BASDEO NARAIN Vs. MUHAMMAD YUSUF

JUDGEMENT

(1.) This second appeal arises from a suit brought by a minor son in a joint Hindu family for a declaration that a perpetual lease of ten agricultural plots granted by one of his brothers in 1922 is null and void as against the plaintiff; and praying to be put in possession of the property. The trial Court decreed the suit on the ground that the lease was not executed for the benefit of the family in that it was not for the payment of any debts binding on the family. The lower appellate Court has reversed this finding on the ground that the lease was a sound business transaction. It may be mentioned that it is agreed before us that there is an inaccuracy in the statement of the case by the learned District Judge, in that the granter of the lease was the brother and not the father of the plaintiff.

(2.) The facts are that this brother, Dhanwant Narain, acting as manager of the family, executed the lease at a rental of Rs. 70 a year, whereas the property had previously been leased and at any time may be leased at a rental of Rs. 125 a year. It has, however, been found-though no mention of the fact is made in the lease itself-that the lessees gave the lessor what is called a "nazarana" of Rs. 1,200. It is on the strength of this "nazrana" that the lower appellate Court has found that the lease was an "excellent business transaction distinctly favourable to the family." The Judge points out that although the nominal rent was Rs. 55 per annum, less than it should have been, yet the cash realized, if invested, would bring in an income which would make up for the deficiency in the annual rent.

(3.) The issue before the learned Judge, however, was not whether the transaction was a good one from a business point of view, but whether the lease was executed for the benefit of the family, and when we consider the extremely technical sense in which those words are used we have no doubt that the issue is not an issue of pure fact but one of mixed fact and law. It has been argued for the respondents that the lease was only an agricultural lease, and was not an alienation, and it is true that there is a clause in the lease by which the lessees become liable to ejectment if they should fall into arrears with their rent beyond a certain period, and if they are ejected on this ground, they lose the nazarana. "We do not believe, however, that this permanent lease can be regarded in any other light than as an alienation, to support which it was necessary to prove legal necessity or the benefit of the joint family estate. It goes further in the way of alienating the property than a usufructuary mortgage would have done, for the property is removed entirely from the control of the family, provided that the lessees pay the favourable rate of rent to which they have bound themselves. In the case of a usufructuary mortgage the mortgagor still retains the initiative and can recover the property by payment of the mortgage debt. No such initiative is left to the lessor under this lease. It is not denied before us that usufructuary mortgages have always been held by the Courts to amount to alienations of property, and we should for this reason have held this lease to be an alienation. If any authority for such a conclusion were needed it would be supplied by the case of Palaniappa Chetty V/s. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33 in which it was held by their Lordships of the Judicial Committee that a permanent lease by a shebait of land dedicated to the worship of an idol, of which he was the trustee, was invalid on the ground that he was not constrained to make the lease by any necessity by the consideration of or any benefit accruing to the estate from it.