Judgement

Appeal (No. 99 of 1920) from a judgment and decree (December 16, 1918) of the High Court, affirming a decree of the Subordinate Judge of twenty-four Parganas.

The suit was brought by the Official Receiver, as receiver of certain property appointed by a decree of the High Court dated August 2, 1912, to recover from the respondents khas possession of a garden. The respondents by their defence relied on a mukarari lease of the garden to them dated March 14, 1910, and purporting to be granted by “Protap Chandra Ghosha, by his attorney Bhupendra Sri Ghosha." The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge dismissed the suit, holding that Bhupendra who executed the lease had authority from Protap Chandra Ghosha to do so.

The High Court affirmed the decision. The learned judges (Chitty and Panton JJ.) agreed with the findings of the trial judge that no question of legal necessity arose, and that the price was adequate. In their view Protap Chandra, having regard to the decree of August 2, 1912, was not a trustee of the property but in the position of a karta or manager of secular property, and that in that capacity he could empower Bhupendra to lease the property, and had done so. The lease accordingly was held to be binding.

1921. Oct. 31 ; Nov. 1. Dunne K.C. and E. B. Raikes for the appellant.

De Gruyther K.C. and Kenworthy Brown ion the respondents. The arguments proceeded upon the facts.

Nov. 1. The judgment of their Lordships was delivered by

LORD BUCKMASTER. On March 14, 1910, a document was executed by Bhupendra Sri Ghosha, purporting to act on behalf and as attorney of his father, Protap Chandra Ghosha, by which a garden at Tallah was granted to the respondents under a mukarari lease, at the annual rent of Rs.125, and a premium of Rs.3000. The respondents on the execution of the lease entered into and have since remained in possession of the property.

The question raised in this case is whether the lease conveyed to them any title at all. It is challenged in the following circumstances The property in question originally belonged to Hara Chandra Ghose, who died in 1868. He was survived by his widow, four sons and two daughters. On May 7, 1880, a trust deed was executed by all the interested persons, by which the property was placed in the hands of trustees for certain religious and charitable purposes. The two first trustees under the deed were the widow, Srimati Padmabati Dasi, and her eldest son, Sri Protap Chandra Ghosha. The deed contained the statement that upon the death of the widow the eldest son, Protap, should be the sole trustee, and on his death the second son, Sri Sarat Chandra Ghosha, should be the sole trustee, and so on. It also provided that during the absence of any trustee for over one year during his life, the person entitled to be the trustee immediately in succession to him should be appointed to the office of trustee for the time being. It is unnecessary to consider the exact terms of the deed or the nature of the trust for which the property was conveyed. For the present purpose it is sufficient to say that until the deed was challenged by a family suit that was instituted in 1910, it was accepted as creating a good trust, and the persons named were assumed to be exercising the duties of trustees. On April 16, 1900, the widow died, and from that time Protap became, by the terms of the deed, the sole trustee. On December 31, 1900, he left Calcutta, and he only returned twice afterwards, the first of the two visits being after the execution of the lease. The lease was, as has been stated, executed by Bhupendra Ghosha, and all the preliminary negotiations and transactions must have been carried out by him, or some one on his behalf, because the evidence of Protap, which has been taken at some considerable, length, makes plain that he had no knowledge of the matter until after it had taken place. He was asked when he was told that the land had been sold or perp