VEERANA GOUNDAN Vs. SELLAPPA GOUNDAN

JUDGEMENT

(1.) This second appeal arises out of a suit for a declaration that the alienation of the plaint properties in 1894 by the former manager of the temple of which the plaintiff is the present pujari and manager is invalid and not binding on the plaintiff and for recovery of possession of the suit properties with mesne profits. The trial Court decreed the suit in favour of the plaintiff declaring that the alienation referred to in the plaint is not binding on the plaintiff and that the plaintiff as the present pujari-manager of the temple-is entitled to recover possession of the plaint properties, and also that the defendants are entitled to get Rs. 750 from the plaint properties with interest thereon at 6 per cent per annum. This decree of the trial Court was confirmed in appeal by the Subordinate Judge of Coimbatore. The present second appeal was by defendant 4, and on his death during the pendency of the appeal his legal representatives have been brought on record as appellants.

(2.) Two points only have been argued in this appeal, namely (1) that the plaintiff's suit to recover possession of the properties in question is barred by limitation Tinder Art. 144, and (2) that the plaintiff is estopped from questioning the validity of the permanent lease sought to be avoided in the plaint. Both the Courts below have found against these contentions, and it is not as if these points are being raised for the first time in second appeal. As regards the first point, it is agreed on both sides that the Art. applicable to the present suit is Art. 144, and the question therefore resolves itself into one of the date when the possession of the defendants became adverse to the plaintiff. The alienation on the strength of which the defendants came into possession is a permanent lease dated 24 August 1894 which was executed by the plaintiff's father who was the former pujari and manager of the temple. It is contended that either this permanent lease is valid and binding on the plaintiff, or if it is not valid and binding, the possession that was derived thereunder by the defendants was adverse from the very date of the lease, and as that was nearly 30 years before suit, the suit is barred.

(3.) It has been found by both the Courts below that while the consideration for the permanent lease recited in the document is Rs. 800, there was necessity only so far as Rs. 400 is concerned and that there was no necessity in respect of the remaining Rs. 400. This is therefore a case in which the question of necessity did arise and had to be decided. There was some necessity but not a necessity which justified the transaction so as to make it binding on the endowment for all time. In my opinion, the former pujari and manager had the power to grant a permanent lease for necessity; in other words there was no complete absence of power in him to grant a permanent lease, and the permanent lease which he actually granted, though in the absence of complete necessity, cannot be regarded as being void ab initio but only voidable. Whether there was sufficient necessity or not for it is a matter that could be decided only when the alienation is sought to be avoided and when the Court pronounces an opinion upon it; till then it cannot be said whether it is valid or invalid. Where the validity of the alienation was in doubt till the matter was actually agitated in Court it cannot be said that it was void ab intito like an obviously illegal alienation or any alienation opposed to public policy. It is enough in this connexion to refer to the decision reported in Kadiri Masthan Rowthar V/s. Sengammal 1920 43 Mad 433, which appears to be in point. The permanent lease of 1894 cannot be said to have been void ab initio; it was only voidable; and as it could not have been avoided by the person who granted it as he would have been estopped from contending that the lease was not valid, the opportunity to avoid it arose only on the death of the grantor of the lease, that is to say, on the death of the plaintiff's father which took place in March 1915. If so, the suit is within time, and I find accordingly that the suit is not barred by limitation.