TMI Blog1947 (10) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s surrender of his mokarrari rights to the estate. Hence, he claimed occupancy right in the lands and advanced plea of estoppel against the plaintiff grounded on his subsequent ratification of the settlement and recognition of the holding. The other contentions raised in the defence were not pressed in the Courts below and have not been taken up in this Court. 2. Before the trial Court, there was an issue of limitation; that too has since been abandoned. The material issues on which the parties went to trial were: 2. Is the settlement of the suit land with the defendant valid, legal and binding on the plaintiff? 3. Has the defendant acquired occupancy right in the suit land? If so, can he be ejected? 4. Is the plaintiff entitled to mesne profits? If so, what amount.? 3. The trial Court answered the first two issues in the negative and the last one in the affirmative. The reasons assigned by the trial Court were: (1) that the settlement with the defendant was not for the benefit of the estate; (2) that the manager was not vested with the power of making permanent settlement of lands (vide Rule. 70 and 228, Court of Wards Manual 1927, corresponding to Rule. 65 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss myself first to this aspect of the question. The determinative facts are : (1) that the defendant from the time of his ancestor was holding mokarrari interest in the village since its creation in the eighties of the last century. In order to indicate the danger to the estate in the ancient character of the mokarrari interest, Mr. De invited my attention to a decision of the Privy Council in Kamakhya Narain Singh v. Ram Raksha Singh A.I.R. 1928 P.C. 146 where it was held: Where on the death of the grantee of a mokarrari istimrari patta, which upon its true construction is for life only, his heirs or assignees remain in possession claiming contrary to the contention of the grantor that the patta is permanent and heritable, they do not become tenants from year to year either under Section 116, T.P. Act, 1882, or otherwise by operation of law. The possession of the heirs or assignees, and of those claiming from them, is adverse to the grantor for the purpose of the Limitation Act, 1908, Schedule 1, Article 144, unless the grantor has recognised the existence of a tenancy so that the relationship of landlord and tenant is created. 8. The core of Mr. De's contention is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular act is for the benefit of the property and the advantage of the-ward. This principle is deducible from the language employed is by t the Legislature in enacting Section 18 of the Act. I consider this section to be the keynote to the legislation providing for proper management of ward's estate by the Court. The material part of the section is phrased as follows: The Court may direct the doing of all such other acts as it may judge to be most for the benefit of the property and the advantage of the ward. 10. I lay emphasis upon the words as it may judge, I shall not be understood to say that the Court should in all circumstances be considered to be the final Judge; but at the same time it would not be correct to hold that the civil Court, while sitting on judgment upon the prudent character of any act of the Court, it will weigh the matter with a golden scale. A considerable amount of latitude must be permitted to the authority concerned. The wisdom and sagacity of the said authority must be presumed. Mr. Jha contends that the only prudent management of a ward's estate (proprietary) is to preserve the zirat lands by granting settlements on bhaoli rent by re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of rights in which the lands were recorded as zirat was published in the year 1910-1911. 12. The next question whether -the manager overstepped the limits of his delegated powers must be considered in the background of the fact that the settlement was bona fide (?), beneficial and advantageous to the wards' estate. For the purpose of establishing that the settlement was ultra vires the powers of the manager, reliance has been placed upon certain rules framed under Section 70 of ix (B.C.) of 1879 (Court of Wards Act). The section so far as is material for the purpose in hand reads: The Court may make rules consistent with this Act and generally for the better fulfilment of the purposes of this Act. The Court may from time to time alter, add to, or repeal such rules. 13. The learned lower appellate Court has entered into a long discourse regarding the legal efficacy of these rules. He is of opinion that as there is nothing in the statute providing that these rules will have the force of law, he should not ascribe such force to these rules. Though I am not inclined to overrule this view as completely baseless, I consider the rules binding, confining myself to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olding is less than ₹ 10. The reduction in any one year should not exceed ₹ 100 and must be reported to the Collector. When the holding is mukarrari, the Commissioner's sanction is required to resettlements or reductions in rent. 14. This rule was replaced by correction slip No. 48, dated 15-7-1926, which reads: Under Section 18 to sanction the creation of occupancy or non-occupancy holdings or the resettlement of holdings with occupancy or non-occupancy raiyats at' higher or lower rents than were paid previously and to sanction reductions of rent due to relinquishment of holding, death and desertion of raiyat3, diluvion of lands or any other cause, when the rental of each holding so created or resettled does not exceed ₹ 50 and the reduction in each holding is less than ₹ 10. The reduction in any one year should not exceed ₹ 100 and must be reported to the Collector. When the holding is mokarrari, the Commissioner's sanction is required. 15. As I have already said, the rule is nothing but definition of the powers delegated to the manager in the matter of settlement and resettlements. The rule opens with the words: Under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amakshya Narain Singh v. Kheyamian reported in A.I.R. 1948 Pat. 160 and Kamakshya Narayan Singh v. Kanti Kumar Second Appeal No. 977 of 1946. The former lays down directly that non-compliance with Rule 241 of a later manual, which corresponds to Rule 228 with which I am dealing makes the settlement of the zirat land ultra vires. In that case in settling a zirat land the lease was effected without a registered document. This was in direct contravention of the procedural rule. In the other case, the questions for consideration were whether the rules were ultra vires and whether the permanent lease was in accordance with the rule. The Court held that the rules were not ultra vires. In this connection reliance was placed on the unreported decision just stated above. With regard to the granting of the permanent lease, it was held that under ordinary circumstances, the manager had no power to grant such lease. Manohar Lall J. observed: Has the rule then been complied with in this case? To begin with, the impugned lease is a permanent lease. Therefore, the rule is at once infringed. No facts have been found or brought to our notice to show that any extraordinary circumstances existed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existence of certain powers cannot be argued inferentially from omissions of what could have been if so intended, expressly provided. But here in this case the manager has been delegated the power to sanction settlement. What are the limitations to this settlement have also been provided for in Rule 72, and I have already dealt with these limitations. Besides them we cannot imply other limitations simply because according to the tenancy law, such limitations will be more beneficial in the interests of the disqualified proprietor. Whether such limitations will be introduced into the rule because their introduction would make the management more beneficial to the ward's estate, in the light of the provisions in the Chota Nagpur Tenancy Act barring accrual of occupancy rights in 'zirat lands, is well answered by the limitations, provided in Section 18 of the Act, to the General Power of the Court which also applies to the powers of the Court's delegates. Whether a precaution should be taken in a particular case, to prevent accrual of occupancy in respect of some zirat lands will be a matter for judgment of the officer concerned within the meaning of Section 18 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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