ANDALAM HANUMANTHU Vs. PERURI KRISHTABRAHMAN

JUDGEMENT

(1.) The only question in this second appeal is whether a permanent lease by a mutavalli of wakf property is void or voidable. The District Munsif dismissed the suit on the ground that it is void as not for necessary purposes but on the contrary an improvident transaction. The Subordinate Judge without giving any finding on this point was of opinion that it was only a voidable transaction and reversed the decision of the District Munsif. There can be little doubt on the authorities that a permanent lease is an alienation of property which a trustee cannot ordinarily enter into. I need only refer to Rama Varma Thambiran V/s. Raman Nair [1882] 5 Mad. 89 where it was held that a lease by a trustee for 96 years was invalid. The learned Judges observed: There seems to me no real distinction between the mischief of such a transfer in perpetuity and transfer for the long period of 93 years.

(2.) In the case of Palaniappa Chetty V/s. Devasikamoni Pandara Sannadhi A. I. R. 1917 P. C. 33 their Lordships of the Privy Council observed that there was no difference in principle between the grant of a lease in perpetuity of debuttar lands at a fixed rent and an absolute alienation in perpetuity of the same kind of land in consideration of a premium and they set aside a permanent lease at a fixed rent. A similar view was taken by their Lordships of the Privy Council in Madhava Rao Waman V/s. Raghunath Venkatesh A. I. R. 1923 P. C. 205 where they held that a permanent lease of service watan lands was undoubtedly an alienation. It is not disputed before, me that in the case of Hindu religious endowments trusts a permanent lease by the trustee or manager would be invalid. But it is sought to distinguish this present case on the ground that it is wakf and that under the Mahomedan Law there is no such disability in the case of trustees. I am unable to see any distinction in principle between wakf and any other religious trusts. So far as authorities go there is a long course of decisions which have held that permanent leases by mutavallis are not. valid, but are void as being beyond the ordinary power of mutavallis.

(3.) In Shoojat Ali V/s. Zameeroodeen 5 W. R. 158 it was held that under the Mahomedan Law a mutavalli cannot grant a permanent lease of wakf. A similar view was taken in Badal Mirza v. Tinkoni Koley Dutta [1917] 26 C. L. J. 263 Akshoy Kumar Saha V/s. Brojendra [1920] 62 I. C. 674 I may also refer to the case in Mahimjan Bibi V/s. Mir Rahim Ali A. I. R. 1925, Cal. 435. Reference has been made by the respondent's vakil to the case reported in Babu Mudali v. Durvaguh Pillai [1916] 4 M. L. W. 74 where Srinivara Aiyangar, J., was inclined to the view that a lease for a longer term than the prescribed was voidable and not void; Nimaichand Addya V/s. Ghulam Hussain [1910] 37 Cal. 179 where a mortgage if for necessity was held to be valid if the Court's sanction was obtained; Buddruddin Sahib V/s. Abdul Rahim [1906] 31 Mad. 125 where it was held that a decree may be male for the sale of wakf property if conditions of necessity were shown. I may point out that in the present case it is not suggested that any leave or sanction was obtained of the Court or any other competent authority. For the proposition, that a permanent lease which has to be treated on the same footing as a permanent alienation of properties is only voidable if created by a mutavalli without the sanction of the Court or a properly constituted authority, I do not think that the authorities referred to by the respondent's vakil can, in view of the decision of the Privy Council in Palaniappa V/s. Devasikamoni A. I. R. 1917 P. C. 33 be good law. I am of opinion that the lease is void. It is argued that, even if the lease is void, it can be enforced to the extent to which the lessor could have validly leased, and reliance is placed upon Broom's Legal Maxims, p. 122. It seems to me that when a transaction is void it fails altogether and cannot be split up so as to make a new contract between the parties for the period to which the mutavalli could have legally leased the property. No authority is ceted for this proposition. It may be open to the mutavalli to grant a fresh lease if he likes within his powers, but I do not see how I can make a fresh contract by simply altering the term and leaving the other conditions intact, If the lease was for a shorter period, very probably the rent would have been much higher or some other terms included.