operative.
But the intention of the Validating Act was not to give a new meaning to the word "charity" which in common parlance is a word denoting a giving to some one in necessitous circumstances and in law a giving for public good.
A private gift to one 's own self or kith and kin may be meritorious and pious but is not a charity in the legal sense and the Courts in India have never regarded such gifts as for religious, or charitable purposes even under the Mahomedan Law.
It was ruled in Syed Mohiuddin Ahmed and Ant.
vs Sofia Khatun(1) that neither the Wakf Validating Act 1913 nor the Shariat Act 1937 had the effect of aborgating the Privy Council decisions on the meaning of "charitable purpose" as such.
We do not say that the English authorities should be taken as the guide as was suggested in soms of these cases at one time.
For (1) 44 C.W.N.974.
317 one thing, the law was developed in the Chancery Courts without the assistance of any statutory definition.
The earliest statute on the subject is one of 1601 in the forty third year of the reign of Queen Elizabeth I and in its preamble it gave a list of charitable objects which came within the purview of that Act, and for another, Courts in England extended these instances to others by analogy and the subject is often rendered vague and difficult to comprehend.
A clear guide is available to us in India in the interpretation of the almost similar provisions of the Indian Income tax Act 1922 already quoted.
The observations of Sir George Rankin in the Tribune, case, on which much reliance is placed by the appellants were intended to convey the same caution about English cases which we have sounded here.
The Judicial Committee did not intend to lay down that the words of a statute so precise in its definition should be rendered nugatory by leaving room for inclusion in "charitable purposes", objects which by no means could be charity in the generally accepted legal sense.
No doubt the definition which is common is not exhaustive and leaves scope for addition but it does not make for enlargement in directions which cannot be described as "charitable".
This view of the definition was taken in respect of the analogous provision of the Indian Income tax Act.
In D.V. Arur vs Commissioner 'of Income tax(1) and in re Mercantile Bank of India (Agency) Ltd.(2)it was laid down that for satisfying the test of charitable purpose there must always be some element of public benefit.
Indeed it must be so, if family endowments which are in effect private trusts are not to pass as charities which, as was observed in Mujibunnissa and Ors.
vs Abdul Rahim and Abdul Aziz(3), it is superfluous in the present day to say, is not the law.
When the two deeds are examined and their provisions considered in the light of these principles, it is easily seen that they are not exclusively for charitable purposes.
They do provide in part for objects which are religious or charitable or both but mingled with those purposes are some which are secular and some which are family endowments very substantial in character.
If the latter benefits had ceased or the families had become extinct leaving only the charities or if the provisions were for poor and needy though belonging to the wakif 's family, other considerations might conceivably have arisen, as was stated by Bachawat J. in his opinion.
The deeds as they stand cannot, however, be said to come within the exemption claimed.
The appeals must, therefore, fail.
They are dismissed but in the circumstances we direct parties to bear their own costs.
Appeals dismissed.
(1) I,A.R. (2) (3) 21 I.A. 15 at p, 26.

summary:
The appellants were the respective mutawallis of two wakfs, in which either the ultimate benefit to the charity was postponed till after the exhaustion of the wakif 's family and descendents, or the income from the wakf estate was applied for the maintenance of the family side by side with expenditure for charitable or religious purposes.
Notices were issued by the Collector under the West Bengal Estates Acquisition Act, 1953, to the appellants, calling upon them to hand over possession of the wakf estates, on the ground that under section 4 of the Act, there was an extinction and cesser of the estate and the rights of the appellants, and that their divested estates and rights vested in the State.
The appellants claimed that they were protected by section 6(1)(i)of the Act, because, they were holding the properties exclusively for purposes which were charitable or religious or both.
The claim was rejected by the Collector, by the Commissioner on appeal, and by the High Court under article 226 of the Constitution.
In the appeal to the Supreme Court, HELD: The purposes described in the deeds were not covered by the expression "religious purpose", and they were not exclusively for charitable purposes.
Mingled with those purposes were some which were secular and some, which were family endowments, of a very substantial character.
As the provisions about the family had not become inoperative by the exhaustion of the beneficiaries, the deeds.
as they stood, could not be said to come within exemption claimed.
[317 F H].
The provisions of the Act apply notwithstanding anything to the contrary contained in any other law or in any instrument and notwithstanding any usage or custom to the contrary.
The Act must, therefore, be construed on its actual words and the exemption cannot be enlarged beyond what is granted there.
No doubt, the definition of "Charitable purpose" is not exhaustive like that of "religious purpose" but the expression "public utility" in the definition of "charitable purpose" gives a guidance to the meaning and purpose of the exemption.
It leaves scope for addition but it does not make for enlargement in directions which cannot be described as "charitable".
A provision for the family of the wakif or for himself cannot be regarded as "relief of poor", "medical relief" or "the advancement of education" under the definition.
It cannot also be regarded as an expenditure on an object of general public utility.
It is true that after the passing of the Mussalman waqf validating Act, 1937, wakfs, in which the object was the aggrandisement of the families of wakifs without any pretence of charity in the ordinary sense, became valid and operative.
But, the intention was not to give a new meaning to the word "Charity" which in common parlance is a word denoting a giving to someone in necessitous circumstances and in law, a giving for public good.
A private gift to one 's own self or kith and kin may be meritorious and pious, but is not a charity in the legal sense and Courts in India have never regarded such gifts as for religious or charitable purposes, even under the Mahomedan Law.
A; 316 F H; 317 D].