(1.)These appeals are directed against the judgment and decree of the H.C. of Judicature at Fort William in West Bengal, confirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the first Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may conveniently be referred to as Nos. 140 and141, Cotton Street.
(2.)In order to understand the points of contest between the various claimants to the compensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject-matter of the land acquisition proceedings. The premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hooghly. Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his predeceased wives, these being Jiban Kumari and Amrit Kumari, and a mistress named Kissen Dasi. On 23-8-1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan (i.e., what was left after excluding the dedicated properties) was divided in the terms of his will, with the result that Muni Bibi got subject to certain conditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi and Jiban Kumari also became the shebaits of the Thakur or deity with power to appoint their successors. On 20-1-1848, Muni Bibi by an arpannama dedicated 140, Cotton Street to the Thakur. It is recited in this deed, among other things, that on account of annual droughts and and inundation and consequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that
"Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob, etc., at the deity, when the amount fell short, this being against the provisions laid down by her late husband,"
that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p. m., that after deducting the necessary expenses the surplus income left was Rs. 20 p m., and that
"if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force."
After reciting these facts, it is stated that the rental of the house "shall be permanently and perpetually included in the expenses of the sheba". About 20 years later, on 30-9-1869, Muni Bibi created a permanent (maurasi mokrari) lease of the premises bearing No.140, Cotton Street, in her capacity as a shehait in favour of one 'Nehal Chand Panday (who was admittedly a benamidar for one Bhairodas Johurry), at a rental of Rs. 25 p. m. (See Ex. L- a kabuliyat executed by Nehal Chand in power of Maui Bibi). In the same year, on the 8th December, Jiban Kumari granted a permanent lease to Bhairodas Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p. m. (See Ex. K - a kabuliyat executed by Joharry in favour of Jiban Kumari). The main question which has been raised in this case is whether the two ladies were competent to give debutter properties by way of permanent lease to another person. In 1870, Muni Bibi died, and on 15-1-1872, Jiban Kumari appointed Gourimoni Devi a shebait by a regd deed and dedicated the premises known is 141, Cotton Street, to the deity. Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das. a minor son of Gourimoni, become the shehait of the idol. During his minority, his father, Raghubar Dayal, became his certificated guardian, and in that capacity, he executed a usufructuary mtge. deed in respect of the Cotton Street properties to one Lal Behari Dutt, on 31-8-1878. After the death of Raghubar Dayal, one Ajodhya Debi and after her one Kalicharan Dutta became the certificated guardian of Gopal Das, and on 17-8-1890, the latter mortgaged some debutter properties including 140 and141, Cotton Street to Lal Behari Dutt for a sum of Rs. 2,230. On attaining majority, Gopaldas executed on 17-1-1896 a usufructuary mtge deed in respect of all debutter properties including the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mtge. dues which amounted on that date to Rs. 4,955 and odd. This deed provided among other things that the mtgee. was to collect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mtge. dues. Gopaldas died in 1900, leaving behind him surviving his widow, Annapurna, who also died in 1905, By 1918, Lal Behari Dutt also was dead, and his interest in the martgaged properties, to which reference has been made was sold to one Naba Kishor Dutt on 12-12-1918. On 17- 11-1933, Naba Kishor assigned the mtgee's interest in the mortgaged properties to two of the Bagarias, resps. 1 and 2 in App. No. 95, and in the same year the three resps. (1 to 3) also acquired the lessee's interest in the Cotton Street houses. The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos.140 and 141, Cotton Street, is well as two adjoining premises with which we are not concerned in this case. In these proceedings, the following claims were put forward by three sets of persons :
(1) The Bagarias (resp. 1 to 3 in App. No 95) at first claimed the entire amount of compensation on the allegation that they were the absolute owners of the premises in question, but later on they claimed only as mtgees. and permanent lessees of those premises.
(2) On behalf of the deity, the entire amount of compensation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, and the Bagarias had acquired no interest therein either by the assignment of the usufructuary mtge. or the alleged purchase of the tenant's rights in the properties.
(3). Resp. 4 claimed compensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords.
(3.)In the present appeals, we are concerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the Cts. below. On 22-5-1935, the Collector awarded Rs. 31,740 as compensation for landlord's interests to be shared by the deity as owner and two of the Bagarias, resps. 1 and 2 in App. No. 95 in their capacity of usufructuary mtgee. A awarded a sum of Rs. 1,58,000 to the resps. 1, 2 and 3 as compensation for their rights as permanent tenants of the premises in question. Subsequently, three separate petns. of reference were filed by the three claimants against the Collector's award and the reference made by the Collector in pursuance thereof was regd. as apportionment case No. 95 of 1935 in the Ct. of the Calcutta Improvement Tribunal. Meanwhile Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the contest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests. On 31-8-1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufructuary mtge. on the basis of which resps. 1 and 2 had put in a claim, had been paid off and therefore they were not entitled to any compensation, and the whole sum of Rs. 31,740 should be paid to the deity. Resps. 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity. He also held that the deity was not entitled to question the leases by virtue of Art. 134 (a), Limitation Act. Regarding costs, he directed that all costs incurrent on behalf of the deity should, be paid out of the compensation money lying in deposit in Ct. Two appeals were thereafter preferred to the H. C. by the two main contesting parties and ultimately both these appeals were dismissed, and the H. C. upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Ct. the deity having obtained a certificate granting leave to appeal from the H. C. and the Bagaria resps. having obtained special leave from the P. C. to prefer a cross appeal.