V PARTHASARATHI AIYANGAR Vs. DORAISAMI NAICKER

JUDGEMENT

(1.) 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 under Section 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.

(2.) 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/s. 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/s. 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/s. 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 : (1922) A.I.R. (P.C.) 63 (P.C.), 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/s. Promotho Nath Mookerjee 10 Ind. Cas. 491 : 39 C. 33 at p. 38 : 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.

(3.) I entirely agree.