Judgment

Fazl Ali J.- These appeals are directed against the judgment & 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 &141, 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, & 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 & Amrit Kumari, & 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, & Jiban Kumari got the contiguous premises, No. 141, Cotton Street. Muni Bibi & 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 & & inundation & 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., & 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 & 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, & on 15-1-1872, Jiban Kumari appointed Gourimoni Devi a shebait by a regd deed & dedicated the premises known is 141, Cotton Street, to the deity. Both Jiban Kumari & Gourimoni Debi died shortly afterwards, & Gopal Das. a minor son of Gourimoni, become the shehait of the idol. During his minority, his father, Raghubar Dayal, became his certificated guardian, & in that capacity, he executed a usufructuary mtge. deed