V. Parthasarathi Aiyangar and Others vs Doraisami Naicker and Another

Spencer J.

The question referred to us is whether a tenant in occupation of trust lands belonging to a temple or mosque can enforce a compulsory sale u/s 9

of the Madras City Tenants'' Protection Act and require the temple or mosque to deliver the land to him on a valuation to be made by the Court.

There is no difficulty, to my mind, in including the trustees of temples, mosques and other religious endowments within the definition of ""landlord

in Section 2 of Madras Act III of 1922, as they certainly are persons entitled to collect the rent of the land on behalf of another person. A greater

difficulty arises when we come to consider Section 9. This section provides for the compulsory sale by a landlord of land in the possession of a

tenant in the City of Madras from which the tenant is sought to be ejected in a suit instituted under the Presidency Small Cause Courts Act. The

explanation to this section defines ""land"" as ""the interest of the landlord in the land and all other interests which he can, convey under any power."" If

they, signify easements and other subsidiary interests, it would have been easy for the Act to so describe them. If the title to the land is intended to

be included, has a trustee power ""to convey it?"" In Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M.

709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6

L.W. 222 : 44 I.A. 147 (P.C.), the Judicial Committee, quoting the words of Lord Justice Knight Bruce in Hunoomanpersaud Panday v.

Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147,

observe, ""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."" And at page 716*, quoting Sir Montague E. Smith''s words, they say:

There is no doubt that, as a general rule of Hindu Law, property given for the maintenance of religious worship and of charities connected with it,

is inalienable."" They then proceed to consider what kind of benefit will justify an absolute alienation of temple property. Among benefits to an

estate they include the preservation of the estate from extinction, the defence against hostile litigation affecting it, the protection of it from injury or

deterioration. These and such like things they say would obviously be benefits. In Magniram Sitaram v. Kasturbhai Manibhai 66 Ind. Cas. 162 : 49

I.A. 54 : 26 C.W.N. 473 : 42 M.L.J. 501 : 30 M.L.T. 268 : 20 A.L.J. 371 : 35 C.L.J. 421 : 24 Bom. L.R. 584 : (1922) M.W.N. 319 : 46 B.

481 : A.I.R.(1922) (P.C.) 63 , there is an observation : ""The disability of a shebait to make a permanent grant is not absolute."" A trustee then, like

the guardian of an infant, has power to convey portions of the corpus of trust property under circumstances of necessity or where the conveyance

will be for the benefit of the estate. As the Act which we are considering creates a statutory necessity for land lords to sell portions of their land

where the conditions fulfil the terms of the Act, it may be argued that even trustees landlords are under the necessity of selling land to their tenants

as provided in Section 9. A similar statutory necessity arises when land is acquired by Government under the Land Acquisition Act. Section 31 of

that Act speaks of persons ""having a limited interest"" in land and provides for cases where there is ""no person competent to alienate the land.

Section 32 also speaks of certain persons as having ""now power to alienate"" lands acquired under the Act. In Kamini Debi v. Promotho Nath

Mookerjee 10 Ind. Cas. 491 : 39 C. 33 : 13 C.L.J. 597. Mookerjee, J., observes, that the trustees will come under the category of persons who

have ""no power to alienate"" and dedicated to an idol or to religious and charitable purposes. In this Presidency also it is the practice to apply these

sections whenever land belonging to temples and mosques> is acquired for a public purpose. But Section 32 provides a safeguard for the

preservation of the money awarded as compensation by directing that it shall be invested in the purchase of other lands and meanwhile deposited

or invested in some approved securities. Madras Act III of 1922 does not contain any such safeguard. The presumption, therefore, is that the

legislature did not intend to so endanger the preservation of trust properties as to include them under the definition of ""land"" which can be conveyed

under any power."" I am, therefore, of opinion that the question referred to us should be answered in the negative.

Venkatasubba Rao, J.

I entirely agree.

The question to be determined in this Reference is whether a tenant can compel a trustee of a temple u/s 9 of the Madras City Tenants''

Protection Act Madras Act III of 1922, to sell him the land on which the tenants has constructed a building. The point has been referred for the

opinion of the High Court by the Judge of the City Civil Court, Madras, who states that mote than a hundred ejectment suits are now pending

disposal in respect of land belonging to a temple or mosque or other charitable or religious trust and that he entertained considerable doubt

regarding the interpretation of the word ""land"" in Section 9 of the said Act.

The object of the Act is stated to be to give protection to tenants who, in many parts of the City of Madras, have constructed buildings on

others lands in the hope that they will not be evicted so long as they pay a fair rent for the land.

Section 3 provides that every tenant shall on ejectment be entitled to be paid as compensation the value of any building erected upon the land.

Section 4 enacts that, in a suit for ejectment in which the landlord succeeds, the Court shall ascertain the amount of compensation payable u/s 3,

and direct that, on payment by the landlord of the amount so found due, the tenant shall put the landlord into possession of the land with the

building thereon.

It will be seen that the effect of Sections 3 and 4 is that the landlord becomes on payment of a price the owner of the tenant''s building.

Section 9 provides for cases where tenants are not anxious to obtain compensation for the buildings, but, on the contrary* are desirous of

obtaining the land on which the buildings stand. It enacts that any tenant, who is entitled to compensation u/s 3 and against whom a suit in ejectment

has been instituted, may apply to the Court for an order that the landlord shall be directed to sell the land for a price to be fixed by the Court. The

Court shall then fix the price and shall order that the tenant shall pay into Court the price so fixed. On payment of the price, the Court shall pass a

final order directing the conveyance of the land by the landlord to the tenant. u/s 9, therefore, the tenant, instead of parting with his building,

becomes the owner of the land on which the building has been constructed.

The term ""landlord"" is defined by Clause (3) of Section 2. ""landlord"" means any person owning any land, and includes every person entitled to

collect the rent whether on his own account or on behalf of and the person or by virtue of any transfer from the owner or of any order of a

competent Court or of any provision of law.

The definition is comprehensive enough to include trustee of a charitable endowment. I may state that a farmer of rents, a usufructuray

mortgagee, a Receiver appointed by Court, a committee of a lunatic or a guardian of a minor would undoubtedly come within the definition. The

difficulty is created by the Explanation to Section 9. It runs thus; ""''Land'' means the interests of the landlord in the land and all other interests which

he can convey under any power."" A. person absolutely owning the land can convey it, but what is the interest that can be conveyed in the case of a

person who is entitled to an interest short of absolute ownership? If a lease is granted by a usufructuary mortgagee or by lessee for a term of years,

if either of them files a suit against a tenant who has erected a building-it cannot possibly be contended that by a conveyance u/s 9 a higher right

can pass, to the tenant than is possessed by the mortgagee or the lessee, the plaintiff in the suit. But there is a class of landlords who occupy a

position very different from that occupied either by absolute owners or persons with admittedly a very limited, right in the property such as lessees

for a term of years or usufructuary mortgagees. To take only a few cases, managers of joint undivided Hindu families, Hindu widows, trustees of

temples or other religious endowments, and guardians of minors would fall in this category. There are no words in the Act which indicate the

intention of the Legislature in regard to these various classes of landlords. It is indeed strange that an Act, whose assumed object is to afford

protection to tenants, should be silent in matters so vital as this. On behalf of the tenants it has been argued before us that we must presume that the

Legislature intended to protect tenants irrespective of considerations that have reference to the extent of interest possessed by the landlords in the

land leased. I do not think we would be justified in presuming anything of the kind. We must gather the intention of the Act, if possible, from the

words used.

What is the meaning of the words ""under any power"" used in Section 9? The word ""power"" occurs both in Indian Acts and decisions of the

Judicial Committee of the Privy Council and of various Courts in India. Confining my observations to the case of trustees, I. may first refer to

Pvosunno Kumari Dchya v. Golab Chand Baboo 2 I.A. 145 14 B.L.R. 450 : 3 Sar. P.C.J. 449 : 23 W.R. 253 : 3 Suth. P.C.J. 102, where Sir

Montague E. Smith in delivering the judgment, of their Lordships observes:

But notwithstanding that property devoted to religious purposes is, as a rule, inalienable, it is, in their Lordships'' opinion, competent for the shebait

of property dedicated to the wordship of an idol...to, incur debts and borrow money for the proper expenses of keeping up the religious worships

repairing the temples or other possessions of the idol, defending hostile religious, attacks, and other like objects. The power, however, to incur

such debts must be measured by the existing necessity for incurring them. The authority of the shebait of an idol''s estate, would appear to be in this

respect analogous to that of the manager for an infant heir.

Regarding the power of the manager for an infant heir, the observations of Lord. Justice Knight Bruce in Hunoomanpersaud Panday v.

Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81: Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 are

quoted: ""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.

In Palaniappa Chetty v. Sreemath Deivasikamony Pandma Sannadh 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 : 1

P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147, the power of a

trustee to grant a permanent lease or temple lands was considered. Their Lordships of the Judicial Committee held that, unless a trustee is

constrained thereto by unavoidable necessity or any benefits accrued to the charity, he cannot grant a lease in perpetuity of debutter lands at a

fixed rate. They observe that it is impossible to give a precise definition of ""benefit to the estate,"" but they indicate that the preservation of the estate

from extinction, the defence against hostile litgation affecting: it, the protection of it or portions from injury or deterioration by inundation would be

benefits.

Referring to Hunoomanpersaud''s case 6 M.I.A. 393 : 18 W.R. 8 : Sevestre 253n : 2 Suth P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 their

Lordships observe, ""in that particular case in reference to which this language was used, the ''necessity'' for the loan would appear to have been

plain and imperative, the benefit, to the estate, the preservations of its existence, obvious."" This and similar passages in the judgment will make it

clear that the word ""benefit"" is used in this context in a special sense. In ,the course of the judgment their Lordships further observe that it is a

breach of duty on the part of a shebait in the absence of necessity or benefit to grant a lease in perpetuity at a fixed rent.

An argument was advanced before the Judicial Committee that the charity will be benefited by a transaction which put at the shebait''s disposal

a sum of money capable of being profitably used. Their Lordships say that no authority has been cited giving any contenance to the notion that a

shebait is entitled to sell debutter lands solely for the purpose of investing the price so as to bring in an income larger than that derived from the

probably safer and certainly more stable property, the land itself.

These principles have not in the slightest degree been departed from in Bawa Magniram Sita Ram v. Kastunbhai Manibhai 66 Ind. Cas. 162 :

49 I.A. 54 : 26 C.W.N. 473 : 42 M.L.J. 501 : 30 M.L.T. 268 : 20 A.L.J. 371 : 35 C.L.J. 421 : 24 Bom. L.R. 584 : (1922) M.W.N. 319 : 46 B.

481 : A.I.R.(1922) (P.C.) 63 , where it was held that the disability of a shebait to make a permanent grant is not absolute and that, although the

manager for the time being has no power to make a permanent alienation in the absence of proved necessity, yet the existence of justification may

be presumed from the long lapse of time between the alienation and the challenge of its validity. In that particular case there was an interval of a

hundred years between the date of sale, and the date of the challange of its validity.

It is not necessary to refer to further decisions on this subject and it may be taken to be settled law that the power of a trustee of temple

property is limited and that an alienation by him in the absence of necessity or benefit will not be upheld.

This being the state of the law, what do the words ""under any power"" in Section 9 cannote? Can it be said that the trustee can convey the

interest which, he can convey only, when necessity exists or when the alienation is for the benefit of the estate?

In other words, if the construction urged 011 behalf of the tenants is adopted, the explanation to Section 9 will be equivalent to this : ""Land

means the full interest which a trustee can convey under the power possessed by him to convey trust property when necessity exists or the

alienation is for the benefit of the estate.

I do not think that this construction can be adopted. It has been argued that there is a statutory liability imposed by virtue of the Act itself, upon

trustees to convey the land and that this constitutes sufficient necessity to justify an alienation. The argument begs the question because the point to

be decided by us is--Does the Act impose such a statutory liability?

The decisions bearing upon the interpretation of the word ""power"" used in the various Acts, such as the CPC and the Insolvency Act, gives us''

very little assistance in understanding the expression ""under any power"" in Section 9. I may refer to Fakir Chand Motichand v. Motichnnd

Hurruckchand 7 B. 438 : 8 Ind. Jur. 93 : 4 Ind. Dec. 294, which deals with the power vested in the Official Assignee! to dispose of the insolvent''s

son''s interest in ancestral property for the payment of his debts and two other similar cases Rangayya Cheth v. Thamkachalla Mudah 19 M. 74 :

and Nunna Brahmayya Setti v. Chidaraboyina 6 Ind. Dec. 757 6 M. 214. I may also refer to Jagabhai Lalubhai v. Vijbhukandas Jagjivandas 11

B. 37 : 6 Ind. Dec. 24, which refers to the expression in Section 266 of the CPC (Act XIV of 1882) ""has disposing power which he may exercise

for his own benefit.

The provisions of the Land Acquisition Act, I of 1894, seems to me to furnish a guide in regard to the determination or the question at issue. In

that Act are to be found three expressions (1) persons interested in the land, (2) persons entitled to act, and (3) persons competent to alienate the

land or having power to alienate the same. Section 3 (g) mentions trustees among persons entitled to act. The clause runs thus, ""the following

persons shall be deemed persons ''entitled to act'' as and to the extent hereinafter provided, that is to say, trustees for other persons beneficially

interested shall be deemed the persons entitled to act with reference to any such case, and that to the same extent as the persons beneficially

interested could have acted if free from disability."" If there are no persons competent to alienate the land, the Act prescribes that the compensation

shall be deposited in Court and the Court shall order the money to be invested in the purchase of other lands. In Kamini Debt v. Promotha Nath

Mookerjee 10 Ind. Cas. 491 : 39 C. 33 : 13 C.L.J. 597 and Ramprasanna Nandi Chowdhuri v. Secretary of State for India 22 Ind. Cas. 272 :

40 C. 895 : 19 C.W.N. 652, it was held that a shebait is a person incompetent to alienate for the purposes of Sections 31 and 32 of the Land

Acquisition Act, I of 1894.

Section 10 contemplates various interests possessed by co-proprietors, sub-proprietors, mortgagees and tenants.

Sections 29 and 30 deal with the apportionment of the compensation. In great detail provision is made in the Land Acquisition Act to

safeguard the interests possessed by various persons in the land acquired. No such provisions are to be found in the Act under consideration. Are

we to assume that the legislature intended that the trustee should be compelled to sell the land and that he should in lieu of it receive money which

should be hence forward at his absolute disposal? If the lands in possession of trustees were intended to be included certainly we should expect to

find some provisions in the Act dealing with the investment of the funds. To adopt the construction suggested on behalf of the tenants would be in

effect to hold that the Legislature intended the conversion of trust lands into money without providing for the protection of the money so obtained.

We cannot assume that breaches of trust were intended to be facilitated by the Act.

These observations may apply to the cases of all limited owners but we have nothing to do with the consequences that may follow from our

interpretation of the sections of the Act. If the Legislature does it necessary or desirable to extend further protection to tenants, the Act may be

amended but we have nothing to do with it.

It is said that this interpretation will cause hardship to the tenants. u/s 9 the tenant may apply for an order directing the landlord to sell the land.

There is nothing in the section to compel the tenant to do so. On his applying for a direction, the Court is required to pass an order directing the

conveyance of such interest as the landlord can pass. If the landlord cannot pass any interest, the tenant cannot acquire it.

The contrast between Section 9 of the Act and Section 16 of the Land Acquisition Act is very marked. Under the latte when the Collector has

made an award the land "" vests absolutely in the Government free from all incumbrances."" The absence of these words in Section 9 indicates

conclusively that the sale to the tenant does not vest in him the land absolute.

For these reasons, I would answer the question referred to us in the negative.

Memorandum of costs will follow.