Kadir Mastan Rowther vs Sengammal

Spencer, J.—This is a suit brought by the assignee of a permanent lease granted by the trustee of a trust called Lala Dharmam to recover

possession of the suit site from the tenant in occupation. The suit was dismissed in the District Munsif''s Court, on the ground that the trustee had

no power to alienate the trust property and that his alienation was void and conveyed no title to the plaintiff; and on appeal the District Judge has

confirmed this decision and dismissed the appeal.

It is contended before us that the grant of a permanent lease represented not a void but a voidable transaction and that it has not yet been

avoided. In Venkataramana Ayyangar v. Kasturiranga Ayyangar ILR (1917) Mad. 212 my learned brother stated:

It is now settled law that ordinarily a permanent alienation of trust properties is ultra vires of the powers of a trustee.

and the respondent''s pleader asks us to treat this expression ''ultra vires'' as meaning void; but it does not necessarily have that signification. There

is also an expression by Abdur Rahim, Officiating Chief Justice, in the Full Bench Opinion in the same case that the alienation of the right of making

collections for the temple ""was void and did not bind the temple in any way"". When the learned Judge used the word ''void'' in this context he was

not using it as opposed to voidable, as no argument was before him on the point of voidability.

In Palaniappa Chetty v. Sreemath Devasikamony Pandara Sannadhi (1917) ILR 40 Mad. 709 (P.C.) the Judicial Committee of the Privy

Council observed ""the grant of a lease in perpetuity of debottar lands at a fixed rent required to be justified by unavoidable necessity"". Such an

expression would not have been used if the lease was itself a void transaction. Their Lordships compared the position of a shebait or trustee with

that of a guardian of an infant as regards the management and control of Immovable property. It is well settled that if a guardian exceeds his

powers in, dealing with the property of an infant his acts are voidable and not void. In Abhiram Goswami v. Shyama Charan Nandi (1909) ILR 36

Calc. 1003 (P.C.), the Privy Council were dealing with a Mokurari pattah which corresponds to a lease in perpetuity, and they held that such a

lease of debottar property given by a Mahant was good for the life-time of the Mahant who granted it. It would have been impossible for them to

come to this conclusion if the grant had been void ab initio. In Kadir Ibrahi Rowthen v. Arunachellam Chettiar ILR (1910) Mad. 397, it was held

that a lease by a trustee for a period exceeding 21 years was not void but only voidable at the instance of the cestui que trust. This was no doubt a

decision based upon Section 36 of the Indian Trusts Act (II of 1882) which applies only to private trusts. But in this respect the principle appears

to be the same, namely, that a lease of trust property which is in excess of the trustee''s powers is not void but only voidable. I am therefore of

opinion that the lower Courts were wrong in deciding the case upon this point and the appeal must be allowed and the suit remanded to the Court

of first instance for trial upon the other issues in the case. Costs will abide and follow the result.

Seshagiri Ayyar, J.

I agree. The position of the defendant must be regarded as that of a trespasser. His title has not been gone into, and therefore it must be taken

that he resisted the suit on the ground that the plaintiff must show a better title than he himself possessed.

The position taken by the lower Courts, and which was pressed upon us by the learned vakil for the respondent, amounts to saying that the

alienation by a trustee is void ab initio, like an alienation which is opposed to public policy or one made illegally. This position to my mind is

untenable. As my learned brother has pointed out, the Judicial Committee have held. that a trustee has in certain circumstances power to dispose

of the trust property; he can sell it and he can lease the property provided a necessity for doing so has been made out. If that is the true position of

a trustee, in granting a permanent lease, if no necessity is proved, he will only be exceeding the powers he possesses. Consequently, the

transaction, although it may be avoided by persons who could sue on behalf of the trust, would still give the alienee a right until it is avoided. This is

the principle which the Judicial Committee must be taken to have enunciated in Abhiram Goswami v. Shyama Charan Nandi (1909) ILR 36 Cal.

1003 (P.C.), where they say that the alienation was good during the life-time of the grantor. MR. Justice Benman, in Mahamadgans v. Rajabaksha

ILR (1913) Bom. 224, interprets the decision of the Privy Council in Abhiram Goswami v. Shyama Charan Nandi ILR (1909) Cal. 1003 as

holding that an alienation by a trustee is not void altogether but only voidable, The Privy Council have further held that the power of a trustee of a

temple is analogous to that of a manager of a Hindu joint family or the guardian of an infant. As regards the manager of a Hindu family, it has never

been held that an alienation by him is void ab initio; it is only voidable. Similarly in the case of an alienation by a guardian of an infant, Section 30 of

the Guardians and Wards Act (Act VIII of 1890) declares in express terms that it is only voidable. It is also pointed out in Kadir Ibrahi Rowthen

v. Arunachallam Chettiar ILR (1910) Mad., 397 that the transaction of a private trustee granting a lease beyond 21 years, which the law permits

him to grant, is only voidable. Applying the analogy of these legislative provisions I agree with my learned brother that an alienation by a trustee

cannot be held to be void

The result is that it the defendant can show a better title than the plaintiff he will be allowed to retain the property; if, on the other band, he has

no title, he is not entitled to resist the suit brought by the plaintiff until the trustee, or somebody interested in the trust, takes steps to avoid the

transaction. He has clearly a title which be can enforce as against a trespasser.