MT. IMRAT BAI Vs. MT. PHULA

JUDGEMENT

(1.) 1. Nilkanth Ram died in 1910 leaving a considerable estate which passed into the possession of Mt. Phula whom he had married as a second wife six months before bis death. Mt. Phula is said to have executed various leases and sale deeds of portions of the estate, but the transaction with which we are now concerned is a perpetual lease, Ex. P-3, which she executed on 9th January 1918 in favour of Jugal Prasad, defendant 2. By this document she leased 90.76 acres of sir and khudkast land in mauza. Banwar in perpetuity for a premium of Rs. 2,000 and an annual rent of Rs. 350. The plaintiffs, who are Nilkanth Ram's daughters by his first wife and his next reversioners, brought the suit out of which this appeal arises for a declaration that this lease will be void as against them after the death of Mt. Phula and that Jugal Prasad will not acquire any tenancy rights in the land leased to him.

(2.) THE first point to be considered is one of limitation. The lease was executed, as already stated, in 1918, and the suit was instituted in 1926. The appeal before the District Judge was first heard ex parte and it was then held that the suit was governed by Article 120, Lim. Act and was therefore barred. The case was subsequently reheard and the learned District Judge who heard the case came to a different conclusion from his predecessor and held that the suit was governed by Article 125. In Palaniappa Chetty v. Devasikamony Pandara Sannadhi AIR 1917 PC 33 their Lordships of the Privy Council have referred to a perpetual lease as an alienation and I have no doubt that a perpetual lease is an alienation within the meaning of Article 125. I agree with the learned District Judge that sir and khudkast fields are lands and I therefore hold with him that there has bean an alienation of the land and that Article 125 applies. The suit is therefore not barred by limitation. The powers of a widow to make leases or sales are now well settled. As stated at p. 198 of Edn. 7 of Mulla's Hindu Law, a widow may in the exercise of her power of management grant leases of properties belonging to the estate; but she has no power to grant a permanent lease or a lease for a long term so as to bind the reversioner unless it is justified by legal necessity, or it is for the benefit of the estate, or made with the consent of the next reversioners. The learned District Judge had held that Mt. Phula, who was a young widow, had found it impossible to cultivate the land herself and that she was therefore obliged to lease it. I accept that finding, but there is no finding that she was obliged to create a perpetual lease. The recital in the lease is as follows: On account of the want of funds therefor and for lack of hand working and honest field labour, there is no profit out of the land, but there is loss every year through cultivation on the land; and then there is a further recital about the difficulty of recovering rent from sub-tenants. There is however no recital to show that she required. Rs. 2,000 to meet debts binding on the estate and there is no pleading or evidence to show that the financial condition of the estate was such that a perpetual lease was unavoidable. I therefore hold that Mt. Phula had no authority to make this perpetual lease. By the execution of this lease Jugal Prasad became an ordinary tenant of the khudkast land leased to him, and by Section 69, C.P. Tenancy Act of 1898, which was then in force, he was not liable to be ejected from his holding by his landlord provided he paid the rent and did not divert the land to non agricultural purposes. When the C.P. Tenancy Act of 1920 came into force, he became an occupancy tenant of this land and enjoyed the same right not to be ejected except on the above grounds. It has been found that it was impossible for Mt. Phula to cultivate the land herself, but the result of a lease by her, for any period, however short, would be the, creation of an occupancy tenure which is practically permanent. I agree with the learned District Judge that the permanence of the tenure is due to the operation of the law, and that the occupancy rights which Jugal Prasad has obtained do not depend on the continued existence of Mt. Phula.