KADIR IBRAHIM ROWTHER Vs. ARUNACHELLAM CHETTIAR

JUDGEMENT

(1.) We do not think that the suit is barred by Section 43, Civil Procedures. Code, (Act XIV 1882). The Small Cause suit was not framed as a suit for the rent of F. 1306. It was based on an alleged entrustment of the paddy by the zemindar to the tenant for safe custody. The cause of action, therefore, for the non-payment of rent in the present suit is different from that in the Small Cause suit.

(2.) The appellant further contends that the lease under which the plaintiffs claim is wholly invalid and void because it is for a term of 25 years, whereas Section 3d of the Indian Trusts Act enacts that no trustee shall lease trust property for a period exceeding 21 years except with the permission of the Court. He relies on the case of the Bishop of Bang or V/s. Parry (1891) 2 Q.B. 227. That was a case on the construction of the language of Section 29 of the Charitable Trusts Amendment Act, 1855. It related to a charitable trust, and the learned Judge who decided it relied on a decision under Section 3 of Statute 13 Eliz., C. 10, in which the language of the statute is that the leases there referred to are "utterly void and of no effect to all intents, constructions and purposes." In Section 36 of the Indian Trusts Act there is no such declaration that leases in excess of 21 years are void. Each statute must be construed with reference to its own language and scope.

(3.) The Indian Trusts Act refers to private trusts. Section 36 is intended for the benefit of the cestui que trust and this is secured better by treating such leases as voidable than by holding that they are necessarily illegal and Void. We are of opinion that such leases are not void as being malum prohibitum and illegal per se, though they, no doubt, are voidable at the instance of the cestui que trust. The District Munsif has dealt fully with the question in paragraphs 11 to 15 of his judgment, and we are of opinion that the cases quoted by him Sinaya Pillai v. Munisami Ayyan 22 M. 289; Mayan Pathuti V/s. Pakuran 22 M. 347 and Turner v. The Bank of Bombay 25 B. 52 justify us in the view that we take as to the proper construction to place on Section 36 of the Trusts Act. 3. We, therefore, dismiss these Second Appeals and the Civil Revision Petition with costs.