CASE COMMENT - HARRY GREY v.
BHAGUMIAN AIR 1930 PC 82
BENCH-
SIR George Lowndes
Appellant- Harry Kempson Grey
Respondent- Bhagumian
PRIVY COUNCIL- Decided on December 06, 1929.
FACTS-
The appellants, who were the owners of an indigo factory, had for a number of years leased
certain lands from the predecessors in title of the principal respondents, and had utilised the
lands in growing indigo for the purposes of their factory. The lease having expired in or about
November, 1919, the respondents became entitled to possession of the major portion of the
lands.
The appellants subsequently obtained a new lease of a small portion, which did not belong to
the respondents, and refused to give up possession of the respondents’ portion, alleging
themselves to be occupancy tenants, The respondents sued to establish their title and were
successful, a decree being passed in their favour for joint possession with the appellants and
for mesne profits of an area of some 23 bighas. After proceedings in appeal to the High Court
the matter came again before the Subordinate Judge for the ascertainment of the mesne
profits awarded by the High Court’s decree.
A local enquiry was held by a Commissioner, and the Subordinate Judge eventually found a
sum of Rs. 19,869-11-11 to be due to the respondents, for which he passed a final decree in
the respondents’ favour on August 15, 1922. The appellants again appealed to the High
Court, alleging this amount to be excessive, but their appeal was dismissed, and they have
now by special leave appealed to His Majesty in Council.
ISSUES
-The only question raised for determination in this appeal is as to the basis upon which mesne
profits should be ascertained in respect of the wrongful possession of agricultural land.
-The question in the appeal is whether this was the correct basis of calculation. Their
Lordships have no doubt that it was, though they are not altogether in agreement with the
reasoning by which the learned Judges in India have reached this conclusion.
Mesne Profit-
-Nothing more than a fee that a person in unlawful possession of another’s property must pay
to the owner of the property for such wrongful occupation.
-As per Section 2(12) of CPC, mesne profits of property mean those profits which the person
in wrongful possession of such property actually received or might with ordinary diligence
have received therefrom, together with interest on such profits, but shall not include profits
due to improvements made by the person in wrongful possession.
-It is a compensation paid to the real owner.
-The calculation by the Courts in India was made upon the basis of the crops which the land
was capable of producing.
It was, in fact, planted with indigo, but the Courts found, and it is not disputed before this
Board, that it was capable of producing more profitable crops, such as sugar cane, wheat,
tobacco, etc.; crops which were in fact grown by the appellants on other neighbouring lands.
ARGUMENTS-
The appellants’ first contention was that the rental value of the land, which they put at Rs. 5
per bigha, was the proper criterion. This would no doubt ordinarily be so who the person
charged had merely let the land out to others.
In such a case the rent that he received, if there was no evidence that a higher rent could, “
with ordinary diligence “ have been obtained, would be the measure of the profits for which
he would be liable.
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But when (as in the present case) the wrong-doers cultivated the land themselves, the
definition above cited clearly makes the cultivation profits the primary consideration.
The appellants contended that the actual cultivation having been in indigo, the indigo profits
only should have been allowed. But it is, in their Lordships’ opinion, clear that in this case
the growing of indigo was for the special purposes of the appellants, who were the owners of
the adjacent factory.
Apart from this there seems to be no reasonable doubt that the ordinary farmer would have
grown the other more profitable crops, for which the land was admittedly adapted, and upon
which the calculation of the Courts in India was founded. Their Lordships think that in all
such cases the true test must be what the ordinary prudent agriculturist would have grown.
JUDGEMENT-
Ratio Decidendi
The learned Judge of the High Court came to the conclusion, but by a different process.
They say in their judgment that the rental test is inappropriate because the plaintiffs (the
respondents in this appeal) are themselves cultivators, and if they had been let into possession
would undoubtedly have cultivated the land and would not have let it out on rent.
Again, as to the crops, they say that the true test is what the plaintiffs would have grown if
they had had possession. Their Lordships are unable to accept this line of reasoning, though it
has been, pointed out to them that it has the sanction of previous decisions in India, which
have been cited in the argument. The test set by the statutory definition of mesne profits is
clearly not what the plaintiff has lost by his exclusion, but what the defendant has or might
reasonably have made by his wrongful possession.
What the plaintiff in such a case might or would have made can only be relevant as evidence
of what the defendant might with reasonable diligence have received. Their Lordships are in
effect only repeating what was said by Lord Dunedin in delivering the judgment of their
Board in a recent case, in which the same argument was used.
[Gurudas Kundu Chowdhury v. Hemendra Kumar Roy (1929) L.R. 56 I.A. 290 : S.C. 32
Bom. L.R. 148.]
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-For the reasons above stated their Lordships will humbly advise His Majesty that this appeal
should be dismissed.
-The appellants must pay the costs.
NAME- HARSH SINGH
ENROLLMENT NUMBER- 07716503822
FACULTY- PROF. RAVINDER KUMAR