# MAHARAJA PRATAP SINGH BAHADUR v. THAKUR MANMOHAN DEO AND ORS

- **Citation:** [1966] 3 S.C.R. 663
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Bench:** K. SUBBA RAo, V. Ramasawami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharaja-pratap-singh-bahadur-v-thakur-manmohan-deo-and-ors-3647
- **Pages:** 9

## Headnote

Bengal Ghatwali Lands Act, 1859 (Act V of 1859), ss. 1 and 'lr-The
Court of Wards Att, 1870 (Act IV of 1870), ss. 8, 9, 13-Provisions of
former Act in respect of long leases of ghatwa(i lands in conflict wifh provisions of latter Act-Whether conditions in both Acts to be satrsfiedLease of ghatwali estate land in perpetuity-Lease executed by Deputy
Commissioner-Presumption of valid execution under s. 114 Indian Evidence Act, 1872.
A lease in perpetuity in respect of certain lands belonging to a ghatwali estate situated in the area
of present West Bengal was granted in
1873 of the predecessors-in-interest Of the
appellant for the purpot3e or
erecting dwelling houses. The lease was executed on behalf of the Estate,
which was under the management of the Court of Wards, by the Deputy
Commissioner of Santa! Pargana. In 1952 the lease was challenged by
the Ghatwal as being void. According to the Bengal Ghatwali Lands Act
1859 (Act V of 1859) such a·lease could be executed by the Court or
Wards for certain specified purposes which included the erection of
dwelling houses.
Under the Court of Wards Act 1870 (Act IV of 1870)
1tte Court of Wards could grant such a lease with the &auction of the
Board of Revenue. The trial court held that the lease was void as it was
not sanctioned by the Board of Revenue. 1he High Court held that the case
must be decided on the provisions of Act V of 1859 which was a special Act
overriding the general Act i.e., Act IV of 1870. According to the High
Court the lease was void under Act V of 1859 because it was not executed by the Court of Wards.
Even under Act IV of 1870 it was void for
want of sanction of the Board of Revenue. In appeal to this Court,
HELD : The lease was valid.
(i) The Bengal Ghatwali Lands Act, 1859 was a special Act dealing
with gbatwali lands. The Court of Wards Act, 1870 was a general enactment. On the principle generalia specialibus non derogant the provisions
of . the former Act in respect of leases of ghatwali lands would
prevail
over the provisions of the latter Act regarding lease of land under the
management of the Court of Wards.
[669 B-C]
(ii) The lease in question was for the purpose of raising dwelling
houses and thus one of the conditions in s. 2 of the Act of 1859 was satisfi:ed.
The other condition that the lease must be executed by the Court
of Wards was also satisfied in the case inasmuch as under s. 114 of the
Indian Evidence Act the official act of execution of
the lease
by the
Deputy Commissioner must be presumed to have been regularly performed i.e .. with due authority from the Court of Wards.
[669 G, HJ
(iii) Even on the footing that the Court of Wards Act, 1870 was applicable to the case, the lease could not be said to be void.
A combined
reading of ss. 8, 9 and 13 of the said Act showed that the Collector (or
Deputy Commissioner, s:nce the terms are synonymous)
could grant a
lease of land in the management of the Court of Wards in bis district; he
could grant a lease in perpetuity with the sanction of the Board of
Revenue. In the present case it could be presumed under s. 114 of the
Evidence Act that the sanction of the Board of Revenue was duly obtained.
[670 DJ
663
664
SUPREME
COURT
RBPOl.TS
[1966] 3 S.C.R
Civrr. APPELLATE!JtJRISDICTJO~ : Civil Appeal No. 35 of)963.
A
Appeal from t.he judgment and decree
dated August 9,
1960 of the Patna High Court in Aprea! from Original Decree No.
438 of 1954.
Ugra Singh and D. Goh11rdhu11, for the appellant.
Sarjoo Prasad and R. C. Prasad for respondent no. I.
U. P. Singh. for respondents nos. 2 and 3.

## Text

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MAHARAJA PRATAP SINGH BAHADUR
v.
THAKUR MANMOHAN DEO AND ORS.
F'ebruary 28, 1966
(K. SUBBA RAo, AND V. RAMASAWAMI, JJ.J
Bengal Ghatwali Lands Act, 1859 (Act V of 1859), ss. 1 and 'lr-The
Court of Wards Att, 1870 (Act IV of 1870), ss. 8, 9, 13-Provisions of
former Act in respect of long leases of ghatwa(i lands in conflict wifh provisions of latter Act-Whether conditions in both Acts to be satrsfiedLease of ghatwali estate land in perpetuity-Lease executed by Deputy
Commissioner-Presumption of valid execution under s. 114 Indian Evidence Act, 1872.
A lease in perpetuity in respect of certain lands belonging to a ghatwali estate situated in the area
of present West Bengal was granted in
1873 of the predecessors-in-interest Of the
appellant for the purpot3e or
erecting dwelling houses. The lease was executed on behalf of the Estate,
which was under the management of the Court of Wards, by the Deputy
Commissioner of Santa! Pargana. In 1952 the lease was challenged by
the Ghatwal as being void. According to the Bengal Ghatwali Lands Act
1859 (Act V of 1859) such a·lease could be executed by the Court or
Wards for certain specified purposes which included the erection of
dwelling houses.
Under the Court of Wards Act 1870 (Act IV of 1870)
1tte Court of Wards could grant such a lease with the &auction of the
Board of Revenue. The trial court held that the lease was void as it was
not sanctioned by the Board of Revenue. 1he High Court held that the case
must be decided on the provisions of Act V of 1859 which was a special Act
overriding the general Act i.e., Act IV of 1870. According to the High
Court the lease was void under Act V of 1859 because it was not executed by the Court of Wards.
Even under Act IV of 1870 it was void for
want of sanction of the Board of Revenue. In appeal to this Court,
HELD : The lease was valid.
(i) The Bengal Ghatwali Lands Act, 1859 was a special Act dealing
with gbatwali lands. The Court of Wards Act, 1870 was a general enactment. On the principle generalia specialibus non derogant the provisions
of . the former Act in respect of leases of ghatwali lands would
prevail
over the provisions of the latter Act regarding lease of land under the
management of the Court of Wards.
[669 B-C]
(ii) The lease in question was for the purpose of raising dwelling
houses and thus one of the conditions in s. 2 of the Act of 1859 was satisfi:ed.
The other condition that the lease must be executed by the Court
of Wards was also satisfied in the case inasmuch as under s. 114 of the
Indian Evidence Act the official act of execution of
the lease
by the
Deputy Commissioner must be presumed to have been regularly performed i.e .. with due authority from the Court of Wards.
[669 G, HJ
(iii) Even on the footing that the Court of Wards Act, 1870 was applicable to the case, the lease could not be said to be void.
A combined
reading of ss. 8, 9 and 13 of the said Act showed that the Collector (or
Deputy Commissioner, s:nce the terms are synonymous)
could grant a
lease of land in the management of the Court of Wards in bis district; he
could grant a lease in perpetuity with the sanction of the Board of
Revenue. In the present case it could be presumed under s. 114 of the
Evidence Act that the sanction of the Board of Revenue was duly obtained.
[670 DJ
663
664
SUPREME
COURT
RBPOl.TS
[1966] 3 S.C.R
Civrr. APPELLATE!JtJRISDICTJO~ : Civil Appeal No. 35 of)963.
A
Appeal from t.he judgment and decree
dated August 9,
1960 of the Patna High Court in Aprea! from Original Decree No.
438 of 1954.
Ugra Singh and D. Goh11rdhu11, for the appellant.
Sarjoo Prasad and R. C. Prasad for respondent no. I.
U. P. Singh. for respondents nos. 2 and 3.
The Judgment of the Court was delivered by
Subba Rao, J. The fac1s that gave rise to this appeal may be
briefly stated. In the rlaint there are three schedules, A, B and C.
We are concerned in this appeal only with schedules A and C and
nothing, therefore. need be said in regard to schedule TI. The lands
described in schedules A and C were situate in Rohini Ghatwali
Estate. When !hat btatc was in the management of the Court of
Wards, on March 25, 1873, the then Deputy Commissioner, Santai
Paragana, on behalf of the Court of Wards representing the said
Estate executed a lease in perpetuity in respect of the A schedule
property in favour of Maharaja Sir Jai Mangal Singh Bahadur, the
predecessor-in-interest of the 2nd defendant, for the purpose of
erecting dwelling houses thereon. The 2nd defendant and his
ancestors had been in possession of the said property since the date of
the said lease. The lands described in Schedule C annexed to the
plaint were not covered by the said lease, but it is alleged that the
2nd defendant and his ancestors had been in possession of the same.
The plaintiff, who is the present Ghatwal of the Rohini Ghatwali
Estate, after attaining majority on October 17, 1949, filed Title
Suit No. 37 of 1952 on the file of the Court of the Subordinate
Judge, Deoghar, for recovery of possession of the said lands on the
ground, inter alia, that they formed paf\ of his Estate and that the
lease executed by the Deputy Commissioner in respect of the A
Schedule lands was void, as it was not countersigned by the Commissioner, Bhagalporc, and that the 2nd defendant had no title to
the C Schedule lands. To that suitthe Member, Board of Revenue,
Bihar, was made the 1st defendant and Maharaja Pratap Singh,
the successor-in-interest of the lessee, being a minor represented by
the Collector of Monghyr, as representing the Court of Wards, as
the 2nd defendant. The 2nd defendant contended that the suit was
barred by limitation.
The learned Subordinate Judge held that the lease executed
on behalf of the Court of Wards, not having been sanctioned by
the Board of Revenue, became void as soon as the superintendence
of the Court of Wards was removed from the Ghatwali Estate.
So far as the lands mentioned in Schedule C were concerned, be
came to the conclusion that they were outside the scope of the lease
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PRATAP SINGH v. MANMOHAN (Subba Rao, J.)
665
of tll73 and, therefore, the plaintiff was entitled to get possession
thereof. He held that the suit was not barred by limitation. In
the result he decreed the suit of the plaintiff for possession of A
and C Schedule lands. Against
the said decree the 2nd defendant
filed an appeal to the High Court at Patna.
The said appeal was heatd by a division Bench of the High
Court. It held that the validity of the lease of 1873 should be
judged
on the provisions of the Bengal Ghatwali Lands Act,
1859 (Act Vof 1859) and not on those of Court of Wards Act, 1870,
(Act IV of 1870) and so judged the lease was void, as it was not
executed by the Court of Wards as provided thereunder. It also
held that even if Act IV of 1870 applied, the lease would be void
inasmuch as no sanction of the Board of Revenue was obtained
under s. 9 of the said Act.' In regard to the C Schedule properties•
it accepted the finding of the _learned Subordinate Judge that it
was not the subject-matter of the said lease. But it further held
that the suit was not barred by limitation. In the result, the decree
of the first court was confirmed; but in the circumstances of the
case, no order for costs was made. Hence the present appeal.
At the outset learned counsel for the appellant raised a point
for the first time before this Court that as the Rohini Ghatwali
Estate vested in the Government under the Bihar Land Reforms
Act, 1960. (Bihar Act XXX of 1950). The plaintiff had no locu&
standi to maintain the suit. When this appeal came up for hearing
before this Court on August 18, 1965 it called for a finding from
the High Court on the point whether the subject-matter of the appeal
had vested in the State Government under the said Act. Pursuant
to that order, the High Courtsubmitted a finding to the effect that
the subject-matter of the appeal vested in. the State under Notification No. 74 L.R./Zan. dated May 22, 1952, published in Bihar
Gazette issued on May 29, 1952. At the time this Court called for
a finding, no decision was given by it on the question raised by the
appellant as regards the locus standi of the plaintiff to file the suit.
After hearing arguments we now find that this is not a case where we
can dismiss the suit on the ground that the subject-matter of the
suit vested in the State Government. The suit was filed on October
21, 1952, i.e., after the Estate had vested in the Government. But
the defendants did not contest the suit on the ground that after
such vesting the plaintiff had no locus standi to maintain the suit.
Pending the appeal in the Patna High Court, the State of Bihar was
made a party to it on February 19, 1957; but the said State did not
put forward its claim to the suit property. That apart, the question
whether Basauri Ghatwali Tenure vested in the State was the
subject-matter of T.S. No. 115 of 1950 between the parties. It is
represented to us that the learned Subordinate Judge held in that suit
that the said tenure also vested in the State, that an appeal filed in the
High Court also went against the respondents and that the respon-
666
SUPlll!MI!
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IU!POllTS
[1966] 3 S.C.R.
dents would file an appeal to this Court. In the circumstances we do
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not think we are justified in permitting the appellant to raise for the
first time· before us the contention based upon the provisions of
the Bihar Land Reforms Act. But we must make it clear that we
leave open the said question in view of the fact that proceeding! are
pending in regard thereto.
The next question turns upon the validity of the lease deed of
the year 1873. The lease executed by the Court of Wards is not
filed, but the Kabuliat executed by the 2nd defendant's ancestor to
the Court of Wards is filed and it is Ex. I in the case.
Both the
parties proceeded on the basis that the terms of both the document!
are the same.
Under Ex. I, Maharaja Sir Jaymangal Singh Bahadur, the ancestor of the 2nd defendant, had taken on lease the A
·scheduled property for the purpose of erecting dwelling houses from
Brown Wood, the then Deputy Commissioner, Santhal Pargana,
on behalf of the Court of Wards representing the Rohini Ghatwali
Estate. That document was executed under ss. I and 2 of Act V
of 1859. Learned counsel for the appellant contended that the
validity of the lease was questioned by the respondents in the
plaint only on the ground that it was not countersigned by the
Commissioner of Bhagalpore, that the High Court went wrong
in invalidating it on a
different ground and that, in any view,
having regard to the fact that a period of about 80 years had elapsed
from the date of the lease, the High Court should have presumed
that the document was executed in strict conformity with the provision& of both Act JV of 1870 and Act V of 1859.
Mr. Sarjoo Prasad, learned counsel for the respondents, on tile
other hand, argued that both Act IV of 1870 and Act V of 1859 are
complementary to each other, that a lease to be valid should comply
with the provisions of both the Acts, that a lease in order to bind a
Court of Wards should be executed in the manner prescribed by
Act IV of 1870 and that, as the lea'e was not executed by the Court
of Wards as defined by the said Act with the sanction of the Board of
Revenue, it was null and void on the removal of the Estate from
the superintendence of the Court of Wards.
To appreciate the rival contentions it is necessary to consider
the scope of the said two Acts. The relevant provisions of the said
Acts may be extracted.
The Bengal Ghatwali Lands Act, 1859 (Act V. of 1859).
Section I. Ghatwals holding lands in the district of
Birbhoom
under
the
provisions
of the
aforesaid
Regulation (The Bengal Ghatwali Lands Regulation, 1814)
shall have the same power of granting leases for any period
which they deem most conducive to the improvement
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PRATAP SINGH v. MANMOHAN (Subba Rao, /.)
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of their tenures as is allowed by law to the proprietors of
other lands:
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Provided that no lease of ghatwali lands for any
period extending beyond the lifetime or incumbency of
the grantor of the lease shall be valid and binding on
the successors of the grantor, unless the same shall be
granted for the working of mines or for the clearing of
gunle, or for the erection of dwelling-houses or manu·
factories, or for tanks, canals and similar works, andshall be approved by the Commissioner of the Division,
such approval being certified by an endorsement on the
lease under the signature of the Conimissi~:mer.
Section 2. If any of the said ghatwali lands be at any
time under the superintendence of the Court of Wards, or
otherwise subject to the direct control of the officers
of the Government, it shall be lawful for the Court of
Wards or the Commissioner to grant leases for any such
purpose as aforesaid; and every lease so granted shall bevalid and binding on all future possessors of the said
lands, anything in the existing law to the contrary notwithstanding.
The Court of Wards Act, 1870 (Act of 1870)
Section 8. In every division of the provinces subject tothe control of the Lieutenant Governor of Bengal, there
shall from and after the passing of this Act, be a Court of"
Wards. The Commissioner of revenue of each such division
shall be such court, and shall have_ and exercise all
the powers and authorities conferred by this Act upon
the court over the persons and property of all wards of
such court.
Section 9. It shall be competent to the court to manage
estates and other lands falling under their charge, either
by appointment of a manager, or by giving some or all the
estates and lands in farm, or by adopting such other
form of management as may to the said court seem most
expedient. Provided that no lease or farm shall accept
under the sanction of the Board of Revenue, be given for a
term exceeding ten years, not beyond the period of expiration of the ward's minority, and provided that all leases
given by the court, or by the Collector acting for the court,
or by the manager, shall become null and void on the removal of the estate from the superintendence of the court for
whatever cause, save leases made with such sanction as.
aforesaid.
668
SUPIU!ME
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[l 966J 3 S.C.R.
A comparative study of these two Acts discloses that Act V
of 1859 is a special Act dealing with a specific subject-matter, namely, Ghatwali lands in the district of Birbhoom: it also provides for a
particular incident of the tenure, namely, the power to lease the
said lands. It says that a ghatwal holding lands shall have the same
power of granting leases as is allowed by law to the proprietors of
other lands. The proviso thereto enacts that a lease of a ghatwali
land for a period extending beyond the lifetime of the grantor ii
not binding on the successors unless the same was granted for the
purposes specified therein with the approval of the Commissioner
lignified in the manner prescribed thereunder. But s. 2 thereof
provides that in the case of a ghatwali land under the superintendence of the Court of Wards, it shall be lawful to the Court of Wards
or the Commissioner to grant leases of the same for any of the
purposes mentioned in the proviso thereto.
Jn that event, such
leases shall be binding on the future possessors of the said land. It
ia, therefore, manifest from the said sections that a Court of Wards
could grant a lease of a ghatwali land for erecting dwelling houses
so as to be binding on the future possessors of the said land. The
Court of Wards Act deals generally with the management of all
the estates that come under the superintendence of the Court of
Wards and in respect of lands in such estates, the Court of WardJ
can grant a lease of the same for a term exceeding 10 years or beyond
the period of expiration of the ward's minority only with the sanction of the Board of Revenue.
It is, therefore, clear that Act V of 1859 is a special statute and
Act IV of 1870 is a general statute. The special statute does not
make the sanction of the Board of Revenue a pre-<:ondition for the
validity of the lease executed by a Court of Wards so as to bind all
future possessors of the said land, whereas s. 9 of Act V of 1859
imposes such a condition. The argument is that both the Acts
should be read together and, if so read, the sanction of the Board
of Revenue would also be a pre-<:ondition in addition to the conditions imposed under the proviso to s. I of Act V of 1859. In our
view, such a contention is untenable. The principle of law in this
regard is well settled. In Maxwell on the Interpretation of Statutes,
the relevant principle is stated, at p. 168, thus:
"A general later law does not abrogate an earlier special
one by mere implication. Generalia
specialibus
non
derogant, or, in other words, 'where there are general
words in a later Act capable of reasonable and sensible
application without extending them to subjects specially
dealt with by earlier legislation, you are not to hold that
earlier and special legislation indirectly repealed, altered,
or derogated from merely by force of such general words,
without any indication of a particular intention to do so.
Jn such cases it is presumed to have only general cases
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in view, and not particular cases which have been already
otherwise provided for by the special Act'."
If this principle is applicable to the instant case-we do not see
any reason why it is not-the special provisions made under
Act V of 1859 in regard to the conditions imposed for the validity
of such a lease should prevail over those imposed under the
general Act, Act IV of 1870. The general Act in regard to leases
of ghatwali lands should yield to the special Act. On this construction, the condition for the validity of the lease in question is that it
should have been executed by the Court of Wards forthe purpose
of erection of dwelling houses. The lease of 1873 expressly states
that the lease was granted for erecting dwelling houses.
The only outstanding question that remains in this context is
whether it was executed by the Court of Wards.
Exhibit I purports to have been given in favour of Brown Wood,
the then Deputy Commissioner of Santhal Pargana, on behalf of
the Court of Wards representing the Rohini Ghatwali Estate for the
purpose of erecting dwelling houses under ss. 1 and 2 of Act V of
1859. The only flaw pointed out by the learned counsel is that
there is nothing in the Act to indicate that a Deputy Commissioner
can grant a lease of a ghatwali land on behalf of the Court of Wards.
But the document was ex facie executed by the Deputy Commissione
on behalf of the Court of Wards and the validity of it was not questioned till the suit was filed, that is for about 80 years. The lessee
and his successors-in-interest have been in possession of the lands
all these years. In such circumstances the presumption under s. 114
of the Indian Evidence Act can readily be drawn. Under that
section:
"The Court may presume the existence of any fact
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which it thinks likely to have happened, regard being had
to the common course of natural events, human conduct
and public and private business, in their relation to the
facts of the particular case."
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Under illustration (e) the court may presume that judicial and
official acts have been regularly performed. If an official act is
proved to have been done, it will be presumed to have been regularly
done. In this case it has been proved that the lease was executed
on behalf of the Court of Wards and that the lessee and his successors have been in unquestioned enjoyment of the said lands for many
years. Indeed, the plaintiff in the plaint does not allege that the
Deputy Commissioner was not legally authorized to Act on behalf
of the Court of Wards; his only objection is that the document was
not countersigned by the Commissioner of Bhagalpur Division.
But that condition was only applicable to a lease executed by a
Ghatwal and not by the Court of Wards. In the circumstances, wet
M II Sup.C.I./66-11
670
SUPREME
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!1966) 3 5.C.R..
think it is a fit case where the court can reasonably presume that the
Deputy Commissioner, under appropriate rules, was duly authorised
to act on behalf of the court of Wards.
Assuming that the conditions laid down in Act IV of 1870
should also be complied with, we think the respondents are not in a
better position. Under s. 9 oftl:e Court of Wards Act, the Court of
Wards can grant a lease for a term extending to 10 years or for a
period beyond the expiration of the ward's minority with the sanction of the Board of Revenue.
Under s. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards.
Under s. 9, the Court of Wards is competent to manage estates and
lands falling under its charge and one of the acts of management is
to grant leases of lands.
Under s. 13, when estates or lands of wards
are situated within more than one district but within the same
division, the Collector of each district shall exercise the duties of the
Court of Wards with respect to the ward's property situate within
his district. A combined reading of these provisions indicates that
the Collector can grant a lease of a property situate within Im
district, for, the grant of a lease of lands in his management is certainly an act of management. That he can do so is also implicit
under the provisions of s. 9, for, under that section a lease granted
by the Collector acting for the Court of Wards is valid beyond the
prohibited period if it was made with the sanction of the Board or
Revenue. On a fair reading of the provisions of the Act we have
come to the conclusion that the Collector could grant a lease in
perpetuity with the sanction of the Board of Revenue.
The only question now is whether such a sanction was given
by the Board of Revenue. The Kabuliat indicates ex facie that the
lease was granted in perpetuity by the Deputy Commissioner on
behalf of the Court of Wards. It is not disputed that the expressions' "Deputy Commissioner" and "Collector" are synonymous.
The same officer is called by both the names and he discharges the
same functions. The land covered by the lease has been in possession and enjoyment of the lessee for about 80 years. The validity
of the said grant was not questioned all these long years. Even
in the plaint its validity was not challenged on the ground that the
sanction of the Board of Revenue was not given.
For the reasons
mentioned by us in the context of Act V of 1859, in our view, this
is a fit case where we can reasonably presume that when the lease
was granted all the statutory requirements were complied with,
that is to. say the Board of Revenue gave its sanction. For the
aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff.
Now coming to C Schedule lands, the position is simple. lt
was concurrently held by the courts below that the C Schedule
property was not the subject-matter of the lease. The title to the
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PRATAP SINGH v. MANMOHAN (Subba Rao, /.)
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property, therefore, clearly vested in the plaintiff. It is also found
by the lower courts that the said property is a waste land in regard
to which there can be no effective enjoyment. The High Court,
therefore, rightly . drew the presumption that possession followed
title .
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In this view the question of limitation raised by the appellant
does not call for a decision, for in the case of the A schedule property the 2nd respondent loses on the question of title and in regard
to the C Schedule property he will be presumed to be in pos~ession.
In either view, the question oflimitation does not arise.
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In the result, the appeal is partly allowed and the decree of the
High Court is modified.
The parties will pay and receive proportionate costs throughout.
Appeal allowed in part.