Sankar Prasad Misra vs Brajamohan Deb

James, J.—When in 1849 the tributary state of Sambalpur lapsed to the East India Co. on the death, without male hairs, of the last Ruling Chief, part of the provision which was made for the junior Rani was a grant of a tenure in village Kilasama. The rights of a headman (lambardar or gountia) in this village were conferred upon Rani Janakpriya Dei in 1850 by a settlement for three years at a rent of Rs. 163; and again in 1853 for a term of five years at a rent of Rs. 204, This term was apparently extended, since the Rani was holding on the same conditions in 1865 when she was given a permanent status as gountia.

At the settlement of 1877 the assessment was raised to Rs. 235. There was another settlement in 1888 of which the terms have not been brought on the record of the present case; and in 1905, at the settlement of Mr. Dewar, the rent was raised to Rs. 468. After the death of Rani Janakpriya Dai her daughter Asha Kumari succeeded her, who had married Raja Udit Pratap Deb, the Ruling Chief of Kalahandi. Asha Kumari died on 15th August 1905, after adopting a son who was the father of the present Ruling Chief of Kalahandi. Rani Asha Kumari also left a daughter, Amulya Kumari, who was married to the Ruling Chief of Sonepur.

In 1905, when Asha Kumari died, the Ruling Chief of Kalahandi was a minor, and his estate was administered by Ramkrishna Misra, a Superintendent appointed by Government, who worked under the supervision of the Political Agent. After the death of Rani Asha Kumari, the mother of the present Raja Ramohandrapriya Debi, locally known as the Patrani of Kalahandi, obtained the entry of her name as gountia of village Kilasama in the Collectorate register of Sambalpur. But the Superintendent had taken possession on behalf of the Ruling Chief of Kalahandi; and the Political Agent at his instance obtained revision of the order for entry of the Patrani's name, with the result that the name of the Raja was substituted.

On 28th September 1905 Ramkrishna Misra wrote a letter to the Political Agent at Raipur, informing him that he was about to visit Kilasama and proposing that a shikmi gountia or thekadar should be appointed in order to manage the village. The Political Agent approved of this suggestion and directed that the terms of the proposed settlement should be sent to him for approval. Sambalpur district and Kalahandi State were transferred in October 1905 to the Government of Bengal and so came under the supervision of a new Political Agent who was stationed at Sambalpur. Ramkrishna Misra, addressing the navy Political Agent in January 1906, gave an account of the assets of Kilasama, recommending that one Achutananda, Panda should be appointed as shikmi gountia on terms which would involve the annual payment to the Ruling Chief of Kalahandi of a net sum of Rs. 47.

There were five mango groves and gardens in Sambalpur which had been in possession of the late Rani, apparently under a doubtful title; and the Superintendent proposed that Achutanand Panda should manage this property also. The Political Agent approved of the proposal that Achutananda Panda should obtain a temporary lease as shikmi gountia, but there was some discussion regarding the terms of the lease, Achutanand Panda desiring a longer-term than that of the current settlement which would expire in 1925. While the terms of the lease were under discussion possession of the village was given to Achutanand Panda in June 1906. The Patrani of Kalahandi now informed the Political Agent that Achutanand Panda, was the father-in-law of Ramkrishna. Misra's son.

After having ascertained on enquiry that Achutanand's daughter was about to be married to Ramkrishna. Misra's son, the Political Agent informed Ramkrishna Misra that this might be treated as a reason for refusing to Achutanand Panda the lease which had been proposed. Ramakrishna Misra replied with a long letter to the Political Agent, stating that it was through mere oversight that he had omitted to mention his contemplated relationship with Achutanand, and protesting that he himself had no interest in the proposed sublease. In view of this intended relationship the Political Agent before finally sanctioning the lease reported the facts to the Commissioner of Orissa, who in due course expressed approval of the grant of a sublease to Achutanand for the period of the current settlement of Sambalpur.

In February 1908 Ramkrishna Misra, on whom the title of Rai Bahadur had now been conferred, retired from Governmenb service and came to live in Sambalpur. On 28th July 1908 Achutanand Panda asked the Political Agent for permission to execute a sublease in favour of the Rai Bahadur, saying that he found that he had sufficient to do in looking after his own villages; and at the same time Ramkrishna Misra asked that he might be permitted either to take over the existing lease or to take a sublease from Achutanand. On 31sfc July 1908 the Political Agent, Mr. Cobden Ramsay, reported the facts to the Commissioner, who on 15th August, sanctioned the proposal that there should be a sublease of Kilasama and the gardens to the Rai Bahadur. In due course Achutanand resigned his leases; and leases on the same terms were granted to the Rai Bahadur on 2nd September 1908, by Mr. A. N. Moberly who was then Political Agent.

On 20th January 1909, the Eai Bahadur applied to the Political Agent for some protection from ejectment on the expiry of the term of the lease in order &hat he might safely begin to lay out money on improvements. The Political Agent referred the matter to the Commissioner of Orissa for advice, pointing out that the village had been terribly neglected, that improvements were necessary, and the shikmi gountia could not be expected to spend money upon improvements if he merely held under a lease which would expire with the current settlement. He proposed that the lease should be revised if the Rai Bahadur should be able to satisfy him that he had spent two thousand rupees on Improvements. u/s 65-A, Central Provinces Land Revenue Act (18 of 1881, as amended by Act 12 of 1898, which is still in force in Sambalpur), if the Deputy Commissioner is satisfied that a thekadar of a village (a term which by the definition in the Act includes a shikmi gountia), has made substantial improvements, the Local Government may grant to the thekadar what is called protected status. The person enjoying such status does not become a tenure-holder at fixed rent; but he escapes liability to ejectment on the expiry of his lease, and he is entitled to demand renewal of the lease on terms which in the absence of any agreement between the thekadar and his landlord may be settled by the Deputy Commissioner.

After some correspondence between the Political Agent) and the Commissioner of Orissa, it was decided on the suggestion of the Commissioner that if the Rai Bahadur should qualify for protected status by spending a substantial sum on improvements, an application to the Deputy Commissioner for grant of the status would be supported. Accordingly, on 19th May 1909 the Political Agent informed the Rai Bahadur that if he would spend two thousand rupees at once on the improvement of the village, and a further considerable sum of money next year, and if he should be able to show that he had effected actual improvements which would qualify him for protected status u/s 65-A,"Central Provinces Land Revenue Act, ho would be recommended for it.

The Rai Bahadur thereupon began to lay out money on improvements; and at the end of 1910, after he had spent Rs. 2,742, he applied to the Political Agent that he might be recommended for protected status. He was directed to make his formal application to the Deputy Commissioner of Sambalpur. On 19th April 1911, the Rai Bahadur again wrote to the Political Agent, informing him that he was about be make his application for protected status, and requesting that the improvements which he had made might be inspected on behalf of the Kalahandi state. The Rai Bahadur in due course applied for protected status; and on 23rd June 1911 this status was granted by the Board of Revenue of Bengal, to whom the powers exercised by the Local Government u/s 65-A, Central Provinces Land Revenue Act has been delegated. The Rai Bahadur until his death in 1912, and his son after him, continued to spend money on improvements until they had expended a sum of over 26 thousand rupees, as appears from the estimate of Babu Indu Sekhar Bhattacharjya, formerly District Engineer of Sambalpur, to whom a commission was issued for that purpose in the present case

In 1917, the Maharaja of Kalahandi on attaining majority took charge of his State and his property. He continued to accept the rent from the shikmi gountia in accordance with the lease of 2nd September 1908 until 4th March 1925.

In 1924 settlement operations were in progress for revision of the revenue settlement of Sambalpur district, of which the term was about to expire. On 25th February 1924, the Ruling Chief of Kalahandi wrote to the Political Agent, raying that he did not intend to renew the lease which ''had been granted to Rai Bahadur Ramkrishna Misra, and requesting that the Political Agent would move the Settlement Officer of Sambalpur to record the fact that the sublessee would have no right in Kilasama village after the expiry of the term of the current settlement. The Political Agent forwarded the. Ruling Chief's letter to the Settlement Officer, and at the same time advised the Chief to send his Dewan to Sambalpur in order that he might ascertain all the facts regarding village Kilasama and make a regular claim before the Settlement Officer. On 17th March the Political Agent wrote to the Ruling Chief, informing him that on account of improvements effected in the village protected status had been granted to Rai Bahadur Ramkrishna Misra in 1911.

An objection was in due course taken in the settlement Court to the entry in the village khewat of the name of Sankar Prasad Misra, son of the Rai Bahadur; but by his order of 11th June 1924, the Settlement Officer declined to cancel the entry because Sankar Prasad Misra was the landlord actually in possession of the village, and the grant of protected status could not be ignored. The Ruling Chief accepted rent from Sankar Prasad Misra for the last time on 4th March 1925. On 20th April, the Settlement Officer requested the Ruling Chief to sign the kabuliyat and the wajibularz for the new settlement; but ''the Chief declined to do so on the ground that the late Ramkrishna Misra had obtained his lease by fraud when the was trustee of the Chief's property 5n his capacity of Superintendent of the State, and he intended to obtain redress in the civil Court. On 28th June 1925, the Ruling Chief declined to accept the rent which had been deposited by Sankar Prasad Misra, and stated that he would not accept any further payments.

The suit out of which this appeal arises was instituted by the Euling Chief on 9th July 1925. The plaintiff alleged that the ''defendant's father had obtained his sub-lease by fraud while he was the plaintiff's guardian and trustee. Particulars of the alleged fraud were not given in the plaint beyond the allegations that Achutanand Panda was really a benamidar for Rai Bahadur Ramkrishna Misra and that the lease was obtained at a grossly inadequent rent.

It was further alleged that Rai Bahadur Ramkriahna Misra had no authority to deal with the property of the Kalahandi State or of the Chief which might be situated in British India; that the Political Agency had no such authority, and further that the Political Agent had no authority to grant leases either in the State or out of it. It was further alleged that the Rai Bahadur fraudulently applied for protected status; but no particulars were given of the fraud committed by the Rai Bahadur in that proceeding; and it may be said at once that it is conceded before us that it cannot be made out that there was any fraud in the actual proceedings which led up to the grant of protected status. The plaintiff alleged that he had been kept out of knowledge, by the fraud of the Rai Bahadur, and subsequently by that of his son until 21st March 1924, of the nature of the title of the Rai Bahadur, so that limitation would begin to run from the time when the plaintiff came to full knowledge of the facts. It was also alleged that the Political Agent had no power to grant the lease of 2nd September 1908, because he had referred the matter to the Commissioner who had given his sanction only to & sublease from Achutanand Panda. There was a further allegation that Shyata Sundar Panda, the Superintendent of the Political Agent's Office, had acted in collusion with the Rai Bahadur in placing his proposals before the Political Agent.

The defendant contested the suit. In the first place, though the ground was not the first taken, the defendant denied the plaintiff's title, alleging that Kila sama village was the atridhan property of the widow of the Ruling Chief of Sambalpur, and that it would properly descend as stridhan to the daughter of Rani Asha Kumari Debi and not to the Ruling Chief of Kalahandi. Objection was taken that no reply could be made to the general allegations of fraud unless particulars were furnished as required by Order 6, Rule 4, Civil P.C. This was followed up by an application for further and better particulars, but no further particulars were furnished by the plaintiff.

The defendant also contended that the civil Court had no jurisdiction to question the validity of the order of the Local Government by which protected status was granted to his father, by virtue of the provisions of Section 152, Central Provinces Land Revenue Act. He further contended that the suit was barred by limitation, since the plaintiff had not instituted it within three years of the removal of the disability which lay upon him while his property was being administered by the paramount power. For the rest, the defendant denied the allegation that the original lease was a benami transaction, or that it was obtained for a grossly inadequate rent. The parties went to trial on the following issues, of which issues 6 and 8 we''re struck out at the trial:

Has this Court jurisdiction fco try the suit?

Is the protected status certificate granted by the revenue authorities in respect of this suit village null and void? Can this Court question the order of the revenue authorities in this respect?

Is the lease in question fraudulent and ultra vires as alleged? Can this Court question the validity of the lease on the basis of which the revenue authorities have granted protected certificate to this defendant's father?

3a. Had the Political Agent any legal authority to deal with the Kilasama village situate in British territory?

3b. Could the then Superintendent deal with the village in suit under the authority of the Political Agent?

3c. Did the Political Agent obtain sanction only for a sublease of the Commissioner? If 80, had the political Agent any authority to give a lease in contravention of the Commissioner's orders?

Has the plaintiff ratified the lease on attaining his majority and is the plaintiff estopped from questioning the same?

Was the plaintiff kept out of the knowledge of the nature and title of the delendant and his father in respect of the suit village as alleged?

Has the plaintiff any cause of action?

Have the particulars of the fraud in respect of the base, protected status certificate, and the plaintiff's knowledge regarding them been specifically raised in the question of fraud?

Is the suit as framed legally maintainable?

Is the suit barred by limitation?

Did the defendant or his father ever hold the suit village as a trustee or guardian on behalf of the plaintiff as alleged?

Has the defendant acquired the rights of a thekadar or shikmi gountia in respect of the suit village by adverse possession for more than 12 years?

Is the story of improvements in respect of the suit village illusory as alleged if not, what is the extent of the improvements effected by the defendant and his father and at what cost?

Is the plaintiff entitled to recover the raiyati lands acquired from the tenants and reclaimed out of gochar lands by the defendant and his father as alleged? If so, on what terms?

Is the defendant in possession of the entire bhogra Iands in claim?

Is the plaintiff entitled to mesas profits in claim?

Was Achutananda Panda holding the suit village as benamidar for the defendant or his father as alleged? Was the Ieass granted to Achutananda Panda bona fide?

Did Achutananda Panda surrender the lease as alleged?

Has the defendant constructed khamar houses in the village, and, if so, at what cost?

Have the defendant and his father brought the suits referred to in the written, statement, and, if so, what wore the costs of litigation? Is the defendant entitled to recover compensation in respect of such costs?

Is the plaintiff entitled to eject the defendant from the suit village, and, if so, on what terms?

To what relief or reliefs is the plaintiff entitled?

Has the plaintiff any title to the disputed mauza?

Can the defendant question the title of the plaintiff to the village in suit?

On the most important questions of fact arising in this case, the Subordinate Judge of Sambalpur found that the original lease was a benami transaction, that the true beneficiary was Rai Bahadur Ramkrishna Misra himself, and that the lease was obtained at a grossly inadequate rent; therefore the transaction was vitiated by fraud, and the lease was liable to be set aside Since Rai Bahadur Ramkrishna Misra, when the lease was executed, was in a. fiduciary position, he became a constructive trustee u/s 88, Trusts Act, holding the property for the benefit of the Ruling Chief. On the question of the plaintiff's title he found that the property, was stridhan which, after the death of Rant" Asha Kumari Dei, would have lawfully passed to her daughter Amulya Kumari, and that the plaintiff had failed to prove that he had a title to the property by inheritance; but since he had been in possession for twenty years before the institution of the suit, that fact conferred on him the right to sue in ejectment, in the absence of proof that there was any other person with better title to the property. He further held that since the defendant's title was based on a lease granted in the name of the plaintiff, he was estopped from denying the plaintiff's title. On the question of limitation he found that the plaintiff had been kept from knowledge of the benami nature of the original transaction by the fraud of the defendant and his father until he was put upon his enquiry by the discovery that the lessee had obtained protected status, when on investigation of the original transaction he discovered its true nature; therefore, since the plaintiff had been kept out of knowledge of the nature of the original transaction by the fraud of the Rai Bahadur, limitation did not begin to run until the fraud was discovered.

The Subordinate Judge found that considerable improvements had actually been made by the defendant and his father; but since the Rai Bahadur was in occupation as a fraudulent trustee no allowance could be made for improvements which he had effected. He held, however, that the defendant was entitled to allowance for improvements made by him after his father's death. The suit was accordingly decreed with a direction that the plaintiff should recover possession of the village, and that an account should be taken, the defendant being liable for rents and profits which he had realized since his father's death, minus the amount spent by the defendant on improvements.

The defendant appeals from that decision. A cross objection has been preferred on behalf of the plaintiff claiming that the account should be taken from 28th June 1906, when Achutanand Panda obtained possession of the village on behalf of Ramkrishna Misra and further supporting the decree on grounds which were decided against the plaintiff by the Subordinate Judge, which will be considered in due course. Mr. P.K. Sen in arguing the appeal has discussed the points raised in the order in which the issues are taken in the judgment of the learned Subordinate Judge, and it will be convenient to observe this order in discussing the arguments on behalf of the appellant and respondent.

The first issues discussed by the learned Subordinate Judge are issues 22 and 23 of the suit which were the first, taken by Mr. P.K. Sen in his argument. The learned Subordinate Judge has found that the property was stridhan of the widow of the last Ruling Chief of Sambalpur, but that the plaintiff has a possessory title and that the defendant is estopped from challenging it. The respondent has preferred a cross objection to the finding of the learned Subordinate Judge that Kilasama was the stridhan property of Rani Janakpriya Dei.

The circumstances in which the grant of the village was made after the Government of India had taken possession of Sambalpur on the death of the last Ruling Chief have been mentioned above. Mr. P.K. Sen argues that with the lapse of his ruling powers, the status of the Ruling Chief as a proprietor in Sambalpur definitely came to an end, and that when a new grant was made to the widow it must have been made to her personally and not in her capacity as widow of her husband. On the question of whether this was a completely new grant or merely confirmation of Rani Janakpriya Dei's possession of property which she had held before her husband's death, the evidence is not clear; but on the whole it appears to be probable that this was an entirely new grant. In the first kabuliyat executed by Rani Janakpriya Dei on 16fch November 1850 (Ex. L-4) the Rani says that she will not pay abwabs, kanthipatti, nazrana and dewani, etc, in the manner in which she used to pay during the reign of the Maharaja, but in a proceeding of 22nd September 1865 (Ex. L-2) the. Deputy Commissioner of Sambalpur found that it was clearly established that when the State lapsed the village was held immediately by the Raja, and it was accordingly settled in 1850-with Rani Janakpriya Dei who had been in possession ever since.

It would therefore appear that the gountiaship which was granted to the Rani in 1850 was an entirely new creation, and if a permanent right had then bean created it would in the ordinary course be regarded as the stridhan property of Rani Janakpriya Dai But from the evidence on the record (Exs. L-4 and L-5), it does not appear that any permanent right was conferred in 1850 or 1853; and it was not until the settlement of 1865 that proprietary rights were conferred on the Rani (Ex. L-2). By the interpretation clause, Section 4(8)(a), C.P. Land Revenue Act of 1881, the term proprietor includes a gountia of a Government village in Sambalpur ; and it is clear that the effect of the order of the Settlement Officer of 22nd September 1865 (Ex. L 2) conferring proprietary rights on the Rani, was to make her gountiaship henceforth permanent and heritable. At that time there was a dispute before the Settlement Officer, wherein one Harekrishna claimed the gountiaship as heir of his father Jagabandhu ; but the Settlement Officer held that i although Jagabandhu may have been a gountia at one time, his son's claim was barred by long dispossession. His order was in the following form:

I confer the proprietary rights on the Rani Janakpriya Dei. Forest and waste land to be reserved by Government as may be directed at the time of settlement ; the right in mineral products and quarries is also reserved

Section 87, C.P. Land Revenue. Act of 1881 provides that when a Settlement Officer has made an award of proprietary right in any land, at any settlement made before the Act came into force, all claims, which after consideration the Settlement Officer expressly decided to be invalid or inferior to the claim of the person in whose favour the award was made, shall be barred ; and it also provides that the award at any such settlement of proprietary rights in land to a widow shall be deemed to confer on her those rights only which in accordance with the personal law to which she is subject, she would enjoy in land inherited by her from her husband. Mr. P.K. Sen points out that stridhan property acquired before the award would not lose its stridhan character by virtue of the award. He argues reasonably that when the award of the Settlement Officer merely confirms the title of the widow in property which she is holding as stridhan the character of her title would not be changed by the award, merely because there had been a dispute. He does not argue that the provisions of Section 87, Land Revenue Act, apply only where the award confirms the widow's title to an estate which she had inherited from some deceased full owner. I think that it is clear that an award by a Settlement Officer, conferring upon a widow rights which she had not hitherto enjoyed, must be held to be governed by the provisions of Section 87, Land Revenue Act. As I have said it does not appear that Rani Janakpriya Debi had any interest which might be described as a proprietary interest before the date of this award, since by the earlier settlement she was merely a temporary thekadar. The permanent and heritable right, which is that with which we are here concerned, was created by. the award of 1865.

I consider therefore, that by virtue of the provisions of Section 87,G. P. Land Revenue Act, it must be held that this permanent interest, to which in due course her daughter succeeded, was held by Janakpriya Dei as widow of the last Raja of Sambalpur, and that it would descend to his heirs, not as stridhan of Rani Janakpriya Dei. The plaintiff is a reversionary heir as bandhu of the last Raja of Sambalpur and his evidence, which is the only evidence on the record on the point, is that there are no other heirs of the Raja. And, indeed, even if this property were stridhan of Janakpriya Dei which should have descended on Asha Kumari's death to Amulya Kumari, the plaintiff would appear to be the persons now entitled to it. Amulya Kumari is dead, though there is no evidence regarding the date of her death. On her death any property which she might hold as heir of her grandmother's stridhan would not descend to her heirs, it would reverb to the heirs of Janakpriya Dei: Sheo Sanker Lal v. Debi Sahai [1903] 25 All. 468, Lala Sheo Pertab Bahadur Singh v. Allahabad Bank [1903] 25 All. 476. In the absence of any other heirs it would revert to her husband and his heirs, and the plaintiff would thus be the person entitled to the property whether it were stridhan or not.

We come now to issues 10 and 3b dealing with the question of whether the defendant's father was trustee or guardian of the plaintiff and ''whether he had power to deal with Kilasama under the authority of the Political Agent. The learned Subordinate Judge has found that the defendant's father was by virtue of his fiduciary position bound to do all that; lay in his power in furtherance of the interest of the Raja, and consequently he was responsible to the Raja as trustee, but without recording any definite finding on the point he says that he is inclined to the view that the Bengal Court of Wards was the proper authority to take over management of any property of the Ruling Chief which might lie in British India.

As the learned Subordinate Judge has observed it is an undisputed fact that the Local Government took charge of the administration of the Feudatory State of Kalahandi after the death of the plaintiff's father as representing the paramount power in the country. The rules for the administration of the Feudatory States while under the control of Government could not be produced in Court because they were confidential. It was suggested on the one hand that it was only the Superintendent of the State who had power to grant leases, and on the other hand that neither he nor the Political Agent had any power to deal with property in British India. It appears to: be clear that during the minority of the Chief, Kalahandi estate was managed by the Political Agent and that the Superintendent acted in subordination to him. Rai Bahadur Jugal Kishore Tripathy, who succeeded Ramkrishna Misra as Superintendent of the Kalahandi State and worked in that State from 1908 to''1921, was examined as a witness "for the defendant. In cross-examination he said that the Superintendent within the State executed leases with the previous sanction of the Political Agent and in re-examination he said:

To my knowledges there is no rule prohibiting the Political Agent from executing leases himself if he wants to do so. If he doss so there is no bar.

Mr. Hasan Imam on behalf of the plaintiff-respondent cites a passage at. p. 209 of the Gazetteer of the Feudatory States of Orissa which was published in 1910, of which Mr. Cobden, Ramsay was himself the author, wherein he says of Kalahandi:

The Superintendent exercises the powers of the Chief except that sentences passed by him exceeding seven years are required to bat submitted to the Political Agent for confirmation.

suggesting that this implies that it-was the Superintendent, and not the. Political Agent, who generally exercised the power of the Raja. But the sentence which immediately precedes that quoted by Mr. Hasan Imam is:

The State is now under administration of Government and its affairs are managed by the Political Agent.

It is clear that the statement that the Superintendent exercises the powers of the Chief refers exclusively to his, powers as a criminal Magistrate, and, if the account given in the Gazetteer proves anything it proves the contrary of what Mr. Hasan Imam seeks to prove by it. I cannot agree with the view of the learned Subordinate Judge that the Bengal Court of Wards ought to have assumed charge of the property of the Raja in British India, since it is clear from Part 2 of the Court of Wards Act (9 of 1890) that its jurisdiction is limited to persons who are subject to} the jurisdiction of the British civil and revenue Courts. The position of a. Ruling Chief holding property in British India is anomalous and he cannot ordinarily hold landed property without the permission of the Government of India. Indeed we find in the present case that when the Ruling Chief had succeeded by inheritance to Kilasama the Political Agent reported the facts to the Chief Secretary to the Government of Bengal for the information of Government in order that the sanction of the Government of India might be obtained if it should be required (Exs. B-55 and 58). I think it is clear that the charge of the person and property of a disqualified Ruling Chief is a matter for the Political Department, whether the property be contained within the Ruling Chief's, State or outside it in British India, and. the Bengal Court of Wards could ordinarily have no concern with it, certainly not as a matter of course. Ramkrishna Misra in his capacity of Superintendent of the State was in a fiduciary position towards the Political Agent who represented the Raja, and his duty as Superintendent was to do his best in the interest of the State, It may be said at once that if he gained any property for | himself, by representations to the Political Agent concealing the fact that he was gaining it for himself, he would be affected by the provisions of Section 88, Trusts Act.

We come now to the important issues of fact, No. 16, the first part of issue 3, the first part of issue 2 and issue 17. I have said that general allegations of fraud were made in the plaint and that even when the defendant moved the Court to order further and better particulars they were not furnished. The learned Subordinate Judge by his order of 17th March 1926 said that he could assure the pleader for the defendant that he would not admit any evidence which went outside the pleadings. It is hardly necessary to observe that this was not the proper way to deal with pleadings which were defective by reason of being too vague in their terms with general allegations of fraud, since the plaintiff might have produced evidence of any kind of fraud without travelling outside his pleadings as they stood. Mr. Hasan Imam says that-he limits the fraud alleged to the two definite grounds which are stated in the plaint, namely that the lease was obtained benami and that it was obtained at a grossly inadequate rent; but in order to substantiate his case he cannot avoid taking the ground that the benami lease at an inadequate rent was obtained by fraudulent misrepresentation; and particulars of this fraud ought certainly to have been specified in the plaint. It is difficult to exclude the evidence which is ''relied upon as showing that there was fraudulent misrepresentation and it appears that the learned Subordinate Judge who had charge of this case in its earlier stage, before it actually came on for hearing did not realize the proper scope of Rule 4, Order 6 in Schedule 1, Civil P.C. (His Lordship then discussed evidence and concluded that the original lease was not a benami transaction and that neither the original lease nor the subsequent lease to the Rai Bahadur was granted at an inadequate rent. That is to say, no fraud was committed by the Rai Bahadur in connexion with the grant of the original lease or in connexion with the subsequent transfer to himself. (His Lord-ship here discussed the question of limitation and concluded that if the lease was actually obtained by fraud, the suit cannot be held to be barred by limitation, because the defendant has certainly not succeeded in proving that the Ruling Chief knew of the details of the transaction at any time more than three years before the institution of the. suit.) If there was no fraud, the lease was good, and the plaintiff's suit must fail on that ground; so that on that view of the facts the question of limitation does not arise.

We come now to issue 4 (has the plaintiff ratified the lease on attaining his majority, and is he estopped from questioning the same?). The Ruling Chief says that he did not have clear knowledge of the fraud which he alleged in the plaint until the 20th June 1925; but on 4th June 1924 he presented a petition (Es. A-14) in the Court of the Settlement Officer of Sambalpur, wherein he stated that the lease to Ramkrishna Misra was unauthorized and fraudulent. On 5th June 1924 the Political Agent informed the Ruling Chief that the shikmi gountia had deposited the first instalment of the rent of Kilasama for 1924-25 (Ex. B-22). The payment of the second instalment was made on 19th February 1925 and it appears that neither of these payments of rent were repudiated by the Ruling Chief. It is argued or behalf of the appellant that this acceptance of rent amounted to ratification of the lease of the 2nd September 1908, and that the Ruling Chief after receiving this rent is estopped from denying that the lease is valid.

But it is certainly difficult to hold that by merely failing to return the money the Ruling Chief signified any intention to ratify the lease of 1908, or that there was any new contract by which that lease was ratified, in view of the fact that the Chief was fighting the defendant in the settlement Courts, and that on 5th May 1925 he informed the Settlement Officer (Ex. 14-A) that he intended to institute a suit. If the receipt of rent created a new tenancy, is could have been at best only a tenancy from year to year. The defendant cannot claim that; the act of accepting rent amounted to ratification of the original lease.

After dealing with the question of limitation, the learned Subordinate Judge discusses the question of whether the Political Agent had authority to execute any lease. Mr. Hasan Imam on behalf of the plaintiff-respondent no -longer presses the point that the Political Agent had no authority. Indeed, since it appears that it was the Political Agent who was actually the guardian of the property of the minor Chief and that the Superintendent of the State had no ex-officio authority to deal with the person or property of the minor as distinguished from the property of the Kalahandi State, it would, appear to be clear that it was the Political Agent and not anybody else who was the proper person to execute the lease of Kilasama village.

We come now to issues 1 and 2 and the last part of issue 3 on the question of whether the civil Court has jurisdiction to question the Local Government's grant of protected status to Rai Bahadur Ramkrishna Misra. There is no doubt ''that if the lease is not liable to be avoided on the ground of fraud, Section 152(a), C.P. Land Revenue Act, 1881 would debar a civil Court from questioning the validity of the Local Government's grant or protected status to Ramkrishna Misra; but if the lease on which the protected status was grafted was obtained by fraud and was avoidable on that ground, and if the original lease were declared at the instance of the plaintiff to be void, the defendant could gain nothing by the fact that the projected status had been grafted on to his fraudulent lease. But if the lease was not fraudulent, as I have found that it was not, then the civil Court has no jurisdiction to enter into the question of whether the Local Government was justified in granting protested status to the thekadar.

We come now to the last issue dealt -with by the learned Subordinate Judge, dealing with the question of whether the plaintiff was entitled to mesne profits and the defendant to credit for improvements which had been effected in the village. Now, if it had been found that the original lease was obtained by fraud of the Rai Bahadur exercised by the misuse of his fiduciary position towards the Political Agent, the Rai Bahadur u/s 88, Trusts Act, would have become a, constructive trustee in respect of the property which he acquired, and of the profits which ha derived from it. It is not alleged that in his capacity of manager of Kilasama, before the lease was granted he committed any act of embezzlement, or derived any undue benefit; and it was not he who executed the lease but his superior officer, the Political Agent. But it was undoubtedly his duty to make full disclosure of facts when he was making representations to the Political Agent, and if by misrepresenting or concealing facts he had induced the Political Agent to grant a lease in the name of another person, which was really a lease to himself and at a rents which was inadequate, he would have taken an advantage of his fiduciary position towards the Political Agent as representing the Raja which would have rendered Section 88, Trusts Act, applicable. If those facts had been found, it would have been proper to hold that the lease obtained benami was impressed with this trust, and that it remained impressed with the trust after its ostensible character was changed in 1908.

The learned Subordinate Judge, finding that the original lease was obtained by fraud, so that Rai Bahadnr Ramkrishna Misra was by the application of Section 88, Trusts Act, practically in the position of a fraudulent trustee, held that the defendant was entitled to no credit for improvements made by the Rai Bahadur, though he allowed credit for improvements made by the defendant himself. He directed that an account should be taken of the rents and profits realized by the defendant since his father's death. The plaintiff-respondent's cross-objection takes exception to this order of the learned Subordinate Judge, claiming that accounts ought to have been taken from the time when Achutanand Panda entered into possession of the village.

Mr. P.K. Sen on behalf of the appellant contends that even on the findings of fact of the learned Subordinate Judge, Rai Bahadur Ramkrishna Misra ought not to have been regarded as in the position of an ordinary fraudulent trustee in respect of the improvements which he effected, because these improvements were effected with the previous knowledge and at the express instance of the Political Agent who represented the plaintiff, and who invited Rai Bahadur Ramkmhna Misra who was then openly in possession of the village to spend money on them. Since it has been found that the original lease was not obtained by fraud and that Rai Bahadur Ramkrishna Misra was not in the position of a constructive trustee, any observation on this part of the appeal and the cross-objection will amount to no more than obiter dictum; but I consider that on the findings of fact of the learned Subordinate Judge he might well have directed that an account should be taken of the rents and profits from the time when the constructive trustee actually obtained possession, that is to say, from 25th June 1906, with allowance for improvements effected from the beginning, the defendant's liability being limited to such of the rents and profits as descended to him on his father's death. The improvements made by the Rai Bahadur were affected at the express instance of the plaintiff's official guardian, and the defendant should be certainly entitled to credit for them, with interest on the money expended. Such a variation of the order of the learned Subordinate Judge would probably not have been of great benefit to the plaintiffs, if the finding of fact of the learned Subordinate Judge had been affirmed; but as I have said, since it has been found that the original lease was not voidable, this question does not actually arise.

Mention should be made of an argument adduced by Mr. P.K. Sen to the effect that, since the lease was granted by the Political Agent who represented the paramount power, the act ought to be regarded as an act of State, which cannot be challenged in Municipal Courts. It is sufficient to say that although the appointment of the Political Agent to manage the Kalahandi State during the minority of the Ruling Chief was an act of State which could not be questioned in the Courts, the Political Agent, or his subordinate officer the Superintendent, would nevertheless be personally liable for any act of embezzlement or any actionable breach of trust which might be committed in the course of management, and if such a breach of trust had been committed in respect of property situated in Sambalpur district, the District Court at Sambalpur would have jurisdiction to entertain a suit instituted by the Chief fort redress.

The result is that I would allow this appeal, dismissing the plaintiff's suit with costs throughout.

Courtney-Terrell, C.J.

I agree.