# Mahabir Gape and Others v. Harbans Narain Singh and Others

- **Citation:** [1952] 1 S.C.R. 782
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeals Nos. 68 to 92 of 1951
- **Bench:** Mehr Chand Mahajan, Chandrasekhara Aiyar, V 1v1AN Bo SE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mahabir-gape-and-others-v-harbans-narain-singh-and-others-67
- **Pages:** 12

## Headnote

Equitable set-off-Suit by patnidar against zemindar for possession of land with mesne f"ofits-Decree t"n favour of patnidarClaim by 'zemindar to set off against m.esne profits rent_, revenue and·
cesses which accl'ited after deUvCry of t:ossession-Maintainability.
: Where a patnidar has obtained a decree against his zcmindar ·
for' possessiori .of reSU1ned challkld?ri chakran lands with mesnc
profits from· the date on which · the zemihdar wrongfully took.
\.
1
-
...
S.C.R.
SUPREME COURT REPORTS
783
possession of them, the zemindar is not entitled to deduct by
-1952
way of equitable set-off from the amount of mesne profits pay-
. ----
able by him under the decree, the amounts due to him on account Ra1a B_~uP.endra
of rent, revenue and cesses for a period subsequent to the
date Narain Szngha
of delivery_ of possession of the lands inasmuch _as the two cross
Bahadur
demands do not arise out of the same
transaction. The
transac-
.-v.
tion which led to the plaintiff's demand for mes_ne profits resulted
• Maharaj
from the
defendant's
wrongful act as
trespasser, while
the Bahadur Singh
transaction ·which gave rise to the zemindar's demand arose out
and Others.
of- the relationship of landlord and tenant and the obligations
resulting therefrom.
Mahajan J.
_ CrvrL
APPELLATE
JrnusmcTION : Appeals from the
judgments arid -decrees dated the 23rd February, 1945,
of the High Court of Judicature at Calcutta
(Akram
and Blank JJ.) in Second Appeals Nos. 861 to 885 of
1939 from the judgments and decrees dated the 16th
December, 1938, of the Court of the District Judge,
Birbhum, in Title Appeals Nos. 23 'to 47 of 1938.
Sitaram Bannerjee (Arun Kumar Dutta and Amiya
Kumar· Mukherjea, with him) for the
appellant in
Civil Appeals Nos. 68 to 74 of 1951.
Urukramdas Chakravarthy (S. 'fl/. Mukherjee, with
him) for
the respondent No .. 1. in Civil Appeals
Nos. 68 to 74 of 1951.
-
·-
Sitaram Bannerjee (Arun Kutnar Dutta and Amiya
Kumar Mukherjea, with him)
for
the appellant in
Civil Appeals Nos. 75 to 92 of 1951.
Panchanan Chose
(Chandra Nath Mukherji, with
him) for the respondents Nos. 1 to 3 in Civil Appeals
Nos. 75 to 92 of 1951.
-~
1952. April 2. The Judgment of the Court was
..
delivered by - -
MAHAJAN J.-These appeals are directed
against
the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February, 1945, reversing the judgment
and decrees passed· by the District
Judge -of Birbhum dated - 16th December, 1938. The
principal questions for
determination are the same m
102
1952
Raja Bhupendra
Narain Singha
Bahadur
v.
Maharaj
IJahadur Singh
and Others.
Mahajan /.
784
SUPREME COURT REPORTS
[1952)
all of them and can be conveniently disposed of by
one judgment.
It is necessary to set out briefly the history of this
half a century old litigation.
The seven suits out of
which arise Appeals Nos. 68
to 74 were filed
iH
September,
1904, by
Maharaja Bahadur
Singh,
in
the court
of the different Munsifs
at
Rampurhat,
against
Raja Ranjit
Singh
Bahadur, deceased, and
others, for
a
declaration of his title to the
lands
mentioned in the different suits and for mesne profits
from the year 1899. till recovery of possession.
It was
alleged that the lands in the several suits were
chowkidari chakran lands within the
plaintiff's
patnidari,
granted
to his
predecessors in interest on
14th
November, 1853, by
the ancestors of the
defendant,
that · as the lands were in the
possession of village
watchman on service tenures, they were excluded from
assessment of land revenue and no rent was
paid
on
them, that in the year
1899 under the
provisions of
sections 50 and 51 of Bengal Act VI of 1870 Government resumed
the lands,
terminated the
service
tenures and settled them with the zamindar, that in
this situation the plaintiff as patnidar became entitled
to their actual physical possession, that the zamindar
wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled
to the reliefs claimed.
The suits were

## Text

1952
Mahabir Gape
and Others.
v.
Harbans Narain
Singh
and Others.
Chandrasek_hara
· Aiyar /.
1952
April 2.
782
SUPREME COURT REPORTS
[1952]
Lastly, it was urged that the ijara by Mst. Anaro
Kuer was admittedly an oral transaction
and there
was no proof of any prohibition against the settlement
with
tenants
so far as her share (3.97 acres)
was
concerned and that the rights of the parties as regards
this area .would stand on a different footing from
the
rights in respect of the 4 acres and 29 cents belonging
to the plaintiff first party.
This point was not taken
in the courts below where the two ijaras given to
Lakhandeo Singh were dealt with as if they were part
and parcel of one and the same transaction, the rights
and liabilities, whatever they were, being common
to
both. We cannot allow the poiilt to be taken now.
The result is that the High:
Court's
decree
1s.
confirmed and the appeal is dismissed with: costs of
the plaintiffs-respondents. There will be no order as;
to costs of the other respondents.
Appeal dismissed.
Agent for the appellants: S. P. Varma.
Agent for the respondents Nos. 1 to 9: M. M Sinha.
Agent
for the
respondents Nos.
11 to
16 :.
K_. L. Mehta.
RAJA BHUPENDRA NARAIN SINGHA BAHADUR
ti.
MAHARAJ BAHADUR SINGH AND OTHERS
(Civil Appeals Nos. 68 to 92 of 1951).
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR
and V 1v1AN Bo SE JJ.]
Equitable set-off-Suit by patnidar against zemindar for possession of land with mesne f"ofits-Decree t"n favour of patnidarClaim by 'zemindar to set off against m.esne profits rent_, revenue and·
cesses which accl'ited after deUvCry of t:ossession-Maintainability.
: Where a patnidar has obtained a decree against his zcmindar ·
for' possessiori .of reSU1ned challkld?ri chakran lands with mesnc
profits from· the date on which · the zemihdar wrongfully took.
\.
1
-
...
S.C.R.
SUPREME COURT REPORTS
783
possession of them, the zemindar is not entitled to deduct by
-1952
way of equitable set-off from the amount of mesne profits pay-
. ----
able by him under the decree, the amounts due to him on account Ra1a B_~uP.endra
of rent, revenue and cesses for a period subsequent to the
date Narain Szngha
of delivery_ of possession of the lands inasmuch _as the two cross
Bahadur
demands do not arise out of the same
transaction. The
transac-
.-v.
tion which led to the plaintiff's demand for mes_ne profits resulted
• Maharaj
from the
defendant's
wrongful act as
trespasser, while
the Bahadur Singh
transaction ·which gave rise to the zemindar's demand arose out
and Others.
of- the relationship of landlord and tenant and the obligations
resulting therefrom.
Mahajan J.
_ CrvrL
APPELLATE
JrnusmcTION : Appeals from the
judgments arid -decrees dated the 23rd February, 1945,
of the High Court of Judicature at Calcutta
(Akram
and Blank JJ.) in Second Appeals Nos. 861 to 885 of
1939 from the judgments and decrees dated the 16th
December, 1938, of the Court of the District Judge,
Birbhum, in Title Appeals Nos. 23 'to 47 of 1938.
Sitaram Bannerjee (Arun Kumar Dutta and Amiya
Kumar· Mukherjea, with him) for the
appellant in
Civil Appeals Nos. 68 to 74 of 1951.
Urukramdas Chakravarthy (S. 'fl/. Mukherjee, with
him) for
the respondent No .. 1. in Civil Appeals
Nos. 68 to 74 of 1951.
-
·-
Sitaram Bannerjee (Arun Kutnar Dutta and Amiya
Kumar Mukherjea, with him)
for
the appellant in
Civil Appeals Nos. 75 to 92 of 1951.
Panchanan Chose
(Chandra Nath Mukherji, with
him) for the respondents Nos. 1 to 3 in Civil Appeals
Nos. 75 to 92 of 1951.
-~
1952. April 2. The Judgment of the Court was
..
delivered by - -
MAHAJAN J.-These appeals are directed
against
the judgment and decrees of the High Court of Judicature at Calcutta, dated 23rd February, 1945, reversing the judgment
and decrees passed· by the District
Judge -of Birbhum dated - 16th December, 1938. The
principal questions for
determination are the same m
102
1952
Raja Bhupendra
Narain Singha
Bahadur
v.
Maharaj
IJahadur Singh
and Others.
Mahajan /.
784
SUPREME COURT REPORTS
[1952)
all of them and can be conveniently disposed of by
one judgment.
It is necessary to set out briefly the history of this
half a century old litigation.
The seven suits out of
which arise Appeals Nos. 68
to 74 were filed
iH
September,
1904, by
Maharaja Bahadur
Singh,
in
the court
of the different Munsifs
at
Rampurhat,
against
Raja Ranjit
Singh
Bahadur, deceased, and
others, for
a
declaration of his title to the
lands
mentioned in the different suits and for mesne profits
from the year 1899. till recovery of possession.
It was
alleged that the lands in the several suits were
chowkidari chakran lands within the
plaintiff's
patnidari,
granted
to his
predecessors in interest on
14th
November, 1853, by
the ancestors of the
defendant,
that · as the lands were in the
possession of village
watchman on service tenures, they were excluded from
assessment of land revenue and no rent was
paid
on
them, that in the year
1899 under the
provisions of
sections 50 and 51 of Bengal Act VI of 1870 Government resumed
the lands,
terminated the
service
tenures and settled them with the zamindar, that in
this situation the plaintiff as patnidar became entitled
to their actual physical possession, that the zamindar
wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled
to the reliefs claimed.
The suits were decreed on 17th
August, 1905, and 19th August, 1905, by the two
courts respectively and the decisions were affirmed
on appeal by the District Judge. On special
~ppeal
to the High Court, the suits were remanded for trial
on the question of limitation, and after remand they
were dismissed by the trial court and the Court of
appeal as barred by limitation. On second appeal, it
was held
that the suits
were within limitation and
were then decreed for the second time. This decision
was affirmed on appeal to His Majesty in Council.
The plaintiff actually obtained possession of the lands
invol:ved in these
su~ts in August, 1913. An application was made for ascertainment of mesne profits on
..
•
•
•
•
'
)•
S.C.R.
SUPREME COURT REPORTS
785
6th November, 1918.
This was resisted by the defendant and it was
pleaded
that the plaintiff was not
entitled to interest on mesne profits, that the zamindar
was entitled to receive the profits of the disputed
lands and that deduction should be made out of the
amount of the mesne profits on account of munafa
and the amount of chowkidari dues as well as cesses
due to him or paid by him. Five years later, on
,;. · 24th June, 1927, another set of objections was filed
.....
•
•
by the zamindar claiming deduction
out of
mesne
profits 'by way of equitable set-off of the payments
made by him
subsequent to the date of delivery of
possession as well as for the amount of munafa
that
became payable to him after that date.
After a prolonged enquiry .the trial court on 18th December,
1937, decreed the plaintiff's claim for mesne profits
after allowing the zamindar the deductions
claimed
by him up to the date of assessment of mesne profits
but disallowed the amount claimed by way of equitable
set~off for
the subsequent period. The learned
District Judge on appeal reversed this decision
and
allowed the defendant the amount claimed by him by
way of equitable set-off, subject, however, to the condition that the dues of the defendant should be
deducted from the dues of the plaintiff till the defcndant' s dues were wiped off. The relevant part· of his
judgment runs thus :-
"The broad fact is that they (plaintiffs)
have been
in possession of the lands since 1910 and have been
in enjoyment of rent from the tenants from
that date
and according to law they are not entitled to possess
the land unconditionally. Now that all the facts are
before the court and the time has come for final
adjustment of accounts between the parties the court
should
try
to
do
substantial
justice between the
parties.
It is not sufficient answer to say that the
plea of equitable set-off was not raised in the beginning. The circumstances
in all these cases are
peculiar and it could hardly be expected that
such plea
would have been taken in the very beginning. The
course of litigation
in these cases has not run along
1952
Raja 13hupendra
Narain Singha
Bahadur
v.
Maharaj
Bahadur Singlt
and Others.
Mahajan
I~
1952
Raja Bhupendra
Narain Singha
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
J\1ahajan f,
786
SUPREME COURT REPORTS
[1952]
easy and smooth channels : on the contrary its course
has been extremely tortuous and disturbed frequmtly
by conflicting decisions.
No one could have reasonably anticipated in the beginning
that the litigation
would be protracted in this extraordinary· way.
It is
the duty of the court to take notice of the subsequent events in order to do justice between the parties
. ..... As we are dealing with the question of equitable
set-off, no question of time-barred debts or
unascertained sum can arise. . . . . . The plea of equitable setoff in respect of time-barred debts can be set up as a
shield by way of defence nor can any question of payment of court-fees arise. There is, in my opinion, no
substantial difference
in the character of the
respective parties during the entire period and it would be
futile
to make an attempt at
distinction by
over;
subtle argument where there is really no difference in
substance. There is considerable force in .the argument
advanced on the side of tl1e appelltant, namely, tile
appellant's claim to the equitable set-off is really in the.
nature of cross-demand arising out of the same transaction and connected in its nature and cricumstances ..... ;
From whatever standpoint the matter may be 'looked
at I am of the opinion that the claim of the appell~nt
for equitable set-off for the subsequent period by way of
deduction of the chowkidari revenue and cess .paid
by
him as well as on account of munafa should be allowed.
This amount will also carry interest at 6 per cent per
annum up to date. The subsequent!
period
means
the period since the date of delivery of possession up
to 1927-28."
Against the judgment and decrees of the District'
Judge the plaintiff preferred appeals to the High Court
at Calcutta.
The High Court by the judgment under
appeal modified the decress of the District Judge and
disallowed the claim for equitable set-off in its entirety
for the subsequent period and restored the decree of
the trial court. The zamindar filed applications
for
leave to appeal to His Majesty in Council.
These
applications were consolidated with similar applications filed in t11e
second batch of suits. A certificate
·.~
\
'
..
,,
--
S.C.R.
SUPREME COURT REPORTS
787
was granted for leave to appeal to His Majesty in
Council. By
an
order dated 9th June, 1947, all the
appeals were admitted and it was directed that the
proceedings be printed and transmitted to England.
During the pendency of the proceedings in the High
Court, Raja
Bhupendra Narayan Singh died and
the
11resent
appellant was
impleaded
as
his
heir
and
representative. An application was also made in the
High Court for permission to urge additional grounds
not already taken. After the abolition of the jurisdiction of
the Privy
Council
these
appeals
were
transmitted to this Court.
An application under Order XIX, rule 4, of
the
Supreme Court Rules was presented at the hearing of
the appeals that the appellant be allowed
to
urge
the following
additional grounds in support of the
appeals, viz.:-
(1) That the munafa (rent) should not be calculated
on the basis of
the
principles laid down in
Radhacharan v. Maharaja Raniit Singh(1).
(2) That the said munafa should have been assessed
on a fair share of the profits from the land.
The ~~econd batch of appeals. (Nos. 75 to 92 of 1951)
arises out of 18 suits instituted in
the court of the
Munsif of Rampurhat on 22nd
December,
1909, by
Ganpat
Singh and
Narpat
Singh
predecessors
in
interest of respondents 1 to 3 against the predecessors
in interest
of the appellant, late
Raja Ranjit Singh
Bahadur, and also some other persons who were
tenants under him, for a declaration of the plaintiffs'
title to the resumed chowkidari chakran lands and for
khas possession of the same and for mesne
profits~
The allegations in these suits were the same as in the
first set of suits. The defence to the suits was also
the same. The suits were decreed by the trial Judge
on 30th September, 1910, in the following terms :-
"The plaintiffs' title is declared to the lands in
suit and they will get khas possession of the same by
ejecting the tenant defendants; on condition of paying
(1) (1918)
27 C.L.J. 532.
1952
Raja Bhupendra
Narain Singh11
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
1952
Raja Bhupi:ndra
Narain Singha
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
Mahajan /.
788
SUPREME COURT REPORTS
[1952]
to t.he defendant No. 1 an additional rent, to be determined on the principle that the original patni rent should
·bear the same ratio to the patni rent now payable bv the
plaintiffs as the original H ustbood at the time of the
creation of the patni should bear to the present increased
Hustbood, or any other fair and equitable rent which
may be determined at the time of assessing the ·mesne
profits.
The plaintiffs will get W asilat from defendant
No. I up to the date of delivery of possession of the
land in suit to them. The amount will be determined
in a separate enquiry."
The District Judge on appeal remanded
the cases
for determination
of the conditions and terms under
which the patnidar was to hold the lands under the
zamindar and directed ascertainment of profits. The
plaintiffs obtained delivery of possession of the lands
in the meanwhile on 23rd November, 1910. Against
the remand order appeals were preferred to the High
Court and the 'High Court decreed the appeals in these
terms:-
"W e set aside the portion of the decision of the
District Judge which remands the cases to the original
court to determine the conditions under
which the
patnidar is to
hold the lands under the
zarnindar.
Rest of the remand order will stand. That portion of
the Munsif's decree, which imposes on the appell;mt,
as a condition of obtaining khas possession, the payment of additional rent to the zamindar
will be set
aside."
Against these decrees appeals were preferred to His
Majesty in
Council by
special ilcave. The
Privy
Council set aside the decrees of the
High Court and
observed as follows:-
"Their Lordships, therefore, see no reason for interfering with the long series of authorities
commencing
as. far back as the . year
1900,
which have
established
the right of the zamindar to have an additional rent
fixed for such 'lands not can. their Lordships overlook
the fact that in the cases already referred before
this
Board no exception was taken by the patnidar to
the
' ii
.1
•
(
'·
•
•
S.C.R.
SUPREME COURT REPORTS
789
fixing of such rents as a condition of being put into
. "
possession.
On 8th December, 1922, the plaintiffs filed applications in these suits for ascertainment of mesne profits
for the years
1906 to 1910. Objections
were
taken
on behalf of the defendant on the 17th April, 1923,
and it was contended that .the plaintiffs may be allowed mesne profits to ·the extent of the amount that
would be found due after deduction of the amount of
rent to which the defendant was entitled in respect
of the lands in suit according lb the judgment of the
munsif.
On the 28th May, 1927, another application
was filed by the zamindar
claiming deduction
by
way of equiitab'.le
set-off of the amounts due to him
for rent from 1910 onwards and on account of subsequent payment made by him towards revenue
and
cesses. After a prolonged enquiry the munsaf ultimately on the
18th December,
1937,
decreed
the
plaintiff's claim
for
mesne profits after
allowing
deductions for the amounts claimed by the defendant
up to the date of delivery
of
possession.
He held
that the appellant was not entitled to get any amount
by way of
equitable set-off in respect of sums of
money spent
by him in payment of revenue
and
cesses or for the amount of munafa or profits for the
period subsequent to the date of delivery of possession.
The District Judge on appeal! by his judgment dated
the 16th December, 1938, allowed the claim of equitable set-off for the period subsequent to delivery of
possession and
directed
that "from the plaintiffs'
dues, the dues of the defendant are to be deducted
and if after these deductions any sum is due to the
plaintiffs they will get a decree for that sum. If it
is found on calculations in some
cases that the dues
of the defendant exceed the dues of the plaintiffs, in
such
cases
the prayer · of the plaintiffs for mesne
profits must be
dismissed."
Against this decision
special appeals were pref erred to the High Court and
by the judgment under appeal the decision of
the
uial court was restored. Applications were then made
for leave to appeals to His 1\1.ajesty in. Council and
2-9 S.C. Indiaf71
1952
Raja BhupendriJ
Nargin Singhi!I
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
Mahajan f.
1952
Raja BhuPendra
N ar•io Sitizht1
Bllhadur
T.
MMharaj
Bahadur Singh
and Others.
Mah•jan /.
790
SUPREME COURT REPORTS
[1952]
those were allowed and a certificate was granted for
preferring those appeals. Because of the abolition of
the jurisdiction of the Privy Council those appeals are
now before us for decision.
The points for decision in all these appeals are the
following:-
1. Whether the appellant
is entitled to deduct
by way of equitable set-off from the amount of mesne
profits the amounts due to him on account of rent,
revenue and cesses for the period subsequent
to the
dates of delivery of possession.
2. Whether interest should
be allowed on the
amount of mesne profits found due, and if so, at what
rate.
3. Whether the rent due to the appellant from the
patnidar on those lands should be calculated on the
basis of annual assets of the land (as in Radhacharan
v. Maharaia Ranji~ Singh(')), or on a fair and equitable
basis.
The claim for set-off for the period. for which mesne
profits were claimed has been allowed and is not in
these appeals.
As regards the amounts due to the appellant by
way of rent subsequent to .the date of transfer of possession, the claim is
unconnected with the subjectmatter of the different suits.
It seems clear that a
plea in the nature of equitable set-off is not available
when the cross-demands do not arise out of the same
·. transaction. Mesne profits due to the plaintiff
relate
to the period during which the appellant
was in
wrongful possession of the lands and .the amounts
claimed by the defendant relate to a period when he
was no longer in possession and had ceased to be a
trespasser. No mesne
profits a.re claimaWe for
that
period. The right of the appellant to recover additional rents from the plaintiff arises out of a different
! cause of action and
independently of the claim for
I.
mesne profits. If the patnidar after having entered
into possession had defaulted in the payment of the
(1) (1918) 27 C.L.J. 532.
'· .• , ,
;
':
..
>
-
S.C.R.
SUPREME COURT REPORTS
791
1952
additional rents due for any period, nothing stood in
the way of the appellant from recovering
them by
appropriate legal proceedings.
The prolongation of
the enquiry for ascertainment of the mesne profits
cannot support a claim for equitable set-off for the
period subsequent to the delivery of possession to the
plaintiff.
Raia Bhupendra
Narain SingA11
Bahadur
It is obvious· that no claim for equitable set-off
against mesne profits during the pendency of the suits
could be made for the sums deduction of which is now
sought, as the amounts had not then accrued due and
his
right to them had not yet arisen. The learned
District Judge was in error in holding that the
appellant's claim for equitable set-off was in the
nature
of a cross-demand arising out of the same transaction
and connected in its nature and
circumstances.
He
failed to appreciate that the transaction which led to
plaintiff's
demand
r~sulted tfrom the
defendant's
wrongful act as a trespasser, while the transaction
giving rise to the appellant's demand arises out of the
relationship of landlord and tenant and the obligations
resulting therefrom.
A wrongdoer who has wrongfully withheld moneys belonging to another
cannot
invoke any principles of equity in his favour and seek
to deduct therefrom
the amounts that
during
this
period have fallen due to him. There is nothing improper or unjust in telling the wrongdoer to undo his
wrong, and not to take advantage of it. Such a person
cannot be helped on any principles of equity to recover
amounts for the recovery of which he could have
taken action in due course of law and which for some
unexplained reason he failed to take and which claim
may have by now become barred by limitation.
It was contended that it was only after the decree
of the Privy Council that the appellant's rights to the
additional rent was finally established and till
then
no legal steps could be taken to enforce this demand.
The
contention
is
without force.
The appellant's
right to additional rent had been established
by the
decree of the trial court in execution of which possession passed from him to the patnidar. 'fhe Privy
v.
Maharai
Bahadur SingA
and Others.
Mahajan J.
1952
.---
Raia Bhupendra
Narain St'ngha ..
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
Mahajan /.
792
SUPREME COURT REPORTS
[1952]
Council only affirmed this decision.
The patnidars
under the decree were entitled to possession
of the
lands conditional on payment of the additional
rent
due for the period they had been out of possession.
That condition having been fulfilled (by
adjustment
of the appellant's claim against
the mesne
profits),
the decree must be held to have been
satisfied,
thus
completely settling the cross-demands. The landlord's
demand for subsequent rents has to be enforced in the
ordinary way in the civil court if any default has been
committed in the payment of these rents. This claim
cannot for ever remain linked with the demand for
mesne profits for any anterior period. The result
1s
that the decision of the High Court on
this
point is
maintained.
On the question of future interest payable on the
decretal amount, the
learned District Judge observed
as follows:-
"I may state, however, at this stage that if I were
to rule out the fact that I am allowing the claim of the
appellant for equitable set-off, I would have allowed
interest to the plaintiffs at the uniform rate of 4 per
cent. per annum throughout, i.e., from the beginning
'•.
of the W ashilat · period up to date: As I am allowing
the prayer for equitable set-off, I am of opinion, however, that interest at the usual rate at 6 per cent. per
annum should be granted for the whole of this period."
The High Court disallowed equitable set-off but yet
maintained this decision. When
the claim for equitable set-off is being disallowed, there is no justification
for allowing future interest at the rate of more than
1'
four per cent. for such a long period, particularly in a
case where the plaintiff himself has not been prompt
in getting
the amount of mesrie profits ascertained.
The plaintiff did not even ask for an enquiry into this
question· for a period of about
twelve years. Taking
.into consideration all the circurristances of the case we
•
, think that future interest .should · not have been allow-
. ed to the' plaintiff in the several suits at a higher rate ,.i.. ..
. than four per cent: on the amount decreed in the vari-
·<$ suits by way 'of mesne :profits. ·
·--
--
t ...
S.C.R.
SUPREME COURT REPORTS
793
The appellant's last contention that the munafa
(rent) should not be calculated on· the principle laid
·down in Radhacharan v. · Maharaja Ranjit Singh (1)
but should have been assessed on a fair share of the
profits of the land has no substance because the claim
was not made in the grounds of appeal to the Privy
Council and was not even mentioned in the additional
grounds of appeal. It was for the first time made before us at the hearing and we see no valid grounds for
·entertaining it at this late stage. Moreover,
it seems
to us that the claim has no substance in the absence
of any .evidence about the proportion the original patni
rent bore to the r.evenue and cesses.
For the reasons given above all these appeals fail
except to the extent that the decree of the High Court
is modified in that the amounts decreed by way of
mesne profits in the various suits will bear interest at
the rate of four per cent. instead of six per cent. The
· parties will bear their own costs in all these appeals.
Appeals dismissed.
Agent for the appellant in Civil Appeals No. 62 to
74 :lJ.ld 75 to 92 : P. K. Bose.
'W
Agent for respondent No. 1 in Civil Appeals Nos. 68
•
•
to 74 : Ganpat Rai.
Agent
for the
respondents
Nos. 1 to 3 m
Civil
· Appeals Nos. 75 to 92 : Sukumar Ghose.
MUSAMMAT PHOOL KUER
ti.
MUSAMMAT PEM KUER AND ANOTHE.lt.
PANDIT MADAN MOHAN
v.
MUSAMMAT PEM KUER AND ANOTHER .
[MEHR CHAND MAHAJAN, CHANDRASEKHARA AIYAR.
and VMAN BosE JJ.]
Hindu
law-Widow-Surrender 'to
next
reversioner
and
stranger-Validity-Compromise
by
widow-When
binding
O#
reversioner.
(1) (1918) 27 C.L.J. 532.
1952
Raja Bhupendra
Narain Singha
Bahadur
v.
Maharaj
Bahadur Singh
and Others.
Mahajan /.
1952
April 24