9911796707
TMI Blog1903 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... his office of the estate during the minority,--Government intimating that on ascertainment of the debts owing by the late holder, they would determine the plan for their liquidation (Exhibit 106, page 58). Thereafter the Collector, without applying for or obtaining further orders from Government, after some correspondence, executed in favour of the present defendant the four successive documents, Exhibits 59, 60, 61 and 62, under which the defendant claims to hold the lands in dispute, some 11,000 acres, as a permanent tenant. Of these documents, Exhibit 59 bears date 29th June, 1881; Exhibit 60, 21st November, 1881; and Exhibit 61, 26th February, 1884--all prior to the operation in the district of Act XX of 1864, and therefore without the grant of a certificate of guardianship to the Collector thereunder. The defendant obtained possession which purported to be given in pursuance of these documents. But in 1890 some doubt being entertained by the Collector as to the validity of the arrangement made with the defendant in view of the introduction into the Panch Mahals of the Acts and Regulations applying to the rest of the Presidency, it was proposed that the Collector, woo had obta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff on 23rd September, 1898 (Exhibit 93, page 46). The plaintiff admits in paragraph 4 of his plaint (page 3) that he received rent from the defendant for two years 1897-90 and 1898-99. But on the 11th January, 1900, he wrote to the defendant (Exhibit 140, page 90) stating that as the defendant refused to vacate and claimed as a permanent tenant under a lease of which the plaintiff knew nothing, notice of a suit for ejectment, in case this hostile claim was not withdrawn, was thereby given. And on the defendant replying on 13th January, 1900 that he relied on the lease from the Collector as guardian and administrator of the plaintiff (Exhibit 64, page 40), the plaintiff two days later, i.e., on 15th January, 1900, filed this suit. 4. Such being the main fasts in the suit, the questions that arise appear to be as follows: (1) Whether the Government of Bombay as parens patrice had power to authorise the grant of a permanent tenure to the defendant under any circumstances? (2) Whether if they had such power, circumstances of the necessity of the estate or of benefit to it justified their authorising such a grant? (3) Whether the Government did in fact either authorise or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntains no express approval of what had been done and intimates rather that the Collector should be guided by the Legal Remembrancer's opinion that the Collector should comply with the requirements of the Guardians and Wards Act, in order to secure to the defendant the benefits of past transaction. Moreover it is doubtful whether Government were in full possession of all the facts, as to the three documents, Exhibits 59, 60 and 61, which are referred to as if only one agreement or lease had been entered into. And full knowledge is essential to ratification; Lewis v. Read (1845) 13 M. W. 834; Hilbery v. Hatton (1864) 33 L.J. Ex. 190; Marsh v. Joseph (1897) 1 Ch. 213. Moreover G.R. No. 5008 is dated 1890, and as its contents indicate was subsequent to the appointment of the Collector under Act XX of 1864, whereby the guardianship of Government had determined. And there can be no ratification by a person who at the time of ratification could not have done the act himself even though he had the power to do it when the original act unauthorised by him was done. For no one can supply an authority who does not possess it: Bird v. Brown (1850) 19 L.J. Ex. 154. That the Collector, acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act of 1871 did not come into force in the district as part of British India, neither did it repeal Act XX of 1866 therein by its first schedule and second section, and Act XX of 1 SB'S must have remained in force there till the General Clauses Act, 1897. Section 49 of Act XX of 1866 read with Section 17 rendered such documents as. Exhibits 59, 60 and 61 inadmissible if unregistered, and the exemption in Act XXVII of 1868 of grants by Government, if operative in the district at all, was limited to grants in reward for special services. These last words are not, it is true, reproduced in Section 97(d) of the Registration Act, 1871, or in Section 90(d) of the Registration Act, 1877. But those clauses manifestly exempt only grants or assignments by Government which under the respectively succeeding sections are kept open to inspection, and do not cover private documents purporting to be executed on behalf of minors or other private individuals. It thus appears that the documents in question cannot be received in evidence or affect any property comprised therein, if Section 49 of Act XX of 1866 apply thereto. I think, however, that, as so strenuously and ably contended by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but that is not as his agent but as administrator. Had the Collector been administrator at the time, a different principle would have applied, and the cases relied upon for respondent, Ram Chunder v. Pran Gobind (1876) 25 C. W.R. 71 and Gopalnarain v. Muddomutty (1874) 14 Beng. L.R. 21, would have been in point. But as the Collector was not administrator' and did not purport to act as agent, the plaintiff was not bound by and could not ratify the transaction. 8. The question of ratification being irrevalent, it is proposed for respondent to rely on alleged acquiescence by the plaintiff indicated by his receipt of the rent after knowledge of the alleged grant. And an attempt has been made to distinguish the present case from that of Jugmohandas v. Pallonjee (1896) 21 Bom. 1 on the ground that in Jugmohandas case the plaintiff proved that he knew nothing of the lease which be repudiated; whereas in the present case the plaintiff has not even come forward as a witness. In answer to the plaintiff's contention that an invalid lease could not be confirmed by the acceptance of rent only, without any intention of thereby confirming the lease, Woodfall, 15th Edition, page 211, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. The learned Counsel for the plaintiff contends as follows: The defendant by entering under a void lease and paying rent became a yearly tenant and continued to be so, and the relation of landlord and tenant thus once established, the possession of the defendant could not at any time hive-been adverse to the plaintiff as landlord. The documents under which the defendant claims, he urges, were void ab initio and not voidable. They could not be and were not ratified, and the case of Doe d. Rigge v. Bell (194) 2 Sm. L.C. 116 : 2 R.R. 642 is cited as showing that under English Law the position of the defendant would be that of a yearly tenant. Thus the learned Counsel contends the defendant had no adverse possession: he thought he was a lessee, but he was not: his possession was never challenged: it was therefore never adverse until the plaintiff claimed, and the defendant denied, the right to evict: and no bar has arisen under Article 144 of the second schedule to the Limitation Act, 1877 and the defendant now having repudiated his landlord's title, the landlord, the plaintiff, can evict without six months' notice: Vivian v. Moat (1881) 16 Ch. D. 730. The tenancy from yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as one made by a stranger, then his case would seem to be that the defendant's possession was that of a trespasser ab initio, and time would apparently run from the date when the leases were granted. In the case of Governors of Magdalen Hospital v. Knotts (1879) 4 Ap. Cas. 324 where the lease then in question was held to be absolutely void within 13 Eliz., c. 10, the right of re-entry was held to have arisen from the moment of the execution of the lease, and was held barred by adverse possession. Lord Selborne in that case was alone in the dictum that if rent however small had been reserved and received, it would have created a tenancy from year to year and limitation could not have run. The remark was not necessary to the decision of the case. It was apparently obiter and takes no account of the tenancy-at-will which in the absence of rent would have been called into existence and afforded a bar similar to that of a yearly tenancy. And the rulings in Attorney General v. Davey (1859) 4 De. G. J. 136 (by Lord Chancellor Chelmsford and Lord Justices Turner and Knight Bruce), and in Attorney General v. Payne (1859) 27 Beav. 168 of the M.R., where rent had been reserved and paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds fully to state the ground for this deduction, which appears on a reference to the Privy Council cases in question which were taken as having clearly settled the point. Next in point of time is the case of Tekaeinee Goura Coomaree v. Mussamut Saroo (1878) 252 P.C., a Privy Council case from which a similar deduction arises in connection with the following passage in their Lordships' judgment: The High Court overruled the decision of the Court of first instance upon the Statute of Limitations, holding, and their Lordships are of opinion rightly, that the Statute does not begin to run in favour of the Mokurrureedar against a Zemindar until the Zemindar has had notice that the Mokurrureedar claims under a mokurruree grant, and in this case it was not shown that notice had been given to the plaintiffs of such a tenure twelve years before the commencement of the suit. In 1873 the Full Bench decision of the Calcutta High Court in Dinomoney Dabea v. Durgaprasad (1873) 12 Beng. L.R., 275 allowed limitation to be' raised by a trespasser setting up but failing to prove a tenancy, and in Petambar Baboo v. Nilmony Singh (1878) 3 Cal. 793. distinct notice of a claim on the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the one most nearly on all fours with the present case. For there it had been urged that possession was under an invalid kanam arid possession for twelve years was a sufficient answer to a claim to eject. A kanam is defined in Wilson's Glossary as an arrangement by which the landlord holds a deposit for security for his rent when lands are taken on a stipulated rent upon lease for a given term of years. The result of this and other decisions cited in Budesab's case was referred to in that case by Sir Charles Farran as certain authority for the proposition that a landlord allowing a tenant to assert the validity of an invalid lease for the statutory period of more than twelve years, may be debarred from subsequently questioning the right of the tenant to hold under its terms. 12. This view, that the assertion of a title under an invalid lease if allowed by the landlord would raise a bar, does not seem to have been suggested or considered in the case of Jugmohandas v. Pallonjee (1896) 22 Bom. 1 relied on for the present appellant. In Jugmohandas's case the Court (Mr. Justice Strachey) seems to have assumed that because it had never occurred to any one to doubt the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as they are applicable to and not inconsistent with a yearly tenancy (Woodfall, 15th Edition, pages 93, 143, 231, 232, 358, where the tenancy from year to year is spoken of as implied by law from the payment and acceptance of rent or other circumstances, 364, 376). The leading case cited is Doe d. Bigge v. Bell (1794) 2 Sm. L.C. 116 : 2 R.R. 642. In Doe d. Bigge v. Bell (1794) 2 Sm. L.C. 116 : 2 R.R. 642 the defendant had paid rent. Both that Case and Clayton v. Blakey (1798) 8 T.R. 3, were decided under the Statute of Frauds, which contained express provision that a lease for more than three, years not reduced into writing should operate only as a tenancy at will. There is no similar provision in the Indian Statute Book. Nor, on the authority of Lord Chelmsford, Lord Chancellor, in Attorney General v. Davey (1859) 4 De G. J. 136 is there any case in which possession taken under a' void lease, as in that case, has ever been dealt with in equity as a lease from year to year. The case there dealt with was one of a lease with rent reserved, apparently void under 13 Eliz., c. 10. Section 116 of the Evidence Act precludes a tenant from denying that his landlord has a title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted and not withdrawn by the tenant who is suffered to continue in possession. In such circumstances the continuance of the defendant in possession evidences not a mere waiver of forfeiture for disclaimer, but an admission pro tempore at least of the conditions insisted on. The plaintiff's Counsel contends that in such a case as the present the tenant may think he has a lease, but his thinking to does not make his possession adverse. And this no doubt is indisputable. If the tenant does no more than think he has an, adverse title, the bare belief could avail him nothing unless he could show that it was intentionally induced by the owner so as to bring into operation Section 115 of the Evidence Act relating to estoppel. And I think a bare knowledge of the owner that a tenant proposes to rely on the assertion of a certain title would not in itself render the tenant's possession adverse. The owner in such case might well await actual resistance to or infringement of the rights claimed by him and till then would be under no necessity of taking action. But I also think if the tenant not only openly asserts to the knowledge of the owner an adverse interest but proceeds to enjoy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that an unregistered document when followed up by delivering of possession may be used as evidence of that possession. The case does not, so far as I can discover, appear to have been followed in any other authoritative decision. On the other hand, no case to contrary effect has been cited. A document inadmissible under Section 49 could not, I think, be used as evidence of delivery of possession. For that would be to use it as evidence of the transaction itself. But seeing that the Legislature has advisedly rejected in the more recent Acts the phrases which made such unregistered documents absolutely incapable of being received in evidence at all, and has very guardedly stated the purposes for which they shall not be received, I think in the absence of authority to the contrary an unregistered document inadmissible for the purpose of affecting immovable property or of any transaction affecting such property may yet be looked to, not in any way as creating a title, or as showing a transaction that affected the property, but merely as containing a clear and exhaustive statement of the adverse' possession which was set up by a person whose claims were admittedly limited to the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... separable part of the adverse possession proved. And if the conditions are described in terms which are definite in themselves but which distinctly specify the conditions to be those contained in a certain book, enactment, set of rules or other document, such document must, I think, be looked to, not for the purpose of making it operative, but to show explicitly what was really included in the language used to describe those conditions. And thus if the defendant had proved possession in the assertion of claims identical with those of an occupant under the Bombay Land Revenue' Code, there would have been nothing to prevent the Court from looking at that Code to see what was meant by the evidence. To do so would not make the Code affect the property or evidence any transaction. Here defendant appears from the evidence unquestionably to have held throughout in the assertion of claims identified as those which might have been set up by a person, holding under the Waste Land Rules or the documents put in as Exhibits 59, 60 and 61. And I think those documents must be looked to, not to show that defendant had rights under any such rules or documents, but to show what is meant by the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But plaintiff, though not bound by the leases, is bound by the adverse possession of the defendant. The possession of defendant noto riously holding as a permanent tenant was pro tanto adverse from the first. The cause of action having accrued during the plaintiff's minority, the plaintiff had, I think, most three years from the date of his attaining his majority in which to recover possession, and no authority has been cited to show that in such a case, time having onoe begun to ran, anything that has since occurred could stop it or give the plaintiff a new starting point. The defendant was unquestionably in possession of a very large area of land which he had notoriously converted from barren and worthless jungle into an apparently thriving colony, supplied with houses, shops, fire-engine and water-cisterns, dispensary, hospital, school and post office. There could have been no reasonable ground at any time for supposing that the defendant had done all this as a yearly tenant or as a tenancy-at-will. Nor is there any suggestion that be ever claimed to hold on any terms other than those which he Bet up from the first. There could have been no question that his possession was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decree of the lower Court and reject the claim with costs throughout. 17. The judgment of my learned colleague, Mr. Justice Starling, has been already delivered by me in accordance with consent given on behalf of the parties by their pleaders, before Mr. Justice Starling vacated his seat on the Bench. H.H. Starling, J. 18. One Dipsangji, the Thakore of Kanjeri in the Panch Mahals, died on the 7th August, 1877, leaving him surviving the plaintiff Fatesingji, who was born on the 8th December, 1874. The Panoh Mahals had been ceded by Scindia to the British Government in 1861, bub by Act XV of 1874, Act XX of 1861, the Bombay Miners' Act, had been declared not to be applicable to that district. Act XV of 1874 came into force on the 8th December, 1874. On the 29th August, 1877, the Government of Bombay sanctioned the attachment of all the property of the plaintiff's deceased father and appointed Mr. Wilson, the Extra Assistant Collector of the Panch Mahals, to manage the estate during the minority of the heir (see Exhibit 108), and from that time the plaintiff's estate was under the management of the Collector for the time being of the Panch Mahals. Before 1881 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. The defendant, however contended that since the plaintiff came of age he had ratified it: I am of opinion that this document is one capable of ratification by the plaintiff. Mr. Inverarity pressed upon the Court the language used by Lord Russell in Marsh v. Joseph (1897) 1 Ch. 246; the acts must have been done for and in the name of the supposed principle, and argued that the lease ought to have actually been made in the name of the plaintiff. I find, however, that in Bird v. Brown (1850) 4 Ex. 786 Rolfe B. in dealing with the same point says: If A.B. unauthorised by me makes a contract on my behalf with J.S., which I afterwards recognize and adopt, there is no difficulty in dealing with it as having originally been made by my authority. I think Mr. Inverarity is putting too literal an interpretation on the words of Lord Russell, and that all that is required is that the act should be done on behalf of the supposed principle, and in my opinion Exhibit 62 shows on the face of if that it was executed on behalf of the plaintiff. Has the plaintiff then ratified that lease? In order that ratification should be imputed to him he must in the first place have had a knowledge not me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1868, did not include the Panch Mahals, the repeal of Act XX of 1866 by Act VIII of 1871 did not repeal it in that district and it continued in force in 1881 and 1884. It is conceded that in any event Act III of 1877 by operation of the General Clauses Act, 1897, Section 3, Clause 7, and Section 4 was in force in the Panch Mahals from and after 11th March, 1897. It is not necessary for me to go into the question as to whether in 1881 and 1884 the Panch Mahals were British India because there was in those years as just shown some Act in force which required the registration of leases, and Act III of 1877 provides that no document which requires registration and is unregistered shall affect any immovable property comprised therein or be received in evidence of any transaction affecting such property. The three leases (Exhibits 59, 60 and 61) requiring registration and not being registered cannot be relied upon by the defendant to defend his position as a permanent tenant. What position then does he occupy? His possession had a legal origin, therefore he cannot claim to be in adverse possession as owner, contrary to the terms on which he admits he came into possession, which were t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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