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1940 Supreme(SC) 37
Privy Council At Calcutta
Sir George Rankin, Lord Wright, Justice Viscount Maugham, JJ.
Raja, Profulla Nath Tagore -Appellant
Versus
Santosh Kumar Das and another -Resopndent
Privy Council Appeal No. 33 of 1938, Bengal Appeals Nos. 7 and 41 of 1936
Decided On : 04-07-1940
Nevill, Barrow Rogers, W.W. Box and Co., J.M. Pringle, L.P.E. Pugh, W.W.K. Page
When tenures are annulled under the Bengal Tenancy Act, they cease to exist entirely. Consequently, mesne profits are assessed based on rents collected from cultivating tenants, as annulled intermediate tenures cannot qualify or reduce the liability of the wrongful possessor.
Headnote:(A) Bengal Tenancy Act, 1885 - Sections 5, 22(3), 159, 161, 167 - Transfer of Property Act, 1882 - Section 90 - Mesne profits - Assessment of profits following annulment of tenures - Where tenures have been annulled under the statutory process, they cease to exist and do not persist as ownerless interests or interests vested in the zamindar - Mesne profits in such cases are to be assessed on the basis of rents collected from cultivating tenants rather than rents payable by the now-annulled intermediate tenures.
(B) Mesne profits - Khas and barga lands - Defendant is liable for profits from such lands on the ground that with ordinary diligence they might have been received, regardless of whether the defendant actually realized any amount from them.
(C) Mesne profits - Life interest - Upon the cessation of a life interest, rents collected by the defendant from cultivating tenants are chargeable as mesne profits to the party entitled to the tenure.
(D) Mesne profits - Cesses - Cesses payable in respect of a tenure are relevant and must be taken into account in the computation of mesne profits to ensure accuracy.
Facts of the case:
Following a decree for the recovery of possession of a partial share in several tenures, proceedings were initiated to assess mesne profits for the period from 1913 to 1929. The defendant had previously obtained rent decrees and annulled certain incumbrances on the properties under the tenancy laws. A dispute arose regarding the basis of calculating mesne profits, specifically whether intermediate tenures that had been annulled should still be considered as existing interests that would qualify and reduce the amount of profits the defendant owed to the plaintiff.
Findings of Court:
The court held that tenures annulled under the law are completely extinguished and cannot be used to reduce the liability of the wrongful possessor. The defendant was found liable for rents collected from cultivating tenants where intermediate tenures were annulled. Furthermore, the defendant was held liable for profits from khas and barga lands that could have been realized with ordinary diligence, and for rents collected after the death of a life tenant. The defendant was, however, allowed credit for rents and cesses payable by the recovered interest.
Issues: (1) Whether mesne profits should be assessed based on rents from intermediate tenures or cultivating tenants when the intermediate tenures were annulled; (2) Whether cesses should be included in the computation of mesne profits; (3) Whether profits from khas and barga lands are recoverable if not actually realized; (4) Whether rents from lands previously held by a life tenant are chargeable after the tenant's death.
Ratio Decidendi: Tenures annulled under the statutory process of the tenancy act are extinguished in law; they do not remain as qualifying interests. Therefore, the defendant cannot insist on the existence of annulled tenures to limit the mesne profits to the rent payable by those tenures. Mesne profits are determined by what the rightful owner could have realized or what the defendant actually realized from the cultivating tenants.
Result: Appeal of the plaintiff's representatives allowed in part; appeal of the defendant's representatives dismissed.
Legal Category Hierarchy
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land law
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bengal tenancy act
- tenures and sub-tenures
- annulment of incumbrances
- mesne profits
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landlord and tenant law
- landlord-tenant relationship
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bengal tenancy act
Sir George Rankin:-
In this case two appeals from a decision given on 27th June 1935, by the High Court at Fort William in Bengal have been consolidated. They may be described with substantial though not with literal accuracy as brought one by the plaintiff and the other by the defendant, and as arising out of proceedings taken to ascertain mesne profits in a suit to recover possession of a number of tenures in lands lying in the village of Dashmina in the district of Bakarganj in Bengal. Strictly speaking there were two suits tried together and not one suit only, parties have on their death or for other reasons been succeeded by their representatives, there were a number of pro forma defendants in addition to the main defendant Raja Profulla Nath Tagore (now deceased but herein called the defendant); and at first his father's executors were impleaded and not himself. But such details may be waived aside and the suit sufficiently described as having been brought on 4th April 1916, in the Subordinate Judge's Court at Bakarganj by one Satya Bhusan Das against Raja Profulla Nath Tagore. The plaintiff sought to recover possession of 54 tenures described in three schedules marked ka, kha and ga attached to the plaint.
The case went on appeal to His Majesty in Council and by an Order in Council dated 21st March 1929, affirming the decision of the High Court it was finally determined that the plaintiff should recover possession of a six-annas share in 22 tenures - these tenures falling into two classes comprising 11 tenures each. Under this decision the plaintiff obtained possesssion on 12th September 1929, of what had been decreed to him and on 15th February 1930, proceedings were begun to assess what was due to him from the defendant in respect of mesne profits for the period 4th April 1913 to 12th September 1929. The date - 4th April 1913-is determined by the fact that it is three years before the institution of the suit: the wrongful possession of the defendant had begun in or about; 1907. An investigation having been made by a commissioner, the learned Subordinate Judge on 11th May 1931, passed judgment on the matters in dispute, and the case went back to the commissioner who assessed the mesne profits at Rs. 68,405. On appeal to the High Court, Mukerji and S. K. Ghose JJ. on 27th Jane 1935 gave the directions which are now challenged before the Board and assessed the mesne profits at Rs. 60,152 with certain interest and costs. Their decision was embodied in two decrees-one dismissing the plaintiff's appeal to the High Court and the other allowing on certain points the appeal of the defendant.
To ascertain the mesne profits from 1913 to 1929 it is necessary to have regard to the tenure history (if it may so be called) of the village of Dashmina, but their Lordships in referring to the history will endeavour, as far as may be, to omit irrelevant detail. The village lay within the zemindary of the defendant, a permanently settled estate named Nasirpur bearing touzi No. 2694 in the Bakarganj Collectorate. It was held by a Mahomedan family (who may be referred to as the Dashmina family) in what has been justifiably described as a complex or mesh of tenures and sub-tenures. Immediately under the zamindar they held 12 annas of the village in six separate “Jimba Taluks” and they also held a “Pattai Taluk” in two sub-divisions under the other 4 annas. Under these interests they held numerous sub-tenures. One of the members of this family was Abdul Wahed who owned a 6 annas share in the various interests of which the family were possessed. He had mortgaged his 6-annas share in some of the items to the plaintiff's father who in 1901 obtained a mortgage decree and in 1905 bought his mortgagor's share in 11 tenures at a sale in execution of the decree. The plaintiff or his father likewise in 1905 and 1911 obtained money decrees against Abdul Wahed and his heirs under S. 90, T. P. Act, and in 1910 and 1912 bought the judgment-debtor's 6 annas i
