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Judgment
Maheswaran, J.—The defendant is the appellant. The suit out of which this Second Appeal is preferred was filed by the Adheenakarthar of
the Madurai Adheenam for a declaration that the perpetual lease dated 29th January, 1916 does not bind the plaintiff-Mutt and for possession of
suit items 1 and 2 and for profits, past and future. The plaintiff Mutt is a religious trust. The then Pandarasannadhigal Sri-la-Sri
Thirugnanasambanda Swamigal granted a perpetual lease on 29th January, 1916 in respect of item No. 1 to one Sadasivam Pillai after receiving a
premium of Rs. 650. The lease amount payable is Rs. 12 per annum. The perpetual lease by the then Pandarasannadhigal, according to the
plaintiff, will be valid only during the tenure of office of the said Pandarasannadhigal who granted the lease and cannot ensure beyond his lifetime.
Item No. 2 which is survey No. 266/2 is an annexure and addition to plaint item No. 1. The heirs of Sadasivam Pillai transferred the perpetual
lease on 6th September, 1937 to Periakaruppa Nadar, father of the defendant. The said Periakaruppa Nadar raised a coconut tope in survey No.
266/2, which is a poramboke land, after obtaining licence from the revenue authorities. The defendant wrote a letter to the plaintiff informing him
that survey No. 266/1 (2 acres 86 cents) has fallen to his share in a partition. Thereupon, the Madadhipathi who succeeded the grantor of the lease
(hereinafter referred to as plaintiff) issued a notice asking the defendant to surrender possession and at the defendant repudiated the claim of the
plaintiff, the plaintiff had to file the suit. The suit was resisted by the defendant who in his answer contended that item 1 is a waste land and heavy
sums had to be invested for reclamation and therefore, a perpetual lease was granted by the Pandarasannadhigal and that the transaction was a
very prudent transaction and vas in the interest of the mutt. His further contention is that Sadasivam Pillai invested a heavy amount in, reclaiming the
entire area and the defendant''s father obtained the rights from the legal representatives of Sadasivam Pillai and he has improved upon the property.
He also contended that his right over item No 2 is that of a licensee and the Mutt cannot claim it and that the suit is bad for non-joinder of the
Government as party in so far as item No. 2 is concerned. It is also stated that the plaintiff himself has received the rents and the acceptance of the
rent amounts to an election to affirm the permanent lease made by his predecessor and he is estopped from questioning the transaction. It is further
contended that the suit is barred by the law of limitation and that in any event the plaintiff is bound to pay the value of improvements
The Subordinate Judge who is also a trainee District Judge, dismissed the suit of the plaintiff holding that the act of the previous Madadhipathi in
granting a permanent lease was a prudent act. The appellate Judge held that the lease is not valid beyond the lifetime of the grantor and allowed the
appeal in part decreeing the suit for recovery of item No. 1, but dismissed the suit in respect of item No. 2 holding that the appellant is not entitled
to item No. 2. The defendant has preferred this second appeal against the decree to the extent to which the claim of the plaintiff was allowed. The
plaintiff has filed the memorandum of Cross-objections.
A learned Judge of this Court while admitting the Second Appeal formulated the following substantial questions of law --
Whether an alienation of a Mutt property by a Madadhipathi out of prudence for the benefit of the Mutt could be challenged by the successor
when the latter had accepted rents from the alienee or person claiming under him, both as an agent of the previous Madathipathi and as his
successor?
When a transaction more than 50 years old is sought to be challenged, long after those who could speak about it had passed away, will not the
presumption of law laid down in 64 L.W.525 be available to the transaction?
Whether the profits arising out of improvements effected by a permanent lessee will be ""mesne profits"" within the meaning of S. 2(12) of the
Code of Civil Procedure?
The plaintiff-Mutt is a religious endowment which propagates the doctrine of Saiva Siddhantha. The then Pandarasannadhigal, Sri-la-Sri
Thirugnanasambanda Swamigal, granted a lease in perpetuity in favour of one Sadasivam Pillai on 29th January, 1916 evidenced by Exhibit A2 in
respect of plaint item No. 1. The said Sadasivam Pillai paid a premium of Rs. 650 and agreed to pay a rent of Rs. 12 per annum. The grantor
attained samadhi on 7th January, 1957 and the plaintiff became the head of the Mutt. The second item of the plaint property is a river poramboke
covered by Survey No. 266/2. It forms an adjunct or an addition to the first item. That is also claimed by the plaintiff. The claim of the plaintiff is
based on the fact that the lease in perpetuity is valid only during the lifetime of the Pandarasannadhigal who granted it and it does not ensure
beyond his lifetime. The defendant resisted the suit mainly on the ground that the lease granted was a prudent act on the part of the grantor and that
therefore, the lease is valid and binding on the plaintiff. Ex. A2 appears to be a counter lease deed. The lease deed executed on behalf of the Mutt
is not before the Court. Sadasivam Pillai, the lessee, is not before the Court. Sadasivam Pillai, the lessee, states in the deed. Ex.A2, that the land is
a barren land which is not brought under cultivation, that he is prepared to pay a sura of Rs. 12 per annum and that he will raise trees (as he likes)
on the land. A further reading of Ex. A2 shows that a sum of Rs. 650 has been received by the Pandarasannadhigal on 27th January, 1916 as
premium. The written statements state that the lease granted by the late Madathipathi to Sadasivam Pillai was a very prudent transaction and was in
the interest of the Mutt and it cannot be questioned at this distance of time. It is not disputed that item No. 1 of the suit properties was leased out
to Sadasivam Pillai and there is no dispute either that the property belongs to the Mutt.
A Madathipathi or the Head of a Mutt has not got an unqualified power of alienation in respect of Mutt properties. The earliest of the decisions
is in Maharanee Shibessouree Debia v. Mothoora Nath Acharia (1869-70) 13 M.I.A.270(P.C.). Their Lordships of the Judicial Committee held
that a permanent lease of land belonging to a religious endowment created by a shebait with a fixed rent for all times though adequate at the time
when the lease was created was not one which could be created by him, but such a lease might be assumed to be one binding on the deity if it was
otherwise conformable to any established usage In Prosunno Kumari Debya v. Golab Chand Baboo (1875) L.R 2 IA 145, the Privy Council took
the view that the authority of the shebait of an idol''s estates with regard to alienation of the said estate was analogous to that of a guardian of an
insane heir, Lord Justice Knight Bruce in Hanuman Pershad Panday v Babooee Munraj Koon Werjee (1854)6 M.I.A. 393, observed. :--
The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law, a limited and qualified power. It can only be
exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would
make in order to benefit the estate, the bona fide tender is not affected by the precedent mismanagement of the estate. The actual pressure on the
estate, the danger to be averted or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded
In Palaniappa Chetty v. Sreemath Deivasikamony Pandarasannadhi 6 L.W. 222=A.I.R. 1917 P.C.33 their Lordships of the Judicial Committee
had to consider the power of a shebait to grant a permanent lease of endowed properly. That was a case where certain properties had been
endowed to sri Subramaniaswamy Devasthanam in the village of Kunnakudi in the district of Madurai for the purpose of religious service to the
temple. That property included a building site situate in one of the streets of the village upon which site stood some ruins. No rent was received out
of that site and the ruins upon the site became a nuisance, and it was found that it would have cost more than Rs. 200 to have had the site walled
around In that state of things, one Palaniappa Chetty applied for grant of a perpetual cowle for the site at the rent of Rs. 1-80 per annum for the
purpose of erecting thereon buildings for an Annadhanam Mutt. There were other offers for acquisition of the site. They were considered by the
existing shebait and he granted a perpetual cowle to the appellants in that case, namely, Palaniappa Chetty and another, for the purpose of erecting
buildings thereon for the said Annadhanam Matam Charity. The Charity contemplated was the erection of a rest house for pilgrims passing through
the village, irrespective of the fact from where they came and to which place they were proceeding and irrespective of the fact whether or not they
worship in the temple and was therefore a charity not in any sense subsidiary to or connected with the temple or religious services performed
therein, but separate and independent charity of a wholly different kind and character to the support or maintenance of which none of the dedicated
property or its produce could as an act of charity be legitimately applied. In their Lordship''s opinion the evidence adduced in that case did not
establish that the shebait was constrained by any necessity to make such a lease or any benefit accrued to the estate from it. In such circumstances
it was held that the grant at a fixed rent and on payment of a premium, of a permanent lease by the shebait of a portion of the lands dedicated to
the worship of the idol of which he was a trustee, was invalid as against his successor in the shebaitship. In dealing with the question as to what
amounts to benefits to the estate their Lordships say that it is impossible to give a precise definition of it applicable to all cases and that they do not
attempt to do so, but the preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or
portions from injury or deterioration by inundation and such like things would obviously be benefits. In AIR 1936 183 (Privy Council) a permanent
lease or an absolute alienation of debutter property was held to be beyond the ordinary powers of management, whether it be in the case of the
head of a mutt, she-bait, of a family idol, or the dharmakartha of a temple and such alienation could be justified only by proof of necessity for the
preservation of the endowment or institution. In Vidya Varuthi v. Balusami Ayyar 44 Mad 831 : (1921) 48 I.A. 302 : 41 M.L.J. 346 : AIR 1922
P.C. 123: 15 L.W. 78, it was held that except for unavoidable necessity, the head of a mutt cannot create any interest in the mutt property to enure
beyond his life. In Rajaram Dass Bavaji v Bharatha Dass Bavaji (1917) 38 IC 221, a Division Bench of this Court held that the head of the mutt
can nominate his chela during his lifetime to succeed him on his death, but he cannot alienate the whole of the corpus of the mutt property or any
portion of it, except for proper and necessary purposes. Muthusamier v. Sree Sree-methanithi Swamiyar (1915) 38 Mad 356 was a case where
the head of the mutt leased the village in 1872 permanently in favour of one Mudgala Chariar who sub-leased or assigned his interest in favour of
certain persons. The lessor died in 1890 and was succeeded by Sri Sudhi Nidhi Swamiyar, a person who had been managing the affairs of the
mutt on behalf of his predecessor during the later years of his life. In 1889 before his predecessor''s depth. He, on behalf of the madathirathi,
leased the inam to the 6th defendant that case cancelling the lease of 1872. The sixth defendant was, however not able to obtain possession and
from 1892 onwards the Swamiyar was collecting rent reserved by the old lease of 1872 and in 1903, the litigation about the sixth defendant''s
lease having come to an end. He treated the occupants under the old lessee as tenants and recovered rent from them according to the shares held
by them in inam. In 1906 Sri Sudhi Nidhi Swamiyar died and was succeeded by the plaintiff in that case. He sued to set aside the lease and
recover possession of the inam. The Subordinate Judge directed the defendant to deliver possession of the suit land. The fourth defendant who
was in possession of the three-fourths of the plaintiff''s share in the said village which was sold for arrears of Road Cess due under the Local
Boards Act appealed. It was contended that the suit was barred by limitation, because time has to run from the date of alienation in 1872, the lease
being void, or at the latest from the death of Sugnana Nandhi Swamiyar in 1890. It was conceded in that case for the appellants that the lease was
in excess of the powers of the madathipathi. It was held in that case that the suit is not barred by limitation except as regards the lands sold in
revenue sale, that the alienation by the head of the mutt is not necessarily void and has no effect, but is good for the lifetime of the alienor. In
Narasimhachari v. Gopala Iyyangai (1905) 28 Mad 391, a Division Bench of this Court held that a trustee of a religious endowment cannot except
on special grounds create a perpetual tenure binding on his successors in office.
It is clear therefore, from the above rulings that unless it is shown that a permanent lease was entered into for legal necessity or for the benefit of
the estate of the mutt; the said lease cannot be binding on the succeeding madathipathi. The burden of establishing the circumstances justifying an
alienation of the mutt property is on the alienee. It is stated in the written statement that item No. 1 was a dry land, almost a waste, overgrown with
shrubs and prickly pears and that the position was that the land was only a source of liability for tax with no prospect of any appreciable income,
that at that time the Mutt could not command necessary finance to reclaim the area and in the circumstances disposal of the land cannot be said to
be void and beyond the powers of the head of the mutt and that the cowle given the late Madadhipathi to Sadasivam Pillai was a very prudent
transaction and was in the interest of the mutt. The written statement states that the permanent lease came into existence as the land in question was
a dry land and is not cultivable and it abuts river Vaigai and the Mutt could not spend for reclaiming the property and in the circumstances disposal
of the land cannot be said to be void or beyond the powers of the Mutt. It is also seen from the statement that the lease in perpetuity created in that
period could not be considered to be an imprudent transaction or one not in the interest of the Mutt. Ex.A2 which is in the form of a letter is said to
be a counter-lease deed executed by Sadasivam Pillai in favour of the late Madadhipathi Sri-la-sri Thirugnanasambanda Pandarasannadhigal On
the 29th January, 1916, Sadasivam Pillai applied to the then Madadhipathi for grant of a perpetual lease of the property described in Ex. A2 on a
rent of Rs. 12 per annum for the purpose of raising trees of his own choice. The perpetual lease was granted to Sadasivam Pillai in consideration of
a premium of Rs. 650 which has already been paid to the Madadhipathi on 27th January, 1916. A perusal or Ex.A2 shows that no circumstance is
mentioned justifying an alienation of the Mutt property. There appears to be no legal necessity. The written statement is to the effect that disposal
of the land cannot be said to be void or beyond the powers of the head of the Mutt. But the several rulings pointed out above clearly show that a
mahant, madadhipathi or the head of a Mutt has no such absolute and unrestricted power to alienate the immovable property and such alienation
could be justified only on legal necessity or for the benefit of the estate of the Mutt. It is pointed out by the learned counsel appearing for the
appellant that the appellate judge has found that the Mutt was not in affluent circumstances on the date of Ex. A2 and that it has been borrowing
small sums for expenses and has been raising loans on promissory notes, as could be gathered from the entries in the ledgers, Exs. A9 to A12. But
then the mere fact that the Mutt was not in affluent circumstances would not necessarily justify the madadhipathi to alienate part of the Mutt
property when it is not shown that such alienation was for the benefit of the estate of the Mutt. There is nothing in the evidence to establish that the
Madadhipathi was constrained by any necessity to grant this perpetual lease or that any benefit accrued to the estate by this permanent cowle.
There is no evidence whether any attempt was made to reclaim the property. From Ex.A2 it is seen that it was Sadasivam Pillai who took the
initiative in the matter and applied to, the Madadhipathi for grant of a perpetual cowle for the purpose of planting trees of his choice. The only
ground stated in Ex. A2 is that the property granted in perpetual lease was not brought under cultivation for a long time and it is not fit for
cultivation and is overgrown with cactus. Beyond this, no reasons are furnished in Ex.A2 for the grant of the perpetual lease. There is no evidence
let in by the appellant to show that there was any pressure on the estate of the Mutt which necessitated the execution of the lease deed, Ex. A2 , in
favour of Sadasivam Pillai. It is also not shown whether there was any need for giving away the land on a fixed rent when the lessor has the power
to vary the rate of rent on a future date depending on the prevailing circumstances. It is seen from the evidence placed before Court that a coconut
grove has came into existence on the suit property and it has given a good yield of coconuts. It is stated that some reclamation was done by the
alienee, but it is clear that the land in question is a valuable land and the situation of it on the banks of a river far from endangering the property
from being flooded, will actually help the yield of coconuts which require abundant and copious supply of water. From the foregoing, it is clear that
the permanent lease evidenced by Ex. A-2 was not entered into for any legal necessity or for the benefit of the estate of the Mutt.
It is next contended that the plaintiff had accepted rent from the alienee or from the persons claiming under him both as an agent of the
Madadhipathi who died and as his successor and therefore the alienation could not be challenged. Generally, a permanent lease granted by the
head of a mutt is valid only during his lifetime. In Vidya Varuthi v. Balusami Ayyar (1921) 44 Mad 831 : 41 M.L.J. 346:15 L.W. 78, the Privy
Council pointed out that ""according to the well-settled law of India (apart from the question of necessity), a mahant is incompetent to create any
interest in respect of the mutt property to enure beyond his life. In Muthusamier v. Sreemethanithi Swamiyar (1915)38 Mad 356 : 25 M.L.J. 393,
a Division Bench of this Court was of the opinion that an alienation by the bead of a Mutt is not necessarily void and of no effect, but is good for
the lifetime of the alienor. In Narasimhachari v. Gopala Ayyangar (1905) 28 Mad 391, a Division Bench of this Court took the view that a trustee
of a religious endowment cannot, except on special grounds, create a perpetual lease, unless it is for legal necessity or for the benefit of the estate
of the Mutt, and will not bind the successor in office It has been found that the perpetual lease created by the late Madadhipathi was not for legal
necessity or for purposes binding the estate. Therefore, such an alienation will not bind the plaintiff, the succeeding Madadhipathi. But the counsel
for the respondent pointed out that the plaintiff has received rents. On this aspect, we have the evidence of the defendant who says that he has paid
rents under Exs. B2 to B5 through his agent to the Mutt. Of these, Exs B2 to B4 were given by the late Madadhipathi. Ex.B5 is a receipt of the
date 10th August, 1957 It is signed by one Sri Gnanasambanda Desikar. In the written statement, the defendant pointed out that the plaintiff has
received rents from Fasli 1363 to Fasli 1366. There is no proof for that. The only receipt, Ex. B5, is of the date 10th August, 1957. P.W. 1 was
not confronted with this receipt. There is no admission by P.W. 1 that Ex. B5 was granted by the plaintiff. All that he says is that Exs. B2 to B5
were given by the plaintiff. It is not clear whether money was paid through the agent of the defendant or whether the receipt was sent through his
agent. There is no clinching proof that this receipt, Ex. B5, is given by the plaintiff. Assuming that it is given by the plaintiff, it is not clear as to how
a solitary receipt granted to the defendant would estop the plaintiff from challenging the alienation of a perpetual lease made by his predecessor,
more particularly when the defendant himself has pleaded in his written statement that money orders sent by him towards rent were ""improperly
refused"" by the plaintiff. The plaintiff has not accepted the rents sent by the defendant and therefore he had no intention that the lease should enure
beyond the lifetime of his predecessor or to create a near tenancy. On 25th July, 1955 under Ex.A5, the defendant writing to the plaintiff-mutt says
that the suit properties have fallen to his share obviously in a partition, and that he will be paying the rent of Rs. 12 per annum But on 5th
September, 1957, the Mutt issues a notice through its Advocate requiring the defendant to surrender possession of the property on the ground that
the previous Madadhipathi had no right to grant a permanent lease. It is clearly stated in that notice that the lease which is for nominal sum is
without any benefit or necessity and therefore void. The defendant replies through his Advocate under Ex.A7, dated 17th October, 1957.
Therefore, it is wrong to say that the plaintiff accepted the rents from Fasli 1363 to Fasli 1366 and even assuming that Ex.B5 is a receipt granted
by the plaintiff, solitary receipt for payment of Rs. 12 will not estop the plaintiff from challenging the alienation made by the predecessor which does
not enure beyond his lifetime as it is found to be not for any legal necessity or for the benefit of the estate.
It is next contended by the learned counsel appearing for the appellant that Ex.A2 remained unquestioned for more than half a century and that
by itself is sufficient to support the conclusion that the grant was made for legal necessity and is binding on the mutt. In support of his contention,
learned counsel for the appellant invited my attention to Sree Sree Iswar Gopal Jieu Thakur Vs. Pratapmal Bagaria and Others, . That was also a
case where the validity of a permanent lease granted by a shebait was called into question. The Supreme Court found as a fact that the ""transaction
was in the best interest of the deity and was clearly beneficial to it."" It was also observed that ""it is difficult to believe that a devout person like her
(a shebait) who was not only a shebait bat also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the
worship of the deity should have entered into the transaction in question unless she considered it absolutely necessary to do so."" It was also found
that there were several shebaits between the death of Muni Bibi who was the widow of the founder of the deity and who created the permanent
lease and the commencement of the litigation in that suit and that the lease was never impugned as beyond the powers of the shebait. But, on the
other hand, the permanent character of the lease was recognised in the deeds subsequently. It was also found that the tenancies were created by
two pious ladies who were keenly interested in the upkeep of the worship of the deity and it was suggested that they are expected to derive no
personal advantage from the transactions in question. It is in those circumstances that the Supreme Court held that if a permanent lease granted by
a shebait is called in question, although it is not possible to ascertain fully what the circumstances were in which it was made, the Courts should
assume that the grant was made for necessity so as to be valid beyond the life of the grantor. Here, in this case it has been found that the perpetual
lease was not for legal necessity or for benefit of the estate of the Mutt. Secondly, even the recitals in Ex.A2 do not show that there was any legal
necessity or benefit to the estate which impelled the late Madadhipathi to execute Ex.A2. Thirdly, the plaintiff within a period of nine months of his
assuming office, has challenged the alienation by issuing a notice through his Advocate on 5th September, 1957, unlike in the case referred to
where several shebaits who succeeded the alienor have not challenged the permanent lease Fourthly, the Madadhipathi who granted the permanent
lease in 1916 died only in the year 1957 and it is only after his death and not during his lifetime the permanent cowle or lease could be challenged.
The plaintiff has filed the suit within 12 years from the date of assuming office. The suit is well within time and the issue on the question of limitation
was not pressed in the lower court, It cannot therefore be said that in this case a presumption would arise that the grant of permanent lease was
made for legal necessity and for the benefit of the estate so as to bind the Mutt after the lifetime of the Madadhipathi who granted it.
The next contention of the learned counsel for the appellant is that the profits realised out of the improvements made by the lessee cannot be
termed as mesne profits. S.2(12) of the CPC runs thus :
''mesne profits'' of property means 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 profit, but shall not include profit due to improvements made by the person in
wrongful possession.
A reading of that section shows that mesne profits shall not include profits due to improvements made by a person in wrongful possession.
Sadasivam Pillai was a permanent lessee and his rights were transferred to the defendant''s father and the defendant is said to have got the property
in a partition effected in his family. The possession of the suit property by the defendant is therefore that of a permanent lessee. It cannot be said
that a permanent lessee is a person in wrongful possession during the lifetime of the Madadhipathi who granted the permanent lease. Further it
should also be noted here that when the lease was granted under Ex.A2, the suit property was a barren land not brought under cultivation as is
evident from the recitals in Ex. A2. The coconut trees and mango trees have been planted by the permanent lessee and by the defendant''s father.
Therefore, any profit which accrued from the usufructs of these trees are not mesne profits and consequently the decree granted to the plaintiff
against the defendant for Rs. 4,162,50 towards past mesne profits, is wrong. That disposes of the substantial questions of law raised.
As regards improvements, the appellate Court has found that the defendant if not entitled to value of improvements of the property belonging
to the Mutt following the ruling in Sri-La-Sri Shanmuga Desika Gnanasambanda Pandarasanadhi v. Anandakrishna Swaminaidu 59 Mad. 492; 43
L.W. 327 : AIR 1936 Mad. 247 : 70 M.D.J. 155. No ground expressly has been taken in the memorandum of grounds of appeal challenging this
finding of the appellate Court though in ground No 22, a reference is made to the reclamation by the lessee and by his successors. There is no
other contest in this second appeal.
In the Cross-objections, the plaintiff attacks the decree of the appellate Court dismissing the suit in respect of item No 2. According to the
plaintiff, the lower appellate Court ought to have decreed the suit for possession in regard to item No. 2 also. The further contention is that the
lower appellate Court ought to have granted past profits at the rate claimed by the Cross objector It has already been found that the plaintiff will
not be entitled to past mesne profits. As regards item No. 2, the lower appellate Court has clearly found that the original lessee, Sadasivam Pillai,
has encroached upon item No. 2 and planted trees and after his death, his heirs sold it to respondent''s father along with item No. 1. It is also
pointed out that under Ex. A6 issued by the plaintiff, item No. 2 has not been reclaimed. The defendant has offered to pay rent only in respect of
item No. 1. It is also found that there is no proof that item No. 2 was an accretion to item No. 1. There is no proof that item 2 belongs to the
plaintiff-Mutt. The suit was rightly dismissed in respect of item No. 2. The result is, the decree granting past mesne profits of Rs. 4,162,50 alone is
set aside and in other respects the decree of the first appellate Court is confirmed. The second appeal is allowed to that extent and is dismissed in
other respects. The Cross-objection is dismissed without costs. The patties will bear their own costs in the second appeal.